Exhibit 10.1
SEPARATION AGREEMENT AND
GENERAL RELEASE
This SEPARATION AGREEMENT and
GENERAL RELEASE (hereinafter referred to as this
“Agreement”) is made and entered into by and between
Louis Mamakos (“Executive”) and Vonage Holdings Corp.
(defined herein to include its affiliates, subsidiaries,
predecessors and successors and hereinafter referred to as
“Vonage”), effective as of March 27, 2009 (the
“Effective Date”). Executive and Vonage are hereafter
referred to as the “Parties.”
WHEREAS, Executive has been employed
by Vonage as its Chief Technology Officer;
WHEREAS, Executive and Vonage
entered into an Employment Agreement, amended effective as of
January 1, 2009 (the “Employment
Agreement”);
WHEREAS, Executive is resigning from
his positions as Chief Technology Officer, effective as of the
Effective Date, which resignation, pursuant to Section 4(e) of
the Employment Agreement, constitutes Executive’s resignation
from any officer or employee position Executive has with the
Company Group (as defined in the Employment Agreement) and all
fiduciary positions (including as trustee) Executive holds with
respect to any employee benefit plans or trusts established by
Vonage, also effective as of the Effective Date;
WHEREAS, Vonage and Executive have
read this Agreement and have had the opportunity to review it with
their respective legal counsel; and
WHEREAS, Vonage and Executive desire
to resolve any and all issues and claims between them, including
without limitation, Executive’s employment and his separation
as an employee of Vonage, as well as any and all issues and claims
arising from or relating to the Employment Agreement, and to reach
an amicable accord and settlement concerning their future
relationship.
NOW, THEREFORE, in consideration of
the premises and mutual promises herein contained, it is agreed as
follows:
1. Separation of Employment;
Consulting Arrangement .
(a) Effective as of the Effective
Date, Executive hereby resigns from his position as Chief
Technology Officer of Vonage, from all director, officer and
employee positions Executive has with the Company Group (as defined
in the Employment Agreement) and from all fiduciary positions
(including as trustee) Executive holds with respect to any employee
benefit plans or trusts established by Vonage.
(b) In consideration for the
payments and benefits specified in paragraph 4(a) infra ,
during the six month period after the Effective Date (the
“Severance Period”), Executive agrees to provide Vonage
transition services of up to sixteen (16) hours per week for
technical, operational, legal (whether patent infringement
litigation or evaluation, law enforcement subpoenas or inquiry or
otherwise), intellectual property or strategy, training newly hired
technical executives or addressing other questions that may arise,
as the foregoing pertain to such
prior areas of Executive’s responsibility
or expertise during Executive’s employment through the
Effective Date. Executive understands that such services may
require Executive to travel to Vonage’s facilities or other
locations, and Vonage agrees to reimburse Executive for reasonable
travel expenses in accordance with Vonage’s Travel and
Expense Policy then in effect.
(c) From September 27, 2009
through March 27, 2010 (the “Consultancy Period”),
Executive agrees to make himself available for up to twelve
(12) hours per week for any technical, operational, legal
(whether patent infringement litigation or evaluation, law
enforcement subpoenas or inquiry or otherwise), intellectual
property or strategy, training newly hired technical executives or
addressing other questions that may arise, pertaining to
Executive’s prior employment subject to Executive’s
reasonable availability. Executive will be compensated at the rate
of $190 per hour for such services. Executive understands that such
services may require Executive to travel to Vonage’s
facilities or other locations, and Vonage agrees to reimburse
Executive for reasonable travel expenses in accordance with
Vonage’s Travel and Expense Policy then in effect.
(d) Vonage and Executive shall
cooperate in scheduling the time for Executive’s performance
of services described in this Paragraph 1, provided that absent
extraordinary circumstances, Executive will make himself available
as may be needed by Vonage for such services, particularly with
regard to the provision of such services during the Severance
Period and with regard to patent infringement litigation and law
enforcement subpoenas or inquiry or other similar legal issues.
