SEPARATION AND RELEASE AGREEMENT
THIS SEPARATION AND RELEASE AGREEMENT (the “Agreement”) is made as of this 21st day of May, 2018, effective as of the 2nd day of January, 2018 (the date on which the Agreement was first provided to the Executive (as defined below)), by Wyndham Worldwide Corporation, a Delaware corporation (the “Company”), and Gail Mandel (the “Executive”).
WHEREAS, the Executive serves as the President and Chief Executive Officer of the Company’s exchange and rentals business, Wyndham Destination Network (“WDN”);
WHEREAS, the Executive and the Company are signatories to an employment agreement dated November 13, 2014 (“Original Employment Agreement”) and an amendment to the Employment Agreement dated August 2, 2017 (“Amendment No. 1”) (Original Employment Agreement and Amendment No. 1, collectively, the “Employment Agreement”); and
WHEREAS, the Company and the Executive have mutually agreed to end their employment relationship under the terms and conditions set forth exclusively in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, representations and warranties set forth herein, and for other good and valuable consideration, the Executive and the Company agree as follows:
Section 1 Cessation of Employment Relationship.
Effective as of the first to occur between (a) the closing of the previously announced spin off of the Company’s hotel business from the Company, which involves the distribution of all of the outstanding shares of the entity that holds the Company’s hotel business (following an internal reorganization of the Company’s businesses) on a pro rata basis to the holders of common stock of the Company (the “Transaction”), and (b) the date on which the Company publicly announces its decision not to proceed with the Transaction (the “Transaction Termination”), the Executive’s employment with the Company and its affiliates will automatically terminate without the need for any further action by the Company, the Executive or any other party (the date on which the conditions in either clause (a) or clause (b) are met, the “Separation Date”).
The Executive shall, up through the Separation Date, continue to serve as Chief Executive Officer of WDN. Effective as of the Separation Date, the Executive hereby resigns from all positions, offices and directorships with the Company and any affiliate and subsidiary of the Company, as well as from any positions, offices and directorships on the Company’s and its affiliates’ and subsidiaries’ foundations, benefits plans and programs.
Section 2 Payment Obligations.
2.1 Payment for Accrued Salary, Benefits, Etc. From the date of this Agreement until the Separation Date, the Executive shall continue to be compensated in the amount of her current Base Salary (as defined in Section IV(a) of the Employment Agreement) of six hundred thirty thousand dollars ($630,000), and within 30 days of the Separation Date, the Company shall pay
to the Executive any earned but unpaid Base Salary through the Separation Date. All payments shall be made to Executive less all applicable taxes, deductions and other withholdings.
The Executive will also receive payment of any reasonable unreimbursed business expenses incurred prior to the Separation Date, pursuant to the Company’s Travel and Entertainment Expense Reimbursement Policy that is in effect on the Separation Date, within 60 days following the Separation Date, provided that the Executive submits within 10 business days after the Separation Date all appropriate supporting documentation necessary for the reimbursement of any business expenses.
Finally, until the Separation Date, all of the Executive’s time-based restricted stock units (“RSUs”) and performance-based restricted stock units (“PVRSUs”) outstanding as of the date of this Agreement will continue to vest and be settled (net of shares of Company common stock withheld to satisfy applicable withholding taxes) in accordance with their existing terms and conditions.
2.2 Severance. The Company and the Executive agree that the Executive’s separation from employment with the Company will be treated as a “Without Cause Termination” pursuant to the Employment Agreement; provided that the Executive’s employment is not terminated prior to the Separation Date due to a “Termination for Cause” (as defined in the Employment Agreement), in accordance with the terms of the Employment Agreement. Accordingly,
(a) the Company shall pay the Executive an aggregate cash severance amount equal to two million five hundred twenty thousand dollars ($2,520,000), payable in a lump sum within 60 days after the Separation Date, subject to Sections 2.5, 2.6 and 4.6 below;
(b) effective as of the Separation Date, and subject to Sections 2.5, 2.6 and 4.6 below, the Executive’s outstanding incentive equity awards shall be treated as set forth below:
(i) If the Transaction Termination triggers the Separation Date, then the Executive’s RSUs and PVRSUs (each as defined below) will vest as follows:
1. To the extent not previously vested in accordance with their existing terms and conditions, all of the Executive’s outstanding RSUs which would have otherwise vested within one year following the Separation Date (being 20,882 RSUs if the Separation Date occurs on or before December 31, 2018) will accelerate and vest as of the Separation Date and be settled in shares of Company common stock, which will be delivered to the Executive within 60 days after the Separation Date, net of shares of Company common stock withheld to satisfy applicable withholding taxes; and
2. To the extent not previously vested in accordance with their existing terms and conditions, with respect to the Executive’s outstanding PVRSUs, all or a portion of the of the PVRSUs (if any) for the performance period from January 1, 2016 through December 31, 2018 (being 14,654 PVRSUs) and for the performance period from January 1, 2017 through December 31, 2019 (being 16,218 PVRSUs), to the extent that the performance goals applicable to such PVRSUs are achieved, in each case as certified by the Compensation Committee of the Company’s Board of Directors (the “Compensation Committee”) following the completion of each such performance period, the Executive shall be entitled to vest in and be paid a pro-rata portion of such achieved PVRSUs, if any, in accordance with the terms of such PVRSUs, such pro-rata portion to be determined based upon the portion of the full performance period applicable to each particular PVRSU award during which the Executive was employed by the Company up to the Separation Date plus 12 months (or, if less, assuming employment for the entire performance period). Any such vested PVRSUs shall be settled in shares of Company common stock, which will be delivered to the Executive in accordance with the terms of the applicable PVRSU award agreements, subject to Sections 2.5, 2.6 and 4.6 below, net of shares of Company common stock withheld to satisfy applicable withholding taxes. For the avoidance of doubt, the Executive’s PVRSUs for the performance period from January 1, 2015 through December 31, 2017 vested as of March 1, 2018 in accordance with their terms. Except as set forth above in this subsection (b)(i)(2), the Executive’s then-outstanding PVRSUs shall not otherwise vest or accelerate and to the extent not so vested pursuant to this subsection (b)(i)(2), such PVRSUs shall terminate and be forfeited;
