EXHIBIT 10.108
AMENDED AND RESTATED
REGISTRATION RIGHTS AGREEMENT
by and between
AMERICAN SKIING COMPANY
and
XXXXXXXXX L.L.C.
Dated as of November 3, 1997
TABLE OF CONTENTS
PAGE
1. DEFINITIONS...............................................................2
2. REGISTRATION UNDER THE SECURITIES ACT.....................................6
2.1 REGISTRATION.........................................................6
2.2 EFFECTIVE PERIOD.....................................................8
2.3 EXPENSES.............................................................9
2.4 UNDERWRITTEN OFFERINGS...............................................9
2.5 CONVERSIONS; EXERCISES...............................................9
3. REGISTRATION PROCEDURES..................................................10
3.1 OBLIGATIONS OF THE COMPANY..........................................10
3.2 SELLER INFORMATION..................................................14
3.3 NOTICE TO DISCONTINUE...............................................14
4. INDEMNIFICATION; CONTRIBUTION............................................15
4.1 INDEMNIFICATION BY THE COMPANY......................................15
4.2 INDEMNIFICATION BY HOLDERS..........................................16
4.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS..............................16
4.4 CONTRIBUTION........................................................17
4.5 OTHER INDEMNIFICATION...............................................18
4.6 INDEMNIFICATION PAYMENTS............................................18
5. GENERAL..................................................................18
5.1 ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES........................18
5.2 REGISTRATION RIGHTS TO OTHERS.......................................18
5.3 AMENDMENTS AND WAIVERS..............................................18
5.4 NOTICES.............................................................18
5.5 SUCCESSORS AND ASSIGNS..............................................19
5.6 COUNTERPARTS........................................................20
5.7 DESCRIPTIVE HEADINGS, ETC...........................................20
5.8 SEVERABILITY........................................................20
5.9 GOVERNING LAW.......................................................20
5.10 REMEDIES; SPECIFIC PERFORMANCE......................................21
5.11 ENTIRE AGREEMENT....................................................21
5.12 NOMINEES FOR BENEFICIAL OWNERS......................................21
5.13 CONSENT TO JURISDICTION.............................................21
5.14 FURTHER ASSURANCES..................................................22
5.15 NO INCONSISTENT AGREEMENTS..........................................22
5.16 CONSTRUCTION........................................................22
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AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT (this or the
"Agreement") dated as of November 3, 1997, by American Skiing Company (formerly
ASC Holdings, Inc., a Maine corporation (the "Company"), and Xxxxxxxxx L.L.C.
(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, dated as of July 2, 1997, as amended by that certain First
Amendment dated July 25, 1997 and as further amended by that certain Amendment
and Waiver, of even date herewith (the "Amendment and Waiver") between the
Company and the Initial Holder amending or waiving certain provisions of the
Purchase Agreement (the "Purchase Agreement"), pursuant to which the Company
issued, and the Initial Holder purchased, certain securities of the Company;
and
WHEREAS, in order to induce the Initial Holder to enter into the
Purchase Agreement, the Company and its Subsidiaries agreed to provide certain
registration rights on the terms and subject to the conditions set forth herein;
and
WHEREAS, the Initial Holder and the Company desire to amend and
restate this Agreement in connection with the Company's initial public offering
of common stock (the "IPO") and the Amendment and Waiver;
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. As used in this Agreement, the following terms shall have the
following meanings:
"Acquiring Person" has the meaning specified in the Purchase
Agreement.
"Affiliate" shall mean with respect to any 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.
"Certificate of Designation" shall mean the Certificate of
Designation, Number, Voting Powers, Preferences and Rights of the Preferred
Stock of the Company and Rights of the Convertible Preferred Stock, as filed
with the Secretary of State of the State of Maine.
"Common Shares" shall mean shares of Common Stock of the Company.
"Common Stock" shall mean the class of Common Stock, par value $.01
per share, of the Company to be issued to the public, as such Common Stock may
be constituted from time to time.
"Company" shall have the meaning set forth in the preamble.
"Conversion Shares" shall mean the Common Shares or other equity
securities issued or issuable upon conversion of the Convertible Securities.
