EMPLOYMENT AGREEMENT
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THIS EMPLOYMENT AGREEMENT (the "Agreement"), executed on October 23,
1998, is by and between Fairfield Communities, Inc., a Delaware corporation (the
"Company"), and Xxxxx Xxxxxxx ("Executive").
WITNESSETH:
WHEREAS, Executive is Senior Vice President and Chief Operating
Officer, Vacation Ownership Business, of the Company and has made and is
expected to continue to make major contributions to the short- and long-term
profitability, growth and financial strength of the Company;
WHEREAS, the Company desires (a) to assure itself of both present and
future continuity of management and (b) to provide certain minimum termination
benefits for Executive; and
WHEREAS, Executive is willing to render services to the Company on the
terms and subject to the conditions set forth in this Agreement.
NOW, THEREFORE, the Company and Executive agree as follows:
1. Employment. The Company agrees to and does hereby employ Executive
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to perform the duties of Senior Vice President and Chief Operating Officer,
Vacation Ownership Business, of the Company, and Executive accepts such
employment, upon the terms and conditions set forth herein. During the Term
hereof, Executive shall not be engaged in any other employment or business
activities, shall devote his full business time and effort to the Company and
shall not serve as an officer or director of any public company, other than the
Company.
2. Term. The term of this Agreement shall be the period commencing as
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of the date set forth above and continuing thereafter through December 31, 2000
(the "Term"); provided, however, that at the end of such period and each
anniversary date thereafter, the Term will automatically be extended for an
additional year unless, not later than nine months prior to the end of such
period or any such anniversary date, as the case may be, the Company or
Executive shall have given notice that it or Executive, as the case may be, does
not wish to have the Term extended, and further provided, that it is understood
that if Executive remains employed by the Company after the Term, such
employment shall be "at-will" unless different terms are established in writing.
3. Duties and Services.
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(a) Executive agrees to serve the Company as Senior Vice President and
Chief Operating Officer, Vacation Ownership Business, and to devote such working
time as is reasonably necessary for proper performance of the duties and
obligations attaching to such
offices. Executive also agrees to perform from time to time such other executive
services as the Company shall reasonably request, provided that such services
shall be consistent with his position and status as Senior Vice President and
Chief Operating Officer, Vacation Ownership Business. In attending to the
business and affairs of the Company, Executive agrees to serve the Company
faithfully, diligently and to the best of his ability.
(b) The duties and responsibilities of Executive shall be commensurate
with those of the chief operating officer of a major division, group or business
segment of any large, publicly-held corporation similar to the Company, and
shall include, without limitation, the primary responsibility for the sites and
operations of the Vacation Ownership Business of the Company and its various
enterprises.
4. Compensation. As consideration for the services to be rendered
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hereunder by Executive, the Company agrees to pay Executive, and Executive
agrees to accept, payable in accordance with the Company's standard payroll
practices for executives, but payable in not less than monthly installments,
compensation of Three Hundred Fifty Thousand Dollars ($350,000) per annum or
such greater amount as may be determined from time to time by the Board of
Directors or the Compensation Committee of the Board of Directors of the Company
(the "Salary"). Executive's previous base salary was Two Hundred Thousand
Dollars ($200,000) per annum. The foregoing increase in Executive's Salary shall
be retroactively effective to July 1, 1998, with the difference to be paid to
Executive within thirty (30) days following signature of this Agreement by both
parties.
5. Incentive Compensation. The Board of Directors or the Compensation
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Committee of the Board of Directors of the Company may, in its sole discretion,
establish incentive compensation programs applicable to Executive from time to
time during the Term hereof. The incentive compensation program previously
established for 1998 shall remain unaffected by this Agreement, with it being
understood that the bonus potential of such program shall continue to be
calculated based upon a base salary of $200,000 per annum.
6. Termination for Cause.
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(a) In the event that the Company provides Executive with written
notice terminating his employment for "Cause", as defined in Section 6(b), all
compensation to Executive pursuant to Section 4 in respect of periods after such
discharge shall terminate immediately upon such termination, and the Company
shall have no further obligations with respect thereto, nor shall the Company be
obligated to pay Executive termination pay under Section 8 or any accrued but
unpaid incentive compensation.
