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Exhibit 10.188
INDEMNIFICATION AGREEMENT
THIS INDEMNIFICATION AGREEMENT (this “
Agreement ”) is
made as of the 8 th day of April, 2008 by and between
DOLLAR THRIFTY AUTOMOTIVE GROUP, INC., a Delaware corporation (the
“ Corporation ”), and KIMBERLY D. PAUL, who currently is serving as the
Vice President and Chief Accounting Officer of the Corporation (the
“ Indemnitee ”).
RECITALS :
A. The Indemnitee
is currently serving in the capacity as the Vice President and
Chief Accounting Officer of the Corporation;
B. The
Corporation wishes the Indemnitee to continue to serve in such
capacity and the Indemnitee is willing, under certain
circumstances, to continue in such capacity;
C. Certain
interpretations of the law and public policy have created
uncertainty about activities of corporate directors and officers
and the risk of significant personal liability to the
Indemnitee;
D. Damages
sought and sometimes paid in many claims made against corporate
directors and officers and the expenses required to defend such
claims, whether or not the allegations are meritorious, do not bear
a reasonable, logical relationship to the amount of compensation
received by and may be beyond the financial resources of the
Indemnitee;
E. In
addition to the indemnification to which the Indemnitee is entitled
to under Delaware General Corporation Law and the Certificate of
Incorporation of the Corporation, the Corporation furnishes, at its
expense, directors’ and officers’ liability insurance
protecting the Indemnitee for certain liabilities which might arise
in connection with the Indemnitee’s service, but this
insurance contains many restrictions and limitations;
F. The
Indemnitee has indicated that the Indemnitee does not regard the
indemnification available under Delaware General Corporation Law,
the Certificate of Incorporation of the Corporation, and the
Corporation’s directors’ and officers’ liability
insurance to be adequate protection against the risks associated
with the Indemnitee’s service to or at the request of the
Corporation;
G. The
Indemnitee and the Corporation have concluded that the exposure to
risk of personal liability and payment of damages out of the
Indemnitee’s personal assets may result in overly
conservative direction and supervision of the Corporation’s
affairs, which is detrimental to the best interests of the
Corporation and its shareholders; and
H. The
Corporation has concluded that additional protection is appropriate
and necessary for the Indemnitee.
NOW, THEREFORE, in consideration of the
Indemnitee’s continued and future service to the Corporation,
the parties agree as follows:
1.
Indemnification . So
long as the Indemnitee shall continue to serve in the capacity
described above and thereafter so long as the Indemnitee shall be
subject to any possible action, suit or proceeding by reason of the
fact that the Indemnitee served in said
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capacity, the Corporation agrees to indemnify the
Indemnitee to the fullest extent permitted by the Delaware General
Corporation Law, as it exists now and as it may be amended in the
future, to provide additional indemnification for the
Indemnitee.
2.
Additional Indemnification and Payment of
Expenses . Without limiting the
indemnification provided in, and so long as Indemnitee remains
eligible for indemnification under, Section 1 and subject to the
limitations, terms and conditions of this Agreement including, but
not limited to, the limitations in Section
9 , the Corporation agrees to:
(a) indemnify the
Indemnitee against all judgments for both compensatory and punitive
damages, fines, penalties and settlements incurred in connection
with any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or
investigative (including, but not limited to, any action by or in
the right of the Corporation), to which the Indemnitee is, was or
at any time becomes a party, or is threatened to be made a party,
by reason of the fact that the Indemnitee is, was or at any time
becomes a director, officer, employee, agent, representative or
fiduciary of another corporation, partnership, joint venture, trust
or other enterprise or with respect to any employee benefit plan
(or its participants or beneficiaries) of the Corporation or any
such other enterprise, and
(b) pay all
costs, charges and other expenses, including, but not limited to,
attorneys’ fees, costs of appearance, attachment and similar
bonds (the “ Expenses
”) incurred in connection with the
investigation and defense of any action, suit or proceeding
described in Section 2(a)
.
3.
Maintenance of Directors’ and
Officers’ Liability Insurance . The
Corporation currently maintains directors’ and
officers’ liability insurance (the “
D&O Insurance ”).
