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EXHIBIT 10(o)
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EMPLOYMENT AGREEMENT
AGREEMENT, dated as of February 12, 1998 between The Hertz
Corporation, a Delaware Corporation (the "Corporation"), and Xxxxxx X. Xxxxxxx,
(the "Executive").
WHEREAS, the Corporation currently employs the Executive in the
capacity of Executive Vice President of The Hertz Corporation and President of
HERC, and the Executive is a key executive officer of the Corporation; and
WHEREAS, the Corporation desires that the Executive continue in the
employ of the Corporation in his present position, or other senior executive
position, and the Executive desires to continue to be so employed, and both
parties are willing to make a commitment to continue this employment
relationship for the term of this Agreement, as set forth in Section 2 hereof
(the "Term");
NOW, THEREFORE, in consideration of the mutual promises contained
herein and other good and valuable consideration, the parties hereby agree as
follows:
1. Employment.
The Corporation hereby agrees to continue to employ and engage the
services of the Executive during the Term as an executive officer of the
Corporation and the Executive agrees to serve the Corporation in such capacity
and position during the Term.
2. Term.
The Term shall consist of a period commencing on the date hereof and
ending on February 12, 2001, unless terminated earlier pursuant to Section 5
hereof; provided however, that in no event shall the term of this Agreement
extend beyond the Executive's normal retirement date under the Corporation's
retirement policies existing on the date hereof or under any policy established
for the Executive with his consent.
3. Position and Duties.
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(a) At the present time, Executive is Executive Vice President of The
Hertz Corporation and President, HERC, of the Corporation. During the Term, the
Executive's position, duties and responsibilities shall be those of a senior
executive of the Corporation, recognizing that, notwithstanding any provision of
the Agreement to the contrary, the Corporation shall have the absolute right to
modify or change the position, duties, responsibilities and title of the
Executive in any respect; provided, however, that the Executive shall continue
to be employed in a senior executive capacity during the Term.
(b) The Executive agrees to devote his full business time during
normal business hours to the business and affairs of the Corporation and to use
his best efforts to promote the interests of the Corporation and to perform
faithfully and efficiently the responsibilities assigned to him in accordance
with the terms of this Agreement, to the extent necessary to discharge such
responsibilities, except for (I) services on corporate, civic or charitable
boards or committees not significantly interfering with the performance of such
responsibilities and (ii) periods of vacation and sick leave to which he is
entitled. It is expressly understood and agreed that the Executive's continuing
service on any boards and committees with which he shall be connected, as a
member or otherwise, as of the date hereof, or any such service approved by the
Corporation during the term of employment, shall not be deemed to interfere with
the performance of the Executive's services for the Corporation pursuant to this
paragraph (b).
(c) During the Term and so long as any payments are being made under
Section 4 hereof, the Executive shall refrain from engaging in any activity that
is directly or indirectly in competition with any activity, or is inimical to
the best interests, of the Corporation or any of its subsidiaries or affiliates.
4. Compensation and Other Terms of Employment.
(a) Base Salary. During the Term, the Executive shall receive an
annual base salary ("Base Salary"), payable in equal installments not less
frequently than twice per month, at an annual rate at least equal to the
aggregate annual base salary payable to the Executive by the Corporation and any
of its affiliated companies as of the date hereof. The Base Salary shall be
reviewed and may be increased at any time and from time to time in accordance
with the Corporation's regular practices. Any increase in the Base Salary shall
not serve to limit or reduce any other obligation of the Corporation hereunder,
and after any such increase the Base Salary shall not be reduced from such
increased level during the Term.
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As used in this Agreement, the term "affiliated companies" shall mean any
company (or other business entity) controlling, controlled by, or under common
control with the Corporation.
(b) Incentive Compensation. As further compensation, the Executive
will be eligible for awards ("Incentive Compensation") under the Corporation's
bonus and incentive compensation plans determined on no less favorable a basis
than those provided to the Executive under such plans as in effect as of the
date hereof.
