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Exhibit 10.23
VAIL RESORTS
DEFERRED COMPENSATION PLAN
31
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VAIL RESORTS
DEFERRED COMPENSATION PLAN
Table of Contents
<TABLE>
<CAPTION>
Section Page
<S> <C>
ARTICLE 1 Definitions................................................. 1
1.1 Account..................................................... 1
1.2 Administrator............................................... 1
1.3 Beneficiary................................................. 1
1.4 Board....................................................... 1
1.5 Bonus....................................................... 1
1.6 Code........................................................ 1
1.7 Compensation................................................ 1
1.8 Deferrals................................................... 2
1.9 Deferral Election........................................... 2
1.10 Disability.................................................. 2
1.11 Discretionary Contribution.................................. 2
1.12 Effective Date.............................................. 2
1.13 Eligible Employee........................................... 2
1.14 Employee.................................................... 2
1.15 Employer.................................................... 2
1.16 Enrollment Period........................................... 2
1.17 Investment Fund or Funds.................................... 2
1.18 Matching Contribution....................................... 3
1.19 Participant................................................. 3
1.20 Plan........................................................ 3
1.21 Plan Year................................................... 3
1.22 Retirement.................................................. 3
1.23 Salary...................................................... 3
1.24 Trust....................................................... 3
1.25 Trustee..................................................... 3
1.26 Years of Service............................................ 3
ARTICLE 2 Participation............................................... 4
2.1 Designation as Eligible Employee............................ 4
2.2 Commencement of Participation............................... 4
2.3 Loss of Eligible Employee Status ........................... 4
ARTICLE 3 Contributions............................................... 5
3.1 Deferrals................................................... 5
3.2 Matching Contribution....................................... 6
3.3 Discretionary Contribution.................................. 6
3.4 Time of Contributions....................................... 6
3.5 Form of Contributions....................................... 7
</TABLE>
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<TABLE>
<CAPTION>
Section Page
<S> <C>
ARTICLE 4 Vesting..................................................... 7
4.1 Vesting of Deferrals........................................ 7
4.2 Vesting of Matching and Discretionary Contributions......... 7
4.3 Vesting in Event of Change of Control....................... 7
4.4 Amounts Not Vested.......................................... 7
ARTICLE 5 Accounts.................................................... 8
5.1 Accounts.................................................... 8
5.2 Investments, Gains and Losses............................... 9
5.3 Forfeitures................................................. 9
ARTICLE 6 Distributions............................................... 9
6.1 Distribution Election....................................... 9
6.2 Payment Options............................................. 10
6.3 Commencement of Payment upon Termination Employment......... 11
6.4 Commencement of Payment upon Death or Disability ........... 12
6.5 Minimum Distribution........................................ 12
6.6 Financial Hardship.......................................... 13
6.7 Early Distribution and Penalty.............................. 14
ARTICLE 7 Beneficiaries............................................... 14
7.1 Beneficiaries............................................... 14
7.2 Lost Beneficiary............................................ 14
ARTICLE 8 Funding..................................................... 15
8.1 Prohibition Against Funding................................. 15
8.2 Deposits in Trust........................................... 15
8.3 Indemnification of Trustee.................................. 15
8.4 Withholding of Employee Contributions....................... 16
ARTICLE 9 Claims Administration....................................... 16
9.1 General..................................................... 16
9.2 Claim Review................................................ 16
9.3 Right of Appeal............................................. 16
9.4 Review of Appeal............................................ 17
9.5 Designation................................................. 17
9.6 Arbitration................................................. 17
ARTICLE 10 General Provisions.......................................... 18
10.1 Administrator............................................... 18
10.2 No Assignment............................................... 19
10.3 No Employment Rights........................................ 19
10.4 Incompetence................................................ 19
10.5 Identity.................................................... 19
10.6 Other Benefits.............................................. 19
10.7 No Liability................................................ 20
</TABLE>
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<TABLE>
<CAPTION>
Section Page
<S> <C>
10.8 Expenses.................................................... 20
10.9 Insolvency.................................................. 20
10.10 Amendment and Termination................................... 20
10.11 Employer Determinations..................................... 20
10.12 Construction................................................ 21
10.13 Governing Law............................................... 21
10.14 Severability................................................ 21
10.15 Headings.................................................... 21
10.16 Terms....................................................... 21
</TABLE>
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VAIL RESORTS
DEFERRED COMPENSATION PLAN
The Vail Corporation, d/b/a Vail Associates, Inc. a Colorado corporation
(the "Employer"), hereby adopts the Vail Resorts Deferred Compensation Plan (the
"Plan") for the benefit of a select group of management or highly compensated
employees. This Plan is an unfunded arrangement and is intended to be exempt
from the participation, vesting, funding, and fiduciary requirements set forth
in Title I of the Employee Retirement Income Security Act of 1974, as amended.
