Exhibit 10.5
SEPARATION AGREEMENT AND GENERAL RELEASE
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CENDANT CORPORATION (the "Company") and Xxxxx X. Xxxxxxx (hereinafter
collectively with his heirs, executors, administrators, successors and assigns,
"Executive"), mutually desire to enter into this Separation Agreement and
General Release ("Agreement" or "Agreement and General Release") and agree that:
The terms of this Agreement and General Release are the products of mutual
negotiation and compromise between Executive and the Company; and
The meaning, effect and terms of this Agreement and General Release have
been fully explained to Executive; and
Executive is hereby advised, in writing, by the Company that he should
consult with an attorney prior to executing this Agreement and General Release;
andExecutive is being afforded at least twenty-one (21) days to consider the
meaning and effect of this Agreement and General Release.
Executive understands that he may revoke this Agreement and General Release for
a period of seven (7) calendar days following the day he executes this Agreement
and General Release and said Agreement and General Release shall not become
effective or enforceable until the revocation period has expired, and no
revocation has occurred (the "Effective Date"). Any revocation within this
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period must be submitted, in writing, to the Company and state, "I hereby revoke
my acceptance of your Agreement and General Release." Said revocation must be
personally delivered to the Company or its designee, or mailed to the Company
and postmarked within seven (7) calendar days of execution of this Agreement and
General Release; and
Executive has carefully considered other alternatives to executing this
Agreement and General Release.
THEREFORE, Executive and the Company, for the full and sufficient
consideration set forth below, agree as follows:
1. Executive agrees to remain employed with the Company in good standing
through May 6, 2005, or such other later date mutually agreed upon by Executive
and the Company (the "Employment Period"). Executive acknowledges and agrees
that he will no longer be an employee, officer and/or director of the Company or
any of its subsidiaries or affiliates following the expiration of the Employment
Period, and that he will provide the Company written resignations from all of
his positions as an officer and/or director of the Company and its subsidiaries
and affiliates as directed by the Company.
During the Employment Period, Executive will be paid all base salary
at his current rate of pay in accordance with the Company's regular payroll
schedule. During the Employment Period, Executive
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will transition all of his current duties at the direction of the President of
the Company and further maintain positive posture internally and externally with
respect to management changes relating to his termination of employment.
2. Provided this Agreement and General Release is executed and becomes
effective, in consideration for the execution by Executive of this Agreement and
General Release and compliance with the promises made herein, the Company
agrees:
a. to pay Executive severance equal to the following amount: $6,839,625 (SIX
MILLION, EIGHT HUNDRED THIRTY NINE THOUSAND, SIX HUNDRED AND TWENTY FIVE
DOLLARS), less applicable withholding taxes. Such payment is in lieu of
severance under any other plan, program or policy of the Company or any of its
subsidiaries, affiliates or predecessors, and any employment agreement or any
other agreement between Executive and the Company or any of its subsidiaries,
affiliates or predecessors, and in lieu of any other severance rights or
entitlements, arising from any source or under any law, whether written or oral.
Such payment will be made as follows: (i) $5,704,625 will be paid in a lump sum
cash payment to Executive no later than 20 days following the expiration of the
Employment Period and (ii) the remaining amount ($1,135,000) will be credited to
Executive in an account under the Cendant Corporation Deferred Compensation Plan
(the "Plan"), within 10 days following the expiration of the Employment Period
(the "Deferred Severance"). The Deferred Severance will be treated in accordance
with the terms and conditions of the Plan and applicable law. The Deferred
Severance, and any and all investment gains and earnings (net of any losses or
expenses) thereon, will be distributed to Executive, in accordance with the
terms of the Plan, in 10 substantially equal annual installments, with the first
such installment being paid to Executive on April 1, 2007, and the remaining 9
installments on the next 9 anniversaries of such date. The foregoing
distribution schedule is irrevocable and may not be amended by Executive,
subject to the terms of the Plan. Executive's most recent beneficiary
designation made under the Plan, as amended from time to time in accordance with
the terms of the Plan and applicable law, will apply to the Deferred Severance.
There will be no Company Matching Contribution relating to the Deferred
Severance.
b. to permit Executive to be a participant in the Avis Designated Executive
Officer Post-Retirement Medical Program, subject to the terms and conditions of
such participants of such program; provided, however, that nothing contained
herein program, and on the same terms and conditions applicable to other current
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shall alter or limit any existing right of the Company (or any subsidiary of the
Company administering such program) to amend, modify or terminate such program
on such basis which applies consistently to all participants. The Company
confirms that the Medical Program permits eligible participants to cease
participation at any time and thereafter re-commence participation in the next
plan year.
