exhibit10_1.htm


    
      

    

    Exhibit
10.1

    


    AGREEMENT

    


    This
Agreement ("Agreement") among The
Vail Corporation (d/b/a Vail Associates, Inc.) ("Vail"), William A.
Jensen ("Jensen") and
Intrawest ULC ("Intrawest") shall be
effective this 7th day of January, 2008 (the "Effective
Date").

     

    Recitals

    


    1.           Jensen
currently is employed as the President of Vail's Mountain Division and Chief
Operating Officer of Vail Mountain.  The terms and conditions of his
employment are set forth in an Employment Agreement dated as of May 1, 1997, and
amended on July 22, 1999, August 1, 1999 and July 19, 2007 (as amended, the
"Employment
Agreement").

     

    2.           Section
4 of the Employment Agreement sets forth certain restrictive covenants (the
"Restrictive
Covenants"), which impose certain limitations on Jensen's employment in
businesses that compete with the businesses of Vail Resorts, Inc. and its
subsidiaries (collectively, "Vail Entities," and
individually, each a "Vail Entity") and
solicitation of employees of any Vail Entity.

     

    3.           Intrawest
desires to employ Jensen in a senior executive capacity.

     

    4.           Vail
believes that the Restrictive Covenants would, if enforced as written, limit
Jensen's immediate availability for the position in which Intrawest wishes to
employ him, and Jensen's employment by Intrawest might violate other rights that
Vail has under applicable law.

     

    5.           In
consideration of certain commitments by Intrawest and Jensen set forth below,
Vail is willing to waive its right to assert that Jensen's employment by
Intrawest violates the Employment Agreement or any other contract or applicable
statute or common law principal that relates to, or is believed by any Vail
Entity to prohibit, Jensen's competition with any Vail Entity and/or the
solicitation or hiring of the employees of any Vail Entity following the
Resignation Date.

     

    6.           Although
Jensen and Intrawest disagree with Vail's position, in consideration of Vail's
willingness to waive such legal rights, Jensen and Intrawest are willing to
limit, on the terms and conditions set forth below, their right to recruit or
hire management and executive employees of the Vail Entities, and to confirm
Jensen's obligation not to use or disclose certain confidential information and
records belonging to Vail.

     

    Agreement

     

    In
consideration of the mutual rights and obligations set forth below, the parties
agree as follows:

     

    1.           Jensen Resignation and
Transition.

     

    (a)           As
of the close of business on January 31, 2008 (the "Resignation Date"),
Jensen shall be deemed to have resigned his employment and all other positions
that he holds with the Vail Entities and all other entities as a representative
of, or on behalf of, any of the Vail Entities.  Jensen agrees that
until the Resignation Date he shall continue to perform his duties faithfully
and in full accordance with the terms and conditions of the Employment Agreement
and all applicable policies and procedures.

     

    (b)           Notwithstanding
the preceding subsection 1(a), however, Vail and Jensen acknowledge and agree
that given the transitional nature of Jensen's employment, Vail may, between the
Effective Date and Resignation Date, deem it appropriate to exclude Jensen from
certain communications, activities, meetings and decisions.  Vail and
Jensen understand and agree that Jensen's resignation shall be deemed to be a
Termination By Jensen Without Good Reason pursuant to Section 3(e) of the
Employment Agreement, Vail having waived the notice requirement set forth
therein.  Accordingly, neither Jensen's exclusion from any aspect of
Vail's business operations between the Effective Date and Resignation Date nor
any other occurrence or conduct shall give rise to any right on the part of
Jensen to terminate his employment with Vail for "good reason" pursuant to
Section 3(d) of the Employment Agreement.  Under no circumstances
shall Jensen be deemed to be eligible for severance compensation payable by any
Vail Entity, or to any other benefit relating to or arising from Jensen's
separation from Vail, other than the compensation and benefits to which Jensen
is entitled under Section 3(e) of the Employment Agreement, which includes
compensation for accrued vacation time; fully vested stock options; and payment
of deferred compensation (but not any portion of deferred compensation for
2008).

     

    (c)           Jensen
agrees that Vail shall in its discretion determine when and how to announce, by
means of a securities disclosure, press release or otherwise, the fact and
circumstances of his resignation, provided that Vail shall notify Jensen of the
contents of any such announcement within a reasonable period of time before its
issuance, and consider in good faith all comments by Jensen regarding any such
issuance and, provided further, that no such issuance shall refer to or
otherwise mention any Intrawest Entity or any affiliate thereof without the
prior written consent of Intrawest, such consent not to be unreasonably
withheld.

