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EXHIBIT 10.21
AGREEMENT
This Agreement (the "Agreement") is entered into this 5th day of May, 1997
by and between Booth Creek Ski Holdings, Inc., a Delaware corporation
("Company"), and Xxx Xxxxxxx ("Executive"), an individual residing at Seattle,
Washington.
WHEREAS, Company desires to employ Executive in accordance with the terms
and conditions hereinafter set forth and Executive desires to be so
employed;
NOW, THEREFORE, in consideration of the mutual covenants herein contained,
Company and Executive agree as follows:
1. EMPLOYMENT. Company hereby employs Executive as a member of the
Office of the President with the title of Executive Vice President. In this
position, Executive shall report directly to Company's Chief Executive Officer.
2. DUTIES. During the Term of Employment (as hereinafter defined),
Executive's duties shall be consistent with his position as Executive Vice
President, along with such other duties consistent therewith as may be assigned
to Executive from time to time by Company. Executive and Company acknowledge
that a Related Entity, rather than Company, may be the entity that acquires a
destination resort and, in such event, Executive will perform duties on behalf
of such entity in addition to Company. Executive shall devote his entire
productive time, abilities and attention to these activities, shall perform his
duties in a professional, ethical and businesslike manner, and shall comply
with all policies and procedures of Company.
3. TERM OF EMPLOYMENT. Unless earlier terminated as provided herein, the
"Term of Employment," as that phrase is used in this Agreement, shall be a
period commencing May 5, 1997 and ending April 30, 2002.
4. COMPENSATION AND BENEFITS. During the Term of Employment, Company
shall provide to Executive and Executive shall accept from Company as full
compensation for Executive's services hereunder, compensation and benefits as
follows:
a. BASE SALARY. Executive shall be paid at an annual base salary
rate of One Hundred Seventy Five Thousand Dollars ($175,000) ("Base Salary").
The Base Salary shall be provided in accordance with payroll practices in
effect for all salaried executives of Company.
b. ANNUAL BONUS(ES). Executive shall be eligible to receive annual
bonus(es) as determined in the discretion of the Company. For the period
beginning on the date of this Agreement and ending on October 31, 1997,
however, Executive will be entitled to a minimum bonus equal to 35% of
Executive's Base Salary (prorated for the partial fiscal year) or such larger
amount as Company may determine. Prior to the beginning of each fiscal year
thereafter, Executive and Company will establish a set of financial, business,
and personal goals, with a target bonus of 50% of Executive's Base Salary if
such goals are satisfied (and a lesser bonus to the extent such goals are not
satisfied but are approximated). The bonus for any fiscal year will be payable
not later than sixty (60) days after the end of Company's fiscal year.
Executive will be entitled to the full
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bonus if Executive was employed through the end of the fiscal year as to which
the bonus is payable, and if Executive's employment during a fiscal year is
terminated pursuant to Paragraph 9(a), 9(b), 9(e) or 9(f) hereof (but not if
the Term of Employment is terminated under any other circumstances), Executive
shall be entitled to a prorated bonus for such fiscal year (through the last
day of Executive's employment).
c. INCREASE IN DUTIES. In the event Company or any Related Entity
acquires a destination resort and, as a result of such acquisition,
Executive's duties are materially increased, Executive's Base Salary may
be increased as the parties may agree.
d. BENEFIT PLANS. Executive shall be eligible to participate in the
health, disability and retirement plans offered generally to executives of
Company or any Related Entity engaged in operating a ski resort, in accordance
with the terms of those plans and with participation levels and benefits to
Executive that are not less favorable than those that are provided to such
other executives.
e. LIFE INSURANCE. Provided Executive is insurable at a reasonable
rate, Company shall provide to Executive a term life insurance policy in the
amount of one million dollars ($1,000,000), with at least a five year
renewable term. Upon the end of the Employment Term, Executive may acquire the
policy from Company by payment of the unamortized portion of the premium for
the then current policy year.
f. BUSINESS EXPENSES. Company shall reimburse Executive for
reasonable and necessary business expenses, in accordance with Company's
policies and upon presentation of appropriate documentation.
