EXHIBIT 6
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PLUM CREEK TIMBER COMPANY, INC.
a Delaware corporation
7,500,000 Shares of Common Stock
PURCHASE AGREEMENT
Dated: November 15, 2001
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Table of Contents
SECTION 1. Representations and Warranties. .................................... 3
(a) Representations and Warranties by the Company ......................... 3
(i) Compliance with Registration Requirements ...................... 3
(ii) Incorporated Documents ......................................... 4
(iii) Independent Accountants ........................................ 4
(iv) Financial Statements ........................................... 4
(v) No Material Adverse Change in Business ......................... 5
(vi) Good Standing of the Company ................................... 5
(vii) Good Standing of Subsidiaries .................................. 6
(viii) Capitalization ................................................. 6
(ix) Authorization of Agreement ..................................... 6
(x) Description of Securities ...................................... 6
(xi) Absence of Defaults and Conflicts .............................. 7
(xii) Absence of Proceedings ......................................... 7
(xiii) Accuracy of Exhibits ........................................... 8
(xiv) Absence of Further Requirements ................................ 8
(xv) Possession of Licenses and Permits ............................. 8
(xvi) Title to Property .............................................. 8
(xvii) Investment Company Act ......................................... 9
(xviii) Environmental Laws ............................................. 9
(xix) REIT ........................................................... 9
i
(xx) Registration Rights ............................................. 10
(xxi) NYSE Listing .................................................... 10
(b) Representations and Warranties by the Selling Stockholders ........... 10
(i) Accurate Disclosure ............................................. 10
(ii) Authorization of Agreements ..................................... 10
(iii) Good and Marketable Title ....................................... 11
(iv) Absence of Manipulation ......................................... 11
(v) Absence of Further Requirements ................................. 11
(vi) Restriction on Sale of Securities ............................... 12
(vii) No Association with NASD ........................................ 12
(c) Officer's Certificates ............................................... 12
SECTION 2. Sale and Delivery to Underwriters; Closing. ........................ 13
(a) Initial Securities ................................................... 13
(b) Option Securities .................................................... 13
(c) Payment .............................................................. 14
(d) Denominations; Registration .......................................... 14
SECTION 3. Covenants of the Company ........................................... 15
(a) Compliance with Securities Regulations and Commission Requests ....... 15
(b) Filing of Amendments ................................................. 15
(c) Delivery of Registration Statements .................................. 15
(d) Delivery of Prospectuses ............................................. 16
ii
(e) Continued Compliance with Securities Laws...................... 16
(f) Blue Sky Qualifications........................................ 16
(g) Rule 158....................................................... 17
(h) Restriction on Sale of Securities.............................. 17
(i) Reporting Requirements......................................... 17
SECTION 4. Payment of Expenses...................................... 17
(a) Expenses....................................................... 18
(b) Expenses of the Selling Stockholders........................... 18
(c) Termination of Agreement....................................... 18
(d) Allocation of Expenses......................................... 19
SECTION 5. Conditions of Underwriters' Obligations.................. 19
(a) Effectiveness of Registration Statement........................ 19
(b) Opinion of Counsel for Company................................. 19
(c) Opinion of In-House Counsel.................................... 19
(d) Opinion of Counsel for the Selling Stockholders................ 20
(e) Opinion of Counsel for Underwriters............................ 20
(f) Officers' Certificate.......................................... 20
(g) Certificate of Selling Stockholders............................ 20
(h) Accountant's Comfort Letter.................................... 21
(i) Bring-down Comfort Letter...................................... 21
iii
(j) No Objection.................................................. 21
(k) Lock-up Agreements............................................ 21
(l) Conditions to Purchase of Option Securities................... 21
(i) Officers' Certificate..................................... 21
(ii) Certificate of Selling Stockholders....................... 21
(iii) Opinion of Counsel for Company............................ 22
(iv) Opinion of In-House Counsel............................... 22
(v) Opinion of Counsel for the Selling Stockholders........... 22
(vi) Opinion of Counsel for Underwriters....................... 22
(vii) Bring-down Comfort Letter................................. 22
(m) Additional Documents.......................................... 22
(n) Termination of Agreement...................................... 23
SECTION 6. Indemnification......................................... 23
(a) Indemnification of Underwriters by the Company................ 23
(b) Indemnification of Underwriters by the Selling Stockholders... 24
(c) Indemnification of Company, Directors and Officers and Selling
Stockholders.................................................. 25
(d) Actions against Parties; Notification......................... 25
(e) Settlement without Consent if Failure to Reimburse............ 26
(f) Other Agreements with Respect to Indemnification.............. 27
SECTION 7. Contribution............................................ 27
SECTION 8. Representations, Warranties and Agreements to Survive
Delivery................................................ 28
iv
SECTION 9. Termination of Agreement................................ 29
(a) Termination; General.......................................... 29
(b) Liabilities................................................... 29
SECTION 10. Default by One or More of the Underwriters.............. 29
SECTION 11. Default by one or more of the Selling Stockholders...... 30
SECTION 12. Notices................................................. 31
SECTION 13. Parties................................................. 31
SECTION 14. GOVERNING LAW AND TIME.................................. 31
SECTION 15. Effect of Headings...................................... 32
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SCHEDULES
Schedule A - List of Underwriters....................... Sch A-1
Schedule B - List of Selling Stockholders............... Sch B-1
Schedule C - Pricing Information........................ Sch C-1
Schedule D - List of Subsidiaries....................... Sch D-1
Schedule E - List of Persons subject to Lock-up......... Sch E-1
EXHIBITS
Exhibit A - Form of Opinion of Company's Counsel.......... A-1
Exhibit B - Form of Opinion of In-House Counsel........... B-1
Exhibit C - Form of Opinion for the Selling Stockholders.. C-1
Exhibit D- Form of Lock-up Letter......................... D-1
vi
PLUM CREEK TIMBER COMPANY, INC.
(a Delaware corporation)
7,500,000 Shares of Common Stock
(Par Value $.01 Per Share)
PURCHASE AGREEMENT
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November 15, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated,
▇▇▇▇▇▇▇, Sachs & Co.
▇.▇. ▇▇▇▇▇▇▇▇ & Co.
as Representatives of the several Underwriters
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
Plum Creek Timber Company, Inc., a Delaware corporation (the
"Company"), and the entities listed in Schedule B hereto (the "Selling
Stockholders"), confirm their respective agreements with ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇ ▇▇▇▇▇"), which is
acting as sole book-runner, and each of the other Underwriters named in Schedule
A hereto (collectively, the "Underwriters," which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), for whom
▇▇▇▇▇▇▇ Lynch, Goldman, Sachs & Co. and ▇.▇. ▇▇▇▇▇▇▇▇ & Co. are acting as
representatives (in such capacity, the "Representatives"), with respect to (i)
the sale by the Selling Stockholders, acting severally and not jointly, and the
purchase by the Underwriters, acting severally and not jointly, of the
respective numbers of shares of Common Stock, par value $.01 per share,
1
of the Company ("Common Stock") set forth in Schedules A and B hereto and (ii)
the grant by the Selling Stockholders to the Underwriters, acting severally and
not jointly, of the option described in Section 2(b) hereof to purchase all or
any part of 1,125,000 additional shares of Common Stock to cover
over-allotments, if any. The aforesaid 7,500,000 shares of Common Stock (the
"Initial Securities") to be purchased by the Underwriters and all or any part of
the 1,125,000 shares of Common Stock subject to the option described in Section
2(b) hereof (the "Option Securities") are hereinafter called, collectively, the
"Securities".
The Company and the Selling Stockholders understand that the
Underwriters propose to make a public offering of the Securities as soon as the
Representatives deem advisable after this Agreement has been executed and
delivered.
The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement on Form S-3 (No.
333-72522) covering the registration of the Securities under the Securities Act
of 1933, as amended (the "1933 Act"), including the related preliminary
prospectus or prospectuses. Promptly after execution and delivery of this
Agreement, the Company will either (i) prepare and file a prospectus in
accordance with the provisions of Rule 430A ("Rule 430A") of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations")
and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or
(ii) if the Company has elected to rely upon Rule 434 ("Rule 434") of the 1933
Act Regulations, prepare and file a term sheet (a "Term Sheet") in accordance
with the provisions of Rule 434 and Rule 424(b). The information included in
such prospectus or in such Term Sheet, as the case may be, that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it became effective (a)
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A Information"
or (b) pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434
Information." Each prospectus used before such registration statement became
effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information, that was used after such effectiveness
and prior to the execution and delivery of this Agreement, is herein called a
"preliminary prospectus." Such registration statement, including the exhibits
thereto, schedules thereto, if any, and the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it
became effective and including the Rule 430A Information and the Rule 434
Information, as applicable, is herein called the "Registration Statement." Any
registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement," and after
such filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The final prospectus, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, in the form first furnished to the Underwriters for use in connection with
the offering of the Securities is herein called the "Prospectus." If Rule 434 is
relied
2
on, the term "Prospectus" shall refer to the preliminary prospectus dated
November 9, 2001 together with the Term Sheet and all references in this
Agreement to the date of the Prospectus shall mean the date of the Term Sheet.
For purposes of this Agreement, all references to the Registration Statement,
any preliminary prospectus, the Prospectus or any Term Sheet or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval system ("▇▇▇▇▇").
All references in this Agreement to financial statements and
schedules and other information which is "contained," "included" or "stated" in
the Registration Statement, any preliminary prospectus or the Prospectus (or
other references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, as of the
Closing Time referred to in Section 2(c) hereof, and as of each Date of Delivery
(if any) referred to in Section 2(b) hereof, and agrees with each Underwriter,
as follows:
(i) Compliance with Registration Requirements. The Company meets
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the requirements for use of Form S-3 under the 1933 Act. Each of the
Registration Statement and any Rule 462(b) Registration Statement has become
effective under the 1933 Act and no stop order suspending the effectiveness of
the Registration Statement or any Rule 462(b) Registration Statement has been
issued under the 1933 Act and no proceedings for that purpose have been
instituted or are pending or, to the knowledge of the Company, are contemplated
by the Commission, and any request on the part of the Commission for additional
information has been complied with. At the respective times the Registration
Statement, any Rule 462(b) Registration Statement and any post-effective
amendments thereto became effective and at the Closing Time (and, if any Option
Securities are purchased, at the Date of Delivery), the Registration Statement,
the Rule 462(b) Registration Statement and any amendments and supplements
thereto complied and will comply in all material respects with the requirements
of the 1933 Act and the 1933 Act Regulations and did not and will not contain an
untrue statement of a material
3
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein not misleading. Neither the Prospectus nor any
amendments or supplements thereto, when read together with the Prospectus, at
the time the Prospectus or any such amendment or supplement was issued and at
the Closing Time (and, if any Option Securities are purchased, at the Date of
Delivery), included or will include an untrue statement of a material fact or
omitted or will omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading. If Rule 434 is used, the Company will comply with the
requirements of Rule 434. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration Statement or
Prospectus made in reliance upon and in conformity with information furnished to
the Company in writing by any Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for
use in the Registration Statement or Prospectus. Each preliminary prospectus and
the prospectus filed as part of the Registration Statement as originally filed
or as part of any amendment thereto, or filed pursuant to Rule 424 under the
1933 Act, complied when so filed in all material respects with the 1933 Act
Regulations and each preliminary prospectus and the Prospectus delivered to the
Underwriters for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(ii) Incorporated Documents. The documents incorporated or deemed to
----------------------
be incorporated by reference in the Registration Statement and the Prospectus,
at the time they were or hereafter are filed with the Commission, complied and
will comply in all material respects with the requirements of the 1934 Act and
the rules and regulations of the Commission thereunder (the "1934 Act
Regulations"), and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective, at the time
the Prospectus was issued and at the Closing Time (and, if any Option Securities
are purchased, at the Date of Delivery), did not and will not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading.
