EXHIBIT 10.1
AMENDED AND RESTATED SUPPORT AGREEMENT
LOUISIANA-PACIFIC CORPORATION
August 2, 1999
CONFIDENTIAL
- ------------
LE GROUPE FOREX INC.
1 Place Ville-Marie, Suite 3415
Montreal, Quebec
H3B 3N6
Dear Sirs:
This letter agreement (the "Agreement") sets out the terms and conditions upon
which Louisiana-Pacific Corporation (the "Offeror") will, either directly or
through a wholly-owned subsidiary, make an offer on the terms summarized in
Schedule "A" to this Agreement (the "Offer") for all of the issued and
outstanding Class A Multiple Voting Shares (the "Class A Shares") and all of the
issued and outstanding Class B Subordinate Voting Shares (the "Class B Shares,
and collectively with the Class A shares, the "Common Shares") of Le Groupe
Forex Inc. (the "Corporation") at the price per Common Share specified in
Schedule "A". This Agreement amends and restates the Support Agreement dated
June 25, 1999, as amended on July 21, 1999 between the Offeror and the
Corporation.
This Agreement further sets out certain covenants of the Corporation.
1. THE OFFER
1.1 TIMING. The Offeror agrees to make the Offer for 100% of the Common
Shares as soon as possible but in any event not more than ten (10)
calendar days after the date of this Agreement provided that, if the
Corporation has given to the Offeror a notice contemplated by Section
3.2 (j) hereof prior to the making of the Offer, such ten (10) day
period may, at the option of the Offeror, be extended by ten (10) days.
1.2 CONDITIONS PRECEDENT. Notwithstanding section 1.1, the Offeror shall
not be required to make the Offer (and shall, if it determines not to
make the Offer, without prejudice to any other rights, terminate this
Agreement by written notice to the Sellers and the Corporation) if:
(a) prior to the making of the Offer, (i) any act, action, suit or
proceeding shall have
-2-
been taken before or by any domestic or foreign court or
tribunal or governmental agency or other regulatory authority
or administrative agency or commission by any elected or
appointed public official or private person (including,
without limitation, any individual, corporation, firm, group
or other entity) in Canada or elsewhere, or (ii) any law,
regulation or policy shall have been proposed, enacted,
promulgated or applied:
a. to cease trade, enjoin, prohibit or impose material
limitations or conditions on the purchase by or the
sale to the Offeror of the Common Shares or any of
them pursuant to the Offer or the right of the
Offeror to own or exercise full rights of ownership
of the Common Shares or any of them; or
b. which, if the Offer was consummated, would, in the
judgment of the Offeror, acting reasonably,
materially and adversely affect the Corporation and
each of Forex OSB Inc. and Forex Chambord Inc. (the
"Subsidiaries") considered as a whole;
(b) at the time the Offeror proposes to make the Offer, there
exists any prohibition at law (other than those referred to in
paragraphs 2(b), (c) or (d) of Schedule "A" hereto) against
the Offeror making the Offer or taking up and paying for 100%
of the Common Shares under the Offer;
(c) there shall have occurred (or there shall have been generally
disclosed, if previously undisclosed generally) any change
(other than a change in the market conditions or price of
O.S.B.)(or any condition, event or development involving a
prospective change) in the business, assets, capitalization,
financial condition, licenses, permits, rights or privileges,
whether contractual or otherwise, of the Corporation or any of
its Subsidiaries which, in the judgment of the Offeror, acting
reasonably, is or would be materially adverse to the
Corporation and its Subsidiaries considered as a whole;
(d) the Offeror shall not have obtained assurances acceptable to
it with respect to CAAFS held by the Corporation from such
appropriate governmental authorities as it shall consider
desirable to ensure that there will be no termination, default
(other than a default resulting from a change of control)
breach or other adverse effects on the Corporation or the
Subsidiaries as a result of the transactions contemplated
herein;
(e) the agreement entered into on the date hereof between the
holders of Common Shares listed on Schedule "C" hereof (the
"Sellers") and the Offeror whereby such Sellers agreed to
deposit irrevocably and unconditionally
-3-
under the Offer that number of Common Shares, respectively,
set forth opposite their names on Schedule "C" including such
Common Shares to be issued pursuant to the exercise of the
options referred to therein is not in full force and effect
(the "Lock-Up Agreement");
(f) any representation or warranty of any of the Sellers in the
Lock-Up Agreement or any representation or warranty of the
Corporation in this Agreement shall not have been, as of the
date made, true and correct in all material respects, or the
Corporation or any of the Sellers shall not have respectively
performed in all material respects any covenant or complied
with any agreement to be performed by them or it under the
Lock-Up Agreement and this Agreement; or
(g) all non-unionized individuals working for the Corporation as a
result of services agreement entered into between the
Corporation and companies controlled by insiders of the
Corporation shall not have agreed to become employees of the
Corporation before the Offeror takes up and pays for the
Common Shares (the "Effective Date").
The foregoing conditions are for the sole benefit of the Offeror and may be
waived by the Offeror in whole or in part at any time and shall be deemed to
have been waived by it by the making of the Offer.
2. Representations and Warranties
2.1 REPRESENTATIONS AND WARRANTIES OF THE OFFEROR. The Offeror hereby
represents and warrants that:
(a) the Offeror is a corporation duly incorporated and validly
existing under the laws of its jurisdiction of incorporation;
(b) the Offeror has the financial resources and is financially
capable of completing the Offer; and
(c) the Offeror has the requisite corporate power and authority to
enter into this Agreement and to perform its obligations
hereunder; the execution and delivery of this Agreement by
Offeror and the consummation by the Offeror of the
transactions contemplated by this Agreement have been duly
authorized by the board of directors of the Offeror and no
other corporate proceedings on the part of the Offeror are
necessary to authorize this Agreement or the transactions
contemplated hereby and this Agreement has been duly executed
and delivered by Offeror and constitutes a valid and binding
agreement of the Offeror, enforceable against the Offeror in
accordance with its terms subject to the usual
-4-
exceptions as to bankruptcy and the availability of equitable
remedies.
2.2 REPRESENTATIONS AND WARRANTIES OF THE CORPORATION. In addition to the
representations and warranties made by the Corporation in Schedule B
hereof, the Corporation hereby represents and warrants that its board
of directors, upon consultation with its financial and legal advisors,
has determined that the price per Common Share offered pursuant to the
Offer is fair to the holders of Common Shares and that the Offer is in
the best interests of the Corporation and the holders of Common Shares.
