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EXHIBIT 10.22
BOOTH CREEK SKI GROUP, INC.
1997 STOCK OPTION PLAN
STOCK OPTION AGREEMENT
This STOCK OPTION AGREEMENT dated as of October 1, 1997 (this "Agreement"),
is by and between Booth Creek Ski Group, Inc., a Delaware corporation ("BCSG"),
and the individual whose name appears on the signature page hereof as "Holder"
(together with such individual's Designated Beneficiary (as defined in the
Plan), the "Holder").
RECITALS
WHEREAS, BCSG has adopted the Booth Creek Ski Group, Inc. 1997 Stock Option
Plan (the "Plan") to promote the long-term success of the Company by
strengthening the Company's ability to attract and retain highly competent
managers and other selected employees and to provide a means to encourage stock
ownership and proprietary interest in BCSG; and
WHEREAS, pursuant to the Plan, the Board of Directors of BCSG has awarded
an option (the "Option") to purchase shares of the Class A Common Stock, $0.001
par value, of BCSG ("Common Stock"), to the Holder, and BCSG and the Holder
desire to evidence and set forth the terms and conditions of the Option pursuant
to this Agreement;
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto agree as follows:
1. Defined Terms.
Capitalized terms used and not otherwise defined herein shall have the
meanings given to such terms in the Plan.
2. Grant of Option.
In accordance with the terms of the Plan, BCSG hereby grants to the Holder,
as a matter of separate agreement and not in lieu of salary or any other
compensation for services, an Option to purchase one hundred (100) shares of
Common Stock, subject to the terms and conditions of the Plan and this
Agreement. Any shares of Common Stock issuable upon the exercise of the Option
are referred to herein as "Shares."
3. Exercise Price.
The exercise price for the Option shall be $500.00 per vested Share,
subject to adjustment as provided in Section 11 hereof and Section 14 of the
Plan. The exercise price shall be paid by the Holder to BCSG on the date on
which the Option is exercised for Shares with respect to which the Option has
vested.
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4. Medium and Time of Payment.
The exercise price for Shares shall be paid in United States dollars in
cash on or prior to the date on which the Option is exercised with respect to
such Shares. Payment in full shall be required prior to the issuance of any
Shares pursuant to the Option. In addition, prior to or concurrently with
delivery to the Holder of a certificate representing such Shares, the Holder
shall pay any and all amounts necessary to satisfy applicable federal, state and
local tax requirements (including withholding requirements).
5. Vesting of Option.
(a) The Option shall not become exercisable with respect to any Shares
until the date it vests with respect to such Shares. The Option awarded pursuant
to Section 2 shall vest (i) with respect to 20% of the Shares, on the date
hereof and (ii) with respect to an additional 20% of the Shares, on each of the
second, third, fourth and fifth anniversary of the date hereof. Subject to
Sections 5(b) and 6 below, in the event Holder's Employment with the Company is
terminated (A) by the Company for any reason (other than for Cause), (B) as a
result of the death or disability of the Holder or (C) by the Holder, if the
Holder is a party to a written employment agreement with the Company, (i) as the
result of a breach by the Company in any material respect of its obligations
under its employment agreement with such Holder and the Company's failure to
cure such breach within any cure periods provided therein or (ii) as the result
of a material reduction by the Company in such Holder's reporting
responsibilities, titles, authority, offices or duties as in effect immediately
prior to such change and the Company's failure to cure such reduction within any
cure periods provided in such Holder's employment agreement, in any case, during
the period commencing on the first anniversary of the date hereof and ending on
the fifth anniversary of the date hereof, then the Option shall vest with
respect to an additional 1.6667% of the Shares for each full month between the
date of the immediately preceding anniversary of the date hereof and the
Employment Termination Date (i.e., the 20% that would have vested at the end of
such year will vest on a monthly, pro rata basis).
(b) Notwithstanding the provisions of Section 5(a) hereof, if not
earlier terminated, the Option shall immediately become fully vested and
exercisable with respect to all Shares upon (i) the occurrence of a Change in
Control or (ii) the termination by Holder of Holder's Employment within 45 days
after either of the two following occurrences (each is referred to hereinafter
as, a "Good Reason"): (A) Xxxxxx X. Xxxxxxx, Xx. ceases to be Chief Executive
Officer of BCSG or (B) Xxxxxx X. Xxxxxxx, Xx. and members of his immediate
family cease to own sufficient shares of stock of BCSG to be able to elect a
majority of the Board of Directors of BCSG.
