Exhibit 10.5
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement ("AGREEMENT") is made this 29th day
of October, 2004 by and among Boise Cascade Corporation, a Delaware corporation
(to be renamed "OfficeMax Incorporated" on November 1, 2004, "BCC"). Forest
Products Holdings, L.L.C., a Delaware limited liability company ("FPH"), and
Boise Cascade Holdings, L.L.C., a Delaware limited liability company ("BOISE
HOLDINGS").
PRELIMINARY RECITALS
1. BCC, FPH and Boise Land & Timber Corp., a Delaware corporation
("TIMBER HOLDING CO."). are parties to that certain Asset Purchase Agreement,
dated as of July 26, 2004 (as amended from time to time in accordance with its
terms, the "ASSET PURCHASE AGREEMENT");
2. Pursuant to and subject to the terms and conditions of the Asset
Purchase Agreement, at the closing of the transactions contemplated thereby,
certain wholly-owned Subsidiaries of Boise Holdings are acquiring substantially
all of assets of the forest products business of BCC and certain of its
Subsidiaries, and certain of Timber Holding Co.'s Affiliates are acquiring
substantially all of the timberland assets of BCC and in connection therewith,
BCC is acquiring shares of Boise Holdings;
3. As an inducement to BCC and FPH to enter into and consummate the
transactions contemplated by the Asset Purchase Agreement, Boise Holdings has
agreed to provide certain registration rights to BCC and FPH and transferees (to
the extent provided herein) of their equity securities of Boise Holdings as
provided herein.
NOW, THEREFORE, the parties hereto agree as follows:
1. CERTAIN DEFINITIONS.
"COMMON STOCK" means the Series B Common and, in the event Boise
Holdings has hereafter converted into a corporation or other entity form, the
series of common stock or other comparable series of common equity securities of
Boise Holdings.
"INITIAL PUBLIC OFFERING" shall mean the first underwritten public
offering pursuant to an effective registration statement under the Securities
Act (or any comparable form under any similar statute then in force), covering
the offer and sale of Common Stock.
"LLC AGREEMENT" means that certain limited liability company agreement
governing the affairs of Boise Holdings, by and among FPH, BCC, and the other
holders of unit membership interests in Boise Holdings, as amended from time to
time in accordance with its terms.
"PERSON" means an individual, a partnership, a corporation, an
association, a joint stock company, a trust, a joint venture, a limited
liability company or other unincorporated organization, and a governmental
entity or any department, agency or political subdivision thereof.
"REGISTRABLE SECURITIES" means, as of any date: (i) Common Stock
issued on the date hereof to BCC pursuant to the Asset Purchase Agreement and
issued to FPH or any of its Affiliates on or prior to the date hereof; (ii) any
Common Stock issued or issuable with respect to the Common Stock in the
preceding clause (i) by way of or in connection with a stock dividend, stock
split, combination of shares, share subdivision, share exchange,
recapitalization, merger, consolidation or other reorganization or transaction,
and (iii) any other Common Stock otherwise acquired by BCC or FPH (including
upon conversion of any other shares of capital stock). As of any date,
Registrable Securities owned by BCC or any of its Affiliates are sometimes
referred to herein as "BCC REGISTRABLE SECURITIES." As of any date, Registrable
Securities owned by FPH or any of its Affiliates are sometimes referred to
herein as "FPH REGISTRABLE SECURITIES." As of any date, Registrable Securities
owned by any direct or indirect transferee of BCC (other than an Affiliate of
BCC) or by any direct or indirect transferee of FPH (other than an Affiliate of
FPH) are sometimes referred to herein as "TRANSFEREE REGISTRABLE SECURITIES." As
to any particular Registrable Securities, such securities will cease to be
Registrable Securities when they have been distributed to the public pursuant to
a offering registered under the Securities Act of 1933, as amended from time to
time (the "SECURITIES ACT"), or distributed to the public in compliance with
Rule 144 under the Securities Act. For purposes of this Agreement, a Person will
he deemed to be a holder of Registrable Securities whenever such Person has the
right to acquire directly or indirectly such Registrable Securities (upon
conversion or exercise in connection with a transfer of securities or otherwise,
but disregarding any restrictions or limitations upon the exercise of such
right), whether or not such acquisition has actually been effected.
"REGISTRATION EXPENSES" means any and all expenses incident to
performance of, or compliance with any registration of securities pursuant to,
this Agreement, including, without limitation: (i) the fees, disbursements and
expenses of Boise Holdings' counsel and accountants; (ii) the fees,
disbursements and expenses of one or more firms, as applicable pursuant to the
terms of this Agreement, selected as counsel for the holders of the Registrable
Securities in connection with the registration of the securities to be disposed
of; (iii) all expenses, including registration and filing fees, in connection
with the preparation, printing, filing and distribution of the registration
statement, any preliminary prospectus or final prospectus, term sheets and any
other offering documents, and amendments and supplements thereto, and the
mailing and delivering of copies thereof to any underwriters and dealers; (iv)
the cost of printing or producing any underwriting agreements and blue sky or
legal investment memoranda, and any other documents in connection with the
offering, sale or delivery of the securities to be disposed of; (v) all expenses
in connection with the qualification of the securities to be disposed of for
offering and sale under state securities laws, including the fees, disbursements
and expenses of counsel for the underwriters or the holders of the Registrable
Securities in connection with such qualification and in connection with any blue
sky and legal investment 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 securities to be disposed of; (vii) transfer agents'
and registrars' fees and expenses and the fees and expenses of any other agent
or trustee appointed in connection with such offering; (viii) all security
engraving and security printing expenses; (ix)
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all fees, disbursements and expenses payable in connection with the listing of
the securities on any securities exchange or automated interdealer quotation
system and the rating of such securities; (x) any other fees, disbursements and
expenses of underwriters customarily paid by the sellers of securities
(excluding underwriting discounts and commissions); (xi) all liability insurance
expense; and (xii) other out-of-pocket expenses of the holders of the
Registrable Securities participating in such registration. Notwithstanding the
foregoing, each holder of the Registrable Securities and Boise Holdings shall be
responsible for its own internal administrative and similar costs.
