Exhibit
10.4


 


SECOND AMENDED AND
RESTATED


EMPLOYMENT AGREEMENT


 


This Employment Agreement (the “Agreement”), first
dated as of January 12, 2000, and amended and restated as of March 1, 2000, is
hereby further amended and restated as of February 14, 2003, by and between
Cendant Corporation, a Delaware corporation (“Cendant”) and Thomas D. Christopoul
(the “Executive”).


 


WHEREAS, Cendant desires to employ the Executive as
Senior Executive Vice President and Chief Administrative Officer of Cendant and
the Executive desires to serve Cendant in such capacity.


 


NOW THEREFORE, in consideration of the foregoing and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereby agree as follows:


 


SECTION I


EMPLOYMENT


 


Cendant agrees to employ the Executive and the
Executive agrees to be employed by Cendant for the Period of Employment as
provided in Section III below and upon the terms and conditions provided in
this Agreement.


 


SECTION II


POSITION AND RESPONSIBILITIES


 


During the Period of Employment, the Executive will
serve as Senior Executive Vice President and Chief Administrative Officer of
Cendant, and subject to the direction of the Chief Executive Officer of Cendant
(the “CEO”), will perform such duties and exercise such supervision with regard
to the business of Cendant as are associated with such position, as well as
such additional duties as may be prescribed from time to time by the CEO.  Such duties include the oversight,
coordination, administration and management of the following of Cendant’s
corporate service areas and business units: Human Resources, Facilities,
Telecommunications, Telephone Call Centers and Information Technology.  The Executive will, during the Period of
Employment, devote substantially all of his time and attention during normal
business hours to the performance of services for Cendant.  The Executive will maintain a primary office
and conduct his business in Parsippany,


 

















 


New Jersey, except for normal and reasonable business travel in
connection with his duties hereunder.


 


SECTION III


PERIOD OF EMPLOYMENT


 


The period of the Executive’s employment under this
Agreement (the “Period of Employment”) will begin on February 14, 2003 and end
on February 14, 2006, subject to earlier termination as provided in this
Agreement.


 


SECTION IV


COMPENSATION AND BENEFITS


 


A.                                   
Compensation.


 


For all services rendered by the Executive pursuant to
this Agreement during the Period of Employment, including services as an
executive, officer, director or committee member of Cendant or any of their
respective subsidiaries or affiliates, the Executive will be compensated as
follows:


 


i.                                        Base
Salary.


 


Cendant will pay the Executive a fixed base salary
(“Base Salary”) of not less than $650,000, per annum. The Executive will be
eligible to receive annual increases as the Board of Directors of Cendant (the
“Board”) deems appropriate, in accordance with Cendant’s customary procedures
regarding the salaries of senior officers, but with due consideration given to
the published Consumer Price Index applicable to the New York/New Jersey
greater metropolitan area.  Base Salary
will be payable according to the customary payroll practices of Cendant, but in
no event less frequently than once each month.


 


ii.                                       Annual
Incentive Awards


 


The Executive will be eligible for discretionary
annual incentive compensation awards; provided, that the Executive will
be eligible to receive an annual bonus opportunity in respect of each fiscal
year of Cendant during the Period of Employment based upon a target bonus of
not less than 100% of Base Salary, subject to the attainment by Cendant of
applicable performance targets established and certified by the Compensation
Committee of the Board (the “Committee”). 
The parties acknowledge that it is currently contemplated that such
performance targets will be stated in terms of “earnings before interest and
taxes” of Cendant; however, such targets may relate to such other
financial and business criteria of Cendant, or any of


 


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its subsidiaries or business units, as determined by the Committee in
its sole discretion (each such annual bonus, an “Incentive Compensation
Award”).


 


iii.                                    Long-Term
Incentive Awards


 


The Executive will be eligible for stock option awards
subject to the sole discretion of the Committee; provided, however,
that such options shall be granted in accordance with the terms and conditions
of the applicable option plans of Cendant and shall have such other terms and
conditions as determined by the Committee in its sole discretion.


