EXHIBIT 10.13
ANC RENTAL CORPORATION
KEY EMPLOYEE RETENTION PLAN AND AGREEMENT
This Plan and Agreement (the "Agreement") is made between ANC Rental
Corporation (the "Company") and ___________________________ (the "Participant",
and together with all other participants who have entered into an ANC Rental
Corporation Key Employee Retention Plan and Agreement, the "Participants").
1) PURPOSE. The purpose of the ANC Rental Corporation Key Employee
Retention Plan and Agreement (the "Plan") is to retain certain
employees key to the near-term success of the Company (i) by providing
a financial incentive for the Participants to remain as employees of
the Company and participate in achieving the Company's success and (ii)
by providing security to the Participants generally against
unanticipated termination of employment.
2) PARTICIPATION. Only those employees selected by the President of the
Company shall be eligible to participate in the Plan. The Plan is
implemented through individualized agreements (the "Agreements")
entered into between the Company and each Participant, which Agreement
is set forth herein. The Plan becomes effective with respect to a
Participant immediately upon such Participant and an appropriate
officer of the Company executing this Agreement (the "Effective Date").
The Participant has no more than 14 days from the date he or she
receives the Agreement to sign and return the Agreement to the Senior
Vice President of Human Resources of the Company. Eligibility to
participate in the Plan shall be limited as follows: any Participant
who purchases the Company or substantially all the assets of the
Company, or who holds an interest in excess of 1% ownership in an
entity that purchases the Company or substantially all the assets of
the Company, shall not be entitled to receive any payments under the
Plan.
3) BASE AMOUNT RETENTION PAYMENT. Upon satisfaction of the conditions set
forth herein, the Participant is eligible to receive a base amount
retention payment (the "Base Amount Retention Payment") in an amount
equal to 50% of the Participant's annual base salary as of the
effective date (the "Annual Base Salary"). On the Effective Date, the
Participant is fully vested in his or her Base Amount Retention
Payment.
4) HOLDBACK RETENTION PAYMENT. Upon satisfaction of the conditions set
forth herein, the Participant is eligible to receive a holdback
retention payment (the "Holdback Retention Payment") in accordance with
the following chart based upon the occurrence of a "Triggering Event"
(as defined below) and the amount of "Distributable Value" (as defined
below):
TIER I $500MM-$699MM Distributable $700MM-UP Distributable
Value Value
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Triggering Event on or before 150% of Holdback Retention 150% of Holdback Retention
12/31/02 Payment Payment
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Triggering Event after 12/31/02 125% of Holdback Retention 150% of Holdback Retention
but on or before 3/31/03 Payment Payment
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Triggering Event after 3/31/03 100% of Holdback Retention 100% of Holdback Retention
but on or before 6/30/03 Payment Payment
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Triggering Event after 6/30/03 50% of Holdback Retention Payment 50% of Holdback Retention
but on or before 12/31/03 Payment
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TIER II $500MM-$699MM Distributable $700MM-UP Distributable Value
Value
----------------------------------- ---------------------------------- ---------------------------------
Triggering Event on or before 150% of Holdback Retention 150% of Holdback Retention
12/31/02 Payment Payment
----------------------------------- ---------------------------------- ---------------------------------
Triggering Event on or before 125% of Holdback Retention 150% of Holdback Retention
3/31/03 Payment Payment
----------------------------------- ---------------------------------- ---------------------------------
Triggering Event on or before 100% of Holdback Retention 100% of Holdback Retention
6/30/03 Payment Payment
----------------------------------- ---------------------------------- ---------------------------------
Triggering Event after 6/30/03 50% of Holdback Retention Payment 50% of Holdback Retention
but on or before 12/31/03 Payment
----------------------------------- ---------------------------------- ---------------------------------
A) Holdback Retention Payment for Tier I shall equal 50% of
Annual Base Salary.
Holdback Retention Payment for Tier II shall equal 25% of
Annual Base Salary.
Tier III employees shall receive no Holdback Retention
Payments.
B) A "Triggering Event" occurs when:
1) With respect to a plan of reorganization of the
Company under chapter 11 (a "Plan of
Reorganization"), the date upon which the Disclosure
Statement is approved by the United States Bankruptcy
Court for the District of Delaware (the "Bankruptcy
Court"), so long as the Plan of Reorganization is
subsequently confirmed by the Bankruptcy Court
without material modifications.
