As filed with the Securities and Exchange Commission on March 13, 2000
Registration No. 333-
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
-------------------------
VAIL RESORTS, INC.
(Exact name of registrant as specified in its charter)
Delaware 51-0291762
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
Post Office Box 7
Vail, Colorado 81658
(Address (including zip code) of Principal Executive Offices)
-------------------------
Vail Resorts, Inc.
1999 LONG TERM INCENTIVE AND SHARE AWARD PLAN
(Full title of the plan)
-------------------------
Martha D. Rehm, Esq.
Senior Vice President and General Counsel
Vail Resorts, Inc.
Post Office Box 7
Vail, Colorado 81658
(970) 845-2500
(Name, address (including zip code) and telephone number (including area
code) of agent for service in the United States)
-------------------------
Copy to:
James J. Clark, Esq.
Cahill Gordon & Reindel
80 Pine Street
New York, NY 10005-1702
-------------------------
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
============================================================================================================
Title of Amount Proposed Maximum Proposed Maximum Amount of
Securities to to be Offering Aggregate Offering Registration
be Registered Registered(1) Price Per Share (2) Price (2) Fee (2)
- ------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock,
$.01 Par Value 2,500,000 $15.69 $39,225,000.00 $10,355.40
shares
============================================================================================================
</TABLE>
(1) Pursuant to Rule 416(c) under the Securities Act of 1933, as amended (the
"Act"), there is also being registered an indeterminate number of plan
interests in the Vail Resorts, Inc. 1999 Long Term Incentive and Share
Award Plan.
(2) Estimated solely for purposes of calculating the registration fee. Pursuant
to Rules 457(c) and 457(h) under the Act, the registration fee has been
calculated based on the average of the high and low sale prices reported
for the Common Stock of Vail Resorts, Inc. on March 6, 2000, which was
$15.69 per share, as reported on the New York Stock Exchange.
================================================================================
<PAGE>
EXPLANATORY NOTE
Vail Resorts, Inc. (the "Company") has prepared this Registration Statement
in accordance with the requirements of Form S-8 under the Securities Act of
1933, as amended (the "Act"), to register 2,500,000 shares of common stock, $.01
par value, of the Company issuable pursuant to the Company's 1999 Long Term
Incentive and Share Award Plan (the "Plan").
This Registration Statement contains two parts. The first part contains a
reoffer prospectus prepared in accordance with the requirements of Part I of
Form S-3 pursuant to Section C of the General Instructions to Form S-8. The
reoffer prospectus may be used for reofferings and resales on a continuous or
delayed basis in the future of "control securities" which have been or may be
issued pursuant to the Plan to employees of the Company who may be considered
affiliates as defined by Rule 405 under the Act.
The second part contains "Information Required in the Registration
Statement" pursuant to Part II of Form S-8. Pursuant to the Note to Part I of
Form S-8, the information relating to the Plan specified by Part I is not filed
with the Securities and Exchange Commission (the "Commission"), but documents
containing such information have been or will be sent or given to employees and
directors as specified by Rule 428(b)(1). Such document(s) are not being filed
with the Commission but constitute (along with the documents incorporated by
reference into the Registration Statement pursuant to Item 3 of Part II hereof)
a prospectus that meets the requirements of Section 10(a) of the Act.
<PAGE>
PROSPECTUS
Vail Resorts, Inc.
2,500,000 Shares
Common Stock
($.01 par value)
----------------------
Certain of our stockholders are using this prospectus to offer shares of
common stock, $.01 par value, of the Company (the "Shares") they received from
us pursuant to our 1999 Long Term Incentive and Share Award Plan. Some of these
stockholders may be considered our "affiliates," as defined in Rule 405 under
the Securities Act of 1933, as amended.
We expect that sales made pursuant to this prospectus will be made:
-- in broker's transactions;
-- in transactions directly with market makers; or
-- in negotiated sales or otherwise.
The selling stockholders will determine when they will sell their Shares,
and in all cases they will sell their Shares at the current market price or at
prices negotiated at the time of the sale. We will not receive any proceeds from
these sales.
The brokers and dealers the selling stockholders utilize in selling these
Shares may receive compensation in the form of underwriting discounts,
concessions, or commissions from the sellers or purchasers of the Shares. Any
compensation may exceed customary commissions. The selling stockholders and the
brokers and dealers they utilize may be deemed to be "underwriters" within the
meaning of the securities laws, and any commissions received and any profits
realized by them on the sale of Shares may be considered to be underwriting
compensation.
The Shares are listed on the New York Stock Exchange under the symbol
"MTN". On March 9, 2000, the last reported sale price of the Shares as reported
on the New York Stock Exchange was $17.00 per share.
Our principal executive offices are located at Post Office Box 7, Vail,
Colorado 81658, and our telephone number is (970) 476-5601.
----------------------
This investment involves risks. See the Risk Factors section beginning on page
3.
----------------------
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of the securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
----------------------
This prospectus is dated March 13, 2000.
<PAGE>
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents filed by us with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference as of their
respective dates of filing and shall be deemed to be a part hereof:
1. Our Annual Report on Form 10-K for the year ended July 31, 1999;
2. Our Quarterly Report on Form 10-Q, for the quarter ended October 31,
1999;
3. Our Definitive Proxy Statement on Schedule 14A, filed with the
Commission on November 12, 1999;
4. The description of our Common Stock contained in our Registration
Statement on Form S-2 (File No. 333-5341) dated June 6, 1996; and
5. Our Form 8-A filed with the Commission on July 3, 1996, including any
amendment or report filed for the purpose of updating the Form 8-A.
All documents filed by us pursuant to Section 13(a), 13(c), 14, or 15(d) of
the Securities Exchange Act of 1934, as amended (the "1934 Act") subsequent to
the date of this prospectus and before the termination of the offering shall be
deemed to be incorporated by reference and a part of this prospectus from the
date such documents are filed.
For purposes of this prospectus, any statement in a document incorporated
or deemed incorporated by reference is modified or superseded to the extent that
a statement in this prospectus, or in any subsequently filed document which is
or is deemed to be incorporated by reference, modifies or supersedes it. Any
statement so modified or superseded is not, except as so modified or superseded,
to constitute a part of this prospectus.
We will provide without charge to each person, including any beneficial
owner, to whom a copy of this prospectus has been delivered, on the written or
oral request of any such person, a copy of any or all documents referred to
above which have been or may be incorporated by reference in this prospectus
(not including exhibits to such incorporated information that are not
specifically incorporated by reference into such information). Requests for such
copies should be directed to us at the following address: Vail Resorts, Inc.,
Post Office Box 7, Vail, Colorado 81658, Attention: Martha Rehm, Senior Vice
President and General Counsel, telephone number: (970) 845-2500.
2
<PAGE>
RISK FACTORS
Before you invest in the Shares, you should consider carefully the
following factors, in addition to the other information contained in this
prospectus.
We have a significant amount of indebtedness. At January 31, 2000, we had
$401.0 million of indebtedness, representing approximately 46% of our total
capitalization. We, along with our subsidiaries, may incur additional
indebtedness from time to time to finance acquisitions, provide for working
capital or capital expenditures or for other purposes.
Our high level of indebtedness could have important consequences to you,
including limiting our ability to:
o obtain additional financing for acquisitions, working capital, capital
expenditures or other purposes,
o use operating cash flow in other areas of our business because we must
dedicate a substantial portion of these funds to make principal
payments and fund debt service requirements,
o borrow additional funds or dispose of assets,
o compete with others who are not as highly leveraged, and
o react to changing market conditions, changes in our industry and
economic downturns.
We currently expect that we will be able to service our indebtedness out of
cash flow from operations. If we are unable to generate sufficient cash flow to
meet our debt service obligations, we will have to pursue one or more
alternatives, such as reducing or delaying capital expenditures, refinancing
debt, selling assets or raising equity capital. Each of these alternatives is
dependent upon financial, business and other general economic factors that
affect us, many of which are beyond our control. While we believe that our cash
flow from operations will provide an adequate source of long-term liquidity, a
significant drop in operating cash flows resulting from economic conditions,
competition or other uncertainties beyond our control would increase the need
for alternative sources of liquidity.
Our future growth requires additional capital and availability is not
assured. We intend to make significant investments in our resorts to maintain
our competitive position. We spent approximately $65.2 million in the fiscal
year ended July 31, 1999 on resort capital expenditures and expect to continue
making substantial resort capital expenditures. We could finance future
expenditures from any of the following sources:
o cash flow from operations,
o bank borrowings,
o public offerings of debt or equity,
o private placements of debt or equity, or
o some combination of the above.
We might not be able to obtain financing for future expenditures on
favorable terms.
