FORM OF EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (the "Agreement") is made and entered into as of
______ __, 1997 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 Xxxxx and Xxxxxx the
following number of duly authorized, validly issued, fully paid and
nonassessable shares of Company Common Stock:
Xxxxx: ___ shares of Company Common Stock for Susan's
partnership interests in Resort L.P.
___ shares of Company Common Stock for Susan's
partnership interests in Hotel L.P.
___ shares of Company Common Stock for Susan's
partnership interests in Realty L.P.
___ shares of Company Common Stock for Susan's common
stock in Ski
___ shares of Company Common Stock for Susan's common
stock in Hotel
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___ shares of Company Common Stock for Susan's common
stock in Realty
___ shares of Company Common Stock for Susan's common
stock in Foods
Xxxxxx: ___ shares of Company Common Stock for Steven's
partnership interests in Resort L.P.
___ shares of Company Common Stock for Steven's
partnership interests in Hotel L.P.
___ shares of Company Common Stock for Steven's
partnership interests in Realty L.P.
___ shares of Company Common Stock for Steven's common
stock in Foods
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, other than 70,000 shares of Company Common Stock that is
registered on Form SB-2 and subject to an over-allotment option (the "Registered
Stock"). Except for the Registered 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
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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 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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