Exhibit 10.50
OMNIBUS AMENDMENT AND
WAIVER (this “
Amendment ”), dated as of October 25, 2004, by and
among PW EAGLE, INC., a Minnesota corporation (the “
Company ”) and the warrant holders party to the
Warrant Agreement dated as of September 20, 1999 and to the Warrant
Agreement dated as of March 14, 2003 referred to below on the date
hereof (the “ Holders ”).
WHEREAS, the Company and the Holders
are parties to a Warrant Agreement, dated as of September 20, 1999
and to a Warrant Agreement dated as of March 14, 2003
(collectively, the “Warrant Agreements”) pursuant to
which the Holders were issued warrants to purchase shares of Common
Stock or Class B Common Stock of the Company; and
WHEREAS, the Company and the Holders
are parties to a Securities Purchase Agreement, dated as of
September 20, 1999 (as amended, supplemented or otherwise modified
through the date hereof, including pursuant to Amendments No. 1
through No. 12, the “ Purchase Agreement ”)
pursuant to which the Holders purchased $32,500,000 principal
amount of the Company’s senior subordinated notes (the
“ Notes ”);
WHEREAS, the Company desires to pay
the Holders the unpaid principal balance plus accrued but unpaid
interest and applicable prepayment premium such that all
Obligations under the Notes and the Purchase Agreement are
satisfied in full prior to their Maturity;
WHEREAS, the Company has requested,
and the Holders party hereto are willing (subject to the terms and
conditions hereof), to amend and waive certain provisions of the
Warrant Agreements in exchange for payment of the Obligations and
execution by PW Poly (as defined below) of that certain Put and
Call Agreement of even date herewith, all as provided
herein;
NOW, THEREFORE, the parties hereto
agree as follows:
1. Defined Terms .
(a) Capitalized terms used and not
otherwise defined in this Amendment shall have the meanings given
to them in the Warrant Agreements.
(b) Section 1.1 of the Warrant
Agreements shall be amended by adding the following new definitions
to read in their entireties as follows:
“ “2004 Registration
Rights Agreement ” means that certain Registration Rights
Agreement dated on or about the date hereof between the Company and
the holders of the 2004 Warrants.”
““ 2004 Subordinated
Notes ” means collectively the senior subordinated note
in the original principal amount of $16,000,000 and the junior
subordinated note in the original principal amount of $8,000,000
executed by the Company in favor of the purchasers thereof dated on
or about the date hereof.”
“ “2004 Warrants
” means the Warrants issued under that certain Warrant
Agreement dated on or about the date hereof between the Company and
the holders of the 2004 Subordinated Notes.”
“ “2004 Warrant
Agreement ” means that certain Warrant Agreement dated on
or about the date hereof between the Company and the holders of the
2004 Subordinated Notes.”
““ Permitted Spell
Group ” means Harry W. Spell, Bruce A. Richard and
Richard W. Perkins.”
““ PW Poly
Spinoff ” means the transaction consisting of the sale of
certain of the outstanding shares of capital stock of USPoly
Company f/k/a PW Poly Corp. (“PW Poly”) and the
distribution of all of the remaining shares of capital stock of PW
Poly or the cash received from the sale of such shares to the
shareholders and certain holders of warrants to purchase shares of
the Company.”
““ Significant
Transfer ” means a Transfer of shares of Common Stock,
taken together with all prior Transfers of shares of Common Stock
from and after October 25, 2004, equal to or in excess of ten
percent (10%) of the aggregate number of shares of Common Stock
held on October 25, 2004 by all members of the Spell
Group.”
2. Amendment to Anti-Dilution
Rights . Sections 5.8(g) of the Warrant Agreements are hereby
amended by striking the word “and” following the phrase
“Class B Common Stock” within subsection (c) and by the
addition of the following text immediately after the reference to
“and are listed on Schedule 2.4(g)” within subsection
(d):
“, and (e) the issuance of the
2004 Warrants or the issuance from time to time of shares of Common
Stock upon the exercise of any of the 2004
Warrants.”
3. Waiver of Right of First
Offer . The Holders hereby waive any and all rights of first
offer pursuant to Sections 6.2 of the Warrant Agreements relating
to the issuance and sale of the 2004 Subordinated Notes and the
2004 Warrants, and any shares of Common Stock upon exercise of any
of the 2004 Warrants.
2
4. Amendment to Tag Along
Rights . Sections 6.3(a) and (c) of the Warrant Agreements are
hereby amended in their entireties as follows:
“(a) Right to Sell
.
(i) With respect to any proposed
Transfer of Common Stock by William H. Spell (including without
limitation, (i) any Transfer by his majority-controlled Affiliates
or member of Family Group and (ii) any Transfer to the Company or
any of its Subsidiaries, but in each case excluding any Excluded
Transaction), William H. Spell (or such majority-controlled
Affiliate or Family Group member, as the case may be) shall have
the obligation, and each Holder shall have the right, to require
the proposed transferee to offer to purchase from such Holder, at
the same price per share (less, in the case of a purchase of
Warrants, the Exercise Price) and upon the same terms and
conditions of sale offered to William H. Spell (or such
majority-controlled Affiliate or Family Group member, as the case
may be), up to a number of Warrant Shares (issued or represented by
outstanding Warrants) equal to the product (rounded to the nearest
whole number) obtained by multiplying (i) a fraction, the numerator
of which is the number of shares of Common Stock proposed to be
transferred by William H. Spell (or such majority-controlled
Affiliate or Family Group member, as the case may be) and the
denominator of which is the total number of shares of Common Stock
held by William H. Spell (or such majority-controlled Affiliate or
Family Group member, as the case may be), by (ii) the aggregate
number of Warrant Shares (issued or represented by outstanding
Warrants) then held by such Holder. At least 20 Business Days prior
to any Transfer of Common Stock (other than an Excluded
Transaction) by William H. Spell (or such majority-controlled
Affiliate or Family Group member, as the case may be), he (or such
majority-controlled Affiliate or Family Group member, as the case
may be) shall provide notice to each Holder specifying (A) the
maximum number of shares of Common Stock to be transferred, (B) the
name and address of the proposed transferee, (C) the form of
consideration and terms and conditions thereof, (D) the number of
shares which such Holder may require the proposed purchaser to
purchase from it in accordance with this Section 6.3, and (E) a
representation and warranty by him (or such majority-controlled
Affiliate or Family Group member, as the case may be) that the
proposed transferee has been informed of the
“tag-along” rights provided herein and that he will not
Transfer shares unless such transferee has agreed to purchase all
shares required to be purchased from the Holders hereunder. Any
Transfer of Common Stock by William H. Spell (or such
majority-controlled Affiliate or Family Group member, as the case
may be) shall n
