CERTIFICATE OF DESIGNATION
OF SERIES D PARTICIPATING
PREFERRED STOCK
OF
AMERICAN SKIING COMPANY
Pursuant to Section 151 of the General Corporation
Law of the State of Delaware
AMERICAN SKIING COMPANY, a corporation organized under the laws
of the State of Delaware (the "Corporation"), certifies that, pursuant to the
authority contained in its Certificate of Incorporation, and in accordance with
the provisions of Section 151 of the General Corporation Law of the State of
Delaware, its Board of Directors has adopted the following resolution creating a
series of Serial Preferred Stock, $.01 par value per share, designated Series D
Participating Preferred Stock:
RESOLVED, that the series of authorized Preferred Stock, par
value $.01 per share, designated Series D Participating Preferred Stock of the
Corporation be hereby created, and that the designations and amounts thereof and
the voting powers, preferences and relative, optional and other special rights
of the shares of such series, and the qualifications, limitations and
restrictions thereof, are as follows:
A. The Corporation shall have authority to issue 5,000 shares of
Series D Convertible Preferred Stock, $.01 par valueper share (the "Series D
Preferred Stock"); and
B. The voting powers, preferences and relative, participating,
optional and other special rights of the shares of the Series D Preferred Stock,
and the qualifications, limitations and restrictions thereof are as follows:
Section 1. Definitions.
As used herein, the following terms have the following meanings
(with terms defined in the singular having comparable meanings when used in the
plural and vice versa), unless the context otherwise requires:
"Adjustment Date" shall mean the date on which any adjustment to
the Common Share Equivalent Number or Common Share Equivalent Price takes effect
in accordance with the provisions of Section 10.
"Affiliate" has the meaning set forth in Rule 12b-2, as in effect
on the date hereof, under the Exchange Act.
"Acquisition Transaction" shall mean a Change of Control effected
by any transaction or series of transactions in which at least a majority of the
outstanding Common Stock is acquired by any Person, whether pursuant to a tender
offer, merger, acquisition or otherwise, or a sale of all or substantially all
of the assets of the Corporation as an entirety.
"Associate" has the meaning set forth in Rule 12b-2, as in effect
on the date hereof, under the Exchange Act.
"Board of Directors" shall mean the board of directors of the
Corporation.
"Business Day" shall mean any day that is not a Saturday, Sunday
or a Legal Holiday.
"Change of Control" means the occurrence of any of the following:
(i) the sale, lease, transfer, conveyance or other disposition (other than by
way of merger or consolidation), in one or a series of related transactions, of
all or substantially all of the assets of the Corporation and its Subsidiaries,
taken as a whole, to any "person" (as such term is used in Section 13(d)(3) of
the Exchange Act) other than the Permitted Holders, or (ii) the consummation of
any transaction (including, without limitation, any merger or consolidation) the
result of which is that any "person" (as such term is used in Section 13(d)(3)
of the Exchange Act), other than the Permitted Holders, becomes the "beneficial
owner" (as such term is defined in Rule 13d-3 and Rule 13d-5 under the Exchange
Act), directly or indirectly, of more than 50% of the voting power of the
Corporation's capital stock, unless, in the case of this clause (ii), the
Permitted Holders retain the right or ability, by voting power, contract or
otherwise, to elect or designate a majority of the Board of Directors of the
Corporation; provided that, for so long as any Senior Subordinated Notes are
outstanding, a Change of Control shall not be deemed to occur for purposes of
this Certificate of Designation unless the same event or transaction shall also
have caused a "Change of Control" to have occurred for purposes of the Senior
Subordinated Note Indenture, and the Corporation shall be required to make a
"Change of Control Offer" as provided therein.
"Change of Control Notice" shall have the meaning set forth in
Section 6(b)
"Change of Control Price" shall have the meaning set forth in
Section 6(b).
"Class A Common Stock" shall mean the Class A common stock, par
value $.01 per share, of the Corporation.
"Common Share Equivalent Number " shall have the meaning set
forth in Section 3.
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"Common Share Equivalent Price" means initially $1.25 (the
quotient obtained by dividing the Liquidation Price by the initial Common Share
Equivalent Number), subject to adjustment pursuant to Section 10.
"Common Stock" shall mean the Company Common Stock and the Class
A Common Stock as the same exist as of the date hereof or as such stock may be
constituted from time to time.
"Company Common Stock" shall mean the common stock, par value
$.01 per share, of the Corporation.
"Current Market Price" shall mean the Current Market Price of the
Company Common Stock calculated in accordance with Section 10(a)(iv).
"Dividend Rate" shall have the meaning specified in Section 4.
"Employee Plans" shall mean any equity incentive plan, agreement,
bonus, award, stock purchase plan, stock option or other stock arrangement with
respect to any directors, officers or other employees of the Corporation.
"Equity Equivalents" shall mean Common Stock or rights, warrants,
options or other convertible securities (including the Repriced Preferred Stock
and any other convertible debt or equity) representing the right to acquire
Common Stock, or any securities that have similar common equity features, but
excluding the exercise of options which were granted prior to the initial public
offering of the Corporation or options that were or are set at the market price
at the time such options were or are granted by the Corporation or as determined
by the Board of Directors or a duly authorized committee thereof.
"Equity Put Notice" shall have the meaning specified in Section
6(a)(ii).
"Equity Put Purchase Price" shall have the meaning specified in
Section 6(a)(ii).
"Equity Share Value" shall mean (a) with respect to an
Acquisition Transaction in which the holders of Company Common Stock receive
consideration, the price per share received by such holders of Company Common
Stock, (b) with respect to a Stock Transaction, the price per share paid if
Company Common Stock is issued or sold in a Stock Transaction (or the conversion
price or exercise price (or equivalent price per share) if convertible
securities (or any other securities that have similar common equity features)
are issued or sold in a Stock Transaction), and (c) with respect to any other
Change of Control transaction, the Current Market Price of the Company Common
Stock determined as provided in Section 10(a)(iv) as of the date of such Change
of Control transaction. If the consideration in any Acquisition Transaction,
Stock Transaction or other Change of Control transaction includes any evidence
of indebtedness, securities or other non-cash assets (including securities of
any company other than the Corporation), the Equity Share Value shall include
the fair value of such evidence of indebtedness, securities or other non-cash
assets as agreed to by the Corporation and the Majority Holders (or, if not so
agreed, as determined in the manner described in the second to last sentence of
Section 10(a)(iv)).
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"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder.
"Group" shall have the meaning set forth in Rule 13d-5, as in
effect on the date hereof, under the Exchange Act.
