Willamette Industries, Inc.
Underwriting Agreement
To: The Representatives ------------, 1998
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Dear Sirs:
Willamette Industries, Inc., an Oregon corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its senior debt securities
identified in Schedule I hereto (the "Securities"), to be issued under an
indenture (the "Indenture") dated as of January 30, 1993, between the Company
and The Chase Manhattan Bank, as trustee (the "Trustee"). If the firm or firms
listed in Schedule II hereto include only the firm or firms listed in Schedule I
hereto, then the terms "Underwriters" and "Representatives," as used herein
shall each be deemed to refer to such firm or firms.
1. Representations and Warranties. The Company represents and warrants
to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933 (the "Act") and the rules and regulations of the
Securities and Exchange Commission (the "Commission") thereunder and has
filed with the Commission a registration statement on such form (file
number 333-32647), which has become effective, for the registration under
the Act of the Securities. Such registration statement as amended through
the date of this Agreement meets the requirements set forth in Rule 415(a)
under the Act and complies in all other material respects with said rule.
The Company proposes to file with the Commission pursuant to Rule 424 under
the Act a supplement to the form of prospectus included in such
registration statement relating to the Securities and the plan of
distribution thereof. The Company has previously advised you of such other
information (financial and other) with respect to the Company as is
expected to be included therein. Such registration statement, including the
exhibits thereto, as amended through the date of this Agreement, is
hereinafter called the "Registration Statement"; such prospectus in the
form in which it appears in the Registration Statement is hereinafter
called the "Basic Prospectus" and such supplemented form of prospectus, in
the form it shall be filed with the Commission
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EXHIBIT 99.1
pursuant to Rule 424 (including the Basic Prospectus as so supplemented) is
hereinafter called the "Final Prospectus." Any reference herein to the
Registration Statement, the Basic Prospectus, or the Final Prospectus shall
be deemed to include the documents incorporated by reference therein
pursuant to Item 12 of Form S-3 that were filed under the Securities
Exchange Act of 1934 (the "Exchange Act") on or before the date of this
Agreement, the Basic Prospectus or the Final Prospectus, as the case may
be; and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the Registration Statement, the Basic
Prospectus or the Final Prospectus shall be deemed to include (in addition
to any other amendment or supplement) the filing of any document under the
Exchange Act after the date of this Agreement, the Basic Prospectus or the
Final Prospectus, as the case may be, which is incorporated therein by
reference.
(b) At the effective date of the Registration Statement, at the date
hereof, at the date the Final Prospectus is first filed pursuant to Rule
424 under the Act, at any date prior to the Closing Date (as hereinafter
defined) when any amendment to the Registration Statement becomes effective
(including the filing of any document incorporated by reference in the
Registration Statement), and at the date any supplement to the Final
Prospectus is filed with the Commission and at the Closing Date, (i) the
Registration Statement, as amended as of any such time, and the Final
Prospectus, as amended or supplemented as of any such time, and the
Indenture complied or will comply in all material respects with the
applicable requirements of the Act, the Trust Indenture Act of 1939 (the
"Trust Indenture Act") and the Exchange Act and the respective rules
thereunder and (ii) neither the Registration Statement, as amended as of
any such time, nor the Final Prospectus, as amended or supplemented as of
any such time, contained or will contain any untrue statement of a material
fact or omitted or will omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; provided, however, that the Company makes no representations or
warranties as to (x) that part of the Registration Statement, if any, that
shall constitute the Statement of Eligibility and Qualification (Form T-1)
under the Trust Indenture Act of the Trustee or (y) the information
contained in or omitted from the Registration Statement or the Final
Prospectus or any amendment thereof or supplement thereto in reliance upon
and in conformity with information furnished in writing to the Company by
or on behalf of any Underwriter through the Representatives specifically
for use in connection with the preparation of the Registration Statement
and the Final Prospectus.
(c) The Company has furnished to the Representatives a copy of the
Registration Statement as originally filed and of each amendment thereto,
each document incorporated therein by reference, each consent and exhibit
filed therewith and each supplement to the Basic Prospectus heretofore
filed with the Commission.
