SEPARATION AGREEMENT AND GENERAL RELEASE
This
Separation Agreement and General Release (referred to as the “Agreement”) dated
as of February 27, 2006, is by and between Xxxx
X. Xxxx
(referred to as the “EXECUTIVE”) and Vail
Resorts, Inc.
(referred to as the “COMPANY”). The EXECUTIVE and the COMPANY may be referred to
collectively as the “Parties”.
WHEREAS,
the EXECUTIVE is the Chairman of the Board of Directors and the Chief Executive
Officer of the COMPANY; and
WHEREAS,
the EXECUTIVE and the COMPANY agree that on the EXECUTIVE’S Final Date of
Employment, as hereinafter defined, the EXECUTIVE will no longer perform
services as an employee of the COMPANY or its subsidiaries, will no longer
be a
member of the Board of Directors of the COMPANY or its subsidiaries, and will
cease to be eligible to participate in benefit plans for active employees of
the
COMPANY; and
WHEREAS,
the EXECUTIVE has served the COMPANY for almost a decade; and
WHEREAS,
the EXECUTIVE acknowledges that, as of the Final Date of Employment, he has
no
entitlement to continued pay or benefits under the Employment Agreement between
the EXECUTIVE and the COMPANY dated as of July 29, 1996, as amended (the
“Employment Agreement”); and
WHEREAS,
the COMPANY wishes to provide the EXECUTIVE with equitable compensation,
notwithstanding his resignation, to compensate him for his service and the
EXECUTIVE’S assistance in providing the COMPANY with an orderly transition of
management; and
WHEREAS,
the COMPANY, therefore, wishes to pay the EXECUTIVE the amounts set forth
herein, less statutory and authorized deductions;
In
consideration of the mutual promises contained in this Agreement, the COMPANY
and the EXECUTIVE agree as follows:
1. As
used
herein, the following terms, when capitalized, shall have the following
meanings:
(a) “Companies”
shall mean the COMPANY and all of its subsidiaries and controlled
affiliates.
(b) “Confidential
Information” shall mean budgets, business plans, financial projections, terms of
transactions under consideration, strategies, financial statements and results,
plans or drawings, lease terms, customer lists and information, prospect lists,
club membership rolls, trade secrets, and other information, whether in tangible
or electronic media format, pertaining to the business and operations of the
Companies. In addition, without in any way limiting the foregoing, Confidential
Information includes any and all information in the EXECUTIVE’S possession or of
which the EXECUTIVE has knowledge relating to or arising out of any actual
or
threatened regulatory investigation or proceeding or settlement or any other
litigation, claim, investigation, suit, action or other proceeding involving
or
relating to the Companies, whether such investigation,
or
proceeding, settlement, claim, litigation, suit, action or other proceeding
or
the EXECUTIVE’S knowledge thereof occurred or was obtained during or prior to or
after the term of the EXECUTIVE’S employment by the COMPANY. Confidential
Information does not include any information which is generally available to
the
public or hereafter becomes available to the public without the fault of the
EXECUTIVE, and it shall not include club membership rolls sent to the EXECUTIVE
in his capacity as a member of the applicable club, provided that the EXECUTIVE
agrees that he will use such club membership rolls only in accordance with
the
rules and regulations of the applicable club.
(c) “Constituting
Documents” shall mean the articles or certificates of incorporation, bylaws, or
similar organizational documents for each of the Companies.
(d) “Final
Date of Employment” shall mean February 27, 2006.
(e) “Legal
Proceeding” shall mean any claim, demand, pending or threatened legal,
regulatory or administrative proceeding and any other action of any nature,
whether known or unknown.
(f) “Released
Person” shall mean each of the Companies, and any of their current and former
officers, directors, employees, shareholders, partners, members, agents,
representatives, legal representatives, accountants, and their successors and
assigns.
2. The
employment relationship between the EXECUTIVE and the COMPANY will terminate
on
the Final Date of Employment. This Agreement shall constitute the EXECUTIVE’S
resignation from the Board of Directors of the COMPANY and all other officer,
director and employee positions with the Companies, in each case effective
on
the Final Date of Employment. The parties hereto acknowledge that, following
the
Final Date of Employment, the EXECUTIVE shall not be considered an executive
officer of the COMPANY.