5. BONUS PAYMENT IN THE EVENT OF AN IPO. In the event Company conducts
an initial public offering, it shall thereafter establish, fund and distribute
a bonus pool of $1,000,000 for its management executives, which shall include
senior management level personnel at the Company and its subsidiaries.
Provided he is employed at the time such bonus pool is established, Executive
shall be entitled to a bonus out of such bonus pool, the amount of which shall
be determined by Company in its discretion.
6. LOCATION OF WORK. Executive shall perform services at the various
properties owned by the Company and will be expected to reside in the general
area of the community in which the Company's executive offices are located. It
is anticipated that the present executive offices in Vail, Colorado will
not be the permanent executive offices of Company and that Executive will not
be required to relocate his residence until permanent executive offices are
established. When such offices are established, Executive, at the request of
Company, will be required to relocate his residence to the general area of such
executive offices, but in no event prior to the end of six months from the date
on which such permanent executive offices are established.
7. MOVING EXPENSES/LIVING EXPENSES. In the event Executive is required
(subject to Paragraph 6 hereof) to move to a location other than Seattle,
Washington, Company shall reimburse
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Executive for reasonable moving expenses associated with moving his possessions
and immediate family (equal to the lower of two bids obtained by Executive) and
shall reimburse Executive for any real estate brokerage fee and/or mortgage
points (up to 2%) incurred by Executive in connection with a related
residential purchase.
In the event Executive is required to spend a substantial amount of his
working time at the Company's executive offices before he is required to
relocate, Company shall reimburse Executive for the reasonable cost of travel
between Seattle, Washington and such offices and of temporary housing in the
community in which such executive offices are located until such time as
Executive is required to relocate his residence as provided under Paragraph 6.
Such housing for Executive shall either be provided by or approved by the
Company, at the Company's option.
8. RIGHT TO PURCHASE PROPERTY. In the event Executive is required to
relocate his residence as set forth in Paragraph 6, Executive shall have the
right to purchase one residential parcel in the community where such offices
are located (if the Company owns residential development land in such
community) at Company's cost, or if such cost is not readily ascertainable, at
a discounted price agreed to by Company and Executive. The residential parcel
will be selected by Executive, subject to the approval of Company, such
approval not to be unreasonably withheld.
9. TERMINATION. The Term of Employment shall terminate upon:
a. Executive's death;
b. Termination owing to Executive's disability or incapacity, due to
physical or mental illness that materially detracts from Executive's ability to
perform his duties hereunder for a period in excess of ninety (90) consecutive
days;
c. Termination by Company for "Cause." For purposes of this
Agreement, "Cause" means: (i) failure by Executive (other than by reasons of
Executive's disability or incapacity as set forth in Paragraph 9(b) hereof) to
substantially perform his duties in any material respect, after notice and a
reasonable opportunity to cure is provided to Executive; (ii) commission by
Executive of a felony; or (iii) fraud, misappropriation or embezzlement
involving property of Company or other intentional wrongful acts that
materially impair the goodwill or business of Company or that cause material
damage to its property, goodwill or business;
d. Written agreement of Company and Executive;
e. Termination by Company without Cause.
f. Termination by Executive for "Good Reason." Good Reason means (1)
Company breaches its obligations hereunder in any material respect and fails to
cure such breach within 30 days after written notice of such breach from
Executive; (2) Company effects a material reduction in Executive's reporting
responsibilities, titles, authority, offices or duties as in effect immediately
prior to such change and fails to cure such reduction within 30 days after
written notice
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of such reduction from Executive; (3) Xxxxxx X. Xxxxxxx, Xx. ceases to be Chief
Executive Officer of Company and Booth Creek Ski Holdings, Inc.; or (4) Xxxxxx
X. Xxxxxxx, Xx. and members of his immediate family cease to own sufficient
shares of stock of Booth Creek Ski Group, Inc. to be able to elect a majority
of the Board of Directors of Booth Creek Ski Group, Inc.