(ii) If the completion of the Transaction triggers the Separation Date, then the Executive’s RSUs and PVRSUs will vest as follows:
1. To the extent not previously vested in accordance with their existing terms and conditions, all of the Executive’s outstanding RSUs (being 44,428 RSUs as of March 1, 2018) will accelerate and vest upon completion of the Transaction, with settlement as provided by the terms associated with the completion of the Transaction (“Vesting Plan”), net of shares of Company common stock withheld to satisfy applicable withholding taxes; and
2. To the extent not previously vested in accordance with their existing terms and conditions, all or a portion of the Executive’s PVRSUs (if any) for the performance period from January 1, 2016 through December 31, 2018 (being 14,654 PVRSUs) and the Executive’s PVRSUs for the performance period from January 1,
2017 through December 31, 2019 (being 16,218 PVRSUs), will vest upon completion of the Transaction, to the extent that the performance goals applicable to such PVRSUs are certified as achieved by the Compensation Committee following the completion of each such performance period, with settlement pursuant to the Vesting Plan. The Executive’s PVRSUs shall be settled in shares of Company common stock, net of shares withheld to satisfy applicable withholding taxes. For the avoidance of doubt, the Executive’s PVRSUs for the performance period from January 1, 2015 through December 31, 2017 vested as of March 1, 2018 in accordance with their terms.
The Executive has no other outstanding Company incentive awards, equity awards or equity rights, except as set forth in (x) subsection (b) above, (y) subsection (j) below and (z) Section 2.3 below, in each case, to the extent applicable. For the avoidance of doubt, Executive is not entitled to any future Company incentive awards or equity rights that may otherwise be provided to officers or employees of the Company after the date of this Agreement.
(c) The Executive shall continue to be eligible to participate in the Company’s Officer Deferred Compensation Plan and 401(k) Plan up to and including the Separation Date, in accordance with the terms thereof.
(d) The Executive shall continue to participate in the health plans in which she currently participates through the end of the month in which the Separation Date occurs. Following the Separation Date, the Executive may elect to continue medical, dental and vision plan coverage in accordance with the provisions of the Consolidated Omnibus Budget Reconciliation Act at her own expense.
(e) [Intentionally omitted].
(f) To the extent the Executive would otherwise be entitled as an executive of the Company to participate in the Company’s executive health physical program, such entitlement will be provided to the Executive through December 31, 2018.
(g) The Executive shall be eligible to continue to use the vehicle provided to her through the Company’s executive car lease program in which she currently participates, upon the same terms as currently are in effect for her, through and until the Separation Date. At that time, the Executive shall have the option to purchase the vehicle in accordance with the terms of such program for use, at her own expense. If the Executive chooses not to purchase the vehicle, the Executive shall relinquish the vehicle to the Company’s Human Resources Department on or before the Separation Date.
(h) The Executive shall be entitled to outplacement services rendered by a company selected by the Company, provided the services are utilized no later than 12 months following the Separation Date.
(i) The Executive may continue to use the financial services provided through AYCO Company through the 2018 tax season ending on October 15, 2019.
(j) The Executive will receive a lump sum cash payment, payable within 60 days after the Separation Date, in an amount equal to the product of (i) the Executive’s target Incentive Compensation Award for calendar year 2018 (equal to $630,000), multiplied by (ii) a fraction, the numerator of which is the number of business and non-business days in calendar year 2018 prior to the Separation Date and the denominator of which is 365. By way of example only, if the number of business and non-business days in calendar year 2018 prior to the Executive’s Separation Date is 152, the payment provided herein will be $262,356.16. The payment set forth herein is subject to Sections 2.5, 2.6 and 4.6 below.
Notwithstanding any other provision of this Agreement or the Employment Agreement, all payments to, vesting, benefits, and other rights of the Executive under this Section 2.2 shall be subject to Sections 2.5, 2.6 and 4.6 of this Agreement. In addition, and without limitation of its rights at law or in equity, the Company reserves the right to suspend any payments to, vesting, benefits and other rights of the Executive if the Company has a commercially reasonable belief that the Executive is in breach of any of the covenants contained in the Employment Agreement, including but not limited to Section VII therein, and/or Section 3 of this Agreement, or otherwise is in breach of any representation, affirmation or acknowledgement made by Executive under this Agreement, or the Executive Release as defined in Section 2.6 and attached hereto as Exhibit A.
Except as provided in this Section 2.2 and, for the sake of clarity, Section 2.3, Executive acknowledges and agrees that she is not entitled to any other severance benefits under any other severance plan, arrangement, agreement or program of the Company or its affiliates.
