Exhibit 10.65
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AMERICAN SKIING COMPANY
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SECURITIES EXCHANGE AGREEMENT
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Dated as of December 29, 1997
Re: Common Stock, Par Value $.01
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TABLE OF CONTENTS
SECTION 1. DEFINITIONS................................................... 1
1.2 Rules of Construction.............................................. 3
SECTION 2. PURCHASE AND SALE OF THE SECURITIES........................... 3
2.1 Purchase and Sale of Shares....................................... 3
2.2 Exchange.......................................................... 3
2.3 Closing........................................................... 3
2.4 Transfer Restrictions............................................. 3
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER............... 4
3.1 Authority Relative to this Agreement.............................. 4
3.2 Exchange of Shares................................................ 4
3.3 Investment Intent................................................. 4
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY................. 4
4.1 Corporate Organization and Authority of the Company
and its Subsidiaries............................................. 4
4.2 Authorized Capital Stock.......................................... 5
4.3 Sale is Legal and Authorized...................................... 5
4.4 Governmental Consent.............................................. 5
4.5 Common Stock Legends.............................................. 6
4.6 Business Operations and Other Information: Financial Condition... 6
4.7 Broker's or Finder's Commission................................... 6
SECTION 5. CLOSING CONDITIONS............................................ 7
5.1 Purchaser's Obligations........................................... 7
5.2 Company's Obligations............................................. 7
SECTION 6. MISCELLANEOUS................................................. 8
6.1 Notice: Payments.................................................. 8
6.2 Governing Law..................................................... 9
6.3 Severability...................................................... 9
6.4 Survival.......................................................... 9
6.5 Successors and Assigns............................................ 9
6.6 Amendment......................................................... 9
6.7 Counterparts..................................................... 9
6.8 Specific Performance.............................................. 9
6.9 Headings and Table of Contents................................... 10
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American Skiing Company
P.O. Box 450
Bethel, Maine 04217
SECURITIES EXCHANGE AGREEMENT
Common Stock $0.01 Par Value
Dated as of December 29, 1997
To the Purchaser which is a signatory to this Agreement
Ladies and Gentlemen:
The undersigned, American Skiing Company, a Maine corporation (the
"Company"), hereby agrees with you as follows:
SECTION 1. DEFINITIONS
For all purposes of this Agreement the following terms shall have the
meaning set forth herein or elsewhere in the provisions hereof:
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this definition,
"control" (including, with correlative meanings, the terms "controlling,"
"controlled by" and "under common control with"), as used with respect to any
Person, shall mean the possession, directly or indirectly, of the power to
direct or cause the direction of the management or policies of such Person,
whether through the ownership of voting securities, by agreement or
otherwise; provided, however, that beneficial ownership of 25% or more of the
voting securities of a Person shall be deemed to be control.
"Agreement" means this Securities Exchange Agreement, as amended from
time to time.
"Common Stock" means the common stock of American Skiing company, $0.01
par value.
"ASC" or "Company" means American Skiing Company, a Maine corporation.
"Board of Directors" means the Board of Directors of the Company or any
authorized committee of the Board of Directors.
"Board Resolution" means a resolution of the Board of Directors of the
company set forth in an Officers' Certificate delivered to the Purchaser.
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"Business Day" shall mean any day other than a Saturday, Sunday or other
day on which banks are authorized to be closed in the States of Maine and New
York.
"Closing" shall have the meaning given to such term in Section 2.6
hereof.
"Closing Date" shall have the meaning given to such term in Section 2.6
hereof.
"Common Stock" shall mean the common stock of the Company, $0.01 par
value.
"Exchange Act" means the Securities Exchange act of 1934, as amended.
"Exchanged Shares" means all of the issued outstanding shares of Common
Stock of ASC East, Inc., a Maine corporation owned by the Purchaser signatory
to this Agreement, as described in Exhibit A attached hereto.
"Initial Public Offering" means the initial public offering of
14,750,000 shares of the Company's Common Stock completed November 6, 1997
and settled November 12, 1997 as more particularly described in the
Prospectus.
"IPO Common Stock" means Common Stock issued pursuant to the Initial
Public Offering.
"Officer" means, with respect to the Company, the Chairman of the Board,
the Chief Executive Officer, the President, the Chief Administrative Officer,
the Chief Financial Officer, the Treasurer, any Assistant Treasurer, the
Controller, the Secretary, any Assistant Secretary or any Vice President of
such Person.
