SCHEDULE F
VOTING AND EXCHANGE TRUST AGREEMENT
MEMORANDUM OF AGREEMENT made as of the day of , 1999.
B E T W E E N:
WEYERHAEUSER COMPANY,
a corporation existing under the laws of the State of
Washington (hereinafter referred to as "Weyerhaeuser"),
OF THE FIRST PART,
- and -
586476 B.C. LTD.,
a company existing under the laws of the
Province of British Columbia
(hereinafter referred to as "Weysub"),
OF THE SECOND PART,
- and -
,
a trust company incorporated under the
laws of Canada (hereinafter referred to
as "Trustee"),
OF THE THIRD PART.
WHEREAS in connection with a merger agreement (the "Merger Agreement")
made June 20, 1999 among Weyerhaeuser, Weysub and MacMillan ▇▇▇▇▇▇▇ Limited
("MB"), Weysub is to issue exchangeable shares (the "Exchangeable Shares")
to certain holders of securities of MB pursuant to the plan of arrangement
(the "Arrangement") and in certain other circumstances, all as contemplated
by the Merger Agreement;
AND WHEREAS pursuant to the Merger Agreement, Weyerhaeuser and Weysub
have agreed to execute a voting and exchange trust agreement substantially
in the form of this Agreement;
NOW THEREFORE in consideration of the respective covenants and
agreements provided in this Agreement and for other good and valuable
consideration (the receipt and sufficiency of which are hereby
acknowledged), the parties hereto covenant and agree as follows:
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ARTICLE 1
DEFINITIONS AND INTERPRETATION
1.1 Definitions
In this Agreement, the following terms shall have the following
meanings:
"Act" means the Company Act (British Columbia), as amended.
"Affiliate" of any person means any other person directly or
indirectly controlled by, or under control of, that person. For the
purposes of this definition, "control" (including, with correlative
meanings, the terms "controlled by" and "under common control of"), as
applied to any person, means the possession by another person,
directly or indirectly, of the power to direct or cause the direction
of the management and policies of that first mentioned person, whether
through the ownership of voting securities, by contract or otherwise.
"Arrangement" means the arrangement under section 192 of the CBCA on
the terms and subject to the conditions set out in the Plan of
Arrangement, subject to any amendments or variations thereto made in
accordance with Article 6 of the Plan of Arrangement or made at the
direction of the Court.
"Automatic Exchange Rights" means the benefit of the obligation of
Weyerhaeuser to effect the automatic exchange of Weyerhaeuser Common
Shares for Exchangeable Shares pursuant to section 5.12.
"Beneficiaries" means the registered holders from time to time of
Exchangeable Shares, other than Weyerhaeuser and its Affiliates.
"Beneficiary Votes" has the meaning ascribed thereto in section 4.2.
"Board of Directors" means the Board of Directors of Weysub.
"Business Day" means any day on which commercial banks are generally
open for business in Seattle, Washington and Vancouver, British
Columbia, other than a Saturday, a Sunday or a day observed as a
holiday in Seattle, Washington under the laws of the State of
Washington or the federal laws of the United States of America or in
Vancouver, British Columbia under the laws of the Province of British
Columbia or the federal laws of Canada.
"Canadian Dollar Equivalent" means, in respect of an amount expressed
in a currency other than Canadian dollars (the "Foreign Currency
Amount") at any date, the product obtained by multiplying (a) the
Foreign Currency Amount by (b) the noon spot exchange rate on such
date for such foreign currency expressed in Canadian dollars as
reported by the Bank of Canada or, in the event such spot exchange
rate is not available, such
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exchange rate on such date for such foreign currency expressed in
Canadian dollars as may be deemed by the Board of Directors to be
appropriate for such purpose.
"Current Market Price" means, in respect of a Weyerhaeuser Common
Share on any date, the Canadian Dollar Equivalent of the average of
the closing bid and asked prices of Weyerhaeuser Common Shares during
a period of 20 consecutive trading days ending not more than three
trading days before such date on the NYSE, or, if the Weyerhaeuser
Common Shares are not then quoted on the NYSE, on such other stock
exchange or automated quotation system on which the Weyerhaeuser
Common Shares are listed or, quoted, as the case may be, as may be
selected by the Board of Directors for such purpose; provided however,
that if in the opinion of the Board of Directors the public
distribution or trading activity of Weyerhaeuser Common Shares during
such period does not create a market which reflects the fair market
value of a Weyerhaeuser Common Share, then the Current Market Price of
a Weyerhaeuser Common Share shall be determined by the Board of
Directors, in good faith and in its sole discretion, and provided
further that any such selection, opinion or determination by the Board
of Directors shall be conclusive and binding.
"Exchange Right" has the meaning ascribed thereto in section 5.1.
"Exchangeable Shares" means a non-voting exchangeable share in the
capital of Weysub, having substantially the rights, privileges,
restrictions and conditions set out in Appendix I to the Plan of
Arrangement.
"Indemnified Parties" has the meaning ascribed thereto in section 9.1.
"Insolvency Event" means the institution by Weysub of any proceeding
to be adjudicated a bankrupt or insolvent or to be wound up, or the
consent of Weysub to the institution of bankruptcy, insolvency or
winding-up proceedings against it, or the filing of a petition, answer
or consent seeking dissolution or winding-up under any bankruptcy,
insolvency or analogous laws, including without limitation the
Companies Creditors' Arrangement Act (Canada) and the Bankruptcy and
Insolvency Act (Canada), and the failure by Weysub to contest in good
faith any such proceedings commenced in respect of Weysub within 30
days of becoming aware thereof, or the consent by Weysub to the filing
of any such petition or to the appointment of a receiver, or the
making by Weysub of a general assignment for the benefit of creditors,
or the admission in writing by Weysub of its inability to pay its
debts generally as they become due, or Weysub not being permitted,
pursuant to solvency requirements of applicable law, to redeem any
Retracted Shares pursuant to section 6.6 of the Share Provisions.
"Liquidation Call Right" has the meaning ascribed thereto in the Plan
of Arrangement.
"Liquidation Event" has the meaning ascribed thereto in section
5.12(b).
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"Liquidation Event Effective Date" has the meaning ascribed thereto in
section 5.12(c).
"List" has the meaning ascribed thereto in section 4.6.
"Merger Agreement" means the agreement made June 20, 1999 among
Weyerhaeuser, Weysub and MB, as amended, supplemented and/or restated
in accordance therewith prior to the Effective Date, providing for,
among other things, the Arrangement.
"NYSE" means the New York Stock Exchange, Inc.
"Officer's Certificate" means, with respect to Weyerhaeuser or Weysub,
as the case may be, a certificate signed by any officer or director of
Weyerhaeuser or Weysub, as the case may be.
"person" includes any individual, firm, partnership, joint venture,
venture capital fund, limited liability company, unlimited liability
company, association, trust, trustee, executor, administrator, legal
personal representative, estate, group, body corporate, corporation,
unincorporated association or organization, government body, syndicate
or other entity, whether or not having legal status.
"Plan of Arrangement" means the plan of arrangement substantially in
the form and content of Schedule D to the Merger Agreement and any
amendments or variations thereto made in accordance with section 6.1
of the Merger Agreement or Article 6 of the Plan of Arrangement or
made at the discretion of the Court.
"Redemption Call Right" has the meaning ascribed thereto in the Plan
of Arrangement.
"Retracted Shares" has the meaning ascribed thereto in section 5.7.
"Retraction Call Right" has the meaning ascribed thereto in the Share
Provisions.
"Share Provisions" means the rights, privileges, restrictions and
conditions attaching to the Exchangeable Shares.
"Support Agreement" means that certain support agreement made as of
even date herewith between Weysub, Weyerhaeuser Newco and Weyerhaeuser
substantially in the form and content of Schedule E to the Merger
Agreement, with such changes thereto as the parties to the Merger
Agreement, acting reasonably, may agree.
"Trust" means the trust created by this Agreement.
"Trust Estate" means the Weyerhaeuser Special Voting Share, any other
securities, the Exchange Right, the Automatic Exchange Rights and any
money or other property which may be held by the Trustee from time to
time pursuant to this Agreement.
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"Trustee" means and, subject to the provisions of Article 10, includes
any successor trustee.
"Voting Rights" means the voting rights attached to the Weyerhaeuser
Special Voting Share.
"Weyerhaeuser Affiliates" means Affiliates of Weyerhaeuser.
"Weyerhaeuser Common Share" means a share of common stock in the
capital of Weyerhaeuser.
"Weyerhaeuser Consent" has the meaning ascribed thereto in section
4.2.
"Weyerhaeuser Meeting" has the meaning ascribed thereto in section
4.2.
"Weyerhaeuser Newco" means 586474 B.C. Ltd., a company existing under
the laws of the Province of British Columbia and being a wholly-owned
subsidiary of Weyerhaeuser.
"Weyerhaeuser Special Voting Share" means the one share of Special
Voting Preferred Stock of Weyerhaeuser issued in its own series which
entitles the holder of record to a number of votes at meetings of
holders of Weyerhaeuser Common Shares equal to the number of
Exchangeable Shares outstanding from time to time (other than
Exchangeable Shares held by Weyerhaeuser and Weyerhaeuser Affiliates),
which share is to be issued to, deposited with, and voted by, the
Trustee as described herein.
"Weyerhaeuser Successor" has the meaning ascribed thereto in section
11.1(a).