2. Purchase and Sale. Subject to the terms and conditions and in
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the purchase price set forth in
Schedule I the principal amount of the Securities set forth opposite such
Underwriter's name in Schedule II except that, if Schedule I provides for the
sale of
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EXHIBIT 99.1
Securities pursuant to delayed delivery arrangements, the respective principal
amounts of Securities to be purchased by the Underwriters shall be as set forth
in Schedule II hereto, less the respective amounts of "Contract Securities" (as
hereinafter defined) determined as provided below. Securities to be purchased by
the Underwriters are herein sometimes called the "Underwriters' Securities" and
Securities to be purchased pursuant to delayed delivery contracts are herein
sometimes called "Contract Securities."
If so provided in Schedule I, the Underwriters are authorized to
solicit offers to purchase Securities from the Company pursuant to delayed
delivery contracts ("Delayed Delivery Contracts") substantially in the form of
Schedule III but with such changes therein as the Company may authorize or
approve. As compensation therefor, the Company will pay to the Representatives,
for the account of the Underwriters, on the Closing Date, the percentage set
forth in Schedule I of the principal amount of the Securities for which Delayed
Delivery Contracts are made. Delayed Delivery Contracts are to be with
institutional investors, including commercial and savings banks, insurance
companies, pension funds, investment companies and educational and charitable
institutions. The entering into of Delayed Delivery Contracts arranged by the
Underwriters shall in each case be subject to the Company's approval and
acceptance. Except as the Company may otherwise agree, each Delayed Delivery
Contract must be for not less than the minimum principal amount set forth in
Schedule I and the aggregate principal amount of Contract Securities may not
exceed the maximum aggregate principal amount set forth in Schedule I. The
Underwriters will not have any responsibility in respect of the validity or
performance of Delayed Delivery Contracts. The principal amount of Securities to
be purchased by each Underwriter as set forth in Schedule II shall be reduced by
an amount which shall bear the same proportion to the total principal amount of
Contract Securities as the principal amount of Securities set forth opposite the
name of such Underwriter bears to the aggregate principal amount set forth in
Schedule II, except to the extent that the Representatives determine that such
reduction shall be otherwise than in such proportion and so advise the Company
in writing; provided, however, that the total principal amount of Securities to
be purchased by all Underwriters shall be the aggregate principal amount set
forth in Schedule II hereto, less the aggregate principal amount of Contract
Securities, and provided, further, that the Securities shall be issued in
authorized denominations only.
3. Delivery and Payment. Delivery of and payment for the Underwriters'
Securities shall be made at the office, on the date and at the time specified in
Schedule I, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 7 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Underwriters' Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment, by the several Underwriters through the Representatives, of the
purchase price to or upon the order of the Company in the funds specified in
Schedule I. Certificates for the Underwriters' Securities shall be registered in
such names and in such denominations as the Representatives may request not less
than three full business days prior to the Closing Date.
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EXHIBIT 99.1
The Company will have the Underwriters' Securities available for
inspection, checking and packaging by the Representatives in the city in which
delivery and payment is to occur, not later than 1 p.m., on the business day
prior to the Closing Date.
4. Agreements. The Company agrees with the several Underwriters that:
(a) Prior to the termination of the offering of the Securities, the
Company will not file any amendment of the Registration Statement or
supplement (including the Final Prospectus) to the Basic Prospectus unless
the Company has furnished the Representatives a copy for review prior to
filing and will not file any such proposed amendment or supplement to which
the Representatives reasonably object. Subject to the foregoing sentence,
the Company will file the Final Prospectus with the Commission pursuant to
Rule 424 no later than the second business day following the earlier of the
determination of the offering price of the Securities or the date it is
first used after effectiveness in connection with a public offering or
sales or will cause the Final Prospectus to be transmitted to the
Commission for filing pursuant to Rule 424 by a means reasonably calculated
to result in filing with the Commission by that date. The Company will
promptly advise the Representatives when the Final Prospectus shall have
been transmitted to the Commission for filing pursuant to Rule 424, and,
until the termination of the offering of the Securities, (i) when any
amendment to the Registration Statement relating to the Securities shall
have become effective, (ii) of any request by the Commission for any
amendment of the Registration Statement or amendment of or supplement to
the Final Prospectus or for any additional information, (iii) of the
issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the institution or threatening of any
proceeding for that purpose and (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of
which the Final Prospectus as then amended or supplemented would include
any untrue statement of a material fact or omit to state any material fact
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, or if at any time it shall be
necessary to amend or supplement the Registration Statement or the Final
Prospectus to comply with the Act or the Exchange Act or the respective
rules thereunder, the Company promptly will prepare and file with the
Commission, subject to the first sentence of paragraph (a) of this Section
4, an amendment or supplement which will correct such statement or omission
or an amendment which will effect such compliance.
