As
filed with the Securities and Exchange Commission on September 7,
2007
Registration
No. 333-____________
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
________________________
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE
SECURITIES ACT OF 1933
________________________
VAIL
RESORTS, INC.
(Exact
name of Registrant as specified in its charter)
|
Delaware
|
51-0291762
|
|
(State
or other jurisdiction of incorporation or organization)
|
(I.R.S.
Employer Identification No.)
|
|
390
Interlocken Crescent, Suite 1000
Broomfield,
Colorado
|
80021
|
|
(Address
of Principal Executive Offices)
|
(Zip
Code)
|
Vail
Resorts, Inc. 1999 Long Term Incentive and Share Award
Plan
Vail
Resorts, Inc. Amended and Restated 2002 Long Term Incentive and Share Award
Plan
(Full
title of the Plan)
|
________________________
Fiona
Arnold, Esq.
Senior
Vice President and General Counsel
Vail
Resorts, Inc.
390
Interlocken Crescent, Suite 1000
Broomfield,
Colorado 80021
(303)
404-1800
|
(Name,
address and telephone number, including area code, of agent for
service)
Copy
to:
Richard
J. Mattera, Esq.
Hogan
& Hartson LLP
One
Tabor Center, Suite 1500
1200
Seventeenth Street
Denver,
Colorado 80202
(303)
899-7300
CALCULATION
OF REGISTRATION FEE
|
Title
of securities
to
be registered
|
Amount
to
be
Registered
(1)
|
Proposed
maximum
offering
price
per
share (2)
|
Proposed
maximum
aggregate
offering
price
(2)
|
Amount
of
registration
fee
(2(3))
|
|
Common
Stock, par value $.01 per share
|
4,191,429
|
$56.35
|
$198,820,465
|
$4,695.57
|
|
(1)
|
Pursuant
to Rule 416 under the Securities Act of 1933, as amended (the "Securities
Act"), this registration statement covers, in addition to the number
of
shares of common stock shown above, an indeterminate number of shares
of
common stock that, by reason of certain events specified in the plan
(e.g., anti-dilution adjustments), may become subject to such
plan.
|
|
(2)
|
Estimated
solely for the purpose of calculating the registration fee pursuant
to
Rules 457(c) and 457(h) under the Securities Act, based upon (A)
the
average of the high and low sales prices reported for the Registrant's
common stock on the New York Stock Exchange on August 30, 2007 with
respect to 2,900,400 shares of common stock at $56.35 per share,
and (B)
the weighted average exercise price of $27.43 per share with respect
to
outstanding share based awards for 1,291,029 shares of common
stock.
|
|
(3)
|
Pursuant
to Rule 457(p) under the Securities Act, the amount of registration
fee
has been offset by $1,409.13, which is the aggregate total dollar
amount
of the filing fee associated with 1,114,765 shares of Common Stock
which
were offered under a registration statement on Form S-8 filed with
the
Commission on December 8, 2003 (File No. 333-111020) and remained
unsold
at the termination of the offering and deregistered pursuant to
Post-Effective Amendment No. 1 to the registration statement on Form
S-8
filed on September 7, 2007 (File No.
333-111020).
|
PART
I
INFORMATION
REQUIRED IN SECTION 10(a) PROSPECTUS
Item
1. Plan
Information.*
Item
2. Registrant
Information and Employee Plan Annual Information.*
|
|
*
|
The
documents containing the information specified in Part I will be sent
or given to participants in the Vail Resorts, Inc. 1999 Long Term
Incentive and Share Award Plan and the Vail Resorts, Inc. Amended
and
Restated 2002 Long Term Incentive and Share Award Plan (collectively,
the
“Plans”) as specified by Rule 428(b)(1) under the Securities
Act. Pursuant to the Note to Part I of Form S-8, such
documents will not be filed with the Securities and Exchange Commission
(the “Commission”) either as part of this registration statement or as
prospectuses or prospectus supplements pursuant to Rule 424 under the
Securities Act. These documents and the documents incorporated by
reference pursuant to Item 3 of Part II of this registration
statement, taken together, constitute the prospectus that meets the
requirements by Section 10(a) of the Securities
Act.
|
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation
of Documents by Reference.
The
following documents and all other
documents subsequently filed with the Commission by Vail Resorts, Inc. (the
“Registrant”) pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing
of a
post-effective amendment that indicates that all the shares of common stock
offered hereby have been sold or that deregisters all such shares of common
stock then remaining unsold, shall be deemed incorporated by reference herein
and to be a part of this registration statement from the date of filing of
such
documents:
(a) the
Registrant’s annual report on Form 10-K/A for its fiscal year ended July 31,
2006, filed with the Commission on August 24, 2007;
(b) the
Registrant’s quarterly reports on Form 10-Q/A for its fiscal quarters ended
October 31, 2006, filed with the Commission on August 24, 2007, and January
31,
2007, filed with the Commission on August 24, 2007, and April 30, 2007, filed
with the Commission on August 24, 2007;
(c) the
Registrant’s current reports on Form 8-K, filed with the Commission on October
10, 2006, December 7, 2006, December 22, 2006, February 2, 2007, March 19,
2007,
April 4, 2007, August 8, 2007 and August 24, 2007 (with respect to Item 4.02
only); and
(d) the
description of the Registrant’s common stock as set forth in the Registrant’s
registration statement on Form 8-A filed with the Commission on July
3, 1996 (File No. 001-09614), including all amendments and reports filed for
the
purpose of updating such description.
Any
statement contained herein or in a document incorporated or deemed to be
incorporated by reference shall be deemed to be modified or superseded for
purposes of this registration statement to the extent that a statement contained
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such prior
statement. Any such statement so modified or superseded shall not be
deemed to constitute a part of this registration statement, except as so
modified or superseded.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Officers and Directors.
Section
145 of the Delaware General
Corporation Law (the “DGCL”) provides as follows:
(a)
A corporation shall have power to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or
in
the right of the corporation) by reason of the fact that the person is or was
a
director, officer, employee or agent of the corporation, or is or was serving
at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts
paid
in settlement actually and reasonably incurred by the person in connection
with
such action, suit or proceeding if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the person's conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere
or
its equivalent, shall not, of itself, create a presumption that the person
did
not act in good faith and in a manner which the person reasonably believed
to be
in or not opposed to the best interests of the corporation, and, with respect
to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
(b)
A corporation shall have power to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of
the
corporation to procure a judgment in its favor by reason of the fact that the
person is or was a director, officer, employee or agent of the corporation,
or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of
the
corporation and except that no indemnification shall be made in respect of
any
claim, issue or matter as to which such person shall have been adjudged to
be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of
all
the circumstances of the case, such person is fairly and reasonably entitled
to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c)
To the extent that a present or
former director or officer of a corporation has been successful on the merits
or
otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of this section, or in defense of any claim, issue
or
matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
therewith.
(d)
Any indemnification under
subsections (a) and (b) of this section (unless ordered by a court) shall be
made by the corporation only as authorized in the specific case upon a
determination that indemnification of the present or former director, officer,
employee or agent is proper in the circumstances because the person has met
the
applicable standard of conduct set forth in subsections (a) and (b) of this
section. Such determination shall be made, with respect to a person
who is a director or officer at the time of such determination, (1) by a
majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) by a committee of such
directors designated by majority vote of such directors, even though less than
a
quorum, or (3) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (4) by the
stockholders.
(e)
Expenses (including attorneys'
fees) incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director
or
officer to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the corporation as authorized in
this section. Such expenses (including attorneys' fees) incurred by
former directors and officers or other employees and agents may be so paid
upon
such terms and conditions, if any, as the corporation deems
appropriate.
(f)
The indemnification and advancement
of expenses provided by, or granted pursuant to, the other subsections of this
section shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both
as
to action in such person's official capacity and as to action in another
capacity while holding such office.
(g)
A corporation shall have power to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving
at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether
or
not the corporation would have the power to indemnify such person against such
liability under this section.
(h)
For purposes of this section,
references to "the corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who is or
was a
director, officer, employee or agent of such constituent corporation, or is
or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under this section
with respect to the resulting or surviving corporation as such person would
have
with respect to such constituent corporation if its separate existence had
continued.
(i)
For purposes of this section,
references to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise taxes assessed
on a person with respect to any employee benefit plan; and references
to "serving at the request of the corporation" shall include any service as
a
director, officer, employee or agent of the corporation which imposes duties
on,
or involves services by, such director, officer, employee or agent with respect
to an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner such person reasonably believed
to be in the interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not opposed to the
best
interests of the corporation" as referred to in this section.
(j)
The indemnification and advancement
of expenses provided by, or granted pursuant to, this section shall, unless
otherwise provided when authorized or ratified, continue as to a person who
has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a
person.
(k)
The Court of Chancery is hereby
vested with exclusive jurisdiction to hear and determine all actions for
advancement of expenses or indemnification brought under this section or under
any bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise. The Court of Chancery may summarily determine a
corporation's obligation to advance expenses (including attorneys'
fees).
Section
37 of the Registrant’s Bylaws
provides as follows:
(a)
Without limiting the generality or
effect of Article Eight of the Restated Certificate of Incorporation, the
Corporation shall, to the fullest extent permitted by applicable law as then
in
effect, indemnify any person (an "Indemnitee") who is or was involved in any
manner (including, without limitation, as a party or a witness) or is threatened
to be made so involved in any threatened, pending, or completed investigation,
claim, action suit, or proceeding, whether civil, criminal, administrative,
or
investigative (including, without limitation, any action, suit, or proceeding
by
or in the right of the Corporation to procure a judgment in its favor) (a
"Proceeding") by reason of the fact that on or after the Effective Date such
person is or was or had agreed to become a Director, officer or employee of
the
Corporation, or on or after the Effective Date is or was or had agreed to become
at the request of the Board or of an officer of the Corporation, a director,
officer, or employee of another corporation, partnership, joint venture, trust,
or other entity, whether for profit or not for profit (including the heirs,
executors, administrators, or estate of such person), or anything done or not
by
such person in any such capacity, against all expenses (including, without
limitation, attorneys' fees, judgments, fines, and amounts paid in settlement)
actually and reasonably incurred by such person in connection with such
Proceeding. Such indemnification shall be a contract right and shall
include the right to receive payment in advance of any expenses incurred by
an
Indemnitee in connection with such Proceeding, consistent with the provisions
of
applicable law as then in effect.
(b)
If any provision or provisions of
this Bylaw 37 are held to be invalid, illegal, or unenforceable for any reason
whatsoever: (i) the validity, legality, and enforceability of the remaining
provisions of this Bylaw 37 (including, without limitation, all portions of
any
paragraph of this Bylaw 37 containing any such provision held to be invalid,
illegal, unenforceable, that are not themselves invalid, illegal, or
unenforceable) will not in any way be affected or impaired thereby and (ii)
to
the fullest extent possible, the provisions of this Bylaw 37 (including without
limitation, all portions of any paragraph of this Bylaw 37 containing any such
provision held to be invalid, illegal, or unenforceable, that are not themselves
invalid, illegal, or unenforceable) will be construed so as to give effect
to
the intent manifested by the provision held invalid, illegal, or
unenforceable.
Article
8 of the Registrant’s Amended
and Restated Certificate of Incorporation provides as follows:
SECTION
8.01 Indemnity. Each
person serving as a director, officer or employee of the Corporation (including
the heirs, executors, administrators or estate of such person), shall be
indemnified and held harmless by the Corporation to the fullest extent permitted
by the Delaware General Corporation Law or any other applicable law as currently
or hereafter in effect.
