EXHIBIT 4(A)
VAIL RESORTS, INC.
1993 STOCK OPTION PLAN
1. Purpose.
The purpose of this 1993 Stock Option Plan (the "Plan") of Gillett
Holdings, Inc., a Delaware corporation (the "Company"), is to secure for the
Company and its stockholders the benefits arising from stock ownership by
selected key employees, directors, consultants and advisers of the Company or
its subsidiaries, as the Committee (hereinafter defined) may from time to time
determine. The Plan will provide a means whereby (i) such employees may purchase
shares of the Common Stock of the Company pursuant to options which will qualify
as "incentive stock options" under Section 422 of the Internal Revenue Code of
1986, as amended (the "Code"), and (ii) such employees or other persons may
purchase shares of the Common Stock of the Company pursuant to "non-incentive"
or "non-qualified" stock options. The Plan has been duly adopted by the Board of
Directors and the stockholders of the Company.
2. Administration.
The Plan shall be administered by a Stock Option Committee (the
"Committee") consisting of two or more directors to whom administration of the
Plan has been duly delegated. The Committee shall be appointed by the Board of
Directors of the Company, but no director shall be appointed to the Committee
who has been granted or awarded equity securities of the Company pursuant to the
Plan or (except as described in paragraph (c)(2)(i) of Rule 16b-3 promulgated
under the Securities Exchange Act of 1934, as amended) any other plan of the
Company or its affiliates during the period of one year prior to such
appointment. Any action of the Committee with respect to administration of the
Plan shall be taken by a majority vote or written consent of its members.
Subject to the provisions of the Plan, the Committee shall have authority
(i) to construe and interpret the Plan, (ii) to define the terms used herein,
(iii) to prescribe, amend and rescind rules and regulations relating to the
Plan, (iv) to determine the individuals to whom and the time or times at which
options shall be granted, whether such options will be incentive stock options
or non-qualified stock options, the number of shares to be subject to each
option, the option
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price, the number of installments, if any, in which each option may be
exercised, and the duration of each option, and the other terms and conditions
of each option grant not inconsistent with the Plan (which need not be
identical), (v) to approve and determine the duration of leaves of absence which
may be granted to participants without constituting a termination of their
employment for the purposes of the Plan, and (vi) to make all other
determinations necessary or advisable for the administration of the Plan. All
determinations and interpretations made by the Committee shall be binding and
conclusive on all participants in the Plan and their legal representatives and
beneficiaries.
3. Shares Subject to the Plan.
Subject to adjustment as provided in paragraph 15 hereof, the shares to be
offered under the Plan shall consist of the Company's authorized but unissued
Common Stock, and the aggregate amount of such stock which may be issued upon
exercise of all options under the Plan shall not exceed Two Million Forty-Five
Thousand Five Hundred Ten (2,045,510) of such shares. If any option granted
under the Plan shall expire or terminate for any reason without having been
exercised in full, the unpurchased shares subject thereto shall again be
available for options to be granted under the Plan.
4. Eligibility and Participation.
All key employees, directors (other than Committee members), consultants
and advisers of the Company or of any subsidiary corporation (as defined in
Section 425(f) of the Code) shall be eligible for selection to participate in
the Plan, except that only regular employees of the Company or a subsidiary may
receive incentive stock options under the Plan. An individual who has been
granted an option may, if such individual is otherwise eligible, be granted an
additional option or options if the Committee shall so determine, subject to the
other provisions of the Plan. No incentive stock option may be granted to any
person who, at the time the incentive stock option is granted, owns shares of
the Company's outstanding Common Stock possessing more than ten percent (10%) of
the total combined voting power of all classes of stock of the Company (and of
its affiliates, if applicable), unless the exercise price of such options is at
least 110 percent (110%) of the fair market value of the stock subject to the
option and such option by its terms is not exercisable after the expiration of
five years from the date such option is granted.
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The aggregate fair market value (determined at the time the options are
granted) of the shares covered by incentive stock options granted to any one
employee under this Plan or any other incentive stock option plan of the Company
which may become exercisable for the first time in any one calendar year shall
not exceed $100,000; provided, however, that if the Code or the regulations
thereunder shall permit a greater amount of incentive stock options to vest in
any calendar year, then such higher limit shall be applicable, subject to the
provisions of the specific option agreement.
All options granted under the Plan shall be granted within ten years from
March 25, 1993 (the date of adoption of the Plan by the Board of Directors).
5. Duration of Options.
Each option and all rights associated therewith shall expire on such date
as the Committee may determine, and shall be subject to earlier termination as
provided herein; provided, however, that in the case of incentive stock options,
each incentive stock option and all rights associated therewith shall expire in
any event within ten (10) years of the date on which such incentive stock option
is granted.
