forms8.htm
As
filed with the Securities and Exchange Commission on September 7,
2007
Registration
No. 333-____________
UNITED
STATES
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)
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Delaware
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51-0291762
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|
(State
or other jurisdiction of incorporation or organization)
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(I.R.S.
Employer Identification No.)
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| |
|
|
390
Interlocken Crescent, Suite 1000
Broomfield,
Colorado
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80021
|
|
(Address
of Principal Executive Offices)
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(Zip
Code)
|
Vail
Resorts, Inc. 1999 Long Term Incentive and Share Award
Plan
Vail
Resorts, Inc. Amended and Restated 2002 Long Term Incentive and Share Award
Plan
(Full
title of the Plan)
|
________________________
Fiona
Arnold, Esq.
Senior
Vice President and General Counsel
Vail
Resorts, Inc.
390
Interlocken Crescent, Suite 1000
Broomfield,
Colorado 80021
(303)
404-1800
|
(Name,
address and telephone number, including area code, of agent for
service)
Copy
to:
Richard
J. Mattera, Esq.
Hogan
& Hartson LLP
One
Tabor Center, Suite 1500
1200
Seventeenth Street
Denver,
Colorado 80202
(303)
899-7300
CALCULATION
OF REGISTRATION FEE
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Title
of securities
to
be registered
|
Amount
to
be
Registered
(1)
|
Proposed
maximum
offering
price
per
share (2)
|
Proposed
maximum
aggregate
offering
price
(2)
|
Amount
of
registration
fee
(2(3))
|
|
Common
Stock, par value $.01 per share
|
4,191,429
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$56.35
|
$198,820,465
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$4,695.57
|
| |
|
|
|
|
|
(1)
|
Pursuant
to Rule 416 under the Securities Act of 1933, as amended (the "Securities
Act"), this registration statement covers, in addition to the number
of
shares of common stock shown above, an indeterminate number of shares
of
common stock that, by reason of certain events specified in the plan
(e.g., anti-dilution adjustments), may become subject to such
plan.
|
|
(2)
|
Estimated
solely for the purpose of calculating the registration fee pursuant
to
Rules 457(c) and 457(h) under the Securities Act, based upon (A)
the
average of the high and low sales prices reported for the Registrant's
common stock on the New York Stock Exchange on August 30, 2007 with
respect to 2,900,400 shares of common stock at $56.35 per share,
and (B)
the weighted average exercise price of $27.43 per share with respect
to
outstanding share based awards for 1,291,029 shares of common
stock.
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|
(3)
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Pursuant
to Rule 457(p) under the Securities Act, the amount of registration
fee
has been offset by $1,409.13, which is the aggregate total dollar
amount
of the filing fee associated with 1,114,765 shares of Common Stock
which
were offered under a registration statement on Form S-8 filed with
the
Commission on December 8, 2003 (File No. 333-111020) and remained
unsold
at the termination of the offering and deregistered pursuant to
Post-Effective Amendment No. 1 to the registration statement on Form
S-8
filed on September 7, 2007 (File No.
333-111020).
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PART
I
INFORMATION
REQUIRED IN SECTION 10(a) PROSPECTUS
Item
1. Plan
Information.*
Item
2. Registrant
Information and Employee Plan Annual Information.*
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|
*
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The
documents containing the information specified in Part I will be sent
or given to participants in the Vail Resorts, Inc. 1999 Long Term
Incentive and Share Award Plan and the Vail Resorts, Inc. Amended
and
Restated 2002 Long Term Incentive and Share Award Plan (collectively,
the
“Plans”) as specified by Rule 428(b)(1) under the Securities
Act. Pursuant to the Note to Part I of Form S-8, such
documents will not be filed with the Securities and Exchange Commission
(the “Commission”) either as part of this registration statement or as
prospectuses or prospectus supplements pursuant to Rule 424 under the
Securities Act. These documents and the documents incorporated by
reference pursuant to Item 3 of Part II of this registration
statement, taken together, constitute the prospectus that meets the
requirements by Section 10(a) of the Securities
Act.