(b) For the purposes of this Agreement, "Cause" shall mean (i) the
commission by Executive of an act of fraud, embezzlement, theft or willful
breach of a fiduciary duty to the Company (including the unauthorized disclosure
of confidential or proprietary material information of the Company); (ii) the
commission by Executive of a breach of any material covenant, provision, term,
condition, understanding or undertaking set forth in this Agreement; (iii) the
commission by Executive (other than in Executive's capacity as an agent of the
Company) of a crime constituting a felony under applicable law (or a plea of
nolo contendere in lieu thereof); (iv) the exposure of the Company to any
criminal liability substantially caused by the conduct of Executive which
results, or may reasonably be expected to result, in a material adverse effect
upon the Company's business, operations, financial condition or results of
operations or is reasonably expected to cause a material difficulty in obtaining
registration for the Company's products; (v) the exposure of the Company to any
civil liability caused by Executive's unlawful harassment in employment; (vi)
any habitual absenteeism, gross negligence, bad faith or willful misconduct by
Executive in the performance of Executive's duties to the Company which conduct
results in a material detriment to the Company; (vii) the continued, repeated,
intentional and willful refusal to perform the duties associated with
Executive's position with the Company, which is not cured within 15 days
following notice to Executive; or (viii) Executive's habitual abuse of alcohol
or any controlled substance or Executive's reporting to work under the influence
of alcohol or a controlled substance (other than those for which Executive is
taking under a current prescription).
7. Termination Without Cause. Either the Company or Executive may
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terminate Executive's employment without Cause, but only upon delivery to the
other party of a written notice of termination specifying a termination date, in
the case of a notice by Executive, of at least 30 days, but not more than 60
days, after the date of delivery of such notice. Notwithstanding the Term of
this Agreement having a duration through December 31, 2000, subject to
extension, and Section 4 hereof relating to the annual salary to be paid to
Executive during Executive's employment by the Company, nothing in this
Agreement should be construed as conferring any right of Executive to be
employed by the Company for a fixed or definite term. Subject to Section 8
hereof, Executive agrees that the Company may dismiss Executive under this
Section without regard to (a) any general or specific policies (whether written
or oral) of the Company relating to the employment or termination of employment
of Company employees; or (b) any statements made to Executive, whether made
orally or contained in any document or instrument, pertaining to Executive's
relationship with the Company. Notwithstanding anything to the contrary
contained herein, Executive's employment by the Company is not for any specified
term, is at-will and may be terminated by the Company pursuant to this Section
at any time by delivery of the notice referred to herein, for any reason,
without any liability whatsoever, except with respect to the payment provided
for in Section 8.
8. Termination Compensation.
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(a) If, during the Term, Executive's employment is terminated (i) for
any reason other than (A) pursuant to Section 6(a), (B) by reason of death, (C)
by reason of "Disability" or (D) by notice by Executive pursuant to Section 7
hereof or (ii) by Executive due to "Constructive Discharge", then Executive
shall receive termination pay in an amount equal to 150% of the highest
annualized rate of Executive's Salary prior to the date of termination. Such
termination pay shall be payable in accordance with the Company's standard
payroll practices for executives, but payable in not less than monthly
installments. The obligation of the Company to make continuing payments of
termination pay to Executive is expressly conditioned upon Executive complying
in all respects, and continuing to comply in all respects, with Executive's
obligations under Sections 9, 10, 11 and 16 hereof following the termination of
Executive's employment.
(b) For the purposes of this Agreement, "Constructive Discharge" shall
mean:
(i) any reduction in Salary;
(ii) a material reduction in Executive's job function, duties
or responsibilities, or a similar change in Executive's reporting
relationships, provided, however, that Executive is aware that the
Company may from time to time change the current executive structure so
that the role of Chief Executive Officer and President may be held by
two different persons, and that someone may be designated as Chief
Operating Officer for the Company as a whole, and that it shall not be
considered a "Constructive Discharge" for Executive to report to any of
the Chairman, the President, the Chief Executive Officer or the Chief
Operating Officer of the Company;
(iii) a required relocation of Executive of more than 35 miles
from Executive's current job location, provided, however, that it is
understood that Executive's job responsibilities will require that he
travel extensively to other locations on the Company's business; or
(iv) any breach of any of the material terms of this Agreement
by the Company which is not cured within 15 days following written
notice thereof by Executive to the Company;
provided, however, that the term "Constructive Discharge" shall not include a
specific event described in the preceding clause (i), (ii), (iii) or (iv) unless
Executive actually terminates his employment with the Company within 60 days
after the occurrence of such event.