SECTION
8.02 Modification
of Indemnification. Without limiting the generality or the effect of
the foregoing Section 8.01, the Corporation may adopt by-laws or enter into
one
or more agreements with any person which provide for indemnification greater
or
different than that provided in this Article 8 or the Delaware General
Corporation Law or any other applicable law. Notwithstanding anything
contained in Article 6 of this Amended and Restated Certificate of Incorporation
or in the by-laws of the Corporation to the contrary, the amendment or repeal
of, or adoption of any provision inconsistent with, this Article 8 shall be
taken only upon the affirmative vote of the holders of at least 80% of the
Common Stock issued and outstanding entitled to vote thereon. Any
amendment or repeal of, or adoption of any provision inconsistent with, this
Article 8 shall not adversely affect any right or protection existing hereunder
prior to such amendment, repeal, or adoption.
SECTION
8.03 Non-Exclusivity. The right of
indemnification provided in this Article 8 shall not be exclusive of any other
rights to which any person seeking indemnification may otherwise be entitled
including, without limitation, any contract approved by a majority of the
Directors, whether or not the Directors approving such contract are or are
to be
or may become parties to such contract or similar contracts.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
Exhibit
No. Description
of Exhibit
|
|
4.1
|
Vail
Resorts Inc. 1999 Long Term Incentive and Share Award
Plan
|
|
|
4.2
|
Vail
Resorts Inc. Amended and Restated 2002 Long Term Incentive and Share
Award
Plan
|
|
|
5.1
|
Opinion
of Hogan & Hartson L.L.P. with respect to the legality of the common
stock registered hereby.
|
|
|
23.1
|
Consent
of PricewaterhouseCoopers LLP, Independent Registered Public Accounting
Firm, with respect to the
Registrant.
|
|
|
23.2
|
Consent
of Hogan & Hartson L.L.P. (contained in its opinion filed herewith as
Exhibit 5.1).
|
|
|
24.1
|
Power
of Attorney (included on the signature page to this registration
statement).
|
Item
9. Undertakings.
|
|
(a) The
undersigned Registrant hereby
undertakes:
|
|
|
(1) To
file, during any period in which offers or sale are being made, a
post-effective amendment to this
|
Registration
Statement:
(i) To
include any
prospectus required by Section 10(a)(3) of the Securities Act;
(ii)
To
reflect in the prospectus any facts or events arising after the effective date
of this Registration Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate, represent a fundamental change
in the information set forth in the registration statement. Notwithstanding
the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement; and
(iii) To
include any
material information with respect to the plan of distribution not
previously
disclosed
in this Registration Statement or any material change to such information in
this Registration Statement;
Provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration
Statement.
(2) That,
for the purpose of determining any liability under the Securities Act, each
such
post-effective amendment shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering
thereof.
(3) To
remove from registration by means of a post-effective amendment any of the
securities being registered which remain unsold at the termination of the
offering.
(b) The
undersigned Registrant hereby undertakes that, for purposes of determining
any
liability under the Securities Act, each filing of the Registrant’s annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that
is
incorporated by reference in this registration statement shall be deemed to
be a
new registration statement relating to the securities offered therein, and
the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than for the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by
such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of competent
jurisdiction the question of whether such indemnification by it is against
public policy as expressed by the Securities Act and will be governed by the
final adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, as amended, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Broomfield, State of Colorado, on this 7th day of
September,
2007.
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|
VAIL
RESORTS, INC.
|
|
|
By:
|
/s/
Fiona Arnold
|
|
|
|
Name:
|
Fiona
Arnold
|
|
|
Title:
|
Senior
Vice President and General Counsel
|
KNOW
ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Jeffrey W. Jones and Fiona Arnold, in his or her own
capacity, his true and lawful attorneys-in-fact and agents, with full power
of
substitution and resubstitution, to sign, execute and file with the Commission
(or any other governmental or regulatory authority), for us and in our names
in
the capacities indicated below, this registration statement on Form S-8
(including all amendments thereto) with all exhibits and any and all documents
required to be filed with respect thereto, granting unto said attorneys-in-fact
and agents and each of them, full power and authority to do and to perform
each
and every act and thing necessary or desirable to be done in and about the
premises in order to effectuate the same as fully to all intents and purposes
as
the undersigned might or could do if personally present, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, may
lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the
Securities Act of 1933, as amended, this registration statement has been signed
by the following persons in the capacities and on the dates
indicated.
|
Signature
|
Title
|
Date
|
|
/s/
Robert A. Katz
|
Chief
Executive Officer and Director
|
September
7, 2007
|
|
Robert
A. Katz
|
(Principal
Executive Officer)
|
|
|
/s/
Jeffrey W. Jones
|
Senior
Executive Vice President and
|
September
7, 2007
|
|
Jeffrey
W. Jones
|
Chief
Financial Officer
|
|
|
(Principal
Financial and Accounting Officer)
|
||
|
/s/
Joe R. Micheletto
|
September
7, 2007
|
|
|
Joe
R. Micheletto
|
Chairman
of the Board of Directors
|
|
|
/s/
John J. Hannan
|
September
7, 2007
|
|
|
John
J. Hannan
|
Director
|
|
|
/s/
Roland A. Hernandez
|
September
7, 2007
|
|
|
Roland
A. Hernandez
|
Director
|
|
|
/s/
Thomas D. Hyde
|
September
7, 2007
|
|
|
Thomas
D. Hyde
|
Director
|
|
|
/s/
Richard D. Kincaid
|
September
7, 2007
|
|
|
Richard
D. Kincaid
|
Director
|
|
|
/s/
John F. Sorte
|
September
7, 2007
|
|
|
John
F. Sorte
|
Director
|
|
|
/s/
William P. Stiritz
|
September
7, 2007
|
|
|
William
P. Stiritz
|
Director
|
EXHIBIT
INDEX
Exhibit
No. Description
of Exhibit
|
|
4.1
|
Vail
Resorts Inc. 1999 Long Term Incentive and Share Award
Plan
|
|
|
4.2
|
Vail
Resorts Inc. Amended and Restated 2002 Long Term Incentive and Share
Award
Plan
|
|
|
5.1
|
Opinion
of Hogan & Hartson L.L.P. with respect to the legality of the common
stock registered hereby.
|
|
|
23.1
|
Consent
of PricewaterhouseCoopers LLP, Independent Registered Public Accounting
Firm, with respect to the
Registrant.
|
|
|
23.2
|
Consent
of Hogan & Hartson L.L.P. (contained in its opinion filed herewith as
Exhibit 5.1).
|
|
|
24.1
|
Power
of Attorney (included on the signature page to this registration
statement).
|
Exhibit
4.1
VAIL
RESORTS, INC.
1999
LONG TERM INCENTIVE AND SHARE AWARD PLAN
1. Purposes.
--------
The
purposes of the 1999 Long Term Incentive and Share Award Plan are to advance
the
interests of Vail Resorts, Inc. and its shareholders by providing a means to
attract, retain, and motivate employees, consultants and directors of the
Company upon whose judgment, initiative and efforts the continued success,
growth and development of the Company is dependent.
2. Definitions.
-----------
For
purposes of the Plan, the following terms shall be defined as set
forth
below:
(a)
"Affiliate" means any entity other than the Company and its Subsidiaries that
is
designated by the Board or the Committee as a participating employer under
the
Plan, provided that the Company directly or indirectly owns at least 20% of
the
combined voting power of all classes of stock of such entity or at least 20%
of
the ownership interests in such entity.
(b)
"Award" means any Option, SAR, Restricted Share Unit, Performance Share,
Performance Unit, Dividend Equivalent, or Other Share-Based Award granted to
an
Eligible Person under the Plan.
(c)
"Award Agreement" means any written agreement, contract, or other instrument
or
document evidencing an Award.
(d)
"Beneficiary" means the person, persons, trust or trusts which have been
designated by such Eligible Person in his or her most recent written beneficiary
designation filed with the Company to receive the benefits specified under
this
Plan upon the death of the Eligible Person, or, if there is no designated
Beneficiary or surviving designated Beneficiary, then the person, persons,
trust
or trusts entitled by will or the laws of descent and distribution to receive
such benefits.
(e)
"Board" means the Board of Directors of the Company.
(f)
"Code" means the Internal Revenue Code of 1986, as amended from time to time.
References to any provision of the Code shall be deemed to include successor
provisions thereto and regulations thereunder.
(g)
"Committee" means the Compensation Committee of the Board or a subcommittee
thereof, or such other Board committee (which may include the entire Board)
as
may be designated by the Board to administer the Plan, or if the Board so
designates, the entire Board.
(h)
"Company" means Vail Resorts, Inc., a corporation organized under the laws
of
Delaware, or any successor corporation.
(i)
"Director" means a member of the Board who is not an employee of the Company,
a
Subsidiary or an Affiliate.
(j)
"Dividend Equivalent" means a right, granted under Section 5(g), to receive
cash, Shares, or other property equal in value to dividends paid with respect
to
a specified number of Shares. Dividend Equivalents may be awarded on a
free-standing basis or in connection with another Award, and may be paid
currently or on a deferred basis.
(k)
"Eligible Person" means (i) an employee or consultant of the Company, a
Subsidiary or an Affiliate, including any director who is an employee, or (ii)
a
Director.
(l)
"Exchange Act" means the Securities Exchange Act of 1934, as amended from time
to time. References to any provision of the Exchange Act shall be deemed to
include successor provisions thereto and regulations thereunder.
(m)
"Fair Market Value" means, with respect to Shares or other property, the fair
market value of such Shares or other property determined by such methods or
procedures as shall be established from time to time by the Committee. If the
Shares are listed on any established stock exchange or a national market system,
unless otherwise determined by the Committee in good faith, the Fair Market
Value of Shares shall mean the mean between the high and low selling prices
per
Share on the immediately preceding date (or, if the Shares
were not traded on that day, the next preceding day that the Shares were traded)
on the principal exchange on which the Shares are traded, as such prices are
officially quoted on such exchange.
(n)
"ISO" means any option intended to be and designated as an incentive stock
option within the meaning of Section 422 of the Code.
(o)
"NQSO" means any Option that is not an ISO.
(p)
"Option" means a right, granted under Section 5(b), to purchase
Shares.
(q)
"Other Share-Based Award" means a right, granted under Section 5(h), that
relates to or is valued by reference to Shares.
(r)
"Participant" means an Eligible Person who has been granted an Award under
the
Plan.
(s)
"Performance Share" means a performance share granted under Section
5(f).
(t)
"Performance Unit" means a performance unit granted under Section
5(f).
(u)
"Plan" means this 1999 Long Term Incentive and Share Award Plan.
(v)
"Restricted Shares" means an Award of Shares under Section 5(d) that may be
subject to certain restrictions and to a risk of forfeiture.
(w)
"Restricted Share Unit" means a right, granted under Section 5(e), to receive
Shares or cash at the end of a specified deferral period.
(x)
"Rule 16b-3" means Rule 16b-3, as from time to time in effect and applicable
to
the Plan and Participants, promulgated by the Securities and Exchange Commission
under Section 16 of the Exchange Act.
(y)
"SAR" or "Share Appreciation Right" means the right, granted under Section
5(c),
to be paid an amount measured by the difference between the exercise price
of
the right and the Fair Market Value of Shares on the date of exercise of the
right, with payment to be made in cash, Shares, or property as specified in
the
Award or determined by the Committee.
(z)
"Shares" means common stock, $.01 par value per share, of the
Company.
