The form Indemnification Agreement was executed on October 15, 2008 by the following executive officers:
Exhibit
10.8
Schedule Required
by Instruction 2 to Item 601 of Regulation S-K
The form
Indemnification Agreement was executed on October 15, 2008 by the following
executive officers:
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NAME
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OFFICE
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Xxxxxx
X. Xxxx
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Chief
Executive Officer
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Xxxxxxx
X. Xxxxx
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Senior
Executive Vice President and Chief Financial Officer
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Xxxxx
X. Xxxxxxxxx
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President,
Vail Resorts Development Company
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Xxxxxxx
X. Xxxxx
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President,
RockResorts and Vail Resorts Hospitality
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Xxxxxx
X. Xxxxxx
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Co-President,
Mountain Division and COO, Heavenly Mountain Resort
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Xxxx
Mc.X. Xxxxxxx
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Co-
President, Mountain Division and COO, Beaver Creek Mountain
Resort
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VAIL
HOLDINGS, INC.
This
Indemnification Agreement (“Agreement”) is
effective as of October __, 2008, by and between Vail Holdings, Inc., a Delaware
corporation (the “Company”) and
____________ (“Indemnitee”). Capitalized
terms are defined herein and in Section
14.
WHEREAS,
the Company desires to attract and retain the services of highly qualified
individuals, such as Indemnitee, to serve the Company and its related
entities;
WHEREAS,
in order to induce Indemnitee to provide services to the Company, the Company
wishes to provide for the indemnification of, and the advancement of expenses
to, Indemnitee to the maximum extent permitted by law;
WHEREAS,
the Company and Indemnitee recognize the continued difficulty in obtaining
liability insurance for the Company’s directors, officers, employees, agents and
fiduciaries, the significant increases in the cost of such insurance and the
general reductions in the coverage of such insurance;
WHEREAS,
the Company and Indemnitee further recognize the substantial increase in
corporate litigation in general, subjecting directors, officers, employees,
agents and fiduciaries to expensive litigation risks at the same time as the
availability and coverage of liability insurance has been severely
limited;
WHEREAS,
the Company and Indemnitee desire to continue to have in place the additional
protection provided by an indemnification agreement and to provide
indemnification and advancement of expenses to the Indemnitee to the maximum
extent permitted by Delaware law; and
WHEREAS,
in view of the considerations set forth above, the Company desires that
Indemnitee shall be indemnified and advanced expenses by the Company as set
forth herein;
NOW,
THEREFORE, the Company and Indemnitee hereby agree as set forth
below:
1. Indemnity. The
Company hereby agrees to hold harmless and indemnify Indemnitee to the full
extent authorized or permitted by law and the Company's Certification of
Incorporation and By-laws. In furtherance of the foregoing
indemnification, and without limiting the generality thereof:
(a) Proceedings
Other Than Proceedings by or in the Right of the Company. Indemnitee
shall be entitled to the rights of indemnification provided in this Section l(a)
if, by reason of his Corporate Status, he is, or is threatened to be made, a
party to or participant in any Proceeding other than a Proceeding by or in the
right of the Company. Pursuant to this Section l(a),
Indemnitee shall be indemnified against all Expenses, judgments, penalties,
fines and amounts paid in settlement actually and reasonably incurred by him or
on his behalf in connection with such Proceeding or any claim, issue or matter
therein, if he acted in good faith and in a manner he reasonably believed to be
in or not opposed to the best interests of the Company and, with respect to any
criminal Proceeding, had no reasonable cause to believe his conduct was
unlawful.
(b) Proceedings
by or in the Right of the Company. Indemnitee shall be
entitled to the rights of indemnification provided in this Section l (b) if, by
reason of his Corporate Status, he is, or is threatened to be made, a party to
or participant in any Proceeding brought by or in the right of the Company to
procure a judgment in its favor. Pursuant to this Section l(b),
Indemnitee shall be indemnified against all Expenses actually and reasonably
incurred by him or on his behalf in connection with such Proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the Company; provided, however, that, if applicable law so
provides, no indemnification against such Expenses shall be made in respect of
any claim, issue or matter in such Proceeding as to which Indemnitee shall have
been finally adjudged to be liable to the Company unless and to the extent that
the U.S. District Court for the District of Colorado shall determine that such
indemnification may be made.
(c) Indemnification
for Expenses if Indemnitee is Wholly or Partly
Successful. Notwithstanding any other provision of this
Agreement, to the extent that Indemnitee is, by reason of his Corporate Status,
a party to and is successful, on the merits or otherwise, in any Proceeding, he
shall be indemnified to the maximum extent permitted by law against all Expenses
actually and reasonably incurred by him or on his behalf in connection
therewith. If Indemnitee is not wholly successful in such Proceeding
but is successful, on the merits or otherwise, as to one or more but less than
all claims, issues or matters in such Proceeding, the Company shall indemnify
Indemnitee against all Expenses actually and reasonably incurred by him or on
his behalf in connection with each successfully resolved claim, issue or matter
which shall include all Expenses except those that relate to claims, issues or
matters as to which Indemnitee was not successful. For purposes of
this Section and without limitation, the termination of any claim, issue or
matter in such a Proceeding by dismissal, with or without prejudice (including
dismissals related to settlement), shall be deemed to be a successful result as
to such claim, issue or matter.
