Exhibit 10.64
REGISTRATION RIGHTS AGREEMENT
by and between
AMERICAN SKIING COMPANY
and
XXXXX X. XXXXXX
Dated as of January 23, 1998
TABLE OF CONTENTS
1. DEFINITIONS ..........................................................1
2. REGISTRATION UNDER THE SECURITIES ACT ................................3
2.1 Registration ....................................................3
2.2 Effective Period ................................................4
2.3 Expenses ........................................................5
2.4 No Underwritten Offerings .......................................5
3. REGISTRATION PROCEDURES ..............................................5
3.1 Obligations of the Company ......................................5
3.2 Selling Information .............................................9
3.3 Notice to Discontinue ...........................................9
4. INDEMNIFICATION: CONTRIBUTION ........................................9
4.1 Indemnification by the Company ..................................9
4.2 Indemnification by Holders ......................................10
4.3 Conduct of Indemnification Proceedings ..........................10
4.4 Contribution ....................................................11
4.5 Other Indemnification ...........................................12
4.6 Indemnification Payments ........................................12
5. GENERAL ..............................................................12
5.1 Adjustments Affecting Registrable Securities ....................12
5.2 Amendments and Waivers ..........................................12
5.3 Notices .........................................................13
5.4 Successors and Assigns ..........................................13
5.5 Counterparts ....................................................14
5.6 Descriptive Headings, Etc........................................14
5.7 Severability ....................................................14
5.8 Governing Law ...................................................14
5.9 Entire Agreement ................................................15
5.10 Nominees for Beneficial Owners ..................................15
5.11 Further Assurances ..............................................15
Registration Rights Agreement (this or the "Agreement") dated as of
December ___, 1997, by American Skiing Company, a Maine corporation (the
"Company") and Xxxxx X. Xxxxxx (the "Initial Holder").
WITNESSETH:
WHEREAS, the Company and the Initial Holder entered into a Securities
Purchase Agreement, of even date herewith (the "Purchase Agreement") pursuant
to which the Company issued, and the Initial Holder purchased, 140,000 shares
of Common Stock, $.01 Par Value, of the Company; and
WHEREAS, in order to induce the Holder to enter into the Purchase
Agreement, the Company agreed to provide certain registration rights on the
terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements contained herein, and for other good and valuable consideration
the receipt and sufficiency of which is hereby acknowledged, and intending to
be legally bound hereby, the parties hereto hereby agree as follows:
1. DEFINITIONS.
"Affiliate" shall mean with respect to any specified Person, any other
Person directly or indirectly controlling or controlled by or under direct or
indirect common control with such Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or
otherwise; provided, however, that beneficial ownership of 10% or more of the
voting securities of a Person shall be deemed to be control.
"Business Day" shall mean any day except a Saturday, a Sunday or a day on
which banking institutions in New York, New York generally are required or
authorized by law or other government action to be closed.
"Common Stock" shall mean the class of Common Stock, par value $.01 per
share, of the Company.
"Company" shall have the meaning set forth in the preamble.
"Exchange Act" means the Securities Exchange act of 1934, as amended from
time to time, and the rules and regulations thereunder, or any similar or
successor statute.
"Holders" shall mean the Initial Holder for so long as it owns any
Registrable Securities and such of its respective heirs, successors and
permitted assigns (including any permitted
transferees of Registrable securities) who acquire or are otherwise the
transferee of Registrable Securities, directly or indirectly, form such
Initial Holder (or any subsequent Holder), for so long as such heirs,
successors and permitted assigns own any Registrable Securities.
"Holders' Counsel" shall mean one firm of counsel (per Registration) to
the Holders of Registrable Securities participating in such Registration,
which counsel shall be selected by the Majority Holders of the Registration.
"Initial Holder" shall mean Xxxxx X. Xxxxxx.
"Inspectors" shall have the meaning set forth in Section 4.1(g).
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint-stock company, trust, unincorporated organization
or government or agency or political subdivision thereof (including any
subdivisions or ongoing business of any such entity or substantially all of
the assets of any such entity, subdivision or business) and shall include any
successor (by merger or otherwise) of such entity.
"Prospectus" shall mean the prospectus included in a Registration
Statement (including, without limitation, any preliminary prospectus and any
prospectus that includes any information previously omitted from a prospectus
filed as part of an effective registration statement in reliance upon Rule
430A promulgated under the Securities Act), and any such Prospectus as
amended or supplemented by any prospectus supplement, and all other
amendments and supplements to such Prospectus, including post-effective
amendments, and in each case including all material incorporated by reference
(or deemed to be incorporated by reference) therein.
