AGREEMENT AND PLAN OF MERGER
BY AND AMONG
BOISE CASCADE CORPORATION,
BOISE CASCADE OFFICE PRODUCTS CORPORATION,
AND
BOISE ACQUISITION CORPORATION
DATED AS OF MARCH 12, 2000
TABLE OF CONTENTS
ARTICLE I
THE OFFER
Section 1.01 The Offer
Section 1.02 Company Action
ARTICLE II
THE MERGER
Section 2.01 The Merger
Section 2.02 Effective Time
Section 2.03 Closing
Section 2.04 Certificate of Incorporation, By-Laws;
Officers and Directors
Section 2.05 Conversion of Shares
Section 2.06 Dissenting Shares
Section 2.07 Treatment of Options
Section 2.08 Exchange of Certificates
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
Section 3.01 Capitalization
Section 3.02 Authorization
Section 3.03 Fairness Opinion and Approval by the
Special Committee
Section 3.04 SEC Reports
Section 3.05 Offer Documents
Section 3.06 Compliance with Applicable Laws
Section 3.07 Brokers and Finders
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND THE PURCHASER
Section 4.01 Organization
Section 4.02 Authorization
Section 4.03 No Violations; Consents and Approvals
Section 4.04 Schedule TO
Section 4.05 Brokers and Finders
Section 4.06 Litigation
Section 4.07 Financing
ARTICLE V
CERTAIN COVENANTS AND AGREEMENTS
Section 5.01 Conduct of Business
Section 5.02 Announcement
Section 5.03 No Solicitation
Section 5.04 Notification of Certain Matters
Section 5.05 Directors' and Officers' Indemnification
Section 5.06 Access
Section 5.07 Reasonable Best Efforts
Section 5.08 Purchaser Compliance
Section 5.09 Obligation of Parent
ARTICLE VI
CONDITIONS PRECEDENT
Section 6.01 Conditions to Each Party's Obligation
To Effect the Merger
Section 6.02 Conditions to the Obligations of Parent and
The Purchaser to Effect the Merger
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
Section 7.01 Termination
Section 7.02 Effect of Termination
Section 7.03 Amendment
Section 7.04 Waiver
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Nonsurvival of Representations and Warranties
Section 8.02 Expenses
Section 8.03 Applicable Law
Section 8.04 Notices
Section 8.05 Entire Agreement
Section 8.06 Assignment
Section 8.07 Headings; References
Section 8.08 Counterparts
Section 8.09 No Third Party Beneficiaries
Section 8.10 Severability; Enforcement
Section 8.11 Certain Definitions
Annex A
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER dated as of March 12, 2000 (the
"Agreement") among Boise Cascade Corporation, a Delaware corporation
("Parent"), Boise Cascade Office Products Corporation, a Delaware
corporation ("the Company"), and Boise Acquisition Corporation, a Delaware
corporation, and a wholly-owned subsidiary of Parent (the "Purchaser").
WHEREAS, Parent beneficially owns approximately 81.2% of the common
stock, par value $0.01 per share, of the Company ("the Company Common
Stock");
WHEREAS, Parent has proposed that the Purchaser acquire all of the
issued and outstanding shares of the Company Common Stock not beneficially
owned by Parent or the Purchaser (the "Shares");
WHEREAS, the Board of Directors of the Company, upon recommendation
of a committee comprised of the three independent directors of the
Company's Board of Directors (the "Special Committee"), has determined
that the consideration to be paid for each Share in the Offer (as defined
below) and the Merger (as defined below) is fair to the holders of the
Shares and that it is advisable and in the best interests of the
stockholders of the Company to approve Parent's proposed acquisition and
has unanimously voted (i) to recommend that the stockholders of the
Company accept the Offer and tender their Shares pursuant to the Offer and
(ii) to approve the merger of the Purchaser with and into the Company,
with the Company being the surviving corporation, in accordance with the
General Corporation Law of the State of Delaware (the "DGCL") following
consummation of the Offer (the "Merger"); and
WHEREAS, it is proposed that Parent make a cash tender offer (the
"Offer") in compliance with the applicable provisions of the Securities
and Exchange Act of 1934, as amended (the "Exchange Act") and the rules
and regulations promulgated under that Act to acquire all the issued and
outstanding Shares for $16.50 per Share (such amount, or any greater
amount per share paid pursuant to the Offer, being referred to as the "Per
Share Amount") net to the seller in cash, upon the terms and subject to
the conditions of this Agreement. The Offer will be followed by the
Merger, pursuant to which each then-issued and outstanding Share not
beneficially owned by Parent or the Purchaser will be converted into the
right to receive the Per Share Amount, upon the terms and subject to the
conditions provided in this Agreement; and
NOW, THEREFORE, in consideration of the mutual representations,
warranties and agreements contained in this Agreement, the parties agree
as follows:
ARTICLE I
THE OFFER
Section 1.01 The Offer.
(a) Unless this Agreement has been terminated in accordance with
Article VII, Parent, Purchaser and the Company shall use their reasonable
best efforts to complete and file the Offer Documents, as defined below,
and Schedule 14D-9 and commence the Offer as promptly as practicable but
in no event later than fourteen days from the date hereof. The Offer
shall be scheduled to expire at 5:00 p.m., New York City time on the 21st
business day following commencement of the Offer (the "Initial Expiration
Date").
The Purchaser shall use reasonable best efforts to consummate the
Offer in accordance with its terms and to accept for payment Shares
tendered pursuant to the Offer as soon as legally permitted to do so under
applicable law and shall pay for tendered Shares as soon as practical,
subject to:
(i) the condition that pursuant to the Offer, there shall have
been validly tendered and not withdrawn before the Offer expires the
number of Shares which constitutes at least a majority of the outstanding
Shares not beneficially owned by Parent or Purchaser immediately prior to
the expiration of the Offer (the "Minimum Condition"); and
(ii) the other conditions set forth in Annex A to this
Agreement.
(b) The Offer shall be made by means of the Offer to Purchase (as
defined below) and shall be subject to the Minimum Condition and the other
conditions set forth in Annex A to this Agreement and shall reflect, as
appropriate, the other terms set forth in this Agreement. The Purchaser
expressly reserves the right to increase the amount it offers to pay per
Share in the Offer and to extend the Offer to the extent required by law
in connection with such an increase, in each case without the consent of
the Company. Without the prior written consent of the Special Committee,
Parent will not:
(i) decrease the Offer Price;
(ii) change the number of Shares to be purchased in the Offer;
(iii) change the form of the consideration payable in the Offer;
(iv) amend or waive the Minimum Condition; or
(v) make any other change in the terms or conditions of the
Offer which is adverse to the holders of Shares.
(c) If, on the Initial Expiration Date, all conditions to the Offer
will not have been satisfied or waived, the Purchaser may, from time to
time, in its sole discretion, extend the expiration date; provided,
however, that the Offer shall not be extended beyond June 30, 2000.
The Per Share Amount shall, subject to any applicable withholding of
taxes, be net to the seller in cash, upon the terms and subject to the
conditions of the Offer.