(c) The Option shall not vest or become exercisable with respect to any
Shares solely as a result of a Public Offering, but shall vest and become
exercisable only as otherwise set forth in Sections 5(a) and (b) hereof.
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(d) Notwithstanding anything else herein to the contrary, in no event
may the Option be exercised with respect to a vested Share after the tenth
anniversary of the Effective Date, except as otherwise provided in the proviso
to Section 6(b) hereof.
6. Termination of Employment.
(a) (i) If the Holder's Employment is terminated for Cause (as defined
in clause (ii)(B) or (ii)(C) of the definition thereof (or, if applicable, the
corresponding provisions of the definition of "cause" in Holder's employment
agreement with the Company)), the Holder's Option, whether or not vested at the
Employment Termination Date with respect to any Shares, will be automatically
canceled as of the Employment Termination Date.
(ii) If Holder's Employment is terminated for Cause (other than of
the type referenced in Section 6(a)(i) hereof), the Holder's Option will be
automatically canceled as of the Employment Termination Date (A) to the extent
not vested at the Employment Termination Date with respect to any Shares and (B)
to the extent of 50% of the Shares that have vested as of the Employment
Termination Date (other than the Shares with respect to which the Option vested
on the Award Date).
(b) If the Holder's Employment is terminated for any reason (other
than by the Company for Cause), including due to the Holder's death, disability,
voluntary resignation or termination by the Company for reasons other than for
Cause, that portion of the Holder's Option that was not vested in Shares at the
Employment Termination Date (according to the rules provided therefor in Section
5 hereof) will be automatically canceled as of the Employment Termination Date,
and the Shares subject to that portion of the Holder's Option that were vested
at the Employment Termination Date must be purchased by the Holder for the
Exercise Price within 120 days of such Employment Termination Date, or otherwise
be canceled on such 120th day; provided, however, that if (i) BCSG is then
prohibited by law or by any agreement to which it is bound from purchasing any
such Shares pursuant to a Put and the Common Stock is not then Publicly Traded
or (ii) the Common Stock is Publicly Traded but the Holder is subject to a
contractual agreement, executed by the Holder at the request of the Company, not
to sell Shares, Holder shall have the right to purchase such Shares until 120
days after the earlier of (A) Holder's receipt of written notice from BCSG that
BCSG is able to perform its obligations under Section 7 with respect to such
Shares and (B) the Common Stock becoming Publicly Traded and any such
contractual restrictions cease to apply, and such Shares have been registered in
accordance with Section 10(b). If the Holder does not exercise Holder's right to
purchase such Shares by the expiration of such 120-day period, the Option shall
be canceled upon the expiration of such 120-day period; provided, however, that
if Holder has delivered a Put Notice, but the Put Closing has not occurred on or
as of such 120th day, Holder shall have the right to purchase such Shares until
and including the date of the Put Closing. BCSG will provide such notice
promptly following its becoming permitted to purchase such Shares.
7. Put Rights.
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(a) Put. Subject to Section 7(d) hereof, if the Holder's Employment is
terminated for any reason other than Cause, the Holder will have the right (a
"Put"), for a period of 180 Qualified Days commencing on the Employment
Termination Date, exercisable by delivery of written notice (the "Put Notice")
to BCSG, to require BCSG to purchase for the Put Price (as defined below) any
part or all of the Shares then owned by the Holder which has been issued upon
exercise of the Holder's Option or which is issuable upon the exercise of the
Holder's Option (the Shares or the underlying Option described in each Put
Notice is referred to collectively as the "Put Shares"). For purposes hereof, a
"Qualified Day" is any day on which BCSG is not prohibited by law or by any
agreement to which it is bound from purchasing Shares pursuant to a Put. The
Holder may not deliver more than one Put Notice. A Put Notice, once delivered,
shall be irrevocable. The date on which a Put Notice is so delivered by the
Holder shall be referred to as the "Put Exercise Date."
