Delaware
Delaware
|
|
001-33139
001-07541
|
|
20-3530539
13-1938568
|
(State of Incorporation)
|
|
(Commission File Number)
|
|
(I.R.S Employer Identification No.)
|
|
|
|
|
|
|
|
999 Vanderbilt Beach Road, 3rd Floor
|
|
|
|
|
Naples, Florida 34108
|
|
|
|
|
999 Vanderbilt Beach Road, 3rd Floor
|
|
|
|
|
Naples, Florida 34108
|
|
|
|
|
(Address of principal executive offices, including zip code)
|
|
|
|
|
|
|
|
|
|
(239) 552-5800
|
|
|
|
|
(239) 552-5800
|
|
|
|
|
(Registrant's telephone number, including area code)
|
|
|
Exhibit
|
|
Description
|
|
|
|
10.1
|
|
Employment Agreement, dated as of November 21, 2014, between Hertz Global Holdings, Inc. and John P. Tague.
|
10.2
|
|
Change in Control Severance Agreement, dated as of November 21, 2014, between Hertz Global Holdings, Inc. and John P. Tague.
|
|
HERTZ GLOBAL HOLDINGS, INC.
THE HERTZ CORPORATION
|
|
|
(Registrant)
|
|
|
|
|
|
|
|
|
By:
|
/s/ Thomas C. Kennedy
|
|
Name:
|
Thomas C. Kennedy
|
|
Title:
|
Senior Executive Vice President and Chief Financial Officer
|
|
|
|
Exhibit
|
|
Description
|
|
|
|
10.1
|
|
Employment Agreement, dated as of November 21, 2014, between Hertz Global Holdings, Inc. and John P. Tague.
|
10.2
|
|
Change in Control Severance Agreement, dated as of November 21, 2014, between Hertz Global Holdings, Inc. and John P. Tague.
|
|
|
|
|
HERTZ GLOBAL HOLDINGS, INC.
|
|
|
|
By: /s/ Linda Fayne Levinson
|
|
Name: Linda Fayne Levinson
|
|
Title: Independent Non-Executive Chair of the Board of Directors
|
|
|
|
|
|
John P. Tague
|
|
|
|
/s/ John P. Tague
|
|
|
|
|
|
(i) Good Leaver Termination. If Participant's employment with the Company terminates due to a Good Leaver Termination, subject to Participant's compliance with the terms of the Employment Agreement (including execution of the Release), a number of Options equal to the product (rounded to the nearest whole share) of (A) the number of Options subject to this Agreement, multiplied by (B) a fraction, (1) the numerator of which is the number of days elapsed between the Grant Date and the date of Participant's termination and (2) the denominator of which is 1136, being the number of days between the Grant Date and December 31, 2017 shall vest; provided, however, the foregoing clause shall apply only in the event of a Good Leaver Termination (I) prior to a determination by the Board that the Business Plan Goal has not been attained or (II) if the Board has determined that the Business Plan Goal has been attained, prior to January 1, 2016.
|
(1)
|
Any Options that vest pursuant to this Section 3(b)(i) or that are otherwise vested at the time of a Good Leaver Termination on or prior to December 31, 2017 shall remain outstanding until the first to occur of (A) the 90th day following Participant's termination, or, if later, the 90th day following expiration of any blackout period in effect with respect to such Options (for the avoidance of doubt, including any period during which the Form S-8 on file with respect to the Plan is not effective), (B) the Normal Termination Date and (C) the cancellation or termination of the Options pursuant to Section 6(a), after which any unexercised Options that vested pursuant to this Section 3(b)(i) shall immediately terminate.
|
(2)
|
If Participant's employment terminates due to a Good Leaver Termination after December 31, 2017, any Options that are vested at such time shall remain outstanding until the first to occur of (A) the Normal Termination Date and (B) the cancellation or termination of the Options pursuant to Section 6(a), after which any unexercised Options shall immediately terminate.
|
(3)
|
Any Options that are unvested at the time of Participant's Good Leaver Termination and that do not vest pursuant to this Section 3(b)(i) shall be immediately forfeited and canceled, effective as of the date of Participant's termination.
|
|
(ii) Termination for Cause. If Participant's employment terminates for Cause, all Options, whether vested or unvested, shall be immediately forfeited and canceled, effective as of the date of Participant's termination.
|
(iii) Termination for Any Other Reason. If Participant's employment with the Company terminates for any reason other than a Good Leaver Termination in accordance with Section 3(b)(i) or Cause in accordance with Section 3(b)(ii), any unvested Options held by Participant shall immediately be forfeited and canceled as of the date of termination. |
(1)
|
If Participant's employment with the Company is terminated by Participant on or prior to December 31, 2017 other than by reason of a Good Leaver Termination, all vested Options shall remain exercisable until the first to occur of (A) the 30th day following the effective date of Participant's termination of employment, or, if later, the 30th day following expiration of any blackout period in effect with respect to such Options (for the avoidance of doubt, including any period during which the Form S-8 on file with respect to the Plan is not effective), (B) the Normal Termination Date and (C) the cancellation or termination of the Options pursuant to Section 6(a), after which any unexercised Options shall immediately be forfeited and canceled.
|
(2)
|
If Participant's employment with the Company is terminated by Participant after December 31, 2017 other than by reason of a Good Leaver Termination, all vested Options shall remain exercisable until the first to occur of (A) the Normal Termination Date and (B) the cancellation or termination of the Options pursuant to Section 6(a), after which any unexercised Options shall immediately be forfeited and canceled.
|
|
(i) that Participant forfeit some or all of the Options subject to this Agreement held by Participant at the time of such restatement;
|
(ii) that Participant forfeit (or pay to the Company) some or all of the shares of Common Stock or cash held by Participant at the time of such restatement in respect of the Options that have been exercised during the twelve-month period prior to the financial restatement (or such other period as determined by the Committee), reduced by a number of shares with a Fair Market Value equal to the aggregate exercise price paid by Participant; and | |
(iii) that Participant pay to the Company in cash all or a portion of the proceeds that Participant realized from the sale of shares of Common |
|
Stock subject to any Options that had been exercised by Participant within the period commencing twelve months prior to the financial restatement (or such other period as determined by the Committee), reduced by an amount of cash equal to the aggregate exercise price paid by Participant.
|
|
(a) In General. In the event of a Change in Control, the Performance Goals shall be deemed achieved and any unvested Options shall vest and become exercisable, provided that the Committee (as constituted immediately prior to the Change in Control) may determine that all then-outstanding Options (whether vested or unvested) shall be canceled in exchange for a payment having a value equal to the excess, if any, of (i) the product of the Change in Control Price multiplied by the aggregate number of shares covered by all such Options immediately prior to the Change in Control over (ii) the aggregate Option Price for all such shares, to be paid as soon as reasonably practicable, but in no event later than 30 days following the Change in Control.
|
|
(b) Termination. Notwithstanding Section 6(a), in the event of a Change in Control, the Committee may, in its discretion, terminate any outstanding Options if either (i) the Company provides holders of such Options with reasonable advance notice to exercise their outstanding and unexercised Options, or (ii) the Committee reasonably determines that the Change in Control Price is equal to or less than the exercise price for such Options.
|
|
(c) Alternative Awards. Notwithstanding Section 6(a), no cancellation, termination, acceleration of exercisability or vesting, or settlement or other payment shall occur with respect to the Options if the Committee (as constituted immediately prior to the Change in Control) reasonably determines, in good faith, prior to the Change in Control that the Options shall be honored or assumed or new rights substituted therefor by an Alternative Award, in accordance with the terms of Section 9.2 of the Plan.
|
|
(i) if to the Company, to it at:
|
|
|
|
999 Vanderbilt Beach Road, 3rd Floor
Naples, Florida 34108
Attention: General Counsel Facsimile: 866-999-3798 |
|
|
|
(ii) if to Participant, to Participant at his or her most recent address as shown on the books and records of the Company or Subsidiary employing Participant.
