EMPLOYMENT AGREEMENT
EMPLOYMENT AGREEMENT dated as of May 1, 2000, between Booth Creek Ski
Group, Inc., a Delaware corporation ("Parent"), Booth Creek Ski Holdings, Inc.,
a Delaware corporation ("Holdings"; the term "Company" shall mean "each of
Parent and Holdings" unless the context of the term contains the word "either"
or "neither" or language of like import, in which case the term shall mean
either or neither of Parent or Holdings, as the case may be) and Xxxxxxxxx X.
Xxxx ("Executive").
The parties agree as follows:
1. Employment. Company agrees to employ Executive during the Employment
Term, as defined in Section 3, upon the terms and conditions hereinafter set
forth, and Executive agrees to be so employed.
2. Titles and Duties. Company shall employ Executive as Executive Vice
President and Chief Financial Officer. Executive shall be responsible for
Company's strategic planning, financial, and accounting operations and perform
such particular or additional duties, consistent with her office, as may be
assigned by Company's president ("president"), to whom the Executive shall
directly report, or board of directors ("board"). Executive shall render her
services faithfully and to the best of her ability and, subject to Section 5.h,
devote her full business time and attention to the services to be rendered by
her hereunder.
3. Term of Employment; Termination.
a. The period during which Executive shall be employed under this
Agreement (the "Employment Term") commenced as of May 1, 2000 and shall
continue through October 31, 2003, unless the Employment Term shall be sooner
terminated as provided herein.
b. The Employment Term shall terminate prior to any date otherwise
specified in Section 3.a upon
i. Executive's death or disability ("disability" shall mean any
physical or mental incapacity that prevents Executive in a material respect
from performing Executive's duties for either company as herein provided for a
continuous period of 90 days or an aggregate period of 150 days during any
consecutive twelve-month period, and disability shall be deemed to have
occurred as of the end of the applicable period);
ii. notice from either Company of termination for cause ("cause"
shall mean that Executive shall have (w) committed a felony, regardless whether
in the course of her employment, excluding offenses under laws regulating motor
vehicle traffic or skiing, but not excluding such offenses, if they arise from
Executive's failure to cause Company to conduct its business in accordance with
law (provided that, if either Company shall terminate Executive's employment
pursuant to this subclause (w), and Executive ultimately shall be acquitted,
such termination shall be deemed a termination pursuant to clause iii, as of
the date of termination pursuant to this subclause (w)); (x) engaged in fraud,
embezzlement involving property of either Company or otherwise, or other
intentional wrongful act that materially impairs the goodwill or business of
either Company; (y) any willful failure to carry out any material
responsibilities hereunder or to comply with any reasonable instruction of the
board or president or Company policy, not cured, within a reasonable time of
notice from the board or president; or (z) otherwise materially breached any
provision of this Agreement);
iii. notice from either Company of termination other than for
cause;
iv. 60 days' notice from Executive given within six months from
the date that CIBC WG Argosy Merchant Fund 2, L.L.C., Xxxx Xxxxxxx Life
Insurance Company, and their affiliates (the "Investors") together own
beneficially Parent capital stock entitling them to cast less than a majority
of the votes entitled to be cast on any matter upon which a holder of a share
of stock of a Delaware corporation of which only one class of stock is
outstanding would be entitled to vote, treating any Parent outstanding
nonvoting stock that is convertible into Parent voting stock as if it had been
so converted; or
v. 30 days notice from Executive given within two months after
Executive's duties and authority have been materially reduced from those
existing on the date hereof, unless such duties and authority are restored
within such 30-day period.
c. If the Employment Term shall terminate pursuant to any of clauses
i through v of Section 3.b, Company's obligations hereunder shall be fully
satisfied,
i. upon payment to Executive or her estate of an amount equal to
any unpaid expense reimbursement and unpaid salary for the month in which her
death or disability shall occur, in case of termination pursuant to clause i;
ii. upon payment to Executive of any unpaid expense
reimbursement and unpaid salary through the date of termination, in the event
of termination pursuant to clause ii, provided, however, that such payment
shall not prevent Company from seeking relief respecting any claim it might
have against Executive hereunder or otherwise; or
iii. upon payment to Executive, within 10 days after termination
pursuant to any of clause iii, iv, or v, of any unpaid expense reimbursement
and of an amount equal to the sum of (x) the amount of any unpaid salary
through the date of termination plus (y) the product obtained by multiplying
Executive's Base Salary by 1.5., except that Company shall, until the sooner of
18 months from date of termination or Executive's becoming eligible for
comparable health, disability, and life insurance benefits from new employment,
continue to provide Executive the Company insurance benefits in effect
respecting Executive immediately prior to occurrence of the event resulting in
the termination.
