Exhibit 10.9
SEVERANCE
AGREEMENT
THIS SEVERANCE AGREEMENT
(“Agreement”) is entered into by and between Victoria
J. Kincke (“Executive”) and Interval Acquisition Corp.,
a Delaware corporation (the “Company”), and is
effective as of July 31, 2008 (the “Effective
Date”).
WHEREAS, Executive is currently an
at-will employee of the Company; and
WHEREAS, the Company and Executive
have agreed that Executive shall be entitled to receive certain
severance payments upon the termination of Executive’s
employment by the Company for any reason other than
Executive’s death or Disability or for Cause (as described
below).
NOW, THEREFORE, in consideration of
the mutual agreements hereinafter set forth, Executive and the
Company have agreed and do hereby agree as follows:
1.
TERMINATION BY THE COMPANY OTHER THAN FOR DEATH, DISABILITY OR
CAUSE .
(a)
If Executive’s employment is terminated by the Company for
any reason other than Executive’s death or Disability or for
Cause (a “Qualifying Termination”) then (i) the
Company shall pay to Executive an amount equal to twelve
(12) months of Base Salary, which amount shall be payable in
equal, biweekly installments (or, if different, in accordance with
the Company’s payroll practice as in effect from time to
time) during the twelve (12)-month period following such Qualifying
Termination (the “Severance Period”); and (ii) the
Company shall pay Executive within thirty (30) days of the date of
such Qualifying Termination in a lump sum in cash any Accrued
Obligations (as defined below) (together, the “Severance
Payments”). The payment to Executive of the Severance
Payments shall be subject to Executive’s execution and
non-revocation of a general release of the Company and its
affiliates, in a form substantially similar to that used for
similarly situated executives of the Company and its affiliates
(the “Release”), and Executive’s compliance with
the restrictive covenants set forth in Section 3 hereof.
Executive acknowledges and agrees that the Severance Payments
constitute good and valuable consideration for the
Release.
(b)
For purposes of this Agreement, the terms “Base
Salary”, “Cause” and “Accrued
Obligations,” and the phrase “termination by the
Company for Disability,” shall have the following
meanings:
(i)
“Base Salary” shall mean Executive’s Base Salary
as in effect from time to time during her employment by the
Company;
(ii)
“Accrued Obligations” shall mean the sum of
(A) any portion of Executive’s accrued but unpaid Base
Salary through the date of death or termination of
Executive’s employment for any reason, including a Qualifying
Termination; (B) any compensation previously earned but
deferred by Executive (together with any interest or earnings
thereon) that has not yet been paid and that is not otherwise to be
paid at a later date pursuant to
the executive deferred compensation plan of the
Company, if any, and (C) any reimbursements that Executive is
entitled to receive in accordance with applicable Company policies
in effect from time to time;
(iii)
“Cause” shall mean: (A) the plea of guilty or nolo
contendere to, or conviction for, the commission of a felony
offense by Executive; (B) a material breach by
Executive of a fiduciary duty owed to the Company; (C) a
material breach by Executive of any of the covenants made by
Executive in Section 3 hereof; (D) the willful or gross
neglect by Executive of her material duties; or (E) a
violation by Executive of any Company policy pertaining to ethics,
wrongdoing or conflicts of interest; and
(iv)
“termination by the Company for Disability” shall mean
the termination of Executive’s employment by the Company
following (A) Executive’s absence from the full-time
performance of her duties with the Company for a period of four (4)
consecutive months as a result of Executive’s incapacity due
to physical or mental illness (“Disability”) and
(B) Executive’s failure to return to the full-time
performance of her duties within thirty (30) days after written
notice is provided to Executive by the Company.
(c)
Upon any termination of Executive’s employment other than a
Qualifying Termination, the Company shall have no obligations
hereunder, except for the payment of any Accrued
Obligations.
2.
OFFSET. If Executive obtains other employment during the
Severance Period, the amount of any remaining Severance Payments to
be provided to Executive shall be reduced by the amount of
compensation and benefits earned by Executive from such other
employment through the end of the Severance Period. For purposes of
this Section 2, Executive shall have an obligation to inform
the Company regarding Executive’s employment status following
a Qualifying Termination and during the Severance
Period.
3.
RESTRICTIVE COVENANTS .
(a)
CONFIDENTIALITY . Executive acknowledges that, during her
employment by the Company, Executive will occupy a position of
trust and confidence. The Company and/or its affiliates shall
provide Executive with “Confidential Information” as
referred to below. Executive shall not, except as may be required
to perform Executive’s duties or as required by applicable
law, without limitation in time, communicate, divulge, disseminate,
disclose to others or otherwise use, whether directly or
indirectly, any Confidential Information regarding the Company
and/or any of affiliates.
“Confidential
Information” shall mean information about the Company or any
of its affiliates, and their respective businesses, employees,
consultants, contractors, clients and customers that is not
disclosed by the Company or any of its affiliates for financial
reporting purposes or otherwise generally made available to the
public (other than by Executive’s breach of the terms hereof)
and that was learned or developed by Executive in the course of her
employment by the Company or any of its affiliates, including
(without limitation) any proprietary knowledge, trade secrets,
data, formulae, information and client and customer
lists
2
and all papers, resumes, and records (including
computer records) of the documents containing such Confidential
Information. Executive acknowledges that such Confidential
Information is specialized, unique in nature and of great value to
the Company and its affiliates, and that such information gives the
Company and its affiliates a competitive advantage. Executive
agrees to deliver or return to the Company, at the Company’s
request at any time or upon termination of Executive’s
employment or as soon thereafter as possible, all documents,
computer tapes and disks, records, lists, data, drawings, prints,
notes and written information (and all copies thereof) furnished by
the Company and its affiliates or prepared by Executive in the
course of Executive’s employment by the Company and its
affiliates. As used in this Agreement, “subsidiaries”
and “affiliates” shall mean any company controlled by,
controlling or under common control with the Company.
(b)
NON-COMPETITION . In consideration of the Company’s
obligation to make the Severance Payments under certain
circumstances (as described in Section 1(a) above) and
other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged by Executive, Executive hereby
agrees and covenants that, during Executive’s employment by
the Company and for a period of twenty-four (24) months thereafter
(the “Restricted Period”), Executive shall not, without
the prior written consent of the Company, directly or indirectly,
engage in or become associated with a Competitive Activity. For
purposes of this Agreement, (i) “Competitive
Activity” means any business or other endeavor involving
Similar Products if such business or endeavor is in a country
(including the United States) in which the Company (or any of its
businesses) provides or planned to provide during Executive’s
employment by the Company such Similar Products and
(ii) “Similar Products” means (A) any time
share or vacation ownership exchange service or program (the
“Exchange Business”); (B) any travel agency, club
or service that provides such services to anyone engaged in the
Exchange Business or their members; (C) any travel agency,
club or service that is competitive with the Company’s travel
and leisure membership programs, including, but not limited to, the
Interval Gold, Leisure Time Passport or LiveItUp membership
programs; (D) hotel management or vacation
condominium, hotel condominium, timeshare or rental property
management services; or (E) any other products or services
that are the same or similar to any of the types of products or
services that the Company (or any of its businesses) provides, has
provided or planned to provide during Executive’s employment
by the Company. The provisions of subsections
(b)(ii)(B) through (E) shall only apply if Executive has
provided services on behalf of the Company or its affiliates in
direct support of the businesses described in such
subsections.
Executive shall be considered to
have become “associated with a Competitive Activity” if
Executive becomes directly or indirectly involved as an owner,
principal, employee, officer, director, independent contractor,
representative, stockholder, financial backer, agent, partner,
member, advisor, lender, consultant or in any other individual
or