1.2 Interpretation Not Affected by Headings, etc.
The division of this Agreement into Articles, sections and other
portions and the insertion of headings are for convenience of reference
only and should not affect the construction or interpretation of this
Agreement. Unless otherwise indicated, all references to an "Article" or
"section" followed by a number and/or a letter refer to the specified
Article or section of this Agreement. The terms "this Agreement",
"hereof", "herein" and "hereunder" and similar expressions refer to this
Agreement and not to any particular Article, section or other portion
hereof and include any agreement or instrument supplementary or ancillary
hereto.
1.3 Number, Gender, etc.
Words importing the singular number only shall include the plural and
vice versa. Words importing any gender shall include all genders.
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1.4 Date for any Action
If any date on which any action is required to be taken under this
Agreement is not a Business Day, such action shall be required to be taken
on the next succeeding Business Day.
ARTICLE 2
PURPOSE OF AGREEMENT
2.1 Establishment of Trust
The purpose of this Agreement is to create the Trust for the benefit
of the Beneficiaries, as herein provided. The Trustee will hold the
Weyerhaeuser Special Voting Share in order to enable the Trustee to execute
the Voting Rights and will hold the Exchange Right and the Automatic
Exchange Rights in order to enable the Trustee to exercise such rights, in
each case as trustee for and on behalf of the Beneficiaries as provided in
this Agreement.
ARTICLE 3
WEYERHAEUSER SPECIAL VOTING SHARE
3.1 Issue and Ownership of the Weyerhaeuser Special Voting Share
Weyerhaeuser hereby issues to and deposits with the Trustee, the
Weyerhaeuser Special Voting Share to be hereafter held of record by the
Trustee as trustee for and on behalf of, and for the use and benefit of,
the Beneficiaries and in accordance with the provisions of this Agreement.
Weyerhaeuser hereby acknowledges receipt from the Trustee as trustee for
and on behalf of the Beneficiaries of good and valuable consideration (and
the adequacy thereof) for the issuance of the Weyerhaeuser Special Voting
Share by Weyerhaeuser to the Trustee. During the term of the Trust and
subject to the terms and conditions of this Agreement, the Trustee shall
possess and be vested with full legal ownership of the Weyerhaeuser Special
Voting Share and shall be entitled to exercise all of the rights and powers
of an owner with respect to the Weyerhaeuser Special Voting Share provided
that the Trustee shall:
(a) hold the Weyerhaeuser Special Voting Share and the legal title
thereto as trustee solely for the use and benefit of the
Beneficiaries in accordance with the provisions of this
Agreement; and
(b) except as specifically authorized by this Agreement, have no
power or authority to sell, transfer, vote or otherwise deal in
or with the Weyerhaeuser Special Voting Share and the
Weyerhaeuser Special Voting Share shall not be used or disposed
of by the Trustee for any purpose other than the purposes for
which this Trust is created pursuant to this Agreement.
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3.2 Legended Share Certificates
Weysub will cause each certificate representing Exchangeable Shares to
bear an appropriate legend notifying the Beneficiaries of their right to
instruct the Trustee with respect to the exercise of the Voting Rights in
respect of the Exchangeable Shares of the Beneficiaries.
3.3 Safe Keeping of Certificate
The certificate representing the Weyerhaeuser Special Voting Share
shall at all times be held in safe keeping by the Trustee.
ARTICLE 4
EXERCISE OF VOTING RIGHTS
4.1 Voting Rights
The Trustee, as the holder of record of the Weyerhaeuser Special
Voting Share, shall be entitled to all of the Voting Rights, including the
right to vote in person or by proxy the Weyerhaeuser Special Voting Share
on any matters, questions, proposals or propositions whatsoever that may
properly come before the shareholders of Weyerhaeuser at a Weyerhaeuser
Meeting or in connection with a Weyerhaeuser Consent. The Voting Rights
shall be and remain vested in and exercised by the Trustee. Subject to
section 7.15:
(a) the Trustee shall exercise the Voting Rights only on the basis of
instructions received pursuant to this Article 4 from
Beneficiaries entitled to instruct the Trustee as to the voting
thereof at the time at which the Weyerhaeuser Meeting is held;
and
(b) to the extent that no instructions are received from a
Beneficiary with respect to the Voting Rights to which such
Beneficiary is entitled, the Trustee shall not exercise or permit
the exercise of such Voting Rights.
4.2 Number of Votes
With respect to all meetings of shareholders of Weyerhaeuser at which
holders of Weyerhaeuser Common Shares are entitled to vote (each, a
"Weyerhaeuser Meeting") and with respect to all written consents sought by
Weyerhaeuser from its shareholders including the holders of Weyerhaeuser
Common Shares (each, a "Weyerhaeuser Consent"), each Beneficiary shall be
entitled to instruct the Trustee to cast and exercise one of the votes
comprised in the Voting Rights for each Exchangeable Share owned of record
by such Beneficiary on the record date established by Weyerhaeuser or by
applicable law for such Weyerhaeuser Meeting or Weyerhaeuser Consent, as
the case may be (the "Beneficiary Votes"), in respect of each matter,
question, proposal or proposition to be voted on at such Weyerhaeuser
Meeting or in connection with such Weyerhaeuser Consent.
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4.3 Mailings to Shareholders
With respect to each Weyerhaeuser Meeting and Weyerhaeuser Consent,
the Trustee will mail or cause to be mailed (or otherwise communicate in
the same manner as Weyerhaeuser utilizes in communications to holders of
Weyerhaeuser Common Shares) to each of the Beneficiaries named in the List
referred to in section 4.6, such mailing or communication to commence on
the same day as the mailing or notice (or other communication) with respect
thereto is commenced by Weyerhaeuser to its shareholders:
(a) a copy of such notice, together with any related materials to be
provided to shareholders of Weyerhaeuser;
(b) a statement that such Beneficiary is entitled to instruct the
Trustee as to the exercise of the Beneficiary Votes with respect
to such Weyerhaeuser Meeting or Weyerhaeuser Consent or, pursuant
to section 4.7, to attend such Weyerhaeuser Meeting and to
exercise personally the Beneficiary Votes thereat;
(c) a statement as to the manner in which such instructions may be
given to the Trustee, including an express indication that
instructions may be given to the Trustee to give:
(i) a proxy to such Beneficiary or his designee to exercise
personally the Beneficiary Votes; or
(ii) a proxy to a designated agent or other representative of
the management of Weyerhaeuser to exercise such Beneficiary
Votes;
(d) a statement that if no such instructions are received from the
Beneficiary, the Beneficiary Votes to which such Beneficiary is
entitled will not be exercised;
(e) a form of direction whereby the Beneficiary may so direct and
instruct the Trustee as contemplated herein; and
(f) a statement of the time and date by which such instructions must
be received by the Trustee in order to be binding upon it, which
in the case of a Weyerhaeuser Meeting shall not be earlier than
the close of business on the second Business Day prior to such
meeting, and of the method for revoking or amending such
instructions.
For the purpose of determining Beneficiary Votes to which a
Beneficiary is entitled in respect of any Weyerhaeuser Meeting or
Weyerhaeuser Consent, the number of Exchangeable Shares owned of record by
the Beneficiary shall be determined at the close of business on the record
date established by Weyerhaeuser or by applicable law for purposes of
determining shareholders entitled to vote at such Weyerhaeuser Meeting.
Weyerhaeuser will notify the Trustee of any decision of the Board of
Directors of Weyerhaeuser with respect to the
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calling of any Weyerhaeuser Meeting and shall provide all necessary
information and materials to the Trustee in each case promptly and in any
event in sufficient time to enable the Trustee to perform its obligations
contemplated by this section 4.3.
4.4 Copies of Shareholder Information
Weyerhaeuser will deliver to the Trustee copies of all proxy materials
(including notices of Weyerhaeuser Meetings but excluding proxies to vote
Weyerhaeuser Common Shares), information statements, reports (including
without limitation, all interim and annual financial statements) and other
written communications that, in each case, are to be distributed from time
to time to holders of Weyerhaeuser Common Shares in sufficient quantities
and in sufficient time so as to enable the Trustee to send those materials
to each Beneficiary at the same time as such materials are first sent to
holders of Weyerhaeuser Common Shares. The Trustee will mail or otherwise
send to each Beneficiary, at the expense of Weyerhaeuser, copies of all
such materials (and all materials specifically directed to the
Beneficiaries or to the Trustee for the benefit of the Beneficiaries by
Weyerhaeuser) received by the Trustee from Weyerhaeuser contemporaneously
with the sending of such materials to holders of Weyerhaeuser Common
Shares. The Trustee will also make available for inspection by any
Beneficiary at the Trustee's principal corporate trust office in Vancouver
all proxy materials, information statements, reports and other written
communications that are:
(a) received by the Trustee as the registered holder of the
Weyerhaeuser Special Voting Share and made available by
Weyerhaeuser generally to the holders of Weyerhaeuser Common
Shares; or
(b) specifically directed to the Beneficiaries or to the Trustee for
the benefit of the Beneficiaries by Weyerhaeuser.
4.5 Other Materials
As soon as reasonably practicable after receipt by Weyerhaeuser or
shareholders of Weyerhaeuser (if such receipt is known by Weyerhaeuser) of
any material sent or given by or on behalf of a third party to holders of
Weyerhaeuser Common Shares generally, including without limitation,
dissident proxy and information circulars (and related information and
material) and tender and exchange offer circulars (and related information
and material), Weyerhaeuser shall use its reasonable efforts to obtain and
deliver to the Trustee copies thereof in sufficient quantities so as to
enable the Trustee to forward such material (unless the same has been
provided directly to Beneficiaries by such third party) to each Beneficiary
as soon as possible thereafter. Immediately upon receipt thereof, the
Trustee will mail or otherwise send to each Beneficiary, at the expense of
Weyerhaeuser, copies of all such materials received by the Trustee from
Weyerhaeuser. The Trustee will also make available for inspection by any
Beneficiary at the Trustee's principal corporate trust office in Vancouver
copies of all such materials.
