PURCHASE AGREEMENT
BY AND BETWEEN
LOUISIANA-PACIFIC CORPORATION,
A DELAWARE CORPORATION,
LPS CORPORATION,
AN OREGON CORPORATION,
L-P REDWOOD, LLC,
A DELAWARE LIMITED LIABILITY COMPANY,
LOUISIANA-PACIFIC SAMOA, INC.,
AN OREGON CORPORATION,
AND
SIMPSON TIMBER COMPANY,
A WASHINGTON CORPORATION,
AND
SIMPSON INVESTMENT COMPANY,
A WASHINGTON CORPORATION
DATED AS OF MAY 1, 1998
PURCHASE AGREEMENT
TABLE OF CONTENTS
SECTION: PAGE:
RECITALS....................................................1
Article I DEFINITIONS.................................................2
1.1 Certain Defined Terms...........................................2
1.2 Other Defined Terms.............................................6
Article II PURCHASE AND SALE OF ASSETS.................................6
2.1 Sale of Certain Assets by Redwood, LLC..........................6
2.2 Sale of Certain Other Assets....................................7
2.3 Lease...........................................................7
2.4 No Assignment in Certain Circumstances..........................7
2.5 Assumed Liabilities.............................................7
2.6 Retained Liabilities............................................9
2.7 Purchase Price and Payment; Deposit.............................9
2.8 Note Arrangement #1............................................10
2.9 Note Arrangement #2............................................10
2.10 Liquidated Damages.............................................11
2.11 Cash...........................................................12
2.12 Disclaimer.....................................................12
Article III CLOSING....................................................12
3.1 Closing........................................................12
3.2 Louisiana-Pacific Obligations at Closi.ng......................12
3.3 Buyer Obligations at Closing...................................14
Article IV REPRESENTATIONS AND WARRANTIES OF
LOUISIANA-PACIFIC..........................................14
4.1 Organization...................................................14
4.2 Authorization and Enforceability...............................15
4.3 Consents and Approvals.........................................15
4.4 Non-Contravention..............................................16
4.5 Financial Statements...........................................16
4.6 Absence of Certain Changes.....................................16
4.7 Title to the Personal Property.................................17
4.8 Real Property..................................................18
4.9 Intellectual Property..........................................19
4.10 Litigation.....................................................19
4.11 Employee Benefit Matters.......................................19
4.12 Taxes..........................................................20
4.13 Contracts and Commitments......................................20
4.14 Non-Environmental Permits and Other Operating Rights...........20
4.15 Labor Matters..................................................21
4.16 No Brokers.....................................................21
4.17 Acquisition for Investment.....................................21
Article V REPRESENTATIONS AND WARRANTIES OF BUYER....................21
5.1 Organization...................................................21
5.2 Authorization and Enforceability...............................21
5.3 Consents and Approvals.........................................22
5.4 Non-Contravention..............................................22
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PURCHASE AGREEMENT
TABLE OF CONTENTS
(CONTINUED)
SECTION: PAGE:
5.5 Ability........................................................22
5.6 No Brokers.....................................................22
5.7 Financial Statements...........................................22
5.8 Acquisition for Own Account....................................23
5.9 Highly Confident Letter........................................23
Article VI CERTAIN COVENANTS..........................................23
6.1 Access to Information..........................................23
6.2 Conduct of Business Pending Closing............................24
6.3 Authorizations.................................................25
6.4 Books and Records..............................................26
6.5 Louisiana-Pacific Marks........................................27
6.6 Title Insurance................................................27
6.7 Acknowledgements by Buyer......................................28
6.8 Public Announcements...........................................29
6.9 Disclosure of Confidential Information.........................29
6.10 Right to Update Disclosure Schedule............................29
6.11 Assignment of Insurance Proceeds...............................30
6.12 Joint and Several Obligations..................................30
6.13 No Shop........................................................30
Article VII CONDITIONS TO THE OBLIGATIONS OF BUYER.....................30
7.1 Accuracy of Representations and Warranties.....................30
7.2 Performance....................................................30
7.3 Termination of HSR Act Waiting Period..........................31
7.4 Absence of Governmental Orders.................................31
7.5 Timber Casualty................................................31
7.6 Legal Opinion..................................................31
7.7 Joint Conditions...............................................31
7.8 Note...........................................................31
7.9 Title..........................................................31
Article VIII CONDITIONS TO THE OBLIGATIONS OF LOUISIANA-PACIFIC.........32
8.1 Accuracy of Representations and Warranties.....................32
8.2 Performance....................................................32
8.3 Termination of HSR Act Waiting Period..........................32
8.4 Absence of Governmental Orders.................................32
8.5 Legal Opinion..................................................32
8.6 Joint Conditions...............................................32
8.7 Note...........................................................32
8.8 Indemnity Obligation...........................................32
8.9 Installment Sale Treatment.....................................32
Article IX INDEMNIFICATION............................................33
9.1 Survival of Representations and Warranties.....................33
9.2 Indemnification by Louisiana-Pacific...........................33
9.3 Indemnification by Buyer.......................................33
9.4 General Indemnification Provisions.............................34
9.5 Limitations on Indemnification.................................35
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PURCHASE AGREEMENT
TABLE OF CONTENTS
(CONTINUED)
SECTION: PAGE:
9.6 Waiver and Release.............................................36
Article X TAX MATTERS................................................36
10.1 Allocation of Purchase Price...................................36
10.2 Certain Taxes..................................................36
10.3 Buyer's Cooperation in a Section 1031 Exchange.................37
Article XI EMPLOYEES AND EMPLOYEE BENEFIT PLANS.......................37
11.1 Employment.....................................................37
11.2 Severance Reimbursement........................................38
11.3 Service Recognition............................................38
11.4 Accrued and Unused Vacation....................................39
11.5 Cross-Indemnity for Certain Workers' Compensation Claims.......39
11.6 Vesting in Louisiana-Pacific's ESOT............................39
11.7 WARN Act.......................................................40
11.8 Employee Transition Administration.............................40
Article XII TERMINATION................................................40
12.1 Termination....................................................40
12.2 Written Notice.................................................41
12.3 Effect of Termination..........................................41
12.4 Cure Right.....................................................41
Article XIII GENERAL PROVISIONS.........................................41
13.1 Expenses, Taxes, Etc...........................................41
13.2 Notices........................................................42
13.3 Disclosure Schedule............................................43
13.4 Interpretation.................................................43
13.5 Severability...................................................44
13.6 Assignment.....................................................44
13.7 No Third-Party Beneficiaries...................................44
13.8 Amendment......................................................44
13.9 No Other Remedies..............................................44
13.10 Further Assurances.............................................45
13.11 Mutual Drafting................................................45
13.12 Governing Law..................................................45
13.13 Jurisdiction; Waiver of Jury Trial.............................45
13.14 Interest.......................................................46
13.15 Counterparts...................................................46
13.16 Entire Agreement...............................................46
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PURCHASE AGREEMENT
INDEX TO EXHIBITS, SCHEDULES AND
DISCLOSURE SCHEDULE *
EXHIBITS: DESCRIPTION:
EXHIBIT 1.1-1....................................Form of Environmental Agreement
EXHIBIT 1.1-2......................................................Form of Lease
EXHIBIT 1.1-3..................................Form of Shared Services Agreement
EXHIBIT 1.1-4..........................................Form of Supply Agreements
EXHIBIT 1.1-5...................................Form of Tax Make Whole Agreement
EXHIBIT 2.8...........................................................Term Sheet
EXHIBIT 2.9.................................Form of Note for Note Arrangement #2
EXHIBIT 3.2(c).......................Form of Assignment and Assumption Agreement
EXHIBIT 3.2(d)........................Form of Assignment and Assumption of Lease
EXHIBIT 3.3(g)............................Form of Business Employee Offer Letter
EXHIBIT 6.1(b)..........................................Form of Access Agreement
EXHIBIT 7.6..............................Form of Louisiana-Pacific Legal Opinion
EXHIBIT 8.5..........................................Form of Buyer Legal Opinion
SCHEDULES:
1.1....................................................................Contracts
2.5...............................................Additional Assumed Liabilities
2.7(d)..............................................Adjustment to Purchase Price
10.1................................................Allocation of Purchase Price
13.4(b)-1..........................................Louisiana-Pacific's Knowledge
13.4(b)-2......................................................Buyer's Knowledge
DISCLOSURE SCHEDULE:
SECTION 4.3...............................................Consents and Approvals
SECTION 4.5.................................................Financial Statements
SECTION 4.6...........................................Absence of Certain Changes
SECTION 4.7(a)(i)........................................Samoa Personal Property
SECTION 4.7(a)(ii)..................................Non-Timber Personal Property
SECTION 4.7(a)(iii).....................................Timber Personal Property
SECTION 4.8(a)...............................................Samoa Real Property
SECTION 4.8(b)..........................................Non-Timber Real Property
SECTION 4.8(c)..............................................Timber Real Property
SECTION 4.8(g).....................................Leases of Owned Real Property
SECTION 4.8(h)................................................Map of Timberlands
SECTION 4.10..........................................................Litigation
SECTION 4.11..............................................Employee Benefit Plans
SECTION 4.12...............................................................Taxes
SECTION 4.13...........................................Contracts and Commitments
SECTION 4.14................Non-Environmental Permits and Other Operating Rights
SECTION 4.15.......................................................Labor Matters
* The Exhibits and Schedules to the Purchase Agreement have been
omitted pursuant to Item 601(2) of Regulation S-K. The registrant will furnish
supplementally a copy of any omitted exhibit or schedule to the Commission upon
request.
PURCHASE AGREEMENT
TERMS NOT DEFINED IN SECTION 1.1
DEFINED TERM: SECTION:
"Adjusted Working Capital"........................Section (i) of Schedule 2.7(d)
"Adjustment Schedule"............................Section (ii) of Schedule 2.7(d)
"Affiliate Payables".............................Section (vi) of Schedule 2.7(d)
"Affiliate Receivables"..........................Section (vi) of Schedule 2.7(d)
"Antitrust Authorities" ..................................................6.3(d)
"Apportioned Obligations"................................................10.2(a)
"Assumed Liabilities"........................................................2.5
"Assignment and Assumption Agreement".....................................3.2(d)
"Assignment and Assumption of Lease"......................................3.2(c)
"Approval"...................................................................2.4
"Balance Sheet Assets".......................................................2.2
"Benefit Continuation"......................................................11.2
"Business Employee"......................................................4.11(a)
"Buyer".................................................................Recitals
"Buyer Financial Statements".................................................5.7
"Buyer Indemnified Parties"..................................................9.2
"Buyer Loss".................................................................9.2
"Cash Amount".............................................................2.7(b)
"Closing"....................................................................3.1
"Closing Cash Payment"....................................................2.7(b)
"Closing Date"...............................................................3.1
"Commitments"...............................................................4.13
"Credit Enhancement Arrangement"..........................................2.9(b)
"Deadline Date"..........................................................12.1(b)
"Deductible"..............................................................9.5(a)
"Deposit".................................................................2.7(a)
"Designated Employees"......................................................11.1
"Employee Benefit Plan"...................................................4.1(a)
"Financial Statements".......................................................4.5
"Formula Percentage"........................................................11.5
"Hired Employees"...........................................................11.1
"Indemnitee"..............................................................9.4(a)
"Indemnitor"..............................................................9.4(a)
"Leased Real Property"....................................................4.8(f)
"Losses"..................................................................9.4(a)
"Louisiana-Pacific".....................................................Recitals
"Louisiana-Pacific Indemnified Parties"......................................9.3
"Louisiana-Pacific Loss".....................................................9.3
"Louisiana-Pacific Marks"....................................................6.5
"Louisiana-Pacific Service..................................................11.3
"LPS Corporation".......................................................Recitals
PURCHASE AGREEMENT
OTHER DEFINED TERMS
(CONTINUED)
DEFINED TERM: SECTION:
"Non-Timber Leased Real Property".........................................4.8(b)
"Non-Timber Owned Real Property"..........................................4.8(b)
"Non-Timber Personal Property".......................................4.7(a)(iii)
"Non-Timber Real Property"................................................4.8(b)
"Note Assets".............................................................2.7(c)
"Note Arrangement #1"........................................................2.8
"Note Arrangement #2"........................................................2.9
"Owned Real Property".....................................................4.8(e)
"Permits"...................................................................4.14
"Purchase Price"..........................................................2.7(c)
"Purchased Assets............................................................2.1
"Redwood Leased Real Property"............................................4.8(d)
"Redwood Owned Real Property".............................................4.8(d)
"Redwood Personal Property"..........................................4.7(a)(iii)
"Redwood, LLC"..........................................................Recitals
"Retained Liabilities".......................................................2.6
"Samoa Leased Real Property"..............................................4.8(a)
"Samoa Owned Real Property"...............................................4.8(a)
"Samoa Personal Property"..............................................4.7(a)(i)
"Samoa Real Property".....................................................4.8(a)
"Samoa, Inc."...........................................................Recitals
"Sansome"...............................................................Recitals
"Sansome Purchase Agreement"............................................Recitals
"Settlement Date"...............................Section (iii) of Schedule 2.7(d)
"Simpson Investment"....................................................Recitals
"Subsidiaries"..........................................................Recitals
"Term Sheet"..............................................................2.8(a)
"Third Party Claims"......................................................9.4(b)
"Timber Leased Real Property".............................................4.8(c)
"Timber Owned Real Property"..............................................4.8(c)
"Timber Personal Property"...........................................4.7(a)(iii)
"Timber Real Property"....................................................4.8(c)
"Title Commitments"..........................................................6.6
"Title Company"..............................................................6.6
"WARN Act"..................................................................11.7
"Workers' Compensation Claims"..............................................11.5
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PURCHASE AGREEMENT
PURCHASE AGREEMENT, dated as of May 1, 1998, by and among
Louisiana-Pacific Corporation, a Delaware corporation ("Louisiana-Pacific"), LPS
Corporation, an Oregon corporation and wholly-owned subsidiary of
Louisiana-Pacific ("LPS Corporation"), L-P Redwood, LLC, a Delaware limited
liability company and wholly-owned subsidiary of LPS Corporation ("Redwood,
LLC"), Louisiana-Pacific Samoa, Inc., an Oregon corporation ("Samoa, Inc." and
together with Redwood, LLC, the "Subsidiaries"), and Simpson Timber Company, a
Washington corporation ("Buyer") and Simpson Investment Company, a Washington
corporation ("Simpson Investment").
RECITALS
A. Louisiana-Pacific owns and operates (i) certain facilities located
in Samoa, California, through Samoa, Inc. and (ii) a timber harvesting and
milling business located in Humboldt and Trinity counties in California, in part
through Redwood, LLC.
B. Louisiana-Pacific and LPS Corporation desire to cause Redwood, LLC
to sell and assign to Buyer, and Buyer desires to purchase and assume from
Redwood, LLC, certain of the assets and liabilities of Redwood, LLC, as provided
in this Agreement.
C. Louisiana-Pacific and LPS Corporation desire to cause Samoa, Inc. to
lease to Buyer, and Buyer desires to lease from Samoa, Inc., certain real
property and facilities located in Samoa, California owned by Samoa, Inc., all
as more specifically described in the Lease.
D. Louisiana-Pacific desires to sell to Buyer, and Buyer desires to
purchase from Louisiana-Pacific certain assets from Louisiana-Pacific, as
provided in this Agreement.
E. Louisiana-Pacific, LPS Corporation and Samoa, Inc. desire to assign
to Buyer, and Buyer desires to assume from Louisiana-Pacific, LPS Corporation
and Samoa, Inc. certain liabilities of Louisiana-Pacific, LPS Corporation and
Samoa, Inc., as provided in this Agreement.
F. Concurrently with the Closing hereunder, Louisiana-Pacific, LPS
Corporation and Redwood, LLC desire to sell certain assets and assign certain
liabilities to Sansome Forest Partners, L.P., a Delaware limited partnership
("Sansome"), pursuant to a Purchase Agreement, dated the date hereof, among
Louisiana-Pacific, LPS Corporation, Redwood, LLC and Sansome (the "Sansome
Purchase Agreement").
In consideration of the premises and the respective representations,
warranties and agreements herein contained, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS
1.1 CERTAIN DEFINED TERMS. As used in this Agreement, the following
terms shall have the following meanings (such definitions to be equally
applicable to both the singular and plural forms of the terms defined):
"Action" means any claim, action, suit, audit, assessment or
arbitration, or any proceeding, in each case by or before any Governmental
Authority.
"Affiliate" has the meaning set forth in Rule 12b-2 of the regulations
under the Securities Exchange Act of 1934, as amended.
"Affiliated Group" means any affiliated group within the meaning of
Code Section 1504(a) or any similar group defined under a similar provision of
state, local or foreign law.
"Agreement" means this PURCHASE AGREEMENT, including all schedules and
exhibits hereto and the Disclosure Schedule, as such agreement may be further
amended from time to time as herein provided.
"Agreement Date" means the date hereof.
"Allowed Pre-Signing Changes" means changes relating to the Business or
to the Humboldt-Trinity-Samoa Assets individually or collectively that occur
between the date of the Balance Sheet and the Agreement Date and which do not
result in the inaccuracy in any material respect of the representations and
warranties in Section 4.6.
"Allowed Pre-Closing Changes" means any changes relating to the
Business or to the Humboldt-Trinity-Samoa Assets individually or collectively
that occur between the Agreement Date and the Closing Date that do not result in
a breach or violation in any material respect of Section 6.2.
"Ancillary Agreements" means the Environmental Agreement, the Lease,
the Note, the Shared Services Agreement, the Supply Agreements, and the Tax Make
Whole Agreement.
"Balance Sheet" means the unaudited balance sheet for the Business as
at March 7, 1998 set forth in Disclosure Schedule Section 4.5.
"Books and Records" means all of the following to the extent pertaining
to the conduct of the Business: books, records, manuals and other materials,
accounting books and records, general ledger, files, computer tapes, advertising
matter, catalogues, price lists, correspondence, mailing lists, lists of
customers and suppliers, distribution lists, photographs, production data, sales
and promotional materials and records, purchasing materials and records,
personnel records, credit records, manufacturing and quality control records and
procedures, blueprints, research and development files, data and laboratory
books, patent disclosures, media materials and plates, sales order files and
litigation files related to litigation that Buyer is assuming hereunder;
provided however, that any of the foregoing that relate to other businesses
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of Louisiana-Pacific or its Affiliates, shall not be deemed to be covered by the
definition of "Books and Records" but copies of the portions thereof that relate
to the Business shall be made available to Buyer.
