EMPLOYMENT AGREEMENT
(Xxxxxx Xxxxxx Xxxxxxxx)
This Employment Agreement (the "Agreement"), by and among Vacation
Properties International, Inc., a Delaware corporation ("VPI"), The Maury
People, Inc., a Massachusetts corporation and a wholly-owned subsidiary of VPI
(the "Company"), and Xxxxxx Xxxxxx Xxxxxxxx ("Employee"), is hereby entered into
as of this [___] day of [________], 1998, and shall be effective as of the date
of the consummation of the initial public offering of the common stock of VPI.
R E C I T A L S
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A. As of the date of this Agreement, the Company is engaged primarily in the
business of providing noncommercial property rental and sales services.
B. Employee has served as the President of the Company, as an employee at will,
prior to the date hereof.
C. Employee is employed hereunder by the Company in a confidential relationship
wherein Employee, in the course of Employee's employment with the Company, has
and will continue to become familiar with and aware of information as to the
Company's and VPI's customers, specific manner of doing business, including the
processes, techniques and trade secrets utilized by the Company and VPI, and
future plans with respect thereto, all of which has been and will be established
and maintained at great expense to the Company and VPI; this information is a
trade secret and constitutes the valuable good will of the Company and VPI.
A G R E E M E N T S
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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) The Company hereby extends an agreement to employ and hereby
employs Employee as President of the Company for the fixed term as set forth in
Section 5 hereof and subject to the terms hereof. As such, Employee shall have
responsibilities, duties and authority reasonably accorded to and expected of a
President of the Company, consistent with past practice of Employee, and will
report directly to the Board of Directors of the Company (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 the Company,
consistent with past practice of Employee.
(b) Employee shall faithfully adhere to, execute and fulfill all
policies established by the Company.
(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.
For all services rendered by Employee, the Company shall compensate
Employee as follows:
(a) Base Salary. The base salary payable to Employee shall be $75,000
per year, payable on a regular basis in accordance with the Company's standard
payroll procedures but not less frequently than monthly. In addition, for any
sales of properties during the Term for which Employee personally acts as
listing and/or selling real estate broker, as applicable, Employee shall receive
a commission equal to 60% of the portion of the gross commission due to the
Company for which she is personally responsible on such sales of property for
which Employee personally acted as listing and/or selling real estate broker, as
applicable, during any year within the Term, until such gross commissions
retained by the Company total $75,000 in any such year; thereafter Employee
shall receive a commission equal to 65% of the portion of such gross commissions
retained by the Company for which she is personally responsible, until such
gross commissions retained by the Company total $100,000 in any such year; and
thereafter Employee, shall receive a commission equal to 70% of the portion of
such gross commission retained by the Company for which she is personally
responsible in any such year.
(b) Incentive Bonus Plan. For 1998 and subsequent years, it is the
Company'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.
(c) Executive Perquisites, Benefits and Other Compensation. Employee
shall be entitled to receive additional benefits and compensation from the
Company 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 the Company or 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 the Company's expense
reporting policy.
(iii) An amount of vacation time consistent with past practice
of Employee, provided, however, that any such vacation, paid or unpaid,
shall be consistent with adequate performance of all duties and
obligations of Employee, including as set forth in Section 1 and
Section 5(c) hereof, and provided further, that in the event Employee's
vacation time or any vacation by Employee causes or contributes to
failure by Employee to adequately perform such duties, it shall
constitute "Good Cause" for termination pursuant to Section 5(c).
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(iv) The Company 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 Company-wide or VPI-wide
employee benefits as available from time to time.
