SEPARATION AGREEMENT AND MUTUAL GENERAL RELEASE
Exhibit
10.2
This
Separation Agreement and Mutual General Release (this “Agreement”) dated as of
December 7, 2006, is by and between Xxxxxx
X. Xxxx
(the
“EXECUTIVE”) and VAIL RESORTS, INC., a
Delaware corporation (“VAIL RESORTS”). The EXECUTIVE and VAIL RESORTS may each
be referred to as a “Party” and collectively as the “Parties.”
WHEREAS,
the EXECUTIVE is the EXECUTIVE VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
of
VAIL RESORTS; and
WHEREAS,
the EXECUTIVE and VAIL RESORTS agree that as of the EXECUTIVE’S Final Date of
Employment, as hereinafter defined, the EXECUTIVE will no longer perform
services as an employee of VAIL RESORTS, and will cease to be eligible to
participate in benefit plans for active employees of VAIL RESORTS;
and
WHEREAS,
the EXECUTIVE acknowledges that, as of the Final Date of Employment, she
has no
entitlement to continued pay or benefits under the Employment Agreement
between
the EXECUTIVE and VAIL RESORTS, dated as of May 10, 1999, as amended (the
“Employment Agreement”) except as provided herein; and
WHEREAS,
this Agreement is pursuant to Section 3(c) of the Employment Agreement, and
the
Parties mutually desire to amend and supersede the Employment Agreement by
this
Agreement; and
WHEREAS,
VAIL RESORTS, 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, VAIL RESORTS
and the EXECUTIVE agree as follows:
1. As
used
herein, the following terms, when capitalized, shall have the following
meanings:
(a) “Companies”
shall mean VAIL RESORTS, INC. 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, information regarding legal strategies
and
proceedings, 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, 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 VAIL RESORTS. Confidential Information does not
include (i) any information that is generally available to the public or
hereafter becomes available to the public without the fault of the EXECUTIVE;
(ii) club membership rolls sent to the EXECUTIVE in her capacity as a
member of the applicable club, provided that the EXECUTIVE agrees that she
will
use such club membership rolls only in accordance with the rules and regulations
of the applicable club; (iii) information that is or becomes known in the
industry without the fault of the EXECUTIVE; (iv) information that is
received from a third party outside of VAIL RESORTS which to EXECUTIVE’S
knowledge is not in violation of a confidentiality agreement with VAIL RESORTS;
or (v) general industry skills, knowledge and experience.
(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 March 31, 2007, or such earlier date as may be
determined by VAIL RESORTS in its sole discretion; provided that in the event
that VAIL RESORTS elects to determine that the Final Date of Employment shall
occur before March 31, 2007, then VAIL RESORTS shall take all actions necessary
to ensure that such determination does not reduce or otherwise affect
EXECUTIVE’S rights under this agreement, her options to purchase stock of VAIL
RESORTS or other equity-based compensation plans or agreements (provided
that
this Agreement shall not be construed or applied so as to modify any stock
option agreement or plan so as to extend the period following the Final Date
of
Employment that EXECUTIVE has the right to exercise any option to purchase
VAIL
RESORTS stock beyond the period prescribed in such stock option agreement
and/or
plan), including the right to and amount of payments and other benefits to
which
EXECUTIVE is entitled under Sections 3 and 4, below.
(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 VAIL RESORTS will terminate
on
the Final Date of Employment. This Agreement constitutes the EXECUTIVE’S
resignation from all officer, director and employee positions with VAIL RESORTS
and the Companies, in each case effective on the Final Date of Employment.
The
Parties acknowledge that, following the Final Date of Employment, the EXECUTIVE
shall not be considered an officer or employee of VAIL RESORTS.