2.3 European Rentals Sale. The Executive will receive an additional cash payment in connection with the sale of WDN’s European rentals business in the amount of one million seven hundred and fifty thousand dollars ($1,750,000) (the “Sales Incentive”). The Sales Incentive will be paid, less all applicable deductions and withholding, on the 60th day following the Separation Date.
2.4 Other Benefits. Following the Separation Date, the Executive will be paid any vested and accrued but not yet paid amounts due under the terms and conditions of any other employee pension benefits in accordance with the terms of such plan and applicable law.
2.5 Code Section 409A. On the Separation Date, the Executive is deemed to be a “specified employee” within the meaning of that term under Section 409A(a)(2)(B) of the Internal Revenue Code (“Code”); as a result, and notwithstanding any other provision of this Agreement or the Employment Agreement,
(i) with regard to any payment, the providing of any benefit or any distribution of equity under this Agreement that constitutes “deferred compensation” subject to Code Section 409A, payable upon separation from service, such payment, benefit or distribution shall not be made or provided prior to the
earlier of (x) the expiration of the six-month period measured from the date of the Separation Date (or, if later, her “separation from service” as referred to in Code Section 409A) (as applicable, “409A Separation Date”) or (y) the date of the Executive’s death; and
(ii) on the first day of the seventh month following the date of the 409A Separation Date or, if earlier, on the date of death, (x) all payments delayed pursuant to Section 2.5(i) shall be paid or reimbursed to the Executive in a lump sum, and any remaining payments and benefits due under this Agreement shall be paid or provided in accordance with the normal dates specified for them herein and (y) all distributions of equity delayed pursuant to Section 2.5(i) shall be made to the Executive;
provided that, without limitation, the lump sum cash severance payment payable to the Executive under Section 2.2(a) above, the vesting of the RSUs and PVRSUs under Section 2.2(b) above, and the Sales Incentive payment payable to the Executive under Section 2.3 above are each intended to qualify as a short-term deferral under Treasury Regulation Section 1.409A-1(b)(4) and will be provided within the time periods provided in Section 2.2 and 2.3, respectively.
2.6 Waiver and Release. Notwithstanding any other provisions of this Agreement or the Employment Agreement to the contrary, this Agreement shall not become effective, and neither the Company nor the Executive shall have any rights or obligations under this Agreement, unless and until the Executive General Release attached as Exhibit A hereto and made a part hereof (the “Executive Release”) becomes effective pursuant to its terms. Furthermore, the payments, benefits, vesting and other rights provided to the Executive under Section 2.2 and Section 2.3 of this Agreement (other than any payments, benefits, vesting and other rights that are triggered by the Transaction pursuant to the terms of the Company’s equity incentive plans and are not subject to the execution and non-revocation of a release of claims) are subject to, and contingent upon, the occurrence of the “Second Release Effective Date” (as defined in the Executive Release). If the Second Release Effective Date does not occur, the Executive shall have no right to any payments, benefits, vesting or other rights (other than any payments, benefits, vesting and other rights that are triggered by the Transaction pursuant to the terms of the Company’s equity incentive plans and are not subject to the execution and non-revocation of a release of claims) provided pursuant to Section 2.2 and Section 2.3 hereof.
2.7 Indemnification. From and after the Separation Date, the Company will indemnify the Executive and advance and/or reimburse related expenses, to the fullest extent permitted by the laws of the state of incorporation of the Company (Delaware) and with the limitations set forth under the Certificate of Incorporation and By-Laws of the Company. In addition, nothing herein shall affect the Executive’s rights, if any, to indemnification, advancement, defense or related reimbursement pursuant to, and subject to the terms and conditions of, any applicable D&O policies, any similar insurance policies or applicable law.
Section 3 Restrictive Covenants.
3.1 Post-Separation Covenants. The Executive hereby acknowledges, agrees to, and shall satisfy in full each of the Executive’s covenants, restrictions, obligations and agreements set forth in the Employment Agreement, including but not limited to Section VII therein, which are hereby incorporated into this Agreement by reference as if fully set forth in this Agreement (“Post-Separation Covenants”). For the avoidance of doubt, unless otherwise stated in the Employment Agreement or in this Agreement, such Post-Separation Covenants shall remain in effect for two years after the Separation Date. Notwithstanding anything to the contrary set forth herein, the Executive shall not be bound by the restrictions set forth in Paragraph C.ii. of Section VII of the Employment Agreement and may assume a position with another company or entity that otherwise would be in violation of this provision. For the avoidance of doubt, the Executive will remain bound by all other Post-Separation Covenants in accordance with their terms.
The Executive agrees that all of the Post-Separation Covenants are fair and reasonable and are an essential element of the payments, rights and benefits provided to the Executive pursuant to this Agreement and Employment Agreement, and but for the Executive’s agreement to comply therewith and herewith, the Company would not have entered into this Agreement or executed the Employment Agreement.
This Section 3.1 shall in all respects be subject to Paragraph 10 of the Executive Release.