(c) The amount of compensation payable pursuant to this Section 8 is
not subject to any deduction (except for withholding taxes), reduction, offset
or counterclaim, and the Company may not give advance notice of termination in
lieu of the payment provided for in this Section 8.
(d) For purposes of this Agreement, "Disability" shall mean an illness
or accident which prevents Executive, for a continuous period lasting six
months, from performing the material job duties normally associated with his
position. In the event that any disagreement or dispute arises between the
Company and Executive as to whether Executive has incurred a "Disability", then,
in any such event, Executive shall submit to a physical and/or mental
examination by a competent and qualified physician licensed under the laws of
the State of Florida who shall be mutually selected by the Company and
Executive, and such physician shall make the determination of whether Executive
suffers from any "Disability". In the absence of fraud or bad faith, the
determination of such physician as to Executive's condition at such time shall
be final and binding upon both the Company and Executive. The entire cost of any
such examination shall be borne solely by the Company.
(e) Notwithstanding anything to the contrary contained in this
Agreement, if Executive is a "disqualified individual" (as that term is defined
in Section 280G of the Internal Revenue Code of 1986, as amended (the "Code") or
any successor provision thereto) and if any portion of the payments provided for
in Section 8 hereof would be an "excess parachute payment" (as that term is
defined in Section 280G of the Code or any successor provision thereto) but for
the application of this sentence, then the amount of such payments otherwise
payable to Executive under this Agreement shall be reduced to the minimum extent
necessary (but in no event to less than zero) so that no portion of such
payments, as so reduced, constitutes an excess parachute payment, provided,
that, any separate compensation arrangements extended to Executive by the
Company which involve non-cash compensation shall be reduced first in priority
before any reduction in payment hereunder. The Company shall bear responsibility
for performing the necessary calculations under this subsection and shall
indemnify Executive, on a grossed-up, after tax (federal, state and local)
basis, for any error or omission on the part of the Company which results in
additional tax liability to Executive, within five business days following
determination of the amount of indemnity owed to Executive.
9. Termination Obligations.
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(a) Executive hereby acknowledges and agrees that all personal property
and equipment, including, without limitation, all computers, books, manuals,
records, reports, notes, contracts, lists, blueprints, and other documents, or
materials, or copies thereof (including computer files), and all other
proprietary information relating to the business of the Company, furnished to or
prepared by Executive in the course of or incident to Executive's employment,
belongs to the Company and shall be promptly returned to the Company within ten
days after Executive's last work day. Following Executive's last work day,
Executive will not retain any written or other tangible material containing any
proprietary information of the Company.
(b) Effective as of Executive's last work day, Executive shall be
deemed to have resigned from all offices and directorships then held with the
Company or any subsidiaries or affiliates of the Company. Executive shall
provide the Company with signed letters of resignation from all such positions.
(c) Notwithstanding anything herein to the contrary, the covenants and
agreements of Executive contained in Sections 9, 10, 11, 12, 16, 17, 21 and 22
shall survive termination of Executive's employment by the Company and the
termination of this Agreement, whether or not for "Cause".
(d) In exchange for the Company entering into this Agreement, and as a
condition precedent to payment of any amounts owed to Executive under Section 8
hereof, Executive agrees that, at the time of Executive's resignation or
termination from the Company, Executive will execute a release reasonably
acceptable to the Company of all liability of the Company and its subsidiaries
and their officers, shareholders, employees, directors and affiliates to
Executive in connection with or arising out of Executive's employment by the
Company, except with respect to (i) any then-vested rights under the Company's
stock warrant or stock option plans, (ii) any then-vested rights under the
Company's employee benefit plans (including Executive's right,
if any, to continued coverage under the Company's medical plan under COBRA and
for payment at termination of any accrued but unused vacation time in accordance
with the Company's usual policies), (iii) rights of indemnification under the
Company's Bylaws and directors' and officers' liability coverages, (iv) any
amounts which may be payable to Executive pursuant to Section 8 and (v) any
claims Executive may have pursuant to the Company's disability and workmen's
compensation insurance programs.
