EXHIBIT 10.5
EMPLOYMENT AGREEMENT
This Employment Agreement (the "Agreement"), by and between Vacation
Properties International, Inc., a Delaware corporation ("VPI"), and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇ ("Employee") is hereby entered into as of this 16th day of April, 1998,
and shall be effective as of the date (the "Effective Date") of the consummation
of the initial public offering of the common stock of VPI (the "IPO").
R E C I T A L S
A. As of the date of this Agreement, VPI is engaged primarily in the business of
providing noncommercial property management, rental and sales services and hotel
management services.
B. Employee is employed hereunder by VPI in a confidential relationship wherein
Employee, in the course of Employee's employment with VPI, has and will continue
to become familiar with and aware of information as to VPI's customers, specific
manner of doing business, including the processes, techniques and trade secrets
utilized by VPI, and future plans with respect thereto, all of which has been
and will be established and maintained at great expense to VPI; this information
is a trade secret and constitutes the valuable good will of VPI.
A G R E E M E N T S
In consideration of the mutual promises, terms, covenants and
conditions set forth herein and the performance of each, the parties hereto
hereby agree as follows:
1. EMPLOYMENT AND DUTIES.
(a) VPI hereby employs Employee as Senior Vice President of Marketing
of VPI. As such, Employee shall have responsibilities, duties and authority
reasonably accorded to and expected of a Senior Vice President of Marketing of
VPI and will report directly to the Board of Directors of VPI (the "Board").
Employee hereby accepts this employment upon the terms and conditions herein
contained and, subject to paragraph 1(c) hereof, agrees to devote Employee's
full working time, attention and efforts to promote and further the business of
VPI.
(b) Employee shall faithfully adhere to, execute and fulfill all
policies established by VPI.
(c) Employee shall not, during the term of his or her employment
hereunder, be engaged in any other business activity pursued for gain, profit or
other pecuniary advantage if such activity interferes with Employee's duties and
responsibilities hereunder. The foregoing limitations shall not be construed as
prohibiting Employee from making personal investments in such form or manner as
will neither require Employee's services in the operation or affairs of the
companies or enterprises in which such investments are made nor violate the
terms of paragraph 3 hereof.
2. COMPENSATION; OPTIONS.
For all services rendered by Employee, VPI shall compensate Employee as
follows:
(a) Base Salary. The base salary payable to Employee shall be $125,000
per year, payable on a regular basis in accordance with VPI's standard payroll
procedures but not less than monthly.
(b) Incentive Bonus Plan. For 1998 and subsequent years, it is VPI's
intent to develop a written Incentive Bonus Plan (which may be VPI's Incentive
Bonus Plan) setting forth the criteria under which Employee and other officers
and key employees will be eligible to receive year-end bonus awards. VPI
contemplates that the maximum bonus for which Employee may be eligible will be
50% of Employee's base salary.
(c) Executive Perquisites, Benefits and Other Compensation. Employee
shall be entitled to receive additional benefits and compensation from VPI in
such form and to such extent as specified below:
(i) Payment of all premiums for coverage for Employee under
health, hospitalization, disability, dental, life and other insurance
plans that VPI may have in effect from time to time, benefits provided
to Employee under this clause (i) to be at least equal to such benefits
provided to VPI executives.
(ii) Reimbursement for all business travel and other
out-of-pocket expenses reasonably incurred by Employee in the
performance of Employee's services pursuant to this Agreement. All
reimbursable expenses shall be appropriately documented in reasonable
detail by Employee upon submission of any request for reimbursement,
and in a format and manner consistent with VPI's expense reporting
policy.
(iii) VPI shall provide Employee with other executive
perquisites as may be available to or deemed appropriate for Employee
by the Board and participation in all other VPI-wide employee benefits
as available from time to time.
At the Effective Date, VPI shall grant to Employee options to acquire
25,000 shares of VPI common stock at the price per share at which such stock is
offered to the public in the IPO. Such options shall vest in installments of
6,250 shares on each of the first, second, third and fourth anniversaries of the
Effective Date.
