As filed with the Securities and Exchange Commission on December 2, 2004
Registration No. 333-119687
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SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
_______________________
AMENDMENT NO. 2
TO
FORM S-3
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 Number)
incorporation or organization)
_______________________
137 Benchmark Road
Avon, Colorado 81620
(970) 845-2500
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
_______________________
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)
_______________________
Copy to:
James J. Clark, Esq.
Luis R. Penalver, Esq.
Cahill Gordon & Reindel LLP
80 Pine Street
New York, New York 10005
(212) 701-3000
_______________________
Approximate date of commencement of proposed issuance of the securities to
the public: From time to time after the effective date of this Registration
Statement as determined in light of market and other conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, as amended (the "Securities Act"), other than securities offered only in
connection with dividend or interest reinvestment plans, check the following
box. |X|
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. / /
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. / /
_______________________
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON
SUCH DATE AS THE COMMISSION ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
The information in this prospectus is not complete and may be changed. We may
not sell these securities until the Securities and Exchange Commission declares
our registration statement effective. This prospectus is not an offer to sell
these securities and is not soliciting an offer to buy these securities in any
state where the offer or sale is not permitted.
SUBJECT TO COMPLETION, DATED DECEMBER 2, 2004
PRELIMINARY PROSPECTUS
1,646,670 Shares
VAIL RESORTS, INC.
Common Stock
This prospectus relates to the offer and sale, from time to time, of up to
1,646,670 shares of our common stock by the selling stockholders listed in this
prospectus. All of the shares of common stock covered by this prospectus were
acquired by the selling stockholders from Apollo Ski Partners, L.P. when Apollo
Ski Partners, L.P. distributed the shares of common stock to its partners.
The offer and sale of the common shares covered by this prospectus will be made,
if at all, by the selling stockholders listed in this prospectus or by those
holders' pledges, donees, transferees, or other successors in interest, in
accordance with one or more of the methods described in the plan of
distribution. We will not receive any of the proceeds from the sale of any
common shares by the selling stockholders.
Our common stock is traded on the New York Stock Exchange under the symbol
"MTN." On December 1, 2004, the last sale price of our common stock on the New
York Stock Exchange was $22.85 per share.
See "Risk Factors" beginning on page 4 to read about certain risks you should
consider before buying shares of our common stock.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is a
criminal offense.
The date of this Prospectus is , 2004.
TABLE OF CONTENTS
Page
ABOUT THIS PROSPECTUS........................................................1
VAIL RESORTS, INC............................................................2
RISK FACTORS.................................................................3
FORWARD-LOOKING STATEMENTS..................................................12
USE OF PROCEEDS.............................................................13
DESCRIPTION OF COMMON STOCK.................................................13
SELLING STOCKHOLDERS........................................................15
PLAN OF DISTRIBUTION........................................................17
VALIDITY OF SECURITIES......................................................19
EXPERTS.....................................................................19
WHERE YOU CAN FIND MORE INFORMATION.........................................19
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE.............................19
ABOUT THIS PROSPECTUS
We may amend or supplement this prospectus from time to time by filing
amendments or supplements with the Securities and Exchange Commission. To
understand the terms of the common stock offered by this prospectus, you should
carefully read this entire prospectus, including any amendments or supplements.
You should also read the documents referred to under the heading "Where You Can
Find More Information" below for information about us and our financial
statements.
When shares of common stock are actually sold, to the extent required, the
number of shares to be sold, the purchase price, the public offering price, the
names of any agent, dealer or underwriter and any applicable commission or
discount with respect to that particular sale and any other required information
will be set forth in an accompanying prospectus supplement. A prospectus
supplement also may update or change information contained in the basic
prospectus.
When acquiring the common stock discussed in this prospectus, you should rely
only on the information provided in this prospectus and the prospectus
supplement, including the information incorporated by reference. Neither we, nor
any underwriters or agents have authorized anyone to provide you with different
information. We are not offering common stock in any state where such an offer
is prohibited. You should not assume that the information in this prospectus,
any prospectus supplement, or any document incorporated by reference, is
truthful or complete at any date other than the date mentioned on the cover page
of those documents.
Unless otherwise mentioned or unless the context requires otherwise, all
references in this prospectus to "Vail Resorts," "we," "us," "our" or similar
references mean Vail Resorts, Inc. together with its subsidiaries.
VAIL RESORTS, INC.
We were organized as a holding company in 1997 and operate through various
subsidiaries. Our operations are grouped into three segments: Mountain, Lodging
and Real Estate, which represented approximately 69% ($500.4 million in
revenues), 25% ($176.3 million in revenues) and 6% ($45.1 million in revenues),
respectively, of our revenues for the 2004 fiscal year. We had a net loss of
approximately $6.0 million in the 2004 fiscal year. Our Mountain segment owns
and operates five premier ski resort properties which provide a comprehensive
resort experience throughout the year to a diverse clientele with an attractive
demographic profile. Our Lodging segment owns and/or manages a collection of
luxury hotels, a destination resort at Grand Teton National Park and certain
strategic lodging properties located in proximity to our mountain operations.
Collectively, the Mountain and Lodging segments are considered the Resort
Segment. Our Real Estate segment holds, develops, buys and sells real estate in
and around our resort communities.
Our principal office is located at Vail Resorts, Inc., 137 Benchmark Road, Avon,
Colorado 81620, and our telephone number is (970) 845-2500. Our Internet website
address is www.vailresorts.com.
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RISK FACTORS
In addition to the other information in this prospectus and the documents
incorporated and deemed to be incorporated herein, you should carefully consider
the following risks before making an investment decision. We believe that this
section entitled "Risk Factors" includes all material risks relating to our
business and this offering.
Risks Related to Our Business
Our business is seasonal. Our Mountain and Lodging operations are seasonal in
nature. In particular, revenues and profits for all of our Mountain and most of
our Lodging operations are substantially lower, and historically result in
losses, from late spring to late fall. Conversely, Grand Teton Lodge Company
("GTLC"), the Company's golf operations and certain managed properties' peak
operating seasons occur during the summer months while the winter season
generally results in operating losses. However, revenues and profits generated
by GTLC's summer operations, the Company's golf operations and management fees
from those managed properties are not sufficient to fully offset our off-season
losses from our Mountain and other Lodging operations. During the 2004 fiscal
year, 77.4% of total Resort (Mountain and Lodging combined) revenues were earned
during the second and third fiscal quarters. Quarterly results may also be
materially affected by the timing of snowfall and other unforeseen external
factors. Therefore, the operating results for any three-month period are not
necessarily indicative of the results that may be achieved for any subsequent
fiscal quarter or for a full fiscal year.
We are subject to unfavorable weather conditions. The ability to attract
visitors to ski resorts is influenced by weather conditions and by the amount
and timing of snowfall during the ski season. Unfavorable weather conditions can
adversely affect skier visits, and adversely affect our revenues and profits. In
the past 20 years, our Colorado ski resorts have averaged between 20 and 30 feet
of annual snowfall and Heavenly has averaged yearly snowfall of between 25 and
35 feet, significantly in excess of the average for U.S. ski resorts. However,
there is no assurance that our resorts will receive seasonal snowfalls near the
historical average in the future. Also, the early season snow conditions and
skier perceptions of early season snow conditions influence the momentum and
success of the overall season. In addition, a severe and prolonged drought could
affect our otherwise adequate snowmaking water supplies. Unfavorable weather
conditions such as drought, hurricanes, tropical storms and tornadoes can
adversely affect our other resorts and lodging properties as vacationers tend to
delay or postpone vacations if weather conditions differ from those that
typically prevail at such resorts for a given season. There is no way for us to
predict future weather patterns or the impact that weather patterns may have on
results of operations or visitation.
