EMPLOYMENT AGREEMENT
Exhibit
10.30
EMPLOYMENT
AGREEMENT dated as of May 17, 1999 by and between VAIL ASSOCIATES INC., a
Colorado corporation (“VA”) and Xxxx McD. Xxxxxxx (hereinafter referred to as
“Executive”).
RECITALS
1. VA
desires to employ Executive to render services to it for the period and upon the
terms and conditions provided for in this Agreement; and
2. Executive
wishes to serve in the employ of VA for its benefit for the period and upon the
terms and conditions provided for in this Agreement.
COVENANTS
NOW,
THEREFORE, the parties hereto agree as follows:
1. Employment.
(a) VA hereby
employs Executive to serve as Senior Vice President & Chief Operating
Officer - Beaver Creek on the terms and conditions set forth
herein. In such capacity, Executive
shall have the responsibilities normally associated with such position,
including those generally described on Exhibit A attached hereto, subject to the
supervision and control of the President (the "President"), the Board of
Directors (the "Board") and chief executive officer (the "CEO") of Vail Resorts,
Inc., a Delaware corporation, the sole indirect shareholder of VA.
(b) Executive
accepts employment by VA and agrees that, during the term of his employment, he
will devote substantially all his time during normal business hours and best
efforts to the performance of his duties hereunder, which duties shall be
performed in an efficient and competent manner and to the best of his
ability. Executive further agrees that, during the term of this
Agreement, he will not, without the prior written consent of the President,
directly or indirectly engage in any manner in any business or other endeavor,
either as an owner, employee, officer, director, independent contractor, agent,
partner, advisor, or in any other capacity calling for the rendition of his
personal services. This restriction will not preclude Executive from
having passive investments, and devoting reasonable time to the supervision
thereof (so long as such does not create a conflict of interest or interfere
with Executive's obligations hereunder), in any business or enterprise which is
not in competition with any business or enterprise of VA or any of its
subsidiaries or affiliates (collectively, the "Companies"). Notwithstanding the
foregoing, Executive shall be entitled to retain interests and/or positions with
the business(s)/enterprise(s) listed on Exhibit B, attached hereto, which
interests/positions shall not be deemed competitive with the
Companies.
2. Compensation.
For all
services rendered by Executive to or on behalf of the Companies, VA shall
provide to Executive, subject to any and all withholdings and deductions
required by law, the following:
(a) Base Salary. Executive shall receive regular compensation at the initial rate of Two Hundred Twenty-Five Thousand Dollars ($225,000.00) per year (the "Base Salary"), which Base Salary shall be adjusted effective October 1, 1999 to Two. Hundred Thirty-Five Thousand Dollars ($235,000.00), payable in accordance with the normal payroll practices of VA. Executive's Base Salary shall be reviewed annually by the President, the CEO and the Board; Executive's initial review shall occur on or before September 30, 2000. Any increases or decreases in such Base Salary shall be at the discretion of the President, the CEO and the Board, and Executive acknowledges that the President, the CEO and the Board are not obligated to make any increases. Executive’s Base Salary shall not be lowered from the initial Base Salary set forth above during the term of this Agreement without his written consent.
(b) Bonuses, Stock Options.
Etc. Executive shall also be considered annually for bonuses,
and/or stock options based upon his performance in light of objectives
established by the Board, it being understood that any such awards are at the
discretion of the President, the CEO and the Board. Without limiting
the generality of the foregoing, Executive shall be eligible to participate in
(i) the Management Incentive Plan of VA (the "MIP"), and (ii) any other bonus,
incentive, and fringe benefit plans as VA shall make generally available to
other employees in senior management positions in accordance with the terms of
the relevant contracts, policies or plans providing such benefits, all on such
terms as the Board may determine. If any such compensation or
benefits are paid or made available, it shall be at such time or times as the
Board shall determine, based upon such factors, if any, as the Board may
establish. Notwithstanding the above, (w) there shall be no bonus
compensation paid to Executive for fiscal year 1999, (x) Executive's bonus for
fiscal year 2000 shall be guaranteed for Seventy Thousand Dollars ($70,000.00),
(y) Executive shall be granted the option to buy up to 42,000 shares of common
stock Tranche A through the Vail Resorts, Inc. 1996 Long Term Incentive and
Share Award Plan ("1996 Plan") upon terms as specifically set forth in the Vail
Resorts, Inc.'s standard stock option agreement, which terms shall include
vesting over three years (with the first anniversary being May 17, 2000) and an
exercise price equal to the closing market price on May 17, 1999, (z) Executive
shall be eligible to participate in annual option grant(s) made by the Board
under the 1996 Plan for 2000 (a number of shares of common stock Tranche B, if
any, granted by the Board in its discretion on or before November 18, 2000, at
an exercise price equal to the closing market price on the day of the grant, if
made by the Board, all subject to the terms of the applicable stock option
agreement).