This Plan is effective October 1, 2000.
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ARTICLE 1
Definitions
1.1 Account. The bookkeeping account established for each Participant as
provided in Section 5.1 hereof.
1.2 Administrator. Shall be a Committee consisting of those individuals
appointed from time to time by the Executive Committee of the Board of
Directors of Vail Resorts, Inc.
1.3 Beneficiary. The person, persons, trust or other entity a Participant
designates by written revocable designation filed with the Administrator
to receive payments in event of his or her death.
1.4 Board. The Executive Committee of the Board of Directors of Vail Resorts,
Inc.
1.5 Bonus. Compensation which is designated as such by the Employer and which
relates to services performed during an incentive period by an Eligible
Employee in addition to his or her Salary, including any pretax elective
deferrals from said Bonus to any Employer sponsored plan that includes
amounts deferred under a Deferral Election or a qualified cash or deferred
arrangement under Code Section 401(k) or cafeteria plan under Code Section
125.
1.6 Code. The Internal Revenue Code of 1986, as amended.
1.7 Compensation. The Participant's earned income, including Salary, Bonus and
other remuneration from the Employer.
1.8 Deferrals. The portion of Compensation that a Participant elects to defer
in accordance with Section 3.1 hereof.
1.9 Deferral Election. The separate written agreement, submitted to the
Administrator, by which an Eligible Employee agrees to participate in the
Plan and make Deferrals thereto. The Deferral Election will specify the
amount of Compensation that a Participant chooses to defer.
1.10 Disability. Any medically determinable physical or mental disorder that
renders a Participant incapable of continuing in the employment of the
Employer in his or her regular duties of employment, as determined by the
Administrator in its sole discretion.
1.11 Discretionary Contribution. An Employer Contribution as described in
Section 3.3 hereof.
1.12 Effective Date. October 1, 2000.
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1.13 Eligible Employee. Each Employee designated by the Administrator pursuant
to Section 2.1 as eligible to participate in the Plan.
1.14 Employee. Any person employed by the Employer.
1.15 Employer. The Vail Corporation, d/b/a Vail Associates, Inc. and its
subsidiaries.
1.16 Enrollment Period
a. For individuals who are Eligible Employees prior to the commencement
of a given Plan Year, Enrollment Period means the period set by the
Administrator, which ends prior to the first day of a Plan Year.
b. With respect to an Eligible Employee designated as such by the Company
effective as of any day after the first day of a Plan Year, Enrollment
Period means the period beginning with the date of his/her designation
as an Eligible Employee, and ending prior to the first day such
Eligible Employee's participation in the Plan commences.
1.17 Investment Fund or Funds. Each investment(s), which serves as a means to
measure value, increases or decreases with respect to a Participant's
Accounts.
1.18 Matching Contribution. An Employer contribution as described in Section
3.2 hereof.
1.19 Participant. An Eligible Employee who is a Participant as provided in
Article 2.
1.20 Plan. Vail Resorts Deferred Compensation Plan.
1.21 Plan Year. October 1 through December 31, 2000 for the first Plan Year;
January 1 through December 31 for each subsequent Plan Year.
1.22 Retirement. Retirement means the termination of the Participant's
employment or contract with the Employer for any reason other than death
or disability on or after age 60.
1.23 Salary. An Eligible Employee's base salary rate or rates in effect at any
time during a Plan Year, including any pretax elective deferrals from said
Salary to any Employer sponsored plan that includes amounts deferred under
a Deferral Election or a qualified cash or deferred arrangement under Code
Section 401(k) or cafeteria plan under Code Section 125.
1.24 Trust. The agreement between the Employer and the Trustee under which the
assets of the Plan are held, administered and managed, which shall conform
to the terms of Rev. Proc. 92-64.
1.25 Trustee. Wells Fargo Bank, N.A., or such other successor that shall become
trustee pursuant to the terms of the Plan.
1.26 Years of Service. A Participant's "Years of Service" shall be measured by
the total number of full twelve (12) month periods that an individual has
been an Employee.
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ARTICLE 2
Participation
2.1 Designation as Eligible Employee. The Administrator shall from time to
time specify one or more persons from a select group of management or
highly compensated employees as Eligible Employees. Such specification
shall be in writing, with a copy delivered to the Employer and the person
designated as eligible, and shall set the date as of when the person
becomes eligible.
For the October 1, 2000 - December 31, 2000 Plan Year, and for subsequent
Plan Years until the Administrator otherwise directs, an Eligible Employee
shall mean each Employee:
(a) who is designated as such by the Administrator; and,
(b) has a Salary Grade Level of 30 and above; and,
(c) earns at least $120,000 or more.
An individual's designation as an Eligible Employee may be revoked at any
time upon written notice of the Administrator to such individual.
2.2 Commencement of Participation. Each Eligible Employee shall become a
Participant at the earlier of the first day of the Plan Year or the date
on which his or her Deferral Election first becomes effective.