4. Compensation and Benefits.
a. Holdings shall pay Executive, in accordance with Holdings'payroll
practices applicable to its salaried executives, a Base Salary at the rate of
Two Hundred Fifty Thousand Dollars ($250,000) per year, subject to increase,
but not decrease, after the first fiscal year end occurring during the
Employment Term, as the parties may agree.
b. The parties contemplate that prior to each fiscal year, Holdings'
board of directors will establish reasonable performance incentive goals for
Executive for the ensuing fiscal year, with a bonus target of 50% of
Executive's Base Salary for such fiscal year, if the goals are obtained.
c. During the Employment Term, Executive shall be eligible to
participate in the health, disability, and retirement plans offered to
executives of Company or any of its related entities engaged in operating a ski
resort in accordance with the terms of those plans, at participation levels and
with benefits not less favorable than those provided to the plans' respective
highest ranking participants. Promptly after this Agreement shall have been
executed, Company will obtain and, thereafter during the Employment Term,
maintain disability insurance coverage for Executive in amounts, for such
periods, and under such conditions, as are customary. During the Employment
Term, Company shall not materially reduce the benefits required to be provided
under this Section from their levels in effect at the commencement of the
Employment Term.
d. Promptly following adoption of, and in accordance with, a stock
bonus/option plan (the "Plan"), Parent shall issue to Executive a number of
shares of Parent Class B Common Stock (the "Plan Shares") that will equal 5% of
the sum of the number of shares of Parent common stock outstanding and issuable
on exercise or conversion of outstanding rights to buy or securities
convertible into common stock (including the shares to be granted pursuant to
this clause or otherwise to be reserved for issuance under the Plan)
outstanding as of the date hereof. If Parent does not adopt the Plan having
substantially the terms set forth in Exhibit A, Parent shall in good faith
establish a cash bonus plan for Executive that shall substantially match the
economic benefits of the Plan. Should any Investor make any equity investment
directly in any business controlled by or under common control with Parent, as
to which Executive has, at Company's request, provided material assistance in
negotiating or overseeing, Company shall make such arrangement as they shall
reasonably deem appropriate to put Executive in the same position hereunder
with respect to such business as Executive would have been if such business
were wholly owned by Parent, and such equity investment had been made in Parent
to fund such business.
i. If either Company shall terminate the Employment Term
pursuant to clause ii of Section 3.b, or Employee shall terminate the
Employment Term in breach hereof, Executive shall forfeit to Parent the
percentage of the Plan Shares set forth below, if such termination shall occur
prior to November 1 of the year set forth opposite such percentage, and Company
shall have the right, exercisable by notice to Executive given within one year
after the date of such termination, to buy from Executive the Plan Shares not
forfeited at their fair market value, determined as set forth below:
Executive shall forfeit if the Employment Term
the following percentage terminates prior to
of Plan Shares, November 1 of,
------------------------ ------------------------
80% 2000
60% 2001
40% 2002
20% 2003
Notwithstanding the preceding, Executive shall forfeit all of the Plan Shares
to Parent, if either Company shall terminate Executive's employment pursuant to
clause (w) of Section 3.b.ii, respecting a felony that Executive shall commit
in the course of her employment or in connection with either Company, or
pursuant to clause (x) of such Section, but only for events occurring in the
course of her employment or in connection with either Company or pursuant to
clause (z) of such Section.
ii. Except pursuant to Section 3 of a Stockholders Agreement
(the "Stockholders Agreement") executed or to be executed between Executive,
Xxxxxxxxxxx X. Xxxxx, Xxxx Xxxxxxx Life Insurance Company, Xxxxxxx Mezzanine
Partners L.P., CIBC WG Argosy Merchant Fund 2, L.L.C., Co-Investment Merchant
Fund, LLC, and Parent, Executive shall not sell or otherwise transfer any Plan
Share or interest (including any security interest) in any Plan Share so long
as such Plan Share shall remain subject to forfeiture.