Our recent or future acquisitions might not be successful. In recent years,
we have acquired several major resorts, including Keystone, Breckenridge, Grand
Teton Lodge Company and a number of real estate developments. Although we
believe we have enhanced our earnings and achieved cost savings by integrating
these acquisitions into our operations, we cannot assure you that we will be
able to continue this successful integration, manage these acquired properties
profitably or increase our profits from these operations. We could face various
risks from additional acquisitions, including:
3
<PAGE>
o inability to integrate acquired businesses into our operations,
o increased goodwill amortization,
o diversion of our management's attention, and
o unanticipated problems or liabilities.
These problems from future acquisitions could adversely affect our
operations and financial performance.
Our resort business is highly seasonal. We currently generate approximately
75% of our revenue during the ski season, from November to April. We rely on
borrowings under our credit facility to support our capital requirements during
the unprofitable period between ski seasons, from May to October. If we are
unable to comply with the conditions of our credit facility or if the financing
we receive is insufficient for our needs, our inability to obtain adequate
financing outside of the ski season could have a material adverse effect on us.
Grand Teton Lodge Company, which we recently acquired, realizes most of its
revenues between May and October. However, this will only partially offset the
seasonal nature of our ski business.
Our future development might not be successful. We have significant
development plans for our resort and real estate operations. We could experience
significant difficulties completing these projects, including:
o delays in completion,
o our cost estimates may prove inaccurate,
o difficulty in receiving the necessary regulatory approvals, or
o we may not benefit from the projects as we expected.
We may not be able to fund these projects with cash flow from operations
and borrowings under our credit facility if we faced these difficulties.
Our ski resorts face significant competition. There is substantial
competition among ski resorts for customers in our industry. The factors that
are important to these customers include:
o proximity to population centers,
o availability and cost of transportation to ski areas,
o ease of travel to ski areas (including direct flights by major
airlines),
o pricing of products and services,
o snowmaking facilities,
o type and quality of skiing offered,
o duration of the ski season,
o weather conditions,
o number, quality and price of related services and lodging, and
4
<PAGE>
o reputation.
We have many competitors for our ski vacationers, including ski resorts in
Utah, California, Nevada, New England and the other major resorts in Colorado.
Our destination guests can choose from any of these alternatives, as well as
skiing and non-skiing vacation destinations around the world. Our day skier
customers can choose from a number of nearby competitors, including Copper
Mountain, Telluride, Steamboat Springs, Winter Park and the Aspen resorts, as
well as other forms of leisure such as attendance at movies, sporting events and
participation in other indoor and outdoor recreational activities. This
competition may adversely affect our skier days and the pricing of our products
and services.
We rely on government permits. Virtually all of our ski trails and related
activities on Vail, Breckenridge, Keystone and a substantial portion on Beaver
Creek are located on federal land. The United States Forest Service has granted
us permits to use these lands, but maintains the right to review and approve the
location, design and construction of improvements in these areas and on many
operational matters. The Forest Service can terminate most of these permits if
required in the public interest; however, the permit for a large part of the
Beaver Creek property is terminable at will. Although we do not know of any
permit used by a major ski resort then in operation that has been terminated by
the Forest Service over the opposition of the permitee, a termination of any of
our permits would adversely affect our business and operations.
We have applied for several new permits for improvements and new
development and to renew and modify an existing permit. We have also sought to
renew and unify our permits for use of large parts of our Beaver Creek property.
While these efforts, if not successful, could impact our expansion efforts as
currently contemplated, we do not believe they would adversely affect our
results of operations or financial condition. Furthermore, Congress may increase
the fees we pay to the Forest Service for use of these federal lands.
Grand Teton Lodge Company operates three resort properties within Grand
Teton National Park under a concession contract with the National Park Service.
The concession contract expires at the end of 2002, at which time the contract
renewal will be subject to a competitive bidding process. Should we not receive
the renewal of the concession contract, we would be compensated for the value of
our "possessory interest" in the assets of the three resort properties operated
under the concession contract, which is generally defined as the replacement
cost of such assets less depreciation.
We are subject to the risk of unfavorable weather conditions. We depend
upon favorable weather conditions and adequate snowfall during the winter ski
season to attract guests to our ski resorts. For example, our ski resorts were
affected by aberrant weather patterns during the 1998-1999 ski season, which
caused much of our skiing terrain to be closed during the Christmas and New
Year's holidays. Our operating results could also be adversely affected by
unfavorable weather conditions and inadequate snowfall in future periods.
We are subject to the risk of an economic slowdown. Because our resorts
derive a significant portion of their revenues from the worldwide leisure
market, an economic recession or other significant economic slowdown could
adversely affect our business. We cannot assure you that a decrease in the
amount of discretionary spending by the public in the future would not have an
adverse effect on our business.
Apollo Ski Partners has influence over us. Apollo Ski Partners owns
approximately 99.9% of our outstanding shares of Class A Common Stock, giving
them approximately 22% of the combined voting power with respect to all matters
submitted for a vote of all stockholders. The holders of Class A Common Stock
elect a class of directors that constitutes two-thirds of our board of
directors. Accordingly, Apollo Ski Partners and, indirectly, Apollo Advisors,
L.P. (which indirectly controls Apollo Ski Partners) will be able to elect
two-thirds of our board of directors and control the approval of matters
requiring approval by the board of directors, including mergers, liquidations
and asset acquisitions and dispositions. In addition, Apollo Ski Partners and
Apollo Advisors, L.P. may be able to significantly influence decisions on
matters submitted for stockholder consideration.
Future changes in the real estate market could affect the value of our
investments. We have extensive real estate holdings in proximity to our mountain
resorts. We have invested approximately $32.9 million in fiscal year
5
<PAGE>
1999 in our real estate operations. We plan to make significant additional
investments in Keystone/Intrawest LLC, a real estate joint venture in which we
are a member, and in developing property at all our resorts. The value of our
real property and the revenue from related development activities may be
adversely affected by a number of factors, including:
o national and local economic climate,
o local real estate conditions (such as an oversupply of space or a
reduction in demand for real estate in an area),
o attractiveness of the properties to prospective purchasers and
tenants,
o competition from other available property or space,
o our ability to obtain adequate insurance,
o unexpected construction costs,
o government regulations and changes in real estate, zoning or tax laws,
o interest rate levels and the availability of financing, and
o potential liabilities under environmental and other laws.
In addition, we run the risk that our new acquisitions may fail to perform
in accordance with our expectations, and that our estimates of the costs of
improvements for such properties may prove inaccurate. While we attempt to
mitigate our exposure to these risks by selling multi-family development parcels
to third-party developers who assume the risk of construction or by pre-selling
single-family homesites or condominium residences to individual purchasers prior
to the start of our construction projects, we cannot assure you that we will
continue to do so in the future. Although we believe that the current market for
the sale of our resort property is strong, we cannot assure you that such market
conditions will continue.
Year 2000. The Year 2000 issue is a result of certain computer programs
being written using two digits rather than four to define the applicable year.
Computer programs which are date-sensitive may recognize a date using "00" as
the year 1900 rather than the year 2000, which could result in major computer
system or program failures or miscalculations or equipment malfunctions. We
recognize that the impact of the Year 2000 issue extends beyond traditional
computer hardware and software to embedded hardware and software contained in
equipment used in operations, such as chairlifts, alarm systems and elevators,
as well as to third parties.
We committed resources to conduct risk assessments and to correct problems,
where required, within each of the following areas: information technology,
operations equipment, and external parties. Although as of March 10, 2000 we
have experienced no Year 2000 failures, we cannot guarantee that in the future
we will not have any Year 2000 issues that may adversely affect our results of
operations. While our significant third parties also did not experience any Year
2000 issues, we cannot guarantee that any Year 2000 issues that they may
experience in the future will not adversely affect results of operations.
Shares Eligible for Future Sale. Future sales of common stock by us or our
existing shareholders could adversely affect the prevailing market price of the
common stock. As of January 31, 2000, we had 27,177,698 shares of common stock
outstanding and 7,439,834 shares of class A common stock outstanding. The
7,439,834 shares of class A common stock outstanding and at least 7,554,406
shares of common stock outstanding are owned by people who may be deemed
"affiliates", as defined by Rule 405 of the Act, and are "restricted securities"
which can be resold in the public market only if registered with the Securities
and Exchange Commission or pursuant to an exemption from registration.
In general, under Rule 144 as currently in effect, an "affiliate" is
entitled to sell within any three-month period a number of shares that does not
exceed the greater of one percent of the then outstanding shares of common stock
or the average weekly reported trading volume of the common stock during the
four calendar weeks preceding
6
<PAGE>
the date on which notice of such sale is given, provided certain manner of sale
and notice requirements as to the availability of current public information are
satisfied (which requirements as to the availability of current public
information is currently satisfied). Under Rule 144(k), a person who is not
deemed an "affiliate" at any time during the three months preceding a sale by
such person would be entitled to sell such shares without regard to volume
limitations, manner of sale provisions, notification requirements or the
availability of current public information concerning the company provided that
a period of at least two years has elapsed since the later of the date the
common stock was acquired from the company or from an affiliate of the company.