(aa) "Subsidiary" means any corporation (other than the Company) in an unbroken
chain of corporations beginning with the Company if each of the corporations
(other than the last corporation in the unbroken chain) owns shares possessing
50% or more of the total combined voting power of all classes of stock in one
of
the other corporations in the chain.
3. Administration.
--------------
(a)
Authority of the Committee. The Plan shall be administered by the Committee,
and
the Committee shall have full and final authority to take the following actions,
in each case subject to and consistent with the provisions of the
Plan:
(i) to
select Eligible Persons to whom Awards may be granted;
(ii)
to designate Affiliates;
(iii)
to determine the type or types of Awards to be granted to each Eligible
Person;
(iv)
to determine the type and number of Awards to be granted, the number of Shares
to which an Award may relate, the terms and conditions of any Award granted
under the Plan (including, but not limited to, any exercise price, grant price,
or purchase price, and any bases for adjusting such exercise, grant or purchase
price, any restriction or condition, any schedule for lapse of restrictions
or
conditions relating to transferability or forfeiture, exercisability, or
settlement of an Award, and waiver or accelerations thereof, and waivers of
performance conditions relating to an Award, based in each case on such
considerations as the Committee shall determine), and all other matters to
be
determined in connection with an Award;
(v)
to determine whether, to what extent, and under what circumstances an Award
may
be settled, or the exercise price of an Award may be paid, in cash, Shares,
other Awards, or other property, or an Award may be canceled, forfeited,
exchanged, or surrendered;
(vi)
to determine whether, to what extent, and under what circumstances cash, Shares,
other Awards, or other property payable with respect to an Award will be
deferred either automatically, at the election of the Committee, or at the
election of the Eligible Person;
(vii)
to prescribe the form of each Award Agreement, which need not be identical
for
each Eligible Person;
(viii)
to adopt, amend, suspend, waive, and rescind such rules and regulations and
appoint such agents as the Committee may deem necessary or advisable to
administer the Plan;
(ix)
to correct any defect or supply any omission or reconcile any inconsistency
in
the Plan and to construe and interpret the Plan and any Award, rules and
regulations, Award Agreement, or other instrument hereunder;
(x)
to accelerate the exercisability or vesting of all or any portion
of
any
Award
or to extend the period during which an Award is exercisable; and
(xi)
to make all other decisions and determinations as may be required under the
terms of the Plan or as the Committee may deem necessary or advisable for the
administration of the Plan.
(b)
Manner of Exercise of Committee Authority. The Committee shall have sole
discretion in exercising its authority under the Plan. Any action of the
Committee with respect to the Plan shall be final, conclusive, and binding
on
all persons, including the Company, Subsidiaries, Affiliates, Eligible Persons,
any person claiming any rights under the Plan from or through any Eligible
Person, and shareholders. The express grant of any specific power to
the
Committee,
and the taking of any action by the Committee, shall not be construed as
limiting any power or authority of the Committee. The Committee may delegate
to
other members of the Board or officers or managers of the Company or any
Subsidiary or Affiliate the authority, subject to such terms as the Committee
shall determine, to perform administrative functions and, with respect to Awards
granted to persons not subject to Section 16 of the Exchange Act, to perform
such other functions as the Committee may determine, to the extent permitted
under Rule 16b-3 (if applicable) and applicable law.
(c)
Limitation of Liability. Each member of the Committee shall be entitled to,
in
good faith, rely or act upon any report or other information furnished to him
or
her by any officer or other employee of the Company or any Subsidiary or
Affiliate, the Company's independent certified public accountants, or other
professional retained by the Company to assist in the administration of the
Plan. No member of the Committee, nor any officer or employee of the Company
acting on behalf of the Committee, shall be personally liable for any action,
determination, or interpretation taken or made in good faith with respect to
the
Plan, and all members of the Committee and any officer or employee of the
Company acting on their behalf shall, to the extent permitted by law, be fully
indemnified and protected by the Company with respect to any such action,
determination, or interpretation.
(d)
Limitation on Committee's Discretion. Anything in this Plan to the
contrary
notwithstanding, in the case of any Award which is intended to qualify as
"performance-based compensation" within the meaning of Section 162(m)(4)(C)of
the Code, if the Award Agreement so provides, the Committee shall have no
discretion to increase the amount of compensation payable under the Award to
the
extent such an increase would cause the Award to lose its qualification as
such
performance-based compensation.
4. Shares
Subject to the Plan.
--------------------------
(a)
Subject to adjustment as provided in Section 4(c) hereof, the total number
of
Shares reserved for issuance in connection with Awards under the Plan shall
be
2,500,000. No Award may be granted if the number of Shares to which such Award
relates, when added to the number of Shares previously issued under the Plan,
exceeds the number of Shares reserved under the preceding sentence. If any
Awards are forfeited, canceled, terminated, exchanged or surrendered or such
Award is settled in cash or otherwise terminates without a distribution of
Shares to the Participant, any Shares counted against the number of Shares
reserved and available under the Plan with respect to such Award shall, to
the
extent of any such forfeiture, settlement, termination, cancellation, exchange
or surrender, again be available for Awards under the Plan. Upon the exercise
of
any Award granted in tandem with any other Awards, such related Awards shall
be
canceled to the extent of the number of Shares as to which the Award is
exercised.
(b)
Subject to adjustment as provided in Section 4(c) hereof, the maximum number
of
Shares (i) with respect to which Options or SARs may be granted during a
calendar year to any Eligible Person under this Plan shall be 1,000,000 Shares,
and (ii) with respect to Performance Shares, Performance Units, Restricted
Shares or Restricted Share Units intended to qualify as performance-based
compensation within the meaning of Section 162(m)(4)(C) of the Code shall be
the
equivalent of 200,000 Shares during a calendar year to any Eligible Person
under
this Plan.
(c)
In the event that the Committee shall determine that any dividend in Shares,
recapitalization, Share split, reverse split, reorganization, merger,
consolidation, spin-off, combination, repurchase, or share exchange, or other
similar corporate transaction or event, affects the Shares such that an
adjustment is appropriate in order to prevent dilution or enlargement of the
rights of Eligible Persons under the Plan, then the Committee shall make such
equitable changes or adjustments as it deems appropriate and, in such manner
as
it may deem equitable, adjust any or all of (i) the number and kind of shares
which may thereafter be issued under the Plan, (ii) the number and kind of
shares, other securities or other consideration issued or issuable in respect
of
outstanding Awards, and (iii) the exercise price, grant price, or purchase
price
relating to any Award; provided, however, in each case that, with respect to
ISOs, such adjustment shall be made in accordance with Section 424(a) of the
Code, unless the Committee determines otherwise. In addition, the Committee
is
authorized to make adjustments in the terms and conditions of, and the criteria
and performance objectives included in, Awards in recognition of unusual or
non-recurring events (including, without limitation, events described in the
preceding sentence) affecting the Company or any Subsidiary or Affiliate or
the
financial statements of the Company or any Subsidiary or Affiliate, or in
response to changes in applicable laws, regulations, or accounting principles;
provided, however, that, if an Award Agreement specifically so provides, the
Committee shall not have discretion to increase the amount of compensation
payable under the Award to the extent such an increase would cause the Award
to
lose its qualification as performance-based compensation for purposes of Section
162(m)(4)(C) of the Code and the regulations thereunder.
(d)
Any Shares distributed pursuant to an Award may consist, in whole or in part,
of
authorized and unissued Shares or treasury Shares including Shares acquired
by
purchase in the open market or in private transactions.
5. Specific
Terms of Awards.
------------------------
(a)
General. Awards may be granted on the terms and conditions set forth in this
Section 5. In addition, the Committee may impose on any Award or the exercise
thereof, at the date of grant or thereafter (subject to Section 7(d)), such
additional terms and conditions, not inconsistent with the provisions of the
Plan, as the Committee shall determine, including terms regarding forfeiture
of
Awards or continued exercisability of Awards in the event of termination of
service by the Eligible Person.
(b)
Options. The Committee is authorized to grant Options, which may be NQSOs or
ISOs, to Eligible Persons on the following terms and conditions:
(i)
Exercise Price. The exercise price per Share purchasable under an Option shall
be determined by the Committee, and the Committee may, without limitation,
set
an exercise price that is based upon achievement of performance criteria if
deemed appropriate by the Committee.
(ii)
Option Term. The term of each Option shall be determined by the
Committee.
(iii)
Time and Method of Exercise. The Committee shall determine at the date of grant
or thereafter the time or times at which an Option may be exercised in whole
or
in part (including, without limitation, upon achievement of performance criteria
if deemed appropriate by the Committee), the methods by which such exercise
price may be paid or deemed to be paid (including, without limitation,
broker-assisted exercise arrangements), the form of such payment (including,
without limitation, cash, Shares, notes or other property), and the methods
by
which Shares will be delivered or deemed to be delivered to Eligible
Persons.
(iv)
ISOs. The terms of any ISO granted under the Plan shall comply in all respects
with the provisions of Section 422 of the Code, including but not limited to
the
requirement that the ISO shall be granted within ten years from the earlier
of
the date of adoption or shareholder approval of the Plan. ISOs may only be
granted to employees of the Company or a Subsidiary.
(c)
SARs. The Committee is authorized to grant SARs (Share Appreciation Rights)
to
Eligible Persons on the following terms and conditions:
(i)
Right to Payment. An SAR shall confer on the Eligible Person to whom it is
granted a right to receive with respect to each Share subject thereto, upon
exercise thereof, the excess of (1) the Fair Market Value of one Share on the
date of exercise (or, if the Committee shall so determine in the case of any
such right, the Fair Market Value of one Share at any time during a specified
period before or after the date of exercise) over (2) the exercise price of
the
SAR as determined by the Committee as of the date of grant of the SAR (which,
in
the case of an SAR granted in tandem with an Option, shall be equal to the
exercise price of the underlying Option).
(ii)
Other Terms. The Committee shall determine, at the time of grant or thereafter,
the time or times at which an SAR may be exercised in whole or in part, the
method of exercise, method of settlement, form of consideration payable in
settlement, method by which Shares will be delivered or deemed to be delivered
to Eligible Persons, whether or not an SAR shall be in tandem with any other
Award, and any other terms and conditions of any SAR. Unless the Committee
determines otherwise, an SAR (1) granted in tandem with an NQSO may be granted
at the time of grant of the related NQSO or at any time thereafter and (2)
granted in tandem with an ISO may only be granted at the time of grant of the
related ISO.
(d)
Restricted Shares. The Committee is authorized to grant Restricted
Shares
to
Eligible Persons on the following terms and conditions:
(i)
Issuance and Restrictions. Restricted Shares shall be subject to such
restrictions on transferability and other restrictions, if any, as the Committee
may impose at the date of grant or thereafter, which restrictions may lapse
separately or in combination at such times, under such circumstances (including,
without limitation, upon achievement of performance criteria if deemed
appropriate by the Committee), in such installments, or otherwise, as the
Committee may determine. Except to the extent restricted under the Award
Agreement relating to the Restricted Shares, an Eligible Person granted
Restricted Shares shall have all of the rights of a shareholder including,
without limitation, the right to vote Restricted Shares and the right to receive
dividends thereon. If the lapse of restrictions is conditioned on the
achievement of performance criteria, the Committee shall select the criterion
or
criteria from the list of criteria set forth in Section 5(f)(i). The Committee
must certify in writing prior to the lapse of restrictions conditioned on
achievement of performance criteria that such performance criteria were in
fact
satisfied.