(c) The Company will make generally available to its security holders
and to the Representatives as soon as practicable, but not later than 45
days after the end of the 12-month period beginning at the end of the
fiscal quarter (or if the fiscal quarter is the
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EXHIBIT 99.1
fourth fiscal quarter, not later than 90 days after the end of such
12-month period) of the Company which ends after the later of (i) the
effective date of the Registration Statement, (ii) the effective date of
the most recent post-effective amendment to the Registration Statement
immediately preceding the Closing Date and (iii) the date of filing of the
Company's most recent annual report on Form 10-K immediately preceding the
Closing Date, an earnings statement (which need not be audited) of the
Company and its subsidiaries, covering such 12-month period, which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Company will furnish to the Representatives and counsel for the
Underwriters, without charge, copies of the Registration Statement
(including exhibits thereto) and each amendment thereto which shall become
effective on or prior to the Closing Date and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of the Final Prospectus and any amendments thereof and supplements
thereto as the Representatives may reasonably request. The Company will pay
the expenses of printing all documents relating to the offering.
(e) The Company will use its best efforts to arrange for qualification
of the Securities for sale under the laws of such domestic jurisdictions as
the Representatives may reasonably designate, will maintain such
qualifications in effect so long as reasonably required for the
distribution of the Securities and will arrange for the determination of
the legality of the Securities for purchase by institutional investors;
provided, however, that the Company will not be required to qualify to do
business in any jurisdiction where it is not now qualified or to take any
action which would subject it to general or unlimited service of process
where it is not now subject to such service of process.
(f) Until the business day following the Closing Date, the Company will
not, without the consent of the Representatives, offer or sell, or announce
the offering of, any debt securities (other than the Securities) having a
maturity of more than one year.
(g) The Company will pay all expenses incident to the performance of
its obligations under this Agreement, and will reimburse the Underwriters
for any expenses (including fees and disbursements of counsel) reasonably
incurred by them in connection with qualification of the Securities for
sale and determination of their eligibility for investment pursuant to
paragraph (e) of this Section 4 and the printing of memoranda relating
thereto, for any fees charged by investment rating agencies for the rating
of the Securities and for expenses reasonably incurred in distributing
prospectuses to the Underwriters.
5. Conditions to the Obligations of the Underwriters. The obligations
of the several Underwriters to purchase and pay for the Underwriters' Securities
shall be subject to the accuracy of the representations and warranties on the
part of the Company contained herein as of the date hereof and as of the Closing
Date, to the accuracy of the statements of officers of the Company made in any
certificates pursuant to the provisions hereof, to the performance and
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EXHIBIT 99.1
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed and to the following additional conditions
precedent:
(a) No stop order suspending the effectiveness of the Registration
Statement, as amended from time to time, shall have been issued, no
proceedings for that purpose shall have been instituted or threatened and
to the knowledge of the Company or any Underwriter, no such proceeding
shall be contemplated by the Commission.
