Exhibit 4.2
POTLATCH CORPORATION
6.25% Notes due March 15, 2002
REGISTRATION RIGHTS AGREEMENT
New York, New York
March 15, 1999
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
Seven ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
Potlatch Corporation, a corporation organized under the laws of
Delaware (the "Company"), proposes to issue and sell to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
Inc. (the "Initial Purchaser" or "you"), upon the terms set forth in a purchase
agreement of even date herewith (the "Purchase Agreement"), its 6.25 % Notes due
March 15, 2002 (the "Securities") relating to the initial placement of the
Securities (the "Initial Placement"). To induce you to enter into the Purchase
Agreement and to satisfy a condition of your obligations thereunder, the Company
agrees with you for your benefit and the benefit of the holders from time to
time of the Securities (including the Initial Purchaser) (each a "Holder" and,
together, the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition
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shall have their respective meanings set forth in the Purchase Agreement. As
used in this Agreement, the following capitalized defined terms shall have the
following meanings:
"Act" shall mean the Securities Act of 1933, as amended, and the rules
and regulations of the Commission promulgated thereunder.
"Affiliate" of any specified Person shall mean any other Person that,
directly or indirectly, is in control of, is controlled by, or is under common
control with, such specified Person. For purposes of this definition, control
of a Person shall mean the power, direct or indirect, to direct or cause the
direction of the management and policies of such Person whether by contract or
otherwise; and the terms "controlling" and "controlled" shall have meanings
correlative to the foregoing.
"Broker-Dealer" shall mean any broker or dealer registered as such
under the Exchange Act.
"Business Day" shall mean any day other than a Saturday, a Sunday or a
legal holiday or a day on which banking institutions or trust companies are
authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated thereunder.
"Exchange Offer Registration Period" shall mean the 180 day period
following the consummation of the Registered Exchange Offer, exclusive of any
period during which any stop order shall be in effect suspending the
effectiveness of the Exchange Offer Registration Statement.
"Exchange Offer Registration Statement" shall mean a registration
statement of the Company on an appropriate form under the Act with respect to
the Registered Exchange Offer, all amendments and supplements to such
registration statement, including post-effective amendments thereto, in each
case including the Prospectus contained therein, all exhibits thereto and all
material incorporated by reference therein.
"Exchange Securities" shall mean debt securities of the Company
identical in all material respects to the Securities (except that the transfer
restrictions shall be modified or eliminated, as appropriate) and to be issued
under the Indenture or the Exchange Securities Indenture.
"Exchange Securities Indenture" shall mean an indenture between the
Company and the Exchange Securities Trustee, identical in all material respects
to the Indenture.
"Exchange Securities Trustee" shall mean a bank or trust company
reasonably satisfactory to the Initial Purchaser, as trustee with respect to the
Exchange Securities under the Exchange Securities Indenture.
"Exchanging Dealer" shall mean any Holder (which may include the
Initial Purchaser) that is a Broker-Dealer and elects to exchange for Exchange
Securities any Securities that it acquired for its own account as a result of
market-making activities or other trading activities (but not directly from the
Company or any Affiliate of the Company) for Exchange Securities.
"Holder" shall have the meaning set forth in the preamble hereto.
"Indenture" shall mean the Indenture relating to the Securities, dated
as of March __, 1999, between the Company and U.S. Bank Trust National
Association, as trustee, as the same may be amended from time to time in
accordance with the terms thereof.
"Initial Placement" shall have the meaning set forth in the preamble
hereto.
"Initial Purchaser" shall have the meaning set forth in the preamble
hereto.
"Liquidated Damages" shall have the meaning set forth in Section 17(a)
hereof.
"Losses" shall have the meaning set forth in Section 6(d) hereof.
"Majority Holders" shall mean the Holders of a majority of the
aggregate principal amount of Securities registered under a Registration
Statement.
"Managing Underwriters" shall mean the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering.
"Offering Circular" shall have the meaning set forth in the Purchase
Agreement.
"Prospectus" shall mean the prospectus included in any Registration
Statement (including, without limitation, a prospectus that discloses
information previously omitted from a prospectus filed as part of an effective
registration statement in reliance upon Rule 430A under the Act), as amended or
supplemented by any prospectus supplement, with respect to the terms of the
offering of
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any portion of the Securities or the Exchange Securities covered by such
Registration Statement, and all amendments and supplements thereto and all
material incorporated by reference therein
"Purchase Agreement" shall have the meaning set forth in the preamble
hereto.
"Registered Exchange Offer" shall mean the proposed offer of the
Company to issue and deliver to the Holders of the Securities that are not
prohibited by any law or policy of the Commission from participating in such
offer, in exchange for the Securities, a like aggregate principal amount of the
Exchange Securities.
"Registration Statement" shall mean any Exchange Offer Registration
Statement or Shelf Registration Statement that covers any of the Securities or
the Exchange Securities pursuant to the provisions of this Agreement, any
amendments and supplements to such registration statement, including post-
effective amendments (in each case including the Prospectus contained therein),
all exhibits thereto and all material incorporated by reference therein.
"Securities" shall have the meaning set forth in the preamble hereto.
"Shelf Registration" shall mean a registration effected pursuant to
Section 3 hereof.
"Shelf Registration Period" has the meaning set forth in Section 3(b)
hereof.
"Shelf Registration Statement" shall mean a "shelf" registration
statement of the Company pursuant to the provisions of Section 3 hereof which
covers some or all of the Securities or Exchange Securities, as applicable, on
an appropriate form under Rule 415 under the Act, or any similar rule that may
be adopted by the Commission, amendments and supplements to such registration
statement, including post-effective amendments, in each case including the
Prospectus contained therein, all exhibits thereto and all material incorporated
by reference therein.
"Time of Delivery" has the meaning set forth in the Purchase
Agreement.
"Trustee" shall mean the trustee with respect to the Securities under
the Indenture.
"underwriter" shall mean any underwriter of Securities in connection
with an offering thereof under a Shelf Registration Statement.
2. Registered Exchange Offer. (a) The Company shall prepare and
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file with the Commission the Exchange Offer Registration Statement with respect
to the Registered Exchange Offer. The Company shall use its reasonable efforts
to cause the Exchange Offer Registration Statement to become effective under the
Act within 180 days of the Time of Delivery (or if such 180th day is not a
Business Day, the next succeeding Business Day).