3. NON-COMPETITION.
(a) Employee shall not, during the period of Employee's employment with
VPI, and for a period of two (2) years immediately following the termination of
Employee's employment under this Agreement, for any reason whatsoever, directly
or indirectly, for himself or herself or on behalf of or in conjunction with any
other person, company, partnership, corporation or business of whatever nature:
(i) engage, as an officer, director, shareholder, owner,
partner, joint venturer or in a managerial capacity, whether as an
employee, independent contractor, consultant or advisor, or as a sales
representative, in any noncommercial property management, rental or
sales business or hotel management business in direct competition with
VPI or any subsidiary of VPI, within 100 miles of the locations in
which VPI or any of VPI's subsidiaries conducts any noncommercial
property management, rental or sales business or hotel management
business (the "Territory");
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(ii) call upon any person who is, at that time, within the
Territory, an employee of VPI (including the subsidiaries thereof) in a
sales representative or managerial capacity for the purpose or with the
intent of enticing such employee away from or out of the employ of VPI
(including the subsidiaries thereof), provided that Employee shall be
permitted to call upon and hire any member of his or her immediate
family;
(iii) call upon any person or entity which is at that time, or
which has been, within one (1) year prior to that time, a customer of
VPI (including the subsidiaries thereof) within the Territory for the
purpose of providing noncommercial property management, rental or sales
services to property owners and/or renters in direct competition with
VPI or any subsidiary of VPI within the Territory; or
(iv) call upon any prospective acquisition candidate, on
Employee's own behalf or on behalf of any competitor in the
noncommercial property management, rental or sales business or hotel
management business, which candidate, to Employee's actual knowledge
after due inquiry, was called upon by VPI (including the subsidiaries
thereof) or for which, to Employee's actual knowledge after due
inquiry, VPI (or any subsidiary thereof) made an acquisition analysis,
for the purpose of acquiring such entity, unless VPI (or any subsidiary
thereof) has expressly declined to pursue such acquisition candidate or
at least one (1) year has elapsed since VPI (or any subsidiary thereof)
has taken any action with respect to pursuing such acquisition
candidate.
Notwithstanding the above, the foregoing covenant shall not be deemed
to prohibit Employee from (A) acquiring as an investment not more than two
percent (2%) of the capital stock of a competing business whose stock is traded
on a national securities exchange or over-the-counter or (B) engaging in the
hotel management business if the Employee's employment hereunder is terminated
after the initial three-year term of this Agreement.
(b) Because of the difficulty of measuring economic losses to VPI as a
result of a breach of the foregoing covenant, and because of the immediate and
irreparable damage that could be caused to VPI for which they would have no
other adequate remedy, Employee agrees that the foregoing covenant may be
enforced by VPI in the event of breach by him or her, by injunctions and
restraining orders.
(c) It is agreed by the parties hereto that the foregoing covenants in
this paragraph 3 impose a reasonable restraint on Employee in light of the
activities and business of VPI (including VPI's subsidiaries) on the date of the
execution of this Agreement and the current plans of VPI (including VPI's
subsidiaries); but it is also the intent of VPI and Employee that such covenants
be construed and enforced in accordance with the changing locations of VPI
(including VPI's subsidiaries) throughout the term of this Agreement. For
example, if, during the term of this Agreement, VPI (including VPI's
subsidiaries) establishes new locations for its current activities or business,
then Employee will be precluded from soliciting the customers or employees from
such new location and from directly competing within 100 miles of such locations
through the term of this Agreement.
It is further agreed by the parties hereto that, in the event that
Employee shall cease to be employed hereunder, and shall enter into a business
or pursue other activities not in competition with VPI (including VPI's
subsidiaries), or similar activities, or business in locations the operation of
which, under such circumstances, does not violate clause (i) of this paragraph
3, and in any event such new business, activities or location are not in
violation of this paragraph 3 or of Employee's obligations under this paragraph
3, if any, Employee shall not be chargeable with a violation of this paragraph 3
if VPI (including VPI's subsidiaries) shall thereafter enter the same, similar
or a competitive (i) business, (ii) course of activities or (iii) location, as
applicable.
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(d) The covenants in this paragraph 3 are severable and separate, and
the unenforceability of any specific covenant shall not affect the provisions of
any other covenant. Moreover, in the event any court of competent jurisdiction
shall determine that the scope, time or territorial restrictions set forth are
unreasonable, then it is the intention of the parties that such restrictions be
enforced to the fullest extent which the court deems reasonable, and the
Agreement shall thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be construed as an
agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of Employee against VPI (including the
subsidiaries thereof), whether predicated on this Agreement or otherwise, shall
not constitute a defense to the enforcement by VPI of such covenants. It is
specifically agreed that the period of two (2) years following termination of
employment stated at the beginning of this paragraph 3, during which the
agreements and covenants of Employee made in this paragraph 3 shall be
effective, shall be computed by excluding from such computation any time during
which Employee is in violation of any provision of this paragraph 3.