iii. If, during the term of the Stockholders Agreement,
Executive shall receive from a financially responsible unaffiliated person (the
"Offeror") a written bona fide offer (the "Bona Fide Offer") to purchase for
cash any Parent capital stock held by Executive ("Offered Shares"), which Bona
Fide Offer otherwise shall be in accordance with this agreement and which
Executive shall desire to accept, Executive shall give written notice (the
"Notice") to such effect to Parent and the Investors. The Notice shall also set
forth the name and address of the Offeror, the price and other terms of the
Bona Fide Offer, and shall contain an offer (the "Notice Offer"), irrevocable
during the Company Option Period (as defined in Section 4.d., clause iii.a), to
sell the Offered Shares to Parent or its designees, and, irrevocable during the
Investor Option Period (as defined in Section 4.d, clause iii.b), to sell the
Offered Shares to the Investors, at the price and on the other terms contained
in the Bona Fide Offer and pursuant to the other provisions of this Agreement.
The Notice shall be accompanied by a copy of the Bona Fide Offer.
a) Parent shall have the right to accept the Notice Offer
with respect to any or all of the Offered Shares, exercisable by delivery of a
written notice of acceptance given to Executive and Investors within 30 days
after delivery of the Notice ("Company Option Period"). Parent's acceptance
shall also state the amount of capital stock, if any, that each Investor would
be entitled to purchase pursuant to Section 4.d, clause iii.b), if each
Investor accepted the Notice Offer with respect to the full proportionate
amount referred to in the first sentence of such clause.
b) Each Investor shall have the right to accept the Notice
Offer with respect to that proportion of the Offered Shares as to which Parent
shall have failed to accept the Notice Offer equal to such Investor's
proportion of Parent capital stock owned by all Investors, exercisable by
delivery of a written notice of acceptance given to Executive and Investors
within 40 days after delivery of the Notice ("Investor Option Period"). Any
Investor that shall accept the Notice Offer respecting the full proportionate
amount referred to in the preceding sentence may also state in its acceptance
the maximum number of additional Offered Shares that the Investor shall wish to
buy, if any other Investor shall not accept the Notice Offer with respect to
its full proportionate amount. If the total number of Offered Shares that
Investors state they shall wish to buy pursuant to the preceding sentence shall
exceed the amount available pursuant thereto, each such Investor shall purchase
that proportion of the additional Offered Shares equal to such Investor's
proportion of Parent capital stock owned by all such Investors. The closing of
any sale of Offered Shares to Investors shall occur concurrently with or the
closing of any sale of such Offered Shares to Parent, or if none are to be sold
to Parent, within 70 days after delivery of the Notice.
c) Should Parent and Investors fail to accept the Notice
Offer with respect to all of the Offered Shares, then Executive shall be
entitled, for a period of 30 days following the expiration of the Investor
Option Period, to close the sale of all, but not less than all, of the Offered
Shares to the Offeror on the terms and conditions set forth in the Bona Fide
Offer. If Executive shall fail to so sell the Offered Shares, Executive shall
not thereafter sell the Offered Shares, except after again complying with this
Section 4.d, clause iii.
iv. The closing of any Parent purchase of Plan Shares or other
Parent capital stock held by Executive shall occur within 30 days of Parent's
notice of exercise of right to buy, but not before the expiration of the
Investor Option Period. At the closing, Executive shall deliver certificates
representing the capital stock to be sold, endorsed in blank or accompanied by
stock powers executed in blank, with signatures guaranteed and any required
stock transfer stamp attached, against payment of the amount due at closing in
immediately payable funds. In the case of a purchase pursuant to Section 4.d.i,
20% of the purchase price will be due at the closing and the balance in four
equal annual installments; Parent will deliver a promissory note, in customary
form as Parent and Executive shall reasonably agree, to evidence Parent's
obligation to pay the balance; and, to secure payment of the note, Parent will
pledge the purchased Plan Shares pursuant to a Pledge Agreement in customary
form as Parent and Executive shall reasonably agree. Upon any sale of any Plan
Share (x) to Parent pursuant to this Agreement or (y) to a third party, not in
violation of this Agreement or other agreement relating to any Plan Share to
which Executive and Parent shall be a party, Parent shall pay Executive a bonus
per share sold equal to the Negative Equity Makeup Amount, determined as set
forth below.