We depend on a seasonal workforce. Our Mountain and Lodging operations are
largely dependent on a seasonal workforce. We recruit worldwide to fill staffing
needs each season and utilize visas to enable the use of foreign workers. In
addition, we manage seasonal wages and the timing of the hiring process to
ensure the appropriate workforce is in place. While we do not currently foresee
the need to increase seasonal wages to attract employees, we cannot guarantee
that such an increase will not be necessary in the future. In addition, we
cannot guarantee that we will be able to obtain the visas necessary to hire
foreign workers who are an important source for the seasonal workforce.
Increased seasonal wages or an inadequate workforce could have an adverse impact
on our results of operations; however, we are unable to predict with any
certainty whether such situations will arise or the potential impact on results
of operations.
We are currently the subject of an SEC investigation. In October 2002, after
voluntary consultation with the SEC staff on the appropriate accounting, we
restated and reissued our historical financial statements for fiscal 1999--2001,
reflecting a revision in the accounting treatment for recognizing revenue on
initiation fees related to the sale of memberships in private clubs.
In February 2003, the SEC informed us that it had issued a formal order of
investigation with respect to us. In October 2003, the SEC issued a subpoena to
us to produce documents related to several matters, including the sale of
memberships in private clubs. In November 2003, the SEC issued an additional
subpoena to us to produce documents related primarily to the restated items
included in our Form 10-K for the year ended July 31, 2003. In April, June and
October 2004, the SEC issued additional subpoenas to us and made, and continues
to make, voluntary requests to us to provide documents and information primarily
related to further information on prior requests, as well as other items.
Certain of our current and former officers and employees have appeared or are
expected to appear
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for testimony before the SEC pursuant to subpoena. We are fully cooperating with
the SEC in its investigation. We are unable to predict the outcome of the
investigation or any action that the SEC might take, including the imposition of
fines and penalties, or other available remedies. Any adverse development in
connection with the investigation, including any expansion of the scope of the
investigation, could have a material adverse effect on us, including diverting
the efforts and attention of our management team from our business operations.
We are subject to economic downturns. Skiing, travel and tourism are
discretionary recreational activities that can be impacted by a significant
economic slowdown, which, in turn, could impact our operating results. The
extended economic downturn in recent years negatively impacted our operating
results although we had historically been relatively unaffected by economic
downturns. There can be no assurance that a continued or future decrease in the
amount of discretionary spending by the public would not have an adverse effect
on us.
Our cost reduction plan might fail to achieve anticipated cost savings and
operational efficiencies. We made favorable changes to our cost structure in
fiscal 2004 through a $25.0 million cost reduction plan. We cannot assure you
that we can maintain the cost savings implemented under the plan. We also cannot
assure you that the changes to the cost structure will not cause unanticipated
negative impacts to guest services, which could lead to adverse effects on us.
Additionally, we cannot assure you that these cost savings may not be outweighed
by cost increases in other areas.
We face significant competition. The ski resort and lodging industries are
highly competitive. The number of people who ski in the United States (as
measured in skier visits) has generally ranged between 52 million and 57 million
annually over the last decade, with approximately 57.1 million visits for the
2003/2004 ski season. The factors that we believe are important to 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
o reputation.
We have many competitors for our ski vacationers, including other major resorts
in Colorado, Lake Tahoe and other major destination ski areas worldwide. Our
destination guests can choose from any of these alternatives, as well as
non-skiing vacation destinations around the world. In addition, other forms of
leisure such as attendance at movies, sporting events and participation in other
indoor and outdoor recreational activities are available to potential guests.
RockResorts International, LLC ("RockResorts") hotels and our other hotels
compete with numerous other hotel companies that may have greater financial
resources than we do. Many of our competitors in both the Mountain and Lodging
segments may be able to adapt more quickly to changes in customer requirements
or devote greater resources to promotion of their offerings than we can. We
believe that developing and maintaining a competitive advantage will require
continued investment by us in our resorts. We cannot assure you that we will
have sufficient
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resources to make the necessary investments to do so, and we cannot assure you
that we will be able to compete successfully in this market or against such
competitors.
In addition, each of our hotels competes with other hotels in its geographic
area. A number of additional hotel rooms have been or may be built in the
geographic areas in which our hotels are located, which could adversely affect
the results of operations of these hotels. An oversupply of hotel rooms could
adversely affect both occupancy and rates in the markets in which our hotels are
located. A significant increase in the supply of mid-price, upscale, and luxury
hotel rooms and suites, if demand fails to increase proportionately, could have
an adverse effect on our business, financial condition and results of
operations.
Our recent or future acquisitions might not be successful. In recent years, we
have acquired a major ski resort and several other destination resorts and hotel
properties, including Heavenly Ski Resort, RockResorts and its associated
management contracts, The Lodge at Rancho Mirage and The Vail Marriott Mountain
Resort & Spa, as well as developable land in proximity to such resorts. We
cannot assure you that we will be able to continue to successfully integrate and
manage these acquired properties profitably or increase our profits from these
operations. We continually evaluate potential acquisitions and intend to
actively pursue acquisition opportunities, some of which could be significant.
We would face various risks from additional acquisitions, including:
o inability to integrate acquired businesses into our operations;
o potential goodwill impairment;
o diversion of our management's attention;
o potential increased debt leverage; and
o unanticipated problems or liabilities.
Similar problems from future acquisitions could adversely affect our operations
and financial performance. In addition, we run the risk that any 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.
Our future development plans might not be successful. We have significant
development plans for our operations. Specifically, our development plans
include:
o continued work on the Vail redevelopment, including the redevelopment
of the Lionshead base area and other land holdings located within the
Town of Vail;
o the Jackson Hole area residential and golf development;
o expansion of the Red Sky residential development;
o two proposed developments at the base areas of Breckenridge Peaks 7
and 8; and
o additional planning and development projects in and around each of the
Company's resorts.
We could experience significant difficulties initiating or completing these
projects, including:
o delays in completion;
o inaccurate cost estimates;
o difficulty in meeting pre-sale targets;
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o difficulty in receiving the necessary regulatory approvals; and
o difficulty in obtaining qualified subcontractors.
The Company generally pre-sells residential units to ensure the economic
viability of a development project. In order to mitigate the risks of
development projects the Company sets pre-sell targets which generally allow the
Company to achieve sales revenues adequate to cover projected development costs
prior to the commencement of construction. The targets are set by management,
and approved by the board of directors. The Company strives to meet its pre-sale
targets in the period between the commencement of the marketing of a development
and the planned commencement of construction. The periods have historically
ranged between two and twelve months.
All of these development plans are designed to make our resorts attractive to
our clients and to keep us competitive. If we are not successful in implementing
our development plans, our clients may choose to go to other resorts that they
perceive have better amenities and our results of operations could be materially
affected.
