CONSULTING SERVICES AGREEMENT
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This CONSULTING SERVICES AGREEMENT ("Agreement") is entered into as of
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this 30th day of September, 1998, by and among Xxxxxxx X. Avril
("Consultant"), and Vistana, Inc. ("Vistana"), and will become effective on
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January 1, 1999 ("Effective Date").
WHEREAS, prior to the Effective Date, Consultant was an officer and
employee of Vistana and an officer of certain related corporations, partnerships
and other entities (the "Corporations");
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WHEREAS, by mutual agreement Consultant will upon the Effective Date
simultaneously resign as an officer of Vistana and of the Corporations and
terminate Consultant's employment with Vistana pursuant to the Resignation
Agreement which shall be executed by the parties simultaneously with the
execution of this Agreement;
WHEREAS, Vistana and the Consultant desire that the Consultant be
available to advise Vistana and its affiliated entities during the term of this
Agreement and upon the terms and conditions set forth herein;
NOW, THEREFORE, in consideration of the promises and the mutual
covenants and agreements contained in this Agreement and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. SERVICES.
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(a) DESCRIPTION. Vistana hereby engages the Consultant, and the
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Consultant hereby accepts such engagement, to provide consulting services on the
terms and conditions hereinafter set forth. Consultant agrees to be available
to provide consulting services for Vistana, or at Vistana's request for one or
more of its Affiliates (as defined in the Resignation Agreement) on specific
projects ("Projects") utilizing the Consultant's broad industry skill and
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knowledge in a manner that best fits the needs of Vistana and/or its Affiliates.
It is anticipated that the Projects may require out-of-town travel by
Consultant; otherwise Consultant shall be required to furnish his own office
accommodations although the Company may make temporary space available at no
charge if it chooses in its sole and absolute discretion. Any Projects
requiring out-of-town travel shall be coordinated with Consultant's schedule on
reasonable advance notice. Each Project's scope, timing and results shall be
mutually determined. Requests for consulting services may be made only by
Xxxxxxx X. Xxxxx or Xxxxxxx X. Xxxxxxx, Xx. or in their absence, the Company's
Chief Executive Officer. The types of projects for which Vistana may request
Consultant's services include, but are not limited to: monthly review and
analysis of financial and operating reports with an emphasis on the areas of
sales and marketing; participation in sales and marketing management retreats,
projects and
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meetings; review and analysis of all industry public company quarterly and
annual financial statement filings; provision of quarterly reports to Vistana
management concerning sales, marketing, or other significant trends; review and
analysis of financial statements, financial projections, budgets, and similar
information concerning Vistana and entities that Vistana may possibly acquire.
(b) TIME COMMITMENT. It is envisioned that Consultant will provide
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approximately 800 hours ("Retained Hours") of consulting services to Vistana
and/or its Affiliates each calendar year. Additional hours above the 800
Retained Hours may be made available subject to mutually acceptable terms
between the parties. Moreover, Vistana and Consultant acknowledge and recognize
that Consultant's availability to provide services will be significantly limited
between April 15 and October 15 of each year due to Consultant's golf
commitment. A sample, non-binding, estimate of hours by month is attached as
"Exhibit 1" as an indication of the seasonality of hours. Vistana acknowledges
that it will coordinate with Consultant so that his services can be provided in
a flexible manner and will notify Consultant as soon as possible of any need to
engage his services. Consultant agrees to produce to Vistana a summary of hours
of services provided on a monthly basis. If the Company consistently elects not
to utilize available hours, Consultant shall not be required to make
unreasonable time commitments to make up for passed time. Vistana is under no
obligation to utilize Consultant's services in any amount and, regardless of
amount, the compensation specified in Section 2, below, shall still be due and
payable to Consultant; provided, however, that if Consultant accepts other
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consulting work or employment which, alone or together, equate to a full time
commitment to any entity other than Vistana and its Affiliates, Vistana's
obligation to provide the compensation contemplated in Section 2, below, shall
be reduced in an amount commensurate with the effect that the other consulting
work and/or employment has on Consultant's ability to provide the services
contemplated herein. Vistana retains the discretion to determine, in good
faith, whether Consultant's other consulting work and/or employment equates to a
full time commitment for purposes of this Section, and to adjust Consultant's
compensation accordingly, but in no event shall such adjustment be less than
$18,000.00 annually, paid monthly as may be applicable.
(c) INDEPENDENT CONTRACTOR. Consultant acknowledges that the services
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provided under this Agreement are provided as an independent contractor and not
as an employee of Vistana. As an independent contractor, Consultant has the
sole responsibility and control of the manner and means of providing the
services requested. Consultant is retained on a non-exclusive basis and has the
right to perform services for any other company so long as those services do not
violate the provisions of the Resignation Agreement. Consultant will bear the
costs of providing Consultant's services other than those costs specified in
Section 3 of this Agreement. Consultant is solely responsible for any and all
federal, state and local taxes associated with payments made to Consultant
hereunder.
(d) RESTRICTIVE COVENANTS. Vistana and Consultant expressly agree
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that Sections 9, 10 and 11 of the Resignation Agreement are incorporated in this
Agreement by reference and that these terms of the Resignation Agreement apply
to and are part of this Agreement as if specifically set forth herein.
