EXHIBIT 2
EXECUTION COPY
STOCKHOLDER AGREEMENT
This STOCKHOLDER AGREEMENT, dated as of January 19, 1999 (this
"Agreement"), is made and entered into among Louisiana-Pacific Corporation, a
Delaware corporation ("Parent"), Striper Acquisition, Inc., a Delaware
corporation and wholly owned subsidiary of Parent ("Merger Sub"), and Kohlberg
Associates, L.P., KABT Acquisition Company, L.P. and Xxxxxx X. Xxxxxx (each, a
"Stockholder" and, collectively, the "Stockholders").
RECITALS:
A. Parent, Merger Sub and ABT Building Products Corporation, a Delaware
corporation ("Company"), propose to enter into an Agreement and Plan of Merger,
dated as of the date hereof (the "Merger Agreement"), pursuant to which Merger
Sub will merge with and into Company (the "Merger") on the terms and subject to
the conditions set forth in the Merger Agreement. Except as otherwise defined
herein, terms used herein with initial capital letters have the respective
meanings ascribed thereto in the Merger Agreement.
B. As of the date hereof, each Stockholder beneficially owns and is
entitled to dispose of (or to direct the disposition of) and to vote (or to
direct the voting of) the number of Shares set forth opposite such Stockholder's
name on Schedule A hereto (such Shares, together with any other Shares the
beneficial ownership of which is acquired by such Stockholder during the period
from and including the date hereof through and including the date on which this
Agreement is terminated pursuant to Section 6.2 hereof, are collectively
referred to herein as such Stockholder's "Subject Shares").
C. As a condition and inducement to their willingness to enter into the
Merger Agreement, Parent and Merger Sub have requested that each Stockholder
agree, and each Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
representations, warranties and covenants contained in this Agreement, and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE I
TENDER OF SHARES
Section 1.1 AGREEMENT TO TENDER SHARES. Each Stockholder shall cause to
be validly tendered (and not withdrawn) pursuant to and in accordance with the
terms of the Offer (provided that if the Offer is amended in any manner set
forth in Section 1.1(b) of the Merger Agreement as requiring the consent of
Company, the Stockholders shall not be obligated to tender hereunder unless the
amendment is made with their prior written approval which shall not be
unreasonably withheld), not later than the tenth business day after commencement
of the Offer pursuant to Section 1.1 of the Merger Agreement and Rule 14d-2
under the Exchange Act, all of such Stockholder's Subject Shares. Each
Stockholder hereby acknowledges that Merger Sub's obligation to accept for
payment and pay for Shares (including such Stockholder's Subject
Shares) pursuant to the Offer is subject to the terms and conditions of the
Offer set forth in the Merger Agreement. For all of the Subject Shares validly
tendered in the Offer and not withdrawn, the Stockholders will be entitled to
receive the highest price paid by Merger Sub in the Offer.
ARTICLE II
VOTING OF SHARES
Section 2.1 AGREEMENT TO VOTE SHARES. At any meeting of the
stockholders of Company called to consider and vote upon the adoption of the
Merger Agreement (and at any and all postponements and adjournments thereof),
and in connection with any action to be taken in respect of the adoption of the
Merger Agreement by written consent of stockholders of Company, each Stockholder
shall vote or cause to be voted (including by written consent, if applicable)
all of such Stockholder's Subject Shares in favor of the adoption of the Merger
Agreement and in favor of any other matter necessary for the consummation of the
transactions contemplated by the Merger Agreement and considered and voted upon
at any such meeting or made the subject of any such written consent, as
applicable. At any meeting of the stockholders of Company called to consider and
vote upon any Adverse Proposal (as hereinafter defined) (and at any and all
postponements and adjournments thereof), and in connection with any action to be
taken in respect of any Adverse Proposal by written consent of stockholders of
Company, each Stockholder shall vote or cause to be voted (including by written
consent, if applicable) all of such Stockholder's Subject Shares against such
Adverse Proposal. For purposes of this Agreement, the term "Adverse Proposal"
means any (a) Acquisition Proposal, (b) proposal or action that would reasonably
be expected to result in a breach of any covenant, representation or warranty of
Company set forth in the Merger Agreement, or (c) proposal or action that is
intended or would reasonably be expected to impede, interfere with, delay or
materially and adversely affect the Merger or any of the other transactions
contemplated by the Merger Agreement or this Agreement.
