<PAGE>
As filed with the Securities and Exchange
Commission on September 15, 1994 (Registration No. 33-54859)
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------------------
AMENDMENT NO. 1 TO FORM S-3
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
--------------------
LOUISIANA-PACIFIC CORPORATION
(Exact name of registrant as specified in charter)
Delaware 93-0609074
(State or other jurisdiction of (IRS Employer Identification No.)
incorporation or organization)
111 S.W. Fifth Avenue
Portland, Oregon 97204
Telephone (503) 221-0800
(Address and telephone number of principal executive offices)
WILLIAM L. HEBERT
Treasurer
LOUISIANA-PACIFIC CORPORATION
111 S.W. Fifth Avenue
Portland, Oregon 97204
Telephone (503) 221-0800
(Name, address, and telephone number of agent for service)
- --------------------
Copies to:
Miller, Nash, Wiener, Hager & Carlsen
111 S.W. Fifth Avenue
Portland, Oregon 97204-3699
Attn: Kenneth W. Hergenhan
(503) 224-5858
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Approximate date of commencement of proposed sale to the public: From
time to time after the effective date of this registration statement as
determined in light of market conditions and other factors.
---------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. [ X ]
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
registration statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this registration
statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
<PAGE>
PROSPECTUS
LOUISIANA-PACIFIC CORPORATION
750,000 SHARES
_________________________
COMMON STOCK
$1 Par Value
__________________________
This Prospectus covers 750,000 shares (the "Shares") of common stock, $1
par value (the "Common Stock"), of Louisiana-Pacific Corporation ("Company")
which may be offered for sale from time to time by the selling stockholders
(the "Selling Stockholders") identified under "Selling Stockholders" herein.
The Company will receive no part of the proceeds of any such sales.
Underwriting discounts and commissions will be paid by the Selling
Stockholders. Costs of registration are being borne by the Company.
See "Plan of Distribution" herein for a description of the manner
in which the Shares may be sold.
The Selling Stockholders and any broker-dealers who may participate
in a sale of the Shares may be deemed to be statutory underwriters within the
meaning of the Securities Act of 1933, as amended (the "Securities Act"), and
the commissions paid or discounts or concessions allowed to any of such
broker-dealers by any person, as well as any profits received on the resale
of the Shares if any of such broker-dealers should purchase any Shares as a
principal, may be deemed to be underwriting discounts and commissions under
the Securities Act.
The last reported sale price of Common Stock on the New York Stock
Exchange on September____, 1994, was $______ per share.
__________________________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION NOR HAS THE SECURITIES AND EXCHANGE COMMISSION
OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION
TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this Prospectus is September ___, 1994
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934 (the "Exchange Act") and in accordance
therewith files reports and other information with the Securities and
Exchange Commission (the "Commission"). Reports, proxy statements and other
information filed by the Company can be inspected and copied at the public
reference facilities maintained by the Commission at 450 Fifth Street, N.W.,
Washington, D.C.; 500 West Madison Street, Chicago, Illinois; and 7 World
Trade Center, New York, New York. Copies of such material can be obtained
from the Public Reference Section of the Commission at 450 Fifth
Street, N.W., Washington, D.C. 20549, at prescribed rates.
Reports, proxy statements and other information concerning the Company
can be inspected at the offices of the New York Stock Exchange, 20 Broad
Street, New York, New York 10005, on which the Common Stock is listed.
This Prospectus constitutes part of a registration statement on
Form S-3 (together with all amendments and exhibits, the "Registration
Statement") filed by the Company with the Commission under the Securities Act
of 1933, as amended. This Prospectus does not contain all of the information
included in the Registration Statement, certain parts of which are omitted in
accordance with the rules and regulations of the Commission. Reference is
made to the Registration Statement for further information with respect to
the Company and the Shares.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company incorporates herein by reference its annual report on Form
10-K for the year ended December 31, 1993, its quarterly reports on Form 10-Q
for the quarters ended March 31, 1994, and June 30, 1994, and its current
report on Form 8-K dated July 27, 1994, including the description of the
Common Stock contained in Exhibit 99 to the current report.
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14
or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Common Stock to which this
Prospectus relates shall be deemed to be incorporated by reference into this
Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of any such
person, a copy of any or all the foregoing documents incorporated by
reference herein (other than exhibits to such documents which are not
specifically incorporated by reference in such documents). Requests should
be directed to Pamela A. Selis, Director, Corporate Communications,
Louisiana-Pacific Corporation, 111 S.W. Fifth Avenue, Portland, Oregon 97204,
telephone (503) 221-0800.
<PAGE>
THE COMPANY
The Company is a major forest products company which manufactures
lumber, pulp, structural and other panel products, hardwood veneers, windows
and doors and cellulose insulation. It operates 129 plants, mills,
distribution centers in 27 U.S. states, Mexico and three Canadian provinces
and has approximately 13,000 employees.
The Company's principal executive offices are located at 111 S.W. Fifth
Avenue, Portland, Oregon 97204, and its telephone number is (503) 221-0800.
SELLING STOCKHOLDERS
The following table sets forth the name of each Selling Stockholder, the
amount of Common Stock owned by such Selling Stockholder at the date of this
Prospectus, the number of Shares to be offered by such Selling Stockholder
and the amount of Common Stock to be owned by such Selling Stockholder after
completion of the offering assuming all the Shares are sold. At the date of
this Prospectus, the Selling Stockholders own in the aggregate less than 1%
of the outstanding Common Stock.
<TABLE>
<CAPTION>
----------------Shares of Common Stock-----------------
To Be Owned
Presently Owned To Be Offered After Offering
_______________ _____________ ______________
<S> <C> <C> <C>
Jerry M. Long and
Lois Long 439,121 439,121 0
Bradford H. Crozier 30,189 30,189 0
Peter J. Palmer 92,691 92,691 0
Sidney Carrie and
Betty Carrie 63,673 63,673 0
Robert L. Maes and
Carole J. Maes 63,673 63,673 0
Liccardo, Rossi, Sturges
& McNeil, APLC 37,500 37,500 0
Edward W. Dougherty 23,153 23,153 0
</TABLE>
On July 29, 1994, a subsidiary of the Company merged into Creative
Point, Inc., a California corporation ("Creative Point"). As a result of the
merger, Creative Point became a wholly owned subsidiary of the Company and
the stock of Creative Point outstanding immediately prior to the merger, all
of which was held by the Selling Stockholders, was converted into the Shares.
Jerry M. Long, Peter J. Palmer and Edward W. Dougherty who served as Chairman
and Chief Executive, Vice President, Engineering, and Vice President, Sales,
respectively, of Creative Point prior to the merger have continued in such
offices since the merger.
PLAN OF DISTRIBUTION
The shares may be offered from time to time by the Selling Stockholders
on the New York Stock Exchange or, with the Company's prior consent, on other
stock exchanges on which the Common Stock may then be traded or in the over-
the-counter market, at prices and at terms then prevailing, or in negotiated
transactions or otherwise.
MISCELLANEOUS
No person has been authorized to give any information or to make any
representation other than those contained in this Prospectus in connection
with this offering and, if given or made, such information or representation
must not be relied upon as having been authorized by the Company or any
Selling Stockholder. This Prospectus does not constitute an offer to sell or
a solicitation of an offer to purchase any of the Shares in any jurisdiction
to any person to whom such offer would be unlawful. Neither the delivery of
this Prospectus nor any sale made hereunder shall, under any circumstances,
create any implication that the information herein is correct as of any time
subsequent to the date hereof or that there has been no change in the affairs
of the Company since such date.
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Registration fee . . . . . . . . . . . . $ 8,228
Accounting services. . . . . . . . . . . 2,000*
Legal services . . . . . . . . . . . . . 7,000*
Miscellaneous. . . . . . . . . . . . . . 772*
_________
Total. . . . . . . . . . . . . . . . $ 18,000*
______________________
*Estimated
Item 15. Indemnification of Directors and Officers.
Indemnification
Section 174 of the Delaware General Corporation Law ("Law") provides
that any director against whom a claim shall be successfully asserted under
said section for an unlawful payment of a dividend or an unlawful stock
purchase or redemption shall be entitled to be subrogated to the rights of
the corporation against stockholders who received the dividend on, or assets
for the sale or redemption of, their stock with knowledge that the same was
unlawful. Said section also provides that any such director shall be
entitled to contribution from the other directors who voted for or concurred
in the unlawful dividend, stock purchase, or redemption.
The registrant's certificate of incorporation and bylaws provide
that the registrant shall indemnify its officers and directors to the full
extent permitted by Section 145 of the Law, as amended from time to time.
Said Section 145 authorizes a corporation, under certain conditions, to
indemnify each person who is or was a director, officer, employee, or agent
of the corporation, or is or was serving at the request of the corporation as
a director, officer, employee, or agent of another corporation, partnership,
joint venture, trust, or other enterprise (including an employee benefit
plan), against certain expenses, judgments, fines, and amounts paid in
settlement actually and reasonably incurred by him in connection with any
threatened, pending, or completed action, suit, or proceeding, whether civil,
criminal, administrative, or investigative in which he was or is a party or
is threatened to be made a party by reason of being or having been such
director, officer, employee, or agent. In addition to the indemnification
authorized by Section 145 of the Law, the registrant's bylaws provide that
the registrant shall indemnify any natural person (not including non-employee
lawyers, accountants, actuaries, investment advisers, or arbitrators acting
in such capacity) who is or was serving in a fiduciary capacity with respect
to one of the registrant's employee benefit or welfare plans or who is or was
performing any service or duty on behalf of the registrant with respect to
such a plan, against all expenses, judgments, fines, and amounts paid in
settlement incurred by such person in connection with any action or
proceeding arising out of such service or performance, to the extent such
expenses and amounts are insurable but not covered by collectible insurance
or otherwise indemnified. Such indemnification shall not be available to any
person who participated in or knowingly failed to take appropriate action
with respect to any violation of any responsibilities or obligations imposed
upon fiduciaries by law, knowing such to be a violation of such
responsibilities or obligations.