|
|
(i) Waiver. Any party hereto or beneficiary hereof may by written notice to the other parties (A) extend the time for the performance of any of the obligations or other actions of the other parties under this Agreement, (B) waive compliance with any of the conditions or covenants of the other parties contained in this Agreement and (C) waive or modify performance of any of the obligations of the other parties under this Agreement. Except as provided in the preceding sentence, no action taken pursuant to this Agreement, including, without limitation, any investigation by or on behalf of any party or beneficiary, shall be deemed to constitute a waiver by the party or beneficiary taking such action of compliance with any representations, warranties, covenants or agreements contained herein. The waiver by any party hereto or beneficiary hereof of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any preceding or succeeding breach and no failure by a party or beneficiary to exercise any right or privilege hereunder shall be deemed a waiver of such party's or beneficiary's rights or privileges hereunder or shall be deemed a waiver of such party's or beneficiary's rights to exercise the same at any subsequent time or times hereunder.
|
|
|
|
(ii) Amendment. This Agreement may be amended from time to time by the Committee in its discretion; provided, however, that this Agreement may not be modified in a manner that would have a materially adverse effect on the Options as determined in the discretion of the Committee, except as provided in the Plan, or in any other written document signed by Participant and the Company. This Agreement may not be amended, modified or supplemented orally.
|
HERTZ GLOBAL HOLDINGS, INC.
|
|
|
|
By:
|
/s/ Linda Fayne Levinson
|
|
Name: Linda Fayne Levinson
|
|
Title: Independent Non-Executive
Chair of the Board of Directors |
PARTICIPANT
|
|
John P. Tague
|
|
/s/ John P. Tague |
Total Number of shares
of Common Stock for the Purchase of Which Options have been Granted |
Option Price
|
500,000 Shares
|
$22.75
|
|
(a) Confirmation of Grant. The Company hereby evidences and confirms, effective as of the date hereof, its grant to Participant of Options to purchase the number of shares of Common Stock specified on the signature page hereof. The Options are not intended to be incentive stock options under the Code. This Agreement is entered into pursuant to, and the terms of the Options are subject to, the terms of the Plan. If there is any inconsistency between this Agreement and the terms of the Plan, the terms of the Plan shall govern.
|
|
|
|
(b) Option Price. Each share covered by an Option shall have the Option Price specified on the signature page hereof. The Option Price per share of Common Stock is equal to $22.75, being the closing price of a share of Common Stock on the New York Stock Exchange on November 20, 2014.
|
|
(a) Vesting Generally. Except as otherwise provided in Sections 2(b), 3, or 6(a) of this Agreement, the Options shall become vested on December 31, 2017, subject to (i) the continuous employment of Participant with the Company until such date and (ii) the satisfaction of a performance goal related to revenue efficiency metrics for the period from January 1, 2015 to December 31, 2017 (the "Performance Goal"). The number of Options that vest on December 31, 2017 shall be determined in accordance with the following schedule, based on the Committee's determination of the extent to which the Performance Goal was satisfied:
|
Percentage of Target Performance Goal Satisfied
|
Percentage of Options that Vest
|
Less than 85%
|
0%
|
85%
|
50%
|
85% to 100%
|
Between 50% and 100% based on straight-line interpolation
|
Above 100%
|
100%
|
|
As soon as administratively feasible after December 31, 2017, the Committee shall certify, in writing, whether or not, and to what extent, the Performance Goal has been achieved. Any Options that do not vest pursuant to the foregoing schedule shall be immediately forfeited and canceled as of the Committee's certification.
|
|
(b) Performance Goal Determination. The Performance Goal shall be determined by the Committee with the input of Participant, and communicated to Participant, no later than March 31, 2015.
|
(c) Discretionary Acceleration. The Committee, in its sole discretion, may accelerate the vesting or exercisability of all or a portion of the Options, at any time and from time to time. | |
(d) Exercise. Subject to Section 4, following vesting in accordance with the provisions of this Agreement and the Committee's certification of the satisfaction of the Performance Goal (unless waived or deemed satisfied), the Options may be exercised at any time and from time to time prior to the date the Options terminate pursuant to Section 3. The Options may only be exercised with respect to whole shares of Common Stock and must be exercised in accordance with Section 4. |
|
(a) Normal Termination Date. Unless earlier terminated pursuant to Section 3(b) or Section 6, the Options shall terminate on June 30, 2020 (the "Normal Termination Date"), if not exercised prior to such date.
|
(b) Termination of Employment.
|
|
(i) Good Leaver Termination. If Participant's employment with the Company terminates due to a Good Leaver Termination on or prior to December 31, 2017, subject to Participant's compliance with the terms of the Employment Agreement (including execution of the Release), the Performance Goal shall be deemed satisfied at 100% of target and a number of Options equal to the product (rounded to the nearest whole share) of (a) the number of Options subject to this Agreement, multiplied by (b) a fraction, (1) the numerator of which is the number of days elapsed between the Grant Date and the date of Participant's termination and (2) the denominator of which is 1136, being the number of days between the Grant Date and December 31, 2017, shall vest.
|
(1)
|
|
Any Options that vest pursuant to this Section 3(b)(i) or that are otherwise vested at the time of a Good Leaver Termination on or prior to December 31, 2017 shall remain outstanding until the first to occur of (A) the 90th day following Participant's termination, or, if later, the 90th day following expiration of any blackout period in effect with respect to such Options (for the avoidance of doubt, including any period during which the Form S-8 on file with respect to the Plan is not effective), (B) the Normal Termination Date and (C) the cancellation or termination of the Options pursuant to Section 6(a), after which any unexercised Options that vested pursuant to this Section 3(b)(i) shall immediately terminate.
|
|
|
|
(2) | If Participant's employment terminates due to a Good Leaver Termination after December 31, 2017, any Options that are vested at such time shall remain outstanding until the first to occur of (A) the Normal Termination Date and (B) the cancellation or termination of the Options pursuant to Section 6(a), after which any unexercised Options shall immediately terminate. | |
(3)
|
|
Any Options that are unvested at the time of Participant's Good Leaver Termination and that do not vest pursuant to this Section 3(b)(i) shall be immediately forfeited and canceled, effective as of the date of Participant's termination.
|
|
(ii) Termination for Cause. If Participant's employment terminates for Cause, all Options, whether vested or unvested, shall be immediately forfeited and canceled, effective as of the date of Participant's termination.
|
(iii) Termination for Any Other Reason. If Participant's employment with the Company terminates for any reason other than a Good Leaver Termination in accordance with Section 3(b)(i) or Cause in accordance with Section 3(b)(ii), any unvested Options held by Participant shall immediately be forfeited and canceled as of the date of termination. |
(1)
|
|
If Participant's employment with the Company is terminated by Participant on or prior to December 31, 2017 other than by reason of a Good Leaver Termination, all vested Options shall remain exercisable until the first to occur of (A) the 30th day following the effective date of Participant's termination of employment, or, if later, the 30th day following expiration of any blackout period in effect with respect to such Options (for the avoidance of doubt, including any period during which the Form S-8 on file with respect to the Plan is not effective), (B) the Normal Termination Date and (C) the cancellation or termination of the Options pursuant to Section 6(a), after which any unexercised Options shall immediately be forfeited and canceled.
|
(2)
|
|
If Participant's employment with the Company is terminated by Participant after December 31, 2017 other than by reason of a Good Leaver Termination, all vested Options shall remain exercisable until the first to occur of (A) the Normal Termination Date and (B) the cancellation or termination of the Options pursuant to Section 6(a), after which any unexercised Options shall immediately be forfeited and canceled.
