EXHIBIT 4.3
REGISTRATION RIGHTS AGREEMENT
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This REGISTRATION RIGHTS AGREEMENT (this "Agreement") dated as of
___________, 1998 by and between TIMBERLAND GROWTH CORPORATION, a Delaware
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corporation (the "Company"), and POTLATCH CORPORATION, a Delaware corporation
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("Potlatch"),
W I T N E S S E T H:
WHEREAS, the Company, as general partner, and Potlatch, as limited partner,
have formed Timberland Growth Limited Partnership, a Delaware limited
partnership (the "Partnership"), pursuant to that certain Agreement of Limited
Partnership, dated as of March __, 1998 (the "Original Partnership Agreement");
and
WHEREAS, concurrently with the execution of this agreement by the parties
hereto, the Original Partnership Agreement will be amended and restated by that
certain Amended and Restated Agreement of Limited Partnership, dated as of the
date hereof (the "Partnership Agreement"); and
WHEREAS, pursuant to Section 8.5 of the Partnership Agreement, Potlatch may
under certain circumstances acquire shares of Common Stock of the Company in
exchange for its limited partnership interests in the Partnership; and
WHEREAS, the Company and Potlatch desire to provide for the rights set
forth herein with respect to the registration of such shares of Common Stock:
NOW, THEREFORE, in consideration of the covenants and agreements of the
Holder (as defined below) and the Company contained herein and in the
Partnership Agreement and for other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
Section 1. Definitions and Usage.
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As used in this Agreement:
1.1 Definitions.
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Agent. "Agent" shall mean the principal placement agent on an agented
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placement of Registrable Securities.
Board. "Board" shall mean the Board of Directors of the Company.
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Commission. "Commission" shall mean the U.S. Securities and Exchange
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Commission.
Common Stock. "Common Stock" shall mean (i) the Common Stock, par value
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$.01 per share, of the Company and (ii) shares of capital stock of the Company
issued by the Company in respect of or in exchange for shares of such Common
Stock in connection with any stock dividend or distribution, stock split-up,
recapitalization, recombination or exchange by the Company generally of shares
of such Common Stock.
Continuously Effective. "Continuously Effective," with respect to a
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specified registration statement, shall mean that such registration statement
shall not cease to be effective and available for Transfers of Registrable
Securities thereunder for less than either (i) any ten (10) consecutive business
days, or (ii) an aggregate of fifteen (15) business days during the period
specified in the relevant provision of this Agreement.
Demand Registration. "Demand Registration" shall have the meaning set
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forth in Section 2.1(a).
Equity. "Equity" shall mean any and all shares of Common Stock, Special
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Voting Stock and other capital stock of the Company, securities of the Company
convertible into such shares, and options, warrants or other rights to acquire
such shares.
Exchange Act. "Exchange Act" shall mean the Securities Exchange Act of
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1934, as amended.
Holder. "Holder" shall mean Potlatch and any holder of Registrable
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Securities to whom the registration rights conferred by this Agreement are
transferred in compliance with Section 8 hereof.
IPO Closing Date. "IPO Closing Date" shall mean the closing date of the
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initial public offering of Common Stock.
Other Shares. "Other Shares" shall have the meaning set forth in Section
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3.2.
Partnership Agreement. "Partnership Agreement" shall have the meaning set
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forth in the second recital to this Agreement.
Person. "Person" shall mean any individual, corporation, partnership,
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limited liability company, joint venture, association, trust, unincorporated
organization or other entity.
Piggyback Registration. "Piggyback Registration" shall have the meaning
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set forth in Section 3.
Register, Registered and Registration. "Register," "registered" and
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"registration" shall refer to a registration effected by preparing and filing a
registration statement or similar
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document in compliance with the Securities Act, and the declaration or ordering
by the Commission of effectiveness of such registration statement or document.
Registrable Securities. "Registrable Securities" shall mean any shares of
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Common Stock issued or issuable to the Holder upon exchange (pursuant to Section
8.5 of the Partnership Agreement) of the limited partnership interests in the
Partnership held by the Holder on the date hereof or hereafter acquired;
provided, however, that the Company shall have no obligation under Sections 2
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and 3 to register any Registrable Securities of the Holder if the Company shall
deliver to the Holder an opinion of counsel reasonably satisfactory to such
Holder and its counsel to the effect that the proposed sale or disposition of
all of the Registrable Securities for which registration was requested does not
require registration under the Securities Act for a sale or disposition in a
single public sale, and the Company offers to remove any and all legends
restricting transfer from the certificates evidencing such Registrable
Securities.