Insurance
The registrant maintains directors' and officers' liability insurance
under which its officers and directors are insured against loss (as defined)
as a result of claims brought against them based upon their acts or omissions
in such capacities.
<PAGE>
Item 16. Exhibits.
The following exhibits are filed herewith:
Exhibit Description of Exhibit
- ------- ----------------------
4.A Articles Fourth, Fifth, Seventh, Eighth, Ninth, and
Tenth of the registrant's Restated Certificate of
Incorporation. Incorporated by reference to Exhibit
3(a) to the registrant's Form 10-Q report for the
second quarter of 1993.*
4.B Article I, Sections 2 and 11 of Article II, Article IV,
Article VII, and Article X of the registrant's Bylaws.
Incorporated by reference to Exhibit 3(b) to the
registrant's Form 10-Q report for the second quarter of
1993.*
4.C Rights Agreement as Restated as of February 3, 1991,
between the registrant and First Chicago Trust Company
of New York as Rights Agent. Incorporated by reference
to Exhibit 4 to the registrant's Form 8-K report dated
as of March 18, 1991.*
5 Opinion of Miller, Nash, Wiener, Hager & Carlsen.*
23.A Consent of Arthur Andersen & Co., independent public
accountants, dated August 1, 1994.*
23.B Consent of Miller, Nash, Wiener, Hager & Carlsen
(included in Exhibit 5).*
23.C Consent of Arthur Andersen LLP, independent public
accountants, dated September 14, 1994.
24 Power of attorney.*
99 Agreement and Plan of Merger (the "Agreement") dated
July 29, 1994, among the registrant, Creative Point,
Inc., and the shareholders of Creative Point, Inc. The
schedules to the Agreement are listed following the
signature page of the Agreement and have been omitted.
The registrant agrees to furnish supplementally to the
Commission a copy of any omitted schedules.
_________________
Other exhibits listed in Item 601 of Regulation S-K are not applicable.
* Previously filed.
Item 17. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act of 1933 ("Securities
Act");
(ii) To reflect in the prospectus any facts or
events arising after the effective date of the
registration statement (or the most recent post-
effective amendment thereof) which, individually or in
the aggregate, represent a fundamental change in the
information set forth in the registration statement;
(iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the registration statement or any material
change to such information in the registration
statement;
PROVIDED, HOWEVER, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if
the information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed by the registrant
pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
("Exchange Act") that are incorporated by reference in the registration
statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to
be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or 15(d) of the Exchange
Act (and, where applicable, each filing of an employee benefit plan's annual
report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the registration statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(h) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling
persons of the registrant pursuant to the provisions described in Item 15
above, or otherwise, the registrant has been advised that in the opinion of
the Securities and Exchange Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore, unenforceable.
In the event that a claim for indemnification against such liabilities (other
than the payment by the registrant of expenses incurred or paid by a
director, officer or controlling person of the registrant in the successful
defense of any action, suit or proceeding) is asserted by such director,
officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue. The undertaking of the registrant
in the preceding sentence does not apply to insurance against liability
arising under the Securities Act.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
amendment to registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Portland, State of
Oregon, on September 15, 1994.
LOUISIANA-PACIFIC CORPORATION
(Registrant)
By /s/ William L. Hebert
William L. Hebert
Treasurer
Pursuant to the requirements of the Securities Act of 1933, this
amendment to registration statement has been signed by the following persons
on September 15, 1994, in the capacities indicated.
Signature Title
/s/ Harry A. Merlo Chairman, President and Director (Principal
Harry A. Merlo* Executive Officer)
/s/ William L. Hebert Treasurer (Principal Financial Officer)
William L. Hebert
/s/ James F. Ellisor Controller, Operations (Principal Accounting
James F. Ellisor* Officer)
/s/ Pierre S. du Pont IV Director
Pierre S. du Pont IV*
/s/ James Eisses Executive Vice President and Director
James Eisses*
/s/ Bonnie Guiton Hill Director
Bonnie Guiton Hill*
/s/ Donald R. Kayser Director
Donald R. Kayser*
/s/ Francine I. Neff Director
Francine I. Neff*
<PAGE>
/s/ Ronald L. Paul Vice President-Operations and Director
Ronald L. Paul*
/s/ Charles E. Yeager Director
Charles E. Yeager*
* By William L. Hebert, as attorney-in-fact for each officer or director
after whose name an asterisk appears.
<PAGE>
<PAGE>
EXHIBIT 23.C
CONSENT OF INDEPENDENT PUBLIC ACCOUNTANTS
As independent public accountants, we hereby consent to the incorporation by
reference in this registration statement of our reports dated February 4,
1994 included in Louisiana-Pacific Corporation's Form 10-K for the year ended
December 31, 1993.
ARTHUR ANDERSEN LLP
Portland, Oregon,
September 14, 1994
<PAGE>
<PAGE>
EXHIBIT 99
AGREEMENT AND PLAN OF MERGER
AGREEMENT dated as of July 29, 1994, by and among LOUISIANA-PACIFIC
CORPORATION, a Delaware corporation ("L-P"), and CREATIVE POINT, INC., a
California corporation ("CP"), and the shareholders of CP named in Recital B
below (the "Shareholders").
RECITALS
A. CP is engaged in the design and marketing of injection-molded
plastic products. Its present product lines include storage containers for
audio cassette tapes and compact disks and computer CD ROM memory disks.
CP's products are manufactured for CP by third parties under contracts with
CP.
B. CP's issued and outstanding stock is owned by the Shareholders
as follows:
Shareholder Number of Shares
Jerry M. Long and Lois Long 285,000
Bradford H. Crozier 50,000
Peter James Palmer 50,000
Sidney Carrie and
Betty Carrie 45,000
Robert L. Maes and
Carole J. Maes 45,000
Liccardo, Rossi, Sturges
& McNeil, APLC 25,789
Edward Dougherty 15,000
Total 515,789
C. L-P and the Shareholders desire that L-P acquire CP by means of
a merger of CP with a subsidiary of L-P, which merger the parties intend to
qualify as a reorganization within the meaning of Section 368(a)(2)(E) of the
Internal Revenue Code of 1986, as amended (the "Code").
D. CP Acquisition Corp., an Oregon corporation ("Subsidiary"), is
a wholly-owned subsidiary of L-P organized July 25, 1994, for the purpose of
merging with CP as described in paragraph C above.
TERMS
In consideration of the premises and the covenants of the parties
set forth herein and subject to all the terms and conditions set forth
herein, the parties agree as follows:
1. MERGER
1.1 Agreement and Plan of Merger. The parties agree that Subsidiary
shall be merged into CP pursuant to an Agreement and Plan of Merger in the
form of Schedule 1.1 attached hereto (the "Plan"). The Merger shall be on
the terms set forth in the Plan and in this Agreement.
1.2 Manner of Merger. Subsidiary shall be merged into CP in accordance
with applicable provisions of the California General Corporation Law and the
Oregon Business Corporation Act. Upon the consummation of the merger of CP
and Subsidiary (the "Merger"):
(a) CP shall be the surviving corporation and shall continue its
corporate existence under the laws of the state of California;
(b) The separate corporate existence of Subsidiary shall
terminate;
(c) The presently issued and outstanding shares of the stock of CP
shall be converted into shares of the common stock of L-P as provided in
Section 1.4(a) hereof; and
(d) The presently issued and outstanding stock of Subsidiary shall
be converted into shares of the stock of CP as provided in Section
1.4(b) hereof.
1.3 Consummation. The consummation of the Merger shall take place on
the Effective Date (as hereinafter defined). The Merger shall be consummated
by filing:
(a) A copy of the Plan accompanied by an appropriate officer's
certificate with the secretary of state of the state of California; and
(b) Articles of Merger and a copy of the Plan with the secretary
of state of the state of Oregon.
The term "Effective Date" shall mean the date on which the filings referred
to in (a) and (b) above are made and the term "Effective Time" shall mean the
time when the second of the two filings is completed and the Merger becomes
effective. The Closing (as defined in Section 3) shall occur and the
Effective Date shall be as specified in Section 3 hereof.
1.4 Conversion of Shares. The basis for converting and exchanging the
issued and outstanding shares of CP and Subsidiary upon the consummation of
the Merger will be as follows:
(a) The 515,789 issued and outstanding shares of CP stock shall,
as of the Effective Time by virtue of the Merger and without any action
on the part of the holders thereof, be converted into and exchanged for
750,000 shares of the common stock of L-P so that immediately following
Effective Time the Shareholders shall become holders of L-P common stock
as follows:
Shareholder Number of L-P Shares
Jerry M. Long
and Lois Long 439,121
Bradford H. Crozier 30,189
Peter James Palmer 92,691
Sidney Carrie and
Betty Carrie 63,673
Robert L. Maes and
Carole J. Maes 63,673
Liccardo, Rossi, et al. 37,500
Edward Dougherty 23,153
Total 750,000
(b) Each share of Subsidiary stock issued and outstanding at the
Effective Time shall, as of the Effective Time by virtue of the Merger
and without any action on the part of the holder thereof, be converted
into and exchanged for one share of the stock of CP;
1.5 Issuance of L-P Share Certificates. At the Closing:
(a) Each holder of a certificate or certificates representing
shares of CP stock issued and outstanding at the Effective Time (other
than treasury shares) shall surrender such certificate or certificates
duly endorsed as L-P may require and shall receive in exchange therefore
a certificate or certificates representing the number of shares of L-P
common stock into which the CP stock theretofore represented by the
certificate or certificates so surrendered shall have been converted and
exchanged as provided in Section 1.4 hereof. After the Effective Time,
each outstanding certificate which prior to such time represented shares
of CP stock shall until so surrendered, be deemed for all corporate
purposes other than the payment of dividends or other distributions to
evidence the ownership of shares of L-P common stock into which such
shares of CP stock shall have been converted.