3.2 Confidential and Proprietary Information. The Executive also acknowledges that in connection with her employment, she has had access to information of a nature not generally disclosed to the public. The Executive agrees to keep confidential and not disclose to anyone, unless legally compelled to do so, Confidential and Proprietary Information. “Confidential and Proprietary Information” includes but is not limited to all Company (including affiliates and subsidiaries) business and strategic plans, financial details, computer programs, manuals, contracts, current and prospective client and supplier lists, and developments owned, possessed or controlled by the Company, regardless of whether possessed or developed by the Executive in the course of her employment. Such Confidential and Proprietary Information may or may not be designated as confidential or proprietary and may be oral, written or electronic media. “Confidential and Proprietary Information” shall not include information that (a) was already publicly known at the time of disclosure to the Executive; (b) subsequently becomes publicly known other than through disclosure by the Executive; or (c) is generally known within the industry. The Executive understands that Confidential and Proprietary Information is owned and shall continue to be owned solely by the Company. The Executive agrees that she has not and will not disclose, directly or indirectly, in whole or in part, any Confidential and Proprietary Information except as may be required to respond to a court order, subpoena, or other legal process. In the event the Executive receives a court order, subpoena, or notice of other legal process requiring the disclosure of any information concerning the Company, including but not limited to Confidential and Proprietary Information, to the extent permitted by law, the Executive shall give the Company notice of such process within 48 hours of receipt, in order to provide the Company with the opportunity to move to quash or otherwise seek the preclusion of the disclosure of such information. The Executive acknowledges that she has complied and will continue to comply with this commitment, both as an employee and after the end of her employment. The Executive also acknowledges her continuing obligations under the Company’s
Business Principles. This Section 3.2 shall in all respects be subject to Paragraph 10 of the Executive Release.
Section 4 Miscellaneous.
4.1 Modifications. This Agreement may not be modified or amended except in writing signed by each of the parties hereto. No term or condition of this Agreement shall be deemed to have been waived except in writing by the party charged with such waiver. A waiver shall operate only as to the specific term or condition waived and shall not constitute a waiver for the future or act as a waiver of anything other than that specifically waived.
4.2 Governing Law. This Agreement has been executed and delivered in the State of New Jersey and its validity, interpretation, performance and enforcement shall be governed by the internal laws of the State of New Jersey (without reference to its conflict of laws rules).
4.3 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 of the parties hereto (other than with respect to the matters covered by Section 3 of this Agreement or the covenants, restrictions, and obligations of Executive under the Employment Agreement, for which the Company may, but shall not be required to, seek injunctive and/or other equitable relief in a judicial proceeding; in conjunction with the foregoing, the Executive acknowledges that the damages resulting from any breach of any such matter or provision would be irreparable and agrees that the Company has the right to apply to any court of competent jurisdiction for the issuance of a temporary restraining order to maintain the status quo pending the outcome of any proceeding) shall 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 shall deliver a notice to the other party hereto 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 Jersey, to the American Arbitration Association, before a single arbitrator appointed in accordance with the Employment Arbitration Rules of the American Arbitration Association, modified only as herein expressly provided. After the aforesaid twenty (20) days, either party hereto, 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 shall be final, unappealable and binding, and judgment on the award may be entered in any court having jurisdiction thereof.
(c) Except as otherwise provided in this Agreement, the arbitrator shall be authorized to apportion his or her 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 shall be borne equally by each party, and each party shall bear the fees and expenses of its own attorney.
(d) The parties hereto agree that this Section 4.3 has been included to rapidly and inexpensively resolve any disputes between them with respect to this Agreement, and that this Section 4.3 shall be grounds for dismissal of any court action commenced by either party hereto with respect to this Agreement, other than court actions commenced by the Company with respect to any matter covered by Section 3 of this Agreement or covenants, restrictions, and obligations of the Executive under the Employment Agreement and other than post-arbitration court 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 rights to a trial by jury in or with respect to such litigation.
(e) The parties shall keep confidential, and shall not disclose to any person the existence of the controversy hereunder, the referral of any such controversy to arbitration, or the status of resolution thereof. This Section 4.3(e) shall in all respects be subject to Paragraph 10 of the Executive Release.
4.4 Survival. Section VI through and including Section XIX of the Employment Agreement shall continue in full force and effect in accordance with their respective terms (except as modified by this Agreement), notwithstanding the execution and delivery by the parties of this Agreement. All of the Executive’s obligations, covenants and restrictions under the Employment Agreement, any confidentiality agreement, any non-disclosure agreement, and the Company’s Business Principles shall survive and continue in full force and effect. This Section 4.4 shall in all respects be subject to Paragraph 10 of the Executive Release.
4.5 Enforceability; Severability. It is the intention of the parties that the provisions of this Agreement shall be enforced to the fullest extent permissible under applicable law. 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 shall 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 shall be deemed modified so that it shall be enforced to the greatest extent permissible under law, and to the extent that any court of competent jurisdiction determines any restrictions herein to be unenforceable in any respect, such court may limit this Agreement to render it enforceable in the light of the circumstances in which it was entered into and specifically enforce this Agreement to the fullest extent permissible.
4.6 Withholding. All payments and benefits payable pursuant to this Agreement shall be subject to reduction by all applicable withholding, social security and other federal, state and local taxes and deductions.
4.7 Code Section 409A Compliance.
(a) It is intended that this Agreement comply with the provisions of Code Section 409A and all regulations, guidance and other interpretive authority issued thereunder (“Code Section 409A”), and this Agreement shall be construed and applied in a manner consistent with this intent. Notwithstanding any other provision herein to the contrary, to the extent that the reimbursement of any expenses or the provision of any in-kind benefits under this Agreement is subject to Code Section 409A, reimbursement of any such expense shall be made by no later than December 31 of the year following the calendar year in which such expense is incurred. Each and every payment under this Agreement shall be treated as a right to receive a series of separate payments under Treasury Regulation Section 1.409A-2(b)(2)(iii).
