EXECUTIVE EMPLOYMENT AGREEMENT
Exhibit
10.1
This
EXECUTIVE EMPLOYMENT AGREEMENT (this “Agreement”) is made and entered into
October 15, 2008 by and between VAIL RESORTS, INC., a Delaware corporation (the
“Company”) and Xxxxxx X. Xxxx (“Executive”).
Whereas
the parties had previously entered into that certain Employment Agreement, dated
February 28, 2006 (the “Original Agreement”), but now desire to make certain
updates to the terms contained in that Original Agreement as required to comply
with law and as otherwise agreed herein and in order to accomplish the foregoing
to enter into this replacement Agreement.
The
parties hereto agree as follows:
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1.
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Employment.
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(a) The
Company hereby employs Executive to serve as the Chief Executive Officer of the
Company on the terms and conditions set forth herein. In such capacity,
Executive shall have the responsibilities normally associated with such
position, subject to the direction and supervision of the Board of Directors of
the Company (the “Board”). Executive shall also serve as a member of
the Board and the Executive Committee of the Board.
(b) Executive
accepts employment hereunder and agrees that, during the term of Executive’s
employment, Executive will observe and comply with the policies and rules of the
Company and devote substantially all Executive’s time during normal business
hours and best efforts to the performance of Executive’s duties hereunder, which
duties shall be performed in an efficient and competent manner and to the best
of Executive’s ability. Executive further agrees that, during the
term of this Agreement, Executive will not, without the prior written consent of
the Board, directly or indirectly engage in any manner in any business or other
endeavor, either as an owner, employee, officer, director, independent
contractor, agent, partner, advisor, or in any other capacity calling for the
rendition of Executive’s personal services. This restriction shall
not preclude Executive from having passive investments, and devoting reasonable
time to the supervision thereof (so long as such does not create a conflict of
interest or interfere with Executive’s obligations hereunder), in any business
or enterprise that is not in competition with any business or enterprise of the
Company or any of its parents, subsidiaries or affiliates (collectively, the
“Companies”). This Agreement shall not limit Executive’s community or
charitable activities so long as such activities do not impair or interfere with
Executive’s performance of the services contemplated by this
Agreement.
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2.
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Compensation.
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For all
services rendered by Executive to or on behalf of the Companies, the Company
shall provide or cause to be provided to Executive, subject to making any and
all withholdings and deductions required of the Company or its affiliates by law
with all other income tax consequences being borne by Executive, the
following:
(a) Base
Salary. Executive shall receive a base salary of Eight Hundred
and Forty-Three Thousand Five Hundred Dollars ($843,500.00) per year (the “Base
Salary”), payable in accordance with the normal payroll practices of the
Company, and net of mandatory time off deductions and other applicable
withholding and deductions. Executive’s Base Salary shall be reviewed
annually by the Compensation Committee of the Board (the “Compensation
Committee”). Any increases in such Base Salary shall be at the
discretion of the Compensation Committee, and Executive acknowledges that the
Compensation Committee is not obligated to grant any increases. The
Base Salary shall not be lowered during the term of this Agreement without
Executive’s written consent.
(b) Vail Resorts Management
Incentive Plan for Corporate Executives. Executive shall be
entitled to participate in the Management Incentive Plan for Corporate
Executives (the “MIP”) on the same terms as may be applicable to other senior
executives of the Company and subject to the terms of the MIP. Under
the MIP, Executive’s target annual bonus award will be One Hundred Percent
(100%) of Executive’s Base Salary based upon Executive’s performance in light of
objectives established by the Board and assessed by the Compensation
Committee. The value of any award under the MIP (“MIP Award”) made to
Executive shall be payable in the form of cash as to Fifty Percent
(50%) of the MIP Award and in the form of Restricted Stock Units (“RSUs”) with a
value equal to the remaining Fifty Percent (50%) of the MIP
Award. The RSUs shall be issued subject to the terms of the VRI
Amended and Restated 2002 Long Term Incentive and Share Award Plan (the “Equity
Compensation Plan”) and the agreement provided pursuant thereto, using the
Company’s standard valuation methodology and vesting in increments of 1/3 per
year over a three year period, such vesting to commence on the first anniversary
of the grant date of such RSUs. Any awards under the MIP are at the
discretion of the Compensation Committee.
(c)
Benefits; Paid Time Off.
Executive shall be eligible to participate in the benefit plans and perks and on
the same terms as may be extended generally to other senior executives of the
Companies and to the extent Executive is eligible under the terms of the
applicable plan. Executive shall also receive two hundred sixteen
(216) hours of paid time off, which amount shall include hours for paid
holidays, as well as be required to take such hours of mandatory-time-off in
accordance with the Company’s policies and procedures.
(d)
Clubs and Other
Privileges. Executive shall, subject to applicable rules in
effect from time to time, be entitled during the term of employment to the
benefits of membership in all of the private clubs owned and operated by the
Company from time to time (collectively “Clubs”) as part of the
Company’s quality evaluation program and subject to completion of bi-annual
feedback surveys; provided that Executive shall not actually be a member of such
Clubs and in no event shall Executive be entitled to any claim of reimbursement
for any initiation or similar fees. Executive shall be solely
responsible for the payment of any and all charges incurred at such Clubs, but
may utilize Executive’s annual allowance provided pursuant to Executive
Perquisite Fund (as may be in effect from time to time) to pay such charges,
excepting only the payment of regular dues, which Executive shall not be
obligated to pay. In addition, Executive shall receive all other
benefits and perquisites on the same terms afforded from time to time to senior
executives generally or as specifically approved by the Compensation
Committee. Executive shall participate in the Executive Perquisite
Fund (under the terms as of the date hereof) in the amount of $70,000 per
annum.