(b) Upon the effectiveness of the Exchange Offer Registration
Statement, the Company shall promptly commence the Registered Exchange
Offer, it being the objective of such Registered Exchange Offer to enable
each Holder electing to exchange Securities for Exchange Securities
(assuming that such Holder is not an Affiliate of the Company, acquires the
Exchange Securities in the ordinary course of such Holder's business, has
no arrangements with any Person to participate in the distribution of the
Exchange Securities and is not prohibited by any law or policy of the
Commission from participating in the Registered Exchange Offer) to trade
such Exchange Securities from and after their receipt without any
limitations or restrictions under the
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Act and without material restrictions under the securities laws of a
substantial proportion of the several states of the United States.
(c) In connection with the Registered Exchange Offer, the Company
shall:
(i) mail to each Holder a copy of the Prospectus forming part
of the Exchange Offer Registration Statement, together with an
appropriate letter of transmittal and related documents;
(ii) keep the Registered Exchange Offer open for not less than
30 calendar days after the date notice thereof is mailed to the
Holders (or longer if required by applicable law);
(iii) use its reasonable efforts to keep the Exchange Offer
Registration Statement continuously effective under the Act, and
supplemented and amended as required under the Act, to ensure that it
is available for sales of Exchange Securities by Exchanging Dealers
during the Exchange Offer Registration Period;
(iv) utilize the services of a depositary for the Registered
Exchange Offer with an address in the Borough of Manhattan in New York
City, which may be the Trustee, the Exchange Securities Trustee or an
Affiliate of either of them;
(v) permit Holders to withdraw tendered Securities at any time
prior to the close of business, New York time, on the last Business
Day on which the Registered Exchange Offer is open; and
(vi) comply in all material respects with all applicable laws.
(d) As soon as practicable after the close of the Registered Exchange
Offer, the Company shall:
(i) accept for exchange all Securities tendered and not validly
withdrawn pursuant to the Registered Exchange Offer;
(ii) deliver to the Trustee for cancellation all Securities so
accepted for exchange; and
(iii) cause the Exchange Securities Trustee promptly to
authenticate and deliver to each Holder of Securities a principal
amount of Exchange Securities equal to the principal amount of the
Securities of such Holder so accepted for exchange.
(e) Each Holder hereby acknowledges and agrees that any Broker-Dealer
and any such Holder using the Registered Exchange Offer to participate in a
distribution of the Exchange Securities (x) could not under Commission
policy as in effect on the date of this Agreement rely on the position of
the Commission in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and Co., Inc. (pub. avail. June 5, 1991)
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and Exxon Capital Holdings Corporation (pub. avail. May 13, 1988), as
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interpreted in the Commission's letter to Shearman & Sterling dated July 2,
1993 and similar no-action letters; and (y) must comply with the
registration and prospectus delivery requirements of the Act in connection
with any secondary resale transaction and that any such resale transaction
must be covered by an effective registration statement containing the
selling security holder information required by Item 507 or 508, as
applicable, of Regulation S-K under the Act if the resales are of
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Exchange Securities obtained by such Holder in exchange for Securities
acquired by such Holder directly from the Company or one of its Affiliates.
Accordingly, each Holder participating in the Registered Exchange Offer
shall be required to represent to the Company that, at the time of the
consummation of the Registered Exchange Offer:
(i) any Exchange Securities received by such Holder were
acquired in the ordinary course of business;
(ii) such Holder has not engaged in, does not intend to engage
in, and has no arrangement or understanding with any Person to
participate in, the distribution of the Securities or the Exchange
Securities within the meaning of the Act;
(iii) if such Holder is a Broker-Dealer that will receive
Exchange Securities for its own account in exchange for Securities,
the Securities to be exchanged for Exchange Securities were acquired
by it as a result of market-making activities or other trading
activities; and
(iii) such Holder is not an Affiliate of the Company.
(f) If the Initial Purchaser determines that it is not eligible to
participate in the Registered Exchange Offer with respect to the exchange
of Securities constituting any portion of an unsold allotment, at the
request of the Initial Purchaser, the Company shall issue and deliver to
the Initial Purchaser or the Person purchasing Exchange Securities
registered under a Shelf Registration Statement as contemplated by Section
3 hereof from such Initial Purchaser, in exchange for such Securities, a
like principal amount of Exchange Securities, and the Company shall,
starting on the date of effectiveness of the Exchange Offer Registration
Statement and ending on the close of business on the 180th day following
such date, make available as many copies of the Exchange Offer Registration
Statement prospectus, as amended or supplemented, as reasonably requested
by the Initial Purchaser. The Company shall use its reasonable efforts to
cause the CUSIP Service Bureau to issue the same CUSIP number for such
Exchange Securities as for Exchange Securities issued pursuant to the
Registered Exchange Offer. The Initial Purchaser agrees to promptly notify
the Company in writing following the resale of its initial allotment of
Offered Securities.
3. Shelf Registration. (a) If (i) due to any change in law or
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applicable interpretations thereof by the Commission's staff, the Company
determines upon advice of its outside counsel that it is not permitted to effect
the Registered Exchange Offer as contemplated by Section 2 hereof; or (ii) for
any other reason the Registered Exchange Offer is not consummated within 225
days of the Time of Delivery; or (iii) in the case of any Holder that
participates in the Registered Exchange Offer, such Holder does not receive
freely tradeable Exchange Securities on the date of the exchange (other than due
solely to the status of such Holder as an Affiliate of the Company or as a
broker-dealer) (it being understood that, for purposes of this Section 3, (x)
the requirement that an Initial Purchaser deliver a Prospectus containing the
information required by Item 507 or 508 of Regulation S-K under the Act in
connection with sales of Exchange Securities acquired in exchange for such
Securities shall result in such Exchange Securities being not "freely
tradeable"; but (y) the requirement that an Exchanging Dealer deliver a
Prospectus in connection with sales of Exchange Securities acquired in the
Registered Exchange Offer in exchange for Securities acquired as a result of
market-making activities or other trading activities shall not result in such
Exchange Securities being not "freely tradeable"), the Company
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shall promptly deliver to the Holders written notice thereof and shall effect a
Shelf Registration Statement in accordance with subsection (b) below.
