Exhibit 10.1


 


IN THE UNITED STATES DISTRICT COURT


FOR THE EASTERN DISTRICT OF PENNSYLVANIA


 


	
   

  	
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  IN RE: OSB ANTITRUST LITIGATION

  	
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  Master File No. 06-CV-826-PD

  
	
   

  	
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  Hon. Paul S. Diamond

  
	
  THIS DOCUMENT RELATES TO:

  	
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  ALL DIRECT PURCHASER ACTIONS

  	
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SETTLEMENT AGREEMENT FOR LOUISIANA-PACIFIC
CORPORATION


 


This Settlement Agreement (“Settlement Agreement”) is made and entered
into this tenth day of July (the “Execution Date”), by and between
Louisiana-Pacific Corporation, (“LP” as defined in Paragraph 2 below) and
Plaintiff Class representatives Sawbell Lumber Co., Columbare Inc.,
Norwood Sash & Door Manufacturing Co., Frontier Lumber Co., Inc.,
Grubb Lumber Co., Inc. and New Deal Lumber & Millwork Co., Inc.
(collectively, “Plaintiffs”), both individually
and on behalf of a class of purchasers of Oriented Strand Board (“OSB”) in
the United States directly from any Defendants named in the Third Consolidated
Amended Complaint in the above-captioned action (the “Class Action”), or
their subsidiaries or affiliates:


 


WHEREAS, there is pending in the United States District Court for the
Eastern District of Pennsylvania, the Class Action, In re OSB Antitrust Litigation, Master File  No. 06-CV-00826
(PSD), brought on behalf of direct purchasers of OSB, in which Plaintiffs have
alleged a violation of law, including the existence of an unlawful conspiracy to fix, raise, maintain, or
stabilize the prices of OSB in the United States in violation of section
1 of the Sherman Antitrust Act;


 


WHEREAS, LP vigorously denies the allegations in the Third Consolidated
Amended Complaint, including allegations that it engaged in any wrongdoing or
in conduct that violated 


 

















 


the antitrust laws, but has agreed to enter into this Settlement Agreement solely to
avoid the further expense, risk, inconvenience, and the distraction of
burdensome and protracted litigation;


 


WHEREAS, Class Counsel have concluded, after due investigation and
after carefully considering the relevant
circumstances, including, without limitation, the claims asserted in the
Third Consolidated Amended Complaint filed in the Action, the legal and factual
defenses thereto and the applicable law, that it would be in the best interests
of the Plaintiffs and the Class to enter into this Agreement in order to
avoid the uncertainties of litigation and to assure that the benefits reflected
herein are obtained for the Plaintiffs and all Class Members, and further,
Class Counsel consider the settlement set forth herein to be fair,
reasonable and adequate and in the best interests of Plaintiffs and all members
of the Class;


 


WHEREAS, arm’s-length settlement negotiations have taken place between Class Counsel
and counsel for LP, and this Agreement, including its exhibits and the
Confidential Letter Agreements, which embodies all of the terms and conditions
of the settlement between LP and the
Plaintiffs and the Class, has been reached, subject to the approval of the
Court and Final Approval as provided herein;


 


NOW, THEREFORE, in consideration of the covenants, terms and releases
in this Settlement Agreement and for other good and valuable consideration, it
is by and among the undersigned agreed that the above-captioned case be settled, compromised and dismissed with
prejudice as to LP, without costs as to Plaintiffs, the Class or LP,
subject to the approval of the Court and the following terms and conditions:


 


A.                                    Definitions


 


The following terms, as used in this
Settlement Agreement, have the following meanings:


 


1.             “Action” means the actions
captioned In
re OSB Antitrust Litigation,
which are
currently pending in the District Court for the Eastern District of
Pennsylvania, and including all 


 


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actions
transferred for coordination, and all actions pending such transfer (including,
but not limited to, “tag-along” actions).


 


2.             “LP” means Louisiana-Pacific
Corporation and its current or former
officers, directors, employees, subsidiaries, affiliates, predecessors, and
successors.


 


3.             “Claim(s)” shall mean any and all
actions, suits, claims, demands, assertions, or causes of action, which are
directly related to the subject matter of the Action.  A Claim expressly includes a demand to
compromise or settle an alleged cause of action related to the subject matter
of the Action that is made outside the context of litigation or this Action.


 


4.             “Claims
Administrator” means Complete Claims Solutions, LLC, 5210 Hood Road, Palm Beach
Gardens, FL 33418.


 


5.             “Class” means the class defined in
Paragraph 34.