"Purchase Agreement" shall have the meaning set forth in the preamble.
"Registration Securities" shall mean (i) the 140,000 shares of Common
Stock issued pursuant to the Purchase Agreement, and (ii) any other
securities of the Company (or any successor or assign of the Company, whether
by merger, consolidation, sale of assets or otherwise) which may be issued or
issuable with respect to, in exchange for, or in substitution of, Registrable
Securities referenced in clause (i) above by reason of any dividend or stock
split, combination of shares, merger, consolidation, recapitalization,
reclassification, reorganization, sale of assets or similar transaction. As
to any particular Registrable Securities, such securities shall cease to be
Registrable Securities when (A) a registration statement with respect to the
sale of such securities shall have been declared effective under the
Securities Act and such securities shall have been disposed of in accordance
with such registration statement, (B) such securities are sold pursuant to
Rule 144 (or any similar provisions then in force) under the Securities Act,
(C) such securities have been otherwise transferred, a new certificate or
other evidence of ownership for them not bearing a legend restricting further
transfer shall have been delivered by the Company and subsequent public
distribution of them shall not require registration under the
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Securities Act, (D) such securities shall have ceased to be outstanding or
(E) such securities are freely tradable under the Securities Act.
"Registration" shall mean a registration required to be effected by the
Company pursuant to Section 2.1.
"Registration Statement" shall mean a registration statement of the
Company which covers the Registrable Securities included therein pursuant to
the provisions of Section 2.1 and all amendments and supplements to such
registration statement, including post-effective amendments, in each case
including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference (or deemed to be incorporated by
reference) therein.
"SEC" shall mean the Securities and Exchange Commission, or any successor
agency having jurisdiction to enforce the Securities Act.
"Securities Act" shall mean the Securities Act of 1933, as amended from
time to time, and the rules and regulations thereunder, or any similar or
successor statute.
"Shelf Registration" shall have the meaning set forth in Section 2.1(a)
"Transfer Agent" shall mean Boston EquiServe.
2. REGISTRATION UNDER THE SECURITIES ACT
2.1 Registration
(a) The Company shall cause the registration of all of the
Registrable Securities in accordance with the provision of Section 2.1(b)
hereof, and use its best efforts to cause such Registration to become
effective at the time set forth in Section 2.1(b) below.
(b) The Company shall, as expeditiously as possible following the date
hereof, cause to be filed with the SEC a Registration Statement
providing for the registration under the Securities Act of the
Registrable Securities to the extent necessary to permit the disposition
of such Registrable Securities so to be registered by means of a shelf
registration pursuant to Rule 415 under the Securities Act. The Company
shall cause such Registration Statement to be declared effective by the
SEC as soon as practicable thereafter and shall use its best efforts to
keep such Registration Statement continuously effective of a period of
twelve (12) months following the effective date of such Registration
statement, plus any Delay Period.
The Holder of Registrable Securities shall furnish to the Company in
writing, within 10 business days after receipt of a request therefor,
such information concerning such Holder or its intended method of
disposition as the Company may reasonably request for use in connection
with the Registration Statement or Prospectus or preliminary Prospectus
included therein. Each Holder as to which any Registration
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Statement is being effected agrees to furnish promptly to the Company all
information requested to be disclosed in order to make the information
previously furnished to the Company by such Holder not materially
misleading.
(c) Registration of Other Securities. Whenever the Company shall
effect a Registration, no securities other than the Registrable Securities
(and the Common Stock issued to the holders of 4% of the common stock of
ASC East, Inc., in exchange therefor by the Company) shall be covered by
such registration unless the Holder of the Registration shall have
consented in writing to the inclusion of such other securities.
(d) Effective Registration Statement: Suspension. The Company shall
use its best efforts to keep the Registration Statement effective in
compliance with the provisions of the Securities Act with respect to the
disposition of all Registrable Securities covered by such Registration
Statement for a period of twelve (12) months following the Effective Date
of the Registration, plus a period of time equal to any Delay Period,
provided that the Company may suspend the effective of the Registration
Statement, in the event that, and for a period not to exceed sixty (60)
days in any calendar year (a "Blackout Period") if, (i) an event occurs
and is continuing as a result of which the Registration Statement would,
in the Company's good faith judgment, contain an untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein not misleading and (ii) the Company
determines in good faith that (a) the disclosure of such event at such
time would have a material adverse effect on the business, operations or
prospects of the Company or (b) the disclosure otherwise relates to a
pending material business transaction which has not yet been public
disclosed. If (i) the offering of any Registrable Securities pursuant to
such Registration Statement is interfered with by any stop order,
injunction or other order or requirement of the SEC or any other
governmental agency or court, or (ii) a Blackout Period shall occur,
then the period of time from the occurrence of any of the events
described in (i), (ii) or (iii) until such event is no longer continuing
shall constitute a "Delay Period".