2.3 Loss of Eligible Employee Status.
(a) A Participant who is no longer an Eligible Employee shall not be
permitted to submit a Deferral Election and all Deferrals for such
Participant shall cease immediately upon the determination that the
Participant is no longer considered an Eligible Employee.
(b) Amounts credited to the Account of a Participant described in
subsection (a) shall continue to be held, pursuant to the terms of
the Plan and shall be distributed as provided in Article 6.
(c) A Participant who is no longer an Eligible Employee shall continue to
receive quarterly statements, and shall retain the right to make
changes in investment selection according to Section 5.2.
ARTICLE 3
Contributions
3.1 Deferrals.
(a) On an annual basis, each Participant may authorize the Employer to
reduce his/her future Compensation by a percentage not to exceed an
amount allowed for the Plan Year as established by the Employer, and
to have a corresponding amount credited to his/her Accounts, in
accordance with Article 5, by filing a Deferral Agreement with the
Administrator during his/her initial Enrollment Period or any
subsequent Enrollment Period preceding the Plan Year during which
such Compensation will be earned.
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(b) Each Eligible Employee shall deliver an annual Deferral Election to
the Employer before any Deferrals can become effective. Such Deferral
Election shall be void with respect to any Deferral unless submitted
before the beginning of the Plan Year during which the amount to be
deferred will be earned; provided, however, that in the year in which
the Plan is first adopted or an Employee is first eligible to
participate, such Deferral Election shall be filed within thirty (30)
days of the date on which the Plan is adopted or within sixty (60)
days of the date on which an Employee is first eligible to
participate, respectively, with respect to Compensation earned during
the remainder of the calendar year.
(c) The Deferral Election shall, subject to the limitation set forth in
Section 3.1(a) hereof, designate the amount of Compensation deferred
by each Participant, the beneficiary or beneficiaries of the
Participant and such other items as the Administrator may prescribe.
Such Deferral Elections shall remain effective for the Plan Year.
(d) The minimum amount of Compensation that may be deferred each Plan
Year is one thousand dollars ($1,000).
(e) The maximum amount of Compensation that may be deferred each Plan
Year is ninety-five percent (95%) of the Participant's Salary and
ninety-five percent (95%) of the Participant's Bonus.
3.2 Matching Contribution. At its sole and absolute discretion, the Board may
elect to make a Matching Contribution to the Accounts of some or all of
the Participants. The amount of the Matching Contribution, if any, shall
be determined by the Board annually and communicated to all Eligible
Employees. Such Matching Contribution shall be allocated to the
Participant's Accounts at such Participant's election made in accordance
with Section 5.1.
3.3 Discretionary Contribution. At its sole and absolute discretion, the Board
may elect to make a Discretionary Contribution to the Account of some or
all of the Participants. Nothing in this Plan, however, shall obligate the
Board to make Discretionary Contributions for the benefit of Plan
Participants in any Plan Year, nor to make identical Discretionary
Contributions for the benefit of Plan Participants in any Plan Year. The
Board expressly reserves the right to make Discretionary Contributions to
such Plan Participants in such amount or such proportions as it deems
warranted or appropriate; provided, however, the Board shall not
discriminate against any Plan Participant in making Contributions under
this provision on the basis of such Participant's race, nationality,
religion, gender, marital status or disability. Discretionary
Contributions shall be allocated to the Participant's Accounts at such
Participant's election made in accordance with Section 5.1. Nothing in
this Plan or any other agreement or document shall represent or be
construed to represent an obligation or promise of the Board to make
Discretionary Contributions on behalf of a Participant at any time.
3.4 Time of Contributions.
(a) Deferrals shall be transferred to the Trust as soon as
administratively feasible following the end of each payroll period.
The Employer shall also transmit at that time any necessary
instructions regarding the allocation of such amounts among the
Accounts of Participants.
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(b) Matching Contributions and Discretionary Contributions shall be
transferred to the Trust at such time as the Employer shall
determine. The Employer shall also transmit at that time any
necessary instructions regarding the allocation of such amounts among
the Accounts of Participants.
3.5 Form of Contributions. All Deferrals, Matching Contributions and
Discretionary Contributions to the Trust shall be made in the form of cash
or cash equivalents of US currency.
ARTICLE 4
Vesting
4.1 Vesting of Deferrals. A Participant shall have a vested right to the
portion of his or her Account attributable to Deferrals and any earnings
on the investment of such Deferrals.
4.2 Vesting of Matching and Discretionary Contributions. Upon completion of 1
Year of Service, a Participant shall have a 25% vested right to the
portion of his or her account attributable to Matching Contributions and
any earning thereon; upon completion of 2 Years of Service, a 50% vested
right; 3 Years of Service, a 75% vested right; 4 Years of Service a 100%
vested right. Discretionary Contributions shall vest as determined by the
Board. The Board may direct the Administrator to accelerate the vesting on
the matching and or discretionary contributions at any time.
