EMPLOYMENT AGREEMENT
(Xxxx Xxxxxx)
This Employment Agreement (the "Agreement"), by and among (i) Vacation
Properties International, Inc., a Delaware corporation ("VPI"), (ii) Collection
of Fine Properties, Inc., a Colorado corporation and a wholly-owned subsidiary
of VPI (the "Company") and (iii) Xxxx Xxxxxx ("Employee"), is hereby entered
into as of this ___ day of ________, 1998, and shall be effective as of the date
of the consummation of the initial public offering of the common stock of VPI.
R E C I T A L S
A. As of the date of this Agreement, the Company is engaged primarily in the
business of providing noncommercial property management and rental services and
hotel management services.
B. Employee has served as the President of the Company and of Ten Mile Holdings,
Ltd., a Colorado corporation and wholly-owned subsidiary of VPI ("Ten Mile"), as
an employee at will, prior to the date hereof.
C. Employee is employed hereunder by the Company in a confidential relationship
wherein Employee, in the course of Employee's employment with the Company, has
and will continue to become familiar with and aware of information as to the
Company's and VPI's customers, specific manner of doing business, including the
processes, techniques and trade secrets utilized by the Company and VPI, and
future plans with respect thereto, all of which has been and will be established
and maintained at great expense to the Company and VPI; this information is a
trade secret and constitutes the valuable good will of the Company and VPI.
A G R E E M E N T S
In consideration of the mutual promises, terms, covenants and
conditions set forth herein and the performance of each, the parties hereto
hereby agree as follows:
1. EMPLOYMENT AND DUTIES.
(a) The Company hereby extends an agreement to employ and hereby
employs Employee as President of the Company and as President of Ten Mile, for
the fixed term set forth in Section 5 hereof, subject to the terms hereof. As
such, Employee shall have responsibilities, duties and authority reasonably
accorded to and expected of a President of such companies and will report
directly to the Board of Directors of the Company (the "Board"). Employee hereby
accepts this employment upon the terms and conditions herein contained and,
subject to paragraph 1(c) and paragraph 3 hereof, agrees to devote Employee's
working time, attention, and efforts to promote and further the business of the
Company, in a manner consistent with past practice.
(b) Employee shall faithfully adhere to, execute and fulfill all
policies established by the Company.
(c) Employee shall not, during the term of his or her employment
hereunder, be engaged in any other business activity pursued for gain, profit or
other pecuniary advantage if such activity interferes
with Employee's duties and responsibilities hereunder. The foregoing limitations
shall not be construed as prohibiting Employee from making personal investments
or participating in other activities in a manner consistent with past practices
(provided such practices comply with paragraph 3 hereof), in such form or manner
as will neither require Employee's services in the operation or affairs of the
companies or enterprises in which such investments are made nor violate the
terms of paragraph 3 hereof.
2. COMPENSATION.
For all services rendered by Employee, the Company shall compensate
Employee as follows:
(a) Base Salary. The base salary payable to Employee shall be $48,000
per year, payable on a regular basis in accordance with the Company's standard
payroll procedures but not less frequently than monthly.
(b) Incentive Bonus Plan. For 1998 and subsequent years, it is the
Company's intent to develop a written Incentive Bonus Plan (which may be VPI's
Incentive Bonus Plan) setting forth the criteria under which Employee and other
officers and key employees will be eligible to receive year-end bonus awards.
(c) Executive Perquisites, Benefits and Other Compensation. Employee
shall be entitled to receive additional benefits and compensation from the
Company in such form and to such extent as specified below:
(i) Payment of all premiums for coverage for Employee under
health, hospitalization, disability, dental, life and other insurance
plans that the Company or VPI may have in effect from time to time,
benefits provided to Employee under this clause (i) to be at least
equal to such benefits provided to VPI executives.
(ii) Reimbursement for all business travel and other
out-of-pocket expenses reasonably incurred by Employee in the
performance of Employee's services pursuant to this Agreement. All
reimbursable expenses shall be appropriately documented in reasonable
detail by Employee upon submission of any request for reimbursement,
and in a format and manner consistent with the Company's expense
reporting policy.
(iii) The Company shall provide Employee with other executive
perquisites as may be available to or deemed appropriate for Employee
by the Board and participation in all other Company-wide or VPI-wide
employee benefits as available from time to time.
