{"id":43509,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/purchase-agreement-domtar-inc-georgia-pacific-corp-nekoosa.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"purchase-agreement-domtar-inc-georgia-pacific-corp-nekoosa","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/purchase-agreement-domtar-inc-georgia-pacific-corp-nekoosa.html","title":{"rendered":"Purchase Agreement &#8211; Domtar Inc., Georgia-Pacific Corp., Nekoosa Papers Inc. and Georgia-Pacific Resins Inc."},"content":{"rendered":"<pre>                      AMENDMENT NO. 1 TO PURCHASE AGREEMENT\n\n     AMENDMENT NO. 1, dated as of August 3, 2001 (this \"Amendment\"), by and\namong Domtar Inc., a Canadian corporation (\"Purchaser\"), Georgia-Pacific\n                                            ---------\nCorporation, a Georgia corporation (\"Parent\"), Nekoosa Papers Inc., a Wisconsin\n                                     ------\ncorporation (\"NPI\"), and Georgia-Pacific Resins, Inc., a Delaware corporation\n              ---\n(\"G-P Resins\"), to the Purchase Agreement, dated as of June 1, 2001 (as amended\n  ----------\nby the Amendment, the \"Agreement\"), by and among Purchaser, Parent, NPI and G-P\nResins. Capitalized terms used but not defined herein shall have the meanings\ngiven to such terms in the Agreement, and all references to Articles and\nSections herein are references to Articles and Sections of the Agreement.\n\n     In consideration of the premises and the mutual promises herein made, and\nin consideration of the agreements herein contained, the parties, intending to\nbe legally bound hereby, agree as follows:\n\n     1. Amendment to Section 1.1(a)(v). Section 1.1(a)(v) is hereby amended by\n        ------------------------------\ndeleting the reference to \"4,000\" and replacing it with \"500\".\n\n     2. Amendment to Section 1.5(a). Paragraph (a) of Section 1.5 is hereby\n        ---------------------------\namended to read in its entirety as follows:\n\n     \"(a) The aggregate purchase price for the Acquired Assets and the Shares\n(the \"Purchase Price\") shall be the sum of (x) $1,650,000,000, plus (y) $240,625\n      --------------                        -                  ----\nfor each day, if any, between the date of the Measuring Time (as defined in\nSection 2.3(a)) through the Closing Date (excluding the Measuring Time date and\nthe Closing Date). By way of illustration, if the Closing Date is August 7,\n2001, the Purchase Price will be $1,650,721,875. The Purchase Price shall be\npayable in the manner described in Section 2.2(b)(i) and shall be subject to\nadjustment as set forth in Section 2.3.\"\n\n     3. Amendment to Section 2.1. Section 2.1 is hereby amended to read in its\n        ------------------------\nentirety as follows:\n\n     \"2.1 Closing Date. Subject to the fulfillment or waiver of the conditions\n          ------------\nset forth in Article VI, the closing of the transactions contemplated by this\nAgreement (the \"Closing\") shall take place at the New York offices of Debevoise\n                -------\n&amp; Plimpton, at 10:00 a.m., New York City time, on Tuesday, August 7, 2001 (the\n\"Target Closing Date\"). If such conditions have not been fulfilled or waived as\n -------------------\nof the Target Closing Date, then, without limiting the rights of Parent and\nPurchaser under Section 7.1(a)(v), the parties will discuss in good faith the\nscheduling of a new date for the Closing on or before August 15, 2001, such date\nto represent the first Business Day when it will be reasonably practicable to\nhold the Closing following the last to be fulfilled or waived of the\n\n\n\nconditions set forth in Article VI. The date on which the Closing shall occur is\nherein referred to as the \"Closing Date.\"\n                           ------------\n\n     4. Amendment to Section 2.3(a). Section 2.3(a) is hereby amended to read in\n        ---------------------------\nits entirety as follows:\n\n     \"Within 60 days following the Closing Date, Parent will prepare and\ndeliver, or cause to be prepared and delivered to Purchaser, a working capital\nstatement for the Acquired Assets and the Assumed Liabilities as of the\nMeasuring Time (as defined in the next sentence) (the \"Closing Working Capital\n                                                       -----------------------\nStatement\"), audited by Arthur Andersen, independent accountants for Parent,\n---------\nsetting forth an itemized calculation of the current assets included in the\nAcquired Assets or owned by the Transferred Subsidiaries as of the Measuring\nTime and the current liabilities included in the Assumed Liabilities as of the\nMeasuring Time (including for this purpose liabilities of the Transferred\nSubsidiaries for Taxes (other than Combined Income Taxes)). The \"Measuring Time\"\n                                                                 --------------\nwill be 11:59 p.m. Eastern Daylight Time on August 3, 2001, provided that if the\n                                                            --------\nClosing Date does not occur on the Target Closing Date, the Measuring Time will\nbe a date and time on or prior to the Closing Date, as shall be reasonably\nagreed upon by Parent and Purchaser. The excess of such current assets over such\ncurrent liabilities, as reflected on the Working Capital Statement, will be\nreferred to herein as the \"Closing Working Capital\". The Closing Working Capital\n                           -----------------------\nStatement shall be prepared in accordance with U.S. GAAP and on a basis\nconsistent with the U.S. GAAP principles, procedures and elections used in the\nFinancial Statements, as modified by the principles, procedures and elections\nset forth in Exhibit B hereto (the \"Working Capital Principles\").