Exhibit 10.28
SEPARATION AGREEMENT AND GENERAL
RELEASE
Dear William Luraschi:
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 May 31, 2008 (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, other than any
Excluded Materials (as defined below); 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 “Excluded
Materials” are (i) 2 laptop computers — an IBM T43
and an IBM X60, and (ii) a Blackberry Pearl phone. Title to
the Excluded Materials will pass to you upon satisfaction of the
following conditions: (i) satisfaction of the conditions
listed in Section 3 (i), (ii) and (iii) below; and
(ii) deletion of all confidential information of the Company
from the Excluded Materials by the Company.
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 June 15,
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 Paul Hanrahan; and
(iii) your return of an executed copy of this Agreement to the
Company by May 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$514,500) 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 41.6% of your 2008 annual target bonus, less
applicable taxes and deductions; provided that all performance
conditions and other terms and conditions applicable to such bonus
and the payment thereof must be met prior to payment. Such payment,
if any, will be made to you in calendar year 2009 on or prior to
March 15, 2009;
(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