2. Additional
Indemnity. In addition to, and without regard to any
limitations on, the indemnification provided for in Section 1, the
Company shall and hereby does indemnify and hold harmless Indemnitee against all
Expenses, judgments, penalties, fines and amounts paid in settlement actually
and reasonably incurred by him or on his behalf if, by reason of his Corporate
Status he is, or is threatened to be made, a party to or participant in any
Proceeding (including a Proceeding by or in the right of the
Company). The only limitation that shall exist upon the Company’s
obligations pursuant to this Section 2 shall be
that the Company shall not be obligated to make any payment to Indemnitee that
is finally determined (under the procedures, and subject to the presumptions,
set forth in Sections
6 and 7
hereof) to be unlawful.
3. Contribution In
The Event Of Joint Liability.
(a) Whether
or not the indemnification provided in Sections 1 and 2 hereof is
available, in respect of any Proceeding in which Company is jointly liable with
Indemnitee (or would be if joined in such action, suit or proceeding), Company
shall pay, in the first instance, the entire amount of any judgment, penalty,
fine or settlement of such Proceeding without requiring Indemnitee to contribute
to such payment and the Company hereby waives and relinquishes any right of
contribution it may have against Indemnitee. In the absence of
Indemnitee’s consent, which consent shall not be unreasonably withheld, the
Company shall not enter into any settlement of any Proceeding in which the
Company is jointly liable with Indemnitee (or would be if joined in such
Proceeding) unless such settlement provides for a full and final release of all
claims asserted against Indemnitee.
(b) Without
diminishing or impairing the obligations of the Company set forth in the
preceding subparagraph, if, for any reason, Indemnitee shall elect or be
required to pay all or any portion of any judgment or settlement in any
threatened, pending or completed Proceeding in which Company is jointly liable
with Indemnitee (or would be if joined in such Proceeding), the Company shall
contribute to the amount of Expenses, judgments, penalties, fines and amounts
paid in settlement actually incurred and paid or payable by Indemnitee in
proportion to the relative benefits received by the Company and all officers,
directors or employees of the Company other than Indemnitee who are jointly
liable with him (or would be if joined in such Proceeding), on the one hand, and
Indemnitee, on the other hand, from the transaction from which such Proceeding
arose; provided, however, that the proportion determined on the basis of
relative benefit may, to the extent necessary to conform to law, be further
adjusted by reference to the relative fault of the Company and all officers,
directors or employees of the Company other than Indemnitee who are jointly
liable with Indemnitee (or would be if joined in such Proceeding), on the one
hand, and Indemnitee, on the other hand, in connection with the events that
resulted in such Expenses, judgments, penalties, fines or settlement amounts, as
well as any other equitable considerations which the law may require to be
considered. The relative fault of the Company and all officers,
directors or employees of the Company other than Indemnitee who are jointly
liable with him (or would be if joined in such Proceeding), on the one hand, and
Indemnitee, on the other hand, shall be determined by reference to, among other
things, the degree to which their actions were motivated by intent to gain
personal profit or advantage, the degree to which their liability is primary or
secondary, and the degree to which their conduct is active or
passive.
(c) The
Company hereby agrees to fully indemnify and hold Indemnitee harmless from any
claims of contribution which may be brought by officers, directors or employees
of the Company who may be jointly liable with Indemnitee.
4. Indemnification
For Expenses Of A Witness. Notwithstanding any other provision
of this Agreement, to the extent that Indemnitee is, by reason of his Corporate
Status, a witness in any Proceeding to which such Indemnitee is not a party, he
shall be indemnified against all Expenses actually and reasonably incurred by
him or on his behalf in connection therewith; provided that attorneys’ fees
incurred by Indemnitee in connection with his or her service as a witness only
shall be reimbursed under this provision only if approved in advance by the
Company, such approval not to be unreasonably withheld.
5. Advancement
Of Expenses.
(a) Notwithstanding
any other provision of this Agreement, the Company shall advance all Expenses
reasonably and necessarily incurred by or on behalf of Indemnitee in connection
with any Proceeding by reason of Indemnitee’s Corporate Status within twenty
(20) days after the receipt by the Company of a statement or statements from
Indemnitee requesting such advance or advances from time to time, whether prior
to or after final disposition of such Proceeding. Such statement or
statements requesting such advance or advances shall evidence to the Company’s
reasonable satisfaction all Expenses incurred by Indemnitee and shall include an
affidavit of Indemnitee’s counsel attesting that all Expenses sought to be
advanced were reasonably and necessarily incurred by Indemnity, and shall also
include or be preceded or accompanied by an undertaking by or on behalf of
Indemnitee to promptly repay any Expenses advanced if it shall ultimately be
determined that Indemnitee is not entitled to be indemnified against such
Expenses, and further undertaking to promptly repay any Expenses advanced but
found not to have been reasonably and necessarily incurred. Any
advances and undertakings to repay pursuant to this Section 5 shall be
unsecured and interest free. To the extent permissible under third
party policies, the Company agrees that invoices for the advancement of Expenses
shall be billed in the name of and be payable directly by the
Company. Following, but not later than one year after, the conclusion
of any Proceeding with respect to which the Company has advanced Expenses, the
Company may commence an action to determine whether such Expenses were
reasonably and necessarily incurred by or on behalf of Indemnitee. In
any such action, Indemnity shall have the burden of demonstrating that all
Expenses advanced were reasonably and necessarily incurred and were required to
be advanced pursuant to this Agreement.
