EXHIBIT 10.02
SEPARATION AND GENERAL RELEASE
AGREEMENT
This SEPARATION AND GENERAL RELEASE
AGREEMENT (“ Agreement ”), dated as of
January 2, 2009, is hereby made between Stephen Brown (“
EMPLOYEE ”) and IDT CORPORATION and its
divisions, affiliates, subsidiaries (including, but not limited to,
IDT Telecom, Inc., and IDT Capital, Inc. and their respective
divisions, affiliates and subsidiaries), predecessors, successors
and assigns (collectively, “ IDT ”).
EMPLOYEE and IDT are hereinafter referred to individually as a
“ Party ” and collectively as the “
Parties .” This Agreement will become effective
on the Effective Date (as hereafter defined).
WHEREAS, the EMPLOYEE’s
employment with IDT will terminate effective as of the close of
business on January 2, 2009 (the “ Termination
Date ”); and
WHEREAS, the EMPLOYEE and IDT have
agreed, following the date hereof, to enter into a Consulting
Agreement, pursuant to which the EMPLOYEE will provide consulting
services to IDT; and
WHEREAS, the EMPLOYEE and IDT have
agreed to settle fully and finally any and all matters and/or
controversies between them under the terms and conditions set forth
in this Agreement.
NOW, THEREFORE, with the intent to
be legally bound hereby, and in consideration of the mutual
promises and covenants contained herein and other good and valuable
consideration, the receipt and adequacy of which are hereby
acknowledged, IDT and the EMPLOYEE agree to the terms and
conditions set forth below.
1. Payment .
1.1. The EMPLOYEE shall be entitled
to the following payments from IDT:
(a) The EMPLOYEE shall receive his
base salary and benefits through the Termination Date. Any base
salary earned through the Termination Date but unpaid at such time
shall be paid at such time as other active IDT employees are paid
for such period.
(b) The EMPLOYEE shall receive a
payment in the amount of $319,600.00 (the “
Payment ”). The Payment, less any amounts
already received, will be made within five business days following
the Effective Date.
1.2. The EMPLOYEE shall receive
reimbursement by IDT for all reasonable business expenses incurred
and approved prior to the Termination Date in accordance with
IDT’s policies.
1.3. All payments hereunder shall be
less required withholdings for taxes and benefit plan contributions
(if any).
1.4. Following the date hereof, IDT
and the EMPLOYEE shall execute a Consulting Agreement (the “
Consulting Agreement ”). The EMPLOYEE
acknowledges and agrees that, to the extent applicable to him, he
will comply with and be subject to IDT’s insider trading
policy during the term of the Consulting Agreement.
2. Benefits .
2.1. As of February 1, 2009,
the EMPLOYEE shall be eligible to elect the continuance of group
health and dental insurance (if the EMPLOYEE is currently enrolled
in the IDT sponsored plan), in accordance with applicable federal
law (“ COBRA ”). If the EMPLOYEE wishes
to elect COBRA coverage (continue coverage in the then current
group medical and/or dental plan after January 31, 2009), the
EMPLOYEE must complete and sign the COBRA Election Form and return
it in accordance with the COBRA instructions.
2.2. The EMPLOYEE’s premiums
for any coverage under COBRA will be the then published
rate.
2.3. After the Termination Date, the
EMPLOYEE will not continue to accrue vacation benefits or
commissions, or otherwise be eligible for Life or Disability
benefits, or continue to contribute to the IDT 401(k) Savings Plan,
or participate in the Employee Stock Purchase Plan, and will not
receive any other benefits from IDT, other than those specified in
this Agreement. The EMPLOYEE’s rights with respect to any
options to purchase IDT stock or IDT stock he may have received
from IDT are governed by the applicable award agreements and plan
documents.
