<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) September 25, 1995
FIBREBOARD CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 0-016951 94-0751580
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(State or other jurisdic- (Commission (IRS Employer Iden-
tion of incorporation) file number) tification No.)
2121 North California Blvd., #560, Walnut Creek, CA 94596
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(Address of principal executive offices)
(510) 274-0700
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(Registrant's telephone number, including area code)
None
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(Former name or former address, if changed since last report)
<PAGE>
ITEM 2. ACQUISITION OR DISPOSITION OF ASSETS.
On September 25, 1995, Fibreboard Corporation ("Fibreboard") sold
substantially all of the assets of its Wood Products Group to Sierra Pacific
Industries for a sale price of approximately $245 million, subject to certain
post-closing adjustments. The transaction included approximately 76,000 acres
of timberland and all of the Company's operating facilities located at Standard,
Chinese Camp, Red Bluff and Keystone, California.
Further information concerning the sale is set forth in Fibreboard's press
release dated September 26, 1995, which is attached hereto as an exhibit and
incorporated herein by reference.
ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS.
(b) PRO FORMA FINANCIAL INFORMATION.
(i) Pro forma consolidated balance sheet as of June 30, 1995;
(ii) Pro forma consolidated statements of income for the six-month
period ended June 30, 1995; and
(iii) Pro forma consolidated statement of income for the twelve
months ended December 31, 1994.
(iv) Notes to pro forma consolidated financial statements
See attached pro forma financial information on pages 3-7.
(c) EXHIBITS.
10.1 Asset Purchase and Sale Agreement among Sierra Pacific Industries,
Fibreboard Corporation and Fibreboard Box & Millwork Corporation dated as
of September 6, 1995.
10.2 Amendment No. 1 to the Asset Purchase and Sale Agreement among Sierra
Pacific Industries, Fibreboard Corporation and Fibreboard Box & Millwork
Corporation dated as of September 6, 1995.
99.1 Press Release dated September 26, 1995 issued by Fibreboard Corporation.
2
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FIBREBOARD CORPORATION AND SUBSIDIARIES
PRO FORMA CONSOLIDATED BALANCE SHEET AS OF JUNE 30, 1995
(DOLLAR AMOUNTS IN THOUSANDS)
(UNAUDITED)
<TABLE>
<CAPTION>
ASSETS AS REPORTED PRO FORMA ADJUSTMENT PRO FORMA
JUNE 30, 1995 ADJUSTMENTS KEY JUNE 30, 1995
------------- ----------- ---------- -------------
<S> <C> <C> <C> <C>
CURRENT ASSETS
CASH AND CASH EQUIVALENTS ($1,515) $66,566 (A) $65,051
RECEIVABLES 51,237 (8,210) (B) 43,027
CURRENT PORTION NOTES RECEIVABLE 6,247 6,247
INVENTORIES 80,610 (25,965) (B) 54,645
PREPAID EXPENSES 3,009 (636) (B) 2,373
DEFERRED INCOME TAXES 9,293 (311) (E) 8,982
------------- ------------ -------------
TOTAL CURRENT ASSETS 148,881 31,444 180,325
TIMBER AND TIMBERLANDS, NET 31,095 (31,095) (B,C) --
PROPERTY, PLANT AND EQUIPMENT, AT COST
LAND AND IMPROVEMENTS 21,637 (10,343) (B,C) 11,294
BUILDINGS 37,252 (9,990) (B,C) 27,262
MACHINERY AND EQUIPMENT 131,406 (57,832) (B,C) 73,574
CONSTRUCTION IN PROGRESS 5,713 (2,921) (B,C) 2,792
------------ ------------ -------------
196,008 (81,086) 114,922
ACCUMULATED DEPRECIATION (81,425) 35,545 (B,C) (45,880)
------------ ------------ -------------
NET PROPERTY, PLANT AND EQUIPMENT 114,583 (45,541) 69,042
NOTES RECEIVABLE 6,301 (95) (A) 6,206
GOODWILL 67,600 67,600
OTHER ASSETS 14,748 4,829 (B,C) 19,577
----------- ------------ -------------
TOTAL OPERATING ASSETS 383,208 (40,458) 342,750
CASH RESTRICTED FOR ASBESTOS COSTS 3,631 3,631
ASBESTOS COSTS TO BE REIMBURSED 832,115 832,115
----------- ------------ -------------
TOTAL ASSETS $1,218,954 ($40,458) $1,178,496
----------- ------------ -------------
----------- ------------ -------------
LIABILITIES AND EQUITY
CURRENT LIABILITIES:
CURRENT PORTION OF LONG-TERM DEBT $2,105 ($1,000) (D) $1,105
ACCOUNTS PAYABLE AND ACCRUED LIABILITIES 64,385 (313) (B) 64,072
RESERVE FOR ASBESTOS-RELATED COSTS 2,700 2,700
----------- ------------ -------------
TOTAL CURRENT LIABILITIES 69,190 (1,313) 67,877
LONG-TERM DEBT 99,988 (96,000) (D) 3,988
RESERVE FOR ASBESTOS-RELATED COSTS 9,620 9,620
OTHER LONG-TERM LIABILITIES 23,758 23,758
DEFERRED INCOME TAXES 19,395 (19,395) (E) --
----------- ------------ -------------
TOTAL OPERATING LIABILITIES 221,951 (116,708) 105,243
LONG TERM ASBESTOS CLAIMS SETTLEMENTS 818,184 818,184
ASBESTOS RELATED LONG TERM DEBT 23,041 23,041
----------- ------------ -------------
TOTAL LIABILITIES 1,063,176 (116,708) 946,468
STOCKHOLDERS' EQUITY:
COMMON STOCK, $.01 PAR VALUE,15,000,000
SHARES AUTHORIZED, 8,495,574 SHARES ISSUED 85 85
PAID IN CAPITAL IN EXCESS OF PAR
CONTRIBUTED CAPITAL 76,517 76,517
RETAINED EARNINGS 83,747 76,250 (F) 159,997
MINIMUM PENSION LIABILITY ADJUSTMENT (4,571) (4,571)
----------- ------------ -------------
TOTAL STOCKHOLDERS EQUITY 155,778 76,250 232,028
TOTAL LIABILITIES AND EQUITY $1,218,954 ($40,458) $1,178,496
----------- ------------ -------------
----------- ------------ -------------
</TABLE>
SEE ATTACHED NOTES
3
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FIBREBOARD CORPORATION AND SUBSIDIARIES
PRO FORMA CONSOLIDATED STATEMENT OF INCOME
FOR THE SIX MONTHS ENDED JUNE 30, 1995
(DOLLAR AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
PRO FORMA ADJUSTMENT
AS REPORTED ADJUSTMENTS KEY PRO FORMA
----------- ----------- ---------- -----------
<S> <C> <C> <C> <C>
NET SALES $253,190 ($77,834) (1) $175,356
COST OF SALES 197,356 (71,194) (1) 126,162
------------ ------------ -----------
GROSS MARGIN 55,834 (6,640) 49,194
SELLING AND ADMINISTRATIVE EXPENSES 40,134 (2,168) (1) 37,966
ASBESTOS-RELATED ITEMS (4,000) (4,000)
------------ ------------ -----------
OPERATING INCOME 19,700 (4,472) 15,228
INTEREST EXPENSE (3,929) 3,200 (2) (729)
INTEREST AND OTHER INCOME 884 2,021 (3) 2,905
------------ ------------ -----------
INCOME BEFORE INCOME TAXES 16,655 749 17,404
INCOME TAXES (6,660) (300) (4) (6,960)
------------ ------------ -----------
NET INCOME $9,995 $449 $10,444
------------ ------------ -----------
------------ ------------ -----------
EARNINGS PER SHARE
PRIMARY $1.11 $1.16
FULLY DILUTED $1.10 $1.15
COMMON EQUIVALENT SHARES (THOUSANDS)
(WEIGHTED AVERAGE)
PRIMARY 9,026 9,026
FULLY DILUTED 9,050 9,050
</TABLE>
SEE ATTACHED NOTES
4
<PAGE>
FIBREBOARD CORPORATION AND SUBSIDIARIES
PRO FORMA CONSOLIDATED STATEMENT OF INCOME
FOR THE TWELVE MONTHS ENDED DECEMBER 31, 1994
(DOLLAR AMOUNTS IN THOUSANDS, EXCEPT PER SHARE DATA)
(UNAUDITED)
<TABLE>
<CAPTION>
PRO FORMA ADJUSTMENT
AS REPORTED ADJUSTMENTS KEY PRO FORMA
----------- ------------ -----------
<S> <C> <C> <C> <C>
NET SALES $363,705 ($180,309) (1) $183,396
COST OF SALES 295,202 (162,341) (1) 132,861
------------ ------------ -----------
GROSS MARGIN 68,503 (17,968) 50,535
SELLING AND ADMINISTRATIVE EXPENSES 40,690 (5,298) (1) 35,392
ASBESTOS-RELATED ITEMS
------------ ------------ -----------
OPERATING INCOME 27,813 (12,670) 15,143
INTEREST EXPENSE (4,931) 3,321 (2) (1,610)
INTEREST AND OTHER INCOME 22,555 6,140 (3) 28,695
------------ ------------ -----------
INCOME BEFORE INCOME TAXES 45,437 (3,209) 42,228
INCOME TAXES (18,402) 1,300 (4) (17,102)
------------ ------------ -----------
NET INCOME $27,035 ($1,909) $25,126
------------ ------------ -----------
------------ ------------ -----------
EARNINGS PER SHARE
PRIMARY $3.01 $2.80
FULLY DILUTED $3.01 $2.79
COMMON EQUIVALENT SHARES (THOUSANDS)
(WEIGHTED AVERAGE)
PRIMARY 8,986 8,986
FULLY DILUTED 8,992 8,992
</TABLE>
SEE ATTACHED NOTES
5
<PAGE>
FIBREBOARD CORPORATION
Notes to Pro Forma Consolidated Financial Statements
Reflecting the Sale of the Wood Products Group
(Dollar Amounts in Thousands)
(Unaudited)
1. Principles of Presentation
On September 25, 1995 Fibreboard Corporation sold all of its Wood Products
Group conversion facilities and the majority of its timberlands to Sierra
Pacific Industries for $245,000 subject to a number of purchase price
adjustments.
For purposes of preparing these pro forma financial statements, such
purchase price adjustments have been estimated from available data.
However, the data used is preliminary and the pro forma adjustments
reflected in the statements which follow are subject to change.
The unaudited pro forma statements of income for the year ended December
31, 1994 and for the six months ended June 30, 1995 give effect to the
transaction as though it had occurred on January 1, 1994 and January 1,
1995. The unaudited pro forma balance sheet as of June 30, 1995 gives
effect to the transaction as though it had occurred on that date. The pro
forma statements of income and pro forma balance sheet are based on the
historical financial statements of Fibreboard Corporation for the year
ended December 31, 1994 and for the six months ended June 30, 1995.
Because the pro forma statements include only the adjustments described
below, they should not be considered indicative of the results that would
have occurred if the sale of the Wood Products Group had taken place on the
dates indicated or which may be obtained in the future.
The pro forma financial statements should be read in conjunction with the
consolidated financial statements of Fibreboard Corporation.
2. Pro Forma Balance Sheet Adjustments:
a. To increase cash and cash equivalents to reflect the net cash
generated from the sale of the Wood Products Group after the payment
of income taxes, reductions of outstanding debt and other costs.
b. To reduce assets and liabilities by the amount of assets purchased and
liabilities assumed by Sierra Pacific Industries.
c. To reclassify certain assets to be held for future sale and not sold
to Sierra Pacific Industries as other assets.
d. To reduce long term debt for assumed repayment of debt from proceeds
of the sale of Wood Products Group.
e. To reduce deferred taxes for the financial and tax basis differences
arising from this transaction.
f. To increase stockholders' equity by the estimated after-tax gain from
the sale of the Wood Products Group.
6
<PAGE>
3. Pro Forma Statement of Income Adjustments:
1. To eliminate sales and expenses directly attributable to the Wood
Products Group.
2. To adjust interest expense to reflect assumed debt repayment with
proceeds of the sale.
3. To adjust interest income to reflect the projected investment return
of the net proceeds from the sale of the Wood Products Group.
4. To adjust the income tax provision for items 1, 2 and 3 above.
7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
FIBREBOARD CORPORATION
----------------------
(Registrant)
Dated: October 9, 1995 By: /s/ Garold E. Swan
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Garold E. Swan
Vice President and Controller
8
<PAGE>
EXHIBIT 10.1
ASSET PURCHASE AND SALE AGREEMENT
THIS ASSET PURCHASE AND SALE AGREEMENT (this "Purchase Agreement") is
entered into as of September 6, 1995 (the "Effective Date"), by and among
SIERRA PACIFIC INDUSTRIES, a California corporation ("Buyer"), FIBREBOARD
CORPORATION, a Delaware corporation ("Fibreboard"), and FIBREBOARD BOX &
MILLWORK CORPORATION, a Delaware corporation ("FB&M"). Fibreboard and FB&M are
referred to collectively herein as "Sellers," and Buyer and Sellers are referred
to collectively herein as the "Parties." This Purchase Agreement is entered
into with reference to the following facts:
A. Fibreboard operates in two primary industry segments: building
products and resort operations. The building products segment of Fibreboard
includes, among other things, a wood products group that owns timberland and
manufactures lumber, hardwood plywood and other value-added wood products (the
"Wood Products Group"). Each of FB&M and Snider Lumber Products Co., Inc., a
Delaware corporation ("Snider"), is a wholly-owned subsidiary of Fibreboard
holding assets which are used in connection with the Wood Products Group.
B. Buyer owns a substantial amount of timberland and timber conversion
assets, and is experienced in the growth and harvesting of logs as well as the
manufacture of wood products.
C. Subject to the terms and conditions set forth in this Purchase
Agreement, Buyer desires to purchase a substantial portion of the assets and to
assume certain liabilities associated with the Wood Products Group, and Sellers
desire to sell and transfer to Buyer such assets and liabilities, all as more
fully set forth below.
NOW, THEREFORE, in consideration of the premises and the mutual promises
herein made, and in consideration of the representations, warranties and
covenants herein contained, the Parties agree as follows.
SECTION 1
DEFINED TERMS
Unless the context otherwise requires, terms in this Purchase Agreement
with initial letters capitalized shall have their respective meanings as set
forth in APPENDIX 1 attached hereto.
<PAGE>
SECTION 2
BASIC TRANSACTION
2.1 PURCHASE AND SALE OF ASSETS. On and subject to the terms and
conditions of this Purchase Agreement, Buyer agrees to purchase from Sellers,
and Sellers agree to sell, transfer, convey and deliver to Buyer, all of the
Acquired Assets at the Closing in exchange for the Purchase Price.
