Exhibit 3
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this
"Agreement") is made and entered into as of November 10,
1997 by and between AMERICAN SKIING COMPANY, a Maine
corporation ("Company") and ING (U.S.) CAPITAL CORPORATION,
a Delaware corporation (together with its permitted
successors and assigns hereunder, "Holder"), which has
agreed to take as security for certain loans made to Xx.
Xxxxxx X. Xxxxx ("Xxxxx"), the President and Chief Executive
Officer of Company, pursuant to a Credit Agreement dated as
of November 10, 1997 between Holder and Xxxxx (the "Credit
Agreement"), certain shares of Company's common stock, par
value $.01, and Class A Common Stock, par value $0.01, owned
by Xxxxx and delivered to Holder from time to time pursuant
to the Pledge Agreement (hereinafter defined) (collectively,
together with any securities into which such shares may be
converted, the "Registrable Securities").
This Agreement is made pursuant to the Credit
Agreement. In order to induce Holder to extend credit to
Xxxxx secured by the Registrable Securities, Company has
agreed to provide the registration rights set forth in this
Agreement.
The parties hereby agree as follows:
1. Definitions.
"Affiliate" of any specified Person means any other
Person directly or indirectly controlling or controlled by
or under direct or indirect common control with such
specified 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.
"Agreement" has the meaning assigned to that term
in the preamble.
"Business Day" means any day other than a Saturday,
a Sunday or a day on which banking institutions in the City
of New York, Borough of Manhattan are not required to be
open.
"Commission" has the meaning assigned to that term
in Section 2(c).
"Company" has the meaning assigned to that term in
the preamble.
"Credit Agreement" has the meaning assigned to that
term in the preamble.
"Event of Default" has the meaning assigned to such
term in the Credit Agreement.
"Exchange Act" has the meaning assigned to that
term in Section 2(e).
"Inspectors" has the meaning assigned to that term
in Section 2(c).
"Person" means any corporation, individual, joint-
stock company, joint venture, partnership, unincorporated
association, governmental regulatory entity, country, state
or political subdivision thereof, trust, municipality or
other entity.
"Pledge Agreement" means that certain Pledge
Agreement dated as of November 10, 1997 between Xxxxx and
Holder, as the same may from time to time be amended,
modified or supplemented and in effect.
"Priority Securities" has the meaning assigned to
that term in Section 2(a).
"Registration Expenses" means any and all expenses
incident to performance of or compliance with this
Agreement, including without limitation: (i) all Commission,
stock exchange, or National Association of Securities
Dealers, Inc. registration and filings fees, (ii) all fees
and expenses incurred in connection with compliance with
state securities or blue sky laws (including reasonable fees
and disbursements of counsel for any underwriters in
connection with blue sky qualifications of any of the
Registrable Securities), (iii) all expenses of any Persons
in preparing or assisting in preparing, word processing,
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printing and distributing the registration statement
relating to any of the Registrable Securities, any
underwriting agreements and other documents relating to the
performance of and compliance with this Agreement, (iv) all
fees and expenses incurred in connection with the listing,
if any, of any of the Registrable Securities on any
securities exchange or exchanges pursuant to Section
2(c)(vii) hereof, (v) all rating agency fees, (vi) the fees
and disbursements of counsel for Company and of Company's
independent public accountants, including the expenses of
any special audits or "cold comfort" letters required by or
incident to such performance and compliance, (vii) the
reasonable fees and disbursements of one law firm reasonably
acceptable to Company retained by Holder in connection with
the registration statement relating to any of the
Registrable Securities and (viii) any fees and disbursements
of any underwriters customarily paid by issuers or sellers
of securities and the reasonable fees and expenses of any
special experts retained in connection with the registration
statement relating to any of the Registrable Securities, but
excluding underwriting discounts and commissions and
transfer taxes, if any.
"Registrable Securities" has the meaning assigned
to that term in the preamble.
"Securities Act" has the meaning assigned to that
term in Section 2.
"Shares" has the meaning assigned to that term in
Section 2(b).
"Holder" has the meaning assigned to that term in
the preamble.
2. Registration Rights.
Holder shall have the right to have all Registrable
Securities at any time pledged to it pursuant to the Pledge
Agreement registered under the Securities Act of 1933, as
amended (the "Securities Act") and applicable United States
state securities laws on up to three occasions in accordance
with the following provisions.
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(a) Registration on Request.
(i) At any time and from time to time after
the occurrence of an Event of Default, upon the written
request of Holder, Holder may request that Company effect
the registration under the Securities Act for an
underwritten public offering of all or part of the
Registrable Securities held by Holder; provided, however,
that in the event that such Event of Default is cured
in accordance with the provisions of the Credit Agreement
prior to the taking of any action by Holder to sell or
otherwise dispose of all or any part of the Registrable
Securities, then Holder shall not have the right to request
the registration of all or part of the Registrable Securities
under this Section 2(a) unless and until the occurrence of a
subsequent Event of Default. Subject to the provisions of
this Section 2, Company will use its best efforts to cause the
prompt registration under the Securities Act of the
Registrable Securities, and in connection therewith, subject
to subsection 2(a)(ii) hereof, will prepare and file on such
appropriate form as Company in its reasonable discretion shall
determine a registration statement under the Securities Act to
effect such registration.