(d) As soon as reasonably practicable on the date of commencement of
the Offer, Parent shall file with the Securities and Exchange Commission
(the "SEC") a combined Schedule TO and Schedule 13E-3 under cover of
Schedule TO. (The combined Schedule TO and Schedule 13E-3, together with
all exhibits and amendments, is collectively referred to as "Schedule
TO.")
The Schedule TO shall contain or shall incorporate by reference an
offer to purchase (the "Offer to Purchase") and the form of the related
letter of transmittal (the Schedule TO, the Offer to Purchase and such
other documents, together with all supplements and amendments thereto,
being referred to herein collectively as the "Offer Documents").
Parent, the Purchaser and the Company agree to correct promptly any
information provided by any of them for use in the Offer Documents which
shall have become materially incorrect or misleading, and Parent and the
Purchaser further agree to take all steps necessary to cause the Schedule
TO as so corrected to be filed with the SEC and the other Offer Documents
as so corrected to be disseminated to the holders of Shares, in each case
as and to the extent required by applicable law.
The Company, the Special Committee and their respective counsel shall
be given the opportunity to review and comment on the Offer Documents and
any amendments to the Offer Documents before they are filed with the SEC.
Parent and the Purchaser shall provide the Company, the Special Committee
and their respective counsel with a copy of any written comments or
telephonic notification of any oral comments from the SEC or its staff
with respect to the Offer Documents promptly after the comments are
received.
Section 1.02 Company Action.
(a) The Company consents to the Offer and represents that:
(i) the Special Committee and the Company Board of Directors
at meetings duly called and held on March 10, 2000, have each, by
unanimous vote of all directors present and voting;
(A) determined that the Offer and the Merger are
advisable, fair to and in the best interests of the stockholders of the
Company (other than Parent and the Purchaser);
(B) approved this Agreement and the transactions
contemplated by this Agreement; and
(C) resolved to recommend that the stockholders of the
Company accept the Offer and tender their Shares pursuant to the Offer;
provided that such recommendation may be withdrawn, modified or amended to
the extent the Board of Directors, upon recommendation of the Special
Committee, determines in good faith after consultation with independent
legal counsel that its failure to take such action would violate the
fiduciary duties of the Board of Directors under applicable law; and
(ii) Credit Suisse First Boston ("Advisor") has delivered to
the Special Committee a written opinion that, based on, and subject to,
the various assumptions and qualifications set forth in that opinion, as
of the date of this Agreement, the consideration to be received by the
holders of Shares (other than Parent and the Purchaser) pursuant to the
Offer and the Merger is fair to such holders from a financial point of
view. A copy of the opinion has been provided to Parent, and the Company
has been authorized by Advisor to include the opinion in its entirety, in
the Offer Documents; provided, however that any description of the content
of the opinion shall be approved by the Advisor, which approval will not
be unreasonably withheld. The Company consents to the inclusion in the
Offer Documents of the recommendations of the Special Committee and the
Company Board of Directors described above, provided the exact text of any
such statement be first approved by counsel to the committee.
(b) On the same day as Parent first files the Schedule TO with the
SEC, the Company shall file with the SEC a Solicitation/Recommendation
Statement on Schedule 14D-9 (together with all amendments, supplements,
and exhibits, the "Schedule 14D-9") containing the recommendations of the
Special Committee and the Company Board of Directors described in Section
1.02(a) and shall disseminate the Schedule 14D-9 to the extent required by
Rule 14d-9 promulgated under the Exchange Act and any other applicable
federal securities laws or regulations. The Company, Parent and the
Purchaser agree to promptly correct any information provided by any of
them for use in the Schedule 14D-9 which has become materially incorrect
or misleading. The Company further agrees to take all steps necessary to
cause the Schedule 14D-9 as so corrected to be filed with the SEC and
disseminated to holders of Shares, in each case as and to the extent
required by applicable federal securities laws. Parent and its counsel
shall be given the opportunity to review and comment on the Schedule 14D-9
and any amendments to such Schedule before it is filed with the SEC. The
Company shall provide Parent and its counsel with a copy of any written
comments or telephonic notification of any oral comments the Company may
receive from the SEC with respect to the Schedule 14D-9 promptly after it
is received.
(c) In connection with the transactions contemplated by this
Agreement, the Company shall promptly furnish Parent with any information,
including, without limitation, mailing labels, updated shareholder
listings, security position listings, and such other information and
assistance as Parent, the Purchaser or their agents may reasonably request
in connection with the Offer and the Merger.
ARTICLE II
THE MERGER
Section 2.01 The Merger.
At the Effective Time, upon the terms and subject to the conditions
in this Agreement and in accordance with the DGCL, the Purchaser shall be
merged with and into the Company, the separate existence of the Purchaser
shall cease and the Company shall continue as the surviving corporation
(the "Surviving Corporation"). The Merger shall have the effects as
provided by the DGCL and other applicable law.
Section 2.02 Effective Time.
On the Closing Date, the parties shall file with the Secretary of
State of the State of Delaware, a certificate of merger (the "Certificate
of Merger") executed in accordance with the relevant provisions of the
DGCL and shall make all other filings or recordings required under the
DGCL. The Merger shall become effective at such time as the Certificate
of Merger is duly filed with the Secretary of State of the State of
Delaware or at such other time as is permissible under the DGCL and as
Parent and the Company shall agree and as specified in the Certificate of
Merger (the time the Merger becomes effective being the "Effective Time").
Section 2.03 Closing.
The closing of the Merger (the "Closing") will take place at the
headquarters of Parent in Boise, Idaho, on the day immediately following
the satisfaction of the conditions provided in Article VI, or at such
other date and place as the Company and Parent shall agree (the "Closing
Date").
Section 2.04 Certificate of Incorporation, By-Laws; Officers and
Directors
Pursuant to the Merger:
(a) the Certificate of Incorporation and By-laws of the Company as
in effect immediately prior to the Effective Time shall be the Certificate
of Incorporation and By-laws of the Surviving Corporation following the
Merger until thereafter changed or amended as provided therein and with
applicable law;
(b) the directors of the Company immediately prior to the Effective
Time shall be the directors of the Surviving Corporation following the
Merger and until the earlier of their death, resignation or removal or
until their respective successors are duly elected or appointed and
qualified; and
(c) the officers of the Company immediately prior to the Effective
Time shall be the officers of the Surviving Corporation until the earlier
of their death, resignation or removal or until their respective
successors are duly elected or appointed and qualified.
Section 2.05 Conversion of Shares.
As of the Effective Time, by virtue of the Merger and without any
action on the part of the Company, Parent, the Purchaser or the holders of
any Shares:
(a) Shares of the Purchaser. Each share of common stock of the
Purchaser which is issued and outstanding immediately prior to the
Effective Time shall be converted into and become one fully paid and
nonassessable share of common stock of the Surviving Corporation;
(b) Capital Stock of the Company. Subject to Sections 2.05(c) and
2.06, each share of the Company Common Stock which is issued and
outstanding immediately prior to the Effective Time shall be converted
into and become a right to receive the Per Share Amount in cash and shall
automatically be canceled and retired and shall cease to exist. Each
holder of a certificate representing any such shares of the Company Common
Stock shall, to the extent such certificate represents such shares, cease
to have any rights with respect to such shares, except the right to
receive the Per Share Amount allocable to the shares represented by such
certificate upon surrender of such certificate in accordance with Section
2.08.