"Business" means, collectively, the businesses conducted by
Louisiana-Pacific through the Subsidiaries prior to the Closing Date to the
extent related to the Humboldt-Trinity-Samoa Assets subject to Allowed
Pre-Closing Changes.
"Bylaws" means a company's bylaws, code of regulations or equivalent
document.
"Charter" means a company's articles of association, articles of
incorporation, certificate of incorporation or equivalent organizational
documents.
"Code" means the Internal Revenue Code of 1986 and any successor
statute thereto, as amended.
"Confidentiality Agreement" means the letter agreement, dated November
26, 1997, between Louisiana-Pacific and Buyer.
"Contracts" means all contracts, agreements and commitments described
on Schedule 1.1.
"Disclosure Schedule" means the Disclosure Schedule with respect to
this Agreement and the Environmental Agreement, dated as of the date hereof,
delivered to Buyer by Louisiana-Pacific and forming a part of this Agreement and
the Environmental Agreement.
"Encumbrance" means any interest (including any security interest),
pledge, mortgage, lien, charge, adverse claim or other right of third Persons.
"Environmental Agreement" means the Environmental Agreement, in the
form attached as Exhibit 1.1-1.
"Environmental Laws" means all federal, state and local laws,
regulations, ordinances, codes, policies, Governmental Orders and consent
decrees, and any judicial interpretations thereof, relating to pollution or
protection of the environment and natural resources, including the Endangered
Species Act (as defined in the Environmental Agreement) and those relating to
emissions, discharges, Releases or threatened Releases of Hazardous Material
into the environment (including ambient air, surface water, groundwater or
land), or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transportation or handling of Hazardous Material.
As used herein, Environmental Laws means only those Environmental Laws as
amended and in effect on the Agreement Date.
"Environmental Permits" means all permits, approvals, agreements with
Governmental Authorities, identification numbers, licenses and other
authorizations required under or issued pursuant to any applicable Environmental
Law.
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"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended.
"Governmental Authority" means any federal, state, municipal or local
government, governmental authority, regulatory or administrative agency,
governmental commission, department, board, bureau, agency or instrumentality,
court, tribunal, arbitrator or arbitral body.
"Governmental Order" means any order, writ, rule, judgment, injunction,
decree, stipulation, determination or award entered by or with any Governmental
Authority.
"Hazardous Material" means any substance, pollutant, material or waste
which is regulated under any Environmental Law, including any such materials
regulated as hazardous or toxic substances or material, and asbestos, petroleum
and any fraction or product of crude oil or petroleum.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended, Section 7A of the Clayton Act, 15 U.S.C. Section 18A, and the
regulations promulgated thereunder.
"Humboldt-Trinity-Samoa Assets" means the Real Property, the Samoa
Personal Property, the Redwood Personal Property, the Contracts and the Permits,
but excluding the assets and properties designated as "excluded" on Disclosure
Schedule Section 4.8(h).
"IRS" means the U.S. Internal Revenue Service.
"Lease" means the Lease, in the form attached as Exhibit 1.1-2.
"Liabilities" means any and all debts, liabilities and obligations of
any nature whatsoever, whether accrued or fixed, absolute or contingent, mature
or unmatured or determined or indeterminable.
"Material Adverse Effect" means any event(s) with respect to, change(s)
in, effect(s) on, or state of facts affecting, the Purchased Assets arising or
existing on or prior to the Closing Date that, individually or in the aggregate,
would have an adverse effect (based on the Business as it was conducted by
Louisiana-Pacific and its Affiliates prior to the Closing Date) (i) on the net
income of the Business equal to $500,000 per year, which effect is reasonably
likely to continue on an annual basis for at least five years after the Closing
Date, or (ii) on the net assets of the Business equal to $10,000,000 or more.
For purposes of the conditions to Closing set forth in Sections 7.1, 7.2, 8.1
and 8.2, and the Officer's Certificates delivered pursuant to subsections 3.2(f)
and 3.3(f) 0, the determination of whether a breach of a representation and
warranty or covenant of this Agreement shall be deemed to give rise to a
Material Adverse Effect, shall be determined on a cumulative basis by adding the
effect of the breach of any such representation and warranty or covenant to the
effect of all other breaches of representations and warranties and covenants of
this Agreement for each of the applicable period or periods to which each of
such representations, warranties or covenants relate, in all cases before
applying the limitations set forth in the preceding sentence, and then
determining whether, for any of the applicable periods, such aggregate sum
exceeds the threshold set forth in the preceding sentence.
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For purposes of this definition of Material Adverse Effect, the effect of any
matter as to any past period shall be determined based on its actual effect, and
its effect as to any future period shall be determined based on the effect that
such matter is reasonably likely to have.
"Note" means the promissory note or notes to be delivered pursuant to,
at Louisiana-Pacific's election, Section 2.8 or 2.9.
"Permitted Liens" means any (a) mechanics', carriers', workers' and
other similar liens arising in the ordinary course of business and which in the
aggregate are not substantial in amount, and do not interfere with the present
use of the assets of the Business; (b) liens for current Taxes and assessments,
both general and special, and other governmental charges not yet due and payable
as of the Closing; (c) usual and customary non-monetary real property
Encumbrances; (d) liens securing those Liabilities relating to the Business that
are to become the responsibility of Buyer or any subsidiary or Affiliate thereof
as of the Closing in accordance with the terms of this Agreement; (e) all land
use restrictions (including environmental, endangered species and wetlands),
building and zoning codes and ordinances, and other laws, ordinances,
regulations, rules, orders, licenses or determinations of any Governmental
Authority, now or hereafter enacted, made or issued by any such Governmental
Authority affecting the Real Property; (f) all easements (including conservation
easements and public trust easements), rights-of-way, road use agreements,
covenants, conditions, restrictions, reservations, licenses, agreements and
other matters of record; (g) all encroachments, overlaps, overhangs, unrecorded
easements, variations in area or measurement, rights of parties in possession,
lack of access or any other matters not of record which would be disclosed by an
accurate survey or physical inspection of the Real Property; (h) all electric
power, telephone, gas, sanitary sewer, storm sewer, water and other utility
lines, pipelines, service lines and facilities of any nature on, over or under
the Real Property, and all licenses, easements, rights-of-way and other
agreements relating thereto; (i) all existing public and private roads and
streets (whether dedicated or undedicated) including all rights of the public to
use such roads and streets, and all railroad lines and rights-of-way affecting
the Real Property; (j) prior reservations or conveyances of mineral rights or
mineral leases of every kind and character; (k) water rights (whether asserted
by any Governmental Authority or private party); (l) other imperfections of
title, easements and encumbrances, if any; and (m) with respect to any asset of
the Business that consists of a leasehold or other possessory interest in real
property, all Encumbrances, covenants, imperfections in title, easements,
restrictions and other title matters (whether or not the same are recorded) to
which the underlying fee estate in such real property is subject which were not
created or incurred by Louisiana-Pacific, LPS Corporation or the Subsidiaries;
all of which clauses (a) through (m) do not materially interfere with the
operation of that portion of the Business currently conducted by
Louisiana-Pacific or its Affiliates on such property.
"Person" shall include any individual, trustee, firm, corporation,
partnership, limited liability company, Governmental Authority or other entity,
whether acting in an individual, fiduciary or any other capacity.
"Privileged Documents" means all documents (and compilations of
documents completed by, for or on behalf of counsel) that are subject to any
legal privilege, including the attorney-client privilege or the attorney work
product protection, which relate to any Action
5
involving Louisiana-Pacific or its Affiliates or other Liability for which
Louisiana-Pacific or its Affiliates may be responsible.
"Real Property" means collectively, the real property, fee or
leasehold, together with all improvements, fixtures and easements appurtenant
thereto, set forth on Disclosure Schedule Sections 4.8(a)-1, 4.8(a)-2, 4.8(b)-1,
4.8(b)-2, 4.8(c)-1 and 4.8(c)-2.
"Release" means any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping or disposing into
the environment (including the abandonment or discarding of barrels, containers
and other closed receptacles containing any Hazardous Material).
"Samoa Leased Assets" means the assets leased to Buyer pursuant to the
Lease.
"Shared Services Agreement" means the Shared Services, Facilities,
Access and Use Agreement, in the form attached as Exhibit 1.1-3.
"Supply Agreements" means the Supply Agreements, in the form attached
hereto as Exhibit 1.1-4.
"Tax" means any federal, state, local, or foreign income, gross
receipts, license, payroll, parking, employment, excise, severance, stamp,
occupation, premium, windfall profits, environmental (including taxes under Code
Sec. 59A), customs duties, capital stock, franchise, profits, withholding,
social security (or similar), unemployment, disability, real property, personal
property, sales, use, transfer, registration, value added, alternative or add-on
minimum, estimated tax, or other tax of any kind whatsoever, including any
interest, penalty, or addition thereto, whether disputed or not, including such
item for which Liability arises as a transferee or successor-in-interest,
including Liability therefor as a transferee or successor-in-interest.
"Tax Make Whole Agreement" means the Tax Make Whole Agreement, in the
form attached as Exhibit 1.1-5, to be executed and delivered by Buyer at the
Closing solely in connection with Note Arrangement #1.
"Tax Return" means any return, declaration, report, claim for refund,
information return or statement relating to Taxes, including any schedules or
attachments thereto, and including any amendment thereof.
1.2 OTHER DEFINED TERMS. In addition to the terms defined in Section
1.1, certain other terms are defined elsewhere in this Agreement and, whenever
such terms are used in this Agreement, they shall have their respective defined
meanings. A table of such terms appears after the table of contents.
ARTICLE II
PURCHASE AND SALE OF ASSETS
2.1 SALE OF CERTAIN ASSETS BY REDWOOD, LLC. Subject to the terms and
conditions herein set forth and in consideration of the payment of the Purchase
Price, at the Closing Louisiana-Pacific and LPS Corporation shall cause Redwood,
LLC to sell, assign,
6
transfer and deliver to Buyer, and Simpson Investment shall cause Buyer to, and
Buyer shall, purchase from Redwood, LLC, all of Redwood, LLC's right, title and
interest, existing as of the Closing, in and to the Humboldt-Trinity-Samoa
Assets subject only to Allowed Pre-Signing Changes and Allowed Pre-Closing
Changes, but excluding the Mendocino-Sonoma-Riverside Assets (as defined in the
Sansome Purchase Agreement) (together with the Balance Sheet Assets defined
below, the "Purchased Assets").
2.2 SALE OF CERTAIN OTHER ASSETS. Suybject to the terms and conditions
herein set forth and in consideration of the payment of the Purchase Price, at
the Closing, Louisiana-Pacific and the Subsidiaries shall sell, assign, transfer
and deliver to Buyer, and Simpson Investment shall cause Buyer to, and Buyer
shall, accept and acquire from Louisiana-Pacific and the Subsidiaries, all of
the current assets of the Business as reflected on the Balance Sheet (other than
cash or cash equivalents), subject only to Allowed Pre-Signing Changes and
Allowed Pre-Closing Changes (the "Balance Sheet Assets").
2.3 LEASE. Concurrently with the Closing, Louisiana-Pacific shall cause
Samoa, Inc. to, and Samoa, Inc. shall, enter, and Simpson Investment shall cause
Buyer to, and Buyer shall, enter into the Lease.
2.4 NO ASSIGNMENT IN CERTAIN CIRCUMSTANCES. Notwithstanding any
provision in this Agreement to the contrary, this Agreement shall not constitute
an agreement to sell, convey, assign, transfer or deliver any interest in any
instrument, commitment, contract, lease, license, permit or other agreement or
arrangement or any claim, right or benefit arising thereunder or resulting
therefrom to the extent that such a transfer or an attempt to make such a
transfer without the authorization, approval, consent or waiver (collectively,
"Approval") of a third Person would constitute a breach or violation thereof, or
affect adversely the rights of Buyer, Louisiana-Pacific or the Subsidiaries
thereunder, or constitute a Material Adverse Effect; and any such transfer to
Buyer that requires the Approval of a third Person shall be made subject to such
Approval being obtained. Louisiana-Pacific shall use its commercially reasonable
efforts to obtain any such Approval prior to the Closing Date, and Buyer shall
cooperate therewith. In the event that any such Approval is not obtained on or
prior to the Closing Date, Louisiana-Pacific shall, for a period of six months
thereafter, continue to use its commercially reasonable efforts to obtain any
such Approval and cooperate with Buyer in any reasonable and lawful arrangement
to provide that Buyer or Buyer's designee shall receive all of
Louisiana-Pacific's right, title and interest in any Contract with respect to
which such Approval is required, including performance by Louisiana-Pacific, as
agent; provided, however, that Louisiana-Pacific shall not be obligated to
commence or prosecute any Action or pay any amount to any third Person other
than any consent or assignment fees expressly set forth in the Contracts, which
shall be paid by Louisiana-Pacific.
2.5 ASSUMED LIABILITIES. Except as provided in Section 2.6, at the
Closing, Simpson Investment shall cause Buyer to, and Buyer shall, assume and
agree to thereafter perform when due and discharge, without any recourse to
Louisiana-Pacific, LPS Corporation, Redwood, LLC, Samoa, Inc. or any of their
Affiliates, the following liabilities and obligations of Louisiana-Pacific, LPS
Corporation, Redwood, LLC and Samoa, Inc., as applicable (the "Assumed
Liabilities"):
7
(a) Accounts Payable. Any Liability for those accounts payable of
-----------------
Louisiana-Pacific or the Subsidiaries arising out of the operation of the
Business to the extent (i) reflected on the Balance Sheet or (ii) arising from
Allowed Pre-Signing Changes or Allowed Pre-Closing Changes, all of which
Liabilities will be reflected in the adjustment to the Purchase Price as set
forth in subsection 2.7(d).
(b) Contract Advances. Any Liability or credit owing from
-----------------
Louisiana-Pacific or the Subsidiaries for deposits, prepayments or advances paid
to Louisiana-Pacific or the Subsidiaries with respect to the Contracts to the
extent (i) reflected on the Balance Sheet or (ii) arising from Allowed
Pre-Signing Changes or Allowed Pre-Closing Changes, all of which Liabilities
will be reflected in the adjustment to the Purchase Price as set forth in
subsection 2.7(d).
(c) Other Balance Sheet Liabilities. In addition to the foregoing,
---------------------------------
any other Liabilities ofLouisiana-Pacific or the Subsidiaries arising out of the
operation of the Business to the extent (i) reflected on the Balance Sheet or
(ii) arising from Allowed Pre-Signing Changes or Allowed Pre-Closing Changes,
all of which Liabilities will be reflected in the adjustment to the Purchase
Price as set forth in subsection 2.7(d); provided, however, that Buyer shall not
assume any long-term liabilities set forth on the Balance Sheet or other
long-term liabilities that would otherwise be included in a balance sheet for
matters occurring after the date of the Balance Sheet and before the Closing
Date.
(d) Contract Obligations. Any Liability for obligations that first
---------------------
become due to be performed on or after the Closing Date under the Contracts and
any additional contracts, agreements or commitments entered into by
Louisiana-Pacific or the Subsidiaries to the extent entry into such additional
contracts, agreements or commitments is permitted as an Allowed Pre-Closing
Change but only to the extent that any required Approval for assignment and
assumption of such Contracts or additional contracts has been obtained, or to
the extent Buyer is otherwise receiving the economic benefits under such
Contracts or additional contracts.
(e) Product Liability. Any Liability for bodily injury or property
-----------------
damage arising from occurrences on or after theClosing as a result of any
alleged or actual defects in products of the Business designed, manufactured or
assembled by or on behalf of Louisiana-Pacific or the Subsidiaries other than
such Liability relating to a product shipped or sold or service rendered by
Louisiana-Pacific, the Subsidiaries or their Affiliates prior to the Closing.
(f) Litigation Matters. Any Liability arising with respect to matters
-------------------
disclosed to Buyer in Disclosure Schedule Section 4.10 for the Purchase
Agreement delivered to Buyer on the Agreement Date, as well as those Liabilities
arising with respect to matters arising after the Agreement Date and disclosed
to Buyer on a supplement to Disclosure Schedule Section 4.10 delivered to Buyer
on or prior to the Closing Date pursuant to Section 6.10, to the extent the
amount or value in controversy with respect to such new matters shall not be
reasonably likely to exceed $75,000 individually or $500,000 in the aggregate.
(g) Schedule of Additional Assumed Liabilities. Any additional
-------------------------------------------
Liabilities of Louisiana-Pacific or the Subsidiaries to the extent set forth on
Schedule 2.5, including the reforestation and other obligations described
therein.
8
2.6 RETAINED LIABILITIES. All liabilities and obligations of
Louisiana-Pacific, LPS Corporation and the Subsidiaries other than those
specifically set forth in Section 2.5 (the "Retained Liabilities") shall remain
the responsibility of Louisiana-Pacific, except as provided in the Environmental
Agreement, and shall not be assumed by Buyer pursuant to this Agreement. The
Retained Liabilities shall not include the specific liabilities set forth in
Section 2.5 but shall otherwise include, except as otherwise provided in this
Agreement, any Liability (including liabilities for taxes, penalties, excise
taxes, claims incurred and benefits accrued, to any Person, including the IRS,
the Department of Labor, the Pension Benefit Guaranty Corporation, any employee,
plan participant or beneficiary) with respect to any "employee benefit plan"
maintained, administered or contributed to by Louisiana-Pacific or any trade or
business (whether or not incorporated) that is a member of a "controlled group"
of which Louisiana-Pacific is a member or under "common control" with
Louisiana-Pacific (within the meaning of Section 414(b) and (c) of the Code),
but excluding any Liability for which Buyer is, or would become, liable in the
absence of the transaction contemplated hereby. As used in this subsection, the
term "employee benefit plan" means "employee benefit plan" as defined in Section
3(3) of ERISA, including any multiemployer plan as defined in Section 3(37) of
ERISA and any bonus, deferred compensation, performance compensation, stock
purchase, stock option, stock appreciation, salary continuation, sick leave,
holiday pay, fringe benefit, personnel policy, reimbursement program, incentive,
insurance, welfare or similar plan, program, policy or arrangement, whether or
not disclosed under Disclosure Schedule Section 4.11.
