Exhibit 10.1


 


AMENDMENT NO. 1 TO DIRECTOR
EQUITY AGREEMENT


 


THIS AMENDMENT NO. 1 TO DIRECTOR EQUITY AGREEMENT (this “Agreement”)
is made and entered into as of February 20, 2009 and effective as of May 23,
2008, by and among Forest Products Holdings, L.L.C., a Delaware limited
liability company (the “Company”) and each of the persons listed on the
signature pages hereto as “Director Investors” (each, a “Director
Investor” and collectively, the “Director Investors”).


 


Pursuant to that certain Director Equity Agreement, dated as of April 3,
2006, by and among the Company, the Director Investors and the Investor (for
each such Director Investor, such Director Investor’s “Original Director
Equity Agreement” and, as amended, modified, supplemented or waived from time
to time (including by this Agreement), the “Director Equity Agreement”),
each Director Investor received the number of Series C Common Units of the
Company set forth under such Director Investor’s name on the signature pages attached
hereto “Original Series C Common Units Received”.  Capitalized terms used, but not otherwise
defined, herein shall have the meanings given to such terms in such Director
Investor’s Original Director Equity Agreement.


 


The Company, the Director Investors and the Investor are executing and
delivering this Agreement in order to provide for certain amendments,
modifications, supplements and waivers to such Director Investors’ Original
Director Equity Agreement, as set forth in further detail herein.


 


NOW, THEREFORE. the parties hereto, in consideration of their mutual
covenants and agreements hereinafter set forth and intending to be legally
bound hereby, covenant and agree as follows:


 


1.                                       Certain
Amendments.  By its execution and
delivery hereof, each of the Company, the Investor and each Director Investor
acknowledges and agrees that Section 2(d)(iii) of such Director
Investor’s Original Director Equity Agreement is hereby amended by replacing
the word “quarterly” in the second sentence thereof with “annually”.


 


2.                                       Certain
Provisions Relating to Director Investors That Were Not At Least 62 Years Old
as of December 31, 2004 and, in the case of Section 2(d), All
Director Investors.


 


(a)                                  Each
of the Company and each Director Investor that was not at least 62 years old as
of December 31, 2004 (each, a “CYD”) acknowledges and agrees that,
as of February 22, 2008, (x) a number of such CYD’s Original Series C
Common Units Received equal to (i) 0.3145 multiplied  by (ii) such
CYD’s Original Series C Common Units Received (such product, for each such
CYD, such CYD’s “2/22/08 Vested Series C Common Units”) were vested
and are “Vested Series C Common Units” and “Vested Units” for all purposes
of such CYD’s Director Equity Agreement, (y) a number of such CYD’s
Original Series C Common Units Received equal to (i) 0.6855 multiplied
by (ii) such CYD’s Original Series C Common Units Received
(such product, for 


 

















 


each such CYD,
such CYD’s “2/22/08 Unvested Series C Common Units”) were not
vested and are “Unvested Series C Common Units” and “Unvested Units” for
all purposes of such CYD’s Director Equity Agreement, and (z) the number
of 2/22/08 Vested Series C Common Units and 2/22/08 Unvested Series C
Common Units for each such CYD is set forth underneath such CYD’s name on the
signature page hereto.  Each of the
Company and each CYD agree that, notwithstanding anything to the contrary in Section 2(c)(i),
Section 2(c)(ii) and Section 2(d) of such CYD’s
Director Equity Agreement for such CYD, but without otherwise limiting the
provisions of Section 2(c)(iii), Section 2(c)(iv) and
Section 2(c)(v) of such CYD’s Director Equity Agreement with
respect to such Remaining Time Vesting Series C Common Units (as
hereinafter defined) and without otherwise limiting the provisions of Section 2(d) of
such CYD’s Director Equity Agreement with respect to the Remaining Performance
Vesting Series C Common Units, a number of 2/22/08 Unvested Series C
Common Units determined by multiplying (A) 0.7294 by (B) the 2/22/08
Unvested Series C Common Units (such product, the “Remaining Time
Vesting Series C Common Units” (being 50% of such CYD’s Original Series C
Common Units Received)) shall be “Time Vesting Class C Units” and shall
vest ratably on a daily basis during the period from February 22, 2008
through and including December 31, 2010; provided that, without
limiting the provisions of Section 2(c)(iv) of such CYD’s
Director Equity Agreement, if such CYD ceases to serve as a director of the
Company or any of its Subsidiaries prior to December 31, 2010, the total
number of Remaining Time Vesting Series C Common Units that shall have
vested in accordance with this sentence shall be determined as the total number
of Remaining Time Vesting Series C Common Units multiplied  by
a fraction, the numerator of which is the number of days from February 22,
2008 through and including the date of termination and the denominator of which
is the total number of days from February 22, 2008 through and including December 31,
2010.  Each CYD’s Remaining Time Vesting Series C
Common Units are set forth underneath such CYD’s name on the signature page hereto.


