Exhibit 10.5


 


EMPLOYMENT AGREEMENT


 


THIS
EMPLOYMENT AGREEMENT (“Agreement”)
is entered into by and between Craig M. Nash (“Executive”)
and Interval Leisure Group, Inc., a Delaware corporation (the “Company”), as of the 31st day of
July, 2008.


 


WHEREAS,
IAC/InterActiveCorp, a Delaware corporation (“IAC”)
and Executive are parties to that certain employment agreement, the effective
date of which is July 1, 2007 (the “Prior Employment Agreement”);


 


WHEREAS,
the Company and Executive expect that IAC, will cause the Company to become a
separate public entity (the “Spin-Off”);


 


WHEREAS,
as a result of the Spin-Off, Executive will no longer be employed with IAC and
the Prior Employment Agreement will terminate; and


 


WHEREAS,
the Company desires to establish its right to the services of Executive for a
period beginning on the date the Spin-Off occurs (the “Effective
Date”), in the capacity described below, on the terms and
conditions hereinafter set forth, and Executive is willing to accept such
employment on such terms and conditions.


 


NOW,
THEREFORE, in consideration of the mutual agreements
hereinafter set forth, Executive and the Company have agreed and do hereby
agree as follows:


 


1A.          EMPLOYMENT.  During the Term (as defined below), the
Company shall employ Executive, and Executive shall be employed, as Chairman,
President and Chief Executive Officer of the Company.  During Executive’s employment with the
Company, Executive shall do and perform all services and acts necessary or
advisable to fulfill the duties and responsibilities as are commensurate and
consistent with Executive’s position and shall render such services on the
terms set forth herein.  During Executive’s
employment with the Company, Executive shall report directly to the Board of
Directors of the Company (the “Board”) and
shall be nominated to serve as a member
of the Board.  Executive shall
have such powers and duties with respect to the Company as may reasonably be
assigned to Executive by the Board, to the extent consistent with Executive’s
position, which shall, without limiting the authority of the Board, include the
direct charge of and general supervision over the business and affairs of the
Company.  Executive agrees to devote all
of Executive’s working time, attention and efforts to the Company and to
perform the duties of Executive’s position in accordance with the Company’s
policies as in effect from time to time. 
Executive may (i) serve as a
director or member of a committee or organization involving no actual or
potential conflict of interest with the Company and its subsidiaries and
affiliates; (ii) deliver lectures and fulfill speaking engagements; (iii) engage
in charitable and community activities; and (iv) invest his personal
assets in such form or manner that will not violate this Agreement or require
services on the part of Executive in the operation or affairs of the companies
in which those investments are made; provided the activities described
in clauses (i), (ii), (iii) or (iv) do not materially affect or interfere
with the performance of Executive’s duties and obligations to the Company or
conflict with such policies as may be 


 

















 


adopted from time to time by the Board.  Executive’s principal place of employment
shall be the Company’s offices located in Miami, Florida.


 


2A.          TERM.  The term of this Agreement shall begin on the
Effective Date and shall end on the fourth anniversary of the Effective Date
(such period, the “Initial Term”); provided,
that on the fourth anniversary of the Effective Date and on each anniversary
thereafter, the Initial Term shall automatically be extended for additional
one-year periods (the Initial Term as so extended, the “Term”)
unless either party provides the other party with a notice of termination at
least thirty (30) days before any such anniversary (the anniversary date on
which the Term terminates shall be referred to herein as the “Scheduled Termination Date”).  Notwithstanding the foregoing, the Executive’s
employment hereunder may be terminated during the Term prior to the Scheduled
Termination Date.


 


Notwithstanding the termination of the Term, certain
terms and conditions herein may specify a greater period of effectiveness.  If Executive’s employment with IAC is
terminated prior to the date of the Spin-Off, this Agreement shall terminate automatically
and be null and void.


 


3A.          COMPENSATION.


 


(a)           BASE SALARY.  During the period that Executive is employed
with the Company hereunder, the Company shall pay Executive an annual base
salary of $750,000 (the “Base Salary”),
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 Term, the Base Salary will be reviewed annually and is subject to
adjustment at the discretion of the Board, but in no event shall the Company
pay Executive a Base Salary less than that set forth above during the period
that Executive is employed with the Company. 
For all purposes under this Agreement, the term “Base Salary”
shall refer to the Base Salary as in effect from time to time.


 


(b)           BONUS.  During the period that Executive is employed
with the Company hereunder, Executive shall be eligible to receive
discretionary annual bonuses, with a target annual bonus of 100% of Base Salary; provided, however, that Executive
shall be entitled to receive a minimum annual bonus, as described on Exhibit A
hereto.  Any such annual bonus shall be
paid not later than March 15 of the calendar year immediately following
the calendar year with respect to which such annual bonus relates (unless
Executive has elected to defer receipt of such bonus pursuant to an
arrangement that meets the requirements of Section 409A (as defined
below)).


 


(c)           GRANT OF
RESTRICTED STOCK UNITS.


 


(i)            As promptly as practicable following the Effective
Date, Executive shall be granted, under and subject to the provisions of the
Company’s Stock and Annual Incentive Plan then in effect (the “Company Incentive Plan”), an
award of a number of Company restricted stock units (“Company
RSUs”) (each such unit corresponding to one share of common
stock of the Company (“Company Common Stock”))
determined by dividing $2,000,000 by the value of a share of Company Common
Stock utilized to convert IAC restricted stock units into Company RSUs in the
Spin-Off, rounded to the nearest whole number of Company RSUs (such 


 


2

















 


award, the “Cliff
Vesting Award”). 
Contingent upon satisfaction of one or more of the performance
conditions attached as Exhibit B hereto, which performance conditions have
been agreed upon by the Executive and the Company and approved by the
Compensation and Human Resources Committee of the Board of Directors of IAC,
the Cliff Vesting Award shall vest and no longer be subject to any restriction
on the four-year anniversary of the Spin-Off, subject to Executive’s continued
employment with the Company through such date.