2.2 ASSUMPTION OF LIABILITIES. On and subject to the terms and
conditions of this Purchase Agreement, Buyer agrees to assume and become
responsible for all of the Assumed Liabilities at the Closing.
2.3 PURCHASE PRICE. Buyer agrees to pay to Fibreboard, as agent for
the Sellers (the "Agent"), through Escrow Holder at the Closing (pursuant to the
provisions of Article 3) TWO HUNDRED FORTY-FIVE MILLION DOLLARS
($245,000,000.00) (the "Purchase Price") by delivery of cash payable by wire
transfer or delivery of other funds which shall be immediately available to
Agent as of the Closing. The Purchase Price shall be subject to adjustment as
provided in Section 2.5 below.
2.4 PRE-CLOSING DISTRIBUTION. Immediately prior to the Closing,
Fibreboard shall cause Snider to distribute to Fibreboard an amount equal to
Snider's Cash as of such time. Fibreboard may cause Snider to make such payment
to Fibreboard in the form of a dividend or a redemption.
2.5 PURCHASE PRICE ADJUSTMENTS.
(i) The Purchase Price shall be adjusted to reflect the following:
(A) The aggregate change in Net Working Capital between the Base Amount
(Thirty-Four Million Five Hundred Thirty-Nine Thousand Dollars
($34,539,000.00) calculated as of April 1, 1995) and the amount (the
"Closing Amount") which shall exist immediately prior to the
Closing; PROVIDED, HOWEVER, that the Closing Amount may be
increased pursuant to the provisions of Section 6.7 below;
(B) The aggregate difference, as of the Closing Date, between the book
values of certain inventories of the Wood Products Group and the
"market values" thereof (such aggregate difference being herein
referred to as the "Market Value Differential"), all as more
specifically set forth on APPENDIX 2 attached hereto (under the
heading "Market Value Differential");
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(C) The difference between (1) the amount of any capital expenditures
(determined in accordance with GAAP applied consistently with the
principles used in the preparation of the Financial Statements) made
with respect to the Assets from and after April 1, 1995 to the
Closing Date and (2) the amount of booked depreciation recorded with
respect to the Assets (determined in accordance with GAAP applied
consistently with the principles used in the preparation of the
Financial Statements) from and after April 1, 1995 to the Closing
Date (the "Subsequent Capital Expenditures Differential"); and
(D) Each of (1) the "excess" of fee timber harvested over growth for the
period from June 20, 1994 to December 31, 1994 and (2) the "excess"
or "shortage" of fee timber harvested over growth for the period
from January 1, 1995 to the Closing Date (the net amount being
herein referred to as the "Timber Harvest Differential"), all as
more specifically set forth on APPENDIX 2 attached hereto (under
the heading "Timber Harvest Differential").
A positive or negative amount for (i) the differential between the Closing
Amount and the Base Amount (determined, for adjustment purposes, as the Closing
Amount LESS the Base Amount), (ii) the Market Value Differential (determined,
for adjustment purposes, as "market value" LESS book value) or (iii) the
Subsequent Capital Expenditures Differential (determined, for adjustment
purposes, as capital expenditures LESS booked depreciation recorded) will
result in corresponding increases or decreases, respectively, to the Purchase
Price, and a "shortage" or "excess" Timber Harvest Differential will result in
an increase or decrease, respectively, to the Purchase Price. The aggregate of
the adjustments to the Purchase Price set forth in the foregoing clauses (A),
(B), (C) and (D), which sum can be a positive or negative number, is herein
referred to as the "Adjustment Amount."
(ii) Fibreboard will prepare and deliver to Buyer, within 45 days
following the Closing Date, a statement certified by the chief financial officer
of Fibreboard (the "Closing Statement") of (A) the Closing Amount, (B) the
Market Value Differential, (C) the Subsequent Capital Expenditures Differential,
(D) the Timber Harvest Differential and (E) the Adjustment Amount. Buyer shall,
upon request, be allowed access to the working papers of Fibreboard (or its
accountants) used in preparing the Closing Statement. Prior to the 30th day
following Fibreboard's delivery to Buyer of the Closing Statement, if the
Adjustment Amount is a positive number then Buyer will pay the difference to
Fibreboard, and if the Adjustment Amount is a negative number then Fibreboard
will pay the difference to Buyer. Notwithstanding the foregoing, Buyer may
object to the Closing Statement by notifying Fibreboard
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within such 30-day period (such notice must contain a statement of the basis of
Buyer's objection(s)). Buyer's failure to so object shall be deemed Buyer's
acceptance of the Closing Statement. If Buyer gives such notice of objection,
then the issues in dispute will be submitted for resolution to Arbitration, and
any required payment will be made prior to the tenth business day following
resolution of issues in dispute by Arbitration.
(iii) Any payment of the Adjustment Amount will be made together
with simple interest thereon at six and one-half percent (6 1/2%) PER ANNUM
(beginning on the Closing Date and ending on the date of payment). Payment must
be made in immediately available funds and shall result in appropriate
adjustments to the Purchase Price allocation schedule provided for in Section
2.7 below and to be attached hereto as EXHIBIT A. Any Liabilities included
in the calculation of the Adjustment Amount, to the extent so included, shall
not constitute a breach of any of Sellers' representations and warranties in
this Purchase Agreement and shall not give Buyer any right to indemnification
with respect thereto.
2.6 RETURN OF ACCOUNTS RECEIVABLE. No more than 180 days after the
Closing Date, Buyer may elect to return to Fibreboard any accounts receivable
comprising Assets which are then at least 30 days past-due (by their respective
terms) by notifying Fibreboard, within such period, of Buyer's intent in this
regard; PROVIDED, HOWEVER, that Buyer (i) may effect any such return on only
five occasions and (ii) agrees that it shall exercise reasonable efforts to
effect collection of any such accounts (consistent with Buyer's Ordinary Course
of Business) prior to any such return. Buyer's notice to Fibreboard pursuant to
the foregoing sentence shall include an assignment of any such accounts
receivable which Buyer intends to return to Fibreboard (such assignment to be in
form and substance satisfactory to Fibreboard and its counsel). Within 10 days
of receiving such notice, Fibreboard shall pay Buyer for all such qualifying
accounts receivable with such payment to be equal to the sum of the respective
amounts for such accounts receivable used in the computation of the Closing
Amount LESS any reserve for doubtful accounts receivable included in the
calculation of the Closing Amount (solely for purposes of any returns after the
first occasion, the amount of such reserve shall be deemed reduced (or
eliminated) to the extent amounts otherwise payable to Buyer under this Section
2.6 have been reduced thereby). Immediately upon Fibreboard's payment therefor,
(i) the accounts receivable at issue shall no longer comprise a portion of the
Assets and (ii) appropriate adjustment will be made to the Purchase Price
allocation schedule provided for in Section 2.7 below and to be attached hereto
as EXHIBIT A.
2.7 ALLOCATION. The Parties agree to allocate the Purchase Price (and
all other capitalizable costs) among each item or class of the Acquired Assets
for all purposes (including
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financial accounting and tax purposes) in accordance with an allocation schedule
which shall be agreed upon among the Parties, in good faith discussions with
respect thereto, and attached hereto as EXHIBIT A prior to the Closing. The
Parties agree that they will prepare and file their respective federal and any
state or local income tax returns, and any sales tax returns or other filings,
based on such allocation of the Purchase Price. The Parties also agree that
they will prepare and file any notices or other filings required pursuant to
Section 1060 of the Code and that any such notices or filings will be prepared
based on such allocation of the Purchase Price.
SECTION 3
THE CLOSING
3.1 THE CLOSING. The closing of the transactions contemplated by this
Purchase Agreement (the "Closing") shall take place at the offices of Pillsbury
Madison & Sutro in San Francisco, California, commencing at 9:00 a.m. local time
on the later of (i) the second business day following the satisfaction or waiver
of all conditions to the obligations of the Parties to consummate the
transactions contemplated hereby, (ii) September 25, 1995 or (iii) such other
date as the Parties may mutually determine (the "Closing Date").
3.2 DELIVERIES PRIOR TO CLOSING. Prior to the Closing:
(i) Sellers shall (A) execute, acknowledge (if appropriate) and
deliver to Escrow Holder grant deeds to the Real Property (except for Real
Property owned by Snider) in the form attached hereto as EXHIBIT B-1 (the
"Deeds") and (B) cause to be delivered to Escrow Holder executed (and, if
appropriate, acknowledged) reconveyances of any deeds of trust (the
"Reconveyances") encumbering the Real Property in favor of Lender with respect
to Fibreboard's Revolving Facility;
(ii) Buyer shall deliver to Escrow Holder (A) the Purchase Price
and (B) the Estimated Proration Amount; and
(iii) Buyer and each Seller shall sign and deliver to Escrow Holder
such escrow instructions as Escrow Holder may request which are consistent with
the terms of this Agreement; PROVIDED, HOWEVER, that in the absence or
presence of such further instructions, Escrow Holder shall be entitled to rely
upon the terms of this Agreement as escrow instructions.
3.3 DELIVERIES AND INSTRUCTIONS AT CLOSING. At the Closing:
(i) Sellers shall execute, acknowledge (if appropriate) and deliver
to Buyer (A) a bill of sale for
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Acquired Assets constituting personal property in the form attached hereto as
EXHIBITS B-2, (B) a certificate representing all of the issued and
outstanding shares of capital stock of Snider (the "Shares"), together with an
assignment thereof transferring the Shares to Buyer, (C) such other instruments
of sale, transfer, conveyance and assignment as Buyer and its counsel reasonably
may request and (D) any releases (including termination statements on Form
UCC-3) necessary or which Buyer and its counsel reasonably may request in
respect of the termination of liens on the Assets in favor of Lender with
respect to the Revolving Facility;
(ii) The Agent shall deliver to Buyer the certificate and opinion
referred to in Sections 7.1(v) and 7.1(viii) below, respectively;
(iii) Buyer shall execute, acknowledge (if appropriate) and deliver
to Agent (A) an assumption in the form attached hereto as EXHIBIT C and (B)
such other instruments of assumption as Sellers and their counsel reasonably may
request;
(iv) Buyer shall deliver to the Agent the certificate and opinion
referred to in Sections 7.2(iv) and 7.2(vi) below, respectively;
(v) Escrow Holder shall be instructed by Agent to cause the
recordation of each of the Reconveyances and the Deeds in the official records
of the appropriate counties of the State of California; and
(vi) Escrow Holder shall deliver to Agent (A) the Purchase Price
(less any amounts Sellers direct be paid to Lender, which amounts Escrow Holder
shall deliver to Lender) and (B) the Estimated Proration Amount.
3.4 TIMING. Closing shall be deemed to have occurred when all
deliveries contemplated by Section 3.3 have been made and Escrow Holder has been
instructed by Agent to cause the recordation of the Reconveyances and the Deeds
as set forth in Section 3.3(v) above. The parties agree that the risk of loss
with respect to the Assets (including, without limitation, the Real Property)
shall transfer to Buyer when Closing is deemed to have occurred as provided in
the preceding sentence.
3.5 FILING BY ESCROW HOLDER. Promptly following the Closing, Escrow
Holder shall file the information return for the sale of the Real Property
required by Section 6045 of the Code.
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SECTION 4
REPRESENTATIONS AND WARRANTIES OF SELLERS
Sellers represent and warrant to Buyer that the statements contained in
this Section 4 are correct and complete as of the Effective Date and will be
correct and complete as of the Closing Date (as though made then and as though
the Closing Date were substituted for the Effective Date throughout this Section
4), except as set forth in the disclosure schedule accompanying this Purchase
Agreement as APPENDIX 3 (the "Disclosure Schedule"); PROVIDED, HOWEVER,
that the representations and warranties of FB&M shall apply solely to its
respective businesses and to the respective Acquired Assets presently owned by
it.
4.1 ORGANIZATION. Each of the Sellers and Snider is a corporation
duly organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation. Each of the Sellers and Snider is duly
authorized to conduct business and is in good standing under the laws of each
jurisdiction in which the nature of its business or the ownership or leasing of
its properties requires such qualification and the failure to so qualify would
have a material adverse effect on the Value of the Assets.
4.2 AUTHORIZATION. Each Seller has full corporate power and authority
to execute and deliver this Purchase Agreement and to perform its obligations
hereunder. The transactions contemplated by this Agreement do not require
approval by the stockholders of Fibreboard. This Purchase Agreement constitutes
the valid and legally binding obligation of each Seller, enforceable in
accordance with its terms and conditions, except as limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other laws of general
application affecting enforcement of creditors' rights generally.
4.3 NONCONTRAVENTION.
(i) To the Knowledge of the Officers, neither the execution and
delivery of this Purchase Agreement, nor the consummation of the transactions
contemplated hereby will (a) violate any material statute, regulation, rule,
judgment, order, decree, stipulation, injunction, charge or other restriction of
any government, governmental agency or court to which any of the Sellers or
Snider is subject or any provision of the charter or bylaws of any of the
Sellers or Snider, or (b) conflict with, result in a breach of, constitute a
default under, result in the acceleration of, create in any party the right to
accelerate, terminate, modify, or cancel or require any notice under any
material contract, lease, sublease, license, sublicense, franchise, permit,
indenture, agreement or mortgage for borrowed money, instrument of indebtedness,
Security Interest or other
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material arrangement to which any of the Sellers or Snider is a party or by
which any of the Sellers or Snider is bound or to which any of its material
assets are subject (or result in the imposition of any Security Interest upon
any of the material assets of any of the Sellers or Snider), except where the
violation, conflict, breach, default, acceleration, termination, modification,
cancellation, failure to give notice or Security Interest would not have a
material adverse effect on the Value of the Assets.
(ii) To the Knowledge of the Officers and except as contemplated by
this Agreement with respect to the Hart-Scott-Rodino Act (with reference to
Section 6.2 below) and the WARN Act (with reference to Section 11.16 below), the
Sellers and Snider need not give any notice to, make any filing with or obtain
any authorization, consent or approval of any government or governmental agency
in order for the Parties to consummate the transactions contemplated by this
Purchase Agreement, except where the failure to give notice, to file or to
obtain any authorization, consent or approval would not have a material adverse
effect on the Value of the Assets.