"Person" 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).
"Prospectus" means the Prospectus dated November 6, 1997 relating to the
Company's offering of 14, 750,000 shares of its Common Stock.
"Purchaser" shall mean and individually or collectively, as the case may
be, refer to any purchaser or purchasers signatory hereto.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of the date hereof, by and among the Company and the Purchaser as
such agreement may be amended, modified or supplemented from time to time.
"SEC" means the Securities and Exchange Commission.
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"Securities" means and alternatively refers to the Common Stock to be
issued to the Purchaser as described in Section 2.1 hereof.
"Securities Act" means the Securities Act of 1933, as amended.
1.2 Rules of Construction. Unless the context otherwise requires:
(1) a term has the meaning assigned to;
(2) an accounting term not otherwise defined shall be construed in
accordance with general accepted accounting principles, consistently
applied
(3) words in the singular include the plural, and the plural
include the singular;
(4) provisions apply to successive events and transactions; and
(5) references to sections of or rules under the Securities Act shall
be deemed to include substitute, replacement or successor sections or rules
adopted by the SEC from time to time.
SECTION 2. PURCHASE AND SALE OF THE SECURITIES
2.1 Exchange of Shares. The Company hereby agrees to issue, sell and
deliver 615,022 shares of its Common Stock, $0.01 par value ("Securities") to
the Purchaser and the Purchaser agrees to purchase such Shares by
transferring to the Company all the issued and outstanding common stock of
ASC East, Inc., a Maine corporation owned by the Purchaser as more
particularly depicted in Exhibit A ("Exchanged Securities"). The terms
limitations and relative rights of the Common Stock are set forth in the
Prospectus related to the initial public offering of the Company's Common
Stock dated November 6, 1997, attached hereto as Exhibit A.
2.2 Closing. The Closing of the purchase and sale of the Securities
will take place at the Company's offices in Bethel, Maine 30 days following
the execution and deliver of this Agreement. At Closing, the Company will
deliver certificates representing the applicable Securities purchased
hereunder against delivery by the Purchaser of certificates for the Exchanged
Shares duly enclosed for transfer, or accompanied by stock powers duly
executed in blank. The Securities will be issued to the Purchaser on the
Closing Date and registered in the name of the Purchaser or the Purchaser's
nominee, as applicable.
2.3. Transfer Restrictions. Until such time as the Registration
Statement described in the Registration Rights Agreement has been declared
effective by the SEC, the Purchaser shall not sell, transfer or assign any
Security other than: (i) to an Affiliate of the Purchaser, (ii) to a
Qualified Institutional Buyer or Accredited Investor (as such terms are
defined in the Securities Act), or (iii) upon receipt for an opinion of
counsel acceptable to the Company that the Securities may be sold pursuant to
an exemption under the Securities Act.
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SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER.
Each Purchaser hereby represents and warrants for and with respect to
itself (and not with respect to any other Purchaser) as follows:
3.1 Authority Relative to this Agreement. The Purchaser has the
requisite power to enter into this Agreement and to carry out its obligations
hereunder. The execution an delivery of this Agreement and the Registration
Rights Agreement and the consummation of the transactions contemplated hereby
and thereby have been duly authorized by all necessary actions on the part of
the Purchaser. This Agreement and the Registration Rights Agreement, upon
its execution, each constitute a valid and binding obligation of the
Purchaser, enforceable in accordance with its terms except as enforcement may
be limited by bankruptcy, insolvency or other similar laws affecting the
enforcement of creditors' rights generally and except that the availability
of equitable remedies, including specific performance, is subject to the
discretion of the court before which any proceeding therefor may be brought.
No other proceedings on the part of the Purchaser are necessary to authorize
this Agreement or the Registration Rights Agreement and the transactions
contemplated hereby and thereby.
3.2 Exchange of Shares. The Purchaser owns the Exchanged Shares
beneficially and of record free and clear of all liens, encumbrances and
restrictions of any nature whatsoever, and at Closing will transfer the
Exchanged Shares to the Company in the manner described in Section 2.3
hereof, free and clear of all liens, encumbrances and restrictions.