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c. Executive acknowledges and agrees that he will not receive (and hereby
waives any right to receive) any grant of any stock option, restricted stock,
restricted stock unit or other type of equity or incentive award in 2005 or any
later year.
d. Each of Executive's currently outstanding equity awards relating to
common stock of the Company will be treated in accordance with their respective
existing terms and conditions. In this regard, the Company acknowledges and
agrees that Executive's termination from the Company shall be deemed a
Termination Without Cause within the meaning of Section VII.C.iii. of the
Amended and Extended Employment Agreement, dated as of April 1, 2003, and as
amended by letter agreement dated May 2, 2003, by and between Executive and the
Company (the "Current Employment Agreement"). Accordingly, as described in
Section VII.A. of the Current Employment Agreement, those certain stock options
and restricted stock units granted on or after April 1, 2003 or on March 1,
2001, and after March 1, 2001 and prior to April 1, 2003, will become
automatically vested and/or extended in accordance with the terms of such
Section VII.A. For greater clarity, all restricted stock units granted and
outstanding pursuant to the Cendant 2003 Long Term Incentive Plan (83,532 units)
and all "Target Units" granted and outstanding pursuant to the Cendant 2004
Performance Metric Long Term Incentive Plan (90,631 units) will become
automatically vested (in each case less any units which vest earlier in
accordance with their existing vesting schedule). In addition, as further
consideration to Executive for the Special Services (as defined below), 35% of
the "Exceed Target Units" granted pursuant to the Cendant 2004 Performance
Metric Long Term Incentive Plan (31,721 units) will become vested, and the
remaining "Exceed Target Units" will automatically terminate. A summary of
Executive's outstanding stock options is attached hereto as Annex A.
e. to provide Executive with a clear and neutral reference. Upon request
from Executive, the Company will provide a reference substantially as follows:
"Xx. Xxxxxxx consistently met the expectations of the Company and always acted
with professionalism." In the event that the Company determines to issue any
additional press release or general announcement regarding Executive's
termination of employment, the Company agrees that Executive may review any such
press release or general announcement in advance of its release, and the Company
will give reasonable consideration to any comments that Executive provides.
3. Executive acknowledges and agrees to perform additional Special
Services (as defined below) for the benefit of the Company, and further agrees
to do so for no further consideration, compensation or remuneration from the
Company, except that the Company will reimburse Executive for any reasonable
expenses incurred by Executive (in accordance with Company policy) in connection
with performing such Special Services. In agreeing to provide the Special
Services for no further consideration, compensation or remuneration, Executive
acknowledges and agrees that the compensation and benefits being provided him
from the Company under this Agreement and General Release are greater than what
he would otherwise be entitled to receive whether pursuant to the Current
Employment Agreement, applicable law, or otherwise (the
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"Additional Cendant Consideration"), and accordingly Executive hereby makes the
following covenants regarding certain compensation:
(i) the amount of severance being provided to Executive pursuant to Section
2.a. above is greater than the amount of severance the Company is obligated to
pay Executive under the Current Employment Agreement or otherwise; and
(ii) the Company has no obligation, pursuant to the Current Employment
Agreement or otherwise, to cause the acceleration of Executive's "Exceed Target
Units" pursuant to Section 2.d.
Executive will perform the Special Services as an independent contractor, and
not as an employee of the Company or any of its subsidiaries or affiliates. The
Special Services are hereby defined as follows: (i) Executive shall remain
reasonably available to the Company's President by telephone and electronic mail
to answer questions regarding the Company's Vehicle Services Division (or
successor division) during the period beginning upon the expiration of the
Employment Period and ending on December 31, 2008; (ii) as directed by the
Company, Executive will serve as the Company's designee on appropriate industry
and trade associations; and (iii) Executive acknowledges his continuing
obligations to the Company pursuant to Section VIII of the Current Employment
Agreement (entitled "Other Duties of the Executive During and After the Period
of Employment"), including, among other things, his obligations to provide
assistance with Company legal claims and actions, to refrain from competing with
the Company and to refrain from interfering with or soliciting certain employees
of the Company and, in this regard (A) Executive hereby agrees that the
Restricted Period (as defined in such Section VIII) is hereby amended to mean a
period of three (3) years commencing immediately following the expiration of the
Employment Period and (B) Executive acknowledges that the requirement that he
assist the Company with legal claims, suits and actions will remain in effect
for the rest of his life and that the Company anticipates that the, from time to
time, the amount of assistance it will require from Executive may be material.