     

    2.           Restrictions on
Competition.

     

    (a)           Jensen
and Intrawest agree that Jensen shall not, between the Effective Date and May
31, 2008 (the "Transitional Period")
provide services to or in any way discuss business matters with Intrawest,
Intrawest Cayman L.P. or any of their respective subsidiary or otherwise
affiliated companies (collectively, "Intrawest Entities,"
and individually, each an "Intrawest Entity"),
whether as a consultant, employee, director, or otherwise, and whether on a
compensated or non-compensated basis.  Following the Transitional
Period, and subject to the continuing obligations of Jensen and Intrawest under
this Agreement, Jensen may be involved in any capacity in the business of any
Intrawest Entity, and such involvement by Jensen in the business of any such
Intrawest Entity shall not be deemed a violation of Vail's legal rights under
any other contract or applicable statute or common law principal that relates
to, or is believed by any Vail Entity to prohibit, Jensen's competition with any
Vail Entity and/or, subject to Section 3 hereof, the solicitation or hiring of
the employees of any Vail Entity following the Resignation Date.

     

    (b)           Jensen
understands and agrees that Vail is willing to conditionally waive certain of
its rights under the Restrictive Covenants and applicable law only with respect
to Jensen's prospective employment by Intrawest, and has agreed to do so only in
consideration of the covenants and conditions set forth in this
Agreement.  Accordingly, during the 12 month period commencing on the
Resignation Date Jensen shall continue to be bound by the Restrictive Covenants
with respect to all prospective employers other than an Intrawest Entity, or any
affiliate of any Intrawest Entity, and with respect to all business activities
except those relating to the Intrawest Entities and their respective affiliates
and undertaken in conformity with the terms and conditions of this
Agreement.

     

    3.           Noninterference with
Management and Employees of Vail Entities.

     

    (a)           For
purposes of this Section 3(a) “Covered Vail Executive” shall mean any person who
was employed by any Vail Entity at grade 26 or above (as described in Exhibit A
attached hereto) at any time during the 6 month period before such person first
had any form of contact with any Intrawest Entity concerning employment by or
consulting with any Intrawest Entity.  Jensen and Intrawest agree that
during the 24 month period commencing on the Resignation Date (the "Restricted
Period"), neither Jensen nor any Intrawest Entity shall, without Vail's prior
consent, directly or indirectly induce or attempt to induce any Covered Vail
Executive to terminate his or her employment relationship with such Vail Entity;
or hire or attempt to hire any Covered Vail Executive, whether as an employee,
consultant or otherwise.

     

    (b)           Notwithstanding
Section 3(a), above, any Intrawest Entity may publish to the public, in any
medium (e.g., on the internet, in trade publications, general circulation
newspapers), its hiring needs and such publication by itself will not be deemed
a violation of Section 3(a).  The parties further agree
that,  if a Covered Vail Executive terminates his or her relationship
with a Vail Entity of his/her own volition (i.e. without direct or indirect
inducement or other involvement of any kind by Jensen or any Intrawest Entity in
violation of the terms of this Agreement) or is discharged by a Vail Entity, and
such person contacts Jensen or an Intrawest Entity during the 6 month period
following the effective date of the termination of his/her relationship with the
Vail Entity (the ”Departure
Period"), then Jensen and Intrawest agree that such person will be
informed that Intrawest is prohibited from discussing employment opportunities
with him or her during the Departure Period.  However, any Intrawest
Entity may, after the Departure Period, discuss employment with or hire such a
person without violating this Section 3(a).  Intrawest will endeavor
in good faith to disseminate the restrictions in this paragraph 3(a) to its
executives and those persons involved in hiring with any Intrawest Entity, but
the parties acknowledge that the Intrawest Entity is a large organization and
two years is a long time and, thus, if someone at some Intrawest Entity merely
responds to an inquiry regarding employment by a Covered Vail Executive without
informing them in the initial conversation about the restrictions contained in
this Section 3(a), then Intrawest will not be deemed to have violated this
Section 3(a) so long as the Covered Vail Executive is ultimately informed of the
restrictions in this Section 3(a) and is not hired by any Intrawest
Entity.

     

    (c)           Intrawest
and Jensen acknowledge that the restrictions set forth in this Section 3 are
fair and reasonable, given the nature of the respective businesses of the Vail
Entities and the Intrawest Entities.

