EXHIBIT 10.17(b)
FIRST AMENDMENT TO
SHAREHOLDER AGREEMENT
This FIRST AMENDMENT to the SHAREHOLDER AGREEMENT dated as of November
1, 1999 (the "First Amendment") is made by and among Vail Resorts, Inc., a
Delaware corporation ("Vail"), Ralcorp Holdings, Inc., a Missouri corporation
(f/k/a ▇▇▇▇▇▇▇ Foods, Inc., a Nevada corporation) ("Foods"), and Apollo Ski
Partners, L.P., a Delaware limited partnership ("Apollo"), amending certain
provisions of the Shareholder Agreement dated as of January 3, 1997 (the
"Shareholder Agreement"), by and among Vail, Foods and Apollo. Terms used but
not otherwise defined herein shall have the respective meanings ascribed thereto
in the Shareholder Agreement.
WHEREAS, the Shareholder Agreement contains a covenant pursuant to
which Foods has agreed to vote each class of Vail Equity owned by Foods and its
Affiliates in the manner set forth in the Shareholder Agreement;
WHEEREAS, Vail, Foods and Apollo have agreed to modify the voting
provisions of the Shareholder Agreement as specifically set forth in this First
Amendment.
NOW, THEREFORE, in consideration of the premises and mutual agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
ARTICLE I
AMENDMENTS TO THE SHAREHOLDER AGREEEMENT
1.1. Section 2.3 of the Shareholder Agreement is revised in its entirety to
read as follows:
"Section 2.3 Voting of Vail Equity. Foods agrees that during the term of
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this Agreement, with respect to the election of directors of Vail, each
class of Vail Equity owned by Foods and its Affiliates shall be voted (i)
"for" the nominees recommended by the Board of Directors of Vail, provided
Vail and Apollo are in compliance with the terms of Section 11.2 of this
Agreement, (ii) in accordance with the recommendation of the Board of
Directors of Vail on each proposal of a security holder pursuant to Rule
14a-8 under the Exchange Act, so long as the subject matter of such
proposal does not fall, within the second proviso hereto, and (iii) with
respect to all other matters requiring a vote of the Vail Equity, "for" any
proposal in the same proportion as the votes cast "for" any proposal in the
same proportion as the votes cast "for" such proposal by the holders of the
Vail Securities of the same class (excluding the Vail Equity owned by
Foods), and "against" any proposal in the same proportion as the votes cast
"against" such proposal in the same proportion as the votes cast "against"
such proposal by the holders of each such class of Vail Securities
(excluding the Vail Equity owned by Foods) and that with respect to broker
non-votes and abstentions, each class of Vail Equity owned by Foods will be
voted in the same proportion as votes deemed "for," "against" or "abstain,"
giving effect to broker non-votes and abstentions as required under the
laws and rules then applicable; provided, however, that Foods shall retain
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the right to vote all of its Vail Equity in favor of the approval of the
Vail Resorts, Inc. 1999 Long Term Incentive and Share Award Plan as adopted
and approved by the Board of Directors of Vail and submitted to a vote of
the shareholders generally; provided, further, that Foods shall retain the
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right to vote its Vail Equity in any manner it sees fit with respect to any
proposals for (1) the merger, consolidation or other business combination
of Vail or any subsidiary of Vail with or into any other corporation, (2)
the sale, lease, exchange, transfer or other disposition of all or
substantially all of the assets of Vail and all of its subsidiaries taken
together as a single business, (3) the creation of any other class of stock
with voting rights, (4) changes to the Certificate of Incorporation or
Bylaws of Vail that adversely affect Foods' rights under this Agreement.
The
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provisions of this Section 2.3 shall apply to both the casting of votes at
meetings of shareholders and execution of actions by written consent."
ARTICLE II
PROVISIONS OF GENERAL APPLICATION
2.1. Except as otherwise expressly provided by this First Amendment, all of the
terms, conditions and provisions to the Shareholder Agreement remain unaltered.
The Shareholder Agreement and this First Amendment shall be read and construed
as one agreement.
2.2. If any of the terms of this First Amendment shall conflict in any respect
with any of the terms of the Shareholder Agreement, the terms of this First
Amendment shall be controlling.
IN WITNESS WHEREOF, the parties hereto have caused this First
Amendment to be executed by their duly authorized officers, all as of the day
and year first above written.
VAIL RESORTS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
RALCORP HOLDINGS, INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Title: Chief Executive Officer
and President
APOLLO SKI PARTNERS, L.P.
By: Apollo Investment Fund, L.P.
By: Apollo Advisors, L.P.
By: Apollo Capital Management, Inc.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇
Authorized Signatory
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