EXHIBIT 10.69
KEY EMPLOYEE RETENTION, SEVERANCE AND NON-COMPETITION PLAN
Panamerican Beverages, Inc., a company organized under the laws of the
Republic of Panama (the "Parent Company") hereby adopts this Key Employee
Retention, Severance and Non-Competition Plan (the "Plan") on September 18,
2002 for the benefit of certain employees who are in a position to
contribute materially to the success of the Parent Company and its
subsidiaries, including, without limitation, Panamco, LLC (collectively,
the "Company").
1. Purpose. The Company believes that its ability to retain and
motivate key employees may be adversely affected if, as a means of
enhancing shareholder value, the Company considers or enters into a Change
of Control (as defined below) transaction. For this reason, the Company has
adopted the Plan with its principal purpose to: (i) assure that the Company
will have the continued dedication and objectivity of its key employees,
notwithstanding the possibility, threat or occurrence of a Change of
Control; and (ii) to provide its key employees with an incentive to
continue employment with the Company and to motivate its key employees to
maximize the value of the Company upon a Change of Control for the benefit
of its stockholders. The Plan is intended to be an "employee welfare
benefit plan" as that term is defined in Section 3(1) of ERISA.
2. Certain Defined Terms. Certain capitalized terms used in the Plan
have the meaning set forth in Section 9 of the Plan.
3. Benefits.
(a) Subject to Section 3(c), in the event that a Participant's
employment terminates as a result of Involuntary Termination at any time
during the Change of Control Window, then the Participant shall be entitled
to the following benefits:
(i) Cash Severance Payment. The Participant shall receive a cash
payment in an amount (the "Severance Amount") equal to the product of:
(A) the Participant's Annual Compensation; and (B) the Participant's
Severance Multiple. The Severance Amount shall be paid in equal
monthly installments over the period (measured in the number of years
and/or fractions thereof equal to the Participant's Severance
Multiple) immediately following such Involuntary Termination, less all
applicable withholding taxes. The Severance Amount shall not be taken
into account for purposes of determining benefits under any other
qualified or non-qualified plans of the Company.
(ii) Continued Employee Welfare Benefits. The Participant (and
any person entitled to claim by or through such Participant) shall
receive continued provision of the Company's standard group employee
insurance coverages (e.g., health, dental, disability and life), as
elected by the Participant and in effect immediately prior to the
Involuntary Termination, for a period (the "Company-Paid Coverage
Period") that commences upon the Involuntary Termination and
terminates upon the earlier of: (A) the expiration of the period
(measured in the number of years and/or fractions thereof equal to the
Participant's Severance Multiple) immediately following such
Involuntary Termination; or (B) the date that the Participant becomes
covered under another
employer's group health, dental, disability or life insurance plans
that provide the Participant with comparable benefits. For purposes of
Title X of the Consolidated Budget Reconciliation Act of 1985
("COBRA"), the date of the "qualifying event" for the Participant and
his dependents shall be the date upon which the Company-Paid Coverage
Period terminates.
(iii) Accelerated Vesting of Options and Restricted Stock. If
such Involuntary Termination occurs prior to the date of the Change of
Control, such Participant's outstanding stock options and restricted
stock granted under the Company's Equity Incentive Plan (the "EIP")
shall fully vest and, in the case of stock options, become exercisable
as of the date of Involuntary Termination.
(iv) Accrued Salary and Vacation. The Participant shall be paid
all salary and accrued vacation pay earned through the date of such
Participant's Involuntary Termination, less all applicable withholding
taxes. Such payment shall be made at the same time as the Severance
Amount.
(b) Upon a Change of Control, each Participant (i) who is then
employed by the Company or (ii) whose employment terminated prior to such
Change of Control as a result of an Involuntary Termination during the
Change of Control Window shall become entitled to receive, in lieu of any
payments that the Participant may be entitled to receive under the
Company's Annual Incentive Plan for the year in which the Change of Control
occurs, a lump-sum payment equal to the product of: (A) the Participant's
target bonus (using the base 1x multiple) for the year in which the Change
of Control occurs; and (B) the number of days from January 1 to the date of
the Change of Control divided by 365. Such payment shall be made within 30
days of the date of the Change of Control.