(c) Cancellation of Treasury Stock and Parent-Owned Stock. Any
shares of the Company Common Stock that are owned immediately prior to the
Effective Time by the Company as treasury stock and each Share owned by
Parent, Purchaser or any other wholly-owned subsidiary of Parent, shall be
canceled and retired and shall cease to exist, and no consideration shall
be delivered in exchange for such shares. Each holder of a certificate
representing any such shares shall cease to have any rights with respect
to such shares.
Section 2.06 Dissenting Shares.
Notwithstanding anything in this Agreement to the contrary, shares of
the Company Common Stock outstanding immediately prior to the Effective
Time and which are held by a stockholder who has properly exercised
appraisal rights thereto, in accordance with Section 262 of the DGCL
("Dissenting Shares") shall not be converted into a right to receive the
Per Share Amount, unless such holder fails to perfect or withdraws or
otherwise loses such holder's right to appraisal, if any. If, after the
Effective Time, such holder fails to perfect or withdraws or loses any
such right to appraisal, each such share of such holder shall be treated
as a share that had been converted as of the Effective Time into the right
to receive the Per Share Amount, without interest, in accordance with
Section 2.05(b). The Company shall give Parent:
(a) prompt notice of any demands for appraisal of any shares of the
Company Common Stock received by the Company; and
(b) the opportunity to participate in and direct all negotiations
and proceedings with respect to any such demands. The Company shall not,
without the prior written consent of Parent, make any payment with respect
to, or settle, offer to settle or otherwise negotiate, any such demands.
Section 2.07 Treatment of Options.
Prior to the Effective Time, the Company will attempt in good faith
to provide that, at the Effective Time, each option to purchase shares of
the Company Common Stock (a "Stock Option") granted under either the 1995
Key Executive Stock Option Plan or the Company's Directors' Stock Option
Plan will be cancelled. In exchange for each Stock Option, the holder
will be entitled to receive from the Company, for each share of the
Company Common Stock subject to the Stock Option, a cash payment equal to
the excess, if any, of the Per Share Amount over the applicable exercise
price.
Section 2.08 Exchange of Certificates.
(a) Exchange Agent. The Shareholders Services Department of Parent
shall be appointed to act as exchange agent (the "Exchange Agent") for the
payment of the Per Share Amount for the holders of the Shares. As of the
Effective Time, Parent shall have deposited with the Exchange Agent, for
the benefit of the holders of shares of the Company Common Stock, for
exchange in accordance with this Section 2.08, the aggregate amount of
cash payable pursuant to Section 2.05(b) hereof in exchange for
outstanding shares of the Company Common Stock and for the option cash-out
pursuant to 2.07 (the "Exchange Fund").
(b) Exchange Procedures. Promptly after the Effective Time, the
Exchange Agent shall mail to each holder of record of a certificate or
certificates which immediately prior to the Effective Time represented
outstanding shares of the Company Common Stock whose shares were converted
into the right to receive cash pursuant to Section 2.05(b) a letter of
transmittal (which shall specify that delivery shall be effected, and risk
of loss and title to the certificates representing such shares of the
Company Common Stock shall pass, only upon delivery of the certificates
representing such shares of the Company Common Stock to the Exchange Agent
and shall be in such form and have such other provisions as the Exchange
Agent may reasonably specify), and instructions for use in effecting the
surrender of the certificates representing such shares of the Company
Common Stock, in exchange for the Per Share Amount. Upon surrender to the
Exchange Agent of a certificate or certificates representing shares of the
Company Common Stock and acceptance thereof by the Exchange Agent, the
holder thereof shall be entitled to the amount of cash into which the
number of shares of the Company Common Stock previously represented by
such certificate or certificates surrendered shall have been converted
pursuant to this Agreement. The Exchange Agent shall accept such
certificates upon compliance with such reasonable terms and conditions as
the Exchange Agent may impose to effect an orderly exchange thereof in
accordance with normal exchange practices. After the Effective Time,
there shall be no further transfer on the records of the Company or its
transfer agent of certificates representing shares of the Company Common
Stock and if such certificates are presented to the Company for transfer,
they shall be canceled against delivery of the Per Share Amount allocable
to the shares of the Company Common Stock represented by such certificate
or certificates to the record holder. If any Per Share Amount is to be
remitted to a name other than that in which the certificate for the
Company Common Stock surrendered for exchange is registered, it shall be a
condition of such exchange that the certificate so surrendered shall be
properly endorsed, with signature guaranteed, or otherwise in proper form
for transfer and that the person requesting such exchange shall pay to the
Company or its transfer agent any transfer or other taxes required by
reason of the payment of the Per Share Amount to a name other than that of
the registered holder of the certificate surrendered, or establish to the
satisfaction of the Company or its transfer agent that the tax has been
paid or is not applicable. Until surrendered as contemplated by this
Section 2.08, each certificate for shares of the Company Common Stock
shall be deemed at any time after the Effective Time to represent only the
right to receive upon surrender the Per Share Amount allocable to the
shares represented by such certificates contemplated by Section 2.07(b).
No interest will be paid or will accrue on any amount payable as a Per
Share Amount. Subject to completion of the documentation referred to
above, the Per Share Amount shall be paid at the Effective Time to holders
of the Company Common Stock.
(c) No Further Ownership Rights in the Company Stock. The Per Share
Amount paid upon the surrender for exchange of certificates representing
shares of the Company Common Stock in accordance with the terms of this
Section 2.08 shall be deemed to have been paid in full satisfaction of all
rights pertaining to the shares of the Company Common Stock represented by
such certificates.
(d) Termination of Exchange Fund. Any portion of the Exchange Fund
(including any interest and other income received by the Exchange Agent in
respect of all such funds) which remains undistributed to the holders of
the certificates representing shares of the Company Common Stock for six
months after the Effective Time shall be delivered to the Surviving
Corporation, upon demand, and any holders of shares of the Company Common
Stock prior to the Merger who have not theretofore complied with this
Section 2.08 shall thereafter look only to the Surviving Corporation and
Parent and only as general creditors thereof for payment of their claim
for the Per Share Amount to which they may be entitled.
(e) No Liability. No party to this Agreement shall be liable to any
Person (as hereinafter defined) in respect of any amount from the Exchange
Fund delivered to a public official pursuant to any applicable abandoned
property, escheat or similar law. The term "Person" means any individual,
corporation, partnership, trust or unincorporated organization or a
government or any agency or political subdivision thereof.