|
|
(a) General. Subject to such reasonable administrative regulations as the Committee may adopt from time to time, the exercise of vested Options by Participant shall be pursuant to procedures established by the Company from time to time and shall include Participant specifying the proposed date on which Participant desires to exercise a vested Option (the "Exercise Date"), the number of whole shares with respect to which the Options are being exercised (the "Exercise Shares") and the aggregate Option Price for such Exercise Shares (the "Exercise Price"), or such other or different requirements as may be specified by the Company. Unless otherwise determined by the Committee, (i) on or before the Exercise Date Participant shall deliver to the Company full payment for the Exercise Shares in United States dollars in cash, or cash equivalents satisfactory to the Company, in an amount equal to the Exercise Price plus (if applicable) any required withholding taxes or other similar taxes, charges or fees, or, pursuant to a broker-assisted exercise program established by the Company, Participant may exercise vested Options by an exercise and sell procedure (cashless exercise) in which the Exercise Price (together with any required withholding taxes or other similar taxes, charges or fees) is deducted from the proceeds of the exercise of an Option and (ii) the Company shall register the issuance of the Exercise Shares on its records (or direct such issuance to be registered by the Company's transfer agent). The Company may require Participant to furnish or execute such other documents as the Company shall reasonably deem necessary (i) to evidence such exercise or (ii) to comply with or satisfy the requirements of the Securities Act, applicable state or non-U.S. securities laws or any other law.
|
(b) Restrictions on Exercise. Notwithstanding any other provision of this Agreement, the Options may not be exercised in whole or in part, (i)(A) unless all requisite approvals and consents of any governmental authority of any kind shall have been secured, (B) unless the purchase of the Exercise Shares shall be exempt from registration under applicable U.S. federal and state securities laws, and applicable non-U.S. securities laws, or the Exercise Shares shall have been registered under such laws, and (C) unless all applicable U.S. federal, state and local and non-U.S. tax withholding requirements shall have been satisfied or (ii) if such exercise would result in a violation of the terms or provisions of or a default or an event of default under, any of the financing or credit agreements of the Company or any Subsidiary. The Company shall use its commercially reasonable efforts to obtain any consents or approvals referred to in clause (i)(A) of the preceding sentence, but shall otherwise have no obligations to take any steps to prevent or remove any impediment to exercise described in such sentence.
|
|
(c) Issuance of Shares. The shares of Common Stock issued upon exercise of the Options shall be registered in Participant's name, or, if applicable, in the names of Participant's heirs or estate. In the Company's discretion, such shares may be issued either in certificated form or in uncertificated, book entry form. The certificate or book entry account shall bear such restrictive legends or restrictions as the Company, in its sole discretion, shall require. If delivered in certificate form, the Company may deliver a share certificate to Participant, or deliver shares electronically or in certificate form to Participant's designated broker on Participant's behalf. If Participant is deceased (or if Disabled and if necessary) at the time that a delivery of share certificates is to be made, the certificates will be delivered to Participant's estate, executor, administrator, legally authorized guardian or personal representative (as applicable).
|
(d) Other. The Company may postpone the issuance and delivery of any shares of Common Stock provided for under this Agreement for so long as the Company determines to be necessary or advisable to satisfy the following: (1) the completion or amendment of any registration of such shares or satisfaction of any exemption from registration under any securities law, rule, or regulation; (2) compliance with any requests for representations; and (3) receipt of proof satisfactory to the Company that a person seeking such shares on Participant's behalf upon Participant's Disability (if necessary), or upon Participant's estate's behalf after the death of Participant, is appropriately authorized.
|
|
(e) Wrongful Conduct. Notwithstanding anything in the Plan or this Agreement to the contrary, if, during the Covered Period, Participant engages in Wrongful Conduct, then any unexercised Options, whether vested or unvested, shall automatically terminate and be canceled upon the date on which Participant first engaged in such Wrongful Conduct. If Participant engages in Wrongful Conduct or if Participant's employment is terminated for Cause, Participant shall pay to the Company in cash any Option/SAR Financial Gain Participant realized from exercising all or a portion of the Options within the Wrongful Conduct Period. By entering into this Agreement, Participant hereby consents to and authorizes the Company and the Subsidiaries to deduct from any amounts payable by such entities to Participant any amounts Participant owes to the Company under this Section 4(e) to the extent permitted by law. This right of set-off is in addition to any other remedies the Company may have against Participant for Participant's breach of this Section 4(e). Participant's obligations under this Section 4(e) shall be cumulative (but not duplicative) of any similar obligations Participant has under the Plan, this Agreement, any Company policy, standard or code (including, without limitation, the Company's Standards of Business Conduct), or any other agreement with the Company or any Subsidiary. | |
(f) Financial Restatements. In the event that Participant commits misconduct, fraud or gross negligence (whether or not such misconduct, fraud or gross negligence is deemed or could be deemed to be an event constituting Cause) and as a result of, or in connection with, such misconduct, fraud or gross negligence the Company restates any of its financial statements, then the Committee may require any or all of the following. |
|
(i) that Participant forfeit some or all of the Options subject to this Agreement held by Participant at the time of such restatement;
|
(ii) that Participant forfeit (or pay to the Company) some or all of the shares of Common Stock or cash held by Participant at the time of such restatement in respect of the Options that have been exercised during the twelve-month period prior to the financial restatement (or such other period as determined by the Committee), reduced by a number of shares with a Fair Market Value equal to the aggregate exercise price paid by Participant; and | |
(iii) that Participant pay to the Company in cash all or a portion of the proceeds that Participant realized from the sale of shares of Common Stock subject to any Options that had been exercised by Participant within the period commencing twelve months prior to the financial restatement (or such other period as determined by the Committee), reduced by an amount of cash equal to the aggregate exercise price paid by Participant. |
|
(a) In General. In the event of a Change in Control, the Performance Goal shall be deemed satisfied at 100% of target and any unvested Options shall vest and become exercisable, provided that the Committee (as constituted immediately prior to the Change in Control) may determine that all then-outstanding Options (whether vested or unvested) shall be canceled in exchange for a payment having a value equal to the excess, if any, of (i) the product of the Change in Control Price multiplied by the aggregate number of shares covered by all such Options immediately prior to the Change in Control over (ii) the aggregate Option Price for all such shares, to be paid as soon as reasonably practicable, but in no event later than 30 days following the Change in Control.
|
(b) Termination. Notwithstanding Section 6(a), in the event of a Change in Control, the Committee may, in its discretion, terminate any outstanding Options if either
|
(i) the Company provides holders of such Options with reasonable advance notice to exercise their outstanding and unexercised Options, or (ii) the Committee reasonably determines that the Change in Control Price is equal to or less than the exercise price for such Options.
|
|
(c) Alternative Awards. Notwithstanding Section 6(a), no cancellation, termination, acceleration of exercisability or vesting, or settlement or other payment shall occur with respect to the Options if the Committee (as constituted immediately prior to the Change in Control) reasonably determines, in good faith, prior to the Change in Control that the Options shall be honored or assumed or new rights substituted therefor by an Alternative Award, in accordance with the terms of Section 9.2 of the Plan. |
|
(a) Withholding. The Company or one of its Subsidiaries may require Participant to remit to the Company an amount in cash sufficient to satisfy any applicable U.S. federal, state and local and non-U.S. tax withholding or other similar charges or fees that may arise in connection with the grant, vesting, exercise or purchase of the Options.
|
(b) Authorization to Share Personal Data. Participant authorizes any Affiliate of the Company that employs Participant or that otherwise has or lawfully obtains personal data relating to Participant to divulge or transfer such personal data to the Company or to a third party, in each case in any jurisdiction, if and to the extent appropriate in connection with this Agreement or the administration of the Plan.
|
|
(c) No Rights as Stockholder; No Voting Rights. Participant shall have no rights as a stockholder of the Company with respect to any shares of Common Stock covered by the Options until the exercise of the Options and delivery of the Common Stock. No adjustment shall be made for dividends or other rights for which the record date is prior to the delivery of the Common Stock. | |
(d) No Right to Continued Employment. Nothing in this Agreement shall be deemed to confer on Participant any right to continue in the employ of the Company or any Subsidiary, or to interfere with or limit in any way the right of the Company or any Subsidiary to terminate such employment at any time (regardless of whether such termination results in (1) the failure of any Award to vest; (2) the forfeiture of any unvested or vested portion of any Award; and/or (3) any other adverse effect on the individual's interests under the Plan). Nothing in the Plan or this Agreement shall confer on Participant the right to receive any future Awards under the Plan. |
|
(e) Non-Transferability of Options. The Options may be exercised only by Participant (or, if Participant is Disabled and if necessary, Participant's legally authorized guardian or personal representative) during Participant's lifetime. The Options are not assignable or transferable, in whole or in part, and they may not, directly or indirectly, be offered, transferred, sold, pledged, assigned, alienated, hypothecated or otherwise disposed of or encumbered (including, but not limited to, by gift, operation of law or otherwise) other than by will or by the laws of descent and distribution to the estate of Participant upon Participant's death or with the Company's consent. The Company will not be required to recognize on its books any action taken in contravention of these restrictions.
