CONTINGENT VALUE RIGHTS AGREEMENT
Exhibit
99.2
Holder: Please
be sure to fax your executed signature page and your Annex A
to
Xxxxx Xxxxx at Terrapin Partners Venture Partnership at (000)
000-0000.
THE
CONTINGENT VALUE RIGHTS EVIDENCED BY THIS CONTINGENT VALUE RIGHTS AGREEMENT
HAVE
NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER
ANY
STATE SECURITIES LAWS AND MAY NOT BE TRANSFERRED EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT OR IN ACCORDANCE WITH A WRITTEN OPINION OF COUNSEL OR
OTHER DOCUMENTATION REASONABLY SATISFACTORY TO THE GRANTORS AND THE COMPANY
CONFIRMING THAT SUCH TRANSFER IS EXEMPT FROM REGISTRATION UNDER APPLICABLE
FEDERAL AND STATE SECURITIES LAWS.
THIS
CONTINGENT VALUE RIGHTS AGREEMENT (the “Agreement”) is dated
as of February ___, 2008 (the “Grant Date”) and is
by and among Terrapin Partners Venture Partnership, a California general
partnership (“Terrapin”), Boise
Cascade, L.L.C., a Delaware limited liability company (“Boise Cascade” and,
together with Terrapin, each, a “Grantor”, and
collectively, the “Grantors”), Aldabra
2
Acquisition Corp., a Delaware Corporation (the “Company”) and the
party named as the Holder on the signature page hereto (the “Holder”). The
Grantors, the Company and the Holder are sometimes individually referred to
herein as a “Party” and collectively as the “Parties”.
WHEREAS,
the Grantors wish to grant, and the Holder wishes to receive, certain contingent
value rights to receive payments in cash or in shares (“Shares”) of the
common stock, par value $.0001 per share (the “Common Stock”), of the Company;
and
WHEREAS,
the rights described in the immediately foregoing whereas clause are sometimes
referred to herein individually as a “CVR” and collectively
as “CVRs”;
and
WHEREAS,
in exchange for the CVRs, the Holder is agreeing to vote in favor of certain
proposals recommended by the management of the Company for approval at the
special meeting of stockholders of the Company to be held on February 5, 2008
and any adjournment or postponement thereof (the “Special
Meeting”); and
WHEREAS,
the Company, which will benefit from the foregoing actions, wishes to undertake
to register Shares which may be transferred to the Holders pursuant to the
CVRs
for public resale; and
WHEREAS,
the Parties desire to enter into this Agreement to set forth the terms and
conditions of the foregoing;
NOW,
THEREFORE, in consideration of the mutual covenants set forth herein and other
good and valuable consideration, the receipt and adequacy of which is hereby
acknowledged, the Parties, intending to be legally bound, agree as
follows:
1. Grant
of CVRs.
Subject to and upon the terms and conditions set forth in this Agreement, the
Grantors hereby grant to the Holder, as of the Grant Date, the contingent value
rights described in Section 2 below associated with the number of shares of
Common Stock set forth beneath the Holder’s signature hereto (the “Base Shares”) held by
the Holder in the amount of one (1) CVR for each Base Share.
2. Settlement
of
CVRs.
(a) For
purposes of this Agreement:
(i) “Anniversary
Price”
means the arithmetical average of the volume weighted average trading
price
(VWAP) of the Common Stock as reported by Bloomberg Professional Service (“Bloomberg”) for the
period beginning 9:30 a.m., New York City time and ending at 4:00 p.m., New
York
City time for the 30 trading days prior to February 5, 2009.
(ii) “Target
Price” means
$10.50 per Share.
(iii) “CVR
Amount” means the
lesser of (x) the amount, if any, by which the Target Price exceeds the
Anniversary Price and (y) $1.00.