4. PLACE OF PERFORMANCE.
(a) Employee understands that he or she may be requested by VPI to
relocate from Employee's present residence to another geographic location in
order to more efficiently carry out Employee's duties and responsibilities under
this Agreement or as part of a promotion or other increase in duties and
responsibilities. In such event, if Employee agrees to relocate, VPI will pay
all reasonable relocation costs to move Employee, Employee's immediate family
and their personal property and effects. Such costs may include, by way of
example, but are not limited to, reasonable expenses related pre-move visits to
search for a new residence, investigate schools or for other purposes;
reasonable temporary lodging and living costs prior to moving into a new
permanent residence; duplicate home carrying costs; all closing costs on the
sale of Employee's present residence and on the purchase of a comparable
residence in the new location; and added income taxes that Employee may incur if
any unreimbursed relocation costs are not deductible for tax purposes. The
general intent of the foregoing is that Employee shall not personally bear any
out-of-pocket cost as a result of the relocation, with an understanding that
Employee will use Employee's best efforts to incur only those costs which are
reasonable and necessary to effect a smooth, efficient and orderly relocation
with minimal disruption to the business affairs of VPI and the personal life of
Employee and Employee's family.
(b) Notwithstanding the above, if Employee is requested by the Board to
relocate and Employee refuses, such refusal shall not constitute "good cause"
for termination of this Agreement under the terms of paragraph 5(c).
5. TERM; TERMINATION; RIGHTS ON TERMINATION.
The term of this Agreement shall begin on the date hereof and continue
for three (3) years, and, unless terminated sooner as herein provided, shall
continue thereafter on a year-to-year basis on the same terms and conditions
contained herein in effect as of the time of renewal (such initial three year
period and any extensions thereof being referred to herein as the "Term"). This
Agreement and Employee's employment may be terminated in any one of the
following ways:
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(a) Death. The death of Employee shall immediately terminate this
Agreement with no severance compensation due to Employee's estate.
(b) Disability. If, as a result of incapacity due to physical or mental
illness or injury, Employee shall have been absent from Employee's full-time
duties hereunder for one hundred twenty (120) consecutive days, then thirty (30)
days after receiving written notice (which notice may occur before or after the
end of such four (4) month period, but which shall not be effective earlier than
the last day of such four (4) month period), VPI may terminate Employee's
employment hereunder provided Employee is unable to resume Employee's full-time
duties at the conclusion of such notice period. Also, Employee may terminate
Employee's employment hereunder if his or her health should become impaired to
an extent that makes the continued performance of Employee's duties hereunder
hazardous to Employee's physical or mental health or life, provided that
Employee shall have furnished VPI with a written statement from a qualified
doctor to such effect and provided, further, that, at VPI's request made within
thirty (30) days of the date of such written statement, Employee shall submit to
an examination by a doctor selected by VPI who is reasonably acceptable to
Employee or Employee's doctor and such doctor shall have concurred in the
conclusion of Employee's doctor. In the event this Agreement is terminated as a
result of Employee's disability, Employee shall have no right to any severance
compensation.
(c) Good Cause. VPI may terminate the Agreement ten (10) days after
delivery of written notice to Employee for good cause, which shall be: (1)
Employee's willful, material, and irreparable breach of this Agreement; (2)
Employee's failure to adequately perform, continuing for ten (10) days after
receipt of written notice of need to cure, any of Employee's material duties and
responsibilities hereunder, provided that a termination pursuant to this clause
(2) is approved by a vote of at least two-thirds of the Board of the Directors
of VPI; (3) Employee's willful dishonesty, fraud, or misconduct which adversely
affects the operations or reputation of VPI; (4) Employee's conviction of a
crime; or (5) chronic alcohol abuse or illegal drug use by Employee. In the
event of a termination for good cause, as enumerated above, Employee shall have
no right to any severance compensation.
(d) Without Good Cause. Should Employee be terminated by VPI without
good cause during the Term, Employee shall be entitled to continue to receive
from VPI the base salary at the rate then in effect for whatever time period is
remaining under the Term of this Agreement or for one (1) year, whichever amount
is greater. Should Employee be terminated by VPI without good cause at any time
during or after the Term, Employee shall be entitled to waive Employee's right
to receive severance compensation (by a written waiver delivered to VPI on the
effective date of termination), and, in such case, the non-competition
provisions of paragraph 3 shall not apply.
