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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 27, 2004
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VAIL RESORTS, INC.
(Exact name of registrant as specified in its charter)
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Delaware 1-9614 51-0291762
(State or other jurisdiction (Commission File Number) (I.R.S. Employer Identification No.)
of incorporation)
137 Benchmark Road, Avon, Colorado 81620
(Address of principal executive offices)
Registrant's telephone number, including area code: (970) 845-2500
Not Applicable
(Former name or former address, if changed since last report)
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Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
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[ ] Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425)
[ ] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17
CFR 240.14a-12)
[ ] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[ ] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01. Entry into a Material Definitive Agreement.
Item 5.02. Departure of Directors or Principal Officers; Election of
Directors; Appointment of Principal Officers.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in
Fiscal Year.
On September 28, 2004, Vail Resorts, Inc. (the "Company") and Apollo Ski
Partners, LP ("Apollo") entered into a Conversion and Registration Rights
Agreement (the "Agreement"). Pursuant to the Agreement, Apollo converted all of
its Class A common stock into the Company's common shares. Apollo has informed
the Company that it plans to distribute the shares of common stock it received
upon conversion to its limited partners by October 31, 2004 and the Company has
agreed pursuant to the Agreement to file a shelf registration statement for
approximately two million shares of common stock for the benefit of certain of
the Apollo distributees.
As a result of the above Agreement, the Company no longer has any Class A
common stock outstanding and will therefore only have one class of directors
going forward. Previously, the Class A common stock elected the Class I
directors and the common stock elected the Class II directors.
In connection with the Apollo distribution, the Company's Board of
Directors has agreed to reduce the size of the Board to seven from its current
size of twelve. In connection with such reduction in the Board size, and not
because of any disagreement with the Company's operations, policies or
practices, Frank J. Biondi, Jr., John R. Hauge, Thomas H. Lee, William L. Mack
and James S. Tisch have resigned from the Board effective September 27, 2004.
In addition, in order to effect the reduction in the size of the Board, the
Board amended and restated its bylaws to provide that the Board shall consist of
no fewer than 5 directors and no more than 10 directors. Previously, the bylaws
provided that the Board shall consist of no fewer than 10 directors and no more
than 20 directors. The amended and restated bylaws also eliminates the
requirement that the Board consists of two-thirds Class I directors and
one-third Class II directors.
Item 9.01. Financial Statements and Exhibits.
(c) Exhibits. The following exhibits are filed herewith:
Exhibit No. Description
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3.1 Amended and Restated Bylaws
10.1 Conversion and Registration Rights Agreement between
Vail Resorts, Inc. and Apollo Ski Partners, L.P. dated
as of September 28, 2004.
99.1 Press Release dated September 30, 2004
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned hereunto duly authorized.
Date: September 30, 2004
VAIL RESORTS, INC.
(Registrant)
By: /s/ Jeffrey W. Jones
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Name: Jeffrey W. Jones
Title: Senior Vice President and
Chief Financial Officer
Exhibit 3.1
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AMENDED AND RESTATED BYLAWS
OF
VAIL RESORTS, INC.
(The "Corporation")
(As Adopted and in Effect as of September 28, 2004)
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VAIL RESORTS, INC.
AMENDED AND RESTATED BYLAWS
TABLE OF CONTENTS
STOCKHOLDERS' MEETINGS
1. Time and Place of Meetings...................................1
2. Annual Meeting...............................................1
3. Special Meetings.............................................1
4. Notice of Meetings...........................................1
5. Inspectors...................................................1
6. Quorum.......................................................2
7. Voting.......................................................2
8. Order of Business............................................3
9. Consent of Stockholders in Lieu of Meeting...................4
DIRECTORS
10. Function.....................................................4
11. Number, Election and Terms...................................4
12. Vacancies and Newly Created Directorships....................4
13. Nominations of Directors; Election...........................5
14. Resignation..................................................6
15. Regular Meetings.............................................6
16. Special Meetings.............................................6
17. Quorum ......................................................6
18. Participation in Meetings by Telephone Conference............6
19. Committees...................................................7
20. Compensation.................................................7
21. Rules .......................................................7
22. Action by Directors Without a Meeting........................7
NOTICES
23. Generally....................................................8
24. Waivers .....................................................8
OFFICERS
25. Generally....................................................8
26. Compensation.................................................8
27. Succession...................................................8
28. Authority and Duties.........................................9
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STOCK
29. Certificates.................................................9
30. Classes of Stock.............................................9
31. Transfers....................................................9
32. Lost, Stolen, or Destroyed Certificates......................9
33. Record Dates................................................10
34. Record Date for Action by Written Consent...................10
35. Inspectors of Written Consent...............................11
36. Effectiveness of Written Consent............................11
INDEMNIFICATION
37. Damages and Expenses........................................11
38. Insurance, Contracts, and Funding...........................12
GENERAL
39. Fiscal Year.................................................12
40. Seal .......................................................12
41. Reliance upon Books, Reports, and Records...................12
42. Time Periods................................................13
43. Interested Directors; Quorum................................13
44. Amendments..................................................13
45. Certain Defined Terms......................................13
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STOCKHOLDERS' MEETINGS
1. Time and Place of Meetings. All meetings of the stockholders for the
election of Directors or for any other purpose will be held at such time and
place, within or without the State of Delaware, as may be designated by the
Board or, in the absence of a designation by the Board, the Chairman, the
President, or the Secretary, and stated in the notice of meeting. The Board may
postpone and reschedule any previously scheduled annual or special meeting of
the stockholders.
2. Annual Meeting. An annual meeting of the stockholders shall be held for
the election of Directors, at which meeting the stockholders will elect the
Directors to succeed those whose terms expire at such meeting and will transact
such other business as may properly be brought before such meeting. The date of
the annual meeting shall be fixed by the Board.
3. Special Meetings. Special meetings of the stockholders for any purpose
or purposes may be called only by (a) the Chairman or (b) the Secretary within
ten (10) calendar days after receipt of the written request of a majority of the
Board. For purposes of these Amended and Restated Bylaws (the "Bylaws"), the
"Board" means all of the members of the Board of Directors of the Corporation.
Any such request by a majority of the Board must be sent to the Chairman and the
Secretary and must state the purpose or purposes of the proposed meeting. At a
special meeting of stockholders, only such business may be conducted or
considered as (i) has been specified in the notice of the meeting (or any
supplement thereto) given by or at the direction of the Chairman or a majority
of the Board or (ii) otherwise is properly brought before the meeting by the
presiding officer of the meeting or by or at the direction of a majority of the
Board.
4. Notice of Meetings. Written notice of every meeting of the stockholders,
stating the place, date, and hour of the meeting and, in the case of a special
meeting, the purpose or purposes for which the meeting is called, will be given
not less than ten (10) calendar days nor more than sixty (60) calendar days
before the date of the meeting to each stockholder of record entitled to vote at
such meeting, except as otherwise provided herein or by law. If mailed, notice
is given when deposited in the United States mail, postage prepaid, directed to
the stockholder at its address as it appears in the records of the Corporation.
When a meeting is adjourned to another place, date or time, written notice need
not be given of the adjourned meeting if the place, date, and time thereof are
announced at the meeting at which the adjournment is taken; provided, however,
that if the adjournment is for more than thirty (30) calendar days, or if after
the adjournment a new record date is fixed for the adjourned meeting, written
notice of the place, date and time of the adjourned meeting must be given in
conformity herewith. At any adjourned meeting, any business may be transacted
which properly could have been transacted at the original meeting.
5. Inspectors. The Board may appoint one or more inspectors of election to
act as judges of the voting and to determine those entitled to vote at any
meeting of the stockholders, or any adjournment
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thereof, in advance of such meeting or any adjournment thereof. The Board may
designate one or more persons as alternate inspectors to replace any inspector
who fails to act. If no inspector or alternate is able to act at a meeting of
stockholders, the presiding officer of the meeting may appoint one or more
substitute inspectors.
6. Quorum. Except as otherwise provided by law or the Restated Certificate
of Incorporation, the holders of a majority of the Common Stock issued and
outstanding and entitled to vote, present in person or represented by proxy,
will constitute a quorum at all meetings of the stockholders for the transaction
of business. If, however, such quorum is not present or represented at any
meeting of the stockholders, the stockholders entitled to vote, present in
person or represented by proxy at such meeting, will have the power to adjourn
the meeting from time to time, without notice other than announcement at the
meeting, until a quorum is present or represented. For purposes of the
foregoing, two or more series of Common Stock shall be considered a single class
if the holders thereof are entitled to vote together as a single class at the
meeting. In the absence of a quorum, the stockholders so present and represented
may, by vote of the holders of a majority of the shares of Common Stock of the
Corporation so present and represented, adjourn the meeting, in accordance with
Bylaw 4, until a quorum is present.
