EXHIBIT 10.33
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EMPLOYMENT AND RETIREMENT AGREEMENT
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This Employment and Retirement Agreement (this "Agreement") is made
and entered into this 26th day of September, 2003, by and between Dollar Thrifty
Automotive Group, Inc., a Delaware corporation (the "Company," a term which in
this Agreement shall include its subsidiaries, related or affiliated companies,
officers, directors, stockholders, members, employees, heirs, successors,
assigns, representatives, agents and counsel, unless the context otherwise
clearly requires), and Joseph E. Cappy ("Executive").
WITNESSETH:
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WHEREAS, Executive is an employee and director of the Company and
currently serves as Chairman of the Board of Directors and Chief Executive
Officer of the Company;
WHEREAS, Executive will voluntarily relinquish his position as
Chairman and Chief Executive Officer of the Company on September 30, 2003, will
remain a director, and the Company and Executive have determined that Executive
shall resign as a director of the Company effective December 31, 2003, and shall
retire as an employee of the Company effective December 31, 2003; and
WHEREAS, the Company and Executive desire to make provision for the
payments and benefits that Executive will be entitled to receive from the
Company in consideration for Executive's obligations and actions under this
Agreement and in connection with such retirement;
NOW, THEREFORE, in consideration of the premises and the promises and
agreements contained herein and other good and valuable consideration, the
sufficiency and receipt of which are hereby acknowledged, and intending to be
legally bound, the Company and Executive agree as follows:
1. Effective Date of Agreement. This Agreement is effective on
September 30, 2003 (the "Effective Date") and shall continue in effect as
provided herein.
2. Employment. Commencing on the Effective Date, Executive's
employment shall continue through December 31, 2003 (the "Employment
Term"), subject to the provisions hereof.
3. Duties During Employment Term. Executive's principal duties and
authority during the Employment Term will be to serve as an advisor to the
Chief Executive Officer of the Company.
4. Compensation During Employment Term. During the Employment Term,
the Company shall:
(a) continue to pay Executive an annualized base salary at the level
thereof on the Effective Date in accordance with the Company's regular
payroll practices;
(b) maintain Executive's office and support staff during the
Employment Term at the level provided on the Effective Date; and
(c) except as otherwise provided in Paragraph 15 hereof, continue to
permit Executive to participate in the Company's group medical and
life insurance programs and to receive all other non-cash perquisites
previously provided to Executive, e.g., investment counseling, country
club charges, car lease and allowance, as if he remained Chief
Executive Officer of the Company, on the same basis that Executive has
participated in such programs until the end of the Employment Term.
5. Resignation and Retirement.
(a) Executive hereby, effective the Effective Date, resigns as
Chairman of the Board of Directors and Chief Executive Officer of the
Company.
(b) Executive hereby (i) effective December 31, 2003 (the "Retirement
Date") resigns and retires as an employee of the Company, and, (ii) to
the extent not previously accomplished, (A) resigns from all boards
and offices of any entity that is a subsidiary of or is otherwise
related to or affiliated with the Company, (B) resigns from all
administrative, fiduciary or other positions he may hold or have held
with respect to arrangements or plans for, of or relating to the
Company, and (C) agrees to resign from any nonprofit positions related
to his services to the Company as the Company may request. The Company
hereby consents to and accepts said resignations, and the Company
records shall so reflect.
(c) Executive hereby, effective December 31, 2003, resigns as a
member of the Company's Board of Directors.
(d) Upon his retirement, Executive shall be entitled to retirement
benefits under plans of the Company in accordance with their terms.
(e) On January 2, 2004 the Company shall pay the final $203,326
premium on the parties' split dollar life insurance arrangements.
6. Releases by Executive.
(a) In consideration of the payment to be received by Executive
pursuant to Paragraph 4 of this Agreement, Executive, for himself and
his dependents, successors, assigns, heirs, executors and
administrators (and his and their legal representatives of every
kind), hereby releases, dismisses, remises and forever discharges the
Company from any and all arbitrations, claims, including claims for
attorney's fees, demands, damages, suits, proceedings, actions and/or
causes of action of any kind and every description, whether known or
unknown ("claims"), which Executive now has or may have had for, upon,
or by reason of:
(i) Executive's employment by or service with the Company to the
Effective Date;
(ii) discrimination, including but not limited to claims of
discrimination on the basis of sex, race, age, national origin,
marital status, religion or handicap, including, specifically,
but without limiting the generality of the foregoing, any claims
under the Age Discrimination in Employment Act, as amended, Title
VII of the Civil Rights Act of 1964, as amended, the Americans
with Disabilities Act, and any claims under applicable state
laws; and
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(iii) breach by the Company of any contract or promise, express or
implied, on or prior to the Effective Date;
provided, however, that the foregoing shall not apply to claims to enforce
rights that Executive may have as of the Effective Date under any of the
Company's plans and agreements, as provided in Paragraph 17 hereof, or under any
indemnification agreement between Executive and the Company, under the Company's
indemnification provided in its by-laws, under the directors' and officers'
liability coverage maintained by the Company, under Section 145 of the Delaware
General Corporation Law, or under this Agreement.
