This Release Agreement involves
Title: SEPARATION AGREEMENT AND GENERAL RELEASE
Governing Law: New Jersey Date: 3/4/2011
SEPARATION AGREEMENT AND GENERAL RELEASE
This Separation Agreement and General Release (“Agreement”) is entered into by and between Gerald Plescia (hereinafter “Plescia” or “Employee”), Hertz Global Holdings, Inc. and The Hertz Corporation (hereinafter, together with their subsidiaries and divisions, “Hertz”, “the Company” or “the Companies”), duly acting under authority of its officers and directors.
WHEREAS, Plescia and the Companies acknowledge the existence of a Change In Control Agreement (“C.I.C. Agreement”) entered into by Plescia and The Hertz Corporation in or around July 25, 2005 and acknowledge and agree that no payment or other consideration is due to Plescia under the terms of the C.I.C. Agreement and that Plescia is not legally or contractually bound by the Executive Covenants (Section 8) of the C.I.C. Agreement; and
WHEREAS , Hertz terminated Plescia’s employment on January 25, 2011 (the “Termination Date”); and
WHEREAS , the parties have mutually agreed upon the following payments, benefits and other terms and conditions relating to the termination of Plescia’s employment.
NOW, THEREFORE , in consideration of the mutual promises, covenants and agreements stated herein, which Plescia and the Companies agree constitutes further good and valuable consideration, receipt of which is acknowledged herein, the parties stipulate and do mutually agree as follows:
1. Termination of Employment . Plescia’s employment with Hertz terminated by reason of Plescia’s retirement, effective on the Termination Date.
2. Accrued Obligations and Vested Benefits . Plescia is entitled to receive the following accrued obligations, which shall be paid as soon as practicable following the Termination Date: (i) all salary earned or accrued but not yet paid through the Termination Date; (ii) reimbursement for any and all business expenses incurred prior to the Termination Date, subject to the terms of the Company’s reimbursement policy, (iii) payment for any earned and accrued, but unused vacation days, (iv) payment of Plescia’s 2010 Hertz Annual Bonus; and (v) any other benefits required by law. In addition, Plescia is vested in Hertz’s Post-Retirement Medical Benefits (“Retiree Medical”), The Hertz Corporation Benefit Equalization Plan (“BEP”), The Hertz Corporation Supplemental Retirement Plan (“SERP II”), The Hertz Corporation Cash Balance Plan (“CBP”) and The Hertz Corporation 401K Plan (“410K Plan”) in accordance with the terms of those plans now in effect.
3. Severance Benefits . Provided that Plescia does not revoke this Agreement and complies with the terms of this Agreement, Hertz shall provide Plescia with the following benefits:
a. Severance Payments . The equivalent of 2.0 times the sum of Plescia’ base salary plus Bonus as defined in Plescia’ C.I.C. Agreement for total gross amount of one million six hundred ninety two thousand seven hundred forty seven dollars and zero cents ($1,692,747.00) less all applicable payroll taxes and withholdings paid to Plescia in gross amounts after the Effective Date of this Agreement as defined below. Notwithstanding the foregoing, (1) no severance payments shall be made to Plescia during the period beginning on the Termination Date and ending on the six-month anniversary of such date or, if earlier, the date of Plescia’s death, (2) on the first Company pay period after this six month anniversary, a gross lump sum equivalent to 6 months of severance payments ($423,186.75) less all applicable payroll taxes and withholdings shall be paid to Plescia, (3) on or before December 1, 2011 a gross lump sum equivalent to 6 months of severance payments ($423,186.75) less all applicable payroll taxes and withholdings shall be paid to Plescia, and (4) on or before February 23, 2012 a gross lump sum equivalent to 12 months of severance payments ($846,373.50) less all applicable payroll taxes and withholdings shall be paid to Plescia.
b. Equity Awards . Provided that Plescia executes this Agreement and does not revoke the same in the manner contemplated by Section 15, (i) those options (“Options”) to purchase shares of common stock of Hertz Global Holdings, Inc. issued to Plescia pursuant to the Hertz Global Holdings, Inc. Stock Incentive Plan (the “Stock Incentive Plan”) and the Hertz Global Holdings, Inc. 2008 Omnibus Incentive Plan (the “Omnibus Plan”) that would have vested on or before March 31, 2011 if Plescia had remained employed by Hertz through March 31, 2011 shall vest immediately as of the Termination Date, and (ii) the restriction periods applicable to the performance stock units (“Performance Stock Units”) awarded to Plescia under the Omnibus Plan that would have lapsed on or before March 31, 2011 if Plescia had remained employed by Hertz through March 31, 2011 shall lapse upon the later of (A) Plescia’s Termination Date or (B) the date the Compensation Committee certifies any applicable performance criteria with respect to the Performance Stock Units. All of Plescia’s vested Options, including those Options set forth herein, shall be exercisable through July 24, 2011 in accordance with the terms of the Stock Incentive Plan or the Omnibus Plan, as applicable, and any applicable award agreement, after which any Options not exercised, shall be canceled. All of Plescia’s unvested Options shall terminate as of Plescia’s Termination Date. All Performance Stock Units as to which the applicable restriction period lapses as provided in this Agreement shall be settled in accordance with the terms of the Omnibus Plan and any applicable award agreement, and all other Performance Stock Units shall be canceled on the Termination Date. A chart identifying Plescia’s vested Options and Performance Stock Units listed above and exercise dates for the same is attached hereto as Exhibit A.
c. Bonus . Plescia will be considered eligible for 1/12 th of his 2011 Bonus, which shall be payable in accordance with the Bonus Plan Provisions, but no later than March 15, 2012.