In addition to the above shares, there are a number of shares of our common
stock which may be sold pursuant to the exercise of outstanding stock options.
We cannot predict what effect, if any, that future sales of such restricted
shares and the shares issuable upon exchange of stock options, or the
availability of shares for future sale, will have on the market price of the
common stock from time to time. Sales of substantial amounts of common stock in
the public market, or the perception that such sales could occur, could
adversely affect prevailing market prices for the common stock and could impair
our ability to raise additional capital through an offering of its equity
securities.
Dividends. We do not anticipate paying any cash dividends on our shares of
common stock or class A common stock in the foreseeable future.
7
<PAGE>
OUR COMPANY
We were organized as a holding company in 1997 and operate through various
subsidiaries. We are one of the leading resort operators in North America. Our
operations are grouped into two segments, Resort and Real Estate, which
represented 91% and 9%, respectively, of our net revenues for the 1999 fiscal
year. In our Resort segment, we own and operate five resort properties which
provide a comprehensive resort experience throughout the year to a diverse
clientele with an attractive demographic profile. Our Real Estate segment
develops, buys and sells real estate in and around the Company's resort
communities.
Our head and principal office is located at Vail Resorts, Inc., Post Office
Box 7, Vail, Colorado 81658, and our telephone number is (970) 476-5601.
AVAILABLE INFORMATION
We are subject to the informational requirements of the 1934 Act, and in
accordance therewith we file reports and other information with the Commission.
Reports, proxy and information statements, and other information filed by us,
can be inspected and copied at the public reference facilities maintained by the
Commission at 450 Fifth Street, N.W., Washington, D.C. 20549 and at certain of
its Regional Offices at Seven World Trade Center, 13th Floor, New York, NY 10048
and Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, IL 60661.
Copies of such material can be obtained at prescribed rates from the Public
Reference Section of the Commission, 450 Fifth Street, N.W., Washington, D.C.
20549 and by accessing the Commission's web site, http://www.sec.gov. The public
may obtain information on the operation of the Public Reference Room by calling
the Commission at (800) SEC-0330. Certain of our securities are listed on the
New York Stock Exchange and reports, proxy statements and other information
concerning us can be inspected at the offices of the New York Stock Exchange
located at 20 Broad Street, New York, NY 10005.
8
<PAGE>
SELLING STOCKHOLDERS
This prospectus relates to shares of common stock that are being registered
for reoffers and resale by selling stockholders who have acquired or may acquire
shares of common stock pursuant to the Company's 1999 Long Term Incentive and
Share Award Plan and who may be deemed "affiliates" of the Company. An
"affiliate" is defined under the Securities Act as "a person that directly or
indirectly, through one or more intermediaries, controls or is controlled by, or
is under common control with" Vail Resorts, Inc. The selling stockholders may
resell any or all of the shares of common stock at any time while this
prospectus is effective.
Executive officers, directors or others who are considered to be affiliates
of the Company who acquire common stock under the Plan may be added to the list
of selling stockholders and their number of shares to be sold may be increased
or decreased by the use of a prospectus supplement filed with the Securities and
Exchange Commission.
No selling stockholders have informed us of an intent to sell any of their
shares. The inclusion of the shares of common stock in the table below does not
constitute a commitment to sell any shares.
<TABLE>
<CAPTION>
Name Position Number of Number of Shares Number of
Shares Owned(1) Eligible to be Shares owned after
Offered by the the Offering(3)
Selling
Stockholders(2)
------------------------ ------------------------- --------------- -------------------- ------------------
<S> <C> <C> <C> <C>
Adam M. Aron Chairman of the Board 317,275 125,000 192,275
and Chief Executive
Officer
Roger T. Beck Senior Vice President, 22,334 7,500 14,834
Vail Resorts
Development Company
Andrew P. Daly President and Director 307,071 50,000 257,071
James P. Donohue Senior Vice President 99,080 25,000 74,080
and Chief Financial
Officer
John McD. Garnsey Senior Vice President -0- -0- -0-
and Chief Operating
Officer for Beaver Creek
- ----------
1 For each selling stockholder this includes (i) shares of our common stock
owned as of January 15, 2000, (ii) shares of our common stock underlying
options which are exercisable within 60 days of January 15, 2000, and (iii)
shares of our common stock underlying options granted under the Plan,
whether or not exercisable as of, or within sixty days of, January 15,
2000.
2 Represents the number of shares underlying options granted under the Plan
to such person.
3 Assumes the sale of all shares eligible to be sold.
9
<PAGE>
Name Position Number of Number of Shares Number of
Shares Owned(1) Eligible to be Shares owned after
Offered by the the Offering(3)
Selling
Stockholders(2)
------------------------ ------------------------- --------------- -------------------- ------------------
William A. Jensen Senior Vice President 52,267 20,000 32,267
and Chief Operating
Officer for Vail
James S. Mandel Senior Vice President, 155,634 12,000 143,634
Vail Resorts
Development Company
Martha D. Rehm Senior Vice President, 12,536 12,000 536
General Counsel and
Secretary
John W. Rutter Senior Vice President 44,480 20,000 24,480
and Chief Operating
Officer for Keystone
Paul A. Testwuide Senior Vice President 39,860 10,000 29,860
of Resorts Projects for
Vail
James P. Thompson President, Vail Resorts 197,504 21,000 176,504
Development Company
Porter Wharton III Senior Vice President 30,000 20,000 10,000
of Public Affairs
</TABLE>
10
<PAGE>
PLAN OF DISTRIBUTION
The selling stockholders may sell registered Shares in any of the following
ways:
-- through dealers;
-- through agents; or
-- directly to one or more purchasers.
The distribution of the Shares may be effected from time to time in one or
more transactions (which may involve crosses or block transactions)
-- on the New York Stock Exchange in transactions pursuant to and in
accordance with the rules of such exchanges,
-- in the over-the-counter market, or
-- in transactions other than on such exchange or in the over-the-counter
market, or a combination of such transactions.
Any such transaction may be effected at market prices prevailing at the
time of sale, at prices related to such prevailing market prices, at negotiated
prices or at fixed prices. The selling stockholders may effect such transactions
by selling Shares to or through broker-dealers, and such broker-dealers may
receive compensation in the form of discounts, concessions or commissions from
the selling stockholders and/or commissions from purchasers of Shares for whom
they may act as agent. The selling stockholders and any broker-dealers or agents
that participate in the distribution of Shares by them might be deemed to be
underwriters, and any discounts, commissions or concessions received by any such
broker-dealers or agents might be deemed to be underwriting discounts and
commissions, under the Securities Act. Affiliates of one or more selling
stockholders may act as principal or agent in connection with the offer or sale
of Shares by the selling stockholders.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the reoffer and
resale of the Shares by the selling stockholders.
LEGAL MATTERS
Certain legal matters relating to the Shares will be passed upon on behalf
of the Company by Cahill Gordon & Reindel, New York, New York.
EXPERTS
The consolidated balance sheets of Vail Resorts, Inc. and subsidiaries as
of July 31, 1999 and 1998, and the related consolidated statements of
operations, stockholders' equity and cash flows for the year ended July 31,
1999, the ten-month period ended July 31, 1998 and the year ended September 30,
1997 incorporated by reference in this pro-
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<PAGE>
spectus and elsewhere in the Registration Statement have been audited by Arthur
Andersen LLP, independent public accountants, as indicated in their reports with
respect thereto, and are included herein in reliance upon the authority of said
firm as experts in giving said reports.
CERTAIN FORWARD-LOOKING STATEMENTS
Information contained or incorporated by reference in this prospectus
contains "forward-looking statements" which can be identified by the use of
forward-looking terminology such as "believes", "expects", "may", "will",
"should" or "anticipates" or the negative thereof or other variations thereon or
comparable terminology, or by discussions of strategy. No assurance can be given
that the future results covered by the forward-looking statements will be
achieved. The following matters constitute cautionary statements identifying
important factors with respect to such forward-looking statements, including
certain risks and uncertainties, that could cause actual results to vary
materially from the future results covered in such forward-looking statements.
Other factors could also cause actual results to vary materially from the future
results covered in such forward-looking statements.
