RESIGNATION AGREEMENT
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This Resignation Agreement ("Agreement") is entered into this 30th day of
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September, 1998 by Xxxxxxx X. Avril ("Executive") and Vistana, Inc. ("Vistana"),
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with each party intending to be bound by it. In consideration of the mutual
covenants and promises set forth below, the parties agree as follows:
1. RESIGNATION. Executive will resign from employment with Vistana
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effective as of the close of business on December 31, 1998 (the "Effective
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Date"). Executive and Vistana acknowledge that Executive's last day of
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employment is the Effective Date, and that Executive hereby resigns as an
officer of Vistana and as an officer of all related Vistana entities as of that
date. This date shall apply to any and all documents associated with Executive's
relationship with the Company where effective dates of termination of employment
are required to be identified. Executive shall continue to receive his regular
salary and existing employee benefits through the Effective Date and shall also
be compensated for any earned, unused vacation hours due to him as of December
31, 1998. Moreover, by remaining employed through the Effective Date, Executive
shall be eligible to receive a bonus under the existing Vistana bonus program of
up to 60% of Executive's current base salary. The amount of such bonus will be
determined by Vistana's Board Compensation Committee in its good faith
discretion taking into account overall success of the Company and individual
contributions by Executive. Such bonus will be payable on January 31, 1999, or
as soon thereafter that such bonuses are paid to Xxxxxxx X. Xxxxxxx, Xxxxxxx X.
Xxxxx, and Xxxxxxx X. Xxxxxx. Executive shall also retain ownership after the
Effective Date of the home facsimile equipment, cellular telephone, and Palm
Pilot which were provided to him by Vistana.
2. CONSULTING AGREEMENT. Simultaneously with the execution of this
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Agreement, Executive and Vistana are entering into a Consulting Services
Agreement ("Consulting Agreement") which shall take effect on January 1, 1999.
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3. HEALTH INSURANCE. Beginning upon the Effective Date and continuing
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through June 30, 2000, Vistana shall pay all premiums necessary to continue in
effect, with such insurance company as shall be otherwise utilized by Vistana
for similar insurance for its senior management employees, insurance covering
medical and dental care of Executive to the same extent (which includes
Executive's spouse and dependents) as was provided to Executive by Vistana
immediately prior to Executive's resignation from Vistana, or if such insurance
coverage is modified for Vistana's senior executives, the same coverage as it
provided for such executives; provided, however, that if Vistana is unable to
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provide Executive with the ability to participate in Vistana's group medical
insurance program, Vistana shall reimburse Executive for the cost of equivalent
group plan "family coverage" to the same extent now provided by Vistana.
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4. ACKNOWLEDGMENT. Executive acknowledges that the commitment of Vistana
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to pay the salary, bonus and earned vacation time specified in Section 1, to
provide the insurance coverage described in Section 3, and to pay the
compensation specified in the Consulting Agreement referenced in Section 2,
fully discharges and releases all responsibilities and obligations of Vistana
under the Executive's Employment Agreement with Vistana dated December 27, 1996,
and its revised Schedule B effective January 31, 1998 ("Employment Agreement"),
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and that this Agreement expressly terminates and supersedes the Employment
Agreement which shall be null, void and of no further force and effect upon the
execution of this Agreement; provided, however, that Executive's estate shall be
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eligible to receive the death benefit specified in Section 8(b) of the
Employment Agreement in the event Executive dies prior to the Effective Date.
5. OPTIONS AND ADDITIONAL REMUNERATION.
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(a) OPTIONS. Executive will stop vesting in stock options as of the
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close of business on December 31, 1998, and all unvested options shall be
forfeited as of that date. All vested company granted options shall continue to
be exercisable for three (3) months after the termination of the Consulting
Services Agreement. Attached hereto for reference purposes are the following
documents: Vistana Employee Non-qualified Stock Option Agreement (Exhibit A);
Vistana Stock Plan (Exhibit B); Shareholder Option Agreement (Exhibit C);
Registration Rights Agreement (Exhibit D); and Joinder to Registration Rights
Agreement (Exhibit E).
(b) DEFERRED COMPENSATION. Executive shall be entitled to receive
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previously earned special compensation in the amount of $500,000.00 on February
27, 1999, in accordance with the attached KEEP payment letter dated December 27,
1996 (Exhibit F).