(b) Executive further agrees and acknowledges that:
(i) He has been advised by the Company to consult with legal
counsel prior to executing and delivering this Agreement and the
release provided for in this Paragraph 6, has had an opportunity
to consult with and to be advised by legal counsel of his choice,
fully understands the terms of this Agreement and release, and
enters into this Agreement and release freely, voluntarily and
intending to be bound;
(ii) He has been given a period of twenty-one 21) days to review
and consider the terms of this Agreement, and the release
contained herein, prior to its execution and that he may use as
much of the twenty-one (21) day period as he desires; and
(iii) He may, within seven (7) days after execution and delivery,
revoke this release. Revocation shall be made by delivering a
written notice of revocation to: Steven B. Hildebrand, Chief
Financial Officer at the Company. For such revocation to be
effective, written notice must be received by the Chief Financial
Officer at the Company no later than the close of business on the
seventh (7th) day after Executive executes this Agreement. If
Executive does exercise his right to revoke this release, the
Company shall not have any obligation to make payments or provide
benefits to Executive as set forth in Paragraph 4 of this
Agreement, except as may be required under the Consolidated
Omnibus Reconciliation Act of 1986 and except to the extent
Executive is entitled to such benefits by reason of agreements
and plans other than this Agreement.
(c) As a condition of the Company's obligation to make payments or
provide benefits to Executive as set forth in Paragraph 4 of this
Agreement, Executive shall, if requested by the Company, at the time
of his retirement as an employee of the Company pursuant to Paragraph
5 of this Agreement, execute and deliver a release substantially
similar in form and substance to this Paragraph 6, but effective as of
the Retirement Date.
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7. Confidential Information.
(a) Executive acknowledges and agrees to honor his obligation
respecting confidential and proprietary information of the Company
and/or information which is a trade secret of the Company under
general legal or equitable principles or statutes, which undertaking
shall remain in full force and effect following the Retirement Date.
8. Breach.
(a) Executive acknowledges and agrees that the remedy at law
available to the Company for breach by Executive of any of his
obligations under Paragraph 7 of this Agreement would be inadequate
and that damages flowing from such a breach would not readily be
susceptible to being measured in monetary terms. Accordingly,
Executive acknowledges, consents and agrees that, in addition to any
other rights or remedies which the Company may have at law, in equity
or under this Agreement, upon adequate proof of Executive's violation
of any provision of Paragraph 7 of this Agreement, the Company shall
be entitled to immediate injunctive relief and may obtain a temporary
order restraining any threatened or further breach, without the
necessity of proof of actual damage.
(b) The Company shall give Executive notice within 30 days following
the date that it concludes that Executive is in breach of this
Agreement. Prior to taking or commencing any action under Paragraph
8(a), the Company will provide Executive with the opportunity to
address the Board of Directors of the Company at its next regular
meeting or, at the option of the Company, a special meeting held for
such purpose. Nothing in this Paragraph 8 shall be construed to limit
or restrict Executive's right to seek judicial redress for any actions
taken by the Company in connection with this Paragraph 8 which
Executive reasonably believes to be contrary to the provisions of this
Agreement.
9. Continued Availability and Cooperation.
(a) Executive shall cooperate fully with the Company and with
the Company's counsel in connection with any present and future actual
or threatened litigation or administrative proceeding involving the
Company that relates to events, occurrences or conduct occurring (or
claimed to have occurred) during the period of Executive's employment
by the Company. This cooperation by Executive shall include, but not
be limited to:
(i) making himself reasonably available for interviews and
discussions with the Company's counsel as well as for depositions
and trial testimony;
(ii) if depositions or trial testimony are to occur, making
himself reasonably available and cooperating in the preparation
therefor as and to the extent that the Company or the Company's
counsel reasonably requests;
(iii) refraining from impeding in any way the Company's
prosecution or defense of such litigation or administrative
proceeding; and
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(iv) cooperating fully in the development and presentation of the
Company's prosecution or defense of such litigation or
administrative proceeding.
(b) Executive shall be reimbursed by the Company for reasonable
travel, lodging, telephone and similar expenses, as well as reasonable
attorneys' fees (if independent legal counsel is necessary), incurred
in connection with such cooperation, consultation and advice.
Executive shall not unreasonably withhold his availability for such
cooperation, consultation and advice.