Notwithstanding the foregoing, Company will not be
required to file a registration statement in any of the
following situations:
(1) during any period of time (not to exceed
ninety (90) days in the aggregate with respect to each
request) when Company has determined to proceed with a public
offering and, in the judgment of the managing underwriter
thereof, the requested filing would have an adverse effect on
the public offering;
(2) during any period of time (not to exceed
sixty (60) days with respect to each request) when Company is
in possession of material non-public information that it deems
is in its best interest not to disclose publicly;
(3) during any period of time (not to exceed
sixty (60) days with respect to each request) when Company is
engaged in any program for the repurchase of Shares, unless
the repurchase program and the requested registration may
proceed concurrently pursuant to an exemption under Regulation
M under the United States Securities Exchange Act of 1934; or
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(4) during the 180-day period following the
effectiveness of any previous registration statement filed at
the request of Holder or otherwise (including without
limitation the registration statement filed by the Company on
Form S-1 (No. 333-33483) or filed by the Company under the
Amended and Restated Registration Rights Agreement, dated as
of November 3, 1997, by and between the Company and Xxxxxxxxx
L.L.C. (the "Xxxxxxxxx Agreement")).
Notwithstanding the foregoing, the aggregate period
of time during which Company will be relieved of the
requirement to file a registration statement pursuant to
clauses (1) through (4) above will in no event exceed one
hundred and eighty (180) consecutive days with respect to
each request.
Holder may, at any time prior to the effective date
of the registration statement relating to such registration,
revoke such request, without liability to Company or any other
Person, by providing a written notice to Company revoking such
request.
(ii) Number of Registrations: Expenses. Company
shall not be obligated to effect more than one registration in
any 180-day period of Registrable Securities pursuant to
requests from Holder under this Section 2(a). Company shall
pay all Registration Expenses in connection with the first
three registrations that Holder requests pursuant to this
Section 2(a). Holder shall pay all Registration Expenses in
connection with later registrations pro rata according to the
number of Registrable Securities it registered pursuant to
such registration. However, in connection with each such
registration, Holder shall pay all underwriting discounts and
commissions and transfer taxes, if any, relating to the sale
or disposition of its Registrable Securities pursuant to this
Section 2(a).
(iii) Effective Registration Statement. A
registration requested pursuant to this Section 2(a) shall not
be deemed to have been effected unless the registration
statement relating thereto (A) has become effective under the
Securities Act and any of the Registrable Securities included
in such registration have actually been sold thereunder and
(B) has remained effective for a period of at least 180 days
(or such shorter period in which all Registrable Securities of
Holder and, if applicable, Company included in such
registration have actually been sold thereunder); provided,
however, that if any effective
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registration statement requested pursuant to this
Section 2(a) is not carried out by reason of any of the four
situations noted in Section 2(a)(i) above under which
Company will not be required to file or may delay filing a
registration statement under this Section 2(a)(i), such
registration statement shall not be included as one of the
registrations for which Company will pay expenses pursuant
to this Section 2(a) hereof; provided, further, that if
after any registration statement requested pursuant to this
Section 2(a) becomes effective such registration statement
is subject to a stop order, injunction or other order or
requirement of the Commission or other governmental agency
or court solely due to the actions or omissions to act of
Company, such registration statement shall not be included
as one of the registrations for which Company will pay
expenses pursuant to Section 2(a)(ii).
(iv) Selection of Underwriters. Holder shall
have the right to select the investment banker and manager
or co-managers that will administer the offering; provided,
however, that such selection shall be subject to approval by
Company, which approval shall not be unreasonably withheld;
provided further, that Company shall have the right to
appoint a co-manager in all cases.
(v) Pro Rata Participation in Requested
Registrations. If a requested registration pursuant to this
Section 2(a) involves an underwritten offering and the
managing underwriter advises the Company in writing that, in
its view, the number of equity securities requested to be
included in such registration exceeds the largest number of
securities which can be sold without having an adverse
effect on such offering, including the price at which such
securities can be sold, the number of Registrable Securities
requested to be registered by Holder in such registration
shall be reduced; provided, however, that:
(A) if the Company intends to issue Shares
and to include them in such registration,
the Holder's allocation will be subject
to reduction prior to any reduction in
the amount of the Shares proposed to be
issued by the Company;
(B) Holder may elect not to sell any
Registrable Securities pursuant to the
registration statement; and
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(C) if such registration includes less than
fifty percent (50%) of the Registrable
Securities requested to be included
therein by Holder, then such registration
shall not be included as one of the
registrations for which Company is
required to pay for expenses pursuant to
Section 2(a)(ii).
(b) Incidental Registration.