3. Covenants of the Corporation
3.1 GENERAL. The Corporation hereby covenants that until the Offeror has
taken up and paid for the Common Shares under the Offer or abandoned
the Offer or the terms of this Agreement have been terminated by the
Corporation or the Offeror pursuant to Section 6 hereof:
(a) except as previously disclosed to the Offeror, it shall, and
shall cause each of its Subsidiaries or to, conduct its and
their respective businesses only in, and not take or omit to
take any action except in, the usual, ordinary and regular
course of business and consistent with past practice;
(b) except as previously disclosed to the Offeror, it will use its
reasonable best efforts to cause the Corporation to comply
promptly with all material requirements which applicable law
may impose on the Corporation and its Subsidiaries;
(c) it will promptly advise the Offeror orally and in writing of
any material change known to the Corporation in the condition
(financial or otherwise), properties, assets, liabilities,
operations, business or prospects of the Corporation or any of
its Subsidiaries;
(d) except for transactions (i) contemplated among the parties by
this Agreement or (ii) disclosed in writing by the Corporation
to the Offeror, prior to the Corporation or any of its
Subsidiaries making or agreeing to make any commitment or
agreement with respect to the following matters, it shall not
and shall not suffer or permit any Subsidiary to;
(i) pay any dividend or issue or commit to issue
any share of or other ownership interest in
the Corporation or the Subsidiaries (other
than as referred to in paragraph (d) of
Schedule "B" hereof);
-5-
(ii) grant or commit to grant any options,
warrants, convertible securities or rights
to subscribe for, purchase or otherwise
acquire or exchange into any shares or other
ownership interest in the Corporation or any
subsidiary;
(iii) directly or indirectly redeem, purchase or
otherwise acquire or commit or offer to
acquire any share of or other ownership
interest in the Corporation or any
subsidiary;
(iv) effect any subdivision, consolidation or
reclassification of any of its shares (or
pay any dividend or make any distribution on
or in respect of any of its shares); or
(v) amend its articles or by-laws;
(e) it shall not, and shall cause its Subsidiaries not to, settle
or compromise any claim brought by any present, former or
purported holder of any of its securities in connection with
the transactions contemplated by this Agreement prior to the
Effective Date without the prior written consent of the
Offeror, such consent not to be unreasonably withheld;
(f) except in the usual, ordinary and regular course of business
and consistent with past practice, or except as previously
disclosed in writing to the Offeror or as required by
applicable laws, it and its Subsidiaries shall not enter into
or modify in any material respect any contract, agreement,
commitment or arrangement which new contract or series of
related new contracts or modification to an existing contract
or series of related existing contracts would be material to
the Corporation or which would have a material adverse effect
on the Corporation;
(g) without restricting the fiduciary obligations of its
directors, it shall use all commercially reasonable efforts to
satisfy (or cause the satisfaction of) the conditions
precedent to its obligations hereunder to the extent the same
is within its control and to take, or cause to be taken, all
action and to do, or cause to be done, all other things
necessary, proper or advisable under all applicable laws to
complete the Offer and the transactions contemplated by this
Agreement;
(h) it shall make, or cooperate as necessary in the making of, all
necessary filings and applications under all applicable laws
required in connection with the transactions contemplated
herein and take all reasonable action necessary to be in
compliance with such laws;
-6-
(i) it shall use its reasonable commercial efforts to conduct its
affairs and shall cause its Subsidiaries to conduct their
affairs so that all of its representations and warranties
contained herein shall be true and correct in all material
respects on and as of the Effective Date as if made on and as
of such date;
(j) it will forthwith request from every person to whom it has
provided, since January 1, 1999, confidential information
concerning the Corporation in the context of an Acquisition
Proposal (as defined in Section 3.2(f) that such person
(including Boise Cascade Corporation or any of its affiliates
and associates) immediately return to the Corporation such
information and all copies thereof in any form whatsoever
under the power or control of any person and delete any such
information from all retrieval systems and data bases;
(k) if the Offeror takes up and pays for Common Shares pursuant to
the Offer, it will use all reasonable commercial efforts to
enable the Offeror to acquire the balance of the Common Shares
as soon as practicable by way of compulsory acquisition or any
subsequent acquisition transaction (as such expressions are
defined in the Offer); and
(l) use its reasonable best efforts to cause all members of the
board of directors of the Corporation and its Subsidiaries to
resign at the time and in the manner requested by the Offeror,
after the Offeror takes up and pays for the Common Shares.
3.2 SUPPORT FOR OFFER. The Corporation confirms to the Offeror and
covenants that:
(a) its board of directors supports the Offer and has decided to
recommend its acceptance to holders of Common Shares;
(b) the Corporation will use its reasonable best efforts to mail
the directors' circular (including such recommendation) with
the Offer, as well as to provide drafts thereof to the Offeror
and give the Offeror a reasonable opportunity to comment
thereon;
(c) the Corporation will cause a list of shareholders of the
Corporation prepared by the Corporation or the transfer
agent(s) of the Corporation in accordance with section 123.113
of the COMPANIES ACT (Quebec) and a list of holders of stock
options and any other rights, warrants or convertible
securities currently outstanding (with full particulars as to
the purchase, exercise or conversion price and expiry date)
prepared by the Corporation (as well as a security position
listing from each depositary, including The Canadian
-7-
Depository for Securities Limited) to be delivered to the
Offeror within two business days after execution of this
Agreement and supplemental lists setting out any changes
thereto for each business day thereafter to be delivered
forthwith to the Offeror, all such deliveries to be both in
printed form and computer-readable format;
(d) notwithstanding the pre-agreement investigation of the
Corporation and its Subsidiaries conducted by or on behalf of
the Offeror, the Corporation and its Subsidiaries shall give
the Offeror and its authorized agents reasonable ongoing
access during the term of this Agreement, upon reasonable
notice to the Corporation, to all of the Corporation's and its
subsidiaries' personnel, assets, properties, books, records,
agreements and commitments and to reasonably co-operate with
the Offeror and any such authorized persons in their review
and furnish such persons with all material information with
respect to the Corporation and its Subsidiaries and their
ongoing operations and activities as the Offeror or any person
authorized by it may reasonably request, provided that the
Offeror shall not unreasonably disrupt the normal business
operations of the Corporation or its Subsidiaries;
(e) (i) its board of directors has determined unanimously to use
its and their respective reasonable efforts (x) to encourage
all persons holding options to exercise such options prior to
the expiry of the Offer which, by their terms, are otherwise
exercisable and to tender all Common Shares issued in
connection therewith to the Offer and (y) to encourage all
persons holding convertible debentures to deposit such
convertible debentures for conversion prior to the expiry of
the Offer conditional upon the Offeror taking up and paying
for the Common Shares deposited under the Offer, (ii) its
board of directors has also resolved and has authorized and
directed the Corporation, subject to any required regulatory
or stock exchange approval, to cause the vesting of option
entitlements, to accelerate prior to or concurrent with the
expiry of the Offer which, by their terms, are otherwise
accelerated upon the Offeror's purchase of the Common Shares,
such that outstanding options to acquire Common Shares are
exercisable prior to or concurrent with the expiry of the
Offer, and to arrange for all Common Shares that are fully
paid thereunder to be distributed to those persons entitled
thereto so as to be able to be tendered into the Offer and to
thereafter satisfy all other obligations of the Corporation
under such plans;
(f) the Corporation shall not, directly or indirectly, through any
officer, director, employee, representative or agent of the
Corporation or any of its Subsidiaries, solicit, initiate or
knowingly encourage or facilitate (including by way of
furnishing information or entering into any form of agreement,
arrangement or understanding) the initiation of any inquiries
or proposals
-8-
regarding an Acquisition Proposal (as defined below),
participate in any, discussions or negotiations regarding any
Acquisition Proposal, withdraw or modify in a manner adverse
to the Offeror the approval of the Board of Directors of the
Corporation of the transactions contemplated hereby, accept or
approve or recommend any Acquisition Proposal or cause the
Corporation to enter into any agreement related to any
Acquisition Proposal; provided, however, that subject to
paragraph (j) below but notwithstanding the preceding part
of this paragraph and any other provision of this Agreement,
nothing shall prevent the Board of Directors of the
Corporation from considering, negotiating, approving,
recommending to its shareholders or entering into an agreement
in respect of an unsolicited bona fide written Acquisition
Proposal made and received under circumstances not involving
any breach of this Section that the Board of Directors of the
Corporation determines in good faith, after consultation with
financial advisors and after receiving a written opinion of
outside counsel to the effect that the Board of Directors of
the Corporation is required to take such action in order to
discharge properly its fiduciary duties, would, if consummated
in accordance with its terms, result in a transaction more
favourable to the Corporation's shareholders than the
transaction contemplated by this Agreement (any such
Acquisition Proposal being referred to herein as a "Superior
Proposal"), or from approving or recommending such Superior
Proposal. "Acquisition Proposal" means any merger,
amalgamation, take-over bid, sale of material assets (or any
lease, long-term supply agreement or other arrangement having
the same economic effect as a sale), any sale of a material
number of shares or rights or interests therein or thereto or
similar transactions involving the Corporation or any
Subsidiaries, or a proposal to do so, excluding this Offer;
(g) the Corporation shall promptly notify the Offeror of any
future Acquisition Proposal of which directors or senior
officers become aware, or any amendments to the foregoing, or
any request for non-public information relating to the
Corporation or any Subsidiaries in connection with an
Acquisition Proposal or for access to the properties, books or
records of the Corporation or any Subsidiary by any person or
entity that informs the Corporation or such Subsidiary that it
is considering making, or has made, an Acquisition Proposal.