10. Covenant Not to Compete. Unless the Company's Board of Directors
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determines that any of the following conduct is in the Company's best interests,
except with respect to the possible development and sale of timeshare and/or
lots around an eighteen hole golf course known as "Bull Run Country Club"
located in or about Haymarket, Virginia, during the Term of this Agreement and
for the Non-Compete Period, Executive shall not:
(a) directly or indirectly for himself or for any other person or
entity, engage, whether as owner, investor, creditor, consultant, partner,
shareholder, director, financial backer, agent, employee or otherwise, in the
business, enterprise or employment of owning, operating, marketing or selling a
time-share, vacation plan, vacation ownership or interval ownership project
within the Territory; or
(b) directly or indirectly for himself or for any other person or
entity, sell, or otherwise procure purchasers for, any time-share, vacation
plan, vacation ownership or interval ownership project within the Territory; or
(c) have any business (as owner, investor, creditor, consultant,
partner, debtor or otherwise) or be employed in any capacity by a person or
entity that is engaged, directly or indirectly, in (i) operating, or providing
sales, marketing or development services to, a time-share, vacation plan,
vacation ownership or interval ownership project within the Territory, or (ii)
in an activity formed or entered into for the primary purpose of engaging in a
time-share, vacation plan, vacation ownership or interval ownership business
within the Territory; or
(d) directly or indirectly for himself or for any other person or
entity become employed in any capacity by or otherwise render services in any
capacity to any national enterprise having time-share, vacation plan, vacation
ownership or interval ownership activities, including, without limitation, Xxxx
Disney Company, Hilton Hotels Corporation, Hyatt Corporation, Four Seasons
Hotels and Resorts, Inc., Marriott International, Inc., Inter-Continental Hotels
and Resorts, Inc., Promus Hotels, Inc., Sunterra Corporation or Vistana, Inc. or
any of their respective subsidiaries or affiliates; or
(e) directly or indirectly, for himself, or for any other person or
entity, pursue or consummate or otherwise interfere with any Existing Project;
or
(f) directly or indirectly, for himself, or for any other person or
entity, pursue or consummate or otherwise interfere with any Prospective
Project; or
(g) directly or indirectly, for himself, or for any other person or
entity, become employed in any capacity by or otherwise render services in any
capacity to any other person or entity (other than the Company and its
subsidiaries and affiliates) described in clause (b) of the definition of
Prospective Project.
Notwithstanding the foregoing, Executive may purchase stock as a
stockholder in any publicly traded company, including any company engaged in the
timeshare or vacation ownership business; provided, however, that Executive may
not own (individually or collectively with Executive's family members, trusts
for the benefit of Executive's family members and affiliates of Executive) more
than 5% of any company (other than the Company).
"Existing Project" means a time-share, vacation plan, vacation
ownership or interval ownership resort or project which the Company or any of
its subsidiaries or affiliates owns, operates, is under contract to provide
property management services, is part of the Company's FairShare Plus
reservation system or has commenced to develop, acquire or otherwise undertake
as of the date Executive's employment with the Company terminates.
"Non-Compete Period" shall mean the period commencing on the date
Executive's employment with the Company terminates (regardless of the reason for
such termination of employment) and ending on (a) the expiration of the Term, in
case of the termination of Executive's employment by the Company immediately
following the expiration of the Term; provided, however, such period will be
extended to the first anniversary of the expiration of the Term in the event
that the Company notifies Executive in writing that it will continue payment of
Executive's Salary (in accordance with the Company's payroll policies) for 12
months after the termination of Executive's employment with the Company; or (b)
the first anniversary of the termination of Executive's employment with the
Company in case of (i) the termination of Executive's employment by the Company
for "Cause" pursuant to Section 6(a), (ii) the termination of Executive's
employment by either the Company without "Cause" or by the Executive, in either
case, pursuant to Section 7 and (iii) the termination of Executive's employment
by Executive for "Constructive Discharge" pursuant to Section 8(a)(ii).
"Prospective Project" means (a) a prospective time-share, vacation
plan, vacation ownership or interval ownership resort or project with respect to
which Executive has been made aware or has been advised prior to the termination
of his employment with the Company that the Company or any of its subsidiaries
or affiliates is considering developing or undertaking and (b) any person or
entity, including its respective affiliates, with respect to which Executive has
been made aware or has been advised prior to the termination of his employment
by the Company that the Company or any of its subsidiaries or affiliates has
commenced to evaluate or negotiate with in respect of any transaction involving
(i) the acquisition by the Company or any of its subsidiaries or affiliates of
all or a portion of such person or entity or its consolidated assets or (ii) the
acquisition by such person or entity (or its affiliates) of all or a portion of
the Company or its consolidated assets.