We may not be able to fund our development plans. Our ability to fund our
development plans will depend on our ability to generate sufficient cash flow
from operations and/or our ability to borrow from third parties. We cannot
assure you that our operations will be able to generate sufficient cash flow to
fund such development costs, or that we will be able to obtain sufficient
financing on adequate terms, or at all. Our ability to generate cash flow and
our ability to obtain third-party financing will depend upon many factors,
including:
o our future operating performance;
o general economic conditions and economic conditions affecting the
resort industry, the ski industry and the real estate project
financing market;
o our ability to hire and retain employees at reasonable cost;
o our ability to meet our pre-sell targets on our development projects;
o competition; and
o legislative and regulatory matters affecting our operations and
business.
Some of these factors are beyond our control. Any inability to generate
sufficient cash flows from operations or to obtain adequate third-party
financing could cause us to delay or abandon certain development plans which
could have a material adverse effect on our operating results and financial
condition.
Terrorist acts upon the United States and acts of war (actual or threatened)
could have a material adverse effect on us. The terrorist acts carried out
against the United States on September 11, 2001 have had an adverse effect on
the global travel and leisure industry. The war with Iraq and its aftermath also
had a materially adverse effect on us. We cannot guarantee if or when normal
travel and vacation patterns will resume. Additional terrorist acts against the
United States and the threat of or the actual act of war by or upon the United
States could result in further degradation of discretionary travel, upon which
our operations are highly dependent. Such degradation could have a material
adverse impact on our results of operations.
Unforeseen global events could adversely impact us. The SARS epidemic in the
spring of 2003 adversely impacted the international travel industry and,
consequently, adversely impacted our business. Other such events of a global
nature could also adversely impact discretionary travel, upon which our
operations are highly dependent, which could have a material adverse impact on
our results of operations.
We rely on government permits. Virtually all of our ski trails and related
activities at Vail, Breckenridge, Keystone and Heavenly and a majority of Beaver
Creek are located on federal land. The United States Forest Service (the "Forest
Service") has granted us permits to use these lands, but maintains the right to
review and approve many
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operational matters, as well as the location, design and construction of
improvements in these areas. Currently, our permits expire October 31, 2031 for
Vail, December 31, 2029 for Breckenridge, December 31, 2032 for Keystone,
December 31, 2038 for Beaver Creek and May 1, 2042 for Heavenly. The Forest
Service can terminate most of these permits if, in its opinion, such termination
is required in the public interest. A termination of any of our permits would
adversely affect our business and operations.
We have applied for several new permits or other approvals for improvements and
new development. These efforts, if not successful, could impact our expansion
efforts as currently contemplated. Furthermore, Congress may increase the fees
we pay to the Forest Service for use of these federal lands.
GTLC operates three resort properties within Grand Teton National Park under a
concession contract with the National Park Service that expired on December 31,
2002. This contract was extended for two years through December 31, 2004, or
until such time a new contract is awarded, whichever occurs first. The new
contract for this concession is subject to a competitive bidding process under
the rules promulgated to implement the concession provisions of the National
Park Omnibus Management Act of 1998. The bidding and renewal process was
expected to occur in early to mid-2004 but has been delayed and we anticipate
receiving another extension of our existing contract for at least one year. We
cannot predict or guarantee the prospects for success in being awarded a new
contract, although we believe GTLC is well-positioned to obtain a new concession
contract on satisfactory terms. In the event GTLC is not the successful bidder
for the new concession contract, under the existing contract, GTLC is required
to sell to the new concessionaire its "possessory interest" in improvements and
its other property used in connection with the concession operations. GTLC would
then be entitled to be compensated by the successful bidder for the value of its
"possessory interest" in the assets. Under an amendment to the contract, in the
summer of 2003, GTLC and the National Park Service agreed upon the value to be
contained in the prospectus soliciting bids for the contract.
We are subject to litigation in the ordinary course of business. We are, from
time to time, subject to various legal proceedings and claims, either asserted
or unasserted. Any such claims, whether with or without merit, could be
time-consuming and expensive to defend and could divert management's attention
and resources. While management believes we have adequate insurance coverage and
accrued loss contingencies for all known matters, we cannot assure that the
outcome of all current or future litigation will not have a material adverse
effect on us. For a more detailed discussion of our legal proceedings see "Legal
Proceedings" and Note 12 to "Consolidated Financial Statements" included in our
Annual Report on Form 10-K for the fiscal year ended July 31, 2004.
We are subject to extensive environmental laws and regulations in the ordinary
course of business. Our operations are subject to a variety of federal, state
and local environmental laws and regulations including those relating to
emissions to the air, discharges to water, storage, treatment and disposal of
wastes, land use, remediation of contaminated sites and protection of natural
resources such as wetlands. For example, future expansions of certain of our ski
facilities must comply with applicable forest plans approved under the National
Forest Management Act or local zoning requirements. Our facilities are subject
to risks associated with mold and other indoor building contaminants. From time
to time, our operations are subject to inspections by environmental regulators
or other regulatory agencies. We are also subject to worker health and safety
requirements. We believe our operations are in substantial compliance with
applicable material environmental, health and safety requirements. However, our
efforts to comply do not remove the risk that we may be held liable, incur fines
or be subject to claims for damages, and that the amount of any liability,
fines, damages or remediation costs may be material for, among other things, the
presence or release of regulated materials at, on or emanating from properties
we now or formerly owned or operated, newly discovered environmental impacts or
contamination at or from any of our properties, or changes in environmental laws
and regulations or their enforcement. For a more detailed discussion of our mold
remediation efforts see and Notes 13 to "Consolidated Financial Statements"
included in our Annual Report on Form 10-K for the fiscal year ended July 31,
2004.
Implementation of existing and future legislation, rulings, standards and
interpretations from the FASB or other regulatory bodies could affect the
presentation of our financial statements and related disclosures. Future
regulatory requirements could significantly change our current accounting
practices and disclosures. Such changes in the presentation of our financial
statements and related disclosures could change your interpretation or
perception of our financial position and results of operations.
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We are subject to the risks of brand concentration. We are subject to the
potential risks associated with concentration of our hotels under the
RockResorts brand and the brand image associated with each of our ski areas. A
negative public image or other adverse event which becomes associated with one
of our brands could adversely affect our revenues and profitability.
Our future growth and real estate development requires additional capital whose
availability is not assured. We intend to make significant investments in our
resorts to maintain our competitive position. We spent approximately $63.0
million, $106.3 million and $76.2 million in the fiscal years ended July 31,
2004, 2003 and 2002, respectively, on capital expenditures (primarily related to
our Mountain and Lodging segments) and we have made investments of approximately
$27.8 million, $22.6 million and $68.7 million in fiscal years 2004, 2003 and
2002, respectively, in our real estate developments. We expect to continue
making substantial resort capital expenditures and investments in real estate
development. We have not yet finalized a capital budget for calendar 2005;
however, at this time, we anticipate capital expenditures (primarily related to
our Mountain and Lodging segments) will be consistent with the approximately
$61.9 million calendar 2004 budget. Based on the status of several specific real
estate projects, we will continue to invest significant amounts in real estate
over the next several years. 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;
o non-recourse, sale leaseback or other financing; or
o some combination of the above.