Section 2.2 IRREVOCABLE PROXY.
(a) GRANT OF PROXY. EACH STOCKHOLDER HEREBY APPOINTS PARENT
AND ANY DESIGNEE OF PARENT, EACH OF THEM INDIVIDUALLY, SUCH STOCKHOLDER'S PROXY
AND ATTORNEY-IN-FACT PURSUANT TO THE PROVISIONS OF SECTION 212 OF THE DELAWARE
GENERAL CORPORATION LAW, WITH FULL POWER OF SUBSTITUTION AND RESUBSTITUTION, TO
VOTE OR ACT BY WRITTEN CONSENT WITH RESPECT TO SUCH STOCKHOLDER'S SUBJECT SHARES
IN ACCORDANCE WITH SECTION 2.1 HEREOF. THIS PROXY IS GIVEN TO SECURE THE
PERFORMANCE OF THE DUTIES OF SUCH STOCKHOLDER UNDER THIS AGREEMENT. EACH
STOCKHOLDER AFFIRMS THAT THIS PROXY IS COUPLED WITH AN INTEREST AND SHALL BE
IRREVOCABLE. EACH STOCKHOLDER SHALL TAKE SUCH FURTHER ACTION OR EXECUTE SUCH
OTHER INSTRUMENTS AS MAY BE NECESSARY TO EFFECTUATE THE INTENT OF THIS PROXY.
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(b) OTHER PROXIES REVOKED. Each Stockholder represents that
any proxies heretofore given in respect of such Stockholder's Subject Shares are
not irrevocable, and that all such proxies are hereby revoked.
ARTICLE III
PURCHASE OPTION
Section 3.1 GRANT OF OPTION. Each Stockholder hereby grants to Parent
an irrevocable option (each, an "Option" and, collectively, the "Options") to
purchase such Stockholder's Subject Shares on the terms and subject to the
conditions set forth herein at a purchase price per share equal to $15.00 or the
highest per share price paid in the Offer (the "Purchase Price"). If (i) the
Offer is consummated but (whether due to improper tender or withdrawal of
tender) Merger Sub has not accepted for payment and paid for all of the Subject
Shares, or (ii) the Merger Agreement is terminated (otherwise than pursuant to
Section 8.1(a)(i) thereof or pursuant to Section 8.1(a)(iv) thereof under
circumstances in which Company is entitled to so terminate the Merger Agreement)
in accordance with its terms for reasons other than the failure of Parent or
Merger Sub to fulfill their respective obligations under the Merger Agreement,
the Options shall, in any such case, become exercisable (in whole but not in
part) upon the first to occur of any such event and remain exercisable (in whole
but not in part) until the date that is 30 days after the date of the occurrence
of an event in clause (i) above, or the date that is 90 days after the date of
the occurrence of the event in clause (ii) above (the applicable period of
exercisability being the "Option Period").
Section 3.2 EXERCISE OF OPTION. (a) Parent may exercise all of the
Options, in whole but not in part, at any time or from time to time during the
Option Period. Notwithstanding anything in this Agreement to the contrary,
Parent shall be entitled to purchase all Subject Shares in respect of which it
shall have exercised an Option in accordance with the terms hereof prior to the
expiration of the Option Period, and the expiration of the Option Period shall
not affect any rights hereunder which by their terms do not terminate or expire
prior to or as of such expiration.
