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EXHIBIT 10.21
BUDGET GROUP, INC.
EXECUTIVE AGREEMENT
This Executive Agreement ("Agreement") is dated as of January 1,
1998, and is entered into by and between ______________ ("Executive") and Budget
Group, Inc.("Budget"). Executive and Budget hereby agree to the following terms
and conditions:
1. Purpose of Agreement. The purpose of this Agreement is to
provide that Executive may become entitled to receive additional benefits in the
event of his termination under certain circumstances. It is believed that the
existence of these potential benefits will benefit Budget by discouraging
turnover among executives with Agreements, as well as causing such executives to
be more able to respond to the possibility of a "Change in Control" (as defined
in Section 9) without being influenced by the potential effect of a Change in
Control on their job security.
2. Other Rights and Obligations. The rights and obligations of
Executive with respect to his employment by Budget shall be whatever rights and
obligations are negotiated between Budget and Executive from time to time. The
existence of this Agreement, which deals only with certain rights and
obligations subsequent to a termination, shall not be treated as raising any
inference with respect to what rights and obligations exist prior to a
termination, or, except as specifically addressed in this Agreement, what rights
and obligations may exist after termination. Further, Executive shall not, at
any time after termination, be obligated to seek other employment in mitigation
of the amounts payable or other benefits provided for under any provision of
this Agreement and the obtaining of any such other employment shall in no event
effect any reduction of Budget's obligation to make the payments and to provide
the benefits required to be made and provided under this Agreement, except to
the extent provided for in Paragraph 7(c)(4).
3. Benefits Payable Upon Qualifying Termination and Execution
of a Release Agreement.
(a) Subject to Section 3(b), if a Qualifying Termination (as
defined in Section 4 below) occurs, the benefits described in Sections
6 and 7, shall become payable to Executive. In that event, and
notwithstanding Section 11, this Agreement shall remain in effect until
Executive receives the various benefits to which he has become entitled
under the terms of this Agreement. If Executive's employment terminates
and such termination is not a Qualifying Termination, then this
Agreement shall be of no further force or effect.
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(b) Notwithstanding any other provision of this Agreement,
unless Executive executes a Release Agreement (prepared by Budget, and
substantially in the form set forth in Exhibit I) within 21 days after
a Qualifying Termination and receipt of the Release Agreement (and does
not revoke the Release Agreement within 7 days after signing it), (1)
no benefits under Section 6 or Section 7(d), (e), (f) or (g) of this
Agreement shall be paid or provided under any circumstances, (2) the
benefits described in Section 7(c) and (e) shall only be paid or
provided for 35 days after the Release Agreement is provided to
Executive or until the Release Agreement is signed and subsequently
revoked (if earlier), and (3) this Agreement shall be of no further
force and effect. Notwithstanding anything in this Agreement to the
contrary, if Executive executes the Release Agreement and then fails or
refuses to comply with his obligations as provided for in Sections 2
and 3 of the Release Agreement, or violates any of his representations
and warranties as provided for in Sections 4, 5 and 6 of the Release
Agreement, Budget's obligations as provided for in this Agreement shall
immediately cease and terminate.
4. Qualifying Termination. If, during the term of this
Agreement, Executive's employment terminates, such termination shall be
considered a Qualifying Termination if any of the following events occurs:
(a) Whether or not a Change in Control occurs, Executive
voluntarily terminates employment, for Good Reason, within one year
after the event giving rise to Good Reason or Executive's employment
terminates due to death or disability during such one year period. For
purposes of this Agreement, "Disability" shall be defined in accordance
with Budget's long term disability plan and "Good Reason" shall mean
the occurrence of one of the following events without Executive's prior
written consent:
(1) The assignment to Executive of any duties
inconsistent in any material respect with Executive's
position (including status, offices, titles and reporting
requirements), authority, duties or responsibilities as
they existed in their most significant form immediately
prior to the above-referenced assignment or any other
action by Budget which results in a material diminution in
such position (including status, offices, titles and
reporting requirements), authority, duties or
responsibilities as they existed in their most significant
form immediately prior to the above-
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referenced action, excluding for purposes of this paragraph
(1), (x) an assignment of substantially equivalent position,
authority, duties and responsibilities; or (y) an isolated,
insubstantial and inadvertent action not taken in bad faith
and which is remedied by Budget promptly after receipt of
notice thereof given by Executive;
(2) Any reduction in (i) Executive's base salary, (ii)
Executive's ability to participate in or to receive benefits
from (without any incremental cost to Executive) incentive
plans, employee benefit plans, expense reimbursement policies,
or other fringe benefits, including office and support staff,
or paid vacations (excluding changes by Budget with respect to
any such benefits which both (A) apply to all executives and
(B) provide Executive with other benefits which are
substantially equivalent in the aggregate to the prior benefit
package), or (iii) if a Change in Control occurs, incentive
payments made pursuant to any incentive program (which shall
be deemed to be reduced if the annual incentive payments are
less than the average annual incentive payments for the three
fiscal years preceding the Change in Control); provided that,
(x) an isolated, insubstantial, and inadvertent reduction in
an element of Executive's total compensation not occurring in
bad faith and which is promptly remedied after notice by
Executive shall not be deemed a violation of this paragraph
(2), and (y) a reduction in one element of Executive's total
compensation shall not be deemed a violation of this paragraph
(2) if a counterbalancing increase in another element of
Executive's total compensation occurs (the determination of
whether the increase is counterbalancing shall be determined
by Executive in good faith); and
(b) Whether or not a Change in Control occurs, Executive is
involuntarily terminated without "Cause" during the term of this Agreement. For
purposes of this Section, "Cause" shall mean (1) a material act or acts of
dishonesty by Executive in connection with his employment; (2) conviction of a
felony or other crime involving moral turpitude; or (3) Executive's willful or
gross negligent failure to perform Executive's duties if such failure results in
demonstrable injury or damage to Budget.