v. The fair market value of a Plan Share shall mean the quotient
obtained by dividing (x) the excess of (I) the sum of Enterprise Value, as
hereinafter defined, for the fiscal year ended immediately before the date as
of which fair market value is to be determined, plus the CE Proceeds, as
hereinafter defined, as of such date over (II) the total of the face amounts of
Parent's 12% notes made to the Investors ("Investor Notes") outstanding on the
last day of such fiscal year by (y) the Adjusted Shares Outstanding, as
hereinafter defined. "Negative Equity Makeup Amount" as of any date shall be
determined by dividing (I) any excess of (A) the lesser of (i) the sum of the
total of the face amounts of the Investor Notes outstanding on such date plus
the amounts of all cash repayments of principal and cash payments of interest
thereon during the Employment Term through such date or (ii) the sum of
Enterprise Value for the fiscal year ended immediately before such date and the
CE Proceeds over (B) $60,000,000 by (II) the Adjusted Shares Outstanding. CE
Proceeds as of any date shall mean the sum of the products obtained by
multiplying the exercise or conversion price of each CE Security outstanding on
such date by the number of shares of common stock issuable upon exercise,
exchange, or conversion of such CE Security. CE Security shall mean each
warrant, stock option, convertible security, or other right or security
exercisable or exchangeable for or convertible into Parent common stock,
insofar as its exercise or conversion price is less than the quotient obtained
by dividing Enterprise Value as of such date by the number of shares of Parent
common stock outstanding on such date, except that none of the Investor Notes
shall constitute a CE Security. Adjusted Shares Outstanding shall mean as of
any date the number of shares of Parent common stock outstanding as of such
date plus the number of shares of Parent common stock issuable upon exercise,
exchange, or conversion of all CE Securities outstanding on such date.
e. Holdings will pay premiums on Executive's life insurance policy in
effect as of the date of this Agreement, which policy Executive shall continue
to own.
f. Executive and an individual specified by Executive shall be given
a full lifetime membership in each club that is now, or at any time during the
Employment Term shall be, 100%-owned by Company or any person controlling,
controlled by or under common control with Company (an "affiliate"), and
Company shall pay, waive, or cause to be paid or waived any initiation fee or
dues payable during the Employment Term associated with such membership.
Insofar as contractually permitted, Executive and an individual specified by
Executive shall be given a full lifetime membership in each club in which
Company or any affiliate shall have an ownership interest, and Company shall
waive or cause to be waived any initiation fee or dues payable during the
Employment Term associated with such membership.
g. Holdings shall cause to be conveyed to Executive one single-family
lot (approximately 1/2 acre) that Executive shall select from the Northstar
Resort in development parcel O or an approximately two-acre lot identified on
Exhibit B, as Executive shall elect, subject to the next sentence. If only one,
but not both, of such development parcels shall have been subdivided before
October 31, 2001, then Holdings shall cause to be conveyed to Executive the lot
identified in the preceding sentence included in the development parcel that so
shall have been subdivided. If neither development parcel shall have been
subdivided by such date, or, before such date, either Company shall terminate
the Employment Term pursuant to Section 3.b, clause iii, iv, or v, Holdings
shall instead pay to Executive, within 30 days thereafter, an amount equal to
the fair market value of the lot that would have had the greater fair market
value, if both development parcels had been subdivided on the date triggering
operation of this sentence.
h. Company shall reimburse Executive for reasonable and necessary
business expenses in accordance with such Company's policies and upon
presentation of appropriate documentation. Company shall reimburse Executive
for the cost of reasonable accommodations at non-Company owned facilities
during Executive's business trips to the Northstar Resort. If Company shall
require Executive to relocate, Company and Executive shall agree upon a
reasonable relocation package to be provided to Executive. It is expected that
Executive will relocate to Northstar within 18 months from the date of
execution hereof.
5. Confidentiality; Noncompetition.
a. Executive shall regard and preserve as confidential all
proprietary or confidential information of Company or any business concern
controlling, controlled by, or under common control with Company or of any East
West Entity (as such term is defined in Section 5(h) hereof) (collectively,
"Companies") that has been or may be developed or obtained by or disclosed to
Executive by reason of Executive's employment ("Confidential Information") with
any of the Companies. Executive shall not use for Executive's own benefit or
purpose, or the benefit or purpose of any person other than the Companies, or
disclose to others, either during the Employment Term or at any time
thereafter, except as required in the course of Executive's employment with any
of the Companies, any Confidential Information. Confidential Information shall
include, but not be limited to, all nonpublic information of any of the
Companies relating to its business, including all vendor or customer lists,
financial information, methods of operation, business plans, marketing plans,
strategies, or forecasts, proprietary software or other technology, and terms
of contracts. This subsection a. shall not prevent Executive from performing
her duties under the Consulting Agreement referred to in Section 5.h, so long
as both the Employment Term and such Consulting Agreement shall remain in
effect and Executive's use or disclosure of Confidential Information in
performing her duties under the Consulting Agreement shall be limited to that
reasonably required for such purpose. This Section 5.a shall not apply to
information that becomes public other than through a breach of this Agreement
by Executive; to information that Executive obtained non-confidentially before
commencement of the Employment Term; or to any disclosure that Executive shall
be required by law to make.