2.7 PURCHASE PRICE AND PAYMENT; DEPOSIT
(a) On or before the Agreement Date, Simpson Investment shall cause
Buyer to, and Buyer shall, have paid to Redwood, LLC in cash, 3% of the Purchase
Price ($11,280,000) (the "Deposit"). If Buyer terminates this Agreement pursuant
to subsections 12.1(a), 12.1(b) or 12.1(c), if Louisiana-Pacific terminates this
Agreement pursuant to subsection 12.1(a) or 12.1(b) Louisiana-Pacific shall
cause Redwood, LLC to, and Redwood, LLC shall, promptly return the Deposit to
Buyer. At Closing, the Deposit shall be applied as a credit against the Purchase
Price as set forth in subsection 27.(b).
(b) Subject to the terms and conditions herein set forth, and in
consideration of the entry into the Lease and the sale, assignment, transfer and
delivery to Buyer of the Purchased Assets not otherwise referred to in
subsection 2.7(c), Simpson Investment shall cause Buyer to, and Buyer shall, pay
to Redwood, LLC in cash, at the Closing, SIXTEEN MILLION THREE HUNDRED TWENTY
FIVE THOUSAND DOLLARS ($16,325,000) (the "Cash Amount"), less the amount of the
Deposit, for a total cash payment at Closing of FIVE MILLION FORTY FIVE THOUSAND
DOLLARS AND NO CENTS ($5,045,000) (the "Closing Cash Payment").
(c) Subject to the terms and conditions herein set forth, and in
consideration of the sale, assignment, transfer and delivery to Buyer of the
Timber Personal Property and the Timber Real Property, plus any similar assets
acquired by Redwood, LLC after the Agreement Date, less any similar assets
disposed of by Redwood, LLC after such date, in each case to the extent such
subsequent acquisition or disposition is permitted as an Allowed Pre-Closing
Change (collectively, the "Note Assets"), Simpson Investment shall cause Buyer
to, and Buyer shall, deliver to Redwood, LLC at Closing, the Note pursuant to
Section 2.8 or 2.9 with a principal
9
amount of THREE HUNDRED FIFTY NINE MILLION SIX HUNDRED SEVENTY FIVE DOLLARS AND
NO CENTS ($359,675,000). The Cash Amount, together with the principal amount of
the Note (as such aggregate amount may be adjusted in accordance with subsection
2.7(d)), are referred to herein as the "Purchase Price."
(d) To take into account various changes in working capital from the
Agreement Date to the Closing Date, the Purchase Price shall be subject to
adjustment after the Closing as set forth in Schedule 2.7(d).
(e) Under no circumstances shall Buyer withhold payment under the Note
or offset or adjust the principal, premium, if any, or interest payments under
the Note whether by reason of Buyer's assertion of claims for amounts owing to
Buyer from Redwood, LLC, Louisiana-Pacific, LPS Corporation or Samoa, Inc. as a
result of any breach of representations and warranties or covenants hereunder or
their indemnification obligations hereunder, or otherwise.
(f) Until Buyer has paid or incurred the obligation for payment of a
placement fee for a Note Arrangement and thereafter subject to reimbursement of
Buyer for such amount paid or incurred as a placement fee for a Note
Arrangement, Redwood, LLC may elect for the Purchase Price to be paid in all
cash, in which case, notwithstanding Sections 3.1 or 12.1(b), Buyer may delay
the Closing for up to 45 days after its receipt of written notice from Redwood,
LLC of such cash election.
2.8 NOTE ARRANGEMENT #1.
(a) Exhibit 2.8 sets forth a term sheet (the "Term Sheet") containing
the general terms and conditions for the issuance of promissory notes for the
Note Assets by Buyer and related transactions ("Note Arrangement #1"). Buyer and
Simpson Investment shall take all steps reasonably necessary in order to
effectuate Note Arrangement #1 if elected by Louisiana-Pacific.
(b) Without limiting the generality of the foregoing, the parties agree
to work together in good faith to prepare final form promissory notes,
guarantees, note agreements and other documents in form reasonably satisfactory
to Louisiana-Pacific and Buyer, within 45 days hereof. Louisiana-Pacific and
Buyer acknowledge that this may require changes to those matters set forth in
the Term Sheet.
(c) All of Buyer's own costs, legal fees and expenses, together with
the investment banking placement fees of LP Noteholders (as defined in the Term
Sheet) associated with the Note Arrangement #1 shall be the sole responsibility
of Buyer.
2.9 NOTE ARRANGEMENT #2. In the event that BancAmerica Robertson
Stephens determines that Note Arrangement #1 can not be marketed to the
satisfaction of Louisiana-Pacific within 45 days hereof, but in no event after
Buyer has incurred a placement fee for Note Arrangement #1, Louisiana-Pacific
may require the following of Buyer upon at least 45 days advance notice ("Note
Arrangement #2"):
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(a) Buyer shall execute a promissory note or notes at the Closing for
the Note Assets, in the form of Exhibit 2.9, with a maturity date of 15 years
(and shall execute a tax make whole agreement mutually acceptable to both
parties).
(b) Buyer shall pledge cash collateral at the Closing equal to the full
amount of the principal of the promissory note(s) for the entire term of the
promissory note(s), in exchange for a stand-by letter of credit or other
arrangement that is obtainable and acceptable to Louisiana-Pacific under which
the obligations of Buyer are guaranteed (the "Credit Enhancement Arrangement").
Redwood, LLC shall have a first priority perfected security interest in the
Credit Enhancement Arrangement, but shall not have a lien upon or other security
interest in such cash collateral.
(c) Buyer shall be responsible for the amount of fees and costs it
would have been responsible for under Note Arrangement #1, less any amounts
already paid or incurred under Note Arrangement #1, and Louisiana-Pacific shall
be responsible for any other costs associated therewith.
(d) The interest rate on the promissory note(s) shall be equal to the
interest received by Buyer on the cash associated with the Credit Enhancement
Arrangement, net of any periodic credit enhancement amounts payable by Buyer.
2.10 LIQUIDATED DAMAGES. IN THE EVENT THE CLOSING AND THE CONSUMMATION
OF EITHER THE TRANSACTION CONTEMPLATED HEREBY OR THE TRANSACTION CONTEMPLATED BY
THE SANSOME PURCHASE AGREEMENT SHALL NOT OCCUR FOR ANY REASON OTHER THAN DUE TO
A TERMINATION OF THIS AGREEMENT BY BUYER OR BY SANSOME PURSUANT TO SUBSECTIONS
12.1(a), 12.1(b) or 12.1(c), OR BY LOUISIANA-PACIFIC PURSUANT TO SUBSECTION
12.1(a) OR 12.1(b), REDWOOD, LLC SHALL HAVE THE RIGHT TO (i) RETAIN THE DEPOSIT
(TOGETHER WITH ATTORNEY'S FEES AND EXPENSES AS SPECIFIED BELOW) AS LIQUIDATED
DAMAGES AND NOT AS A PENALTY (THE PARTIES HERETO ACKNOWLEDGE THAT
LOUISIANA-PACIFIC'S AND REDWOOD, LLC'S DAMAGES AS A RESULT OF SUCH FAILURE TO
CLOSE ARE NOT CAPABLE OF EXACT ASCERTAINMENT AND THAT SAID LIQUIDATED DAMAGES,
TOGETHER WITH ANY ATTORNEYS' FEES AND EXPENSES INCURRED BY LOUISIANA-PACIFIC OR
REDWOOD, LLC IN CONNECTION WITH THIS AGREEMENT, ARE A FAIR AND REASONABLE
ESTIMATE OF THE NET DETRIMENT THAT LOUISIANA-PACIFIC AND REDWOOD, LLC WOULD
SUFFER IN THE EVENT OF SUCH FAILURE TO CLOSE) OR (ii) EXERCISE ITS RIGHTS UNDER
SECTION 13.9. THE PAYMENT OF SUCH AMOUNT AS LIQUIDATED DAMAGES IS NOT INTENDED
AS A FORFEITURE OR PENALTY WITHIN THE MEANING OF CALIFORNIA CIVIL CODE SECTIONS
3275 OR 3369, BUT IS INTENDED TO CONSTITUTE LIQUIDATED DAMAGES TO REDWOOD, LLC
PURSUANT TO CALIFORNIA CIVIL CODE SECTION 1671. REDWOOD, LLC AND BUYER HEREBY
WAIVE THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 3389.
------------------------ -------------------------
Buyer's Initials Redwood LLC's Initials
11
2.11 CASH. Notwithstanding any provision in this Agreement to the
contrary, nothing herein shall constitute an agreement to sell cash, bank
accounts or cash equivalents (the exclusion of which will be reflected in the
adjustment to Purchase Price as provided in subsection 2.7(d)).
2.12 DISCLAIMER. Except as otherwise expressly set forth in Article IV
of this Agreement or in Article II of the Environmental Agreement,
Louisiana-Pacific, Redwood, LLC, LPS Corporation and Samoa, Inc. expressly
disclaim any representations or warranties of any kind or nature, express or
implied, as to the condition, title, value or quality of the assets (including
the Real Property, the Samoa Personal Property, the Samoa Leased Assets, the
Redwood Personal Property and the Balance Sheet Assets) or properties currently
or formerly used, operated, owned, leased, controlled, possessed, occupied or
maintained by Louisiana-Pacific or its Affiliates (including the Subsidiaries)
and Louisiana-Pacific, Redwood, LLC, LPS Corporation and Samoa, Inc.
SPECIFICALLY DISCLAIM ANY REPRESENTATION OR WARRANTY OF MERCHANTABILITY, USAGE,
SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO SUCH ASSETS OR
PROPERTIES, OR ANY PART THEREOF, OR AS TO THE WORKMANSHIP THEREOF, OR THE
ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR PATENT, IT BEING UNDERSTOOD
THAT SUCH ASSETS AND PROPERTIES ARE BEING ACQUIRED "AS IS, WHERE IS" ON THE
CLOSING DATE, AND IN THEIR PRESENT CONDITION, WITH ALL FAULTS, AND (WITHOUT
LIMITING THE GENERALITY OF THE FOREGOING) WITHOUT ANY EXPRESS OR IMPLIED
WARRANTY OR REPRESENTATION AS TO THE VOLUME, AGE CLASS, SPECIES OR
MERCHANTABILITY OF ANY OF THE TIMBERLANDS SOLD TO BUYER HEREUNDER, OR AS TO THE
ACREAGE, TAX STATUS, LEGAL ACCESS, OPERATIONS, ENCROACHMENTS, PHYSICAL
CONDITION, ZONING OR ANY OTHER ASPECT OF SUCH TIMBERLANDS, AND THAT BUYER SHALL
RELY ON ITS OWN EXAMINATION AND INVESTIGATION THEREOF.
ARTICLE III
CLOSING
3.1 CLOSING. Subject to the fulfillment or waiver of the conditions
precedent set forth in Articles VII and VIII, the consummation of the purchase
and sale of the Purchased Assets, entry into the Lease and assumption of the
Assumed Liabilities (the "Closing") shall take place at the offices of Orrick,
Herrington & Sutcliffe LLP, Old Federal Reserve Bank Building, 400 Sansome
Street, San Francisco, California, effective as of 12:01 a.m., local time, (a)
on June 22, 1998 (provided, that, in the event the HSR Act condition in Section
2.7(f) shall have been met, Louisiana-Pacific may elect to close early upon 21
days written notice to Buyer, subject to other extension options, such as
Section 2.7(f), set forth herein), or (b) at such other date, time or place as
the parties hereto may agree upon in writing. The date and effective time of the
Closing are referred to herein as the "Closing Date."
3.2 LOUISIANA-PACIFIC OBLIGATIONS AT CLOSING. At the Closing,
Louisiana-Pacific, LPS Corporation, Redwood, LLC and Samoa, Inc., as
appropriate, shall deliver or cause to be delivered to Buyer:
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(a) one or more duly executed grant deeds from Redwood, LLC, subject to
Permitted Liens, in form and content reasonably satisfactory to Buyer, conveying
to Buyer fee title to the real property owned by Redwood, LLC among the
Purchased Assets, together with any real property transfer tax declarations for
each grant deed as may be required by the applicable county recorder's office;
(b) duly executed Bill of Sale from Redwood, LLC, transferring and
conveying to Buyer the personal property owned by Redwood, LLC among the
Purchased Assets and the Books and Records existing on the Closing Date;
(c) in the event that any necessary third Person consents are actually
obtained therefor (it being understood that such consent shall not be a
condition to Closing), a duly executed counterpart to an Assignment and
Assumption of Lease for each of the leases of real or personal property to
Redwood, LLC among the Purchased Assets, substantially in the form attached as
Exhibit 3.2(c) (the "Assignment and Assumption of Lease");
(d) duly executed counterpart to an Assignment and Assumption
Agreement, in the form of Exhibit 3.2(d) providing for the assignment to Buyer
of the Contracts, as well as the intangible property to be assigned to Buyer
under Section 2.2, and the assumption by Buyer of the Assumed Liabilities (the
"Assignment and Assumption Agreement");
(e) certificates of the Secretaries of Louisiana-Pacific, LPS
Corporation, Redwood, LLC and Samoa, Inc. (i) certifying to the attached
Charter, Bylaws and board resolutions authorizing the execution, delivery and
performance of this Agreement and the Ancillary Agreements, and (ii) attesting
to the incumbency of officers executing this Agreement, the Ancillary Agreements
and the certificates, agreements and transfer documents delivered by
Louisiana-Pacific, LPS Corporation, Redwood, LLC or Samoa, Inc. at the Closing;
(f) certificate of duly authorized officer on behalf of each of
Louisiana-Pacific, LPS Corporation and each of the Subsidiaries, dated the
Closing Date, pursuant to which the applicable entity (i) certifies as to
compliance with the conditions set forth in Article VII, and represents and
warrants that all of the representations and warranties of the applicable entity
are true and correct as of the Closing Date, except, in each case, (x) that
representations or warranties made as of, or in respect of, only a specified
date or period are true and correct in respect of or as of, such date or period,
and (y) to the extent that any failure of such representations and warranties to
be true and correct as aforesaid when taken in the aggregate would not have a
Material Adverse Effect or (2) to the extent there has been an Allowed
Pre-Signing Change or an Allowed Pre-Closing Change;
(g) copies of any third Person consents to assignment of Contracts that
may have actually been obtained by Louisiana-Pacific through the Closing Date
(it being understood and agreed that the obtaining of such consents shall not be
a condition to Closing);
(h) the Ancillary Agreements, duly executed by Louisiana-Pacific, LPS
Corporation, Redwood, LLC and Samoa, Inc., as applicable; and
(i) releases or the equivalent for all existing monetary Real Property
Encumbrances which are not Permitted Liens affecting the Owned Real Property.
13
3.3 BUYER OBLIGATIONS AT CLOSING. At the Closing, Buyer and Simpson
Investment, as applicable, shall deliver or cause to be delivered to
Louisiana-Pacific:
(a) The Closing Cash Payment, by wire transfer of immediately available
funds to Redwood LLC's account, as specified by Redwood, LLC in writing not less
than five business days prior to the Closing Date;
(b) if applicable, a duly executed Note and related documentation;
(c) duly executed counterpart to the Assignment and Assumption
Agreement;
(d) in the event that any necessary third Person consents are actually
obtained therefor (it being understood that such consent shall not be a
condition to Closing), a duly executed counterpart to each Assignment and
Assumption of Lease;
(e) certificate of the Secretaries of Buyer and Simpson Investment (i)
certifying to the attached Charter, Bylaws and board resolutions authorizing the
execution, delivery and performance of this Agreement and the Ancillary
Agreements, and (ii) attesting to the incumbency of Buyer's and Simpson
Investment's officers executing this Agreement, the Ancillary Agreements and the
certificates, agreements and transfer documents delivered by Buyer at the
Closing;
(f) certificate of duly authorized officer on behalf of each of Buyer
and Simpson Investment, dated the Closing Date, pursuant to which the applicable
entity (i) certifies as to compliance with the conditions set forth in Article
VIII and (ii) represents and warrants that all of the representations and
warranties of the applicable entity are true and correct in all material
respects as of the Closing Date;
(g) copies of applications for employment and initial and final letters
offering employment to certain of the Business Employees pursuant to Section
11.1, substantially in the form of Exhibit 3.3(g); and
(h) the Ancillary Agreements, duly executed by Buyer, Simpson
Investment or their Affiliates, as applicable.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF LOUISIANA-PACIFIC
Except as may be set forth in the Disclosure Schedule, except for any
Allowed Pre-Signing Changes or Allowed Pre-Closing Changes and except with
respect to Environmental Laws and Environmental Permits and all Liabilities
thereunder (which representations and warranties and Liabilities related thereto
are set forth exclusively in the Environmental Agreement), Louisiana-Pacific,
LPS Corporation, Redwood, LLC and Samoa, Inc. each represent and warrant to
Buyer, as relevant to each entity, as follows:
4.1 ORGANIZATION. Louisiana-Pacific, Samoa, Inc. and LPS Corporation
are corporations duly organized, validly existing and in good standing under the
laws of the state of
14
their incorporation and have full corporate power and corporate authority to own
their respective assets and properties and to conduct their respective
businesses as and where they are now being conducted. Louisiana-Pacific, LPS
Corporation and Samoa, Inc. are qualified to transact business as foreign
corporations in the State of California. Redwood, LLC is a limited liability
company duly organized, validly existing and in good standing under the laws of
the State of Delaware and has full limited liability company power and limited
liability company authority to own its assets and properties and to conduct its
business as and where it is now being conducted. Redwood, LLC is qualified to
transact business as a foreign limited liability company in the State of
California. By virtue of the nature of the properties owned or leased by
Louisiana-Pacific, LPS Corporation, Redwood, LLC and Samoa, Inc. and the
Business conducted by them, neither Louisiana-Pacific, LPS Corporation, Redwood,
LLC nor Samoa, Inc. are required to qualify to transact business as a foreign
corporation in any jurisdiction (other than California), except where the
failure to be so qualified is not reasonably likely to result in a Material
Adverse Effect.