2) With respect to a sale, the date upon which a motion
seeking approval of the sale of all or substantially
all of the operating assets of the Company (a "Sale")
is approved, so long as the Sale is subsequently
consummated without material modifications.
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C) "Distributable Value" shall include cash, securities and other
consideration distributed to pre-petition secured, priority
and unsecured creditors and shareholders. Distributable Value
will not include cure payments paid as part of a confirmed
Plan of Reorganization or Sale, or cash or securities
distributed or to be distributed to Liberty Mutual Insurance
Company ("Liberty") as part of a confirmed Plan of
Reorganization or Sale, or any proceeds or consideration
realized from the diminution or application of collateral
which otherwise secures any pre- or post-petition liquidated,
unliquidated or contingent claims of Liberty. The
determination of Distributable Value will be agreed to by
advisors for the Official Committee of Unsecured Creditors,
Lehman Brothers, Inc., Congress Financial Corporation, Liberty
Mutual Insurance Company, and the Debtors. If these parties
cannot agree on the valuation, the Court shall determine the
appropriate valuation.
5) RIGHT TO PAYMENT OF BENEFITS. The Participant shall have no right to
receive payment of his or her Retention Payments, and his or her
Retention Payments shall be forfeited in their entirety, unless he or
she remains employed until the Retention Payments are payable under
paragraph 6, except for Participants who will receive Retention
Payments pursuant to paragraph 6(A)(2). The Participant's entitlement
to the Retention Payments are conditioned upon the Participant
executing and delivering on the date that he or she otherwise becomes
entitled to the Retention Payments the Release and Agreement (the
"Release") attached as Annex A hereto and not revoking the Release as
provided therein.
6) FORM AND TIMING OF PAYMENT OF BENEFITS. The Participant shall be
entitled to receive his or her Retention Payments which have not been
forfeited under paragraph 5 as follows:
A) Base Amount Retention Payment:
The Participant shall be entitled to receive his or her Base
Amount Retention Payment upon the earliest of:
1) June 30, 2003,
2) The Participant's involuntary termination of
employment by the Company "other than for cause" or
due to the death or "permanent disability" of the
Participant. For purposes of the Plan, termination
"for cause" means termination of the Participant by
the Company by reason of the Participant's
dishonesty; misconduct; unavailability to work other
than due to illness or disability; breach of the
provisions of any agreement between the Participant
and the Company; intentional disclosure to any other
person or entity of information which the Company
considers proprietary or confidential; or material
failure to perform the duties of the Participant's
position. A Participant shall also be deemed to have
experienced an involuntary termination of employment
"other than for cause" if he or she terminates his or
her employment within one month after a reduction of
the Participant's annual base salary or aggregate
level of benefits (other than reductions in benefits
applicable to substantially all similarly situated
employees); a material reduction in the Participant's
level of responsibility; or the Company requiring the
Participant (without the Participant's consent) to be
based at any location outside a fifty (50) mile
radius of his principal location of employment as of
the date hereof. A Participant shall be deemed to
have become "permanently disabled" for purposes of
this Plan if the President of the Company (or in the
case of the Chief Executive Officer, the Compensation
Committee of the Board), finds, upon the basis of
medical evidence satisfactory to him (or it),
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that the Participant is totally disabled, whether due
to physical or mental condition, so as to be
prevented from engaging in further employment by the
Company and that such disability will be permanent
and continuous during the remainder of his life;
provided that no Participant shall be deemed to have
become permanently disabled unless prior to the
foregoing determination, the Participant has been
determined to qualify for long-term disability
benefits under an applicable long-term disability
benefit plan of the Company.
3) The closing of a Sale, or
4) Substantial Consummation of a Plan of Reorganization
The Participant's Base Amount Retention Payment will be paid to him or
her in a lump sum as soon as practicable following the date on which
the Participant becomes entitled to such Retention Payment.
B) Holdback Retention Payment: The Participant shall be entitled
to receive his or her Holdback Retention Payment upon the
closing of the Sale, or substantial consummation of a Plan of
Reorganization.
7) EFFECT OF WARN ACT. Any Retention Payments that the Participant is
entitled to receive shall be reduced by up to sixty days' pay if the
Participant's termination is deemed covered by the Worker Adjustment
and Retraining Notification Act.
