Exhibit 2.4
EXCHANGE AGREEMENT
THIS EXCHANGE AGREEMENT (this "AGREEMENT") is made as of May [___],
2005, by and between Forest Products Holdings, L.L.C. ("FPH") and Boise Cascade
Company ("BCC"). Except as otherwise indicated herein, capitalized terms used
herein are defined in Section 4 hereof.
WHEREAS, BCC is contemplating an initial public offering (the "IPO")
of shares of its Class A Common Stock, par value $0.01 per share (the "CLASS A
COMMON") and certain actions to be taken by BCH require the consent of FPH's
majority unitholder, Madison Dearborn Capital Partners IV, L.P. ("MDP") pursuant
to the terms of that certain Subscription Agreement, dated as of October 29,
2004, by and among FPH, MDP and certain other unitholders of MDP and MDP is
willing to grant such consents in exchange for, among other things, the
agreements and covenants of FPH set forth herein; and
WHEREAS, pursuant to that certain Going Public Agreement, dated as of
April 27, 2005, by and among FPH, BCH, BCC and certain other Persons party
thereto (the "GOING PUBLIC AGREEMENT"), BCC has agreed to permit FPH to exchange
2,674,516.7 shares of Class C Common Stock, par value $0.01 per share (the
"CLASS C COMMON"), being all of the issued and outstanding shares of Class C
Common owned by FPH, for a number of shares of Class A Common (the "EXCHANGED
CLASS A COMMON") determined by dividing (i) the value of the Class C Common as
of the IPO Date (as reasonably determined by BCC's pricing committee), by (ii)
the price per share at which shares of Class A Common are to be sold to the
public in the IPO.
NOW, THEREFORE, the parties hereto agree as follows:
1. AUTHORIZATION AND CLOSINGS.
(a) THE EXCHANGE. At the Closing (as hereinafter defined), BCC shall issue
to FPH the Exchanged Class A Common and, in exchange therefor, FPH shall deliver
to BCC all of its right, title and interest in and to 2,674,516.7 shares of
Class C Common (being all of the issued and outstanding shares of Class C Common
owned by FPH).
(b) THE CLOSING. The closing of the exchange of the Class C Common for
Class A Common hereunder (the "CLOSING") shall take place at the chief executive
offices of BCC immediately after BCC executes an underwriting agreement related
to the IPO. At the Closing, BCC shall deliver to FPH stock certificates
evidencing the shares of Class A Common to be issued to FPH, registered in FPH's
name, and FPH shall deliver to BCC, for cancellation, an original copy of the
certificate representing the shares of Class C Common of BCC held by FPH.
2. REPRESENTATIONS AND WARRANTIES OF BCC. As a material inducement to FPH
to enter into this Agreement and exchange the Class C Common for shares of Class
A Common, BCC hereby represents and warrants to FPH that:
(a) ORGANIZATION, CORPORATE POWER AND LICENSES. BCC is a corporation duly
organized, validly existing and in good standing under the laws of Delaware and
is qualified to
do business in every jurisdiction in which the failure to so qualify has had or
would reasonably be expected to have a material adverse effect on the financial
condition, operating results, assets or operations of BCC. BCC possesses all
requisite corporate power and authority and all material licenses, permits and
authorizations necessary to own and operate its properties, to carry on its
businesses as now conducted and presently proposed to be conducted and to carry
out the transactions contemplated by this Agreement.
(b) VALID ISSUANCE. All shares of Class A Common to be issued to FPH shall,
when issued, be duly and validly issued, fully paid and nonassessable and free
from all taxes, liens, encumbrances and charges (other than set forth in the
Securityholders Agreement and the Registration Agreement). There are no
statutory or, to BCC's knowledge, contractual stockholders preemptive rights or
rights of refusal with respect to the issuance of Class A Common, except
pursuant to the Securityholders Agreement (which, to the extent applicable, have
been waived pursuant to the Going Public Agreement). To BCC's knowledge, BCC has
not violated any applicable federal or state securities laws in connection with
the offer, sale or issuance of any of its capital stock, and the offer, sale and
issuance of the Preferred Stock hereunder do not require registration under the
Securities Act or any applicable state securities laws. To BCC's knowledge,
there are no agreements between BCC's stockholders with respect to the voting or
transfer of BCC's capital stock or with respect to any other aspect of BCC's
affairs, except for the Securityholders Agreement and the Registration
Agreement.