"Holders" shall mean the holders of the Series D Preferred Stock.
"Junior Stock" shall have the meaning specified in Section 2.
"Junior Subordinated Note Indenture" means the Indenture dated as
of the Closing Date (as defined in the Purchase Agreement) relating to the
Junior Subordinated Notes, between the Corporation or issuer and Oak Hill
Capital Partners, L.P. as trustee.
"Junior Subordinated Notes" means the 11.3025% Junior
Subordinated Convertible Notes due 2007 issued pursuant to the Junior
Subordinated Note Indenture.
"Legal Holiday" shall mean any day on which banking institutions
are obligated or authorized to close in The City of New York.
"Liquidation Price" shall mean for each share of Series D
Preferred Stock, as of any date, an amount equal to $12,500 per share.
"Majority Holders" shall mean the Holders of a majority of the
then outstanding shares of Series D Preferred Stock.
"Market Price Determination Date" shall have the meaning
specified in Section 6(a)(ii).
"NASDAQ" shall mean the National Association of Securities
Dealers Automated Quotation System.
"Notice" shall have the meaning specified in Section 6(b).
"NYSE" shall mean the New York Stock Exchange.
"Parity Securities" shall have the meaning specified in Section
5.
"Permitted Holders" means (a) Leslie B. Otten (or, in the event
of his incompetence or death, his estate and his estate's heirs, executor,
administrator, committee or other representative (collectively, "Heirs")), (b)
any Person in which Leslie B. Otten and his Heirs, directly or indirectly, have
an 80% controlling interest, and/or (c) Oak Hill Capital Partners, L.P. and Oak
Hill Securities Fund, L.P. and their respective Affiliates and Associates.
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"Person" means any individual, firm, corporation, partnership,
limited partnership, limited liability company, association, trust,
unincorporated organization or other entity, as well as any syndicate or group
that would be deemed to be a person under Section 13(d)(3), as in effect on the
date hereof, of the Exchange Act.
"Preferred Stock" shall mean the Serial Preferred Stock, par
value $.01 per share, of the Corporation.
"Purchase Agreement" shall mean the Securities Purchase
Agreement, dated as of July 15, 2001, between the Corporation, Oak Hill Capital
Partners, L.P., and the other parties identified therein.
"Repriced Preferred Notice" shall have the meaning specified in
Section 6(a)(i).
"Repriced Preferred Stock" shall mean the 10.5% Repriced
Convertible Exchangeable Preferred Stock, $.01 par value per share, of the
Corporation.
"Senior Liquidation Stock" shall have the meaning specified in
Section 5.
"Senior Subordinated Note Indenture" means the Indenture dated as
of June 28, 1996, as amended and supplemented by the Supplemental Indenture
dated as of September 4, 1998, the Second Supplemental Indenture dated as of
September 4, 1998, the Third Supplemental Indenture dated as of August 6, 1999,
and the Fourth Supplemental Indenture dated as of October 6, 1999, and as it may
be further amended from time to time, relating to the Senior Subordinated Notes,
among the Corporation, as issuers, several of the Corporation's subsidiaries, as
guarantors, and The United States Trust Company of New York, as trustee.
"Senior Subordinated Notes" means the Corporation's Series A and
Series B Senior Subordinated Notes due 2006 issued pursuant to the Senior
Subordinated Note Indenture.
"Series B Preferred Stock" shall mean the 8.5% Series B
Convertible Participating Preferred Stock, par value $.01 per share, of the
Corporation.
"Series C-1 Preferred Stock" shall mean the 12% Series C-1
Convertible Participating Preferred Stock, par value $.01 per share, of the
Corporation.
"Series C-2 Preferred Stock" shall mean the 15% Series C-2
Preferred Stock, par value $.01 per share, of the Corporation.
"Stock Transaction" shall mean a Change of Control effected by
transaction or series of transactions pursuant to which the Corporation issues
or sells shares of Common Stock or rights, warrants, options or other
convertible securities representing the right to acquire Common Stock, or any
securities that have similar common equity features.
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"Stockholders" shall mean Oak Hill Capital Partners, L.P., Oak
Hill Securities Fund, L.P. and their respective Affiliates and Associates who
may now or hereafter own Equity Equivalents.
"Subsidiary" means, with respect to any Person, (i) any
corporation, association or other business entity of which more than 50% of the
total voting power of shares of capital stock entitled (without regard to the
occurrence of any contingency) to vote in the election of directors, managers or
trustees thereof is at the time owned or controlled, directly or indirectly, by
such Person or one or more of the other Subsidiaries of such Person (or a
combination thereof) and (ii) any partnership (a) the sole general partner of
the managing general partner of which is such Person or a Subsidiary of such
Person or (b) the only general partners of which are such person or of one or
more Subsidiaries of such Person (or any combination thereof).
Section 2. Rank.
All shares of Series D Preferred Stock, both as to payment of
dividends and to distribution of assets upon liquidation, dissolution or winding
up of the Corporation, whether voluntary or involuntary, shall rank (i) junior
to the Repriced Preferred Stock, the Series B Preferred Stock, the Series C-1
Preferred Stock and the Series C-2 Preferred Stock, (ii) senior to any class of
the Corporation's preferred stock hereafter issued (other than any class of
preferred stock which expressly ranks pari passu (based on relative liquidation
preference) with the Series D Preferred Stock) (the "Junior Preferred"), and
(iii) senior to all of the Corporation's now or hereafter issued Common Stock or
any other common stock of any class of the Corporation (collectively with the
Junior Preferred, the "Junior Stock").
Section 3. Common Equivalent.
For purposes of determining the rights and preferences of the
Holders of Series D Preferred Stock hereunder, each share of Series D Preferred
Stock shall initially be deemed to represent 10,000 shares of Company Common
Stock, subject to adjustment pursuant to the provisions of Section 10. The
number of shares of Common Stock which a share of Series D Preferred Stock shall
be deemed to represent from time to time, taking account of the adjustment
events described in Section 10, is referred to herein as the "Common Share
Equivalent Number."
Section 4. Dividends and Certain Restrictions.
The Holders shall not be entitled to receive any dividends or
distributions except as provided in this Section 4. If the Corporation declares
and pays dividends on the Common Stock or otherwise makes any distribution in
respect thereof, the Holders shall participate ratably in such dividends or
distributions based on the following formula: For each share of Series D
Preferred Stock, the Holder thereof shall be entitled to receive an amount equal
to the product of (x) the Common Share Equivalent Number multiplied by (y) the
amount of the dividend declared and paid or distribution made in respect of each
share of Common Stock.