     

    4.           Protection of Confidential
Information and Confidential Records.

     

    (a)           For
purposes of this Agreement:

     

    (i)           "Confidential
Information" means all nonpublic information  (whether in paper
or electronic form, or contained in Jensen's memory, or otherwise stored or
recorded) relating to or arising from the business of any Vail Entity,
including, without limitation, trade secrets used, developed or acquired by any
Vail Entity in connection with its business.  Without limiting the
generality of the foregoing, "Confidential Information" shall specifically
include all nonpublic information concerning the manner and details of the
operation of the Vail Entities, organization and management; financial
information and/or documents and nonpublic policies, procedures and other
printed, written or electronic material generated or used in connection with the
business of the Vail Entities; the business plans and strategies of the Vail
Entities; nonpublic forms, contracts and other documents used in the business of
the Vail Entities; all information concerning the employees, agents and
contractors of the Vail Entities, including without limitation such persons'
compensation, benefits, skills, abilities, experience, knowledge and
shortcomings, if any; and all other information concerning the concepts,
prospects, customers, employees, agents, contractors, earnings, products,
services, equipment, systems, and/or prospective and executed contracts and
other business arrangements of the Vail Entities.  "Confidential
Information" shall not include information that is in the public domain through
no wrongful act on the part of Jensen.

     

    (ii)           "Confidential Records"
means all documents and other records, whether in paper, electronic or other
form, that contain or reflect any Confidential Information.

     

    (b)           Except
in connection with and in furtherance of Jensen's work on Vail's behalf before
the Resignation Date or with Vail's prior written consent, Jensen shall not and
Jensen hereby affirms that at no time prior to the date hereof did he, at any
time, directly or indirectly:  (i) use any Confidential Information
for any purpose; or (ii) disclose or otherwise communicate any Confidential
Information to any person or entity.

     

    (c)           All
Confidential Records prepared by or provided to Jensen are and shall remain
Vail's property.  Except in connection with and in furtherance of
Jensen's work on Vail's behalf before the Resignation Date or with Vail's prior
written consent, Jensen shall not, at any time, directly or indirectly: (i) copy
or use any Confidential Record for any purpose; or (ii) show, give, sell,
disclose or otherwise communicate any Confidential Record or the contents of any
Confidential Record to any person or entity.  No later than the Resignation
Date, or upon Vail's earlier request, Jensen shall immediately deliver to Vail
or its designee (and shall not keep in Jensen's possession or deliver to any
other person or entity) all Confidential Records and all other Vail property in
Jensen's possession or control.  This Agreement shall not prohibit
Jensen from complying with any subpoena or court order, provided that Jensen
shall at the earliest practicable date provide a copy of the subpoena or court
order to Vail's General Counsel, it being the parties' intention to give Vail a
fair opportunity to take appropriate steps to prevent the unnecessary and/or
improper use or disclosure of Confidential Information and Confidential Records,
as determined by Vail in its discretion.

     

    5.           Remedies.  Jensen
and Intrawest acknowledge that if they or either of them breaches any obligation
under Sections 2, 3 and/or 4 of this Agreement, Vail will suffer immediate and
irreparable harm and damage for which money alone cannot fully compensate
Vail.  Jensen and Intrawest therefore agree that upon such breach or
threatened breach of any such obligation, Vail shall be entitled to a temporary
restraining order, preliminary injunction, permanent injunction or other
injunctive relief, without posting any bond or other security, compelling
compliance with any or all such provisions.  This Section 5 shall not
be construed as an election of any remedy, or as a waiver of any right available
to Vail under this Agreement or the law, including the right to seek damages
from Jensen and/or Intrawest for a breach of any provision of this Agreement,
nor shall this Section 5 be construed to limit the rights or remedies available
under applicable law for any violation of any Section 2, 3 and/or 4 of this
Agreement.

     

    6.           Legal
Releases.

     