(b) If Parent wishes to exercise an Option, it shall deliver
to the applicable Stockholder (each a "Selling Stockholder") a written notice
(an "Exercise Notice") to that effect which specifies a date (an "Option Closing
Date") not earlier than three business days after the date such Exercise Notice
is delivered for the consummation of the purchase and sale of such Subject
Shares (an "Option Closing"). If the Option Closing cannot be effected on the
Option Closing Date specified in the Exercise Notice by reason of any applicable
judgment, decree, order, law or regulation, or because any applicable waiting
period under the HSR Act shall not have expired or been terminated, (i) the
Stockholders shall promptly take all such actions as may be requested by Parent,
and shall otherwise fully cooperate with Parent, to cause the elimination of all
such impediments to the Option Closing and (ii) the Option Closing Date
specified in the Exercise Notice shall be extended to the third business day
following the elimination of all such impediments. The place of the Option
Closing shall be at the offices of Xxxxx, Day, Xxxxxx & Xxxxx, 000 Xxxxxxxxx
Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, and the time of the Option Closing
shall be 10:00 a.m. (Eastern Time) on the Option Closing Date.
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Section 3.3 PAYMENT AND DELIVERY OF CERTIFICATES. At any Option
Closing, Parent shall deliver to each Selling Stockholder, by wire transfer of
immediately available funds to such account as shall have been designated by
such Selling Stockholder to Parent prior to the Option Closing, the Purchase
Price payable in respect of the Subject Shares to be purchased from such Selling
Stockholder at the Option Closing, and each Selling Stockholder shall deliver to
Parent such Subject Shares, free and clear of all Liens, with the certificate or
certificates evidencing such Subject Shares being duly endorsed for transfer by
such Selling Stockholder and accompanied by all powers of attorney and/or other
instruments necessary to convey valid and unencumbered title thereto to Parent,
and shall assign to Parent (pursuant to a written instrument in form and
substance satisfactory to Parent) all rights that such Selling Stockholder may
have to require Company to register such Subject Shares under the Securities
Act.
Section 3.4 ADJUSTMENT UPON CHANGES IN CAPITALIZATION, ETC. In the
event of any change in the capital stock of Company by reason of a stock
dividend, subdivision, reclassification, recapitalization, split, combination,
exchange of shares, extraordinary distribution or similar transaction, the type
and number or amount of shares, securities or other property subject to each of
the Options, and the Purchase Price payable therefor, shall be adjusted
appropriately, and proper provision shall be made in the agreements governing
such transaction, so that (a) Parent shall receive upon exercise of any Option
the type and number or amount of shares, securities or property that Parent
would have retained and/or been entitled to receive in respect of the applicable
Selling Stockholder's Subject Shares if the Option had been exercised
immediately prior to such event relating to Company or the record date therefor,
as applicable, and (b) the applicable Selling Stockholder shall receive upon
exercise of any Option granted by such Selling Stockholder the amount of cash
that such Selling Stockholder would have received as a result of the exercise of
the Option if the Option had been exercised immediately prior to such event
relating to Parent or the record date therefor, as applicable. The provisions of
this Section 3.4 shall apply in a like manner to successive stock dividends,
subdivisions, reclassifications, recapitalizations, splits, combinations,
exchanges of shares, extraordinary distributions or similar transactions.
Section 3.5 ACQUIRED SHARES. In the event that Subject Shares are
acquired by Parent pursuant to the exercise of the Options (such acquired
Subject Shares being "Acquired Shares") and Parent thereafter sells, transfers
or disposes of Acquired Shares within 18 months after the acquisition of such
Acquired Shares (any such sale, transfer or disposition of Acquired Shares
occurring within such 18-month period being a "Sale"), Parent shall promptly pay
to the Selling Stockholders (pro rata, in proportion to the number of Acquired
Shares purchased from each Stockholder) an amount in cash equal to the positive
difference (if any) between the aggregate proceeds received by Parent in the
Sale (net of selling commissions, if any) and the aggregate Purchase Price paid
by Parent for the Acquired Shares sold, transferred or disposed of in such Sale.