(c) Insurance. Executive
shall also receive, at VA’s expense, health, medical, dental, long-term
disability and life insurance pursuant to such plans as are from time to time
adopted by the Board.
(d)
Expense Reimbursement;
Club Memberships. Executive shall have a travel and
entertainment budget which is reasonable in light of his position and
responsibilities and shall be reimbursed for all reasonable business-related
travel and entertainment expenses incurred by him thereunder upon submission of
appropriate documentation thereof. Executive shall, subject to
applicable rules and bylaws in effect from time to time, be entitled to the
benefits of a family membership at the Beaver Creek Club (which includes golf at
the Beaver Creek Golf Course and access to Beano's Cabin and the Hyatt Spa);
provided however, that Executive shall not actually be a member of such club and
in no event shall Executive be entitled to any claim of reimbursement of any
initiation or similar fee. Executive shall be solely responsible for
the payment of any and all charges incurred at such facilities, excluding only
the payment of any regular dues which Executive shall not be obligated to
pay. In addition, Executive shall, subject to applicable rules and
bylaws in effect from time to time, be entitled to the benefits of membership at
either The Country Club of the Rockies or The Club at Cordillera, whichever
Executive elects (subject to availability); provided however, that Executive
shall not actually be a member of such club and in no event shall Executive be
entitled to any claim of reimbursement of any initiation or similar
fee. Further, Executive shall be solely responsible for the payment
of any and all charges incurred at such club, and the payment of one-half of any
of the regular dues associated with such club, and the VA shall pay the
remaining one-half of any of the regular dues associated with club.
3. Term and
Termination.
(a) Term and
Renewal. The "Effective Date" of this Agreement shall be May
17, 1999. Unless terminated earlier, as hereinafter provided, the
term of this Agreement shall be for the period commencing with the Effective
Date and continuing through September 30, 2002; provided, however, that unless
either VA or Executive gives written notice of non-renewal to the other not less
than 120 days prior to the then-current scheduled expiration date, this
Agreement shall thereafter be automatically renewed for successive one-year
periods.
(b) Termination for
Cause. VA, acting through the President, may terminate this
Agreement at any time for cause by giving Executive written notice specifying
the effective date of such termination and the circumstances constituting such
cause. For purposes of this Agreement, "cause" shall mean (i) any
conduct involving dishonesty, gross negligence, gross mismanagement, the
unauthorized disclosure of confidential information or trade secrets or a
violation of VA's code of conduct which has a material detrimental impact on the
reputation, goodwill or business position of any of the Companies; (ii) gross
obstruction of business operations or illegal or disreputable conduct by
Executive which materially impairs the reputation, goodwill or business position
of any of the Companies, including acts of unlawful sexual harassment; or (iii)
any action involving a material breach of the terms of the Agreement including,
without limitation after 15 days' written notice and opportunity to cure to the
Board's satisfaction, material inattention to or material neglect of
duties. In the event of a termination for cause, Executive shall be
entitled to receive only his then-current Base Salary through the date of such
termination and any fully vested stock options or shares and other applicable
benefits generally available to terminated executives at VA (not to be deemed to
include severance payments or salary continuation). Further,
Executive acknowledges that in the event of such a termination for cause, he
shall not be entitled to receive any MIP or other bonus for the year of
termination.
