ESCROW AGREEMENT AND JOINT ESCROW INSTRUCTIONS
Dated: As of January 22, 2002
Loeb & Loeb LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
Dear Sirs:
Booth Creek Ski Group, Inc., a Delaware corporation (the "Corporation")
and Xxxxxxx X. Xxxx (the "Executive") hereby appoint Loeb & Loeb LLP, a New York
limited liability partnership ("Escrow Agent" or "you") as escrow agent to hold,
safeguard and disburse the Escrow Shares (as defined in Paragraph 1, below), and
to perform the duties and procedures to be performed by it as set forth in and
pursuant to the provisions of this Escrow Agreement and Joint Escrow
Instructions (the "Escrow Agreement"). Escrow Agent hereby accepts such
appointment. You are hereby authorized and directed to hold the Escrow Shares
and all documents delivered to you pursuant to the terms of that certain
restricted stock agreement (the "Restricted Stock Agreement") between the
Corporation and the Executive, a copy of which is appended to this Escrow
Agreement as Exhibit A, and in accordance with the instructions contained
herein. Capitalized terms used herein but not otherwise defined will have the
meanings ascribed to them in the Restricted Stock Agreement.
1. In connection with the grant by the Corporation to the Executive of
the shares of Restricted Stock as set forth in the Restricted Stock Agreement,
the Corporation has delivered to you simultaneously with its execution hereof,
certificates representing the number of shares issued or to be issued by the
Corporation to Executive pursuant to the Restricted Stock Agreement, which
certificates have been duly executed by officers of the Corporation, and the
Executive has delivered to you simultaneously with his execution hereof, stock
powers, duly executed in blank, with respect to such shares. Executive and the
Corporation hereby irrevocably authorize and direct you to take custody of such
share certificates and stock powers, as provided in Section 3 of the Restricted
Stock Agreement, and with respect to any additions and substitutions to said
shares as set forth therein. (Shares issued to Executive under the Restricted
Stock Agreement and held by you in escrow in accordance herewith are hereinafter
referred to as the "Escrow Shares".)
2. Executive irrevocably authorizes the Corporation to deposit with you
any and all certificates evidencing the Escrow Shares. Executive does hereby
irrevocably constitute and appoint you as his attorney-in-fact and agent for the
term of the escrow to execute with respect to the Escrow Shares all documents
necessary or appropriate to make such Escrow Shares negotiable and to complete
any transaction herein contemplated.
3. Except as otherwise provided herein, none of the certificates
representing the Escrow Shares deposited with you hereunder shall be released to
the Executive prior to the respective vesting date therefor. Subject to the
provisions of this paragraph, upon the vesting of the Escrow Shares (i.e., when
they are no longer forfeitable other than for forfeiture due to the termination
of Executive under circumstances described in Section 5(b) of the Restricted
Stock Agreement) pursuant to Section 5(a) of the Restricted Stock Agreement, you
will release the certificates representing the Escrow Shares from escrow and
deliver the certificates to the Executive. Upon the termination of Executive's
employment with the Corporation, any Escrow Shares then remaining in escrow
shall be promptly returned to the Corporation for cancellation. For this
purpose, employment includes employment with an affiliate of the Corporation,
and a transfer from the Corporation to an affiliate or visa versa, or from one
affiliate to another, is not a termination of employment.
4. If at the time of termination of the escrow you should have in your
possession any documents, securities, or other property belonging to Executive,
you shall deliver all of same to Executive and shall be discharged of all
further obligations hereunder.
5. Your duties hereunder may be altered, amended, modified or revoked
only by a writing signed by all of the parties hereto.
6. You shall be obligated only for the performance of such duties as
are specifically set forth herein and may rely and shall be protected in relying
or refraining from acting on any instrument reasonably believed by you to be
genuine and to have been signed or presented by the proper party or parties. You
shall be entitled to employ such legal counsel and other experts as you may deem
necessary to advise you properly in connection with your obligations hereunder,
you may rely upon the advice of such counsel, and may pay such counsel
reasonable compensation therefor. The fees of, and the expenses incurred by you,
if any, in connection with carrying out your duties hereunder shall be paid by
the Corporation. You shall not be personally liable for any act you may do or
omit to do hereunder as Escrow Agent or as attorney-in-fact for Executive while
acting in good faith, and any act done or omitted by you pursuant to the advice
of your own attorneys shall be conclusive evidence of such good faith. Executive
acknowledges that you act as legal counsel for the Corporation and Executive
agrees that in the event of a dispute hereunder, you may continue to act as
legal counsel to the Corporation in general and in connection with this
Agreement.