(b) (i) The Company shall as promptly as practicable file with the
Commission and thereafter shall use its reasonable efforts to cause to be
declared effective under the Act a Shelf Registration Statement relating to
the offer and sale of the Securities or the Exchange Securities, as
applicable, by the Holders thereof from time to time in accordance with the
methods of distribution elected by such Holders and set forth in such Shelf
Registration Statement; provided, however, that with respect to Exchange
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Securities received by the Initial Purchaser in exchange for Securities
constituting any portion of an unsold allotment, the Company may, if
permitted by current interpretations by the Commission's staff, file a
post-effective amendment to the Exchange Offer Registration Statement
containing the information required by Item 507 or 508 of Regulation S-K,
as applicable, in satisfaction of its obligations under this subsection
with respect thereto, and any such Exchange Offer Registration Statement,
as so amended, shall be referred to herein as, and governed by the
provisions herein applicable to, a Shelf Registration Statement.
(ii) The Company shall use its reasonable efforts to keep the
Shelf Registration Statement continuously effective, supplemented and
amended as required by the Act, in order to permit the Prospectus forming
part thereof to be usable by Holders for a period of two years (or, if Rule
144(k) is amended to provide a shorter restrictive period, such shorter
period) from the date the Shelf Registration Statement is declared
effective by the Commission or such shorter period that will terminate when
all the Securities or Exchange Securities, as applicable, covered by the
Shelf Registration Statement have been sold pursuant to the Shelf
Registration Statement (in any such case, such period being called the
"Shelf Registration Period"). The Company shall be deemed not to have used
its best efforts to keep the Shelf Registration Statement effective during
the requisite period if it voluntarily takes any action that would result
in Holders of Securities covered thereby not being able to offer and sell
such Securities during that period, unless (A) such action is required by
applicable law; or (B) such action is taken by the Company in good faith
and for valid business reasons (not including avoidance of the Company's
obligations hereunder), including the acquisition or divestiture of assets,
so long as the Company promptly thereafter complies with the requirements
of Section 4(k) hereof, if applicable.
4. Additional Registration Procedures. In connection with any
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Shelf Registration Statement and, to the extent applicable, any Exchange Offer
Registration Statement, the following provisions shall apply.
(a) The Company shall:
(i) furnish to you a copy of any Exchange Offer
Registration Statement and any Shelf Registration Statement, and each
amendment thereof and each amendment or supplement, if any, to the
Prospectus included therein (including all documents incorporated by
reference therein after the initial filing) a reasonable time prior to
the filing thereof with the Commission to permit you to comment
thereon, and shall use its best efforts to reflect in each such
document, when so filed with the Commission, such comments as you
reasonably propose;
(ii) include the information set forth in Annex A hereto
on the facing page of the Exchange Offer Registration Statement, in
Annex B hereto in the forepart of the
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Exchange Offer Registration Statement in a section setting forth
details of the Exchange Offer, in Annex C hereto in the underwriting
or plan of distribution section of the Prospectus contained in the
Exchange Offer Registration Statement, and in Annex D hereto in the
letter of transmittal delivered pursuant to the Registered Exchange
Offer;
(iii) if requested by the Initial Purchaser, include the
information required by Item 507 or 508 of Regulation S-K, as
applicable, in the Prospectus contained in the Exchange Offer
Registration Statement; and
(iv) in the case of a Shelf Registration Statement, include the
names of the Holders that propose to sell Securities pursuant to the
Shelf Registration Statement as selling security holders.
(b) The Company shall ensure that, subject to Section 4(k):
(i) any Registration Statement and any amendment thereto and
any Prospectus forming part thereof and any amendment or supplement
thereto complies in all material respects with the Act and the rules
and regulations thereunder;
(ii) any Registration Statement and any amendment thereto does
not, when it becomes effective, 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;
and
(iii) any Prospectus forming part of any Registration Statement,
and any amendment or supplement to such Prospectus, does not, during
the period when delivery thereof is required, include an untrue
statement of a material fact or omit to state a material fact
necessary in order to make the statements, in the light of the
circumstances under which they were made, not misleading.
(c) The Company shall advise you, the Holders of Securities covered
by any Shelf Registration Statement and (in the case of clauses (iii) - (v)
hereof) any Exchanging Dealer under any Exchange Offer Registration
Statement that has provided in writing to the Company a telephone or
facsimile number and address for notices, and, if requested by you or any
such Holder or Exchanging Dealer, shall confirm such advice in writing
(which notice pursuant to clauses (ii)-(v) hereof shall be accompanied by
an instruction to suspend the use of the Prospectus until the Company shall
have remedied the basis for such suspension):
(i) when a Registration Statement and any amendment thereto has
been filed with the Commission and when the Registration Statement or
any post-effective amendment thereto has become effective;
(ii) of any request by the Commission for any amendment or
supplement to the Registration Statement or the Prospectus or for
additional information;
(iii) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose;
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(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities
included therein for sale in any jurisdiction or the initiation of any
proceeding for such purpose; and
(v) of the happening of any event that requires any change in
the Registration Statement or the Prospectus so that, as of such date,
the statements therein are not misleading and do not omit to state a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in the light of the
circumstances under which they were made) not misleading.
(d) The Company shall use its reasonable efforts to prevent the
issuance of or obtain the withdrawal of any order suspending the
effectiveness of any Registration Statement at the earliest possible time.
(e) The Company shall furnish to each Holder of Securities covered by
any Shelf Registration Statement, without charge, at least one copy of such
Shelf Registration Statement and any post-effective amendment thereto,
including financial statements and schedules and all material incorporated
therein by reference, and, if the Holder so requests in writing, all
exhibits thereto (including exhibits incorporated by reference therein).
(f) The Company shall, during the Shelf Registration Period, deliver
to each Holder of Securities covered by any Shelf Registration Statement,
without charge, as many copies of the Prospectus (including each
preliminary Prospectus) included in such Shelf Registration Statement and
any amendment or supplement thereto as such Holder may reasonably request.
Subject to Section 4(k) below, the Company consents to the use of the
Prospectus or any amendment or supplement thereto as to which no notice has
been given pursuant to Section 4(c) by each of the selling Holders of
securities in connection with the offering and sale of the securities
covered by the Prospectus, or any amendment or supplement thereto, included
in the Shelf Registration Statement.
(g) The Company shall furnish to each Exchanging Dealer which so
requests, without charge, at least one copy of the Exchange Offer
Registration Statement and any post-effective amendment thereto, including
financial statements and schedules and all material incorporated by
reference therein, and, if the Exchanging Dealer so requests in writing,
all exhibits thereto (including exhibits incorporated by reference
therein).
