Exhibit 10.26
GOING PUBLIC AGREEMENT
THIS GOING PUBLIC AGREEMENT (this "Agreement") is made as of April
[___], 2005, by and among Boise Cascade Holdings, L.L.C., a Delaware limited
liability company ("BCH"), Boise Cascade Land & Timber Holdings Corp., a
Delaware corporation ("BLTH"), OfficeMax Incorporated, a Delaware corporation
("OMX"), Kooskia Investment Corporation, a Delaware corporation ("Kooskia") and
Forest Products Holdings, L.L.C., a Delaware limited liability company ("FPH").
Capitalized terms used, but not otherwise defined, herein shall have the
meanings given to such terms in that certain Operating Agreement, dated as of
October 29, 2004, by and among BCH, OMX and FPH (as amended from time to time,
the "Operating Agreement").
WHEREAS, BCH (to be renamed Boise Cascade Company) is considering an
initial public offering of its Class A Common Stock, par value $0.01 per share
("Class A Common") pursuant to a registration statement to be filed with the
Securities and Exchange Commission (the "IPO", and the date that shares of BCH
are sold by BCH in the IPO, the "IPO Date").
NOW THEREFORE, in consideration of the mutual promises made herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
Section 1. CERTAIN TRANSACTIONS.
1A. CORPORATE CONVERSION. If determined by BCH's Board of Managers
in accordance with the last sentence of this Section 1A, prior to the IPO Date,
BCH shall file with the Delaware Secretary of State a Certificate of Conversion
in substantially the form of Exhibit A attached hereto providing for the
conversion of BCH from a limited liability company to a corporation pursuant to
Delaware law. Each party hereto agrees that, upon such conversion becoming
effective under the laws of the State of Delaware, each Series A Common Unit
shall, automatically and without further action on the part of any party, be
converted into one share of Series A Preferred Stock, par value $0.01 per share,
of BCH (the "Preferred Stock"), the Series B Common Units shall, automatically
and without further action on the part of any party, be converted into shares of
Class B Common Stock, par value $0.01 per share, of BCH (the "Class B Common"),
and the Series C Common Units shall, automatically and without further action on
the part of any party, be converted into shares of Class C Common Stock, par
value $0.01 per share, of BCH (the "Class C Common"). Effective upon such
conversion, each party agrees that (i) each of the Preferred Stock, the Class A
Common and the Class B Common shall have the rights and preferences set forth in
the Certificate of Incorporation of BCH substantially in the form of Exhibit B
attached hereto (the "BCH Certificate"), (ii) the number of outstanding shares
of each of the Class B Common and Class C Common relative to the total number of
outstanding shares of Class B Common and Class C Common immediately after such
conversion shall, subject only to rounding to the nearest whole share in
accordance with the BCH Certificate, reflect the same percentage as the number
of each of the outstanding Series B Common Units and the outstanding Series C
Common Units relative to the total number of outstanding Series B Common Units
and outstanding Series C Common Units immediately prior to such conversion and
(iii) the percentage of Class B Common of each holder relative to all holders of
Class B Common immediately after such conversion shall, subject only to rounding
to the nearest whole share in accordance with the BCH Certificate, be the same
as the percentage of Series B Common Units held by such holder relative to all
holders of Series B Common Units immediately prior to such conversion.
Notwithstanding anything herein to the contrary, each party hereby acknowledges
and agrees that, in accordance with Section 10.2 of the Operating Agreement, for
all purposes of applicable law and the Operating Agreement, BCH's Board of
Managers shall have the sole discretion as to whether and when BCH should
convert from a limited liability company to a corporation.
1B. EXCHANGE OF CLASS C COMMON FOR CLASS A COMMON. Promptly after
execution of the underwriting agreement related to the IPO, FPH shall deliver to
BCH all of its right, title and interest to all of the Class C Common of BCH
owned by FPH as of the date of such exchange and, in consideration therefor, BCH
shall issue to FPH a number of shares of Class A Common determined by dividing
(i) the value of the Class C Common as of the IPO Date (as reasonably determined
by BCH's board), by (ii) the price per share at which shares of Class A Common
are to be sold to the public in the IPO (as set forth in the underwriting
agreement). FPH represents and warrants to BCH that, as of the date of this
Agreement, FPH owns and as of the date of the exchange, will own, all, right,
title and interest in and to the shares of Class C Common being so exchanged. In
connection with such exchange, FPH shall deliver to BCH the certificate
representing the shares of Class C Common being exchanged, endorsed in blank or
together with an assignment separate from certificate, and BCH shall deliver to
FPH a certificate representing the shares of Class A Common being issued in such
exchange. For the avoidance of doubt, neither FPH nor BCH shall have any
obligations under this Section 1B to effectuate such exchange unless the
underwriting agreement referred to in the first sentence of this Section 1B is
executed and delivered by the respective parties thereto.