 


(ii)           As promptly as practicable following the Effective Date, Executive shall be
granted, under and subject to the provisions of the Company Incentive Plan an
award of a number of Company RSUs determined by dividing $6,000,000 by the
value of a share of Company Common Stock utilized to convert IAC restricted
stock units into Company RSUs in the Spin-Off, rounded to the nearest whole
number of Company RSUs (the “Annual Vesting Award”
and, together with the Cliff Vesting Award, the “Initial
Equity Awards”). 
Contingent upon satisfaction of one or more of the performance
conditions attached as Exhibit B hereto, which performance conditions have
been agreed upon by the Executive and the Company and approved by the
Compensation and Human Resources Committee of the Board of Directors of IAC,
the Cliff Vesting Award shall vest and no longer be subject to any restriction
(in each case subject to the Executive’s continued employment with the Company
through the applicable vesting date):


 


	
  Vesting Date

  	
   

  	
  Percentage of Total Award Vesting

  	
   

  
	
   

  	
   

  	
   

  	
   

  
	
  On the first anniversary of the Spin-Off

  	
   

  	
  25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  On the second anniversary of the Spin-Off

  	
   

  	
  25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  On the third anniversary of the Spin-Off

  	
   

  	
  25

  	
  %

  
	
   

  	
   

  	
   

  	
   

  
	
  On the fourth anniversary of the Spin-Off

  	
   

  	
  25

  	
  %

  



 


(iii)          Other terms
for each of the Cliff Vesting Award and the Annual Vesting Award will be set
forth in one or more Award Notices and related Terms and Conditions consistent
with the terms of this Agreement and otherwise in form and substance consistent
with Award Notices and Terms and Conditions historically used by IAC for equity
awards to its senior executives.


 


(d)           BENEFITS.  From the Effective Date through the date of
termination of Executive’s employment with the Company for any reason,
Executive shall be entitled to participate in any welfare, health and life
insurance and pension benefit and incentive, perquisite and fringe benefit
programs as may be adopted from time to time by the Company on the same basis
as that provided to similarly situated employees of the Company.  Without limiting the generality of the
foregoing, Executive shall be entitled to the following benefits:


 


(i)            Reimbursement for
Business Expenses.  During the period
that Executive is employed with the Company hereunder, the Company shall
reimburse Executive for all reasonable, necessary and documented expenses
incurred by Executive in performing 


 


3

















 


Executive’s duties for the Company, on the
same basis as similarly situated employees and in accordance with the Company’s
policies as in effect from time to time.


 


(ii)           Vacation.  During the period that Executive is employed
with the Company hereunder, Executive shall be entitled to paid vacation each
year, in accordance with the plans, policies, programs and practices of the
Company applicable to similarly situated employees of the Company generally.


 


(iii)          Automobile Allowance.  During the period that Executive is employed
with the Company hereunder, Executive shall be entitled to an automobile
allowance of $1,200 per month.


 


(iv)          Disability Policy.  The Company acknowledges that notwithstanding
any provision herein to the contrary, Executive shall be entitled to continue
his current disability insurance policy during the period that Executive is
employed with the Company hereunder at the Company’s expense and in accordance
with the Company’s current practices.


 


(v)           Business Travel.  Executive shall be entitled to private jet or
commercial first-class air travel and to first-class hotel accommodations when
traveling on Company business.


 


4A.          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 (or if receipt is refused by the
recipient, when so refused):


 


	
  If to the
  Company:

  	
  Interval
  Leisure Group, Inc.

  
	
   

  	
  6262 Sunset
  Drive

  
	
   

  	
  Miami, FL
  33143

  
	
   

  	
  Attention:
  General Counsel

  
	
   

  	
   

  
	
  If to Executive:

  	
  Craig M. Nash

  
	
   

  	
  At the
  last address indicated in the Company’s records.

  



 


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


 


5A.          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 dispute between the parties hereto
arising out of or related to this Agreement 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.


 


4

















 


The parties hereto
acknowledge and agree that the Company is headquartered in Florida and that, in
the course of performing duties hereunder for the Company, Executive shall have
multiple contacts with the business and operations of the Company, as well as
other businesses and operations in the State of Florida, and that for
those and other reasons this Agreement and the undertakings of the parties
hereunder bear a reasonable relation to the State of Florida.  If an appropriate court determines, in
connection with a dispute between the parties hereto arising out of or related
to this Agreement, that the internal laws of the State of Florida do not govern
this Agreement and the legal relations thus created between the parties hereto,
then this Agreement and such legal relations shall be governed by and construed
under and in accordance with the internal laws of the State of Delaware without
reference to its principles of conflicts of laws.  In such a case, if the dispute is not, for
any reason, maintainable in the applicable court referred to above, such
dispute will be heard exclusively, and determined before, an appropriate
Delaware state court located in New Castle County, or, if not maintainable
therein, then in an appropriate federal court located in the State of Delaware in
New Castle County, and, in such case, each party hereto submits itself and its
property to the 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.


 


6A.          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.


 


7A.          STANDARD TERMS AND
CONDITIONS.  Executive
expressly understands and acknowledges that the Standard Terms and Conditions
attached hereto are incorporated herein by reference, deemed a part of this
Agreement and are binding and enforceable provisions of this Agreement.  References to “this Agreement” or the use of
the term “hereof” shall refer to this Agreement and the Standard Terms and
Conditions attached hereto, taken as a whole.


