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Exhibit 10.189
RETIREMENT AND SEPARATION
AGREEMENT
THIS RETIREMENT AND SEPARATION
AGREEMENT (" Agreement ") is made and entered into
by and between Yves Boyer
(" Employee
"), an individual who resides in Lutz, FL,
and Dollar Thrifty Automotive Group,
Inc. , a Delaware corporation ("
DTG "), with its
principal place of business located at Tulsa, Oklahoma.
PURPOSE :
Employee has informed DTG that Employee desires to
retire and voluntarily separate from his current position as
DTG’s Executive Vice President – International,
effective December 31, 2007. In order to achieve a final and
amicable resolution of the employment relationship in all its
aspects, and in consideration of the mutual covenants and promises
herein contained, including the waiver and release of rights and
claims by Employee as set forth below, and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, Employee and DTG agree as follows:
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1.1
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Separation . Employee's
employment with DTG shall cease December 31, 2007 (the "Separation
Date").
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2.
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COVENANTS AND OBLIGATIONS OF
DTG .
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2.1
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Lump Sum Payment . DTG
will pay Employee a lump sum salary payment
of $154,847.94 representing an amount equivalent to Employee’s bi-weekly
base rate of pay of $11,911.38
in effect as of the Separation Date salary for a
period of twenty-six (26) weeks
payable on January 11, 2008. The lump sum salary
payment shall not include any increase, adjustment or allowance to
regular earnings unless otherwise specifically provided for in this
Agreement. The lump sum salary payment is subject to all applicable
federal, state and local taxes and assessments, which will be
withheld by DTG. Employee may not contribute to the 401(k) Plan
subsequent to the Separation Date.
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2.2
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Continuing Health Care Benefits
. Employee’s separation from DTG on the
Separation Date shall be a “qualifying event” as such
term is defined under COBRA. No later than the January 11, 2008,
DTG shall pay Employee the sum of $5,738.98 representing an amount
equivalent to: (1) $3,646.98
in COBRA premiums payable by Employee to maintain
health care benefits as provided under COBRA for Employee and any
dependents of Employee for a period of twenty-six (26) weeks and (2)
$2,091.91 to offset any
income tax liability associated with the payment of applicable
COBRA premiums.
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In order to maintain the group health care benefits
pursuant to the preceding sentence, Employee must elect COBRA
benefits and must timely pay the full
1
amount of any COBRA premiums to maintain continuing
health care coverage as provided under COBRA. The failure by
Employee to timely pay the full amount of the COBRA premiums will
result in the termination of continuing health care benefits under
COBRA.
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2.3
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Exec-U-Care . No later
than January 11, 2008, DTG shall pay Employee the sum of
$2,489.44 representing:
(1) $1,582 in
premiums equivalent to an amount to maintain Exec-U-Care benefits
for an additional period of twenty-six
(26) weeks and (2) $907.44 to offset any income tax
liability associated with the payment of applicable Exec-U-Care
premiums.
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2.4
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Annual Executive Incentive Compensation
Program .
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2.4.1
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2007 . Provided that
the pre-tax profit objectives established for 2007 in the Annual
Executive Incentive Compensation Program (“2007
Program”) are met, DTG will pay Employee an amount equal to
Employee’s individual target percentage of sixty percent
(60%) of annual base rate of pay multiplied by the “payout
percentage” pursuant to the 2007 Program, which “payout
percentage” is not determined until year end results are
final, and prorated from January 1, 2007 through the Separation
Date. The amount to be paid in the preceding sentence will be
subject to withholding for applicable Federal, state and local
taxes and assessments and shall be paid on or before March 7,
2008.
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2.4.2
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Severance . No later
than January 11, 2008, DTG will pay Employee the sum of
$92,908.76 in lieu of
incentive compensation equal to the potential pay-out for the
period of twenty-six (26)
weeks.
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2.5
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Unused Accrued Vacation and Personal
Holiday . DTG will pay Employee vacation
and personal holiday pay in an amount equal to
280 hours ,
less: (1)
applicable federal, state, and local taxes and assessments required
to be withheld by DTG and (2) any vacation hours used by Employee
prior to the Separation Date and pending processing as of the
Separation Date (“Vacation Pay”). The total hours were
calculated as follows: (1) Employee’s accumulated and unused
vacation hours as of December 31, 2006, plus (2) awarded vacation hours
as of January 1, 2007, plus (3) personal holiday,
and less (4) any vacation hours and/or the personal holiday taken since
January 1, 2007. In lieu of prorating vacation hours which were
awarded in advance of accrual as of the Separation Date pursuant to
DTG’s vacation policy, DTG waives such proration. The
Vacation Pay shall be paid regardless of Employee’s decision
whether to execute this Agreement and in accordance with applicable
state law on or following the Separation Date.