(f) Lost Certificates. In the event any certificate or certificates
representing shares of the Company Common Stock shall have been lost,
stolen or destroyed, upon the making of an affidavit of that fact by the
Person claiming such certificate or certificates to be lost, stolen or
destroyed, the Exchange Agent will issue in exchange for such lost, stolen
or destroyed certificate the Per Share Amount deliverable in respect
thereof as determined in accordance with this Section 2.08, provided that
the Person to whom the Per Share Amount is paid shall, as a condition
precedent to payment, indemnify Parent in an agreement reasonably
satisfactory to it against any claim that may be made against Parent or
the Company with respect to the certificate claimed to have been lost,
stolen or destroyed.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to Parent and the Purchaser as
follows:
Section 3.01 Capitalization.
The authorized capital stock of the Company consists of 200,000,000
shares of the Company Common Stock, of which 65,814,460 shares are issued
and outstanding as of the date hereof. To the Knowledge of the Company's
senior executive officers, except for the Stock Options, there are no
outstanding options, warrants or other rights of any kind to acquire
(including preemptive rights) any additional shares of capital stock of
the Company or securities convertible into or exchangeable for, or which
otherwise confer on the holder thereof any right to acquire, any such
additional shares, nor is the Company committed to issue any such option,
warrant, right or security.
Section 3.02 Authorization.
The Company has all requisite corporate power and authority to enter
into this Agreement and, subject to any necessary approval of the Merger
by the stockholders of the Company, to carry out its obligations under
this Agreement and to consummate the transactions contemplated by this
Agreement. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly
authorized by all requisite corporate action on the part of the Company
(other than, if required by the DGCL, the approval of this Agreement and
the transactions contemplated hereby by the stockholders of the Company).
The Board of Directors of the Company has [unanimously] adopted
resolutions approving this Agreement and the Merger, determined that the
terms of the Merger are advisable, fair to, and in the best interests of,
the Company's stockholders and recommended that the holders of Shares
tender their Shares pursuant to the Offer. This Agreement has been duly
executed and delivered by the Company and, assuming the due authorization,
execution and delivery hereof by Parent and the Purchaser, constitutes the
valid and binding obligation of the Company, enforceable against the
Company except as such enforceability may be limited by applicable
bankruptcy, insolvency, reorganization or similar laws affecting
creditors' rights generally or by general equitable principles.
Section 3.03 Fairness Opinion and Approval by the Special Committee.
On or prior to the date hereof, the Special Committee:
(a) approved the terms of this Agreement and the transactions
contemplated hereby as they relate to the stockholders (other than Parent,
Purchaser or any wholly owned Subsidiary of either of them) of the Company
(the "Public Stockholders"), including without limitation the Merger;
(b) has determined that the Merger and the Offer are advisable, fair
to and in the best interests of the Public Stockholders;
(c) recommended that the Board of Directors of the Company approve
and authorize this Agreement and the transactions contemplated by this
Agreement; and
(d) recommended that the Public Stockholders tender their Shares
pursuant to the Offer.
The Special Committee has received the opinion, dated as of March __,
2000, of Advisor to the effect that the consideration to be received by
the Public Stockholders in the Merger is fair to such stockholders from a
financial point of view. (A copy of the opinion has been delivered to
Parent.) Based on such opinion, and such other factors as it deemed
relevant, the Special Committee has taken all of the actions set forth in
clauses in (a) through (d) above.
Section 3.04 SEC Reports.
The Company has filed all reports and schedules required to be filed
with the SEC since January 1, 1998 (collectively, the "SEC Reports").
None of the SEC Reports, as of their respective dates, contained any
untrue statement of material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading. Each of the balance sheets (including the related notes)
included in the SEC Reports presents fairly the consolidated financial
position of the Company and the Subsidiaries as of the respective dates
thereof, and the other related statements (including the related notes)
included therein present fairly the results of operations and cash flows
of the Company and the Subsidiaries for the respective periods or as of
the respective dates set forth therein, all in conformity with generally
accepted accounting principles consistently applied during the periods
involved, except as otherwise noted therein and subject, in the case of
the unaudited interim financial statements, to normal year-end adjustments
and any other adjustments described therein.
Section 3.05 Offer Documents.
Neither Schedule 14D-9 nor any of the information supplied by the
Company for inclusion or incorporation by reference into the Offer
Documents, will, at the respective times the Offer Documents and the
Schedule 14D-9 are filed with the SEC, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in the light
of the circumstances under which they are made, not misleading. The
Company makes no representation with respect to any information supplied
by Parent, the Purchaser or any of their affiliates (other than the
Company and the Subsidiaries) expressly for inclusion in the Offer
Documents or Schedule 14D-9.
Section 3.06 Compliance With Applicable Laws.
Except as disclosed in the SEC Reports, to the Knowledge of the
senior executive officers of the Company, the businesses of the Company
and the Subsidiaries are not being conducted in violation of any law,
ordinance or regulation of any Governmental Entity, except for possible
violations which individually or in the aggregate have not had and are not
reasonably likely to have a Material Adverse Effect. No investigation or
review by any Governmental Entity with respect to the Company or any of
the Subsidiaries is pending or, to the knowledge of the Company,
threatened, nor has any Governmental Entity indicated an intention to
conduct the same, except for investigations or reviews which individually
or in the aggregate would not have, nor be reasonably likely to have, a
Material Adverse Effect.
Section 3.07 Brokers and Finders.
Other than Advisor, the Company has not employed any broker, finder,
advisor or intermediary in connection with the transactions contemplated
by this Agreement which would be entitled to a broker's, finder's or
similar fee or commission in connection therewith or upon the consummation
thereof. The Company shall pay any fees due to Advisor.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
OF PARENT AND THE PURCHASER
Section 4.01 Organization.
Parent is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Delaware. The Purchaser is a
corporation duly incorporated, validly existing and in good standing under
the laws of the State of Delaware.
Section 4.02 Authorization.
Each of Parent and the Purchaser has all corporate power and
authority to enter into this Agreement and to carry out its respective
obligations hereunder and to consummate the transactions contemplated
hereby. The execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly authorized by all
requisite corporate action on the part of Parent and the Purchaser. The
Boards of Directors of each of Parent and the Purchaser have approved this
Agreement and the Merger. This Agreement has been duly executed and
delivered by each of Parent and the Purchaser and, assuming the due
authorization, execution and delivery hereof by the Company, constitutes
the valid and binding obligation of each of Parent and the Purchaser,
enforceable against each of Parent and the Purchaser except as the
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, or similar laws affecting creditors' rights generally or
by general equitable principles.
Section 4.03 No Violations; Consents and Approvals.