3. NON-COMPETITION.
(a) Employee shall not, during the period of Employee's employment with
the Company, and for a period of two (2) years immediately following the
termination of Employee's employment under this Agreement (the "Noncompetition
Period"), for any reason whatsoever, directly or indirectly, for himself or
herself or on behalf of or in conjunction with any other person, persons,
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
the Company or VPI or any subsidiary of either the Company or VPI, (A)
within 100 miles of the locations in which the Company or VPI or any of
the Company's or VPI's subsidiaries (except the Company as long as the
Company is located on Nantucket Island) conducts a noncommercial
property management, rental or sales business or hotel management
business or (B) within the geographic boundary of Nantucket Island as
long as the Company is located on Nantucket Island (the geographic
areas set forth in the foregoing clauses (A) and (B) are collectively
herein referred to as the "Territory");
(ii) call upon any person who is, at that time, within the
Territory, an employee of the Company or VPI (including the respective
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 the Company or VPI (including the respective
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
the Company or VPI (including the respective subsidiaries thereof)
within the Territory for the purpose of providing noncommercial
property management, rental or sales services or hotel management
services to property owners and/or renters in direct competition with
the Company or VPI or any subsidiary of the Company or 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 the Company or VPI (including the
respective subsidiaries thereof) or for which, to Employee's actual
knowledge after due inquiry, the Company or VPI (or any subsidiary
thereof) made an acquisition analysis, for the purpose of acquiring
such entity, unless the Company or VPI (or any subsidiary thereof) has
expressly declined to pursue such acquisition candidate or at least one
(1) year has elapsed since the Company or VPI (or any subsidiary
thereof) has taken any action with respect to pursuing such acquisition
candidate.
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Notwithstanding anything in this Section 3 to the contrary, 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 business as a real estate broker other than
as an employee of the Company while employed by the Company, in any location
other than Nantucket Island after termination of Employee's employment with the
Company.
(b) Because of the difficulty of measuring economic losses to the
Company and VPI as a result of a breach of the foregoing covenant, and because
of the immediate and irreparable damage that could be caused to the Company and
VPI for which they would have no other adequate remedy, Employee agrees that the
foregoing covenant may be enforced by VPI or the Company 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 the Company or VPI (including VPI's other
subsidiaries) on the date of the execution of this Agreement and the current
plans of the Company or VPI (including VPI's other subsidiaries); but it is also
the intent of the Company, VPI and Employee that such covenants be construed and
enforced in accordance with the changing locations of the Company and VPI
(including VPI's other subsidiaries) throughout the Noncompetition Period. For
example, if, during the Noncompetition Period, the Company or VPI (including
VPI's other subsidiaries) establishes new locations for its current activities
or business in addition to the locations currently established therefor, then
Employee will be precluded from soliciting customers or employees from such new
locations and from directly competing within 100 miles of such new locations
through the Noncompetition Period.
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 the Company or VPI (including
VPI's other 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 the Company or VPI (including VPI's other subsidiaries) shall
thereafter enter the same, similar or a competitive (i) business, (ii) course of
activities or (iii) location, as applicable.
(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 the Company or VPI
(including the subsidiaries thereof), whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by VPI or the
Company of such covenants. It is specifically agreed that the Noncompetition
Period, 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 a court of competent jurisdiction or other
arbitrator or mediator has determined that Employee is in violation of any
provision of this paragraph 3.
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4. PLACE OF PERFORMANCE.
(a) Employee understands that he or she may be requested by the Board
or 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, the Company 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 to 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 the
Company and the personal life of Employee and Employee's family.
(b) Notwithstanding the above, if Employee is requested by the Board or
VPI 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:
(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 one hundred twenty (120) day period, but which shall not be
effective earlier than the last day of such one hundred twenty (120) day
period), the Company may terminate Employee's employment hereunder provided
Employee is unable to resume Employee's full-time duties at the conclusion of
such thirty (30) day 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 the Company with a written statement from a qualified doctor to such
effect and provided, further, that, at the Company'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
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the Company 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. The Company 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 perform, continuing for ten (10) days after receipt of
written notice stating the alleged failure with reasonable specificity and the
need to cure, any of Employee's material duties and responsibilities hereunder;
(3) Employee's willful dishonesty, fraud, or misconduct which adversely affects
the operations or reputation of the Company or VPI; (4) Employee's conviction in
a court of competent jurisdiction of a felony or any misdemeanor other than a
minor traffic violation; or (5) chronic alcohol abuse or illegal drug use by
Employee, provided that in the case of any termination pursuant to clauses (1),
(2) or (4), such termination must be approved by at least two-thirds of the
members of the Board of Directors of VPI. 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. Employee may only be terminated without good
cause by the Company during the Term hereof if such termination is approved by
at least two-thirds of the members of the Board of Directors of VPI. Should
Employee be terminated by the Company without good cause during the Term,
Employee shall be entitled to continue to receive from the Company 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 period is longer. Any
termination without good cause by the Company shall operate to shorten the
Noncompetition Period to one (1) year immediately following the date of such
termination. Further, should Employee be terminated by the Company 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 the Company 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 without good reason, effective thirty (30) days after
written notice is provided to the Company. 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 the Company'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 the Company, as
determined by a court of competent jurisdiction or pursuant to the provisions of
paragraph 16 below), the Company 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 in addition to any severance compensation
to which Employee may be entitled to hereunder, as calculated pursuant to
Section 5(d) hereof. 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
the Company.