(c) No Participant shall be entitled to receive the benefits set forth
in Section 3(a) hereof unless he first executes a Release (substantially in
the form of Exhibit "A" hereto) in favor of the Company and others set
forth in Exhibit "A" relating to all claims or liabilities of any kind
relating to his employment with the Company or a subsidiary thereof and the
termination of such employment.
4. Nonqualifying Termination. In the event a Participant's employment
is terminated (a) for any reason during any period other than the Change of
Control Window, (b) during the Change of Control Window, by reason of his
voluntary resignation (and such resignation does not constitute an
Involuntary Termination), death or disability or (c) during the Change of
Control Window, by the Company for Cause, then such Participant shall not
be entitled to receive severance or other benefits under the Plan.
5. Acceleration under Equity Incentive Plan. Except as otherwise
provided in Section 3(a)(iii) hereof, each Participant's outstanding stock
options and restricted stock granted under the EIP shall vest and, in the
case of stock options, become exercisable, as provided by and subject to
the terms of the EIP.
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6. Limitations on Payments.
(a) Anything in this Plan to the contrary notwithstanding and except
as set forth below, the amounts payable to such Participant shall be
reduced (reducing first the Payment under Section 3(a)(i), second the
Payment under Section 3(b) and third the Payment under Section 3(a)(iii),
unless an alternative method or order of reduction is elected by such
Participant) to the maximum amount as will result in no portion of the
Payments being subject to such Excise Tax (the "Safe Harbor Cap"), but only
if the net after-tax amount that would be received by such Participant,
taking into account all applicable federal, state and local income taxes
and the Excise Tax, is greater than the net after-tax amount that would be
received by such Participant if Payments are not reduced to the Safe Harbor
Cap. For purposes of reducing the Payments to the Safe Harbor Cap, only
amounts payable to such Participant under the Plan (and no other Payments)
shall be reduced, unless consented to by such Participant.
(b) All determinations required to be made under this Section 6,
including whether and when a reduction to the Safe Harbor Cap is required,
the amount of such reduction and the assumptions to be utilized in arriving
at such determination, shall be made by the firm engaged as the Parent
Company's accountants immediately prior to the Change of Control (the
"Accounting Firm"). The Accounting Firm shall provide detailed supporting
calculations both to the Company and such Participant within 15 business
days of the receipt of notice from such Participant that there has been a
Payment or such earlier time as is requested by the Company. If the
Accounting Firm determines that a reduction to the Safe Harbor Cap is
required, then the Accounting Firm shall deliver to such Participant a
written opinion to such effect and to the effect that failure to report the
Excise Tax on such Participant's applicable federal income tax return will
not result in the imposition of a negligence or similar penalty. All fees
and expenses of the Accounting Firm shall be borne solely by the Company.
Any determination by the Accounting Firm shall be binding upon the Company
and such Participant. As a result of the uncertainty in the application of
Section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that all or a portion of the
reductions pursuant to Section 6(a) should not have been made (the
"Underpayment") or that Payments have been made to or for the benefit of a
Participant in excess of the limitations provided in Section 6(a) (an
"Excess Payment"), consistent with the calculations required to be made
hereunder. If it is otherwise determined by the Accounting Firm or a court
of competent jurisdiction that an Underpayment has occurred with respect to
a Participant, the Accounting Firm shall determine that amount of the
Underpayment that has occurred and any such Underpayment shall be promptly
paid by the Company to or for the benefit of such Participant, together
with interest on such amount at the applicable federal rate (as defined in
Section 1274(d) of the Code) from the date such amount would have been paid
to such Participant until the date of payment. If it is established
pursuant to a final determination of a court or an Internal Revenue Service
proceeding that has been finally and conclusively resolved, that an Excess
Payment has been made, such Excess Payment shall be deemed for all purposes
to be a loan to such Participant made on the date such Participant received
the Excess Payment and such Participant shall repay the Excess Payment to
the Company on demand, together with interest on the Excess Payment at the
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applicable federal rate (as defined in Section 1274(d) of the Code) from
the date of such Participant's receipt of such Excess Payment until the
date of such repayment.
7. Restrictive Covenants.
7.1 Non-competition/Non-Solicitation at Option of the Company in
Return for Payment.
