EXHIBIT 10.1
EXECUTIVE RETENTION AGREEMENT
THIS AGREEMENT by and between AMERICA ONLINE LATIN AMERICA, INC., a
Delaware corporation (the "Company"), and ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the "Executive") is
made as of June 5, 2004 (the "Effective Date").
WHEREAS, the Executive is employed by the Company, and because of his
employment, possesses detailed knowledge of the Company and its business
operations, as a result of which the Executive's continued service to the
Company is very important to the future success of the Company; and
WHEREAS, the Company recognizes that, as is the case with many
publicly-held corporations, the possibility of a change in control of the
Company exists and that such possibility, and the uncertainty and questions
which it and the Company's current financial condition may raise among key
personnel, may result in the departure or distraction of key personnel to the
detriment of the Company and its stockholders; and
WHEREAS, the Compensation Committee and the Special Committee of the
Board of Directors of the Company have determined that appropriate steps should
be taken to reinforce and encourage the continued employment and dedication of
the Company's key personnel.
NOW, THEREFORE, as an inducement for and in consideration of the
Executive remaining in its employ, the Company agrees that the Executive shall
receive the benefits set forth in this Agreement.
1. RETENTION BONUS. If, and only if, the Executive remains employed by
the Company through July 1, 2005, the Company shall pay the Executive on July 1,
2005, a lump sum payment (the "Retention Bonus") in the amount of US$120,000;
provided, that in the event any of the following events occurs prior to July 1,
2005, the Company will pay the Executive or his estate the Retention Bonus on
the date of the occurrence of the applicable event: (a) the Company provides a
Notice of Termination (as defined in Section 3.3) with respect to a termination
of Executive's employment without Cause or as a result of the Executive's
Disability; (b) the Executive provides a legitimate Notice of Termination with
respect to the termination of his employment for Good Reason; or (c) the
Executive dies.
2. EQUITY COMPENSATION. On the date hereof, the Company grants to the
Executive a non-qualified option to purchase 120,000 shares of the Class A
common stock of the Company pursuant to the Company's 2000 Stock Plan (the
"Plan") at a per share exercise price equal to US$1.59 (the "Option"). The
Option will become exercisable for 60,000 shares as of January 1, 2005, and for
the remaining 60,000 shares as of January 1, 2006.
In the event the Executive's employment is terminated by the Company
without Cause or the Executive terminates his employment for Good Reason, the
Option and all other then-outstanding options to purchase the Company's class A
common stock issued to the Executive (collectively, the "Options") will become
fully exercisable as of the date of the Notice of Termination (as defined in
paragraph 3.3 below) and will remain outstanding during the Leave of Absence
Period (as defined in paragraph 3.1(a)), which will be an approved leave of
absence for purposes of Paragraph 13(e) of the Plan. In the event of a Going
Private Event, the Options will become fully exercisable immediately prior to
and for purposes of the Going Private Event such that the Executive will be
entitled to exercise his options and either participate in the Going Private
Event or otherwise dispose of the acquired shares in connection with the Going
Private Event. In the event of a Change in Control, in addition to any other
rights the Executive may have under the Plan, the Options must either: (a) be
assumed by an acquiring entity in accordance with Paragraph 24B(a) of the Plan,
in which event the Options will become fully exercisable if the Executive's
employment is terminated without Cause or the Executive terminates his
employment for Good Reason; (b) become fully exercisable for purposes of and
prior to the termination of the Options pursuant to Paragraphs 24B(b) or (c) of
the Plan; or (c) otherwise become fully exercisable immediately prior to the
Change in Control. The Option will be subject to all of the other terms and
conditions, including terms relating to the termination of the Options, set
forth in the Company's standard form of Notice of Grant of Stock Options and
Option Agreement. To the extent necessary to make the terms of the Options
consistent with the provisions of this Agreement, this Agreement constitutes an
amendment to the already outstanding Options identified on Exhibit A hereto.