4.2 AUTHORIZATION AND ENFORCEABILITY. Louisiana-Pacific, LPS
Corporation, Redwood, LLC and Samoa, Inc. each has full corporate (or limited
liability company, as applicable) power and corporate (or limited liability
company, as applicable) authority to enter into this Agreement and the Ancillary
Agreements to which it is a party and to consummate the transactions
contemplated hereby and thereby. The execution and delivery of this Agreement
and the Ancillary Agreements and the consummation of the transactions
contemplated hereby and thereby by Louisiana-Pacific, LPS Corporation, Redwood,
LLC and Samoa, Inc., where relevant, (i) have been duly authorized by all
necessary corporate (or limited liability company, as applicable) action on the
part of Louisiana-Pacific, LPS Corporation, Redwood, LLC and Samoa, Inc., where
relevant, and (ii) do not require approval of Louisiana-Pacific's stockholders.
This Agreement and the Ancillary Agreements have been duly executed and
delivered by Louisiana-Pacific, LPS Corporation, Redwood, LLC and Samoa, Inc.,
where relevant. This Agreement and the Ancillary Agreements each constitutes a
legal, valid and binding obligation of Louisiana-Pacific, LPS Corporation,
Redwood, LLC and Samoa, Inc., where relevant, enforceable against each such
entity (to the extent they are parties to such agreements), respectively, in
accordance with its terms, except as the enforceability thereof may be limited
by bankruptcy, insolvency, reorganization, moratorium or other similar laws
affecting the enforcement of creditors' rights generally and general principles
of equity (regardless of whether enforceability is considered in a proceeding at
law or in equity).
4.3 CONSENTS AND APPROVALS. Except for compliance with the notification
filing and waiting period requirements of the HSR Act, no consent, waiver,
approval, order or authorization of, notice to, or registration, declaration,
designation, qualification or filing with, any Governmental Authority or third
Person, domestic or foreign, is or has been required on the part of
Louisiana-Pacific, LPS Corporation, Redwood, LLC or Samoa, Inc., where relevant,
in connection with the execution and delivery of this Agreement or the Ancillary
Agreements or the consummation by them of the transactions contemplated hereby
or thereby, other than where the failure to obtain such consents, waivers,
approvals, orders or authorizations or to make or effect such registrations,
declarations, designations, qualifications or filings is not reasonably likely
to (x) prevent or materially delay consummation of the transactions contemplated
by this Agreement and the Ancillary Agreements, (y) prevent Louisiana-Pacific,
LPS Corporation, Redwood, LLC or Samoa, Inc., where relevant, from performing
their obligations under this Agreement and the Ancillary Agreements or (z)
result in a Material Adverse Effect; provided,
15
however, that no representation or warranty is made herein as to
whether such consents would be needed with respect to any contract, agreement,
arrangement, purchase order, commitment, permit, license, order, approval or
authorization other than those listed in Disclosure Schedule Sections 4.13 or
4.14 (it being understood that obtaining consents for the transfer of the items
set forth on Disclosure Schedule Section 4.3 is not a condition to Closing), and
no representation or warranty is made herein with respect to any actions that
may be required from any Governmental Authority under or pursuant to the Lease.
4.4 NON-CONTRAVENTION. Neither the execution and delivery of this
Agreement or the Ancillary Agreements by Louisiana-Pacific, LPS Corporation,
Redwood, LLC or Samoa, Inc., where relevant, nor the consummation by them of the
transactions contemplated hereby or thereby, will violate or conflict with (a)
any provision of Louisiana-Pacific's, LPS Corporation's, Samoa, Inc.'s or
Redwood LLC's Charter or Bylaws or (b) to Louisiana-Pacific's knowledge, any
statute, law, regulation or Governmental Order to which Louisiana-Pacific, LPS
Corporation or the Subsidiaries or the assets and properties of
Louisiana-Pacific, LPS Corporation or the Subsidiaries are bound or subject,
except, with respect to clause (b), for such violations and conflicts which may
be required under or pursuant to the Lease or are not reasonably likely to (i)
prevent or materially delay consummation of the transactions contemplated by
this Agreement and the Ancillary Agreements, (ii) prevent Louisiana-Pacific from
performing its obligations under this Agreement and the Ancillary Agreements, or
(iii) result in a Material Adverse Effect.
4.5 FINANCIAL STATEMENTS. Disclosure Schedule Section 4.5 sets forth
(a) the Balance Sheet and (b) certain financial information for the Business
(together with the Balance Sheet, the "Financial Statements"). The Financial
Statements have been prepared based on the applicable entries from
Louisiana-Pacific's general ledger (but have not been prepared on the basis of
generally accepted accounting principles), and were prepared based on the
assumptions and caveats stated in Disclosure Schedule Section 4.5. The Books and
Records of Louisiana-Pacific and its Affiliates from which the Financial
Statements were prepared were complete and accurate in all material respects at
the time of such preparation. The recognition of revenues and expenses in such
Financial Statements is consistent in all material respects with the recognition
policies followed by Louisiana-Pacific for its other internal unaudited
financial statements.
4.6 ABSENCE OF CERTAIN CHANGES. During the period between the date of
the Balance Sheet and the Agreement Date, (i) as otherwise contemplated by this
Agreement or the Sansome Agreement, and (ii) specifically subject to the
assumptions and caveats relating to the Financial Statements set forth in
Disclosure Schedule Section 4.5, neither Louisiana-Pacific, LPS Corporation,
Redwood, LLC nor Samoa, Inc. has:
(a) suffered any damage or destruction adversely affecting the Business
or the tangible assets among the Real Property, the Samoa Personal Property and
the Redwood Personal Property that has had or is reasonably likely to result in
a Material Adverse Effect;
(b) made any change in the compensation levels of the senior executives
of the Business, any changes in the manner in which other employees of the
Business generally are compensated, or any provision of additional or
supplemental benefits for employees of the
16
Business generally, except normal periodic increases or promotions effected in
the ordinary course of business;
(c) engaged in any transaction with Louisiana-Pacific or any of its
Affiliates other than in the ordinary course of business consistent with past
practice;
(d) engaged in any sale or purchase of real estate with
Louisiana-Pacific or any other real estate related transaction that would
continue after the Closing Date;
(e) entered into any contract with Louisiana-Pacific or its Affiliates
that would last after the Closing Date;
(f) borrowed any money or issued any bonds, debentures, notes or other
corporate securities evidencing money borrowed, in each case, that will be an
Assumed Liability; or
(g) engaged in any transaction outside of the ordinary course of
business other than as contemplated in this Agreement or the Sansome Purchase
Agreement; or
(h) agreed, whether in writing or otherwise, to take any action
described in this Section 4.6.
4.7 TITLE TO THE PERSONAL APROPERTY
(a) Except for Encumbrances which individually or in the aggregate are
not reasonably likely to result in a Material Adverse Effect:
(i) Samoa, Inc. has good title to all of the personal property set
forth on Disclosure Schedule Section 4.7(a)(i)-1 and has a valid
leasehold interest in all of the personal property set forth on
Disclosure Schedule Section 4.7(a)(i)-2, in each case, subject to
Allowed Pre-Closing Changes (collectively, the "Samoa Personal
Property");
(ii) Redwood, LLC has good title to all of the personal property
set forth on Disclosure Schedule Section 4.7(a)(ii)-1 and has a valid
leasehold interest in all of the personal property set forth on
Disclosure Schedule Section 4.7(a)(ii)-2, in each case, subject to
Allowed Pre-Closing Changes (collectively, the "Non-Timber Personal
Property");
(iii) Redwood, LLC has good title to all of the personal property
set forth on Disclosure Schedule Section 4.7(a)(iii)-1 and has a valid
leasehold interest in all of the personal property set forth on
Disclosure Schedule Section 4.7(a)(iii)-2, in each case, subject to
Allowed Pre-Closing Changes (collectively, the "Timber Personal
Property" and, together with the Non-Timber Personal Property, the
"Redwood Personal Property"); and
(iv) Louisiana-Pacific has good title to the Balance Sheet Assets,
subject to Allowed Pre-Closing Changes.
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4.8 REAL PROPERTY.
(a) Disclosure Schedule Section 4.8(a)-1 contains an accurate and
complete list of each parcel of real property owned by Samoa, Inc. that is to be
leased to Buyer pursuant to the Lease, subject to Allowed Pre-Closing Changes
(the "Samoa Owned Real Property") and Disclosure Schedule Section 4.8(a)-2
contains an accurate and complete list of all leases of real property leased or
subleased to Samoa, Inc. that are to be assumed by Buyer pursuant to this
Agreement, subject to Allowed Pre-Closing Changes (the "Samoa Leased Real
Property" and together with the Samoa Owned Real Property, the "Samoa Real
Property").
(b) Disclosure Schedule Section 4.8(b)-1 lists certain non-timber real
property owned by Redwood, LLC, subject to Allowed Pre-Closing Changes (the
"Non-Timber Owned Real Property") and Disclosure Schedule Section 4.8(b)-2 lists
certain non-timber leases of real property leased or subleased to Redwood, LLC,
subject to Allowed Pre-Closing Changes (the "Non-Timber Leased Real Property"
and together with the Non-Timber Owned Real Property, the "Non-Timber Real
Property").
(c) Disclosure Schedule Section 4.8(c)-1 lists certain timber real
property owned by Redwood, LLC, subject to Allowed Pre-Closing Changes (the
"Timber Owned Real Property") and Disclosure Schedule Section 4.8(c)-2 lists
certain leases of timber real property leased or subleased to Redwood, LLC,
subject to Allowed Pre-Closing Changes (the "Timber Leased Real Property" and
together with the Timber Owned Real Property, the "Timber Real Property").
(d) The Non-Timber Owned Real Property and the Timber Owned Real
Property constitute all of the real property owned by Redwood, LLC other than
the Owned Real Property as defined in the Sansome Purchase Agreement
(collectively, after giving effect, in each case, to Allowed Pre-Closing
Changes, the "Redwood Owned Real Property"). The Non-Timber Leased Real Property
and the Timber Leased Real Property constitute all of the real property leased
or subleased to Redwood, LLC other than the Leased Real Property as defined in
the Sansome Purchase Agreement (collectively, after giving effect, in each case,
to Allowed Pre-Closing Changes, the "Redwood Leased Real Property").
(e) The Samoa Owned Real Property and the Redwood Owned Real Property
are collectively referred to herein as the "Owned Real Property." Each
Subsidiary has good title to the Owned Real Property it purports to own, and at
Closing, such Owned Real Property will be free and clear of any Encumbrance,
other than Permitted Liens and other than Encumbrances which individually or in
the aggregate are not reasonably likely to result in a Material Adverse Effect.
(f) The Samoa Leased Real Property and the Redwood Leased Real Property
are collectively referred to herein as the "Leased Real Property." Originals or
copies of such leases and subleases, which are accurate and complete, have been
provided to Buyer (in accordance with the terms of the Confidentiality
Agreement) for review.
(g) Disclosure Schedule Section 4.8(g) contains an accurate and
complete list of all leases of Owned Real Property and subleases of Leased Real
Property by Louisiana-Pacific
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or the Subsidiaries to third Persons, subject, in each case, to Allowed
Pre-Closing Changes. Originals or copies of such leases and subleases, which are
accurate and complete, have been provided to Buyer (in accordance with the terms
of the Confidentiality Agreement) for review.
(h) Disclosure Schedule Section 4.8(h) sets forth a map that generally
identifies the area covered by the Real Property that Louisiana-Pacific will
convey to Buyer hereunder.
4.9 INTELLECTUAL PROPERTY. There are no (a) patents anywhere in the
world, (b) registered or unregistered trademarks, trade names or service marks
or applications therefor anywhere in the world, (c) copyrights or applications
therefor anywhere in the world, or (d) licenses relating to any of the
foregoing, in each case used or held for use by Louisiana-Pacific, LPS
Corporation, Redwood, LLC or Samoa, Inc., that, in each case, are exclusively
related to the Business.
4.10 LITIGATION. There is no Action pending or, to the knowledge of
Louisiana-Pacific, threatened against Louisiana-Pacific affecting the Business
or against LPS Corporation or the Subsidiaries, where the amount or value in
controversy is reasonably likely to exceed $75,000, whether at law or in equity,
or before or by any Governmental Authority, nor is there any material
Governmental Order to which Louisiana-Pacific, the Subsidiaries or any of their
properties or assets are subject or bound which affects the Business (other than
any Governmental Order that may be applicable generally to the industry in which
the Business operates).
4.11 EMPLOYEE BENEFIT MATTERS
(a) Disclosure Schedule Section 4.11 sets forth a complete and accurate
listing of the following: (i) the name, title, recognized hire date, current
annual base salary rate (if salaried) or current hourly compensation rate (if
hourly), of each employee of Louisiana-Pacific whose employment is exclusively
dedicated to the Business (the "Business Employees"); (ii) each "Employee
Benefit Plan," as such term is defined in Section 3(3) of ERISA, which is
covered by any provision of ERISA and which is maintained by Louisiana-Pacific
or any of its Affiliates for the benefit of the Business Employees; (iii) each
other material fringe benefit plan, policy or arrangement currently maintained
by Louisiana-Pacific or any of its Affiliates for the benefit of Business
Employees that provides for pension, deferred compensation, bonuses, severance,
employee insurance coverage or similar employee benefits; and (iv) an accurate
and complete list of all employment, managerial, advisory, and consulting
agreements, employee confidentiality agreements, and all other material
agreements, policies, or arrangements maintained by Louisiana-Pacific for
Business Employees. Louisiana-Pacific has delivered to Buyer copies (in
accordance with the terms of the Confidentiality Agreement), which were accurate
and complete as of the date so delivered, of all such documents and (if
applicable) summary plan descriptions with respect to such plans, agreements and
arrangements, or summary description(s) of any such plans, agreements or
arrangements not otherwise in writing.
(b) To the knowledge of Louisiana-Pacific, each Employee Benefit Plan
has been established and administered in all material respects in accordance
with the material terms of ERISA and the applicable provisions of the Code.
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4.12 TAXES
(a) All material Tax Returns relating to any Taxes, which are required
to be filed by Louisiana-Pacific, LPS Corporation and the Subsidiaries, with
respect to the Business or the Purchased Assets, prior to the Closing Date, are
correct and have been duly and timely filed, and all material Taxes that have
become due pursuant to such Tax Returns have been fully paid prior to the
Closing.
(b) There are (i) no actions or proceedings currently pending or, to
Louisiana-Pacific's knowledge, threatened against LPS Corporation or the
Subsidiaries, the Business, the Purchased Assets, the Samoa Leased Assets, or,
with respect to the Purchased Assets or the Business, Louisiana-Pacific, by any
Governmental Authority for the assessment or collection of Taxes; (ii) no audits
or other examinations of any Tax Return is in progress nor have the Subsidiaries
been notified of any request for examination; (iii) no claims for assessment or
collection of taxes has been asserted against LPS Corporation, the Subsidiaries,
the Business, the Purchased Assets, the Samoa Leased Assets, or, with respect to
the Purchased Assets or the Business, Louisiana-Pacific, and (iv) no matters
under discussion with any Governmental Authority regarding claims for assessment
or collection of Taxes against LPS Corporation, the Subsidiaries, the Business,
the Purchased Assets, the Samoa Leased Assets, or, with respect to the Purchased
Assets or the Business, Louisiana-Pacific, and neither of the Subsidiaries nor
Louisiana-Pacific has any reason to believe that any such claims for Taxes
described in Section 4.12(a) will be asserted. There are no liens on any of the
Purchased Assets that arose in connection with the failure (or alleged failure)
to pay any Taxes. Neither LPS Corporation, the Subsidiaries nor, with respect to
the Business or the Purchased Assets, Louisiana-Pacific, has made any tax
elections regarding the Business outside of the ordinary course of the Business.
(c) None of Louisiana-Pacific, LPS Corporation, or the Subsidiaries is
a "foreign person" within the meaning of Section 1445(b)(2) of the Code.
4.13 CONTRACTS AND COMMITMENTS. Disclosure Schedule Section 4.13
contains an accurate and complete list (except as modified by Allowed
Pre-Closing Changes) of those Contracts which individually require total
payments to or by Louisiana-Pacific or the Subsidiaries of at least $100,000
annually or in any single payment of $100,000 or more (collectively, the
"Commitments"). To Louisiana-Pacific's knowledge, none of Louisiana-Pacific,
either of the Subsidiaries or any of the other parties thereto is in default
under any of the Commitments, which default is reasonably likely to result in a
Material Adverse Effect.
4.14 NON-ENVIRONMENTAL PERMITS AND OTHER OPERATING RIGHTS. Disclosure
Schedule Section 4.14 contains an accurate and complete list (except as may be
modified by Allowed Pre-Closing Changes) of each permit, license, order,
approval or authorization (i) required by any applicable law, statute,
regulation or Governmental Order, or, to Louisiana-Pacific's knowledge, (ii)
required by the property or contract rights of third Persons, in each case, that
are necessary to permit the operation of the Business in the manner in which it
is currently being conducted by Louisiana-Pacific, Redwood, LLC or Samoa, Inc.,
as applicable, and to permit the current occupancy of the Real Property, except
where the failure to possess any such permit, license, order, approval or
authorization is not reasonably likely to result in a Material Adverse Effect
(collectively, the "Permits").
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4.15 LABOR MATTERS. No Business Employee is covered under any
collective bargaining or union or other employee association agreement. As it
relates to the Business: (a) there is no unfair labor practice complaint against
Louisiana-Pacific pending or, to the knowledge of Louisiana-Pacific, threatened
before the National Labor Relations Board or any comparable state or local
Governmental Authority, (b) there is no labor strike, slowdown or stoppage
actually pending or, to the knowledge of Louisiana-Pacific, threatened against
or directly affecting Louisiana-Pacific, (c) no grievance or any Action arising
out of or under collective bargaining agreements is pending or, to the knowledge
of Louisiana-Pacific, threatened against Louisiana-Pacific and (d) to the
knowledge of Louisiana-Pacific, there are no representation petitions pending
before the National Labor Relations Board or demands for representation
recognition pending for any group of non-union employees from any labor
organization, which, in the case of any of clauses (a), (b), (c) or (d), is
reasonably likely to result in a Material Adverse Effect.
4.16 NO BROKERS. Except with respect to Louisiana-Pacific's engagement
of SBC Warburg Dillon Read Inc., the fees and expenses of which will be paid by
Louisiana-Pacific, none of Louisiana-Pacific, LPS Corporation, Redwood, LLC,
Samoa, Inc. or any of their directors, officers or employees has employed any
broker, finder or investment banker or incurred any Liability for any brokerage
fees, commissions, finders' fees or similar fees in connection with the
transactions contemplated by this Agreement.