7. Voting. Except as otherwise provided in these Bylaws or the Restated
Certificate of Incorporation or by law, each stockholder will be entitled at
every meeting of the stockholders to one vote for each share of Common Stock
having voting power standing in the name of such stockholder on the books of the
Corporation on the record date for the meeting and such votes may be cast either
in person or by written proxy (with a date not more than ninety (90) calendar
days prior to the date of such meeting). If the Restated Certificate of
Incorporation provides for more or less than one vote for any share, or any
matter, every reference in these Bylaws to a majority or other proportion of the
shares of Common Stock shall refer to such majority or other proportion of the
votes of such shares of Common Stock. Every proxy must be duly executed and
filed with the Secretary. A stockholder may revoke any proxy that is not
irrevocable by attending the meeting and voting in person or by filing an
instrument in writing revoking the proxy or another duly executed proxy bearing
a later date with the Secretary. The vote upon any question brought before a
meeting of the stockholders may be by voice vote, unless otherwise required by
the Restated Certificate of Incorporation or these Bylaws or unless the Chairman
or the holders of a majority of the outstanding shares of Common Stock entitled
to vote thereon present in person or by proxy at such meeting otherwise
determine. Every vote taken by written ballot will be counted by the inspectors
of election. When a quorum is present at any meeting, the affirmative vote of
the holders of a majority of Common Stock present in person or represented by
proxy at the meeting and entitled to vote on the subject matter and which has
actually been voted will be the act of the stockholders, except in the election
of Class 2 Directors or as otherwise provided in these Bylaws, the Restated
Certificate of Incorporation, or by law.
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8. Order of Business.
(a) The Chairman, if any, or, in his or her absence, the Vice
Chairman, if any, or, in his or her absence, the President or, in his or
her absence, such other officer of the Corporation designated by a majority
of the Board, will call meetings of the stockholders to order and will act
as presiding officer thereof. Unless otherwise determined by the Board
prior to the meeting, the presiding officer of the meeting of stockholders
will also determine the order of business and have the authority in his or
her sole discretion to regulate the conduct of any such meeting, including,
without limitation, imposing restrictions on the persons (other than
stockholders of the Corporation or their duly appointed proxies) who may
attend any such stockholders' meeting, ascertaining whether any stockholder
or his proxy may be excluded from any meeting of the stockholders based
upon any determination by the presiding officer, in his or her sole
discretion, that any such person has unduly disrupted or is likely to
disrupt the proceedings thereat, and determining the circumstances in which
any person may make a statement or ask questions at any meeting of the
stockholders.
(b) At an annual meeting of the stockholders, only such business will
be conducted or considered as is properly brought before the meeting. To be
properly brought before an annual meeting, business must be (i) specified
in the notice of meeting (or any supplement thereto) given by or at the
direction of the Board, (ii) otherwise properly brought before the meeting
by the presiding officer or by or at the direction of a majority of the
Board, or (iii) otherwise properly requested to be brought before the
meeting by a stockholder of the Corporation in accordance with Bylaw 8(c).
(c) For business to be properly requested by a stockholder to be
brought before an annual meeting, the stockholder must (i) be a stockholder
of record of the Corporation at the time of the giving of notice for such
annual meeting provided for in these Bylaws, (ii) be entitled to vote at
such meeting, and (iii) have given timely notice thereof in writing to the
Secretary. To be timely, a stockholder's notice must be delivered to or
mailed and received at the principal offices of the Corporation not less
than thirty (30) calendar days prior to the annual meeting; provided,
however, that in the event notice of the date of the annual meeting is not
made at least sixty (60) calendar days prior to the date of the annual
meeting, notice by the stockholder to be timely must be so received not
later than the close of business on the ninth calendar day following the
day on which notice is first made of the date of the annual meeting. A
stockholder's notice to the Secretary must set forth as to each matter the
stockholder proposes to bring before the annual meeting (i) a description
in reasonable detail of the business desired to be brought before the
annual meeting and the reasons for conducting such business at the annual
meeting, (ii) the name and address, as they appear on the Corporation's
books, of the stockholder proposing such business and the beneficial owner,
if any, on whose behalf the proposal is made, (iii) the class and number of
shares of the Corporation that are owned beneficially and of record by the
stockholder proposing such business and by the beneficial owner, if any, on
whose behalf the proposal is made, and (iv) any material interest of such
stockholder proposing such business and the beneficial owner, if any, on
whose behalf the proposal is made in such business. Notwithstanding
anything in these
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Bylaws to the contrary, no business will be conducted at an annual meeting
except in accordance with the procedures set forth herein. The presiding
officer of the annual meeting will, if the facts warrant, determine that
business was not properly brought before the meeting in accordance with the
procedures prescribed herein and, if so determined, so declare to the
meeting, and any such business not properly brought before the meeting will
not be transacted.
9. Consent of Stockholders in Lieu of Meeting. Unless otherwise provided by
the Restated Certificate of Incorporation, any action required by law to be
taken at any annual or special meeting of stockholders of the Corporation or any
action which may be taken at any annual or special meeting of such stockholders
may be taken without a meeting, without prior notice and without a vote, if a
consent in writing, setting forth the action so taken, shall be signed by the
holders of outstanding stock having not less than the minimum number of votes
that would be necessary to authorize or take such action at a meeting at which
all shares entitled to vote thereon were present and voted. Prompt notice of the
taking of the corporate action without a meeting by less than unanimous written
consent shall be given to those stockholders who have not consented in writing.
DIRECTORS
10. Function. Unless otherwise provided by law, these Bylaws or the
Restated Certificate of Incorporation, the business and affairs of the
Corporation will be managed under the direction of the Board. In the event that
a Director is offered, or becomes aware of, any business opportunity in a
capacity other than as a Director of the Corporation, such Director shall have
no duty to disclose such opportunity to other Directors, the Board, or the
Corporation.
11. Number, Election and Terms. The Board shall be comprised of no fewer
than five (5) and no more than ten (10) Directors. Each Director shall serve a
one-year term. Unless provided by the Restated Certificate of Incorporation,
Directors need not be stockholders.
12. Vacancies and Newly Created Directorships. Newly created directorships
resulting from any increase in the number of Directors and any vacancies on the
Board resulting from death, resignation, disqualification, removal, or other
cause will be filled solely by the affirmative vote of a majority of the
remaining Directors then in office, even though less than a quorum of the Board,
or by a sole remaining Director; provided, however, whenever the holders of
Common Stock are entitled to elect one or more Directors by the provisions of
the Restated Certificate of Incorporation, vacancies and newly created
directorship of such class or classes shall be filled by the vote of a majority
of the Directors elected by such class or classes then in office or by the vote
of the sole remaining Director so elected. Any Director elected in accordance
with the preceding sentence will hold office for the remainder of the full term
of the class of Directors in which the new directorship was created or the
vacancy occurred and until such Director's
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successor is elected and qualified. No decrease in the number of Directors
constituting the Board will shorten the term of an incumbent Director.
13. Nominations of Directors; Election.
(a) Other than persons nominated and elected pursuant to Bylaw 12,
only persons who are nominated in accordance with the following procedures
will be eligible for election as Directors of the Corporation.
(b) Nominations of persons for election as Directors of the
Corporation may be made at a meeting of stockholders (i) by or at the
direction of the Board or (ii) by any stockholder who is a stockholder of
record at the time of giving of notice provided for in this Bylaw 13 who is
entitled to vote for the election of such Director at the meeting and who
complies with the procedures set forth in this Bylaw 13; provided, however,
whenever the holders of Common Stock are entitled to elect one or more
Directors by the provisions of the Restated Certificate of Incorporation,
nominations of persons for election as Directors shall be made by Directors
elected by such class or classes or by any stockholder of such class or
classes entitled to vote for such Director. All nominations by stockholders
must be made pursuant to timely notice in proper written form to the
Secretary.