(e) Expense
Reimbursement. Executive shall have a travel and entertainment
budget that is reasonable in light of Executive’s position and responsibilities
and shall be reimbursed for all reasonable business-related travel and
entertainment expenses incurred by Executive thereunder upon submission of
appropriate documentation thereof in compliance with applicable Company
policies.
(f) Legal
Expenses. The Company shall reimburse Executive’s reasonable
documented legal fees and expenses (not to exceed $10,000) incurred in the
review and negotiation of this Agreement.
(g) LTI
Grant. So long as Executive shall be employed by the Company
on March 1, 2009 (and has not received any notice of termination for any reason
as of or prior to that date), Executive shall be granted (the “March 2009
Grant”) a long term incentive award having a grant value of $4,800,000, of which
(1) $1,000,000 (using the Company’s standard valuation methodology) shall be
pursuant to a grant of Restricted Stock Units (“RSUs”), and (2) $3,800,000
(using the Company’s standard valuation methodology) shall be pursuant to a
grant of Share Appreciation Rights (“SARs”), each of which (x) shall be subject
to the terms of the VRI Amended and Restated 2002 Long Term Incentive and Share
Award Plan (or such successor equity compensation plan) and the agreements
provided pursuant thereto, and (y) shall vest in full on September 30, 2011;
provided, however, that this
provision shall be of no effect in the event that a Change in Control, as
defined below, has been completed on or before March 1, 2009, and only if the
effect of such Change in Control is to extinguish, exchange or convert the
common stock of the Company concurrent with the Change in Control being
effected. Notwithstanding the terms of any other agreement or plan,
none of the vesting of the RSUs or SARs issued pursuant to the March 2009 Grant
shall accelerate in the event of a duly completed Change in Control which has
been publicly announced or completed prior to September 1, 2009 but rather shall
vest pursuant to (y) above.
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3.
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Term and
Termination.
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(a) Term. The
effective date of this Agreement shall be October 15, 2008 (“Employment
Commencement Date”). Unless terminated earlier, the term of this
Agreement shall be for the period commencing with the Employment Commencement
Date and continuing through October 15, 2011 and shall thereafter be
automatically renewed for successive one-year periods unless, no later than 60
days before the expiration of the then-current term, either Executive or the
Company gives the other written notice of non-renewal, in which case this
Agreement shall expire upon the conclusion of the then-current initial or
renewal term.
(b) Termination for
Cause. The Company may terminate this Agreement at any time
for “Cause”. For purposes of this Agreement, “Cause” shall mean (i)
any conduct related to the Company involving gross negligence, gross
mismanagement, or the unauthorized disclosure of confidential information or
trade secrets; (ii) dishonesty or a violation of the Company’s Code of Ethics
and Business Conduct that has or reasonably could be expected to result in a
detrimental impact on the reputation, goodwill or business position of any of
the Companies; (iii) gross obstruction of business operations or illegal or
disreputable conduct by Executive that impairs or reasonably could be expected
to impair the reputation, goodwill or business position of any of the Companies,
and any acts that violate any policy of the Company relating to discrimination
or harassment; (iv) commission of a felony or a crime involving moral turpitude
or the entrance of a plea of guilty or nolo contedere to a felony or a crime
involving moral turpitude; or (v) any action involving a material breach of the
terms of the Agreement including material inattention to or material neglect of
duties and Executive shall not have remedied such breach within 30 days after
receiving written notice from the Board specifying the details
thereof. In the event of a termination for Cause, Executive shall be
entitled to receive only Executive’s then-current Base Salary through the date
of such termination. Further, Executive acknowledges that in the
event of such a termination for Cause, Executive shall not be entitled to
receive any bonus payment for the year of termination or subsequent years under
the MIP or any other incentive compensation plan in which Executive is then
participating.
(c) Termination Without
Cause. The Company may terminate this Agreement at any time
without Cause, by giving Executive written notice specifying the effective date
of such termination. In the event of a termination without Cause and
provided that Executive and the Company execute (and, if applicable, thereafter
not revoke) a written release in connection with such termination substantially
in the form attached hereto as Annex I (the “Mutual Release”), Executive shall
be entitled to receive (i) Executive’s then-current Base Salary through the
effective date of such termination, (ii) a pro-rated bonus for the portion of
the Company’s fiscal year through the effective date of such termination, which
pro-rated bonus shall be based on applying the level of achievement of the
performance targets (with respect to both Executive and the Companies) to
Executive’s target bonus for the year of such termination payable in a lump sum
at the same time as bonuses are paid to the Company’s senior executives
generally (the “Pro-Rated Bonus”), and (iii) twenty-four (24) months of
Executive’s then current Base Salary payable in a lump sum. For the
purposes of this section, any written notice of non-renewal given by the Company
pursuant to Section 3(a) of this Agreement shall be deemed termination without
Cause. Any
payment to Executive made pursuant hereto shall be paid to Executive no later
than the date that is two and a half months following the calendar year in which
such termination without Cause occurs. In addition, provided that the
Mutual Release has been executed, all unvested shares or portions of any equity
grant not yet vested (including RSUs, SARs, stock options or any other form of
equity or long-term incentive) made by the Company to Executive concurrent with
or subsequent to the execution of the Original Agreement under any equity
compensation plan of the Company (“Unvested Equity Grants”) shall automatically
become fully vested upon termination pursuant to this Section 3(c).