(f) Registration Statement Form. Registrations under this Section
2.1 shall be on registration form S-1 of the SEC. The Company shall
include in any such Registration Statement, in addition to such
information as the Company may desire, all additional information which
the selling Holder, upon advice of counsel, shall reasonably request.
2.2 Effective Period
Subject to its limited right to impose a Blackout Period, the
Company shall use its best efforts to keep the Registration continuously
effective through the date on which all of the Registrable Securities covered
by such Registration may be sold pursuant to Rule 144(k) under the Securities
Act (or any successors provision have similar effect); provided, however,
that prior to the termination of such Registration, the Company shall first
furnish to each Holder of Registrable Securities participating in such
Registration (i) an opinion, in form and substance reasonably satisfactory to
the Holder of the Registration, of general counsel for such the Company
stating that such Registrable Securities are freely salable pursuant to Rule
144(k) under
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the Securities Act (or any successor provision having similar effect) or (ii)
a "No-Action Letter" from the staff of the SEC stating that the SEC would not
recommend enforcement action if the Registrable Securities included in such
Registration were sold in a public sale other than pursuant to an effective
registration statement.
2.3 EXPENSES. The Company shall pay all of its registration expenses in
connection with the Registration, whether or not such registration shall
become effective and whether or not all Registrable Securities originally
requested to be included in such registration are withdrawn or otherwise
ultimately not included in such Registration.
2.4 NO UNDERWRITTEN OFFERINGS. The Company shall have no obligation to
provide, and the parties do not intend or contemplate, any underwritten
offering in conjunction with the Registration.
3. REGISTRATION PROCEDURES.
3.1 OBLIGATIONS OF THE COMPANY. In connection with the Registration, the
Company shall, as expeditiously as possible:
(a) prepare and file with the SEC (promptly, and in any event within the
time period set forth in Section 2.1(b) hereof) the requisite
Registration Statement to effect such Registration, which Registration
Statement shall comply as to form in all material respects with the
requirements of the applicable form and include all financial statements
required by the SEC to be filed therewith, and the Company shall use its
best efforts to cause such Registration Statement to become effective
(provided, that the Company may discontinue any Registration of its
securities that are not Registrable Securities, and, under the
circumstances specified in Section 2.1(e), its securities that are
Registrable Securities); provided, however, that before filing a
Registration Statement or Prospectus or any amendments or supplements
thereto, or comparable statements under the securities or blue sky laws of
any jurisdiction, the Company shall (i) provide Holders' Counsel and any
other Inspector with an adequate and appropriate opportunity to
participate in the preparation of such Registration Statement and each
Prospectus included therein (and each amendment or supplement thereto or
comparable statement) to be filed with the SEC, which documents shall be
subject to the review and reasonable comment of Holders' Counsel, and
(ii) not file any such Registration Statement or Prospectus (or amendment
or supplement thereto or comparable statement) with the SEC to which
Holders' Counsel, any selling Holder or any other Inspector shall have
reasonably objected on the grounds that such filing does not comply in
all material respects with the requirements of the Securities Act or with
the rules or regulations thereunder;
(b) prepare and file with the SEC such amendments and supplements to such
Registration Statement and the Prospectus used in connection therewith as
may be necessary (i) to keep such Registration Statement effective
(provided, that the Company
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may discontinue any registration of its securities that are not Registrable
Securities, and, under the circumstances specified in Section 2.1(e), its
securities that are Registrable Securities, and (ii) to comply with the
provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by such Registration Statement, each ease
until such time as all of such Registrable Securities shall have been
disposed of in accordance with the intended methods of disposition by the
seller(s) thereof set forth in such Registration Statement; and provided,
that such period need not extend beyond the time period provided in Section
2.2, and which periods, in any event, shall terminate when all Registrable
Securities covered by such Registration Statement have been sold;
(c) Furnish, without charge, to the Holder or the securities covered by
such Registration Statement, such number of copies of such Registration
Statement, each amendment and supplement thereto (in each case including all
exhibits), and the Prospectus included in such Registration Statement
(including each preliminary Prospectus in conformity with the requirements of
the Securities Act, and other documents, as such selling Holder may
reasonably request in order to facilitate the disposition of the Registrable
Securities owned by such selling Holder (the Company hereby consenting to the
use in accordance with applicable law of each such Registration Statement (or
amendment or post-effective amendment thereto) and each such Prospectus (or
preliminary prospectus or supplement thereto) by selling Holder;