(a) Neither the execution, delivery and performance of this
Agreement by Parent and the Purchaser nor the consummation by Parent and
the Purchaser of the transactions contemplated hereby will:
(i) violate any provision of the respective Certificates of
Incorporation or By-laws of Parent or the Purchaser;
(ii) conflict with, result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default
(or give rise to any right of termination, amendment, cancellation or
acceleration or to the imposition of any lien) under, or result in the
acceleration or trigger of any payment, time of payment, vesting or
increase in the amount of any compensation or benefit payable pursuant to,
the terms, conditions or provisions of any note, bond, mortgage,
indenture, guarantee or other evidence of indebtedness, lease, license,
contract, agreement, plan or other instrument or obligation to which
Parent or the Purchaser is a party or by which either of them or any of
their assets may be bound; or
(iii) conflict with or violate any Laws applicable to Parent or
the Purchaser or any of their properties or assets; except in the case of
clauses (ii) and (iii) for such conflicts, violations, breaches, defaults
or liens which individually and in the aggregate would not be reasonably
likely to have a material adverse effect on the business, results of
operations or financial condition of Parent and the Purchaser, taken as a
whole, or materially impair or delay the consummation of the transactions
contemplated hereby.
(b) No filing or registration with, declaration or notification to,
or order, authorization, consent or approval of, any Governmental Entity
or any other Person is required in connection with the execution, delivery
and performance of this Agreement by Parent or the Purchaser or the
consummation by Parent or the Purchaser of the transactions contemplated
hereby, except:
(i) applicable requirements under the Exchange Act;
(ii) the filing of the Certificate of Merger with the Secretary
of State of the State of Delaware; and
(iii) such other consents, approvals, orders, authorizations,
notifications, registrations, declarations and filings the failure of
which to be obtained or made individually and in the aggregate would not
have, nor be reasonably likely to have, a material adverse effect on the
business, results of operations or financial conditions of Parent and the
Purchaser, taken as a whole, or materially impair or delay the
consummation of the transactions contemplated hereby.
Section 4.04 Schedule TO.
None of the information supplied or to be supplied in writing by
Parent or the Purchaser for inclusion or incorporation by reference in the
Schedule TO and the Schedule 14D-9 (and any amendment thereof or
supplement thereto), will contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading. No
representation is made by Parent or the Purchaser with respect to any
information supplied by the Company for inclusion in the Schedule TO or
Schedule 14D-9.
Section 4.05 Brokers and Finders.
Other than Xxxxxxx Xxxxx & Co., neither Parent nor the Purchaser has
employed any broker, finder, advisor or intermediary in connection with
the transactions contemplated by this Agreement which would be entitled to
a broker's, finder's or similar fee or commission in connection therewith
or upon the consummation thereof. The Purchaser shall pay any fees due to
Xxxxxxx Sachs & Co.
Section 4.06 Litigation.
There is no action, suit or proceeding pending or, to the knowledge
of Parent or the Purchaser, threatened against Parent or the Purchaser at
law, in equity or otherwise, in, before or by any court or governmental
agency or authority which would reasonably be likely to have a material
adverse effect on the ability of Parent or the Purchaser to perform their
respective obligations under this Agreement.
Section 4.07 Financing.
Parent will have at the Closing sufficient funds to perform its
obligations under this Agreement.
ARTICLE V
CERTAIN COVENANTS AND AGREEMENTS
Section 5.01 Conduct of Business.
From the date of this Agreement to the Effective Time, the Company
covenants and agrees to do, and to cause the Subsidiaries to do, except as
otherwise expressly contemplated by this Agreement or consented to in
writing by Parent, the following:
(a) Ordinary Course. The Company and each of the Subsidiaries shall
operate the businesses conducted by them in the ordinary and usual course
and shall use their reasonable efforts to preserve intact their present
business organizations, keep available the services of their present
officers and key employees and preserve their relationships with material
customers and suppliers and others having business dealings with them to
the end that their goodwill and on-going businesses shall be unimpaired at
the Effective Time.
(b) Accounting Principles; Liabilities. The Company shall not, and
shall not permit any Subsidiary to:
(i) change any of the accounting principles or practices used
by it, except as may be required as a result of a change in law or in
generally accepted accounting principles;
(ii) pay, discharge or satisfy any claims, liabilities or
obligations (absolute, accrued, asserted or unasserted, contingent or
otherwise), other than the payment, discharge, or satisfaction in the
ordinary course of business and consistent with past practice.
(c) Employee Benefits; Executive Compensation. Except for actions
made in the ordinary course of business consistent with past practice, the
Company shall not, and shall not permit any Subsidiary to increase the
compensation payable to or become payable to its directors, officers or
employees, pay any bonus, grant any severance or termination pay to, or
enter into or amend any employment or severance agreement with, any
director, officer or other employees of the Company or any Subsidiary,
establish, adopt, enter into or amend any collective bargaining, bonus,
profit sharing, thrift, compensation, stock option, restricted stock,
pension, retirement, deferred compensation, employment, termination,
severance or other plan, agreement, trust, fund, policy or arrangement for
the benefit of any current or former directors, officers or employees,
materially change any actuarial assumption or other assumption used to
calculate funding obligations with respect to any pension or retirement
plan, or change the manner in which contributions to any such plan are
made or the basis on which such contributions are determined, except, in
each case, as may be required by law or contractual commitments which are
existing as of the date of this Agreement.
(d) Other Business. Except for such actions as may be required by
law, the Company shall not, and shall not permit any Subsidiary to, take
any action that will result in any of the representations and warranties
of the Company set forth in this Agreement becoming untrue or in any of
the conditions to the Merger set forth in Article VI not being satisfied.
Section 5.02 Announcement.
Neither the Company, on the one hand, nor Parent or the Purchaser, on
the other hand, shall issue any press release or otherwise make any public
statement with respect to this Agreement and the transactions contemplated
hereby without the prior consent of the other (which consent shall not be
unreasonably withheld), except as may be required by applicable law or
stock exchange regulation. Notwithstanding anything in this Section 5.02
to the contrary, Parent, the Purchaser and the Company will, to the extent
practicable, consult with each other before issuing, and provide each
other the opportunity to review and comment upon, any such press release
or other public statements with respect to this Agreement and the
transactions contemplated hereby whether or not required by law.
Section 5.03 No Solicitation.
From the date of this Agreement to the Effective Time, the Company
covenants and agrees that the Company shall not, nor shall it authorize or
permit any of the Subsidiaries or any officer, director, employee,
investment banker, attorney or other advisor or representative of the
Company or any of the Subsidiaries ("the Company Representatives") to,
directly or indirectly:
(a) solicit, initiate, or encourage the submission of, or approve or
recommend, or propose publicly to approve or recommend any Acquisition
Proposal (as defined below);
(b) enter into any agreement with respect to any Acquisition
Proposal; or
(c) solicit, initiate, participate in, or encourage any discussions
or negotiations regarding, or furnish to any Person (other than Parent or
any of its affiliates or representatives) any information for the purpose
of facilitating the making of, or take any other action to facilitate any
inquiries or the making of, any proposal that constitutes, or may
reasonably be expected to lead to, any Acquisition Proposal.
Without limiting the foregoing, it is understood that any violation,
of which the Company or any of the Subsidiaries had knowledge at the time
of such violation, of the restrictions set forth in the immediately
preceding sentence by any officer, director, employee, investment banker,
attorney, employee, or other advisor or representative of the Company or
any of the Subsidiaries, whether or not such Person is purporting to act
on behalf of the Company or any of the Subsidiaries or otherwise, shall be
deemed to be a breach of this Section 5.03 by the Company.
