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EXHIBIT 2.2
FIRST AMENDMENT TO MERGER AGREEMENT
This First Amendment to Merger Agreement (this "Amendment") is entered
into as of this 22nd day of December, 1997 by and among BOOTH CREEK SKI GROUP,
INC., a Delaware corporation (together with its successors and permitted
assigns, "Purchaser"), LMRC ACQUISITION CORP., a New Hampshire corporation and
an indirect wholly-owned subsidiary of Purchaser ("Acquisition Sub"), and LOON
MOUNTAIN RECREATION CORPORATION, a New Hampshire corporation (the "Company").
RECITALS
WHEREAS, Purchaser, Acquisition Sub and the Company are parties to that
certain Agreement and Plan of Merger, entered into as of September 18, 1997
(the "Merger Agreement"), and are now desirous of amending the Merger Agreement
as set forth herein.
NOW THEREFORE, in consideration of the premises and the mutual
representations, warranties, covenants and agreements contained in this
Amendment, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by each of the parties, the parties
hereto hereby agree as follows:
ARTICLE I
AMENDMENTS TO THE MERGER AGREEMENT
1.1 Section 1.2 of the Merger Agreement is amended by deleting the
definitions "Aggregate Merger Consideration," "Closing Date" and "Merger" where
they appear in such section and by replacing such definitions with the
following:
"Aggregate Merger Consideration. Seventeen
Million Nine Hundred Ninety-Nine Thousand Nine Hundred and
Seventy Dollars ($17,999,970) (subject to the Price Adjustment, if any,
required pursuant to Section 2.2(b)) plus an additional amount equal to
interest that would have accrued on such amount at a per annum interest
rate of six percent (6%) for the number of days beginning on and
including December 1, 1997 to and excluding the Closing Date."
"Closing Date. (a) Ten (10) business days
following the later of (i) the approval of the holders of the
Company Common Stock of this Agreement (as amended by the First
Amendment to Merger Agreement) pursuant to a duly convened
shareholders' meeting of the Company which satisfies the requirements
of Section 6.1(m) and (ii) the date that the Federal District Court in
the RESTORE Pipeline Litigation affirmatively denies any Pipeline Case
Injunction or (b) such other date as Purchaser and the Company may
mutually agree in writing, in either case, upon which the
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Closing shall occur; provided, however, that the parties hereto
agree to grant one fifteen (15) business day extension of the initial
Closing Date which would apply pursuant to clause (a) above if
requested by another party hereto so long as the parties are working in
good faith to finalize the remaining closing conditions and deliveries
hereunder and conclude in good faith that there is a reasonable
likelihood that all such remaining conditions and deliveries can be
satisfied during such extension period and may mutually agree to grant
such additional extensions as they deem necessary."
"Merger. The merger of Acquisition Sub with and into
the Company as referred to in the Recitals to this Agreement as
consummated in accordance with New Hampshire Law pursuant to this
Agreement including, without limitation, as amended by the First
Amendment to Merger Agreement."
1.2 Section 1.2 of the Merger Agreement is amended by adding the
following new definitions in proper alphabetical sequence:
"CWA Penalty. The total fine, penalty and
liability, and associated costs and expenses (including
attorney and expert witness fees) imposed upon the Company and the
Subsidiary by the court in the RESTORE Penalty Litigation in connection
with any and all violations of the Federal Clean Water Act, 33 U.S.C. '
1251 et seq., any related Order, and any similar state, local or
federal law, by the Company or the Subsidiary through action or
omission occurring either before or during the 1996-1997 ski season,
including but not limited to any fine, penalty or liability, and any
associated cost or expense for pumping, draining, releasing or
otherwise discharging water and any associated pollutants into Loon
Pond."
"First Amendment Date. December 22, 1997."
"First Amendment to Merger Agreement. That certain
First Amendment to Merger Agreement dated as of the First
Amendment Date by and among Purchaser, Acquisition Sub and the
Company.