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4.6 List of Persons Entitled to Vote
Weysub shall, (a) prior to each annual, general and special
Weyerhaeuser Meeting or the seeking of any Weyerhaeuser Consent and (b)
forthwith upon each request made at any time by the Trustee in writing,
prepare or cause to be prepared a list (a "List") of the names and
addresses of the Beneficiaries arranged in alphabetical order and showing
the number of Exchangeable Shares held of record by each such Beneficiary,
in each case at the close of business on the date specified by the Trustee
in such request or, in the case of a List prepared in connection with a
Weyerhaeuser Meeting or an Weyerhaeuser Consent, at the close of business
on the record date established by Weyerhaeuser or pursuant to applicable
law for determining the holders of Weyerhaeuser Common Shares entitled to
receive notice of and/or to vote at such Weyerhaeuser Meeting or to give
consent in connection with such Weyerhaeuser Consent. Each such List shall
be delivered to the Trustee promptly after receipt by Weysub of such
request or the record date for such meeting or seeking of consent, as the
case may be. Weyerhaeuser agrees to give Weysub notice (with a copy to the
Trustee) of the calling of any Weyerhaeuser Meeting or the seeking of any
Weyerhaeuser Consent, together with the record dates therefor, sufficiently
prior to the date of the calling of such meeting or seeking of such consent
so as to enable Weysub to perform its obligations under this section 4.6.
4.7 Entitlement to Direct Votes
Any Beneficiary named in a List prepared in connection with any
Weyerhaeuser Meeting or Weyerhaeuser Consent will be entitled (a) to
instruct the Trustee in the manner described in section 4.3 with respect to
the exercise of the Beneficiary Votes to which such Beneficiary is entitled
or (b) to attend such meeting and personally exercise thereat, as the proxy
of the Trustee, the Beneficiary Votes to which such Beneficiary is
entitled.
4.8 Voting by Trustee, and Attendance of Trustee Representative at Meeting
(a) In connection with each Weyerhaeuser Meeting and Weyerhaeuser
Consent, the Trustee shall exercise, either in person or by
proxy, in accordance with the instructions received from a
Beneficiary pursuant to section 4.3, the Beneficiary Votes as to
which such Beneficiary is entitled to direct the vote (or any
lesser number thereof as may be set forth in the instructions);
provided, however, that such written instructions are received by
the Trustee from the Beneficiary prior to the time and date fixed
by the Trustee for receipt of such instruction in the notice
given by the Trustee to the Beneficiary pursuant to section 4.3.
(b) The Trustee shall cause a representative who is empowered by it
to sign and deliver, on behalf of the Trustee, proxies for Voting
Rights to attend each Weyerhaeuser Meeting. Upon submission by a
Beneficiary (or its designee) of identification satisfactory to
the Trustee's representative, and at the Beneficiary's request,
such representative shall sign and deliver to such Beneficiary
(or its designee) a proxy to exercise personally the Beneficiary
Votes as to which such Beneficiary is otherwise entitled
hereunder to direct the vote, if such Beneficiary
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either (i) has not previously given the Trustee instructions
pursuant to section 4.3 in respect of such meeting or (ii)
submits to such representative written revocation of any such
previous instructions. At such meeting, the Beneficiary
exercising such Beneficiary Votes shall have the same rights as
the Trustee to speak at the meeting in favour of any matter,
question, proposal or proposition, to vote by way of ballot at
the meeting in respect of any matter, question, proposal or
proposition, and to vote at such meeting by way of a show of
hands in respect of any matter, question or proposition.
4.9 Distribution of Written Materials
Any written materials distributed by the Trustee pursuant to this
Agreement shall be sent by mail (or otherwise communicated in the same
manner as Weyerhaeuser utilizes in communications to holders of
Weyerhaeuser Common Shares) to each Beneficiary at its address as shown on
the books of Weysub. Weysub shall provide or cause to be provided to the
Trustee for this purpose, on a timely basis and without charge or other
expense:
(a) a current List; and
(b) upon the request of the Trustee, mailing labels to enable the
Trustee to carry out its duties under this Agreement.
4.10 Termination of Voting Rights
All of the rights of a Beneficiary with respect to the Beneficiary
Votes exercisable in respect of the Exchangeable Shares held by such
Beneficiary, including the right to instruct the Trustee as to the voting
of or to vote personally such Beneficiary Votes, shall be deemed to be
surrendered by the Beneficiary to Weyerhaeuser or Weyerhaeuser Newco, as
the case may be, and such Beneficiary Votes and the Voting Rights
represented thereby shall cease immediately upon the delivery by such
holder to the Trustee of the certificates representing such Exchangeable
Shares in connection with the exercise by the Beneficiary of the Exchange
Right or the occurrence of the automatic exchange of Exchangeable Shares
for Weyerhaeuser Common Shares, as specified in Article 5 (unless, in
either case, Weyerhaeuser shall not have delivered the requisite
Weyerhaeuser Common Shares issuable in exchange therefor to the Trustee for
delivery to the Beneficiaries), or upon the redemption of Exchangeable
Shares pursuant to Article 6 or 7 of the Share Provisions, or upon the
effective date of the liquidation, dissolution or winding-up of Weysub
pursuant to Article 5 of the Share Provisions, or upon the purchase of
Exchangeable Shares from the holder thereof by Weyerhaeuser Newco pursuant
to the exercise by Weyerhaeuser Newco of the Retraction Call Right, the
Redemption Call Right or the Liquidation Call Right.
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ARTICLE 5
EXCHANGE RIGHT AND AUTOMATIC EXCHANGE
5.1 Grant and Ownership of the Exchange Right
Weyerhaeuser hereby grants to the Trustee as trustee for and on behalf
of, and for the use and benefit of, the Beneficiaries the right (the
"Exchange Right"), upon the occurrence and during the continuance of an
Insolvency Event, to require Weyerhaeuser to purchase from each or any
Beneficiary all or any part of the Exchangeable Shares held by the
Beneficiary and the Automatic Exchange Rights, all in accordance with the
provisions of this Agreement. Weyerhaeuser hereby acknowledges receipt
from the Trustee as trustee for and on behalf of the Beneficiaries of good
and valuable consideration (and the adequacy thereof) for the grant of the
Exchange Right and the Automatic Exchange Rights by Weyerhaeuser to the
Trustee. During the term of the Trust and subject to the terms and
conditions of this Agreement, the Trustee shall possess and be vested with
full legal ownership of the Exchange Right and the Automatic Exchange
Rights and shall be entitled to exercise all of the rights and powers of an
owner with respect to the Exchange Right and the Automatic Exchange Rights,
provided that the Trustee shall:
(a) hold the Exchange Right and the Automatic Exchange Rights and the
legal title thereto as trustee solely for the use and benefit of
the Beneficiaries in accordance with the provisions of this
Agreement; and
(b) except as specifically authorized by this Agreement, have no
power or authority to exercise or otherwise deal in or with the
Exchange Right or the Automatic Exchange Rights, and the Trustee
shall not exercise any such rights for any purpose other than the
purposes for which the Trust is created pursuant to this
Agreement.
5.2 Legended Share Certificates
Weysub will cause each certificate representing Exchangeable Shares to
bear an appropriate legend notifying the Beneficiaries of:
(a) their right to instruct the Trustee with respect to the exercise
of the Exchange Right in respect of the Exchangeable Shares held
by a Beneficiary; and
(b) the Automatic Exchange Rights.
5.3 General Exercise of Exchange Right
The Exchange Right shall be and remain vested in and exercisable by
the Trustee. Subject to section 7.15, the Trustee shall exercise the
Exchange Right only on the basis of instructions received pursuant to this
Article 5 from Beneficiaries entitled to instruct the Trustee as to the
exercise thereof. To the extent that no instructions are received from a
Beneficiary with
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respect to the Exchange Right, the Trustee shall not exercise or permit the
exercise of the Exchange Right.
5.4 Purchase Price
The purchase price payable by Weyerhaeuser for each Exchangeable Share
to be purchased by Weyerhaeuser under the Exchange Right shall be an amount
per share equal to (a) the Current Market Price of a Weyerhaeuser Common
Share on the last Business Day prior to the day of closing of the purchase
and sale of such Exchangeable Share under the Exchange Right, which shall
be satisfied in full by Weyerhaeuser causing to be sent to such holder one
Weyerhaeuser Common Share, plus (b) to the extent not paid by Weysub, an
additional amount equivalent to the full amount of all declared and
unpaid dividends on each such Exchangeable Share held by such holder on any
dividend record date which occurred prior to the closing of the purchase
and sale. The purchase price for each such Exchangeable Share so purchased
may be satisfied only by Weyerhaeuser issuing and delivering or causing to
be delivered to the Trustee, on behalf of the relevant Beneficiary, one
Weyerhaeuser Common Share and on the applicable payment date a cheque for
the balance, if any, of the purchase price without interest (but less any
amounts withheld pursuant to section 5.13).