3. In
consideration for the EXECUTIVE entering into this Agreement,
(a) conditioned
on: (i) the execution and non-revocation, pursuant to Section 13 hereof,
of this
Agreement; and
(ii) the execution on the Final Date of Employment and non-revocation of a
mutual release, substantially in the form of the mutual release set forth
in
Section 5 hereof, which mutual release shall be binding on EXECUTIVE only
if it
is also executed and not revoked by VAIL RESORTS, VAIL
RESORTS agrees to pay the
EXECUTIVE the
sum
of: (w) $382,950,
comprised of twelve (12) months of the EXECUTIVE’S base salary; plus (x)
$127,522, which is 66.6% of EXECUTIVE’S full target bonus for the fiscal year
started August 1, 2006; plus (y) an
amount
equal to EXECUTIVE’S base salary for the period, if any, from the Final Date of
Employment through March 31, 2007; and plus (z) $1,656, which is equal to
the
amount of club membership dues payable by EXECUTIVE from the Final Date of
Employment through September 30, 2007 for the following clubs: Beaver Creek
Club, Red Sky Ranch Golf Club, and Bachelor Gulch Club, less statutory and
authorized deductions.
Such sum
will be paid in a single lump sum six months after the Final Date of Employment;
provided that if guidance regarding Internal Revenue Code Section 409A is
issued
that would permit such payment to be made earlier without subjecting the
EXECUTIVE to an additional income tax, the EXECUTIVE may specify, on two
business days’ prior notice, such an earlier payment date for the amounts set
forth in this Section 3(a). In addition, conditioned
on: (i) the execution and non-revocation, pursuant to Section 13 hereof,
of this
Agreement; and
(ii) the execution on the Final Date of Employment and non-revocation of a
mutual release, substantially in the form of the mutual release set forth
in
Section 5 hereof, which mutual release shall be binding on EXECUTIVE only
if it
is also executed and not revoked by VAIL RESORTS, VAIL
RESORTS will also pay COBRA health insurance premiums under its health insurance
plans on behalf of EXECUTIVE and her dependents for the period from the Final
Date of Employment through March 31, 2008.
(b) VAIL
RESORTS agrees to pay the EXECUTIVE, no later than 15 days after the Final
Date of
Employment, full payment of
any amount owing to the EXECUTIVE in respect
of base salary for the period
through the Final Date of Employment, as well as accrued
and unused paid time off through such date (as reflected on the human resources
records of VAIL RESORTS).
4. In
addition to that set forth in Section 3 above, the following shall be applicable
as a result of
the
EXECUTIVE’S separation:
(a) After
the
Final Date of Employment: (i) the EXECUTIVE shall neither accrue salary nor
paid
time off nor participate in (A) VAIL RESORTS Medical and Dental Plans
(other than as required under COBRA), (B) Short Term or Long Term
Disability Insurance, (C) VAIL RESORTS 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) she
shall have no right to make contributions or earn VAIL RESORTS Matching
Contributions in VAIL RESORTS’ 401(k) Plan (except
for any VAIL RESORTS Matching Contributions due but not yet made:
and
(iii) except as otherwise provided in Sections 4(d) and 4(e) below, she shall
no
longer be entitled to any perquisites made available to active executives
or
employees of VAIL RESORTS, including, but not limited to parking or the use
of
VAIL RESORTS owned and Volvo promotional vehicles. The EXECUTIVE’S rights with
respect to her accrued benefits, as of the Final Date of Employment, under
the
Companies’ 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
VAIL CORPORATION sponsored employee benefit plan will be as set forth in
the
applicable plan document and shall be at her sole expense. Other than as
expressly set forth in this Agreement, the EXECUTIVE will have no rights
to
future benefits under any employee benefit plan or arrangement of the Companies
following the Final Date of Employment, except to the extent such benefits
have
been earned and accrued as of the Final Date of Employment.
(b) Any
stock
options, restricted stock or other equity-based compensation awards held
by the
EXECUTIVE that are not vested as of the EXECUTIVE’S Final Date of Employment
will be immediately cancelled and forfeited.
(c) Notwithstanding
anything in this or another document to the contrary, all vested options to
purchase stock of VAIL RESORTS, INC. held by the EXECUTIVE after the Final
Date
of Employment (each of which is listed on Annex A hereto) shall thereafter
continue to be exercisable in accordance with their terms.
(d) For
the
period through the end of the 2006-07 ski season the EXECUTIVE and a single
designated person living in the same household as EXECUTIVE may continue
to use
their employee ski passes and, until March 15, 2007, receive discounts at
SSV
stores and restaurants, as they had prior to the Final Date of
Employment.
(e) Through
September 30, 2007, the EXECUTIVE shall retain membership privileges in the
following clubs: Beaver Creek Club, Red Sky Ranch Golf Club, and Bachelor
Gulch
Club.
