EMPLOYMENT AGREEMENT
Exhibit
10.3
Avis
Budget Group, Inc. (the "Company") and Xxxxx X. Xxxxxxx (the
"Executive") are parties to this certain Employment Agreement
amended and restated as of December 29, 2008 (the
"Agreement").
WHEREAS,
the Company desires to continue to employ the Executive as a full-time employee
of the Company and the Executive desires to continue to serve the Company
in
such capacity.
WHEREAS,
the Company and the Executive agree to amend and restate the Agreement,
originally entered into effective August 31, 2006, in its entirety as set
forth
herein.
NOW
THEREFORE, in consideration of the foregoing and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged,
the
parties hereby agree that the Agreement is amended and restated to read as
follows:
SECTION
I
EFFECTIVENESS
This
Agreement shall be effective as of August 31, 2006 (the "Effective
Date").
SECTION
II
EMPLOYMENT;
POSITION AND RESPONSIBILITIES
The
Company agrees to employ the Executive, and the Executive agrees to be employed
by the Company, for the Period of Employment as provided in Section III below
and upon the terms and conditions provided in this Agreement. During the
Period
of Employment, the Executive shall serve as the Executive Vice President
and
Chief Financial Officer of the Company. During the Period of Employment,
the
Executive shall report to, and be subject to the direction of, the Chief
Executive Officer of the Company (the "Supervising Officer").
The Executive shall perform such duties and exercise such supervision with
regard to the business of the Company as are associated with his position,
as
well as such additional duties as may be prescribed from time to time by
the
Supervising Officer. The Executive shall, during the Period of Employment,
devote substantially all of his time and attention during normal business
hours
to the performance of services for the Company. The Executive shall maintain
a
primary office and conduct his business in Parsippany, New Jersey (the
"Business Office"), except for normal and reasonable business
travel in connection with his duties hereunder.
SECTION
III
PERIOD
OF EMPLOYMENT
The
period of the Executive's employment under this Agreement (the "Period
of Employment") shall begin on the Effective Date and shall end on the
fourth anniversary of the Effective Date (the "Term"), subject
to earlier termination as provided in this Agreement. Effective upon the
expiration of the Term, Executive's employment hereunder shall be deemed
to be
automatically extended thereafter, upon the same terms and conditions, for
additional periods of one year (the "Additional Terms")
commencing upon the expiration of the Term unless either party shall have
given
written notice to the other, at least six (6) months prior to the expiration
of
the Term (or, if applicable, the Additional Term) of its intention not to
extend
the Period of Employment hereunder; provided that any such notice of
non-extension delivered by the Company to Executive shall be deemed to
constitute a Constructive Discharge (as defined below) of the
Executive.
SECTION
IV
COMPENSATION
AND BENEFITS
For
all
services rendered by the Executive pursuant to this Agreement during the
Period
of Employment, including services as an executive officer, director or committee
member of the Company or any subsidiary or affiliate of the Company, the
Executive shall be compensated as follows:
(a) Base
Salary
The
Company shall pay the Executive a fixed base salary ("Base
Salary") of not less than: (i) five hundred twenty-five thousand
dollars ($525,000), per annum, for the 2009 calendar year; (ii) five hundred
seventy-five thousand dollars ($575,000), per annum, for the 2010 calendar
year;
and (iii) six hundred thousand dollars ($600,000), per annum, for the 2011
calendar year; and thereafter the Executive shall be eligible to receive
annual
increases as the Company deems appropriate, in accordance with the Company's
customary procedures regarding salaries of senior officers. Base
Salary shall be payable according to the customary payroll practices of the
Company, but in no event less frequently than once each month.
(b) Annual
Incentive Awards
The
Executive shall be eligible to earn a target Annual Bonus for each fiscal
year
of the Company ending during the Period of Employment (each, an "Annual
Bonus") equal to 100% of the Executive's Base Salary for such fiscal
year, if the Company achieves the target performance goals established by
the
Compensation Committee (the "Committee") for such fiscal year.
The Committee may establish such metrics whereby the Executive may earn an
Annual Bonus in excess of the target Annual Bonus or an Annual Bonus less
than
the target Annual Bonus.