4.4 FINANCIAL STATEMENTS. Attached hereto as EXHIBIT D are the
following consolidating financial statements for the Wood Products Group
(collectively, the "Financial Statements"):
(i) a combined balance sheet (at April 1, 1995);
(ii) a statement of the combined operating results for calendar
year 1994;
(iii) a combined balance sheet at December 31, 1994 (including
combined details at December 31, 1994 for (a) receivables, (b)
inventory, (c) timber and timberlands, and (d) plants, property and
equipment);
(iv) a statement of the combined operating results for calendar
years 1994, 1993 and 1992; and
(v) a combined balance sheet at December 31, 1994, 1993 and 1992.
The Financial Statements have been prepared applying the significant accounting
policies of the Wood Products Group consistently throughout the periods covered
thereby (a statement of these policies is included as part of the Disclosure
Schedule), with the exceptions noted in the Disclosure Schedule.
4.5 DISCLOSURE. To the Knowledge of the Officers, Sellers have
disclosed or made available to representatives of Buyer all material information
regarding all Adverse Consequences, including Environmental Conditions Affecting
the Assets, which could have a material adverse effect on the Value of the
Assets.
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4.6 PERSONAL PROPERTY ASSETS. Other than restrictions under the
Securities Act and state securities laws affecting any subsequent transfer of
the Shares, Sellers will transfer to Buyer good and marketable title to, or a
valid leasehold interest in, the material personal property assets which
constitute a portion of the Acquired Assets (including, without limitation, the
Shares), free and clear of any Security Interest. Promptly following the
Closing, Snider will have good and marketable title to, or a valid leasehold
interest in, the material personal property assets which constitute a portion of
the Snider Assets, free and clear of any Security Interest.
4.7 REAL PROPERTY. APPENDIX 4 attached hereto lists and describes
briefly all parcels of real property comprising the Real Property. With respect
to each such parcel:
(i) There are no pending or, to the Knowledge of the Officers,
threatened condemnation proceedings relating thereto;
(ii) There are no leases, subleases, licenses, concessions or other
agreements, written or oral, granting to any party or parties the right of use
or occupancy of any portion thereof which could have a material adverse effect
on the Value of the Assets; and
(iii) There are no outstanding options or rights of first refusal
to purchase the parcel, or any portion thereof or interest therein.
4.8 HARVESTING. Harvesting of timber from the Timberland by
Fibreboard during 1995 has followed the uneven-aged harvest practices
incorporated in Fibreboard's timber harvest plans, copies of which have been
made available to representatives of Buyer.
4.9 ENDANGERED SPECIES. To the Knowledge of the Officers, there are
no Endangered Species located on the Timberland.
4.10 INSURANCE. Each of the Sellers and Snider has been covered during
the past five years by insurance in scope and amount customary and reasonable
for the businesses in which it has engaged during the aforementioned period.
4.11 BROKERS' FEES. Sellers and Snider have no Liability or obligation
to pay any fees or commissions to any broker, finder or agent with respect to
the transactions contemplated by this Purchase Agreement for which Buyer could
become liable or obligated.
4.12 NON-FOREIGN PERSONS. None of the Sellers or Snider is a "foreign
person" as defined in Section 1445 of the Code.
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SECTION 5
REPRESENTATIONS, WARRANTIES AND COVENANTS OF BUYER
Buyer represents and warrants to Sellers that the statements contained in
this Section 5 are correct and complete as of the Effective Date and will be
correct and complete as of the Closing Date (as though made then and as though
the Closing Date were substituted for the Effective Date throughout this Section
5). Buyer also covenants with Sellers as set forth in this Section 5.
5.1 ORGANIZATION OF BUYER. Buyer is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation.
5.2 AUTHORIZATION OF TRANSACTION. Buyer has full corporate power and
authority to execute and deliver this Purchase Agreement and to perform its
obligations hereunder. This Purchase Agreement constitutes the valid and
legally binding obligation of Buyer, enforceable in accordance with its terms
and conditions, except as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally.
5.3 NONCONTRAVENTION.
(i) Neither the execution and the delivery of this Purchase
Agreement, nor the consummation of the transactions contemplated hereby, will
(a) violate any material statute, regulation, rule, judgment, order, decree,
stipulation, injunction, charge or other restriction of any government,
governmental agency or court to which Buyer is subject or any provision of
Buyer's charter or bylaws or (b) conflict with, result in a breach of,
constitute a default under, result in the acceleration of, create in any party
the right to accelerate, terminate, modify or cancel or require any notice under
any material contract, lease, sublease, license, sublicense, franchise, permit,
indenture, agreement or mortgage for borrowed money, instrument of indebtedness,
Security Interest or other material arrangement to which Buyer is a party or by
which it is bound or to which any of its material assets is subject.
(ii) Except as contemplated by this Agreement with respect to the
Hart-Scott-Rodino Act (with reference to Section 6.2 below), Buyer does not need
to give any notice to, make any filing with, or obtain any authorization,
consent or approval of any government or governmental agency in order for the
Parties to consummate the transactions contemplated by this Purchase Agreement.
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5.4 BROKERS' FEES. Buyer has no Liability or obligation to pay any
fees or commissions to any broker, finder or agent with respect to the
transactions contemplated by this Purchase Agreement for which any Seller could
become liable or obligated.
5.5 PURCHASE "AS IS."
(i) Buyer acknowledges and agrees that Buyer has had the
opportunity to thoroughly inspect and review the Assets and the Purchase
Considerations.
(ii) Buyer acknowledges and agrees that (a) Buyer has substantial
experience with real property such as the Real Property, assets such as the
Conversion Assets and issues such as the Purchase Considerations, and (b) except
for the Agreed-Upon Buyer's Recourse (if any), Buyer is acquiring the Acquired
Assets (directly) and the Snider Assets (indirectly through ownership of the
Shares)
"AS-IS, WHERE-IS, WITH ALL FAULTS,"
in their current condition, and solely in reliance on Buyer's own due diligence,
inspections and examinations of the Assets.
(iii) Buyer acknowledges and agrees that (a) except as expressly
set forth in Article 4 of this Purchase Agreement, neither any Seller nor any
agent, representative or employee of any Seller has made any representations or
warranties on which Buyer shall be in any way entitled to rely with respect to
the Assets or the Purchase Considerations, whether direct or implied, verbal or
written, and (b) each of the Sellers may disclaim and has hereby expressly
disclaimed any and all representations and warranties which are not expressly
set forth in Article 4 above.
5.6 ENVIRONMENTAL CONDITIONS.
(i) Buyer acknowledges and agrees that (a) although Buyer has
received from Sellers the representation contained in Section 4.5 above (which
is made to the Knowledge of the Officers) and is entitled to indemnification for
breach of such representation (if any), insofar as it relates to Environmental
Conditions Affecting the Assets, pursuant to Section 10.4(i)(a) below, and Buyer
is otherwise entitled to indemnification under certain circumstances as set
forth in Section 10.4(i)(b) below, Buyer shall, except for the Agreed-Upon
Buyer's Recourse (if any), bear and assume the risk that its investigations,
inspections and inquiries regarding the Assets and records relating thereto may
not have revealed adverse or undesirable Environmental Conditions Affecting the
Assets; and (b) Buyer shall make no claim against any Seller or any Seller's
Related Parties based on allegations that the Officers should have known of
other material information regarding Environmental Conditions Affecting the
Assets which information was not disclosed to
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Buyer, or that (apart from the Knowledge of the Officers pursuant to Section 4.5
above) Sellers or their Related Parties otherwise had (or should have had)
knowledge of such information.
(ii) Having taken into account the possibility of unknown and/or
undiscovered adverse or undesirable Environmental Conditions Affecting the
Assets, and with the exception of the Agreed-Upon Buyer's Recourse (if any),
Buyer hereby waives, releases and discharges forever each Seller and each
Seller's Related Parties from all present and future Adverse Consequences
arising out of or in any way connected with any Environmental Conditions
Affecting the Assets (including, without limitation, any Environmental
Conditions Affecting the Assets resulting from the use, maintenance, ownership
or operation of the Assets by any of the Sellers or Snider). Buyer acknowledges
and agrees that it is the intention of the Parties that, with the exception of
the Agreed-Upon Buyer's Recourse (if any), any and all responsibilities and
obligations of Sellers, and any and all rights or claims against Sellers by
Buyer, its successors, assigns or affiliated entities, arising by virtue of any
Environmental Conditions Affecting the Assets are by this release provision
declared null and void and of no present or future effect as to such parties.
Buyer hereby waives the benefits of Section 1542 of the California Civil Code,
which provides as follows:
A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT
KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE
RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS
SETTLEMENT WITH THE DEBTOR.
5.7 INVESTMENT. Buyer (i) understands that the Shares have not been,
and will not be, registered under the Securities Act, or under any state
securities laws, and are being offered and sold in reliance upon federal and
state exemptions for transactions not involving any public offering, (ii) is
acquiring the Shares solely for its own account for investment purposes, and not
with a view to the distribution thereof, and (iii) confirms that Fibreboard has
made available to Buyer and its representatives and agents the opportunity to
ask questions of the officers and managers of Snider, to acquire such additional
information about the Snider Assets and the business, operation and condition of
Snider as Buyer has requested, and all such information has been received.
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SECTION 6
PRE-CLOSING COVENANTS
The Parties agree as set forth in this Section 6 with respect to the
period between the execution of this Purchase Agreement and the Closing.
6.1 GENERAL. Each of the Parties shall use its reasonable efforts to
take all action and to do all things necessary, proper or advisable to
consummate and make effective the transactions contemplated by this Purchase
Agreement (including satisfying the Closing conditions set forth in Section 7
below) at the earliest possible time following the Effective Date.
6.2 NOTICES AND CONSENTS. Sellers shall give any notices to third
parties, and shall use their reasonable efforts to obtain any third party
consents, that Buyer reasonably may request. Each of the Parties shall (and
Fibreboard shall cause Snider to) (i) file any Notification and Report Forms and
related material that it may be required to file with the Federal Trade
Commission and the Antitrust Division of the United States Department of Justice
under the Hart-Scott-Rodino Act, (ii) use its reasonable efforts to obtain an
early termination of the applicable waiting period, and (iii) make any further
filings pursuant thereto that may be necessary, proper or advisable. Each of
the Parties shall use its reasonable efforts to take any additional action that
may be necessary, proper or advisable in connection with any other notices to,
filings with and authorizations, consents and approvals of governments,
governmental agencies and third parties that it may be required to give, make or
obtain.
6.3 OPERATION OF BUSINESS. Except as contemplated by this Agreement
or instructions delivered from Buyer to Sellers, the Sellers shall not permit
the Wood Products Group, insofar as the Assets are concerned, to engage in any
practice, take any action, embark on any course of inaction or enter into any
transaction outside the Ordinary Course of Business.
6.4 PRESERVATION OF BUSINESS. Except as contemplated by this
Agreement (including, without limitation, Section 11.16 below) or instructions
delivered from Buyer to Sellers, the Sellers shall cause the Wood Products
Group, insofar as the Assets are concerned, to keep its business and properties
substantially intact, including its present operations, physical facilities,
working conditions and relationships with lessors, licensors, suppliers,
customers and employees.
6.5 FULL ACCESS. The Sellers shall permit representatives of Buyer to
have full access at all reasonable times, and in a manner so as not to interfere
with the normal business operations of the Wood Products Group, to all premises,
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properties, books, records, contracts, tax records and documents of or
pertaining to the Assets; PROVIDED, HOWEVER, that (a) whenever the tax
records for the Wood Products Group are included as part of the tax records
(such as the returns) for the affiliated group, within the meaning of Section
1504 of the Code (or any combined, consolidated, unitary group or similar group
for purposes of any applicable foreign, state or local law), of which Fibreboard
is a member, the Sellers shall only be required to provide access to the
schedule or part thereof for such group which relates to the Wood Products Group
(or, when available, any PRO FORMA tax records prepared for the Wood
Products Group) and (b) prior to conducting any investigations regarding
Environmental Conditions Affecting the Assets Buyer shall execute and deliver to
Agent an Access Agreement in substantially the form attached hereto as EXHIBIT
E.
6.6 NOTICE OF DEVELOPMENTS. Sellers shall give prompt written notice
to Buyer of any material development adversely affecting the Value of the
Assets. Each Party shall give prompt written notice to the other of any
material development affecting the ability of such Party to consummate the
transactions contemplated by this Purchase Agreement. Any written notice
provided by any Seller to Buyer after the Effective Date and prior to the
Closing shall be deemed to supplement, and thereby become a part of, the
Disclosure Schedule.
6.7 NEW MEXICO CUTTING RIGHTS. The cutting rights held by the Wood
Products Group and applicable to certain land in the State of New Mexico (Raton
Ranch) are identified on APPENDIX 5 hereto as an "Excluded Asset," and a
related contract to lease railroad flatcars from F.B. Leasing is identified on
APPENDIX 4 hereto as an "Asset" (the Wood Products Group uses the railroad
flatcars to transport logs produced from the cutting rights). Notwithstanding
such identification of such cutting rights and such lease, or any other
provision of this Purchase Agreement to the contrary, if Buyer notifies
Fibreboard in writing prior to September 25, 1995 that Buyer wishes to acquire
such cutting rights, then (a) Buyer may acquire such cutting rights (I.E., the
relevant timber deed shall be deemed to constitute an Asset) at a value therefor
to be determined by negotiation in good faith between Fibreboard and Buyer prior
to September 25, 1995, (b) to effect payment for such rights, the Closing Amount
(as discussed in Section 2.5 above) shall be increased by the amount of such
value, and (c) Buyer shall be deemed to have sublet the F.B. Leasing railroad
flatcar lease and assumed all of Fibreboard's rights and obligations with
respect thereto; however, in the absence of such notice, (x) the cutting rights,
as well as the related logs, shall remain "Excluded Assets" (and Buyer shall
have no rights with respect thereto) and (y) the F.B. Leasing railroad flatcar
lease shall be deemed removed from its status as an "Asset" (and shall remain
the right and obligation of Fibreboard).
