Exhibit 10.2

 

STOCK REPURCHASE AGREEMENT

 

THIS STOCK REPURCHASE AGREEMENT (this “Agreement”) is entered into as of July 22, 2013 by and between Boise Cascade Company, a Delaware corporation (the “Company”), and Boise Cascade Holdings, L.L.C., a Delaware limited liability company (the “Seller”).

 

Background

 

A.            The Seller owns in aggregate 29,700,000 shares of the Company’s common stock, $0.01 par value per share (the “Common Stock”), and has agreed to transfer a portion of those shares to the Company on the terms and conditions set forth in this Agreement.

 

B.            The Company has agreed to repurchase a portion of the shares of Common Stock held by the Seller at the price and upon the terms and conditions provided in this Agreement (the “Repurchase”).

 

C.            The Seller and the Company have commenced an underwritten public offering (the “Public Offering”) of up to 11,500,000 shares of Common Stock held by the Seller (the “Underwritten Shares”).

 

D.            The Company has sought and received from the necessary counterparties thereto a consent to amendment to that certain Credit Agreement dated as of July 13, 2011 (as amended, restated, supplemented, or otherwise modified before the date of this Agreement, including, without limitation, by that certain First Amendment to Credit Agreement dated as of September 7, 2012, that certain Limited Consent and Amendment to Loan Documents dated as of December 20, 2012, and that certain Third Amendment to Credit Agreement dated as of May 15, 2013, the “Credit Agreement”) to permit the Repurchase. The Company intends to use cash on its balance sheet together with available borrowings under the Credit Agreement to complete the Repurchase.

 

E.            The board of directors of the Company (the “Board”) has approved the Repurchase and related transactions that may be required in connection with the Repurchase.

 

F.             The Repurchase and the related transactions that may be required in connection with the Repurchase have also been approved by the sole disinterested member of the Board.

 

THEREFORE, in consideration of the mutual covenants herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the undersigned hereby agree as follows:

 

Agreement

 

1.             Repurchase.

 

(a)           Subject to the satisfaction of the conditions and to the terms set forth in paragraph 1(b) below, the Seller hereby agrees to transfer, assign, sell, convey and deliver to the Company 100% of its right, title, and interest in and to the number of whole shares (the “Repurchase Shares”) equal to $100,000,000 divided by the Per Share Purchase Price for

 











 

consideration equal to the number of Repurchase Shares multiplied by the Per Share Purchase Price (the “Aggregate Purchase Price”). The per share purchase price for each Repurchase Share shall be equal to the per share price at which the Seller sells the Underwritten Shares to the underwriters in the Public Offering (the “Per Share Purchase Price”).

 

(b)           The obligations of the Company to purchase and the Seller to sell the Repurchase Shares shall be subject to the closing of the Public Offering pursuant to an underwriting agreement by and among the Company, the Seller and the underwriters named therein (the “Underwriting Agreement”) no later than 15 business days from the date hereof.

 

(d)           The closing of the sale of the Repurchase Shares (the “Closing”) shall take place upon the same day as the closing of the Public Offering at the offices of the Company in Boise, Idaho, or at such other time and place as may be agreed upon by the Company and the Seller. At the Closing, the Seller shall deliver to the Company or such person as instructed by the Company a duly executed stock power relating to the Repurchase Shares, as applicable, and the Company agrees to deliver to the Seller the Aggregate Purchase Price by wire transfer of immediately available funds.

 

2.             Company Representations. In connection with the transactions contemplated hereby, the Company represents and warrants to the Seller that:

 

(a)           The Company is a corporation duly organized and existing under the laws of the State of Delaware. The Company has the requisite corporate power and authority to execute, deliver and perform its obligations under this Agreement and to consummate the transactions contemplated hereby.

 

(b)           This Agreement has been duly authorized, executed and delivered by the Company and constitutes a valid and binding agreement of the Company enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.

 

(c)           The compliance by the Company with this Agreement and the consummation of the transactions herein contemplated will not (i) conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under any indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Company or any of its subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any of the property or assets of the Company or any of its subsidiaries is subject, (ii) violate any provision of the certificate of incorporation or by-laws, or other organizational documents, as applicable, of the Company or its subsidiaries or (iii) violate any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Company or any of its Subsidiaries or any of their properties; and no consent, approval, authorization, order, registration or qualification of or with any such court or governmental agency or body is required for the execution, delivery and performance by the Company of its obligations under this Agreement, including the consummation by the Company of the transactions contemplated by this Agreement.

 

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3.             Representations of the Seller. In connection with the transactions contemplated hereby, the Seller represents and warrants to the Company that:

 

(a)           The Seller is a limited liability company duly organized and existing under the laws of the State of Delaware.