Any
Annual Bonus that becomes payable to the Executive pursuant to this Section
shall be paid to the Executive as soon as reasonably practicable following
receipt by the Board of the audited consolidated financial statements of
the
Company for the relevant fiscal year, but in no event later than two and
a half
(2 ½) months following the end of the applicable fiscal year in which such
Annual Bonus was earned. The Executive shall be entitled to receive any Annual
Bonus that becomes payable in a lump sum cash payment, or, at his election,
in
any form that the Board generally makes available to the Company's executive
management team; provided that any such election is made by the Executive
in
compliance with Section 409A ("Section 409A") of the Internal
Revenue Code of 1986, as amended (the "Code") and the
regulations promulgated thereunder.
(c) Long-Term
Incentive Awards
During
the Period of Employment, the Executive shall be eligible for long term
incentive awards as determined by the Committee in its discretion.
(d) Additional
Benefits
The
Executive shall be entitled to participate in all other compensation and
employee benefit plans or programs and receive all benefits and perquisites
for
which salaried employees of the Company generally are eligible under any
plan or
program now in effect, or later established by the Company, on a basis no
less
favorable than as provided to any other similarly situated executive of the
Company. The Executive shall participate to the extent permissible under
the
terms and provisions of such plans or programs, and in accordance with the
terms
of such plans and programs.
SECTION
V
BUSINESS
EXPENSES
The
Company shall reimburse the Executive for all reasonable travel and other
expenses incurred by the Executive in connection with the performance of
his
duties and obligations under this Agreement. The Executive shall comply with
such limitations and reporting requirements with respect to expenses as may
be
established by the Company from time to time and shall promptly provide all
appropriate and requested documentation in connection with such expenses.
Further, the Executive will receive access to Company aircraft or alternative
air transportation, subject to applicable Company policies.
SECTION
VI
DEATH
AND DISABILITY
The
Period of Employment shall end upon the Executive's death. If the Executive
experiences a Disability (as defined below) during the Period of Employment,
the
Period of Employment may be terminated at the option of the Executive upon
notice of resignation to the Company, or at the option of the Company upon
notice of termination to the Executive. For purposes of this Agreement,
"Disability" shall have the meaning set forth in Section 409A. The Company's
obligation to make payments to the Executive under this Agreement shall cease
as
of such date of termination, except for Base Salary and any Annual Bonus
earned
but unpaid as of the date of such termination (the "Accrued
Obligations"), and, in such event (a) each of the Executive's then
outstanding options to purchase shares of Company common stock that were
granted
prior to July 28, 2006 and options to purchase shares of Wyndham Worldwide
Corporation common stock (and its successors) (the "Pre-Existing
Options") shall become immediately and fully vested and exercisable (to
the extent not already vested) and, shall remain exercisable during the extended
post-termination exercise period set forth in the agreements evidencing the
terms and conditions of such awards, (b) each option to purchase shares of
the
Company common stock or stock appreciation right granted on or after July
28,
2006, shall become immediately and fully vested and exercisable (to the extent
not already vested) and, notwithstanding any term or provision relating to
such
option to the contrary, shall remain exercisable until the first to occur
of the
third (3rd) anniversary of the Executive's termination of employment and
the
original expiration date of such option or stock appreciation rights, (c)
all
other long-term equity awards then outstanding shall become immediately vested,
and (d) the Company shall pay the Executive (or his surviving spouse, estate
or
personal representative, as applicable) a cash amount equal to the Executive's
target Annual Bonus for the year in which the Executive is terminated multiplied
by a fraction the numerator of which is the total number of days during the
applicable calendar year during which the Executive was employed by the Company
and the denominator of which is 365. Upon the Executive's termination
due to death or Disability, the Executive and each person who is his covered
dependent at such time under the Company sponsored health and dental plan
shall
remain eligible to continue to participate in such plans (as they may be
modified from time to time with respect to all senior executive officers)
until
the 2nd anniversary of such termination of employment (such benefits, the
"Continuation of Health Benefits").
