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EXHIBIT 10.26
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CONSULTING AGREEMENT
This Consulting Agreement (this "Agreement") is made and entered into
as of January 1, 1999, by and between Promus Hotel Corporation, a Delaware
corporation ("Promus"), and Xxxxx Xxxxxxxxx ("Xxxxxxxxx").
Introduction. Promus and Xxxxxxxxx desire to enter into a consulting
arrangement whereby Promus will retain Xxxxxxxxx to provide consulting services
relating to the business of Promus and its subsidiaries (the "Promus Business")
for a certain period of time. Accordingly, for certain good and valuable
consideration, the receipt and adequacy of which are hereby acknowledged, Promus
and Xxxxxxxxx hereby agree as follows:
1. Appointment and Acceptance. During the Term (as defined herein),
and on the terms and subject to the conditions set forth herein, Promus hereby
appoints, engages and retains Xxxxxxxxx as a consultant for the Promus Business,
and Xxxxxxxxx hereby accepts such appointment.
2. Consulting Services. Xxxxxxxxx shall perform such consulting
services for Promus relating to the Promus Business as solely directed by Xxxxxx
Xxxxx, Chief Executive Officer of Promus. The consulting services shall include,
without limitation, (a) advice and consultation regarding potential acquisitions
to include identification of acquisition targets, and (b) provide liaison
services to interested parties with respect to acquisitions. Xxxxxxxxx shall at
all times comply fully with all applicable laws, ordinances, rules and
regulations in performing consulting services hereunder.
3. Term. Subject to termination in accordance with Section 5 hereof,
the term of this Agreement (the "Term") shall begin on January 1, 1999, and
shall end on December 31, 1999.
4. Compensation.
(a). Consulting Fee. As compensation for the consulting
services performed by Xxxxxxxxx under this Agreement, Promus
shall (a) pay to Xxxxxxxxx a consulting fee in the amount of
$75,000 per quarter minus any amounts Xxxxxxxxx receives as
fees or other compensation for his services as a member of the
Board of Directors of Promus in any form. Promus shall not
reimburse Xxxxxxxxx for costs and expenses incurred in
performing the consulting services hereunder. There shall be
no other compensation of any kind or nature payable by Promus
to Xxxxxxxxx in consideration of the consulting services
performed hereunder.
(b) Income Tax Reporting. Promus shall file annually an
Internal Revenue Service form 1099 for compensation rendered
to Xxxxxxxxx for services performed hereunder. Xxxxxxxxx shall
be responsible for filing all other required state or federal
income and self-employment tax returns with respect to the
compensation paid to Xxxxxxxxx under this Agreement. Promus
shall not make income tax deductions or withholdings from
payments made to Xxxxxxxxx, and Xxxxxxxxx shall be responsible
for the payment of all income taxes.
(c) Employment Benefits. As an independent contractor,
Xxxxxxxxx is not eligible for any employment benefits offered
by Promus, including participation in
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any insurance, disability, vacation, pension, retirement or
other plans offered by Promus.
5. Termination. This Agreement and the rights and obligations of Promus
and Xxxxxxxxx hereunder may be terminated prior to the expiration of the Term by
either party upon thirty (30) days written notice to the other party.
6. Miscellaneous Provisions.
A. Independent Contractor. The parties hereto are independent
contractors, and nothing contained herein shall be construed as appointing
Xxxxxxxxx an employee of Promus. Except as otherwise provided in Section 2
hereof, Promus shall have no control over or supervisory power as to the manner
or method of performance by Xxxxxxxxx of the consulting services hereunder.
B. Notices and Other Communications. All notices, demands,
requests and other communications given hereunder shall be made in writing and
shall be delivered in person or by certified mail (postage prepaid and return
receipt requested), courier or overnight delivery service (delivery charge
prepaid), or telecopy. Any notice, demand, request or other communication shall
be effective only if and when it is received by the addressee. For the purposes
hereof, the addresses and telephone and telecopier numbers of Promus and
Xxxxxxxxx are as follows:
Promus: Promus Hotel Corporation Xxxxxxxxx: Xxxxx Xxxxxxxxx
000 Xxxxxxxxx Xxxx The Contrarian Group
Xxxxxxx, Xxxxxxxxx 00000 0000 Xxxxxxxxx Xxxxxx
Attention: Chief Executive Officer Xxxxxxx Xxxxx, XX 00000
Telephone: (000) 000-0000 Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Any party hereto may change its address or telephone or telecopier number for
the purposes hereof by notifying the other party thereof in the manner provided
herein.
C. Entire Agreement. This Agreement constitutes the full
understanding of the parties, a complete allocation of (risks between them, and
a complete and exclusive statement of the terms and conditions of their
agreement relating to the subject matter hereof and supersedes any and all prior
negotiations, understandings and agreements, whether written or oral, between
the parties. Except as otherwise specifically provided in this Agreement, no
term, condition, usage of trade, course of dealing or performance, understanding
or agreement purporting to modify, vary, explain or supplement the provisions of
this Agreement shall be effective or binding on the parties, unless the same
hereafter is effected in accordance with Section 6.D hereof.
D. Amendments. This Agreement may be altered, modified, amended
or changed (other than any waiver of any provision hereof, which shall be
effective only if made in accordance with Section 6.E hereof) in any manner, but
only by a written agreement executed and delivered by all parties.
E. Waivers. No waiver by any party of any breach of the
covenants set forth herein or any right or remedy provided hereunder and no
course of dealing shall be deemed a
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waiver of the same or any other breach, right or remedy, unless such waiver is
in writing and is signed by the party sought to be bound. The failure of a
party to exercise any right or remedy shall not be deemed a waiver of such
right or remedy in the future.
F. Enforceability. This Agreement shall be enforceable by and
against Promus and Xxxxxxxxx and their respective successors, permitted
assignees, heirs and legal representatives.
G. Assignment. This Agreement contemplates the provision of
skills of a personal nature, and accordingly Xxxxxxxxx may not assign, convey,
or transfer any obligations of this Agreement. Promus may not assign, convey,
transfer or otherwise dispose of its interest in, or its rights and
obligations under, this Agreement without the prior written consent of
Xxxxxxxxx, which consent shall not be unreasonably withheld or delayed. Any
assignment, conveyance, transfer or other disposition made or attempted in
violation of this Section 6.G shall be void and of no force or effect.
H. Remedies. In the event of a breach by a party hereto of any
covenant contained in this Agreement, the other party shall be entitled to
equitable relief (including, without limitation, specific performance of such
covenant), in addition to any and all other remedies to which such party may
be entitled hereunder or by law. Any party's full or partial exercise of any
remedy shall not preclude any subsequent exercise by such party of the same or
any other remedy.
I. Governing Law. This Agreement shall be governed by,
construed under, and enforced in accordance with the laws of the state of
Tennessee without reference to the conflict-of-laws provisions thereof.
This Agreement is executed and delivered by Promus and Xxxxxxxxx as of
the date first set forth above.
PROMUS HOTEL CORPORATION
/s/ Xxxxx Xxxxxxxxx By: /s/ Xxxxxx X. Xxxxx
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Xxxxx Xxxxxxxxx Name: Xxxxxx X. Xxxxx
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Title: Chief & CEO
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