(iii) Independent Accountants. The accountants who certified the
-----------------------
financial statements and supporting schedules included in the Registration
Statement are independent public accountants as required by the 1933 Act and the
1933 Act Regulations.
(iv) Financial Statements. The financial statements included in the
--------------------
Registration Statement and the Prospectus, together with the related schedules
and notes, present fairly, in all material respects, the financial position of
each of the
4
Company and its consolidated subsidiaries and The Timber Company (as defined in
the Registration Statement) and its consolidated subsidiaries, as applicable, at
the dates indicated and the statement of operations, stockholders' equity and
cash flows of each of the Company and its consolidated subsidiaries, as
applicable, and The Timber Company and its consolidated subsidiaries, as
applicable, for the periods specified; said financial statements have been
prepared in conformity with generally accepted accounting principles ("GAAP")
applied on a consistent basis throughout the periods involved, except as set
forth therein. The supporting schedules, if any, included in the Registration
Statement present fairly, in all material respects, in accordance with GAAP the
information required to be stated therein. The selected financial data and the
summary financial information included in the Prospectus present fairly, in all
material respects, the information shown therein and have been compiled on a
basis consistent with that of the audited financial statements included in the
Registration Statement. The pro forma financial statements and the related notes
thereto included in the Registration Statement and the Prospectus present
fairly, in all material respects, the information shown therein, have been
prepared in accordance with the Commission's rules and guidelines with respect
to pro forma financial statements and have been properly compiled on the bases
described therein, and the assumptions used in the preparation thereof are
reasonable and the adjustments used therein are appropriate to give effect to
the transactions and circumstances referred to therein. All pro forma financial
statements and related notes that are required to be included in the
Registration Statement and the Prospectus have been so included.
(v) No Material Adverse Change in Business. Since the respective
--------------------------------------
dates as of which information is given in the Registration Statement and the
Prospectus, except as otherwise stated therein, (A) there has been no material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary course of
business (a "Material Adverse Effect"), (B) there have been no transactions
entered into by the Company or any of its subsidiaries, other than those in the
ordinary course of business, which are material with respect to the Company and
its subsidiaries considered as one enterprise, and (C) except for regular
quarterly dividends on the Common Stock in amounts per share that are consistent
with past practice, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock.
(vi) Good Standing of the Company. The Company has been duly
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organized and is validly existing as a corporation in good standing under the
laws of the State of Delaware and has corporate power and authority to own,
lease and
5
operate its properties and to conduct its business as described in the
Prospectus and to enter into and perform its obligations under this Agreement;
and the Company is duly qualified as a foreign corporation to transact business
and is in good standing in each other jurisdiction in which such qualification
is required, whether by reason of the ownership or leasing of property or the
conduct of business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect.
(vii) Good Standing of Subsidiaries. Each "significant subsidiary" of
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the Company (as such term is defined in Rule 1-02 of Regulation S-X) (each a
"Subsidiary" and, collectively, the "Subsidiaries") has been duly organized and
is validly existing as a corporation, partnership or limited liability company
in good standing under the laws of the jurisdiction of its formation, has
corporate, partnership or limited liability company power and authority to own,
lease and operate its properties and to conduct its business as described in the
Prospectus and is duly qualified as a foreign corporation, partnership or
limited liability company to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a Material
Adverse Effect; except as otherwise disclosed in the Registration Statement, all
of the issued and outstanding equity interests of each such Subsidiary has been
duly authorized and validly issued, is fully paid and non-assessable and is
owned by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance, claim or equity; none of
the outstanding equity interests of any Subsidiary was issued in violation of
the preemptive or similar rights of any securityholder of such Subsidiary. The
only subsidiaries of the Company are the subsidiaries listed on Schedule D
hereto.
(viii) Capitalization. The shares of issued and outstanding capital
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stock, including the Securities to be purchased by the Underwriters from the
Selling Stockholders, have been duly authorized and validly issued and are fully
paid and non-assessable; none of the outstanding shares of capital stock,
including the Securities to be purchased by the Underwriters from the Selling
Stockholders, was issued in violation of the preemptive or other similar rights
of any securityholder of the Company.
(ix) Authorization of Agreement. This Agreement has been duly
--------------------------
authorized, executed and delivered by the Company.
(x) Description of Securities. The Common Stock conforms to all
-------------------------
statements relating thereto incorporated in the Prospectus and such description
6
conforms in all material respects to the rights set forth in the
instruments defining the same; no holder of the Securities will be subject
to personal liability by reason of being such a holder.
(xi) Absence of Defaults and Conflicts. Neither the Company nor any
---------------------------------
of its subsidiaries is in violation of its charter or by-laws or in default
in the performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of trust,
loan or credit agreement, note, lease or other agreement or instrument to
which the Company or any of its subsidiaries is a party or by which it or
any of them may be bound, or to which any of the property or assets of the
Company or any subsidiary is subject (collectively, "Agreements and
Instruments") except for such defaults that would not result in a Material
Adverse Effect; and the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated herein and
compliance by the Company with its obligations hereunder have been duly
authorized by all necessary corporate action and do not and will not,
whether with or without the giving of notice or passage of time or both,
conflict with or constitute a breach of, or default or Repayment Event (as
defined below) under, or result in the creation or imposition of any lien,
charge or encumbrance upon any property or assets of the Company or any
subsidiary pursuant to, the Agreements and Instruments (except for such
conflicts, breaches or defaults or liens, charges or encumbrances that
would not result in a Material Adverse Effect), nor will such action result
in any violation of the provisions of the organizational instrument of the
Company or any subsidiary or any law, statute, rule, regulation, judgment,
order, writ or decree of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any
subsidiary or any of their assets, properties or operations and that is, to
the knowledge of the Company, applicable to the Company or any of its
subsidiaries. As used herein, a "Repayment Event" means any event or
condition which gives the holder of any note, debenture or other evidence
of indebtedness (or any person acting on such holder's behalf) the right to
require the repurchase, redemption or repayment of all or a portion of such
indebtedness by the Company or any subsidiary.
(xii) Absence of Proceedings. There is no action, suit, proceeding,
----------------------
inquiry or investigation before or brought by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of
the Company, threatened, against or affecting the Company or any
subsidiary, which is required to be disclosed in the Registration Statement
(other than as disclosed therein), or which would reasonably be expected to
result in a Material Adverse Effect, or which would reasonably be expected
to materially and adversely affect the consummation of the transactions
contemplated in this Agreement or the
7
performance by the Company of its obligations hereunder; the aggregate of
all pending legal or governmental proceedings to which the Company or any
subsidiary is a party or of which any of their respective property or
assets is subject which are not described in the Registration Statement,
including ordinary routine litigation incidental to the business, would not
reasonably be expected to result in a Material Adverse Effect.
(xiii) Accuracy of Exhibits. There are no contracts or documents which
--------------------
are required to be described in the Registration Statement, the Prospectus
or the documents incorporated by reference therein or to be filed as
exhibits thereto which have not been so described and filed as required.
(xiv) Absence of Further Requirements. No filing with, or
-------------------------------
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or agency
is necessary or required for the performance by the Company of its
obligations hereunder, in connection with the offering and sale of the
Securities hereunder or the consummation by the Company of the transactions
contemplated by this Agreement, except such as have been already obtained
or as may be required under the 1933 Act or the 1933 Act Regulations or
state securities laws.
(xv) Possession of Licenses and Permits. The Company and its
----------------------------------
subsidiaries possess such permits, licenses, approvals, consents and other
authorizations (collectively, "Governmental Licenses") issued by the
appropriate federal, state, local or foreign regulatory agencies or bodies
necessary to conduct the business now operated by them, except where the
failure to possess such authorizations would not, individually or in the
aggregate, result in a Material Adverse Effect; the Company and its
subsidiaries are in compliance with the terms and conditions of all such
Governmental Licenses, except where the failure so to comply would not,
singly or in the aggregate, have a Material Adverse Effect; all of the
Governmental Licenses are valid and in full force and effect, except when
the invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which, singly
or in the aggregate, if the subject of an unfavorable decision, ruling or
finding, would result in a Material Adverse Effect.
(xvi) Title to Property. The Company and its subsidiaries have good
-----------------
and marketable title to all real property (other than timberlands) owned by
the Company and its subsidiaries and good title to all other properties
(including timberlands) owned by them, in each case, free and clear of all
mortgages, pledges,
8
liens, security interests, claims, restrictions or encumbrances of any kind
except such as (a) are described in the Prospectus or (b) such defects in
title and, in the case of properties or assets which are leased, such
defects in leasehold interests, as would not reasonably be expected to
materially impair the value of all such properties or assets or materially
interfere with the ordinary conduct of the business of the Company and its
subsidiaries as currently conducted and currently proposed to be conducted.
(xvii) Investment Company Act. The Company is not an "investment
----------------------
company" as such term is defined in the Investment Company Act of 1940, as
amended (the "1940 Act").
(xviii) Environmental Laws. Except as described in the Registration
------------------
Statement and except as would not, singly or in the aggregate, result in a
Material Adverse Effect, (A) neither the Company nor any of its
subsidiaries is in violation of any federal, state, local or foreign
statute, law, rule, regulation, ordinance, code, policy or rule of common
law or any judicial or administrative interpretation thereof, including any
judicial or administrative order, consent, decree or judgment, relating to
pollution or protection of human health, the environment (including,
without limitation, ambient air, surface water, groundwater, land surface
or subsurface strata) or wildlife, including, without limitation, laws and
regulations relating to the release or threatened release of chemicals,
pollutants, contaminants, wastes, toxic substances, hazardous substances,
petroleum or petroleum products (collectively, "Hazardous Materials") or to
the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Hazardous Materials (collectively,
"Environmental Laws"), (B) the Company and its subsidiaries have all
permits, authorizations and approvals required under any applicable
Environmental Laws and are each in compliance with their requirements, (C)
there are no pending or, to the knowledge of the Company, threatened
administrative, regulatory or judicial actions, suits, demands, demand
letters, claims, liens, notices of noncompliance or violation,
investigation or proceedings relating to any Environmental Law against the
Company or any of its subsidiaries and (D) to the knowledge of the Company,
there are no events or circumstances that would reasonably be expected to
form the basis of an order for clean-up or remediation, or an action, suit
or proceeding by any private party or governmental body or agency, against
or affecting the Company or any of its subsidiaries relating to Hazardous
Materials or any Environmental Laws.