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SECTION 7
CONDITIONS TO OBLIGATION TO CLOSE
7.1 CONDITIONS TO OBLIGATION OF BUYER. The obligation of Buyer to
consummate the transactions to be performed by it in connection with the Closing
is subject to satisfaction of the following conditions:
(i) the representations and warranties set forth in Section 4 above
shall be true and correct in all material respects at and as of the Closing
Date;
(ii) Sellers shall have performed and complied with all of their
covenants hereunder in all material respects through the Closing;
(iii) Sellers shall have procured such of the third party consents
specified in Section 6.2 above under which the consequences of a failure to
obtain consent could have a material adverse effect on the Value of the Assets;
(iv) no action, suit or proceeding shall be pending before any
court or quasi-judicial or administrative agency of any federal, state, local or
foreign jurisdiction wherein an unfavorable judgment, order, decree,
stipulation, injunction or charge would (a) prevent consummation of any of the
transactions contemplated by this Purchase Agreement, (b) cause any of the
transactions contemplated by this Purchase Agreement to be rescinded following
consummation, or (c) affect materially and adversely the right of Buyer to own,
operate or control the Acquired Assets or, indirectly through ownership of the
Shares, the Snider Assets (and no such judgment, order, decree, stipulation,
injunction or charge shall be in effect);
(v) the Agent shall have delivered to Buyer a certificate to the
effect that each of the conditions specified above in Sections 7.1(i)-(iv) is
satisfied in all material respects;
(vi) all applicable waiting periods (and any extensions thereof)
under the Hart-Scott-Rodino Act shall have expired or otherwise been terminated;
(vii) the Escrow Holder shall be prepared to deliver to Buyer a
standard owner's policy of title insurance equivalent to a CLTA policy of title
insurance for each parcel of the Real Property insuring that, promptly following
the Closing and the recordation of the Deeds as contemplated by Section 3.3(v)
above, Buyer (or Snider with respect to Real Property owned by Snider) shall be
vested with good and marketable title thereto (with exceptions to such policies
which are either standard or
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reasonable for real property such as the Real Property at issue);
(viii) Buyer shall have received from counsel to Sellers an opinion
reasonably satisfactory to Buyer, addressed to Buyer and dated as of the Closing
Date;
(ix) Any investigations conducted by Buyer with respect to the Real
Property shall not have revealed circumstances which are unknown to Buyer as of
the Effective Date and which could effect a material adverse change in the Value
of the Assets (as compared to the Value of the Assets on the Effective Date,
assuming the absence of such circumstances); PROVIDED, HOWEVER, that if
Buyer shall not have delivered notice to Agent on or prior to August 31, 1995
regarding a failure of the conditions to Closing contemplated by this Section
7.1(ix), then such conditions shall be deemed satisfied or waived;
(x) Except as set forth in the Disclosure Schedule as of the
Effective Date, there shall have been no material adverse change in the Value of
the Assets as compared to the Effective Date; and
(xi) all actions to be taken by Sellers in connection with the
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments and other documents required to effect the transactions
contemplated hereby will be reasonably satisfactory in form and substance to
Buyer.
Buyer may waive any condition specified in this Section 7.1 if Buyer executes
and delivers to Agent a writing so stating at or prior to the Closing.
7.2 CONDITIONS TO OBLIGATION OF SELLERS. The obligations of Sellers
to consummate the transactions to be performed by each of them in connection
with the Closing are subject to satisfaction of the following conditions:
(i) the representations, warranties and acknowledgements set forth
in Section 5 above shall be true and correct in all material respects at and as
of the Closing Date;
(ii) Buyer shall have performed and complied with all of its
covenants hereunder in all material respects through the Closing;
(iii) no action, suit or proceeding shall be pending before any
court or quasi-judicial or administrative agency of any federal, state, local or
foreign jurisdiction wherein an unfavorable judgment, order, decree,
stipulation, injunction or charge would (a) prevent consummation of any of the
transactions contemplated by this Purchase Agreement or (b) cause any of the
transactions contemplated by this Purchase Agreement to be
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rescinded following consummation (and no such judgment, order, decree,
stipulation, injunction or charge shall be in effect);
(iv) Buyer shall have delivered to Agent a certificate to the
effect that each of the conditions specified above in Sections 7.2(i)-(iii) is
satisfied in all material respects;
(v) all applicable waiting periods (and any extensions thereof)
under the Hart-Scott-Rodino Act shall have expired or otherwise been terminated;
(vi) Agent shall have received from counsel to Buyer an opinion
reasonably satisfactory to Agent, addressed to Sellers and dated as of the
Closing Date; and
(vii) all actions to be taken by Buyer in connection with the
consummation of the transactions contemplated hereby and all certificates,
opinions, instruments and other documents required to effect the transactions
contemplated hereby will be satisfactory in form and substance to Agent.
Sellers may waive any condition specified in this Section 7.2 if Agent executes
and delivers to Buyer a writing so stating at or prior to the Closing.
SECTION 8
TERMINATION
8.1 TERMINATION OF PURCHASE AGREEMENT.
The Parties may terminate this Purchase Agreement as provided below:
(i) Buyer and Sellers may terminate this Purchase Agreement by
mutual written consent at any time prior to the Closing;
(ii) Buyer may terminate this Purchase Agreement by giving written
notice to Agent at any time prior to the Closing in the event that any Seller is
in breach, and any Seller may terminate this Purchase Agreement by giving
written notice to Buyer at any time prior to the Closing in the event that Buyer
is in breach, of any material representation, warranty or covenant contained in
this Purchase Agreement in any material respect and such breach is not
substantially cured within ten business days of the breaching Party's receipt of
such notice; PROVIDED, HOWEVER, that if a Party is attempting to cure such
breach with commercially reasonable diligence on the tenth (10th) business day
after receipt of such notice, such period shall be extended to thirty (30)
business days after receipt of
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such notice so long as the Party continues to attempt to cure with commercially
reasonable diligence;
(iii) Buyer may terminate this Purchase Agreement by giving written
notice to Agent at any time prior to the Closing if the Closing shall not have
occurred on or before March 31, 1996 by reason of the failure of any condition
precedent under Section 7.1 hereof (unless the failure results primarily from
Buyer itself breaching any representation, warranty or covenant contained in
this Purchase Agreement); or
(iv) Any Seller may terminate this Purchase Agreement by giving
written notice to Buyer at any time prior to the Closing if the Closing shall
not have occurred on or before March 31, 1996 by reason of the failure of any
condition precedent under Section 7.2 hereof (unless the failure results
primarily from any Seller breaching any representation, warranty or covenant
contained in this Purchase Agreement).
8.2 EFFECT OF TERMINATION. If any Party terminates this Purchase
Agreement pursuant to Section 8.1 above, all obligations of the Parties
hereunder shall terminate without any Liability of any Party to any other Party
(except for any Liability of any Party then in breach).
SECTION 9
POST-CLOSING COVENANTS
Sellers and Buyer agree as set forth in this Section 9 with respect to the
period following the Closing.
9.1 GENERAL. In case at any time after the Closing any further action
is necessary or desirable to carry out the purposes of the Purchase Agreement,
each Party shall take (and Buyer shall cause Snider to take) such further action
(including the execution and delivery of such further instruments and documents)
as any Party reasonably may request, all at the sole cost and expense of the
requesting Party (unless the requesting Party is entitled to indemnification
therefor under Section 10 below).
9.2 ACCESS. Without limiting the provisions of Section 9.1, Buyer
shall cause the former employees of the Wood Products Group who were previously
responsible for preparing the financial information of the Wood Products Group
(to the extent such former employees are employed by Buyer, Snider or any
Affiliate of Buyer) to assist in the preparation of the Closing Statement, and
Buyer shall permit Fibreboard and its representatives to have such access to the
premises, assets, records and employees of Buyer, Snider and any Affiliate of
Buyer as shall be reasonably necessary for the preparation of
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(i) the Closing Statement and (ii) any financial statements of any Seller for
periods prior to or including the Closing Date, all without cost to Fibreboard.
9.3 LITIGATION SUPPORT. In the event and for so long as any Party
actively is contesting or defending against any charge, complaint, action, suit,
proceeding, hearing, investigation, claim or demand in connection with (i) any
transaction contemplated under the Purchase Agreement or (ii) any fact,
situation, circumstance, status, condition, activity, practice, plan,
occurrence, event, incident, action, failure to act or transaction on or prior
to the Closing Date involving the Assets (including, without limitation, any
Adverse Consequences), each Party will (and Buyer will cause Snider to)
cooperate with the contesting or defending Party and its counsel in the contest
or defense, make available its personnel and provide such testimony and access
to its books and records as shall be necessary and reasonable in connection with
the contest or defense, all at the sole cost and expense of the contesting or
defending Party (unless the contesting or defending Party is entitled to
indemnification therefor under Section 10 below).
9.4 TRANSITION. Except upon instructions delivered from Buyer to
Sellers, each Seller will refrain from taking any action that primarily is
designed or intended to have the effect of discouraging any lessor, licensor,
customer, supplier or other business associate of the Wood Products Group,
insofar as the Assets are concerned, from maintaining the same business
relationships with Buyer (or Snider) after the Closing as it maintained with the
Wood Products Group prior to the Closing. Each Seller will refer all customer
inquiries relating to the businesses of the Wood Products Group, insofar as the
Assets are concerned, to Buyer from and after the Closing.
9.5 CORPORATE NAMES. Without limitation, Buyer expressly acknowledges
and agrees that the name "Fibreboard," and any derivation thereof (E.G.,
"Fibreboard Box & Millwork Corporation," "Fibreboard Wood Products Co." and the
Fibreboard logo) shall not constitute an Asset and shall remain the exclusive
property of Fibreboard. Neither Buyer nor any Affiliate of Buyer shall, in any
way, infringe upon Fibreboard's use or rights to such name (and any derivation
thereof); PROVIDED, HOWEVER, that although Buyer agrees to exercise
reasonable efforts to mark properly all products and inventory of Buyer
comprising Assets immediately after the Closing, Fibreboard (i) acknowledges
that it may not be reasonable or practical for Buyer to replace or remove
certain marks or logos existing on products or inventory as of the Closing
(E.G., because such products or inventory have already been packaged for
shipping) the use of which marks or logos is otherwise violative of this Section
9.5, and (ii) solely in those limited circumstances, Fibreboard shall be deemed
to have granted Buyer a license to use such marks and logos for purposes of the
sale of such products and inventory by Buyer promptly after Closing
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consistent with the pre-Closing Ordinary Course of Business of the Wood Products
Group (without limiting Fibreboard's rights under Section 10.3(ii) below).
SECTION 10
INDEMNIFICATION AND REMEDIES
10.1 SURVIVAL. All of the representations, warranties and covenants of
the Parties contained in this Purchase Agreement shall survive the Closing
(unless Buyer, on the one hand, or Sellers, on the other hand, knew or had
reason to know of any misrepresentation or breach of warranty or covenant of
Sellers or Buyer, as the case may be, at the time of Closing in which event the
affected representation(s), warranty(ies) or covenant(s), or relevant portion(s)
thereof, shall not survive the Closing), but shall continue in force and effect
solely for a period of one year thereafter (the "Survival Period"); PROVIDED,
HOWEVER, that:
(i) the covenants of Fibreboard under Section 10.4(i) shall
survive the Closing as provided for therein; and
(ii) the following shall survive the Closing without limitation as
to time:
(a) the obligations of Fibreboard under Section 10.2(ii)(b);
(b) the obligations of Buyer under Sections 10.3(ii),
10.4(i)(e) and 10.4(ii); and
(c) the provisions of Sections 2.2, 2.7, 3.4, 5.5, 5.6, 9,
10.5, 10.6, 10.7 and 11.
10.2 CERTAIN INDEMNIFICATION PROVISIONS FOR BUYER'S BENEFIT.
(i) SELLER'S BREACH. In the event that any Seller breaches any
of its representations, warranties and covenants contained in the Purchase
Agreement, and provided that the particular representation, warranty or covenant
(or portion thereof) survives the Closing and that Buyer makes a written claim
for indemnification against Fibreboard within the Survival Period, then
Fibreboard agrees to indemnify Buyer from and against any Adverse Consequences
Buyer reasonably may suffer through and after the date of the claim for
indemnification resulting from or caused by the breach; PROVIDED, HOWEVER,
that this Section 10.2(i) shall not apply to any breach by any Seller of a
representation or warranty made in Section 4.5 above insofar as such Section 4.5
relates to Environmental Conditions
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Affecting the Assets (any such breach being the subject, instead, of Section
10.4(i)(a) below).
(ii) OTHER EVENTS.
(A) Provided that Buyer makes a written claim for
indemnification against Fibreboard within the Survival Period, Fibreboard agrees
to indemnify Buyer from and against any Adverse Consequences Buyer reasonably
may suffer resulting from or caused by any Liability of the Wood Products Group
which is not an Assumed Liability.
(B) In addition to the foregoing Section 10.2(ii)(a),
Fibreboard agrees to indemnify Buyer from and against any Adverse Consequences
Buyer reasonably may suffer (directly or indirectly through its ownership of the
capital stock of Snider) resulting from or caused by any Liability of Snider to
which Buyer would not have been subject (directly or indirectly through Buyer's
ownership of the capital stock of Snider) if Buyer had purchased the Snider
Assets pursuant to this Purchase Agreement rather than the Shares; PROVIDED,
HOWEVER, that in addition to the Assumed Liabilities, this indemnity shall not
include costs relating to the operation, from and after the Closing Date, of
Snider as a corporation.
10.3 CERTAIN INDEMNIFICATION PROVISIONS FOR SELLERS' BENEFIT.
(i) BUYER'S BREACH. In the event Buyer breaches any of its
representations, warranties and covenants contained in this Purchase Agreement,
and provided that the particular representation, warranty or covenant (or
portion thereof) survives the Closing and any Seller makes a written claim for
indemnification against Buyer within the Survival Period, then Buyer agrees to
indemnify each Seller from and against any Adverse Consequences any Seller
reasonably may suffer through and after the date of the claim for
indemnification resulting from or caused by the breach.
(ii) OTHER EVENTS. Buyer agrees to indemnify each Seller from
and against any Adverse Consequences any Seller reasonably may suffer resulting
from or caused by any Assumed Liability; PROVIDED, HOWEVER, that any such
indemnification shall be limited to the extent Buyer is entitled to any
Agreed-Upon Buyer's Recourse in respect thereof.
10.4 ENVIRONMENTAL INDEMNIFICATION PROVISIONS.
(i) PROVISIONS FOR BUYER'S BENEFIT.
(A) BREACH OF REPRESENTATION. In the event that any
Seller breaches the representations and warranties made in Section 4.5 above
insofar as such Section 4.5 relates to Environmental Conditions Affecting the
Assets, and provided that
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Buyer makes a written claim for indemnification against Fibreboard within five
years after the Closing, then Fibreboard agrees to indemnify Buyer from and
against any Adverse Consequences Buyer reasonably may suffer through and after
the date of the claim for indemnification resulting from or caused by the
breach.