"SERIES B COMMON" means the Series B Common Units of Boise Holdings,
having the rights and preferences set forth with respect thereto in the LLC
Agreement.
2. DEMAND REGISTRATIONS.
(a) GENERAL. At any time and from time to time, upon written notice
from the holders of at least 75% of the FPH Registrable Securities requesting
that Boise Holdings effect the registration under the Securities Act of any or
all of the FPH Registrable Securities, Boise Holdings shall effect the
registration (under the Securities Act and applicable state securities laws) of
such securities (and other Registrable Securities subject to Sections 2(c) and
2(d) below) in accordance with such notice, Section 5 below and the other
provisions of this Agreement. At any time and from time to time after the date
(the "TRIGGER DATE") that is the earlier of (i) the date that Boise Holdings'
Initial Public Offering has been consummated (the "IPO DATE") and (ii) the fifth
anniversary of the Closing, upon written notice from the holders of at least 75%
of the BCC Registrable Securities requesting that Boise Holdings effect the
registration under the Securities Act of any or all of the BCC Registrable
Securities, Boise Holdings shall effect the registration (under the Securities
Act and applicable state securities laws) of such securities (and other
Registrable Securities subject to Sections 2(c) and 2(d) below) in accordance
with such notice, Section 5 below and the other provisions of this Agreement;
PROVIDED that, notwithstanding the foregoing, Boise Holdings shall have not have
any obligation to effect any such registration or take other actions required by
this sentence at any time prior to the IPO Date if, at the time such request is
made, BCC does not hold at least 50% of the number of shares of Series B Common
issued to BCC at closing under the Asset Purchase Agreement (as equitably
adjusted for stock splits, stock dividends, stock combinations, reverse stock
splits, recapitalizations or similar events effecting such class or series of
stock). Any notice from holders of FPH Registrable Securities or BCC Registrable
Securities pursuant to this SECTION 2(a) shall specify the approximate number of
Registrable Securities to be registered and the expected per share price range
for the offering. A registration pursuant to this SECTION 2 is sometimes
referred to herein as a "DEMAND REGISTRATION."
(b) LIMITATIONS ON DEMAND REGISTRATIONS: DEMAND REGISTRATION FORMS
AND EXPENSES. The holders of FPH Registrable Securities shall be entitled to
separately request pursuant to this SECTION 2: (i) an unlimited number of
effected registrations on Form S-1 or any similar or successor long form
registration ("LONG-FORM REGISTRATIONS") in which Boise Holdings shall pay all
Registration Expenses, (ii) an unlimited number of registrations on Form S-2 or
S-3 or any similar or successor short form registration ("SHORT-FORM
REGISTRATIONS") in which Boise Holdings shall pay all Registration Expenses; and
(iii) an unlimited number of Long-Form Registrations in which the holders of the
Registrable Securities participating in such
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registration shall pay all Registration Expenses. At and after the Trigger Date,
the holders of BCC Registrable Securities shall be entitled to separately
request pursuant to this SECTION 2: (x) two Long-Form Registrations in which
Boise Holdings shall pay all Registration Expenses, (y) an unlimited number of
Short-Form Registrations in which Boise Holdings shall pay all Registration
Expenses; and (z) five Long-Form Registrations in which the holders of the
Registrable Securities participating in such registration shall pay all
Registration Expenses; PROVIDED that, notwithstanding the foregoing, Boise
Holdings shall have not have any obligation to effect any such registration or
take other actions required by this sentence at any time prior to the IPO Date
if, at the time such request is made, BCC does not hold at least 50% of the
number of shares of Series B Common issued to BCC at closing under the Asset
Purchase Agreement (as equitably adjusted for stock splits, stock dividends,
stock combinations, reverse stock splits, recapitalizations or similar events
effecting such class or series of stock).
For purposes of clause (iii) above and clause (z) above, each holder of
securities included in accordance with this Agreement in any registration
pursuant to clause (iii) or clause (z) above shall pay those Registration
Expenses allocable to the registration of such holder's securities so included,
and any Registration Expenses not so allocable will be borne by all sellers of
securities included in such registration in proportion to the aggregate selling
price of the securities to be so registered. Boise Holdings shall pay and be
solely responsible for Registration Expenses with respect to registrations
effected under clauses (i), (ii), (x) and (y) above.
After Boise Holdings has become subject to the Securities Exchange Act of 1934,
as amended from time to time ("EXCHANGE ACT"), Boise Holdings will use its
reasonable best efforts to make Short-Form Registrations available for the sale
of Registrable Securities. Demand Registrations will be Short Form Registrations
whenever Boise Holdings is permitted to use any applicable short form; provided,
however, that Boise Holdings shall nevertheless use a long-form registration
statement in the event that both: (i) the use of a short-form registration
statement would limit the offering to existing security holders, qualified
institutional buyers or other classes of offerees or would otherwise, in the
opinion of the managing underwriters, have an adverse effect on the offering
under the Securities Act and regulations thereunder as then in effect; and (ii)
the holders of 90% of the BCC Registrable Securities or FPH Registrable
Securities, as the case may be, initially requesting the Demand Registration
direct in such request that Boise Holdings utilize a long-form registration
statement.