Parent shall effect any Sale of Acquired Shares only to an unaffiliated party in
a bona fide arm's-length transaction.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.1 CERTAIN REPRESENTATIONS AND WARRANTIES OF THE
STOCKHOLDERS. Each Stockholder, severally and not jointly, represents and
warrants to Parent as follows:
(a) OWNERSHIP. Such Stockholder is the sole record and
beneficial owner of the number of Shares set forth opposite such Stockholder's
name on Schedule A hereto and has full and unrestricted power to dispose of and
to vote such Shares. Such Shares are now, and at all times during the term
hereof will be, held by such Stockholder, or by a nominee or custodian for the
benefit of such Stockholder, free and clear of all Liens and proxies, except for
any Liens or proxies arising hereunder and restrictions set forth under
applicable securities laws or the Stockholders' Agreement, dated as of October
20, 1992, by and among Company, the Stockholders and other shareholders of
Company named therein (the "Stockholders' Agreement"). The transfer by such
Stockholder of its Subject Shares to Merger Sub pursuant to the Offer or the
applicable Option shall pass to and unconditionally vest in Merger Sub good and
valid title to such Subject Shares, free and clear of all Liens and other than
restrictions set forth under applicable securities laws or the Stockholders'
Agreement. Except as set forth in Schedule A hereto, such Stockholder does not
beneficially own any securities of Company on the date hereof other than such
Shares.
(b) POWER AND AUTHORITY; EXECUTION AND DELIVERY. Such
Stockholder has all requisite power and authority to enter into this Agreement
and to consummate the transactions contemplated hereby. In the case of each
Stockholder that is not a natural person, the execution and delivery of this
Agreement by such Stockholder and the consummation by such Stockholder of the
transactions contemplated hereby have been duly authorized by all necessary
action, if any, on the part of such Stockholder. This Agreement has been duly
executed and delivered by such Stockholder and, assuming that this Agreement
constitutes the valid and binding obligation of the other parties hereto,
constitutes a valid and binding obligation of such Stockholder, enforceable
against such Stockholder in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium and
similar laws affecting creditors' rights and remedies generally and to general
principles of equity.
(c) NO CONFLICTS. The execution and delivery of this Agreement
do not, and, subject to compliance with the HSR Act and appropriate filings
under securities laws (which each Stockholder agrees to make promptly), to the
extent applicable, the consummation of the transactions contemplated hereby and
compliance with the provisions hereof will not, conflict with, result in a
breach or violation of or default (with or without notice or lapse of time or
both) under, or give rise to a material obligation, a right of termination,
cancellation, or acceleration of any obligation or a loss of a material benefit
under, or require notice to or the consent of any person under any agreement,
instrument, undertaking, law, rule, regulation, judgment, order, injunction,
decree, determination or award binding on such Stockholder, other than as set
forth under the Stockholders' Agreement or any such conflicts, breaches,
violations, defaults, obligations, rights or losses that individually or in the
aggregate would not (i) impair the ability of such Stockholder to perform such
Stockholder's obligations under this Agreement or (ii) prevent or delay the
consummation of any of the transactions contemplated hereby.
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(d) STOCKHOLDERS' AGREEMENT. The Stockholders have delivered
or made available to Parent a true, correct and complete copy of the
Stockholders' Agreement, as amended to the date of this Agreement.
Section 4.2 REPRESENTATIONS AND WARRANTIES OF PARENT. Each of Parent
and Merger Sub hereby represents and warrants, jointly and severally, to each
Stockholder that:
(a) POWER AND AUTHORITY; EXECUTION AND DELIVERY. Each of
Parent and Merger Sub has all requisite corporate power and authority to enter
into this Agreement and to consummate the transactions contemplated hereby. The
execution and delivery of this Agreement by Parent and Merger Sub and the
consummation by Parent and Merger Sub of the transactions contemplated hereby
have been duly authorized by all necessary corporate action on the part of
Parent and Merger Sub. This Agreement has been duly executed and delivered by
Parent and Merger Sub and, assuming that this Agreement constitutes the valid
and binding obligation of each Stockholder, constitutes a valid and binding
obligation of Parent and Merger Sub, enforceable against Parent and Merger Sub
in accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally and to general principles of equity.
