EXHIBIT 10.2
SAWMILLS SUBSIDIARY ASSET PURCHASE AGREEMENT
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THIS SAWMILLS SUBSIDIARY ASSET PURCHASE AGREEMENT (this "Agreement"), dated
as of February 9, 1998, by and among POTLATCH CORPORATION, a Delaware
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corporation (the "Purchaser"), and ▇▇▇▇▇▇▇▇-▇▇▇▇▇ LUMBER COMPANY, a Mississippi
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corporation ("Sawmills"),
W I T N E S S E T H:
WHEREAS, Purchaser desires to purchase and Sawmills desires to sell all of
the assets of Sawmills on the terms and conditions set forth below; and
WHEREAS, concurrently with the execution and delivery of this Agreement by
the parties hereto, Purchaser, Timberland Growth Corporation, a Delaware
corporation ("TGC"), Beaver Acquisition Corporation, a Mississippi corporation
("Newsub"), and ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Company, a Mississippi corporation (the
"Company"), are entering into that certain Agreement and Plan of Merger, dated
as of the date hereof (the "Merger Agreement"), which contemplates, among other
things, TGC's acquisition, immediately prior to the Closing hereunder, of all of
the capital stock of the Company, through the merger of Newsub with and into the
Company (the "Merger"); and
WHEREAS, concurrently with the execution and delivery of this Agreement by
the parties hereto, Purchaser, ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Veneers, L.P., a Mississippi
limited partnership (the "Partnership"), and ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Management Services
LLC, a Mississippi limited liability company ("LLC"), are entering into that
certain Asset Purchase Agreement, dated as of the date hereof (the "Asset
Purchase Agreement"), which contemplates, among other things, Purchaser's
acquisition, immediately prior to the closing under the Merger Agreement, of
certain assets of Partnership and LLC, including all of the common stock of
Sawmills; and
WHEREAS, concurrently with the execution and delivery of this Agreement by
the parties hereto, Purchaser and ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Timber Company, a Mississippi
corporation ("Logging"), are entering into that certain Logging Subsidiary Asset
Purchase Agreement, dated as of the date hereof (the "Logging Asset Purchase
Agreement"), which contemplates, among other things, Purchaser's acquisition,
contemporaneously with the Closing hereunder, of all of the assets of Logging;
and
WHEREAS, the parties hereto desire to make certain representations,
warranties and covenants in connection with this Agreement:
NOW, THEREFORE, in consideration of the mutual representations, warranties,
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto agree as follows:
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ARTICLE I
CERTAIN DEFINITIONS
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Section 1.1 Certain Definitions. As used in this Agreement, the following
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terms have the respective meanings set forth below:
"Adverse Consequences" means all actions, suits, proceedings, hearings,
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investigations, charges, complaints, claims, demands, injunctions, judgments,
orders, decrees, rulings, damages, dues, penalties, fines, costs, reasonable
amounts paid in settlement, liabilities, obligations, taxes, liens, losses,
expenses and fees, including court costs and reasonable attorneys' fees and
expenses.
"Agreement" means this Sawmills Subsidiary Asset Purchase Agreement.
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"Asset Purchase Agreement" has the meaning set forth in the fourth recital
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of this Agreement.
"Assets Purchase Price" has the meaning set forth in Section 2.4(a).
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"Assumed Debts" means any Debts of Sawmills at the Closing Date.
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"Assumed Liabilities" has the meaning set forth in Section 2.2.
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"▇▇▇▇ of Sale" means the ▇▇▇▇ of Sale, Assignment and Assumption Agreement
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substantially in the form of Exhibit A hereto.
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"Business Day" means a day, other than a Saturday or Sunday, on which
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commercial banks in Memphis, Tennessee and in San Francisco, California are open
for the general transaction of business.
"Closing" has the meaning set forth in Section 2.5.
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"Closing Date" has the meaning set forth in Section 2.5.
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"Company" has the meaning set forth in the recitals to this Agreement.
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"Debt" means any obligation for borrowed money or representing the purchase
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price of property deferred and unpaid beyond normal trade terms, or any lease
obligation which under GAAP is to be capitalized, or any guarantee of any such
obligation.
"Effective Time" means the effective time under the Merger Agreement.
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"Excluded Liabilities" has the meaning set forth in Section 2.3.