We might not be able to obtain financing for future expenditures on favorable
terms or at all.
Future changes in the real estate market could affect the value of our
investments. We have extensive real estate holdings near our mountain resorts
and in Wyoming. We plan to make significant additional investments in developing
property at all of 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 or delays;
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.
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If we do not retain our key personnel, our business may suffer. The success of
our business is heavily dependent on the leadership of our key management
personnel, including our Chief Executive Officer, Adam M. Aron, our Chief
Financial Officer, Jeffrey W. Jones, each of our Senior Vice Presidents, the
President of Rockresorts and the President of Vail Resorts Development Company.
If any of these persons were to leave our company, it would be difficult to
replace them, and our business could be harmed. We do not have "key-man" life
insurance.
Risks Relating to This Offering and Our Capital Structure
Future sales of shares of our common stock could depress the price of the common
stock. Future sales of common stock by us or our existing shareholders could
adversely affect the prevailing market price of the common stock. As of November
10, 2004, we had 35,421,947 shares of common stock outstanding of which
23,689,652 are freely tradeable without restriction. As of November 10, 2004, we
had approximately 11,732,295 shares of common stock outstanding which are freely
tradeable except for the fact that such shares are beneficially owned by people
who may be deemed "affiliates" (including the shares included in this
prospectus), and consequently, those shares 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 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.
As of November 10, 2004, we had 3,062,903 shares of common stock underlying
vested stock options and 2,057,062 shares of common stock underlying stock
options that have not yet vested that may be sold in the future.
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 our equity
securities.
Our stock price is highly volatile. The market price of our stock is highly
volatile and subject to wide fluctuations in response to factors such as the
following, some of which are beyond our control:
o quarterly variations in our operating results;
o operating results that vary from the expectations of securities
analysts and investors;
o changes in expectations as to our future financial performance,
including financial estimates by securities analysts and investors or
such guidance provided by us;
o announcements of new services by us or our competitors;
o announcements by us or our competitors of significant contracts,
acquisitions, dispositions, strategic partnerships, joint ventures or
capital commitments;
o additions or departures of key personnel;
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o future sales of our securities;
o trading and volume fluctuations;
o changes in the weather;
o seasonal fluctuations; and
o other unforeseen events.
Stock markets in the United States often experience extreme price and volume
fluctuations. Market fluctuations, as well as general political and economic
conditions such as a recession or interest rate or currency rate fluctuations,
could adversely affect the market price of our stock.
We have not historically paid cash dividends to our common shareholders. Other
than a rights distribution in October 1996 which gave each stockholder of record
the right to receive $2.44 per share of common stock held, we have never
declared or paid any cash dividends on our common stock. Payment of any future
dividends on our common stock will depend upon our earnings and capital
requirements, the terms of our debt instruments and preferred stock and other
factors our board of directors considers appropriate.
Anti-takeover provisions affecting us could prevent or delay a change of control
that is beneficial to you. Provisions of our certificate of incorporation and
bylaws, provisions of our debt instruments and other agreements and provisions
of applicable Delaware law and applicable federal and state regulations may
discourage, delay or prevent a merger or other change of control that holders of
our securities may consider favorable. These provisions could:
o delay, defer or prevent a change in control of our company;
o discourage bids for our securities at a premium over the market price;
o adversely affect the market price of, and the voting and other rights
of the holders of, our securities; or
o impede the ability of the holders of our securities to change our
management.
Our substantial indebtedness could adversely affect our financial health and
prevent us from fulfilling our obligations. We have a significant amount of
indebtedness. On July 31, 2004, we had total indebtedness of $625.8 million.
Our substantial indebtedness could have important consequences to you. For
example, it could:
o make it more difficult for us to satisfy our obligations;
o increase our vulnerability to general adverse economic and industry
conditions;
o require us to dedicate a substantial portion of our cash flow from
operations to payments on our indebtedness, thereby reducing the
availability of our cash flow to fund working capital, capital
expenditures, research and development efforts and other general
corporate purposes;
o limit our flexibility in planning for, or reacting to, changes in our
business and the industry in which we operate;
o place us at a competitive disadvantage compared to our competitors
that have less debt; and
o limit our ability to borrow additional funds.
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In addition, the indenture governing the 6.75% senior subordinated notes and our
credit facility contain financial and other restrictive covenants that limit our
ability to engage in activities that may be in our long-term best interests. For
example, the indenture and the credit facility contain a number of restrictive
covenants that impose significant operating and financial restrictions on us,
including restrictions on our ability to, among other things,
o incur additional debt;
o pay dividends and make other restricted payments;
o create liens;
o make investments;
o engage in sales of assets and subsidiary stock;
o enter into sale-leaseback transactions;
o enter into transactions with affiliates;
o transfer all or substantially all of our assets or enter into merger
or consolidation transactions; and
o make capital expenditures.
Our failure to comply with those covenants could result in an event of default
which, if not cured or waived, could result in the acceleration of all of our
debts. Despite current indebtedness levels, we and our subsidiaries may still be
able to incur substantially more debt. This could further exacerbate the risks
associated with our substantial leverage.
We and our subsidiaries may be able to incur substantial additional indebtedness
in the future. The terms of the indenture do not fully prohibit us or our
subsidiaries from doing so. Our credit facility permits additional borrowings of
up to $212.6 million (as of July 31, 2004). If new debt is added to our and our
subsidiaries' current debt levels, the related risks that we and they now face
could intensify.
There are restrictions imposed by the terms of our indebtedness. The operating
and financial restrictions and covenants in our credit facility and the
indenture governing the 6.75% senior subordinated notes may adversely affect our
ability to finance future operations or capital needs or to engage in other
business activities. In addition, there can be no assurance that we will meet
the financial covenants contained in our credit facility. If we breach any of
these restrictions or covenants, or suffer a material adverse change which
restricts our borrowing ability under our credit facility, we would be unable to
borrow funds thereunder without a waiver, which inability could have an adverse
effect on our business, financial condition and results of operations. A breach
could cause a default under the notes and our other debt. Our indebtedness may
then become immediately due and payable. We may not have or be able to obtain
sufficient funds to make these accelerated payments, including payments on the
notes.
To service our indebtedness, we will require a significant amount of cash,
generation of which depends on many factors beyond our control. Our ability to
make payments on and to refinance our indebtedness, including our 6.75% senior
subordinated notes, and to fund planned capital expenditures and development
efforts will depend on our ability to generate cash in the future. This, to a
certain extent, is subject to general economic, financial, competitive,
legislative, regulatory and other factors that are beyond our control.
Based on our current level of operations, we believe our cash flow from
operations, available cash and available borrowings under our credit facility
will be adequate to meet our future liquidity needs for at least the next twelve
months.
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We cannot assure you, however, that our business will generate sufficient cash
flow from operations or that future borrowings will be available to us under our
credit facility in an amount sufficient to enable us to pay our indebtedness,
including the notes, or to fund our other liquidity needs. We may need to
refinance all or a portion of our indebtedness, including the notes, on or
before maturity. We cannot assure you that we will be able to refinance any of
our indebtedness, including our credit facility and the notes, on commercially
reasonable terms or at all.