The Company shall promptly advise Parent of any Acquisition Proposal
and any inquiries with respect to any Acquisition Proposal. For purposes
of this Agreement, "Acquisition Proposal" means any proposal for a merger
or other business combination involving the Company or any proposal or
offer to acquire in any manner, directly or indirectly, any equity
interest in the Company or a material portion of the assets of the
Company. Nothing contained in this Section 5.03 shall prohibit the
Company from taking and disclosing to its stockholders a position
contemplated by Rules 14d-9 and 14e-2(a) promulgated under the Exchange
Act.
Section 5.04 Notification of Certain Matters.
The Company shall give prompt notice to Parent, and Parent shall give
prompt notice to the Company, of:
(a) the occurrence, or nonoccurrence, of any event the occurrence,
or nonoccurrence, of which would be reasonably likely to cause any
representation or warranty contained in this Agreement to be untrue or
inaccurate in any material respect at or prior to the Effective Time; and
(b) any material failure of the Company or Parent, as the case may
be, to comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it hereunder, provided, however, that the
delivery of any notice pursuant to this Section 5.04 shall not limit or
otherwise affect the remedies available hereunder to the party receiving
such notice.
Section 5.05 Directors' and Officers' Indemnification.
(a) Parent shall cause the certificate of incorporation and the By-
laws of the Surviving Corporation to contain the provisions with respect
to indemnification and exculpation from liability set forth in the
Company's Certificate of Incorporation and By-Laws on the date of this
Agreement, which provisions shall not be amended, repealed or otherwise
modified for a period of six years from the Effective Time in any manner
that would adversely affect the rights thereunder of individuals who on or
prior to the Effective Time were directors, officers, employees or agents
of the Company, unless such modification is required by law. Parent
hereby guarantees the payment obligations of the Surviving Corporation
arising from the indemnification and exculpation provisions referred to in
the preceding sentence.
(b) Parent or the Surviving Corporation shall maintain in effect for
six years from the Effective Time policies of directors' and officers'
liability insurance containing terms and conditions which are not less
advantageous to the insured than any such policies of the Company
currently in effect on the date of this Agreement (the "Company Insurance
Policies"), with respect to matters occurring prior to the Effective Time,
to the extent available, and having the maximum available coverage under
any such the Company Insurance Policies.
Section 5.06 Access.
Between the date of this Agreement and the Effective Time, the
Company shall (and shall cause each of the Subsidiaries to) afford the
officers, employees, accountants, counsel, financing sources and other
representatives of Parent, full access to all of its properties, books,
contracts, commitments and records and during such period, the Company
shall (and shall cause each of the Subsidiaries to) furnish promptly to
Parent:
(a) a copy of each report, schedule, registration statement and
other document filed or received by it during such period pursuant to the
requirements of federal securities laws; and
(b) all other information concerning its business, properties and
personnel as Parent may reasonably request.
Section 5.07 Reasonable Best Efforts.
Before Closing, upon the terms and subject to the conditions of this
Agreement, Parent, the Purchaser and the Company agree to use their
respective reasonable best efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all things necessary, proper or
advisable (subject to applicable laws) to consummate and make effective
the Merger and other transactions contemplated by this Agreement as
promptly as practicable including, but not limited to:
(a) the preparation and filing of all forms, registrations and
notices required to be filed to consummate the Merger and the other
approvals, consents, orders, exemptions or waivers by any third party or
Governmental Entity;
(b) the preparation of any disclosure documents requested by Parent
to facilitate financing of any of the transactions contemplated by this
Agreement; and
(c) the satisfaction of the other parties' conditions to Closing.
Section 5.08 Purchaser Compliance.
Parent shall cause the Purchaser to comply with all of its
obligations under this Agreement.
Section 5.09 Obligation of Parent.
Parent shall not take any action, and it shall use its best efforts
not to permit any director of the Company who is an employee of Parent to
take any action, that would cause the Company to breach any of the
representations, warranties or agreements made by the Company in this
Agreement.
ARTICLE VI
CONDITIONS PRECEDENT
Section 6.01 Conditions to Each Party's Obligation to Effect the Merger.
The respective obligation of each party to effect the Merger shall be
subject to the satisfaction on or prior to the Closing Date of each of the
following conditions (any of which may be waived by the parties hereto in
writing, in whole or in part, to the extent permitted by applicable law):
(a) No Injunction or Proceeding. No order or injunction of a court
of competent jurisdiction, shall be in effect, no statute, rule or
regulation shall have been enacted by a Governmental Entity and no action,
suit or proceeding by any Governmental Entity shall have been instituted
or threatened, which prohibits the consummation of the Merger or
materially challenges the transactions contemplated hereby.
(b) Consents. Other than filing the Certificate of Merger, and
except as would not be reasonably likely to have a Material Adverse
Effect, all consents, approvals and authorizations of and filings with
Governmental Entities required for the consummation of the transactions
contemplated hereby, if any, shall have been obtained or effected or
filed.
(c) Purchase of Shares in Offer. Parent, the Purchaser or their
affiliates shall have purchased Shares pursuant to the Offer.
Section 6.02 Conditions to the Obligations of Parent and the Purchaser
to Effect the Merger.
The obligations of Parent and the Purchaser to effect the Merger are
further subject to the satisfaction or waiver of each of the following
conditions prior to or at the Closing Date:
(a) Representations and Warranties. The representations and
warranties of the Company contained in this Agreement shall be true and
correct in all material respects at and as of the Effective Time as though
made at and as of the Effective Time, except to the extent that any such
representation or warranty is made as of a specified date, in which case
such representation or warranty shall have been true and correct in all
material respects as of such date.
(b) Agreements. The Company shall have performed and complied in
all material respects with all of its undertakings and agreements required
by this Agreement to be performed or complied with by it prior to or at
the Closing Date.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
Section 7.01 Termination.
This Agreement may be terminated and the Merger may be abandoned at
any time prior to the Effective Time:
(a) by the mutual written consent of the Boards of Directors of
Parent, the Purchaser and the Company (upon recommendation of the Special
Committee);
(b) by either the Company upon the recommendation of the Special
Committee, on the one hand, or Parent and the Purchaser, on the other
hand, if:
(i) (x) the Offer shall have expired without any Shares being
purchased pursuant to the Offer or (y) the Purchaser shall not have
accepted for payment any Shares pursuant to the Offer by July 1, 2000;
provided, however, that the right to terminate this Agreement under this
Section 7.01(b)(i) shall not be available to any party whose failure to
fulfill any obligation under this Agreement has been the cause of, or
resulted in, the failure of the Purchaser to purchase the Shares pursuant
to the Offer on or before such date; or
(ii) any Governmental Entity shall have issued an order, decree
or ruling or taken any other action (which order, decree, ruling or other
action the parties to this Agreement shall use their reasonable efforts to
lift), which permanently restrains, enjoins or otherwise prohibits the
acceptance for payment of, or payment for, Shares pursuant to the Offer or
the Merger and such order, decree, ruling or other action shall have
become final and nonappealable.