(i) If Company at any time following the
occurrence of an Event of Default proposes to register any
of its shares of Common Stock ("Shares") or any options,
warrants or other rights to acquire, or securities
convertible into or exchangeable for Shares (the "Priority
Securities") under the Securities Act (other than a
registration, (A) relating to shares issuable upon exercise
of employee share options or in connection with any employee
benefit or similar plan of Company, (B) in connection with
an acquisition by Company of another company, or (C)
pursuant to the Xxxxxxxxx Agreement) in a manner which would
permit registration of Registrable Securities for sale to
the public under the Securities Act (whether or not for sale
for its own account), it shall each such time give prompt
written notice to Holder of its intention to do so and of
Holder's rights under this Section 2(b), at least 30
calendar days prior to the anticipated filing date of the
registration statement relating to such registration. Such
notice shall offer Holder the opportunity to include in such
registration statement such number of Registrable Securities
as Holder may request. Upon the written request of Holder
made within 20 calendar days after the receipt of Company's
notice (which request shall specify the number of
Registrable Securities intended to be disposed of by Holder
and the intended method of disposition thereof), Company
will use its best efforts to effect the registration under
the Securities Act of all Registrable Securities that
Company has been so requested to register by Holder;
provided, however, that (A) if such registration involves an
underwritten offering, Holder must sell its Registrable
Securities to the underwriters selected by Company on the
same terms and conditions as apply to Company, and (B) if,
at any time after giving written notice pursuant to this
Section 2(b)(i) of its intention to register any Priority
Securities and prior to the effective date of the
registration statement filed in connection with such
registration, Company shall determine for any reason not to
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register such Priority Securities, Company shall give
written notice to Holder and shall thereupon be relieved of
its obligation to register any Registrable Securities in
connection with such registration. If a registration
pursuant to this Section 2(b) involves an underwritten
public offering, Holder may elect, in writing prior to the
effective date of the registration statement filed in
connection with such registration, not to register such
Registrable Securities in connection with such registration.
Company shall pay all Registration Expenses in connection
with each registration of Registrable Securities requested
pursuant to this Section 2(b). However, Holder shall pay
all underwriting discounts and commissions and transfer
taxes, if any, relating to the sale or disposition of its
Registrable Securities pursuant to a registration statement
effected pursuant to this Section 2(b). Notwithstanding the
foregoing, in the event that such Event of Default giving
rise to the registration rights under this Section 2(b) is
cured in accordance with the provisions of the Credit
Agreement prior to the taking of any action by Holder to
sell or otherwise dispose of all or any part of the
Registrable Securities, then Holder shall not have the right
to request the registration of all or part of the
Registrable Securities under this Section 2(b) (a) unless
and until the occurrence of a subsequent Event of Default.
(ii) Priority in Incidental Registrations. If
a registration pursuant to this Section 2(b) involves an
underwritten offering and the managing underwriter advises
Company in writing that, in its good faith view, the number
of equity securities (including all Registrable Securities)
that Company and Holder intend to include in such
registration exceeds the largest number of securities that
can be sold without having an adverse effect on such
offering, including the price at which such Registrable
Securities can be sold, Company will include in such
registration (A) first, all the Priority Securities to be
sold for Company's own account; and (B) second, to the
extent that the number of Priority Securities is less than
the number of Registrable Securities that the underwriter
has advised Company can be sold in such offering without
having the adverse effect referred to above, as many
Registrable Securities as are requested to be included in
such registration by Holder pursuant to Section 2(b)(i)
hereof.
(iii) If Company at any time proposes to effect
a public offering in a jurisdiction other than the United
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States of any of its Shares or any options, warrants or
other rights to acquire, or securities convertible into or
exchangeable for Shares (other than a public offering,
(A) relating to shares issuable upon exercise of employee
share options or in connection with any employee benefit or
similar plan of Company or (B) in connection with an
acquisition by Company of another company) Company and
Holder will have the rights and be subject to the
obligations agreed in this Section 2(b) to the extent and
where applicable.
(c) Holdback Agreements.
(i) If any registration of Registrable
Securities shall be in connection with an underwritten
public offering, Holder agrees not to effect any sale or
distribution, including any private placement or any sale
pursuant to Rule 144A (or any successor provision) or
otherwise or any sale pursuant to Rule 144 (or any successor
provision), under the Securities Act, of any Registrable
Securities, other than by pro-rata distribution to its
shareholders, partners or other beneficial holders, and not
to effect any such sale or distribution of any other equity
security of Company or of any security convertible into or
exchangeable or exercisable for any equity security of
Company (in each case, other than as part of such
underwritten public offering) during the ten calendar days
prior to, and during the 180 calendar day period (or such
lesser period as may be agreed upon between such holders and
the managing underwriter of such offering) that begins on
the effective date of such registration statement (except as
part of such registration), without the consent of the
managing underwriter of such offering; provided, however,
that Holder has received written notice of such registration
at least two Business Days prior to the anticipated
beginning of the ten calendar day period referred to above.
