EXHIBIT 10.8
September 25, 2001
Xxxx X. Xxxxxxxx
0000 X. Xxxxx Xxxxxxxxx, #0000
Xx. Xxxxxxxxxx, XX 00000
SEPARATION AGREEMENT AND RELEASE OF CLAIMS
Dear Xxxx:
This letter will serve as confirmation that your employment with
America Online Latin America, Inc. (the "Company") will end on the earlier of
(i) June 25, 2002 and (ii) the date on which you accept employment with AOL Time
Warner Inc., the Xxxxxxxx Group of Companies, or any of their respective
subsidiaries or other affiliates (the "Separation Date"); provided, that if you
accept employment as described in clause (ii) prior to March 25, 2002, then the
Separation Date shall be March 25, 2002; provided further, that if you provide
the Company with at least 30 days' written notice (the "Separation Notice"), to
be effective at any time after January 15, 2002, to the effect that you elect to
terminate your rights and obligations under Sections 1 and 2 of this Agreement,
then such rights and obligations will terminate on the date you so specify, and
such date shall be the "Separation Date" for purposes of this Agreement. 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. Subject to the other terms and conditions of this Agreement, your
employment with the Company will cease at the close of business on the
Separation Date. Effective September 25, 2001, you will cease to
perform your regular duties for the Company; provided, that you shall
perform duties for the Company hereafter from time to time if and as
reasonably requested by the Company until the close of business on the
Separation Date, subject to your availability.. The parties acknowledge
and agree that you will render your services non-exclusively through
your Separation Date. You shall be free to dispose of such portion of
your entire time, energy and skill as you are not obliged to devote to
the services to be provided hereunder, in such manner and as you see
fit, and, subject to the terms of that certain Confidentiality,
Non-competition and Proprietary Rights Agreement entered into by and
between the parties, dated the date hereof (the "NDA"), to such
persons, firms or other entities as you deem advisable. You shall be
under no obligation to seek other employment (including
self-employment) and, except as otherwise provided in clause (ii) of
the first paragraph of this Agreement, there shall be no offset against
any amounts due to you under this Agreement on account of any
remuneration attributable to any subsequent employment (including
self-employment) that you may obtain. The Company will reimburse you
for the reasonable out-of-pocket costs incurred by you in performing
duties pursuant to this Section 1, in accordance with the Company's
then-standard policy on reimbursement of costs. Effective September 25,
2001, you shall no longer have the authority to bind the Company, and
you shall not hold yourself out to any third party as having that
authority.
1
2. You will continue to be paid your salary and be provided with the
Company's standard employee benefit package (including health benefits
(including, but not limited to, dental and vision coverage)) and plans,
subject to the terms of such packages and plans, life insurance,
participation in the Company's 401(k) plan, payment of reasonable
cellular phone charges and payment of your Company calling card xxxx
(which you agree will be used exclusively for Company business
purposes)) through the Separation Date. The last salary payment,
together with payment for accrued and unused vacation through December
31, 2001, will be made on or before the next regularly scheduled pay
date following the Separation Date; provided, that if the Separation
Date is triggered by the provision of the Separation Notice, then the
last salary payment shall include the aggregate amount of salary, if
any, that would otherwise be payable from the Separation Date through
June 25, 2002 or March 25, 2002, as applicable; provided further, that
if you accept Qualifying Employment with AOL Time Warner Inc., the
Xxxxxxxx Group of Companies, or any of their respective subsidiaries or
other affiliates after the provision of the Separation Notice but prior
to June 25, 2002, you shall refund to the Company the amount you
received with respect to the period from the (a) later of March 25,
2002 and the date on which you begin such Qualifying Employment through
(b) June 25, 2002, if any. For purposes of this paragraph 2,
"Qualifying Employment" shall mean engagement as an employee or an
independent contractor, the compensation for which includes stock
options or a package of benefits that contains substantially all of the
elements generally made available to employees of the applicable
entity. In addition, you will be paid, on or prior to the next
regularly scheduled pay date following January 2, 2002, a lump-sum
amount of $58,672, in full satisfaction of the bonus for which you are
eligible for calendar year 2001 (note that this amount is 92% of the
maximum bonus amount for which you are eligible for calendar year
2001). You will not be eligible for any bonus or accrued vacation pay
for any period following December 31, 2001. Applicable payroll
deductions and appropriate tax withholdings will be made from all
salary and other payments made pursuant to this paragraph.
3. As provided above, your health benefits will continue through the
Separation Date. With respect to the Consolidated Omnibus Budget
Reconciliation Act ("COBRA"), your COBRA period will begin on the day
following the Separation Date, and you will receive separate
information regarding your option to continue, at your expense under
COBRA, health benefits after that date. All other benefits will
terminate on the Separation Date.