 


6.             “Class Counsel”
shall refer to the law firms of Cohen, Milstein, Hausfeld &
Toll, P.L.L.C., 1100 New York Avenue N.W., Washington, D.C. 20005 and Spector
Roseman & Kodroff, P.C., 1818 Market Street, Suite 2500,
Philadelphia, PA 19103.


 


7.             “Class Member”
means each member of the Class who
has not timely elected to be excluded from the Class.


 


8.             “Class Period” means the
period from and including June 1, 2002 through February 24, 2006.


 


9.             “Class Release
Period” means the period from and including June 1, 2002 up to and
including the date that summary notice of the settlement is first published.


 


10.           “Class Representatives” or “Plaintiffs”
means Sawbell Lumber Co., Columbare Inc., Norwood Sash & Door
Manufacturing Co., Frontier Lumber Co., Inc., Grubb Lumber Co., Inc. and New Deal Lumber & Millwork Co., Inc.


 


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11.           “Confidential Letter Agreements”
means the confidential letter agreements between Class Counsel and LP
dated July [    ], 2008, which are incorporated herein
by reference.


 


12.           “Discovery
Materials” means any information or material provided under the
discovery provisions of this Settlement Agreement, including, but not limited
to any documents, notes, depositions, deposition transcripts, interviews,
interview transcripts, affidavits, declarations and/or videos.


 


13.           “Court” means the U.S. District Court
for the Eastern District of Pennsylvania.


 


14.           “Defendant” shall mean any defendant
named in the Action.


 


15.           “Document” is defined to be
synonymous in meaning and equal in scope to
the usage of this term in Fed. R. Civ. P. 34(a), including, without limitation,
electronic or computerized data compilations.  A draft or non-identical copy is a separate
document within the meaning of this term.


 


16.           “Effective Date” means the date on which
all of the events identified in Paragraph 40 have occurred, and means the date
on which the Settlement Agreement becomes final.


 


17.           “Escrow Account” means the account,
established by Class Counsel and administered
in accordance with the terms of this Settlement Agreement, for receipt of
the Settlement Amount, paid by LP as contemplated by this Settlement Agreement.


 


18.           “Escrow
Agent” means SunTrust Bank as set
forth in the form of the Escrow Agreement attached as Exhibit A
hereto.


 


19.           “Escrow
Agreement” means the form of Escrow Agreement attached as Exhibit A
hereto.


 


20.           “Execution
Date” shall mean the date of the
execution of this Settlement Agreement by counsel for all parties
thereto.


 


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21.           “Non-Settling
Defendant” means any Defendant in
this Action other than LP.


 


22.           “LP Opt-Out Settlement Account” means
an interest-bearing account that shall be created by the Escrow Agent on the
Effective Date and shall receive funds as set forth in Paragraph 50.  Except as specified herein, the Escrow Agent
shall maintain this account separately from any other accounts set forth in
this Settlement Agreement.


 


23.           “Notice
and Administration Costs” means the
fees and costs of the Claims Administration and the fees and costs
incurred to provide notice to the Class and to administer the settlement.


 


24.           “Opt
Out” means a person or entity that
would have been a member of the Class except for his, her, or its
timely and valid request for exclusion.


 


25.           “OSB” includes any Oriented Strand
Board structural panel product and means an engineered,
mat-formed structural panel product made of strands, flakes or wafers sliced
from wood logs and bonded under heat and pressure.  For purposes of this Agreement, “OSB” includes any structural panel product
manufactured or sold by LP that contains OSB, including, but not limited
to, commodity grade OSB and specialty OSB.


 


26.           “Payment for Attorneys’ Fees” means
the amount awarded by the Court to Class Counsel for attorneys’ fees,
costs and expenses.


 


27.           “Released Claims” is defined as in Paragraph 41.


 


28.           “Releasees”
shall refer jointly and severally, individually and collectively to
Louisiana-Pacific Corporation, its parents, subsidiaries, predecessors,
successors, heirs, executors, administrators, and assigns, and their past and
present officers, directors, employees and agents of each of the
foregoing.  Notwithstanding the
foregoing, “Releasees” does not include (i) any other defendant formerly
or currently named in the Action; (ii) any defendant 


 


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subsequently
added or joined in the Action; and/or (iii) any other alleged
co-conspirator of defendants in the Action, other than the Releasees.


 


29.           “Releasors” shall refer jointly and
severally, individually and collectively to Plaintiffs and Class Members,
their respective past and present parents, subsidiaries, and affiliates, and
the past and present officers, directors, employees, agents, parents, and
subsidiaries and the predecessors, successors, affiliates, heirs, executors,
administrators, and assigns of each of the foregoing.


 


30.           “Settlement Amount” means forty-four
million five hundred thousand United States dollars ($44,500,000 USD).