Such notice shall include a description of the material terms
and conditions of any proposal and provide such details of the
proposal, inquiry or contact as the Offeror may reasonably
request including the identity of the person making such
proposal, inquiry or contact;
(h) if the Corporation receives a request for non-public
information from a person who shall have made a bona fide
Acquisition Proposal (the existence and content of which have
been disclosed to the Offeror), and the Board of
-9-
Directors of the Corporation determines that such proposal
would be a Superior Proposal pursuant to paragraph (f) above
after having received the opinion referred to therein, then,
and only in such case, the Board of Directors of the
Corporation may, subject to the execution of a confidentiality
agreement containing a standstill provision substantially
similar to that contained in the confidentiality agreement
signed by the Offeror, provide such person with access to
information regarding the Corporation, provided, however that
the Corporation sends a copy of any such confidentiality
agreement to the Offeror immediately upon its execution and
the Offeror is provided with a list of or copies of the
information provided to such person and immediately provided
with access to similar information to which such person was
provided;
(i) the Corporation shall ensure that its and its Subsidiaries'
officers, directors, employees and any financial advisors or
other advisors, agents or representatives retained by it are
aware of the provisions of this Section, and it shall be
responsible for any breach of this Section by any such
persons;
(j) the Corporation shall not withdraw or modify in a manner
adverse to the Offeror its approval or recommendation of the
Offer or accept, approve, recommend or enter into any
agreement in respect of an Acquisition Proposal (other than a
confidentiality agreement) on the basis that it would
constitute a Superior Proposal unless (i) it has notified the
Offeror of its bona fide intention to do so and provided the
Offeror with a copy of the documentation setting forth or
providing for such Acquisition Proposal, and (ii) five
business days shall have elapsed from the later of the date
the Offeror received such notice and the date the Offeror
received a copy of such documentation;
(k) during such five business day period, the Corporation
acknowledges that the Offeror shall have the opportunity, but
not the obligation, to offer to amend the terms of this
Agreement. The Board of Directors of the Corporation will
review any offer by the Offeror to amend the terms of this
Agreement in good faith in order to determine, in its
discretion in the exercise of its fiduciary duties, whether
the Offeror's offer upon acceptance by the Corporation would
result in the Acquisition Proposal not being a Superior
Proposal. If the Board of Directors of the Corporation so
determines, it will enter into an amended agreement with the
Offeror reflecting the Offeror's amended proposal; and
(l) the Corporation acknowledges and agrees that each successive
modification of any Acquisition Proposal shall constitute a
new Acquisition Proposal for all purposes of this Section,
including the five business days period referred in paragraphs
((j)) and ((k)).
-10-
4. Covenants of the Offeror
4.1 OFFEROR. Subject to the terms and conditions hereof, the Offeror hereby
covenants to:
(a) use its reasonable commercial efforts to successfully complete
the Offer, including diligently pursuing all requisite
regulatory approvals;
(b) co-operate with the Sellers and the Corporation in making all
requisite regulatory filings, and giving evidence in relation
thereto, and to provide copies of all written documents and
submissions and responses with respect thereto in connection
with regulatory proceedings; and
(c) provide copies of drafts of the Offer to the Corporation, in
order to provide them with an opportunity to comment.
4.2 CONFIDENTIALITY AGREEMENT. The Offeror hereby covenants and agrees to
be bound by the terms of the confidentiality agreement dated June 18,
1999 between the Offeror and the Corporation (the "Confidentiality
Agreement") throughout the term of this Agreement and in the event that
this Agreement is terminated for any reason whatsoever. The Corporation
hereby confirms and agrees that the Confidentiality Agreement will be
null and void in the event that the Offeror takes up and pays for
Common Shares under the Offer. Furthermore, in such circumstances, each
of the Sellers agrees to hold all Information (as defined below)
confidential and not to use it in any way detrimental to the interests
of the Offeror, the Corporation or its Subsidiaries, except as required
by law. For the purposes hereof, "Information" has the meaning ascribed
to such expression in the Confidentiality Agreement.
5. Break Fee Event
5.1 A "Break Fee Event" shall occur if (x) the Board of Directors of the
Corporation shall withdraw or modify in a manner adverse to the Offeror
its approval or recommendation of the Offer, or approve or recommend
any Superior Proposal, or determine at the conclusion of the process
set out in Section 3.2 (k) and (l) that any Acquisition Proposal is
a Superior Proposal, or shall fail to reaffirm such approval or
recommendation upon the Offeror's request, or take or resolve to take
any of the foregoing actions, or (y) an Acquisition Proposal shall have
been made directly to the Corporation's shareholders for a
consideration exceeding $31.00 prior to the Offeror making the Offer
and the Offeror shall decide not to make the Offer and such Acquisition
Proposal succeeds.
6. Termination
-11-
6.1 TERMINATION BY CORPORATION. The Corporation, when not in default in
performance of its material obligations under this Agreement, may,
without prejudice to any other rights and subject to Section 6.3
hereof, terminate its obligations under this Agreement by notice to the
Offeror if:
(a) the Offer has not been made within the time period provided in
Section 1.1;
(b) the Offer does not conform in all material respects with the
description of the Offer in Schedule "A";
(c) the Offeror has not taken up and paid for the Common Shares on
or prior to December 31, 1999;
(d) Common Shares deposited under the Offer have not, for any
reason whatsoever (other than that all the terms and
conditions of the Offer have not been complied with or waived
by the Offeror) been taken up and paid for on or before the
expiry of ten days after the expiry of the Offer (as it may
have been extended); or
(e) A Break Fee Event described in clause (x) of Section 5.1 shall
have occurred, provided that no termination under this
paragraph shall be effective unless and until the Corporation
shall have paid the Offeror by bank draft or wire transfer the
sum of $28 million in immediately available funds (the "Break
Fee").