6. RELEASE. In consideration of the payments and options described
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herein, the Consulting Agreement referenced in Section 2, and the other
consideration provided by this Agreement, Executive voluntarily and knowingly
releases and waives all rights and claims, both known and unknown, that
Executive may have against Vistana, its related companies, officers, directors,
agents and employees, regarding any aspect of Executive's employment with or
resignation from Vistana occurring on or before the date of this Agreement or
arising out of the Employment Agreement. These claims include, but are not
limited to, rights and claims arising under Title VII of the Civil Rights Act of
1964, the Americans with Disabilities Act, the Florida Civil Rights Act, any
other federal, state or local statutory or common law claims, and any and all
claims for compensation of any kind under the Employment Agreement. This release
does not encompass claims arising from the non-performance of this Resignation
Agreement. In like fashion, Vistana voluntarily and knowingly releases and
waives all rights and claims, both known and
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unknown, that Vistana may have against Executive regarding any aspect of
Executive's employment with or resignation from Vistana occurring on or before
the date of this Agreement or arising out of the Employment Agreement.
7. NO CLAIMS. Executive represents that Executive has no suits, claims,
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charges, complaints or demands of any kind currently pending against Vistana,
its related companies, officers, directors, agents or employees, with any local,
state or federal court or administrative, investigative, civil rights or other
agency or board, based upon events occurring before and up to the date of the
execution of this Agreement. Executive also agrees that Executive will not in
the future file, assist, encourage, aid or participate (unless compelled by
legal process) in any suit, claim, charge, complaint, investigation or demand of
any kind against Vistana, its related companies, officers, directors, agents or
employees, based upon any facts or events, known or unknown, which have occurred
at any time prior to the date of this Agreement. Executive understands that if
this Agreement were not signed, Executive would have the right to voluntarily
assist other individuals or entities in bringing such claims. Executive hereby
waives that right and agrees that Executive will not provide any such
assistance. Vistana represents that it has no suits, claims, charges,
complaints or demands of any kind currently pending against Executive based upon
events occurring before and up to the date of the execution of this Agreement.
8. CONFIDENTIALITY OF AGREEMENT. Executive agrees not to disclose the
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terms of this Agreement to any individual or entity other than to Executive's
attorney, Executive's accountant or Executive's spouse. At the time Executive
discloses the terms to them, Executive agrees to communicate to these persons
that they must keep the terms of the Agreement strictly confidential. Vistana
agrees not to disclose the terms of this Agreement except to the extent required
in the conduct of its business. The terms of this Resignation Agreement may be
disclosed in any enforcement proceeding concerning this Resignation Agreement or
the Consulting Services Agreement.
9. COVENANT NOT TO COMPETE.
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(a) COVENANT. From the Effective Date until December, 31, 2001, or,
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alternatively, until December 31, 2000 in the event Xxxxxxx X. Xxxxxxx, Xx., or
Xxxxxxx X. Xxxxx no longer jointly share or neither individually occupies the
position of Chief Executive Officer of Vistana or any successor entity,
whichever is earlier (the "Non-Compete Period"), Executive shall not:
i) directly or indirectly for Executive 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 timeshare, vacation plan, vacation ownership or
interval ownership project within
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the Territory (as defined below); or
ii) directly or indirectly for Executive or for any other
person or entity sell, or otherwise procure purchasers for, any timeshare,
vacation plan, vacation ownership or interval ownership project within the
Territory; or
iii) 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 or that proposes to engage or is
evaluating whether to engage, directly or indirectly, in (1) operating, or
providing sales, marketing or development services to, a timeshare,
vacation plan, vacation ownership or interval ownership project within the
Territory, or (2) in an activity formed or entered into for the primary
purpose of engaging in a timeshare, vacation plan, vacation ownership or
interval ownership business within the Territory; or
iv) directly or indirectly for Executive 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 the following companies and their affiliates:
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., Fairfield
Communities, Inc., Sunterra Corp., Silverleaf Resorts, Inc., Starwood
Hotels and Resorts, Bluegreen Corp., or Trendwest Resorts, Inc., or any of
their respective Affiliates; provided, however, that (subject to the non-
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disclosure provisions of this Agreement) the foregoing is not intended to
limit Executive's participation in industry meetings, conferences and other
programs of an informational nature; or
v) directly or indirectly for Executive or for any other
person or entity pursue, consummate or otherwise interfere with any
Existing Project (as defined below); or
vi) directly or indirectly for Executive or for any other
person or entity pursue, consummate or otherwise interfere with any
Prospective Project (as defined below) or directly or indirectly, for
Executive 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 Vistana and its 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
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(individually or collectively with Executive's family members and affiliates)
more than 5% of any
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company (other than Vistana, Inc.) engaged in the timeshare or vacation
ownership business.
