Exhibit 2.1
KB INDUSTRIES LIMITED PARTNERSHIP
AGREEMENT ON
TRANSFER OF GENERAL PARTNER AND
LIMITED PARTNER INTERESTS
This agreement ("AGREEMENT"), dated as of July 3, 2001, is by and among LWK
Management Company, Inc., a Nevada corporation ("LWK"), in its capacity as both
the general partner, and as a limited partner, of KB Industries Limited
Partnership, a California limited partnership ("Partnership"); L&H Partners
Limited Partnership, a Nevada limited partnership ("L&H"), in its capacity as a
limited partner in the Partnership; BMC Framing, Inc., a Delaware corporation
("Framing"), in its capacity as a limited partner in Partnership; and Building
Materials Holding Corporation, a Delaware corporation ("BMHC").
INTRODUCTION
A. The partnership interests in Partnership are owned as follows:
General Partner
LWK Management Company, Inc. 1%
Limited Partner
LWK Management Company, Inc. 49%
L&H Partners Limited Partnership 1%
BMC Framing, Inc. 49%
B. Under Section 8.1 of the Limited Partnership Agreement ("PARTNERSHIP
AGREEMENT") of the Partnership, Framing reserved the right, by written notice,
to cause LWK and L&H to redeem their partnership interests (the "INTERESTS") in
the Partnership (the "REDEMPTION") for an amount equal to the Redemption Price
(as defined below). As of May 1, 2001, Framing furnished a written notice of its
request for the Redemption (the "NOTICE"), in which Framing specified, as
required by the Partnership Agreement, that the Redemption Price be paid
entirely in cash. The Notice also provided that the Redemption would close, and
that LWK and L&H would cease to be partners of Partnership, at 12:01 AM on July
3, 2001.
C. Rather than complete the redemption as provided for in the Partnership
Agreement, LWK desires to sell and BMHC desires to purchase the general
partnership interest owned by LWK, and LWK and L&H desire to sell and Framing
desires to purchase the limited partnership interests owned by LWK and L&H for
the price that would have been paid on the Redemption of the Interests. In
connection with the purchase (the "PURCHASE") of the Interests, the parties
desire to set forth the terms and the
mechanism for determining the purchase price and to make certain other
agreements related to the Purchase as provided in this Agreement.
AGREEMENT
For valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. THE PURCHASES. LWK shall sell its 1% general partner interest and BMHC
shall purchase the general partner interest. LWK shall sell its 49% limited
partner interest and L&H shall sell its 1% limited partner interest and Framing
shall purchase the collective 50% limited partner interests. As a result, BMHC
will hold a 1% general partner interest and Framing will hold a 99% limited
partner interest in the Partnership upon consummation of the purchases.
2. PURCHASE PRICE AND PAYMENT TERMS. The purchase price for the Interests
to be purchased is a total of $1,020.00 consisting of $1,000.00 for the 1%
general partner interest and 49% limited partner interest of LWK and $20.00 for
the 1% limited partner interest of L&H.
3. TRANSFER OF PARTNERSHIP INTERESTS AND TAX MATTERS. On July 2, 2001 at
12:01 AM, the Interests shall be transferred by instruments of transfer in the
form attached hereto as Exhibit A and LWK and L&H shall have no further interest
whatsoever as partners of the Partnership upon the transfer, but until such
date, LWK shall continue as a partner of the Partnership with a 1% general
partner interest and a 49% limited partner interest, and L&H shall continue as a
partner of the Partnership with a 1% limited partner interest.
4. REPRESENTATIONS AND WARRANTIES OF LWK. LWK represents and warrants
that: (a) LWK owns the 1% general partner interest and the 49% limited partner
interest being transferred of record and beneficially, free and clear of all
liens, encumbrances or other restrictions, except for restrictions contained in
the Partnership Agreement; (b) other than the partnership interests in the
Partnership owned by L&H and Framing, to LWK's knowledge there are outstanding
no other partnership interests or rights to acquire partnership interests in the
Partnership; and (c) to LWK's actual knowledge, the Partnership does not have
any material liabilities or obligations of any nature (absolute, accrued,
contingent or otherwise), except as set forth or reflected on the latest balance
sheet of the Partnership delivered to Framing.
5. REPRESENTATIONS AND WARRANTIES OF L&H. L&H represents and warrants
that: (a) L&H owns the 1% limited partner interest being transferred of record
and beneficially, free and clear of all liens, encumbrances or other
restrictions, except for restrictions contained in the Partnership Agreement;
(b) other than the partnership interests in Partnership owned by LWK and
Framing, to L&H's knowledge there are outstanding no other partnership interests
or rights to acquire partnership interests in the Partnership; and (c) to L&H's
actual knowledge, the Partnership does not have any
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material liabilities or obligations of any nature (absolute, accrued, contingent
or otherwise), except as set forth or reflected on the latest balance sheet of
the Partnership delivered to Framing.