Registration Expenses. "Registration Expenses" shall have the meaning set
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forth in Section 6.1.
Rule 144. "Rule 144" shall mean Rule 144 as promulgated by the Commission
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under the Securities Act, as such rule may be amended from time to time, or any
similar successor rule that may be promulgated by the Commission.
Securities Act. "Securities Act" shall mean the Securities Act of 1933, as
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amended.
Transfer. "Transfer" shall mean and include the act of offering, selling,
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giving, transferring, creating a trust (voting or otherwise), assigning or
otherwise disposing of, whether voluntarily or involuntarily and including by
way of merger or consolidation and regardless of whether such act is by
operation of law or otherwise, (other than pledging, hypothecating or otherwise
transferring as security) (and correlative words shall have correlative
meanings); provided, however, that any transfer or other disposition upon
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foreclosure or other exercise of remedies of a secured creditor after an event
of default under or with respect to a pledge, hypothecation or other transfer as
security shall constitute a "Transfer."
Underwriters' Representative. "Underwriters' Representative" shall mean
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the managing underwriter, or, in the case of a co-managed underwriting, the
managing underwriter designated as the Underwriters' Representative by the co-
managers.
Violation. "Violation" shall have the meaning set forth in Section 7.1.
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1.2 Usage.
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(a) References to a Person are also references to its successors in
interest (by means of merger, consolidation or sale of all or substantially all
the assets of such Person or otherwise, as the case may be) and permitted
assigns.
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(b) References to a document are to it as amended, waived and otherwise
modified from time to time and references to a statute or other governmental
rule are to it as amended and otherwise modified from time to time (and
references to any provision thereof shall include references to any successor
provision).
(c) References to Sections or to Schedules or Exhibits are to sections
hereof or schedules or exhibits hereto, unless the context otherwise requires.
(d) The definitions set forth herein are equally applicable both to the
singular and plural forms and the feminine, masculine and neuter forms of the
terms defined.
(e) The term "including" and correlative terms shall be deemed to be
followed by "without limitation" whether or not followed by such words or words
of like such import.
(f) The term "hereof" and similar terms refer to this Agreement as a whole.
(g) The "date of" any notice or request given pursuant to this Agreement
shall be determined in accordance with Section 11.2.
Section 2. Demand Registration.
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2.1(a) At any time on or after the second anniversary of the IPO Closing
Date, if the Holder shall make a written request to the Company, the Company
shall cause to be filed with the Commission a registration statement meeting the
requirements of the Securities Act (a "Demand Registration"), and the Holder
shall be entitled to have included therein all or such number of Holder's
Registrable Securities, as the Holder shall request in writing; provided,
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however, that the fair market value of the Holder's Registrable Securities to be
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included in such registration shall not be less than $50.0 million as of the
date of such written request (unless such Registrable Securities represent all
of the Holder's Registrable Securities); and provided further, however, that no
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request may be made pursuant to this Section 2.1 if within six (6) months prior
to the date of such request a Demand Registration statement pursuant to this
Section 2.1 shall have been declared effective by the Commission. Any request
made pursuant to this Section 2.1 shall be addressed to the attention of the
Secretary of the Company (or if there is no such officer, the President), and
shall specify the number of Registrable Securities to be registered, the
intended methods of disposition thereof and that the request is for a Demand
Registration pursuant to this Section 2.1(a).
(b) The Company shall be entitled to postpone for up to sixty (60) days the
filing of any Demand Registration statement otherwise required to be prepared
and filed pursuant to this Section 2.1 (or delay seeking effectiveness of a
Registration Statement which has been filed), if the Board determines, in its
good faith reasonable judgment, that such registration would materially
interfere with, or require premature and seriously detrimental disclosure of,
any material financing, acquisition or reorganization or other material matter
involving the Company or any of its subsidiaries and the Company promptly gives
the Holder notice of such determination; provided, however, that the Company
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shall not have postponed pursuant to this Section 2.1(b) the filing of any other
Demand
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Registration statement otherwise required to be prepared and filed pursuant to
this Section 2.1 during the 180-day period ended on the date of the relevant
request pursuant to Section 2.1(a).