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PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation
of Documents by Reference.
The
following documents and all other
documents subsequently filed with the Commission by Vail Resorts, Inc. (the
“Registrant”) pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), prior to the filing
of a
post-effective amendment that indicates that all the shares of common stock
offered hereby have been sold or that deregisters all such shares of common
stock then remaining unsold, shall be deemed incorporated by reference herein
and to be a part of this registration statement from the date of filing of
such
documents:
(a) the
Registrant’s annual report on Form 10-K/A for its fiscal year ended July 31,
2006, filed with the Commission on August 24, 2007;
(b) the
Registrant’s quarterly reports on Form 10-Q/A for its fiscal quarters ended
October 31, 2006, filed with the Commission on August 24, 2007, and January
31,
2007, filed with the Commission on August 24, 2007, and April 30, 2007, filed
with the Commission on August 24, 2007;
(c) the
Registrant’s current reports on Form 8-K, filed with the Commission on October
10, 2006, December 7, 2006, December 22, 2006, February 2, 2007, March 19,
2007,
April 4, 2007, August 8, 2007 and August 24, 2007 (with respect to Item 4.02
only); and
(d) the
description of the Registrant’s common stock as set forth in the Registrant’s
registration statement on Form 8-A filed with the Commission on July
3, 1996 (File No. 001-09614), including all amendments and reports filed for
the
purpose of updating such description.
Any
statement contained herein or in a document incorporated or deemed to be
incorporated by reference shall be deemed to be modified or superseded for
purposes of this registration statement to the extent that a statement contained
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such prior
statement. Any such statement so modified or superseded shall not be
deemed to constitute a part of this registration statement, except as so
modified or superseded.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
Not
applicable.
Item
6. Indemnification of Officers and Directors.
Section
145 of the Delaware General
Corporation Law (the “DGCL”) provides as follows:
(a)
A corporation shall have power to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action, suit or proceeding, whether
civil, criminal, administrative or investigative (other than an action by or
in
the right of the corporation) by reason of the fact that the person is or was
a
director, officer, employee or agent of the corporation, or is or was serving
at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise,
against expenses (including attorneys' fees), judgments, fines and amounts
paid
in settlement actually and reasonably incurred by the person in connection
with
such action, suit or proceeding if the person acted in good faith and in a
manner the person reasonably believed to be in or not opposed to the best
interests of the corporation, and, with respect to any criminal action or
proceeding, had no reasonable cause to believe the person's conduct was
unlawful. The termination of any action, suit or proceeding by
judgment, order, settlement, conviction, or upon a plea of nolo contendere
or
its equivalent, shall not, of itself, create a presumption that the person
did
not act in good faith and in a manner which the person reasonably believed
to be
in or not opposed to the best interests of the corporation, and, with respect
to
any criminal action or proceeding, had reasonable cause to believe that the
person's conduct was unlawful.
(b)
A corporation shall have power to
indemnify any person who was or is a party or is threatened to be made a party
to any threatened, pending or completed action or suit by or in the right of
the
corporation to procure a judgment in its favor by reason of the fact that the
person is or was a director, officer, employee or agent of the corporation,
or
is or was serving at the request of the corporation as a director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or
other enterprise against expenses (including attorneys' fees) actually and
reasonably incurred by the person in connection with the defense or settlement
of such action or suit if the person acted in good faith and in a manner the
person reasonably believed to be in or not opposed to the best interests of
the
corporation and except that no indemnification shall be made in respect of
any
claim, issue or matter as to which such person shall have been adjudged to
be
liable to the corporation unless and only to the extent that the Court of
Chancery or the court in which such action or suit was brought shall determine
upon application that, despite the adjudication of liability but in view of
all
the circumstances of the case, such person is fairly and reasonably entitled
to
indemnity for such expenses which the Court of Chancery or such other court
shall deem proper.
(c)
To the extent that a present or
former director or officer of a corporation has been successful on the merits
or
otherwise in defense of any action, suit or proceeding referred to in
subsections (a) and (b) of this section, or in defense of any claim, issue
or
matter therein, such person shall be indemnified against expenses (including
attorneys' fees) actually and reasonably incurred by such person in connection
therewith.