(e) By Employee. At any time after the commencement of employment,
Employee may, without "good reason" (as defined below), terminate this Agreement
and Employee's employment, effective thirty (30) days after written notice is
provided to VPI. If Employee resigns or otherwise terminates Employee's
employment without good reason, Employee shall receive no severance
compensation. If Employee's resignation or other termination by Employee is for
good reason (defined as VPI's failure to pay Employee on a timely basis the
amounts to which he or she is entitled under this Agreement or as a result of
any other material breach of this Agreement by VPI, as determined by a court of
competent jurisdiction or pursuant to the provisions of paragraph 16 below), VPI
shall pay all amounts and damages to which Employee may be entitled as a result
of such breach, including interest thereon and all reasonable legal fees and
expenses and other costs incurred by Employee to enforce Employee's rights
hereunder. Further, none of the provisions of paragraph 3 hereof shall apply in
the event this Agreement is terminated as a result of such a breach by VPI.
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(f) Change in Control of VPI. In the event of a "Change in Control of
VPI" (as defined below) during the Term, refer to paragraph 12 below.
Upon termination of this Agreement for any reason provided above,
Employee shall be entitled to receive all compensation earned and all benefits
and reimbursements due through the effective date of termination. Additional
compensation subsequent to termination, if any, will be due and payable to
Employee only to the extent and in the manner expressly provided above or in
paragraph 12 hereof. All other rights and obligations of VPI and Employee under
this Agreement shall cease as of the effective date of termination, except that
VPI's obligations under paragraph 9 hereof and Employee's obligations under
paragraphs 3, 6, 7, 8 and 10 hereof shall survive such termination in accordance
with their terms.
6. RETURN OF COMPANY PROPERTY.
All records, designs, patents, business plans, financial statements,
manuals, memoranda, lists and other property delivered to or compiled by
Employee by or on behalf of VPI or its representatives, vendors or customers
which pertain to the business of VPI shall be and remain the property of VPI and
be subject at all times to its discretion and control. Likewise, all
correspondence, reports, records, charts, advertising materials and other
similar data pertaining to the business, activities or future plans of VPI which
is collected by Employee shall be delivered promptly to VPI without request by
it upon termination of Employee's employment.
7. INVENTIONS.
Employee shall disclose promptly to VPI any and all significant
conceptions and ideas for inventions, improvements and valuable discoveries,
whether patentable or not, which are conceived or made by Employee, solely or
jointly with another, during the period of employment or within one (1) year
thereafter, and which are directly related to the business or activities of VPI
and which Employee conceives as a result of Employee's employment by VPI.
Employee hereby assigns and agrees to assign all of Employee's interests therein
to VPI or its nominee. Whenever requested to do so by VPI, Employee shall
execute any and all applications, assignments or other instruments that VPI
shall deem necessary to apply for and obtain Letters Patent of the United States
or any foreign country or to otherwise protect VPI's interest therein.
8. TRADE SECRETS.
Employee agrees that he or she will not, during or after the Term of
this Agreement with VPI, disclose the specific terms of VPI's relationships or
agreements with its significant vendors or customers or any other significant
and material trade secret of VPI, whether in existence or proposed, to any
person, firm, partnership, corporation or business for any reason or purpose
whatsoever.
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9. INDEMNIFICATION.
In the event Employee is made a party to any threatened, pending, or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by VPI against Employee), by reason of the
fact that Employee is or was performing services under this Agreement, then VPI
shall indemnify Employee against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement, as actually and reasonably
incurred by Employee in connection therewith. In the event that both Employee
and VPI are made a party to the same third-party action, complaint, suit or
proceeding, VPI agrees to engage competent legal representation, and Employee
agrees to use the same representation, provided that if counsel selected by VPI
shall have a conflict of interest that prevents such counsel from representing
Employee, Employee may engage separate counsel and VPI shall pay all reasonable
attorneys' fees of such separate counsel.
10. NO PRIOR AGREEMENTS.
Employee hereby represents and warrants to VPI that the execution of
this Agreement by Employee and his or her employment by VPI and the performance
of Employee's duties hereunder will not violate or be a breach of any agreement
with a former employer, client or any other person or entity. Further, Employee
agrees to indemnify VPI for any claim, including but not limited to attorneys'
fees and expenses of investigation, by any such third party that such third
party may now have or may hereafter come to have against VPI based upon or
arising out of any noncompetition agreement, invention or secrecy agreement
between Employee and such third party which was in existence as of the date of
this Agreement.