(d) Termination By Executive For
Good Reason. Executive shall be entitled to terminate this
Agreement at any time for “Good Reason” by giving the Company written notice of
such termination. For purposes of this Agreement, “Good Reason” shall
mean (i) the Company has breached its obligations hereunder in any material
respect, (ii) the Company has decreased Executive’s then current Base Salary,
(iii) Executive is directed to relocate Executive’s principal office more than
30 miles from Interlocken Business Park without Executive’s consent, (iv) the
Company has effected a material diminution in Executive’s reporting
responsibilities, authority, or duties as in effect immediately prior to such
change, and/or (v) the occurrence of a Change in Control (as defined below);
provided, however, that
Executive shall not have the right to terminate this Agreement for Good Reason
unless: (A) Executive has provided notice to the Company of any of the foregoing
conditions within 90 days of the initial existence of the condition; (B) the
Company has been given at least 30 days after receiving such notice to cure such
condition (other than if Good Reason is due to a Change in Control); and (C)
Executive actually terminates employment within six months following the initial
existence of the condition. In such event, provided that Executive
and the Company have executed (and, if applicable, thereafter not revoked) the
Mutual Release, Executive shall be entitled to receive (w) Executive’s then
current Base Salary through the effective date of such termination, (x) a
Pro-Rated Bonus, (y) Twenty-Four (24) months of Executive’s then current
Base Salary payable in a lump sum. Any payment to Executive made
pursuant hereto shall be paid to Executive no later than the date that is two
and a half months following the calendar year in which such termination for Good
Reason occurs. In addition, provided that the Mutual Release has been
executed, all Unvested Equity Grants shall automatically become fully vested
upon termination pursuant to this Section 3(d).
(e) Termination By Executive
Without Good Reason. Executive may also terminate this
Agreement at any time without Good Reason by giving the Company at least thirty
(30) days’ prior written notice. In such event, Executive shall be
entitled to receive only Executive’s then-current Base Salary through the date
of termination. Further, Executive acknowledges that in the event of
such a termination without Good Reason, Executive shall not be entitled to
receive any bonus payment for the year of termination or subsequent years under
the MIP or any other incentive compensation plan in which Executive is then
participating.
(f) Termination Due To
Disability. In the event that Executive becomes “Totally and
Permanently Disabled” (as reasonably determined by the Board acting in good
faith), the Company shall have the right to terminate this Agreement upon
written notice to Executive; provided, however, that in the event that Executive
and the Company execute (and, if applicable, thereafter not
revoke) the Mutual Release, Executive shall be entitled to receive
(i) Executive’s then-current Base Salary through the date of such termination,
(ii) a Pro-Rated Bonus, and (iii) Executive’s then-current Base Salary, net of
short term disability payments remitted to Executive by the Company pursuant to
the Company’s Short-Term Disability Plan, through the earlier of (y) the
scheduled expiration date of this Agreement (but in no event less than twelve
(12) months from the date of disability) or (z) the date on which Executive’s
long-term disability insurance payments commence. In addition,
provided that the Mutual Release has been executed, all Unvested Equity Grants
shall automatically become fully vested upon termination pursuant to this
Section 3(f).
(g) Termination Due To
Death. This Agreement shall be deemed automatically terminated
upon the death of Executive. In such event, provided Executive’s
personal representative and the Company execute a release substantially in the
form of the Mutual Release, Executive’s personal representative shall be
entitled to receive (i) Executive’s then-current Base Salary through such date
of termination, and (ii) a Pro-Rated Bonus. In addition, provided
that the Mutual Release has been executed, all Unvested Equity Grants shall
automatically become fully vested upon termination pursuant to this Section
3(g).
(h) Other
Benefits. Upon Executive’s termination pursuant to Sections
3(c) or (d), and, in the event that Executive and the Company execute (and, if
applicable, thereafter not revoke) the Mutual Release, the Company agrees to pay
Executive, in lump sum, one year’s COBRA premiums for continuation of health and
dental coverage in existence at the time of such termination, as determined as
of Executive’s date of termination. This payment will be
remitted to Executive at the same time that Executive is paid pursuant to
Sections 3(c) and (d). Except as expressly set forth in this Section
3, Executive shall not be entitled to receive any compensation or other benefits
in connection with the termination of Executive’s employment.
(i) Termination in Connection
with a Change in Control. In the event of a termination of
Executive’s employment by the Company without Cause or by Executive for Good
Reason or notice by the Company of non-renewal of this Agreement, all within 365
days of a consummation of a Change in Control of the Company and provided that
Executive and the Company execute (and, if applicable, thereafter not revoke)
the Mutual Release, Executive shall be entitled to receive (i) Executive’s
then-current Base Salary through the effective date of such termination or
non-renewal, (ii) a Pro-Rated Bonus, (iii) a lump sum payment equal
to twenty-four (24) months of Executive’s then current Base Salary plus an
amount equal to the cash bonus paid to Executive in the prior calendar year,
payable no later than the date that is two and a half months following the
calendar year in which such termination or non-renewal occurs, and (iv) to the
extent not already vested, full vesting of all Unvested Equity
Grants. 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
Securities Exchange Act of 1934, as amended (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 35% 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 (1) who were members of that Board or equivalent
governing body on the first day of such period, (2) whose election or nomination
to that Board or equivalent governing body was approved by individuals referred
to in clause (1) above constituting at the time of such election or nomination
at least a majority of that Board or equivalent governing body, or (3) whose
election or nomination to that Board or other equivalent governing body was
approved by individuals referred to in clauses (1) and (2) 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 (2) and clause
(3), 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; or (D)the Company sells or transfers (other than by mortgage or
pledge) all or substantially all of its properties and assets to, another
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act).
