EXHIBIT 10.44
SEVERANCE AGREEMENT AND MUTUAL RELEASE
This SEVERANCE AGREEMENT AND MUTUAL RELEASE (hereinafter,
"Agreement") is entered into by and between PANAMCO LLC, a limited liability
company organized under the laws of Delaware and d/b/a PANAMERICAN BEVERAGES
COMPANY in Florida (hereinafter, "PANAMCO"), and XXXXXXXXX XXXXXXX-XXXXXX
("XXXXXXX-XXXXXX").
WHEREAS, XXXXXXX-XXXXXX is currently employed by PANAMCO and serves
in the capacity of its Chief Executive Officer and Chairman of the Board of
Directors of Panamerican Beverages, Inc.; and
WHEREAS, the terms and conditions of XXXXXXX-XXXXXX'x employment are
described in an Employment Agreement with PANAMCO dated September 24, 1999;
and
WHEREAS, the parties hereto desire to terminate the employment
agreement and to set forth in this Agreement the terms and conditions of
XXXXXXX-XXXXXX'x termination and XXXXXXX-XXXXXX'x release and waiver of any
and all claims that he has or could possibly have against PANAMCO in exchange
for the consideration described herein;
NOW, THEREFORE, the parties agree as follows:
1. Execution of Agreement and Effective Date. XXXXXXX-XXXXXX and
PANAMCO agree that XXXXXXX-XXXXXX'x employment by PANAMCO will terminate
effective 5:00 p.m. on October 5, 2000 (hereinafter, the "Termination Date").
XXXXXXX-XXXXXX understands that the waiver language set forth in Section 3 of
this Agreement is intended to encompass his entire period of employment with
PANAMCO and, therefore, XXXXXXX-XXXXXX agrees that he is not entitled to the
benefits set forth in Section 2 of this Agreement unless XXXXXXX-XXXXXX
executes this Agreement on or after his Termination Date. This Agreement will
become effective and enforceable on the eighth (8th) day after XXXXXXX-XXXXXX
signs the Agreement.
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2. Benefits. In consideration for XXXXXXX-XXXXXX'x waiver of all
claims against PANAMCO, and the other promises made by XXXXXXX-XXXXXX
in this Agreement, PANAMCO agrees to provide the following to XXXXXXX-XXXXXX:
A. Unpaid Base Salary Through Date of Termination. PANAMCO promises
to pay XXXXXXX-XXXXXX his regular base salary described in the Employment
Agreement up to and including the effective date of his termination, October
5, 2000. Said payment shall be made according to PANAMCO's normal payroll
practices.
B. Lump Sum Severance Payment. Pursuant to Section 5.4 of the
Employment Agreement, PANAMCO promises to pay XXXXXXX-XXXXXX the xxxxx amount
of Three Million, Six Hundred Eighty-One Thousand, Two Hundred Fifty Dollars
($3,681,250.00), less applicable tax deductions. Said amount represents the
equivalent of two and one-half (2.5) multiplied by XXXXXXX-XXXXX'x base
salary, plus two and one-half (2.5) multiplied by XXXXXXX-XXXXX'x target bonus
for year 2000. Such amount shall be paid in a single lump sum within thirty
(30) days after XXXXXXX-XXXXXX'x Termination Date.
C. Prorated Incentive Compensation Bonus for Bonus Period During
which the Termination Occurred. Pursuant to Section 5.4 of the Employment
Agreement, PANAMCO promises to pay XXXXXXX-XXXXXX a pro rata portion (from the
beginning of the Plan Year up to the Termination Date) of XXXXXXX-XXXXXX'x
Incentive Compensation for the period during which the Termination Date
occurs. The amount of said payment shall be determined in accordance with the
terms of the Annual Incentive Plan and said payment is expected to be made on
or before March 15, 2001, according to PANAMCO's customary procedures for
paying bonuses under the Annual Incentive Plan.
