Exhibit 10.28


 


[REVISED FOR 

SECTION 409A 

COMPLIANCE]


 


AMENDED AND RESTATED

EMPLOYMENT AGREEMENT


 


This AMENDED AND RESTATED EMPLOYMENT AGREEMENT, dated as of
December 31, 2008, is between Hertz Global Holdings, Inc., a Delaware
corporation (the “Company”), and Mark P. Frissora (the “Executive”).


 


W I T N E S S E T H :


 


WHEREAS, the Executive has served and continues to serve
the Company as Chief Executive Officer, a member of and, as provided herein,
Chairman of, its Board of Directors and, in connection therewith, the Company
and the Executive, as of July 10, 2006, entered into this agreement (the “Agreement”)
to, among other things, set forth the terms of such employment; and


 


WHEREAS, the Executive and the Company now intend to amend
and restate this Agreement, as of December 31, 2008, to evidence changes
thereto made for the purpose of causing the Agreement to be in documentary
compliance with Section 409A of the Internal Revenue Code of 1986, as
amended (the “Code”), and the final regulations promulgated thereunder.


 


NOW, THEREFORE, in consideration of the premises and mutual
covenants contained herein and for other good and valuable consideration, the
Company and Executive hereby agree as follows:


 


1.                                       Agreement to Employ; Employment Period; No Conflict.


 


(a)                                  Upon the terms and subject to the conditions of this
Agreement, the Company hereby agrees to employ the Executive, and the Executive
hereby accepts such employment, for the period commencing on or before July 19,
2006 (the “Commencement Date”) until such employment terminates in
accordance with Section 5.  The
period during which the Executive is employed pursuant to this Agreement shall
be referred to as the “Employment Period.”


 


(b)                                 The Executive represents that he is entering into
this Agreement voluntarily and that his employment hereunder and compliance
with the terms and conditions hereof will not conflict with or result in the
breach by him of any agreement to which he is a party or by which he may be
bound.


 

















 


2.                                       Position and Responsibilities.  During the
Employment Period, the Executive will serve as Chief Executive Officer of the
Company and The Hertz Corporation, a Delaware corporation and the primary
operating subsidiary of the Company, with such duties and responsibilities as
are customarily assigned to individuals serving in such position and such other
duties and responsibilities consistent with his position and his duties and
responsibilities as Chief Executive Officer as may be specified by the Board of
Directors of the Company (the “Board”) from time to time.  During the Employment Period, the Executive
will serve as a member of the Board and shall serve as Chairman of the Board
commencing January 1, 2007 or, if the initial public offering of the
Company’s common stock is delayed beyond the time frame anticipated as of the
date hereof as a result of market conditions, he shall commence service as
Chairman of the Board by no later than March 31, 2007.  The Executive will report directly to the
Board.  During the Employment Period, the
Executive will devote all of his skill, knowledge and working time to the
conscientious performance of his duties and responsibilities hereunder, except
for (i) reasonable vacation time and absence for sickness or
similar disability and (ii) to the extent that it does not
interfere with the performance of the Executive’s duties hereunder, (A) such
reasonable time as may be devoted to service on boards of directors and the
fulfillment of civic responsibilities and (B) reasonable time as
may be necessary from time to time for personal financial matters.


 


3.                                       Compensation and Incentives.


 


(a)                                  Base Salary.  As compensation for the services
performed by the Executive hereunder, during the Employment Period the
Executive will be paid an annual base salary of $950,000, payable in accordance
with the Company’s normal payroll practices applicable to senior
executives.  The Board or authorized
committee thereof will review the Executive’s base salary at the same time it
reviews the base salary of the Company’s other senior executives (which
currently occurs on a 18-month cycle) and, in the discretion of the Board or
such authorized committee, may increase (but not decrease) such base salary
from time to time (as in effect from time to time, the “Base Salary”).  Payment of the Base Salary payable under this
Section 3(a) shall be deferred to the extent that the Executive so
elects under the terms of any deferred compensation or savings plan that may be
maintained or established by the Company; provided, any such deferral shall be
disregarded for purposes of all references to Base Salary hereunder.


 


(b)                                 Annual Incentive Bonus.  During the
Employment Period, the Executive will participate in the Company’s annual bonus
plan as in effect from time to time for the Company’s senior executives (the “Executive
Incentive Plan”) with a target annual incentive bonus of 100% of his Base
Salary (the “Target Annual Bonus”), with actual bonus payments determined
based on performance


 

















 


results versus the applicable targets
established by the Board or committee thereof under the Executive Incentive
Plan in consultation with the Executive. 
With respect to the calendar year 2006, the Executive shall receive an
annual bonus under the Executive Incentive Plan that is no less than his Target
Annual Bonus (and without pro ration for commencing employment after the start
of the year); provided that up to 50% of such bonus shall be reduced by
the amount of any bonus paid by the Executive’s prior employer with respect to
the calendar year 2006.


 


(c)                                  Equity Incentives.


 


(i)                                     Opportunity to
Purchase Shares.  On, or as soon as
practicable after, the Commencement Date, the Executive will purchase 1,056,338
shares of the Common Stock of the Company, par value $.01 per share (the “Common
Stock”), at a per share purchase price of $5.68 (the “Per Share Price”),
for a total purchase price of $6 million, pursuant to the Hertz Global
Holdings, Inc. Stock Incentive Plan (the “Stock Incentive Plan”).  In no event will the Company be required to
offer to sell or to sell any shares of Common Stock to the Executive at any
time at which making such an offer or selling any such shares would violate any
applicable securities law.  The terms and
conditions of the Executive’s purchase of any shares of Common Stock (including
certain restrictions on resale of the shares, the right of the Executive to
require the repurchase of all or a portion of such shares by the Company under
certain circumstances, the right of the Company to repurchase all or a portion
of such shares from the Executive upon termination of the Executive’s
employment and the applicable repurchase price) shall be set forth in a
separate Management Stock Subscription Agreement, substantially in the form
attached hereto as Exhibit A, to be entered into between the Company and
the Executive (the “Management Stock Subscription Agreement”).