2.4. Notwithstanding anything
contained herein to the contrary, from and after the Termination
Date, the EMPLOYEE shall continue to be entitled to indemnification
pursuant to any applicable provision of the Certificate of
Incorporation or By-laws of IDT which purport to create, for the
benefit of the EMPLOYEE, rights to indemnification and to any
benefits under any applicable directors and officers insurance
policies maintained by IDT (but nothing herein shall preclude IDT
from altering, amending, modifying or supplementing any provision
of its Certificate of Incorporation or By-laws or any such
insurance policy, or terminating any such insurance policy,
provided that any such alteration, amendment, modification,
supplement or termination shall apply to other IDT former or
current employees (or classes of former or current employees) in
addition to the EMPLOYEE.
3. Payment of all Outstanding
Compensation . Except for those obligations specifically set
forth in this Agreement (and any outstanding stock option and/or
restricted stock agreements) and in the Consulting Agreement, as of
the Termination Date, any and all agreements or arrangements
(whether oral or written) between the Parties related to
commissions, bonuses, ownership, severance pay, or other interests
in any entities or assets, payments and/or compensation of any kind
(“ Compensation ”) are deemed null and
void without any continuing obligation or liability of any party
thereunder; it being understood that, among other things, from and
after the Termination Date except as expressly provided hereunder
or under the Consulting Agreement, IDT will have no obligation to
pay the EMPLOYEE any Compensation or have any duties,
responsibilities or other obligations to the EMPLOYEE with respect
to any agreement or arrangement, and the EMPLOYEE will have no
rights thereunder.
4. Equipment . Unless
otherwise expressly provided in the Consulting Agreement or agreed
to between the Parties, the EMPLOYEE will return any and all IDT
property and equipment in his possession, including, but not
limited to, any and all IDT identification cards, card key passes,
keys, pagers, computers (laptops or desktops), cellular telephones,
BlackBerry or similar personal digital assistant devices, corporate
credit cards, corporate calling cards, and any other property or
equipment in his possession that IDT may not know of, on or before
the Termination Date. Notwithstanding the foregoing, the EMPLOYEE
shall be permitted to retain his laptop after IDT has deleted all
software programs, information and other data to the extent that it
deems necessary, proper or otherwise desirable. In addition, the
EMPLOYEE shall be permitted to keep his cellular telephone (and
associated telephone number) and blackberry so long as he switches
the service to a provider of his choice and assumes responsibility
for the payments for service.
5. Termination of Employment;
Resignation . The EMPLOYEE acknowledges and agrees that his
employment by IDT terminated on the Termination Date, and that he
will be deemed to have resigned from all officer positions and
directorships that he may hold with IDT (or otherwise at the
request of IDT) at such time, except as otherwise agreed to between
the Parties. On or prior to the Termination Date or such later date
as shall be requested by IDT, the EMPLOYEE shall execute and
deliver a resignation letter from such officer positions and
directorships in the form attached hereto as Exhibit A. The
EMPLOYEE acknowledges and agrees that he is due no other
compensation, commission payments, benefits or other consideration
of any kind, whether on resignation or for continued service in
agreed upon capacities, other than as specifically identified in
this Agreement and the Consulting Agreement.
6. Re-employment or
Reinstatement . The EMPLOYEE recognizes and acknowledges that
IDT has no obligation to recall, rehire, or re-employ the EMPLOYEE
in the future, except for the services contemplated by the
Consulting Agreement.
7. Cooperation .
7.1. The EMPLOYEE agrees to
cooperate with reasonable requests for advice, cooperation and/or
assistance made by IDT (which are outside the scope of the Services
to be provided under the Consulting Agreement), at no charge, in
connection with matters he worked on while employed by IDT,
including, without limitation, to assist in the orderly transition
of his duties and responsibilities and any
outstanding projects to the
individual (or individuals) designated by IDT. If after having been
provided with written notice of his failure to provide complete and
honest cooperation, the EMPLOYEE fails to cure within fifteen
(15) days, such failure will constitute a material breach of
this Agreement. IDT shall reimburse the EMPLOYEE for any
out-of-pocket expenses reasonably incurred by the EMPLOYEE at the
request (and with the prior approval) of IDT in providing such
cooperation (in accordance with IDT’s procedures).