(c) Termination Without Cause or
Non-Renewal. VA may terminate this Agreement at any time
without cause, by giving Executive written notice specifying the effective date
of such termination. In the event of a termination without cause, or
if VA gives notice of non-renewal of this Agreement as provided in Section 3 (a)
, and provided that Executive executes a written release in connection with such
termination substantially in the form attached hereto as Annex I (the
"Release"), Executive shall be entitled to receive (i) his then-current Base
Salary through the date of such termination or non-renewal, (ii) in the event
that the applicable Board-established performance targets for the year are
achieved, a pro-rated bonus for the portion of the year in which such
termination or non-renewal occurs (except that the Executive's guaranteed bonus
of $70,000 for fiscal year 2000 shall be pro-rated based on a 14 and 1/2 month
basis [i.e., from the Effective Date through the end of fiscal year 2000]),
which pro-rated bonus shall be payable in the same form and at the same time as
bonus payments are made to VA's senior executives generally, (iii) continuation
of his then-current Base Salary through the first anniversary of the date of
termination or non-renewal, and (iv) any fully vested stock options or
shares. Notwithstanding the foregoing, should VA and Executive
mutually agree to waive, in writing, Executive's compliance with the provisions
of Section 4 hereof within 60 days of such termination or expiration, then
Executive shall be under an obligation to mitigate damages by seeking other
employment and the Base Salary continuation shall be reduced by compensation
received by Executive from other employment or self-employment following such
waiver.
(d) Termination By Executive For
Good Reason. Executive shall be entitled to terminate this
Agreement at any time for good reason by giving VA not less than ninety (90)
days prior written notice. For purposes of this Agreement, "good
reason" shall mean (i) VA shall breach its obligations hereunder in any material
respect and shall fail to cure such breach within 60 days following written
notice thereof from Executive, (ii) VA shall decrease Executive's then current
Base Salary and/or (iii) VA shall effect a material diminution in Executive's
reporting responsibilities, titles, authority, offices or duties as in effect
immediately prior to such change. In such event, provided that
Executive has executed the Release, Executive shall be entitled to receive (w)
his then-current Base Salary through the date of such termination, (x) in the
event that the applicable Board-established performance targets for the year are
achieved, a pro-rated bonus for the portion of the year in which such
termination occurs, which pro-rated bonus shall be payable in the same form and
at the same time as bonus payments are made to VA's senior executives generally,
(y) continuation of his then-current Base Salary through the first anniversary
of the date of such termination, and (z) any fully vested stock options or
shares.
(e) Termination By Executive
Without Good Reason. Executive may also terminate this
Agreement at any time without good reason by giving VA at least one hundred
twenty (120) days prior written notice. In such event, provided that
Executive has executed the Release, Executive shall be entitled to receive only
his then-current Base Salary through the date of termination and any fully
vested stock options or shares and other applicable benefits generally available
to terminated executives at VA (not to be deemed to include severance payments
or salary continuation). Further, Executive acknowledges that in the
event of such a termination without good reason, he shall not be entitled to
receive any MIP or other bonus for the year of termination.
(f) Termination Due to
Disability. In the event that Executive becomes permanently
disabled (as determined by the President and the Board in good faith according
to applicable law), VA shall have the right to terminate this Agreement upon
written notice to Executive; provided, however, that in the event that Executive
executes the Release, Executive shall be entitled to receive (i) his
then-current Base Salary through the date of such termination, (ii) in the event
the applicable Board-established performance targets for the year are achieved,
a pro-rated bonus for the portion of the year in which such termination occurs,
which pro-rated bonus shall be payable in the same form and at the same time as
bonus payments are made to VA's senior executives generally, and (iii)
continuation of his then-current Base Salary through the earlier of (x) the
scheduled expiration date of this Agreement (but in no event less than 12 months
from the date of disability) or (y) the date on which his long-term disability
insurance payments commence. Further, Executive shall be entitled to
retain all fully vested stock options and shares.
(g) Termination Due to
Death. This Agreement shall be deemed automatically terminated
upon the death of Executive. In such event, provided Executive's
personal representative executes a release substantially in the form or the
Release, Executive's personal representative shall be entitled to receive (i)
the Executive's then-current Base Salary through such date of termination, and
(ii) in the event that the applicable Board-established performance targets for
the year are achieved, a pro-rated bonus for the portion of the year in which
such termination occurs, which pro-rated bonus shall be payable in the same form
and at the same time as bonus payments are made to senior executives
generally. Further, Executive's personal representative shall be
entitled to retain any stock options pursuant to the terms of the applicable
stock option agreement.