 


(b)                                 Each
of the Company and each CYD acknowledges and agrees that, as of February 22,
2008, a number of 2/22/08 Unvested Series C Common Units determined as the
excess of (i) the 2/22/08 Unvested Series C Common Units minus
(ii) the Remaining Time Vesting Series C Common Units (such excess,
the “Remaining Performance Vesting Series C Common Units” (being
18.55% of such CYD’s Original Series C Common Units  Received)) shall be “Performance Vesting Series C
Common Units” for all purposes of such CYD’s Director Equity Agreement and
shall vest, if at all, in accordance with Section 2(d) of such CYD’s
Director Equity Agreement.  Each CYD’s
Remaining Performance Vesting Series C Common Units are set forth
underneath such CYD’s name on the signature page hereto.


 


(c)                                  Each
of the Company and each CYD acknowledges and agrees that, as of February 22,
2008, that clause (b) of Section 2(d)(i) of such CYD’s
Original Director Equity Agreement is, with respect to such CYD, amended by
deleting “December 31, 2009” and replacing the same with “December 31,
2010”.


 


(d)                                 Each
of the Company and each Director Investor acknowledges and agrees that Section 2(d)(iv) and
Section 2(d)(v) of such Director Investor’s Original Director Equity
Agreement are, with respect to such Director Investor, amended and restated as
follows:


 


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“(iv)                        The
Board shall provide to any Director Investor, within 30 days of such Director
Investor’s written request, a reasonably detailed description of the
calculations and values employed in determining the IRR Fair Value, IRR, Cash
Inflows, Cash Outflows and Indebtedness, in each case to the extent relevant to
the calculation of IRR Fair Value and IRR for such Director Investor.  The Board shall also provide to such Director
Investor copies of or access to all related underlying financial statements,
third-party valuation reports and accounting and business records subject to
such Director Investor agreeing to appropriate confidentiality restrictions.


 