(b) The Company shall have furnished to the Representatives an opinion
of Miller, Nash, Wiener, Hager & ▇▇▇▇▇▇▇ LLP, counsel for the Company,
dated as of the Closing Date to the effect that:
(i) the Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the state of
Oregon, with full corporate power and authority to own its properties
and conduct its business as described in the Final Prospectus (as
amended and supplemented);
(ii) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act, and
constitutes a legal, valid and binding instrument enforceable against
the Company in accordance with its terms (subject to applicable
bankruptcy, fraudulent transfer, reorganization, insolvency, moratorium
or other laws affecting creditors' rights generally and to general
equitable principles); and the Securities have been duly authorized
and, when executed and authenticated in accordance with the provisions
of the Indenture and delivered to and paid for by the Underwriters
pursuant to this Agreement, in the case of the Underwriters'
Securities, or by the purchasers thereof pursuant to Delayed Delivery
Contracts in the case of any Contract Securities, will constitute
legal, valid and binding obligations of the Company entitled to the
benefits of the Indenture;
(iii) the Registration Statement and any amendments thereto have
become effective under the Act; to the knowledge of such counsel, no
stop order suspending the effectiveness of the Registration Statement,
as amended, has been issued, no proceedings for that purpose have been
instituted or threatened or are contemplated; and the Registration
Statement, the Final Prospectus and each amendment thereof or
supplement thereto as of their respective effective or issue dates
complied as to form in all material respects with the applicable
requirements of the Act, the Exchange Act, the Trust Indenture Act, and
the respective rules thereunder; the descriptions in the Registration
Statement and the Final Prospectus of the Securities and of legal or
governmental proceedings and contracts fairly present the information
required to be shown; and, to the knowledge of such counsel, there are
no legal or governmental proceedings required to be described in the
Final Prospectus which are not described as required, nor are there any
contracts of a character required to be described in the Registration
Statement or the Final Prospectus or to be filed as an exhibit to the
Registration Statement
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EXHIBIT 99.1
which are not described or filed as required; provided, however, that
such counsel need express no opinion as to the financial statements or
other financial or statistical data information contained in the
Registration Statement, the Final Prospectus or any amendment or
supplement thereto;
(iv) this Agreement and any Delayed Delivery Contracts have been
duly authorized, executed and delivered by the Company;
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of the
Company, representatives of the independent public accountants for the
Company, representatives of the Representatives, and counsel for the
Representatives, at which the contents of the Registration Statement and
the Final Prospectus and related matters were discussed and, although such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and the Final Prospectus (except for those made
under the captions "Description of Securities" in the Registration
Statement and "Description of the Debentures" and "Underwriting" in the
Final Prospectus, insofar as they relate to the provisions of documents
therein described) and on the basis of the foregoing (relying as to
materiality to a large extent upon the opinions of officers and other
representatives of the Company), no facts have come to the attention of
such counsel in the course of their representation of the Company that have
led them to believe that either the Registration Statement or any amendment
thereto at the time the Registration Statement or amendment became
effective and at the Closing Date contained an untrue statement of a
material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading or that
the Final Prospectus, as amended or supplemented as of the Closing Date,
contained an untrue statement of a material fact or omitted 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 (it being
understood that such counsel need express no opinion or belief with respect
to the financial statements, financial schedules and other financial and
statistical data included in the Registration Statement, Final Prospectus
or any amendment or supplement thereto).
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Oregon or the United States, to the extent deemed proper and specified
in such opinion, upon the opinion of other counsel of good standing
believed to be reliable and who are satisfactory to the Representatives,
and (B) as to matters of fact, to the extent deemed proper, on certificates
of responsible officers of the Company and public officials.
(c) The Representatives shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇,
counsel for the Underwriters, such opinion or opinions, dated as of the
Closing Date, with respect to the issuance and sale of the Securities, the
Indenture, any Delayed Delivery Contracts, the Registration Statement, the
Final Prospectus and other related matters as the
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EXHIBIT 99.1
Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they may reasonably request for
the purpose of enabling them to pass upon such matters. In rendering such
opinion, such counsel may rely as to the incorporation of the Company and
all matters governed by Oregon law, upon the opinion referred to in Section
5(b) above.
(d) The Company shall have furnished to the Representatives a
certificate of the Company, signed by the President and Chief Executive
Officer or an Executive Vice President and the principal financial or
accounting officer of the Company, dated as of the Closing Date, to the
effect that the signers of such certificate have carefully examined the
Registration Statement, the Final Prospectus and this Agreement and that,
to the best of the signers' knowledge, after reasonable investigation:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with the
same effect as if made on the Closing Date and the Company has complied
with all the agreements and satisfied all the conditions on its part to
be performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or threatened; and
(iii) since the date of the most recent financial statements
included or incorporated in the Final Prospectus, there has been no
material adverse change in the condition (financial or other),
earnings, business or properties of the Company and its subsidiaries
(taken as a whole), whether or not arising from transactions in the
ordinary course of business, except as set forth or contemplated in the
Final Prospectus.