(b) Notwithstanding anything herein to the contrary, in no event whatsoever shall the Company or any of its affiliates be liable for any tax, additional tax, interest or penalty that may be imposed on the Executive pursuant to Code Section 409A or for any damages for failing to comply with Code Section 409A.
4.8 Notices. All notices or other communications hereunder shall not be binding on either party hereto unless in writing, and delivered to the other party thereto at the following address:
If to the Company:
Wyndham Worldwide Corporation
22 Sylvan Way
Parsippany, NJ 07054
Attn: Stephen P. Holmes, Chairman and Chief Executive Officer
If to the Executive:
Gail Mandel
[ ]
[ ]
With a copy to:
Orloff, Lowenbach, Stifelman & Siegel, P.A.
101 Eisenhower Parkway, Suite 400
Roseland, New Jersey 07068
Attn: Adam M. Haberfield, Esq.
Notices shall be deemed duly delivered upon hand delivery at the above address, or one day after deposit with a nationally recognized overnight delivery company, or three days after deposit thereof in the United States mails, postage prepaid, certified or registered mail. Any party may change its address for notice by delivery of written notice thereof in the manner provided.
4.9 Assignment. This Agreement is personal in nature to the Company and the rights and obligations of the Executive under this Agreement shall not be assigned or transferred by the
Executive. The Company may assign this Agreement to any successor to all or a portion of the business and/or assets of the Company, provided that the Company shall require such successor to expressly assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it if no such succession had taken place.
4.10 Jurisdiction. Subject to Section 4.3(a) of this Agreement, in any suit, action or proceeding seeking to enforce any provision of this Agreement, the Executive hereby (a) irrevocably consents to the exclusive jurisdiction of any federal court located in the State of New Jersey or any of the state courts of the State of New Jersey; (b) waives, to the fullest extent permitted by applicable law, any objection which she may now or hereafter have to the laying of venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding brought in any such court has been brought in an inconvenient forum; and (c) agrees that process in any such suit, action or proceeding may be served on her anywhere in the world, whether within or without the jurisdiction of such court, and, without limiting the foregoing, irrevocably agrees that service of process on such party, in the same manner as provided for notices in Section 4.8 of this Agreement, shall be deemed effective service of process on such party in any such suit, action or proceeding. The Executive and Company agree to waive any right to a jury in connection with any judicial proceeding.
4.11 Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, and all of which together shall constitute one and the same document.
4.12 Headings. The headings in this Agreement are intended solely for convenience of reference and shall be given no effect in the construction or interpretation of this Agreement.
4.13 Entire Agreement. This Agreement (including the Executive Release to be executed and delivered by the Executive pursuant to Section 2.6 above) is entered into between the Executive and the Company as of the date hereof and constitutes the entire understanding and agreement between the parties hereto and, other than as set forth in Section 4.4 of this Agreement, supersedes all prior agreements, understandings, discussions, negotiations and undertakings, whether written or oral, concerning the subject matter hereof, including, without limitation, the Employment Agreement. All negotiations by the parties concerning the subject matter hereof are merged into this Agreement, and there are no representations, warranties, covenants, understandings or agreements, oral or otherwise, in relation thereto by the parties hereto other than those incorporated herein.
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IN WITNESS WHEREOF, the undersigned parties have executed this Agreement as of the date first written above.
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WYNDHAM WORLDWIDE CORPORATION | ||
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By: |
/s/ Mary Falvey | |
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Name: |
Mary Falvey |
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Title: |
Chief Human Resources Officer |
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/s/ Gail Mandel | ||
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Executive: Gail Mandel | ||
EXHIBIT A
EXECUTIVE GENERAL RELEASE
I, Gail Mandel (“I” or “Executive”), on behalf of myself and my heirs, executors, administrators and assigns, in consideration of my Separation and Release Agreement with Wyndham Worldwide Corporation, a Delaware corporation (the “Company”), dated as of May , 2018 and effective as of January 2, 2018 (the “Agreement”), to which this Executive General Release (this “Executive Release”) is attached, do hereby knowingly and voluntarily release and forever discharge the Company and its affiliates and subsidiaries, and each of its and their past and future subsidiaries, affiliates, divisions, joint ventures, directors, members, officers, executives, employees, agents and stockholders (in their capacity as such), and any and all employee benefit plans maintained by any of the above entities and their respective plan administrators, committees, trustees and fiduciaries individually and in their representative capacities, and its and their respective predecessors, successors and assigns (both individually and in their representative capacities) (collectively, the “Released Parties”), from any and all actions, causes of action, covenants, contracts, claims, charges, demands, suits, and liabilities whatsoever, which I or my heirs, executors, administrators, successors or assigns ever had, now have or may have arising prior to or on the date upon which I execute and/or re-execute (as applicable) this Executive Release (“Claims”), including any Claims arising out of or relating in any way to my employment with the Company and its affiliates through the date upon which I execute and/or re-execute (as applicable) this Executive Release or end of my employment from the Company and its affiliates.