(f)
For
the
period through June 30, 2007, VAIL RESORTS shall maintain (i) an
appropriate forwarding message recorded by the EXECUTIVE and approved by
VAIL
RESORTS on voicemail for the EXECUTIVE’S former VAIL RESORTS telephone number,
and (ii) an auto-response on the email address xxxxx@xxxxxxxxxxx.xxx with
an appropriate forwarding email response created by the EXECUTIVE and approved
by VAIL RESORTS. In addition, through June 30, 2007, VAIL RESORTS shall forward
to the EXECUTIVE, at an address she may reasonably provide from time to time,
any first class mail addressed to the EXECUTIVE at VAIL RESORTS’ offices that
VAIL RESORTS determines is her personal mail.
(g)
VAIL
RESORTS shall pay the EXECUTIVE’S reasonable legal fees incurred by third-party
counsel and expenses (not to exceed $7,500) incurred by her in negotiating
and
executing this Agreement.
(h)
VAIL
RESORTS shall reimburse the EXECUTIVE for reasonable expenses incurred by
her in
the course of performing her duties with VAIL RESORTS prior to the Final
Date of
Employment, so long as such expenses were incurred in compliance with VAIL
RESORTS’ policies with respect to travel, entertainment and other business
expenses, and the EXECUTIVE has complied with VAIL RESORTS’ requirements with
respect to submitting, reporting and documentation of such
expenses.
5. (a)
In
return
for the consideration and other promises by VAIL RESORTS set forth in this
Agreement, the EXECUTIVE for herself and her representatives, heirs, and
assigns, hereby releases and discharges each of the Released Persons from
all
Legal Proceedings, known or unknown, that she may have against any of the
Released Persons, including, but not limited to, claims that in any manner
relate to, arise out of or involve any aspect of her employment with VAIL
RESORTS, and her 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 her employment or separation from employment
with VAIL RESORTS. 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 that, 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 VAIL
RESORTS’ 401(k) Plan or other benefit plans which will be as set forth in the
applicable plan documents, or any conversion or continuation right the EXECUTIVE
may have under any other VAIL RESORTS employee benefit plan which will be
as set
forth in the applicable plan document and shall be at her sole expense; (iv)
rights to indemnification or advancement of expenses under the Articles of
Incorporation or Bylaws of VAIL RESORTS or any of the Companies or under
Section
145 of the General Corporation Law of Delaware; (v) rights as a shareholder
of
VAIL RESORTS; or (vi) claims for breach by VAIL RESORTS of this
Agreement.
The
EXECUTIVE also specifically covenants and represents that she has not brought
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 Companies
and
related companies (including Vail Resorts Development Company, The Vail
Corporation and Vail Summit Resorts, Inc., Vail Resorts International, LLC),
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 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 VAIL
RESORTS. 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 VAIL RESORTS 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
her
representatives, heirs and assigns (the “EXECUTIVE Released Persons”) from all
Legal Proceedings, known or unknown, that they may have against any of 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 VAIL RESORTS, and her 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 her employment or separation from employment with
VAIL
RESORTS. 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; and (iii)
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.
6. The
EXECUTIVE agrees to the following:
(a)
The
EXECUTIVE shall remove all of her personal possessions from her office by
no
later than the Final Date of Employment, and shall not return to her office
after the Final Date of Employment other than as may be approved in advance
by
VAIL RESORTS. The
EXECUTIVE shall return
all materials of the Companies 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. Subject to compliance with her obligations herein with respect
to the use and disclosure of Confidential Information, the EXECUTIVE will
be
entitled to make a copy of her electronic rolodex and schedule and, shall
not be
prohibited from participating as a partner, employee, officer, director,
consultant or any other role with respect to any entity that owns or hereafter
purchases or proposes to purchase any property managed by any of the
Companies.
(b)
The
EXECUTIVE shall not
use or
disclose to anyone not connected with VAIL RESORTS, or use for her own benefit
or that of third parties, any Confidential Information or trade secrets that
the
EXECUTIVE obtained during her employment with VAIL RESORTS, except as required
in any judicial or administrative proceeding.
(c) The
EXECUTIVE shall not
make any
copies for her 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 Companies, except as required in any judicial or
administrative proceeding.