 


8A.          SECTION 409A OF THE
INTERNAL REVENUE CODE.  
This Agreement is intended to comply with the requirements of Section 409A
of the of the Internal Revenue Code of 1986, as amended (the “Code”), and the rules and
regulations issued thereunder (“Section 409A”)
or an exemption and shall in all respects be administered in accordance with Section 409A.    Notwithstanding anything in the Agreement
to the contrary, distributions upon termination of employment may only be made
upon a “separation from service” as determined under Section 409A.  Each payment under this Agreement shall be
treated as a separate payment for purposes of Section 409A.  In no event may Executive, directly or
indirectly, designate the calendar year of any payment to be made under this
Agreement.  All reimbursements and
in-kind benefits 


 


5

















 


provided under this
Agreement shall be made or provided in accordance with the requirements of Section 409A.   In the event the parties determine that the
terms of this Agreement do not comply with Section 409A, they will
negotiate reasonably and in good faith to amend the terms of this Agreement
such that it complies (in a manner that attempts to minimize the economic
impact of such amendment on Executive and the Company) within the time period
permitted by the applicable Treasury Regulations.  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 benefit paid to
Executive hereunder.


 


9A.          Notwithstanding anything to the contrary herein,
this Agreement shall become effective upon, and subject to the occurrence of,
the Effective Date.


 


[The Signature Page Follows]


 


6

















 


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 July 31, 2008.


 


	
   

  	
  INTERVAL LEISURE GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Gregory
  Blatt

  
	
   

  	
  By: Gregory Blatt

  
	
   

  	
  Title: Vice President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Craig M.
  Nash

  
	
   

  	
  CRAIG M. NASH

  



 

















 


STANDARD TERMS AND CONDITIONS


 


1.             TERMINATION OF EXECUTIVE’S EMPLOYMENT.


 


(a)           DEATH.  In the event Executive’s employment hereunder
is terminated by reason of Executive’s death, the Company shall pay Executive’s
designated beneficiary or beneficiaries, within thirty (30) days of Executive’s
death in a lump sum in cash, (i) Executive’s Base Salary through the end
of the month in which death occurs and (ii) any other Accrued Obligations
(as defined in paragraph 1(f) below).


 


(b)           DISABILITY.  If, as a result of Executive’s incapacity due
to physical or mental illness (“Disability”),
Executive shall have been absent from the full-time performance of Executive’s
duties with the Company for a period of four (4) consecutive months and,
within thirty (30) days after written notice is provided to Executive by the
Company (in accordance with Section 4A hereof), Executive shall not have
returned to the full-time performance of Executive’s duties, Executive’s
employment under this Agreement may be terminated by the Company for
Disability.  During any period prior to
such termination during which Executive is absent from the full-time
performance of Executive’s duties with the Company due to Disability, the
Company shall continue to pay Executive’s Base Salary at the rate in effect at
the commencement of such period of Disability, offset by any amounts payable to
Executive under any disability insurance plan or policy provided by the Company.  Upon termination of Executive’s employment
due to Disability, the Company shall pay Executive within thirty (30) days of
such termination (i) Executive’s Base Salary through the end of the month
in which termination occurs in a lump sum in cash, offset by any amounts
payable to Executive under any disability insurance plan or policy provided by
the Company; and (ii) any other Accrued Obligations.


 


(c)           TERMINATION FOR CAUSE OR WITHOUT GOOD
REASON.  Executive shall have the
right to resign his employment without Good Reason.  Upon the termination of Executive’s
employment by the Company for Cause (as defined below), or by Executive without
Good Reason, the Company shall have no further obligation hereunder, except for
the payment of any Accrued Obligations (as defined in paragraph 1(f) below).  As used herein, “Cause”
shall mean:  (i) the plea of guilty
or nolo contendere to, or conviction for, the commission of a felony offense by
Executive; provided, however, that after indictment, the Company
may suspend Executive from the rendition of services, but without limiting or
modifying in any other way the Company’s obligations under this Agreement; provided,
further, that Executive’s employment shall be immediately reinstated if
the indictment is dismissed or otherwise dropped and there are not otherwise
grounds to terminate Executive’s employment for Cause; (ii) a material
breach by Executive of a fiduciary duty owed to the Company; provided
that the Board determines, in the Board’s good faith discretion, that such
material breach undermines the Board’s confidence in Executive’s fitness to
continue in his position, as evidenced in writing from the Board; (iii) a
material breach by Executive of any of the covenants made by Executive in Section 4
hereof; provided, however, that in the event such material breach
is curable, Executive shall have failed to remedy such material breach within
ten (10) days of Executive having received a written demand for cure by
the Board, which demand specifically identifies the manner in which the 


 

















 


Company believes that Executive has
materially breached any of the covenants made by Executive in Section 4
hereof; (iv) the willful or gross neglect by Executive of the material
duties required by this Agreement following receipt of written notice from the
Board which specifically identifies the nature of such willful or gross neglect
and a reasonable opportunity to cure; or (v) a knowing and material
violation by Executive of any Company policy pertaining to ethics, wrongdoing
or conflicts of interest.