4.3 Vesting in the Event of Disability or Death. In the event of a termination
based on a Disability, as defined herein, the Participant shall be
considered 100% vested in their Deferrals and any Matching Contributions
(not Discretionary Contributions, unless the Administrator is otherwise
directed by the Board) credited to the Participant's Account as of the
effective date of termination. In the event of the Participant's death
while employed, the Participant shall be considered 100% vested in their
Deferrals and any Matching Contributions (not Discretionary Contributions,
unless the Administrator is otherwise directed by the Board) credited to
the Participant's Account as of the date of Participant's death.
4.4 Amounts Not Vested. Any amounts credited to a Participant's Account that
are not vested at the time of his or her termination of employment with
the Employer shall be forfeited.
ARTICLE 5
Accounts
5.1 Accounts. The Administrator shall establish and maintain a bookkeeping
account in the name of each Participant. The Administrator shall also
establish subaccounts, as provided in subsection (a), (b), and/or (c),
below, as elected by the Participant pursuant to Article 3.
(a) A Retirement Account shall be established for each Participant. His
or her Retirement Account shall be credited with Deferrals (as
specified in the Participant's Deferral Election) and the
Participant's allocable share of any earnings or losses on the
foregoing. Each Participant's Account shall be reduced by any
distributions made plus any federal, state and/or local tax
withholding and any social security withholding tax as may be
required by law.
(b) A Participant may elect to establish one or more Education Accounts
in the name of a "Student" at the time of his or her Deferral. For
purposes of this Article, Student shall mean an individual who has
not yet attained the age of thirteen (13) at the time the account is
initially established. Each
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Participant's Education Account shall be credited with Deferrals (as
specified in the Participant's Deferral Election) and the
Participant's allocable share of any earnings or losses on the
foregoing. Each Participant's Account shall be reduced by any
distributions made plus any federal, state and/or local tax
withholding and any social security withholding tax as may be
required by law.
(c) A Participant may elect to establish one or more Personal Goals
Accounts by designating a year of payout at the time the account is
initially established. The minimum initial deferral period for
Personal Goals subaccounts shall be five (5) years. Each
Participant's Personal Goals Account shall be credited with Deferrals
(as specified in the Participant's Deferral Election) and the
Participant's allocable share of any earnings or losses on the
foregoing. Each Participant's Account shall be reduced by any
distributions made plus any federal, state and/or local tax
withholding and any social security withholding tax as may be
required by law.
(d) The maximum number of Education Sub-Accounts will be four (4) and the
maximum number of Personal Goals Sub-Accounts will be five (5). The
maximum number of Education and/or Personal Goals Sub-Accounts that a
Participant may have at one time will be nine (9).
5.2 Investments, Gains and Losses.
(a) Trust assets shall be invested by the Trustee in accordance with
written directions from the Employer. Such directions shall provide
Trustee with the investment discretion to invest the above-referenced
amounts within broad guidelines established by Trustee and Employer
as set forth therein.
(b) The Administrator shall adjust the amounts credited to each
Participant's Account to reflect Deferrals, investment experience,
distributions and any other appropriate adjustments. Such adjustments
shall be made as frequently as is administratively feasible.
(c) A Participant may direct that his or her Retirement Account,
Education Account and or Personal Goals Account established pursuant
to Section 5.1 may be valued as if they were invested in one or more
Investment Funds in multiples of one percent (1%) of the balance in
an Account. A Participant may change his or her selection of
Investment Funds no more than six (6) times each Plan Year. An
election shall be effective as soon as administratively feasible
following the date of the change as indicated in writing by the
Participant.
5.3 Forfeitures. Any forfeitures from a Participant's Account shall continue
to be held in the Trust, and shall be used to reduce the Employer's future
Matching and Discretionary Contributions under the Plan. If no such
further contributions will be made, then such forfeitures shall be
returned to the Employer.
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ARTICLE 6
Distributions
6.1 Distribution Election. Each Participant shall designate on his or her
Deferral Election the timing of his or her distribution by indicating the
type of account as described under Section 5.1. A Participant may not
modify, alter, amend or revoke such designation for a Plan Year after such
Plan year begins. Further, amounts in one Account cannot be transferred to
another Account. Each Participant shall also designate the manner in which
Retirement Account payments shall be made from the choices available under
Section 6.2 (a) hereof.
6.2 Payment Options.
(a) Retirement Account payments shall commence as soon as administratively
feasible immediately after the Participant's Retirement. The
Participant may elect any one of the following forms of payment so
long as the election is made in writing, delivered to the
Administrator at least one year prior to the year in which the
Participant's benefit becomes payable.