(d) The
EXECUTIVE covenants and agrees that through March 31, 2008, she will not
solicit
for another business or enterprise any person who is a Grade 28 functional
director or higher level employee of VAIL RESORTS, INC. or any of its
subsidiaries at the time of the EXECUTIVE’S termination.
(e) The
EXECUTIVE further covenants and agrees that through the second anniversary
of
the Final Date of Employment, she will consult with any of the Companies
as,
when and where reasonably requested by a representative thereof on matters
relating to the Companies’ business. The EXECUTIVE agrees that such consultation
shall include, but shall not be limited to, serving as a factual witness,
in the
prosecution and defense of Legal Proceedings pertaining to any of the Companies’
business. VAIL RESORTS agrees that such assistance shall be scheduled at
such
reasonable times with advance notice as will not unreasonably interfere with
the
EXECUTIVE’S employment or other business activities. VAIL RESORTS agrees to
reimburse the EXECUTIVE’S reasonable travel expenses in providing such
assistance in accordance with VAIL RESORTS’ published Travel and Entertainment
Policy, and agrees to pay the EXECUTIVE at an hourly rate of $300 per hour
(or
portion thereof) for the EXECUTIVE’S consulting (not including travel time).
(f) For
a
period of five (5) years following the Final Date of Employment, the EXECUTIVE
shall not make any statements disparaging of any of the Companies, the Board,
or
the officers, directors, stockholders, or employees of any of the Companies.
Similarly, no person, while serving as an officer and/or director of any
of the
Companies, shall disparage the EXECUTIVE for a period of five (5) 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.
(g) The
Parties acknowledge that VAIL RESORTS retains the right, together with any
other
legal remedy VAIL RESORTS may have, to discontinue the payments and benefits
payable or due to the EXECUTIVE under this Agreement in the event that VAIL
RESORTS determines, in good faith, that the EXECUTIVE is violating or has
violated any material obligation under this Agreement. In
such
an event, the EXECUTIVE may seek a determination, pursuant to the provisions
of
Section 14 below, that such action by VAIL RESORTS was not justified and
should
be remedied.
If a
determination is made that such action was not justified, in whole or part,
the
EXECUTIVE shall be entitled to compensatory damages, including interest and
payment of attorneys’ fees and expenses. 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.
7. The
EXECUTIVE acknowledges and agrees that the restrictions and obligations
contained in Section 6(b) - 6(f) are reasonable and necessary to
protect and preserve the legitimate interests, properties, goodwill and business
of VAIL RESORTS, that VAIL RESORTS would not have entered into this Agreement
in
the absence of such restrictions and that irreparable injury will be suffered
by
VAIL RESORTS should the EXECUTIVE breach any of such provisions. The EXECUTIVE
further acknowledges and agrees that a breach of any of such restrictions
and
obligations cannot be adequately compensated by monetary damages. The EXECUTIVE
agrees that VAIL RESORTS 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 VAIL RESORTS 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.
8. 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 VAIL RESORTS 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 VAIL RESORTS.
9. 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.
10. VAIL
RESORTS advises the EXECUTIVE to consult an attorney before signing this
Agreement, and the EXECUTIVE acknowledges that she has had a full and fair
opportunity to consult with an attorney of her choice before signing this
Agreement, and to discuss with such attorney all issues relevant to the
EXECUTIVE, including the potential application of Internal Revenue Code Section
409A. It is intended that this Agreement will comply with Section 409A of
the
Internal Revenue Code
(and
any regulations and guidelines issued thereunder) to the extent the Agreement
is
subject thereto, and the Agreement shall be interpreted on a basis consistent
with such intent.
11. The
EXECUTIVE acknowledges the adequacy and sufficiency of the consideration
for her
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.
12. The
EXECUTIVE hereby acknowledges her understanding that, had she wished to do
so,
she could have taken up to twenty-one (21) days to consider this Agreement,
that
she has read this Agreement and understands its terms and significance, and
that
she executes this Agreement voluntarily and with full knowledge of its effect,
having carefully read and considered all terms of this Agreement and, if
she has
chosen to consult with an attorney, having had all terms and their significance
fully explained to her by her attorney.