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No dividends may be paid (or declared and set aside for payment),
on the Common Stock, and no other distributions may be made in respect of the
Common Stock, and no Common Stock (or any rights, options or warrants to
purchase Common Stock), may be redeemed, purchased or otherwise acquired for any
consideration by the Corporation, unless the Corporation shall simultaneously
declare and pay a dividend or make a distribution to the holders of the Series D
Preferred Stock as provided in this paragraph or unless, in the case of a
redemption, purchase or acquisition of Common Stock, the Corporation
simultaneously offers to redeem, purchase or acquire a corresponding portion
(based on the ratio that the Common Share Equivalent Number of all outstanding
shares of Series D Preferred Stock bears to the total number of outstanding
shares of Common Stock) at a price per share of Series D Preferred Stock equal
to the Common Share Equivalent Number of such share multiplied by the price per
share to be paid for each share of Common Stock, and otherwise on a basis and
with notice that the Board of Directors determines to be fair and appropriate in
light of the basis and notice on which holders of Common Stock are entitled to
participate in the offer. The record date for the payment of any dividend or
distribution under this Section 4 shall be not more than 60 nor less than 30
days preceding the date of payment thereof.
Any reference to "dividend" or "distribution" contained in this
Section 4 shall not be deemed to include any dividend or distribution made in
connection with any liquidation, dissolution or winding up of the Corporation,
whether voluntary or involuntary, that is effected in accordance with the
preferences and priorities set forth in the Corporation's certificate of
incorporation and all certificates of designation setting forth the rights of
the holders of the Corporation's Preferred Stock.
Section 5. Liquidation Right.
In the event of a liquidation, dissolution or winding up of the
Corporation, whether voluntary or involuntary, for each share of Series D
Preferred Stock the Holders shall be entitled to receive out of the assets of
the Corporation, whether such assets are stated capital or surplus of any
nature, before any payment shall be made or any assets distributed to the
holders of Common Stock or any other class or series of the Corporation's
capital stock ranking junior as to liquidation rights to the Series D Preferred
Stock an amount equal to the sum of (1) the Liquidation Price and (2) an
additional amount equal to the product of (x) the amount of the remaining assets
of the Corporation available for distribution after payment in full of the
Liquidation Price of the Series D Preferred Stock and the respective liquidation
preferences payable to the holders of any class or series of preferred stock of
the Corporation ranking senior as to liquidation rights to the Series D
Preferred Stock (the "Senior Liquidation Stock") and to the holders of any other
class or series of preferred stock (but excluding in each case any liquidation
preference that ranks equally with the Common Stock) multiplied by (y) a
fraction the numerator of which is the Common Share Equivalent Number and the
denominator of which is the sum of the number of shares of Common Stock then
outstanding and the aggregate Common Stock Equivalent Number for all outstanding
shares of Series D Preferred Stock; provided, however, that such rights shall
accrue to the Holders only in the event that the Corporation's payments with
respect to the liquidation preferences of the holders of the Senior Liquidation
Stock shall have been fully met. If the assets of the Corporation available for
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distribution after payment of the liquidation preferences of holders of all the
Senior Liquidation Stock are not sufficient to pay the full amount to which the
holders of outstanding shares of Series D Preferred Stock and the liquidation
preferences payable to the holders of any class or series of preferred stock
ranking (based on relative liquidation preference) pari passu with the Series D
Preferred Stock ("Parity Securities"), then the assets of the Corporation shall
be distributed ratably among the Holders and the holders of Parity Securities.
Upon any liquidation, dissolution or winding up of the
Corporation, after the holders of the Senior Liquidation Stock, the Series D
Preferred Stock and any Parity Securities shall have been paid in full the
amounts to which they shall be entitled, the remaining assets of the Corporation
may be distributed to the holders of Junior Stock.
Neither a consolidation, merger or other business combination of
the Corporation with or into another corporation or other entity nor a sale or
offer of all or part of the Corporation's assets for cash, securities or other
property shall be considered a liquidation, dissolution or winding up of the
Corporation for purposes of this Section 5 (unless in connection therewith the
liquidation of the Corporation is specifically approved).
Section 6. Redemption.
The Company shall purchase all or a portion (as applicable) of a
Holder's Series D Preferred Stock at the prices and on the dates, and otherwise
on the terms and subject to the conditions, provided in this Section 6.
(a) Redemption at the Option of the Holders.
(i) Each Holder may require the Corporation to purchase
such requesting Holder'sSeries D Preferred Stock on July 31, 2007, at a purchase
price per share of Series D Preferred Stock in cash in an amount equal to the
Liquidation Price.
No purchase of Series D Preferred Stock shall be made unless and
until all outstanding Repriced Preferred Stock has been converted, repurchased,
redeemed or otherwise retired or the holders of the Repriced Preferred Stock
have consented thereto in accordance with the requirements of the Corporation's
certificate of incorporation. If a repurchase of Series D Preferred Stock cannot
occur by reason of this paragraph, the Corporation, on the first Business Day
after all Repriced Preferred Stock has been so converted, repurchased, redeemed
or otherwise retired or such consent shall have been granted, shall give to each
Holder a written notice (a "Repriced Preferred Notice") stating:
(1) that Repriced Preferred Stock has been
converted, repurchased, redeemed or retired or that the consent of the holders
of the Repriced Preferred Stock has been obtained; and
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(2) that the Holder has the right to require
the Corporation to purchase such Holder's Series D Preferred Stock at a purchase
price per share of Series D Preferred Stock in cash in an amount equal to the
Liquidation Price;
(3) the purchase date, which date shall be no
earlier than 10 days nor later than 15 days from the date such notice is mailed;
and
(4) the instructions (which shall be consistent
with this Section 6(a)(i)) a Holder must follow in order to have its Series D
Preferred Stock purchased.
Holders electing to have Series D Preferred Stock purchased under
this Section 6(a)(i) will be required to surrender such Series D Preferred Stock
to the Corporation at any time during normal business hours at its principal
place of business (or such other office or agency of the Corporation as the
Corporation may designate by notice in writing to the Holders) at least five
Business Days prior to July 31, 2007 (or, if applicable, the purchase date
stated in the applicable Repriced Preferred Notice). Any Holder will be entitled
to withdraw its election if the Corporation receives, not later than three
Business Days prior to July 31, 2007 (or, if applicable, the purchase date
stated in the applicable Repriced Preferred Notice), a telegram, telex,
facsimile transmission or letter setting forth the name of such Holder, the
amount of the Series D Preferred Stock delivered by such Holder as to which its
election is to be withdrawn and a statement that such Holder is withdrawing its
election to have such Series D Preferred Stock purchased.