(d)
Any indemnification under
subsections (a) and (b) of this section (unless ordered by a court) shall be
made by the corporation only as authorized in the specific case upon a
determination that indemnification of the present or former director, officer,
employee or agent is proper in the circumstances because the person has met
the
applicable standard of conduct set forth in subsections (a) and (b) of this
section. Such determination shall be made, with respect to a person
who is a director or officer at the time of such determination, (1) by a
majority vote of the directors who are not parties to such action, suit or
proceeding, even though less than a quorum, or (2) by a committee of such
directors designated by majority vote of such directors, even though less than
a
quorum, or (3) if there are no such directors, or if such directors so direct,
by independent legal counsel in a written opinion, or (4) by the
stockholders.
(e)
Expenses (including attorneys'
fees) incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding may be paid by the
corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director
or
officer to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the corporation as authorized in
this section. Such expenses (including attorneys' fees) incurred by
former directors and officers or other employees and agents may be so paid
upon
such terms and conditions, if any, as the corporation deems
appropriate.
(f)
The indemnification and advancement
of expenses provided by, or granted pursuant to, the other subsections of this
section shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any bylaw,
agreement, vote of stockholders or disinterested directors or otherwise, both
as
to action in such person's official capacity and as to action in another
capacity while holding such office.
(g)
A corporation shall have power to
purchase and maintain insurance on behalf of any person who is or was a
director, officer, employee or agent of the corporation, or is or was serving
at
the request of the corporation as a director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other enterprise
against any liability asserted against such person and incurred by such person
in any such capacity, or arising out of such person's status as such, whether
or
not the corporation would have the power to indemnify such person against such
liability under this section.
(h)
For purposes of this section,
references to "the corporation" shall include, in addition to the resulting
corporation, any constituent corporation (including any constituent of a
constituent) absorbed in a consolidation or merger which, if its separate
existence had continued, would have had power and authority to indemnify its
directors, officers, and employees or agents, so that any person who is or
was a
director, officer, employee or agent of such constituent corporation, or is
or
was serving at the request of such constituent corporation as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise, shall stand in the same position under this section
with respect to the resulting or surviving corporation as such person would
have
with respect to such constituent corporation if its separate existence had
continued.
(i)
For purposes of this section,
references to "other enterprises" shall include employee benefit
plans; references to "fines" shall include any excise taxes assessed
on a person with respect to any employee benefit plan; and references
to "serving at the request of the corporation" shall include any service as
a
director, officer, employee or agent of the corporation which imposes duties
on,
or involves services by, such director, officer, employee or agent with respect
to an employee benefit plan, its participants or beneficiaries; and a
person who acted in good faith and in a manner such person reasonably believed
to be in the interest of the participants and beneficiaries of an employee
benefit plan shall be deemed to have acted in a manner "not opposed to the
best
interests of the corporation" as referred to in this section.
(j)
The indemnification and advancement
of expenses provided by, or granted pursuant to, this section shall, unless
otherwise provided when authorized or ratified, continue as to a person who
has
ceased to be a director, officer, employee or agent and shall inure to the
benefit of the heirs, executors and administrators of such a
person.
(k)
The Court of Chancery is hereby
vested with exclusive jurisdiction to hear and determine all actions for
advancement of expenses or indemnification brought under this section or under
any bylaw, agreement, vote of stockholders or disinterested directors, or
otherwise. The Court of Chancery may summarily determine a
corporation's obligation to advance expenses (including attorneys'
fees).
