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EXHIBIT 1.1
________ SHARES
PLUM CREEK TIMBER COMPANY, INC.
COMMON STOCK, PAR VALUE $0.01 PER SHARE
UNDERWRITING AGREEMENT
_________________, 1999
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_________________, 1999
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇, Sachs & Co.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
Plum Creek Timber Company, Inc., a Delaware corporation (the "COMPANY"),
proposes to issue and sell to the several Underwriters (as defined below)
_______ shares of its common stock, par value $0.01 per share (the "FIRM
SHARES").
It is understood that, subject to the conditions hereinafter stated,
_______ Firm Shares (the "FIRM SHARES") will be sold to the several Underwriters
named in Schedule I hereto (the "UNDERWRITERS") in connection with the offering
and sale of such Firm Shares in the United States and Canada. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ &
Co. Incorporated, ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated and
▇▇▇▇▇▇▇, Sachs & Co. shall act as representatives (the "REPRESENTATIVES") of the
several Underwriters.
The Company also proposes to issue and sell to the several Underwriters
not more than an additional _______ shares of its common stock, par value $0.01
per share (the "ADDITIONAL SHARES"), if and to the extent that the
Representatives shall have determined to exercise, on behalf of the
Underwriters, the right to purchase such shares of common stock granted to the
Underwriters in Section 2 hereof. The Firm Shares and the Additional Shares are
hereinafter collectively referred to as the "SHARES". The shares of common
stock, par value $0.01 per share, of the Company to be outstanding after giving
effect to the sales contemplated hereby are hereinafter referred to as the
"COMMON STOCK".
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement relating to the Shares. The registration
statement contains a prospectus to be used in connection with the offering and
sale of the Shares. The registration statement as amended at the time it becomes
effective, including the information (if any) deemed to be part of the
registration statement at the time of effectiveness pursuant to Rule 430A under
the Securities Act of 1933, as amended (the "SECURITIES ACT"), is hereinafter
referred to as the "REGISTRATION STATEMENT"; the prospectus in the form first
used to confirm sales of Shares is hereinafter referred to as the "PROSPECTUS".
If the Company has filed an abbreviated registration statement to register
additional shares of Common Stock pursuant to Rule 462(b) under the Securities
Act (the "RULE 462 REGISTRATION STATEMENT"), then any reference herein to the
term "Registration Statement" shall be deemed to include such Rule 462
Registration
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Statement. All references herein to the Registration Statement and the
Prospectus include the documents incorporated therein by reference.
1. Representations and Warranties. The Company represents and
warrants to and agrees with each of the Underwriters that:
(a) The Registration Statement has become effective; no stop
order suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the Company's knowledge, threatened by the Commission.
(b) (i) Each document, if any, filed or to be filed pursuant to
the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") and
incorporated by reference in the Prospectus complied or will comply when
so filed in all material respects with the Exchange Act and the
applicable rules and regulations of the Commission thereunder, (ii) the
Registration Statement, when it became effective, did not contain and,
as amended or supplemented, if applicable, will not contain any 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) the Registration Statement and the Prospectus comply
and, as amended or supplemented, if applicable, will comply in all
material respects with the Securities Act and the applicable rules and
regulations of the Commission thereunder and (iv) the Prospectus does
not contain and, as amended or supplemented, if applicable, will not
contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading, except
that the representations and warranties set forth in this paragraph do
not apply to statements or omissions in the Registration Statement or
the Prospectus based upon information relating to any Underwriter
furnished to the Company in writing by such Underwriter through you
expressly for use therein.
(c) The Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement) and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so qualified
or be in good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly organized, is
validly existing in good standing under the laws of the jurisdiction of
its organization, has the organizational power and authority to own its
property and to conduct its business as described in the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement) and is duly qualified to transact business and
is in good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to
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be so qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole; all of the
equity interests of each subsidiary of the Company have been duly and
validly authorized (if applicable) and issued, are fully paid and
non-assessable (if applicable) and are, except as set forth in the
Registration Statement and the Prospectus (exclusive of any amendments
or supplements thereto subsequent to the date of this Agreement), owned
directly or indirectly, by the Company, free and clear of all liens,
encumbrances, equities or claims.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The authorized capital stock of the Company conforms as to
legal matters to the description thereof contained in the Prospectus.
(g) The shares of Common Stock outstanding prior to the issuance
of the Shares have been duly authorized and are validly issued, fully
paid and non-assessable.
(h) The Shares have been duly authorized and, when issued and
delivered in accordance with the terms of this Agreement, will be
validly issued, fully paid and non-assessable, and the issuance of such
Shares will not be subject to any preemptive or similar rights arising
under the certificate of incorporation or by-laws of the Company or the
General Corporation Law of the State of Delaware (the "DGCL") or, to the
Company's knowledge, otherwise.
(i) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement will
not contravene any provision of applicable law or the certificate of
incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any of its subsidiaries, and no
consent, approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, except such as may be
required by the securities or Blue Sky laws of the various jurisdictions
in connection with the offer and sale of the Shares.
(j) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of this Agreement).
(k) There are no legal or governmental proceedings pending or
threatened to which the Company or any of its subsidiaries is a party or
to which any of the properties of the Company or any of its subsidiaries
is subject that are required to be described in the Registration
Statement or the Prospectus (exclusive of any amendments or supplements
thereto subsequent to the date of this Agreement) and are not so
described or
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any statutes, regulations, contracts or other documents that are
required to be described in the Registration Statement or the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the
date of this Agreement) or to be filed as exhibits to the Registration
Statement that are not described or filed as required.
