VOTING AGREEMENT dated as of August 6, 1999 (this "Agreement") among
AMERICAN SKIING COMPANY, a Maine corporation (the "Company"), the persons and
entities listed on Schedule I hereto (each a "Stockholder" and collectively the
"Stockholders") and OAK HILL CAPITAL PARTNERS, L.P. ("Oak Hill"), on behalf of
the Purchasers identified in the Stock Subscription Agreement (defined below).
Unless otherwise defined in this Agreement, capitalized terms are used herein as
defined in the Stock Subscription Agreement (defined below).
WHEREAS this Agreement is being executed pursuant to the provisions
of Sections 615 and 617 of the Maine Business Corporation Act and in conjunction
with the Preferred Stock Subscription Agreement dated July 9, 1999 by and
between the Company and the Purchasers, as amended by Amendment No.1 thereto by
and among the Company and the Purchasers (collectively, the "Stock Subscription
Agreement"), pursuant to which the Company is selling to the Purchasers, and the
Purchasers are purchasing from the Company, the Company's 8.5% Series B
Convertible Participating Preferred Stock, par value $.01 per share, upon the
terms and subject to the conditions set forth in the Stock Subscription
Agreement (the "Preferred Stock Sale").
WHEREAS, as of the date hereof, the Stockholders have beneficial
ownership of, and own or possess voting power with respect to, the shares of
Class A Common Stock, the Common Stock and the Senior Preferred Stock as set
forth on Schedule I.
WHEREAS, as a condition to the willingness of the Purchasers to
close the transaction contemplated by the Stock Subscription Agreement, Oak Hill
has required that each Stockholder and the Company agree, and in order to induce
the Purchasers to close such transactions, each Stockholder and the Company has
agreed, to enter into this Agreement with respect to all the shares of Class A
Common Stock, Common Stock and Senior Preferred Stock now owned and which may
hereafter be acquired by each Stockholder (the "Shares").
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
ARTICLE I
VOTING OF SHARES
SECTION 1.01. Voting Agreement. Each Stockholder hereby agrees that
at any meeting of the stockholders of the Company, however called, and in any
action by unanimous consent of the stockholders of the Company, such Stockholder
shall vote the Shares: (A) in favor
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of the Preferred Stock Sale and the transactions contemplated by the Stock
Subscription Agreement, (B) against any Competing Transaction, (C) in favor of
the Delaware Reincorporation, (D) in favor of the approval of the issuance of
the Conversion Stock, if any, pursuant to the Stock Subscription Agreement and
as required by the rules of the New York Stock Exchange ("NYSE Authorization")
and (E) to the extent consistent with such a vote in favor of the Delaware
Reincorporation or the NYSE Authorization, in such a manner as shall be
necessary, with respect to any procedural matters presented at any such meeting
at which any action is scheduled to be taken with respect to the Delaware
Reincorporation or the NYSE Authorization.
SECTION 1.02. Irrevocable Proxy. In the event a Stockholder shall
fail (whether willfully, negligently or inadvertently) to comply with the
provisions of Section 1.01 hereof as determined by Oak Hill in its reasonable
judgment (a "Defaulting Stockholder"), such Stockholder agrees that such failure
shall constitute, without any further action by such Stockholder, the
irrevocable appointment of Oak Hill, until termination of this Agreement, as
such Stockholder's attorney and proxy pursuant to the provisions of Section 615
of the Maine Business Corporation Act, with full power of substitution, to vote,
and otherwise act (by written consent or otherwise) with respect to the Shares
which such Stockholder is entitled to vote at any meeting of stockholders of the
Company (whether annual or special and whether or not an adjourned or postponed
meeting) or unanimous consent in lieu of any such meeting or otherwise, on the
matters and in the manner specified in Section 1.01 hereof. THIS PROXY AND POWER
OF ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN INTEREST. Each Stockholder hereby
revokes all other proxies and powers of attorney with respect to the Shares
which such Stockholder may have heretofore appointed or granted to the extent
any such proxy conflicts with the proxy granted hereunder, and with respect to
the revocation made concerning Shares beneficially owned by Xx. Xxxxx, to the
extent this Agreement requires, ING expressly acknowledges and agrees to such
revocation; provided that, subject to Article III, such acknowledgment and
agreement shall in no way alter any existing or future rights of ING with
respect to the pledge of Class A Common Stock and Common Stock granted to it by
Xx. Xxxxx. No subsequent proxy or power of attorney shall be given or written
consent executed (and if given or executed, shall not be effective) by such
Stockholder with respect thereto. All authority herein conferred or agreed to be
conferred shall survive the death or incapacity of each Stockholder and any
obligation of a Stockholder under this Agreement shall be binding upon the
heirs, personal representatives and successors of such Stockholder (subject,
however, to the proviso set forth in Section 4.03 hereof). Oak Hill may effect
its rights to exercise the proxy pursuant to this Section 1.02 without notice to
any Defaulting Stockholder, and the Company shall accept any such proxy
delivered to the Company by Oak Hill with respect to a vote or stockholder
action referred to in Section 1.01 and such proxy shall override any purported
vote or action by the relevant Defaulting Stockholder.