 

(b)           All consents, approvals, authorizations and orders necessary for the execution and delivery by the Seller of this Agreement and for the sale and delivery of the Repurchase Shares to be sold by the Seller hereunder, have been obtained; and the Seller has full right, power and authority to enter into this Agreement and to sell, assign, transfer and deliver the Repurchase Shares to be sold by the Seller hereunder, except for such consents, approvals, authorizations and orders as would not impair in any material respect the consummation of the Seller’s obligations hereunder.

 

(c)           This Agreement has been duly authorized, executed and delivered by the Seller and constitutes a valid and binding agreement of the Seller, enforceable in accordance with its terms, except to the extent that enforcement thereof may be limited by bankruptcy, insolvency, reorganization or other laws affecting enforcement of creditors’ rights or by general equitable principles.

 

(d)           The sale of the Repurchase Shares to be sold by the Seller hereunder and the compliance by the Seller with all of the provisions of this Agreement and the consummation of the transactions contemplated herein (i) will not conflict with or result in a breach or violation of any of the terms or provisions of, or constitute a default under, any statute, indenture, mortgage, deed of trust, loan agreement or other agreement or instrument to which the Seller is a party or by which the Seller is bound or to which any of the property or assets of the Seller is subject, (ii) nor will such action result in any violation of the provisions of (x) any organizational or similar documents pursuant to which the Seller was formed or (y) any statute or any order, rule or regulation of any court or governmental agency or body having jurisdiction over the Seller or the property of the Seller.

 

(e)           As of the date hereof and immediately prior to the delivery of the Repurchase Shares to the Company at the Closing, the Seller holds good and valid title to the Repurchase Shares or a securities entitlement in respect thereof, and holds, and will hold, such Repurchase Shares free and clear of all liens, encumbrances, equities or claims; and, upon delivery of such Repurchase Shares (including by crediting to a securities account of the Company) and payment therefor pursuant hereto, the Company will acquire good and valid title to the Repurchase Shares, free and clear of all liens, encumbrances, equities or claims.

 

(f)            The Seller (either alone or together with its advisors) has such knowledge and experience in financial or business matters that it is capable of evaluating the merits and risks of the Repurchase. The Seller has had the opportunity to ask questions and receive answers concerning the terms and conditions of the Repurchase and the Repurchase Shares and has had full access to such other information concerning the Shares and the Company as it has requested. The Seller has received all information that it believes is necessary or appropriate in connection

 

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with the Repurchase. The Seller is an informed and sophisticated party and has engaged, to the extent the Seller deems appropriate, expert advisors experienced in the evaluation of transactions of the type contemplated hereby. The Seller acknowledges that the Seller has not relied upon any express or implied representations or warranties of any nature made by or on behalf of the Company, whether or not any such representations, warranties or statements were made in writing or orally, except as expressly set forth for the benefit of the Seller in this Agreement.

 

4.             Termination. This Agreement may be terminated at any time by the mutual written consent of the Company and the Seller. Furthermore, this Agreement shall automatically terminate and be of no further force and effect, in the event that the conditions in paragraph 1(b) of this Agreement have not been satisfied within 15 business days after the date hereof.

 

5.             Notices. All notices, demands or other communications to be given or delivered under or by reason of the provisions of this Agreement will be in writing and will be deemed to have been given when delivered personally, mailed by certified or registered mail, return receipt requested and postage prepaid, or sent via a nationally recognized overnight courier, or sent via facsimile to the recipient. Such notices, demands and other communications will be sent to the address indicated below:

 

To the Seller:

 

Boise Cascade Holdings, L.L.C.

c/o Madison Dearborn Partners, LLC

Three First National Plaza

70 W. Madison

Chicago, IL 60602

Attention:  Matt Norton

Email Address: mnorton@mdcp.com

 

To the Company:

 

Boise Cascade Company

1111 W. Jefferson

Boise, ID 83728

Attention: John Sahlberg

Email Address: JohnSahlberg@bc.com

 

or 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.

 

6.             Miscellaneous.

 

(a)           Survival of Representations and Warranties. All representations and warranties contained herein or made in writing by any party in connection herewith shall survive the

 

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execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.

 

(b)           Severability. Whenever possible, each provision of this Agreement will 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 invalid, illegal, or unenforceable in any respect under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other provision or any other jurisdiction, but this Agreement will be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provision had never been contained herein.

 

(c)           Complete Agreement. This Agreement and any other agreements ancillary thereto and executed and delivered on the date hereof embody the complete agreement and understanding between the parties and supersede and preempt any prior understandings, agreements, or representations by or among the parties, written or oral, which may have related to the subject matter hereof in any way.