(b) Notwithstanding
any of the foregoing provisions in this Section 5, the
Company shall not be obligated to advance any expenses to Indemnitee arising
from a lawsuit filed directly by the Company against Indemnitee if an absolute
majority of the members of the Board of Directors reasonably determines in good
faith, within twenty (20) days of Indemnitee’s request to be advance expenses,
that the facts known to them at the time such determination is made demonstrate
clearly and convincingly that Indemnitee acted in bad faith after Indemnitee has
had an opportunity, with counsel, to present his case to the Board of
Directors. If such a determination is made, Indemnitee may have such
decision reviewed by another forum, in the manner set forth in Section 6, with all
references therein to “indemnification” being deemed to refer to “advancement of
expenses” and the burden of proof shall be on the Company to demonstrate that,
based on the facts known at the time, Indemnitee acted in bad
faith. The Company may not avail itself of this Section 5(b) as to a
given lawsuit if, at any time after the occurrence of the activities or
omissions that are the primary focus of the lawsuit, the Company has undergone a
Change in Control.
6. Procedures
And Presumptions For Determination Of Entitlement To
Indemnification. It is the intent of this Agreement to secure
for Indemnitee rights of indemnity that are as favorable as may be permitted
under the law and public policy of the state of
Delaware. Accordingly, the parties agree that the following
procedures and presumptions shall apply in the event of any question as to
whether Indemnitee is entitled to indemnification under this
Agreement:
(a) To obtain
indemnification (including, but not limited to, the advancement of Expenses and
contribution by the Company) under this Agreement, Indemnitee shall submit to
Chief Executive Officer of the Company a written request, including therein or
therewith such documentation and information as is reasonably available to
Indemnitee and is reasonably necessary to determine whether and to what extent
Indemnitee is entitled to indemnification. The Chief Executive
Officer shall, promptly upon receipt of such a request for indemnification,
advise the Board of Directors in writing that Indemnitee has requested
indemnification.
(b) Upon
written request by Indemnitee for indemnification pursuant to the first sentence
of Section 6(a)
hereof, a determination, if required by applicable law, with respect to
Indemnitee’s entitlement thereto shall be made in the specific case by one of
the following three methods, which shall be at the election of Indemnitee: (1)
by a majority vote of the disinterested directors, even though less than a
quorum, or (2) by independent legal counsel in a written opinion, or (3) by the
shareholders.
(c) If the
determination of entitlement to indemnification is to be made by Independent
Counsel pursuant to Section 6(b) hereof,
the Independent Counsel shall be selected as provided in this Section
6(c). The Independent Counsel shall be selected by Indemnitee
(unless Indemnitee shall request that such selection be made by the Board of
Directors). Indemnitee or the Company, as the case may be, may,
within ten (10) days after such written notice of selection shall have been
given, deliver to the Company or to Indemnitee, as the case may be, a written
objection to such selection; provided, however, that such objection may be
asserted only on the ground that the Independent Counsel so selected does not
meet the requirements of “Independent Counsel” as defined in Section 14(g) and the
objection shall set forth with particularity the factual basis of such
assertion. Absent a proper and timely objection, the person so
selected shall act as Independent Counsel. If a written objection is
made and substantiated, the Independent Counsel selected may not serve as
Independent Counsel unless and until such objection is withdrawn or a court has
determined that such objection is without merit. If, within thirty
(30) days after submission by Indemnitee of a written request for
indemnification pursuant to Section 6(a) hereof,
no Independent Counsel shall have been selected and not objected to, either the
Company or Indemnitee may seek judicial resolution of any objection which shall
have been made by the Company or Indemnitee to the other's selection of
Independent Counsel and/or for the appointment as Independent Counsel of a
person selected by the court or by such other person as the court shall
designate, and the person with respect to whom all objections are so resolved or
the person so appointed shall act as Independent Counsel under Section 6(b)
hereof. The Company shall pay any and all reasonable fees and
expenses of Independent Counsel incurred by such Independent Counsel in
connection with acting pursuant to Section 6(b) hereof,
and the Company shall pay all reasonable fees and expenses incident to the
procedures of this Section 6(c),
regardless of the manner in which such Independent Counsel was selected or
appointed.
(d) In making
a determination with respect to entitlement to indemnification hereunder, the
person or persons or entity making such determination shall presume (unless
there is clear and convincing evidence to the contrary) that Indemnitee is
entitled to indemnification under this Agreement if Indemnitee has submitted a
request for indemnification in accordance with Section
6(a). Anyone seeking to overcome this presumption shall have
the burden of proof and the burden of persuasion, by a preponderance of the
evidence.
(e) Indemnitee
shall be presumed to have acted in good faith if Indemnitee’s action is based on
the records or books of account of the Company, including financial statements,
or on information supplied to Indemnitee by the officers of the Company in the
course of their duties, or on the advice of legal counsel for the Company or on
information or records given or reports made to the Company by an independent
certified public accountant, by a financial advisor or by an appraiser or other
expert selected with reasonable care by the Company. In addition, the
knowledge and/or actions, or failure to act, of any other director, officer,
trustee, partner, managing member, fiduciary, agent or employee of the Company
shall not be imputed to Indemnitee for purposes of determining the right to
indemnification under this Agreement. Whether or not the foregoing
provisions of this Section 6(e) are
satisfied, it shall in any event be presumed that Indemnitee has at all times
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the best interests of the Company. Anyone seeking to
overcome this presumption shall have the burden of proof and the burden of
persuasion, by a preponderance of the evidence.