(f) Change in Control of VPI or the Company. In the event of a "Change
in Control" (as defined below) of VPI or the Company during the Term, refer to
paragraph 12 below.
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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, the Company, and
Employee under this Agreement shall cease as of the effective date of
termination, except that the Company'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 the Company, VPI or their representatives, vendors
or customers which pertain to the business of the Company or VPI shall be and
remain the property of the Company or VPI, as the case may be, and be subject at
all times to their discretion and control. Likewise, all correspondence,
reports, records, charts, advertising materials and other similar data
pertaining to the business, activities or future plans of the Company or VPI
which is collected by Employee shall be delivered promptly to the Company
without request by it upon termination of Employee's employment.
7. INVENTIONS.
Employee shall disclose promptly to VPI and the Company 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 the Company or VPI and which Employee conceives as a result of
Employee's employment by the Company. Employee hereby assigns and agrees to
assign all of Employee's interests therein to the Company or its nominee.
Whenever requested to do so by the Company, Employee shall execute any and all
applications, assignments or other instruments that the Company shall deem
necessary to apply for and obtain Letters Patent of the United States or any
foreign country or to otherwise protect the Company's interest therein.
8. TRADE SECRETS.
Employee agrees that he or she will not, during or after the Term of
this Agreement with the Company, disclose the specific terms of the Company's or
VPI's relationships or agreements with their respective significant vendors or
customers or any other significant and material trade secret of the Company or
VPI, whether in existence or proposed, to any person, firm, partnership,
corporation or business for any reason or purpose whatsoever.
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 the Company or VPI against Employee), by
reason of the fact that Employee is or was performing services under this
Agreement, then the Company shall indemnify Employee against all expenses
(including attorneys'
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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 the Company are made a party to the same third-party action,
complaint, suit or proceeding, the Company or 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 the Company or VPI shall pay all reasonable attorneys' fees and
expenses of such separate counsel.
10. NO PRIOR AGREEMENTS.
Employee hereby represents and warrants to the Company that the
execution of this Agreement by Employee and his or her employment by the Company
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 the Company 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 the Company 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
the Company 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 the Company and/or VPI may be
merged or consolidated with or into another entity and that such entity shall
automatically succeed to the rights and obligations of the Company and/or VPI
hereunder or that the Company and/or 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 the Company
and/or 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 the Company's and/or VPI's business and/or assets that such successor is
willing as of the closing to assume and agree to perform the Company's and/or
VPI's obligations under this Agreement in the same manner and to the same extent
that the Company and/or VPI is hereby required to perform, then such Change in
Control shall be deemed to be a termination of this Agreement by the Company
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
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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 not apply.
(c) In any Change in Control situation, Employee may elect to terminate
this Agreement by providing written notice to the Company 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 the Company on or before 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 the Company 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 the Company or 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 the Company or 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 the Company at any time
that the Company anticipates that a Change in Control may take place.
(g) Employee shall be reimbursed by the Company 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 the Company 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, among the
Company, VPI and Employee, and Employee has no oral representations,
understandings or agreements with the Company 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 the Company 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 the Company 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.
0000-X Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Attn.: Xxxxx X. Xxxxxxxx
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To Employee: Xxxxxx Xxxxxx Xxxxxxxx
c/o The Maury People, Inc.
00 Xxxx Xxxxxx
Xxxxxxxxx Xxxxxx, XX 00000
Marked: "Personal and Confidential
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 Commercial Arbitration 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 the Company 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 the Company.
17. GOVERNING LAW.
This Agreement shall in all respects be construed according to the laws
of the Commonwealth of Massachusetts.
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.
11
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
The Maury People, Inc.
By:
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Name:
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Title:
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Vacation Properties International, Inc.,
a Delaware corporation
By:
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Name:
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Title:
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/s/ Xxxxxx Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxx Xxxxxxxx, Individually