(B) LIMITED INDEMNITY. In addition to any indemnification
which may be available to Buyer pursuant to the foregoing Section 10.4(i)(a), if
Buyer makes any Qualifying Claims, then Fibreboard shall indemnify Buyer for the
amount of such Qualifying Claims which amount is actually incurred by Buyer;
PROVIDED, HOWEVER, that once (and if) Qualifying Claims aggregate in excess
of Two Million Dollars ($2,000,000.00), and thereafter until (and if) Qualifying
Claims aggregate in excess of Ten Million Dollars ($10,000,000.00), Fibreboard's
obligation to indemnify Buyer shall be limited to two-thirds of each dollar of
such Qualifying Claims (so that Fibreboard shall be obligated for (i) the full
amount of the first Two Million Dollars ($2,000,000.00) in Qualifying Claims,
(ii) only two-thirds of each of the next Eight Million Dollars ($8,000,000.00)
in Qualifying Claims and (iii) the full amount of Qualifying Claims aggregating
in excess of Ten Million Dollars ($10,000,000.00)).
(C) QUALIFYING CLAIMS. "Qualifying Claims" shall include
only the following potential claims:
(1) BUYER'S INITIATIVE. Any claim by Buyer for costs and
expenses in respect of Environmental Conditions Affecting the
Assets which are incurred at Buyer's initiative, but only to
the extent that such claim:
(a) arises out of circumstances (i) which occurred or
existed prior to the Closing Date and (ii) about which
Buyer has notified Fibreboard, in general terms, within
two years after the Closing Date;
(b) specifies in reasonable detail (i) a plan of action
(E.G., a remediation plan) intended to test for,
repair, remove or remediate such Environmental
Conditions Affecting the Assets and (ii) a budget for
the costs and expenses which are reasonably expected to
be incurred in connection therewith; and
(c) is received by Fibreboard within three years after the
Closing Date;
PROVIDED, HOWEVER, that:
(x) so long as any plan of action and related budget
received by Fibreboard within the
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three-year period set forth in clause (c)(1)(c) above
are prepared in good faith and with reasonable diligence
as a complete plan of action and budget, then any
reasonable modifications which are reasonably necessary
for such plan of action and budget as a result of
circumstances discovered in the course of implementing
such plan shall be permitted upon prompt notification
thereof to Fibreboard; and
(Y) any claim under this clause (c)(1) shall be valid only
(i) with respect to the specific plan of action and
related budget of costs and expenses detailed (as they
may be modified permissibly pursuant to clause (c)(1)(x)
above) and (ii) to the extent the plan of action (as it
may be modified permissibly pursuant to clause (c)(1)(x)
above) is substantially completed by Buyer within five
years after the Closing Date.
(2) GOVERNMENTAL ACTION. Any claim concerning Adverse
Consequences in respect of Environmental Conditions Affecting
the Assets which Adverse Consequences are reasonably incurred
to comply with any governmental action, order or other
directive or as a result of any settlement of a third party
claim or judgment against Buyer, Snider or any Seller, but
only to the extent that:
(a) such action, order, directive, claim, judgment or any
proceeding relating thereto (i) has not been instigated,
directly or indirectly, by Buyer (it being understood
that any necessary compliance by Buyer with laws
requiring the filing of reports concerning environmental
matters with regulatory agencies shall not constitute
"instigation") and (ii) arises out of circumstances
which occurred or existed prior to the Closing Date; and
(b) notice thereof is received by Buyer and forwarded to
Fibreboard within five years after the Closing Date.
(3) FACILITY CLOSURES. Any claim by Buyer for costs and
expenses in respect of the testing for, removal or remediation
of Hazardous Materials on or about a Facility at which Buyer
permanently ceases all operations within seven years after
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the Closing Date (a "Facility Closure"), but only to the
extent that such claim:
(a) arises out of circumstances (i) which occurred or
existed prior to the Closing Date and (ii) about which
Buyer has notified Fibreboard, in general terms, within
two years after the Facility Closure at issue;
(b) specifies in reasonable detail (i) a plan of action
(E.G., a remediation plan) intended to test for,
remove or remediate such Hazardous Materials and (ii) a
budget for the costs and expenses which are reasonably
expected to be incurred in connection therewith; and
(c) is received by Fibreboard within three years after the
Facility Closure at issue;
PROVIDED, HOWEVER, that:
(x) so long as any plan of action and related budget
received by Fibreboard within the three-year period set
forth in clause (c)(3)(c) above are prepared in good
faith and with reasonable diligence as a complete plan
of action and budget, then any reasonable modifications
which are reasonably necessary for such plan of action
and budget as a result of circumstances discovered in
the course of implementing such plan shall be permitted
upon prompt notification thereof to Fibreboard; and
(y) any claim under this clause (c)(3) shall be valid only
(i) with respect to the specific plan of action and
related budget of costs and expenses detailed (as they
may be modified permissibly pursuant to clause (c)(3)(x)
above) and (ii) to the extent the plan of action (as it
may be modified permissibly pursuant to clause (c)(3)(x)
above) is substantially completed by Buyer within the
earlier of (a) five years after the Facility Closure at
issue or (b) ten years after the Closing Date.
(D) INELIGIBLE CLAIMS. Notwithstanding the foregoing
provisions of this Section 10.4(i), any and all Adverse Consequences relating to
the following are ineligible to constitute any portion of a Qualifying Claim
(and, except for
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claims which may be made under Section 10.4(i)(a) above (if any), shall be the
sole responsibility of Buyer):
(1) Any testing for, repair, removal or remediation of
Environmental Conditions Affecting the Assets which is:
(a) beyond what is reasonably calculated to achieve Industry
Standards; or
(b) excessive in comparison to Industry Practice;
PROVIDED, FURTHER, that any claim for costs or expenses of
testing may comprise a Qualifying Claim only:
(x) for that portion of the testing, if any, which
identifies Environmental Conditions Affecting the Assets
requiring repair, removal or remediation consistent with
the foregoing provisions of this clause (d)(1); or
(y) when initial testing for a Hazardous Material at a
specific location establishes the presence at such
location of the Hazardous Material at a concentration
exceeding the threshold requiring remediation adopted by
applicable state or federal regulation (or if no such
applicable regulation exists, then as dictated by
Industry Standards and Industry Practice) and further
testing is reasonably undertaken for the purpose of
establishing that remediation is not required;
(2) Any plant closure or similar event (except as expressly set
forth in Section 10.4(i)(c)(3) above);
(3) The use, ownership or operation of the Assets from and after
the Closing, or the businesses in which the Assets are used
from and after the Closing;
(4) Controlling, or failure to control, storm or surface water
run-off (including, without limitation, pond discharges) at or
affecting any Asset, whether before or after the Closing; and
(5) Any testing, removal of, or other remediation with respect to,
the bark pile at the Standard facility in compliance with
applicable laws,
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rules and regulations (except for costs and expenses incurred
directly for the testing for, removal from or remediation of
Hazardous Materials on or within the bark pile to the extent
(i) such Hazardous Materials were placed on or within the bark
pile prior to Closing and (ii) such costs and expenses are
otherwise eligible to comprise a Qualifying Claim).
(E) FIBREBOARD'S RIGHTS.
(1) Fibreboard shall have the right to conduct an
audit of any Adverse Consequences which are either (i) the subject of Section
10.4(i)(a) above or (ii) comprise a portion of any claim submitted by Buyer as a
potential Qualifying Claim. Such audits shall be conducted in a reasonable
manner so as to avoid undue interference with Buyer's businesses; HOWEVER,
Buyer shall make available to Fibreboard, without cost to Fibreboard, such
personnel, books and records of Buyer and its Affiliates, as well as its and
their consultants (including outside attorneys and accountants), as shall be
necessary, in the reasonable estimation of Fibreboard, for any such audit.
(2) Fibreboard's obligation to indemnify Buyer with
respect to any Adverse Consequences under the provisions of Section 10.4(i)(b)
above is subject to Fibreboard's right to approve, in its reasonable discretion,
such Adverse Consequences; PROVIDED, HOWEVER, that such right of
Fibreboard's shall relate only to specific conditions or related sets of
conditions for which (i) Adverse Consequences may reasonably be expected to
aggregate in excess of One Hundred Thousand Dollars ($100,000.00) or (ii) the
costs and expenses of testing which Fibreboard may be required to bear under
Section 10.4(i)(b) above aggregate in excess of Ten Thousand Dollars
($10,000.00). Without limitation, Fibreboard's approval can be contingent upon
the satisfaction of reasonable conditions, including, without limitation and in
the instance of governmental actions, orders or other directives or settlements
of third party claims or judgments, the request that Buyer pursue available
avenues of appeal (with reasonable costs (including attorneys' fees and court
costs) incurred by Buyer with respect to such an appeal deemed to constitute a
Qualifying Claim).
(3) Buyer shall immediately notify Fibreboard
regarding any action, order, directive, demand, claim, request or other
communication received from any governmental agency or third party that is or
may be reasonably related to a potential Qualifying Claim. Pursuant to this
obligation, Buyer shall provide to Fibreboard a copy of any written
communication provided to Buyer. Buyer shall also notify Fibreboard prior to
reporting to or communicating with any governmental agency or third party
regarding the subject or possible subject of any potential Qualifying Claim, and
(without
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limiting Fibreboard's other rights) Fibreboard shall have the right to
participate in any such contact. Any notice required by this Section
10.4(i)(e)(3) shall be provided in accordance with the provisions of Section
11.6 below.
(ii) PROVISIONS FOR SELLERS' BENEFIT.
(A) Without limiting the provisions of Section 10.3 above
and except as otherwise expressly provided in Section 10.4(i) above, Buyer
agrees that it shall (x) assume full responsibility for Environmental Conditions
Affecting the Assets and (y) indemnify, defend (with counsel reasonably
acceptable to both Agent and Buyer) and hold each Seller and each Seller's
Related Parties harmless from and against any and all Adverse Consequences
arising from or in any way connected with any Environmental Conditions Affecting
the Assets, whether or not the facts which gave rise to such Adverse
Consequences occurred prior to or after the Closing.
(B) Without limitation, the foregoing indemnity specifically
includes (x) all foreseeable and unforeseeable consequential damages, the costs
of any required or necessary repair, removal or remediation, any violation of
laws, orders or demands of governmental authorities, any lawsuit brought or
threatened, settlement reached or governmental order received, any personal
injuries or property damage, and any migration of Hazardous Materials from any
of the Assets to adjacent properties or resources, in connection with
Environmental Conditions Affecting the Assets, and (y) the direct obligation of
Buyer to perform any remedial or other activities required, ordered, recommended
or requested by any agency, government official or third party, or otherwise
necessary to avoid injury or liability to any person, or to prevent the spread
of Hazardous Materials, however they came to be placed or located (hereinafter,
"Remedial Work"). Buyer shall perform all Remedial Work in its own name in
accordance with all applicable laws. Without limiting its obligations under any
other provision of this Agreement, following conveyance of the Acquired Assets
to Buyer, Buyer shall be solely and completely responsible for responding to and
complying with any notice, order, request or demand, or any third party claim or
demand relating to potential or actual Environmental Conditions Affecting the
Assets.
(C) Without limitation, (x) the responsibility conferred
under this Section 10.4(ii) includes responding to such orders on behalf of any
Seller or Snider and defending against any assertion of any Seller's or Snider's
financial responsibility or individual duty to perform under such orders, and
(y) Buyer shall assume, pursuant to this Section 10.4(ii), any Liabilities or
responsibilities which are assessed against any Seller or Snider in any action
described under this Section 10.4(ii).
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10.5 MATTERS INVOLVING THIRD PARTIES. If any third party shall notify
any of the Sellers, on the one hand, or Buyer (or Snider), on the other hand
(the notified party is hereinafter referred to as the "Indemnified Party") with
respect to any matter which may give rise to a claim for indemnification against
the other (such other party is hereinafter referred to as the "Indemnifying
Party") under this Section 10, then the Indemnified Party shall notify the
Indemnifying Party thereof promptly (with Buyer assuming responsibility for
causing Snider to comply with the provisions of this Section 10.4); PROVIDED,
HOWEVER, that no delay on the part of the Indemnified Party in notifying the
Indemnifying Party shall relieve the Indemnifying Party from any liability or
obligation hereunder unless (and then solely to the extent) the Indemnifying
Party is thereby damaged. In the event the Indemnifying Party notifies the
Indemnified Party within 15 days after the Indemnified Party has given notice of
the matter that the Indemnifying Party is assuming the defense thereof, (a) the
Indemnifying Party will defend the Indemnified Party against the matter with
counsel of the Indemnifying Party's choice reasonably satisfactory to the
Indemnified Party, (b) the Indemnified Party may retain separate co-counsel at
the Indemnified Party's sole cost and expense (except that the Indemnifying
Party will be responsible for the reasonable fees and expenses of the separate
co-counsel to the extent the Indemnified Party concludes reasonably that the
Indemnified Party has a conflict of interest with other parties represented by
the counsel selected by the Indemnifying Party, or such counsel otherwise has a
conflict in its representation of the Indemnified Party), (c) the Indemnified
Party will not consent to the entry of any judgment or enter into any settlement
with respect to the matter without the written consent of the Indemnifying Party
(not to be withheld unreasonably), and (d) the Indemnifying Party will not
consent to the entry of any judgment with respect to the matter, or enter into
any settlement which does not include a provision whereby the plaintiff or
claimant in the matter releases the Indemnified Party from all Liability with
respect thereto, without the written consent of the Indemnified Party (not to be
withheld unreasonably). In the event the Indemnifying Party does not notify the
Indemnified Party within 15 days after the Indemnified Party has given notice of
the matter that the Indemnifying Party is assuming the defense thereof, then the
Indemnified Party may defend against, or enter into any settlement with respect
to, the matter in any manner it reasonably may deem appropriate (with the
Indemnifying Party bearing responsibility for all Adverse Consequences as set
forth herein).
10.6 DETERMINATION OF LOSS. The Parties shall make appropriate
adjustments for tax benefits and insurance proceeds (reasonably certain of
receipt and utility in each case) and for the time value of money (using the
prime lending rate of Bank of America National Trust and Savings Association as
the discount rate) in determining the amount of loss for purposes of this
Section 10.
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10.7 DISPUTE RESOLUTION. Dispute Resolution shall constitute the sole
and exclusive method, means and procedure to resolve any controversy or claim
arising out of or relating to the respective indemnification rights and
obligations of the Parties contained in this Section 10 (a "Dispute"), and the
Parties hereby irrevocably waive any and all rights to the contrary and shall at
all times conduct themselves in strict, full, complete and timely accordance
with the requirements of Dispute Resolution. Any and all attempts to circumvent
the provisions of this Section 10.7 shall be absolutely null and void and of no
force or effect whatsoever.
SECTION 11
MISCELLANEOUS
11.1 NO THIRD PARTY BENEFICIARIES. Except as expressly provided
herein, this Purchase Agreement shall not confer any rights or remedies upon any
Person other than the Parties and their respective successors and permitted
assigns.