\n                                    --------------------------\nNotwithstanding the foregoing, (i) the amount of the trade accounts receivable\n                                -\nfor the purposes of determining the Closing Working Capital shall be deemed to\nbe $120,000,000 and (ii) the Closing Working Capital Statement will not reflect\n                     --\nany accrual for additional matching contributions within the meaning of the\napplicable Parent 401(k) Plan.\"\n\n     5. Addition of Section 2.5. A new Section 2.5 is hereby added to read in\n        -----------------------\nits entirety as follows:\n\n     \"2.5 Reimbursement of Certain Amounts. If, during the period between the\n          --------------------------------\nMeasuring Time and the Closing Date, a Seller (i) discharges any liability,\nobligation or commitment that would constitute an Assumed Liability hereunder if\nit were not discharged as of the Closing Date or (ii) pays any amount for or\nwith respect to any asset that constitutes an Acquired Asset, Purchaser will\nreimburse such Seller for the amount of the liability, obligation or commitment\ndischarged or the amount of the payment made. Similarly, if, during the period\nbetween the Measuring Time and the Closing Date, a Seller sells, transfers or\ndisposes of any asset (including, without limitation, Inventory) that would\nconstitute an Acquired Asset hereunder if held by a Seller as of the Closing\nDate or receives payment in respect of any service (other than for transition\nservices under the Human Resources Agreement) provided by the Carve Out Business\nduring the\n\n\n\nperiod between the Measuring Time and the Closing Date, such Seller\nwill deliver to Purchaser all proceeds received by such Seller from such sale,\ntransfer or disposition or the provision of a service. This Section 2.5 will not\nrelieve Sellers and their Affiliates from any of their obligations under Section\n5.1 (Conduct of the Carve Out Business). Any amounts owed by Purchaser to\nSellers or by Sellers to Purchaser under this Section 2.5 will be made on the\ndate for adjustment of the Purchase Price under Section 2.3(d) (together with\ninterest on such amounts in accordance with Section 2.3(d)), even if no\nadjustment is required to be made to the Purchase Price under Section 2.3(d) on\nsuch date. Each of the Sellers and Purchaser agrees that, notwithstanding\nanything to contrary in this Section 2.5, no party shall be entitled to any\nbenefit or suffer any detriment under this Section 2.5 to the extent that such\nbenefit or detriment is fully accounted for in the Closing Working Capital\nStatement or is the subject of a payment made pursuant to the Human Resources\nAgreement.\"\n\n     6. Amendment to Section 5.4. Sections 5.4(a) and 5.4(b) are hereby amended\n        ------------------------\nto read in their entirety as follows:\n\n        (a) Creation and Establishment of the Purchaser IT Environment. Parent\n            ----------------------------------------------------------\nand its Affiliates will take all actions reasonably necessary to create and\nestablish for the benefit of Purchaser prior to the Closing Date an information\ntechnology environment having the same functionality in all material respects as\nthe information technology environment used by Parent and its Affiliates in the\nconduct of the Carve Out Business, including Computer Hardware (with the same\nhardware platforms, adequately sized but not necessarily the same model number),\nComputer Software (with databases and current and historical data (subject to\nsuch redaction as (x) may be required by Applicable Law or (y) may be necessary\n                   -                                        -\nto remove information (i) that relates to operations of Parent, other than the\n                       -\nCarve Out Business, or (ii) that relates to the business activities of Parent\n                        --\nand its Affiliates that are the subject of the Supply and Distribution Agreement\nor the Wood Fiber Supply Agreements)), and customer service call center (such\nenvironment, excluding the Mill Technology, the \"Purchaser IT Environment\").