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"GAAP" means generally accepted accounting principles as in effect in the
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United States on the date of this Agreement, applied on a consistent basis.
"Governmental Authority" means any national, federal, state, provincial,
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country, municipal or local government, foreign or domestic, or the government
of any political subdivision of any of the foregoing, or any entity, authority,
agency, ministry or other similar body exercising executive, legislative,
judicial, regulatory or administrative authority or functions of or pertaining
to government, including any authority or other quasi-governmental entity
established to perform any of such functions.
"Hired Employees" has the meaning set forth in Section 5.2.
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"HSR Act" means the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976,
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as amended.
"Logging" has the meaning set forth in the recitals to this Agreement.
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"Logging Asset Purchase Agreement" has the meaning set forth in the
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recitals to this Agreement.
"Material Adverse Effect" means any effect that is materially adverse to
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the business, financial condition or results of operations of the Businesses (as
defined in the Asset Purchase Agreement) taken as a whole, including, without
limitation, any effect on the Businesses' future business or future financial
condition or results of operations which is reasonably likely to occur.
"Merger" has the meaning set forth in the recitals to this Agreement.
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"Merger Agreement" has the meaning set forth in the recitals to this
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Agreement.
"Person" means an individual, partnership, corporation, limited liability
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company, joint stock company, unincorporated organization or association, trust,
joint venture, association or other organization, whether or not a legal entity,
or a Governmental Authority.
"Sawmills" has the meaning set forth in the first paragraph of this
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Agreement.
"Sawmills Acquired Assets" has the meaning set forth in Section 2.1.
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"Sawmills Amount" means $20,000,000, (a) minus the aggregate amount of Debt
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of Sawmills as of the Closing Date, (b) plus the amount of Sawmills' cash and
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cash equivalents on hand as of the Closing Date, and (c) minus the aggregate
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amount required to be paid by Sawmills to its officers, directors or employees
which are triggered by this Agreement or by the Merger Agreement or the
consummation of the transactions contemplated hereby or thereby, but excluding
any such amounts actually paid by Sawmills prior to the Closing Date.
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"Sawmills Business" means the business of operating the sawmill facilities
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of Sawmills located near Waltersville, Mississippi, including but not limited
to, the operation of planer ▇▇▇▇▇, drying, inspecting and inventory facilities
and sales operations.
"Working Capital" means the total current assets (excluding cash and cash
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equivalents) of Sawmills at the Closing Date minus the total current liabilities
(excluding short-term Debt and the current portion of long-term Debt) of
Sawmills at the Closing Date (which difference may be a negative number),
calculated in accordance with GAAP.
"Working Capital Adjustment" means (a) the amount, if any, by which the
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Working Capital of Sawmills exceeds $3,800,000 or (b) the amount, if any, by
which $3,800,000 exceeds the Working Capital of Sawmills.
Section 1.2 Interpretation. Unless otherwise indicated to the contrary
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herein by the context or use thereof: (i) the words, "herein," "hereto,"
"hereof" and words of similar import refer to this Agreement as a whole and not
to any particular Section or paragraph hereof; (ii) the word "including" means
"including, but not limited to"; (iii) masculine gender shall also include the
feminine and neuter genders, and vice versa; and (iv) words importing the
singular shall include the plural, and vice versa.
ARTICLE II
SALE OF ASSETS OF SAWMILLS
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Section 2.1 Sale and Purchase of Sawmills Assets. Subject to the terms
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and conditions of this Agreement, Sawmills shall sell, transfer, convey, assign
and deliver to Purchaser, and Purchaser shall purchase at Closing hereunder, all
of Sawmills's right, title and interest in and to the assets now owned by
Sawmills, or in which Sawmills has a right, title or interest at any time prior
to Closing such reference to assets being deemed to refer to assets as above
described, of every nature and kind, tangible or intangible, wheresoever located
and whether or not carried or reflected on the books of account and financial
records of Sawmills (the "Sawmills Acquired Assets"), including, but not limited
to, the assets listed on Schedule 2.1.
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Section 2.2 Assumed Liabilities. Except as set forth in Section 2.3,
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Purchaser hereby agrees to assume, satisfy or perform when due all of the
liabilities and obligations (known or unknown, absolute, accrued, contingent or
otherwise) of Sawmills as of the Closing Date arising from the operation of the
Sawmills Business prior to the Closing Date, including, without limitation,
obligations of Sawmills with respect to Debts and current liabilities of
Sawmills as of the Closing Date (the "Assumed Liabilities").