"Pipeline Case Injunction. If the Company or
the Subsidiary shall receive an Order from the United States
District Court for the District of New Hampshire in the RESTORE
Pipeline Litigation, affirming the plaintiff's request for a
declaratory judgment declaring that the defendant(s) violated federal
law in reviewing and approving the installation and use of a new
sixteen inch pipeline crossing Forest Service land and/or the
appurtenant water withdrawal and snowmaking apparatus and/or granting
an injunction which has the effect of substantially limiting the
Company's use
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of such new sixteen inch pipeline and/or the appurtenant water
withdrawal and snowmaking apparatus."
"RESTORE Penalty Litigation. The lawsuit styled
Xxxxxx and RESTORE v. The United States Department of Agriculture, et
al., Docket No. C-95-50-B filed in the United States District Court
for the District of New Hampshire."
"RESTORE Pipeline Litigation. The lawsuit styled
RESTORE, et al. v. The United States Department of Agriculture, et al.,
Docket No. C-97-435-B filed in the United States District Court for
the District of New Hampshire."
1.3 Section 3.39 of the Merger Agreement is amended in its
entirety as follows:
"3.39 Proxy Statement. Each proxy statement
to be sent to the shareholders of the Company in connection
with the shareholders meetings referred to in Sections 5.10(a) and
5.10(b) (each such proxy statement, as amended or supplemented, is
herein referred to as "Proxy Statement"), shall not, at the date each
Proxy Statement (or any amendment thereof or supplement thereto) is
first mailed to shareholders or at the time of such shareholders
meetings, contain any statement which, at such time and in light of the
circumstances under which it shall be made, is false or misleading with
respect to any material fact, or shall omit to state any material fact
required to be stated therein or necessary in order to make the
statements made therein, in the light of the circumstances under which
they are made, not misleading. Each Proxy Statement shall comply in all
material respects with New Hampshire Law and shall include, without
limitation, a notice which complies with RSA 293-A:13:20 of New
Hampshire Law."
1.4 Article IV of the Merger Agreement is amended by adding the
following new Section 4.9:
"4.9 Funding. Purchaser has through its
subsidiaries since November 1996 consummated acquisitions of
(1) Waterville Valley Ski Resort, Inc. and Mount Cranmore Ski Resort,
Inc. (d/b/a the Waterville Valley and Mount Cranmore ski resorts in New
Hampshire) for approximately $17.5 million, (2) Sierra-at-Tahoe, Inc.
and Trimont Land Company (d/b/a the Sierra-at-Tahoe and
Northstar-at-Tahoe ski resorts in Northern California) and Bear
Mountain, Inc. (d/b/a the Bear Mountain ski resort in Southern
California) for approximately $121.5 million, (3) Ski Lifts, Inc.
(d/b/a the Snoqualmie Pass ski resort in Northwest Washington) for
approximately $14.0 million, and (4) Grand Targhee Incorporated (d/b/a
the Grand Targhee ski resort in Wyoming) for approximately $7.9
million, and
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such acquisitions have been financed through proceeds obtained
from, among other things, the issuance of debt and equity securities
and from bank borrowings. Based on this experience and current market
conditions, Purchaser continues in good faith to have a high level of
confidence that it has obtained the financing to fund the obligations
of Acquisition Sub under Article II of this Agreement."
1.5 The Merger Agreement is amended by renaming Section 5.10 of
the Merger Agreement as Section 5.10(a) and by adding the following new
Section 5.10(b):
"(b) The Company will promptly take all steps necessary
to circulate a Proxy Statement with respect to the First Amendment to
Merger Agreement to all of its shareholders within twenty (20) days
after the First Amendment Date (which Proxy Statement shall
include the recommendation by all of the members of its Board of
Directors (except for the recommendation by Xxxxxx X. Xxxxx and Xxxxxx
Xxxxxx who have abstained from such recommendation because of a
conflict of interest, but who each have executed and delivered a
Shareholder Agreement and Reaffirmation of Shareholder Agreement with
respect to the Company Common Stock owned by them on the date hereof)
that the shareholders approve the Merger) and then to call a second
special meeting of its shareholders concerning the Merger and submit
this Agreement as amended by the First Amendment to Merger Agreement
for approval at such meeting of shareholders, which the Company shall
hold within thirty-five (35) days after the First Amendment Date or at
such later date as to which Purchaser shall consent in writing. The
Company will use its reasonable and good faith efforts to obtain the
necessary approvals of this Agreement (as amended by the First
Amendment to Merger Agreement) and the transactions contemplated hereby
by the shareholders of the Company. The Company shall have kept the
Purchaser apprised of the number of holders of shares of Company Common
Stock who have exercised appraisal or dissenter's rights and the
Company shall not enter into any negotiations, agreements or
settlements with or make any payments to holders of Dissenting Shares
without the prior written consent of Purchaser."