(i) The normal form of payment of benefits hereunder, and the form
of payments to be used if no other election is made, shall be a
single lump-sum distribution of the value of the Participant's
Retirement Account.
(ii) A Participant entitled to a benefit hereunder may elect to
receive his/her Retirement Account in substantially equal
annual installments over a period not to exceed ten (10) years.
The amount of the substantially equal payments described above
shall be determined by multiplying the Participant's Retirement
Account by a fraction, the denominator of which in the first
year of payment equals the number of years over which benefits
are to be paid, and the numerator of which is one (1).
The amounts of the payments for each succeeding year shall be
determined by multiplying the Participant's Retirement Account
as of the applicable anniversary of the Participant's
Retirement Date by a fraction, the denominator of which equals
the number of remaining years over which benefits are to be
paid, and the numerator of which is one (1).
(iii) A Participant entitled to a benefit hereunder may elect to
defer commencement of any distribution of his/her Retirement
Account for a period not to exceed three (3) years after
retirement. Amounts credited to the Retirement Account of a
Participant in this subsection shall continue to be held
pursuant to the terms and conditions of this Plan.
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(b) Education Account payouts shall be paid in four annual installments on
July 1 (or as soon as administratively feasible) of the calendar year
in which the Student reaches age eighteen (18) and the three (3)
anniversaries thereof in the following amounts:
Year 1 25% of the account balance
Year 2 33% of the account balance
Year 3 50% of the account balance
Year 4 100% of the account balance
(c) Personal Goals Account payouts shall be paid in one lump sum payment
on January 1 (or as soon as administratively feasible) of the calendar
year selected by the Participant on his or her Deferral Election.
6.3 Commencement of Payment upon Termination of Employment. Upon the
termination of Participant's employment with the Employer for any reason
other than death or Disability, the terminated Participant shall be
entitled to the following applicable account management procedures:
(a) Retirement Account Credits
(i) if the Participant's Retirement Account has a credited balance
equal to, or greater than, $10,000 on the effective date of
termination, such credited balance shall be distributed to the
Participant pursuant to the method selected by the Participant
on his or her Deferral Agreement; or
(ii) if Participant's Retirement Account has a credited balance less
than $10,000, on the effective date of termination, the
Participant's credited amount will be distributed in a lump sum
to the Participant as soon as administratively feasible.
(b) Education Account Credits
(i) if the Participant's Education Account(s) has a credited balance
equal to, or greater than, $4,000 on the effective date of
termination, such credited balance shall be distributed to the
Participant pursuant to the method selected by the Participant
on his or her Deferral Agreement; or
(ii) if Participant's Education Account(s) has a credited balance
less than $4,000, on the effective date of termination, the
Participant's credited amount will be distributed in a lump sum
to the Participant as soon as administratively feasible.
(c) Personal Goals Account
(i) if the Participant's Personal Goals Account(s) has a credited
balance equal to, or greater than, $10,000 on the effective date
of termination, such credited balance shall be distributed to
the Participant pursuant to the method selected by the
Participant on his or her Deferral Agreement; or
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(ii) if Participant's Personal Goals Account(s) has a credited
balance less than $10,000, on the effective date of termination,
the Participant's credited amount will be distributed in a lump
sum to the Participant as soon as administratively feasible.
6.4 Commencement of Payment upon Death or Disability.
(a) Upon the death of a Participant, all amounts credited to his or her
Account(s) shall be paid, as soon as administratively feasible, to his
or her Beneficiary or Beneficiaries, as determined under Article 7
hereof, in a lump sum.
(b) Upon the Disability of a Participant, all amounts credited to his or
her Account(s) shall be paid to the Participant, in a lump-sum
payment, as soon as administratively feasible.
6.5 Minimum Distribution.
(a) Notwithstanding any provision to the contrary, if the vested balance
of a Participant's Account at the time of a termination due to
Retirement is less than $10,000, then the Participant shall be paid
his or her benefits as a single lump sum as soon as administratively
feasible following said termination.
(b) Notwithstanding any provision to the contrary, if the balance of a
Participant's Education Account(s) at the time benefit payments are to
commence is less than $4,000, then the Participant shall be paid such
Education Account(s) benefits as a single lump sum as soon as
administratively feasible following said commencement date.
6.6 Financial Hardship. The Administrator may permit an early distribution of
part or all of any deferred amounts; provided, however, that such
distribution shall be made only if the Administrator, in its sole
discretion, determines that the Participant has experienced an unforeseen
emergency that is caused by an event beyond the control of the Participant
and that would result in severe financial hardship to the Participant if
early distribution were not permitted. Any distribution pursuant to this
subsection is limited to the amount necessary to meet the hardship.
