Exhibit 10.40


 


CHANGE
IN CONTROL SEVERANCE AGREEMENT


 


FOR
EXECUTIVE OFFICERS AND CERTAIN NEW KEY EMPLOYEES


 


This Severance Agreement (this “Agreement”)
is made as of                                 
by and between Hertz Global Holdings, Inc., a Delaware corporation, and
any successor to the business and/or assets of the Company that assumes this
Agreement (the “Company”), and                                   (“Executive”).


 


RECITALS


 


WHEREAS the Compensation Committee of the
Board of Directors of the Company (the “Board”) has approved this
severance agreement to provide Executive with certain benefits upon certain
terminations of employment;


 


NOW THEREFORE, the parties hereto agree as
follows:


 


1.                                       Term of
Agreement.  This Agreement shall commence on the date hereof and
shall continue in effect through December 31, 2010; provided, that
the term of this Agreement shall automatically be extended for one additional
year beyond 2010 (and successive one year periods thereafter), unless, not
later than September 30, 2008 (for the additional year ending on December 31,
2011) or September 30 of each year thereafter (for each subsequent
extension), the Company shall have given notice that it does not wish to extend
this Agreement for an additional year, in which event this Agreement shall
continue to be effective until the end of its then remaining term; provided,
however, that, notwithstanding any such notice by the Company not to
extend, if a Change in Control (as defined in Section 2 below) shall have
occurred during the original or any extended term of this Agreement, this
Agreement shall continue in effect for a period of twenty-four months beyond
such Change in Control. Notwithstanding the foregoing, this Agreement shall
terminate if Executive ceases to be an employee of the Company and its
subsidiaries for any reason prior to a Change in Control which, for these
purposes, shall include cessation of such employment as a result of the sale or
other disposition of the division, subsidiary or other business unit by which
Executive is employed.


 


2.                                       Change in
Control.  No benefits shall be payable hereunder unless there
shall have been a Change in Control of the Company. For purposes of this
Agreement, a “Change in Control” shall mean the first to occur of any of the
following after the date of this Agreement:


 


(A)                              the acquisition by any
person, entity or “group” (as defined in Section 13(d) of the
Securities Exchange Act of 1934, as amended), other than any such acquisition
by the Company, any of its subsidiaries, any employee benefit plan of the
Company or any of its subsidiaries, or any of the Investors (as


 

















 


defined below), of 50% or more of the combined voting power of the
Company’s then outstanding voting securities;


 


(B)                                within any 24-month
period, the Incumbent Directors (as defined below) shall cease to constitute at
least a majority of the Board or the board of directors of any successor to the
Company, provided that any director elected to the Board, or nominated
for election, by a majority of the Incumbent Directors then still in office
shall be deemed to be an Incumbent Director for purposes of this clause (B); or


 


(C)                                the merger or
consolidation of the Company as a result of which persons who were owners of
the voting securities of the Company immediately prior to such merger or
consolidation, or any of the Investors, do not, immediately thereafter, own,
directly or indirectly, more than 50% of the combined voting power entitled to
vote generally in the election of directors of the merged or consolidated company;


 


(D)                               the approval by the
Company’s shareholders of the liquidation or dissolution of the Company other
than a liquidation of the Company into any subsidiary of the Company or a
liquidation a result of which persons who were stockholders of the Company immediately
prior to such liquidation, or any or all of the Investors, own, directly or
indirectly, more than 50% of the combined voting power entitled to vote
generally in the election of directors of the entity that holds substantially
all of the assets of the Company following such event; and


 


(E)                                 the sale, transfer or
other disposition of all or substantially all of the assets of the Company to
one or more persons or entities that are not, immediately prior to such sale,
transfer or other disposition, affiliates of the Company.


 


Notwithstanding the foregoing, a Change in
Control shall not be deemed to occur if the Company files for bankruptcy,
liquidation or reorganization under the United States Bankruptcy Code.


 


For purposes of the foregoing definition, the
following terms shall have the following meanings:


 


“Incumbent
Director” means the persons who were members of the Board as of the date of
this Agreement; provided, that a director elected, or nominated for
election, to the Board in connection with a proxy contest after the date of
this Agreement shall not be considered an Incumbent Director.


 


“Investors”
means collectively (i) the Initial Investors, (ii) TC
Group L.L.C. (which operates under the trade name The Carlyle Group), (iii) Clayton,



 


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Dubilier & Rice, Inc., (iv) Merrill
Lynch Global Partners, Inc., (v) any affiliate of any of the
foregoing, including any investment fund or vehicle managed, sponsored or
advised by any of the foregoing, (vi) any successor in interest to
any of the foregoing.


 


“Initial
Investors” means, collectively, the Carlyle Investors, the CDR Investors and
the Merrill Lynch Investors.


 


“Carlyle
Investors” means, collectively, (i) Carlyle Partners IV, L.P., (ii) CEP
II Participations S.àr.l., (iii) CP IV Co-investment, L.P., and (iv) CEP
II U.S. Investments, L.P.


 


“CDR Investors”
means, collectively, (i) Clayton, Dubilier & Rice Fund
VII, L.P., (ii) CDR CCMG Co-Investor L.P., and (iii) CD&R
Parallel Fund VII, L.P.


 


“Merrill Lynch
Investors” means, collectively, (i) ML Global Private Equity Fund,
L.P., (ii) Merrill Lynch Ventures L.P. 2001, (iii) CMC-Hertz
Partners, L.P., and (iv) ML Hertz Co-Investor, L.P.


 


3.                                       Termination
Following Change In Control.  If a Change in Control shall have
occurred, Executive shall be entitled to the benefits provided in Section 4(iv) upon
the subsequent termination of Executive’s employment with the Company and its
subsidiaries during the two year period following such Change in Control (the “Protected
Period”) unless such termination is (A) a result of Executive’s
death, Retirement or Disability (except as provided in Section 3(i) below),
(B) by Executive without Good Reason (as defined in Section 3(iii) below),
or (C) by the Company or any of its subsidiaries for Cause (as
defined in Section 3(ii) below). In addition, Executive shall be
entitled to the compensation provided for in Section 4(iv) hereof
(and without regard to Section 4(vii) hereof) payable only upon the
occurrence of an event constituting a Section 409A Change in Control (as
if his termination had occurred after the Section 409A Change in Control)
if, after an agreement has been signed which, if consummated, would result in a
Section 409A Change in Control, (x) Executive is terminated
without Cause by the Company and its subsidiaries prior to the Section 409A
Change in Control, and (y) such termination was at the instigation
or request of the party to the agreement evidencing the transaction that will
result in the Section 409A Change in Control or otherwise occurs in
connection with the anticipated Section 409A Change in Control. “Section 409A
Change in Control” means any event described in Section 2 of this
Agreement if such event also is a “change in control event” within the meaning
of the regulations under Section 409A(a)(2)(A)(v) of the Code
determined in accordance with the uniform methodology and procedures adopted by
the Company.