1.6 Section 5.12 of the Merger Agreement is amended in its entirety as
follows:
"5.12 Xxxxxxx Money Deposit. On the date hereof
Purchaser shall deposit One Hundred Fifty Thousand Dollars ($150,000)
(the "Initial Xxxxxxx Money") with the Company by payment in
the form of a check or by wire transfer of immediately available funds
to the Company, and the Company agrees to retain and use such Initial
Xxxxxxx Money pursuant to this Section 5.12. On December 17, 1997,
Purchaser deposited an additional Six Hundred Thousand Dollars
($600,000) (the "Additional Xxxxxxx Money", and
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collectively with the Initial Xxxxxxx Money, the "Xxxxxxx
Money") with Citizens Bank New Hampshire, as escrow agent, by wire
transfer of immediately available funds to such escrow agent for
deposit in a joint escrow account pursuant to that certain Signing
Escrow Agreement among Purchaser, the Company and such bank dated
December 16, 1997 (as amended from time to time, the "Signing Escrow
Agreement"). Purchaser and the Company hereby agree to deliver a fully
signed copy of the notice called for by Section 2(g) of such Signing
Escrow Agreement to the escrow agent thereunder in the form of Exhibit
A to the First Amendment to Merger Agreement acknowledging the
execution and effectiveness of the First Amendment to Merger Agreement.
If the Merger contemplated hereby is not consummated and this Agreement
is terminated as contemplated by the terms and conditions set forth in
Section 2(c) of the Signing Escrow Agreement, then in such instance the
Company shall be entitled to retain the Initial Xxxxxxx Money and the
Additional Xxxxxxx Money, together with any interest or income earned
thereon, as and for full liquidated damages with respect to the
transactions contemplated hereby and not as a penalty and the Company
shall have no further rights or claims hereunder. If the Merger
contemplated hereby is not consummated and this Agreement is terminated
as contemplated by the terms and conditions of Section 2(b) of the
Signing Escrow Agreement, then in such instance the Purchaser shall be
entitled to be refunded a portion of the Additional Xxxxxxx Money equal
to Two Hundred and Fifty Thousand Dollars ($250,000) and the Initial
Xxxxxxx Money together with the remainder of any Additional Xxxxxxx
Money (and any earnings thereon) will be retained by the Company as and
for full liquidated damages with respect to the transactions
contemplated hereby and not as a penalty, and the Company shall have no
further rights or claims hereunder. If the Merger contemplated hereby
is not consummated and this Agreement is terminated as contemplated by
Section 2(a) of the Signing Escrow Agreement, then in such instance the
Company shall promptly after the termination of this Agreement refund
the Initial Xxxxxxx Money to the Purchaser, in cash, together with
interest thereon for the number of days it had such Initial Xxxxxxx
Money calculated at a per annum rate equal to the prime rate as
announced by the Wall Street Journal at such time and Purchaser shall
be entitled to be refunded the Additional Xxxxxxx Money (and any
earnings thereon). If the Merger contemplated hereby is consummated,
then the Initial Xxxxxxx Money (plus any interest or income earned
thereon as calculated above less the Aggregate Preferred Redemption
Consideration) shall be forwarded by the Company on behalf of Purchaser
to the Exchange Agent on the Closing Date as part of the Aggregate
Merger Consideration, and the bank acting as escrow agent under the
Signing Escrow Agreement shall be instructed by the Company and
Purchaser to release all funds in the escrow account under the Signing
Escrow Agreement pursuant to the instructions of Purchaser. The parties
hereto agree to promptly take all
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actions and deliver all certificates as may be required by this
Agreement or the Signing Escrow Agreement to effectuate a release and
transfer of the funds held in escrow thereunder in accordance with the
terms and conditions hereof and thereof."