(c) Retirement, Savings and Stock Option Plans. In addition to the
Base Salary and Incentive Compensation payable as hereinabove provided, during
the Term the Executive shall be entitled to participate in all savings, stock
option, retirement and employee welfare and benefit plans and programs, and
fringe benefit, vacation, sick leave, insurance and prerequisite policies, on a
basis providing him with the opportunity to receive aggregate compensation and
benefits, on a before-tax basis, not less favorable than those provided by the
Corporation and its affiliated companies to the Executive under such plans,
programs and policies as in effect as of the date hereof. Nothing herein shall
be construed to prevent the Corporation or such affiliated companies from
amending or altering any such plans or programs so long as the Executive
continues to have the opportunity to receive aggregate compensation and
benefits, on a before tax basis, at a level not less favorable than those
currently provided. All existing agreements between the Corporation and the
Executive providing for special pension, retirement or similar benefits are
automatically continued for the Term. Any rights to benefits which become vested
under the terms of such plans, programs, policies and agreements but which are
to be paid or provided in future periods shall continue to be so vested
notwithstanding the prior termination of this Agreement.
(d) Expenses. During the Term the Executive shall be entitled to
receive prompt reimbursement for all reasonable expenses incurred by the
Executive in accordance with the policies and procedures of the Corporation in
effect as of the date hereof or as they may be amended from time to time.
5. Termination.
(a) Death. Except for the obligations of the Corporation set forth in
Section 4(c) hereof, this Agreement shall terminate automatically upon the
Executive's death. All benefits and compensation then
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accrued hereunder, and under any plans provided for under Section 4(C) hereof,
shall be paid to the Executive's beneficiaries, legal representatives, or heirs
as appropriate.
(b) Disability. If, as a result of the Executive's incapacity due to
physical or mental illness the Executive shall have been absent from the
full-time performance of his duties with the Corporation for six (6) consecutive
months, and within thirty (30) days after written notice of termination is given
the Executive shall not have returned to the full-time performance of his
duties, the Executive's employment may be terminated for disability. During such
period of absence, the Executive shall continue to receive the benefits provided
in Section 4 hereof and thereafter the Executive's benefits shall be determined
under the Corporation's disability insurance plans and policies provided under
Section 4(C) hereof.
(c) Cause. The Corporation may terminate the Executive's employment
for Cause. For purposes of this Agreement, "Cause" shall mean (i) an act or acts
of dishonesty on the Executive's part which are intended to result in his
substantial personal enrichment at the expense of the Corporation or the
Executive's conviction of a felony; (ii) any material violation by the Executive
of his responsibilities set forth in Section 3 hereof; or (iii) any material
breach of any provision of this agreement by Executive. If the Executive's
employment is terminated for Cause, the Corporation shall pay the Executive his
full accrued Base Salary through the date of such termination at the rate in
effect at the time of such termination, and the Corporation shall have no
further obligations to the Executive under this Agreement. The Executive's
employment shall not be terminated for Cause unless there shall have been
delivered to the Executive a resolution duly adopted by the Board of Directors
of the Corporation at a meeting of the Board which the Executive, together with
his counsel, has an opportunity upon reasonable notice to attend and to address
the Board, such resolution setting forth with particularity the basis for
terminating the Executive for Cause.
(d) Retirement. The Executive may terminate his employment hereunder
by retirement, including early retirement, during the Term of the Agreement,
under the Corporation's retirement policies existing on the date hereof or under
any policy established for the Executive with his consent, provided that the
Corporation consents to such retirement action.
6. Non-exclusivity of Rights.
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Nothing in this Agreement shall prevent or limit the Executive's
continuing or future participation in any benefit, bonus, incentive or other
plan or program provided by the Corporation or any of its affiliated companies
and for which the Executive may qualify, nor shall anything herein limit or
otherwise affect such rights as the Executive may have under any stock option or
other agreements with the Corporation or any of its affiliated companies, unless
this Agreement is terminated for breach of the provisions contained in Section
3(c) hereof. Amounts which are vested benefits under any plan or program of the
Corporation or any of its affiliated companies shall be payable in accordance
with the terms of such plan or program.
