EXHIBIT 10.2
July 26, 2002
Mr. Xxxxxx Xxxxxxx
0000 XX 00xx Xxxxxx
Xxxx Xxxxx, XX 00000
SEPARATION AGREEMENT AND RELEASE OF CLAIMS
Dear Xx. Xxxxxxx:
This letter will serve as confirmation that your employment with
America Online Latin America, Inc. ("AOLA", together with any successors,
subsidiaries, merged entities, parent entities and their respective affiliates,
collectively the "Company") will end as set forth in this letter. This
Separation Agreement and Release of Claims ("Agreement"), upon your signature,
will constitute the complete agreement between you and the Company regarding the
terms of your separation of employment.
1. Your employment with the Company will cease at the close of business on
October 11, 2002 (the "Separation Date") on the terms and conditions
set forth in this Agreement. Effective at the close of business on the
Separation Date, you will cease to perform your duties for the Company,
you shall no longer have authority to bind the Company and you shall
not hold yourself out to third parties as having such authority. The
obligations of the Company set forth in this letter are conditioned on
your continuing to perform your duties through the Separation Date,
your compliance with all other terms and conditions of this Agreement
and your provision of a written acknowledgment (the "Acknowledgement")
in form reasonably acceptable to the Company executed as of the
Separation Date pursuant to which you will reiterate your agreement to
the terms hereof.
2. You will be paid a total severance amount equal to $181,537.50 (the
"Severance Amount"); provided, that if you accept employment with AOL
Time Warner Inc., the Xxxxxxxx Group of Companies, or any of their
respective subsidiaries or other affiliates prior to July 11, 2003
("Alternative Employment"), then the Severance Amount shall be
$121,025. The Severance Amount will be paid in equal monthly
installments, with the first monthly payment to be paid on November 18,
2002, and the other installments to be paid on the monthly
anniversaries
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thereof. In addition, you will be paid, on or prior to the date on
which bonuses are paid generally to Company employees with respect to
fiscal year 2002, 100% of the annual bonus for which you were eligible
for fiscal year 2002, which is an amount equal to $121,025ou will not
be eligible for any bonus for any period following December 31, 2002.
In addition, you shall be entitled to be paid, at the same time that
each installment of the Severance Payment is made, an additional amount
equal to 4% of each such the installment of Severance Payment being
paid. Applicable deductions and tax withholdings will be made from all
payments made pursuant to this paragraph. In addition, to the extent
you agree to enter into a Consulting Agreement on terms and conditions
satisfactory to the Company, the Company will request the Compensation
Committee of the Board of Directors of the Company to approve your
continued participation in the Company's 2000 Stock Plan in accordance
with the terms of the plan and the stock option agreements, with
respect to those stock options that have been granted to you as of the
date of this Agreement (and you shall not be entitled to receive any
additional stock option grants). You understand and agree that neither
the Company nor any of its directors or officers shall have any
liability to you if the Compensation Committee declines to provide such
approval.
3. Your benefits will continue through the Separation Date. With respect
to the Consolidated Omnibus Budget Reconciliation Act ("COBRA"), your
COBRA period will begin on October 19, 2002. You will receive separate
information regarding your option to continue, under COBRA, health
benefits after the Separation Date. To the extent and for so long (up
to nine months or, if you accept Alternative Employment, then six
months, following the Separation Date) as you elect to continue health
benefits under COBRA, the Company will reimburse you for the premiums
you pay under COBRA. In addition, to the extent that you elect to
continue the current life insurance coverage in your name following the
Separation Date, the Company will reimburse the premiums for such
insurance for a period of up to nine months following the Separation
Date. All other benefits will terminate on the Separation Date.
4. Prior to your departure from work on the Separation Date, you must
return to the Company all the Company property in your possession,
including, but not limited to, keys, pagers, and the original and all
copies of any written, recorded, or computer-readable information about
Company practices, procedures, trade secrets, customer lists, or
product marketing associated with the Company's online services
business; provided, that you may retain following the Separation Date
your cellular phone and your laptop computer (after all Company
confidential information has been removed from the hard drive). As
provided in AOLA's Confidential Information, Non-Competition and
Proprietary Rights Agreement which you signed dated June 26, 1999 (the
"NDA"), you have agreed not to disclose to others information about the
Company's practices, procedures, trade secrets, customer lists, or
product marketing, except as required by law, and that agreement
remains in full force and effect, and shall remain in full force and
effect following your separation from the Company.
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5. In addition, (i) upon your request, and subject to the applicable
policies of Sprint PCS, the Company will transfer into your name the
cellular telephone number and account with Sprint PCS currently
attributed to you, provided that you will then be financially
responsible for such account and (ii) you will be entitled to keep your
AOL screennames and AOL account (subject to the terms of service and
other terms and conditions that may be imposed by AOL, Inc.), provided
that you will then be financially responsible for such account.
6. The agreement of the Company to agree to pay you the Severance Amount
and your full bonus with respect to fiscal years 2002, and to enter
into a separate consulting agreement (which facilitates your
eligibility to continue under the Company's stock option plan, as
described above) are being offered solely in consideration for your
release of claims, as set forth in Paragraph 7, your execution and
delivery of the Acknowledgment, your compliance with this Agreement and
your continued compliance with the NDA as set forth above. Such
agreements are not, and should not be construed as, an admission of any
kind whatsoever by the Company, and the Company denies it has engaged
in any wrongdoing against you.
