VAIL RESORTS, INC. RESTRICTED SHARE AGREEMENT
VAIL
RESORTS, INC.
THIS
AGREEMENT, effective as of September 30, 2005, between Vail Resorts, Inc. (the
“Company”), a Delaware corporation, and Xxxxxxx X. Xxxxx (the
“Employee”).
WHEREAS,
40,000 Restricted Shares (the “Award”) were granted to the Employee on September
30, 2005 under the Company’s 2002 Long Term Incentive and Share Award Plan (the
“Plan”).
NOW,
THEREFORE, in consideration of the premises and mutual covenants contained
herein, and for other good and valuable consideration, the parties hereto agree
as follows.
1. Award
of Shares. The
Award was granted on September 30, 2005 (the “Date of Grant”) pursuant to the
Plan, the terms of which are incorporated herein by reference. Capitalized
terms
used herein and not defined shall have the meanings set forth in the Plan.
The
Award is subject to the terms and conditions of the Plan and those set forth
herein. In the event of any conflict between this Agreement and the Plan, the
Plan shall control.
2. Terms
and Conditions. It
is understood and agreed that the Award of Restricted Shares evidenced hereby
is
subject to the following terms and conditions:
(a) Vesting
of Award.
Subject
to Section 2(b) and 2(c) below and the other terms and conditions of this
Agreement, this Award shall become vested in full on the third anniversary
of
the Date of Grant. Unless otherwise provided by the Committee, all dividends
and
other amounts receivable in connection with any adjustments to the Shares under
Section 4(c) of the Plan shall be subject to the vesting schedule in this
Agreement.
(b) Termination
of Service; Forfeiture of Unvested Shares.
In the
event of a termination of the Employee’s employment with the Company and its
Subsidiaries by the Company or a Subsidiary not for Cause (as defined in the
Amended and Restated Employment Agreement dated as of September 29, 2004 by
and
between the Company and the Employee (the “Employment Agreement”)) or by the
Employee for Good Reason (as defined in the Employment Agreement), a number
of
Restricted Shares subject to the Award will become vested at the time of such
termination of employment determined by multiplying the number of the Restricted
Shares subject to the Award by a fraction, the numerator of which is the number
of completed years from the Date of Grant to the date of termination, and the
denominator of which is three. In the event of a termination of the Employee’s
employment with the Company and its Subsidiaries prior to the date the Award
otherwise becomes vested other than as set forth in the preceding sentence
or
Section 2(c) below, the unvested portion of the Award shall immediately be
forfeited by the Employee and become the property of the Company.
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(c) Change
in Control.
Notwithstanding any provision of this Agreement to the contrary, in the event
of
a Change in Control (as defined in Annex A hereto), the Award, if not
already vested under Section 2(a) or 2(b) above, will vest in full at the time
of the Change in Control; provided,
however,
the
vesting of this Award shall not accelerate pursuant to this Section 2(c) if
(i) there is no Control Party (as defined below) with respect to the Company
after the Change in Control and the Employee remains as chief financial officer
of the Company, or (ii) there is a publicly traded Control Party with respect
to
the Company after the Change in COntrol and the Employee is the chief financial
officer of such Control Party; provided further,
however, if the Employee’s employment is terminated by the Company or such
Control Party, as the case may be, not for Cause after a Change in Control,
the Award shall immediately vest in full upon such termination. "Control
Party" is defined as a "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Exchange Act, but excluding any employee benefit plan
of
such person or its subsidiaries, and any person or entity acting in its capacity
as trustee, agent, or other fiduciary or administrator of any such plan) that
is
the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the Exchange
Act) of more than 40% or more of the equity securities of the Company entitled
to vote for members of the Board or equivalent governing body of the Company
on
a fully-diluted basis.
(d) Certificates. Each
certificate or other evidence of ownership issued in respect of Restricted
Shares awarded hereunder shall be deposited with the Company, or its designee,
together with, if requested by the Company, a stock power executed in blank
by
the Employee, and shall bear a legend disclosing the restrictions on
transferability imposed on such Restricted Shares by this Agreement (the
“Restrictive Legend”). Upon the vesting of Restricted Shares hereunder and the
satisfaction of any withholding tax liability pursuant to Section 5 hereof,
the certificates evidencing such vested Shares, not bearing the Restrictive
Legend, shall be delivered to the Employee or other evidence of vested Shares
shall be provided to the Employee.
(e) Rights
of a Stockholder. Prior
to the time a Restricted Share is fully vested hereunder, the Employee shall
have no right to transfer, pledge, hypothecate or otherwise encumber such
Restricted Share. During such period, the Employee shall have all other rights
of a stockholder, including, but not limited to, the right to vote and to
receive dividends (subject to Section 2(a) hereof) at the time paid on such
Restricted Shares.
