EXHIBIT 1(a)
UNDERWRITING AGREEMENT
_, 200_
Weyerhaeuser Company
▇.▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Sirs and Mesdames:
We (the "MANAGERS") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters, as the case may be, being herein called the "UNDERWRITERS"), and
we understand that Weyerhaeuser Company, a Washington corporation (the
"COMPANY"), proposes to issue and sell $_,000,000 aggregate principal amount of
its _% Notes/Debentures due _ (the "OFFERED SECURITIES"). The Offered Securities
will be issued pursuant to the provisions of an Indenture dated as of April 1,
1986, as amended and supplemented by the First Supplemental Indenture thereto
dated as of February 15, 1991 and the Second Supplemental Indenture thereto
dated as of February 1, 1993 (as so amended and supplemented, the "INDENTURE"),
each between the Company and The Chase Manhattan Bank (formerly Chemical Bank),
as trustee (the "TRUSTEE").
Subject to the terms and conditions set forth and incorporated by
reference herein, the Company hereby agrees to sell to the several Underwriters,
and each Underwriter agrees, severally and not jointly, to purchase from the
Company the respective principal amount of Offered Securities set forth below
opposite its name at a purchase price equal to _% of the principal amount of
such Offered Securities [INSERT IF APPLICABLE--, plus accrued and unpaid
interest from _, 200_].
Principal Amount of
Name Offered Securities
---- -------------------
-................................................. $
-.................................................
-.................................................
-.................................................
------------------
Total......................................... $
The Underwriters will pay for such Offered Securities in Federal or
other immediately available funds upon delivery thereof to [NAME OF LEAD
MANAGER] in New York, New York at 10:00 A.M. (New York time) on_, 200_ or at
such other time, not later than 10:00 A.M. (New York time) on_, 200_, as shall
be jointly designated by the Managers and the Company.
The Offered Securities shall have the terms set forth in the Prospectus
dated_, 2001 (the "Base Prospectus") and the Prospectus Supplement dated_, 200_
(the "Prospectus Supplement"), including the following:
1
Maturity Date: _
Interest Rate: _% per annum, accruing from_, 200_
Interest Payment Dates: _ and_, commencing_, 200_
[INSERT IF OFFERED SECURITIES ARE REDEEMABLE--] The Offered Securities
are subject to redemption, in whole or from time to time in part, at the option
of the Company at the redemption prices calculated as provided in the Prospectus
Supplement. [INSERT IF OFFERED SECURITIES WILL BE ISSUED IN BOOK-ENTRY FORM--]
The Offered Securities will be issued in the form of one or more global
securities registered in the name of Cede & Co., nominee for Depository Trust
Company ("DTC"), and deposited with a custodian on behalf of DTC.
All provisions contained in the document entitled Weyerhaeuser Company
Underwriting Agreement Standard Provisions (Debt) (_, 200_) (the "Standard
Provisions"), a copy of which is attached hereto, are herein incorporated by
reference in their entirety and shall be deemed to be a part of this Agreement
to the same extent as if such provisions had been set forth in full herein,
except that the term "MANAGER" as used therein shall, for purposes of this
Agreement (including the Standard Provisions), mean [INSERT NAMES OF MANAGING
UNDERWRITERS].
[SIGNATURE PAGE FOLLOWS]
2
Very truly yours,
-
Acting severally on behalf of
themselves and the several Underwriters
named herein.
By: _
By: ____________________________________
Title:
By: _
By: ____________________________________
Title:
Accepted and agreed as of the date
first written above.
WEYERHAEUSER COMPANY
By: __________________________________
Name:
Title:
3
WEYERHAEUSER COMPANY
(a Washington corporation)
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT)
(_, 200_)
From time to time, Weyerhaeuser Company, a Washington corporation (the
"COMPANY"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to the several underwriters named therein. The
standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "UNDERWRITING AGREEMENT"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as this "AGREEMENT". Unless otherwise defined herein, terms defined
in the Underwriting Agreement are used herein as therein defined.
I.
The Company proposes to issue from time to time debt securities (the
"SECURITIES") to be issued pursuant to the provisions of the Indenture dated as
of April 1, 1986, as amended and supplemented by the First Supplemental
Indenture thereto dated as of February 15, 1991 and the Second Supplemental
Indenture thereto dated as of February 1, 1993 (as so amended and supplemented,
the "INDENTURE"), each between the Company and The Chase Manhattan Bank
(formerly Chemical Bank), as trustee (the "TRUSTEE"). The Securities will have
varying designations, maturities, rates and times of payment of interest,
selling prices, redemption terms and other terms.