2.2 Following receipt of a request for a Demand Registration, the Company
shall:
(a) File the registration statement with the Commission as promptly
as practicable, and, subject to Section 2.1(b), shall use the Company's
reasonable efforts to have the registration statement declared effective
under the Securities Act as soon as reasonably practicable, in each
instance giving due regard to the need to prepare current financial
statements, conduct due diligence and complete other actions that are
reasonably necessary to effect a registered public offering; and
(b) Use the Company's reasonable efforts to keep the relevant
registration statement Continuously Effective for up to ninety (90) days or
until such earlier date as of which all the Registrable Securities under
the Demand Registration statement shall have been disposed of in the manner
described in the Registration Statement. Notwithstanding the foregoing, if
for any reason the effectiveness of a registration pursuant to this Section
2 is suspended or filing of the Registration Statement or seeking
effectiveness thereof is postponed as permitted by Section 2.1(b), the
foregoing period shall be extended by the aggregate number of days of such
suspension or postponement.
2.3 A registration pursuant to this Section 2 shall be on such
appropriate registration form of the Commission as shall (a) be selected by the
Company and be reasonably acceptable to the Holder and (b) permit the
disposition of the Registrable Securities in accordance with the intended method
or methods of disposition specified in the request pursuant to Section 2.1(a).
2.4 If any registration pursuant to this Section 2 involves an
underwritten offering (whether on a "firm commitment," "best efforts" or "all
reasonable efforts" basis or otherwise), or an agented offering, the Holder
shall have the right to select the underwriter or underwriters and manager or
managers to administer such underwritten offering or the placement agent or
agents for such agented offering; provided, however, that each Person so
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selected shall be reasonably acceptable to the Company.
2.5 No securities other than Registrable Securities (including without
limitation shares to be sold for the Company's account) shall be included in any
registration pursuant to this Section 2 without the prior written consent of the
Holder.
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Section 3. Piggyback Registration.
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3.1 If any time after the second anniversary of the IPO Closing Date the
Company proposes to register (including for this purpose a registration effected
by the Company for stockholders of the Company other than the Holder) Common
Stock under the Securities Act in connection with a public offering solely for
cash (other than in connection with an employee benefit plan) on Form S-l, X-0,
X-0 or S-11 (or any replacement or successor forms thereto), the Company shall
promptly give the Holder written notice of such registration (a "Piggyback
Registration"). Upon the written request of the Holder given within 20 days
following the date of such notice, the Company shall cause to be included in
such registration statement and use its reasonable efforts to cause to be
registered under the Securities Act all of the Registrable Securities that the
Holder shall have requested to be registered. The Company shall have the
absolute right to withdraw or cease to prepare or file any registration
statement for any offering referred to in this Section 3 without any obligation
or liability to the Holder.
3.2 If the Underwriters' Representative or Agent shall advise the Company
in writing (with a copy to the Holder) that, in its opinion, the amount of
Registrable Securities requested to be included in such registration would
materially adversely affect such offering, or the timing thereof, then the
Company will include in such registration, to the extent of the amount and class
which the Company is so advised can be sold without such material adverse effect
in such offering: first, all securities proposed to be sold by the Company for
its own account; and second, the Registrable Securities requested to be included
in such registration by the Holder pursuant to this Section 3 and all other
securities requested to be registered other than on behalf of the Company (the
"Other Shares") pro rata based on the respective number of shares of Common
Stock held by the Holder and the Person(s) requesting registration of the Other
Shares (assuming for such purpose that all limited partnership interests in the
Partnership held by the Holder and such Persons had been redeemed for shares of
Common Stock).