(e) At the Closing Date, KPMG Peat Marwick LLP shall have furnished to
the Representatives a letter or letters (which may refer to letters
previously delivered to one or more of the Representatives), dated as of
the Closing Date, confirming that they are independent accountants within
the meaning of the Act and the Exchange Act and the applicable published
rules and regulations thereunder and that the response, if any, to Item 10
of the Registration Statement is correct insofar as it relates to them and
stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated in the
Registration Statement and the Final Prospectus and reported on by them
comply as to form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the
published rules and regulations thereunder with respect to financial
statements and financial statement schedules;
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EXHIBIT 99.1
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries, carrying
out certain specified procedures (but not an examination in accordance
with generally accepted auditing standards) which would not necessarily
reveal matters of significance with respect to the items set forth in
such letter, a reading of the minutes of the meetings of the
shareholders, directors and executive committee of the Company, and
inquiries of certain officials of the Company who have responsibility
for financial and accounting matters of the Company and its
subsidiaries as to transactions and events subsequent to the date of
the most recent audited financial statements incorporated in the
Registration Statement and the Final Prospectus, nothing came to their
attention which caused them to believe:
(1) the unaudited financial statements included in the
Company's quarterly reports on Form 10-Q incorporated by reference
in the Registration Statement and the Final Prospectus, if any, do
not comply as to form in all material respects with the accounting
requirements of the Exchange Act and the published rules and
regulations thereunder applicable to Form 10-Q or are not fairly
presented in conformity with generally accepted accounting
principles applied on a basis substantially consistent with that
of the audited financial statements incorporated in the
Registration Statement and the Final Prospectus (except as to
matters of presentation and disclosure as permitted by Form 10-Q);
or
(2) the amounts in the "Selected Consolidated Financial Data"
included or incorporated in the Registration Statement and the
Final Prospectus do not agree with the corresponding amounts in
the financial statements from which such amounts were derived or
were not determined on a basis substantially consistent with that
of the audited financial statements included or incorporated in
the Registration Statement and the Final Prospectus or do not
agree with the accounting records of the Company and its
subsidiaries; or
(3) with respect to the period subsequent to the date of the
most recent financial statements incorporated in the Registration
Statement and the Final Prospectus, at a specified date not more
than five business days prior to the date of the letter there were
any changes in the capital stock (other than as a result of awards
or amortization of restricted stock and the exercise of stock
options granted under employee stock option plans of the Company),
long-term debt or short-term debt of the Company and its
consolidated subsidiaries (other than changes which in the
aggregate do not exceed 5 percent of the sum of the long-term debt
and short-term debt of the Company and its consolidated
subsidiaries as shown on the most recent balance sheet included or
incorporated in the Registration Statement and the Final
Prospectus), or as of the date of the latest available
consolidated balance sheet read by such accountants there were any
decreases in net
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EXHIBIT 99.1
current assets or net assets of the Company and its consolidated
subsidiaries, in each case as compared with the corresponding
amounts shown on the most recent consolidated balance sheet
included or incorporated in the Registration Statement and the
Final Prospectus, or for the period from the date of the most
recent financial statements incorporated in the Registration
Statement and the Final Prospectus to the date of the latest
available consolidated income statement read by such accountants
there were any decreases, as compared with the corresponding
period in the preceding year, in consolidated net sales, net
operating income, the ratio of earnings to fixed charges or the
total or per share amounts of income before extraordinary items or
of net income, except in all instances for changes or decreases
set forth in such letter, in which case the letter shall be
accompanied by an explanation by the Company as to the
significance thereof unless said explanation is not deemed
necessary by the Representatives; and
(iii) they have performed certain other specified procedures as a
result of which they determined that certain information identified in
Schedule I of an accounting, financial or statistical nature (which is
limited to accounting, financial or statistical information derived
from the general accounting records of the Company) included or
incorporated in the Registration Statement and the Final Prospectus as
amended or supplemented, agrees with the accounting records of the
Company and its subsidiaries, excluding any questions of legal
interpretation; and
(iv) if unaudited pro forma financial statements are included or
incorporated in the Registration Statement and the Final Prospectus, on
the basis of a reading of the unaudited pro forma financial statements,
carrying out certain specified procedures, inquiries of certain
officials of the Company and the acquired company who have
responsibility for financial and accounting matters, and proving the
arithmetic accuracy of the application of the pro forma adjustments to
the historical amounts in the pro forma financial statements, nothing
came to their attention which caused them to believe that the pro forma
financial statements do not comply in form in all material respects
with the applicable accounting requirements of Rule 11-02 of Regulation
S-X or that the pro forma adjustments have not been properly applied to
the historical amounts in the compilation of such statements.