1C. PURCHASE OF PREFERRED STOCK. If, but only if, the IPO is
consummated on or prior to December 31, 2005, BCH shall purchase from OMX, and
OMX shall sell to BCH, on or promptly after the IPO Date, all of OMX's right,
title and interest in and to the shares of Preferred Stock owned by OMX, for an
aggregate purchase price (the "Preferred Stock Purchase Price") equal to (i) the
aggregate Liquidation Value (as defined in the BCH Certificate), plus (ii)
Series A Preferred Accumulated Dividends (as defined in the BCH Certificate),
plus (iii) all other accrued and unpaid dividends on the Liquidation Value and
Series A Preferred Accumulated Dividends of the Preferred Stock (calculated in
the cases of clauses (ii) and (iii) through the repurchase date in accordance
with the BCH Certificate). OMX represents and warrants to BCH that, as of the
date of this Agreement, OMX owns and as of the date of the purchase and sale
contemplated by this Section 1C, will own, all, right, title and interest in and
to the Preferred Stock being so purchased and sold.
1D. PURCHASE OF BLTH SERIES A COMMON AND BLTH SERIES B COMMON.
(i) If, but only if, the IPO is consummated on or prior to
December 31, 2005, BCH agrees that, on or promptly after the IPO Date, it shall
make a capital contribution to Boise Cascade L.L.C. ("BC") in an aggregate
amount (the "Note Repayment Amount") equal to the excess of (A) the aggregate
principal amount plus accrued but unpaid interest outstanding on that certain
Promissory Note, dated as of February 4, 2005, issued in favor of Boise Land &
Timber Corp. ("BLT") by BC (the "Intercompany Note") minus (B) intercompany
amounts owed by BLT and its subsidiaries to BC and its subsidiaries as of the
date of repayment. BC shall then pay the Note Repayment Amount to BLT in full
satisfaction of the Intercompany Note (which shall then be canceled) and BLT
shall pay a dividend to BLTH in an aggregate amount equal to the Note Repayment
Amount. In order to expedite the transactions referenced herein, and without
otherwise impairing any obligations of any party hereto, each of BC and BLT
hereby direct that the Note Repayment Amount may be paid directly to BLTH or its
designee(s) in satisfaction of the obligations of BC and BLT under this Section
1D(i).
(ii) If, but only if, the IPO is consummated on or prior to
December 31, 2005, promptly after receipt of the Note Repayment Amount, BLTH
shall purchase from Kooskia, and Kooskia shall sell to BLTH, all of Kooskia's
right, title and interest in and to the shares of Series A Common Stock, par
value $0.01 per share, of BLTH (the "BLTH Series A Common") owned by Kooskia,
for an aggregate purchase price (the "BLTH Series A Common Stock Purchase
Price") equal to (A) the aggregate Liquidation Value (as defined in the BLTH
certificate of incorporation), plus (B) the Series A Common Accumulated
Dividends (as defined in the BLTH certificate of incorporation), plus (C) all
other accrued and unpaid dividends on the Liquidation Value and Series A
Accumulated Dividends of the
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BLTH Series A Common (calculated in the cases of clauses (B) and (C) through the
repurchase date in accordance with the BLTH certificate of incorporation).
Kooskia represents and warrants to BLTH that, as of the date of this Agreement,
Kooskia owns and as of the date of the purchase and sale, will own, all, right,
title and interest in and to the BLTH Series A Common being so purchased and
sold.