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2.6
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Deferred Compensation Plan .
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2.6.1
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DTG shall continue to contribute
seven percent (7%) of
Employee’s base salary in lieu of deferred compensation under
the Deferred Compensation Plan during the Salary Continuation
Period.
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2.6.2
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On January 11, 2008, DTG shall pay Employee the sum
of $10,839.36 in
lieu of deferred compensation payable with respect to the total
amount of the lump sum payment to be paid pursuant to Section
2.1.
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2.6.3
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Likewise to Sections 2.6.1 and 2.6.2, in the event
DTG pays Employee an incentive compensation award pursuant to
Section 2.4.1 above, on March 7, 2008, DTG shall pay
seven percent (7%) of
the prorated incentive compensation award to Employee in lieu of
deferred compensation.
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2.6.4
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DTG shall pay Employee the sum of
$6,503.61 , no later
than January 11, 2008, representing seven
percent (7%) of the amount to be paid to
Employee pursuant to Section 2.4.2.
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2.7
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Target (Performance) Shares
. The following provisions shall govern shares of
restricted Common Stock of DTG granted under the Performance Share
Grant Agreements specified below (collectively, such shares of
restricted DTG Common Stock referred to as “Target
Shares”).
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2.7.1
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2005 Grant and Issuance of Shares
. In accordance with the terms of that certain
Performance Share Grant Agreement dated May 20, 2005 between DTG
and Employee (“2005 Agreement”), 8,000 Target Shares
were granted under the 2005 Agreement. No later than March 7, 2008,
DTG shall issue Employee a stock certificate representing
non-forfeited Target Shares under the 2005 Agreement when the
payment has been approved by the Human Resources and Compensation
Committee of the Board of Directors of DTG and when other DTG
employees are paid, subject to applicable federal, state and other
tax withholdings. Notwithstanding any provision in the 2005
Agreement to the contrary, the non-forfeited Target Shares shall be
deemed fully vested concurrent with the payment approval in the
foregoing sentence.
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2.7.2
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2006 Grant . In accordance with the
terms of that certain Performance Share Grant Agreement dated
effective February 1, 2006 between DTG and Employee (“2006
Agreement”), 7,128 Target Shares were granted under the 2006
Agreement.
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2.7.3
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2007 Grant . In accordance with the
terms of that certain Performance Share Grant Agreement dated
effective February 1, 2007 between DTG and Employee (“2007
Agreement”), 5,400 Target Shares were granted under the 2007
Agreement.
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2.7.4
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Pro-rated Target Shares, Vesting and
Payment . All Target Shares under the
2006 Agreement and 2007 Agreement shall be prorated as of the
Separation Date. The following table sets forth Target Shares which
are not forfeited under each applicable agreement and Target Shares
which are forfeited:
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3
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Non-forfeited Target
Shares
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Forfeited Target
Shares
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2006 Agreement
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4,752
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2,376
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2007 Agreement
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1,800
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3,600
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Notwithstanding any provision in the 2006 Agreement
and 2007 Agreement to the contrary, the prorated Target Shares
shall be deemed fully vested as of the Effective Date and shall not
be subject to further adjustment. No later than March 7, 2008, DTG
shall issue Employee a stock certificate representing non-forfeited
Target Shares under the 2006 Agreement and 2007 Agreement, subject
to applicable federal, state and other tax withholdings.
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2.8.1
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Lump Sum Payment . On or before 5:00 p.m. (Eastern/Tampa time) on the
Separation Date, Employee shall return the DTG vehicle assigned to
Employee (“Vehicle”) to DTG’s Florida Region
headquarters in Tampa or at such other DTG location as reasonably
agreed upon by DTG, unless Employee has exercised the option to
purchase the Vehicle, as set forth below, in which event Employee
shall have no obligation to return the purchased Vehicle. In lieu
of the continued use of the Vehicle as of the Separation Date for a
period of twenty-six weeks from January 1, 2008, DTG agrees to pay
Employee $5,375.00 on January 11, 2008. The payment in the preceding sentence
shall be subject to all applicable federal, state and local taxes
and assessments, which will be withheld by DTG.
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2.8.2
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Purchase Option .