Section 4. Registration Procedures. Whenever required under Section 2 or
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Section 3 to effect the registration of any Registrable Securities, the Company
shall, as expeditiously practicable:
4.1 Prepare and file with the Commission a registration statement with
respect to such Registrable Securities and, subject to Section 2.1(b) and
Section 3.1, use the Company's reasonable efforts to cause such registration
statement to become effective, provided, however, that before filing a
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registration statement or prospectus or any amendments or supplements thereto,
including documents incorporated by reference after the initial filing of the
registration statement and prior to effectiveness thereof, the Company shall
furnish to counsel for the Holder copies of all such documents in the form
substantially as proposed to be filed with the Commission prior to filing for
review and comment by such counsel.
4.2 Prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection with each
registration
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statement as may be necessary to comply with the provisions of the Securities
Act and rules thereunder with respect to the disposition of all securities
covered by such registration statement. If the registration is for an
underwritten offering, the Company shall amend the registration statement or
supplement the prospectus whenever required by the terms of the underwriting
agreement entered into pursuant to Section 4.5. Pending such amendment or
supplement the Holder shall cease making offers or Transfers of Registrable
Shares pursuant to the prior prospectus. In the event that any Registrable
Securities included in a registration statement subject to, or required by, this
Agreement remain unsold at the end of the period during which the Company is
obligated to use its reasonable efforts to maintain the effectiveness of such
registration statement, the Company may file a post-effective amendment to the
registration statement for the purpose of removing such Registrable Securities
from registered status.
4.3 Furnish to the Holder, without charge, such numbers of copies of the
registration statement, any pre-effective or post-effective amendment thereto,
the prospectus, including each preliminary prospectus and any amendments or
supplements thereto, in each case in conformity with the requirements of the
Securities Act and the rules thereunder, and such other related documents as the
Holder may reasonably request in order to facilitate the disposition of
Registrable Securities owned by the Holder.
4.4 Use the Company's reasonable efforts (i) to register and qualify the
securities covered by such registration statement under such other securities or
Blue Sky laws of such states or jurisdictions as shall be reasonably requested
by the Underwriters' Representative or Agent (or if there is no Underwriters'
Representative or Agent, as shall be reasonably requested by the Holder), and
(ii) to obtain the withdrawal of any order suspending the effectiveness of a
registration statement, or the lifting of any suspension of the qualification
(or exemption from qualification) of the offer and sale of any of the
Registrable Securities in any jurisdiction, at the earliest possible moment;
provided, however, that the Company shall not be required in connection
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therewith or as a condition thereto to qualify to do business or to file a
general consent to service of process in any such states or jurisdictions.
4.5 In the event of any underwritten or agented offering, enter into and
perform the Company's obligations under an underwriting or agency agreement, in
usual and customary form, with the managing underwriter or underwriters of or
agents for such offering. The Company shall also cooperate with the Holder and
the Underwriters' Representative or Agent for such offering in the marketing of
the Registrable Securities.
4.6 Promptly notify the Holder of any stop order issued or threatened to
be issued by the Commission in connection therewith and take all reasonable
actions required to prevent the entry of such stop order or to remove it if
entered.
4.7 Make available for inspection by the Holder, any underwriter or agent
participating in such offering and the representatives of the Holder and
underwriter or agent, all financial and other information as shall be reasonably
requested by them, and provide the Holder, any underwriter or agent
participating in such offering and the representatives of the
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Holder and such underwriter or agent the reasonable opportunity to discuss the
business affairs of the Company with its principal executives and independent
public accountants who have certified the audited financial statements included
in such registration statement, in each case all as necessary to enable them to
exercise their due diligence responsibility under the Securities Act; provided,
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however, that information that the Company determines, in good faith, to be
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confidential and which the Company advises such Person in writing, is
confidential shall not be disclosed unless such Person signs a confidentiality
agreement reasonably satisfactory to the Company or the Holder of Registrable
Securities agrees to be responsible for such Person's breach of confidentiality
on terms reasonably satisfactory to the Company.
4.8 Use the Company's reasonable efforts to obtain a "comfort letter"
from its independent public accountants and legal opinions of counsel to the
Company, each in usual and customary form, addressed to the Holder. The Company
shall furnish to the Holder a signed counterpart of any such comfort letter or
legal opinion. Delivery of any such opinion or comfort letter shall be subject
to the recipient furnishing such written representations or acknowledgements as
are customarily provided by selling shareholders who receive such comfort
letters or opinions.