1. By signing and/or re-executing this Executive Release, I am providing a complete waiver of all Claims that may have arisen, whether known or unknown, up until and including the date upon which I execute and/or re-execute (as applicable) this Executive Release. This includes, but is not limited to Claims under or with respect to:
i. any and all matters arising out of my employment by the Company or any of the Released Parties through the date upon which I execute and/or re-execute (as applicable) this Executive Release and the cessation of said employment, and including, but not limited to, any alleged violation of the National Labor Relations Act (“NLRA”), any claims for discrimination of any kind under the Age Discrimination in Employment Act of 1967 (“ADEA”) as amended by the Older Workers Benefit Protection Act (“OWBPA”), Title VII of the Civil Rights Act of 1964 (“Title VII”), Sections 1981 through 1988 of Title 42 of the United States Code, the Executive Retirement Income Security Act of 1974 (“ERISA”) (except for vested benefits which are not affected by this agreement), the Americans With Disabilities Act of 1990, as amended (“ADA”), the Fair Labor Standards Act (“FLSA”), the Occupational Safety and Health Act (“OSHA”), the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”), the Federal Family and Medical Leave Act (“FMLA”), the Federal Worker Adjustment Retraining Notification Act (“WARN”), the Uniformed Services Employment and Reemployment Rights Act (“USERRA”); and
ii. The Genetic Information Nondiscrimination Act of 2008; Family Rights Act; Fair Employment and Housing Act; Unruh Civil Rights Act; Statutory Provisions Regarding the Confidentiality of AIDS; Confidentiality of Medical Information Act; Parental Leave Law; Apprenticeship Program Bias Law; Equal Pay Law; Whistleblower Protection Law; Military Personnel Bias Law; Statutory Provisions Regarding Family and Medical Leave; Statutory Provisions Regarding Electronic Monitoring of Executives; The Occupational Safety and Health Act, as amended; Obligations of Investigative Consumer Reporting Agencies Law; Political Activities of Executives Law; Domestic Violence Victim Employment Leave Law; Court Leave; the United States or New Jersey Constitutions; any Executive Order or other order derived from or based upon any federal regulations; and
iii. The New Jersey Law Against Discrimination; The New Jersey Civil Rights Act; The New Jersey Family Leave Act; The New Jersey State Wage and Hour Law; The Millville Dallas Airmotive Plant Job Loss Notification Act; The New Jersey Conscientious Executive Protection Act; The New Jersey Equal Pay Law; The New Jersey Occupational Safety and Health Law; The New Jersey Smokers’ Rights Law; The New Jersey Genetic Privacy Act; The New Jersey Fair Credit Reporting Act; The New Jersey Statutory Provision Regarding Retaliation/Discrimination for Filing a Workers’ Compensation Claim; New Jersey laws regarding Political Activities of Executives, Lie Detector Tests, Jury Duty, Employment Protection, and Discrimination; and
iv. any other federal, state or local civil or human rights law, or any other alleged violation of any local, state or federal law, regulation or ordinance, and/or public policy, implied or expressed contract, fraud, negligence, estoppel, defamation, infliction of emotional distress or other tort or common-law claim having any bearing whatsoever on the terms and conditions and/or cessation of my employment with the Company, including, but not limited to, all claims for any compensation including salary, back wages, front pay, bonuses or awards, incentive compensation, performance-based grants or awards, severance pay, vacation pay, stock grants, stock unit grants, stock options, or any other form of equity award, fringe benefits, disability benefits, severance benefits, reinstatement, retroactive seniority, pension benefits, contributions to 401(k) plans, or any other form of economic loss; all claims for personal injury, including physical injury, mental anguish, emotional distress, pain and suffering, embarrassment, humiliation, damage to name or reputation, interest, liquidated damages, and punitive damages; and all claims for costs, expenses, and attorneys’ fees.
Executive further acknowledges that Executive later may discover facts different from or in addition to those Executive now knows or believes (or knows or believes upon such re-execution) to be true regarding the matters released or described in this Executive Release, and even so Executive agrees that the releases and agreements contained in this Executive Release shall remain effective in all respects notwithstanding any later discovery of any different or additional facts.
Notwithstanding anything to the contrary herein, this Executive Release shall not apply to, and nothing herein constitutes a release or waiver by Executive of: (a) any obligations of the
Company or rights of Executive under the terms of the Agreement, (b) any claim or right that may arise after the date Executive executes and/or re-executes (as applicable) this Executive Release, (c) any 401(k) plan benefits due Executive pursuant to the terms and conditions of any Company 401(k) plan in which Executive was a participant on or prior to the Separation Date (as defined in the Agreement), (d) any benefits that are due or may be due to Executive under the Wyndham Worldwide Health and Welfare Plan in which Executive was a participant on or prior to the Separation Date, and (e) any claim or right Executive may have to indemnification, advancement, defense or related reimbursement pursuant to, and subject to the terms and conditions of, any applicable D&O policies or any similar insurance policies, the Company’s Certificate of Incorporation or By-Laws, or applicable law (claims with respect to any of the foregoing, collectively, “Excluded Claims”). Executive acknowledges and agrees that, except with respect to Excluded Claims, the Company and the Released Parties have fully satisfied any and all obligations whatsoever owed to Executive arising out of her employment with the Company or any of the Released Parties through the date upon which Executive executes and/or re-executes (as applicable) this Executive Release and the cessation of her employment with the Company or any of the Released Parties and that no further payments or benefits are owed to Executive by the Company or any of the Released Parties. This Paragraph 1 shall in all respects be subject to Paragraph 10 of this Executive Release.