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ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder hereby represents and warrants to Oak Hill as
follows:
SECTION 2.01. Authority Relative to This Agreement. (a) In the case
of a Stockholder that is a corporation, trust or other business organization,
such Stockholder has all necessary power and authority to execute and deliver
this Agreement, to carry out its obligations hereunder and to consummate the
transactions contemplated hereby.
(b) In the case of a Stockholder who is an individual, such
Stockholder is an adult, is a citizen of the United States of America and is
competent to execute and deliver this Agreement, to carry out its obligations
hereunder and to consummate the transactions contemplated hereby.
(c) This Agreement has been duly executed and delivered by each
Stockholder, and (assuming due authorization, execution and delivery by Oak
Hill) this Agreement constitutes a legal, valid and binding obligation of each
Stockholder, enforceable against each Stockholder in accordance with its terms.
SECTION 2.02. No Conflict. (a) The execution, delivery and
performance of this Agreement by each Stockholder does not and will not, (i)
conflict with or violate any law, order, writ, judgment, injunction, decree,
stipulation, determination or award entered by or with any Governmental
Authority applicable to such Stockholder or by which the Shares are bound or
affected, (ii) in the case of any Stockholder that is a corporation or other
business organization, violate, conflict with or result in the breach of any
provision of the articles of incorporation or by-laws (or similar organizational
documents), (iii) in the case of any Stockholder that is a trust, violate or
conflict with any term or provision of the indenture, or other governing or
testamentary instrument relating to such trust, or (iv) conflict with, result in
any breach of, constitute a default (or event which with the giving of notice or
lapse of time, or both, would become a default) under, require any consent
under, or give to others any rights of termination, amendment, acceleration,
suspension, revocation or cancellation of, or result in the creation of a lien
or encumbrance on any of the Shares pursuant to, any note, bond, mortgage or
indenture, contract, agreement, lease, sublease, license, permit, franchise or
other instrument, obligation or arrangement or other proxy, voting trust,
stockholder agreement or similar instrument or agreement to which such
Stockholder is a party or by which such Stockholder or the Shares are bound or
affected, except, in the case of the foregoing, for any such conflicts,
violations, breaches, defaults or other occurrences which would not prevent or
unreasonably delay the performance by such Stockholder of its obligations under
this Agreement.
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(b) The execution, delivery and performance of this Agreement by
each Stockholder does not and will not require any consent, approval,
authorization or other order of, action by, filing with or notification to, any
Governmental Authority except for applicable requirements, if any, of the
Securities Exchange Act of 1934, as amended.
SECTION 2.03. Title to the Shares. As of the date hereof, each
Stockholder is the beneficial owner of, and/or owns or possesses voting power
with respect to, the number of shares of Class A Common Stock, Common Stock and
Senior Preferred Stock as set forth on Schedule I and such securities are all
the securities of the Company owned (either of record or beneficially) by each
Stockholder or over which each Stockholder owns or possesses voting power. As of
the date hereof and at any meeting of the stockholders of the Company held
during the term of this Agreement, each Stockholder has, and shall have, the
ability to vote all of the shares of Class A Common Stock, Common Stock and
Senior Preferred Stock as set forth on Schedule I in accordance with Section
1.01 this Agreement. Except as referred to in this Agreement or in the schedule
hereto, each Stockholder has not appointed or granted any proxy, which
appointment or grant is still effective, with respect to the Shares.