3.3 Investment Intent. The Purchaser is acquiring the Securities for
investment for its own (or an Affiliate's) account, not as a nominee or agent
and not with a view to the distribution of any part thereof in violation of
law. The Purchaser has no intent of selling, granting any participation in,
or otherwise distributing the Securities, other than to its Affiliates prior
to the effective date of the Registration.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants that:
4.1 Corporate Organization and Authority of the Company and
Subsidiaries. The Company (a) is a corporation duly organized, validly
existing and in good standing under the laws of the State of Maine; (b) has
all requisite power and authority and all necessary licenses and permits to
own and operate its Properties and to carry on its business as now conducted
and as presently proposed to be conducted, except as would not have a
material adverse effect on the Company; and (c) is duly licensed or qualified
and is authorized to do business, in and is in good standing as a foreign
corporation in, each jurisdiction where the character of its Properties or
the nature of its activities makes such licensing or qualification necessary.
4.2 Authorized Capital Stock. As of the date hereof the authorized
outstanding Capital Stock of the Company is fully and accurately described in
the Prospectus, and all of the
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issued shares of Capital Stock of the Company have been duly and validly
authorized and issued and are fully paid and non-assessable.
4.3 Sale is Legal and Authorized.
(a) The offer, issuance, sale and delivery of the Securities and
compliance by the Company with all of the provisions of this Agreement and
the Registration Rights Agreement (i) are within the corporate powers of
the Company; (ii) are legal and will not violate, conflict with, result in
any breach of, or any of the provisions of, constitute a default under
(upon notice or lapse of time or both), or result in the creation of any
Lien upon any Property of the Company or any of its Affiliates under the
provisions of its articles of incorporation, by-laws, or any order of any
court or governmental authority or any provision of any indenture,
mortgage, contract, instrument or other agreement to which the Company or
any of its Affiliates is a party or by which it may be bound; and (iii)
have been duly authorized by all necessary corporate action on the part of
the Company.
(b) This Agreement has been duly and validly executed and delivered
by the Company. This Agreement constitutes the legal, valid and binding
obligation, contract and agreement of the Company, enforceable in
accordance with its terms, except as enforcement of such terms may be
limited by any applicable bankruptcy, insolvency, reorganization or other
similar laws relating to or affecting the enforcement of creditors' rights
generally and by general equitable principles, regardless of whether such
enforceability is considered in a proceeding in equity or at law.
(c) The Common Stock will conform to the terms contained in the
Company's Articles of Incorporation. The Common Stock and the issuance of
the Common Stock in the exchange transaction described herein have been
duly authorized by the Company.
4.4 Governmental Consent. Neither the nature of the Company nor of any
Affiliate, nor of any of their respect businesses or properties, nor any
relationship between the Company or any Affiliate and any other Person, nor any
circumstance in connection with the execution and delivery of this Agreement or
the offer, issue, sale or delivery of the Securities is such as to require a
consent, approval or authorization of, or filing, registration (other than
registration of the Common Stock under the Securities Act as described in the
Registration Rights Agreement), or qualification with, any governmental
authority on the part of the Company as a condition to the execution an delivery
of this Agreement or the offer, issue, sale or delivery of the Securities.
4.5 Common Stock Legends. (a) The Common Stock, as and when issued by the
Company, will be validly issued and outstanding, fully paid and non-assessable
and will not be subject to any pre-emptive or similar right, and the holder of
each Security will receive good and valid title to the Common Stock free an
clear of any lien or encumbrance, except such as may have been created by the
Purchaser and such restrictions on transfer as may be imposed under this
Agreement, United States federal or state securities or blue sky laws.
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(b) Each of the Company's certificates representing the Securities,
(prior to registration, pursuant to the Registration Rights Agreement, and
any certificates issued in exchange therefore or substitution thereof)
shall bear a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED. SUCH
SECURITIES MAY NOT BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED, PLEDGED
OR HYPOTHECATED EXCEPT PURSUANT TO (i) A REGISTRATION STATEMENT WITH
RESPECT TO SUCH SECURITIES WHICH IS EFFECTIVE UNDER SUCH ACT, (ii)
RULE 144 UNDER SUCH ACT, OR (iii) UPON RECEIPT OF AN OPINION OF
COUNSEL ACCEPTABLE TO THE COMPANY THAT THE SECURITIES MAY BE SOLD
PURSUANT TO ANY OTHER EXEMPTION FROM REGISTRATION UNDER SUCH ACT
RELATING TO THE DIPSIOTION OF SECURITIES.
