EXHIBIT 99.1
EXECUTION COPY
RESCISSION
AGREEMENT
THIS RESCISSION AGREEMENT (this
“Agreement”) is made as of December 20, 2005, by
and among Boise Cascade Company, a Delaware corporation
(“BCC”), Boise 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,” and together with BCC, BLTH, OMX and
Kooskia, the “Parties”).
WHEREAS, the Parties are party to
that certain Going Public Agreement, dated as of April 27,
2005, and that certain Amended and Restated Going Public Agreement,
dated as of May 17, 2005, pursuant to which the Parties
agreed, among other things, to permit the Board of Managers of
Boise Cascade Holdings, L.L.C. (“BCH”) to cause the
conversion of BCH into a corporation, cause the filing of a
certificate of incorporation for BCC and cause the issuance of
stock in BCC for units of BCH;
WHEREAS, the Parties entered into
the Going Public Agreement and the Amended and Restated Going
Public Agreement in order to facilitate an initial public offering
of equity securities of BCC (the “Proposed
IPO”);
WHEREAS, because the Proposed IPO
has not been completed, the Parties are now electing to rescind the
conversion from a limited liability company to a corporation to the
fullest extent permitted by applicable law with the intent to
restore the legal and financial arrangements among OMX, FPH and BCH
that would have existed had BCH not converted.
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.
Rescission of
Going Public Agreement and Amended and Restated Going Public
Agreement . Each of the Parties
hereby agree that immediately upon the effectiveness of this
Agreement, the Going Public Agreement and Amended and Restated
Going Public Agreement are hereby rescinded without further
liability to each of the parties hereto. As a
consequence of the rescission contemplated by this Section 1A,
the Parties agree that they will determine their relative rights
among themselves as if the Going Public Agreement and Amended and
Restated Going Public Agreement had never been executed and as if
BCH had remained a limited liability company for all of 2005 and
not converted into a corporation and such that the legal and
financial arrangements among FPH, OMX and BCH will be identical in
all material respects, from the date immediately before the
conversion of BCH into a corporation, to such arrangements as would
have existed had such conversion not occurred. Furthermore,
each of FPH, OMX and BCH agrees, with respect to itself, that
(i) BCH will file its federal income tax returns as if it was
a partnership for federal income tax purposes during all of 2005,
(ii) each of OMX and FPH will include in income for federal
income tax purposes its allocable share of BCH’s items of
income, deduction, gain and loss for 2005, and (iii) such
entity has not taken, and will not take, any material position
inconsistent with the position that would have existed had BCH not
converted into a corporation in May 2005.
1B.
Re-Conversion
Into Limited Liability Company . Each of the Parties
agree for all purposes of applicable law that, immediately upon the
effectiveness of this Agreement, BCC is authorized
to cause one of its
authorized officers to file with the Secretary of State for the
State of Delaware, a Certificate of Conversion pursuant to
Section 18-214 of the Delaware Limited Liability Company Act
(the “ LLC Act ”) and Section 266 of the
Delaware General Corporation Law (the “ DGCL ”),
pursuant to which BCC shall re-convert into a limited liability
company formed under the laws of the State of Delaware under the
name of BCH (the “ Conversion ”). Upon the
effectiveness of the Conversion, each of the Parties agrees that
(i) each share of Series A Redeemable Preferred Stock of
BCC outstanding at the effective time of such Conversion shall
convert into one (1) Series A Common Unit of BCH,
(ii) each share of Class B Common Stock of BCC
outstanding at the effective time of such Conversion shall convert
into 13.2882137 Series B Common Units of BCH, and
(iii) each share of Class C Common Stock of BCC
outstanding at the effective time of such Conversion shall convert
into 13.2882137 Series C Common Units of BCH, and that each of
Series A Common Units, Series B Common Units and
Series C Common Units will have the rights, powers and
preferences specified for such equity securities in that certain
Operating Agreement, dated as of October 29, 2004, by and
among BCH, OMX and FPH (the “LLC Agreement”).
Each of OMX and FPH acknowledge and agree that, effective
immediately upon effectiveness of the Conversion, the Certificate
of Incorporation for BCC is terminated without further liability to
BCC (or BCH), OMX or FPH.
1C.
Effectiveness
of Certain Agreements . Each of OMX and FPH
acknowledge and agree that each such person is party to the LLC
Agreement and that, effective immediately upon the effective time
of the Conversion, the LLC Agreement shall be reinstated in full
and be binding upon each of BCH, OMX and FPH, in the same capacity
for each such entity as contemplated by such LLC Agreement and
shall be treated as having been in full force and effect at all
times from and after October 29, 2004. Furthermore, each
of OMX and FPH acknowledge and agree that they remain bound by that
certain Securityholders Agreement, dated as of October 29,
2004, by and among BCH, OMX and FPH and that certain Registration
Rights Agreement, dated as of October 29, 2004, by and among
BCH, OMX and FPH.
Section 2.
Representations and
Warranties of FPH, Kooskia and OMX . As a material inducement
to BCC and BLTH to enter into this Agreement, each of FPH, Kooskia
and OMX represents and warrants for itself (severally and not
jointly) t
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