11.2 ENTIRE AGREEMENT. This Purchase Agreement (including the Exhibits
and Appendices referred to herein) constitutes the entire agreement between the
Parties and supersedes any prior understandings, agreements or representations
by or between the Parties, written or oral, that may have related in any way to
the subject matter hereof (including, without limitation, the Confidential
Memorandum dated January 1995 and prepared by Sellers and Dillon, Read & Co.,
Inc. with respect to the Wood Products Group); PROVIDED, HOWEVER, that the
terms and provisions of that certain confidentiality letter dated January 12,
1995 between Buyer and Fibreboard and executed in connection with Buyer's due
diligence review of the Wood Products Group, as well as the terms and provisions
of that certain Site Access, Confidentiality and Indemnification Agreement dated
as of June 19, 1995 between Buyer and Fibreboard, shall remain in full force and
effect and shall not be amended as a result of this Purchase Agreement.
11.3 SUCCESSION AND ASSIGNMENT. This Purchase Agreement shall be
binding upon and inure to the benefit of the Parties and their respective
successors and permitted assigns. No Party may assign either this Purchase
Agreement or any of its rights, interests or obligations hereunder without the
prior written approval of the other Parties; PROVIDED, HOWEVER, that Buyer
may (i) assign any or all of its rights and interests hereunder to one or more
of its Affiliates and (ii) designate one or more of its Affiliates to perform
its obligations hereunder (in any or all of which cases Buyer nonetheless shall
remain liable and responsible for the performance of all of its obligations
hereunder).
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11.4 COUNTERPARTS. This Purchase Agreement may be executed in one or
more counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
11.5 HEADINGS. The section headings contained in this Purchase
Agreement are inserted for convenience only and shall not affect in any way the
meaning or interpretation of this Purchase Agreement.
11.6 NOTICES. All notices, requests, demands, claims and other
communications hereunder shall be in writing. Any notice, request, demand,
claim or other communication hereunder shall be deemed duly given if (and then
two business days after) it is sent by registered or certified mail, return
receipt requested, postage prepaid, and addressed to the intended recipient as
set forth below:
IF TO FIBREBOARD/AGENT OR FB&M:
Fibreboard Corporation
California Plaza
2121 N. California Blvd., Suite 560
Walnut Creek, California 94596
Attention: Michael R. Douglas, Senior Vice
President, General Counsel and
Secretary
COPY TO:
Pillsbury Madison & Sutro
235 Montgomery Street
San Francisco, California 94104
Attention: Terry M. Kee
IF TO BUYER (OR SNIDER FOLLOWING THE CLOSING):
Sierra Pacific Industries
19794 Riverside Avenue
Anderson, California 96007
Attention: A. A. Emmerson, President
COPY TO:
Dun & Martinek
730 - 7th Street, Suite B
Eureka, California 95501
Attention: David H. Dun
Any Party may give any notice, request, demand, claim or other communication
hereunder using any other means (including personal delivery, expedited courier,
messenger service, telecopy, telex, ordinary mail or electronic mail), but no
such notice, request, demand, claim or other communication shall be
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deemed to have been duly given unless and until it actually is received by the
individual for whom it is intended. Any Party may change the address to which
notices, requests, demands, claims and other communications hereunder are to be
delivered by giving the other Parties notice in the manner herein set forth.
11.7 GOVERNING LAW. This Purchase Agreement shall be governed by and
construed in accordance with the laws of the State of California.
11.8 AMENDMENTS AND WAIVERS. No amendment of any provision of this
Purchase Agreement shall be valid unless the same shall be in writing and signed
by Buyer and Sellers. No waiver by any Party of any default, misrepresentation
or breach of warranty or covenant hereunder, whether intentional or not, shall
be deemed to extend to any prior or subsequent default, misrepresentation or
breach of warranty or covenant hereunder or affect in any way any rights arising
by virtue of any prior or subsequent such occurrence.
11.9 SEVERABILITY. Any term or provision of this Purchase Agreement
that is invalid or unenforceable in any situation in any jurisdiction shall not
affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in
any other situation or in any other jurisdiction. If the final judgment of a
court of competent jurisdiction declares that any term or provision hereof is
invalid or unenforceable, the Parties agree that the court making the
determination of invalidity or unenforceability shall have the power to reduce
the scope, duration or area of the term or provision, to delete specific words
or phrases, or to replace any invalid or unenforceable term or provision with a
term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and
this Purchase Agreement shall be enforceable as so modified after the expiration
of the time within which the judgment may be appealed.
11.10 EXPENSES. Each Party shall bear its own costs and expenses
(including legal fees and expenses) incurred in connection with the negotiation
of this Purchase Agreement and the transactions contemplated hereby; PROVIDED,
HOWEVER, that Liability for the reasonable costs and expenses associated with
the following for the transactions contemplated by this Purchase Agreement shall
be shared equally by Fibreboard and Buyer:
(i) Fees of the Escrow Holder and other title fees and closing
costs associated with the Real Property and the Closing (including the costs of
any preliminary title reports and any title insurance premiums); and
(ii) The filing fee associated with the Hart-Scott-Rodino Act (as
contemplated by Section 6.2 above), as well as the fees and costs, other than
attorneys' fees and costs,
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associated with any further filings or requests for information with respect to
the Hart-Scott-Rodino Act.
11.11 CONSTRUCTION. The language used in this Purchase Agreement will
be deemed to be the language chosen by the Parties to express their mutual
intent, and no rule of strict construction shall be applied against any Party.
Any reference to any federal, state, local or foreign statute or law shall be
deemed also to refer to all rules and regulations promulgated thereunder, unless
the context requires otherwise. Exclusively for purposes of Sections 10.2(i)
and 10.4(i)(a) above as they relate to the representations and warranties of
Sellers under Section 4 above, the threshold for a "material adverse effect" on
the Value of the Assets shall be deemed to be Five Hundred Thousand Dollars
($500,000.00).
11.12 INCORPORATION OF EXHIBITS AND APPENDICES. The Exhibits and
Appendices identified in this Purchase Agreement are incorporated herein by
reference and made a part hereof.
11.13 SUBMISSION TO JURISDICTION. Except as otherwise provided by
Section 2.5 above (with respect to Arbitration) and Section 10.7 above (with
respect to Dispute Resolution), each of the Parties submits to the jurisdiction
of any state or federal court sitting in San Francisco County, California, in
any action or proceeding arising out of or relating to this Purchase Agreement,
agrees that all claims in respect of the action or proceeding may be heard and
determined in any such court, and agrees not to bring any action or proceeding
arising out of or relating to this Purchase Agreement in any other court. Each
of the Parties waives any defense of inconvenient forum to the maintenance of
any action or proceeding so brought and waives any bond, surety or other
security that might be required of any other Party with respect thereto. Each
Party agrees that a final judgment in any action or proceeding so brought shall
be conclusive and may be enforced by suit on the judgment or in any other manner
provided by law.
11.14 TAXES AND RELATED MATTERS.
(i) PROPERTY TAXES. Liability for property taxes, assessments,
utilities and similar charges and expenses with respect to the Assets shall be
prorated between Sellers and Buyer by apportioning such items on a PER DIEM
basis, with Sellers liable for the period prior to the Closing Date and Buyer
responsible for the period beginning on and ending after the Closing Date;
PROVIDED, HOWEVER, that except as otherwise provided in Section 11.14(ii)
below, any Other Taxes (including, without limitation, additional or
supplemental amounts of Other Taxes), whether retroactive or not, imposed as a
result of the transactions contemplated by this Purchase Agreement or due to a
change in use or ownership of any of the Assets following the Closing, shall be
paid by Buyer. Agent and Buyer shall use their best efforts prior to the
Closing to prepare a schedule of
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prorations covering as many items to be prorated as practicable so that such
prorations can be made at the Closing (the resulting amount owed by Buyer to
Sellers is herein referred to as the "Estimated Proration Amount"). Such
prorations shall be adjusted, if necessary, and completed after the Closing as
soon as final information becomes available. Agent and Buyer agree to cooperate
and to use their best efforts to complete such prorations no later than thirty
(30) days after the Closing Date.
(ii) SALES AND TRANSFER TAXES. Liability for any sales, transfer
or similar taxes imposed in respect of the transfer of the Acquired Assets shall
be shared equally by Buyer and Fibreboard. However, Buyer shall, in a timely
manner, provide Agent with exemption certificates, resale certificates or any
other statements or documents necessary to relieve Sellers of Liability for any
state or local sales, use, gross receipts or similar taxes that may arise in
connection with the transactions contemplated hereby and all such certificates,
statements or documents shall be correct and complete in all respects and shall
include all appropriate registration or permit numbers of Buyer for all
applicable state or local taxing jurisdictions.
11.15 EMPLOYEE BENEFITS MATTERS. Buyer shall ensure that (i) employees
associated with the Wood Products Group (collectively, "Employees") hired by
Buyer or retained by Snider shall be entitled to participate fully in the
employee benefit plans of Buyer and (ii) such plans shall treat employment with
(or within) the Wood Products Group (or the Controlled Group) prior to the
Closing Date the same as employment with any of Buyer or its ERISA affiliated
group from and after the Closing Date for purposes of eligibility, vesting and
benefit accrual.
11.16 EMPLOYMENT. Fibreboard shall (i) terminate the employment of all
Employees as of the Closing (the "Affected Employees") and (ii) undertake to
provide to all affected Employees and other necessary persons any notice that
may be required under the WARN Act. Buyer (x) may offer employment, or cause
Snider to offer continued employment, to certain of the Employees who primarily
perform services relating to the Assets as of the Closing Date and (y) shall
provide notice to Fibreboard on or prior to the Closing Date of the identity of
any Affected Employees who are expected to be offered employment or continued
employment; HOWEVER, nothing in this Purchase Agreement shall affect Buyer's
or Snider's right to terminate the employment of any Employee on or after his or
her first date of employment with Buyer (or continued employment after the
Closing in the case of Snider), with or without cause, provided that Buyer shall
(without limiting the provisions of Section 10.3) indemnify and hold each Seller
harmless from any Liability arising out of such action.
11.17 BULK TRANSFER LAWS. Buyer acknowledges and agrees that Sellers
will not comply with the provisions of any bulk
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transfer laws of any jurisdiction in connection with the transactions
contemplated by this Purchase Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Purchase
Agreement as of the Effective Date.
BUYER:
SIERRA PACIFIC INDUSTRIES,
a California corporation
By: /s/ A. A. Emmerson
------------------------------
Title:
---------------------------
SELLERS:
FIBREBOARD:
FIBREBOARD CORPORATION,
a Delaware corporation
By: /s/ James P. Donohue
-------------------------------
Title: Senior Vice President
----------------------------
FB&M:
FIBREBOARD BOX & MILLWORK CORPORATION,
a Delaware corporation
By: /s/ James P. Donohue
-------------------------------
Title: Vice President
----------------------------
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APPENDICES AND EXHIBITS
APPENDICES
1.......................Defined Terms
2.......................Certain Purchase Price Adjustments
3.......................Disclosure Schedule
4.......................Assets
5.......................Excluded Assets and Certain Assumed
Liabilities
6.......................Calculation of Base Amount
EXHIBITS
A.......................Allocation Schedule
B.......................Instruments of Assignment and Conveyance
C.......................Instruments of Assumption
D.......................Financial Statements
E.......................Form of Access Agreement
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APPENDIX 1
DEFINED TERMS
"ACCRUED LIABILITIES SCHEDULE" means the schedule of combined accrued
liabilities at April 1, 1995 which is attached to the Interim Balance Sheet,
and, for purposes of calculations as of the Closing Date, as such schedule shall
be updated as of the Closing (which update shall include, without limitation,
the amount of any combined "Excess Cost on a Commitment Basis" as defined in the
Road Right-Of-Way Construction and Use Agreement (presently unexecuted) between
Fibreboard and the United States Forest Service which is included as an "Asset"
on APPENDIX 4 attached to the Purchase Agreement).
"ACQUIRED ASSETS" means all right, title and interest that each Seller
possesses and has the right to transfer in and to the following:
(a) the Shares;
(b) the Real Property (except for Real Property owned by Snider which is
identified as such on APPENDIX 4 to the Purchase Agreement) and
any improvements, fixtures and fittings thereon, and easements,
rights-of-way and other appurtenances thereto;
(c) the tangible personal property identified on APPENDIX 4 to the
Purchase Agreement under the heading "Tangible Personal Property"
(except for such items as appear under the subheading "Snider
Tangible Personal Property");
(d) the trademarks, service marks, trade dress and trade names
identified on APPENDIX 4 to the Purchase Agreement under the
heading "Intangible Property" (except for such items as appear under
the subheading "Snider Intangible Property") and goodwill associated
therewith, licenses and sublicenses granted and obtained with
respect thereto and rights thereunder, remedies against
infringements thereof and rights to protection of interests therein
under the laws of all applicable jurisdictions;
(e) the cutting rights identified on APPENDIX 4 to the Purchase
Agreement under the heading "Agreements--Cutting Contracts" (except
for such items as appear under the subheading "Snider Cutting
Rights");
(f) the contracts, agreements, licenses, leases, subleases and other
arrangements listed on APPENDIX 4 to the Purchase Agreement under
the heading "Agreements"
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(except for such items as appear under the subheading "Snider
Agreements") and any rights thereunder;
(g) the accounts receivable used in the calculation of the Closing
Amount (except for the accounts receivable of Snider);
(h) any causes of action, choses in action and rights of recovery with
respect to items identified in clauses (a) to (g) above;
(i) any assignable franchises, approvals, permits, licenses, orders,
registrations, certificates, variances and similar rights obtained
from governments and governmental agencies with respect to the
ownership, use or operation of any of the items identified in
clauses (a) to (g) above; and
(j) any books, records, ledgers, files, documents, correspondence,
lists, plats, architectural plans, drawings and specifications,
financial, marketing and business data, pricing and cost
information, business and marketing plans and customer and supplier
lists and information, creative materials, advertising and
promotional materials, studies, reports and other printed or written
materials with respect to the ownership, use or operation of any of
the items identified in clauses (a) to (g) above.
Notwithstanding the foregoing, the Acquired Assets shall not include, without
limitation, the following: (1) the corporate charter, qualifications to do
business as a foreign corporation, arrangements with registered agents relating
to foreign qualifications, taxpayer and other identification numbers, seals,
minute books, stock transfer books, blank stock certificates, and other
documents relating to the organization, maintenance and existence of any Seller
as a corporation; (2) any insurance policies with respect to the Acquired
Assets; (3) any of the rights of any Seller under this Agreement or any side
agreement between the Parties entered into on or after the Effective Date; (4)
any right to refunds of taxes, assessments or charges paid by, on behalf of or
with respect to the Assets by any Seller or Snider which is in excess of the
Sellers' obligations pursuant to Section 11.14 of the Agreement; and (5) any
assets which are identified under the heading "Excluded Assets" on APPENDIX 5
to the Purchase Agreement.