3. PAYMENTS TO EXECUTIVE ON TERMINATION OF EMPLOYMENT.
3.1. PAYMENTS AND BENEFITS DUE ON TERMINATION OF EMPLOYMENT BY THE
COMPANY WITHOUT CAUSE OR AS A RESULT OF DISABILITY OR BY THE
EXECUTIVE FOR GOOD REASON.
(a) PAYMENTS. If the Executive's employment is terminated by the
Company without Cause or as a result of the Executive's
Disability or if the Executive's employment is terminated by
the Executive for Good Reason, then during the period
following the date of the Notice of Termination and prior to
the Termination Date (the "Leave of Absence Period"), the
Executive shall no longer receive any base salary from the
Company and shall be on an unpaid leave of absence from the
Company; provided, that in addition to any amounts due to the
Executive under Paragraph 1 hereof, in the event that the
Executive executes and delivers to the Company a Release and
Waiver in the form of Exhibit B hereto and, if the Executive's
employment with the Company's Brazilian subsidiary ("AOLB") is
terminated concurrently, together with any other document
which may be required to release the Company and AOLB from
Released Claims (as defined in the form of document attached
as exhibit B) under local law (collectively, the "Release
Documents") within 21 days after the date of the Notice of
Termination, the Executive shall be entitled to be paid (i) a
lump-sum payment (the "Severance Amount") equal to 100% of the
Executive's then-current annual base salary (it being
understood that for purposes of this section 3.1(a)(i), "base
salary" shall be deemed to be the aggregate of the annual base
salary of the Executive with the Company and with AOLB)
payable within 30 days of the date of the Notice of
Termination, (ii) within 30 days of the date of the Notice of
Termination, such portion of the Executive's base salary as
has accrued by virtue of his employment during the period
through the date of the Notice of Termination that has not yet
been paid, together with any amounts for accrued but unused
vacation time and for expense reimbursement and similar items
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which have been properly incurred in accordance with the
Company's policies prior to termination and have not yet been
paid, and (iii) on or prior to the date on which bonuses are
paid generally to Company employees, with respect to the
fiscal year in which the termination of employment occurs, the
portion of the annual bonus for which the Executive was
eligible through the date of the Notice of Termination that is
calculated using the methodology that will be applied to the
calculation of bonuses generally (provided that to the extent
that performance of personal objectives constitutes a portion
of the bonus eligibility calculation, the Executive will be
deemed to have achieved 100% of his personal objectives).
Notwithstanding the foregoing, in the event the Executive's
employment with AOLB is terminated concurrently, the Severance
Amount shall be reduced by the amount of any payments which
the Executive is entitled to receive from or on behalf of AOLB
in connection with the termination of the Executive's
employment under the laws of Brazil or any collective
bargaining or union agreement to which AOLB may then be a
party.
(b) CONTINUATION OF BENEFITS. If the Executive's employment is
terminated by the Company without Cause or as a result of the
Executive's Disability, or if the Executive's employment is
terminated by the Executive for Good Reason, then during the
Leave of Absence Period he will remain eligible for
participation in all benefit plans of the Company; provided,
however, that the Executive will not be entitled to the grant
of any additional stock options or other stock rights under
the Plan; provided, further, that with respect to health and
dental coverage, in the event that the Executive executes and
delivers to the Release Documentswithin 21 days after the date
of the Notice of Termination, the Company shall designate one
of the following, at its option: (i) the Executive shall
remain eligible for participation in the Company's health and
dental plans during the Leave of Absence Period, (ii) should
the Executive qualify for continuation of medical benefits
under the Consolidated Omnibus Budget Reconciliation Act of
1985, as amended and in effect on the date of the Executive's
termination of employment hereunder ("COBRA"), the Executive
shall no longer be eligible for coverage under the Company's
health and dental plans as of the beginning of the Leave of
Absence Period and, if the Executive properly elects and makes
payments required by COBRA, the Company will reimburse the
Executive, upon submission of reasonable documentation of such
payments, for the cost thereof for the applicable COBRA period
but not exceeding twelve months, or (iii) the Company shall
purchase for the benefit of the Executive and his family, if
applicable, health and dental insurance coverage, for the
Leave of Absence Period, equivalent to the coverage in effect
immediately prior to the Leave of Absence Period.