 


(ii)                                  Stock Options.


 


(A)                              Matching Options.  Effective as of the closing of
the purchase of shares pursuant to Section 3(c)(i), the Company will grant
the Executive non-qualified stock options under the Stock Incentive Plan to
purchase 200,000 shares of Common Stock, representing twice the number of the
first 100,000 shares purchased by Executive pursuant to Section 3(c)(i) (the
“Matching Options”).  Subject to Section 3(c)(iv),
the exercise price per share of Common Stock covered by the Matching Options
will equal the Per Share Price.


 


(B)                                Supplemental Options.  Executive
will receive 500,000 non-qualified stock options to purchase shares of Common
Stock 


 

















 


effective as of the Commencement Date (the “Supplemental Options”).  Subject to Section 3(c)(iv), the
exercise price per share of Common Stock covered by the Supplemental Options
will equal the Per Share Price.


 


(C)                                Homerun Options.  Executive will receive 800,000
non-qualified stock options to purchase shares of Common Stock effective as of
the Commencement Date (the “Homerun Options”).  Subject to Section 3(c)(iv), the
exercise price per share of Common Stock covered by 400,000 of the Homerun
Options will be equal to $10.68 and the exercise price per share of Common
Stock covered by the remaining 400,000 of the Homerun Options will be $15.68.


 


(iii)                               Management Stock
Option Agreement; Plans. 
The terms and conditions of the Matching Options, the Supplemental
Options and the Homerun Options (collectively, the “Options”), including
those provided for in this Section 3(c)(ii) and the right of the
Company to repurchase all or a portion of the shares issued upon exercise of
vested Options from the Executive at a specified purchase price under certain
circumstances, will be set forth in one or more separate Management Stock
Option Agreements, substantially in the form attached hereto as Exhibit B,
to be entered into between the Executive and the Company at the time that such
Options are granted and will be subject to the terms and provisions of the
Stock Incentive Plan (the “Management Stock Option Agreement” and,
together with the Management Stock Subscription Agreement, the “Management
Equity Agreements”) and Management Stock Subscription Agreements.


 


(iv)                              Adjustment.  If, at any time prior to the sale of the
shares of Common Stock or the grant of the Options contemplated by this Section 3(c),
the Compensation Committee of the Board determines that the “Fair Market Value”
per share of Common Stock for purposes of the Stock Incentive Plan is higher
than $5.68 per share (such higher value, the “Redetermined Share Value”),
then:


 


(A)                              the purchase price per share for the sale of shares
contemplated by Section 3(c)(i) will not be adjusted but the Company
will pay the Executive by December 31, 2006 an amount equal to 80% of the
product of (1) the number of shares of Common Stock purchased
pursuant to such Section 3(c)(i) multiplied by (2) and
the difference between the Redetermined Share Value and $5.68 (the “Incremental
Share Value”);


 

















 


(B)                                the exercise price per share of the Options granted
pursuant to Section 3(c)(ii) shall equal the greater of (1) the
applicable price specified therein (i.e., $5.68, $10.68 and $15.68, as the case
may be) and (2) the Redetermined Share Value; and


 


(C)                                the Executive shall be granted an additional number
of Supplemental Options equal to the product of (1) the Incremental
Share Value and (2) 50,000.


 


(d)                                 Signing/Replacement Award.  In order to
address the certain forfeitures that Executive will face upon termination of
his employment with his prior employer, the Executive shall be paid a special
cash bonus of $2 million on December 31, 2006 and $2 million on December 31,
2007 (the “Replacement Award”); provided that if the Executive’s
employment terminates before an applicable payment date, the Replacement Award
shall be payable if and to the extent provided for in Section 5(f).


 


4.                                       Benefits; Perquisites, Etc.


 


(a)                                  Benefits.  During the Employment Period, all employee
and senior executive benefits (other than severance benefits), including life,
medical, dental and disability insurance, will be provided to the Executive in
accordance with the programs of the Company then available to its senior
executives, as the same may be amended and in effect from time to time.  During the Employment Period, subject to
generally applicable eligibility requirements, the Executive will also be
entitled to participate in all of the Company’s tax-qualified and non-qualified
profit sharing, pension, retirement, supplemental retirement (e.g., SERP,
Excess and Restoration plans), deferred compensation and savings plans then
available to its senior executives, as the same may be amended and in effect
from time to time, at levels and having interests commensurate with the
Executive’s then current period of service, compensation and position.  Notwithstanding the foregoing, the Executive
shall not participate in the Hertz Corporation Long-Term Compensation Plan,
under which the Company has ceased to make additional grants (and only
pre-existing awards remain outstanding).


 


(b)                                 Perquisites.  During the Employment Period, the
Executive will be entitled to participate in all perquisite programs generally
available from time to time to senior executives of the Company on the terms
and conditions then prevailing under such programs, a description of which has
been provided to the Executive.


 


(c)                                  Relocation.  The Company will directly pay or,
upon presentation of appropriate vouchers or other expense statements,
reimburse the Executive for all reasonable expenses incurred in connection with
relocation of his principal 


 

















 


residence from Illinois to the New York
metropolitan region (including brokerage fees in connection with sale of
Illinois house and mortgage points paid on a new mortgage).  The Company will also make available the
services of Prudential Relocation Services in connection with such
relocation.  For purposes of the
foregoing, “reasonable expenses” include, without limitation, all physical
packing and moving expenses of household goods and all vehicles, 180 days’
temporary housing, travel expenses for at least three house hunting trips for
Executive and his spouse.  The Company
will gross up the Executive, on an after-tax basis, to the extent that any
relocation benefits provided hereunder are taxable to him.


 


(d)                                 Business Expenses.  The Company will reimburse the
Executive for reasonable travel, lodging and meal expenses incurred by him in
connection with his performance of services hereunder upon submission of
information required to be provided under the Company’s policy for
reimbursement of business expenses.  The
Company will pay the Executive’s reasonable costs of legal counsel incurred in
connection with the negotiation and preparation of this Agreement and will
reimburse the Executive for up to 60 days’ interest costs under the
indebtedness the Executive incurs to exercise his vested stock options granted
by his prior employer.


