Exhibit 12(d)(2)
SHAREHOLDER AGREEMENT
THIS SHAREHOLDER AGREEMENT ("Agreement"), dated as of April 1, 1995, is
between BOISE CASCADE CORPORATION, a Delaware corporation ("BCC"), and BOISE
CASCADE OFFICE PRODUCTS CORPORATION, a Delaware corporation (the "Company").
WHEREAS, BCC has contributed to the Company certain of the assets of
its Boise Cascade Office Products Distribution Division (the "Division") in
exchange for, among other things, 25,375,000 shares of common stock, par value
$.01 per share ("Common Stock"), of the Company; and
WHEREAS, the Company, with the consent of BCC, has determined to offer
to the public (the "Public Offering") up to an additional 5,318,750 shares of
Common Stock; and
WHEREAS, in partial consideration for the contribution of the assets of
the Division by BCC to the Company and the consent of BCC to the Public Offering
by the Company (including the agreement of BCC to indemnify the underwriters for
the Public Offering), the Company has, among other things, agreed to grant to
BCC (i) an option to purchase any shares of Voting Stock (as defined below) and
certain other equity securities of the Company that the Company proposes to
issue (subject to certain exceptions set forth herein), and (ii) certain
registration rights applicable to Registrable Securities (as defined below) held
by BCC; and
WHEREAS, the parties hereto desire to enter into this Agreement to set:
forth the terms of such option to purchase and registration rights.
NOW, THEREFORE, upon the premises and the mutual promises herein
contained, and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, the parties agree as follows:
1. CERTAIN DEFINITIONS. As used in this Agreement, the following
initially capitalized terms shall have the following meanings:
(a) "Accepted Securities" has the meaning set forth in
Section 12 hereof.
(b) "Affiliate" means, with respect to any person, any other
person who, directly or indirectly, is in control of, is controlled by, or is
under common control with the former person; and "control" (including the terms
"controlling," "controlled by," and "under common control with") means the
possession, direct or indirect, of the power to direct or cause the direction of
the management and policies of a person, whether through the ownership of voting
securities, by contract, or otherwise.
(c) "Company Securities" has the meaning set forth in Section
3 hereof.
(d) "Consolidated Return Period" means the period during which
BCC is the common parent of an affiliated group of corporations, which includes
the Company and its subsidiaries, and files a consolidated federal income tax
return for such affiliated group.
(e) "Exchangeable Securities" has the meaning set forth in
Section 6 of this Agreement.
(f) "Fair Market Value" means, with respect to any security,
(i) if the security is listed on a national securities exchange or authorized
for quotation on a national market quotation system, the closing price, regular
way, of the security on such exchange or quotation system, as the case may be,
or if no such reported sale of the security shall have occurred on such date, on
the next preceding date on which there was such a reported sale, or (ii) if the
security is not listed for trading on a national securities exchange or
authorized for quotation on a national market quotation system, the average of
the closing bid and asked prices as reported by the National Association of
Securities Dealers Automated Quotation System or such other reputable entity or
system engaged in the regular reporting of securities prices and on which such
prices for such security are reported or, if no such prices shall have been
reported for such date, on the next preceding date for which such prices were so
reported, or (iii) if the security is not publicly traded, the fair market value
of such security as determined by a nationally recognized investment banking or
appraisal firm mutually acceptable to the Company and the holders, the fair
market value of whose registrable securities is to be determined.
(g) "Holder" means BCC or any Permitted Transferee.
(h) "Initiating Holders" has the meaning set forth in Section
3 of this Agreement.
(i) "Offer" has the meaning set forth in Section 12 of this
Agreement.
(j) "Offered Securities" has the meaning set forth in Section
12 of this Agreement.
(k) "Other Covered Securities" has the meaning set forth in
Section 12 hereof.
(l) "Other Holders" has the meaning set forth in Section 3
hereof.
(m) "Other Securities" has the meaning set forth in Section 3
hereof.
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(n) "Other Voting Securities" means any options, rights,
warrants, or other securities convertible into or exchangeable for voting stock
of the Company.
(o) "Permitted Transferee" has the meaning set forth in
Section 11 hereof.
(p) "Person" means any individual, partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, joint venture, or other entity of whatever nature.
(q) "Registrable After-Acquired Securities" means any
securities of the Company acquired by BCC (or any Permitted Transferee) pursuant
to Section 12 of this Agreement.
(r) "Registrable Securities" means (i) all shares of common
stock (as presently constituted) owned on the date hereof by BCC, (ii) all
Registrable After-Acquired Securities, (iii) any stock or other securities into
which or for which such common stock or Registrable After-Acquired Securities
may hereafter be changed, converted, or exchanged, and (iv) any other securities
issued to Holders of such common stock or Registrable After-Acquired Securities
(or such stock or other securities into which or for which such common stock or
Registrable After-Acquired Securities are so changed, converted, or exchanged)
upon any reclassification, share combination, share subdivision, share dividend,
merger, consolidation, or similar transaction or event, PROVIDED that any such
securities shall cease to be Registrable Securities when such securities are
sold in any manner to a person who is not a Permitted Transferee.
(s) "Registration Expenses" means all out-of-pocket expenses
incurred in connection with any registration of Registrable Securities pursuant
to this Agreement, including without limitation, the following: (i) SEC filing
fees; (ii) the fees, disbursements, and expenses of the Company's counsel(s) and
accountants in connection with the registration of the Registrable Securities to
be disposed of; (iii) all expenses in connection with the preparation, printing,
and filing of the registration statement, any preliminary prospectus or final
prospectus and amendments and supplements thereto, and the mailing and
delivering of copies thereof to any Holders, underwriters, and dealers, and all
expenses incidental to delivery of the Registrable Securities; (iv) the cost of
printing or producing any underwriting agreement, agreement among underwriters,
agreement between syndicates, selling agreement, blue sky or legal investment
memorandum, or other document in connection with the offering, sale, or delivery
of the Registrable Securities to be disposed of; (v) all expenses in connection
with the qualification of the Registrable Securities to be disposed of for
offering and sale under state securities laws, including the fees and
disbursements of counsel for the underwriters in connection with such
qualification and the preparation of any blue sky and legal investments surveys;
(vi) the filing fees incident to securing any required review by the National
Association of Securities Dealers, Inc., of the terms of the sale of the
Registrable Securities to be disposed of; (vii) transfer agents', depositaries',
and
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registrars' fees and the fees of any other agent appointed in connection with
such offering; (viii) all security engraving and security printing expenses;
(ix) all fees and expenses payable in connection with the listing of the
Registrable Securities on any securities exchange or inter-dealer quotation
system; and (x) any one-time payment for directors' and officers' insurance
directly related to such offering, PROVIDED the insurer provides a separate
statement for such payment.
(t) "Rule 144" means Rule 144 promulgated under the
Securities Act, or any successor rule to similar effect.
(u) "SEC" means the United States Securities and Exchange
Commission.
(v) "Securities Act" means the Securities Act of 1933, as
amended, or any successor statute.
(w) "Selling Expenses" means all underwriting discounts and
commissions, selling concessions and stock transfer taxes applicable to the sale
by the Holders of Registrable Securities pursuant to this Agreement, and all
fees and disbursements of any legal counsel, investment banker, accountant, or
other professional advisor retained by a Holder.