(b) In
order
to receive a settlement of the CVRs, the Holder shall, neither earlier than
February 6, 2009 nor later than February 15, 2009, give written notice to the
Grantors requesting such settlement (a “Settlement
Notice”). Such Settlement Notice shall also include the
Holder’s certification that the Holder has complied with Sections 7 and 8 of
this Agreement, information on where the CVR Payment (as defined in Section
2(c)
below) is to be delivered and, to the extent that a Grantor is, in accordance
with Section 2(c) below, paying the CVR Payment with Shares, representations
and
warranties (to be true and correct as of such date and as of the date of
transfer) in favor of such Grantor(s), that such Holder is an “accredited
investor” within the meaning of Regulation D under the Securities Act of 1933,
as amended (the “Securities Act”),
that such Shares are being acquired for such Holder's own account and not with
a
view to, or intention of, distribution thereof in violation of the Securities
Act or any applicable state securities laws, and that such Holder has reviewed
the public securities law filings of the Company and had in its possession
all
information requested by such Holder with respect to the
Shares. Subject to adjustment as provided herein, within ten (10)
days after receipt of a Settlement Notice delivered in accordance with the
first
sentence of this Section 2(b), the Grantors shall, in accordance with Section
2(c), pay or transfer (the “CVR Payment”) to the
Holder an amount determined by multiplying (x) the number of CVRs held by such
Holder by (y) the CVR Amount. No CVR Payment shall be made if the
Anniversary Price equals or exceeds the Target Price.
(c) The
CVR
Payment, if any, shall be paid by each Grantor, in its sole discretion, in
cash,
shares of Common Stock or a combination of cash and Shares. The
Grantors shall be jointly and severally liable to the Holder for the CVR
Payment, but as between the Grantors, each Grantor shall be individually liable
for 50% of the CVR Payment. If the obligation to make the CVR Payment
is satisfied by the Grantors collectively, the obligation of each Grantor to
make the CVR Payment shall be satisfied. Each Grantor shall pay its portion
of
the CVR Payment in Shares unless, prior to commencement of the 30 trading day
period for calculating the Anniversary Price, such Grantor publicly announces
or
give notices to the Holder that it is electing to pay its portion of the CVR
Payment in cash or a combination of cash and Shares. To the extent
Boise Cascade elects to satisfy any portion of the CVR Payment for which it
is
responsible in Shares and such Shares have been distributed to Madison Dearborn
Capital Partners IV, L.P. or any of its other affiliates such that Boise Cascade
is unable to satisfy its obligations hereunder, Boise Cascade shall arrange
for
such affiliates to transfer such Shares to the Holder. For purposes
of determining the number of Shares which are to be transferred to the Holder
upon settlement of CVRs in whole or in part with Shares, the value of each
share
of Common Stock shall equal the higher of the Anniversary Price or
$9.00. Each Grantor (or, in the case of Boise Cascade, its
affiliates) shall retain such number of Shares as are necessary to make CVR
Payment in full.
(d) The
CVRs
shall not be represented by separate certificates, but shall be contract rights
hereunder evidenced by a book-entry system maintained by the Grantors or any
agent appointed by them.
3. Certain
Adjustments. In the event of any extraordinary dividend or any
change in the outstanding shares of capital stock or the capital structure
of
the Company by reason of any stock dividend, stock split
or
reverse stock split, exchange of shares, recapitalization or reclassification
of
its capital stock, or any similar change affecting the Company’s outstanding
shares of capital stock or capital structure, or any merger, consolidation
or
other business combination involving the Company, the Grantors shall make
appropriate and equitable adjustments to, without duplication, the Anniversary
Price, the Target Price and the CVR Amount, the number and kind of shares or
other property (including cash) to be issued upon settlement of an outstanding
CVR, and the number of Base Shares (and CVRs associated therewith).
4. Registration. The
Company shall use its reasonable best efforts to cause a registration statement
registering the resale of the maximum number of Shares which may constitute
the
CVR Payment under the Securities Act to become effective on or before February
27, 2009 and remain effective for a period of at least one year. The
Parties acknowledge and agree that except as set forth in the preceding
sentence, neither the Grantors nor the Company have any obligation to register
the resale of the CVRs or any Shares transferred to the Holder as part of the
CVR Payment.