(h) Other
Benefits. During any period in which Executive is entitled to
Base Salary continuation following termination or expiration of this Agreement
under the terms of this Section 3, Executive shall also be entitled to
continuation of then-current health, dental and other insurance benefits for
Executive and his dependents at VA's expense. Except as expressly set
forth in this Section 3, Executive shall not be entitled to receive any
compensation or other benefits in connection with termination of his
employment. Notwithstanding the foregoing, all deferred compensation
shall be forfeited by Executive in the event of termination of employment
pursuant to Section 3(b) or Section 3(e) of this Agreement.
(i) Payment of Salary
Continuation. Payment of Base Salary following termination of
this Agreement as required by this Section 3 shall be made in accordance with
VA's normal payroll practices; provided, however, that in the event of a breach
by Executive of the provisions of Sections 4, 5, 6 or 7 hereof, VA shall be
entitled to cease all such payments. No termination of this Agreement
shall affect any of the rights and obligations of the parties hereto under
Sections 4, 5, 6 and 7, but such rights and obligations shall survive such
termination in accordance with the terms of such sections.
4. Non-Competition.
The
provisions of this Section 4 shall apply for a period of one (1) year beginning
with the date of termination of Executive's employment with VA for any
reason. During such period, Executive will not, without the prior
written consent of the President, directly or indirectly, become associated,
either as owner, employee, officer, director, independent contractor, agent,
partner, advisor or in any other capacity calling for the rendition of personal
services, with any individual, partnership, corporation, or other organization
in the states of Colorado, Nevada, Idaho, California or Utah whose business or
enterprise is alpine or nordic ski area operation; provided, however, that the
foregoing shall not preclude Executive from having passive investments in less
than five percent (5 %) of the outstanding capital stock of a competitive
corporation which is listed on a national securities exchange or regularly
traded in the over-the-counter market or which have been approved in writing by
the President. If, for any reason, any portion of this covenant shall
be held to be unenforceable it shall be deemed to be reformed so that it is
enforceable to the maximum extent permitted by law.
Further,
Executive covenants and agrees that, during his employment by VA and for the
period of one year thereafter, Executive will not solicit for another business
or enterprise any person who is a managerial or higher level employee of Vail
Resorts, Inc. or any of its subsidiaries at the time of Executive's
termination.
5. Document Return;
Resignations.
Upon
termination of Executive's employment with VA for any reason, Executive agrees
that he shall promptly surrender to VA all letters, papers, documents,
instruments, records, books, products, and any other materials owned by any of
the Companies or used by Executive in the performance of his duties under this
Agreement. Additionally, upon termination of Executive's employment
with VA for any reason, Executive agrees to immediately resign from, and execute
appropriate resignation letters relating to, all officer, director, management
or board positions he may have by reason of his employment or involvement with
VA, specifically including but not limited to the Board, the boards of any of
the Companies and any other boards, districts, homeowner and/or industry
associations in which Executive serves at the direction of VA, including but not
limited to the Beaver Creek Resort Company, the Beaver Creek Governing Board,
and the Xxxxx Creek Metro District (collectively the
"Associations").
6. Confidentiality.
During
the term of this Agreement, and at all times following the termination of
Executive's employment with VA for any reason, Executive shall not disclose,
directly or indirectly, to any person, firm or entity, or any officer, director,
stockholder, partner, associate, employee, agent or representative thereof, any
confidential information or trade secrets of any of the Companies or the
Associations.
7. Non-Disparagement.
For a
period of five (5) years following the termination of Executive's employment
with VA for any reason, Executive agrees that he shall not make any statements
disparaging of any of the Companies, the Board, and the officers, directors,
stockholders, or employees of any of the Companies or the
Associations. VA shall similarly not disparage Executive following
such termination, it being understood that, subject to the terms of this Section
7, VA and Executive, as appropriate, may respond truthfully to inquiries from
prospective employers of Executive, or as may be required by any governmental or
judicial body acting in their official capacity.
8. Injunctive
Relief.