 


(e)                                  Vacation.  The Executive will be entitled to four weeks’
paid vacation annually.


 


(f)                                    Security.  The Company shall from time to time engage
the services of a third-party security consultant to consider security matters
regarding the Executive and Executive’s travel, etc.


 


5.                                       Termination of Employment.


 


(a)                                  Termination Due to Death or Disability.  The
Executive’s employment with the Company shall terminate upon his death and the
Company may terminate the Executive’s employment as a result of the Executive’s
Disability (as defined below).  In the
event of either such termination of employment, the Executive shall only be
entitled to the payments and benefits provided for in Section 5(f)(i) and
Section 5(f)(ii).  For purposes of
this Agreement, “Disability” means that the Executive has become “disabled”
within the meaning of Section 409A(a)(2)(C) of the Code and Treasury
Regulation Section 1.409A-3(i)(4). 
The reasoned and good faith judgment of the Board as to the Executive’s
Disability will be final and will be based on such competent medical evidence
as shall be presented to it by the Executive or by any physician or group of
physicians or other competent medical experts employed by the Executive, or by
the Company and reasonably acceptable to the Executive, to advise the Board.


 


(b)                                 Termination by the Company for Cause.  The Company
may terminate the Executive’s employment for Cause.  In the event of such a termination of 


 

















 


employment, the Executive shall only be
entitled to the payments and benefits provided for in Section 5(f)(i).  “Cause” means (i) Executive’s
conviction of, or entering a plea of guilty or nolo   contendere to, a felony, (ii) Executive’s
engaging in conduct that constitutes willful gross neglect or willful gross
misconduct with respect to his employment duties which results in material economic
harm to the Company, (iii) Executive’s violation of the Company’s
Standard of Conduct or other material Company policy, or (iv) inaccuracy
of any representation or breach of covenant made by the Executive in connection
with securing employment hereunder; provided, the Company shall have delivered
to the Executive, a Notice of Termination that specifically identifies such
grounds for termination for Cause and, in the case of grounds pursuant to
clause (iii), the Executive shall have failed to cure such circumstance within
10 days of receipt of such notice.  A
termination of employment for “Cause” pursuant to this Section 5(b) shall
include a determination following the Executive’s termination of employment for
any reason that the circumstances existed prior to such termination for the
Company to have terminated the Executive’s employment for Cause.


 


(c)                                  Termination Without Cause.  The Company
may terminate the Executive’s employment hereunder Without Cause.  In the event of such a termination of employment,
the Executive shall only be entitled to the payments and benefits provided for
in Section 5(f)(i) and to the termination benefits described in Section 5(f)(iii) and,
if applicable, Section 14 (subject to the terms and conditions set forth
therein).  A termination “Without
Cause” means a termination of the Executive’s employment by the Company
other than as a result of Disability or Cause or in a Retirement (as defined in
Section 5(e)).


 


(d)                                 Termination by the Executive.  The
Executive may terminate his employment with or without Good Reason (as defined
below).  In the event of a termination by
the Executive of his employment for Good Reason, the Executive shall only be
entitled to the payments and benefits provided for in Section 5(f)(i) and
to the termination benefits described in Section 5(f)(iii) and, if
applicable, Section 14 (subject to the terms and conditions set forth
therein).  In the event of a termination
by the Executive of his employment without Good Reason, the Executive shall
only be entitled to the payments and benefits provided for in Section 5(f)(i).  “Good Reason” means a termination of
employment by the Executive following, without the Executive’s consent, (i) reduction
by the Company of Executive’s Base Salary or Target Annual Bonus, (ii) failure
by the Company to elect or to reelect the Executive as a Director, (iii) a
material diminution in the Executive’s duties or responsibilities or the
assignment to him of any duties or responsibilities inconsistent with the
Executive’s position and status as Chief Executive Officer, (iv) a
change in the Executive’s reporting relationship such that he no longer reports
directly to the Board, (v) requiring the Executive to relocate his 


 

















 


principal place of employment more than 30
miles from the Company’s Park Ridge, New Jersey offices, (vi) failure
of the Company to obtain a satisfactory agreement from any successor to all or
substantially all of the assets or business of the Company to assume and agree
to perform this Agreement within 15 days after a merger, consolidation, sale or
similar transaction, (vii) any purported termination by the Company
of the Executive’s employment otherwise than as expressly permitted by this
Agreement, or (viii) failure to elect Executive as Chairman of the
Board by January 1, 2007 or, if the initial public offering of the Common
Stock is delayed due to market conditions, the failure to be elected Chairman
of the Board by March 31, 2007; in each case provided that, within 30 days
of any such occurrence, the Executive shall have delivered to the Board and the
Company a Notice of Termination that specifically identifies such occurrence
and the Company shall have failed to cure such circumstance within 10 days of
receipt of such notice.


 


(e)                                  Retirement.  Unless otherwise agreed to by the
Executive and the Company, the Executive’s employment hereunder shall terminate
as of the first day of the month coincident with or next following the
Executive’s 65th birthday (“Retirement”).  In the event of such termination of employment,
the Executive shall only be entitled to the payments and benefits provided for
in Section 5(f)(i) and Section 5(f)(ii).


 


(f)                                    Payments Upon Terminations.


 


(i)                                     All Terminations.  Following any termination of the Executive’s
employment hereunder (by the Executive or by the Company), the Company will pay
the Executive (A) his full Base Salary through the Date of
Termination only and (B) except in the case of a termination for
Cause, earned but unpaid annual bonus for the year preceding the year in which
the Date of Termination occurs and accrued but unpaid annual vacation.  The Executive shall also retain all of his
rights to benefits provided for under the terms of the employee and executive
benefit plans of the Company in which the Executive is a participant in
accordance with and subject to the terms of such plans as in effect from time
to time, as well as the Stock Incentive Plan and the Management Equity
Agreements.  The payments and benefits
provided hereunder shall be in lieu of any payments or benefits to which the
Executive may be entitled under the terms of any severance plan or program of
the Company, if any, as in effect on the Date of Termination.


