FORM OF EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (the "Agreement") is made and entered into as of
, 1998 by and among Xxxxxx X. Xxxxxxxxxxx, a resident of the State of
Vermont, ("Xxxxxx"), Xxxxx X. Xxxxxxxxxxx, a resident of the State of Vermont
("Xxxxx"; Xxxxx and Xxxxxx are sometimes referred to herein collectively as the
"Plausteiners"), Snowdance Ski Company ("Ski"), a Delaware corporation and
general partner of Ascutney Mountain Resort, L.P., Snowdance Hotel Company
("Hotel"), a Delaware corporation and general partner of Ascutney Mountain
Resort Hotel, L.P., Snowdance Realty Company ("Realty"), a Delaware corporation
and general partner of Ascutney Mountain Resort Realty, L.P.; Steven, Susan,
Ski, Hotel and Realty are sometimes collectively referred to herein as the
"Partners" and individually as a "Partner") and Snowdance, Inc., a Delaware
corporation (the "Company").
RECITALS
WHEREAS, the partnership interests (the "Resort Partnership Interests")
of Ascutney Mountain Resort, L.P. ("Resort L.P.") are owned beneficially and
held of record as follows:
Ski ..................................................... 1%
Xxxxx ................................................... 89%
Xxxxxx .................................................. 10%;
WHEREAS, the partnership interests (the "Hotel Partnership Interests") of
Ascutney Mountain Resort Hotel, L.P. ("Hotel L.P.") are owned beneficially and
held of record as follows:
Hotel.................................................... 1%
Xxxxx ................................................... 89%
Xxxxxx .................................................. 10%;
WHEREAS, the partnership interests (the "Realty Partnership Interests")
of Ascutney Mountain Resort Realty, L.P. ("Realty L.P.") are owned beneficially
and held of record as follows:
Realty .................................................. 1%
Xxxxx ................................................... 89%
Xxxxxx .................................................. 10%;
WHEREAS, Xxxxx is the sole beneficial and record owner of the outstanding
capital stock of Ski, Hotel and Realty;
WHEREAS, Xxxxx and Xxxxxx are the only beneficial and record owners of the
outstanding capital stock of Ascutney Mountain Foods, Inc. ("Foods"), a Vermont
corporation; and
WHEREAS, after the exchange below, the parties also desire to terminate
the following Partnership Agreements, each dated as of August 23, 1993 (the
"Partnership Agreements"): Agreement of Limited Partnership Agreement among
Ski, Xxxxx and Xxxxxx; Agreement of Limited Partnership Agreement among Hotel,
Xxxxx and Xxxxxx and Agreement of Limited Partnership Agreement among Realty,
Xxxxx and Xxxxxx.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual agreements set forth
herein, the parties hereto agree as follows:
1. Transfer of Partnership Interests by the Plausteiners. Each of the
Plausteiners hereby transfers and assigns to the Company, and the Company hereby
acquires from the Plausteiners, (a) all of the Resort Partnership Interests
owned beneficially and held by the Plausteiners, (b) all of the Hotel
Partnership Interests owned beneficially and held by the Plausteiners and (c)
all of the Realty Partnership Interests owned beneficially and held by the
Plausteiners (collectively, the "Partnership Interests").
2. Transfer of Common Stock by Xxxxx and Xxxxxx. Xxxxx hereby transfers
and assigns to the Company, and the Company hereby acquires from Xxxxx, (a) all
of the common stock of Ski owned beneficially and held by Xxxxx, (b) all of the
common stock of Hotel owned beneficially and held by Xxxxx and (c) all of the
common stock of Realty owned beneficially and held by Xxxxx (collectively, the
"GP Common Stock"). In addition, the Plausteiners hereby transfer and assign to
the Company and the Company hereby acquires from the Plausteiners all of the
common stock of Foods owned beneficially and held by the Plausteiners.
3. Issuance of Shares by the Company. In exchange for each of the
Partnership Interests transferred by the Plausteiners to the Company pursuant to
Section 1 and all of the GP Common Stock transferred by Xxxxx to the Company
pursuant to Section 2, the Company hereby issues to each of Xxxxx and Xxxxxx
603,750 of duly authorized, validly issued, fully paid and nonassessable
shares of Company Common Stock.
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4. Termination of Partnership Agreements. After the exchanges pursuant to
Sections 1, 2 and 3 above, the parties agree that the Partnership Agreements are
hereby terminated and shall have no further force and effect.
5. Representations of the Partners.
5.1 Each of the Partners severally represents and warrants to the
Company that he or she or it has valid and marketable title to its respective
Resort Partnership Interests, Hotel Partnership Interests and Realty Partnership
Interests set forth in the Recitals, free and clear of all liens, charges,
encumbrances, equities, claims, options, proxies, pledges, security interests
and rights of whatever nature, and the transfer of such partnership interests to
the Company by the Plausteiners, directly, and by Ski, Hotel and Realty,
indirectly, hereunder shall pass good and marketable title to such Resort
Partnership Interests, Hotel Partnership Interests and Realty Partnership
Interests, free and clear of all liens, charges, encumbrances, equities, claims,
options, proxies, pledges, security interests and rights of whatever nature.
5.2 Each of the Partners severally represents and warrants to the
Company that he or she or it has the absolute and unrestricted right, power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder, and this Agreement is a valid and binding agreement of each of the
Partners enforceable against each of them in accordance with its terms.
5.3 Each of the Plausteiners severally represents and warrants to the
Company that he or she is acquiring the Company Common Stock for investment and
not with a view to or for sale in connection with any distribution of the
Company Common Stock. Each of the Plausteiners severally acknowledges that the
Company Common Stock has not been registered under the Securities Act of 1933,
as amended, that any disposition of the Company Common Stock is subject to
restrictions imposed by federal and state law, and that the certificates
representing the Company Common Stock will bear a restrictive legend. Each of
the Plausteiners severally also acknowledges that he or she cannot dispose of
the Company Common Stock absent registration and qualification, or an
available exemption from registration and qualification.
6. Representation of the Company. The Company represents and warrants to
each of the Plausteiners (i) that the Company has the absolute and unrestricted
right, power and authority to execute and deliver this Agreement and to perform
its obligations
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hereunder, (ii) this Agreement is a valid and binding agreement of the Company
enforceable against the Company in accordance with its terms and (iii) that the
shares of Company Common Stock have been duly authorized and validly issued, and
are fully paid and nonassessable.
7. Further Assurances. Each of the parties hereto covenants that he, she
or it shall cooperate with the other parties hereto and execute such further
instruments and documents as any of the parties shall reasonably request to
carry out the transactions contemplated by this Agreement.
8. Governing Law. This Agreement shall be governed by and interpreted in
accordance with the laws of the State of New York.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement to be
effective as of the date first written above.
____________________________________
XXXXXX X. XXXXXXXXXXX
____________________________________
XXXXX X. XXXXXXXXXXX
____________________________________
SNOWDANCE SKI COMPANY
By: ________________________________
Its:________________________________
SNOWDANCE HOTEL COMPANY
By: ________________________________
Its:________________________________
SNOWDANCE REALTY COMPANY
By: ________________________________
Its:________________________________
SNOWDANCE, INC.
By: ________________________________
Its:________________________________
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