(x) "Selling Holder" has the meaning set forth in Section 5
hereof.
(y) "Transactional Deferral" has the meaning set forth in
Section 2 of this Agreement.
(z) "Voting Stock" means shares of the Company's capital stock
having the power under ordinary circumstances (and not merely upon the happening
of a contingency) to vote in the election of directors of the Company.
2. DEMAND REGISTRATION.
(a) At any time prior to such time as the rights under this
Section 2 terminate with respect to a Holder as provided in Section 2(e) hereof,
upon written notice from such Holder in the manner set forth in Section 13(h)
hereof requesting that the Company effect the registration under the Securities
Act of any or all of the Registrable Securities held by such Holder, which
notice shall specify the intended method or methods of disposition of such
Registrable Securities, the Company shall use its best efforts to effect, in the
manner set forth in Section 5, the registration under the Securities Act of such
Registrable Securities for disposition in accordance with the intended method or
methods of disposition stated in such request (including in an offering on a
delayed or continuous basis under Rule 415 (or any successor rule to similar
effect) promulgated under the Securities Act, if (x) the Company is then
eligible to register such Registrable Securities on Form S-3 (or a successor
form) for such offering and (y) the Company consents to such an offering (except
that no consent of
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the Company will be required if the contemplated offering on a delayed or
continuous basis under Rule 415 is the offering of Registrable Securities upon
the exercise, exchange or conversion of Exchangeable Securities as contemplated
by Section 6 hereon), PROVIDED that:
(i) if, within five (5) business days of receipt of
a registration request pursuant to this Section 2(a), the Holder or Holders
making such request are advised in writing that the Company has in good faith
commenced the preparation of a registration statement for an underwritten public
offering prior to receipt of the notice requesting registration pursuant to this
Section 2(a) and the managing underwriter of the proposed offering has
determined, and set forth in writing to said Holder or Holders, that in such
firm's good faith opinion, a registration at the time and on the terms requested
would materially and adversely affect the offering that is contemplated by the
Company, the Company shall not be required to effect a registration pursuant to
this Section 2(a) (a "Transactional Deferral") until the earliest of (A) the
abandonment of such offering by the Company, (B) 60 days after receipt by the
Holder or Holders requesting registration of the managing underwriter's written
opinion referred to above in this clause (i), unless the registration statement
for such offering has become effective and such offering has commenced on or
prior to such 60th day, and (C) if the registration statement for such offering
has become effective and such offering has commenced on or prior to such 60th
day, the day on which the restrictions on the Holders contained in Section 10
hereof lapse, PROVIDED HOWEVER, that the Company shall not be permitted to delay
a requested registration in reliance on this clause (i) more than once in any
12-month period;
(ii) if, while a registration request is pending
pursuant to this Section 2(a), the Company is advised in writing by its legal
counsel that the filing of a registration statement would require the disclosure
of material information that the Company has a bona fide business purpose for
preserving as confidential and the disclosure of which the Company determines
reasonably and in good faith would have a material adverse effect on the
Company, the Company shall not be required to effect a registration pursuant to
this Section 2(a) until the earlier of (A) the date upon which such material
information is otherwise disclosed to the public or ceases to be material and
(B) 90 days after the Company makes such determination;
(iii) the Company shall not be obligated to file a
registration statement relating to a registration request pursuant to this
Section 2: (A) prior to the first anniversary of the closing of the Public
Offering, (B) within a period of 365 calendar days after the effective date of
any other registration statement of the Company demanded pursuant to this
Section 2(a), or (C) if such registration request is for a number of Registrable
Securities having a Fair Market Value on the business day immediately preceding
the date of such registration request of less than $50,000,000; and
(iv) the Company shall not be obligated to file a
registration statement relating to a registration request pursuant to this
Section 2: (A) in the case of
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a registration request by BCC or any Permitted Transferee that has acquired, in
the transaction in which it became a Permitted Transferee, at least a majority
of the then issued and outstanding Voting Stock, on more than three occasions
after such time as BCC or such Permitted Transferee, as the case may be, owns
less than a majority of the voting power of the outstanding capital stock of the
Company (it being acknowledged that so long as BCC or such Permitted Transferee
owns a majority of the voting power of the outstanding capital stock of the
Company, there shall be no limit to the number of occasions on which BCC or such
Permitted Transferee may exercise such rights), or (B) in the case of a Holder
other than BCC or a Permitted Transferee described in clause (A) above, on more
than the number of occasions permitted such Holder in accordance with Section 11
hereof.
(b) Notwithstanding any other provision of this Agreement to
the contrary:
(i) a registration requested by a Holder pursuant to
this Section 2 shall not be deemed to have been effected (and, therefore, not
requested for purposes of Section 2(a)), (A) unless the registration statement
filed in connection therewith has become effective, (B) if after such
registration statement has become effective, it becomes subject to any stop
order, or there is issued an injunction or other order or decree of the SEC or
other governmental agency or court for any reason other than a misrepresentation
or an omission by such Holder, which injunction, order, or decree prohibits or
otherwise materially and adversely affects the offer and sale of the Registrable
Securities so registered prior to the completion of the distribution thereof in
accordance with the plan of distribution set forth in the registration
statement, or (C) if the conditions to closing specified in the purchase
agreement or underwriting agreement entered into in connection with such
registration are not satisfied by reason of some act, misrepresentation, or
omission by the Company and are not waived by the purchasers or underwriters;
and
(ii) nothing herein shall modify a Holder's
obligation to pay Registration Expenses, in accordance with Section 4 hereof,
that are incurred in connection with any withdrawn registration requested by
such Holder.
(c) In the event that any registration pursuant to this
Section 2 shall involve, in whole or in part, an underwritten offering, Holders
owning at least 50.1% of the Fair Market Value of the Registrable Securities to
be registered in connection with such offering shall have the right to designate
an underwriter reasonably satisfactory to the Company as the lead managing
underwriter of such underwritten offering, and the Company shall have the right
to designate one underwriter reasonably satisfactory to such Holders as a
co-manager of such underwritten offering.
(d) The Company shall have the right to cause the registration
of additional securities for sale for the account of any person (including the
Company) in any registration of Registrable Securities requested by any Holder
pursuant to Section 2(a) only to the extent the managing underwriter or other
independent
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marketing agent for such offering (if any) determines that, in its opinion, the
additional securities proposed to be sold will not materially and adversely
affect the offering and sale of the Registrable Securities to be registered in
accordance with the intended method or methods of disposition then contemplated
by such Holder. The rights of a Holder to cause the registration of additional
Registrable Securities held by such Holder in any registration of Registrable
Securities requested by another Holder pursuant to Section 2(a) shall be
governed by the agreement of the Holders with respect thereto as provided in
Section 11(a).
(e) The Company shall not be obligated to file a registration
statement relating to a registration request by a Holder pursuant to this
Section 2 from and after such time as such Holder first owns Registrable
Securities representing (assuming for this purpose the conversion, exchange, or
exercise of all Registrable Securities then owned by such Holder that are
convertible into or exercisable or exchangeable for Voting Stock of the Company)
less than 10% of the then issued and outstanding Voting Stock of the Company.