(c) To be timely, a stockholder's notice must be delivered to or
mailed and received at the principal executive offices of the Corporation
not less than thirty (30) calendar days prior to the meeting; provided,
however, that in the event that notice of the date of the meeting is not
made at least sixty (60) calendar days prior to the date of the meeting,
notice by the stockholder to be timely must be so received not later than
the close of business on the ninth calendar day following the day on which
notice is first made of the date of the meeting. To be in proper written
form, such stockholder's notice must set forth or include (i) the name and
address, as they appear on the Corporation's books, of the stockholder
giving the notice and of the beneficial owner, if any, on whose behalf the
nomination is made; (ii) a representation that the stockholder giving the
notice is a stockholder of record of the Corporation entitled to vote at
such meeting and intends to appear in person or by proxy at the meeting for
such Director to nominate the person or persons specified in the notice;
(iii) the class and number of shares of stock of the Corporation owned
beneficially and of record by the stockholder giving the notice and by the
beneficial owner, if any, on whose behalf the nomination is made; (iv) a
description of all arrangements or understandings between or among any of
(A) the stockholder giving the notice, (B) the beneficial owner, if any, on
whose behalf the notice is given, (C) each nominee, and (D) any other
person or persons (naming such person or persons) pursuant to which the
nomination or nominations are to be made by the stockholder giving the
notice; (v) the class of Director, if any, for which nominated, if
applicable; (vi) such other information regarding each nominee proposed by
the stockholder giving the notice as would be required to be included in a
proxy statement filed pursuant to the proxy rules of the Securities and
Exchange Commission had the nominee been nominated, or intended to be
nominated, by the Board; and (vii) the signed consent of each nominee to
serve as a Director of the Corporation if so elected. At the request of the
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Board, any person nominated by the Board for election as a Director must
furnish to the Secretary that information required to be set forth in a
stockholder's notice of nomination which pertains to the nominee. The
presiding officer of the meeting for election of Directors will, if the
facts warrant, determine that a nomination was not made in accordance with
the procedures prescribed by this Bylaw 13, and if so determined, so
declare to the meeting, and the defective nomination will be disregarded.
14. Resignation. Any Director may resign at any time by giving written
notice of resignation to the Chairman or the Secretary, and such resignation
will be effective upon actual receipt by any such person or, if later, as of the
date and time specified in such written notice.
15. Regular Meetings. Regular meetings of the Board may be held immediately
after the annual meeting of the stockholders and at such other time and place
either within or without the State of Delaware as may from time to time be
determined by a majority vote of the Board. Notice of regular meetings of the
Board need not be given.
16. Special Meetings. Special meetings of the Board may be called by the
Chairman, the Vice Chairman, or the President on one day's notice to each
Director by whom such notice is not waived, given either personally or by mail,
telephone, telegram, telex, facsimile, e-mail, or similar medium of
communication, and will be called by the Chairman, Vice Chairman, or the
President in like manner and on like notice on the written request of a majority
of the Directors. Special meetings of the Board may be held at such time and
place either within or without the State of Delaware as is determined by the
Board or specified in the notice of any such meeting.
17. Quorum. Except as provided herein to the contrary, at all meetings of
the Board, a majority of the total number of Directors then in office will
constitute a quorum for the transaction of business. Except for the designation
of committees as hereinafter provided and except for actions required by these
Bylaws or the Restated Certificate of Incorporation to be taken by a majority of
the Board, the act of a majority of the Directors present or voting by written
proxy (with a date not more than thirty (30) calendar days prior to the date of
such meeting) at any meeting at which there is a quorum will be the act of the
Board. If a quorum is not present at any meeting of the Board, the Directors
present thereat may adjourn the meeting from time to time to another place, time
or date, without notice other than announcement at the meeting, until a quorum
is present.
18. Participation in Meetings by Telephone Conference. Members of the Board
or any committee designated by the Board may participate in a meeting of the
Board or any such committee, as the case may be, by means of telephone
conference or similar means by which all persons participating in the meeting
can hear each other, and such participation in a meeting shall constitute
presence in person at the meeting.
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19. Committees.
(a) The Board may designate one or more committees, each such
committee to consist of one or more Directors and each to have such
lawfully delegable powers and duties as the Board may confer.
(b) Each committee of the Board shall serve at the pleasure of the
Board or as may be specified in any resolution from time to time adopted by
the Board. The Board may designate one or more Directors as alternate
members of any such committee, who may replace any absent or disqualified
member at any meeting of such committee. In lieu of such action by the
Board, in the absence or disqualification of any member of a committee of
the Board, the members thereof present at any such meeting of such
committee and not disqualified from voting, whether or not they constitute
a quorum, may unanimously appoint another member of the Board to act at the
meeting in the place of such absent or disqualified member.
(c) Unless otherwise prescribed by the Restated Certificate of
Incorporation, a majority of the members of any committee of the Board
shall constitute a quorum for the transaction of business, and the act of a
majority of the members present or voting by written proxy (with a date not
more than thirty (30) calendar days prior to the date of such meeting) at a
meeting at which there is a quorum will be the act of such committee. Each
committee of the Board may prescribe its own rules for calling and holding
meetings and its method of procedure, subject to these Bylaws and any rules
prescribed by the Board, and will keep a written record of all actions
taken by it.
20. Compensation. The Board may establish the compensation for, and
reimbursement of the expenses of Directors for, membership on the Board or any
committees of the Board, attendance at meetings of the Board or any committees
of the Board, and for other services by Directors to the Corporation or any of
its majority-owned subsidiaries.
21. Rules. The Board may adopt rules and regulations for the conduct of
their meetings and the management of the affairs of the Corporation.
22. Action by Directors Without a Meeting. Unless otherwise provided by the
Restated Certificate of Incorporation, any action required or permitted to be
taken at any meeting of the Board or any committee designated by the Board may
be taken without a meeting if all members of the Board or of such committee
consent thereto in writing, and the writing or writings are filed with the
minutes of proceedings of the Board or such committee.
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NOTICES
23. Generally. Except as otherwise provided by law, whenever under the
provisions of the Restated Certificate of Incorporation or these Bylaws, notice
is required to be given to any Director or stockholder, it will not be construed
to require personal notice, but such notice may be given in writing, by mail,
addressed to such Director or stockholder, at the address of such Director or
stockholder as it appears on the records of the Corporation, with postage
thereon prepaid, and such notice shall be deemed to be given at the time when
the same is deposited in the United States mail. Notice to Directors may also be
given by telephone, telegram, telex, facsimile, e-mail, or similar medium of
communication or as otherwise may be permitted by these Bylaws.
24. Waivers. Whenever notice is required to be given by law or under the
provisions of the Restated Certificate of Incorporation or these Bylaws, a
waiver thereof in writing, signed by the person or persons entitled to such
notice, whether before or after the time of the event for which notice is to be
given, shall be deemed equivalent to such notice. Attendance of a person at a
meeting shall constitute a waiver of notice of such meeting, except when the
person attends a meeting for the express purpose of objecting, at the beginning
of the meeting, to the transaction of any business because the meeting is not
lawfully called or convened.
OFFICERS
25. Generally. The officers of the Corporation will be elected by the
majority vote of the Board and will consist of a Chairman (who, unless specified
otherwise, will also be the Chief Executive Officer), a President, a Secretary,
and a Treasurer. The Board may also choose any or all of the following: one or
more Vice Chairmen, one or more Assistants to the Chairman, one or more Vice
Presidents (who may be given particular designations with respect to authority,
function, or seniority), and such other officers as the Board may from time to
time determine. Any number of offices may be held by the same person. Any of the
offices may be left vacant from time to time as the Board may determine. In the
case of the absence or disability of any officer of the Corporation or for any
other reason deemed sufficient by a majority of the Board, the Board may
delegate the absent or disabled officer's powers or duties to any other officer
or to any Director.
26. Compensation. The compensation of all officers and agents of the
Corporation who are also Directors of the Corporation shall be fixed by the
Board. The Board may fix, or delegate the power to fix, the compensation of
other officers and agents of the Corporation to an officer of the Corporation.
27. Succession. The officers of the Corporation will hold office until
their successors are elected and qualified. Any officer may be removed at any
time by a majority of the Board. Any vacancy occurring in any office of the
Corporation may be filled by a majority of the Board.
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28. Authority and Duties. Each of the officers of the Corporation will have
such authority and will perform such duties as are customarily incident to their
respective offices or as may be specified from time to time by the Board.