"Convertible Securities" shall mean the Repriced Converts.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended from time to time, and the rules and regulations thereunder, or any
similar or successor statute.
"Holders" shall mean the Initial Holder for so long as it owns any
Registrable Securities and such of its respective heirs, successors and
permitted assigns (including any permitted transferees of Registrable
Securities) who acquire or are otherwise the transferee of Registrable
Securities, directly or indirectly, from such Initial Holder (or any subsequent
Holder), for so long as such heirs, successors and permitted assigns own any
Registrable Securities. For purposes of this Agreement, a Person will be deemed
to be a Holder whenever such Person holds an option to purchase, or a security
convertible into or exercisable or exchangeable for, Registrable Securities,
whether or not such purchase, conversion, exercise or exchange has actually been
effected and disregarding any legal restrictions upon the exercise of such
rights. Registrable Securities issuable upon exercise of an option or upon
conversion, exchange or exercise of another security shall be deemed outstanding
for the purposes of this Agreement.
"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 (i) in the case of a Registration, by the
Initiating Holders holding a majority of the Registrable Securities for which
registration was requested in the Notice, and (ii) in all other cases, by the
Majority Holders of the Registration.
"Initial Holder" shall mean Xxxxxxxxx L.L.C.
"Initial Public Offering" means the initial public offering of the
Company's Common Stock pursuant to a Registration Statement on Form S-1
(Registration No. 333-33483) filed with the SEC, as amended at the time it
becomes effective.
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"Initiating Holders" shall mean, with respect to a particular
registration, the Holders who initiated the Notice for Registration.
"Inspectors" shall have the meaning set forth in Section 4.1(g).
"Liquidation Preference" shall have the meaning specified in the
Purchase Agreement.
"Majority Holders" shall mean one or more Holders of Registrable
Securities who would hold a majority of the Registrable Securities then
outstanding.
"Majority Holders of the Registration" shall mean, with respect to the
Registration, one or more Holders of Registrable Securities who would hold a
majority of the Registrable Securities to be included in the Registration.
"NASD" shall mean the National Association of Securities Dealers, Inc.
"Notice" shall have the meaning set forth in Section 2.1(a).
"Person" shall mean any individual, corporation, partnership, joint
venture, association, joint stock company, trust, unincorporated organization or
any other entity or organization, including a government or agency or political
subdivision thereof (including any subdivision 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.
"Registrable Securities" shall mean (i) any Conversion Shares issued
or issuable upon conversion of the Repriced Converts, (ii) the Repriced Converts
and (iii) 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 clauses (i) and (ii) 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
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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 the legend restricting further transfer shall have been 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 Expenses" shall mean any and all expenses incident to
the performance of or compliance with this Agreement by the Company,
including, without limitation (i)all SEC, stock exchange, NASD and other
registration, listing and filing fees, (ii)all fees and expenses incurred in
connection with compliance with state securities or blue sky laws and
compliance with the rules of any stock exchange (including fees and
disbursements of counsel in connection with such compliance and the
preparation of a blue sky memorandum and legal investment survey), (iii)all
expenses of any Persons in preparing or assisting in preparing, word
processing, printing, distributing, mailing and delivering any Registration
Statement, any Prospectus, any underwriting agreements, transmittal letters,
securities sales agreements, securities certificates and other documents
relating to the performance of or compliance with this Agreement, (iv)the
fees and disbursements of counsel for the Company, (v)the fees and
disbursements of Holders' Counsel, (vi)the fees and disbursements of all
independent public accountants (including the expenses of any audit and/or
"cold comfort" letters) and the fees and expenses of other Persons, including
experts, retained by the Company, (vii) the expenses incurred by the Company
in connection with making road show presentations and holding meetings with
potential investors to facilitate the distribution and sale of Registrable
Securities which are customarily borne by the issuer, (viii) any fees and
disbursements of underwriters customarily paid by issuers or sellers of
securities, (ix)premiums and other costs of policies of insurance against
liabilities arising out of the public offering of the Registrable Securities
being registered, and (x)discounts and commissions payable to underwriters,
selling brokers, dealer managers or other similar Persons engaged in the
distribution of any of the Registrable Securities up to a maximum of three
percent (3%) of the price of the Registrable Securities distributed;
PROVIDED, HOWEVER, that in any case where Registration Expenses are not to be
borne by the Company, such expenses shall not include salaries of the
Company's personnel or general overhead expenses of the Company, auditing
fees, premiums or other expenses relating to liability insurance required by
underwriters of the Company or other expenses for the preparation of
financial statements or other data normally prepared by the Company in the
ordinary course of its business or which the Company Entity would have
incurred in any event.