Notwithstanding any other provision of this Agreement to the contrary, a
registration requested hereunder shall not be deemed to have been effected: (i)
unless it has become and remains effective for the period specified in Section
5(b); (ii) if after it has become effective such registration is interfered with
by any stop order, injunction or other order or requirement of the Securities
and Exchange Commission ("SEC") or other governmental agency or court for any
reason other than due solely to the fault of the holders of the Registrable
Securities participating therein and, as a result thereof, the Registrable
Securities requested to be registered cannot be completely distributed in
accordance with the plan of distribution set forth in the registration
statement; or (iii) if the conditions to closing specified in any purchase
agreement or underwriting agreement entered into in connection with any such
registration are not satisfied or waived other than due solely to the fault of
the holders of the Registrable Securities participating therein. In addition, a
Demand Registration initially requested by the holders of the BCC Registrable
Securities shall not be deemed to have been effected if the holders of the BCC
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Registrable Securities are unable, as a result of the priority provisions in
Section 2(d) below, to sell at least 90% of the BCC Registrable Securities
initially requested to be included in such registration. Similarly, a Demand
Registration initially requested by the holders of the FPH Registrable
Securities shall not be deemed to have been effected if the holders of the FPH
Registrable Securities are unable, as a result of the priority provisions in
Section 2(d) below, to sell at least 90% of the FPH Registrable Securities
initially requested to be included in such registration.
(c) NOTICE TO OTHER HOLDERS: SELECTION OF UNDERWRITER AND HOLDER'S
COUNSEL. Within five (5) days after receipt of a request for a Demand
Registration, Boise Holdings will give prompt written notice (in any event
within five (5) days after its receipt of notice of any exercise of Demand
Registration rights under this Agreement) of such request to all other holders
of Registrable Securities, and subject to Section 2(d) below, will include
within such registration all Registrable Securities with respect to which Boise
Holdings has received written requests for inclusion therein within fifteen (15)
days after receipt of Boise Holdings' notice. The holders of a majority of the
BCC Registrable Securities or FPH Registrable Securities, as applicable,
submitting the initial request (i.e. excluding the holders submitting requests
after Boise Holdings' notice) shall have the right to select the investment
bankers and managers for the offering, subject in the case of holders of BCC
Registrable Securities submitting the original request, to the approval of the
holders of FPH Registrable Securities, if any, participating in such
registration pursuant to this Agreement, which approval shall not be
unreasonably withheld.
Counsel for all holders of Registrable Securities in connection with
such registration shall be selected: (i) by the holders of a majority of the BCC
Registrable Securities, if holders of the BCC Registrable Securities make the
initial registration request; or (ii) by the holders of a majority of the FPH
Registrable Securities, if the holders of the FPH Registrable Securities make
the initial registration request; provided, however, if the holders of a
majority of the FPH Registrable Securities, on the one hand, and a majority of
the BCC Registrable Securities, on the other hand, reasonably conclude, after
consultation with the other, that such representation is likely to result in a
conflict of interest or materially adversely affect either group's rights in
connection with such registration, then the holders of a majority of the FPH
Registrable Securities and the holders of a majority of the BCC Registrable
Securities, respectively, shall each be entitled to select a separate firm to
represent them as counsel in connection with such registration. The fees and
expenses of such firm or firms acting as counsel for the holders of the
Registrable Securities shall be paid by Boise Holdings.
(d) PRIORITY ON DEMAND REGISTRATIONS. Boise Holdings shall not
include in any Demand Registration any securities which are not Registrable
Securities without the prior written consent of the holders of at least 75% of
the Registrable Securities included in such registration. If a Demand
Registration is an underwritten offering and the managing underwriters advise
Boise Holdings in writing that in their opinion the number of Registrable
Securities and, if permitted hereunder, other securities requested to be
included in such offering exceeds the number of Registrable Securities and other
securities, if any, which can be sold in an orderly manner in such offering
within a price range acceptable to the holders of a majority of the BCC
Registrable Securities or FPH Registrable Securities, as applicable, initially
requesting registration, Boise Holdings will include in such registration only
the number of Registrable
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Securities which such underwriters advise in writing can be sold in such manner
and within such price range in the following order of priority:
(i) first, the BCC Registrable Securities and the FPH Registrable
Securities requested to be included therein, pro-rata among the
holders of such Registrable Securities on the basis of the
number of shares requested to be included by each such holder;
(ii) second, the Transferee Registrable Securities, if any, requested
to be included therein, pro-rata among the holders of such
Transferee Registrable Securities on the basis of the number of
shares requested to be included by each such holder; and
(iii) third, any other securities requested to be included in such
registration.
(e) RESTRICTIONS ON DEMAND REGISTRATIONS. Boise Holdings will not be
obligated to effect any Demand Registration within 90 days after the effective
date of a previous Demand Registration or previous registration in which holders
of Registrable Securities were given piggyback rights pursuant to Section 3 at
an offering price acceptable to the holders of the Registrable Securities and in
which there was no reduction in the number of Registrable Securities requested
to be included. Additionally, Boise Holdings may postpone for up to 90 days (on
not more than one occasion during any 12-month period) the filing or the
effectiveness of a registration statement for a Demand Registration if, based on
the advice of counsel, Boise Holdings reasonably determines that such Demand
Registration would likely have a material adverse effect on any proposal or plan
by Boise Holdings to engage in any acquisition of assets (other than in the
ordinary course of business) or any merger, consolidation, tender offer or
similar transaction; provided, however, that in such event, the holders of
Registrable Securities initially requesting such Demand Registration will be
entitled to withdraw such request and, if such request is withdrawn, such Demand
Registration will not count as one of the permitted Demand Registrations
hereunder and Boise Holdings will pay all Registration Expenses in connection
with such registration.