(d) prior to any public sale of Registrable Securities, use its best
efforts to register or qualify all Registrable Securities and other
securities covered by such Registration Statement under such other securities
or blue sky laws of such jurisdictions as any selling Holder of Registrable
Securities covered by such Registration Statement may reasonably request to
enable such selling Holder to consummate the disposition in such
jurisdictions of the Registrable securities owned by such selling Holder to
consummate the disposition in such jurisdictions of the Registrable
Securities owned by such selling Holder and to continue such Registration or
qualification in effect in each such jurisdiction for as long as such
Registration Statement remains in effect (including through new filings or
amendments or renewals), and do any and all other acts and things which may
be necessary or advisable to enable any such selling Holder to consummate the
disposition in such jurisdiction of the Registrable Securities owned by such
selling Holder; provided, however that the Company shall not be required to
(i) qualify generally to do business in any jurisdiction where it would not
otherwise be required to qualify but for this Section 3.1(d), (ii) subject
itself to taxation in any such jurisdiction, or (iii) consent to general
service of process in any such jurisdiction;
(e) use its best efforts to obtain all other approvals, consents,
exemptions or authorizations from such governmental agencies or authorities
as may be necessary to enable to selling Holders of such Registrable
Securities to consummate the disposition of such Registrable Securities;
(f) promptly notify Holders' Counsel, each Holder of Registrable
Securities covered by such Registration Statement and the sole or leading
managing Underwriter, if
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any: (i) when the Registration Statement, and pre-effective amendment, the
Prospectus or any prospectus supplement related thereto or post-effective
amendments to the Registration Statement has been filed and, with respect to
the Registration Statement or any post-effective amendment, when the same has
become effective, (ii) of any request by the SEC or any state securities or
blue sky authority for amendments or supplements to the Registration
Statement or the Prospectus related thereto or for additional information,
(iii) of the issuance by the SEC or any stop order suspending the
effectiveness of the Registration Statement or the initiation or threat of
any proceedings for that purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of any
Registrable Securities for sale under the securities or blue sky laws of any
jurisdiction or the initiation of any proceeding for such purpose, (v) of the
existence of any fact of which the Company becomes aware or the happening of
any event which results in (A) the Registration Statement containing an
untrue statement of a material fact or omitting to state a material fact
required to be stated therein or necessary to make any statements therein not
misleading, or (B) the Prospectus included in such Registration Statement
containing an untrue statement of a material fact or omitting to state a
material fact required to be stated therein or necessary to make any
statements therein, in the light of the circumstances under which they were
made, not misleading, (vi) if at any time the representations and warranties
contemplated by Section 2.4(b) cease to be true and correct in all material
respects, and (viii) of the Company's reasonable determination that a
post-effective amendment to a Registration Statement would be appropriate or
that there exits circumstances not yet disclosed to the public which make
further sales under such Registration Statement inadvisable pending such
disclosure and post-effective amendment; and, if the notification relates to
an event described in any of the clauses (ii) through (vii) of this Section
3.1(f) the Company shall promptly prepare a supplement or post-effective
amendment to such Registration Statement or related Prospectus or any
document incorporated therein by reference or file any other required
document so that (1) such Registration Statement shall not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading,
and (2) as thereafter delivered to the purchasers of the Registrable
Securities being sold thereunder, such Prospectus shall not include an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein in the light of
the circumstances under which they were made not misleading (and shall
furnish to each such Holder a reasonable number of copies of such Prospectus
so supplemented or amended); and if the notification relates to an event
described in clause (iii) of this Section 3.1(f), the Company shall take all
reasonable action required to prevent the entry of such stop order or to
remove it if entered;
(g) make available for inspection by any selling Holder of Registrable
Securities Holders' Counsel and any attorney, accountant or other agent
retained by Holder (each, an "inspector" and, collectively, the
"Inspectors"), all financial and other records, pertinent corporate documents
and properties of the Company and any subsidiaries thereof as may be in
existence at such time (collectively, the "Records") as shall be necessary, in
the opinion of such Holder's counsel, to enable them to exercise their due
7
diligence responsibility and to conduct a reasonable investigation within the
meaning of the Securities Act, and cause the Company's and any of its
subsidiaries' officers, directors and employees, and the independent public
accountants of the Company, to supply all information reasonably requested by
any such Inspectors in connection with such Registration Statement.