(b) ACKNOWLEDGEMENT. In light of the substantial remuneration
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provided to Executive hereunder, and as required in the accompanying Consulting
Services Agreement, Executive hereby specifically acknowledges and agrees that
the provisions of this Section 9 (including, without limitation, its time and
geographic limits), as well as the provisions of Sections 10 and 11, below, are
reasonable and appropriate, and that Executive will not claim to the contrary in
any action brought by Vistana to enforce any of such provisions. Moreover, it is
expressly acknowledged and agreed as between Executive and Vistana that the
noncompetition covenant contained in this Section 9 is reasonable and necessary
to protect the legitimate business interests of Vistana. These legitimate
business interests may include, but are not limited to:
(i) Trade secrets of Vistana that Executive has obtained
and may obtain in the future in providing services under the Consulting
Agreement;
(ii) Confidential business information of Vistana, as set
forth in Section 10, below, that Executive has obtained and may obtain in
the future in providing services under the Consulting Agreement, which
otherwise does not qualify as "trade secrets" as defined in the Florida
Uniform Trade Secrets Act, Chapter 688, Florida Statutes;
(iii) Substantial business relationships which Executive has
developed with specific prospective or existing customers, clients and
representatives of Vistana, and may in the future develop in providing
services under the Consulting Agreement;
(iv) Customer or client goodwill that has been generated
over time by Vistana's ongoing business by way of its trade name in
specific market areas that are targeted by Vistana; and
(v) Specialized training concerning Vistana's products,
services, business practices and strategies to which Executive has been
exposed while in the employ of Vistana and to which he may be exposed in
providing services under the Consulting Agreement.
10. CONFIDENTIAL INFORMATION AND OWNERSHIP OF PROPERTY.
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(a) CONFIDENTIAL INFORMATION. Executive agrees to use all
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Confidential Information (as defined below) solely in connection with the
performance of services for or on behalf of Vistana and its Affiliates.
Executive shall not, during the term of this Agreement, or at any time after the
termination of this Agreement, in any manner, either
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directly or indirectly, (i) disseminate, disclose, use or communicate any
Confidential Information to any person or entity, regardless of whether such
Confidential Information is considered to be confidential by third parties, or
(ii) otherwise directly or indirectly misuse any Confidential Information;
provided, however, that none of the provisions of this Section 9 shall apply to
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disclosures made for valid business purposes of Vistana and its Affiliates and
provided further that Executive shall not be obligated to treat as confidential
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any Confidential Information that (x) was publicly known at the time of
disclosure to Executive; (y) becomes publicly known or available thereafter
other than by means in violation of this Agreement or any other duty owned to
Vistana or any of its Affiliates by any person or entity; or (z) is lawfully
disclosed to Executive by a third party. Notwithstanding the foregoing,
Executive shall be permitted to disclose Confidential Information to the extent
required to enforce Executive's rights hereunder in any litigation arising
under, or pertaining to, this Agreement and the Consulting Services Agreement;
provided, however, that Executive shall give prior written notice to Vistana of
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any such disclosure so that Vistana may have an opportunity to protect the
confidentiality of such Confidential Information in such litigation.
(b) OWNERSHIP OF PROPERTY. Executive agrees that all works of
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authorship developed, authored, written, created or contributed to during
Executive's employment by Vistana (which for this purpose includes Vistana and
all Affiliates of Vistana) for the benefit of Vistana (which for this purpose
includes Vistana and all Affiliates of Vistana), whether solely or jointly with
others, shall be considered works-made-for-hire. Executive agrees that such
works shall be the sole and exclusive property of Vistana (or an appropriate
Affiliate of Vistana) and that all right, title and interest therein or thereto,
including all intellectual property rights existing or obtained in connection
therewith, shall likewise be the sole and exclusive property of Vistana (or such
other appropriate Affiliate of Vistana). Executive agrees further that, in the
event that any such work is not considered to be work-made-for-hire by operation
of law, Executive will immediately, and without further compensation, assign all
of Executive's right, title and interest therein to Vistana (or any Affiliate of
Vistana which it may designate), its successors and assigns. At the request and
expense of Vistana, Executive agrees to perform in a timely manner such further
acts as may be necessary or desirable to transfer, defend or perfect the
ownership of such work and all rights incident thereto by Vistana or such
Affiliate.