5. Compliance
with Securities
Laws.
(a) The
Holder represents and warrants that the Holder is acquiring the CVRs for the
Holder’s own account and for the purpose of investment and not with a view to
the sale or distribution thereof. The Holder understands that the
CVRs and the shares of Common Stock that may be issued upon settlement of the
CVRs will not have been registered under the Securities Act or any state
securities laws and that the CVRs and the shares of Common Stock which may
be
transferred to the Holder upon settlement of the CVRs must be held indefinitely
unless a subsequent disposition thereof is registered under the Securities
Act
and applicable state securities laws or are exempt from registration as provided
herein.
(b) The
Holder represents, covenants, and agrees that the Holder will not assign its
rights hereunder or sell or otherwise dispose of the CVRs or of any Shares
transferred upon settlement of the CVRs in the absence of (i) registration
under the Securities Act and applicable state securities laws or (ii) a
written opinion of counsel or other documentation reasonably satisfactory to
the
Grantors and the Company confirming that no registration is required for such
assignment and disposition. The certificates representing the shares of Common
Stock transferred upon settlement of the CVRs shall have stamped or imprinted
thereon or affixed thereto a legend to the following effect:
The
securities represented by this certificate have not been registered under the
Securities Act of 1933 or any state securities laws and may not be transferred
except pursuant to an effective registration statement or in accordance with
a
written opinion of counsel, reasonably satisfactory to the Company, to the
effect that such transfer is exempt from registration under applicable federal
and state securities laws.
6. Additional
Representations,
Warranties, and Covenants of the Holder. The Holder represents
and warrants to the Grantors that (a) the Holder is the beneficial owner of
the
Base Shares; (b) the Holder has the sole and exclusive right to direct the
voting of the Base Shares and all other Shares beneficially owned by such Holder
at the Special Meeting; and (c) set forth in Annex A hereto are
true and correct copies of documentation confirming the matters set forth in
the
preceding clauses (a) and (b). The Holder shall further cause the
custodian of the Holder’s Shares (i) to cooperate with any request by the
Grantors for proof of the Holder’s fulfillment of its obligations under Section
7 hereof and (ii) to release the name of such Holder to the Grantors if such
Holder is an objecting beneficial owner (OBO).
7. Voting
Agreements. The Holder will cause (a) each Share of which the
Holder is the beneficial owner and (b) each other Share of which such Holder
has
the right to direct the voting to be voted in favor of each proposal set forth
in the definitive proxy statement of the Company filed with the Securities
and
Exchange
Commission on January 23, 2008, as the same may be amended or supplemented
from
time to time, or otherwise as Xxxxxx Xxxxxx or Xxxxx Xxxxx may direct on behalf
of the Company in writing. The Holder further agrees not to
exercise any conversion rights in respect of such Shares and hereby revokes
any
such exercise previously made. The Holder need not retain ownership
of the Base Shares following the execution hereof so long as the Holder retains
the power to vote the Base Shares at the Special Meeting.
8. Prohibition
on Certain
Transactions. The Holder and each direct or indirect assignee
under this Agreement, on behalf of itself and its affiliates, successors and
assigns, agrees that it will not, at any time in the 30 trading day period
prior
to February 5, 2009, directly or indirectly, offer to “short sell”, contract to
“short sell” or otherwise “short sell” or encourage others to “short sell” any
securities of the Company, including, without limitation, Shares. For
purposes of this Agreement, “short selling” shall include any sale, any trade in
any option or other derivative security, any hedging transaction relating to
the
securities of the Company or any other transaction, in each case intended to
affect the price of the Common Stock. The Holder represents and
warrants to the Grantors, and it shall be a condition to any transfer hereunder
that each direct or indirect transferee represent and warrant to the Company
that as of the time of the transfer, neither it nor any of its affiliates holds
or is a party to any option, security, instrument or agreement that would
violate the provisions of this Section if acquired after the time it becomes
a
party to this Agreement. Without limiting the remedies of the
Grantors as a result of any breach, if the Holder breaches the restrictions
of
this Section on short selling, the Holder will forfeit and relinquish to the
Company without compensation one CVR for each Share that such Holder short
sells
in breach of this Section.
