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EXHIBIT 1.1
POTLATCH CORPORATION
_____% DEBENTURES DUE_____
UNDERWRITING AGREEMENT
....................., 19..
Xxxxxxx, Xxxxx & Co.,
Salomon Brothers Inc
c/o Goldman, Xxxxx & Co.,
000 Xxxxxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Ladies and Gentlemen:
Potlatch Corporation, a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
$100,000,000 principal amount of the Debentures specified above (the
"Securities").
1. The Company represents and warrants to, and agrees with,
each of the Underwriters that:
(a) A registration statement on Form S-3 (File No.
33-....) in respect of the Securities has been filed with the
Securities and Exchange Commission (the "Commission"); such
registration statement and any post-effective amendment
thereto, each in the form heretofore delivered to you, and,
excluding exhibits thereto but including all documents
incorporated by reference in the prospectus contained therein,
have been declared effective by the Commission in such form;
no other document with respect to such registration statement
or document incorporated by reference therein has heretofore
been filed with the Commission;
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and no stop order suspending the effectiveness of such
registration statement has been issued and no proceeding for
that purpose has been initiated or threatened by the
Commission (any preliminary prospectus included in such
registration statement or filed with the Commission pursuant
to Rule 424(a) of the rules and regulations of the Commission
under the Securities Act of 1933, as amended (the "Act"), is
hereinafter called a "Preliminary Prospectus"; the various
parts of such registration statement, including all exhibits
thereto but excluding Form T-1 and including (i) the
information contained in the form of final prospectus filed
with the Commission pursuant to Rule 424(b) under the Act in
accordance with Section 5(a) hereof and deemed by virtue of
Rule 430A under the Act to be part of the registration
statement at the time it was declared effective and (ii) the
documents incorporated by reference in the prospectus
contained in the registration statement at the time such part
of the registration statement became effective, each as
amended at the time such part of the registration statement
became effective, are hereinafter collectively called the
"Registration Statement"; such final prospectus, in the form
first filed pursuant to Rule 424(b) under the Act, is
hereinafter called the "Prospectus"; and any reference herein
to any Preliminary Prospectus or the Prospectus shall be
deemed to refer to and include the documents incorporated by
reference therein pursuant to Item 12 of Form S-3 under the
Act, as of the date of such Preliminary Prospectus or
Prospectus, as the case may be; any reference to any amendment
or supplement to any Preliminary Prospectus or the Prospectus
shall be deemed to refer to and include any documents filed
after the date of such Preliminary Prospectus or Prospectus,
as the case may be, under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), and incorporated by reference
in such Preliminary Prospectus or Prospectus, as the case may
be);
(b) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and
each Preliminary Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the
Act and the Trust Indenture Act of 1939, as amended (the
"Trust Indenture Act"), and the rules and regulations of the
Commission thereunder, and did not contain an untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that this
representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an
Underwriter through Xxxxxxx, Sachs & Co. expressly for use
therein;
(c) The documents incorporated by reference in the
Prospectus, when they became effective or were filed with the
Commission, as the case may be, conformed in all material
respects to the requirements of the Act or the Exchange Act,
as applicable, and the rules and regulations of the Commission
thereunder, and none of such documents contained an untrue
statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the
statements therein not misleading; and any further documents
so filed and incorporated by reference in the Prospectus or
any further
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amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may
be, will conform in all material respects to the requirements
of the Act or the Exchange Act, as applicable, and the rules
and regulations of the Commission thereunder and will not
contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the
Company by an Underwriter through Xxxxxxx, Xxxxx & Co.
expressly for use therein;
(d) The Registration Statement conforms, and the
Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will conform, in all
material respects to the requirements of the Act and the Trust
Indenture Act and the rules and regulations of the Commission
thereunder and do not and will not, as of the applicable
effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to
the Prospectus and any amendment or supplement thereto,
contain an untrue statement of a material fact or omit to
state a material fact required to be stated therein or
necessary to make the statements therein not misleading;
provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon
and in conformity with information furnished in writing to the
Company by an Underwriter through Xxxxxxx, Sachs & Co.