ARTICLE III
COVENANTS OF THE STOCKHOLDERS
SECTION 3.01. No Inconsistent Agreements. Each Stockholder hereby
covenants and agrees that, except as contemplated by this Agreement and the
Stock Subscription Agreement, such Stockholder shall not enter into any voting
agreement or grant a proxy or power of attorney with respect to the Shares which
is inconsistent with this Agreement.
SECTION 3.02. Transfer of Title. (a) Each Stockholder and ING hereby
covenants and agrees that such party shall not transfer record or beneficial
ownership of, or any voting interest with respect to, any of the Shares unless
Oak Hill is provided with prior notice of such transfer and the transferee
agrees in writing, in form reasonably acceptable to Oak Hill, to be bound by the
terms and conditions of this Agreement; provided, however, that notwithstanding
the foregoing, Xxxxxxxx LLC may transfer its interests in the shares of Common
Stock set forth under its name on Schedule I in open market transactions without
restriction.
(b) Notwithstanding Section 3.02(a), Oak Hill hereby consents to any
Transfer (as that term is defined in the Stockholders Agreement) by Xx. Xxxxx of
all or any portion of the 833,333 Shares of Common Stock owned or controlled by
him in (i) a Transfer to Oak Hill or any of its Affiliates, or (ii) a Transfer
permitted by Section 4.02(a)(B) of the Stockholders' Agreement provided that,
immediately after giving effect to such Transfer, the aggregate voting power of
the Shares remaining subject to this Agreement must be greater than 50% of the
Shares entitled to vote on each of the Delaware Reincorporation and the NYSE
Authorization.
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SECTION 3.03. Notice of Voting Intention. Each of the Stockholders
and ING hereby covenants and agrees that such party shall provide Oak Hill with
notice of its intention to vote for or against, or to abstain from voting on,
any of the matters described in clauses (A) through (E) of Section 1.01.
SECTION 3.04. ING Exercise of Voting Rights. In the event that ING
elects to foreclose on Shares pledged to it by Xx. Xxxxx or to exercise voting
rights with respect to such Shares, ING shall provide Oak Hill with prior notice
of such intent.
ARTICLE IV
MISCELLANEOUS
SECTION 4.01. Termination. This Agreement shall terminate upon the
earlier of (i) the termination of the Stock Subscription Agreement in accordance
with its terms (but without regard to the survival provisions of such agreement)
and (ii) the consummation of the events contemplated by Section 5.06(i) of the
Stock Subscription Agreement.
SECTION 4.02. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms and provisions hereof, in addition
to any other remedy at law or in equity.
SECTION 4.03. Successors and Affiliates; Assignment. This Agreement
shall inure to the benefit of and shall be binding upon the parties hereto and
their respective heirs, legal representatives and assigns. If any person shall
acquire additional Shares from a Stockholder in any manner, whether by operation
of law or otherwise, such Shares shall be held subject to all of the terms of
this Agreement, and by taking and holding such Shares, such person shall be
conclusively deemed to have agreed to be bound by and to comply with all of the
terms and provisions of this Agreement; provided, however, that the provisions
of this sentence shall not apply to any Transfer of Shares pursuant to Section
3.02(b) of this Agreement. Without limiting the foregoing, each Stockholder
specifically agrees that the obligations of such Stockholder hereunder shall not
be terminated by operation of law, whether by the death or incapacity of any
individual Stockholder or, in the case of a trust, by the death or incapacity of
any trustee or the termination of such trust.
SECTION 4.04. Entire Agreement. This Agreement, together with the
Stockholders' Agreement, constitutes the entire agreement of the parties hereto
with respect to the subject matter hereof and supersedes all prior agreements
and understandings, both written and oral, among the Company, Oak Hill and each
Stockholder with respect to the subject matter hereof.
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SECTION 4.05. Amendment. This Agreement may not be amended or
modified except by an instrument in writing signed by the parties hereto.
SECTION 4.06. Waivers. Except as provided in this Agreement, no
action taken pursuant to this Agreement, including, without limitation, any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance with any representations,
warranties, covenants or agreements contained in this Agreement. The waiver by
any party hereto of a breach of any provision hereunder shall not operate or be
construed as a waiver of any prior or subsequent breach of the same or any other
provision hereunder.