SECTION
VII
EFFECT
OF TERMINATION OF EMPLOYMENT
(a) Without
Cause Termination and Constructive Discharge. Subject to the
provisions of Section VII(d), if the Executive's employment terminates during
the Period of Employment due to either a Without Cause Termination or a
Constructive Discharge (each as defined below): (i) the Accrued Obligations
shall be paid to the Executive in accordance with paragraph (d) below, (ii)
the Company shall pay the Executive (or his surviving spouse, estate or personal
representative, as applicable), on the sixty-first (61st) day
following the
Executive's termination of employment (or, in the event that the Release
Date
(as defined in Section VII(d) below is extended in accordance with the dispute
provisions set forth in Section VII(d) below, upon resolution of the dispute),
an amount equal to 299% multiplied by the sum of (A) the Executive's then
current Base Salary, plus (B) the Executive's then
current
target Annual Bonus; (iii) each of the Executive's then outstanding Pre-Existing
Options shall become immediately and fully vested and exercisable (to the
extent
not already vested) in accordance with the terms and conditions applicable
to
such options set forth in the agreements evidencing the terms and conditions
of
such awards, and shall remain exercisable for the extended post-termination
exercise period set forth in the agreements evidencing the terms and conditions
of such awards; (iv) each option to purchase shares of the Company common
stock
or stock appreciation right granted on or after July 28, 2006 (excluding
any
Pre-Existing Option to acquire the Company common stock) shall become
immediately and fully vested and exercisable (to the extent not already vested)
and, notwithstanding any term or provision thereof to the contrary, shall
remain
exercisable until the first to occur of the third (3rd) anniversary of the
Executive's termination of employment and the original expiration date of
such
option or stock appreciation right; (v) all other long-term equity awards
(including, without limitation, restricted stock units, but excluding the
award
of performance based restricted stock units granted to the Executive on August
1, 2006, which award shall be governed by the terms and conditions governing
such award) shall become immediately vested. Upon such termination, the
Executive shall also be entitled to the Continuation of Health
Benefits.
(b) Termination
for Cause; Resignation. If the Executive's employment terminates due to a
Termination for Cause or a Resignation, the Accrued Obligations shall be
paid to
the Executive in accordance with paragraph (d) below. Outstanding stock options
and other equity awards held by the Executive as of the date of termination
shall be treated in accordance with their terms. Except as provided in this
paragraph, the Company shall have no further obligations to the Executive
hereunder.
(c) For
purposes of this Agreement, the following terms have the following
meanings:
i. "Termination
for Cause" means termination by the Company of the Executive as a
result of (a) the Executive's willful failure to substantially perform his
duties as an employee of the Company or any subsidiary (other than any such
failure resulting from incapacity due to physical or mental illness), (b)
any
act of fraud, misappropriation, dishonesty, embezzlement or similar conduct
against the Company or any subsidiary, (c) the Executive's conviction of
a
felony or any crime involving moral turpitude (which conviction, due to the
passage of time or otherwise, is not subject to further appeal), (d) the
Executive's gross negligence in the performance of his duties or (e) the
Executive purposefully or negligently makes (or has been found to have made)
a
false certification to the Company pertaining to its financial
statements.
ii. "Constructive
Discharge" means (a) any material failure of the Company to fulfill its
obligations under this Agreement (including without limitation any reduction
of
the Base Salary, as the same may be increased during the Period of Employment,
or other element of compensation) or any material diminution to the Executive's
duties and responsibilities relating to service as an executive officer,
including the Executive ceasing to be an executive officer of a public company,
(b) the Business Office is relocated to any location which is
more
than
30 miles from the city limits of Parsippany, New Jersey, (c) during the Period
of Employment, the Executive is not the most senior financial officer of
the
Company, (d) the Company provides notification under Section III of this
Agreement that it is not extending the Agreement for an Additional Term,
(e) the
occurrence of a Corporate Transaction as defined below, or (f) failure of
a
successor to the Company to assume this Agreement in accordance with Section
XIV
below. The Executive shall provide the Company a written notice of
his intention to terminate employment pursuant to a Constructive Discharge
within 60 days after the Executive knows or has reason to know of the occurrence
of any such event which notice describes the circumstances being relied on
for
the termination with respect to this Agreement. With respect to clauses (a)
and
(b) of this paragraph, the Company shall have ten (10) days after receipt
of
such notice to remedy the event prior to the termination for Constructive
Discharge and, upon the timely remedy of such event, such event shall no
longer
constitute a basis for Constructive Discharge and the Executive's notice
of
termination pursuant to a Constructive Discharge shall be
rescinded.
