Exhibit 10.2
AMENDED AND RESTATED LOCK-UP AGREEMENT
LOUISIANA-PACIFIC CORPORATION
August 2, 1999
CONFIDENTIAL
To the parties identified in Schedule "B" hereof
(the "Sellers")
c/o: Jean-Jacques Cossette
1200 1re Avenue
Val d'Or, Quebec
J9P 1Z5
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 Lock-Up Agreement dated
June 25, 1999 as amended on July 21, 1999 between the Offeror and the Sellers.
This Agreement also sets out the terms and conditions of the agreement by each
of the Sellers to deposit irrevocably and unconditionally under the Offer that
number of Common Shares set forth opposite their respective names on Schedule
"B" hereof, including that number of Common Shares to be issued pursuant to the
exercise of the options referred to therein (in the aggregate, the "Securities",
and, individually, "its portion of the Securities"), and sets out the
obligations and commitments of the Sellers in connection therewith.
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) of the Support Agreement (as defined
-2-
hereunder) 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 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 3(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
-3-
CAAFS held by the Corporation or 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
Corporation and the Offeror whereby the Corporation agreed to
support the Offer, is not in full force and effect (the
"Support Agreement");
(f) any representation or warranty of any of the Sellers in this
Agreement or any representation or warranty of the Corporation
in the Support 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 this
Agreement and the Support 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. Acceptance
2.1 DEPOSIT. Subject to the terms and conditions hereof, each of the
Sellers hereby irrevocably agrees to deposit its portion of the
Securities, together with a completed and executed letter of
transmittal, under the Offer as soon as practicable after the Offer has
been made and, in any event, on or before the third business day after
the date that the Offer is made, except that all of the Common Shares
issuable upon the exercise of the options listed in Schedule B may be
deposited no later than twenty-four (24) hours prior to the expiry of
the Offer.
2.2 NON-WITHDRAWAL. Each of the Sellers hereby irrevocably agrees not to
withdraw or take any action to withdraw any of its portion of the
Securities following their deposit under the Offer, notwithstanding any
statutory rights or other rights under the terms of the Offer or
otherwise which it might have, unless this Agreement is terminated in
accordance with its terms prior to the taking up of the Securities
-4-
under the Offer;
3. Representations and Warranties
3.1 REPRESENTATIONS AND WARRANTIES OF THE SELLERS. Each of the Sellers hereby
represents and warrants that:
(a) it is a corporation duly incorporated or created and validly
existing under the laws of its jurisdiction of incorporation
or creation, if applicable; it has the corporate or other
power, if applicable, and capacity and has received all
requisite approvals, if applicable, to enter into this
Agreement and to complete the sale of its portion of the
Securities pursuant to the Offer; this Agreement has been duly
executed and delivered by the Sellers and is a valid and
binding agreement enforceable by the Offeror against it in
accordance with its terms, subject to the usual exceptions as
to bankruptcy and the availability of equitable remedies;
(b) it is and, upon the deposit of its portion of the Securities
under the Offer, will be the sole legal and beneficial owner
of such Securities and will have the exclusive right to vote
and dispose thereof as provided in this Agreement and it is
not a party to, bound or affected by or subject to, any
provision of its constating documents if applicable, or any
statute, regulation, judgment, order, decree or law which
would be violated, contravened, breached by, or under which
default would occur as a result of, the execution and delivery
of this Agreement;
(c) the portion of the Securities to be acquired by the Offeror
from it pursuant to the Offer will be acquired by the Offeror
with good and marketable title, free and clear of any and all
hypothecs, mortgages, liens, charges, proxies, voting
agreements, encumbrances and adverse claims, save for the
charges which will be released on or before the Effective
Date;
(d) other than as disclosed to the Offeror prior to the execution
of this Agreement, there does not exist any agreement,
understanding or commitment giving rise to any material
obligations, financial or otherwise, on the part of the
Corporation or any of its Subsidiaries to such Seller or any
of its affiliates (or any associates or insiders of any of the
foregoing);
(e) other than as disclosed to the Offeror prior to the execution
of this Agreement, the execution and delivery of this
Agreement and the fulfillment of the terms hereof and thereof
by it do not and will not result in a breach of (a) its
constating documents, if applicable, or (b) any agreement or
instrument to which it is a party or by which it is
contractually bound which would have a material adverse effect
upon it; and
-5-
(f) to the best of their knowledge, the Corporation has not
omitted to disclose to the Offeror any information concerning
the Corporation, its business, assets, operations, capital,
affairs, financial conditions and prospects that a purchaser
would consider material in circumstances similar to the
transaction contemplated herein.