(iii) If, but only if, the IPO is consummated on or prior to
December 31, 2005, promptly after receipt of the Note Repayment Amount, (a) BLTH
shall purchase from Kooskia, and Kooskia shall sell to BLTH, 95% of the shares
of Series B Common Stock of BLTH, par value $0.01 per share (the "BLTH Series B
Common") held by Kooskia at a price per share equal to the BLTH Series B Per
Share Repurchase Price (as hereinafter defined) and (b) BLTH shall purchase from
FPH, and FPH shall sell to BLTH, 95% of the shares of BLTH Series B Common held
by FPH at a price per share equal to the BLTH Series B Per Share Repurchase
Price. When used herein, "BLTH Series B Per Share Repurchase Price" means an
amount determined by dividing (x) the excess of Note Repayment Amount over the
BLTH Series A Common Stock Purchase Price by (y) 95% of the shares of BLTH
Series B Common held by Kooskia and FPH. Kooskia represents and warrants to BLTH
that, as of the date of this Agreement, Kooskia owns and as of the date of the
purchase and sale, will own, all, right, title and interest in and to the BLTH
Series B Common being so purchased and sold by Kooskia. FPH represents and
warrants to BLTH that, as of the date of this Agreement, FPH owns and as of the
date of the purchase and sale, will own, all, right, title and interest in and
to the BLTH Series B Common being so purchased and sold.
1E. DECLARATION AND PAYMENT OF DIVIDEND ON CLASS B COMMON. If, but
only if, the IPO is consummated on or prior to December 31, 2005, BCH shall
declare and pay a one-time dividend in respect of its Class B Common in an
aggregate amount equal to the Aggregate Dividend Amount and each holder of Class
B Common as of the record date for such dividend shall be entitled to receive a
portion of the Aggregate Dividend Amount determined by multiplying the Aggregate
Dividend Amount by a fraction, the numerator of which is the number of
outstanding shares of Class B Common held by such holder as of the record date
for such dividend and the denominator of which is the total number of
outstanding shares of Class B Common as of the record date for such dividend
(for each holder, such fraction, such holder's "PRO RATA SHARE"). When used
herein, "Aggregate Dividend Amount" means the aggregate net proceeds received by
BCH in the IPO (i.e., net of expenses related to or paid with proceeds from the
IPO, including underwriters' fees), MINUS the Preferred Stock Purchase Price
MINUS the Note Repayment Amount; PROVIDED that "Aggregate Dividend Amount" shall
not include any proceeds received from the exercise or sale of the underwriters'
over-allotment option or be reduced by underwriters' fees related to exercise or
sale of the underwriters' over-allotment option. In the event that the
over-allotment option is exercised in whole or in part, BCH shall declare and
pay a dividend out of the net proceeds thereof received by BCH (i.e., net of
expenses related to or paid with proceeds from the exercise and sale of the
underwriters' over-allotment option, including underwriters' fees) and such
dividend shall be paid to the holders of Class B Common, with each holder of
Class B Common as of the record date for such dividend entitled to receive a
portion of such dividend determined by multiplying the aggregate amount of such
dividend by such holder's Pro Rata Share. In the event that all or a portion of
the over-allotment option expires without exercise, BCH shall declare and pay a
stock dividend of shares of Class A Common that were available for exercise (but
not exercised) in the over-allotment option to the holders of Class B Common
outstanding as of the record date for such dividend, with each holder of Class B
Common as of the record date for such dividend entitled to receive a number of
shares of Class A Common (rounded to the nearest whole share) determined by
multiplying the aggregate number of shares of Class A Common to be distributed
in the stock dividend by such holder's Pro Rata Share.
1F. CLOSING. BCH shall give OMX and FPH written notice at least two
business days prior to the date that it intends to consummate the purchase and
sale of the Preferred Stock, the BLTH Series A Common and the BLTH Series B
Common in accordance with the terms hereof (which notice
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may nonetheless provide that such repurchase is conditioned upon the IPO being
consummated) and the time and place for the closing of the purchase and sale of
the Preferred Stock, the BLTH Series A Common and the BLTH Series B Common
hereunder (the "Closing"). At the Closing, BCH or BLTH, as the case may be,
shall pay the amount required to be paid to OMX, Kooskia and/or FPH in respect
of the Preferred Stock, BLTH Series A Common and/or BLTH Series B Common held by
such Party, respectively, as determined in accordance with this Agreement, by
wire transfer of immediately available funds to an account designated by OMX,
Kooskia and FPH, respectively, and OMX, Kooskia and FPH, respectively, shall
deliver certificates representing the shares of Preferred Stock, BLTH Series A
Common and/or BLTH Series B Common held by such party, endorsed in blank or
together with an assignment separate from certificate.
Section 2. CERTAIN COVENANTS AND AGREEMENTS.