iii. "Without
Cause Termination" or "Terminated Without Cause" means
termination of the Executive's employment by the Company other than due to
death, Disability, or Termination for Cause.
iv. "Resignation"
means a termination of the Executive's employment by the Executive, other
than
in connection with a Constructive Discharge or other than due to death or
Disability.
v. "Corporate
Transaction" means either:
(a) any
"person," as such term is used in Sections 13(d) and 14(d) of the Securities
and
Exchange Act, as amended (the "Exchange Act") (other than (A) the Company,
(B)
any trustee or other fiduciary holding securities under an employee benefit
plan
of the Company, and (C) any corporation owned, directly or indirectly, by
the
stockholders of the Company in substantially the same proportions as their
ownership of Company common stock), is or becomes the "beneficial owner"
(as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Company representing 50% or more of the combined voting
power
of the Company's then outstanding voting securities (excluding any person
who
becomes such a beneficial owner in connection with a transaction immediately
following which the individuals who comprise the Board immediately prior
thereto
constitute at least a majority of the Board of the entity surviving such
transaction or, if the Company or the entity surviving the transaction is
then a
subsidiary, the ultimate parent thereof); or (b) the following individuals
cease
for any reason to constitute a majority of the number of directors then serving:
individuals who, on the Effective Date, constitute the Board and any new
director (other than a director whose initial assumption of office is in
connection with an actual or threatened election contest, including but not
limited to a consent solicitation, relating to the election of directors
of the
Company) whose appointment or election by the Board or nomination for election
by the Company's stockholders was approved or recommended by a vote of at
least
one-half (1/2) of the directors then still in office who either were directors
on the Effective Date or whose appointment, election or nomination for election
was previously so approved or recommended.
(d) Conditions
to Payment and Acceleration; Section 409A.
i. Notwithstanding
anything contained herein to the contrary, to the extent required in order
to
avoid accelerated taxation and/or tax penalties under Section 409A, the
Executive shall not be considered to have terminated employment with the
Company
for purposes of this Agreement and no payments shall be due to the Executive
under Section VII of this Agreement until the Executive would be considered
to
have incurred a “separation from service” from the Company within the meaning of
Section 409A.
ii. All
payments due to the Executive under this Section VII shall be subject to,
and
contingent upon, the Executive (or his beneficiary or estate) (x) executing
a
release of claims against the Company and its affiliates (in such reasonable
form determined by the Company in its sole discretion) within forty-five
days following the Executive's separation from service (or, in the event
of a
dispute, upon resolution of the dispute, provided that such extension does
not
result in, as applicable, the disputed payments constituting deferred
compensation within the meaning of Section 409A or the imposition of additional
taxes under Section 409A) and (y) failing to revoke such release (the date
on
which the release becomes irrevocable, the "Release
Date").
iii. To
the
extent required in order to avoid accelerated taxation and/or tax penalties
under Section 409A, amounts that would otherwise be payable and benefits
that
would otherwise be provided pursuant to this Agreement during the six-month
period immediately following the Executive’s termination of employment shall
instead be paid on the first business day after the date that is six months
following the Executive’s termination of employment (or upon the Executive’s
death, if earlier).
iv. The
intent of the Parties is that payments and benefits under this Agreement
comply
with Section 409A and, accordingly, to the maximum extent permitted, this
Agreement shall be interpreted and administered to be in compliance therewith.
Each amount to be paid or benefit to be provided under this Agreement shall
be
construed as a separate identified payment for purposes of Section 409A and
any
payments described in this Agreement that are due within the "short term
deferral period" as defined in Section 409A shall not be treated as deferred
compensation unless applicable law requires otherwise.
v. The
payments due to the Executive under this Section VII shall be in lieu of
any
other severance benefits otherwise payable to the Executive under any severance
plan of the Company or its affiliates.