 


(i)                                     Disability;
Retirement. For purposes of this Agreement, “Disability” shall mean
permanent and total disability as such term is defined 


 


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under Section 22(e)(3) of the
Internal Revenue Code of 1986, as amended (the “Code”), without regard
to whether Executive is subject to the Code. Any question as to the existence
of Executive’s Disability upon which Executive and the Company cannot agree
shall be determined by a qualified independent physician selected by Executive
(or, if Executive is unable to make such selection, such selection shall be
made by any adult member of Executive’s immediate family or Executive’s legal
representative), and approved by the Company, said approval not to be
unreasonably withheld. The determination of such physician made in writing to
the Company and to Executive shall be final and conclusive for all purposes of
this Agreement. For purposes of this Agreement, “Retirement” and
corollary terms shall mean Executive’s voluntary termination of employment with
the Company under any of the Company’s retirement plans that occurs prior to
delivery of a Notice of Termination pursuant to Section 3(iv) below; provided,
that notwithstanding the foregoing, no Retirement that occurs after any other
termination of employment shall adversely affect, interfere with or otherwise
impair in any way Executive’s right to receive the payments and benefits to
which he is entitled on account of a termination without Cause or with Good
Reason. Accordingly, and for the avoidance of doubt, if Executive provides a
Notice of Termination for Good Reason, and otherwise satisfies the conditions
for Good Reason pursuant to this Agreement, and also Retires, such Retirement
shall not adversely affect, interfere with or otherwise impair in any way his
right to receive payments and benefits hereunder. Conversely, if Executive
terminates his employment on account of Retirement and at such time is not (x) terminating
his employment for Good Reason pursuant to this Agreement or (y) being
terminated by the Company without Cause pursuant to this Agreement, he shall
not be entitled to the payments and benefits provided in this Agreement.


 


(ii)                                  Cause. For
purposes of this Agreement, “Cause” shall mean (i) willful
and continued failure to perform substantially the Executive’s material duties
with the Company (other than any such failure resulting from the Executive’s
incapacity due to physical or mental illness) after a written demand for
substantial performance specifying the manner in which the Executive has not
performed such duties is delivered by the Chief Executive Officer of the
Company to the Executive, (ii) engaging in willful and serious
misconduct that is injurious to the Company or any of its subsidiaries, (iii) one
or more acts of fraud or personal dishonesty resulting in or intended to result
in personal enrichment at the expense of the Company or any of its
subsidiaries, (iv) substantial abusive use of alcohol, drugs or
similar substances that, in the sole judgment of the Company, impairs the
Executive’s job performance, (v) material violation of any material
Company policy that results in material harm to the Company or any of its
subsidiaries or (vi) indictment for or conviction of a felony or of
any crime (whether or not a felony) involving moral turpitude. Notwithstanding
the foregoing, Executive shall not be deemed to have been terminated for Cause 


 


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unless and until there shall have been
delivered to Executive a copy of a resolution duly adopted by the affirmative
vote of not less than three-quarters (3/4) of the Incumbent Directors of the
Board at a meeting of the Board called and held for such purpose (after
reasonable notice to Executive and an opportunity for Executive, together with
Executive’s counsel, to be heard before the Board), finding that, in the good
faith opinion of the Board, Executive was guilty of conduct set forth above in
this Section 3(ii) and specifying the particulars thereof in detail.


 


(iii)                               Good Reason. Executive
shall be entitled to terminate employment with Good Reason. For the purpose of
this Agreement, “Good Reason” shall mean the occurrence, without
Executive’s express written consent, of any of the following circumstances
during the Protected Period unless, in the case of Sections 3(iii)(A),
(E), or (F), such circumstances are fully corrected prior to the date specified
as the Date of Termination (as defined in Section 3(v)) in the Notice of
Termination (as defined in Section 3(iv)) given in respect thereof:


 


(A)                              the assignment to
Executive of any duties or responsibilities not comparable to Executive’s
position (as it existed immediately prior to the Change in Control) and that
results in a substantial diminution or material adverse change in such duties
or responsibilities from those in effect immediately prior to the Change in Control
other than a change in title or reporting relationships;


 


(B)                                a reduction by the
Company or any of its subsidiaries in Executive’s annual base salary as in
effect on the date hereof or as the same may be increased from time to time;


 


(C)                                the relocation of
Executive’s place of business to a location more than fifty miles from
Executive’s principal place of employment immediately preceding the Change in
Control that materially increases Executive’s commute compared to Executive’s
commute as in effect immediately prior to the Change in Control;


 


(D)                               a reduction by the
Company or any of its subsidiaries in Executive’s annual bonus opportunity as
in effect on the date hereof or as the same may be increased from time to time;


 


(E)                                 the failure by the
Company or any of its subsidiaries to continue Executive’s participation in any
long-term incentive compensation plan on a level comparable to other senior
executives;


 


(F)                                 except as required by
law, a reduction by the Company or any of its subsidiaries of 5% or more in the
aggregate benefits provided by 


 


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Executive (excluding changes to such benefits
that occur in the ordinary course, are of general application, and increase
co-payments, deductibles or premiums which must be paid by Executive) as those
enjoyed by Executive under the employee benefit and welfare plans of the
Company and its subsidiaries, including, without limitation, the pension, life
insurance, medical, dental, health and accident, retiree medical, disability,
deferred compensation and savings plans, in which Executive was participating
at the time of the Change in Control;


 


(G)                                the failure of the
Company to obtain an agreement from any successor to assume and agree to
perform this Agreement, as contemplated in Section 6 hereof; or


 


(H)                               any purported
termination of Executive’s employment by the Company or its subsidiaries which
is not effected pursuant to a Notice of Termination satisfying the requirements
of Section 3(iv) below (and, if applicable, the requirements of Section 3(ii) above);
for purposes of this Agreement, no such purported termination shall be
effective.


 


Executive’s continued employment shall not
constitute consent to, or a waiver of rights with respect to, any circumstances
constituting Good Reason hereunder. Executive must provide the Notice of
Termination not later than 180 days following the date he or she had actual
knowledge of the event constituting Good Reason.


 


(iv)                              Notice of Termination.
Any purported termination of Executive’s employment by the Company and its
subsidiaries or by Executive shall be communicated by written Notice of
Termination to the other party hereto in accordance with Section 7 hereof.
For purposes of this Agreement, a “Notice of Termination” shall mean a notice
which shall indicate the specific termination provision in this Agreement
relied upon and shall set forth in reasonable detail (other than with respect
to a Good Reason termination pursuant to Section 3(iii)(H)) the facts and
circumstances claimed to provide a basis for termination of Executive’s
employment under the provision so indicated.


