SECURITIES PURCHASE AGREEMENT
AMONG
AMERICAN SKIING COMPANY
AMERICAN SKIING COMPANY RESORT PROPERTIES, INC.
AND
OAK HILL CAPITAL PARTNERS, L.P.
JULY 31, 2000
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EXECUTION COPY
SECURITIES PURCHASE AGREEMENT
SECURITIES PURCHASE AGREEMENT, dated July 31, 2000 (this "AGREEMENT"), among
AMERICAN SKIING COMPANY, a Delaware corporation (the "COMPANY"), AMERICAN SKIING
COMPANY RESORT PROPERTIES, INC., a Maine corporation and a wholly owned
subsidiary of the Company ("ASCRP"), and OAK HILL CAPITAL PARTNERS, L.P., a
Delaware limited partnership (the "PURCHASER").
W I T N E S S E T H:
WHEREAS, the Company wishes to grant to the Purchaser, and the
Purchaser wishes to purchase from the Company, warrants to purchase six million
(6,000,000) validly issued, fully paid and nonassessable shares of common stock,
par value $.01 per share (the "COMPANY COMMON STOCK"), of the Company (the
"WARRANT," in the form attached hereto as EXHIBIT A), at an exercise price of
$2.50 per share (subject to adjustment pursuant to the terms of the Warrant),
upon the terms and subject to the conditions set forth herein (including the
Company's receipt of the Waiver, as defined hereinafter);
WHEREAS, the Warrant will be issued as soon as the Company has received
the Waiver;
WHEREAS, if the Waiver is not received within sixty (60) days from the
date hereof, the Purchaser will instead purchase ASCRP Common Stock, upon the
terms and subject to the conditions set forth herein;
WHEREAS, the boards of directors of the Company and ASCRP have approved
this Agreement and the Warrant and the Amendment (the "AMENDMENT TO THE
STOCKHOLDERS' AGREEMENT") to the Stockholders' Agreement, dated as of August 9,
1999 (the "STOCKHOLDERS' AGREEMENT"), among the Company, the Purchaser, Leslie
B. Otten and the other parties thereto;
NOW, THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
Company, ASCRP and the Purchaser hereby agree as follows:
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ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS. As used in this Agreement, and unless the context
requires a different meaning, the following terms shall have the meanings set
forth below:
"AFFILIATE" means, with respect to any specified Person, any other
Person that directly, or indirectly, through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person.
"AGREEMENT" means this Agreement as the same may be amended,
supplemented or modified in accordance with the terms hereof.
"AMENDMENT TO THE STOCKHOLDERS' AGREEMENT" has the meaning assigned to
such term in the recitals to this Agreement.
"ASC CREDIT AGREEMENT" means the Amended, Restated and Consolidated
Credit Agreement, dated as of October 12, 1999, among the Company, Bank Boston,
N.A. (as agent) and the other lenders party thereto, as amended to date.
"ASCRP" has the meaning assigned to such term in the recitals to this
Agreement.
"ASCRP COMMON STOCK" means the common stock, par value $.01 per share,
of ASCRP.
"ASCRP CREDIT AGREEMENT" means the Second Amended and Restated Credit
Agreement dated as of the date hereof among ASCRP, Fleet National Bank (as
agent), the Purchaser and the other lenders thereto.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day
on which commercial banks in the State of New York are authorized or required by
law or executive order to close.
"CLOSING" has the meaning assigned to such term in Section 2.3.
"CLOSING DATE" has the meaning assigned to such term in Section 2.3.
"COMMISSION" means the Securities and Exchange Commission or any
similar agency then having jurisdiction to enforce the Securities Act.
"COMPANY" has the meaning assigned to such term in the recitals to this
Agreement.
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"COMPANY COMMON STOCK" has the meaning assigned to such term in the
recitals to this Agreement.
"DATE OF ISSUANCE" has the meaning assigned to such term in Section 2.2
"ENCUMBRANCE" means any security interest, pledge, mortgage, lien,
charge or encumbrance, but excluding Permitted Encumbrances.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"GAAP" means generally accepted accounting principals applied on a
consistent basis.
"GOVERNMENTAL AUTHORITY" means any United States federal, state, local,
supranational or any foreign government, governmental, regulatory or
administrative authority, agency or commission or any court, tribunal, or
judicial or arbitral body.
"GOVERNMENTAL ORDER" means any order, writ, judgment, injunction,
decree, stipulation, determination or award entered by or with any Governmental
Authority.
"LAW" means any federal, state, local or foreign statute, law,
ordinance, regulation, rule, code, order, other requirement or rule of law.
"MATERIAL ADVERSE EFFECT" means any circumstance, change in, or effect
on the Company, any Company Subsidiary or their businesses or any resort
location that, individually or in the aggregate with any other circumstances,
changes in, or effects on, the Company, any Company Subsidiary or their
businesses or any resort location is, or is reasonably expected to be,
materially adverse to the business of the Company and the Company Subsidiaries,
taken as a whole, or the financial condition, results of operations, prospects,
assets or properties of the Company and the Company Subsidiaries, taken as a
whole, except for any changes or effects principally resulting from or
principally arising in connection with (i) any occurrence or condition affecting
the leisure industry generally or (ii) any changes in general economic
conditions.
"NYSE" means the New York Stock Exchange.
"PERMITTED ENCUMBRANCES" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall have
been commenced or is reasonably expected to commence: (a) liens for taxes,
assessments and governmental charges or claims that are not yet delinquent or
that are being contested in good faith by appropriate proceedings promptly
instituted and diligently conducted; provided, that, any reserve or other
appropriate provision as shall be required in conformity with GAAP shall have
been made therefor; (b) Encumbrances imposed by
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law, such as materialmen's, mechanics', carriers', workmen's and repairmen's
liens and other similar liens arising in the ordinary course of business; (c)
pledges or deposits to secure obligations under workers' compensation laws or
similar legislation or to secure public or statutory obligations or other
obligations of a like nature incurred in the ordinary course of business; (d)
minor survey exceptions, reciprocal easement agreements and other customary
encumbrances on title to real property that (i) were not incurred in connection
with any indebtedness, (ii) do not render title to the property encumbered
thereby unmarketable and (iii) do not, individually or in the aggregate,
materially adversely affect the value or use of such property for its current
and anticipated purposes; (e) Encumbrances permitted under any of the following
agreements of the Company and/or any Company Subsidiary (any Encumbrance which
is permitted under any of the following as to the Company or any Company
Subsidiary shall be permitted as to all Company Subsidiaries and the Company for
purposes hereof): (i) the ASC Credit Agreement, (ii) the Indenture dated as of
June 28, 1996, as amended, relating to the Company's Series A and B 12% Senior
Subordinated Notes due 2006, (iii) the ASCRP Credit Agreement and (iv) the
Amended Loan and Security Agreement dated as of September 30, 1998 and as it may
be further amended from time to time with Textron Financial Corporation; (g)
precautionary liens filed by lessors with respect to leased equipment; (h) any
single or series of related Encumbrances which are not in excess of $50,000 and
do not materially impair the value or use of the property subject thereto or the
operation of the Company's or ASCRP's, as the case may be, business as currently
conducted; and (i) Encumbrances listed on the UCC searches disclosed in Section
1.01(a) of the Disclosure Schedule attached to the Preferred Stock Subscription
Agreement dated July 9, 1999 among the Company, the Purchaser and the other
parties signatory thereto.
"PERSON" means any individual, firm, corporation, partnership, limited
liability company, trust, incorporated or unincorporated association, joint
venture, joint stock company, Governmental Authority or other entity of any
kind.
"PURCHASER" has the meaning assigned to such term in the recitals to
this Agreement.
"SEC" means the United States Securities and Exchange Commission.
"SEC FILINGS" means all forms, reports and documents required to be
filed by it with the SEC since the Company's initial public offering on November
6, 1997.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the Commission thereunder.
"SHARES" has the meaning assigned to such term in Section 2.2 of this
Agreement.
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"STOCKHOLDERS' AGREEMENT" has the meaning assigned to such term in the
recitals to this Agreement.
