Exhibit 1.1
DRAFT 11/15/01
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PLUM CREEK TIMBER COMPANY, INC.
a Delaware corporation
8,566,637 Shares of Common Stock
PURCHASE AGREEMENT
Dated: November -, 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
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(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..................................................11
(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..................................................................................13
(d) DENOMINATIONS; REGISTRATION..............................................................14
SECTION 3. Covenants of the Company.......................................................14
(a) COMPLIANCE WITH SECURITIES REGULATIONS AND COMMISSION REQUESTS...........................14
(b) FILING OF AMENDMENTS.....................................................................15
(c) DELIVERY OF REGISTRATION STATEMENTS......................................................15
(d) DELIVERY OF PROSPECTUSES.................................................................15
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(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.................................................................................17
(b) EXPENSES OF THE SELLING STOCKHOLDERS.....................................................18
(c) TERMINATION OF AGREEMENT.................................................................18
(d) ALLOCATION OF EXPENSES...................................................................18
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..........................................19
(e) OPINION OF COUNSEL FOR UNDERWRITERS......................................................19
(f) OFFICERS' CERTIFICATE....................................................................20
(g) CERTIFICATE OF SELLING STOCKHOLDERS......................................................20
(h) ACCOUNTANT'S COMFORT LETTER..............................................................20
(i) BRING-DOWN COMFORT LETTER................................................................21
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(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.....................................................21
(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.................................................................22
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.........................................26
SECTION 7. Contribution...................................................................26
SECTION 8. Representations, Warranties and Agreements to Survive Delivery.................28
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SECTION 9. Termination of Agreement.......................................................28
(a) TERMINATION; GENERAL.....................................................................28
(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........................................................................30
SECTION 13. Parties........................................................................31
SECTION 14. GOVERNING LAW AND TIME.........................................................31
SECTION 15. Effect of Headings.............................................................31
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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
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PLUM CREEK TIMBER COMPANY, INC.
(a Delaware corporation)
8,566,637 Shares of Common Stock
(Par Value $.01 Per Share)
PURCHASE AGREEMENT
November _, 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,
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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 1,284,996 additional shares of Common Stock to cover
over-allotments, if any. The aforesaid 8,566,637 shares of Common Stock (the
"Initial Securities") to be purchased by the Underwriters and all or any part of
the 1,284,996 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
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on, the term "Prospectus" shall refer to the preliminary prospectus dated
November __, 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 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 fact or omit to state a material fact required
to be stated therein or necessary to make
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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 Company and its
consolidated subsidiaries and The Timber Company (as defined
4
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. 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 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 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
5
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 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 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 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.
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(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 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
7
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 timber)
owned by the Company and its subsidiaries and good title to all other
properties (including timber) owned by them, in each case, free and
clear of all mortgages, pledges, 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
8
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) there are no
events or circumstances that might 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 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
9
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 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
10
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.
(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
11
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 does not exceed 10% 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 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.
12
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
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
13
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.
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
14
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 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
15
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 opinion of counsel for the
Underwriters or 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 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.
16
(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.
(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
17
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 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.
18
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 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
19
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 the matters set forth in clauses (i), (ii), (v),
(solely as to preemptive or other similar rights arising by operation of law or
under the charter or by-laws of the Company), (vi) through (viii), inclusive,
(xi) and the penultimate paragraph of Exhibit A hereto. 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 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
20
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 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.
21
(iv) OPINION OF IN-HOUSE COUNSEL. An opinion of ▇▇▇▇▇ ▇.
▇▇▇▇▇, 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
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
22
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
(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
23
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 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
24
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 sentence hereof, assume the defense of such
action with counsel chosen by it (provided that such counsel is approved, in
their sole 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
25
to Section 6() 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.
(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
26
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 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
27
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 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,
29
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 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
29
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 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
30
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.
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.
31
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:
32
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.
33
SCHEDULE A
Number of
Initial
NAME OF UNDERWRITER Securities
----------
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated.................................
▇▇▇▇▇▇▇, Sachs & Co...............................................
▇. ▇. ▇▇▇▇▇▇▇▇ & Co...............................................
Total............................................................. 8,566,637
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. 85,666 12,850
PCMC Intermediate Holdings, L.P. 8,480,971 1,272,146
Total 8,566,637 1,284,996
Sch B-1
SCHEDULE C
Plum Creek Timber Company, Inc.
8,566,637 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 $0.
2. The purchase price per share for the Securities to be
paid by the several Underwriters shall be $o, being an amount equal to the
initial public offering price set forth above less $o 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 shares of issued and outstanding capital stock of the
Company, including the Securities, have been duly authorized, validly issued and
are fully paid and non-assessable and none of the outstanding shares of capital
stock of the Company was 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
____ [a.m.], on November [__], 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.
The opinion should also state that the addressees of the opinion may
rely on the opinion of such counsel filed as Exhibit 8.2 of 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 agreement or instrument that is described or referred to in the
Registration Statement or the
B-2
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 verification thereof (except to the limited extent referred
to in paragraph (iv)
B-3
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