(b) Unless and until an outstanding certificate representing
shares of CP stock shall be so surrendered, no dividend or other
distribution payable to the holders of record of L-P common stock as of
any time subsequent to the Effective Time shall be paid to the holder of
such CP share certificate but upon the surrender of such CP share
certificate there shall be paid to the first record holder of the
certificate or certificates for L-P common stock issued and exchanged
therefore the amount of dividends or other distributions which
theretofore became payable with respect to the number of shares of L-P
common stock represented by the certificate or certificates so issued in
exchange.
2. SEC REGISTRATION AND RELATED MATTERS
2.1 Investment Representations. The Shareholders represent to L-P as
follows:
(a) The shares of L-P common stock to be issued to them pursuant
to this Agreement ("Stock") are being acquired for their own accounts
and for investment only, without a view to the distribution of all or
any part of the Stock, other than in an offering registered under the
Securities Act of 1933, as amended (the "Act"), and the acquisition of
the Stock by the Shareholders and their continued holding thereof as may
be required by law and the terms hereof are consistent with their
respective financial positions.
(b) The Shareholders have had access to complete information
regarding the business and finances of L-P, have met and discussed the
business and finances of L-P with L-P's management employees to the
extent they deem necessary, and have received, read, and understood the
contents of (i) L-P's annual report to stockholder for each of the years
ended December 31, 1991, 1992, and 1993; (ii) its proxy statements for
the 1991, 1992, and 1993 annual meetings of stockholders; (iii) all
reports and documents filed by L-P with the Securities and Exchange
Commission ("SEC") under Section 13 of the Securities Exchange Act of
1934 during the period commencing January 1, 1994, and ending on the
date hereof; and (iv) L-P's description of its capital Stock.
(c) Each Shareholder has and as of the Effective Date will have a
net worth, or a joint net worth with such Shareholder's spouse, in
excess of $1,000,000.
2.2 Limitations on Transfer. The Shareholders shall not, directly or
indirectly, offer or sell, pledge, transfer, or otherwise dispose of all or
any portion of the Stock, or solicit any offer to buy, purchase, or otherwise
acquire or take a pledge of all or any portion of the Stock except in the
manner and to the extent described in (i) a registration statement in effect
under the Act covering the Stock and as to which a prospectus meeting the
requirements of the Act is duly delivered or (ii) the opinion of Liccardo,
Rossi, Sturges & McNeil, or other counsel for the Shareholders acceptable to
L-P, which opinion is in form and substance satisfactory to counsel for L-P,
to the effect such proposed offer, sale, pledge, transfer, or other
disposition of the Stock may be made without such registration and delivery.
The Shareholders acknowledge that (i) they have consulted with counsel
concerning the limited availability of exemptions from registration under the
Act, (ii) they understand that they must bear the economic risk of investment
in the Stock for an indefinite period of time because the Stock has not been
registered under the Act and, therefore, cannot be sold unless it is
subsequently registered under the Act or an exemption from such registration
is available, (iii) they understand that, except as expressly set forth in
this Agreement, L-P is not obligated to register the Stock, and (iv) they
understand that, absent registration, the Stock ordinarily may not be sold
for at least two years after the Effective Date and then only in accordance
with SEC Rule 144.
2.3 Legend on Certificates. Certificates representing the Stock may be
endorsed with a legend, in form and substance specified by counsel for L-P,
to the effect that the Stock has not been registered under the Act and that
no transfer of the Stock may be made unless the Stock is registered under the
Act or an exemption from such registration is available. L-P need not
recognize any person other than the Shareholders as having any interest in or
to the Stock unless the acquisition thereof shall have been made in
compliance with Section 2.2 hereof. L-P may issue appropriate stop transfer
instructions to the transfer agents for the Stock to prevent transfers in
violation of Section 2.2 hereof. At any time while the Stock is registered
under the Act, L-P shall, upon written request, cause the certificates
representing the Stock to be reissued free of such legend and withdraw the
stop transfer instructions. Upon the termination of any such registration, a
Shareholder who owns Stock represented by a certificate without such a
legend, shall, upon written request, promptly return such certificate to L-P
for reissue for a certificate endorsed with such legend and otherwise subject
to the provision of this Section 2.3. Three years after the Effective Date,
L-P's right to request the return of unlegended certificates for previously
registered Stock shall terminate and L-P shall, upon written request of the
Shareholder, cause any certificates bearing a legend to be reissued free of
such legend and withdraw the stop transfer instructions, provided that SEC
Rule 144(k), or a comparable rule, is in effect in substantially its present
form and the Shareholders furnish to L-P evidence satisfactory to L-P and its
counsel that they meet the requirements of such rule.
2.4 Registration Under the Act. Subject to the terms and conditions of
this Section 2, L-P shall, promptly after the Effective Date, use its best
efforts to register the Stock under the Act and to maintain such registration
in effect until the earlier of (i) the sale of all the Stock by the
Shareholders and (ii) the expiration of two years from the Effective Date.
It shall be a condition to L-P's obligation to use its best efforts to
register the Stock and to maintain such registration in effect that the
Shareholders shall cooperate with L-P in connection with effecting and
maintaining such registration.
2.5 Stock to be Sold on New York Stock Exchange; Suspension of Sales.
The Shareholders agree that while a registration statement with respect to
the Stock is in effect:
(a) They will not, without L-P's prior written consent, sell any
Stock except in transactions in the regular way on the New York Stock
Exchange.
(b) They will suspend sales of Stock for such periods as L-P may
request, but not to exceed 45 days, if they are provided with a
certificate signed by L-P's chief executive officer to the effect that
in his good faith judgment the suspension is in the best interests of L-
P and its stockholders generally. The Shareholders shall not be
required to suspend sales of Stock more than twice in any 12-month
period.
2.6 Registration Procedures and Expenses. In connection with the
registration of the Stock pursuant to Section 2.4, L-P shall:
(a) Promptly after the Effective Date prepare and file with the
SEC a registration statement with respect to the Stock and use its best
efforts to cause such registration statement to become effective.
(b) Cooperate with the Shareholders in their review of L-P's
affairs made in connection with such registration.
(c) Prepare and file with the SEC such amendments and supplements
to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement in
effect for two years from the Effective Date.
(d) Furnish to the Shareholders such number of copies of the
prospectus forming a part of such registration statement (including each
preliminary prospectus) and such other documents as the Shareholders may
reasonably request and deliver to the New York Stock Exchange pursuant
to SEC Rule 153 such number of copies of the prospectus as are required
thereby.
(e) Use its best efforts to register, qualify, or obtain an
exemption for the Stock covered by such registration statement under the
securities or blue sky laws of such jurisdictions in which the
Stockholders reside at the date of this Agreement as may be necessary to
permit the sale of the Stock on the New York Stock Exchange during the
period provided in Section 2.6(c) hereof.
(f) Notify the Shareholders, at any time when a prospectus
relating to the Stock is required to be delivered under the Act, of the
happening of any event as a result of which the prospectus forming a
part of the registration statement, as then in effect, includes an
untrue statement of material fact or omits to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing
and prepare and furnish them a reasonable number of copies of any
supplement to or any amendment of such prospectus that may be necessary
so that such prospectus shall not include any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statement therein not misleading in the
light of the circumstances then existing and deliver to the New York
Stock Exchange the appropriate number of copies of any such supplement
or amendment.
2.7 Expenses. All expenses incurred by L-P in complying with
Section 2.6 hereof, including, without limitation, all registration and
filing fees, printing expenses, expenses of complying with state securities
or blue sky laws, fees and disbursements of counsel for L-P, and accountants'
fees and expenses incident to or required by any such registration shall be
borne by L-P. All sales commissions and brokerage fees incurred by the
Shareholders and all fees and disbursements of counsel for the Shareholders
shall be borne by the Shareholders.
2.8 Furnishing Information. The Shareholders shall furnish to L-P in
writing such information regarding the Shareholders as L-P shall reasonably
request from time to time and as shall be required in connection with the
action to be taken by L-P. The Shareholders shall notify L-P, at any time
when a prospectus relating to the Stock is required to be delivered under the
Act, of the happening of any event relating to the Shareholders or the
intended method of distribution of the Stock as a result of which such
prospectus includes an untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing.
2.9 Indemnification. In the event of any registration of Stock under
the Act pursuant to this Section 2:
(a) L-P shall indemnify and hold harmless the Shareholders
against any losses, claims, damages, liabilities, or expenses, joint or
several to which the Shareholders may become subject under the Act or
otherwise, insofar as such losses, claims, damages, liabilities, or
expenses (or actions in respect thereof) arise out of or are based upon
any untrue statement or allegedly untrue statement of any material fact
contained in any registration statement under which the Stock was
registered under the Act, any preliminary prospectus or final prospectus
contained therein, or any amendment or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading; and will reimburse the Shareholders
for any legal or any other expenses reasonably incurred by any of them
in connection with investigating or defending any such loss, claim,
damage, liability, or action; provided, however that L-P will not be
liable in any such case to the extent that any such loss, claim, damage,
liability, or action arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in
reliance upon and in conformity with written information furnished to
L-P by a Shareholder for use in the preparation thereof. L-P agrees to
pay any legal and other expenses for which it is liable under this
Section 2.9(a) within 30 days after L-P's receipt of a bill therefor.
(b) The Shareholders, jointly and severally, shall indemnify and
hold harmless, in the same manner and to the same extent as set forth in
Section 2.9(a), L-P, each director of L-P, each officer of L-P who shall
sign such registration statement, and any person who controls L-P within
the meaning of the Act, with respect to any statement in or omission
from such registration statement, any preliminary prospectus or final
prospectus contained therein, or any amendment or supplement thereto, if
such statement or omission was made in reliance upon information
furnished to L-P by a Shareholder for use in the preparation of such
registration statement, preliminary prospectus, final prospectus, or
amendment or supplement.
(c) Any person obligated under the provisions of this Section 2.9
to indemnify another may participate in the defense of any action
relating thereto with counsel chosen by such person and, with the
consent of such other person to the choice of counsel (which shall not
be unreasonably withheld), may assume and control such defense and any
settlement of such action. Upon the assumption of such defense by an
indemnifying party, the indemnifying party shall not be liable to the
indemnified party for any legal or other expenses subsequently incurred
by the indemnified party in connection with such defense.