(j) Provisions of Agreement that
Survive Termination. No termination of this Agreement shall
affect any of the rights and obligations of the parties hereto under Sections 4,
5, 6 and 7, and such rights and obligations shall survive such termination in
accordance with the terms of such sections.
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4.
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Restrictive
Covenants.
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(a) The
provisions of this Section 4 shall apply for a period of two (2) years beginning
with the date of termination of Executive’s employment hereunder for any
reason. During such period, Executive will not, except with the prior
written consent of the Board, directly or indirectly own, manage, operate, join,
control, finance or participate in the ownership, management, operation, control
or financing of, or be connected as an officer, director, employee, partner,
principal, agent, representative, consultant or otherwise with, or use or permit
his name to be used in connection with, any business or enterprise that is
engaged in a "Competing Enterprise," which is defined as an entity whose
operations are conducted within the ski industry in North America or in the real
estate development, lodging or hospitality industries in the State of Colorado.
Notwithstanding the foregoing, Executive may participate, own, finance, manage,
obtain employment or otherwise be connected with a larger regional, national or
international business or enterprise (a "New Employer") which owns or operates a
Competing Enterprise as a brand, branch, division, subsidiary or affiliate
provided that (i) the Competing Enterprise accounts for less than 10% of the New
Employer's annual revenues and annual net income on both a historical or pro
forma basis for the New Employer's most recently completed fiscal year, and (ii)
Executive's duties for the New Employer are not primarily related to the conduct
of such Competing Enterprise.
The
foregoing restrictions shall not be construed to prohibit the ownership by
Executive of less than five percent (5%) of any class of securities of any
corporation which is engaged in any of the foregoing businesses having a class
of securities registered pursuant to the Securities Exchange Act of 1934 (the
"Exchange Act"), provided that such ownership represents a passive investment
and that neither Executive nor any group of persons including Executive in any
way, either directly or indirectly, manages or exercises control of any such
corporation, guarantees any of its financial obligations, otherwise takes any
part in its business (other than exercising his rights as a shareholder), or
seeks to do any of the foregoing.
(b) Further,
Executive covenants and agrees that, during Executive’s employment hereunder and
for the period of two (2) years thereafter, Executive will not, directly or
indirectly solicit for another business or enterprise, or otherwise interfere
with the Company’s relationship with, any person who is a Grade 27 managerial or
higher level employee of any of the Companies at the time of Executive’s
termination.
(c) Executive
acknowledges that the restrictions, prohibitions and other provisions hereof,
are reasonable, fair and equitable in terms of duration, scope and geographic
area; are necessary to protect the legitimate business interests of the Company;
and are a material inducement to the Company to enter into this
Agreement.
(d) In
the event Executive breaches any provision of Section 4, in addition to any
other remedies that the Company may have at law or in equity, Executive shall
promptly reimburse the Company for any severance payments received from, or
payable by, the Company. In addition, the Company shall be entitled
in its sole discretion to offset all or any portion of the amount of any unpaid
reimbursements against any amount owed by the Company to Executive.
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5.
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Document Return;
Resignations.
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(a) Upon
termination of Executive’s employment hereunder for any reason, or upon the
Company’s earlier request, Executive agrees that Executive shall promptly
surrender to the Company all letters, papers, documents, instruments, records,
books, products, data and work product stored on electronic storage media, and
any other materials owned by any of the Companies or used by Executive in the
performance of Executive’s duties under this Agreement.
(b) Upon
termination of Executive hereunder for any reason, Executive agrees that
Executive shall be deemed to have resigned from all officer, director,
management or board positions to which Executive may have been elected or
appointed by reason of Executive’s employment or involvement with the Company,
specifically including but not limited to the Board, the boards of any of the
Companies and any other boards, districts, homeowner and/or industry
associations in which Executive serves as a result of or in his capacity as CEO
(collectively, the “Associations”). Executive agrees to promptly
execute and deliver to the Company or its designee any other document, including
without limitation a letter of resignation, reasonably requested by the Company
to effectuate the purposes of this Section 5(b). If the Company is
unable, after reasonable effort, to secure Executive’s signature on any document
that the Company deems to be necessary to effectuate the purposes of this
Section 5(b), Executive hereby designates and appoints the Company and its duly
authorized officers and agents as Executive’s agent and attorney-in-fact, to act
for and on Executive’s behalf to execute, verify and submit to any appropriate
third party any such document, which shall thereafter have the same legal force
and effect as if executed by Executive.
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6.
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Confidentiality and
Assignment of Intellectual
Property.
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(a) During
Executive’s employment with the Company, and at all times following the
termination of Executive’s employment hereunder for any reason, Executive shall
not use for Executive’s own benefit or for the benefit of any subsequent
employer, or disclose, directly or indirectly, to any person, firm or entity, or
any officer, director, stockholder, partner, associate, employee, agent or
representative thereof, any confidential information or trade secrets of any of
the Companies or the Associations, other than as reasonably necessary to perform
Executive’s duties under this Agreement. As used herein, the term
“confidential information” includes budgets, business plans, strategies,
analyses of potential transactions, costs, personnel data, and other proprietary
information of the Company that is not in the public domain.