(f) The
Company acknowledges that a settlement or other disposition short of final
judgment may be successful if it permits a party to avoid expense, delay,
distraction, disruption and uncertainty. In the event that any
action, claim or proceeding to which Indemnitee is a party is resolved in any
manner other than by adverse judgment against Indemnitee (including, without
limitation, settlement of such action, claim or proceeding with or without
payment of money or other consideration) it shall be presumed that Indemnitee
has been successful on the merits or otherwise in such action, suit or
proceeding. Anyone seeking to overcome this presumption shall have
the burden of proof and the burden of persuasion, by a preponderance of the
evidence.
(g) If the
person, persons or entity empowered or selected under Section 6(b) to
determine whether Indemnitee is entitled to indemnification shall not have made
a determination within sixty (60) days after receipt by the Company of the
request therefor, the requisite determination of entitlement to indemnification
shall be deemed to have been made and Indemnitee shall be entitled to such
indemnification, thereto; provided, however, that the running of such 60 day
period shall be tolled for the duration of any period during which Indemnitee
has, in the reasonable opinion of the person, persons or entity empowered or
selected under Section
6(b) to determine whether Indemnitee is entitled to indemnification,
failed to cooperate, as required by Section 6(h), below,
with such person’s efforts to determine Indemnitee’s right to indemnification,
and provided further that that the foregoing provisions of this Section 6(g) shall
not apply if the determination of entitlement to indemnification is to be made
by the shareholders pursuant to Section 6(b) and if
within fifteen (15) days after receipt by the Company of the request for such
determination the Board of Directors resolve to submit such determination to the
shareholders for their consideration at the next annual meeting thereof and such
determination is made thereat.
(h) Indemnitee
shall cooperate with the person, persons or entity making such determination
with respect to Indemnitee’s entitlement to indemnification, and provide to such
person, persons or entity upon reasonable advance request any documentation or
information which is reasonably available to Indemnitee and reasonably necessary
to such determination. Nothing in this Agreement shall require
Indemnitee to waive any of his rights under the United States Constitution or to
provide information that is privileged or otherwise protected from
disclosure. Any Independent Counsel, member of the Board of
Directors, or shareholder of the Company shall act reasonably and in good faith
in making a determination under the Agreement of Indemnitee's entitlement to
indemnification. Any costs or expenses (including attorneys’ fees and
disbursements) reasonably and necessarily incurred by Indemnitee in so
cooperating with the person, persons or entity making such determination shall
be borne by the Company (irrespective of the determination as to Indemnitee’s
entitlement to indemnification) and the Company hereby indemnifies and agrees to
hold Indemnitee harmless therefrom.
7. Remedies.
(a) In the
event that (i) a determination is made pursuant to Section 6 that
Indemnitee is not entitled to indemnification under this Agreement, (ii)
advancement of Expenses is not timely made pursuant to Section 5, (iii) no
determination of entitlement to indemnification shall have been made pursuant to
Section 6(b)
within 90 days after receipt by the Company of the request for indemnification,
(iv) payment of indemnification is not made pursuant to this Agreement within
ten (10) days after receipt by the Company of a written request therefor, or (v)
payment of indemnification is not made within ten (10) days after a
determination has been made that Indemnitee is entitled to indemnification or
such determination is deemed to have been made pursuant to Section 6, Indemnitee
shall be entitled to an adjudication of his entitlement to such
indemnification. The Company shall not oppose Indemnitee’s right to
seek any such adjudication in conformity with this Section7(a), but the
Company may assert any appropriate objection or defense to such indemnification
in any such adjudication.
(b) In the
event that a determination shall have been made pursuant to Section 6(b) that
Indemnitee is not entitled to indemnification, any judicial proceeding commenced
pursuant to this Section 7 shall be
conducted in all respects as a de novo trial, on the merits
and Indemnitee shall not be prejudiced in any way by reason of that adverse
determination.
(c) If a
determination shall have been made pursuant to Section 6(b) that
Indemnitee is entitled to indemnification, the Company shall be bound by such
determination in any judicial proceeding commenced pursuant to this Section 7, absent
(i) a misstatement by Indemnitee of a material fact, or omission of a
material fact necessary to make Indemnitee’s statement not materially
misleading, in connection with the request for indemnification or (ii) a
prohibition of such indemnification under applicable law.
(d) The
Company shall indemnify and hold harmless Indemnitee to the fullest extent
permitted by law against all Expenses and, in accordance with Section 5, advance
such Expenses to Indemnitee, that are actually and reasonably incurred by
Indemnitee in connection with any judicial proceeding brought by Indemnitee in
which Indemnity substantially prevails in Indemnitee’s effort (i) to enforce
Indemnitee’s rights under, or to recover damages for breach of, this Agreement
or any other indemnification, advancement or contribution agreement or provision
of the Company’s Certificate of Incorporation or Bylaws now or hereafter in
effect, or (ii) to recover under any directors’ and officers’ liability
insurance policies maintained by the Company.