(xix) REIT. Beginning with its taxable year ending December 31, 1999,
----
the Company has been, and will for all taxable years thereafter continue to
be, organized in conformity with the requirements for qualification as a
"real estate investment trust" (a "REIT") under the Internal Revenue Code
of 1986, as
9
amended (the "Code"); and, the Company has operated its business, and will
continue to operate its business for all taxable years following the date
hereof, in a manner that has allowed it and will allow it to qualify as a
REIT. The Company has elected to be taxable as a REIT on its federal income
tax return (and on any appropriate state tax return) for each year
beginning with the taxable year ending December 31, 1999 and will do so for
the taxable year ending December 31, 2001.
(xx) Registration Rights. There are no contracts, agreements
-------------------
or understandings between the Company and any person granting such person
the right to require the Company to file a registration statement under the
1933 Act with respect to any securities of the Company or to require the
Company to include such securities with the Securities registered pursuant
to the Registration Statement, except for such as were granted to the
Selling Stockholders pursuant to a Registration Rights Agreement (the
"Registration Rights Agreement") between the Company and the Selling
Stockholders dated as of July 1, 1999.
(xxi) NYSE Listing. The outstanding shares of Common Stock,
------------
including the Securities, are listed on the New York Stock Exchange (the
"NYSE").
(b) Representations and Warranties by the Selling Stockholders. Each
Selling Stockholder severally represents and warrants to each Underwriter as of
the date hereof, as of the Closing Time, and, if the Selling Stockholder is
selling Option Securities on a Date of Delivery, as of each such Date of
Delivery, and agrees with each Underwriter, as follows:
(i) Accurate Disclosure. The information with respect to
--------------------
such Selling Stockholder contained in the Registration Statement and the
Prospectus, in each case under the caption "Selling Stockholders," complies
in all material respects with the requirements of Item 507 of the
Commission's Regulation S-K and such information does not include, and at
the Closing Time (and, if any Option Securities are purchased, at the Date
of Delivery) will not include, an untrue statement of a material fact or
omit to state a material fact required to be stated in such information or
necessary to make such information not misleading. Such Selling Stockholder
hereby agrees that it has provided, or shall be deemed to have provided,
such information pertaining to it in writing to the Company for use in
preparing such documents.
(ii) Authorization of Agreements. Each Selling Stockholder
----------------------------
has the full right, power and authority to enter into this Agreement and to
sell, transfer and deliver the Securities to be sold by such Selling
Stockholder hereunder. The execution and delivery of this Agreement and the
sale and delivery of the Securities to be sold by such Selling Stockholder
and the consummation of the
10
transactions contemplated herein and compliance by such Selling Stockholder
with its obligations hereunder have been duly authorized by such Selling
Stockholder and do not and will not, whether with or without the giving of
notice or passage of time or both, conflict with or constitute a breach of,
or default under, or result in the creation or imposition of any tax, lien,
charge or encumbrance upon the Securities to be sold by such Selling
Stockholder or any property or assets of such Selling Stockholder pursuant
to any contract, indenture, mortgage, deed of trust, loan or credit
agreement, note, license, lease or other agreement or instrument to which
such Selling Stockholder is a party or by which such Selling Stockholder
may be bound, or to which any of the property or assets of such Selling
Stockholder is subject, nor will such action result in any violation of the
provisions of the charter or by-laws or other organizational instrument of
such Selling Stockholder, if applicable, or any applicable treaty, law,
statute, rule, regulation, judgment, order, writ or decree of any
government, government instrumentality or court, domestic or foreign,
having jurisdiction over such Selling Stockholder or any of its properties.
(iii) Good and Marketable Title. Such Selling Stockholder has and will
-------------------------
at the Closing Time and, if any Option Securities are purchased, on the
Date of Delivery have good and marketable title to the Securities to be
sold by such Selling Stockholder hereunder, free and clear of any security
interest, mortgage, pledge, lien, charge, claim, equity or encumbrance of
any kind, other than pursuant to this Agreement; and upon delivery of such
Securities and payment of the purchase price therefor as herein
contemplated, assuming each such Underwriter has no notice of any adverse
claim, each of the Underwriters will receive good and marketable title to
the Securities purchased by it from such Selling Stockholder, free and
clear of any security interest, mortgage, pledge, lien, charge, claim,
equity or encumbrance of any kind.
(iv) Absence of Manipulation. Such Selling Stockholder has not taken,
-----------------------
and will not take, directly or indirectly, any action which is designed to
or which has constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any security of the
Company to facilitate the sale or resale of the Securities.
(v) Absence of Further Requirements. No filing with, or consent,
-------------------------------
approval, authorization, order, registration, qualification or decree of,
any court or governmental authority or agency, domestic or foreign, is
necessary or required for the performance by each Selling Stockholder of
its obligations hereunder or in connection with the sale and delivery of
the Securities hereunder, except such as may have previously been made or
obtained or as may be required under the 1933 Act or the 1933 Act
Regulations or state securities laws.
11
(vi) Restriction on Sale of Securities. During a period of 90 days
---------------------------------
from the date of the Prospectus, such Selling Stockholder will not, without
the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, directly or indirectly, (i)
offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right
or warrant to purchase or otherwise transfer or dispose of any share of
Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, whether now owned or hereafter acquired by
such Selling Stockholder or with respect to which such Selling Stockholder
has or hereafter acquires the power of disposition or request that any
registration statement under the 1933 Act with respect to any of the
foregoing be filed or (ii) enter into any swap or any other agreement or
any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock,
whether any such swap or transaction described in clause (i) or (ii) above
is to be settled by delivery of Common Stock or such other securities, in
cash or otherwise. The foregoing sentence shall not apply to: (A) the
Securities to be sold hereunder or (B) distributions by the Selling
Stockholders of Common Stock to their limited partners, provided that such
limited partners agree in writing to be bound by this subsection. In
addition, notwithstanding the first sentence of this paragraph, in the
event that any Selling Stockholder distributes Common Stock to its limited
partners pursuant to clause (B) of the preceding sentence, such limited
partner may (i) make contributions of Common Stock to bona fide charities;
provided, however, that the aggregate amount of such contributions may not
exceed 15% of the aggregate number of shares of Common Stock distributed to
such limited partner since the date of the Prospectus and (ii) make
contributions of Common Stock to bona fide charities in excess of the
limitation set forth in clause (i) of this sentence if such charity agrees
in writing to be bound by this subsection.
(vii) No Association with NASD. Except as previously disclosed in
------------------------
writing by the Selling Stockholders to ▇▇▇▇▇▇▇ ▇▇▇▇▇ on behalf of the
Underwriters, neither such Selling Stockholder nor any of its affiliates
directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, or has any other
association with (within the meaning of Article I, Section 1(m) of the
By-laws of the National Association of Securities Dealers, Inc.), any
member firm of the National Association of Securities Dealers, Inc.
(c) Officer's Certificates. Any certificate signed by any officer of
the Company or any of its subsidiaries delivered to the Representatives or to
counsel for the Underwriters shall be deemed a representation and warranty by
the Company to each Underwriter as to the matters covered thereby; and any
certificate signed by or on behalf of the Selling Stockholders as such and
delivered to the Representatives or to counsel for
12
the Underwriters pursuant to the terms of this Agreement shall be deemed a
representation and warranty by such Selling Stockholder as to the as to the
matters covered thereby.
SECTION 2. Sale and Delivery to Underwriters; Closing.
------------------------------------------
(a) Initial Securities. On the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, each
Selling Stockholder, severally and not jointly, agrees to sell to each
Underwriter, severally and not jointly, and each Underwriter, severally and not
jointly, agrees to purchase from each Selling Stockholder, at the price per
share set forth in Schedule C, that proportion of the number of Initial
Securities set forth in Schedule B opposite the name of such Selling Stockholder
which the number of Initial Securities set forth in Schedule A opposite the name
of such Underwriter, plus any additional number of Initial Securities which such
Underwriter may become obligated to purchase pursuant to the provisions of
Section 10 hereof, bears to the total number of Initial Securities, subject, in
each case, to such adjustments among the Underwriters as the Representatives in
their sole discretion shall make to eliminate any sales or purchases of
fractional securities.
(b) Option Securities. In addition, on the basis of the representations
and warranties herein contained and subject to the terms and conditions herein
set forth, the Selling Stockholders, severally and not jointly hereby grant an
option to the Underwriters, severally and not jointly, to purchase up to that
proportion of the number of Option Securities set forth in Schedule B opposite
the name of such Selling Stockholder at the price per share set forth in
Schedule C, less an amount per share equal to any dividends or distributions
declared by the Company and payable on the Initial Securities but not payable on
the Option Securities. The option hereby granted will expire 30 days after the
date hereof and may be exercised in whole or in part from time to time only for
the purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Securities upon notice by the
Representatives to the Selling Stockholders setting forth the number of Option
Securities as to which the several Underwriters are then exercising the option
and the time and date of payment and delivery for such Option Securities. Any
such time and date of delivery (a "Date of Delivery") shall be determined by the
Representatives, but shall not be later than seven full business days after the
exercise of said option, nor in any event prior to the Closing Time, as
hereinafter defined. If the option is exercised as to all or any portion of the
Option Securities, each of the Underwriters, acting severally and not jointly,
will purchase from each of the Selling Stockholders on a pro rata basis that
proportion of the total number of Option Securities then being purchased which
the number of Initial Securities set forth in Schedule A opposite the name of
such Underwriter bears to the total number of Initial Securities, subject in
each case to such adjustments as the
13
Representatives in their discretion shall make to eliminate any sales or
purchases of fractional shares.
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of Fried,
Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇,
▇▇▇▇▇, or at such other place as shall be agreed upon by the Representatives and
the Company and the Selling Stockholders, at 9:00 A.M. (Eastern time) on the
third (fourth, if the pricing occurs after 4:30 P.M. (Eastern time) on any given
day) business day after the date hereof (unless postponed in accordance with the
provisions of Section 10), or such other time not later than ten business days
after such date as shall be agreed upon by the Representatives and the Company
and the Selling Stockholders (such time and date of payment and delivery being
herein called "Closing Time").
In addition, in the event that any or all of the Option Securities are
purchased by the Underwriters, payment of the purchase price for, and delivery
of certificates for, such Option Securities shall be made at the above-mentioned
offices, or at such other place as shall be agreed upon by the Representatives
and the Company and the Selling Stockholders, on each Date of Delivery as
specified in the notice from the Representatives to the Company and the Selling
Stockholders.