"SUBSIDIARIES" of any Person means any corporation, partnership, joint
venture, limited liability company, trust, estate or other Person of which (or
in which), directly or indirectly, more than 50% of (a) the issued and
outstanding capital stock having ordinary voting power to elect a majority of
the board of directors of such corporation (irrespective of whether at the time
capital stock of any other class or classes of such corporation shall or might
have voting power upon the occurrence of any contingency), (b) the interest in
the capital or profits of such partnership, joint venture or limited liability
company or other Person or (c) the beneficial interest in such trust or estate
is at the time owned by such first Person, or by such first Person and one or
more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries.
"WAIVER" means the consent required pursuant to the ASC Credit
Agreement to permit the Company's issuance of the Warrant or the Company's
determination that such consent is not or is no longer required.
"WARRANT" has the meaning assigned to such term in the recitals to this
Agreement.
ARTICLE 2
PURCHASE AND SALE OF SECURITIES
2.1 PURCHASE AND SALE OF SECURITIES. Subject to the terms and
conditions set forth herein, the Purchaser agrees to purchase, and the Company
(subject to its receipt of the Waiver) and ASCRP agree to issue and sell, the
securities described below.
2.2 ISSUANCE OF SECURITIES; DELIVERY. On the earlier of the Company's
receipt of the Waiver and September 29, 2000 (the "DATE OF ISSUANCE"):
(i) if the Waiver has been received, the Company shall issue the
Warrant to the Purchaser; and
(ii) if the Waiver has not been received, ASCRP shall issue to the
Purchaser 17 shares of ASCRP Common Stock (the "SHARES").
The Company or ASCRP (as applicable) shall on the Date of Issuance deliver the
securities being issued by it hereunder to the Purchaser.
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2.3 PURCHASE PRICE. The aggregate purchase price to be paid by the
Purchaser for the Warrant or the Shares to be purchased, as the case may be, is
$2,000,000 in cash, payable by wire transfer of immediately available funds,
upon the closing of the Securities Purchase Agreement (the "CLOSING") which will
take place on July 31, 2000 (the "CLOSING DATE"). Such amount will be paid upon
the Closing to ASCRP.
2.4 Option to Exchange. If the Purchaser receives Shares on the Date of
Issuance but the Company thereafter receives the Waiver, the Purchaser shall
have the right, at any time from and after the Company's receipt of the Waiver
to the end of the Exercise Period (as defined in the Warrant), to exchange the
Shares for the Warrant.
ARTICLE 3
REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE COMPANY
AND ASCRP
As an inducement to the Purchaser to enter into this Agreement, the Company and
ASCRP each hereby represents and warrants to the Purchaser as follows:
3.1 ORGANIZATION, AUTHORIZATION AND QUALIFICATION OF THE COMPANY AND
ASCRP. Each of the Company and ASCRP is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation or organization, and each of the Company and ASCRP has all
necessary corporate power and authority to enter into this Agreement, to carry
out its obligations hereunder and to consummate the transactions contemplated
hereby. Each of the Company and ASCRP is duly qualified to do business and is in
good standing in each jurisdiction in which (x) it owns or leases properties
material to its operations or (y) the operation of its business makes such
qualification necessary, except, with respect to clause (y) above, to the extent
that the failure to be so qualified would not, individually or in the aggregate,
have a Material Adverse Effect. The execution and delivery of this Agreement by
the Company and ASCRP, the performance by the Company and ASCRP of its
obligations hereunder and the consummation by the Company and ASCRP of the
transactions contemplated hereby have been duly authorized by all requisite
action on the part of the Company and ASCRP, as the case may be. This Agreement
will be duly executed and delivered by the Company and ASCRP, and (assuming due
authorization, execution and delivery by the Purchaser) this Agreement
constitutes, a legal, valid and binding obligation of the Company and ASCRP
enforceable against each of the Company and ASCRP in accordance with its terms.
Neither the Company nor ASCRP is in violation of any of the provisions of their
respective articles of incorporation, by-laws or equivalent organizational
documents in any material respect.
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3.2 CAPITAL STOCK OF THE COMPANY AND ASCRP. The Company Common Stock,
if and when issued upon exercise of the Warrant, in accordance with the terms of
this Agreement, will be duly authorized, fully paid and non-assessable and free
and clear of any lien. The ASCRP Common Stock, if and when issued in accordance
with the terms of this Agreement, will be duly authorized, fully paid and
non-assessable and free and clear of any lien.
3.3 NO CONFLICT. Assuming the making and obtaining of all filings,
notifications, consents, approvals, authorizations and other actions referred to
in Section 3.4, except as may arise from facts or circumstances relating solely
to the Purchaser, the execution, delivery and performance of this Agreement and
the Warrant by the Company and ASCRP, as the case may be, do not and will not
(a) violate, conflict with or result in the breach of any provision of the
articles of incorporation or by-laws (or similar organizational documents) of
the Company or ASCRP, (b) conflict with or violate any Law or Governmental Order
applicable to the Company, ASCRP or any of their respective assets, properties
or businesses, or (c) conflict with, result in any breach of, constitute a
default (or event which with the giving of notice or lapse of time, or both,
would become a default) under, require any consent under, or give to others any
rights of termination, amendment, acceleration, suspension, revocation or
cancellation of, or result in the creation of any Encumbrance on any of the
assets or properties of the Company or ASCRP pursuant to, any note, bond,
mortgage or indenture, contract, Agreement, lease, sublease, license, permit,
franchise or other instrument, obligation or arrangement to which the Company or
ASCRP is a party or by which any of their respective assets or properties is
bound or affected, except, with respect to clauses (b) and (c), as would not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect.
3.4 GOVERNMENTAL CONSENTS AND APPROVALS. The execution, delivery and
performance of this Agreement and the Warrant by the Company and ASCRP, as the
case may be, do not and will not require any consent, approval, authorization or
other order of, action by, filing with or notification to any Governmental
Authority, except (i) for the applicable requirements, if any, of the Exchange
Act, state securities or "blue sky" laws, and the NYSE and (ii) for such other
consents, approvals, authorizations, orders, actions, filings or notifications
which if not obtained or made would not be reasonably expected to result in a
Material Adverse Effect or to materially delay the consummation of the
transactions contemplated by this Agreement.
3.5 COMPLIANCE WITH LAWS. Neither the Company nor ASCRP is in default
or violation of any Governmental Order, except for such defaults or violations
that would not, individually or in the aggregate, be reasonably expected to
result in a Material Adverse Effect.
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3.6 FULL DISCLOSURE. The Company's SEC Filings and the information
supplied by the Company and ASCRP in this Agreement or the Warrant or any other
document, certificate, notice or consent related to any of the foregoing
delivered to the Purchaser in connection with the Agreement or the Warrant at or
prior to the Closing contains (or will contain) an untrue statement of a
material fact or omits (or will omit) to state a material fact required to be
stated therein or necessary to make the statements made, in light of the
circumstances in which made, not materially false or misleading.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
As an inducement to the Company and ASCRP to enter into this Agreement,
the Purchaser represents and warrants to the Company and ASCRP as follows:
4.1 ORGANIZATION AND AUTHORITY OF EACH PURCHASER. The Purchaser is a
limited partnership duly organized, validly existing and in good standing under
the laws of its state of organization. The Purchaser has all necessary power and
authority to enter into this Agreement, to carry out its obligations hereunder
and to consummate the transactions contemplated hereby. The execution and
delivery of this Agreement by the Purchaser, the performance by the Purchaser of
its obligations hereunder and the consummation by the Purchaser of the
transactions contemplated hereby have been duly authorized by all requisite
action on the part of the Purchaser. This Agreement has been duly executed and
delivered by the Purchaser, and (assuming due authorization, execution and
delivery by the Company and ASCRP, as the case may be) this Agreement
constitutes a legal, valid and binding obligation of the Purchaser enforceable
against the Purchaser in accordance with its terms.