11. NON-SOLICITATION OF EMPLOYEES. During Executive's employment by the
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Company and during the Non-Compete Period, Executive shall not employ any
employees or agents or former employees or agents of Vistana or any of its
Affiliates or, directly or indirectly, solicit or otherwise encourage the
employment by Executive or by others of any employees or agents or former
employees or agents of Vistana or any of its Affiliates; provided, however, that
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this restriction shall not apply to former employees or agents who, as of the
date of the employment or solicitation by Executive, have not worked for Vistana
or any of its Affiliates during the immediately preceding twelve months.
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12. REMEDIES FOR BREACH. It is understood and agreed by the parties that
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no amount of money would adequately compensate Vistana for damages which the
parties acknowledge would be suffered as a result of a violation by the
Executive of the covenants contained in Sections 9, 10, and 11, above, and that,
therefore, Vistana shall be entitled, upon application to a court of competent
jurisdiction, to obtain injunctive relief to enforce the provisions of Sections
9, 10, or 11, which injunctive relief shall be in addition to any other rights
or remedies available to Vistana. The provisions of this Section 12 shall
survive the termination of this Agreement.
13. CERTAIN DEFINED TERMS. For the purposes of this Agreement, the
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following terms and phrases have the following meanings:
i) "AFFILIATES" means any person or entity who or which,
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directly or indirectly, through one or more intermediaries, controls or is
controlled by, or is under common control with, a specified person or entity
(the term "control" for these purposes meaning the ability, whether by ownership
of shares or other equity interests, by contract or otherwise, to elect a
majority of the directors of a corporation, to act as or select the managing or
general partner of a partnership, or otherwise to select, or have the power to
remove and then select, a majority of those persons exercising governing
authority over an entity).
ii) "CONFIDENTIAL INFORMATION" means all software, trade
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secrets, work products created by Executive for Vistana or any of its
Affiliates, know-how, ideas, techniques, theories, discoveries, formulas, plans,
charts, designs, drawings, lists of current or prospective clients, business
plans and proposals, compensation information, current or prospective business
opportunities, financial records, research and development, marketing strategies
and programs (including present and prospective OPC locations and the terms of
leases or similar arrangements), reports, report formats, forms, manuals,
computer software and other proprietary information created or obtained by
Executive for the benefit of Vistana or any of its Affiliates during the course
of employment by the Company or during the term of the Consulting Services
Agreement.
iii) "EXISTING PROJECT" means a timeshare, vacation plan,
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vacation ownership or interval ownership resort or project which Vistana or any
of its Affiliates owns, operates or has commenced to develop, acquire or
otherwise undertake as of the date of termination of the Consulting Agreement
(the "Termination Date").
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iv) "PROSPECTIVE PROJECT" means (A) a prospective timeshare,
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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 Date that Vistana or any of its Affiliates is considering developing
or undertaking and (B) any person or entity, including its Affiliates, with
respect to which Executive has been made
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aware or has been advised prior to the Effective Date that Vistana or any of its
Affiliates has commenced to evaluate or negotiate with in connection with any
transaction involving (1) the acquisition by Vistana or any of its Affiliates of
all or a portion of such person or entity or its consolidated assets or (2) the
acquisition by such person or entity (or its Affiliates) of all or a portion of
Vistana or its consolidated assets.
v) "TERRITORY" means the total geographic area located within a
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150-mile radius of each Existing Project and each Prospective Project.
14. ACKNOWLEDGEMENTS; REPRESENTATIONS.
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(a) ACKNOWLEDGEMENTS. Having read this Agreement, Executive agrees
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that Executive is entering into this Agreement knowingly, voluntarily and with
the intent to be bound by it. Executive acknowledges that Executive has read and
fully understands the Agreement's terms, conditions, meaning and intent,
including the final binding effect of the Agreement and of the waiver of rights
under this Agreement. Further, having read this Agreement in its entirety, and
having been advised by Vistana of Executive's right to consult with an attorney
before signing, Executive agrees that Executive is entering into this Agreement
knowingly and voluntarily and that no promises, representation, or inducement
not expressly set forth in this Agreement were made to Executive which caused
Executive to sign it. Executive further acknowledges that Executive has read and
fully understands the meaning and intent of all the provisions and terms of this
Agreement, including the final binding effect of the waiver of rights under this
Agreement.
