Exhibit
10.209
SEPARATION
AGREEMENT
THIS SEPARATION
AGREEMENT ("
Agreement ") is made and entered into by and between
John J. Foley, Jr.
(" Employee "), an individual
who resides at 10114 S. Maplewood, Tulsa, OK 74137 and
Dollar Thrifty Automotive Group,
Inc. , a Delaware
corporation (" DTG "), with its principal place of business
located at Tulsa, Oklahoma.
PURPOSE
:
DTG has informed Employee that
effective October 13, 2008, Employee’s position as Senior
Executive Vice President and Chief Operating Officer has been
eliminated and Employee’s services are no longer required. 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 October 13,
2008 (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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Salary Continuation
. Commencing on the Separation Date,
DTG will provide Employee twenty-six and 34/100s (26.34) weeks
of salary continuation (the
“Salary Continuation Period”) payable bi-weekly at the
base bi-weekly rate of pay of $14,166.00 in effect as of the Separation Date. The base
rate of pay shall not include any increase, adjustment or allowance
to regular earnings unless otherwise specifically provided for in
this Agreement. Each bi-weekly salary continuation 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. During the Salary Continuation Period, instead of Employee
paying full COBRA premiums during such period, (1) DTG shall pay
the amount of any COBRA premiums in excess of the amount that was
deducted from Employee’s bi-weekly salary payment prior to
the Separation Date to maintain group health care benefits and (2)
Employee shall only pay an amount equal to that amount which was
deducted from Employee’s bi-weekly salary payment prior to
the Separation Date to maintain group health care benefits (the
“Co-pay Amount”). The Co-pay Amount to be paid by
Employee in the preceding sentence shall be billed to Employee by
DTG’s third party COBRA service provider. In order to
maintain the group health care benefits pursuant to the preceding
sentence, Employee must elect COBRA benefits and must timely pay
the Co-pay Amount.
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If the Employee has not timely
executed this Agreement as set forth in Section 3.4 below or has
executed but revoked this Agreement as set forth in Section 3.5
below, this Agreement shall not be enforceable or effective and DTG
shall have no obligation to pay the expense of continuing health
care benefits and Employee shall be obligated to pay the
full
amount of any COBRA premiums to
maintain continuing health care coverage as provided under COBRA.
The failure by Employee to timely pay either the Co-pay Amount or
the full amount of the COBRA premiums will result in the
termination of continuing health care benefits under COBRA. In the
event that Employee has elected COBRA and paid the full amount of
any COBRA premiums prior to this Agreement becoming effective, DTG
shall, subsequent to and in a reasonably prompt manner, reimburse
to Employee the amount of such COBRA premiums that Employee paid
which DTG would otherwise had been responsible to cover in excess
of the Co-pay Amount in the second sentence of this
Section.
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2.3
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Exec-U-Care
. Exec-U-Care benefits will be
provided to Employee during the period from the Separation date
through December 31, 2008.
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2.4.1
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Continued Use
. DTG agrees that Employee may
continue to use the DTG vehicle assigned to Employee (the
“Vehicle”) as of the Separation Date until 5:00 p.m.
(Tulsa time) on December 1, 2008, at which time and date Employee
shall return such Vehicle to DTG’s headquarters in Tulsa,
Oklahoma or at such other DTG location as reasonably agreed upon by
DTG should Employee reside outside of the Tulsa area. The
obligation to return the Vehicle is subject to whether 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. The continued use of the Vehicle shall be upon
the same terms and conditions set forth in the policy governing
such use by Employee prior to the Separation Date. In connection
with such use, DTG shall continue to impute the bi-weekly lease
value for the Vehicle, as of the Separation Date, and shall prorate
any partial calendar weeks and deduct all applicable
taxes.
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2.4.2
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Lump Sum Payment
. In lieu of the
continued use of the Vehicle for a period from December 1, 2008
through the last day of the Salary Continuation Period, DTG agrees
to pay Employee $3,626.00 on December 12, 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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2.4.3
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Purchase Option
. Employee shall have the option to
purchase the Vehicle, on or before December 1, 2008 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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2.5
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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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2.5.1
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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”), 13,365 Target Shares were granted
to Employee. The 2006 Target Shares shall be prorated as of the
Separation Date such that 12,417 Target Shares are not forfeited
under the 2006 Agreement and 948 Target Shares are forfeited.