SECTION
VIII
OTHER
DUTIES OF THE EXECUTIVE
DURING
AND AFTER THE PERIOD OF EMPLOYMENT
(a) The
Executive shall, with reasonable notice during or after the Period of
Employment, furnish information as may be in his possession and fully cooperate
with the Company and its affiliates as may be requested in connection with
any
claims or legal action in which the Company or any of its affiliates is or
may
become a party. After the Period of Employment, the Executive shall cooperate
as
reasonably requested with the Company and its affiliates in connection with
any
claims or legal actions in which the Company or any of its affiliates is or
may become a party. The Company agrees to reimburse the Executive for any
reasonable out-of-pocket expenses incurred by Executive by reason of such
cooperation, including any loss of salary, and the Company shall make reasonable
efforts to minimize interruption of the Executive's life in connection with
his
cooperation in such matters as provided for in this paragraph.
(b) The
Executive recognizes and acknowledges that all information pertaining to
this
Agreement or to the affairs; business; results of operations; accounting
methods, practices and procedures; members; acquisition candidates; financial
condition; clients; customers or other relationships of the Company or any
of
its affiliates ("Information") is confidential and is a unique
and valuable asset of the Company or any of its affiliates. Access to and
knowledge of certain of the Information is essential to the performance of
the
Executive's duties under this Agreement. The Executive shall not during the
Period of Employment or thereafter, except to the extent reasonably necessary
in
performance of his duties under this Agreement, give to any person, firm,
association, corporation, or governmental agency any Information, except
as may
be required by law. The Executive shall not make use of the Information for
his
own purposes or for the benefit of any person or organization other than
the
Company or any of its affiliates. The Executive shall also use his best efforts
to prevent the disclosure of this Information by others. All records, memoranda,
etc. relating to the business of the Company or its affiliates, whether made
by
the Executive or otherwise coming into his possession, are confidential and
shall remain the property of the Company or its affiliates.
(c) (i) During
the Period of Employment and for a two (2) year period following any termination
of employment (the "Restricted Period"), the Executive shall
not use his status with the Company or any of its affiliates to obtain loans,
goods or services from another organization on terms that would not be available
to him in the absence of his relationship to the Company or any of its
affiliates.
(ii) During
the Restricted Period, the Executive shall not make any statements or perform
any acts intended to have the effect of advancing the interest of any existing
competitors (or any entity the Executive knows to be a prospective competitor)
of the Company or any of its affiliates or in any way injuring the interests
of
the Company or any of its affiliates. During the Restricted Period, the
Executive, without prior express written approval by the Board, shall not
engage
in, or directly or indirectly (whether for compensation or otherwise) own
or
hold
proprietary interest in, manage, operate, or control, or join or participate
in
the ownership, management, operation or control of, or furnish any capital
to or
be connected in any manner with, any party which competes in any way or manner
with the business of the Company or any of its affiliates, as such business
or
businesses may be conducted from time to time, either as a general or limited
partner, proprietor, common or preferred shareholder (other than being less
than
a 5% shareholder in a publicly traded company), officer, director, agent,
employee, consultant, trustee, affiliate, or otherwise. The Executive
acknowledges that the Company's and its affiliates' businesses are conducted
nationally and internationally and agrees that the provisions in the foregoing
sentence shall operate throughout the United States and those countries in
the
world where the Company then conducts business or has a plan to conduct
business.
(iii) During
the Restricted Period, the Executive, without express prior written approval
from the Board, shall not solicit any members or the then-current clients
of the
Company or any of its affiliates for any existing business of the Company
or any
of its affiliates or discuss with any employee of the Company or any of its
affiliates information or operation of any business intended to compete with
the
Company or any of its affiliates.
(iv) During
the Restricted Period, the Executive shall not interfere with the employees
or
affairs of the Company or any of its affiliates or solicit or induce any
person
who is an employee of the Company or any of its affiliates to terminate any
relationship such person may have with the Company or any of its affiliates,
nor
shall the Executive during such period directly or indirectly engage, employ
or
compensate, or cause any person with which the Executive may be affiliated,
to
engage, employ or compensate, any employee of the Company or any of its
affiliates. The Executive hereby represents and warrants that the Executive
has
not entered into any agreement, understanding or arrangement with any employee
of the Company or any of its affiliates pertaining to any business in which
the
Executive has participated or plans to participate, or to the employment,
engagement or compensation of any such employee.