2A. SECURITYHOLDERS AGREEMENT. Each of BCH, FPH and OMX
acknowledges and agrees for the benefit of the other parties thereto and the
managing underwriters of the IPO that, upon consummation of the IPO, all rights
and obligations of the parties to the Securityholders Agreement shall terminate
(other than rights and obligations which by their terms survive termination of
the Securityholders Agreement) without liability to any party thereunder.
Without limiting the generality of the foregoing, each of OMX and FPH expressly
agree that they are waiving all rights under Section 6 of the Securityholders
Agreement and all other preemptive rights in connection with the transactions
contemplated hereby (including, without limitation, the issuance of the Class A
Common in connection with the IPO, the issuance of securities upon conversion of
BCH from a limited liability company to a corporation and the issuance of Class
A Common in exchange for Class C Common).
2B. REGISTRATION RIGHTS AGREEMENT. Each of FPH and OMX waives all
rights to exercise any piggyback registration rights (including as may arise
under Section 2 of the Registration Rights Agreement) in connection with the IPO
(including any exercise of the underwriters' over-allotment option in connection
therewith). Each of FPH and OMX agree that, on or prior to the IPO Date, it
shall execute and deliver to the managing underwriters for the IPO a Lock-Up
Agreement with the managing underwriters for the IPO in substantially the form
of Exhibit C attached hereto. Furthermore, each of FPH and OMX agree that, from
and after the IPO Date, the definition of "Common Stock" in the Registration
Rights Agreement shall be amended and restated as follows: "'Common Stock' means
the Class A Common Stock of the Company, par value $0.01 per share."
Furthermore, OMX acknowledges that, after the IPO Date, BCH may, in order to
comply with securities laws, elect to file a registration statement for the
distribution of securities of BCH held by FPH and hereby agrees to waive any
rights under the Registration Rights Agreement or otherwise, including piggyback
registration rights, to include securities owned by OMX in such registration;
PROVIDED that as a condition to such distribution, FPH shall assign all of its
rights and obligations under the Registration Rights Agreement, the Stockholders
Agreement (as hereinafter defined) and the Securityholders Agreement to Madison
Dearborn Capital Partners IV, L.P. ("MDCP IV") (it being acknowledged and agreed
that MDCP IV is an Affiliate (as such term is defined in each such respective
agreement) of FPH). When used herein, "Registration Rights Agreement" means that
certain Registration Rights Agreement, dated as of October 29, 2004, by and
among BCH, OMX and FPH.
2C. STOCKHOLDERS AGREEMENT. When used herein, "Stockholders
Agreement" means that certain Stockholders Agreement, dated as of October 29,
2004, by and among BLTH, Kooskia and FPH. Each of BLTH, FPH and Kooskia hereby
agree that, in light of the sale of substantially all of the assets of BLTH,
from and after the IPO Date and the repayment of the Note Repayment Amount to
BLTH, the Stockholders Agreement is hereby amended to revise Articles 3 and
Article 4, effective as of the repayment of the Note Amount as set forth below.
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(i) The following changes shall be made to Article 3;
(a) Section 3.3 is revised to read as follows:
3.3 The Board shall consist of one individual designated in
writing by FPH.
(b) Section 3.9 is deleted.
(ii) The following changes shall be made to Article 4:
(a) Delete Section 4.3 [Requirement for annual independent
audit by a big four auditor];
(b) Revise Section 4.4 by deleting the requirement in clause
(a) of the second sentence thereof that the annual financial statements required
by such clause be audited and certified by an independent auditing firm; and
(c) Delete Section 4.6 [requirement for consent by auditors
for filing of statements with a stockholders filings with the SEC]
2D. CONSENT TO ASSIGNMENT OF OBLIGATIONS UNDER APA. OMX agrees
that, on or after the IPO Date, FPH may assign to BC (i) its obligations under
that certain Asset Purchase Agreement, dated as of July 26, 2004, by and among
OMX (formerly Boise Cascade Corporation), Minidoka Paper Company, OfficeMax
Southern Company (formerly Boise Southern Company), BLT and FPH and (ii) its
rights and obligations under that certain Mutual Administrative Services
Agreement, dated as of October 29, 2004, by and between OMX and FPH.
2E. NEW BCH CERTIFICATE OF INCORPORATION. OMX and FPH agree to
execute any written consent in favor of, or to vote in favor of, any amendment
and restatement of the BCH Certificate in substantially the form of Exhibit D
attached hereto requested by BCH that would be filed with the Secretary of State
for the State of Delaware as of any time after consummation of the transactions
contemplated by Section 1B and Section 1C hereof.