The Company has filed with the Securities and Exchange Commission (the
"COMMISSION") a registration statement (No. 333-_) including a prospectus
relating to the Securities and has filed or will file with the Commission a
prospectus supplement or supplements specifically relating to the Offered
Securities pursuant to Rule 424 under the Securities Act of 1933. The term
"REGISTRATION STATEMENT" means the registration statement as amended to the date
of the Underwriting Agreement. The term "BASIC PROSPECTUS" means the prospectus
dated _, 2001 relating to the Securities in the form first provided to the
Underwriters for use in confirming sales of the Offered Securities. The term
"PROSPECTUS" means the Basic Prospectus together with the prospectus supplement
(other than a preliminary prospectus supplement) specifically relating to the
Offered Securities in the form first provided to the Underwriters for use in
confirming sales of the Offered Securities. The term "PRELIMINARY PROSPECTUS"
means any preliminary form of the Prospectus used in connection with the
offering of the Offered Securities. If the Company files an abbreviated
registration statement to register Offered Securities pursuant to Rule 462(b)
under the Securities Act of 1933 (the "RULE 462(b) REGISTRATION STATEMENT), then
any reference in this Agreement to the term "Registration Statement" shall be
deemed to include such Rule 462(b) Registration Statement. As used herein, the
terms "REGISTRATION STATEMENT", "BASIC PROSPECTUS", "PROSPECTUS" and
"PRELIMINARY PROSPECTUS" shall include, in each case, the materials, if any,
incorporated or deemed to be incorporated by reference therein.
The term "UNDERWRITERS' SECURITIES" means the Offered Securities to be
purchased by the Underwriters pursuant to this Agreement. The term "CONTRACT
SECURITIES" means the Offered Securities, if any, to be purchased pursuant to
the delayed delivery contracts referred to below.
II.
If the Prospectus provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company hereby authorizes the Underwriters to
solicit offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus pursuant to delayed delivery contracts
substantially in the form of Schedule I attached hereto ("DELAYED DELIVERY
CONTRACTS") but with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors
approved by the Company and of the types set forth in the Prospectus. On the
Closing Date (as hereinafter defined), the Company will pay the Manager as
compensation, for the accounts of the Underwriters, the fee set forth in the
Underwriting Agreement in respect of the Contract Securities. The Underwriters
will not have any responsibility in respect of the validity or the performance
of Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the
Offered Securities to be purchased by the several Underwriters and the aggregate
principal amount of Offered Securities to be purchased by each Underwriter shall
be reduced pro rata in proportion to the principal amount of Offered Securities
set forth opposite such Underwriter's name in the Underwriting Agreement, except
to the extent that the Manager determines that such reduction shall be otherwise
and so advises the Company.
III.
The Company is advised by the Manager that the Underwriters propose to
make a public offering of their respective portions of the Underwriters'
Securities as soon after this Agreement is entered into as in the Manager's
judgment is advisable. The terms of the public offering of the Underwriters'
Securities are set forth in the Prospectus.
IV.
Payment for the Underwriters' Securities shall be made in Federal or
other immediately available funds in New York City at the time and on the date
set forth in the Underwriting Agreement, upon delivery to the Manager for the
respective accounts of the several Underwriters of the Underwriters' Securities
registered in such names and in such denominations as the Manager shall request
in writing not less than one business day prior to the date of delivery. The
time and date of such payment and delivery with respect to the Underwriters'
Securities are herein referred to as the "CLOSING DATE".
V.
The several obligations of the Underwriters under this Agreement are
subject to the following conditions:
(a)
(i) subsequent to the execution and delivery of the
Underwriting Agreement, there shall not have been any
downgrading, nor any notice given of
2
any intended or potential downgrading or of 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 of 1933;
(ii) subsequent to the execution and delivery of the
Underwriting Agreement, 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 the
Underwriting Agreement), that, in the judgment of the Manager, is
material and adverse and that makes it, in the judgment of the
Manager, impracticable to market the Offered Securities on the
terms and in the manner contemplated in the Prospectus; and
(iii) the Manager 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 clause (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 on or before the Closing Date.
(b) The Manager shall have received on the Closing Date an
opinion of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Senior Legal Counsel of the Company, or
other counsel satisfactory to the Manager, dated the Closing Date, to
the effect set forth as Exhibit A.