(v)                               If
the Series B Common Units are publicly traded, the “IRR Fair Value”
will be equal to the Fair Market Value of the Series B Common Units.  If the Series B Common Units are not
publicly traded but the Company’s sole asset is an interest in a publicly
traded security (or an indirect interest in such a security through the
ownership of other equity securities), then the “IRR Fair Value” will be equal
to the aggregate Fair Market Value of such publicly traded security to the
holders of Series B Common Units, divided by the number of Series B
Common Units.  If the Series B
Common Units are not publicly traded and the Company has assets other than a
direct or indirect interest in a publicly traded security, then the IRR Fair
Value of the Series B Common Units will be determined as follows: (1) first,
the enterprise value of Boise Holdings will be determined utilizing the most
recent (relative to the Determination Date) third-party valuation for Boise Holdings
received by the Company or Boise Holdings and shall be determined without
regard to any valuation of the debt or equity securities of Boise Inc. then
owned or held by Boise Holdings or any of its Subsidiaries; (2) second,
the equity value of Boise Holdings will be determined by (x) without any
duplication to any amount used in computing enterprise value, increasing such
enterprise value by (a) the Fair Market Value of the Boise Inc. common
stock owned or held by Boise Holdings or any of its Subsidiaries, (b) the
aggregate principal amount plus accrued and unpaid interest of any promissory
note of Boise Inc. owned or held by Boise Holdings (provided that if any
portion of such promissory note has been sold or transferred to a third party,
ascribing the value to the remainder of such promissory note implied by such
sale or transfer), and (c) the aggregate cash of Boise Holdings and its
Subsidiaries and (y) without any duplication to any amount used in
computing enterprise value, reducing such enterprise value by (a) the
total amount of Indebtedness of Boise Holdings and its Subsidiaries and (b) any
equity securities of any Subsidiaries of Boise Holdings as of the Determination
Date owned by any Person other than Boise Holdings or any of its wholly-owned
Subsidiaries; (3) third, by assuming the equity value of Boise Holdings is
distributed in accordance with the distribution provisions of the Boise
Holdings Operating Agreement, and (4) the value of a Series B Common
Unit will be determined by assuming an amount (the “Company Equity Value
Amount”) equal to (I) the distributions to the Company from Boise
Holdings as determined in accordance with clause (3) foregoing, plus (II) the
fair market value of any assets of the Company (as determined by the Board), other
than the equity securities of Boise Holdings, and minus (III) any
Indebtedness and other liabilities of the Company (as determined by the Board)
and assuming the Company Equity Value 


 


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Amount was distributed to
the holders of Units in accordance with the LLC Agreement and determining the
amount distributed to each Series B Common Unit as a result of such
distribution (which will be determined on a fully diluted basis, assuming full
vesting of all of all Units that are or would become vested at the time of such
IRR calculation).”


 


3.                                       Certain
Provisions Relating to Director Investors That Were At Least 62 Years Old as of
December 31, 2004.  Each of the
Company and each Director Investor that was at least 62 years old as of December 31,
2004 acknowledges and agrees that, as of February 22, 2008, 100% of such
Director Investor’s Original Series C Common Units Received have vested
and are “Vested Series C Common Units” and “Vested Units” for all purposes
of the Director Equity Agreement for each such Director Investor.


 


4.                                       No
Transfer or Assignment.  No interest
or right any Director Investor or any of its beneficiaries has to receive
payment under this Agreement shall be subject in any manner to sale, transfer,
assignment, pledge, attachment, garnishment, or other alienation or encumbrance
of any kind, except as required by law; nor may such interest or right to
receive payment be taken, voluntarily or involuntarily, for the satisfaction of
the obligations or debts of, or other claims against such Director Investor or
any of its beneficiaries, except to the extent required by law.


 


5.                                       Survival
of Representations and Warranties. 
All representations and warranties contained herein or made by any
Director Investor in connection herewith shall survive the execution and
delivery of this Agreement and the Closing hereunder.


 


6.                                       Continued
Existence of Operating Agreement and Director Equity Agreement.  Each of the Company and each Director
Investor acknowledges and agrees that the Operating Agreement and the Director
Equity Agreement remains in full force and effect and that such Director
Investor remains bound by the Operating Agreement and the Director Equity
Agreement with respect to all units of the Company, other than the Repurchased
Units.


 


7.                                       Complete
Agreement.  This Agreement, together
with the Director Equity Agreement and the Operating Agreement, constitute the
entire agreement between the parties hereto regarding the subject matter of
this Agreement and supersede and preempt any prior understandings, agreements
or representations, written or oral, which may have related to the subject
matter hereof.  When used herein, “including”
means “including, without limitation” regardless of whether such or similar
terminology is actually used.


 


8.                                       Counterparts.  This Agreement may be executed in separate
counterparts (including by means of facsimile transmission or other electronic
transmission), each of which shall be deemed to be an original and all of which
taken together shall constitute one and the same agreement.