3. NON-COMPETITION.
(a) Employee shall not, during the period of Employee's employment with
the Company, and for a period of six (6) months immediately following the
termination of Employee's employment under this Agreement (the "Noncompetition
Period"), for any reason whatsoever, directly or indirectly, for himself or
herself or on behalf of or in conjunction with any other person, persons,
company, partnership, corporation or business of whatever nature:
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(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 or rental
business or hotel management business in direct competition with the
Company or VPI or any subsidiary of either the Company or VPI, within
100 miles of the locations in which the Company or VPI or any of the
Company's or VPI's subsidiaries conducts any noncommercial property
management or rental business or hotel management business (the
"Territory");
(ii) call upon any person who is, at that time, within the
Territory, an employee of the Company or VPI (including the respective
subsidiaries thereof) in a sales representative or managerial capacity
for the purpose or with the intent of enticing such employee away from
or out of the employ of the Company or VPI (including the respective
subsidiaries thereof), provided that Employee shall be permitted to
call upon and hire any member of his or her immediate family;
(iii) call upon any person or entity which is at that time, or
which has been, within one (1) year prior to that time, a customer of
the Company or VPI (including the respective subsidiaries thereof)
within the Territory for the purpose of providing noncommercial
property management or rental services or hotel management services to
property owners and/or renters in direct competition with the Company
or VPI or any subsidiary of the Company or VPI within the Territory; or
(iv) call upon any prospective acquisition candidate, on
Employee's own behalf or on behalf of any competitor in the
noncommercial property management or rental business or hotel
management business, which candidate, to Employee's actual knowledge
after due inquiry, was called upon by the Company or VPI (including the
respective subsidiaries thereof) or for which, to Employee's actual
knowledge after due inquiry, the Company or VPI (or any subsidiary
thereof) made an acquisition analysis, for the purpose of acquiring
such entity, unless the Company or VPI (or any subsidiary thereof) has
expressly declined to pursue such acquisition candidate or at least one
(1) year has elapsed since the Company or VPI (or any subsidiary
thereof) has taken any action with respect to pursuing such acquisition
candidate.
Notwithstanding the above, the foregoing covenant shall not be deemed
to prohibit (A) Employee from 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; (B) Employee, if and to
the extent he as of the date hereof owns and operates certain businesses (other
than the businesses of the Company or VPI) engaged in, without limitation,
development of condominium and other property, ownership of real property,
ownership of hospitality facilities, real estate brokerage, ownership of rental
properties and general contractor construction, from continuing to own and
operate such businesses; or (C) Employee, if and to the extent he or she manages
properties outside of Summit County, Colorado, owned and controlled by Employee
from continuing to manage such properties.
(b) Because of the difficulty of measuring economic losses to the
Company and VPI as a result of a breach of the foregoing covenant, and because
of the immediate and irreparable damage that could be caused to the Company and
VPI for which they would have no other adequate remedy,
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Employee agrees that the foregoing covenant may be enforced by VPI or the
Company in the event of breach by him or her, by injunctions and restraining
orders.
(c) It is agreed by the parties hereto that the foregoing covenants in
this paragraph 3 impose a reasonable restraint on Employee in light of the
activities and business of the Company or VPI (including VPI's other
subsidiaries) on the date of the execution of this Agreement and the current
plans of the Company or VPI (including VPI's other subsidiaries); but it is also
the intent of the Company, VPI and Employee that such covenants be construed and
enforced in accordance with the changing locations of the Company and VPI
(including VPI's other subsidiaries) from the date hereof through the
Noncompetition Period. For example, if, during the Noncompetition Period, the
Company or VPI (including VPI's other subsidiaries) establishes new locations
for its current activities or business in addition to the locations currently
established therefor, then Employee will be precluded from soliciting customers
or employees from such new location(s) and from directly competing within 100
miles of such new location(s) through the term of the Noncompetition Period.
It is further agreed by the parties hereto that, in the event that
Employee shall cease to be employed hereunder, and shall enter into a business
or pursue other activities not in competition with the Company or VPI (including
VPI's other subsidiaries), or similar activities, or business in locations the
operation of which, under such circumstances, does not violate clause (i) of
paragraph 3(a), and in any event such new business, activities or location are
not in violation of this paragraph 3 or of Employee's obligations under this
paragraph 3, if any, Employee shall not be chargeable with a violation of this
paragraph 3 if the Company or VPI (including VPI's other subsidiaries) shall
thereafter enter the same, similar or a competitive (i) business, (ii) course of
activities or (iii) location, as applicable.