(b) NO CONFLICTS. The execution and delivery of this Agreement
do not, and, subject to compliance with the HSR Act and appropriate filings
under securities laws (which Parent and Merger Sub agree to make promptly), to
the extent applicable, the consummation of the transactions contemplated hereby
and compliance with the provisions hereof will not, conflict with, result in a
breach or violation of or default (with or without notice or lapse of time or
both) under, or give rise to a material obligation, right of termination,
cancellation, or acceleration of any obligation or a loss of a material benefit
under, or require notice to or the consent of any person under any agreement,
instrument, undertaking, law, rule, regulation, judgment, order, injunction,
decree, determination or award binding on Parent or Merger Sub, other than any
such conflicts, breaches, violations, defaults, obligations, rights or losses
that individually or in the aggregate would not (i) impair the ability of Parent
or Merger Sub to perform its obligations under this Agreement or (ii) prevent or
delay the consummation of any of the transactions contemplated hereby.
(c) SECURITIES LAW COMPLIANCE. The Options and the Subject
Shares to be acquired upon exercise of the Options are being and shall be
acquired by Parent without a view to public distribution thereof otherwise than
in compliance with the Securities Act and applicable state securities laws and
shall not be transferred or otherwise disposed of except in a transaction
registered or exempt from registration under the Securities Act and in
compliance with applicable state securities laws. Neither Parent nor Merger Sub
will effect any offer or sale of Subject Shares which would cause any
Stockholder to violate the registration requirements of the Securities Act of
1933, as amended, or the registration or qualification requirements of the
securities laws of any jurisdiction.
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ARTICLE V
CERTAIN COVENANTS
Section 5.1 CERTAIN COVENANTS OF STOCKHOLDERS.
(a) RESTRICTION ON TRANSFER OF SUBJECT SHARES, PROXIES AND
NONINTERFERENCE. No Stockholder shall, directly or indirectly: (A) except
pursuant to the terms of this Agreement and for the conversion of Subject Shares
at the Effective Time pursuant to the terms of the Merger Agreement, offer for
sale, sell, transfer, tender, pledge, encumber, assign or otherwise dispose of,
or enter into any contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of, any or all of such
Stockholder's Subject Shares; (B) except pursuant to the terms of this
Agreement, grant any proxies or powers of attorney, deposit any of such
Stockholder's Subject Shares into a voting trust or enter into a voting
agreement with respect to any of such Stockholder's Subject Shares; or (C) take
any action that would reasonably be expected to make any representation or
warranty contained herein untrue or incorrect or have the effect of impairing
the ability of such Stockholder to perform such Stockholder's obligations under
this Agreement or preventing or delaying the consummation of any of the
transactions contemplated hereby.
(b) NO SOLICITATION. Subject to Section 6.12, no Stockholder
shall take, or authorize or permit any of its officers, directors, employees,
agents or representatives (including any investment banker, financial advisor,
attorney or accountant) to take, any action that Company would be prohibited
from taking under the first sentence of Section 6.5(a) of the Merger Agreement
(disregarding for purposes of this Section 5.1(b) the proviso to such sentence).
(c) WAIVER OF APPRAISAL RIGHTS. Each Stockholder hereby waives
any rights of appraisal or rights to dissent from the Merger that such
Stockholder may have.
(d) NONEXERCISE OF RIGHTS OF FIRST REFUSAL. No Stockholder
shall exercise any purchase right or right of first refusal that it may have
with respect to any Shares of any other person in connection with any tender by
such other person of such Shares pursuant to the Offer.
(e) COOPERATION. Each Stockholder shall cooperate fully with
Parent and Company in connection with their respective reasonable best efforts
to fulfill the conditions to the Merger set forth in Article VII of the Merger
Agreement.