FORWARD-LOOKING STATEMENTS
This prospectus contains "forward-looking statements" within the meaning of
Section 27A of the Securities Act and Section 21E of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"). All statements other than statements
of historical fact are "forward-looking statements" for purposes of federal and
state securities laws. Forward-looking statements may include the words "may,"
"will," "plans," "estimates," "anticipates," "believes," "expects," "intends"
and similar expressions. Although we believe that such statements are based on
reasonable assumptions, these forward-looking statements are subject to numerous
factors, risks and uncertainties that could cause actual outcomes and results to
be materially different from those projected or assumed in our forward-looking
statements. These factors, risks and uncertainties include, among others, the
following:
o the existing SEC formal investigation of us;
o economic downturns;
o terrorist acts upon the United States;
o threat of or actual war;
o unfavorable weather conditions;
o our ability to obtain financing on terms acceptable to us to finance
our capital expenditure and growth strategy;
o our ability to develop our resort and real estate operations;
o competition in our Mountain and Lodging businesses;
o loss of hotel management contracts;
o our reliance on government permits for our use of federal land;
o our ability to integrate and successfully operate future acquisitions;
o adverse consequences of current or future legal claims; and
o adverse changes in the real estate market.
Our actual results, performance or achievements could differ materially from
those expressed in, or implied by, the forward-looking statements. We can give
no assurances that any of the events anticipated by the forward-looking
statements will occur or, if any of them do, what impact they will have on our
results of operations and financial condition. We do not intend, and we
undertake no obligation, to update any forward-looking statement. We urge you to
review carefully "Risk Factors" in this prospectus for a more complete
discussion of the risks of an investment in our securities.
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USE OF PROCEEDS
The proceeds from the sale of the shares of common stock offered by this
prospectus, if any, will be received directly by the selling stockholders and we
will not receive any proceeds from the sale of these shares.
DESCRIPTION OF COMMON STOCK
The following summary description of our common stock is based on the provisions
of our amended and restated certificate of incorporation and amended and
restated by-laws and the applicable provisions of the Delaware General
Corporation Law. This information may not be complete in all respects and is
qualified entirely by reference to the provisions of our amended and restated
certificate of incorporation, amended and restated by-laws and the Delaware
General Corporation Law. For information on how to obtain copies of our amended
and restated certificate of incorporation and amended and restated by-laws, see
"Where You Can Find More Information."
Common Stock
Our authorized capital stock consists of 80,000,000 shares of common stock, par
value $0.01 per share. As of November 10, 2004, there were approximately
35,421,947 shares of common stock issued and outstanding held by approximately
525 holders of record. The following description of our capital stock and
provisions of our amended and restated certificate of incorporation and amended
and restated by-laws are only summaries, and we encourage you to review complete
copies of our amended and restated certificate of incorporation and amended and
restated by-laws, which we have filed previously with the SEC.
All outstanding shares of common stock are validly issued, fully paid and
non-assessable. Subject to the prior rights of the holders of any preferred
stock, the holders of outstanding shares of common stock are entitled to receive
dividends out of assets legally available therefor at such times and in such
amounts as our board of directors may from time to time determine. The holders
of shares of common stock will have no preemptive or subscription rights to
purchase any of our securities. In the event of our liquidation, dissolution,
winding up or distribution of our assets, the holders of common stock are
entitled to receive pro rata the assets which are legally available for
distribution, after payment of all debts and other liabilities and subject to
the prior rights of any holders of preferred stock, if any, then outstanding.
Each outstanding share of common stock is entitled to vote on all matters
submitted to a vote of stockholders.
Delaware Law and Certain Provisions of our Certificate of Incorporation and
By-Laws
Statutory Provisions. We are a Delaware corporation and are subject to Section
203 of the Delaware General Corporation Law ("Delaware Law"). In general,
Section 203 prevents an "interested stockholder" (defined generally as a person
owning 15% or more of a corporation's outstanding voting stock) from engaging in
a "business combination" (as defined) with a Delaware corporation for three
years following the time such person became an interested stockholder unless (i)
prior to the time such person became an interested stockholder, the board of
directors of the corporation approved the transaction in which the interested
stockholder became an interested stockholder or approved the business
combination, (ii) upon consummation of the transaction that resulted in the
interested stockholder becoming an interested stockholder, the interested
stockholder owned at least 85% of the voting stock of the corporation
outstanding at the time the transaction commenced (excluding (1) shares owned by
persons who are both officers and directors of the corporation and (2) held by
certain employee stock ownership plans) or (iii) at or subsequent to the time
the business combination is approved by the board of directors of the
corporation and authorized at a meeting of stockholders, and not by written
consent, by the affirmative vote of at least two-thirds of the outstanding
voting stock of the corporation not owned by the interested stockholder.
Directors Liability and Indemnification. Our Amended and Restated Certificate of
Incorporation (the "Certificate") provides that to the fullest extent permitted
by the Delaware General Corporation Law or other applicable law, directors shall
not be liable to us or our 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 us or our 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 repur-
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chases and (iv) for any transaction from which the director derives an improper
personal benefit. The effect of the provision of the Certificate is to eliminate
our rights and our stockholders rights (through stockholders' derivative suits
on our behalf) 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 our
rights or any right of our stockholders 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, our bylaws provide that we shall indemnify our directors, officers
and employees to the fullest extent permitted by applicable law.
Advance Notice Provisions for Stockholder Nominations and Stockholder Proposals.
Our by-laws establish an advance notice procedure for stockholders to make
nominations of candidates for election as director, or to bring other business
before an annual meeting of our stockholders (the "Stockholder Notice
Procedure").
The Stockholder Notice Procedure provides that only persons who are nominated
by, or at the direction of, our board, or by a stockholder who has given timely
written notice to our principal executive offices prior to the meeting at which
directors are to be elected, will be eligible for election as directors. The
Stockholder Notice Procedure provides that at an annual meeting only such
business may be conducted as has been properly brought before the meeting by, or
at the direction of, our board or by a stockholder who has given timely written
notice to our principal executive offices of such stockholder's intention to
bring such business before such meeting. Under the Stockholder Notice Procedure,
to be timely, notice of stockholder nominations or proposals to be made at an
annual or special meeting must be received by us not less than 30 days prior to
the scheduled date of the meeting (or, if less than 60 days' notice of the date
of the meeting is given, the 9th day following the day such notice was made).
Under the Stockholder Notice Procedure, a stockholder's notice to us proposing
to nominate a person for election as a director must contain certain information
about the nominating stockholder and the proposed nominee. Under the Stockholder
Notice Procedure, a stockholder's notice relating to the conduct of business
other than the nomination of directors must contain certain information about
such business and about the proposing stockholder. If the officer presiding at a
meeting determines that a person was not nominated, or other business was not
properly brought before the meeting, in accordance with the Stockholder Notice
Procedure, such person will not be eligible for election as a director, or such
business will not be transacted at such meeting, as the case may be.
By requiring advance notice of nominations by stockholders, the Stockholder
Notice Procedure affords our board an opportunity to consider the qualifications
of the proposed nominees and, to the extent deemed necessary or desirable by our
board, to inform stockholders about such qualifications. By requiring advance
notice of other proposed business, the Stockholder Notice Procedure also
provides a more orderly procedure for conducting annual meetings of stockholders
and, to the extent deemed necessary or desirable by our board, provides our
board with an opportunity to inform stockholders, prior to such meetings, of any
business proposed to be conducted at such meetings, together with any
recommendations as to our board's position regarding action to be taken with
respect to such business, so that stockholders can better decide whether to
attend such a meeting or to grant a proxy regarding the disposition of any such
business.