d. Outplacement Services . In lieu of outplacement services, the Company will pay Plescia a lump sum of $25,000 on or before March 31, 2011 to use for outplacement assistance or in any other matter that Plescia sees fit.
e. Car Privileges. Plescia will be provided continued car privileges until January 24, 2016 in accordance with the same terms and conditions that were in effect on January 24, 2011.
f. Health Plan Coverage . Plescia will elect medical and health benefits under Hertz’s Retiree Medical. In lieu of continued medical and health coverage through the Hertz Custom Benefits Program (“Benefits Program”), and for the period of time Plescia maintains Retiree Medical up to twenty-four (24) months from the Termination Date, the Company will reimburse Plescia on a quarterly basis in an amount equal to the difference between the cost of Plescia’s family medical and health coverage under Hertz’s Retiree Medical and Plescia’s out-of-pocket costs for medical and health benefits under the Benefits Program (not including any amounts Plescia contributed to any type of flexible spending account) as of the time of Plescia’s Termination Date. For example, if the yearly cost of Plescia’s family medical and health coverage under Hertz’s Retiree Medical plan is $9,000 in 2011 and Plescia’s yearly out-of-pocket costs for medical and health benefits under the Benefits Program was $5,000, the Company would reimburse Plescia for $4,000 of his 2011 medical costs, which would be paid to him on a quarterly basis in 2011.
Plescia acknowledges and agrees that the consideration set forth in this Section 3 constitutes satisfaction and accord for any obligations due and owing to him pursuant to any employment agreement or other arrangement with the Companies. Plescia acknowledges and agrees that unless he enters into this Agreement, he would not otherwise be entitled to receive the consideration set forth in this Section 3.
4. Waiver and Release .
a. In exchange for receiving the monies and benefits described in Section 3 above, Plescia does for himself and his heirs, executors, administrators, successors, and assigns, hereby release, acquit, and forever discharge and hold harmless the Companies and each of their divisions, subsidiaries, affiliated companies, successors, assigns, officers, directors, shareholders, employees, benefit and retirement plans (as well as trustees and administrators thereof), agents and heirs, assigns and successors, past and present, and any persons, firms or corporations in privity with any one of them, of and from any and all actions, causes of action, claims, demands, attorneys’ fees, compensation, expenses, promises, covenants, and damages of whatever kind or nature, in law or in equity, which Plescia has, had or could have asserted, known or unknown, at common law or under any statute, rule, regulation, order or law, whether federal, state or local, or on any grounds whatsoever, including without limitation, any and all claims for any additional severance pay, vacation pay, bonus or other compensation; any and all claims of discrimination or harassment based on race, color, national origin, ancestry, religion, marital status, sex, sexual orientation, disability, handicap, age or other unlawful discrimination; any and all claims arising
under Title VII of the Federal Civil Rights Act; the Federal Civil Rights Act of 1991; the Americans with Disabilities Act; the Age Discrimination in Employment Act; the New Jersey Law Against Discrimination; or under any other state, federal, local or common law, with respect to any event, matter, claim, damage or injury arising out of his employment relationship with the Companies, and/or the separation of such employment relationship, and/or with respect to any other claim, matter, or event, from the beginning of the world to the date of execution of this Agreement.
b. Plescia also waives and relinquishes any and all claims or rights to any monies, benefits, payments or other compensation due him or that could be deemed due him under any employment agreement, including the C.I.C. Agreement, and any other compensation arrangement of the Company, except all vested retirement plan benefits (including but not limited to BEP, CBP, 401K Plan, SERP II and Hertz’s Retiree Medical), COBRA continuation coverage rights, enforcement of this Agreement, and any claims under applicable workers’ compensation laws or for unemployment benefits.
c. Nothing in this Agreement shall be construed to prohibit Plescia from filing any future charge or complaint with the EEOC or participating in any investigation or proceeding conducted by the EEOC, nor shall any provision of this Agreement adversely affect Plescia’s right to engage in such conduct. Notwithstanding the foregoing, Plescia waives the right to obtain any relief from the EEOC or recover any monies or compensation as a result of filing a charge or complaint. In addition to agreeing herein not to bring suit against the Companies, Plescia agrees not to seek damages from the Companies by filing a claim or charge with any state or governmental agency.
d. In consideration for this Agreement and other good and sufficient consideration, the Companies agree to and hereby do release and discharge Plescia from and against any and all claims, causes of action, arbitrations, damages, costs and expenses and demands of any kind, whether known or unknown, which the Companies have or ever have had, from the beginning of time through the date of this Agreement.
5. Company Property.
a. Plescia shall return to the Company all company property and “Company Information” in Plescia’s possession or control, including but not limited to, business reports and records, client reports and records, customer information, personally identifiable information relating to others, business strategies, contracts and proposals, files, a listing of customers or clients, lists of potential customers or clients, technical data, testing or research data, research and development projects, business plans, financial plans, internal memoranda concerning any of the above, and all credit cards, cardkey passes, door and file keys, computer access codes, software, and other physical or personal property which Plescia received, had access to or had in his possession, prepared or helped prepare in connection with Plescia’s employment with the Companies and Plescia shall not make or retain any copies, duplicates, reproductions, or excerpts thereof. The term “Company Information” as used in this Agreement means (a) confidential information including, without limitation, information received from third parties under confidential conditions; and (b) other technical, business, or financial information, the use or disclosure of which might reasonably be construed to be contrary to the interest of the Company.
b. Plescia acknowle