EXECUTIVE HEREBY ACKNOWLEDGES AND AGREES THAT THE ADDITIONAL CENDANT
CONSIDERATION IS FAIR AND APPROPRIATE CONSIDERATION FOR HIS AGREEMENT TO PERFORM
THE SPECIAL SERVICES.
4. Executive is obligated for the payment of any taxes, local, state
or federal which may become due and owing hereunder and in this regard agrees to
hold the Company and each of its parents, affiliates, subsidiaries, divisions,
successors, predecessors and assigns and their respective employees, officers,
directors, employee benefit plans, and agents thereof (collectively referred to
throughout this Agreement as the "Released Parties") harmless for any taxes,
interest or penalties deemed by the government as due thereon from him.
5. Executive understands and agrees that he would not receive certain
of the monies and/or benefits specified in Paragraph 2 above, except for his
execution of this Agreement and General Release, and the fulfillment of the
promises contained herein, and that such consideration is greater than any
amount to which he would otherwise be entitled.
6. Executive, of his own free will, knowingly and voluntarily releases
and forever discharges the Released Parties (and, for purposes of this Section
6, Release Parties shall also include PHH Corporation,
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Xxxxxx Express Corporation, and each of their respective subsidiaries and
affiliates), of and from any and all actions or causes of action, suits, claims,
charges, complaints, promises, policies, demands and contracts (whether oral or
written, express or implied from any source), of any nature whatsoever, known or
unknown, suspected or unsuspected, which against the Released Parties, Executive
or Executive's heirs, executors, administrators, successors or assigns ever had,
now have, or hereafter can, shall, or may have, by reason of any matter, cause
or thing whatsoever arising from the beginning of time to the time Executive
executes this Agreement and General Release, including, but not limited to:
a. any and all matters arising out of his employment with the Company or
any of the Released Parties and the cessation of said employment, and including,
but not limited to, any claims for salary, bonuses, commissions, finders' fees,
incentive compensation of any kind, stock options, stock appreciation rights,
restricted stock, restricted stock units, severance pay, director pay, or
vacation pay (or any amounts or payments in consideration of the termination or
cancellation of any of the foregoing or any benefits, rights or compensation
pursuant to any plan or program providing any of the foregoing), any alleged
violation of the National Labor Relations Act, any claims for discrimination of
any kind under the Age Discrimination in Employment Act of 1967 as amended by
the Older Workers Benefit Protection Act, Title VII of the Civil Rights Act of
1964, Sections 1981 through 1988 of Title 42 of the United States Code, the
Employee Retirement Income Security Act of 1974 (except for vested pension
benefits which are not affected by this agreement), the Americans With
Disabilities Act of 1990, the Fair Labor Standards Act, the Occupational Safety
and Health Act, the Consolidated Omnibus Budget Reconciliation Act of 1985, the
Federal Family and Medical Leave Act; and
b. the New York Equal Pay Law; Human Rights Law; Civil Rights Law; AIDS
Testing Confidentiality Act; Occupational Safety and Health Laws; Rights of
Person's With Disabilities Law; Smoker's Rights Law; the Adoptive Parents Child
Care Leave Law; the Bias Against Cancer Victim's Law; Equal Rights Law; Bone
Marrow Donor Leave Law; "Consumer Reports: Discrimination" provision; "Worker's
Compensation" provision; "Jury Duty" provision; "Arrest Records" provision;
"Military Service Leave" provision; "Voting Leave" provision; and
c. the New Jersey Equal Pay Law; Law Against Discrimination; Occupational
Safety and Health Laws; Conscientious Employee Protection Act; Tobacco Use
Discrimination Law; Family Leave Act; Wage and Hour Laws; "Workers'
Compensation: Retaliation" provision; "Political Activities of Employees"
provision; "Lie Detector Tests" provision; and
d. any other federal, state or local civil or human rights law or
securities law, or any other alleged violation of any local, state or federal
law, regulation or ordinance, and/or public policy, implied or expressed
contract, fraud, negligence, estoppel, defamation, infliction of emotional
distress or other tort or common-law claim having any bearing whatsoever on the
terms and conditions and/or cessation of his employment with the Company or
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any Released Party, including, but not limited to, any allegations for costs,
fees, or other expenses, including reasonable attorneys' fees, incurred in these
matters.