7. You are hereby expressly authorized to disregard any and all orders
or demands given unilaterally by the Corporation or the Executive or by any
other person or corporation, excepting only orders or process of courts of law,
and you are hereby expressly authorized to comply with and obey orders,
judgments or decrees of any such court. In case you obey or comply with any such
order, judgment or decree, you shall not be liable to any of the parties hereto
or to any other person, firm or corporation by reason of such compliance,
not-withstanding any such order, judgment or decree being subsequently reversed,
modified, annulled, set aside, vacated or found to have been entered without
jurisdiction. You shall not be liable in any respect on account of the identity,
authorities or rights of the parties executing or delivering or purporting to
execute or deliver the Restricted Stock Agreement or any documents or papers
deposited or called for hereunder. You shall not be liable for relinquishing of
any rights under the Statute of Limitations with respect to this Escrow
Agreement or any documents deposited with you.
8. Your responsibilities as Escrow Agent hereunder shall terminate if
you resign after giving written notice thereof to each party, or by mutual
agreement in writing of the Corporation and the Executive. In the event of any
such termination, the Corporation shall appoint a successor Escrow Agent and you
agree to continue to hold all documents then in your possession pursuant to this
Escrow Agreement until such successor is appointed or in accordance with Section
10 hereof.
9. If you reasonably require other or further instruments in connection
with this Escrow Agreement or obligations in respect hereto, the necessary
parties hereto shall join in furnishing such instruments.
10. It is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or right of possession of the Escrow
Shares held by you hereunder, you are authorized and directed to retain in your
possession without liability to anyone all or any part of said Escrow Shares
until such disputes shall have been settled either by mutual written agreement
of the Corporation and the Executive or by a final order, decree or judgment of
a court of competent jurisdiction after the time for appeal has expired and no
appeal has been perfected, but you shall be under no duty whatsoever to
institute or defend any such proceedings.
11. Any notice required or permitted hereunder shall be given in
writing and shall be deemed effectively given upon personal delivery or upon
deposit in the United States Post Office, by registered or certified mail with
postage and fees prepaid, addressed to each of the other parties thereunto
entitled at the following addresses, or at such other addresses as a party may
designate by ten days' advance written notice to each of the other parties
hereto.
CORPORATION Booth Creek Ski Group, Inc.
0000 X. Xxxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxx, Xxxxxxxx 00000
Attention: President and Chief Operating Officer
EXECUTIVE with a copy to the Company at the same address,
Attention: General Counsel
Xxxxxxx X. Xxxx
000 Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
Loeb & Loeb LLP
ESCROW AGENT: 000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxx, Esq.
12. The parties hereunder (other than the Escrow Agent), jointly and
severally, agree to indemnify, defend and hold the Escrow Agent, and all of its
partners, associates, officers, directors, members, managers and other
employees, harmless from and against any and all claims, losses, damages,
liabilities and expenses, including reasonable attorneys' fees (either paid to
retained attorneys or representing the fair value of legal services rendered by
the Escrow Agent itself), incurred as a result of the Escrow Agent's acceptance
of appointment as Escrow Agent or its performance hereunder; provided any such
performance by Escrow Agent is not taken in willful disregard of the terms of
this Escrow Agreement or involves gross negligence. The obligations of the
parties hereto to the Escrow Agent under this paragraph shall survive the
termination of this Agreement.
13. In the event that for any reason the Escrow Agent shall be
uncertain as to its duties or rights hereunder, or shall receive instructions,
claims or demands from any party hereto which, in its opinion or otherwise,
conflict with any of the provisions of this Agreement, it shall be entitled, but
not obligated, upon written notice to the parties hereto, to deposit any or all
of the Escrowed Shares, this Escrow Agreement and the Restricted Stock Agreement
(the "Escrowed Documents") with the Supreme Court of the State of New York, New
York County (the "Court") in connection with an action in the nature of
interpleader. Upon deposit of any or all of the Escrowed Documents in the Court,
Escrow Agent shall be relieved and discharged of all obligations hereunder with
respect to the Escrowed Documents so deposited with the Court.
14. This Escrow Agreement shall be binding upon and inure to the
benefit of the parties hereto, and their respective successors and permitted
assigns. This Escrow Agreement may be executed in counterparts, each of which
shall be deemed an original and all of which together constitute one and the
same instrument.
Very truly yours,
CORPORATION
Booth Creek Ski Group, Inc.
By:/ s / Xxxxxxxxxxx X. Xxxxx
-----------------------------
Name: Xxxxxxxxxxx X. Xxxxx
Title: President
EXECUTIVE:
/ s / Xxxxxxx X. Xxxx
----------------------
Xxxxxxx X. Xxxx
By signing below in acceptance of this Escrow Agreement, you become a party
hereto only for the purpose of said Escrow Agreement, but you do not become a
party to the Restricted Stock Agreement.
Accepted and Agreed to:
ESCROW AGENT:
Loeb & Loeb LLP
By: / s / Xxxxxxx X. Xxxx
---------------------
Xxxxxxx X. Xxxx
Exhibit A
Restricted Stock Agreement
