Exhibit 10.34
Severance agreement by and between Booth Creek Ski Group, Inc., Booth Creek
Ski Holdings, Inc., and Xxxxx X. Xxxx
BOOTH CREEK SKI HOLDINGS, INC.
BOOTH CREEK SKI GROUP, INC.
0000 X. Xxxxxxxx Xxxx Xxxx, Xxxxx 000
Xxxx XX 00000
January 22, 2002
Xx. Xxxxx X. Xxxx
00000 Xxxxxxx Xxx
Xxxxxxx, Xxxxxxxxxx 00000
1. This confirms that, should your employment with the undersigned be
terminated (other than by you or on account of your death or disability) without
Cause (as hereinafter defined), prior to November 1, 2003, then, subject to the
next sentence, immediately upon such termination, the undersigned shall pay you,
in lump sum, an amount equal to 12 months' salary. The obligation of the
undersigned to make such payment shall be conditioned on your signing and
delivering to the undersigned a general release (subject to any limitations on
the scope of such release as may be required by law) of the undersigned and its
directors, officers, stockholders, employees, and affiliated persons. "Cause"
shall have the same meaning as in the restricted stock agreement ("RSA") of even
date between you and Booth Creek Ski Group, Inc. and shall include any violation
by you of any provision of Section 2. Any dispute regarding whether your
employment shall have been terminated for cause shall be resolved by arbitration
pursuant to the arbitration provision of the RSA.
2. You (sometimes, "Executive") agree as follows:
(a) You shall regard and preserve as confidential all
proprietary or confidential information of the undersigned ("Company") or any
business concern controlling, controlled by, or under common control with
Company or of any of the East West joint ventures (which, for this purpose
includes any transaction between Company or Company affiliate and East West
Partners, Inc. or any affiliate thereof), including East West Resort Development
V, L.P., L.L.L.P. (collectively, "Companies") that has been or may be developed
or obtained by or disclosed to Executive by reason of Executive's employment
("Confidential Information") with any of the Companies. Executive shall not use
for Executive's own benefit or purpose, or the benefit or purpose of any person
other than the Companies, or disclose to others, either while employed by any of
the Companies or at any time thereafter, except as required in the course of
Executive's employment with any of the Companies, any Confidential Information.
Confidential Information shall include, but not be limited to, all nonpublic
information of any of the Companies relating to its business, including all
vendor or customer lists, financial information, methods of operation, business
plans, marketing plans, strategies, or forecasts, proprietary software or other
technology, and terms of contracts. This Section 2(a) shall not apply to
information that becomes public other than through a breach of this Agreement by
Executive; to information that Executive obtained non-confidentially before
commencement of employment with the Companies; or to any disclosure that
Executive shall be required by law to make.
(b) Executive covenants and agrees that (i) for so long as
Executive shall be employed by Company (the "Period of Employment") and (ii) for
one year following termination of your employment for Cause or under
circumstances entitling Executive to a payment under Section 1, Executive shall
not, directly or indirectly, as principal, partner, agent, employee, independent
contractor, stockholder, or otherwise, anywhere in the United States or Canada,
engage or attempt to engage in any ski resort business or ski resort real estate
development business or within 50 miles of Lake Tahoe any business activity of
the kind being conducted or planned to be conducted by any of the Companies. The
foregoing shall not prohibit Executive, together with Executive's spouse and
children, from owning beneficially any publicly traded security, so long as the
beneficial ownership by all of them, when combined with the beneficial ownership
of such publicly traded security of any person (as the term is used in Section
13(d) of the Securities Exchange Act of 1934) of which any of them is a member,
shall constitute less than 5% of the class of such publicly traded security.
(c) Executive covenants and agrees that, during the Period of
Employment, and for two years thereafter, Executive shall not, directly or
indirectly, solicit any officer or management level employee of any of the
Companies to leave such employment or to engage in any activity that Executive
would be prevented from engaging in under this Section 2.
(d) Executive covenants and agrees that, during the Period of
Employment and for any subsequent period during which Section 2(b) shall be in
effect, Executive shall not, directly or indirectly, seek to persuade any
vendor, customer, or other person doing business with any of the Companies to
cease, reduce, or not increase such business.
(e) Executive covenants and agrees that, during the Period of
Employment, and for one year thereafter, Executive shall not disparage any of
the Companies or any of the personnel of any of the Companies or reveal any
information that might impair the reputation or goodwill of any of them, except
that this Section 2(e) shall not prohibit Executive from enforcing his rights
hereunder.
(f) Executive recognizes that the foregoing limitations are
reasonable and properly required for the adequate protection of the business of
the Companies and that in the event that any territorial or time limitation is
deemed in arbitration or by a court with proper jurisdiction to be unreasonable,
Executive agrees to request, and to submit to, the reduction of said territorial
or time limitation to such an area or period as shall be deemed reasonable by
such court. If Executive shall breach any of the foregoing covenants, then the
time limitation thereof shall be extended for a period of time during which such
breach shall occur. The existence of any claim or cause of action by Executive
against any of the Companies, if any, whether predicated upon this Agreement or
otherwise, shall not constitute a defense to the enforcement of the foregoing
covenants. Executive agrees that a remedy at law for any breach or proposed or
attempted breach of any of the provisions of this Section 2 shall be inadequate
and that the Companies shall be entitled to injunctive relief with respect to
such breach or proposed or attempted breach, in addition to any other remedy it
might have.
(g) Executive agrees that the provisions of this Section 2
shall inure to the benefit of and be enforceable by any person with whom or into
which either Company shall merge or consolidate, regardless whether such Company
shall be the survivor of such transaction, or to any person acquiring all or
substantially all of either Company's assets or business.
3. The foregoing does not constitute an agreement by the undersigned to
employ you for any period of time. You, on the one hand, and the undersigned, on
the other hand, shall remain entitled at any time to terminate your employment
with the undersigned for any reason or no reason.
Please acknowledge your agreement with the foregoing by signing below in
the space provided.
Very truly yours,
BOOTH CREEK SKI HOLDINGS, INC.
BOOTH CREEK SKI GROUP, INC.
By: / s / Xxxxxxxxxxx X. Xxxxx
---------------------------------
Xxxxxxxxxxx X. Xxxxx, President
CONFIRMED AND AGREED
/ s / Xxxxx X. Xxxx
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Xxxxx X. Xxxx