If, on July 31, 2007 (or, if applicable, the purchase date stated
in the applicable Repriced Preferred Notice), funds are not legally available to
the Corporation for purchase of the shares of Series D Preferred Stock that the
Holders have requested to be purchased by the Company, the Corporation shall
purchase on such date, at the Liquidation Price, pro rata among the electing
Holders based on the Liquidation Price of their shares, that number of shares of
Series D Preferred Stock which it can lawfully purchase, and from time to time
thereafter, as soon as funds are legally available, the Corporation shall
purchase at the Liquidation Price shares of Series D Preferred Stock pro rata
among the electing Holders until the Corporation has purchased all the shares of
Series D Preferred Stock that the Holders have requested be purchased.
In the event that the Corporation is in arrears in the purchase
of its Series D Preferred Stock pursuant to this Section 6(a)(i) (including,
without limitation, by reason of the fact that sufficient funds are not legally
available to pay the purchase price), or a purchase cannot occur by reason of
the fact that the Repriced Preferred Stock is outstanding, the Corporation may
not (i) purchase, redeem or pay dividends on any Junior Stock or (ii) make any
mandatory purchase or redemption of any Series D Preferred Stock or Parity
Securities except pro rata according to all such obligations then due or in
arrears.
Any shares of Series D Preferred Stock that are not purchased on
the scheduled purchase date shall continue to be outstanding and bear dividends
until purchased.
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(ii) After the 91st day following the date on which all
Senior Subordinated Notes are no longer outstanding, each Holder may require the
Corporation to purchase all or a portion of such requesting Holder's Series D
Preferred Stock at a purchase price in cash for each share of Series D Preferred
stock equal to the product obtained by multiplying the Common Share Equivalent
Number effective as of the Market Price Determination Date (as defined below)
in any year multiplied by the Current Market Price per share of Company Common
Stock, determined in the manner set forth in Section 10(a)(iv) below, as of the
Market Price Determination Date (the "Equity Put Purchase Price"). "Market Price
Determination Date" means (A) the 92nd day (or if such day is not a Business
Day, the succeeding Business Day) following the date on which all Senior
Subordinated Notes are no longer outstanding (the "Initial Market Price
Determination Date") and (B) in any subsequent year, the anniversary of the
Initial Market Price Determination Date (or, if such anniversary is not a
Business Day, the next succeeding Business Day).
If the Company Common Stock is then listed or admitted to trading
on the NYSE or another national securities exchange or prices for the Company
Common Stock are quoted on the NASDAQ National Market, the Company may, at its
option and in lieu of cash, pay the Equity Put Purchase Price by delivery to the
requesting Holders, for each share of Series D Preferred Stock, a number of
shares of Company Common Stock equal to the Common Share Equivalent Number of
such share of Series D Preferred Stock on the Market Price Determination Date.
In connection with any purchase of shares of Series D Preferred
Stock in any one year pursuant to this Section 6(a)(ii), if the Corporation
elects to pay the Equity Put Purchase Price in cash and the aggregate purchase
price for all shares of Series D Preferred Stock requested to be purchased by
the electing Holders would exceed $15,000,000, then the Corporation shall not be
obligated to purchase more than one third of the total number of outstanding
shares of Series D Preferred Stock on a fully diluted basis (after giving effect
to the conversion of any outstanding convertible securities) on the first date
on which a Holder requests a repurchase under this Section 6(a)(ii) (or such
greater number of shares with an aggregate Equity Put Purchase Price equal to
$15,000,000). If the Corporation elects to limit the number of shares of Series
D Preferred Stock to be purchased as provided in this paragraph, then any
reduction in the number of shares of Series D Preferred Stock shall be effected
pro rata as to all Holders based on the number of shares of Series D Preferred
Stock held by them.
Within 15 days following each Market Price Determination Date,
the Corporation shall give to each Holder a written notice (the "Equity Put
Notice") stating:
(1) that such Holder has the right to require
the Corporation to purchase all or a portion of such Holder's Series D Preferred
Stock at the Equity Put Purchase rice as set forth above;
(2) the purchase date, which date shall be no
earlier than 15 days nor later than 30 days from the date the Equity Put Notice
is mailed;
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(3) the Corporation's calculation of the Equity
Put Purchase Price and whether the Equity Put Purchase Price will be paid in
cash or in shares of Company Common Stock;
(4) if the Corporation elects to pay the Equity
Put Purchase Price in cash, and intends to limit the number of shares of Series
Preferred Stock to be purchased as provided above, the aggregate number of
shares of Series D Preferred Stock the Corporation intends to purchase (which
shall not be less than one-third of the total number of shares of Series D
Preferred Stock on a fully diluted basis as provided above, or such greater
number of shares with an Equity Put Purchase Price equal to $15,000,000); and
(5) the instructions a Holder must follow in
order to have its Series D Preferred Stock purchased pursuant to this Section
6(a)(ii).
Holders electing to have Series D Preferred Stock purchased under
this Section 6(a)(ii) shall be required, at least five Business Days prior to
the purchase date specified in the Equity Put Notice, to deliver written notice
to the Corporation at its principal place of business (or such other office or
agency of the Corporation as the Corporation may designate by notice in writing
to the Holders), that he or she elects to have such shares purchased by the
Corporation pursuant to this Section 6(a)(ii) and stating the number of shares
of Series D Preferred Stock to be purchased. Any Holder will be entitled to
withdraw its election at any time prior to the purchase date specified in the
Equity Put Notice for any reason.
A Holder requesting to have its shares of Series D Preferred
Stock purchased pursuant to this Section 6(a)(ii) shall not be entitled to
receive payment of the Equity Put Purchase Price for its shares until such
Holder shall cause to be delivered to the place specified in the Equity Put
Notice (i) the certificate(s) representing such shares of Series D Preferred
Stock to be purchased and (ii) transfer instrument(s) satisfactory to the
Corporation and sufficient to transfer such shares of Series D Preferred Stock
to the Corporation free of any adverse interests; provided that the foregoing is
subject to the other provisions of the Corporation's certificate of
incorporation or the Corporation's bylaws governing lost certificates generally.
If less than all of the shares represented by any such certificate are to be
purchased, a new certificate shall be issued without cost to the Holder thereof
representing the unredeemed shares.