(d) The covenants in this paragraph 3 are severable and separate, and
the unenforceability of any specific covenant shall not affect the provisions of
any other covenant. Moreover, in the event any court of competent jurisdiction
shall determine that the scope, time or territorial restrictions set forth are
unreasonable, then it is the intention of the parties that such restrictions be
enforced to the fullest extent which the court deems reasonable, and the
Agreement shall thereby be reformed.
(e) All of the covenants in this paragraph 3 shall be construed as an
agreement independent of any other provision in this Agreement, and the
existence of any claim or cause of action of Employee against the Company or VPI
(including the subsidiaries thereof), whether predicated on this Agreement or
otherwise, shall not constitute a defense to the enforcement by VPI or the
Company of such covenants. It is specifically agreed that the Noncompetition
Period, during which the agreements and covenants of Employee made in this
paragraph 3 shall be effective, shall be computed by excluding from such
computation any time during which a court of competent jurisdiction or
arbitrator or mediator has determined that Employee is in violation of any
provision of this paragraph 3
4. PLACE OF PERFORMANCE.
Employee shall not be required to relocate as a condition for continued
employment hereunder.
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5. TERM; TERMINATION; RIGHTS ON TERMINATION.
The term of this Agreement shall begin on the date hereof and continue
for eighteen (18) months, 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
eighteen month period and any extensions thereof being referred to herein as the
"Term"). This Agreement and Employee's employment may be terminated in any one
of the following ways:
(a) Death. The death of Employee shall immediately terminate this
Agreement with no severance compensation due to Employee's estate.
(b) Disability. If, as a result of incapacity due to physical or mental
illness or injury, Employee shall have been absent from Employee's full-time
duties hereunder for one hundred twenty (120) consecutive days, then thirty (30)
days after receiving written notice (which notice may occur before or after the
end of such one hundred twenty (120) day period, but which shall not be
effective earlier than the last day of such one hundred twenty (120) day
period), the Company may terminate Employee's employment hereunder provided
Employee is unable to resume Employee's full-time duties at the conclusion of
such thirty (30) day notice period. Also, Employee may terminate Employee's
employment hereunder if his or her health should become impaired to an extent
that makes the continued performance of Employee's duties hereunder hazardous to
Employee's physical or mental health or life, provided that Employee shall have
furnished the Company with a written statement from a qualified doctor to such
effect and provided, further, that, at the Company's request made within thirty
(30) days of the date of such written statement, Employee shall submit to an
examination by a doctor selected by the Company who is reasonably acceptable to
Employee or Employee's doctor and such doctor shall have concurred in the
conclusion of Employee's doctor. In the event this Agreement is terminated as a
result of Employee's disability, Employee shall not receive any severance
compensation under Section 5(d) hereof or otherwise.
(c) Good Cause. The Company may terminate the Agreement ten (10) days
after delivery of written notice to Employee for "good cause", which shall be
defined as: (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 stating the alleged failure with reasonable
specificity and the need to cure, any of Employee's material duties and
responsibilities hereunder, and Employee's failure to cure within such ten (10)
day period; (3) Employee's willful dishonesty, fraud, or misconduct which
adversely affects the operations or reputation of the Company or VPI; (4)
Employee's conviction in a court of competent jurisdiction of a felony or any
misdemeanor other than a minor traffic violation; or (5) chronic alcohol abuse
or illegal drug use by Employee, provided that in the case of any termination
pursuant to clauses (1) or (2), such termination must be approved by at least
two-thirds of the members of the Board of Directors of VPI. In the event of a
termination for good cause, as enumerated above, Employee shall not receive any
severance compensation under Section 5(d) hereof or otherwise.
(d) Without Good Cause. Employee may only be terminated without "good
cause" (as defined in paragraph 5(c) above) by the Company during the Term
hereof if such termination is approved by at least two-thirds of the members of
the Board of Directors of VPI. Should Employee be terminated by the Company
without good cause during the Term, Employee shall be entitled to continue to
receive from the Company, as severance compensation, the base salary at the rate
then in effect for whatever time
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period is remaining under the Term of this Agreement or for six (6) months,
whichever period is longer. Should Employee be terminated by the Company without
good cause at any time during the Term, Employee shall be entitled to waive
Employee's right to receive severance compensation (by a written waiver
delivered to the Company on the effective date of termination), and, in such
case, the non-competition provisions of paragraph 3 shall not be valid or
enforceable.