3. PIGGYBACK REGISTRATION. If the Company at any time proposes to
register any of its common stock or any other of its securities (collectively,
"Other Securities") under the Securities Act, whether or not for sale for its
own account, in a manner which would permit registration of Registrable
Securities for sale for cash to the public under the Securities Act, it will
each such time give prompt written notice to each Holder of its intention to do
so at least 10 business days prior to the anticipated filing date of the
registration statement relating to such registration. Such notice shall offer
each such Holder the opportunity to include in such registration statement such
number of Registrable Securities as each such Holder may request. Upon the
written request of any such Holder made within five (5) business days after the
receipt of the Company's notice (which request shall specify the number of
Registrable Securities intended to be disposed of and the intended method of
disposition thereof), the Company shall effect, in the manner set forth in
Section 5, in connection with the registration of the Other Securities, the
registration under the Securities Act of all Registrable Securities which the
Company has been so requested to register, to the extent required to permit the
disposition (in accordance with such intended methods thereof) of the
Registrable Securities so requested to be registered, PROVIDED that:
(a) If at any time after giving written notice of its
intention to register any securities and prior to the effective date of such
registration, the Company shall determine for any reason not to register or to
delay registration of such securities, the Company may, at its election, give
written notice of such determination to the Holders and, thereupon, (A) in the
case of a determination not to register, the Company shall be relieved of its
obligation to register any Registrable Securities in connection with such
registration, and (B) in the case of a determination to delay such registration,
the Company shall be permitted to delay registration of any Registrable
Securities requested to be included in such registration for the same period as
the delay in registering such other securities, but, in either such case,
without prejudice to the rights of the Holders under Section 2;
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(b)
(i) if the registration referred to in the first
sentence of this Section 3 is to be a registration in connection with an
underwritten offering on behalf of either the Company or Holders of securities
(other than Registrable Securities) of the Company ("Other Holders"), and the
managing underwriter for such offering advises the Company in writing that, in
such firm's opinion, such offering would be materially and adversely affected by
the inclusion therein of Registrable Securities requested to be included therein
because such Registrable Securities are not of the same type, class, or series
as the securities to be offered and sold in such offering on behalf of the
Company and/or the Other Holders, the Company may exclude all such Registrable
Securities from such offering provided that the Holder is permitted to
substitute for the Registrable Securities so excluded an equal number of
Registrable Securities of the same type, class, or series as those being
registered by the Company or the Other Holders, if and to the extent such Holder
owns Registrable Securities of such type, class, or series or can acquire
Registrable Securities of such type, class, or series upon exercise or
conversion of other Registrable Securities; and
(ii) if the registration referred to in the first
sentence of this Section 3 is to be a registration in connection with an
underwritten primary offering on behalf of the Company, and the managing
underwriter for such offering advises the Company in writing that, in such
firm's opinion, such offering would be materially and adversely affected by the
inclusion therein of the Registrable Securities requested to be included therein
because the number or principal amount of such Registrable Securities,
considered together with the number or principal amount of securities proposed
to be offered by the Company, exceeds the aggregate number or principal amount
of securities which, in such firm's opinion, can be sold in such offering
without materially and adversely affecting the offering, the Company shall
include in such registration: (1) first, all securities the Company proposes to
sell for its own account ("Company Securities"), and (2) second, the number or
principal amount of Registrable Securities and securities, if any, requested to
be included therein by Other Holders in excess of the number or principal amount
of Company Securities which, in the opinion of such underwriter, can be so sold
without materially and adversely affecting such offering (allocated pro rata
among the Holders and the Other Holders on the basis of the number of securities
(including Registrable Securities) requested to be included therein by each
Holder and each such Other Holder); and
(iii) if the registration referred to in the first
sentence of this Section 3 is to be a registration in connection with an
underwritten secondary offering on behalf of Other Holders made pursuant to
demand registration rights granted by the Company to such Other Holders (the
"Initiating Holders"), and the managing underwriter for such offering advises
the Company in writing that in such firm's opinion, such offering would be
materially and adversely affected by the inclusion therein of the Registrable
Securities requested to be included therein because the number or principal
amount of such Registrable Securities, considered together with the number or
principal
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amount of securities proposed to be offered by the Initiating Holders, exceeds
the aggregate number or principal amount of securities which, in such firm's
opinion, can be sold in such offering without materially and adversely affecting
the offering, the Company shall include in such registration; (1) first, to the
extent the registration rights granted to an Initiating Holder permit it to
exclude other securities from its registration on substantially the same basis
as that set forth in the first sentence of Section 2(d) hereof, all securities
any such Initiating Holder proposes to sell for its own account, and (2) second,
the number or principal amount of additional securities (including Registrable
Securities) that such managing underwriter advises can be sold without
materially and adversely affecting such offering, allocated pro rata among any
Other Holders to which clause (1) does not apply and the Holders on the basis of
the number of securities (including Registrable Securities) requested to be
included therein by each Holder and each such Other Holder;
(c) The Company shall not be required to effect any
registration of Registrable Securities under this Section 3 incidental to the
registration of any of its securities in connection with stock option or other
executive or employee benefit or compensation plans of the Company;
(d) No registration of Registrable Securities effected under
this Section 3 shall relieve the Company of its obligation to effect any
registration of Registrable Securities required of the Company pursuant to
Section 2 hereof; and
(e) The Company shall not be required to effect any
registration of Registrable Securities under this Section for any Holder from
and after such time as such Holder is able to dispose of all of its Registrable
Securities within a three-month period pursuant to Rule 144.
4. EXPENSES. The Holders, on the one hand, by accepting Registrable
Securities, and the Company, on the other hand, each agree to pay one-half of
all Registration Expenses with respect to a registration pursuant to Section 2
hereof, PROVIDED that to the extent a registration pursuant to Section 2
includes the registration of shares for the Company or another person in
connection therewith, the Company or such other person shall pay all incremental
expenses of including such additional shares in the registration. The Holders'
portion of any Registration Expenses shall be allocated among them pro rata
based on each Holder's number or principal amount of Registrable Securities
included in such offering. The Company agrees to pay all Registration Expenses
with respect to a registration pursuant to Section 3 hereof. All Registration
Expenses to be paid by the Holder shall be paid within 30 days of the delivery
of a statement from the Company, such statements to be delivered not more
frequently than once every 60 days. All internal expenses of the Company or a
Holder in connection with any offering pursuant to this Agreement, including
without limitation the salaries and expenses of officers and employees,
including in-house attorneys, shall be borne by the party incurring them. All
Selling Expenses of the Holders participating in any registration pursuant to
this Agreement shall be borne by such Holders pro rata based on each Holder's
number of Registrable Securities included in such registration.