1.7 Article V of the Merger Agreement shall be amended by
adding the following Section 5.16:
"5.16 Additional Company Undertakings. The Company
shall take the following actions:
(a) the Company will endeavor, but not be required, to
settle the lawsuit styled Xxxxxxx Xxxx Xxxxxxx v. Loon Mountain
Recreation Corporation, Docket No. 96-C-202 (Superior Court of Grafton
County, New Hampshire), before the Closing on terms it, in its sole
discretion, deems in the best interests of the Company, which shall in
any event include, if settled, an appropriate confidentiality agreement
and general release of all further claims of the plaintiff;
(b) the Company shall obtain within five (5) days after
the First Amendment Date a Reaffirmation of Shareholder Agreement by
each shareholder of the Company that originally executed a Shareholder
Agreement, in substantially the form of Exhibit B to the First
Amendment to Merger Agreement;
(c) the Company will work with Purchaser to attempt in
good faith to obtain for the Company a written and unconditional option
to acquire a permanent right and easement over land owned by persons
other than Slopeside Realty Trust at a commercially reasonable cost to
provide access from Main Street in Lincoln, New Hampshire to the South
Mountain Bridge; provided, however, that the failure to obtain such an
option, despite the good faith efforts of the Purchaser and the Company
shall not constitute a breach of this clause (c); and
(d) the Company shall obtain within five (5)
days after the First Amendment Date an indemnity bond in the
face amount of at least Four Million Five Hundred Thousand Dollars
($4,500,000) from AIG, which indemnity bond will in any event will be
subject to a commercially reasonable deductible which shall be no more
than One Million Two Hundred Thousand Dollars ($1,200,000) and will
have a premium of no more than Ninety Thousand Dollars ($90,000), to
indemnify the Company for any CWA Penalty up to the face amount of such
bond."
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1.8 The second sentence of Section 6.1(d) of the Merger Agreement is
amended by adding the parenthetical "(including, without limitation, as amended
by the First Amendment to Merger Agreement)" immediately after the word
"Agreement" appearing in such sentence.
1.9 Section 6.1 of the Merger Agreement is amended by addition a new
Section 6.1(o) as follows:
"(m) Pipeline Case Injunction. No Pipeline Case
Injunction shall have been issued or entered against the Company or the
Subsidiary."
1.10 Section 10.1 of the Merger Agreement is amended by deleting the
"and" at the end of paragraph (d) of such section, changing the period at the
end of paragraph (e) to "; and" and adding the following new paragraph (f) in
proper alphabetical sequence:
"(f) any CWA Penalty imposed after the First
Amendment Date in an amount equal to the excess of the aggregate amount
of any CWA Penalty over the lesser of (I) One Hundred Thousand Dollars
($100,000) and (II) any remaining unused threshold amount under Section
10.4(d) hereof, up to a maximum payment against any CWA Penalty equal
to the lesser of (i) any remaining unused portion of the Holdback at
such time and (ii) the amount at which the deductible under the
indemnity bond purchased by the Company pursuant to Section 5.16(d) has
been satisfied and the indemnity bond issuer begins paying to the
Company amounts in respect of the CWA Penalty."
1.11 Section 10.4(b) of the Merger Agreement is amended by inserting
the phrase "and Section 10.1(f)" immediately after the words "Section 10.1(e)"
appearing in such Section.
1.12 Section 10.4(d) of the Merger Agreement is amended by inserting
the following phrase at the end of Section 10.4(d) of the Merger Agreement:
", provided that the $500,000 threshold amount to the extent
not already used or being used shall be reduced (i) by each dollar of
any CWA Penalty up to a maximum of $100,000 and (ii) by each dollar of
the settlement amount plus the costs of settlement or of any final
judgment, in either instance including but not limited to attorneys'
fees, for the lawsuit referred to in Section 5.16(a), whether such
lawsuit is settled or decided before or after Closing, to the extent
that such aggregate amount of such settlement or judgment exceeds
$25,000."