 


(v)                                 Date of Termination.
“Date of Termination” shall mean (A) if Executive’s
employment is terminated for Disability, 30 days after Notice of Termination is
given (provided that Executive shall not have returned to the full-time
performance of Executive’s duties during such 30 day period), and (B) if
Executive’s employment is terminated pursuant to Section 3(ii) or (iii) above
or for any reason (other than Disability), the date specified in the Notice of
Termination (which, in the case of a termination pursuant to Section 3(ii) above
shall not be less than 30 days, and in the case of a termination pursuant to Section 3(iii) above
shall not be less than 30 nor more than 60 days, respectively, 


 


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from the date such Notice of Termination is
given); provided, that, if within 30 days after any Notice of
Termination is given the party receiving such Notice of Termination notifies
the other party that a dispute exists concerning the grounds for termination,
the Date of Termination shall be the date on which the dispute is finally
determined, either by mutual written agreement of the parties, by a binding
arbitration award or by a final judgment, order or decree of a court of
competent jurisdiction (which is not appealable or the time for appeal
therefrom having expired and no appeal having been perfected); provided,
further, that the Date of Termination shall be extended by a notice of
dispute only if such notice is given in good faith and the party giving such
notice pursues the resolution of such dispute with reasonable diligence. Notwithstanding
the pendency of any such dispute, the Company and its subsidiaries will continue
to pay Executive’s full compensation in effect when the notice giving rise to
the dispute was given (including, but not limited to, base salary and bonus)
and continue Executive as a participant in all incentive compensation, benefit
and insurance plans in which Executive was participating when the notice giving
rise to the dispute was given, until the dispute is finally resolved in
accordance with this Section 3(v). Amounts paid under this Section 3(v) are
in addition to all other amounts due under this Agreement and shall not be
offset against or reduce any other amounts due under this Agreement. In the
event that the Company is terminating Executive the Company may, if it so
chooses, pay Executive the base salary which he would have received in lieu of waiting
for the expiration of any notice period otherwise required hereby and bar
Executive from any of the Company’s premises, offices or properties, subject to
any rights set forth herein for Executive to contest such termination.


 


4.                                       Compensation
upon Termination or During Disability. Upon termination of Executive’s
employment or during a period of Disability, in either case, during the
Protected Period, Executive shall be entitled to the following benefits:


 


(i)                                     During any period
that Executive fails to perform Executive’s full-time duties with the Company
and its subsidiaries as a result of the Disability, Executive shall continue to
receive an amount equal to Executive’s base salary at the rate in effect at the
commencement of any such period, and Bonus (as defined in Section 4(iv)(B)),
through the Date of Termination for Disability; provided, that if any
such period of Disability ends during the Protected Period, Executive shall
have the right to resume active employment with the Company immediately following
the end of such period of Disability, unless, prior to the end of such period
of Disability, the Company has terminated Executive’s employment. Thereafter,
Executive’s benefits shall be determined in accordance with the employee
benefit programs of the Company and its subsidiaries then in effect.


 


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(ii)                                  If Executive’s
employment is terminated by the Company or any of its subsidiaries for Cause or
by Executive without Good Reason (excluding death, Disability or Retirement)
the Company (or one of its subsidiaries, if applicable) shall pay through the
Date of Termination Executive’s full base salary at the rate in effect at the
time Notice of Termination is given and shall pay any amounts otherwise payable
to Executive on or immediately prior to the Date of Termination pursuant to any
other compensation plans, programs or employment agreements then in effect, and
the Company shall have no further obligations to Executive under this
Agreement.


 


(iii)                               If Executive’s
employment is terminated by reason of Executive’s death or Retirement,
Executive’s benefits shall be determined in accordance with the retirement and
other benefit programs of the Company and its subsidiaries then in effect,
except as otherwise provided in Section 3(i).


 


(iv)                              If Executive’s employment
by the Company and its subsidiaries is terminated (other than for death or
Disability) by (a) the Company and its subsidiaries other than for
Cause or (b) Executive with Good Reason, then, subject to Executive
executing, delivering and not revoking the Release of Claims attached to this
Agreement as Exhibit A (the “Release”) within 30 days following the
Separation from Service Date (as defined in Section 4(vii)), Executive
shall be entitled to the benefits provided below:


 


(A)                              The Company (or one of
its subsidiaries, if applicable) shall pay any unpaid portion of Executive’s
full base salary, at the rate in effect at the time of the Change in Control
(the “Base Salary”), and a pro-rated annual bonus at target level, in
each case, calculated through the Date of Termination, no later than the
thirtieth day following the Date of Termination, plus all other amounts to
which Executive is entitled under any compensation plan of the Company
applicable to Executive, at the time such payments are due.


 


(B)                                The Company shall pay
Executive, not later than 10 days following the date on which the Release has
become effective and irrevocable, as severance pay to Executive, a severance
payment equal to        times the sum of (i) Executive’s
Base Salary, and (ii) Bonus. For purposes of this Agreement, the “Bonus”
shall mean the average annual cash bonus paid (or awarded, if different) in
respect of each of the three prior bonus years (exclusive of any special or
prorated bonuses). If Executive has less than three years of bonus history, “Bonus”
shall mean the target bonus of the year of termination.


 


(C)                                The Company shall
credit the Executive with an additional       
years of age and an additional        “Years of
Service” for all purposes 


 


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under The Hertz Corporation Supplemental
Executive Retirement Plan (“SERP II”) (the length of such additional
years of service, the “Severance Period”) with the benefit under the SERP
II to be provided at the time or times set forth under the terms of SERP II
without regard to Section 4(vii), and the averaging period over which “Final
Average Earnings” (as defined in SERP II) is determined shall include the
Severance Period (and, for this purpose, the payment made pursuant to Section 4(iv)(B) shall
be deemed to be compensation earned ratably over the Severance Period); provided
that, if Executive does not at the Date of Termination have at least five “Vesting
Years of Service” under the “Retirement Plan” (as these terms are used or
defined in SERP II), the following additional provisions shall apply to
Executive: (1) Executive shall, notwithstanding the second
paragraph of Section 3.2 of SERP II, be fully vested in his benefit under
SERP II (as increased pursuant to this Section 4(ii)); (2) if
Executive’s actual years of service plus the years of service credited pursuant
to this Section 4(iv)(C) equal less than five, then, notwithstanding Section 1.10
of SERP II, the averaging period over which Final Average Earnings shall be
determined shall be the period of such actual and credited service; (3) Executive’s
benefit under SERP II and this Agreement shall be reduced applying the
reduction factors set forth in the SERP II to reflect the timing of payment of
such benefit; and (4) such benefit shall be paid at the same time
as the payment set forth in Section 4(iv)(B) is paid.


 


(D)                               From the Date of
Termination, until the earlier of (i) the last day of the Severance
Period or (ii) the date upon which Executive becomes eligible to
participate in plans of another employer (such period, the “Benefit
Continuation Period”), the Company will continue Executive’s participation
and coverage in all the Company’s life, medical, dental plans and other welfare
benefit plans (but excluding the Company’s disability plans) (“Insurance
Benefits”); provided that if any other Company plan, arrangement or
agreement provides for continuation of Insurance Benefits, then Executive shall
receive such coverage under such other plan, arrangement or agreement, and if
the period of such coverage is shorter than the Benefit Continuation Period,
then Executive shall receive pursuant to this Section 4(iv)(D), such
coverage for the remainder of the Benefit Continuation Period.