(f) OTHER REGISTRATION RIGHTS. Boise Holdings will not register for
the benefit of any Person other than BCC, FPH or their respective direct or
indirect transferees, or grant to any such other Person the right to request
Boise Holdings to register or to participate in Piggyback Registrations with
respect to, any equity securities of Boise Holdings, or any securities
convertible or exchangeable into or exercisable for such securities, without the
prior written consent of holders of a majority of FPH Registrable Securities
then outstanding.
3. PIGGYBACK REGISTRATIONS.
(a) GENERAL; NOTICE TO HOLDERS. In addition to the registration
rights in Section 2 above, whenever Boise Holdings proposes to register any of
its securities under the Securities Act (other than pursuant to a Demand
Registration hereunder) and the registration form to be used may be used for the
registration of Registrable Securities, Boise Holdings will give prompt written
notice (in any event within five (5) days after its receipt of notice of any
exercise of demand registration rights other than under this Agreement) to all
holders of Registrable
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Securities of its intention to effect such a registration. Subject to Sections
3(c) and 3(d) below, Boise Holdings shall include in such registration all
Registrable Securities with respect to which Boise Holdings has received written
requests for inclusion therein within fifteen (15) days after the receipt of
Boise Holdings' notice. Registrations under this Section 3 are sometimes
referred to herein as "PIGGYBACK REGISTRATIONS."
(b) NUMBER OF PIGGYBACK REGISTRATIONS; PIGGYBACK REGISTRATION
EXPENSES. The holders of the Registrable Securities shall be entitled to
participate in an unlimited number of Piggyback Registrations. The Registration
Expenses of the holders of Registrable Securities will be paid by Boise Holdings
in all Piggyback Registrations.
(c) PRIORITY ON PRIMARY PIGGYBACK REGISTRATIONS. Subject to Section
3(f) below, if a Piggyback Registration is an underwritten primary registration
on behalf of Boise Holdings, and the managing underwriters advise Boise Holdings
in writing that in their opinion the number of securities requested to be
included in such registration exceeds the number which can be sold in an orderly
manner in such offering within a price range acceptable to Boise Holdings, Boise
Holdings will include in such registration only the number of securities
(including Registrable Securities) which such underwriters advise in writing can
be sold in such manner and within such price range in the following order of
priority:
(i) first, the securities Boise Holdings proposes to sell;
(ii) second, the BCC Registrable Securities and the FPH Registrable
Securities, if any, requested to be included therein, pro-rata
among the holders of such Registrable Securities on the basis of
the number of shares requested to be included by each such
holder;
(iii) third, the Transferee Registrable Securities, if any, requested
to be included therein, pro-rata among the holders of such
Transferee Registrable Securities on the basis of the number of
shares requested to be included by each such holder; and
(iv) fourth, any other securities requested to be included in such
registration.
(d) PRIORITY ON SECONDARY PIGGYBACK REGISTRATIONS. Subject to
Section 3(f) below, if a Piggyback Registration is an underwritten secondary
registration on behalf of holders of Boise Holdings' securities, and the
managing underwriters advise Boise Holdings in writing that in their opinion the
number of securities requested to be included in such registration exceeds the
number which can be sold in an orderly manner in such offering within a price
range acceptable to the holders initially requesting such registration, Boise
Holdings will include in such registration: in the case of a registration with
respect to which Boise Holdings has provided notice under Section 3(a) above,
only the number of securities (including Registrable Securities) which can be
sold in such manner and within such price range in the following order of
priority:
(i) first, the securities requested to be included therein by the
holders requesting such registration, the BCC Registrable
Securities, if any, requested to be included therein, and the
FPH Registrable Securities, if any, requested to be included
therein, pro-rata among the holders of such
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securities (including Registrable Securities) on the basis of
the number of shares requested to be included by each such
holder;
(ii) second, the Transferee Registrable Securities, if any, requested
to be included therein, pro-rata among the holders of such
Transferee Registrable Securities on the basis of the number of
shares requested to be included by each such holder; and
(iii) third, any other securities requested to be included in such
registration.
(e) SELECTION OF UNDERWRITER AND HOLDER'S COUNSEL. If any Piggyback
Registration is an underwritten offering, the selection of investment bankers
and managers for the offering must be approved by the holders of a majority of
the Registrable Securities included in such Piggyback Registration. Such
approval will not be unreasonably withheld. The holders of the BCC Registrable
Securities and the FPH Registrable Securities shall have the right to select one
or two firms as counsel as provided in Section 2{c) above, the fees and expenses
of which shall be paid by Boise Holdings.
(f) OTHER REGISTRATIONS. If Boise Holdings has been requested by the
holders of Registrable Securities to file a registration statement pursuant to
Section 2 above or if it has filed a Registration Statement pursuant to this
Section 3, and if such previous request or registration has not been withdrawn
or abandoned, Boise Holdings will not file or cause to be effected any other
registration of any of its equity securities or securities convertible or
exchangeable into or exercisable for its equity securities under the Securities
Act (except on Form S-8 or any successor form), whether on its own behalf or at
the request of any holder or holders of such securities, until the expiration of
the effectiveness period required under Section 5(b) below.
4. HOLDBACK AGREEMENTS.
(a) AGREEMENT BY HOLDERS. Each holder of Registrable Securities
agrees not to effect any public sale or distribution (including sales pursuant
to Rule 144 under the Securities Act) of equity securities of Boise Holdings, or
any securities convertible into or exchangeable or exercisable for such
securities, during the seven days prior to and the 180-day period beginning on
the effective date of any underwritten Demand Registration or any underwritten
Piggyback Registration in which Registrable Securities are included (except as
part of such underwritten registration), unless the underwriters managing the
registered public offering otherwise agree.