3. In
consideration for the EXECUTIVE entering into this Agreement:
(a) conditioned
on the execution and non-revocation, pursuant to Section 14 hereof, of this
Agreement, the
COMPANY agrees to pay the
EXECUTIVE,
on
August 31, 2006 the
sum
of $1,508,795 and
on
September 30, 2006,
the
sum
of $1,141,000,
in each
case less statutory and authorized deductions; and
(b) the
COMPANY agrees to pay the
EXECUTIVE,
on
March 3, 2006, full payment of
any
amount owing to the EXECUTIVE in respect of base salary
for the period through February 27, 2006, as well as accrued
and unused paid time off,
less a
pro-rated Mandatory Time Off deduction, through such date (as reflected on
the
human resources records of the COMPANY).
4. In
addition to that set forth in Section 3 above, the following shall be applicable
as a result of
the
EXECUTIVE’S separation:
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(a) After
the
Final Date of Employment: (i) the EXECUTIVE shall neither accrue salary nor
paid
time off nor participate in (A) COMPANY Medical and Dental Plans (other
than as required under COBRA at the EXECUTIVE’S sole expense), (B) Short
Term or Long Term Disability Insurance, (C) COMPANY sponsored Life or ADD
insurance programs, or (D) any other compensation or benefit plans,
programs or arrangements maintained or contributed to by any of the Companies;
(ii) he shall have no right to make contributions or earn COMPANY Matching
Contributions in the COMPANY’S 401(k) Plan (except
for any COMPANY Matching Contributions due but not yet made or for any excess
EXECUTIVE or COMPANY contributions, and attributable earnings, to be refunded
to
him for fiscal year 2005);
and
(iii) except as otherwise provided in Sections 4(f) and 5 below, he shall no
longer be entitled to any perquisites made available to active executives or
employees of the COMPANY, including, but not limited to parking or the use
of
COMPANY owned and promotional vehicles. The EXECUTIVE’S rights with respect to
his accrued benefits, as of the Final Date of Employment, under the COMPANY’S
401(k) Plan will be as set forth in the applicable plan documents, and any
conversion or continuation right the EXECUTIVE may have under any other COMPANY
employee benefit plan will be as set forth in the applicable plan document
and
shall be at his sole expense. Other than as expressly set forth in this
Agreement, the EXECUTIVE will have no continuing rights under any employee
benefit plan or arrangement of the Companies following the Final Date of
Employment.
(b) The
EXECUTIVE shall not be eligible to earn and receive a bonus award for fiscal
year 2006.
(c) Any
stock
options, restricted stock or other equity-based compensation awards held by
the
EXECUTIVE that are not vested and, in the case of stock options, exercisable
as
of the EXECUTIVE’S Final Date of Employment will be immediately cancelled and
forfeited.
(d) Notwithstanding
anything in this or another document to the contrary, all vested
options to purchase stock of the COMPANY held by the EXECUTIVE after the Final
Date of Employment (each of which is listed on Annex A hereto) shall continue
to
be exercisable until May 28, 2006 (but in no event beyond the full term of
the
option). Any such options that are not exercised by May 28, 2006 shall
be forfeited.
(e) The
COMPANY shall reimburse the EXECUTIVE for reasonable expenses incurred by him
in
the course of performing his duties with the COMPANY prior to the Final Date
of
Employment (or expenses specifically authorized in advance by the COMPANY in
connection with his performance of any services requested of him by the COMPANY
pursuant to Section 7(a) below), so long as such expenses were incurred in
compliance with the COMPANY’S policies with respect to travel, entertainment and
other business expenses, and the EXECUTIVE has complied with the COMPANY’S
requirements with respect to submitting, reporting and documentation of such
expenses. In
addition, the EXECUTIVE may use a credit of the COMPANY at the Mirabelle
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restaurant
toward expenses incurred for the March 20, 2006 Executive Committee Dinner
now
scheduled to be held in his residence.
(f) For
the
period through the end of the 2006 ski season the EXECUTIVE and his immediate
family members shall continue to have ski privileges and ski school privileges
equivalent to those given to non-employee members of the Board of Directors
of
the COMPANY.