6.2 TERMINATION BY OFFEROR. The Offeror, when not in default in performance
of its material obligations under this Agreement, may, without
prejudice to any other rights, terminate its obligations under this
Agreement by notice to the Corporation if:
(a) the Offeror has not taken up and paid for the Common Shares on
or prior to December 31, 1999;
(b) a Break Fee Event shall have occurred;
(c) as a result of the failure of any of the conditions set forth
in Schedule "A", the Offer shall have expired or have been
terminated in accordance with its terms without the Offeror
having purchased any Common Share pursuant to the Offer; or
(d) the Sellers or the Corporation shall have breached in any
material respect any of their respective representations,
warranties, covenants or other agreements contained in the
Lock-Up Agreement or this Agreement.
-12-
6.3 PAYMENT OF BREAK FEE. The Corporation shall pay the Break Fee to the
Offeror (i) in the event of any termination of this Agreement pursuant
to paragraph (b) or (d) of Section 6.2, or (ii) in the event that an
Acquisition Proposal made by a person other than the Offeror shall be
publicly announced or communicated to the Corporation prior to the
termination hereof and consummated within twelve (12) months of the
date of this Agreement or six (6) months after termination of this
Agreement whichever shall occur later. Such Break Fee shall be payable
by bank draft or wire transfer no later than the first business day
following the termination of this Agreement in the circumstances
described in (i) above or the first business day following the
consummation of the Acquisition Proposal in the circumstances described
in (ii) above.
6.4 EFFECT OF TERMINATION. In the event of the termination of this
Agreement pursuant to Section 6.1 or 6.2, this Agreement (except for
Sections 6.1(e), 6.3, 6.4 and 7) shall forthwith become void and
cease to have any force or effect without any liability on the part of
any party hereto or any of its affiliates; provided however that
nothing in this Section 6.4 shall relieve any party to this Agreement
of liability for any breach of this Agreement.
7. General
7.1 DISCLOSURE. Except as required by applicable laws or regulations, or as
required by any competent governmental, judicial or other authority, or
in accordance with the requirements of any stock exchange, no party
shall make any public announcement or statement with respect to this
Agreement or the Lock-Up Agreement without the approval of the others,
which shall not be unreasonably withheld. Moreover, the parties agree
to consult with each other prior to issuing each public announcement or
statement with respect to this Agreement or the Lock-Up Agreement.
7.2 ASSIGNMENT. The Offeror may assign all or any part of its rights and/or
obligations under this Agreement to a wholly-owned subsidiary of the
Offeror, but, if such assignment takes place, the Offeror shall
continue to be liable to the Corporation for any default in performance
by the assignee. This Agreement shall not otherwise be assignable by
any party without the consent of the other.
7.3 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the Province of Quebec and of Canada
applicable therein (without regard to conflict of laws principles).
7.4 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations and
warranties made by the Corporation shall survive until the Effective
Date and the representations and warranties made by the Offeror herein
shall survive for a period of one year from the date hereof except that
any representations which prove to be incorrect
-13-
or untrue as a result of tax matters shall survive only as to such tax
matters until thirty (30) days following the last applicable limitation
period under applicable tax laws and except in the case of fraud which
shall survive indefinitely. No investigations made by or on behalf of
the Offeror or any of its authorized agents at any time shall have the
effect of waiving, diminishing the scope of or otherwise affecting any
representation, warranty or covenant made by the Corporation herein or
pursuant hereto.
7.5 AMENDMENTS. This Agreement may not be amended except by written
agreement signed by all of the parties to this Agreement.
7.6 SPECIFIC PERFORMANCE AND OTHER EQUITABLE RIGHTS. Each of the parties
recognizes and acknowledges that this Agreement is an integral part of
the Offer, that the Offeror would not contemplate causing the Offer to
be made unless this Agreement was executed, and that a breach by any
party of any covenants or other commitments contained in this Agreement
will cause the other parties to sustain injury for which they would not
have an adequate remedy at law for money damages. Therefore, each of
the parties agrees that in the event of any such breach, the aggrieved
party or parties shall be entitled to the remedy of specific
performance of such covenants or commitments and preliminary and
permanent injunctive and other equitable relief in addition to any
other remedy to which it or they may be entitled, at law or in equity,
and the parties further agree to waive any requirement for the securing
or posting of any bond in connection with the obtaining of any such
injunctive or other equitable relief.
7.7 EXPENSES. The Corporation shall pay its legal, financial advisory and
accounting costs and expenses incurred in connection with the
preparation, execution and delivery of this Agreement and all documents
and instruments executed or prepared pursuant to this Agreement and any
other costs and expenses whatsoever and howsoever incurred. The Offeror
shall pay its legal, financial advisory and accounting costs and
expenses incurred in connection with the preparation, execution and
delivery of this Agreement and all documents and instruments executed
or prepared pursuant to this Agreement and any other costs and expenses
whatsoever and howsoever incurred.
7.8 BUSINESS DAY. A business day for the purpose of this Agreement shall
mean any day on which chartered banks in the City of Montreal are open
for business.
7.9 COUNTERPARTS. This Agreement may be executed in one or more
counterparts which together shall be deemed to constitute one valid and
binding agreement, and delivery of the counterparts may be effected by
means of a telecopier transmission.
7.10 SCHEDULE. Schedules "A" , "B" and C hereto shall for all purposes form
an integral part
-14-
of this Agreement.
7.11 ENTIRE AGREEMENT. This Agreement, together with the Confidentiality
Agreement (as defined herein) and any document referred to herein,
constitutes the entire agreement and understanding between the parties
pertaining to the subject matter of this Agreement.
7.12 TIME. Time shall be of the essence in this Agreement.
7.13 CURRENCY. All sums of money referred to in this Agreement shall mean
Canadian funds.
7.14 NOTICES. Any notice, request, consent, agreement or approval which may
or is required to be given pursuant to this Agreement shall be in
writing and shall be sufficiently given or made if delivered, or sent
by telecopier, in the case of:
(a) the Offeror, addressed as follows:
Louisiana-Pacific Corporation
111 South West Fifth
Portland, Oregon
USA 97204
Attention: The Office of the General Counsel
Telecopier No. (503) 796-0105
with a copy to:
Stikeman, Elliott
Suite 4000
1155 West Rene-Levesque Blvd.
Montreal, Quebec
H3B 3V3
Attention: Pierre A. Raymond
Telecopier No.: (514) 397-3222
(b) the Corporation, addressed as follows:
-15-
Le Groupe Forex Inc.