6.7 Early Distribution and Penalty. A Participant may elect to receive a
distribution of up to ninety percent (90%) of the vested amounts in his or
her Account on a date prior to that established under the Plan. If such an
early distribution is requested, the Plan Administrator shall deduct from
the Participant's account an additional ten percent (10%) of the vested
amount withdrawn. This additional amount withdrawn by the Plan
Administrator shall be considered an early distribution penalty, and shall
be treated as forfeited by the participant. Participants who receive Early
Distributions shall lose their status as Eligible Employees and will be
barred from further participation in the Plan until a minimum of twelve
(12) months have passed
ARTICLE 7
Beneficiaries
7.1 Beneficiaries. Each Participant may from time to time designate one or more
persons (who may be any one or more members of such person's family or
other persons, administrators, trusts, foundations or other entities) as
his or her Beneficiary under the Plan. Such designation shall be made on a
form prescribed by the Administrator. Each Participant may at any time and
from time to time, change any previous
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Beneficiary designation, without notice to or consent of any previously
designated Beneficiary, by amending his or her previous designation on a
form prescribed by the Administrator. If no person shall be designated by
the Participant as a Beneficiary, or if the designated Beneficiary shall
not survive the Participant, payment of his/her interest shall be made to
the Participant's estate. If more than one person is the beneficiary of a
deceased Participant, each such person shall receive a pro rata share of
any death benefit payable unless otherwise designated on the applicable
form.
7.2 Lost Beneficiary.
(a) All Participants and Beneficiaries shall have the obligation to keep
the Administrator informed of their current address until such time as
all benefits due have been paid.
(b) If a Participant or Beneficiary cannot be located by the Administrator
exercising due diligence, then, in its sole discretion, the
Administrator may presume that the Participant or beneficiary is
deceased for purposes of the Plan and all unpaid amounts (net of due
diligence expenses) owed to the Participant or beneficiary shall be
paid accordingly or, if a Beneficiary cannot be so located, then such
amounts may be forfeited. Any such presumption of death shall be
final, conclusive and binding on all parties. Notwithstanding the
foregoing, if any such Beneficiary is located within five years from
the date of any such forfeiture, such Beneficiary shall be entitled to
receive the amount previously forfeited.
ARTICLE 8
Funding
8.1 Prohibition Against Funding. Should any investment be acquired in
connection with the liabilities assumed under this Plan, it is expressly
understood and agreed that the Participants and Beneficiaries shall not
have any right with respect to, or claim against, such assets nor shall any
such purchase be construed to create a trust of any kind or a fiduciary
relationship between the Employer and the Participants, their Beneficiaries
or any other person. Any such assets shall be and remain a part of the
general, unpledged, unrestricted assets of the Employer, subject to the
claims of its general creditors. It is the express intention of the parties
hereto that this arrangement shall be unfunded for tax purposes and for
purposes of Title I of the Employee Retirement Income Security Act of 1974,
as amended. Each Participant and beneficiary shall be required to look to
the provisions of this Plan and to the Employer itself for enforcement of
any and all benefits due under this Plan, and to the extent any such person
acquires a right to receive payment under this Plan, such right shall be no
greater than the right of any unsecured general creditor of the Employer.
The Employer or the Trust shall be designated the owner and beneficiary of
any investment acquired in connection with its obligation under this Plan.
8.2 Deposits in Trust. Notwithstanding paragraph 8.1, or any other provision of
this Plan to the contrary, the Employer may deposit into the Trust any
amounts it deems appropriate to pay the benefits under this Plan. The
amounts so deposited may include all contributions made pursuant to a
Deferral Election by a Participant.
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8.3 Indemnification of Trustee.
(a) The Trustee shall not be liable for the making, retention, or sale of
any investment or reinvestment made by it, as herein provided, nor for
any loss to, or diminution of, the Trust assets, unless due to its own
negligence, willful misconduct or lack of good faith.
(b) Such Trustee shall be indemnified and saved harmless by the Employer
from and against all personal liability to which it may be subject by
reason of any act done or omitted to be done in its official capacity
as Trustee in good faith in the administration of the Plan and Trust,
including all expenses reasonably incurred in its defense in the event
the Employer fails to provide such defense upon the request of the
Trustee. The Trustee is relieved of all responsibility in connection
with its duties hereunder to the fullest extent permitted by law,
short of breach of duty to the beneficiaries.
8.4 Withholding of Employee Contributions. The Administrator is authorized to
make any and all necessary arrangements with the Employer in order to
withhold the Participant's Deferrals under Section 3.1 hereof from his or
her Compensation. The Administrator shall determine the amount and timing
of such withholding.
ARTICLE 9
Claims Administration
9.1 General. If a Participant, Beneficiary or his/her representative is denied
all or a portion of an expected Plan benefit for any reason and the
Participant, Beneficiary or his/her representative desires to dispute the
decision of the Administrator, he/she must file a written notification of
his/her claim with the Administrator.