The
parties acknowledge that the remedy at law for any violation or threatened
violation of Sections 4, 5, 6, 7 and/or 9 of this Agreement may be inadequate
and that, accordingly, either party shall be entitled to injunctive relief in
the event of such a violation or threatened violation without being required to
post bond or other surety. The above stated remedies shall be in
addition to, and not in limitation of, any other rights or remedies to which
either party is or may be entitled at law, in equity, or under this
Agreement.
9. Non-Assignability.
It is
understood that this Agreement has been entered into personally by the
parties. Neither party shall have the right to assign, transfer,
encumber or dispose of any duties, rights or payments due hereunder, which
duties, rights and payments with respect hereto are expressly declared to be
non-assignable and non-transferable, being based upon the personal services of
Executive, and any attempted assignment or transfer shall be null and void and
without binding effect on either party; provided, however, that VA may assign
this Agreement to any affiliate or successor corporation.
10. Complete
Agreement.
This
Agreement constitutes the full understanding and entire employment agreement of
the parties, and supersedes and is in lieu of any and all other understandings
or agreements between VA and Executive. Nothing herein is intended to
limit any rights or duties Executive has under the terms of any applicable stock
option, incentive or other similar agreements.
11. Arbitration.
Other
than the parties right to seek injunctive relief in accordance with Section 8 of
this Agreement, any controversy or claim arising out of or in relation to this
Agreement, or any breach thereof shall be resolved by final and binding
arbitration, in accordance with the rules for contractual disputes, by the
Judicial Arbiter Group ("JAG"), Denver, Colorado, and judgment on the award
rendered may be entered in any court having jurisdiction. In the
event that any controversy or claim is submitted for arbitration hereunder
relating to the failure or refusal by VA or Executive to perform in full all of
its obligations hereunder, VA or Executive, as applicable, shall have the burden
of proof (as to both production of evidence and persuasion) with respect to the
justification for such failure or refusal. The arbitrator(s) shall
award the prevailing party its reasonable attorneys' fees and
costs. The arbitrator(s) shall not have the power to direct equitable
relief.
12. Amendments.
Any
amendment to this Agreement shall be made only in writing and signed by each of
the parties hereto.
13. Governing
Law.
The
internal laws of the State of Colorado law shall govern the construction and
enforcement of this Agreement.
14. Notices.
Any
notice required or authorized hereunder shall be deemed delivered with
deposited, postage prepaid, in the United States mail, certified, with return
receipt requested, addressed to the parties as follows:
Mr. John
McD. Xxxxxxx
X.X. Xxx
0000
Xxxxx,
Xxxxxxxx 00000
Vail
Associates, Inc.
X.X. Xxx
0
Xxxx,
Xxxxxxxx 00000
Attn: President
CC: General
Counsel
IN WITNESS WHEREOF, the parties hereto
have executed this Agreement as of the day of first written above.
EMPLOYER:
VAIL
ASSOCIATES, INC.
By: Xxxxxx X.
Xxxx
Its: President
EXECUTIVE:
/s/ Xxxx McD.
Xxxxxxx
Xxxx McD.
Xxxxxxx
MUTUAL
RELEASE
This
mutual release (this “Release”) is entered into as of this _____ day of
__________. _____ (the “Release Date”) by Xxxx McD. Xxxxxxx (“Employee”), on the
one hand and Vail Associates, Inc., (“VA”) on the other hand.
1. Reference
is hereby made to the employment agreement dated May 17, 1999 (the "Employment
Agreement") by the parties hereto setting forth the agreements among the parties
regarding the termination of the employment relationship between Employee and
VA. Capitalized terms used but not defined herein have the meanings
ascribed to them in the Employment Agreement.