"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.
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"Repriced Converts" shall have the meaning set forth in the Purchase
Agreement.
"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.
"Underwriters" shall mean the underwriters, if any, of the offering
being registered under the Securities Act.
"Underwritten Offering" shall mean a sale of securities of the Company
to an Underwriter or Underwriters for reoffering to the public.
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 provisions 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) In connection with a Registration contemplated by Section 2.1(a),
the Majority Holders shall have the right to notify in writing that the Company
register all or part of such Holders' Registrable Securities (a "Notice") (which
Notice shall specify the intended method of disposition thereof) by filing with
the SEC a Registration Statement. Subject to Section 2.1(b), the Company shall
include in a Registration all Registrable Securities intended to be disposed of
by the Holders within two years of the initial effective date of the
Registration as specified in the Notice. The Company shall, as expeditiously as
possible following a Notice, 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 in accordance with the intended
methods of disposition thereof specified in such Notice or further notices 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 for the period specified in
Section 3.1(b). The Registration may also include the registration of the
issuance of the Common Shares issuable upon conversion of the Repriced Converts.
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No Holder of Registrable Securities may include any of its
Registrable Securities in the Registration Statement pursuant to this Agreement
unless and until such Holder furnishes to the Company in writing, within 10
business days after receipt of a request therefor, such information concerning
such Holder or its intended method of disposition as the Company may reasonably
request for use in connection with the Registration Statement or Prospectus or
preliminary Prospectus included therein. No Holder of Registrable Securities
shall be entitled to the Registration Delay Fee pursuant to Section 2.1(b)
hereof as a result of a failure to have the Registration Statement effective
within 90 days of the Applicable Closing Date if such failure is a result of
such Holder shall have provided all such reasonably requested information. Each
Holder as to which any Registration Statement is being effected agrees to
furnish promptly to the Company all information required to be disclosed in
order to make the information previously furnished to the Company by such Holder
not materially misleading.
The Company shall use its best efforts to cause the Registration
Statement to be declared effective no later than ninety (90) days following the
closing date of the IPO (the "Applicable Closing Date").
In the event that the Registration Statement shall fail to be
declared effective within ninety (90) days following the Applicable Closing
Date, or a Delay Period (as hereinafter defined) shall occur and be continuing,
the Company shall pay to the Holders a fee (the "Registration Delay Fee"), in
cash, equal to 3% per annum of the Liquidation Value of the Repriced Converts
owned by the Holders, compounded quarterly, for the period from the 90th day
following Applicable Closing date to the date the Registration Statement became
effective and for the period commencing on the first day of any Delay Period and
continuing until the Delay Period shall have ended.
(c) UNDERWRITING; SELECTION OF UNDERWRITERS. If the Initiating
Holders holding a majority of the Registrable Securities for which registration
was requested in the Notice so elect, the offering of such Registrable
Securities pursuant to such Registration shall be in the form of an Underwritten
Offering in customary form; and such Initiating Holders may require that all
other Holders participating in such registration sell their Registrable
Securities to the Underwriters at the same price and on the same terms of
underwriting applicable to the Initiating Holders. If any Registration involves
an Underwritten Offering, the sole or managing Underwriters and any additional
investment bankers and managers to be used in connection with such registration
shall be selected by the Company, subject to the approval of the Holders of a
majority of the Registrable Securities for which registration was requested in
the Request (such approval not to be unreasonably withheld). If any
Registration is being requested concurrently with an offering by the Company and
such registration is for an Underwriting Offering, the sole or managing
Underwriters for such registration shall be the same as selected by the Company
for the registration of such offering.