b. Executive covenants and agrees that (i) for so long as Executive
shall be employed by any of the Companies (the "Period of Employment") and (ii)
if the Executive's employment shall have been terminated during the Employment
Term (x) by either Company for cause, (y) by Executive in breach of this
Agreement, or (z) pursuant to clause iii., iv., or v. of Section 3.b, and, in
the case of this subclause (z), Company shall be in compliance with clause iii
of Section 3.c, then for one year after termination of such employment,
Executive shall not, directly or indirectly, as principal, partner, agent,
employee, independent contractor, stockholder, or otherwise, anywhere in the
United States or Canada, engage or attempt to engage in any ski resort business
or ski resort real estate development business or within 50 miles of Lake Tahoe
any business activity of the kind being conducted or planned to be conducted by
any of the Companies. The foregoing shall not prohibit Executive, together with
Executive's spouse and children, from owning beneficially any publicly traded
security, so long as the beneficial ownership by all of them, when combined
with the beneficial ownership of such publicly traded security of any person
(as the term is used in Section 13(d) of the Securities Exchange Act of 1934)
of which any of them is a member, shall constitute less than 5% of the class of
such publicly traded security. Notwithstanding this Section 5.b, Executive may
commence seeking other employment if neitherCompany, at least 90 days before
the end of the Employment Term, shall not have offered to Executive in writing
to continue to employ Executive for at least two years, on terms no less
favorable than those existing as of the time of such offer.
c. Executive covenants and agrees that, during the Period of
Employment, and for two years thereafter, Executive shall not, directly or
indirectly, solicit any officer or management level employee of any of the
Companies to leave such employment or to engage in any activity that Executive
would be prevented from engaging in under this Section 5.
d. Executive covenants and agrees that, during the Period of
Employment and, for any subsequent period during which Section 5.b shall be in
effect, Executive shall not, directly or indirectly, seek to persuade any
vendor, customer, or other person doing business with any of the Companies to
cease, reduce, or not increase such business.
e. Executive covenants and agrees that, during the Period of
Employment, and for one year thereafter, Executive shall not disparage any of
the Companies or any of the personnel of any of the Companies or reveal any
information that might impair the reputation or goodwill of any of them, except
that this Section 5.e shall not prohibit Executive from enforcing her rights
hereunder.
f. Executive recognizes that the foregoing limitations are reasonable
and properly required for the adequate protection of the business of the
Companies and that in the event that any territorial or time limitation is
deemed in arbitration or by a court with proper jurisdiction to be
unreasonable, Executive agrees to request, and to submit to, the reduction of
said territorial or time limitation to such an area or period as shall be
deemed reasonable by such court. If Executive shall breach any of the foregoing
covenants, then the time limitation thereof shall be extended for a period of
time during which such breach shall occur. The existence of any claim or cause
of action by Executive against any of the Companies, if any, whether predicated
upon this Agreement or otherwise, shall not constitute a defense to the
enforcement of the foregoing covenants. Executive agrees that a remedy at law
for any breach or proposed or attempted breach of any of the provisions of this
Section 5 shall be inadequate and that the Companies shall be entitled to
injunctive relief with respect to such breach or proposed or attempted breach,
in addition to any other remedy it might have.
g. Executive agrees that the provisions of this Section 5 shall inure
to the benefit of and be enforceable by any person with whom or into which
either Company shall merge or consolidate, regardless whether such Company
shall be the survivor of such transaction, or to any person acquiring all or
substantially all of either Company's assets or business.
h. Notwithstanding the foregoing provisions of Section 5, Executive
shall continue to perform consulting services, as an employee on loan from
Parent, to Morita Investments International B.V. ("MINT"), pursuant to the
Consulting Agreement dated December 15, 1999 between MINT, Executive, and
Xxxxxxxxxxx X. Xxxxx, monetary compensation under which has been assigned to
Parent. If Executive shall be employed by Parent as of the end of fiscal year
in which Parent shall receive monetary compensation pursuant to section 7 of
such Consulting Agreement, Executive shall receive a bonus for such fiscal year
equal to the percentage, of the amount that Parent shall have so received, that
is set forth below opposite the compounded annual growth rate of Parent's
Enterprise Value since October 31, 1999 through the end of such fiscal year
("CAGR").