 


(d)           TERMINATION
BY THE COMPANY OTHER THAN FOR DEATH, DISABILITY OR CAUSE OR RESIGNATION BY
EXECUTIVE FOR GOOD REASON.  If
Executive’s employment hereunder is terminated prior to the expiration of the
Term by the Company for any reason other than Executive’s death or Disability
or for Cause, or if Executive terminates his employment hereunder prior to the
expiration of the Term for Good Reason (any such termination, a “Qualifying Termination”), then:


 


(i)            the Company
shall continue to pay to Executive the Base Salary for twenty-four (24) months
from the date of such termination (the “Severance Period”),
payable in equal biweekly installments (or, if different, in accordance with
the Company’s payroll practice as in effect from time to time) (the “Cash Severance Payments”);


 


(ii)           at the time when
bonuses for the year in which the date of termination occurs would otherwise be
paid (but in no event later than the 15th day of the third month following the
close of such fiscal year unless Executive has previously elected to defer the
receipt of such bonus pursuant to an arrangement that meets the requirements of
Section 409A), the Company shall pay to Executive any bonus that would
have been earned by Executive during such year if such termination had not
occurred, which bonus, if any, shall be based on the Company’s actual
achievement of pre-established performance criteria, if any, established by the
compensation committee of the Board (the “Compensation Committee”),
pro rated for the portion of the year during which Executive was employed (but
which shall not include bonuses earned if the Compensation Committee retained
discretion to reduce the award and the Compensation Committee elects to apply
such discretion to reduce bonuses on the same basis for all employees eligible
to participate in the bonus plan for such year).


 


(iii)          the Company shall pay
Executive within thirty (30) days of the date of such termination in a lump sum
in cash any Accrued Obligations (as defined in paragraph 1(f) below); and


 


(iv)          any portion of the
Initial Equity Awards that is outstanding and unvested at the time of such
termination but that would, but for a termination of employment, have vested
during the Severance Period shall vest as of the date of such termination of
employment; provided; however, that, for purposes of this
provision, the Cliff Vesting Award shall be treated as though it vested
annually pro rata over its vesting period (e.g., if the date of termination occurred between the one
and two-year anniversaries of the Effective Date, 75% of Company RSUs subject
to the Cliff Vesting Award would vest on the date of termination and if the
date of termination occurred following the two-year anniversary of the
Effective Date, all of the Company RSUs subject to the Cliff Vesting Award
would vest on the date of termination); provided, further, however,
that any Company RSUs that would vest under this provision but for 


 


2

















 


the fact that outstanding performance conditions
have not been satisfied shall vest only if, and at such point as, such
performance conditions are satisfied.


 


Notwithstanding the preceding provisions of this Section 1(d), in
the event that Executive is a “specified employee” (within the meaning of Section 409A)
on the date of termination of Executive’s employment with the Company and the
Cash Severance Payments to be paid within the first six months following such
date (the “Initial Payment Period”)
exceed the amount referenced in Treas. Regs. Section 1.409A-1(b)(9)(iii)(A) (the
“Limit”), then (i) any portion
of the Cash Severance Payments that is payable during the Initial Payment
Period that does not exceed the Limit shall be paid at the times set forth in Section 1(d)(i),
(ii) any portion of the Cash Severance Payments that exceeds the Limit
(and would have been payable during the Initial Payment Period but for the
Limit) shall be paid, with Interest, on the first business day of the first
calendar month that begins after the six-month anniversary of Executive’s “separation
from service” (within the meaning of Section 409A) and (iii) any
portion of the Cash Severance Payments that is payable after the Initial
Payment Period shall be paid at the times set forth in Section 1(d)(i).  For purposes of this paragraph, “Interest” shall mean interest at the
applicable federal rate provided for in Section 7872(f)(2)(A) of the
Code, from the date on which payment would otherwise have been made but for any
required delay through the date of payment.


 


The payment to Executive of the severance
benefits described in this Section 1(d) (including any accelerated
vesting) 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 within 60 days of the date of termination of Executive’s employment,
and Executive’s compliance with the restrictive covenants set forth in Section 4
hereof (other than any non-compliance that is immaterial, does not result in
harm to the Company or its affiliates, and, if curable, is cured by Executive
promptly after receipt of notice thereof given by the Company).  Executive acknowledges and agrees that the
severance benefits described in this Section 1(d) constitute good and
valuable consideration for such release.


 


For purposes of this Agreement, “Good Reason” shall mean the
occurrence of any of the following without Executive’s prior written consent: (A) a
material change in the geographic location at which Executive must perform his
services; (B) the Company significantly diminishes Executive’s duties and
responsibilities as set forth in Section 1A; (C) Executive is
required to report to a corporate officer or employee of the Company instead of
reporting directly to the Board of Directors of the Company; or (D) the
Company materially(1) breaches this Agreement;  provided that in no event shall Executive’s resignation be for “Good
Reason” unless (x) an event or circumstance set forth in clauses (A),
(B), (C) or (D) shall have occurred and Executive provides the
Company with written notice thereof within thirty (30) days after Executive has
knowledge of the occurrence or existence of such event or circumstance, which
notice specifically identifies the event or circumstance that Executive
believes constitutes Good Reason, (y) the Company fails to correct the
circumstance or event so identified within thirty (30) days


 






(1) Note:  This revision would, in our opinion, make
this a compliant good reason definition for purposes of Section 409A and
obviate the need for us to add a six-month delay on settlement of the existing
RSUs.


 


3














 


after the receipt of such notice, and (z) Executive resigns within
ninety (90) days after the date of delivery of the notice referred to in clause
(x) above.


 


(e)           NO MITIGATION; OFFSET.  In the event of termination of Executive’s
employment pursuant to Section 1(d), Executive shall not be obligated to
seek other employment or take any actions to mitigate the payments or
continuation of benefits required under Section 1(d) hereof.  If Executive obtains other employment
(whether or not comparable and whether or not in the same geographic location)
during the period of time in which the Company is required to make Cash
Severance Payments to Executive pursuant to Section 1(d) above, the
amount of any such remaining payments or benefits 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 such period.  For purposes of this Section 1(e),
Executive shall have an obligation to inform the Company regarding Executive’s
employment status following termination and during the period of time in which
the Company is making Cash Severance Payments to Executive as provided under Section 1(d) above.