expressly for use therein;
(e) Subsequent to the respective dates as of which
information is given in the Registration Statement and the
Prospectus and except as set forth or contemplated in the
Prospectus, (i) the Company has not sustained any loss or
interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from
any labor dispute or court or governmental action, order or
decree which has had a material adverse effect on the Company
and its subsidiaries, considered as a whole; and (ii) there
has not been any material change in the issued and outstanding
capital stock (other than changes that would result from the
exercise by the Company's counterparty of put options
outstanding on the date hereof, which would entitle such
counterparty to sell to the Company 25,000 shares of the
Company's Common Stock on each of December 11, December 13,
December 15 and December 18, 1995) or long-term debt of the
Company and its subsidiaries considered as a whole or any
material adverse change, or any development involving a
prospective material adverse change, in or affecting the
general affairs, management, financial position, stockholders'
equity or results of operations of the Company and its
subsidiaries considered as a whole;
(f) The Company has good title to substantially all
real property owned by it, free and clear of all liens,
encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of
such property considered as a whole and do not interfere with
the use made and proposed to be made of such property by the
Company and any real property and
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buildings held under lease by the Company are held by it under
valid leases with such exceptions as are not material and do
not interfere with the use made and proposed to be made of
such property and buildings by the Company;
(g) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of
business and is in good standing under the laws of each other
jurisdiction where its ownership or leasing of properties
material to the conduct of its business requires such
qualification, or in which the failure to so qualify would
have a material adverse effect upon the operations of the
Company and its subsidiaries considered as a whole;
(h) The authorized capital stock of the Company
consists of 40,000,000 shares of common stock, par value $1.00
per share, and 4,000,000 shares of preferred stock, without
par value, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued
and are fully paid and non-assessable;
(i) The Securities have been duly authorized by the
Company and, when issued and delivered pursuant to this
Agreement, will have been duly executed, authenticated, issued
and delivered and will constitute valid and legally binding
obligations of the Company entitled to the benefits provided
by the indenture dated as of ................, 19.. (the
"Indenture") between the Company and First Trust of
California, National Association, as Trustee (the "Trustee"),
under which they are to be issued, which is substantially in
the form filed as an exhibit to the Registration Statement;
the Indenture has been duly authorized by the Company and duly
qualified under the Trust Indenture Act and, assuming due
authorization, execution and delivery by the Trustee under the
Indenture, constitutes a valid and legally binding instrument,
enforceable in accordance with its terms, subject, as to
enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles; and the
Securities and the Indenture will conform to the descriptions
thereof in the Prospectus;
(j) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the
Securities, the Indenture and this Agreement and the
consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default
under, any material indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument to which
the Company is a party or by which the Company is bound, nor
will such action result in any violation of the provisions of
the Restated Certificate of Incorporation, as amended, or
By-laws of the Company or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its properties; and no
consent, approval, authorization, order, registration or
qualification of or with any such court or
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governmental agency or body is required for the issue and sale
of the Securities or the consummation by the Company of the
other transactions contemplated by this Agreement or the
Indenture, except, such as have been obtained under the Act
and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be
required under state securities or Blue Sky laws in connection
with the purchase and distribution of the Securities by the
Underwriters;
(k) Other than as set forth or contemplated in the
Prospectus, there are no legal or governmental proceedings
pending to which the Company is a party or of which any
property of the Company is the subject which, if determined
adversely to the Company, would individually or in the
aggregate have a material adverse effect on the financial
position, stockholders' equity or results of operations of the
Company and its subsidiaries considered as a whole; and, to
the best of the Company's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
(l) Neither the Company nor any of its affiliates
does business with the government of Cuba or with any person
or affiliate located in Cuba within the meaning of Section
517.075, Florida Statutes; and
(m) KPMG Peat Marwick LLP, who have certified certain
consolidated financial statements of the Company are
independent certified public accountants as required by the
Act and the rules and regulations of the Commission
thereunder.