(c) Executive terminates his employment for any reason
whatsoever, including termination due to death or disability,
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provided that the Termination Date occurs within one year after a
Change in Control occurs.
5. Notice of Termination. Any termination by Executive for
Good Reason, by Budget for Cause, or by Executive without any reason following a
Change in Control (other than termination due to Executive's death or
disability) shall be communicated by Notice of Termination to the other party
hereto given in accordance with Section 16. For purposes of this Agreement, a
"Notice of Termination" means a written notice which (i) indicates the specific
termination provision in this Agreement relied upon, (ii) to the extent
applicable, sets forth in reasonable detail the facts and circumstances claimed
to provide a basis for termination of Executive's employment under the provision
so indicated and (iii) if the date of termination ("Termination Date") is other
than the date of receipt of such notice, specifies the Termination Date. The
Termination Date shall be the date of receipt of the Notice or such later date
specified in the Notice, which shall not be later than 90 days after the giving
of such Notice. The failure by Executive or Budget to set forth in the Notice of
Termination any fact or circumstance which contributes to a showing of Good
Reason or Cause shall not waive any right of Executive or Budget hereunder or
preclude Executive or Budget from asserting such fact or circumstance in
enforcing Executive's or Budget's rights hereunder.
6. Severance Payment. Subject to Section 3(b), in the event of
a Qualifying Termination, Budget shall pay Executive an amount equal to 3 times
the sum of (1) Executive's highest annual base salary rate in effect since
September 1, 1997 plus (2) the greater of i) annual average incentive payments
and bonuses (including those that are performance based, discretionary or
otherwise, but excluding those paid under any long-term incentive and stock
option plans) paid to Executive during the three full fiscal years preceding the
Termination Date (provided that, if Executive was not employed for three full
fiscal years, the incentive payments and bonuses shall be based on the number of
full fiscal years during which Executive was employed); and ii) the Executive's
annual target bonus or incentive opportunity established for the year in which
the Executive's Termination Date occurs. The amounts due hereunder ("Severance
Payment") shall be paid in cash to Executive in a single lump sum within 30 days
of the Termination Date and shall be in lieu of any other severance payment that
Executive might otherwise be entitled to from Budget under the terms of any
other severance pay arrangement or employment agreement.
7. Other Benefits. Subject to Section 3(b), in the event of a
Qualifying Termination, Executive shall be entitled to:
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(a) Receive his base salary and a pro rata portion of his
target bonus through the Termination Date, less applicable payroll deductions.
(b) Receive any unused vacation and holiday pay through the
Termination Date, less applicable payroll deductions.
(c) (1) Except as provided by law (including any
nondiscrimination rules) or by the relevant insurance carrier (after reasonable
efforts by the Company to provide coverage), continue his participation (and,
where applicable, participation of his eligible dependents) in the medical,
dental, life and disability insurance benefit programs of Budget which had been
made available to Executive before the Qualifying Termination. This ability to
participate shall continue for a period of 36 months after the Termination Date
("Completion Date"); if Executive dies prior to the Completion Date, his
dependents, where applicable, may continue participation until the Completion
Date. In order to so participate, Executive (or dependents, where applicable)
shall pay to Budget (with grace periods analogous to COBRA) the employee portion
of the cost of such benefits (such portion to be determined in the same manner
as for any other executive participants). Thereafter, Executive (or his
dependents, where applicable) shall be entitled to elect COBRA coverage.