STOCK
29. Certificates. Certificates representing shares of stock of the
Corporation will be in such form as is determined by the Board, subject to
applicable legal requirements. Each such certificate will be numbered and its
issuance recorded in the books of the Corporation, and such certificate will
exhibit the holder's name and the number of shares and will be signed by, or in
the name of, the Corporation by the Chairman and the Secretary or an Assistant
Secretary, or the Treasurer or an Assistant Treasurer, and will also be signed
by, or bear the facsimile signature of, a duly authorized officer or agent of
any properly designated transfer agent of the Corporation. Any or all of the
signatures and the seal of the Corporation, if any, upon such certificates may
be facsimiles, engraved, or printed. Such certificates may be issued and
delivered notwithstanding that the person whose facsimile signature appears
thereon may have ceased to be such officer at the time the certificates are
issued and delivered.
30. Classes of Stock. The designations, preferences, and relative
participating, optional, or other special rights of the various classes of stock
or series thereof, and the qualifications, limitations, or restrictions thereof,
will be set forth in full or summarized on the face or back of the certificates
which the Corporation issues to represent its stock, or in lieu thereof, such
certificates will set forth the office of the Corporation from which the holders
of certificates may obtain a copy of such information.
31. Transfers. Upon surrender to the Corporation or the transfer agent of
the Corporation of a certificate for shares duly endorsed or accompanied by
proper evidence of succession, assignment, or authority to transfer, it shall be
the duty of the Corporation to issue, or to cause its transfer agent to issue, a
new certificate to the person entitled thereto, cancel the old certificate, and
record the transaction upon its books.
32. Lost, Stolen, or Destroyed Certificates. The Secretary may direct a new
certificate or certificates to be issued in place of any certificate or
certificates theretofore issued by the Corporation alleged to have been lost,
stolen, or destroyed, upon the making of an affidavit of that fact, satisfactory
to the Secretary, by the person claiming the certificate or certificates to be
lost, stolen, or destroyed. As a condition precedent to the issuance of a new
certificate or certificates, the Secretary may require the owners of such lost,
stolen, or destroyed certificate or certificates to give the Corporation a bond
in such sum and with such surety or sureties as the Secretary may direct as
indemnity against any claims that may be made against the Corporation with
respect to the certificate or certificates alleged to have been lost, stolen, or
destroyed or the issuance of the new certificate or certificates.
9
33. Record Dates.
(a) In order that the Corporation may determine the stockholders
entitled to notice of or to vote at any meeting of stockholders or any
adjournment thereof, the Board may fix a record date, which will not be
more than sixty (60) calendar days before the date of such meeting. If no
record date is fixed by the Board, the record date for determining
stockholders entitled to notice of or to vote at a meeting of stockholders
shall be at the close of business on the calendar day next preceding the
day on which notice is given, or, if notice is waived, at the close of
business on the calendar day next preceding the day on which the meeting is
held. A determination of stockholders of record entitled to notice of or to
vote at a meeting of the stockholders shall apply to any adjournment of the
meeting; provided, however, that the Board may fix a new record date for
the adjourned meeting.
(b) In order that the Corporation may determine the stockholders
entitled to receive payment of any dividend or other distribution or
allotment of any rights or the stockholders entitled to exercise any rights
in respect of any change, conversion, or exchange of stock, or for the
purpose of any other lawful action, the Board may fix a record date, which
record date shall not be more than sixty (60) calendar days prior to such
action. If no record date is fixed, the record date for determining
stockholders for any such purpose shall be at the close of business on the
calendar day on which the Board adopts the resolution relating thereto.
(c) The Corporation shall be entitled to treat the person in whose
name any share of its stock is registered as the owner thereof for all
purposes, and shall not be bound to recognize any equitable or other claim
to, or interest in, such share on the part of any other person, whether or
not the Corporation has notice thereof, except as expressly provided by
applicable law.
34. Record Date for Action by Written Consent. In order that the
Corporation may determine the stockholders entitled to consent to corporate
action in writing without a meeting, the Board may fix a record date, which
record date shall not precede the date upon which the resolution fixing the
record date is adopted by the Board, and which date shall not be more than ten
(10) calendar days after the date upon which the resolution fixing the record
date is adopted by the Board. Any stockholder of record seeking to have the
stockholders authorize or take corporate action by written consent shall, by
written notice to the Secretary, request the Board to fix a record date. The
Board shall promptly, but in all events within ten (10) calendar days after the
date on which such a request is received, adopt a resolution fixing the record
date (unless a record date has previously been fixed by the Board pursuant to
the first sentence of this Bylaw 34). If no record date has been fixed by the
Board pursuant to the first sentence of this Bylaw 34 or otherwise within ten
(10) calendar days of the date on which such a request is received, the record
date for determining stockholders entitled to consent to corporate action in
writing without a meeting, when no prior action by the Board is required by
applicable law, shall be the first date on which a signed written consent
setting forth the action taken or proposed to be taken is delivered to the
Corporation by delivery to its registered office
10
in Delaware, its principal place of business, or to any officer or agent of the
Corporation having custody of the book in which proceedings of meetings of
stockholders are recorded. Delivery shall be by hand or by certified or
registered mail, return receipt requested. If no record date has been fixed by
the Board pursuant to the first sentence of this Bylaw 34, the record date for
determining stockholders entitled to consent to corporate action in writing
without a meeting if prior action by the Board is required by law shall be at
the close of business on the date on which the Board adopts the resolution
taking such prior action.
35. Inspectors of Written Consent. In the event of the delivery, in the
manner provided by Bylaw 34 above, to the Corporation of written consent or
consents to take corporate action and/or any related revocation or revocations,
the Corporation shall engage independent inspectors of elections for the purpose
of performing promptly a ministerial review of the validity of the consents and
revocations. For the purpose of permitting the inspectors to perform such
review, no action by written consent without a meeting shall be effective until
such date as the independent inspectors certify to the Corporation that the
consents delivered to the Corporation in accordance with Bylaw 34 above
represent at least the minimum number of votes that would be necessary to take
the corporate action. Nothing contained in this Bylaw 35 shall in any way be
construed to suggest or imply that the Board or any stockholder shall not be
entitled to contest the validity of any consent or revocation thereof, whether
before or after such certification by the independent inspectors, or to take any
other action (including, without limitation, the commencement, prosecution or
defense of any litigation with respect thereto, and the seeking of injunctive
relief in such litigation).
36. Effectiveness of Written Consent. Every written consent shall bear the
date of signature of each stockholder who signs the consent and no written
consent shall be effective to take the corporate action referred to therein
unless, within sixty (60) calendar days of the earliest dated written consent
received in accordance with Bylaw 34, a written consent or consents signed by a
sufficient number of holders to take action are delivered to the Corporation in
the manner prescribed in Bylaw 34 above.
37. Damages and Expenses.
(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
11
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.
38. Insurance, Contracts, and Funding. The Corporation may purchase and
maintain insurance to protect itself and any Indemnitee against any expenses,
judgments, fines, and amounts paid in settlement or incurred by any Indemnitee
in connection with any proceeding referred to in Bylaw 37 or otherwise, to the
fullest extent permitted by applicable law as then in effect. The Corporation
may enter into contracts with any person entitled to indemnification under Bylaw
37 or otherwise, and may create a trust fund, grant a security interest, or use
other means (including, without limitation, a letter of credit) to ensure the
payment of such amounts as may be necessary to effect indemnification as
provided in Bylaw 37.
GENERAL
39. Fiscal Year. The fiscal year of the Corporation means the period
commencing August 1 of the preceding year and ending on July 31 of such year or
such other date as may be fixed from time to time by the Board.
40. Seal. The Board may adopt a corporate seal and use the same by causing
it or a facsimile thereof to be impressed or affixed or reproduced or otherwise.
41. Reliance upon Books, Reports, and Records. Each Director, each member
of a committee designated by the Board, and each officer of the Corporation
shall, in the performance of his or her duties, be fully protected in relying in
good faith upon the records of the Corporation and upon such information,
opinions, reports, or statements presented to the Corporation by any of the
Corporation's officers or employees, or
12
committees of the Board, or by any other person or entity as to matters the
Director, committee member, or officer believes are within such other person's
or entity's professional or expert competence and who has been selected with
reasonable care by or on behalf of the Corporation.
42. Time Periods. In applying any provision of these Bylaws that requires
that an act be done or not be done a specified number of calendar days prior to
an event or that an act be done during a period of a specified number of
calendar days prior to an event, calendar days will be used unless otherwise
specified, the day of the doing of the act will be excluded and the day of the
event will be included.