(d) REGISTRATION OF OTHER SECURITIES. Whenever the Company shall
effect a Registration, no securities other than the Registrable Securities
shall be covered by such registration unless the Majority Holders of the
Registration shall have consented in writing to the inclusion of such other
securities.
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(e) 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 the time
period specified in Section 3.1(b), PROVIDED THAT the Company may suspend the
effectiveness of the Registration Statement, in the event that, and for a period
not to exceed sixty (60) days in any calendar year (a "Blackout Period") if, (i)
an event occurs and is continuing as a result of 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 publicly 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, (ii) in the case of an Underwritten Offering, the
conditions to closing specified in an underwriting agreement to which the
Company is a party are not satisfied other than by the sole reason of any breach
of failure by the Holders of Registrable Securities or are not otherwise waived,
or (iii) a Blackout Period shall occur, then the period of time from the
occurrence of any of the events described in (i), (ii) or (iii) until such event
is no longer continuing shall constitute a "Delay Period".
(f) REGISTRATION STATEMENT FORM. Registrations under this Section
2.1 shall be on such appropriate registration form of the SEC which shall be
available for the sale of Registrable Securities in accordance with the intended
method or methods of disposition specified in the Notice requesting
registration. The Company shall include in any such Registration Statement, in
addition to such information as the Company may desire, all additional
information which any selling Holder, upon advice of counsel, shall reasonably
request.
2.2 EFFECTIVE PERIOD
Subject to its limited right to impose a Blackout Period, the Company
shall use its best efforts to keep the Registration continuously effective
through the date on which all of the Registrable Securities covered by such
Registration may be sold pursuant to Rule 144(k) under the Securities Act (or
any successor provision having similar effect); PROVIDED, HOWEVER, that prior to
the termination of such Registration, the Company shall first furnish to each
Holder of Registrable Securities participating in such Registration (i) an
opinion, in form and substance reasonably satisfactory to the Majority Holders
of the Registration, of counsel for such IPO Entity reasonably satisfactory to
the Majority Holders of the Registration 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.
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2.3 EXPENSES. The Company shall pay all of its Registration Expenses
(including all discounts and commissions payable to underwriters, selling
brokers, managers or other similar Persons engaged in the distribution of
such Holder's Registrable Securities up to a maximum of three percent (3%) of
the price of the Registrable Securities distributed) 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 UNDERWRITTEN OFFERINGS.
(a) UNDERWRITTEN OFFERINGS. If requested by the sole or lead
managing Underwriter for any Underwritten Offering elected pursuant to a
Registration, the Company shall enter into a customary underwriting agreement
with the Underwriters for such offering, such agreement to be reasonably
satisfactory in substance and form to each Holder of Registrable Securities
participating in such offering and to contain such representations and
warranties by the Company and such other terms are generally prevailing in
agreements of that type, including, without limitation, indemnification and
contribution to the effect and to the extent provided in Section 5.
(b) HOLDERS OF REGISTRABLE SECURITIES TO BE PARTIES TO UNDERWRITING
AGREEMENT. The Holders of Registrable Securities to be distributed by
Underwriters in an Underwritten Offering contemplated by Section 2 shall be
parties to the underwriting agreement among the Company and such Underwriters
and may, at such Holders' option, require that any or all of the representations
and warranties by, and the other agreements on the part of, the Company to and
for the benefit of such Underwriters shall also be made to and for the benefit
of such Holders of Registrable Securities and that any or all of the conditions
precedent to the obligations of such Underwriters under such underwriting
agreement be conditions precedent to the obligations of such Holders of
Registrable Securities; PROVIDED, HOWEVER, that the Company shall not be
required to make any representations or warranties with respect to written
information specifically provided by a selling Holder for inclusion in the
Registration Statement. No Holder shall be required to make any representations
or warranties to, or agreements with, the Company or the Underwriters other than
representations, warranties or agreements regarding such Holder, such Holder's
Registrable Securities and such Holder's intended method of disposition.