3.2. PAYMENTS DUE ON TERMINATION BY THE COMPANY FOR CAUSE OR BY THE
EXECUTIVE OTHER THAN FOR GOOD REASON OR UPON THE DEATH OF THE EXECUTIVE. In the
event the Company terminates the Executive's employment for Cause or the
Executive terminates his employment other than for Good Reason, or the Executive
dies, then the Executive shall be entitled as of the Termination Date to no
additional compensation under this Agreement, except: (a) in the case of the
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death of the Executive, (i) as provided in Paragraph 1 hereof, (ii) within 30
days of the date of death, such portion of the Executive's base salary as has
accrued by virtue of his employment through such date that has not yet been
paid, together with any amounts for accrued but unused vacation time and for
expense reimbursement and similar items which have been properly incurred in
accordance with the Company's policies prior to termination and have not yet
been paid, and (iii) on or prior to the date on which bonuses are paid generally
to Company employees, with respect to the fiscal year in which the
Executive's death occurs, the portion of the annual bonus for which the
Executive was eligible through the date of death that is calculated using the
methodology that will be applied to the calculation of bonuses generally
(provided that to the extent that performance of personal objectives constitutes
a portion of the bonus eligibility calculation, the Executive will be deemed to
have achieved 100% of his personal objectives); and (b) as otherwise provided
under the benefit plans of the Company.
3.3. NOTICE OF TERMINATION. Any termination of the Executive's
employment by the Company or by the Executive (other than as a result of death)
shall be communicated by written notice of termination to the other party (a
"Notice of Termination") addressed to the receiving party's address set forth
below or to such other address as a party may designate by notice hereunder, and
shall be either: (a) delivered by hand; (b) made by telecopy; or (c) sent by
overnight courier.
If to the Company: AOL Latin America
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇., ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: President
Attn: Associate General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to the Executive: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
All notices and other communications shall be deemed to have been given
either: (a) if by hand, at the time of the delivery thereof to the receiving
party at the address of such party set forth above; (b) if made by telecopy, at
the time that receipt thereof has been acknowledged by electronic confirmation
or otherwise; or (c) if sent by overnight courier, on the next business day
following the day such notice is delivered to the courier service.
Any termination by the Company for Cause must be by a Notice of
Termination given within 60 days of the Company's knowledge of the event(s) or
circumstance(s) which constitute(s) Cause and will be effective immediately
unless a later date is otherwise stated in such notice, which date shall be the
termination date (the "Termination Date"). Any termination of the Executive's
employment by the Company without Cause must be by a Notice of Termination to
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the Executive, effective twelve months after the date the notice is given, which
date of effectiveness shall be the Termination Date. Any termination of the
Executive's employment as a result of the Executive's Disability must be by
Notice of Termination and will be effective immediately unless a later date is
otherwise stated in such notice, which date shall be the Termination Date.
A termination of the Executive's employment by him for Good Reason must
be by a Notice of Termination given within 60 days of the Executive's knowledge
of the event(s) or circumstance(s) that constitute(s) Good Reason, or within 60
days of the end of the cure period, if applicable. The Termination Date, which
shall be set forth in the Notice of Termination, shall be no later than twelve
months after the date of the Notice of Termination.
The failure by the Executive or the Company to set forth in the Notice
of Termination any fact or circumstance which contributes to a showing of Good
Reason or Cause shall not waive any right of the Executive or the Company,
respectively, hereunder or preclude the Executive or the Company, respectively,
from asserting any such fact or circumstance in enforcing the Executive's or the
Company's rights hereunder.