7. No Set-Off; Legal Fees.
The Corporation's obligation to make the payments provided for herein
and otherwise to perform its obligations hereunder shall not be affected by any
circumstances, including without limitation any set-off, counterclaim,
recoupment, defense or other right which the Corporation may have against the
Executive or others unless this Agreement is terminated for cause for breach of
the conditions set forth in Section 3(C) hereof. Unless it is finally determined
by a court of competent jurisdiction that the Corporation has validly terminated
the Executive's employment for Cause, the Corporation agrees to pay, to the full
extent permitted by law, all legal fees and expenses which the Executive may
reasonably incur in defending any contest by the Corporation or others of the
validity or enforceability of, or liability under, any provision of this
Agreement, plus interest on the total unpaid amount determined to be payable
hereunder, for the period commencing on the date of such contest and ending on
the date on which the Corporation shall pay such total amount, provided
Executive prevails in such contest.
8. Receipt of Certain Benefits.
It is the mutual intention of the Corporation and the Executive that
the Executive shall receive the full benefit of those compensation plans and
programs of the Corporation, including its retirement and pension plans and
programs, being provided pursuant to Section 4 hereof which provide for benefits
payable over periods beyond the particular year of employment ("Long-Term
Plans"). Accordingly, the parties intend that, in the event of any breach by the
Corporation of the terms hereof, damages for such breach shall include
consequential damages for the loss of any benefits under such Long-Term Plans,
which benefits would have become payable under such plans had the Executive
completed the Term
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remaining at the time of such breach but which are not payable under such plans
by reason of such breach.
9. Confidential Information.
The Executive shall hold in a fiduciary capacity for the benefit of
the Corporation all secret or confidential information, knowledge or data
relating to the Corporation, Ford Motor Company, or any of their subsidiaries or
affiliates, and their respective businesses, which shall have been obtained by
the Executive during his employment by the Corporation or any of its affiliated
companies and which shall not be public knowledge. During and after the end of
the term of employment, the Executive shall not, without the prior written
consent of the Corporation, communicate or divulge any such information,
knowledge or data to anyone other than the Corporation and those designated by
it.
10. No Assignment; Assumption.
This Agreement is personal to the Executive and without the prior
written consent of the Corporation shall not be assignable by the Executive
other than by will or the laws of descent and distribution. This Agreement shall
inure to the benefit of and be enforceable by the Executive's legal
representatives. This Agreement shall be binding upon any successor to the
business or assets of the Corporation which assumes this Agreement expressly, by
operation of law or otherwise.
11. Miscellaneous.
(a) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware, without reference to principles of
conflict of laws. The captions of this Agreement are not part of the provisions
hereof and shall have no force or effect. This Agreement may not be amended or
modified other than by a written agreement executed by the parties hereto or
their respective successors and legal representatives.
(b) All notices and other communications hereunder shall be in
writing and shall be given by hand delivery to the other party or by registered
or certified mail, return receipt requested, postage prepaid, addressed as
follows:
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If to the Executive:
0 Xxxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
If to the Corporation:
000 Xxxx Xxxxxxxxx
Xxxx Xxxxx, Xxx Xxxxxx 00000
Attention: General Counsel
or to such other address as either party shall have furnished to the other in
writing in accordance herewith. Notice and communications shall be effective
when actually received by the addressee.
(c) The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability of any other provision
of this Agreement.
(d) The Corporation may withhold from any amounts payable under this
Agreement such federal, state or local taxes as shall be required to be withheld
pursuant to any applicable law or regulation.
(e) This Agreement contains the entire understanding of the parties
hereto with respect to the subject matter hereof.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
signed in its corporate name and its corporate seal to be hereunto affixed and
to be attested by its Secretary or one of its Assistant Secretaries, and the
Executive has hereunto set his hand, all as of the day and year first above
written.
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/s/ Xxxxxx X. Xxxxxxx
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Executive
THE HERTZ CORPORATION
By /s/ Xxxxxx X. Xxxxxx
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Its Senior Vice President, Employee Relations
ATTEST:
/s/ Xxxx X. Xxxxxxxxxx
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Secretary
(SEAL)