(c) PARTICIPATION IN UNDERWRITTEN REGISTRATION. Notwithstanding
anything herein to the contrary, no Person may participate in any underwritten
registration hereunder unless such Person (i) agrees to sell its securities on
the same terms and conditions provided in any underwritten arrangements approved
by the Persons entitled hereunder to approve such arrangements and (ii)
accurately completes and executes in a timely manner all questionnaires, powers
of attorney, indemnities, custody agreements, underwriting agreements and other
documents reasonably required under the terms of such underwriting arrangements.
2.5 CONVERSIONS; EXERCISES. Notwithstanding anything to the contrary
herein, in order for any Registrable Securities that are issuable only upon the
exercise of conversion rights, to be included in any registration pursuant to
Section 2 hereof, the exercise of such conversion rights
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must be effected no later than immediately prior to the closing of any sales
under the Registration Statement pursuant to which such Registrable Securities
are to be sold.
3. REGISTRATION PROCEDURES.
3.1 OBLIGATIONS OF THE COMPANY. Whenever the Company is required to
effect the registration of the Registrable Securities under the Securities Act
pursuant to Section 2 of this Agreement, 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 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 Holder's
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 of the rules or
regulations thereunder;
(b) prepare and file with the SEC such amendments and supplements to
such Registration Statement and the Prospectus used in connection therewith as
may be necessary (i) to keep such Registration Statement effective (PROVIDED,
that the Company may discontinue any registration of its securities that are not
Registrable Securities, and, under the circumstances specified in Section
2.1(e), its securities that are Registrable Securities), and (ii) to comply with
the provisions of the Securities Act with respect to the disposition of all
Registrable Securities covered by such Registration Statement, in each case
until such time as all of such Registrable Securities 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 (but not before the expiration of the 90
day period referred to in Section 4(3) of the Securities Act and Rule 174
thereunder, if applicable);
(c) furnish, without charge, to each selling Holder of such
Registrable Securities and each Underwriter, if any, of the securities covered
by such Registration Statement,
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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 and Underwriter may reasonably request in order to
facilitate the public sale or other 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 each such selling Holder of Registrable
Securities and the Underwriters, if any, in connection with the offering and
sale of the Registrable Securities covered by such Registration Statement or
Prospectus);
(d) prior to any public offering 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 or the sole or lead managing
Underwriter, if any, may reasonably request to enable 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
jurisdictions 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;
(f) promptly notify Holders' Counsel, each Holder of Registrable
Securities covered by such Registration Statement and the sole or leading
managing Underwriter, if any: (i) when the Registration Statement, any
pre-effective amendment, the Prospectus or any prospectus supplement related
thereto or post-effective amendment 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
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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 (vii) of the Company's reasonable determination that a
post-effective amendment to a Registration Statement would be appropriate or
that there exists 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),
such 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 and each Underwriter, if
any, 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, any sole or lead managing Underwriter participating in
any disposition pursuant to such Registration Statement, Holders' Counsel and
any attorney, accountant or other agent retained by any such seller or any
Underwriter (each, an "Inspector" and, collectively, the "Inspectors"), all
financial and other records, pertinent corporate documents and properties of the
Company and any subsidiaries thereof as may be in existence at such time
(collectively, the "Records") as shall be necessary, in the opinion of such
Holders' and such Underwriters' respective 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 counsel and a "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 (and if such registration involves an Underwritten
Offering, dated the date of the closing under the underwriting agreement), 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 sole or leading managing Underwriter, if any, and to
12
the Majority Holders of the Registration, and furnish to each Holder
participating in the offering and to each Underwriter, if any, a copy of such
opinion and letter addressed to such Holder (in the case of the opinion) and
Underwriter (in the case of the opinion and the "cold comfort" letter);
(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 offering, and make available to its security
holders, as soon as reasonably practicable but no later than 90 days after the
end of any 12-month period, an earnings statement (i) commencing at the end of
any month in which Registrable Securities are sold to Underwriters in an
Underwritten Offering and (ii) commencing with the first day of the Company's