4. KEY DEFINITIONS. As used herein, the following terms shall have the
following respective meanings:
4.1 "CHANGE IN CONTROL" means the first to occur of the following:
(a) the date on which AOL and ODC do not own, collectively,
shares of capital stock of the Company representing more than 50% of the voting
power entitled to be cast at elections for directors ("VOTING POWER") of the
Company,
(b) the date on which AOL and ODC do not collectively have the
right to approve the election of (as a stockholder or through its designee on
the Special Committee) at least a majority of the Board of Directors of the
Company..
(c) any Person or Persons other than AOL or ODC acquires any
general power to prevent the Company's Board of Directors or shareholders from
taking action on a substantial range of corporate actions without the approval
of such Person or Persons other than pursuant to covenants and agreements of the
Company contained in any loan documents, indentures or similar agreements
entered into in connection with any bona fide indebtedness for money borrowed by
the Company after the date hereof, or
(d) the date on which the Company sells, leases, exchanges or
otherwise transfers (in one transaction or a series of related transactions) all
or substantially all of the assets of the Company to any Person, other than a
transaction in which
(x) AOL and ODC (i) own, collectively, shares of capital stock
or other equity securities of the acquiring Person representing more
than 50% of the Voting Power or (ii) individually each has the right to
approve the election of at least a majority of the board of directors
or managers, as applicable, of the acquiring Person, and
(y) no Person or Persons other than AOL or ODC has any general
power described in clause (c) above with respect to such acquiring
Person.
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For purposes of this definition of Change in Control: (a) "AOL" means,
collectively, America Online, Inc., a Delaware corporation, and Time Warner
Inc., a Delaware corporation, and each of their successors, and any of their
wholly owned subsidiaries; (b) "ODC" means, collectively, Aspen Investments LLC,
a Delaware limited liability company, and Atlantis Investments LLC, a Delaware
limited liability company, and each of their successors, any of their wholly
owned subsidiaries and any entities wholly owned by ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ or their family members; (c) "RESTATED CERTIFICATE OF INCORPORATION"
means the Company's Amended and Restated Certificate of Incorporation as the
same may be amended from time to time; and (d) "PERSON" means an individual,
corporation, partnership, limited liability company, joint venture, trust,
university, or unincorporated organization, or a government or any agency or
political subdivision thereof.
4.2 "GOING PRIVATE EVENT" means the event or transaction which results
in the Company ceasing to be required to file the reports, information and
documents required to be filed with the Securities and Exchange Commission
pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934.
4.3 "CAUSE" means: (i) your conviction of, or nolo contendere or guilty
plea to, a felony (whether any right to appeal has been or may be exercised);
(ii) your failure or refusal without proper cause to perform your duties with
the Company, if such failure or refusal remains uncured for 20 days after notice
to you; (iii) fraud, embezzlement, misappropriation, or reckless or willful
destruction of Company property; (iv) breach of any statutory or common law duty
of loyalty to the Company; (v) your violation of the Agreement to Preserve
Confidentiality, Noncompetition and Proprietary Rights dated May 1, 2000 between
you and the Company (the "Confidentiality Agreement") or your material violation
of the Company's Standards of Business Conduct (it being agreed that any
violation of the ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Policy shall be deemed to be material for
purposes of this definition of "Cause"); or (vi) your improper conduct
substantially prejudicial to the Company's business.