D. Benefit Programs. PANAMCO promises to continue to sponsor for
XXXXXXX-XXXXX the individual benefit programs described at Section 4.2 of the
Employment Agreement for the earlier of: (1) eighteen (18) months following
XXXXXXX-XXXXXX'x Termination Date; or (2) the date XXXXXXX-XXXXX obtains a
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similar individual benefit through other employment. In the event that PANAMCO
is unable to provide XXXXXXX-XXXXXX with any individual benefit described at
Section 4.2 of the Employment Agreement by reason of the termination of
XXXXXXX-XXXXXX'x employment, PANAMCO promises to pay XXXXXXX-XXXXXX an amount
of money equivalent to PANAMCO's pro rata cost of providing the benefit to
XXXXXXX-XXXXXX. PANAMCO acknowledges and agrees that XXXXXXX-XXXXXX is
currently receiving and is entitled to continue to receive life and health
insurance pursuant to the terms of the Panamco Mexican Pension Plan, and
nothing in this Agreement shall be construed to waive XXXXXXX-XXXXXX'x
entitlement to said life and health insurance benefits.
E. Relocation Expenses. PANAMCO promises to reimburse XXXXXXX-XXXXXX
for his reasonable moving or related expenses described
in Section 1.3 of the Employment Agreement if he relocates back to his home
country within one (1) year following the Termination Date.
F. Vested Stock Options and Extension of Exercise Date.
XXXXXXX-XXXXXX will be vested on the Termination Date in any stock options
granted to him during the term of his Employment with PANAMCO. XXXXXXX-XXXXXX
agrees that, as of the Termination Date, he has been granted options to
purchase shares of PANAMCO common stock under PANAMCO's Equity Incentive Plan,
as amended. A schedule of the options granted to XXXXXXX-XXXXXX is attached
hereto as Appendix A and incorporated herein by reference. The normal
limitations period during which XXXXXXX-XXXXXX may exercise his stock options
is hereby extended up to and including the date that is two (2) years from
XXXXXXX-XXXXXX'x Termination Date.
G. Reasonable Business Expenses. PANAMCO promises to reimburse
XXXXXXX-XXXXXX for reasonable expenses paid or incurred by him in the course
of and pursuant to the business of PANAMCO. Such reimbursement shall occur as
soon as practicable after XXXXXXX-XXXXXX'X Termination Date.
H. Accrued But Unused Vacation Day Compensation. PANAMCO promises to
pay XXXXXXX-XXXXXX the gross amount of Thirty-Eight Thousand, Two Hundred,
Nineteen Dollars ($38,219.00), less applicable tax deductions. The payment
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under this paragraph is intended to compensate XXXXXXX-XXXXXX for any accrued
but unused vacation days as of the Termination Date.
XXXXXXX-XXXXXX understands and acknowledges that he would not
receive some of the benefits provided pursuant to this Paragraph 2 except for
his execution of this Agreement, his waiver of claims against PANAMCO, and the
fulfillment of the promises contained herein.
3. Mutual Release of Claims. For the purposes of this Paragraph 3, "PANAMCO"
shall include PANAMCO LLC, Panamerican Beverages, Inc., and any parent
companies, subsidiaries, related or affiliated entities, and their respective
owners, directors, officers, agents, and employees. XXXXXXX-XXXXXX knowingly
and voluntarily waives any and all known and unknown rights and claims that he
has or may have against PANAMCO as of the date XXXXXXX-XXXXXX signs this
Agreement, including but not limited to any claim(s) under:
o The National Labor Relations Act;
o Title VII of the Civil Rights Act of 1964;
o Sections 1981 through 1988 of Title 42 of the United States Code;
o The Employee Retirement Income Security Act of 1974;
o The Immigration Reform and Control Act of 1986;
o The Americans with Disabilities Act of 1990;
o The Fair Labor Standards Act;
o The Age Discrimination in Employment Act of 1967;
o The Older Workers Benefit Protection Act;
o The Equal Pay Act of 1963;
o The Occupational Safety and Health Act;
o The Family and Medical Leave Act of 1993;
o Any other federal, state or local civil or human rights law or
any other federal, state or local law, regulation or ordinance;
or
o Any public policy, contract, or common law claims, including
any tort claims (e.g., negligent or intentional infliction
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of emotional distress, defamation, assault, battery, false
imprisonment, wrongful termination, etc.) whether based on
common law or otherwise.
PANAMCO hereby knowingly and voluntarily waives any and all known
and unknown rights and claims that it has or may have against XXXXXXX-XXXXXX
(including his heirs, assigns, agents, and representatives) as of the date
PANAMCO signs this Agreement, including but not limited to any claim(s) under
any federal, state or local law regulation or ordinance or any public policy,
contract, or common law claims, including any tort claims.