Bonus percentage
If CAGR is shall be
---------- ----------------
<5% 5%
>5%, < 10% 10%
>10%, < 15% 17.5%
>15% 25%
Enterprise Value as of the end of a fiscal year shall mean any excess of Asset
Value over Consolidated Debt. Asset Value as of the end of a fiscal year shall
mean the sum of (i) the product obtained by multiplying EBITDA for such fiscal
year (including revenue from timber sales, but excluding sales of real estate
or other one-time revenue items) as determined from Parent's annual audited
income statement by 7.5, plus, as of the end of such fiscal year, (ii) the fair
market value of real property available for development, owned by Company or
any subsidiary, plus (iii) the fair market value of Company's interest in, and
of the interest of any Company affiliate in, the East West joint ventures
(which, for this purpose includes any transaction between Holdings or any
Holdings affiliate and East West Partners, Inc. or any affiliate thereof),
including East West Resort Development V, L.P., L.L.P. (collectively, an "East
West Entity"), and any other joint venture or transaction as to which Executive
has, at either Company's request, provided material assistance in negotiating
or overseeing. Consolidated Debt shall mean the mean of the monthly balances,
as recorded on the books of Parent or its subsidiaries in accordance with GAAP,
during such fiscal year of debt for borrowed money, including short-term debt
for money borrowed, capitalized leases, and redeemable preferred stock, but
excluding the Investor Notes or accruals thereon. Notwithstanding anything else
contained herein, Parent's Enterprise Value, as of October 31, 1999, was
$60,000,000.
i. Notwithstanding Section 6, any dispute over any accounting
determination shall be resolved conclusively by Company's regularly engaged
independent accountants, applying GAAP consistently with Company's past
practices, and, if either Company and Executive shall disagree regarding fair
market value of real property or any interest referred to in Section 5.h,
clause (iii), a conclusive determination shall be made by an appraisal firm
selected by an accounting firm selected by lot from among those of the five
largest United States accounting firms that shall have had no material
relationship with Parent, any affiliate, Executive, or any member of
Executive's family. Any determination of the fair market value of any interest
referred to in Section 5.h, clause (iii) shall be made without any minority
discount. The fees and expenses of such independent accountants or appraisal
firm shall be borne by Parent. If the disputed item shall have been previously
determined under Company's employment agreement with Xxxxxxxxxxx X. Xxxxx, and
Company shall have offered Executive the opportunity fully to participate in
the resolution thereof, such determination shall bind Company and Executive
hereunder.
6. Disputes. The parties shall promptly submit any dispute or claim
arising out of or in respect to this Agreement to binding arbitration before
one arbitrator ("Arbitrator"). The parties agree that, except as otherwise
provided in Section 5.i and Section 6.h, respecting temporary or preliminary
injunctive relief, binding arbitration shall be the sole means of resolving any
such dispute or claim. The laws of the State of Colorado shall apply to any
arbitration hereunder and shall govern this Agreement.
a. The Arbitrator shall be an active member of the bar in the state
in which the arbitration shall occur, specializing for at least fifteen years
in corporate and business law. The American Arbitration Association shall
select the Arbitrator, upon the request of either side, within 30 days of
request. The arbitration shall be held in the capital of the state in which
employee shall be or shall have been most recently employed by Company, in
accordance with the then-current provisions of the rules of the American
Arbitration Association, except as otherwise provided herein.
b. On application to the Arbitrator, any party shall have rights to
discovery to the same extent as would be provided under the Federal Rules of
Civil Procedure, and the Federal Rules of Evidence shall apply to any
Arbitration under this Agreement; provided, however, that the Arbitrator shall
limit any discovery or evidence such that his decision shall be rendered within
the period referred to in Section 6.b. The Arbitrator shall disallow any claim
of fraud, unless alleged with particularity, and shall make no award respecting
any fraud claim, unless proved by clear and convincing evidence. No party shall
seek, and neither the Arbitrator nor any court shall award, punitive or other
exemplary damages respecting any dispute under this Agreement.