1.13 Section 11.1(e) of the Merger Agreement is amended in its
entirety as follows:
"(e) this Agreement will automatically terminate if the
Closing shall not have occurred on or before the close of business on
February 27,
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1998; provided, however, that this Agreement will not
automatically terminate on such date or thereafter pursuant to this
Section 11.1(e) if any party's willful breach of this Agreement has
prevented the consummation of the transactions contemplated hereby
unless agreed to in writing by the non-breaching party(ies); provided,
further, that the parties hereto agree to grant one fifteen (15)
business day extension of the automatic termination date set forth
above if requested by another party hereto so long as the parties are
working in good faith to finalize the remaining closing conditions and
deliveries hereunder and conclude in good faith that there is a
reasonable likelihood that all such remaining conditions and deliveries
can be satisfied during such extension period and may mutually agree to
grant such additional extensions as they deem necessary."
1.14 Paragraph 1 of Exhibit E to the Merger Agreement is amended in
its entirety as follows:
"1. Attorneys' Fees
x. Xxxxxxx & Xxxxx $ 265,000
expenses $ 15,000
b. Atty. Xxxx Xxxxxxxx $ 35,000
expenses $ 5,000"
1.15 Schedule 3.8 of the Disclosure Schedules is hereby deemed to be
amended to add the information set forth on Exhibit C to the First Amendment to
Merger Agreement.
ARTICLE II
MISCELLANEOUS
2.1 Except to the extent otherwise specified herein, capitalized terms
used in this Amendment shall have the same meanings ascribed to them in the
Merger Agreement.
2.2 Each party hereto represents and warrants that (i) it is a
corporation duly incorporated, validly existing and in good standing under the
laws of its jurisdiction of incorporation, (ii) the execution and delivery of
this Amendment and performance of its obligations hereunder have been duly
authorized by proper corporate proceedings (other than shareholder approval),
and subject to receipt of shareholder approval this Amendment constitutes a
legal, valid and binding obligation of such party enforceable in accordance with
its terms, except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws and general
principles of equity and (iii) neither the execution nor delivery of this
Amendment by such party nor any action contemplated hereunder (x) violates in
any material respect any law, rule, regulation, order, writ, judgment,
injunction, decree or award binding upon
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such party, (y) violates or conflicts with in any material respect the
provisions of any instrument or agreement to which such party is a party or is
subject or bound or (z) violates any provision of the charter or certificate of
incorporation or by-laws of such party.
2.3 Except as specifically and expressly amended in Article I above,
each of the terms and conditions of the Merger Agreement, the Exchange
Agreement, the Shareholder Agreements and the Signing Escrow Agreement shall
remain in full force and effect and is hereby ratified and confirmed, and the
parties hereto further acknowledge and agree that the execution of this
Amendment is not a waiver or acknowledgment of, or consent to any breach of any:
(i) covenant, (ii) warranty or (iii) representation contained in the Merger
Agreement or (iv) material adverse change relating to the Business that may have
occurred since the Reference Balance Sheet Date, and any breach or violation of
the Merger Agreement shall be deemed to be continuing thereunder.
2.4 This Amendment may be executed in any number of counterparts, each
of which when so executed shall be deemed an original, but all such counterparts
shall constitute one and the same instrument. The titles and section headings in
this Amendment are provided for convenience and ease of reading only, and are of
no substantive effect in interpreting this Amendment.
2.5 THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH
THE INTERNAL LAWS (AS OPPOSED TO CONFLICTS OF LAW PROVISIONS) OF THE STATE OF
DELAWARE. EACH OF THE PURCHASER, ACQUISITION SUB, THE COMPANY AND THE
REPRESENTATIVE WAIVE ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO
ENFORCE OR DEFEND ANY RIGHTS UNDER THE MERGER AGREEMENT, THIS AMENDMENT OR UNDER
ANY AMENDMENT, INSTRUMENT, DOCUMENT OR AGREEMENT DELIVERED IN CONNECTION
HEREWITH OR HEREAFTER AND AGREES THAT ANY SUCH ACTION OR PROCEEDING SHALL BE
TRIED BEFORE A COURT AND NOT BEFORE A JURY.
2.6 This Amendment and the Signing Escrow Agreement contains the entire
agreement and understanding of the parties with respect to the subject matter
hereof (and supersedes and replaces any prior letters, memoranda and/or writings
given with respect to any such proposed amendment) and no other representations,
warranties or understandings with respect to the subject matter hereof shall be
of any force or effect.