Section 2.3 Excluded Liabilities. Purchaser shall not assume any
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liability for Taxes of Sawmills imposed on or calculated by reference to income
during any period before or after the Closing Date (the "Excluded Liabilities").
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Section 2.4 Assets Purchase Price.
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(a) Sawmills Assets Purchase Price. At Closing, Purchaser shall pay to
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Sawmills (the "Assets Purchase Price"):
(i) in cash to Sawmills by wire transfer of immediately available
funds to an account designated in writing by Sawmills at least three
Business Days prior to the Closing Date, an amount equal to either (A) the
Sawmills Amount or (B) such other amount less than the Sawmills Amount as
Purchaser and Sawmills shall agree prior to the Closing Date; and
(ii) a Promissory Note on such commercially reasonable terms and
conditions as the parties shall agree prior to the Closing Date, for an
amount equal to the difference, if any, between the Sawmills Amount and
that portion of the Assets Purchase Price paid in cash pursuant to clause
(i) above.
(b) Calculation of Assets Purchase Price. Purchaser and Sawmills shall
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consult with each other from time to time with respect to the anticipated
Closing Date hereunder. Upon determination of the anticipated Closing Date,
Sawmills shall promptly prepare and deliver to Purchaser a detailed schedule
showing the estimated amount payable at Closing pursuant to Section 2.4(a) as of
such date, including any change in such amounts anticipated to occur prior to
the anticipated Closing Date. Sawmills shall make available to Purchaser such
information as Purchaser shall reasonably request to verify the information set
forth in such schedule and shall immediately inform Purchaser of any changes to
the amounts set forth therein. Prior to the Closing, Purchaser and Sawmills
shall agree on a schedule setting forth the amounts payable at Closing pursuant
to Section 2.4(a), which schedule shall be executed by Purchaser and Sawmills.
As a means of clarifying the intentions of the parties hereto with respect to
the calculation of the Assets Purchase Price, Schedule 2.4(b) is an example of
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how the Assets Purchase Price would be calculated based on the assumptions set
forth therein.
Section 2.5 Closing. The Closing for the sale and purchase of the
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Sawmills Acquired Assets (the "Closing") shall take place at the offices of
Pillsbury Madison & Sutro LLP, ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
on the first Business Day after the Effective Time under the Merger Agreement or
such earlier time as the parties may agree, but in any event following the
satisfaction or waiver of the conditions set forth in Article VI hereof (other
than those conditions that by their nature are to be satisfied at Closing, but
subject to the satisfaction or waiver of those conditions) or at such other
place as the parties may agree in writing (the date and time of the Closing
determined in accordance with this Section 2.5 are herein referred to as the
"Closing Date").
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF SAWMILLS
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Sawmills represents and warrants to Purchaser as follows:
Section 3.1 Organization and Qualification. Sawmills is a corporation
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duly organized, validly existing and in good standing under the laws of
Mississippi and has the corporate power and authority and all licenses, permits
and authorizations necessary to own or lease its property and assets and to
carry on its business as presently conducted, and as presently proposed to be
conducted, and is duly qualified to do business as a foreign corporation and is
in good standing in each jurisdiction wherein the nature of its business or the
ownership of its assets makes such qualification necessary, except where the
failure to be so qualified and in good standing would not have a Material
Adverse Effect. Sawmills has previously provided or made available to Purchaser
true and complete copies of (i) its articles of incorporation and (ii) its
bylaws as currently in effect (the "Organizational Documents").
Section 3.2 Authorization. Sawmills has the corporate power and authority
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to execute and deliver this Agreement, to perform its obligations hereunder and
thereunder, all of which have been duly authorized by all requisite action.
This Agreement has been duly authorized, executed and delivered by Sawmills, and
is enforceable against Sawmills in accordance with its terms, except as such may
be subject to or limited by bankruptcy, insolvency, reorganization or other laws
relating to or affecting creditors' rights generally and by general principles
of equity (regardless of whether such enforceability is considered in a
proceeding in equity or at law).
