Exhibit 10.15
SEPARATION AGREEMENT AND RELEASE OF CLAIMS
This Separation Agreement and Release of Claims (the "Agreement") is made
as of September 1, 2003 by and between Xxxxxxx Xxxxxxx ("Employee") and Winter
Sports, Inc. ("the Company").
RECITALS
A. Employee was employed as the Chief Executive Officer of the Company
until his resignation on September 1, 2003 (the "Resignation Date").
B. The Company has offered Employee severance pay and certain other
covenants in exchange for a release of all claims under local, state or federal
law that Employee may have against the Company or its officers, directors and
affiliates as of the date of this Agreement, and Employee wishes to accept the
severance pay and other covenants on the terms set forth in this Agreement.
AGREEMENT AND RELEASE
NOW, THEREFORE, the parties agree as follows:
1. Acceptance of Resignation. The Company accepts Employee's resignation
as of the date of this Agreement, such resignation to be effective as of
September 22, 2003; provided, however, that beginning on Monday, September 1,
2003, the Employee shall be and remain on paid vacation status pursuant to the
Company's standard policies and procedures for accrued and unused vacation time.
2. Nonadmission of Liability. This Agreement is to be entered into on a
non-precedential basis and shall not be construed in any way as an admission by
the Company of any liability whatsoever against Employee or any other person,
nor shall it be construed in any way as an admission by Employee of any
liability whatsoever against the Company or any other person. Each party
specifically disclaims any liability to, or any acts of wrongdoing against, the
other party or any other persons.
3. Consideration by the Company.
a. Salary. The Company will pay Employee two years' salary (at the
Employee's current base salary rate) as severance pay and in consideration of
the other terms of this Agreement. This amount shall be paid (i) $37,333 upon
the expiration of the Revocation Period defined in Section 6; (ii) $112,000 on
January 2, 2004; and (iii) $74,667 on January 1, 2005. Each payment hereunder
shall be net of all deductions required by law or regulation applicable to
Employee or the Company.
b. Benefits. The Company will pay the premiums for dental/medical
coverage for Employee and his dependents for the 18-month COBRA period beginning
the first month following the Resignation Date; thereafter, Employee will assume
the cost of coverage available to him.
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c. Company Car - 1996 Isuzu Trooper. Employee will retain possession
of and the Company will transfer title to the 1996 Isuzu Trooper to Employee
upon the expiration of the Revocation Period.
d. Stock Purchase. Within 60 days from the effective date of this
Agreement, the Company will purchase, at the Employee's sole option, up to
22,255 shares of Employee's common stock (constituting 50% of Employee's
outstanding common stock) at $13.00 per share. The closing of such purchase
shall be on a date mutually determined by the parties not later than November 1,
2003, and at such closing the Company shall deliver to Employee the purchase
price for such sharers, and Employee shall deliver to the Company either (i) a
certificate or certificates respecting the shares so purchased, or (ii) a lost
stock affidavit respecting such certificates together with a bond of an amount
and type reasonably appropriate, in the discretion of the Company, to indemnify
and hold harmless the Company from and against any loss occasioned by a failure
to deliver such certificates. Contemporaneously herewith, the Company the
remaining 22,255 shares of Employee's common stock in the Company. The terms and
conditions of such option shall be established and governed by that certain
Option Agreement attached hereto as Exhibit A. Certain terms relating to payment
by the Company of the purchase price pursuant to the Option Agreement shall be
governed by that certain Promissory Note attached hereto as Exhibit B.
e. Ski Passes. For a period of six years, beginning in the 2003-2004
ski season, the Company will give Employee four (4) season ski passes.
3. Mutual Release.
a. By Employee. In consideration of the promises of the Company as
set forth herein, Employee does hereby, and for his heirs, representatives,
executors, administrators, successors, and assigns, release, acquit and forever
discharge the Company and all persons or entities associated therewith, and all
of their owners, stockholders, officers, directors, employees, and attorneys,
and each of them (collectively "the Released Parties"), from any and all
actions, causes of action, obligations, costs, expenses, damages, losses,
claims, liabilities, suits, debts, and demands (including attorneys' fees and
costs actually incurred), of whatever character in law or in equity known or
unknown, suspected or unsuspected, from the beginning of time to the date of
execution hereof, except as otherwise specifically excluded by the terms of this
Agreement.
This release specifically includes but is not limited to rights and claims
under any local, state or federal laws prohibiting discrimination in employment,
including claims under any local, state or federal statute for age
discrimination (such as the Age Discrimination in Employment Act), the Civil
Rights Acts of 1964, as amended, the Americans With Disabilities Act, the
Employee Retirement Income Security Act, as well as any other state or federal
laws or common law theories relating to discrimination in employment, the
termination of employment or personal injury, including all claims for
additional compensation, economic and non-economic, back pay or benefits.
Employee hereby forever covenants not to pursue against any of the Released
Parties any lawsuit or administrative claim arising out of his employment or
termination of employment by the Company that is released pursuant to this
Agreement.
Nothing in this Agreement limits Employee's right to bring a claim against
the Company for breach of this Agreement.
b. By the Company. In consideration of the promises of Employee as
set forth herein, the Company does hereby, on its own behalf and for its
successors and assigns,
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release, acquit and forever discharge Employee from any and all actions, causes
of action, obligations, costs, expenses, damages, losses, claims, liabilities,
suits, debts, and demands (including attorneys' fees and costs actually
incurred), of whatever character in law or in equity known or unknown, suspected
or unsuspected, from the beginning of time to the date of execution hereof,
except for (i) claims and liabilities which the Company is legally prohibited
from releasing Employee; (ii) for claims arising out of the gross negligence or
willful misconduct of Employee; or (iii) any conduct that could be prosecuted as
a crime under federal, state or local law.