4.6 Business Operations and Other Information: Financial Condition.
(a) Since the date of the Initial Public Offering the Company and its
Affiliates have filed all reports required to be filed with the SEC, pursuant
to the Exchange Act, (collectively the "SEC Reports"). The SEC Reports were
prepared in accordance with the requirements of the Securities Act and the
Exchange Act, as the case may be; none of such SEC Reports, as of their
respective dates, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary
in order to make the statement therein, in light of the circumstances under
which they were made, not misleading. The Financial Statements (as defined
below) included in the SEC Reports present fairly the financial position of
ASC and its Affiliates identified herein as of the respective dates thereof,
and the results of their operations, changes in stockholders equity and their
cash flows for the respective periods set forth therein, all in conformity
with GAAP consistently applied during the periods involved.
4.7 Broker's or Finder's Commission. No broker's or finder's fee or
commission will be payable by the Company with respect to the issuance and
sale of the Securities. The Company agrees to indemnify the Purchaser and
hold it harmless against any loss, cost, claim or liability (including
without limitation, reasonable attorneys' fee sand disbursements for the
investigation and defense of claims) asserted against Purchaser arising out
of or relating to any such actual or alleged for commission.
SECTION 5. CLOSING CONDITIONS.
5.1 Each Purchaser's obligation to purchase the Securities and consummate
the exchange of the Exchanged Securities on the Closing Date pursuant to Section
2 of this Agreement shall be subject to the following conditions precedent.
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(a) Representations and Warranties True. The representations and
warranties of the Company contained in Section 4 shall be true in all
material respects on the Closing Date with the same effect as though made
on and as of that date.
(b) Compliance with this Agreement. The Company shall have performed
and complied with all agreements and conditions contained herein which are
required to be performed or complied with by the Company on or before the
Closing date.
(c) Officers' Certificate. The Company shall have delivered to the
Purchaser an Officer's Certificate dated the Closing Date certifying that
the conditions specified in this Section 5.1 have been fulfilled.
(d) Corporate Existence and Authority. The Purchaser shall have
received, in form and substance reasonably satisfactory to the Purchaser,
such documents and evidence with respect to the Company as the Purchaser
may reasonably request in order to establish the existence and good
standing of the Company and the authorization of the transactions
contemplated by this Agreement.
(e) Proceedings Satisfactory. All proceedings taken in connection
with the sale of the Securities to be sold by the Company to the Purchaser
and all documents and papers relating thereto shall be reasonably
satisfactory to the Purchaser and the Purchaser shall have received copies
of such documents and papers as the purchaser may reasonably request in
connection therewith all in form and substance reasonably satisfactory to
the Purchaser.
5.2 The Company's obligation to issue the Securities and consummate
the exchange of the Exchanged Securities on the Closing Date pursuant to Section
2 of this Agreement shall be subject to the following conditions precedent.
(a) Representations and Warranties True. The representations and
warranties of the Purchaser contained in Section 3 shall be true in all
material respects on the Closing Date with the same effect as though made
on and as of that date.
(b) Compliance with this Agreement. The Purchaser shall have
performed and complied with all agreements and conditions contained herein
which are required to be performed or complied with by the Purchaser on or
before the Closing date.
(c) Officers' Certificate. The Purchaser shall have delivered to the
Company an Officer's Certificate dated the Closing Date certifying that the
conditions specified in this Sections 5.2 have been fulfilled.
(d) Corporate Existence and Authority. The Company shall have
received, in form and substance reasonably satisfactory to the Company,
such documents and evidence with respect to the Purchaser as the Company
may reasonably request in order to evidence the authorization of the
transactions contemplated by this Agreement.
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(e) Proceedings Satisfactory. All proceedings taken in connection
with the sale of the Securities to be issued by the Company to the
Purchaser and all documents and papers relating thereto shall be reasonably
satisfactory to the Company and the Company shall have received copies of
such documents and papers as the Company may reasonably request in
connection therewith all in form and substance reasonably satisfactory to
the Company.
SECTION 6. MISCELLANEOUS.
6.1 Notices: Payments. (a) All notices and other communications under
this Agreement or in respect of the Securities shall be given or made in writing
and telecopies or mailed by registered airmail, return receipt requested,
postage prepaid, air courier, or delivered personally to the intended recipient,
(1) If to the Purchaser, to:
Xx. Xxx Xxxxxxxx
Xxxx, Xxxxxxx & Co., Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ms. Xxxxxxxx Xxxxxxxx
Sunamerica Investments, Inc.