c. The Arbitrator may, at his discretion and at the expense of the
parties who will bear the cost of the Arbitration, employ experts to assist him
in his determinations. The costs of the Arbitration proceeding and any
proceeding in court to confirm or to vacate any arbitration award or to obtain
temporary or preliminary injunctive relief as provided in Section 6.h, as
applicable, shall be borne by the unsuccessful party and shall be awarded as
part of the Arbitrator's decision, unless the Arbitrator shall otherwise
allocate such costs, for the reasons set forth, in such decision.
d. Any judgment upon any award rendered by the Arbitrator may be
entered in and enforced by any court of competent jurisdiction. The parties
expressly consent to the jurisdiction of the courts (Federal and state) in
Colorado to enforce any award of the Arbitrator or to render any provisional or
injunctive relief in connection with or in aid of the Arbitration. The parties
expressly consent to the personal and subject matter jurisdiction of the
Arbitrator to arbitrate any and all matters to be submitted to arbitration
hereunder. None of the parties hereto shall challenge any arbitration hereunder
on the grounds that any party necessary to such arbitration (including, without
limitation, the parties hereto) shall have been absent from such arbitration
for any reason, including, without limitation, that such party shall have been
the subject of any bankruptcy, reorganization, or insolvency proceeding.
e. This Section 6 shall not prevent either Company from seeking or
obtaining temporary or preliminary injunctive relief in a court for any breach
or threatened breach of any provision of this Agreement or any agreement
contemplated hereby; provided that the determination whether such breach or
threatened breach shall have occurred and the remedy therefor (other than with
respect to such preliminary or temporary relief) shall be made by arbitration
pursuant to this Section 6.
f. The parties shall indemnify the Arbitrator and any experts
employed by the Arbitrator and hold them harmless from and against any claim or
demand arising out of any arbitration under this Agreement or any agreement
contemplated hereby, unless resulting from the willful misconduct of the person
indemnified.
g. This arbitration clause shall survive the termination of this
Agreement. ALL PARTIES WAIVE TRIAL BY JURY WITH RESPECT TO ANY DISPUTE ARISING
UNDER THIS AGREEMENT.
7. Miscellaneous Provisions.
a. This Agreement sets forth Company's and Executive's entire
agreement with respect to the subject matter hereof, superseding all prior or
contemporaneous agreements, understandings, or discussions. This Agreement may
be amended, and any provision hereof may be waived or otherwise modified, only
by a writing signed by Company and Executive. This agreement shall be governed
by the laws of Colorado, applicable to a contract wholly negotiated, signed,
and performed in Colorado.
b. All notices given in connection with this Agreement, shall be in
writing and delivered personally or be sent by registered mail or certified
mail, postage prepaid, return receipt requested, addressed as follows:
If to either Company to:
Xxxxxxxxxxx X. Xxxxx
0000 X. Xxxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with copies to:
Xxxxxxx X. Xxxx
Loeb & Loeb LLP
000 Xxxx Xxxxxx
Xxx Xxxx XX 00000-0000
Telephone: 000-000-0000
Telecopier: 000-000-0000
and
Xxxx Xxxxxxx Life Insurance Company
000 Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Bond and Corporate Finance
Department T-57
Telecopy No.: (000) 000-0000
and
CIBC World Markets Corp.
000 Xxxxxxxxx Xxxxxx, 0xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxx Xxxxx
Telecopy No.: (000) 000-0000
and
Xxxxxx Flyer
c/o CIBC World Markets Corp.
000 Xxxxxxxxx Xxxxxx, 0xx xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopy No.: (000) 000-0000
If to Executive:
Xxxxxxxxx X. Xxxx
0000 Xxxxxxxx Xxxx, Xxxx Xxxx
Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
Xxxxx X. Xxxx, Esq.
Xxxxxxx & Xxxxxx L.L.C.
000 Xxxxxxxxxxx Xxxxxx
Xxxxxx XX 00000
Telephone: 000-000-0000
Telecopier: 000-000-0000
Either party may change the address for notice to such party by notice in
writing to the other party as provided above.
c. Company will indemnify Executive to the maximum extent permitted
by Section 145 of the Delaware Corporation Laws. The foregoing obligation will
survive termination of this Agreement. Company shall at all times carry
Directors and Officers liability insurance in at least the amounts carried as
of the date of execution of this Agreement.
d. Company shall pay the reasonable attorneys' fees and expenses
incurred by Executive respecting the negotiation and preparation of this
Agreement.
IN WITNESS WHEREOF, the undersigned have executed this Employment
Agreement on , 2000, as of the date first above written.