(ii) If any registration of Registrable
Securities shall be in connection with an underwritten
public offering, Company agrees (A) not to effect any public
sale or distribution of any of its equity securities or of
any security convertible into or exchangeable or exercisable
for any equity security of Company (other than any such sale
or distribution of such securities in connection with any
merger or consolidation by Company or any Affiliate of
Company or the acquisition by Company or an Affiliate of
Company of the shares or substantially all the assets of any
other Person or in connection with an employee stock
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ownership or other benefit plan) during the ten days prior
to, and during the 180-day period (or such lesser period as
may be agreed upon between such holders and the managing
underwriter of such offering) which begins on, the effective
date of such registration statement (except as part of such
registration), and (B) that any agreement entered into after
the date hereof pursuant to which Company issues or agrees
to issue any privately placed equity securities shall
contain a provision under which the holders of such
securities agree not to effect any public sale or
distribution of any such securities during the period and in
the manner referred to in the foregoing clause (A),
including a private placement pursuant to Rule 144A under
the Securities Act (or any successor provision) or otherwise
and any sale pursuant to Rule 144 under the Securities Act
(except as part of such registration, if permitted).
(d) Registration Procedures. In connection with
any offering of Registrable Securities registered pursuant
to this Section 2, Company shall:
(i) Prepare and file with the Securities and
Exchange Commission (the "Commission") within 60 calendar
days after receipt of a request for registration, a
registration statement on any form for which Company then
qualifies or which counsel for Company shall deem
appropriate, and which form shall be available for the sale
of the Registrable Securities in accordance with the
intended methods of distribution thereof, and use its best
efforts to cause such registration statement to become and
remain effective as provided herein, provided that before
filing with the Commission a registration statement or
prospectus or any amendments or supplements thereto, Company
will (A) furnish to one counsel selected by Holder copies of
all such documents proposed to be filed for said counsel's
review and comment, and (B) notify Holder of any stop order
issued or threatened by the Commission and take all
reasonable actions required to prevent the entry of such
stop order or to remove it if entered.
(ii) Prepare and file with the Commission such
amendments and supplements to such registration statement
and the prospectus used in connection therewith as may be
necessary to keep such registration statement effective for
a period of not less than 180 days or such shorter period
that will terminate when all Registrable Securities covered
by such registration statement have been sold (but not
before the expiration of the time periods referred to in
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Section 4(3) of the Securities Act and Rule 174, or any
successor thereto, if applicable), and comply with the
provisions of the Securities Act with respect to the
disposition of all securities covered by such registration
statement during such period in accordance with the intended
methods of disposition by the sellers thereof set forth in
such registration statement.
(iii) Furnish to Holder and each underwriter,
if any, of Registrable 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 thereto), and
the prospectus included in such registration statement
(including each preliminary prospectus), in conformity with
the requirements of the Securities Act, and such other
documents as Holder may reasonably request in order to
facilitate the disposition of the Registrable Securities
owned by Holder.
(iv) Use its best efforts to register or
qualify such Registrable Securities under such other state
securities or "blue sky" laws of such jurisdictions as
Holder, and each underwriter, if any, of Registrable
Securities covered by such registration statement reasonably
requests and do any and all other acts and things that may
be reasonably necessary or advisable to enable Holder and
each underwriter, if any, to consummate the disposition in
such jurisdictions of the Registrable Securities owned by
Holder; provided that Company will not be required to
(A) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for
this clause (iv), (B) subject itself to taxation or
regulation of its business in any such jurisdiction other
than Bermuda, or (C) consent to general service of process
in any such jurisdiction.
(v) Use its best efforts to cause the
Registrable Securities covered by such registration
statement to be registered with or approved by such other
governmental agencies or authorities as may be necessary by
virtue of the business and operations of Company to enable
Holder to consummate the disposition of such Registrable
Securities.
(vi) Immediately notify Holder at any time
when a prospectus relating thereto is required to be
delivered under the Securities Act of the happening of any
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event that comes to Company's attention if as a result of
such event the prospectus included in such registration
statement contains an untrue statement of a material fact or
omits to state any material fact required to be stated
therein or necessary to make the statements therein not
misleading; and Company will promptly prepare and furnish to
Holder a supplement or amendment to such prospectus so that,
as thereafter delivered to the purchasers of such
Registrable Securities, such prospectus will not contain an
untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading.
(vii) Use its best efforts to cause all such
Registrable Securities to be listed on a national securities
exchange in the United States or NASDAQ and on each
securities exchange on which similar securities issued by
Company may then be listed, and enter into such customary
agreements including a listing application and
indemnification agreement in customary form, and to provide
a transfer agent and registrar for such Registrable
Securities covered by such registration statement no later
than the effective date of such registration statement.
(viii) Enter into such customary agreements
(including an underwriting agreement or qualified
independent underwriting agreement, in each case, in
customary form) and take all such other actions as Holder or
the underwriters retained by Holder, if any, reasonably
request in order to expedite or facilitate the disposition
of such Registrable Securities, including customary
representations, warranties, indemnities and agreements.
(ix) Make available for inspection, during
business hours of Company, by Holder, any underwriter
participating in any disposition pursuant to such
registration statement, and any attorney, accountant or
other agent retained by Holder or any such underwriter
(collectively, the "Inspectors"), all financial and other
records, pertinent corporate documents and properties of
Company and its subsidiaries, if any, as shall be reasonably
necessary to enable them to exercise their due diligence
responsibility, and cause Company's officers, directors and
employees, and those of Company's affiliates, if any, to
supply all information and respond to all inquiries
reasonably requested by any such Inspector in connection
with such registration statement.