No Equity Put Notice shall be issued pursuant to this Section
6(a)(ii) unless and until all outstanding Repriced Preferred Stock has been
converted, repurchased, redeemed or otherwise retired or the holders of the
Repriced Preferred Stock shall have consented to the issuance of the Equity Put
Notice in accordance with the requirements of the Corporation's certificate of
incorporation.
If funds are not legally available to the Corporation for
purchase of the shares of Series D Preferred Stock that the electing Holders
have requested to be purchased, the Corporation shall purchase on the scheduled
purchase date, at the Equity Put Purchase Price, pro rata among the Holders
based on the Liquidation Price of their shares, that number of shares of Series
D Preferred Stock which it can lawfully purchase, and from time to time
thereafter, as soon as funds are legally available, the Corporation shall
purchase at the Equity Put Purchase Price shares of Series D Preferred Stock pro
rata among the electing Holders until the Corporation has purchased all the
shares of Series D Preferred Stock that the electing Holders have requested be
purchased.
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If the Corporation defaults or is in arrears in its obligations
under this Section 6(a)(ii), (including, without limitation, by reason of the
fact that sufficient funds are not legally available to pay the Equity Put
Purchase Price), or if the Company is not permitted to deliver an Equity Put
Notice by reason of the fact that the Repriced Preferred Stock remains
outstanding, the Corporation may not (i) purchase, acquire, redeem or pay
dividends on any Junior Stock or (ii) purchase, redeem or otherwise acquire any
Series D Preferred Stock or Parity Securities except pro rata according to all
such obligations then due or in arrears.
Any shares of Series D Preferred Stock that are not purchased on
the scheduled purchase date shall continue to be outstanding and bear dividends
until purchased.
(b) Change Of Control. Upon the occurrence of a Change of
Control, each Holder may require the Corporation to purchase such requesting
Holder's Series D Preferred Stock at a purchase price in cash in an amount equal
to the greater of (i) the Liquidation Price and (ii) the Equity Share Value (the
"Change of Control Price").
Within 45 days following any Change of Control, the Corporation
shall give to each Holder a written notice (a "Change of Control Notice")
stating:
(i) that a Change of Control has occurred and that such
Holder has the right to require the Corporation to purchase such Holder's Series
D Preferred Stock at the Change of Control Price as set forth above;
(ii) the circumstances and relevant facts regarding such
Change of Control;
(iii) the purchase date, which date shall be no earlier
than 45 days nor later than 60 days from the date such notice is mailed; and
(iv) the instructions a Holder must follow in order to
have its Series C-1 Preferred Stock purchase pursuant to this Section 6(b).
The Change of Control Notice shall be given by first class mail,
postage prepaid, to each Holder of record of the Series D Preferred Stock, at
such Holder's address as it shall appear upon the stock transfer books of the
Corporation.
Any notice that is mailed as herein provided shall be
conclusively presumed to have been duly given, whether or not the Holder of the
Series D Preferred Stock receives such notice; and failure to give such notice
by mail, or any defect in such notice, to a Holder of any shares designated for
purchase shall not affect the validity of the proceedings for the purchase of
any shares of Series D Preferred Stock owned by other Holders to whom such
notice was duly given.
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Holders electing to have Series D Preferred Stock redeemed under
this Section 6(b) will be required to surrender such Series D Preferred Stock to
the Corporation at the address specified in the Change of Control Notice at
least five Business Days prior to the specified purchase date. Any Holder will
be entitled to withdraw its election if the Corporation receives, not later than
three Business Days prior to the redemption date, a telegram, telex, facsimile
transmission or letter setting forth the name of such Holder, the amount of the
Series D Preferred Stock delivered for purchase by such Holder as to which its
election is to be withdrawn and a statement that such Holder is withdrawing its
election to have such Series D Preferred Stock purchased.
No Change of Control Notice shall be issued pursuant to this
Section 6(b) unless and until all outstanding Repriced Preferred Stock has been,
or shall have been as part of the Change of Control, converted, repurchased,
redeemed or otherwise retired or the holders of the Repriced Preferred Stock
shall have consented to the issuance of the Change of Control Notice in
accordance with the requirements of the Corporation's certificate of
incorporation. If a Change of Control Notice cannot be issued by reason of this
paragraph, the Company shall deliver the Change of Control Notice on the first
Business Day after all outstanding Repriced Preferred Stock has been so
converted, repurchased, redeemed or otherwise retired or such consent shall have
been granted.
If any Senior Subordinated Notes are outstanding or were
outstanding within 91 days prior to the scheduled date of purchase under this
Section 6(b), (i) notwithstanding any other provision of this Section 6(b), the
purchase date of any Series D Preferred Stock shall not occur prior to the
purchase date for the Senior Subordinated Notes, and (ii) no purchase or
payments shall be made under this Section 6(b) so long as such purchase or
payments are prohibited by the terms of the Senior Subordinated Note Indenture.
Any purchase or payment not made by reason of this paragraph shall be deferred
until the first date on which such payment shall be permitted to be made under
the terms of the Senior Subordinated Note Indenture. If the Corporation is only
permitted to purchase a portion of the Series D Preferred Stock or to pay part
of the Change of Control Price (including, without limitation, paying only the
Liquidation Price and a portion of the premium), it shall immediately pay such
portion to the Holders pro rata in accordance with the Liquidation Price of
their shares.
If, upon any Change of Control, funds are not legally available
to the Corporation for purchase of the shares of Series D Preferred Stock that
the Holders have requested to be purchased, the Corporation shall purchase on
the scheduled purchase date, at the Change of Control Price, pro rata among the
Holders based on the Liquidation Price of their shares, that number of shares of
Series D Preferred Stock which it can lawfully purchase, and from time to time
thereafter, as soon as funds are legally available, the Corporation shall
purchase at the Change of Control Price shares of Series D Preferred Stock pro
rata among the electing Holders until the Corporation has purchased all the
shares of Series D Preferred Stock that the Holders have requested be purchased.
13
If the Corporation defaults or is in arrears in its obligations
under this Section 6(b), (including, without limitation, by reason of the fact
that sufficient funds are not legally available to pay the Change of Control
Price), or if the Company does not deliver a Change of Control Notice by reason
of the fact that the Repriced Preferred Stock remains outstanding, or if the
Company is not permitted to purchase all of the Series D Preferred Stock or to
pay all or any portion of the Change of Control Price for any reason, the
Corporation may not (i) purchase, acquire, redeem or pay dividends on any Junior
Stock or (ii) purchase, redeem or otherwise acquire any Series D Preferred Stock
or Parity Securities, except pro rata according to all such obligations then due
or in arrears.