 


31.           “Settlement Fund” means the
Settlement Amount, minus any payments made in accordance with this
Settlement Agreement for costs, fees, or taxes including, but not limited to,
Notice and Administration Costs, Payment for Attorneys’ Fees and Tax
Expenses.  The Settlement Fund does not
include any amounts that are maintained in the LP Opt Out Settlement Account.


 


32.           “Taxes” means any sums due to be paid
to governmental taxing authorities from the Escrow Account, including taxes,
estimated taxes, interest and penalties.


 


33.           “Tax Expenses” means any and all
reasonable fees and costs due to be paid to tax preparers, tax consultants or
others for determining the tax liability of the Escrow Account, and otherwise
assisting Class Counsel in carrying out their responsibilities under this
Settlement Agreement.


 


B.                                    Stipulation to Class Certification


 


34.           By its Class Certification Order
of August 3, 2007, as amended on January 8, 2008, the Court found
that the requirements of the Federal Rules of Civil Procedure 23(a) and
23(b)(3) were satisfied in this case and certified the following class:


 


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All individuals and entities who purchased
OSB structural panel products in the United States directly from Defendants
during the Class Period from June 1, 2002 through February 24,
2006 (the “Class”).  Excluded from the Class are
Defendants and subsidiaries and affiliates of Defendants and all federal, state
or local governmental entities.


 


35.           Subsequently, notice was given to the Class, and
individuals and entities within the Class, as defined, have been given the
opportunity to request exclusion from the Class.  Those who validly request exclusion from the Class are
the Opt-Outs.


 


C.                                    Approval of
this Settlement Agreement and Dismissal of Claims


 


36.           Class Counsel and counsel for LP agree to use
their reasonable best efforts to effectuate this Settlement Agreement,
including but not limited to, cooperating in
promptly seeking both preliminary and final approval of this Agreement
(including the giving of class notice under Federal Rules of Civil
Procedure 23(c) and (e)), and securing the
prompt, complete, and final dismissal with prejudice of the Action as to
LP only.


 


37.           Within twenty (20) business days after the execution
of this Settlement Agreement, Plaintiffs shall submit to the Court a motion, to
be joined in by LP, for preliminary approval of this Agreement, authorization
to disseminate notice to the Class within thirty (30) days of preliminary
court approval of the settlement, including a statement that, subject to the
approval of the Court, notice shall be by first class mail and by publication
in LBM Journal,  and for a stay of all proceedings in
the Action against LP (the “Motion”). 
The Motion shall include, as agreed upon by Class Counsel and LP
prior to submission of the Motion:  (a) the
proposed form of, method for, and date of dissemination of notice to the Class;
and (b) a proposed form of final judgment order.


 


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38.           (a)           Upon
preliminary approval of the settlement, Class Counsel shall, in accordance
with Rule 23 of the Federal Rules of Civil Procedure and the Court’s
order, provide those members of the Class who have been identified by
reasonable means with notice by first class mail, in a form to be approved by
the Court, of the settlement and the date of the hearing scheduled by the Court
to consider the fairness, adequacy and reasonableness of the proposed
settlement (the “Settlement Hearing”).


 


(b)           Class Counsel shall take all necessary and
appropriate steps to ensure that notice of the Settlement Hearing is provided
in accordance with the order of the Court.


 


39.           Class Counsel shall submit a
motion for final approval of the
Settlement Agreement by the Court after notice is given to the members
of the Class of the Settlement Hearing and no less than two weeks before
the Settlement Hearing.  If the Court
approves the Settlement Agreement, Class Counsel shall seek entry of an
order and final judgment, which includes the following findings:


 


(a)           as
to the Action, approving finally this Agreement and its terms as being a fair,
reasonable, and adequate settlement as to the Class Members within the
meaning of Rule 23 of the Federal Rules of Civil Procedure and
directing its consummation according to its terms;


 


(b)           directing
that, as to LP, the Action be dismissed with prejudice and, except as provided for in this
Agreement, without costs;


 


(c)           discharging
and releasing LP from all claims as specified in Paragraph 41 herein;


 


(d)           reserving
exclusive jurisdiction over the settlement and this Agreement, including the administration and consummation of this
settlement; and


 


(e)           determining
under Federal Rule of Civil Procedure 54(b) that there is no just
reason for delay and directing that the judgment of dismissal as to LP shall be
final and entered forthwith.