 


(ii)                                  Death, Disability
or Retirement.  In the case of
termination upon the Executive’s death, Disability or Retirement, the Executive
(or his estate or beneficiary) shall be entitled to prompt payment of the
Retention Award (to the extent not previously paid) and a payment of the annual
bonus 


 

















 


that would have
been payable under the Executive Incentive Plan for the calendar year that
includes the Date of Termination (and for which any subjective performance
goals will be deemed satisfied at target), except that such bonus shall be pro
rated based on the portion of such year that includes the Employment Period and
shall be payable when such bonuses are otherwise paid to the Company’s senior
executives (the “Pro Rata Bonus”).


 


(iii)                               Without Cause/For
Good Reason.  In the event of a
termination of the Executive’s employment by the Company Without Cause or a
termination by the Executive of his employment for Good Reason, subject to
entering into a release of claims in the form customarily used by the Company
for such purpose (the “Release”) and Section 5, (A) the
Company will pay to the Executive in a single lump sum an amount equal to 2.5
times the sum of (1) the Executive’s then-current Base Salary and (2) the
Executive’s annual bonus under the Executive Incentive Plan for the year
preceding the year of such termination (or in the case of a termination in 2006
or 2007, the Executive’s Target Annual Bonus for such year), (B) the
Company will pay to the Executive the Pro Rata Bonus and the Retention Award
(to the extent not previously paid), and (C) for two years
following the Date of Termination, the Executive and his eligible family
members shall be entitled to continue to receive benefits under (or benefits
comparable to) the Company’s medical, dental and disability insurance programs,
except to the extent the Executive has available to him substantially similar
programs with a subsequent employer. 
Subject to Section 16(k), the payment provided for in clause (A) of
this Section 5(f)(iii) and of the Retention Award shall be made on
the 30th day following the Date of Termination so long as, prior to such payment
date, the Release has been executed and has become irrevocable, and the payment
of the Pro Rata Bonus shall be paid when such bonuses are otherwise paid to the
Company’s senior executives.


 


(g)                                 Date of Termination.  As used in
this Agreement, the term “Date of Termination” means (i) if
the Executive’s employment is terminated by his death, the date of his death, (ii) if
the Executive’s employment is terminated by the Company for Cause, the date
specified in the Notice of Termination, (iii) if the Executive
terminates his employment without Good Reason, the date specified in the Notice
of Termination (which shall be no less then 30 days following the date of
delivery of such Notice, or such earlier date as the Company choose at any time
after receipt of such Notice), (iv) if the Executive’s employment
terminates upon his Retirement, the date provided for in Section 5(e), and
(v) if the Executive’s employment is terminated by the Company
Without Cause, as a result of the Executive’s Disability or by the Executive
for Good Reason, the date specified in the Notice of Termination (which shall
be no less than 20 and no more than 40 days following the date of delivery of
such notice).


 

















 


(h)                                 Notice of Termination.  Any
termination by the Company pursuant to Section 5(a), 5(b) or 5(c), or
by Executive pursuant to Section 5(d), shall be communicated by a written
“Notice of Termination” addressed to the other party or parties to this
Agreement.  A “Notice of Termination”
shall mean a notice stating that the Executive’s employment hereunder has been
or will be terminated, indicating the specific termination provisions in this
Agreement relied upon and setting forth in reasonable detail the facts and
circumstances claimed to provide a basis for such termination of employment.  In the event of a Notice of Termination
delivered by the Company pursuant to Section 5(c) or the Executive
pursuant to Section 5(d), if the recipient of the Notice of Termination
cures the circumstances giving rise to such notice within the time period
provided for in Section 5(c) or Section 5(d), as the case may
be, the party delivering such notice may rescind the Notice of Termination and,
in the absence of such rescission, such notice shall be deemed a Notice of
Termination by the Company without Cause, or by the Executive without Good
Reason, as the case may be.


 


(i)                                     Resignation from Board Memberships.  Effective
as of any Date of Termination under Section 5 or otherwise as of the date
of the Executive’s termination of employment, the Executive shall (unless
otherwise requested by the Board) resign, in writing, from membership on the
Board and the board of directors of any subsidiary of the Company.


 


(j)                                     No Obligation to Mitigate Damages; No Offset.  The
Executive shall not be required to mitigate damages or the amount of any
payment provided for under this Agreement by seeking other employment or
otherwise.  No amounts paid to or earned
by Executive following his termination of employment with the Company shall
reduce or be set off against any amounts payable to Executive under this
Agreement.


 


6.                                       Unauthorized
Disclosure.  During and following
termination of his employment with the Company for any reason, except to the
extent required by an order of a court having apparent jurisdiction or under
subpoena from an appropriate government agency, in which event, the Executive
shall use his best efforts to consult with the Board prior to responding to any
such order or subpoena, and except in connection with the performance of his
duties hereunder, the Executive shall not, without the written consent of the
Board or a person authorized thereby, disclose to any person (other than an
executive or director of the Company or any of its subsidiaries or affiliates,
or a person to whom disclosure is reasonably necessary or appropriate in
connection with the performance by the Executive of his duties as an executive
of the Company) any confidential or proprietary information, knowledge or data
that is not theretofore publicly known and in the public domain obtained by him
while in the employ of the Company with respect to the Company or any of its
subsidiaries or affiliates or with respect to any products, improvements, 


 














 


customers, methods of distribution, sales, prices, profits,
costs, contracts, suppliers, business prospects, business methods, techniques,
research, trade secrets or know-how of the Company or any of its subsidiaries
or affiliates (collectively, “Proprietary Information”), except for (i)
publicly available information (provided such information became publicly
available other than as a result of a breach of this confidentiality clause) or
(ii) disclosure to the Executive’s legal counsel to the extent such legal
counsel needs to know the information to protect the Executive’s legal rights, provided
that such counsel shall maintain the confidentiality of such information and
shall be bound by this Section 6 to the same extent as the Executive.  The Executive shall be fully responsible for
any disclosure by such counsel.