Payment shall be made to the Selling Stockholders by wire transfer of
immediately available funds to a bank account designated by the Selling
Stockholders against delivery to the Representatives for the respective accounts
of the Underwriters of certificates for the Securities to be purchased by them.
It is understood that each Underwriter has authorized the Representatives, for
its account, to accept delivery of, receipt for, and make payment of the
purchase price for, the Initial Securities and the Option Securities, if any,
which it has agreed to purchase. ▇▇▇▇▇▇▇ ▇▇▇▇▇, individually and not as
representative of the Underwriters, may (but shall not be obligated to) make
payment of the purchase price for the Initial Securities or the Option
Securities, if any, to be purchased by any Underwriter whose funds have not been
received by the Closing Time or the relevant Date of Delivery, as the case may
be, but such payment shall not relieve such Underwriter from its obligations
hereunder.
(d) Denominations; Registration. Certificates for the Initial Securities
and the Option Securities, if any, shall be in such denominations and registered
in such names as the Representatives may request in writing at least one full
business day before the Closing Time or the relevant Date of Delivery, as the
case may be. The certificates for the Initial Securities and the Option
Securities, if any, will be made available for examination and packaging by the
Representatives in The City of New York not later than 10:00 A.M. (Eastern time)
on the business day prior to the Closing Time or the relevant Date of Delivery,
as the case may be.
14
SECTION 3. Covenants of the Company. The Company covenants with each
------------------------
Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests. The
Company, subject to Section 3(b), will comply with the requirements of Rule 430A
or Rule 434, as applicable, and will notify the Representatives immediately, and
confirm the notice in writing, (i) when any post-effective amendment to the
Registration Statement shall become effective, or any supplement to the
Prospectus or any amended Prospectus shall have been filed, (ii) of the receipt
of any comments from the Commission, (iii) of any request by the Commission for
any amendment to the Registration Statement or any amendment or supplement to
the Prospectus or for additional information, and (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or of any order preventing or suspending the use of any preliminary
prospectus, or of the suspension of the qualification of the Securities for
offering or sale in any jurisdiction, or of the initiation or threatening of any
proceedings for any of such purposes. The Company will promptly effect the
filings necessary pursuant to Rule 424(b) and will take such steps as it deems
necessary to ascertain promptly whether the form of prospectus transmitted for
filing under Rule 424(b) was received for filing by the Commission and, in the
event that it was not, it will promptly file such prospectus. The Company will
make every reasonable effort to prevent the issuance of any stop order and, if
any stop order is issued, to obtain the lifting thereof at the earliest possible
moment.
(b) Filing of Amendments. The Company will give the Representatives notice
of its intention to file or prepare any amendment to the Registration Statement
(including any filing under Rule 462(b)), any Term Sheet or any amendment,
supplement or revision to either the prospectus included in the Registration
Statement at the time it became effective or to the Prospectus, whether pursuant
to the 1933 Act, the 1934 Act or otherwise, will furnish the Representatives
with copies of any such documents a reasonable amount of time prior to such
proposed filing or use, as the case may be, and will not file or use any such
document to which the Representatives or counsel for the Underwriters shall
reasonably object.
(c) Delivery of Registration Statements. The Company has furnished, will
deliver or has made available, to the Representatives and counsel for the
Underwriters, without charge, signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith or incorporated by reference therein and documents incorporated or
deemed to be incorporated by reference therein) and signed copies of all
consents and certificates of experts, and will also deliver to the
Representatives or will also make available, without charge, a conformed copy of
the Registration Statement as originally filed and of each amendment thereto
(without exhibits) for each of the Underwriters. The copies of the Registration
Statement and each
15
amendment thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the 1933 Act. The Company will
furnish to each Underwriter, without charge, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, such
number of copies of the Prospectus (as amended or supplemented) as such
Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be identical to the
electronically transmitted copies thereof filed with the Commission pursuant to
▇▇▇▇▇, except to the extent permitted by Regulation S-T.
(e) Continued Compliance with Securities Laws. The Company will comply
with the 1933 Act and the 1933 Act Regulations and the 1934 Act and the 1934 Act
Regulations so as to permit the completion of the distribution of the Securities
as contemplated in this Agreement and in the Prospectus. If at any time when a
prospectus is required by the 1933 Act to be delivered in connection with sales
of the Securities, any event shall occur or condition shall exist as a result of
which it is necessary, in the reasonable opinion of counsel for the Underwriters
and for the Company, to amend the Registration Statement or amend or supplement
the Prospectus in order that the Prospectus will not include any untrue
statements of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary, in the opinion of such counsel, at any such time to amend
the Registration Statement or amend or supplement the Prospectus in order to
comply with the requirements of the 1933 Act or the 1933 Act Regulations, the
Company will promptly prepare and file with the Commission, subject to Section
3(b), such amendment or supplement as may be necessary to correct such statement
or omission or to make the Registration Statement or the Prospectus comply with
such requirements, and the Company will furnish to the Underwriters such number
of copies of such amendment or supplement as the Underwriters may reasonably
request.
(f) Blue Sky Qualifications. The Company will use its best efforts, in
cooperation with the Underwriters, to qualify the Securities for offering and
sale under the applicable securities laws of such states and other jurisdictions
(domestic or foreign) as the Representatives may designate and to maintain such
qualifications in effect for a period of not less than one year from the later
of the effective date of the Registration Statement and any Rule 462(b)
Registration Statement; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to
16
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified or to subject itself to taxation in
respect of doing business in any jurisdiction in which it is not otherwise so
subject. In each jurisdiction in which the Securities have been so qualified,
the Company will file such statements and reports as may be required by the laws
of such jurisdiction to continue such qualification in effect for a period of
not less than one year from the effective date of the Registration Statement and
any Rule 462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant to the
1934 Act as are necessary in order to make generally available to its
securityholders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the 1933 Act.
(h) Restriction on Sale of Securities. During a period of 90 days from the
date of the Prospectus, the Company will not, without the prior written consent
of ▇▇▇▇▇▇▇ ▇▇▇▇▇, directly or indirectly, (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase or otherwise transfer or
dispose of any share of Common Stock or any securities convertible into or
exercisable or exchangeable for Common Stock or file any registration statement
under the 1933 Act with respect to any of the foregoing or (ii) enter into any
swap or any other agreement or any transaction that transfers, in whole or in
part, directly or indirectly, the economic consequence of ownership of the
Common Stock, whether any such swap or transaction described in clause (i) or
(ii) above is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise. The foregoing sentence shall not apply to (A)
the Securities to be sold hereunder, (B) any shares of Common Stock issued by
the Company upon the exercise of an option or warrant or the conversion of a
security outstanding on the date hereof and referred to in the Prospectus, (C)
any shares of Common Stock issued or options to purchase Common Stock granted to
any existing or future employee of the Company, (D) any shares of Common Stock
issued pursuant to any non-employee director stock plan or dividend reinvestment
plan or (E) the registration of shares of Common Stock owned by any Selling
Stockholder pursuant to the Registration Rights Agreement, but only to the
extent that ▇▇▇▇▇▇▇ ▇▇▇▇▇ releases such Selling Stockholder from its obligations
under Section 1(b)(vi) hereunder.
(i) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the 1933 Act or the 1934 Act, will
file all documents required to be filed with the Commission pursuant to the 1934
Act within the time periods required by the 1934 Act and the 1934 Act
Regulations.
SECTION 4. Payment of Expenses.
-------------------
17
(a) Expenses. The Company will pay or cause to be paid all expenses
incident to the performance of its obligations under this Agreement, including
(i) the preparation, printing and filing of the Registration Statement
(including financial statements and exhibits) as originally filed and of each
amendment thereto, (ii) the preparation, printing and delivery to the
Underwriters of this Agreement, any Agreement among Underwriters and such other
documents as may be required in connection with the offering, purchase, sale or
delivery of the Securities, (iii) the preparation, issuance and delivery of the
certificates for the Securities to the Underwriters, (iv) the fees and
disbursements of the Company's counsel, accountants and other advisors, (v)
subject to receipt of documentation (such documentation to be sufficient for
this purpose if it is of a type customarily obtained by the Underwriters), the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(f) hereof, including filing fees and the reasonable fees
and disbursements of counsel for the Underwriters in connection therewith and in
connection with the preparation of the Blue Sky Survey and any supplement
thereto, (vi) the printing and delivery to the Underwriters of copies of each
preliminary prospectus, any Term Sheets and of the Prospectus and any amendments
or supplements thereto, (vii) the preparation, printing and delivery to the
Underwriters of copies of the Blue Sky Survey and any supplement thereto, (viii)
the fees and expenses of any transfer agent or registrar for the Securities,
(ix) subject to receipt of documentation (such documentation to be sufficient
for this purpose if it is of a type customarily obtained by the Underwriters),
the filing fees incident to, and the reasonable fees and disbursements of
counsel to the Underwriters in connection with, the review by the National
Association of Securities Dealers, Inc. (the "NASD") of the terms of the sale of
Securities, (x) the fees and expenses incurred in connection with the listing of
the Securities on the New York Stock Exchange and the Pacific Exchange and (xi)
the costs and expenses of the Company relating to investor presentations on any
"road show" undertaken in connection with the marketing of the offering of the
Securities, including, without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with the
prior approval of the Company, travel and lodging expenses of the
representatives and officers of the Company and any such consultants and the
cost of any aircraft chartered in connection with the road show.
(b) Expenses of the Selling Stockholders. Each Selling Stockholders will
pay its share of stamp duties, capital duties, and stock transfer taxes, if any,
attributable to the sale of the Securities to the Underwriters and their
transfer between the Underwriters pursuant to an agreement between such
Underwriters and its share of fees and disbursements of their counsel.
(c) Termination of Agreement. If this Agreement is terminated by the
Representatives in accordance with the provisions of Section 5, Section 9(a)(i)
or Section 11 hereof, the Company and the Selling Stockholders shall reimburse
the Underwriters
18
for all of their out-of-pocket expenses, including the reasonable fees and
disbursements of counsel for the Underwriters, subject to receipt of
documentation of such expenses (such documentation to be sufficient for this
purpose if it is of a type customarily obtained by the Underwriters).
(d) Allocation of Expenses. The provisions of this Section shall not
affect any agreement that the Company and the Selling Stockholders may make for
the sharing of such costs and expenses.
SECTION 5. Conditions of Underwriters' Obligations. The obligations of
---------------------------------------
the several Underwriters hereunder are subject to the accuracy of the
representations and warranties of the Company and the Selling Stockholders
contained in Section 1 hereof or in certificates of any officer of the Company
or any subsidiary of the Company or on behalf of any Selling Stockholder
delivered pursuant to the provisions hereof, to the performance by the Company
of its covenants and other obligations hereunder, and to the following further
conditions:
(a) Effectiveness of Registration Statement. The Registration Statement,
including any Rule 462(b) Registration Statement, has become effective and at
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the 1933 Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus containing
the Rule 430A Information shall have been filed with the Commission in
accordance with Rule 424(b) (or a post-effective amendment providing such
information shall have been filed and declared effective in accordance with the
requirements of Rule 430A) or, if the Company has elected to rely upon Rule 434,
a Term Sheet shall have been filed with the Commission in accordance with Rule
424(b).