(e) The
Company and Indemnity each shall be precluded from asserting in any judicial
proceeding commenced pursuant to this Section 7 that the
procedures and presumptions of this Agreement are not valid, binding and
enforceable and shall stipulate that the Company and Indemnity each are bound by
all the provisions of this Agreement.
(f) Interest
shall be paid by the Company to Indemnitee at the legal rate under Colorado law
for amounts which the Company indemnifies or is obliged to indemnify for the
period commencing with the date on which Indemnitee requests indemnification (or
reimbursement or advancement of any Expenses) and ending with the date on which
such payment is made to Indemnitee by the Company.
8. Non-Exclusivity;
Survival Of Rights; Insurance.
(a) The
rights of indemnification as provided by this Agreement shall not be deemed
exclusive of any other rights to which Indemnitee may at any time be entitled
under applicable law, the Certificate of Incorporation, the Bylaws, any
agreement, a vote of shareholders or a resolution of directors, or
otherwise. No amendment, alteration or repeal of this Agreement or of
any provision hereof shall limit or restrict any right of Indemnity under this
Agreement in respect of any action taken or omitted by Indemnitee in his
Corporate Status prior to such amendment, alteration or repeal. To
the extent that a change in the law, whether by statute or judicial decision,
permits greater indemnification than would be afforded currently under this
Agreement, it is the intent of the parties hereto that Indemnitee shall enjoy by
this Agreement the greater benefits so afforded by such change. No
right or remedy herein conferred is intended to be exclusive of any other right
or remedy, and every other right and remedy shall be cumulative and in addition
to every other right and remedy given hereunder or now or hereafter existing at
law or in equity or otherwise. The assertion or employment of any
right or remedy hereunder, or otherwise, shall not prevent the concurrent or
later assertion or employment of any other right or remedy.
(b) With
respect to any policy or policies of director’s liability insurance procured by
the Company, in its discretion, for the benefit of its officers and directors,
Indemnitee shall be provided insurance coverage no less favorable than that
provided to similarly situated officers and/or directors, as the case may
be. In all such policies of director and officer liability insurance,
Indemnitee shall be named as an insured in such a manner as to provide
Indemnitee at least the same rights and benefits as are accorded similarly
situated officers and/or directors, as the case may be. The Company
shall give prompt notice of the commencement of any Proceeding to the insurers
in accordance with the procedures set forth in the respective
policies. The Company shall thereafter take all necessary or
desirable action to cause such insurers to pay, on behalf of Indemnitee, all
amounts payable as a result of such Proceeding in accordance with the terms of
such policies. Notwithstanding anything to the contrary in this
Agreement, the Company shall not indemnify the Indemnitee to the extent
Indemnitee is actually reimbursed from the proceeds of insurance, and in the
event the Company makes any indemnification payments to Indemnitee and
Indemnitee is subsequently reimbursed from the proceeds of insurance, Indemnitee
shall promptly refund such indemnification payments to the Company to the extent
of such insurance reimbursement.
9. Exceptions
To Right Of Indemnification. Notwithstanding any other
provision of this Agreement other than Section 5(b), the
Company shall not be obligated pursuant to the terms of this
Agreement:
(a) Excluded Action or
Omissions. To indemnify Indemnitee for Expenses resulting from
acts, omissions or transactions for which Indemnitee is prohibited from
receiving indemnification under this Agreement the Company’s Articles and Notice
of Articles, or applicable law; provided, however, notwithstanding any
limitation set forth in this Section 9(a)
regarding the Company’s obligation to provide indemnification, Indemnitee shall
be entitled under Section 5 to receive
Expense Advances hereunder with respect to any such Claim unless and until a
court having jurisdiction over the Claim shall have made a final judicial
determination (as to which all rights of appeal therefrom have been exhausted or
lapsed) that Indemnitee has engaged in acts, omissions or transactions for which
Indemnitee is prohibited from receiving indemnification under this Agreement or
applicable law.
(b) Claims Initiated by
Indemnitee. To indemnify or make Expense Advances to
Indemnitee with respect to Claims initiated or brought voluntarily by
Indemnitee, whether by way of claim, counterclaim, crossclaim, or any similar
means of asserting a claim, except (i) with respect to actions or proceedings
brought to establish or enforce a right to indemnification under this Agreement
or any other agreement or insurance policy or under the Company’s Articles or
Notice of Articles now or hereafter in effect relating to Claims for Covered
Events, (ii) in specific cases if the Board of Directors has approved the
initiation or bringing of such Claim or (iii) as otherwise required under
applicable law, regardless of whether Indemnitee ultimately is determined to be
entitled to such indemnification or insurance recovery, as the case may
be.
(c) Lack of Good
Faith. To indemnify Indemnitee for any Expenses incurred by
the Indemnitee with respect to any action instituted (i) by Indemnitee to
enforce or interpret this Agreement, if a court having jurisdiction over such
action determines as provided in Section 7 that any of
the material assertions made by the Indemnitee as a basis for such action lacked
a substantial basis in fact or law, was not made in good faith, or was frivolous
or (ii) by or in the name of the Company to enforce or interpret this Agreement,
if a court having jurisdiction over such action determines as provided in Section 7 that any of
the material defenses asserted by Indemnitee in such action lacked a substantial
basis in fact or law, was not made in good faith, or was frivolous.