    (a)           Jensen,
on behalf of himself and his heirs, personal representatives and assigns, and
any other person or entity that could or might act on behalf of him
(collectively, "Releasers"), hereby
fully and forever releases and discharges each Vail Entity and each of their
past and present officers, directors, employees, shareholders, independent
contractors, attorneys, insurers and any and all other persons or entities that
are now or may become liable to any Releaser due to any Releasee's act or
omission relating to or arising from Jensen's employment by Vail and/or the
termination of that employment (collectively, "Releasees"), of and
from any and all actions, causes of action, claims, demands, costs and expenses,
including attorneys' fees, of every kind and nature whatsoever, in law or in
equity, whether now known or unknown, that Releasers, or any person acting under
any of them, may now have, or claim at any future time to have, based in whole
or in part upon any act or omission occurring on or before the Effective Date,
without regard to present actual knowledge of such acts or omissions, including
specifically, but not by way of limitation, matters that may arise at common
law, such as breach of contract, express or implied, promissory estoppel,
wrongful discharge, tortious interference with contractual rights, infliction of
emotional distress, defamation, or under federal, state or local laws, such as
the Fair Labor Standards Act, the Employee Retirement Income Security Act, the
National Labor Relations Act, Title VII of the Civil Rights Act of 1964, the Age
Discrimination in Employment Act, the Rehabilitation Act of 1973, the Equal Pay
Act, the Americans with Disabilities Act, the Family and Medical Leave Act, and
any civil rights law of any state or other governmental body; PROVIDED, HOWEVER, that
notwithstanding the foregoing or anything else contained in this Agreement, the
release set forth in this Section 6(a) shall not extend to:  (i) any
rights arising under this Agreement; or; (ii) any vested rights under any
pension, retirement, profit sharing or similar plan; or (iii) Jensen's rights,
if any, to indemnification, and/or defense under any Vail Entity's certificate
of incorporation, bylaw and/or policy or procedure, or under any insurance
contract, in connection with Jensen's acts an omissions within the course and
scope of Jensen's employment with Vail.  Jensen hereby warrants that
he has not assigned or transferred to any person any portion of any claim which
is released, waived and discharged above.  Jensen understands and
agrees that by signing this Agreement he is giving up, among other things, any
right to bring any legal claim against any Vail Entity concerning, directly or
indirectly, Jensen's employment with Vail, including Jensen's separation from
employment except as specifically provided otherwise in this
Agreement.  Jensen agrees that this legal release is intended to be
interpreted in the broadest possible manner in favor of Releasees, to include
all actual or potential legal claims that Jensen may have against any Releasee,
except as specifically provided otherwise in this Agreement. Jensen, on behalf
of all Releasers, hereby covenants and agrees that no Releasor shall bring any
claim or suit of any nature whatsoever that is released by this Section
6(a).

     

    (b)           Vail,
on behalf of itself and its affiliates and their respective successors and
assigns (collectively, "Vail Releasers"),
hereby fully and forever releases and discharges each Intrawest Entity, each
affiliate of each Intrawest Entity and each of their respective past and present
officers, directors, employees, shareholders, independent contractors, attorneys
and insurers (collectively, "Intrawest Releasees")
due to any Intrawest Releasee's act or omission relating to or arising from
Jensen's employment by Vail, the Employment Agreement and/or the termination of
that employment hereby, of and from any and all actions, causes of action,
claims, demands, costs and expenses, including attorneys' fees, of every kind
and nature whatsoever, in law or in equity, whether now known or unknown, that
Vail Releasers, or any person acting under any of them, may now have, or claim
at any future time to have, based in whole or in part upon any act or omission
occurring on or before the Effective Date, without regard to present actual
knowledge of such acts or omissions, including specifically, but not by way of
limitation, matters that may arise at common law, such as tortuous interference
with contractual rights; provided, however, that notwithstanding the foregoing
or anything else contained in this Agreement, the release set forth in this
Section 6(b) shall not extend to any rights arising under this
Agreement.  Vail agrees that this legal release is intended to be
interpreted in the broadest possible manner in favor of Intrawest Releasees, to
include all actual or potential legal claims that the Vail Releasors may have
against any Intrawest Releasee, except as specifically provided otherwise in
this Agreement.  Vail, on behalf of itself and each Vail Releasor,
hereby covenants and agrees that it and them shall not bring any claim or suit
of any nature whatsoever, including specifically, but not by way of limitation,
matters that may arise at common law, such as tortuous interference with
contractual rights, against any Intrawest Releasee arising from or relating to
Jensen's employment by Vail, the Employment Agreement and/or the termination of
that employment hereby.   Vail, on behalf of itself and each Vail
Releasor, hereby covenants and agrees that no Vail Releasor shall bring any
claim or suit of any nature whatsoever that is released by this Section
6(b).