(l) Each preliminary 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 Securities Act, complied when so
filed in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder.
(m) The Company is not and, after giving effect to the offering
and sale of the Shares and the application of the proceeds thereof as
described in the Prospectus, will not be an "investment company" as such
term is defined in the Investment Company Act of 1940, as amended.
(n) Other than as disclosed in the Registration Statement and the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), the Company and its
subsidiaries (i) are in compliance with any and all applicable foreign,
federal, state and local laws and regulations relating to the protection
of human health and safety, the environment or hazardous or toxic
substances or wastes, pollutants or contaminants ("ENVIRONMENTAL LAWS"),
(ii) have received all permits, licenses or other approvals required of
them under applicable Environmental Laws to conduct their respective
businesses and (iii) are in compliance with all terms and conditions of
any such permit, license or approval, except where such noncompliance
with Environmental Laws, failure to receive required permits, licenses
or other approvals or failure to comply with the terms and conditions of
such permits, licenses or approvals would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(o) Other than as disclosed in the Registration Statement and the
Prospectus (exclusive of any amendments or supplements thereto
subsequent to the date of this Agreement), there are no costs or
liabilities associated with Environmental Laws (including, without
limitation, any capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any
permit, license or approval, any related constraints on operating
activities and any potential liabilities to third parties) which would,
singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(p) 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 Securities Act with
respect to any securities of the Company or to require the Company to
include such securities with the Shares registered pursuant to the
Registration Statement, except for a Registration Rights Agreement
between Plum Creek Timber Company, Inc. and Plum Creek Advisory Partners
I, LP, dated July 1, 1999, and a Registration Rights Agreement between
Plum Creek Timber Company, Inc. and Plum Creek Management Company
Intermediate Holdings, LP, dated July 1, 1999.
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(q) 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 consummation of the transaction contemplated in the
Prospectus, in a manner that has allowed it and will allow it to qualify
as a REIT. The Company will elect to be taxable as a REIT on its federal
income tax return (and on any appropriate state tax return) for the
taxable year ending December 31, 1999.
(r) The Company's disposal of timber pursuant to timber cutting
contracts will constitute disposals of timber with a retained economic
interest within the meaning of Section 631(b) of the Code.
(s) The Company is eligible to use a Form S-3 registration
statement under the Securities Act.
(t) The outstanding shares of Common Stock are listed on the New
York Stock Exchange (the "NYSE") and the Shares have been approved for
listing, subject to official notice of issuance, on the NYSE.
(u) All disclosure regarding year 2000 compliance that is
required to be described in a Form S-3 registration statement under the
Securities Act (including disclosures required by Staff Legal Bulletin
▇▇. ▇, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇. ▇▇-▇▇▇▇ (July 29, 1998) and SEC Release No.
33-7609 (November 9, 1998)) has been included or incorporated by
reference in the Registration Statement and the Prospectus. Other than
as disclosed in the Registration Statement and the Prospectus, the
Company and its subsidiaries (i) will not incur significant operating
expenses or costs to ensure that their operating and information systems
will be year 2000 compliant ("Y2K COMPLIANT"), (ii) will not experience
a material adverse effect on the condition, financial or otherwise, or
in the earnings, business, operations or business prospects of the
Company and its subsidiaries, taken as a whole, whether or not arising
in the ordinary course of business, from the failure to become Y2K
Compliant and (iii) reasonably believes, after due inquiry, that the
suppliers, vendors, customers or other material third parties used or
served by the Company and its subsidiaries are or will be Y2K Compliant
in a timely manner, except to the extent that a failure to become Y2K
Compliant by any supplier, vendor, customer or material third party
would not have a material adverse effect on the condition, financial or
otherwise, or in the earnings, business, operations or business
prospects of the Company and its subsidiaries, taken as a whole, whether
or not arising in the ordinary course of business.
2. Agreements to Sell and Purchase. The Company hereby agrees to
sell to the several Underwriters, and each Underwriter, upon the basis of the
representations and warranties herein contained, but subject to the conditions
hereinafter stated, agrees, severally and not jointly, to purchase from the
Company the respective numbers of Firm Shares set forth in Schedule I hereto
opposite its names at _______ a share ("PURCHASE PRICE").
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On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company agrees to sell
to the Underwriters the Additional Shares, and the Underwriters shall have a
one-time right to purchase, severally and not jointly, up to _______ Additional
Shares at the Purchase Price; provided, however, that the amount paid by the
Underwriters for any Additional Shares shall be reduced by an amount per share
equal to any dividends declared by the Company and payable on the Firm Shares
but not payable on such Additional Shares. If the Representatives, on behalf of
the Underwriters, elect to exercise such option, the Representatives shall so
notify the Company in writing not later than 30 days after the date of this
Agreement, which notice shall specify the number of Additional Shares to be
purchased by the Underwriters and the date on which such shares are to be
purchased. Such date may be the same as the Closing Date (as defined below) but
not earlier than the Closing Date nor later than ten business days after the
date of such notice. Additional Shares may be purchased as provided in Section 4
hereof solely for the purpose of covering over-allotments made in connection
with the offering of the Firm Shares. If any Additional Shares are to be
purchased, each Underwriter agrees, severally and not jointly, to purchase the
number of Additional Shares (subject to such adjustments to eliminate fractional
shares as the Representatives may determine) that bears the same proportion to
the total number of Additional Shares to be purchased as the number of Firm
Shares set forth in Schedule I hereto opposite the name of such Underwriter
bears to the total number of Firm Shares.
