Exhibit 10.26
Amendment No. 1 to the Employment Agreement by and between
Booth Creek Ski Holdings, Inc. and Xxxxxxx X. Xxxx
AMENDMENT NO.1, dated January 8, 2002, to Employment Agreement
dated July 1, 1997 ("Agreement") between Booth Creek Ski Holdings,
Inc., a Delaware corporation ("Company") and Xxxxxxx X. Xxxx
("Executive"). Capitalized terms not otherwise defined herein shall
have the respective meanings given them in the Agreement.
The parties amend the Agreement as follows:
1. Paragraph 3 is deleted in its entirety and replaced with the
following:
"Unless earlier terminated as provided herein, the "Term of
Employment," as that phrase is used in this Agreement, shall be a
period commencing July 1, 1997 and ending November 1, 2003."
2. Paragraph 5 is amended to read as follows:
"5. Intentionally deleted."
3. Paragraph 4.b is amended by inserting "or 8(h)" between the
words "8(f)" and "hereof".
4. Paragraph 7 is amended to read as follows:
"7. Right to Purchase Property. Executive shall have
the right to purchase one residential parcel from Company at the
Northstar Resort at Company's basis therein as of the date hereof. The
residential parcel shall be selected by Executive, subject to approval
of Company, such approval not to be unreasonably withheld and shall be
either a 1/2 acre site in development parcel O or an approximately 2
acre site in the area known as Porcupine Hill."
5. Clauses (3) and (4) of Paragraph 8.f are deleted, the
definition of Change in Control is now set forth in paragraph 8(h) and
the period at the end of Paragraph 8.g is replaced with "; or".
6. The following is added as Paragraph 8.h:
"h. 60 days' notice from Executive given within six
months after the date that Company notifies Executive that CIBC WG
Argosy Merchant Fund 2, L.L.C., Xxxx Xxxxxxx Life Insurance Company,
and their affiliates together own beneficially Booth Creek Ski Group,
Inc., a Delaware corporation ("Parent"), capital stock (assuming any
currently exercisable rights to acquire Parent capital stock have been
exercised) 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 ("Change in Control")."
7. Paragraph 9.c is amended to read as follows:
"c. Intentionally deleted."
8. The first sentence of Paragraph 9.d is amended to read
as follows:
"If the Term of Employment is terminated by Company
pursuant to Paragraph 8.e or by Executive pursuant to Paragraph 8.f or
8.h, Company shall provide to Executive salary continuation and
continuation of health insurance coverage and disability insurance
coverage at the same levels and at the same times provided to Executive
prior to such termination for a period of eighteen (18) months."
9. Paragraphs 10.b through f are deleted and the following
substituted therefor:
"b. Executive covenants and agrees that (i) for so
long as Executive shall be employed by Company or any business concern
controlling, controlled by, or under common control with Company or
East West Partners, Inc. or any affiliate thereof, including East West
Resort Development V, L.P., L.L.L.P, (collectively, "Companies") (the
"Employment Period") and (ii) if the Executive's employment shall have
been terminated during the Term of Employment (x) by either Company for
Cause, (y) by Executive in breach of this Agreement, or (z) pursuant to
paragraphs 8. e, f, or h, and, in the case of this subclause (z),
Company shall be in compliance with paragraph 9.d, 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 or Executive from returning to or joining,
after the end of the Term of Employment, Xxx.xxxxxxxxxxx or any other
resort planning company, so long as no ski area operator has any
financial interest in such company. Notwithstanding this paragraph
10.b, Executive may commence seeking other employment if Company, at
least 90 days before the end of the Term of Employment, 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
Employment Period, 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 paragraph 10.
"d. Executive covenants and agrees that, during the
Employment Period and, for any subsequent period during which paragraph
10.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
Employment Period, 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 paragraph 10.e shall not
prohibit Executive from enforcing his 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 paragraph 10 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
paragraph 10 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 or Parent's assets or business."
10. The address for notices to Company is changed to the
following:
Xxxxxxxxxxx X. Xxxxx
0000 X. Xxxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
Xxxxxxx X. Xxxx
Loeb & Loeb LLP
000 Xxxx Xxxxxx
Xxx Xxxx XX 00000-0000
Telephone: 000-000-0000
Telecopier: 000-000-0000
Except as set forth above, the Agreement remains in full force
and effect.
IN WITNESS WHEREOF, the parties have signed this Agreement on
the date first stated above.
BOOTH CREEK SKI HOLDINGS, INC.
By: / s / Xxxxxxxxxxx X. Xxxxx / s / Xxxxxxx X. Xxxx
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Xxxxxxxxxxx X. Xxxxx, President Xxxxxxx X. Xxxx