 


iv.                                   Additional
Benefits


 


The Executive will be entitled to participate in all
other compensation and employee benefit plans or programs, and receive all
benefits and perquisites, for which salaried employees of Cendant are generally
eligible under any plan or program now in effect, or later established by
Cendant, on the same basis as similarly situated senior officers or Senior
Executive Vice Presidents of Cendant with comparable duties and responsibilities.  Without limiting the generality of the
foregoing, the Executive shall remain eligible to participate in the Cendant
Deferred Compensation Plan and shall be entitled to supplemental executive
medical benefits, tax and financial planning services, Park Avenue Club
membership, one automobile under any Cendant officer automobile program, Fiddler’s
Elbow Cendant Corporate Golf Membership, and air transportation benefits; provided,
however, that all such benefits and perquisites referenced in this paragraph
will be provided to the Executive if and to the extent Cendant continues to
provide them to other Senior Executive Vice Presidents of Cendant.  The Executive will participate to the extent
permissible under the terms and provisions of such plans or programs, and in
accordance with the terms of such plans and program.  Cendant has no obligation hereunder or otherwise to maintain any
plan or program referenced under this paragraph.


 


SECTION V


BUSINESS EXPENSES


 


Cendant will reimburse the Executive for all
reasonable travel and other expenses incurred by the Executive in connection
with the performance of his duties and obligations under this Agreement.  The Executive will comply with such
limitations and reporting requirements with respect to expenses as may be
established by Cendant from time to time and will promptly provide all
appropriate and requested documentation in connection with such expenses.


 


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SECTION VI


DISABILITY


 


A.                                   If
the Executive becomes Disabled, as defined below, during the Period of
Employment, the Period of Employment may be terminated at the option of the
Executive upon notice of resignation to Cendant, or at the option of Cendant
upon notice of termination to the Executive. 
Cendant’s obligation to make payments to the Executive under this
Agreement will cease as of such date of termination, except for Base Salary and
Incentive Compensation Awards earned but unpaid as of the date of such
termination. For purposes of this Agreement, “Disabled” means the Executive’s
inability to perform his duties hereunder, with or without reasonable
accommodation, as a result of serious physical or mental illness or injury for
a period of no less than 90 consecutive days, together with a determination by
an independent medical authority that (i) the Executive is currently unable to
perform such duties and (ii) in all reasonable likelihood such disability will
continue for a period in excess of 180 days. 
Such medical authority shall be mutually and reasonably agreed upon by
Cendant and the Executive and such opinion shall be binding on Cendant and the
Executive.


 


SECTION VII


DEATH


 


In the event of the death of the Executive during the
Period of Employment, the Period of Employment will end and Cendant’s
obligation to make payments under this Agreement will cease as of the date of
death, except for Base Salary and Incentive Compensation Awards earned but
unpaid through the date of death, which will be paid to the Executive’s
surviving spouse, estate or personal representative, as applicable, and except
for benefits provided under the terms of any applicable employee benefit plan
sponsored by Cendant.


 


SECTION VIII


EFFECT OF TERMINATION OF
EMPLOYMENT


 


A.                                   Without
Cause Termination and Constructive Discharge.  If the Executive’s employment terminates during the Period of
Employment due to either a Without Cause Termination or a Constructive
Discharge as defined below, subject to the Executive executing a release of
claims against Cendant as more fully described in paragraph D of this Section
VIII (i) Cendant will pay the Executive (or his surviving spouse, estate or
personal representative, as applicable) upon such event  (a) a lump sum amount equal to the
Executive’s then current Base Salary, plus the Executive’s then current target
Incentive Compensation Award, multiplied by


 


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three (3) and (b) any and all Base Salary and Incentive Compensation
Awards earned but unpaid through the date of such termination, (ii) each option
to purchase shares of Cendant common stock granted to the Executive on or after
the date hereof shall, upon such event, 
become fully vested and exercisable and shall remain exercisable until
the first to occur of the second anniversary of such termination of employment
or the original expiration date of such option and (iii) the Executive shall be
provided with post-termination medical insurance benefits for such period of
time, and on such terms and conditions, no less favorable than as provided to
any other Senior Executive Vice President of Cendant following the date of this
Agreement.


 


B.                                     Termination
for Cause; Resignation.  If the
Executive’s employment terminates due to a Termination for Cause or a
Resignation, Base Salary and any Incentive Compensation Awards earned but
unpaid as of the date of such termination will be paid to the Executive in a
lump sum. Except as provided in this paragraph, Cendant will have no further
obligations to the Executive hereunder.


 


C.                                     For
purposes of this Agreement, the following terms have the following meanings:


 


i.                                          “Termination
for Cause” means (i) the Executive’s willful failure to substantially perform
his duties as an employee of Cendant or any of its subsidiaries (other than any
such failure resulting from incapacity due to physical or mental illness), (ii)
any act of fraud, misappropriation, dishonesty, embezzlement or similar conduct
against Cendant or any of its subsidiaries, (iii) the Executive’s conviction of
a felony or any crime involving moral turpitude (which conviction, due to the
passage of time or otherwise, is not subject to further appeal) or (iv) the
Executive’s gross negligence in the performance of his duties.