12
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<TABLE>
<CAPTION>
<S> <C>
======================================================= ================================================
No person is authorized to give any information or to
make any representations other than those contained in
this prospectus, and, if given or made, such information
or representations must not be relied upon as having been
authorized. This prospectus does not constitute an
offer to sell or a solicitation of an offer to buy such Vail Resorts, Inc.
securities in any circumstance in which such offer or
solicitation is unlawful. Neither the delivery of this
prospectus nor any sale made hereunder shall, under
any circumstances, create any implication that there
has been no change in our affairs since the date
hereof or that the information contained or incorporated
by reference herein is correct as of any time
subsequent to the date of this prospectus.
----------
PROSPECTUS
-------------------- ----------
TABLE OF CONTENTS
Page
Incorporation of Certain Documents
by Reference................................. 2
Risk Factors................................... 3 2,500,000 Shares
Our Company ................................... 8 Common Stock
Available Information ......................... 8 ($.01 par value)
Selling Stockholders .......................... 9
Plan of Distribution .......................... 11
Use of Proceeds ............................... 11
Legal Matters ................................. 11
Experts ....................................... 11
Certain Forward-Looking Statements ............ 12 March 13, 2000
======================================================= ================================================
</TABLE>
<PAGE>
PART II
INFORMATION REQUIRED
IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents, which are on file with the Commission, are
incorporated in this Registration Statement by reference and made a part hereof:
1. Our Annual Report on Form 10-K for the year ended July 31, 1999;
2. Our Quarterly Report on Form 10-Q, for the quarter ended October 31,
1999;
3. Our Definitive Proxy Statement on Schedule 14A, filed with the
Commission on November 12, 1999;
4. The description of our Common Stock contained in our Registration
Statement on Form S-2 (File No. 333-5341) dated June 6, 1996; and
5. Our Form 8-A filed with the Commission on July 3, 1996.
All documents subsequently filed by the Registrant with the Commission
pursuant to Section 13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of
1934, as amended (the "1934 Act") prior to the filing of a post-effective
amendment which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated by reference in this Registration Statement and to be part thereof
from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law (the "DGCL") makes
provision for the indemnification of officers and directors of corporations in
terms sufficiently broad to indemnify the officers and directors of the
registrant under certain circumstances for liabilities (including reimbursement
of expenses incurred) arising under the Securities Act.
The Company's Restated Certificate of Incorporation (the "Certificate")
provides that to the fullest extent permitted by Delaware Law or another
applicable law, a director of the Company shall not be liable to the Company or
its stockholders for monetary damages for breach of fiduciary duty as a
director. Under current Delaware Law, liability of a director may not be limited
(i) for any breach of the director's duty of loyalty to the Company or its
stockholders, (ii) for acts or omissions not in good faith or that involve
intentional misconduct or a knowing violation of law, (iii) in respect of
certain unlawful dividend payments or stock redemptions or repurchases and (iv)
for any
<PAGE>
transaction from which the director derives an improper personal benefit. The
effect of the provision of the Certificate is to eliminate the rights of the
Company and its stockholders (through stockholders' derivative suits on behalf
of the Company) to recover monetary damages against a director for breach of the
fiduciary duty of care as a director (including breaches resulting from
negligent or grossly negligent behavior) except in the situations described in
clauses (i) through (iv) above. This provision does not limit or eliminate the
rights of the Company or any stockholder to seek non-monetary relief such as an
injunction or rescission in the event of a breach of a director's duty of care.
In addition, the Company's Restated Bylaws (the "Bylaws") provide that the
Company shall indemnify its directors, officers and employees to the fullest
extent permitted by applicable law.
The Bylaws provide that the Company may indemnify any person who is or was
involved in any manner or is threatened to be made so involved in any
threatened, pending or completed investigation, claim, action, suit or
proceeding, whether civil, criminal, administrative or investigative (including
any action, suit or proceeding by or in the right of the registrant to procure a
judgment in its town), by reason of the fact that he is or was or had agreed to
become a director, officer or employee of the registrant or is or was or had
agreed to become at the request of the board or an officer of the registrant a
director, officer or employee of another corporation, partnership, joint
venture, trust or other entity against all expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement actually and reasonably incurred
by such person in connection with such proceeding.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
The Exhibits to this Registration Statement are listed in the Exhibit Index
of this Registration Statement, which Index is incorporated herein by reference.
ITEM 9. UNDERTAKINGS.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the
estimated maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b) if, in
the aggregate, the changes in volume and price represent no more than
a 20% change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective registration
statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
II-2
<PAGE>
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the Registrant pursuant to
section 13 or section 15(d) of the 1934 Act that are incorporated by reference
in the registration statement.
(2) That, for the purpose of determining any liability under the Act,
each such post-effective amendment shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such securities at that time shall be deemed to be the initial bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Act, each filing of the Registrant's annual
report pursuant to section 13(a) or section 15(d) of the 1934 Act that is
incorporated by reference in the registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Act may be
permitted to directors, officers and controlling persons of the Registrant
pursuant to the foregoing provisions, or otherwise, the Registrant has been
advised that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred
or paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunder duly
authorized, in the city of Vail, Colorado, on the 9th of March, 2000.
VAIL RESORTS, INC.
(Registrant)
By: /s/ Martha D. Rehm
-----------------------------------
Name: Martha D. Rehm
Title: Senior Vice President
and General Counsel
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<PAGE>
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities indicated on March 9, 2000.
SIGNATURES TITLE
- ---------- -----
/s/ADAM M. ARON*
- ------------------------------------ Chairman of the Board and
Adam M. Aron Chief Executive Officer
(Principal Chief Executive Officer)
Director
- ------------------------------------
Frank Biondi
Director
/s/LEON D. BLACK*
- ------------------------------------
Leon D. Black
Director
- ------------------------------------
Craig M. Cogut
Director
/s/ANDREW P. DALY*
- ------------------------------------
Andrew P. Daly
Director
- ------------------------------------
Stephen C. Hilbert
Director
/s/ROBERT A. KATZ*
- ------------------------------------
Robert A. Katz
Director
/s/THOMAS H. LEE*
- ------------------------------------
Thomas H. Lee
Director
/s/WILLIAM L. MACK*
- ------------------------------------
William L. Mack
Director
/s/JOSEPH R. MICHELETTO*
- ------------------------------------
Joseph R. Micheletto
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<PAGE>
Director
- ------------------------------------
Antony P. Ressler
Director
/s/MARC J. ROWAN*
- ------------------------------------
Marc J. Rowan
Director
- ------------------------------------
John J. Ryan III
Director
/s/JOHN F. SORTE*
- ------------------------------------
John F. Sorte
Director
/s/BRUCE H. SPECTOR*
- ------------------------------------
Bruce H. Spector
Director
- ------------------------------------
William P. Stiritz
Director
- ------------------------------------
James S. Tisch
/s/JAMES P. DONOHUE*
- ------------------------------------ Senior Vice President and
James P. Donohue Chief Financial Officer
(Principal Financial and
Accounting Officer)
/s/MARTHA D. REHM Attorney-in-Fact
- ------------------------------------
Martha D. Rehm
*By Attorney-in-Fact
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<PAGE>
EXHIBIT INDEX
EXHIBIT NO. EXHIBIT
- ---------- -------
4 Vail Resorts, Inc. 1999 Long Term Incentive and Share Award Plan.
5 Opinion of Cahill Gordon & Reindel.
23.1 Consent of Independent Public Accountants.
23.2 Consent of Cahill Gordon & Reindel (included in Exhibit 5).
24 Powers of Attorney
Exhibit 4
VAIL RESORTS, INC.
1999 LONG TERM INCENTIVE AND SHARE AWARD PLAN
1. Purposes.
--------
The purposes of the 1999 Long Term Incentive and Share Award Plan are to advance
the interests of Vail Resorts, Inc. and its shareholders by providing a means to
attract, retain, and motivate employees, consultants and directors of the
Company upon whose judgment, initiative and efforts the continued success,
growth and development of the Company is dependent.
2. Definitions.
-----------
For purposes of the Plan, the following terms shall be defined as set forth
below:
(a) "Affiliate" means any entity other than the Company and its
Subsidiaries that is designated by the Board or the Committee as a participating
employer under the Plan, provided that the Company directly or indirectly owns
at least 20% of the combined voting power of all classes of stock of such entity
or at least 20% of the ownership interests in such entity.
(b) "Award" means any Option, SAR, Restricted Share Unit, Performance
Share, Performance Unit, Dividend Equivalent, or Other Share-Based Award granted
to an Eligible Person under the Plan.
(c) "Award Agreement" means any written agreement, contract, or other
instrument or document evidencing an Award.
(d) "Beneficiary" means the person, persons, trust or trusts which have
been designated by such Eligible Person in his or her most recent written
beneficiary designation filed with the Company to receive the benefits specified
under this Plan upon the death of the Eligible Person, or, if there is no
designated Beneficiary or surviving designated Beneficiary, then the person,
persons, trust or trusts entitled by will or the laws of descent and
distribution to receive such benefits.