 


40.           This Settlement Agreement shall become final (“Effective
Date”) on the date that: (a) the Court has entered a final judgment order
approving this Settlement Agreement under Rule 


 


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23(e) of the Federal Rules of Civil Procedure and a final
judgment dismissing the Action as against LP with prejudice as to
all Class Members and without costs; and (b) the time for appeal or
to seek permission to appeal from the Court’s approval of this Settlement
Agreement and entry of a final judgment as described in clause (a) above
has expired or, if appealed, approval of this Settlement Agreement and the
final judgment has been affirmed in its entirety by the court of last resort to
which such appeal has been taken and such affirmance has become no longer
subject to further appeal or review.  It
is agreed that neither the provisions of Rule 60 of the Federal Rules of
Civil Procedure nor the All Writs Act, 28 U.S.C. § 1651, shall be taken into
account in determining the above-stated times. 
On the Execution Date of this Agreement, Plaintiffs and LP shall be
bound by its terms, and this Agreement shall not be rescinded unless in
accordance with terms provided herein.


 


D.            Release and Discharge


 


41.           Upon the occurrence of the Effective
Date, and in consideration of payment of the
Settlement Amount, as specified in Section E of this Settlement Agreement,
and for other valuable consideration recited herein, the Releasees shall
be completely released, acquitted, and forever discharged from any and all
claims, demands, actions, suits, rights, assertions, allegations, causes of
action, controversies, proceedings, losses, damages, injuries, attorneys’ fees,
costs, expenses, debts, liabilities, judgments, and remedies, whether class,
individual, or otherwise in nature, that Releasors, or anyone of them, ever
had, now has, or hereafter can, shall, or may have against the Releasees,
whether known or unknown, on account of or arising out of the facts,
occurrences, transactions or other matters alleged in the Third Consolidated
Amended Complaint in the above-captioned matter or in complaints containing the
same allegations of conspiracy with respect to any OSB products, also
including, without limitation, engineered wood products such as I-joists,
webstock and rimboard, purchased within the United States or purchased outside
the 


 


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United States
for use, delivery or resale in the United States during the period from June 1,
2002 through and including the date
that summary notice of the Settlement Agreement is first published, including without limitation any claims which
arise under any United States federal or state antitrust, unfair
competition, unfair practices, price discrimination, unitary pricing, trade
practice, unjust enrichment, or civil conspiracy law, including, without
limitation, the Sherman Antitrust Act, 15 U.S.C. § 1 et seq. (the “Released Claims”).  Nothing herein shall be construed to release
any individual claims relating to any product defect, negligence, breach of
contract, or similar claim between the parties involving OSB.  The Releasors shall not, after the Effective
Date, seek to recover against any of the Releasees for any of the Released
Claims.


 


E.             Payments


 


42.           LP
shall pay or cause to be paid the Settlement Amount of forty-four million five
hundred thousand dollars ($44,500,000 USD) in settlement of the
Action.  Payment of the Settlement Amount
shall be made in two installments, which shall be wire transferred by LP or its
designee into the Escrow Account, which shall be established as an escrow
account at a bank designated by Class Counsel, and administered in
accordance with the provisions of this section of the Agreement.  The first installment shall consist of ten
million dollars ($10,000,000 USD) and shall be transferred into the Escrow
Account within ten (10) business days of the Execution Date.  The second installment shall consist of
thirty-four million five hundred thousand dollars ($34,500,000 USD) and shall
be transferred into the Escrow Account on October 1, 2008.


 


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43.           Each
Class Member shall look solely to the Settlement Fund for settlement and satisfaction, as
provided herein, of all claims released by the Releasors pursuant to this
Agreement.


 


44.           Upon
approval of the Court, Class Counsel shall receive reimbursement
for expenses and Payment of Attorneys’ Fees, if any, from the Settlement
Amount.  At any time following a Court
award of Payment of Attorneys’ Fees, the Escrow Agent shall, upon request of Class Counsel,
disburse such amount in accordance with written instructions received from Class Counsel.


 


45.           LP agrees not to object, subject to an order of the Court
in the Action, to the payment to Class Counsel of Payment of Attorneys’
Fees out of the Settlement Amount upon the Effective Date.  Disbursement of such amount shall not be
delayed by reason of any appeal of the Final Judgment; provided, however, if
the Court’s award of fees, costs, and expenses is vacated, reversed, or reduced
on or as a result of an appeal, Class Counsel shall within ten (10) business
days after receiving written notice from the Court of such vacatur, reversal,
or reduction, make a refund to the Escrow Account in the Action in the amount
of such vacatur, reversal, or reduction, with interest, and further provided
that if LP elects to rescind the Agreement as described in Paragraph 57, Class Counsel
shall within ten (10) business days after receiving notice from LP of such
rescission, make a refund to the Escrow Account for the Payment for Attorneys’
Fees in the Action in the amount of any such fees, costs, and expenses, with
interest.  The interest rate applicable
to any refund made to an Escrow Account pursuant to this Paragraph shall be the
same interest rate earned by Ridgeworth U.S. Treasury Money Market Funds during the period between the payment of
approved attorneys’ fees, costs, and expenses and any such refund.