 

(d)           Counterparts. This Agreement may be executed in separate counterparts, each of which is deemed to be an original and all of which taken together constitute one and the same agreement.

 

(e)           Assignment; Successors and Assigns. Neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned, in whole or in part, by any of the parties without the prior written consent of the other parties. Subject to the preceding sentence, this Agreement shall bind and inure to the benefit of and be enforceable by the Seller and the Company and their respective successors and permitted assigns. Any purported assignment not permitted under this paragraph shall be null and void.

 

(f)            No Third Party Beneficiaries or Other Rights. This Agreement is for the sole benefit of the parties and their successors and permitted assigns and nothing herein express or implied shall give or shall be construed to confer any legal or equitable rights or remedies to any person other than the parties to this Agreement and such successors and permitted assigns.

 

(g)           Governing Law; Jurisdiction. The Agreement and all disputes arising out of or related to this Agreement (whether in contract, tort or otherwise) will be governed by and construed in accordance with the laws of the State of Delaware. EACH OF THE PARTIES TO THIS AGREEMENT IRREVOCABLY WAIVES ANY AND ALL RIGHTS TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT. Each of the parties (i) irrevocably submits to the personal jurisdiction of any state or federal court sitting in Wilmington, Delaware, as well as to the jurisdiction of all courts to which an appeal may be taken from such courts, in any suit, action or proceeding relating to or arising out of, under or in connection with this Agreement, (ii) agrees that all claims in respect of such suit, action or proceeding, whether arising under contract, tort or otherwise, shall be brought, heard and determined exclusively in the Delaware Court of Chancery (provided that, in the event that subject matter jurisdiction is unavailable in that court, then all such claims shall be brought, heard and determined exclusively in any other state or federal court sitting in

 

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Wilmington, Delaware), (iii) agrees that it shall not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from such court, and (iv) agrees not to bring any action or proceeding relating to or arising out of, under or in connection with this Agreement or the Company’s business or affairs in any other court, tribunal, forum or proceeding. Each of the parties waives any defense of inconvenient forum to the maintenance of any action or proceeding brought in accordance with this paragraph. Each of the parties agrees that service of any process, summons, notice or document by U.S. registered mail to its address set forth herein shall be effective service of process for any action, suit or proceeding brought against it in accordance with this paragraph, provided that nothing in the foregoing sentence shall affect the right of any party to serve legal process in any other manner permitted by law.

 

(h)           Mutuality of Drafting. The parties 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 jointly drafted by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of the Agreement.

 

(i)            Remedies. The parties hereto agree and acknowledge that money damages will not be an adequate remedy for any breach of the provisions of this Agreement, that any breach of the provisions of this Agreement shall cause the other parties irreparable harm, and that any party may in its sole discretion apply to any court of law or equity of competent jurisdiction (without posting any bond or deposit) for specific performance or other injunctive relief in order to enforce, or prevent any violations of, the provisions of this Agreement.

 

(j)            Amendment and Waiver. The provisions of this Agreement may be amended, modified or waived only with the prior written consent of the Seller and the Company. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions of this Agreement, nor shall any waiver constitute a continuing waiver. Moreover, no failure by any party to insist upon strict performance of any of the provisions of this Agreement or to exercise any right or remedy arising out of a breach thereof shall constitute a waiver of any other provisions or any other breaches of this Agreement.

 

(k)           Further Assurances. Each of the Company and the Seller shall execute and deliver such additional documents and instruments and shall take such further action as may be necessary or appropriate to effectuate fully the provisions of this Agreement.

 

(l)            Expenses. Each of the Company and the Seller shall bear their own expenses in connection with the drafting, negotiation, execution and delivery of this Agreement and the consummation of the transactions contemplated hereby.

 

[Signatures appear on following page]

 

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

 

	
 
    	
Company:
    
	
 
    	
 
    
	
 
    	
BOISE CASCADE COMPANY
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   John T. Sahlberg
    
	
 
    	
Name:
    	
John   T. Sahlberg
    
	
 
    	
Title:
    	
Senior   Vice President, Human Resources and General Counsel
    


 

 

	
 
    	
Seller:
    
	
 
    	
 
    
	
 
    	
BOISE CASCADE HOLDINGS, L.L.C.
    
	
 
    	
 
    
	
 
    	
By:
    	
/s/   Wayne M. Rancourt
    
	
 
    	
Name:
    	
Wayne   M. Rancourt
    
	
 
    	
Title:
    	
Senior   Vice President, Chief Financial Officer and Treasurer
    


 

[Signature Page to Stock Repurchase Agreement]