|
(f) Notices. All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given if delivered personally or sent by certified or express mail, return receipt requested, postage prepaid, or by any recognized international equivalent of such delivery, to the Company or Participant, as the case may be, at the following addresses or to such other address as the Company or Participant, as the case may be, shall specify by notice to the other
|
(i)
|
if to the Company, to it at:
|
|
999 Vanderbilt Beach Road, 3rd Floor Naples, Florida 34108 Attention: General Counsel Facsimile: 866-999-3798 |
||
(ii) | if to Participant, to Participant at his or her most recent address as shown on the books and records of the Company or Subsidiary employing Participant. |
|
(g) Binding Effect; Benefits. This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended or shall be construed to give any person other than the parties to this Agreement or their respective successors or assigns any legal or equitable right, remedy or claim under or in respect of any agreement or any provision contained herein.
|
(h) Waiver; Amendment
|
|
(i) Waiver. Any party hereto or beneficiary hereof may by written notice to the other parties (A) extend the time for the performance of any of the obligations or other actions of the other parties under this Agreement, (B) waive compliance with any of the conditions or covenants of the other parties contained in this Agreement and (C) waive or modify performance of any of the obligations of the other parties under this Agreement. Except as provided in the preceding sentence, no action taken pursuant to this Agreement, including, without
|
|
limitation, any investigation by or on behalf of any party or beneficiary, shall be deemed to constitute a waiver by the party or beneficiary taking such action of compliance with any representations, warranties, covenants or agreements contained herein. The waiver by any party hereto or beneficiary hereof of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any preceding or succeeding breach and no failure by a party or beneficiary to exercise any right or privilege hereunder shall be deemed a waiver of such party's or beneficiary's rights or privileges hereunder or shall be deemed a waiver of such party's or beneficiary's rights to exercise the same at any subsequent time or times hereunder.
|
(ii) Amendment. This Agreement may be amended from time to time by the Committee in its discretion; provided, however, that this Agreement may not be modified in a manner that would have a materially adverse effect on the Options as determined in the discretion of the Committee, except as provided in the Plan, or in any other written document signed by Participant and the Company. This Agreement may not be amended, modified or supplemented orally. |
|
(i) Assignability. Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by the Company or Participant without the prior written consent of the other party.
|
(j) Interpretation. The Committee shall have full power and discretion to construe and interpret the Plan (and any rules and regulations issued thereunder) and this Award. Any determination or interpretation by the Committee under or pursuant to the Plan or this Award shall be final and binding and conclusive on all persons affected hereby.
|
|
(k) Limitation on Rights; No Right to Future Grants; Extraordinary Item of Compensation. By entering into this Agreement and accepting the Options evidenced hereby, Participant acknowledges: (i) that the Plan is discretionary in nature and may be suspended or terminated by the Company at any time; (ii) that the Award does not create any contractual or other right to receive future grants of Awards; (iii) that participation in the Plan is voluntary; (iv) that the value of the Options is not part of normal or expected compensation for purposes of calculating any severance, resignation, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments; and (v) that the future value of the Common Stock is unknown and cannot be predicted with certainty. | |
(l) Consent to Electronic Delivery. By entering into this Agreement and accepting the Options evidenced hereby, Participant hereby consents to the delivery of information (including, without limitation, information required to be delivered to Participant pursuant to applicable securities laws) regarding the Company and the Subsidiaries, the Plan, this Agreement and the Options via Company web site or other electronic delivery. |
|
(m) Compensation Recovery Policy. Without limiting any other provision of this Agreement, the Options granted hereunder shall be subject to the Compensation Recovery Policy under the Company's Standards of Business Conduct (as amended from time to time, and including any successor or replacement policy or standard) to the extent applicable.
|
(n) Company Rights. The existence of the Options does not affect in any way the right or power of the Company or its stockholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the Company's capital structure or its business, including that of its Affiliates, or any merger or consolidation of the Company or any Affiliate, or any issue of bonds, debentures, preferred or other stocks with preference ahead of or convertible into, or otherwise affecting the Common Stock or the rights thereof, or the dissolution or liquidation of the Company or any Affiliate, or any sale or transfer of all or any part of the Company's or any Affiliate's assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise.
|
|
(o) Severability. If a court of competent jurisdiction determines that any portion of this Agreement is in violation of any statute or public policy, then only the portions of this Agreement which violate such statute or public policy shall be stricken, and all portions of this Agreement which do not violate any statute or public policy shall continue in full force and effect. Further, it is the parties' intent that any court order striking any portion of this Agreement should modify the terms as narrowly as possible to give as much effect as possible to the intentions of the parties under this Agreement. | |
(p) Further Assurances. Participant agrees to use his or her reasonable and diligent best efforts to proceed promptly with the transactions contemplated herein, to fulfill the conditions precedent for Participant's benefit or to cause the same to be fulfilled and to execute such further documents and other papers and perform such further acts as may be reasonably required or desirable to carry out the provisions hereof and the transactions contemplated herein. | |
(q) Applicable Law. This Agreement shall be governed by and construed in accordance with the law of the State of Delaware regardless of the application of rules of conflict of law that would apply the laws of any other jurisdiction. | |
(r) Section and Other Headings, etc. The section and other headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. | |
(s) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument |
HERTZ GLOBAL HOLDINGS, INC.
|
|
|
|
By:
|
/s/ Linda Fayne Levinson
|
|
Name: Linda Fayne Levinson
|
|
Title: Independent Non-Executive
Chair of the Board of Directors |
PARTICIPANT
|
|
John P. Tague
|
|
/s/ John P. Tague |
Total Number of shares
of Common Stock for the Purchase of Which Options have been Granted |
Option Price
|
500,000 Shares
|
$22.75
|
Percentage of Target Performance Goal Satisfied
|
Percentage of Target Number of Performance Stock Units on Which Restrictions Period Lapses
|
Less than 85%
|
0%
|
85%
|
50%
|
85% to 115%
|
Between 50% and 150% based on straight-line interpolation
|
Above 115%
|
150%
|
|
(i) Good Leaver Termination. If Participant's employment with the Company terminates due to a Good Leaver Termination on or prior to December 31, 2017, subject to Participant's compliance with the terms of the Employment Agreement (including execution of the Release), the Performance Goal shall be deemed satisfied at 100% of target and the Restriction Period shall lapse on a number of Performance Stock Units equal to the product (rounded to the nearest whole share) of (a) the target number of Performance Stock Units subject to this Agreement, multiplied by (b) a fraction, (1) the numerator of which is the number of days elapsed between the Grant Date and the date of Participant's termination and (2) the denominator of which is 1136, being the number of days between the Grant Date and December 31, 2017.
|
(ii) Any Other Reason. If Participant's employment terminates (whether by Participant or by the Company or a Subsidiary) for any reason other than a Good Leaver Termination, any outstanding Performance Stock Units shall immediately be forfeited and canceled effective as of the date of Participant's termination. |
|
(i) In the event of a Change in Control, the Performance Goal shall be deemed satisfied at 100% of target and the Restriction Period applicable to any outstanding Performance Stock Units subject to this Agreement shall lapse immediately prior to such Change in Control and shall be settled as set forth in Section 3.