 


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46.           Notice and Administration Costs shall
be taken from the Settlement Amount, and LP shall bear no responsibility for
such costs other than payment of the Settlement Amount.  Disbursements for payment of Notice and
Administration Costs may be made from the Settlement Amount upon written
notification by Class Counsel to the Escrow Agent.  Disbursements for any payments and expenses
incurred in connection with taxation matters relating to this Settlement
Agreement may be made from the Settlement Amount.


 


47.           To the extent possible and unless the
Court orders otherwise, Class Counsel shall combine notice to the Class with
its notice of the settlements with Norbord Inc., Weyerhaeuser Company, Potlatch
Corporation, Grant Forest Products, Inc. and Grant Forest Products Sales, Inc.  If such a combined notice is distributed, and
if LP or the Plaintiffs rescind or terminate this Settlement Agreement pursuant
to Paragraph 57, Class Counsel shall within ten (10) business days
after receiving or sending notice of such rescission or termination, make a
refund to the Escrow Account in the Action in the amount of any Notice and
Administration Costs previously taken therefrom, excluding LP’s proportionate
share of such Costs, which Class Counsel and LP stipulate and agree is 20%
of such costs.


 


48.           Except as otherwise provided in this
Settlement Agreement, the approval of the Court in the Action shall be required
prior to the distribution of any monies from the Escrow Account.


 


49.           The Escrow Account and the LP Opt Out
Settlement Account shall be invested in the Ridgeworth Classic U.S. Treasury
Money Market Fund.  All interest earned
on the Settlement Fund shall become and remain part of the Settlement Fund;
except as otherwise provided herein, all interest earned on the LP Opt Out
Settlement Account shall become and remain part of the LP Opt Out Settlement
Account.


 


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F.                                      Opt Outs and Opt-Out Protection


 


50.           On or before the Effective Date, the
Settlement Amount shall be reduced by 75% of the pro rata portion of the
Settlement Amount (i.e., $44,500,000 USD), plus any interest earned to that date,
for all purchases made during the Class Period by any Opt Outs.  An Opt Out’s pro rata portion (“Opt Out Share”)
shall be calculated in accordance with Paragraphs 51 and 52 below.  For clarity and by way of example, if during
the Class Period Opt Outs purchased in the aggregate 10% of the total OSB
in the Class (i.e., the Opt Out Share is 10%), the Settlement Amount
($44,500,000 USD) shall be reduced by 7.5% (i.e., 75% of 10% = $3,337,500 USD),
plus any interest accrued on that amount (i.e., any interest accrued with
respect to the $3,337,500 only).  The
Escrow Agent shall, on or before the Effective Date, calculate the total of all
such reductions in the Settlement Amount due to Opt Outs, including any
interest earned on those amounts, and deposit such amounts into a separate,
interest-bearing account (“LP Opt Out Settlement Account”) for disposition as
set forth in Paragraphs 53 and 55 below.


 


51.           For ease of administration and to
avoid any future disputes, pursuant to a confidential letter agreement between Class Counsel
and counsel for LP dated July [    ], 2008 (“Confidential
Letter Agreement”), Class Counsel, Plaintiffs, Releasors, and Releasees
have stipulated to the Opt Out Shares for certain entities, which percentage
shall be used for purposes of Paragraph 50.


 


52.           For each Opt Out who purchased OSB
structural panel products during the Class Period, and whose Opt Out Share
is not stipulated in the Confidential Letter Agreement, such Opt Out Share
shall be calculated by dividing the total OSB purchases of the Opt Out from the
Defendants during the Class Period by the total OSB sales made by the
Defendants during the same time period, which amounts shall be supplied by Class Counsel
based upon the sales 


 


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transaction data produced by
the Defendants.  Upon request, Class Counsel
shall provide a copy of its database to LP prior to the Effective Date.  The parties agree that for purposes of
calculating Opt Out Shares under this Paragraph, Class Counsel will submit
to their economic expert and he, or persons working at his direction, will
perform the necessary calculations utilizing the sales transaction data
referred to herein.  LP shall have the
right to compare Class Counsel’s database against the sales transaction
data produced by Defendants in this Litigation. 
The parties agree to meet and confer with respect to any disagreements
regarding the total purchases of the Opt Outs.