Section 3.3 Non-contravention. Neither the execution and delivery of this
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Agreement nor the consummation of the other transactions contemplated hereby nor
the fulfillment of and the performance by Sawmills of its obligations hereunder
will (with or without notice or lapse of time) contravene any provision
contained in the Organizational Documents or any resolution or similar corporate
act adopted by the board of directors or shareholders of Sawmills.
Section 3.4 As Is. THE PURCHASER AND SAWMILLS HEREBY AGREE THAT, EXCEPT
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TO THE EXTENT SET FORTH HEREIN, IN THE SCHEDULES HERETO OR IN ANY INSTRUMENT
DELIVERED IN CONNECTION HEREWITH, (A) THE SAWMILLS ACQUIRED ASSETS ARE BEING
SOLD ON AN "AS IS, WHERE IS" BASIS AND (B) SAWMILLS MAKES NO WARRANTIES, EXPRESS
OR IMPLIED, OF MERCHANTABILITY, FITNESS OR OTHERWISE WITH RESPECT TO THE
SAWMILLS ACQUIRED ASSETS OR OTHER PROPERTY.
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ARTICLE IV
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REPRESENTATIONS AND WARRANTIES OF
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PURCHASER
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Purchaser represents and warrants to Sawmills as follows:
Section 4.1 Organization. Purchaser is a corporation duly organized,
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validly existing and in good standing under the laws of the State of Delaware
and has the corporate power and authority to own or lease its property and
assets and to carry on its business as presently conducted.
Section 4.2 Authorization. Purchaser has the corporate power and
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authority to execute and deliver this Agreement and each other agreement or
instrument to be executed in connection herewith and to perform its obligations
hereunder and thereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly authorized
by the board of directors of Purchaser, and no other corporate proceedings on
the part of Purchaser are necessary to authorize this Agreement and the
transactions contemplated hereby. This Agreement and each other agreement or
instrument to be executed in connection herewith have been duly authorized,
executed and delivered by Purchaser and constitute a valid and binding agreement
of Purchaser, enforceable against Purchaser in accordance with its terms, except
as such may be subject to or limited by bankruptcy, insolvency, reorganization
or other laws relating to or affecting creditors' rights generally and by
general principles of equity (regardless of whether such enforceability is
considered in a proceeding in equity or at law).
Section 4.3 Noncontravention. The execution, delivery and performance by
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Purchaser of this Agreement and the consummation of the transactions
contemplated hereby will not (a) contravene any provision contained in the
articles of incorporation or bylaws of Purchaser, (b) conflict with, violate or
result in a material breach (with or without the lapse of time, the giving of
notice or both) under (i) any material contract, agreement, commitment,
indenture, mortgage, lease, pledge, note, bond, license, permit or other
instrument or obligation or (ii) any judgment, order, decree, statute, law, rule
or regulation or other restriction of any Governmental Authority, in each case
to which Purchaser is a party or by which it is bound or to which any of its
assets or properties are subject.
ARTICLE V
CERTAIN COVENANTS AND AGREEMENTS
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Section 5.1 Commercial Efforts; Further Assurances. (a) Subject to the
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terms and conditions herein provided, each of the parties hereto shall use its
commercially reasonable efforts to take, or cause to be taken, all action, and
to do, or cause to be done, all things reasonably necessary, proper or advisable
under applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement. Purchaser
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and Sawmills will use their respective commercially reasonable efforts to obtain
all consents and other approvals of all Governmental Authorities and third
parties necessary to the consummation of the transactions contemplated by this
Agreement and the Asset Purchase Agreement.
(b) In the event any claim, action, suit, investigation or other proceeding
by any Governmental Authority or other Person is commenced that questions the
validity or legality of any of the transactions contemplated hereby or seeks
damages in connection therewith, the parties agree to cooperate and use
commercially reasonable efforts to defend against such claim, action, suit,
investigation or other proceeding and, if an injunction or other order is issued
in any such action, suit or other proceeding, to use commercially reasonable
efforts to have such injunction or other order lifted, and to cooperate
reasonably regarding any other impediment to the consummation of the
transactions contemplated hereby.