\n                                                 ------------------------\nParent shall support the Purchaser IT Environment to the extent set forth in the\nIT Support Services Agreement. Except as provided in Sections 5.4(b) and 5.4(c)\nbelow, the hardware platforms constituting part of the Purchaser IT Environment\nshall be physically separate from, but connected to a common Direct Access\nStorage Device frame with, the hardware platforms of Parent. It is anticipated\nthat the SAP, Manugistics, Indus and TOPS components of the Purchaser IT\nEnvironment (each such software being described in greater detail in the IT\nSupport Services Agreement) will each be located on separate hardware platforms.\nPurchaser shall become the owner of the hardware platforms that are part of the\nPurchaser IT Environment (other than the hardware platforms associated with the\nSupport Services described in Category A and Category D (except to the extent\nrelated to local area network hardware purchased by Parent for Purchaser under\nthe IT Support Services Agreement)) when the platforms are no longer being\nmaintained under the IT Support Services Agreement.\n\n\n\n          (b) Software Resident on Parent's Platform. Subject to the terms of\n              --------------------------------------\nthis Section 5.4(b), Purchaser agrees that the Infinium Software (as defined in\nthe IT Support Services Agreement), which constitutes part of the Purchaser IT\nEnvironment, will be operated on a separate logical partition on Parent's\nhardware platforms rather than on a physically separate platform. In the case of\nthe Infinium Software, such operation on Parent's hardware platform will be\nsubject to Purchaser's reasonable satisfaction prior to the Closing that\nadequate security procedures will be implemented to protect the confidentiality\nof all information relating to Purchaser's business and operations. The Infinium\nSoftware will remain on Parent's platforms until the 18 month anniversary of the\nClosing Date. Parent will assist Purchaser, at Purchaser's expense, in migrating\ndata associated with the Infinium Software to a platform to be designated by\nPurchaser no later than the 18 month anniversary of the Closing.\n\n     7.   Addition of Section 5.4 (j). A new Section 5.4(j) is hereby added to\n          ---------------------------\nread in its entirety as follows:\n\n          (j) Post-Closing Activities. It is understood and agreed that\n              -----------------------\nPurchaser's acknowledgement of the satisfaction of the closing condition in\nSection 6.1(d) shall not limit Purchaser's post-Closing right to verify Parent's\ncompliance with this Section 5.4 or any of Purchaser's rights and remedies\nrelated thereto. Following the Closing, Parent agrees to cooperate with any\nreasonable requests of Purchaser, consistent with Section 5.25, related to the\nverification of Parent's obligations under this Section 5.4.\n\n     8.   Amendment to Section 5.6. Section 5.6 is hereby amended to read in its\n          ------------------------\nentirety as follows:\n\n     \"5.6 Ancillary Documents. At the Closing, Parent and Purchaser or their\n          -------------------\nrespective Affiliates shall enter into (a) an IT Support Services Agreement,\n                                        -\nsubstantially in the form of Exhibit D, (b) Trademark License Agreements,\n                             ---------   -\nsubstantially in the forms of Exhibits F-1, F-2, F-3 and F-4, (c) a Supply and\n                              ------------  ---  ---     ---   -\nDistribution Agreement, substantially in the form of Exhibit G, (d) a\n                                                     ---------   -\nNon-Competition Agreement, substantially in the form of Exhibit H, (e) a Pulp\n                                                        ---------   -\nSupply Agreement, substantially in the form of Exhibit I, (f) Wood Fiber Supply\n                                               ---------   -\nAgreements, substantially in the forms of Exhibits J-1 and J-2, (g) a Shared\n                                          ------------     ---   -\nServices Agreement, substantially in the form of Exhibit L, (h) Operating\n                                                 ---------   -\nAgreements, substantially in the forms of Exhibit M-1 and M-2, (i) Escrow\n                                          -----------     ---\nAgreements, substantially in the forms of Exhibit N-1 and N-2, (j) a Transition\n                                          -----------     ---\nServices Agreement, substantially in the form of Exhibit O, (k) a Railroad\n                                                 ---------\nServices Agreement, substantially in the form of Exhibit P, and (l) a Crude Tall\n                                                 ---------\nOil Purchase Agreement, substantially in the form of Exhibit Q.\"\n                                                     ---------\n\n     9.   Amendment to Section 5.7. Section 5.7 is hereby amended by deleting\n          ------------------------\nthe references to \"Closing Date\" and replacing them with the words \"Measuring\nTime\".\n\n\n\n\n     10.   