The Company hereby agrees that, without the prior written consent of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated and ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated on behalf of the Underwriters, it will not, during the period
ending 90 days after the date of the Prospectus, (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, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock or (ii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of
the Common Stock, whether any such 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 Shares to
be sold hereunder, (B) the issuance by the Company of shares of Common Stock
upon the exercise of an option or warrant or the conversion of a security
outstanding on the date hereof of which the Underwriters have been advised in
writing or is disclosed in the Registration Statement or the Prospectus
(exclusive of any amendments or supplements thereto subsequent to the date of
this Agreement) or (C) transactions by any person other than the Company
relating to shares of Common Stock or other securities acquired in open market
transactions after the completion of the offering of the Shares.
3. Terms of Public Offering. The Company is advised by you that the
Underwriters propose to make a public offering of their respective portions of
the Shares as soon after the Registration Statement and this Agreement have
become effective as in your judgment is advisable. The Company is further
advised by you that the Shares are to be offered to the public initially at
$_______ a share (the "PUBLIC OFFERING PRICE") and to certain dealers selected
by you at a price that represents a concession not in excess of $_______ a share
under the Public Offering Price, and that any Underwriter may allow, and such
dealers may reallow, a concession, not in excess of $_______ a share, to any
Underwriter or to certain other dealers.
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4. Payment and Delivery. Payment for the Firm Shares shall be made
to the Company in Federal or other funds immediately available in New York City
against delivery of such Firm Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on ___________, 1999, or at such
other time on the same or such other date, not later than __________, 1999, as
shall be designated in writing by you. The time and date of such payment are
hereinafter referred to as the "CLOSING DATE".
Payment for any Additional Shares shall be made to the Company in
Federal or other funds immediately available in New York City against delivery
of such Additional Shares for the respective accounts of the several
Underwriters at 10:00 a.m., New York City time, on the date specified in the
notice described in Section 2 or at such other time on the same or on such other
date, in any event not later than __________, 1999, as shall be designated in
writing by the U.S. Representatives. The time and date of such payment are
hereinafter referred to as the "OPTION CLOSING DATE".
Certificates for the Firm Shares and Additional Shares shall be in
definitive form and registered in such names and in such denominations as you
shall request in writing not later than one full business day prior to the
Closing Date or the Option Closing Date, as the case may be. The certificates
evidencing the Firm Shares and Additional Shares shall be delivered to you on
the Closing Date or the Option Closing Date, as the case may be, for the
respective accounts of the several Underwriters, with any transfer taxes payable
in connection with the transfer of the Shares to the Underwriters duly paid,
against payment of the Purchase Price therefor.
5. Conditions to the Underwriters' Obligations. The obligations of
the Company to sell the Shares to the Underwriters and the several obligations
of the Underwriters to purchase and pay for the Shares on the Closing Date are
subject to the condition that the Registration Statement shall have become
effective not later than the date hereof.
The several obligations of the Underwriters are subject to the following
further conditions:
(a) Subsequent to the execution and delivery of this Agreement
and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole,
from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement) that, in your judgment, is material and adverse and
that makes it, in your judgment,
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impracticable to market the Shares on the terms and in the manner
contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in Section 5(a)(i) above and to
the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing Date
and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or satisfied
hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon the
best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP, special outside
counsel for the Company, dated the Closing Date, to the effect that:
(i) The Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of
Delaware. The opinion set forth in this paragraph (i) with
respect to the Company being validly existing and in good
standing is based solely upon such counsel's review of a
certificate of the Secretary of State 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 Shares have been duly authorized by the Company
and when delivered to and paid for by the Underwriters in
accordance with the terms of this Agreement, will be validly
issued, fully paid and non-assessable, and will not be subject to
preemptive rights under the Company's certificate of
incorporation or by-laws or under the General Corporation Law of
the State of Delaware.
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
(v) The execution and delivery by the Company of this
Agreement and the performance by the Company of its obligations
under this Agreement, in accordance with its terms, do not
conflict with the certificate of incorporation or the by-laws of
the Company.
(vi) The execution and delivery by the Company of, and the
performance by the Company of its obligations under this
Agreement do not and will not conflict with or constitute a
violation of any existing Applicable Law (where the term
"APPLICABLE LAW" is defined as the General Corporation Law of the
State of Delaware and the federal laws of the United States of
America, in each case, which in the experience of such counsel,
is normally applicable to transactions of the type contemplated
by this Agreement, but without such
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counsel having made any special investigation with respect to any
other laws (provided that the term "APPLICABLE LAWS" does not
include (i) the rules and regulations of the National Association
of Securities Dealers, Inc., (ii) United States federal and state
securities or blue sky laws, (iii) antifraud laws, or (iv) a law,
rule or regulation that may have become applicable to the Company
as a result of the Underwriters' involvement with the
transactions contemplated by this Agreement or because of any
facts specifically pertaining to the Underwriters); provided,
that such counsel expresses no opinion as to obligations with
respect to indemnification or contribution.
(vii) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement do not require any Governmental Approval (where the
term "GOVERNMENTAL APPROVAL" is defined as any consent, approval,
license, authorization or validation of, or filing, recording or
registration with, any governmental authority pursuant to
Applicable Laws.