(b) AGREEMENTS BY BOISE HOLDINGS. BOISE HOLDINGS agrees: (i) not to
effect or facilitate any public sale or distribution of its equity securities,
or any securities convertible into or exchangeable or exercisable for such
securities, during the thirty days prior to and during the 180-day period
beginning on the effective date of any underwritten Demand Registration or
Piggyback Registration (except as part of such underwritten Piggyback
Registration or pursuant to registrations on Form S-8 or any successor form),
unless the underwriters managing the registered public offering (and in the case
of a Demand Registration, the holders of a majority of the Registrable
Securities included therein) otherwise agree; and (ii) to cause Boise Holdings'
directors, officers and affiliates not to effect or facilitate any public sale
or distribution (including
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sales pursuant to Rule 144 under the Securities Act) of any equity securities,
or any securities convertible into or exchangeable or exercisable for such
securities during such period (except as part of such underwritten registration,
if otherwise permitted), unless the underwriters managing the registered public
offering, the holders of a majority of the Registrable Securities participating
in such registration otherwise agree.
5. REGISTRATION AND QUALIFICATION. If and whenever Boise Holdings
is required to effect the registration of any Registrable Securities, Boise
Holdings shall as promptly as possible:
(a) prepare, file and use its reasonable best efforts to cause to
become effective a registration statement under the Securities Act relating to
the Registrable Securities to be offered and effect the sale of such Registrable
Securities, in each case in accordance with the intended method of disposition
thereof (Boise Holdings shall cause such registration statement to be effective
as promptly as possible but in any event within 120 days of the request);
(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 and to comply
with the provisions of the Securities Act with respect to the disposition of all
Registrable Securities included therein until the earlier of: (i) such time as
all of such Registrable Securities included therein have been disposed of in
accordance with the intended methods of disposition; and (ii) the expiration of
180 days after such registration statement becomes effective; provided, that
such 180-day period shall be extended for such number of days that equals the
number of days elapsing from (x) the date the written notice contemplated by
paragraph 5(g) below is given by Boise Holdings to (y) the date on which Boise
Holdings delivers to the holders of the Registrable Securities included in such
registration statement the supplement or amendment contemplated by paragraph
5(g) below;
(c) provide copies of all registration statements, prospectus and
amendments and supplements to each firm selected as their legal counsel by the
holders of the Registrable Securities in accordance with this Agreement at least
ten days prior to the filing thereof (if practicable, at least one day in the
case of an amendment or supplement prepared pursuant to Section 5(g) below),
with such counsel being provided with the opportunity (but not the obligation)
to review and comment on such documents;
(d) furnish to the holders of the Registrable Securities included in
such registration statement 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, such documents
incorporated by reference in such registration statement or prospectus, such
number of other offering documents, copies 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, and such
other documents, as the holders of such Registrable Securities or such
underwriter may reasonably request;
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(e) use its reasonable best efforts to register or qualify all
Registrable Securities covered by such registration statement under the
securities or blue sky laws of such jurisdictions as the holders of the
Registrable Securities included in such registration statement or any
underwriter of such Registrable Securities shall request, and use its reasonable
best efforts to obtain all appropriate registrations, permits and consents in
connection therewith, and do any and all other acts and things which may be
necessary or advisable to enable such holders of such Registrable Securities or
any such underwriter to consummate the disposition in such jurisdictions of its
Registrable Securities covered by such registration statement;
(f) furnish to the holders of the Registrable Securities included in
such registration statement and to any underwriter of such Registrable
Securities: (i) an opinion of counsel for Boise Holdings addressed to the
holders of such Registrable Securities 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) a "cold
comfort" letter addressed to the holders of such Registrable Securities and
signed by the independent public accountants who have audited the financial
statements of Boise Holdings 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
underwriters in underwritten public offerings of securities and such other
matters as the holders of such Securities may reasonably request and, in the
case of such accountants' letter, with respect to events subsequent to the date
of such financial statements;
(g) as promptly as practicable, notify the holders of the
Registrable Securities included in such registration statement in writing: (i)
at any time when a prospectus relating to a registration statement hereunder 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 prepare and furnish to the holders of such Registrable
Securities 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;
(h) cause all such Registrable Securities included in such
registration statement to be listed on each securities exchange on which similar
securities issued by Boise Holdings are then listed and, if not so listed, to be
listed on an exchange satisfactory to holders of a majority of Registrable
Securities;
(i) furnish for delivery in connection with the closing of any
offering of Registrable Securities pursuant to a registration hereunder
unlegended certificates representing
10
ownership of the Registrable Securities being sold in such denominations as
shall be requested by the holders of the Registrable Securities or the
underwriters;
(j) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration statement;
(k) enter into such customary agreements and take all such other
actions as the holders of a majority of the Registrable Securities being sold or
the underwriters, if any, reasonably request in order to expedite or facilitate
the disposition of such Registrable Securities (including effecting a stock
split or a combination of shares);
(l) otherwise use its best efforts to comply with all applicable
rules and regulations of the SEC, and make available to its security holders, as
soon as reasonably practicable, an earnings statement covering the period of at
least twelve months beginning with the first day of Boise Holdings' first full
calendar quarter after the effective date of the registration statement, which
earnings statement shall satisfy the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder;
(m) permit any holder of Registrable Securities which holder, in its
sole and exclusive judgment, might be deemed to be an underwriter or a
controlling person of Boise Holdings, to participate in the preparation of such
registration statement and to require the insertion therein of material,
furnished to Boise Holdings in writing, which in the reasonable judgment of such
holder and its counsel should be included; and
(n) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Common Stock included in such registration Statement for sale in any
jurisdiction, Boise Holdings will use its reasonable best efforts promptly to
obtain the withdrawal of such order.