Amendment of Section 5.21. Section 5.21 is hereby amended to read in\n           ---------------------------------------\nits entirety as follows:\n\n     \"5.21 Inventory. As of the Closing Date, (i) Parent will deliver no less\n           ---------                           -\nthan 5,000 tons and no more than 20,000 tons of Woodland pulp Inventory (other\nthan export pulp) in such locations as the pulp may exist on the Closing Date,\nit being understood that (A) at least 2,500 tons will be located at the Woodland\n                          -\nMill and the remainder will be located in warehouses in the U.S. and (B) the\n                                                                      -\nminimum Inventory requirement will be decreased in the event that between the\nMeasuring Time and the Closing Date, Domtar requires the Woodland Mill to\noperate other than at historical production levels and (ii) Parent will deliver\n                                                        --\n500 tons of Woodland export pulp Inventory in Flushing, Netherlands.\"\n\n     11.   Addition of Section 5.25. A new Section 5.25 is hereby added to read\n           ------------------------\nin its entirety as follows:\n\n     \"5.25 Further Assurances. Following the Closing, each of Purchaser and\n           ------------------\nSellers shall, and shall cause each of their Affiliates to, from time to time,\nexecute and deliver such additional instruments, documents, conveyances or\nassurances and take such other actions (it being understood that any such\ninstrument, document, conveyance, assurance or action shall not provide for any\nrepresentations or warranties or any obligations or liabilities that are not\notherwise expressly provided for in this Agreement) as shall be reasonably\nnecessary, or otherwise reasonably requested by the other party, to confirm and\nassure the rights and obligations provided for in this Agreement and in the\nAncillary Documents and render effective the consummation of the transactions\ncontemplated hereby and thereby.\"\n\n     12. Amendment to Section 6.1(d). Section 6.1(d) is hereby amended by adding\n         ---------------------------\nthe following sentences at the end of such section: \"In the event the Purchaser\nIT Environment \"goes live\" at the times specified in final sentence of this\nSection 6.1(d), Purchaser will notify Parent no later than 8:00 a.m. Eastern\nDaylight Time on August 6, 2001 (the \"Notification Deadline\") as to whether the\n                                      ---------------------\nclosing condition in this Section 6.1(d) has been satisfied, it being understood\nthat if any \"go live\" time is delayed, up to a maximum delay of 24 hours,\nPurchaser shall nonetheless provide such notice to Parent, but the\naforementioned Notification Deadline shall be extended by an amount of time\nequal to the duration of the delay and, in the event that more than one \"go\nlive\" time is delayed, by an amount of time equal to the duration of the longest\nsuch delay. If any or all of the \"go live\" times are delayed by more than 24\nhours, Parent and Purchaser will reasonably agree on a new Notification\nDeadline. The \"go live\" times are as follows: (i) Indus, 6:00 a.m. Eastern\nDaylight Time on August 5, 2001, (ii) SAP, 12:00 p.m. Eastern Daylight Time,\nAugust 4, 2001, (iii) Manugistics, 12:00 p.m. Eastern Daylight Time, August 4,\n2001, (iv) TOPS, 12:00 p.m. Eastern Daylight Time, August 4, 2001, (v) EDI, 7:00\na.m. Eastern Daylight Time, August 4, 2001, (vi) HR, 12:00 p.m. Eastern\n\n\n\nDaylight Time, August 4, 2001, (vii) Infinium AP and AR, 5:00 p.m. Eastern\nDaylight Time, August 4, 2001, (viii) BW, 12:00 p.m. Eastern Daylight Time,\nAugust 5, 2001, (ix) Cost Suite PSR, 4:00 p.m. Eastern Daylight Time, August 4,\n2001, and (x) and all other systems other than those agreed by the parties\nfollowing the date hereof as permitted contingencies, 12:00 p.m. Eastern\nDaylight Time, August 5, 2001.\n\n     13. Amendment to Section 7.1(a)(v). Clause (v) of Section 7.1(a) is hereby\n         ------------------------------\namended to read in its entirety as follows:\n\n     \"(v) by Parent or Purchaser if the Closing does not occur on or prior to\nAugust 7, 2001, provided that either Parent or Purchaser shall be entitled to\n                --------\nextend such date to no later than August 15, 2001 (but only if it has complied\nwith its obligations under Section 5.3(a)) if necessary to satisfy the Closing\ncondition set forth in Section 6.1(d); further provided that either Parent or\n                                       ------- --------\nPurchaser shall be entitled to re-extend such date to no later than August 31,\n2001 (but only if it has complied with its obligations under Section 5.3(a)) if\nnecessary to satisfy the Closing condition set forth in Section 6.1(d).\"\n\n     14. Deletion of Section 9.8. Section 9.8 is hereby deleted in its entirety.