(h) The Company shall, during the Exchange Offer Registration Period,
promptly deliver to the Initial Purchaser and each Exchanging Dealer,
without charge, as many copies of the Prospectus included in such Exchange
Offer Registration Statement and any amendment or supplement thereto as any
such Person may reasonably request. Subject to Section 4(k) below, the
Company consents to the use of the Prospectus or any amendment or
supplement thereto as to which no notice has been given pursuant to Section
4(c) by the Initial Purchaser and any Exchanging Dealer in connection with
the offering and sale of the Exchange Securities covered by the Prospectus,
or any amendment or supplement thereto, included in the Exchange Offer
Registration Statement.
(i) Prior to the Registered Exchange Offer or any other offering of
Securities pursuant to any Registration Statement, the Company shall, if
required by applicable law, register or qualify or cooperate with the
Holders of Securities included therein and their respective counsel in
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connection with the registration or qualification of the Securities or the
Exchange Securities for sale under the laws of such jurisdictions as any
Holder shall reasonably request and will use its best efforts to maintain
such qualification in effect so long as required; provided that in no event
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shall the Company be obligated to qualify to do business or as a dealer in
securities in any jurisdiction where it is not then so qualified or to take
any action that would subject it to taxation or service of process in
suits, other than those arising out of the Initial Placement, the
Registered Exchange Offer or any offering pursuant to a Shelf Registration
Statement, in any such jurisdiction where it is not then so subject.
(j) Unless the applicable Securities shall be in book-entry only form,
the Company shall cooperate with the Holders of Securities to facilitate
the timely preparation and delivery of certificates representing Exchange
Securities or Securities to be issued or sold pursuant to any Registration
Statement free of any restrictive legends and in such denominations and
registered in such names as Holders may request.
(k) Upon the occurrence of any event contemplated by subsections
(c)(ii) through (v) above, the Company shall promptly prepare a post-
effective amendment to the applicable Registration Statement or an
amendment or supplement to the related Prospectus or file any other
required document so that, as thereafter delivered to Initial Purchaser of
the securities included therein, the Prospectus will not include an untrue
statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under
which they were made, not misleading, and the Initial Purchaser, and in the
case of a Shelf Registration Statement, the Holders of the securities
covered thereby, shall suspend use of such Prospectus until the Company has
amended or supplemented such Prospectus so that such Prospectus does not
contain any such untrue statement or omission. In such circumstances, the
period of effectiveness of the Exchange Offer Registration Statement
provided for in Section 2 and the Shelf Registration Statement provided for
in Section 3(b) shall each be extended by the number of days from and
including the date of the giving of a notice of suspension pursuant to
Section 4(c) to and including the date when the Initial Purchaser, the
Holders of the Securities and any known Exchanging Dealer shall have
received such amended or supplemented Prospectus pursuant to this Section.
(l) The Company shall use its reasonable efforts to cause The
Depository Trust Company ("DTC") on the first Business Day following the
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effective date of any Shelf Registration Statement hereunder or as soon as
possible thereafter to remove (i) from the existing CUSIP number assigned
to the Securities, any designation indicating that such Offered Securities
are "restricted securities," which efforts shall include delivery to DTC of
a letter executed by the Company substantially in the form of Annex E
hereto and (ii) any other stop or restriction on DTC's system with respect
to the Securities. In the event the Company is unable to cause DTC to take
the actions described in the immediately preceding sentence, the Company
shall take such actions as the Initial Purchasers may reasonably request to
provide, as soon as practicable, a CUSIP number for the Securities
registered under such Registration Statement and to cause such CUSIP
numbers to be assigned to such Securities (or to the maximum aggregate
principal amount of such Securities to which such number(s) may be
assigned). Upon compliance with the foregoing requirements of this Section
4(l), the Company shall provide the Trustee with printed certificates for
the Securities, in a form eligible for deposit with DTC.
(m) The Company shall comply with all applicable rules and
regulations of the Commission and shall make generally available to its
security holders as soon as practicable
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after the effective date of the applicable Registration Statement an
earnings statement satisfying the provisions of Section 11(a) of the Act.
(n) The Company shall cause the Indenture or the Exchange Securities
Indenture, as the case may be, to be qualified under the Trust Indenture
Act in a timely manner.
(o) The Company may require each Holder of securities to be sold
pursuant to any Shelf Registration Statement to furnish to the Company such
information regarding the Holder and the distribution of such securities as
the Company may from time to time reasonably require for inclusion in such
Registration Statement. The Company may exclude from such Shelf
Registration Statement the Securities of any Holder that unreasonably fails
to furnish such information within a reasonable time after receiving such
request.
(p) In the case of any Shelf Registration Statement, the Company
shall enter into such customary agreements and take all other appropriate
actions (including if requested an underwriting agreement in customary
form) in order to expedite or facilitate the registration or the
disposition of the Securities, and in connection therewith, if an
underwriting agreement is entered into, cause the same to contain
indemnification provisions and procedures no less favorable than those set
forth in Section 6 hereof (or such other provisions and procedures
acceptable to the Majority Holders and the Managing Underwriters, if any),
with respect to all parties to be indemnified pursuant to Section 6 hereof.
(q) In the case of any Shelf Registration Statement, the Company
shall:
(i) make reasonably available for inspection by the Holders
of Securities to be registered thereunder, any underwriter
participating in any disposition pursuant to such Registration
Statement, and any attorney, accountant or other agent retained by the
Holders or any such underwriter all relevant financial and other
records, pertinent corporate documents and properties of the Company
and its subsidiaries;
(ii) cause the Company's officers, directors and employees to
supply all relevant information reasonably requested by the Holders or
any such underwriter, attorney, accountant or agent in connection with
any such Registration Statement as is customary for similar due
diligence examinations; provided, however, that any information that
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is designated in writing by the Company, in good faith, as
confidential at the time of delivery of such information shall be kept
confidential by the Holders or any such underwriter, attorney,
accountant or agent, unless such disclosure is made in connection with
a court proceeding or required by law after notice has been given to
the Company of such pending disclosure and a reasonable opportunity
has been provided, where reasonably possible, for the Company to
obtain an appropriate protective order for the information to be
disclosed, or such information becomes available to the public
generally or through a third party without an accompanying obligation
of confidentiality;
(iii) make such representations and warranties to the Holders
of Securities registered thereunder and the underwriters, if any, in
form, substance and scope as are customarily made by issuers to
underwriters in primary underwritten offerings and covering matters
including, but not limited to, those set forth in the Purchase
Agreement;
(iv) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to
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the Managing Underwriters, if any) addressed to each selling Holder
and the underwriters, if any, covering such matters as are customarily
covered in opinions requested in underwritten offerings and such other
matters as may be reasonably requested by such Holders and
underwriters;
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to each
selling Holder of Securities registered thereunder and the
underwriters, if any, in customary form and covering matters of the
type customarily covered in "cold comfort" letters in connection with
primary underwritten offerings; and
(vi) deliver such documents and certificates as may be reasonably
requested by the Majority Holders and the Managing Underwriters, if
any, including those to evidence compliance with Section 4(k) and with
any customary conditions contained in the underwriting agreement or
other agreement entered into by the Company.