(ii)
Forfeiture. Except as otherwise determined by the Committee, at the date of
grant or thereafter, upon termination of service during the applicable
restriction period, Restricted Shares and any accrued but unpaid dividends
or
Dividend Equivalents that are at that time subject to restrictions shall be
forfeited; provided, however, that the Committee may provide, by rule or
regulation or in any Award Agreement, or may determine in any individual case,
that restrictions or forfeiture conditions relating to Restricted Shares will
be
waived in whole or in part in the event of terminations resulting from specified
causes, and the Committee may in other cases waive in whole or in part
the
forfeiture
of Restricted Shares.
(iii)
Certificates for Shares. Restricted Shares granted under the Plan may be
evidenced in such manner as the Committee shall determine. If certificates
representing Restricted Shares are registered in the name of the Eligible
Person, such certificates shall bear an appropriate legend referring to the
terms, conditions, and restrictions applicable to such Restricted Shares, and
the Company shall retain physical possession of the certificate.
(iv)
Dividends. Dividends paid on Restricted Shares shall be either paid at the
dividend payment date, or deferred for payment to such date as determined by
the
Committee, in cash or in unrestricted Shares having a Fair Market Value equal
to
the amount of such dividends. Shares distributed in connection with a Share
split or dividend in Shares, and other property distributed as a dividend,
shall
be subject to restrictions and a risk of forfeiture to the same extent as the
Restricted Shares with respect to which such Shares or other property have
been
distributed.
(e)
Restricted Share Units. The Committee is authorized to grant Restricted Share
Units to Eligible Persons, subject to the following terms and
conditions:
(i)
Award and Restrictions. Delivery of Shares or cash, as the case may be, will
occur upon expiration of the deferral period specified for Restricted Share
Units by the Committee (or, if permitted by the Committee, as elected by the
Eligible Person). In addition, Restricted Share Units shall be subject to such
restrictions as the Committee may impose, if any (including, without limitation,
the achievement of performance criteria if deemed appropriate by the Committee),
at the date of grant or thereafter, which restrictions may lapse at the
expiration of the deferral period or at earlier or later specified times,
separately or in combination, in installments or otherwise, as the Committee
may
determine. If the lapse of restrictions is conditioned on the achievement of
performance criteria, the Committee shall select the criterion or criteria
from
the list of criteria set forth in Section 5(f)(i). The Committee must certify
in
writing prior to the lapse of restrictions conditioned on the achievement of
performance criteria that such performance criteria were in fact
satisfied.
(ii)
Forfeiture. Except as otherwise determined by the Committee at date of grant
or
thereafter, upon termination of service (as determined under criteria
established by the Committee) during the applicable deferral period or portion
thereof to which forfeiture conditions apply (as provided in the Award Agreement
evidencing the Restricted Share Units), or upon failure to satisfy any other
conditions precedent to the delivery of Shares or cash to which such Restricted
Share Units relate, all Restricted Share Units that are at that time subject
to
deferral or restriction shall be forfeited; provided, however, that the
Committee may provide, by rule or regulation or in any Award Agreement, or
may
determine in any individual case, that restrictions or forfeiture conditions
relating to Restricted Share Units will be waived in whole or in part in the
event of termination resulting from specified causes, and the Committee may
in
other cases waive in whole or in part the forfeiture of Restricted Share
Units.
(f)
Performance Shares and Performance Units. The Committee is authorized to grant
Performance Shares or Performance Units or both to Eligible Persons on the
following terms and conditions:
(i)
Performance Period. The Committee shall determine a performance period (the
"Performance Period") of one or more years and shall determine the performance
objectives for grants of Performance Shares and Performance Units. Performance
objectives may vary from Eligible Person to Eligible Person and shall be based
upon one or more of the following performance criteria as the Committee may
deem
appropriate: appreciation in value of the Shares, total shareholder return,
earnings per share, operating income, net income, pro forma net income, return
on equity, return on designated assets, return on capital, economic value added,
earnings, revenues, expenses, operating profit margin, operating cash flow,
net
profit margin. The performance objectives may be determined by reference to
the
performance of the Company, or of a Subsidiary or Affiliate, or of a division
or
unit of any of the foregoing. Performance Periods may overlap and Eligible
Persons may participate simultaneously with respect to Performance Shares and
Performance Units for which different Performance Periods are
prescribed.
(ii)
Award Value. At the beginning of a Performance Period, the Committee shall
determine for each Eligible Person or group of Eligible Persons with respect
to
that Performance Period the range of number of Shares, if any, in the case
of
Performance Shares, and the range of dollar values, if any, in the case of
Performance Units, which may be fixed or may vary in accordance with such
performance or other criteria specified by the Committee, which shall be paid
to
an Eligible Person as an Award if the relevant measure of Company performance
for the Performance Period is met. The Committee must certify in writing that
the applicable performance criteria were satisfied prior to payment under any
Performance Shares or Performance Units.
(iii)
Significant Events. If during the course of a Performance Period there shall
occur significant events as determined by the Committee which the Committee
expects to have a substantial effect on a performance objective during such
period, the Committee may revise such objective; provided, however, that, if
an
Award Agreement so provides, the Committee shall not have any discretion to
increase the amount of compensation payable under the Award to the extent such
an increase would cause the Award to lose its qualification as performance-based
compensation for purposes of Section 162(m)(4)(C) of the Code and the
regulations thereunder.
(iv)
Forfeiture. Except as otherwise determined by the Committee, at the date of
grant or thereafter, upon termination of service during the applicable
Performance Period, Performance Shares and Performance Units for which the
Performance Period was prescribed shall be forfeited; provided, however, that
the Committee may provide, by rule or regulation or in any Award Agreement,
or
may determine in an individual case, that restrictions or forfeiture conditions
relating to Performance Shares and Performance Units will be waived in whole
or
in part in the event of terminations resulting from specified causes, and the
Committee may in other cases waive in whole or in part the forfeiture of
Performance Shares and Performance Units.
(v)
Payment. Each Performance Share or Performance Unit may be paid in whole Shares,
or cash, or a combination of Shares and cash either as a lump sum payment or
in
installments, all as the Committee shall determine, at the time of grant of
the
Performance Share or Performance Unit or otherwise, commencing as soon as
practicable after the end of the relevant Performance Period. The Committee
must
certify in writing prior to the payment of any Performance Share or Performance
Unit that the performance objectives and any other material terms were in fact
satisfied.
(g)
Dividend Equivalents. The Committee is authorized to grant Dividend Equivalents
to Eligible Persons. The Committee may provide, at the date of grant or
thereafter, that Dividend Equivalents shall be paid or distributed when accrued
or shall be deemed to have been reinvested in additional Shares, or other
investment vehicles as the Committee may specify, provided that Dividend
Equivalents (other than freestanding Dividend Equivalents) shall be subject
to
all conditions and restrictions of the underlying Awards to which they
relate.
(h)
Other Share-Based Awards. The Committee is authorized, subject to limitations
under applicable law, to grant to Eligible Persons such other Awards that may
be
denominated or payable in, valued in whole or in part by reference to, or
otherwise based on, or related to, Shares, as deemed by the Committee to be
consistent with the purposes of the Plan, including, without limitation,
unrestricted shares awarded purely as a "bonus" and not subject to any
restrictions or conditions, other rights convertible or exchangeable into
Shares, purchase rights for Shares, Awards with value and payment contingent
upon performance of the Company or any other factors designated by the
Committee, and Awards valued by reference to the performance of specified
Subsidiaries or Affiliates. The Committee shall determine the terms and
conditions of such Awards at date of grant or thereafter. Shares delivered
pursuant to an Award in the nature of a purchase right granted under this
Section 5(h) shall be purchased for such consideration, paid for at such times,
by such methods, and in such forms, including, without limitation, cash, Shares,
notes or other property, as the Committee shall determine. Cash awards, as
an
element of or supplement to any other Award under the Plan, shall also be
authorized pursuant to this Section 5(h).
6. Certain
Provisions Applicable to Awards.
---------------------------------------
(a)
Stand-Alone, Additional, Tandem and Substitute Awards. Awards granted under
the
Plan may, in the discretion of the Committee, be granted to Eligible Persons
either alone or in addition to, in tandem with, or in exchange or substitution
for, any other Award granted under the Plan or any award granted under any
other
plan or agreement of the Company, any Subsidiary or Affiliate, or any business
entity to be acquired by the Company or a Subsidiary or Affiliate, or any other
right of an Eligible Person to receive payment from the Company or any
Subsidiary or Affiliate. Awards may be granted in addition to or in tandem
with
such other Awards or awards, and may be granted either as of the same time
as or
a different time from the grant of such other Awards or awards. The per Share
exercise price of any Option, grant price of any SAR, or purchase price of
any
other Award conferring a right to purchase Shares which is granted, in
connection with the substitution of awards granted under any other plan or
agreement of the Company or any Subsidiary or Affiliate or any business entity
to be acquired by the Company or any Subsidiary or Affiliate, shall be
determined by the Committee, in its discretion.
(b)
Terms of Awards. The term of each Award granted to an Eligible Person shall
be
for such period as may be determined by the Committee; provided, however, that
in no event shall the term of any ISO or an SAR granted in tandem therewith
exceed a period of ten years from the date of its grant (or such shorter period
as may be applicable under Section 422 of the Code).
(c)
Form of Payment Under Awards. Subject to the terms of the Plan and any
applicable Award Agreement, payments to be made by the Company or a Subsidiary
or Affiliate upon the grant, maturation, or exercise of an Award may be made
in
such forms as the Committee shall determine at the date of grant or thereafter,
including, without limitation, cash, Shares, or other property, and may be
made
in a single payment or transfer, in installments, or on a deferred basis. The
Committee may make rules relating to installment or deferred payments with
respect to Awards, including the rate of interest to be credited with respect
to
such payments.
(d)
Nontransferability. Unless otherwise set forth by the Committee in an Award
Agreement, Awards (except for vested shares) shall not be transferable by an
Eligible Person except by will or the laws of descent and distribution (except
pursuant to a Beneficiary designation) and shall be exercisable during the
lifetime of an Eligible Person only by such Eligible Person or his guardian
or
legal representative. An Eligible Person's rights under the Plan may not be
pledged, mortgaged, hypothecated, or otherwise encumbered, and shall not be
subject to claims of the Eligible Person's creditors.
7. General
Provisions.
------------------
(a)
Compliance with Legal and Trading Requirements. The Plan, the granting and
exercising of Awards thereunder, and the other obligations of the Company under
the Plan and any Award Agreement, shall be subject to all applicable federal
and
state laws, rules and regulations, and to such approvals by any regulatory
or
governmental agency as may be required. The Company, in its discretion, may
postpone the issuance or delivery of Shares under any Award until completion
of
such stock exchange or market system listing or registration or qualification
of
such Shares or other required action under any state or federal law, rule or
regulation as the Company may consider appropriate, and may require any
Participant to make such representations and furnish such information as it
may
consider appropriate in connection with the issuance or delivery of Shares
in
compliance with applicable laws, rules and regulations. No provisions of the
Plan shall be interpreted or construed to obligate the Company to register
any
Shares under federal or state law.
(b)
No Right to Continued Employment or Service. Neither the Plan nor any action
taken thereunder shall be construed as giving any employee, consultant or
director the right to be retained in the employ or service of the Company or
any
of its Subsidiaries or Affiliates, nor shall it interfere in any way with the
right of the Company or any of its Subsidiaries or Affiliates to terminate
any
employee's, consultant's or director's employment or service at any
time.