(c) (i) Each party agrees that it shall, as soon as reasonably practicable
after it learns of the existence of any facts or circumstances causing any of
the representations and warranties herein made, respectively, by Sawmills or
Purchaser (including, without limitation, those contained in Article III or
Article IV), to have been incorrect when made or to have thereafter become
incorrect (whether through its discovery of an inadvertent, good faith error at
the time this Agreement was signed or the happening thereafter of any event or
occurrence), deliver to the others written notice of such incorrect
representations and warranties; and (ii) each party shall give prompt written
notice to the other of any failure of Sawmills or Purchaser, as the case may be,
to comply with or satisfy any material covenant, condition or agreement to be
complied with or satisfied by it under this Agreement.
Section 5.2 Employee Benefits. Purchaser shall offer employment to all
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employees of Sawmills at the same salaries or wages as in effect immediately
prior to the Closing Date other than those identified in a notice to be
delivered by Purchaser to Sawmills at least 30 days prior to the Closing Date.
At any time after the Closing Date, Purchaser, in its sole discretion, may
extend to the employees of Sawmills who become employees of Purchaser (each, a
"Hired Employee," and collectively, the "Hired Employees"), the employee benefit
plans and programs, including tax-qualified defined benefit and defined
contribution plans, applicable to similarly situated employees of Purchaser and
its Subsidiaries. Until that time, Purchaser shall maintain employee benefit
plans and programs for the Hired Employees of Sawmills with terms no less
favorable to such employees than the Plans in place as of the Closing Date for
such employees and shall continue to make all contributions to such plans for
such period on a basis consistent with Sawmills's past practices. The Hired
Employees shall be given credit for all purposes under all of Purchaser's
pension, welfare and fringe benefit plans, including for purposes of determining
vacation and severance pay, for the period during which such employee was
employed by Sawmills or any ERISA Affiliate (as that term is defined in the
Asset Purchase Agreement); provided, however, that in no event will Purchaser be
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required to credit service to a Hired Employee to the extent that such credit
would result in a duplication of benefits. Hired Employees shall be entitled to
participate in the welfare plans maintained by Purchaser for the Hired Employees
effective upon the Closing Date without any waiting periods, any evidence of
insurability or the application of any preexisting condition restrictions, and
counting claims incurred prior to the Closing Date
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for purposes of applying co-payments, deductibles, out-of-pocket maximums and
other such matters. Effective upon the Closing Date, Purchaser shall become the
plan sponsor of all of the Plans.
Section 5.3 Indemnification.
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(a) Purchaser agrees to indemnify Sawmills from and against the entirety of
any Adverse Consequences Sawmills shall suffer caused by any liability or
obligation of Sawmills which is an Assumed Liability.
(b) Sawmills agrees to indemnify the Purchaser from and against any Adverse
Consequences the Purchaser shall suffer caused by any liability or obligation of
Sawmills which is not an Assumed Liability (including any liability of Sawmills
which is not an Assumed Liability but which becomes a liability of the Purchaser
under any bulk transfer law of any jurisdiction, under any common law doctrine
or statutory provision of de facto merger or successor or transferee liability,
or otherwise by operation of law).
ARTICLE VI
CONDITIONS TO CLOSING
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Section 6.1 Conditions to the Obligations of All Parties. The Closing of
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the transaction contemplated hereby shall take place immediately after the
closing under the Merger Agreement. The respective obligations of each party
to consummate the transactions contemplated by this Agreement shall be subject
to the satisfaction or waiver at or prior to the Closing of each of the
following conditions:
(a) Change in Law. No statute, rule or regulation shall have been enacted
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or issued by any Governmental Authority that makes the consummation of the
transactions contemplated by this Agreement illegal.
(b) Injunction. On the Closing Date, there shall be no effective
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injunction, writ or preliminary restraining order or any order of any nature
issued and outstanding by a court or Governmental Authority of competent
jurisdiction to the effect that the transactions contemplated by this Agreement
may not be consummated as herein provided, and no proceeding or lawsuit shall
have been commenced by any Governmental Authority for the purpose of obtaining
any such injunction, writ or preliminary restraining order.
(c) Filings and Consents. All material consents, authorizations, orders or
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approvals of, and filings or registrations with, any Governmental Authority that
are required in connection with the execution and delivery of this Agreement and
the other documents to be executed in connection herewith and the consummation
of the transactions contemplated hereby and thereby shall have been obtained or
made and shall be in full force and effect.
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(d) HSR Act. Any applicable waiting periods (and any extension thereof)
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related to the HSR Act with respect to the transactions contemplated by this
Agreement shall have expired or otherwise have been terminated.