 


(f)            ACCRUED OBLIGATIONS.  As used in this Agreement, “Accrued Obligations” shall mean the
sum of (i) any portion of Executive’s accrued but unpaid Base Salary
through the date of death or termination of employment for any reason, as the
case may be; (ii) any compensation previously earned but deferred by
Executive (together with any interest or earnings thereon) that has not yet
been paid, is not considered “deferred compensation” subject to Section 409A
and has not otherwise been deferred to a later date pursuant to any deferred
compensation arrangement of the Company to which Executive is a party, if any
(in which case, any such deferred compensation shall be paid in accordance with
the terms of such deferred compensation arrangement and shall not be deemed “Accrued
Obligations” pursuant to this Agreement); (iii) other than in the event of
Executive’s resignation without Good Reason or termination by the Company for
Cause (except as required by applicable law), any portion of Executive’s
accrued but unpaid vacation pay through the date of death or termination of
employment; (iv) any reimbursements that Executive is entitled to receive
under Section 3A(d)(i) of the Agreement; and (v) any vested
benefits or amounts that Executive is otherwise entitled to receive under any
plan, policy, practice or program of or any other contract or agreement with
the Company in accordance with the terms thereof (other than any such plan,
policy, practice or program of the Company that provides benefits in the nature
of severance or continuation pay).


 


2.             TREATMENT OF EXECUTIVE’S INITIAL EQUITY
AWARDS IN THE EVENT OF A CHANGE OF CONTROL OF THE COMPANY.  In the event that, during the Term, there is
consummated a Change of Control (as defined in the Company Incentive Plan), any
portion of the Initial Equity Awards that is outstanding and unvested at the
time of such Change of Control which would have vested during the twenty-four
(24) month period following such Change of Control shall vest as of the date of
such Change of Control and the Initial Equity Awards shall otherwise continue
to vest in accordance with their terms; provided that, for purposes of
this provision, the Cliff Vesting Award shall be treated as though it vested
annually pro rata over its vesting period (e.g., if the Change of Control occurred on the one-year
anniversary of the Effective Date, 75% of the Company RSUs subject to the Cliff
Vesting Award would vest on the date of consummation of the Change of Control
and if the date of termination occurred following the two-year anniversary of
the Effective Date, all of the Company RSUs subject to the Cliff 


 


4

















 


Vesting Award would vest on the date of
consummation of such Change of Control). 
In the event any portion of the Initial Equity Awards remains unvested
following such Change of Control after application of the foregoing sentence,
the agreements effectuating the Change of Control shall provide for the
assumption or substitution of the unvested Initial Equity Awards by the
successor entity (unless the successor entity is the Company, in which case the
unvested Initial Equity Awards shall remain outstanding in accordance with
their terms).  In no event shall any
unvested portion of the Initial Equity Awards be cancelled or forfeited without
value in connection with a Change of Control.


 


3.             CERTAIN
ADDITIONAL PAYMENTS BY THE COMPANY


 


(a)           Anything in this
Agreement to the contrary notwithstanding and except as set forth below, in the
event it shall be determined that any Payment would be subject to the Excise
Tax, then Executive shall be entitled to receive an additional payment (the “Gross-Up Payment”) in an amount such
that, after payment by Executive of all taxes (and any interest or penalties
imposed with respect to such taxes), including, without limitation, any income
taxes (and any interest and penalties imposed with respect thereto) and Excise
Tax imposed upon the Gross-Up Payment, but excluding any income taxes and
penalties imposed pursuant to Section 409A of the Code, Executive retains
an amount of the Gross-Up Payment equal to the Excise Tax imposed upon the
Payments.  Notwithstanding the foregoing
provisions of this Section 3(a), if it shall be determined that Executive
is entitled to the Gross-Up Payment, but that the Parachute Value of all
Payments does not exceed 110% of the Safe Harbor Amount, then no Gross-Up
Payment shall be made to Executive and the amounts payable under this Agreement
shall be reduced so that the Parachute Value of all Payments, in the aggregate,
equals the Safe Harbor Amount.  The
reduction of the amounts payable hereunder, if applicable, shall be made by
reducing the payments and benefits under the following sections in the
following order: (i) Section 1(d)(i) of these Standard Terms and
Conditions, (ii) Section 1(d)(ii) of these Standard Terms and
Conditions and (iii) Section 1(d)(iii) of these Standard Terms
and Conditions.  For purposes of reducing
the Payments to the Safe Harbor Amount, only amounts payable under this Agreement
(and no other Payments) shall be reduced. 
If the reduction of the amount payable under this Agreement would not
result in a reduction of the Parachute Value of all Payments to the Safe Harbor
Amount, no amounts payable under the Agreement shall be reduced pursuant to
this Section 3(a).  The Company’s
obligation to make Gross-Up Payments under this Section 3 shall not be
conditioned upon Executive’s termination of employment.


 


(b)           Subject to the provisions of Section 3(c),
all determinations required to be made under this Section 3, including
whether and when a Gross-Up Payment is required, the amount of such Gross-Up
Payment and the assumptions to be utilized in arriving at such determination,
shall be made by
                ,
or such other nationally recognized certified public accounting firm as may be
designated by Executive (the “Accounting Firm”).  The Accounting Firm shall provide detailed
supporting calculations both to the Company and Executive within fifteen (15)
business days of the receipt of notice from Executive that there has been a
Payment or such earlier time as is requested by the Company.  In the event that the Accounting Firm is
serving as accountant or auditor for the individual, entity or group effecting
the Change of Control, Executive may appoint another nationally recognized
accounting firm to make the determinations required hereunder (which accounting
firm shall then be referred to as the Accounting Firm 


 