|
(ii) Notwithstanding Section 2(d)(i), no cancellation, termination, lapse of Restriction Period or settlement or other payment shall occur with respect to the Performance Stock Units if the Committee (as constituted immediately prior to the Change in Control) reasonably determines, in good faith, prior to the Change in Control that the Performance Stock Units shall be honored or assumed or new rights substituted therefor by an Alternative Award, in accordance with the terms of Section 9.2 of the Plan. | |
(iii) For purposes of this Agreement, and notwithstanding anything in the Plan to the contrary, "Change in Control" has the meaning set forth in the Change in Control Severance Agreement between the Company and Participant, dated as of November 21, 2014. |
(a) Certification. Promptly following December 31, 2017, the Committee shall certify, in writing, whether or not, and to what extent, the Performance Goal has been achieved. Performance Stock Units that cease to be subject to the Restriction Period in accordance with Section 2(a) and this Section 3(a) shall be settled as provided in Section 3(b).
|
(b) Settlement. Subject to Section 9(g), not later than 60 days after the lapse of the Restriction Period with respect to any Performance Stock Units (the "Settlement Deadline"), the Company shall issue to Participant one share of Common Stock underlying each Performance Stock Unit as to which the Restriction Period has lapsed or, if the Committee so determines in its sole discretion, an amount in cash equal to the Fair Market Value of such shares of Common Stock or any combination of shares of Common Stock and cash having an aggregate Fair Market Value equal to such shares of Common Stock; provided, however, as contemplated by Section 5(e)(ii) of the Employment Agreement, in the event of a dispute between Participant and the Company that delays the execution of the Release, except as otherwise required by Section 409A of the Code (including Treasury Regulation 1.409A-3(g)), the occurrence of the Settlement Deadline shall be tolled and extended by any period of bona fide dispute extending past the Settlement Deadline. Upon issuance, such shares of Common Stock may be sold, transferred, pledged, assigned or otherwise alienated or hypothecated in compliance with all applicable law, this Agreement and any other agreement to which such shares are subject. Participant's settlement rights pursuant to this Agreement shall be no greater than the right of any unsecured general creditor of the Company. |
(a) that Participant forfeit some or all of the Performance Stock Units subject to this Agreement held by Participant at the time of such restatement,
|
(b) that Participant forfeit (or pay to the Company) some or all of the cash or the shares of Common Stock held by Participant at the time of such restatement that had been received in settlement of Performance Stock Units subject to this Agreement during the twelve-month period prior to the financial restatement (or such other period as determined by the Committee), and |
(c) that Participant pay to the Company in cash all or a portion of the proceeds that Participant realized from the sale of shares of Common Stock that had been received in settlement of any Performance Stock Units subject to this Agreement within the period commencing twelve months prior to the financial restatement (or such other period as determined by the Committee). |
(a) Notwithstanding any other provision of this Agreement, Participant may not sell the shares of Common Stock acquired upon settlement of the Performance Stock Units unless such shares are registered under the Securities Act of 1933, as amended (the "Securities Act"), or, if such shares are not then so registered, such sale would be exempt from the registration requirements of the Securities Act. The sale of such shares must also comply with other applicable laws and regulations governing the Common Stock and Participant may not sell the shares of Common Stock if the Company determines that such sale would not be in material compliance with such laws and regulations.
|
(b) The shares of Common Stock issued in settlement of the Performance Stock Units shall be registered in Participant's name, or, if applicable, in the names of Participant's heirs or estate. In the Company's discretion, such shares may be issued either in certificated form or in uncertificated, book entry form. The certificate or book entry account shall bear such restrictive legends or restrictions as the Company, in its sole discretion, shall require. If delivered in certificate form, the Company may deliver a share certificate to Participant, or deliver shares electronically or in certificate form to Participant's designated broker on Participant's behalf. If Participant is deceased (or if Disabled (within the meaning used in the Employment Agreement) and if necessary) at the time that a delivery of share certificates is to be made, the certificates will be delivered to Participant's estate, executor, administrator, legally authorized guardian or personal representative (as applicable). |
(c) The grant of the Performance Stock Units and issuance of shares of Common Stock upon settlement of the Performance Stock Units will be subject to and in compliance with all applicable requirements of federal, state or foreign law with respect to such securities. No shares of Common Stock may be issued hereunder if the issuance of such shares would constitute a violation of any applicable federal, state or foreign securities laws or other law or regulations or the requirements of any stock exchange or market system upon which the Common Stock may then be listed. The inability of the Company to obtain from any regulatory body having jurisdiction the authority, if any, deemed by the Company's legal counsel to be necessary to the lawful issuance of any shares subject to the Performance Stock Units shall relieve the Company of any liability in respect of the failure to issue such shares as to which such requisite authority shall not have been obtained. As a condition to the settlement of the Performance Stock Units, the Company may require Participant to satisfy any qualifications that may be necessary or appropriate, to evidence compliance with any applicable law or regulation and to make any representation or warranty with respect thereto as may be requested by the Company. |
(d) The Company will not be required to issue fractional shares of Common Stock upon settlement of the Performance Stock Units. |
(e) The Company may postpone the issuance and delivery of any shares of Common Stock provided for under this Agreement for so long as the Company determines to be necessary or advisable to satisfy the following: (1) the completion or amendment of any registration of such shares or satisfaction of any exemption from registration under any securities law, rule, or regulation; (2) compliance with any requests for representations; and (3) receipt of proof satisfactory to the Company that a person seeking such shares on Participant's behalf upon Participant's Disability (if necessary), or upon Participant's estate's behalf after the death of Participant, is appropriately authorized. |
(a) Restrictions on Transferability. The Performance Stock Units granted hereby may not be sold, transferred, pledged, assigned, or otherwise alienated or hypothecated other than with the consent of the Company or by will or by the laws of descent and distribution to the estate of Participant upon Participant's death; provided that any such permitted transferee shall acknowledge and agree in writing, in a form reasonably acceptable to the Company, to be bound by the provisions of this Agreement and the Plan as if such beneficiary or the estate were Participant. Any attempt by Participant, directly or indirectly, to offer, transfer, sell, pledge, hypothecate or otherwise dispose of any Performance Stock Units or any interest therein or any rights relating thereto without complying with the provisions of the Plan and this Agreement, including this Section 7(a), shall be void and of no effect. The Company will not be required to recognize on its books any action taken in contravention of these restrictions.
|
(b) No Rights as Stockholder. Participant shall not have any rights as a stockholder of the Company with respect to any shares of Common Stock corresponding to the Performance Stock Units granted hereby unless and until shares of Common Stock are issued to Participant in respect thereof. |
(a) Binding Effect; Benefits. This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their respective successors and assigns. Nothing in this Agreement, express or implied, is intended or shall be construed to give any person other than the parties to this Agreement or their respective successors or assigns any legal or equitable right, remedy or claim under or in respect of any agreement or any provision contained herein. |
(b) Assignability. Neither this Agreement nor any right, remedy, obligation or liability arising hereunder or by reason hereof shall be assignable by the Company or Participant without the prior written consent of the other party. |
(c) No Right to Continued Employment. Nothing in the Plan or this Agreement shall interfere with or limit in any way the right of the Company or any of its Subsidiaries to terminate Participant's employment at any time, or confer upon Participant any right to continue in the employ of the Company or any of its Subsidiaries (regardless of whether such termination results in (1) the failure of any Award to vest; (2) the forfeiture of any unvested or vested portion of any Award; and/or (3) any other adverse effect on the individual's interests under the Plan). Nothing in the Plan or this Agreement shall confer on Participant the right to receive any future Awards under the Plan. |
(d) Notices. All notices and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been given if delivered personally or sent by certified or express mail, return receipt requested, postage prepaid, or by any recognized international equivalent of such delivery, to the Company or Participant, as the case may be, at the following addresses or to such other address as the Company or Participant, as the case may be, shall specify by notice to the other:
If to the Company, to it at:
999 Vanderbilt Beach Road, 3rd Floor
Naples, Florida 34108 Attention: General Counsel Facsimile: 866-999-3798 If to Participant, to Participant at his or her most recent address as shown on the books and records of the Company or Subsidiary employing Participant.