Section 6.2 Conditions to the Obligations of the Purchaser. The
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obligations of the Purchaser to consummate the transactions contemplated by this
Agreement shall be subject to the satisfaction or waiver at or prior to the
Closing of each of the following conditions:
(a) Representations and Warranties. All representations and warranties
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made by Sawmills in this Agreement and the Schedules hereto shall be true,
correct and complete on the date hereof and as of the Closing Date as though
such representations and warranties were made as of the Closing Date (or on the
date when made in the case of any representation or warranty that specifically
relates to an earlier date), except, in any such case, for such changes that
have occurred as contemplated by the transactions provided for herein or in the
Merger Agreement.
(b) Performance by Sawmills. Sawmills shall have duly performed or
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complied with, in all material respects, all of the covenants, obligations and
conditions to be performed or complied with by it under the terms of this
Agreement prior to or at the Closing.
(c) Instruments of Transfer. Sawmills shall have delivered to Purchaser on
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the Closing Date the ▇▇▇▇ of Sale, any deeds and any other similar instruments
of conveyance and transfer with respect to the Sawmills Acquired Assets as may
be reasonably requested by Purchaser.
Section 6.3 Conditions to the Obligations of Sawmills. The obligations of
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Sawmills to consummate the transactions contemplated by this Agreement shall be
subject to satisfaction or waiver at or prior to the Closing of each of the
following conditions:
(a) Representations and Warranties. All representations and warranties
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made by the Purchaser in this Agreement and the Schedules hereto shall be true,
correct and complete on the date hereof and as of the Closing Date as though
such representations and warranties were made as of the Closing Date (or on the
date when made in the case of any representation or warranty which specifically
relates to an earlier date), and the Purchaser shall have duly performed or
complied with, in all material respects, all of the covenants, obligations and
conditions to be performed or complied with by it under the terms of this
Agreement prior to or at the Closing.
(b) Payment; Instruments of Assumption. Purchaser shall have made the
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payments required to be made pursuant to Section 2.4 hereof and shall have
executed the ▇▇▇▇ of Sale.
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ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
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Section 7.1 Termination. This Agreement may be terminated at any time
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prior to Closing:
(a) by written consent of all of the parties hereto;
(b) by Sawmills, if there has been a material breach by Purchaser of any
representation, warranty or covenant contained in this Agreement that is not
curable or, if curable, is not cured within 30 days after written notice of such
breach is given by Sawmills to Purchaser;
(c) by Purchaser, if there has been a material breach by Sawmills of any
representation, warranty or covenant contained in this Agreement that is not
curable or, if curable, is not cured within 30 days after written notice of such
breach is given by Purchaser to Sawmills;
(d) by Purchaser or Sawmills, if any Governmental Authority shall have
issued an order, decree or ruling or taken any other action restraining,
enjoining or otherwise prohibiting the transactions contemplated by this
Agreement and such order, decree, ruling or other action shall have become final
and nonappealable;
(e) by Purchaser or Sawmills, if the Merger Agreement shall have been
terminated prior to closing thereunder;
(f) by Purchaser or Sawmills, if the Asset Purchase Agreement shall have
been terminated prior to closing thereunder; or
(g) by Purchaser or Sawmills, if the Logging Asset Purchase Agreement shall
have been terminated prior to closing thereunder.
Section 7.2 Effect of Termination. If this Agreement is terminated
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pursuant to Section 7.1 hereof, all rights and obligations of the parties
hereunder shall terminate and no party shall have any liability to the other
party, except that nothing herein will relieve any party from liability for any
willful breach of any representation, warranty, agreement or covenant contained
herein prior to such termination.
Section 7.3 Amendments. This Agreement may not be amended except by an
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instrument in writing signed on behalf of each of the parties hereto.
Section 7.4 Waiver. At any time prior to the Closing, any term, provision
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or condition of this Agreement may be waived in writing (or the time for
performance of any of the obligations or other acts of the other parties hereto
may be extended) by the party that is entitled to the benefits thereof.