Section
37 of the Registrant’s Bylaws
provides as follows:
(a)
Without limiting the generality or
effect of Article Eight of the Restated Certificate of Incorporation, the
Corporation shall, to the fullest extent permitted by applicable law as then
in
effect, indemnify any person (an "Indemnitee") who is or was involved in any
manner (including, without limitation, as a party or a witness) 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, without limitation, any action, suit, or proceeding
by
or in the right of the Corporation to procure a judgment in its favor) (a
"Proceeding") by reason of the fact that on or after the Effective Date such
person is or was or had agreed to become a Director, officer or employee of
the
Corporation, or on or after the Effective Date is or was or had agreed to become
at the request of the Board or of an officer of the Corporation, a director,
officer, or employee of another corporation, partnership, joint venture, trust,
or other entity, whether for profit or not for profit (including the heirs,
executors, administrators, or estate of such person), or anything done or not
by
such person in any such capacity, against all expenses (including, without
limitation, attorneys' fees, judgments, fines, and amounts paid in settlement)
actually and reasonably incurred by such person in connection with such
Proceeding. Such indemnification shall be a contract right and shall
include the right to receive payment in advance of any expenses incurred by
an
Indemnitee in connection with such Proceeding, consistent with the provisions
of
applicable law as then in effect.
(b)
If any provision or provisions of
this Bylaw 37 are held to be invalid, illegal, or unenforceable for any reason
whatsoever: (i) the validity, legality, and enforceability of the remaining
provisions of this Bylaw 37 (including, without limitation, all portions of
any
paragraph of this Bylaw 37 containing any such provision held to be invalid,
illegal, unenforceable, that are not themselves invalid, illegal, or
unenforceable) will not in any way be affected or impaired thereby and (ii)
to
the fullest extent possible, the provisions of this Bylaw 37 (including without
limitation, all portions of any paragraph of this Bylaw 37 containing any such
provision held to be invalid, illegal, or unenforceable, that are not themselves
invalid, illegal, or unenforceable) will be construed so as to give effect
to
the intent manifested by the provision held invalid, illegal, or
unenforceable.
Article
8 of the Registrant’s Amended
and Restated Certificate of Incorporation provides as follows:
SECTION
8.01 Indemnity. Each
person serving as a director, officer or employee of the Corporation (including
the heirs, executors, administrators or estate of such person), shall be
indemnified and held harmless by the Corporation to the fullest extent permitted
by the Delaware General Corporation Law or any other applicable law as currently
or hereafter in effect.
SECTION
8.02 Modification
of Indemnification. Without limiting the generality or the effect of
the foregoing Section 8.01, the Corporation may adopt by-laws or enter into
one
or more agreements with any person which provide for indemnification greater
or
different than that provided in this Article 8 or the Delaware General
Corporation Law or any other applicable law. Notwithstanding anything
contained in Article 6 of this Amended and Restated Certificate of Incorporation
or in the by-laws of the Corporation to the contrary, the amendment or repeal
of, or adoption of any provision inconsistent with, this Article 8 shall be
taken only upon the affirmative vote of the holders of at least 80% of the
Common Stock issued and outstanding entitled to vote thereon. Any
amendment or repeal of, or adoption of any provision inconsistent with, this
Article 8 shall not adversely affect any right or protection existing hereunder
prior to such amendment, repeal, or adoption.
SECTION
8.03 Non-Exclusivity. The right of
indemnification provided in this Article 8 shall not be exclusive of any other
rights to which any person seeking indemnification may otherwise be entitled
including, without limitation, any contract approved by a majority of the
Directors, whether or not the Directors approving such contract are or are
to be
or may become parties to such contract or similar contracts.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
Exhibit
No. Description
of Exhibit
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4.1
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Vail
Resorts Inc. 1999 Long Term Incentive and Share Award
Plan
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4.2
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Vail
Resorts Inc. Amended and Restated 2002 Long Term Incentive and Share
Award
Plan
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5.1
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Opinion
of Hogan & Hartson L.L.P. with respect to the legality of the common
stock registered hereby.
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23.1
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Consent
of PricewaterhouseCoopers LLP, Independent Registered Public Accounting
Firm, with respect to the
Registrant.
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23.2
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Consent
of Hogan & Hartson L.L.P. (contained in its opinion filed herewith as
Exhibit 5.1).
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24.1
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Power
of Attorney (included on the signature page to this registration
statement).