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5. REGISTRATION AND QUALIFICATION. If and whenever the Company is
required to use its best efforts to effect the registration of any Registrable
Securities under the Securities Act as provided in Section 2 or 3 hereof, the
Company, subject to Section 4 hereof, shall:
(a) Prepare and file a registration statement under the
Securities Act relating to the Registrable Securities to be offered as soon as
practicable, but in no event later than 45 days (60 days if the applicable
registration form is other than Form S-3) after the date notice is given, and
use its best efforts to cause the same to become effective within 90 days after
the date notice is given (120 days if the applicable registration form is other
than Form S-3);
(b) Prepare and file with the SEC such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective with
respect to the disposition of all Registrable Securities until the earlier of
(i) such time as all of such Registrable Securities have been disposed of in
accordance with the intended methods of disposition set forth in such
registration statement, and (ii) the expiration of nine months after such
registration statement becomes effective; PROVIDED, that such nine-month period
shall be extended for such number of days that equals the number of days
elapsing from (A) the date the written notice contemplated by paragraph (f)
below is given by the Company to (B) the date on which the Company delivers to
the Holders of Registrable Securities the supplement or amendment contemplated
by paragraph (f) below; and PROVIDED FURTHER, that in the case of a registration
to permit the exercise or exchange of Exchangeable Securities for, or the
conversion of Exchangeable Securities into, Registrable Securities, the time
limitation contained in clause (ii) above shall be disregarded to the extent
that, in the written opinion of BCC's counsel delivered to the Company, such
Registrable Securities are required to be covered by an effective registration
statement under the Securities Act at the time such Registrable Securities are
issued upon exercise, exchange, or conversion of Registrable Securities in order
for such Registrable Securities to be freely tradeable by any person who is not
an Affiliate of the Company or BCC;
(c) Furnish to the Holders and to any underwriter of such
Registrable Securities such number of conformed copies of such registration
statement and of each such amendment and supplement thereto (in each case
including all exhibits), such number of copies of the prospectus included in
such registration statement (including each preliminary prospectus and any
summary prospectus), in conformity with the requirements of the Securities Act,
and such other documents as the Holders or such underwriter may reasonably
request in order to facilitate the public sale of the Registrable Securities,
and a copy of any and all transmittal letters or other correspondence to, or
received from, the SEC or any other governmental agency or self-regulatory body
or other body having jurisdiction (including any domestic or foreign securities
exchange) relating to such offering;
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(d) Use its best efforts to register or qualify all
Registrable Securities covered by such registration statement under the
securities or blue sky laws of such jurisdictions (domestic or foreign) as the
Holders or any underwriter of such Registrable Securities shall request, and use
its best efforts to obtain all appropriate registrations, permits, and consents
required in connection therewith, and do any and all other acts and things which
may be necessary or advisable to enable the Holders or any such underwriter to
consummate the disposition in such jurisdictions of its Registrable Securities
covered by such registration statement; PROVIDED that the Company shall not for
any such purpose be required to register or qualify generally to do business as
a foreign corporation in any jurisdiction wherein it is not so qualified, or to
subject itself to taxation in any such jurisdiction, or to consent to general
service of process in any such jurisdiction;
(e) (i) use its best efforts to furnish an opinion of
counsel for the Company addressed to the underwriters and each holder of
Registrable Securities included in such registration (each a "Selling Holder")
and dated the date of the closing under the underwriting agreement (if any) (or
if such offering is not underwritten, dated the effective date of the
registration statement), and
(ii) use its best efforts to furnish a "cold
comfort" letter addressed to each Selling Holder, if permissible under
applicable accounting practices, and signed by the independent public
accountants who have audited the Company's financial statements included in such
registration statement, in each such case covering substantially the same
matters with respect to such registration statement (and the prospectus included
therein) as are customarily covered in opinions of issuer's counsel and in
accountants' letters delivered to underwriting in underwritten public offerings
of securities and such other matters as the Selling Holders may reasonably
request and, in the case of such accountants' letter, with respect to events
subsequent to the date of such financial statements;
(f) Immediately notify the Selling Holders in writing (i) at
any time when a prospectus relating to a registration pursuant to Section 2 or 3
hereof is required to be delivered under the Securities Act of the happening of
any event as a result of which the prospectus included in such registration
statement, as then in effect, includes an untrue statement of a material fact or
omits to state any material fact required to be stated therein or necessary to
make the statements therein, in light of the circumstances under which they were
made, not misleading, and (ii) of any request by the SEC or any other regulatory
body or other body having jurisdiction for any amendment of or supplement to any
registration statement or other document relating to such offering, and in
either such case (i) or (ii) at the request of the Selling Holders, subject to
Section 4 hereof, prepare and furnish to the Selling Holders a reasonable number
of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the purchasers of such Registrable
Securities, such prospectus shall not include an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
are made, not misleading;
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(g) Use its best efforts to list all such Registrable
Securities covered by such registration on each securities exchange and
inter-dealer quotation system on which the common stock is then listed, with
expenses in connection therewith (not including any future periodic assessments
or fees for such additional listing, which shall be paid by the Company) to be
paid in accordance with Section 4 hereof;
(h) Use its best efforts to list all Registrable Securities
covered by such registration statement on any securities exchange or
inter-dealer quotation system (in each case, domestic or foreign) not described
in paragraph (g) above as the Selling Holders or any underwriter of such
Registrable Securities shall request, and use its best efforts to obtain all
appropriate registrations, permits, and consents required in connection
therewith, and to do any and all other acts and things which may be necessary or
advisable to effect such listing; PROVIDED, HOWEVER, that, (i) notwithstanding
Section 4, the Holders of the Registrable Securities to be so listed shall pay
all costs and expenses incurred by the Company in connection with such listing,
and (ii) the Company shall have no obligation to use its best efforts to so list
Registrable Securities if in the good faith opinion of counsel for the Company
such listing shall impose on the Company an ongoing material compliance
obligation;
(i) To the extent reasonably requested by the lead or managing
underwriters in connection with any underwritten offering, send appropriate
officers of the Company to attend any "road shows" scheduled in connection with
any such registration; and
(j) Furnish for delivery, in connection with the closing of
any offering of Registrable Securities, unlegended certificates representing
ownership of the Registrable Securities being sold in such denominations as
shall be requested by the Selling Holders or the underwriters.
6. EXCHANGEABLE SECURITIES. BCC shall be entitled, if it intends to
offer any options, rights, warrants, or other securities issued or to be issued
by it or any other person that are exercisable or exchangeable for or
convertible into any Registrable Securities ("Exchangeable Securities"), to
register the Registrable Securities underlying such options, rights, warrants,
or other securities pursuant to (and subject to the limitations contained in)
Section 2 of this Agreement.
7. UNDERWRITING; DUE DILIGENCE.
(a) If requested by the underwriters for any underwritten
offering of Registrable Securities pursuant to a registration requested under
this Agreement, the Company shall enter into an underwriting agreement with such
underwriters for such offering, such agreement to contain such representations
and warranties by the Company and such other terms and provisions as are
customarily contained in underwriting agreements with respect to secondary
distributions, including without limitation indemnities and contribution
substantially to the effect and to the extent
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provided in Section 8 hereof and the provision of opinions of counsel and
accountants' letters to the effect and to the extent provided in Section 5(e)
hereof. The Selling Holders on whose behalf the Registrable Securities are to be
distributed by such underwriters shall be parties to any such underwriting
agreement and the representations and warranties by, and the other agreements on
the part of, the Company to and for the benefit of such underwriters, shall also
be made to and for the benefit of such Selling Holders. Such underwriting
agreement shall also contain such representations and warranties by the Selling
Holders on whose behalf the Registrable Securities are to be distributed as are
customarily contained in underwriting agreements with respect to secondary
distributions. The Selling Holders may require that any additional securities
included in an offering proposed by a Holder be included on the same terms and
conditions as the Registrable Securities that are included therein.