(b) For
purposes of this Section 6(b), “Company Inventions” means all ideas, processes,
trademarks and service marks, inventions, discoveries, and improvements to any
of the foregoing, that Executive learns of, conceives, develops or creates alone
or with others during Executive’s employment with the Company (whether or not
conceived, developed or created during regular working hours) that directly or
indirectly arise from or relate to: (i) the Company’s business, products or
services; or (ii) work performed for the Company by Executive or any other
Company employee, agent or contractor; or (iii) the use of the Company’s
property or time; or (iv) access to the Company’s confidential
information. Executive hereby assigns to the Company Executive’s
entire right, title and interest in all Company Inventions, which shall be the
sole and exclusive property of the Company whether or not subject to patent,
copyright, trademark or trade secret protection. Executive also
acknowledges that all original works of authorship that are made by Executive
(solely or jointly with others), within the scope of Executive’s employment with
the Company, and that are protectable by copyright, are “works made for hire,”
as that term is defined in the United States Copyright Act (17
U.S.C. §§ 101, et seq.). To the extent that any such
works, by operation of law, cannot be “works made for hire,” Executive hereby
assigns to Company all right, title, and interest in and to such works and to
any related copyrights. Executive shall promptly execute, acknowledge
and deliver to the Company all additional instruments or documents deemed at any
time by the Company in its sole discretion to be necessary to carry out the
intentions of this paragraph.
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7.
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Non-Disparagement.
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Following
the termination of Executive’s employment hereunder for any reason, Executive
agrees that Executive shall not make any statements disparaging of any of the
Companies, their respective boards, their businesses, and the officers,
directors, stockholders, or employees of any of the Companies or the
Associations. In response to inquiries from prospective employers,
which shall be referred by Executive only to the Senior Vice President of Human
Resources, the Company shall confirm only dates of employment, job title, and
job responsibilities. Subject to the terms of this Section 7,
Executive, as appropriate, may respond truthfully to inquiries from prospective
employers of Executive, and the Company and Executive may respond truthfully as
may be required by any governmental or judicial body acting in its official
capacity.
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8.
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Non-Assignability.
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It is
understood that this Agreement has been entered into personally by the
parties. Neither party shall have the right to assign, transfer,
encumber or dispose of any duties, rights or payments due hereunder, which
duties, rights and payments with respect hereto are expressly declared to be
non-assignable and non-transferable, being based upon the personal services of
Executive, and any attempted assignment or transfer shall be null and void and
without binding effect on either party; provided, however, that the Company may
assign this Agreement to any parent, subsidiary, affiliate or successor
corporation.
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9.
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Injunctive
Relief.
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The
parties acknowledge that the remedy at law for any violation or threatened
violation of Sections 4, 5, 6, 7 and/or 8 of this Agreement may be inadequate
and that, accordingly, either party shall be entitled to injunctive relief in
the event of such a violation or threatened violation without being required to
post bond or other surety. The above stated remedies shall be in
addition to, and not in limitation of, any other rights or remedies to which
either party is or may be entitled at law, in equity, or under this
Agreement.
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10.
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Indemnification.
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The
Company agrees that it shall indemnify and hold harmless Executive in connection
with legal proceedings seeking to impose liability on Executive in such
Executive’s capacity as a director, officer or employee of the Companies to the
fullest extent permitted under the Company’s Amended and Restated Certificate of
Incorporation and Amended and Restated Bylaws. In furtherance
thereof, the Company and Executive each agree to execute and deliver an
Indemnification Agreement by and between the Company and Executive, attached
hereto as Exhibit
A and incorporated herein by reference, concurrently with the execution
and delivery of this Agreement. To the extent any provision set forth
in the Indemnification Agreement is in conflict with any provision set forth in
this Agreement, the provision set forth in the Indemnification Agreement shall
govern. Further, Executive shall be entitled to coverage under the
Directors and Officers Liability Insurance program to the same extent as other
senior executives of the Companies.
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11.
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Complete
Agreement.
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This
Agreement constitutes the full understanding and entire employment agreement of
the parties, and supersedes and is in lieu of any and all other understandings
or agreements between the Company and Executive including the Original Agreement
which is replaced in its entirety. Nothing herein is intended to
limit any rights or duties Executive has under the terms of any applicable
incentive compensation, benefit plan or other similar agreements.
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12.
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Disputes.
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All disputes
relating to or arising from this Agreement and/or Executive’s employment with
the Company shall be resolved, upon written request by either party, by final
and binding arbitration by the Judicial Arbiter Group (“JAG”) in Denver,
Colorado in accordance with the JAMS Streamlined Arbitration Rules and
Procedures as in effect at the time of the arbitration. The JAG
arbitration fees shall be paid equally by the parties
hereto. Arbitration hereunder shall take place before one JAG
arbitrator mutually agreed upon by the parties within 30 days of the written
request for arbitration. If the parties are unable or fail to agree upon
the arbitrator within such time, the parties shall submit a request at the end
of such period to JAG to select the arbitrator within 15 days
thereafter. The arbitration and determination rendered by the JAG
arbitrator shall be final and binding on the parties and judgment may be entered
upon such determination in any court having jurisdiction thereof (and such
judgment enforced, if necessary, through judicial proceedings). It is
understood and agreed that the arbitrator shall be specifically empowered to
designate and award any remedy available at law or in equity, including specific
performance. The arbitrator may award costs and expenses of the
arbitration proceeding (including, without limitation, reasonable attorneys'
fees) to the prevailing party.
|
13.
|
Amendments.
|
Any
amendment to this Agreement shall be made only in writing and signed by each of
the parties hereto.
|
14.
|
Governing
Law.
|
The
internal laws of the State of Colorado law shall govern the construction and
enforcement of this Agreement.
|
15.
|
Notices.
|
Any
notice required or authorized hereunder shall be deemed delivered when
deposited, postage prepaid, in the United States mail, certified, with return
receipt requested, addressed to the parties as follows:
Xxxxxx X.