5.5 Exercise Instructions
Subject to the terms and conditions herein set forth, a Beneficiary
shall be entitled, upon the occurrence and during the continuance of an
Insolvency Event, to instruct the Trustee to exercise the Exchange Right
with respect to all or any part of the Exchangeable Shares registered in
the name of such Beneficiary on the books of Weysub. To cause the exercise
of the Exchange Right by the Trustee, the Beneficiary shall deliver to the
Trustee, in person or by certified or registered mail, as its principal
corporate trust office in Vancouver or at such other places in Canada as
the Trustee may from time to time designate by written notice to the
Beneficiaries, the certificates representing the Exchangeable Shares which
such Beneficiary desires Weyerhaeuser to purchase, duly endorsed in blank
for transfer, and accompanied by such other documents and instruments as
may be required to effect a transfer of Exchangeable Shares under the Act
and the by-laws of Weysub and such additional documents and instruments as
the Trustee may reasonably require together with (a) a duly completed form
of notice of exercise of the Exchange Right, contained on the reverse of or
attached to the Exchangeable Share certificates, stating (i) that the
Beneficiary thereby instructs the Trustee to exercise the Exchange Right so
as to require Weyerhaeuser to purchase from the Beneficiary the number of
Exchangeable Shares specified therein, (ii) that such Beneficiary has good
title to and owns all such Exchangeable Shares to be acquired by
Weyerhaeuser free and clear of all liens, claims and encumbrances, (iii)
the names in which the certificates representing Weyerhaeuser Common Shares
issuable in connection with the exercise of the Exchange Right are to be
issued and (iv) the names and addresses of the persons to whom such new
certificates should be delivered and (b) payment (or evidence satisfactory
to the Trustee, Weysub and Weyerhaeuser of payment) of the taxes (if any)
payable as contemplated by section 5.8 of this Agreement. If only a part
of the Exchangeable Shares represented by any certificate or certificates
delivered to the Trustee are to
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be purchased by Weyerhaeuser under the Exchange Right, a new certificate
for the balance of such Exchangeable Shares shall be issued to the holder
at the expense of Weysub.
5.6 Delivery of Weyerhaeuser Common Shares; Effect of Exercise
Promptly after the receipt of the certificates representing the
Exchangeable Shares which the Beneficiary desires Weyerhaeuser to purchase
under the Exchange Right, together with such documents and instruments of
transfer and a duly completed form of notice of exercise of the Exchange
Right (and payment of taxes, if any payable as contemplated by section 5.8
or evidence thereof), duly endorsed for transfer to Weyerhaeuser, the
Trustee shall notify Weyerhaeuser and Weysub of its receipt of the same,
which notice to Weyerhaeuser and Weysub shall constitute exercise of the
Exchange Right by the Trustee on behalf of the holder of such Exchangeable
Shares, and Weyerhaeuser shall promptly thereafter deliver or cause to be
delivered to the Trustee, for delivery to the Beneficiary of such
Exchangeable Shares (or to such other persons, if any, properly designated
by such Beneficiary) the number of Weyerhaeuser Common Shares issuable in
connection with the exercise of the Exchange Right, and on the applicable
payment date cheques for the balance, if any, of the total purchase price
therefor without interest (but less any amounts withheld pursuant to
section 5.13); provided, however, that no such delivery shall be made
unless and until the Beneficiary requesting the same shall have paid (or
provided evidence satisfactory to the Trustee, Weysub and Weyerhaeuser of
the payment of) the taxes (if any) payable as contemplated by section 5.8
of this Agreement. Immediately upon the giving of notice by the Trustee to
Weyerhaeuser and Weysub of the exercise of the Exchange Right as provided
in this section 5.6, the closing of the transaction of purchase and sale
contemplated by the Exchange Right shall be deemed to have occurred and the
holder of such Exchangeable Shares shall be deemed to have transferred to
Weyerhaeuser all of such holder's right, title and interest in and to such
Exchangeable Shares and the related interest in the Trust Estate and shall
cease to be a holder of such Exchangeable Shares and shall not be entitled
to exercise any of the rights of a holder in respect thereof, other than
the right to receive his proportionate part of the total purchase price
therefor, unless the requisite number of Weyerhaeuser Common Shares is not
allotted, issued and delivered by Weyerhaeuser to the Trustee within five
Business Days of the date of the giving of such notice by the Trustee, in
which case the rights of the Beneficiary shall remain unaffected until such
Weyerhaeuser Common Shares are so allotted, issued and delivered by
Weyerhaeuser. Upon delivery by Weyerhaeuser to the Trustee of such
Weyerhaeuser Common Shares, the Trustee shall deliver such Weyerhaeuser
Common Shares to such Beneficiary (or to such other persons, if any,
properly designated by such Beneficiary). Concurrently with such
Beneficiary ceasing to be a holder of Exchangeable Shares, the Beneficiary
shall be considered and deemed for all purposes to be the holder of the
Weyerhaeuser Common Shares delivered to it pursuant to the Exchange Right.
5.7 Exercise of Exchange Right Subsequent to Retraction
In the event that a Beneficiary has exercised its right under Article
6 of the Share Provisions to require Weysub to redeem any or all of the
Exchangeable Shares held by
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the Beneficiary (the "Retracted Shares") and is notified by Weysub pursuant
to section 6.6 of the Share Provisions that Weysub will not be permitted as
a result of solvency requirements of applicable law to redeem all such
Retracted Shares, and provided that Weyerhaeuser Newco shall not have
exercised the Retraction Call Right with respect to the Retracted Shares
and that the Beneficiary has not revoked the retraction request delivered
by the Beneficiary to Weysub pursuant to section 6.1 of the Share
Provisions, the retraction request will constitute and will be deemed to
constitute notice from the Beneficiary to the Trustee instructing the
Trustee to exercise the Exchange Right with respect to those Retracted
Shares that Weysub is unable to redeem. In any such event, Weysub hereby
agrees with the Trustee and in favour of the Beneficiary promptly to
forward or cause to be forwarded to the Trustee all relevant materials
delivered by the Beneficiary to Weysub or to the transfer agent of the
Exchangeable Shares (including without limitation, a copy of the retraction
request delivered pursuant to section 6.1 of the Share Provisions) in
connection with such proposed redemption of the Retracted Shares and the
Trustee will thereupon exercise the Exchange Right with respect to the
Retracted Shares that Weysub is not permitted to redeem and will require
Weyerhaeuser to purchase such shares in accordance with the provisions of
this Article 5.
5.8 Stamp or Other Transfer Taxes
Upon any sale of Exchangeable Shares to Weyerhaeuser pursuant to the
Exchange Right or the Automatic Exchange Rights, the share certificate or
certificates representing Weyerhaeuser Common Shares to be delivered in
connection with the payment of the total purchase price therefor shall be
issued in the name of the Beneficiary of the Exchangeable Shares so sold or
in such names as such Beneficiary may otherwise direct in writing without
charge to the holder of the Exchangeable Shares so sold; provided, however,
that such Beneficiary (a) shall pay (and none of Weyerhaeuser, Weysub or
the Trustee shall be required to pay) any documentary, stamp, transfer or
other taxes that may be payable in respect of any transfer involved in the
issuance or delivery of such shares to a person other than such Beneficiary
or (b) shall have evidenced to the satisfaction of the Trustee,
Weyerhaeuser and Weysub that such taxes, if any, have been paid.
5.9 Notice of Insolvency Event
As soon as practicable following the occurrence of an Insolvency Event
or any event that with the giving of notice or the passage of time or both
would be an Insolvency Event, Weysub and Weyerhaeuser shall give written
notice thereof to the Trustee. As soon as practicable following the
receipt of notice from Weysub and Weyerhaeuser of the occurrence of an
Insolvency Event, or upon the Trustee becoming aware of an Insolvency
Event, the Trustee will mail to each Beneficiary, at the expense of
Weyerhaeuser, a notice of such Insolvency Event, which notice shall contain
a brief statement of the rights of the Beneficiaries with respect to the
Exchange Right.
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5.10 Qualification of Weyerhaeuser Common Shares
Weyerhaeuser covenants that if any Weyerhaeuser Common Shares to be
issued and delivered pursuant to the Exchange Right or the Automatic
Exchange Rights require registration or qualification with or approval of
or the filing of any document, including any prospectus or similar
document, or the taking of any proceeding with or the obtaining of any
order, ruling or consent from any governmental or regulatory authority
under any Canadian or United States federal, provincial or state law or
regulation or pursuant to the rules and regulations of any regulatory
authority or the fulfillment of any other Canadian or United States
federal, provincial or state legal requirement before such shares may be
issued and delivered by Weyerhaeuser to the initial holder thereof or in
order that such shares may be freely traded thereafter (other than any
restrictions of general application on transfer by reason of a holder being
a "control person" of Weyerhaeuser for purposes of Canadian provincial
securities law or an "affiliate" of Weyerhaeuser for purposes of United
States federal or state securities law), Weyerhaeuser will in good faith
expeditiously take all such actions and do all such things as are necessary
or desirable to cause such Weyerhaeuser Common Shares to be and remain duly
registered, qualified or approved. Weyerhaeuser will in good faith
expeditiously take all such actions and do all such things as are
reasonably necessary or desirable to cause all Weyerhaeuser Common Shares
to be delivered pursuant to the Exchange Right or the Automatic Exchange
Rights to be listed, quoted or posted for trading on all stock exchanges
and quotation systems on which outstanding Weyerhaeuser Common Shares have
been listed by Weyerhaeuser and remain listed and are quoted or posted for
trading at such time.
5.11 Weyerhaeuser Common Shares
Weyerhaeuser hereby represents, warrants and covenants that the
Weyerhaeuser Common Shares issuable as described herein will be duly
authorized and validly issued as fully paid and non-assessable and shall be
free and clear of any lien, claim or encumbrance.