2.10 Stock Dividends and Splits. The term "Stock" as used in this
Section 2, includes the Stock issued pursuant to this Agreement and all
securities thereafter issued with respect to such shares as stock dividends,
stock splits, recapitalizations, or otherwise.
2.11 Redemption of Stock by L-P. If, despite its best efforts, L-P is
unable to cause the registration of the Stock to become effective within 120
days following the Effective Date, L-P agrees to repurchase the Stock from
the Shareholders on the following terms and conditions:
(a) L-P's obligation to repurchase the Stock from the Shareholders
shall commence on the 121st day following the Effective Date and shall
expire as of the earlier of the date (i) the registration of the Stock
becomes effective or (ii) the Stock becomes eligible for sale by the
Shareholders under SEC Rule 144(k) (provided that if the Shareholders do
not meet the requirements of such rule, L-P's obligation to repurchase
the Stock shall continue);
(b) A Shareholder may exercise his or her right to cause L-P to
redeem Stock from time to time by delivering to L-P by private overnight
air courier at the address set forth in Section 17 hereof (i) a written
request for redemption specifying the number of whole shares to be
redeemed and (ii) a Stock certificate for at least the number of shares
to be redeemed accompanied by a stock power executed by the Shareholder
as to the number of shares to be redeemed with the Shareholder's
signature guaranteed by a national bank. Each request for redemption
shall be for at least 1,000 shares;
(c) The price per share to be paid by L-P pursuant to this
Section 2.11 shall be the closing price for a share of L-P stock on the
New York Stock Exchange as reported in The Wall Street Journal on the
date L-P receives in proper form a redemption request; provided that in
the event of stock splits or stock dividends applicable to the shares
being redeemed, an appropriate adjustment shall be made in the number of
shares redeemed or the price paid; and
(d) Within ten business days following the date L-P receives a
proper redemption request from a Shareholder, L-P shall deliver to the
Shareholder by overnight air courier a check for the redemption price
and, if applicable, a certificate representing the difference between
the number of shares redeemed and the number of shares represented by
the certificate tendered by the Shareholder. The amount paid to the
Shareholder shall be reduced by any applicable state stock transfer
taxes.
<PAGE>
3. CLOSING
3.1 Closing Date. The Effective Date shall be and the closing of the
transactions provided for herein (the "Closing") shall occur on July 29,
1994. The Closing shall take place at the offices of L-P, 111 S.W. Fifth
Avenue, Suite 4200, Portland, Oregon 97204, or at such other place and time
as the parties shall mutually agree. Prior to the Closing, the parties shall
prepare and execute the filings referred to in Section 1.3(a) and (b) hereof
in forms reasonably satisfactory to L-P, the Shareholders, and CP, and their
respective counsel, and shall make appropriate arrangements for the filing
thereof on the Effective Date.
3.2 Closing Transactions. At the Closing, and at the Effective Time:
(a) L-P Deliveries.
(i) L-P will deliver to the Shareholders certificates
for 750,000 shares of L-P Stock, which shares shall be validly
issued, fully paid, and nonassessable and shall be allocated
among the Shareholders as set forth in Section 1.4 hereof; and
(ii) L-P will deliver to the Shareholders the opinion of
counsel referred to in Section 9.4 hereof.
(b) Shareholder and CP Deliveries.
(i) The Shareholders will respectively assign, transfer,
and deliver to L-P certificates representing the number of
shares of the stock of CP shown in Recital B hereof as being
owned by them free and clear of all liens, pledges, and
encumbrances fully endorsed in blank, or with appropriate
stock transfer powers endorsed in blank, in either case with
signatures guaranteed.
(ii) CP will deliver to L-P the opinion of counsel
referred to in Section 8.4 hereof.
4. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS
Shareholders represent and warrant to L-P as follows, except to the
extent otherwise expressly set forth in the Disclosure Schedule attached
hereto as Schedule 4.
4.1 Corporate.
4.1(a) Organization. CP is a corporation duly organized and
validly existing under the laws of the state of California.
4.1(b) Capitalization. The authorized capital stock of CP
consists of 10,000,000 shares of stock of which 515,789 shares have been
validly issued and are now outstanding, fully paid, and nonassessable.
No shares of CP have been issued in contravention of any person's
preemptive rights to acquire additional shares or in violation of the
Act or of any state securities law. There are no outstanding options to
acquire, rights to purchase, securities convertible into, agreements or
commitments restricting the transfer of or understandings or contracts
relating to the issuance or transfer of the stock of CP except for an
option to purchase 15,000 CP shares held by Edward Dougherty. Each
Shareholder is the lawful owner (beneficially and of record) of the
number of shares of CP stock set opposite the Shareholder's name in
recital B above, has valid and marketable title to such shares free and
clear of any and all claims, liens, or encumbrances and has full legal
right and power and all authorization and approval required by law to
take the actions contemplated by this Agreement. The shares listed in
recital B constitute all the outstanding shares of stock of CP.
4.1(c) Corporate Power. CP has all requisite corporate power and
authority to own, operate and lease its properties, to carry on its
business as and where such is now being conducted, to enter into this
Agreement and the other documents and instruments to be executed and
delivered by CP pursuant hereto and to carry out the transactions
contemplated hereby and thereby.
4.1(d) Qualification. CP is duly licensed or qualified to do
business as a foreign corporation, and is in good standing, in each
jurisdiction wherein the character of the properties owned or leased by
it, or the nature of its business, makes such licensing or qualification
necessary. The states in which CP is licensed or qualified to do
business are listed in Schedule 4.1(d) attached hereto.
4.1(e) No Subsidiaries. CP does not own any interest in any
corporation, partnership or other entity.
4.1(f) Articles of Incorporation; Bylaws. The copies of CP's
articles of incorporation and bylaws which have heretofore been
delivered by CP to L-P are complete and correct as amended to the date
hereof.
4.2 Authority. The execution and delivery of this Agreement and the
other documents and instruments to be executed and delivered by CP pursuant
hereto and the consummation of the transactions contemplated hereby and
thereby have been duly authorized by CP's board of directors and the
Shareholders. No other or further corporate act or proceeding on the part of
CP or the Shareholders is necessary to authorize this Agreement or the other
documents and instruments to be executed and delivered by CP pursuant hereto
or the consummation of the transactions contemplated hereby and thereby.
This Agreement constitutes, and when executed and delivered, the other
documents and instruments to be executed and delivered by CP and the
Shareholders pursuant hereto will constitute, valid binding agreements of CP
and the Shareholders, enforceable in accordance with their respective terms.
4.3 No Violation. To the knowledge of CP and the Shareholders, neither
the execution and delivery of this Agreement or the other documents and
instruments to be executed and delivered by CP pursuant hereto, nor the
consummation by CP of the transactions contemplated hereby and thereby (a)
will violate any statute or law or any rule, regulation, order, writ,
injunction or decree of any court or governmental authority, (b) will require
any authorization, consent, approval, exemption or other action by or notice
to any court, administrative or governmental agency, instrumentality,
commission, authority, board or body or (c) will violate or conflict with, or
constitute a default (or an event which, with notice or lapse of time, or
both, would constitute a default) under, or will result in the termination
of, or accelerate the performance required by, or result in the creation of
any Lien (as defined in Section 4.11.(b)) upon any of the assets of CP under,
any term or provision of the articles of incorporation or bylaws of CP or of
any contract, commitment, understanding, arrangement, agreement or
restriction of any kind or character to which CP is a party or by which CP or
any of its assets or properties may be bound or affected.
4.4 Financial Statements. CP has heretofore delivered to L-P the
following financial statements of CP with related notes (the "Financial
Statements"):
(a) Audited financial statements for the fiscal year ended
September 30, 1993; and
(b) Unaudited financial statements for the eight-month period
ended May 31, 1994.
The Financial Statements are correct and complete and fairly
present the financial condition of CP at the dates indicated and results of
its operations and changes in its financial position for the periods then
ended in accordance with generally accepted accounting principles applied on
a consistent basis.
4.5 Accounts Receivable. All accounts receivable of CP represent arm's
length sales actually made in the ordinary course of business; are
collectible (net of the reserves shown on CP's books) in the ordinary course
of business; are subject to no counterclaim or setoff and are not in dispute.
Schedule 4.5 attached hereto contains a complete and correct aging schedule
of the accounts receivable included in the most recent balance sheet included
in the Financial Statements.
4.6 Inventory. The Inventories of CP consist of a quality and quantity
usable and salable in the ordinary course of business, have a commercial
value at least equal to the value shown on CP's books, and are valued in
accordance with generally accepted accounting principles at the lower of cost
(on a FIFO basis) or market.
4.7 Absence of Certain Changes. Since the date of the most recent
balance sheet included in the Financial Statements, there has not been:
4.7(a) No Adverse Change. Any material adverse change in the
financial condition, assets, liabilities, business, prospects or
operations of CP;
4.7(b) No Damage. Any material loss, damage or destruction,
whether covered by insurance or not, affecting CP's business or
properties;
4.7(c) No Increase in Compensation. Any increase in the
compensation, salaries or wages payable or to become payable to any
employee or agent of CP (including, without limitation, any increase or
change pursuant to any bonus, pension, profit sharing, retirement or
other plan or commitment), or any bonus or other employee benefit
granted, made or accrued;
4.7(d) No Labor Disputes. Any labor dispute or disturbance, other
than routine individual grievances which are not material to the
business, financial condition or results of operations of CP;
4.7(e) No Commitments. Any commitment or transaction by CP
(including, without limitation, any capital expenditure) other than in
the ordinary course of business consistent with past practice;
4.7(f) No Dividends. Any declaration, setting aside, or payment
of any dividend or any other distribution in respect of CP's capital
stock; any redemption, purchase or other acquisition by CP of any
capital stock of CP, or any security relating thereto; or any other
payment to any shareholder of CP as such a shareholder;
4.7(g) No Disposition of Property. Any sale, lease or other
transfer or disposition of any properties or assets of CP, except for
sales of inventory in the ordinary course of business;
4.7(h) No Indebtedness. Any indebtedness for borrowed money
incurred, assumed or guaranteed by CP other than changes in CP's line of
credit in the ordinary course of business;
4.7(i) No Amendment of Contracts. Any entering into, amendment or
termination by CP of any contract, or any waiver of material rights
thereunder, other than in the ordinary course of business;
4.7(j) Loans, Advances, or Credit. Any loan or advance or any
grant of credit by CP;
4.7(k) No Unusual Events. Any other event or condition
specifically related to CP not in the ordinary course of business which
would have a material adverse effect on the assets or the business of CP
taken as a whole.