SECTION 4.07. Severability. Any term or provision of this Agreement
which is invalid or unenforceable in any jurisdiction shall, as to that
jurisdiction, be ineffective to the extent of such invalidity or
unenforceability without rendering invalid or unenforceable the remaining terms
and provisions of this Agreement or affecting the validity or enforceability of
any of the terms or provisions of this Agreement in any other jurisdiction. If
any provision of this Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
SECTION 4.08. Governing Law; Forum. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Maine applicable
to contracts executed in and to be performed entirely in that state and without
regard to any applicable conflicts of law principles. All actions and
proceedings arising out of or relating to this Agreement shall be heard and
determined in the United States District Court for the Southern District of New
York. Each of the parties to this Agreement (a) consents to submit itself to the
personal jurisdiction of the United States District Court for the Southern
District of New York, in the event that any dispute arises out of this Agreement
or any of the transactions contemplated by this Agreement, (b) agrees that it
will not attempt to deny or defeat such personal jurisdiction by motion or other
request for leave from any such court and (c) agrees that it will not bring any
action in relation to this Agreement or any of the other transactions
contemplated by this Agreement in any court other than the United States
District Court for the Southern District of New York.
SECTION 4.09. Headings. The descriptive headings contained in this
Agreement are for convenience of reference only and shall not affect in any way
the meaning or interpretation of this Agreement. No party to this Agreement
shall be deemed to be the draftsman of this Agreement.
SECTION 4.10. Counterparts. This Agreement may be executed and
delivered (including by facsimile transmission) in one or more counterparts, and
by the different parties hereto in separate counterparts, each of which when
executed and delivered shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, each of the Company, the Stockholders and Oak
Hill have caused this Agreement to be duly executed on the date hereof.
AMERICAN SKIING COMPANY
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: As President
/s/ Xxxxxx X. Xxxxx
-------------------
XXXXXX X. XXXXX
XXXXXX XXXXX TRUST
F/B/O XXXXXXX XXXXX
By: /s/ Xxxxxx X. Xxxxx
-------------------
Name: Xxxxxx X. Xxxxx
Title: Trustee
AGREED AND APPROVED:
ING US CAPITAL LLC,
AS PLEDGEE OF SHARES
OF CLASS A COMMON
STOCK AND COMMON STOCK
BENEFICIALLY OWNED BY
XXXXXX X. XXXXX
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name: Xxxxxx X. Xxxxxxx
Title: Director
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OAK HILL CAPITAL PARTNERS, L.P.
By: OHCP GenPar, L.P.,
its general partner
By: OHCP MGP, LLC,
its general partner
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Managing Member
OAK HILL CAPITAL MANAGEMENT
PARTNERS, L.P.
By: OHCP GenPar, L.P.,
its general partner
By: OHCP MGP, LLC,
its general partner
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
OAK HILL SECURITIES FUND, L.P.
By: Oak Hill Securities GenPar, L.P.,
its General Partner
By: Oak Hill Securities MGP, Inc.,
its General Partner
By: /s/ Xxxxx X. August
-------------------
Name: Xxxxx X. August
Title: President
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OHCP SKI, L.P.
By: Oak Hill Capital Partners, L.P.
its general partner
By: OHCP GenPar, L.P.,
its general partner
By: OHCP MGP, LLC,
its general partner
By: /s/ Xxxxxx X. Xxxxxx
--------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
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XXXXXXXXX LLC
By: /s/ Xxxxxx Xxxxxxxxx
--------------------
Name: Xxxxxx Xxxxxxxxx
Title: Managing Director
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SCHEDULE I
BENEFICIAL OWNERSHIP OF CAPITAL STOCK OF THE COMPANY
Xxxxxx X. Xxxxx
---------------
14,760,530 shares of Class A Common Stock,
833,333 shares of Common Stock, and
0 shares of Senior Preferred Stock.
Xxxxxx Xxxxx Trust f/b/o Xxxxxxx Xxxxx
--------------------------------------
0 shares of Class A Common Stock,
30,000 shares of Common Stock, and
0 shares of Senior Preferred Stock.
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Xxxxxxxxx LLC
-------------
No shares of Class A Common Stock,
1,352,800 shares of Common Stock, and
36,626 shares of Senior Preferred Stock.