Section 3. REPRESENTATIONS AND WARRANTIES OF FPH, KOOSKIA AND
OMX. As a material inducement to BCH and BLTH to enter into this Agreement,
each of FPH, Kooskia and OMX represents and warrants for itself (severally and
not jointly) that this Agreement and the documents requiring execution by such
Party in connection with this Agreement, and such Party's performance
hereunder and thereunder, has been duly authorized, executed and delivered by
such Party and this Agreement constitutes the legal, valid and binding
obligations of such Purchaser, enforceable in accordance with their terms,
except as enforceability may be limited by bankruptcy, insolvency,
reorganization, moratorium or other laws affecting creditors' rights generally
and limitations on the availability of equitable remedies. Furthermore, in
accordance with the Stockholders Agreement and the Securityholders Agreement,
as of the date of this Agreement and the date that the purchase and sale of
Preferred Stock, Series A Common Units and Series B Common Units is
consummated, each of Kooskia and OMX hereby (a) represent and warrant to BCH
and BLTH that (i) each of OMX and Kooskia, and each Affiliate of OMX and
Kooskia (collectively, the "OMX Parties") is in good standing under each
Relevant Agreement (as defined in the Securityholders Agreement), and (ii) no
OMX Party has in any material respect defaulted under or
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breached, or is in any material respect in default under or in breach of, any
Relevant Agreement, and (b) reaffirm the OMX Parties' ongoing obligations
under each of the Relevant Agreements.
Section 4. REPRESENTATIONS AND WARRANTIES OF BCH AND BLTH. As a
material inducement to FPH, OMX and Kooskia to enter into this Agreement and
to perform its obligations hereunder, each of FPH, BCH, and BLTH represents
and warrants for itself (severally and not jointly) that:
4A. ORGANIZATION; POWER AND LICENSES. BCH is a limited liability
company duly organized, validly existing and in good standing under the laws of
Delaware and is qualified to do business in every jurisdiction in which its
ownership of property or conduct of business requires it to qualify. BLTH 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 its
ownership of property or conduct of business is requires it to qualify. Each of
BCH and BLTH possesses all requisite power and authority and, all material
licenses, permits and authorizations necessary to own and operate its
properties, to carry on its businesses as presently proposed to be conducted and
to carry out the transactions contemplated by this Agreement.
4B. AUTHORIZATION; ENFORCEABILITY. The execution, delivery and
performance of this Agreement have been duly authorized by each of BCH and BLTH
and this Agreement has been duly executed and delivered by each of BCH and BLTH.
This Agreement constitutes a valid and binding obligation of each of BCH and
BLTH, enforceable in accordance with its terms.
4C. RELEVANT AGREEMENTS. As of the date of this Agreement and the
date that the purchase and sale of Preferred Stock, Series A Common Units and
Series B Common Units is consummated, FPH, and each Affiliate of FPH
(collectively, the "FPH" Parties") is in good standing under each Relevant
Agreement (as defined in the Securityholders Agreement), and (ii) no FPH Party
has in any material respect defaulted under or breached, or is in any material
respect in default under or in breach of, any Relevant Agreement. In addition
FPH, BCH, and BLTH hereby reaffirm the FPH Parties' ongoing obligations under
each of the Relevant Agreements.
Section 5. MISCELLANEOUS.
5A. REMEDIES. Each party shall have all rights and remedies set
forth in this Agreement, the Securityholders Agreement and all rights and
remedies which such holders have been granted at any time under any other
agreement or contract and all of the rights which such holders have under any
law. Any Person having any rights under any provision of this Agreement shall 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. Without limiting the
generality of the foregoing, if BCH and BLTH make available, at the time and
place and in the amount and form provided in this Agreement, the consideration
for the Preferred Stock, the BLTH Series A Common and the BLTH Series B Common
to be purchased in accordance with the provisions of this Agreement, then from
and after such time the holder from whom such security is to be purchased shall
cease to have any rights as a holder of such security (other than the right to
receive payment of such consideration upon satisfaction of the requirements set
forth herein), and such security shall be deemed purchased in accordance with
the applicable provisions hereof and BCH and BLTH, as applicable, shall be
deemed the owner and holder of such security, whether or not the certificate
therefor has been delivered as required by this Agreement.