(a) As an inducement to the Company to provide the payments and
benefits to the Participants under the Plan, each Participant acknowledges
and agrees that in the event of such Participant's termination of
employment for any reason (whether or not occurring during the Change of
Control Window), the Company shall have the right (but not the obligation)
to require a Participant to comply with the restrictions set forth in
Section 7.1(b) for a term measured in years and fractions thereof equal to
the Participant's Severance Multiple (the "Non Compete Term"), provided
that if such Participant's employment is not terminated by reason of an
Involuntary Termination during a Change of Control Window (and therefore is
not entitled to receive the payments and benefits set forth in Section 3(a)
hereof), then such Participant need not comply with the restrictions set
forth in this Section 7.1 unless the Company shall pay to such Participant
an amount equal to the amount that would have been payable to such
Participant as a Severance Amount (assuming solely for such purpose that
such Participant were entitled to such amount under Section 3(a) upon his
termination of employment), with such amount to be paid in equal monthly
installments over the Non-Compete Term.
(b) Each Participant acknowledges and agrees that, so long as the
Company complies with its obligations to provide the payments required
under Section 3 or Section 7.1(a), as applicable, he shall not, directly or
indirectly, (i) engage in or have any interest in any sole proprietorship,
partnership, corporation or business or any other person or entity (whether
as an employee, officer, director, partner, agent, security holder,
creditor, consultant or otherwise) that directly or indirectly (or through
any affiliated entity) engages in competition with the Company (for this
purpose, any business that engages in soft drink beverage distribution in
any area in the world in which the Company engages in the soft drink
beverage distribution business shall be deemed to be in competition with
the Company) during the Non-Compete Term; provided that such provision
shall not apply to the Participant's ownership of common stock of the
Parent Company or the acquisition by the Participant, solely as an
investment, of securities of any issuer that is registered under Section
12(b) or 12(g) of the Exchange Act, and that are listed or admitted for
trading on any United States national securities exchange or that are
quoted on the National Association of Securities Dealers Automated
Quotations System, or any similar system or automated dissemination of
quotations of securities prices in common use, so long as the Participant
does not control, acquire a controlling interest in or become a member of a
group which exercises direct or indirect control of, more than five percent
of any class of capital stock of such corporation; or (ii) for himself or
for any other person, firm, corporation, partnership, association or other
entity: (A) employ or attempt to employ or enter into any contractual
arrangement with any employee or former employee of the Company, unless
such employee or former employee has not been employed by the Company for a
period in excess of six months;
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(B) call on or solicit any of the actual or targeted prospective clients of
the Company on behalf of any person or entity in connection with any
business competitive with the business of the Company; or (C) make known
the names and addresses of such clients or any information relating in any
manner to the Company's trade or business relationships with such
customers.
7.2 Nondisclosure. Each Participant acknowledges and agrees that, as
a condition of his participation in the Plan (whether or not the Company
elects to trigger the obligations set forth in Section 7.1 (b)), he shall
not at any time divulge, communicate, use to the detriment of the Company
or for the benefit of any other person or persons, or misuse in any way,
any Confidential Information (as hereinafter defined) pertaining to the
business of the Company. Any Confidential Information or data now or
hereafter acquired by the Participant with respect to the business of the
Company (which shall include, but not be limited to, information concerning
the Company's financial condition, prospects, technology, customers,
suppliers, sources of leads and methods of doing business) shall be deemed
a valuable, special and unique asset of the Company that is received by the
Participant in confidence and as a fiduciary, and Participant shall remain
a fiduciary to the Company with respect to all of such information. For
purposes of the Plan, "Confidential Information" means information
disclosed to the Participant or known by the Participant as a consequence
of or through his employment by the Company (including information
conceived, originated, discovered or developed by the Participant) prior to
or after the date of adoption of the Plan, and not generally known, about
the Company or its business. Notwithstanding the foregoing, nothing herein
shall be deemed to restrict the Participant from disclosing Confidential
Information to the extent required by law.
7.3 Acknowledgment by Participant. As a condition of his participation
in the Plan, each Participant shall acknowledge and confirm that (a) the
restrictive covenants contained in this Section 7: (i) are reasonably
necessary to protect the legitimate business interests of the Company, and
(ii) are not overbroad, overlong, or unfair and are not the result of
overreaching, duress or coercion of any kind, (b) his full, uninhibited and
faithful observance of each of the covenants contained in this Section 7
will not cause him any undue hardship, financial or otherwise, and that
enforcement of each of the covenants contained herein will not impair his
ability to obtain employment commensurate with his abilities and on terms
fully acceptable to him or otherwise to obtain income required for the
comfortable support of him and his family and the satisfaction of the needs
of his creditors and (c) the restrictions contained in this Section 7 are
intended to be, and shall be, for the benefit of and shall be enforceable
by, the Company's successors and permitted assigns.