2. Executive understands and agrees that she would not receive the payments and benefits specified in Section 2.2 and Section 2.3 of the Agreement, except for her execution and re-execution of this Executive Release and her satisfaction of her obligations contained in the Agreement and this Executive Release, and that such consideration is greater than any amount to which she would otherwise be entitled.
3. As of the date upon which Executive executes and/or re-executes (as applicable) this Executive Release, Executive acknowledges that she does not have any current charge, complaint, grievance or other proceeding against any of the Released Parties pending before any local, state or federal agency regarding her employment or separation from employment. This Paragraph 3 shall in all respects be subject to Paragraph 10 of this Executive Release.
4. The Company and Executive acknowledge that Executive cannot waive her right to file a charge, testify, assist, or participate in any manner in an investigation, hearing, or proceeding under the federal civil rights laws or federal whistleblower laws. Therefore, notwithstanding the provisions set forth herein, nothing contained in the Agreement or Executive Release is intended to nor shall it prohibit Executive from filing a charge with, or providing information to, the United States Equal Employment Opportunity Commission (“EEOC”) or other federal, state or local agency or from participating or cooperating in any investigation or proceeding conducted by the EEOC or other governmental agency. With respect to a claim for employment discrimination brought to the EEOC or state/local equivalent agency enforcing civil rights laws, Executive waives any right to personal injunctive relief and to personal recovery, damages, and compensation of any kind payable by any Released Party with respect to the claims released in the Agreement or Executive Release as set forth in herein.
5. As of the date upon which Executive executes and/or re-executes (as applicable) this Executive Release, Executive affirms that she has not knowingly provided, either directly or indirectly, any information or assistance to any party who may be considering or is taking legal
action against the Released Parties with the purpose of assisting such person in connection with such legal action. Executive understands that if this Agreement and Executive Release were not signed and re-executed, she would have the right to voluntarily provide information or assistance to any party who may be considering or is taking legal action against the Released Parties. Executive hereby waives that right and agrees that she will not provide any such assistance other than the assistance in an investigation or proceeding conducted by the EEOC or other federal, state or local agency, or pursuant to a valid subpoena or court order. This Paragraph 5 shall in all respects be subject to Paragraph 10 of this Executive Release.
6. As of the date upon which Executive executes and/or re-executes (as applicable) this Executive Release, Executive represents that she has not and agrees that she will not in any way disparage the Company or any Released Party, their current and former officers, directors and employees, or make or solicit any comments, statements, or the like to the media or to others that may be considered to be derogatory or detrimental to the good name or business reputation of any of the aforementioned parties or entities. This Paragraph 6 shall in all respects be subject to Paragraph 10 of this Executive Release.
7. Executive agrees, in addition to obligations set forth in the Agreement, to cooperate with and make herself available to the Company or any of its successors (including any past or future subsidiary of the Company), Released Parties, or its or their General Counsel, as the Company may reasonably request, to assist in any matter, including giving truthful testimony in any litigation or potential litigation, over which Executive may have knowledge, information or expertise. Executive shall be reimbursed, to the extent permitted by law, any reasonable costs associated with such cooperation, provided those costs are pre-approved by the Company prior to Executive incurring them. Executive acknowledges that her agreement to this provision is a material inducement to the Company to enter into the Agreement and to pay the consideration described herein.
8. As of the date upon which Executive re-executes this Executive Release, Executive acknowledges and confirms that she has returned all Company property to the Company including, but not limited to, all Company confidential and proprietary information in her possession, regardless of the format and no matter where maintained. Executive also certifies that all electronic files residing or maintained on any personal computer devices (thumb drives, tablets, personal computers or otherwise) will be returned and no copies retained. Executive also has returned her identification card, and computer hardware and software, all paper or computer based files, business documents, and/or other Business Records or Office Documents as defined in the Company Document Management Program, as well as all copies thereof, credit and procurement cards, keys and any other Company supplies or equipment in her possession. In addition, as of the date upon which Executive re-executes this Executive Release, Executive confirms that any business related expenses for which she seeks or will seek reimbursement have been, or will be, documented and submitted to the Company within 10 business days after the Separation Date (as defined in the Agreement). Finally, as of the date upon which Executive re-executes this Executive Release, any amounts owed to the Company have been paid. This Paragraph 8 shall in all respects be subject to Paragraph 10 of this Executive Release.
9. Executive acknowledges and agrees that in the event Executive has been reimbursed for business expenses, but has failed to pay her American Express bill or other Company-issued
charge card or credit card bill related to such reimbursed expenses, Executive shall promptly pay any such amounts within 7 days after any request by the Company and, in addition, the Company has the right and is hereby authorized to deduct the amount of any unpaid charge card or credit card bill from the severance payments or otherwise suspend payments or other benefits in an amount equal to the unpaid business expenses without being in breach of the Agreement.
10. Except as otherwise set forth in Paragraph 4 of this Executive Release, nothing contained in this Executive Release or in the Agreement is intended to nor shall it limit or prohibit Executive, or waive any right on her part, to initiate or engage in communication with, respond to any inquiry from, otherwise provide information to or obtain any monetary recovery from, any federal or state regulatory, self-regulatory, or enforcement agency or authority, as provided for, protected under or warranted by applicable law, in all events without notice to or consent of the Company.
11. Executive agrees that neither the Agreement nor this Executive Release, nor the furnishing of the consideration for this Executive Release, shall be deemed or construed at any time for any purpose as an admission by the Company of any liability or unlawful conduct of any kind, which the Company denies.