(2) If the law or the insurance carrier prevents Executive from
participating in a program described in this clause (c), Budget
shall make monthly cash payments to Executive (or his dependents,
where applicable) equal to 102% of the entire monthly premium
(excluding the employee portion) applicable to such program until
the Completion Date. Executive (or his dependents, where applicable)
shall be permitted to elect COBRA coverage for such program (if
allowed under the program).
(3) When coverage under each applicable plan expires, Executive
(or his dependents, where applicable) shall retain the right to
purchase individual conversion policies with respect to any or all
of the benefits provided under said benefit plans to the maximum
extent permitted by law or by the group insurance policies
providing such benefits.
(4) Notwithstanding anything contained herein to the contrary,
the benefits provided for in this subparagraph (c), shall cease
prior to the Completion Date in the event Executive has available
substantially similar benefits at a comparable cost from a
subsequent employer.
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(d) Receive contributions under the Budget Defined Contribution
Retirement Plan and Budget SavingsPlus (401(k)) Plan (the "Retirement
Plans") if required by the terms for the year in which the Qualifying
Termination occurs. In addition, to the extent any contributions to the
Retirement Plans are not made on behalf of Executive, but would have
been made had Executive remained employed until and including the
Completion Date and made the maximum Section 401(k) contributions under
the Plan, Budget shall pay directly to Executive cash in an amount and
at the times consistent with contributions made for other employees of
Budget and in accordance with the guidelines of the Retirement Plans.
Other than the foregoing, Executive is entitled to no other
contribution on Executive's behalf by Budget to any Budget pension or
other retirement plan.
(e) Use of two (2) current model year luxury vehicles (the
"Vehicles") through the earlier of the Completion Date or Executive's
death; if Executive dies prior to the Completion Date, his spouse, if
any, may continue to use one (1)such Vehicle through the Completion
Date. During such period, Budget shall (1) provide Executive with
collision (with no deductible if the accident is not the fault of
Executive and with a $250 deductible if the accident is the fault of
Executive) and comprehensive automobile coverage during the time he has
the Vehicles, as well as primary automobile liability coverage in the
amount of $50,000 bodily injury per person, $100,000 bodily injury per
accident and $25,000 property damage per accident, and (2) pay for
reasonable maintenance costs incurred by Executive with respect to the
Vehicles, including but not limited to periodic oil changes.
(f) Receive tax preparation and financial planning services
through the Completion Date, which services shall be provided by a
vendor of Budget's choice.
(g) Receive professional outplacement services, which services
shall be provided by a vendor of Budget's choice.
In the event of Executive's death, any cash payments due hereunder shall be made
to the beneficiary or beneficiaries so designated by Executive in a writing
delivered to the Secretary of Budget. If no such beneficiary has been so
designated, or if no designated beneficiary is in existence at the date of
Executive's death, payment shall be made to Executive's surviving spouse, if
any, or to his estate if he has no surviving spouse.
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8. Gross Up Provision.
(a) If any payment or benefit received or to be received by
Executive in connection with a Change in Control of Budget or the
termination of Executive's employment (whether payable pursuant to the
terms of this Agreement, a stock option plan or any other plan or
arrangement with Budget or with any person whose actions result in a
Change in Control of Budget or with any person affiliate with Budget or
such person (together with the Severance Payment, the "total payments")
will be subject to the excise tax imposed by Section 4999 of the Code,
Budget will pay to Executive, within 30 days of any payments giving
rise to the excise tax, an additional amount (the "gross up payment")
such that the net amount retained by Executive, after deduction of any
excise tax on the total payments and any federal and state and local
income and employment tax and excise tax on the gross up payment
provided for in this section, will equal the total payments.
(b) For purposes of determining the amount of the gross-up
payment, Executive will be deemed to pay federal income taxes at the
highest marginal rate of federal income taxation in the calendar year
that the payment is to be made, and state and local income taxes at the
highest marginal rate of taxation in the state and locality of
Executive's residence on the date of termination or the date that
excise tax is withheld by Budget, net of the maximum reduction in
federal income taxes that could be obtained by deducting such state and
local taxes.
(c) For purposes of determining whether any of the total
payments would not be deductible by Budget and would be subject to the
excise tax, and the amount of such excise tax, (1) total payments will
be treated as "parachute payments" within the meaning of Section
380G(b)(2) of the Code, and all parachute payments in excess of the
base amount within the meaning of Section 280G(b)(3) will be treated as
subject to the excise tax unless, in the opinion of tax counsel
selected by Budget's independent auditors prior to the Change in
Control and acceptable to Executive, such total payments (in whole or
in part) are not parachute payments, or such parachute payments in
excess of the base amount (in whole or in part) are otherwise not
subject to the excise tax, and (2) the value of any non-cash benefits
or any deferred payment will be determined by Budget's independent
auditors in accordance with Sections 280B(d)(3) and (4) of the Code.