In addition, promptly following the execution of this Agreement and before
the filing of the Final Prospectus, KPMG Peat Marwick LLP shall have
furnished to the Representatives a letter or letters (which may refer to
one or more letters previously delivered to the Representatives), dated as
of the date of this Agreement, in form and substance satisfactory to the
Representatives, to the effect set forth in the introductory paragraph to
this paragraph (e), and, to the extent referring to information included or
incorporated in the Registration Statement as amended or
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EXHIBIT 99.1
supplemented to the date of such letter, to the effect set forth in
subparagraphs (i), (ii) and (iii) of this paragraph.
(f) Subsequent to the date of this Agreement, there shall not have
occurred (i) any change, or any development involving a prospective change,
in or affecting particularly the business or properties of the Company or
its subsidiaries which, in the judgment of the Representatives, materially
impairs the investment quality of the Securities or (ii) any downgrading in
the rating of the Company's debt securities by any "nationally recognized
statistical rating organization" as defined in Rule 436(g) under the Act,
or any notice given by any such organization that it has under surveillance
or review, with possible negative implications, its rating of any of the
Company's debt securities, except for any such downgrading or notice given
by Fitch Investors Service, L.P.
(g) The Company shall have accepted Delayed Delivery Contracts in any
case where sales of Contract Securities arranged by the Underwriters have
been approved by the Company.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives, this Agreement and all obligations of the
Underwriters hereunder may be cancelled at, or at any time prior to, the Closing
Date by the Representatives. Notice of such cancellation shall be given to the
Company in writing or by telephone confirmed in writing.
6. Indemnification and Contribution.
(a) The Company agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls any Underwriter within the meaning of
the Act against any and all losses, claims, damages or liabilities, joint
or several, to which any such Underwriter or controlling person may become
subject under the Act, the Exchange Act or other Federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise out of
or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement or in any amendment
thereof, or in the Basic Prospectus or the Final Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon
the omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by it in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that (i) the Company will not be
liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or
alleged untrue statement or omission or alleged omission made therein in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of any
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EXHIBIT 99.1
Underwriter through the Representatives specifically for use in connection
with the preparation thereof, and (ii) such indemnity with respect to the
Basic Prospectus shall not inure to the benefit of any Underwriter (or any
person controlling such Underwriter) from whom the person asserting any
such loss, claim, damage or liability purchased the Securities if it shall
be established that such person did not receive a copy of the Final
Prospectus, excluding documents incorporated therein by reference, at or
prior to the confirmation of the sale of such Securities to such person in
any case where such delivery is required by the Act and the untrue
statement or omission or the alleged untrue statement or omission of
material fact was corrected in the Final Prospectus. This indemnity
agreement will be in addition to any liability which the Company may
otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of the Act, to the same extent as the foregoing
indemnity from the Company to each Underwriter, but only with reference to
written information furnished to the Company by or on behalf of such
Underwriter through the Representatives specifically for use in the
preparation of the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any
Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 6
of notice of the commencement of any action, such indemnified party will,
if a claim in respect thereof is to be made against the indemnifying party
under this Section 6, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
will not relieve the indemnifying party from any liability which it may
have to any indemnified party otherwise than under this Section 6. In case
any such action is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the indemnifying party
will be entitled to participate therein, and to the extent that it may
elect by written notice delivered to the indemnified party promptly after
receiving the aforesaid notice from such indemnified party, jointly with
any other indemnifying party, to assume the defense thereof with counsel
reasonably satisfactory to the indemnified party; provided, however, that
if the defendants in any such action include both the indemnified party and
the indemnifying party, and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties that are different from or additional to those
available to the indemnifying party, the indemnified party or parties shall
have the right to select separate counsel to assert such legal defenses and
to otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of
such action and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party under this
Section 6 for any legal or other expenses subsequently incurred by such
indemnified party unless (i) the indemnified party shall have employed
separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding
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EXHIBIT 99.1
sentence (it being understood, however, that the indemnifying party shall
not be liable for the expenses of more than one separate counsel, approved
by the Representatives in the case of paragraph (a) of this Section 6,
representing the indemnified parties under such paragraph (a) who are
parties to such action), (ii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized
the employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii). An indemnifying party shall not be liable for any
claim or action settled without its consent.