1, Place Ville-Marie, suite 3415
Montreal, Quebec
H3B 3N6
Attention: Jacques Dalpe, Vice-president Affaires
juridiques
Telecopier No.:
with a copy to:
Martineau Walker
Tour de la Bourse
800, Place Victoria, Suite 3400
Montreal, Quebec
H4Z 1E9
Attention: Maurice Forget
Telecopier No.: (514) 397-7600
or to such other address as the relevant party may from time to time advise by
notice in writing given pursuant to this Section. The date of receipt of any
such notice, request, consent, agreement or approval shall be deemed to be the
date of delivery or sending thereof.
8. Special Provisions
8.1 JOINT CONDUCT. Notwithstanding any other provision hereof, the Offeror
shall upon its written election have no obligations hereunder to the
Corporation if the Corporation fails to comply with the terms hereof or
with any of its covenants or agreements hereunder or if any of the
representations or warranties of the Corporation prove to be incorrect
or untrue in any material respect.
8.2 COMMON SHARES. References to "Common Shares" include any shares into
which the foregoing may be reclassified, sub-divided, consolidated or
converted and any rights and benefits arising therefrom including any
extraordinary distributions of securities which may be declared in
respect of the Common Shares.
------------
-16-
If the terms and conditions of this letter are acceptable to you, please so
indicate by executing and returning the enclosed copy hereof to the undersigned
prior to 8:00 p.m. (Montreal time) on August 2, 1999, failing which this offer
shall be null and void.
Yours truly,
Louisiana-Pacific Corporation
By: /s/Gary Wilkerson
---------------------------------------
Gary Wilkerson
Agreed and accepted this 2nd day of August 1999
Le Groupe Forex Inc.
By: /s/ J. J. Cossette
---------------------------------------
Jean-Jacques Cossette
-17-
SCHEDULE "A"
TERMS OF THE OFFER
1. GENERAL TERMS. The Offer shall be made by a circular bid prepared in
compliance with the Securities Act (Quebec) and other applicable
provincial securities laws. The Offer shall be open for twenty-one (21)
days or such longer period as may be required to satisfy all of the
conditions set forth in paragraph 3 below, provided that in no event
shall the Offer be required to be open after December 31, 1999.
2. PRICE OF THE OFFER. The Offer shall be made for a consideration of not
less than Cdn. $31.00 per Common Share payable, at the option of the
holder, in cash, by the delivery of Instalment Notes (which shall be
deemed for purposes of the Offer to have a value equal to the original
principal amount thereof) or a combination thereof.
3. CONDITIONS OF THE OFFER. The Offer shall not be subject to any
conditions other than those substantially described as follows:
(a) not less than 66-2/3% of the outstanding Class A Multiple
Voting Shares and not less than 66-2/3% of the outstanding
Class B Subordinate Voting Shares (on a fully-diluted basis,
assuming that all rights to acquire Common Shares were to be
exercised in full) are tendered under the Offer and not
withdrawn at the expiration of the Offer;
(b) (i) the Commissioner of Competition (the "Commissioner")
appointed under the Competition Act (Canada) (the "Act") shall
have issued an advance ruling certificate under section 102 of
the Act in respect of the transaction (the "Transaction")
which will result from the Offer; (ii) the Commissioner shall
have advised the Offeror that he does not intend at the
current time to apply to the Competition Tribunal for an order
under section 92 of the Act in respect of the Transaction; or
(iii) the applicable waiting period under section 123 of the
Act shall have expired without the Commissioner having
notified the Offeror that he intends to apply to the
Competition Tribunal for an order under section 92 of the Act
in respect of the Transaction; and no proceedings shall have
been taken or threatened under the merger provisions of Part
VIII or under section 45 of the Act in respect of the
Transaction;
(c) any applicable waiting periods under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976 shall have expired or been
earlier terminated;
(d) any other requisite regulatory approvals or requirements
(including without
-18-
limitation those of stock exchanges and securities regulatory
authorities and under the Investment Canada Act,) shall have
been obtained or satisfied on terms satisfactory to the
Offeror;
(e) (i) no act, action, suit or proceeding shall have been
threatened or taken before or by any domestic or foreign court
or tribunal or governmental agency or other regulatory
authority or administrative agency or commission by any
elected or appointed public official or private person
(including, without limitation, any individual, corporation,
firm, group or other entity) in Canada or elsewhere and (ii)
no law, regulation or policy shall have been proposed,
enacted, promulgated or applied:
a. to cease trade, enjoin, prohibit or impose material
limitations or conditions on the purchase by or the
sale to the Offeror of the Common Shares or any of
them pursuant to the Offer or the right of the
Offeror to own or exercise full rights of ownership
of the Common Shares or any of them, or
b. which if the Offer was consummated, would materially
and adversely affect the Corporation and its
Subsidiaries considered on a consolidated basis or
the Offeror;
(f) there shall not exist any prohibition at law against the
Offeror making the Offer or taking up and paying for 100% of
the Common Shares under the Offer;
(g) there shall not have occurred any change after December 31,
1998 (other than a change in the market conditions or price of
O.S.B.)(or any condition, event or development involving
prospective change) in the business, assets, capitalization,
financial condition, licences, permits, rights or privileges,
whether contractual or otherwise, of the Corporation or any of
its Subsidiaries considered as a whole which was not disclosed
prior to the Offer in writing to the Offeror, and which, in
the judgment of the Offeror, acting reasonably, is or would be
materially adverse to the Corporation and its Subsidiaries
considered as a whole;
(h) the Offeror shall have obtained assurances acceptable to it
with respect to CAAFS held by the Corporation from such
appropriate governmental authorities as it shall consider
desirable to ensure that there will be no termination, default
(other than a default resulting from a change of control),
breach or other adverse effects on the Corporation or the
Subsidiaries as a result of the transactions contemplated
herein; and
(i) any representation or warranty of any of the Sellers and the
Corporation in the
-19-
Lock-Up Agreement and this Agreement shall not have been, as
of the date made, true and correct in all material respects,
or the Corporation or any of the Sellers shall not have
performed in all material respects any covenant or complied
with any agreement to be performed by them under the Lock-Up
Agreement and this Agreement.
The foregoing conditions will be for the sole benefit of the Offeror and may be
waived by it in whole or in part at any time.
4. TERMS OF INSTALMENT NOTES. The Installment Notes shall be issued by a
Canadian corporation pursuant to a note indenture and the principal
terms thereof shall be:
(a) interest rate: annual interest rate equal to the rate secured
by the Offeror on the indebtedness incurred to finance the
Offer from its principal bankers payable quarterly calculated
in arrears;
(b) instalments: 20% of the principal payable on the Effective
Date and 20% on the first, second, third and fourth
anniversary of the issuance of the notes (it being understood
that, if the initial principal payment is duly paid or
provided for on the Effective Date, the notes need represent
only the principal payments due after the Effective Date);
(c) guarantee: unconditionally guaranteed by Offeror;
(d) security: unsecured, ranking PARI PASSU with indebtedness to
ordinary creditors of the issuer;
(e) events of default: customary, including non-payment of
instalment or interest and insolvency of issuer or guarantor;
(the "Instalment Notes").