Xxxx
000 Xxxxxxxx
Xxxxxx
Xxxxxxx, XX,
00000
Vail Resorts,
Inc.
000
Xxxxxxxxxxx Xxxxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000
Attn: General
Counsel
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16.
|
Code Section
409A.
|
Anything
in this Agreement to the contrary notwithstanding, if on the date of termination
of Executive’s employment with the Company, as a result of such termination,
Executive would receive any payment that, absent the application of this Section
16 would be subject to interest and additional tax imposed pursuant to Section
409A(a) of the Internal Revenue Code of 1986, as amended (the “Code”) as a
result of the application of Section 409A(a)(2)(B)(i) of the Code, then no such
payment shall be made prior to the date that is the earliest of (1) 6 months
after the date of termination of Executive’s employment, (2) Executive’s death,
or (3) such other date as will cause such payment not to be subject to such
interest and additional tax.
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17.
|
Excise
Tax.
|
(a) Anything
in this Agreement to the contrary notwithstanding, in the event it shall be
determined that any payment, award, benefit or distribution (including, without
limitation, the acceleration of any payment, award, distribution or benefit), by
the Company or its subsidiaries to or for the benefit of Executive (whether
pursuant to the terms of this Agreement or otherwise, but determined without
regard to any additional payments required under this Section 17) (a ”Payment”)
would be subject to the excise tax imposed by Section 4999 of the Code or any
corresponding provisions of state or local tax law, or any interest or penalties
are incurred by Executive with respect to such excise tax (such excise tax,
together with any such interest and penalties, are hereinafter collectively
referred to as, the “Excise Tax”), then Executive shall be entitled to receive
an additional payment (a “Gross-Up Payment”) in an amount such that after
payment by Executive of all taxes (including any Excise Tax, income tax or
employment tax) imposed upon the Gross-Up Payment and any interest or
penalties imposed with respect to such taxes, Executive retains from the
Gross-Up Payment an amount equal to the excess, if any, of (i) the Excise Tax
imposed upon the Payments, and (ii) the Excise Tax, if any, that would have been
imposed on the Payments if the Executive had not served as a non-employee
director of the Company prior to the Effective Date (and, therefore, Executive’s
non-employee director compensation had not been taken into account in the Excise
Tax computation). The payment of a Gross-Up Payment under this
Section 17(a) shall not be conditioned upon Executive’s termination of
employment. Notwithstanding the foregoing provisions of this Section
17, if it shall be determined that Executive is entitled to a Gross-Up Payment,
but that the portion of the Payments that would be treated as “parachute
payments” under Section 280G of the Code does not exceed the Safe Harbor Amount
(as defined in the following sentence) by more than $100,000, then no Gross-up
Payment shall be made to Executive and the amounts payable under this Agreement
shall be reduced so that the Payments, in the aggregate, are reduced to the Safe
Harbor Amount. The “Safe Harbor Amount” is the greatest amount of
payments in the nature of compensation that are contingent on a Change in
Control for purposes of Section 280G of the Code that could be paid to Executive
without giving rise to any Excise Tax. The reduction of the amounts
payable hereunder, if applicable, shall be made by reducing the cash payments
under Section 3. For purposes of reducing the payments to the Safe
Harbor Amount, only amounts payable under this Agreement (and no other Payments)
shall be reduced. If the reduction of the amounts payable under this
Agreement would not result in a reduction of the Payments to the Safe Harbor
Amount, no amounts payable under this Agreement shall be reduced pursuant to
this Section 17(a).
(b) Subject
to the provisions of Section 17(c), all determinations required to be made under
this Section 17, including the determination of whether a Gross-Up Payment is
required and of the amount of any such Gross-Up Payment, shall be made by the
Company’s independent auditors or such other accounting firm agreed by the
parties hereto (the “Accounting Firm”), which shall provide detailed supporting
calculations to the Company within 15 business days after the receipt of notice
from the Company that Executive has received a Payment, or such earlier time as
is requested by the Company, provided that any determination that an Excise Tax
is payable by Executive shall be made on the basis of substantial
authority. The Company will promptly provide copies of such
supporting calculations to Executive. The Initial Gross-Up Payment,
if any, as determined pursuant to this Section 17(b), shall be paid to Executive
(or for the benefit of the Executive to the extent of the Company’s withholding
obligation with respect to applicable taxes) no later than the later of (i) the
due date for the payment of any Excise Tax, and (ii) the receipt of the
Accounting Firm’s determination. If the Accounting firm determines
that no Excise Tax is payable by Executive, it shall furnish the Company with a
written opinion that substantial authority exists for Executive not to report
any Excise Tax on his Federal income tax return and, as a result, the Company is
not required to withhold Excise Tax from payments to Executive. The
Company will promptly provide a copy of any such opinion to
Executive. Any determination by the Accounting Firm meeting the
requirements of this Section 17(b) shall be binding upon the Company and
Executive. As a result of the uncertainly in the application of
Section 4999 of the Code at the time of the initial determination by the
Accounting Firm hereunder, it is possible that Gross-Up Payments which will not
have been made by the Company should have been made (“Underpayment”), consistent
with the calculations required to be made hereunder. In the event
that the Company exhausts its remedies pursuant to Section 17(c) and Executive
thereafter is required to make a payment of Excise Tax, the Accounting Firm
shall determine the amount of the Underpayment, if any, that has occurred and
any such Underpayment shall be promptly paid by the Company to or for the
benefit of Executive. The fees and disbursements of the Accounting
Firm shall be paid by the Company.
