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EXECUTION COPY
December 26, 1996
Xx. Xxxxxx X. Xxxxxx, Chairman Xx. Xxxxx X. Xxxxx,
Box USA Chairman, President and
000 Xxxxxxx Xxxxxx Xxxxx Xxxxxxxxx Xxxxxxx
Xxxxxxxx, XX 00000 Stone Container Corporation
000 X. Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Re: Amendment Number 4 to Asset Purchase Agreement dated as of November 1,
1995, by and between St. Xxx Forest Products Company, St. Xxx Container
Company and St. Xxx Paper Company, on the one hand, and Four M
Corporation and Port St. Xxx Paper Company, on the other hand, as
amended (the "Agreement").
Dear Messrs. Mehiel and Stone:
Pursuant to our negotiations on Friday, December 6, 1996, this
amendment Number 4 (the "Fourth Amendment") to the Agreement is entered into as
of December 6, 1996 (the "Amendment Date") by and among St. Xxx Corporation, a
Florida corporation formerly known as St. Xxx Paper Company ("SJC"), St. Xxx
Forest Products Company, a Florida corporation ("SJFP"), and St. Xxx Container
Company, a Florida corporation ("SJCC") and St. Xxxxxx Land and Development
Company ("SJLD"), on the one hand, and Four M Corporation, a Maryland
corporation, and Box USA Group, Inc., a Maryland corporation (collectively with
Four M Corporation, "FMC") and Florida Coast Paper Company, L.L.C., a Delaware
limited liability company, ("JV"), on the other hand. All terms not otherwise
defined herein have those meanings set forth in the Agreement.
WHEREAS, pursuant to the Agreement, Buyer agreed to pay Seller a
purchase price of Three Hundred Ninety Million and 00/100 Dollars
($390,000,000), subject to the Purchase Price Adjustment;
WHEREAS, Seller calculated the Purchase Price Adjustment to be
Forty Five Million, Nine Hundred Seventy Four Thousand, Eight Hundred One and
00/100 Dollars ($45,974,801);
WHEREAS, Buyer delivered the Dispute Notice that claimed it is
owed an additional Seventeen Million, Ninety Six Thousand and 00/100 Dollars
($17,096,000), plus applicable interest, in Purchase Price Adjustment, including
Eleven Million, Eight Hundred Ninety Seven Thousand and 00/100 Dollars
($11,897,000) attributable to FMC and Five Million, One Hundred Ninety Nine
Thousand and 00/100 Dollars ($5,199,000)
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attributable to JV;
WHEREAS, Seller has to date paid Buyer a Purchase Price Adjustment
of Forty Six Million, Eight Hundred Nineteen Thousand, Six Hundred Thirty Eight
and 00/100 Dollars ($46,819,638), of which Thirty Four Million, Five Hundred
Eighty Seven Thousand, Six Hundred Eighty Nine and 00/100 Dollars ($34,587,689)
were paid to FMC and of which Twelve Million, Two Hundred Thirty One Thousand,
Nine Hundred Forty Nine and 00/100 Dollars ($12,231,949) were paid to JV; and
WHEREAS, the parties have decided to fully and finally settle and
compromise their dispute as provided herein;
NOW, THEREFORE, the parties hereby agree that:
1. Subject to the proviso in Section 3, (a) the final Purchase
Price Adjustment is Fifty Five Million, Eight Hundred Nineteen Thousand, Six
Hundred Thirty Eight and 00/100 Dollars ($55,819,638), of which Nine Million and
00/100 Dollars ($9,000,000) plus interest will be paid as provided herein; and
(b) the final Purchase Price, as adjusted by the Purchase Price Adjustment, is
Three Hundred Thirty Four Million, One Hundred Eighty Thousand, Three Hundred
Sixty Two Dollars and 00/100 Dollars ($334,180,362).
2. The Purchase Price Adjustment shall not be submitted to a
Reviewing Accountant pursuant to Section 3.07 of the Agreement.