11. ASSIGNMENT; BINDING EFFECT.
Employee understands that he or she has been selected for employment by
VPI on the basis of Employee's personal qualifications, experience and skills.
Employee, therefore, shall not assign all or any portion of Employee's
performance under this Agreement. Subject to the preceding two (2) sentences and
the express provisions of paragraph 12 below, this Agreement shall be binding
upon, inure to the benefit of and be enforceable by the parties hereto and their
respective heirs, legal representatives, successors and assigns.
12. CHANGE IN CONTROL.
(a) Unless Employee elects to terminate this Agreement pursuant to (c)
below, Employee understands and acknowledges that VPI may be merged or
consolidated with or into another entity and that such entity shall
automatically succeed to the rights and obligations of VPI hereunder or that VPI
may undergo another type of Change in Control. In the event such a merger or
consolidation or other Change in Control is initiated prior to the end of the
Term, then the provisions of this paragraph 12 shall be applicable.
(b) In the event of a pending Change in Control wherein VPI and
Employee have not received written notice at least five (5) business days prior
to the anticipated closing date of the transaction giving rise to the Change in
Control from the successor to all or a substantial portion of VPI's business
and/or assets that such successor is willing as of the closing to assume and
agree to perform VPI's obligations under this Agreement in the same manner and
to the same extent that VPI is hereby required to perform, then such Change in
Control shall be deemed to be a termination of this Agreement by VPI without
cause during the Term and the applicable portions of paragraph 5(d) will apply;
however, under such circumstances, the amount of the severance payment due to
Employee shall be triple the amount calculated under the terms of paragraph 5(d)
and shall payable in a lump sum payment and the noncompetition provisions of
paragraph 3 shall not apply.
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(c) In any Change in Control situation, Employee may elect to terminate
this Agreement by providing written notice to VPI at least five (5) business
days prior to the anticipated closing of the transaction giving rise to the
Change in Control. In such case, the applicable provisions of paragraph 5(d)
will apply as though the Company had terminated the Agreement without cause
during the Term; however, under such circumstances, the amount of the severance
payment due to Employee shall be double the amount calculated under the terms of
paragraph 5(d) and shall be payable in a lump sum payment and the noncompetition
provisions of paragraph 3 shall all apply for a period of two (2) years from the
effective date of termination. Employee shall have the right to waive Employee's
right to receive the severance compensation payable under this paragraph 12(c)
(by a written waiver delivered to VPI on the effective date of the termination),
in which case the noncompetition provisions of paragraph 3 shall not apply.
(d) For purposes of applying paragraph 5 hereof under the circumstances
described in (b) and (c) above, the effective date of termination will be the
closing date of the transaction giving rise to the Change in Control and all
compensation, reimbursements and lump-sum payments due Employee must be paid in
full by VPI at or prior to such closing. Further, Employee will be given
sufficient time and opportunity to elect whether to exercise all or any of
Employee's vested options to purchase VPI Common Stock, including any options
with accelerated vesting under the provisions of VPI's 1998 Long-Term Incentive
Plan, such that Employee may convert the options to shares of VPI Common Stock
at or prior to the closing of the transaction giving rise to the Change in
Control, if Employee so desires.
(e) A "Change in Control" shall be deemed to have occurred if any of
the following shall have occurred unless the transaction or event shall have
been approved by at least two-thirds (2/3) of the Board of Directors of VPI:
(i) any person or entity, other than VPI or an employee
benefit plan of VPI, acquires directly or indirectly the Beneficial
Ownership (as defined in Section 13(d) of the Securities Exchange Act
of 1934, as amended) of any voting security of VPI and immediately
after such acquisition such person or entity is, directly or
indirectly, the Beneficial Owner of voting securities representing 50%
or more of the total voting power of all of the then-outstanding voting
securities of VPI;
(ii) the following individuals no longer constitute a majority
of the members of the Board of Directors of VPI: (A) the individuals
who, as of the closing date of VPI's initial public offering,
constitute the Board of Directors of VPI (the "Original Directors");
(B) the individuals who thereafter are elected to the Board of
Directors of VPI and whose election, or nomination for election, to the
Board of Directors of VPI was approved by a vote of at least two-thirds
(2/3) of the Original Directors then still in office (such directors
becoming "Additional Original Directors" immediately following their
election); and (C) the individuals who are elected to the Board of
Directors of VPI and whose election, or nomination for election, to the
Board of Directors of VPI was approved by a vote of at least two-thirds
(2/3) of the Original Directors and Additional Original Directors then
still in office (such directors also becoming "Additional Original
Directors" immediately following their election);
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(iii) the stockholders of VPI shall approve a merger,
consolidation, recapitalization or reorganization of VPI, a reverse
stock split of outstanding voting securities, or consummation of any
such transaction if stockholder approval is not obtained, other than
any such transaction which would result in at least 75% of the total
voting power represented by the voting securities of the surviving
entity outstanding immediately after such transaction being
Beneficially Owned by at least 75% of the holders of outstanding voting
securities of VPI immediately prior to the transaction, with the voting
power of each such continuing holder relative to other such continuing
holders not substantially altered in the transaction; or
(iv) the stockholders of VPI shall approve a plan of complete
liquidation of VPI or an agreement for the sale or disposition by VPI
of all or a substantial portion of VPI's assets (i.e., 50% or more of
the total assets of VPI).