The actions set forth in clauses (iii), (iv), (v) and (vi) of this
Section 4(q) shall be performed at (A) the effectiveness of such Registration
Statement and each post-effective amendment thereto; and (B) each closing under
any underwriting or similar agreement as and to the extent required thereunder.
(r) In the case of any Exchange Offer Registration Statement, the
Company shall:
(i) make reasonably available for inspection by the Initial
Purchaser, and any attorney, accountant or other agent retained by the
Initial Purchaser, all relevant financial and other records, pertinent
corporate documents and properties of the Company and its
subsidiaries;
(ii) cause the Company's officers, directors and employees to
supply all relevant information reasonably requested by the Initial
Purchaser or any such attorney, accountant or agent in connection with
any such Registration Statement as is customary for similar due
diligence examinations; provided, however, that any information that
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is designated in writing by the Company, in good faith, as
confidential at the time of delivery of such information shall be kept
confidential by the Initial Purchaser or any such attorney, accountant
or agent, unless such disclosure is made in connection with a court
proceeding or required by law after notice has been given to the
Company of such pending disclosure and a reasonable opportunity has
been provided, where reasonably possible, for the Company to obtain an
appropriate protective order for the information to be disclosed, or
such information becomes available to the public generally or through
a third party without an accompanying obligation of confidentiality;
(iii) make such representations and warranties to the Initial
Purchaser, in form, substance and scope as are customarily made by
issuers to underwriters in primary underwritten offerings and covering
matters including, but not limited to, those set forth in the Purchase
Agreement;
11
(iv) obtain opinions of counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance)
shall be reasonably satisfactory to the Initial Purchaser and its
counsel, addressed to the Initial Purchaser, covering such matters as
are customarily covered in opinions requested in underwritten
offerings and such other matters as may be reasonably requested by the
Initial Purchaser or its counsel;
(v) obtain "cold comfort" letters and updates thereof from the
independent certified public accountants of the Company (and, if
necessary, any other independent certified public accountants of any
subsidiary of the Company or of any business acquired by the Company
for which financial statements and financial data are, or are required
to be, included in the Registration Statement), addressed to such
Initial Purchaser, in customary form and covering matters of the type
customarily covered in "cold comfort" letters in connection with
primary underwritten offerings; and
(vi) deliver such documents and certificates as may be
reasonably requested by such Initial Purchaser or its counsel,
including those to evidence compliance with Section 4(k) and with
conditions customarily contained in underwriting agreements.
The foregoing actions set forth in clauses (iii), (iv), (v), and (vi)
of this Section 4(r) shall be performed at the close of the Registered Exchange
Offer and the effective date of any post-effective amendment to the Exchange
Offer Registration Statement.
(s) If a Registered Exchange Offer is to be consummated, upon
delivery of the Securities by Holders to the Company (or to such other
Person as directed by the Company) in exchange for the Exchange Securities,
the Company shall ▇▇▇▇, or caused to be marked, on the Securities so
exchanged that such Securities are being canceled in exchange for the
Exchange Securities. In no event shall the Securities be marked as paid or
otherwise satisfied.
5. Registration Expenses. The Company shall bear all expenses
---------------------
incurred in connection with the performance of its obligations under Sections 2,
3 and 4 hereof and, in the event of any Shelf Registration Statement, will
reimburse the Holders for the reasonable fees and disbursements of one firm or
counsel designated by the Majority Holders to act as counsel for the Holders in
connection therewith (which firm or counsel shall be reasonably satisfactory to
the Company), and, in the case of any Exchange Offer Registration Statement,
will reimburse the Initial Purchaser for the reasonable fees and disbursements
of counsel acting in connection therewith.
6. Indemnification and Contribution.
--------------------------------
(a) The Company agrees to indemnify and hold harmless each Holder of
Securities or Exchange Securities, as the case may be, covered by any
Registration Statement (including the Initial Purchaser and, with respect
to any Prospectus delivery as contemplated in Section 4(h) hereof, each
Exchanging Dealer), the directors, officers, employees and agents of each
such Holder and each Person who controls any such Holder within the meaning
of either the Act or the Exchange Act against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement as
originally filed or in any amendment thereof, or in any preliminary
Prospectus or the
12
Prospectus, or in any amendment thereof or supplement thereto, or arise out
of or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of the
circumstances under which they were made) not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
--------
however, that the Company will not be liable in any case to the extent that
-------
any such loss, claim, damage or liability arises out of or is based upon
any such untrue statement or alleged untrue statement or omission or
alleged omission made therein in reliance upon and in conformity with
written information furnished to the Company by or on behalf of any such
Holder specifically for inclusion therein. This indemnity agreement will
be in addition to any liability which the Company may otherwise have.
The Company also agrees to indemnify or contribute as provided in
Section 6(d) to Losses of any underwriter of Securities or Exchange
Securities, as the case may be, registered under a Shelf Registration
Statement, their directors, officers, employees or agents and each Person
who controls such underwriter on substantially the same basis as that of
the indemnification of the Initial Purchaser and the selling Holders
provided in this Section 6(a) and shall, if requested by any Holder, enter
into an underwriting agreement reflecting such agreement, as provided in
Section 4(p) hereof.
(b) Each Holder of securities covered by a Registration Statement
(including each Initial Purchaser and, with respect to any Prospectus
delivery as contemplated in Section 4(h) hereof, each Exchanging Dealer)
severally agrees to indemnify and hold harmless the Company, each of its
directors, each of its officers who signs such Registration Statement and
each Person who controls the Company within the meaning of either the Act
or the Exchange Act, to the same extent as the foregoing indemnity from the
Company to each such Holder, but only with reference to written information
relating to such Holder furnished to the Company by or on behalf of such
Holder specifically for inclusion in the documents referred to in the
foregoing indemnity. This indemnity agreement will be in addition to any
liability which any such Holder may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section
6 or notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party
(i) will not relieve it from liability under paragraph (a) or (b) above
unless and to the extent it did not otherwise learn of such action and such
failure results in the forfeiture by the indemnifying party of substantial
rights and defenses; and (ii) will not, in any event, relieve the
indemnifying party from any obligations to any indemnified party other than
the indemnification obligation provided in paragraph (a) or (b) above. The
indemnifying party shall be entitled to appoint counsel of the indemnifying
party's choice at the indemnifying party's expense to represent the
indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for
the fees and expenses of any separate counsel retained by the indemnified
party or parties except as set forth below); provided, however, that such
-------- -------
counsel shall be reasonably satisfactory to the indemnified party.
Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall
have the right to employ separate counsel (including local counsel), and
13
the indemnifying party shall bear the reasonable fees, costs and expenses
of such separate counsel if (i) the use of counsel chosen by the
indemnifying party to represent the indemnified party would present such
counsel with a conflict of interest, and such counsel shall have advised
the indemnified party to such effect in writing; (ii) the actual or
potential defendants in, or targets of, any such action include both the
indemnified party and the indemnifying party and the indemnified party
shall have reasonably concluded that there may be legal defenses available
to it which are different from or additional to those available to the
indemnifying party; (iii) the indemnifying party shall not have employed
counsel satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of the institution of such
action; or (iv) the indemnifying party shall authorize the indemnified
party in writing to employ separate counsel at the expense of the
indemnifying party. An indemnifying party will not, without the prior
written consent of the indemnified parties, settle or compromise or consent
to the entry of any judgment with respect to any pending or threatened
claim, action, suit or proceeding in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified
parties are actual or potential parties to such claim or action) unless
such settlement, compromise or consent includes an unconditional release of
each indemnified party from all liability arising out of such claim,
action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section is unavailable to or insufficient to hold harmless an
indemnified party for any reason, then each applicable indemnifying party
shall have a joint and several obligation to contribute to the aggregate
losses, claims, damages and liabilities (including legal or other expenses
reasonably incurred in connection with investigating or defending same)
(collectively "Losses") to which such indemnified party may be subject in
such proportion as is appropriate to reflect the relative benefits received
by such indemnifying party, on the one hand, and such indemnified party, on
the other hand, from the Initial Placement and the Registration Statement
which resulted in such Losses; provided, however, that in no case shall the
-------- -------
Initial Purchaser or any subsequent Holder of any Security or Exchange
Security be responsible, in the aggregate, for any amount in excess of the
purchase discount or commission applicable to such Security, or in the case
of an Exchange Security, applicable to the Security that was exchangeable
into such Exchange Security, as set forth on the cover page of the Offering
Circular, nor shall any underwriter be responsible for any amount in excess
of the underwriting discount or commission applicable to the securities
purchased by such underwriter under the Registration Statement which
resulted in such Losses. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the indemnifying party
and the indemnified party shall contribute in such proportion as is
appropriate to reflect not only such relative benefits but also the
relative fault of such indemnifying party, on the one hand, and such
indemnified party, on the other hand, in connection with the statements or
omissions which resulted in such Losses as well as any other relevant
equitable considerations. Benefits received by the Company shall be deemed
to be equal to the sum of (x) the total net proceeds from the Initial
Placement (before deducting expenses) as set forth on the cover page of the
Offering Circular and (y) the total amount of additional interest which the
Company was not required to pay as a result of registering the securities
covered by the Registration Statement which resulted in such Losses.
Benefits received by the Initial Purchaser shall be deemed to be equal to
the total purchase discounts and commissions as set forth on the cover page
of the Offering Circular, and benefits received by any other Holders shall
be deemed to be equal to the value of receiving Securities or Exchange
Securities, as applicable, registered under the Act. Benefits received by
any underwriter shall be deemed to be equal to the total underwriting
discounts and commissions, as set forth on the cover
14
page of the Prospectus forming a part of the Registration Statement which
resulted in such Losses. Relative fault shall be determined by reference
to, among other things, whether any alleged untrue statement or omission
relates to information provided by the indemnifying party, on the one hand,
or by the indemnified party, on the other hand, the intent of the parties
and their relative knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The parties agree
that it would not be just and equitable if contribution were determined by
pro rata allocation (even if the Holders were treated as one entity for
such purpose) or any other method of allocation which does not take account
of the equitable considerations referred to above. Notwithstanding the
provisions of this paragraph (d), no Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any Person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each Person who
controls a Holder within the meaning of either the Act or the Exchange Act
and each director, officer, employee and agent of such Holder shall have
the same rights to contribution as such Holder, and each Person who
controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms
and conditions of this paragraph (d).
(e) The provisions of this Section will remain in full force and
effect, regardless of any investigation made by or on behalf of any Holder
or the Company or any of the officers, directors or controlling Persons
referred to in this Section hereof, and will survive the sale by a Holder
of securities covered by a Registration Statement.
7. Underwritten Registrations.
--------------------------
(a) If any of the Securities or Exchange Securities, as the case may
be, covered by any Shelf Registration Statement are to be sold in an
underwritten offering, the Managing Underwriters shall be selected by the
Majority Holders.
(b) No Person may participate in any underwritten offering pursuant
to any Shelf Registration Statement, unless such Person (i) agrees to sell
such Person's Securities or Exchange Securities, as the case may be, on the
basis reasonably provided in any underwriting arrangements approved by the
Persons entitled hereunder to approve such arrangements; and (ii) completes
and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the
terms of such underwriting arrangements.
8. No Inconsistent Agreements. The Company has not, as of the date
--------------------------
hereof, entered into, nor shall it, on or after the date hereof, enter into, any
agreement with respect to its securities that is inconsistent with the rights
granted to the Holders herein or otherwise conflicts with the provisions hereof.
9. Amendments and Waivers. The provisions of this Agreement,
----------------------
including the provisions of this sentence, may not be amended, qualified,
modified or supplemented, and waivers or consents to departures from the
provisions hereof may not be given, unless the Company has obtained the written
consent of the Majority Holders (or, after the consummation of any Registered
Exchange Offer in accordance with Section 2 hereof, of Exchange Securities);
provided that, with respect to any matter that directly or indirectly affects
--------
the rights of the Initial Purchaser hereunder, the Company shall
15
obtain the written consent of the Initial Purchaser against which such
amendment, qualification, supplement, waiver or consent is to be effective.
Notwithstanding the foregoing (except the foregoing proviso), a waiver or
consent to departure from the provisions hereof with respect to a matter that
relates exclusively to the rights of Holders whose Securities or Exchange
Securities, as the case may be, are being sold pursuant to a Registration
Statement and that does not directly or indirectly affect the rights of other
Holders may be given by the Majority Holders, determined on the basis of
Securities or Exchange Securities, as the case may be, being sold rather than
registered under such Registration Statement.