(d) Claims Under Section
16(b). To indemnify Indemnitee for expenses and the payment of
profits arising from the purchase and sale by Indemnitee of securities in
violation of Section 16(b) of the Exchange Act, or any similar successor
statute; provided, however, that notwithstanding any limitation set forth in
this Section
9(d) regarding the Company’s obligation to provide indemnification,
Indemnitee shall be entitled under Section 5 to receive
Expense Advances hereunder with respect to any such Claim unless and until a
court having jurisdiction over the Claim shall have made a final judicial
determination (as to which all rights of appeal therefrom have been exhausted or
lapsed) that Indemnitee has violated said statute.
10. Settlement. The
Company shall not settle any action, claim or Proceeding (in whole or in part)
against the Company, Indemnitee or any current or former director or officer
which would impose any Expense, judgment, fine, penalty or limitation on the
Indemnitee without the Indemnitee’s prior written consent, which consent shall
not be unreasonably withheld. The Company shall promptly notify
Indemnitee that the Company has received an offer or intends to make an offer to
settle any such Proceeding and shall provide Indemnitee reasonable time to
consider such offer, provided however Indemnitee shall have no less than two (2)
business days’ notice to consider such offer.
11. Duration
Of Agreement. This Agreement shall continue until and
terminate upon the later of: (a) ten (10) years after the date that Indemnitee
shall have ceased to serve as a director or officer of the Company or as a
director, officer, trustee, partner, managing member, fiduciary, employee or
agent of any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise which Indemnitee served at the request of the
Company or (b) one (1) year after the final termination of any Proceeding
(including any rights of appeal thereto) then pending in respect of which
Indemnitee is granted rights of indemnification or advancement of Expenses
hereunder and of any proceeding commenced by Indemnitee pursuant to Section 7 hereof
relating thereto (including any rights of appeal of any Section 7
Proceeding).
12. Establishment
of a Trust; Security.
(a) To the
extent reasonably requested by Indemnitee and (i) approved by the Board of
Directors acting in good faith or (ii) in the event of a Threatened Change in
Control, the Company shall at any time and from time to time provide security to
Indemnitee for the Company’s obligations hereunder through an irrevocable bank
line of credit, funded trust or other collateral. Any such security,
once provided to Indemnitee, may not be revoked or released without the prior
written consent of Indemnitee, which consent shall not be unreasonably
withheld.
(b) In the
event the Indemnitee requests the Company to establish a funded trust pursuant
to Section
12(a) (a “Trust”), the Company
shall, from time to time upon written request of Indemnitee, fund such Trust in
an amount reasonably sufficient to satisfy all Expenses reasonably anticipated
at the time of each such request to be reasonably and necessarily incurred in
connection with investigating, preparing for, participating in or defending any
Proceedings, and any and all judgments, fines, penalties and amounts paid in
settlement (including all interest, assessments and other charges paid or
payable in connection with or in respect of such judgments, fines penalties and
amounts paid in settlement) in connection with any and all Proceedings from time
to time actually paid or claimed, reasonably anticipated or proposed to be
paid. The Company may, in its discretion, establish one collective
trust for the benefit of all Persons who may have rights similar to those of the
Indemnitee and the Trust shall form a part of such single collective
trust. The trustee of the Trust (the “Trustee”) shall be a
bank or trust company or other individual or entity chosen by the Company and
reasonably acceptable to the Indemnitee. Nothing in this Section 12 shall
relieve the Company of any of its obligations under this
Agreement. The amount or amounts to be deposited in the Trust
pursuant to the foregoing funding obligation shall be determined by mutual
agreement of the Indemnitee and the Company or, if the Company and the
Indemnitee are unable to reach such an agreement, by Independent Counsel
selected in accordance with Section 6(c)
hereof. The terms of the Trust shall provide that, except upon
the consent of both the Indemnitee and the Company, upon a Change in Control (a)
the Trust shall not be revoked or the principal thereof invaded, without the
written consent of the Indemnitee, (b) the Trustee shall advance, within ten
(10) business days of a request by the Indemnitee and upon the execution and
delivery to the Company of an undertaking providing that the Indemnitee
undertakes to repay the advance to the extent that it is ultimately determined
that Indemnitee is not entitled to be indemnified by the Company, any and all
Expenses to the Indemnitee, (c) the Trust shall continue to be funded by the
Company in accordance with the funding obligations set forth above, (d) the
Trustee shall promptly pay to the Indemnitee all amounts for which the
Indemnitee shall be entitled to indemnification pursuant to this Agreement or
otherwise and (e) all unexpended funds in such Trust shall revert to the Company
upon mutual agreement by the Indemnitee and the Company or, if the Indemnitee
and the Company are unable to reach such an agreement, by Independent Counsel
selected in accordance with Section 6(c) hereof,
that the Indemnitee has been fully indemnified under the terms of this
Agreement. The Trust shall be governed by Colorado law (without
regard to its conflicts of laws rules) and the Trustee shall consent to the
exclusive jurisdiction of the Colorado Court in accordance with Section 21
hereof.