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(x) Use its best efforts to obtain a "cold
comfort" letter from Company's appointed auditors in
customary form and covering such matters of the type
customarily covered by "cold comfort" letters as Holder
reasonably requests.
(xi) Otherwise use its best efforts to comply
with all applicable rules and regulations of the Commission,
and make available to Holder, as soon as reasonably
practicable, an earnings statement covering a period of at
least twelve months beginning after the effective date of
the registration statement (as the term "effective date" is
defined in Rule 158(c) under the Securities Act) which
earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 thereunder.
It shall be a condition precedent to the obligation
of Company to take any action with respect to any
Registrable Securities that Holder shall furnish to Company
such information regarding the Registrable Securities and
any other Shares in Company held by Holder and the intended
method of disposition of the Registrable Securities held by
Holder as Company shall reasonably request and as shall be
required in connection with the action taken by Company.
Holder agrees that, upon receipt of any notice from
Company of the happening of any event of the kind described
in Section 2(d)(vi) hereof, Holder will forthwith
discontinue disposition of Registrable Securities until
Holder's receipt of the copies of the supplemented or
amended prospectus contemplated by Section 2(d)(vi) hereof,
and, if so directed by Company Holder will deliver to
Company (at Company's expense) all copies (including,
without limitation, any and all drafts), other than
permanent file copies, then in Holder's possession, of the
prospectus covering such Registrable Securities current at
the time of receipt of such notice. In the event that
Company shall give any such notice, the period mentioned in
Section 2(d)(ii) hereof shall be extended by the greater of
(A) three months or (B) the number of days during the period
from and including the date of the giving of such notice
pursuant to Section 2(d)(vi) hereof to and including the
date when Holder shall have received the copies of the
supplemented or amended prospectus contemplated by Section
2(d)(vi) hereof.
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(e) Indemnification.
(i) Indemnification by Company. In the event
of any registration of any Shares of Company under the
Securities Act pursuant to this Agreement, Company will
indemnify and hold harmless, to the full extent permitted by
law, Holder, its directors and officers, general partners,
limited partners and managing directors, each other Person
who participates as an underwriter in the offering or sale
of such securities and each other Person, if any, who
controls, is controlled by or is under common control with
Holder or any such underwriter within the meaning of the
Securities Act (and directors, officers, controlling
Persons, partners and managing directors of any of the
foregoing) against any and all losses, claims, damages or
liabilities, joint or several, and expenses (including any
amounts paid in any settlement effected with Company's
consent, which consent will not be unreasonably withheld) to
which Holder, any such director or officer or general or
limited partner or managing director or any such underwriter
or controlling Person may become subject under the
Securities Act, United States state securities "blue sky"
laws, common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions or proceedings in
respect thereof) or expenses arise out of or are based upon
(A) any untrue statement or alleged untrue statement of any
material fact contained, on the effective date thereof, in
any registration statement under which such securities were
registered under the Securities Act, any preliminary, final
or summary prospectus contained therein, or any amendment or
supplement thereto, (B) any omission or alleged omission to
state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading,
or (C) any violation or alleged violation by Company of any
United States federal, state or common law rule or
regulation applicable to Company and relating to action
required of or inaction by Company in connection with any
such registration. Company shall reimburse Holder and each
such director, officer, general partner, limited partner,
managing director or underwriter and controlling Person for
any legal or any other expenses reasonably incurred by them
in connection with investigating or defending such loss,
claim, liability, action or proceeding; provided, however,
that Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability (or
action or proceeding in respect thereof) or expense arises
out of or is based upon any untrue statement or alleged
untrue statement or omission or alleged omission made in
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such registration statement or amendment or supplement
thereto or in any such preliminary, final or summary
prospectus in reliance upon and in conformity with written
information furnished to Company through an instrument duly
executed by Holder in its capacity as a shareholder in
Company or any such director, officer, general or limited
partner, managing director, underwriter or controlling
Person specifically stating that it is for use in the
preparation thereof; and, provided, further, that Company
shall not be liable to Holder, any Person who participates
as an underwriter in the offering or sale of Registrable
Securities, if any, or any other Person, if any, who
controls such underwriter within the meaning of the
Securities Act, pursuant to this Section 2(e)(i) with
respect to any preliminary prospectus or the final
prospectus or the final prospectus as amended or
supplemented as the case may be, to the extent that any such
loss, claim, damage or liability of such underwriter or
controlling Person results from the fact that such
underwriter sold Registrable Securities to a Person to whom
there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the final prospectus or
of the final prospectus as then amended or supplemented,
whichever is most recent, if Company has previously
furnished copies thereof to such underwriter and such final
prospectus, as then amended or supplemented, had corrected
any such misstatement or omission. The indemnity provided
for herein shall remain in full force and effect regardless
of any investigation made by or on behalf of Holder or any
such director, officer, general partner, limited partner,
managing director, underwriter or controlling Person and
shall survive the transfer of such securities by Holder.