(d) If the excise tax is subsequently determined to be less
than the amount originally taken into account hereunder,
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Executive will repay to Budget, when such reduction in excise tax is
finally determined, the portion of the gross-up payment attributable to
such reduction plus interest on the repayment at the rate provided in
Section 1274(b)(2)(B) of the Code. If the excise tax is determined to
exceed the amount originally taken into account hereunder (including by
reason of any payment the existence or amount of which cannot be
determined at the time of the gross-up payment), Budget will make an
additional gross-up payment in respect of such excess (plus any
interest payable with respect to such excess) when such excess is
finally determined.
9. Change in Control. For the purpose of this Agreement, a
"Change in Control" shall mean:
(a) The acquisition by any individual, entity or group
(within the meaning of Section 13(d)(3) or 14(d)(2) of the Securities
Exchange of Xxx 0000, as amended (the "Exchange Act")) (a "Person") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated
under the Exchange Act) of 30% or more of either (1) the then
outstanding shares of common stock of Budget (the "Outstanding Budget
Common Stock") or (2) the combined voting power of then outstanding
voting securities of Budget entitled to vote generally in the election
of directors (the "Outstanding Budget Voting Securities"); provided,
however, that the following acquisitions shall not constitute a Change
in Control: (1) any acquisition directly from Budget or a corporation
controlled by Budget (the "Budget Group"), except that an acquisition
by virtue of the exercise of a conversion privilege shall not be
considered within this paragraph unless the converted security was
itself acquired directly from the Budget Group, (2) any acquisition by
the Budget Group, (3) any acquisition by any employee benefit plan (or
related trust) sponsored or maintained by the Budget Group or (4) any
acquisition by any corporation pursuant to a reorganization, merger or
consolidation, if, following such reorganization, merger or
consolidation, the conditions described in paragraphs (1) and (2) of
subsection (c) of this Section 9 are satisfied; or
(b) Individuals who, as of the date hereof, constitute the
Board of Budget (the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided, however, that
any individual who becomes a director subsequent to the date hereof
whose election, or nomination for election by Budget's shareholders,
was approved by a vote of at least a majority of the directors of the
Incumbent Board (including Board members previously elected pursuant to
this proviso) shall be considered as though such individual were a
member of the Incumbent Board; but excluding, for this purpose, any
such individual whose
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initial assumption of office occurs as a result of either an actual or
threatened election contest (as such terms are used in Rule 14a-11 of
Regulation 14A promulgated under the Exchange Act) or other actual or
threatened solicitation of proxies or consent by or on behalf of a
Person other than the Board; or
(c) Approval by the shareholders of Budget of a
reorganization, merger or consolidation (a "transaction"), unless,
following such transaction in each case, (1) more than 80% of,
respectively, the then outstanding shares of common stock of the
corporation resulting from such transaction and the combined voting
power of the then outstanding voting securities of such corporation
entitled to vote generally in the election of directors is then
beneficially owned, directly or indirectly, by all or substantially all
of the individuals and entities who were the beneficial owners,
respectively, of the Outstanding Budget Common Stock and Outstanding
Budget Voting Securities immediately prior to such transaction and (2)
no Person (excluding the Budget Group, any employee benefit plan (or
related trust) of Budget Group and any Person beneficially owning,
immediately prior to such transaction, directly or indirectly, 20% or
more of the Outstanding Budget Common Stock or Outstanding Budget
Voting Securities, as the case may be) beneficially owns, directly or
indirectly, 20% or more of, respectively, the then outstanding shares
of common stock of the corporation resulting from such transaction or
the combining voting power of the then outstanding voting securities of
such corporation entitled to vote generally in the election of
directors; or
(d) Approval by the shareholders of Budget of (1) a
complete liquidation or dissolution of Budget or (2) the sale or other
disposition of all or substantially all of the assets of Budget, unless
such assets are sold to a corporation and following such sale or other
disposition, the conditions described in paragraphs (1) and (2) of
subsection (C) of this Section 9 are satisfied.
10. Waiver of Invalidity; No Offset.
(a) Inasmuch as the injury caused to Executive in the
event his employment is terminated is difficult or incapable of
accurate estimation at the date of this Agreement, the amounts provided
to be paid hereunder are intended to be severance compensation and not
a penalty, and therefore constitute a good faith forecast of the harm
which might be expected to be caused to Executive. Accordingly, Budget
waives any right to assert against Executive the invalidity of any
payment hereunder by reason of Executive's failure to seek other
employment or
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otherwise, and to reduce the amount of any payment hereunder by reason
of any compensation earned by Executive as the result of employment by
another employer after the Termination Date or otherwise.