4.9 Provide and cause to be maintained a transfer agent and registrar for
all Registrable Securities covered by such registration statement from and after
a date not later than the effective date of such registration statement.
4.10 Use reasonable efforts to cause the Registrable Securities covered by
such registration statement (i) if the Common Stock is then listed on a
securities exchange or included for quotation in a recognized trading market, to
continue to be so listed or included for a reasonable period of time after the
offering, and (ii) to be registered with or approved by such other United States
or state governmental agencies or authorities as may be necessary by virtue of
the business and operations of the Company to enable the Holder to consummate
the disposition of the Registrable Securities which are included in such
registration.
4.11 Take such other actions as are reasonably required in order to
expedite or facilitate the disposition of Registrable Securities included in
such registration.
Section 5. Holder's Obligations. It shall be a condition precedent to the
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obligations of the Company hereunder that the Holder shall furnish to the
Company such information regarding the Holder, the number of the Registrable
Securities owned by it, and the intended method of disposition of such
Registrable Securities as shall be required to effect the registration of the
Holder's Registrable Securities and to cooperate with the Company in preparing
such registration.
Section 6. Expenses of Registration. With respect to each Demand
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Registration and Piggyback Registration, the Company shall bear and pay all
expenses incurred in connection with any registration, filing, or qualification
of Registrable Securities with respect to such Demand or Piggyback Registration,
including all registration, filing and National Association
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of Securities Dealers, Inc. fees, all fees and expenses of complying with
securities or blue sky laws, all word processing, duplicating and printing
expenses, messenger and delivery expenses, and the reasonable fees and
disbursements of counsel for the Company and of the Company's independent public
accountants, including the expenses of "cold comfort" letters required by or
incident to such performance and compliance (the "Registration Expenses"), but
excluding underwriting discounts and commissions relating to Registrable
Securities or fees and expenses of Holder's counsel (which shall be paid by the
Holder), provided, however, that the Company shall not be required to pay for
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any expenses of any registration begun pursuant to Section 2 if the registration
is subsequently withdrawn at the request of the Holder (in which case the Holder
shall bear such expense).
Section 7. Indemnification; Contribution. If any Registrable Securities
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are included in a registration statement under this Agreement:
7.1 To the extent permitted by applicable law, the Company shall
indemnify and hold harmless the Holder, each Person, if any, who controls such
Holder within the meaning of the Securities Act, and each officer, director,
partner, and employee of the Holder and such controlling Person, against any and
all losses, claims, damages, liabilities and expenses (joint or several),
including reasonable attorneys' fees and disbursements and expenses of
investigation, incurred by such party pursuant to any actual or threatened
action, suit, proceeding or investigation, to which any of the foregoing Persons
may become subject under the Securities Act, the Exchange Act or other federal
or state laws, insofar as such losses, claims, damages, liabilities and expenses
arise out of or are based upon any of the following statements, omissions or
violations (collectively, a "Violation"):
(a) Any untrue statement or alleged untrue statement of a material
fact contained in such registration statement, including any preliminary
prospectus or final prospectus contained therein, or any amendments or
supplements thereto;
(b) The omission or alleged omission to state therein a material
fact required to be stated therein, or necessary to make the statements
therein not misleading; or
(c) Any violation or alleged violation by the Company of the
Securities Act, the Exchange Act, any applicable state securities law or
any rule or regulation promulgated under the Securities Act, the Exchange
Act or any applicable state securities law;
provided, however, that the indemnification required by this Section 7.1 shall
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not apply to amounts paid in settlement of any such loss, claim, damage,
liability or expense if such settlement is effected without the consent of the
Company (which consent shall not be unreasonably withheld), nor shall the
Company be liable in any such case for any such loss, claim, damage, liability
or expense to the extent that it arises out of or is based upon a Violation
which occurs in reliance upon and in conformity with written information
furnished to the Company by the indemnified party expressly for use in
connection with
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such registration; provided, further, that the indemnity agreement contained in
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this Section 7 shall not apply to any underwriter to the extent that any such
loss is based on or arises out of an untrue statement or alleged untrue
statement of a material fact, or an omission or alleged omission to state a
material fact, contained in or omitted from any preliminary prospectus if the
final prospectus shall correct such untrue statement or alleged untrue
statement, or such omission or alleged omission, and a copy of the final
prospectus has not been sent or given to such person at or prior to the
confirmation of sale to such person if such underwriter was under an obligation
to deliver such final prospectus and failed to do so. The Company shall also
indemnify underwriters and selling or placement agents participating in the
distribution, their officers, directors, agents and employees and each person
who controls such persons (within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act) to the same extent as provided above with
respect to the indemnification of the Holder, provided, however that no such
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underwriter or agent shall be entitled to indemnification under this Agreement
if such person shall have entered into a separate underwriting agency or
indemnification agreement with the Company.
