UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
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): December 4, 2009
Vail Resorts,
Inc.
(Exact
Name of Registrant as Specified in Charter)
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Delaware
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001-09614
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51-0291762
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(State
or Other Jurisdiction of Incorporation)
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(Commission
File Number)
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(IRS
Employer Identification No.)
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390
Interlocken Crescent
Broomfield,
Colorado
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80021
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(Address
of Principal Executive Offices)
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(Zip
Code)
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Registrant's
telephone number, including area code:
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(303)
404-1800
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(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:
[ ]
Written communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
[ ]
Soliciting materials 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))
Item
5.02. Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
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.
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Vail
Resorts, Inc.
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Date:
December 10, 2009
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By:
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/s/
Jeffrey W. Jones
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Jeffrey
W. Jones
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Senior
Executive Vice President and
Chief
Financial Officer
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EXHIBIT
INDEX
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Exhibit No.
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Description
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99.1
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Vail
Resorts, Inc. Amended and Restated 2002 Long Term Incentive and Share
Award Plan, as amended on December 4,
2009
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VAIL
RESORTS, INC. AMENDED AND RESTATED
2002
LONG TERM INCENTIVE AND SHARE AWARD PLAN
As
amended December 4, 2009
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1.
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Purposes.
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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.
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2.
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Definitions.
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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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(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 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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(t)
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“Performance
Cash Award” means a performance cash award granted under
Section 5(f).
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(u)
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“Performance
Share” means a performance share granted under
Section 5(f).
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(v)
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“Performance
Unit” means a performance unit granted under
Section 5(f).
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(w)
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“Plan”
means this Amended and Restated 2002 Long Term Incentive and Share Award
Plan.
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(x)
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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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(y)
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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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(aa)
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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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(bb)
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“Shares”
means common stock, $.01 par value per share, of the
Company.
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(cc)
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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.
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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 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.
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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 7,500,000; 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.
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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 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. A 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 a 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 a SAR shall be in tandem with any
other Award, and any other terms and conditions of any SAR. Unless the
Committee determines otherwise, a 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 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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(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, 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 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.
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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 a 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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(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 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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