10. COMPENSATION UPON TERMINATION.
a. If the Term of Employment is terminated pursuant to Paragraph
9(a), 9(b) or 9(c) hereof or by Executive for any reason other than for a
reason set forth in Paragraph 9(f) hereof, Executive shall not be entitled to
receive any compensation or benefits after the date of such termination except
for disability insurance in the case of a termination under Paragraph 9(b).
b. If the Term of Employment is terminated by the parties pursuant
to Paragraph 9(d) hereof, Executive shall be entitled to receive such
compensation as may be specified in a written agreement, if any, between
Company and Executive regarding Executive's termination.
c. If the Term of Employment is terminated by Company pursuant to
Paragraph 9(e) or by Executive pursuant to Paragraph 9(f), Company shall
provide to Executive salary continuation and continuation of health
insurance coverage and disability insurance coverage at the same level
provided to Executive prior to such termination for a period of eighteen months
or until Executive is eligible for comparable benefits from another entity,
whichever date is earlier. Such salary continuation shall be provided at
Executive's Base Salary rate then in effect and shall be subject to required
withholdings.
11. RESTRICTIVE COVENANTS.
a. Confidential Information. Executive acknowledges that he has had
and will have access to confidential information (including, but not limited
to, current and prospective confidential know-how, inventions, trade secrets,
customer lists, marketing plans, business plans, information regarding
acquisitions, mergers and/or joint ventures) concerning the business,
customers, products, plans, finances, suppliers, and assets of Company and its
parents, subsidiaries, affiliates and other related entities (collectively, the
"Related Entities") that is not generally known outside Company and/or the
Related Entities ("Confidential Information"). Executive agrees that he shall
not, at any time, directly or indirectly use, divulge, furnish or make
accessible to any person any Confidential Information, but instead shall keep
all Confidential Information strictly and absolutely confidential. Executive
agrees to deliver promptly to Company, at the termination of his employment or
at any other time at Company's request, without retaining any copies, all
documents and other materials in his possession relating, directly or
indirectly, to any Confidential Information.
Notwithstanding the foregoing provisions, information will not be
considered Confidential Information if it (a) becomes a part of the public
domain without a breach by Executive of his duty of confidentiality; (b) was
made known to Executive by a source other than the Company prior to
commencement of his employment with Company; (c) is required to be disclosed by
any court, arbitrator or government authority, or by law (subject to
Executive's obligation to notify
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Company if he becomes obligated to disclose any such information so as to
provide Company with the opportunity, to the extent feasible, to contest such
disclosure); or (d) is disclosed in connection with any legal proceeding
regarding a breach or an alleged breach of the terms of this Agreement by
either party.
b. Non-Competition. Executive agrees that during the Term of
Employment and for a period of one year thereafter (the "Period"), he shall
not, without the prior written consent of the Company's Board of Directors
("Board"), participate or engage in, directly or indirectly (as an owner,
partner, executive officer, director, independent contractor, consultant,
advisor or in any other capacity calling for the rendition of services, advice,
or acts of management, operation or control), any business that, during the
Period (x) is engaged in the business of operating a ski resort in the
United States, or (y) is engaged in any material respect in the real estate
development business within a 45-mile radius of any ski resort owned by Company
or a Related Entity at the end of the Employment Term.
c. Non-Solicitation of Executives. Executive agrees that, during
the Period, he shall not, without the prior written consent of the Board,
directly or indirectly solicit any current Executive of Company or any of the
Related Entities or any individual who becomes an Executive during the Period
to leave such employment and join or become affiliated with any other business.