calendar month next succeeding each sale of Registrable Securities after the
effective date of a Registration Statement, which statement shall cover such
12-month periods, in a manner which satisfied the provisions of Section 11(a) of
the Securities Act and Rule 158 thereunder;
(k) if so requested by the Majority Holders of the Registration, use
its best efforts to cause all Common Shares constituting such Registrable
Securities to be listed (i) on each national securities exchange on which the
Company's securities are then listed or (ii) if securities of the Company are
not at the time listed on any national securities exchange (or if the listing of
Registrable Securities is not permitted under the rules of each national
securities exchange on which such Company's securities are then listed), on a
national securities exchange reasonably acceptable to the Majority Holders of
the Registration or the NASDAQ National Market System;
(l) keep each selling Holder of Registrable Securities advised as to
the initiation and progress of any registration under Section 2 hereunder;
(m) enter into and perform customary agreements (including, if
applicable, an underwriting agreement in customary form) and provide officers'
certificates and other customary closing documents;
(n) cooperate with each selling Holder of Registrable Securities and
each Underwriter 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 Underwriters (taking into account
the needs of the Company's businesses and the requirements of the marketing
process) in the marketing of Registrable Securities in any Underwritten
Offering;
(o) furnish to each Holder participating in the offering and the sole
or lead managing Underwriter, if any, without charge, at least one
manually-signed copy of the Registration Statement and any post-effective
amendments thereto, including financial statements and schedules, all documents
incorporated therein by reference and all exhibits (including those deemed to be
incorporated by reference);
13
(p) cooperate with the selling Holders of Registrable Securities and
the sole or lead managing Underwriter, if any, to facilitate the timely
preparation and delivery of certificates not bearing any restrictive legends
representing the Registrable Securities to be sold, and cause such Registrable
Securities to be issued in such denominations and registered in such names in
accordance with the underwriting agreement prior to any sale of Registrable
Securities to the Underwriters or, if not an Underwritten Offering, in
accordance with the instructions of the selling Holders of Registrable
Securities at least three business days prior to any sale of Registrable
Securities;
(q) if requested by the sole or lead managing Underwriter or any
selling Holder of Registrable Securities, immediately incorporate in a
prospectus supplement or post-effective amendment such information concerning
such Holder of Registrable Securities, the Underwriters or the intended method
of distribution as the sole or lead managing Underwriter or the selling Holder
of Registrable Securities reasonably requests to be included therein and as is
appropriate in the reasonable judgment of the Company, including, without
limitation, information with respect to the number of shares of the Registrable
Securities being sold to the Underwriters, the purchase price being paid
therefor by such Underwriters and with respect to any other terms of the
Underwritten Offering of the Registrable Securities to be sold in such offering;
make all required filings of such Prospectus supplement or post-effective
amendment as soon as notified of the matters to be incorporated in such
Prospectus supplement or post-effective amendment; and supplement or make
amendments to any Registration Statement if requested by the sole or lead
managing Underwriter of such Registrable Securities; and
(r) 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 SELLER INFORMATION. The Company may require each selling 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 sued only in connection with such 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
holding does not imply that such Holder will assist in meeting 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 an the Company of the
14
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
and meeting the requirements of Section 3.1(f).
4. INDEMNIFICATION; CONTRIBUTION
4.1 INDEMNIFICATION BY THE COMPANY. The Company agrees to indemnify and
hold harmless, to the fullest extent permitted by law, each Holder of
Registrable Securities, its 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, 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 of 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. The Company
shall also indemnify any Underwriters of the Registrable Securities, their
Agents and each Person who controls any such Underwriter (within the meaning of
the Securities Act) to the same extent as provided above with respect to the
indemnification of the Holders of Registrable Securities. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of any Person who may be entitled to indemnification pursuant to this
Section 5 and shall survive the transfer of securities by such Holder or
Underwriter.
15
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 relevant Company, its directors and
officers, each other Person who participates as an Underwriter in the offering
or sale of such securities of the Company and its Agents and each Person who
controls the Company or any such Underwriter (within the meaning of the
Securities Act) 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 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 or
Underwriter.