 


(E)                                 The Company shall
provide to Executive outplacement services or executive recruiting services
provided by a professional outplacement provider or executive recruiter at a
cost to the Company of not more than 10% of Executive’s Base Salary (not to exceed
$25,000) to be provided within the period ending no later than the end of the
year following the year in which the Date of Termination occurs.


 


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(v)                                 To the extent
outstanding following a Change in Control, Executive’s stock options and other
equity awards shall be governed by the terms of the equity incentive plans and
award agreements under which such stock options and other equity awards were awarded.


 


(vi)                              The Company shall also
pay to Executive, no less frequently than monthly, all legal fees and expenses
reasonably incurred by Executive in connection with this Agreement (including
all such fees and expenses, if any, incurred in contesting or disputing the
nature of any such termination for purposes of this Agreement or in seeking to
obtain or enforce any right or benefit provided by this Agreement); provided,
that if a determination is made by the arbitrator selected under Section 12
hereof that Executive has failed to prevail on at least one material claim, the
Company shall not be liable to pay such legal fees or expenses otherwise
provided for thereunder and the Company shall be entitled to recover from
Executive any such amounts so paid (either directly or, except as would violate
the requirements of Section 409A(a)(3) of the Code, by setoff against
any amounts then owed Executive by the Company). Notwithstanding the
penultimate sentence of Section 8, no reimbursement pursuant to this Section 4(vi) shall
be paid later than the last day of the 10th calendar year following the
calendar year in which the applicable statute of limitations for breach of
contract claims expires or, if later, the last day of the calendar year
following the calendar year in which there is a settlement or other final and
nonappealable resolution of the related contest or dispute.


 


(vii)                           Notwithstanding the
foregoing provisions of this Section 4, if, as of the Separation from
Service Date, Executive is a Specified Employee, then, except to the extent
that this Agreement does not provide for a “deferral of compensation” within
the meaning of Section 409A of the Code, the following shall apply:


 


1)                                      No
payments shall be made and no benefits shall be provided to Executive, in each
case, during the period beginning on the Separation from Service Date and
ending on the six-month anniversary of such date or, if earlier, the date of
Executive’s death.


 


2)                                      On
the first business day of the first month following the month in which occurs
the six-month anniversary of the Separation from Service Date or, if earlier,
Executive’s death, the Company shall make a one-time, lump-sum cash payment to
the Executive in an amount equal to the sum of (x) the amounts
otherwise payable to the Executive under this Agreement during the period
described in Section 4(vii)1) above and (y) the amount of
interest on the foregoing at the applicable federal rate for instruments of
less than one year.


 


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For purposes of this Agreement, “Separation from Service Date”
shall mean the date of the Executive’s “separation from service” within the
meaning of Section 409A(a)(2)(i)(A) of the Code and determined in
accordance with the default rules under regulations promulgated under Section 409A
of the Code. “Specified Employee” shall mean a “specified employee”
within the meaning of Section 409A(a)(2)(B)(1) of the Code, as
determined in accordance with the uniform methodology and procedures adopted by
the Company and then in effect.


 


5.                                       Excise Taxes.


 


(i)                                     (A)  In
the event that any payment or benefit received or to be received by Executive
pursuant to the terms of this Agreement (the “Contract Payments”) or in
connection with Executive’s termination of employment or contingent upon a
Change in Control of the Company pursuant to any plan or arrangement or other
agreement with the Company (or any affiliate) (“Other Payments” and,
together with the Contract Payments, the “Payments”) would be subject to
the excise tax (the “Excise Tax”) imposed by Section 4999 of the
Code, as determined as provided below, the Company shall pay to Executive, at
the time specified in Section 5(ii) below, an additional amount (the “Gross-Up
Payment”) such that the net amount retained by Executive, after deduction
of all taxes required to be paid upon the payment provided for by this Section 5(i),
and any interest, penalties or additions to tax payable by Executive with
respect thereto, shall be equal to the total present value of the Excise Taxes
imposed upon the Payments; provided, that if Executive’s Payment is,
when calculated on a net-after-tax basis, less than 110% of the amount of the
Payment which could be paid to Executive under Section 280G of the Code
without causing the imposition of the Excise Tax, then the Payment shall be
limited to the largest amount payable (as described above) without resulting in
the imposition of any Excise Tax (such amount, the “Capped Amount”).


 


(B)                                For purposes of
determining the Capped Amount, whether any of the Payments will be subject to
the Excise Tax and the amounts of such Excise Tax, (1) the total
amount of the Payments shall be treated as “parachute payments” within the
meaning of Section 280G(b)(2) of the Code, and all “excess parachute
payments” within the meaning of Section 280G(b)(1) of the Code shall
be treated as subject to the Excise Tax, except to the extent that, in the
opinion of independent tax counsel selected by the Company’s independent
auditors and reasonably acceptable to Executive (“Tax Counsel”), a
Payment (in whole or in part) does not constitute a “parachute payment” within
the meaning of Section 280G(b)(2) of the Code, or such “excess
parachute payments” (in whole or in part) are not subject to the Excise Tax, (2) the
amount of the Payments that shall be treated as subject to the Excise Tax shall
be equal to the lesser of (A) the total amount of the Payments or (B) the
amount of “excess parachute payments” within the meaning of Section 280G(b)(1) of
the Code (after applying clause (1) hereof), and (3) the value
of any noncash benefits or any deferred payment or benefit shall be determined
by Tax Counsel in accordance with the principles of Sections 280G(d)(3) and



 


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(4) of the Code. For purposes of
determining the amount of the Gross-Up Payment, Executive shall be deemed to
pay federal income tax at the highest marginal rates of federal income taxation
applicable to individuals in the calendar year in which the Gross-Up Payment is
to be made and state and local income taxes at the highest effective rates of
taxation applicable to individuals as are in effect in the state and locality
of Executive’s residence in the calendar year in which the Gross-Up Payment is
to be made, net of the maximum reduction in federal income taxes that can be
obtained from deduction of such state and local taxes, taking into account any
limitations applicable to individuals subject to federal income tax at the
highest marginal rates.