(a) So long
as the Indemnitee shall continue to serve in the capacity described
above and thereafter so long as the Indemnitee shall be subject to
any possible action, suit or proceeding by reason of the fact that
the Indemnitee served in said capacity, the Corporation shall
maintain in effect for the benefit of the Indemnitee one or more
valid, binding and enforceable policies of directors’ and
officers’ liability insurance providing, in all respects,
coverage and amounts at least comparable to that provided pursuant
to the D&O Insurance.
(b) Notwithstanding
Section 3(a) , the
Corporation shall not be required to maintain directors’ and
officers’ liability insurance in effect if such insurance is
not reasonably available or if, in the reasonable business judgment
of the Board of Directors of the Corporation as it may exist from
time to time, either (i) the premium cost for such insurance is
substantially disproportionate to the amount of insurance, or (ii)
the coverage is so limited by exclusions that there is insufficient
benefit provided by such insurance.
(c) If the
Corporation, acting under Section
3(b) , does not purchase and maintain in
effect directors’ and officers’ liability insurance,
the Corporation shall indemnify and hold harmless the Indemnitee to
the full extent of the coverage which would otherwise have been
provided by the D&O Insurance.
4.
Defense of Claim . With
respect to any action, suit or proceeding described in
Section 2 , the
Corporation may elect to assume the investigation and defense of
such action, suit or proceeding with counsel it selects with the
consent of the Indemnitee, which consent shall not be unreasonably
withheld. After notice to the Indemnitee from the Corporation of
its election to assume the investigation and defense, the
Corporation shall not be liable to the
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Indemnitee under this Agreement for any expenses
subsequently incurred by the Indemnitee in connection with the
investigation and defense other than for services requested by the
Corporation or the counsel it selected. The Indemnitee shall have
the right to employ its own counsel, but the Expenses incurred by
the Indemnitee after notice from the Corporation of its assumption
of the investigation and defense shall be at the expense of the
Indemnitee. Notwithstanding the foregoing, however, the Indemnitee
shall be entitled to separate counsel in any action, suit or
proceeding brought by or on behalf of the Corporation or as to
which counsel for the Indemnitee reasonably concludes that there is
a conflict of interest between the Corporation and the Indemnitee,
provided that the Corporation shall not be required to pay the
expenses of more than one such separate counsel for persons it is
indemnifying in any one action, suit or proceeding.
5.
Advance Payment of Expenses
. The Indemnitee’s reasonable Expenses
incurred in connection with any action, suit or proceeding
described in Section 2
shall be paid by the Corporation as they accrue,
and, in any event, within thirty (30) days after the Corporation
has received written request therefor from or on behalf of the
Indemnitee. The Corporation shall continue to make such payments
unless and until there has been a final adjudication by a court of
competent jurisdiction establishing that the Indemnitee is not
entitled to be indemnified for such Expenses under this
Agreement.
6.
Indemnitee’s Reimbursement
. The Indemnitee agrees to reimburse the Corporation
for all amounts paid by the Corporation pursuant to
Sections 1, 2, 3(c), 4 and 5
of this Agreement in the event and to the extent,
but only in the event and only to the extent, that there is a final
adjudication by a court of competent jurisdiction establishing that
the Indemnitee is not entitled to be so indemnified or to have such
Expenses paid by the Corporation.
7.
Partial Indemnity . If
Indemnitee is entitled under any provision of this Agreement to
indemnification by the Corporation for some or a portion of the
Expenses, judgments, fines, penalties and settlements but not,
however, for all of the total amount, the Corporation shall
nevertheless indemnify Indemnitee for the portion to which
Indemnitee is entitled. Moreover, notwithstanding any other
provision of this Agreement, to the extent the Indemnitee has been
successful on the merits or otherwise in defense of any or all
claims relating in whole or in part to any event, occurrence or
circumstance that is a proper subject for indemnity hereunder or in
defense of any issue or matter, including dismissal without
prejudice, Indemnitee shall be indemnified against all Expenses
incurred in connection with those defenses.
8.
Contribution . If the
indemnification or payments of Expenses provided by this Agreement
should be unavailable or insufficient to hold the Indemnitee
harmless, then the Corporation agrees that, for purposes of
this Section 8 ,
the Corporation shall be treated as if it were a party to the
threatened, pending or completed action, suit or proceeding in
which the Indemnitee was involved and that the Corporation shall
contribute to the amounts paid or payable by the Indemnitee as a
result of Expenses, judgments for both compensatory and punitive
damages, fines, penalties and amounts paid in
settlement.
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