Exhibit 10.37
RELEASE AND SEPARATION AGREEMENT
This Release and Separation Agreement (hereinafter referred to as
"Agreement") is made and entered into by and between Xxxxxxx X. Xxxx, Xx., a
resident of Tennessee, his agents, representatives, attorneys, assigns,
heirs, executors and administrators (hereinafter collectively referred to as
"Xxxx"), and HILTON HOTELS CORPORATION, its predecessors, successors,
subsidiaries, divisions, affiliates, representatives, attorneys, directors,
officers, trustees, agents and employees (hereinafter collectively referred
to as "Hilton").
In consideration of the moneys, mutual promises and covenants herein
contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
I. RESIGNATION OF EMPLOYMENT
Xxxx agrees to resign his employment with Hilton effective February 1,
1997.
II. PAYMENT OF VACATION DAYS
Hilton will pay to Xxxx a sum equal to the amount representing all
accrued and unused vacation days due to Xxxx as of January 31, 1997, subject
to the maximum number of days set forth in Hilton's Vacation policy.
III. AUTOMOBILE
Ownership of that certain automobile described as a 1992 Range Rover,
vehicle identification number XXXXX0000XX000000, will be forthwith
transferred from Hilton to Xxxx, and Xxxx agrees to be responsible for all
maintenance, operating expenses, and insurance coverage thereof as of
February 28, 1997. Xxxx agrees to pay any and all applicable taxes due on the
remaining unamortized residual value of the vehicle.
IV. VALUABLE CONSIDERATION OF RELEASE
(a) If Xxxx signs and does not revoke this Agreement, in consideration of
the promises made by the parties herein, Hilton will pay Xxxx, a
lump sum in the amount of Eight Hundred Seventy-One Thousand Six
Hundred dollars ($871,600), subject to legally required withholding
deductions, which amount shall be paid to Xxxx on or before
February 28, 1997.
(b) Hilton and Xxxx agree that Xxxx'x right to continue medical and
dental coverage under the Hilton Group Benefit Plan as provided by
COBRA shall begin on February 1, 1997. Hilton further agrees to
reimburse Xxxx for his COBRA medical and dental premiums for a
period beginning February 1, 1997 and continuing until the earlier
of (i) July 31, 1998, or (ii) Xxxx becomes eligible to receive
medical and dental benefits under another employer-sponsored health
benefits plan. Xxxx'x participation in all Hilton benefit plans and
programs, including but not limited to, medical, dental and other
benefits under the Hilton Group Benefits Plans, the Hilton Thrift
Plan, Stock Purchase Plan, Executive Deferred Compensation Plan,
Hilton's Stock Option Plan, and vacation accrual will terminate
effective February 1, 1997; provided however, that commencing as of
Xxxx'x 65th birthday, Xxxx shall be eligible to receive those
benefits to which he is entitled under Hilton's qualified pension
plan, its Retirement Benefit Replacement Plan and its Supplemental
Executive Retirement Plans.
(c) The foregoing payment and other benefits are in full, final and
complete settlement of any and all claims, actions, damages,
attorney's fees, and/or costs which may now or hereinafter exist
against Hilton arising out of or relating to Xxxx'x employment with
and/or resignation from Hilton. Xxxx agrees that the moneys and
other benefits described above are above and beyond consideration
to which he would otherwise have been entitled and that this
consideration constitutes extra payment in exchange for signing
this Agreement.
V. RELEASE OF ALL CLAIMS
By signing this Agreement and receiving the valuable consideration
described above, subject to the provisions of paragraph VI, Xxxx hereby
releases and discharges the Hilton Indemnities/Releases, and Hilton hereby
releases and discharges the Xxxx Indemnities/Releases from any and all
actions, complaints, causes of action, grievances, claims, damages,
obligations, debts, promises, losses, demands, wages, bonuses, benefits,
actual damages, compensatory damages, severance pay, mental anguish, pain,
humiliation, emotional distress, exemplary and/or punitive damages, statutory
penalties, and/or any other liabilities of any kind which have been or could
be asserted against the Hilton
Indemnities/Releases or the Xxxx Indemnities/Releases, respectively, arising
out of or relating in any way to Xxxx'x employment with and/or resignation of
employment from Hilton, and/or any other occurrence through January 31, 1997,
whether presently asserted or otherwise, including but not limited to:
(a) claims, demands, actions or liability arising under the Age
Discrimination in Employment Act, Title VII of the Civil Rights Act
of 1964, as amended, the Civil Rights Act of 1991, the Americans
With Disabilities Act, the Family and Medical Leave Act, the
Employee Retirement Income Security Act, the Rehabilitation Act of
1973, the California Fair Employment and Housing Act and/or any
other federal, state or local statute, ordinance or regulation
(including but not limited to claims based on race, age, sex,
sexual preference, marital status, religion, national origin,
disability, retaliation, attainment of benefit plan rights and
veteran status); and/or
(b) claims, demands, actions or liability on the basis of any common
law, tort, contract, implied contract, breach of implied covenant
of good faith and fair dealing, public policy, wrongful or
retaliatory discharge, defamation, intentional infliction of
emotional distress, negligence; and/or
(c) claims, demands, actions or liability relating to any Hilton Bonus
Plans; and/or
(d) any other common law, statutory or other claim whatsoever arising
out of or relating to Xxxx'x employment with and/or resignation of
employment from Hilton and/or any other occurrence up to and
including the date of this Agreement, except such claims which by
law cannot be waived and the filing of an administrative charge.