(b) Determination of Put Price. The "Put Price" shall be the price of
the Put Shares on the Employment Termination Date determined as set forth in
this Section 7(b). In the event that a Put is exercised by Holder with respect
to Shares without Holder first having exercised the Option with respect to such
Shares, the Put Price for such Shares shall be equal to (i) the Put Price
determined in accordance with this Section 7(b) minus (ii) the Exercise Price
for such Shares. The Holder and BCSG shall seek to reach agreement on the fair
market value of the Put Shares for a period of up to 30 days after the Put
Exercise Date and, if they shall reach agreement thereon, the dollar amount so
agreed upon shall be the "Put Price". For purposes of this Agreement, the fair
market value of the Put Shares will be their pro rata portion of the fair market
value of all of the shares of Common Stock outstanding (on a fully diluted
basis). If the Holder and BCSG are unable to reach agreement within such 30-day
period, the Holder and BCSG shall seek for an additional 15 days to reach
agreement on an Investment Bank to determine the fair market value of the Put
Shares on the Put Exercise Date. If the parties reach agreement on an Investment
Bank, such Investment Bank shall be promptly retained by BCSG and shall, within
60 days following its retention, determine the fair market value of the Put
Shares on the Put Exercise Date and submit its report to each of the parties. If
the parties are unable to reach agreement on an Investment Bank, each party
shall, within the following 15 days, deliver to the other party a list of six
Investment Banks, numbered one through six. The Investment Bank appearing on
both lists and having the lowest total numbers assigned to it shall be promptly
retained by BCSG and shall, within 60 days following its retention, determine
the fair market value of the Put Shares (as provided above) and submit its
report to each of the parties (e.g., if Investment Bank X is assigned number 1
on the Holder's list and number 6 on BCSG's list and Investment Bank Y is
assigned number 2 on BCSG's list and number 4 on the Holder's list, Investment
Bank Y shall be retained to determine the Put Price). If either party fails to
deliver a list of six Investment Banks within such 15-day period, the
determination as to "Put Price" shall be made by the Investment Bank assigned
number one on the list of the other party. If no Investment Bank appears on the
lists of both the Holder and BCSG, the Holder and BCSG shall, within the
following 15-day period, deliver to the other party a list of six Investment
Banks, numbered one through six. The Investment Bank appearing on both lists and
having the lowest total numbers assigned to it shall be promptly retained by
BCSG to determine the fair market value of the Put Shares in accordance with the
foregoing. If no Investment Bank appears on the lists of both the Holder and
BCSG, the Holder and BCSG shall continue to deliver lists of six Investment
Banks until
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one Investment Bank is chosen as provided above. In any event, if no Investment
Bank has been chosen pursuant to this methodology within 90 days after the Put
Exercise Date, either the Holder or BCSG may retain the American Arbitration
Association to select an Investment Bank. The fees and expenses of any
Investment Bank retained to determine the Put Price shall be paid by BCSG. The
determination of the Put Price by an Investment Bank in accordance with the
terms hereof shall be final and binding on the Holder and BCSG.
(c) Put Closing. The closing (the "Put Closing") of the purchase and
sale of Shares pursuant to a Put will take place on a date selected by BCSG
which will be no earlier than the 16th and no later than the 30th day following
the date of the final determination of the Put Price pursuant to Section 7(b)
hereof. Payment of the Put Price for all Shares tendered will be paid by BCSG at
the Put Closing by cashier's or certified check or by wire transfer of
immediately available funds to an account designated by the Holder. If Holder's
right to exercise Holder's Option was suspended in accordance with the proviso
to Section 6(b), BCSG shall pay to the Holder, in addition to the Put Price,
interest on the unpaid Put Price at an annual rate equal to the prime rate as
published from time to time by The Wall Street Journal for the period between
the Put Exercise Date and the Put Closing.
(d) Limitations on Put Rights. Notwithstanding anything in this
Agreement to the contrary, (i) Holder shall not have a Put with respect to any
Shares if and so long as the Common Stock is Publicly Traded and (ii) BCSG shall
not be required to purchase any Shares pursuant to a Put to the extent that BCSG
is then prohibited from doing so by law or by any agreement to which it is
bound.