4. Prior to your departure from work on September 25, 2001, you must
return to the Company all the Company property in your possession,
including, but not limited to, keys, pagers, telephones 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 (such information, "Company Information");
provided, that (a) you may retain your lap-top computer, printer,
docking station, keyboard and cellular telephone following September
25, 2001 and following the Separation Date, but you may retain and use
only such of the Company Information as is reasonably required for you
to perform continuing duties, if any, as contemplated by Section 1
above, and upon completion of such projects you shall return such
Company Information to the Company, and (b) you may retain and use,
until the Separation Date, the telephone calling card for Company
business purposes (and you agree to return the
2
calling card promptly following the Separation Date). After the
Separation Date, (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. You
will also have the right to be provided, at no cost to you, with all
computer software upgrades generally made available to Company
employees through the Separation Date.
5. In addition, the services of Drake Beam Xxxxx, a professional
outplacement and counseling firm, will be provided to you, at the
Company's sole expense, through March 25, 2002, to assist you in
securing other employment.
6. The payments and other benefits set forth in this Agreement are being
offered solely in consideration for your release of claims, as set
forth in Paragraph 7, and your execution and delivery of the NDA, and
you acknowledge that you are not otherwise entitled to those payments
and benefits. Furthermore, the provision to you of such payments and
benefits is conditioned on your continued compliance with the terms of
this Agreement and the NDA, and you shall be entitled to such payments
and benefits, and to continued employment through the Separation Date,
so long as you comply in all material respects with the terms of, and
your obligations under, this Agreement and the NDA. The payments and
benefits 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), and their respective predecessors, subsidiaries,
successors, 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 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
3
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 (a) workers' compensation
benefits, (b) your vested rights, if any, in the Company's 401(k) plan,
(c) your rights to exercise any and all Company stock options held by
you that 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, (d) the breach of, or your rights to
enforce the terms of, this Agreement; (e) any vested employee benefits
under any Company benefit plan, each of which shall be governed by the
terms of the respective plan, including but not limited to the
Company's 401(k) plan; (f) your right to receive group health insurance
continuation coverage under COBRA; (g) any outstanding out-of-pocket
expenses incurred prior to Separation Date in accordance with the
Company's policies; and/or (h) any coverage pursuant to contracts of
insurance for claims related to errors and omissions an/or any and all
other claims relating to your actions or omissions in your capacity as
an employee or officer of the Company and/or any of its affiliates.
With respect to subparagraph (h) above, the Company shall maintain such
insurance for you as for any other similarly situated employee still
employed by the Company, as relates to your activities as an employee
of the Company through your Separation Date, but only if and to the
extent the Company maintains such insurance for employees still
employed by the Company.
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 this Agreement will be filed by the Company with the
United States Securities and Exchange Commission (the "SEC").
11. You agree not to make any untruthful remarks or statements about the
Releasees and their respective officers, directors, employees or
agents. Neither the Company's CEO nor its COO shall make, and no
Company press release or filing by the Company with the SEC shall
contain, any untruthful remarks or statements about you.
4
12. You agree that in the event you breach in any material respect any of
your obligations hereunder or under the NDA, your salary and benefits
will terminate immediately, and the Company will have the rights to
pursue further damages, at law or in equity, as provided by law or
equity.
13. Notices given or required under this Agreement or the NDA shall be
delivered to the addresses indicated below by hand, through an express
mail service, or by certified or first-class mail, postage prepaid:
For Xxxx X. Xxxxxxxx:
0000 X. Xxxxx Xxxxxxxxx, #0000
Xx. Xxxxxxxxxx, XX 00000
With a copy (not constituting notice) to:
Xxxxxx Xxx Xxxx, Esq.
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxxxxx Xxxxxx, XX
Xxxxxxxxxx, XX 00000
For the Company:
America Online Latin America, Inc.
0000 X. Xxxxxx Xxx., xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attn.: President and CEO
With a copy (not constituting notice) to:
America Online Latin America, Inc.
0000 X. Xxxxxxx Xxx., Xxxxx 000
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Attn: General Counsel
14. 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.
15. Each and every provision of this Agreement shall be construed as though
the parties participated equally in the drafting of the same and
therefore the document shall not be construed against either party as
the drafting party.
5
16. This Agreement shall be fully binding upon any successors and assigns
of the Company and will inure to the benefit of and be enforceable by
you against any such successor(s) and/or assign(s).
17. No change or modification of this Agreement shall be valid unless the
same is in writing and signed by you and a duly authorized officer of
the Company. No waiver of any of the provisions of this Agreement shall
be valid unless the same is in writing and signed by the party against
whom it is sought to be enforced.
18. This document, together with the NDA, constitute my entire agreement
with the Company with respect to its subject matter, superseding any
prior negotiations and agreements.
19. This Agreement and the NDA may be executed in any number of
counterparts and by different parties hereto in separate counterparts
(including by facsimile), with the same effect as if all parties had
signed the same document, as applicable. All such counterparts shall be
deemed an original, shall be construed together, and shall constitute
one and the same instrument.
20. The person signing this Agreement on behalf of the Company shall have
due authority to bind the Company.
21. 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.
Sincerely,
/s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------------
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
certain 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/ Xxxx X. Xxxxxxxx
------------------------------ September 25, 2001
Xxxx X. Xxxxxxxx
6