(b) Budget's obligation to make the payments provided for
in this Agreement and otherwise to perform its obligations hereunder
shall not be affected by any set-off, counterclaim, recoupment, defense
or other claim, right or action which Budget may have against Executive
or others.
11. Term of Agreement. This Agreement shall be effective
from the date hereof through December 31, 2000 and may not be amended or
terminated during such period except pursuant to an instrument in writing
executed by all of the parties hereto. The Board of Directors of Budget may, in
its sole discretion and for any reason, provide written notice of termination
(or amendment), effective as of the then applicable expiration date, to
Executive no later than six (6) months before the expiration date of this
Agreement. If written notice is not so provided, this Agreement shall be
automatically extended for an additional twelve months past the applicable
expiration date. This Agreement shall continue to be automatically extended for
an additional twelve months at the end of such twelve month period and each
subsequent twelve month period unless notice is given in the manner described in
this Section. Notwithstanding the preceding sentences of this Agreement, this
Agreement shall automatically be extended past an otherwise applicable
expiration date if a Change in Control, or an event giving rise to Good Reason
has occurred prior to that date. The extension referred to in the preceding
sentence shall be for one year after the Change in Control, or an event giving
rise to Good Reason. For purposes hereof, the "expiration date" shall be the
last effective date of this Agreement, after having given effect to all of the
extension provisions of this Section.
12. Successors. The rights and obligations of Budget
under this Agreement shall inure to the benefit of and shall be binding upon the
successors and assigns of Budget.
13. Governing Law. Except to the extent that federal law
is applicable, this Agreement is made and entered into in the State of Florida,
and the laws of Florida shall govern its validity and interpretation in the
performance by the parties hereto of their respective duties and obligations
hereunder.
14. Entire Agreement. Except as provided in a written
benefit plan of Budget, this Agreement (and the Release Agreement) constitute
the entire agreement between the parties respecting the benefits due Executive
(and the obligations of Executive) in the event
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of a Qualifying Termination, and there are no representations, warranties or
commitments, other than those set forth herein, which relate to such benefits.
This is an integrated agreement. No provision of this Agreement may be amended
or waived except by written agreement signed by the parties.
15. Arbitration. Any and all controversies, claims or
disputes arising out of or in any way relating to this Agreement shall be
resolved by final and binding arbitration in ______________________ before a
single arbitrator licensed to practice law and in accordance with the Commercial
Arbitration Rules of the American Arbitration Association (the "AAA"). The
arbitration shall be commenced by filing a demand for arbitration with the AAA
within sixty (60) days after the occurrence of the facts giving rise to any such
controversy, claim or dispute. The arbitrator shall decide all issues relating
to arbitrability. If the arbitrator determines that (x) Budget has breached this
Agreement or (y) Budget was unjustified in failing to make the payments required
under this Agreement to Executive, Budget shall pay to Executive, his costs and
expenses, including attorneys' fees, associated with any such arbitration
proceeding and, as liquidated damages and not as a penalty, an additional amount
equal to 10% of the amount involved in the arbitration with respect to this
Agreement.
16. Notices. Any notice or communications required or
permitted to be given to the parties hereto shall be delivered personally or be
sent by United States registered or certified mail, postage prepaid and return
receipt requested, and addressed or delivered to the last known address of
Budget or Executive, as appropriate, or to such other address as either party
may direct by notice to the other pursuant to this section.
17. Captions. The captions of this Agreement are inserted
for convenience and do not constitute a part hereof.
18. Severability.
(a) The parties agree that Section 3(b) of this Agreement
and Sections 2 through 6 of the Release Agreement are a material part
of this Agreement. The parties believe that all provisions of this
Agreement (including Section 3(b)) and the Release Agreement (if
executed and not revoked within 7 days after execution) are legal,
binding and fully enforceable.
(b) If Section 3(b) of this Agreement or Section 2, 3, 4,
5 or 6 of the Release Agreement (or any material part thereof) is
invalid, then this Agreement and the Release Agreement shall be null
and void.
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(c) Subject to subsection (b) above, in case any one or
more of the provisions contained in this Agreement shall for any reason
be held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality or unenforceability shall not affect any other
provision of this Agreement, but this Agreement shall be construed as
if such invalid, illegal or unenforceable provision had never been
contained herein and there shall be deemed substituted such other
provision as will most nearly accomplish the intent of the parties to
the extent permitted by the applicable law.
