Exhibit 2.2
AMENDED AND RESTATED LOCK-UP AGREEMENT
LOUISIANA-PACIFIC CORPORATION
August 12, 1999
CONFIDENTIAL
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To the parties identified in Schedule "B" hereof
(the "Sellers")
c/o: Xxxx-Xxxxxxx Xxxxxxxx
0000 0xx Xxxxxx
Xxx x'Xx, Xxxxxx
X0X 0X0
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 and on August 2, 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 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;
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(d) the Offeror shall not 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;
(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
under the Offer;
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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
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(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
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or its 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;
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(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 Xx. Xxxx-Xxxxxxx
Xxxxxxxx on behalf of the Sellers in order to provide them with
an opportunity to comment; and
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(d) use its reasonable commercial efforts to file with the Director
of Investigation and Research appointed under the COMPETITION
ACT (Canada) the notice 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
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paid the Offeror by bank draft or wire transfer the sum of $29.8
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 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
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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
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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 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
000 Xxxxx Xxxx Xxxxx
Xxxxxxxx, Xxxxxx
XXX 00000
Attention: The Office of the General Counsel
Telecopier No. (000) 000-0000
with a copy to:
Stikeman, Xxxxxxx
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Suite 4000
0000 Xxxx Xxxx-Xxxxxxxx Xxxx.
Xxxxxxxx, Xxxxxx X0X 0X0
Attention: Xxxxxx X. Xxxxxxx
Telecopier No.: (000) 000-0000
(b) in the case of the Sellers, addressed as follows:
Xx. Xxxx-Xxxxxxx Xxxxxxxx
0000, 0xxx Xxxxxx
Xxx x'Xx, Xxxxxx
X0X 0X0
with a copy to:
Xxxxxxxxx Xxxxxx
Tour de la Bourse
000, Xxxxx Xxxxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx
X0X 0X0
Attention: Xxxxxxx Xxxxxx
Telecopier No.: (000) 000-0000
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 securities which may be declared in
respect of the Common Shares.
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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.
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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 5:00 p.m. (Montreal time) on August 12, 1999, failing which this offer
shall be null and void.
Yours truly,
Louisiana-Pacific Corporation
By: /s/ Xxxx Xxxxxxxxx
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Xxxx Xxxxxxxxx
Agreed and accepted this 12th day of August 1999
PLACEMENTS AL-VI INC.
By: /s/ X.X. Xxxxxxxx
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0000-0000 XXX. INC.
By: /s/ X.X. Xxxxxxxx
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2954-7635 QUEBEC INC.
By: /s/ X.X. Xxxxxxxx
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By: /s/ X.X. Xxxxxxxx
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Xxxx-Xxxxxxx Xxxxxxxx
By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
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By: /s/ Xxxxxxx Xxxxxxxx
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Xxxxxxx Xxxxxxxx
By: /s/ Andre' X. Xxxxxxxx
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Xxxxx X. Xxxxxxxx
2700638 CANADA INC.
By: /s/ Xxxxxx Xxxxxx
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By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
By: /s/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
9008-6760 QUEBEC INC.
By: /s/ Xxxxxx Xxxxxxxx
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By: /s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
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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. $33.00 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 Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976 shall have expired or been
earlier terminated;
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(d) any other requisite regulatory approvals or requirements
(including without 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
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(i) any representation or warranty of any of the Sellers and the
Corporation in this 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
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shares of a Holdco shall reimburse the Offeror for any additional costs
that will be incurred as a result of the acquisition of such Holdco.
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SCHEDULE "B"
CLASS A SHARES CLASS B SHARES OPTIONS TOTAL
Placements Al-Vi Inc. 3,320,663 23,402 3,344,065
0000-0000 XXX. Inc. 2,653,486 2,653,486
Xxxx-Xxxxxxx Xxxxxxxx 285,464 2,200 200,000 487,664
0000-0000 Xxxxxx Inc. 173,650 233,100 406,750
Xxxxxxx Xxxxxxxx 8,204 200,000 208,204
Xxxxxxx Xxxxxxxx 658,825 3,002 200,000 861,827
0000-0000 Xxxxxx Inc. 385,064 2 385,066
Xxxxxx Xxxxxxxx 235,245 235,245
Xxxxx X. Xxxxxxxx 192,441 14,720 200,000 407,161
Xxxxxx Xxxxxx 200,000 500 150,000 350,500
2700638 Canada Inc. 56,350 56,350
Xxxxxx Xxxxxxx 200,020 150,000 350,020
Lock-up Group 8,369,412 276,926 1,100,000 9,746,338
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