9.2 Claim Review. Upon receipt of any written claim for benefits, the
Administrator shall be notified and shall give due consideration to the
claim presented. If the claim is denied to any extent by the Administrator,
the Administrator shall furnish the claimant with a written notice setting
forth (in a manner calculated to be understood by the claimant):
(a) the specific reason or reasons for denial of the claim;
(b) a specific reference to the Plan provisions on which the denial is
based;
(c) a description of any additional material or information necessary for
the claimant to perfect the claim and an explanation of why such
material or information is necessary; and
(d) an explanation of the provisions of this Article.
9.3 Right of Appeal. A claimant who has a claim denied under Section 9.2 may
appeal to the Administrator for reconsideration of that claim. A request
for reconsideration under this section must be filed by written notice
within sixty (60) days after receipt by the claimant of the notice of
denial under Section 9.2.
9.4 Review of Appeal. Upon receipt of an appeal the Administrator shall
promptly take action to give due consideration to the appeal. Such
consideration may include a hearing of the parties involved, if the
Administrator feels such a hearing is necessary. In preparing for this
appeal the claimant shall be given the right to review pertinent documents
and the right to submit in writing a statement of issues and comments.
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After consideration of the merits of the appeal the Administrator shall
issue a written decision which shall be binding on all parties subject to
Section 9.6 below. The decision shall be written in a manner calculated to
be understood by the claimant and shall specifically state its reasons and
pertinent Plan provisions on which it relies. The Administrator's decision
shall be issued within sixty (60) days after the appeal is filed, except
that if a hearing is held the decision may be issued within one hundred
twenty (120) days after the appeal is filed.
9.5 Designation. The Administrator may designate any other person of its
choosing to make any determination otherwise required under this Article.
9.6 Arbitration. A claimant whose appeal has been denied under section 9.4
shall have the right to submit said claim to final and binding arbitration,
in accordance with the rules for contractual disputes, by a single
arbitrator of the Judicial Arbiter Group ("JAG"), in Denver, Colorado, and
judgment on the award rendered may be entered in any court having
jurisdiction. The arbiter shall not, however, have the power to direct
equitable relief. Any such request for arbitration must be filed by written
demand to the Administrator within sixty (60) days after receipt of the
decision of the regarding the appeal. The costs and expenses of
arbitration, including the fees of JAG, shall be borne by the non-
prevailing party. The prevailing party shall also recover, as expenses, all
reasonable attorneys' fees incurred by it in connection with the
arbitration and any appeals therefrom.
ARTICLE 10
General Provisions
10.1 Administrator.
(a) The committee constituting the Administrator shall elect a chairman
and shall adopt such rules as it deems desirable for the conduct of
its affairs and for the administration of the Plan. It may appoint
agents (who need not be members of the committee) to whom it may
delegate such powers as it deems appropriate, except that any dispute
shall be determined by the committee. The committee may make its
determinations with or without meetings. It may authorize one or more
of its members or agents to sign instructions, notices and
determinations on its behalf. The action of a majority of the
committee shall constitute the action of the Administrator.
(b) The Administrator is expressly empowered to limit the amount of
compensation that may be deferred; to deposit amounts into trust in
accordance with Section 8.2 hereof; to interpret the Plan, and to
determine all questions arising in the administration, interpretation
and application of the Plan; to employ actuaries, accountants,
counsel, and other persons it deems necessary in connection with the
administration of the Plan; to request any information from the
Employer it deems necessary to determine whether the Employer would be
considered insolvent or subject to a proceeding in bankruptcy; and to
take all other necessary and proper actions to fulfill its duties as
Administrator.
(c) The Administrator shall not be liable for any actions by it hereunder,
unless due to its own negligence, willful misconduct or lack of good
faith.
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(d) The Administrator shall be indemnified and saved harmless by the
Employer from and against all personal liability to which it may be
subject by reason of any act done or omitted to be done in its
official capacity as Administrator in good faith in the administration
of the Plan and Trust, including all expenses reasonably incurred in
its defense in the event the Employer fails to provide such defense
upon the request of the Administrator. The Administrator is relieved
of all responsibility in connection with its duties hereunder to the
fullest extent permitted by law, short of breach of duty to the
beneficiaries.
10.2 No Assignment. No benefit under the Plan shall be subject in any manner to
anticipation, alienation, sale, transfer, assignment, pledge encumbrance or
charge, and any such action shall be void for all purposes of the Plan. No
benefit shall in any manner be subject to the debts, contracts,
liabilities, engagements or torts of any person, nor shall it be subject to
attachments or other legal process for or against any person, except to
such extent as may be required by law.
10.3 No Employment Rights. Participation in this Plan shall not be construed to
confer upon any Participant the legal right to be retained in the employ of
the Employer, or give a Participant or beneficiary, or any other person,
any right to any payment whatsoever, except to the extent of the benefits
provided for hereunder. Each Participant shall remain subject to discharge
to the same extent as if this Plan had never been adopted.