(c) The Manager shall have received on the Closing Date an
opinion of Sidley ▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇ LLP, counsel for the Underwriters,
dated the Closing Date and in form and substance satisfactory to the
Manager, with respect to this Agreement, the Offered Securities, the
Indenture, the Delayed Delivery Contracts (if any), the Registration
Statement and the Prospectus and such other matters as the Manager may
request, it being understood that, in rendering such opinion, such
counsel need not express any opinion with respect to matters governed by
or arising under the laws of the State of Washington.
(d) The Manager shall have received on the Closing Date a letter
dated the Closing Date, in form and substance satisfactory to the
Manager, from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ & Co., 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 or
incorporated or deemed to be incorporated by reference into the
Registration Statement and the Prospectus and any amendments or
supplements thereto.
3
VI.
In further consideration of the agreements of the Underwriters contained
in this Agreement, the Company covenants as follows:
(a) To furnish the Manager, without charge, three signed copies
of the Registration Statement including exhibits and materials, if any,
incorporated or deemed to be incorporated by reference therein and,
during the period mentioned in paragraph (c) below, as many copies of
the Prospectus, any documents incorporated or deemed to be incorporated
by reference therein and any supplements and amendments thereto as the
Manager may reasonably request. The terms "SUPPLEMENT" and "AMENDMENT"
or "AMEND" as used in this Agreement with respect to the Registration
Statement or Prospectus shall include all documents filed by the Company
with the Commission subsequent to the date of the Basic Prospectus,
pursuant to the Securities Exchange Act of 1934, which are incorporated
or deemed to be incorporated by reference in the Registration Statement
and Prospectus.
(b) Before amending or supplementing the Registration Statement
or the Prospectus with respect to the Offered Securities, to furnish the
Manager a copy of each such proposed amendment or supplement.
(c) If, during such period after the first date of the public
offering of the Offered Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered with
respect thereto, any event shall occur 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 it is
necessary to amend or to supplement the Prospectus to comply with law,
forthwith to prepare and furnish, at its own expense, to the
Underwriters, 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 will comply with law.
(d) To qualify the Offered Securities for offer and sale under
the securities or Blue Sky laws of such jurisdictions as the Manager
shall reasonably request and to pay all expenses (including reasonable
fees and disbursements of counsel) in connection with such qualification
and in connection with the determination of the eligibility of the
Offered Securities for investment under the laws of such jurisdiction as
the Manager may designate.
(e) To make generally available to the Company's security holders
as soon as practicable an earnings statement covering a twelve-month
period beginning after the date of the Underwriting Agreement, which
shall satisfy the provisions of Section 11(a) of the Securities Act of
1933 and the applicable rules and regulations of the Commission
thereunder.
4
(f) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date not to offer,
sell, contract to sell or otherwise dispose of any debt securities of
the Company substantially similar to the Offered Securities without the
prior written consent of the Manager.
VII.
The Company represents and warrants to each Underwriter that (i) each
document, if any, filed or to be filed pursuant to the Securities Exchange Act
of 1934 and incorporated or deemed to be incorporated by reference in the
Prospectus complied or will comply, as the case may be, when so filed in all
material respects with such Act and the applicable rules and regulations
thereunder, (ii) each part of the Registration Statement (including the
documents incorporated or deemed to be incorporated by reference therein) filed
with the Commission pursuant to the Securities Act of 1933 relating to the
Securities, when such part became effective under the Securities Act of 1933,
did 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) each preliminary prospectus, if any, filed
pursuant to Rule 424 under the Securities Act of 1933 complied when so filed in
all material respects with such Act and the applicable rules and regulations
thereunder, (iv) the Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material respects
with the Securities Act of 1933 and the applicable rules and regulations
thereunder and (v) the Registration Statement and the Prospectus do 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 in order
to make the statements therein, in the light of the circumstances under which
they were made, not misleading; except that these representations and warranties
do not apply to statements or omissions in the Registration Statement, any
preliminary prospectus or the Prospectus based upon information furnished to the
Company in writing by any Underwriter expressly for use therein.
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 of 1933 or Section 20 of the Securities
Exchange Act of 1934 from and against any and all losses, claims, damages and
liabilities (including, without limitation, any legal or other expenses
reasonably incurred by any Underwriter or any such controlling person 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, any preliminary prospectus or the Prospectus (if
used within the period set forth in paragraph (c) of Article VI hereof and 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 furnished in writing
to the Company by any Underwriter expressly for use therein.