2. Employee,
for himself, his wife, heirs, executors, administrators, successors, and
assigns, hereby releases and discharges VA and its respective direct and
indirect parents and subsidiaries, and other affiliated companies, and each of
their respective past and present officers, directors, agents and employees,
from any and all actions, causes of action, claims, demands, grievances, and
complaints, known and unknown, which Employee or his wife, heirs, executors,
administrators, successors, or assigns ever had or may have at any time through
the Release Date. Employee acknowledges and agrees that this Release
is intended to and does cover, but is not limited to, (i) any claim of
employment discrimination of any kind whether based on a federal, state, or
local statute or court decision, including the Age Discrimination in Employment
Act with appropriate notice and rescission periods observed; (ii) any claim,
whether statutory, common law, or otherwise, arising out of the terms or
conditions of Employee's employment at VA and/or Employee's separation from VA
including, but not limited to, any claims in the nature of tort or contract
claims, wrongful discharge, promissory estoppel, intentional or negligent
infliction of emotional distress, and/or breach of covenant of good faith and
fair dealing; enumeration of specific rights, claims, and causes of action being
released shall not be construed to limit the general scope of this
Release. It is the intent of the parties that by this Release
Employee is giving up all rights, claims and causes of action occurring prior to
the Release Date, whether or not any damage or injury therefrom has yet
occurred. Employee accepts the risk of loss with respect to both undiscovered
claims and with respect to claims for any harm hereafter suffered arising out of
conduct, statements, performance or decisions occurring before the Release
Date.
3. VA hereby
releases and discharges Employee, his wife, heirs, executors, administrators,
successors, and assigns, from any and all actions, causes of actions, claims,
demands, grievances and complaints, known and unknown, which VA ever had or may
have at any time through the Release Date. VA acknowledges and agrees
that this Release is intended to and does cover, but is not limited to, (i) any
claim, whether statutory, common law, or otherwise, arising out of the terms or
conditions of Employee's employment at VA and/or Employee's separation from VA,
and (ii) any claim for attorneys' fees, costs, disbursements, or other like
expenses. The enumeration of specific rights, claims, and causes of
action being released shall not be construed to limit the general scope of this
Release. It is the intent of the parties that by this Release VA is
giving up all of its respective rights, claims, and causes of action occurring
prior to the Release Date, whether or not any damage or injury therefrom has yet
occurred. VA accepts the risk of loss with respect to both
undiscovered claims and with respect to claims for any harm hereafter suffered
arising out of conduct, statements, performance or decisions occurring before
the Release Date.
4. This
Release shall in no event (i) apply to any claim by either Employee or VA
arising from any breach by the other party of its obligations under the
Employment Agreement occurring on or after the Release Date, (ii) waive
Employee's claim with respect to compensation or benefits earned or accrued
prior to the Release Date to the extent such claim survives termination of
Employee's employment under the terms of the Employment Agreement, or (iii)
waive Employee's right to indemnification under the by-laws of the
Company.
5. This
Mutual Release shall be effective as of the Release Date and only if executed by
both parties.
IN
WITNESS WHEREOF, each party hereto, intending to be legally bound, has executed
this Mutual Release on the date indicated below.
VAIL ASSOCIATES,
INC.
________________________ By:__________________________
Xxxx McD.
Xxxxxxx
Date: ___________________ Date: ________________________
EXHIBIT
A
Responsibilities: Direct
responsibility for the following areas:
|
·
|
Mountain
Operations (Xxxxxxx)
|
|
·
|
Mountain
Dining (Xxxxx
|
|
·
|
Clubs
– Clubs would report to a three member operations committee which would
include Employee, Xxxx Xxxx, and Xxx Xxxxxxxx. Clubs include
Beaver Creek Club, Passport Club, Game Creek Club, Bachelor Gulch Club and
Arrowhead Alpine Club (Tjossem, Hitchcock, and
Xxxxxxx)
|
|
·
|
Beaver
Creek Golf Course (position open)
|
|
·
|
Beaver
Creek Financial Planning – you will have your own financial analyst to
track financial performance.
|
|
·
|
Beaver
Creek Village Operations – will move from Xxxxxxxx effective on
hire. (McIIveen)
|
|
·
|
Bachelor
Gulch and Arrowhead Operations – will move from Xxxxxxxx effective on
hire. (Xxxxxxx)
|
Indirect
responsibility for the following:
|
·
|
Beaver
Creek Ski and Snowboard School – shared responsibility for Beaver Creek
operation. Entire Vail/Beaver Creek Ski and Snowboard School to
continue to report to Vail SVP &
COO.
|
|
·
|
Marketing
– Shared responsibility with Xxxxx Xxxxxxx, Senior Vice President
Marketing (Xxxx Xxxxxxx).
|
EXHIBIT
B
(See
Attached)