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BOOTH CREEK SKI HOLDINGS, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxx /s/ Xxxxxxxxx X. Xxxx
---------------------------------- ----------------------------------
Xxxxxxxxxxx X. Xxxxx, President XXXXXXXXX X. XXXX
BOOTH CREEK SKI GROUP, INC.
By: /s/ Xxxxxxxxxxx X. Xxxxx
----------------------------------
Xxxxxxxxxxx X. Xxxxx, President
LOEB&LOEB LLP
A Limited Liability Partnership
Including Professional Corporations
Exhibit A
Interoffice Memorandum
-------------------------------------------------------------------------------
Date: August 10, 2000 File: 20063810007
To: Xxxxxxxxxxx X. Xxxxx
Xxxxxxxxx X. Xxxx
From: Xxxxxxx X. Xxxx
Xxx Xxxxxxx
Xxxxx X. Xxxxxxx
Re: Booth Creek Ski Group Inc. Stock Incentive Plan
The purpose of this memorandum is to outline our understanding of the
equity grant program which Booth Creek Ski Group Inc. (the "Company") seeks to
establish (the "Plan") and to identify relevant issues, so that the program can
be structured to maximally achieve its goals and is properly documented.
Because any equity compensation program has significant financial and tax
implications, it would be prudent and, therefore, is highly recommended that
the proposal be reviewed by the Company's CPAs to assure that it achieves
maximum results from a financial and tax accounting perspective.
1. Background and Introduction: The Company already has a stock option
plan in place and a limited number of options (100) have been issued
thereunder. Consideration will be given to amending or otherwise rolling in
existing option obligations into the new equity program. The number of shares
to be reserved for issuance under the Plan will represent 15% of the total
shares of the Company's outstanding common stock, on a fully diluted basis,
including shares of common stock to be reserved for issuance under the Plan.
Under the Plan, officers and employees of the Company and its
subsidiaries will be eligible to receive awards. Moreover, while it is not
anticipated that grants will initially be made to consultants and independent
contractors, it is recommend that the Plan be flexible and allow for grants to
consultants and independent contractors. The Plan will allow for awards of
stock options, restricted stock and other types of equity grants. The initial
grants under the Plan will fall into two groups, namely, normal option grants
and special management grants.
2. Normal Option Grants: We propose that normal option grants have the
following features:
a. While both ISOs and NSOs will be authorized by the Plan, the
normal option grant will be an ISO.
b. Option term is 10 years.
c. Per share exercise price is fair market value ("FMV") of share of
common stock on date of grant. (Note that even if the Plan document allows the
Company's board of directors (the "Board"), in its sole discretion, to make a
reasonable determination of FMV, the Board should have a particular methodology
in mind for making these determinations so that it can properly administer the
Plan. While Loeb & Loeb can assist in providing guidelines for making FMV
determinations, ultimately, the Company will have to make such determinations
in consultation with their accountants. Making appropriate FMV determinations
is important because grants at less than FMV (i) cannot qualify for ISO
treatment for federal income tax purposes, and (ii) will result in a charge to
earnings for financial accounting purposes.)
d. Graded vesting over 5 years (20% annually); first vest date is
10/31/00. No accelerated vesting upon a change of control.
e. Exercise price to be paid in cash; permit net exercises [payment
of withholding?].
f. Unexercised, vested options to terminate (i) immediately, upon a
termination of employment for cause; (ii) one year following death or
disability retirement; and (iii) three months following any other termination
of employment.
g. Restrictions/Rights Applicable to Shares Issued Upon Option
Exercise:
i) Subject to Right of First Refusal by Company [Shares
transferable only with Company's consent?].
ii) Subject to Call by the Company at FMV after termination of
employment.
iii) Pro rata tag-along upon sale of control.
iv) Drag-along upon sale of Company.
v) All of these restrictions/rights lapse upon an IPO or other
event resulting in the shares of common stock becoming publicly traded.
Note:In the event of any inconsistency between this memo and the employment
contracts dated as of May 1, 2000 between the Company and Xxxxxxxxxxx Xxxxx and
Xxxxxxxxx Xxxx, respectively, the terms and provisions of said employment
contracts shall govern and control.
Exhibit B to Employment Agreement between Booth Creek Ski Group, Inc., Booth
Creek Ski Holdings, Inc. and Xxxxxxxxx X. Xxxx.
Map depicting the Northstar resort and two alternative sites for the selection
of a single family lot to be conveyed to Executive