|
All such notices and communications shall be deemed to have been received on the date of delivery if delivered personally or on the third business day after the mailing thereof. |
(e) Amendment. This Agreement may be amended from time to time by the Committee in its discretion; provided, however, that this Agreement may not be modified in a manner that would have a materially adverse effect on the Performance Stock Units as determined in the discretion of the Committee, except as provided in the Plan, or in any other written document signed by Participant and the Company. This Agreement may not be amended, modified or supplemented orally. |
(f) Interpretation. The Committee shall have full power and discretion to construe and interpret the Plan (and any rules and regulations issued thereunder) and this Award. Any determination or interpretation by the Committee under or pursuant to the Plan or this Award shall be final and binding and conclusive on all persons affected hereby. |
(g) Tax Withholding. The Company shall have the right and power to deduct from all amounts paid to Participant in cash or shares (whether under the Plan or otherwise) or to require Participant to remit to the Company promptly upon notification of the amount due, an amount (which may include shares of Common Stock) to satisfy the minimum federal, state or local or foreign taxes or other obligations required by law to be withheld with respect to the Performance Stock Units. No shares of Common Stock shall be issued unless and until arrangements satisfactory to the Committee shall have been made to satisfy the statutory minimum withholding tax obligations applicable with respect to such Performance Stock Units. The Company may defer payments of cash or issuance or delivery of Common Stock until such requirements are satisfied. Without limiting the generality of the foregoing, Participant may elect to tender shares of Common Stock (including shares of Common Stock issuable in respect of the Performance Stock Units) to satisfy, in whole or in part, the amount required to be withheld (provided that such amount shall not be in excess of the minimum amount required to satisfy the statutory withholding tax obligations). |
(h) Applicable Law. This Agreement shall be governed by and construed in accordance with the law of the State of Delaware regardless of the application of rules of conflict of law that would apply the laws of any other jurisdiction. |
(i) Limitation on Rights; No Right to Future Grants; Extraordinary Item of Compensation. By entering into this Agreement and accepting the Performance Stock Units evidenced hereby, Participant acknowledges: (a) that the Plan is discretionary in nature and may be suspended or terminated by the Company at any time; (b) that the Award does not create any contractual or other right to receive future grants of Awards; (c) that participation in the Plan is voluntary; (d) that the value of the Performance Stock Units is not part of normal or expected compensation for purposes of calculating any severance, resignation, redundancy, end of service payments, bonuses, long-service awards, pension or retirement benefits or similar payments; and (e) that the future value of the Common Stock is unknown and cannot be predicted with certainty. |
(j) Employee Data Privacy. Participant authorizes any Affiliate of the Company that employs Participant or that otherwise has or lawfully obtains personal data relating to Participant to divulge or transfer such personal data to the Company or to a third party, in each case in any jurisdiction, if and to the extent appropriate in connection with this Agreement or the administration of the Plan. |
(k) Consent to Electronic Delivery. By entering into this Agreement and accepting the Performance Stock Units evidenced hereby, Participant hereby consents to the delivery of information (including, without limitation, information required to be delivered to Participant pursuant to applicable securities laws) regarding the Company and the Subsidiaries, the Plan, this Agreement and the Performance Stock Units via Company web site or other electronic delivery. |
(l) Claw Back or Compensation Recovery Policy. Without limiting any other provision of this Agreement, and to the extent applicable, the Performance Stock Units granted hereunder shall be subject to any claw back policy or compensation recovery policy or such other similar policy of the Company in effect from time to time. |
(m) Company Rights. The existence of the Performance Stock Units does not affect in any way the right or power of the Company or its stockholders to make or authorize any or all adjustments, recapitalizations, reorganizations or other changes in the Company's capital structure or its business, including that of its Affiliates, or any merger or consolidation of the Company or any Affiliate, or any issue of bonds, debentures, preferred or other stocks with preference ahead of or convertible into, or otherwise affecting the Common Stock or the rights thereof, or the dissolution or liquidation of the Company or any Affiliate, or any sale or transfer of all or any part of the Company's or any Affiliate's assets or business, or any other corporate act or proceeding, whether of a similar character or otherwise. |
(n) Severability. If a court of competent jurisdiction determines that any portion of this Agreement is in violation of any statute or public policy, then only the portions of this Agreement which violate such statute or public policy shall be stricken, and all portions of this Agreement which do not violate any statute or public policy shall continue in full force and effect. Further, it is the parties' intent that any court order striking any portion of this Agreement should modify the terms as narrowly as possible to give as much effect as possible to the intentions of the parties under this Agreement. |
(o) Further Assurances. Participant agrees to use his or her reasonable and diligent best efforts to proceed promptly with the transactions contemplated herein, to fulfill the conditions precedent for Participant's benefit or to cause the same to be fulfilled and to execute such further documents and other papers and perform such further acts as may be reasonably required or desirable to carry out the provisions hereof and the transactions contemplated herein. |
(p) Headings and Captions. The section and other headings contained in this Agreement are for reference purposes only and shall not affect the meaning or interpretation of this Agreement. |
(q) Counterparts. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall constitute one and the same instrument. |
|
HERTZ GLOBAL HOLDINGS, INC.
|
|
|
|
|
|
By:
|
|
|
|
Name:
|
|
|
Title:
|
|
|
|
|
|
|
|
PARTICIPANT
|
|
|
|
|
|
John P. Tague
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Target Number of Performance
Stock Units granted hereby: 350,000 |
|
(A) the acquisition by any person, entity or "group" (as defined in Section 13(d) of the Securities Exchange Act of 1934, as amended), other than any such acquisition by the Company, any of its subsidiaries, or any employee benefit plan of the Company or any of its subsidiaries, of 50% or more of the combined voting power of the Company's then outstanding voting securities;
|
|
(B) within any 24-month period, the Incumbent Directors (as defined below) shall cease to constitute at least a majority of the Board or the board of directors of any successor to the Company, provided that any director elected to the Board, or nominated for election, by a majority of the Incumbent Directors then still in office shall be deemed to be an Incumbent Director for purposes of this clause (B);
|
(C) the merger or consolidation of the Company as a result of which persons who were owners of the voting securities of the Company immediately prior to such merger or consolidation do not, immediately thereafter, own, directly or indirectly, more than 50% of the combined voting power entitled to vote generally in the election of directors of the merged or consolidated company; | |
(D) the approval by the Company's shareholders of the liquidation or dissolution of the Company other than a liquidation of the Company into any subsidiary of the Company or a liquidation a result of which persons who were stockholders of the Company immediately prior to such liquidation own, directly or indirectly, more than 50% of the combined voting power entitled to vote generally in the election of directors of the entity that holds substantially all of the assets of the Company following such event; or | |
(E) the sale, transfer or other disposition of all or substantially all of the assets of the Company to one or more persons or entities that are not, immediately prior to such sale, transfer or other disposition, affiliates of the Company; provided, however, that any sale, transfer or disposition of assets in connection with the separation of the car rental and equipment rental businesses of the Company shall not be deemed to constitute a Change in Control. |