(g) For
the
period through August 28, 2006, the COMPANY shall maintain (i) an appropriate
forwarding message recorded by the EXECUTIVE and approved by the COMPANY on
voicemail for the EXECUTIVE’S former COMPANY telephone number, and (ii) an
autoresponse on the email address xxxxx@xxxxxxxxxxx.xxx with an appropriate
forwarding email response created by the EXECUTIVE and approved by the COMPANY.
In addition, through August 28, 2006, the Company shall forward to the
EXECUTIVE, at an address he may reasonably provide from time to time, any first
class mail addressed to the EXECUTIVE at the COMPANY’s offices which the COMPANY
determines is his personal mail.
(h) The
COMPANY shall pay the EXECUTIVE’S
reasonable legal fees and expenses (not to exceed $12,500) incurred by him
in
negotiating and executing this Agreement.
5. The
COMPANY further agrees that the EXECUTIVE shall retain the following club
memberships previously vested in the EXECUTIVE in connection with his employment
with the COMPANY: (i) one transferable charter membership in the Beaver Creek
Club which
shall carry a value as if the EXECUTIVE paid a $60,000 cash initiation fee
for
such membership, (ii) two transferable
memberships in the Red Sky Ranch Golf Club which
shall carry a value as if the EXECUTIVE paid a $175,000 cash initiation fee
for
each such membership,
and
(iii) one nontransferable honorary membership in the Game Creek Club. After
September 26, 2006 (May 1, 2006 in the case of the Beaver Creek Club), the
EXECUTIVE will be responsible for payment of all annual dues, fees and
assessments and shall assume all obligations relating to such club memberships
held by the EXECUTIVE. The EXECUTIVE may transfer his
Beaver Creek Club membership to the purchaser of his Beaver Creek home, or
may
otherwise resign the membership per the standard terms of the Beaver Creek
Club.
The EXECUTIVE may transfer
one or
both of the Red Sky Ranch Golf Club memberships if and when and to whom the
lot
purchased by the EXECUTIVE in the Red Sky Ranch golf community pursuant to
his
employment agreement with the Company is sold, without restriction by the Red
Sky Ranch Club and with no membership initiation fee or transfer fee being
owed,
or
the
EXECUTIVE may otherwise resign such memberships per the standard terms of the
Red Sky Ranch Golf Club, except that if he resigns from one or both of his
Red
Sky Ranch Golf Club memberships, the amount refunded to the EXECUTIVE following
the resale of his memberships after such resignation shall be $175,000 per
membership.
6. (a)
In
return for the consideration and other promises by the COMPANY set forth in
this
Agreement, the EXECUTIVE for himself and his representatives, heirs, and
assigns, hereby releases and discharges each of the Released Persons from all
Legal Proceedings, known or unknown, that he may have against any of the
Released Persons, including, but not limited to,
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claims
that in any manner relate to, arise out of or involve any aspect of his
employment with the COMPANY, and his separation from that employment, including,
but not limited to, any rights or claims under the Federal Worker Adjustment
and
Restraining Xxxxxxxxxxxx Xxx, 00 X.X.X. §0000 et seq.;
the
Colorado Anti-Discrimination Act, Colo. Rev. Stat. §00-00-000, et seq.;
the
Family and Medical Leave Act, 29 U.S.C. §2601 et seq.;
the
Age Discrimination in Xxxxxxxxxx Xxx, 00 X.X.X. §000 et seq.;
the
Civil Rights Act of 1964, as amended, 42 U.S.C., §2000e, et seq.;
the
Americans with Xxxxxxxxxxxx Xxx, 00 X.X.X. §00000, et seq.;
the
Xxxxxxxx-Xxxxx Act of 2002, 18 U.S.C. §800 et seq.;
Executive Order 11246; the Civil Rights Act of 1866, as reenacted, 42 U.S.C.
§1981; and any and all other municipal, state, and/or federal statutory,
executive order, or constitutional provisions pertaining to an employment
relationship. This release and waiver also specifically includes, but is not
limited to, any Legal Proceedings in the nature of tort or contract claims,
including specifically claims of wrongful discharge, breach of contract,
promissory estoppel, intentional or negligent infliction of emotional distress,
interference with contract, libel, slander, breach of covenant of good faith
and
fair dealing, or other such claims, including, but not limited to, those arising
out of or involving any aspect of his employment or separation from employment
with the COMPANY. Except as provided in Section 4(h) above, this release
includes any and all claims seeking attorney fees, costs, and other expenses
related to the claims released herein.