(e) "Board" means the Board of Directors of the Company.
(f) "Code" means the Internal Revenue Code of 1986, as amended from time to
time. References to any provision of the Code shall be deemed to include
successor provisions thereto and regulations thereunder.
(g) "Committee" means the Compensation Committee of the Board or a
subcommittee thereof, or such other Board committee (which may include the
entire Board) as may be designated by the Board to administer the Plan, or if
the Board so designates, the entire Board.
(h) "Company" means Vail Resorts, Inc., a corporation organized under the
laws of Delaware, or any successor corporation.
(i) "Director" means a member of the Board who is not an employee of the
Company, a Subsidiary or an Affiliate.
(j) "Dividend Equivalent" means a right, granted under Section 5(g), to
receive cash, Shares, or other property equal in value to dividends paid with
respect to a specified number of Shares. Dividend Equiva-
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<PAGE>
lents may be awarded on a free-standing basis or in connection with another
Award, and may be paid currently or on a deferred basis.
(k) "Eligible Person" means (i) an employee or consultant of the Company, a
Subsidiary or an Affiliate, including any director who is an employee, or (ii) a
Director.
(l) "Exchange Act" means the Securities Exchange Act of 1934, as amended
from time to time. References to any provision of the Exchange Act shall be
deemed to include successor provisions thereto and regulations thereunder.
(m) "Fair Market Value" means, with respect to Shares or other property,
the fair market value of such Shares or other property determined by such
methods or procedures as shall be established from time to time by the
Committee. If the Shares are listed on any established stock exchange or a
national market system, unless otherwise determined by the Committee in good
faith, the Fair Market Value of Shares shall mean the mean between the high and
low selling prices per Share on the immediately preceding date (or, if the
Shares were not traded on that day, the next preceding day that the Shares were
traded) on the principal exchange on which the Shares are traded, as such prices
are officially quoted on such exchange.
(n) "ISO" means any option intended to be and designated as an incentive
stock option within the meaning of Section 422 of the Code.
(o) "NQSO" means any Option that is not an ISO.
(p) "Option" means a right, granted under Section 5(b), to purchase Shares.
(q) "Other Share-Based Award" means a right, granted under Section 5(h),
that relates to or is valued by reference to Shares.
(r) "Participant" means an Eligible Person who has been granted an Award
under the Plan.
(s) "Performance Share" means a performance share granted under Section
5(f).
(t) "Performance Unit" means a performance unit granted under Section 5(f).
(u) "Plan" means this 1999 Long Term Incentive and Share Award Plan.
(v) "Restricted Shares" means an Award of Shares under Section 5(d) that
may be subject to certain restrictions and to a risk of forfeiture.
(w) "Restricted Share Unit" means a right, granted under Section 5(e), to
receive Shares or cash at the end of a specified deferral period.
(x) "Rule 16b-3" means Rule 16b-3, as from time to time in effect and
applicable to the Plan and Participants, promulgated by the Securities and
Exchange Commission under Section 16 of the Exchange Act.
(y) "SAR" or "Share Appreciation Right" means the right, granted under
Section 5(c), to be paid an amount measured by the difference between the
exercise price of the right and the Fair Market Value of Shares on the date of
exercise of the right, with payment to be made in cash, Shares, or property as
specified in the Award or determined by the Committee.
(z) "Shares" means common stock, $.01 par value per share, of the Company.
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(aa) "Subsidiary" means any corporation (other than the Company) in an
unbroken chain of corporations beginning with the Company if each of the
corporations (other than the last corporation in the unbroken chain) owns shares
possessing 50% or more of the total combined voting power of all classes of
stock in one of the other corporations in the chain.
3. Administration.
--------------
(a) Authority of the Committee. The Plan shall be administered by the
Committee, and the Committee shall have full and final authority to take the
following actions, in each case subject to and consistent with the provisions of
the Plan:
(i) to select Eligible Persons to whom Awards may be granted;
(ii) to designate Affiliates;
(iii) to determine the type or types of Awards to be granted to each
Eligible Person;
(iv) to determine the type and number of Awards to be granted, the number
of Shares to which an Award may relate, the terms and conditions of any Award
granted under the Plan (including, but not limited to, any exercise price, grant
price, or purchase price, and any bases for adjusting such exercise, grant or
purchase price, any restriction or condition, any schedule for lapse of
restrictions or conditions relating to transferability or forfeiture,
exercisability, or settlement of an Award, and waiver or accelerations thereof,
and waivers of performance conditions relating to an Award, based in each case
on such considerations as the Committee shall determine), and all other matters
to be determined in connection with an Award;
(v) to determine whether, to what extent, and under what circumstances an
Award may be settled, or the exercise price of an Award may be paid, in cash,
Shares, other Awards, or other property, or an Award may be canceled, forfeited,
exchanged, or surrendered;
(vi) to determine whether, to what extent, and under what circumstances
cash, Shares, other Awards, or other property payable with respect to an Award
will be deferred either automatically, at the election of the Committee, or at
the election of the Eligible Person;
(vii) to prescribe the form of each Award Agreement, which need not be
identical for each Eligible Person;
(viii) to adopt, amend, suspend, waive, and rescind such rules and
regulations and appoint such agents as the Committee may deem necessary or
advisable to administer the Plan;
(ix) to correct any defect or supply any omission or reconcile any
inconsistency in the Plan and to construe and interpret the Plan and any Award,
rules and regulations, Award Agreement, or other instrument hereunder;
(x) to accelerate the exercisability or vesting of all or any portion of
any Award or to extend the period during which an Award is exercisable; and
(xi) to make all other decisions and determinations as may be required
under the terms of the Plan or as the Committee may deem necessary or advisable
for the administration of the Plan.
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<PAGE>
(b) Manner of Exercise of Committee Authority. The Committee shall have
sole discretion in exercising its authority under the Plan. Any action of the
Committee with respect to the Plan shall be final, conclusive, and binding on
all persons, including the Company, Subsidiaries, Affiliates, Eligible Persons,
any person claiming any rights under the Plan from or through any Eligible
Person, and shareholders. The express grant of any specific power to the
Committee, and the taking of any action by the Committee, shall not be construed
as limiting any power or authority of the Committee. The Committee may delegate
to other members of the Board or officers or managers of the Company or any
Subsidiary or Affiliate the authority, subject to such terms as the Committee
shall determine, to perform administrative functions and, with respect to Awards
granted to persons not subject to Section 16 of the Exchange Act, to perform
such other functions as the Committee may determine, to the extent permitted
under Rule 16b-3 (if applicable) and applicable law.
(c) Limitation of Liability. Each member of the Committee shall be entitled
to, in good faith, rely or act upon any report or other information furnished to
him or her by any officer or other employee of the Company or any Subsidiary or
Affiliate, the Company's independent certified public accountants, or other
professional retained by the Company to assist in the administration of the
Plan. No member of the Committee, nor any officer or employee of the Company
acting on behalf of the Committee, shall be personally liable for any action,
determination, or interpretation taken or made in good faith with respect to the
Plan, and all members of the Committee and any officer or employee of the
Company acting on their behalf shall, to the extent permitted by law, be fully
indemnified and protected by the Company with respect to any such action,
determination, or interpretation.
(d) Limitation on Committee's Discretion. Anything in this Plan to the
contrary notwithstanding, in the case of any Award which is intended to qualify
as "performance-based compensation" within the meaning of Section 162(m)(4)(C)
of the Code, if the Award Agreement so provides, the Committee shall have no
discretion to increase the amount of compensation payable under the Award to the
extent such an increase would cause the Award to lose its qualification as such
performance-based compensation.
4. Shares Subject to the Plan.
--------------------------
(a) Subject to adjustment as provided in Section 4(c) hereof, the total
number of Shares reserved for issuance in connection with Awards under the Plan
shall be 2,500,000. No Award may be granted if the number of Shares to which
such Award relates, when added to the number of Shares previously issued under
the Plan, exceeds the number of Shares reserved under the preceding sentence. If
any Awards are forfeited, canceled, terminated, exchanged or surrendered or such
Award is settled in cash or otherwise terminates without a distribution of
Shares to the Participant, any Shares counted against the number of Shares
reserved and available under the Plan with respect to such Award shall, to the
extent of any such forfeiture, settlement, termination, cancellation, exchange
or surrender, again be available for Awards under the Plan. Upon the exercise of
any Award granted in tandem with any other Awards, such related Awards shall be
canceled to the extent of the number of Shares as to which the Award is
exercised.