(e) By Employee. (i) 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 the Company. If Employee resigns or otherwise terminates Employee's
employment without good reason, Employee shall receive no severance
compensation. (ii) If Employee's resignation or other termination by Employee is
for good reason (defined as the Company's failure to pay Employee on a timely
basis the amounts to which he or she is entitled under this Agreement or as a
result of any other material breach of this Agreement by the Company, as
determined by a court of competent jurisdiction or pursuant to the provisions of
paragraph 16 below), the Company shall pay all amounts and damages to which
Employee may be entitled as a result of such breach, including interest thereon
and all reasonable legal fees and expenses and other costs incurred by Employee
to enforce Employee's rights hereunder in addition to any severance compensation
to which Employee may be entitled to hereunder, as calculated pursuant to
Section 5(d) hereof. Further, none of the provisions of paragraph 3 hereof shall
be valid or enforceable if Employee's resignation or termination occurs pursuant
to this paragraph 5(e)(ii).
(f) Change in Control of VPI or the Company. In the event of a "Change
in Control" (as defined in Section 12(e) hereof) of VPI or the Company 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, the Company, and
Employee under this Agreement shall cease as of the effective date of
termination, except that the Company's obligations under paragraph 9 hereof and
Employee's obligations under paragraphs 3, 6, 7, 8 and 10 hereof shall survive
such termination in accordance with their terms; except that the Employee's
obligations under paragraph 3 shall not survive, as otherwise provided for
herein, in the event of termination (i) by the Company without good cause
pursuant to paragraph 5(d) hereof, provided Employee waives any right to
severance compensation in accordance with the terms of such paragraph 5(d); (ii)
by Employee for good reason pursuant to paragraph 5(e)(ii) hereof; or (iii) on a
change in control pursuant to paragraphs 5(f) and 12 hereof, provided Employee
waives any right to severance compensation in accordance with the terms of
paragraph 12(c) hereof.
6. RETURN OF COMPANY PROPERTY.
All records, designs, patents, business plans, financial statements,
manuals, memoranda, lists and other property delivered to or compiled by
Employee by or on behalf of the Company, VPI or their representatives, vendors
or customers which pertain to the business of the Company or VPI shall be and
remain the property of the Company or VPI, as the case may be, and be subject at
all times to their discretion and control. Likewise, all correspondence,
reports, records, charts, advertising materials and
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other similar data pertaining to the business, activities or future plans of the
Company or VPI which is collected by Employee shall be delivered promptly to the
Company without request by it upon termination of Employee's employment.
7. INVENTIONS.
Employee shall disclose promptly to VPI and the Company any and all
significant conceptions and ideas for inventions, improvements and valuable
discoveries, whether patentable or not, which are conceived or made by Employee,
solely or jointly with another, during the period of employment or within one
(1) year thereafter, and which are directly related to the business or
activities of the Company or VPI and which Employee conceives as a result of
Employee's employment by the Company. Employee hereby assigns and agrees to
assign all of Employee's interests therein to the Company or its nominee.
Whenever requested to do so by the Company, Employee shall execute any and all
applications, assignments or other instruments that the Company shall deem
necessary to apply for and obtain Letters Patent of the United States or any
foreign country or to otherwise protect the Company's interest therein.
8. TRADE SECRETS.
Employee agrees that he or she will not, during or after the Term of
this Agreement with the Company, disclose the specific terms of the Company's or
VPI's relationships or agreements with their respective significant vendors or
customers or any other significant and material trade secret of the Company or
VPI, whether in existence or proposed, to any person, firm, partnership,
corporation or business for any reason or purpose whatsoever.
9. INDEMNIFICATION.
In the event Employee is made a party to any threatened, pending, or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by the Company or VPI against Employee), by
reason of the fact that Employee is or was performing services under this
Agreement, then the Company shall indemnify Employee against all expenses
(including attorneys' fees), judgments, fines and amounts paid in settlement, as
actually and reasonably incurred by Employee in connection therewith. In the
event that both Employee and the Company are made a party to the same
third-party action, complaint, suit or proceeding, the Company or VPI agrees to
engage competent legal representation, and Employee agrees to use the same
representation, provided that if counsel selected by VPI shall have a conflict
of interest that prevents such counsel from representing Employee, Employee may
engage separate counsel and the Company or VPI shall pay all reasonable
attorneys' fees and expenses of such separate counsel.