Notwithstanding any provision in the 2006 Agreement to the
contrary, the non-forfeited Target Shares shall be deemed fully
vested as of the Effective Date. DTG shall issue Employee a stock
certificate representing non-forfeited Target Shares under the 2006
Agreement on the same date upon which DTG executives are issued
stock certificates for non-forfeited 2006 Target Shares, subject to
applicable federal, state and other tax withholdings.
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2.5.2
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2007 Grant
. In
accordance with the terms of that certain Performance Share Grant
Agreement dated effective February 1, 2007 pursuant to which 10,200
Target Shares were granted to Employee, no payout or award shall be
made.
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2.5.3
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2008 Grant
. In
accordance with the terms of that certain Performance Share Grant
Agreement dated effective February 1, 2008 pursuant to which 22,529
Target Shares were granted to Employee, no payout or award shall be
made.
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2.6
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Ayco Financial Counseling
Services . In connection
with the financial counseling services provided by The Ayco
Company, L.P. to DTG, subsequent to the Separation Date and
continuing through December 31, 2008, Employee shall continue to
receive financial counseling services during the Salary
Continuation Period and DTG shall continue to bear the expense of
such services provided to Employee by The Ayco Company,
L.P.
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2.7
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Stock Options
. Pursuant to those certain Stock
Option Agreements between Employee and DTG (“Stock Option
Agreement”), any vested, non-qualified stock options granted
pursuant to each applicable Stock Option Agreement which have not
been exercised as of the Separation Date shall be exercisable for a
period of six (6) months from the Separation Date, but not later
than the expiration date of a stock option. Any non-vested,
non-qualified stock options granted pursuant to each applicable
Stock Option Agreement shall automatically expire on the Separation
Date.
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2.8
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Paid Time-Off
. DTG will pay Employee paid
time-off (“PTO”) pay in an amount equal to
256 hours
, less: (1) applicable federal, state, and local taxes
and assessments required to be withheld by DTG and (2) any PTO
hours used by Employee prior to the Separation Date and that are
pending processing as of the Separation Date (“PTO
Pay”). The total hours of PTO Pay were calculated pursuant to
Policy No. HUM25 – Paid Time Off that addresses the payment
of PTO hours upon termination of employment. The PTO 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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2.9
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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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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, the
dates of Employee’s employment and that Employee’s
position was eliminated in connection with a reduction in
force.
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2.11
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Vehicle Non-revenue
Rentals . During the
Salary Continuation Period, Employee shall be entitled to rent
vehicles for Employee’s personal use on a non-revenue basis
from Dollar and Thrifty branded rental facilities operated by DTG
and it subsidiaries, or licensees of such subsidiaries.
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2.12
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Outplacement Services
. DTG will provide Employee with
professional outplacement/career transition assistance by Career
Development Service, Inc. pursuant to that certain letter dated
November 4, 2008, for a period of six (6) months from the Effective
Date at DTG’S sole expense.
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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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Director and Officer
Resignations . Employee
shall resign all director and 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 by reason of any matter,
cause or thing occurring, done or omitted to be done from the
beginning of the world until the date of the execution of this
Release as set forth more fully below, including without limitation
any and all claims 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' future performance under
this Agreement and pursuant to that certain Indemnification
Agreement dated effective May 20, 2005 between Employee and DTG
(“Indemnification 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 2.3, 2.4 and 2.6, which Employee acknowledges
is over and above any benefits Employee may be entitled to receive
under company guidelines, 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, whether in
law or equity and whether arising under federal, state or local law
which Employee may have, now or in the future, by reason of any
matter, cause or thing occurring, done or omitted to be done from
the beginning of the world until the date of the execution of this
Release, including without limitation any claim arising out of or
related to Employee's employment with DTG and termination of
employment with DTG, which Employee acknowledges was for
nondiscriminatory reasons, 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 that might or could have been
asserted on or behalf of 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 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
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