43. Interested Directors; Quorum. No contract or transaction between the
Corporation and one or more of its Directors or officers, or between the
Corporation and any other corporation, partnership, association or other
organization in which one or more of its Directors or officers are directors or
officers, or have a financial interest, shall be void or voidable solely for
this reason, or solely because the Director or officer is present at or
participates in the meeting of the Board or committee thereof which authorizes
the contract or transaction, or solely because the votes of such one or more
Directors are counted for such purpose, if: (a) the material facts as to the
relationship to or interest in the contract or transaction of such Director are
disclosed or are known to the Board or the committee, and the Board or committee
in good faith authorizes the contract or transaction by the affirmative votes of
a majority of the disinterested Directors, even though the disinterested
Directors be less than a quorum; or (b) the material facts as to the
relationship to or interest in the contract or transaction of such Director are
disclosed or are known to the stockholders entitled to vote thereon, and the
contract or transaction is specifically approved in good faith by vote of the
stockholders; or (c) the contract or transaction is fair as to the Corporation
as of the time it is authorized, approved or ratified by the Board, a committee
thereof or the stockholders. Common or interested Directors may be counted in
determining the presence of a quorum at a meeting of the Board or of a committee
which authorizes the contract or transaction.
44. Amendments. Except as otherwise provided by law and subject to the
Restated Certificate of Incorporation, these Bylaws may be amended in any
respect or repealed, either (i) at any meeting of stockholders, provided that
any amendment or supplement proposed to be acted upon at any such meeting has
been described or referred to in the notice of such meeting, or (ii) at any
meeting of the Board, provided that no amendment adopted by the Board may vary
or conflict with any amendment adopted by the stockholders.
45. Certain Defined Terms. Terms used herein with initial capital letters
not otherwise defined herein that are defined in the Restated Certificate of
Incorporation of the Corporation are used herein as so defined.
* * * * * * * *
13
================================================================================
Exhibit 10.1
CONVERSION AND REGISTRATION RIGHTS AGREEMENT
between
VAIL RESORTS, INC.
and
APOLLO SKI PARTNERS, L.P.
================================================================================
CONVERSION AND REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of
September 28, 2004, between APOLLO SKI PARTNERS, L.P., a Delaware limited
partnership ("Ski Partners"), and VAIL RESORTS, INC., a Delaware corporation
(the "Company").
W I T N E S S E T H :
--------------------
WHEREAS, Ski Partners owns 6,114,542 shares of Class A common stock, par
value $0.01 per share, of the Company (the "Class A Shares");
WHEREAS, pursuant to Section 4.06(c) of the Restated Certificate of
Incorporation (the "Charter") of the Company, Ski Partners desires to convert
each Class A Share it owns into one share of common stock, par value $0.01 per
share, of the Company (the "Common Shares");
WHEREAS, subsequent to such conversion (i) Ski Partners will transfer the
Common Shares to Apollo Investment Fund, L.P. (the "Partnership"), (ii) the
Partnership will transfer the Common Shares to its partners, including without
limitation, Apollo Advisors, L.P., as General Partner of the Partnership
("Apollo Advisors"), and Apollo Fund Administration Ltd., as Administrative
General Partner of the Partnership ("Apollo Administration") and (iii) Apollo
Advisors will transfer the Common Shares it has received to its partners and
Apollo Administration will transfer the Common Shares it has received to its
shareholders (the partners of the Partnership, the partners of Apollo Advisors
and the shareholders of Apollo Administration to whom the Common Shares are
being transferred are collectively referred to herein as the "Transferees", and
the transfers to all Transferees are collectively referred to herein as the
"Apollo Distribution");
WHEREAS, Ski Partners desires that the Covered Transferees have the benefit
of the registration rights and other rights set forth herein and will act as a
representative of the Transferees with respect to such rights;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
made herein, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and accepted, the parties hereto
agree as follows:
1. Definitions. As used herein, unless the context otherwise requires, the
following terms have the following respective meanings:
"Affiliate" has the meaning set forth in Rule 12b-2 under the Exchange Act
(as in effect on the date of this Agreement), it being understood that any
limited partner of a partnership shall not be an Affiliate of such partnership
solely by virtue of its status as such a limited partner.
"Commission" means the United States Securities and Exchange Commission or
any other federal agency at the time administering the Securities Act.
"Covered Transferees" means the list of Transferees previously disclosed to
the Company and any transferees of such Covered Transferees.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, or
any similar federal statute, and the rules and regulations of the Commission
thereunder, as the same shall be in effect at the time. Reference to a
particular section of, the Securities Exchange Act of 1934, as amended, shall
include reference to the comparable section, if any, of any such subsequent
similar federal statute.
"Person" means any individual, partnership, joint venture, corporation,
trust, unincorporated organization, government or department or agency of a
government.
"Registrable Securities" means the approximate two million Common Shares
distributed to the Covered Transferees in the Apollo Distribution. Any such
shares shall not constitute Registrable Securities once they have ceased to be
outstanding.
"Registration Expenses" means all expenses incident to the Company's
performance of or compliance with Section 3, including, without limitation, all
registration, filing and New York Stock Exchange fees, all listing fees, all
fees and expenses of complying with securities or blue sky laws, all word
processing, duplicating and printing expenses, messenger and delivery expenses,
the fees and disbursements of counsel for the Company and of its independent
public accountants, including the expenses of "comfort" letters required by or
incident to such performance and compliance, and any fees and disbursements of
underwriters customarily paid by issuers or sellers of securities; provided,
however, that Registration Expenses shall exclude, and the Covered Transferees
shall pay, underwriters' fees and underwriting discounts and commissions and
transfer taxes in respect of the Registrable Securities being registered.
"Rule 415" means Rule 415 promulgated under the Securities Act, as such
rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the Commission.
"Securities Act" means the Securities Act of 1933, as amended, or any
subsequent similar federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
References to a particular section of the Securities Act of 1933, as amended,
shall include a reference to the comparable section, if any, of any such
subsequent similar federal statute.
2. Conversion of Class A Shares; Apollo Distribution.
2.1.1 Ski Partners hereby irrevocably requests, pursuant to Section 4.06(c)
of the Charter that all of the Class A Shares owned by Ski Partners be converted
to Common Shares. Ski Partners has previously delivered to Wells Fargo Bank
Minnesota, N.A. ("Wells Fargo"), the Company's transfer agent, its certificates
representing 6,114,542 Class A Shares and
2
has directed Wells Fargo to issue Ski Partners certificates representing
6,114,542 Common Shares in exchange for the 6,114,542 Class A Shares.
2.1.2 The parties acknowledge that Ski Partners intends to effect the
Apollo Distribution and in connection therewith, the Company agrees to cooperate
with Ski Partners as provided herein.
2.1.3 The Company hereby agrees that it will instruct Wells Fargo to issue
Ski Partners or its designees as soon as practicable certificates for Common
Shares in connection with the conversion and the Apollo Distribution, as
applicable, representing 6,114,542 shares.
2.1.4 Ski Partners hereby agrees that effective the date hereof it will
cease to be a holder of Class A Shares and its rights as a shareholder in the
Company will only be as a holder of Common Shares.
3.2. Registration Rights.
3.1.1 Shelf Registration. No later than ten (10) business days after the
date hereof the Company will file a registration statement on Form S-3 under the
Securities Act covering all of the Registrable Securities, the Company shall use
commercially reasonable efforts to effect, as soon as reasonably practicable,
the registration under the Securities Act pursuant to Rule 415 under the
Securities Act (the "Initial Shelf Registration") of the Registrable Securities.
The Company shall use commercially reasonable efforts to keep the Initial
Shelf Registration continuously effective under the Securities Act until the
date which is six months from the date of original effectiveness (the
"Effectiveness Period"), or such shorter period ending when (i) all Registrable
Securities covered by the Initial Shelf Registration have been sold in the
manner set forth and as contemplated in such Initial Shelf Registration or (ii)
a Subsequent Shelf Registration covering all of the Registrable Securities
covered by and not sold under the Initial Shelf Registration or an earlier
Subsequent Shelf Registration has been declared effective under the Securities
Act.