13. Enforcement.
(a) The
Company expressly confirms and agrees that it has entered into this Agreement
and assumed the obligations imposed on it hereby in order to induce Indemnitee
to serve as a member of the Board of Directors, and the Company acknowledges
that Indemnitee is relying upon this Agreement in serving as a member of the
Board of Directors.
(b) This
Agreement constitutes the entire agreement between the parties hereto with
respect to the subject matter hereof and supersedes all prior agreements and
understandings, oral, written and implied, between the parties hereto with
respect to the subject matter hereof.
(c) The
Company and the Indemnitee agree that irreparable damage would occur in the
event that any of the provisions of this Agreement were not performed in
accordance with their specific terms or were otherwise breached. It
is accordingly agreed that they each will be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any court of the United States
located in the State of Colorado or in Colorado state court, this being in
addition to any other remedy to which they are entitled at Law or in
equity. In addition, each of the Company and the Indemnitee (a)
consents to submit itself to the personal jurisdiction of any federal court
located in the State of Colorado or any Colorado state court in the event any
dispute arises out of this Agreement, (b) agrees that it will not attempt to
deny or defeat such personal jurisdiction by motion or other request for leave
from any such court and (c) agrees that it will not bring any action relating to
this Agreement in any court other than a federal or state court sitting in the
State of Colorado.
14. Definitions. For
purposes of this Agreement:
(a) “Change in Control”
shall be deemed to occur upon the earliest to occur after the date of this
Agreement of any of the following events:
(i) any
Person or Group becomes the “beneficial owner” (as defined in Rules 13d-3 and
13d-5 under the Exchange Act), directly or indirectly, of thirty-five percent
(35%) or more of the Company’s Voting Securities;
(ii) during
any period of twenty four (24) consecutive months, a majority of the members of
the Board of Directors or other equivalent governing body of the Company cease
to be composed of individuals (1) who were members of that Board of Directors or
equivalent governing body on the first day of such period, (2) whose election or
nomination to that Board of Directors 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 of Directors or
equivalent governing body, or (3) whose election or nomination to that Board of
Directors 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 of Directors 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 of Directors 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 of Directors); or
(iii) any
Person or two or more Persons acting in concert shall have acquired, by contract
or otherwise, control over the Voting Securities (and taking into account all
such Voting Securities that such Person or Persons has the right to acquire
pursuant to any option right) representing fifty-one percent (51%) or more of
the combined voting power of such Voting Securities; or
(iv) the
Company sells or transfers (other than by mortgage or pledge) all or
substantially all of its properties and assets to another Person or
Group.
(b) “Company” shall
include any other corporation, partnership, joint venture, trust, employee
benefit plan or other enterprise of which Indemnitee is or was serving at the
express written request of the Company as a director, officer, employee, agent
or fiduciary.
(c) “Corporate Status”
describes the status of a person who is or was a director, officer, employee or
agent or fiduciary of the Company or of any other corporation, partnership,
joint venture, trust, employee benefit plan or other enterprise which such
person is or was serving at the express written request of the
Company.
(d) “Exchange Act” shall
mean the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.
(e) “Expenses” shall
include all reasonable attorneys’ fees, retainers, court costs, transcript
costs, fees of experts, witness fees, travel expenses, duplicating costs,
printing and binding costs, telephone charges, postage, delivery service fees,
and all other disbursements or expenses of the types customarily incurred in
connection with prosecuting, defending, preparing to prosecute or defend,
investigating, participating, or being or preparing to be a witness in a
Proceeding, and any federal, state, local or foreign taxes imposed on Indemnitee
as a result of the actual or deemed receipt of any payments under this
Agreement. Expenses also shall include Expenses incurred in
connection with any appeal resulting from any Proceeding, including without
limitation, the premium, security for, and other costs relating to any cost
bond, supersedeas bond or other bond or its equivalent.
(f) “Group” shall mean any
group of Persons for purposes of Sections 13(d) and 14(d) of the Exchange
Act.
(g) “Independent Counsel”
means a law firm, or a member of a law firm, that is experienced in matters of
corporation law, whose relationship with the Company, its officers and
directors, and Indemnitee is not such as would give rise to a reasonable
question concerning his or her ability to fairly and objectively evaluate the
issues with respect to which he or she is engaged, and who neither presently is,
nor in the past three years has been, retained to represent: (i) the Company or
Indemnitee in any matter material to either such party (other than with respect
to matters concerning any Indemnitee under this Agreement), or (ii) any other
party to the Proceeding giving rise to a claim for indemnification
hereunder. Notwithstanding the foregoing, the term “Independent
Counsel” shall not include any person who, under the applicable standards of
professional conduct then prevailing, would have a conflict of interest in
representing either the Company or Indemnitee in an action to determine
Indemnitee’s rights under this Agreement. The Company agrees to pay
the reasonable fees of the Independent Counsel referred to above and to fully
indemnify such counsel against any and all Expenses, claims, liabilities and
damages arising out of or relating to this Agreement or its engagement pursuant
hereto.