10.4 Incompetence. If the Administrator determines that any person to whom a
benefit is payable under this Plan is incompetent by reason of physical or
mental disability, the Administrator shall have the power to cause the
payments becoming due to such person to be made to another individual for
the Participant's benefit without responsibility of the Administrator or
the Employer to see to the application of such payments. Any payment made
pursuant to such power shall, as to such payment, operate as a complete
discharge of the Employer, the Administrator and the Trustee.
10.5 Identity. If, at any time, any doubt exists as to the identity of any
person entitled to any payment hereunder or the amount or time of such
payment, the Administrator shall be entitled to hold such sum until such
identity or amount or time is determined or until an order of a court of
competent jurisdiction is obtained. The Administrator shall also be
entitled to pay such sum into court in accordance with the appropriate
rules of law. Any expenses incurred by the Employer, Administrator, and
Trust incident to such proceeding or litigation shall be charged against
the Account of the affected Participant.
10.6 Other Benefits. The benefits of each Participant or beneficiary hereunder
shall be in addition to any benefits paid or payable to or on account of
the Participant or beneficiary under any other pension, disability, annuity
or retirement plan or policy whatsoever.
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10.7 No Liability. No liability shall attach to or be incurred by any manager
of the Employer, Trustee or any Administrator under or by reason of the
terms, conditions and provisions contained in this Plan, or for the acts
or decisions taken or made thereunder or in connection therewith; and as a
condition precedent to the establishment of this Plan or the receipt of
benefits thereunder, or both, such liability, if any, is expressly waived
and released by each Participant and by any and all persons claiming under
or through any Participant or any other person. Such waiver and release
shall be conclusively evidenced by any act or participation in or the
acceptance of benefits or the making of any election under this Plan.
10.8 Expenses. All expenses incurred in the administration of the Plan, whether
incurred by the Employer or the Plan, shall be paid by the Employer.
10.9 Insolvency. Should the Employer be considered insolvent (as defined by the
Trust), the Employer, through its Board and chief executive officer, shall
give immediate written notice of such to the Administrator of the Plan and
the Trustee. Upon receipt of such notice, the Administrator or Trustee
shall cease to make any payments to Participants who were Employees of the
Employer or their beneficiaries and shall hold any and all assets
attributable to the Employer for the benefit of the general creditors of
the Employer.
10.10 Amendment and Termination.
(a) Except as otherwise provided in this section, the Employer shall have
the sole authority to modify, amend or terminate this Plan; provided,
however, that any modification or termination of this Plan shall not
reduce, without the consent of a Participant, a Participant's right to
any amounts already credited to his or her Account, or lengthen the
time period for a payout from an established Account, on the day
before the effective date of such modification or termination.
Following such termination, payment of such credited amounts may be
made in a single sum payment if the Employer so designates. Any such
decision to pay in a single sum shall apply to all Participants.
(b) Any funds remaining in the Trust after termination of the Plan and
satisfaction of all liabilities to Participants and others, shall be
returned to the Employer.
10.11 Employer Determinations. Any determinations, actions or decisions of the
Employer (including but not limited to, Plan amendments and Plan
termination) shall be made by the Board in accordance with its established
procedures or by such other individuals, groups or organizations that have
been properly delegated by the Board to make such determination or
decision.
10.12 Construction. All questions of interpretation, construction or application
arising under or concerning the terms of this Plan shall be decided by the
Administrator, in its sole and final discretion, whose decision shall be
final, binding and conclusive upon all persons.
10.13 Governing Law. This Plan shall be governed by, construed and administered
in accordance with the applicable laws of the State of Colorado.
10.14 Severability. Should any provision of the Plan or any regulations adopted
thereunder be deemed or held to be unlawful or invalid for any reason,
such fact shall not adversely affect the other provisions or regulations
unless such invalidity shall render impossible or impractical the
functioning of the Plan and, in such case, the appropriate parties shall
immediately adopt a new provision or regulation to take the place of the
one held illegal or invalid.
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10.15 Headings. The Article headings contained herein are inserted only as a
matter of convenience and for reference and in no way define, limit,
enlarge or describe the scope or intent of this Plan nor in any way shall
they affect this Plan or the construction of any provision thereof.
10.16 Terms. Capitalized terms shall have meanings as defined herein. Singular
nouns shall be read as plural, masculine pronouns shall be read as
feminine, and vice versa, as appropriate.
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IN WITNESS WHEREOF, THE VAIL CORPORATION, D/B/A VAIL ASSOCIATES, INC. has
caused this instrument to be executed by its duly authorized officer, effective
as of this 28th day of September 2000.
THE VAIL CORPORATION
D/B/A VAIL ASSOCIATES, INC.
By: /S/ ANDREW DALY
--------------------------------
Title: President
--------------------------------
ATTEST:
By: _______________________
Title: _______________________
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