7.4 Reformation by Court. In the event that a court of competent
jurisdiction shall determine that any provision of this Section 7 is
invalid or more restrictive than permitted under the governing law of such
jurisdiction, then only as to enforcement of this Section 7 within the
jurisdiction of such court, such provision shall be interpreted and
enforced as if it provided for the maximum restriction permitted under such
governing law.
7.5 Injunction. The Company shall be entitled to an injunction from
any court of competent jurisdiction enjoining and restraining any violation
of any or all of the covenants contained in this Section 7 by the
Participant or any of his affiliates, associates, partners or agents,
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either directly or indirectly, and that such right to injunction shall be
cumulative and in addition to whatever other remedies the Company may
possess. Each Participant shall, as a condition of his participation in the
Plan, acknowledge the rights of the Company under this Section 7.5.
8. Plan Administration.
8.1 The Committee. The Plan shall be interpreted, administered and
operated by the Compensation Committee of the Board of Directors of the
Parent Company ("Board"), or such other committee designated by the Board
to interpret, administer and operate the Plan (the "Committee"). The
Committee shall have complete authority, in its sole discretion (subject to
the express provisions of the Plan and the obligation imposed hereby to act
in good faith) to interpret the Plan and to make any determinations
necessary or advisable for the administration of the Plan.
8.2 Administration. The Committee may delegate any of its duties to
such person or persons as it may determine in its sole discretion from time
to time to assist the Committee in the administration of the Plan.
Consistent with the requirements of ERISA and the regulations thereunder of
the Department of Labor, the Committee shall provide adequate written
notice to any Participant whose claim for benefits has been denied, setting
forth specific reasons for such denial, written in a manner calculated to
be understood by such Participant, and affording such Participant a full
and fair review of the decision denying the claim.
8.3 Participants. The Committee shall from time to time select the
employees (each a "Participant" and collectively, the "Participants") who
are to participate in the Plan. The Company shall advise each Participant
of his participation in the Plan by a letter (the "Award Letter"), which
shall include the Level (3 or 4) at which he will participate and his
corresponding Severance Multiple under the Plan and such other terms and
conditions not inconsistent with the Plan. Each Participant shall sign the
Award Letter and return it to the Company with an acknowledgment that the
Participant has read the Plan, understands his rights and obligations under
the Plan, and agrees to be bound by its terms and conditions. Without
conferring any rights whatsoever upon a Participant or employee of the
Company, it is generally intended that individual Participants will be
assigned a level of participation as follows: (i) manager-level employees
of Panamco, LLC may be assigned Level 3 status; and (ii) staff-level
employees of Panamco, LLC may be assigned Level 4 status.
8.4 Termination or Amendment of Plan. The Plan shall expire on
September 18, 2005; provided, however, that on September 18, 2003 and on
each September 18 thereafter (any such anniversary being referred to herein
as a "Renewal Date") the term of the Plan shall be extended for one
additional year unless the Board has determined, subject to the remainder
of this Section 8.4, at least 90 days in advance of the immediately
succeeding Renewal Date that the term of the Plan shall not be so extended.
The Board shall have the right, prior to a Change of Control, in its sole
discretion, to approve the termination or amendment of the Plan; provided,
however, that no such action which would adversely affect the rights or
potential rights of a Participant shall be taken by the Board without the
consent of such Participant from the time the Board is
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informed at a regular or special meeting as to the identity of a person
that may desire to enter into a Change of Control until, in the opinion of
the Board, such person or the Board has abandoned or terminated any
potential Change of Control. In no event shall this Plan be terminated or
amended following a Change of Control in any manner which would adversely
affect the rights or potential rights of a Participant under this Plan with
respect to such Change of Control without the consent of such Participant.
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9. Certain Definitions.
9.1 "Annual Compensation" shall mean: (i) the Participant's current
base salary (determined immediately prior to the Involuntary Termination
and without regard to any decrease in such salary giving rise to the
Involuntary Termination); and (ii) the Participant's target bonus for the
year in which the Involuntary Termination occurs (using the base 1x
multiple).