000 xxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xx. Xxx Xxxxx
Fidelity Management & Research
0 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
(2) If to the Company, to
American Skiing Company
Sunday River Access Road
P.O. Box 450
Bethel, Maine 04217
Attn: Xxxxxxxxxxx X. Xxxxxx
Tel: (000) 000-0000
Fax: (000) 000-0000
(b) All such notices and other communications shall be deemed to have
been duly given when transmitted by telecopy, subject to telephone
confirmation of receipt, or
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when personally delivered or, in the case of a mailed notice, ten days
after being duly deposited in the mails, in each case given or addressed
as aforesaid.
6.2 Governing Law. This Agreement and all other documents
contemplated hereby shall be deemed to be contracts made under, and shall
be construed in accordance with the governed by the laws of the State of
Maine (without reference to the conflicts of laws principles thereof) and
the laws of the United States of America.
6.3 Severability. If any provision of this Agreement is held to be
invalid or unenforceable by any judgment of a tribunal of competent
jurisdiction, the remainder of this Agreement shall not be affected by such
judgment, and the Agreement shall be carried out as nearly as possible
according to its original terms and intent.
6.4 Survival. All representations, warranties and covenants made by the
Company herein or in any certificate or other instrument delivered or other
instrument delivered by it or on its behalf under this Agreement shall be
considered to have been relied upon by the Purchaser and shall survive the
delivery of the Securities regardless of any investigation made by the Purchaser
or on the Purchaser's behalf. All statements in any such certificate or other
instrument shall constitute warranties and representations by the Company
hereunder.
6.5 Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the successors and assigns of each of the parties
and holders of the Securities. The provisions of this Agreement are for the
benefit of, and shall be binding upon, each successive holder, from time to
time, of any of the Securities issued under this Agreement, and shall be
enforceable by and against any such holder, whether or not any express
assignment to such holder of rights, or delegation and assumption or acceptance
by a subsequent holder of rights, or delegation and assumption or acceptance by
a subsequent holder of the Securities or obligations and limitations, under this
Agreement has been made by you or your successor or assign of any holder of
Securities.
6.6 Amendment Prior to the Closing, this Agreement may be amended
and the observance of any term of this Agreement may be waived, with (and
only with) the written consent of the Company and the Purchaser.
6.7 Counterparts. This Agreement may be executed in any number of
counterparts, each executed counterpart constituting an original but all
together only one Agreement.
6.8 Specific Performance. The parties hereto recognize and agree
that if for any reason any of the material provisions of this Agreement are
not performed in accordance with their specific terms or are otherwise
breached, immediate and irreparable harm or injury would be caused for
which money damages would not be an adequate remedy. Accordingly, each
party agrees that, in addition to any other available remedies, the other
party shall be entitled to an injunction restraining any violation or
threatened violation of the provisions of this Agreement. In the event
that any action should be
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brought in equity to enforce the provision of the Agreement, no party
will allege, and each party hereby waives the defense, that there is an
adequate remedy at law.
6.9 Headings and Table of Contents. The headings of the sections
of this Agreement and Table of Contents are inserted for purposes of
convenience only and shall not be construed to affect the meaning or
construction of any of the provisions hereof.
The execution by the parties below shall constitute a contract between
such parties for the uses and purposes herein above set forth.
Dated by the parties below shall constitute a contract between such
parties for the uses and purposes herien above set forth.
Dated as of the day and year first above written.
AMERICAN SKIING COMPANY BEAR, XXXXXXX CO., INC.
By: /s/ Xxxxxxxxxxx X. Xxxxxx By: /s/ Xxxx X. Xxxx
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Its Senior Vice President Its Senior Managing Director
SUNAMERICA INVESTMENTS, INC.
By: /s/ Xxxxxxxx Xxxxxxxx
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Its Authorized Agent
FIDELITY MANAGEMENT & RESEARCH
By: /s/ Xxxxxx X. Xxxxx
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Its Vice President
Manufacturers Life Hy
Portfolio Manager
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EXHIBIT A
Holder Outstanding Shares Held
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Bear, Xxxxxxx & Co., Inc. 5,000 (Bear Xxxxxxx)
Sunamerica Investments, Inc. 33,632 (Sunamerica)
Fidelity Management & Research 500 (Fidelity)
A