Employee shall have the option to purchase the Vehicle on or before
the Separation Date at the greater of the fair market value of such
Vehicle, as determined by DTG in its sole discretion, or the net
book value.
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2.9
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Employee Travel Expenses . Employee shall promptly and properly complete, in accordance
with DTG’s travel reimbursement policy, and submit to DTG,
Travel Expense Reports for all outstanding travel expenses eligible
for reimbursement as of the Separation Date, notwithstanding the
decision of Employee to execute this Agreement. Incomplete or
improperly documented Travel Expense Reports may, at the sole
discretion of DTG, be rejected as to payment and returned to
Employee for completion. Any Travel Expense Report not timely
submitted or rejected twice for lack of or missing documentation
shall automatically be deemed as rejected for payment.
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2.10
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Outplacement Assistance . DTG will provide Employee with professional outplacement
assistance by Right Associates for a period of six (6) months from
the Separation Date at DTG’s sole expense.
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2.11
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Neutral Job Reference .
DTG agrees whenever in the future it receives a request for
information or reference regarding Employee’s employment with
DTG, DTG will provide only neutral employment information verifying
the position Employee held and the dates of Employee’s
employment.
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2.12
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Ayco Financial Counseling Services
. In lieu of the continued use of the financial
counseling services subsequent to December 31, 2007 and to cover
2007 income tax preparation expenses, DTG shall pay Employee the
sum of $4,645.27 on January 11, 2008, subject to applicable federal, state and
local taxes and assessments to be withheld by DTG.
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3.
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RELEASE OF CLAIMS, COVENANTS AND OBLIGATIONS
OF EMPLOYEE .
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3.1
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Officer Resignations .
Employee shall resign as Executive Vice President –
International of DTG, together with all other officer positions
held by Employee in subsidiaries and affiliates of DTG, if any, as
of the Separation Date.
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3.2
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Release of All Claims .
It is the intention of the parties hereto that execution of this
Agreement will forever bar any and all claims of whatsoever kind
and nature arising from or related to Employee's employment with
DTG through the Effective Date, known or suspected to exist now,
and those which are unknown and not suspected to exist now, except:
(i) those related to the parties' performance under this Agreement
and (ii) any claims arising after the execution of this
Agreement.
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In exchange for the additional consideration
provided herein, including, but not limited to, the continuing
benefits to be provided and payments to be made by DTG pursuant to
Sections 2.2 through 2.4, 2.6, 2.8 and 2.10, which Employee
acknowledges is over and above any benefits Employee may be
entitled to receive under normal company policy, Employee, on
behalf of Employee’s self and Employee’s heirs,
executors, representatives, administrators, successors and assigns,
does hereby fully, finally, irrevocably and forever unconditionally
release, acquit and discharge DTG and its subsidiaries and
affiliates, and their respective officers, directors, stockholders,
employees, representatives, attorneys, successors and assigns, and
all persons acting by, through, under or in concert with any of
them, from any and all claims, demands, liabilities, obligations,
rights, controversies, actions, causes of action, damages, costs,
losses, debts, accounts, charges and expenses (including all
statutory and common law claims for attorneys’ fees and
costs), of whatsoever kind and nature, whether known or unknown,
which Employee may have, now or in the future, arising from or in
connection with Employee's employment with DTG, except as excluded
in the preceding paragraph (collectively, the
“Claims”). With the foregoing release and waiver,
Employee knowingly and willingly waives all present and future
Claims which might or could have been asserted on or behalf of
Employee arising from or related to the prior employment
relationship between DTG and Employee, up to and including the date
of this Agreement.
The foregoing includes, without limitation, any
Claims that Employee may have against DTG under Title VII of the
Civil Rights Act of 1964, as amended, 42
5
U.S.C. §§2000e et
seq .; the Civil Rights Act of 1991; the
Civil Rights Act of 1866 and/or 1871; the National Labor Relations
Act, as amended, by 29 U.S.C. §§ 151
et seq.; the
Age Discrimination In Employment Act of 1967, as
amended, 29 U.S.C. §§621 et seq .
; the Older Workers
Benefits Protection Act of 1990 ; the
Fair Labor Standard Act of 1938, as amended, 29 U.S.C.
§§201; Executive Order 11246, the Equal Pay Act of 1963;
the Employment Retirement Income Security Act of 1974, as amended,
29 U.S.C. §§1001 et
seq. ; the Rehabilitation Act of 1973, as
amended, 29 U.S.C. §§701 et
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