d. No Diversion of Business Opportunities and Prospects. During the
Period, Executive shall not, without the written consent of the Board, directly
or indirectly seek to dissuade from continuing to do business with or entering
into business with Company or any of the Related Entities, any supplier,
customer, or other person or entity that had a business relationship with or
with which Company was actively planning or pursuing a business relationship at
or before the date of termination of her employment, or to reduce the amount of
such business between Company or any of the Related Entities and any such
entity.
e. Irreparable Harm. Executive acknowledges that: (i) Executive's
compliance with this Agreement is necessary to preserve and protect the
proprietary rights, Confidential Information and the goodwill of Company and
the Related Entities as going concerns; (ii) any failure by Executive to
comply with the provisions of this Agreement will result in irreparable and
continuing injury for which there will be no adequate remedy at law; and
(iii) in the event that Executive should fail to comply with the terms and
conditions of this Agreement, Company shall be entitled, in addition to such
other relief as may be proper, to all types of equitable relief (including, but
not limited to, the issuance of an injunction and/or temporary restraining
order) as may be necessary to cause Executive to comply with this Agreement, to
restore to Company its property, and to make Company whole.
f. The provisions set forth in this Paragraph 11 shall, as noted,
survive termination of this Agreement.
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12. MISCELLANEOUS PROVISIONS.
a. No modification, amendment or waiver of this Agreement nor
consent to any departure by Executive from any of the terms or conditions
thereof, shall be effective unless in writing and signed by Executive and
any officer of the Company authorized by the Board to do so. Any such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given. This Agreement sets forth the entire agreement and
understanding between Company and Executive and supersedes all prior agreements
and understandings, written or oral, relating to the subject matter hereof.
b. This Agreement shall be binding upon and enforceable by Executive
and shall inure to the benefit of Executive's executors, administrators, heirs,
successors, devisees and legal representatives and Company and any successor
or assignee of Company, but neither this Agreement nor any rights or payments
arising hereunder may be assigned, pledged, transferred (except upon death) or
hypothecated by Executive.
c. All notices required to be given under the terms of the
Agreement, or that either of the parties desires to give hereunder, 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 Company:
Xxxxxx X. Xxxxxxx, Xx.
0000 Xxxxxxx Xxxxx
Xxxxxx Xxxxxxx, Xxxxxxx 00000
With Copies to:
Booth Creek, Inc.
0000 X. Xxxxxxxx Xxxx Xxxx
Xxxxx 000
Xxxx, Xxxxxxxx 00000
(000) 000-0000
(000) 000-0000 (fax)
Xxx X. Xxxxxxxx
XXXXXXX & XXXXXX
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
(000) 000-0000
(000) 000-0000 (fax)
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If to Executive:
Xxx Xxxxxxx
00000 Xxxxxxxxx Xxx., X.X.
Xxxxxxx, XX 00000
Any party may change the address to which notice is to be sent to it or to him
by notice in writing to the other party as provided above.
d. This Agreement shall be subject to and governed by the laws of
the State of Delaware.
e. If any provisions(s) of this Agreement shall be found invalid or
unenforceable, in whole or in part, then such provision(s) shall be deemed to
be modified or restricted to the extent and in the manner necessary to render
the same valid and enforceable, or shall be deemed excised from this Agreement,
as the case may require, and this Agreement shall be construed and enforced to
the maximum extent permitted by law, as if such provision(s) had been
originally incorporated herein as so modified or restricted, or as if such
provision(s) had not been originally incorporated herein, as the case may be.
f. This Agreement may be executed in multiple counterparts, each of
which shall be deemed an original.
g. 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.
[signature page follows]
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IN WITNESS WHEREOF, the undersigned have executed this Employment
Agreement as of the date first above written.
BOOTH CREEK SKI HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxx, Xx. /s/ Xxx Xxxxxxx
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Its: Chairman
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Dated: June 6, 1997 Date: June 3, 1997
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