(ii) Indemnification by Holder and
Underwriters. Company will require, as a condition to
including any Registrable Securities in any registration
statement filed in accordance with the provisions hereof,
that Company shall have received an undertaking reasonably
satisfactory to it from Holder or any underwriter, to
indemnify and hold harmless (in the same manner and to the
same extent as set forth in paragraph (i) above) Company and
its directors, officers, controlling Persons and all other
prospective sellers and their respective directors,
officers, general and limited partners, managing directors,
and their respective controlling Persons with respect to any
statement or alleged statement in or omission or alleged
omission from such registration statement, any preliminary,
final or summary prospectus contained therein, or any
15
amendment or supplement, if such statement or alleged
statement or omission or alleged omission was made in
reliance upon and in conformity with written information
furnished to Company or its representatives through an
instrument duly executed by or on behalf of Holder or any
underwriter specifically stating that it is for use in the
preparation of such registration statement, preliminary,
final or summary prospectus or amendment or supplement, or a
document incorporated by reference into any of the
foregoing. Such indemnity shall remain in full force and
effect regardless of any investigation made by or on behalf
of Company or Holder, any underwriters or any of their
respective directors, officers, general or limited partners,
managing directors or controlling Persons and shall survive
the transfer of such securities by Holder, provided,
however, that Holder shall not be liable in the aggregate
for any amounts exceeding the product of the sale price per
Registrable Security and the number of Registrable
Securities being sold pursuant to such registration
statement or prospectus by Holder.
(iii) Notices of Claims, Etc. Promptly after
receipt by an indemnified party hereunder of written notice
of the commencement of any action or proceeding with respect
to which a claim for indemnification may be made pursuant to
this Section 2(e), such indemnified party will, if a claim
in respect thereof is to be made against an indemnifying
party, promptly give written notice to the indemnifying
party of the commencement of such action, provided, however,
that the failure of any indemnified party to give notice as
provided herein shall not relieve the indemnifying party of
its obligations under the preceding subsections of this
Section 2(e), except to the extent that the indemnifying
party is actually materially prejudiced by such failure to
give notice. In case any such action is brought against an
indemnified party, unless in such indemnified party's
reasonable judgment a conflict of interest between such
indemnified party and indemnifying parties may exist in
respect of such claim, the indemnifying party will be
entitled to participate in and, jointly with any other
indemnifying party similarly notified, to assume the defense
thereof, to the extent that it may wish, with counsel
reasonably satisfactory to such indemnified party, and after
notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the
indemnifying party will not be liable to such indemnified
party for any legal or other expenses subsequently incurred
by the latter in connection with the defense thereof, unless
16
in such indemnified party's reasonable judgment a conflict
of interest between such indemnified and indemnifying
parties arises in respect of such claim after the assumption
of the defense thereof, and the indemnifying party will not
be subject to any liability for any settlement made without
its consent (which consent shall not be unreasonably
withheld). No indemnifying party will consent to entry of
any judgment or enter into any settlement that does not
include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party of a release
from all liability in respect to such claim or litigation.
An indemnifying party who is not entitled to, or elects not
to, assume the defense of a claim will not be obligated to
pay the fees and expenses of more than one counsel in any
single jurisdiction for all parties indemnified by such
indemnifying party with respect to such claim, unless in the
reasonable judgment of any indemnified party a conflict of
interest may exist between such indemnified party and any
other of such indemnified parties with respect to such
claim, in which event the indemnifying party shall be
obligated to pay the fees and expenses of such additional
counsel or counsels as may be reasonably necessary.
Notwithstanding anything to the contrary set forth herein,
and without limiting any of the rights set forth above, in
any event any party will have the right to retain, at its
own expense, counsel with respect to the defense of a claim.
(iv) Other Indemnification. Indemnification
similar to that specified in the preceding subsections of
this Section 2(e) (with appropriate modifications) shall be
given by Company and Holder, to the full extent permitted by
applicable law, with respect to any required registration or
other qualification of securities under any United States
federal or state law or regulation or governmental authority
other than the Securities Act.
(v) Contribution. In order to provide for
just and equitable contribution in circumstances in which
the indemnity agreement provided for in this Section 2(d) is
for any reason held to be unenforceable although applicable
in accordance with its terms, Company, Holder and the
underwriters shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement incurred by
Company, Holder and the underwriters, in such proportions
that the underwriters are responsible for that portion
represented by the percentage that the underwriting discount
appearing on the cover page of the prospectus bears to the
17
initial public offering price appearing thereon and Company
and Holder are responsible for the balance; provided,
however, that 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. As between Company and Holder, such
parties shall contribute to the aggregate losses,
liabilities, claims, damages and expenses of the nature
contemplated by such indemnity agreement in such proportion
as shall be appropriate to reflect (A) the relative benefits
received by Company, on the one hand, and Holder on the
other hand, from the offering of the Registrable Securities
and any other securities included in such offering, and
(B) the relative fault of Company, on the one hand, and
Holder on the other, with respect to the statements or
omissions that resulted in such loss, liability, claim,
damage or expense, or action in respect thereof, as well as
any other relevant equitable considerations. The relative
fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a
material fact or omission or alleged omission to state a
material fact relates to information supplied by Company or
Holder, the intent of the parties and their relative
knowledge, access to information and opportunity to correct
or prevent such statement or omission. Company and Holder
agree that it would not be just and equitable if
contribution pursuant to this Section 2(e) were to be
determined by pro rata allocation or by any other method of
allocation that does not take into account the equitable
considerations referred to herein. Notwithstanding anything
to the contrary contained herein, Company and Holder agree
that any contribution required to be made by Holder pursuant
to this Section 2(e) shall not exceed the net proceeds from
the offering of Registrable Securities (before deducting
expenses) received by Holder with respect to such offering.