4.2 NO CONFLICT. Assuming the making and obtaining of all filings,
notifications, consents, approvals, authorizations and other actions referred to
in Section 4.3, except as may result from any facts or circumstances relating
solely to the Company, the execution, delivery and performance of this Agreement
by the Purchaser does not and will not (a) violate, conflict with or result in
the breach of any provision of its certificate of limited partnership or by-laws
or similar organizational document of the Purchaser, (b) conflict with or
violate any Law or Governmental Order applicable to the Purchaser or (c)
conflict with, or result in any breach of, constitute a default (or event which
with the giving of notice or lapse or time, or both, would become a default)
under, require any consent under, or give to others any rights of termination,
amendment, acceleration, suspension, revocation, or cancellation of, or result
in the creation of any Encumbrance on any of the assets or properties of the
Purchaser pursuant to, any note, bond, mortgage or indenture, contract,
Agreement, lease, sublease, license, permit, franchise or other instrument or
arrangement to which the Purchaser is a party or by which any of such assets or
properties are bound or affected which, with respect to clauses (b) and (c)
above, would have a material
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adverse effect on the ability of the Purchaser to consummate the transactions
contemplated by this Agreement.
4.3 GOVERNMENTAL CONSENTS AND APPROVALS. The execution, delivery and
performance of this Agreement by the Purchaser does not and will not require any
consent, approval, authorization or other order of, action by, filing with, or
notification to, any Governmental Authority, except (i) for the applicable
requirements, if any, of the Exchange Act, state securities or "blue sky" laws
and (ii) for such other consents, approvals, authorizations, orders, actions,
filings or notifications, which if not obtained or made would not be reasonably
likely to be material to the Purchaser or materially delay the consummation of
the transactions contemplated by this Agreement.
4.4 INVESTMENT PURPOSE. The Purchaser is acquiring the Warrant or the
Shares, as the case may be, for its own account solely for the purpose of
investment and not with a view to, or for offer or sale in connection with, any
distribution thereof.
4.5 STATUS OF SHARES; LIMITATION ON TRANSFER AND OTHER RESTRICTIONS.
The Purchaser understands that the Warrant, the Company Common Stock issuable
upon conversion of the Warrant and the Shares (the "RESTRICTED SECURITIES") have
not been and will not be registered under the Securities Act or under any state
securities laws (other than, in the case of the Warrant and the Company Common
Stock issued upon conversion of the Warrant, in accordance with the
Stockholders' Agreement) and are being offered and sold in reliance upon federal
and state exemptions for transactions not involving any public offering and that
the Restricted Securities have not been approved or disapproved by the SEC or by
any other federal or state agency. The Purchaser understands that none of the
Restricted Securities may be sold, transferred or assigned unless registered by
the Company or ASCRP, as the case may be, pursuant to the Securities Act and any
applicable state securities laws, or unless an exemption therefrom is available,
and, accordingly, it may not be possible for the Purchaser to liquidate its
investment in the Restricted Securities, and it agrees not to sell, assign or
otherwise transfer or dispose of any unless such Restricted Securities have been
so registered or an exemption from registration is available.
ARTICLE 5
COVENANTS OF THE COMPANY AND ASCRP
5.1 FURTHER ACTION; CONSENTS; FILINGS. Each of the Company and ASCRP
shall (i) take, or cause to be taken, all appropriate action and do, or cause to
be done, all things necessary and proper or advisable under applicable Law to
consummate the transactions contemplated by this Agreement and (if issued) the
Warrant; (ii) seek to obtain from Governmental Authorities any consents,
licenses, permits, waivers, approvals,
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authorizations or orders required to be obtained or made by the Company or
ASCRP, as the case may be, in connection with the authorization, execution and
delivery of this Agreement and the Warrant and the consummation of the
transactions contemplated hereby and thereby; and (iii) make all necessary
filings, and thereafter make any other required submissions, with respect to
this Agreement and the Warrant and the transactions contemplated hereby and
thereby that are required under any applicable Law.
5.2 WAIVER. The Company shall use its best efforts to obtain the Waiver
as promptly as practicable after the Closing Date. If the Waiver is not received
by the Date of Issuance, the Company shall continue to use its best efforts to
obtain the Waiver, in order to facilitate the Purchaser's exercise of its rights
under Section 2.4.
5.3 REGISTRATION RIGHTS. Upon receipt of the Waiver, the holder(s) of
the Warrant shall have the same rights to register the resale of the Warrant and
the Company Common Stock into which it is exercisable as are granted to the
Purchaser in respect of the Company's 8.5% Series B Convertible Participating
Preferred Stock and the Company Common Stock, respectively, under the
Stockholders' Agreement, as amended.
ARTICLE 6
CONDITIONS TO CLOSING OF THE PURCHASER, THE COMPANY AND ASCRP
6.1 CONDITIONS TO THE CLOSING OF EACH PARTY. The obligations of the
Company, ASCRP and the Purchaser to consummate the transactions contemplated by
this Agreement and the Warrant are subject to the satisfaction or written waiver
(where permissible) of the condition that no Governmental Authority or court of
competent jurisdiction shall have enacted, threatened, issued, promulgated,
enforced or entered any Governmental Order that is then in effect, pending or
threatened and has, or would have, the effect of prohibiting consummation of the
transactions contemplated by this Agreement or the Warrant.
6.2 CONDITIONS TO THE CLOSING OF THE PURCHASER. The obligations of the
Purchaser to consummate the transactions contemplated by this Agreement and the
Warrant are subject to the satisfaction or written waiver (where permissible) of
the following conditions:
(a) At the Closing, the Company shall deliver or cause to be delivered
to the Purchaser: (i) a receipt for the aggregate purchase price paid by the
Purchaser for the Warrants or the Shares pursuant to Section 2.3 of this
Agreement and (ii) a legal opinion, addressed to the Purchaser and dated the
Closing Date, from Pierce Atwood, substantially in the form of Exhibit B;
(b) The representations and warranties of the Company and ASCRP
contained in this Agreement shall have been true and correct in all material
respects as of the Closing,
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(provided, however, that if any portion of any representation or warranty is
already qualified by materiality, for purposes of determining whether this
Section 6.2(b) has been satisfied with respect to such portion of such
representation or warranty, such portion of such representation or warranty as
so qualified must be true and correct in all respects) and the covenants and
agreements contained in this Agreement to be complied with by the Company or
ASCRP, as the case may be, on or before the Closing shall have been complied
with in all material respects;
(c) The closing of the ASCRP Credit Agreement shall have taken place;
and
(d) The Amendment to the Stockholders' Agreement shall have been duly
authorized, executed and delivered by the Company.
6.3 CONDITIONS TO THE CLOSING OF THE COMPANY AND ASCRP. The obligations
of the Company and ASCRP to consummate the transactions contemplated by this
Agreement and the Warrant are subject to the satisfaction or written waiver
(where permissible) of the following conditions:
(a) At the Closing the Purchaser shall deliver or cause to be delivered
to the Purchaser the aggregate purchase price paid by the Purchaser as set forth
in Section 2.3 of this Agreement;
(b) The representations and warranties of the Purchaser contained in
this Agreement shall have been true and correct in all material respects as of
the Closing;
(c) The closing of the ASCRP Credit Agreement shall have taken place;
and
(d) The Amendment to the Stockholders' Agreement shall have been duly
authorized, executed and delivered by the Purchaser.
ARTICLE 7
MISCELLANEOUS
7.1 NOTICES. All notices, demands and other communications provided for
or permitted hereunder shall be made in writing and shall be by registered or
certified first-class mail, return receipt requested, telecopier, courier
service or personal delivery:
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(a) if to the Company or ASCRP:
American Skiing Company
Sunday River Road
Bethel, ME 04217
Telecopy: (207) 824-5110
Attention: Leslie B. Otten
Christopher E. Howard
and
American Skiing Company
One Monument Square
Portland, ME 04101
Telecopy: (207) 791-2607
Attention: Foster A. Stewart, Jr., General Counsel
with a copy to:
Shearman & Sterling
599 Lexington Avenue
New York, NY 10022-6069
Telecopy: (212) 848-7179
Attention: Peter D. Lyons, Esq.
E-mail: [email protected]
and a copy to:
Pierce Atwood
One Monument Square
Portland, ME 04101
Telecopy: (207) 791-1350
Attention: David J. Champoux, Esq.
E-mail: [email protected]
(b) if to the Purchaser to:
Oak Hill Capital Partners, L.P.