9. Cancellation
of
CVRs. If prior to February 5, 2009, the closing price of the
Shares as reported on Bloomberg is $10.50 or greater for (a) any 20 days of
any
period of 30 consecutive trading days or (b) 10 consecutive trading days, then
the CVRs shall automatically be cancelled and be of no force or effect, and
the
Grantors shall have no obligations hereunder or otherwise in respect of the
CVRs.
10. Conditions
Precedent to
Obligations of the Grantors and the Company; Termination.
(a) In
no
event shall any Grantor or the Company have any obligations under Sections
2, 3,
or 4 of this Agreement (including, without limitation, any obligation to pay
the
CVR Payment) unless the transactions contemplated by that certain Purchase
and
Sale Agreement, dated as of September 7, 2007, by and among Boise Cascade,
Boise
Paper Holdings, L.L.C., Boise White Paper, L.L.C., Boise Packaging &
Newsprint, L.L.C., Boise Cascade Transportation Holdings Corp., the Company
and
Aldabra Sub L.L.C. (as the same has been and may be amended from time to time,
the “Purchase
Agreement”) are closed substantially on the terms set forth in that
certain definitive proxy statement of the Company, dated as of January 23,
2008
(the date of the closing of such transactions being the “Closing
Date”).
(b) All
rights and obligations of the Parties shall automatically and without further
action on the part of any Party be terminated without further liability to
the
Parties if the Purchase Agreement is terminated in accordance with its terms;
except that no such termination shall release any Party from liability for
breach of this Agreement arising prior to such termination.
11. Specific
Performance. The Holder agrees that irreparable damage would
occur in the event that any of the provisions of this Agreement were not
performed in accordance with its specific terms or were otherwise breached.
It
is accordingly agreed that the Grantors shall be entitled, without the posting
of any bond, to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this
Agreement. Without limiting any other remedies to which Grantors may be entitled
at law or in equity, the Holder agrees that if the Holder breaches any of its
representations,
warranties,
or obligations under Sections 5, 6, 7 or 8 hereof, the Grantors shall have
no
obligation to deliver the CVR Payment to the Holder or any transferee
thereof.
12. Notices.
Any notice
or other document required or permitted to be given or delivered to any Party
shall be delivered by hand or by reputable express courier or sent by facsimile
(with confirmation of delivery generated contemporaneously by the sending
machine) to the address or facsimile number for such Party appearing on the
signature page hereto and shall be deemed given when received. Each
Party may update its notice information by sending notice thereof to the other
Parties in accordance with this Section.
13. No
Rights as
Stockholder. A Holder shall not be deemed to be the holder of, or to have
any of the rights of a holder of Common Stock with respect to, any Shares
transferable upon settlement of the CVRs until such Shares, if any, are actually
transferred.
14. Taxes. The
Holder shall be responsible for all taxes arising out of or relating to the
grant, ownership or settlement of any CVRs other than any taxes imposed on
the
income of any Grantor.
15. Amendments.
The
provisions of this Agreement may not be amended, supplemented, waived or changed
orally, except by a writing signed by the Party as to whom enforcement of any
such amendment, supplement, waiver or modification is sought and making specific
reference to this Agreement.
16. Further
Assurances.
The Parties hereby agree from time to time to execute and deliver such other
documents and take such other actions which may be convenient or necessary
to
effectively and completely carry out the intentions of this
Agreement.
17. Binding
Effect. All
of the terms and provisions of this Agreement shall be binding upon, inure
to
the benefit of, and be enforceable by the Parties and their respective
administrators, executors, legal representatives, heirs, successors and
permitted assigns.