4.8 Absence of Undisclosed Liabilities. Except as and to the extent
specifically disclosed in the most recent balance sheet included in the
Financial Statements or this Agreement, CP does not have any liabilities
other than commercial liabilities and obligations incurred since the date of
such balance sheet in the ordinary course of business consistent with past
practice none of which has or will have a material adverse effect on the
business, financial condition or results of operations of CP taken as a
whole.
4.9 No Litigation. There is no action, suit, arbitration proceeding,
investigation or inquiry pending or to the knowledge of the Shareholders
threatened against CP, its directors (in such capacity), its business or any
of its assets, nor do the Shareholders know of any such proceeding,
investigation or inquiry threatened against CP. The Disclosure Schedule
identifies all actions, suits, proceedings, investigations and inquiries to
which CP has been a party since January 1, 1988. Neither CP nor its business
or assets is subject to any judgment, order, writ or injunction of any court,
arbitrator or federal, state, foreign, municipal or other governmental
department, commission, board, bureau, agency or instrumentality.
4.10 Compliance With Laws.
4.10(a) Compliance. CP (including each and all of its operations,
practices, properties and assets) is to the knowledge of the
Shareholders in compliance with all applicable federal, state, local and
foreign laws, ordinances, orders, rules and regulations (collectively,
"Laws"), including, without limitation, those applicable to
discrimination in employment, occupational safety and health, trade
practices, environmental protection, competition and pricing, product
warranties, zoning, building and sanitation, employment, retirement and
labor relations, and product advertising except to the extent any
noncompliance would not have a material adverse effect upon the assets
or the business of CP taken as a whole. CP has not received notice of
any violation or alleged violation of, and to the knowledge of
Shareholders is not subject to liability for past or continuing
violation of, any Laws. All reports and returns required to be filed by
CP with any governmental authority have been filed, and to the knowledge
of Shareholders were accurate and complete when filed.
4.10(b) Licenses and Permits. To the knowledge of the
Shareholders, CP has all licenses, permits, approvals, authorizations
and consents of all governmental and regulatory authorities and all
certification organizations required for the conduct of CP's business
(as presently conducted). All such licenses, permits, approvals,
authorizations and consents are described in Schedule 4.10(b), are in
full force and effect. To the knowledge of the Shareholders, CP
(including its operations, properties and assets) is and has been in
compliance with all such permits and licenses, approvals, authorizations
and consents.
4.10(c) Environmental Matters. All CP's products are being and
have been manufactured for CP by third parties under contract and CP has
never engaged in any manufacturing or other activities which would
expose CP to liability under any federal, state, or local laws or
regulations relating to pollution or the protection of the environment.
4.11 Title to and Condition of Properties.
4.11(a) Real Property. CP owns no real property or any rights in
real property, other than the leases described in Section 4.13 hereof.
4.11(b) Personal Property. CP has good and marketable title to
all its assets, free and clear of all mortgages, liens (statutory or
otherwise), security interests, claims, pledges, equities, options,
conditional sales contracts, assessments, levies, easements, covenants,
reservations, restrictions, exceptions, limitations, charges or
encumbrances of any nature whatsoever (collectively, "Liens"). Except
as described in subsection 4.11.(d), all CP's tangible assets are
located at facilities leased by CP as described in Section 4.13(a) and
all tangible assets located at such facilities are owned by CP.
4.11(c) Condition. All CP's tangible assets are, taken as a
whole, in good operating condition and repair.
4.11(d) Molds. CP's products are manufactured for it by third
parties utilizing injection molds fabricated for CP by third parties to
specifications established by CP. Attached as Schedule 4.11(d) is a
list which describes each mold owned by CP specifying
(i) the date the mold was fabricated, the party fabricating
the mold, the extent of use of the mold to a date specified in the
schedule, the expected remaining useful life of the mold, the
mold's location, the party in possession of the mold, and a
description of the agreement under which such party holds the mold;
(ii) complete and correct copies of all agreements and all
amendments thereto pursuant to which third parties are in
possession of molds owned by CP have heretofore been furnished by
CP to L-P.
4.12 Insurance. Set forth in Schedule 4.12 attached hereto, is a
complete and accurate description of all policies of fire, liability, product
liability, workers compensation, health and other forms of insurance
presently in effect with respect to the business and properties of CP, true,
complete, and correct copies of which have heretofore been delivered to L-P.
4.13 Contracts and Commitments.
4.13(a) Leases. Attached hereto as Schedule 4.13(a) is a list of
all real and personal property leases to which CP is a party. Complete
and correct copies of each lease listed on the schedule, and all
amendments thereto, have heretofore been delivered by CP to L-P.
4.13(b) Purchase Commitments. Attached hereto as Schedule 4.13(b)
is a list of all agreements (written or oral) between CP and third
parties for the manufacture of CP's products, for the fabrication of new
injection molds or for the purchase of goods and supplies by CP.
Complete and correct copies of all such written contracts have
heretofore been delivered by CP to L-P.
4.13(c) Sales Commitments. Attached hereto as Schedule 4.13(c) is
a list and description of all agreements (written or oral) between CP
and third parties for the distribution and sale of its products.
Complete and correct copies of all such written contracts have
heretofore been delivered by CP to L-P.
4.13(d) Contracts With Shareholders and Certain Others. CP has no
agreement, understanding, contract or commitment (written or oral) with
any Shareholder or relative of any Shareholder or any officer, employee,
agent, distributor or franchisee of CP, except for a Buy-Sell Agreement
dated October 29, 1993, which Agreement will be deemed void by the
Shareholders and CP upon the consummation of the Merger.
4.13(e) Collective Bargaining Agreements. CP is not a party to
any collective bargaining agreement with any union.
4.13(f) Loan Agreements. CP is not obligated under any loan
agreement, promissory note, letter of credit, or other evidence of
indebtedness as a signatory, guarantor or otherwise.
4.13(g) Guarantees. CP has not guaranteed the payment or
performance of any person, firm or corporation, agreed to indemnify any
person (except as provided herein) or act as a surety, or otherwise
agreed to be contingently or secondarily liable for the obligations of
any person.
4.13(h) Restrictive Agreements. CP is not a party to nor is it
bound by any agreement requiring CP to assign any interest in any trade
secret or proprietary information, or prohibiting or restricting CP from
competing in any business or geographical area or soliciting customers
or otherwise restricting it from carrying on its business anywhere in
the world.
4.13(i) Other Material Contracts. CP has no lease, license,
contract or commitment of any nature involving consideration or other
expenditure in excess of $20,000, or involving performance over a period
of more than 90 days, or which is otherwise individually material to the
operations of CP, except as described in Schedule 4.13(i) attached
hereto or in any other schedule hereto.
4.13(j) No Default. CP is not in default under any lease,
agreement, contract or commitment, nor has any event or omission
occurred which through the passage of time or the giving of notice, or
both, would constitute a default thereunder or cause the acceleration of
any of CP's obligations or result in the creation of any Lien on any of
the assets owned, used or occupied by CP. To the knowledge of the
Shareholders, no third party is in default under any lease, agreement,
contract or commitment to which CP is a party, nor has any event or
omission occurred which, through the passage of time or the giving of
notice, or both, would constitute a default thereunder or give rise to
an automatic termination, or the right of discretionary termination
thereof.
4.14 Employee Benefit Plans. Schedule 4.14 attached hereto, describes
all pension, profit sharing, retirement, bonus, executive or deferred
compensation, hospitalization and other similar fringe or employee benefit
plans, programs and arrangements, and any employment or consulting contracts,
"golden parachutes," severance agreements or plans, vacation and sick leave
plans including, without limitation, all "employee benefit plans" (as defined
in Section 3(3) of the Employee Retirement Income Security Act of 1974, as
amended ("ERISA")), all employee manuals, and all written or binding oral
statements of policies, practices or understandings relating to employment,
which are provided to, for the benefit of, or relate to, any persons employed
by CP. The items described in the foregoing sentence are hereinafter
sometimes referred to collectively as "Employee Plans/Agreements." True and
correct copies of all written Employee Plans/Agreements, including all
amendments thereto, have heretofore been provided to L-P. CP is in
compliance with and has made all payments due under all Employee
Plans/Agreements and with respect thereto CP is in compliance with all
applicable federal and state laws and regulations.
4.15 Employment Compensation. Schedule 4.15 attached hereto contains a
true and correct list of all employees to whom CP is paying compensation; and
in the case of salaried employees such list identifies the current annual
rate of compensation for each employee and in the case of hourly or
commission employees identifies certain reasonable ranges of rates and the
number of employees falling within each such range.