For the purpose of implementing a full and complete release and
discharge of all parties, Xxxx and Hilton each expressly acknowledge that this
Agreement is also intended to include in its effect, without limitation, all
claims which it or he does not know or expect to exist in its or his favor
relating to the period ending January 31, 1997, and the parties agree that
this Agreement contemplates the extinguishment of any such claim, or claims.
In this connection, Xxxx and Hilton each expressly waive and relinquish all
rights and benefits afforded by Section 1542 of the Civil Code of California
and do so understanding and acknowledging the significance and consequences
of such specific waiver of said provisions of law. Section 1542 of the Civil
Code of California states as follows:
"A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE
WHICH, IF KNOWN BY HIM, MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH
THE DEBTOR."
In the event either party breaches this Agreement by suing the other in
violation of this paragraph, such party shall be required to pay the other's
litigation costs (including its reasonable attorney's fees and costs)
associated with defending against such party's lawsuit or other claim.
VI. CONFIDENTIALITY AND NON-DISPARAGEMENT
Hilton and Xxxx agree that, as a condition of this Agreement, the fact
of and terms and provisions of this Agreement are to remain strictly
confidential and shall not be disclosed to any other person except to members
of Xxxx'x immediate family and his tax advisors or to gaming authorities and
as required by law or the rules of any stock exchange on which Hilton's stock
is listed. In the event a third party seeks a copy of this agreement,
pursuant to court order or subpoena, Xxxx agrees that he will inform Hilton
within forty-eight (48 hours) of receipt of such court order or subpoena and
will not produce the Agreement until Hilton has been given an opportunity to
move to quash such subpoena. Xxxx further agrees that he will make no
negative or disparaging statements, either written or oral, regarding Hilton,
provided however, that statements made by Xxxx under oath during the course
of legal or administrative proceedings shall not be considered to violate
this provision. Likewise, Hilton agrees that it will make no negative or
disparaging statements, either written or oral, regarding Xxxx. This
paragraph will survive the termination or expiration of this Agreement,
except that either party shall be relieved of his/its respective obligation
hereunder in the event of a breach by the other.
VII. COOPERATION
Xxxx agrees to cooperate on a reasonable basis with Hilton Hotels
Corporation or any of the other Releases in any litigation or administrative
proceedings involving any matters with which Xxxx was involved during his
Hilton employment. Hilton agrees to reimburse Xxxx for reasonable travel
expenses, if any, approved by Hilton or any of the other Releases incurred in
providing such assistance. Xxxx'x obligations under this paragraph are
subject to the following:
(a) that no reasonably foreseeable negative effect to Xxxx'x
employment, if he be then employed, will result; and
(b) that Hilton Hotels Corporation and Xxxx agree to reasonable
compensation for time devoted by Xxxx in carrying out his obligations
hereunder. In determining "reasonable compensation" as used in this
paragraph, the parties agree that compensation being paid to Xxxx by his
employer, if he be then employed, will be taken into account; and
(c) that Xxxx shall be entitled to (i) indemnification in respect of
such litigation or administrative proceedings or any other claims relating to
the period ending January 31, 1997, as though Xxxx were still an employee of
Hilton, and (ii) at Hilton's expense, legal counsel deemed necessary by Xxxx
and preapproved by Hilton with respect to such litigation, administrative
proceedings or claims.
VIII. ENTIRE AGREEMENT AND SEVERABILITY
Hilton and Xxxx agree that this Agreement sets forth the entire
agreement between the parties and supersedes any written or oral
understandings, other than those set forth in Hilton's retirement plans, on
which Xxxx is relying in entering into this agreement. Other than as stated
herein, Hilton and Xxxx acknowledge and agree that no promise or inducement
has been offered for the Agreement and no other promises or agreements shall
be binding unless reduced to writing and signed by the parties.
Hilton and Xxxx agree that, to the extent that any portion or covenant
of this Agreement may be held to be invalid or legally unenforceable by a
court of competent jurisdiction, the remaining portions of this Agreement
shall not be affected and shall be given full force and effect. This
Agreement shall survive a change of control, a division of operating units
into separate entities, a merger, or any other substantial reorganization of
Hilton.
IX. KNOWING AND VOLUNTARY RELEASE
(a) Xxxx hereby acknowledges and agrees that Hilton has advised him to
consult with an attorney regarding the subject matter of this Release and
Separation Agreement prior to executing this Agreement.
(b) Xxxx further acknowledges and agrees that he has been given at
least twenty-one (21) days from the date he receives the Agreement within
which to consider this Agreement before signing below. Xxxx acknowledges that
he has read this Agreement and the release contained herein and understands
all of the terms hereof, that he has not been coerced, threatened or
intimidated into signing this Agreement, and that he executes this Agreement
voluntarily and with full knowledge of this meaning and consequences.
(c) Xxxx agrees and understands that he may revoke this Agreement
within seven (7) days after he signs the Agreement and that the Agreement
shall not become effective or enforceable until eight (8) days after the date
on which Xxxx signs the Agreement. Any revocation must be in writing and
directed to Xxxxx X. Xxxxxxxx.
HILTON HOTELS CORPORATION
/s/ Xxxxxxx X. Xxxx, Xx. By /s/ Xxxxx X. Xxxxxxxx
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Xxxxxxx X. Xxxx, Xx.
Xxxxx X. Xxxxxxxx
Senior Vice President
Date: 2/18/97 Labor Relations & Personnel Administration
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Date: 2/19/97
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