5

















 


hereunder). 
All fees and expenses of the Accounting Firm shall be borne solely by
the Company; provided, however,  (i) the Company shall pay the fees and expenses
of the Accounting Firm not later than the end of the calendar year following
the calendar year in which the related work is performed or the expenses are
incurred by the Accounting Firm, (ii) the amount of the Accounting Fees
that the Company is obligated to pay in any given calendar year shall not
affect the Accounting Fees that the Company is obligated to pay in any other
calendar year, and (iii) Executive’s right to have the Company pay such
fees and expenses may not be liquidated or exchanged for any other
benefit.  Any determination by the
Accounting Firm shall be binding upon the Company and Executive.  As a result of the uncertainty in the
application of Section 4999 of the Code at the time of the initial
determination by the Accounting Firm hereunder, it is possible that Gross-Up
Payments that will not have been made by the Company should have been made (the
“Underpayment”), consistent with the
calculations required to be made hereunder. 
In the event the Company exhausts its remedies pursuant to Section 3(c) and
Executive thereafter is required to make a payment of any Excise Tax, the
Accounting Firm shall determine the amount of the Underpayment that has
occurred and any such Underpayment shall be promptly paid by the Company to or
for the benefit of Executive.


 


(c)           Executive shall notify the Company in
writing of any claim by the Internal Revenue Service that, if successful, would
require the payment by the Company of the Gross-Up Payment.  Such notification shall be given as soon as
practicable, but no later than ten (10) business days after Executive is
informed in writing of such claim. 
Executive shall apprise the Company of the nature of such claim and the
date on which such claim is requested to be paid.  Executive shall not pay such claim prior to
the expiration of the thirty (30) day period following the date on which
Executive gives such notice to the Company (or such shorter period ending on
the date that any payment of taxes with respect to such claim is due).  If the Company notifies Executive in writing
prior to the expiration of such period that the Company desires to contest such
claim, Executive shall:


 


(i)            give the Company any
information reasonably requested by the Company relating to such claim,


 


(ii)           take such action in
connection with contesting such claim as the Company shall reasonably request
in writing from time to time, including, without limitation, accepting legal
representation with respect to such claim by an attorney reasonably selected by
the Company,


 


(iii)          cooperate with the
Company in good faith in order effectively to contest such claim; and


 


(iv)          permit the Company to
participate in any proceedings relating to such claim;


 


provided, however, that the Company
shall bear and pay directly all costs and expenses (including additional
interest and penalties) incurred in connection with such contest, and shall
indemnify and hold Executive harmless, on an after-tax basis, for any Excise
Tax or income tax (including interest and penalties) imposed as a result of
such representation and payment of costs 


 


6

















 


and expenses; provided, further, however, (i) the
Company shall pay the costs and expenses not later than the end of the calendar
year following the calendar year in which the costs and expenses are incurred, (ii) the
amount of such costs and expenses that the Company is obligated to pay in any
given calendar year shall not affect the costs and expenses that the Company is
obligated to pay in any other calendar year, and (iii) the Executive’s
right to have the Company pay such costs and expenses may not be liquidated or
exchanged for any other benefit.  Without
limitation on the foregoing provisions of this Section 3(c), the Company
shall control all proceedings taken in connection with such contest, and, at
its sole discretion, may pursue or forgo any and all administrative appeals,
proceedings, hearings and conferences with the applicable taxing authority in
respect of such claim and may, at its sole discretion, either pay the tax
claimed to the appropriate taxing authority on behalf of Executive and direct
Executive to sue for a refund or contest the claim, at the sole cost and
expense of the Company, in any permissible manner, and Executive agrees to
prosecute such contest to a determination before any administrative tribunal,
in a court of initial jurisdiction and in one or more appellate courts, as the
Company shall determine; provided, however, that, if the Company
pays such claim and directs Executive to sue for a refund, the Company shall
indemnify and hold Executive harmless, on an after-tax basis, from any Excise
Tax or income tax (including interest or penalties) imposed with respect to
such payment or with respect to any imputed income in connection with such
payment; and provided, further, that any extension of the statute
of limitations relating to payment of taxes for the taxable year of Executive
with respect to which such contested amount is claimed to be due is limited
solely to such contested amount. 
Furthermore, the Company’s control of the contest shall be limited to
issues with respect to which the Gross-Up Payment would be payable hereunder,
and Executive shall be entitled to settle or contest, as the case may be, any
other issue raised by the Internal Revenue Service or any other taxing authority.


 


(d)           If, after the receipt by Executive of a
Gross-Up Payment or payment by the Company of an amount on Executive’s behalf
pursuant to Section 3(c), Executive becomes entitled to receive any refund
with respect to the Excise Tax to which such Gross-Up Payment relates or with
respect to such claim, Executive shall (subject to the Company’s complying with
the requirements of Section 3(c), if applicable) promptly pay to the
Company the amount of such refund (together with any interest paid or credited
thereon after taxes applicable thereto). 
If, after payment by the Company of an amount on Executive’s behalf
pursuant to Section 3(c), a determination is made that Executive shall not
be entitled to any refund with respect to such claim and the Company does not
notify Executive in writing of its intent to contest such denial of refund
prior to the expiration of thirty (30) days after such determination, then the
amount of such payment shall offset, to the extent thereof, the amount of
Gross-Up Payment required to be paid.


 


(e)           Any Gross-Up Payment, as determined pursuant
to this Section 3, shall be paid by the Company to Executive within five (5) days
of the receipt of the Accounting Firm’s determination; provided that,
the Gross-Up Payment shall in all events be paid no later than the end of
Executive’s taxable year next following Executive’s taxable year in which the Excise
Tax (and any income or other related taxes or interest or penalties thereon) on
a Payment are remitted to the Internal Revenue Service or any other applicable
taxing authority or, in the case of amounts relating to a claim described in Section 3(c) that
does not result in the remittance of any federal, state, local and foreign
income, excise, social security and other taxes, the calendar year 


 


7

















 


in which the claim is finally settled or
otherwise resolved.  Notwithstanding any
other provision of this Section 3, the Company may, in its sole
discretion, withhold and pay over to the Internal Revenue Service or any other
applicable taxing authority, for the benefit of Executive, all or any portion
of any Gross-Up Payment, and Executive hereby consents to such withholding.