4.16 Patents, Trademarks, etc.. Schedule 4.16 attached hereto lists
all United States and foreign trademarks, service marks, trade names, brand
names, copyrights, including registrations and application, patent and patent
applications, and employee covenants and agreements respecting intellectual
property ("Trade Rights") in which CP now has any interest, specifying
whether such Trade Rights are owned, controlled, used or held (under license
or otherwise) by CP, and also indicating which of such Trade Rights are
registered. All Trade Rights shown as registered in Schedule 4.16 have been
properly registered, all pending registrations and applications have been
properly made and filed and all annuity, maintenance, renewal and other fees
relating to registrations or applications are current. In order to conduct
the business of CP, as such is currently being conducted, CP does not require
any Trade Rights that it does not already have. CP is not infringing and has
not infringed on any Trade Rights of another in the operation of the business
of CP, nor to the knowledge of Shareholders is any other person infringing on
the Trade Rights of CP. Except as listed on Schedule 4.16, CP has not
granted any license or made any assignment of any Trade Right and no other
person has any right to use any Trade Right owned or held by CP. CP does not
pay any royalties or other consideration for the right to use any Trade
Rights of others. Except as set forth on Schedule 4.16, to the knowledge of
Shareholders, there are no inquiries, investigations or claims or litigation
challenging or threatening to challenge CP's right, title and interest with
respect to its continued use and right to preclude others from using any
Trade Rights of CP. To the knowledge of Shareholders, all Trade Rights of CP
are valid, enforceable and in good standing, and there are no equitable
defenses to enforcement based on any act or omission of CP.
<PAGE>
4.17 Customers and Suppliers.
4.17(a) Customers. Schedule 4.17(a) attached hereto, contains a
list of the customers, including distributors, of CP for 1993 and the
first six months of 1994, and the dollar volume of business done with
each listed party during such periods. Shareholders have no knowledge
or information of any facts indicating, nor any other reason to believe,
that any of the customers listed on Schedule 4.17(a) will not continue
to be customers of the business of CP after the Closing at substantially
the same level of purchases as heretofore.
4.17(b) Suppliers. Schedule 4.17(b) attached hereto, contains a
list of the suppliers to CP for 1993 and the first six months of 1994.
Shareholders have no knowledge or information of any facts indicating,
nor any other reason to believe, that any of the suppliers listed on
Schedule 4.17(b) will not continue to be suppliers to CP after the
Closing and will not continue to supply substantially the same quantity
and quality of goods at competitive prices.
4.18 Product Warranty and Product Liability. Schedule 4.18 attached
hereto, contains a true, correct and complete copy of CP's standard warranty
or warranties for sales of its products.
4.19 Tax Matters. CP has properly completed and filed in correct form
all federal, state, and other tax returns (including informational returns)
of every nature required to be filed by it and has paid all taxes (whether or
not requiring the filing of returns) including all deficiencies, assessments,
additions to tax, penalties and interest of which notice has been received to
the extent such amounts have become due. All tax liabilities have been fully
and properly reflected in the Financial Statements. The income tax returns
of CP have not been examined by the Internal Revenue Service. There are no
outstanding agreements or waivers extending the statutory period of
limitation for any federal or state tax return of CP for any period. CP has
made all required deductions and payments and has properly prepared and
delivered all required documents in connection with the withholding of taxes
from the wages and other compensation of its employees. CP has filed and
paid all sales/use tax returns for all states in which it has responsibility
to do so.
4.20 Key Employees; Bank; Etc. Attached hereto as Schedule 4.20 is a
list showing:
(a) The names of all CP's officers and directors;
(b) The name of each bank at which CP has (i) an account and
the numbers of all accounts, (ii) a line of credit, or (iii) a safe
deposit box and the name of each person authorized to draw thereon
or have access thereto; and
(c) The name of each person holding a power of attorney from
CP and a summary of the terms thereof.
4.21 Records. The books of account of CP fairly reflect the items of
income and expense and the assets, liabilities, and accruals of its business
and operations. The minute books and stock transfer records of CP contain
records which are complete and accurate in all material respects of all
minutes, consents of shareholders and directors, all corporate actions, and
all stock transfers of CP.
4.22 Adverse Conditions. There are no conditions known to any
Shareholder with respect to the markets, products, facilities, or personnel
of CP which might materially adversely affect its business or prospects other
than such conditions as may affect the industry in which CP participates as a
whole and other than the possibility that some employees may leave their
employment.
4.23 Disclosure. To the knowledge of the Shareholders, no
representation or warranty by the Shareholders in this Agreement, nor any
statement, certificate, schedule or exhibit hereto furnished or to be
furnished by or on behalf of the Shareholders or CP pursuant to this
Agreement, nor any document or certificate delivered to L-P pursuant to this
Agreement or in connection with transactions contemplated hereby, contains or
shall contain any untrue statement of material fact or omits or shall omit a
material fact necessary to make the statements contained therein not
misleading.
5. REPRESENTATIONS AND WARRANTIES OF L-P
L-P represents and warrants to the Shareholders as follows:
5.1 Corporate.
5.1(a) Organization. L-P is a corporation duly organized and
validly existing under the laws of the state of Delaware.
5.1(b) Corporate Power. L-P has all requisite corporate
power and authority to own, operate and lease its properties, to
carry on its business as and where such is now being conducted, to
enter into this Agreement and the other documents and instruments
to be executed and delivered by L-P pursuant hereto and to carry
out the transactions contemplated hereby and thereby.
5.1(c) Qualification. L-P is duly licensed or qualified to do
business as a foreign corporation, and is in good standing, in each
jurisdiction wherein the character of the properties owned or leased by
it, or the nature of its business, makes such licensing or qualification
necessary.
5.2 Authority. The execution and delivery of this Agreement and the
other documents and instruments to be executed and delivered by L-P pursuant
hereto and the consummation of the transactions contemplated hereby and
thereby have been duly authorized by the board of directors of L-P. This
Agreement constitutes, and when executed and delivered, the other documents
and instruments to be executed and delivered by L-P pursuant hereto will
constitute, valid and binding agreements of L-P, enforceable in accordance
with their respective terms.
5.3 No Violation. To the knowledge of L-P, its officers and directors,
neither the execution and delivery of this Agreement or the other documents
and instruments to be executed and delivered by L-P pursuant hereto, nor the
consummation by L-P of the transactions contemplated hereby and thereby (a)
will violate any statute or law or any rule, regulation, order, writ,
injunction or decree of any court or governmental authority, (b) will require
any authorization, consent, approval, exemption or other action by or notice
to any court, administrative or governmental agency, instrumentality,
commission, authority, board or body (except as provided in Section 6.3
hereof), or (c) will violate or conflict with, or constitute a default (or an
event which, with notice or lapse of time, or both, would constitute a
default) under, or will result in the termination of, or accelerate the
performance required by, or result in the creation of any material Lien upon
any of the assets of L-P under, any term or provision of the Articles of
Incorporation or By-laws of L-P or of any material contract, commitment,
understanding, arrangement, agreement or restriction of any kind or character
to which L-P is a party or by which L-P or any of its assets or properties
may be bound or affected.
5.4 Disclosure. To L-P's knowledge, no representation or warranty by
L-P in this Agreement nor any statement, certificate, schedule or exhibit
hereto furnished or to be furnished by or on behalf of L-P pursuant to this
Agreement, nor any document or certificate delivered to L-P pursuant to this
Agreement or in connection with transactions contemplated hereby, contains or
shall contain any untrue statement of material fact or omits or shall omit a
material fact necessary to make the statements contained therein not
misleading.
6. OTHER MATTERS
6.1 Noncompetition; Confidentiality. Subject to the Closing, and as an
inducement to L-P to execute this Agreement and complete the transactions
contemplated hereby, and in order to preserve the goodwill associated with
the business of CP being acquired pursuant to this Agreement, the
Shareholders (except for Bradford H. Crozier who is expressly exempt from the
restrictions of this Section 6.1) hereby covenant and agree as follows:
6.1(a) Covenant Not to Compete. For a period of five (5) years
from the Closing Date (or with respect to any Shareholder who remains
employed by CP following the Closing, the longer of five (5) years from
the Closing or 36 months after such Shareholder's employment with CP
terminates for any reason), no Shareholder will directly or indirectly
engage in any Competitive Activities (as hereinafter defined). The term
"Competitive Activities" as used herein shall mean:
(i) directly or indirectly engaging in, continuing in or
carrying on (other than as an employee of CP) the business of
designing, and/or selling products of the type now designed
and sold by CP and, in the case of any Shareholder who remains
employed by CP following the Closing, any product being
designed and sold by CP at the time such Shareholder's
employment with CP terminates, or any business substantially
similar thereto, including owning or controlling any financial
interest in any corporation, partnership, firm or other form
of business organization which competes with CP or is engaged
in or carries on any aspect of such business or any business
substantially similar thereto;
(ii) consulting with, advising or assisting in any way
with respect to the business of designing, manufacturing
and/or selling injection molded plastic products or any
business substantially similar thereto, whether or not for
consideration, any corporation, partnership, firm or other
business organization which is now, becomes or is actively
planning to become a competitor of CP, including, but not
limited to, advertising or otherwise endorsing the products of
any such competitor; soliciting customers or otherwise serving
as an intermediary for any such competitor; loaning money or
rendering any other form of financial assistance to or
engaging in any form of business transaction on other than an
arm's length basis with any such competitor; or
(iii) offering employment to an employee of CP, without
the prior written consent of L-P;
provided that this covenant shall not preclude the ownership by any
Shareholder of securities of corporations which are listed on a
national securities exchange or traded in the national
over-the-counter market in an amount which shall not exceed 3% of
the outstanding shares of any such corporation.
The parties agree that the geographic scope of this covenant not to
compete shall extend to the entire United States and any other country
where CP has sold more than an aggregate of $100,000 of its products
during the 12-month period ended June 30, 1994 (or with respect to any
Shareholder who remains employed by CP following Closing, the 12 full-
month period ending just prior to the date such Shareholder's employment
with CP terminates). In the event a court of competent jurisdiction
determines that the provisions of this covenant not to compete are
excessively broad as to duration, geographical scope or activity, it is
expressly agreed that this covenant not to compete shall be construed so
that the remaining provisions shall not be affected, but shall remain in
full force and effect, and any such overbroad provisions shall be
deemed, without further action on the part of any person, to be
modified, amended and/or limited, but only to the extent necessary to
render the same valid and enforceable in such jurisdiction.