4.4 "GOOD REASON" means: (a) a reduction in the Executive's annual base
salary; (b) a reduction in the percentage of the Executive's base salary for
which the Executive is eligible for an annual bonus; (c) a material change by
the Company in the Executive's title, responsibilities or reporting relationship
which materially adversely affects his position with the Company or causes it to
become of less responsibility or scope, provided that such material change is
not in connection with a termination of the Executive's employment hereunder for
Cause, and further provided that a change in the Executive's title shall not
in and of itself constitute "Good Reason" if such change is made in connection
with a transaction resulting in a Change in Control; (d) at any time following a
Change in Control, a material increase in the responsibilities and duties of the
Executive without a commensurate increase in base salary; or (e) the failure of
the Company to comply with any provision of this Agreement which failure, if
capable of remedy, has not been cured within 20 days after notice of such
noncompliance has been given by the Executive to the Company, provided that any
notice of termination hereunder shall be given within 60 days after the end of
such 20-day period; or (f) a requirement by the Company that the Executive
change his principal place of employment to a location which is outside of the
greater Sao Paulo metropolitan area.
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4.5 "DISABILITY" means the Executive's absence from the full-time
performance of the Executive's duties with the Company for 180 consecutive
calendar days as a result of incapacity due to mental or physical illness which
is determined to be total and permanent by a physician selected by the Company
or its insurers and acceptable to the Executive or the Executive's legal
representative.
5. LETTER(S) OF CREDIT. In order to assure the Executive the prompt
payment of amounts due him under Paragraph 1 of this Agreement, the Company
agrees to secure and to keep in place until December 31, 2005 one or more
irrevocable letter(s) of credit from Fifth Third Bank or another bank reasonably
acceptable to the Executive in the amount of US$90,000, which shall allow the
Executive (or his legal representative) to draw down the amount estimated at the
date of this Agreement to be the net amount (after applicable withholding taxes
and other mandatory payments to government entities) due him under Paragraph 1
of this Agreement upon certification by the Executive (or his legal
representative) and the Company that payment is due the Executive pursuant to
this Agreement; provided, that in the event that the letter of credit is drawn
upon, (i) the parties will work together in good faith to ensure that all such
taxes and payments are made on a timely manner, and (ii) based on the actual
withholdings and payments that are required to be made, the parties will
determine if the amount of the draw received by the Executive is greater than or
less than the actual net amount should be, and an appropriate "true up" payment
will be promptly made. If the Company makes a payment of the amounts due to the
Executive under Paragraph 1, the Executive will cooperate promptly upon the
request of the Company to assist the Company in causing the letter of credit to
be cancelled or terminated (including, if requested by the Company, furnishing
to the issuing bank a certification to the effect that the letter of credit is
no longer needed and may be cancelled). A failure by the Company to keep such
letter(s) of credit in effect, or to renew such letter(s) of credit at least 30
days prior to the expiration date of the letter(s) of credit shall entitle the
Executive to the payment of the Retention Bonus on the 30th day prior to the
expiration date of the letter of credit. The Company agrees to notify the
Executive within three business days of any failure or inability to maintain or
renew such letter(s) of credit. The Company agrees that it will not take any
action to prevent, hinder or delay the legitimate exercise by the Executive of
his rights to exercise the security provisions provided in this Paragraph 5 and,
further, agrees to cooperate with the Executive to promptly issue to the bank
the certification required above if and when payment is due to the Executive and
to take such other actions as may be necessary to enable the Executive to
exercise and obtain the benefits of such security provisions, in the absence of
fraudulent or unlawful conduct on the part of the Executive with respect to such
exercise. In the event of a dispute regarding whether the Executive is due
payment under Paragraph 1 of this Agreement as a result of which the Company has
refused to issue the certification referred to above, following resolution of
the dispute in accordance with Paragraph 8 of this Agreement, the Company will
pay all legal fees of the Executive incurred in that proceeding if the Executive
prevails, and each party will bear its own costs if the Company prevails.
6. NOT AN EMPLOYMENT CONTRACT. The Executive and the Company
acknowledge: (a) that the Executive is an employee at will of the Company; (b)
that this Agreement does not constitute a contract of employment or impose on
the Company any obligation to retain the Executive as an employee; and (c) that
the Executive may terminate his employment with the Company at any time.