3. SJCC shall pay to FMC by wire transfer of immediately available
funds to an account of Box USA Group, Inc. designated by FMC Five Million, Four
Hundred Eleven Thousand, Two Hundred Twenty Seven and 65/100 Dollars
($5,411,227.65) consisting of Five Million, Two Hundred Fourteen Thousand and
00/100 Dollars ($5,214,000) of the Purchase Price Adjustment and One Hundred
Ninety Seven Thousand, Two Hundred Twenty Seven and 65/100 Dollars ($197,227.65)
interest pursuant to Section 3.05 of the Agreement as calculated in the interest
schedule attached hereto and made a part hereof; provided, however, in the event
FMC has not been paid One Hundred Eighty One Thousand, Five Hundred Thirty Nine
and 32/100 Dollars ($181,539.32) in respect of Accounts Receivable of Xxxxxxx
Farms, Inc. ("Xxxxxxx") by December 31, 1996, then SJCC shall pay to FMC by wire
transfer in immediately available funds any of the foregoing amount not paid by
such date and FMC shall assign Accounts Receivable of Xxxxxxx in such amount to
SJCC. For these purposes, if Xxxxxxx had accounts payable to both SJCC and FMC,
any amounts paid to FMC after May 30, 1996 shall first be deemed to have been
paid to FMC with respect to Accounts Receivable of SJCC.
4. SJFP shall pay to JV by wire transfer of immediately available
funds to an account designated by JV Three Million, Nine Hundred Twenty Four
Thousand, Six Hundred Twenty Nine and 84/100 ($3,924,629.84) consisting of Three
Million, Seven Hundred Eighty Six Thousand and 00/100 ($3,786,000) of the
Purchase Price Adjustment and One Hundred Thirty Eight Thousand, Six Hundred
Twenty Nine and 84/100 ($138,629.84) interest pursuant to Section 3.05 of the
Agreement as set forth in the
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interest schedule attached hereto and made a part hereof.
5. JV and SJLD agree that Section 8 of the Wood Fiber Supply
Agreement dated as of May 30, 1996 between SJLD and JV is hereby amended to read
as follows:
Seller shall invoice Buyer on a weekly basis for
deliveries made during each week; and, for all deliveries made
during the first and second year of this Agreement, Buyer shall
pay Seller within 30 days from the date of such invoices, which
date shall not be earlier than the Friday of the week during which
the deliveries were made; for the next three years of the term of
this Agreement, Buyer shall pay Seller within 14 days from the
date of such invoices; and for the remainder of the term of this
Agreement, Buyer shall pay Seller within seven days from the date
of such invoices.
6. In consideration of the foregoing and of the mutual release set
forth in Section 7 hereof and of the representations and warranties and
covenants contained herein, each of SJC, SJFP and SJCC, for and on behalf of
itself, its predecessors, successors, parents, subsidiaries, affiliates, and
assigns, and each and all of its present and former directors, stockholders,
officers, employees, partners, attorneys, investment bankers, advisors,
auditors, accountants, principals and agents, and their respective heirs,
executors, personal representatives, trustees, estates, principals, agents,
partners, administrators, predecessors, successors, and assigns, DOES HEREBY
FULLY AND FOREVER REMISE, RELEASE, SETTLE, COMPROMISE, AND DISCHARGE each of FMC
and JV and its predecessors, successors, parents, subsidiaries, affiliates, and
assigns, and each and all of its present and former directors, stockholders,
officers, employees, partners, attorneys, investment bankers, advisors,
auditors, accountants, principals and agents, and their respective heirs,
executors, personal representatives, trustees, estates, principals, agents,
partners, administrators, predecessors, successors and assigns, of and from any
and all liabilities which in any way relate to the Purchase Price Adjustment or
the calculation thereof (or which have arisen or could have arisen therefrom, or
arise now or hereafter arise therefrom), including all claims, rights, demands,
liens, agreements, contracts, covenants, actions, suits, causes of action,
obligations, controversies, debts, costs, expenses, accounts, damages,
judgments, losses, matters and issues, of whatever kind or nature, in law,
equity or otherwise, whether known or unknown, whether or not concealed or
hidden, which against them, or any of them, each of SJC, SJFP or SJCC, or its
predecessors, successors, parents, subsidiaries, affiliates, or assigns, or any
of its present or former directors, stockholders, officers, employees, partners,
attorneys, investment bankers, advisors, auditors, accountants, principals or
agents, or their respective heirs, executors, personal representatives,
trustees, estates, principals, agents, partners, administrators, predecessors,
successors or assigns, or any of them, have had, may have had, or now have, or
hereafter can, shall or may have with respect thereto, including, without
limitation, any and all claims, which have been, could have been, or in the
future might have been asserted in any court or proceeding, save and excluding
from the provisions of the Fourth Amendment, only the obligations of FMC and JV
arising hereunder.