5. HOLDCO PURCHASE. The Offer will provide that any holder of Common
Shares which holds such Common Shares indirectly through a holding
corporation (a "Holdco") may deposit all of the outstanding shares of
its Holdco under the Offer. Any such deposit of shares of a Holdco as
opposed to the deposit of the underlying Common Shares shall be subject
to customary conditions, including (i) any required approval under
applicable securities laws, (ii) the relevant seller providing
representations, warranties and indemnities reasonably satisfactory to
the Offeror, including as to the absence of any liabilities in the
relevant Holdco and of any asset other than Common Shares, and (iii)
each seller who deposits shares of a Holdco shall reimburse the Offeror
for any additional costs that will
-20-
be incurred as a result of the acquisition of such Holdco.
-21-
SCHEDULE "B"
REPRESENTATIONS AND WARRANTIES OF THE CORPORATION
(a) ORGANIZATION, STANDING AND CORPORATE POWER. Each of
Corporation and each of the Subsidiaries has been duly
incorporated or formed under applicable law, is validly
existing and has full corporate or legal power and authority
to own its properties and conduct its businesses as currently
owned and conducted. All of the outstanding shares and other
ownership interests of the Subsidiaries are validly issued,
fully paid and non-assessable and all such shares and other
ownership interests owned directly or indirectly by
Corporation are owned free and clear of all material liens,
claims or encumbrances, and except as disclosed in paragraph
(d) hereof, there are no outstanding options, rights,
entitlements, understandings or commitments (contingent or
otherwise) regarding the right to acquire any shares or other
ownership interests in any of the Subsidiaries.
(b) AUTHORITY; NO CONFLICT. The Corporation has the requisite
corporate power and authority to enter into this Agreement and
to perform its obligations hereunder. The execution and
delivery of this Agreement by Corporation and the consummation
by Corporation of the transactions contemplated by this
Agreement have been duly authorized by the board of directors
of Corporation and no other corporate proceedings on the part
of Corporation are necessary to authorize this Agreement or
the transactions contemplated hereby. This Agreement has been
duly executed and delivered by Corporation and constitutes a
valid and binding obligation of Corporation, enforceable
against Corporation in accordance with its terms subject to
the usual exceptions as to bankruptcy and the availability of
equitable remedies. Except as disclosed in writing to the
Offeror prior to the execution of this Agreement, the
execution and delivery by Corporation of this Agreement and
performance by it of its obligations hereunder and (subject to
satisfying the conditions to the Offer specified in clauses
3(b), (c) and (d) of Schedule "A" with respect to subparagraph
A(ii) below) the completion of the Offer and the transactions
contemplated thereby, will not:
a. result in a violation or breach of, require any
consent to be obtained under or give rise to any
termination rights or other adverse consequences
under any provision of:
b. its or any Subsidiary's certificate of incorporation,
articles, by-laws or other charter documents,
including any unanimous shareholder agreement or any
other agreement or understanding with any party
-22-
holding an ownership interest in any Subsidiary;
(i) any law, regulation, order, judgment or
decree; or
(ii) any material contract, agreement, license,
franchise or permit to which the Corporation
or any Subsidiary is bound or is subject or
is the beneficiary;
c. except as disclosed to the Offeror prior to the
execution of this Agreement, give rise to any right
of termination or acceleration of indebtedness, or
cause any indebtedness to come due before its stated
maturity or cause any available credit to cease to be
available; or
d. result in the imposition of any hypothec, mortgage,
lien, charge, encumbrance, or adverse claim upon any
of its assets or the assets of any Subsidiary, or
restrict, hinder, impair or limit the ability of
Corporation or any Subsidiary to carry on the
business of Corporation or any Subsidiary as and
where it is now being carried on or as and where it
may be carried on in the future.
(c) CONSENTS AND APPROVALS. No consent, approval or authorization
of, or declaration or filing with, or notice to, any
Governmental Entity which has not been received or made is
required by or with respect to Corporation or any of its
Subsidiaries in connection with the execution and delivery of
this Agreement by Corporation or the consummation by
Corporation of the transactions contemplated hereby, except
for (i) satisfying the conditions of the Offer specified in
clauses 3 (b), (c) and (d) of Schedule "A", (ii) any other
consents, approvals, authorizations, filings or notices the
failure to make or obtain which would not reasonably be
expected to have, individually or in the aggregate, a material
adverse effect on Corporation.
(d) CAPITAL STRUCTURE. As of July 30, 1999, there are 11,169,483
Class A Shares and 5,950,158 Class B Shares issued and
outstanding. As at the date hereof, up to a maximum of
1,583,233 Class B Shares may be issued pursuant to outstanding
stock option entitlements. 1,000,000 Class B Shares may be
issued pursuant to an option granted to CIBC World Markets
Inc. and 3,293,077 Class B Shares may be issued pursuant to
the exercise of convertible debentures. Except as described in
the immediately preceding sentence, there are no options,
warrants, conversion privileges or other rights, agreements,
arrangements or commitments obligating Corporation or any
Subsidiary to issue or sell any shares of the capital of
Corporation or any of its Subsidiaries or securities or
obligations of any kind
-23-
convertible into or exchangeable for any shares of the capital
of Corporation, any Subsidiary or any other person, nor,
except as disclosed to the Offeror prior to the execution of
this Agreement, is there outstanding any stock appreciation
rights, phantom equity or similar rights, agreements,
arrangements or commitments based upon the book value, income
or any other attribute of Corporation or any Subsidiary.
(e) QSC DOCUMENTS. The Corporation is a "reporting issuer" under
the SECURITIES ACT (Quebec), as amended (the "SECURITIES ACT")
and is not in default of any material requirements of any
applicable securities laws, and no delisting, suspension of
trading in or cease trading order with respect to the Common
Shares or any other securities of the Corporation is pending
or threatened.
(f) FINANCIAL STATEMENTS. As of their respective dates, the
consolidated financial statements of Corporation included in
any documents filed with the Quebec Securities Commission on a
non-confidential basis (the "QSC Documents") complied as to
form in all material respects with the regulations of the QSC
with respect thereto, had been prepared in accordance with
generally accepted accounting principles applied on a
consistent basis during the periods involved (except as may
otherwise be indicated in the notes thereto) and fairly
presented the consolidated financial position of Corporation
and its Subsidiaries as of the dates thereof and the
consolidated results of their operations and cash flows for
the periods then ended (subject, in the case of unaudited
quarterly statements, to normal year-end audit adjustments).
(g) ABSENCE OF CERTAIN CHANGES OR EVENTS; NO UNDISCLOSED MATERIAL
LIABILITIES. Except as disclosed to the Offeror prior to the
execution of this Agreement and except as has been publicly
disclosed in any document filed with the Quebec Securities
Commission (the "QSC"), since December 31, 1998 (i) the
Corporation and the Subsidiaries have conducted their
respective businesses only in the ordinary course, (ii) no
liability or obligation of any nature (whether absolute,
accrued, contingent or otherwise) material to the Corporation
or any Subsidiary has been incurred, and (iii) there has not
been any material adverse change in the financial conditions,
results of operations or businesses of the Corporation or any
Subsidiary.