(viii) The statements (a) in the Prospectus under the
captions "Description of Capital Stock" and "Material Federal
Income Tax Consequences" and (b) in the Registration Statement in
Item 15, in each case insofar as such statements constitute
summaries of legal matters, documents or proceedings referred to
therein, fairly summarize the matters referred to therein in all
material respects.
(ix) The Company is not and, after giving effect to the
offering and sale of the Shares and the application of the
proceeds thereof as described in the Prospectus, will not be
subject to regulation and registration as an "investment company"
required to be registered under the Investment Company Act of
1940, as amended.
(x) Each of the Registration Statement, as of its effective
date, and the Prospectus, as of its date, appeared on its face to
be appropriately responsive in all material respects to the
requirements of the Securities Act and the general rules and
regulations under the Securities Act, except that in each case,
such counsel expresses no opinion as to the financial statements,
schedules and other financial and statistical data included or
incorporated by reference therein or excluded therefrom, and,
except to the extent stated in paragraph (viii) hereof, such
counsel does not assume any responsibility for the accuracy,
completeness or fairness of the statements contained in the
Registration Statement, the Prospectus or any of the documents
and information incorporated by reference therein (the
"INCORPORATED DOCUMENTS").
(xi) Under current United States federal income tax law,
commencing with the Company's taxable year ending on December 31,
1999, the Company will be organized in conformity with the
requirements for qualification as a REIT under the Code, and the
Company's proposed method of operation will enable it to meet the
requirements for qualification as a REIT.
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In addition, such counsel has participated in conferences
with officers and other representatives of the Company,
representatives of the independent accountants of the Company and
the Underwriters and counsel to the Underwriters at which the
contents of the Registration Statement and the 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 or the Prospectus and has made no
independent check or verification thereof, except to the extent
stated in paragraph (viii) hereof, on the basis of the foregoing,
no facts have come to the attention of such counsel that has led
such counsel to believe that the Registration Statement, at the
time it became effective contained an untrue statement of a
material fact or omitted or omits 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 such counsel expresses no opinion or belief with
respect to the financial statements, schedules and other
financial and statistical data included therein or excluded
therefrom, or incorporated, or deemed to be incorporated, by
reference therein or the exhibits to the Registration Statement.
(d) 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) Based solely upon certificates from the applicable
Secretary of State, the Company is qualified to do business and
in good standing as a foreign corporation in each jurisdiction in
which the conduct of its business or its ownership or leasing of
property requires such qualification, except to the extent that
the failure to be in good standing or to be so qualified could
not reasonably be expected to have a material adverse effect.
(ii) The Company's subsidiaries that are listed on a
schedule to such counsel's opinion under the heading "Delaware
Corporations" (collectively, the "DELAWARE CORPORATIONS") have
been duly incorporated and are corporations validly existing and
in good standing under the laws of the State of Delaware. The
opinion set forth in this paragraph (ii) with respect to the
Delaware Corporations being validly existing and in good standing
is based solely upon such counsel's review of the certificates of
the Secretary of State of the State of Delaware.
(iii) The Company's subsidiaries that are listed on a
schedule to such counsel's opinion under the heading "Delaware
Partnerships" (collectively, the "DELAWARE PARTNERSHIPS") have
been duly formed and are limited partnerships legally existing
and in good standing under the laws of the State of Delaware. The
opinion set forth in this paragraph (iii) with respect to the
Delaware
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Partnerships being legally existing and in good standing is based
solely upon such counsel's review of the certificates of the
Secretary of State of the State of Delaware.
(iv) The Company's subsidiaries that are listed on a
schedule to such counsel's opinion under the heading "Delaware
LLCs" (collectively, the "DELAWARE LLCS") have been duly formed
and are limited liability companies legally existing and in good
standing under the laws of the State of Delaware. The opinion set
forth in this paragraph (iv) with respect to the Delaware LLCs
being legally existing and in good standing is based solely upon
such counsel's review of the certificates of the Secretary of
State of the State of Delaware.
(v) Based solely upon certificates from the applicable
Secretary of State, each subsidiary of the Company is qualified
to do business and is in good standing as a foreign corporation,
partnership or limited liability company, as the case may be,
under the laws of each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be in
good standing or to be so qualified could not reasonably be
expected to have a material adverse effect on the Company.
(vi) All of the shares of capital stock issued by the
Delaware Corporations were duly authorized and validly issued and
are fully paid and non-assessable. The record owners of the
outstanding shares of the capital stock issued by the Delaware
Corporations are listed on a schedule to such counsel's opinion.
The shares held by the Company, and to the best of such counsel's
knowledge, the shares held by individuals, are held free and
clear of all consensual liens, encumbrances, equities or claims,
other than liens to secure indebtedness disclosed in the
Prospectus.
(vii) All of the limited liability company membership
interests issued by the Delaware LLCs have been authorized for
issuance and represent valid limited liability company membership
interests in the respective limited liability companies. The
record owners of the outstanding limited liability company
membership interests issued by the Delaware LLCs are listed on a
schedule to such counsel's opinion. Such limited liability
company membership interests are held free and clear of all
consensual liens, encumbrances, equities or claims, other than
liens to secure indebtedness disclosed in the Prospectus.
(viii) All of the limited partnership interests issued by
the Delaware Partnerships have been authorized for issuance and
represent valid limited partnership interests in the respective
partnerships. The record owners of the limited partnership
interests issued by the Delaware Partnerships are listed on a
schedule to such counsel's opinion. Such limited partnership
interests are held free and clear of all consensual liens,
encumbrances, equities or claims, other than liens to secure
indebtedness disclosed in the Prospectus.