7.2 To the extent permitted by applicable law, the Holder shall indemnify
and hold harmless the Company, each of its directors, each of its officers who
shall have signed the registration statement, each Person, if any, who controls
the Company within the meaning of the Securities Act, and each officer,
director, partner, and employee of the Company and such controlling Person,
against any and all losses, claims, damages, liabilities and expenses (joint and
several), including attorneys' fees and disbursements and expenses of
investigation, incurred by such party pursuant to any actual or threatened
action, suit, proceeding or investigation, or to which any of the foregoing may
otherwise become subject under the Securities Act, the Exchange Act or other
federal or state laws, insofar as such losses, claims, damages, liabilities and
expenses arise out of or are based upon any Violation, in each case to the
extent (and only to the extent) that such Violation occurs in reliance upon and
in conformity with written information furnished by the Holder expressly for use
in connection with such registration; provided, however, that the
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indemnification required by this Section 7.2 shall not apply to amounts paid in
settlement of any such loss, claim, damage, liability or expense if settlement
is effected without the consent of the Holder, which consent shall not be
unreasonably withheld.
7.3 Promptly after receipt by an indemnified party under this Section 7
of notice of the commencement of any action, suit, proceeding, investigation or
threat thereof made in writing for which such indemnified party may make a claim
under this Section 7, such indemnified party shall deliver to the indemnifying
party a written notice of the commencement thereof and the indemnifying party
shall have the right to participate in, and, to the extent the indemnifying
party so desires, jointly with any other indemnifying party similarly noticed,
to assume the defense thereof with counsel mutually satisfactory to the parties;
subject to the rights of an indemnified party to retain its own counsel as
hereinafter provided. The failure to deliver written notice to the indemnifying
party within a reasonable time following the commencement of any such action, if
prejudicial to its ability to defend such action, shall relieve such
indemnifying party of any liability to the indemnified party under this Section
7 but shall not relieve the indemnifying party of any liability that it may have
to any indemnified party otherwise than pursuant to this Section 7. Any fees
and
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expenses incurred by the indemnified party (including any fees and expenses
incurred in connection with investigating or preparing to defend such action or
proceeding) owed by the indemnifying party hereunder shall be paid to the
indemnified party, as incurred, within thirty (30) days of written notice
thereof to the indemnifying party (subject to refund if it is ultimately
determined that an indemnified party is not entitled to indemnification
hereunder). Any such indemnified party shall have the right to employ separate
counsel in any such action, claim or proceeding and to participate in the
defense thereof, but the fees and expenses of such counsel shall be the expenses
of such indemnified party unless (i) the indemnifying party has agreed to pay
such fees and expenses or (ii) the indemnifying party shall have failed to
promptly assume the defense of such action, claim or proceeding or (iii) the
named parties to any such action, claim or proceeding (including any impleaded
parties) include both such indemnified party and the indemnifying party, and
such indemnified party shall have been advised by counsel that there may be one
or more legal defenses available to it which are different from or in addition
to those available to the indemnifying party and that the assertion of such
defenses would create a conflict of interest such that counsel employed by the
indemnifying party could not faithfully represent the indemnified party (in
which case, if such indemnified party notifies the indemnifying party in writing
that it elects to employ separate counsel at the expense of the indemnifying
party, the indemnifying party shall not have the right to assume the defense of
such action, claim or proceeding on behalf of such indemnified party, it being
understood, however, that the indemnifying party shall not, in connection with
any one such action, claim or proceeding or separate but substantially similar
or related actions, claims or proceedings in the same jurisdiction arising out
of the same general allegations or circumstances, be liable for the reasonable
fees and expenses of more than one separate firm of attorneys (together with
appropriate local counsel) at any time for all such indemnified parties, unless
in the reasonable judgment of such indemnified party a conflict of interest may
exist between such indemnified party and any other of such indemnified parties
with respect to such action, claim or proceeding, in which event the
indemnifying party shall be obligated to pay the reasonable fees and expenses of
such additional counsel or counsels).