6.1(b) Covenant of Confidentiality. No Shareholder shall at any
time subsequent to the Closing, except as explicitly requested by L-P,
(i) use for any purpose, (ii) disclose to any person, or (iii) keep or
make copies of documents, tapes, discs or programs containing, any
confidential information concerning CP. For purposes hereof,
"confidential information" shall mean and include, without limitation,
all Trade Rights in which CP has an interest, all customer lists and
customer information, and all other information concerning CP's
processes, apparatus, equipment, packaging, products, marketing and
distribution methods not previously disclosed to the public directly by
CP or otherwise in the public domain.
6.1(c) Equitable Relief for Violations. The Shareholders agree
that the provisions and restrictions contained in this Section 6.1 are
necessary to protect the legitimate continuing interests of L-P in
acquiring CP and that any violation or breach of these provisions will
result in irreparable injury to L-P for which a remedy at law would be
inadequate and that, in addition to any relief at law which may be
available to L-P for such violation or breach and regardless of any
other provision contained in this Agreement, L-P shall be entitled to
injunctive and other equitable relief as a court may grant after
considering the intent of this Section 6.1.
6.2 General Releases. At the Closing, each Shareholder shall deliver a
general release to L-P, in form and substance reasonably satisfactory to L-P
and its counsel, releasing CP from all liabilities arising prior to the
Closing, except (i) as may be described in such release or (ii) in the case
of Shareholders who are employees of the CP, compensation for current
periods.
6.3 Enforcement of Undertakings of L-P. L-P agrees that the commitment
of L-P to use its best efforts to promptly register and keep registered the
L-P stock issued to Shareholders and the other commitments of L-P contained
in Sections 2.1 through 2.11 inclusive, the Representations and Warranties of
L-P contained in Sections 5.1 through 5.4 inclusive, and the obligations of
L-P in Sections 9.1 through 9.5 inclusive, are all critical inducements to
the Shareholders to enter into this Agreement and to diligently carry out the
future operations of CP so as to maximize CP performance and consequently
L-P's return on its investment in CP. Therefore, any violation or breach of
these provisions will result in irreparable injury to Shareholders and CP for
which a remedy at law would be inadequate and that, in addition to any relief
at law which may be available to Shareholders and CP for such violation or
breach and regardless of any other provision contained in this Agreement,
Shareholders and CP shall be entitled to injunctive and other equitable
relief as a court may grant after considering the intent of this Agreement.
7. FURTHER COVENANTS OF SHAREHOLDERS AND CP
CP and the Shareholders covenant and agree as follows:
7.1 Access to Information and Records. During the period prior to the
Closing, CP shall give L-P, its counsel, accountants and other
representatives (i) reasonable access during normal business hours to all of
the properties, books, records, contracts and documents of CP for the purpose
of such inspection, investigation and testing as L-P deems appropriate (and
CP shall furnish or cause to be furnished to L-P and its representatives all
information with respect to the business and affairs of CP as L-P may
reasonably request); (ii) reasonable access to employees, agents and
representatives for the purposes of such meetings and communications as L-P
reasonably desires; and (iii) with the prior consent of CP in each instance
(which consent shall not be unreasonably withheld), access to vendors,
customers, manufacturers of its machinery and equipment, and others having
business dealings with CP.
7.2 Conduct of Business Pending the Closing. From the date hereof
until the Closing, except as otherwise approved in writing by L-P:
7.2(a) No Changes. CP will use its best efforts to carry on its
business diligently and in the same manner as heretofore and will not
make or institute any changes in its methods of purchase, sale,
management, accounting or operation.
7.2(b) Maintain Organization. CP will use its best efforts to
maintain, preserve, renew and keep in force and effect the existence,
rights and franchises of CP and to preserve the business organization of
CP intact, to keep available to L-P the present officers and employees
of CP, and to preserve for L-P its present relationships with suppliers
and customers and others having business relationships with CP.
7.2(c) No Breach. CP will use its reasonable best efforts to
avoid any act, or any omission to act, which may cause a breach of any
material contract, commitment or obligation, or any breach of any
representation, warranty, covenant or agreement made by the
Shareholders.
7.2(d) No Material Contracts. No contract or commitment will be
entered into, and no purchase of assets (tangible or intangible) will be
made, by or on behalf of CP, except contracts, commitments, purchases or
sales which are in the ordinary course of business and consistent with
past practice.
7.2(e) No Corporate Changes. Except as disclosed herein, CP shall
not amend its Articles of Incorporation or Bylaws or make any changes in
authorized or issued capital stock.
7.2(f) Maintenance of Insurance. CP shall maintain all of the
insurance in effect as of the date hereof or replace such insurance with
comparable coverage and shall procure such additional insurance as shall
be reasonably requested by L-P at L-P's expense.
7.2(g) Maintenance of Property. CP shall use, operate, maintain
and repair all property of CP in a normal business manner consistent
with CP's past practices.
7.2(h) Interim Financials. CP will provide L-P with interim
monthly financial statements and other management reports as and when
they are available.
7.2(i) No Dividends. CP shall not declare or pay any dividend
(whether in cash, stock or property) or make any other distribution to
the Shareholders.
8. CONDITIONS PRECEDENT TO L-P'S OBLIGATIONS
Each and every obligation of L-P to be performed at Closing shall be
subject to the satisfaction prior to or at the Closing (or the waiver by L-P)
of each of the following conditions:
8.1 Representations and Warranties True Closing. Each of the
representations and warranties made by the Shareholders in this Agreement, or
in any instrument, schedule, list, certificate or writing delivered by
Shareholders pursuant to this Agreement, shall be true and correct when made
and shall be true and correct at and as of the Closing as though such
representations and warranties were made as of the Closing, except for any
changes consented to in writing by L-P.
8.2 Compliance With Agreement. The Shareholders and CP shall have in
all material respects performed and complied with all of their agreements and
obligations under this Agreement which are to be performed or complied with
by it prior to or on the Closing, including the delivery of the closing
documents specified in Section 3 hereof.
8.3 Absence of Suit. No action, suit or proceeding before any court or
any governmental authority shall have been commenced or threatened, and no
investigation by any governmental or regulating authority shall have been
commenced, against L-P, CP or any of the affiliates, officers or directors of
any of them, seeking to restrain, prevent or change the transactions
contemplated hereby, or questioning the validity or legality of any such
transactions, or seeking damages in connection with, or imposing any
condition on, any such transactions; provided that the obligations of L-P
shall not be affected unless there is a reasonable likelihood that as a
result of such action, suit, proceeding, or investigation L-P will be unable
to retain substantially all the practical benefits of the transaction to
which it is entitled under this Agreement.
8.4 Opinion of Counsel. L-P shall have received an opinion of CP's
counsel, Liccardo, Rossi, Sturges & McNeil, substantially in the form of
Schedule 8.4 attached hereto.
8.5 Agreement and Release. CP and the Shareholders shall have executed
and delivered (i) an Agreement of Allocation and Mutual General Release of
All Claims in the form attached hereto as Schedule 8.5 and (ii) the General
Release provided for in Section 6.2 hereof, and shall have delivered copies
thereof to L-P.
8.6 Termination of Option. The option to purchase CP shares referred
to in Section 4.1(b) hereof shall have been terminated.
9. CONDITIONS PRECEDENT TO CP'S AND SHAREHOLDERS' OBLIGATIONS
Each and every obligation of the Shareholders and CP to be performed at
Closing shall be subject to the satisfaction prior to or at the Closing (or
the waiver by the Shareholders and CP) of the following conditions:
9.1 Representations and Warranties True at Closing. Each of the
representations and warranties made by L-P in this Agreement, or in any
instrument, list, certificate or writing delivered by L-P pursuant to this
Agreement, shall be true and correct when made and shall be true and correct
at and as of the Closing Date as though such representations and warranties
were made as of the Closing except for any changes consented to in writing by
CP.
9.2 Compliance With Agreement. L-P shall have in all material respects
performed and complied with all of L-P's agreements and obligations under
this Agreement which are to be performed or complied with by L-P prior to or
on the Closing, including the delivery of the closing documents specified in
Section 3 hereof.
9.3 Absence of Suit. No action, suit or proceeding before any court or
any governmental authority shall have been commenced or threatened, and no
investigation by any governmental or regulating authority shall have been
commenced, against L-P, CP or any of the affiliates, officers or directors of
any of them, seeking to restrain, prevent or change the transactions
contemplated hereby, or questioning the validity or legality of any such
transactions, or seeking damages in connection with, or imposing any
condition on, any such transactions; provided that the obligations of CP
shall not be affected unless there is a reasonable likelihood that as a
result of such action, suit, proceeding or investigation, the Shareholders
will be unable to retain substantially all the consideration to which they
are entitled under this Agreement.
9.4 Opinion of Counsel. CP shall have received an opinion of L-P's
counsel, Miller, Nash, Wiener, Hager & Carlsen, substantially in the form of
Schedule 9.4 attached hereto.
10. SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All representations and warranties made by the parties in this Agreement
are made only as of the date of this Agreement but will survive the
consummation of the transactions contemplated by this Agreement for a period
ending on December 31, 1995, after which all such representations and
warranties shall expire except with respect to claims asserted in writing
prior to such date.
11. TERMINATION
11.1 Right of Termination Without Breach. This Agreement may be
terminated without further liability of any party at any time prior to the
Closing:
11.1(a) By mutual written agreement of the parties, or
11.1(b) By either L-P or CP if the Closing shall not have occurred
on or before September 1, 1994, provided the terminating party has not,
through breach of a representation, warranty or covenant, prevented the
Closing from occurring on or before such date.
11.2 Termination for Breach.
11.2(a) Termination by L-P. If (i) there has been a material
breach by the Shareholders or CP of any of their agreements,
representations or warranties contained in this Agreement which has not
been waived in writing by L-P, or (ii) CP shall have attempted to
terminate this Agreement under this Section 11 or otherwise without
grounds to do so, then L-P may, by written notice to CP at any time
prior to the Closing that such breach or wrongful termination attempt is
continuing, terminate this Agreement with the effect set forth in
Section 11.2(c) hereof.