(b) Subject to adjustment as provided in Section 4(c) hereof, the maximum
number of Shares (i) with respect to which Options or SARs may be granted during
a calendar year to any Eligible Person under this Plan shall be 1,000,000
Shares, and (ii) with respect to Performance Shares, Performance Units,
Restricted Shares or Restricted Share Units intended to qualify as
performance-based compensation within the meaning of Section 162(m)(4)(C) of the
Code shall be the equivalent of 200,000 Shares during a calendar year to any
Eligible Person under this Plan.
(c) 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, or 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 the
rights of Eligible Persons under the Plan, then the Committee shall make such
equitable changes or adjustments as it deems appropriate and, in such manner as
it may deem
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equitable, adjust any or all of (i) the number and kind of shares which may
thereafter be issued under the Plan, (ii) the number and kind of shares, other
securities or other consideration issued or issuable in respect of outstanding
Awards, and (iii) the exercise price, grant price, or purchase price relating to
any Award; provided, however, in each case that, with respect to ISOs, such
adjustment shall be made in accordance with Section 424(a) of the Code, unless
the Committee determines otherwise. In addition, the Committee is authorized to
make adjustments in the terms and conditions of, and the criteria and
performance objectives included in, Awards in recognition of unusual or
non-recurring events (including, without limitation, events described in the
preceding sentence) affecting the Company or any Subsidiary or Affiliate or the
financial statements of the Company or any Subsidiary or Affiliate, or in
response to changes in applicable laws, regulations, or accounting principles;
provided, however, that, if an Award Agreement specifically so provides, the
Committee shall not have discretion to increase the amount of compensation
payable under the Award to the extent such an increase would cause the Award to
lose its qualification as performance-based compensation for purposes of Section
162(m)(4)(C) of the Code and the regulations thereunder.
(d) Any Shares distributed pursuant to an Award may consist, in whole or in
part, of authorized and unissued Shares or treasury Shares including Shares
acquired by purchase in the open market or in private transactions.
5. Specific Terms of Awards.
------------------------
(a) General. Awards may be granted on the terms and conditions set forth in
this Section 5. In addition, the Committee may impose on any Award or the
exercise thereof, at the date of grant or thereafter (subject to Section 7(d)),
such additional terms and conditions, not inconsistent with the provisions of
the Plan, as the Committee shall determine, including terms regarding forfeiture
of Awards or continued exercisability of Awards in the event of termination of
service by the Eligible Person.
(b) Options. The Committee is authorized to grant Options, which may be
NQSOs or ISOs, to Eligible Persons on the following terms and conditions:
(i) Exercise Price. The exercise price per Share purchasable under an
Option shall be determined by the Committee, and the Committee may, without
limitation, set an exercise price that is based upon achievement of performance
criteria if deemed appropriate by the Committee.
(ii) Option Term. The term of each Option shall be determined by the
Committee.
(iii) Time and Method of Exercise. The Committee shall determine at the
date of grant or thereafter the time or times at which an Option may be
exercised in whole or in part (including, without limitation, upon achievement
of performance criteria if deemed appropriate by the Committee), the methods by
which such exercise price may be paid or deemed to be paid (including, without
limitation, broker-assisted exercise arrangements), the form of such payment
(including, without limitation, cash, Shares, notes or other property), and the
methods by which Shares will be delivered or deemed to be delivered to Eligible
Persons.
(iv) ISOs. The terms of any ISO granted under the Plan shall comply in all
respects with the provisions of Section 422 of the Code, including but not
limited to the requirement that the ISO shall be granted within ten years from
the earlier of the date of adoption or shareholder approval of the Plan. ISOs
may only be granted to employees of the Company or a Subsidiary.
(c) SARs. The Committee is authorized to grant SARs (Share Appreciation
Rights) to Eligible Persons on the following terms and conditions:
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(i) Right to Payment. An SAR shall confer on the Eligible Person to whom it
is granted a right to receive with respect to each Share subject thereto, upon
exercise thereof, the excess of (1) the Fair Market Value of one Share on the
date of exercise (or, if the Committee shall so determine in the case of any
such right, the Fair Market Value of one Share at any time during a specified
period before or after the date of exercise) over (2) the exercise price of the
SAR as determined by the Committee as of the date of grant of the SAR (which, in
the case of an SAR granted in tandem with an Option, shall be equal to the
exercise price of the underlying Option).
(ii) Other Terms. The Committee shall determine, at the time of grant or
thereafter, the time or times at which an SAR may be exercised in whole or in
part, the method of exercise, method of settlement, form of consideration
payable in settlement, method by which Shares will be delivered or deemed to be
delivered to Eligible Persons, whether or not an SAR shall be in tandem with any
other Award, and any other terms and conditions of any SAR. Unless the Committee
determines otherwise, an SAR (1) granted in tandem with an NQSO may be granted
at the time of grant of the related NQSO or at any time thereafter and (2)
granted in tandem with an ISO may only be granted at the time of grant of the
related ISO.
(d) Restricted Shares. The Committee is authorized to grant Restricted
Shares to Eligible Persons on the following terms and conditions:
(i) Issuance and Restrictions. Restricted Shares shall be subject to such
restrictions on transferability and other restrictions, if any, as the Committee
may impose at the date of grant or thereafter, which restrictions may lapse
separately or in combination at such times, under such circumstances (including,
without limitation, upon achievement of performance criteria if deemed
appropriate by the Committee), in such installments, or otherwise, as the
Committee may determine. Except to the extent restricted under the Award
Agreement relating to the Restricted Shares, an Eligible Person granted
Restricted Shares shall have all of the rights of a shareholder including,
without limitation, the right to vote Restricted Shares and the right to receive
dividends thereon. If the lapse of restrictions is conditioned on the
achievement of performance criteria, the Committee shall select the criterion or
criteria from the list of criteria set forth in Section 5(f)(i). The Committee
must certify in writing prior to the lapse of restrictions conditioned on
achievement of performance criteria that such performance criteria were in fact
satisfied.
(ii) Forfeiture. Except as otherwise determined by the Committee, at the
date of grant or thereafter, upon termination of service during the applicable
restriction period, Restricted Shares and any accrued but unpaid dividends or
Dividend Equivalents that are at that time subject to restrictions shall be
forfeited; provided, however, that the Committee may provide, by rule or
regulation or in any Award Agreement, or may determine in any individual case,
that restrictions or forfeiture conditions relating to Restricted Shares will be
waived in whole or in part in the event of terminations resulting from specified
causes, and the Committee may in other cases waive in whole or in part the
forfeiture of Restricted Shares.
(iii) Certificates for Shares. Restricted Shares granted under the Plan may
be evidenced in such manner as the Committee shall determine. If certificates
representing Restricted Shares are registered in the name of the Eligible
Person, such certificates shall bear an appropriate legend referring to the
terms, conditions, and restrictions applicable to such Restricted Shares, and
the Company shall retain physical possession of the certificate.
(iv) Dividends. Dividends paid on Restricted Shares shall be either paid at
the dividend payment date, or deferred for payment to such date as determined by
the Committee, in cash or in unrestricted Shares having a Fair Market Value
equal to the amount of such dividends. Shares distributed in connection with a
Share split or dividend in Shares, and other property distributed as a dividend,
shall be subject to restrictions and a risk of forfeiture to the same extent as
the Restricted Shares with respect to which such Shares or other property have
been distributed.
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(e) Restricted Share Units. The Committee is authorized to grant Restricted
Share Units to Eligible Persons, subject to the following terms and conditions:
(i) Award and Restrictions. Delivery of Shares or cash, as the case may be,
will occur upon expiration of the deferral period specified for Restricted Share
Units by the Committee (or, if permitted by the Committee, as elected by the
Eligible Person). In addition, Restricted Share Units shall be subject to such
restrictions as the Committee may impose, if any (including, without limitation,
the achievement of performance criteria if deemed appropriate by the Committee),
at the date of grant or thereafter, which restrictions may lapse at the
expiration of the deferral period or at earlier or later specified times,
separately or in combination, in installments or otherwise, as the Committee may
determine. If the lapse of restrictions is conditioned on the achievement of
performance criteria, the Committee shall select the criterion or criteria from
the list of criteria set forth in Section 5(f)(i). The Committee must certify in
writing prior to the lapse of restrictions conditioned on the achievement of
performance criteria that such performance criteria were in fact satisfied.
(ii) Forfeiture. Except as otherwise determined by the Committee at date of
grant or thereafter, upon termination of service (as determined under criteria
established by the Committee) during the applicable deferral period or portion
thereof to which forfeiture conditions apply (as provided in the Award Agreement
evidencing the Restricted Share Units), or upon failure to satisfy any other
conditions precedent to the delivery of Shares or cash to which such Restricted
Share Units relate, all Restricted Share Units that are at that time subject to
deferral or restriction shall be forfeited; provided, however, that the
Committee may provide, by rule or regulation or in any Award Agreement, or may
determine in any individual case, that restrictions or forfeiture conditions
relating to Restricted Share Units will be waived in whole or in part in the
event of termination resulting from specified causes, and the Committee may in
other cases waive in whole or in part the forfeiture of Restricted Share Units.