2. Subject to the terms and conditions herein set
forth, the Company agrees to issue and sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at a purchase price of .....% of
the principal amount thereof, plus accrued interest, if any, from
...................., 19.. to the Time of Delivery (as defined below)
hereunder, the principal amount of Securities set forth opposite the
name of such Underwriter in Schedule I hereto.
3. Upon the authorization by you of the release of the
Securities, the several Underwriters propose to offer the Securities
for sale upon the terms and conditions set forth in the Prospectus.
4. (a) The Securities to be purchased by each
Underwriter hereunder will be represented by one or more definitive
global Securities in book-entry form which will be deposited by or on
behalf of the Company with The Depository Trust Company ("DTC") or its
designated custodian. The Company will deliver the Securities to
Xxxxxxx, Xxxxx & Co., for the account of each Underwriter, against
payment by or on behalf of such Underwriter of the purchase price
therefor by wire transfer to an account designated by the Company in
Federal (same day) funds, by causing DTC to credit the Securities to
the account of Xxxxxxx, Sachs & Co. at DTC. The Company will cause the
certificates representing the Securities to be made available to
Xxxxxxx, Xxxxx & Co. for checking at least twenty-four hours prior to
the Time of Delivery (as defined below) at the office of DTC or its
designated custodian (the "Designated Office"). The time and date of
such
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delivery and payment shall be 6:30 a.m., San Francisco time, on
....................., 19.. or such other time and date as Xxxxxxx,
Sachs & Co. and the Company may agree upon in writing. Such time and
date are herein called the "Time of Delivery".
(b) The documents to be delivered at the Time of
Delivery by or on behalf of the parties hereto pursuant to
Section 7 hereof, including the cross-receipt for the
Securities and any additional documents requested by the
Underwriters pursuant to Section 7(j) hereof, will be delivered
at the offices of Shearman & Sterling, 000 Xxxxxxxxxx Xxxxxx,
Xxxxx 0000, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000 (the "Closing
Location"), and the Securities will be delivered at the
Designated Office, all at the Time of Delivery. A meeting will
be held at the Closing Location at 1:00 p.m., San Francisco
time, on the New York Business Day next preceding the Time of
Delivery, at which meeting the final drafts of the documents to
be delivered pursuant to the preceding sentence will be
available for review by the parties hereto. For the purposes of
this Section 4, "New York Business Day" shall mean each Monday,
Tuesday, Wednesday, Thursday and Friday which is not a day on
which banking institutions in New York City are generally
authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by
you and to file such Prospectus pursuant to Rule 424(b) under
the Act not later than the Commission's close of business on
the second business day following the execution and delivery of
this Agreement, or, if applicable, such earlier time as may be
required by Rule 430A(a)(3) under the Act; to make no further
amendment or any supplement to the Registration Statement or
Prospectus prior to the Time of Delivery unless you shall have
consented to such amendment or supplement, which such consent
shall not be unreasonably withheld, promptly after reasonable
notice thereof; to advise you, promptly after it receives
notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or
any supplement to the Prospectus or any amended Prospectus has
been filed and to furnish you with copies thereof; to file
promptly all reports and any definitive proxy or information
statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for
so long as the delivery of a prospectus is required in
connection with the offering or sale of the Securities; to
advise you, promptly after it receives notice thereof, of the
issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus
or prospectus, of the suspension of the qualification of the
Securities for offering or sale in any jurisdiction, of the
initiation or threatening of any proceeding for any such
purpose, or of any request by the Commission for the amending
or supplementing of the Registration Statement or Prospectus or
for additional information; and, in the event of the issuance
of any stop order or of any order preventing or suspending the
use of any Preliminary Prospectus or prospectus or suspending
any such qualification, to promptly use its best efforts to
obtain the withdrawal of such order;
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(b) Promptly from time to time to take such action as
you may reasonably request to qualify the Securities for
offering and sale under the securities laws of such
jurisdictions (within the United States including its
territories and possessions) as you may request and to comply