4.17 ACQUISITION FOR INVESTMENT. Louisiana-Pacific, LPS Corporation and
the Subsidiaries acknowledge that the Note will not be registered under the
Securities Act of 1933, as amended, or qualified or registered under any state
securities laws on the ground that no distribution or public offering of the
Note is to be effected and that no public market now exists for the Note and
that a public market may never exist therefor. Louisiana-Pacific, LPS
Corporation and the Subsidiaries will not take any action or permit any action
to be taken which would require Buyer to file, register or otherwise take steps
to comply with the registration requirements of any federal or state securities
laws.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer and Simpson Investment represent and warrant to Louisiana-Pacific
as follows:
5.1 ORGANIZATION. Each of Buyer and Simpson Investment, respectively,
is a corporation duly organized, validly existing and in good standing under the
laws of the State of Washington and has full corporate power and corporate
authority to own its assets and properties and to conduct its business as and
where it is now being conducted.
5.2 AUTHORIZATION AND ENFORCEABILITY. Each of Buyer and Simpson
Investment, respectively, has full corporate power and corporate authority to
enter into this Agreement and the Ancillary Agreements and to consummate the
transactions contemplated hereby and thereby. The execution and delivery of this
Agreement and the Ancillary Agreements and the consummation of the transactions
contemplated hereby and thereby by Buyer and Simpson Investment, respectively,
have been duly authorized by all necessary
21
corporate action on the part of Buyer and Simpson Investment, respectively. This
Agreement has been duly executed and delivered by Buyer and Simpson Investment,
respectively. This Agreement constitutes, and upon the execution and delivery
thereof by Buyer and Simpson Investment, respectively, the Ancillary Agreements
will constitute, a legal, valid and binding obligation of Buyer and Simpson
Investment, respectively, enforceable against Buyer and Simpson Investment,
respectively, in accordance with its terms, except as the enforceability thereof
may be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting the enforcement of creditors' rights generally and
general principles of equity (regardless of whether enforceability is considered
in a proceeding at law or in equity).
5.3 CONSENTS AND APPROVALS. Except for compliance with the notification
filing and waiting period requirements of the HSR Act, no consent, waiver,
approval, order or authorization of, notice to, or registration, declaration,
designation, qualification or filing with, any Governmental Authority or third
Person, domestic or foreign, is or has been or will be required on the part of
Buyer or Simpson Investment in connection with the execution and delivery of
this Agreement or the Ancillary Agreements or the consummation by Buyer or
Simpson Investment of the transactions contemplated hereby or thereby, other
than where the failure to obtain such consents, waivers, approvals, orders or
authorizations or to make or effect such registrations, declarations,
designations, qualifications or filings is not reasonably likely to (x) prevent
or materially delay consummation of the transactions contemplated by this
Agreement and the Ancillary Agreements or (y) prevent Buyer or Simpson
Investment from performing its obligations under this Agreement and the
Ancillary Agreements.
5.4 NON-CONTRAVENTION. Neither the execution and delivery of this
Agreement or the Ancillary Agreements, nor the consummation of the transactions
contemplated hereby or thereby, will violate or conflict with (a) any provision
of Buyer's or Simpson Investment's Charter or Bylaws or (b) to Buyer's
knowledge, any statute, law, regulation or Governmental Order to which Buyer or
Simpson Investment or the assets or properties of Buyer or Simpson Investment
are bound or subject, except for such violations and conflicts which are not
reasonably likely to (i) prevent or materially delay consummation of the
transactions contemplated by this Agreement and the Ancillary Agreements or (ii)
prevent Buyer or Simpson Investment from performing its obligations under this
Agreement and the Ancillary Agreements.
5.5 ABILITY. Buyer and Simpson Investment know of no fact or
circumstance that would impair their ability (or the ability of any of their
Affiliates that are or will be obligated pursuant to this Agreement, the
Ancillary Agreements or the Term Sheet) to consummate the transaction
contemplated hereby.
5.6 NO BROKERS. Neither Buyer, Simpson Investment nor any of their
directors, officers or employees has employed any broker, finder or investment
banker or incurred any Liability for any brokerage fees, commissions, finders'
fees or similar fees in connection with the transactions contemplated by this
Agreement.
5.7 FINANCIAL STATEMENTS. Buyer and Simpson Investment have delivered
to Louisiana-Pacific complete and accurate copies of the audited consolidated
and combined (except not combined in the January 1, 1995 and January 2, 1994
statements) balance sheets as at December 28, 1997, December 29, 1996, December
31, 1995, January 1, 1995 and January 2,
22
1994 of Simpson Investment and the entities stated therein, and the audited
consolidated statements of operations and cash flows for the twelve month
periods specified therein, certified by Simpson Investment's independent public
accountant. All such financial statements and balance sheets being referred to
herein collectively as the "Buyer Financial Statements". The Buyer Financial
Statements are true and correct and have been prepared in accordance with
generally accepted accounting principles applied on a consistent basis
throughout the periods indicated. The Buyer Financial Statements present fairly
the financial condition of the Buyer as of the respective dates and for the
periods indicated.
5.8 ACQUISITION FOR OWN ACCOUNT. Buyer is purchasing the Purchased
Assets for its own account.
5.9 HIGHLY CONFIDENT LETTER. Louisiana-Pacific, as a material
inducement to entering into this transaction, has received that certain "highly
confident" letter dated April 30, 1998 from BancAmerica Robertson Stephens.
Buyer and Simpson Investment acknowledge that Louisiana-Pacific has advised
Buyer that it is relying upon such letter. Neither Buyer nor Simpson Investment
knows of any facts or circumstances that would adversely impact on the
information and advice given in said letter, and represents that there has been
no change in the Buyer's status that would adversely affect said information or
advice.
ARTICLE VI
CERTAIN COVENANTS
6.1 ACCESS TO INFORMATION
(a) From the Agreement Date through the Closing Date, but subject to
any rights of third Persons, upon reasonable notice, Louisiana-Pacific, LPS
Corporation, Redwood, LLC and Samoa, Inc. shall (i) afford the officers,
employees and authorized agents and representatives of Buyer reasonable access
during normal business hours to the offices, properties and Books and Records of
the Business and (ii) furnish to the officers, employees and authorized agents
and representatives of Buyer such additional financial and operating data and
other information regarding the assets and properties of the Business (or
legible copies thereof) as Buyer may from time to time reasonably request;
provided, however, that such investigation shall not unreasonably interfere with
any of the businesses or operations of the Business or Louisiana-Pacific.
Without limiting the generality of the foregoing, Louisiana-Pacific, LPS
Corporation, Redwood, LLC and Samoa, Inc. shall cooperate fully with Buyer's
investigation of such assets and properties and provide copies of such documents
in its possession as Buyer may reasonably request to confirm the title to any
and all properties or assets owned or leased by Louisiana-Pacific, LPS
Corporation, Redwood, LLC or Samoa, Inc. and exclusively related to the
Business.
(b) Notwithstanding subsection 6.1(a), and except for background
environmental records reviews of any Governmental Authority, (i) Buyer shall not
investigate any matter with any Governmental Authority having jurisdiction over
any aspect of the Business or Louisiana-Pacific's assets or properties, unless
and until the written consent of Louisiana-Pacific to the making of such
investigation and contacting of any Governmental Authority has been received by
Buyer, which consent shall not be unreasonably withheld or delayed, and (ii)
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Buyer's right of examination and access pending the Closing with
respect to environmental matters relating to the Real Property shall be limited
to an examination of existing records and interviews with Louisiana-Pacific's
personnel as authorized in writing by Louisiana-Pacific. In no event shall any
physical testing of the Real Property for the presence of Hazardous Material
take place unless and until Buyer has executed an access agreement, in the form
attached as Exhibit 6.1(b), including a detailed description of the scope of the
investigation and the work to be performed which is reasonably satisfactory to
Louisiana-Pacific (whose permission shall not be unreasonably withheld or
delayed), together with an appropriate agreement indemnifying Louisiana-Pacific
for any Losses caused by Buyer resulting from such physical testing. Copies of
all test results, reports and other information obtained by Buyer from its
investigation (including all draft reports) shall be delivered to
Louisiana-Pacific promptly after receipt by Buyer. At Buyer's request,
Louisiana-Pacific shall enter into a joint defense agreement in reasonable form
in order to maintain any privileges that may apply to such results, reports or
information.
6.2 CONDUCT OF BUSINESS PENDING CLOSING. From the Agreement Date
through the Closing Date, except as required or permitted by this Agreement or
otherwise specifically consented to by Buyer in writing, after specific notice
from Louisiana-Pacific, which consent shall not be unreasonably withheld or
delayed:
(a) Louisiana-Pacific, LPS Corporation, and the Subsidiaries shall
operate the Business only in its usual, regular and ordinary manner and
substantially in the same manner as heretofore conducted. Louisiana-Pacific, LPS
Corporation and the Subsidiaries shall use commercially reasonable efforts to
(i) preserve the Business and (ii) keep available to Buyer the services of the
Business Employees; and
(b) Louisiana-Pacific, LPS Corporation and the Subsidiaries shall not,
with respect to the Business (except as otherwise provided by this Agreement),
without the written consent of Buyer, which consent shall not be unreasonably
withheld or delayed:
(i) incur, or assume or become subject to any additional material
indebtedness for money borrowed or purchase money indebtedness, which
will be an Assumed Liability, except in the ordinary course of
business;
(ii) permit or allow any of the material assets or properties of
the Business to be subject to any additional Encumbrance (other than
Permitted Liens and, with respect to personal property, Encumbrances
which individually or in the aggregate do not interfere materially with
the operation of the Business) or sell, transfer, lease or otherwise
dispose of any such assets or properties, except in the ordinary course
of business;
(iii) grant any increase in salaries or commissions payable or to
become payable to any Business Employee, except normal periodic
increases in salaries and commissions in accordance with
Louisiana-Pacific's existing compensation practices;
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(iv) make any capital expenditure or commitment therefor for
additions to property, equipment or facilities (other than road
maintenance and reforestation expenditures and commitments) in excess
of $100,000 individually or in the aggregate;
(v) engage in any transaction with Louisiana-Pacific or any of its
Affiliates other than in the ordinary course of business consistent
with past practices;
(vi) engage in any sale or purchase of real estate with
Louisiana-Pacific or any of its Affiliates or any other real estate
related transaction that would continue after the Closing Date;
(vii) enter into any contract with Louisiana-Pacific or its
Affiliates that would last after the Closing Date; or
(viii) agree, whether in writing or otherwise, to do any of the
foregoing.
6.3 AUTHORIZATIONS
(a) Each party, as promptly as practicable after the Agreement Date,
shall (i) deliver, or cause to be delivered, all notices and make, or cause to
be made, all such declarations, designations, registrations, filings and
submissions under all statutes, laws, regulations and Governmental Orders
applicable to it as may be required for it to consummate the sale of the
Purchased Assets and the assumption of the Assumed Liabilities and the other
transactions contemplated hereby and by the Ancillary Agreements in accordance
with the terms of this Agreement and the Ancillary Agreements; (ii) use
commercially reasonable efforts to obtain, or cause to be obtained, all
authorizations, approvals, orders, consents and waivers from all Persons
necessary to consummate the foregoing; and (iii) use commercially reasonable
efforts to take, or cause to be taken, all other actions necessary, proper or
advisable in order for it to fulfill its respective obligations hereunder and to
carry out the intentions of the parties expressed herein. The preceding sentence
notwithstanding, (x) Louisiana-Pacific, LPS Corporation and the Subsidiaries
shall have no obligation to take any action with respect to any contract,
agreement, arrangement, purchase order, commitment, permit, license, order,
approval or authorization other than those listed in Disclosure Schedule
Sections 4.13 and 4.14 (it being understood that the obtaining of any consents
necessary to transfer the Contracts and permits set forth on such Disclosure
Schedule Sections is not a condition to Closing), (y) neither party shall have
any obligation to waive any condition herein for its benefit or any performance
hereunder by the other party, and (z) no actions shall be required to be
undertaken with any Governmental Authority under or pursuant to the Lease.
(b) Each party shall use its commercially reasonable efforts to satisfy
the conditions to Closing applicable to it in Article VII and Article VIII as
soon as commercially practicable.
(c) Each party shall comply promptly with the notice and reporting
requirements of the HSR Act.
(d) Each party shall comply substantially with any additional requests
for information, including requests for production of documents and production
of witnesses for
25
interviews or depositions, by the Antitrust Division of the United States
Department of Justice, the United States Federal Trade Commission or the
antitrust or competition law authorities of any other jurisdiction (whether
U.S., foreign or multi-national) (the "Antitrust Authorities").
(e) Each party shall take all steps necessary other than divestiture of
assets or payment of money to prevent the entry in any Action brought by an
Antitrust Authority or any other Person of any Governmental Order which would
prohibit, make unlawful or delay the consummation of the transactions
contemplated by this Agreement and the Ancillary Agreements.
(f) Each party shall cooperate in good faith with the Antitrust
Authorities and undertake promptly any and all action required to complete
lawfully the transactions contemplated by this Agreement and the Ancillary
Agreements; provided, no party shall be required to comply with an Antitrust
Authority's request to divest assets or pay money.
(g) Each party shall have prepared the appropriate documentation for
filing under the HSR Act within five business days of the date hereof.
6.4 BOOKS AND RECORDS
(a) Buyer and Louisiana-Pacific shall, at the request of the other
party, make available to such other party from time to time on a reasonable
basis the Books and Records in their or the Subsidiaries' possession. Such Books
and Records shall be held by the party in possession thereof for seven years
after the Closing Date, and the other party shall have the right, at its
expense, to inspect and make copies of such Books and Records upon such party's
request; provided, however, that (i) all such access and copying shall be done
in such a manner so as not to unreasonably interfere with the normal conduct of
the operations of the party requested to provide access to such Books and
Records and (ii) the party requesting access to such Books and Records shall
treat the same and the contents thereof as confidential and not disclose such
Books and Records or the contents thereof to any Person except as required by
applicable statute, law, regulation or Governmental Order. Without limiting the
generality of the foregoing, the party in possession of Books and Records
responsive to information or document requests from a Tax Authority shall
provide such information and copies of all documents responsive to such requests
to the other party within the deadline set forth in such information or document
requests, but in no event later than two weeks from the date the party in
possession of such Books and Records shall receive such information or document
requests from the other party. In addition, after the Closing Date, at
Louisiana-Pacific's request, Simpson Investment shall cause Buyer to, and Buyer
shall, make available to Louisiana-Pacific and its Affiliates, employees,
representatives and agents those employees of Buyer, as may be reasonably
requested by Louisiana-Pacific in connection with any Action, including to
provide testimony, to be deposed, to act as witnesses and to assist counsel;
provided, however, that (x) such access to such employees shall not unreasonably
interfere with the normal conduct of the operations of Buyer, and (y)
Louisiana-Pacific shall reimburse Buyer for the out-of-pocket costs reasonably
incurred by Buyer in making such employees available to Louisiana-Pacific. Buyer
and Louisiana-Pacific shall not dispose of, and each party shall cause its
Affiliates not to dispose of, any Books and Records without first offering to
surrender such Books and Records to the other party.
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(b) Except as otherwise agreed between Buyer and Louisiana-Pacific: All
Privileged Documents shall be deemed to remain in the sole custody and control
of Louisiana-Pacific regardless of the location in which they may be found.
Louisiana-Pacific, LPS Corporation and the Subsidiaries have made a diligent
attempt to remove all such Privileged Documents from the premises of the
Business. In the event, after the Closing, Buyer discovers any such Privileged
Documents in its possession, except as otherwise provided by applicable statute,
law, regulation or Governmental Order, Buyer (i) shall hold them in strict
confidence; (ii) shall not make any copies of them; (iii) shall not provide such
Privileged Documents or copies thereof, or reveal the contents thereof, to any
of their employees or agents, or to any other Person, including any Governmental
Authority; and (iv) shall promptly return the same, and all copies thereof, to
Louisiana-Pacific, except as otherwise provided by applicable statute, law,
regulation or Governmental Order. In the event any request, demand or process is
received by Buyer seeking any Privileged Documents, Buyer shall provide prompt
notice thereof to Louisiana-Pacific, including therewith a copy of such request,
demand or process, to enable Louisiana-Pacific or its Affiliates to timely
assert any and all privileges against disclosure it may have with respect
thereto or to seek an appropriate protective order. Receipt of any such request,
demand or process shall not alter Buyer's obligations under this Agreement,
including the obligation to promptly provide Louisiana-Pacific with Privileged
Documents and all copies thereof. In no event shall Buyer take any action that
it knows might have the effect of waiving any claim of legal privilege with
respect to any Privileged Document which Louisiana-Pacific or its Affiliates may
have.
6.5 LOUISIANA-PACIFIC MARKS. Buyer acknowledges and agrees with
Louisiana-Pacific that Louisiana-Pacific has the absolute and exclusive
proprietary right to all names, marks, trade names, trademarks and corporate
symbols and logos used by Louisiana-Pacific or its Affiliates (including the
Subsidiaries), including those names, marks, trade names, trademarks and
corporate symbols and logos incorporating "L-P," "Louisiana-Pacific" and "Yes We
Can" (collectively, the "Louisiana-Pacific Marks"), all rights to which and the
goodwill represented thereby and pertaining thereto are being retained by
Louisiana-Pacific. Within 30 days after the Closing Date, Simpson Investment
shall cause Buyer to, and Buyer shall, and shall cause Buyer's Affiliates to
cease using any Louisiana-Pacific Mark and remove from the assets, properties,
stationary and literature of Buyer and Buyer's Affiliates any and all
Louisiana-Pacific Marks; provided, however, that Buyer or its Affiliates shall
be entitled to exhaust existing stocks of any office supplies located on the
Real Property at Closing and any inventories among the Purchased Assets existing
at Closing, so long as such inventories shall be sold within six months after
the Closing. Thereafter, Buyer shall not, and shall cause its Affiliates not to,
use any Louisiana-Pacific Mark in connection with the sale of any products or
services or otherwise in the conduct of their business. In the event that Buyer
breaches this Section 6.5, Louisiana-Pacific shall be entitled to specific
performance of this Section 6.5 and to injunctive relief against further
violations, as well as any other remedies at law or in equity available to
Louisiana-Pacific.