(h) REAL PROPERTY; OTHER ASSETS. Except as disclosed to the
Offeror prior to the execution of this Agreement, the
Corporation and its Subsidiaries have good and valid title to
the real property interests and to each other asset reflected
in the latest balance sheet of Corporation included in the
Filed QSC Documents (other than as disclosed in the Filed QSC
Documents, or any such other asset disposed of or consumed in
the ordinary course of
-24-
business) free and clear of any and all hypothecs, mortgages,
liens, charges, encumbrances and adverse claims except (A)
those reflected or reserved against in the latest balance
sheet of Corporation included in the Filed QSC Documents, (B)
taxes not in default and payable without penalty and interest,
and (C) other Liens that individually or in the aggregate
would not have a material adverse effect on Corporation
(collectively, "Permitted Liens").
(j) YEAR 2000 COMPLIANCE.
(i) Corporation presently expects that all reprogramming,
remediation and testing of Information Systems and
Equipment (as defined below) that is required to make
it in all material respects Year 2000 Compliant will
be completed no later than December 31, 1999. Except
as otherwise disclosed in the Filed QSC Documents,
the cost of all such reprogramming, remediation and
testing, together with the reasonably foreseeable
consequences of any reasonably foreseeable failure of
such Information Systems and Equipment to be or
timely become Year 2000 Compliant will not have,
individually or in the aggregate, a material adverse
effect on Corporation.
(ii) (A) As used in respect of Information Systems and
Equipment, "Year 2000 Compliant" means that such
Information Systems and Equipment will not cease to
properly function, produce erroneous results or
otherwise experience diminished performance or
functionality when presented with or when
calculating, comparing, sequencing or otherwise
processing date data before, during and after the
year 2000 and (B) "Information Systems and Equipment"
means all computer hardware, firmware, software and
information processing systems and all equipment
containing embedded microchips that is used by
Corporation or any of its Subsidiaries in the conduct
of their respective business.
(j) INTELLECTUAL PROPERTY. Other than as disclosed in writing to
the Offeror all of the material patents, registered trademarks
and service marks, trade names and licenses owned or used by
the Corporation at the date of this Agreement are in good
standing, valid and adequate to permit the Corporation and its
Subsidiaries to conduct its business as presently conducted.
-25-
(k) MATERIAL CONTRACTS. There have been made available to Offeror
and its representatives true, correct and complete copies of
all of the material contracts to which Corporation or any of
its Subsidiaries is a party or by which any of them is bound
(collectively, the "Material Contracts"). None of Corporation
or its Subsidiaries or, to the knowledge of Corporation, any
other party, is in material breach or default under any
Material Contract.
(l) LITIGATION, ETC. As of the date hereof, except as disclosed in
the Filed QSC Documents or disclosed to the Offeror prior to
the execution of this Agreement, (i) there is no suit, claim,
action, proceeding or investigation pending or, to the
knowledge of Corporation, threatened against Corporation or
any of its Subsidiaries before any court or other Governmental
Entity, and (ii) neither Corporation nor any of its
Subsidiaries is subject to any outstanding order, writ,
judgment, injunction, decree or arbitration order or award
that, in any such case described in clauses (i) and (ii), has
had or would reasonably be expected to have, individually or
in the aggregate, a material adverse effect on Corporation or
which could prevent or materially delay the consummation of
the transaction contemplated herein. As of the date hereof,
there are no suits, claims, actions, proceedings or
investigations pending or, to the knowledge of Corporation,
threatened, seeking to prevent, hinder, modify or challenge
the transactions contemplated by this Agreement.
(m) COMPLIANCE WITH APPLICABLE LAW. Except as disclosed in the
Filed QSC Documents or disclosed to the Offeror prior to the
execution of this Agreement, Corporation and its Subsidiaries
are in material compliance with all applicable statutes, law,
ordinances, rules, certificates, orders, grants, regulations
and other authorization of any Governmental Entity, except for
non-compliance which would not reasonably be expected to have,
individually or in the aggregate, a material adverse effect on
Corporation.
(n) ENVIRONMENTAL LAWS.
a. Definitions. For purposes of this Agreement, the
following definitions shall apply:
(i) The term "ENVIRONMENT" shall mean all
components of the earth, including, without
limitation, air (and all layers of the
atmosphere), land (and all surface and
subsurface soil, underground spaces and
cavities and all land submerged under water)
and water (and all surface and underground
water), organic and inorganic matter and
living organisms,
-26-
and the interacting natural systems that
include components referred to above in this
definition of "ENVIRONMENT";
(iii) The terms "ENVIRONMENTAL LAWS" shall mean
any and all applicable federal, provincial,
municipal or local statutes, legislations,
codes, ordinances, decrees, rules,
regulations, judicial or departmental or
regulatory judgments, orders, decisions,
rulings or awards, policies and guidelines
having force of law, (hereafter "LAWS")
pertaining to the Environment, health and
safety matters or conditions, Hazardous
Substances, pollution or protection of the
Environment, including, without limitation,
Laws relating to: (i) on site or off-site
contamination; (ii) occupational health and
safety; (iii) chemical substances or
products; (iv) Release of pollutants,
contaminants, chemicals or other industrial,
toxic or radioactive substances or Hazardous
Substances into the Environment; (v) the
manufacture, processing, distribution, use,
treatment, storage, transport, packaging,
labelling, sale, recycling, disposal,
destruction, incineration, burial,
advertising, display or handling of
Hazardous Substances; and (vi) any
preventive measures, Remedial Actions and
notifications in connection with the
foregoing;
(iv) The terms "HAZARDOUS SUBSTANCE" shall mean
any substance, whether waste, liquid,
gaseous or solid matter, fuel,
micro-organism, ray, odour, radiation,
energy, vector, plasma and organic or
inorganic matter, which is or is deemed to
be, alone or in any combination, hazardous,
waste, hazardous waste, toxic, a pollutant,
a deleterious substance, a contaminant or a
source of pollution or contamination under
any Environmental Laws, whether or not such
substance is defined as hazardous under
Environmental Laws;
(v) The term "RELEASE" shall mean to release,
spill, leak, discharge, dispose, pump, pour,
emit, empty, inject, leach, dump or allow to
escape;
(vi) The terms "REMEDIAL ACTION" shall mean any
compelled action that is necessary to: (i)
clean up, remove, treat or in any other way
deal with Hazardous Substances in the
Environment; (ii) prevent any Release of
Hazardous Substances where such Release
would violate any Environmental Laws or
would endanger or threaten to
-27-
endanger public health or welfare or the
Environment; or (iii) perform remedial
studies, investigations, restoration, and
post-remedial studies, investigations and
monitoring on, about or in connection with
the Immoveables or any immoveable or real
property owned, used or leased by the
Offeror.
b. Except as previously disclosed to the Offeror,
(i) Each of the Corporation and its
Subsidiaries, has been, and is being
operated, and their assets are being used in
material compliance with all Environmental
Laws, and each of the Corporation and its
Subsidiaries holds and their business has
been conducted in material compliance with
all environmental permits, certificates of
authorization, registrations and other
authorizations (collectively, "ENVIRONMENTAL
PERMITS") required under Environmental Laws,
and all such Environmental Permits are in
full force and effect, except where failure
to hold and maintain in full force and
effect any such Environmental Permits would
not have a material adverse effect on the
Corporation, any of its Subsidiaries or
their business;
(ii) Each of the Corporation and its Subsidiaries
has not caused or permitted to cause, and
has no knowledge of any material Release of
Hazardous Substances at, on or under any of
the real estates owned or leased by any of
the Corporation or its Subsidiaries which
would require Remedial Action, or from any
real estate owned or operated by third
parties, but with respect to which any of
the Corporation or any of its Subsidiaries
is alleged to have material liability and
which could have a material adverse effect
on the Corporation, any of its Subsidiaries
or their business;
(iii) No Hazardous Substances have been
transported or arranged for the
transportation of any such Hazardous
Substances to any location which is not
listed and duly authorized pursuant to
Environmental Laws, and which would lead to
material claims against any of the
Corporation or its Subsidiaries for Remedial
Action.