However,
this release and waiver shall not apply to: (i) any rights which, by law, may
not be waived; (ii) rights and claims that arise from acts or events occurring
after the effective date of this Agreement; (iii) claims with respect to the
EXECUTIVE’S accrued benefits, as of the Final Date of Employment, under the
COMPANY’S 401(k) Plan which will be as set forth in the applicable plan
documents, or any conversion or continuation right the EXECUTIVE may have under
any other COMPANY employee benefit plan which will be as set forth in the
applicable plan document and shall be at his sole expense; (iv) rights to
indemnification or advancement of expenses under the Amended and Restated
Certificate of Incorporation and Amended and Restated Bylaws of the COMPANY;
(v)
rights as a shareholder of the COMPANY; (vi) rights under an executory purchase
and sale agreement for real estate, and rights as an owner of real estate,
in
either case constructed and sold by the COMPANY as to which the EXECUTIVE is
the
purchaser; or (vi) claims for breach by the COMPANY of this
Agreement.
The
EXECUTIVE also specifically covenants and represents that he has not and will
not bring suit or file any charge, grievance or complaint, of any nature in
relation to any claim or right waived herein, against the Released
Persons.
SUMMARY
OF RELEASE AND WAIVER OF CLAIMS:
Please read the three immediately preceding paragraphs carefully and have them
explained to you by your attorney. In summary, what the paragraphs say and
what
you, the EXECUTIVE, agree to do by executing this Agreement is to give up your
right to pursue any legal claim that you might have against the COMPANY (Vail
Resorts, Inc.) and related companies (including Vail Resorts Development
Company, The Vail Corporation and Vail Summit Resorts, Inc.), their current
and
former, officers, directors, shareholders, agents, and/or employees. It applies
whether or not you are aware of the claims. It applies to claims that arose
(meaning the important facts and occurrences which create or support the claim
happened) at any time up to and including the time of your execution of this
Agreement. It does not apply to any claims that might arise (meaning that the
important facts or occurrences that
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create
or support the claim happen) after the date of execution of this Agreement.
As
stated above, the release and waiver includes, but is not limited to, any and
all claims arising from your employment or your separation from employment
with
the COMPANY. Such claims would include claims of employment discrimination
or
wrongful discharge and claims arising under any federal, state, and local laws,
including, but not limited to, those listed by name above. Once you have entered
into this Agreement, you will have agreed not to seek to bring those claims
in a
court or other forum at any time in the future. In effect, you are exchanging
your right to bring or pursue those claims, whether they are worth anything
or
not, for the actions to be taken for your benefit by the COMPANY and other
promises in this Agreement.
(b) In
return
for the consideration and other promises by the EXECUTIVE set forth in this
Agreement, the Companies hereby release and discharge the EXECUTIVE, and his
representatives, heirs and assigns (the “EXECUTIVE Released Persons”) from all
Legal Proceedings, known or unknown, that they may have against any of the
the
EXECUTIVE Released Persons, including but not limited to, claims that in any
manner relate to, arise out of or involve any aspect of the EXECUTIVE’S
employment with the COMPANY, and his separation from that employment. This
release and waiver also specifically includes, but is not limited to, any Legal
Proceedings in the nature of tort or contract claims, including specifically
claims of wrongful discharge, breach of contract, promissory estoppel,
intentional or negligent infliction of emotional distress, interference with
contract, libel, slander, breach of covenant of good faith and fair dealing,
or
other such claims, including, but not limited to, those arising out of or
involving any aspect of his employment or separation from employment with the
COMPANY. This release includes any and all claims seeking attorney fees, costs,
and other expenses related to the claims released herein. However,
this release and waiver shall not apply to: (i) any rights which, by law, may
not be waived; (ii) rights and claims that arise from acts or events occurring
after the effective date of this Agreement; (iii)
rights
under any executory purchase and sale agreement for real estate constructed
and
sold by the COMPANY as to which the EXECUTIVE is the purchaser, and
(iv)
claims
for breach of any provision of this Agreement by the EXECUTIVE.