If any such registration or comparable statement refers to any holder
of Registrable Securities by name or otherwise as the holder of any securities
of Boise Holdings and if in its sole and exclusive judgment, such holder is or
might be deemed to be a controlling person of Boise Holdings, such holder will
have the right to require: (i) the insertion therein of language, in form and
substance satisfactory to such holder and presented to Boise Holdings in
writing, to the effect that the holding by such holder of such securities is not
to be construed as a recommendation by such holder of the investment quality of
Boise Holdings' securities covered thereby and that such holding does not imply
that such holder will assist in meeting any future financial requirements of
Boise Holdings; or (ii) in the event that such reference to such holder by name
or otherwise is not required by the Securities Act or any similar federal
statute then in force, the deletion of the reference to such holder; provided
that with respect to this clause (ii) such holder will furnish to Boise Holdings
an opinion of counsel to such effect.
6. RECAPITALIZATION; UNDERWRITING; DUE DILIGENCE.
(a) For any Piggyback Registration or Demand Registration prior to
the time Boise Holdings becomes subject to the Exchange Act with respect to
Registrable Securities, Boise Holdings shall effect a stock split, stock
dividend or stock combination which in the
11
opinion of the underwriters is desirable for the sale and marketing of the
Registrable Securities to the public.
(b) If requested by the underwriters for any underwritten offering
of Registrable Securities pursuant to a registration requested under this
Agreement, Boise Holdings shall enter into an underwriting agreement with such
underwriters for such offering, which agreement will contain such
representations and warranties by Boise Holdings and such other terms and
provisions as are customarily contained in underwriting agreements of Boise
Holdings to the extent relevant and as are customarily contained in underwriting
agreements generally with respect to secondary distributions to the extent
relevant, including, without limitation, indemnification and contribution
provisions substantially to the effect and to the extent provided in Section
7(a), and agreements as to the provision of opinions of counsel and accountants'
letters to the effect and to the extent provided in Section 5(f). Subject to
Section 9 below, the holders of the Registrable Securities included in such
registration shall be parties to any such underwriting agreement and the
representations and warranties by, and the other agreements on the part of,
Boise Holdings to and for the benefit of such underwriters, shall also be made
to and for the benefit of the holders of such Registrable Securities.
(c) In connection with the preparation and filing of each
registration statement registering Registrable Securities under the Securities
Act pursuant to this Agreement, Boise Holdings shall give the holders of the
Registrable Securities included in such registration and the underwriters, if
any, and their respective counsel, accountants and agents, the opportunity (but
such persons shall not have the obligation) to review the books and records of
Boise Holdings and to discuss the business of Boise Holdings with its officers
and the independent public accountants who have certified the financial
statements of Boise Holdings as shall be necessary, in the opinion of the
holders of such Registrable Securities and such underwriters or their respective
counsel, to conduct a reasonable investigation within the meaning of the
Securities Act.
7. INDEMNIFICATION.
(a) BOISE HOLDINGS INDEMNIFICATION. Boise Holdings agrees to
indemnify, to the maximum extent permitted by law, each holder of Registrable
Securities, its officers and directors and each Person who controls such holder
(within the meaning of the Securities Act) and the officers, directors,
affiliates, employees and agents of each of the foregoing (whether or not any
litigation is commenced or threatened and whether or not such indemnified
Persons are parties to any litigation commenced or threatened), against all
losses, claims, damages, liabilities and expenses including, without limitation,
attorneys' fees, expert fees and amounts paid in settlement, resulting from or
arising out of any untrue or alleged untrue statement of material fact contained
in any registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged omission of a
material fact required to be stated therein or necessary to make the statements
therein not misleading, except insofar as the same are caused by or contained in
any information furnished in writing to Boise Holdings by such holder expressly
for use therein or by such holder's failure to deliver a copy of the
registration statement or prospectus or any amendments or supplements thereto
after Boise Holdings has furnished such holder with a sufficient number of
copies of the same. In connection with an underwritten offering, Boise Holdings
will indemnify such underwriters, their officers
12
and directors and each Person who controls such underwriters (within the meaning
of the Securities Act) to the same extent as provided above with respect to the
indemnification of the holders of Registrable Securities. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the holders of the Registrable Securities or any underwriter and shall
survive the transfer of such securities. The foregoing indemnity agreement is in
addition to any liability that Boise Holdings may otherwise have to the holders
of the Registrable Securities or any underwriter of the Registrable Securities
or any controlling Person of the foregoing and the officers, directors,
affiliates, employees and agents of each of the foregoing.
(b) HOLDER INDEMNIFICATION. In connection with any registration
statement in which a holder of Registrable Securities is participating, each
such holder agrees to indemnify, to the extent permitted by law, Boise Holdings,
its directors and officers and each Person who controls Boise Holdings (within
the meaning of the Securities Act) and the officers, directors, affiliates,
employees and agents of each of the foregoing (whether or not any litigation is
commenced or threatened and whether or not such indemnified Persons are parties
to any litigation commenced or threatened), against any losses, claims, damages,
liabilities and expenses including, without limitation, attorneys' fees, expert
fees and amounts paid in settlement, resulting from or arising out of any untrue
or alleged untrue statement of material fact contained in the registration
statement, prospectus or preliminary prospectus or any amendment thereof or
supplement thereto or any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not
misleading, but only to the extent that such untrue statement or omission is
contained in any information furnished in writing to Boise Holdings by such
holder expressly for use in such registration statement; provided, however, that
the obligation to indemnify will be individual to each such holder and will be
limited to the net amount of proceeds received by such holder from the sale of
Registrable Securities pursuant to such registration statement.