7. In consideration of the Company's agreement as stated above, you agree
to discharge and release unconditionally the Company, ADP TotalSource
(as co-employer), their successors and their respective predecessors,
subsidiaries, affiliates, related entities, merged entities and their
parent entities, and their respective officers, directors,
stockholders, employees, benefit plan administrators and trustees,
agents, attorneys, insurers, representatives, affiliates, successors
and assigns (the "Releasees") from any and all claims, actions, causes
of action, demands, obligations or damages of whatever nature, whether
known or unknown to you, which you ever had or now have upon or by
reason of any matter, cause or thing, up to and including the day on
which you sign this Agreement, arising from your employment with the
Company and separation of your employment with the Company or
otherwise, including any claim arising out of or related to any stock
options held by you or granted to you by the Company which are
scheduled to vest subsequent to your Separation Date (all of the
foregoing, collectively "Claims"). The Claims you are waiving include,
but are not limited to, any and all claims arising out of or related to
or under: any stock options held by you or granted to you by the
Company which are scheduled to vest subsequent to your Separation Date;
Title VII of the Civil Rights Act of 1964, as amended; the Employee
Retirement Income Security Act; the Americans with Disabilities Act;
the Age Discrimination in Employment Act; the Fair Labor Standards Act;
the Worker Adjustment and Retraining Notification Act (WARN), or
similar statutes; the Fair Labor Standards Act; the Family Leave and
Medical Act; the National Labor Relations Act; the Employee
Retirement Income Security Act; 42 U.S.C. 1981; the Older Workers
Benefits Protection Act; Chapter 760, Florida Statutes; Chapter 448,
Florida Statutes; analogous federal, state and local laws, regulations,
statutes or ordinances; any principle of common law; all claims for any
type of relief from the Releasees, and any other federal, state and
local claims, whether statutory or common law, and whether tort or
contract. This release of claims does not affect any pending claim for
workers' compensation benefits, your vested rights, if any, in the
Company's 401(k) plan, or your rights to exercise any and all Company
stock options held by you that
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are exercisable as of your Separation Date during the applicable period
of exercise and in accordance with all other terms of those options and
the stock option plans, agreements and notices under which such options
were granted.
8. You agree to assist the Company, upon its reasonable request, in
connection with any litigation, investigation or other matter arising
out of or related to your service as an employee, officer, or director
of the Company. The Company will reimburse you for the reasonable
out-of-pocket costs incurred by you in rendering such assistance to the
Company.
9. You represent and agree that you have not filed any complaint or charge
or lawsuit of any kind whatsoever against the Company with any other
governmental agency or any court and you further represent and agree
that you will not file or institute or participate in any litigation,
award or judgment with any State or Federal court any time hereafter
or, unless required by law or pursuant to Paragraph 8 above, testify or
provide documents or information for or to any other person or entity
with regard to any matter related to or arising out of your employment
with the Company or the termination thereof, this Agreement or any
matters released herein; provided, that this shall not limit you from
filing a lawsuit for the purpose of enforcing your rights under this
Agreement.
10. You understand and agree that the terms of this agreement are
confidential, and you agree not to disclose to others the terms of this
Agreement, except as required by law or with the written consent of the
Company, provided, however, that this paragraph does not preclude
disclosure to your immediate family or for purposes of securing
professional financial, tax or legal services, provided further that
prior to making any such disclosure you will inform any such persons
that this confidentiality clause is in effect and that they are bound
by it.
11. You agree not to make any untruthful remarks or statements about the
Releasees and their respective officers, directors, employees or
agents. You agree that this Agreement will be filed by the Company with
the United States Securities and Exchange Commission.
12. You agree that in the event you breach any of your obligations under
paragraph 1, 4, 8, 9, 10 or 11 of this Agreement, the Company will be
entitled to seek recovery or setoff of the full amount of the Severance
Payment, bonus and other amounts paid or to be paid to you following
October 18, 2002.
13. This Agreement shall be governed by and construed in accordance with
the laws of the State of Florida, with regard to any otherwise
applicable principles of conflicts of law.
14. If any portion of this Agreement should ever be determined to be
unenforceable, it is agreed that this will not affect the
enforceability of any other clause of the remainder of this Agreement.
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15. You understand that you have been given a period of 45 days to review
and consider this Agreement and to consult with an attorney and other
advisors of your choice before signing it. You further understand that
you may use as much of this 45-day period as you wish prior to signing.
You further acknowledge that you have received certain supplemental
information, which constitutes the disclosure required to be provided
under the Older Workers Benefit Protection Act.
16. You make revoke this Agreement within seven (7) days of signing it.
Revocation can be made by delivering written notice of revocation to
America Online Latin America, Inc., 0000 X. Xxxxxxx Xxx., Xxxxx 000,
Xx. Xxxxxxxxxx, XX 00000, Attn: President. For this revocation to be
effective, written notice must be received by the President of the
Company no later than the close of business on the seventh day after
you sign this Agreement. If you revoke this Agreement, it shall not be
effective or enforceable and Employee will not receive the benefits
described in this Agreement.
Sincerely,
/s/ Xxxxxxx X.Xxxxxxxxx
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Xxxxxxx X. Xxxxxxxxx
President and Chief Executive Officer
America Online Latin America, Inc.
By signing this letter, I acknowledge that I have had the opportunity to review
this agreement carefully with legal or other personal advisors of my own choice;
I understand that by signing this agreement I am releasing the Company from all
claims against it; that I have read this agreement and understand its terms;
that I have been given a reasonable period of time to consider its terms and
effect and to ask any questions I may have; and that I voluntarily agree to
them.
/s/ Xxxxxx Xxxxxxx Dated: 7/26/02
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Xxxxxx Xxxxxxx
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