(c)
Taxes. The Company or any Subsidiary or Affiliate is authorized to withhold
from
any Award granted, any payment relating to an Award under the Plan, including
from a distribution of Shares, or any payroll or other payment to an Eligible
Person, amounts of withholding and other taxes due in connection with any
transaction involving an Award, and to take such other action as the Committee
may deem advisable to enable the Company and Eligible Persons to satisfy
obligations for the payment of withholding taxes and other tax obligations
relating to any Award. This authority shall include authority to withhold or
receive Shares or other property and to make cash payments in respect thereof
in
satisfaction of an Eligible Person's tax obligations.
(d)
Changes to the Plan and Awards. The Board may amend, alter, suspend,
discontinue, or terminate the Plan or the Committee's authority to grant Awards
under the Plan without the consent of shareholders of the Company or
Participants, except that any such amendment, alteration, suspension,
discontinuation, or termination shall be subject to the approval of the
Company's shareholders to the extent such shareholder approval is required
under
Section 422 of the Code; provided, however, that, without the consent of an
affected Participant, no amendment, alteration, suspension, discontinuation,
or
termination of the Plan may materially and adversely affect the rights of such
Participant under any Award theretofore granted to him or her. The Committee
may
waive any conditions or rights under, amend any terms of, or amend, alter,
suspend, discontinue or terminate, any Award theretofore granted, prospectively
or retrospectively; provided, however, that, without the consent of a
Participant, no amendment, alteration, suspension, discontinuation or
termination of any Award may materially and adversely affect the rights of
such
Participant under any Award theretofore granted to him or her.
(e)
No Rights to Awards; No Shareholder Rights. No Eligible Person or employee
shall
have any claim to be granted any Award under the Plan, and there is no
obligation for uniformity of treatment of Eligible Persons and employees. No
Award shall confer on any Eligible Person any of the rights of a shareholder
of
the Company unless and until Shares are duly issued or transferred to the
Eligible Person in accordance with the terms of the Award.
(f)
Unfunded Status of Awards. The Plan is intended to constitute an "unfunded"
plan
for incentive compensation. With respect to any payments not yet made to a
Participant pursuant to an Award, nothing contained in the Plan or any Award
shall give any such Participant any rights that are greater than those of a
general creditor of the Company; provided, however, that the Committee may
authorize the creation of trusts or make other arrangements to meet the
Company's obligations under the Plan to deliver cash, Shares, other Awards,
or
other property pursuant to any Award, which trusts or other arrangements shall
be consistent with the "unfunded" status of the Plan unless the Committee
otherwise determines with the consent of each affected Participant.
(g)
Nonexclusivity of the Plan. Neither the adoption of the Plan by the Board nor
its submission to the shareholders of the Company for approval shall be
construed as creating any limitations on the power of the Board to adopt such
other incentive arrangements as it may deem desirable, including, without
limitation, the granting of options and other awards otherwise than under the
Plan, and such arrangements may be either applicable generally or only in
specific cases.
(h)
Not Compensation for Benefit Plans. No Award payable under this Plan shall
be
deemed salary or compensation for the purpose of computing benefits under any
benefit plan or other arrangement of the Company for the benefit of its
employees, consultants or directors unless the Company shall determine
otherwise.
(i)
No Fractional Shares. No fractional Shares shall be issued or delivered pursuant
to the Plan or any Award. The Committee shall determine whether cash, other
Awards, or other property shall be issued or paid in lieu of such fractional
Shares or whether such fractional Shares or any rights thereto shall be
forfeited or otherwise eliminated.
(j)
Governing Law. The validity, construction, and effect of the Plan, any rules
and
regulations relating to the Plan, and any Award Agreement shall be determined
in
accordance with the laws of Colorado without giving effect to principles of
conflict of laws.
(k)
Effective Date; Plan Termination. The Plan shall become effective as of
September 14, 1999 (the "Effective Date"). The Plan shall terminate as to future
awards on the date which is ten (10) years after the Effective
Date.
(l)
Titles and Headings. The titles and headings of the sections in the Plan are
for
convenience of reference only. In the event of any conflict, the text of the
Plan, rather than such titles or headings, shall
control.
Exhibit
4.2
VAIL
RESORTS, INC. AMENDED AND RESTATED
2002
LONG TERM INCENTIVE AND SHARE AWARD PLAN
1. Purposes.
The
purposes of the Amended and Restated 2002 Long Term Incentive and Share Award
Plan are to advance the interests of Vail Resorts, Inc. and its shareholders
by
providing a means to attract, retain, and motivate employees, consultants and
directors of the Company upon whose judgment, initiative and efforts the
continued success, growth and development of the Company is
dependent.
2. Definitions.
For
purposes of the Plan, the following terms shall be defined as set forth
below:
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a.
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“Affiliate”
means any entity other than the Company and its Subsidiaries that
is
designated by the Board or the Committee as a participating employer
under
the Plan; provided, however, that the Company directly or indirectly
owns
at least 20% of the combined voting power of all classes of stock
of such
entity or at least 20% of the ownership interests in such
entity.
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b.
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“Award”
means any Option, SAR, Restricted Share, Restricted Share Unit,
Performance Share, Performance Unit, Performance Cash Award, Dividend
Equivalent, or Other Share-Based Award granted to an Eligible Person
under
the Plan.
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c.
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“Award
Agreement” means any written agreement, contract, or other instrument or
document evidencing an Award.
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d.
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“Beneficiary”
means the person, persons, trust or trusts which have been designated
by
an Eligible Person in his or her most recent written beneficiary
designation filed with the Company to receive the benefits specified
under
this Plan upon the death of the Eligible Person, or, if there is
no
designated Beneficiary or surviving designated Beneficiary, then
the
person, persons, trust or trusts entitled by will or the laws of
descent
and distribution to receive such
benefits.
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e.
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“Board”
means the Board of Directors of the
Company.
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f.
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“Code”
means the Internal Revenue Code of 1986, as amended from time to
time.
References to any provision of the Code shall be deemed to include
successor provisions thereto and regulations
thereunder.
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g.
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“Committee”
means the Compensation Committee of the Board or a subcommittee thereof,
or such other Board committee (or if the Board so designates, the
entire
Board) as may be designated by the Board to administer the Plan;
provided,
however, that, unless otherwise determined by the Board, the Committee
shall consist of two or more directors of the Company, each of whom
is a
“non-employee director” within the meaning of Rule 16b-3 under the
Exchange Act, to the extent applicable, and each of whom is an “outside
director” within the meaning of Section 162(m) of the Code, to the
extent applicable; provided, further, that the mere fact that the
Committee shall fail to qualify under either of the foregoing requirements
shall not invalidate any Award made by the Committee which Award
is
otherwise validly made under the
Plan.
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h.
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“Company”
means Vail Resorts, Inc., a corporation organized under the laws
of
Delaware, or any successor
corporation.
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i.
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“Director”
means a member of the Board who is not an employee of the Company,
a
Subsidiary or an Affiliate.
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j.
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“Dividend
Equivalent” means a right, granted under Section 5(g), to receive
cash, Shares, or other property equal in value to dividends paid
with
respect to a specified number of Shares.
Dividend
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Equivalents
may be awarded on a free-standing basis or in connection with another
Award, and may be paid currently or on a deferred
basis.
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k.
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“Effective
Date” means November, 6, 2006, the date the amendment and restatement of
the Plan is approved by the Board.
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l.
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“Eligible
Person” means (i) an employee or consultant of the Company, a
Subsidiary or an Affiliate, including any director who is an employee,
or
(ii) a Director. Notwithstanding any provisions of this Plan to the
contrary, an Award may be granted to an employee or consultant, in
connection with his or her hiring or retention prior to the date
the
employee or consultant first performs services for the Company, a
Subsidiary or an Affiliate; provided, however, that any such Award
shall
not become vested prior to the date the employee or consultant first
performs such services.
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m.
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“Exchange
Act” means the Securities Exchange Act of 1934, as amended from time to
time. References to any provision of the Exchange Act shall be deemed
to
include successor provisions thereto and regulations
thereunder.
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n.
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“Fair
Market Value” means, with respect to Shares or other property, the fair
market value of such Shares or other property determined by such
methods
or procedures as shall be established from time to time by the Committee.
If the Shares are listed on any established stock exchange or a national
market system, unless otherwise determined by the Committee in good
faith,
the Fair Market Value of Shares shall mean the closing price per
Share on
the date of grant or such other determination date (or, if the Shares
were
not traded on that day, the next preceding day that the Shares were
traded) on the principal exchange or market system on which the Shares
are
traded (if there is more than one such exchange or market the Committee
shall determine the appropriate exchange or market), as such prices
are
officially quoted on such exchange or
market.
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o.
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“ISO”
means any option intended to be and designated as an incentive stock
option within the meaning of Section 422 of the
Code.
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p.
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“NQSO”
means any Option that is not an
ISO.
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q.
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“Option”
means a right granted under Section 5(b), to purchase
Shares.
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r.
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“Other
Share-Based Award” means a right, granted under Section 5(h), that
relates to or is valued by reference to
Shares.
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s.
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“Participant”
means an Eligible Person who has been granted an Award under the
Plan.
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“Performance
Cash Award” means a performance cash award granted under
Section 5(f).
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t.
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“Performance
Share” means a performance share granted under
Section 5(f).
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u.
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“Performance
Unit” means a performance unit granted under
Section 5(f).
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v.
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“Plan”
means this Amended and Restated 2002 Long Term Incentive and Share
Award
Plan.
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w.
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“Restricted
Shares” means an Award of Shares under Section 5(d) that may be
subject to certain restrictions and to a risk of
forfeiture.
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x.
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“Restricted
Share Unit” means a right, granted under Section 5(e), to receive
Shares or cash at the end of a specified deferral
period.
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y.
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“Rule
16b-3” means Rule 16b-3, as from time to time in effect and applicable to
the Plan and Participants, promulgated by the Securities and Exchange
Commission under Section 16 of the Exchange
Act.
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z.
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“SAR”
or “Share Appreciation Right” means the right, granted under
Section 5(c), to be paid an amount measured by the difference between
the exercise price of the right and the Fair Market Value of Shares
on the
date of exercise of the right, with payment to be made in cash, Shares,
or
property as specified in the Award or determined by the
Committee.
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aa.
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“Shares”
means common stock, $.01 par value per share, of the
Company.
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bb.
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“Subsidiary”
means any corporation (other than the Company) in an unbroken chain
of
corporations beginning with the Company if each of the corporations
(other
than the last corporation in the unbroken chain) owns shares possessing
50% or more of the total combined voting power of all classes of
stock in
one of the other corporations in the
chain.
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3. Administration.
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a.
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Authority
of the Committee. The Plan shall be
administered by the Committee, and the Committee shall have full
and final
authority to take the following actions, in each case subject to
and
consistent with the provisions of the
Plan:
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i.
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to
select Eligible Persons to whom Awards may be
granted;
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ii.
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to
designate Affiliates;
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iii.
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to
determine the type or types of Awards to be granted to each Eligible
Person;
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iv.
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to
determine the type and number of Awards to be granted, the number
of
Shares to which an Award may relate, the terms and conditions of
any Award
granted under the Plan (including, but not limited to, any exercise
price,
grant price, or purchase price, and any bases for adjusting such
exercise,
grant or purchase price, any restriction or condition, any schedule
for
lapse of restrictions or conditions relating to transferability or
forfeiture, exercisability, or settlement of an Award, and waiver
or
accelerations thereof, and waivers of performance conditions relating
to
an Award, based in each case on such considerations as the Committee
shall
determine), and all other matters to be determined in connection
with an
Award;
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v.