8) ADMINISTRATION. The Plan shall be administered by a committee composed
of three members designated by the Company's Board of Directors (the
"Committee"). The Committee shall be the named fiduciary and shall have
the sole discretion and authority to interpret the Plan, determine
eligibility and amount of benefits, including the sole discretion to
resolve claims pursuant to Section 9 hereof, to adopt and revise the
rules and regulations relating to the Plan and to make any other
determinations it believes necessary or advisable for the
administration of the Plan.
9) CLAIMS PROCEDURE
A) WRITTEN NOTICE. If a claim for benefits under the Plan is
denied, in whole or in part, the claimant shall be notified in
writing of the denial, the specific reason for the denial and
the Plan provisions on which the denial is based, within 30
days after the claim has been filed with the Committee. Such
claimant shall also be advised whether any additional material
or information is necessary to perfect the claim and shall be
provided with an explanation of the reasons why such material
is necessary and with an explanation of the Plan's claim
review procedure under Section 9.B.
B) APPEALS. In the event a claim for benefits under the Plan is
denied, in whole or in part:
i) The claimant (or his or her duly authorized
representative) shall be entitled to request in
writing a review of the denial of his claim by the
Committee within ninety (90) days after the claimant
received notice of the denial of his or her claim.
ii) The claimant (or his duly authorized representative)
may review pertinent Plan documents and submit issues
and comments to the Committee in writing.
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iii) All written claims that are neither granted nor
denied in accordance with Section 9.A shall be deemed
denied and the claimant shall be deemed to have filed
a written request for review.
iv) The decision of the Committee on review shall be
rendered within 60 days after the request for review
is received by the Committee unless special
circumstances require an extension of time for
processing the claim, in which case a decision shall
be rendered not later than 120 days after receipt of
a request for review by the Committee.
v) The claimant shall be furnished with written notice
of any such extension of time prior to the
commencement of the extension.
vi) If the decision of the Committee on review is not
furnished within the time specified in subparagraph
(iv) above, the claim shall be deemed denied on
review.
vii) The decision of the Committee on review shall be in
writing and shall include specific reason for the
decision and specific references to the pertinent
Plan provisions on which the decision is based.
All decisions of the Committee relating to a claim for benefits
hereunder shall be final, binding and conclusive on the Participant.
10) MISCELLANEOUS PROVISIONS
A) The Participant's right and interest under the Plan may not be
assigned or transferred. In the case of the Participant's
death, payment of benefits due under the Plan shall be made to
the Participant's designated beneficiary, or in the absence of
a designation, by will or the laws of descent and
distribution.
B) Neither the Plan nor any actions taken hereunder shall be
construed as giving the Participant any right to be retained
in the employ of the Company.
C) The Plan trustee shall deduct from any benefits paid in cash
any taxes required to be withheld by law by the Company or the
Plan.
11) AMENDMENT AND TERMINATION OF PLAN. The Company's Board of Directors may
amend the Plan with the approval of the Bankruptcy Court in whole or in
part at any time, provided that the rights of any Participant under the
Plan at the time of amendment may not be reduced. The Plan shall
terminate as soon as all benefits have been paid and/or disputes
resolved. A Participant may not withdraw from this Plan or refuse to be
bound by the terms hereof without the prior written consent of the
Company.
12) GOVERNING LAW. This Plan shall be governed by the laws of the State of
Florida, except to the extent preempted by federal law.
13) EFFECTIVE DATE. The Plan and this Agreement shall be effective March
27, 2002.
14) WAIVER OF RIGHTS. Upon signing this Agreement and becoming a
Participant in the Plan, the Participant unconditionally waives any and
all of his or her rights (i) pursuant to the ANC Rental Corporation Key
Employee Severance Protection Plan, from which plan the Participant is
withdrawing upon the execution hereof; (ii) to any severance payment
under
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any other plan or arrangement that the Company maintains for so long as
the Participant is eligible for or until the Participant receives a
Retention Payment under the Plan; (iii) to any payments under any
performance bonus or incentive plan maintained by the Company for so
long as the Participant is eligible for or until the Participant
receives a Retention Payment under the Plan.
15) COURT APPROVAL. The Plan is not effective until it is approved by the
United States Bankruptcy Court.
ANC RENTAL CORPORATION
By:
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Title:
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Date:
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(Employee Name)
Date:
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