(c) Executive
shall notify the Company in writing of any claim by the Internal Revenue Service
that, if successful, would require the payment by the Company of a Gross-Up
Payment. Such notification shall be given as soon as practicable but
not later than ten business days after Executive receives written notice of such
claim and shall apprise the Company of the nature of such claim and the date on
which such Claim is requested to be paid. Executive shall not pay
such claim prior to the expiration of the 30-day period following the date on
which it gives such notice to the Company (or such shorter period ending on the
date that any payment of taxes with respect to such claim is due). If
the Company notifies Executive in writing prior to the expiration of such period
that it desires to contest such claim, Executive shall:
(i) give the
Company any information reasonably requested by the Company relating to such
claim,
(ii) take such
action in connection with contesting such claim as the Company shall reasonably
request in writing from time to time, including, without limitation, accepting
legal representation with respect to such claim by an attorney reasonably
selected by the Company,
(iii) cooperate
with the Company in good faith in order effectively to contest such claim,
and
(iv) permit
the Company to participate in any proceedings relating to such claim; provided, however,
that the Company shall bear and pay directly all costs and expenses (including
additional interest and penalties) incurred in connection with such contest and
shall indemnify and hold Executive harmless, on an after-tax basis, for any
Excise Tax, income tax or employment tax, including interest and penalties with
respect thereto, imposed as a result of such representation and payment of costs
and expenses. Without limitation on the foregoing provisions of this
Section 17(c), the Company shall control all proceedings taken in connection
with such contest and, at its sole option, may pursue or forgo any and all
administrative appeals, proceedings, hearings and conferences with the taxing
authority in respect of such claim and may, at its sole option, either direct
Executive to pay the tax claimed and xxx for a refund or contest the claim in
any permissible manner, and Executive agrees to prosecute such contest to a
determination before any administrative tribunal, in a court of initial
jurisdiction and in one or more appellate courts, as the Company shall
determine; provided,
however, that if the Company directs Executive to pay such claim and xxx
for a refund, the Company shall advance the amount of such payment to Executive
on an interest-free basis and shall indemnify and hold Executive harmless, on an
after-tax basis, from any Excise Tax, income tax or employment tax, including
interest or penalties with respect thereto, imposed with respect to such advance
(except that if such a loan would not be permitted under applicable law, the
Company may not direct Executive to pay the claim and xxx for a refund); and
further provided
that any extension of the statute of limitations relating to the payment
of taxes for the taxable year of Executive with respect to which such contested
amount is claimed to be due is limited solely to such contested
amount. Furthermore, the Company’s control of the contest shall be
limited to issues with respect to which a Gross-Up Payment would be payable
hereunder and Executive shall be entitled to settle or contest, as the case may
be, any other issue raised by the Internal Revenue Service or any other taxing
authority.
(d) If,
after the receipt by Executive of an amount advanced by the Company pursuant to
Section 17(c), Executive becomes entitled to receive any refund with respect to
such claim, Executive shall (subject to the Company’s complying with the
requirements to Section 17(c)) promptly pay the Company the amount of such
refund (together with any interest paid or credited thereon after taxes
applicable thereto). If, after the receipt by Executive of an amount
advanced by the Company pursuant to Section 17(c), a determination is made that
Executive shall not be entitled to any refund with respect to such claim and the
Company does not notify Executive in writing of its intent to contest such
denial of refund prior to the expiration of 30 days after such determination,
then such advance shall be forgiven and shall not be required to be repaid and
the amount of such advance shall offset, to the extent thereof, the amount of
the Gross-Up Payment required to be paid.
|
18.
|
No Duty to
Mitigate.
|
Executive
shall not be required to mitigate damages or the amount of any payment provided
for under this Agreement by seeking other employment or otherwise, nor will any
payments hereunder be subject to offset in the event Executive does
mitigate.
|
19.
|
Binding
Effect.
|
This
Agreement shall be binding upon and inure to the benefit of the parties and
their respective successors, permitted assigns, heirs, executors and legal
representatives.
|
20.
|
Counterparts.
|
This
Agreement may be executed by the parties hereto in separate counterparts, each
of which when so executed and delivered shall be an original but all such
counterparts together shall constitute one and the same
instrument. Each counterpart may consist of two copies hereof each
signed by one of the parties hereto.
|
21.
|
Construction.
|
Headings
in this Agreement are for convenience only and shall not control the meaning of
this Agreement. Whenever applicable, masculine and neutral pronouns
shall equally apply to the feminine genders; the singular shall include the
plural and the plural shall include the singular. The parties have
reviewed and understand this Agreement, and each has had a full opportunity to
negotiate this Agreement’s terms and to consult with counsel of their own
choosing. Therefore, the parties expressly waive all applicable
common law and statutory rules of construction that any provision of this
Agreement should be construed against this Agreement’s drafter, and agree that
this Agreement and all amendments thereto shall be construed as a whole,
according to the fair meaning of the language used.
|
22.
|
Severability and
Modification by Court.
|
If any
court of competent jurisdiction declares any provision of this Agreement invalid
or unenforceable, the remainder of this Agreement shall remain fully
enforceable. To the extent that any such court concludes that any
provision of this Agreement is void or voidable, the court shall reform such
provision(s) to render the provision(s) enforceable, but only to the extent
absolutely necessary to render the provision(s) enforceable and only in view of
the parties’ express desire that the Company be protected to the greatest extent
allowed by law from unfair competition, unfair solicitation and/or the misuse or
disclosure of its confidential information and records containing such
information.
[Signature
Page to follow.]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
of the date first written above.
VAIL
RESORTS, INC.
By: /s/ Xxxxxxx X.