2.7 On the date hereof, the Company is delivering to Purchaser
resolutions unanimously approved by all of the members of its Board of Directors
approving the execution, delivery and performance of this Amendment, the Merger
Agreement and the transactions contemplated hereby and thereby.
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2.8 On the date hereof, the Company is delivering to Purchaser an
additional letter agreement from Citizens Bank New Hampshire agreeing to
continue its understanding that it will act as Escrow Agent and Exchange Agent
in accordance with its letter dated September 18, 1997.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Amendment as
of the day and year first above written.
BOOTH CREEK SKI GROUP, INC.
PURCHASER:
By: /s/ Xxxxxx Xxxxxxx, Jr.
------------------------------------
Xxxxxx X. Xxxxxxx, Xx., Chief
Executive Officer
ACQUISITION SUB: LMRC ACQUISITION CORP.
By: /s/ Xxxxxx Xxxxxxx, Jr.
------------------------------------
Xxxxxx X. Xxxxxxx, Xx., Chairman
COMPANY: LOON MOUNTAIN RECREATION
CORPORATION
By: /s/ Xxxxxx Xxxxx
------------------------------------
Xxxxxx X. Xxxxx, President
Acknowledged and Agreed to by the
undersigned, as Representative.
/s/ Xxxxxxx X. Xxxxxx
------------------------------------
Xxxxxxx X. Xxxxxx, as Representative
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EXHIBIT A
NOTICE TO ESCROW AGENT
CITIZENS BANK NEW HAMPSHIRE
000 Xxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx Xxxxxxxxxx, Trust and Business Development Officer
Fax: (000) 000-0000
Re: Notice - Section 2(g) of Signing Escrow Agreement
Gentlemen:
In accordance with the terms of Section 2(g) of that certain Signing
Escrow Agreement (the "Signing Escrow Agreement") dated as of December 16, 1997
by and among you and the undersigned, relating to the establishment of an escrow
account and the appointment of you as escrow agent, the undersigned do hereby
give you notice that the First Amendment to Merger Agreement among the
undersigned and LMRC Acquisition Corp. has been executed and is effective as of
the date hereof and that Section 2(g) of the Signing Escrow Agreement is no
longer in force and effect as of the date hereof.
Dated: December ____, 1997
BOOTH CREEK SKI GROUP, INC.
By:_____________________________
Name: Xxxxxx X. Xxxxxxx, Xx.
Title: Chief Executive Officer
LOON MOUNTAIN RECREATION
CORPORATION
By:_____________________________
Name: Xxxxxx X. Xxxxx
Title: President
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EXHIBIT B
FORM OF
REAFFIRMATION OF SHAREHOLDER AGREEMENT
December ___, 1997
Booth Creek Ski Group, Inc. LMRC ACQUISITION CORP.
c/o Booth Creek, Inc. c/o Booth Creek, Inc.
0000 Xxxxx Xxxxxxxx Xxxx 0000 Xxxxx Xxxxxxxx Xxxx
Xxxxx 000 Xxxxx 000
Xxxx, Xxxxxxxx 00000 Xxxx, Xxxxxxxx 00000
Attn: Xxxxxx X. Xxxxxxx, Xx. Attn: Xxxxxx X. Xxxxxxx, Xx.
Gentlemen:
Please refer to (1) the Merger Agreement dated as of September 18, 1997
(as amended, supplemented, restated or otherwise modified from time to time, the
"Merger Agreement") by and among Booth Creek Ski Group, Inc. (together with its
successors and permitted assigns, "Purchaser"), LMRC Acquisition Corp.
("Acquisition Sub") and Loon Mountain Recreation Corporation (the "Company") and
(2) the Shareholder Agreement (the "Shareholder Agreement") dated as of
September 18, 1997 by and among the undersigned party listed as Seller
("Seller"), a shareholder of the Company, with a principal residence at the
address located below, Purchaser and Acquisition Sub. Pursuant to the First
Amendment to the Merger Agreement (the "Amendment") dated as of December 22,
1997, among Purchaser, Acquisition Sub and the Company, certain provisions in
the Merger Agreement were amended. Seller has received and reviewed a copy of
the Amendment.
