FORM OF SHARE APPRECIATION RIGHTS AGREEMENT
Exhibit
10.22
[Employee
Name]
[Address]
[City,
State, Zip]
RE: Grant
of Share Appreciation Rights
Dear [Name
of Employee]:
Vail
Resorts, Inc. (the "Company") is pleased to confirm that you were granted an
award of Share Appreciation Rights on [date] (the "Grant Date") on the terms
set
forth herein and pursuant to the Company's 2002 Long Term Incentive and Share
Award Plan (the "Plan"), the terms of which are incorporated herein by
reference. Capitalized terms used and not defined herein have the meanings
set
forth in the Plan.
1.
Share Appreciation Rights Terms.
(a) Grant.
On the
Grant Date you were granted Share Appreciation Rights with respect to [Number]
shares of the Company's common stock, $0.01 par value per share (the "SAR
Shares"), at an exercise price per Share Appreciation Right equal to [Amount]
(the "Exercise Price"). Your Share Appreciation Rights will expire at the close
of business on the tenth anniversary of the Grant Date (the "Expiration Date"),
subject to earlier expiration in connection with the termination of your
employment as provided below.
(b) Exercisability/Vesting.
Your
Share Appreciation Rights will be exercisable only to the extent they have
vested. Your Share Appreciation Rights will be vested with respect to
[Percentage Amount]% of the SAR Shares (rounded to the nearest whole share)
on
each of the [____ through _____] anniversaries of the Grant Date, if and only
if
you have been continuously employed by the Company and/or its Subsidiaries
from
the date of this Agreement through such dates. Upon the termination of your
employment for any reason, by you or by the Company and/or its Subsidiaries,
with or without cause, all of your unvested Share Appreciation Rights shall
expire and be of no further force or effect. Any such termination shall not
affect your vested Share Appreciation Rights, which shall remain exercisable
pursuant to paragraph 1(d) below.
(c) Exercise
Upon Sale of the Company.
(i) As
used in this Agreement, "Sale of the Company" shall mean the acquisition of
90%
of the Company's outstanding common stock pursuant to a merger, consolidation,
business combination, purchase of stock, or otherwise that is approved by the
Company's Board of Directors.
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(ii) In
connection with the Sale of the Company, the Company may, on not less than
20
days notice to you, provide that any portion of your vested Share Appreciation
Rights which have not been exercised prior to or in connection with the Sale
of
the Company will be forfeited. In lieu of requiring such exercise, the Company
may: (1) provide for the cancellation of the exercisable portion of your Share
Appreciation Rights in exchange for a payment equal to the excess (if any)
of
the consideration per share of common stock receivable in connection with such
Sale of the Company over the Exercise Price; and/or (2) provide for the
cancellation of the non-vested portion of your Share Appreciation Rights in
exchange for the creation of a cash escrow account in lieu thereof in an amount
equal to the excess (if any) of the consideration per share of common stock
receivable in connection with such Sale of the Company over the Exercise Price,
which amount, plus accrued interest thereon, shall be paid to you pro rata
over
the time periods and in the same percentages as such canceled unvested Share
Appreciation Rights would have vested in accordance with the provisions of
Section 1(b) above and subject to the same termination and forfeiture provisions
of Section 1(d) below and to the other terms and provisions of this
Agreement.
(d) Termination
of Share Appreciation Rights.
In no
event shall any part of your Share Appreciation Rights be exercisable after
the
Expiration Date set forth in paragraph 1(a). If your employment with the Company
and/or its Subsidiaries terminates for any reason, that portion of your Share
Appreciation Rights that is not vested and exercisable on the date of
termination of your employment shall expire and be forfeited. The portion of
your Share Appreciation Rights that is vested and exercisable on the date of
such termination shall, to the extent not theretofore exercised, expire on
the
90th day after such date of termination.
2.
Procedure for Share Appreciation Rights Exercise.
You
may,
at any time or from time to time, to the extent permitted hereby, exercise
all
or any portion of your vested portion of your Share Appreciation Rights by
delivering, to the attention of the Company's General Counsel at the address
set
forth in paragraph 9 below, written notice to the Company of the number of
Share
Appreciation Rights to be exercised. The Company may delay effectiveness of
any
exercise of your Share Appreciation Rights for such period of time as may be
necessary to comply with any legal or contractual provisions to which it may
be
subject relating to the issuance of its securities, it being understood that
such exercise shall be effective immediately upon completion of such compliance
notwithstanding the occurrence of the Expiration Date.