(b) REPRESENTATIONS. Executive represents to Vistana that Executive
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has no actual knowledge of: (i) any litigation, proceeding or governmental
investigation pending or overtly threatened against Vistana or any of its
Affiliates (each, a "Claim") which Claim is not known by Xxxxxxx X. Xxxxxxx,
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Jr., or Xxxxxxx X. Xxxxx (collectively, Co-Chief Executive Officers ("Co-
CEO's"); or (ii) any other fact, event, act, omission, conduct or occurrence
directly involving the business of Vistana and its Affiliates or the operation
thereof which would have a material adverse effect on such business or
operations, which Claim, transaction, fact, event, act, omission, conduct or
occurrence is not known by the Co-CEO's or has not been disclosed by Executive
in writing to counsel for Vistana.
15. MISCELLANEOUS
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(a) Xxxxx Xxxxxx will remain as Executive's administrative assistant
until the Effective Date, so long as she remains employed with Vistana through
that time. Should Xxxxx Xxxxxx'x employment with Vistana cease prior to the
Effective Date, no replacement will be provided.
(b) On the Effective Date, or sooner if Vistana so chooses, Executive
agrees to resign as a Board Member on any HOA board and any other boards of
Vistana
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or any of its Affiliates on which he now serves, and will resign as trustee
of Vistana's 401(k) plan.
(c) Executive agrees to provide to the Co-CEO's as soon as
practicable after execution of this Agreement an estimate of the number of
vacation days that he intends to utilize through the Effective Date, and further
agrees to provide monthly updates regarding same.
16. 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, and the parties waive any other
jurisdiction and venue.
17. ATTORNEYS' FEES. In the event any action is instituted for breach of
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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
Executive of any of the covenants contained in Sections 9, 10, or 11, above, 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).
18. FURTHER ASSURANCES. Executive agrees to execute and deliver, or cause
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to be executed and delivered, to the other parties hereto all further documents
and to take all further action which may be required under applicable law, in
order to effectuate the termination of the Employment Agreement and Executive's
resignation as an officer of Vistana and its Affiliates.
19. SEVERABILITY. If any provision of this Agreement is, or shall at any
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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.
20. ENTIRE AGREEMENT. This Agreement and the simultaneously executed
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Consulting 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 Consulting Agreement and the Separation
Agreement supersede all prior agreements and understandings that may previously
have existed between the parties; provided, however, that the attached Exhibits
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A through F shall continue to apply to the extent specified in this Agreement;
provided further that the attached Vistana, Inc. Indemnification Agreement
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(Exhibit G) shall continue in full force and effect pursuant to its terms.
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21. BINDING EFFECT. This Agreement shall be binding upon and inure to the
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benefit of the respective parties hereto, their heirs, legal representatives,
successors and permitted assigns.
22. COUNTERPARTS. This Agreement may be executed in several counterparts,
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each of which shall be deemed an original, and all of which shall constitute but
one and the same instrument.
23. CAPTIONS. The captions appearing in this Agreement are inserted only
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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.
24. 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 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.
25. ASSIGNMENT. No party to this Agreement shall assign its rights and/or
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obligations hereunder without the prior written consent of each of the other
party.
IN WITNESS WHEREOF, intending to be legally bound, the parties have
executed this Agreement on the dates indicated.
EXECUTIVE
/s/ Xxxxxxx E Avril
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State of Florida }
County of Orange }
The foregoing instrument was acknowledged before me this 30th day of September,
1998 by Xxxxxxx X. Avril, who is personally known to me or who has produced
________________________, as identification.
(Identification)
/s/ Xxxxxxx X Xxxxxxxxx
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Notary Public
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VISTANA, INC.
By: /s/ Xxxxxxx X. Xxxxx
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Name: Xxxxxxx X. Xxxxx
---------------------------------
Title: President
--------------------------------
Its Authorized Representative
State of Florida }
County of Orange }
The foregoing instrument was acknowledged before me this 30th day of September,
1998 by Xxxxxxx X. Xxxxx, as President and Co-Chief Executive Officer of
Vistana, Inc. He is personally known to me.
/s/ Xxxxxxx X. Xxxxxxxxx
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Notary Public
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