(f) No
Right to Continued Employment.
This
Award shall not confer upon the Employee any right with respect to continuance
of employment by the Company nor shall this Award interfere with the right
of
the Company to terminate the Employee’s employment at any time.
3. Transfer
of Shares.
The
Shares delivered hereunder, or any interest therein, may be sold, assigned,
pledged, hypothecated, encumbered, or transferred or disposed of in any other
manner, in whole or in part, only in compliance with the terms, conditions
and
restrictions as set forth in the governing instruments of the Company,
applicable federal and state securities laws or any other applicable laws or
regulations and the terms and conditions hereof.
4. Expenses
of Issuance of Shares.
The
issuance of stock certificates hereunder shall be without charge to the
Employee. The Company shall pay any issuance, stamp or documentary taxes (other
than transfer taxes) or charges imposed by any governmental body, agency or
official (other than income taxes) by reason of the issuance of
Shares.
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5. Withholding.
No
later than the date of vesting of (or the date of an election by the Employee
under Section 83(b) of the Code with respect to) the Award granted
hereunder, the Employee shall pay to the Company or make arrangements
satisfactory to the Committee regarding payment of any federal, state or local
taxes of any kind required by law to be withheld at such time with respect
to
such Award and the Company shall, to the extent permitted or required by law,
have the right to deduct from any payment of any kind otherwise due to the
Employee, federal, state and local taxes of any kind required by law to be
withheld at such time. The Employee may elect to have the Company withhold
Shares to pay any applicable withholding taxes resulting from the Award, in
accordance with any rules or regulations of the Committee then in
effect.
6. References. References
herein to rights and obligations of the Employee shall apply, where appropriate,
to the Employee’s legal representative or estate without regard to whether
specific reference to such legal representative or estate is contained in a
particular provision of this Agreement.
7. Notices. Any
notice required or permitted to be given under this Agreement shall be in
writing and shall be deemed to have been given when delivered personally or
by
courier, or sent by certified or registered mail, postage prepaid, return
receipt requested, duly addressed to the party concerned at the address
indicated below or to such changed address as such party may subsequently by
similar process give notice of:
If
to the
Company:
Vail Resorts, Inc.
X.X. Xxx 0
Xxxx, XX 00000
Attention: General Counsel
If
to the
Employee:
At
the
Employee’s most recent address shown on the Company’s corporate records, or at
any other address which the Employee may specify in a notice delivered to the
Company in the manner set forth herein.
8. Governing
Law. This
Agreement shall be governed by and construed in accordance with the laws of
New
York, without giving effect to principles of conflict of laws.
9. Counterparts. This
Agreement may be executed in two counterparts, each of which shall constitute
one and the same instrument.
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IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first above written.
VAIL
RESORTS, INC.
By:
/s/ Xxxxxx X. Xxxx
Name:
Xxxxxx X. Xxxx
Title: Executive Vice President &
General Counsel
Date: March 2, 2006
/s/ Xxxxxxx X. Xxxxx
Employee
Date:
March 2, 2006
Annex
A
Definition
of Change in Control
For
purposes of this Agreement, “Change in Control” shall mean an event or series of
events by which:
(a) any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act, but excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent,
or other fiduciary or administrator of any such plan) becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of 40% or more of the equity securities of the Company entitled
to
vote for members of the Board or equivalent governing body of the Company on
a
fully-diluted basis; or
(b) during
any period of twenty four (24) consecutive months, a majority of the members
of
the Board or other equivalent governing body of the Company cease to be composed
of individuals (i) who were members of that Board or equivalent governing body
on the first day of such period, (ii) whose election or nomination to that
Board
or equivalent governing body was approved by individuals referred to in clause
(i) above constituting at the time of such election or nomination at least
a
majority of that Board or equivalent governing body, or (iii) whose election
or
nomination to that Board or other equivalent governing body was approved by
individuals referred to in clauses (i) and (ii) above constituting at the time
of such election or nomination at least a majority of that Board or equivalent
governing body (excluding, in the case of both clause (ii) and clause (iii),
any
individual whose initial nomination for, or assumption of office as, a member
of
that Board or equivalent governing body occurs as a result of an actual or
threatened solicitation of proxies or consents for the election or removal
of
one or more directors by any person or group other than a solicitation for
the
election of one or more directors by or on behalf of the Board); or
(c) any
person or two or more persons acting in concert shall have acquired, by contract
or otherwise, control over the equity securities of the Company entitled to
vote
for members of the Board or equivalent governing body of the Company on a
fully-diluted basis (and taking into account all such securities that such
person or group has the right to acquire pursuant to any option right)
representing 51% or more of the combined voting power of such
securities.