(i) Disability; Retirement. For purposes of this Agreement, "Disability" shall mean permanent and total disability as such term is defined under Section 22(e)(3) of the Internal Revenue Code of 1986, as amended (the "Code"), without regard to whether Executive is subject to the Code. Any question as to the existence of Executive's Disability upon which Executive and the Company cannot agree shall be determined by a qualified independent physician selected by Executive (or, if Executive is unable to make such selection, such selection shall be made by any adult member of Executive's immediate family or Executive's legal representative), and approved by the Company, said approval not to be unreasonably withheld. The determination of such physician made in writing to the Company and to Executive shall be final and conclusive for all purposes of this Agreement. For purposes of this Agreement, "Retirement" and corollary terms shall mean Executive's voluntary termination of employment with the Company under any of the Company's retirement plans that occurs prior to delivery of a Notice of Termination pursuant to Section 3(iv) below; provided, that notwithstanding the foregoing, no Retirement that occurs after any other termination of employment shall adversely affect, interfere with or otherwise impair in any way Executive's right to receive the payments and benefits to which Executive is entitled on account of a termination without Cause or with Good Reason. Accordingly, and for the avoidance of doubt, if Executive provides a Notice of Termination for Good Reason, and otherwise satisfies the conditions for Good Reason pursuant to this Agreement, and also Retires, such Retirement shall not adversely affect, interfere with or otherwise impair in any way Executive's right to receive payments and benefits hereunder. Conversely, if Executive terminates Executive's employment on account of Retirement and at such time is not (x) terminating Executive's employment for Good Reason pursuant to this Agreement or (y) being terminated by the Company without Cause pursuant to this Agreement, Executive shall not be entitled to the payments and benefits provided in this Agreement |
(ii) Cause. For purposes of this Agreement, "Cause" shall mean (i) willful and continued failure to perform substantially the Executive's material duties with the Company (other than any such failure resulting from the Executive's incapacity due to physical or mental illness) after a written demand for substantial performance specifying the manner in which the Executive has not performed such duties is delivered by the Chief Executive Officer of the Company to the Executive, (ii) engaging in willful and serious misconduct that is injurious to the Company or any of its subsidiaries, (iii) one or more acts of fraud or personal dishonesty resulting in or intended to result in personal enrichment at the expense of the Company or any of its subsidiaries, (iv) substantial abusive use of alcohol, drugs or similar substances that, in the sole judgment of the Company, impairs the Executive's job performance, (v) material violation of any material Company policy that results in material harm to the Company or any of its subsidiaries or (vi) indictment for or conviction of a felony or of any crime (whether or not a felony) involving moral turpitude. Notwithstanding the foregoing, Executive shall not be deemed to have been terminated for Cause unless and until there shall have been delivered to Executive a copy of a resolution duly adopted by the affirmative vote of not less than three-quarters (3/4) of the Incumbent Directors of the Board at a meeting of the Board called and held for such purpose (after reasonable notice to Executive and an opportunity for Executive, together with Executive's counsel, to be heard before the Board), finding that, in the good faith opinion of the Board, Executive was guilty of conduct set forth above in this Section 3(ii) and specifying the particulars thereof in detail. | |
(iii) Good Reason. Executive shall be entitled to terminate employment with Good Reason. For the purpose of this Agreement, "Good Reason" shall mean the occurrence, without Executive's express written consent, of any of the following circumstances during the Protected Period unless, in the case of Sections 3(iii)(A), (E), or (F), such circumstances are fully corrected prior to the date specified as the Date of Termination (as defined in Section 3(v)) in the Notice of Termination (as defined in Section 3(iv)) given in respect thereof. |
|
(A) the assignment to Executive of any duties or responsibilities not comparable to Executive's position (as it existed immediately prior to the Change in Control) and that results in a substantial diminution or material adverse change in such duties or responsibilities from those in effect immediately prior to the Change in Control other than a change in title or reporting relationships;
|
(B) the merger or consolidation of the Company as a result of which persons who were owners of the voting securities of the Company immediately prior to such merger or consolidation do not, immediately thereafter, own, directly or indirectly, more than 50% of the combined voting power entitled to vote generally in the election of directors of the merged or consolidated company; | |
(C) the approval by the Company's shareholders of the liquidation or dissolution of the Company other than a liquidation of the Company into any subsidiary of the Company or a liquidation a result of which persons who were stockholders of the Company immediately prior to such liquidation own, directly or indirectly, more than 50% of the combined voting power entitled to vote generally in the election of directors of the entity that holds substantially all of the assets of the Company following such event; or | |
(D) the sale, transfer or other disposition of all or substantially all of the assets of the Company to one or more persons or entities that are not, immediately prior to such sale, transfer or other disposition, affiliates of the Company; provided, however, that any sale, transfer or disposition of assets in connection with the separation of the car rental and equipment rental businesses of the Company shall not be deemed to constitute a Change in Control. | |
(E) the failure by the Company or any of its subsidiaries to continue Executive's participation in any long-term incentive compensation plan on a level comparable to other senior executives; | |
(F) except as required by law, a reduction by the Company or any of its subsidiaries of 5% or more in the aggregate benefits provided by Executive (excluding changes to such benefits that occur in the ordinary course, are of general application, and increase co-payments, deductibles or premiums which must be paid by Executive) as those enjoyed by Executive under the employee benefit and welfare plans of the Company and its subsidiaries, including, without limitation, the pension, life insurance, medical, dental, health and accident, retiree medical, disability, deferred compensation and savings plans, in which Executive was participating at the time of the Change in Control; | |
(G) the failure of the Company to obtain an agreement from any successor to assume and agree to perform this Agreement, as contemplated in Section 6 hereof; or | |
(H) any purported termination of Executive's employment by the Company or its subsidiaries which is not effected pursuant to a Notice of Termination satisfying the requirements of Section 3(iv) below (and, if applicable, the requirements of Section 3(ii) above); for purposes of this Agreement, no such purported termination shall be effective. |
Executive's continued employment shall not constitute consent to, or a waiver of rights with respect to, any circumstances constituting Good Reason hereunder. Executive must provide the Notice of Termination not later than 180 days following the date Executive had actual knowledge of the event constituting Good Reason. | |
(iv) Notice of Termination. Any purported termination of Executive's employment by the Company and its subsidiaries or by Executive shall be communicated by written Notice of Termination to the other party hereto in accordance with Section 7 hereof. For purposes of this Agreement, a "Notice of Termination" shall mean a notice which shall indicate the specific termination provision in this Agreement relied upon and shall set forth in reasonable detail (other than with respect to a Good Reason termination pursuant to Section 3(iii)(H)) the facts and circumstances claimed to provide a basis for termination of Executive's employment under the provision so indicated. | |
(v) Date of Termination. "Date of Termination" shall mean (A) if Executive's employment is terminated for Disability, 30 days after Notice of Termination is given (provided that Executive shall not have returned to the full-time performance of Executive's duties during such 30 day period), and (B) if Executive's employment is terminated pursuant to Section 3(ii) or (iii) above or for any reason (other than Disability), the date specified in the Notice of Termination (which, in the case of a termination pursuant to Section 3(ii) above shall not be less than 30 days, and in the case of a termination pursuant to Section 3(iii) above shall not be less than 30 nor more than 60 days, respectively, from the date such Notice of Termination is given); provided, that, if within 30 days after any Notice of Termination is given the party receiving such Notice of Termination notifies the other party that a dispute exists concerning the grounds for termination, the Date of Termination shall be the date on which the dispute is finally determined, either by mutual written agreement of the parties, by a binding arbitration award or by a final judgment, order or decree of a court of competent jurisdiction (which is not appealable or the time for appeal therefrom having expired and no appeal having been perfected); provided, further, that the Date of Termination shall be extended by a notice of dispute only if such notice is given in good faith and the party giving such notice pursues the resolution of such dispute with reasonable diligence. Notwithstanding the pendency of any such dispute, the Company and its subsidiaries will continue to pay Executive's full compensation in effect when the notice giving rise to the dispute was given (including, but not limited to, base salary and bonus) and continue Executive as a participant in all incentive compensation, benefit and insurance plans in which Executive was participating when the notice giving rise to the dispute was given, until the dispute is finally resolved in accordance with this Section 3(v). Amounts paid under this Section 3(v) are in addition to all other amounts due under this Agreement and shall not be offset against or reduce any other amounts due under this Agreement. In the event that the Company is terminating Executive the Company may, if it so chooses, pay Executive the base salary which Executive would have received in lieu of waiting for the expiration of any notice period otherwise required hereby and bar Executive from any of the Company's premises, offices or properties, subject to any rights set forth herein for Executive to contest such termination. |