10. NO PRIOR AGREEMENTS.
Employee hereby represents and warrants to the Company that the
execution of this Agreement by Employee and his or her employment by the Company
and the performance of Employee's duties hereunder will not violate or be a
breach of any agreement with a former employer, client or any other person or
entity. Further, Employee agrees to indemnify the Company for any claim,
including but not limited to attorneys' fees and expenses of investigation, by
any such third party that such third party may now have or may hereafter come to
have against the Company based upon or arising out of any
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noncompetition agreement, invention or secrecy agreement between Employee and
such third party which was in existence as of the date of this Agreement.
11. ASSIGNMENT; BINDING EFFECT.
Employee understands that he or she has been selected for employment by
the Company on the basis of Employee's personal qualifications, experience and
skills. Employee, therefore, shall not assign all or any portion of Employee's
performance under this Agreement. Subject to the preceding two (2) sentences and
the express provisions of paragraph 12 below, this Agreement shall be binding
upon, inure to the benefit of and be enforceable by the parties hereto and their
respective heirs, legal representatives, successors and assigns.
12. CHANGE IN CONTROL.
(a) Unless Employee elects to terminate this Agreement pursuant to (c)
below, Employee understands and acknowledges that the Company and/or VPI may be
merged or consolidated with or into another entity and that such entity shall
automatically succeed to the rights and obligations of the Company and/or VPI
hereunder or that the Company and/or VPI may undergo another type of Change in
Control. In the event such a merger or consolidation or other Change in Control
is initiated prior to the end of the Term, then the provisions of this paragraph
12 shall be applicable.
(b) In the event of a pending Change in Control wherein the Company
and/or VPI and Employee have not received written notice at least five (5)
business days prior to the anticipated closing date of the transaction giving
rise to the Change in Control from the successor to all or a substantial portion
of the Company's and/or VPI's business and/or assets that such successor is
willing as of the closing to assume and agree to perform the Company's and/or
VPI's obligations under this Agreement in the same manner and to the same extent
that the Company and/or VPI is hereby required to perform, then such Change in
Control shall be deemed to be a termination of this Agreement by the Company
without cause during the Term and the applicable portions of paragraph 5(d) will
apply; however, under such circumstances, the amount of the severance payment
due to Employee shall be triple the amount calculated under the terms of
paragraph 5(d) and shall be payable in a lump-sum payment and the noncompetition
provisions of paragraph 3 shall not apply.
(c) In any Change in Control situation, Employee may elect to terminate
this Agreement by providing written notice to the Company at least five (5)
business days prior to the anticipated closing of the transaction giving rise to
the Change in Control. In such case, the applicable provisions of paragraph 5(d)
will apply as though the Company had terminated the Agreement without good 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 six (6) months from
the effective date of termination. Employee shall have the right to waive
Employee's right to receive the severance compensation payable under this
paragraph 12(c) (by a written waiver delivered to the Company on or before the
effective date of the termination), in which case the noncompetition provisions
of paragraph 3 shall not apply.
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(d) For purposes of applying paragraph 5 hereof under the circumstances
described in (b) and (c) above, the effective date of termination will be the
closing date of the transaction giving rise to the Change in Control and all
compensation, reimbursements and lump-sum payments due Employee must be paid in
full by the Company at or prior to such closing. Further, Employee will be given
sufficient time and opportunity to elect whether to exercise all or any of
Employee's vested options to purchase VPI Common Stock, including any options
with accelerated vesting under the provisions of VPI's 1998 Long-Term Incentive
Plan, such that Employee may convert the options to shares of VPI Common Stock
at or prior to the closing of the transaction giving rise to the Change in
Control, if Employee so desires.