(b) In the event that any registration pursuant to Section 3
shall involve, in whole or in part, an underwritten offering, the Company may
require the Registrable Securities requested to be registered pursuant to
Section 3 to be included in such underwritten offering on the same terms and
conditions as shall be applicable to the other securities being sold through
underwriters under such registration. If requested by the underwriters for such
underwritten offering, the Selling Holders on whose behalf the Registrable
Securities are to be distributed shall enter into an underwriting agreement with
such underwriters, such agreement to contain such representations and warranties
by the Selling Holders and such other terms and provisions as are customarily
contained in underwriting agreements with respect to secondary distributions,
including without limitation, indemnities and contribution substantially to the
effect and to the extent provided in Section 8 hereof. Such underwriting
agreement shall also contain such representations and warranties by the Company
and such other person or entity for whose account securities are being sold in
such offering as are customarily contained in underwriting agreements with
respect to secondary distributions.
(c) In connection with the preparation and filing of each
registration statement registering Registrable Securities under tire Securities
Act, the Company shall give the Holders of such Registrable Securities and the
underwriters, if any, and their respective counsel and accountants, such
reasonable and customary access to its books and records and such opportunities
to discuss the business of the Company with its officers and the independent
public accountants who have certified the Company's financial statements as
shall be necessary, in the opinion of such Holders and such underwriters or
their respective counsel, to conduct a reasonable investigation within the
meaning of the Securities Act.
8. INDEMNIFICATION AND CONTRIBUTION.
(a) In the case of each offering of Registrable Securities
made pursuant to this Agreement, the Company agrees to indemnify and hold
harmless each Holder, its officers and directors, each underwriter of
Registrable Securities so offered and each person, if any, who controls any of
the foregoing persons within the meaning
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of the Securities Act, from and against any and all claims, liabilities, losses,
damages, expenses, and judgments, joint or several, to which they or any of them
may become subject, under the Securities Act or otherwise, including any amount
paid in settlement of any litigation commenced or threatened, and shall promptly
reimburse them, as and when incurred, for any reasonable legal or other expenses
incurred by them in connection with investigating any claims and defending any
actions, insofar as such losses, claims, damages, liabilities, or actions shall
arise out of, or shall be based upon, any untrue statement or alleged untrue
statement of a material fact contained in the registration statement (or in any
preliminary or final prospectus included therein) or any amendment thereof or
supplement thereto, or in any document incorporated by reference therein, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading;
PROVIDED, HOWEVER, that the Company shall not be liable to a particular Holder
in any such case to the extent that any such loss, claim, damage, liability, or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement, or any omission, if such statement or omission shall have been made
in reliance upon and in conformity with information relating to such Holder
furnished to the Company in writing by or on behalf of such Holder specifically
for use in the preparation of the registration statement (or in any preliminary
or final prospectus included therein) or any amendment thereof or supplement
thereto. Such indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of a Holder and shall survive the transfer of
such securities. The foregoing indemnity agreement is in addition to any
liability which the Company may otherwise have to each Holder, any of such
Holder's directors or officers, underwriters of the Registrable Securities, or
any controlling person of the foregoing; PROVIDED, FURTHER, that this indemnity
does not apply in favor of any underwriter or person controlling an underwriter
(or if a Selling Holder offers Registrable Securities directly without an
underwriter, the Selling Holder) with respect to any loss, liability, claim,
damage, or expense arising out of, or based upon, any untrue statement or
alleged untrue statement or omission or alleged omission in any preliminary
prospectus if a copy of a final prospectus was not sent or given by or on behalf
of an underwriter (or the Selling Holder, if the Selling Holder offered the
Registrable Securities directly without an underwriter) to the person asserting
such loss, claim, damage, liability, or action at or prior to the written
confirmation of the sale of the Registrable Securities as required by the
Securities Act and such untrue statement or omission had been corrected in such
final prospectus.
(b) In the case of each offering made pursuant to this
Agreement, each Holder of Registrable Securities included in such offering, by
exercising its registration rights hereunder, agrees to indemnify and hold
harmless the Company, its officers and directors, and each person, if any, who
controls any of the foregoing within the meaning of the Securities Act (and if
requested by the underwriters, each underwriter who participates in the
offering, and each person, if any, who controls any such underwriter within the
meaning of the Securities Act), from and against any and all claims,
liabilities, losses, damages, expenses, and judgments, joint or several, to
which they or any of them may become subject, under the Securities Act or
otherwise, including any amount paid in settlement of any litigation commenced
or threatened, and shall promptly
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reimburse them, as and when incurred, for any legal or other expenses incurred
by them in connection with investigating any claims and defending any actions,
insofar as any such losses, claims, damages, liabilities, or actions shall arise
out of, or shall be based upon, any untrue statement or alleged untrue statement
of a material fact contained in the registration statement (or in any
preliminary or final prospectus included therein) or any amendment thereof or
supplement thereto, or any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, but in each case only to the extent that such untrue
statement of a material fact is contained in, or such material fact is omitted
from, information relating to such Holder furnished in writing to the Company by
or on behalf of such Holder specifically for use in the preparation of such
registration statement (or in any preliminary or final prospectus included
therein). The foregoing indemnity is in addition to any liability which such
Holder may otherwise have to the Company, any of its directors or officers,
underwriters of the Registrable Securities, or any controlling person of the
foregoing; PROVIDED, HOWEVER, that this indemnity does not apply in favor of any
underwriter or person controlling an underwriter (or if the Company offers
Registrable Securities directly without an underwriter, the Company) with
respect to any loss, liability, claim, damage, or expense arising out of or
based upon any untrue statement or alleged untrue statement or omission or
alleged omission in any preliminary prospectus if a copy of a final prospectus
was not sent or given by or on behalf of an underwriter (or the Company, if the
Company offered the Registrable Securities directly without an underwriter) to
the person asserting such loss, claim, damage, liability, or action at or prior
to the written confirmation of the sale of the Registrable Securities as
required by the Securities Act and such untrue statement or omission had been
corrected in such final prospectus.