 


(C)                                If the Tax Counsel determines
that any Excise Tax is payable by Executive and that the criteria for reducing
the Payments to the Capped Amount (as described in Section 5(i)(A) above)
is met, then the Company shall reduce the Payments by the amount which, based
on the Tax Counsel’s determination and calculations, would provide Executive
with the Capped Amount, and pay to Executive such reduced Payments; provided
that the Company shall first reduce the severance payment under Section 4(iv)(B) and
shall next reduce the benefits described in Section 4(iv)(C). If the Tax
Counsel determines that no Excise Tax is payable by Executive, it shall, at the
same time as it makes such determination, furnish Executive with an opinion
that he has substantial authority not to report any Excise Tax on his/her
federal, state, local income or other tax return. Any determination by the Tax
Counsel as to the amount of the Gross-Up Payment shall be binding upon the
Company and Executive absent a contrary determination by the Internal Revenue
Service or a court of competent jurisdiction; provided, that no such
determination shall eliminate or reduce the Company’s obligation to provide any
Gross-Up Payment that shall be due as a result of such contrary determination.


 


(ii)                                  The Gross-Up Payments
provided for in Section 5(i) hereof shall be made upon the earlier of
(i) the payment to Executive of any Contract Payment or Other
Payment or (ii) the imposition upon Executive or payment by
Executive of any Excise Tax.


 


(iii)                               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 Payment. Such
notification shall be given as soon as practicable but no later than 10
business days after 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. Executive shall not pay such claim prior to the
expiration of the 30 day period following the date on which 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). If the Company notifies
Executive in writing prior to the expiration of such period that it desires to
contest such claim, Executive shall:


 


12

















 


1)                                      give
the Company any information reasonably requested by the Company relating to
such claim;


 


2)                                      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 to such claim by an attorney
reasonably selected by the Company and reasonably satisfactory to Executive;


 


3)                                      cooperate
with the Company in good faith in order to effectively contest such claim; and


 


4)                                      permit
the Company to participate in any proceedings relating to such claim;


 


provided, that the
Company shall bear and pay directly all costs and expenses (including, but not
limited to, additional interest and penalties and related legal, consulting or
other similar fees) incurred in connection with such contest and shall
indemnify and hold Executive harmless, on an after-tax basis, for any Excise
Tax or other tax (including interest and penalties with respect thereto)
imposed as a result of such representation and payment of costs and expenses.


 


(iv)                              The Company shall control
all proceedings taken in connection with such contest and, at its sole option,
may pursue or forego any and all administrative appeals, proceedings, hearings
and conferences with the taxing authority in respect of such claim and may, at
its sole option, either direct Executive to pay the tax claimed and sue for a
refund or contest the claim in any permissible manner, and Executive agrees to
prosecute such contest to a determination before any administrative tribunal,
in a court of initial jurisdiction and in one or more appellate courts, as the
Company shall determine; provided, that if the Company directs Executive
to pay such claim and sue for a refund, the Company shall advance the amount of
such payment to Executive on an interest-free basis, and shall indemnify and
hold Executive harmless, on an after-tax basis, from any Excise Tax or other
tax (including interest or penalties with respect thereto) imposed with respect
to such advance or with respect to any imputed income with respect to such
advance; and provided, further, that if Executive is required to
extend the statute of limitations to enable the Company to contest such claim,
Executive may limit this extension solely to such contested amount. The Company’s
control of the contest shall be limited to issues with respect to which a
Gross-Up Payment would be payable hereunder and Executive shall be entitled to
settle or contest, as the case may be, any other issue raised by the Internal
Revenue Service or any other taxing authority. In addition, no position may be
taken nor any final resolution be agreed to by the Company without Executive’s
consent if such position or resolution could reasonably be expected to
adversely affect Executive (including any other tax position of Executive
unrelated to the matters covered hereby).


 


13

















 


(v)                                 As a result of the
uncertainty in the application of Section 4999 of the Code at the time of
the initial determination by the Company or the Tax Counsel hereunder, it is
possible that Gross-Up Payments which will not have been made by the Company
should have been made (“Underpayment”), consistent with the calculations
required to be made hereunder. In the event that the Company exhausts its
remedies and Executive thereafter is required to pay to the Internal Revenue
Service an additional amount in respect of any Excise Tax, the Company or the
Tax Counsel shall determine the amount of the Underpayment that has occurred
and any such Underpayment shall promptly be paid by the Company to or for the
benefit of Executive.


 


(vi)                              If, after the receipt by
Executive of the Gross-Up Payment or an amount advanced by the Company in
connection with the contest of an Excise Tax claim, Executive becomes entitled
to receive any refund with respect to such claim, Executive shall promptly pay
to the Company the amount of such refund (together with any interest paid or
credited thereon after taxes applicable thereto). If, after the receipt by
Executive of an amount advanced by the Company in connection with an Excise Tax
claim, a determination is made that Executive shall not be entitled to any
refund with respect to such claim and the Company does not notify Executive in
writing of its intent to contest the denial of such refund prior to the
expiration of 30 days after such determination, such advance shall be forgiven
and shall not be required to be repaid.


 


(vii)                           Notwithstanding the other
provisions of this Section 5 and the penultimate sentence of Section 9,
all Gross-Up Payments shall be made to the Executive not later than the end of
the calendar year following the year in which the Executive remits the related
taxes and any reimbursement of the costs and expenses described in Section 5(iii) shall
be paid not later than the end of the calendar year following the year in which
there is a final and nonappealable resolution of, or the taxes are remitted
that are the subject of, the related claim.


 


6.                                       Successors;
Binding Agreement.


 


(i)                                     The Company will
require any successor (whether direct or indirect, by purchase, merger,
consolidation or otherwise) to all or substantially all of the business and/or
assets of the Company to expressly assume and agree to perform this Agreement
in the same manner and to the same extent that the Company is required to
perform it. Failure of the Company to obtain such assumption and agreement
prior to the effectiveness of any such succession shall be a breach of this
Agreement and shall entitle Executive to compensation from the Company in the
same amount and on the same terms as Executive would be entitled hereunder if
Executive had terminated Executive’s employment with Good Reason following a
Change in Control, except that for purposes of implementing the foregoing, the
date on which any such succession becomes effective shall be deemed the Date of
Termination.


 


14

















 


(ii)                                  This Agreement shall
inure to the benefit of and be enforceable by Executive’s personal or legal
representatives, executors, administrators, successors, heirs, distributees,
devisees and legatees. If Executive should die while any amount would still be
payable to Executive hereunder if Executive had continued to live, all such
amounts, unless otherwise provided herein, shall be paid in accordance with the
terms of this Agreement to Executive’s devisee, legatee or other designee or,
if there is no such designee, to Executive’s estate.


 


7.                                       Notice. For
the purpose of this Agreement, notices and all other communications provided
for in this Agreement shall be in writing and shall be deemed to have been duly
given when delivered or mailed by United States registered mail, return receipt
requested, postage prepaid (or its international equivalent)


 


if to the Company to:


 


Hertz Global Holdings, Inc.


225 Brae Boulevard


Park Ridge, New Jersey 07656


Attention: Senior Vice President, Chief Human
Resource Officer


With a separate duplicate copy of such notice
to be provided to the General Counsel of the Company


 


if to the Executive, to the to the Executive at his or her most recent
address as shown on the books and records of the Company or any subsidiary of
the Company employing the Executive.