"ADJUSTMENT AMOUNT" has the meaning set forth in Section 2.5 of the
Purchase Agreement.
"ADVERSE CONSEQUENCES" means all allegations, charges, complaints,
actions, suits, proceedings, hearings, investigations, claims, demands,
judgments, orders, decrees, stipulations, injunctions, damages, dues, penalties,
fines,
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costs, amounts paid in settlement, Liabilities, obligations, taxes, interest,
liens, losses, expenses and fees, including all attorneys' fees and court costs,
costs of expert witnesses and other expenses of litigation.
"AFFECTED EMPLOYEES" has the meaning set forth in Section 11.16 of the
Purchase Agreement.
"AFFILIATE" has the meaning set forth in Rule 12b-2 of the regulations
promulgated under the Securities Exchange Act of 1934, as amended.
"AGENT" has the meaning set forth in Section 2.3 of the Purchase
Agreement.
"AGREED-UPON BUYER'S RECOURSE" means any recourse which Buyer may have
against Fibreboard as expressly provided in the indemnification provisions
benefiting Buyer set forth in Section 10 of the Purchase Agreement.
"ARBITRATION" means, with respect to the Closing Statement, the
submission of issues in dispute to a firm of certified public accountants to be
selected by agreement between the independent public accountants of Fibreboard
and the independent public accountants of Buyer (the "Arbitrator"). If issues
in dispute are submitted to the Arbitrator for resolution, (a) each of Buyer and
Fibreboard will furnish to the Arbitrator such workpapers and other documents
and information relating to the disputed issues as the Arbitrator may request
and are available to that Party or its Affiliates (or its independent public
accountants), and will be afforded the opportunity to present to the Arbitrator
any material relating to the determination and to discuss the determination with
the Arbitrator, (b) the determination by the Arbitrator, as set forth in a
notice delivered to each of Buyer and Fibreboard by such Arbitrator, will be
binding and conclusive on the Parties (except for manifest error), and (c) Buyer
and Fibreboard will each bear 50% of the fees of the Arbitrator for such
determination.
"ASSETS" means the Acquired Assets and the Snider Assets.
"ASSUMED LIABILITIES" means the following Liabilities and obligations:
(a) any and all Liabilities and obligations relating to or arising in
connection with Environmental Conditions Affecting the Assets;
(b) any and all Liabilities and obligations of any Seller or Snider (or
any Affiliate of any Seller or Snider) under the licenses,
sublicenses, leases, subleases, contracts, agreements and other
arrangements referred to in the definitions of Acquired Assets or
Snider
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Assets (and related portions of APPENDIX 4 to the Purchase
Agreement);
(c) any and all Liabilities and obligations of any Seller or Snider (or
any Affiliate of any Seller or Snider) under the franchises,
approvals, permits, licenses, orders, registrations, certificates,
variances and similar rights referred to in the definitions of
Acquired Assets or Snider Assets (and related portions of APPENDIX
4 to the Purchase Agreement);
(d) the accrued liabilities (and related obligations) reflected on the
Accrued Liabilities Schedule and used in the calculation of the
Closing Amount;
(e) any and all Liabilities and obligations relating to or arising in
connection with (i) the use, ownership or operation of the Assets
from and after the Closing and (ii) the operation, from and after
the Closing, of the businesses in which the Assets are used; and
(f) the Liabilities and obligations associated with the Wood Products
Group, Snider and/or the Assets and identified under the heading
"Certain Assumed Liabilities" on APPENDIX 5 to the Purchase
Agreement.
Notwithstanding the foregoing, the Assumed Liabilities shall not include the
following: (1) such Liabilities and obligations as are properly the subject of
the Agreed-Upon Buyer's Recourse (if any); (2) all Liabilities and obligations
of any Seller or Snider (or any Affiliate of any Seller or Snider) under any
employee benefit plan maintained by any Seller or Snider for Employees for
periods prior to the Closing; (3) all Liabilities and obligations for workers'
compensation claims and coverage associated with Employees for periods prior to
the Closing; (4) any obligation for indemnification of any purchaser of assets
from the Wood Products Group in a transaction prior to the Effective Date for
the presence on, about or around such assets of Hazardous Materials; (5) any
intercompany payables among the Sellers and/or Snider; and (6) other Liabilities
and obligations relating to pre-Closing operation of the Wood Products Group
which are not identified or referenced above as "Assumed Liabilities."
"BASE AMOUNT" means the amount of Net Working Capital as of April 1,
1995, the calculation of which is set forth as APPENDIX 6 to the Purchase
Agreement.
"BUYER" has the meaning set forth in the preface of the Purchase
Agreement.
"CASH" means cash and cash equivalents (including marketable securities
and short term investments) calculated in
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accordance with GAAP applied on a basis consistent with the preparation of
Fibreboard's audited financial statements.
"CLOSING" has the meaning set forth in Section 3.1 of the Purchase
Agreement.
"CLOSING AMOUNT" has the meaning set forth in Section 2.5 of the
Purchase Agreement.
"CLOSING DATE" has the meaning set forth in Section 3.1 of the Purchase
Agreement.
"CLOSING STATEMENT" has the meaning set forth in Section 2.5 of the
Purchase Agreement.
"CODE" means the Internal Revenue Code of 1986, as amended, or its
successor and any regulations promulgated thereunder.
"CONTROLLED GROUP" means the Sellers and all Persons (whether or not
incorporated) under common control or treated as a single employer with the
Sellers pursuant to Section 414(b) or Section 414(c) of the Code.
"CONVERSION ASSETS" means all Assets other than the Real Property.
"DEEDS" has the meaning set forth in Section 3.2(i) of the Purchase
Agreement.
"DISCLOSURE SCHEDULE" has the meaning set forth in Section 4 of the
Purchase Agreement (and is APPENDIX 3 attached to the Purchase Agreement).
"DISPUTE" has the meaning set forth in Section 10.7 of the Purchase
Agreement.
"DISPUTE RESOLUTION" means the following:
(1) Any Dispute shall be settled within thirty (30) days of receipt by
all Parties of a notice of the Dispute (such notice to be delivered
pursuant to the provisions of Section 11.6 of the Purchase
Agreement) by negotiations between representatives of the Parties
with authority to settle such Dispute.
(2) In the absence of such a negotiated settlement, any Dispute shall be
resolved by arbitration before a single arbitrator (except as
provided below) in San Francisco, California, in accordance with the
Rules of the American Arbitration Association then existing, and
judgment on the arbitration award may be entered in any state or
federal court sitting in San Francisco County, California in
accordance with the provisions of Section 11.13 of the Purchase
Agreement.
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(3) The arbitrator shall be a person experienced in the subject matter
of the circumstances to be arbitrated and shall be selected by
mutual agreement of the Parties. If the Parties are unable to agree
on the arbitrator within a period of thirty (30) days after
arbitration is demanded by any Party, then each of Buyer and
Fibreboard shall select a qualified arbitrator and the two
arbitrators so selected shall select a third and the three so chosen
shall constitute the board of arbitrators.
(4) The arbitrator(s) shall render a decision as soon as possible. The
Parties agree to abide by and perform any directions and awards made
by the arbitrator(s) whose decision shall be final and binding for
all purposes. The arbitrator(s) may direct any Party to pay any sum
of money or to do or subject itself to any act or execute any
instrument for the purpose of carrying the award of the
arbitrator(s) into effect.
(5) The costs of the arbitrator(s) shall be borne by the Party against
which the award is granted unless the award otherwise directs. Each
Party shall be entitled to pre-hearing discovery as provided in
California Civil Code of Procedure Section 1283.05.
"EFFECTIVE DATE" has the meaning set forth in the preface of the
Purchase Agreement.
"EMPLOYEE" has the meaning set forth in Section 11.15 of the Purchase
Agreement.
"ENDANGERED SPECIES" means a species of animal which is listed, as of
the Effective Date, as endangered pursuant to either (i) the California
Endangered Species Act (California Fish & Game Code Section 2050, ET SEQ.) or
the Federal Endangered Species Act (16 U.S.C. Section 1531, ET SEQ.).
"ENVIRONMENTAL CONDITIONS AFFECTING THE ASSETS" means the following
conditions affecting the Assets (or any portion thereof):
(a) the condition of any and all Real Property soils and soils
surrounding or adjacent to any portion of the Real Property, but
only insofar as such condition is violative of applicable federal,
state or local laws, rules or regulations and remediation is
mandated thereunder;
(b) the condition of any and all surface waters and groundwater on,
about, under, surrounding or adjacent to any portion of the Real
Property, but only insofar as such condition is violative of
applicable federal,
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state or local laws, rules or regulations and remediation is
mandated thereunder;
(c) environmental conditions in the areas surrounding any portion of the
Real Property that could affect the quality of any portion of the
Real Property and its potential uses, but only insofar as any such
condition is violative of applicable federal, state or local laws,
rules or regulations and remediation is mandated thereunder;
(d) the existence of any storage tank, but only insofar as such tank
must be removed or repaired under applicable federal, state or local
laws, rules or regulations;
(e) Hazardous Materials in any state on, about, under, surrounding,
adjacent to or emanating or originating from any of the Assets
(including, without limitation, any portion of the Real Property),
from any source whatsoever and however they came to be placed or
located; and
(f) the pre-Closing failure to obtain or properly maintain, or abide by,
permits, approvals or requirements for any activity carried out on
or about the Real Property that could affect the condition of the
soils, groundwater, surface water or air on, about, under,
surrounding or adjacent to the Real Property.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, or its successor and any regulations promulgated thereunder.
"ESCROW HOLDER" means Yosemite Title Company.
"ESTIMATED PRORATION AMOUNT" has the meaning set forth in Section
11.14(i) of the Purchase Agreement; PROVIDED, HOWEVER, that such amount
shall be paid by delivery of cash payable by wire transfer or delivery of other
funds which shall be immediately available to Agent as of the Closing.
"FACILITY" means any of the following:
(1) The entire sawmill and plywood mill facility and related operations
of the Wood Products Group at Standard, California;
(2) The entire sawmill facility and related operations of the Wood
Products Group at Chinese Camp, California;
(3) The entire bark processing plant and related operations of the Wood
Products Group at Keystone, California; and
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(4) The entire lumber remanufacturing facility and related operations of
the Wood Products Group at Red Bluff, California.
"FACILITY CLOSURE" has the meaning set forth in Section 10.4(i)(c)(3) of
the Purchase Agreement.
"FB&M" has the meaning set forth in the preface of the Purchase
Agreement.
"FIBREBOARD" has the meaning set forth in the preface of the Purchase
Agreement.
"FINANCIAL STATEMENTS" has the meaning set forth in Section 4.4 of the
Purchase Agreement.
"GAAP" means United States generally accepted accounting principles as
in effect from time to time.
"HART-SCOTT-RODINO ACT" means the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended.
"HAZARDOUS MATERIALS" means substances which are explosive, corrosive,
radioactive or toxic and any substances defined as hazardous substances,
hazardous materials, toxic substances, toxic air contaminants or hazardous
wastes under federal, state or local laws or regulations, including without
limitation, the Comprehensive Environmental Response, Compensation and Liability
Act of 1980 (42 U.S.C. Section 9601 ET SEQ.), the Superfund Amendments and
Reauthorization Act of 1986 (Pub. L. 99-499, 100 Stat. 1617 (October 17,1986)),
the Hazardous Materials Transportation Act (49 U.S.C. Section 1801 ET SEQ.), the
Hazardous Waste Control Law (California Health & Safety Code Section 25100 ET
SEQ.), the Carpenter-Presley-Tanner Hazardous Substance Account Act
(California Health & Safety Code Section 25300, ET SEQ.), the Hazardous
Materials
(ii) Release Response Plans and Inventory Law (California Health & Safety Code
25500, ET SEQ.), the Air Toxics "Hot Spots" Information and Assessment Act
of 1987 (California Health & Safety Code Section 44300, ET SEQ.) and all
amendments to these laws and regulations adopted or publications promulgated
pursuant to these laws. Hazardous Materials shall also include, without
limitation, those asbestos-containing materials defined and described in
Environmental Protection Agency Report No. 560/5-85-024 (June 1985), or any
related or successor report, or other applicable government regulations defining
or describing such materials.
"INCOME TAX" means any federal, state, local or foreign income tax or
franchise tax measured by income, including any interest, penalty or addition
thereto, whether disputed or not.
"INDEMNIFIED PARTY" has the meaning set forth in Section 10.5 of the
Purchase Agreement.
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"INDEMNIFYING PARTY" has the meaning set forth in Section 10.5 of the
Purchase Agreement.
"INDUSTRY PRACTICE" means those methods and technologies of effecting
testing, repair, removal or remediation which are generally accepted in the
industry as cost-effective methods and technologies (consistent with Industry
Standards) as of the Closing Date.
"INDUSTRY STANDARDS" means those standards of testing, repair, removal
or remediation, consistent with industry practice as of the Closing Date, which
are:
(a) applicable to Sellers' and Snider's historical uses of the Real
Property; and
(b) intended to meet and not materially exceed minimum requirements
necessary (i) for compliance with applicable federal, state or local
laws, rules or regulations in existence as of the Closing Date or
(ii) to obtain any required governmental approvals consistent with
applicable federal, state or local laws, rules or regulations in
existence as of the Closing Date.
"INTERIM BALANCE SHEET" means the combined balance sheet at April 1,
1995 which forms a portion of EXHIBIT D to the Purchase Agreement.
"KNOWLEDGE" means actual knowledge without independent investigation.
"LENDER" means Bank of America National Trust and Savings Association,
as agent.
"LIABILITY" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated and whether due or to become due)
including, without limitation, any liability for Taxes.
"MARKET VALUE DIFFERENTIAL" has the meaning set forth in Section 2.5(i)
of the Purchase Agreement.
"NET WORKING CAPITAL" means, with respect to the businesses of the
Sellers and Snider conducted with the Assets (as such businesses are reflected
on the Interim Balance Sheet), the sum of (1) accounts receivable (excluding
notes receivable) plus prepaid expenses plus inventories (at book value) less
(2) accrued liabilities reflected on the Accrued Liabilities Schedule (excluding
(i) liabilities of the type reflected in the categories labeled "employee" on
the Accrued Liabilities Schedule, and (ii) shut-down reserves relating to the
Turlock and Fresno facilities as set forth on the Accrued Liabilities
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Schedule and (iii) accruals and other reserves for property taxes). The
elements of Net Working Capital shall be determined in accordance with GAAP
applied consistently with the principles used in preparing the Financial
Statements (including the Interim Balance Sheet). A calculation of Net Working
Capital as of April 1, 1995 (which is the Base Amount as defined above) is set
forth as APPENDIX 6 to the Purchase Agreement.