(c) RESOLUTION OF CLAIMS. Any Person entitled to indemnification
hereunder will: (i) give prompt written notice to the indemnifying party of any
claim with respect to which it seeks indemnification hereunder; and (ii) unless
in such indemnified party's reasonable judgment a conflict of interest between
such indemnified and indemnifying parties may exist with respect to such claim,
permit such indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is assumed,
the indemnifying party will not be subject to any liability for any settlement
made by the indemnified party without its consent (but such consent will not be
unreasonably withheld). An indemnifying party who is not entitled to, or elects
not to, assume the defense of a claim will not be obligated to pay the fees and
expenses of more than one counsel for all parties indemnified by such
indemnifying party with respect to such claim, unless in the reasonable judgment
of any indemnified party a conflict of interest may exist between such
indemnified party and any other of such indemnified parties with respect to such
claim, in which case such indemnified party will be entitled to have the fees
and expenses of its separate counsel paid by the indemnifying party.
(d) CONTRIBUTION. If the indemnification provided for in this
Section 7 shall for any reason be unavailable (other than in accordance with its
terms) to an indemnified party in respect of any loss, claim, damage, liability
or expense referred to therein, then each indemnifying party shall, in lieu of
indemnifying such indemnified party, contribute to the
13
amount paid or payable by such indemnified party as a result of such loss,
claim, damage, liability or expense 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 expense 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 amount paid or payable by an indemnified party as a result of the
loss, cost, claim, damage, liability or expense, or action in respect thereof,
referred to above in this Section 7(d) shall be deemed to include, for purposes
of this Section 7(d), any legal or other expenses reasonably incurred by such
indemnified 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 Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation, In any
event, a holder's obligation to provide contribution pursuant to this Section
7(d) shall be limited to the net amount of proceeds received by such holder from
the sale of Registrable Securities pursuant to such registration statement.
(e) STATE SECURITIES LAWS. Indemnification and contribution similar
to that specified in the preceding paragraphs of this Section 7 (with
appropriate modifications) shall be given by Boise Holdings, the holders of the
Registrable Securities and underwriters with respect to any required
registration or other qualification of securities under any state law or
regulation or governmental authority.
(f) OTHER RIGHTS. The obligations of the parties under this Section
7 shall be in addition to any liability which any party may otherwise have to
any other party.
8. RULE 144. Boise Holdings shall use its reasonable best efforts
to ensure that the conditions to the availability of Rule 144 set forth in
paragraph (c) thereof shall be satisfied. Upon the request of the holders of a
majority of the BCC Registrable Securities or the holders of a majority of the
FPH Registrable Securities, Boise Holdings will deliver to such holders a
written statement as to whether it has complied with such requirements.
9. PARTICIPATION IN UNDERWRITTEN REGISTRATIONS. No holder of
Registrable Securities may participate in any registration hereunder which is
underwritten unless such holder: (a) agrees to sell such holder's securities on
the basis provided in any underwriting arrangements contemplated by such
offering; and (b) completes and executes all questionnaires, powers of attorney,
indemnities, underwriting agreements and other documents required under the
terms of such underwriting arrangements; provided, however, that no holder of
Registrable Securities included in any underwritten registration will be
required to make: (i) any representations or warranties to Boise Holdings, the
underwriters or other Persons, other than representations and warranties
regarding such holder, such holder's Registrable Securities and such holder's
intended method of distribution; or (ii) any indemnities to Boise Holdings, the
underwriter or other Persons on terms which are not substantially identical to
the provisions in Section 7(b) above.
10. MISCELLANEOUS.
14
(a) NO INCONSISTENT AGREEMENTS. Boise Holdings represents and
warrants to the holders of the Registrable Securities that it has not entered
into, and agrees with the holders of the Registrable Securities that it will not
hereafter enter into, any agreement with respect to its securities which is
inconsistent or conflicts with, or violates the rights granted to the holders of
Registrable Securities in, this Agreement.
(b) ADJUSTMENTS AFFECTING REGISTRABLE SECURITIES. In addition to
Boise Holdings' obligations under Section 6(a) above, Boise Holdings will not
take any action, or permit any change to occur, with respect to its securities
which would adversely affect the ability of the holders of Registrable
Securities to include such Registrable Securities in a registration undertaken
pursuant to this Agreement or which would adversely affect the marketability of
such Registrable Securities in any such registration (including effecting a
stock split or a combination of shares).
(c) REMEDIES. Each holder of Registrable Securities will have all
rights and remedies set forth in this Agreement, Boise Holdings' Certificate of
Incorporation and all rights and remedies which such holders have been granted
at any time under any other agreement and all of the rights which such holders
have under any law. Any Person having any rights under any provision of this
Agreement will be entitled to enforce such rights specifically, without posting
a bond or other security, to recover damages by reason of any breach of any
provision of this Agreement and to exercise all other rights granted by law.
(d) AMENDMENTS; WAIVER. Except as otherwise expressly provided
herein, the provisions of this Agreement may be amended and Boise Holdings may
take any action herein prohibited, or omit to perform any act herein required to
be performed by it, only if Boise Holdings has obtained the written consent of
holders of a majority of FPH Registrable Securities; PROVIDED that if any such
amendment or waiver materially and disproportionately affects holders of BCC
Registrable Securities adversely in a manner different than holders of FPH
Registrable Securities, such amendment or waiver shall be effective against
holders of BCC Registrable Securities only with the prior written consent of
holders of a majority of BCC Registrable Securities then outstanding. Boise
Holdings shall deliver written notice to BCC (or in the event that BCC no longer
holds BCC Registrable Securities, the record holder of the largest number of
Boise Registrable Securities) promptly after any amendment is made that does not
require the consent of the holders of a majority of Boise Registrable Securities
(as determined in accordance with the proviso to the immediately foregoing
sentence). No other course of dealing between Boise Holdings and the holder of
any Registrable Securities or any delay in exercising any rights hereunder or
under the Certificate of Incorporation will operate as a waiver of any rights of
any such holders. For purposes of this Agreement, shares held by Boise Holdings
or any of its Subsidiaries will not be deemed to be Registrable Securities. If
Boise Holdings pays any consideration to any holder of Registrable Securities
for such holder's consent to any amendment, modification or waiver hereunder,
Boise Holdings will also pay each other holder granting its consent hereunder
equivalent consideration computed on a pro rata basis.