ARTICLE VI
MISCELLANEOUS
Section 6.1 FEES AND EXPENSES. Each party hereto shall pay its own
expenses incident to preparing for, entering into and carrying out this
Agreement and the consummation of the transactions contemplated hereby.
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Section 6.2 AMENDMENT; TERMINATION. This Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties
hereto. This Agreement shall terminate immediately upon the earlier of (i) the
Effective Time and (ii) the date on which the Option Period expires (or, if
later, the date on which the last Option Closing occurs). In addition, this
Agreement may be terminated at any time by mutual written consent of Parent and
Stockholders representing a majority of the Subject Shares subject to this
Agreement. In the event of termination of this Agreement pursuant to this
Section 6.2, this Agreement shall become null and void and of no effect with no
liability on the part of any party hereto and all proxies granted hereby shall
be automatically revoked; provided, however, that no such termination shall
relieve any party hereto from any liability for any breach of this Agreement
occurring prior to such termination, and provided further that the
representations and warranties set forth in Sections 4.1 and 4.2 and covenants
set forth in Section 6.1 shall survive the termination of this Agreement.
Section 6.3 EXTENSION; WAIVER. Any agreement on the part of a party to
waive any provision of this Agreement, or to extend the time for any performance
hereunder, shall be valid only if set forth in an instrument in writing signed
on behalf of such party. The failure of any party to this Agreement to assert
any of its rights under this Agreement or otherwise shall not constitute a
waiver of such rights.
Section 6.4 ENTIRE AGREEMENT; NO THIRD-PARTY BENEFICIARIES. This
Agreement constitutes the entire agreement, and supersedes all prior agreements
and understandings, both written and oral, among the parties with respect to the
subject matter of this Agreement, and is not intended to confer upon any person
other than the parties any rights or remedies.
Section 6.5 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, regardless of
the laws that might otherwise govern under applicable principles of conflict of
laws thereof.
Section 6.6 NOTICES. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally, or sent by overnight courier (providing proof of
delivery), in the case of the Stockholders, to the address set forth on Schedule
A hereto with a copy (which shall not constitute notice) to Xxxx, Weiss,
Rifkind, Xxxxxxx & Xxxxxxxx, 0000 Xxxxxx xx xxx Xxxxxxxx, Xxx Xxxx, Xxx Xxxx
00000-0000, Attention: Xxxxx X. Xxxxxxxxx, Esq., Telecopy: (212-757-3990, or, in
the case of Parent, to the address set forth below (or, in each case, at such
other address as shall be specified by like notice).
Louisiana-Pacific Corporation
000 X.X. Xxxxx Xxxxxx, #0000
Xxxxxxxx, Xxxxxx 00000
Attention: Xx. Xxxx Xxxxx
Telecopy: (000) 000-0000
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with a copy (which shall not constitute notice) to:
Xxxxx, Day, Xxxxxx & Xxxxx
32nd Floor
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Xxxx X. Xxxxxx, Esq.
Telecopy: (000) 000-0000
Section 6.7 ASSIGNMENT. Neither this Agreement nor any of the rights,
interests, or obligations under this Agreement may be assigned or delegated, in
whole or in part, by operation of law or otherwise, by any Stockholder without
the prior written consent of Parent, and any such assignment or delegation that
is not consented to shall be null and void. This Agreement, together with any
rights, interests, or obligations of Parent hereunder, may be assigned or
delegated, in whole or in part, by Parent without the consent of or any action
by any Stockholder upon notice by Parent to each Stockholder affected thereby as
herein provided. Subject to the preceding sentence, this Agreement shall be
binding upon, inure to the benefit of, and be enforceable by, the parties and
their respective successors and assigns (including without limitation any person
to whom any Subject Shares are sold, transferred or assigned).
Section 6.8 FURTHER ASSURANCES. Each Stockholder shall execute and
deliver such other documents and instruments and take such further actions as
may be necessary or appropriate or as may be reasonably requested by Parent in
order to ensure that Parent receives the full benefit of this Agreement. Parent
and Merger Sub shall not amend the Merger Agreement to increase the Merger
Consideration without the prior written consent of Stockholders representing a
majority of the Subject Shares subject to this Agreement.