201 Main Street
Fort Worth, Texas 76102
Telecopy: (817) 339-7350
Attention: Ray Pinson
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and
Oak Hill Capital Management, Inc.
Park Avenue Tower
65 East 55th Street
New York, NY 10022
Telecopy: (212) 754-5685
Attention: Steven B. Gruber
Bradford E. Bernstein
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019-6064
Telecopy: (212) 757-3990
Attention: David K. Lakhdhir, Esq.
Email: [email protected]
All such notices, demands and other communications shall be deemed to have been
duly given when delivered by hand, if personally delivered; when delivered by
courier, if delivered by commercial courier service; five (5) Business Days
after being deposited in the mail, postage prepaid, if mailed; and when receipt
is mechanically acknowledged, if telecopied. Any party may by notice given in
accordance with this Section 7.1 designate another address or Person for receipt
of notices hereunder.
7.2 HEADINGS. The descriptive headings contained in this Agreement are
for convenience of reference only and shall not effect in any way the meaning or
interpretation of this Agreement.
7.3 SEVERABILITY. If any term or other provision of this Agreement is
held invalid, illegal or incapable of being enforced by any law or public
policy, all other terms and provisions of this Agreement shall nevertheless
remain in full force and effect unless the provisions held invalid, illegal or
unenforceable shall substantially impair the benefits of the remaining
provisions hereof.
7.4 ENTIRE AGREEMENT. This Agreement constitutes the entire Agreement
of the parties hereto with respect to the subject matter hereof and supersedes
all prior agreements and undertakings, both written and oral, between the
parties with respect to the subject matter hereof.
7.5 ASSIGNMENT. This Agreement shall inure to the benefit of and be
binding on the successors and assigns of each of the parties; provided, that no
party hereto shall
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14 assign its rights under this Agreement without the prior written consent of
the other parties, except the Purchaser may assign its rights to an Affiliate or
to Oak Hill Securities, L.P. and any of its Affiliates.
7.6 AMENDMENT AND WAIVER.
(a) No failure or delay on the part of any of the parties
hereto in exercising any right, power or remedy hereunder shall operate as a
waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. The remedies provided for herein are
cumulative and are not exclusive of any remedies that may be available to any of
the parties hereto at law, in equity or otherwise.
(b) Any amendment, supplement or modification of or to any
provision of this Agreement and any waiver of any provision of this Agreement
shall be effective only if it is made or given in writing and signed by the
Company, ASCRP and the Purchaser.
7.7 COUNTERPARTS. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, all of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same Agreement.
7.8 SPECIFIC PERFORMANCE. The parties hereto agree that irreparable
damage would occur in the event that any provision of this Agreement or the
Warrant were not performed in accordance with their terms and that the parties
shall be entitled to specific performance of the terms of this Agreement and the
Warrant, in addition to any other remedy at law or equity.
7.9 EXPENSES. All costs and expenses, including, without limitation,
fees and disbursements of counsel, financial advisors and accountants, incurred
in connection with this Agreement and the Warrant and the transactions
contemplated hereby shall be paid by the party incurring such costs and
expenses, except that ASCRP or the Company shall pay the reasonable
out-of-pocket expenses of the Purchaser in connection with the transactions
contemplated by the Agreement and the Warrant.
7.10 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ANY
CONFLICTS OF LAW PRINCIPLES THEREOF THAT MIGHT INDICATE THE APPLICABILITY OF THE
LAWS OF ANY OTHER JURISDICTION.
<PAGE>
15
[Remainder of this page intentionally left blank.]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
AMERICAN SKIING COMPANY
By:________________________________
Name:
Title:
AMERICAN SKIING COMPANY RESORT
PROPERTIES, INC.
By:________________________________
Name:
Title:
OAK HILL CAPITAL PARTNERS, L.P.
By: OHCP GenPar, L.P., its general partner
By: OHCP MGP, LLC, its general partner
By:________________________________
Name: Steven B. Gruber
Title: Managing Member
<PAGE>
TABLE OF CONTENTS
PAGE #
------
ARTICLE 1 DEFINITIONS..................................................2
1.1 Definitions..................................................2
ARTICLE 2 PURCHASE AND SALE OF SECURITIES..............................5
2.1 Purchase and Sale of Securities..............................5
2.2 Issuance of Securities; Delivery.............................5
2.3 Purchase Price...............................................5
ARTICLE 3 REPRESENTATIONS, WARRANTIES AND COVENANTS OF
THE COMPANY AND ASCRP........................................6
3.1 Organization, Authorization and Qualification of
the Company and ASCRP........................................6
3.2 Capital Stock of the Company and ASCRP.......................6
3.3 No Conflict..................................................6
3.4 Governmental Consents and Approvals..........................7
3.5 Compliance with Laws.........................................7
3.6 Full Disclosure..............................................7
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF
THE PURCHASER................................................8
4.1 Organization and Authority of Each Purchaser.................8
4.2 No Conflict..................................................8
4.3 Governmental Consents and Approvals..........................8
4.4 Investment Purpose...........................................9
4.5 Status of Shares; Limitation on Transfer
and Other Restrictions ......................................9
ARTICLE 5 COVENANTS OF THE COMPANY AND ASCRP...........................9
5.1 Further Action; Consents; Filings............................9
5.2 Waiver.......................................................9
5.3 Registration Rights..........................................9
ARTICLE 6 CONDITIONS TO CLOSING OF THE PURCHASER,
THE COMPANY AND ASCRP.......................................10
6.1 Conditions to the Closing of each Party.....................10
6.2 Conditions to the Closing of the Purchaser..................10
i
<PAGE>
PAGE #
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6.3 Conditions to the Closing of the Company and ASCRP..........10
ARTICLE 7 MISCELLANEOUS...............................................11
7.1 Notices.....................................................11
7.2 Headings....................................................13
7.3 Severability................................................13
7.4 Entire Agreement............................................13
7.5 Assignment..................................................13
7.6 Amendment and Waiver........................................13
7.7 Counterparts................................................13
7.8 Specific Performance........................................14
7.9 Expenses....................................................14
7.10 Governing Law...............................................14
ii
<PAGE>
EXHIBIT A to the
Securities Purchase Agreement
THIS WARRANT AND ANY SECURITIES ACQUIRED UPON THE EXERCISE OF THIS WARRANT HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"), OR
THE SECURITIES LAWS OF ANY STATE. NEITHER THIS WARRANT, SUCH SECURITIES NOR ANY
INTEREST THEREIN MAY BE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS OR PURSUANT TO AN
APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF SUCH ACT AND SUCH
LAWS.
THE SALE, ASSIGNMENT, HYPOTHECATION, PLEDGE, ENCUMBRANCE OR OTHER DISPOSITION
(EACH A "TRANSFER") AND VOTING OF ANY OF THE SECURITIES REPRESENTED BY THIS
WARRANT AND THE SECURITIES ACQUIRED PURSUANT TO THE EXERCISE OF THIS WARRANT ARE
RESTRICTED BY THE TERMS OF THE STOCKHOLDERS' AGREEMENT, DATED AUGUST 9, 1999, AS
AMENDED, AMONG AMERICAN SKIING COMPANY, A DELAWARE CORPORATION (THE "COMPANY"),
AND THE PARTIES NAMED THEREIN, A COPY OF WHICH MAY BE INSPECTED AT THE COMPANY'S
PRINCIPAL OFFICE. THE COMPANY WILL NOT REGISTER THE TRANSFER OF THIS WARRANT OR
SUCH SECURITIES ON THE BOOKS OF THE COMPANY UNLESS AND UNTIL THE TRANSFER HAS
BEEN MADE IN COMPLIANCE WITH THE TERMS OF SUCH AGREEMENT.
---------------------------------------------
AMERICAN SKIING COMPANY
COMMON STOCK PURCHASE WARRANT
---------------------------------------------
This certifies that, for good and valuable consideration, AMERICAN
SKIING COMPANY, a Delaware corporation (the "Company"), grants to Oak Hill
Capital Partners, L.P., a Delaware limited partnership (the "Warrantholder"),
the right to subscribe for and purchase from the Company, during the Exercise
Period (as hereinafter defined), Six Million (6,000,000) validly issued, fully
paid and nonassessable shares of Common Stock of the Company (the "Warrant
Shares"), at the exercise price per share of $2.50 (subject to adjustment as set
forth below, the "Exercise Price"), all subject to the terms, conditions and
adjustments herein set forth. Capitalized terms used herein shall have the
meanings ascribed to such terms in Section 9 below.