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 Section 15 of the Securities Act of 1933 or
5
Section 20 of the Securities Exchange Act of 1934 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 expressly for use in the Registration Statement,
any preliminary prospectus or the Prospectus.
In case any proceeding (including any governmental investigation) shall
be instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, 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 potential
differing interests between them. It is understood that the indemnifying party
shall not, in connection with any proceeding or related proceedings in the same
jurisdiction, be liable for the reasonable 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 the Manager in the case of
parties indemnified pursuant to the second preceding paragraph and by the
Company in the case of parties indemnified pursuant to the first preceding
paragraph. 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. 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.
If the indemnification provided for in this Article VII is unavailable
to an indemnified party under the second or third paragraphs hereof or
insufficient in respect of any losses, claims, damages or liabilities referred
to therein, then each indemnifying party, in lieu of indemnifying such
indemnified party, 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 from the
offering of the Offered Securities or (ii) if the allocation provided by clause
(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 (i)
above but also the relative fault of the Company on the one hand and of the
Underwriters on the other in connection with the statements or omissions which
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
6
Underwriters on the other in connection with the offering of the Offered
Securities shall be deemed to be in the same respective proportions as the total
net proceeds from the offering of such Offered Securities (before deducting
expenses) received by the Company and the total underwriting and discounts
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
Offered Securities as set forth in the table on the cover of the Prospectus. The
relative fault of the Company on the one hand and of the Underwriters on the
other 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 Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Article VII were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to in the immediately preceding paragraph. 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 (including expenses of local counsel)
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Article VII, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Offered Securities
underwritten and distributed to the public by such Underwriter were offered to
the public exceeds the amount of any damages which 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 of
1933) shall be entitled to contribution from any person who was not guilty of
such fraudulent misrepresentation. The remedies provided for in this Article VII
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. The Underwriters'
obligations to contribute pursuant to this Article VII are several, in
proportion to the respective principal amounts of Offered Securities purchased
by each of such Underwriters, and not joint.
The indemnity and contribution agreements contained in this Article VII
and the representations and warranties of the Company 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 directors or officers or any person controlling the Company and
(iii) acceptance of and payment for any of the Offered Securities.
VIII.
This Agreement shall be subject to termination in the Manager's absolute
discretion, by notice given to the Company, if (a) after the execution and
delivery of the Underwriting 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
7
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 the judgment of the
Manager, is material and adverse and (b) in the case of any of the events
specified in clauses (a) (i) through (iv), such event, singly or together with
any other such event, makes it, in the judgment of the Manager, impracticable to
market the Offered Securities on the terms and in the manner contemplated in the
Prospectus.
IX.
If, on the Closing Date, any one or more of the Underwriters shall fail
or refuse to purchase the Offered Securities which it or they have agreed to
purchase under the Underwriting Agreement on such date, and the aggregate
principal amount of Offered Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is not more than one-tenth
of the aggregate principal amount of the Offered Securities to be purchased on
such date, the other Underwriters shall be obligated severally in the
proportions which the principal amount of Offered Securities set forth opposite
their names in the Underwriting Agreement pursuant to which the Offered
Securities are being purchased bear to the aggregate principal of Offered
Securities set forth opposite the names of all such non-defaulting Underwriters,
or in such other proportions as the Manager may specify, to purchase the Offered
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase on such date; provided, however, that in no event shall
the principal amount of Offered Securities which any Underwriter has agreed to
purchase pursuant to such Underwriting Agreement be increased pursuant to this
Article IX by an amount in excess of one-ninth of such principal amount of
Offered Securities without the written consent of such Underwriter. If, on the
Closing Date, any Underwriter or Underwriters shall fail or refuse to purchase
Offered Securities and the aggregate principal amount of Offered Securities with
respect to which such default occurs is more than one-tenth of the aggregate
principal amount of Offered Securities to be purchased on such date, and
arrangements satisfactory to the Manager and the Company for the purchase of
such Offered Securities are not made within 36 hours after such default, this
Agreement will terminate without liability on the part of any non-defaulting
Underwriter or the Company. In any such case the non-defaulting Underwriters
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. 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 the Offered
Securities.
8
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signatures thereto
and hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with the
laws of the State of New York.