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7. TAXES. The Executive will not be entitled to any additional payments
fin the event the Executive becomes subject to tax under Section 4999 of the
Internal Revenue Code or any similar tax ("Excise Tax") as a result of any
payment (within the meaning of Section 280G of the Internal revenue Code or
other applicable provision) made pursuant to this Agreement.
8. DISPUTES; ARBITRATION. All claims by the Executive for benefits
under this Agreement shall be directed to and determined by the Board of
Directors of the Company and shall be in writing. Any denial by the Board of
Directors of a claim for benefits under this Agreement shall be delivered to the
Executive in writing and shall set forth the specific reasons for the denial and
the specific provisions of this Agreement relied upon. The Board of Directors
shall afford a reasonable opportunity to the Executive for a review of the
decision denying a claim. Any further dispute or controversy arising under or in
connection with this Agreement shall be settled exclusively by arbitration in
Fort Lauderdale, Florida, in accordance with the rules of the American
Arbitration Association then in effect. Judgment may be entered on the
arbitrator's award in any court having jurisdiction.
9. SUCCESSORS.
9.1 SUCCESSOR TO COMPANY. The Company shall require any successor
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all of the business or assets of the Company expressly to
assume and agree to perform this Agreement to the same extent that the Company
would be required to perform it if no such succession had taken place. Failure
of the Company to obtain an assumption of this Agreement at or prior to the
effectiveness of any succession shall be a breach of this Agreement and shall
constitute Good Reason if the Executive elects to terminate employment. As used
in this Agreement, "Company" shall mean the Company as defined above and any
successor to its business or assets as aforesaid which assumes and agrees to
perform this Agreement, by operation of law or otherwise.
9.2 SUCCESSOR TO EXECUTIVE. This Agreement shall inure to the benefit
of and be enforceable by the Executive's personal or legal representatives,
executors, administrators, successors, heirs, distributees, devisees and
legatees. If the Executive should die while any amount would still be payable to
the Executive or his family hereunder if the Executive had continued to live,
all such amounts, unless otherwise provided herein, shall be paid in accordance
with the terms of this Agreement to the executors, personal representatives or
administrators of the Executive's estate.
10. MISCELLANEOUS.
10.1 SEVERABILITY. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any other
provision of this Agreement, which shall remain in full force and effect.
10.2 GOVERNING LAW. The validity, interpretation, construction and
performance of this Agreement shall be governed by the internal laws of the
State of Florida, without regard to conflicts of law principles.
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10.3 TAX WITHHOLDING. Any payments provided for hereunder shall be paid
net of any applicable tax withholding required under federal, state or local
law.
10.4 CONFIDENTIALITY. The Executive shall not disclose to any third
party the existence or terms of this Agreement, except as may be required by law
or for purposes of securing professional financial, tax or legal services.
10.5 ENTIRE AGREEMENT. This Agreement, the Notice of Grant of Stock
Options and Option Agreement dated as of the date hereof (a copy of which is
attached to this Agreement as Exhibit C) set forth the entire agreement of the
parties hereto in respect of the subject matter contained herein and supersede
all prior agreements, promises, covenants, arrangements, communications,
representations or warranties, whether oral or written, by any officer, employee
or representative of any party hereto in respect of the subject matter contained
herein; and any prior agreement of the parties hereto in respect of the subject
matter contained herein is hereby terminated and cancelled; provided that the
letter agreement dated December 15, 2003, between the Executive and the Company
remains in full force and effect and is unmodified hereby. To the extent
necessary to make the terms of the already outstanding Options consistent with
the provisions of this Agreement, this Agreement constitutes an amendment to the
already outstanding Options identified on Exhibit A hereto. In connection with,
and in consideration of, the obligations of AOLA set forth in this Agreement,
the Executive acknowledges and agrees to the continued validity of the
Confidentiality Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first set forth above.