This waiver also bars any claim or demand for costs, fees, or other
expenses including attorney's fees incurred in connection with any of the
above-referenced claims. The listing of claims waived in this Section 3 is
intended to be illustrative rather than exhaustive. Thus, XXXXXXX-XXXXXX and
PANAMCO acknowledge and agree that this Agreement constitutes a full and final
bar to any and all claims of any type that they now have against each other.
4. Indemnification. PANAMCO agrees to continue to indemnify, defend,
and hold XXXXXXX-XXXXXX harmless for any claims asserted against
XXXXXXX-XXXXXX made by third parties regarding acts or omissions made by
XXXXXXX-XXXXXX while performing his duties for PANAMCO, but only to the extent
provided under the terms of PANAMCO's Directors and Officers Liability
Insurance Policy and any applicable provisions of PANAMCO's Articles of
Incorporation and Bylaws. The parties acknowledge that XXXXXXX-XXXXXX is a
named insured under PANAMCO's Directors and Officers Liability Insurance
Policy by virtue of his former status as a director and officer of Panamerican
Beverages, Inc.
5. Cooperation. XXXXXXX-XXXXXX agrees to cooperate with PANAMCO in
effecting a smooth transition of the management of PANAMCO with respect to the
duties and responsibilities which XXXXXXX-XXXXXX performed for PANAMCO.
XXXXXXX-XXXXXX agrees to make himself reasonably available in connection with
any request by PANAMCO regarding prior business arrangements or pending
litigation or litigation which may arise in the future concerning matters of
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which were within the purview of XXXXXXX-XXXXXX'x management responsibilities.
6. No Lawsuits. XXXXXXX-XXXXXX and PANAMCO promise not to institute
or have instituted on their behalf any lawsuit against each other based upon
any claim they are waiving in Section 3 above. This Agreement is not intended
to limit XXXXXXX-XXXXXX'x or PANAMCO's right of access to any government
agency, nor XXXXXXX-XXXXXX'x or PANAMCO's right to participate in any
investigation by any government agency. However, XXXXXXX-XXXXXX and PANAMCO
agree that, with respect to the claims they are waiving herein, they are
waiving not only their right to recover money or other relief in any action
that they might institute, but also that they are waiving their right to
recover money or other relief in any action that might be brought on their
behalf by any other person or entity, including but not limited to the United
States Equal Employment Opportunity Commission or any other federal, state or
local governmental agency or department.
7. Restrictive Covenants. XXXXXXX-XXXXXX hereby adopts and reaffirms
the restrictive covenants described at Section 6 of the Employment Agreement,
including Subparagraphs 6.1 through 6.9 thereof, and agrees that those
covenants shall survive the termination of the Employment Agreement.
Additionally, XXXXXXX-XXXXXX agrees that the "Non-competition" covenant in
Section 6.1 of the Employment Agreement shall be enforceable against him under
the terms set forth in Section 6.1, but without regard to whether
XXXXXXX-XXXXXX was terminated "without Cause" and without regard to whether
XXXXXXX-XXXXXX terminated his employment "for Good Reason" as described in the
first sentence of Section 6.1 of the Employment Agreement.
8. Consequences of Breach. XXXXXXX-XXXXXX and PANAMCO agree that if they break
any of the promises they have made in this Agreement, the prevailing party
will be entitled to recover its reasonable attorney's fees and costs in any
litigation or arbitration initiated to enforce this Agreement.
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9. Adequate Consideration. XXXXXXX-XXXXXX agrees that payment to him
of the money and benefits pursuant to Section 2 of this Agreement constitutes
adequate and ample consideration for the rights and claims he is waiving under
this Agreement and for the obligations imposed upon him by virtue of this
Agreement.
10. Non-Admission. XXXXXXX-XXXXXX agrees that neither this Agreement
nor the furnishing of the consideration for XXXXXXX-XXXXXX'x waiver of claims
shall be deemed or construed at anytime for any purpose as an admission by
PANAMCO of any liability or unlawful conduct of any kind.
11. Governing Law and Interpretation. This Severance Agreement shall
be governed by and construed in accordance with the laws of the State of
Florida. Its language shall be construed as whole, according to its fair
meaning, and not strictly for or against either party.