"Territory" means the total geographic area located within a 150-mile
radius of each Existing Project and each Prospective Project.
In light of the substantial remuneration provided to Executive
hereunder and Executive's management position with the Company, Executive hereby
specifically acknowledges and agrees that the provisions of this Section 10
(including, without limitation, its time and geographic limits), as well as the
provisions of Sections 9, 11 and 12, are reasonable and appropriate, and that
Executive will not claim to the contrary in any action brought by the Company to
enforce any of such provisions.
11. Covenant Against Solicitation of Employees and Contractors.
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Executive shall not, directly or indirectly or on behalf of any person,
organization, business or enterprise with which Executive may become associated
in any capacity (whether as an employee, officer, director, consultant, investor
(debt or equity) or otherwise), (a) during the Term of this Agreement and for a
period of three years from the date Executive ceases to be employed by the
Company (regardless of the reason for such change in Executive's employment
status), solicit or cause or suggest there be solicited for employment or as an
independent contractor, consultant or other service provider, or hire, any
people then serving, or serving within the 180 days prior thereto, as employees
of the Company or any of its subsidiaries or affiliates or (b) during the Term
of this Agreement and for a period of one year from the date Executive ceases to
be employed by the Company (regardless of the reason for such change in
Executive's employment status), contact or solicit or attempt to establish a
commercial relationship with any of the Company's or its subsidiaries' or
affiliates' outside providers of information systems, marketing services, OPC
locations or sales prospects.
12. Remedies For Breach. It is understood and agreed by the parties
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that no amount of money would adequately compensate the Company for damages
which the parties acknowledge would be suffered as a result of a violation by
Executive of the covenants contained in Sections 9, 10, 11 and 16 hereof, and
that, therefore, the Company shall be entitled, upon application to a court of
competent jurisdiction, to obtain injunctive relief (without the need to post
bond or prove irreparable injury or inadequate remedy at law) to enforce the
provisions of Sections 9, 10, 11 or 16, which injunctive relief shall be in
addition to any other rights or remedies available to the Company. The
provisions of this Section 12 shall survive the termination of this Agreement.
13. Life Insurance. The Company shall, at its sole expense (up to an
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initial maximum annual premium of $5,000), obtain and maintain in full force and
effect term life insurance on Executive's life in an amount equal to twice
Executive's Salary, payable to a beneficiary of Executive's choice.
14. Other Benefits.
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(a) Except as expressly provided herein, this Agreement shall not:
(i) be deemed to limit or affect the right of Executive to
receive other forms of additional compensation or to participate in any
insurance, retirement, disability, profit-sharing, stock purchase,
stock option, stock appreciation rights, cash or stock bonus
or other plan or arrangement or in any other benefits now or hereafter
provided by the Company or any of the Company's subsidiary or
affiliated companies for its employees; or
(ii) be deemed to be a waiver by Executive of any vested
rights which Executive may have or may hereafter acquire under any
employee benefit plan or arrangement of the Company or any of the
Company's subsidiary or affiliated companies.
(b) It is contemplated that, in connection with his employment
hereunder, Executive may be required to incur reasonable business, entertainment
and travel expenses. The Company agrees to reimburse Executive in full for all
reasonable and necessary business, entertainment and other related expenses,
including travel expenses, incurred or expended by him incident to the
performance of his duties hereunder, upon submission by Executive to the Company
of such vouchers or expense statements satisfactorily evidencing such expenses
as may be reasonably requested by the Company.
(c) It is understood and agreed by the Company that during the term of
Executive's employment hereunder, he shall be entitled to annual paid vacations
(taken consecutively or in segments), the length of which shall be consistent
with the effective discharge of Executive's duties and the general customs and
practices of the Company applicable to its executive officers.