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5B. CONSENT TO AMENDMENTS. Except as otherwise expressly provided
herein, no amendment, modification or waiver of any of the provisions of this
Agreement shall be effective against any party hereto unless such party has
consented to such amendment, modification or waiver in writing. No course of
dealing between any parties or any delay in exercising any rights shall operate
as a waiver of any rights.
5C. 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.
5D. FURTHER ASSURANCES. Each of FPH, Kooskia and OMX shall take all
actions and execute all other documents consistent with its obligations
hereunder or under the Stockholders Agreement or the Securityholders Agreement
in connection with the transactions contemplated hereby or otherwise reasonably
requested by BCH and/or BLTH in order to consummate the transactions
contemplated hereby. Furthermore, if and when requested by BCH or BLTH in
connection with the transfer, sale or disposition of equity securities after the
date hereof, each of FPH, Kooskia and OMX shall make customary representations
and warranties regarding the transfer of the equity securities of BCH and BLTH
held by OMX, Kooskia and/or FPH (including representations and warranties
regarding good title to such shares free and clear of any liens, encumbrances
and/or other restrictions) and other representations, warranties and
certifications that may be provided for in connection with a transfer of equity
securities by such holder under the Securityholders Agreement and/or the
Stockholders Agreement (as hereinafter defined).
5E. 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 permitted assigns of the parties hereto, whether so
expressed or not, unless the assignor and assignee have otherwise agreed;
PROVIDED that neither this Agreement nor any of the rights, interests or
obligations hereunder may be assigned by any Person without the prior written
consent of the other parties affected thereby.
5F. 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.
5G. COUNTERPARTS. This Agreement may be executed simultaneously in
two or more counterparts, anyone 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.
5H. DESCRIPTIVE HEADINGS; INTERPRETATION; NO STRICT CONSTRUCTION.
The descriptive headings of this Agreement are inserted for convenience only and
do not constitute a substantive part of this Agreement. Whenever required by the
context, any pronoun used in this Agreement shall include the corresponding
masculine, feminine or neuter forms, and the singular forms of nouns, pronouns,
and verbs shall include the plural and vice versa. Reference to any agreement,
document, or instrument means such agreement, document, or instrument as amended
or otherwise modified from time to time in accordance with the terms thereof,
and if applicable hereof. The use of the words "include" or "including" in this
Agreement shall be by way of example rather than by limitation. The use of the
words "or," "either" or "any" shall not be exclusive. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto, and no
presumption or burden of proof shall
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arise favoring or disfavoring any party by virtue of the authorship of any of
the provisions of this Agreement.
5I. GOVERNING LAW. ALL ISSUES AND QUESTIONS CONCERNING THE
CONSTRUCTION, VALIDITY, ENFORCEMENT AND INTERPRETATION OF THIS AGREEMENT AND THE
EXHIBITS AND SCHEDULES HERETO SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF DELAWARE, 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.
5J. NOTICES. All notices, demands or other communications to be
given or delivered under or by reason of the provisions of this Agreement shall
be made as set forth in the Operating Agreement (with any notice to Kooskia
being effective if delivered to OMX in accordance with this Agreement).
5K. DELIVERY BY FACSIMILE AND OTHER ELECTRONIC MEANS. This
Agreement, the agreements referred to herein, and each other agreement or
instrument entered into in connection herewith or therewith or contemplated
hereby or thereby, and any amendments hereto or thereto, to the extent signed
and delivered by means of a facsimile machine or other electronic transmission,
shall be treated in all manner and respects as an original agreement or
instrument and shall be considered to have the same binding legal effect as if
it were the original signed version thereof delivered in person. At the request
of any party hereto or to any such agreement or instrument, each other party
hereto or thereto shall re-execute original forms thereof and deliver them to
all other parties. No party hereto or to any such agreement or instrument shall
raise the use of a facsimile machine or other electronic means to deliver a
signature or the fact that any signature or agreement or instrument was
transmitted or communicated through the use of a facsimile machine or other
electronic means as a defense to the formation or enforceability of a contract
and each such party forever waives any such defense.
* * * * *
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EXHIBIT A
IN WITNESS WHEREOF, the parties hereto have executed this Going Public
Agreement the day and year first above written.
BOISE CASCADE HOLDINGS, L.L.C.
By:
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BOISE LAND & TIMBER HOLDINGS CORP.
By:
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FOREST PRODUCTS HOLDINGS, L.L.C.
By:
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OFFICEMAX INCORPORATED
By:
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KOOSKIA INVESTMENT CORPORATION
By:
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