(b) Opinion of Counsel for Company. At Closing Time, the Representatives
shall have received an opinion, dated as of Closing Time, of Skadden, Arps,
Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company, in form and substance
reasonably satisfactory to the Underwriters, together with signed or reproduced
copies of such letter for each of the other Underwriters to the effect set forth
in Exhibit A hereto and to such further effect as counsel to the Underwriters
may reasonably request.
(c) Opinion of In-House Counsel. At Closing Time, the Representatives
shall have received an opinion, dated as of Closing Time, of ▇▇▇▇▇ ▇. ▇▇▇▇▇,
Esq., Vice President, General Counsel and Secretary of the Company, in form and
substance reasonably satisfactory to the Underwriters, together with signed or
reproduced copies of
19
such letter for each of the other Underwriters to the effect set forth in
Exhibit B hereto and to such further effect as counsel to the Underwriters may
reasonably request.
(d) Opinion of Counsel for the Selling Stockholders. At Closing Time, the
Representatives shall have received an opinion, dated as of Closing Time, of
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Selling Stockholders, in form and substance
reasonably satisfactory to counsel for the Underwriters, together with signed or
reproduced copies of such letter for each of the other Underwriters to the
effect set forth in Exhibit C hereto.
(e) Opinion of Counsel for Underwriters. At Closing Time, the
Representatives shall have received the favorable opinion, dated as of Closing
Time, of Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters,
together with signed or reproduced copies of such letter for each of the other
Underwriters with respect to agreed upon matters. In giving such opinion such
counsel may rely, as to all matters governed by the laws of jurisdictions other
than the law of the State of New York and the federal law of the United States
and the General Corporation Law of the State of Delaware, upon the opinions of
counsel satisfactory to the Representatives. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and its
subsidiaries and certificates of public officials.
(f) Officers' Certificate. At Closing Time, there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Prospectus, any material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and the Representatives shall have
received a certificate of the President or a Vice President of the Company and
of the chief financial or chief accounting officer of the Company, dated as of
Closing Time, to the effect that (i) there has been no such material adverse
change, (ii) the representations and warranties in Section 1(a) hereof are true
and correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has complied with all agreements and satisfied
all conditions on its part to be performed or satisfied at or prior to Closing
Time, and (iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or are pending or, to their knowledge, are contemplated by the
Commission.
(g) Certificate of Selling Stockholders. At Closing Time, the
Representatives shall have received a certificate of each Selling Stockholder,
dated as of Closing Time, to the effect that (i) the representations and
warranties of each Selling Stockholder contained in Section 1(b) hereof are true
and correct in all respects with the same force and effect as though expressly
made at and as of Closing Time and (ii) each Selling
20
Stockholder has complied in all material respects with all agreements and all
conditions on its part to be performed under this Agreement at or prior to
Closing Time.
(h) Accountant's Comfort Letter. At the time of the execution of this
Agreement, the Representatives shall have received from each of
PricewaterhouseCoopers LLP and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a letter dated such date, in
form and substance satisfactory to the Representatives, together with signed or
reproduced copies of such letters for each of the other Underwriters containing
statements and information of the type ordinarily included in accountants'
"comfort letters" to underwriters with respect to the financial statements and
certain financial information contained in the Registration Statement and the
Prospectus.
(i) Bring-down Comfort Letter. At Closing Time, the Representatives shall
have received from each of PricewaterhouseCoopers LLP and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP a
letter, dated as of Closing Time, to the effect that they reaffirm the
statements made in their respective letters furnished pursuant to subsection (g)
of this Section, except that the specified date referred to shall be a date not
more than three business days prior to Closing Time.
(j) No Objection. The NASD has confirmed that it has not raised any
objection with respect to the fairness and reasonableness of the underwriting
terms and arrangements.
(k) Lock-up Agreements. At the date of this Agreement, the Representatives
shall have received an agreement substantially in the form of Exhibit D hereto
signed by the persons listed on Schedule E hereto.
(l) Conditions to Purchase of Option Securities. In the event that the
Underwriters exercise their option provided in Section 2(b) hereof to purchase
all or any portion of the Option Securities, the representations and warranties
of the Company and the Selling Stockholders contained herein and the statements
in any certificates furnished by the Company, any subsidiary of the Company and
the Selling Stockholders hereunder shall be true and correct as of each Date of
Delivery and, at the relevant Date of Delivery, the Representatives shall have
received:
(i) Officers' Certificate. A certificate, dated such Date of
---------------------
Delivery, of the President or a Vice President of the Company and of the
chief financial or chief accounting officer of the Company confirming that
the certificate delivered at the Closing Time pursuant to Section 5(e)
hereof remains true and correct as of such Date of Delivery.
(ii) Certificate of Selling Stockholders. A certificate, dated such
-----------------------------------
Date of Delivery, of each Selling Stockholder confirming that the
certificate delivered at
21
Closing Time pursuant to Section 5(f) remains true and correct as of
such Date of Delivery.
(iii) Opinion of Counsel for Company. An opinion of Skadden,
------------------------------
Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Company, in form and
substance reasonably satisfactory to the Underwriters, dated such Date
of Delivery, relating to the Option Securities to be purchased on such
Date of Delivery and otherwise to the same effect as the opinion
required by Section 5(b) hereof.
(iv) Opinion of In-House Counsel. An opinion of ▇▇▇▇▇ ▇.
---------------------------
Kraft, Esq., Vice President, General Counsel and Secretary of the
Company, in form and substance reasonably satisfactory to the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(c) hereof.
(v) Opinion of Counsel for the Selling Stockholders. An
-----------------------------------------------
opinion of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Selling Stockholders,
in form and substance reasonably satisfactory to counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(d) hereof.
(vi) Opinion of Counsel for Underwriters. The favorable
-----------------------------------
opinion of Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the
Underwriters, dated such Date of Delivery, relating to the Option
Securities to be purchased on such Date of Delivery and otherwise to
the same effect as the opinion required by Section 5(e) hereof.
(vii) Bring-down Comfort Letter. A letter from each of
-------------------------
PricewaterhouseCoopers LLP and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, in form and
substance satisfactory to the Representatives and dated such Date of
Delivery, substantially in the same form and substance as the letter
furnished to the Representatives pursuant to Section 5(h) hereof,
except that the "specified date" in the letter furnished pursuant to
this paragraph shall be a date not more than five days prior to such
Date of Delivery.
(m) Additional Documents. At Closing Time and at each Date of
Delivery counsel for the Underwriters shall have been furnished with such
documents and opinions as they may require for the purpose of enabling them to
pass upon the sale of the Securities as herein contemplated, or in order to
evidence the accuracy of any of the representations or warranties, or the
fulfillment of any of the conditions, herein contained; and all proceedings
taken by the Company and the Selling Stockholders at or prior to the Closing
Time or the Date of Delivery, as the case may be, in connection with the sale of
22
the Securities as herein contemplated shall be reasonably satisfactory in form
and substance to the Representatives and counsel for the Underwriters.
(n) Termination of Agreement. If any condition specified in this
Section shall not have been fulfilled when and as required to be fulfilled, this
Agreement, or, in the case of any condition to the purchase of Option Securities
on a Date of Delivery which is after the Closing Time, the obligations of the
several Underwriters to purchase the relevant Option Securities, may be
terminated by the Representatives by notice to the Company at any time at or
prior to Closing Time or such Date of Delivery, as the case may be, and such
termination shall be without liability of any party to any other party except as
provided in Section 4 and except that Sections 1, 6, 7 and 8 shall survive any
such termination and remain in full force and effect.
SECTION 6. Indemnification.
---------------
(a) Indemnification of Underwriters by the Company. The Company
agrees to indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act to the extent and in the manner set forth in clauses
(i), (ii) and (iii) as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of any untrue statement or
alleged untrue statement of a material fact contained in the
Registration Statement (or any amendment thereto), including the Rule
430A Information and the Rule 434 Information, if applicable, or the
omission or alleged omission therefrom of a material fact required to be
stated therein or necessary to make the statements therein not
misleading or arising out of any untrue statement or alleged untrue
statement of a material fact included in any preliminary prospectus or
the Prospectus (or any amendment or supplement thereto), or the omission
or alleged omission therefrom of a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever (which in the case of legal expenses, must be
reasonable), as incurred, to the extent of the aggregate amount paid in
settlement of any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based, in each case, upon any such untrue statement or
omission, or any such alleged untrue statement or omission; provided
that (subject to Section 6(e) below) any such settlement is effected
with the written consent of the Company; and
23
(iii) against any and all expense whatsoever, as incurred
(including, subject to Section 6(d), the fees and disbursements of
counsel chosen by ▇▇▇▇▇▇▇ ▇▇▇▇▇), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened,
or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
-------- -------
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in the Registration
Statement (or any amendment thereto), including the Rule 430A Information and
the Rule 434 Information, if applicable, or any preliminary prospectus or the
Prospectus (or any amendment or supplement thereto); provided, further that the
Company and the Selling Stockholders will not be liable to any Underwriter or
any person controlling such Underwriter with respect to any such untrue
statement or alleged untrue statement or omission or alleged omission made in
any preliminary prospectus to the extent that the Company and the Selling
Stockholder shall sustain the burden of proving that any such loss, liability,
claim, damage or expense resulted from the fact that the Underwriter sold
securities to a person to whom such Underwriter failed to send or give, at or
prior to the written confirmation of the sale of such securities, a copy of the
Prospectus (as amended or supplemented) if the Company has previously furnished
copies thereof to the Underwriter (sufficiently in advance of the Closing Time
to allow for distribution of the Prospectus in a timely manner) and complied
with their obligations hereunder and the loss, liability, claim, damage or
expense of the Underwriter resulted from an untrue statement or omission or
alleged untrue statement or omission of a material fact contained in or omitted
from such preliminary prospectus (as amended or supplemented) which was
corrected in the Prospectuses (as amended or supplemented).
Insofar as this indemnity agreement may permit indemnification
for liabilities under the 1933 Act of any person who is a partner of an
Underwriter or who controls an underwriter within the meaning of Section 15 of
the 1933 Act or Section 20 of the 1934 Act and who, at the date of this
Agreement, is a director or officer of the Company or controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act,
such indemnity agreement is subject to the undertaking of the Company in the
Registration Statement under "Undertakings" thereof.
(b) Indemnification of Underwriters by the Selling Stockholders.