 


53.           Upon receiving notice that an Opt Out
has filed a lawsuit against LP or that LP has settled a Claim with an Opt Out, Class Counsel
shall, within ten (10) business days of receiving such notice, instruct
the Escrow Agent to refund to LP from the LP Opt Out Settlement Account an
amount equal to 75% of that Opt Out’s Share of the Settlement Amount (as
calculated pursuant to Paragraphs 50-52), plus interest earned thereon (during
the time that such funds were part of the LP Opt Out Settlement Account).  For clarity and by way of example, if an Opt
Out that purchased 10% of the OSB in the Class files a lawsuit against LP,
the Escrow Agent shall refund to LP 7.5% of the Settlement Amount (i.e.,
$3,337,500 USD), plus accrued interest, from the LP Opt Out Settlement Account.


 


54.           LP will notify Class Counsel
within 30 days upon notice to LP of the assertion of a Claim against LP by an
Opt Out.  If an Opt Out asserts a Claim
outside the context of litigation and LP settles with the Opt Out, LP agrees to
notify Class Counsel of the Claim and the terms of the associated
settlement within 30 days of the date the settlement is executed.  Upon such notification, Class Counsel
shall comply with the provisions of Paragraph 53.


 


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55.           Any monies remaining in the LP Opt
Out Settlement Account on May 10, 2012 shall be deposited in the Escrow
Account and made available for distribution to the Class according to the
plan of distribution approved by the Court with respect to this Settlement
Agreement.


 


56.           Plaintiffs and LP agree that persons
or entities that exercised their opportunity
to opt out of the Class are not entitled to the benefits and relief
of this Agreement.


 


G.                                    Rescission if the Settlement Agreement is Not Finally Approved


 


57.           If the Court declines to approve this
Settlement Agreement or any material part hereof; or if such approval is
materially modified or set aside on appeal; or if the Court does not enter the
final judgment and order; or if the Court enters the final judgment and order
and appellate review is sought and, on such review, such final judgment and
order is not affirmed; then LP and the Plaintiffs shall each, in their
respective sole discretion, have the option to rescind this Settlement
Agreement in its entirety, and any and all amounts then constituting the
Settlement Fund (including all interest earned thereon) shall be returned
forthwith to LP, less only such disbursements properly made in accordance with
this Agreement.  A modification or
reversal on appeal of any amount of Class Counsel’s fees  and expenses awarded by the Court
from the Settlement Amount or any plan of allocation of the Settlement Fund
shall not be deemed a modification of all or a part of the terms of this
Agreement or such final judgment.


 


58.           LP and Plaintiffs expressly reserve
all of their respective rights to the extent that the Settlement Agreement does
not become effective or if the Agreement is rescinded or terminated pursuant to
Paragraph 57 of this Settlement Agreement.


 


H.                                    Taxes


 


59.           Class Counsel shall be solely
responsible for directing the Claims Administrator to file all informational
and other tax returns necessary to report any taxable and/or net taxable 


 


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income earned by the Escrow
Account or LP Opt Out Settlement Account. 
Further, Class Counsel shall be solely responsible for directing
the Escrow Agent to make any tax payments, including interest and penalties
due, on income earned by the Escrow Account or LP Opt Out Settlement
Account.  Class Counsel shall be entitled to direct the Escrow
Agent to pay customary and reasonable Tax Expenses, including
professional fees and expenses incurred in connection with carrying out their
responsibilities as set forth in this Paragraph, from the Escrow Account or LP
Opt Out Settlement Account, as applicable, by notifying the Escrow Agent in
writing.  LP shall have no responsibility
to make any tax filings on behalf of the Escrow Account or LP Opt Out
Settlement Account, and shall have no responsibility to pay Taxes on any income
earned by the Escrow Account or LP Opt Out Settlement Account, or to pay any
Taxes with respect thereto unless the settlement is not consummated and the
Settlement Amount is returned to LP. 
Other than as specifically set forth herein, LP shall have no
responsibility for the payment of Taxes or Tax Expenses and Class Counsel
shall hold LP harmless with respect to any taxes arising in connection with the
Escrow Account or LP Opt Out Settlement Account.


 


60.           For the purpose of § 468B of the
Internal Revenue Code of 1986, as amended, and the regulations promulgated
thereunder, the “Administrator” of the Escrow Account and LP Opt Out Settlement
Account shall be the Claims Administrator, who shall timely and properly file
or cause to be filed on a timely basis, all tax returns necessary or advisable
with respect to the Escrow Account and LP Opt Out Settlement Account (including
without limitation all income tax returns, all informational returns, and all
returns described in Treas. Reg. § 1.468B-2(1)).