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ARTICLE VIII
BULK SALES COMPLIANCE
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Section 8.1 Bulk Sales Compliance. Purchaser hereby waives compliance by
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Sawmills with the provisions of the bulk transfer provisions of Mississippi law,
and Sawmills warrants and agrees to pay and discharge when due all claims of
creditors which could be asserted against Purchaser by reason of such
noncompliance to the extent that such liabilities are not specifically assumed
by Purchaser under this Agreement. Sawmills shall indemnify and agree to hold
Purchaser harmless from, against and in respect of (and shall on demand
reimburse Purchaser for) any loss, liability, cost or expense, including,
without limitation, attorneys' fees, suffered or incurred by Purchaser by reason
of the failure of Sawmills to pay or discharge such claims arising out of
compliance with said bulk transfer provisions. Sawmills shall furnish to
Purchaser prior to Closing such evidence as Purchaser may reasonably request to
confirm their compliance with the provisions of this Article.
ARTICLE IX
MISCELLANEOUS
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Section 9.1 Survival of Representations and Warranties. The
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representations, warranties and covenants of Purchaser and Sawmills in this
Agreement or in any instrument delivered pursuant to this Agreement shall
survive the Closing.
Section 9.2 Exhibits and Schedules. All exhibits and schedules hereto, or
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documents expressly incorporated into this Agreement, are hereby incorporated
into this Agreement and are hereby made a part hereof as if set out in full in
this Agreement.
Section 9.3 Expenses.
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(a) Regardless of whether the transactions provided for in this Agreement
are consummated and except as provided in this Section 9.3 and Section 5.3, all
fees and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
expenses (whether or not the transactions hereby are consummated).
(b) Purchaser shall pay all filing fees, if any, under the HSR Act.
(c) Purchaser shall pay all sales and use taxes, if any, imposed on the
transfer of the Sawmills Acquired Assets pursuant to this Agreement, whether
such taxes are assessed initially against Purchaser or Sawmills.
Section 9.4 Time of the Essence; Computation of Time. Time is of the
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essence for each and every provision of this Agreement.
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Section 9.5 Governing Law; Consent to Jurisdiction. This Agreement shall
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be governed by, and construed in accordance with, the internal laws of the State
of Delaware, without reference to the choice of law or conflicts of law
principles thereof. Any legal action or proceeding with respect to this
Agreement or any document related hereto may be brought in the courts of the
State of Delaware or the United States of America, and, by execution and
delivery of this Agreement, each of Purchaser and Sawmills hereby accepts for
itself and in respect of its property, generally and unconditionally, the
jurisdiction of the aforesaid courts. The parties hereto hereby irrevocably
waive any objection, including, without limitation any forum non conveniens,
which any of them may now or hereafter have to the bringing of such action or
proceeding in such jurisdictions.
Section 9.6 Assignment; Successors and Assigns; No Third Party Rights.
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Except as otherwise provided herein, this Agreement may not be assigned, and any
attempted assignment shall be null and void, except that Purchaser may assign,
in its sole discretion, any or all of its rights, interests or obligations
hereunder to any direct or indirect wholly owned subsidiary of Purchaser.
Subject to the foregoing, this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective heirs, successors, permitted
assigns and legal representatives. This Agreement shall be for the sole benefit
of the parties to this Agreement and their respective heirs, successors,
permitted assigns and legal representatives and is not intended, nor shall be
construed, to give any Person, other than the parties hereto and their
respective heirs, successors, assigns and legal representatives, any legal or
equitable right, remedy or claim hereunder.
Section 9.7 Counterparts. This Agreement may be executed in counterparts,
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any one of which may be by facsimile followed by the originally executed
document forwarded immediately thereafter to the other parties hereto, each of
which shall be deemed an original agreement, but all of which together shall
constitute once and the same instrument.
Section 9.8 Titles and Headings. The titles, captions and table of
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contents in this Agreement are for reference purposes only, and shall not in any
way define, limit, extend or describe the scope of this Agreement or otherwise
affect the meaning or interpretation of this Agreement.
Section 9.9 Entire Agreement. This Agreement, including the Exhibits and
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Schedules attached hereto constitute the entire agreement among the parties with
respect to the matters covered hereby and supersede all previous written, oral
or implied understandings among them with respect to such matters, except to the
extent that other written agreements are expressly referred to herein.
Section 9.10 Severability. Any term or provision of this Agreement that
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is invalid or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of
this
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Agreement is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
POTLATCH CORPORATION
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
___________________________________________
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
▇▇▇▇▇▇▇▇-▇▇▇▇▇ LUMBER COMPANY
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
____________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer
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