(c) Each party indemnified under paragraph (a) or (b) of this
Section 8 shall, promptly after receipt of notice of any claim or the
commencement of any action against such indemnified party in respect of which
indemnity may be sought, notify the indemnifying party in writing of the claim
or the commencement thereof; provided that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to
an indemnified party on account of the indemnity agreement contained in
paragraph (a) or (b) of this Section 8, except to the extent the indemnifying
party was materially prejudiced by such failure, and in no event shall relieve
the indemnifying party from any other liability which it may have to such
indemnified party. If any such claim or action shall be brought against an
indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein, and, to the extent
that it wishes, jointly with any other similarly notified indemnifying party, to
assume the defense thereof with counsel reasonably satisfactory to the
indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the
indemnifying party shall not be liable to the indemnified party under this
Section 8 for any legal or other expenses subsequently incurred by the
indemnified party in connection with the defense thereof other than reasonable
costs of investigation; PROVIDED that each indemnified party, its officers and
directors, if any, and each person, if any, who controls such indemnified party
within the meaning of the Securities Act, shall have the right to employ
separate counsel
-15-
reasonably approved by the indemnifying party to represent them if the named
parties to any action (including any impleaded parties) include both such
indemnified party and an indemnifying party or an Affiliate of an indemnifying
party, and such indemnified party shall have been advised by counsel either (i)
that there may be one or more legal defenses available to such indemnifying
party that are different from or additional to those available to such
indemnified party or such Affiliate, or (ii) a conflict may exist between such
indemnified party and such indemnifying party or such Affiliate, and in that
event the fees and expenses of one such separate counsel for all such
indemnified parties shall be paid by the indemnifying party. An indemnified
party will not enter into any settlement agreement which is not approved by the
indemnifying party, such approval not to be unreasonably withheld. The
indemnifying party may not agree to any settlement of any such claim or action
which provides for any remedy or relief other than monetary damages for which
the indemnifying party shall be responsible hereunder, without the prior written
consent of the indemnified party, which consent shall not be unreasonably
withheld. In any action hereunder as to which the indemnifying party has assumed
the defense thereof with counsel reasonably satisfactory to the indemnified
party, the indemnified party shall continue to be entitled to participate in the
defense thereof, with counsel of its own choice, but, except as set forth above,
the indemnifying party shall not be obligated hereunder to reimburse the
indemnified party for the costs thereof. In all instances, the indemnified party
shall cooperate fully with the indemnifying party or its counsel in the defense
of such claim or action.
(d) If the indemnification provided for in this Section 8
shall for any reason be unavailable to or insufficient to hold harmless an
indemnified party in respect of any loss, claim, damage, or liability, or any
action in respect thereof, referred to herein, then each indemnifying party
shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim,
damage, liability, or action in respect thereof, in such proportion as shall be
appropriate to reflect the relative fault of the indemnifying party on the one
hand and the indemnified party, on the other, with respect to the statements or
omissions which resulted in such loss, claim, damage, liability, or action in
respect thereof, as well as any other relevant equitable considerations. The
relative fault shall be determined by reference to whether the untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a
material fact relates to information supplied by the indemnifying party, on the
one hand, or the indemnified party, on the other, the intent of the parties and
their relative knowledge, access to information, and opportunity to correct or
prevent such statement or omission, but not by reference to any indemnified
party's stock ownership in the Company. In no event, however, shall a Holder be
required to contribute in excess of the amount of the net proceeds received by
such Holder in connection with the sale of Registrable Securities in the
offering which is the subject of such loss, claim, damage, or liability. The
amount paid or payable by an indemnified party as a result of the loss, claim,
damage, liability, or action in respect thereof, referred to above in this
paragraph shall be deemed to include, for purposes of this paragraph, any legal
or other expenses reasonably incurred by such indemnifying party in connection
with investigating or defending any such action or claim. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the
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Securities Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation.
9. RULE 144. The Company shall take such measures and file such
information, documents, and reports as shall be required by the SEC as a
condition to the availability of Rule 144 (or any successor provision). The
Company shall use its best efforts to cause all conditions to the availability
of Form S-3 (or any successor form thereto) under the Securities Act for the
filing of registration statements under this Agreement to be met as soon as
possible after the completion of the Public Offering.
10. HOLDBACK.
(a) Each Holder agrees by the acquisition of Registrable
Securities, if so required by the managing underwriter of any offering of equity
securities by the Company, not to sell, make any short sale of, loan, grant any
option for the purchase of, effect any public sale or distribution of, or
otherwise dispose of any Registrable Securities owned by such Holder, during the
30 days prior to and the 90 days after the registration statement relating to
such offering has become effective (or such shorter period as may be required by
the underwriter), except as part of such underwritten offering. Notwithstanding
the foregoing sentence, each Holder subject to the foregoing sentence shall be
entitled to sell during the foregoing period any securities of the Company owned
by it in a private sale. The Company may legend and may impose stop transfer
instructions on any certificate evidencing Registrable Securities relating to
the restrictions provided for in this Section 10.
(b) The Company agrees, if so required by the managing
underwriter of any offering of Registrable Securities, not to sell, make any
short sale of, loan, grant any option for the purchase of (other than pursuant
to employee benefit plans), effect any public sale or distribution of, or
otherwise dispose of any of its equity securities during the 30 days prior to
and the 90 days after any underwritten registration pursuant to Section 2 or 3
hereof has become effective, except as part of such underwritten registration
and except pursuant to registrations on Form ▇-▇, ▇-▇, or any successor or
similar forms thereto.
11. TRANSFER OF REGISTRATION RIGHTS.
(a) A Holder may transfer all or any portion of its rights
under this Agreement (except the rights of such Holder (if any) under Section 12
hereof, the transfer of which rights shall be governed by the provisions of
Section 12) to any transferee of Registrable Securities that represent (assuming
the conversion, exchange, or exercise of all Registrable Securities so
transferred that are convertible into or exercisable or exchangeable for the
Company's Voting Stock) at least 20% of the then issued and outstanding Voting
Stock of the Company (each a "Permitted Transferee"); PROVIDED, HOWEVER, that
(i) with respect to any transferee of less than a majority but more than 30% of
the then issued and outstanding Voting Stock, the Company shall not be obligated
to file a registration statement pursuant to a registration request made by
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such transferee pursuant to Section 2 hereof on more than two occasions, and
(ii) with respect to any transferee of 30% or less of the then issued and
outstanding Voting Stock, the Company shall not be obligated to file a
registration statement pursuant to a registration request made by such
transferee pursuant to Section 2 hereof on more than one occasion. No transfer
of registration rights pursuant to this Section 11 shall be effective unless the
Company has received written notice from the Holder of an intention to transfer
at least 20 days prior to the Holder's entering into a binding agreement to
transfer Registrable Securities (ten days in the event of an unsolicited offer).
Such notice need not contain proposed terms or name a proposed Permitted
Transferee. On or before the time of the transfer, the Company shall receive a
written notice stating the name and address of any Permitted Transferee and
identifying the number and/or aggregate principal amount of Registrable
Securities with respect to which the rights under this Agreement are being
transferred and the scope of the rights so transferred. In connection with any
such transfer, the term BCC, as used in this Agreement (other than in Section 12
and Section 2(a)(iv)), shall, where appropriate to assign the rights and
obligations hereunder to such Permitted Transferee, be deemed to refer to the
Permitted Transferee of such Registrable Securities. BCC and any Permitted
Transferees may exercise the registration rights hereunder in such priority, as
among themselves, as they shall agree among themselves, and the Company shall
observe, any such agreements of which it shall have notice as provided above.
(b) After any such transfer, the transferring Holder shall
retain its rights under this Agreement with respect to all other Registrable
Securities owned by such transferring Holder.
(c) Upon the request of the transferring Holder, the Company
shall execute an agreement with a Permitted Transferee substantially similar to
this Agreement.
12. PURCHASE OPTION. For so long as BCC owns at least 33 1/3% of the
voting power of the outstanding Voting Stock of the Company, the Company grants
to BCC a continuing right to purchase shares of Voting Stock, Other Voting
Securities, and, in certain circumstances described below, certain other
securities of the Company upon the following terms and conditions.
