VAIL RESORTS, INC. FORM OF RESTRICTED SHARE [UNIT] AGREEMENT
Exhibit
10.21
VAIL
RESORTS, INC.
FORM
OF RESTRICTED SHARE [UNIT] AGREEMENT
THIS
AGREEMENT, dated as of [date], is between Vail Resorts, Inc., a Delaware
corporation (the “Company”), and [name of employee] (the
“Employee”).
WHEREAS,
the Employee has been granted the following award under the Company’s Amended
and Restated 2002 Long Term Incentive and Share Award Plan (the
“Plan”);
NOW,
THEREFORE, in consideration of the premises and mutual covenants contained
herein, and for other good and valuable consideration, the parties hereto agree
as follows.
1. Award
of Shares. Pursuant to the provisions of the Plan, the terms of
which are incorporated herein by reference, the Employee is hereby awarded
[number of shares][number of units] [Restricted Shares][Restricted Share Units]
(the “Award”), subject to the terms and conditions of the Plan and those herein
set forth. The Award is granted as of [date] (the “Date of Grant”).
Capitalized terms used herein and not defined shall have the meanings set forth
in the Plan. In the event of any conflict between this Agreement and the Plan,
the Plan shall control.
2. Terms
and Conditions. It is understood and agreed that the Award of
[Restricted Shares] [Restricted Share Units] evidenced hereby is subject to
the
following terms and conditions:
(a) Vesting
of Award. Subject to Section 2(b) below and the other terms and
conditions of this Agreement, this Award shall become vested in three equal
annual installments, commencing on the first anniversary of the Date of Grant
and continuing on each of the following two anniversaries of the Date of Grant.
[RS: Unless otherwise provided by the Committee, all dividends and other amounts
receivable in connection with any adjustments to the Shares under Section 4(c)
of the Plan shall be subject to the vesting schedule in this Section
2(a).]
Notwithstanding
any provision of this Agreement to the contrary, in the event of a Change in
Control (as such term is defined below), this Award, if not already vested
under
this Section 2(a), will vest in full at the time of the Change in
Control. For purposes of this Agreement, “Change in Control” shall
mean an event or series of events by which:
(i) 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 the Company entitled
to
vote for members of the Board or equivalent governing body of the Company on
a
fully-diluted basis; or
(ii) during
any period of twenty four (24) consecutive months, a majority of the members
of
the Board or other equivalent governing body of the Company 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
(iii) any
person or two or more persons acting in concert shall have acquired, by contract
or otherwise, control over the equity securities of the Company entitled to
vote
for members of the Board or equivalent governing body of the Company 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
(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”
(as such terms are used in Sections 13(d) and 14(d) of the Exchange
Act).
(b) Termination
of Service; Forfeiture of Unvested Shares. In the event of a
termination of the Employee’s employment with the Company and its Subsidiaries
prior to the date that the Award otherwise becomes vested, the unvested portion
of the Award shall immediately be forfeited by the Employee and become the
property of the Company.
(c) [RS:
Certificates. Each certificate or other evidence of ownership
issued in respect of Restricted Shares awarded hereunder shall be deposited
with
the Company, or its designee, together with, if requested by the Company, a
stock power executed in blank by the Employee, and shall bear a legend
disclosing the restrictions on transferability imposed on such Restricted Shares
by this Agreement (the “Restrictive Legend”). Upon the vesting of
Restricted Shares pursuant to Section 2(a) hereof and the satisfaction of any
withholding tax liability pursuant to Section 5 hereof, the certificates
evidencing such vested Shares, not bearing the Restrictive Legend, shall be
delivered to the Employee or other evidence of vested Shares shall be provided
to the Employee.]
[RSU: Delivery.
Upon the vesting of Restricted Share Units pursuant to Section 2(a) hereof
and the satisfaction of any withholding tax liability pursuant to Section 5
hereof, the certificates evidencing the Shares to which the vested Restricted
Share Units relate shall be delivered to the Employee or other evidence of
the
Shares shall be provided to the Employee.]
(d) [RS: Rights
of a Stockholder. Prior to the time a Restricted Share is fully
vested hereunder, the Employee shall have no right to transfer, pledge,
hypothecate or otherwise encumber such Restricted Share. During such
period, the Employee shall have all other rights of a stockholder, including,
but not limited to, the right to vote and to receive dividends (subject to
Section 2(a) hereof) at the time paid on such Restricted Shares.]