9.2 "Cause" shall mean: (i) an action or omission of the Participant
that constitutes a willful and material breach of, or failure or refusal
(other than by reason of his disability) to perform his duties as an
employee of the Company which is not cured within 90 days after receipt by
the Participant of written notice of same and which termination is affirmed
by a majority vote of the full Board; (ii) fraud, embezzlement,
misappropriation of funds or breach of trust by the Participant in
connection with the performance of such Participant's services to the
Company; (iii) the Participant's conviction of any crime which involves
dishonesty or a breach of trust; or (iv) gross negligence in connection
with the performance of such Participant's services to the Company, which
is not cured within 90 days after written receipt by the Participant of
written notice of same and which termination is affirmed by a majority vote
of the full Board. Any termination of employment for Cause shall be made in
writing to the Participant, which notice shall set forth in detail all acts
or omissions upon which the Company is relying for such termination. Any
determination of Cause by the Board shall be binding and conclusive on all
parties.
9.3 "Change of Control" shall be deemed to have occurred if: (i) any
"person" as such term is used in Sections 13(d) and 14(d) of the Exchange
Act (other than under any employee benefit plan of the Parent Company, and
excluding stockholders of the Parent Company who are stockholders of the
Parent Company as of the date of adoption of the Plan), becomes the
"beneficial owner" (as defined in Rule 13d-3 under the Exchange Act),
directly or indirectly, of securities of the Parent Company representing
50% or more of the combined voting power of the Parent Company's then
outstanding securities; (ii) during any period of two consecutive years
(not including any period prior to the adoption of the Plan) individuals
who at the beginning of such period constitute the Board, and any new
director (other than a director designated by a person who has entered into
an agreement with the Parent Company to effect a transaction described in
clause (i), (iii) or (iv) of this Section 9.3) whose election by the Parent
Company's stockholders was recommended by the Board with a vote of at least
three-quarters of the directors still in office who either were directors
at the beginning of the two-year period or whose election or nomination for
election was previously so recommended, cease for any reason to constitute
at least a majority of the Board; (iii) the consummation of a merger or
consolidation of the Parent Company with any other corporation other than a
merger or consolidation which would result in the voting securities of the
Parent Company outstanding immediately prior thereto continuing to
represent (either by remaining outstanding or by being converted into
voting shares of the surviving entity) more than 50% of the combined voting
power of the voting securities of the Parent Company or such surviving
entity outstanding immediately after such merger or consolidation; or (iv)
the stockholders of the Parent Company approve a plan of complete
liquidation of the Parent Company or an agreement for the sale or
disposition by the Parent Company of all or substantially all of the Parent
Company's assets.
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9.4 "Change of Control Window" shall mean the period that commences 90
days prior to (a) the occurrence of a Change of Control or (b) any public
announcement of the intention to undertake a transaction that if
consummated would result in a Change of Control, and terminates 24 months
following the date of the Change of Control.
9.5 "Code" shall mean the Internal Revenue Code of 1986, as amended.
9.6 "ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended.
9.7 "Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
9.8 "Excise Tax" shall mean the excise tax imposed by Section 4999 of
the Code, together with any interest or penalties imposed with respect to
such excise tax.
9.9 "Involuntary Termination" shall mean: (a) any termination of the
Participant's employment by the Company other than for Cause; or (b) the
termination of the Participant's employment by the Participant following
the occurrence of (i) without the Participant's express written consent, a
material reduction in a Participant's position (including status, offices,
titles and reporting requirements), authority, duties or responsibilities
relative to the Participant's position, authority, duties or
responsibilities in effect immediately prior to the Change of Control,
including the assignment to the Participant of any duties inconsistent in
any material respect with the Participant's position, authority, duties or
responsibilities in effect immediately prior to the Change of Control,
excluding for this purpose an isolated, insubstantial and inadvertent
action not taken in bad faith and which is remedied by the Company promptly
after receipt of notice thereof given by the Participant; (ii) without the
Participant's express written consent, the Company's requiring the
Participant's principal place of employment to be based at any location
beyond fifty (50) miles of the location of such Participant's principal
place of employment as it existed immediately prior to the Change of
Control, except for travel reasonably required in the performance of the
Participant's responsibilities; (iii) a reduction in the Participant's
then-current base salary or bonus opportunity; or (iv) a material reduction
in any of the Participant's then-current material benefits or perquisites,
including without limitation and as applicable, life insurance, health
insurance, disability insurance, dental insurance, car allowance and
vacation days. For purposes of this definition, solely with respect to the
occurrence following the first anniversary of a Change of Control of an
event described in Section 9.10(b), a Participant's termination of his or
her employment following the occurrence of such event shall not be treated
as an Involuntary Termination unless such Participant notifies the Company
of such event within 90 days of such Participant's knowledge of the
occurrence of such event.
