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, 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 and the Company shall have a right to
the return of all Consideration paid to you pursuant to this Agreement,
together with interest thereon, and to cease furnishing to you any further
Consideration


 


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described
in this Agreement; provided that this right of return of such Consideration and
the cessation of payment of further Consideration is without prejudice to the
Released Parties’ other rights hereunder, including any right to obtain an
agreement and release of any and all claims against the Released Parties; and


 


(c)                                       You agree (i) that you will not bring
any lawsuits or claims of any kind against the Company, any of its related
entities or any Released Party; (ii) that you will not accept the benefits
of any lawsuits or claims of any kind brought on your behalf against the
Company, any of its related entities or any Released Party; and (iii) that
if you are nevertheless awarded any such benefits you will pay them to the
Company.


 


5.                                            The Company is providing you with the
benefits described in this Agreement solely to ease the impact of your
separation from employment with the Company. The fact that the Company is
offering these benefits to you should not be understood as nor is it intended
to be an admission that the Company, any of its related entities or any
Released Party has violated your rights (or the rights of anyone else) in any
manner whatsoever.


 


6.                                            You will not, unless (i) required by
law, or (ii) the information in question has been disclosed by the Company
in a proxy statement filed with the U.S. Securities and Exchange Commission,
disclose to anyone other than members of the Arlington Legal Group and the
Arlington Human Resources Group any information regarding the following:


 


(a)                                       Any information regarding the practices,
procedures, trade secrets, inventions, technology, customer lists, or product
marketing of the Company or any of its related entities or any Released Party.


 


(b)                                      The terms of this Agreement, the benefits
being paid under it or the fact of such payment, except that you may disclose
this information to your attorney, accountant or other professional advisor to
whom you must make the disclosure in order for them to render professional
services to you. You will instruct them, however, to maintain the
confidentiality of this information just as you must. In addition, you will not
make, or cause to be made, any statements, observations or opinions, or
communicate any information (whether oral or written) (collectively “Statements”)
including Statements to the press, media, Company employees, clients, customer,
contractors or any other party, that disparage or are likely in any way to harm
the reputation of the Company, any of its related entities or any Released
Party. Breach of this provision shall be considered material.


 


7.                                            In the event that you breach any of your
obligations under this Agreement, including but not limited to the provisions
of Sections 3, 4, 6, 8, 10, 11, 12, 13 or 14 of this Agreement, or as otherwise
imposed by law, the Company will be entitled to recover the benefits paid under
this Agreement and to obtain all other relief provided by law or equity.


 


8.                                            By executing this Agreement, you agree and
acknowledge that except for the payments, benefits and promises described in
this Agreement, you shall not to be entitled to any further payments, benefits,
or promises from the Company. This Agreement shall be governed by Virginia law
and you hereby submit to and agree that the exclusive jurisdiction for any
suit, action or proceeding involving this Agreement will be any federal or
state court located in Virginia. If any provision of this Agreement is deemed
to be unenforceable, it shall not affect the enforceability of the remaining
provisions of this Agreement. This document contains the entire agreement
between you and the Company concerning the subject matter contained herein.


 


9.                                            The parties acknowledge and agree that any
amount paid to you pursuant to this Agreement may at the Company’s sole
discretion be set off against any amount or sum for which the Company is (or at
any time


 


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may
be) held liable to pay you with respect to or in connection with the
relationship between you and the Company.


 


10.                                      You covenant and agree that you shall not
voluntarily cooperate with, encourage or instigate any third party, person or
entity in threatening, preparing, commencing or prosecuting any legal action or
proceeding against any Released Party by consulting or meeting with any such
third party, person or entity or any attorney or representative thereof, or
providing any assistance, information, documents, testimony or representation
to or for the benefit of any such third party, person or entity or any attorney
or representative thereof. Provided, however, that this paragraph shall not be
interpreted to limit your ability to respond to questions or otherwise provide
information to or cooperate with the Arlington Legal Group and the Arlington
Human Resources Group. Breach of this provision shall be considered material.


 


11.                                      Nothing contained in this Agreement shall be
deemed to preclude you from providing truthful testimony or information
pursuant to a valid court order or similar legal process; provided, however,
that prior to making any such disclosure, you will promptly notify the Company
of such request or requirement so that the Company, if it so chooses, will have
sufficient opportunity to seek to avoid or minimize the required disclosure
and/or to obtain an appropriate protective order or other appropriate relief.
In any such case, you will use your reasonable efforts to cooperate with the
Company in its efforts to avoid or minimize the required disclosure and/or to
obtain such protective order or other relief.