Notwithstanding the foregoing, Executive's right to indemnification from the
Company to the extent set forth in Section XIV of the Current Employment
Agreement shall survive the termination of the Current Employment Agreement,
notwithstanding the termination of Executive's employment with the Company. The
Company confirms that the foregoing indemnification will apply to Executive's
participation in current litigation relating to BNP Paribas. The Company
represents that it is not currently aware of any claims that it may have against
Executive.
Notwithstanding the foregoing, the Company will pay Executive his regular annual
profit-sharing bonus in respect of the 2004 fiscal year of the Company, less
applicable withholding taxes, which amount was determined by the Company in
accordance with the terms of Executive's employment agreement and approved as of
March 1, 2005 by the Cendant Corporation Compensation Committee. Such bonus
payment will be made in a lump sum cash payment by no later than April 30, 2005.
7. Executive also acknowledges that he does not have any current
charge against any of the Released Parties pending before any local, state or
federal agency. Executive shall not seek or be entitled to any personal
recovery, in any action or proceeding that may be commenced on Executive's
behalf in any way arising out of or relating to the matters released under this
Agreement and General Release.
8. Executive agrees not to disclose, either directly or indirectly,
any information whatsoever regarding the existence or substance of this
Agreement and General Release including specifically any of the terms of
settlement. This nondisclosure includes, but is not limited to, members of the
media, present and former executives of the Company or any Released Party, and
other members of the public, but does not include an attorney, accountant or
representative with whom Executive chooses to consult or seek advice regarding
his consideration of and decision to execute this Agreement and General Release.
This Agreement shall not be admissible in any proceeding except to enforce the
terms herein. In response to inquiries from individuals other than an attorney,
accountant, or representative, Executive shall only respond "I have
satisfactorily resolved all of my differences with the Company." In the event of
disclosure, except as permitted under this Agreement and General Release or
pursuant to lawful court order or subpoena, the Company has the right to
institute an action against Executive for the return of all settlement monies
plus the reimbursement of attorneys fees and court costs.
9. Executive acknowledges that in connection with his employment,
Executive has had access to information of a nature not generally disclosed to
the public. Executive agrees to keep confidential and not disclose to anyone,
unless legally compelled to do so, Confidential and Proprietary Information.
"Confidential and Proprietary Information" includes but is not limited to all
Company or any Released Party's business and strategic plans, financial details,
computer programs, manuals, contracts, current and prospective client and
supplier lists, and all other documentation, proprietary business knowledge,
data, material, property and supplier lists, and developments owned, possessed
or controlled by the Company or any Released Party, regardless of whether
possessed or developed by Executive in the course of his employment, except for
any information already in the public domain. Such Confidential and Proprietary
Information may or may not be designated as confidential or proprietary and may
be oral, written or electronic media. Executive understands that such
information is owned and shall continue to be owned
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solely by the Released Parties. Executive agrees that he has not and will not
disclose, directly or indirectly, in whole or in part, any Confidential and
Proprietary Information. Executive acknowledges that he has complied and will
continue to comply with this commitment, both as an employee and after the
termination of his employment. Executive also acknowledges his continuing
obligations under the Company's business ethics policies and obligations under
the Company's Core Policies Manual.
10. Executive acknowledges and confirms that at the expiration of the
Employment Period, he will return all Company property to the Company, including
his identification card, any computer hardware and software, all paper or
computer-based files, business documents, and/or other records as well as all
copies thereof, credit cards, keys and any other Company supplies or equipment
in his possession. In addition, any business related expenses for which he seeks
reimbursement have been documented and submitted to the Company. Finally, any
amounts owed to the Company or any Released Party have been paid.
11. Executive represents that he has not, and agrees that he will not,
in any way disparage the Company or any Released Party, their current and former
officers, directors and employees, or make or solicit any comments, statements,
or the like to the media or to others that may be considered to be derogatory or
detrimental to the good name or business reputation of any of the aforementioned
parties or entities. The Company represents that it has not, and agrees that it
will not, in any way disparage Executive or make or solicit any comments,
statements, or the like to the media or to others that may be considered to be
derogatory or detrimental to the business reputation of Executive.