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(ix) All of the Company's shares of Common Stock outstanding
prior to the issuance of the Shares have been duly authorized and
validly issued and are fully paid and non-assessable.
(x) The execution and delivery by the Company of this
Agreement and the performance by the Company of its obligations
under this Agreement, in accordance with its terms, do not (x)
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, constitute a violation of
or a default under any of the Applicable Contracts (where the
term "APPLICABLE CONTRACTS" is defined as the contracts and
agreements listed on a schedule to such counsel's opinion which
schedule shall include any currently existing contracts listed as
exhibits to the Company's Exchange Act filings), or (y) to such
counsel's knowledge, contravene any judgment, order or decree of
any governmental body, agency or court having jurisdiction over
the Company or its subsidiaries (except, in each case, for such
conflicts, breaches or defaults that, individually or in the
aggregate, could not reasonably be expected to have a material
adverse effect). Such counsel does not express any opinion,
however, as to the enforceability of this Agreement or any of the
Applicable Contracts.
(xi) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement do not require any Governmental Approval (where the
term "GOVERNMENTAL APPROVAL" is defined as any consent, approval,
license, authorization or validation of, or filing, recording or
registration with, any governmental authority pursuant to
Applicable Laws, where the term "APPLICABLE LAWS" is defined as
those laws, rules and regulations of the State of Washington and
the federal laws of the United States of America, in each case,
which in the experience of such counsel, is normally applicable
to transactions of the type contemplated by this Agreement;
provided that the term "APPLICABLE LAWS" does not include (i) the
rules and regulations of the National Association of Securities
Dealers, Inc., (ii) United States federal and state securities or
blue sky laws, (iii) antifraud laws, or (iv) a law, rule or
regulation that may have become applicable to the Company as a
result of the Underwriters' involvement with the transactions
contemplated by this Agreement or because of any facts
specifically pertaining to the Underwriters); provided, that such
counsel expresses no opinion as to obligations with respect to
indemnification or contribution.
(xii) The statements in the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1998, as amended by
the Company's Annual Report on Form 10-K/A (collectively, the
"1998 FORM 10-K") as supplemented by the Prospectus under the
caption "Legal Proceedings" and in the Prospectus under the
caption "Federal and State Regulations," insofar as such
statements constitute summaries of legal matters,
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documents or proceedings referred to therein, present the
information called for with respect to such legal matters,
documents and proceedings and fairly summarize the matters
referred to therein in all material respects.
(xiii) To such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened to which the
Company or any of its subsidiaries is a party or to which any of
the properties of the Company or any of its subsidiaries is
subject (i) which are required to be described in the
Registration Statement or the Prospectus or the documents
incorporated by reference in the Registration Statement or
Prospectus and are not so described or (ii) which could
reasonably be expected to have a material adverse effect on the
condition, financial or otherwise, or on the earnings, business
or operations of the Company and its subsidiaries, taken as a
whole, or on the power or ability of the Company to perform its
obligations under this Agreement or to consummate any of the
transactions contemplated by this Agreement. To such counsel's
knowledge, there are no statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or Prospectus or to be filed as exhibits to the
Registration Statement that are not described or filed as
required.
(xiv) 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, could not reasonably be
expected to have a material adverse effect on the Company, or 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.
(xv) Each document filed pursuant to the Exchange Act and
incorporated by reference in the Registration Statement and the
Prospectus, at the time it was filed or last amended on or prior
to the date of this Agreement, appeared on its face to be
appropriately responsive in all material respects to the
requirements of the Exchange Act and all applicable rules and
regulations of the Commission thereunder, except that in each
case, such counsel expresses no opinion as to the financial
statements, schedules or other financial and statistical data
included or incorporated by reference therein or excluded
therefrom, and such counsel does not assume any responsibility
for the accuracy, completeness or fairness of the statements
contained therein.
Such counsel or such counsel's staff have participated in
conferences with officers and other representatives of the
Company and representatives of the independent accountants of the
Company, the Company's outside counsel and the Underwriters and
counsel to the Underwriters at which the contents of the
Registration Statement and the 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
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Registration Statement or the Prospectus and has made no
independent check or verification thereof, except to the extent
stated in paragraph (xii) hereof, on the basis of the foregoing,
no facts have come to such counsel's attention that have led such
counsel to believe that the Registration Statement, at the time
it became effective contained an untrue statement of a material
fact or omitted or omits 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 such counsel expresses no opinion or belief with
respect to the financial statements, schedules and other
financial and statistical data included therein or excluded
therefrom, or incorporated, or deemed to be incorporated, by
reference therein.
Whenever a statement in such counsel's opinion is qualified
by "to such counsel's knowledge," it is intended to indicate
that, during the time that such counsel has been employed by the
Company, no information that would give such counsel current,
actual knowledge of the inaccuracy of such statement has come to
such counsel's attention. However, such counsel has not
undertaken any independent investigation to determine the
accuracy of such statement, and any limited inquiry undertaken by
such counsel during the preparation of the opinion letter
pursuant to this Section 5(d) should not be regarded as such an
investigation; no inference as to such counsel's knowledge of any
matters bearing on the accuracy of any such statement should be
drawn from the fact that such counsel is the Vice President,
General Counsel and Secretary of the Company. Without limiting
the foregoing, such counsel has not searched any computer or
electronic databases or the dockets of any court, administrative
body, agency or other filing office in any jurisdiction.