1. WARRANT.
<PAGE>
2
1.1 EXERCISE PERIOD. This Warrant is issued pursuant to, and
in accordance with, Article 2 of the Securities Purchase Agreement by and among
the Company, the Warrantholder, and American Skiing Company Resort Properties,
Inc. ("ASCRP"), dated as of July 31, 2000 (the "Purchase Agreement"), and is
subject to the terms thereof. "Exercise Period" shall mean the period beginning
on the date hereof and ending on December 31, 2005.
2. EXERCISE OF WARRANT; PAYMENT OF TAXES.
2.1 EXERCISE OF WARRANT. Subject to the terms and conditions
set forth herein, this Warrant may be exercised at any time, in whole or in
part, by the Warrantholder during the Exercise Period by:
(a) the surrender of this Warrant to the Company,
with a duly executed Exercise Form, and
(b) subject to Section 2.2 below, the delivery of
payment to the Company, for the account of the Company, by cash, wire transfer,
certified or official bank check or any other means approved by the Company, of
the aggregate Exercise Price in lawful money of the United States of America.
The Company agrees that the Warrant Shares shall be deemed to be issued to the
Warrantholder as the record holder of such Warrant Shares as of the close of
business on the date on which this Warrant shall have been surrendered and
payment made for the Warrant Shares as aforesaid.
2.2 CONVERSION RIGHT.
(a) In lieu of the payment of the aggregate Exercise
Price, the Warrantholder shall have the right (but not the obligation), to
require the Company to convert this Warrant, in whole or in part, into shares of
Common Stock (the "Conversion Right") as provided for in this Section 2.2. Upon
exercise of the Conversion Right, the Company shall deliver to the Warrantholder
(without payment by the Warrantholder of any of the Exercise Price) in
accordance with Section 2.1(b) that number of shares of Common Stock equal to
the quotient obtained by dividing (i) the value of the Warrant or portion
thereof at the time the Conversion Right is exercised (determined by subtracting
the aggregate Exercise Price at the time of the exercise of the Conversion Right
from the aggregate Current Market Price for the shares of Common Stock issuable
upon exercise of the Warrant at the time of the exercise of the Conversion
Right) by (ii) the Current Market Price of one share of Common Stock at the time
of the exercise of the Conversion Right.
<PAGE>
3
(b) The Conversion Right may be exercised by the
Warrantholder on any Business Day prior to the end of the Exercise Period by
surrender of this Warrant to the Company, with a duly executed Exercise Form
with the conversion section completed, exercising the Conversion Right and
specifying the total number of shares of Common Stock that the Warrantholder
will be issued pursuant to such conversion.
2.3 WARRANT SHARES CERTIFICATE. A stock certificate or
certificates for the Warrant Shares specified in the Exercise Form shall be
delivered to the Warrantholder within five (5) Business Days after receipt of
the Exercise Form by the Company and, unless the Conversion Right is exercised,
the payment by the Warrantholder of the aggregate Exercise Price. If this
Warrant is exercised only in part, the Company shall, at the time of delivery of
the stock certificate or certificates, deliver to the Warrantholder a new
Warrant evidencing the right to purchase the remaining Warrant Shares, which new
Warrant shall in all other respects be identical to this Warrant.
2.4 PAYMENT OF TAXES. The Company will pay all documentary
stamp or other issuance taxes, if any, attributable to the issuance of Warrant
Shares upon the exercise of this Warrant, except that the Company shall not be
required to pay any tax or taxes which may be payable in respect of any transfer
involved in the issue or delivery of any Warrants or Warrant certificates or
Warrant Shares in a name other than that of the then Warrantholder as reflected
upon the books of the Company.
3. RESTRICTIONS ON TRANSFER; RESTRICTIVE LEGENDS.
3.1 At no time may this Warrant or the Warrant Shares be
offered, sold, transferred, pledged or otherwise disposed of, in whole or in
part, to any Person except in accordance with applicable federal and state
securities laws and the terms of and conditions of the Stockholders' Agreement,
dated August 9, 1999, as amended (the "Stockholders' Agreement"), among the
Company, the Warrantholder, Leslie B. Otten and the other parties signatory
thereto.
3.2 Except as otherwise permitted by this Section 3, each
Warrant (and each Warrant issued in substitution for any Warrant pursuant to
Section 6) and each certificate for Warrant Shares issued upon the exercise of
any Warrant shall be stamped or otherwise imprinted with a legend in
substantially the form as set forth on the cover of this Warrant.
Notwithstanding the foregoing, the Warrantholder may require the Company to
issue a Warrant or a certificate for Warrant Shares, in each case without a
legend, if (a)(i) the resale of such Warrant or such Warrant Shares, as the case
may be, has been registered under the Securities Act (and such registration
remains in effect), (ii) the Warrantholder has delivered to the
<PAGE>
4
Company an opinion of legal counsel (from a firm reasonably satisfactory to the
Company), which is addressed to the Company and is reasonably satisfactory in
form and substance to the Company's counsel, to the effect that such
registration is not required with respect to the resale of such Warrant or such
Warrant Shares, as the case may be, or (iii) such Warrant or Warrant Shares may
then be sold pursuant to Rule 144 (or any successor provision then in effect)
under the Securities Act, and (b) the Warrantholder has delivered to the Company
an opinion of legal counsel (from a firm reasonably satisfactory to the
Company), which is addressed to the Company and is reasonably satisfactory in
form and substance to the Company's counsel, to the effect that, pursuant to the
terms and conditions of the Stockholders' Agreement, the Warrant or the Warrant
Shares may be transferred free of legend.
4. RESERVATION AND REGISTRATION OF SHARES. The Company covenants and
agrees as follows:
(a) All Warrant Shares that are issued upon the
exercise of this Warrant shall, upon issuance, be validly issued, fully paid and
non-assessable, not subject to any preemptive rights, and be free from all
taxes, liens, security interests, charges, and other encumbrances with respect
to the issuance thereof, other than taxes in respect of any transfer occurring
contemporaneously with such issue.
(b) The Company shall at all times have authorized
and reserved, and shall keep available and free from preemptive rights, a
sufficient number of shares of Common Stock to provide for the exercise of the
rights represented by this Warrant.
(c) The Company shall not, by amendment of its
articles of certificate of incorporation or through any reorganization, transfer
of assets, spin-off, consolidation, merger, dissolution, issue or sale of
securities or any other action or inaction, seek to avoid the observance or
performance of any of the terms of this Warrant, and shall at all times in good
faith assist in performing and giving effect to the terms hereof and in the
taking of all such actions as may be necessary or appropriate in order to
protect the rights of the Warrantholder against dilution or other impairment.
5. ANTI-DILUTION ADJUSTMENTS. The Exercise Price and the number of
Warrant Shares to be received upon exercise of this Warrant shall be subject to
adjustment as follows:
5.1 DIVIDEND, SUBDIVISION, COMBINATION OR RECLASSIFICATION OF
COMMON STOCK. If the Company shall at any time or from time to time, after the
Closing Date but prior to the exercise hereof, (w) make a dividend or
distribution on
<PAGE>
5
the outstanding shares of Common Stock payable in Capital Stock, (x) subdivide
the outstanding shares of Common Stock into a larger number of shares, (y)
combine the outstanding shares of Common Stock into a smaller number of shares
or (z) issue any shares of its Capital Stock in a reclassification of the Common
Stock (other than any such event for which an adjustment is made pursuant to
another clause of this Section 5), then, and in each such case, (A) the
aggregate number of Warrant Shares for which this Warrant is exercisable (the
"Warrant Share Number") immediately prior to such event shall be adjusted (and
any other appropriate actions shall be taken by the Company) so that the
Warrantholder shall be entitled to receive upon exercise of this Warrant the
number of shares of Common Stock or other securities of the Company that it
would have owned or would have been entitled to receive upon or by reason of any
of the events described above, had this Warrant been exercised immediately prior
to the occurrence of such event and (B) the Exercise Price payable upon the
exercise of this Warrant shall be adjusted by multiplying such Exercise Price
immediately prior to such adjustment by a fraction, the numerator of which shall
be the Warrant Share Number immediately prior to such adjustment, and the
denominator of which shall be the Warrant Share Number immediately thereafter.