 


9.                                       Further
Assurances.  After the Closing, as
and when requested by the Company and each Director Investor shall, without
further consideration, execute and deliver all 


 


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such instruments
of purchase, conveyance and transfer and shall take such further actions as the
Company may reasonably deem necessary or desirable in order to sell, transfer
and assign the Repurchased Units as contemplated hereby and to otherwise carry
out fully the provisions and purposes of this Agreement.


 


10.                                 Successors
and Assigns.  This Agreement is
intended to bind, inure to the benefit of and be enforceable by the Company and
each Director Investor and their respective successors and permitted assigns; provided,
however, that no Director Investor may 
assign this Agreement or any rights or obligations hereunder without the
Company’s prior written consent.


 


11.                                 Governing
Law.  All issues and questions
concerning the construction, validity, enforcement and interpretation of this
Agreement shall be governed by, and construed in accordance with the law of the
State of Idaho, without giving effect to any choice of law or conflict of law rules or
provisions (whether of the State of Idaho or any other jurisdiction) that would
cause the applications of the law of any jurisdiction other than the State of
Idaho.


 


12.                                 Severability.  Whenever possible, each provision of this
Agreement shall be interpreted in a manner to be effective and valid under
applicable law, but if any provision shall be held to be prohibited or invalid
under applicable law, such provision shall be ineffective only to the extent of
such prohibition or invalidity, without invalidating or affecting the remainder
of such provision or any of the remaining provisions of this Agreement.


 


13.                                 Notices.  Any notice provided for in this Agreement
must be in writing and must be either personally delivered, mailed by first
class mail (postage prepaid and return receipt requested), telecopied or sent
by reputable overnight courier service (charges prepaid) to an Director
Investor at the address set forth under such Director Investor’s name on the
signature page attached hereto and to any other recipient at the address
or telecopy number below indicated:


 


If to the Company:


 


Forest Products Holdings,
L.L.C.


c/o Boise Cascade, L.L.C.


1111 W. Jefferson St.,
Boise, ID  83702-5389


Attention:  General Counsel


Telecopy:  (208) 384-6566


 


with a copy to:


 


Kirkland & Ellis LLP


200 East Randolph Drive


Chicago, IL 60601


Attention: Richard J. Campbell P.C.


Telecopy:  (312) 861-2200


 


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If to the Investor:


 


Madison Dearborn Capital Partners IV, L.P.


Three First National Plaza, 38th Floor


70 W. Madison Street


Chicago, IL 60602


Telecopy:  (312) 895-1001


 


or to such other
address or to the attention of such other person as the recipient party shall
have specified by prior written notice to the sending party.  Any notice under this Agreement will be
deemed to have been given, if personally delivered, when so delivered, if
mailed by first class mail as provided above, five days after deposit in the
U.S. mail, if telecopied, upon confirmation of successful transmission, on the
date of transmission if such transmission is completed at or prior to 5:00 p.m.
local time of the recipient party on a business day (or otherwise on the next
business day), or if sent by reputable overnight courier service as provided
above, one business day after delivery to such courier service.


 


*     *     *    
*     *


 


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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first above written.


 


 


COMPANY


 


FOREST
PRODUCTS HOLDINGS, L.L.C.


 


 


	
  By:

  	
     /s/ Tom Carlile

  	
   

  
	
   

  	
   

  	
   

  
	
  Its:

  	
     Executive Vice
  President & Chief Financial Officer

  	
   

  



 


 


DIRECTOR
INVESTOR:


 


 


	
   

  	
     /s/ Duane McDougall

  	
   

  
	
   

  	
   

  	
   

  
	
  Name: Duane C. McDougall

  	
   

  



 


[Address]


 


 


Original
Series C Common Units Received: 


 


2/22/08
Vested Series C Common Units: 


 


2/22/08
Unvested Series C Common Units: 


 


Remaining
Time Vesting Series C Common Units: 


 


Remaining
Performance Vesting Series C Common Units: 


 


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