9.10 "Level 3 employee" shall mean each Participant who the Committee
has determined shall participate as a Level 3 employee.
9.11 "Level 4 employee" shall mean each Participant who the Committee
has determined shall participate as a Level 4 employee.
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9.12 "Payment" shall mean any payment or distribution in the nature of
compensation (within the meaning of Section 280G(b)(2) of the Code) to or
for the benefit of a Participant, whether paid or payable pursuant to this
Plan or otherwise.
9.13 "Severance Multiple" shall mean:
(a) with respect to a Level 3 Employee, one; and
(b) with respect to a Level 4 Employee, one-half.
10. General Provisions
10.1 Assignment. Each Participant's rights under the Plan shall be
non-transferable except by will or by the laws of descent and distribution
and except insofar as applicable law may otherwise require. Any purported
assignment in violation of the preceding sentence shall be void.
10.2 Governing Law. Except to the extent preempted by ERISA, the Plan
shall be governed by and construed in accordance with the laws of the State
of Florida without reference to principles of conflict of laws.
10.3 Successors. The Plan shall be for the benefit of and binding upon
the Participants and their respective heirs, personal representatives,
legal representatives, successors and, where applicable, assigns, and upon
the Company and its successors (including, without limitation, any
successor to the Company, whether by merger, consolidation, sale of stock,
sale of assets or otherwise). The Company shall require any successor or
assign (whether direct or indirect, by purchase, merger, consolidation or
otherwise) to all or substantially all of the business and/or assets of the
Company, expressly, absolutely, unconditionally to assume and agree to
perform under the Plan in the same manner and to the same extent that the
Company would be required to perform it if no such succession or assignment
had taken place.
10.4 Severability. The invalidity of any one or more of the words,
phrases, sentences, clauses or sections contained in the Plan shall not
affect the enforceability of the remaining portions of the Plan or any part
thereof, all of which are inserted conditionally on their being valid in
law, and, in the event that any one or more of the words, phrases,
sentences, clauses or sections contained in the Plan shall be declared
invalid, the Plan shall be construed as if such invalid word or words,
phrase or phrases, sentence or sentences, clause or clauses, or section or
sections had not been inserted.
10.5 Section Headings and Gender. The section headings contained the
Plan are for reference purposes only and shall not affect in any way the
meaning or interpretation of the Plan. All pronouns and any variations
thereof shall be deemed to refer to the masculine, feminine or neuter, as
the identity of the person or persons may require.
10.6. No Duty to Mitigate. Except as otherwise specifically provided
herein, a Participant shall not be required to mitigate the amount of any
payment contemplated by the Plan,
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nor shall any such payment be reduced by any earnings that the Participant
may receive from any other source.
10.7 Noncumulation of Benefits. A Participant may not cumulate the
benefits provided under the Plan with any severance benefits, social costs
or the like ("Other Severance Benefits") that such Participant may be
entitled to by agreement with the Company (including, without limitation,
pursuant to an employment agreement) or under applicable law in connection
with the termination of his employment. To the extent that a Participant
receives any Other Severance Benefits, then the payments and benefits
payable hereunder to such participant shall be reduced by a like amount. To
the extent the Company is required to provide payments or benefits to any
Participant under the Worker Adjustment and Retraining Notification Act (or
any state, local or foreign law relating to severance or dismissal
benefits), the benefits payable hereunder shall be first applied to satisfy
such obligation.
10.8 No Employment Agreement. The Plan does not obligate the Company
to continue to employ a Participant. The Participant's employment is and
shall, subject to the terms of any applicable written employment agreement
between the Company and Participant, continue to be at-will, as defined
under applicable law.
10.9 No Funding of Plan. The Plan shall not be funded. No Participant
shall have any right to, or interest in, any assets of the Company as a
result of his participation in the Plan.