 


7.                                       Non-Competition. 
During the period of the Executive’s employment with the Company or any
of its subsidiaries or affiliates and, as a condition to receiving severance
pay, thereafter during the two year period following any termination of the
Executive’s employment (the “Restriction Period”), the Executive shall
not engage directly or indirectly in, become employed by, serve as an agent or
consultant to, or become a partner, principal or stockholder of any
partnership, corporation or other entity which competes with the car or
equipment rental business of the Company or any of its subsidiaries in any
county within the United States or any comparable geographical area outside the
United States in which the Company or any of its subsidiaries is then engaged
in such business; provided that the Executive’s ownership of less than
1% of the outstanding voting shares of any publicly held company which
otherwise would be prohibited under this Section 7 shall not constitute
competition with the Company.


 


8.                                       Non-Solicitation of Employees.  During the period of the Executive’s
employment and, as a condition to receiving severance pay, thereafter during
the Restriction Period, the Executive shall not, directly or indirectly, for
his own account or for the account of any other person or entity with which he
is or becomes associated in any capacity, (a) solicit for employment or
otherwise interfere with the relationship of the Company or any of its
subsidiaries or affiliates with any person who at any time within the six
months preceding such solicitation, employment or interference is or was
employed in a managerial or other senior capacity by or otherwise so engaged to
perform services for the Company or any of its subsidiaries or affiliates,
other than any such solicitation or employment on behalf of or for the benefit
of the Company during the Executive’s employment with the Company, or (b)
induce any employee of the Company or any of its subsidiaries or affiliates who
is a member of management to engage in any activity which the Executive is
prohibited from engaging in under any of Sections 6, 7, 8 or 9 hereof or to
terminate his employment with the Company.


 

















 


9.                                       Non-Solicitation of Clients.  During the period of the Executive’s
employment and, as a condition to receiving severance pay, thereafter during
the  Restriction Period, the Executive
shall not, directly or indirectly, solicit or otherwise attempt to establish
for himself or any other person, firm or entity any business relationship,
respecting any business that is one of the businesses conducted by the Company,
with any person, firm or entity which, at any time during the twelve-month
period preceding the date of the Executive’s termination of employment, was a
significant customer, client or distributor of the Company (in each case,
excluding any retail customer or client) or any of its subsidiaries, except
during the Executive’s employment with and on behalf of the Company.


 


10.                                 Return of Documents and Company Property.  In the event of the termination of the
Executive’s employment for any reason, the Executive will promptly deliver to
the Company all non-personal documents and data of any nature and in whatever
medium pertaining to the Executive’s employment with the Company, or any of its
subsidiaries or affiliates, (for which purpose, the Executive’s rolodex or
other address book shall be considered personal) or any other property of the
Company or any of its subsidiaries or affiliates and he will not take with him
any such property, documents or data of any description or any reproduction
thereof, or any documents containing or pertaining to any Proprietary
Information.


 


11.                                 Enforcement of Covenants.


 


(a)                                  Injunctive Relief.  Executive acknowledges and agrees that the
covenants, obligations and agreements of the Executive contained in Sections 6,
7, 8, 9 and 10 relate to special, unique and extraordinary matters and that a
violation of any of the terms of such covenants, obligations or agreements will
cause the Company irreparable injury for which adequate remedies are not
available at law.  Therefore, the
Executive agrees that the Company will be entitled to an injunction,
restraining order or such other equitable relief (without the requirement to
post bond) as a court of competent jurisdiction may deem necessary or
appropriate to restrain the Executive from committing any violation of the
covenants, obligations or agreements referred to in this Section 11(a).  These injunctive remedies are cumulative and
in addition to any other rights and remedies the Company may have.  The Company and the Executive hereby
irrevocably submit to the exclusive jurisdiction of the courts of the State of
the city of the Company’s headquarters and the Federal courts of the United
States of America, in each case located in (or located nearest to) the city of
the Company’s headquarters, solely in respect of the injunctive remedies set
forth in this Section 11(a) and the interpretation and enforcement of Sections 6,
7, 8, 9, 10 and 11 solely insofar as such interpretation and enforcement relate
to an application for injunctive relief in accordance with the provisions of
this Section 11(a), and the parties hereto hereby irrevocably agree that 


 

















 


(i) the sole
and exclusive appropriate venue for any suit or proceeding relating solely to
such injunctive relief shall be in such a court, (ii) all claims with
respect to any application solely for such injunctive relief shall be heard and
determined exclusively in such a court, (iii) any such court shall have
exclusive jurisdiction over the person of such parties and over the subject
matter of any dispute relating to an application solely for such injunctive
relief, and (iv) each hereby waives any and all objections and defenses
based on forum, venue or personal or subject matter jurisdiction as they may
relate to an application solely for such injunctive relief in a suit or
proceeding brought before such a court in accordance with the provisions of
this Section 11(a).


 


(b)                                 Forfeiture of Payments.  Executive agrees that receipt of severance
pay under Section 5(f) is conditioned upon Executive’s observance of Sections
6, 7, 8 and 9.  Executive further agrees
that in the event of his failure to observe the provisions of Sections 6, 7, 8
or 9, (i) Executive shall forfeit the right to receive any portion of
his bonus (ii) the Company shall be entitled to discontinue further
severance payments under Section 5(f) and (iii) the Company shall be
entitled to recover from the Executive any payments made to the Executive under
Section 5(f).  The foregoing shall be in
addition to any other remedies or rights the Company may have at law or at
equity as a result of the Executive’s failure to observe such provisions.


 


(c)                                  Certain Acknowledgments.  The Executive acknowledges and agrees that (i)
the Executive has had and will have a prominent role in the management of the
business, and the development of the goodwill, of the Company and its
subsidiaries and will establish and develop relations and contacts with the
principal customers and suppliers of the Company and its subsidiaries in the
United States of America and the rest of the world, all of which constitute
valuable goodwill of, and could be used by the Executive to compete unfairly
with, the Company and its subsidiaries, (ii) in the course of his
employment with the Company, the Executive will obtain confidential and
proprietary information and trade secrets concerning the business and
operations of the Company and its subsidiaries and affiliates in the United
States of America and the rest of the world that could be used to compete
unfairly with the Company and its subsidiaries, (iii) the covenants and
restrictions contained in this Agreement are intended to protect the legitimate
interests of the Company and its affiliates in their respective goodwill, trade
secrets and other confidential and proprietary information, (iv) the
Executive desires to be bound by such covenants and restrictions, (v) such
covenants are a material inducement for the Company to enter into this
Agreement, and (vi) his economic means and circumstances are such that
the provisions of this Agreement, including the restrictive covenants in this
Agreement, will not prevent him from providing for himself and his family on a
basis satisfactory to him and them.