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
advice 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
16
party and reasonably shall have concluded that there may be one or more legal
defenses available to such indemnified party which are not available to the
indemnifying party. No indemnifying party shall be liable for any settlement of
any such claim or action effected without its written consent, which consent
shall not be unreasonably withheld. In addition, without the consent of the
indemnified party (which consent shall not be unreasonably withheld), no
indemnifying party shall be permitted to consent to entry of any judgment with
respect to, or to effect the settlement or compromise of any pending or
threatened action or claim in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified party is an actual or
potential party to such action or claim), unless such settlement, compromise or
judgment (1) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim, (2) does not include a statement
as to or an admission of fault, culpability or a failure to act, by or on behalf
of any indemnified party, and (3) does not provide for any action on the part of
any party other than the payment of money damages which is to be paid in full by
the indemnifying party.
4.4 CONTRIBUTION. If the indemnification provided for in Section 4.1 or
4.2 from the indemnifying party for any reason is unavailable (other than by
reason of exceptions provided therein), or is insufficient to hold harmless, an
indemnified party hereunder in respect of any Claim, then the indemnifying
party, in lieu of indemnifying such indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such Claim in
such proportion as is appropriate to reflect the relative fault of the
indemnifying party, on the one hand, and the indemnified party, on the other
hand, in connection with the actions which resulted 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 to such 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
17
Claims. No person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
4.5 OTHER INDEMNIFICATION. Indemnification similar to that specified in
the preceding Sections 4.1 and 4.2 (with appropriate modifications) shall be
given by the Company and each selling Holder of Registrable Securities with
respect to any required registration or other qualification of securities under
any Federal or state law or regulation of any governmental authority, other than
the Securities Act. The indemnity agreements contained herein shall be in
addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract.
4.6 INDEMNIFICATION PAYMENTS. The indemnification and contribution
required by this Section 4 shall be made by periodic payments of the amount
thereof during the course of any investigation or defense, as and when bills are
received or any expense, loss, damage or liability is incurred.
5. GENERAL
5.1 ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. The Company agrees that
it shall not effect or permit to occur any combination or subdivision of shares
which would adversely 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 REGISTRATION RIGHTS TO OTHERS. Other than as listed on Schedule 4.14
of the Purchase Agreement, the Company is not a party to any agreement (other
than this Agreement) with respect to its securities granting any registration
rights to any Person. If the Company shall at any time hereafter provide to any
holder of any securities of the Company rights with respect to the registration
of such securities under the Securities Act, such rights shall not be in
conflict with or adversely affect any of the rights provided in this Agreement
to the Holders.
5.3 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
amendment, modification, 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.
5.4 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
18
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.: Mr. Xxxxx Xxxxxx
Telecopy: 000-000-0000
Telephone: 000-000-0000
(ii) If to the Initial Holders, to:
Xxxxxxxxx, LLC
000 Xxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Mr. Xxxxxx Xxxxxxxxx
Telecopy: 212-758-5305
Telephone: 000-000-0000
With a copy to:
Xxxxxxx Xxxx & Xxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn.: Xxxx X. Neporent, Esq.
Telecopy: (000) 000-0000
Telephone: (000) 000-0000
(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 telecopied; on the next business day, if timely delivered to a
courier guaranteeing overnight delivery; and five days after being deposited in
the mail, if sent first class or certified mail, return receipt requested,
postage prepaid.
5.5 SUCCESSORS AND ASSIGNS. This Agreement shall inure to the benefit of
and be binding upon the parties hereto and their respective heirs, successors
and permitted assigns (including any permitted transferee of Registrable
Securities). Any Holder may assign to any permitted (as determined under the
Purchase Agreement transferee of its Registrable Securities
19
(other than a transferee that acquires 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 holding such Registrable Securities, such permitted transferee
shall automatically be entitled to receive the benefits of and be conclusively
deemed to have agreed to be bound by and to perform all of the terms and
provisions of this Agreement as if it were a party hereto (and shall, for all
purposes, be deemed a Holder under this Agreement). If the Company shall so
request, any heir, successor or permitted assign (including any permitted
transferee) shall agree in writing to acquire and hold 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 entity's 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.