6.6 TITLE INSURANCE. Prior to the Closing Date, Louisiana-Pacific shall
reasonably cooperate with Buyer's efforts to obtain commitments and final
policies for standard CLTA owner's fee title insurance policies, with respect to
the Owned Real Property (the "Title Commitments") from First American Title
Insurance Company (the "Title Company").
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6.7 ACKNOWLEDGEMENTS BY BUYER. In order to induce Louisiana-Pacific to
enter into and perform this Agreement and the Ancillary Agreements, Buyer
acknowledges and agrees with Louisiana-Pacific as follows:
(a) To the knowledge of Buyer, Louisiana-Pacific's representations and
warranties made in Article IV are true and correct. To the extent any
representation or warranty of Louisiana-Pacific made herein is, to the knowledge
of Buyer acquired prior to the Closing, untrue or incorrect with respect to a
particular matter (other than if such knowledge is obtained by an update to the
Disclosure Schedule pursuant to Section 6.10), and Buyer closes under this
Agreement without promptly disclosing to Louisiana-Pacific in writing such
knowledge prior to the Closing Date, Buyer shall have no rights under this
Agreement or the Ancillary Agreements (unless the parties mutually agree upon an
amendment thereto) by reason of such untruth or inaccuracy with respect to such
matter; provided, that Louisiana-Pacific shall have the burden of proving such
knowledge of Buyer.
(b) Buyer will be relying solely on its own investigation as to the
Business and Louisiana-Pacific's representations and warranties set forth in
Article IV, and except as otherwise expressly agreed in the Environmental
Agreement, is assuming the risk that adverse physical, economic or other
conditions or circumstances (including soils and groundwater conditions) may not
have been revealed by such investigation.
(c) EXCEPT AS SET FORTH IN ARTICLE IV OF THIS AGREEMENT AND IN ARTICLE
II OF THE ENVIRONMENTAL AGREEMENT, NONE OF LOUISIANA-PACIFIC OR ANY OF ITS
AFFILIATES, EMPLOYEES, REPRESENTATIVES OR AGENTS MAKES OR HAS MADE ANY
REPRESENTATION OR WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY
INFORMATION, WRITTEN OR ORAL, FURNISHED TO OR PREPARED AT THE REQUEST OF BUYER
OR ANY OF ITS AFFILIATES, EMPLOYEES, REPRESENTATIVES OR AGENTS WITH RESPECT TO
LOUISIANA-PACIFIC, LPS CORPORATION AND THE SUBSIDIARIES OR ANY OF THEIR
BUSINESSES, ASSETS OR PROPERTIES.
(d) THE REPRESENTATIONS AND WARRANTIES SET FORTH IN ARTICLE IV OF THIS
AGREEMENT AND IN ARTICLE II OF THE ENVIRONMENTAL AGREEMENT CONSTITUTE THE SOLE
AND EXCLUSIVE REPRESENTATIONS AND WARRANTIES OF LOUISIANA-PACIFIC, LPS
CORPORATION AND THE SUBSIDIARIES TO BUYER IN CONNECTION WITH THE TRANSACTIONS
CONTEMPLATED HEREBY. THERE ARE NO REPRESENTATIONS, WARRANTIES, COVENANTS,
UNDERSTANDINGS OR AGREEMENTS, ORAL OR WRITTEN, IN RELATION THERETO BETWEEN THE
PARTIES OTHER THAN THOSE INCORPORATED HEREIN. EXCEPT FOR THE REPRESENTATIONS AND
WARRANTIES EXPRESSLY SET FORTH IN ARTICLE IV OF THIS AGREEMENT AND IN ARTICLE II
OF THE ENVIRONMENTAL AGREEMENT, BUYER AND SIMPSON INVESTMENT DISCLAIM RELIANCE
ON ANY REPRESENTATIONS OR WARRANTIES, EITHER EXPRESS OR IMPLIED, BY OR ON BEHALF
OF LOUISIANA-PACIFIC, LPS CORPORATION, THE SUBSIDIARIES OR THEIR AFFILIATES,
EMPLOYEES, REPRESENTATIVES OR AGENTS. BUYER ACKNOWLEDGES AND AGREES THAT, EXCEPT
AS PROVIDED IN ARTICLE II OF THE ENVIRONMENTAL AGREEMENT,
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THERE ARE NO REPRESENTATIONS OR WARRANTIES OF LOUISIANA-PACIFIC, LPS CORPORATION
OR THE SUBSIDIARIES WITH RESPECT TO THE CONDITION OF THE PROPERTIES OR ASSETS OF
LOUISIANA-PACIFIC, LPS CORPORATION OR THE SUBSIDIARIES (INCLUDING THE REAL
PROPERTY), COMPLIANCE BY LOUISIANA-PACIFIC, LPS CORPORATION OR THE SUBSIDIARIES
WITH ENVIRONMENTAL LAWS AND ENVIRONMENTAL PERMITS OR THE PRESENCE OR RELEASES OF
HAZARDOUS MATERIAL IN THE FIXTURES, SOILS, GROUNDWATER, SURFACE WATER OR AIR ON,
UNDER OR ABOUT OR EMANATING FROM ANY OF THE PROPERTIES OR ASSETS OF
LOUISIANA-PACIFIC, LPS CORPORATION OR THE SUBSIDIARIES (INCLUDING THE REAL
PROPERTY).
6.8 PUBLIC ANNOUNCEMENTS. Neither Buyer, Louisiana-Pacific nor the
representatives of either of them shall make any public announcement with
respect to this Agreement, the Ancillary Agreements or the transactions
contemplated hereby or thereby without the prior written consent of the other
party hereto. The foregoing notwithstanding, any such public announcement may be
made if required by applicable statute, law, regulation, Governmental Order or
securities exchange rule, provided that the party required to make such public
announcement shall confer with the other party concerning the timing and content
of such public announcement before the same is made and any description of Buyer
or its Affiliates shall be subject to prior notice to and consultation with
Buyer and shall, without the consent of Buyer, only be made to the extent that
Louisiana-Pacific reasonably believes required by law.
6.9 DISCLOSURE OF CONFIDENTIAL INFORMATION. Until the third anniversary
of the Closing Date, Louisiana-Pacific shall, and shall cause its Affiliates to,
hold in confidence, and not, without the prior written approval of Buyer, use
for their own benefit or the benefit of any party other than Buyer or disclose
to any Person other than Buyer (other than as required by applicable statute,
law, regulation or Governmental Order) any confidential information relating to
the Business, except such information as was publicly available prior to the
Closing Date, and except for information necessary for Louisiana-Pacific to
conduct its business and/or exercise its rights under this Agreement.
6.10 RIGHT TO UPDATE SCHEDULE. From time to time prior to the Closing,
on its own initiative or after receipt of a written notice from Buyer pursuant
to Section 6.7(a), Louisiana-Pacific shall update or amend its disclosure of any
matter of which it has knowledge that is required to be set forth in any
Exhibit, Schedule or the Disclosure Schedule. If Louisiana-Pacific believes in
good faith that the information in any such update or amendment discloses any
fact or circumstance that would have a Material Adverse Effect, then
Louisiana-Pacific shall so notify Buyer in writing within five business days
after the date on which Louisiana-Pacific notifies Buyer of the proposed update
or amendment. If Louisiana-Pacific does so notify Buyer, within such five
business day period, the parties shall attempt in good faith to negotiate an
equitable resolution, by adjustment of the Purchase Price or otherwise. If the
parties are unable to reach such a resolution within ten business days of
Buyer's receipt of such notice, Buyer may terminate this Agreement by written
notice to Louisiana-Pacific within five business days thereafter subject to
Section 12.4. Except as the parties may otherwise expressly agree in writing
effective as of the Closing, Buyer shall be deemed to have waived its right to
make any claim for indemnification under this Agreement on the basis of any
matter or matters
29
that Louisiana-Pacific asserts to constitute a Material Adverse Effect pursuant
to the second sentence of this Section 6.10.
6.11 ASSIGNMENT OF INSURANCE PROCEEDS. The Humboldt-Trinity-Samoa
Assets shall include the right to receive any casualty insurance proceeds
related thereto and Louisiana-Pacific shall assign to Buyer the proceeds, if
any, of all casualty insurance, including any business interruption insurance,
payable by reason of fire, flood, riot, theft, Act of God or other casualty,
with respect to the period beginning on the Agreement Date and ending on the
Closing Date. Such right to receive casualty insurance proceeds shall be Buyer's
sole right with respect to any damaged assets, other than pursuant to Section
7.5.
6.12 JOINT AND SEVERAL OBLIGATIONS. Simpson Investment shall be jointly
and severally liable for all obligations of Buyer hereunder or under any
Ancillary Agreement.
6.13 NO SHOP. Louisiana-Pacific shall not (and shall not cause or
permit any of Louisiana-Pacific's Affiliates to) (1) solicit, initiate, or
encourage the submission of any proposal or offer from any Person to acquire the
Business, or any portion of the Purchased Assets (other than in the ordinary
course of business or as otherwise allowed by this Agreement), or (2)
participate in any discussions or negotiations regarding, furnish any
information with respect to, assist or participate in, or facilitate in any
other manner, any effort or attempt by any Person to acquire or seek to acquire
the Business or any portion of the Purchased Assets (other than in the ordinary
course of business or as otherwise allowed by this Agreement). Louisiana-Pacific
will notify Buyer and Simpson Investment promptly if any Person makes any
proposal or offer with respect to any of the foregoing. Notwithstanding any of
the foregoing, this Section 6.13 shall not be deemed to cover any inquiries,
proposals, offers, contacts, discussions or matters with respect to
Louisiana-Pacific as a whole (relating to mergers, acquisitions, or similar
matters).
ARTICLE VII
CONDITIONS TO THE OBLIGATIONS OF BUYER
The obligations of the Buyer to effect the transactions contemplated
hereby shall be subject to the fulfillment or satisfaction, on or before the
Closing Date, of each of the following conditions:
7.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. Subject to Section
12.4, all of the representations and warranties of Louisiana-Pacific, LPS
Corporation, Redwood, LLC and Samoa, Inc. contained herein shall be true and
correct as of the Agreement Date and as of the Closing with the same effect as
though made at and as of the Closing Date, except, in either case, (a) that
representations and warranties made as of, or in respect of, only a specified
date or period shall be true and correct in respect of, or as of, such date or
period, and (b) to the extent that any failure of such representations and
warranties to be true and correct as aforesaid when taken in the aggregate would
not have a Material Adverse Effect, or (c) to the extent there has been an
Allowed Pre-Signing Change or an Allowed Pre-Closing Change.
7.2 PERFORMANCE. Louisiana-Pacific, LPS Corporation, Redwood, LLC and
Samoa, Inc. shall have performed and complied in all material respects with all
agreements and obligations required by this Agreement to be performed or
complied with by it on or prior to the
30
Closing Date, except where the failure to so perform or comply when taken in the
aggregate would not have a Material Adverse Effect. Without limiting the
generality of the foregoing, Louisiana-Pacific shall have tendered to Buyer at
the Closing each of the deliverables specified in Section 3.2.
7.3 TERMINATION OF HSR ACT WAITING PERIOD. Any waiting period (and any
extension thereof) under the HSR Act applicable to the transactions contemplated
hereby shall have expired or shall have been terminated.
7.4 ABSENCE OF GOVERNMENTAL ORDERS. No temporary or permanent
Governmental Order shall be in effect that prohibits or makes unlawful
consummation of the transactions contemplated hereby.
7.5 TIMBER CASUALTY. If, prior to Closing, any loss or damage resulting
in substantial harm to the timber on 25% or more of the acreage comprising the
Timber Real Property occurs due to fire, flood, riot, theft, act of God or other
casualty, Buyer may elect to terminate this Agreement within 5 business days
after Buyer learns of the occurrence of such casualty loss. If, prior to
Closing, any loss or damage resulting in substantial harm to the timber on less
than 25% of the acreage comprising the Timber Real Property occurs due to fire,
flood, riot, theft, act of God or other casualty, Buyer may elect not to
purchase, and shall not have any obligation to pay for, such damaged timber and
the Purchase Price shall be reduced by an amount equal to the fair market value
of such damaged timber immediately prior to such casualty loss.
7.6 LEGAL OPINION. Louisiana-Pacific shall have delivered the
written legal opinion of Orrick, Herrington & Sutcliffe LLP or of the in-house
legal counsel of Louisiana-Pacific, dated as of the Closing Date, in the form of
Exhibit 7.6.
7.7 JOINT CONDITIONS. Each condition specified in aRTICLE vii of the
Sansome Purchase Agreement, all of which are incorporated herein by this
reference, shall have been satisfied or waived by Sansome.
7.8 NOTE. Unless Louisiana-Pacific elects to sell the Note Assets for
cash pursuant to subsection 2.7(F) or elects Note Arrangement #2, the form of
Note and related documentation pursuant to Section 2.8 shall be reasonably
satisfactory to Buyer.
7.9 TITLE. Buyer shall have received from the Title Company a standard
owner's title policy with respect to the Owned Real Property, subject to
Permitted Liens and subject to Encumbrances which individually or in the
aggregate are not reasonably likely to result in a Material Adverse Effect;
provided that any requirements of Buyer with respect to extended coverages,
surveys, title endorsements or similar matters are not required as a condition
to Closing.
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ARTICLE VIII
CONDITIONS TO THE OBLIGATIONS OF LOUISIANA-PACIFIC
The obligations of Louisiana-Pacific, LPS Corporation, Redwood, LLC and
Samoa, Inc. to effect the transactions contemplated hereby shall be subject to
the fulfillment or satisfaction, on or before the Closing Date, of each of the
following conditions:
8.1 ACCURACY OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Buyer and Simpson Investment contained herein shall be true and
correct in all material respects at and as of the Closing Date with the same
effect as though made at and as of the Closing Date.
8.2 PERFORMANCE. Buyer and Simpson Investment shall have performed and
complied in all material respects with all agreements and obligations required
by this Agreement to be performed or complied with by it on or prior to the
Closing Date. Without limiting the generality of the foregoing, Buyer and
Simpson Investment shall have tendered to Louisiana-Pacific at the Closing each
of the deliverables specified in Section 3.3.
8.3 TERMINATION OF HSR ACT WAITING PERIOD. Any waiting period (and any
extension thereof) under the HSR Act applicable to the transactions contemplated
hereby shall have expired or shall have been terminated.
8.4 ABSENCE OF GOVERNMENTAL ORDERS. No temporary or permanent
Governmental Order shall be in effect that prohibits or makes unlawful
consummation of the transactions contemplated hereby.
8.5 LEGAL OPINION. Simpson Investment shall cause Buyer to, and Buyer
shall, have delivered the written legal opinion of Lane Powell Spears Lubersky
or the in-house legal counsel for Buyer, dated as of the Closing Date, in the
form of Exhibit 8.5.
8.6 JOINT CONDITIONS. Each condition specified in aRTICLE viii of the
Sansome Purchase Agreement, all of which are incorporated herein by this
reference, shall have been satisfied or waived by Louisiana-Pacific.
8.7 NOTE. The form of Note and related documentation pursuant to Note
Arrangement #1 shall be reasonably satisfactory to Louisiana-Pacific.
8.8 INDEMNITY OBLIGATION. Louisiana-Pacific, LPS Corporation and the
Subsidiaries shall have determined that they do not have an aggregate indemnity
obligation under this Agreement, the Ancillary Agreements and the Sansome
Purchase Agreement and its Ancillary Agreements, in excess of $10,000,000.
8.9 INSTALLMENT SALE TREATMENT. Louisiana-Pacific shall have determined
in the exercise of its reasonable judgment that the sale of the Note Assets will
qualify for tax deferred installment treatment as provided by Section 453 of the
Code and would not be subject to the provisions of Section 453A of the Code.
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ARTICLE IX
INDEMNIFICATION
9.1 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Louisiana-Pacific, LPS Corporation, Redwood, LLC and Samoa Inc. in
Article IV and of Buyer and Simpson Investment in Article V (and as restated in
the Officer's Certificates delivered pursuant to subsections 3.2(f) or 3.3(f)
shall survive for a period of two years from the Closing. If written notice of a
claim has been given prior to the expiration of the applicable representations
and warranties by a party in whose favor such representations and warranties
have been made to the party that made such representations and warranties, then
the relevant representations and warranties shall survive as to such claim,
until the claim has been finally resolved.
9.2 INDEMNIFICATION BY LOUISIANA-PACIFIC. Except as otherwise limited
by this Agreement, so long as Buyer shall have validly tendered to
Louisiana-Pacific at the Closing each of the deliverables specified in Section
3.3 and the Closing has occurred, Louisiana-Pacific, LPS Corporation, Redwood,
LLC and Samoa, Inc. shall indemnify, defend and hold harmless Buyer, Simpson
Investment and their Affiliates, shareholders, officers, directors, employees,
subsidiaries, successors and assigns (collectively, the "Buyer Indemnified
Parties") from and against, and pay or reimburse the Buyer Indemnified Parties
for, any and all losses, damages, claims, costs and expenses, interest, awards,
judgments and penalties (including reasonable legal costs and expenses) actually
suffered or incurred by them (hereinafter a "Buyer Loss") arising out of or
resulting from:
(a) the inaccuracy of any representation or warranty of
Louisiana-Pacific, LPS Corporation, Redwood, LLC or Samoa, Inc. set forth in
Article V; provided that solely for purposes of this subsection 9.2(a), the
accuracy of such representations and warranties shall be determined without
giving effect to any limitations that are based on a Material Adverse Effect;
(b) any other breach or violation of this Agreement by
Louisiana-Pacific; and
(c) any Retained Liability; provided, however, that for purposes of
this subsection 9.2(c), Retained Liabilities shall not include any liabilities
or obligations of Louisiana-Pacific, LPS Corporation, Redwood, LLC or Samoa,
Inc. arising under or pursuant to Environmental Laws or Environmental Permits.
Any such payment shall be made in cash and treated by the parties hereto as an
adjustment of the Purchase Price.