11.2(b) Termination by CP. If (i) there has been a material
breach by L-P of any of its agreements, representations or warranties
contained in this Agreement which has not been waived in writing by CP,
or (ii) L-P shall have attempted to terminate this Agreement under this
Section 11 or otherwise without grounds to do so, then CP may, by
written notice to L-P at any time prior to the Closing that such breach
or wrongful termination attempt is continuing, terminate this Agreement
with the effect set forth in Section 11.2(c).
11.2(c) Effect of Termination. Termination of this Agreement
pursuant to this Section 11.2 shall not in any way terminate, limit or
restrict the rights and remedies of any party hereto against any other
party which has breached or failed to perform any of the
representations, warranties, covenants, or agreements of this Agreement
prior to termination hereof.
12. DISCLOSURES AND ANNOUNCEMENTS
Both the timing and the content of all disclosures to third parties and
public announcements concerning the transactions provided for in this
Agreement by either CP or L-P shall be subject to the approval of the other
in all essential respects, except that CP's approval shall not be required as
to any announcements or filings L-P may be required to make under applicable
laws or regulations.
13. ASSIGNMENT; PARTIES IN INTEREST
13.1 Assignment. Except as expressly provided herein, the rights and
obligations of a party hereunder may not be assigned, transferred or
encumbered without the prior written consent of the other parties.
13.2 Parties in Interest. This Agreement shall be binding upon, inure
to the benefit of, and be enforceable by the respective heirs, successors and
permitted assigns of the parties hereto. Nothing contained herein shall be
deemed to confer upon any other person any right or remedy under or by reason
of this Agreement.
14. RESOLUTION OF DISPUTES
14.1 Arbitration. Any dispute, controversy or claim arising out of or
relating to this Agreement or the performance by the parties of its terms
shall be settled by binding arbitration held in Portland, Oregon, in
accordance with the Commercial Arbitration Rules of the American Arbitration
Association then in effect, except as specifically otherwise provided in this
Section 14. Notwithstanding the foregoing, L-P or CP may, in its discretion,
apply to a court of competent jurisdiction for equitable relief from any
violation or threatened violation of the covenants of the Shareholders under
Section 6.1 of this Agreement or the commitments, representations, warranties
or other undertakings of L-P pursuant to Sections 2.1 through 2.11 inclusive,
and 5.1 through 5.4 inclusive.
14.2 Arbitrators. If the matter in controversy (exclusive of attorney
fees and expenses) shall appear, as at the time of the demand for
arbitration, to exceed $50,000, then the panel to be appointed shall consist
of three neutral arbitrators; otherwise, one neutral arbitrator.
14.3 Procedures; No Appeal. The arbitrator(s) shall allow such
discovery as the arbitrator(s) determine appropriate under the circumstances
and shall resolve the dispute as expeditiously as practicable, and if
reasonably practicable, within 120 days after the selection of the
arbitrator(s). The arbitrator(s) shall give the parties written notice of the
decision, with the reasons therefor set out, and shall have thirty (30) days
thereafter to reconsider and modify such decision if any party so requests
within ten (10) days after the decision. Thereafter, the decision of the
arbitrator(s) shall be final, binding, and nonappealable with respect to all
persons, including (without limitation) persons who have failed or refused to
participate in the arbitration process.
14.4 Authority. The arbitrator(s) shall have authority to award relief
under legal or equitable principles, including interim or preliminary relief,
and to allocate responsibility for the costs of the arbitration and to award
recovery of attorney fees and expenses in such manner as is determined to be
appropriate by the arbitrator(s).
14.5 Entry of Judgment. Judgment upon the award rendered by the
arbitrator(s) may be entered in any court having in personam and subject
matter jurisdiction. The Shareholders, CP, and L-P hereby submit to the in
personam jurisdiction of the federal and state courts in Oregon for the
purpose of confirming any such award and entering judgment thereon.
14.6 Confidentiality. All proceedings under this Section 14, and all
evidence given or discovered pursuant hereto, shall be maintained in
confidence by all parties.
14.7 Continued Performance. The fact that the dispute resolution
procedures specified in this Section 14 shall have been or may be invoked
shall not excuse any party from performing its obligations under this
Agreement, and during the pendency of any such procedure all parties shall
continue to perform their respective obligations in good faith, subject to
any rights to terminate this Agreement that may be available to any party.
15. LAW GOVERNING AGREEMENT
This Agreement may not be modified or terminated orally, and shall be
construed and interpreted according to the internal law of the state of
Oregon, excluding any choice of law rules that may direct the application of
the laws of another jurisdiction.
16. AMENDMENT AND MODIFICATION
L-P, the Shareholders, and CP may amend, modify and supplement this
Agreement in such manner as may be agreed upon by them in writing.
<PAGE>
17. NOTICE
All notices, requests, demands and other communications hereunder shall
be given in writing and shall be: (a) personally delivered; (b) sent by
telecopier, facsimile transmission or other electronic means of transmitting
written documents; or (c) sent to the parties at their respective addresses
indicated herein by private overnight courier service. The respective
addresses and telephone numbers to be used for all such notices, demands or
requests are as follows:
If to L-P: Louisiana-Pacific Corporation
111 S.W. Fifth Avenue, Suite 4200
Portland, Oregon 97204
Attention: Anton C. Kirchhof
General Counsel
PERSONAL & CONFIDENTIAL
Facsimile: (503) 796-0105
with a copy to: G. Todd Norvell
Miller, Nash, Wiener, Hager & Carlsen
111 S.W. Fifth Avenue, Suite 3500
Portland, Oregon 97204
Facsimile: (503) 224-0155
If to CP: Creative Point, Inc.
4045 Clipper Court
Bayside Business Park
Fremont, California 94538
Attention: Jerry Long, President
PERSONAL & CONFIDENTIAL
Facsimile: (510) 659-8260
with a copy to: William J. Purdy, III
Liccardo, Rossi, Sturges & McNeil
1960 The Alameda, Suite 200
San Jose, California 95126-1493
Facsimile: (408) 244-3294
If to Jerry M. Long: 4121 Clipper Court
Fremont, California 94538
If to Bradford H. 6540 Caldor Road
Crozier: Somerset, California 95684
If to Peter James 426-7 Galleria Drive
Palmer: San Jose, California 95134
If to Sidney Carrie 9000 U. S. Highway 192, Lot #753
and Betty Carrie: Clearmont, Florida 34711
If to Robert L. Maes 430 River Bluff Circle
and Carole J. Maes: Naperville, Illinois 60540
If to Edward 4022 Spring Meadow Drive
Dougherty: Ellicott City, Maryland 21042
If to Liccardo, Rossi,
Sturges & McNeil, 1960 The Alameda, Suite 200
APLC: San Jose, California 95126-1493
Facsimile: (408) 244-3294
If personally delivered, such communication shall be deemed delivered
upon actual receipt; if electronically transmitted, such communication shall
be deemed delivered the next business day after transmission (and the sender
shall bear the burden of proof of delivery); if sent by overnight courier
pursuant to this paragraph, such communication shall be deemed delivered upon
receipt. Any party to this Agreement may change its address for the purposes
of this Agreement by giving notice thereof in accordance with this section.
18. EXPENSES
Regardless of whether or not the transactions contemplated hereby are
consummated:
18.1 Brokerage. CP and L-P each represent and warrant to each other
that there is no broker involved or in any way connected with the transaction
provided for herein. L-P agrees to hold CP harmless from and against all
claims for brokerage commissions or finder's fees incurred through any act of
L-P in connection with the execution of this Agreement or the transactions
provided for herein. The Shareholders agree to hold L-P harmless from and
against all claims for brokerage commissions or finder's fees incurred
through any act of CP or the Shareholders in connection with the execution of
this Agreement or the transactions provided for herein.
18.2 Expenses to be Paid by the Shareholders. The Shareholders shall
pay all fees and expenses of CP's legal, accounting, and other professional
counsel in connection with the transactions contemplated hereby provided that
this covenant shall not apply to the shares of CP stock issued to Liccardo,
Rossi, Sturges & McNeil, APLC for such firm's services in connection with the
transaction provided for herein.
19. ENTIRE AGREEMENT
This instrument embodies the entire agreement between the parties hereto
with respect to the transactions contemplated herein, and there have been and
are no agreements, representations or warranties between the parties other
than those set forth or provided for herein.
20. COUNTERPARTS
This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
21. HEADINGS
The headings in this Agreement are inserted for convenience only and
shall not constitute a part hereof.
IN WITNESS WHEREOF, the parties have executed this Agreement as of
the date and year first above written.
CREATIVE POINT, INC. LOUISIANA-PACIFIC CORPORATION
("CP") ("L-P")
By: JERRY M. LONG By: HARRY A. MERLO
President (Title)
SHAREHOLDERS:
JERRY M. LONG ROBERT L. MAES
LOIS LONG CAROLE J. MAES
BRADFORD H. CROZIER PETER JAMES PALMER
Liccardo, Rossi, Sturges &
SIDNEY CARRIE McNeil, APLC
By: CRAIG NEEDHAM
BETTY CARRIE
EDWARD DOUGHERTY
<PAGE>
SCHEDULES
Schedule 1.1 Agreement and Plan of Merger
Schedule 4 Disclosure Schedule
Schedule 4.1(d) Qualification
Schedule 4.5 Aging Schedule of Accounts Receivable
Schedule 4.10(b) Licenses and Permits
Schedule 4.11(d) Molds
Schedule 4.12 Insurance
Schedule 4.13(a) Real and Personal Property Leases
Schedule 4.13(b) Purchase Commitments
Schedule 4.13(c) Sales Commitments
Schedule 4.13(i) Other Material Contracts
Schedule 4.14 Employee Benefit Plans
Schedule 4.15 Employment Compensation
Schedule 4.16 Patents, Trademarks, etc.
Schedule 4.17(a) Customers
Schedule 4.17(b) Suppliers
Schedule 4.18 Product Warranty and Product Liability
Schedule 4.20 Key Employees; Bank; Etc.
Schedule 8.4 Opinion of CP's Counsel
Schedule 8.5 Agreement and Release
Schedule 9.4 Opinion of L-P's Counsel
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