EXHIBIT 10.44
EMPLOYMENT TERMINATION
AGREEMENT AND GENERAL RELEASE
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WHEREAS XXXXX XXXXXXXX XXXXXXX ("XX. XXXXXXXX") has been employed by
PANAMCO LLC, a limited liability company organized under the laws of Delaware
and d/b/a PANAMERICAN BEVERAGES COMPANY in Florida (hereinafter the "COMPANY")
as Chief Financial Officer, and because the parties hereto desire to set forth
their agreements with respect to the termination of XX. XXXXXXXX'x employment
with the COMPANY pursuant to Section 5.4 of XX. XXXXXXXX'x Employment
Agreement entered into on December 14, 2002, effective as of February 15, 2002
("Employment Agreement"), XX. XXXXXXXX and the COMPANY agree as follows:
1. XX. XXXXXXXX'x employment with the COMPANY is hereby terminated
on October 7, 2002 pursuant to Section 5.4 of the Employment Agreement.
2. In consideration of the promises of the COMPANY set forth in
paragraph 3 below, XX. XXXXXXXX and his heirs, executors and administrators
intending to be legally bound, hereby permanently and irrevocably terminates
his employment with the COMPANY and releases and discharges the COMPANY and
its parents, subsidiaries, affiliates, and its and their officers, directors,
shareholders, employees, agents, successors, assigns, heirs, executors, and
administrators, and any individual or organization related to the COMPANY and
against whom or which XX. XXXXXXXX could claim (hereinafter referred to
collectively as the "COMPANY") from any and all causes of actions, suits,
debts, claims and demands whatsoever, which he had, has, or may have against
the COMPANY up until the date of his execution of this Agreement.
Particularly, but without limitation, XX. XXXXXXXX so releases any claims
relating in any way to his employment or the termination of his employment
relationship with the COMPANY, including any claims under any U.S. or Mexican
federal, state or local laws, including the Florida Civil Rights Act of 1992,
the Florida Private Whistleblower Act, the Miami-Dade County Equal Opportunity
Ordinance, Title VII of the Civil Rights Act of 1964, as amended, the
Americans With Disabilities Act, the Age Discrimination in Employment Act, as
amended, the Family and Medical Leave Act, or any other labor or employment
laws, any common law claims, such as actions in tort and contract, and all
claims for counsel fees and costs.
3. In full consideration of XX. XXXXXXXX'x execution of this
Employment Termination Agreement and General Release, and his agreement to be
legally bound by its terms, the COMPANY will, on or after the eighth day after
XX. XXXXXXXX'x execution of this Agreement, provide XX. XXXXXXXX with the
following consideration, to which he would not otherwise be entitled:
A. Unpaid Base Salary Through Date of Termination. PANAMCO promises to
pay XX. XXXXXXXX his regular base salary described in the Employment
Agreement, as it shall have been increased, up to and including his
Termination Date. Said payment shall be made according to PANAMCO's normal
payroll practices on or prior to October 15, 2002.
B. Lump Sum Severance Payment. PANAMCO promises to pay XX. XXXXXXXX the
xxxxx amount of Forty Two Thousand Four Hundred and Ninety Four Dollars and
Sixty Eight Cents ($42,494.68), less any tax withholding required by
applicable law or regulation which is the equivalent to one month of Base
Salary in accordance with Section 5.4(iii)of the Employment Agreement
notwithstanding the full year of service has not been completed, plus unused
vacation (ten days) in accordance with Section 4.4 of the Employment Agreement
Agreement plus a pro rata automobile allowance in accordance with Section 3.3
of the Employment Agreement. Such amount shall be paid in a single lump sum
within 5 business days after the 7 day revocation period described in Section
15 herein expires.
C. Prorated Incentive Compensation Bonus for Bonus Period During which
the Termination Occurred. PANAMCO promises to pay XX. XXXXXXXX the gross
amount of One Hundred and Twenty Six Thousand Six Hundred and Sixty Six
Dollars and Sixty Seven Cents ($126,666.67), less any tax withholding required
by applicable law or regulation which is the equivalent to the amounts that
would otherwise be due to him as the Chief Financial Officer under
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Panamerican Beverages, Inc.'s 2002 Annual Incentive Plan (the "Incentive
Plan") if he had remained as Chief Financial Officer through the end of the
year, prorated based on the number of days of participation under the
Incentive Plan. Both parties agree that said payment shall be determined in
the manner and upon the terms and conditions set forth in the Incentive Plan
as if the Target Award of 50% of XX. XXXXXXXX'x annual Base Salary has been
met multiplied by 1x. Such amount shall be paid in a single lump sum within 5
business days after the 7 day revocation period described in Section 15 herein
expires.