7.2. In furtherance of the
foregoing, the EMPLOYEE agrees to cooperate with all reasonable
requests which IDT may make, including but not limited to, requests
for information, interviews, depositions (to be conducted at a
mutually convenient and reasonable time) and/or at trial related to
any legal action arising from events which occurred during the
EMPLOYEE’s employment and/or the litigation IDT is involved
with between/against, Tyco, Morgan Stanley, eBay, Blackstone, FFAM,
and the calling card competitor litigation (STi). IDT shall in good
faith attempt, when possible, to issue the above referenced
requests so as not to prevent the EMPLOYEE’s efficient
disposition of same, and the EMPLOYEE agrees to comply in good
faith with IDT’s requests.
8. No Other Inducements . The
EMPLOYEE acknowledges that the Payment described in
Section 1 (and IDT’s agreement to enter into the
Consulting Agreement) is made in consideration of and in exchange
for his execution of this Agreement and the general release. The
EMPLOYEE acknowledges that he is not otherwise entitled to receive
the payments and other items of value referenced above and in the
Consulting Agreement, absent his execution of this Agreement, and
that no other promise or agreements of any kind have been made to
him or with him by any person or entity whatsoever to cause him to
sign this Agreement.
9. Release .
9.1. For good and valuable
consideration (the receipt and sufficiency of which hereby are
acknowledged) and as a material inducement to IDT to enter into
this Agreement and the Consulting Agreement, the EMPLOYEE, for
himself and his heirs, executors, administrators, personal
representatives and members of his immediate family, hereby
voluntarily, irrevocably and unconditionally releases, acquits and
forever discharges IDT and its present and former officers,
directors, employees, shareholders, consultants, attorneys,
advisors, insurers, agents and representatives, and all persons
acting by, through, under or in concert with any of them (whether
any of the aforementioned individuals were acting as agents for IDT
or in their individual capacities) (collectively, the “
Released Parties ”) from any and all claims and
causes of action (except those necessary to enforce his rights
under this Agreement and the Consulting Agreement) including, but
not limited to, claims related to the EMPLOYEE’s employment,
or separation from employment; any claims for salary, bonuses,
commissions, payments related to severance pay, vacation pay or any
benefits under the Employee Retirement Income Security Act (except
for vested ERISA benefits which are not affected by this
Agreement); any claims for option, stock or other incentive awards;
any claim under New Jersey’s Wage and Hour Laws, or other
state wage and hour laws; any claim under the Worker Adjustment and
Retraining and Notification Act; any claim alleging sexual or other
harassment, or discrimination based on race, color, national
origin, ancestry, religion, marital status, sex, sexual
orientation, citizenship status, pregnancy, medical condition,
handicap or disability (as defined by the Americans with
Disabilities Act or any foreign, federal, state or local law), age,
or any other unlawful discrimination (under the Age Discrimination
in Employment Act, as amended by the Older Workers Benefit
Protection Act of 1990, Title VII of the Civil Rights Act of 1964,
as amended, the Americans with Disabilities Act, the Equal Pay Act,
the Violence Against Women Act, the New Jersey Law Against
Discrimination, or any other foreign, federal, state or local
laws); discharge in violation of New Jersey’s Conscientious
Employee Protection Act or other foreign, state or federal
“whistle blower” laws; discharge in violation of the
federal Family and Medical Leave Act, the New Jersey Family Leave
Act or other foreign, state or federal family leave laws; the New
Jersey Temporary Disability Benefits Law, breach of implied or
express contract, breach of promises, misrepresentation,
negligence, fraud, estoppel, defamation, infliction of emotional
distress, violation of public policy, retaliatory discharge,
wrongful or constructive discharge, retaliation, intentional tort
or for attorneys’ fees, which the EMPLOYEE or his heirs,
executors, administrators, personal representatives or members of
his immediate family now have, ever had or may hereafter have,
whether known or unknown, suspected or unsuspected, up to and
including the date both Parties have executed this
Agreement.
9.2. The EMPLOYEE, for himself and
his heirs, executors, administrators, personal representatives and
members of his immediate family, also hereby waives all rights to
file any charge or complaint against IDT arising out of the
EMPLOYEE’s employment by or termination thereof from IDT
before any federal, state or local administrative agency, except
where any law prohibits such waivers. The EMPLOYEE, for
hi