 


61.           The parties to this Settlement
Agreement and their counsel shall treat, and shall
cause the Claims Administrator to treat, the Escrow Account and LP Opt
Out Settlement Account  


 


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as
being at all times a “qualified
settlement fund” within the meaning of Treas. Reg. § 1.468B-1.  The parties, their counsel, the Claims
Administrator, and the Escrow Agent agree that they will not ask the Court to
take any action inconsistent with the treatment of the Escrow Account or LP Opt
Out Settlement Account in such manner. 
In addition, the Claims Administrator and, as required, the parties
shall timely make such elections as necessary or advisable to carry out the
provisions of this Paragraph, including the “relation-back
election” (as defined in Treas. Reg. § 1.468B-1(j)) back to the earliest
permitted date.  Such elections shall be
made in compliance with the procedures and requirements contained in such
regulations.  It shall be the responsibility
of the Claims Administrator timely and properly to prepare and deliver the
necessary documentation for signature by all necessary parties and thereafter
to cause the appropriate filing to occur. 
All provisions of this Settlement Agreement shall be interpreted in a
manner that is consistent with the Escrow Account and LP Opt Out Settlement
Account being a “qualified settlement fund” within the meaning of Treas. Reg. §
1.468B-1.


 


I.                                         Set off Against Other Judgments


 


62.           Class Members recognize that by
entering into this settlement with LP, they have obtained full satisfaction, inter
alia, of any and all claims based on purchases of OSB from LP during the Class Period.  Accordingly, Class Members agree that
should they obtain a judgment for joint or joint and several liability against
Georgia-Pacific LLC f/k/a Georgia-Pacific Corporation, Grant Forest Products, Inc.,
Grant Forest Products Sales, Inc., Norbord Inc., Weyerhaeuser Company,
Potlatch Corporation, Tolko Industries, Ltd., and/or Ainsworth Lumber Co. Ltd.,
their current and former direct or indirect subsidiaries and divisions or a
successor or assign of any of the Defendants named above, Class Members
shall exclude prior to trebling, from the amount collectable from such final
judgment, and shall not collect on such final 


 


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judgment, an amount equal to
LP’s sales to the Class Members during the Class Period or any part
thereof.


 


63.           To be clear, Class Counsel,
Plaintiffs, Class Members and Releasors expressly agree that they will
not, under any circumstances, include in any damages claim sales of OSB made by
LP to any Class Member during the Class Period, nor will they seek to
execute a judgment against Georgia-Pacific LLC f/k/a Georgia-Pacific
Corporation, Grant Forest Products, Inc., Grant Forest Products Sales, Inc.,
Norbord Inc., Weyerhaeuser Company, Potlatch Corporation, Tolko Industries,
Ltd., and/or Ainsworth Lumber Co. Ltd., their current and former direct or
indirect subsidiaries and divisions or a successor or assign of any of the
Defendants named above, in which damages are based in whole or part on sales of
OSB made by LP to any Class Member during the Class Period.


 


J.                                      Miscellaneous


 


64.           For
the purpose of construing or interpreting this Settlement Agreement, and
with the exception of Paragraphs 62 and 63, Plaintiffs and LP agree that it is
to be deemed to have been drafted equally by all parties hereto and shall not
be construed strictly for or against any party. 
Plaintiffs and LP agree that Paragraphs 62 and 63 will be deemed to have
been drafted by LP for purposes of construing or interpreting this Settlement
Agreement.


 


65.           Plaintiffs
waive California Civil Code Section 1542 and similar provisions in
other states.  Plaintiffs certify that
they are aware of and have read and reviewed the following provisions of
California Civil Code, Section 1542 (“Section 1542”):  “A general release does not extend to claims
which the creditor does not know or suspect to exist in his favor at the time
of executing the release, which if known by him must have materially affected
his settlement with the debtor.”  The
provisions of the release set forth above shall apply according to their terms,
regardless of provisions of Section 1542 or any equivalent, similar, or
comparable present or 


 


18

















 


future law or principle of
law of any jurisdiction.  Plaintiffs
hereby expressly waive and relinquish any and all rights and benefits existing
under (i) Section 1542 or any equivalent, similar or comparable
present or future law or principle of law of any jurisdiction and (ii) any
law or principle of law of any jurisdiction that would limit or restrict the
effect or scope of the provisions of the release set forth above.


 


66.           Class Counsel agree that,
following execution of this Settlement Agreement, it will make commercially
reasonable efforts to assist LP in gathering materials required to be sent to
appropriate Federal and State officials pursuant to the Class Action
Fairness Action of 2005, 28 U.S.C. § 1715, including directing the Claims
Administrator to provide a reasonable estimate of the number of class members
residing in each State.