 

















 


(d)                                 Blue Pencil. 
It is the desire of the parties to this Agreement that the provisions of
Sections 6 through 11, in particular, be interpreted and enforced to the
greatest extent possible (and consistent with Section 16(e)).


 


12.                                 Assumption of Agreement.  The Company will require any successor (by
purchase, merger, consolidation or otherwise) to all or substantially all of
the business and/or assets of the Company, by agreement in form and substance
reasonably satisfactory to the Executive, to expressly assume and agree to
perform the obligations of the Company under this Agreement in the same manner
and to the same extent that the Company would be required to perform if no such
succession had taken place.


 


13.                                 Indemnification. 
The Company agrees that it shall indemnify and hold harmless the
Executive to the fullest extent permitted by Delaware law from and against any
and all liabilities, costs, claims and expenses including without limitation
all costs and expenses incurred in defense of litigation, including attorneys’
fees, arising out of the employment of the Executive hereunder, except to the
extent arising out of or based upon the gross negligence or willful misconduct
of the Executive.  Costs and expenses
incurred by the Executive in defense of any such litigation, including
attorneys’ fees, shall be paid by the Company in advance of the final
disposition of such litigation promptly upon receipt by the Company of (i)
a written request for payment, (ii) appropriate documentation evidencing
the incurrence, amount and nature of the costs and expenses for which payment
is being sought, and (iii) an undertaking adequate under Delaware law
made by or on behalf of Executive to repay the amounts so paid if it shall
ultimately be determined that Executive is not entitled to be indemnified by
the Company under this Agreement.  The
Company will insure the Executive, for the duration of his employment and
service as a member of the Board, and thereafter, in respect of his acts and
omission occurring during such employment and Board membership, under a
contract of directors and officers liability insurance to the same extent as
such insurance insures members of the Board.


 


14.                                 Excise Tax.


 


(a)                                  If, the Executive would receive any payment, deemed payment or other
benefit pursuant to this Agreement, together with any other payment, deemed
payment or other benefit the Executive may receive under any other plan,
program, policy or arrangement, would constitute an “excess parachute payment”
under Section 280G of the Code (an “Excess Parachute Payment”), and
would result in the imposition on the Executive of an excise tax under Section 4999
of the Code or similar provision of state or local law, then, in addition to
any other benefits to which the Executive is entitled under this Agreement, the
Executive shall be paid by the Company the excise taxes payable by the
Executive by reason of receiving the 


 

















 


Excess Parachute Payment
and the amount necessary to put the Executive in the same after-tax position
(including, without limitation, income, employment and excise taxes) and any
interest and penalties thereof, as if no excise taxes under Section 4999 of the
Code had been imposed with respect to the Excess Parachute Payment (together,
the “Gross-Up Amount”).


 


(b)                                 Whether and when a payment or benefit results in the imposition of an
excise tax and the Gross-Up Amount, if any, under this Section 14 shall be
determined by a nationally-recognized certified public accounting firm
designated by the Company and reasonably acceptable to the Executive (the “Designated
Accountants”).  All fees and expenses
of such accounting firm shall be paid by the Company.  The Company and the Executive shall provide
to the Designated Accountants such information as the Designated Accountants
shall reasonably request in connection with their determinations under this Section
14.  The Executive shall file his tax
returns in consistent with the determinations of the Designated Accountants
under this Section 14.  If the Designated
Accountants determine that no excise tax is payable by the Executive, they
shall furnish the Executive a written opinion that failure to report the excise
tax on the Executive’s applicable federal income tax return would not result in
the imposition of a negligence or similar penalty.


 


(c)                                  The Company shall pay the Executive the Gross-Up Amount at such time (or
times) as the Designated Accountants determine that the tax payment to which
such amount relates is due and payable to the applicable taxing authority
(taking into account any applicable extensions).


 


(d)                                 The Executive shall notify the Company in writing of any claim by the
Internal Revenue Service that, if successful, would require the payment by the
Company of a Gross-Up Amount in addition to that previously paid by the Company
pursuant to this Section 14.  Such
notification shall be given as soon as practicable but no later than 10
business days after the Executive is informed in writing of such claim and
shall apprise the Company of the nature of such claim and the date on which
such claim is requested to be paid.  The
Executive shall not pay such claim prior to the expiration of the 30-day period
following the date on which the Executive gives such notice to the Company (or
such shorter period ending on the date that any payment of taxes with respect
to such claim is due after taking into account any available extensions).  If the Company notifies the Executive in
writing prior to the expiration of such period that it desires to contest such
claim, the Executive shall: (i) give the Company any information
reasonably requested by it relating to such claim; (ii) take such action
in connection with contesting such claim as the Company shall reasonably
request in writing from time to time, including without limitation accepting
legal representation with respect so such claim by an attorney reasonably
selected by the Company; (iii) cooperate with the Company in 


 

















 


good faith in order to
effectively contest such claim; and (iv) permit the Company to
participate in any proceedings relating to such claim.  The Company shall pay all direct costs and
expenses (including any additional interest and penalties) incurred in
connection with any contest pursuant to this Section 14.


 


(e)                                  If the amount of any payments made pursuant to this Section 14 exceeds the
amount subsequently and finally determined to have been due, the excess amounts
made shall be payable promptly, and in any event within 30 days, after receipt
by the Executive of the refund from the Internal Revenue Service or other
taxing authority together with any interest received thereon.