(v) For
the
purposes of this Agreement, proprietary interest means legal or equitable
ownership, whether through stock holding or otherwise, of an equity interest
in
a business, firm or entity or ownership of more than 5% of any class of equity
interest in a publicly-held company and the term "affiliate" shall include
without limitation all subsidiaries and material licensees of the
Company.
(d) The
Executive hereby acknowledges that damages at law may be an insufficient
remedy
to the Company if the Executive violates the terms of this Agreement and
that
the Company shall be entitled, upon making the requisite showing, to preliminary
and/or permanent injunctive relief in any court of competent jurisdiction
to
restrain the breach of or otherwise to specifically enforce any of the covenants
contained in this Section VIII without the necessity of showing any actual
damage or that monetary damages would not provide an adequate remedy. Such
right
to an injunction shall be in addition to, and not in limitation of, any other
rights or remedies the Company may have. Without limiting the generality
of
the
foregoing, neither party shall oppose any motion the other party may make
for
any expedited discovery or hearing in connection with any alleged breach
of this
Section VIII.
(e) The
period of time during which the provisions of this Section VIII shall be
in
effect shall be extended by the length of time during which the Executive
is in
breach of the terms hereof as determined by any court of competent jurisdiction
on the Company's application for injunctive relief.
(f) The
Executive agrees that the restrictions contained in this Section VIII are
an
essential element of the compensation the Executive is granted hereunder
and but
for the Executive's agreement to comply with such restrictions, the Company
would not have entered into this Agreement.
SECTION
IX
INDEMNIFICATION
The
Company shall indemnify the Executive to the fullest extent permitted by
the
laws of the state of the Company's incorporation in effect at that time,
or the
certificate of incorporation and by-laws of the Company, whichever affords
the
greater protection to the Executive (including payment of expenses in advance
of
final disposition of a proceeding).
SECTION
X
CERTAIN
TAXES
Anything
in this Agreement or in any other plan, program or agreement to the contrary
notwithstanding and except as set forth below, in the event that (i) the
Executive becomes entitled to any benefits or payments under Section VII
hereof
and (ii) it shall be determined that any payment or distribution by the Company
to or for the benefit of the Executive (whether paid or payable or distributed
or distributable pursuant to the terms of this Agreement or otherwise, but
determined without regard to any additional payments required under this
Section
X) (a "Payment") would be subject to the excise tax imposed by
Section 4999 of the Internal Revenue Code of 1986, as amended, or any interest
or penalties are incurred by the Executive with respect to such excise tax
(such
excise tax, together with any such interest and penalties, hereinafter
collectively referred to as the "Excise Tax"), then the
Executive shall be entitled to receive an additional payment (a
"Gross-Up Payment") in an amount such that after payment by the
Executive of all taxes (including any interest or penalties imposed with
respect
to such taxes), including, without limitation, any income taxes (and any
interest and penalties imposed with respect thereto) and Excise Tax imposed
upon
the Gross-Up Payment, the Executive retains an amount of the Gross-Up Payment
equal to the Excise Tax imposed upon the Payments. Notwithstanding the foregoing
provisions of this Section X, if it shall be determined that the Executive
is
entitled to a Gross-Up Payment, but that the Payments do not exceed 110%
of the
greatest amount (the "Reduced Amount") that could be paid to
the
Executive
such that the receipt of Payments would not give rise to any Excise Tax,
then no
Gross-Up Payment shall be made to the Executive and the Payments, in the
aggregate, shall be reduced to the Reduced Amount, provided, however, that
the
payments or benefits to be eliminated in effecting such reduction shall be
agreed upon between the Company and the Executive. All determinations required
to be made under this Section X, including whether and when a Gross-Up Payment
is required and the amount of such Gross-Up Payment and the assumptions to
be
utilized in arriving at such determination, shall be made by Deloitte &
Touche LLP or such other certified public accounting firm as may be designated
by the Company. In no event will the Gross-Up Payment be made later
than forty-five (45) days following the date on which the Executive remits
the
Excise Tax to the Internal Revenue Service.