 


67.           This Settlement Agreement, including
all Exhibits attached hereto and the Confidential Letter Agreements dated July [    ],
2008 between Class Counsel and counsel for LP, shall constitute the entire agreement between Plaintiffs
and LP pertaining to the settlement of the Action against LP and
supersedes any and all prior and contemporaneous undertakings of Plaintiffs and
LP in connection therewith.


 


68.           All terms of the Settlement Agreement
are contractual and not mere recitals. 
This Settlement Agreement shall be binding upon, and inure to the
benefit of, the successors and assigns of Releasors and Releasees.  Without limiting the generality of the
foregoing:  (a) each and every
covenant and agreement made herein by Plaintiffs shall be binding upon all Class Members
and Releasors, and (b) each and every covenant and agreement made herein
by LP shall be binding upon all Releasees.


 


19

















 


69.           Nothing expressed or implied in this
Settlement Agreement is intended to or shall be construed to confer upon or
give any person or entity other than Plaintiffs, Class Members, LP,
Releasors, and Releasees any right or remedy under or by reason of this
Settlement Agreement.


 


70.           This Settlement Agreement may be
modified or amended only by a writing jointly executed by Class Counsel
and counsel for LP, subject (if after preliminary or final approval by any
court) to approval by the Court.  Amendments and modifications may be made without
notice to the Class unless notice is required by law or by the
Court.


 


71.           All terms of this Settlement Agreement shall be governed by and
interpreted according to the substantive laws of New York without regard to its
choice of law or conflict of law principles.


 


72.           This
Settlement Agreement may be executed in counterparts by Plaintiffs and
LP, and a facsimile or .pdf signature shall be deemed an original signature for
purposes of executing this Settlement Agreement.


 


73.           Each of the undersigned represents
that he or she is fully authorized to enter into the terms and conditions of,
and to execute, this Settlement Agreement, subject to Court approval; and the
undersigned Class Counsel represent that
they are authorized to execute this Settlement Agreement on
behalf of Plaintiffs and the Class. 
Each of the undersigned shall use their best efforts to effectuate this
Settlement Agreement regardless of the jurisdiction in which the Action
proceeds.


 


74.           Where this Settlement Agreement
requires any party to provide notice or any
other communication or document to any other party, such notice, communication,
or document shall be provided by letter sent by certified mail, Express Mail,
Federal Express, or UPS to the address(es) reflected on the signature pages.


 


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  Dated: July 10, 2008

  	
  By:

  	
   

  
	
   

  	
   

  	
  Eugene A. Spector

  
	
   

  	
   

  	
  Jeffrey L. Kodroff

  
	
   

  	
   

  	
  Jeffrey J. Corrigan

  
	
   

  	
   

  	
  Jay S. Cohen

  
	
   

  	
   

  	
  Jonathan M. Jagher

  
	
   

  	
   

  	
  SPECTOR,
  ROSEMAN &  KODROFF,
  P.C.

  
	
   

  	
   

  	
  1818 Market Street,
  Suite 2500

  
	
   

  	
   

  	
  Philadelphia,
  PA 19103

  
	
   

  	
   

  	
  Tel: (215) 496-0300

  
	
   

  	
   

  	
  Fax: (215) 496-6611

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Counsel
  for Direct Purchaser Plaintiffs and Class Counsel

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Michael D. Hausfeld

  
	
   

  	
   

  	
  William P. Butterfield

  
	
   

  	
   

  	
  Patrick A. Tillou

  
	
   

  	
   

  	
  George F. Farah

  
	
   

  	
   

  	
  COHEN, MILSTEIN,
  HAUSFELD &  TOLL, P.L.L.C.

  
	
   

  	
   

  	
  1100 New York Avenue. N.W.

  
	
   

  	
   

  	
  West Tower, Suite 500

  
	
   

  	
   

  	
  Washington, DC 20005-4699

  
	
   

  	
   

  	
  Tel: (202) 408-4600

  
	
   

  	
   

  	
  Fax: (202) 408-4699

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Counsel for
  Direct Purchaser Plaintiffs and Class Counsel

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
   

  
	
   

  	
   

  	
  Michael
  P. Kenny

  
	
   

  	
   

  	
  ALSTON &
  BIRD LLP

  
	
   

  	
   

  	
  One Atlantic Center

  
	
   

  	
   

  	
  1201 West Peachtree Street

  
	
   

  	
   

  	
  Atlanta, GA 30309-3424

  
	
   

  	
   

  	
  Phone: 404-881-7834

  
	
   

  	
   

  	
  Fax: 404-253-8352

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Counsel for Louisiana-Pacific Corporation

  



 


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