18. Governing
Law; Jurisdiction;
Venue. This Agreement and all transactions contemplated by this Agreement
shall be governed by, and construed and enforced in accordance with, the
internal laws of the State of New York, without regard to principles of
conflicts of laws. Any action arising out of or relating to this
Agreement shall be brought exclusively in the state or Federal courts sitting
in
New York, New York. Each Party hereby submits to the jurisdiction of
such courts and waives any claim that such action has been brought in an
inconvenient forum.
19. WAIVER
OF JURY TRIAL. Each Party hereby irrevocably waives the right to
trial by jury in connection with any action arising out of or relating to this
Agreement.
20. Assignment. The
Holder may transfer CVRs to one or more third parties in transactions meeting
the requirements of Section 5(b)
hereof, provided that each such transfer shall be for a number of CVRs equal
to
the greater of (a) 50,000 CVRs and (b) 20% of the number of Base Shares
originally held by the original Holder hereunder, except that if the original
Holder at any time holds fewer than 50,000 CVRs, such original Holder (or any
successor Holder) may transfer all such CVRs to a single third
party. The Holder shall give prompt notice to the Grantors of any
transfer of the Holder’s CVRs, which notice shall include copies of the
operative transfer documents signed by the transferor and transferee and
notarized. Upon any assignment and transfer of any CVRs in accordance
with the terms of this Agreement, the transferee shall be the “Holder” of such
transferred CVRs for purposes of this Agreement, and shall have all of the
rights and obligations of the Holder hereunder in respect of such CVRs, and
the
transferor shall have no further rights or obligations with respect to such
transferred CVRs; provided that no
such
transfer shall release a Holder from liability for breach of this Agreement
arising prior to the effectiveness of such
transfer. The
CVRs may be transferred separately from the Base Shares. Except as
provided above in this Section, the Holder may not assign its rights under
this
Agreement, in whole or in part, or transfer the CVRs associated herewith without
the prior written consent of the Grantors, and any assignment or transfer in
violation hereof shall be void and of no effect.
21. Entire
Agreement.
This Agreement represents the entire understanding and agreement among the
Parties with respect to the subject matter hereof, and supersedes all other
prior or contemporaneous negotiations, understandings and representations (if
any) made by or among the Parties.
22. Counterparts;
Execution by
Facsimile. This Agreement may be executed in two or more
counterparts, all of which taken together shall constitute a single
agreement. Any Party may deliver an executed counterpart of this
Agreement by facsimile or other electronic transmission (e.g., whether
transmitted by telecopier or by PDF or similar image file transmitted via
e-mail), and any facsimile or electronically transmitted signature page shall
be
effective as if it were an original.
(The
remainder of this page has intentionally been left blank.)
IN
WITNESS WHEREOF, each of the Parties has caused this Agreement to be executed
as
of the day first set forth above.
|
GRANTORS:
|
|
|
TERRAPIN
PARTNERS VENTURE PARTNERSHIP
By:____________________________
Name:
Title:
Address
for Notices:
c/o
Terrapin Partners LLC
000
Xxxxxxx Xxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attn.: Xxxxx
Xxxxx
Facsimile
No.: (000) 000-0000
|
BOISE
CASCADE, L.L.C.
By:____________________________
Name:
Title:
Address
for Notices:
0000
X. Xxxxxxxxx
Xxxxx,
XX 00000
Attn.: General
Counsel
Facsimile
No.: (000) 000-0000
|
|
COMPANY:
|
HOLDER :
|
|
XXXXXXX
0 ACQUISITION CORP.
By:____________________________
Name:
Title:
Address
for Notices:
c/o
Terrapin Partners LLC
000
Xxxxxxx Xxx, 00xx Xxxxx
Xxx
Xxxx, XX 00000
Attn.: Xxxxx
Xxxxx
Facsimile
No.: (000) 000-0000
|
Printed
Name of Holder:
_____________________________________
Signature
of Holder:
By:____________________________
Name:
Title:
Number
of Base Shares: __________________
Address
for Notices:
Facsimile
No.:
|
Annex
A
Documentary
Proof of
Additional Representations and Warranties of the Holder
(Holder
to attach per Section 6 of the Agreement)