Section 6.9 ENFORCEMENT. Irreparable damage would occur in the event
that any of the provisions of this Agreement were not performed in accordance
with their specific terms or were otherwise breached. Accordingly, the parties
shall be entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this Agreement
in the Court of Chancery in and for New Castle County in the State of Delaware
(or, if such court lacks subject matter jurisdiction, any appropriate state or
federal court in New Castle County in the State of Delaware), this being in
addition to any other remedy to which they are entitled at law or in equity.
Each of the parties hereto (i) shall submit itself to the personal jurisdiction
of the Court of Chancery in and for New Castle County in the State of Delaware
(or, if such court lacks subject matter jurisdiction, any appropriate state or
federal court in New Castle County in the State of Delaware) in the event any
dispute arises out of this Agreement or any of the transactions contemplated
hereby, (ii) shall not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court, and (iii) shall not bring
any action relating to this Agreement or any of the transactions contemplated
hereby in any court other than the Court of Chancery in and for New Castle
County in the State of Delaware (or, if such court lacks subject matter
jurisdiction, any appropriate state or federal court in New Castle County in the
State of Delaware).
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Section 6.10 SEVERABILITY. Whenever possible, each provision or portion
of any provision of this Agreement shall be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability shall not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement shall be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
Section 6.11 COUNTERPARTS. This Agreement may be executed in one or
more counterparts, all of which shall be considered one and the same instrument
and shall become effective when one or more counterparts have been signed by
each party and delivered to the other parties.
Section 6.12 STOCKHOLDER CAPACITY. By executing this Agreement, no
person (including any officer, director, employee, partner, principal, agent or
affiliate of such person) who is or becomes during the term hereof a director,
officer, agent or financial advisor of Company makes any agreement or
understanding in his or her capacity as such officer, director, agent or
financial advisor. Each Stockholder signs solely in his or her capacity as the
record holder and beneficial owner, respectively, of the number of Subject
Shares set forth opposite his or her name on Schedule A hereto, respectively,
and nothing herein shall limit or affect any actions taken by a Stockholder in
his or her capacity as an officer, director, agent or financial advisor of
Company.
[signature page follows]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed as of the day and year first written above.
LOUISIANA-PACIFIC CORPORATION
By: /S/ XXXX X. XXXXX
--------------------------------
Name: Xxxx X. Xxxxx
Title: Chief Executive Officer
STRIPER ACQUISITION, INC.
By: /S/ XXXX X. XXXXX
--------------------------------
Name: Xxxx X. Xxxxx
Title: President
STOCKHOLDERS:
KOHLBERG ASSOCIATES, L.P.
By: KOHLBERG & KOHLBERG, L.L.C.
By: /S/ XXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
KABT ACQUISITION COMPANY, L.P.
By: KOHLBERG ASSOCIATES, L.P.
By: KOHLBERG & KOHLBERG, L.L.C.
By: /S/ XXXXXX X. XXXXXXX
--------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
/S/ XXXXXX X. XXXXXX
--------------------------------
XXXXXX X. XXXXXX
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SCHEDULE A
Total Number of Shares
NAME AND ADDRESS OF STOCKHOLDER OF COMMON STOCK OWNED
------------------------------- ------------------------
Kohlberg Associates, L.P. 7,820 Shares
c/o Kohlberg & Co.
000 Xxxxx Xxxxxx
Xx. Xxxxx, XX 00000
KABT Acquisition Company, L.P. 4,899,776 Shares
c/o Kohlberg & Co.
000 Xxxxx Xxxxxx
Xx. Xxxxx, XX 00000
Xxxxxx X. Xxxxxx 44,958 Shares
0000 Xxxxx Xxxx, Xxxxxxxxx 0X 710,000 Options to
Xxxx Xxxxx, Xxxxxxx 00000 Purchase Shares
A-1