(e) A "Change in Control" shall be deemed to have occurred if any of
the following shall have occurred unless the transaction or event shall have
been approved by at least two-thirds (2/3) of the Board of Directors of VPI:
(i) any person or entity, other than VPI or an employee
benefit plan of VPI, acquires directly or indirectly the Beneficial
Ownership (as defined in Section 13(d) of the Securities Exchange Act
of 1934, as amended) of any voting security of the Company or VPI and
immediately after such acquisition such person or entity is, directly
or indirectly, the Beneficial Owner of voting securities representing
50% or more of the total voting power of all of the then-outstanding
voting securities of the Company or VPI;
(ii) the following individuals no longer constitute a majority
of the members of the Board of Directors of VPI: (A) the individuals
who, as of the closing date of VPI's initial public offering,
constitute the Board of Directors of VPI (the "Original Directors");
(B) the individuals who thereafter are elected to the Board of
Directors of VPI and whose election, or nomination for election, to the
Board of Directors of VPI was approved by a vote of at least two-thirds
(2/3) of the Original Directors then still in office (such directors
becoming "Additional Original Directors" immediately following their
election); and (C) the individuals who are elected to the Board of
Directors of VPI and whose election, or nomination for election, to the
Board of Directors of VPI was approved by a vote of at least two-thirds
(2/3) of the Original Directors and Additional Original Directors then
still in office (such directors also becoming "Additional Original
Directors" immediately following their election);
(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).
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(f) Employee must be notified in writing by the Company at any time
that the Company anticipates that a Change in Control may take place.
(g) Employee shall be reimbursed by the Company or its successor for
any excise taxes that Employee incurs under Section 4999 of the Internal Revenue
Code of 1986, as a result of any Change in Control. Such amount will be due and
payable by the Company or its successor within ten (10) days after Employee
delivers a written request for reimbursement accompanied by a copy of Employee's
tax return(s) showing the excise tax actually incurred by Employee.
13. COMPLETE AGREEMENT.
This Agreement is not a promise of future employment. This Agreement
supersedes any other agreements or understandings, written or oral, among the
Company, VPI and Employee, and Employee has no oral representations,
understandings or agreements with the Company or any of its officers, directors
or representatives covering the same subject matter as this Agreement.
This written Agreement is the final, complete and exclusive statement
and expression of the agreement between the Company and Employee and of all the
terms of this Agreement, and it cannot be varied, contradicted or supplemented
by evidence of any prior or contemporaneous oral or written agreements. This
written Agreement may not be later modified except by a written instrument
signed by a duly authorized officer of the Company and Employee, and no term of
this Agreement may be waived except by a written instrument signed by the party
waiving the benefit of such term.
14. NOTICE.
Whenever any notice is required hereunder, it shall be given in writing
addressed as follows:
To the Company: Vacation Properties International, Inc.
0000-X Xxxxxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Attn.: Xxxxx X. Xxxxxxxx
To Employee: Xxxx Xxxxxx
c/o Collection of Fine Properties, Inc.
000 Xxxxx Xxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxx 00000
Marked: "Personal and Confidential"
Notice shall be deemed given and effective three (3) days after the deposit in
the U.S. mail of a writing addressed as above and sent first class mail,
certified, return receipt requested, or when actually received. Either party may
change the address for notice by notifying the other party of such change in
accordance with this paragraph 14.
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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 New York, New York in accordance with
the Commercial Arbitration Rules of the American Arbitration Association then in
effect. The arbitrators shall not have the authority to add to, detract from or
modify any provision hereof nor to award punitive damages to any injured party.
The arbitrators shall have the authority to order back-pay, severance
compensation, vesting of options (or cash compensation in lieu of vesting of
options), reimbursement of costs, including those incurred to enforce this
Agreement, and interest thereon in the event the arbitrators determine that
Employee was terminated without disability or good cause, as defined in
paragraphs 5(b) and 5(c) hereof, respectively, or that the Company has otherwise
materially breached this Agreement. A decision by a majority of the arbitration
panel shall be final and binding. Judgment may be entered on the arbitrators'
award in any court having jurisdiction. The direct expense of any arbitration
proceeding shall be borne by the Company.
17. GOVERNING LAW.
This Agreement shall in all respects be construed according to the laws
of the State of Colorado.
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.
Collection of Fine Properties, Inc.
Ten Mile Holdings, Ltd.
By: ____________________________
Name:___________________________
Title:__________________________
Vacation Properties International, Inc.,
a Delaware corporation
By:____________________________
Name:__________________________
Title:_________________________
_______________________________
Xxxx Xxxxxx, Individually