(f) Performance Shares and Performance Units. The Committee is authorized
to grant Performance Shares or Performance Units or both to Eligible Persons on
the following terms and conditions:
(i) Performance Period. The Committee shall determine a performance period
(the "Performance Period") of one or more years and shall determine the
performance objectives for grants of Performance Shares and Performance Units.
Performance objectives may vary from Eligible Person to Eligible Person and
shall be based upon one or more of the following performance criteria as the
Committee may deem appropriate: appreciation in value of the Shares, total
shareholder return, earnings per share, operating income, net income, pro forma
net income, return on equity, return on designated assets, return on capital,
economic value added, earnings, revenues, expenses, operating profit margin,
operating cash flow, net profit margin. The performance objectives may be
determined by reference to the performance of the Company, or of a Subsidiary or
Affiliate, or of a division or unit of any of the foregoing. Performance Periods
may overlap and Eligible Persons may participate simultaneously with respect to
Performance Shares and Performance Units for which different Performance Periods
are prescribed.
(ii) Award Value. At the beginning of a Performance Period, the Committee
shall determine for each Eligible Person or group of Eligible Persons with
respect to that Performance Period the range of number of Shares, if any, in the
case of Performance Shares, and the range of dollar values, if any, in the case
of Performance Units, which may be fixed or may vary in accordance with such
performance or other criteria specified by the Committee, which shall be paid to
an Eligible Person as an Award if the relevant measure of Company performance
for the Performance Period is met. The Committee must certify in writing that
the applicable performance criteria were satisfied prior to payment under any
Performance Shares or Performance Units.
(iii) Significant Events. If during the course of a Performance Period
there shall occur significant events as determined by the Committee which the
Committee expects to have a substantial effect
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<PAGE>
on a performance objective during such period, the Committee may revise such
objective; provided, however, that, if an Award Agreement so provides, the
Committee shall not have any discretion to increase the amount of compensation
payable under the Award to the extent such an increase would cause the Award to
lose its qualification as performance-based compensation for purposes of Section
162(m)(4)(C) of the Code and the regulations thereunder.
(iv) Forfeiture. Except as otherwise determined by the Committee, at the
date of grant or thereafter, upon termination of service during the applicable
Performance Period, Performance Shares and Performance Units for which the
Performance Period was prescribed shall be forfeited; provided, however, that
the Committee may provide, by rule or regulation or in any Award Agreement, or
may determine in an individual case, that restrictions or forfeiture conditions
relating to Performance Shares and Performance Units will be waived in whole or
in part in the event of terminations resulting from specified causes, and the
Committee may in other cases waive in whole or in part the forfeiture of
Performance Shares and Performance Units.
(v) Payment. Each Performance Share or Performance Unit may be paid in
whole Shares, or cash, or a combination of Shares and cash either as a lump sum
payment or in installments, all as the Committee shall determine, at the time of
grant of the Performance Share or Performance Unit or otherwise, commencing as
soon as practicable after the end of the relevant Performance Period. The
Committee must certify in writing prior to the payment of any Performance Share
or Performance Unit that the performance objectives and any other material terms
were in fact satisfied.
(g) Dividend Equivalents. The Committee is authorized to grant Dividend
Equivalents to Eligible Persons. The Committee may provide, at the date of grant
or thereafter, that Dividend Equivalents shall be paid or distributed when
accrued or shall be deemed to have been reinvested in additional Shares, or
other investment vehicles as the Committee may specify, provided that Dividend
Equivalents (other than freestanding Dividend Equivalents) shall be subject to
all conditions and restrictions of the underlying Awards to which they relate.
(h) Other Share-Based Awards. The Committee is authorized, subject to
limitations under applicable law, to grant to Eligible Persons such other Awards
that may be denominated or payable in, valued in whole or in part by reference
to, or otherwise based on, or related to, Shares, as deemed by the Committee to
be consistent with the purposes of the Plan, including, without limitation,
unrestricted shares awarded purely as a "bonus" and not subject to any
restrictions or conditions, other rights convertible or exchangeable into
Shares, purchase rights for Shares, Awards with value and payment contingent
upon performance of the Company or any other factors designated by the
Committee, and Awards valued by reference to the performance of specified
Subsidiaries or Affiliates. The Committee shall determine the terms and
conditions of such Awards at date of grant or thereafter. Shares delivered
pursuant to an Award in the nature of a purchase right granted under this
Section 5(h) shall be purchased for such consideration, paid for at such times,
by such methods, and in such forms, including, without limitation, cash, Shares,
notes or other property, as the Committee shall determine. Cash awards, as an
element of or supplement to any other Award under the Plan, shall also be
authorized pursuant to this Section 5(h).
6. Certain Provisions Applicable to Awards.
---------------------------------------
(a) Stand-Alone, Additional, Tandem and Substitute Awards. Awards granted
under the Plan may, in the discretion of the Committee, be granted to Eligible
Persons either alone or in addition to, in tandem with, or in exchange or
substitution for, any other Award granted under the Plan or any award granted
under any other plan or agreement of the Company, any Subsidiary or Affiliate,
or any business entity to be acquired by the Company or a Subsidiary or
Affiliate, or any other right of an Eligible Person to receive payment from the
Company or any Subsidiary or Affiliate. Awards may be granted in addition to or
in tandem with such other Awards or awards, and may be granted either as of the
same time as or a different time from the grant of such other Awards or awards.
The per Share exercise price of any Option, grant price of any SAR, or purchase
price of any
E-8
<PAGE>
other Award conferring a right to purchase Shares which is granted, in
connection with the substitution of awards granted under any other plan or
agreement of the Company or any Subsidiary or Affiliate or any business entity
to be acquired by the Company or any Subsidiary or Affiliate, shall be
determined by the Committee, in its discretion.
(b) Terms of Awards. The term of each Award granted to an Eligible Person
shall be for such period as may be determined by the Committee; provided,
however, that in no event shall the term of any ISO or an SAR granted in tandem
therewith exceed a period of ten years from the date of its grant (or such
shorter period as may be applicable under Section 422 of the Code).
(c) Form of Payment Under Awards. Subject to the terms of the Plan and any
applicable Award Agreement, payments to be made by the Company or a Subsidiary
or Affiliate upon the grant, maturation, or exercise of an Award may be made in
such forms as the Committee shall determine at the date of grant or thereafter,
including, without limitation, cash, Shares, or other property, and may be made
in a single payment or transfer, in installments, or on a deferred basis. The
Committee may make rules relating to installment or deferred payments with
respect to Awards, including the rate of interest to be credited with respect to
such payments.
(d) Nontransferability. Unless otherwise set forth by the Committee in an
Award Agreement, Awards (except for vested shares) shall not be transferable by
an Eligible Person except by will or the laws of descent and distribution
(except pursuant to a Beneficiary designation) and shall be exercisable during
the lifetime of an Eligible Person only by such Eligible Person or his guardian
or legal representative. An Eligible Person's rights under the Plan may not be
pledged, mortgaged, hypothecated, or otherwise encumbered, and shall not be
subject to claims of the Eligible Person's creditors.
7. General Provisions.
------------------
(a) Compliance with Legal and Trading Requirements. The Plan, the granting
and exercising of Awards thereunder, and the other obligations of the Company
under the Plan and any Award Agreement, shall be subject to all applicable
federal and state laws, rules and regulations, and to such approvals by any
regulatory or governmental agency as may be required. The Company, in its
discretion, may postpone the issuance or delivery of Shares under any Award
until completion of such stock exchange or market system listing or registration
or qualification of such Shares or other required action under any state or
federal law, rule or regulation as the Company may consider appropriate, and may
require any Participant to make such representations and furnish such
information as it may consider appropriate in connection with the issuance or
delivery of Shares in compliance with applicable laws, rules and regulations. No
provisions of the Plan shall be interpreted or construed to obligate the Company
to register any Shares under federal or state law.
(b) No Right to Continued Employment or Service. Neither the Plan nor any
action taken thereunder shall be construed as giving any employee, consultant or
director the right to be retained in the employ or service of the Company or any
of its Subsidiaries or Affiliates, nor shall it interfere in any way with the
right of the Company or any of its Subsidiaries or Affiliates to terminate any
employee's, consultant's or director's employment or service at any time.
(c) Taxes. The Company or any Subsidiary or Affiliate is authorized to
withhold from any Award granted, any payment relating to an Award under the
Plan, including from a distribution of Shares, or any payroll or other payment
to an Eligible Person, amounts of withholding and other taxes due in connection
with any transaction involving an Award, and to take such other action as the
Committee may deem advisable to enable the Company and Eligible Persons to
satisfy obligations for the payment of withholding taxes and other tax
obligations relating to any Award. This authority shall include authority to
withhold or receive Shares or other property and to make cash payments in
respect thereof in satisfaction of an Eligible Person's tax obligations.