(h) “Person” shall
have the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act;
provided, however, that Person shall exclude (i) the Company, (ii) any trustee
or other fiduciary holding securities under an employee benefit plan of the
Company and (iii) any corporation owned, directly or indirectly, by the
shareholders of the Company in substantially the same proportions as their
ownership of shares of the Company
(i) “Proceeding” includes
any threatened, pending or completed action, suit, arbitration, alternate
dispute resolution mechanism, investigation, inquiry, administrative hearing or
any other actual, threatened or completed proceeding, whether brought by or hi
the right of the Company or otherwise and whether civil, criminal,
administrative or investigative, in which Indemnitee was, is or will be involved
as a party or otherwise, by reason of the fact that Indemnitee is or was a
member of the Company or Indemnitee of the Company, by reason of any action
taken by him or of any inaction on his part while acting as a member of the
Company, or by reason of the fact that he is or was serving at the request of
the Company as a director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise; in each case whether or
not he is acting or serving in any such capacity at the time any liability or
expense is incurred for which indemnification can be provided under this
Agreement; and excluding one initiated by Indemnitee pursuant to Section 6 to enforce
his rights under this Agreement.
(j) A “Threatened Change in
Control” shall mean the occurrence of one or more of the following
events: (i) the Company (or any affiliate of the Company) entering
into an agreement, the consummation of which would result in the occurrence of a
Change in Control; (ii) any Person (including, without limitation, the Company)
publicly announcing an intention to take or to consider taking actions which, if
consummated, would constitute a Change in Control; (iii) any Person or Group
becoming the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act), directly or indirectly, of thirty-five percent (35%) or more of
the Company’s Voting Securities; or (iv) the Board notifying Indemnitee in
writing that a threat of a Change in Control exists.
(k) “Voting
Securities” shall mean any equity securities of the Company
that vote generally in the election of directors or equivalent governing body of
the Company on a fully-diluted basis.
15. Severability. If
any provision or provisions of this Agreement shall be held by a court of
competent jurisdiction to be invalid, void, illegal or otherwise unenforceable
for any reason whatsoever: (a) the validity, legality and enforceability of the
remaining provisions of this Agreement (including without limitation, each
portion of any section of this Agreement containing any such provision held to
be invalid, illegal or unenforceable, that is not itself invalid, illegal or
unenforceable) shall not in any way be affected or impaired thereby and shall
remain enforceable to the fullest extent permitted by law and (b) to the fullest
extent possible, the provisions of this Agreement (including, without
limitation, each portion of any section of this Agreement containing any such
provision held to be invalid, illegal or unenforceable, that is not itself
invalid, illegal or unenforceable) shall be construed so as to give effect to
the intent manifested thereby.
16. Modification
And Waiver. No supplement, modification, termination or
amendment of this Agreement shall be binding unless executed in writing by the
parties hereto. No waiver of any of the provisions of this Agreement
shall be deemed or shall constitute a waiver of any other provisions hereof
(whether or not similar) nor shall such waiver constitute a continuing
waiver.
17. Notice By
Indemnitee. Indemnitee agrees promptly to notify the Company
in writing upon being served with any summons, citation, subpoena, complaint,
indictment, information or other document relating to any Proceeding or matter
which may be subject to indemnification covered hereunder. The
failure to so notify the Company shall not relieve the Company of any obligation
which it may have to Indemnitee under this Agreement or otherwise.
18. Notices. All
notices, requests, demands and other communications hereunder shall be in
writing and shall be deemed to have been duly given if (i) delivered by and
receipted for by the party to whom said notice or other communication shall have
been directed or if (ii) mailed by certified or registered mail with postage
prepaid, on the third business day after the date on which it is so
mailed:
(a) If
to Indemnitee, to:
[Name]
[Address]
[Address]
(b) If to the
Company, to:
Vail Holdings,
Inc.
000 Xxxxxxxxxxx
Xxxxxxxx
Xxxxxxxxxx,
Xxxxxxxx 00000
Attn: General
Counsel
19. Identical
Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall for all purposes be deemed to be an original
but all of which together shall constitute one and the same
Agreement. Only one such counterpart signed by the party against whom
enforceability is sought needs to be produced to evidence the existence of this
Agreement.
20. Headings. The
headings of the paragraphs of this Agreement are inserted for convenience only
and shall not be deemed to constitute part of this Agreement or to affect the
construction thereof.
21. Consent
to Jurisdiction. The Company and Indemnitee hereby irrevocably
and unconditionally (i) agree that any action or proceeding arising out of or in
connection with this Agreement shall be brought only in the state or federal
trial courts situated in the Denver, Colorado metropolitan area, (the “Court”), and not in
any other state or federal court in the United States of America or any court in
any other country, (ii) consent to submit to the exclusive jurisdiction of the
Court for purposes of any action or proceeding arising out of or in connection
with this Agreement, (iii) appoint, to the extent such party is not a resident
of the State of Colorado, irrevocably [the Company’s Statutory Agent
in Colorado] as its
agent in the State of Colorado as such party’s agent for acceptance of legal
process in connection with any such action or proceeding against such party with
the same legal force and validity as if served upon such party personally within
the State of Colorado, (iv) waive any objection to the laying of venue of any
such action or proceeding in the Court and (v) waive, and agree not to plead or
to make, any claim that any such action or proceeding brought in the Court has
been brought in an improper or inconvenient forum.
22. Governing
Law. The parties agree that this Agreement shall be governed
by, and construed and enforced in accordance with, the laws of Delaware without
application of the conflict of laws principles thereof.
[Signature
Page to follow.]
IN
WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
and year first above written.
VAIL
HOLDINGS, INC.
By
Name:
Title:
[Indemnitee]