The undersigned Seller hereby (i) acknowledges and reaffirms that all of
such Seller's obligations and undertakings under the Shareholder Agreement shall
continue after execution of the Amendment and that all references to the "Merger
Agreement" in the Shareholder Agreement shall mean the Merger Agreement as
amended by the Amendment, and (ii) acknowledges and agrees that subsequent to,
and taking into account such Amendment, the Shareholder Agreement is and shall
remain in full force and effect in accordance with the terms thereof.
IN WITNESS WHEREOF, Seller has caused this Reaffirmation of Shareholder
Agreement to be duly executed as of the day and year first above written with
the intention that Purchaser and Acquisition Sub may rely on it in pursuing a
closing and expending additional amounts of their funds in connection with the
Merger Agreement and the Amendment.
Address: _________________________ SELLER:
_________________________
_________________________ _____________________________________
Print Name: ________________________
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EXHIBIT C
AMENDMENT TO SCHEDULE 3.8 OF THE DISCLOSURE SCHEDULE
1. The brief description of the pending action styled Xxxxxx
X. Xxxxxx v. U.S. Dept. of Agriculture, U.S. Forest Service and Loon Mountain
Recreation Corporation set forth on the letter from Company Counsel Xxxxxxxxx
Xxxxxxxx to Xxxxxx Xxxxx dated August 29, 1997 attached to Section 1 of Schedule
3.8 of the Disclosure Schedules is hereby amended by adding the following
additional paragraph thereto:
"By Motion for CWA Civil Penalties dated October 29,
1997, Plaintiff Xxxxxx X. Xxxxxx has requested the Court to
assess a civil penalty against the Company in the sum of
$5,550,125 for 347 alleged violations of the Clean Water Act
and to award him his costs and attorneys fees. The Company has
filed a response and is waiting for a hearing date to be
scheduled."
2. Schedule 3.8 of the Disclosure Schedules is hereby further
amended by inserting the following brief description of an additional action
commenced against the Company on October 20, 1997 immediately following Section
4 thereof; provided, however, that neither the Purchaser nor Acquisition Sub
shall be deemed to have accepted any developments in such action subsequent to
the First Amendment Date that will or may reasonably be expected to have a
material adverse effect on the condition (financial or otherwise), rights,
properties, assets or prospects of the Company or of the Subsidiary or the
performance by the Company of its obligations under the Agreement, including,
without limitation, as amended by the First Amendment to Merger Agreement, which
developments shall be subject to Section 5.5 of the Agreement:
"5. On October 20, 1997, two shareholders of the Company,
Xxxxx X. Xxxxx and Xxxxxx X. Xxxxxx ("Plaintiffs"), filed a
Petition and a Motion for Preliminary Injunctive Relief
("Motion") against the Company and its directors in the
Grafton County (New Hampshire) Superior Court alleging various
breaches by the directors of their fiduciary duties to the
shareholders of the Company in the negotiation, approval, and
recommendation of the Merger Agreement to such shareholders
and the solicitation of proxies for the shareholder meeting to
adopt the Merger Agreement. In their Petition and Motion,
Plaintiffs seek, inter alia, a temporary restraining order and
preliminary and permanent injunctions enjoining the Company
from: (i) further distributing proxy materials to and
soliciting proxies from shareholders; (ii) using any proxies
received; (iii) conducting a shareholders' meeting to approve
the Merger Agreement; or (iv) taking any corporate action
favoring or advantaging any particular bidder over other
interested suitors. Plaintiffs also seek orders: (a)
compelling the Company to make
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information concerning the Company available to, and to
meet with all potential bidders; (b) compelling the Company
to produce certain documents to Xx. Xxxxxx; and (c) declaring
that the New Hampshire Security Takeover Disclosure Act, RSA
421-A, applies to the proposed merger transaction.
A hearing was held on the Plaintiffs' Motion on
October 24, 1997. By Order dated October 28, 1997, the Court
concluded that the Plaintiffs had failed to demonstrate the
required likelihood of success on the merits or that there was
a danger of immediate irreparable injury. The Court further
found that Plaintiffs have an adequate remedy at law and that
the issuance of the requested injunction would potentially
cause great harm and loss to the Company and its shareholders,
whereas the harm to the Plaintiffs, should the injunction be
denied, would be minimal in comparison. Accordingly, the Court
denied the Plaintiffs' Motion."