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Item
9. Undertakings.
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(a) The
undersigned Registrant hereby
undertakes:
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(1) To
file, during any period in which offers or sale are being made, a
post-effective amendment to this
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Registration
Statement:
(i) To
include any
prospectus required by Section 10(a)(3) of the Securities Act;
(ii)
To
reflect in the prospectus any facts or events arising after the effective date
of this 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 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the
effective registration statement; and
(iii) To
include any
material information with respect to the plan of distribution not
previously
disclosed
in this Registration Statement or any material change to such information in
this Registration Statement;
Provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not
apply if the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in this Registration
Statement.
(2) That,
for the purpose of determining any liability under the Securities 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 Securities Act, each filing of the Registrant’s annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that
is
incorporated by reference in this 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 Securities 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 Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than for 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 competent
jurisdiction the question of whether such indemnification by it is against
public policy as expressed by the Securities Act and will be governed by the
final adjudication of such issue.
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, thereunto duly
authorized, in the City of Broomfield, State of Colorado, on this 7th day of
September,
2007.
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VAIL
RESORTS, INC.
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By:
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/s/
Fiona Arnold
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Name:
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Fiona
Arnold
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Title:
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Senior
Vice President and General Counsel
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KNOW
ALL
MEN BY THESE PRESENTS, that each person whose signature appears below
constitutes and appoints Jeffrey W. Jones and Fiona Arnold, in his or her own
capacity, his true and lawful attorneys-in-fact and agents, with full power
of
substitution and resubstitution, to sign, execute and file with the Commission
(or any other governmental or regulatory authority), for us and in our names
in
the capacities indicated below, this registration statement on Form S-8
(including all amendments thereto) with all exhibits and any and all documents
required to be filed with respect thereto, granting unto said attorneys-in-fact
and agents and each of them, full power and authority to do and to perform
each
and every act and thing necessary or desirable to be done in and about the
premises in order to effectuate the same as fully to all intents and purposes
as
the undersigned might or could do if personally present, hereby ratifying and
confirming all that said attorneys-in-fact and agents, or any of them, may
lawfully do or cause to be done by virtue hereof.
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 and on the dates
indicated.
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Signature
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Title
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Date
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/s/
Robert A. Katz
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Chief
Executive Officer and Director
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September
7, 2007
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Robert
A. Katz
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(Principal
Executive Officer)
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/s/
Jeffrey W. Jones
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Senior
Executive Vice President and
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September
7, 2007
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Jeffrey
W. Jones
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Chief
Financial Officer
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(Principal
Financial and Accounting Officer)
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/s/
Joe R. Micheletto
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September
7, 2007
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Joe
R. Micheletto
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Chairman
of the Board of Directors
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/s/
John J. Hannan
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September
7, 2007
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John
J. Hannan
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Director
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/s/
Roland A. Hernandez
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September
7, 2007
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Roland
A. Hernandez
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Director
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/s/
Thomas D. Hyde
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September
7, 2007
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Thomas
D. Hyde
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Director
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/s/
Richard D. Kincaid
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September
7, 2007
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Richard
D. Kincaid
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Director
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/s/
John F. Sorte
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September
7, 2007
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John
F. Sorte
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Director
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/s/
William P. Stiritz
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September
7, 2007
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William
P. Stiritz
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Director
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EXHIBIT
INDEX
Exhibit
No. Description
of Exhibit
|
|
4.1
|
Vail
Resorts Inc. 1999 Long Term Incentive and Share Award
Plan
|
|
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4.2
|
Vail
Resorts Inc. Amended and Restated 2002 Long Term Incentive and Share
Award
Plan
|
|
|
5.1
|
Opinion
of Hogan & Hartson L.L.P. with respect to the legality of the common
stock registered hereby.
|
|
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23.1
|
Consent
of PricewaterhouseCoopers LLP, Independent Registered Public Accounting
Firm, with respect to the
Registrant.
|
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23.2
|
Consent
of Hogan & Hartson L.L.P. (contained in its opinion filed herewith as
Exhibit 5.1).
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24.1
|
Power
of Attorney (included on the signature page to this registration
statement).
|