Vonage and Executive acknowledge that such services are for the
purpose of transitioning Executive’s functions and
responsibilities to other personnel, providing assistance in patent
infringement litigation and with regard to law enforcement issues,
and that Executive shall not be involved in business activities not
conducted by Vonage as of the Effective Date or prospective lines
of business in which Executive was not involved prior to the
Effective Date.
(e) Executive shall record all hours
worked on a weekly basis and submit them to Michael Porter, Vice
President of Human Resources at Vonage, within a few days of the
close of the work week for which he recorded his hours.
2. Non-Admission . It is
specifically understood and agreed that this Agreement does not
constitute and is not to be construed as an admission or evidence
of (a) any violation by Vonage or Executive, of any federal,
state or municipal law, statute or regulation, or principle of
common law or equity, (b) the commission by Executive or
Vonage of any other actionable wrong, or (c) any wrongdoing of
any kind whatsoever on the part of Executive or Vonage, and shall
not be offered, argued or used for that purpose.
3. General Release
.
(a) In exchange for the
consideration provided in this Agreement, and as a material
inducement for both Parties entering into this Agreement, Executive
for himself, his heirs, executors, administrators, trustees, legal
representatives, successors and assigns (hereinafter collectively
referred to for purposes of this Paragraph 3 as
“Executive”) hereby irrevocably and unconditionally
waives, releases and forever discharges Vonage and its past,
present and future affiliates and related entities, parent and
subsidiary corporations, divisions, shareholders, predecessors,
future officers, directors, trustees, fiduciaries, administrators,
executives, agents, representatives, successors and assigns
(hereinafter collectively referred to for purposes of
this
Paragraph 3 as “Vonage”) for any and
all waivable claims, charges, demands, sums of money, actions,
rights, promises, agreements, causes of action, obligations and
liabilities of any kind or nature whatsoever, at law or in equity,
whether known or unknown, existing or contingent, suspected or
unsuspected, apparent or concealed, foreign or domestic
(hereinafter collectively referred to as “claims”)
which he has now or in the future may claim to have against Vonage
based upon or arising out of any facts, acts, conduct, omissions,
transactions, occurrences, contracts, claims, events, causes,
matters or things of any conceivable kind or character existing or
occurring or claimed to exist or to have occurred prior to the
Effective Date in any way whatsoever relating to or arising out of
Executive’s employment with Vonage. Such claims include, but
are not limited to, claims arising under the Age Discrimination in
Employment Act, 29 U.S.C. § 621 et seq. ; Title
VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
et seq. ; the Americans with Disabilities Act of
1990, 42 U.S.C. § 12101 et seq. ; the Family and
Medical Leave Act of 1993, 29 U.S.C. § 2601 et
seq. ; the Employee Retirement Income Security Act of 1974,
29 U.S.C. § 1001 et seq. ; the Equal Pay Act of
1963, 29 U.S.C. § 206(d); Section 806 of the Corporate
and Criminal Fraud Accountability Act of 2002, 18 U.S.C. §
1681 et seq. ; the Fair Credit Reporting Act, 15
U.S.C. §1681 et seq. ; any other federal, state
or local statutory laws including, but not limited to, the New
Jersey Law Against Discrimination, the Conscientious Employee
Protection Act, the New Jersey Wage Payment Law, the New Jersey
Family Leave Act, all as amended; the common law of the State of
New Jersey; any claim under any local ordinance, including, but not
limited to, any ordinance addressing fair employment practices; any
common law claims, including but not limited to actions in tort,
defamation and breach of contract; any claim or damage arising out
of Executive’s employment with or separation from Vonage
(including a claim for retaliation) under any common law theory or
any federal, state or local statute or ordinance not expressly
referenced above; and any and all claims for counsel fees and
costs.
(b) To the fullest extent permitted
by law, and subject to the provisions of Paragraphs 3(d) and 3(e)
below, Executive represents and affirms that he has not filed or
caused to be filed on his behalf any claim for relief against
Vonage or any releasee and, to the best of his knowledge and
belief, no outstanding claims for relief have been filed or
asserted against Vonage or any releasee on his behalf. Executive
further covenants that he will not file or cause to be filed any
claims for relief against Vonage or any releasee which has been
released herein.