19. Counterparts. This Agreement may be executed in two
or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same Agreement.
IN WITNESS HEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered as of the day and year first written above.
BUDGET GROUP, INC.
By
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EXECUTIVE
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EXHIBIT I
RELEASE AGREEMENT
THIS RELEASE AGREEMENT (hereinafter "Agreement") is made and entered into by and
between Budget Group, Inc. and its parent and subsidiaries (hereinafter
"Budget") and the undersigned (hereinafter "Executive"), and shall be effective
as of the date of its execution.
FOR VALUABLE CONSIDERATION, the receipt and sufficiency of which is hereby
acknowledged, the parties hereby agree as follows:
1. That Budget shall, in full discharge of any and all of its
obligations to Executive, pay to Executive the benefits set
forth in the executive agreement between Budget and Executive
("Executive Agreement").
2. That in consideration for entering into this Agreement, and
for the monies and benefits described in Section 1 above,
Executive:
(a) Except as specifically provided in Sections 7(b) and
7(d) of the Executive Agreement, waives any right to
vacation and/or holiday pay and, in addition, waives
any right to incentive compensation, including
without limitation incentive compensation under the
Annual and the Long Term Incentive Plans.
(b) Agrees to cooperate fully with Budget to assure a
smooth transition of responsibilities and projects
and to otherwise provide Budget with his full and
complete cooperation and assistance for one year
after the Termination Date. Such cooperation and
assistance shall be provided by Executive at his
reasonable convenience and shall not require more
than three (3) consecutive days, or more than ten
(10) cumulative days, without payment by Budget of
some form of reasonable compensation to Executive
and/or Executive's future employer for such excess
time; provided, however, that such cooperation and
assistance may be obtained by subpoena served upon
Executive if such a subpoena is required or deemed
necessary by Budget as a result of the actions of any
future employer of Executive. Executive shall
cooperate and assist Budget by providing and
communicating to, or for the benefit of, the
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senior management of Budget or their designated
representatives, any and all knowledge or information
acquired by Executive during, or as a result of, his
employment with Budget. Such cooperation and
assistance shall include, without limitation, the
provision of any such information or knowledge to
Budget's accountants or attorneys in preparation of
or during the course of any audit process or legal
procedure in which Budget may be, or may become,
involved. Any travel, lodging and out-of-pocket
expenses incurred by Executive in fulfilling this
obligation shall be reimbursed to Executive by Budget
upon Executive's submission to Budget of an expense
report and receipts, as appropriate.
(c) Agrees that, during the period from the date of this
Agreement through the Completion Date, he will not,
without the prior written consent of Budget, make or
cause to be made any oral or written statements to
any person, firm, corporation, or governmental or
other entity which reflect negatively on Budget or on
its directors, officers, employees, affiliates and
related companies, or which could reasonably be
understood to be detrimental to the business
interests of Budget or to its directors, officers,
employees, affiliates and related companies.
(d) Agrees to make the Vehicles available for periodic
inspection and/or replacement as Budget may request
from time to time and to return such Vehicles or any
replacement Vehicles to Budget on or before the
Completion Date; provided, however, that if Executive
relocates to another city, Budget will reasonably
cooperate with Executive in allowing the inspection,
replacement, and/or return of the Vehicles to take
place at the nearest Budget owned and operated rental
location.
(e) Agrees that all other perquisites that had been
available to him as a member of Budget senior
management, including but not limited to social and
professional memberships and gasoline and parking
reimbursement, shall terminate as of the Termination
Date. Notwithstanding the foregoing, Executive may
continue to use, at his sole cost
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and expense, the mobile phones currently in the
Vehicles.
(f) Agrees to refrain, at any time and in any manner,
from disclosing any trade secret of Budget or other
confidential and proprietary business information and
material respecting Budget's business of which
Executive has knowledge, where such trade secret or
other confidential and proprietary business
information and material was gained from the files or
business operations of Budget or from Executive
otherwise giving assistance to another, where such
disclosure or assistance could be prejudicial to
Budget or its business, or is in any way related to
any controversy and/or litigation in which Budget is
or may become involved. Notwithstanding the
foregoing, Executive may comply with a court order or
subpoena compelling such disclosure or assistance.
(g) Agrees to deliver to Budget, at the time of the
execution of this Agreement, all non-public documents
and materials that relate to Budget, if any, in
Executive's possession, custody, or control;
provided, however, that Executive may keep all
documents concerning Budget's insurance plans, all
documents concerning his receipt of wages and
benefits while employed at Budget, and any documents
Budget agrees at its discretion he may keep.