 


(f)            Definitions.  The following terms shall have the following
meanings for purposes of this Section 3.


 


(i)            “Excise
Tax” shall mean the excise tax imposed by Section 4999 of
the Code, together with any interest or penalties imposed with respect to such
excise tax.


 


(ii)           “Parachute
Value” of a Payment shall mean the present value as of the date
of the change of control for purposes of Section 280G of the Code of the
portion of such Payment that constitutes a “parachute payment” under Section 280G(b)(2),
as determined by the Accounting Firm for purposes of determining whether and to
what extent the Excise Tax will apply to such Payment.


 


(iii)          “Payment”
shall mean any payment or distribution in the nature of compensation (within
the meaning of Section 280G(b)(2) of the Code) to or for the benefit
of Executive, whether paid or payable pursuant to this Agreement or otherwise.


 


(iv)          “Safe
Harbor Amount” means 2.99 times Executive’s “base amount,”
within the meaning of Section 280G(b)(3) of the Code.


 


4.             CONFIDENTIAL
INFORMATION; NON-COMPETITION; NON-SOLICITATION; AND PROPRIETARY RIGHTS.


 


(a)           CONFIDENTIALITY.  Executive acknowledges that, while employed
by the Company, Executive will occupy a position of trust and confidence.  The Company, its subsidiaries and/or
affiliates shall provide Executive with “Confidential Information” as referred
to below.  Executive shall not, except as
may be required to perform Executive’s duties hereunder 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 its subsidiaries
and/or affiliates.


 


“Confidential Information” shall mean
information about the Company or any of its subsidiaries or affiliates, and
their respective businesses, employees, consultants, contractors, clients and
customers that is not disclosed by the Company or any of its subsidiaries or
affiliates for financial reporting purposes or otherwise generally made
available to, or in the possession of, the public (other than by Executive’s
breach of the terms hereof) and that was learned or developed by Executive in
the course of employment by the Company or any of its subsidiaries or affiliates,
including (without limitation) any proprietary knowledge, trade secrets, data,
formulae, information and client and customer lists and all papers, resumes,
and records (including computer records) of the documents containing such
Confidential Information. 
Notwithstanding the foregoing provisions, if Executive is required to
disclose any such confidential or proprietary information pursuant to
applicable law or a subpoena or court order, 


 


8

















 


Executive shall promptly notify
the Company in writing of any such requirement so that the Company may seek an
appropriate protective order or other appropriate remedy or waive compliance
with the provisions hereof.  Executive
shall reasonably cooperate with the Company to obtain such a protective order
or other remedy.  If such order or other
remedy is not obtained prior to the time Executive is required to make the
disclosure, or the Company waives compliance with the provisions hereof,
Executive shall be permitted to disclose only that portion of the confidential
or proprietary information which he is advised by counsel that he is legally
required to so disclose.  Executive
acknowledges that such Confidential Information is specialized, unique in
nature and of great value to the Company and its subsidiaries or affiliates,
and that such information gives the Company and its subsidiaries or affiliates
a competitive advantage.  Executive
agrees to deliver or return to the Company, at the Company’s request at any time
or upon termination or expiration 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 subsidiaries or affiliates or
prepared by Executive in the course of Executive’s employment by the Company
and its subsidiaries or 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 this Agreement, and other
good and valuable consideration provided hereunder, the receipt and sufficiency
of which are hereby acknowledged by Executive, Executive hereby agrees and
covenants that, during Executive’s employment hereunder 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 Section 4(b), (i) a “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) (x) at the time of Executive’s termination
provides or planned to provide such Similar Products or (y) during
Executive’s employment provided, such Similar Products; (ii) “Similar Products” means any products
or services that are the same or substantially similar to any of the types of
products or services that the Company and/or any other business for which
Executive may, during the Term, have direct or indirect responsibility
hereunder provides or planned to provide during Executive’s employment
hereunder; and (iii) 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. 
Executive 


 


9

















 


acknowledges that Executive’s
covenants under this Section 4(b) are a material inducement to the
Company’s entering into this Agreement.


 


(c)           NON-SOLICITATION OF EMPLOYEES.  Executive recognizes that he will possess
Confidential Information about other employees, consultants and contractors of
the Company and its subsidiaries or affiliates relating to their education,
experience, skills, abilities, compensation and benefits, and inter-personal
relationships with suppliers to and customers of the Company and its
subsidiaries or affiliates.  Executive
recognizes that the information he will possess about these other employees,
consultants and contractors is not generally known, is of substantial value to
the Company and its subsidiaries or affiliates in developing their respective
businesses and in securing and retaining customers, and will be acquired by
Executive because of Executive’s business position with the Company.  Executive agrees that, during the Restricted
Period, Executive will not, directly or indirectly, solicit or recruit any
employee of (i) the Company and/or (ii) its subsidiaries and/or
affiliates with whom Executive has had direct contact during his employment
hereunder, 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 such Confidential Information or trade secrets
about employees of the Company or any of its subsidiaries or affiliates to any
other person except within the scope of Executive’s duties hereunder.  Notwithstanding the foregoing, Executive is
not precluded from soliciting any individual who (i) responds to any
public advertisement or general solicitation or (ii) has been terminated by the
Company prior to the solicitation.


 


(d)           NON-SOLICITATION OF
CUSTOMERS.  During the Restricted
Period, Executive shall not solicit any customers of (i) the Company and/or
(ii) any of its subsidiaries or affiliates with whom Executive has direct
contact during his employment hereunder or encourage (regardless of who
initiates the contact) any such customers to use the facilities or services of
any competitor of (i) the Company and/or (ii) any of its subsidiaries
or affiliates with whom Executive has direct contact during his employment
hereunder.