6. Purchase Price.
The purchase price of the stock covered by each option shall be determined
by the Committee but, in the case of incentive stock options, shall be not less
than one hundred percent (100%) of the fair market value of such stock on the
date the incentive stock option is granted. The purchase price of the shares
upon exercise of an option shall be paid in full at the time of exercise (i) in
cash or by check payable to the order of the Company, (ii) by delivery of shares
of Common Stock of the Company which have been owned by the option holder for
over six months, and which are in the possession of the option holder, (iii) by
delivery to a broker of a copy of the notice of exercise, specifying the number
of options to be exercised and instructing the broker to sell the shares
issuable upon exercise of the option and to deliver to the Company from the sale
proceeds of such shares an amount equal to the exercise price of the options, or
(iv) if authorized by the Committee or if specified in the option being
exercised, by a promissory note made by option holder in favor of the Company,
upon the terms and conditions determined by the Committee and secured by the
shares issuable upon exercise, complying with applicable law (including, without
limitation, state corporate
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and federal margin requirements), or any combination thereof. Shares of Common
Stock used to satisfy the exercise price of an option shall be valued at their
fair market value determined (in accordance with paragraph 8 hereof) as of the
close of the business day immediately preceding the date of exercise. Deliveries
of cash, shares, and notices to the Company shall be directed to the Secretary
of the Company.
7. Exercise of Options.
Each option granted under this Plan shall be exercisable in such
installments during the period prior to its expiration date as the Committee
shall determine, but in no event shall any option be exercisable for at least
six months after the date of grant. Unless otherwise determined by the
Committee, if the option holder shall not in any given installment period
purchase all of the shares which the option holder is entitled to purchase in
such installment period, then the option holder's right to purchase any shares
not purchased in such installment period shall continue until the expiration
date or sooner termination of the option holder's option. No option may be
exercised for a fraction of a share and no partial exercise of any option may be
for less than one hundred (100) shares.
8. Fair Market Value of Common Stock.
The fair market value of a share of Common Stock of the Company shall be
determined for purposes of the Plan by reference to the closing price on the
principal stock exchange on which such shares are then listed, or if such shares
are not then listed on a stock exchange, by reference to the closing price (if a
National Market issue) or the mean between the bid and asked price (if other
over-the-counter issue) of a share as supplied by the National Association of
Securities Dealers through NASDAQ (or its successor in function), in each case
as reported by The Wall Street Journal, for the business day immediately
preceding the date on which the option is granted or exercised (or, if for any
reason no such price is available, in such other manner as the Committee may
deem appropriate to reflect the then fair market value thereof). If at any
relevant time the Company's shares are not publicly traded and listed on a stock
exchange or quoted by NASDAQ, then the fair market value shall be determined by
the Board of Directors or the Committee by reference to such factors as it deems
appropriate, including most recent sale price of the Company's common stock, the
earnings history, book value and prospects of the Company,
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which determination shall be conclusive and binding on all option holders.
9. Withholding Tax.
Upon (i) the disposition by an employee or other person of shares of Common
Stock acquired pursuant to the exercise of an incentive stock option granted
pursuant to the Plan within two years of the granting of the incentive stock
option or within one year after exercise of the incentive stock option or (ii)
the grant to or exercise by an employee or other person of "non-incentive" or
"non-qualified" options, the Company shall have the right to require such
employee or other person to pay the Company the amount of any taxes which the
Company, in its sole determination, maybe required to withhold with respect to
such shares. Grants under the Plan may provide that participants may elect to
have the Company withhold shares to satisfy their minimum statutory withholding
requirement with the value of withheld shares based upon the Fair Market Value
on the date the tax withholding is required to be made.
10. Non-Transferability.
All options granted under the Plan shall, by their terms, be
non-transferable by the option holder, either voluntarily or by operation of
law, otherwise than by will or the laws of descent and distribution, and shall
be exercisable during the option holder's lifetime only by the option holder,
regardless of any community property interest therein of the spouse of the
option holder, or such spouse's successors in interest. If the spouse of the
option holder shall have acquired a community property interest in any such
option, the option holder, or the option holder's permitted successors in
interest, may exercise the option on behalf of the spouse of the option holder
or such spouse's successors in interest.
11. Holding of Stock After Exercise of Option.
Any option may provide that the option holder, by accepting such option,
represents and agrees, for the option holder and the option holder's permitted
transferees (by will or the laws of descent and distribution), that none of the
shares purchased upon exercise of the option will be acquired with a view to any
sale, transfer or distribution of said shares in violation of the Securities Act
of 1933, as amended, and the rules and regulations promulgated thereunder, or
any applicable state "blue sky" laws, and the person entitled to exercise the
same shall furnish evidence satisfactory to the
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Company (including a written and signed representation) to that effect in form
and substance satisfactory to the Company, including an indemnification of the
Company in the event of any violation of the Securities Act of 1933 or state
blue sky laws by such person.