D. Relocation to home country. Upon XX. XXXXXXXX'x presentation of
appropriate documentation, reimburse XX. XXXXXXXX for reasonable moving and
related expenses incurred as a result of XX. XXXXXXXX'x relocation back to his
home country within 60 days after the execution of this Agreement in an amount
not to exceed $25,000.00.
E. Reasonable Business Expense. In accordance with the provisions of
Section 4.1 of the Employment Agreement, PANAMCO promises to reimburse XX.
XXXXXXXX for reasonable expenses paid or incurred by him in the course of and
pursuant to the business of PANAMCO up to the Termination Date. Such
reimbursement shall occur as soon as practicable after XX. XXXXXXXX'
Termination Date.
F. Accrued But Unused Vacation Day Compensation. Included in the gross
amount in paragraph 2 B. is the equivalent in cash of any unused vacation days
available at the Termination Date. The payment under this paragraph is
intended to compensate XX. XXXXXXXX for any accrued but unused vacation days
as of the Termination Date, as provided in Section 4.4 of the Employment
Agreement.
G. Benefit Programs. PANAMCO promises to continue to sponsor for XX.
XXXXXXXX the individual benefit programs described at Section 4.2 of the
Employment Agreement for the earlier of (1) twelve (12) months following XX.
XXXXXXXX' Termination Date, or (2) the
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date XX. XXXXXXXX obtains a similar individual benefit through other
employment. In the event that PANAMCO is unable to provide XX. XXXXXXXX with
any individual benefit described at Section 4.2 of the Employment Agreement by
reason of the termination of XX. XXXXXXXX'x employment, PANAMCO promises to
pay XX. XXXXXXXX an amount of money equivalent to PANAMCO's cost of providing
the benefit to XX. XXXXXXXX. PANAMCO's good faith determination of that cost
shall be binding and conclusive on XX. XXXXXXXX.
Except as set forth in this Agreement, it is expressly agreed and
understood that the COMPANY does not have, and will not have, any obligation
to provide XX. XXXXXXXX at any time in the future with any payments, benefits
or considerations other than those recited in this paragraph.
XX. XXXXXXXX understands and acknowledges that he would not receive some
of the benefits provided pursuant to this Section 3 except for his execution
of this Agreement, his waiver of claims against PANAMCO, and the fulfillment
of the promises contained herein.
The parties acknowledge that the performance of the promises of each are
expressly contingent upon the fulfillment and satisfaction of the obligations
of the other party as set forth in this Agreement.
4. XX. XXXXXXXX hereby agrees and recognizes that his employment
relationship with the COMPANY has been permanently and irrevocably severed and
that the COMPANY has no obligation to re-employ him in the future and that his
H-1 visa will no longer be effective as of the Termination Date. COMPANY has
the obligation to report the foregoing to the Immigration and Naturalization
Service ("INS") and XX. XXXXXXXX has the obligation to change his immigration
status as of the Termination Date.
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5. XX. XXXXXXXX agrees and acknowledges that this agreement is not
and shall not be construed to be an admission of any violation of any federal,
state or local statute or regulation, or of any duty owed by the COMPANY.
6. XX. XXXXXXXX agrees (on reasonable request by PANAMCO, at
PANAMCO's sole expense, and subject to his other commitments and obligations)
to cooperate with PANAMCO in effecting a smooth transition of the management
of PANAMCO with respect to the duties and responsibilities which XX. XXXXXXXX
performed for PANAMCO as its Chief Financial Officer. XX. XXXXXXXX agrees to
make himself reasonably available (on reasonable request by PANAMCO, at
PANAMCO's sole expense, and subject to his other commitments and obligations)
regarding prior business arrangements, and regarding pending litigation or
litigation which may arise in the future, concerning matters of which MR. XX.