10. Notices. All notices and other communications provided for or
-------
permitted hereunder shall be made in writing by hand-delivery, first-class mail,
telex, telecopier or air courier guaranteeing overnight delivery:
(a) if to a Holder, at the most current address given by such holder
to the Company in accordance with the provisions of this Section, which
address initially is, with respect to each Holder, the address of such
Holder maintained by the Registrar under the Indenture, with a copy in like
manner to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.;
(b) if to you, initially at your address set forth in the Purchase
Agreement; and
(c) if to the Company, initially at its address set forth in the
Purchase Agreement.
All such notices and communications shall be deemed to have been duly
given when received.
The Initial Purchaser or the Company by notice to the other parties
may designate additional or different addresses for subsequent notices or
communications.
11. Successors. This Agreement shall inure to the benefit of and be
----------
binding upon the successors and assigns of each of the parties, including,
without the need for an express assignment or any consent by the Company
thereto, subsequent Holders of Securities and the Exchange Securities. The
Company hereby agrees to extend the benefits of this Agreement to any Holder of
Securities and the Exchange Securities, and any such Holder may specifically
enforce the provisions of this Agreement as if an original party hereto.
12. Counterparts. This agreement may be in signed counterparts, each
------------
of which shall an original and all of which together shall constitute one and
the same agreement.
13. Headings. The headings used herein are for convenience only and
--------
shall not affect the construction hereof.
14. Applicable Law. This Agreement shall be governed by and
--------------
construed in accordance with the laws of the State of New York applicable to
contracts made and to be performed in the State of New York.
15. Severability. In the event that any one of more of the
------------
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and enforceability of any such provision in every other
respect and of the remaining provisions hereof shall not be in any way impaired
or affected thereby, it being intended that all of the rights and privileges of
the parties shall be enforceable to the fullest extent permitted by law.
16
16. Securities Held by the Company, etc. Whenever the consent or
------------------------------------
approval of Holders of a specified percentage of principal amount of Securities
or Exchange Securities is required hereunder, Securities or Exchange Securities,
as applicable, held by the Company or its Affiliates (other than subsequent
Holders of Securities or Exchange Securities if such subsequent Holders are
deemed to be Affiliates solely by reason of their holdings of such Securities or
Exchange Securities) shall not be counted in determining whether such consent or
approval was given by the Holders of such required percentage.
17. Liquidated Damages Under Certain Circumstances. (a) Liquidated
----------------------------------------------
damages ("Liquidated Damages") shall become payable in respect of the Securities
or Exchange Securities, as the case may be, as follows if any of the following
events occur (each such event in clauses (i) through (iii) below, a
"Registration Default"):
(i) in the event that the Company is permitted under the law and
currently prevailing interpretations of the Commission's staff to effect
the Registered Exchange Offer and the Exchange Offer Registration Statement
is not declared effective on or prior to the 180th day following the Time
of Delivery;
(ii) the Registered Exchange Offer is not consummated or the Shelf
Registration Statement is not declared effective on or prior to the 225th
day following the Time of Delivery; or
(iii) after a Shelf Registration Statement is declared effective, (A)
such Shelf Registration Statement ceases to be effective prior to the end
of the Shelf Registration Period (except as permitted in paragraph (b) of
this Section 17); or (B) such Shelf Registration Statement or the related
Prospectus ceases to be useable in connection with resales of Securities or
Exchange Securities, as the case may be, covered by such Shelf Registration
Statement prior to the end of the Shelf Registration Period (except as
permitted in paragraph (b) of this Section 17) because (1) the Company
determines that any event occurs as a result of which the related
Prospectus forming part of such Shelf Registration Statement would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein in the light of the circumstances
under which they were made not misleading, (2) the Company determines that
it shall be necessary to amend such Shelf Registration Statement, or
supplement the related Prospectus, to comply with the Act or the Exchange
Act or the rules thereunder, or (3) the Company determines that it is
advisable to suspend use of the Prospectus for a discrete period of time
due to pending material corporate developments or similar material events
that have not yet been publicly disclosed and as to which the Company
believes public disclosure will be prejudicial to the Company.
Liquidated Damages shall accrue on the Securities or the Exchange
Securities, as the case may be, over and above the interest rate set forth in
the title to the Securities or the Exchange Securities, as the case may be,
following the occurrence of each Registration Default set forth in clauses (i)
and (ii) above from and including the next day following each such Registration
Default, in each case at a rate equal to 0.25% per annum; provided, however,
-------- -------
that in any case, if one or more Registration Defaults referred to in Section
17(a)(iii) occurs and continues for more than 60 days (whether or not
consecutive) in any twelve month period (the 61st day being referred to as the
"Default Day") then from the Default Day until the earlier of (x) the date such
Shelf Registration Statement is again deemed effective or is useable, (y) the
date that is the second anniversary of the Time of Delivery (or, if Rule 144(k)
of the Act is amended to provide a shorter restrictive period, such shorter
period) or (z) the date as
17
of which all the Securities are sold pursuant to such Shelf Registration
Statement, Liquidated Damages shall accrue at a rate of 0.25% per annum;
provided, further, that the aggregate amount of Liquidated Damages payable
-------- -------
pursuant to this Section 17 will in no event exceed 0.25% per annum. The
Liquidated Damages attributable to each Registration Default referred to in
clauses (i) and (ii) above shall cease to accrue from the date of effectiveness
of the Exchange Offer Registration Statement after such 180-day period, in the
case of clause (i) above, or the consummation of the Registered Exchange Offer
or the date of effectiveness of the Shelf Registration Statement after such 225-
day period, in the case of clause (ii) above.
(b) A Registration Default referred to in Section 17(a)(iii) shall be
deemed not to have occurred and be continuing in relation to a Shelf
Registration Statement or the related Prospectus if (i) such Registration
Default has occurred solely as a result of (x) the filing of a post-
effective amendment to such Shelf Registration Statement to incorporate
annual audited financial information with respect to the Company where such
post-effective amendment is not yet effective and needs to be declared
effective to permit Holders to use the related Prospectus or (y) the
occurrence of other material events or developments with respect to the
Company that would need to be described in such Registration Statement or
the related Prospectus and (ii) in the case of clause (y), the Company is
proceeding promptly and in good faith to amend or supplement such
Registration Statement and related Prospectus to describe such events.