(i) During any period that Executive fails to perform Executive's full-time duties with the Company and its subsidiaries as a result of the Disability, Executive shall continue to receive an amount equal to Executive's base salary at the rate in effect at the commencement of any such period, and Bonus (as defined in Section 4(iv)(B)), through the Date of Termination for Disability; provided, that if any such period of Disability ends during the Protected Period, Executive shall have the right to resume active employment with the Company immediately following the end of such period of Disability, unless, prior to the end of such period of Disability, the Company has terminated Executive's employment. Thereafter, Executive's benefits shall be determined in accordance with the employee benefit programs of the Company and its subsidiaries then in effect. | |
(ii) If Executive's employment is terminated by the Company or any of its subsidiaries for Cause or by Executive without Good Reason (excluding death, Disability or Retirement) the Company (or one of its subsidiaries, if applicable) shall pay through the Date of Termination Executive's full base salary at the rate in effect at the time Notice of Termination is given and shall pay any amounts otherwise payable to Executive on or immediately prior to the Date of Termination pursuant to any other compensation plans, programs or employment agreements then in effect, and the Company shall have no further obligations to Executive under this Agreement. | |
(iii) If Executive's employment is terminated by reason of Executive's death or Retirement, Executive's benefits shall be determined in accordance with the retirement and other benefit programs of the Company and its subsidiaries then in effect, except as otherwise provided in Section 3(i). |
(iv) If Executive's employment by the Company and its subsidiaries is terminated (other than for death or Disability) by (a) the Company and its subsidiaries other than for Cause or (b) Executive with Good Reason, then, the Company (or one of its subsidiaries, if applicable) shall pay, in accordance with the Company's normal payroll procedures, any unpaid portion of Executive's full base salary, at the rate in effect at the time of the Change in Control (the "Base Salary"), calculated through the Date of Termination, and subject to Executive executing, delivering and not revoking the Release of Claims attached to this Agreement as Exhibit A (the "Release") within 60 days following the Separation from Service Date (as defined in Section 4(vii)) (the "Release Period") and provided that such Release is effective and binding and non-revocable by the end of the Release Period, Executive shall be entitled to the benefits provided below:
|
(A) The Company (or one of its subsidiaries, if applicable) shall pay a pro-rated annual bonus at target level calculated through the Date of Termination, no later than the last day of the Release Period, plus all other amounts to which Executive is entitled under any compensation plan of the Company applicable to Executive, at the time such payments are due (provided, however, if the Release Period crosses over two calendar years, any payments made under this Section 4(iv)(A) shall be made no earlier than January 1st of the second calendar year). | |
(B) The Company shall pay Executive, not later than 10 days following the date on which the Release has become effective and irrevocable (provided, however, if the Release Period crosses over two calendar years, payment shall be made within 10 days following the later of such date or January 1st of the second calendar year), as severance pay to Executive, a severance payment equal to 2.5 times the sum of (i) Executive's Base Salary, and (ii) Bonus. For purposes of this Agreement, the "Bonus" shall mean the average annual cash bonus paid (or awarded, if different) in respect of each of the three prior bonus years (exclusive of any special or prorated bonuses). If Executive has less than three years of bonus history, "Bonus" shall mean the target bonus of the year of termination. | |
(C) From the Date of Termination, until the earlier of (i) 18 months following the Date of Termination or (ii) the date upon which Executive becomes eligible to participate in plans of another employer (such period, the "Benefit Continuation Period"), the Company will continue Executive's participation and coverage in all the Company's life, medical, dental plans and other welfare benefit plans (but excluding the Company's disability plans) ("Insurance Benefits"); provided that if any other Company plan, arrangement or agreement provides for continuation of Insurance Benefits, then Executive shall receive such coverage under such other plan, arrangement or agreement, and if the period of such coverage is shorter than the Benefit Continuation Period, then Executive shall receive pursuant to this Section 4(iv)(C), such coverage for the remainder of the Benefit Continuation Period. |
(D) The Company shall provide to Executive outplacement services or executive recruiting services provided by a professional outplacement provider or executive recruiter at a cost to the Company of not more than 10% of Executive's Base Salary (not to exceed $25,000) to be provided within the period ending no later than the end of the year following the year in which the Date of Termination occurs. |
(v) To the extent outstanding following a Change in Control, Executive's stock options and other equity awards shall be governed by the terms of the equity incentive plans and award agreements under which such stock options and other equity awards were awarded. | |
(vi) The Company shall also pay to Executive, no less frequently than monthly, all legal fees and expenses reasonably incurred by Executive in connection with this Agreement (including all such fees and expenses, if any, incurred in contesting or disputing the nature of any such termination for purposes of this Agreement or in seeking to obtain or enforce any right or benefit provided by this Agreement); provided, that if a determination is made by the arbitrator selected under Section 12 hereof that Executive has failed to prevail on at least one material claim, the Company shall not be liable to pay such legal fees or expenses otherwise provided for thereunder and the Company shall be entitled to recover from Executive any such amounts so paid (either directly or, except as would violate the requirements of Section 409A of the Code, by setoff against any amounts then owed Executive by the Company). Notwithstanding the penultimate sentence of Section 8, no reimbursement pursuant to this Section 4(vi) shall be paid later than the last day of the 10th calendar year following the calendar year in which the applicable statute of limitations for breach of contract claims expires or, if later, the last day of the calendar year following the calendar year in which there is a settlement or other final and nonappealable resolution of the related contest or dispute. | |
(vii) Notwithstanding the foregoing provisions of this Section 4, if, as of the Separation from Service Date, Executive is a Specified Employee, then, except to the extent that this Agreement does not provide for a "deferral of compensation" within the meaning of Section 409A of the Code, the following shall apply: |
1) No payments shall be made and no benefits shall be provided to Executive, in each case, during the period beginning on the Separation from Service Date and ending on the six-month anniversary of such date or, if earlier, the date of Executive's death. | |
2) On the first business day of the first month following the month in which occurs the six-month anniversary of the Separation from Service Date or, if earlier, Executive's death, the Company shall make a one-time, lump-sum cash payment to the Executive in an amount equal to the sum of (x) the amounts otherwise payable to the Executive under this Agreement during the period described in Section 4(vii)1) above and (y) the amount of interest on the foregoing at the applicable federal rate for instruments of less than one year. |
HERTZ GLOBAL HOLDINGS, INC.
|
|
|
|
By:
|
/s/ Linda Fayne Levinson
|
|
Name: Linda Fayne Levinson
|
|
Title: Independent Non-Executive
Chair of the Board of Directors |
John P. Tague
|
|
/s/ John P. Tague |
WITH EXECUTIVE'S SIGNATURE HEREUNDER, EXECUTIVE ACKNOWLEDGES THAT EXECUTIVE HAS CAREFULLY READ THIS AGREEMENT AND UNDERSTANDS ALL OF ITS TERMS INCLUDING THE FULL AND FINAL RELEASE OF CLAIMS SET FORTH ABOVE. EXECUTIVE FURTHER ACKNOWLEDGES THAT EXECUTIVE HAS VOLUNTARILY ENTERED INTO THIS AGREEMENT; THAT EXECUTIVE HAS NOT RELIED UPON ANY REPRESENTATION OR STATEMENT, WRITTEN OR UNWRITTEN, NOT SET FORTH IN THIS AGREEMENT; THAT EXECUTIVE HAS BEEN GIVEN THE OPPORTUNITY TO HAVE THIS AGREEMENT REVIEWED BY EXECUTIVE'S ATTORNEY; AND THAT EXECUTIVE HAS BEEN ENCOURAGED BY THE COMPANIES TO DO SO.
EXECUTIVE ALSO ACKNOWLEDGES THAT EXECUTIVE HAS BEEN AFFORDED 21 DAYS TO CONSIDER THIS AGREEMENT AND THAT EXECUTIVE HAS 7 DAYS AFTER SIGNING THIS AGREEMENT TO REVOKE IT BY DELIVERING TO THE SENIOR VICE PRESIDENT, CHIEF HUMAN RESOURCES OFFICER, AS SET FORTH ABOVE, WRITTEN NOTIFICATION OF EXECUTIVE'S REVOCATION.
|
|
Date:
|
EXECUTIVE
|
|
THE HERTZ CORPORATION
|
HERTZ GLOBAL HOLDINGS, INC.
|
By:
Date:
|
By:
Date:
|