EXHIBIT 10.66
REGISTRATION RIGHTS AGREEMENT
by and between
AMERICAN SKIING COMPANY
and
BEAR XXXXXXX & CO, INC.
SUNAMERICA INVESTMENTS, INC.
AND
FIDELITY MANAGEMENT & RESEARCH
Dated as of December 29, 1997
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
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Registration Rights Agreement ( this or the "Agreement") dated as of
December _, 1997, by American Skiing Company, a Maine corporation (the
"Company) and Bear Xxxxxxx & Co, Inc., Sunamerica Investments, Inc. and
Fidelity Management & Research (the "Initial Holder").
W I T N E S S E T H:
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, 615,022 shares
of Common Stock, $.01 Par Value, of the Company; and
WHEREAS, in order to induce the Initial 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 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 Bear Xxxxxxx & Co, Inc., Sunamerica
Investments, Inc. and Fidelity Management & Research.
"Inspectors" shall have the meaning set forth in Section 4.1(g).
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Person" shall means 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 615,022 shares of Common
Stock issued to the Initial Holder 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
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delivered by the Company and subsequent public distribution of them shall not
require registration under the 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
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preliminary Prospectus included therein. Each Holder as to which any
Registration Statement is being effected agrees to furnish promptly to
the Company all information request 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 (i) the Common Stock issued to Xxxxx X. Xxxxxx pursuant
to a Securities Purchase Agreement dated January 23, 1998; and (ii)
the Exchangeable Convertible Preferred Stock of the Company ("Repriced
Converts") and the Common Stock into which the Repriced Converts may be
converted held by Xxxxxxxxx, L.L.C.) 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 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) or
(ii) 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
for a period of twelve (12) months following the Effective Date plus a period
equal in length to any Delay Period; provided, however, that prior to the
termination of such Registration, the Company shall first furnish to
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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 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
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necessary (i) to keep such Registration Statement 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, and (ii) to comply with the provisions of the Securities Act
with respect to the disposition of al Registrable Securities covered by
such Registration Statement, each case 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 of 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 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 the selling Holders of such
Registrable Securities to consummate the disposition of such Registrable
Securities;
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(f) promptly notify Holders' Counsel and each Holder of
Registrable Securities covered by such Registration Statements: (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 of 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
7
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 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) provide 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 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
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financial statement and schedules, all documents incorporated therein by
reference and all exhibits (including those deemed to be incorpoarted by
reference);
(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).
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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 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 thereto) related to such
registration, or 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, 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
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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.
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; provided, 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 (wether 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
11
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, o the other hand, in connection with the actions which
resulted 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 a 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
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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 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:
Xx. Xxx Xxxxxxxx
Bear, Xxxxxxx & Co., Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ms. Janegail Orringer
Sunamerica Investments, Inc.
000 xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
13
Xx. Xxx Xxxxx
Fidelity Management & Research
0 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
(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.
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 ad 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
14
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.
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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first written above.
AMERICAN SKIING COMPANY BEAR, XXXXXXX CO., INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxx
-------------------------- -----------------------------
Its Senior Vice President Its Senior Managing Director
SUNAMERICA INVESTMENTS, INC.
By: /s/ Janegail Orringer
-----------------------------
Its Authorized Agent
FIDELITY MANAGEMENT & RESEARCH
By: /s/ Xxxxxx X. Xxxxx
-----------------------------
Its Vice President
Manufacturers Life Hy
Portfolio Manager
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