The
Companies also specifically covenant and represent that they have not and will
not bring suit or file any charge, grievance or complaint, of any nature in
relation to any claim or right waived herein against the EXECUTIVE.
(c)
The
parties acknowledge the continuing validity, after the Final Date of Employment,
of the Undertaking for Advancement of Expenses dated October 15, 2004 (the
“Undertaking”) and of any right or claims that the COMPANY or any of the other
Companies, as applicable, may have or assert in accordance with the Undertaking,
the Amended and Restated Certificate of Incorporation and Amended and Restated
Bylaws of the COMPANY, or other Constituting Documents applicable to the
EXECUTIVE, for reimbursement of attorneys’ fees, indemnity sums, or any other
sums paid or incurred in the EXECUTIVE’S defense by the COMPANY, or any of the
Companies, in connection with any Legal Proceeding.
7. The
EXECUTIVE agrees to the following:
(a) The
EXECUTIVE shall cooperate
with and assist the COMPANY whenever reasonably possible, when reasonably
requested to do so by the COMPANY
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through
December 31, 2006, so that all of the EXECUTIVE’S duties, responsibilities and
pending matters can be transferred in an orderly way.
(b) The
EXECUTIVE shall remove all of his personal possessions from his office by no
later than March 31, 2006, provided that the EXECUTIVE shall not return to
his
office after the Final Date of Employment other than at such time agreed to
by
the COMPANY in order to remove his personal possessions. The
EXECUTIVE shall return
all COMPANY materials that may have been issued to the EXECUTIVE, including,
but
not limited to, keys, written or electronic Confidential Information, and credit
cards, and to promptly file any outstanding final expense report; provided,
however,
that
EXECUTIVE will be entitled to retain his laptop computer and
related home docking station. The EXECUTIVE shall pay Vailnet for its high-speed
ISP service to his residence commencing as of the Final Date of
Employment.
Subject
to compliance with his obligations herein with respect to the use and disclosure
of Confidential Information, the EXECUTIVE will be entitled to retain his
electronic rolodex and schedule.
(c) The
EXECUTIVE shall not
use or
disclose to anyone not connected with the COMPANY, or use for his own benefit
or
that of third parties, any Confidential Information or trade secrets that the
EXECUTIVE obtained during his employment with the COMPANY, except as required
in
any judicial or administrative proceeding.
(d) The
EXECUTIVE shall not
make any
copies for his own use or for the benefit of unrelated third parties, of any
prospect lists, any memoranda, books, records, or documents, whether in tangible
or electronic media form, which contain Confidential Information or trade
secrets belonging to the COMPANY, except as required in any judicial or
administrative proceeding.
(e) For
the
period through the first anniversary of the Final Date of Employment, the
EXECUTIVE will not, except with the prior written consent of the Board of
Directors of the COMPANY, 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, the 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) the 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 the 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
-7-
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 the EXECUTIVE nor any group of persons including the 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.
(f) The
EXECUTIVE further covenants and agrees that through the first anniversary of
the
Final Date of Employment, the EXECUTIVE will not solicit for another business
or
enterprise any person who is a managerial or higher level employee of the
Company at the time of the EXECUTIVE’S termination.
(g) The
EXECUTIVE agrees that, through June 28, 2006, he will not (and he will direct
his immediate family to not) make any public statements (whether positive or
negative) with respect to any of the Companies unless prior written approval
of
the statement is given to the EXECUTIVE by a successor Chief Executive Officer
of the COMPANY.
For the
purposes hereof, “Public Statements” shall mean statements, written, electronic
or oral, given to any media person or outlet, to securities analysts, to persons
known to the EXECUTIVE to be shareholders of the COMPANY or made to a group
of 4
or more people or statements made under circumstances where it is reasonable
to
believe that they would become public. Public Statements shall not include
private conversations to persons not just described unless statements are made
under circumstances where it is reasonable to believe that they would become
public.