(o) TAXES. Except as previously disclosed to the Offeror:
-28-
(i) Except where the failure to do so would not
reasonably be expected to have, individually
or in the aggregate, a material adverse
effect on Corporation, each of Corporation
and each subsidiary of Corporation (and any
affiliated or unitary group of which any
such person was a member) has (A) timely
filed all federal, provincial, local and
foreign returns, declarations, reports,
estimates, information returns and
statements ("Returns") required to be filed
by or for it in respect of any Taxes (as
hereinafter defined) and has caused such
Returns as so filed to be true, correct and
complete, (B) established reserves that are
reflected in Corporation's most recent
financial statements included in the Filed
QSC Documents and that as so reflected are
adequate for the payment of all Taxes not
yet due and payable with respect to the
results of operations of Corporation and its
Subsidiaries through the date hereof, and
(C) timely withheld and paid over to the
proper taxing authorities all Taxes and
other amounts required to be so withheld and
paid over. Each of Corporation and each
subsidiary of Corporation has timely paid
all Taxes that are shown as being due on the
Returns referred to in the immediately
preceding sentence. There have been made
available to Offeror and its representatives
true, correct and complete copies of all
Returns filed by or for Corporation and each
subsidiary of Corporation since 1994 in
respect of any Taxes.
(ii) As of the date hereof, (A) there has been no
taxable period since 1992 for which a Return
of Corporation or any of its Subsidiaries
has been or is being examined by the
Minister of Revenue of Quebec or any other
federal, provincial, local or foreign taxing
authority, and (B) except for alleged
deficiencies which have been finally and
irrevocably resolved, Corporation has not
received formal or informal notification
that any deficiency for any Taxes, the
amount of which could reasonably be expected
to have, individually or in the aggregate, a
material adverse effect on Corporation, has
been or will be proposed, asserted or
assessed against Corporation or any of its
Subsidiaries by any federal, provincial,
local or foreign taxing authority or court
with respect to any period; (C) No waiver or
extension of any statute of limitations in
effect with respect to Taxes or Returns of
the Corporation or any subsidiary.
-29-
For purposes of this Agreement, "Taxes" shall mean all
federal, provincial, local, foreign income, property, sales,
excise, goods and services, employment, payroll, franchise,
withholding and other taxes, tariffs, charges, fees, levies,
imposts, duties, licenses, payroll or employee withholding
taxes or other assessments of every kind and description,
together with any interest and any penalties, additions to tax
or additional amounts imposed by any federal, state, local or
foreign taxing authority.
(r) EMPLOYEE PLANS. "Employee Plans" means all the employee
benefit, fringe benefit, supplemental unemployment benefit,
bonus, incentive, profit sharing, termination, change of
control, pension, retirement, stock option, stock purchase,
stock appreciation, health, welfare, medical, dental,
disability, life insurance and similar plans, programmes,
arrangements or practices relating to the current or former
employees, officers or directors of the Corporation
maintained, sponsored or funded by the Corporation, whether
written or oral, funded or unfunded, insured or self-insured,
registered or unregistered.
a. The Corporation has made available to the Offeror
true, correct and complete copies of all the Employee
Plans as amended as of the date hereof, together with
all summary plan descriptions and all material
correspondence with all relevant persons.
b. The Corporation may unilaterally amend or terminate,
in whole or in part, each Employee Plan, each subject
only to approvals required by laws and, with respect
to amendment or termination, the collective
agreements of the Corporation.
c. All contributions or premiums required to be paid by
the Corporation under the terms of each Employee Plan
or by laws have been made in a timely fashion in
accordance with laws and the terms of the Employee
Plans. The Corporation does not have any liability
(other than liabilities accruing after the date
hereof) with respect to any of the Employee Plans.
Contributions or premiums have been paid by the
Corporation when due.
d. No commitments to establish, improve or otherwise
amend any Employee Plan have been made except as
required by applicable laws or as disclosed prior to
the execution of this Agreement to the Offeror.
e. None of the Employee Plans is a pension plan.
-30-
f. All employee data necessary to administer each
Employee Plan has been made available by the
Corporation to the Offeror and is true and correct as
of the date of this Agreement and the Corporation
will notify the Offeror of any changes thereto.
g. None of the Employee Plans provide benefits to
retired employees or to the beneficiaries or
dependents of retired employees.
(q) LABOUR MATTERS. Other than as disclosed to the Offeror prior
to the execution of this Agreement, or except as set forth in
the Information Circular and Proxy Statement of the
Corporation dated February 23, 1999, neither the Corporation
nor any Subsidiary is a party to any written or oral policy,
agreement, obligation or understanding providing for severance
or termination payments to, or any employment agreement with,
any person.
(r) BROKERS. No broker, investment banker, financial advisor or
other person, other than CIBC World Markets Inc., the fees and
expenses of which will be paid by Corporation, is entitled to
any broker's, finder's, financial advisor's or other similar
fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on
behalf of Corporation.
(s) WRITTEN OPINION OF FINANCIAL ADVISOR. Corporation has received
the opinion of CIBC World Markets Inc. on August 2, 1999 (a
true, correct and complete copy of which will be delivered to
Offeror by Corporation), to the effect that, based upon and
subject to the matters set forth therein and as of the date
thereof, the Price of the Offer to be received by the holders
of Common Shares in the Offer, is fair, from a financial point
of view, to such holders and such opinion has not been
withdrawn or modified.
(t) BOOKS AND RECORDs. The corporate records and minutes books of
Corporation and its Subsidiaries have been maintained
substantially in accordance with all applicable laws and are
complete and accurate in all material respects.
-31-
SCHEDULE "C"
CLASS A CLASS B OPTIONS TOTAL
SHARES SHARES
Placements Al-Vi Inc. 3,320,663 23,402 3,344,065
2330-3076 QBC. Inc. 2,653,486 2,653,486
Jean-Jacques Cossette 285,464 2,200 200,000 487,664
2954-7635 Quebec 173,650 233,100 406,750
Inc.
Viviane Cossette 8,204 200,000 208,204
Fernand Cossette 658,825 3,002 200,000 861,827
9008-6760 Quebec 385,064 2 385,066
Inc.
Marcel Cossette 235,245 235,245
Andre J. Lascelle 192,441 14,720 200,000 407,161
Pierre Moreau 200,000 500 150,000 350,500
2700638 Canada Inc. 56,350 56,350
Norman Farrell 200,020 150,000 350,020
Lock-up Group 8,369,412 276,926 1,100,000 9,746,338