9
SCHEDULE I
DELAYED DELIVERY CONTRACT
[DATE]
Dear Sirs and Mesdames:
The undersigned hereby agrees to purchase from Weyerhaeuser Company, a
Washington corporation (the "COMPANY"), and the Company agrees to sell to the
undersigned
$ . . . . . . . . . . . .
principal amount of the Company's [state title of issue] (the "SECURITIES"),
offered by the Company's prospectus dated __________ and Prospectus Supplement
dated __________, receipt of copies of which are hereby acknowledged, at a
purchase price of ___% of the principal amount thereof plus accrued interest and
on the further terms and conditions set forth in this contract. The undersigned
does not contemplate selling Securities prior to making payment therefor.
The undersigned will purchase from the Company Securities in the
principal amounts and on the delivery dates set forth below:
Delivery Date Principal Amount Plus Accrued Interest From:
------------- ---------------- ---------------------------
___________________ $__________ ___________________
___________________ $__________ ___________________
___________________ $__________ ___________________
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "DELIVERY DATE".
Payment for the Securities which the undersigned has agreed to purchase
on each Delivery Date shall be made by wire transfer of Federal or other
immediately available funds to an account in the United States of America
designated by the Company at 10:00 A.M. (New York time) on the Delivery Date,
upon delivery [(which delivery shall be made by book-entry transfer through the
facilities of The Depository Trust Company)] to the undersigned of the
Securities to be purchased by the undersigned on the Delivery Date, in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than five
full business days prior to the Delivery Date.
Schedule I-1
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "UNDERWRITERS") named in the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery 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.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its obligations under 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.
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, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
Schedule I-2
This contract shall be governed by and construed in accordance with the
laws of the State of New York.
Yours very truly,
___________________
(Purchaser)
By ______________________________
Name:
Title:
_______________________
_______________________
(Address)
Accepted:
Weyerhaeuser Company
By ________________________
Name:
Title:
Schedule I-3
PURCHASER--PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print.)
Telephone No.
Name (Including Area Code) Department
---- --------------------- ----------
___________________ ___________________ ___________________
___________________ ___________________ ___________________
___________________ ___________________ ___________________
Schedule I-4
EXHIBIT A
Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇, Senior Legal Counsel
of the Company
The opinion of ▇▇▇▇▇▇ ▇▇▇▇▇, Senior Legal Counsel of the Company, to be
delivered pursuant to Article V, paragraph (b) of the document entitled
Weyerhaeuser Company Underwriting Agreement Standard Provisions (Debt) shall be
to the effect that:
(i) the Company has been duly incorporated, is validly existing
as a corporation in good standing under the laws of the State of
Washington and is duly qualified to transact business and is in good
standing in each other state of the United States in which the conduct
of its business or the ownership or leasing of property requires such
qualification, except to the extent that such failure to be duly
qualified and in good standing as a foreign corporation in any such
other state would not have a material adverse effect upon the Company
and its subsidiaries, taken as a whole, or on the Company's ability to
perform its obligations under the Underwriting Agreement, the Delayed
Delivery Contracts (if applicable), the Indenture or the Offered
Securities,
(ii) the Indenture has been duly authorized, executed and
delivered by the Company and (assuming due authorization, execution and
delivery of the Indenture by the Trustee) is a valid and binding
agreement of the Company, enforceable against the Company in accordance
with its terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium, fraudulent conveyance, fraudulent transfer
or other similar laws relating to or affecting creditors' rights
generally and by general principles of equity and public policy, and has
been duly qualified under the Trust Indenture Act of 1939,
(iii) the Offered Securities have been duly authorized by the
Company , and when executed by the Company and authenticated by the
Trustee in accordance with the provisions of the Indenture and delivered
to and paid for by the Underwriters pursuant to the Underwriting
Agreement or by institutional investors, if any, pursuant to Delayed
Delivery Contracts, will be valid and binding obligations of the
Company, enforceable against the Company in accordance with their terms,
except as may be limited by bankruptcy, insolvency, reorganization,
moratorium, fraudulent conveyance, fraudulent transfer or other similar
laws relating to or affecting creditors' rights generally and by general
principles of equity and public policy,
(iv) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company,
(v) the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company and are valid and
binding agreements of the Company, enforceable against the Company in
accordance with their terms, except as may be limited by bankruptcy,
insolvency, reorganization, moratorium, fraudulent
A-1
conveyance, fraudulent transfer or other similar laws relating to or
affecting creditors' rights generally and by general principles of
equity and public policy,
(vi) the execution, delivery and performance of the Underwriting