In
addition, for a period of five years after the Final Date of Employment, the
EXECUTIVE agrees that he shall not make any statements, public or private,
disparaging of the COMPANY or other Companies, the Board, or the officers,
directors, stockholders, or employees of the COMPANY or other Companies. The
Companies shall similarly not disparage, and the COMPANY shall direct its
executive officers to (and request that its directors) similarly not disparage,
the EXECUTIVE for a period of five years following the Final Date of Employment.
Notwithstanding any of the foregoing in this subsection, the parties may respond
truthfully to inquiries from governmental agencies or from the prospective
employers of the EXECUTIVE. Similarly, nothing in this Agreement is intended
to
prevent either party from seeking to enforce the provisions of this Agreement
through appropriate proceedings.
The
parties acknowledge that the COMPANY retains the right, together with any other
legal remedy the COMPANY may have, to discontinue the payments and benefits
described in Sections 3 or 4, at any time upon written notice to the EXECUTIVE,
in the event that the COMPANY determines, in good faith, that (i) the EXECUTIVE
is violating or has violated any of the obligations of Sections 7(e), (f) or
(g)
above, or (ii) the EXECUTIVE is violating in any material respect or has
violated in any material respect any of the obligations of Sections 7(a), (b),
(c) or (d) above. In
such
an event, the EXECUTIVE may seek a determination, pursuant to the provisions
of
Section 15 below, that such action by the COMPANY was not justified and should
be remedied. Nothing
in this Agreement shall prohibit or restrict the EXECUTIVE from testifying
truthfully as may be required by the Securities and Exchange Commission or
other
governmental or judicial body acting in its official capacity.
-8-
8. The
EXECUTIVE acknowledges and agrees that the restrictions contained in Section
7
(c)-(g) are reasonable and necessary to protect and preserve the legitimate
interests, properties, goodwill and business of the COMPANY, that the COMPANY
would not have entered into this Agreement in the absence of such restrictions
and that irreparable injury will be suffered by the COMPANY should the EXECUTIVE
breach any of such provisions. The EXECUTIVE further acknowledges and agrees
that a breach of any of such restrictions cannot be adequately compensated
by
monetary damages. The EXECUTIVE agrees that the COMPANY shall be entitled to
preliminary and permanent injunctive relief, without the necessity of proving
actual damages, as well as an equitable accounting of all earnings, profits
and
other benefits arising from any violation of such restrictions, which rights
shall be cumulative and in addition to any other rights or remedies to which
the
COMPANY may be entitled. In the event that any of such restrictions should
ever
be adjudicated to exceed the time, geographic, service, or other limitations
permitted by applicable law in any jurisdiction, it is the intention of the
parties that the provision shall be amended to the extent of the maximum time,
geographic, service, or other limitations permitted by applicable law, that
such
amendment shall apply only within the jurisdiction of the court that made such
adjudication and that the provision otherwise be enforced to the maximum extent
permitted by law.
9. The
entry
into this Agreement by the Parties is not and shall not be construed to be
an
admission of any act, practice or policy by the COMPANY in violation of any
statute, common law duty, constitution, or administrative rule or regulation.
Further, this Agreement shall not constitute evidence of any such proscribed
or
wrongful act, practice or policy by the COMPANY.
10. The
Parties agree that this Agreement shall not be tendered or admissible as
evidence in any proceeding by either Party for any purpose, except in a
proceeding involving one or both of the Parties in which this Agreement or
any
part of this Agreement, an alleged breach of this Agreement, the enforcement
of
this Agreement, and/or the validity of any term of this Agreement is at
issue.
11. The
COMPANY advises the EXECUTIVE to consult an attorney before signing this
Agreement, and the EXECUTIVE acknowledges that he has consulted an attorney
before signing this Agreement.
12. The
EXECUTIVE acknowledges the adequacy and sufficiency of the consideration for
his
promises set forth in this Agreement. The EXECUTIVE is estopped from raising,
and hereby expressly waives any defense regarding the receipt and/or legal
sufficiency of the consideration provided under this Agreement.
13. The
EXECUTIVE hereby acknowledges his understanding that, had he wished to do so,
he
could have taken up to twenty-one (21) days to consider this Agreement, that
he
has read this Agreement and understands its terms and significance, and that
he
executes this Agreement voluntarily and with full knowledge of its effect,
having carefully read and considered all terms of this Agreement and, if he
has
chosen to consult with an attorney, having had all terms and their significance
fully explained to him by his attorney.