For purposes of this Section 2(e), each Person, if any, who
controls Holder or an underwriter within the meaning of
Section 15 of the Securities Act shall have the same rights
to contribution as Holder or such underwriter, and each
director of Company, each officer of Company who signed the
registration statement, and each Person, if any, who
controls Company within the meaning of Section 15 of the
Securities Act shall have the same rights to contribution as
Company.
(f) Rule 144. At all times after a public
offering of any of Company's Shares, Company agrees that it
18
will file in a timely manner all reports required to be
filed by it pursuant to the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and, if at any time Company
is not required to file such reports, it will make available
to the public, to the extent required to permit the sale of
Shares by Holder pursuant to Rule 144, current information
about itself and its activities as contemplated by Rule 144
under the Securities Act, as such Rule may be amended from
time to time. Notwithstanding the foregoing, Company may
deregister any class of its equity securities under Section
12 of the Exchange Act or suspend its duty to file reports
with respect to any class of its securities pursuant to
Section 15(d) of the Exchange Act if it is then permitted to
do so pursuant to the Exchange Act and the rules and
regulations thereunder.
3. Representations, Warranties and Certain
Covenants.
In order to induce Holder to enter into the Credit
Agreement and this Agreement, Company represents and
warrants unto the Lender, and covenants with the Lender, as
set forth in this Section 3:
(a) Organization, etc. Company is a corporation
validly organized and existing and in good standing under
the laws of the State of its organization, is duly qualified
to do business and is in good standing as a corporation in
each jurisdiction where the nature of its business requires
such qualification, and has full power and authority and
holds all requisite governmental licenses, permits and other
approvals to enter into and perform its obligations under
this Agreement and to own and hold under lease its property
and to conduct its business substantially as currently
conducted by it.
(b) Due Authorization, Non-Contravention, etc.
The execution, delivery and performance by Company of this
Agreement are within Company's corporate powers, have been
duly authorized by all necessary corporate and shareholder
(if any) action, and do not
(i) contravene the certificate of
incorporation or by-laws of Company;
(ii) contravene any contractual restriction,
law or governmental regulation or court decree or order
binding on or affecting Company; or
19
(iii) result in, or require the creation or
imposition of, any Lien on any of Company's properties.
(c) Government Approval, Regulation, etc. No
authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory
body or other Person is required for the due execution,
delivery or performance by Company of this Agreement.
Company is not an "investment company" within the meaning of
the Investment Company Act of 1940, as amended, or a
"holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a
"subsidiary company" of a "holding company", within the
meaning of the Public Utility Holding Company Act of 1935,
as amended.
(d) Validity, etc. This Agreement constitutes the
legal, valid and binding obligation of Company enforceable
in accordance with its terms.
(e) Financial Information. The balance sheet of
Company as at July 27, 1997, certified by Price
WaterhouseLLP, and the related statements of earnings and
cash flow of Company, certified by Price WaterhouseLLP,
copies of which have been furnished to Holder, have been
prepared in accordance with GAAP consistently applied, and
present fairly the consolidated financial condition of
Company as at the date thereof.
(f) No Material Adverse Change. Since the date of
the financial statements described in Section 3(e), there
has been no material adverse change in the financial
condition, operations, assets, business, properties or
prospects of Company.
(g) Litigation, Labor Controversies, etc. There
is no pending or, to the knowledge of Company threatened
litigation, action, proceeding or labor controversy
affecting Company or any of its properties, assets or
revenues, which is reasonably likely to materially adversely
affect the financial condition, operations, assets,
business, properties or prospects of Company or which
purports to affect the legality, validity or enforceability
of this Agreement.
(h) Taxes. Company has filed all tax returns and
reports required by law to have been filed by it and has
20
paid all taxes and governmental charges thereby shown to be
owing, except any such taxes or charges which are being
diligently contested in good faith by appropriate
proceedings and for which adequate reserves in accordance
with GAAP shall have been set aside on its books.
(i) Accuracy of Information. All factual
information heretofore or contemporaneously furnished by or
on behalf of Company in writing to Holder for purposes of or
in connection with this Agreement or any transaction
contemplated hereby is, and all other such factual
information hereafter furnished by or on behalf of Company
to Holder will be, true and accurate in every material
respect on the date as of which such information is dated or
certified and as of the date of execution and delivery of
this Agreement by Holder, and such information is not, or
shall not be, as the case may be, incomplete by omitting to
state any material fact necessary to make such information
not misleading.