An adjustment made pursuant to this Section 5.1 shall become effective
retroactively (x) in the case of any such dividend or distribution, to a date
immediately following the close of business on the record date for the
determination of holders of shares of Common Stock entitled to receive such
dividend or distribution or (y) in the case of any such subdivision, combination
or reclassification, to the close of business on the day upon which such
corporate action becomes effective.
5.2 ISSUANCES BELOW MARKET PRICE.
(a) If the Company shall at any time or from time to
time, after the Closing Date but prior to the exercise hereof, issue or sell
(such issuance or sale, a "New Issuance") any shares of Common Stock or Common
Stock Equivalents at a price per share of Common Stock (the "New Issue Price")
that is less than the Current Market Price then in effect as of the record date
or Issue Date (as defined below), as the case may be (the "Relevant Date")
(treating the price per share of Common Stock, in the case of the issuance of
any Common Stock Equivalent, as equal to (x) the sum of the price for such
Common Stock Equivalent plus any additional consideration payable (without
regard to any anti-dilution adjustments) upon the conversion, exchange or
exercise of such Common Stock Equivalent divided by (y) the number of shares of
Common Stock initially underlying such Common Stock Equivalent), other than (i)
issuances or sales for which an adjustment is made pursuant to another
subsection of this Section 5 and (ii) issuances in connection with an Excluded
Transaction, THEN, and in each such case, (A) the Exercise Price then in effect
shall be adjusted by MULTIPLYING the Exercise Price in effect on the day
immediately prior to the Relevant Date by a fraction (I) the numerator of which
shall be the sum of the number of shares of Common Stock outstanding on the
Relevant Date PLUS the
<PAGE>
6
number of shares of Common Stock which the aggregate consideration received by
the Company for the total number of such additional shares of Common Stock so
issued would purchase at the Current Market Price on the Relevant Date (or, in
the case of Common Stock Equivalents, the number of shares of Common Stock which
the aggregate consideration received by the Company upon the issuance of such
Common Stock Equivalents and receivable by the Company upon the conversion,
exchange or exercise of such Common Stock Equivalents would purchase at the
Current Market Price on the Relevant Date) and (II) the denominator of which
shall be the sum of the number of shares of Common Stock outstanding on the
Relevant Date PLUS the number of additional shares of Common Stock issued or to
be issued (or, in the case of Common Stock Equivalents, the maximum number of
shares of Common Stock into which such Common Stock Equivalents initially may
convert, exchange or be exercised)and (B) the Warrant Share Number shall be
increased to equal the product of (i) the aggregate number of Warrant Shares for
which this Warrant is exercisable immediately prior to the New Issuance
multiplied by (ii) a fraction, the numerator of which shall be the Exercise
Price in effect on the day immediately prior to the Relevant Date and the
denominator of which shall be the Exercise Price in effect immediately after
such adjustment.
Such adjustment shall be made whenever such shares of Common Stock or Common
Stock Equivalents are issued, and shall become effective retroactively (x) in
the case of an issuance to the stockholders of the Company, as such, to a date
immediately following the close of business on the record date for the
determination of shareholders entitled to receive such shares of Common Stock or
Common Stock Equivalents and (y) in all other cases, on the date (the "Issue
Date") of such issuance; PROVIDED, HOWEVER, that the determination as to whether
an adjustment is required to be made pursuant to this Section 5.2 shall be made
only upon the issuance of such shares of Common Stock or Common Stock
Equivalents, and not upon the subsequent issuance of any security into which the
Common Stock Equivalents convert, exchange or may be exercised.
(b) If at any time any shares of Common Stock or
Common Stock Equivalents or any rights or options to purchase any shares of
Common Stock or Common Stock Equivalents shall be issued or sold for cash, the
consideration received therefor shall be deemed to be the amount received by the
Company therefor, without deduction therefrom of any expenses incurred or any
underwriting commissions or concessions or discounts paid or allowed by the
Company in connection therewith. If any shares of Common Stock or Common Stock
Equivalents or any rights or options to purchase any Common Stock or Common
Stock Equivalents shall be issued or sold for a consideration other than cash,
the amount of the consideration other than cash received by the Company shall be
deemed to be the Fair Market Value of such consideration, without deduction
therefrom of any expenses incurred or any underwriting commissions or
concessions or discounts paid or allowed
<PAGE>
7
by the Company in connection therewith. If any shares of Common Stock or Common
Stock Equivalents or any rights or options to purchase any shares of Common
Stock or Common Stock Equivalents shall be issued in connection with any merger
of another entity into the Company or any mandatory share exchange, the amount
of consideration therefor shall be deemed to be the Fair Market Value of the
assets of the merged entity after deducting therefrom all cash and other
consideration (if any) paid by the Company in connection with such merger or
mandatory share exchange.
(c) If any Common Stock Equivalents (or any portions
thereof) which shall have given rise to an adjustment pursuant to this Section
5.2 shall have expired or terminated without the exercise thereof and/or if by
reason of the terms of such Common Stock Equivalents there shall have been an
increase or increases, with the passage of time or otherwise, in the price
payable upon the exercise or conversion thereof, then the Exercise Price
hereunder shall be readjusted (but to no greater extent than originally
adjusted) in order to (i) eliminate from the computation any additional shares
of Common Stock corresponding to such Common Stock Equivalents as shall have
expired or terminated, (ii) treat the additional shares of Common Stock, if any,
actually issued or issuable pursuant to the previous exercise of such Common
Stock Equivalents as having been issued for the consideration actually received
and receivable therefor and (iii) treat any of such Common Stock Equivalents
which remain outstanding as being subject to exercise or conversion on the basis
of such exercise or conversion price as shall be in effect at the time.
5.3 CERTAIN DISTRIBUTIONS. If the Company shall at any time or
from time to time, after the Closing Date but prior to the exercise hereof,
distribute to all holders of shares of Common Stock (including any such
distribution made in connection with a merger or consolidation in which the
Company is the resulting or surviving Person and shares of Common Stock are not
changed or exchanged) cash, evidences of indebtedness of the Company or another
issuer, securities of the Company or another issuer or other assets (excluding
dividends or distributions payable in shares of Common Stock for which
adjustment is made under Section 5.1 and any distribution in connection with an
Excluded Transaction) or rights or warrants to subscribe for or purchase any of
the foregoing, THEN, and in each such case, (A) the Exercise Price then in
effect shall be adjusted (and any other appropriate actions shall be taken by
the Company) by being multiplied by the Exercise Price in effect prior to the
date of distribution by a fraction (i) the numerator of which shall be such
Current Market Price of Common Stock immediately prior to the date of
distribution less the then Fair Market Value of the portion of the cash,
evidences of indebtedness, securities or other assets so distributed or of such
rights or warrants applicable to one share of Common Stock and (ii) the
denominator of which shall be the Current Market Price of the Common Stock
immediately prior to the date of distribution (but such fraction shall not be
greater than one) and (B) the Warrant Share Number shall be increased by being
multiplied by a fraction (i) the numerator of which shall be the Current Market
Price of
<PAGE>
8
one share of Common Stock immediately prior to the record date for the
distribution of such cash, evidences of indebtedness, securities, other assets
or rights or warrants and (ii) the denominator of which shall be the Current
Market Price of one share of Common Stock immediately prior to such record date
less the Fair Market Value of the portion of such cash, evidences of
indebtedness, securities, other assets or rights or warrants so distributed.
Such adjustment shall be made whenever any such distribution is made and shall
become effective retroactively to a date immediately following the close of
business on the record date for the determination of stockholders entitled to
receive such distribution.