(d) If the indemnification provided for in this Section 6 shall for any
reason (other than as specified herein) be unavailable to an indemnified
party under Section 6(a) or 6(b) in respect of any loss, claim, damage or
liability, or action in respect thereof, referred to therein, then each
indemnifying party will contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, in such proportion as shall be appropriate to
reflect the relative benefits received by the parties from the offering of
the Securities, the relative fault of the parties with respect to the
statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company on
the one hand and the Underwriters on the other with respect to such
offering shall be determined in light of the relation of the total net
proceeds from the offering of the Securities (before deducting expenses)
received by the Company to the total discounts or commissions received by
the Underwriters with respect to such offering. The Company and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Section 6(d) were to be determined by pro rata allocation
or by any other method of allocation (even if the Underwriters were treated
as one entity for such purpose) or by any other method of allocation which
does not take into account the equitable considerations referred to herein.
The amount paid or payable by an indemnified party as a result of the loss,
claim, damage or liability, or action in respect thereof, referred to above
in this Section 6(d) shall be deemed to include, for purposes of this
Section 6(d), any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. Notwithstanding the provisions of this Section 6(d), each
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total discount or commission it received on the
Securities exceeds the amount of any damages which it shall have otherwise
paid or become liable to pay by reason of any 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 Act) shall be
entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. The Underwriters' obligations to contribute
are several and not joint.
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EXHIBIT 99.1
7. Default by an Underwriter. If any one or more Underwriters shall
fail to purchase and pay for any of the Securities agreed to be purchased by
such Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the Representatives may make arrangements satisfactory to the Company
for the purchase of such Securities by other persons (including any of the
Underwriters) but if no arrangements are made by the Closing Date the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Securities set forth opposite their
names in Schedule II hereto bear to the aggregate amount of Securities set
opposite the names of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
however, that in the event the aggregate amount of Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10 percent of the aggregate amount of Securities set forth in Schedule II
hereto, the Representatives may make arrangements satisfactory to the Company
for the purchase of such Securities by other persons (including any of the
Underwriters) but if no arrangements are made by the Closing Date the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Securities, and if such nondefaulting
Underwriters do not purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Company. In the event
of a default by any Underwriter as set forth in this Section 7, the Closing Date
shall be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in the
Registration Statement and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder. As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter pursuant to this Section 7.
8. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the several Underwriters set forth in or made
pursuant to this Agreement will remain in full force and effect, regardless of
any investigation or statements as to the results thereof made by or on behalf
of any Underwriter or the Company or any of the officers, directors or
controlling persons referred to in Section 6 hereof, and will survive delivery
of and payment for the Securities. The provisions of Sections 4(g) and 6 hereof
shall survive the termination or cancellation of this Agreement.
9. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange, (ii)
trading in any securities of the Company in the over-the-counter market shall
have been suspended or (iii) a banking moratorium shall have been declared
either by Federal, New York State or Oregon State authorities, or (iv) there
shall have occurred any outbreak or material escalation of hostilities or other
calamity or crisis the effect of which on the
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EXHIBIT 99.1
financial markets of the United States is such as to make it, in the judgment of
the Representatives, impracticable to market the Securities.
10. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives or the
Underwriters, will be mailed or delivered to the Representatives, at the address
specified in Schedule I hereto (except that any notice to an Underwriter
pursuant to Section 6 hereof shall be sent to it at its address specified in
Schedule II hereof); or, if sent to the Company, will be mailed or delivered to
it at ▇▇▇▇ ▇. ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, Attention:
Secretary.
11. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and, to the
extent provided in Section 6 hereof, to the benefit of the officers and
directors and controlling persons referred to in Section 6 hereof, and no other
person will have any right or obligation hereunder. The term "successor" shall
not include any purchaser as such purchaser of any of the Securities from any
Underwriter.