(c) by the Company, if Parent or the Purchaser shall have breached
in any material respect any of their respective representations,
warranties, covenants or other agreements contained in this Agreement, and
the breach cannot be or has not been cured within 30 days after the giving
of written notice by the Company to Parent or the Purchaser, as
applicable; or
(d) by Parent, if:
(i) before the purchase of Shares by the Purchaser pursuant to
the Offer, the Special Committee shall have withdrawn, modified or changed
in a manner adverse to Parent or the Purchaser its approval or
recommendation of the Offer, this Agreement or the Merger or shall have
recommended an Acquisition Proposal or shall have executed an agreement in
principle or a definitive agreement relating to an Acquisition Proposal or
similar business combination with a person or entity other than Parent,
the Purchaser or their affiliates; or
(ii) before the purchase of Shares pursuant to the Offer, the
Company shall have breached any representation, warranty, covenant or
other agreement contained in this Agreement which (x) would give rise to
the failure of a condition set forth in paragraph (b)(vi) or (b)(vii) of
Annex A to this Agreement and (y) cannot be or has not been cured within
30 days after the giving of written notice to the Company; provided,
however, that Parent may not terminate this Agreement if any affirmative
action by Parent or any agent or employee of Parent was the cause of the
breach by the Company of any representation, warranty or covenant.
Section 7.02 Effect of Termination.
If this Agreement is terminated as provided in Section 7.01, written
notice of such termination shall be given by the terminating party or
parties to the other party or parties specifying the provision of this
Agreement pursuant to which such termination is made, this Agreement shall
become null and void and there shall be no liability on the part of
Parent, the Purchaser or the Company (except as set forth in this Section
7.02 and Section 7.01 of this Agreement, each of which Sections shall
survive any termination of this Agreement); provided that nothing in this
Agreement shall relieve any party from any liability or obligation with
respect to any willful breach of this Agreement.
Section 7.03 Amendment.
The parties may amend this Agreement in writing; provided, however
any amendment of this Agreement on behalf of the Company shall be subject
to the approval of the Board of Directors of the Company which approval
shall be given only if recommended by the Special Committee.
Section 7.04 Waiver.
At any time before the Effective Time, Parent, by action taken by its
Board of Directors or the Company, by action taken by its Board of
Directors upon the recommendation of the Special Committee, may:
(i) extend the time for the performance of any of the obligations
or other acts of any other party to this Agreement; or
(ii) waive compliance with any of the agreements of any other party
or with any conditions to its own obligations. Any agreement on the part
of a party hereto to any such extension or waiver shall be valid only if
set forth in an instrument in writing signed on behalf of such party by a
duly authorized officer.
ARTICLE VIII
MISCELLANEOUS
Section 8.01 Nonsurvival of Representations and Warranties.
None of the representations and warranties in this Agreement or in
any instrument delivered pursuant to this Agreement shall survive the
Effective Time. All such representations and warranties will be
extinguished on consummation of the Merger and neither the Company, any
Subsidiary nor any of its officers, directors or employees or stockholders
shall be under any liability whatsoever with respect to any such
representation or warranty after such time. This Section 8.01 shall not
limit any covenant or agreement of the parties which by its terms
contemplates performance after the Effective Time.
Section 8.02 Expenses.
Except as contemplated by this Agreement, all costs and expenses
incurred in connection with this Agreement and the consummation of the
transactions contemplated by this Agreement shall be paid by the party
incurring such expenses.
Section 8.03 Applicable Law.
The law of the State of Delaware shall govern the rights and duties
of the parties to this Agreement.
Section 8.04 Notices.
All notices and other communications under this Agreement shall be in
writing and shall be deemed to have been duly given or made as follows:
(a) if sent by registered or certified mail in the United States,
return receipt requested, upon receipt;
(b) if sent by reputable overnight air courier (such as DHL or
Federal Express), two business days after being sent;
(c) if sent by facsimile transmission, with a copy mailed on the
same day in the manner provided in clauses (a) or (b) above, when
transmitted and receipt is confirmed by telephone; or
(d) if otherwise actually personally delivered, when delivered.
All notices and other communications under this Agreement shall be
sent or delivered as follows:
If to the Company, to:
Boise Cascade Office Products Corporation
000 Xxxx Xxxx Xxxx Xxxxxx
Xxxxxx, Xxxxxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxxxxxxx Xxxxxxxx
with a copy to:
Xxxxx X. Xxxxxxxx III
000 Xxxxxx Xxxx, Xxxxx 000
Xxxxxxxxx, XX 00000
Telephone: (000) 000-0000
and also to:
Xxxxxxx, Xxxxxx & Xxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx and Xxxxxx X. Xxxxxx
If to Parent or the Purchaser, to:
Boise Cascade Corporation
0000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxx, Xxxxx 00000
Telephone: (000) 000-0000
Fax: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxx Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000-0000
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxxxx X. Xxxxx, Esq.
Each party may change its address by written notice in accordance
with this Section.
Section 8.05 Entire Agreement
This Agreement (including the documents and instruments referred to
in this Agreement) contains the entire understanding of the parties with
respect to the subject matter contained in this Agreement, and supersedes
and cancels all prior agreements, negotiations, correspondence,
undertakings and communications of the parties, oral or written,
respecting such subject matter.
Section 8.06 Assignment.
Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned by any of the parties
(whether by operation of law or otherwise) without the prior written
consent of the other parties; provided, however, that Parent or the
Purchaser may assign this Agreement to any subsidiary of Parent or the
Purchaser. No such assignment shall relieve Parent or the Purchaser of
its obligations under this Agreement. Subject to the first sentence of
this Section 8.06, this Agreement will be binding upon, inure to the
benefit of and be enforceable by, the parties and their respective
successors and assigns.
Section 8.07 Headings; References
The article, section and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. All references herein to
"Articles" or "Sections" shall be deemed to be references to Articles or
Sections of this Agreement unless otherwise indicated.
Section 8.08 Counterparts.
This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which shall be
considered one and the same agreement.
Section 8.09 No Third Party Beneficiaries.
Except as provided in Section 5.05, nothing in this Agreement,
express or implied, is intended to confer upon any person or entity not a
party to this Agreement any rights or remedies under or by reason of this
Agreement.
Section 8.10 Severability; Enforcement.
Any term or provision of this Agreement that is invalid or
unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of
this Agreement or affecting the validity or enforceability of any of the
terms or provisions of this Agreement in any other jurisdiction. If any
provision of this Agreement is so broad as to be unenforceable, the
provisions shall be interpreted to be only so broad as is enforceable.
Section 8.11 Certain Definitions.
As used in this Agreement, the following terms shall have the
meanings set forth in this section:
"Knowledge" - a person shall be deemed to have "Knowledge" of a
particular fact or matter if he is actually aware of such fact or matter.