15. No Mitigation Obligation. The Company hereby acknowledges that it
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will be difficult and may be impossible (a) for Executive to find reasonably
comparable employment following the date of termination and (b) to measure the
amount of damages which Executive may suffer as a result of termination of
employment hereunder. Accordingly, the payment of the termination compensation
by the Company to Executive in accordance with the terms of this Agreement is
hereby acknowledged by the Company to be reasonable and will be liquidated
damages, and Executive will not be required to mitigate the amount of any
payment provided for in this Agreement by seeking other employment or otherwise,
nor will any profits, income, earnings or other benefits from any source
whatsoever create any mitigation, offset, reduction or any other obligation on
the part of Executive hereunder or otherwise.
16. Confidentiality.
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(a) Recognizing that the knowledge and information about the business
methods, systems, plans and policies of the Company and of its affiliated
companies which Executive has heretofore and shall hereafter receive, obtain or
establish as an employee of the Company or its affiliated companies are valuable
and unique assets of the Company and its affiliated companies, Executive agrees
that he shall not (otherwise than pursuant to his duties while an employee)
disclose or use (whether for himself or, directly or indirectly, for any person,
organization, business or enterprise with which Executive may become associated
in any capacity (whether as an employee, officer, director, consultant, investor
(debt or equity) or otherwise)), without the express prior written consent of
the Chief Executive Officer of the Company, any knowledge or information not
readily available to the general public pertaining to the Company or its
affiliated companies (including specifically any information relating to the
Company's points based
product or reservation system, lists of current or prospective clients,
marketing and other service providers, business plans and proposals, current or
prospective business opportunities, financial records, research and development
and marketing strategies and programs (including present and prospective OPC
locations and the terms of leases of similar arrangements)), or any of their
business, personnel or plans, for any reason or purpose whatsoever, unless
required by law or legal process. In the event Executive is required by law or
legal process to provide documents or disclose information, he shall take all
reasonable steps to maintain the confidentiality of such documents and
information, including notifying the Company as soon as reasonably practical in
advance of such disclosure and giving it an opportunity to seek a protective
order, at its sole cost and expense.
(b) The provisions of this Section 16 shall survive the expiration or
termination of this Agreement, without regard to the reason therefor, for a
period of two years from the earlier of (i) expiration of the Term or (ii)
termination of Executive's employment with the Company.
17. Legal Fees and Expenses. In the event a dispute arises between the
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parties hereto and suit is instituted, the prevailing party in such litigation
shall be entitled to recover reasonable attorneys' fees and other costs and
expenses from the non-prevailing party, whether incurred at the trial level or
in any appellate proceeding. For purposes hereof, the Company shall be deemed to
have prevailed in any suit involving a breach or alleged breach by Executive of
any of the covenants contained in Sections 9, 10 and 11 above if the Company
prevails to any degree in such suit (even if such covenant or covenants are not
enforced to the fullest extent sought by the Company).
18. Withholding of Taxes. The Company may withhold from any amounts
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payable under this Agreement all federal, state, city or other taxes as the
Company is required to withhold pursuant to any law or government regulation or
ruling.
19. Successors and Binding Agreement.
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(a) The Company will require any successor (whether direct or indirect,
by purchase, merger, consolidation, reorganization or otherwise) to all or
substantially all of the business or assets of the Company, by agreement in form
and substance reasonably satisfactory to Executive, expressly to assume and
agree to perform this Agreement in the same manner and to the same extent the
Company would be required to perform if no such succession had taken place. This
Agreement will be binding upon and inure to the benefit of the Company and any
successor to the Company, including, without limitation, any persons acquiring
directly or indirectly all or substantially all of the business or assets of the
Company whether by purchase, merger, consolidation, reorganization or otherwise
(and such successor shall thereafter be deemed the "Company" for the purposes of
this Agreement), but will not otherwise be assignable, transferable or delegable
by the Company.
(b) This Agreement will inure to the benefit of and be enforceable by
Executive's personal or legal representatives, executors, administrators,
successors, heirs, distributees and legatees.
(c) This Agreement is personal in nature and neither of the parties
hereto shall, without the consent of the other, assign, transfer or delegate
this Agreement or any rights or obligations hereunder. Without limiting the
generality or effect of the foregoing, Executive's right to receive payments
hereunder will not be assignable, transferable or delegable, whether by pledge,
creation of a security interest or otherwise, other than by a transfer by
Executive's will or by the laws of descent and distribution and, in the event of
any attempted assignment or transfer contrary to this Section 19(c), the Company
shall have no liability to pay any amount so attempted to be assigned,
transferred or delegated.