8. Call Right.
(a) Call. BCSG shall have the right (a "Call"), exercisable at any time
after the termination of Holder's Employment by the Company for Cause or by the
Holder without Good Reason, in either case, by the delivery of written notice to
the Holder (a "Call Notice"), to purchase all Shares acquired by such Holder
pursuant to the exercise of an Option (the Shares described in each Call Notice
is referred to collectively as the "Call Shares"). The date on which a Call
Notice is so delivered by BCSG shall be referred to as the "Call Exercise Date."
(b) Determination of Call Price. The "Call Price" shall be the price
of the Call Shares on the Call Exercise Date determined as set forth in this
Section 8(b). The Holder and BCSG shall seek to reach agreement on the fair
market value of the Call Shares for a period of up to 30 days after the Call
Exercise Date and, if they shall reach agreement thereon, the dollar amount so
agreed upon shall be the "Call Price". For purposes of this Agreement, the fair
market value of the Call Shares will be their pro rata portion of the fair
market value of all of the shares of Common Stock outstanding (on a fully
diluted basis). If the Holder and BCSG are unable to reach agreement within such
30-day period, the Holder and BCSG shall seek for an additional 15 days to reach
agreement on an Investment Bank to determine the fair market value of the Call
Shares on the Call Exercise Date. If the parties reach agreement on an
Investment Bank, such Investment Bank shall be
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promptly retained by BCSG and shall, within 60 days following its retention,
determine the fair market value of the Call Shares on the Call Exercise Date and
submit its report to each of the parties. If the parties are unable to reach
agreement on an Investment Bank, each party shall, within the following 15 days,
deliver to the other party a list of six Investment Banks, numbered one through
six. The Investment Bank appearing on both lists and having the lowest total
numbers assigned to it shall be promptly retained by BCSG and shall, within 60
days following its retention, determine the fair market value of the Call Shares
(as provided above) and submit its report to each of the parties. If either
party fails to deliver a list of six Investment Banks within such 15-day period,
the determination as to "Call Price" shall be made by the Investment Bank
assigned number one on the list of the other party. If no Investment Bank
appears on the lists of both the Holder and BCSG, the Holder and BCSG shall,
within the following 15-day period, deliver to the other party a list of six
Investment Banks, numbered one through six. The Investment Bank appearing on
both lists and having the lowest total numbers assigned to it shall be promptly
retained by BCSG to determine the fair market value of the Call Shares in
accordance with the foregoing. If no Investment Bank appears on the lists of
both the Holder and BCSG, the Holder and BCSG shall continue to deliver lists of
six Investment Banks until one Investment Bank is chosen as provided above. In
any event, if no Investment Bank has been chosen pursuant to this methodology
within 90 days after the Call Exercise Date, either the Holder or BCSG may
retain the American Arbitration Association to select an Investment Bank. The
fees and expenses of any Investment Bank retained to determine the Call Price
shall be paid by BCSG. The determination of the Call Price by an Investment Bank
in accordance with the terms hereof shall be final and binding on the Holder and
BCSG.
(c) Call Closing. Each closing (a "Call Closing") of the purchase and
sale of Shares pursuant to a Call will take place on a date selected by BCSG
which will be no earlier than the 16th and no later than the 30th day following
the date of the final determination of the Call Price pursuant to Section 8(b)
hereof. Payment of the Call Price for all Shares tendered will be paid by BCSG
at the Call Closing by cashier's or certified check or by wire transfer of
immediately available funds to an account designated by the Holder.
9. Stockholders Agreement.
The Shares shall be subject to the terms of the Stockholders Agreement.
Concurrently with the issuance to Holder of Shares upon the exercise of the
Option, Holder shall become a party to the Stockholders Agreement by executing
an amendment or restatement of the Stockholders Agreement or a supplementary
agreement to that effect. The certificates representing Shares issued upon
exercise of the Option shall bear the legends required by the Stockholders
Agreement and such other legends as BCSG may deem appropriate to comply with all
applicable federal and state securities laws.