(e) The Underwriters shall have received on the Closing Date an
opinion of ▇▇▇▇▇ & Wood LLP, counsel for the Underwriters, dated the
Closing Date, covering the matters referred to in Sections 5(c)(iii),
5(c)(iv), 5(c)(viii) (but only as to the statements in the Prospectus
under "Description of Capital Stock" and "Underwriters") and the last
paragraph of Section 5(c).
The opinion of Skadden, Arps, Slate, ▇▇▇▇▇▇▇ & ▇▇▇▇ LLP described
in Section 5(c) above and the opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq. described
in Section 5(d) above each shall be rendered to the Underwriters at the
request of the Company and shall so state therein.
(f) The Underwriters shall have received, on each of the date
hereof and the Closing Date, a letter dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory to
the Underwriters, from PricewaterhouseCoopers LLP, independent public
accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in the Registration
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Statement and the Prospectus; provided that the letter delivered on the
Closing Date shall use a "cut-off date" not earlier than the date
hereof.
(g) The "lock-up" agreements, each substantially in the form of
Exhibit A hereto, between you and the stockholders, officers and
directors of the Company listed on Schedule II hereto relating to sales
and certain other dispositions of shares of Common Stock or certain
other securities, delivered to you on or before the date hereof, shall
be in full force and effect on the Closing Date.
(h) The several obligations of the Underwriters to purchase
Additional Shares hereunder are subject to the delivery to the
Representatives on the Option Closing Date of such documents, opinions
and "comfort letters", as they may reasonably request with respect to
the good standing of the Company, the due authorization and issuance of
the Additional Shares and other matters related to the issuance of the
Additional Shares.
6. Covenants of the Company. In further consideration of the
agreements of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish to you, without charge, three conformed copies of
the Registration Statement (including exhibits thereto and documents
incorporated by reference) and for delivery to each other Underwriter a
conformed copy of the Registration Statement (without exhibits thereto,
but including, upon request, documents incorporated by reference) and to
furnish to you in New York City, without charge, prior to 3:00 p.m. New
York City time on the business day next succeeding the date of this
Agreement and during the period mentioned in Section 6(c) below, as many
copies of the Prospectus, any documents incorporated by reference and
any supplements and amendments thereto or to the Registration Statement
as you may reasonably request. The terms "supplement" and "amendment" or
"amend" as used in this Agreement shall include all documents
subsequently filed by the Company with the Commission pursuant to the
Exchange Act that are deemed to be incorporated by reference in the
Prospectus.
(b) Before amending or supplementing the Registration Statement
or the Prospectus, to furnish to you a copy of each such proposed
amendment or supplement and not to file any such proposed amendment or
supplement to which you reasonably object promptly after reasonable
notice thereof, and to file with the Commission within the applicable
period specified in Rule 424(b) under the Securities Act any prospectus
required to be filed pursuant to such Rule.
(c) If, during the period after the first date of the public
offering of the Shares as in the opinion of counsel for the Underwriters
(which shall be counsel from a nationally recognized law firm) the
Prospectus is required by law to be delivered in connection with sales
by an Underwriter or dealer, any event shall occur or condition exist as
a result of which it is necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if, in the opinion of counsel for the Underwriters, it is
necessary to amend or supplement the Prospectus to comply with
applicable law, forthwith to prepare, file with the Commission and
furnish, at its own
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expense, to the Underwriters and to the dealers (whose names and
addresses you will furnish to the Company) to which Shares may have been
sold by you on behalf of the Underwriters and to any other dealers upon
request, either amendments or supplements to the Prospectus so that the
statements in the Prospectus as so amended or supplemented will not, in
the light of the circumstances when the Prospectus is delivered to a
purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Shares for offer and sale under
the securities or Blue Sky laws of such jurisdictions as you shall
reasonably request.
(e) To make generally available to the Company's security holders
and to you as soon as practicable an earnings statement covering the
twelve-month period ending December 31, 2000 that satisfies the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder.
(f) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees, disbursements
and expenses of the Company's counsel and the Company's accountants in
connection with the registration and delivery of the Shares under the
Securities Act and all other fees or expenses in connection with the
preparation and filing of the Registration Statement, any preliminary
prospectus, the Prospectus and amendments and supplements to any of the
foregoing, including all printing costs associated therewith, and the
mailing and delivering of copies thereof to the Underwriters and
dealers, in the quantities hereinabove specified, (ii) all costs and
expenses related to the transfer and delivery of the Shares to the
Underwriters, including any transfer or other taxes payable thereon,
(iii) the cost of printing or producing any Blue Sky or Legal Investment
memorandum in connection with the offer and sale of the Shares under
state securities laws and all expenses in connection with the
qualification of the Shares for offer and sale under state securities
laws as provided in Section 6(d) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky
or Legal Investment memorandum, (iv) all filing fees and the reasonable
fees and disbursements of counsel to the Underwriters incurred in
connection with the review and qualification of the offering of the
Shares by the National Association of Securities Dealers, Inc., up to an
aggregate of $15,000, (v) all costs and expenses incident to listing the
Shares on the NYSE, (vi) the cost of printing certificates representing
the Shares, (vii) the costs and charges of any transfer agent, registrar
or depositary, (viii) 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 Shares, 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, and (ix) all other costs and expenses
incident to the performance of the obligations of the Company hereunder
for which provision is not
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otherwise made in this Section. It is understood, however, that except
as provided in this Section, Section 7 entitled "Indemnity and
Contribution", and the last paragraph of Section 9 below, the
Underwriters will pay all of their costs and expenses, including fees
and disbursements of their counsel, stock transfer taxes payable on
resale of any of the Shares by them and any advertising expenses
connected with any offers they may make.