5.12 Automatic Exchange on Liquidation of Weyerhaeuser
(a) Weyerhaeuser will give the Trustee notice of each of the
following events at the time set forth below:
(i) in the event of any determination by the Board of Directors
of Weyerhaeuser to institute voluntary liquidation,
dissolution or winding-up proceedings with respect to
Weyerhaeuser or to effect any other distribution of assets
of Weyerhaeuser among its shareholders for the purpose of
winding up its affairs, at least 60 days prior to the
proposed effective date of such liquidation, dissolution,
winding-up or other distribution; and
(ii) as soon as practicable following the earlier of (A) receipt
by Weyerhaeuser of notice of, and (B) Weyerhaeuser
otherwise becoming aware of, any threatened or instituted
claim, suit, petition or other
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proceedings with respect to the involuntary liquidation,
dissolution or winding-up of Weyerhaeuser or to effect any
other distribution of assets of Weyerhaeuser among its
shareholders for the purpose of winding up its affairs, in
each case where Weyerhaeuser has failed to contest in good
faith any such proceeding commenced in respect of
Weyerhaeuser within 30 days of becoming aware thereof.
(b) As soon as practicable following receipt by the Trustee from
Weyerhaeuser of notice of any event (a "Liquidation Event")
contemplated by section 5.12 (a) (i) or 5.12 (a) (ii) above, the
Trustee will give notice thereof to the Beneficiaries. Such
notice shall include a brief description of the automatic
exchange of Exchangeable Shares for Weyerhaeuser Common Shares
provided for in section 5.12(c).
(c) In order that the Beneficiaries will be able to participate on a
pro rata basis with the holders of Weyerhaeuser Common Shares in
the distribution of assets of Weyerhaeuser in connection with a
Liquidation Event, on the fifth Business Day prior to the
effective date (the "Liquidation Event Effective Date") of a
Liquidation Event all of the then outstanding Exchangeable Shares
shall be automatically exchanged for Weyerhaeuser Common Shares.
To effect such automatic exchange, Weyerhaeuser shall purchase on
the fifth Business Day prior to the Liquidation Event Effective
Date each Exchangeable Share then outstanding and held by
Beneficiaries, and each Beneficiary shall sell the Exchangeable
Shares held by it at such time, for a purchase price per share
equal to (a) the Current Market Price of a Weyerhaeuser Common
Share on the fifth Business Day prior to the Liquidation Event
Effective Date, which shall be satisfied in full by Weyerhaeuser
issuing to the Beneficiary one Weyerhaeuser Common Share, and (b)
to the extent not paid by Weysub, an additional amount equivalent
to the full amount of all declared and unpaid dividends on each
such Exchangeable Share held by such holder on any dividend
record date which occurred prior to the date of the exchange.
(d) On the fifth Business Day prior to the Liquidation Event
Effective Date, the closing of the transaction of purchase and
sale contemplated by the automatic exchange of Exchangeable
Shares for Weyerhaeuser Common Shares shall be deemed to have
occurred, and each Beneficiary shall be deemed to have
transferred to Weyerhaeuser all of the Beneficiary's right, title
and interest in and to such Beneficiary's Exchangeable Shares and
the related interest in the Trust Estate and shall cease to be a
holder of such Exchangeable Shares and Weyerhaeuser shall issue
to the Beneficiary the Weyerhaeuser Common Shares issuable upon
the automatic exchange of Exchangeable Shares for Weyerhaeuser
Common Shares and on the applicable payment date shall deliver to
the Trustee for delivery to the Beneficiary a cheque for the
balance, if any, of the total purchase price for such
Exchangeable Shares without interest but less any
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amounts withheld pursuant to section 5.13. Concurrently with
such Beneficiary ceasing to be a holder of Exchangeable Shares,
the Beneficiary shall be considered and deemed for all purposes
to be the holder of the Weyerhaeuser Common Shares issued
pursuant to the automatic exchange of Exchangeable Shares for
Weyerhaeuser Common Shares and the certificates held by the
Beneficiary previously representing the Exchangeable Shares
exchanged by the Beneficiary with Weyerhaeuser pursuant to such
automatic exchange shall thereafter be deemed to represent
Weyerhaeuser Common Shares issued to the Beneficiary by
Weyerhaeuser pursuant to such automatic exchange. Upon the
request of a Beneficiary and the surrender by the Beneficiary of
Exchangeable Share certificates deemed to represent Weyerhaeuser
Common Shares, duly endorsed in blank and accompanied by such
instruments of transfer as Weyerhaeuser may reasonably require,
Weyerhaeuser shall deliver or cause to be delivered to the
Beneficiary certificates representing Weyerhaeuser Common Shares
of which the Beneficiary is the holder.
5.13 Withholding Rights
Weyerhaeuser, Weysub and the Trustee shall be entitled to deduct and
withhold from any consideration otherwise payable under this Agreement to
any holder of Exchangeable Shares or Weyerhaeuser Common Shares such
amounts as Weyerhaeuser, Weysub or the Trustee is required or permitted to
deduct and withhold with respect to such payment under the Income Tax Act
(Canada), the United States Internal Revenue Code of 1986 or any provision
of provincial, state, local or foreign tax law, in each case as amended or
succeeded. To the extent that amounts are so withheld, such withheld
amounts shall be treated for all purposes as having been paid to the holder
of the shares in respect of which such deduction and withholding was made,
provided that such withheld amounts are actually remitted to the
appropriate taxing authority. To the extent that the amount so required or
permitted to be deducted or withheld from any payment to a holder exceeds
the cash portion of the consideration otherwise payable to the holder,
Weyerhaeuser, Weysub and the Trustee are hereby authorized to sell or
otherwise dispose of such portion of the consideration as is necessary to
provide sufficient funds to Weyerhaeuser, Weysub or the Trustee, as the
case may be, to enable it to comply with such deduction or withholding
requirement and Weyerhaeuser, Weysub or the Trustee shall notify the holder
thereof and remit to such holder any unapplied balance of the net proceeds
of such sale. Weyerhaeuser represents and warrants that, based upon facts
currently known to it, it has no current intention, as at the date of this
Agreement, to deduct or withhold from any dividend paid to holders of
Exchangeable Shares any amounts under the United States Internal Revenue
Code of 1986.
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ARTICLE 6
RESTRICTIONS ON ISSUE OF WEYERHAEUSER SPECIAL VOTING STOCK
6.1 Issue of Additional Shares
During the term of this Agreement, Weyerhaeuser will not, without the
consent of the holders at the relevant time of Exchangeable Shares, given
in accordance with section 10.2 of the Share Provisions, issue any shares
of its Special Voting Stock in the same series as Weyerhaeuser Special
Voting Share.
ARTICLE 7
CONCERNING THE TRUSTEE
7.1 Powers and Duties of the Trustee
The rights, powers, duties and authorities of the Trustee under this
Agreement, in its capacity as Trustee of the Trust, shall include:
(a) receipt and deposit of the Weyerhaeuser Special Voting Share from
Weyerhaeuser as Trustee for and on behalf of the Beneficiaries
in accordance with the provisions of this Agreement;
(b) granting proxies and distributing materials to Beneficiaries as
provided in this Agreement;
(c) voting the Beneficiary Votes in accordance with the provisions of
this Agreement;
(d) receiving the grant of the Exchange Right and the Automatic
Exchange Rights from Weyerhaeuser as Trustee for and on behalf of
the Beneficiaries in accordance with the provisions of this
Agreement;
(e) exercising the Exchange Right and enforcing the benefit of the
Automatic Exchange Rights, in each case in accordance with the
provisions of this Agreement, and in connection therewith
receiving from Beneficiaries Exchangeable Shares and other
requisite documents and distributing to such Beneficiaries
Weyerhaeuser Common Shares and cheques, if any, to which such
Beneficiaries are entitled upon the exercise of the Exchange
Right or pursuant to the Automatic Exchange Rights, as the case
may be;
(f) holding title to the Trust Estate;
(g) investing any moneys forming, from time to time, a part of the
Trust Estate as provided in this Agreement;
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(h) taking action on its own initiative or at the direction of a
Beneficiary or Beneficiaries to enforce the obligations of
Weyerhaeuser and Weysub under this Agreement; and
(i) taking such other actions and doing such other things as are
specifically provided in this Agreement.
In the exercise of such rights, powers, duties and authorities the
Trustee shall have (and is granted) such incidental and additional rights,
powers, duties and authority not in conflict with any of the provisions of
this Agreement as the Trustee, acting in good faith and in the reasonable
exercise of its discretion, may deem necessary, appropriate or desirable to
effect the purpose of the Trust. Any exercise of such discretionary
rights, powers, duties and authorities by the Trustee shall be final,
conclusive and binding upon all persons.
The Trustee in exercising its rights, powers, duties and authorities
hereunder shall act honestly and in good faith and with a view to the best
interests of the Beneficiaries and shall exercise the care, diligence and
skill that a reasonably prudent trustee would exercise in comparable
circumstances.
7.2 No Conflict of Interest
The Trustee represents to Weyerhaeuser and Weysub that at the date of
execution and delivery of this Agreement there exists no material conflict
of interest in the role of the Trustee as a fiduciary hereunder and the
role of the Trustee in any other capacity. The Trustee shall, within 90
days after it becomes aware that such material conflict of interest exists,
either eliminate such material conflict of interest or resign in the manner
and with the effect specified in Article 10. If, notwithstanding the
foregoing provisions of this section 7.2, the Trustee has such a material
conflict of interest, the validity and enforceability of this Agreement
shall not be affected in any manner whatsoever by reason only of the
existence of such material conflict of interest. If the Trustee
contravenes the foregoing provisions of this section 7.2, any interested
party may apply to the Supreme Court of British Columbia for an order that
the Trustee be replaced as Trustee hereunder.