9.3 INDEMNIFICATION BY BUYER. Except as otherwise limited by this
Agreement, Buyer, Simpson Investment and Simpson Samoa Company shall, and shall
cause their Affiliates to, indemnify, defend and hold harmless Louisiana-Pacific
and its Affiliates, shareholders, officers, directors, employees, subsidiaries,
successors and assigns (collectively, the "Louisiana-Pacific Indemnified
Parties") from and against, and pay or reimburse the Louisiana-Pacific
Indemnified Parties for, any and all losses, damages, claims, costs and
expenses, interest, awards, judgments and penalties (including reasonable legal
costs and
33
expenses) actually suffered or incurred by them (hereinafter a
"Louisiana-Pacific Loss") arising out of or resulting from:
(a) the inaccuracy of any representation or warranty of Buyer and
Simpson Investment set forth in Article V or as restated in the Officer's
Certificate delivered pursuant to subsection 3.2(f); provided that solely for
purposes of this subsection 9.3(a), the accuracy of such representations and
warranties shall be determined (i) without giving effect to any limitations that
are based on a Material Adverse Effect or (ii) without regard to any disclosures
by Buyer to Louisiana-Pacific pursuant to subsection 6.7(a) of this Agreement or
to any disclosures by Louisiana-Pacific to Buyer pursuant to Section 6.10 of
this Agreement (other than as to matters for which Buyer shall have been deemed
to have waived its right to indemnification pursuant to the last sentence of
Section 6.10 and other than matters that constitute Assumed Liabilities pursuant
to subsection 2.5(f) of this Agreement;
(b) any other breach or violation of this Agreement by Buyer or Simpson
Investment;
(c) any Assumed Liability; and
(d) Buyer's or Simpson Investment's or Simpson Samoa Company's hiring
practices and decisions relating to Business Employees followed or effected
before, on or after the Closing Date (including its fitness and drug/alcohol
screening program) all only to the extent such hiring practices are in violation
of applicable laws or the terms of this Agreement.
Any such payment shall be made in cash and treated by the parties hereto as an
adjustment of the Purchase Price.
9.4 GENERAL INDEMNIFICATION PROVISIONS
(a) For the purposes of this Section 9.4 and Section 9.5: the term
"Indemnitee" shall refer to the Person or Persons indemnified, or entitled, or
claiming to be entitled, to be indemnified, pursuant to the provisions of
Section 9.2 or 9.3, as the case may be; the term "Indemnitor" shall refer to the
Person having the obligation to indemnify pursuant to such provisions; and
"Losses" shall refer to Louisiana-Pacific Losses or Buyer Losses, as the case
may be.
(b) Within a reasonable time following the determination thereof, an
Indemnitee shall give the Indemnitor notice of any matter which an Indemnitee
has determined has given or could give rise to a right of indemnification under
this Agreement (regardless of whether a claim for indemnification otherwise
would be prohibited by subsection 9.5(a)), stating the amount of the Loss, if
known, and method of computation thereof, all with reasonable particularity and
containing a reference to the provisions of this Agreement in respect of which
such right of indemnification is claimed or arises. The obligations and
Liabilities of an Indemnitor under this Article IX with respect to Losses
arising from claims of any third Person that are subject to the indemnification
provided for in this Article IX ("Third Party Claims") shall be governed by and
contingent upon the following additional terms and conditions: If an Indemnitee
shall receive notice of any Third Party Claim, the Indemnitee shall promptly
give the Indemnitor notice of such Third Party Claim. Such notice shall be given
and the Indemnitor
34
shall have the right to defend such Third Party Claim (as set forth
below) even if indemnification of the Indemnitee with respect thereto otherwise
would be prohibited by subsection 9.5(a). If the Indemnitor acknowledges in
writing its obligation to indemnify the Indemnitee hereunder against any Losses
that may result from such Third Party Claims (subject to the limitations set
forth herein), then the Indemnitor shall be entitled, at its option, to assume
and control the defense of such Third Party Claim at its expense and through
counsel of its reasonable choice if it gives notice to the Indemnitee within 60
calendar days of the receipt of notice of such Third Party Claim from the
Indemnitee of its intention to do so. In the event the Indemnitor exercises its
right to undertake the defense against any such Third Party Claim as provided
above, the Indemnitee shall cooperate with the Indemnitor in such defense and
make available to the Indemnitor, at the Indemnitor's expense, all witnesses,
pertinent records, materials and information in its possession or under its
control relating thereto as is reasonably required by the Indemnitor. Similarly,
in the event the Indemnitee is, directly or indirectly, conducting the defense
against any such Third Party Claim, the Indemnitor shall cooperate with the
Indemnitee in such defense and make available to it all such witnesses, records,
materials and information in its possession or under its control relating
thereto as is reasonably required by the Indemnitee. No such Third Party Claim,
except the settlement thereof which involves the payment of money only (by a
party or parties other than the Indemnitee) and for which the Indemnitee is
released by the third party claimant and is totally indemnified by the
Indemnitor, may be settled by the Indemnitor without the written consent of the
Indemnitee. No Third Party Claim that is being defended in good faith by the
Indemnitor shall be settled by the Indemnitee without the written consent of the
Indemnitor.
9.5 LIMITATIONS ON INDEMNIFICATION
(a) No claim or claims may be made against an Indemnitor for
indemnification pursuant to either subsection 9.2(a) or subsection 9.3(a), as
the case may be, unless the Losses of the Indemnitees with respect to such
clauses shall exceed $1,000,000 in the aggregate (the "Deductible"), in which
case the Indemnitor shall be obligated to the Indemnitee only for the amount of
the Loss in excess of the Deductible.
(b) In addition to the provisions and limitations as provided in (i)
Section 9.1 with respect to the period of survival of representations and
warranties and (ii) subsection 9.5(a) with respect to dollar amounts of Losses
for which indemnification for breaches of representations and warranties is not
available, no Indemnitor shall be liable for any Louisiana-Pacific Loss or Buyer
Loss, as the case may be, to the extent such Louisiana-Pacific Losses (in the
aggregate) or Buyer Losses (in the aggregate) relate to breaches of
representations and warranties contained in Article IV or Aarticle V, as the
case may be, and exceed an amount equal to $25,000,000 in excess of the
Deductible (in addition to amounts available separately for environmental
indemnification under the Environmental Agreement).
(c) In addition, the Liability of any Indemnitor with respect to any
Losses shall be determined on a basis that is net of the amount of any such
Losses covered by insurance. Without limiting the generality of the foregoing,
any claim made by Buyer arising out of or resulting from an alleged breach of
any representation or warranty of Louisiana-Pacific, LPS Corporation, Redwood,
LLC or Samoa, Inc. set forth in Section 4.8 shall be tendered first to the Title
Company for recovery of any Buyer Losses.
35
(d) Notwithstanding any provision of this Agreement to the contrary,
all claims for indemnification hereunder or otherwise by Buyer with respect to
Buyer Losses arising out of or resulting from (i) the application of, or
compliance with, any Environmental Law or Environmental Permit or (ii) the
presence or Releases of any Hazardous Material in the fixtures, soils,
groundwater, surface water or air, or on under or about, or emanating from, any
of the properties or assets of Louisiana-Pacific, LPS Corporation or the
Subsidiaries, shall be exclusively governed by the terms of the Environmental
Agreement.
9.6 WAIVER AND RELEASE. Except as provided in this Agreement or in the
Environmental Agreement, Buyer, on behalf of itself and any Buyer Indemnified
Party, hereby forever waives, relieves, releases and discharges the
Louisiana-Pacific Indemnified Parties and their successors and assigns from any
and all rights, Liabilities, Actions (including future Actions) and Buyer
Losses, whether known or unknown at the Closing Date, which any Buyer
Indemnified Party has or incurs, or may in the future have or incur, arising out
of or related to (a) the physical, environmental, economic or legal condition of
the properties and assets currently or formerly used in the Business or
operated, owned, leased, controlled, possessed, occupied or maintained by LPS
Corporation, the Subsidiaries or Louisiana-Pacific and related to the Business
or (b) any Assumed Liability, provided, that such waiver and release shall not
apply with respect to acts or omissions of the Louisiana-Pacific Indemnified
Parties after the Closing Date.
ARTICLE X
TAX MATTERS
10.1 ALLOCATION OF PURCHASE PRICE. For income tax purposes, the parties
shall treat the prepaid rent for the assets subject to the Lease as an amount
paid for the purchase of such assets. Such amount together with the Purchase
Price shall be allocated among the Humboldt-Trinity-Samoa Assets in accordance
with Schedule 10.1. For income tax purposes, the parties shall treat the Note as
the consideration for the Note Assets. The parties shall complete IRS Form 8594
consistent with the foregoing allocations and shall furnish each other with a
copy of such form prepared in draft form within 60 days prior to the filing due
date for such form. Within 60 days after the Closing Date, Redwood, LLC shall
submit to Buyer detailed allocation schedules that are in all respects
consistent with Schedule 10.1. No party shall file any Tax Return or take a
position with any Governmental Body that is inconsistent with the foregoing
allocations, unless Buyer has received an opinion of counsel (copy to
Louisiana-Pacific) concluding that there is no reasonable basis for such
position.
10.2 CERTAIN TAXES.
(a) Except to the extent reflected in the adjustment to the Purchase
Price pursuant to subsection 2.7(d), all real property Taxes, personal property
Taxes and similar ad valorem obligations that are due or become due without
acceleration with respect to the Purchased Assets or the Business for tax
periods within which the Closing Date occurs (collectively, the "Apportioned
Obligations") shall be apportioned between Redwood, LLC, Samoa, Inc. and Buyer
as of the Closing Date based on the number of days in any such period falling on
or before the Closing Date, on the one hand, and after the Closing Date, on the
other hand (it being understood that Buyer is responsible for the portion of
each such Apportioned Obligation attributable to the number of days after the
Closing Date in the relevant tax period,
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which is July 1 through June 30). Each party shall cooperate in assuring that
Apportioned Obligations that are due and payable on or prior to the Closing Date
are billed directly to and paid by Redwood, LLC and Samoa, Inc., and that
Apportioned Obligations that are due and payable after the Closing Date shall be
billed directly to and paid by Buyer. In the event that any refund, rebate or
similar payment is received by Buyer, Samoa, Inc. or Redwood, LLC for any real
property Taxes, personal property Taxes or similar ad valorem obligations that
are Apportioned Obligations and which payment pertains to the tax period in
which the Closing Date falls, such payment shall be apportioned between Redwood,
LLC, Samoa, Inc. and Buyer on the basis of each party's respective ownership of
the taxed asset during the applicable tax period. In the event that it is
determined subsequent to the Closing Date that additional real property Taxes,
personal property Taxes or similar ad valorem obligations that are Apportioned
Obligations are required to be paid for the applicable tax period in which the
Closing Date falls, such additional taxes will be apportioned between Redwood,
LLC, Samoa, Inc. and Buyer on the basis of each party's respective ownership of
the taxed asset during the applicable tax period.
(b) Louisiana-Pacific shall pay and indemnify, defend, protect and hold
harmless Buyer on an after-Tax basis from and against any Taxes imposed upon
Buyer or on the Business, the Samoa Leased Assets or the Purchased Assets as a
result of any inaccuracy in the representation contained in Section 4.12 or
Buyer being a transferee of the Business, the Purchased Assets or the Samoa
Leased Assets and only to the extent that such Taxes are attributable to a
period on or before or simultaneous with the Closing (other than Taxes expressly
borne by Buyer pursuant to Section 13.1).
(c) Notwithstanding any other provision contained in this Agreement
(including Section 9.5), any obligation arising out of this Section 10.2 shall
survive until expiration of the applicable statute of limitations for any such
Tax obligations.
10.3 BUYER'S COOPERATION IN A SECTION 1031 EXCHANGE. If so requested by
Louisiana-Pacific or Redwood, LLC, Buyer agrees to cooperate with
Louisiana-Pacific and Redwood, LLC in any manner reasonably necessary to
complete an exchange under Section 1031 of the Code and any state and local
counterpart provision with respect to the Purchased Assets at no additional cost
or liability to Buyer; provided, that Louisiana-Pacific or Redwood, LLC also
elects to have the Purchase Price paid in cash pursuant to Section 2.7(f) and
reimburse Buyer for any placement fee obligation that it has previously incurred
or paid for a Note Arrangement, in each case, to the extent the Note Arrangement
is no longer necessary.
ARTICLE XI
EMPLOYEES AND EMPLOYEE BENEFIT PLANS
11.1 EMPLOYMENT. As of the Agreement Date, Louisiana-Pacific shall
provide Buyer reasonable access to the Business and the Business Employees in
order for Buyer to evaluate its hiring needs and inform the Business Employees
of its hiring practices, provided that (i) Buyer shall not unreasonably
interfere with Louisiana-Pacific's operation of the business, (ii) all written
communications to Business Employees by Buyer shall be subject to
Louisiana-Pacific's advance approval, (iii) Louisiana-Pacific shall have the
right to designate a representative(s) to be present at any meeting between
Buyer and any Business Employee and (iv) Buyer shall comply with all applicable
employment and other laws in connection with
37
interviews, discussions and hiring practices. During the period between the
Agreement Date and Closing, Buyer shall accept applications from any and all
Business Employees who choose to apply, and shall ensure that any such Business
Employee whose application is considered shall have consented in writing to
Buyer's communication to Louisiana-Pacific of the results of any drug/alcohol
screening administered by Buyer as part of the application process. Buyer shall
evaluate such applications, and shall make offers of employment to those
Business Employees whose application is acceptable to Buyer and for whom Buyer
has an employment need. Each such offer shall be at a base rate of compensation
not less than 85% of the base rate of compensation paid to each such Business
Employee by Louisiana-Pacific as reflected on Disclosure Schedule Section 4.11,
and shall be conditioned on the Business Employee satisfying Buyer's
pre-employment requirements for fitness and drug/alcohol screening. Buyer shall
retract offers made to Business Employees who do not satisfy Buyer's
pre-employment requirements, without notifying Louisiana-Pacific of the
retraction or the reason for such retraction, unless such reason is the Business
Employee's failure to pass Buyer's drug/alcohol screening. Ten days prior to
Closing, Buyer shall notify Louisiana-Pacific of the names of each Business
Employee to whom a final offer of employment is made (the "Designated
Employees"). Each Designated Employee who accepts Buyer's offer of employment
and becomes an employee of Buyer at Closing shall be referred to herein as a
"Hired Employee."
11.2 SEVERANCE REIMBURSEMENT. In connection with this transaction,
Louisiana-Pacific shall amend its Facility Closure Policy (or, at its option,
shall establish a new facility closure or similar policy) to extend application
of its terms to Hired Employees who are terminated by Buyer within 120 days
after Closing for reasons other than good cause. Buyer shall reimburse
Louisiana-Pacific for 50% of any sums, within 15 days of notification to Buyer,
paid by Louisiana-Pacific greater than $250,000 and less than $1,350,000 for
severance payments or benefit continuation for retiree health, retiree life and
Accidental Death and Dismemberment benefits ("Benefit Continuation") under
Louisiana-Pacific's Facility Closure Policy to Business Employees arising as a
result of the termination of such Business Employees' employment with
Louisiana-Pacific in connection with the transaction contemplated by this
Agreement, or with Buyer during the 120-day period following the Closing; and
100% of any sums paid by Louisiana-Pacific in excess of $1,350,000 for severance
payments or Benefit Continuation under Louisiana-Pacific's Facility Closure
Policy to Business Employees arising as a result of the termination of such
Business Employees' employment with Louisiana-Pacific in connection with the
transaction contemplated by this Agreement, or with Buyer during the 120-day
period following the Closing; provided, that the total maximum amount that Buyer
is obligated under this Agreement to reimburse Louisiana-Pacific for sums paid
by Louisiana-Pacific for retiree health benefit continuation is $65,000 in the
aggregate.
11.3 SERVICE RECOGNITION. For each Hired Employee, Buyer shall
recognize the years of service such Hired Employee had with Louisiana-Pacific,
as disclosed in Disclosure Schedule Section 4.11 ("Louisiana-Pacific Service"),
for certain specific purposes only, as follows: a) for accrual of vacation and
sick leave under the terms of Buyer's vacation and sick leave policies, if any,
b) for eligibility and vesting purposes only (but not for benefit accrual) under
Buyer's qualified pension and 401(k) plans, c) for enrollment and participation
in Buyer's health and welfare plans other than Buyer's retiree medical, retiree
life insurance and severance plans, and d) after 120 days following Closing for
eligibility under Buyer's severance plan. The service recognition detailed
herein shall continue in effect as long as a Hired Employee is
38
employed by Buyer in a salaried or non-union hourly position. Any Hired Employee
hired by Buyer for a union position or transferred by Buyer into a union
position shall have Louisiana-Pacific Service recognized by Buyer for the
purposes detailed herein only if such recognition is bargained with and accepted
by the applicable union.
11.3 ACCRUED AND UNUSED VACATION. At Closing, or as soon as practical
thereafter, Louisiana-Pacific shall cash out each Hired Employee's accrued and
unused vacation by paying to each a sum equal to the liability of
Louisiana-Pacific for the days or hours of accrued and unused vacation of such
Hired Employee.
11.5 CROSS-INDEMNITY FOR CERTAIN WORKERS' COMPENSATION CLAIMS.
Notwithstanding anything to the contrary in this Agreement, except for breaches
of representations and warranties under Article IV, the rights and obligations
of Louisiana-Pacific and Buyer, as between each other, with respect to claims by
Hired Employees based on occupational injury, illness or death, before and/or
after the Closing Date ("Workers' Compensation Claims") shall be governed by
this Section 11.5 and not the general indemnification provisions of Article IX.