(a) During the Consolidated Return Period, the Company shall
notify BCC in writing of its intention to issue any security that does not
constitute Voting Stock or Other Voting Securities (other than an issuance
described in paragraph (h) of this Section 12). Within 15 calendar days of such
notice from the Company to BCC, BCC may provide the Company with a letter from
its legal counsel stating such counsel's opinion that the securities proposed to
be issued by the Company may reasonably be considered "stock" for purposes of
determining whether the Company and its subsidiaries are properly a member of
the Company, affiliated group for purposes of filing a consolidated federal
income tax return under Section 1504 of the Internal Revenue Code of 1986, as
amended from time to time (or any successor or additional section dealing with
the inclusion of an entity within an affiliated group for purposes of
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filing a consolidated federal income tax return). If BCC delivers such opinion
to the Company, the securities to which such opinion relates ("Other Covered
Securities") will be subject to the provisions of this Section 12. The Company,
in connection with the delivery of the notice pursuant to this paragraph (a),
may also deliver an Offer pursuant to paragraph (b) with respect to such
securities, which Offer may be conditional on such securities constituting Other
Covered Securities. If such an Offer is delivered, the period to provide an
opinion of counsel under paragraph (a) and the period in which BCC may accept
the Offer under paragraph (b) shall run concurrently.
(b) If the Company proposes to issue any shares of Voting
Stock or Other Voting Securities or, during the Consolidated Return Period,
Other Covered Securities ("Offered Securities") to any person other than BCC or
any of its Affiliates (except an issuance described in paragraph (h)), it shall
deliver to BCC written notice of such intention to sell such Offered Securities
(the "Offer"), which notice shall (i) include a reasonably detailed term sheet
specifying (i) the number or principal amount of the Offered Securities, (ii)
the proposed issue price or other applicable pricing terms of the Offered
Securities (determined as set forth in paragraph (d) below), (iii) all other
material terms of the Offered Securities and their issuance, and (iv) that the
independent directors of the Company have approved the terms of the proposed
issuance of the Offered Securities, BCC shall then have 15 calendar days from
receipt of the Offer in which to elect by written notice to the Company (i) to
accept such Offer and purchase all of the Offered Securities described in the
Offer; (ii) to accept such offer with respect to a portion of the Offered
Securities (subject to paragraph (c) below); (iii) to exercise its rights
pursuant to paragraph (d)(ii) below; or (iv) to reject the Offer. The failure by
BCC to elect to accept an Offer (either in whole or in part), or the delivery of
an acceptance that is late or that varies the price or other pricing terms of
the Offered Security specified in the Offer (except for the exercise of BCC's
rights contained in paragraph (d)(ii) below), shall be deemed an election by BCC
to reject the Offer.
(c) BCC may not accept an Offer with respect to less than all
of the Offered Securities if the managing underwriter or other independent
marketing agent retained by the Company, in connection with its proposed
issuance of the Offered Securities, determines that the reduction in the number
or principal amount of the Offered Securities that would be available for sale
to persons other than BCC as a result of BCC's acceptance would, in its opinion,
materially and adversely affect the terms obtainable by the Company in the sale
of such Offered Securities to persons other than BCC. If BCC disagrees with the
determination made by such underwriter or marketing agent, the Company will
submit such issue to the determination of a nationally recognized investment
banking firm acceptable to both BCC and the Company, whose determination shall
be final and binding. Any determination by the Company's underwriter or
marketing agent or by the investment banking, firm chosen at the request of BCC
that the size of BCC's purchase would materially and adversely affect the terms
obtainable by the Company with respect to the remainder of the Offered
Securities, will also include a determination of the size of the purchase, if
any, by BCC which would not have such effect, and upon such determination, BCC
shall again be entitled to elect, at any time within 15 calendar days from
receipt by BCC of such
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determination, to purchase (i) all of the Offered Securities, (ii) such smaller
portion, if any, or (iii) none of the Offered Securities.
(d) (i) If BCC accepts the Offer with respect to all of
the Offered Securities, the price payable by BCC per Offered Security shall be
(A) if the Offered Securities are of a class or series listed on a national
securities exchange or authorized for quotation on a national market quotation
system, the average of the closing prices, regular way, of such security on such
exchange or quotation system on the five trading days for which such price is
reported immediately preceding the date of the Offer, and (B) if the Offered
Securities are not so listed or quoted, the price (which term, as used in this
subparagraph (d), shall include in the case of options, warrants, or other
convertible or exchangeable securities generally, a specification of the
applicable exercise price, strike price, or conversion or exchange premium, and
in the case of convertible or exchangeable debt securities, the interest rate
per annum applicable thereto) determined by a committee of independent directors
of the Company as that which might be reasonably obtained by the Company in the
market at such time.
(ii) If BCC believes that the price determined
pursuant to clause (B) of the preceding subparagraph (d)(i) cannot be obtained
by the Company for the Offered Securities in the market at the time of the
Offer, BCC shall be permitted to request, at any time within 15 days of its
receipt of the Offer from the Company, that a nationally recognized investment
banking firm acceptable to both BCC and the Company determine the price at
which, in such firm's opinion, such security could be sold in the market as of
the date of such firm's opinion. Upon delivery of such opinion to the Company,
(x) the Company will notify BCC within five business days whether it is willing
the sell the Offered Securities at such price and (y) if the Company is willing
to so sell such securities, BCC will then have the option, exercisable within 15
calendar days of notice from the Company of its willingness to sell the Offered
Securities, to purchase (A) all of the Offered Securities at a price equal to
the price determined by the investment banking firm, or (B) a portion of the
Offered Securities in accordance with paragraphs (c), (d)(iii), and (f) of this
Section 12.
(iii) If BCC accepts an Offer with respect to only a
portion of the Offered Securities, the price to be paid by BCC for each of the
Offered Securities shall be equal to the price paid by the other purchaser or
purchasers (other than an underwriter) of the Offered Securities (or if there is
more than one such price, the average of the prices so paid) in connection with
issuance and sale thereof by the Company. The Company shall not pay or cause to
be paid, directly or indirectly, any portion of the price to be paid by BCC in
connection with the purchase of a portion of the Offered Securities to any
person as an underwriting discount or commission, selling concession, brokerage
commission, or other similar selling expense.
(e) Upon acceptance by BCC of any Offer for all of the Offered
Securities, the parties shall consummate the sale of the Offered Securities
accepted for purchase by BCC (the "Accepted Securities") on the following terms
and conditions:
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(i) BCC shall pay in cash to the Company an amount
equal to the purchase price for the Accepted Securities as provided in paragraph
(d) above, not later than 45 days after communication by BCC to the Company of
its acceptance of the Offer, or such later date as agreed between BCC and the
Company (with the approval of the Company's independent directors); and
(ii) Upon payment by BCC of the purchase price, the
Company shall deliver to BCC certificates evidencing the Accepted Securities
free and clear of any liens or other security interests.
