EXHIBIT 10.8
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 and Chief
Information Officer of VPI. As such, Employee shall have responsibilities,
duties and authority reasonably accorded to and expected of a Senior Vice
President and Chief Information Officer 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
75,000 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
18,750 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
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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");
(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
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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.
(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 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
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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.
(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,
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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.
(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