(h) obtain an opinion from the Company's general counsel and "cold
comfort" letter from the Company's independent public accountants who have
certified such Company's financial statements included or incorporated by
reference in such Registration Statement, in each case dated the effective
date of such Registration Statement in customary form and covering such
matters as are customarily covered by such opinions and "cold comfort"
letters delivered to underwriters in underwritten public offerings, which
opinion and letter shall be reasonably satisfactory to the Holder of the
Registration, and furnish to each Holder participating in the offering a copy
of such opinion and letter addressed to such Holder (in the case of the
opinion);
(i) provided a CUSIP number for all Registrable Securities and provide
and cause to be maintained a transfer agent and registrar for all such
Registrable Securities covered by such Registration Statement not later than
the effectiveness of such registration statement;
(j) otherwise use its best efforts to comply with all applicable rules
and regulations of the SEC and any other governmental agency or authority
having jurisdiction over the Registration.
(k) if so requested by the Holder use its best efforts to cause all
Common Shares constituting such Registrable Securities to be listed on the
national securities exchange on which the Company's securities are then
listed;
(l) keep such selling Holder of Registrable Securities advised as to the
initiation and progress of any registration under Section 2 hereunder;
(m) enter into and perform customary agreements (including, if
applicable, an underwriting agreement in customary form) and provide
officers' certificates and other customary closing documents;
(n) cooperate with the Holder participating in the disposition of such
Registrable Securities and their respective counsel in connection with any
filings required to be made with the NASD and make reasonably available its
employees and personnel and otherwise provide reasonable assistance to the
Holder;
(o) furnish to the Holder without charge, at least one manually-signed
copy of the Registration Statement and any post-effective amendments thereto,
including financial statement and schedules, all documents incorporated
therein by reference and all exhibits (including those deemed to be
incorporated by reference);
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(p) cooperate with the Holder to facilitate the timely preparation and
delivery of certificates not bearing any restrictive legends representing the
Registrable Securities; and
(q) use its best efforts to take all other steps necessary to expedite
or facilitate the registration and disposition of the Registrable Securities
contemplated hereby.
3.2 SELLING INFORMATION. The Company may require the Holder of Registrable
Securities as to which any Registration is being effect to furnish to it such
information regarding such Holder, such Holder's Registrable Securities and
such Holder's intended method of disposition as the Company may from time to
time reasonably request in writing; provided that such information shall be
used only in connection with the Registration.
If any Registration Statement or comparable statement under "blue sky"
laws refers to any Holder by name or otherwise as the Holder of any
Securities of the Company, then such Holder shall have the right to require
(i) the insertion therein of language, in form and substance satisfactory to
such Holder and the Company, to the effect that the holding by such Holder of
such securities is not to be construed as a recommendation by such Holder of
the investment quality of the Company's securities covered thereby and that
such holder does not imply that such Holder will assist in metering any
future financial requirements of the Company, and (ii) in the event that such
reference to such Holder by name or otherwise is not in the judgment of the
Company, as advised by counsel, required by the Securities Act or any similar
federal statute or any state "blue sky" or securities law then in force, the
deletion of the reference to such Holder.
3.3 NOTICE TO DISCONTINUE. Each Holder of Registrable Securities agrees by
acquisition of such Registrable Securities that, upon receipt of any notice
from the Company of the happening of any event of the kind described in
Section 3.1(f)(ii) through (vii), such Holder shall forthwith discontinue
disposition of Registrable Securities pursuant to the Registration Statement
covering such Registrable Securities until such Holder's receipt of the
copies of the supplemented or amended prospectus contemplated by Section
3.1(f) and, if so directed by the Company, such Holder shall deliver to the
Company (at Company's expense) all copies, other than permanent file copies,
then in such Holder's possession of the Prospectus covering such Registrable
Securities which is current at the time of receipt of such notice. If the
Company shall give any such notice, the Company shall extend the period
during which such Registration Statement shall be maintained effective
pursuant to this Agreement (including, without limitation, the period referred
to in Section 3.1(b) by the number of days during the period from and
including the date of the giving of such notice pursuant to Section 3.1(f) to
and including the date when the Holder shall have received the copies of the
supplemented or amended prospectus contemplated by meeting the requirements
of Section 3.1(f).