Each Selling Stockholder, severally and not jointly (in the proportion that the
number of Securities being sold by such Selling Stockholder bears to the total
number of Securities and to the extent permitted by law), agrees to indemnify
and hold harmless each Underwriter and
24
each person, if any, who controls any Underwriter within the meaning of Section
15 of the 1933 Act or Section 20 of the 1934 Act, against any and all loss,
liability, claim, damage and expense described in the indemnity contained in
subsection (a) of this Section, as incurred, but only with respect to untrue
statements or omissions, or alleged untrue statements or omissions, made in the
Registration Statement (or any amendment thereto), including the Rule 430A
Information and the Rule 434 Information, if applicable, or any preliminary
prospectus or the Prospectus (or any amendment or supplement thereto) in
reliance upon and in conformity with written information furnished to the
Company by such Selling Stockholder expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary prospectus or the
Prospectus (or any amendment or supplement thereto). The liability of each
Selling Stockholder under this Section 6 shall be limited to an amount equal to
the net proceeds received by such Selling Stockholder (before deducting taxes
and expenses) from the offering of the Securities sold by such Selling
Stockholder.
(c) Indemnification of Company, Directors and Officers and Selling
Stockholders. Each Underwriter severally agrees to indemnify and hold harmless
the Company, its directors, each of its officers who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the 1933 Act or Section 20 of the 1934 Act, and each Selling
Stockholder and each person, if any, who controls any Selling Stockholder within
the meaning of Section 15 of the 1933 Act or Section 20 of the 1934 Act against
any and all loss, liability, claim, damage and expense described in the
indemnity contained in subsection (a) of this Section as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or
omissions, made in the Registration Statement (or any amendment thereto),
including the Rule 430A Information and the Rule 434 Information, if applicable,
or any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through ▇▇▇▇▇▇▇ ▇▇▇▇▇ expressly for use in
the Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
(d) Actions against Parties; Notification. Each indemnified party
shall give notice as promptly as reasonably practicable to each indemnifying
party of any action commenced against it in respect of which indemnity may be
sought hereunder, but failure to so notify an indemnifying party shall not
relieve such indemnifying party from any liability hereunder to the extent it is
not materially prejudiced as a result thereof and in any event shall not relieve
it from any liability which it may have otherwise than on account of this
indemnity agreement. If it so elects within a reasonable time after receipt of
such notice, upon providing notice thereof to the indemnified party, an
indemnifying party shall be entitled to participate in such action and, to the
extent that it shall wish, jointly with any other indemnifying parties receiving
the notice required under the first
25
sentence hereof, assume the defense of such action with counsel chosen by it
(provided that such counsel is approved, in their reasonable discretion, by the
indemnified parties who are defendants in such action) unless such indemnified
parties reasonably object to such assumption on the ground that there may be
legal defenses available to them that are different from or in addition to those
available to such indemnifying party. In the absence of such an election by an
indemnifying party within a reasonable period of time after receipt of such
notice to assume the defense of such an action or, in the event of a failure to
assume the defense of such action within a reasonable period of time, in the
case of parties indemnified pursuant to Sections 6(a) and 6(b) above, counsel to
the indemnified parties shall be selected by ▇▇▇▇▇▇▇ ▇▇▇▇▇, and, in the case of
parties indemnified pursuant to Section 6(c) above, counsel to the indemnified
parties shall be selected by the Company. If an indemnifying party assumes the
defense of such action, the indemnifying parties shall not be liable for any
fees and expenses of counsel for the indemnified parties incurred thereafter in
connection with such action. An indemnifying party may participate at its own
expense in the defense of any such action; provided, however, that counsel to
the indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. In no event shall the
indemnifying parties be liable for fees and expenses of more than one counsel
(in addition to any local counsel) separate from their own counsel for all
indemnified parties in connection with any one action or separate but similar or
related actions in the same jurisdiction arising out of the same general
allegations or circumstances. No indemnifying party shall, without the prior
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
any claim whatsoever in respect of which indemnification or contribution could
be sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of each
indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and (ii) does not include a statement as to
or an admission of fault, culpability or a failure to act by or on behalf of any
indemnified party.
(e) Settlement without Consent if Failure to Reimburse. Subject to
Section 6(d) and, in the case of the Selling Stockholders, the last sentence of
Section 6(b) if at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel, such indemnifying party agrees that it shall be liable for any
settlement of the nature contemplated by Section 6(a)(ii) effected without its
written consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement at
least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
26
(f) Other Agreements with Respect to Indemnification. The provisions
of this Section shall not affect any agreement among the Company and the Selling
Stockholders with respect to indemnification.
SECTION 7. Contribution. If the indemnification provided for in
------------
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages
and expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Selling Stockholders on the one hand and the Underwriters on the
other hand from the offering of the Securities pursuant to this Agreement or
(ii) if the allocation provided by clause (i) is not permitted by applicable
law, in such proportion as is appropriate to reflect not only the relative
benefits referred to in clause (i) above but also the relative fault of the
Company and the Selling Stockholders on the one hand and of the Underwriters on
the other hand in connection with the statements or omissions which resulted in
such losses, liabilities, claims, damages or expenses, as well as any other
relevant equitable considerations.
The relative benefits received by the Company and the Selling
Stockholders on the one hand and the Underwriters on the other hand in
connection with the offering of the Securities pursuant to this Agreement shall
be deemed to be in the same respective proportions as the total net proceeds
from the offering of the Securities pursuant to this Agreement (before deducting
expenses) received the Selling Stockholders and the total underwriting discount
received by the Underwriters, in each case as set forth on the cover of the
Prospectus, or, if Rule 434 is used, the corresponding location on the Term
Sheet bear to the aggregate initial public offering price of the Securities as
set forth on such cover.
The relative fault of the Company and the Selling Stockholders
on the one hand and the Underwriters on the other hand shall be determined by
reference to, among other things, whether any such untrue or alleged untrue
statement of a material fact or omission or alleged omission to state a material
fact relates to information supplied by the Company or the Selling Stockholders
or by the Underwriters and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company, the Selling Stockholders and the Underwriters agree
that it would not be just and equitable if contribution pursuant to this Section
7 were determined by pro rata allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation which does
not take account of the equitable considerations referred to above in this
Section 7. The aggregate amount of
27
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 7 shall be deemed to include any
legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged untrue
statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which the
total price at which the Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which such
Underwriter has otherwise been required to pay by reason of any such untrue or
alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the ▇▇▇▇ ▇▇▇) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who
controls an Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20 of the 1934 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, each Selling Stockholder and each director or
officer thereof, and each person, if any, who controls the Company or any
Selling Stockholder within the meaning of Section 15 of the 1933 Act or Section
20 of the 1934 Act shall have the same rights to contribution as the Company or
such Selling Stockholder, as the case may be. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in proportion
to the number of Initial Securities set forth opposite their respective names in
Schedule A hereto and not joint. The liability of each Selling Stockholder under
this Section 7 shall be limited to an amount equal to the net proceeds received
by such Selling Stockholder (before deducting taxes and expenses) from the
offering of the Securities sold by such Selling Stockholder pursuant to this
Agreement and no Selling Stockholder shall be required to contribute except to
the extent that such Selling Stockholder would have been liable to indemnify
under Section 6(b) if such indemnification were enforceable under applicable
law.
The provisions of this Section shall not affect any agreement
among the Company and the Selling Stockholders with respect to contribution.
SECTION 8. Representations, Warranties and Agreements to Survive
-----------------------------------------------------
Delivery. All representations, warranties and agreements contained in this
--------
Agreement or in certificates of officers of the Company or any of its
subsidiaries or the Selling Stockholders submitted pursuant hereto, shall remain
operative and in full force and
28
effect, regardless of any investigation made by or on behalf of any Underwriter
or controlling person, or by or on behalf of the Company or the Selling
Stockholders, and shall survive delivery of the Securities to the Underwriters.
SECTION 9. Termination of Agreement.
------------------------
(a) Termination; General. The Representatives may terminate this
Agreement, by notice to the Company and the Selling Stockholders, at any time at
or prior to Closing Time (i) if there has been, since the time of execution of
this Agreement or since the respective dates as of which information is given in
the Prospectus (exclusive of any supplement thereto), any material adverse
change in the condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of business, or
(ii) if there has occurred any material adverse change in the financial markets
in the United States or the international financial markets, any outbreak of
hostilities or escalation thereof or other calamity or crisis or any change or
development involving a prospective change in national or international
political, financial or economic conditions, in each case the effect of which is
such as to make it, in the judgment of the Representatives, impracticable or
inadvisable to market the Securities or to enforce contracts for the sale of the
Securities, or (iii) if trading in any securities of the Company has been
suspended or materially limited by the Commission or the New York Stock Exchange
or the Pacific Exchange, or if trading generally on the American Stock Exchange
or the New York Stock Exchange or in the Nasdaq National Market has been
suspended or materially limited, or minimum or maximum prices for trading have
been fixed, or maximum ranges for prices have been required, by any of said
exchanges or by such system or by order of the Commission, the National
Association of Securities Dealers, Inc. or any other governmental authority or a
material disruption has occurred in commercial banking or securities settlement
or clearance services in the United States, or (iv) if a banking moratorium has
been declared by either Federal or New York authorities.
(b) Liabilities. If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof, and provided further that Sections 1, 6,
7 and 8 shall survive such termination and remain in full force and effect.
SECTION 10. Default by One or More of the Underwriters. If one or more
------------------------------------------
of the Underwriters shall fail at Closing Time or a Date of Delivery to purchase
the Securities which it or they are obligated to purchase under this Agreement
(the "Defaulted Securities"), the Representatives shall have the right, within
24 hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other underwriters, to purchase all, but not less than all,
of the Defaulted Securities in such amounts as may be agreed upon and upon the
terms herein set forth; if, however, the
29
Representatives shall not have completed such arrangements within such 24-hour
period, then:
(a) if the number of Defaulted Securities does not exceed 10% of
the number of Securities to be purchased on such date, each of the
non-defaulting Underwriters shall be obligated, severally and not jointly,
to purchase the full amount thereof in the proportions that their
respective underwriting obligations hereunder bear to the underwriting
obligations of all non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the
number of Securities to be purchased on such date, this Agreement or, with
respect to any Date of Delivery which occurs after the Closing Time, the
obligation of the Underwriters to purchase and of the Company to sell the
Option Securities to be purchased and sold on such Date of Delivery shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement or, in the case of a Date of Delivery which is
after the Closing Time, which does not result in a termination of the obligation
of the Underwriters to purchase and the Selling Stockholders to sell the
relevant Option Securities, as the case may be, either (i) the Representatives
or (ii) the Selling Stockholders shall have the right to postpone the Closing
Time or the relevant Date of Delivery, as the case may be, for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements. As used
herein, the term "Underwriter" includes any person substituted for an
Underwriter under this Section 10.