AMERICA ONLINE LATIN AMERICA, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇
Executive Vice President and Chief
Financial Officer
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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EXHIBIT A
OUTSTANDING OPTIONS
DATE SHARES EXERCISE PRICE
---- ------ --------------
August 7, 2000 200,000 $8.00
January 2, 2001 90,000 $2.72
April 9, 2002 44,600 $2.12
January 1, 2004 44,600 $1.42
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EXHIBIT B
RELEASE AND WAIVER
In exchange and consideration for the Company's promises to me in my Executive
Retention Agreement dated _________, I agree to release and discharge
unconditionally America Online Latin America, Inc. ("AOLA"), and any successors,
subsidiaries, affiliates, related entities, predecessors, merged entities and
parent entities, and their respective officers, directors, stockholders,
employees, benefit plan administrators and trustees, agents, attorneys,
insurers, representatives, affiliates, successors and assigns (collectively, the
"Releasees"), from any and all claims, actions, causes of action, demands,
obligations or damages of any kind arising from my employment with
____________[INSERT NAME OF APPROPRIATE ENTITY] and my separation from
employment or otherwise, whether known or unknown by me, which I ever had or now
have upon or by reason of any matter, cause or thing, up to an including the day
I sign this Release and Waiver (collectively, the "Released Claims"). The
Released Claims include, but are not limited to, all claims arising out of or
related to any stock options held by me or granted to me by the Company; all
claims under Title VII of the Civil Rights Act of 1964, as amended; all claims
under the Worker Adjustment and Retraining Notification Act (WARN), or similar
state statutes; all claims under the Americans with Disabilities Act; all claims
under the Age Discrimination in Employment Act ("ADEA"); all claims under the
Older Workers Benefit Protection Act ("OWBPA"); all claims under the Fair Labor
Standards Act; all claims under the National Labor Relations Act; all claims
under the Family and Medical Leave Act; all claims under the Employee Retirement
Income Security Act; all claims under 42 U.S.C. ss. 1981; all claims under
Chapter 760, Florida Statutes; all claims under Chapter 448, Florida Statutes;
and all claims under other analogous foreign, federal, state, and local laws,
regulation, statutes and ordinances; all claims under any principle of common
law; all claims concerning any right to reinstatement; and all claims for any
type of relief from any of the Releasees, whether foreign, federal, state or
local, whether statutory, regulatory or common law, and whether tort, contract
or otherwise, through the date I sign this Release and Waiver. This release of
claims does not affect (i) any pending claim for workers' compensation benefits,
(ii) my vested rights, if any, in AOLA's 401(k) plan, (iii) my rights to
exercise any and all AOLA stock options held by me that are exercisable during
the applicable period of exercise and in accordance with all other terms of
those options and the stock options plans, agreements, and notices under which
such options were granted, or (iv) any rights to indemnification I may have
under applicable law or AOLA or ___________[INSERT NAME OF APPROPRIATE ENTITY]
policy by virtue of my employment with _____________[INSERT NAME OF APPROPRIATE
ENTITY] for actions taken within the scope of my employment.
[Pursuant to the OWBPA, I acknowledge and warrant the following: (i) that I am
waiving rights and claims for age discrimination under the ADEA and OWBPA, in
exchange for the consideration described above, which is not otherwise due to
me; (ii) I have consulted with an attorney before signing this Release and
Waiver; (iii) I am not waiving rights or claims for age discrimination that may
arise after the effective date of this Release and Waiver; (iv) I have been
given a period of at least twenty-one (21) days in which to consider this
Release and Waiver and the waiver of any claims I have or may have under law,
including my rights under the ADEA and OWBPA, before signing below; and (v) I
understand that I may revoke the waiver of my age discrimination claims under
the ADEA and OWBPA within seven (7) days after my execution of this Release and
Waiver, and that such waiver shall not become effective or enforceable until
seven (7) days after the date on which I execute this Release and Waiver. Any
such revocation must be made in writing and delivered by certified mail to both
the Chief Executive Officer and the General Counsel of AOLA, each at the
following address: America Online Latin America, Inc.,
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇, ▇▇. ▇▇▇▇▇▇▇▇▇▇, ▇▇ 33309.]