7. In consideration of the foregoing and of the mutual release set
forth in
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Section 6 hereof and of the representations and warranties and covenants
contained herein, each of FMC and JV, for and on behalf of itself, its
predecessors, successors, parents, subsidiaries, affiliates, and assigns, and
each and all of its present and former directors, stockholders, officers,
employees, partners, attorneys, investment bankers, advisors, auditors,
accountants, principals and agents, and their respective heirs, executors,
personal representatives, trustees, estates, principals, agents, partners,
administrators, predecessors, successors, and assigns, DOES HEREBY FULLY AND
FOREVER REMISE, RELEASE, SETTLE, COMPROMISE, AND DISCHARGE each of SJC, SJFP and
SJCC, and its predecessors, successors, parents, subsidiaries, affiliates, and
assigns, and each and all of its present and former directors, stockholders,
officers, employees, partners, attorneys, investment bankers, advisors,
auditors, accountants, principals and agents, and their respective heirs,
executors, personal representatives, trustees, estates, principals, agents,
partners, administrators, predecessors, successors and assigns, of and from any
and all liabilities which in any way relate to the Purchase Price Adjustment or
the calculation thereof (or which have arisen or could have arisen therefrom, or
arise now or hereafter arise therefrom), including all claims, rights, demands,
liens, agreements, contracts, covenants, actions, suits, causes of action,
obligations, controversies, debts, costs, expenses, accounts, damages,
judgments, losses, matters and issues, of whatever kind or nature, in law,
equity or otherwise, whether known or unknown, whether or not concealed or
hidden, which against them, or any of them, each of FMC and JV, or its
predecessors, successors, parents, subsidiaries, affiliates, or assigns, or any
of its present or former directors, stockholders, officers, employees, partners,
attorneys, investment bankers, advisors, auditors, accountants, principals or
agents, or their respective heirs, executors, personal representatives,
trustees, estates, principals, agents, partners, administrators, predecessors,
successors or assigns, or any of them, have had, may have had, or now have, or
hereafter can, shall or may have with respect thereto, including, without
limitation, any and all claims, which have been, could have been, or in the
future might have been asserted in any court or proceeding, save and excluding
from the provisions of the Fourth Amendment, only the obligations of SJC, SJFP
and SJCC arising hereunder.
8. Article IV of the Agreement is hereby amended to add the
following provision:
4.16. Fourth Amendment. The execution, delivery and performance by
Seller and SJC of the Fourth Amendment and the mutual release
contained therein is within Seller's and SJC's powers and has been
duly authorized by all necessary actions on the part of Seller and
SJC. The Fourth Amendment constitutes a valid and binding
agreement of Seller and SJC enforceable against them in accordance
with its terms except that (a) such enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium (whether
general or specific) or other similar laws now or hereafter in
effect relating to creditor's rights generally and (b) the remedy
of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may
be brought. Neither Seller nor SJC has assigned, encumbered or in
any manner
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transferred all or any portion of the claims covered by
the mutual release contained therein. No notice to or filing with,
and no permit, authorization, consent or approval of, any person
or Governmental Entity is necessary for the execution, delivery
and performance of the Fourth Amendment and the mutual release
contained therein. The execution, delivery and performance by each
of Seller and SJC of the Fourth Amendment and the mutual release
contained therein will not result in a violation or breach of any
agreement or obligation to which Seller or SJC is a party or by
which Seller or SJC or its respective assets may be bound. In
effecting and executing the Fourth Amendment and the mutual
release contained therein, each of Seller and SJC has received,
from its own legal counsel, advice as to its legal rights, and
that it understands the content and legal effect of the Fourth
Amendment and the mutual release contained therein without any of
which it would not have executed or delivered said Fourth
Amendment or release.