4. INDEMNIFICATION: CONTRIBUTION
4.1 INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify and
hold harmless, to the fullest extent permitted by law, each Holder of
Registrable Securities, its
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officers, directors, partners, members, shareholders, employees, Affiliates
and agents (collectively "Agents") and each Person who controls such Holder
(within the meaning of the Securities Act) and its Agents with respect to
each registration which has been effected pursuant to Section 2 of this
Agreement, against any and all losses, claims, damages or liabilities, joint
or several, actions or proceedings (whether commenced or threatened) in
respect thereof, and expenses (as incurred or suffered and including, but not
limited to, any and all expenses incurred in investigating, preparing or
defending any litigation or proceeding, whether commenced or threatened) in
respect thereof, and expense (as incurred or suffered and including, but no
limited to, any and all expenses incurred in investigating, preparing or
defending any litigation or proceeding, whether commenced or threatened, and
the reasonable fees, disbursements and other charges of legal counsel) in
respect thereof (collectively, "Claims"), insofar as such claims arise out of
or are based upon any untrue or alleged untrue statement of a material fact
contained in any registration Statement or Prospectus (including any
preliminary, final or summary prospectus and any amendment or supplement
thereto) related to any such registration or any omission or alleged omission
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading, or any violation by the Company of the
Securities Act or any rule or regulation thereunder applicable to the Company
and relating to action or inaction required by the Company in connection with
any such registration, or any qualification or compliance incident thereto;
provided, however, that the Company will not be liable in any such case to
the extent that any such Claims arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact or omission or
alleged omission of a material fact so made in reliance upon and in
conformity with written information furnished to the Company in an instrument
duly executed by such Holder specifically stating that it was expressly for
use therein.
4.2 INDEMNIFICATION BY HOLDERS. Each Holder, if Registrable Securities
held by it are included in the securities as to which a registration is being
effected, agrees to, severally and not jointly, indemnify and hold harmless,
to the fullest extent permitted by law, the Company, its directors and
officers, and each Person who controls the Company and its Agents against
any and all claims, insofar as such Claims arise out of or are based upon any
untrue statement or alleged untrue statement of a material fact contained in
any Registration Statement or Prospectus (including any preliminary, final or
summary prospectus and any amendment or supplement material fact required to
be stated therein or necessary to make the statements therein not misleading,
to the extent, but only to the extent, that such untrue statement or alleged
untrue statement or omission or alleged omission was made in reliance upon
and in conformity with written information furnished to the Company in an
instrument duly executed by such Holder specifically stating that it was
expressly for use therein; provided, however, that the aggregate amount which
any such Holder shall be required to pay pursuant to this Section 4.2 shall
in no event be greater than the amount of the net proceeds received by such
holder upon the sale of the Registrable Securities pursuant to the
Registration Statement giving rise to such Claims less all amounts previously
paid by such Holder with respect to any such Claims. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of such indemnified party and shall survive the transfer of such
securities by such Holder.
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4.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS. Promptly after receipt by an
indemnified party of notice of any Claim or the commencement of any action or
proceeding involving a claim under this Section 4, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party pursuant to Section 5, (i) notify the indemnifying party in writing of
the Claim or the commencement of such action or proceeding; provide, that the
failure of any indemnified party to provide such notice shall not relieve the
indemnifying party of its obligations under this Section 4, except to the
extent the indemnifying party is materially and actually prejudiced thereby
and shall not relieve the indemnifying party from any liability which it may
have to any indemnified party otherwise than under this Section 4, and (ii)
permit such indemnifying party to assume the defense of such claim with
counsel reasonably satisfactory to the indemnified party; provided, however
that any indemnified party shall have the right to employ separate counsel
and to participate in the defense of such claim, but the fees and expenses of
such counsel shall be at the expense of such indemnified party unless (A) the
indemnifying party has agreed in writing to pay such fees and expenses, (B)
the indemnifying party shall have failed to assume the defense of such claim
and employ counsel reasonably satisfactory to such indemnified party within
10 days after receiving notice from such indemnified party that the
indemnified party believes it has failed to do so, (C) in the reasonable
judgment of any such indemnified party, based upon advise of counsel, a
conflict of interest may exist between such indemnified party and the
indemnifying party with respect to such claims (in which case, if the
indemnified party notifies the indemnifying party in writing that it elects
to employ separate counsel at the expense of the indemnifying party, the
indemnifying party shall not have the right to assume the defense of such
claim on behalf of such indemnified party) or (D) such indemnified party is a
defendant in an action or proceeding which is also brought against the
indemnifying party and reasonably shall have concluded that there may be one
or more legal defenses available to such indemnified party which are not
available to the indemnifying party. No indemnifying party shall be liable
for any settlement of any such claim or action effected without its written
consent, which consent shall not be unreasonably withheld. In addition,
without the consent of the indemnified party (which consent shall not be
unreasonably withheld), no indemnifying party shall be permitted to consent
to entry of any judgment with respect to, or to effect the settlement or
compromise of any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim),
unless such settlement, compromise or judgment (1) includes an unconditional
release of the indemnified party from all liability arising out of such
action or claim, (2) does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of any indemnified
party, and (3) does not provide for any action on the part of any party other
than the payment of money damages which is to be paid in full by the
indemnifying party.