3.1.2 Subsequent Shelf Registrations. If the Initial Shelf Registration or
any Subsequent Shelf Registration ceases to be effective for any reason at any
time during the Effectiveness Period (other than because of the sale of all of
the securities registered thereunder), the Company shall use commercially
reasonable efforts to obtain the prompt withdrawal of any order suspending the
effectiveness thereof, and in any event shall within 30 days of such cessation
of effectiveness amend the Initial Shelf Registration in a manner to obtain the
withdrawal of the order suspending the effectiveness thereof, or file an
additional "shelf" registration statement pursuant to Rule 415 covering all of
the Registrable Securities covered by and not sold under the Initial Shelf
Registration or an earlier Subsequent Shelf Registration (each, a "Subsequent
Shelf Registration"). If a Subsequent Shelf Registration is filed, the Company
shall use commercially reasonable efforts to cause the Subsequent Shelf
Registration to be declared effective under the Securities Act as soon as
practicable after such filing and to keep such Subsequent Shelf Registrations
3
continuously effective for a period equal to the remainder of the Effectiveness
Period measured from the applicable date of such withdrawal or suspension. As
used herein the term "Shelf Registration" means the Initial Shelf Registration
and any Subsequent Shelf Registration.
3.1.3 Supplements and Amendments. The Company shall promptly supplement and
amend the Shelf Registration if required by the rules, regulations or
instructions applicable to the registration form used for such Shelf
Registration, if required by the Securities Act.
3.1.4 Expenses. The Company shall pay the Registration Expenses in
connection with any registration required pursuant to this Section 3.1.
3.2 Registration Procedures.
3.2.1 In connection with the registration of any Registrable Securities
under the Securities Act as provided in Section 3.1, the Company shall as
expeditiously as possible:
(i) prepare and file with the Commission the requisite registration
statement to effect such registration and thereafter use commercially
reasonable efforts to cause such registration statement to become and
remain effective (subject to clause (ii) below);
(ii) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to keep such registration
statement effective and to comply with the provisions of the Securities Act
with respect to the disposition of all Registrable Securities covered by
such registration statement for such period as shall be required for the
disposition of all of such Registrable Securities; provided, that such
period need not exceed the Effectiveness Period;
(iii) furnish to Ski Partners such number of conformed copies of such
registration statement and of each such amendment and supplement thereto
(in each case including all exhibits), such number of copies of the
prospectus contained in such registration statement (including each
preliminary prospectus and any summary prospectus) and any other prospectus
filed under Rule 424 under the Securities Act, in conformity with the
requirements of the Securities Act, and such other documents, as Ski
Partners may reasonably request;
(iv) use commercially reasonable efforts (x) to register or qualify
all Registrable Securities and other securities covered by such
registration statement under such other securities or Blue Sky laws of such
States of the United States of America where an exemption is not available
and as Ski Partners shall reasonably request, (y) to keep such registration
or qualification in effect for so long as such registration statement
remains in effect, and (z) to take any other action which may reasonably be
necessary or advisable to enable the Covered Transferees to consummate the
disposition in such jurisdictions of the securities to be sold by the
Covered Transferees, except that the Company shall not for any such purpose
be required to qualify generally to do business as a foreign corporation in
4
any jurisdiction wherein it would not, but for the requirements of this
paragraph (iv), be obligated to be so qualified or to consent to general
service of process in any such jurisdiction;
(v) use commercially reasonable efforts to cause all Registrable
Securities covered by such registration statement to be registered with or
approved by such other federal or state governmental agencies or
authorities as may be necessary in the opinion of counsel to the Company
and counsel to Ski Partners to consummate the disposition of such
Registrable Securities in accordance with their intended method of
disposition;
(vi) notify Ski Partners when a prospectus relating thereto is
required to be delivered under the Securities Act, upon discovery that, or
upon the happening of any event as a result of which, the prospectus
included in such registration statement, as then in effect, includes an
untrue statement of a material fact or omits to state any material fact
required to be stated therein or necessary to make the statements therein
not misleading, in the light of the circumstances under which they were
made, and at the request of Ski Partners promptly prepare and furnish to it
a reasonable number of copies of a supplement to or an amendment of such
prospectus as may be necessary so that, as thereafter delivered to the
purchasers of such securities, such prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not
misleading in the light of the circumstances under which they were made;
(vii) otherwise use commercially reasonable efforts to comply with all
applicable rules and regulations of the Commission, and make available to
its security holders, as soon as reasonably practicable, an earnings
statement covering the period of at least twelve months, but not more than
eighteen months, beginning with the first full calendar month after the
effective date of such registration statement, which earnings statement
shall satisfy the provisions of Section 11(a) of the Securities Act and
Rule 158 promulgated thereunder, and promptly furnish the same to Ski
Partners;
The Company may require the Covered Transferees to furnish the Company such
information regarding the owner of the Registrable Securities and the
distribution of such Registrable Securities as the Company may from time to time
reasonably request in writing from Ski Partners.
Ski Partners agrees that upon receipt of any notice from the Company of the
happening of an event of the kind described in Section 3.2.1(vi), Ski Partners
will cause the Covered Transferees to discontinue its disposition of Registrable
Securities pursuant to the registration statement relating to such Registrable
Securities until Ski Partners's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 3.2.1(vi) and, if so directed by the
Company, Ski Partners will deliver to the Company (at the Company's expense) all
copies, other than permanent file copies, then in Ski Partners's or the Covered
Transferees' possession, of the prospectus relating to such Registrable
Securities current at the time of receipt of such notice.
5
3.2.2 Black-Out Periods. Each Covered Transferee agrees not to effect any
sale of any Registrable Securities under a Shelf Registration if the Company
determines, in its reasonable judgment, that such sale would interfere with any
financing, acquisition, corporate reorganization or other material transaction
involving the Company or any of its Affiliates or would require premature
disclosures thereof and promptly give Ski Partners, as representative of the
Covered Transferees, written notice of such determination, containing a general
statement of the reasons for such postponement (not amounting to material
non-public information) and an approximation of the anticipated black-out
period; provided, the Effectiveness Period shall be extended by the number of
days of any black-out period.
3.3 Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to this Agreement, the Company will give Ski Partners and its counsel
the opportunity to participate in the preparation of such registration
statement, each prospectus included therein or filed with the Commission, and
each amendment thereof or supplement thereto, and give each of them such access
to its books and records and such opportunities to discuss the business of the
Company with officers and the independent public accountants who have certified
its financial statements as shall be necessary, in the opinion of Ski Partners's
counsel, to conduct a reasonable investigation within the meaning of the
Securities Act. Any expenses incurred by Ski Partners in connection with any
such investigation shall be borne by Ski Partners.
3.4 Indemnification.
3.4.1 Indemnification by the Company. In the event of any registration of
any securities of the Company under the Securities Act, the Company will, and
hereby does, indemnify and hold harmless, in the case of any registration
statement filed pursuant to Section 3.1, Ski Partners, the Covered Transferees
and their respective directors, officers, partners, agents and affiliates and
each other Person, if any, who controls Ski Partners or the Covered Transferees
within the meaning of the Securities Act (each a "Participant"), insofar as
losses, claims, damages or liabilities(or actions or proceedings, whether
commenced or threatened, in respect thereof) arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
any registration statement under which such securities were registered under the
Securities Act, any preliminary prospectus, final prospectus, or summary
prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances in which they were made not misleading, and the Company will
reimburse the Participants for any legal or any other expenses reasonably
incurred by them in connection with investigating or defending any such loss,
claim, liability, action or proceeding; provided, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company through an instrument duly executed by or on behalf of the Participants
or such controlling Person, as the case may be, specifically stating that it is
for use in the preparation thereof; and provided, further, that the Company
6
shall not be liable to the Participants or any other person, if any, who
controls the Participants within the meaning of the Securities Act, in any such
case to the extent that any such loss, claim, damage, liability (or action or
proceeding in respect thereof) or expense arises out of such Person's failure to
send or give a copy of the final prospectus, as the same may be then
supplemented or amended, to the Person asserting an untrue statement or alleged
untrue statement or omission or alleged omission at or prior to the written
confirmation of the sale of Registrable Securities to such Person if such
statement or omission was corrected in such final prospectus so long as such
final prospectus, and any amendments or supplements thereto, have been furnished
to such controlling Person or the Participants, as applicable. Such indemnity
shall remain in full force and effect regardless of any investigation made by or
on behalf of the Participants or any such director, officer partner, agent or
affiliate or controlling Person and shall survive the transfer of such
securities, by the Participants.
3.4.2 Indemnification by the Participants. If any Registrable Securities
are included in any registration statement, the Participants will hold harmless
(in the same manner and to the same extent as set forth in Section 3.4.1 above)
the Company, and each director of the Company, each officer of the Company and
each other Person, if any, who controls the Company within the meaning of the
Securities Act, with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, if such statement or alleged statement or
omission or alleged omission was made in reliance upon and in conformity with
written information furnished to the Company through an instrument duly executed
by a Participant specifically stating that it is for use in the preparation of
such registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement. The liability of a Participant under the
indemnity agreement contained in this paragraph shall be limited to the gross
proceeds received by such Participant from the sale of Common Shares under a
Shelf Registration.