Although our by-laws do not give our board any power to approve or disapprove
stockholder nominations for the election of directors or proposals for action,
the foregoing provisions may have the effect of precluding a contest for the
election of directors or the consideration of stockholder proposals if the
proper procedures are not followed, and of discouraging or deferring a third
party from conducting a solicitation of proxies to elect its own slate of
directors or to approve its own proposal, without regard to whether
consideration of such nominees or proposals might be harmful or beneficial to us
and our stockholders.
Written Consent of Stockholders. Our by-laws provide that stockholders may
consent to corporate action by written consent without a meeting. Any
stockholder of record seeking to have the stockholders authorize or take
corporate action by written consent shall, by written notice to our secretary,
request that our board of directors fix a record date. Written consents shall be
delivered to us by delivery to our registered office in Delaware, our principal
place of business, or to any of our officers or agents having custody of the
book in which proceedings of meetings of stockholders are recorded, by hand or
by certified or registered mail, return receipt requested (the "Delivery
Requirements"). We will engage independent inspectors of elections for the
purpose of performing promptly a minis-
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terial review of the validity of the consents and revocations. For the purpose
of permitting the inspectors to perform such review, no action by written
consent without a meeting shall be effective until such date as the independent
inspectors certify to us that the consents delivered to us in accordance with
the Delivery Requirements represent at least the minimum number of votes that
would be necessary to take the corporate action. Our board of directors or any
stockholder shall not be entitled to contest the validity of any consent or
revocation thereof, whether before or after such certification by the
independent inspectors, or to take any other action (including, without
limitation, the commencement, prosecution or defense of any litigation with
respect thereto, and the seeking of injunctive relief in such litigation). The
written consents shall be effective to take the corporate action referred to
therein only if, within sixty (60) days of the earliest dated written consent
received in accordance with the Delivery Requirements, a written consent or
consents signed by a sufficient number of holders to take action are delivered
to us pursuant to the Delivery Requirements.
Certain Effects of Authorized but Unissued Stock. As of November 10, 2004, there
were 44,578,053 shares of common stock authorized but unissued, and 25,000,000
shares of preferred stock authorized but unissued, for future issuance without
additional stockholder approval. These additional shares may be utilized for a
variety of corporate purposes, including future offerings to raise additional
capital or to facilitate corporate acquisitions.
The issuance of preferred stock could have the effect of delaying or preventing
a change in our control. The issuance of preferred stock could decrease the
amount of earnings and assets available for distribution to the holders of
common stock or could adversely affect the rights and powers, including voting
rights, of the holders of the common stock. In certain circumstances, such
issuance could have the effect of decreasing the market price of the common
stock.
One of the effects of the existence of unissued and unreserved common stock or
preferred stock may be to enable our board to issue shares to persons friendly
to current management, which could render more difficult or discourage an
attempt to obtain control of us by means of a merger, tender offer, proxy
contest or otherwise, and thereby protect the continuity of management. Such
additional shares also could be used to dilute the stock ownership of persons
seeking to obtain control of us.
Transfer Agent and Registrar
The Transfer Agent and Registrar for the common stock is Wells Fargo Bank
Minnesota, N.A.
In the event of our liquidation, dissolution or winding up, holders of common
stock are entitled to share ratably in the assets available for distribution,
subject to any prior rights of any holders of preferred stock, if any, then
outstanding.
SELLING STOCKHOLDERS
Background
All of the 1,646,670 shares of common stock covered by this prospectus were
acquired by the selling stockholders listed in the table below from Apollo Ski
Partners, L.P. when Apollo Ski Partners, L.P. distributed the shares of common
stock to its partners. Apollo distributed the shares to its partners in
proportion to each partner's interest in the partnership. Apollo Ski Partners,
L.P. did not dissolve after this distribution and continues to exist as a
partnership. In connection with such distribution to the selling stockholders
listed below, we agreed to prepare and file with the SEC the registration
statement of which this prospectus is a part registering the resale of those
shares by the selling stockholders.
Beneficial Ownership
The table below provides the following information:
o the names of the selling stockholders as of the date of this
prospectus;
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o the number of common shares that each such holder may offer and sell
from time to time under this prospectus; and
o the number of common shares beneficially owned by each such holder as
of the date of this prospectus and as of the completion of the
offering to which this prospectus relates, in each case as determined
in accordance with applicable rules promulgated by the SEC.
The information presented in this table assumes that the selling stockholders
will sell all of the shares offered under this prospectus. However, because the
selling stockholders may sell all, some, or none of their shares under this
prospectus, or in another permitted manner (including, for example in private
transactions, pursuant to Rule 144 or otherwise in public market transactions),
no assurances can be given as to the actual number of shares that will be sold
by the selling stockholders or that will be held by the selling stockholders
after completion of the offering to which this prospectus relates.
This table is prepared based upon information supplied to us by the listed
selling stockholders. However, since the date on which the information in this
table is presented, the selling stockholders listed in this table may have sold
or transferred, in transactions exempt from the registration requirements of the
Securities Act, some or all of their shares or may have acquired additional
shares. The shares covered by this prospectus may be offered from time to time
by the selling stockholders named below or by their pledges, donees,
transferees, or other successors in interest. Information concerning the selling
stockholders may change from time to time and changed information will be
presented in a supplement to this prospectus if and when necessary or required.
The applicable percentages of ownership are based on an aggregate of 35,421,947
shares of Common Stock issued and outstanding on November 10, 2004.
Common Stock Common Stock
Beneficially Owned Prior Beneficially Owned After
to the Offering the Offering
------------------------ ------------------------
Maximum
Number of
Shares of
Common
Percent of Stock Number of
Number of Common Which Shares of Percent of
Shares of Stock Out- May Be Common Common Stock
Selling Stockholders Common Stock standing(1) Offered Stock Outstanding
-------------------- ------------ ----------- ------- ----- -----------
Andy Africk.......................... 1,501 * 1,501 0 0%
Apollo Investment Fund, L.P.......... 200,000 * 200,000 0 0%
Jeff Benjamin........................ 18,014 * 18,014 0 0%
Larry Berg........................... 1,501 * 1,501 0 0%
Leon D. Black (2) ................... 738,890 2.09% 738,890 0 0%
Debra Black.......................... 141,112 * 141,112 0 0%
Sandi Brill.......................... 600 * 600 0 0%
Peter Copses......................... 27,094 * 27,094 0 0%
Robert Falk.......................... 18,014 * 18,014 0 0%
Michael S. Gross..................... 97,579 * 84,429 13,150 *
John J. Hannan (2) (3) .............. 157,742 * 157,742 0 0%
Josh Harris (2)...................... 9,044 * 9,044 0 0%
Robert A. Katz (2) (4) .............. 20,545 * 10,545 10,000 *
Kemble Limited....................... 92,253 * 92,253 0 0%
William Mack (5) .................... 69,002 * 61,502 7,500 *
Marc J. Rowan (2) (6) .............. 97,579 * 84,429 13,150 *
All selling stockholders, as a group 1,690,470 4.77% 1,646,670 43,800 *
(1) Calculated based on 35,421,947 common shares outstanding as of November 10,
2004.