(f) Upon acceptance by BCC of any Offer for a portion of the
Offered Securities, the parties shall consummate the sale of the Accepted
Securities contemporaneously with the closing of the sale of the Offered
Securities to other purchasers thereof (or if there is more than one such
closing contemplated, contemporaneously with the first such closing). At such
closing:
(i) BCC shall pay in cash to the Company an amount
equal to the purchase price for the Accepted Securities; and
(ii) Upon payment by BCC of the purchase price, the
Company shall deliver to BCC certificates evidencing the Accepted Securities
free and clear of any liens or other security interests.
(g) If BCC accepts an Offer in part or rejects an Offer, the
Offered Securities described in the Offer (or such portion thereof that is not
being purchased by BCC) may be sold by the Company to any person for such price
and other pricing terms (including such exercise price, strike price, conversion
or exchange premium, and/or interest rate, as applicable) as the Company shall
determine and upon other terms not substantially more favorable to the purchaser
(either individually or in the aggregate) from those set forth in the Offer at
any time within 120 calendar days following BCC's nonacceptance of such Offer.
If the Offered Securities are not sold by the Company within the time and on the
terms set forth in the preceding sentence, any subsequent sale shall again be
subject to the right of BCC to purchase such securities pursuant to this Section
12. Any failure by BCC to accept an Offer shall not affect the Company's
continuing obligation to offer any other Offered Securities to BCC prior to any
sale, transfer, or assignment to any person.
(h) The rights of BCC under this Section 12 shall not apply to
any issuance of securities of the Company (i) pursuant to stock option or other
executive or employee benefit or compensation plans, or (ii) as consideration
payable to or for the benefit of the owners of other businesses or other assets
to be acquired by the Company, or (iii) pursuant to an exchange offer for
outstanding securities of the Company which does not have the effect of
decreasing BCC's percentage ownership of the Voting Stock of the Company (on a
fully diluted basis), or (iv) pursuant to the exercise or conversion of
outstanding Other Voting Securities as to which the procedures of this Section
12 have been complied with.
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(i) BCC may transfer its right to purchase all or a specified
portion of an issue of Offered Securities in accordance with the terms of this
Section 12 to any Affiliate of BCC. The rights of BCC under this Section 12
shall be automatically transferred in their entirety to any successor to BCC by
merger, consolidation, or transfer of all or substantially all of BCC's assets.
(j) BCC and the Company shall bear their own expenses in
connection with the transactions contemplated by this Section 12, except that
the cost of any investment banking firm retained to make a determination
pursuant to either paragraph (c) or (d) above shall be shared equally by BCC and
the Company.
13. MISCELLANEOUS.
(a) INJUNCTIONS. Each party acknowledges and agrees that
irreparable damage would occur in the event that any of the provisions of this
Agreement was not performed in accordance with its specific terms or was
otherwise breached. Therefore, each party shall be entitled to an injunction or
injunctions to prevent breaches of the provisions of this Agreement and to
enforce specifically the terms and provisions hereof in any court having
jurisdiction, such remedy being in addition to any other remedy to which such
party may be entitled at law or in equity.
(b) SEVERABILITY. If any term or provision of this Agreement
is held by a court of competent jurisdiction to be invalid, void, or
unenforceable, the remainder of the terms and provisions set forth herein shall
remain in full force and effect and shall in no way be affected, impaired, or
invalidated, and each of the parties shall use its best efforts to find and
employ an alternative means to achieve the same or substantially the same result
as that contemplated by such term or provision.
(c) FURTHER ASSURANCES. Subject to the specific terms of this
Agreement, each of the parties hereto shall make, execute, acknowledge, and
deliver such other instruments and documents, and take all such other actions,
as may be reasonably required in order to effectuate the purposes of this
Agreement and to consummate the transactions contemplated hereby.
(d) WAIVERS, ETC. Except as otherwise expressly set forth in
this Agreement, no failure or delay on the part of either party in exercising
any power or right hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of any such right or power, or any abandonment or
discontinuance of steps to enforce such a right or power, preclude any other or
further exercise thereof or the exercise of any other right or power. Except as
otherwise expressly set forth in this Agreement, no modification or waiver of
any provision of this Agreement, nor consent to any departure therefrom, shall
in any event be effective unless the same shall be in writing and signed by an
authorized officer of each of the parties, and then such waiver or consent shall
be effective only in the specific instance and for the purpose for which given.
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(e) ENTIRE AGREEMENT. This Agreement contains the final and
complete understanding of the parties with respect to its subject matter. This
Agreement supersedes all prior agreements and understandings between the
parties, whether written, or oral, with respect to the subject matter hereof.
The paragraph headings contained in this Agreement are for reference purposes
only and shall not affect in any manner the meaning or interpretation of this
Agreement.
(f) COUNTERPARTS. For the convenience of the parties, this
Agreement may be executed in any number of counterparts, each of which shall be
deemed to be an original, but all of which together shall be one and the same
instrument.
(g) AMENDMENT. This Agreement may be amended only by a written
instrument duly executed by an authorized officer of each of the parties.
(h) NOTICES. Unless expressly provided herein, all notices,
claims, certificates, requests, demands, and other communications hereunder
shall be in writing and shall be deemed to be duly given (i) when personally
delivered, or (ii) if mailed registered or certified mail, postage prepaid,
return receipt requested, on the date the return receipt is executed or the
letter refused by the addressee or its agent, or (iii) if sent by overnight
courier which delivers only upon the signed receipt of the addressee, on the
date the receipt acknowledgment is executed or refused by the addressee or its
agent, or (iv) if sent by facsimile or other generally accepted means of
electronic transmission, on the date confirmation of transmission is received
(provided that a copy of any notice delivered pursuant to this clause (iv) shall
also be sent pursuant to clause (ii) or (iii)), addressed as follows or sent by
facsimile to the following number (or to such other address or facsimile number
for a party as it shall have specified by like notice):
(i) if to BCC, to:
Boise Cascade Corporation
ATTENTION General Counsel
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇
▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: 208/384-4912
(ii) if to the Company, to
Boise Cascade Office Products Corporation
ATTENTION Chief Financial Officer
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: 708/773-7107
(iii) if to a Holder of Registrable Securities, to
the name and address as the same appear in the security transfer books of the
Company, or to such
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other address as either party (or other Holders of Registrable Securities) may,
from time to time, designate in a written notice in a like manner.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD
TO THE CONFLICTS OF LAWS PRINCIPLES THEREOF.
(j) ASSIGNMENT. Except as specifically provided herein, the
parties may not assign their rights under this Agreement. The Company may not
delegate its obligations under this Agreement.
(k) CONFLICTING AGREEMENT. The Company shall not hereafter
grant any rights to any person to register securities of the Company, the
exercise of which would conflict with the rights granted to the Holders of the
Registrable Securities under this Agreement. The Company shall not hereafter
grant to any person demand registration rights permitting it to exclude the
Holders from including Registrable Securities in a registration on behalf of
such person on a basis more favorable than that set forth in Section 2(d) hereof
with respect to the Holders.
IN WITNESS WHEREOF, BCC and the Company have caused this Agreement to
be duly executed by their authorized representative as of the date first above
written.
BOISE CASCADE CORPORATION
By /s/ A. ▇▇▇ ▇▇▇▇▇
---------------------
Title SENIOR VICE PRESIDENT
---------------------
BOISE CASCADE OFFICE PRODUCTS
CORPORATION
By /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------
Title VICE PRESIDENT
---------------------
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