 


12.                                      You agree to provide reasonable cooperation
at mutually agreeable times and places to the Released Parties in connection
with matters with which you were involved, including, but not limited to, the
defense of any and all Claims, which are asserted by any person or entity other
than you concerning or related to any matter that arises out of events or
occurrences during your involvement in the business and affairs of the Company,
and you will be reimbursed for reasonable out of pocket expenses incurred in
connection therewith. Except as otherwise required pursuant to applicable law
or court order, or as permitted under Section 11, and in each such case, provided
that you comply with the provisions of Section 11, you further agree to
maintain in strict confidence any information or knowledge you have regarding
Claims against the Released Parties. You agree to communicate with any party
adverse to the Released Parties, or with a representative, agent or legal
counsel for any such Claims solely through legal counsel for the Released
Parties, although you may at your own expense retain your own counsel in
connection with any such matter.


 


13.                                      You agree that while you are receiving
severance payments from the Company pursuant to Section 3(a) above,
you will not (i) be employed by or provide services or advice to any
competitor of the Company or any Released Party or (ii) otherwise compete
with the Company or any Released Party. For avoidance of doubt the parties
hereto acknowledge and agree that this non-compete provision includes a
prohibition on you: (i) attempting to or actually hiring or contracting
for services from, or inducing or encouraging anyone else to hire or contract
for services from, any employees or contractors working for or at the Company;
or (ii) attempting to or actually inducing or encouraging any employees or
contractors working for or at the Company to leave the Company; in each case
without the prior approval of the Company.


 


14.                                      You acknowledge (i) that you have not
been forced or pressured in any manner whatsoever to sign this Agreement; (ii) that
you have agreed to all of its terms voluntarily; (iii) that you have read
this Agreement in its entirety and understand the terms of the Agreement; and (iv) that
you have been given at least twenty-one (21) days to consider all of its terms
and to consult with counsel of your choice. You may revoke your acceptance of
this Agreement by sending written notice of your intent to revoke your
acceptance within seven (7) days of your execution of this Agreement, to
the Company, with such written notice addressed to the Company at the following
address: 4300 Wilson Boulevard, Arlington, Virginia 22203. If you do not revoke
your acceptance, your acceptance and this Agreement will become effective on
the eighth


 


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day
after the date on which it is signed (the “Effective Date”). You further agree
that in the event that you revoke your acceptance of this Agreement prior to
the eighth (8th) day after execution of this Agreement, this Agreement and the
promises contained herein shall automatically be deemed null and void.


 


To
accept this Agreement, please date and sign this document and return it to me.
An extra copy for your files is enclosed. We wish you success in your future
endeavors.


 


Very
truly yours,


 


The AES Corporation


 


	
  By:

  	
  

  
	
   

  	
  Name:

  	
  Paul
  Hanrahan

  
	
   

  	
  Title:

  	
  President
  and Chief Executive Officer

  



 


BY SIGNING THIS AGREEMENT, I ACKNOWLEDGE (i) THAT I HAVE
NOT BEEN FORCED OR PRESSURED IN ANY MANNER WHATSOEVER TO SIGN THIS AGREEMENT; (ii) THAT
I HAVE HAD AT LEAST 21 DAYS TO CONSIDER ALL OF THE TERMS OF THIS AGREEMENT WITH
COUNSEL OF MY CHOICE; (iii) THAT I HAVE READ THIS AGREEMENT IN ITS
ENTIRETY AND UNDERSTAND THE TERMS OF THE AGREEMENT; AND (iv) THAT I
VOLUNTARILY AGREE TO THEM. I FURTHER UNDERSTAND THAT I MAY REVOKE MY
ACCEPTANCE OF THIS AGREEMENT BY SENDING WRITTEN NOTICE OF MY INTENT TO REVOKE
MY ACCEPTANCE ADDRESSED TO THE COMPANY AT THE FOLLOWING ADDRESS: 4300 WILSON
BOULEVARD, ARLINGTON, VIRGINIA, 22203 WITHIN SEVEN DAYS AFTER THIS AGREEMENT
HAS BEEN EXECUTED AND RETURNED BY ME. IF I HAVE NOT REVOKED MY ACCEPTANCE, THIS
AGREEMENT WILL BECOME EFFECTIVE ON THE EIGHTH DAY AFTER IT IS EXECUTED AND
RETURNED TO THE COMPANY (THE “EFFECTIVE DATE”).


 


	
  By:

  	
  

  
	
   

  	
  William
  Luraschi

  



 


Agreed
to this 14th day of
May 2008


 


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