In the event that the Securities Act, Exchange Act and/or regulations
thereunder, respectively, are amended in a material respect and one or more of
such amendments reduce or diminish the benefits hereunder to the holders of the
Registrable Securities, including, without limitation, amendments which may be
adopted in connection with the Aircraft Carrier Release
15
(any such reducing or diminishing amendments being referred to herein as
"SECURITIES LAW AMENDMENTS"), Boise Holdings shall, upon the written request of
both (i) BCC, as long as it or any of its Affiliates owns any BCC Registrable
Securities, and (ii) FPH, as long as it or any of its Affiliates owns any FPH
Registrable Securities, amend this Agreement to provide the holders of the
Registrable Securities with benefits which, after giving effect to such
Securities Law Amendments, are equivalent to the benefits hereunder absent such
Securities Law Amendments.
(c) HEADINGS. The headings in this Agreement are inserted for
convenience only and shall not be deemed to define or limit the scope of any
section or subsection.
(f) NOTICES. All requests, notices, demands or other communications
shall be in writing and will be deemed to have been given when delivered to the
recipient, when received by facsimile or electronic transmission (but only if
the sender receives confirmation of receipt from the intended recipient), one
(1) business day after the date when sent to the recipient by overnight courier
service, or five (5) business days after the date when mailed to the recipient
by certified or registered mail, return receipt requested and postage prepaid.
Such requests, notices, demands and other communications will be sent to BCC,
FPH and to Boise Holdings at the addresses indicated below:
to BCC:
OfficeMax Incorporated
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxxx Xxxxx, Chairman of the Board
Facsimile: (000) 000-0000
with a copy to:
OfficeMax Incorporated
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxx, XX 00000
Attention: Xxxxxxx Broad, Vice President and General Counsel
Facsimile: (000) 000-0000
to FPH:
Forest Products Holdings, L.L.C.
c/o Madison Dearborn Partners, L.L.C.
Three First Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
Email: xxxxxxxx@xxxx.xxx
xxxxxxxxx@xxxx.xxx
16
with a copy to:
Xxxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
Email: xxxxxxxxx@xxxxxxxx.xxx
to Boise Holdings:
Boise Cascade Holdings, L.L.C.
c/o Madison Dearborn Partners, L.L.C.
Three First Xxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Xxxxxx X. Xxxxxxxx
Facsimile: (000) 000-0000
Email: xxxxxxxx@xxxx.xxx
xxxxxxxxx@xxxx.xxx
with a copy to:
Xxxxxxxx & Xxxxx LLP
000 Xxxx Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
Email: xxxxxxxxx@xxxxxxxx.xxx
or to such other address or to the attention of such other Person as the
recipient party has specified by prior written notice in accordance with the
procedures provided above. Notices to any other holders of Registrable
Securities shall be sent to the address specified by prior written notice to
Boise Holdings, BCC and FPH in accordance with the procedures provided above.
(g) NO THIRD-PARTY BENEFICIARIES. Subject to Section 10(k), this
Agreement will not confer any rights or remedies upon any Person other than
Boise Holdings, BCC and FPH and their respective successors.
(h) ENTIRE AGREEMENT. This Agreement (including the documents
referred to herein) constitutes the entire agreement among the parties and
supersedes any prior understandings, agreements, or representations by or among
the parties, written or oral, that may have related in any way to the subject
matter hereof.
17
(i) GOVERNING LAW. The corporate law of the State of Delaware will
govern all issues concerning the relative rights of Boise Holdings and its
securityholders. All other questions concerning the construction, validity and
interpretation of this Agreement will be governed by the internal law, and not
the law of conflicts, of the State of Illinois.
(j) SEVERABILITY. In the event any provision in this Agreement is
held to be invalid as applied to any fact or circumstance, it shall be
ineffective only to the extent of such invalidity, and such invalidity shall not
affect the other provisions of this Agreement or the same provision as applied
to any other fact or circumstance.
(k) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon the
parties hereto and their respective successors and any Person who becomes a
holder of Registrable Securities. This Agreement shall inure to the benefit of
and be enforceable by the parties hereto and their respective successors and any
Person who becomes a holder of Registrable Securities (to the extent provided
herein with respect to Registrable Securities of the type held by such holder).
(l) COUNTERPARTS. This Agreement may be executed in counterparts
(including by facsimile or electronic transmission), all of which taken together
shall constitute one and the same original.
(m) TERMINATION. The rights of all holders of BCC Registrable
Securities under this Agreement shall terminate as of the date when all BCC
Registrable Securities can be sold within a three-month period without
registration under the Securities Act pursuant to Rule 144.
18
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
BOISE CASCADE CORPORATION
By: /s/ Xxx X. Xxxxxxxx
------------------------------
Name: Xxx X. Xxxxxxxx
Title: Vice President
FOREST PRODUCTS HOLDINGS, L.L.C.
By: Madison Dearborn Capital Partners IV, L.P.
Its: Managing Member
By: Madison Dearborn Partners IV, L.P.
Its: General Partner
By: Madison Dearborn Partners, L.L.C.
Its: General Partner
By: /s/ Xxxxxx X. Xxxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Managing Director
BOISE CASCADE HOLDINGS, L.L.C.
By: /s/ Xxxxxxxxxxx X. XxXxxxx
------------------------------
Name: Xxxxxxxxxxx X. XxXxxxx
Title: Vice President