10. Successors and Binding Agreement.
(a) This Agreement shall be binding upon and inure to the benefit of
the Company and any successor of or to the Company, including, without
limitation, any persons acquiring directly or indirectly all or
substantially all of the business and/or assets of the Company whether
by purchase, merger, consolidation, reorganization or otherwise (and
such successor shall thereafter be deemed included in the definition
of "the Company" for purposes of this Agreement), but shall not
otherwise be assignable or delegable by the Company.
(b) This Agreement shall inure to the benefit of and be enforceable
by Executive's personal or legal representatives, executors,
administrators, successors, heirs, distributees and/or legatees. The
death or disability (temporary or permanent) of Executive following
the execution and delivery of this Agreement shall not affect or
revoke this Agreement or excuse any of the obligations of the parties
hereto.
(c) This Agreement is personal in nature and neither of the parties
hereto shall, without the consent of the other party, assign, transfer
or delegate this Agreement or any rights or obligations hereunder
except as expressly provided in subparagraphs (a) and (b) of this
Paragraph 10.
(d) This Agreement is intended to be for the exclusive benefit of
the parties hereto, and except as provided in subparagraphs (a) and
(b) of this Paragraph 10, no third party shall have any rights
hereunder.
(e) The Company will require any successor (whether direct or
indirect, by purchase, merger, consolidation, operation of law or
otherwise) to all or substantially all of the business and/or assets
of the Company to assume expressly and agree to perform this Agreement
in the same manner and to the same extent that the Company would be
required to perform this Agreement.
11. Non-Disclosure. Except to the extent that this Agreement or
the terms hereof become publicly known or available because of legally
mandated disclosure and filing requirements of the Securities and Exchange
Commission, or because of any other legal requirement that this Agreement
or the terms hereof be disclosed, all provisions of this Agreement and the
circumstances giving rise hereto are and shall remain confidential and
shall not be disclosed to any person not a party hereto (other than (i)
Executive's spouse, (ii) each party's attorney, financial advisor and/or
tax advisor to the extent necessary for such advisor to render appropriate
legal, financial and tax advice, and (iii) persons or entities that fall
within the scope of Paragraph 7 of this Agreement, but only to the extent
required thereby).
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12. Notices. For all purposes of this Agreement, all communications
provided for herein shall be in writing and shall be deemed to have been
duly given when delivered, addressed to the Company (to the attention of
the: Chief Financial Officer at its principal executive offices and to
Executive at his principal residence, 6699 S. Timberlane Road, Tulsa,
Oklahoma 74136, or to such other address as either party may have furnished
to the other in writing and in accordance herewith. Notices of change of
address shall be effective only upon receipt.
13. Professional Fees. (a) The Company and Executive acknowledge and
agree that each shall be responsible for the payment of their respective
professional fees and costs (and related disbursements) incurred in
connection with Executive's termination and resignation and all matters
relating to the negotiation and execution of this Agreement.
(b) It is the intent of the Company and Executive that, following a
"Change in Control," Executive shall not be required to incur legal
fees and the related expenses associated with the interpretation,
enforcement or defense of his rights under this Agreement by
litigation or otherwise because the cost and expense thereof would
substantially detract from the benefits intended to be extended to
Executive hereunder. For purposes of this Paragraph 13(b), "Change in
Control" shall have the meaning given such term under the Employment
Continuation Plan for Key Employees of Dollar Thrifty Automotive
Group, Inc. as in effect on the Effective Date. Accordingly, following
a Change in Control, if it should appear to Executive that the Company
has failed to comply with any of its obligations under this Agreement
or in the event that the Company or any other person takes or
threatens to take any action to declare this Agreement or any
provision hereof void or unenforceable, or institutes any litigation
or other action or proceeding designed to deny, or to recover from,
Executive the benefits provided or intended to be provided to
Executive hereunder, the Company irrevocably authorizes Executive from
time to time to retain counsel of his choice, at the expense of the
Company as hereafter provided, to advise and represent Executive in
connection with any such interpretation, enforcement or defense,
including without limitation the initiation or defense of any
litigation or other legal action, whether by or against the Company or
any director, officer, stockholder or other person affiliated with the
Company in any jurisdiction. Notwithstanding any existing or prior
attorney-client relationship between the Company and such counsel, the
Company irrevocably consents to Executive's entering into an
attorney-client relationship with such counsel, and in that connection
the Company and Executive agree that a confidential relationship will
exist between Executive and such counsel. Without respect to whether
Executive prevails in whole or in part, in connection with any of the
foregoing, the Company shall pay and be solely financially responsible
for any and all attorneys' and related fees and expenses incurred by
Executive in connection with any of the foregoing. Notwithstanding the
preceding provisions of this Paragraph 13(b), legal fees and related
expenses shall not be reimbursed pursuant to this Paragraph 13(b) if
an independent party reasonably satisfactory to the Company and
Executive determines that the underlying claim by Executive (i) is not
likely to exceed $5,000.00, (ii) is not eligible for reimbursement
pursuant to this Paragraph 13(b), (iii) has no reasonable basis in law
or in fact, or (iv) is not being pursued in a manner consistent with
the nature and magnitude of such claim.