20. Notices. For all purposes of this Agreement, all communications,
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including, without limitation, notices, consents, requests or approvals,
required or permitted to be given hereunder will be in writing and will be
deemed to have been duly given when hand delivered or dispatched by electronic
facsimile transmission (with receipt thereof orally confirmed); or five business
days after having been mailed by United States registered or certified mail,
return receipt requested, postage prepaid; or three business days after having
been sent by a nationally recognized overnight courier service such as Federal
Express, UPS or Purolator, addressed to the Company (to the attention of the
President and Chief Executive Officer of the Company, at 00000 Xxxxxxxxx Xxxxxx
Xxxxx, Xxxxxx Xxxx, Xxxxxxxx 00000, with a copy to the General Counsel of the
Company, at 0000 Xxxxxxxxx Xxxxxx, Xxxxx 000, Xxxxxxx, Xxxxxxx 32819), and to
Executive at his principal residence located at 0000 Xxxx Xxxxx Xxxxx, Xxxxxxx,
Xxxxxxx 00000, or to such other address as any party may have furnished to the
other in writing and in accordance herewith, except that notices of changes of
address shall be effective only upon receipt.
21. Governing Law and Venue. The validity, interpretation, construction
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and performance of this Agreement will be governed by and construed in
accordance with the substantive laws of the State of Florida, without giving
effect to the principles of conflict of laws of such State. 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, and the parties waive any other jurisdiction and
venue.
22. Validity and Construction. If any provision of this Agreement or
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the application of any provision hereof to any person or circumstances is held
invalid, unenforceable or otherwise illegal, the remainder of this Agreement and
the application of such provision to any other person or circumstances will not
be affected, and the provision so held to be invalid, unenforceable or otherwise
illegal will be reformed to the extent (and only to the extent) necessary to
make it enforceable, valid or legal; provided, however, that the Company shall
have no obligation to pay the termination pay provided for in Section 8 hereof
(and Executive shall refund the gross amount of such termination pay which may
have been previously paid) in the event that either of the covenant not to
compete provided for in Section 10 hereof or the covenant against solicitation
of employees and contractors provided for in Section 11 hereof is held to be
unenforceable or otherwise given limited effect, in whole or in any material
part.
The parties have participated jointly in the negotiation and drafting
of this Agreement. In the event of an ambiguity or a question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly
by the parties hereto and no presumption or burden of proof shall arise favoring
or disfavoring either party by virtue of the authorship of any of the provisions
of this Agreement.
23. Miscellaneous. No provision of this Agreement may be modified,
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waived or discharged unless such waiver, modification or discharge is agreed to
in writing signed by Executive and the Company. No waiver by either party hereto
at any time of any breach by the other party hereto or compliance with any
condition or provision of this Agreement to be performed by such other party
will be deemed a waiver of similar or dissimilar provisions or conditions at the
same or at any prior or subsequent time. No agreements or representations, oral
or otherwise, expressed or implied with respect to the subject matter hereof
have been made by either party which are not set forth expressly in this
Agreement. References to Sections are references to Sections of this Agreement.
24. Counterparts. This Agreement may be executed in one or more
------------
counterparts, each of which shall be deemed to be an original but all of which
together will constitute one and the same agreement.
25. Warranty. Executive warrants and represents that he is not a party
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to any agreement, contract or understanding, whether of employment or otherwise,
which would in any way restrict or prohibit him from undertaking or performing
employment in accordance with the terms and conditions of this Agreement.
26. Approval. By executing this Agreement, the Company acknowledges
--------
that this Agreement has been approved by the Compensation Committee of the Board
of Directors of the Company and that no other approvals are required as a
condition precedent for this Agreement to become effective.
27. Prior Agreement. This Agreement shall in all respects supersede all
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previous agreements providing severance pay benefits, whether written or oral,
between Executive and the Company, including any existing or future adopted
Company policies or procedures with respect to separation, severance or
termination pay.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement.
FAIRFIELD COMMUNITIES INC.
By:/s/X.X. XxXxxxxxx
----------------------------
X. X. XxXxxxxxx
President and
Chief Executive Officer
/s/Xxxxx Xxxxxxx
----------------------------
Xxxxx Xxxxxxx, Individually