(j) Financial Information, Reports, Notices, etc.
So long as this Agreement shall remain in effect, Company
will furnish, or will cause to be furnished, to Holder
copies of the following financial statements, reports,
notices and information:
(i) as soon as available and in any event within
45 days after the end of each fiscal quarter of each
fiscal year of Company, a consolidated balance sheet of
Company and its consolidated subsidiaries as of the end
of such fiscal quarter and statements of earnings and
cash flow of Company and its consolidated subsidiaries
for such fiscal quarter and for the period commencing at
the end of the previous fiscal year and ending with the
end of such fiscal quarter, certified by the chief
financial officer of Company;
(ii) as soon as available and in any event within
90 days after the end of each fiscal year of Company, a
copy of the annual audit report for such fiscal year for
Company and its consolidated subsidiaries, including
therein a balance sheet of Company and its consolidated
subsidiaries as of the end of such fiscal year and
statements of earnings and cash flow of Company for such
fiscal year, in each case certified (without
qualification) in a manner acceptable to Holder by Price
WaterhouseLLP or other independent public accountants
acceptable to Holder;
21
(iii) such other information respecting the
condition or operations, financial or otherwise, of
Company which is made available to the Company's
shareholders generally as Holder may from time to time
reasonably request.
4. Miscellaneous.
(a) Remedies. Holder, in addition to being
entitled to exercise all rights provided herein, in the
Stock Purchase Agreement or granted by law, including
recovery of liquidated or other damages, will be entitled to
specific performance of its rights under this Agreement.
Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by
it of the provisions of this Agreement and hereby agrees to
wave the defense in any action for specific performance that
a remedy at law would be adequate.
(b) No Inconsistent Agreements. Company will not
on or after the date of this Agreement enter into any
agreement with respect to its securities that is
inconsistent with the rights granted to Holder in this
Agreement or otherwise conflicts with the provisions hereof.
No Person, other than Holder and Xxxxxxxxx L.L.C. pursuant
to the Xxxxxxxxx Agreement, has the right, contractual or
otherwise, to require the registration of any securities of
Company by virtue of any transaction contemplated by this
Agreement or the Credit Agreement. The rights granted to
Holder hereunder do not in any way conflict with and are not
inconsistent with the rights granted to the holders of
Company's securities under any agreement in effect on the
date hereof.
(c) Amendments and Waivers. The provisions of
this Agreement may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions
hereof may not be given unless Company has obtained the
written consent of Holder.
(d) Notices. All notices and other communications
provided for or permitted hereunder shall be made in writing
by hand-delivery, first-class mail (registered or certified,
return receipt requested), telex, telecopier, or air courier
guaranteeing overnight delivery:
22
(i) if to Holder, at:
ING (U.S.) Capital Corporation
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No. (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxx
Senior Vice President
with a copy to:
Xxxxxx & Xxxxxx
Xxx Xxxxxxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
(ii) if to Company, at:
American Skiing Company
Sunday Xxxxx Xxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxxxxxx X. Xxxxxx, Esq.
All such notices and communications shall be deemed
to have been duly given: at the time delivered by hand, if
personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if
telecopied; and on the next Business Day, if timely
delivered to an air courier guaranteeing overnight delivery.
(e) Successors and Assigns. This Agreement shall
inure to the benefit of and be binding upon the successors
and assigns of each of the parties hereto, including without
limitation and without the need for an express assignment,
subsequent holders of Registrable Securities; provided,
however, that this Agreement shall not inure to the benefit
of or be binding upon a successor or assign of Holder unless
and to the extent such successor or assign acquired
Registrable Securities from Holder.
(f) Counterparts. This Agreement may be executed
in any number of counterparts and by the parties hereto in
23
separate counterparts, each of which when so executed shall
be deemed to be an original and all of which taken together
shall constitute one and the same agreement.
(g) Headings. The headings in this Agreement are
for convenience of reference only and shall not limit or
otherwise affect the meaning hereof.
(h) Governing Law. THIS AGREEMENT SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE
STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW
RULES THEREOF.
(i) Severability. In the event that any one or
more of the provisions contained herein, or the application
thereof in any circumstance, is held invalid, illegal or
unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the
remaining provisions contained herein shall not be affected
or impaired thereby.
(j) Entire Agreement. This Agreement together
with the Stock Purchase 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, warranties or undertakings, other than those set
forth or referred to herein with respect to the registration
rights granted by Company with respect to the Registrable
Securities. This Agreement supersedes all prior agreements
and understandings between the parties with respect to such
subject matter.
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IN WITNESS WHEREOF, the parties hereto have
executed this Agreement as of the date first written above.
AMERICAN SKIING COMPANY
By: /s/ Xxxxxxxxxxx X. Xxxxxx
----------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Senior Vice President
ING (U.S.) CAPITAL CORPORATION
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Name: Xxxxx X. Xxxxxx
Title: Senior Vice President
25