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2. COMPENSATION. Vistana agrees to pay to Consultant twenty-four
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(24) equal consulting payments of $10,417.00 on the 1st day of each month,
beginning on January 1, 1999, such payments to be made irrespective of whether
Vistana requests or Consultant provides the services described in Section 1,
above.
3. REIMBURSEMENT OF EXPENSES. During the term of this Agreement,
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Vistana shall promptly reimburse the Consultant for all reasonable out-of-pocket
expenses, including without limitation, travel (including airfare, hotels and
restaurants), attendance fees for participation in seminars and conferences on
Vistana's behalf, and long-distance telephone expenses, paid or incurred by the
Consultant in the course of the provision of services hereunder, provided that
travel and conference attendance shall be limited to those specific matters with
respect to which Consultant has been engaged to provide services and other
travel and conference attendance that is requested or approved in advance by
Vistana. In addition to such reimbursement, Vistana agrees to pass on to
Consultant (to the extent permitted by the vendor) any group membership or other
bulk rates available to Vistana for any memberships in industry associations
and/or participation in conferences or seminars which Consultant elects to join
or participate in at his own expense. It is also agreed that if Consultant is
requested by Vistana to utilize business travel in fulfillment of providing
consulting services hereunder, such trips may be extended at Consultant's sole
expense for the purpose of furthering Consultant's golf commitments.
4. TERM. This Agreement shall terminate as of the close of business
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on December 31, 2000; provided, however, that Vistana may sooner terminate this
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Agreement and the compensation and other benefits described herein upon written
notice to the Consultant if the Consultant breaches or defaults under the terms
and conditions of Sections 9, 10, or 11 of the Resignation Agreement which is
incorporated into this Agreement by reference.
5. NOTICES. All notices, requests, demands, approvals, directions
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and other communications provided for in this Agreement must be in writing and
shall be (a) personally delivered; (b) transmitted postage prepaid by certified
or registered mail; or (c) sent by receipted overnight express carrier; to the
appropriate party at its address as follows:
(1) If to Vistana or any of the Corporations:
0000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Attn: President
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(2) If to Consultant:
0000 Xxxxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxxxx 00000
Addresses for purposes of notice may be changed from time to time by written
notice sent to the other parties in accordance with this Section 5. Such change
of address notice shall be deemed received upon the earliest of the following to
occur: (a) upon personal delivery; (b) on the third Business Day following the
day sent, if sent by registered or certified U.S. mail; or (c) on the next
Business Day following the day sent, if sent by receipted overnight express
courier.
6. GOVERNING LAW AND VENUE. This Agreement shall be governed by and
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construed in accordance with the laws of the state of Florida. In the event of
any legal or equitable action arising under this Agreement, the venue of such
action shall be exclusively within either the state courts of Florida located in
Orange County, Florida, or the United States District Court for the Middle
District of Florida, Orlando Division, as the case may be, and the parties waive
any other jurisdiction and venue.
7. ATTORNEYS' FEES. In the event any action is instituted for breach
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of this Agreement, the prevailing party shall be entitled to a reasonable
attorneys' fee and costs of action. For purposes hereof, Vistana shall be
deemed to have prevailed in any suit involving a breach or alleged breach by
Consultant of any of the covenants contained in Sections 9, 10, or 11 of the
Separation Agreement, which is incorporated into this Agreement by reference, if
Vistana prevails to any degree in such suit (even if such covenant or covenants
are not enforced to the fullest extent otherwise sought by Vistana).
8. NO WAIVER. No failure or delay on the part of any party to this
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Agreement in exercising any right or power or remedy hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or exercise of
any other right, power or remedy.
9. ASSIGNMENT. No party to this Agreement shall assign its rights
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and/or obligations hereunder without the prior written consent of each of the
other party.
10. ENTIRE AGREEMENT. This Agreement and the simultaneously executed
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Resignation Agreement are intended by the parties as a final expression of their
agreement with respect to the subject matter addressed in the respective
agreements, and the provisions of this Agreement and the Resignation Agreement
supersede all prior agreements and understandings that may previously have
existed between the parties except to the extent otherwise specified in the
Resignation Agreement.
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11. SEVERABILITY. If any provision of this Agreement is, or shall at
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any time be, invalid and unenforceable in any jurisdiction, then, to the fullest
extent permitted by law, (i) the other provisions hereof shall remain in full
force and effect in such jurisdiction, and (ii) the invalidity or
unenforceability of any provision hereof in any jurisdiction shall not affect
the validity or enforceability of such provision in any other jurisdiction.
12. BINDING EFFECT. This Agreement shall be binding upon and inure
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to the benefit of the respective parties hereto, their heirs, legal
representatives, successors and assigns, as the case may be.
13. COUNTERPARTS. This Agreement may be signed in several
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counterparts with the same effect as if the signatures thereto and hereto were
upon the same instrument.
14. HEADINGS. The headings appearing in this Agreement are inserted
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only as a matter of convenience and in no way define, limit, construe or
describe the scope or intent of any provisions of this Agreement or in any way
affect this Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Agreement on
the date first above written.
CONSULTANT
/s/ Xxxxxxx X. Avril
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VISTANA , INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
Title: President
Its Authorized Representative
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SAMPLE
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Month Hours
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January 100
February 100
March 80
April 40
May 40
June 40
July 40
August 40
September 60
October 80
November 80
December 100
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TOTAL 800
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EXHIBIT 1