7.4 If the indemnification required by this Section 7 from the
indemnifying party is unavailable to an indemnified party hereunder in respect
of any losses, claims, damages, liabilities or expenses referred to in this
Section 7:
(a) The 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, liabilities or expenses
in such proportion as is appropriate to reflect the relative fault of the
indemnifying party and indemnified parties in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as
well as any other relevant equitable considerations. The relative fault of
such indemnifying party and indemnified parties shall be determined by
reference to, among other things, whether any Violation has been committed
by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such Violation. The
amount paid or payable
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by a party as a result of the losses, claims, damages, liabilities and
expenses referred to above shall be deemed to include, subject to the
limitations set forth in Section 7.l and Section 7.2, any legal or other
fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding.
(b) The parties hereto agree that it would not be just and equitable
if contribution pursuant to this Section 7.4 were determined by pro rata
allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in Section 7.4(a). 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.
7.5 If indemnification is available under this Section 7, the
indemnifying parties shall indemnify each indemnified party to the full extent
provided in this Section 7 without regard to the relative fault of such
indemnifying party or indemnified party or any other equitable consideration
referred to in Section 7.4.
7.6 The obligations of the Company and the Holder under this Section 7
shall survive the completion of any offering of Registrable Securities pursuant
to a registration statement under this Agreement, and otherwise.
Section 8. Transfer or Assignment of Registration Rights. The rights to
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cause the Company to register Common Stock granted hereunder to Potlatch by the
Company may be transferred or assigned by Potlatch or any subsequent Holder only
to a transferee or assignee of not less than 2,500,000 shares of Registrable
Securities (subject to adjustment for stock splits, stock dividends, stock
combinations and the like) (assuming for this purpose the exchange of any
limited partnership interests in the Partnership which may be exchanged for
shares of Registrable Securities pursuant to Section 8.5 of the Partnership
Agreement), provided, that the Company is given written notice at the time of or
--------
within a reasonable time after said transfer or assignment, stating the name and
address of the transferee or assignee and identifying the securities with
respect to which such registration rights are being transferred or assigned and,
provided further, that the transferee or assignee of such rights assumes in
----------------
writing the obligations of such Holder under this Agreement. In the event that
there is more than one Holder, any action to be taken or consent to be given by
the Holder under this Agreement shall mean the action or consent of the Holder
or Holders who in the aggregate hold not less than a majority of the outstanding
Registrable Securities (assuming for such purpose that any limited partnership
interests in the Partnership held by a Holder are exchanged, as of the date of
determination, for shares of Registrable Securities pursuant to Section 8.5 of
the Partnership Agreement).
Section 9. Amendment, Modification and Waivers; Further Assurances.
-------------------------------------------------------
(a) This Agreement may be amended with the consent of the Company and the
Company may take any action herein prohibited, or omit to perform any act herein
required
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to be performed by it, only if the Company shall have obtained the written
consent of the Holder to such amendment, action or omission to act.
(b) No waiver of any single breach or default of this Agreement shall
operate as a waiver of any other breach or default of this Agreement, nor shall
any failure to enforce any provision hereof operate as a waiver of such
provision or of any other provision hereof. No written waiver hereunder, unless
it by its own terms explicitly provides to the contrary, shall be construed to
effect a continuing waiver of the provisions being waived and no such waiver in
any instance shall constitute a waiver in any other instance or for any other
purpose or impair the right of the party against whom such waiver is claimed in
all other instances or for all other purposes to require full compliance with
such provision.
(c) Each of the parties hereto shall execute all such further instruments
and documents and take all such further action as any other party hereto may
reasonably require in order to effectuate the terms and purposes of this
Agreement.