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14. Taxes, Payments, etc. Executive acknowledges and agrees that he
shall be responsible for his share of any and all Federal, State and/or
local taxes applicable to the payments made, and benefits provided or made
available, to Executive pursuant to this Agreement and further agrees to
indemnify the Company against any liability as a result of those taxes.
15. Employment Continuation Agreement. The Employment Continuation
Agreement dated as of September 29, 1998, as amended, between the Company
and Executive is hereby terminated in its entirety effective on the
Effective Date, and Executive shall have no rights, and the Company shall
have no obligations, under such Employment Continuation Agreement.
16. Amendment and Waiver. No provision of this Agreement may be
modified, waived or discharged unless such waiver, modification or
discharge is agreed to in writing signed by Executive and the Company. No
waiver by either party hereto at any time of any breach by the other party
hereto or compliance with any condition or provision of this Agreement to
be performed by such other party shall be deemed a waiver of similar or
dissimilar provisions or conditions at the same or at any prior or
subsequent time.
17. Entire Agreement; Continuing Indemnification Rights. This
Agreement shall constitute the entire agreement between the parties hereto
with respect to the subject matters covered by this Agreement and shall
supersede all prior verbal or written agreements, covenants,
communications, understandings, commitments, representations or warranties,
whether oral or written, by any party hereto or any of its representatives
pertaining to such subject matter, provided, however, that this Agreement
is not intended to amend, supersede or terminate any rights Executive has
accrued prior to the Effective Date pursuant to the provisions of any
existing incentive compensation plan, stock option agreement, restricted
stock or performance share agreement, deferred compensation plan, letter
agreement regarding Company vehicles, split-dollar life insurance plans,
and employee pension benefit plan and welfare benefit plan, except to the
extent specifically provided in one or more provisions of this Agreement.
This Agreement shall not affect any indemnification or other rights under
any indemnification agreement between Executive and the Company or the
Company's by-laws. The Company shall continue Executive's coverage under
the directors' and officers' liability coverage maintained by Company, as
in effect from time to time, to the same extent as other current and former
senior executive officers and directors of the Company.
18. Governing Law. The validity, interpretation, construction and
performance of this Agreement shall be governed by the substantive laws of
the State of Delaware, without giving effect to the principles of conflict
of laws of such State.
19. Survival. In the event Executive exercises his right to revoke
the release provided for in Paragraph 6 of this Agreement, the Company
shall have no further obligations under Paragraph 4 of this Agreement, and
all other provisions of this Agreement shall remain in full force and
effect.
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20. Venue. Each of the parties hereto (a) consents to submit
itself/himself to the personal jurisdiction of any federal or state court
sitting in Tulsa County, Oklahoma, in the event any dispute arises out of
this Agreement, (b) agrees that it/he will not attempt to deny or defeat
such personal jurisdiction by motion or other request for leave from any
such court and (c) agrees that it/he will not bring any action relating to
this Agreement in any court other than a federal or state court sitting in
Tulsa County, Oklahoma. Each of the parties hereby irrevocably waives any
objection that it/he may have or hereafter have to the laying of venue of
any such action or proceeding arising out of or based on this Agreement in
federal or state court sitting in Tulsa County, Oklahoma, and each hereby
further irrevocably waives any claim that any such action or proceeding in
any such court has been brought in an inconvenient forum. In the event that
either party to this Agreement is required to bring a legal action to
enforce the terms hereof, then the non-prevailing party shall reimburse the
prevailing party for its/his reasonable and necessary attorneys' fees
actually incurred in such legal action.
21. Severability. The invalidity or unenforceability of any provision
of this Agreement shall not affect the validity or enforceability of any
other provision of this Agreement which shall nevertheless remain in full
force and effect.
22. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same agreement.
23. Captions and Paragraph Headings. Captions and paragraph headings
used herein are for convenience and are not part of this Agreement and
shall not be used in construing it.
24. Authorization by the Company. The Company represents that this
Agreement and the actions required of the Company herein have been
authorized and approved by the Board of Directors of the Company.
25. Further Assurances. Each party hereto shall execute such
additional documents, and do such additional things, as may reasonably be
requested by the other party to effectuate the purposes and provisions of
this Agreement.
IN WITNESS WHEREOF, the parties have executed and delivered this
Agreement on the date set forth above.
DOLLAR THRIFTY AUTOMOTIVE GROUP, INC.
By: ___________________________________
Edward C. Lumley,
Director and Chairman of the Human
Resources and Compensation Committee
____________________________________
Joseph E. Cappy
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