5.4 OTHER CHANGES. If the Company at any time or from time to
time, after the Closing Date but prior to the exercise hereof, shall take any
action affecting its Common Stock similar to or having an effect similar to any
of the actions described in any of Sections 5.1, 5.2, 5.3 or 5.8 (but not
including any action described in any such Section) and the Board of Directors
in good faith determines that it would be equitable in the circumstances to
adjust the Exercise Price and Warrant Share Number as a result of such action,
then, and in each such case, the Exercise Price and Warrant Share Number shall
be adjusted in such manner and at such time as the Board of Directors in good
faith determines would be equitable in the circumstances (such determination to
be evidenced in a resolution, a certified copy of which shall be mailed to the
Warrantholder).
5.5 NO ADJUSTMENT; PAR VALUE MINIMUM. Notwithstanding anything
herein to the contrary, no adjustment under this Section 5 need be made to the
Exercise Price or Warrant Share Number if the Company receives written notice
from the Warrantholder that no such adjustment is required. Notwithstanding any
other provision of this Warrant, the Exercise Price shall not be adjusted below
the par value of a share of Common Stock.
5.6 ABANDONMENT. If the Company shall take a record of the
holders of shares of its Common Stock for the purpose of entitling them to
receive a dividend or other distribution, and shall thereafter and before the
distribution to stockholders thereof legally abandon its plan to pay or deliver
such dividend or distribution, then no adjustment in the Exercise Price or
Warrant Share Number shall be required by reason of the taking of such record.
5.7 CERTIFICATE AS TO ADJUSTMENTS. Upon any adjustment in the
Exercise Price or Warrant Share Number, the Company shall within a reasonable
period (not to exceed ten (10) days) following any of the foregoing transactions
deliver to the Warrantholder a certificate, signed by (i) the Chief Executive
Officer of the Company and (ii) the Chief Financial Officer of the Company,
setting forth in reasonable detail the event requiring the adjustment and the
method by which such
<PAGE>
9
adjustment was calculated and specifying the adjusted Exercise Price and Warrant
Share Number then in effect following such adjustment.
5.8 SPIN-OFF; REORGANIZATION, RECLASSIFICATION, MERGER OR SALE
TRANSACTION.
(a) In case of any spin-off by the Company of another
Person (the "Spin-off Entity") at any time after the Closing Date but prior to
the exercise hereof, the Company shall issue to the Warrantholder a new warrant,
in form and substance satisfactory to the Company and the Warrantholders,
entitling the Warrantholder to purchase, at the exercise price equal to the
excess of the Exercise Price in effect immediately prior to such spin-off over
the adjusted Exercise Price pursuant to Section 5.3, the number of shares of
common stock or other proprietary interest in the Spin-off Entity that the
Warrantholder would have owned had the Warrantholder, immediately prior to such
spin-off, exercised this Warrant.
(b) In case of any capital reorganization,
reclassification, Sale Transaction, mandatory share exchange (other than a Sale
Transaction or mandatory share exchange in which the Company is the surviving
corporation and in which the Common Stock is not exchanged or converted) of the
Company or other change of outstanding shares of Common Stock (other than a
change in par value, or from par value to no par value, or from no par value to
par value) (each, a "Transaction") at any time after the Closing Date but prior
to the exercise hereof, the Company shall execute and deliver to the
Warrantholder at least twenty (20) Business Days prior to effecting such
Transaction a certificate stating that the Warrantholder shall have the right
thereafter to exercise this Warrant for the kind and amount of shares of stock
or other securities, property or cash receivable upon such Transaction by a
holder of the number of shares of Common Stock into which this Warrant could
have been exercised immediately prior to such Transaction, and provision shall
be made therefor in the agreement, if any, relating to such Transaction. Such
certificate shall provide for adjustments which shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Section 5. The
provisions of this Section 5.8 and any equivalent thereof in any such
certificate similarly shall apply to successive transactions.
5.9 NOTICES. In case at any time or from time to time:
(w) the Company shall declare a dividend (or other
distribution) on its shares of Common Stock;
(x) the Company shall authorize the granting to the
holders of shares of its Common Stock rights or warrants to subscribe for or
purchase any shares of Capital Stock or any other rights or warrants;
<PAGE>
10
(y) there shall occur a spin-off or Transaction; or
(z) the Company shall take any other action that
would require a vote of the Company's stockholders;
then the Company shall mail to the Warrantholder, as promptly as possible but in
any event at least twenty (20) days prior to the applicable date hereinafter
specified, a notice stating (A) the date on which a record is to be taken for
the purpose of such dividend, distribution or granting of rights or warrants or,
if a record is not to be taken, the date as of which the holders of Common Stock
of record to be entitled to such dividend, distribution or granting of rights or
warrants are to be determined, or (B) the date on which such spin-off or
Transaction is expected to become effective and the date as of which it is
expected that holders of Common Stock of record shall be entitled to exchange
their Common Stock for shares of stock or other securities or property or cash
deliverable upon such spin-off or Transaction. Notwithstanding the foregoing, in
the case of any event to which Section 5.8 is applicable, the Company shall also
deliver the certificate described in such Section 5.8 to the Warrantholder at
least twenty (20) Business Days prior to effecting such reorganization or
reclassification as aforesaid.
6. LOSS OR DESTRUCTION OF WARRANT. Subject to the terms and conditions
hereof, upon receipt by the Company of evidence reasonably satisfactory to it of
the loss, theft, destruction or mutilation of this Warrant and, in the case of
loss, theft or destruction, of such bond or indemnification as the Company may
reasonably require, and, in the case of such mutilation, upon surrender and
cancellation of this Warrant, the Company will execute and deliver a new Warrant
of like tenor.
7. OWNERSHIP OF WARRANT. The Company may deem and treat the person in
whose name this Warrant is registered as the holder and owner hereof
(notwithstanding any notations of ownership or writing hereon made by anyone
other than the Company) for all purposes and shall not be affected by any notice
to the contrary, until presentation of this Warrant for registration of
transfer.
8. AMENDMENTS. Any provision of this Warrant may be amended and the
observance thereof waived only with the written consent of the Company and the
Warrantholder.
9. DEFINITIONS. As used herein, unless the context otherwise requires,
the following terms have the following respective meanings:
"ASCRP" has the meaning set forth in Section 1.1 of this Warrant.
"BOARD OF DIRECTORS" means the Board of Directors of the Company.
<PAGE>
11
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day
on which commercial banks in the State of New York are authorized or required by
law or executive order to close.
"CAPITAL STOCK" means, with respect to any Person, any and all shares,
interests, participations, rights in, or other equivalents (however designated
and whether voting or non-voting) of such Person's capital stock and any and all
rights, warrants or options exchangeable for or convertible into such capital
stock (but excluding any debt security whether or not it is exchangeable for or
convertible into such capital stock).
"CLOSING DATE" has the meaning ascribed to that term in the Purchase
Agreement.
"COMMON STOCK" means the common stock, par value $.01 per share, of the
Company.
"COMMON STOCK EQUIVALENT" means any security or obligation which is by
its terms convertible into or exercisable into shares of Common Stock,
including, without limitation, any option, warrant or other subscription or
purchase right with respect to Common Stock.
"COMPANY" has the meaning set forth in the first paragraph of this
Warrant.
"CONVERSION RIGHT" has the meaning set forth in Section 2.2(a) of this
Warrant.
"CURRENT MARKET PRICE" means, as of the date of determination, the
average of the daily Market Price of the Common Stock during the immediately
preceding ten (10) consecutive trading days ending on such date.
"EXCLUDED TRANSACTION" means (a) any issuance of Common Stock or
securities convertible into or exchangeable for Common Stock (i) as part of an
agreement approved by the Board of Directors and determined by them to be part
of an arm's length commercial agreement, or (ii) to employees, officers or
directors of the Company pursuant to a stock-incentive plan that has been duly
approved by the Board of Directors and (b) any issuance of Common Stock (i) upon
the conversion of Series A Preferred Stock or Series B Preferred Stock, or (ii)
as a dividend on shares of Series A Preferred Stock or Series B Preferred Stock.
"EXERCISE FORM" means an Exercise Form in the form annexed hereto as
EXHIBIT A.
<PAGE>
12
"EXERCISE PERIOD" has the meaning set forth in Section 1 of this
Warrant.
"EXERCISE PRICE" has the meaning set forth in the first paragraph of
this Warrant.