3.2 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 exceptions as
to bankruptcy and the availability of equitable remedies.
4. Covenants of the Sellers
4.1 GENERAL. Each of the Sellers 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 Sellers pursuant to Section 6.1, it will:
(a) not take any action of any kind which may reduce the
likelihood of success of or delay the completion of the Offer,
including but not limited to any action that the Corporation
would be prohibited from taking under the first sentence of
Section 3.2 (f) of the Support Agreement without regard to the
proviso thereof, and will not participate in any negotiations
regarding, or otherwise cooperate in any way with or assist or
participate in:
(i) the direct or indirect acquisition or
disposition of all or any Common Shares or
any other securities of the Corporation or
its
-6-
Subsidiaries (except as expressly provided
in this Agreement); or
(ii) except as expressly permitted by this
Agreement or as previously approved in
writing by the Offeror, any amalgamation,
merger, sale of any material part of the
Corporation's or its Subsidiaries' assets,
take-over bid, plan of arrangement,
reorganization, recapitalization,
liquidation or winding-up of, or other
business combination or similar transaction
involving the Corporation or any of its
Subsidiaries;
(b) notify the Offeror forthwith upon becoming aware of any
Acquisition Proposal (as defined in Section 3.2(f) of the
Support Agreement) and inform the Offeror of all
information (including the identity of any prospective
offeror) known to the Seller at that time regarding such
proposal;
(c) cause the voting rights attaching to its portion of the
Securities to be exercised to oppose any proposed action by:
(i) the Corporation, its shareholders or others which might
reasonably be regarded as being directed towards or likely to
prevent or delay the successful completion of the Offer, or
(ii) the Corporation or its shareholders to materially change
the business, assets, operations, capital, affairs, financial
conditions, licenses, permits, rights or privileges, whether
contractual or otherwise, or prospects of the Corporation and
its Subsidiaries taken as a whole which in the judgment of the
Offeror, acting reasonably, could individually, or in the
aggregate, adversely affect the value of the Common Shares to
the Offeror, provided that nothing in this Agreement shall
require the Sellers to request any of their directors or
officers who may be a director of the Corporation or any
Sellers who are themselves a director to take any action or to
refrain from taking any action as a director of the
Corporation or to act otherwise than in accordance with his or
her fiduciary duties as a director of the Corporation;
(d) use its reasonable commercial efforts to assist the Offeror to
successfully complete the acquisition of Common Shares,
including diligently pursuing all requisite regulatory
approvals and co-operating with the Offeror in making all
requisite regulatory filings and giving evidence in relation
thereto;
(e) promptly advise the Offeror orally and in writing of any
material change (other than a change in the market conditions
or price of O.S.B. known to the Seller in the condition
(financial or otherwise), properties, assets, liabilities,
operations, business or prospects of the Corporation or any of
its Subsidiaries;
-7-
(f) promptly notify the Offeror upon any representation or
warranty of it or the Corporation contained in this Agreement
becoming untrue or incorrect in any material respect during
the period commencing on the date hereof and expiring at the
time of expiry of the Offer, and for the purposes of this
provision, each representation and warranty shall be deemed to
be given at and as of all times during such period
(irrespective of any language which suggests that it is only
being given as at the date hereof);
(g) cause its nominees on the board of directors of the
Corporation and its Subsidiaries, and 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 Securities; and
(h) use its reasonable best efforts to cause the Corporation to
comply with its covenants contained in the Support Agreement.
4.2 OPTIONS. Each of the Sellers hereby covenants to exercise all options
set out in Schedule B next to his name, if any, at least twenty-four
(24) hours before the expiry of the Offer or to have such options
cancelled.
4.3 AMENDMENT TO LOCK-UP AGREEMENT. In the event that the Corporation
enters into an amendment to the Support Agreement in accordance with
section 3.2(k) thereof, each of the Sellers hereby covenants to enter
into an amendment to this Agreement that shall reflect the terms of
such amended Support Agreement.