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to
determine whether, to what extent, and under what circumstances an
Award
may be settled, or the exercise price of an Award may be paid, in
cash,
Shares, other Awards, or other property, or an Award may be canceled,
forfeited, exchanged, or
surrendered;
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vi.
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to
determine whether, to what extent, and under what circumstances cash,
Shares, other Awards, or other property payable with respect to an
Award
will be deferred either automatically, at the election of the Committee,
or at the election of the Eligible
Person;
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vii.
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to
prescribe the form of each Award Agreement, which need not be identical
for each Eligible Person;
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viii.
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to
adopt, amend, suspend, waive, and rescind such rules and regulations
and
appoint such agents as the Committee may deem necessary or advisable
to
administer the Plan;
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ix.
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to
correct any defect or supply any omission or reconcile any inconsistency
in the Plan and to construe and interpret the Plan and any Award,
rules
and regulations, Award Agreement, or other instrument
hereunder;
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x.
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to
accelerate the exercisability or vesting of all or any portion of
any
Award or to extend the period during which an Award is exercisable;
and
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xi.
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to
make all other decisions and determinations as may be required under
the
terms of the Plan or as the Committee may deem necessary or advisable
for
the administration of the Plan.
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b.
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Manner
of Exercise of Committee Authority. The
Committee shall have sole discretion in exercising its authority
under the
Plan. Any action of the Committee with respect to the Plan shall
be final,
conclusive, and binding on all persons, including the Company,
Subsidiaries, Affiliates, Eligible Persons, any person claiming any
rights
under the Plan from or through any Eligible Person, and shareholders.
The
express grant of any specific power to the Committee, and the taking
of
any action by the Committee, shall not be construed as limiting any
power
or authority of the Committee. The Committee may delegate to other
members
of the Board or officers or managers of the Company or
any
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Subsidiary
or Affiliate the authority, subject to such terms as the Committee
shall
determine, to perform administrative functions and, with respect
to Awards
granted to persons not subject to Section 16 of the Exchange Act, to
perform such other functions as the Committee may determine, to the
extent
permitted under Rule 16b-3 (if applicable) and applicable
law.
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c.
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Limitation
of Liability. Each member of the Committee
shall be entitled to, in good faith, rely or act upon any report
or other
information furnished to him or her by any officer or other employee
of
the Company or any Subsidiary or Affiliate, the Company’s independent
certified public accountants, or other professional retained by the
Company to assist in the administration of the Plan. No member of
the
Committee, and no officer or employee of the Company acting on behalf
of
the Committee, shall be personally liable for any action, determination,
or interpretation taken or made in good faith with respect to the
Plan,
and all members of the Committee and any officer or employee of the
Company acting on their behalf shall, to the extent permitted by
law, be
fully indemnified and protected by the Company with respect to any
such
action, determination, or
interpretation.
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d.
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Limitation
on Committee’s Discretion. Anything in this
Plan to the contrary notwithstanding, in the case of any Award which
is
intended to qualify as “performance-based compensation” within the meaning
of Section 162(m)(4)(C) of the Code, if the Award Agreement so
provides, the Committee shall have no discretion to increase the
amount of
compensation payable under the Award to the extent such an increase
would
cause the Award to lose its qualification as such performance-based
compensation.
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e.
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No
Option or SAR Repricing Without Shareholder
Approval. Except as provided in the first
sentence of Section 4(d) hereof relating to certain antidilution
adjustments, unless the approval of shareholders of the Company is
obtained, Options and SARs issued under the Plan shall not be amended
to
lower their exercise price and Options and SARs issued under the
Plan will
not be exchanged for other Options or SARs with lower exercise
prices.
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4. Shares
Subject to the Plan.
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a.
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Subject
to adjustment as provided in Section 4(d) hereof, the total number of
Shares reserved for issuance in connection with Awards under the
Plan
shall be 5,000,000; provided, however, that such number shall be
increased
by (i) the number of Shares available for issuance under the
Company’s 1999 Long Term Incentive and Share Award Plan as of the
Effective Date and (ii) the number of Shares, if any, that are
subject to awards issued under the Company’s 1999 Long Term Incentive and
Share Award Plan that are forfeited, canceled, terminated or surrendered
on or after the Effective Date. All Shares issuable under the Plan
may be
issued as ISOs. Shares issued or to be issued under the Plan shall
be
authorized but unissued shares or, to the extent permitted by applicable
law, issued shares that have been reacquired by the Company. No Award
may
be granted if the number of Shares to which such Award relates, when
added
to the number of Shares previously issued under the Plan, exceeds
the
number of Shares reserved under the preceding sentence. If any Awards
are
forfeited, canceled, terminated, exchanged or surrendered or such
Award is
settled in cash or otherwise terminates without a distribution of
Shares
to the Participant, any Shares counted against the number of Shares
reserved and available under the Plan with respect to such Award
shall, to
the extent of any such forfeiture, settlement, termination, cancellation,
exchange or surrender, again be available for Awards under the Plan.
Upon
the exercise of any Award granted in tandem with any other Awards,
such
related Awards shall be canceled to the extent of the number of Shares
as
to which the Award is exercised.
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b.
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The
Committee shall have the right to substitute or assume Awards in
connection with mergers, reorganizations, separations, or other
transactions to which Code Section 424(a) applies. The number of
Shares reserved pursuant to Section 4(a) may be increased by the
corresponding number of Awards assumed and, in the case of a substitution,
by the net increase in the number of Shares subject to Awards before
and
after the substitution.
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c.
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Subject
to adjustment as provided in Section 4(d) hereof, the maximum number
of Shares (i) with respect to which Options or SARs may be granted
during a calendar year to any Eligible Person under this Plan shall
be
1,000,000 Shares, and (ii) with respect to Performance Shares,
Performance Units, Restricted Shares or Restricted Share Units intended
to
qualify as performance-based compensation within the meaning of
Section 162(m)(4)(C) of the Code shall be the equivalent of 200,000
Shares during a calendar year to any Eligible Person under this
Plan.
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d.
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In
the event that the Committee shall determine that any dividend in
Shares,
recapitalization, Share split, reverse split, reorganization, merger,
consolidation, spin-off, combination, repurchase, or share exchange,
or
other similar corporate transaction or event, affects the Shares
such that
an adjustment is appropriate in order to prevent dilution or enlargement
of the rights of Eligible Persons under the Plan, then the Committee
shall
make such equitable changes or adjustments as it deems appropriate
and, in
such manner as it may deem equitable, adjust any or all of (i) the
number and kind of shares which may thereafter be issued under the
Plan,
(ii) the number and kind of shares, other securities or other
consideration issued or issuable in respect of outstanding Awards,
and
(iii) the exercise price, grant price, or purchase price relating to
any Award; provided, however, in each case that, with respect to
ISOs,
such adjustment shall be made in accordance with Section 424(a) of
the Code, unless the Committee determines otherwise. In addition,
the
Committee is authorized to make adjustments in the terms and conditions
of, and the criteria and performance objectives included in, Awards
in
recognition of unusual or non-recurring events (including, without
limitation, events described in the preceding sentence) affecting
the
Company or any Subsidiary or Affiliate or the financial statements
of the
Company or any Subsidiary or Affiliate, or in response to changes
in
applicable laws, regulations, or accounting principles; provided,
however,
that, if an Award Agreement specifically so provides, the Committee
shall
not have discretion to increase the amount of compensation payable
under
the Award to the extent such an increase would cause the Award to
lose its
qualification as performance-based compensation for purposes of
Section 162(m)(4)(C) of the Code and the regulations
thereunder.
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e.
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Any
Shares distributed pursuant to an Award may consist, in whole or
in part,
of authorized and unissued Shares or treasury Shares including Shares
acquired by purchase in the open market or in private
transactions.
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5. Specific
Terms of Awards.
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a.
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General. Awards
may be granted on the terms and conditions set forth in this
Section 5. In addition, the Committee may impose on any Award or the
exercise thereof, at the date of grant or thereafter (subject to
Section 7(d)), such additional terms and conditions, not inconsistent
with the provisions of the Plan, as the Committee shall determine,
including terms regarding forfeiture of Awards or continued exercisability
of Awards in the event of termination of service by the Eligible
Person.
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b.
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Options. The
Committee is authorized to grant Options, which may be NQSOs or ISOs,
to
Eligible Persons on the following terms and
conditions:
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i.
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Exercise
Price. The exercise price per Share
purchasable under an Option shall be determined by the Committee;
provided, however, that the exercise price per Share of an Option
shall
not be less than the Fair Market Value of a Share on the date of
grant of
the Option. The Committee may, without limitation, set an exercise
price
that is based upon achievement of performance criteria if deemed
appropriate by the Committee.
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ii.
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Option
Term. The term of each Option shall be
determined by the Committee; provided, however, that such term shall
not
be longer than ten years from the date of grant of the
Option.
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iii.
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Time
and Method of Exercise. The Committee shall
determine at the date of grant or thereafter the time or times at
which an
Option may be exercised in whole or in part (including, without
limitation, upon achievement of performance criteria if deemed appropriate
by the Committee), the methods by which such exercise price may be
paid or
deemed to be paid (including, without
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limitation,
broker-assisted exercise arrangements), the form of such payment
(including, without limitation, cash, Shares, notes or other property),
and the methods by which Shares will be delivered or deemed to be
delivered to Eligible Persons; provided, however, that in no event
may any
portion of the exercise price be paid with Shares acquired either
under an
Award granted pursuant to this Plan, upon exercise of a stock option
granted under another Company plan or as a stock bonus or other stock
award granted under another Company plan unless, in any such case,
the
Shares were acquired and vested more than six months in advance of
the
date of exercise.
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iv.
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ISOs. The
terms of any ISO granted under the Plan shall comply in all respects
with
the provisions of Section 422 of the Code, including but not limited
to the requirement that the ISO shall be granted within ten years
from the
earlier of the date of adoption or shareholder approval of the Plan.
ISOs
may only be granted to employees of the Company or a
Subsidiary.
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c.
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SARs. The
Committee is authorized to grant SARs (Share Appreciation Rights)
to
Eligible Persons on the following terms and
conditions:
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i.
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Right
to Payment. An SAR shall confer on the
Eligible Person to whom it is granted a right to receive with respect
to
each Share subject thereto, upon exercise thereof, the excess of
(1) the Fair Market Value of one Share on the date of exercise (or,
if the Committee shall so determine in the case of any such right,
the
Fair Market Value of one Share at any time during a specified period
before or after the date of exercise) over (2) the exercise price of
the SAR as determined by the Committee as of the date of grant of
the SAR
(which shall not be less than the Fair Market Value per Share on
the date
of grant of the SAR and, in the case of a SAR granted in tandem with
an
Option, shall be equal to the exercise price of the underlying
Option).
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ii.
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Other
Terms. The Committee shall determine, at the
time of grant or thereafter, the time or times at which an SAR may
be
exercised in whole or in part (which shall not be more than ten years
after the date of grant of the SAR), the method of exercise, method
of
settlement, form of consideration payable in settlement, method by
which
Shares will be delivered or deemed to be delivered to Eligible Persons,
whether or not an SAR shall be in tandem with any other Award, and
any
other terms and conditions of any SAR. Unless the Committee determines
otherwise, an SAR (1) granted in tandem with an NQSO may be granted
at the time of grant of the related NQSO or at any time thereafter
and
(2) granted in tandem with an ISO may only be granted at the time of
grant of the related ISO.
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d.