Agreement and the issuance and sale of the Offered Securities by the
Company as provided therein will not result in any violation of any
provisions of applicable law or the articles of incorporation or bylaws
of the Company or of any indenture, mortgage or other agreement known to
such counsel to which the Company or any of its subsidiaries is bound,
and no consent, approval or authorization of any governmental body is
required, except such as are specified and have been obtained and except
that no opinion need be expressed with respect to consents, approvals or
authorizations required under state securities or "blue sky" laws,
(vii) the statements in the Prospectus under [INSERT OTHER
CAPTIONS OR AMEND AS APPROPRIATE--] ["Recent Developments--Proposed
Business Combination Transaction Between Weyerhaeuser Company and
Willamette Industries, Inc.",] "Description of _", "Description of Debt
Securities", "Plan of Distribution" and "Underwriters", insofar as such
statements constitute a summary of the terms of [the Company's tender
offer for Willamette Industries, Inc. or of] the documents [(including
the Proposed Credit Facilities as (defined in the Prospectus)], the
Indenture, the Offered Securities and, if applicable, the Delayed
Delivery Contracts) or proceedings referred to therein, fairly present
the information called for with respect to such tender offer, documents
and proceedings,
(viii) the transactions contemplated by the Underwriting
Agreement, the Delayed Delivery Contracts (if applicable), the Offered
Securities and the Indenture, to the extent that any such transaction
may be considered a "Business Transaction" as defined in Article X of
the articles of incorporation of the Company ("Article X"), have been
duly approved as provided in Section (2) of Article X, and
(ix) (1) such counsel is of the opinion that each document filed
pursuant to the Securities Exchange Act of 1934 (except for financial
statements and schedules and other financial and statistical data
contained therein, as to which such counsel need not express any
opinion) and incorporated or deemed to be incorporated by reference in
the Prospectus complied when so filed as to form in all material
respects with such Act and the rules and regulations thereunder, (2)
such counsel is of the opinion that the Registration Statement and any
Rule 462(b) Registration Statement (except for financial statements and
schedules and other financial or statistical data contained therein, as
to which such counsel need not express any opinion), at the respective
times they were declared effective under the Securities Act of 1933,
complied, and the Prospectus, as amended or supplemented, if applicable
(except for financial statements and schedules and other financial and
statistical data contained therein, as to which such counsel need not
express any opinion), on the date of such opinion, complies, as to form
in all material respects with the Securities Act of 1933 and the rules
and regulations thereunder, (3) while such counsel has not verified the
accuracy or completeness of the other information furnished in the
Registration Statement, any Rule 462(b) Registration Statement or the
Prospectus, such counsel has generally reviewed and discussed with
certain officers of
A-2
the Company, its independent public accountants, the representatives of
the Underwriters and their counsel the information furnished and, on the
basis thereof, but without independent check or verification except as
specified, such counsel believes that (except for financial statements
and schedules and other financial and statistical data contained
therein, as to which such counsel need not express any belief), each
part of the Registration Statement and any Rule 462(b) Registration
Statement (including the documents incorporated or deemed to be
incorporated by reference therein) filed with the Commission, when such
part became effective, did 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 and
(4) while such counsel has not verified the accuracy or completeness of
the other information furnished in the Registration Statement, any Rule
462(b) Registration Statement or the Prospectus, such counsel has
generally reviewed and discussed with certain officers of the Company,
its independent public accountants, the representatives of the
Underwriters and their counsel the information furnished and, on the
basis thereof, but without independent check or verification except as
specified, such counsel believes that the Registration Statement, any
Rule 462(b) Registration Statement and the Prospectus (except for
financial statements and schedules and other financial and statistical
data contained therein, as to which such counsel need not express any
belief), on the date of the Underwriting Agreement did not, and the
Prospectus (except for financial statements and schedules and other
financial and statistical data contained therein, as to which such
counsel need not express any belief), as amended or supplemented, if
applicable, on the date of such opinion does not, contain any untrue
statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
Such opinion shall state that it is limited to the federal laws of the
United States of America and the laws of the State of Washington and, insofar as
the Underwriting Agreement, the Indenture, the Offered Securities, the Delayed
Delivery Contracts (if applicable) or any other instruments or agreements
referred to in such opinion are governed by the laws of the State of New York or
any other jurisdiction (other than the federal laws of the United States of
America and the laws of the State of Washington), such counsel has assumed that
the laws of the State of New York or any such other jurisdiction, as the case
may be, are the same as the laws of the State of Washington.
Such opinion shall be delivered to the Underwriters at the request of
the Company and shall so state therein.
A-3