The Corporation will not be required to pay the Change of Control
Price upon a Change of Control if a third party pays the Change of Control Price
in the manner, at the time and otherwise in compliance with the requirements set
forth in Section 6(b) applicable to the Change of Control Price payable by the
Corporation.
Any shares of Series D Preferred Stock that are not purchased on
the scheduled purchase date shall continue to be outstanding and bear dividends
until purchased.
(c) Conflict. If there is any conflict between the provisions of
this Section 6) and any applicable federal securities laws or regulations, the
provisions of such federal securities laws and regulations shall apply.
Section 7. Voting Rights.
(a) General.
The Series D Preferred Stock shall not have the right to vote
except as provided in Section 7(b) below and for voting rights required under or
granted by Delaware law. In connection with any right of the Holders of the
Series D Preferred Stock to vote separately as a class pursuant to Section 7(b)
or under Delaware law, each Holder will have one vote for each share of Series D
Preferred Stock held by it. Any shares of Series D Preferred Stock held by the
Corporation or any entity controlled by the Corporation shall not have voting
rights hereunder and shall not be counted in determining the presence of a
quorum.
(b) Class Voting Rights.
(i) Actions Requiring Affirmative Vote. So long as shares
of Series D Preferred Stock are outstanding, the Corporation shall not, directly
or indirectly, or through merger or consolidation with any other person, without
the affirmative vote or consent of the Majority Holders, with the Holders voting
separately as a class, (a) amend, alter or repeal (by merger, consolidation or
otherwise) any provision of the Corporation's certificate of incorporation or
the Corporation's by-laws, as amended, so as to affect adversely the relative
rights, preferences, powers (including, without limitation, voting powers) and
14
privileges of the Series D Preferred Stock, (b) authorize or issue any new class
of shares or Equity Equivalents having a preference with respect to dividends,
redemption and/or liquidation over, or on a parity with, the Series D Preferred
Stock, (c) reclassify any of its Junior Stock into shares having a preference
with respect to dividends, redemption and/or liquidation over, or on a parity
with, the Series D Preferred Stock, or (d) issue any additional shares of Series
D Preferred Stock (other than upon conversion of the Junior Subordinated Notes).
(ii) Special Meeting. Whenever the rights described above
shall vest pursuant to this Section 7(b) or Delaware law, such rights may be
exercised by the vote of the Majority Holders present and voting, in person or
by proxy, at a special meeting of Holders or at the next annual meeting of
stockholders, or by written consent of the Majority Holders without a meeting.
Unless such action shall have been taken by written consent as aforesaid, a
special meeting of the Holders for the exercise of any such right shall be
called by the Secretary of the Corporation as promptly as possible in compliance
with applicable law and regulations, and in any event within 10 days after
receipt of a written request signed by the Holders of record of at least 25% of
the then outstanding shares of the Series D Preferred Stock, subject to any
applicable notice requirements imposed by law or by any national securities
exchange on which any Series D Preferred Stock is listed. Such meeting shall be
held at the earliest practicable date thereafter.
(iii) Stockholders' Right To Call Meeting. If any meeting
of the Holders required by this paragraph (b) to be called shall not have been
called within 10 days after personal service of a written request therefor upon
the Secretary of the Corporation or within 15 days after mailing the same within
the United States of America by registered mail addressed to the Secretary of
the Corporation at its principal office, subject to any applicable notice
requirements imposed by law or any national securities exchange on which any
Series D Preferred Stock is then listed, then the Holders of record of at least
25% of the then outstanding shares of the Series D Preferred Stock may designate
in writing a Holder of the Series D Preferred Stock to call such meeting at the
reasonable expense of the Corporation, and such meeting may be called by such
Person so designated upon the notice required for annual meetings of
stockholders or such shorter notice (but in no event shorter than permitted by
law or any national securities exchange on which the Series D Preferred Stock is
then listed) as may be acceptable to the Majority Holders. Any Holder of Series
D Preferred Stock so designated shall have reasonable access to the stock books
of the Corporation relating solely to the Series D Preferred Stock for the
purpose of causing such meeting to be called pursuant to these provisions.
(iv) Quorum. At any meeting of the Holders called in
accordance with the provisions of this paragraph (b), the presence in person or
by proxy of the Majority Holders with the Holders of Series D Preferred Stock
voting as a single class shall be required to constitute a quorum; in the
absence of a quorum, a majority of the Holders present in person or by proxy
shall have power to adjourn the meeting from time to time without notice, other
than announcement at the meeting, until a quorum shall be present.
15
Section 8. Outstanding Shares.
For purposes of this Certificate of Designation, all shares of
Series D Preferred Stock shall be deemed outstanding except from the date of
registration of transfer, all shares of Series D Preferred Stock held of record
by the Corporation or any subsidiary of the Corporation.
Section 9. Status of Acquired Shares.
The Corporation shall take all such actions as are necessary to
cause any shares of Series D Preferred Stock redeemed by the Corporation or
otherwise acquired by the Corporation, to be restored to the status of
authorized and unissued shares of Preferred Stock, without designation as to
series, and such shares may thereafter be issued, but not as shares of Series D
Preferred Stock unless the other provisions of this Resolution have been
complied with.
Section 10. Anti-Dilution Adjustments
(a) The Common Share Equivalent Number and the Common Share
Equivalent Price shall be adjusted from time to time as follows: Whenever the
Common Share Equivalent Number is adjusted pursuant to paragraph (a)(i) below,
the Common Share Equivalent Price shall be automatically adjusted to equal the
quotient obtained by dividing the Liquidation Price by the adjusted Common Share
Equivalent Number, and whenever the Common Share Equivalent Price is adjusted
pursuant to paragraph (b)(ii) or (iii) below, the Common Share Equivalent Number
shall also be automatically adjusted by dividing the Common Share Equivalent
Number in effect as of the Adjustment Date by the adjusted Common Share
Equivalent Price.
(i) In case the Corporation shall (i) pay a dividend in
shares of any class of its Common Stock to all holders of such class, (ii) make
a distribution in shares of any class of its Common Stock to all holders of such
class, (iii) subdivide any of its outstanding Common Stock into a greater number
of shares, or (iv) combine any of its outstanding Common Stock into a smaller
number of shares, the Common Share Equivalent Number shall be adjusted so that
following such event the Common Share Equivalent Number shall represent a
percentage of the number of outstanding shares of Common Stock equal to the
percentage of the number of shares of Common Stock outstanding immediately
preceding the happening of such event. An adjustment made pursuant to this
subsection (i) shall become effective immediately after the record date in the
case of a dividend in shares or distribution and shall become effective
immediately after the effective date in the case of subdivision or combination.