10. Compliance with Securities Laws.
(a) Unless the Shares issued upon exercise of the Option are registered
under the Securities Act of 1933, as amended (the "Securities Act"), and the
securities laws of all other
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appropriate jurisdictions, the obligation of BCSG to issue Shares upon exercise
of the Option shall be subject to receipt from Holder of a written
representation to the effect that (i) Holder is purchasing the Shares for
Holder's own account for investment, and not with a view to, or for resale in
connection with, the distribution thereof, and has no present intention of
distributing or reselling any thereof, (ii) Holder has the financial ability to
bear the economic risks of Holder's investment in the Shares to be purchased,
(iii) Holder has such knowledge and experience in financial and business
matters, and knowledge of and experience with the Company, to be capable of
evaluating the merits and risks of the purchase of the Shares to be purchased by
Holder, and (iv) such other representations as are necessary or appropriate to
establish an exemption from registration. Shares issued or issuable upon the
exercise of the Option shall not be transferable unless an exemption from such
registration is available and, as appropriate, only with a written opinion of
counsel (which shall be satisfactory in form and substance to BCSG) that an
exemption from registration under the Securities Act is available and that the
transaction would not violate any applicable securities laws. Certificates for
the Shares will bear such legends as BCSG deems necessary or appropriate in
connection with the Securities Act and all other applicable securities laws.
(b) BCSG shall have no obligation to register the Shares under the
federal securities laws or take any other steps as may be necessary to enable
the Shares to be offered and sold under the securities laws of any jurisdiction;
provided, however, that in the event the Common Stock at any time becomes
Publicly Traded, BCSG shall promptly cause the Shares to be registered pursuant
to a Form S-8 registration statement.
11. Dilution and Other Adjustments; Extraordinary Dividends.
(a) In the event the shares of Common Stock, as presently constituted,
shall be changed into or exchanged for a different number or kind of shares of
stock or other securities of BCSG or of another corporation (whether by reason
of merger, consolidation, recapitalization, reclassification, split, reverse
split, combination of shares or otherwise) or if the number of such shares of
Common Stock shall be increased through the payment of a stock dividend, then
there shall be substituted for or added to each share of Common Stock subject or
which may become subject to the Option, the number and kind of shares of stock
or other securities into which each outstanding share of Common Stock shall be
so changed, or for which each such share shall be exchanged, or to which each
such share shall be entitled, as the case may be. The Option shall also be
appropriately amended as to price and other terms as the Board, in its sole
discretion, may determine are necessary to reflect the foregoing events.
(b) In the event that BCSG shall pay any extraordinary dividends or
extraordinary distributions (which determination, in either case, shall be made
in the good faith determination of the Board) on or with respect to the Common
Stock, the Board shall treat the Option as having been fully exercised but shall
retain the dividends or distributions applicable to the Option and release such
dividends or distributions (without interest thereon) to the Holder of the
Option only if, to the extent and at such time as the Option shall be exercised.
Holder shall not be entitled to receive any extraordinary dividends or
extraordinary distributions unless and until Holder's Option shall have
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vested and been exercised. Except as otherwise expressly provided in this
Section 11(b), Holder shall not have any right to any dividends or distributions
on or with respect to the Shares, unless and until Holder becomes a holder of
Shares.
12. Miscellaneous Provisions.
(a) The Holder shall have no rights as a holder of BCSG's Common Stock
with respect to the Option, unless and until certificates for Shares are issued
to the Holder, except as otherwise provided in Section 11(b) hereof.
(b) The Option shall not be transferable or assignable other than (i) by
will or the laws of descent and distribution; (ii) by gift or other transfer to
any trust or estate in which the original Holder or such Holder's spouse or
other immediate relative has a substantial beneficial interest, or to a spouse
or other immediate relative; or (iii) pursuant to a domestic relations order (as
defined by the Code); provided, however, that the Option, if so transferred,
shall continue to be subject to all the terms and conditions hereof. Shares
received upon the exercise of the Option shall be transferable or assignable
only pursuant to the terms of the Stockholders Agreement.
(c) Neither this Agreement, the Option, the Plan nor any action taken
hereunder or thereunder shall be construed as giving any employee, including the
Holder, any right to be retained in the employ of the Company or any of its
Affiliates or shall interfere with or restrict in any way the rights of the
Company or any of its Affiliates, which are hereby reserved, to discharge Holder
at any time for any reason whatsoever, with or without cause.
(d) The Option shall be canceled if it does not vest in accordance with
Section 5 hereof.
(e) The costs and expenses of the administering the Plan shall be borne
by BCSG and not charged to the Holder.