 


(e)           NON-SOLICITATION OF
BUSINESS PARTNERS.  During the
Restricted Period, Executive shall not, without the prior written consent of
the Company, persuade or encourage any business partners or business affiliates
of (i) the Company and/or (ii) any of its subsidiaries and/or affiliates
with whom Executive has direct contact during his employment hereunder, in each
case, to cease doing business with the Company and/or any of its subsidiaries
and/or affiliates or to engage in any business competitive with the Company
and/or its subsidiaries and/or affiliates.


 


(f)            PROPRIETARY RIGHTS;
ASSIGNMENT.  All Employee
Developments (defined below) shall be considered works made for hire by
Executive for the Company or, as applicable, its subsidiaries or 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 his
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 


 


10

















 


applicable, its subsidiaries or
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
the Term, 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, in each case, (i) that (A) concerns or
relates to the actual or anticipated business, research or development
activities, or operations of the Company or any of its subsidiaries or
affiliates, or (B) 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 subsidiaries or affiliates, whether created alone or with
others, during or after working hours, or (C) uses, incorporates or is
based on Company equipment, supplies, facilities, trade secrets or inventions
of any form or type, and (ii) that is developed, conceived or reduced to
practice during the period that Executive is employed with the Company.  All Confidential Information and all Employee
Developments are and shall remain the sole property of the Company or any of
its subsidiaries or affiliates. 
Executive shall acquire no proprietary interest in any Confidential
Information or Employee Developments developed or acquired during the Term.  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 proprietary rights without the need
for a separate writing or additional compensation.  Executive shall, both during and after the
Term, 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.


 


(g)           COMPLIANCE WITH POLICIES AND PROCEDURES.  During the period that Executive is employed
with the Company hereunder, Executive shall adhere to the policies and
standards of professionalism set forth in the Company’s Policies and Procedures
applicable to all employees of the Company and its subsidiaries and/or
affiliates as they may exist from time to time.


 


(h)           SURVIVAL OF
PROVISIONS.  The obligations
contained in this Section 4 shall, to the extent provided in this Section 4,
survive the termination or expiration of Executive’s employment with the
Company 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 this
Section 4 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.


 


5.             TERMINATION OF PRIOR AGREEMENTS.  This Agreement constitutes the entire
agreement between the parties and, as of the Effective Date, terminates and
supersedes (i) any and all prior agreements and understandings (whether
written or oral) between the parties with respect to the subject matter of this
Agreement and (ii) the Prior Employment Agreement.  


 


11

















 


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.


 


6.             ASSIGNMENT;
SUCCESSORS.  This Agreement is personal
in its nature and none of the parties hereto shall, without the consent of the
other, assign or transfer this Agreement or any rights or obligations
hereunder; provided that 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.


 


7.             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.


 


8.             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. 
References to “this Agreement” or the use of the term “hereof” shall
refer to these Standard Terms and Conditions and the Employment Agreement
attached hereto, taken as a whole.


 


9.             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 any termination of Executive’s employment by
the Company during the Term, the Company’s contractual obligations to Executive
shall be fulfilled through compliance with its obligations under Section 1
of the Standard Terms and Conditions and, in the event of a termination of
Executive’s employment by the Company following a Change of Control, Section 2
of the Standard Terms and Conditions.


 


Executive
expressly agrees and understands that the remedy at law for any breach by
Executive of Section 4 of the Standard Terms and Conditions 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 such Section 4, 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 4,
which may be pursued by or available to the Company.


 


12

















 


10.           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.


 


11.           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.


 


12.           LEGAL FEES;
INDEMNIFICATION; DIRECTOR AND OFFICER INSURANCE.


 


(a)           In the event of any
contest or dispute between the Company and Executive with respect to this
Agreement or Executive’s employment hereunder, each of the parties shall be
responsible for its respective legal fees and expenses; provided, however,
that if Executive prevails on any material issue in any action, the Company
shall reimburse Executive any reasonable legal fees and expenses incurred at
any time from the Effective Date of this Agreement through Executive’s
remaining lifetime (or, if longer, through the 20th anniversary of
the Effective Date).  The amount of any
such fees and expenses that the Company is obligated to pay in any given
calendar year shall not affect the fees and expenses that the Company is
obligated to pay in any other calendar year, and Executive’s right to have the
Company pay such fees and expenses may not be liquidated or exchanged for any
other benefit.


 


(b)           The Company shall
indemnify and hold Executive harmless for acts and omissions in Executive’s
capacity as an officer, director or employee of the Company and/or any of its
subsidiaries to the maximum extent permitted under applicable law, including
the advancement of fees and expenses; provided, however, that
neither the Company, nor any of its subsidiaries or affiliates shall indemnify
Executive for any losses incurred by Executive as a result of acts described in
Section 1(c) of this Agreement.


 


(c)           During the period that Executive is employed
with the Company hereunder and for a period of at least three (3) years after
Executive’s termination of employment from the Company, the Company shall
provide Executive with directors’ and officers’ liability insurance coverage
for his acts and omissions while an officer or director of the Company on a
basis no less favorable to Executive than the coverage the Company provides
generally to its other directors and officers.


 


[The Signature Page Follows]


 


13

















 


ACKNOWLEDGED AND AGREED: 


 


Date: July 31, 2008


 


	
   

  	
  INTERVAL
  LEISURE GROUP, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Gregory
  Blatt

  
	
   

  	
  By: Gregory
  Blatt

  
	
   

  	
  Title: Vice
  President

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  /s/ Craig M.
  Nash

  
	
   

  	
  CRAIG M. NASH