(f) Employee must be notified in writing by VPI at any time that VPI
anticipates that a Change in Control may take place.
(g) Employee shall be reimbursed by VPI or its successor for any excise
taxes that Employee incurs under Section 4999 of the Internal Revenue Code of
1986, as a result of any Change in Control. Such amount will be due and payable
by VPI or its successor within ten (10) days after Employee delivers a written
request for reimbursement accompanied by a copy of Employee's tax return(s)
showing the excise tax actually incurred by Employee.
13. COMPLETE AGREEMENT.
This Agreement is not a promise of future employment. This Agreement
supersedes any other agreements or understandings, written or oral, between VPI
and Employee, and Employee has no oral representations, understandings or
agreements with VPI or any of its officers, directors or representatives
covering the same subject matter as this Agreement.
This written Agreement is the final, complete and exclusive statement
and expression of the agreement between VPI and Employee and of all the terms of
this Agreement, and it cannot be varied, contradicted or supplemented by
evidence of any prior or contemporaneous oral or written agreements. This
written Agreement may not be later modified except by a written instrument
signed by a duly authorized officer of VPI and Employee, and no term of this
Agreement may be waived except by a written instrument signed by the party
waiving the benefit of such term.
14. NOTICE.
Whenever any notice is required hereunder, it shall be given in writing
addressed as follows:
To the Company: Vacation Properties International, Inc.
c/o Capstone Partners, LLC
▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
To Employee: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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Notice shall be deemed given and effective three (3) days after the deposit in
the U.S. mail of a writing addressed as above and sent first class mail,
certified, return receipt requested, or when actually received. Either party may
change the address for notice by notifying the other party of such change in
accordance with this paragraph 14.
15. SEVERABILITY; HEADINGS.
If any portion of this Agreement is held invalid or inoperative, the
other portions of this Agreement shall be deemed valid and operative and, so far
as is reasonable and possible, effect shall be given to the intent manifested by
the portion held invalid or inoperative. The paragraph headings herein are for
reference purposes only and are not intended in any way to describe, interpret,
define or limit the extent or intent of the Agreement or of any part hereof.
16. ARBITRATION.
Any unresolved dispute or controversy arising under or in connection
with this Agreement shall be settled exclusively by arbitration, conducted
before a panel of three (3) arbitrators in Memphis, Tennessee in accordance with
the rules of the American Arbitration Association then in effect. The
arbitrators shall not have the authority to add to, detract from or modify any
provision hereof nor to award punitive damages to any injured party. The
arbitrators shall have the authority to order back-pay, severance compensation,
vesting of options (or cash compensation in lieu of vesting of options),
reimbursement of costs, including those incurred to enforce this Agreement, and
interest thereon in the event the arbitrators determine that Employee was
terminated without disability or good cause, as defined in paragraphs 5(b) and
5(c) hereof, respectively, or that VPI has otherwise materially breached this
Agreement. A decision by a majority of the arbitration panel shall be final and
binding. Judgment may be entered on the arbitrators' award in any court having
jurisdiction. The direct expense of any arbitration proceeding shall be borne by
VPI.
17. GOVERNING LAW.
This Agreement shall in all respects be construed according to the laws
of the State of Tennessee.
18. COUNTERPARTS.
This Agreement may be executed simultaneously in two (2) or more
counterparts, each of which shall be deemed an original and all of which
together shall constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
Vacation Properties International, Inc.,
a Delaware corporation
By:
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Name:
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Title:
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Individually