6. LIMITED PARTNERSHIP AGREEMENT; PURCHASE. To the extent of any
inconsistency between this Agreement and the Partnership Agreement, the terms of
this Agreement shall control. Upon payment of the purchase price hereunder the
terms and conditions of Section 8.1 of the Partnership Agreement shall be
considered satisfied in full.
7. NOTICES. All notices, offers, demands or other communications
hereunder shall be in writing. Notices shall be deemed received on the date of
delivery or, if mailed, on the date appearing on the return receipt therefor.
Notices shall be deemed to have been duly given if delivered or if mailed,
postage prepaid and by registered or certified United States mail with return
receipt requested and returned showing the date of delivery, to the parties at
the addresses set forth below.
If to Framing:
BMC Framing, Inc.
Physical ATTN: Paul Street
Address: 720 Park Boulevard, Suite 200
Boise, Idaho 83712-7714
Mailing P.O. Box 70006
Address: Boise, Idaho 83707-0106
If to LWK: LWK Management Company, Inc.
ATTN: Lawrence Knipp
22436 North Violetta Drive
Scottsdale, Arizona 85255
With a copy to: Lewis and Roca LLP
Attn: David E. Manch
40 N. Central Avenue
Phoenix, Arizona 85004-4429
If to L&H: L&H Partners Limited Partnership
ATTN: Lawrence Knipp
22436 North Violetta Drive
Scottsdale, Arizona 85255
With a copy to: Lewis and Roca LLP
Attn: David E. Manch
40 N. Central Avenue
Phoenix, Arizona 85004-4429
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If to BMHC: Building Materials Holding Corporation
One Market Plaza
Steuart Tower, Suite 2650
San Francisco, CA 94105-1475
Attention: Robert E. Mellor
President and CEO
With copy to: Building Materials Holding Corporation
720 Park Blvd, Suite 200
P.O. Box 70006
Boise, Idaho 83707-0106
Attention: Paul S. Street, Sr. Vice President,
Chief Administrative Officer,
General Counsel, and Corporate Secretary
8. ENTIRE AGREEMENT, AMENDMENT AND SUCCESSORS. This Agreement constitutes
the entire agreement of the parties with respect to the matters covered by it.
No alteration or modification of this Agreement shall be valid except as is in
writing and fully executed by the parties. If any term or provision hereof is
illegal or invalid for any reason whatsoever, such illegality or invalidity
shall not affect the legality or validity of the remainder of the Agreement.
This Agreement shall be binding upon the parties hereto, their heirs, personal
representatives, successors and assigns.
9. WAIVER AND CONFLICT. In the event of any conflict between the terms
and provisions of this Agreement and the Partnership Agreement, this Agreement
shall control.
10. ARIZONA LAW. This Agreement shall be construed in accordance with the
laws of the state of Arizona.
11. COUNTERPARTS. This Agreement may be executed in any number of
counterparts.
12. HART-SCOTT-RODINO ANTITRUST IMPROVEMENTS ACT OF 1976. Notwithstanding
any other provision of this Agreement, the transactions contemplated by this
Agreement shall not be consummated until the expiration of the required waiting
period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976 or the
early termination of such waiting period.
13. EXECUTION. The parties have executed this Agreement as of the first
date shown above.
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IN WITNESS WHEREOF, each of the parties has caused this Agreement to be
executed by its duly authorized officers or partners.
FRAMING:
BMC FRAMING, INC.
By: /s/ ROBERT E. MELLOR
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Its: PRESIDENT AND CHIEF EXECUTIVE OFFICER
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LWK:
LWK MANAGEMENT COMPANY, INC.
By: /s/ Larry Knipp
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Its: MANAGER
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L&H:
L&H PARTNERS LIMITED PARTNERSHIP
By: LAWRENCE W. KNIPP AND BEVERLY A. KNIPP
FAMILY TRUST, General Partner
/s/ LARRY W. KNIPP
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Lawrence W. Knipp, Trustee
/s/ BEVERLY A. KNIPP
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Beverly A. Knipp, Trustee
BMHC:
BUILDING MATERIALS HOLDING CORPORATION
By: /s/ ROBERT E. MELLOR
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Its: PRESIDENT AND CHIEF EXECUTIVE OFFICER
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