[RSU: Rights
of a Stockholder. The Employee shall have no right to transfer,
pledge, hypothecate or otherwise encumber the Restricted Share Units. The
Employee shall not have the rights of a stockholder with respect to the
Restricted Share Units, including the right to receive dividends.]
(e) No
Right to Continued Employment. This Award shall not confer upon
the Employee any right with respect to continuance of employment by the Company
nor shall this Award interfere with the right of the Company to terminate the
Employee’s employment at any time.
3. Transfer
of Shares. The Shares delivered hereunder, or any interest
therein, may be sold, assigned, pledged, hypothecated, encumbered, or
transferred or disposed of in any other manner, in whole or in part, only in
compliance with the terms, conditions and restrictions as set forth in the
governing instruments of the Company, applicable federal and state securities
laws or any other applicable laws or regulations and the terms and conditions
hereof.
4. Expenses
of Issuance of Shares. The issuance of stock
certificates hereunder shall be without charge to the Employee. The
Company shall pay any issuance, stamp or documentary taxes (other than transfer
taxes) or charges imposed by any governmental body, agency or official (other
than income taxes) by reason of the issuance of Shares.
5. [RS: Withholding. No
later than the date of vesting of (or the date of an election by the Employee
under Section 83(b) of the Code with respect to) the Award granted hereunder,
the Employee shall pay to the Company or make arrangements satisfactory to
the
Committee regarding payment of any federal, state or local taxes of any kind
required by law to be withheld at such time with respect to such Award and
the
Company shall, to the extent permitted or required by law, have the right to
deduct from any payment of any kind otherwise due to the Employee, federal,
state and local taxes of any kind required by law to be withheld at such
time. The Employee may elect to have the Company withhold Shares to
pay any applicable withholding taxes resulting from the Award, in accordance
with any rules or regulations of the Committee then in effect.]
[RSU:
Withholding. No later than the date of delivery of Shares pursuant
to Section 2(c) hereunder, the Employee shall pay to the Company or make
arrangements satisfactory to the Committee regarding payment of any federal,
state or local taxes of any kind required by law to be withheld at such time
with respect to the Award and the Company shall, to the extent permitted or
required by law, have the right to deduct from any payment of any kind otherwise
due to the Employee, federal, state and local taxes of any kind required by
law
to be withheld at such time. The Employee may elect to have the Company withhold
Shares to pay any applicable withholding taxes resulting from the Award, in
accordance with any rules or regulations of the Committee then in
effect.]
6. References. References
herein to rights and obligations of the Employee shall apply, where appropriate,
to the Employee’s legal representative or estate without regard to whether
specific reference to such legal representative or estate is contained in a
particular provision of this Agreement.
7. Notices. Any
notice required or permitted to be given 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 party concerned at the address
indicated below or to such changed address as such party may subsequently by
similar process give notice of:
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If
to the Company:
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Vail
Resorts, Inc.
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Attention:
General Counsel
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If
to the Employee:
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At
the Employee’s most recent address shown on the Company’s corporate
records, or at any other address which the Employee may specify in
a
notice delivered to the Company in the manner set forth
herein.
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8. [RSU:
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 Award, then the Committee shall make
such
equitable changes or adjustments as it deems appropriate and adjust, in such
manner as it deems equitable, including, without limitation, the number and
kind
of Shares, other securities or other consideration issued or issuable with
respect to this Award. In the event that the Company shall declare an
extraordinary cash dividend, then the Committee shall in its discretion either
(i) pay you cash when and as your RSUs vest in an amount equal to the number
of
RSUs vested multiplied by the per share amount of such extraordinary cash
dividend; or (ii) make such other adjustment as the Committee determines would
provide you a substantially similar benefit.]
9. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Colorado, without giving effect to
principles of conflict of laws.
10. Counterparts. This
Agreement may be executed in two counterparts, each of which shall constitute
one and the same instrument.
(Signature
Page Follows)
IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the date
first above written.
VAIL
RESORTS, INC.
By:
Name:
Title:
EMPLOYEE:
[Typewritten
Name of Employee]