5.6 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 which counterparts, taken together, shall constitute
one and the same instrument.
5.7 DESCRIPTIVE HEADINGS, ETC. The headings in this Agreement are for
convenience of reference only and shall not limit or otherwise affect the
meaning of terms contained herein. Unless the context of this Agreement
otherwise requires: (1) words of any gender shall be deemed to include each
other gender; (2) words using the singular or plural number shall also include
the plural or singular number, respectively; (3) the words "hereof", "herein"
and "hereunder" and words of similar import when used in this Agreement shall
refer to this Agreement as a whole and not to any particular provision of this
Agreement, and Section and paragraph references are to the Sections and
paragraphs of this Agreement unless otherwise specified; (4) the word
"including" and words of similar import when used in this Agreement shall mean
"including, without limitation," unless otherwise specified; (5) "or" is not
exclusive; and (6) provisions apply to successive events and transactions.
5.8 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 ever 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.
5.9 GOVERNING LAW. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York (without giving effect to the
conflict of laws principles thereof).
20
5.10 REMEDIES; SPECIFIC PERFORMANCE. With respect to the occurrence of a
Delay Period (other than a Delay Period resulting from a material breach by the
Company of its obligations under this Agreement), the payments set forth in
Section 2.1 shall be the Holders' exclusive remedy. Except as provided in the
preceding sentence, the parties hereto acknowledge that money damages would not
be an adequate remedy at law if any party fails to perform in any material
respect any of its obligations hereunder, and accordingly agree that each party,
in addition to any other remedy to which it may be entitled at law or in equity,
shall be entitled to seek to compel specific performance of the obligations of
any other party under this Agreement, without the posting of any bond, in
accordance with the terms and conditions of this Agreement in any court of the
United States or any State thereof having jurisdiction, and if any action should
be brought in equity to enforce any of the provisions of this Agreement, none of
the parties hereto shall raise the defense that there is an adequate remedy at
law. Except as otherwise provided by law, a delay or omission by a party hereto
in exercising any right or remedy accruing upon any such breach shall not impair
the right or remedy or constitute a waiver of or acquiescence in any such
breach. No remedy shall be exclusive of any other remedy. All available
remedies shall be cumulative.
5.11 ENTIRE AGREEMENT. This Agreement is intended by the parties as a
final express of their agreement and intended to be a complete an 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.
5.12 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 delivered 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 or 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.
5.13 CONSENT TO JURISDICTION. Each party to this Agreement hereby
irrevocably and unconditionally agrees that any legal action, suit or proceeding
arising out of or relating to this Agreement or any agreements or transactions
contemplated hereby may be brought in any federal court of the Southern District
of New York or any state court located in New York County, State of New York,
and hereby irrevocably and unconditionally expressly submits to the personal
jurisdiction and venue of such courts for the purposes thereof and hereby
irrevocably and unconditionally waives any claim (by way of motion, as a defense
or otherwise) of improper venue, that it is not subject personally to the
jurisdiction of such court, that such courts are an inconvenient forum or that
this Agreement or the subject matter may not be enforced in or by such court.
Each party hereby irrevocably and unconditionally consents to the service of
process of any of the aforementioned courts in any such action, suit or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to the address set forth or provided for
21
in Section 5.5 of this Agreement, such service to become effective 10 days after
such mailing. Nothing herein contained shall be deemed to affect the right of
any party to serve process in any manner permitted by law or commence legal
proceedings or otherwise proceed against any other party in any other
jurisdiction to enforce judgments obtained in any action, suit or proceeding
brought pursuant to this Section.
5.14 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.
5.15 NO INCONSISTENT AGREEMENTS. The Company will not hereafter enter into
any agreement which is inconsistent with the rights granted to the Holders in
this Agreement.
5.16 CONSTRUCTION. Each of the parties hereto acknowledges that it has had
the benefit of legal counsel of its own choice and has been afforded an
opportunity to review this Agreement with its legal counsel and that this
Agreement shall be construed as if jointly drafted by the parties.
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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 XXXXXXXXX L.L.C.:
By: ___________________________ By: ___________________________
Name: Name:
Title: Title:
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