 


8.                                       Miscellaneous.
No provision of this Agreement may be modified, waived or discharged unless
such waiver, modification or discharge is agreed to in writing and signed by
Executive and such officer as may be specifically designated by the Board. No
waiver by either party hereto at any time of any breach by the other party
hereto of, or compliance with, any conditions 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. The validity, interpretation, construction and performance of this
Agreement shall be governed by the internal laws of the State of New Jersey,
without regard to its conflict of law provisions. This Agreement is intended to
satisfy the requirements of Section 409A of the Code with respect to
amounts subject thereto and shall be interpreted and construed and shall be
performed by the parties consistent with such intent, and the Company shall
have no right to accelerate any payment or the provision of any benefits under
this Agreement or to make or provide any such payment or benefits if such
payment or provision of such benefits would, as a result, be subject to tax
under Section 409A of the Code. All references to sections of the Code
shall be deemed also to refer to any successor provisions to such sections and
the applicable regulations and guidance thereunder. Any payments provided for
hereunder shall be paid net of any applicable withholding required under
federal, state, local or 


 


15

















 


other applicable law. Anything in this
Agreement to the contrary notwithstanding, no reimbursement payable to
Executive pursuant to any provisions of this Agreement or pursuant to any plan
or arrangement of the Company covered by this Agreement shall be paid later
than the last day of the calendar year following the calendar year in which the
related expense was incurred, and no such reimbursement during any calendar
year shall affect the amounts eligible for reimbursement in any other calendar
year, except, in each case, to the extent that the right to reimbursement does
not provide for a “deferral of compensation” within the meaning of Section 409A
of the Code. The obligations of the Company under Sections 4 and 5 shall
survive the expiration of the term of this Agreement.


 


9.                                       Other
Arrangements. The severance benefits under this Agreement are not additive
or cumulative to severance or termination benefits that Executive might also be
entitled to receive under the terms of a written employment agreement, a
severance agreement or any other arrangement with the Company. As a condition
of the Company entering into this Agreement, Executive expressly agrees that
this Agreement supersedes all prior agreements, and sets forth the entire
severance benefit to which he or she is entitled while this Agreement remains
in effect. The provisions of this Agreement may provide for payments to
Executive under certain compensation or bonus plans under circumstances where
such plans would not provide for payment thereof. It is the specific intention
of the Company that the provisions of this Agreement shall supersede any
provisions to the contrary in such plans, to the extent permitted by applicable
law, and such plans shall be deemed to have been amended to correspond with
this Agreement without further action by the Company or the Board.


 


10.                                 Validity. 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 remain in full force and effect.


 


11.                                 Counterparts. This
Agreement may be executed in several counterparts, each of which shall be
deemed to be an original but all of which together will constitute one and the
same instrument.


 


12.                                 Arbitration;
Indemnification.


 


(i)                                     In the event of
any dispute under the provisions of this Agreement, other than a dispute in
which the primary relief sought is an equitable remedy such as an injunction,
the parties shall have the dispute, controversy or claim settled by arbitration
in Park Ridge, New Jersey (or such other location as may be mutually agreed
upon by the Company and the Executive) in accordance with the National Rules for
the Resolution of Employment Disputes then in effect of the American
Arbitration Association, before a single arbitrator selected by agreement of
the parties (or, in the absence of such agreement, appointed by the American
Arbitration Association). Any award entered by the arbitrator shall be final,
binding and nonappealable and judgment may be entered 


 


16

















 


thereon by either party in accordance with
applicable law in any court of competent jurisdiction. This arbitration
provision shall be specifically enforceable. The arbitrator shall have no
authority to modify any provision of this Agreement or to award a remedy for a
dispute involving this Agreement other than a benefit specifically provided
under or by virtue of this Agreement. Fees of the American Arbitration
Association and the arbitrator and any expenses relating to the conduct of the
arbitration (including the Company’s and Executive’s reasonable attorneys’ fees
and expenses) shall be paid in accordance with Section 4(vi).


 


(ii)                                  Following any
termination of employment of Executive (other than a termination by the Company
for Cause), the Company shall indemnify and hold harmless Executive to the
fullest extent permitted under the Company’s by-laws (as in effect prior to the
Change in Control) and applicable law for any claims, costs and expenses
arising out of or in connection with Executive’s employment with the Company
(without regard to when such claim is asserted or issue is raised, so long as
it relates to conduct or events that occurred while Executive was employed with
the Company) and shall, for a period of not less than six years following a
Change in Control, maintain directors’ and officers’ liability insurance
coverage for the benefit of Executive which provides him with coverage, if any,
no less favorable than that in effect prior to the Change in Control; provided,
that if the Company maintains directors’ and officers’ liability insurance
coverage for other current or former officers or directors of the Company
following such six-year period, Executive shall also be provided with such
insurance coverage.


 


13.                                 Confidentiality,
Covenant Not to Compete and Not to Solicit.


 


(i)                                     Nondisclosure
of Confidential Information. At no time during the term of Executive’s
employment or the 24 month period following the Executive’s Date of
Termination, shall Executive, without the prior written consent of the Company,
use, divulge, disclose or make accessible to any other person, firm,
partnership, corporation or other entity any Confidential Information
pertaining to the business of the Company or any of its affiliates, except (i) while
employed by the Company, in the business of and for the benefit of the Company,
or (ii) when required to do so by a court of competent
jurisdiction, by any governmental agency having supervisory authority over the
business of the Company, or by any administrative body or legislative body
(including a committee thereof) with jurisdiction to order Executive to
divulge, disclose or make accessible such information. For purposes of this Section 13,
“Confidential Information” shall mean any trade secret or other
non-public information concerning the financial data, strategic business plans,
product development (or other proprietary product data), customer lists,
marketing plans and other non-public, proprietary and confidential information
of the Company or its affiliates, that, in any case, is not otherwise available
to the public (other than by Executive’s breach of the terms hereof) or known
to persons in the industry generally.


 


17

















 


(ii)                                  Non Competition.
During the term of Executive’s employment and during the 12 month period
immediately following the date of any termination of Executive’s employment
with the Company, Executive shall not directly or indirectly become associated,
as an owner, partner, shareholder (other than as a holder of not in excess of
5% of the outstanding voting shares of any publicly traded company), director,
officer, manager, employee, agent, consultant or otherwise, with any
partnership, corporation or other entity that competes with the car or
equipment rental business, and for the customer base, of the Company or any of
its subsidiaries. This Section 13(ii) shall not be deemed to restrict
Executive’s association with any enterprise that conducts unrelated business or
that has material operations outside of the geographic area that encompasses
the Company’s customer base (or where the Company had plans at the Date of Termination
to enter) for so long as the Executive’s role whether direct or indirect (e.g.,
supervisory), is solely with respect to such unrelated business or other
geographic area (as the case may be).