(2) Messrs. Black, Hannan, Harris, Katz, Mack and Rowan are associated with
Apollo Advisors. Apollo Advisors is the managing general partner of Apollo
Investment Fund, and Apollo Investment Fund is the general partner of
Apollo Ski Partners, L.P. From 1992 to October 2004, Apollo Ski Partners
held substantially all of the Class A Common Stock of the Company and
consequently had the right to elect two-thirds of the members of the Board
of Directors of the Company. In addition, Apollo Advisors received a
management fee from the Company during this period for management services
provided to the Company.
(3) Mr. Hannan has been a director of the Company since January 2004.
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(4) Mr. Katz has been a director of the Company since June 1996.
(5) Mr. Mack was a director of the Company from January 1993 through September
2004.
(6) Mr. Rowan was a director of the Company from October 1992 through September
2004.
* Less than 1% of total shares outstanding.
PLAN OF DISTRIBUTION
This prospectus relates to the offer and sale from time to time of up to
1,646,670 common shares by the selling stockholders, which includes the holders
listed above under the caption "Selling Stockholders" and any of their
respective pledges, donees, transferees, or other successors in interest
(including successors by gift, partnership distribution or other
non-sale-related transfer effected after the date of this prospectus). Any
selling stockholders other than those listed above will be identified in a
supplement to this prospectus, which will include all required information
regarding such selling stockholders. The selling stockholders will act
independently of us and one another in making decisions with respect to the
timing, manner, and size of each sale of common shares covered by this
prospectus.
The sale of the shares by the selling stockholders may be effected from time to
time by selling the shares directly to purchasers or through one or more
underwriters or broker-dealers. In connection with any such sale, any such
underwriters or broker-dealers may act as agent for the selling stockholders or
may purchase from the selling stockholders all or a portion of the shares as
principal, and any such sale may be made pursuant to any of the methods
described below. If the selling stockholders sell the shares through
underwriters or broker-dealers, the selling stockholders will be responsible for
underwriting discounts or commissions or agents' commissions. The total proceeds
to the selling stockholders will be the purchase price of the shares, less any
discounts and commissions paid by the selling stockholders. We will not receive
any of the proceeds from the selling stockholders' sale of the common shares.
The selling stockholders may be deemed to be "underwriters," within the meaning
of the Securities Act.
The selling stockholders may sell the shares in one or more transactions:
o on the New York Stock Exchange or any other stock exchange or
automated interdealer quotation system on which the shares are then
listed or traded;
o in the over-the-counter market; or
o in privately negotiated transactions.
These sales may be effected at:
o fixed prices;
o prevailing market prices at the time of sale;
o varying prices determined at the time of sale; or
o negotiated prices.
The shares also may be sold in one or more of the following transactions:
o block transactions (which may involve crosses) in which a
broker-dealer may sell all or a portion of such shares as agent but
may position and resell all or a portion of the block as principal to
facilitate the transaction;
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o purchases by a broker-dealer as principal and resale by such
broker-dealer for its own account;
o ordinary brokerage transactions and transactions in which any such
broker-dealer solicits purchasers;
o sales in other ways not involving market makers or established trading
markets, including direct sales to purchasers;
o short sales;
o the writing of options, whether or not the options are listed on an
options exchange;
o distribution by a selling stockholder to its partners, members or
stockholders;
o any other method of sale permitted pursuant to applicable law; and
o any combination of any of these methods of sale.
In effecting sales, broker-dealers engaged by the selling stockholders may
arrange for other broker-dealers to participate. Broker-dealers will receive
commissions or other compensation from the selling stockholders in amounts to be
negotiated immediately prior to the sale. Broker-dealers may also receive
compensation from purchasers of the shares that is not expected to exceed that
customary in the types of transactions involved.
From time to time, the selling stockholders may pledge, hypothecate or grant a
security interest in some or all of the shares owned by them. The pledges,
secured parties or persons to whom the shares have been hypothecated will, upon
foreclosure in the event of default, be deemed to be selling stockholders. The
number of a selling stockholder's shares offered under this prospectus will
decrease as and when it takes such actions, but the plan of distribution for
that selling stockholder will otherwise remain unchanged. In addition, a selling
stockholder may, from time to time, sell the shares short, including in
connection with hedging transactions. In those instances, this prospectus may be
delivered in connection with the short sales and the shares offered under this
prospectus may be used to cover those short sales.
The selling stockholders are not obligated to, and there is no assurance that
the selling stockholders will, sell any or all of the shares covered by this
prospectus. In addition, the shares that qualify for sale under Rule 144 of the
Securities Act may be sold under Rule 144 rather than under this prospectus. The
selling stockholders also may transfer, devise, or gift the shares by other
means not described in this prospectus.
In connection with the distribution by Apollo Ski Partners, L.P. of the common
shares covered by this prospectus to the selling stockholders, we agreed to
prepare and file with the SEC the registration statement of which this
prospectus is a part registering the resale of those shares by the selling
stockholders, including the payment of our costs of such filing.
We have agreed to keep the registration statement of which this prospectus is a
part effective until the earlier of (i) the six month anniversary of the
effective date of the registration statement, or (ii) the date on which all of
the shares covered by this registration statement have been sold. However, at
any time and from time to time, we may extend or suspend the availability of
this prospectus, and direct the selling stockholders accordingly to discontinue
offers and sales of their common shares pursuant to this prospectus, if (a) the
SEC issues a stop order suspending the effectiveness of the registration
statement of which this prospectus is a part, (b) any event occurs or fact
exists that would result in this prospectus containing any untrue statement of a
material fact or omitting to state a material fact required to be stated herein
or necessary to make the statements herein, in light of the circumstances under
which they were made, not misleading, or (c) any corporate development
(including, without limitation, a potential acquisition or divestiture, a
financing, or the review by the SEC of our prior SEC filings) occurs or is
pending that, in our reasonable judgment, makes it appropriate to suspend the
availability of this prospectus.
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VALIDITY OF SECURITIES
The validity of the common stock will be passed upon for us by Cahill Gordon &
Reindel LLP.
EXPERTS
The consolidated financial statements incorporated in this prospectus by
reference to the Annual Report on Form 10-K for the year ended July 31, 2004
have been so incorporated in reliance on the report of PricewaterhouseCoopers
LLP, an independent registered public accounting firm, given on the authority of
said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE INFORMATION
We are required to file annual, quarterly and special reports, proxy statements,
any amendments to those reports and other information with the SEC. You may read
and copy any documents filed by us with the SEC at the SEC's public reference
room at 450 Fifth Street, N.W., Washington, D.C. 20549. Please call the SEC at
1-800-SEC-0330 for further information on the public reference room. Reports,
proxy statements and information statements, any amendments to those reports and
other information filed electronically by us with the SEC are available to the
public at the SEC's website at http://www.sec.gov. The Company's SEC
information, including the annual report on Form 10-K, quarterly reports on Form
10-Q, current reports on Form 8-K and amendments to those reports pursuant to
Section 13(a) or 15(d) of the Securities Exchange Act of 1934 (the "Act") are
also available free of charge on the Company's corporate website
(www.vailresorts.com).