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By signing below, I acknowledge that I have carefully reviewed and considered
this Release and Waiver; that I fully understand all of its terms; and that I
voluntarily agree to them.
----------------
XXXXXXXXXXX
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EXHIBIT C
--------------------------------------- ---------------------------------------
AMERICA ONLINE LATIN AMERICA, INC.
ID: ▇▇-▇▇▇▇▇▇▇
Notice of Grant of Stock Options ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
And Option Agreement ▇▇▇▇▇ ▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
--------------------------------------- ---------------------------------------
OPTION NUMBER:
PLAN:
ID:
--------------------------------------- ---------------------------------------
Effective you have been granted a(n) Non-Qualified Stock Option to buy
shares of America Online Latin America, Inc. (the Company) stock at
$ per share.
The total option price of the shares granted is $
Shares in each period will become fully vested on the date shown.
Shares Vest Type Full Vest Expiration
----------------- ---------------- --------------- ----------------
On Vest Date
On Vest Date
On Vest Date
On Vest Date
CHANGE IN CONTROL Notwithstanding the vesting schedule set forth above and in
Section 9 of the optionee's Option Agreement, in addition to any other rights
the optionee may have under the Company's 2000 Stock Plan (the "Plan"),
including rights the optionee may have in the event of a Change in Control as
defined in the Plan, in the event of a Change in Control (as defined in the
Executive Retention Agreement between the optionee and the Company dated as of
the date hereof (the "Retention Agreement")), this option must either: (a) be
assumed by an acquiring entity in accordance with Paragraph 24B (a) of the Plan,
in which event this option will become fully exercisable if the optionee's
employment is terminated without Cause (as defined in the Retention Agreement)
or the optionee terminates his employment for Good Reason (as defied in the
Retention Agreement); (b) become fully exercisable for purposes of and prior to
the termination of the option pursuant to Paragraphs 24B(b) or (c) of the Plan;
or (c) otherwise become fully exercisable immediately prior to the Change in
Control (as defined in the Retention Agreement).
GOING PRIVATE EVENT Notwithstanding the vesting schedule set forth above, in the
event of a Going Private Event (as defined in the Retention Agreement), this
Option will become fully exercisable immediately prior to and for purposes of
the Going Private Event.
TERMINATION OF EMPLOYMENT Notwithstanding the vesting schedule set forth above
and the provisions of Section 4 of the optionee's Option Agreement with respect
to the exercisability of the option, in the event the optionee's employment is
terminated by the Company without Cause (as defined in the Retention Agreement)
or the Executive terminates his employment for Good Reason (as defined in the
Retention Agreement), this option will become fully exercisable as of the date
of the Notice of Termination ( as defined in the Retention Agreement), and will
remain outstanding during the Leave of Absence Period (as defined in the
Retention Agreement), which will be an approved leave of absence for purposes of
Paragraph 13(e) of the Plan.
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RETENTION AGREEMENT CONTROLS Notwithstanding Section 20 of the optionee's Option
Agreement, to the extent that there is any inconsistency between the terms of
this Stock Option Grant Notice (including the Option Agreement) and the terms of
the Retention Agreement, including without limitation, inconsistencies in the
definitions of "Cause" or "Disability", the provisions of the Retention
Agreement shall control and shall be deemed to be incorporated into this Stock
Option Grant Notice and the Option Agreement and made a part hereof.
--------------------------------------------------------------------------------
By your signature and the Company's signature below, you and the Company agree
that these options are granted under and governed by the terms and conditions of
the Retention Agreement, the Company's 2000 Stock Plan as amended and the Option
Agreement, all of which are incorporated by reference and made a part of this
document.
--------------------------------------------------------------------------------
---------------------------------- -------------------------------------------
America Online Latin America, Inc. Date
---------------------------------- -------------------------------------------
Date
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