E-9
<PAGE>
(d) Changes to the Plan and Awards. The Board may amend, alter, suspend,
discontinue, or terminate the Plan or the Committee's authority to grant Awards
under the Plan without the consent of shareholders of the Company or
Participants, except that any such amendment, alteration, suspension,
discontinuation, or termination shall be subject to the approval of the
Company's shareholders to the extent such shareholder approval is required under
Section 422 of the Code; provided, however, that, without the consent of an
affected Participant, no amendment, alteration, suspension, discontinuation, or
termination of the Plan may materially and adversely affect the rights of such
Participant under any Award theretofore granted to him or her. The Committee may
waive any conditions or rights under, amend any terms of, or amend, alter,
suspend, discontinue or terminate, any Award theretofore granted, prospectively
or retrospectively; provided, however, that, without the consent of a
Participant, no amendment, alteration, suspension, discontinuation or
termination of any Award may materially and adversely affect the rights of such
Participant under any Award theretofore granted to him or her.
(e) No Rights to Awards; No Shareholder Rights. No Eligible Person or
employee shall have any claim to be granted any Award under the Plan, and there
is no obligation for uniformity of treatment of Eligible Persons and employees.
No Award shall confer on any Eligible Person any of the rights of a shareholder
of the Company unless and until Shares are duly issued or transferred to the
Eligible Person in accordance with the terms of the Award.
(f) Unfunded Status of Awards. The Plan is intended to constitute an
"unfunded" plan for incentive compensation. With respect to any payments not yet
made to a Participant pursuant to an Award, nothing contained in the Plan or any
Award shall give any such Participant any rights that are greater than those of
a general creditor of the Company; provided, however, that the Committee may
authorize the creation of trusts or make other arrangements to meet the
Company's obligations under the Plan to deliver cash, Shares, other Awards, or
other property pursuant to any Award, which trusts or other arrangements shall
be consistent with the "unfunded" status of the Plan unless the Committee
otherwise determines with the consent of each affected Participant.
(g) Nonexclusivity of the Plan. Neither the adoption of the Plan by the
Board nor its submission to the shareholders of the Company for approval shall
be construed as creating any limitations on the power of the Board to adopt such
other incentive arrangements as it may deem desirable, including, without
limitation, the granting of options and other awards otherwise than under the
Plan, and such arrangements may be either applicable generally or only in
specific cases.
(h) Not Compensation for Benefit Plans. No Award payable under this Plan
shall be deemed salary or compensation for the purpose of computing benefits
under any benefit plan or other arrangement of the Company for the benefit of
its employees, consultants or directors unless the Company shall determine
otherwise.
(i) No Fractional Shares. No fractional Shares shall be issued or delivered
pursuant to the Plan or any Award. The Committee shall determine whether cash,
other Awards, or other property shall be issued or paid in lieu of such
fractional Shares or whether such fractional Shares or any rights thereto shall
be forfeited or otherwise eliminated.
(j) Governing Law. The validity, construction, and effect of the Plan, any
rules and regulations relating to the Plan, and any Award Agreement shall be
determined in accordance with the laws of Colorado without giving effect to
principles of conflict of laws.
(k) Effective Date; Plan Termination. The Plan shall become effective as of
September 14, 1999 (the "Effective Date"). The Plan shall terminate as to future
awards on the date which is ten (10) years after the Effective Date.
E-10
<PAGE>
(l) Titles and Headings. The titles and headings of the sections in the
Plan are for convenience of reference only. In the event of any conflict, the
text of the Plan, rather than such titles or headings, shall control.
E-11
Exhibit 5
[CGR Letterhead]
March 13, 2000
Vail Resorts, Inc.
Post Office Box 7
Vail, Colorado 81658
Re: Vail Resorts, Inc.
Form S-8 Registration Statement
Ladies and Gentlemen:
We have examined a copy of the registration statement on Form S-8 (the
"Registration Statement") filed by Vail Resorts, Inc. (the "Company") with the
Securities and Exchange Commission (the "Commission") relating to the
registration pursuant to the provisions of the Securities Act of 1933, as
amended (the "Act"), of 2,500,000 shares of common stock, $.01 par value (the
"Common Stock"), of the Company, which are issuable pursuant to restricted stock
awards ("Restricted Stock") or options (an "Option") granted and to be granted
pursuant to the 1999 Long Term Incentive and Share Award Plan (the "Incentive
Plan") of the Company.
We advise you that, in our opinion, upon proper authorization of the Board
of Directors of the Company, (i) upon the issuance of Restricted Stock pursuant
the terms of the Incentive Plan, the Common Stock so issued will be legally
issued, fully paid and non-assessable and (ii) upon the issuance of Common Stock
pursuant to a duly granted Option in accordance with its terms and the terms of
the Incentive Plan, and upon payment to the Company of the Option exercise price
for such Common Stock in accordance therewith, the Common Stock so issued will
be legally issued, fully paid and non-assessable.
We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and to the reference to our firm under the caption "Legal
Matters" in the Registration Statement and related prospectus. Our consent to
such reference does not constitute a consent under Section 7 of the Act, as in
consenting to such reference we have not certified any part of the Registration
Statement and do not otherwise come within the categories of persons whose
consent is required under said Section 7 or under the rules and regulations of
the Commission thereunder.
Very truly yours,
/s/ CAHILL GORDON & REINDEL
Exhibit 23.1
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation
by reference in this Form S-8 Registration Statement of our reports dated
October 14, 1999, included in Vail Resorts, Inc.'s Annual Report on Form 10-K
for the year ended July 31, 1999, and to all references to our Firm included in
this Form S-8 Registration Statement.
/s/ ARTHUR ANDERSEN LLP
Denver, Colorado
March 9, 2000
Exhibit 24
POWER OF ATTORNEY
For Registration Statement of Vail Resorts, Inc.
KNOW BY THESE PRESENTS, That each of the undersigned directors and officers
of , a Delaware corporation (the "Company"), which proposes to file with the
Securities and Exchange Commission, Washington, DC ("SEC") under the provisions
of the Securities Act of 1933, as amended (the "Act"), a new S-8 Registration
Statement and one or more post-effective amendments ("Registration Documents")
to register under said Act an additional 2,500,000 shares of the Common Stock of
the Company to be used in connection with the Company's 1999 Long Term Incentive
and Share Award Plan, hereby constitutes and appoints Martha D. Rehm, his true
and lawful attorney-in-fact and agent, with full power to act as his true and
lawful attorney-in-fact and agent, for him and in his name, place and stead, in
any and all capacities, to sign the Registration Documents and to file the same
with all exhibits thereto and any and all other documents in connection
therewith, with the SEC, hereby granting unto said attorney-in-fact and agent
full power and authority to do and perform any and all acts and things requisite
and necessary to be done in and about the premises as fully and to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent may lawfully do or cause to be done by
virtue hereof.
<PAGE>
IN WITNESS WHEREOF, the undersigned have hereunto set their hand this 9th
day of March, 2000.
SIGNATURES TITLE
---------- -----
/s/ADAM M. ARON Chairman of the Board and
- -------------------------------- Chief Executive Officer
Adam M. Aron (Principal Chief Executive Officer)
Director
- --------------------------------
Frank Biondi
/s/LEON D. BLACK Director
- --------------------------------
Leon D. Black
Director
- --------------------------------
Craig M. Cogut
/s/ANDREW P. DALY Director
- --------------------------------
Andrew P. Daly
Director
- --------------------------------
Stephen C. Hilbert
/s/ROBERT A. KATZ Director
- --------------------------------
Robert A. Katz
/s/THOMAS H. LEE Director
- --------------------------------
Thomas H. Lee
/s/WILLIAM L. MACK Director
- --------------------------------
William L. Mack
/s/JOSEPH R. MICHELETTO Director
- --------------------------------
Joseph R. Micheletto
Director
- --------------------------------
Antony P. Ressler
<PAGE>
SIGNATURES TITLE
---------- -----
/s/MARC J. ROWAN Director
- --------------------------------
Marc J. Rowan
Director
- --------------------------------
John J. Ryan III
/s/JOHN F. SORTE Director
- --------------------------------
John F. Sorte
/s/BRUCE H. SPECTOR Director
- --------------------------------
Bruce H. Spector
Director
- --------------------------------
William P. Stiritz
Director
- --------------------------------
James S. Tisch
/s/JAMES P. DONOHUE Senior Vice President and
- -------------------------------- Chief Financial Officer
James P. Donohue (Principal Financial and
Accounting Officer)