 


ii.                                       “Constructive
Discharge” means (i) any material failure of Cendant to fulfill its obligations
under this Agreement (including without limitation any reduction of the Base
Salary, as the same may be increased during the Period of Employment, or other
material element of compensation), (ii) a material and adverse change to, or a
material reduction of, the Executive’s duties and responsibilities to Cendant,
(iii) the relocation of the Executive’s primary office to any location more
than fifty (50) miles from Parsippany, New Jersey, (iv) the Executive shall no
longer report directly to either the Chief Executive Officer of Cendant, or any
senior executive officer of Cendant who reports directly to the Chief Executive
Officer of Cendant or (v) the Period of Employment expires on February 14, 2006
and Cendant does not offer to extend such Period of Employment on substantially
similar professional and economic terms by at least two, and not more than
three, additional year(s).  The Executive
will provide Cendant a written notice which describes the circumstances being
relied on for the termination with respect to this Agreement within thirty (30)


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days after the event
giving rise to the notice.  Cendant will
have thirty (30) days after receipt of such notice to remedy the situation prior
to the termination for Constructive Discharge.


 


iii.                                    “Without
Cause Termination” or “Terminated Without Cause” means termination of the
Executive’s employment by Cendant other than due to death, Disability or
Termination for Cause.


 


iv.                                   “Resignation”
means a termination of the Executive’s employment by the Executive, other than
in connection with a Constructive Discharge.


 


D.                                    Conditions
to Payment and Acceleration.  All
payments and benefits due to the Executive under this Section VIII shall be
made or provided as soon as practicable; provided, however, that
such payments and benefits shall be subject to, and contingent upon, the
execution by the Executive (or his beneficiary or estate) of a release of
claims against Cendant and its affiliates in such form determined by Cendant in
its sole discretion (so long as such release does not limit the Executive’s
right to indemnification under Section X hereof).  The payments due to the Executive under this Section VIII shall
be in lieu of any other severance benefits otherwise payable to the Executive
under any severance plan of Cendant or its affiliates.  To the extent any term or condition of any
option to purchase Cendant common stock conflicts with any term or condition of
this Agreement applicable to such option, the term or condition set forth in
this Agreement shall govern.


 


SECTION IX


OTHER DUTIES OF THE
EXECUTIVE


DURING AND AFTER THE
PERIOD OF EMPLOYMENT


 


A.                                   The
Executive will, with reasonable notice during or after the Period of
Employment, furnish information as may be in his possession and fully cooperate
with Cendant and its affiliates as may be requested in connection with any
claims or legal action in which Cendant or any of its affiliates is or may
become a party; provided, that such cooperation does not impose
unreasonable hardship on the Executive and; further, provided,
that Cendant reimburses the Executive for reasonable expenses.


 


B.                                     The
Executive recognizes and acknowledges that all information pertaining to this
Agreement or to the affairs, business, results of operations, accounting
methods, practices and procedures, members, acquisition candidates, financial
condition, clients, customers or other relationships of Cendant or any of its
affiliates (“Information”) is confidential and is a unique and valuable asset
of Cendant or any of its affiliates. 
Access to and knowledge of certain of the Information is essential


 


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to the performance of the Executive’s duties under this Agreement.  The Executive will not during the Period of
Employment or thereafter, except to the extent reasonably necessary in
performance of his duties under this Agreement, give to any person, firm,
association, corporation, or governmental agency any Information, except as may
be required by law.  The Executive will
not make use of the Information for his own purposes or for the benefit of any
person or organization other than Cendant or any of its affiliates.  The Executive will also use his best efforts
to prevent the disclosure of this Information by others.  All records, memoranda, etc. relating to the
business of Cendant or its affiliates, whether made by the Executive or
otherwise coming into his possession, are confidential and will remain the
property of Cendant or its affiliates.


 


C.                                     i.                                          During
the Period of Employment and for a two (2) year period thereafter (the
“Restricted Period”), irrespective of the cause, manner or time of any
termination, the Executive will not use his status with Cendant or any of its
affiliates to obtain loans, goods or services from another organization on
terms that would not be available to him in the absence of his relationship to
Cendant or any of its affiliates.