12. Executive understands that she has 45 calendar days within which to consider this Executive Release before signing it. The 45 calendar day period shall begin on January 3, 2018, the day after it was presented to Executive. After signing this Executive Release, Executive may revoke her signature within 7 calendar days (“Revocation Period”). In order to revoke her signature, Executive must deliver written notification of that revocation marked “personal and confidential” to Stephen P. Holmes, Chairman and Chief Executive Officer, Wyndham Worldwide Corporation, 22 Sylvan Way, Parsippany, NJ 07054. Notice of such revocation must be received within the seven (7) calendar days referenced. Executive understands that neither this Executive Release nor the Agreement will become effective or enforceable until this Revocation Period has expired and there has been no revocation by Executive, and the Company does not reasonably believe the Executive is in breach of any of the covenants contained in the Employment Agreement or Section 3 of the Agreement, or otherwise is in breach of any representations, affirmations or acknowledgements Executive has made under this Executive Release or the Agreement.
13. The Company’s obligations set forth in Section 2.2 and Section 2.3 of the Agreement are expressly contingent upon Executive’s re-execution and non-revocation of this Executive Release within forty-five (45) days following the Separation Date. Upon Executive’s re-execution of this Agreement (the “Re-Execution Date”), Executive advances to the Re-Execution Date her release of all Claims. Executive has seven (7) calendar days from the Re-Execution Date to revoke her re-execution of this Agreement. In order to revoke her signature, Executive must deliver written notification of that revocation marked “personal and confidential” to Stephen P. Holmes, Chairman and Chief Executive Officer, Wyndham Worldwide Corporation, 22 Sylvan Way, Parsippany, NJ 07054. Notice of such revocation must be received within the seven (7) calendar days referenced above. If Executive does not re-execute this Executive Release or if Executive revokes such re-execution, the Agreement and the previously executed Executive Release shall remain in full force and effect, but neither Company nor Executive shall have any rights or obligations under Section 2.2 or Section 2.3 of the Agreement. Provided that Executive does not revoke her re-execution of the Executive Release within such seven (7) day period, the
“Second Release Effective Date” shall occur on the eighth (8th) calendar day after the date on which Executive re-executes the signature page of this Executive Release.
EXECUTIVE HAS READ AND FULLY CONSIDERED THIS EXECUTIVE RELEASE, SHE UNDERSTANDS IT AND KNOWS SHE IS GIVING UP IMPORTANT RIGHTS, AND IS DESIROUS OF EXECUTING (AND RE-EXECUTING, AS APPLICABLE) AND DELIVERING THIS EXECUTIVE RELEASE. EXECUTIVE UNDERSTANDS THAT THIS DOCUMENT SETTLES, BARS AND WAIVES ANY AND ALL CLAIMS SHE HAD OR MIGHT HAVE AGAINST THE COMPANY AND ITS AFFILIATES (OTHER THAN EXCLUDED CLAIMS); AND SHE ACKNOWLEDGES THAT SHE IS NOT RELYING ON ANY OTHER REPRESENTATIONS, WRITTEN OR ORAL, NOT SET FORTH IN THIS EXECUTIVE RELEASE OR THE AGREEMENT. HAVING ELECTED TO EXECUTE (AND RE-EXECUTE, AS APPLICABLE) THIS EXECUTIVE RELEASE, TO FULFILL THE PROMISES SET FORTH HEREIN AND IN THE AGREEMENT, AND TO RECEIVE THEREBY THE SUMS AND BENEFITS SET FORTH IN THE AGREEMENT, EXECUTIVE FREELY AND KNOWINGLY, AND AFTER DUE CONSIDERATION, EXECUTES (AND RE-EXECUTES, AS APPLICABLE) AND DELIVERS THIS EXECUTIVE RELEASE.
EXECUTIVE HAS BEEN ADVISED OF EXECUTIVE’S RIGHT TO CONSULT WITH HER LEGAL COUNSEL PRIOR TO EXECUTING (AND RE-EXECUTING, AS APPLICABLE) THIS EXECUTIVE RELEASE AND THE AGREEMENT.
IF THIS DOCUMENT IS RETURNED EARLIER THAN 45 DAYS, THEN EXECUTIVE ADDITIONALLY ACKNOWLEDGES AND WARRANTS THAT SHE HAS VOLUNTARILY AND KNOWINGLY WAIVED THE 45 DAY REVIEW PERIOD, AND THIS DECISION TO ACCEPT A SHORTENED PERIOD OF TIME IS NOT INDUCED BY THE COMPANY THROUGH FRAUD, MISREPRESENTATION, A THREAT TO WITHDRAW OR ALTER THE OFFER PRIOR TO THE EXPIRATION OF THE 45 DAYS, OR BY PROVIDING DIFFERENT TERMS TO EXECUTIVE IF SHE SIGNS (OR RE-EXECUTES, AS APPLICABLE) THIS EXECUTIVE RELEASE PRIOR TO THE EXPIRATION OF SUCH TIME PERIOD.
THEREFORE, the Executive voluntarily and knowingly executes and/or re-executes this Executive Release as of the dates set forth below.
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Gail Mandel |
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Date Signed: |
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NOT TO BE RE-EXECUTED |
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PRIOR TO THE SEPARATION DATE |
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/s/ Gail Mandel |
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Gail Mandel |
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Date Signed: June 1, 2018 |