RESTATED FIRST AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT
Exhibit
10.28(b)
RESTATED
FIRST AMENDMENT TO
AMENDED
AND RESTATED EMPLOYMENT AGREEMENT
This
RESTATED FIRST AMENDMENT TO AMENDED AND RESTATED EMPLOYMENT AGREEMENT (this
“Amendment”), is made and entered into as of September 18, 2008, by and between
VAIL RESORTS, INC. (“VRI”), and Xxxxxxx X. Xxxxx (“Executive”).
RECITALS
A. VRI
and Executive entered into that certain Amended and Restated Employment
Agreement, effective September 29, 2004 (the “Original Agreement”), as amended
on September 26, 2007 (the “First Amendment”); and
B. VRI
and Executive desire to amend and restate the First Amendment in its
entirety.
NOW,
THEREFORE, the parties hereto agree as follows:
1. This
Amendment restates and supersedes the First Amendment in its entirety, and the
First Amendment shall be of no further force or effect.
2. Section
2(h) is hereby added to the Original Agreement to read as follows:
(h) Long Term Incentive
Compensation. So long as Executive shall be employed by VRI on
the date of the first regularly scheduled meeting of the Board of Directors of
VRI to occur after July 31, 2008 (“Grant Date”), and has not received any notice
of termination for any reason as of or prior to the Grant Date, Executive shall
be granted (the “September 2008 Grant”) a long term incentive award having a
grant value of $2,300,000, of which (1) 50% (using VRI’s standard valuation
methodology) shall be pursuant to a grant of Restricted Stock Units (“RSUs”),
and (2) 50% (using VRI’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 the third anniversary
of the date of grant; 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 the Grant Date, and only if the
effect of such Change in Control is to extinguish, exchange or convert the
common stock of VRI 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 September 2008
Grant shall accelerate in the event of a duly completed Change in Control which
has been publicly announced or completed prior to March 31, 2009 but rather
shall vest pursuant to (y) above.
For
purposes of this Agreement, “Change in Control” shall mean an event or series of
events by which:
(A) any
“person” or “group” (as such terms are used in Sections 13(d) and 14(d) of the
Exchange Act, but excluding any employee benefit plan of such person or its
subsidiaries, and any person or entity acting in its capacity as trustee, agent,
or other fiduciary or administrator of any such plan) becomes the “beneficial
owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act), directly or
indirectly, of 35% or more of the equity securities of VRI entitled to vote for
members of the Board or equivalent governing body of VRI 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 VRI 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 VRI entitled to vote for
members of the Board or equivalent governing body of VRI 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) VRI
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).
3. Except
as modified by this Amendment, the Original Agreement shall remain in full force
and effect.
4. This
Amendment may be executed in any number of counterparts, each of which shall be
an original, but all of which together shall constitute one
instrument.
5. The
internal laws of the State of Colorado law shall govern the construction and
enforcement of this Amendment.
[Signature
Page Follows]
IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day
of the date first written above.
VAIL
RESORTS, INC.:
By: /s/ Xxxxxx X.
Xxxx
Xxxxxx X.
Xxxx, Chief Executive Officer
EXECUTIVE:
/s/ Xxxxxxx X.
Xxxxx
Xxxxxxx
X. Xxxxx