     

    (c)           The
Vail Releasors hereby fully and forever release and discharge Jensen and his
heirs, personal representatives and assigns, and any person or entity that could
or might act on behalf of him (collectively the "Jensen Releasees")
due to any act or omission relating to or arising from Jensen's employment with
Vail and from any and all actions, causes of action, claims, demands, costs and
expenses, including attorneys' fees, of every kind and nature whatsoever, in law
or in equity, whether now known or unknown, that Vail Releasors or any person
acting under any of them, may now have, or claim at any future time to have,
based in whole or in part upon any act or omission occurring on or before the
Effective Date, without regard to present actual knowledge of such acts or
omissions; provided, however, that notwithstanding the foregoing or anything
else contained in this Agreement, the relief set forth in this Section 6(c)
shall not extend to (i) any rights arising under this Agreement; (ii) a breach
of fiduciary duty or other intentional misconduct by Jensen relating to Jensen’s
employment with Vail; or (iii) any claim or claims that Vail may have against
any Jensen Releasee as of the Effective Date of which it is not aware as of the
Effective Date because of intentional concealment by Jensen.  Vail
agrees that this legal release is intended to be interpreted in the broadest
possible manner in favor of the Jensen Releasees, to include all actual or
potential legal claims of the Vail Releasors may have against any Jensen
Releasee, except as specifically provided otherwise in this
Agreement.  Vail, on behalf of itself and each Vail Releasor, hereby
covenants and agrees that no Vail Releasor shall bring any claim or suit of any
nature whatsoever that is released by this Section 6(c).

     

    7.           Covenant of Cooperation in
Proceedings.  Jensen acknowledges that because of Jensen's
position with Vail, Jensen may possess information that may be relevant to or
discoverable in connection with claims, litigation or judicial, arbitral or
investigative proceedings initiated by a private party or by a regulator,
governmental entity, or self-regulatory organization, that relates to or arises
from matters with which Jensen was involved during Jensen's employment with
Vail, or that otherwise concern matters of which Jensen has information or
knowledge (collectively, a "Proceeding").  Jensen
agrees that he will testify truthfully in connection with any such Proceeding,
that he will cooperate with the Vail Entities in connection with every such
Proceeding, and that his duty of cooperation shall include an obligation to meet
with representatives and/or counsel for Vail Entities concerning all such
Proceedings for such purposes, and at such times and places, as Vail reasonably
requests, and to appear for deposition and/or testimony upon Vail's request and
without a subpoena.  Vail shall reimburse Jensen for reasonable
out-of-pocket expenses that he incurs in honoring his obligation of cooperation
under this Section 7 and shall cooperate with Jensen to minimize the impact that
compliance with this Section 7 has on his ability to meet his other personal and
professional obligations.

     

    8.           Miscellaneous.

     

    (a)           The
Resignation Date herein shall be deemed to be the "termination date" as that and
similar terms are used in the Employment Agreement and any and all other
agreements between any Vail Entity and Jensen.

     

    (b)           This
Agreement shall inure to the benefit of Vail, its successors or assigns, and
shall be freely assignable by Vail in its sole discretion, at any
time.

     

    (c)           This
Agreement shall be governed by the internal laws of the State of Colorado,
irrespective of the choice of law rules of any jurisdiction.

     

    (d)           Unless
modified herein, all provisions of the Employment Agreement and any and all
other agreements between any Vail Entity and Jensen which remain in effect by
their terms following the Resignation Date shall continue in full force and
effect.  In the event of any direct conflict between any term of this
Agreement and the Employment Agreement or any term of any other agreement
between the parties hereto, the terms of this Agreement shall
control.

     

    (e)           If
any court of competent jurisdiction declares any provision of this Agreement
invalid or unenforceable, the remainder of this Agreement shall remain fully
enforceable.  To the extent that any court concludes that any
provision of this Agreement is void or voidable, the court shall reform such
provision(s) to render the provision(s) enforceable, but only to the extent
absolutely necessary to render the provision(s) enforceable and only in view of
the parties' express desire that Vail be protected to the greatest extent
allowed by law from unfair competition or interference and/or the misuse or
disclosure of Confidential Records and/or Confidential Information.

     

    (f)           This
Agreement shall not be modified or amended except by a written agreement signed
by all parties hereto.

     

    (g)           Any
action arising from or relating in any way to this Agreement shall be tried only
in the state or federal courts situated in the Denver, Colorado, metropolitan
area.  The parties consent to jurisdiction and venue in those courts
to the greatest extent allowed by law.  The party that substantially
prevails in any action to enforce any provision of this Agreement shall recover
all costs incurred in connection with the action, including reasonable
attorneys' fees.

     

    


     

    [Signature
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              The
      Vail Corporation (d/b/a Vail Associates,
      Inc.)

               

              By:
      _/s/ Robert A.
      Katz______________

               

              Chief
      Executive Officer

               

            	
              Intrawest
      ULC

               

              By:
      _/s/ Toby
      Ippolito________________

               

               

            
	
              William
      A. Jensen

               

              __/s/ William A.
      Jensen______________