SECTION
XI
MITIGATION
The
Executive shall not be required to mitigate the amount of any payment provided
for hereunder by seeking other employment or otherwise, nor shall the amount
of
any such payment be reduced by any compensation earned by the Executive as
the
result of employment by another employer after the date the Executive's
employment hereunder terminates.
SECTION
XII
WITHHOLDING
TAXES
The
Executive acknowledges and agrees that the Company may directly or indirectly
withhold from any payments under this Agreement all federal, state, city
or
other taxes that shall be required pursuant to any law or governmental
regulation.
SECTION
XIII
EFFECT
OF PRIOR AGREEMENTS
Except
as
otherwise specifically set forth herein, this Agreement shall supersede any
prior agreements between the Company and the Executive hereof, and any such
prior agreement shall be deemed terminated without any remaining obligations
of
either party thereunder, provided that this sentence shall not be interpreted
to
terminate the Executive's existing participation in various stock-based
compensation programs.
SECTION
XIV
CONSOLIDATION,
MERGER OR SALE OF ASSETS
Nothing
in this Agreement shall preclude the Company from consolidating or merging
into
or with, or transferring all or substantially all of its assets to, another
corporation or other entity which assumes this Agreement and all obligations
and
undertakings of the Company hereunder. If (i) there is a merger, consolidation,
sale of all or substantially all of the
Company's
assets, or other business combination involving the Company, or (ii) all
or
substantially all of the stock of the Company is acquired by another company,
the term "the Company" shall mean the successor to the Company's business
or
assets referred to in (i) above or such company referred to in (ii) above,
and
this Agreement shall continue in full force and effect. Notwithstanding the
foregoing, the Company shall require any successor thereto (whether direct
or
indirect, by purchase, merger, consolidation, or otherwise), by agreement
in
form and substance reasonably satisfactory to the Executive to expressly
assume
and agree to perform this Agreement in the same manner and to the same extent
that the Company would be required to perform it if no such succession had
taken
place.
SECTION
XV
MODIFICATION
This
Agreement may not be modified or amended except in writing signed by the
parties. No term or condition of this Agreement shall be deemed to have been
waived except in writing by the party charged with waiver. A waiver shall
operate only as to the specific term or condition waived and shall not
constitute a waiver for the future or act on anything other than that which
is
specifically waived.
SECTION
XVI
GOVERNING
LAW
This
Agreement has been executed and delivered in the State of New Jersey and
its
validity, interpretation, performance and enforcement shall be governed by
the
internal laws of that state.
SECTION
XVII
ARBITRATION
(a) Any
controversy, dispute or claim arising out of or relating to this Agreement
or
the breach hereof which cannot be settled by mutual agreement (other than
with
respect to the matters covered by Section VIII for which the Company may,
but
shall not be required to, seek injunctive relief) shall be finally settled
by binding arbitration in accordance with the Federal Arbitration Act (or
if not
applicable, the applicable state arbitration law) as follows: Any party who
is
aggrieved shall deliver a notice to the other party setting forth the specific
points in dispute. Any points remaining in dispute twenty (20) days after
the
giving of such notice may be submitted to arbitration in New York, New York,
to
the American Arbitration Association, before a single arbitrator appointed
in
accordance with the arbitration rules of the American Arbitration Association,
modified only as herein expressly provided. After the aforesaid twenty (20)
days, either party, upon ten (10) days notice to the other, may so submit
the
points in dispute to arbitration. The arbitrator may enter a default decision
against any party who fails to participate in the arbitration
proceedings.
(b) The
decision of the arbitrator on the points in dispute shall be final, unappealable
and binding, and judgment on the award may be entered in any court having
jurisdiction thereof.
(c) Except
as
otherwise provided in this Agreement, the arbitrator shall be authorized
to
apportion its fees and expenses and the reasonable attorneys' fees and expenses
of any such party as the arbitrator deems appropriate. In the absence of
any
such apportionment, the fees and expenses of the arbitrator shall be borne
equally by each party, and each party shall bear the fees and expenses of
its
own attorney.