4.4 CONTRIBUTION. If the indemnification provided for in Section 4.1 or
4.2 from the indemnifying party for any reason is unavailable (other than by
reason of exceptions provided therein), or is insufficient to hold harmless,
an indemnified party hereunder in respect of any Claim, then the indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to
the amount paid or payable by such indemnified party as a result of such
Claim in such proportion as is appropriate to reflect the relative fault of
the indemnifying party, on the one hand, and the indemnified party, on the
other hand, in connection with the actions which resulted
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in such Claim, as well as any other relevant equitable considerations. The
relative fault of such indemnifying party and indemnified party shall be
determined by reference to, among other things, whether any action in
question, including any untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact, has been made by,
or relates to information supplied by, such indemnifying party or indemnified
party, and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such action. If, however, the foregoing
allocation is not permitted by applicable law, then each indemnifying party
shall contribute to the amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only the relative faults
but also the relative benefits of the indemnifying party and the indemnified
party as well as any other relevant equitable considerations.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 4.4 were determined by pro rata
allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by party as a result of any
Claim referred to in the immediately preceding paragraph shall be deemed to
include, subject to the limitations set forth in Section 4.3, any legal or
other fees, costs or expenses reasonably incurred by such party in connection
with any investigation or proceeding. Notwithstanding anything in this
Section 4.4 to the contrary, no indemnifying party (other than the Company)
shall be required pursuant to this Section 4.4 to contribute any amount in
excess of the net proceeds received by such indemnifying party from the sale
of the Registrable Securities pursuant to the Registration Statement giving
rise to such Claims, less all amounts previously paid by such indemnifying
party with respect to such Claims. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
4.5 OTHER INDEMNIFICATION. Indemnification similar to that specified
in the preceding Sections 4.1 and 4.2 (with appropriate modifications) shall
be given by the Company and each selling Holder of Registrable Securities with
respect to any required registration or other qualification of securities
under any Federal or state law or regulation of any governmental authority,
other than the Securities Act. The indemnity agreements contained herein
shall be in addition to any other rights to indemnification or contribution
which any indemnified party may have pursuant to law or contract.
4.6 INDEMNIFICATION PAYMENTS. The indemnification and contribution
required by this Section 4 shall be made by periodic payments of the amount
thereof during the course of any investigation or defense, as and when bills
are received or any expense, loss, damage or liability is incurred.
5. GENERAL
5.1 ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company agrees
that it shall not effect or permit to occur any combination or subdivision of
shares which would adversely
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affect in any material respects the ability of the Holder of any Registrable
Securities to include such Registrable Securities in any such registration.
5.2 AMENDMENTS AND WAIVERS. The provisions of this Agreement may not
be amended, modified, supplemented or terminated in any material respect, and
waivers or consents to departures from the provisions hereof may not be
given, without the written consent of the Company and the Holders of not less
than 50% of the Registrable Securities then outstanding; provided, however,
that no such amendments, modifications, supplement, waiver or consent to
departure shall reduce the aforesaid percentage of Registrable Securities
without written consent of all of the holders of Registrable securities; and
provided further, that nothing herein shall prohibit any amendment,
modification, supplement, termination, waiver or consent to departure the
effect of which is limited only to those Holders who have agreed to such
amendment, modification, supplement, termination, waiver or consent to
departure.
5.3 NOTICES. All notices and other communications provided for or
permitted hereunder shall be made in writing by hand delivery, telecopier,
any courier guaranteeing overnight delivery or first class registered or
certified mail, return receipt requested, postage prepaid, addressed to the
applicable party at the address set forth below or such other address as may
hereafter be designated in writing by such party to the other parties in
accordance with the provisions of this Section:
(i) If to the Company, to:
American Skiing Company
Sunday River Xxxxxx Xxxx
X.X. Xxx 000
Xxxxxx, Xxxxx 00000
Attn: Xxxxxxxxxxx X. Xxxxxx
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
(ii) If to the Holders, to:
Xxxxx Xxxxxx
c/o Xxxxxxx Xxxxxx
Xxxxxx Corporation
X.X. Xxx 000
(iii) If to any subsequent Holder, to the address of such Person set
forth in the records of the Company.