9. Article V of the Agreement is hereby amended to add the
following provision:
5.11. Fourth Amendment. The execution, delivery and performance by
FMC and JV of the Fourth Amendment and the mutual release
contained therein are within FMC's and JV's powers and has been
duly authorized by all necessary actions on the part of FMC and
JV. The Fourth Amendment constitutes a valid and binding agreement
where applicable of FMC and JV enforceable against each of them in
accordance with its terms except that (a) such enforcement may be
subject to bankruptcy, insolvency, reorganization, moratorium
(whether general or specific) or other similar laws now or
hereafter in effect relating to creditor's rights generally and
(b) the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to equitable defenses and
to the discretion of the court before which any proceeding
therefor may be brought. Neither FMC nor JV has assigned,
encumbered or in any manner transferred all or any portion of the
claims covered by the mutual release contained therein. No notice
to or filing with, and no permit, authorization, consent or
approval of, any person or Governmental Entity is necessary for
the execution, delivery and performance of the Fourth Amendment
and the mutual release contained therein. The execution, delivery
and performance by FMC and JV of the Fourth Amendment and the
mutual release contained therein will not result in a violation or
breach of any agreement or obligation to which FMC or JV is a
party or by which FMC or JV or its respective assets may be bound.
In effecting and executing the Fourth Amendment and the mutual
release contained therein each of FMC and JV has received, from
its own legal counsel, advice as to its legal rights, and that it
understands the content and legal effect of the Fourth Amendment
and the mutual release contained therein without any of
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which neither FMC nor JV would have executed or delivered said
Fourth Amendment or release.
10. All parties hereto acknowledge and agree that this is a
compromise settlement which is not in any respect, nor for any purpose, to be
deemed or construed to be any admission or concession of any liability
whatsoever on the part of any person, firm or corporation whatsoever.
11. Section 11.01 of the Agreement is hereby amended to add the
following at the end of Section 11.01 thereof:
Notwithstanding the foregoing, the representations and
warranties in Section 4.16 and 5.11 of the Agreement and
the releases set forth in Sections 6 and 7 of the Fourth
Amendment (which shall be deemed covenants within the
meaning of the Agreement) shall survive without
limitation, and the representation and warranty in Section
4.04 of the Agreement as to the financial statements
covered thereby and in Section 6.25 of the Agreement shall
terminate as of the Amendment Date and be of no further
force and effect as to any matters relating (i) to the
Purchase Price Adjustment, Net Working Capital, Closing
Sales Proceeds or Closing Capital Expenditures, or (ii) to
Receivables, Inventories or Payables as of any date.
12. Section 11.02 of the Agreement is hereby amended to add the
following at the end of Section 11.02(c) before the word "and":
or (iv) any action or proceeding brought at any time
against Seller Group by Xxx Xxxxxx (individually or
otherwise) or D&M Partnership with respect to the
Agreement or the transactions contemplated thereby,
13. No other provisions, terms or conditions of the Agreement,
including but not limited to, the representations and warranties and covenants,
are hereby amended and all other provisions, terms and conditions of the
Agreement, including but not limited to, the representations and warranties and
covenants, remain in full force and effect.
14. The Fourth Amendment and the mutual release contained herein
shall be construed in accordance with, and all disputes hereunder shall be
governed by, interpreted and enforced in accordance with the laws of the State
of Florida.
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Please execute below to evidence your acknowledgement of and
agreement to the Fourth Amendment and the mutual release contained herein.
Very truly yours,
ST. XXX CORPORATION
(formerly St. Xxx Paper Company)
ST. XXX FOREST PRODUCTS COMPANY
ST. XXX CONTAINER COMPANY
By: /s/ X.X. Xxxxxxxx
---------------------------------
Name: X.X. Xxxxxxxx
Title: Chairman
ST. XXXXXX LAND AND DEVELOPMENT
COMPANY (As to Section 5 only)
By: /s/ X.X. Xxxxxxxx
--------------------------------------
Name: X.X. Xxxxxxxx
Title: President
ACKNOWLEDGED AND AGREED:
FOUR M CORPORATION FLORIDA COAST PAPER COMPANY, L.L.C.
(successor in interest to Port
By: /s/ Xxxxxx X. Xxxxxxxx St. Xxx Paper Company)
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Secretary
BOX USA GROUP, INC. By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
By: /s/ Xxxxxx X. Xxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Secretary
cc: Xxxxxx X. Xxxxxxx, Esq.
Xxxxxx X. Xxxxxxxx, Esq.
Xxxxxxx Xxxxxx, Esq.