(d) With a view to making available the benefits of certain rules and
regulations of the Commission that may permit the sale of the Registrable
Securities to the public without registration, the Company agrees to use its
best efforts to:
(i) Make and keep public information regarding the Company available
as those terms are understood and defined in Rule 144;
(ii) File with the Commission in a timely manner all reports and other
documents required of the Company under the Securities Act and the Exchange
Act; and
(iii) So long as a Holder owns any Registrable Securities, furnish
to the Holder forthwith upon written request a written statement by the
Company as to its compliance with the reporting requirements of Rule 144, a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents so filed as a Holder may reasonably request in
availing itself of any rule or regulation of the Commission allowing a
Holder to sell any such securities without registration.
Section 10. Assignment; Benefit. Except as otherwise expressly provided
-------------------
herein, this Agreement and all of the provisions hereof shall be binding upon
and shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
Section 11. Miscellaneous.
-------------
11.1 Governing Law. This Agreement shall be governed by and construed in
-------------
accordance with the laws of the State of Delaware, without giving regard to the
conflict of laws principles thereof.
11.2 Notices. All notices and requests given pursuant to this Agreement
-------
shall be in writing and shall be made by hand delivery, first-class mail
(registered or certified, return
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receipt requested), confirmed facsimile or overnight air courier guaranteeing
next business day delivery to the relevant address specified below:
If to Holder, to:
Potlatch Corporation
000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: General Counsel
If to Company, to:
Timberland Growth Corporation
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: (901) ___-____
Attention: Chief Executive Officer
Except as otherwise provided in this Agreement, the date of each such notice and
request shall be deemed to be, and the date on which each such notice and
request shall be deemed given shall be: at the time delivered, if personally
delivered or mailed; when receipt is acknowledged, if sent by facsimile; and the
next business day after timely delivery to the courier, if sent by overnight air
courier guaranteeing next business day delivery.
11.3 Entire Agreement; Integration. This Agreement supersedes all prior
-----------------------------
agreements between or among any of the parties hereto with respect to the
subject matter contained herein and therein, and such agreements embody the
entire understanding among the parties relating to such subject matter.
11.4 Injunctive Relief. Each of the parties hereto acknowledges that in
-----------------
the event of a breach by any of them of any material provision of this
Agreement, the aggrieved party may be without an adequate remedy at law. Each
of the parties therefore agrees that in the event of such a breach hereof the
aggrieved party may elect to institute and prosecute proceedings in any court of
competent jurisdiction to enforce specific performance or to enjoin the
continuing breach hereof. By seeking or obtaining any such relief, the
aggrieved party shall not be precluded from seeking or obtaining any other
relief to which it may be entitled.
11.5 Section Headings. Section headings are for convenience of reference
----------------
only and shall not affect the meaning of any provision of this Agreement.
11.6 Counterparts. This Agreement may be executed in any number of
------------
counterparts, each of which shall be an original and all of which shall together
constitute one and the same instrument. All signatures need not be on the same
counterpart.
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11.7 Severability. If any provision of this Agreement shall be invalid or
------------
unenforceable, such invalidity or unenforceability shall not affect the validity
and enforceability of the remaining provisions of this Agreement, unless the
result thereof would be unreasonable, in which case the parties hereto shall
negotiate in good faith as to appropriate amendments hereto.
11.8 Termination. The agreements of the Company contained in this
-----------
Agreement shall continue in full force and effect so long as the Holder holds
any Registrable Securities or limited partnership interests in the Partnership
that may be exchanged for Registrable Securities pursuant to Section 8.5 of the
Partnership Agreement (assuming the satisfaction, waiver or fulfillment of any
requirement for the passage of time, any election to deliver shares by the
Company and any other condition or limitation set forth in the Partnership
Agreement); provided that the right of the Holder to request registration or
--------
inclusion in any registration pursuant to Section 2 or Section 3 hereof shall
terminate at such time as all shares of Registrable Securities held (or which
may be held upon exchange of limited partnership interests in the Partnership
pursuant to Section 8.5 of the Partnership Agreement) by the Holder may
immediately be sold without restriction or limitation as to amount under Rule
144 during any 90-day period.
IN WITNESS WHEREOF, the parties hereto have executed this Registration
Rights Agreement as of the date and year first above written.
POTLATCH CORPORATION
By
------------------------------
Name:
Title:
TIMBERLAND GROWTH CORPORATION
By
------------------------------
Name:
Title:
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