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; when receipt
is acknowledged, if telecopies; on the next business day, if timely delivered
to a courier guaranteeing overnight delivering and five days after being
deposited in the mail, if sent first class or certified mail, return receipt
requested postage prepaid.
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5.4 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs, successor
and permitted assigns (including any permitted transferee of the Registrable
Securities). Any Holder may assign to any permitted (as determined under the
Purchase Agreement transferee of its Registrable Securities (other than a
transferee that acquired such Registrable Securities in a registered public
offering or pursuant to a sale under Rule 144 of the Securities Act (or any
successor rule)), its rights and obligations under this Agreement; provided,
however, if any permitted transferee shall take and hold Registrable
Securities, such transferee shall promptly notify the Company and, by taking
and holder such Registrable Securities, such permitted transferee shall
automatically be entitled to receive the benefits of and be conclusively
deemed to have agreed to be bound by and to perform all of the terms and
provisions of this Agreement as if it were a party hereto (and shall, for all
purposes, be deemed a Holder under this Agreement). If the company shall so
request, any heir, successor or permitted assign (including any permitted
transferee) shall agree in writing to acquire and holder the Registrable
securities subject to all of the terms hereof. For purposes of this
Agreement, "successor" for any entity other than a natural person shall mean
a successor to such entity as a result of such entities merger,
consolidation, liquidation, dissolution, sale of substantially all of its
assets, or similar transaction. Except as provided above or otherwise
permitted by this Agreement, neither this Agreement nor any right, remedy,
obligation or liability arising hereunder or by reason hereof shall be
assignable by any party hereto without the consent of the other parties.
5.5 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which, when so executed and delivered, shall be deemed
to be an original, but all of such counterparts, taken together, shall
continue one and the same instrument.
5.6 DESCRIPTIVE HEADINGS, ETC. The headings in this Agreement are for
conveyance of reference only and shall not limit or otherwise affect the
meaning of terms contained herein. Unless the context of this Agreement
otherwise requires: (1) words of any gender shall be deemed to include each
other gender; (2) words using the singular or plural number shall also
include the plural or singular number, respectively; (3) the words "hereof",
"herein" and "hereunder" and words of similar import when used in this
Agreement shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and Section and paragraph references are to the
Sections and paragraphs of this Agreement unless otherwise specified; (4) the
word "including" and words of similar import when used in this Agreement
shall mean "including, without limitation," unless otherwise specified; (5)
"or" is not exclusive; and (6) provisions apply to successive events and
transactions.
5.7 SEVERABILITY. In the event that any one or more of the provisions,
paragraphs, words, clauses, phrases or sentences contained herein, or the
application thereof in any circumstances, is held invalid, illegal or
unenforceable in any respect for any reason, the validity, legality and
enforceability of any such provision, paragraph, word, clause, phrase or
sentence in every other respect and of the other remaining provisions,
paragraphs, words, clauses, phrases or sentences hereof shall not be in any
way impaired, it being intended that all rights, powers and privileges of the
parties hereto shall be enforceable to the fullest extent permitted by law.
14
5.8 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of Maine (without giving effect to the
conflict of laws principles thereof).
5.9 ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final expression of their agreement and intended to be a complete and
exclusive statement of the Agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no restrictions,
promises or undertakings, other than those set forth or referred to herein.
This Agreement supersedes all prior agreements and understandings among the
Company and the other parties to this Agreement with respect to such subject
matter.
5.10 NOMINEES FOR BENEFICIAL OWNERS. In the event that any Registrable
Securities are held by a nominee for the beneficial owner thereof, the
beneficial owner thereof may, at its election in writing deliver to the
Company (on behalf of the Company), be treated as the holder, of such
Registrable Securities for purposes of any request or other action by any
holder or holders of Registrable Securities pursuant to this Agreement or any
determination of any number of percentage of shares of Registrable Securities
held by any holder or holders of Registrable Securities contemplated by this
Agreement. If the beneficial owner of any Registrable Securities so elects,
the Company may require assurances reasonably satisfactory to it of such
owner's beneficial ownership of such Registrable Securities.
5.11 FURTHER ASSURANCES. Each party hereto shall do and perform or cause
to be done and performed all such further acts and things and shall execute
and deliver all such other agreements, certificates, instruments and
documents as any other party hereto reasonably may request in order to carry
out the intent and accomplish the purposes of this Agreement and the
consummation of the transactions contemplated hereby.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
AMERICAN SKIING COMPANY
By: /s/ Xxxxxxxxxxx X. Xxxxxx /s/ Xxxxx X. Xxxxxx
-------------------------------- --------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx Xxxxx X. Xxxxxx
Title: Chief Administrative
Officer
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