3.
Payment for Share Appreciation Rights.
Upon
your
exercise of the Share Appreciation Rights, the Company shall pay you in SAR
Shares an amount equal to the quotient of: (i) the product of (x) the positive
difference (if any) between the Fair Market Value of a SAR Share on the exercise
date and the Exercise Price, multiplied by (y) the number of Share Appreciation
Rights being exercised, divided by (ii) the Fair Market Value of a SAR Share
on
the exercise date. Any fractional SAR Shares shall be paid to you in
cash.
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4.
Share Appreciation Rights Not Transferable.
Your
Share Appreciation Rights are personal to you and are not transferable by you,
other than by will or by the laws of descent and distribution. During your
lifetime, only you (or your guardian or legal representative) may exercise
your
Share Appreciation Rights. In the event of your death, your Share Appreciation
Rights may be exercised only by the executor or administrator of your estate
or
the person or persons to whom your rights under the Share Appreciation Rights
shall pass by will or by the laws of intestate succession.
5.
Conformity with Plan.
Your
Share Appreciation Rights are intended to conform in all respects with, and
is
subject to, all applicable provisions of the Plan, the terms and conditions
of
which are incorporated herein by reference. Any inconsistencies between this
Agreement and the Plan shall be resolved in accordance with the Plan. By
executing and returning a copy of this Agreement, you acknowledge your receipt
of this Agreement and the Plan and agree to be bound by all the terms of this
Agreement and the Plan.
6.
Rights of Participants.
Nothing
in this Agreement shall interfere with or limit in any way the right of the
Company and/or its Subsidiaries to terminate your employment at any time (with
or without cause), or confer upon you any right to continue in the employ of
the
Company and/or its Subsidiaries for any period of time or to continue to receive
your current (or other) rate of compensation. Nothing in this Agreement shall
confer upon you any right to be selected to receive additional awards under
the
Plan or otherwise.
7.
Withholding of Taxes.
The
Company may, if necessary or desirable, withhold from any amounts due and
payable to you by the Company or a Subsidiary (or secure payment from you in
lieu of withholding) the amount of any withholding or other tax due from the
Company or Subsidiary with respect to the issuance or exercise of your Share
Appreciation Rights, and the Company may defer such issuance or exercise unless
indemnified by you to its satisfaction against the payment of any such
amount.
8.
Adjustments.
In
the
event that the Committee shall determine that any dividend in Shares,
recapitalization, Share split, reverse split, reorganization, merger,
consolidation, spin-off, combination, repurchase, share exchange, or other
similar corporate transaction or event affects the Shares such that an
adjustment is appropriate in order to prevent dilution or enlargement of your
rights under this Share Appreciation Rights Agreement, then the Committee shall
make such equitable changes or adjustments as it deems appropriate and adjust,
in such manner as it deems equitable, any or all of: (i) the number and kinds
of
SAR Shares, other securities or other
88
consideration
subject to the Share Appreciation Rights; and (ii) the Exercise Price of the
Share Appreciation Rights.
9.
Notice.
Any
notice required or permitted to be given to the Company under this Agreement
shall be in writing and shall be deemed to have been given when delivered
personally or by courier, or sent by certified or registered mail, postage
prepaid, return receipt requested, duly addressed to the Company as
follows:
Vail
Resorts, Inc.
000
Xxxxxxxxxxx Xxxxxxxx
Xxxxx
0000
Xxxxxxxxxx,
Xxxxxxxx 00000
Attention:
General Counsel
10.
Governing Law.
This
Agreement shall be governed by and construed in accordance with the laws of
the
State of Colorado without reference to the principles of conflict of
laws.
11.
Code Section 409A.
It
is
intended that this award of Share Appreciation Rights comply with Code
Section 409A and the guidance promulgated thereunder regarding the
permissible deferral of compensation under the grant of Share Appreciation
Rights.
[Signature
Page Follows]
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To
confirm your understanding and acceptance of the terms and provisions set forth
in this Agreement, please execute the extra copy of this Agreement in the space
below and return it to the attention of the Company's General Counsel at the
address set forth in paragraph 9 above.
Very
truly yours,
VAIL
RESORTS, INC.
By:
_____________________
Name:
___________________
Title:
____________________
The
undersigned hereby acknowledges that he or she has read this Agreement and
has
received a copy of the Plan and hereby agrees to be bound by all the provisions
set forth in this Agreement and in the Plan.
_________________________________
[Name
of
Employee]
Date:
_____________________________
90