 


(iii)                               Non Solicitation.
During the term of Executive’s employment and during the 12 month period
immediately following the date of any termination of Executive’s employment
with the Company, Executive shall not directly or indirectly employ or seek to
employ, or solicit or contact or cause others to solicit or contact with a view
to engage or employ, any person who is or was a managerial level employee of
the Company at the time of the Executive’s Date of Termination or at any time
during the twelve-month period preceding such date. This Section 13(iii) shall
not be deemed to be violated solely by (a) placing an advertisement
or other general solicitation or (b) serving as a reference.


 


(iv)                              Reasonableness. If
any provision of this Section 13 shall ever be deemed to exceed the time,
scope or geographic limitations permitted by applicable laws, then such
provisions shall be reformed to the maximum time, scope or geographic
limitations, as the case may be, permitted by applicable laws. Because
Executive’s services are unique and because Executive has had access to Confidential
Information, the parties hereto agree that money damages will be an inadequate
remedy for any breach of this Agreement. In the event of a breach or threatened
breach of this Agreement, the Company or its successors or assigns may, in
addition to other rights and remedies existing in their favor, stop making any
additional payments hereunder to Executive and apply to any court of competent
jurisdiction for specific performance and/or injunctive relief in order to
enforce, or prevent any violations of, the provisions hereof (without the
posting of a bond or other security).


 


14.                                 Amendment and
Waiver. The Company may amend this Agreement at any time and from time to
time; provided that any amendment that is adverse to the Executive shall
be effective only with respect to a Change in Control that occurs one year or
more following the date of such amendment. The provisions of this Agreement may
be waived only with the prior written consent of the Company and the Executive,
and no course of conduct or failure or delay in enforcing the provisions of
this Agreement shall 


 


18

















 


affect the validity, binding effect or
enforceability of this Agreement or any provision hereof.


 


15.                                 Entire Agreement.
No agreements or representations, oral or otherwise, express or implied, with
respect to the subject matter hereof have been made by either party which are
not expressly set forth in this Agreement. This Agreement constitutes the
entire understanding between the parties with respect to Executive’s severance
pay in the event of a termination of Executive’s employment with the Company,
superseding all negotiations, prior discussions and preliminary agreements,
written or oral, concerning said severance pay; provided, that any
payments or benefits provided in respect of severance, or indemnification for
loss of employment, pursuant to any severance, employment or similar agreement
between the Company or any of its subsidiaries and Executive, or as required by
applicable law outside the United States, shall reduce any payments or benefits
provided pursuant to this Agreement, except that the payments or benefits
provided pursuant to this Agreement shall not be reduced below zero. Notwithstanding
any provision of this Agreement:  (i) Executive
shall not be required to mitigate the amount of any payment provided by this
Agreement by seeking other employment or otherwise, nor (except as provided for
in Section 4(iv)(D) above) shall the amount of any payment or benefit
provided by this Agreement be reduced by any compensation earned by Executive
as the result of employment by another employer or by retirement benefits
received after the Date of Termination or otherwise, and (ii) except
as otherwise provided in this Agreement, the obligations of the Company to make
payments to Executive and to make the arrangements provided for herein are
absolute and unconditional and may not be reduced by any circumstances,
including without limitation any set-off, counterclaim, recoupment, defense or
other right which the Company may have against Executive or any third party at
any time.


 


19

















 


16.                                 Further Action.
The Company shall take any further action necessary or desirable to implement
the provisions of this Agreement or perform its obligations hereunder.


 


 


	
   

  	
  HERTZ GLOBAL HOLDINGS, INC.

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Name:

  
	
   

  	
   

  	
  Title:

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Executive

  
	
   

  	
   

  	
   

  
	
   

  	
  Date:

  	
   

  



 


20














 


Exhibit A


 


SEPARATION
AGREEMENT 




and 




GENERAL RELEASE OF ALL CLAIMS(1)


 


This
Separation Agreement and General Release of All Claims (the “Agreement”)
is entered into as of [·] by and among [·]
(the “Executive”), Hertz Global Holdings, Inc. and The Hertz
Corporation (hereinafter “Hertz” or the “Companies”), duly acting
under authority of their officers and directors.


 


WHEREAS,
Hertz Global Holdings, Inc. and the Executive have entered into a Change
in Control Severance Agreement, dated as of [·]
(the “Severance Agreement”);


 


WHEREAS,
Executive’s employment with Hertz will end effective as of [·];


 


WHEREAS,
in connection with Executive’s separation from employment, Executive is
entitled to certain payments and other benefits under the Severance Agreement,
so long as Executive executes and does not revoke this Agreement; and


 


WHEREAS,
the parties desire to fully and finally resolve any disputes, claims or
controversies that have arisen or may arise with respect to Executive’s
employment with and subsequent separation from the Companies.


 


NOW,
THEREFORE, in consideration of the mutual promises, covenants
and agreements stated herein and in the Severance Agreement, which Executive
and the 


 






	
  (1)

  	
  To be revised if
  necessary or appropriate under any applicable law to effect a complete and
  total release of claims by the Executive as of the effective date of the
  Agreement.

  



 


 

















 


Companies
agree constitute good and valuable consideration, receipt of which is
acknowledged, the parties stipulate and do mutually agree as follows:


 


1.             In
exchange for receiving the payments and benefits described in Sections 4 and 5
of the Severance Agreement, Executive does for himself and his heirs,
executors, administrators, successors, and assigns, hereby release, acquit, and
forever discharge and hold harmless the Companies and the divisions,
subsidiaries and affiliated companies of each of the Companies, the officers,
directors, shareholders, employees, benefit and retirement plans (as well as
trustees and administrators thereof), agents and heirs of each of the
foregoing, and the predecessors, assigns and successors, past and present of
each of the foregoing, and any persons, firms or corporations in privity with
any of them (collectively, the “Company Released Parties”), of and from
any and all actions, causes of action, claims, demands, attorneys’ fees,
compensation, expenses, promises, covenants, and damages of whatever kind or
nature, in law or in equity, which Executive has, had or could have asserted,
known or unknown, at common law or under any statute, rule, regulation, order
or law, whether federal, state or local, or on any grounds whatsoever from the
beginning of the world to the date of execution of this Agreement, including,
without limitation, (1) any and all claims for any additional
severance pay, vacation pay, bonus or other compensation; (2) any
and all claims of discrimination or harassment based on race, color, national
origin, ancestry, religion, marital status, sex, sexual orientation,
disability, handicap, age or other unlawful discrimination; any claims arising
under Title VII of the Federal Civil Rights Act; the Federal Civil Rights Act
of 


 


22

















 


1991; the Americans with Disabilities Act; the Age
Discrimination in Employment Act; the New Jersey Law Against Discrimination; or
under any other state, federal, local law or regulation or under the common
law; and (3) any and all claims with respect to any event, matter,
damage or injury arising out of his employment relationship with any Company
Released Party, and/or the separation of such employment relationship, and/or
with respect to any other event or matter.