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Restricted
Shares. The Committee is authorized to grant
Restricted Shares to Eligible Persons on the following terms and
conditions:
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i.
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Issuance
and Restrictions. Restricted Shares shall be
subject to such restrictions on transferability and other restrictions,
if
any, as the Committee may impose at the date of grant or thereafter,
which
restrictions may lapse separately or in combination at such times,
under
such circumstances (including, without limitation, upon achievement
of
performance criteria if deemed appropriate by the Committee), in
such
installments, or otherwise, as the Committee may determine. Except
to the
extent restricted under the Award Agreement relating to the Restricted
Shares, an Eligible Person granted Restricted Shares shall have all
of the
rights of a shareholder including, without limitation, the right
to vote
Restricted Shares and the right to receive dividends thereon. If
the lapse
of restrictions is conditioned on the achievement of performance
criteria,
the Committee shall select the criterion or criteria from the list
of
criteria set forth in Section 5(f)(i). The Committee must certify in
writing prior to the lapse of restrictions conditioned on achievement
of
performance criteria that such performance criteria were in fact
satisfied.
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ii.
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Forfeiture. Except
as otherwise determined by the Committee, at the date of grant or
thereafter, upon termination of service during the applicable restriction
period, Restricted Shares and any accrued but unpaid dividends or
Dividend
Equivalents that are at that time subject to restrictions shall be
forfeited; provided, however, that the Committee may provide, by
rule or
regulation or in any Award Agreement, or may determine in any individual
case, that restrictions or
forfeiture
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conditions
relating to Restricted Shares will be waived in whole or in part
in the
event of terminations resulting from specified causes, and the Committee
may in other cases waive in whole or in part the forfeiture of Restricted
Shares.
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iii.
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Certificates
for Shares. Restricted Shares granted under
the Plan may be evidenced in such manner as the Committee shall determine.
If certificates representing Restricted Shares are registered in
the name
of the Eligible Person, such certificates shall bear an appropriate
legend
referring to the terms, conditions, and restrictions applicable to
such
Restricted Shares, and the Company shall retain physical possession
of the
certificate.
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iv.
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Dividends. Dividends
paid on Restricted Shares shall be either paid at the dividend payment
date, or deferred for payment to such date as determined by the Committee,
in cash or in unrestricted Shares having a Fair Market Value equal
to the
amount of such dividends. Shares distributed in connection with a
Share
split or dividend in Shares, and other property distributed as a
dividend,
shall be subject to restrictions and a risk of forfeiture to the
same
extent as the Restricted Shares with respect to which such Shares
or other
property has been distributed.
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e.
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Restricted
Share Units. The Committee is authorized to
grant Restricted Share Units to Eligible Persons, subject to the
following
terms and conditions:
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i.
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Award
and Restrictions. Delivery of Shares or cash,
as the case may be, will occur upon expiration of the deferral period
specified for Restricted Share Units by the Committee (or, if permitted
by
the Committee, as elected by the Eligible Person). In addition, Restricted
Share Units shall be subject to such restrictions as the Committee
may
impose, if any (including, without limitation, the achievement of
performance criteria if deemed appropriate by the Committee), at
the date
of grant or thereafter, which restrictions may lapse at the expiration
of
the deferral period or at earlier or later specified times, separately
or
in combination, in installments or otherwise, as the Committee may
determine. If the lapse of restrictions is conditioned on the achievement
of performance criteria, the Committee shall select the criterion
or
criteria from the list of criteria set forth in Section 5(f)(i). The
Committee must certify in writing prior to the lapse of restrictions
conditioned on the achievement of performance criteria that such
performance criteria were in fact
satisfied.
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ii.
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Forfeiture. Except
as otherwise determined by the Committee at date of grant or thereafter,
upon termination of service (as determined under criteria established
by
the Committee) during the applicable deferral period or portion thereof
to
which forfeiture conditions apply (as provided in the Award Agreement
evidencing the Restricted Share Units), or upon failure to satisfy
any
other conditions precedent to the delivery of Shares or cash to which
such
Restricted Share Units relate, all Restricted Share Units that are
at that
time subject to deferral or restriction shall be forfeited; provided,
however, that the Committee may provide, by rule or regulation or
in any
Award Agreement, or may determine in any individual case, that
restrictions or forfeiture conditions relating to Restricted Share
Units
will be waived in whole or in part in the event of termination resulting
from specified causes, and the Committee may in other cases waive
in whole
or in part the forfeiture of Restricted Share
Units.
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f.
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Performance
Shares, Performance Units and Performance Cash
Awards. The Committee is authorized to grant
Performance Shares, Performance Units, and Performance Cash Awards
to
Eligible Persons on the following terms and
conditions:
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i.
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Performance
Period. The Committee shall determine a
performance period (the “Performance Period”) of one or more years and
shall determine the performance objectives for grants of Performance
Shares, Performance Units and Performance Cash Awards. Performance
objectives may vary from Eligible Person to Eligible Person and shall
be
based upon one or more of the following performance criteria as the
Committee may deem appropriate: appreciation in value of the Shares,
total
shareholder return, earnings per share, operating income, net income,
pretax earnings, pretax earnings before interest, depreciation and
amortization, pro forma net income,
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return
on equity, return on designated assets, return on capital, economic
value
added, earnings, revenues, expenses, operating profit margin, operating
cash flow, net profit margin, free cash flow, cash flow return on
investment, and operating margin. The performance objectives may
be
determined by reference to the performance of the Company, or of
a
Subsidiary or Affiliate, or of a division or unit of any of the foregoing.
Performance Periods may overlap and Eligible Persons may participate
simultaneously with respect to Performance Shares, Performance Units
and
Performance Cash Awards for which different Performance Periods are
prescribed.
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ii.
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Award
Value. At the beginning of a Performance
Period, the Committee shall determine for each Eligible Person or
group of
Eligible Persons with respect to that Performance Period (A) the
range of number of Shares, if any, in the case of Performance Shares,
(B) the range of dollar values, if any, in the case of Performance
Units, or (C) the range of cash awards in the case of Performance
Cash Awards which may be fixed or may vary in accordance with such
performance or other criteria specified by the Committee, which shall
be
paid to an Eligible Person as an Award if the relevant measure of
Company
performance for the Performance Period is met. The Committee must
certify
in writing that the applicable performance criteria were satisfied
prior
to payment under any Performance Shares, Performance Units or Performance
Cash Awards.
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iii.
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Significant
Events. If during the course of a Performance
Period there shall occur significant events as determined by the
Committee
which the Committee expects to have a substantial effect on a performance
objective during such period, the Committee may revise such objective;
provided, however, that, if an Award Agreement so provides, the Committee
shall not have any discretion to increase the amount of compensation
payable under the Award to the extent such an increase would cause
the
Award to lose its qualification as performance-based compensation
for
purposes of Section 162(m)(4)(C) of the Code and the regulations
thereunder.
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iv.
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Forfeiture. Except
as otherwise determined by the Committee, at the date of grant or
thereafter, upon termination of service during the applicable Performance
Period, Performance Shares, Performance Units and Performance Cash
Awards
for which the Performance Period was prescribed shall be forfeited;
provided, however, that the Committee may provide, by rule or regulation
or in any Award Agreement, or may determine in an individual case,
that
restrictions or forfeiture conditions relating to Performance Shares,
Performance Units and Performance Cash Awards will be waived in whole
or
in part in the event of terminations resulting from specified causes,
and
the Committee may in other cases waive in whole or in part the forfeiture
of Performance Shares, Performance Units and Performance Cash
Awards.
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v.
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Payment. Each
Performance Share or Performance Unit may be paid in whole Shares,
or
cash, or a combination of Shares and cash either as a lump sum payment
or
in installments, all as the Committee shall determine, at the time
of
grant of the Performance Share or Performance Unit or otherwise,
commencing as soon as practicable after the end of the relevant
Performance Period. Each Performance Cash Award shall be paid in
cash,
commencing as soon as practicable after the end of the relevant
Performance Period. The Committee must certify in writing prior to
the
payment of any Performance Share, Performance Unit or Performance
Cash
Awards that the performance objectives and any other material terms
were
in fact satisfied.
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g.
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Dividend
Equivalents. The Committee is authorized to
grant Dividend Equivalents to Eligible Persons. The Committee may
provide,
at the date of grant or thereafter, that Dividend Equivalents shall
be
paid or distributed when accrued or shall be deemed to have been
reinvested in additional Shares, or other investment vehicles as
the
Committee may specify; provided, however, that Dividend Equivalents
(other
than freestanding Dividend Equivalents) shall be subject to all conditions
and restrictions of the underlying Awards to which they
relate.
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h.
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Other
Share-Based Awards. The Committee is
authorized, subject to limitations under applicable law, to grant
to
Eligible Persons such other Awards that may be denominated or payable
in,
valued in whole or in part by reference to, or otherwise based on,
or
related to, Shares, as deemed by
the
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Committee
to be consistent with the purposes of the Plan, including, without
limitation, unrestricted shares awarded purely as a “bonus” and not
subject to any restrictions or conditions, other rights convertible
or
exchangeable into Shares, purchase rights for Shares, Awards with
value
and payment contingent upon performance of the Company or any other
factors designated by the Committee, and Awards valued by reference
to the
performance of specified Subsidiaries or Affiliates. The Committee
shall
determine the terms and conditions of such Awards at date of grant
or
thereafter. Shares delivered pursuant to an Award in the nature of
a
purchase right granted under this Section 5(h) shall be purchased for
such consideration, paid for at such times, by such methods, and
in such
forms, including, without limitation, cash, Shares, notes or other
property, as the Committee shall determine. Cash awards, as an element
of
or supplement to any other Award under the Plan, shall also be authorized
pursuant to this Section 5(h).
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6. Certain
Provisions Applicable to Awards.
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a.
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Stand-Alone,
Additional, Tandem and Substitute
Awards. Awards granted under the Plan may, in
the discretion of the Committee, be granted to Eligible Persons either
alone or in addition to, in tandem with, or in exchange or substitution
for, any other Award granted under the Plan or any award granted
under any
other plan or agreement of the Company, any Subsidiary or Affiliate,
or
any business entity to be acquired by the Company or a Subsidiary
or
Affiliate, or any other right of an Eligible Person to receive payment
from the Company or any Subsidiary or Affiliate. Awards may be granted
in
addition to or in tandem with such other Awards or awards, and may
be
granted either as of the same time as or a different time from the
grant
of such other Awards or awards. Subject to the provisions of
Section 3(e) hereof prohibiting Option and SAR repricing without
shareholder approval, the per Share exercise price of any Option,
grant
price of any SAR, or purchase price of any other Award conferring
a right
to purchase Shares which is granted, in connection with the substitution
of awards granted under any other plan or agreement of the Company
or any
Subsidiary or Affiliate or any business entity to be acquired by
the
Company or any Subsidiary or Affiliate, shall be determined by the
Committee, in its discretion.
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b.
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Terms
of Awards. The term of each Award granted to
an Eligible Person shall be for such period as may be determined
by the
Committee; provided, however, that in no event shall the term of
any
Option or an SAR granted in tandem therewith exceed a period of ten
years
from the date of its grant (or such shorter period as may be applicable
under Section 422 of the
Code).
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c.
