Exhibit 10.29
SEPARATION AGREEMENT AND
GENERAL RELEASE
Dear Jay Kloosterboer:
This document, upon your signature, will
constitute the Agreement between you and The AES Corporation
(together with its affiliates and related entities, the
“Company”) on the terms of your separation from the
Company (the “Agreement”).
1.
Your employment is terminated
effective January 5, 2009 (the “Termination
Date”). You will be paid your earned compensation
through and including the Termination Date. You have received
or will receive by separate cover information regarding your rights
to continuation of your health insurance which will cease as of the
last day of the month in which your Termination Date occurs.
To the extent that you have such rights, nothing in this Agreement
will impair those rights.
2.
You have or will return to the
Company by the Termination Date: (i) all reports, files,
memoranda, records, software, laptops, computer equipment, cellular
phones, credit cards, cardkey passes, door and file keys, computer
access codes or disks and instructional manuals; and (ii) any
other physical or personal property that you received in connection
with your employment with the Company that you then have in your
possession and you shall not retain any copies, duplicates,
reproductions or excerpts thereof. The Company will reimburse
you in accordance with its existing policies for any legitimate
expenses you incurred on Company business prior to the Termination
Date. You must submit any expense reimbursement requests by
December 31, 2008.
3.
Subject to the terms of this
Agreement and in consideration for (i) your execution of this
Agreement; (ii) your satisfactory work performance through the
Termination Date as determined by Andres Gluski; and
(iii) your return of an executed copy of this Agreement to the
Company by December 15, 2008, the Company will provide you,
pursuant to the terms and provisions of The AES Corporation
Severance Plan, as amended (“Severance Plan”), with the
following (collectively, “Consideration”):
(a)
twelve (12) monthly salary
continuation benefits (based on your 2008 annualized base salary +
target bonus of USD$297,500) in equal monthly installments, each
less applicable taxes and deductions. The first of these
monthly payments shall begin with the next regular payroll period
occurring after the seventh business day following your Termination
Date, and the remaining payment shall be made monthly in accordance
with the Company’s established payroll practices;
(b)
a prorated bonus for your work in
2008 equal to $300,000, less applicable taxes and deductions, to be
paid to you in the next payroll run following your Termination
Date;
(c)
outplacement benefits to begin after
your Termination Date;
(d)
in addition, if you are already
participating in the medical/RX, dental and/or vision benefit plans
and should you elect to continue these benefits under COBRA, the
Company will pay the portion of the premium cost of such coverage
presently paid by the Company under the Company’s plan for a
twelve (12) period which period shall commence at the beginning of
the calendar month following the calendar month containing your
Termination Date; and
(e)
finally, to the extent applicable,
you will be entitled to the Excise Tax Reimbursement benefits
described in Appendix A of the Severance Plan.
Absent the entry of this Agreement you would not
be entitled to such Consideration.
Any stock options, restricted stock units and
performance units of The AES Corporation that have been previously
granted to you but that have not yet vested on or before your
Termination Date, will not vest following your Termination Date and
will therefore be forfeited in their entirety. Please also
see the relevant plan and notice documents for other important
provisions triggered by your termination.
4.
The intent of this section is to
secure your promise not to sue the Company, or anyone connected
with it, for any harm you may claim to have suffered in connection
with your employment or the termination of your employment, in
return for the benefits described in this Agreement.
Accordingly, in exchange for the Consideration, you hereby agree as
follows:
(a)
Except as otherwise provided in this
Section 4(a), you hereby release the Company and all of its
past, present and/or future related entities, including but not
limited to parents, divisions, affiliates, subsidiaries, officers,
directors, stockholders, trustees, employees, agents,
representatives, administrators, attorneys, insurers, fiduciaries,
predecessors, successors and assigns of the Company, in their
individual and/or representative capacities (hereinafter
collectively referred to as the “Released Parties”),
from any and all causes of action, suits, agreements, promises,
damages, disputes, controversies, contentions, differences,
judgments, claims and demands of any kind whatsoever
(“Claims”) which you or your heirs, executors,
administrators, successors and assigns ever had, now have or may
have against the Released Parties, whether known or unknown to you,
and whether asserted or unasserted, (i) by reason of your
employment and/or cessation of employment with the Company, or
(ii) otherwise involving facts which occurred on or prior to
the date that you sign this Agreement.
Such released Claims include, without
limitation, any and all Claims under Title VII of the Civil Rights
Act of 1964, the Civil Rights Act of 1871, the Civil Rights Act of
1991, the Fair Labor Standards Act, the Family and Medical Leave
Act of 1993, the Age Discrimination in Employment Act of 1967, as
amended by the Older Workers’ Benefit Protection Act of 1990,
the Americans With Disabilities Act, the Employee Retirement Income
Security Act of 1974 (including, without limitation, any claim for
severance pay), the Virginia Human Rights Law and any and all other
federal, state or local laws, statutes, rules and regulations
pertaining to employment (each as amended) including but not
limited to the laws of the United States and any other country to
the extent applicable; any and all Claims under state contract or
tort law; any and all Claims based on the design or administration
of any Company employee benefit plan or program or arising under
any Company policy, procedure, or employee benefit plan, including,
but not limited to, the Severance Plan; any and all Claims for
wages, commissions, bonuses, continued employment with the Company
in any position, and compensatory, punitive or liquidated damages;
and any and all Claims for attorneys’ fees and costs.
Notwithstanding the foregoing, nothing contained herein shall
interfere with or waive your right to enforce this Agreement in a
court of competent jurisdiction;
(b)
If you commence, continue, join in,
or in any other manner attempt to assert any Claim released herein
against any Released Party or otherwise breach the promises made in
this Agreement, you shall reimburse the Released Parties for all
attorneys’ fees incurred by the Released Parties in defending
against such a Claim