"OFFICERS" means the following individuals in their respective stated
capacities:
- Greg G. Byrne, Vice President of Finance and Planning for the Wood
Products Group;
- James D. Costello, Vice President of Fibreboard (Wood Products
Operations) and President of the Wood Products Group;
- James P. Donahue, Senior Vice President, Finance and Administration
and Chief Financial Officer of Fibreboard;
- Michael R. Douglas, Senior Vice President, General Counsel and
Secretary of Fibreboard;
- Richard H. Pland, Vice President of Timber Operations for the Wood
Products Group;
- John D. Roach, Chairman, President and Chief Executive Officer of
Fibreboard;
- Robert C. Shepherd, Vice President of Sales and Marketing for the
Wood Products Group; and
- Garold E. Swan, Vice President and Controller of Fibreboard;
PROVIDED, HOWEVER, that solely for purposes of Sections 4.5 and 5.6(i) of
the Purchase Agreement, Jennifer McCarter, Environmental Compliance Manager of
the Wood Products Group, shall also be deemed an "Officer."
"ORDINARY COURSE OF BUSINESS" means the ordinary course of business
consistent with past custom and practice (including with respect to quantity and
frequency).
"OTHER TAX" means any tax of any kind, levy or other like assessment,
custom, duty, impost, charge or fee (including, without limitation, sales, use,
gross receipts, ad valorem, transfer, transfer gains, value added, real or
personal property, stamp, lease, license, payroll, transaction, utility,
severance, production, environmental or other governmental taxes) other than
Income Tax, imposed or payable to the United States, or any state, county, local
or foreign government or
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subdivision or agency thereof, and in each instance such term shall include any
interest, penalties or additions to tax attributable to any such Other Tax.
"PARTIES" has the meaning set forth in the preface of the Purchase
Agreement.
"PERSON" means an individual, a partnership, a limited liability
company, a corporation, a joint stock company, a trust, a joint venture, an
unincorporated organization or a governmental entity (or any department, agency
or political subdivision thereof).
"PURCHASE AGREEMENT" means the Asset Purchase and Sale Agreement entered
into as of the Effective Date between Buyer and Sellers to which this APPENDIX
1 of defined terms is attached.
"PURCHASE CONSIDERATIONS" means all factors and conditions relevant to
the use, ownership or possession of the Assets, or any portion thereof,
including, without limitation, the following:
(a) Environmental Conditions Affecting the Assets;
(b) the present and historical operations conducted by Sellers and
Snider pertaining to the Assets which have involved the
transportation, use and storage of Hazardous Materials (including
fuels, formaldehyde, pentachlorophenol and polychlorinated
biphenyls), and various environmental audits and other information
concerning the Environmental Conditions Affecting the Assets (a
description of which audits and information is set forth on EXHIBIT
2 to the Disclosure Schedule);
(c) the physical condition of the Assets, all utilities which are
available to, or absent from, the Assets, all physical and
functional aspects of the Assets and compliance with all covenants,
conditions and restrictions binding upon the use of the Assets;
(d) the stocking, volume, quality and species mix of timber on the
Timberland, access to the Timberland and the rate and type of
harvesting from the Timberland;
(e) all factors affecting potential income which may be derived from,
and other factors affecting, the operation of the Assets and the
occupation or management of the Assets;
(f) the suitability of the Assets for any and all uses which Buyer may
conduct with respect thereto, and the habitability, merchantability,
marketability,
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profitability or fitness for any particular use of any Asset;
(g) all matters relating to title to the Assets; and
(h) all operative and proposed local, municipal, regional, state or
federal governmental laws, regulations and legal requirements to
which any of the Assets has been, is or may become subject, as well
as the compliance of any Asset (including, without limitation, its
use or operation) therewith (and including, without limitation,
laws, regulations and legal requirements relating to taxes,
assessments, leasing, occupancy, zoning, land use, subdivision,
planning, building, fire, safety, health or environmental matters).
"PURCHASE PRICE" has the meaning set forth in Section 2.3 of the
Purchase Agreement.
"QUALIFYING CLAIMS" has the meaning set forth in Section 10.4(i) of the
Purchase Agreement.
"REAL PROPERTY" means those Assets constituting real property which are
more specifically identified under the heading "Real Property" in APPENDIX 4
to the Purchase Agreement.
"RELATED PARTIES" means, with respect to any Party, such Party's
officers, directors, shareholders, employees, agents, affiliates and divisions,
and their respective heirs, successors, representatives and assigns.
"REMEDIAL WORK" has the meaning set forth in Section 10.4(ii) of the
Purchase Agreement.
"REVOLVING FACILITY" means the revolving credit facility made available
to Fibreboard by Lender in the amount of up to One Hundred Seventy-Five Million
Dollars ($175,000,000.00).
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITY INTEREST" means any mortgage, pledge, security interest,
encumbrance, charge or other lien, OTHER THAN the following:
(a) mechanic's, materialmen's and similar liens;
(b) liens for taxes not yet due and payable or for taxes that the
taxpayer is contesting in good faith through appropriate
proceedings;
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(c) liens arising under worker's compensation, unemployment
insurance, social security, retirement and similar
legislation;
(d) liens arising in connection with sales of foreign receivables;
(e) liens on goods in transit incurred pursuant to documentary
letters of credit;
(f) purchase money liens and liens securing rental payments under
capital lease arrangements; and
(g) other liens arising in the Ordinary Course of Business and not
incurred in connection with the borrowing of money.
"SELLERS" has the meaning set forth in the preface of the Purchase
Agreement.
"SHARES" has the meaning set forth in Section 3.3(i) of the Purchase
Agreement.
"SNIDER" has the meaning set forth in Recital A to the Purchase
Agreement.
"SNIDER ASSETS" means all right, title and interest that Snider has in
and to the following:
(a) the Real Property owned by Snider which is identified as such on
APPENDIX 4 to the Purchase Agreement and any improvements,
fixtures and fittings thereon, and easements, rights-of-way and
other appurtenances thereto;
(b) the tangible personal property identified on APPENDIX 4 to the
Purchase Agreement under the heading "Snider Tangible Personal
Property;"
(c) the trademarks, service marks, trade dress and trade names
identified on APPENDIX 4 to the Purchase Agreement under the
heading "Snider Intangible Property" and goodwill associated
therewith, licenses and sublicenses granted and obtained with
respect thereto and rights thereunder, remedies against
infringements thereof and rights to protection of interests therein
under the laws of all applicable jurisdictions;
(d) the cutting rights identified on APPENDIX 4 to the Purchase
Agreement under the heading "Snider Cutting Rights;"
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(e) the contracts, agreements, licenses, leases, subleases and other
arrangements listed on APPENDIX 4 to the Purchase Agreement under
the heading "Snider Agreements" and any rights thereunder;
(f) the accounts receivable of Snider used in the calculation of the
Closing Amount;
(g) any causes of action, choses in action and rights of recovery with
respect to items identified in clauses (a) to (f) above;
(h) any franchises, approvals, permits, licenses, orders, registrations,
certificates, variances and similar rights obtained from governments
and governmental agencies with respect to the ownership, use or
operation of any of the items identified in clauses (a) to (f)
above; and
(i) any books, records, ledgers, files, documents, correspondence,
lists, plats, architectural plans, drawings and specifications,
financial, marketing and business data, pricing and cost
information, business and marketing plans and customer and supplier
lists and information, creative materials, advertising and
promotional materials, studies, reports and other printed or written
materials with respect to the ownership, use or operation of any of
the items identified in clauses (a) to (f) above.
Notwithstanding the foregoing, the Snider Assets shall not include, without
limitation, the following: (1) any insurance policies with respect to the Snider
Assets; (2) any right to refunds of taxes, assessments or charges paid by, on
behalf of or with respect to the Snider Assets by any Seller or Snider which is
in excess of the Sellers' obligations pursuant to Section 11.14 of the
Agreement; and (3) any assets which are identified under the heading "Excluded
Assets" on APPENDIX 5 to the Purchase Agreement.
"SUBSEQUENT CAPITAL EXPENDITURES DIFFERENTIAL" has the meaning set forth
in Section 2.5(i) of the Purchase Agreement.
"TAX" means any Income Tax or any Other Tax.
"TIMBER HARVEST DIFFERENTIAL" has the meaning set forth in Section
2.5(i) of the Purchase Agreement.
"TIMBERLAND" means the private timberland owned by Fibreboard and
comprising a portion of the Real Property. The Timberland is located in the
Mariposa, Tuolumne, Calaveras and El Dorado Counties of California.
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"VALUE OF THE ASSETS" means the value, to a commercially reasonable
purchaser, of the Assets, taken as a whole, as modified by the Assumed
Liabilities, taken as a whole.
"WARN ACT" means the Worker Adjustment and Retraining Notification Act.
"WOOD PRODUCTS GROUP" has the meaning set forth in Recital A to the
Purchase Agreement.
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EXHIBIT 10.2
AMENDMENT NO. 1 TO PURCHASE AGREEMENT
This Amendment No. 1 relates to that certain Asset Purchase and Sale
Agreement (the "Purchase Agreement") dated as of September 6, 1995 by and among
Sierra Pacific Industries, a California corporation, Fibreboard Corporation, a
Delaware corporation, and Fibreboard Box & Millwork Corporation, a Delaware
corporation. This Amendment No. 1 effects the following changes to the Purchase
Agreement (and APPENDIX 1 thereto in the instance of Insert 3):
INSERT 1 (added to the end of Section 10.1(ii)(A) - also making the word
Section plural)
and 10.4(ii)(D)
INSERT 2 (added to the end of Section 10.4(ii))
(D) Notwithstanding the foregoing or any other provisions of
this Purchase Agreement, Buyer's obligations under this Section 10.4(ii) shall
not be deemed to apply to, and the definition of Assumed Liabilities shall not
be deemed to include, the following (collectively, "Excluded Claims"):
(w) claims for personal injuries to the extent that such injuries occurred
as the result of the pre-Closing acts or omissions of any Seller,
Snider or any of their predecessor entities with respect to the Wood
Products Group;
(x) claims for personal injuries arising out of pre-Closing exposure to
Hazardous Materials associated with the Assets;
(y) claims relating to the disposal, off-site of the Real Property and
prior to the Closing, of Hazardous Materials (it being understood that
"disposal" shall not include migration, leaching or similar activity);
and
(z) any claims, including product liability claims, relating to any sale
or other transfer of products by any Seller, Snider or any of their
predecessor entities with respect to the Wood Products Group prior to
the Closing.
Moreover, Fibreboard agrees to indemnify Buyer from and against any Adverse
Consequences Buyer reasonably may suffer resulting from or caused by any
Excluded Claims.
<PAGE>
INSERT 3 (added as a new definition)
"EXCLUDED CLAIMS" has the meaning set forth in Section 10.4(ii)(D) of the
Purchase Agreement.
MISCELLANEOUS. This Amendment No. 1 is intended to amend and supplement the
Purchase Agreement and to be incorporated therein. The parties acknowledge and
agree that this Amendment No. 1 may be executed in counterparts.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1
to the Purchase Agreement as of September 6, 1995.
BUYER:
SIERRA PACIFIC INDUSTRIES,
a California corporation
By: /s/ M. D. Emmerson
--------------------------
Title: Vice President
-----------------------
SELLERS:
FIBREBOARD:
FIBREBOARD CORPORATION,
a Delaware corporation
By: /s/ James P. Donohue
--------------------------
Title: Senior Vice President
-----------------------
FB&M:
FIBREBOARD BOX & MILLWORK CORPORATION,
a Delaware corporation
By: /s/ James P. Donohue
--------------------------
Title: Vice President
-----------------------
<PAGE>
EXHIBIT 99.1
[LOGO]
NEW RELEASE FIBREBOARD
- --------------------------------------------------------------------------------
FOR IMMEDIATE RELEASE
- ---------------------
At the Company: At Financial Relations Board:
Stephen L. DeMaria Hannah Bruce, General Information
(510) 274-0700 Sue Caulton, Investor Contact
(415) 986-1591
FIBREBOARD SELLS WOOD PRODUCTS GROUP
(WALNUT CREEK, CALIFORNIA, September 26, 1995)--Fibreboard Corporation
(AMEX:FBD) today announced that it has concluded the sale of its Wood Products
Group to Sierra Pacific Industries. The transaction includes approximately
76,000 acres of timberland and all of the operating facilities at Standard,
Chinese Camp, Red Bluff and Keystone, California. The sale price of $245
million, which is subject to certain post closing adjustments, will result in an
after-tax gain of approximately $75 million or $8.34 per share which will be
included in Fibreboard's third quarter earnings. Estimated post-sale book value
will be in the range of $24 - $26 per share. Proceeds will be used to pay down
debt as well as fund the company's expansion plans.
Fibreboard's Chairman, John Roach, said, "While the Wood Products Group has
long been an integral part of Fibreboard's business dating back over 75 years,
we view the sale as a significant step forward as we work to expand Fibreboard's
leadership role in the building products industry. As a result of our
strategy, Fibreboard has built a solid foundation in the building products
industry through our vinyl siding manufacturing and distribution facilities and
our industrial insulation products business. We continue to look for
additional acquisition candidates that complement our existing base such as the
three recently announced acquisitions that are under way. In August Fibreboard
announced a major expansion of its exterior building products distribution
centers increasing the current total by 37 percent versus one year ago. We more
recently announced our intention to acquire Vytec Corporation, a leading
Canadian manufacturer of vinyl siding. This transaction will make Fibreboard
one of five largest vinyl siding manufacturers in North America.
"In addition to Fibreboard's expansion in the vinyl siding industry, the
company has also entered into negotiations to purchase the assets of Bear
Mountain Ski Resort in Southern California. The acquisition, subject to
satisfactory completion of due diligence, complements our two other resorts in
Northern California, Northstar-at-Tahoe and Sierra-at-Tahoe, and would make
Fibreboard the largest ski operator in California," concluded Roach.
Headquartered in Northern California, Fibreboard Corporation is a leader in
the building products industry, manufacturing vinyl products and industrial
insulation. Its vinyl products business also operates an extensive multi-state
distribution network for exterior building products. Registered trade names
include Norandex (vinyl products) and Pabco (industrial insulation). The
company also owns and operates two California resorts: Northstar-at-Tahoe, an
all season ski and golf resort and conference center, and Sierra-at-Tahoe, a day
ski facility.
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