13. The
EXECUTIVE understands that she may revoke this Agreement, as it applies to
her,
within seven (7) days following execution of this Agreement and that this
Agreement, as it applies to her, 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
Chief
Executive Officer of VAIL RESORTS, INC. prior to the end of such 7 day
revocation period. In the event that the Agreement is revoked by the EXECUTIVE,
VAIL RESORTS 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.
14. 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 JAMS®, Denver, Colorado, and judgment on the award
rendered may be entered in any court having jurisdiction.
15. The
EXECUTIVE shall be responsible for paying all income taxes attributable to
payments, perks 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.
16. The
EXECUTIVE acknowledges that VAIL RESORTS is a public company. As such, the
EXECUTIVE acknowledges that this Agreement may be publicly filed as required
by
law.
17. This
Agreement represents the complete agreement between the EXECUTIVE and VAIL
RESORTS concerning the subject matter in this Agreement, and it supersedes
all
prior agreements or understandings, written or oral, including the Employment
Agreement Notwithstanding the preceding sentence or any other provision of
this
Agreement, Section 4, Non-Competition, of the Employment Agreement shall
survive
the execution of this Agreement and shall thereafter be fully enforceable
according to its terms. This Agreement may not be amended or modified otherwise
than by a written agreement executed by the Parties 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.
[SIGNATURES
FOLLOW]
IN
WITNESS WHEREOF, the Parties have executed this Agreement on the dates set
forth
below, intending to be legally bound by this Agreement.
|
EXECUTIVE
|
VAIL
RESORTS, INC.
|
||
|
By:
|
/s/
Xxxxxx X. Xxxx
|
By:
|
/s/
Xxxxxx X.
Xxxx
|
|
Name:
|
Xxxxxx
X. Xxxx
|
Name:
|
Xxxxxx
X. Xxxx
|
|
Title:
|
Chief
Executive Officer
|
||
|
Date:
|
December
7, 2006
|
Date:
|
December
7, 2006
|
AMENDMENT
NO. 1 TO
This
Amendment No. 1 to Separation Agreement and Mutual General Release (this
“Amendment”) dated as of March 9, 2007, is by and between Xxxxxx
X. Xxxx
(the
“EXECUTIVE”) and VAIL RESORTS, INC., a
Delaware corporation (“VAIL RESORTS”), and amends that certain Separation
Agreement and Mutual General Release (the “Agreement”) dated as of December 7,
2006, by and between the EXECUTIVE and VAIL RESORTS.
In
consideration of the mutual promises contained in this Agreement, VAIL RESORTS
and the EXECUTIVE agree as follows:
16. Each
reference to “March 31, 2007” in the Agreement is hereby amended to read “April
30, 2007”.
17. Each
reference to “March 31, 2008” in the Agreement is hereby amended to read “April
30, 2008”.
18. Each
reference to “June 30, 2007” in the Agreement is hereby amended to read “July
31, 2007”.
19. Clause
(x) in Section 3(a) of the Agreement is hereby amended to read “(x) $143,606,
which is 75% of EXECUTIVE’S full target bonus for the fiscal year started August
1, 2006;”.
20. The
dollar amount set forth in clause (z) in Section 3(a) of the Agreement is
hereby
amended to read “$1,380”.
21. The
EXECUTIVE and VAIL RESORTS acknowledge and agree that all provisions of the
Agreement shall remain in full force and effect except as specifically amended
hereby.
22. Any
controversy or claim arising out of, or relating to, this Amendment, 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 JAMS®, Denver, Colorado, and judgment on the award
rendered may be entered in any court having jurisdiction.
23. The
EXECUTIVE acknowledges that VAIL RESORTS is a public company. As such, the
EXECUTIVE acknowledges that this Amendment may be publicly filed as required
by
law.
IN
WITNESS WHEREOF, the Parties have executed this Agreement on the dates set
forth
below, intending to be legally bound by this Agreement.
|
EXECUTIVE
|
VAIL
RESORTS, INC.
|
||
|
By:
|
/s/
Xxxxxx X. Xxxx
|
By:
|
/s/
Xxxxxx X.
Xxxx
|
|
Name:
|
Xxxxxx
X. Xxxx
|
Name:
|
Xxxxxx
X. Xxxx
|
|
Title:
|
Chief
Executive Officer
|
||
|
Date:
|
March
9, 2007
|
Date:
|
March
9, 2007
|