(d) The
parties agree that this Section XVII has been included to rapidly and
inexpensively resolve any disputes between them with respect to this Agreement,
and that this Section XVII shall be grounds for dismissal of any court action
commenced by either party with respect to this Agreement, other than
post-arbitration actions seeking to enforce an arbitration award. In the
event
that any court determines that this arbitration procedure is not binding,
or otherwise allows any litigation regarding a dispute, claim, or controversy
covered by this Agreement to proceed, the parties hereto hereby waive any
and
all right to a trial by jury in or with respect to such litigation.
(e) The
parties shall keep confidential, and shall not disclose to any person, except
as
may be required by law, the existence of any controversy hereunder, the referral
of any such controversy to arbitration or the status or resolution
thereof.
SECTION
XVIII
SURVIVAL
Sections
VIII, IX, X, XI, XII and XIII shall continue in full force in accordance
with
their respective terms notwithstanding any termination of the Period of
Employment.
SECTION
XIX
SEPARABILITY
All
provisions of this Agreement are intended to be severable. In the event any
provision or restriction contained herein is held to be invalid or unenforceable
in any respect, in whole or in part, such finding shall in no way affect
the
validity or enforceability of any other provision of this Agreement. The
parties
hereto further agree that any such invalid or unenforceable provision shall
be
deemed modified so that it shall be enforced to the greatest extent permissible
under law, and to the extent that any court of competent jurisdiction determines
any restriction herein to be unreasonable in any respect, such court may
limit
this Agreement to render it reasonable in the light of the circumstances
in
which it was entered into and specifically enforce this Agreement as
limited.
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the
Effective Date.
/s/
Xxxx Xxxxxxxxxx
By:
Xxxx
Xxxxxxxxxx
Title: Executive
Vice
President, Human Resources
/s/
Xxxxx X. Xxxxxxx
Xxxxx
X.
Xxxxxxx
Each
of
the undersigned subsidiaries of the Company hereby guarantees to the Executive
the prompt and complete payment and performance by the Company when due of
the
Company’s obligations to make payments due to the Executive that are delayed in
accordance with Section VII(d)(iii) in consideration for the services the
Executive renders to such subsidiary in his role as Executive Vice President
and
Chief Financial Officer of Avis Budget Group, Inc.; provided that, as to
any
subsidiary, this guarantee shall be null and void and have no effect whatsoever
with respect to such subsidiary for any period (including as of the Effective
Date) during which this guarantee conflicts with or constitutes a breach
of any
obligation of such subsidiary under any currently applicable agreement or
other
obligation applicable to such subsidiary or any applicable law, rule or
regulation (whether currently applicable or applicable at any time in the
future).
IN
WITNESS WHEREOF, the undersigned have executed this Guarantee as of the
Effective Date.
AVIS
BUDGET CAR RENTAL,
LLC
AVIS
BUDGET HOLDINGS, LLC
AVIS
BUDGET FINANCE, INC.
AVIS
CAR RENTAL GROUP,
LLC
ARACS
LLC
AVIS
RENT A CAR SYSTEM,
LLC
AVIS
ASIA AND PACIFIC,
LIMITED
AVIS
CARIBBEAN, LIMITED
AVIS
ENTERPRISES, INC.
AVIS
GROUP HOLDINGS, LLC
AVIS
INTERNATIONAL, LTD.
PF
CLAIMS MANAGEMENT, LTD
AB
CAR RENTAL SERVICES,
INC.
AVIS
OPERATIONS, LLC
BGI
LEASING, INC.
RUNABOUT,
LLC
WIZARD
SERVICES, INC.
/s/
Xxxx Xxxxxxxxxx
By:
Xxxx
Xxxxxxxxxx
Title: Executive
Vice
President, Human Resources
BUDGET
RENT A CAR SYSTEM,
INC.
BUDGET
TRUCK RENTAL, LLC
PR
HOLDCO, INC.
/s/ Xxxxxx
Xxxxxxxxx
By:
Xxxxxx
Xxxxxxxxx
Title: Senior
Vice
President, Human Resources