(c) In waiving and releasing any and
all waivable claims whether or not now known, Executive understands
that this means that, if he later discovers facts different from or
in addition to those facts currently known by him, or believed by
him to be true, the waivers and releases of this Agreement will
remain effective in all respects — despite such different or
additional facts and his later discovery of such facts, even if he
would not have agreed to this Agreement if he had prior knowledge
of such facts.
(d) Nothing in this Paragraph, or
elsewhere in this Agreement, prevents or prohibits Executive from
filing a claim with a government agency, such as the U.S. Equal
Employment Opportunity Commission, that is responsible for
enforcing a law on behalf of the government. However, Executive
understands that, because Executive is waiving and releasing, among
other things, any and all claims for monetary damages and any other
form of personal relief (per Paragraph 3(a) above), Executive may
only seek and receive non-monetary forms of relief through any such
claim.
(e) Nothing in this Paragraph, or
elsewhere in this Agreement, is intended as, or shall be deemed or
operate as, a release by Executive of his rights under the
Parties’ Indemnification Agreement, dated as of May 19,
2006 (which is amended hereby to provide that “Corporate
Status” shall include Executive’s performance of
consulting services to Vonage pursuant to this Agreement following
the Effective Date; as such agreement is hereby amended, the
“Indemnification Agreement”), or any other rights to
indemnification relating to his performance of services as an
officer and/or director of Vonage, including but not limited to
those rights to indemnification set forth in Vonage’s
Certificate of Incorporation as in effect on the date
hereof.
(f) Executive and Vonage each agree
to re-execute this Agreement at the end of the Severance Period so
that the provisions of this paragraph 3 are fully enforceable up to
and including the end of the Severance Period.
(g) In exchange for the
consideration provided in this Agreement, and as a material
inducement for both Parties entering into this Agreement, Vonage
hereby irrevocably and unconditionally waives, releases and forever
discharges Executive, his heirs, executors, administrators,
trustees, legal representatives, successors and assigns from any
and all claims, other than claims arising out of any criminal
conduct, breach of fiduciary duty, or willful or intentional
wrongdoing by Executive, which it has now or in the future may
claim to have against Executive based upon or arising out of any
facts, acts, conduct, omissions, transactions, occurrences,
contracts, claims, events, causes, matters or things of any
conceivable kind or character existing or occurring or claimed to
exist or to have occurred prior to the Effective Date in any way
whatsoever relating to or arising out of Executive’s
employment with or separation of employment from Vonage.
4. Consideration and
Post-Employment Benefits .
(a) Vonage, for and in consideration
of the undertakings of Executive set forth herein, and intending to
be legally bound, agrees that Executive is entitled to: (i) a
cash payment equal to six months of Executive’s annual base
salary, in the gross amount of One Hundred and Ten Thousand Dollars
and No Cents ($110,000), less required statutory withholdings and
deductions, which payments shall be made bi-weekly during
Vonage’s regular payroll cycles beginning on the first
payroll date after this Agreement becomes effective; (ii) a
pro rata portion of Executive’s 2009 target bonus covering
the period January 1, 2009 through the Effective Date, which
shall be determined when Vonage customarily pays 2009 bonuses and
paid on or before March 15, 2010; (iii) if Executive is
eligible for and elects continued health insurance coverage under
COBRA, Vonage will reimburse Employee the cost of Executive’s
paid COBRA premiums for a six month period; (iv) a payment for
the filing and/or issuance of any patents in which Executive is
listed as an inventor in accordance with Vonage’s patent
reward program; and (v) payment of any unpaid base salary and
accrued vacation benefits, through and including the Effective Date
and any other amounts or benefits required to be paid or provided
by law or under any plan, program, policy or practice of Vonage.
Except as set forth in this Agreement, Executive shall have no
further rights to receive any other compensation, severance or
benefits af