(c) Any amounts of Liquidated Damages due pursuant to the foregoing
paragraphs will be payable in cash on September 15 and March 15 of each
year to the holders of record on the preceding September 1 and March 1,
respectively.
18
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a building agreement between the
Company and the Initial Purchaser.
Very truly yours,
POTLATCH CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Treasurer
The foregoing Agreement is hereby confirmed and
accepted as of the date first above written.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Vice President
19
ANNEX A
Each Broker-Dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. The
Letter of Transmittal states that by so acknowledging and by delivering a
prospectus, a Broker-Dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act. This Prospectus, as it
may be amended or supplemented from time to time, may be used by a Broker-Dealer
in connection with resales of Exchange Securities received in exchange for
Securities where such Securities were acquired by such Broker-Dealer as a result
of market-making activities or other trading activities. The Company has agreed
that, starting on the Expiration Date (as defined herein) and ending on the
close of business on the 180th day following the Expiration Date, it will make
this Prospectus available to Broker-Dealers for use in connection with any such
resale. See "Plan of Distribution".
A-0
ANNEX B
Each Broker-Dealer that receives Exchange Securities for its own
account in exchange for Securities, where such Securities were acquired by such
Broker-Dealer as a result of market-making activities or other trading
activities, must acknowledge that it will deliver a prospectus in connection
with any resale of such Exchange Securities. See "Plan of Distribution".
B-1
ANNEX C
PLAN OF DISTRIBUTION
Each Broker-Dealer that receives Exchange Securities for its own
account pursuant to the Exchange Offer must acknowledge that it will deliver a
prospectus in connection with any resale of such Exchange Securities. This
Prospectus, as it may be amended or supplemented from time to time, may be used
by a Broker-Dealer in connection with resales of Exchange Securities received in
exchange for Securities where such Securities were acquired as a result of
market-making activities or other trading activities. The Company has agreed
that, starting on the Expiration Date and ending on the close of business 180
days after the Expiration Date, it will make this Prospectus, as amended or
supplemented, available to any Broker-Dealer for use in connection with any such
resale. In addition, until __________, 199__, all dealers effecting
transactions in the Exchange Securities may be required to deliver a prospectus.
The Company will not receive any proceeds from any sale of Exchange
Securities by brokers-dealers. Exchange Securities received by Broker-Dealers
for their own account pursuant to the Exchange Offer may be sold from time to
time in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the Exchange Securities or a
combination of such methods of resale, at market prices prevailing at the time
of resale, at prices related to such prevailing market prices or negotiated
prices. Any such resale may be made directly to purchasers or to or through
brokers or dealers who may receive compensation in the form of commissions or
concessions from any such Broker-Dealer and/or the purchasers of any such
Exchange Securities. Any Broker-Dealer that resells Exchange Securities that
were received by it for its own account pursuant to the Exchange Offer and any
broker or dealer that participates in a distribution of such Exchange Securities
may be deemed to be an "underwriter" within the meaning of the Securities Act
and any profit of any such resale of Exchange Securities and any commissions or
concessions received by any such Persons may be deemed to be underwriting
compensation under the Securities Act. The Letter of Transmittal states that by
acknowledging that it will deliver and by delivering a prospectus, a Broker-
Dealer will not be deemed to admit that it is an "underwriter" within the
meaning of the Securities Act.
For a period of 180 days after the Expiration Date, the Company will
promptly send additional copies of this Prospectus and any amendment or
supplement to this Prospectus to any Broker-Dealer that requests such documents
in the Letter of Transmittal. The Company has agreed to pay all expenses
incident to the Exchange Offer (including the expenses of one counsel for the
holders of the Securities) other than commissions or concessions of any brokers
or dealers and will indemnify the holders of the Securities (including any
Broker-Dealers) against certain liabilities, including liabilities under the
Securities Act.
If applicable, add information required by Regulation S-K Items 507 and/or 508.
C-1
ANNEX D
Rider A
-------
CHECK HERE IF YOU ARE A BROKER-DEALER AND WISH TO RECEIVE 10
ADDITIONAL COPIES OF THE PROSPECTUS AND 10 COPIES OF ANY AMENDMENTS OR
SUPPLEMENTS THERETO.
Name:
Address:
Rider B
-------
If the undersigned is not a Broker-Dealer, the undersigned represents
that it acquired the Exchange Securities in the ordinary course of its business,
it is not engaged in, and does not intend to engage in, a distribution of
Exchange Securities and it has no arrangements or understandings with any Person
to participate in a distribution of the Exchange Securities. If the undersigned
is a Broker-Dealer that will receive Exchange Securities for its own account in
exchange for Securities, it represents that the Securities to be exchanged for
Exchange Securities were acquired by it as a result of market-making activities
or other trading activities and acknowledges that it will deliver a prospectus
in connection with any resale of such Exchange Securities; however, by so
acknowledging and by delivering a prospectus, the undersigned will not be deemed
to admit that it is an "underwriter" within the meaning of the Securities Act.
D-1
ANNEX E
FORM OF LETTER TO BE PROVIDED BY ISSUER TO
THE DEPOSITORY TRUST COMPANY
POTLATCH CORPORATION
__________________, 199__
The Depository Trust Company
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel's Office
Ladies and Gentlemen:
We refer to the Letter of Representations, dated March __, 1999 (the
"Letter of Representations"), from Potlatch Corporation (the "Issuer") and U.S.
Bank Trust, National Association, as trustee (the "Trustee") to The Depository
Trust Company ("DTC") regarding the Issuer's 6.25% Notes due March 15, 2002 (the
"Old Securities"). The CUSIP number(s) of the Old Securities is are
__________________. The Issuer and the Trustee hereby agree and notify DTC that
as of ________ __, 199__, the Securities and Exchange Commission declared
effective a Registration Statement (File No. _____) with respect to an offering
of the Issuer's ________% Exchange Notes due _______________ __, 2002 (the "New
Securities") (CUSIP No. __________) in exchange for the Old Securities.
Following the consummation of the exchange offer and the cancellation of the
global securities representing the Old Securities, the Issuer and the Trustee
agree that, with the exception of the Representations for Rule 144A Securities
attached thereto, the Letter of Representations and any applicable riders
thereto shall remain in full force and effect with respect to the New
Securities.
Very truly yours,
POTLATCH CORPORATION
By:_________________________________
Name:
Title:
D-2
TRUSTEE
By:_________________________________
Name:
Title:
Received and Accepted:
THE DEPOSITORY TRUST COMPANY
By:__________________________
Name:
Title:
D-3