(ii) In case the Corporation shall issue Equity Equivalents
to all or substantially all holders of any class of its Common Stock or to any
other person (other than the Holders) entitling such person or persons to
subscribe for, purchase or otherwise acquire shares of Common Stock (or
securities in any manner representing the right to acquire Common Stock or other
16
Equity Equivalent) at a price per share (or conversion or other equivalent price
per share) that is less than the then Current Market Price per share of Common
Stock (as determined in accordance with subsection (v) below) at the record date
for the determination of shareholders entitled to receive such Equity
Equivalents on the date of issuance thereof or, with respect to issuances to
persons other than Holders, on the issue date, as applicable, the Common Share
Equivalent Price in effect immediately prior thereto shall be adjusted so that
the same shall equal the price determined by multiplying the Common Share
Equivalent Price in effect immediately prior to such record date or issue date,
as applicable, by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding on such record date or issue date, as
applicable, plus the number of shares which the aggregate offering price of the
total number of shares of Common Stock or other Equity Equivalent so offered,
(or the aggregate conversion price or other equivalent price of the securities
so offered) would purchase at such Current Market Price (as defined in
subsection (iv) below), and of which the denominator shall be the number of
shares of Common Stock outstanding on such record date or issue date, as
applicable, plus the number of additional shares of Common Stock offered (or
into which the convertible securities so offered are convertible or, in the case
of other Equity Equivalents, the number of shares of Common Stock represented by
such Equity Equivalent). Such adjustment shall be made successively whenever any
Equity Equivalents are issued, and shall become effective immediately after such
record date or such sale date, as applicable. If at the end of the period during
which such Equity Equivalents are exercisable not all such Equity Equivalents
shall have been exercised, the adjusted Common Share Equivalent Price shall be
readjusted to what it would have been based upon the number of additional shares
of Common Stock actually issued (or the number of shares of Common Stock
issuable upon conversion of convertible securities or other Equity Equivalents
actually issued).
(iii) In case the Corporation shall distribute to all or
substantially all holders of any class of Common Stock any shares of capital
stock of the Corporation (other than Common Stock), evidences of indebtedness or
other non-cash assets (including securities of any company other than the
Corporation), or shall distribute to all or substantially all holders of any
class of Common Stock rights or warrants to subscribe for or purchase any of its
securities (excluding those referred to in subsection (ii) above), then in each
such case the Common Share Equivalent Price shall be adjusted so that the same
shall equal the price determined by multiplying the Common Share Equivalent
Price in effect immediately prior to the date of such distribution by a fraction
of which the numerator shall be the Current Market Price per share (as defined
in subsection (iv) below) of the Company Common Stock on the record date
mentioned below less the fair market value on such record date (as agreed to by
the Corporation and the Majority Holders or, if not so agreed, as determined in
a manner similar to the determination of Current Market Price described in the
second to last sentence of subsection (iv) below) of the portion of the capital
stock or assets or evidences of indebtedness so distributed or of such rights or
warrants applicable to one share of Common Stock (determined on the basis of the
number of shares of Common Stock outstanding on the record date), and of which
the denominator shall be the Current Market Price per share (as defined in
subsection (iv) below) of the Company Common Stock on such record date. Such
adjustment shall become effective immediately after the record date for the
determination of shareholders entitled to receive such distribution.
17
(iv) For the purpose of any computation under subsections
(ii) and (iii) of this Section 10(a), the current market price (the "Current
Market Price") per share of Company Common Stock on any date shall be deemed to
be equal to the average of the daily closing prices of the Company Common Stock
on the NYSE or, if not then listed or traded on the NYSE, such other national
securities exchange or the NASDAQ National Market if the Company Common Stock is
then listed or traded thereon for the 10 trading days immediately prior to the
record date or date of issuance with respect to distributions, issuances or
other events requiring such computation under subsection (ii) or (iii) above;
provided that in the case of an underwritten public offering of Equity
Equivalents which are currently traded, the Current Market Price shall be the
closing price of the Company Common Stock on the issuance date, less an
allowance for a customary discount to the current market trading price which is
reasonably required to effect such offering. The closing price for each day
shall be the closing price on the NYSE or the last reported sales price or, if
shares of the Company Common Stock are not listed or admitted to trading on the
NYSE, on the principal national securities exchange on which the Company Common
Stock is listed or admitted to trading or, if not listed or admitted to trading
on any national securities exchange, the closing sales price of the Company
Common Stock as quoted on the NASDAQ National Market. Notwithstanding the
provisions of this subsection (iv), if (A) the Common Stock is listed or traded
on the NYSE or other national securities exchange or quoted on the NASDAQ
National Market but either (1) the prices described in this Section 10(c)(iv)
are not available or (2) the Majority Holders determine that the such prices do
not adequately reflect the fair value of a share of Company Common Stock due to
limited float or trading volume, or (B) the Common Stock is not listed on the
NYSE or other national securities market or quoted on the NASDAQ National
Market, the Current Market Price shall be the fair value of a share of Company
Common Stock as agreed by the Corporation and the Majority Holders or if the
Corporation and the Majority Holders are unable to agree, the fair value of a
share of Company Common Stock as determined by a nationally recognized
investment bank selected jointly by the Corporation and the Majority Holders (or
if they are unable to agree on such an investment bank, as determined by a
nationally recognized investment bank selected by lot by the Board of Directors
from a total of four such investment banks (two of which shall be selected by
the Corporation and two of which shall be selected by the Majority Holders)).
The fees and expenses of such investment bank shall be paid by the Corporation.
(v) No Adjustment. No adjustment in the Common Share
Equivalent Number or Common Share Equivalent Price shall be required unless the
adjustment would require an increase or decrease of at least 1% in the Common
Share Equivalent Number or Common Share Equivalent Price as last adjusted;
provided, however, that any adjustments which by reason of this subsection (v)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Section 10 shall be made
to the nearest cent or to the nearest one-hundredth of a share, as the case may
be.
18
No adjustment need be made for a transaction referred to in
paragraph (b)(i), (ii) or (iii) above if all Holders of Series D Preferred Stock
are entitled to participate in the transaction on a basis and with notice that
the Board of Directors determines to be fair and appropriate in light of the
basis and notice on which holders of Common Stock participate in the
transaction. The Corporation shall give 30 days' prior notice to any transfer
agent and to the Holders of the Series D Preferred Stock of any such
determination.