3.4.3 Notice of Claims, Etc. Promptly after receipt by an indemnified party
of notice of the commencement of any action or proceeding involving a claim
referred to in the preceding paragraphs of this Section 3.4, such indemnified
party will, if a claim in respect thereof is to be made against an indemnifying
party, immediately give written notice to the latter of the commencement of such
action; provided, however, that the failure of any indemnified party to give
notice as provided herein shall not relieve the indemnifying party of its
obligations under the preceding paragraphs of this Section 3.4, except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action is brought against an indemnified party,
unless in such indemnified party's reasonable judgment a conflict of interest
between such indemnified and indemnifying parties may exist in respect of such
claim, the indemnifying party shall be entitled to participate in and to assume
the defense thereof, jointly with any other indemnifying party similarly
notified to the extent that it may wish, with counsel reasonably satisfactory to
such indemnified party, and after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party for any legal
or other expenses subsequently incurred by the latter in connection with the
defense thereof other than reasonable costs related to the indemnified party's
7
cooperation with the indemnifying party, unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties arises in respect of such claim after the assumption of the
defense thereof. No indemnifying party shall be liable for any settlement of any
action or proceeding effected without its written consent, which consent shall
not be unreasonably withheld. No indemnifying party shall, without the consent
of the indemnified party, consent to entry of any judgment or enter into any
settlement which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release from all
liability in respect to such claim or litigation.
3.4.4 Contribution. If the indemnification provided for in this Section 3.4
shall for any reason be held by a court to be unavailable to an indemnified
party under paragraph 3.4.1 or 3.4.2 hereof in respect of any loss, claim,
damage or liability, or any action in respect thereof, then, in lieu of the
amount paid or payable under paragraph 3.4.1 or 3.4.2 hereof, the indemnified
party and the indemnifying party under paragraph 3.4.1 or 3.4.2 hereof shall
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating the
same), (i) in such proportion as is appropriate to reflect the relative fault of
the Company on one hand and the Participants on the other which resulted in such
loss, claim, damage or liability, or action in respect thereof, with respect to
the statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant equitable
considerations or (ii) if the allocation provided by paragraph (i) above is not
permitted by applicable law, in such proportion as shall be appropriate to
reflect the relative benefits received by the Company on one hand and the
Participants on the other. No Person guilty of fraudulent misrepresentation
(within the meaning of the Securities Act) shall be entitled to contribution
from any Person who was not guilty of such fraudulent misrepresentation. In
addition, no Person shall be obligated to contribute hereunder any amounts in
payment for any settlement of any action or claim, effected without such
Person's consent, which consent shall not be unreasonably withheld.
3.4.5 Other Indemnification. Indemnification and contribution similar to
that specified in the preceding paragraphs of this Section 3.4 (with appropriate
modifications) shall be given by the Company and the Participants with respect
to any required registration or other qualification of securities under any
federal or state law or regulation of any governmental authority other than the
Securities Act.
3.4.6 Indemnification Payments. The indemnification and contribution
required by this Section 3.4 shall be made by periodic payments of the amount
thereof during the course of the investigation or defense, as and when bills are
received or expense, loss, damage or liability is incurred.
3.5. Rule 144. The Company shall file any reports required to be filed by
it under the Securities Act and the Exchange Act and the rules and regulations
adopted by the Commission thereunder, and it will take such further action as
any Transferee may reasonably request to make available adequate current public
information with respect to the Company meeting the current public information
requirements of Rule 144(c) under the Securities Act, to
8
the extent required to enable such Transferee to sell Common Shares without
registration under the Securities Act within the limitation of the exemptions
provided by (i) Rule 144 under the Securities Act, as such Rule may be amended
from time to time, or (ii) any similar rule or regulation hereafter adopted by
the Commission. Notwithstanding the foregoing, nothing in this Section 3.5 shall
be deemed to require the Company to register any of its securities pursuant to
the Exchange Act.
4. Modification; Waivers. This Agreement may be modified or amended only
with the written consent of each party hereto. No party hereto shall be released
from its obligations hereunder without the written consent of the other party.
The observance of any term of this Agreement may be waived (either generally or
in a particular instance and either retroactively or prospectively) by the party
entitled to enforce such term, but any such waiver shall be effective only if in
a writing signed by the party against which such waiver is to be asserted.
Except as otherwise specifically provided herein, no delay on the part of any
party hereto in exercising any right, power or privilege hereunder shall operate
as a waiver thereof, nor shall any waiver on the part of any party hereto of any
right, power or privilege hereunder operate as a waiver of any other right,
power or privilege hereunder nor shall any single or partial exercise of any
right, power or privilege hereunder preclude any other or further exercise
thereof or the exercise of any other right, power or privilege hereunder.
5. Entire Agreement. This Agreement represents the entire understanding and
agreement between the parties hereto with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both written and
oral, between the parties with respect to the subject matter hereof.
6. Severability. If any provision of this Agreement, or the application of
such provision to any Person or circumstance, shall be held invalid, the
remainder of this Agreement or the application of such provision to other
Persons or circumstances shall not be affected thereby; provided, that the
parties shall negotiate in good faith with respect to an equitable modification
of the provision or application thereof held to be invalid.
7. Notices. (a) Any notice or communication to any party hereto shall be
duly given if in writing and. delivered in person or mailed by first class mail
(registered or certified, return receipt requested), facsimile or overnight air
courier guaranteeing next day delivery, to such other party's address.
9
If to Vail Resorts, Inc.:
137 Benchmark Road
Avon, Colorado 81620
Facsimile No.: (970) 845-2928
Attention: Martha D. Rehm
with a copy to:
James J. Clark, Esq.
Luis R. Penalver, Esq.
Cahill Gordon & Reindel LLP
80 Pine Street
New York, New York 10005
Facsimile No.: (212) 269-5420
If to Apollo Ski Partners, L.P. and Transferees:
2 Manhattanville Road
Purchase, NY 10577
Attention: Tony Tortorelli
Facsimile No.: (914) 694-8032
with a copy to:
Apollo Management, LP
10250 Constellation Boulevard
Suite 2900
Los Angeles, CA 90067
Attention: Michael D. Weiner
Facsimile No.: (310) 843-1950
(b) All notices and communications will be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five
business days after being deposited in the mail, if mailed; when receipt
acknowledged, if sent by facsimile; and the next business day after timely
delivery to the courier, if sent by overnight air courier guaranteeing next
day delivery.
8. Third Party Beneficiary. The Transferees shall be third party
beneficiaries to the agreements made hereunder between the Company, on the one
had, and Ski Partners, on the other hand and shall have the right to enforce
such agreements directly to the extent they may deem such enforcement necessary
or advisable to protect its rights or the rights of Transferees hereunder.
10
9. Ski Partners as Representative. Ski Partners hereby agrees that it will
act as representative for the Covered Transferees with respect to this Agreement
and whenever Ski Partners receives any notification from the Company pursuant to
this Agreement or with respect to a Shelf Registration, Ski Partners shall
promptly notify each Transferee of the same.
10. Counterparts. This Agreement may be executed in one or more
counterparts, each of which for all purposes shall be deemed to be an original
and all of which together shall constitute the same agreement.
11. Headings. The Section headings in this Agreement are for convenience of
reference only, and shall not be deemed to alter or affect the meaning or
interpretation of any provisions hereof.
12. Construction. This Agreement shall be governed, construed and enforced
in accordance with the laws of the State of New York, without regard to its
principles of conflict of laws.
13. Recapitalizations, etc. In the event that any capital stock or other
securities are issued in respect of, in exchange for, or in substitution of, any
Registrable Securities by reason of any reorganization, recapitalization,
reclassification, merger, consolidation, spin-off, partial or complete
liquidation, stock dividend, split-up, sale of assets, distribution to
stockholders or combination of the shares of Registrable Securities or any other
change in the Company's capital structure, appropriate adjustments shall be made
in this Agreement so as to fairly and equitably preserve, as far as practicable,
the original rights and obligations of the parties hereto under this Agreement.