 


ii.                                       During
the Restricted Period, the Executive will not make any statements or perform
any acts intended to or which may have the effect of advancing the interest of
any existing or prospective competitors of Cendant or any of its affiliates or
in any way injuring the interests of Cendant or any of its affiliates.  During the Restricted Period, the Executive,
without prior express written approval by the Board, will not engage in, or
directly or indirectly (whether for compensation or otherwise) own or hold
proprietary interest in, manage, operate, or control, or join or participate in
the ownership, management, operation or control of, or furnish any capital to
or be connected in any manner with, any party which competes in any way or
manner with the business of Cendant, as such business or businesses may be conducted
from time to time, either as a general or limited partner, proprietor, common
or preferred shareholder, officer, director, agent, employee, consultant,
trustee, affiliate, or otherwise.  The
Executive acknowledges that Cendant’s businesses are conducted nationally and internationally
and agrees that the provisions in the foregoing sentence will operate
throughout the United States and the world.


 


iii.                                    During
the Restricted Period, the Executive, without express prior written approval
from the Board, will not solicit any members or the then-current clients of
Cendant or any of its affiliates for any existing business of Cendant or any of
its affiliates or discuss with any employee of Cendant or any of its affiliates
information or operation of any business intended to compete with Cendant or
any of its affiliates.


 


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iv.                                   During
the Restricted Period, the Executive will not interfere with the employees or
affairs of Cendant or any of its affiliates or solicit or induce any person who
is an employee of Cendant or any of its affiliates to terminate any
relationship such person may have with Cendant or any of its affiliates, nor
will the Executive during such period directly or indirectly engage, employ or
compensate, or cause or permit any person with which the Executive may be
affiliated, to engage, employ or compensate, any employee of Cendant or any of
its affiliates.  The Executive hereby
represents and warrants that the Executive has not entered into any agreement,
understanding or arrangement with any employee of Cendant or any of its
affiliates pertaining to any business in which the Executive has participated
or plans to participate, or to the employment, engagement or compensation of
any such employee.


 


v.                                      For
the purposes of this Agreement, proprietary interest means legal or equitable
ownership, whether through stock holding or otherwise, of an equity interest in
a business, firm or entity or ownership of more than 5% of any class of equity
interest in a publicly-held company and the term “affiliate” will include
without limitation all subsidiaries and licensees of Cendant.


 


D.                                    The
Executive hereby acknowledges that damages at law may be an insufficient remedy
to Cendant if the Executive violates the terms of this Agreement and that
Cendant will be entitled, upon making the requisite showing, to preliminary
and/or permanent injunctive relief in any court of competent jurisdiction to
restrain the breach of or otherwise to specifically enforce any of the
covenants contained in this Section IX without the necessity of showing any
actual damage or that monetary damages would not provide an adequate
remedy.  Such right to an injunction
will be in addition to, and not in limitation of, any other rights or remedies
Cendant may have.  Without limiting the
generality of the foregoing, neither party will oppose any motion the other
party may make for any expedited discovery or hearing in connection with any
alleged breach of this Section IX.


 


E.                                      The
period of time during which the provisions of this Section IX will be in effect
will be extended by the length of time during which the Executive is in breach
of the terms hereof as determined by any court of competent jurisdiction on
Cendant’s application for injunctive relief.


 


F.                                      The
Executive agrees that the restrictions contained in this Section IX are an
essential element of the compensation the Executive is granted hereunder and
but for the Executive’s agreement to comply with such restrictions, Cendant
would not have entered into this Agreement.


 


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SECTION X


INDEMNIFICATION


 


Cendant will indemnify the Executive to the fullest
extent permitted by the laws of the state of Cendant’s incorporation in effect
at that time, or the certificate of incorporation and by-laws of Cendant,
whichever affords the greater protection to the Executive.


 


SECTION XI


MITIGATION


 


The Executive will not be required to mitigate the
amount of any payment provided for hereunder by seeking other employment or otherwise,
nor will the amount of any such payment be reduced by any compensation earned
by the Executive as the result of employment by another employer after the date
the Executive’s employment hereunder terminates.


 


SECTION XII


WITHHOLDING TAXES


 


The Executive acknowledges and agrees that Cendant may
directly or indirectly withhold from any payments under this Agreement all
federal, state, city or other taxes that will be required pursuant to any law
or governmental regulation.


 


SECTION XIII


EFFECT OF PRIOR
AGREEMENTS


 


This Agreement will supersede any prior employment
agreement between Cendant and the Executive hereof, including, without
limitation, that certain letter agreement between Cendant and the Executive
dated as of April 1, 1999 (except with respect to any provisions in such letter
agreement applicable to the treatment of Cendant stock options in connection
with any termination of the Executive’s employment), and any such prior
employment agreement will be deemed terminated without any remaining obligations
of either party thereunder.