No adjustment need be made for (a) issuances of Common Stock
pursuant to a Corporation plan for reinvestment of dividends or interest, (b) a
change in the par value or a change to no par value of the Common Stock and (c)
the issuance of Common Stock to directors, officers and employees of the
Corporation and its subsidiaries pursuant to any stock-based incentive plan duly
approved by the Board of Directors or any duly authorized committee thereof.
(vi) Notice of Adjustment. Whenever the Common Share
Equivalent Number or the Common Share Equivalent Price is adjusted, the
Corporation shall promptly mail to holders of the Series D Preferred Stock and
to the transfer agent a notice of the adjustment briefly stating the facts
requiring the adjustment and the manner of computing it. The certificate shall
be conclusive evidence of the correctness of such adjustment.
(vii) Notice of Certain Transactions.
In the event that:
(A) the Corporation takes any action which would
require an adjustment in the Common Share Equivalent Number or the Common Share
Equivalent Price;
(B) the Corporation consolidates or merges with, or
transfers all or substantially all of its assets to, another corporation and
shareholders of the Corporation must approve the transaction; or
(C) there is a dissolution or liquidation of the
Corporation, the Corporation shall mail to holders of the Series D Preferred
Stock and to any transfer agent a notice stating the proposed record or
effective date, as the case may be. The Corporation shall mail the notice at
least 10 days before such date. Failure to mail such notice or any defect
therein shall not affect the validity of any transaction referred to in clause
(A), (B) or (C) of this Section 10(b)(vii).
(viii) Effect of Reclassification, Consolidation, Merger or
Sale on Reference Number and Reference Price. If any of the following shall
occur, namely: (a) any reclassification or change 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, or as a result of a subdivision or combination, or any other change
for which an adjustment is provided in (c)(i), (ii) or (iii) above); (b) any
consolidation or merger to which the Corporation is a party other than a merger
19
in which the Corporation is the continuing corporation and which does not result
in any reclassification of, or change (other than a change in name, or in par
value, or from par value to no par value, or from no par value to par value, or
as a result of a subdivision or combination) in, outstanding shares of Common
Stock; or (c) any sale or conveyance of all or substantially all of the assets
of the Corporation as an entirety, then the Corporation, or such successor or
purchasing corporation, as the case may be, shall, as a condition precedent to
such reclassification, change, consolidation, merger, sale or conveyance, ensure
that effective provision be made in the agreements relating to such transaction
and the certificate of incorporation of the resulting or surviving corporation
or otherwise such that each the Holder will receive, in exchange for it's Series
D Preferred Stock, either (1) shares of a class of securities of the Corporation
or its successor that is substantially equivalent to (and not less favorable
than) the Series D Preferred Stock, including, without limitation, with respect
to rank, antidilution protection, rights, dividends and rights or liquidation,
or (2) with respect to any Holder who so elects, into such Holder's
proportionate share (based on the Common Share Equivalent Number of such
Holder's Series D Preferred Stock and assuming that such Holder's Series D
Preferred Stock is Common Stock) the same kind and amount of shares of stock and
the securities and property (including cash) receivable by a holder of Common
Stock upon such reclassification, change, consolidation merger, sale or
conveyance. If in the case of any such consolidation, merger, sale or
conveyance, the stock or other securities and property (including cash)
receivable thereupon by a holder of Common Stock include shares of stock or
other securities and property of a corporation other than the successor or
purchasing corporation, as the case may be, in such consolidation, merger, sale
or conveyance, then effective provision shall also be made in the certificate of
incorporation of such other corporation or otherwise of such additional
antidilution provisions as are necessary to protect the interests of the holders
of the Series D Preferred Stock by reason of the foregoing. The provisions of
this Section 10(a)(viii) shall similarly apply to successive consolidations,
mergers, sales or conveyances. The provisions of this Section 10(a)(viii) shall
be in addition to any other rights the Holders of Series D Preferred Stock may
have by operation of law, contract or otherwise.
(b) Deemed Adjustment of Unissued Shares.
All adjustments to the Common Share Equivalent Number
and the Common Share Equivalent Price pursuant to this Section 10 shall apply to
and be effective in respect of all shares of Series D Preferred Stock whether or
not issued and outstanding (or deemed to be outstanding) pursuant to the terms
of this Certificate of Designation. If an adjustment event occurs, the
adjustment to the Common Share Equivalent Number and the Common Share Equivalent
Price shall take effect (1) in the case of shares of Series D Preferred Stock
that are issued and outstanding (including, for this purpose, shares that are
deemed not to be outstanding by reason of the provisions of Section 8 hereof),
on the applicable Adjustment Date, and (2) in the case of all shares of Series D
Preferred Stock that are not outstanding on the applicable Adjustment Date, on
the date such shares are subsequently issued, automatically upon such issuance.
20
Section 11. Reports.
So long as the Series D Preferred Stock remains outstanding, the
Corporation shall cause its annual reports to stockholders and any quarterly or
other financial reports and information furnished by it to stockholders pursuant
to the requirements of the Exchange Act, to be mailed to the holders of the
Series D Preferred Stock (contemporaneously with the mailing of such materials
to the Corporation's stockholders) at their addresses appearing on the books of
the Corporation. If the Corporation is not required to furnish annual or
quarterly reports to its stockholders pursuant to the Exchange Act, it shall
cause its financial statements, including any notes thereto (and with respect to
annual reports, an auditors' report by a nationally recognized firm of
independent certified public accounts), a "Management's Discussion and Analysis
of Financial Condition and Results of Operations" and such other information
which the Corporation would otherwise by required to include in annual and
quarterly reports filed under the Exchange Act, to be mailed to the holders of
the Series D Preferred Stock, within 120 days after the end of each of the
Corporation's fiscal years and within 60 days after the end of each of its first
three fiscal quarters.
Section 12. Severability of Provisions.
Whenever possible, each provision hereof shall be interpreted in
a manner as to be effective and valid under applicable law, but if any provision
hereof is held to be prohibited by or invalid under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating or otherwise adversely affecting the remaining
provisions hereof. If a court of competent jurisdiction should determine that a
provision hereof would be valid or enforceable if a period of time were extended
or shortened or a particular percentage were increased or decreased, then such
court may make such change as shall be necessary to render the provision in
question effective and valid under applicable law.
21
IN WITNESS WHEREOF, American Skiing Company has caused this Certificate
to be signed by William J. Fair, its President and Chief Executive Officer, this
____ day of July, 2001.
AMERICAN SKIING COMPANY
By: ______________________________
Name: William J. Fair
Title: President and Chief
Executive Officer