We have filed a registration statement on Form S-3 with the SEC relating to the
shares covered by this prospectus. This prospectus is a part of the registration
statement and does not contain all of the information in the registration
statement. Whenever a reference is made in this prospectus to a contract or
other document of Vail Resorts, Inc., please be aware that the reference is only
a summary and that you should refer to the exhibits that are a part of the
registration statement for a copy of the contract or other document. You may
review a copy of the registration statement at the SEC's public reference room
in Washington, D.C., as well as through the SEC's website.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The SEC's rules allow us to "incorporate by reference" information into this
prospectus. This means that we can disclose important information to you by
referring you to another document. Any information referred to in this way is
considered part of this prospectus from the date we file that document. Any
reports filed by us with the SEC under Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act after the date of the initial filing of the registration statement
of which this prospectus forms a part and prior to the effectiveness of such
registration statement, as well as any such reports filed by us with the SEC
after the date of this prospectus and before the date that the offering of the
common stock is terminated will automatically update and, where applicable,
supersede any information contained in this prospectus or incorporated by
reference in this prospectus.
We incorporate by reference into this prospectus the following documents filed
with the SEC:
o Our Annual Report on Form 10-K for the year ended July 31, 2004;
o Our Current Report on Form 8-K filed on October 25, 2004; and
o To the extent incorporated by reference into our Annual Report on Form
10-K, our proxy statement for our 2004 Annual Meeting of Stockholders
filed on November 19, 2004.
-19-
We will provide a copy of the documents we incorporate by reference, at no cost,
to any person who receives this prospectus, including any beneficial owner of
our common stock. To request a copy of any or all of these documents, you should
write or telephone us at the following address and telephone number:
Vail Resorts, Inc.
Post Office Box 7
Vail, Colorado 81658
Telephone: (970) 845-2500
Attention: Investor Relations
http://www.vailresorts.com
-20-
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following is a statement of estimated expenses, other than underwriting
discounts and commissions (all of which are estimated other than the SEC
registration fee), to be incurred by the Registrant in connection with the
distribution of the shares registered under this registration statement.
Estimated Amounts
-----------------
SEC Securities Act registration fee $5,148
Legal fees and Expenses $50,000
Accountant's fees and Expenses $10,000
Printing expenses $25,000
Miscellaneous $10,000
-----------------
Total $100,148
-----------------
Item 15. 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 Amended and 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 purchases and (iv)
for any 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 favor), 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.
II-1
Item 16. Exhibits.
5.1 Opinion of Cahill Gordon & Reindel LLP regarding the legality of the common
stock being registered
23.1 Consent of Independent Registered Public Accounting Firm
23.2 Consent of Cahill Gordon & Reindel LLP (contained in Exhibit 5.1)
Item 17. Undertakings.
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
Securities Act of 1933;
(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 the 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; and
(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;
provided, however, that paragraphs (1)(i) and (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 Securities Exchange Act of
1934 that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, 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.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the registrant's annual report
pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act
of 1934 (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Securities Exchange Act of
1934) 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.
(5) Insofar as indemnification for liabilities under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the provisions described in Item 15 above, 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,
II-2
unenforceable. In the event that a claim of 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 a
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 of 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
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant has
duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the City of New York, State of New
York, on the 2nd day of December, 2004.
VAIL RESORTS, INC.
By: /s/ JEFFREY W. JONES
---------------------------------
Name: Jeffrey W. Jones
Title: Senior Vice President and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this Registration
Statement has been signed by the following persons in the capacities and on the
dates indicated.
Signature Title Date
--------- ----- ----
/S/ADAM M. ARON Chairman of the Board, Chief Executive Officer December 2, 2004
--------------------------------- and Director (Principal Executive Officer)
Adam M. Aron
/S/JEFFREY W. JONES Senior Vice President and Chief Financial December 2, 2004
--------------------------------- Officer (Principal Financial and Accounting
Jeffrey W. Jones Officer)
/S/JOHN J. HANNAN* Director December 2, 2004
---------------------------------
John J. Hannan
/S/ROLAND A. HERNANDEZ* Director December 2, 2004
---------------------------------
Roland A. Hernandez
/S/ROBERT A. KATZ* Director December 2, 2004
---------------------------------
Robert A. Katz
/S/JOE R. MICHELETTO* Director December 2, 2004
---------------------------------
Joe R. Micheletto
/S/JOHN F. SORTE* Director December 2, 2004
---------------------------------
John F. Sorte
/S/WILLIAM P. STIRITZ* Director December 2, 2004
---------------------------------
William P. Stiritz
/S/ JEFFREY W. JONES Attorney-in-Fact December 2, 2004
---------------------------------
Jeffrey W. Jones
* By Attorney-in-Fact
II-4
Exhibit 5.1
[LETTERHEAD OF CAHILL GORDON & REINDEL LLP]
December 2, 2004
(212) 701-3000
Vail Resorts, Inc.
Post Office Box 7
Vail, Colorado 81658
Re: Vail Resorts, Inc.
Ladies and Gentlemen:
We have acted as counsel to Vail Resorts, Inc., a Delaware corporation (the
"Company"), in connection with the Form S-3 Registration Statement (the
"Registration Statement") filed by the Company with the Securities and Exchange
Commission (the "Commission") registering under the Securities Act of 1933, as
amended (the "Act"), 1,646,670 shares of the Company's common stock, par value
$0.01 per share (the "Common Stock"), to be sold by certain selling stockholders
(the "Shares").
In rendering the opinion set forth herein, we have examined originals,
photocopies or conformed copies certified to our satisfaction of all such
corporate records, agreements, instruments and documents of the Company,
certificates of public officials and other certificates and opinions, and we
have made such other investigations, as we have deemed necessary in connection
with the opinions set forth herein. In our examination, we have assumed the
genuineness of all signatures, the authenticity of all documents submitted to us
as originals and the conformity to originals of all documents submitted to us as
photocopies or conformed copies.
Based upon the foregoing, in our opinion the Shares are duly and validly
issued, fully paid and non-assessable.
In rendering the opinion set forth above, we express no opinion as to the
laws of any jurisdiction other than the General Corporation Law of the State of
Delaware, including the applicable provisions of the Delaware constitution and
the judicial decisions interpreting these laws, and the federal laws of the
United States of America.
We hereby consent to the use of our name under the caption "Validity of
Securities" in the prospectus included in the Registration Statement and to the
filing of a copy of this opinion with the Commission as an exhibit to the
Registration Statement. In giving such consent, we do not thereby admit that we
are in the category of persons whose consent is required under Section 7 of the
Act or the rules and regulations of the Commission thereunder.
Very truly yours,
/s/ CAHILL GORDON & REINDEL LLP
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the incorporation by reference in this Registration
Statement on Amendment No. 2 to Form S-3 of our report dated October 1, 2004
relating to the financial statements and financial statement schedule, which
appears in Vail Resorts, Inc.'s Annual Report on Form 10-K for the year ended
July 31, 2004. We also consent to the reference to us under the heading
"Experts" in such Registration Statement.
/s/ PricewaterhouseCoopers LLP
Denver, Colorado
December 2, 2004