XXXXXXXX has personal knowledge or which were within MR. XX. XXXXXXXX'x
management responsibilities.
7. Each of XXXXXXXX and PANAMCO and its officers shall not issue any
communication or statement, written or otherwise, that disparages, criticizes
or otherwise reflects adversely upon the other, except if testifying
truthfully in conjunction with legal proceedings. In the event that either
XXXXXXXX or PANAMCO or its officers is compelled by subpoena process to
testify, he or it will provide, to the extent possible, written notice to the
other party in time to permit such party to seek an appropriate protective
order or such other relief as may be necessary to enforce his or its rights
under this Agreement.
8. XX. XXXXXXXX acknowledges that he remains subject to Articles 6,
7, 8, 9, and 10 of the Employment Agreement.
9. Any dispute or controversy arising under or in connection with
this Employment Termination Agreement and General Release shall be settled
exclusively by
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arbitration in Miami-Dade County, Florida, in accordance with
the Rules of the American Arbitration Association then in effect (except to
the extent that the procedures outlined below differ from such rules). Within
thirty (30) days after written notice by either party has been given that a
dispute exists and that arbitration is required, each party must select an
arbitrator and those two arbitrators shall promptly, but in no event later
than thirty (30) days after their selection, select a third arbitrator. The
parties agree to act as expeditiously as possible to select arbitrators and
conclude the dispute. The selected arbitrators must render their decision in
writing. The cost and expenses of the arbitration and of enforcement of any
award in any court shall be borne equally by both parties. If advances are
required, each party will advance one-half of the estimated fees and expenses
of the arbitrators. Judgment may be entered on the arbitrators award in any
court having jurisdiction. Although arbitration is contemplated to resolve
disputes hereunder, either party may proceed to court to obtain an injunction
to protect its rights hereunder, the parties agreeing that either could suffer
irreparable harm by reason of any breach of this Agreement. Pursuit of an
injunction shall not impair arbitration on all remaining issues.
10. This Agreement shall be governed by and construed in accordance
with the laws of the State of Florida.
11. This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof and, upon its
effectiveness, shall supersede all prior agreements, understandings and
arrangements, both oral and written, between XX. XXXXXXXX and the COMPANY with
respect to such subject matter, including but not limited to the Employment
Agreement. However, Articles 6, 7, 8, and 9 of the Employment Agreement remain
in full force and effect. This Agreement may not be modified in any way unless
by a written instrument signed by both the COMPANY and XX. XXXXXXXX.
12. XX. XXXXXXXX hereby certifies that he has read the terms of this
Employment Termination Agreement and General Release, that he has been advised
by the COMPANY to consult with an attorney of his own choice prior to
executing this Agreement, that he has had an opportunity to do so, and that he
understands this Agreement's terms and effects. XX. XXXXXXXX further certifies
that the COMPANY has not made any representations to MR.
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XXXXXXXX concerning this Employment Termination Agreement and General Release
other than those contained herein.
13. XX. XXXXXXXX acknowledges that he has been informed that he has
the right to consider this Employment Termination Agreement and General
Release for a period of at least 21 days prior to entering into this
Agreement. He also understands that he has the right to revoke this Agreement
for a period of 7 days following his execution of this Agreement by giving
written notice by facsimile or hand delivery to the COMPANY at 000 Xxxxxxxxx
Xxx, Xxxxxx Xxxxx, Xxxxx, Xxxxxxx 00000, Attention: Xxxxxx Xxxxxxxxx-Xxxxxxx,
General Counsel. If any provision of this Employment Termination Agreement and
General Release is deemed invalid, the remaining provisions shall not be
affected. IN WITNESS WHEREOF, and intending to be legally bound hereby, the
parties have executed the foregoing Employment Termination Agreement and
General Release this ____ day of ___________, 2002.
WITNESS:______________________ /s/ Xxxxx Xxxxxxxx Xxxxxxx
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XXXXX XXXXXXXX XXXXXXX
PANAMCO LLC d/b/a PANAMERICAN
BEVERAGES COMPANY
WITNESS:______________________ BY: /s/ Xxxxxx Xxxxxxxxx-Xxxxxxx
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NAME: XXXXXX XXXXXXXXX-XXXXXXX
VICE PRESIDENT AND SECRETARY
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