"FAIR MARKET VALUE" means the amount which a willing buyer would pay a
willing seller in an arm's length transaction reasonably determined in good
faith by the Board of Directors and shall be the value which is agreed upon by
at least 85% of the members thereof, or, if such determination is not reasonably
satisfactory to the Warrantholders, such determination shall be made by a
nationally recognized investment banking firm selected by the Company and the
Warrantholders, the expenses for which shall be born equally by the Company and
the Warrantholder. Any determination of the Fair Market Value by the Board of
Directors or such investment banking firm shall be made based on a valuation of
the Company as an entirety without regard to any discount for minority interests
or disparate voting rights among classes of capital stock.
"ISSUE DATE" has the meaning set forth in Section 5.2 of this Warrant.
"MARKET PRICE" on any date shall mean the closing bid prices per share
of the Common Stock on the NYSE or, if not then listed or traded on NYSE, such
other exchange, market or system that the Common Stock is then listed or traded
on. If on any such date the shares of such Common Stock are not listed or
admitted for trading on any national securities exchange or quoted on NYSE or a
similar service, the Market Price for such shares shall be the fair market value
of such shares on such date as determined in good faith by the Board of
Directors of the Company and shall be the value which is agreed upon by at least
85% of the members thereof, or if such percentage of the members of the Board of
Directors are unable to agree upon the value of such consideration, the value
thereof shall be determined by an independent investment bank of a nationally
recognized stature that is selected by the Company and the Warrantholders.
"NEW ISSUANCE" has the meaning set forth in Section 5.2 of this
Warrant.
"NEW ISSUE PRICE" has the meaning set forth in Section 5.2 of this
Warrant.
"NYSE" means the New York Stock Exchange.
<PAGE>
13
"PERSON" means any individual, firm, corporation, partnership, limited
liability company, trust, incorporated or unincorporated association, joint
venture, joint stock company, governmental body or other entity of any kind.
"PURCHASE AGREEMENT" has the meaning set forth in Section 1 of this
Warrant.
"RELEVANT DATE" has the meaning set forth in Section 5.2 of this
Warrant.
"SALE TRANSACTION" shall mean (a) (i) the merger or consolidation of
the Company into or with one or more Persons, (ii) the merger or consolidation
of one or more Persons into or with the Company or (iii) a tender offer or other
business combination if, in the case of (i), (ii) or (iii), the stockholders of
the Company prior to such merger or consolidation do not retain at least a
majority of the voting power of the surviving Person or (b) the voluntary sale,
conveyance, exchange or transfer to another Person of (i) the voting Capital
Stock of the Company if, after such sale, conveyance, exchange or transfer, the
stockholders of the Company prior to such sale, conveyance, exchange or transfer
do not retain at least a majority of the voting power of the Company or (ii) all
or substantially all of the assets of the Company.
"SECURITIES ACT" means the Securities Act of 1933, as amended, and the
rules and regulations of the Securities and Exchange Commission thereunder.
"SERIES A PREFERRED STOCK" means the 10.5% Repriced Convertible
Exchangeable Preferred Stock, par value $.01 per share, of the Company.
"SERIES B PREFERRED STOCK" means the 8.5% Convertible Participating
Preferred Stock, par value $.01 per share, of the Company.
"SPIN-OFF ENTITY" has the meaning set forth in Section 5.8 of this
Warrant.
"TRANSACTION" has the meaning set forth in Section 5.8 of this Warrant.
"TRANSFER" has the meaning set forth on the cover of this Warrant.
"WARRANT SHARE NUMBER" has the meaning set forth in Section 5.1 of this
Warrant.
"WARRANT SHARES" has the meaning set forth in the first paragraph of
this Warrant.
<PAGE>
14
"WARRANTHOLDER" has the meaning set forth in the first paragraph of
this Warrant.
10. MISCELLANEOUS
10.1 ENTIRE AGREEMENT. This Warrant and the Purchase Agreement
constitutes the entire agreement between the Company and the Warrantholder with
respect to the Warrant and supersedes all prior agreements and understanding
with respects to the subject matter of this Warrant.
10.2 BINDING EFFECT; BENEFITS. This Warrant shall inure to the
benefit of and shall be binding upon the Company and the Warrantholder and their
respective permitted successors and assigns. Nothing in this Warrant, expressed
or implied, is intended to or shall confer on any person other than the Company
and the Warrantholder, or their respective permitted successors or assigns, any
rights, remedies, obligations or liabilities under or by reason of this Warrant.
10.3 HEADINGS. The headings in this Warrant are for
convenience of reference only and shall not limit or otherwise affect the
meaning of this Warrant.
10.4 NOTICES. All notices, demands and other communications
provided for or permitted hereunder shall be made in writing and shall be by
registered or certified first-class mail, return receipt requested, telecopier,
courier service or personal delivery:
(a) if to the Company:
American Skiing Company
Sunday River Road
Bethel, ME 04217
Telecopy: (207) 824-5110
Attention: Leslie B. Otten
Christopher E. Howard
and
American Skiing Company
One Monument Square
Portland, ME 04101
Telecopy: (207) 791-2607
Attention: Foster A. Stewart, Jr.,
General Counsel
<PAGE>
15
with a copy to:
Shearman & Sterling
599 Lexington Avenue
New York, NY 10022-6069
Telecopy: (212) 848-7179
Attention: Peter D. Lyons, Esq.
E-mail: [email protected]
and a copy to:
Pierce Atwood
One Monument Square
Portland, ME 04101
Telecopy: (207) 791-1350
Attention: David J. Champoux, Esq.
E-mail: [email protected]
(b) if to the Warrantholder to:
Oak Hill Capital Partners, L.P.
201 Main Street
Fort Worth, Texas 76102
Telecopy: (817) 339-7350
Attention: Ray Pinson
and
Oak Hill Capital Management, Inc.
Park Avenue Tower
65 East 55th Street
New York, NY 10022
Telecopy: (212) 754-5685
Attention: Steven B. Gruber
Bradford E. Bernstein
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, NY 10019-6064
Telecopy: (212) 757-3990
Attention: David K. Lakhdhir, Esq.
<PAGE>
16
Email: [email protected]
All such notices, demands and other communications shall be deemed to
have been duly given when delivered by hand, if personally delivered; when
delivered by courier, if delivered by commercial courier service; five (5)
Business Days after being deposited in the mail, postage prepaid, if mailed; and
when receipt is mechanically acknowledged, if telecopied. Any party may by
notice given in accordance with this Section 10.4 designate another address or
Person for receipt of notices hereunder.
10.5 SEVERABILITY. Any term or provision of this Warrant which
is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the terms and provisions of this Warrant or
affecting the validity or enforceability of any of the terms or provisions of
this Warrant in any other jurisdiction.
10.6 GOVERNING LAW. THIS WARRANT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO
ANY CONFLICTS
OF LAW PRINCIPLES THEREOF THAT MIGHT INDICATE THE APPLICABILITY OF THE LAWS OF
ANY OTHER JURISDICTION.
IN WITNESS WHEREOF, the Company has caused this Warrant to be signed by
its duly authorized officer.
AMERICAN SKIING COMPANY
By:_______________________________
Name:
Title:
Dated: _____, 2000
<PAGE>
EXHIBIT A
EXERCISE FORM
(To be executed upon exercise of this Warrant)
The undersigned hereby irrevocably elects to exercise the right,
represented by this Warrant, to purchase [INSERT NUMBER] shares of Common Stock
of the Company and [herewith tenders payment for such shares to the order of the
Company in the amount of $[INSERT NUMBER]] [hereby exercises its Conversion
Right] in accordance with the terms of this Warrant. The undersigned requests
that a certificate for such [Warrant Shares] [that number of Warrant Shares to
which the undersigned is entitled as calculated pursuant to Section 2.2] be
registered in the name of the undersigned and that such certificates be
delivered to the undersigned's address below.
The undersigned represents that it is acquiring such shares for its own
account for investment and not with a view to or for sale in connection with any
distribution thereof (subject, however, to any requirement of law that the
disposition thereof shall at all times be within its control).
Dated: [INSERT DATE]
Signature ___________________________
___________________________
(Print Name)
___________________________
(Street Address)
___________________________
(City) (State)(Zip Code)