12. Severability. Should any provision of this Agreement be declared
illegal or unenforceable by any court of competent jurisdiction and cannot be
modified to be enforceable, such provision shall immediately become null and
void, leaving the remainder of this in full force and effect. However, if any
portion of the waiver and general release language is determined to be
unenforceable for any reason due to actions taken by XXXXXXX-XXXXXX or due to
a challenge to this Agreement by XXXXXXX-XXXXXX, XXXXXXX-XXXXXX shall return
the consideration paid to him by PANAMCO pursuant to this Agreement.
13. Entire Agreement; Amendment. Except as expressly set forth
herein, this Agreement sets forth the entire agreement between PANAMCO and
XXXXXXX-XXXXXX and shall supersede any and all prior agreements or
understandings between the parties, except as otherwise stated herein. This
Agreement may not be amended except by a written agreement signed by the
parties.
14. Headings. Section headings are used herein for convenience of
reference only and shall not affect the meaning of any provision of this
Agreement.
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15. Disputes. In the event of a dispute as to the interpretation,
application or violation of this Agreement, it is understood and
agreed that such dispute shall be submitted to final and binding arbitration
in Miami-Dade County, Florida, pursuant to the rules of the American
Arbitration Association.
16. Time to Consider Signing Agreement/Right to Revoke.
XXXXXXX-XXXXXX acknowledges that he has been given at least twenty-one (21)
days after receipt of this Agreement to decide whether to sign this Agreement.
XXXXXXX-XXXXXX understands that he may revoke this Agreement within seven (7)
days following the day he executes this Agreement. Any revocation within that
period must be submitted, in writing, to Xxxxxx X. Rostov, Esq., c/o Baker &
XxXxxxxx, 0000 Xxxxxxxx Xxxxxx, Xxx. 0000, Xxxxx Xxxxxxx 00000, and state, "I
hereby revoke the Severance Agreement and General Release." The revocation
must be personally delivered to Mr. Rostov within seven (7) days of execution
of this Agreement.
17. Encouragement to Consult Attorney. PANAMCO hereby encourages
XXXXXXX-XXXXXX to consult his attorney before signing this Agreement.
XXXXXXX-XXXXXX acknowledges that he has consulted his attorney before signing
this Agreement.
THE PARTIES HAVE READ, UNDERSTOOD AND FULLY CONSIDERED THE SEVERANCE
AGREEMENT AND GENERAL RELEASE AND ARE MUTUALLY DESIROUS OF ENTERING INTO SUCH
SEVERANCE AGREEMENT AND GENERAL RELEASE. HAVING ELECTED TO EXECUTE THIS
SEVERANCE AGREEMENT AND GENERAL RELEASE, TO FULFILL THE PROMISES SET FORTH
HEREIN, AND TO RECEIVE THEREBY THE BENEFITS SET FORTH IN PARAGRAPH 2 ABOVE,
XXXXXXX-XXXXXX FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, ENTERS INTO
THIS SEVERANCE AGREEMENT AND GENERAL RELEASE INTENDING TO WAIVE, SETTLE AND
RELEASE ALL CLAIMS HE HAS OR MIGHT HAVE AGAINST PANAMCO.
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IN WITNESS WHEREOF, the parties have executed this Severance
Agreement and General Release as of the date set forth below.
PANAMCO LLC XXXXXXXXX XXXXXXX-XXXXXX
By: /s/ Xxxxxx Xxxxxxxxx Artigas /s/ Xxxxxxxxx Xxxxxxx-Xxxxxx
--------------------------------- -------------------------------
Xxxxxx Xxxxxxxxx Artigas XXXXXXXXX XXXXXXX-XXXXXX
Vice President
Date: Date:
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XXXXX XX XXXXXXX XXXXX XX XXXXXXX
XXXXXX XX XXXXX-XXXX XXXXXX OF MIAMI-DADE
The foregoing instrument was executed The foregoing instrument executed
before me this __ day of ____, 2000, before me this __ day of __, 2000,
by Xxxxxx Xxxxxxxxx Artigas, in his by Xxxxxxxxx Xxxxxxx-Xxxxxx who is
capacity as Vice President of personally known by me [or who has
PANAMCO LLC, who is personally known produced ___________________ as
by me and who did not take an oath. identification] and who took an oath.
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Notary Public Notary Public
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Type or Print Name of Notary Type or Print Name of Notary
My Commission Expires: My Commission Expires:
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