"Material Adverse Effect" means an effect on the business, assets,
liabilities, results of operations or financial condition of the Company
that has resulted in or is reasonably likely to result in, a reduction
from 1999 levels in Company revenues of 12% or in Company earnings before
interest and taxes of 15%.
"Subsidiary" means any corporation, joint venture, partnership,
limited liability company or other entity of which the Company, directly
or indirectly, owns or controls capital stock (or other equity interests)
representing more than fifty percent of the general voting power under
ordinary circumstances of such entity.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the date first above written.
BOISE CASCADE CORPORATION
By: /s/ Xxxxxx X. Xxxxx
Title: Chairman & CEO
BOISE ACQUISITION CORPORATION
By: /s/ Xxxxx X. Xxxxxxx
Title: Secretary
BOISE CASCADE OFFICE PRODUCTS CORPORATION
By: /s/ A. Xxxxx Xxxxxxx III
Title: Senior Vice President
ANNEX A
Certain Conditions of the Offer. Notwithstanding any other
provisions of the Offer, and in addition to (and not in limitation of) the
Purchaser's rights to extend and amend the Offer at any time in its sole
discretion (subject to the provisions of the Agreement), the Purchaser
shall not be required to accept for payment or, subject to any applicable
rules and regulations of the SEC, including Rule 14e-1(c) under the
Exchange Act (relating to the Purchaser's obligations to pay for or return
tendered Shares promptly after termination or withdrawal of the Offer),
pay for, and may delay the acceptance for payment of or, subject to the
restriction referred to above, the payment for, any tendered Shares, and
may terminate or amend the Offer as to any Shares not then paid for, if:
(a) the Minimum Condition has not been satisfied, or
(b) at any time on or after the date of the Agreement and before the
Expiration Date, any of the following events shall occur:
(i) there shall be threatened or pending any suit, action or
proceeding by any Governmental Entity which:
(A) seeks to prohibit or impose any material limitations
on Parent's or the Purchaser's ownership or operation (or that of any of
their respective subsidiaries or affiliates) of all or a material portion
of the Company's businesses or assets, or to compel Parent or the
Purchaser or their respective subsidiaries and affiliates to dispose of or
hold separate any material portion of the business or assets of the
Company or Parent and their respective subsidiaries in each case taken as
a whole;
(B) challenges the acquisition by Parent or the
Purchaser of any Shares under the Offer, seeks to restrain or prohibit the
making or consummation of the offer or the Merger or the performance of
any of the other transactions contemplated by this Agreement, or seeks to
obtain from the Company, Parent or the Purchaser any damages that are
material in relation to the Company and the Subsidiaries taken as a whole;
(C) seeks to impose material limitations on the ability
of the Purchaser, or render the Purchaser unable, to accept for payment,
pay for or purchase some or all of the Shares pursuant to the Offer and
the Merger;
(D) seeks to impose material limitations on the ability
of the Purchaser or Parent effectively to exercise full rights of
ownership of the Shares, including, without limitation, the right to vote
Shares purchased by it on all matters properly presented to the Company's
shareholders; or
(E) otherwise is reasonably likely to have a material
adverse affect on the consolidated financial condition, businesses or
results of operations of the Company and the Subsidiaries, taken as a
whole; or
(ii) there shall be any statute, rule, regulation, judgment,
order or injunction enacted, entered, enforced, promulgated or deemed
applicable to the Offer or the Merger, or any other action shall be taken
by any Governmental Entity, that is reasonably likely to result, directly
or indirectly, in any of the consequences referred to in clauses (A)
through (E) of paragraph (i) above; or
(iii) there shall have occurred:
(A) any general suspension of trading in, or limitation
on prices for, securities on the New York Stock Exchange or in the NASDAQ
National Market System, for a period in excess of ten consecutive trading
hours (excluding suspensions or limitations resulting solely from physical
damage or interference with such exchanges not related to market
conditions);
(B) a declaration of a banking moratorium or any
suspension of payments in respect of banks in the United States (whether
or not mandatory);
(C) a commencement of a war, or other international or
national calamity directly involving the United States;
(D) any limitation (whether or not mandatory) by any
United States or foreign governmental authority on the extension of credit
by banks or other financial institutions;
(E) a change in general financial bank or capital market
conditions which materially or adversely affects the ability of financial
institutions in the United States to extend credit or syndicate loans; or
(F) in the case of any of the foregoing existing at the
time of the commencement of the Offer, a material acceleration or
worsening thereof; or
(iv) there shall have occurred an event or events which in the
aggregate have resulted in or are reasonably likely to result in, a
reduction from 1999 levels in Company revenues of 12% or in Company
earnings before interest and taxes of 15%, excluding any reduction
attributable to any action of the Company which is approved in writing by
the Board of Directors of the Company or an officer of Parent.
(v) the Company Board of Directors or any committee thereof
shall have:
(A) withdrawn, modified or changed in a manner adverse to
Parent or the Purchaser its approval or recommendation of the Offer, this
Agreement or the Merger;
(B) recommended the approval or acceptance of an
Acquisition Proposal from, or similar business combination with, a person
or entity other than Parent, the Purchaser or their affiliates; or
(C) executed an agreement in principle or definitive
agreement relating to an Acquisition Proposal from, or similar business
combination with, a person or entity other than Parent, the Purchaser or
their affiliates; or
(vi) any of the representations and warranties of the Company
set forth in this Agreement that are qualified as to materiality shall not
be true and correct and any such representations and warranties that are
not so qualified shall not be true and correct in any material respect, in
each case as of the date of this Agreement and as of the scheduled
expiration of the Offer; provided, however, that if the failure of a
representation or warranty to be true and correct was caused by any
affirmative action by Parent or any agent or employee of Parent, Parent
may not rely upon such failure as a basis for not proceeding in any manner
with the Offer; or
(vii) the Company shall have failed to perform in any material
respect any material obligation or to comply in any material respect with
any material agreement or covenant of the Company to be performed or
complied with by it under this Agreement; provided, however, that if the
failure to perform or comply was caused by any affirmative action by
Parent, Parent may not rely upon such failure as a basis for not
proceeding in any manner with the Offer; or
(viii) all governmental consents necessary to the consummation
of the Offer or the Merger, whether federal, state or local shall not have
been obtained, other than consents the failure to obtain which would not
have a material adverse effect on the Company and the Subsidiaries, taken
as a whole; or
(ix) this Agreement shall have been terminated in accordance
with its terms;
which in the judgment of Parent, reasonably exercised, in any such case,
and regardless of the circumstances giving rise to such condition, makes
it inadvisable to proceed with the Offer and/or with the acceptance for
payment of or payment for Shares.
Except for the Minimum Condition, the foregoing conditions are for
the sole benefit of Parent and the Purchaser, may be waived by Parent or
the Purchaser, in whole or in part, at any time and from time to time in
the sole discretion of Parent or the Purchaser. The failure by Parent or
the Purchaser at any time to exercise any of the foregoing rights shall
not be deemed a waiver of any such right and each such right shall be
deemed an ongoing right which may be asserted any time and from time to
time.