10.10 Indemnification. If a Participant seeks, in any action, suit or
arbitration, to enforce or to recover damages for breach of his rights
under the Plan, the Participant shall be entitled to recover from the
Company promptly as incurred, and shall be indemnified by the Company
against, any and all expenses and disbursements, including attorneys' fees,
actually and reasonably incurred by the Participant, provided that a
Participant shall not be entitled to indemnification if it is finally
determined that the action was brought by the Participant frivolously or in
bad faith.
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EXHIBIT "A"
RELEASE AGREEMENT
In consideration of the mutual promises, payments and benefits
provided for in the annexed Panamerican Beverages, Inc. Key Employee
Retention and Severance Plan (the "Plan"), and the release from [insert
employee's name] (the "Employee") set forth herein, Panamerican Beverages,
Inc. (the "Company") and the Employee agree to the terms of this Release
Agreement. Capitalized terms used and not defined in this Release Agreement
shall have the meanings assigned thereto in the Plan.
1. The Employee acknowledges and agrees that the Company is under no
obligation to offer the Employee the payments and benefits set forth in the
annexed Plan, unless the Employee consents to the terms of this Release
Agreement. The Employee further acknowledges that he/she is under no
obligation to consent to the terms of this Release Agreement and that the
Employee has entered into this agreement freely and voluntarily.
2. The Employee voluntarily, knowingly and willingly releases and
forever discharges the Company and its affiliates, together with its and
their respective officers, directors, partners, shareholders, employees and
agents, and each of its and their predecessors, successors and assigns
(collectively, "Releasees"), from any and all charges, complaints, claims,
promises, agreements, controversies, causes of action and demands of any
nature whatsoever that the Employee or his/her executors, administrators,
successors or assigns ever had, now have or hereafter can, shall or may
have against Releasees by reason of any matter, cause or thing whatsoever
arising prior to the time of signing of this Release Agreement by the
Employee. The release being provided by the Employee in this Release
Agreement includes, but is not limited to, any rights or claims relating in
any way to the Employee's employment relationship with the Company or any
its Affiliates, or the termination thereof, or under any statute,
including, but not limited to, the federal Age Discrimination in Employment
Act of 1967, Title VII of the Civil Rights Act of 1964, the Civil Rights
Act of 1990, the Americans with Disabilities Act of 1990, the Employee
Retirement Income Security Act of 1974, the Family and Medical Leave Act of
1993, each as amended, and any other federal, state or local law or
judicial decision.
3. The Employee acknowledges and agrees that he/she shall not,
directly or indirectly, seek or further be entitled to any personal
recovery in any lawsuit or other claim against the Company or any other
Releasee based on any event arising out of the matters released in
paragraph 2.
4. Nothing herein shall be deemed to release: (i) any of the
Employee's rights under the Plan; or (ii) any of the vested benefits that
the Employee has accrued prior to the date this Release Agreement is
executed by the Employee under the employee benefit plans and arrangements
of the Company or any of its affiliates.
5. In consideration of the Employee's release set forth in paragraph
2, the Company knowingly and willingly releases and forever discharges the
Employee from any and all charges,
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complaints, claims, promises, agreements, controversies, causes of action
and demands of any nature whatsoever that the Company now has or hereafter
can, shall or may have against him/her by reason of any matter, cause or
thing whatsoever arising prior to the time of signing of this Release
Agreement by the Company, provided, however, that nothing herein is
intended to release any claim the Company may have against the Employee for
any illegal conduct.
6. The Employee acknowledges that the Company has advised him/her to
consult with an attorney of his/her choice prior to signing this Release
Agreement. The Employee represents that, to the extent he/she desires,
he/she has had the opportunity to review this Release Agreement with an
attorney of his/her choice.
7. The Employee acknowledges that he/she has been offered the
opportunity to consider the terms of this Release Agreement for a period of
at least forty-five (45) days, although he/she may sign it sooner should
he/she desire. The Employee further shall have seven additional days from
the date of signing this Release Agreement to revoke his/her consent hereto
by notifying, in writing, the General Counsel of the Company. This Release
Agreement will not become effective until seven days after the date on
which the Employee has signed it without revocation.
Dated: ____________________ _______________________________
[Employee Name]
PANAMERICAN BEVERAGES, INC.
By:
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Title: