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


 


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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 representative capacity with any
individual, partnership, corporation or other organization that is engaged in a
Competitive Activity. Notwithstanding the foregoing, Executive may make and
retain investments during the Restricted Period, for investment purposes only,
in less than one percent (1%) of the outstanding capital stock of any
publicly-traded corporation engaged in a Competitive Activity if the stock of
such corporation is either listed on a national stock exchange or on the NASDAQ
National Market System if Executive is not otherwise affiliated with such
corporation.


 


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Executive
acknowledges that Executive’s covenants under this Section 3(b) are a
material inducement to the Company’s entering into this Agreement.


 


(c)          NON-SOLICITATION OF EMPLOYEES. For a period of thirty-six (36) months following Executive’s termination of
employment for any reason, Executive shall not, without the prior written
consent of the Company, directly or indirectly, hire or solicit or  recruit any employee of the Company, or any of its affiliates with whom
Executive has had direct contact during her employment by the Company, in all
cases, for the purpose of being employed by Executive or by any business,
individual, partnership, firm, corporation or other entity on whose behalf
Executive is acting as an agent, representative or employee and that Executive
will not convey any Confidential Information or trade secrets about employees
of the Company or any of its affiliates to any other person except within the
scope of Executive’s duties.


 


(d)         NON-SOLICITATION OF CUSTOMERS. During the Restricted Period, Executive
shall not solicit any customers of the Company or any of its affiliates or
encourage (regardless of who initiates the contact) any such customers to use
the facilities or services of any competitor of the Company or any of its
affiliates.


 


(e)          PROPRIETARY RIGHTS; ASSIGNMENT. All Employee Developments (defined below)
shall be considered works made for hire by Executive for the Company or, as
applicable, its affiliates, and Executive agrees that all rights of any kind
in any Employee Developments belong exclusively to the Company. In order to
permit the Company to exploit such Employee Developments, Executive shall
promptly and fully report all such Employee Developments to the Company. Except
in furtherance of her obligations as an employee of the Company, Executive
shall not use or reproduce any portion of any record associated with any
Employee Development without prior written consent of the Company or, as
applicable, its affiliates. Executive agrees that in the event actions of
Executive are required to ensure that such rights belong to the Company under
applicable laws, Executive will cooperate and take whatever such actions are
reasonably requested by the Company, whether during or after her employment by
the Company, and without the need for separate or additional compensation.


 


“Employee
Developments” means any idea, know-how, discovery, invention, design, method,
technique, improvement, enhancement, development, computer program, machine,
algorithm or other work of authorship, whether developed, conceived or reduced
to practice during or following Executive’s employment by the Company, that (i) concerns
or relates to the actual or anticipated business, research or development
activities, or operations of the Company or any of its affiliates, or (ii) results
from or is suggested by any undertaking assigned to Executive or work performed
by Executive for or on behalf of the Company or any of its affiliates, whether
created alone or with others, during or after working hours, or (iii) uses,
incorporates or is based on Company equipment, supplies, facilities, trade
secrets or inventions of any form or type. All Confidential Information and all
Employee Developments are and shall remain the sole property of the Company or
any of its affiliates. Executive shall acquire no proprietary interest in any
Confidential Information or Employee Developments developed or acquired her
employment by the Company. To the extent Executive may, by operation of law or
otherwise, acquire any right, title or interest in or to any Confidential
Information or Employee
Development, Executive hereby assigns
and covenants to assign to the Company all such


 


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proprietary
rights without the need for a separate writing or additional compensation.
Executive shall, both during and after her employment by the Company, upon the
Company’s request, promptly execute, acknowledge, and deliver to the Company
all such assignments, confirmations of assignment, certificates, and
instruments, and shall promptly perform such other acts, as the Company may
from time to time in its discretion deem necessary or desirable to evidence,
establish, maintain, perfect, enforce or defend the Company’s rights in
Confidential Information and Employee Developments.


 


4.          NOTICES. All notices and other communications under
this Agreement shall be in writing and shall be given by first-class mail,
certified or registered with return receipt requested, or by hand delivery, or by
overnight delivery by a nationally recognized carrier, in each case to the
applicable address set forth below, and any such notice is deemed effectively given when received by the recipient (of
if receipt is refused by the recipient, when so refused):


 


	
  If
  to the

  Company:

  	
   

  	
  Interval
  Acquisition Corp.

  
	
   

  	
   

  	
  c/o
  Interval International, Inc.

  
	
   

  	
   

  	
  Attention:
  General Counsel 

  
	
   

  	
   

  	
  6262
  Sunset Drive

  
	
   

  	
   

  	
  Miami,
  Florida 33143

  
	
   

  	
   

  	
   

  
	
  If
  to Executive:

  	
   

  	
  At
  the most recent address on file at the Company.

  



 


Either
party may change such party’s address for notices by notice duly given pursuant
hereto.


 


5.           GOVERNING LAW;
JURISDICTION.
This Agreement and the legal relations thus created between the parties hereto
(including, without limitation, any dispute arising out of or related to this
Agreement) shall be governed by and construed under and in accordance with the internal
laws of the State of Florida without
reference to its principles of conflicts of laws. Any such dispute will be
heard and determined before an appropriate federal court located in the State
of Florida in Miami-Dade County, or, if not maintainable therein, then in an
appropriate Florida state court located in Miami-Dade County, and each party
hereto submits itself and its property to the non-exclusive jurisdiction of the
foregoing courts with respect to such disputes. Each party hereto (i) agrees
that service of process may be made by mailing a copy of any relevant document
to the address of the party set forth above, (ii) waives to the fullest
extent permitted by law any objection which it may now or hereafter have to the
courts referred to above on the grounds of inconvenient forum or otherwise as regards any dispute between the parties hereto arising out of or
related to this Agreement, (iii) waives to the fullest extent permitted by
law any objection which it may now or hereafter have to the laying of
venue in the courts referred to above as regards any dispute between the
parties hereto arising out of or related to this Agreement and (iv) agrees
that a judgment or order of any court referred to above in connection with any
dispute between the parties hereto arising out of or related to this Agreement
is conclusive and binding on it and may be enforced against it in the courts of
any other jurisdiction.


 


6.           SECTION 409A OF THE
INTERNAL REVENUE CODE. This
Agreement is not intended to constitute a “nonqualified deferred compensation
plan” within the meaning of


 


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Section 409A
of the Internal Revenue Code of 1986, as amended, and the rules and
regulations issued thereunder (“Section 409A”). Notwithstanding the
foregoing, if this Agreement or any amounts or benefits payable to Executive
hereunder is subject to Section 409A and if the Executive is a “Specified
Employee” (as defined under Section 409A) as of the date of Executive’s
termination of employment, then the payment of such amounts or benefits, if
any, scheduled to be paid by the Company to Executive hereunder during the
first twelve (12) month period beginning on the date of a termination of
employment shall be delayed during such six (6) month period and shall
commence immediately following the end of such twelve (12) month period
(and, if applicable, the period in which such payments were scheduled to be
made if not for such delay shall be extended accordingly). In no event shall the Company be required to pay Executive any
“gross-up” or other payment with respect to any taxes or penalties imposed
under Section 409A with respect to any amounts or benefits paid to
Executive hereunder.


 


7.           SURVIVAL OF
PROVISIONS.
The obligations contained in Section 3 shall, to the extent provided in Section 3,
survive a Qualifying Termination and, as applicable, shall be fully enforceable
thereafter in accordance with the terms of this Agreement. If it is determined
by a court of competent jurisdiction that any restriction in Section 3 is
excessive in duration or scope or is unreasonable or unenforceable under
applicable law, it is the intention of the parties that such restriction may be
modified or amended by the court to render it enforceable to the maximum extent
permitted by applicable law.


 


8.           TERMINATION OF
PRIOR AGREEMENTS.
This Agreement constitutes the entire agreement between the parties and, as of
the Effective Date, terminates and supersedes any and all prior agreements and
understandings (whether written or oral) between the parties with respect to
the subject matter of this Agreement. Executive acknowledges and agrees that
neither the Company nor anyone acting on its behalf has made, and is not
making, and in executing this Agreement, Executive has not relied upon, any
representations, promises or inducements except to the extent the same is
expressly set forth in this Agreement.


 


9.           ASSIGNMENT;
SUCCESSORS.
This Agreement is personal in its nature and none of the parties hereto shall,
without the consent of the others, assign or transfer this Agreement or any
rights or obligations hereunder; provided,
that the Company may assign
this Agreement to, or allow any of its obligations to be fulfilled by, or take
actions through, any affiliate of the Company and, in the event of the merger,
consolidation, transfer, or sale of all or substantially all of the assets of
the Company (a “Transaction”) with or to any other individual or
entity, this Agreement shall, subject to the provisions hereof, be binding upon
and inure to the benefit of such successor and such successor shall discharge
and perform all the promises, covenants, duties, and obligations of the Company
hereunder, and in the event of any such assignment or Transaction, all references
herein to the “Company” shall refer to the Company’s assignee or successor
hereunder.


 


10.         WITHHOLDING. The Company shall make such deductions and
withhold such amounts from each payment and benefit made or provided to
Executive hereunder, as may be required from time to time by applicable law,
governmental regulation or order.


 


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11.         COUNTERPARTS.
This Agreement may be executed in several counterparts, each of which shall be
deemed to be an original but all of which together will constitute one and the
same instrument.


 


12.         HEADING REFERENCES.
Section headings in this Agreement are included herein for convenience of
reference only and shall not constitute a part of this Agreement for any other
purpose.


 


13.         REMEDIES FOR BREACH.
Executive expressly agrees and understands that Executive will notify the
Company in writing of any alleged breach of this Agreement by the Company, and
the Company will have thirty (30) days from receipt of Executive’s notice to
cure any such breach. Executive expressly agrees and understands that in the
event of a Qualifying Termination, the Company’s contractual obligations to
Executive shall be fulfilled through compliance with its obligations under Section 1
of this Agreement.


 


Executive expressly agrees and understands that the remedy at law for
any breach by Executive of Section 3 of this Agreement will be inadequate
and that damages flowing from such breach are not usually susceptible to being
measured in monetary terms. Accordingly, it is acknowledged that, upon
Executive’s violation of any provision of Section 3, the Company shall be
entitled to obtain from any court of competent jurisdiction immediate
injunctive relief and obtain a temporary order restraining any threatened or
further breach as well as an equitable accounting of all profits or benefits
arising out of such violation. Nothing shall be deemed to limit the Company’s
remedies at law or in equity for any breach by Executive of any of the
provisions of this Agreement, including Section 3, which may be pursued by
or available to the Company.


 


14.         WAIVER;
MODIFICATION. Failure to insist upon strict compliance with any of the
terms, covenants, or conditions hereof shall not be deemed a waiver of such
term, covenant, or condition, nor shall any waiver or relinquishment of, or
failure to insist upon strict compliance with, any right or power hereunder at
any one or more times be deemed a waiver or relinquishment of such right or
power at any other time or times. This Agreement shall not be modified in any respect except by a writing
executed by each party hereto.


 


15.         SEVERABILITY.
In the event that a court of competent jurisdiction determines that any portion
of this Agreement is in violation of any law or public policy, only the
portions of this Agreement that violate such law or public policy shall be
stricken. All portions of this Agreement that do not violate any statute or
public policy shall continue in full force and effect. Further, any court order
striking any portion of this Agreement shall modify the stricken terms as
narrowly as possible to give as much effect as possible to the intentions of
the parties under this Agreement.


 


[The Signature Page Follows]


 


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IN WITNESS WHEREOF, the Company has caused this Agreement to be
executed and delivered by its duly authorized officer and Executive has
executed and delivered this Agreement on this 31st day of July, 2008.


 


	
   

  	
  Interval Acquisition Corp.

  
	
   

  	
   

  
	
   

  	
  /s/ Craig M. Nash

  
	
   

  	
  By: 

  	
  Craig M. Nash

  
	
   

  	
  Title: 

  	
  President and

  
	
   

  	
   

  	
  Chief Executive Officer

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Victoria J. Kincke

  
	
   

  	
  Victoria J. Kincke

  



 


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