12. Termination of Employment.
If a holder of an incentive stock option ceases to be employed by the
Company or one of its subsidiaries for any reason other than the option holder's
death or permanent disability (within the meaning of Section 105(d)(4) of the
Code), the option holder's incentive stock option shall be exercisable for a
period of three (3) months after the date the option holder ceases to be an
employee of the Company or such subsidiary (unless by its terms it sooner
expires) to the extent exercisable on the date of such cessation of employment
and shall thereafter expire and be void and of no further force or effect. A
leave of absence approved in writing by the Committee shall not be deemed a
termination of employment for the purposes of this paragraph 12, but no
incentive stock option may be exercised during any such leave of absence, except
during the first three (3) months thereof. Termination of employment or other
relationship with the Company by the holder of a non-qualified stock option will
have the effect specified in the individual option agreement, as determined by
the Committee.
13. Death or Permanent Disability of Option Holder.
If the holder of an incentive stock option dies or becomes permanently
disabled while the option holder is employed by the Company or one of its
subsidiaries, the option holder's option shall expire six (6) months after the
date of such death or permanent disability unless by its terms it sooner
expires. During such period after death, such option may, to the extent that it
remained unexercised (but exercisable by the option holder according to such
option's terms) on the date of such death, be exercised by the person or persons
to whom the option holder's rights under the option shall pass by the option
holder's will or by the laws of descent and distribution. The death or
disability of a holder of a non-qualified stock option will have the effect
specified in the individual option agreement as determined by the Committee.
14. Privileges of Stock Ownership.
No person entitled to exercise any option granted under the Plan shall have
any of the rights or privileges of a
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stockholder of the Company in respect of any shares of stock issuable upon
exercise of such option until certificates representing such shares shall have
been issued and delivered. No shares shall be issued and delivered upon the
exercise of any option unless and until there shall have been full compliance
with all applicable requirements of the Securities Act of 1933 (whether by
registration or satisfaction of exemption conditions), all applicable listing
requirements of any national securities exchange on which shares of the same
class are then
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listed and any other requirements of law or of any regulatory bodies having
jurisdiction over such issuance and delivery.
15. Adjustments.
If the outstanding shares of the Common Stock of the Company are increased,
decreased, changed into or exchanged for a different number or kind of shares or
securities of the Company through reorganization, recapitalization,
reclassification, stock dividend, stock split, reverse stock split or other
similar transaction, an appropriate and proportionate adjustment shall be made
in the maximum number and kind of shares as to which options may be granted
under this Plan. A corresponding adjustment changing the number or kind of
shares allocated to unexercised options or portions thereof, which shall have
been granted prior to any such change, shall likewise be made. Any such
adjustment in the outstanding options shall be made without change in the
aggregate purchase price applicable to the unexercised portion of the option but
with a corresponding adjustment in the price for each share or other unit of any
security covered by the option.
Upon the dissolution or liquidation of the Company, or upon a
reorganization, merger or consolidation of the Company with one or more
corporations as a result of which the Company is not the surviving corporation,
or upon a sale of substantially all the property or more than eighty percent
(80%) of the then outstanding stock of the Company to another corporation,
subject to the following sentence, the Plan shall terminate and all options
theretofore granted hereunder shall terminate and be of no further force and
effect. Notwithstanding the foregoing, the Committee shall provide in writing in
connection with any such transaction for any or all of the following
alternatives (separately or in combination): (i) for the options theretofore
granted to become immediately exercisable notwithstanding the provisions of
paragraph 7 hereof; (ii) for the assumption by the successor corporation of the
options theretofore granted or the substitution by such corporation for such
options of new options covering the stock of the
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successor corporation, or a parent or subsidiary thereof, with appropriate
adjustments as to the number and kind of shares and prices; (iii) for the
continuance of the Plan by such successor corporation, in which event the Plan
and the options theretofore granted shall continue in the manner and under the
terms so provided; or (iv) for the payment in cash or stock in lieu of and in
complete satisfaction of such options.
Adjustments under this paragraph 15 shall be made by the Committee, whose
determination as to what adjustments shall be made, and the extent thereof,
shall be final, binding and conclusive. No fractional shares of stock shall be
issued under the Plan upon any such adjustment.
At the discretion of the Committee, any option may contain provisions to
the effect that upon the happening of certain events, including a change in
control (as defined by the Committee in the option) of the Company, any
outstanding options not theretofore exercisable shall immediately become
exercisable in their entirety, notwithstanding any of the other provisions of
the option.
16. Amendment and Termination of Plan.
The Committee may at any time suspend or terminate the Plan. The Committee
may also at any time amend or revise the terms of the Plan, provided that no
such amendment or revision shall, unless appropriate stockholder approval of
such amendment or revision is obtained, increase the maximum number of shares in
the aggregate which may be sold pursuant to options granted under the Plan,
except as permitted under the provisions of paragraph 15, or change the minimum
purchase price of incentive stock options set forth in paragraph 6, or increase
the maximum term of incentive stock options provided for in paragraph 5, or
permit the granting of options to anyone other than as provided in paragraph 4.
Notwithstanding the foregoing, no amendment, suspension or termination of
the Plan shall, without specific action of the Committee and the consent of the
option holder, in any way modify, amend, alter or impair any rights or
obligations under any option theretofore granted under the Plan.