(f) During the term of the Option and Plan, BCSG will at all times
reserve and keep available such numbers of Shares as may be issuable under the
Plan upon exercise of the Option.
(g) This Agreement is an Individual Option Agreement as described in
Section 8 of the Plan. This Agreement is intended to conform in all respects
with, and is subject to all applicable provisions of, the Plan, which is
incorporated herein by reference. Any inconsistency between this Agreement and
the Plan shall be resolved in accordance with the terms of the Plan. By
executing and delivering this Agreement, Holder acknowledges receipt of the Plan
and agrees to be bound by all of the terms thereof.
(h) In the event that a court of competent jurisdiction determines that
BCSG has failed to perform in any material respect any of its obligations under
the Plan or this Agreement, BCSG shall pay all reasonable attorneys' fees and
disbursements incurred by Holder in enforcing such Holder's rights thereunder or
hereunder with respect to such failure to perform.
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13. Amendments and Termination.
(a) The Plan may be amended by the Board as it deems necessary or
appropriate to better achieve the purposes of the Plan, except that no such
amendment which would increase the number of shares available for issuance
(except as required in accordance with Section 14 of the Plan or Section 11
hereof) shall be made without the approval of the holders of a majority of
BCSG's outstanding Common Stock. The Board may suspend the Plan or terminate the
Plan at any time; provided, that no such action shall adversely affect any
benefit outstanding hereunder.
(b) The Board, in its sole discretion, may amend this Agreement or the
Plan as it relates to the Option without the consent of Holder, but not in any
manner adversely affecting the rights, interests or obligations of Holder
hereunder.
14. Tax Withholding.
BCSG shall have the right to deduct from any settlement of the Option,
including the delivery or vesting of Shares, a sufficient amount to cover
withholding of any federal, state or local taxes required by law, or to take
such other action as may be necessary to satisfy any such withholding
obligations, including requiring that Holder, upon exercise of the Option, pay
to BCSG in cash, in addition to the Exercise Price for Shares to be issued, an
amount equal to any withholding tax liability incurred by BCSG in connection
with such issuance.
15. Other Benefit and Compensation Programs.
Unless otherwise specifically determined by the Board, the Option is
intended to be "non-qualified compensation" under the Code and shall not be
deemed a part of Holder's regular, recurring compensation for purposes of
calculating payments or benefits from any Company benefit plan or severance
program. Further, the Company may adopt other compensation programs, plans or
arrangements as it deems appropriate or necessary. Nothing in this Agreement
shall be deemed to confer upon Holder any right to receive additional options
under the Plan.
16. Unfunded Plan; No Fiduciary Relationship.
Unless otherwise determined by the Board, the Plan shall be unfunded and
shall not create (or be construed to create) a trust or a separate fund or
funds. The Plan shall not establish any fiduciary relationship between BCSG and
the Holder or other Person. To the extent any Person holds any rights by virtue
of an award granted under the Plan, such rights shall be no greater than the
rights of an unsecured general creditor of BCSG.
17. Regulatory Approvals.
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The implementation of the Plan, the granting of the Option and the
issuance of Shares upon the exercise or settlement thereof shall be subject to
BCSG's procurement of all approvals and permits required by regulatory
authorities having jurisdiction over the Plan, the Options granted under it or
the Shares issued pursuant to it.
18. Successors and Assigns.
This Agreement shall be binding on all heirs, successors and assigns of the
Holder, including, without limitation, his or her Designated Beneficiary and the
estate of the Holder and the executor, administrator or trustee of such estate,
or any receiver or trustee in bankruptcy or representative of the Holder's
creditors.
19. GOVERNING LAW.
THE VALIDITY AND CONSTRUCTION OF THE PLAN AND THIS AGREEMENT SHALL BE
GOVERNED BY THE LAWS OF THE STATE OF DELAWARE.
[signature page follows]
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IN WITNESS WHEREOF, BCSG and the Holder have duly executed this Stock
Option Agreement as of the date first written above.
BOOTH CREEK SKI GROUP, INC.,
a Delaware corporation
By: /s/ Xxxxxxx X. Xxxxx
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Name:
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Title:
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HOLDER:
/s/ Xxxxxxx Xxxxxxx
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Xxxxxxx Xxxxxxx
Address:
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