 


SECTION XIV


CONSOLIDATION, MERGER OR
SALE OF ASSETS


 


Nothing in this Agreement will preclude Cendant from
consolidating or merging into or with, or transferring all or substantially all
of its assets to, another corporation which assumes this Agreement and all
obligations and undertakings of


 


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Cendant hereunder.  Upon such a
consolidation, merger or sale of assets the term “Cendant” will mean the other
corporation and this Agreement will continue in full force and effect.


 


SECTION XV


MODIFICATION


 


This Agreement may not be modified or amended except
in writing signed by the parties.  No
term or condition of this Agreement will be deemed to have been waived except
in writing by the party charged with waiver. 
A waiver will operate only as to the specific term or condition waived
and will not constitute a waiver for the future or act on anything other than
that which is specifically waived.


 


SECTION XVI


GOVERNING LAW


 


This Agreement has been executed and delivered in the
State of New York and its validity, interpretation, performance and enforcement
will be governed by the internal laws of that state.


 


SECTION XVII


ARBITRATION


 


A.                                   Any
controversy, dispute or claim arising out of or relating to this Agreement or
the breach hereof which cannot be settled by mutual agreement (other than with
respect to the matters covered by Section IX for which Cendant may, but will
not be required to, seek injunctive relief) will be finally settled by binding
arbitration in accordance with the Federal Arbitration Act (or if not applicable,
the applicable state arbitration law) as follows:  Any party who is aggrieved will deliver a notice to the other
party setting forth the specific points in dispute.  Any points remaining in dispute twenty (20) days after the giving
of such notice may be submitted to arbitration in New York, New York, to the
American Arbitration Association, before a single arbitrator appointed in
accordance with the arbitration rules of the American Arbitration Association
applicable to employment disputes, modified only as herein expressly
provided.  After the aforesaid twenty
(20) days, either party, upon ten (10) days notice to the other, may so submit
the points in dispute to arbitration. 
The arbitrator may enter a default decision against any party who fails
to participate in the arbitration proceedings.


 


B.                                     The
decision of the arbitrator on the points in dispute will be final, unappealable
and binding, and judgment on the award may be entered in any court having
jurisdiction thereof.


 


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C.                                     Except
as otherwise provided in this Agreement, the arbitrator will be authorized to
apportion its fees and expenses and the reasonable attorneys’ fees and expenses
of any such party as the arbitrator deems appropriate.  In the absence of any such apportionment,
the fees and expenses of the arbitrator will be borne equally by each party,
and each party will bear the fees and expenses of its own attorney.


 


D.                                    The
parties agree that this Section XVII has been included to rapidly and
inexpensively resolve any disputes between them with respect to this Agreement,
and that this Section XVII will be grounds for dismissal of any court action
commenced by either party with respect to this Agreement, other than
post-arbitration actions seeking to enforce an arbitration award.  In the event that any court determines that
this arbitration procedure is not binding, or otherwise allows any litigation
regarding a dispute, claim, or controversy covered by this Agreement to
proceed, the parties hereto hereby waive any and all right to a trial by jury
in or with respect to such litigation.


 


E.                                      The
parties will keep confidential, and will not disclose to any person, except as
may be required by law, the existence of any controversy hereunder, the
referral of any such controversy to arbitration or the status or resolution
thereof.


 


SECTION XVIII


SURVIVAL


 


Sections IX, X, XI, XII, and XVII will continue in
full force in accordance with their respective terms notwithstanding any
termination of the Period of Employment.


 


SECTION XIX


SEPARABILITY


 


All provisions of this Agreement are intended to be
severable.  In the event any provision
or restriction contained herein is held to be invalid or unenforceable in any
respect, in whole or in part, such finding will in no way affect the validity
or enforceability of any other provision of this Agreement.  The parties hereto further agree that any
such invalid or unenforceable provision will be deemed modified so that it will
be enforced to the greatest extent permissible under law, and to the extent
that any court of competent jurisdiction determines any restriction herein to
be unreasonable in any respect, such court may limit this Agreement to render
it reasonable


 


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in the light of the circumstances in which it was entered into and
specifically enforce this Agreement as limited.


 


IN WITNESS WHEREOF, the undersigned have executed this
Agreement as of the date first above written.


 


 


	
   

  	
   

  	
  CENDANT CORPORATION

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
  /s/ Henry R. Silverman

  	
   

  
	
   

  	
   

  	
  By:

  	
  Henry R. Silverman

  
	
   

  	
   

  	
  Title:

  	
  Chairman and Chief
  Executive

  Officer

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  THOMAS D. CHRISTOPOUL

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
   

  	
   

  	
  /s/ Thomas D. Christopoul

  	
   

  
						



 


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