SECTION 11. Default by one or more of the Selling Stockholders. If a
--------------------------------------------------
Selling Stockholder shall fail at Closing Time or at a Date of Delivery to sell
and deliver the number of Securities which such Selling Stockholder is obligated
to sell hereunder, and the remaining Selling Stockholder does not exercise the
right hereby granted to increase the number of Securities to be sold by it
hereunder to the total number to be sold by all Selling Stockholders as set
forth in Schedule B hereto, then the Underwriters may, at option of the
Representatives, by notice from the Representatives to the Company and the
non-defaulting Selling Stockholder, either (a) terminate this Agreement without
any liability on the fault of any non-defaulting party except that the
provisions of Sections 1, 4, 6, 7 and 8 shall remain in full force and effect or
(b) elect to purchase the Securities which the non-defaulting Selling
Stockholder has agreed to sell hereunder. No action
30
taken pursuant to this Section 11 shall relieve any Selling Stockholder so
defaulting from liability, if any, in respect of such default.
In the event of a default by any Selling Stockholder as referred to in
this Section 11, each of the Representatives, the Company and the non-defaulting
Selling Stockholder shall have the right to postpone Closing Time or Date of
Delivery for a period not exceeding seven days in order to effect any required
change in the Registration Statement or Prospectus or in any other documents or
arrangements.
SECTION 12. Notices. All notices and other communications hereunder
-------
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to the Representatives at North Tower, World
Financial Center, New York, New York 10281-1201, attention of ▇▇▇ ▇▇▇▇▇▇▇▇, with
a copy to Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇▇ ▇▇▇▇ Jacob; notices to the Company
shall be directed to it at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇, attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇, with a copy to Skadden, Arps, Slate, ▇▇▇▇▇▇▇
& ▇▇▇▇ LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇/▇▇/ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
attention of ▇▇▇▇▇ ▇. ▇▇▇▇; and notices to the Selling Stockholders shall be
directed to ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
attention of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, with a copy to ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, attention of ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇.
SECTION 13. Parties. This Agreement shall each inure to the benefit of
-------
and be binding upon the Underwriters, the Company and the Selling Stockholders
and their respective successors. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters, the Company and the Selling
Stockholders and their respective successors and the controlling persons and
officers and directors referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and
all conditions and provisions hereof are intended to be for the sole and
exclusive benefit of the Underwriters, the Company and the Selling Stockholders
and their respective successors, and said controlling persons and officers and
directors and their heirs and legal representatives, and for the benefit of no
other person, firm or corporation. No purchaser of Securities from any
Underwriter shall be deemed to be a successor by reason merely of such purchase.
SECTION 14. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED
----------------------
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK. SPECIFIED
TIMES OF DAY REFER TO NEW YORK CITY TIME.
31
SECTION 15. Effect of Headings. The Article and Section headings
------------------
herein and the Table of Contents are for convenience only and shall not affect
the construction hereof.
32
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to the Company and the Selling Stockholders a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement among the Underwriters, the Company and the Selling
Stockholders in accordance with its terms.
Very truly yours,
PLUM CREEK TIMBER COMPANY, INC.
By:____________________________________
Name:
Title:
PC ADVISORY PARTNERS I, L.P.
By: PC Advisory Corp. I, its general partner
By:_____________________________________
Name:
Title:
PCMC INTERMEDIATE HOLDINGS, L.P.
By: PC Advisory Partners I, L.P., its general
partner
By: PC Advisory Corp. I, its general partner
By:_____________________________________
Name:
Title:
33
CONFIRMED AND ACCEPTED,
as of the date first above written:
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇▇, SACHS & CO.
▇.▇. ▇▇▇▇▇▇▇▇ & CO.
By: ▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
By_______________________________________________
Authorized Signatory
For themselves and as Representatives of the other Underwriters named in
Schedule A hereto.
34
SCHEDULE A
Number of
Initial
Name of Underwriter Securities
------------------- ----------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated ............................. 2,475,050
▇▇▇▇▇▇▇, Sachs & Co .................................. 2,475,050
▇. ▇. ▇▇▇▇▇▇▇▇ & Co. ................................. 824,950
Credit Suisse First Boston Corporation ............... 824,950
▇▇▇▇▇▇ Brothers Inc. ................................. 225,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated .................... 225,000
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. ............................ 225,000
UBS Warburg LLC ...................................... 225,000
Total ................................................ 7,500,000
Sch A-1
SCHEDULE B
Number of Initial Maximum Number of Option
Securities to be Sold Securities to Be Sold
--------------------- ---------------------
PC Advisory Partners I,
L.P. 75,000 11,250
PCMC Intermediate Holdings,
L.P. 7,425,000 1,113,750
Total 7,500,000 1,125,000
Sch B-1
SCHEDULE C
Plum Creek Timber Company, Inc.
7,500,000 Shares of Common Stock
(Par Value $ .01 Per Share)
1. The initial public offering price per share for the Securities,
determined as provided in said Section 2, shall be $28.00.
2. The purchase price per share for the Securities to be paid by the
several Underwriters shall be $26.60, being an amount equal to the initial
public offering price set forth above less $1.40 per share; provided that the
purchase price per share for any Option Securities purchased upon the exercise
of the over-allotment option described in Section 2(b) shall be reduced by an
amount per share equal to any dividends or distributions declared by the Company
and payable on the Initial Securities but not payable on the Option Securities.
Sch C-1
SCHEDULE D
Directly Held
Plum Creek Timber I, L.L.C.
Plum Creek Timberlands, L.P. (99% limited partner interest)
Indirectly Held
Plum Creek Timberlands, L.P. (1% general partner interest)
Plum Creek Timber II, L.L.C.
Plum Creek Maine Timberlands, L.L.C.
Plum Creek Southern Timber, L.L.C.
Plum Creek South Central Timberlands, L.L.C.
Plum Creek Manufacturing, L.P.
Plum Creek Manufacturing Holding Company, Inc.
Plum Creek Northwest Lumber, Inc.
Plum Creek Northwest Plywood, Inc.
Plum Creek MDF, Inc.
Plum Creek Southern Lumber, Inc.
Plum Creek Marketing, Inc.
Plum Creek Investment Company
Plum Creek Land Company
Plum Creek Maine Marketing Inc.
Highland Resources Inc.
Sch D-1
SCHEDULE E
List of persons and entities subject to lock-up
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Sch E-1
Exhibit A
FORM OF OPINION OF COMPANY'S COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(b)
(i) The Company has been duly incorporated and is validly existing in
good standing under the laws of the State of Delaware.
(ii) The Company has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus.
(iii) The execution and delivery by the Company of the Purchase Agreement
and the consummation by the Company of the transactions contemplated thereby
will not conflict with the Certificate of Incorporation or the By-Laws. We do
not express any opinion, however, as to whether the execution, delivery or
performance by the Company of the Purchase Agreement will constitute a violation
of, or a default under, any covenant, restriction or provision with respect to
financial ratios or tests or any aspect of the financial condition or results of
operations of the Company or any of its subsidiaries.
(iv) The Securities have been duly authorized, validly issued and are
fully paid and non-assessable and were not issued in violation of any preemptive
rights or any similar rights arising under the Delaware General Corporation Law,
the Certificate of Incorporation or the By-Laws.
(v) The Purchase Agreement has been duly authorized, executed and
delivered by the Company.
(vi) Any required filing of the Prospectus pursuant to Rule 424(b) has
been made in the manner and within the time period required by Rule 424(b).
(vii) The Registration Statement and the Prospectus (excluding the
documents incorporated by reference therein), as of their respective effective
or issue dates, appeared on their face to be appropriately responsive in all
material respects to the requirements of the Securities Act and the Rules and
Regulations, except that in each case we do not express any opinion as to the
financial statements and schedules and other financial data included or
incorporated by reference therein or excluded therefrom, or the exhibits
thereto, and, except to the extent expressly stated in paragraph (x), we do not
assume any responsibility for
A-1
the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus.
(viii) Each of the Incorporated Documents, when it was filed, appeared on
its face to be appropriately responsive in all material respects with the
requirements of the Exchange Act and the applicable rules and regulations of the
Commission thereunder, except that we do not express any opinion as to the
financial statements and related notes and schedules and other financial data
included therein or omitted therefrom or the exhibits thereto.
(ix) The statements in the Prospectus under the caption "Federal Income
Taxation of Plum Creek and its Stockholders" and in the Registration Statement
under Item 15, in each case insofar as such statements purport to summarize
certain provisions of the laws referred to therein, fairly summarize such
provisions in all material respects.
(x) No Governmental Approval, which has not been obtained or taken and
is not in full force and effect, is required to authorize, or is required in
connection with, the due authorization, execution or delivery of Purchase
Agreement by the Company or the consummation by the Company of the transactions
contemplated thereby.
(xi) The Company is not an "investment company," as such term is defined
in the 1940 Act.
(xii) [This will be given in a separate opinion] Under current United
States Federal income tax law, commencing with the Company's taxable year ending
on December 31, 1999, the Company has been organized in conformity with the
requirements for qualification as a REIT under the Code, and the Company's
method of operation has enabled it to meet the requirements for qualification as
a REIT.
The Registration Statement, was declared effective under the Act at 3:30
p.m., on November 15, 2001, and we have been orally advised by the Commission
that no stop order suspending the effectiveness of the Registration Statement
has been issued and, to the best of our knowledge, no proceedings for that
purpose have been instituted or are pending or threatened by the Commission.
In addition, we have participated in conferences with officers and other
representatives of the Company, counsel for the Company, representatives of the
independent accountants of the Company and you and your counsel at which the
contents of the Registration Statement and the Prospectus and related matters
were discussed. We did not participate in the preparation of the Incorporated
A-2
Documents but have, however, reviewed such documents and discussed the business
and affairs of the Company with officers and other representatives of the
Company. Although we are not passing upon, and do not assume any responsibility
for, the accuracy, completeness or fairness of the statements contained in the
Registration Statement or the Prospectus and have made no independent check or
verification thereof (except to the limited extent referred to in paragraph (ix)
above), on the basis of the foregoing, no facts have come to our attention that
have led us to believe that the Registration Statement, at the time it became
effective, contained an untrue statement of a material fact or omitted to state
any material fact required to be stated therein or necessary to make the
statements therein not misleading or that the Prospectus, as of its date and as
of the date hereof, contained or contains an untrue statement of a material fact
or omitted or omits to state a material fact necessary in order to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except that we express no opinion or belief with respect to the
financial statements, schedules and other financial data included or
incorporated by reference therein or excluded therefrom or included in the
exhibits to the Registration Statement.
In such opinion, "Registration Statement" shall be defined to include all
amendments and supplements to the Registration Statement, the Rule 430A
Information, the Rule 434A Information and any Rule 462(b) Registration
Statement.
In rendering such opinion, such counsel may rely as to matters of fact (but
not as to legal conclusions), to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. Such opinion shall not
state that it is to be governed or qualified by, or that it is otherwise subject
to, any treatise, written policy or other document relating to legal opinions,
including, without limitation, the Legal Opinion Accord of the ABA Section of
Business Law (1991).