As between themselves, without conferring any benefit on third persons: (i)
Louisiana-Pacific shall indemnify, defend, and hold Buyer harmless against any
Workers' Compensation Claims that are incurred by Hired Employees prior to the
Closing Date or that relate to injuries incurred by Hired Employees prior to the
Closing Date; (ii) Buyer shall indemnify, defend, and hold Louisiana-Pacific
harmless against any Workers' Compensation Claims that are incurred by Hired
Employees on or after the Closing Date or that relate to injuries incurred by
Hired Employees on or after the Closing Date; and (iii) notwithstanding clauses
(i) and (ii): with respect to any Workers' Compensation Claims that arise out of
continuing work place exposures both before and after the Closing Date (a) the
respective liabilities of Louisiana-Pacific and Buyer shall be apportioned in
accordance with the clear and convincing evidence that such Workers'
Compensation Claim was caused before and after Closing Date respectively, and
(b) to the extent that there is not clear and convincing evidence to apportion
the respective liabilities of Louisiana-Pacific and Buyer to periods before and
after the Closing Date in accordance with clause (a): (I) Louisiana-Pacific
shall indemnify, defend and hold Buyer harmless against Louisiana-Pacific's
Formula Percentage (as defined below) of such Workers' Compensation claims and
(II) Buyer shall indemnify, defend and hold Louisiana-Pacific harmless against
Buyer's Formula Percentage of such Workers' Compensation Claims. As used in this
Section 11.5, "Formula Percentage" means a percentage calculated for any
Workers' Compensation Claim by dividing the number of years (rounded to the
nearest whole year) of employment in the "relevant activity" (as hereinafter
defined) by the claimant with the indemnitor under this Section 11.5 by the
total number of years (rounded to the nearest whole year) of employment in the
"relevant activity" by the claimant with both Buyer and Louisiana-Pacific. As
used in this Section 11.5, the term "relevant activity" means the activity that
caused the occupational injury, illness or death upon which the Workers'
Compensation Claim is based. Louisiana-Pacific and Buyer hereby mutually waive
as to each other all rights of subrogation based on payments to workers
hereunder and all rights of employer immunity or limitation of liability based
on federal, state or local laws.
11.6 VESTING IN LOUISIANA-PACIFIC'S ESOT. Louisiana-Pacific shall cause
its Employee Stock Ownership Trust to recognize each Hired Employee to be fully
vested in his or her account balance in such Plan as of Closing.
39
11.7 WARN ACT. Buyer shall be responsible for all Liabilities, if any,
under the Worker Adjustment and Retraining Notification Act (the "WARN Act"),
including any obligations to provide notices, payments or benefits required
under the WARN Act and any Liabilities for penalties resulting from violation of
any requirement of the WARN Act, which arise in connection with the transactions
contemplated by this Agreement as a result of the actions or inactions of Buyer
after the Closing Date. Louisiana-Pacific shall be responsible for all
Liabilities, if any, under the WARN Act, including any obligations to provide
notices, payments or benefits required under the WARN Act and any Liabilities
for penalties resulting from violation of any requirement of the WARN Act which
arise in connection with the transactions contemplated by this Agreement as a
result of the actions or inactions of Louisiana-Pacific on or prior to the
Closing Date.
11.8 EMPLOYEE TRANSITION ADMINISTRATION. Within 21 days following the
date of this Agreement, Louisiana-Pacific shall provide to Buyer all employee
data reasonably necessary to allow Buyer to establish payroll and other employee
benefit systems in advance of its hiring of any Business Employees pursuant to
this Agreement. In the event that the Closing occurs sooner than 60 days from
the Agreement Date, and Buyer has not established such employee benefit systems,
Louisiana-Pacific shall cooperate with Buyer to provide transition payroll
services to Hired Employees for such reasonable time (not to exceed the number
of days by which the Closing has occurred sooner than 60 days from the Agreement
Date) as it takes Buyer to finalize such arrangements for which Buyer shall
reimburse Louisiana-Pacific, within 15 days after notification to Buyer, the
reasonable cost of such transition services. In addition, Louisiana-Pacific and
Simpson Investment shall cause Buyer to, and Buyer shall, each make its
appropriate employees and reasonable information available to the other at such
reasonable times prior to and after the Closing Date as may be necessary for the
proper administration by the other of any and all matters relating to employee
benefits and worker's compensation claims affecting their employees.
ARTICLE XII
TERMINATION
12.1 TERMINATION. This Agreement may be terminated at any time prior to
the Closing:
(a) by the mutual written consent of Buyer and Louisiana-Pacific; or
(b) by either Buyer or Louisiana-Pacific, if the Closing shall not have
occurred by July 15, 1998 (the "Deadline Date") (provided that the Deadline Date
shall be extended to August 15, 1998 if either of the conditions set forth in
Sections 7.3 or 7.4 shall not have been satisfied by July 15, 1998, or if
Louisiana-Pacific makes the election under Section 2.9); provided, however, that
the right to terminate this Agreement pursuant to this subsection shall not be
available to any party or parties whose failure to fulfill any obligation under
this Agreement shall have been the cause of, or shall have resulted in, the
failure of the Closing to occur prior to such date; or
(c) by Buyer, pursuant to Sections 7.5 or 6.10, or upon the breach of
any of the representations and warranties of Louisiana-Pacific contained herein
or in the Environmental
40
Agreement or the failure by Louisiana-Pacific to perform and comply with any of
the agreements and obligations required by this Agreement or the Environmental
Agreement to be performed or complied with by Louisiana-Pacific, provided that
such breach or failure is reasonably likely to result in a Material Adverse
Effect and is not cured within 20 days of Louisiana-Pacific's receipt of a
written notice from Buyer that such a breach or failure has occurred; or
(d) by Louisiana-Pacific, upon the breach in any material respect of
any of the representations and warranties of Buyer contained herein or upon the
breach in any material respect of any of the representations of Sansome
contained in the Sansome Purchase Agreement, or the failure by Buyer to perform
and comply in any material respect with any of the agreements and obligations
required by this Agreement or the Environmental Agreement to be performed or
complied with by Buyer, or the failure of Sansome to perform and comply in any
material respect with any of the agreements and obligations required by the
Sansome Purchase Agreement to be performed or complied with by Sansome, provided
that any such breach or failure is not cured within 20 days of Buyer's or
Sansome's, as the case may be, receipt of a written notice from
Louisiana-Pacific that such a breach or failure has occurred.
12.2 WRITTEN NOTE. In order to terminate this Agreement pursuant to
Section 12.1, the party so acting shall give written notice of such termination
to the other party, specifying the grounds thereof.
12.3 EFFECYT OF TERMINATION. In the event of the termination of this
Agreement in accordance with Section 12.1, this Agreement (other than Sections
2.10, 6.8 and 13.1, which shall survive the termination hereof) shall become
void and have no effect, with no liability on the part of any party or its
Affiliates, directors, officers, employees, shareholders or agents in respect
thereof. The Confidentiality Agreement shall continue in full force and effect
notwithstanding the termination of this Agreement for any reason.
12.4 CURE RIGHT. Notwithstanding anything to the contrary contained in
this Agreement, in the event of any breach of Louisiana-Pacific's, LPS
Corporation's, Redwood, LLC's or Samoa, Inc.'s representations, warranties or
covenants (set forth herein or in any Ancillary Agreement) or in the event of
any notice of termination given pursuant to Sections 7.5 or 6.10 prior to the
Closing, Louisiana-Pacific, at its sole discretion, shall have 20 days to cure
such breach or agree in writing to reimburse Buyer for any actual and reasonable
costs associated with such breach or matters resulting in such termination
notice promptly payable at the time such costs are incurred; if
Louisiana-Pacific does so cure or offer to reimburse Buyer, Buyer shall have no
rights to terminate this Agreement or have any further claims against
Louisiana-Pacific or its Affiliates with respect to such breach or matters
resulting in such termination notice. In such events, Buyer shall have the right
to delay the Closing up to 30 days from the date of such cure or agreement to
reimburse.
ARTICLE XIII
GENERAL PROVISIONS
13.1 EXPENSES, TAXES, ETC. Except as otherwise provided herein, each
party will pay all fees and expenses incurred by it in connection with this
Agreement and the transactions contemplated hereby; provided, however, that all
41
sales, use, documentary, stamp andexcise Taxes and all transfer, filing, escrow,
notary, title insurance premiums and endorsements, recordation and similar Taxes
and fees (including all real estate transfer Taxes and conveyance and recording
fees, if any) incurred in connection with this Agreement and the transactions
contemplated hereby will be borne 50% by Buyer and 50% by Redwood, LLC; provided
further that all such fees and expenses incurred by Louisiana-Pacific or LPS
Corporation in connection with the transfer of assets to Redwood, LLC prior to
the Agreement Date shall be borne solely by Louisiana-Pacific or LPS
Corporation, and any Tax refunds in respect of such transfers shall inure solely
to the benefit of Louisiana-Pacific or LPS Corporation.
13.2 NOTICES. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made as of the date delivered or mailed if delivered personally or mailed by
registered or certified mail (postage prepaid, return receipt requested), or
sent by facsimile transmission, (confirmation received) to the parties at the
following addresses and facsimile transmission numbers (or at such other address
or number for a party as shall be specified by like notice), except that notices
after the giving of which there is a designated period within which to perform
an act and notices of changes of address or number shall be effective only upon
receipt:
(a) if to Louisiana-Pacific, Redwood, LLC, Samoa, Inc. or LPS
Corporation:
111 S.W. Fifth Avenue
U.S. Bancorp Tower
Portland, Oregon 97204
Attention: Mark A. Suwyn
Facsimile No.: (503) 796-0322
Telephone No.: (503) 221-0800
with a copy to:
Louisiana-Pacific Corporation
111 S.W. Fifth Avenue
U.S. Bancorp Tower
Portland, Oregon 97204
Attention: Office of General Counsel
Facsimile No.: (503) 796-0105
Telephone No.: (503) 796-0302
and an additional copy to:
Orrick, Herrington & Sutcliffe LLP
Old Federal Reserve Bank Building
400 Sansome Street
San Francisco, California 94111
Attention: Richard D. Harroch, Esq.
Lowell D. Ness, Esq.
Facsimile No.: (415) 773-5759
Telephone No.: (415) 392-1122
42
(b) if to Buyer:
Simpson Timber Company
1201 Third Avenue, Suite 4900
Seattle, Washington 98101-3045
Attention: President
Facsimile No.: (206) 224-5060
Telephone No.: (206) 224-5000
with a copy to:
Simpson Timber Company
1201 Third Avenue, Suite 4900
Seattle, Washington 98101-3045
Attention: Legal Department
Facsimile No.: (206) 224-5059
Telephone No.: (206) 224-5000
13.3 DISCLOSURE SCHEDULE. The Disclosure Schedule shall be divided into
sections corresponding to the sections and subsections of this Agreement.
Disclosure of any fact or item in any section of the Disclosure Schedule shall,
should the existence of the fact or item or its contents be relevant to any
other section of the Disclosure Schedule, be deemed to be disclosed with respect
to that other section or subsection of the Disclosure Schedule whether or not
any explicit cross-reference appears therein. Disclosure of any matter in the
Disclosure Schedule shall not be deemed to imply that such matter is or is not
material. Disclosure of any matter in the Disclosure Schedule shall not
constitute an admission or raise any inference that such matter constitutes a
violation of law or an admission of Liability or facts supporting Liability.
13.4 INTERPRETATION
(a) When a reference is made in this Agreement to Sections,
subsections, Schedules or Exhibits, such reference shall be to a Section,
subsection, Schedule or Exhibit to this Agreement unless otherwise indicated.
The words "include," "includes" and "including" when used herein shall be deemed
in each case to be followed by the words "without limitation." The table of
contents and the headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement. The words "herein" and "hereby" and similar references mean, except
where a specific Section or Article reference is expressly indicated, the entire
Agreement rather than any specific Section or Article. Except as otherwise
expressly provided herein, all monetary amounts referenced in this Agreement
shall mean U.S. dollars.
(b) Any references in this Agreement to the "best knowledge" or
"knowledge" of Louisiana-Pacific or to matters "known" to Louisiana-Pacific,
shall mean the actual knowledge without inquiry or investigation (other than
reviewing this Agreement) of only the Persons listed on Schedule 13.4(b)-1. Any
references in this Agreement to the "best knowledge" or "knowledge" of Buyer
shall mean the actual knowledge without inquiry or investigation
43
(other than reviewing this Agreement) of only the Persons listed on Schedule
13.4(b)-2. Anything herein to the contrary notwithstanding, no Person listed on
any of such schedules shall have any personal Liability with respect to any of
the matters set forth in this Agreement or any representation or warranty herein
being or becoming untrue, inaccurate or incomplete.
13.5 SEVERABILITY. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible in an acceptable manner to the end that
transactions contemplated hereby are fulfilled to the greatest extent possible.
13.6 ASSIGNMENT. Between the Agreement Date and the Closing Date, no
party hereto shall assign this Agreement by operation of law or otherwise
without the prior written consent of the other parties hereto unless the
assignor, together with the assignee, remains liable hereunder. The sale of more
than 50% of the stock or ownership interest in Buyer or Louisiana-Pacific prior
to the Closing Date shall constitute an assignment of this Agreement for
purposes of this Section. Any attempted assignment in violation of this Section
shall be deemed null and void.
13.7 NO THIRD-PARTY BENEFICIARIES. This Agreement is for the sole
benefit of the parties hereto and their permitted assigns and nothing herein
expressed or implied shall give or be construed to give to any Person, other
than the parties hereto and such assigns, any legal or equitable rights
hereunder.
13.8 AMENDMENT. This Agreement may not be amended or modified except by
an instrument in writing signed by all of the parties hereto.
13.9 NO OTHER REMEDIES
(a) Any and all remedies herein expressly conferred upon a party hereby are
deemed exclusive of any other remedy conferred hereby or by law or equity on
such party; provided, however, that any party hereto shall have the right to
seek specific performance of the obligations of another party hereto under this
Agreement if all of the conditions to the obligations of such party seeking
specific performance set forth in Article VII or Article VIII, as the case may
be, have been satisfied. In particular, except as provided in Sections 2.10 and
6.5, the remedies provided by Article IX for Losses shall be exclusive of any
other rights or remedies available to a party against another party, either at
law or in equity, in relation to any breach, default or nonperformance of any
representation, warranty, covenant, agreement or undertaking made or entered
into by such other party pursuant to this Agreement, any agreement executed
pursuant to this Agreement or the transactions contemplated hereby.
Notwithstanding any provision hereof or of the Ancillary Agreements, no party
hereto shall be liable hereunder or under the Ancillary Agreements to any Buyer
Indemnified Party or Louisiana-Pacific Indemnified Party for any incidental or
consequential damages, or loss of profits, or
44
opportunities, or any exemplary or punitive damages, regardless of the
circumstances from which such damages arose.
(b) No Action for termination or rescission, or claiming repudiation,
of this Agreement or any agreement executed pursuant to this Agreement may be
brought or maintained by any party against another party following the Closing
Date no matter how severe, grave or fundamental any such breach, default or
nonperformance may be by one party, except in the event of actual fraud in a
material respect. Accordingly, the parties hereby expressly waive and forego any
and all rights they may possess to bring any such Action.
(c) With regard to Section 2.10, Section 9.6, this Section 13.9 and
Section 13.13, each party hereto acknowledges that it has read and is familiar
with, and hereby waives the benefit of, the provisions of California Civil Code
Section 1542, which is set forth below:
"A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the
time of executing the release, which if known by him must have
materially affected his settlement with the debtor."
13.10 FURTHER ASSURANCES. Each party agrees to cooperate fully with the
other parties and to execute such further instruments, documents and agreements
and to give such further written assurances as may be reasonably requested by
any other party to evidence and reflect the transactions described herein and
contemplated hereby and to carry into effect the intents and purposes of this
Agreement.
13.11 MUTUAL DRAFTING. This Agreement is the product of the parties
hereto and each provision hereof has been subject to the mutual consultation,
negotiation and agreement of the parties hereto and shall not be construed for
or against any party hereto.
13.12 GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of California (without giving effect
to its choice of law principles).
13.13 JURISDICTION; WAIVER OF JURY TRIAL. Subject to the arbitration
provisions set forth in Schedule 2.7(d), the parties hereby irrevocably and
unconditionally consent to submit to the exclusive jurisdiction of the courts of
the State of California and of the United States of America located in San
Francisco, California for any action, suit or proceeding arising out of or
relating to this Agreement and the transactions contemplated hereby (and the
parties shall not commence any action, suit or proceeding relating thereto
except in such courts), and further agree that service of any process, summons,
notice or document by registered mail shall be effective service of process for
any action, suit or proceeding in any such court. The parties hereby irrevocably
and unconditionally waive any objection to the laying of venue of any action,
suit or proceeding arising out of this Agreement or the transactions
contemplated hereby, in the courts of the State of California or the United
States of America located in San Francisco, California, and hereby further
irrevocably and unconditionally waive and agree not to plead or to claim in any
such court that any such action, suit or proceeding brought in any such court
has
45
been brought in an inconvenient forum. The parties hereby further irrevocably
and unconditionally waive any right to a jury trial in any such court.
13.14 INTEREST. At such time as it shall have been conclusively
determined that one party owes a sum certain of money to another party hereunder
(other than pursuant to Sections 9.2 or 9.3), the obligated party shall pay
interest on the amount due from the date determined due until the date paid, at
a floating rate equal to the prime rate of Bank of America, NT & SA, as publicly
announced and in force from time to time.
13.15 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same instrument.
13.16 ENTIRE AGREEMENT. This Agreement, together with all schedules and
exhibits hereto and the Disclosure Schedule, and the documents and instruments
and other agreements among the parties delivered at the Closing pursuant to
Article III, including the Ancillary Agreements, constitute the entire agreement
and supersede all prior agreements and undertakings, both written and oral
(including, in particular, the Confidential Information Memorandum prepared by
SBC Warburg Dillon Read Inc. which has been superseded by Buyer's subsequent due
diligence), other than the Confidentiality Agreement, with respect to the
subject matter hereof and are not intended to confer upon any other Person any
rights or remedies hereunder, except as otherwise expressly provided herein.
46
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first written above by their respective officers
thereunto duly authorized.
LOUISIANA-PACIFIC CORPORATION, SIMPSON TIMBER COMPANY,
a Delaware corporation a Washington corporation
By: /s/ Curtis M. Stevens By: /s/ Charles F. Pollnou
Name: Curtis M. Stevens Name: Charles F. Pollnou, Jr.
Title: Vice President, Treasurer Title: Vice President and Chief
& Chief Financial Officer Financial Officer
LPS CORPORATION, SIMPSON INVESTMENT COMPANY,
a Delaware corporation a Washington corporation
By: /s/ Curtis M. Stevens By: /s/ Charles F. Pollnou
Name: Curtis M. Stevens Name: Charles F. Pollnou, Jr.
Title: Treasurer Title: Vice President and Chief
Financial Officer
L-P REDWOOD, LLC,
a Delaware limited liability company
By: /s/ Curtis M. Stevens
Name: Curtis M. Stevens
Title: Treasurer
LOUISIANA-PACIFIC SAMOA, INC.,
an Oregon corporation
By: /s/ Curtis M. Stevens
Name: Curtis M. Stevens
Title: Treasurer