7.3 Dealings with Transfer Agents, Registrars, etc.
Weyerhaeuser and Weysub irrevocably authorize the Trustee, from time
to time, to:
(a) consult, communicate and otherwise deal with the respective
registrars and transfer agents, and with any such subsequent
registrar or transfer agent, of the Exchangeable Shares and
Weyerhaeuser Common Shares; and
(b) requisition, from time to time, (i) from any such registrar or
transfer agent any information readily available from the records
maintained by it which the Trustee may reasonably require for the
discharge of its duties and responsibilities under
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this Agreement and (ii) from the transfer agent of Weyerhaeuser
Common Shares, and any subsequent transfer agent of such shares,
the share certificates issuable upon the exercise from time to
time of the Exchange Right and pursuant to the Automatic Exchange
Rights.
Weyerhaeuser and Weysub irrevocably authorize their respective
registrars and transfer agents to comply with all such requests.
Weyerhaeuser covenants that it will supply its transfer agent with duly
executed share certificates for the purpose of completing the exercise from
time to time of the Exchange Right and the Automatic Exchange Rights.
7.4 Books and Records
The Trustee shall keep available for inspection by Weyerhaeuser and
Weysub at the Trustee's principal corporate trust office in Vancouver
correct and complete books and records of account relating to the Trust
created by this Agreement, including without limitation, all relevant data
relating to mailings and instructions to and from Beneficiaries and all
transactions pursuant to the Exchange Right and the Automatic Exchange
Rights. On or before , and on or before January 15th in every year
thereafter, so long as the Weyerhaeuser Special Voting Share is on deposit
with the Trustee, the Trustee shall transmit to Weyerhaeuser and Weysub a
brief report, dated as of the preceding December 31st, with respect to:
(a) the property and funds comprising the Trust Estate as of that
date;
(b) the number of exercises of the Exchange Right, if any, and the
aggregate number of Exchangeable Shares received by the Trustee
on behalf of Beneficiaries in consideration of the issuance by
Weyerhaeuser of Weyerhaeuser Common Shares in connection with the
Exchange Right, during the calendar year ended on such December
31st; and
(c) any action taken by the Trustee in the performance of its duties
under this Agreement which it had not previously reported and
which, in the Trustee's opinion, materially affects the Trust
Estate.
7.5 Income Tax Returns and Reports
The Trustee shall, to the extent necessary, prepare and file on behalf
of the Trust appropriate United States and Canadian income tax returns and
any other returns or reports as may be required by applicable law or
pursuant to the rules and regulations of any securities exchange or other
trading system through which the Exchangeable Shares are traded.
7.6 Indemnification Prior to Certain Actions by Trustee
The Trustee shall exercise any or all of the rights, duties, powers or
authorities vested in it by this Agreement at the request, order or
direction of any Beneficiary upon such Beneficiary furnishing to the
Trustee reasonable security or indemnity against the costs,
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expenses and liabilities which may be incurred by the Trustee therein or
thereby, provided that no Beneficiary shall be obligated to furnish to the
Trustee any such security or indemnity in connection with the exercise by
the Trustee of any of its rights, duties, powers and authorities with
respect to the Weyerhaeuser Special Voting Share pursuant to Article 4,
subject to section 7.15, and with respect to the Exchange Right pursuant to
Article 5, subject to section 7.15, and with respect to the Automatic
Exchange Rights pursuant to Article 5.
None of the provisions contained in this Agreement shall require the
Trustee to expend or risk its own funds or otherwise incur financial
liability in the exercise of any of its rights, powers, duties, or
authorities unless funded, given security and indemnified as aforesaid.
7.7 Action of Beneficiaries
No Beneficiary shall have the right to institute any action, suit or
proceeding or to exercise any other remedy authorized by this Agreement for
the purpose of enforcing any of its rights or for the execution of any
trust or power hereunder unless the Beneficiary has Trustee to take or
institute such action, suit or proceeding and furnished the Trustee with
the security or indemnity referred to in section 7.6 and the Trustee shall
have failed to act within a reasonable time thereafter. In such case, but
not otherwise, the Beneficiary shall be entitled to take proceedings in any
court of competent jurisdiction such as the Trustee might have taken; it
being understood and intended that no one or more Beneficiaries shall have
any right in any manner whatsoever to affect, disturb or prejudice the
rights hereby created by any such action, or to enforce any right hereunder
or the Voting Rights, the Exchange Rights or the Automatic Exchange Rights
except subject to the conditions and in the manner herein provided, and
that all powers and trusts hereunder shall be exercised and all proceedings
at law shall be instituted, had and maintained by the Trustee, except only
as herein provided, and in any event for the equal benefit of all
Beneficiaries.
7.8 Reliance Upon Declarations
The Trustee shall not be considered to be in contravention of any its
rights, powers, duties and authorities hereunder if, when required, it acts
and relies in good faith upon statutory declarations, certificates,
opinions or reports furnished pursuant to the provisions hereof or required
by the Trustee to be furnished to it in the exercise of its rights, powers,
duties and authorities hereunder if such statutory declarations,
certificates, opinions or reports comply with the provisions of section
7.9, if applicable, and with any other applicable provisions of this
Agreement.
7.9 Evidence and Authority to Trustee
Weyerhaeuser and/or Weysub shall furnish to the Trustee evidence of
compliance with the conditions provided for in this Agreement relating to
any action or step required or permitted to be taken by Weyerhaeuser and/or
Weysub or the Trustee under this Agreement or as a result of any obligation
imposed under this Agreement, including, without limitation, in respect of
the Voting Rights or the Exchange Right or the Automatic Exchange Rights
and the taking of
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any other action to be taken by the Trustee at the request of or on the
application of Weyerhaeuser and/or Weysub promptly if and when:
(a) such evidence is required by any other section of this Agreement
to be furnished to the Trustee in accordance with the terms of
this section 7.9; or
(b) the Trustee, in the exercise of its rights, powers, duties and
authorities under this Agreement, gives Weyerhaeuser and/or
Weysub written notice requiring it to furnish such evidence in
relation to any particular action or obligation specified in such
notice.
Such evidence shall consist of an Officer's Certificate of
Weyerhaeuser and/or Weysub or a statutory declaration or a certificate made
by persons entitled to sign an Officer's Certificate stating that any such
condition has been complied with in accordance with the terms of this
Agreement.
Whenever such evidence relates to a matter other than the Voting
Rights or the Exchange Right or the Automatic Exchange Rights or the taking
of any other action to be taken by the Trustee at the request or on the
application of Weyerhaeuser and/or Weysub, and except as otherwise
specifically provided herein, such evidence may consist of a report or
opinion of any solicitor, attorney, auditor, accountant, appraiser, valuer,
engineer or other expert or any other person whose qualifications give
authority to a statement made by him, provided that if such report or
opinion is furnished by a director, officer or employee of Weyerhaeuser
and/or Weysub it shall be in the form of an Officer's Certificate or a
statutory declaration.
Each statutory declaration, Officer's Certificate, opinion or report
furnished to the Trustee as evidence of compliance with a condition
provided for in this Agreement shall include a statement by the person
giving the evidence:
(c) declaring that he has read and understands the provisions of this
Agreement relating to the condition in question;
(d) describing the nature and scope of the examination or
investigation upon which he based the statutory declaration,
certificate, statement or opinion; and
(e) declaring that he has made such examination or investigation as
he believes is necessary to enable him to make the statements or
give the opinions contained or expressed therein.
7.10 Experts, Advisers and Agents
The Trustee may:
(a) in relation to these presents act and rely on the opinion or
advice of or information obtained from any solicitor, attorney,
auditor, accountant, appraiser, valuer,
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engineer or other expert, whether retained by the Trustee or by
Weyerhaeuser and/or Weysub or otherwise, and may employ such
assistants as may be necessary to the proper discharge of its
powers and duties and determination of its rights hereunder and
may pay proper and reasonable compensation for all such legal and
other advice or assistance as aforesaid; and
(b) employ such agents and other assistants as it may reasonably
require for the proper discharge of its powers and duties
hereunder, and may pay reasonable remuneration for all services
performed for it (and shall be entitled to receive reasonable
remuneration for all services performed by it) in the discharge
of the trusts hereof and compensation for all disbursements,
costs and expenses made or incurred by it in the discharge of its
duties hereunder and in the management of the Trust.
7.11 Investment of Moneys Held by Trustee
Unless otherwise provided in this Agreement, any moneys held by or on
behalf of the Trustee which under the terms of this Agreement may or ought
to be invested or which may be on deposit with the Trustee or which may be
in the hands of the Trustee may be invested and reinvested in the name or
under the control of the Trustee in securities in which, under the laws of
the Province of Ontario, trustees are authorized to invest trust moneys,
provided that such securities are stated to mature within two years after
their purchase by the Trustee, and the Trustee shall so invest such moneys
on the written direction of Weysub. Pending the investment of any moneys
as hereinbefore provided, such moneys may be deposited in the name of the
Trustee in any chartered bank in Canada or, with the consent of Weysub, in
the deposit department of the Trustee or any other loan or trust company
authorized to accept deposits under the laws of Canada or any province
thereof at the rate of interest then current on similar deposits.
7.12 Trustee Not Required to Give Security
The Trustee shall not be required to give any bond or security in
respect of the execution of the trusts, rights, duties, powers and
authorities of this Agreement or otherwise in respect of the premises.
7.13 Trustee Not Bound to Act on Request
Except as in this Agreement otherwise specifically provided, the
Trustee shall not be bound to act in accordance with any direction or
request of Weyerhaeuser and/or Weysub or of the directors thereof until a
duly authenticated copy of the instrument or resolution containing such
direction or request shall have been delivered to the Trustee, and the
Trustee shall be empowered to act upon any such copy purporting to be
authenticated and believed by the Trustee to be genuine.