Jones__________________
Name:
Xxxxxxx X. Xxxxx
Title:
Senior Executive Vice President and Chief Financial Officer
EXECUTIVE:
/s/ Xxxxxx X.
Katz______________________
Xxxxxx X.
Xxxx
Annex
I
MUTUAL
RELEASE
This
mutual release (this “Release”) is entered into as of this _____________ day of
_____________, 20___ (the “Release Date”) by _______________ (“Employee”), on
the one hand and Vail Resorts, Inc. (“VRI”) on the other hand.
1. Reference
is hereby made to Executive Employment Agreement, dated __________, 20__ (the
“Executive Employment Agreement”) by the parties hereto setting forth the
agreements among the parties regarding the termination of the employment
relationship between Employee and VRI. Capitalized terms used but not
defined herein have the meanings ascribed to them in Executive Employment
Agreement.
2. Employee,
for him, his spouse, heirs, executors, administrators, successors, and assigns,
hereby releases and discharges VRI and its respective direct and indirect
parents and subsidiaries, and other affiliated companies, and each of their
respective past and present officers, directors, agents and employees, from any
and all actions, causes of action, claims, demands, grievances, and complaints,
known and unknown, that Employee or his spouse, heirs, executors,
administrators, successors, or assigns ever had or may have at any time through
the Release Date. Employee acknowledges and agrees that this Release
is intended to and does cover, but is not limited to: (i) any claim of
employment discrimination of any kind whether based on a federal, state, or
local statute or court decision, including the Age Discrimination in Employment
Act with appropriate notice and rescission periods observed; (ii) any claim,
whether statutory, common law, or otherwise, arising out of the terms or
conditions of Employee’s employment and/or Employee’s separation from VRI
including, but not limited to, any claims in the nature of tort or contract
claims, wrongful discharge, promissory estoppel, intentional or negligent
infliction of emotional distress, and/or breach of covenant of good faith and
fair dealing. The enumeration of specific rights, claims, and causes
of action being released shall not be construed to limit the general scope of
this Release. It is the intent of the parties that, by this Release,
Employee is giving up all rights, claims and causes of action occurring prior to
the Release Date, whether or not any damage or injury therefrom has yet
occurred. Employee accepts the risk of loss with respect to both
undiscovered claims and with respect to claims for any harm hereafter suffered
arising out of conduct, statements, performance or decisions occurring before
the Release Date.
3. VRI
hereby releases and discharges Employee, his spouse, heirs, executors,
administrators, successors, and assigns, from any and all actions, causes of
actions, claims, demands, grievances and complaints, known and unknown, that VRI
ever had or may have at any time through the Release Date. VRI
acknowledges and agrees that this Release is intended to and does cover, but is
not limited to: (i) any claim, whether statutory, common law, or otherwise,
arising out of the terms or conditions of Employee’s employment and/or
Employee’s separation from VRI, and (ii) any claim for attorneys’ fees,
costs, disbursements, or other like expenses. The enumeration of
specific rights, claims, and causes of action being released shall not be
construed to limit the general scope of this Release. It is the
intent of the parties that, by this Release, VRI is giving up all of its
respective rights, claims, and causes of action occurring prior to the Release
Date, whether or not any damage or injury therefrom has yet
occurred. VRI accepts the risk of loss with respect to both
undiscovered claims and with respect to claims for any harm hereafter suffered
arising out of conduct, statements, performance or decisions occurring before
the Release Date.
4. This
Release shall in no event (i) apply to any claim by either Employee or VRI
arising from any breach by the other party of its obligations under Executive
Employment Agreement occurring on or after the Release Date, (ii) waive
Employee’s claim with respect to compensation or benefits earned or accrued
prior to the Release Date to the extent such claim survives termination of
Employee’s employment under the terms of Executive Employment Agreement, or
(iii) waive Employee’s right to indemnification under the by-laws of the
Company.
5. Enforceability of
Release:
|
|
(a)
|
You
acknowledge that you have been advised to consult with an attorney before
signing this Release.
|
|
(b)
|
You
acknowledge the adequacy and sufficiency of the consideration outlined in
Executive Employment Agreement for your promises set forth in this Release
and that the Company is not otherwise obligated to pay such
sums.
|
|
|
(c)
|
You
acknowledge that you have been offered at least twenty-one (21) days to
consider this Release, that you have read Executive Employment Agreement
and this Release, and understand its terms and significance, and that you
have executed this Release and with full knowledge of its effect, after
having carefully read and considered all terms of this Release and, if you
have chosen to consult with an attorney, your attorney has fully explained
all terms and their significance to
you.
|
|
(d)
|
You
hereby certify your understanding that you may revoke this Release, as it
applies to you, within seven (7) days following execution of this Release
and that this Release shall not become effective or enforceable until that
revocation period has expired. Any revocation should be sent,
in writing, to Vail Resorts, Inc., 000 Xxxxxxxxxxx Xxxxxxxx, Xxxxxxxxxx,
Xxxxxxxx 00000, Attn: Office of the General
Counsel. You also understand that, should you revoke this
Release within the seven-day period, this Release, as it applies to you,
would be voided in its entirety and the sums set forth in Executive
Employment Agreement would not be paid or owed to
you.
|
6. This
Mutual Release shall be effective as of the eighth day following the Release
Date and only if executed by both parties.
IN
WITNESS WHEREOF, each party hereto, intending to be legally bound, has executed
this Mutual Release on the date indicated below.
XXXXXX X.
XXXX VAIL
RESORTS, INC.
_________________________________ By:_________________________________
Date:______________________________ Date:_______________________________