14. Attorneys' Fees. In any action or proceeding brought to enforce any
provision of this Agreement by a party hereto, or where any provision hereof is
validly asserted as a defense by such party, such party, if successful, shall be
entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
15. Specific Performance. The parties hereto agree that the Registrable
Securities of the Company cannot be purchased or sold in the open market and
that, for these reasons, among others, the parties will be irreparably damaged
in the event that this Agreement is not specifically enforceable. Accordingly,
in the event of any controversy concerning the Registrable Securities which is
the subject of this Agreement, or any right or obligation to register such
securities, such right or obligation shall be enforceable in a court of equity
by specific performance. The rights granted in this Section 15 shall be
cumulative and not exclusive, and shall be in addition to any and all other
rights which the parties hereto may have hereunder, at law or in equity.
11
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
and delivered by their respective officers thereunto duly authorized as of the
date first above written.
APOLLO SKI PARTNERS, L.P.
By: Apollo Investment Fund, L.P.
By: Apollo Advisors, L.P.
By: Apollo Capital Management, Inc.
By: /s/ Michael D. Weiner
--------------------------------------
Name: Michael D. Weiner
Title: Vice President
VAIL RESORTS, INC.
By: /s/ Martha D. Rehm
--------------------------------------
Name: Martha D. Rehm
Title: Senior Vice President
12
Exhibit 99.1
VAIL RESORTS, INC. NEWS RELEASE
For immediate Release
Vail Resorts Contacts:
Media: Kelly Ladyga, (970) 845-5720, kladyga@vailresorts.com
Investor Relations: Leslie Roubos, (970) 845-2958, lroubos@vailresorts.com
VAIL RESORTS TAKES SEVERAL STEPS TO ENHANCE CORPORATE GOVERNANCE
o Class A Common Shares converted to Common Shares
o Board of Directors to become smaller, more tightly focused, more
independent
VAIL, Colo. - September 30, 2004 - Vail Resorts, Inc. (NYSE: MTN) announced
today several steps designed to improve its corporate governance. Most notable
are the cessation of the dual class share structure of Common Stock and Class A
Common Stock that has been in place since 1992 and changes in Vail Resorts'
Board of Directors and Board Committee composition. These changes are the result
of Apollo Ski Partners L.P., holders of approximately 17.8% of Vail Resorts
total outstanding shares, having advised the Company that effective immediately
it will voluntarily waive and permanently forego many of its existing rights.
CESSATION OF DUAL CLASS SHARE STRUCTURE
As of September 28, 2004, Apollo Ski Partners owned approximately 6.1
million shares of Class A Common Stock (99.995% of the Class A Common Stock
outstanding), which was substantially identical to Common Stock except that the
holder of the Class A shares had the right to elect up to two-thirds of the
Board of Directors. On September 28, 2004, as a result of an action by Apollo
Ski Partners, 100.0% of the Class A Common Shares were converted into Common
Shares. As a result, Apollo Ski Partners no longer has any special rights to
elect members of the Company's Board of Directors.
Separately, Apollo Ski Partners has advised the Company that it intends
within 30 days, or as soon as is practicable, to distribute its holding of
Common Shares directly to its limited
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partner investors. As a result, all these shares will become freely tradable, in
part because the Company has agreed, as part of Apollo's agreement to convert
its Class A shares, to file a registration statement covering certain of the
shares to be owned by the limited partners of Apollo Ski Partners. As a result
of these actions, Apollo Ski Partners will no longer be deemed an "affiliate" of
Vail Resorts, and will no longer be deemed to be in control of Vail Resorts,
either directly or indirectly. Also as a result of the distribution of shares
from Apollo Ski Partners, the Shareholder Agreement between Apollo Ski Partners,
Ralcorp Holdings and the Company is being terminated. However, the Company has
agreed that Ralcorp Holdings will retain its registration rights.
ELIMINATION OF MANAGEMENT FEE
For more than a decade, in connection with Apollo Ski Partners L.P.'s
shareholdings in Vail Resorts, Apollo Advisors L.P., a New York-based private
equity firm, has received an annual management fee for providing financial and
strategic advisory services to the Company. Apollo and Vail Resorts have
terminated this arrangement effective October 1, 2004.
CHANGES IN BOARD OF DIRECTOR AND COMMITTEE COMPOSITION
As part of the change in ownership structure represented by the conversion
of the Class A shares into Common Shares, the Vail Resorts Board of Directors
has decided to reduce the size of the existing board in the interest of
improving the effectiveness and focus of the Directors. As such, of the 12
Directors who have previously served on the Vail Resorts Board of Directors,
seven will remain in position and five have resigned as of September 27, 2004.
Of the seven Directors who will continue, all six non-management directors will
be "independent" under NYSE rules.
The Board of Directors of Vail Resorts will now include:
Adam M. Aron, Chairman of the Board and CEO of Vail Resorts
John Hannan, Founding Principal, Apollo Management L.P.
Roland A. Hernandez, CEO of Hernandez Media Ventures and former Chairman,
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President and CEO of Telemundo Group
Robert A. Katz, associated with Apollo Management L.P.
Joe R. Micheletto, Vice Chairman of Ralcorp Holdings and former President
and CEO of Ralcorp Holdings
John Sorte, President and CEO of Morgan Joseph & Co.
William P. Stiritz, Chairman of Ralcorp Holdings and Energizer Holdings,
and former Chairman and CEO of the Ralston Purina Company
The Board's Committees and assignment of duties will now consist of:
Lead Director: Mr. Katz
Executive: Messrs. Aron, Katz and Micheletto
Audit: Messrs. Micheletto (Chairman), Hernandez and Katz
Compensation: Messrs. Katz (Chairman), Micheletto and Sorte
Nominating
and Governance: Messrs. Stiritz (Chairman), Hannan and Hernandez
The Board's membership and Committee assignments comply with the NYSE
requirements for independence.
The Directors leaving the Vail Resorts Board include Frank Biondi, John
Hauge, Thomas Lee, William Mack, and James Tisch. The Company wished to
emphasize that these departures were fully amicable.
Commenting on these developments, Adam M. Aron, Vail Resorts Chairman and
CEO since 1996, said, "We are very grateful for the leadership provided by
Apollo since 1992. The Company took many steps over the past decade to further
establish its position as the premier mountain resort operator in North America,
including: the acquisition of Arrowhead and Bachelor Gulch, and the development
of Beaver Creek; the acquisition of Keystone, Breckenridge and Heavenly; the
opening of Vail's Blue Sky Basin, Breckenridge's Peak 7 and Keystone's Bergman
and Erickson Bowls; the acquisition of the Grand Teton Lodge Company,
RockResorts and a number of luxury lodging properties; the building of
Keystone's River Run Village; the planning for Vail's New Dawn and
Breckenridge's proposed Alpine Village; as well
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as the creation of Red Sky Ranch; among others. We also fully understand that as
an investment fund, there is need for Apollo to distribute its shares in Vail
Resorts to its own investors."
Aron added, "The changes in our Board of Directors are also of import. We
have been very fortunate to have for many years the benefit of advice and
guidance from some incredibly talented individuals. Several will now be leaving
the Board. While we will miss their sage counsel, the Board, at a smaller size
of seven, can now be more tightly focused and committed to the future of Vail
Resorts. And that future is a bright one in our view. We have just completed in
fiscal 2004 a fabulous year, from a Reported EBITDA perspective the best in the
Company's 42-year history. We have every reason to be highly optimistic as we
look to the future."
Vail Resorts, Inc. is the premier mountain resort operator in North
America. The Company's subsidiaries operate the mountain resorts of Vail, Beaver
Creek, Breckenridge and Keystone in Colorado, Heavenly Resort in California and
Nevada and the Grand Teton Lodge Company in Jackson Hole, Wyoming. In addition,
the Company's RockResorts luxury resort hotel company operates 10 resort hotels
throughout the United States. The Vail Resorts corporate website is
www.vailresorts.com and the consumer websites are www.snow.com and
www.rockresorts.com. Vail Resorts, Inc. is a publicly held company traded on the
New York Stock Exchange (NYSE: MTN).
###
Statements in this press release, other than statements of historical
information, are forward looking statements that are made pursuant to the safe
harbor provisions of the Private Securities Litigation Reform Act of 1995. Such
forward-looking statements are subject to certain risks and uncertainties that
could cause actual results to differ materially from those projected. Readers
are cautioned not to place undue reliance on these forward-looking statements
which speak only as of the date hereof. Investors are also directed to other
risks discussed in the Company's Annual Report on Form 10-K for the fiscal year
ended July 31, 2003 and other documents filed by the Company with the Securities
and Exchange Commission.
***