A-3
Exhibit B
FORM OF OPINION OF IN-HOUSE COUNSEL
TO BE DELIVERED PURSUANT TO SECTION 5(c)
The Underwriters shall have received on the Closing Date an opinion
of ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq., Vice President, General Counsel and Secretary of the
Company, dated the Closing Date, to the effect that:
(i) The Company is duly qualified as a foreign corporation to transact
business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
be in good standing would not result in a Material Adverse Effect.
(ii) Each Subsidiary has been duly incorporated or formed and is validly
or legally existing as a corporation, partnership or limited liability company
in good standing under the laws of the jurisdiction of its formation, is duly
qualified as a foreign corporation, partnership or limited liability company to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure so to qualify or
to be in good standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Registration Statement, all of the issued and
outstanding equity interests of each Subsidiary have been duly authorized and
validly issued, are fully paid and non-assessable and are free and clear of any
preemptive rights or any similar rights arising under the laws of their
respective jurisdiction of formation and, to the best of my knowledge, are owned
by the Company, directly or through subsidiaries, free and clear of all
consensual liens, encumbrances, equities or claims, other than liens to secure
indebtedness disclosed in the Prospectus.
(iii) All of the Company's shares of Common Stock have been duly authorized
and validly issued and are fully paid and non-assessable.
(iv) The statements in the Prospectus under the caption "Federal and State
Regulations," insofar as such statements purport to summarize certain provisions
of the laws referred to therein, fairly summarize certain provisions of the laws
referred to therein, fairly summarize such provisions in all material respects.
B-1
(v) Each of the Incorporated Documents, when it was filed, appeared on
its face to be appropriately responsive in all material respects with the
requirements of the Exchange Act and the applicable rules and regulations of the
Commission thereunder, except that I do not express any opinion as to the
financial statements and related notes and schedules and other financial data
included therein or omitted therefrom or the exhibits thereto.
(vi) To my knowledge, there are no legal or governmental proceedings
pending to which the Company is a party or to which any property of the Company
is subject that are required to be disclosed in the Prospectus pursuant to
Regulation S-K of the Rules and Regulations that are not so disclosed.
(vii) Except for such noncompliance with, or failure to receive or comply
with the terms of permits, licenses or other approvals required under,
applicable Environmental Laws that, individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect on the Company, or
except as otherwise set forth in the Prospectus, the Company and its
subsidiaries, taken as a whole (a) are in compliance with any and all applicable
Environmental Laws, (b) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their respective
businesses, and (c) are in compliance with all of the terms and conditions of
any such permit, license or approval.
(viii) To my knowledge, there are no statutes or regulations that are
required to be described in the Prospectus that are not described as required.
(ix) All descriptions in the Registration Statement of contracts and
other documents to which the Company or its subsidiaries are a party are
accurate in all material respects; to the best of my knowledge, there are no
franchises, contracts, indentures, mortgages, loan agreements, notes, leases or
other instruments required to be described or referred to in the Registration
Statement or to be filed as exhibits thereto other than those described or
referred to therein or filed or incorporated by reference as exhibits thereto,
and the descriptions thereof or references thereto are correct in all material
respects.
(x) To the best of my knowledge, (x) neither the Company nor any
subsidiary is in violation of its charter or by-laws, (y) no default by the
Company or any subsidiary exists in the due performance or observance of any
material obligation, agreement, covenant or condition contained in any
indenture, mortgage, loan agreement or note, and (z) no default by the Company
or any subsidiary exists in the due performance or observance of any material
obligation, agreement, covenant or condition contained in any contract, lease or
other
B-2
agreement or instrument that is described or referred to in the Registration
Statement or the Prospectus or filed or incorporated by reference as an exhibit
to the Registration Statement, except, in the case of this clause (z), as would
not have a material adverse effect on the Company.
(xi) The execution and delivery by the Company of the Purchase Agreement
and the performance by the Company of its obligations under the Purchase
Agreement, in accordance with its terms, (x) do not, whether with or without the
giving of notice or lapse of time or both (subject to the Company's compliance
with any applicable covenants, restrictions or provisions with respect to
financial ratios or tests or any aspect of the financial condition or results of
operations of the Company) conflict with or constitute a breach of, or default
or Repayment Event (as defined in Section 1(a)(xi) of the Purchase Agreement)
under or result in the creation or imposition of any lien, charge or encumbrance
upon any property or assets of the Company or any subsidiary pursuant to any
contract, indenture, mortgage, deed of trust, loan or credit agreement, note,
lease or any other agreement or instrument, known to me, to which the Company or
any subsidiary is a party or by which it or any of them may be bound, or to
which any of the property or assets of the Company or any subsidiary is subject
(except for such conflicts, breaches or defaults or liens, charges or
encumbrances that would not have a Material Adverse Effect), or (y) do not,
whether with or without the giving of notice or lapse of time or both, result in
any violation of the provisions of the charter or by-laws of the Company or any
subsidiary, or any applicable law, statute, rule, regulation, judgment, order,
writ or decree, known to us, of any government, government instrumentality or
court, domestic or foreign, having jurisdiction over the Company or any
subsidiary or any of their respective properties, assets or operations. I do not
express any opinion, however, as to the enforceability of the Purchase
Agreement. In addition, I do not express any opinion as to whether the
execution, delivery or performance by the Company of the Purchase Agreement will
constitute a violation of, or a default under, any covenant, restriction or
provision with respect to financial ratios or tests or any aspect of the
financial condition or results of operations of the Company or any of its
subsidiaries.
In addition, I or my staff have participated in conferences with officers
and other representatives of the Company, representatives of the independent
accountants of the Company, the Company's outside counsel and you and your
counsel at which the contents of the Registration Statement, any amendment
thereto and the Prospectus and related matters were discussed. Although I am not
passing upon, and do not assume any responsibility for, the accuracy,
completeness or fairness of the statements contained in the Registration
Statement, any amendment thereto or the Prospectus and have made no independent
check or
B-3
verification thereof (except to the limited extent referred to in paragraph (iv)
above), on the basis of the foregoing, no facts have come to my attention that
have led me to believe that the Registration Statement or any amendment thereto,
at the time each became effective, contained an untrue statement of a material
fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading or that the Prospectus,
as of its date and as of the date hereof, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in light of the circumstances
under which they were made, not misleading, except that I express no opinion or
belief with respect to the financial statements, schedules and other financial
data included or incorporated by reference therein or excluded therefrom or any
such financial statements, schedules and other financial data included in the
exhibits to the Registration Statement.
B-4
Exhibit C
FORM OF OPINION OF COUNSEL FOR THE SELLING STOCKHOLDERS
TO BE DELIVERED PURSUANT TO SECTION 5(d)
(i) The Purchase Agreement has been duly authorized, executed and
delivered by or on behalf of each Selling Stockholder.
(ii) No consent, approval, authorization or order of any court or
governmental agency or body is required for the consummation of the transactions
contemplated in the Purchase Agreement in connection with the Securities to be
sold by the Selling Stockholders thereunder, except such as have been obtained
under the Securities Act of 1933, as amended, or as may be required under the
state securities or Blue Sky laws of the various states in connection with the
purchase and distribution of the Securities by the Underwriters.
(iii) The sale of the Securities by each Selling Stockholder to the
Underwriters pursuant to the Purchase Agreement, and the performance by each
Selling Stockholder of its obligations under the Purchase Agreement, will not
violate the partnership agreement of such Selling Stockholder.
(iv) Good and valid title to such Securities, free and clear of all
liens, encumbrances, equities, security interests and claims, has been
transferred to each of the several Underwriters who have purchased such
Securities in good faith and without notice of any lien, encumbrance, equity or
claim or any other adverse claim within the meaning of the Uniform Commercial
Code.
The foregoing opinion is limited to the Federal securities laws of the
United States, and the laws of the State of California and the Revised Uniform
Limited Partnership Act of the State of Delaware, and we are expressing no
opinion as to the effect of the laws of any other jurisdiction.
In rendering the opinion expressed in paragraphs (iv) above, as to factual
matters with respect to liens, encumbrances, equities, security interests and
claims, we have relied exclusively on the representations of the Selling
Stockholders in the certificate attached hereto, without any independent
investigation. Also, we have assumed that the signatures on all documents
examined by us are genuine, assumptions which we have not independently
verified.
C-1
Form of lock-up from directors, officers or other stockholders pursuant to
Section 5(l)
Exhibit D
November _, 2001
▇▇▇▇▇▇▇ ▇▇▇▇▇ & CO.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated,
▇▇▇▇▇▇▇, SACHS & CO.
▇.▇. ▇▇▇▇▇▇▇▇ & CO.
as Representatives of the several
Underwriters to be named in the
within-mentioned Purchase Agreement
▇/▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇.
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Re: Proposed Public Offering by Plum Creek Timber Company, Inc.
-----------------------------------------------------------
Dear Sirs:
The undersigned, a stockholder and an officer and/or director of Plum
Creek Timber Company, Inc., a Delaware corporation (the "Company"), understands
that ▇▇▇▇▇▇▇ ▇▇▇▇▇ & Co., ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated
("▇▇▇▇▇▇▇ ▇▇▇▇▇"), ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. and D.A. Davidson propose to enter into
a Purchase Agreement (the "Purchase Agreement") with the Company and PC Advisory
Partners I, L.P. and PCMC Intermediate Holdings, L.P. providing for the public
offering of shares (the "Securities") of the Company's common stock, par value $
0.1 per share (the "Common Stock"). In recognition of the benefit that such an
offering will confer upon the undersigned as a stockholder and an officer and/or
director of the Company, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the undersigned agrees
with each underwriter to be named in the Purchase Agreement that, during a
period of 90 days from the date of the Purchase Agreement, the undersigned will
not, without the prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇, directly or indirectly,
(i) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant for the sale of,
D-1
or otherwise dispose of or transfer any shares of the Company's Common Stock or
any securities convertible into or exchangeable or exercisable for Common Stock,
whether now owned or hereafter acquired by the undersigned or with respect to
which the undersigned has or hereafter acquires the power of disposition, or
file any registration statement under the Securities Act of 1933, as amended,
with respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock, whether
any such swap or transaction described in clause (i) or (ii) above is to be
settled by delivery of Common Stock or other securities, in cash or otherwise.
Notwithstanding the foregoing, the undersigned may transfer the
undersigned's Securities (i) as a bona fide charitable gift or gifts, (ii) to
any trust for the direct or indirect benefit of the undersigned or the immediate
family of the undersigned, provided that the trustee of the trust agrees to be
bound in writing by the restrictions set forth herein, and provided further that
any such transfer shall not involve a disposition for value, or (iii) with the
prior written consent of ▇▇▇▇▇▇▇ ▇▇▇▇▇ on behalf of the Underwriters. For
purposes of this Lock-Up Agreement, "immediate family" shall mean any
relationship by blood, marriage or adoption, not more remote than first cousin.
Very truly yours,
Signature:_________________________________
Print Name:________________________________
D-2