-9-
14. The
EXECUTIVE understands that he may revoke this Agreement, as it applies to him,
within seven (7) days following execution of this Agreement and that this
Agreement, as it applies to him, shall not become effective or enforceable
until
that revocation period has expired. Any such revocation must be effected by
delivery of a written notification of revocation of the Agreement to the General
Counsel of the COMPANY prior to the end of such 7 day revocation period. In
the
event that the Agreement is revoked by the EXECUTIVE, the COMPANY shall have
no
obligations under the Agreement, no amounts will be payable under this
Agreement, and this Agreement shall be deemed to be void ab initio and of no
further force or effect.
15. Any
controversy or claim arising out of, or relating to, this Agreement, or its
breach, shall be governed by the laws of the State of Colorado, without giving
effect to the principles of conflict of laws thereof, and shall be resolved
by
final and binding arbitration, in accordance with the rules for contractual
disputes then applicable, of the Judicial Arbiter Group, Denver, Colorado,
and
judgment on the award rendered may be entered in any court having
jurisdiction.
16. The
EXECUTIVE shall be responsible for paying all income taxes attributable to
payments and benefits received under this Agreement, and all payments and
benefits provided to the EXECUTIVE shall be net of applicable income, employment
or other taxes required to be withheld therefrom.
17. This
Agreement represents the complete agreement between the EXECUTIVE and the
COMPANY concerning the subject matter in this Agreement, and it supersedes
all
prior agreements or understandings, written or oral, including the Employment
Agreement. This Agreement may not be amended or modified otherwise than by
a
written agreement executed by the Parties hereto or their respective successors
and legal representatives.
18. Each
of
the Sections contained in this Agreement shall be enforceable independently
of
every other Section in this Agreement, and the invalidity or unenforceability
of
any Section shall not invalidate or render unenforceable any other Section
contained in this Agreement.
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IN
WITNESS WHEREOF, the parties have executed this Agreement on the dates set
forth
below, intending to be legally bound by this Agreement.
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EXECUTIVE
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VAIL
RESORTS, INC.
|
|
/s/
Xxxx X. Xxxx
|
By:
/s/ Xxxxxx X. Xxxx
|
|
Xxxx
X. Xxxx
|
Name:
Xxxxxx X. Xxxx
Title:
Sr. Vice President and General Counsel
|
|
Date:
February 27, 2006
|
Date:
February 27, 2006
|
-11-
ANNEX
A
|
XXXX
X. XXXX
|
|||||||||||||||||||||||||
|
Stock
Options Outstanding and Exercisable As Of
2/27/2006 |
|||||||||||||||||||||||||
|
|
|||||||||||||||||||||||||
|
Xxxxx
|
Xxxxx
|
Options
|
Option
|
Options
Vested
|
|||||||||||||||||||||
|
Date
|
Plan
ID
|
Type
|
Granted
|
Price
|
&
Exercisable
|
||||||||||||||||||||
|
|
|
|
|
|
|||||||||||||||||||||
|
9/14/1999
|
1999Plan
|
Non-Qualified
|
60,000
|
$19.0625
|
60,000
|
||||||||||||||||||||
|
9/28/1999
|
1999Plan
|
Non-Qualified
|
65,000
|
$21.1250
|
65,000
|
||||||||||||||||||||
|
9/12/2000
|
1999Plan
|
Non-Qualified
|
100,000
|
$19.1250
|
100,000
|
||||||||||||||||||||
|
12/9/2002
|
1996Plan
|
Non-Qualified
|
120,000
|
$17.3350
|
120,000
|
||||||||||||||||||||
|
|
|
|
|
|
|
||||||||||||||||||||
|
|
|
|
|
|
|
||||||||||||||||||||
|
11/20/2003
|
2002Plan
|
Non-Qualified
|
120,000
|
$14.7300
|
80,000
|
||||||||||||||||||||
|
9/28/2004
|
2002Plan
|
Non-Qualified
|
120,000
|
$18.7300
|
40,000
|
||||||||||||||||||||
|
|
|||||||||||||||||||||||||
|
Current
Non-forfeited Optionee Total
|
465,000
|
||||||||||||||||||||||||