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7.14 Authority to Carry on Business
The Trustee represents to Weyerhaeuser and Weysub that at the date of
execution and delivery by it of this Agreement it is authorized to carry on
the business of a trust company in each of the Provinces of Canada but if,
notwithstanding the provisions of this section 7.14, it ceases to be so
authorized to carry on business, the validity and enforceability of this
Agreement and the Voting Rights, the Exchange Right and the Automatic
Exchange Rights shall not be affected in any manner whatsoever by reason
only of such event but the Trustee shall, within 90 days after ceasing to
be authorized to carry on the business of a trust company in any Province
of Canada, either become so authorized or resign in the manner and with the
effect specified in Article 10.
7.15 Conflicting Claims
If conflicting claims or demands are made or asserted with respect to
any interest of any Beneficiary in any Exchangeable Shares, including any
disagreement between the heirs, representatives, successors or assigns
succeeding to all or any part of the interest of any Beneficiary in any
Exchangeable Shares, resulting in conflicting claims or demands being made
in connection with such interest, then the Trustee shall be entitled, at
its sole discretion, to refuse to recognize or to comply with any such
claims or demands. In so refusing, the Trustee may elect not to exercise
any Voting Rights, Exchange Rights or Automatic Exchange Rights subject to
such conflicting claims or demands and, in so doing, the Trustee shall not
be or become liable to any person on account of such election or its
failure or refusal to comply with any such conflicting claims or demands.
The Trustee shall be entitled to continue to refrain from acting and to
refuse to act until:
(a) the rights of all adverse claimants with respect to the Voting
Rights, Exchange Right or Automatic Exchange Rights subject to
such conflicting claims or demands have been adjudicated by a
final judgment of a court of competent jurisdiction; or
(b) all differences with respect to the Voting Rights, Exchange Right
or Automatic Exchange Rights subject to such conflicting claims
or demands have been conclusively settled by a valid written
agreement binding on all such adverse claimants, and the Trustee
shall have been furnished with an executed copy of such agreement
certified to be in full force and effect.
If the Trustee elects to recognize any claim or comply with any demand
made by any such adverse claimant, it may in its discretion require such
claimant to furnish such surety bond or other security satisfactory to the
Trustee as it shall deem appropriate to fully indemnify it as between all
conflicting claims or demands.
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7.16 Acceptance of Trust
The Trustee hereby accepts the Trust created and provided for by and
in this Agreement and agrees to perform the same upon the terms and
conditions herein set forth and to hold all rights, privileges and benefits
conferred hereby and by law in trust for the various persons who shall from
time to time be Beneficiaries, subject to all the terms and conditions
herein set forth.
ARTICLE 8
COMPENSATION
8.1 Fees and Expenses of the Trustee
Weyerhaeuser and Weysub jointly and severally agree to pay the Trustee
reasonable compensation for all of the services rendered by it under this
Agreement and will reimburse the Trustee for all reasonable expenses
(including taxes other than taxes based on the net income of the Trustee)
and disbursements, including the cost and expense of any suit or litigation
of any character and any proceedings before any governmental agency
reasonably incurred by the Trustee in connection with its duties under this
Agreement; provided that Weyerhaeuser and Weysub shall have no obligation
to reimburse the Trustee for any expenses or disbursements paid, incurred
or suffered by the Trustee in any suit or litigation in which the Trustee
is determined to have acted in bad faith or with negligence, recklessness
or wilful misconduct.
ARTICLE 9
INDEMNIFICATION AND LIMITATION OF LIABILITY
9.1 Indemnification of the Trustee
Weyerhaeuser and Weysub jointly and severally agree to indemnify and
hold harmless the Trustee and each of its directors. officers and agents
appointed and acting in accordance with this Agreement (collectively, the
"Indemnified Parties") against all claims, losses, damages, reasonable
costs, penalties, fines and reasonable expenses (including reasonable
expenses of the Trustee's legal counsel) which, without fraud, negligence,
recklessness, wilful misconduct or bad faith on the part of such
Indemnified Party, may be paid, incurred or suffered by the Indemnified
Party by reason or as a result of the Trustee's acceptance or
administration of the Trust, its compliance with its duties set forth in
this Agreement, or any written or oral instruction delivered to the Trustee
by Weyerhaeuser or Weysub pursuant hereto.
In no case shall Weyerhaeuser or Weysub be liable under this indemnity
for any claim against any of the Indemnified Parties unless Weyerhaeuser
and Weysub shall be notified by the Trustee of the written assertion of a
claim or of any action commenced against the Indemnified Parties, promptly
after any of the Indemnified Parties shall have received any such written
assertion of a claim or shall have been served with a summons or other
first legal process giving information as to the nature and basis of the
claim. Subject to (ii) below, Weyerhaeuser
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and Weysub shall be entitled to participate at their own expense in the
defence and, if Weyerhaeuser and Weysub so elect at any time after receipt
of such notice, either of them may assume the defence of any suit brought
to enforce any such claim. The Trustee shall have the right to employ
separate counsel in any such suit and participate in the defence thereof,
but the fees and expenses of such counsel shall be at the expense of the
Trustee unless: (i) the employment of such counsel has been authorized by
Weyerhaeuser or Weysub; or (ii) the named parties to any such suit include
both the Trustee and Weyerhaeuser or Weysub and the Trustee shall have been
advised by counsel acceptable to Weyerhaeuser or Weysub that there may be
one or more legal defences available to the Trustee that are different from
or in addition to those available to Weyerhaeuser or Weysub and that, in
the judgment of such counsel, would present a conflict of interest were a
joint representation to be undertaken (in which case Weyerhaeuser and
Weysub shall not have the right to assume the defence of such suit on
behalf of the Trustee but shall be liable to pay the reasonable fees and
expenses of counsel for the Trustee).
9.2 Limitation of Liability
The Trustee shall not be held liable for any loss which may occur by
reason of depreciation of the value of any part of the Trust Estate or any
loss incurred on any investment of funds pursuant to this Agreement, except
to the extent that such loss is attributable to the fraud, negligence,
recklessness, wilful misconduct or bad faith on the part of the Trustee.
ARTICLE 10
CHANGE OF TRUSTEE
10.1 Resignation
The Trustee, or any trustee hereafter appointed, may at any time
resign by giving written notice of such resignation to Weyerhaeuser and
Weysub specifying the date on which it desires to resign, provided that
such notice shall not be given less than one month before such desired
resignation date unless Weyerhaeuser and Weysub otherwise agree and
provided further that such resignation shall not take effect until the date
of the appointment of a successor trustee and the acceptance of such
appointment by the successor trustee. Upon receiving such notice of
resignation, Weyerhaeuser and Weysub shall promptly appoint a successor
trustee, which shall be a corporation organized and existing under the laws
of Canada and authorized to carry on the business of a trust company in all
provinces of Canada, by written instrument in duplicate, one copy of which
shall be delivered to the resigning trustee and one copy to the successor
trustee.
10.2 Removal
The Trustee, or any trustee hereafter appointed, may (provided a
successor trustee is appointed) be removed at any time on not less than 30
days' prior notice by written instrument executed by Weyerhaeuser and
Weysub, in duplicate, one copy of which shall be delivered to the trustee
so removed and one copy to the successor trustee.
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10.3 Successor Trustee
Any successor trustee appointed as provided under this Agreement shall
execute, acknowledge and deliver to Weyerhaeuser and Weysub and to its
predecessor trustee an instrument accepting such appointment. Thereupon
the resignation or removal of the predecessor trustee shall become
effective and such successor trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, duties and
obligations of its predecessor under this Agreement, with the like effect
as if originally named as trustee in this Agreement. However, on the
written request of Weyerhaeuser and Weysub or of the successor trustee, the
trustee ceasing to act shall, upon payment of any amounts then due it
pursuant to the provisions of this Agreement, execute and deliver an
instrument transferring to such successor trustee all the rights and powers
of the trustee so ceasing to act. Upon the request of any such successor
trustee, Weyerhaeuser, Weysub and such predecessor trustee shall execute
any and all instruments in writing for more fully and certainly vesting in
and confirming to such successor trustee all such rights and powers.
10.4 Notice of Successor Trustee
Upon acceptance of appointment by a successor trustee as provided
herein, Weyerhaeuser and Weysub shall cause to be mailed notice of the
succession of such trustee hereunder to each Beneficiary specified in a
List. If Weyerhaeuser or Weysub shall fail to cause such notice to be
mailed within 10 days after acceptance of appointment by the successor
trustee, the successor trustee shall cause such notice to be mailed at the
expense of Weyerhaeuser and Weysub.
ARTICLE 11
WEYERHAEUSER SUCCESSORS
11.1 Certain Requirements in Respect of Combination, etc.
Weyerhaeuser shall not consummate any transaction (whether by way of
reconstruction, reorganization, consolidation, merger, transfer, sale,
lease or otherwise) whereby all or substantially all of its undertaking,
property and assets would become the property of any other person or, in
the case of a merger, of the continuing corporation resulting therefrom
unless, but may do so if:
(a) such other person or continuing corporation (herein called the
"Weyerhaeuser Successor"), by operation of law, becomes, without
more, bound by the terms and provisions of this Agreement or, if
not so bound, executes, prior to or contemporaneously with the
consummation of such transaction, a trust agreement supplemental
hereto and such other instruments (if any) as are satisfactory to
the Trustee, acting reasonably, and in the opinion of legal
counsel to the Trustee are reasonably necessary or advisable to
evidence the assumption by the Weyerhaeuser Successor of
liability for all moneys payable and property deliverable
hereunder and the covenant of such Weyerhaeuser Successor to pay
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and deliver or cause to be delivered the same and its agreement
to observe and perform all the covenants and obligations of
Weyerhaeuser under this Agreement; and
(b) such transaction shall, to the satisfaction of the Trustee,
acting reasonably, and in the opinion of legal counsel to the
Trustee, be upon such terms and conditions as substantially to
preserve and not to impair in any material respect any of the
rights, duties, powers and authorities of the Trustee or of the
Beneficiaries hereunder.