\n         -----------------------\n\n     15. Amendment to Section 11.1. Section 11.1 is hereby amended by adding the\n         -------------------------\nfollowing definitions:\n\n     \"Measuring Time\" has the meaning set forth in Section 2.3(a).\n      --------------\n\n     \"Target Closing Date\" has the meaning set forth in Section 2.1.\n      -------------------\n\n     Section 11.1 is hereby further amended by replacing the following\ndefinition in its entirety:\n\n     \"Excluded Inventory\" means (i) Inventory of finished goods paper products\n      ------------------         -\nallocated to the Georgia-Pacific Office Products division of Parent and held in\npublic warehouses as of the Closing Date (other than Mill overflow warehouses),\n(ii) Inventory of finished goods paper products allocated to the Xerox Paper\n --\nGroup division of Parent that is listed on Exhibit A-2 to the Supply and\nDistribution Agreement and held in public warehouses (other than Mill overflow\nwarehouses) as of the Closing Date and (iii) Inventories of Woodland pulp\n                                        ---\nproducts (other than export) and Inventories of Woodland export pulp products in\nexcess of the amounts to be conveyed to Purchaser in accordance with Section\n5.21.\n\n     16. Financial Statements.\n         --------------------\n\n     (a) The unaudited balance sheet of the Carve Out Business as of March 31,\n2001, and the related unaudited statements of income, Parent's investment and\ncash flow for the three months ended March 31, 2001, together with all related\nnotes thereto,\n\n\n\ndelivered to Purchaser on July 26, 2001 and attached to this Amendment as Annex\nB, (i) shall for all purposes under the Agreement be deemed to be the \"Interim\n    -\nFinancial Statements\" and (ii) shall replace in their entirety the Interim\n                           --\nFinancial Statements and the Side Letter delivered to Purchaser on June 1, 2001.\n\n     (b) The balance sheets of the Carve Out Business as of January 1, 2000 and\nDecember 30, 2000, and the related statements of income, Parent's investment and\ncash flow for each of the three years in the three-year period ended December\n30, 2000, together with all related notes thereto and the unqualified audit\nreport of Arthur Andersen on such financial statements, that incorporate any\nrevisions made to the Year-End Financial Statements in connection with the\naudit, delivered to Purchaser on July 26, 2001 and attached to this Amendment as\nAnnex C, (i) shall for all purposes under the Agreement be deemed to be the\n          -\n\"Audited Financial Statements\" and (ii) shall replace in their entirety the\n                                    --\nYear-End Financial Statements and the Side Letter delivered to Purchaser on June\n1, 2001. The Audited Financial Statements shall be deemed timely delivered by\nParent pursuant to Section 5.14(a) of the Purchase Agreement.\n\n     17. Exhibits. The forms of the Ancillary Documents attached to this\n         --------\nAmendment as Exhibits A through Q shall replace Exhibits A through N to the\nPurchase Agreement in their entirety. References to \"Closing\" will be changed to\n\"Measuring Time\" in Item II of Exhibit C.\n\n     18. Confirmation of Agreement. Other than as expressly modified pursuant to\n         -------------------------\nthis Amendment, all provisions of the Agreement remain unmodified and in full\nforce and effect. This Amendment will be governed by all of the General\nProvisions in Article X of the Agreement.\n\n\n\n     IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of\nthe first date above written.\n\nGEORGIA-PACIFIC CORPORATION\n\n\nBy  \/s\/ James F. Kelley\n  -------------------------------\nName:   James F. Kelley\nTitle:  Executive Vice President\n          and General Counsel\n\n\nNEKOOSA PAPERS INC.\n\n\nBy  \/s\/ James F. Kelley\n  -------------------------------\nName:   James F. Kelley\nTitle:  Executive Vice President\n          and General Counsel\n\n\nGEORGIA-PACIFIC RESINS, INC.\n\n\nBy  \/s\/ James F. Kelley\n  -------------------------------\nName:   James F. Kelley\nTitle:  Executive Vice President\n          and General Counsel\n\n\nDOMTAR INC.\n\n\nBy  \/s\/ Christian Dube\n  -------------------------------\nName:   Christian Dube\nTitle:  SVP-Chief Financial Officer\n\n\nBy  \/s\/ Gilles Pharand\n  -------------------------------\nName:   Gilles Pharand\nTitle:  SVP-GC and Secretary\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[7633],"corporate_contracts_industries":[9484],"corporate_contracts_types":[9623,9622],"class_list":["post-43509","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-georgia-pacific-corp","corporate_contracts_industries-materials__wood","corporate_contracts_types-planning__asset","corporate_contracts_types-planning"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43509","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43509"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43509"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43509"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43509"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}