(h) Agrees that the terms and conditions of this
Agreement are, collectively and individually, totally
confidential and shall forever be kept totally
confidential and shall not in any manner or for any
reason be disclosed by Executive without the express
prior written consent of Budget, except (x) to
members of his family, his attorneys, and his
accountants on a "need to know" basis, (y) to the
Internal Revenue Service, and (z) to anyone pursuant
to a court order or subpoena compelling such
disclosure. This Agreement may be introduced in any
proceeding to enforce the Agreement. Such
introduction shall be pursuant to an appropriate
order of confidentiality consistent with the terms of
this Section 2(h). If disclosure of this Agreement is
compelled pursuant to service of a subpoena on
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Executive, then Executive shall immediately provide
written notice to Budget and shall not make any such
disclosure for ten (10) business days in order to
give Budget an opportunity to seek an appropriate
protective order, unless disclosure is required
sooner than ten (10) business days by court order,
rule, or regulation, in which case disclosure will
not be made by Executive before the time required by
such court order, rule, or regulation.
3. In further consideration of the payments and benefits
provided in this Agreement, and for other valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, Executive hereby knowingly, voluntarily, and
willingly releases, discharges, and covenants not to xxx
Budget and its affiliated and related companies, past and
present, as well as each of their directors, officers,
employees, shareholders, representatives, attorneys, agents,
insurers, assigns, and successors, past and present
(collectively hereinafter referred to as the "RELEASEES"),
from and with respect to any and all accounts, actions,
contracts, agreements, obligations, causes of action and
claims whatsoever, whether known or unknown, suspected or
unsuspected, in law or in equity, which Executive, and his
heirs, executors, administrators, successors, assigns,
dependents, descendants, and attorneys ever had, now have, or
hereafter can, shall, or may have against the RELEASEES, for,
upon, or by reason of any matter, cause, or thing whatsoever
from the beginning of the world to the date of this Agreement,
including without limitation any and all claims (a) arising
out of or in any way related to Executive's employment with
Budget or his separation from Budget; (b) arising out of or in
any way related to any claims for race, national origin, age,
sex, religious, disability, or other form of employment
discrimination, including without limitation any claims under
Title VII of the Civil Rights Act of 1964, as amended, the Age
Discrimination in Employment Act, as amended, the Americans
with Disabilities Act of 1990, the Employee Retirement Income
Security Act of 1974, as amended, the Family and Medical Leave
Act of 1993, the National Labor Relations Act, as amended, and
the Illinois Human Rights Act, or any other federal, state or
local law, statute, ordinance, or administrative regulation;
or (c) for severance pay, bonus, commission, sick leave,
holiday pay, vacation
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pay, life insurance, disability, health or medical insurance,
or any other fringe benefits; provided, however, that nothing
in this Section will affect any rights provided for in this
Agreement.
4. Executive represents and warrants that he has not filed or
caused to be filed any complaints, charges or lawsuits with
any court or government agency relating to his employment with
Budget or his separation from Budget or to any claims being
released by him in this Agreement, and that he will not file
or authorize or cause to be filed on his behalf any such
complaints, charges, or lawsuits at any time hereafter
relating to his employment with Budget or his separation from
Budget or to any claims being released by him in this
Agreement.
5. Executive represents and warrants that he has not assigned or
transferred to any person not a party to this Agreement any
claim being released by this Agreement, or any part or portion
of such claim, and that he shall defend, indemnify, and hold
harmless Budget from and against any claim (including the
payment of attorneys' fees and costs actually incurred whether
or not litigation is commenced) based on or in connection with
or arising out of any such assignment or transfer.
6. Executive represents and warrants that during his employment
with Budget, he has at all times and in all respects conformed
to and complied with the policies and procedures of Budget and
has not engaged in any conduct which may be reasonably
construed as materially detrimental or embarrassing to Budget,
including without limitation gross neglect or willful
misconduct in the performance of his duties, fraud,
misappropriation, theft, or dishonesty.
7. Notwithstanding anything in this Agreement to the contrary,
if Executive fails or refuses to comply with his obligations
as provided for in Sections 2 and 3 of this Agreement, or
violates any of his representations and warranties as provided
for in Sections 4, 5, and 6 of this Agreement, Budget's
obligations as provided for in this Agreement and the
Executive Agreement shall immediately cease and terminate.
8. This Agreement shall be interpreted, construed, and enforced
under the laws of the State of Florida.
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9. Executive and Budget expressly agree that, except to the
extent this Agreement imposes obligations upon the parties,
this Agreement shall never, at any time, for any purpose
whatsoever, be considered as an admission of liability or
responsibility of the parties.