 


(f)                                    Subject to any earlier time limits set forth in this Section 14, all
payments and reimbursements to which the Executive is entitled under this Section
14 shall be paid to or on behalf of the Executive not later than the end of the
taxable year of the Executive next following the taxable year of the Executive
in which the Executive (or the Company, on the Executive’s behalf) remits the
related taxes (or, in the event of an audit or litigation with respect to such
tax liability hereunder, not later than the end of the taxable year of the
Executive next following the taxable year of the Executive in which there is a
final resolution of such audit or litigation (whether by reason of completion
of the audit, entry of a final and non-appealable judgment, final settlement,
or otherwise)).


 


15.                                 Entire Agreement.  Except as otherwise expressly provided or
referred to herein, this Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof, and all promises,
representations, understandings, arrangements and prior agreements relating to
such subject matter (including those made to or with the Executive by any other
person or entity) are merged herein and superseded in their entirety
hereby.  In the event of any
inconsistency between the terms of this Agreement (or Exhibit hereto) and any
plan, program, practice or other agreement of the Company of which the
Executive is a participant or a party, this Agreement (and Exhibits hereto)
will control unless the Executive and the Company otherwise agree in writing.


 


16.                                 Miscellaneous.


 


(a)                                  Binding Effect. 
This Agreement shall be binding on and inure to the benefit of the
Company and its successors and permitted assigns.  This Agreement shall also be binding on and
inure to the benefit of the Executive and his heirs, executors, administrators
and legal representatives.  If the
Executive dies before all amounts payable to him hereunder have been paid, the
unpaid amounts will be paid to his beneficiary designated by the Executive or,
if none (or otherwise not permitted), to his estate.


 














 


(b)                                 Governing Law, Waiver of Jury Trial.


 


(i)                                     Governing Law;
Consent to Jurisdiction.  This
Agreement shall be governed in all respects, including as to validity,
interpretation and effect, by the internal laws of the State of New Jersey
without giving effect to the conflict of laws rules thereof to the extent that
the application of the law of another
jurisdiction would be required thereby, except that the validity,
interpretation and effect of Section 13 (Indemnification) shall be
governed by the laws of the State of Delaware. 
Each party hereby irrevocably submits to the exclusive jurisdiction of
the courts of the State of the city of the Company’s headquarters and the
Federal courts of the United States of America, in each case located in (or
located nearest to) the City of the Company’s headquarters, solely in respect
of the interpretation and enforcement of the provisions of this Agreement and
of the documents referred to in this Agreement, and in respect of the
transactions contemplated hereby and thereby. 
Each party hereby waives and agrees not to assert, as a defense in any
action, suit or proceeding for the interpretation and enforcement hereof, or
any such document or in respect of any such transaction, that such action, suit
or proceeding may not be brought or is not maintainable in such courts or that
the venue thereof may not be appropriate or that this agreement or any such
document may not be enforced in or by such courts.  Each party hereby consents to and grants any
such court jurisdiction over the person of such parties and over the subject
matter of any such dispute and agree that the mailing of process or other
papers in connection with any such action or proceeding in the manner provided
in Section 16(f) or in such other manner as may be permitted by law,
shall be valid and sufficient service thereof. 
In the event of any dispute between the Company and the Executive
(including, but not limited to, under or with respect to this Agreement or the
Management Equity Agreements), the Company will advance to the Executive all
attorneys fees and other litigation costs incurred by the Executive in
connection with such dispute; provided, Executive shall be obligated to refund
to the Company all such advances unless he prevails on at least one material
claim or issue asserted in such dispute.


 


(ii)                                  Waiver of Jury Trial.  EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH PARTY HEREBY IRREVOCABLY
AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY
JURY IN RESPECT OR ANY LITIGATION ARISING OUT OF OR RELATING TO THIS AGREEMENT,
OR THE BREACH, TERMINATION OR VALIDITY OF THIS AGREEMENT.  Each party certifies and acknowledges that (A) no
representative, agent or attorney of 


 

















 


any other
party has represented, expressly or otherwise, that such other party would not,
in the event of litigation, seek to enforce the foregoing waiver, (B) each
such party understands and has considered the implications of this waiver, (C) each
such party makes this waiver voluntarily, and (D) each such party
has been induced to enter into this agreement by, among other things, the
mutual waivers and certifications in this Section 16(b)(ii).


 


(c)                                  Taxes.  The Company may withhold from any payments
made under the Agreement all federal, state, city or other applicable taxes as
shall be required pursuant to any law, governmental regulation or ruling.


 


(d)                                 Amendments.   No provisions of this Agreement may be
modified, waived or discharged unless such modification, waiver or discharge is
approved by the Board or a person authorized thereby and is agreed to in
writing by the Executive and such officer as may be specifically directed by
the Board.  No waiver by any party hereto
at any time of any breach by any other party hereto of, 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. 
No waiver of any provision of this Agreement shall be implied from any
course of dealing between or among the parties hereto or from any failure by
any party hereto to assert its rights hereunder on any occasion or series of
occasions.


 


(e)                                  Severability.  It is the desire of the parties that the
provisions of this Agreement shall be enforced to the fullest extent
permissible under applicable law.  In the
event that any one or more of the provisions of this Agreement shall be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein shall not be
affected thereby.  In the event that any
of Sections 6, 7, 8, 9, 10 or 11 is invalid, illegal or unenforceable in
accordance with its terms, the Executive and the Company agree that such
provisions shall be reformed to make such sections enforceable, in a manner
which provides the Company with the maximum rights permitted at law.


 


(f)                                    Notices.  Any notice or other communication required or
permitted to be delivered under this Agreement shall be (i) in
writing, (ii) delivered personally, by courier service or by
certified or registered mail, first-class postage prepaid and return receipt requested,
(iii) deemed to have been received on the date of delivery or on
the third business day after the mailing thereof, and (iv) addressed
as follows (or to such other address as the party entitled to notice shall
hereafter designate in accordance with the terms hereof):


 


(A)                              if to the Company, to it
at:


255 Brae Boulevard


 

















 


	
   

  	
  Park Ridge, New Jersey 07656-0713

  Attention:  General Counsel

  Fax:  (201)
  594-3122

  
	
   

  	
   

  
	
   

  	
  (B)

  	
  if to
  Executive, to him at his last known home address as shown on the records of
  the 

  
	
  Company.