5. Covenants of the Offeror
5.1 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;
(c) provide copies of drafts of the Offer to Mr. Jean-Jacques
Cossette on behalf of the Sellers in order to provide them
with an opportunity to comment; and
(d) use its reasonable commercial efforts to file with the
Director of Investigation and Research appointed under the
COMPETITION ACT (Canada) the notice
-8-
required under Section 123 of said act prior to the expiry of
the delay referred to in Section 1.1 hereof, notwithstanding
the fact that the Offer may have been made prior thereto.
5.2 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. Pursuant to the
Support Agreement, the Corporation has confirmed and agreed that the
Confidentiality Agreement will be null and void in the event that the
Offeror takes up and pays for Common Shares (including the Securities)
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.
6. Termination
6.1 TERMINATION BY SELLERS. All of the Sellers, when not in default in
performance of their respective material obligations under this
Agreement, may, without prejudice to any other rights, terminate their
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 Securities on or
prior to December 31, 1999;
(d) Common Shares deposited under the Offer (including the
Securities) 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 of
the Support Agreement 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").
-9-
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 Sellers and if:
(a) the Offeror has not taken up and paid for the Securities 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 this
Agreement or the Support Agreement.
6.3 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 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 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 Support 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 Support 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 Sellers for any default in performance by
the assignee. This Agreement shall not otherwise be assignable by any
party without the consent of the others.
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 Sellers and 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 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 the representations and warranties
contained in paragraphs 3.1((A)) THROUGH ((E)), INCLUSIVE, which shall
survive indefinitely, and in the case of fraud. 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
any Seller 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 and the Sellers would not agree to the deposit of the
Securities under the Offer 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. Each of the Sellers 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, and none of
such costs and expenses shall be borne by the Corporation or its
Subsidiaries. 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. The Sellers
shall bear all costs and expenses of obtaining the necessary consents,
and shall indemnify and hold harmless the Offeror, the Corporation and
its Subsidiaries against all
-11-
claims in respect thereof.
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" and "B" hereto shall for all purposes form an
integral part 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:
-12-
Stikeman, Elliott
Suite 4000
1155 West Rene-Levesque Blvd.
Montreal, Quebec H3B 3V3
Attention: Pierre A. Raymond
Telecopier No.: (514) 397-3222
(b) in the case of the Sellers, addressed as follows:
Mr. Jean-Jacques Cossette
1200, 1ere Avenue
Val d'Or, Quebec
J9P 1Z5
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 any of
the Sellers if any Seller 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 any Seller prove to be incorrect or
untrue in any material respect. Furthermore, if any Seller shall
terminate its obligations under this Agreement as provided herein, any
obligations of the Offeror may be terminated with respect to all
Sellers at the Offeror's written election.
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
-13-
securities which may be declared in respect of the Common Shares.
8.3 WAIVERS AND RELEASES. Following the taking up of Securities under the
Offer, the Sellers hereby agree that they shall be deemed to have
waived all pre-emptive rights or other rights to acquire securities of
the Corporation or any subsidiary, and to have agreed to release the
Corporation and its Subsidiaries from all claims, obligations or
liabilities whatsoever.
------------
-14-
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
PLACEMENTS AL-VI INC.
By: /s/ J. J. Cossette
------------------------------------
2330-3076 QBC. INC.
By: /s/ J. J. Cossette
------------------------------------
2954-7635 QUEBEC INC.
By: /s/ J. J. Cossette
------------------------------------
By: /s/ J. J. Cossette
------------------------------------
Jean-Jacques Cossette
By: /s/ Viviane Cossette
------------------------------------
Viviane Cossette
-15-
By: /s/ Fernand Cossette
------------------------------------
Fernand Cossette
By: /s/ Andre J. Lascelle
------------------------------------
Andre J. Lascelle
2700638 CANADA INC.
By: /s/ Pierre Moreau
------------------------------------
By: /s/ Pierre Moreau
------------------------------------
Pierre Moreau
By: /s/ Norman Farrell
------------------------------------
Norman Farrell
9008-6760 QUEBEC INC.
By: /s/ Marcel Cossette
------------------------------------
Marcel Cossette
By: /s/ Marcel Cossette
------------------------------------
Marcel Cossette
-16-
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
-17-
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 a
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 or 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 this
-18-
Agreement and in the Support 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 Support
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 Instalment 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
-19-
be incurred as a result of the acquisition of such Holdco.
-20-
SCHEDULE "B"
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