(c) ENFORCEABLE AGREEMENT. This Agreement has been duly authorized,
executed and delivered by BCC and constitutes the legal, valid and binding
obligation of BCC, enforceable in accordance with its terms, and the execution,
delivery and performance of this Agreement by BCC does not and shall not
conflict with, violate or cause a breach of any agreement, contract or
instrument to which BCC is a party or any judgment, order or decree to which BCC
is subject.
3. CERTAIN REPRESENTATIONS, WARRANTIES AND COVENANTS. As a material
inducement to BCC to enter into this Agreement and exchange the Class C Common
for shares of Class A Common, FPH hereby represents and warrants to BCC that:
(a) TRANSFERABILITY. The shares of Class A Common acquired hereunder are
subject to the terms of the Securityholders Agreement and Registration Agreement
to the same extent as the shares of Class C Common.
(b) ENFORCEABLE AGREEMENT. This Agreement has been duly authorized,
executed and delivered by FPH and constitutes the legal, valid and binding
obligation of FPH, enforceable in accordance with its terms, and the execution,
delivery and performance of this Agreement by FPH does not and shall not
conflict with, violate or cause a breach of any agreement, contract or
instrument to which FPH is a party or any judgment, order or decree to which FPH
is subject.
(c) OWNERSHIP. FPH owns all right, title and interest in and to the shares
of Class C Common being exchanged hereunder, free and clear of all liens,
encumbrances and other restrictions (other than those set forth under applicable
securities law, the Securityholders Agreement and the Registration Agreement).
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4. DEFINITIONS. For the purposes of this Agreement, the following terms
have the meanings set forth below:
(a) "REGISTRATION AGREEMENT" means that certain Registration Agreement,
dated as of October 29, 2004, by and among BCC and the stockholders party
thereto, as the same has been and may be amended, modified, supplemented or
waived from time to time.
(b) "SECURITYHOLDERS AGREEMENT" means that certain Securityholders
Agreement, dated as of October 29, 2004, by and among BCC and its stockholders,
as the same has been and may be amended, modified, supplemented or waived from
time to time.
5. MISCELLANEOUS.
(a) CONSENT TO AMENDMENTS. The provisions of this Agreement may be amended
or waived only with the written consent of FPH and BCC. No other course of
dealing between FPH and BCC or any delay in exercising any rights hereunder
shall operate as a waiver of any rights of BCC or FPH.
(b) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties contained herein or made in writing by any party in connection
herewith shall survive the execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby.
(c) SUCCESSORS AND ASSIGNS. Except as otherwise expressly provided herein,
all covenants and agreements contained in this Agreement by or on behalf of any
of the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether so expressed or not.
(d) SEVERABILITY. Whenever possible, each provision of this Agreement shall
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this
Agreement.
(e) COUNTERPARTS. This Agreement may be executed simultaneously in two or
more counterparts (including by facsimile or electronic transmission), any one
of which need not contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same Agreement.
(f) DESCRIPTIVE HEADINGS; INTERPRETATION. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of this
Agreement. The use of the word "including" in this Agreement shall be by way of
example rather than by limitation.
(g) GOVERNING LAW. All other issues and questions concerning the
construction, validity, enforcement and interpretation of this Agreement and any
exhibits and schedules hereto shall be governed by, and construed in accordance
with, the laws of the State of Delaware,
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without giving effect to any choice of law or conflict of law rules or
provisions (whether of the State of Delaware or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State
of Delaware. In furtherance of the foregoing, the internal law of the State of
Delaware shall control the interpretation and construction of this Agreement
(and any and all schedules and exhibits hereto), even though under that
jurisdiction's choice of law or conflict of law analysis, the substantive law of
some other jurisdiction would ordinarily apply.
(h) NOTICES. All notices, demands or other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when delivered personally to the
recipient, sent to the recipient by reputable overnight courier service (charges
prepaid) or mailed to the recipient by certified or registered mail, return
receipt requested and postage prepaid. Such notices, demands and other
communications shall be sent to the parties at the addresses to such address as
the recipient party has specified by prior written notice to the sending party.
(i) ENTIRE AGREEMENT. This Agreement contains the entire agreement between
the parties and supersedes any prior understandings, agreements or
representations by or between the parties, written or oral, which may have
related to the subject matter hereof in any way.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have executed this Exchange
Agreement on the date first written above.
BOISE CASCADE COMPANY
By: ___________________________________
Its: ___________________________________
FOREST PRODUCTS HOLDINGS, L.L.C.
By: ___________________________________
Its: ___________________________________
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