  
	
   

  
	
  Copies
  of any notices or other communications given under this Agreement shall also
  be given to:

  
	
   

  
	
   

  	
  (C)

  	
  if
  notice is given to the Company:

  
	
   

  	
  The Carlyle Group

  
	
   

  	
  1001 Pennsylvania Avenue, NW

  
	
   

  	
  Suite 220 South

  
	
   

  	
  Washington DC 20004-2505

  
	
   

  	
  Attention: Mr. Gregory S. Ledford

  
	
   

  	
  Fax:  (202) 347-1818

  
	
   

  	
   

  	
   

  
	
   

  	
  and

  
	
   

  	
   

  	
   

  
	
   

  	
  Clayton, Dubilier & Rice, Inc.

  
	
   

  	
  375 Park Avenue, 18th Floor

  
	
   

  	
  New York, New York

  
	
   

  	
  Attention: Mr. David Wasserman

  
	
   

  	
  Fax:  (212) 407-5252

  
	
   

  	
   

  	
   

  
	
   

  	
  and

  
	
   

  	
   

  	
   

  
	
   

  	
  Merrill Lynch Global Private Equity

  
	
   

  	
  4 World Financial Center, 23rd Floor

  
	
   

  	
  New York, NY 10080

  
	
   

  	
  Attention: Mr. George A. Bitar &

  
	
   

  	
                                                           Mr. Robert F. End

  
	
   

  	
  Fax:  (212) 449-1119

  
	
   

  	
   

  	
   

  
	
   

  	
  and

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  Debevoise & Plimpton LLP

  
	
   

  	
  919 Third Avenue

  
	
   

  	
  New York, New York 10022

  
	
   

  	
  Attention: John M. Allen, Jr., Esq.

  
	
   

  	
  Fax:  (212) 909-6836

  
	
   

  	
   

  	
   

  
	
   

  	
  (D)

  	
  if notice is given to the Executive:

  
	
   

  	
  Vedder, Price, Kaufman & Kammholz, P.C.

  
					



 

















 


	
   

  	
  222 N. LaSalle Street

  
	
   

  	
  Suite 2600

  
	
   

  	
  Chicago, Illinois 60601

  
	
   

  	
  Attention: Robert J. Stucker, Esq.

  
	
   

  	
  Fax:  (312) 609-5005

  



 


(g)                                 Survival.  Sections 6 through and including 16 and,
if Executive’s employment terminates in a manner giving rise to a payment under
Section 5(f), Section 5(f), shall survive the termination of the
employment of Executive hereunder.


 


(h)                                 Counterparts.  This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which
together shall constitute one and the same instrument.


 


(i)                                     Headings.  The section and other headings contained in
this Agreement are for the convenience of the parties only and are not intended
to be a part hereof or to affect the meaning or interpretation hereof.


 


(j)                                     Assignment.  Neither party may assign this Agreement
without the consent of the other party except as provided herein except that
the Company may assign this Agreement if it complies with Section 12.


 


(k)                                  Section 409A of the
Code.


 


(i)                                     With respect to any payments or benefits of deferred compensation subject
to Section 409A of the Code, reference to the Executive’s “termination of
employment” (and corollary terms) with the Company shall be construed to refer
to the Executive’s “separation from service” (as determined under Treasury
Regulation Section 1.409A-1(h), as uniformly applied by the Company) with
the Company.  Notwithstanding any provision
to the contrary in this Agreement, if the Executive is deemed on the date of
his “separation from service” (within the meaning of Treasury Regulation Section 1.409A-1(h))
to be a “specified employee” (within the meaning of Treas. Reg. Section 1.409A-1(i),
then with regard to any payment that is required to be delayed pursuant to Section 409A(a)(2)(B) of
the Code, such payment shall be made on the first to occur of (i) the
expiration of the six (6) month period measured from the date of his “separation
from service” and (ii) the date of his death (the “Delay Period”).  Upon the expiration of the Delay Period, all
payments and benefits delayed pursuant to this Section 16(k) (whether
they would have otherwise been payable in a single sum or in installments in
the absence of such delay) shall be paid or reimbursed to the Executive in a
lump sum with interest at the prime rate as published in The 


 

















 


Wall Street Journal on the first business day of the Delay Period, and any remaining payments
and benefits due under this Agreement shall be paid or provided in accordance
with the normal payment dates specified for them herein.


 


(ii)                                  To the extent that
any reimbursement, fringe benefit or other, similar plan or arrangement in
which the Executive participates during the term of the Executive’s employment
under this Agreement or thereafter provides for a “deferral of compensation”
within the meaning of Section 409A of the Code, (i) the right to
reimbursement or in-kind benefits shall not be subject to liquidation or
exchange for another benefit, (ii) the amount eligible for reimbursement
or payment under such plan or arrangement in one calendar year may not affect the amount eligible for reimbursement or payment in
any other calendar year (except that a plan providing medical or health benefits
may impose a generally applicable limit on the amount that may be reimbursed or
paid), and (iii) subject to any shorter time periods provided in any
expense reimbursement policy of the Company, any reimbursement or payment of an
expense under such plan or arrangement must be made on or before the last day
of the calendar year following the calendar year in which the expense was incurred.


 


(iii)                               Whenever a provision under this Agreement specifies a payment period with
reference to a number of days, the actual date of payment within the specified
period shall be within the sole discretion of the Company.


 


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left blank


 





















 


IN WITNESS WHEREOF, the Company has duly executed this
Agreement by its authorized representative and the Executive has hereunto set
his hand, in each case effective as of the date hereof.


 


	
   

  	
  HERTZ GLOBAL HOLDINGS, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/Jeffrey Zimmerman

  
	
   

  	
   

  	
  Name: 

  	
  Jeffrey Zimmerman

  
	
   

  	
   

  	
  Title: 

  	
  Senior Vice President and General Counsel

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/Mark P. Frissora

  
	
   

  	
   

  	
  Name: Mark P. Frissora