4. Covenant Not to Compete. Employee agrees that for a period of two (2)
years from the effective date of this Agreement (the "Restricted Period"), (a)
he will not consult or work in any capacity for any for any entity whose
business materially competes with the business of the Company in Montana,
Wyoming, Idaho, Colorado or Utah (the "Restricted Area"); (b) he will not
participate in any decision (at the discussion, decision-making or
implementation stage) of any entity whose business materially competes with the
Company and whose primary location is outside the Restricted Area, if that
decision will materially and directly affect the ability of any office of such
entity that is located in the Restricted Area to compete with the Company; and
(c) he will not own an interest, individually or with others, in any business
that materially competes with the Company.
5. Covenant of Confidentiality. Employee shall keep secret and retain in
strictest confidence, and shall not, without the prior written consent of the
Company, furnish, make available or disclose to any third party or use for the
benefit of himself or any third party, any Confidential Information of the
Company. As used in this Agreement, "Confidential Information" shall mean any
information relating to the business or affairs of the Company, including but
not limited to information relating to the financial affairs of the Company;
information relating to the Company's operations, strategies and marketing
plans; information relating to the Company's former or current employees; or
other proprietary information used by the Company in connection with its
business; provided, however, that Confidential Information shall not include any
information which is in the public domain or becomes known in the industry
through no wrongful act on the part of Employee or which, in the reasonable
discretion of the Company, shall require disclosure under the Securities
Exchange Act of 1934 or the Securities Act of 1933, in each case as amended, or
under any other federal or state law which requires such disclosure.
The Company shall keep secret and retain in strictest confidence, and
shall not, without the prior written consent of Employee, furnish, make
available or disclose to any third party or use for the benefit of the Company
or any third party, any Confidential Information relating to the Employee's
tenure with the Company.
Each party further agrees that it will not disclose the financial or other
terms of this release to any third party except for Employee's immediate family,
or the attorneys, accountants, lenders or other persons advising either of them
on financial and tax matters, and then only after obtaining the protected
party's agreement to maintain the confidentiality of the information, and
neither party shall unreasonably withhold consent to such disclosure. The
prevailing party in an action to enforce, interpret or construe this covenant of
confidentiality, as well as any appeal therefrom, is entitled to reimbursement
of its attorneys' fees and costs from the non-prevailing party.
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6. Consideration and Revocation Periods. Although he is free to sign this
Agreement before then, Employee acknowledges that he was given twenty-one (21)
days after receipt of this document to consider whether to execute this
Agreement. Employee has seven (7) days after executing this Agreement to revoke
his approval and void the agreement in its entirety (the "Revocation Period").
The Agreement shall not be effective until the Revocation Period has expired.
7. No Representations/Full and Independent Knowledge. Employee
acknowledges that, except as expressly set forth herein, no representations of
any kind or character have been made to him by the Company or any of the
Company's agents, representatives or attorneys to induce the execution of this
Agreement. Employee acknowledges that the Company advised Employee to retain an
attorney, whether he chose to do so or not, to thoroughly discuss all aspects of
the Agreement (including potential tax implications), that he has carefully read
and fully understands all the provisions of the Agreement, and that he is
voluntarily entering into the Agreement.
Employee acknowledges that certain of the information furnished to it by
the Company is confidential and not public, and agrees that all such information
will be kept in confidence by him and neither used to its benefit nor disclosed
to any third party for any reason except with Issuer's prior consent.
Employee acknowledges that he is aware of the business affairs and
financial condition of the Company, that he has acquired sufficient information
about the Company to make an informed decision to sell the shares and that the
officers of the Company have answered any questions Employee has asked about the
Company and its prospects.
8. Ownership of Claims. Employee represents that he has not assigned or
transferred, or purported to assign or transfer, to any person or entity, any
claim or any portion thereof or interest therein related in any way to any
Released Party. Employee further agrees to indemnify, defend and hold harmless
each and all of the Released Parties against any and all claims based on,
arising out of or in connection with any such transfer or assignment, or
purported transfer or assignment, of any claims or any portion thereof or
interest therein.
9. Return of Company Property. Employee will return all Company property
in his possession to the Company upon the expiration of the Revocation Period.
Such property includes, but is not limited to, credit cards, keys and cell
phone.
10. Miscellaneous.
a. This Agreement shall be deemed made and entered into in the State
of Montana and shall in all respects be interpreted enforced and governed under
the laws of that state. The language of all parts of this Agreement shall in all
cases be construed as a whole, according to its fair meaning, and not strictly
for or against either party.
b. Should any provision of this Agreement be declared or determined
to be illegal or invalid, the validity of the remaining parts, terms or
provisions shall not be affected thereby and the illegal or invalid part, term
or provision shall be deemed not to be a part of this Agreement. The parties
specifically authorize any reviewing court to "blue pencil" the covenant not to
compete in Section 4 to assure it is enforced to the fullest extent possible
should any part of the covenant not to compete be found unreasonable.
c. This Agreement sets forth the entire agreement between the
parties and fully supersedes any and all prior agreements and understandings
between the parties pertaining to the
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subject matter of this Agreement, except to the extent Employee has continuing
noncompetition and confidentiality obligations under the Employment Agreement.
[Signature Page Follows]
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PLEASE READ CAREFULLY. THIS AGREEMENT INCLUDES A RELEASE OF CERTAIN KNOWN OR
UNKNOWN CLAIMS.
Xxxxxxx Xxxxxxx Winter Sports, Inc.
_____________________________________ By:_________________________________
Date: _______________________________ Name:_______________________________
Date: ______________________________
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