10. Any and all controversies, claims or disputes arising out of
or in any way relating to this Agreement shall be resolved by
final and binding arbitration in Daytona Beach, Florida before
a single arbitrator licensed to practice law and in accordance
with the Commercial Arbitration Rules of the American
Arbitration Association (the "AAA"). The arbitration shall be
commenced by filing a demand for arbitration with the AAA
within sixty (60) days after the occurrence of the facts
giving rise to any such controversy, claim or dispute. The
arbitrator shall decide all issues relating to arbitrability.
The arbitrator shall award the prevailing party costs and
expenses, including attorneys' fees, associated with any such
arbitration. If the arbitrator determines that (x) Budget has
breached this Agreement and (y) Budget was unjustified in
failing to make the payments required under this Agreement to
Executive, Budget shall pay to Executive, as liquidated
damages and not as a penalty, an additional amount equal to
10% of the amount involved in the arbitration with respect to
this Agreement (and the Executive Agreement).
11. (a) The parties agree that Section 3(b) of the Executive
Agreement and Sections 2 through 6 of the Release
Agreement are a material part of this Agreement. The
parties believe that all provisions of the Executive
Agreement (including Section 3(b)) and the Release
Agreement are legal, binding and fully enforceable.
(b) If Section 3(b) of the Executive Agreement or
Section 2, 3, 4, 5 or 6 of the Release Agreement (or
any material part thereof) is invalid, then this
Release Agreement and the Executive Agreement shall
be null and void.
(c) Subject to subsection (b) above, in case any one or
more of the provisions contained in this Agreement
shall for any reason be held to be invalid, illegal
or enforceable in other respect, such invalidity,
illegality or unenforceability
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19
shall not affect any other provision of this
Agreement, but this Agreement shall be construed as
if such invalid, illegal or unenforceable provision
had never been contained herein and there shall be
deemed substituted for such other provision as will
most nearly accomplish the intent of the parties to
the extent permitted by the applicable law.
12. Except as provided in a written benefit plan of Budget, this
Agreement (and the Executive Agreement) constitute the entire
agreement between the parties respecting the benefits due
Executive, and obligations of Executive, in the event of a
Qualifying Termination, and there are no representations,
warranties or commitments, other than those set forth herein,
which relate to such benefits. This is an integrated
agreement. No provision of this Agreement may be amended or
waived except by written agreement signed by the parties.
13. This Agreement may be executed in counterparts, and each
counterpart, when executed, shall have the effect of a signed
original. Photographic copies of such signed counterparts may
be used in lieu of the original for any purpose.
14. EXECUTIVE EXPRESSLY AGREES THAT HE HAS CAREFULLY READ THIS
AGREEMENT, HAS BEEN PROVIDED WITH THE OPPORTUNITY TO CONSULT
WITH AN ATTORNEY BEFORE ENTERING INTO THIS AGREEMENT, AND
FULLY UNDERSTANDS THE FINAL AND BINDING EFFECT OF THE TERMS
AND PROVISIONS CONTAINED IN THIS AGREEMENT. FURTHER, EXECUTIVE
REPRESENTS AND AGREES THAT THE ONLY PROMISES MADE TO HIM ARE
THOSE STATED ABOVE AND THAT EXECUTIVE IS SIGNING THIS
AGREEMENT VOLUNTARILY AND WITHOUT PRESSURE OR COERCION BY
BUDGET OR ITS OFFICERS, AGENTS, EXECUTIVES, DIRECTORS, OR
ANYONE ELSE ACTING ON THEIR BEHALF.
15. SPECIAL NOTICE TO EXECUTIVE (AS REQUIRED BY LAW FOR
EXECUTIVES AGED 40 AND OLDER):
(a) You should consult with an attorney prior to signing
this Agreement and regarding your release of claims
as provided in this Agreement.
(b) You were given a copy of this Agreement and you
represent that you have been given a period of
twenty-one (21) days (or forty-five (45) days if
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20
part of a group termination) after receipt of the
initial copy of this Agreement to consider the terms
of this Agreement before you sign it, and that you
elect to execute this Agreement on this date.
(c) You are entitled, within 7 days after you sign this
Agreement, to revoke the release and discharge
provided for in Section 3 above as it relates to any
claim you may have under the Age Discrimination in
Employment Act, as amended and the Agreement will not
become effective or enforceable until the revocation
period has expired; provided, however, that such
revocation will cancel this Agreement and the
Executive Agreement in their entirety.
16. Capitalized terms not defined herein shall be defined in
accordance with the Executive Agreement.
IN WITNESS WHEREOF, the parties, intending to be legally
bound, have executed this Agreement as of the date set forth herein.
BUDGET GROUP, INC. EXECUTIVE
------------------------------------ ---------------------------------
Date: Date:
------------------------------- -----------------------------
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