12. Representation of Underwriters. The Representatives will act for
the several Underwriters in connection with this financing, and any action under
this Agreement taken by them will be binding upon all the Underwriters.
13. Other. Additional terms and conditions, if any, relating to the
transactions herein contemplated may be set forth in Schedule I.
- 15 -
EXHIBIT 99.1
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
WILLAMETTE INDUSTRIES, INC.
By: -------------------------------------
Name:
Title:
The foregoing Agreement is hereby confirmed and accepted as of the date first
above written.
[Name of Representative]
By: -------------------------------
Name:
Title:
For themselves and on behalf of each of the other Underwriters, if any, named in
Schedule II to the foregoing Agreement.
- 16 -
EXHIBIT 99.1
SCHEDULE I
Underwriting Agreement dated:
Name(s) and address(es) of Representative(s):
Title, purchase price and description of Securities:
Title:
Principal amount:
Purchase price (include accrued
interest or amortization if
applicable):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, time and location:
Funds for payment of purchase price:
Delayed delivery arrangements:
Fee:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:
Jurisdictions in which Securities shall be qualified:
Additional terms and conditions:
Additional information covered by accountants' letter:
SCHEDULE II
Principal amount
of Securities to
Underwriter Address be purchased
----------- ------- ---------------------
$
-------------
Total $
SCHEDULE III
Delayed Delivery Contract
--------, 19--
Willamette Industries, Inc.
▇▇▇▇ ▇. ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Dear Sirs:
The undersigned hereby agrees to purchase from Willamette Industries,
Inc. (the "Company"), and the Company agrees to sell to the undersigned, as of
the date hereof, for delivery on ---------, 19--, (the "Delivery Date"),
$---------- in principal amount of the Company's (the "Securities") offered by
the Company's prospectus dated -----------, 19--, as supplemented
---------------, 19-- (the "Final Prospectus"), receipt of a copy of which is
hereby acknowledged, at a purchase price of ----- percent of the principal
amount thereof, plus accrued interest, if any, thereon from ---------, 19--, to
the date of payment and delivery, and on the further terms and conditions set
forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be
made on or before ------------------- on the Delivery Date to or upon the order
of the Company in ---------------- funds, at ------------- or at such other
place as shall be agreed between the Company and the undersigned upon delivery
to the undersigned of the Securities in definitive form and in such authorized
denominations and registered in such names as the undersigned may request by
written notice delivered to the Company not less than five full business days
prior to the Delivery Date. If no request is received, the Securities will be
registered in the name of the undersigned and issued in a denomination equal to
the aggregate principal amount of Securities to be purchased by the undersigned
on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment
for Securities on the Delivery Date, and the obligation of the Company to sell
and deliver Securities on the Delivery Date, shall be subject to the conditions
(and neither party shall incur any liability by reason of the failure thereof)
that (1) the purchase of Securities to be made by the undersigned, which
purchase the undersigned represents is not prohibited on the date hereof, shall
not on the Delivery Date be prohibited under the laws of the jurisdiction to
which the undersigned is subject, and (2) the Company, on or before the Delivery
Date, shall have sold to certain underwriters (the "Underwriters") such
principal amount of the Securities as is to be sold to them pursuant to the
Underwriting Agreement referred to in the Final Prospectus mentioned above, less
any Securities sold pursuant to delayed delivery contracts. Promptly after
completion of such sale to the Underwriters, the Company will mail or deliver to
the undersigned at its address set forth below notice to such effect,
accompanied by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith. The obligation of the undersigned to take
delivery of and make payment for the Securities, and the obligation of the
Company to cause the Securities to be sold and delivered, shall not be affected
by the failure of any purchaser to take delivery of and make payment for the
Securities pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon the
parties hereto and their respective successors, but will not be assignable by
either party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is requested that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
Very truly yours,
-----------------------------------------
(Name of Purchaser)
By---------------------------------------
(Signature and Title of Officer)
-----------------------------------------
(Address)
-----------------------------------------
(Taxpayer Identification Number)
Accepted:
Willamette Industries, Inc.
By ------------------------
(Authorized Signature)