 


The
only exceptions to this Separation Agreement and General Release of All Claims
are with respect to retirement benefits which may have accrued and vested as of
the date of Executive’s employment termination, COBRA rights, enforcement of
Executive’s rights under this Agreement and the Severance Agreement, and any
claims under applicable workers’ compensation laws.


 


Nothing
in this Agreement shall be construed to prohibit Executive from filing any
future charge or complaint with the U.S. Equal Employment Opportunity
Commission (the “EEOC”) or participating in any investigation or
proceeding conducted by the EEOC, nor shall any provision of this Agreement
adversely affect Executive’s right to engage in such conduct. Notwithstanding
the foregoing, Executive waives the right to obtain any relief from the EEOC or
recover any monies or compensation as a result of filing a charge or complaint.
In addition to agreeing herein not to bring suit against any Company Released
Party, Executive agrees not to seek damages from any Company Released Party by
filing a claim or charge with any state or governmental agency.


 


23

















 


2.             Executive
shall return to the Companies all Company property and Confidential Information
(as defined in the Severance Agreement) of any Company Released Party in
Executive’s possession or control, including without limitation, business
reports and records, client reports and records, customer information,
personally identifiable information relating to others, business strategies,
contracts and proposals, files, a listing of customers or clients, lists of potential
customers or clients, technical data, testing or research data, research and
development projects, business plans, financial plans, internal memoranda
concerning any of the above, and all credit cards, cardkey passes, door and
file keys, computer access codes, software, and other physical or personal
property which Executive received, had access to or had in his possession,
prepared or helped prepare in connection with Executive’s employment with any
Company Released Party, and Executive shall not make or retain any copies,
duplicates, reproductions, or excerpts thereof. Executive acknowledges that in
the course of employment with any one or more Company Released Party, Executive
has acquired Confidential Information and that such Confidential Information
has been disclosed to Executive in confidence and for his use only during and
with respect to his employment with one or more of the Company Released
Parties.


 


3.             Executive
acknowledges and agrees that he has agreed to be bound by the confidentiality provision
in the Severance Agreement for 24 months following Executive’s separation of
employment and the non-competition and non-solicitation 


 


24

















 


covenants in the Severance Agreement for 12 months
following Executive’s separation of employment.


 


4.             Executive
declares and represents that he has not filed or otherwise pursued any charges,
complaints, lawsuits or claims of any nature against any Company Released Party
arising out of or relating to events occurring prior to the date of this
Agreement, with any federal, state or local governmental agency or court with
respect to any matter covered by this Agreement. In addition to agreeing herein
not to bring suit against any Company Released Party, Executive agrees not to
seek damages from any Company Released Party by filing a claim or charge with
any state or governmental agency.


 


5.             Executive
further declares and represents that no promise, inducement, or agreement not
herein expressed has been made to him, that this Agreement contains the entire
agreement between the parties hereto, and that the terms of this Agreement are
contractual and not a mere recital.


 


6.             Executive
understands and agrees that this Agreement shall not be considered an admission
of liability or wrongdoing by any party hereto, and each of the parties denies
any liability and agrees that nothing in this Agreement can or shall be used by
or against either party with respect to claims, defenses or issues in any
litigation or proceeding except to enforce rights under the Agreement itself or
under the Severance Agreement.


 


25

















 


7.             Executive
understands and agrees that should any provision of this Agreement be declared
or be determined by any court to be illegal or invalid, the validity of the
remaining parts, terms or provisions shall not be affected thereby, and said
invalid part, term, or provision shall be deemed not a part of this Agreement.


 


8.             Executive
acknowledges that he understands that he has the right to consult with an
attorney of his choice at his expense to review this Agreement and has been
encouraged by the Companies to do so.


 


9.             Executive
further acknowledges that he has been provided twenty-one days to consider and
accept this Agreement from the date it was first given to him, although
Executive may accept it at any time within those twenty-one days.


 


10.           Executive
further understands that he has seven days after signing the Agreement to
revoke it by delivering to the Senior Vice President, Chief Human Resource
Officer, The Hertz Corporation, 225 Brae Boulevard, Park Ridge, New Jersey
07656, written notification of such revocation within the seven day period. If
Executive does not revoke the Agreement, the Agreement will become effective
and irrevocable by him on the eighth day after he signs it.


 


11.           Executive
acknowledges that this Agreement sets forth the entire agreement between the
parties with respect to the subject matters hereof and supersedes any and all
prior agreements between the parties as to such matters, be they oral or in
writing, and may not be changed, modified, or rescinded except in writing
signed by all 


 


26

















 


parties hereto, and any attempt at oral modification
of this Agreement shall be void and of no force or effect.


 


12.           Executive
acknowledges that he has carefully read this Agreement and understands all of
its terms, including the full and final release of claims set forth above and
enters into it voluntarily.


 


WITH EXECUTIVE’S
SIGNATURE HEREUNDER, EXECUTIVE ACKNOWLEDGES THAT EXECUTIVE HAS CAREFULLY READ
THIS AGREEMENT AND UNDERSTANDS ALL OF ITS TERMS INCLUDING THE FULL AND FINAL
RELEASE OF CLAIMS SET FORTH ABOVE. EXECUTIVE FURTHER ACKNOWLEDGES THAT
EXECUTIVE HAS VOLUNTARILY ENTERED INTO THIS AGREEMENT; THAT EXECUTIVE HAS NOT
RELIED UPON ANY REPRESENTATION OR STATEMENT, WRITTEN OR UNWRITTEN, NOT SET
FORTH IN THIS AGREEMENT; THAT EXECUTIVE HAS BEEN GIVEN THE OPPORTUNITY TO HAVE
THIS AGREEMENT REVIEWED BY HIS ATTORNEY; AND THAT EXECUTIVE HAS BEEN ENCOURAGED
BY THE COMPANIES TO DO SO.


 


EXECUTIVE
ALSO ACKNOWLEDGES THAT EXECUTIVE HAS BEEN AFFORDED 21 DAYS TO CONSIDER THIS
AGREEMENT AND THAT EXECUTIVE HAS 7 DAYS AFTER SIGNING THIS AGREEMENT TO REVOKE
IT BY DELIVERING TO THE SENIOR VICE PRESIDENT, CHIEF HUMAN RESOURCES OFFICER,
AS SET FORTH ABOVE, WRITTEN NOTIFICATION OF EXECUTIVE’S REVOCATION.


 


IN WITNESS WHEREOF, the parties have caused this
Agreement to be duly executed as of the date set forth above.


 


27

















 


	
   

  	
   

  	
  Date:

  
	
  EXECUTIVE

  	
   

  
	
   

  	
   

  
	
  THE HERTZ
  CORPORATION

  	
  HERTZ GLOBAL
  HOLDINGS, INC.

  
	
   

  	
   

  
	
  By: 

  	
   

  	
   

  	
  By: 

  	
   

  
	
  Date:

  	
  Date:

  
					



 


28