7. Indemnity 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 either Section 15 of the Securities Act or Section 20 of
the Exchange Act, from and against any and all losses, claims, damages
and liabilities (including, without limitation, any reasonable legal or
other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement
or alleged untrue statement of a material fact contained in the
Registration Statement or any amendment thereof, any preliminary
prospectus or the Prospectus (as amended or supplemented if the Company
shall have furnished any amendments or supplements thereto), or caused
by any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements
therein not misleading, except insofar as such losses, claims, damages
or liabilities are caused by any such untrue statement or omission or
alleged untrue statement or omission based upon information relating to
any Underwriter furnished to the Company in writing by such Underwriter
through you expressly for use therein.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers who
sign the Registration Statement and each person, if any, who controls
the Company within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act to the same extent as the
foregoing indemnity from the Company to such Underwriter, but only with
reference to information relating to such Underwriter furnished to the
Company in writing by such Underwriter through you expressly for use in
the Registration Statement, any preliminary prospectus, the Prospectus
or any amendments or supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 7(a) or 7(b), such
person (the "INDEMNIFIED PARTY") shall promptly notify the person
against whom such indemnity may be sought (the "INDEMNIFYING PARTY") in
writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified
party to represent the indemnified party and any others the indemnifying
party may designate in such proceeding and shall pay the fees and
disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the
expense of such indemnified party unless (i) the indemnifying party and
the indemnified party shall have mutually agreed to the retention of
such counsel or (ii) the named parties to any such proceeding (including
any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel
would be inappropriate due to actual or
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potential differing interests between them. It is understood that the
indemnifying party shall not, in respect of the legal expenses of any
indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the fees and
expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. Such firm shall be
designated in writing by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated, in the case
of parties indemnified pursuant to Section 7(a), and by the Company, in
the case of parties indemnified pursuant to Section 7(b). The
indemnifying party shall not be liable for any settlement of any
proceeding effected without its written consent, but if settled with
such consent or if there be a final judgment for the plaintiff, the
indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified
party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by
the second and third sentences of this paragraph and the indemnifying
party is not disputing in good faith the reasonableness of such fees and
expenses of counsel, the indemnifying party agrees that it shall be
liable for any settlement of any proceeding effected without its written
consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii)
such indemnifying party shall not have reimbursed the indemnified party
in accordance with such request prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened
proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional
release of such indemnified party from all liability on claims that are
the subject matter of such proceeding.
(d) To the extent the indemnification provided for in Section
7(a) or 7(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to the
amount paid or payable by such indemnified party as a result of such
losses, claims, damages or liabilities (i) in such proportion as is
appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters on the other hand from the offering of
the Shares or (ii) if the allocation provided by clause 7(d)(i) above is
not permitted by applicable law, in such proportion as is appropriate to
reflect not only the relative benefits referred to in clause 7(d)(i)
above but also the relative fault of the Company on the one hand and of
the Underwriters on the other hand in connection with the statements or
omissions that resulted in such losses, claims, damages or liabilities,
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 hand in connection with the offering of the Shares shall be
deemed to be in the same respective proportions as the net proceeds from
the offering of the Shares (before deducting expenses) received by the
Company and the total underwriting discounts and commissions received by
the Underwriters, in each case as set forth in the table on the cover of
the Prospectus, bear to the aggregate Public Offering Price of the
Shares. The relative fault of the Company on the one hand and the
Underwriters on the other hand
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shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information
supplied by the Company or by the Underwriters and the parties' relative
intent, knowledge, access to information and opportunity to correct or
prevent such statement or omission. The Underwriters' respective
obligations to contribute pursuant to this Section 7 are several in
proportion to the respective number of Shares they have purchased
hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be
just or 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
that does not take account of the equitable considerations referred to
in Section 7(d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to
the limitations set forth above, 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 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the
Shares underwritten by it and distributed to the public were offered to
the public exceeds the amount of any damages that such Underwriter has
otherwise been required to pay by reason of 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
Securities Act) shall be entitled to contribution from any person who
was not guilty of such fraudulent misrepresentation. The remedies
provided for in this Section 7 are not exclusive and shall not limit any
rights or remedies which may otherwise be available to any indemnified
party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 7 and the representations, warranties and other statements of
the Company contained in this Agreement shall remain operative and in
full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any
Underwriter or any person controlling any Underwriter or by or on behalf
of the Company, its officers or directors or any person controlling the
Company and (iii) acceptance of and payment for any of the Shares.
8. Termination. This Agreement shall be subject to termination by
notice given by you to the Company, if (a) after the execution and delivery of
this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock Exchange, the American Stock Exchange, the National Association
of Securities Dealers, Inc., the Chicago Board of Options Exchange, the Chicago
Mercantile Exchange or the Chicago Board of Trade, (ii) trading of any
securities of the Company shall have been suspended on any exchange or in any
over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses
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8(a)(i) through 8(a)(iv), such event, singly or together with any other such
event, makes it, in your judgment, impracticable to market the Shares on the
terms and in the manner contemplated in the Prospectus.