12. Notwithstanding Section 16 below, Section VIII of the Current
Employment Agreement (entitled "Other Duties of the Executive During and After
the Period of Employment") will remain in full force and effect, as amended in
Section 3 above, such that Executive will remain responsible for complying with
all noncompetition and other restrictive covenants set forth therein.
13. This Agreement and General Release is made in the State of New
York and shall be interpreted under the laws of said State. Its language shall
be construed as a whole, according to its fair meaning, and not strictly for or
against either party. Should any provision of this Agreement and General Release
be declared illegal or unenforceable by any court of competent jurisdiction and
cannot be modified to be enforceable, including the general release language,
such provision shall immediately become null and void, leaving the remainder of
this in full force and effect. However, if as a result of any action initiated
by Executive, any portion of the general release language were ruled to be
unenforceable for any reason, Executive shall return the consideration paid
hereunder to the Company.
14. Executive agrees that neither this Agreement and General Release
nor the furnishing of the consideration for this Agreement and General Release
shall be deemed or construed at any time for any purpose as an admission by and
of the Released Parties of any liability or unlawful conduct of any kind, all of
which the Released Parties deny.
15. This Release may not be modified, altered or changed except upon
express written consent of both parties wherein specific reference is made to
this Agreement and General Release.
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16. This Release sets forth the entire agreement between the parties
hereto, and fully supersedes any prior agreements or understandings between the
parties, including any employment or severance agreements, but with the
exception of any confidentiality agreement or provision, which agreement or
provision shall survive the termination of Executive's employment in accordance
with its own terms, and with the exception of any Company's Core Policies
Manual. Except to the extent specifically set forth in this Agreement and
General Release, the Current Employment Agreement and each and every other
employment agreement between the parties hereto, is terminated and of no further
force or effect.
THE PARTIES HAVE READ AND FULLY CONSIDERED THIS AGREEMENT AND GENERAL RELEASE
AND ARE MUTUALLY DESIROUS OF ENTERING INTO SUCH AGREEMENT AND GENERAL RELEASE.
EXECUTIVE UNDERSTANDS THAT THIS DOCUMENT SETTLES, BARS AND WAIVES ANY AND ALL
CLAIMS HE HAD OR MIGHT HAVE AGAINST THE COMPANY; AND HE ACKNOWLEDGES THAT HE IS
NOT RELYING ON ANY OTHER REPRESENTATIONS, WRITTEN OR ORAL, NOT SET FORTH IN THIS
DOCUMENT. HAVING ELECTED TO EXECUTE THIS AGREEMENT AND GENERAL RELEASE, TO
FULFILL THE PROMISES SET FORTH HEREIN, AND TO RECEIVE THEREBY THE SUMS AND
BENEFITS SET FORTH IN PARAGRAPH 2 ABOVE, EXECUTIVE FREELY AND KNOWINGLY, AND
AFTER DUE CONSIDERATION, ENTERS INTO THIS AGREEMENT AND GENERAL RELEASE.
IF THIS DOCUMENT IS RETURNED EARLIER THAN TWENTY-ONE (21) DAYS, THEN EXECUTIVE
ADDITIONALLY ACKNOWLEDGES AND WARRANTS THAT HE HAS VOLUNTARILY AND KNOWINGLY
WAIVED THE 21 DAY REVIEW PERIOD, AND THIS DECISION TO ACCEPT A SHORTENED PERIOD
OF TIME IS NOT INDUCED BY THE RELEASED PARTIES THROUGH FRAUD, MISREPRESENTATION,
A THREAT TO WITHDRAW OR ALTER THE OFFER PRIOR TO THE EXPIRATION OF THE 21 DAYS,
OR BY PROVIDING DIFFERENT TERMS TO EMPLOYEES WHO SIGN RELEASES PRIOR TO THE
EXPIRATION OF SUCH TIME PERIOD.
THEREFORE, the parties to this Agreement and General Release now
voluntarily and knowingly execute this Agreement and General Release.
/S/ Xxxxx X. Xxxxxxx
__________________________
Xxxxx X. Xxxxxxx
Signed and sworn before me
this 20th day of April, 2005.
/s/Xxxxxx X. Xxxxxxxx
__________________________
Notary Public
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CENDANT CORPORATION
By: /s/ Xxxxx Xxxxxx
____________________________
Name: Xxxxx Xxxxxx
Title: Executive Vice President, Human
Resources
Signed and sworn before me
this 20th day of April, 2005.
/s/ Xxxxxx X. Xxxxxxxx
___________________________
Notary Public