11.2 Vesting of Powers in Successor
Whenever the conditions of section 11.1 have been duly observed and
performed, the Trustee, Weyerhaeuser Successor and Weysub shall, if
required by section 11.1, execute and deliver the supplemental trust
agreement provided for in Article 12 and thereupon Weyerhaeuser Successor
shall possess and from time to time may exercise each and every right and
power of Weyerhaeuser under this Agreement in the name of Weyerhaeuser or
otherwise and any act or proceeding by any provision of this Agreement
required to be done or performed by the Board of Directors of Weyerhaeuser
or any officers of Weyerhaeuser may be done and performed with like force
and effect by the directors or officers of such Weyerhaeuser Successor.
11.3 Wholly-Owned Subsidiaries
Subject to section 4.12 of the Merger Agreement, nothing herein shall
be construed as preventing the amalgamation or merger of any wholly-owned
direct or indirect subsidiary of Weyerhaeuser with or into Weyerhaeuser or
the winding-up, liquidation or dissolution of any wholly-owned subsidiary
of Weyerhaeuser provided that all of the assets of such subsidiary are
transferred to Weyerhaeuser or another wholly-owned direct or indirect
subsidiary of Weyerhaeuser and any such transactions are expressly
permitted by this Article 11.
ARTICLE 12
AMENDMENTS AND SUPPLEMENTAL TRUST AGREEMENTS
12.1 Amendments, Modifications, etc.
This trust agreement may not be amended or modified except by an
agreement in writing executed by Weyerhaeuser, Weysub and the Trustee and
approved by the Beneficiaries in accordance with section 10.2 of the Share
Provisions.
12.2 Ministerial Amendments
Notwithstanding the provisions of section 12.1, the parties to this
Agreement may in writing, at any time and from time to time, without the
approval of the Beneficiaries, amend or modify this Agreement for the
purposes of:
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(a) adding to the covenants of any or all parties hereto for the
protection of the Beneficiaries hereunder provided that the Board
of Directors of each of Weysub and Weyerhaeuser shall be of the
good faith opinion that such additions will not be prejudicial to
the rights or interests of the Beneficiaries;
(b) making such amendments or modifications not inconsistent with
this Agreement as may be necessary or desirable with respect to
matters or questions which, in the good faith opinion of the
Board of Directors of each of Weyerhaeuser and Weysub and in the
opinion of the Trustee, having in mind the best interests of the
Beneficiaries it may be expedient to make, provided that such
Boards of Directors and the Trustee shall be of the opinion that
such amendments and modifications will not be prejudicial to the
interests of the Beneficiaries; or
(c) making such changes or corrections which, on the advice of
counsel to Weyerhaeuser, Weysub and the Trustee, are required for
the purpose of curing or correcting any ambiguity or defect or
inconsistent provision or clerical omission or mistake or
manifest error, provided that the Trustee and the Board of
Directors of each of Weyerhaeuser and Weysub shall be of the
opinion that such changes or corrections will not be prejudicial
to the rights and interests of the Beneficiaries.
12.3 Meeting to Consider Amendments
Weysub, at the request of Weyerhaeuser, shall call a meeting or
meetings of the Beneficiaries for the purpose of considering any proposed
amendment or modification requiring approval pursuant hereto. Any such
meeting or meetings shall be called and held in accordance with the by-laws
of Weysub, the Share Provisions and all applicable laws.
12.4 Changes in Capital of Weyerhaeuser and Weysub
At all times after the occurrence of any event contemplated pursuant
to section 2.7 or 2.8 of the Support Agreement or otherwise, as a result of
which either Weyerhaeuser Common Shares or the Exchangeable Shares or both
are in any way changed, this Agreement shall forthwith be amended and
modified as necessary in order that it shall apply with full force and
effect, mutatis mutandis, to all new securities into which Weyerhaeuser
Common Shares or the Exchangeable Shares or both are so changed and the
parties hereto shall execute and deliver a supplemental trust agreement
giving effect to and evidencing such necessary amendments and
modifications.
12.5 Execution of Supplemental Trust Agreements
No amendment to or modification or waiver of any of the provisions of
this Agreement otherwise permitted hereunder shall be effective unless made
in writing and signed by all of the parties hereto. From time to time
Weysub (when authorized by a resolution of its Board of Directors),
Weyerhaeuser (when authorized by a resolution of its Board of Directors)
and the Trustee may, subject to the provisions of these presents, and they
shall, when so directed
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by these presents, execute and deliver by their proper officers, trust
agreements or other instruments supplemental hereto, which thereafter shall
form part hereof, for any one or more of the following purposes:
(a) evidencing the succession of Weyerhaeuser Successors and the
covenants of and obligations assumed by each such Weyerhaeuser
Successor in accordance with the provisions of Article 11 and the
successors of any successor trustee in accordance with the
provisions of Article 10;
(b) making any additions to, deletions from or alterations of the
provisions of this Agreement or the Voting Rights, the Exchange
Right or the Automatic Exchange Rights which, in the opinion of
the Trustee, will not be prejudicial to the interests of the
Beneficiaries or are, in the opinion of counsel to the Trustee,
necessary or advisable in order to incorporate, reflect or comply
with any legislation the provisions of which apply to
Weyerhaeuser, Weysub, the Trustee or this Agreement; and
(c) for any other purposes not inconsistent with the provisions of
this Agreement, including without limitation, to make or evidence
any amendment or modification to this Agreement as contemplated
hereby, provided that, in the opinion of the Trustee, the rights
of the Trustee and Beneficiaries will not be prejudiced thereby.
ARTICLE 13
TERMINATION
13.1 Term
The Trust created by this Agreement shall continue until the earliest
to occur of the following events:
(a) no outstanding Exchangeable Shares are held by a Beneficiary;
(b) each of Weyerhaeuser and Weysub elects in writing to terminate
the Trust and such termination is approved by the Beneficiaries
in accordance with section 10.2 of the Share Provisions; and
(c) 21 years after the death of the last survivor of the descendants
of His Majesty King ▇▇▇▇▇▇ VI of Canada and the United Kingdom of
Great Britain and Northern Ireland living on the date of the
creation of the Trust.
13.2 Survival of Agreement
This Agreement shall survive any termination of the Trust and shall
continue until there are no Exchangeable Shares outstanding held by a
Beneficiary; provided, however, that the provisions of Articles 8 and 9
shall survive any such termination of this Agreement.
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ARTICLE 14
GENERAL
14.1 Severability
If any provision of this Agreement is held to be invalid, illegal or
unenforceable, the validity, legality or enforceability of the remainder of
this Agreement shall not in any way be affected or impaired thereby and the
agreement shall be carried out as nearly as possible in accordance with its
original terms and conditions.
14.2 Enurement
This Agreement shall be binding upon and enure to the benefit of the
parties hereto and their respective successors and permitted assigns and to
the benefit of the Beneficiaries.
14.3 Notices to Parties
All notices and other communications between the parties hereunder
shall be in writing and shall be deemed to have been given if delivered
personally or by confirmed telecopy to the parties at the following
addresses (or at such other address for such party as shall be specified in
like notice):
(a) if to Weyerhaeuser or Weysub, at:
Weyerhaeuser Company
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Vice President and General Counsel
Telecopier No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to the Trustee, at:
Attention:
Telecopier No.:
Any notice or other communication given personally shall be deemed to have
been given and received upon delivery thereof and if given by telecopy
shall be deemed to have been given and received on the date of receipt
thereof unless such day is not a Business Day in which case it shall be
deemed to have been given and received upon the immediately following
Business Day.
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14.4 Notice to Beneficiaries
Any and all notices to be given and any documents to be sent to any
Beneficiaries may be given or sent to the address of such Beneficiary shown
on the register of holders of Exchangeable Shares in any manner permitted
by the by-laws of Weysub from time to time in force in respect of notices
to shareholders and shall be deemed to be received (if given or sent in
such manner) at the time specified in such by-laws, the provisions of which
by-laws shall apply mutatis mutandis to notices or documents as aforesaid
sent to such Beneficiaries.
14.5 Counterparts
This Agreement may be executed in counterparts, each of which shall be
deemed an original, but all of which taken together shall constitute one
and the same instrument.
14.6 Jurisdiction
This Agreement shall be construed and enforced in accordance with the
laws of the Province of British Columbia and the laws of Canada applicable
therein.
14.7 Attornment
Each of the Trustee, Weyerhaeuser and Weysub agrees that any action or
proceeding arising out of or relating to this Agreement may be instituted
in the courts of British Columbia, waives any objection which it may have
now or hereafter to the venue of any such action or proceeding, irrevocably
submits to the jurisdiction of the said courts in any such action or
proceeding, agrees to be bound by any judgment of the said courts and not
to seek, and hereby waives, any review of the merits of any such judgment
by the courts of any other jurisdiction and Weyerhaeuser hereby appoints
Weysub at its registered office in the Province of British Columbia as
attorney for service of process.
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IN WITNESS WHEREOF the parties hereto have caused this Agreement
to be duly executed as of the date first above written.
WEYERHAEUSER COMPANY
By:
---------------------------
Name:
Title:
586476 B.C. LTD.
By:
---------------------------
Name:
Title:
[TRUST COMPANY]
By:
---------------------------
Name:
Title:
By:
---------------------------
Name:
Title:
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