9. Effectiveness; Defaulting Underwriters. This Agreement shall
become effective upon the execution and delivery hereof by the parties hereto.
If, on the Closing Date or the Option Closing Date, as the case may be,
any one or more of the Underwriters shall fail or refuse to purchase Shares that
it has or they have agreed to purchase hereunder on such date, and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate number
of the Shares to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the number of Firm Shares set forth
opposite their respective names in Schedule I bears to the aggregate number of
Firm Shares set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as you may specify, to purchase the
Shares which such defaulting Underwriter or Underwriters agreed but failed or
refused to purchase on such date; provided that in no event shall the number of
Shares that any Underwriter has agreed to purchase pursuant to this Agreement be
increased pursuant to this Section 9 by an amount in excess of one-ninth of such
number of Shares without the written consent of such Underwriter. If, on the
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Firm Shares and the aggregate number of Firm Shares with respect to which such
default occurs is more than one-tenth of the aggregate number of Firm Shares to
be purchased, and arrangements satisfactory to you and the Company for the
purchase of such Firm Shares are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either you or the
Company shall have the right to postpone the Closing Date, but in no event for
longer than seven days, in order that the required changes, if any, in the
Registration Statement and in the Prospectus or in any other documents or
arrangements may be effected. If, on the Option Closing Date, any Underwriter or
Underwriters shall fail or refuse to purchase Additional Shares and the
aggregate number of Additional Shares with respect to which such default occurs
is more than one-tenth of the aggregate number of Additional Shares to be
purchased, the non-defaulting Underwriters shall have the option to (i)
terminate their obligation hereunder to purchase Additional Shares or (ii)
purchase not less than the number of Additional Shares that such non-defaulting
Underwriters would have been obligated to purchase in the absence of such
default. Any action taken under this paragraph shall not relieve any defaulting
Underwriter from liability in respect of any default of such Underwriter under
this Agreement.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such Underwriters as
have so terminated this Agreement with respect to themselves, severally, for all
out-of-pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with this Agreement or
the offering contemplated hereunder.
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10. Counterparts. This Agreement may be signed in two or more
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
11. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
12. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
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Very truly yours,
PLUM CREEK TIMBER COMPANY, INC.
By: ____________________________________
Name:
Title:
Accepted as of the date hereof
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
▇▇▇▇▇▇▇ LYNCH, PIERCE, ▇▇▇▇▇▇ & ▇▇▇▇▇
INCORPORATED
▇▇▇▇▇▇▇, SACHS & CO.
Acting severally on behalf of themselves
and the several Underwriters named in
Schedule I hereto.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
By: _____________________________________
Name:
Title:
22
24
SCHEDULE I
UNDERWRITERS
NUMBER OF FIRM SHARES TO
UNDERWRITER BE PURCHASED
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇, Sachs & Co.
--------------
Total Firm Shares.......................................
==============
25
SCHEDULE II
List of Persons and Entities Delivering Lock-Up Agreements
Pursuant to Section 5(g)
PC Advisory Partners I, L.P.
PC Intermediate Holdings, L.P.
▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇. ▇▇▇▇▇▇
26
EXHIBIT A
[FORM OF LOCK-UP LETTER]
____________, 1999
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated
▇▇▇▇▇▇▇, Sachs & Co.
c/o Morgan ▇▇▇▇▇▇▇ & Co. Incorporated
▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Dear Sirs and Mesdames:
The undersigned understands that ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
("▇▇▇▇▇▇ ▇▇▇▇▇▇▇"), ▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ Incorporated ("▇▇▇▇▇▇▇
▇▇▇▇▇") and ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. ("▇▇▇▇▇▇▇, SACHS") propose to enter into an
Underwriting Agreement (the "UNDERWRITING AGREEMENT") with Plum Creek Timber
Company, Inc., a Delaware corporation (the "COMPANY") providing for the public
offering (the "PUBLIC OFFERING") by the several Underwriters, including ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇▇▇, ▇▇▇▇▇ (the "UNDERWRITERS") of shares (the
"SHARES") of the common stock, par value $0.01 per share, of the Company (the
"COMMON STOCK").
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of ▇▇▇▇▇▇
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ on behalf of the Underwriters, it will not, during the
period commencing on the date hereof and ending 90 days after the date of the
final prospectus relating to the Public Offering (the "PROSPECTUS"), (1) 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, lend, or otherwise transfer or dispose of, directly or indirectly, any
shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock or (2) enter into any swap or other arrangement
that transfers to another, in whole or in part, any of the economic consequences
of ownership of the Common Stock, whether any such transaction described in
clause (1) or (2) 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 sale of any Shares to the Underwriters pursuant to the Underwriting
Agreement or (b) transactions relating to shares of Common Stock or other
securities acquired in open market transactions after the completion of the
Public Offering. In addition, the undersigned agrees that, without the prior
written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇▇ on behalf of the
Underwriters, it will not, during the period commencing on the date hereof and
ending 90 days after the date of the Prospectus, make any demand for or exercise
27
any right with respect to, the registration of any shares of Common Stock or any
security convertible into or exercisable or exchangeable for Common Stock.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be made
pursuant to an Underwriting Agreement, the terms of which are subject to
negotiation between the Company and the Underwriters.
Very truly yours,
_____________________________________
(Signature)
_____________________________________
(Name)
_____________________________________
(Address)
2