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Form
of Payment Under Awards. Subject to the terms
of the Plan and any applicable Award Agreement, payments to be made
by the
Company or a Subsidiary or Affiliate upon the grant, maturation,
or
exercise of an Award may be made in such forms as the Committee shall
determine at the date of grant or thereafter, including, without
limitation, cash, Shares, or other property, and may be made in a
single
payment or transfer, in installments, or on a deferred basis. The
Committee may make rules relating to installment or deferred payments
with
respect to Awards, including the rate of interest to be credited
with
respect to such payments, and the Committee may require deferral
of
payment under an Award if, in the sole judgment of the Committee,
it may
be necessary in order to avoid nondeductibility of the payment under
Section 162(m) of the Code.
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d.
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Nontransferability. Unless
otherwise set forth by the Committee in an Award Agreement, Awards
(except
for vested shares) shall not be transferable by an Eligible Person
except
by will or the laws of descent and distribution (except pursuant
to a
Beneficiary designation) and shall be exercisable during the lifetime
of
an Eligible Person only by such Eligible Person or his guardian or
legal
representative. An Eligible Person’s rights under the Plan may not be
pledged, mortgaged, hypothecated, or otherwise encumbered, and shall
not
be subject to claims of the Eligible Person’s
creditors.
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e.
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Noncompetition. The
Committee may, by way of the Award Agreements or otherwise, establish
such
other terms, conditions, restrictions and/or limitations, if any,
of any
Award, provided they are not inconsistent with the Plan, including,
without limitation, the requirement that the Participant not engage
in
competition with the Company.
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7. General
Provisions.
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a.
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Compliance
with Legal and Trading Requirements. The Plan,
the granting and exercising of Awards thereunder, and the other
obligations of the Company under the Plan and any Award Agreement,
shall
be subject to all applicable federal and state laws, rules and
regulations, and to such approvals by any regulatory or governmental
agency as may be required. The Company, in its discretion, may postpone
the issuance or delivery of Shares under any Award until completion
of
such stock exchange or market system listing or registration or
qualification of such Shares or other required action under any state
or
federal law, rule or regulation as the Company may consider appropriate,
and may require any Participant to make such representations and
furnish
such information as it may consider appropriate in connection with
the
issuance or delivery of Shares in compliance with applicable laws,
rules
and regulations. No provisions of the Plan shall be interpreted or
construed to obligate the Company to register any Shares under federal
or
state law. The Shares issued under the Plan may be subject to such
other
restrictions on transfer as determined by the
Committee.
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b.
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No
Right to Continued Employment or
Service. Neither the Plan nor any action taken
thereunder shall be construed as giving any employee, consultant
or
director the right to be retained in the employ or service of the
Company
or any of its Subsidiaries or Affiliates, nor shall it interfere
in any
way with the right of the Company or any of its Subsidiaries or Affiliates
to terminate any employee’s, consultant’s or director’s employment or
service at any time.
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c.
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Taxes. The
Company or any Subsidiary or Affiliate is authorized to withhold
from any
Award granted, any payment relating to an Award under the Plan, including
from a distribution of Shares, or any payroll or other payment to
an
Eligible Person, amounts of withholding and other taxes due in connection
with any transaction involving an Award, and to take such other action
as
the Committee may deem advisable to enable the Company and Eligible
Persons to satisfy obligations for the payment of withholding taxes
and
other tax obligations relating to any Award. This authority shall
include
authority to withhold or receive Shares or other property and to
make cash
payments in respect thereof in satisfaction of an Eligible Person’s tax
obligations.
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d.
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Changes
to the Plan and Awards. The Board may amend,
alter, suspend, discontinue, or terminate the Plan or the Committee’s
authority to grant Awards under the Plan without the consent of
shareholders of the Company or Participants, except that any such
amendment or alteration as it applies to ISOs shall be subject to
the
approval of the Company’s shareholders to the extent such shareholder
approval is required under Section 422 of the Code; provided,
however, that, without the consent of an affected Participant, no
amendment, alteration, suspension, discontinuation, or termination
of the
Plan may materially and adversely affect the rights of such Participant
under any Award theretofore granted to him or her. The Committee
may waive
any conditions or rights under, amend any terms of, or amend, alter,
suspend, discontinue or terminate, any Award theretofore granted,
prospectively or retrospectively; provided, however, that, without
the
consent of a Participant, no amendment, alteration, suspension,
discontinuation or termination of any Award may materially and, adversely
affect the rights of such Participant under any Award theretofore
granted
to him or her.
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e.
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No
Rights to Awards; No Shareholder Rights. No
Eligible Person or employee shall have any claim to be granted any
Award
under the Plan, and there is no obligation for uniformity of treatment
of
Eligible Persons and employees. No Award shall confer on any Eligible
Person any of the rights of a shareholder of the Company unless and
until
Shares are duly issued or transferred to the Eligible Person in accordance
with the terms of the Award.
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f.
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Unfunded
Status of Awards. The Plan is intended to
constitute an “unfunded” plan for incentive compensation. With respect to
any payments not yet made to a Participant pursuant to an Award,
nothing
contained in the Plan or any Award shall give any such Participant
any
rights that are greater than those of a general creditor of the Company;
provided, however, that the Committee may authorize the creation
of trusts
or make other arrangements to meet the Company’s obligations under the
Plan to deliver cash, Shares, other Awards, or other property pursuant
to
any Award, which trusts or other
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arrangements
shall be consistent with the “unfunded” status of the Plan unless the
Committee otherwise determines with the consent of each affected
Participant.
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g.
|
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Nonexclusivity
of the Plan. Neither the adoption of the Plan
by the Board nor its submission to the shareholders of the Company
for
approval shall be construed as creating any limitations on the power
of
the Board to adopt such other incentive arrangements as it may deem
desirable, including, without limitation, the granting of options
and
other awards otherwise than under the Plan, and such arrangements
may be
either applicable generally or only in specific
cases.
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h.
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Not
Compensation for Benefit Plans. No Award
payable under this Plan shall be deemed salary or compensation for
the
purpose of computing benefits under any benefit plan or other arrangement
of the Company for the benefit of its employees, consultants or directors
unless the Company shall determine
otherwise.
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i.
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No
Fractional Shares. No fractional Shares shall
be issued or delivered pursuant to the Plan or any Award. The Committee
shall determine whether cash, other Awards, or other property shall
be
issued or paid in lieu of such fractional Shares or whether such
fractional Shares or any rights thereto shall be forfeited or otherwise
eliminated.
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j.
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Governing
Law. The validity, construction, and effect of
the Plan, any rules and regulations relating to the Plan, and any
Award
Agreement shall be determined in accordance with the laws of Colorado
without giving effect to principles of conflict of
laws.
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k.
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Effective
Date; Plan Termination. The amendment and
restatement of the Plan shall become effective as of November 6,
2006, subject to approval by the shareholders of the Company. The
Plan
shall terminate as to future awards on the date which is ten
(10) years after the Effective
Date.
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l.
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Titles
and Headings. The titles and headings of the
sections in the Plan are for convenience of reference only. In the
event
of any conflict, the text of the Plan, rather than such titles or
headings, shall control.
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Exhibit
5.1
September
7, 2007
Board
of
Directors
Vail
Resorts, Inc.
390
Interlocken Crescent, Suite 1000
Broomfield,
Colorado 80021
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Re:
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Registration
Statement on Form S-8
|
Gentlemen:
We
are
acting as counsel to Vail Resorts, Inc., a Delaware corporation (the “Company”),
in connection with its registration statement on Form S-8 (the “Registration
Statement”), filed with the Securities and Exchange Commission, of 4,191,429
shares (the “Shares”) of the Company’s common stock, par value $0.01 per share,
issuable under the terms of the Vail Resorts, Inc. 1999 Long Term Incentive
and
Share Award Plan (the “1999 Plan”) and the Vail Resorts, Inc. Amended and
Restated 2002 Long Term Incentive and Share Award Plan (the “2002 Plan” an
together with 1999 Plan, the “Plans”). This opinion letter is furnished to you
at your request to enable you to fulfill the requirements of Item 601(b)(5)
of
Regulation S-K, 17 C.F.R. § 229.601(b)(5), in connection with the
Registration Statement.
For
purposes of this opinion letter, we have examined copies of the following
documents:
1. An
executed copy of the Registration Statement.
2. A
copy of the Plans, as certified by the Secretary of the Company on the date
hereof as being complete, accurate and in effect.
3. The
Certificate of Incorporation of the Company, as amended, as certified by the
Secretary of the State of the State of Delaware on September 7, 2007 and by
the
Secretary of the Company on the date hereof as being complete, accurate, and
in
effect.
4. The
Bylaws of the Company, as amended, as certified by the Secretary of the Company
on the date hereof as being complete, accurate, and in effect.
5. Resolutions
of the Board of Directors of the Company adopted (i) at a meeting held on
September 14, 1999, as certified by the Secretary of the Company on the date
hereof as being complete, accurate, and in effect, relating to the approval
of
the 1999 Plan and the issuance and the sale of the Shares and arrangements
in
connection therewith; and (ii) by unanimous written consent as of November
6,
2006, as certified by the Secretary of the Company on the date hereof as being
complete, accurate, and in effect, relating to the approval of the 2002 Plan
and
the issuance and the sale of the Shares and arrangements in connection
therewith.
6. Minutes
of the Annual Meetings of Stockholders of the Company held on December 14,
1999
with respect to the 1999 Plan and January 4, 2007 with respect to the 2002
Plan,
as certified by the Secretary of the Company on the date hereof as being
complete, accurate and in effect, relating to the approval of the
Plans.
In
our
examination of the aforesaid documents, we have assumed the genuineness of
all
signatures, the legal capacity of all natural persons, the accuracy and
completeness of all documents submitted to us, the authenticity of all original
documents, and the conformity to authentic original documents of all documents
submitted to us as copies (including telecopies). This opinion letter
is given, and all statements herein are made, in the context of the
foregoing.
This
opinion letter is based as to
matters of law solely on the Delaware General Corporation Law, as
amended. We express no opinion herein as to any other laws, statutes,
ordinances, rules, or regulations. As used herein, the term “Delaware
General Corporation Law, as amended” includes the statutory provisions contained
therein, all applicable provisions of the Delaware Constitution and reported
judicial decisions interpreting these laws.
Based
upon, subject to and limited by the foregoing, we are of the opinion that
following (i) effectiveness of the Registration Statement, (ii) issuance of
the
Shares pursuant to the terms of the Plans, and (iii) receipt by the Company
of the consideration for the Shares specified in the resolutions adopted by
the
Board of Directors authorizing the issuance thereof, the Shares will be validly
issued, fully paid, and nonassessable.
This
opinion letter has been prepared for your use in connection with the
Registration Statement and speaks as of the date hereof. We assume no
obligation to advise you of any changes in the foregoing subsequent to the
delivery of this opinion letter.
We
hereby
consent to the filing of this opinion letter as Exhibit 5.1 to the Registration
Statement. In giving this consent, we do not thereby admit that we
are an “expert” within the meaning of the Securities Act of 1933, as
amended.
Very
truly yours,
/s/
HOGAN
& HARTSON L.L.P.
HOGAN
& HARTSON L.L.P.
Exhibit
23.1
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
hereby
consent to the incorporation by reference in this Registration Statement on
Form S-8 of our report dated October 4, 2006, except with respect to our
opinion on the consolidated financial statements insofar as it relates to the
restatement discussed in Note 22, as to which the date is August 24, 2007
relating to the financial statements, financial statement schedule, management’s
assessment of the effectiveness of internal control over financial reporting
and
the effectiveness of internal control over financial reporting, which appears
in Vail Resorts, Inc.'s Annual
Report on Form 10-K/A for the year ended July 31, 2006.
/s/
PricewaterhouseCoopers LLP
Denver,
Colorado
September
4, 2007