with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be
necessary to complete the distribution of the Securities,
provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the
New York Business Day next succeeding the date of this
Agreement and from time to time, to furnish the Underwriters
with copies of the Prospectus in New York City in such
quantities as you may from time to time reasonably request,
and, if the delivery of a prospectus is required under the Act
at any time prior to the expiration of nine months after the
time of issue of the Prospectus in connection with the offering
or sale of the Securities and if at such time any event shall
have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in
order to make the statements therein, in light of the
circumstances under which they were made when such Prospectus
is delivered, not misleading, or, if for any other reason it
shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any
document incorporated by reference in the Prospectus in order
to comply with the Act, the Exchange Act or the Trust Indenture
Act, to notify you and upon your request to file such document
and to prepare and furnish without charge to each Underwriter
and to any dealer in securities as many copies as you may from
time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement
or omission or effect such compliance; and in case any
Underwriter is required to deliver a prospectus under the Act
in connection with sales of any of the Securities at any time
nine months or more after the time of issue of the Prospectus,
upon your request but at the expense of such Underwriter, to
prepare and deliver to such Underwriter as many copies as you
may request of an amended or supplemented Prospectus complying
with Section 10(a)(3) of the Act;
(d) To make generally available to its security
holders as soon as practicable, but in any event not later than
eighteen months after the effective date of the Registration
Statement (as defined in Rule 158(c)), an earnings statement of
the Company and its subsidiaries (which need not be audited)
complying with Section 11(a) of the Act and the rules and
regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the date hereof
and continuing to and including the later of the Time of
Delivery and such earlier time as you may notify the Company,
not to offer, sell, contract to sell or otherwise dispose of,
except as provided hereunder, any securities of the Company
which are substantially similar to the Securities, without your
prior written consent; and
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(f) During a period of three years from the effective
date of the Registration Statement, to furnish to you copies of
all reports or other communications (financial or other)
furnished to stockholders, and to deliver to you (i) as soon as
they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any
national securities exchange on which the Securities or any
class of securities of the Company is listed; and (ii) such
additional information concerning the business and financial
condition of the Company as you may from time to time
reasonably request (such financial statements to be on a
consolidated basis to the extent the accounts of the Company
and its subsidiaries are consolidated in reports furnished to
its stockholders generally or to the Commission);
6. The Company covenants and agrees with the several
Underwriters that the Company will pay or cause to be paid the
following: (i) the fees, disbursements and expenses of the Company's
counsel and accountants in connection with the registration of the
Securities under the Act and all other expenses in connection with the
preparation, printing and filing of the Registration Statement, any
Preliminary Prospectus and the Prospectus and amendments and
supplements thereto and the mailing and delivering of copies thereof to
the Underwriters and dealers; (ii) the reasonable cost of printing or
producing any Agreement among Underwriters, this Agreement, the
Indenture, the Blue Sky and Legal Investment Memoranda, closing
documents (including any compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the
Securities; (iii) all reasonable expenses in connection with the
qualification of the Securities for offering and sale under state
securities laws as provided in Section 5(b) hereof, including the
reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky
and legal investment surveys; (iv) any fees charged by securities
rating services for rating the Securities; (v) the filing fees incident
to, and the fees and disbursements of counsel for the Underwriters in
connection with, any required review by the National Association of
Securities Dealers, Inc. of the terms of the sale of the Securities;
(vi) the cost of preparing the Securities ; (vii) the fees and expenses
of the Trustee and any agent of the Trustee and the fees and
disbursements of counsel for the Trustee in connection with the
Indenture and the Securities; and (viii) all other costs and expenses
incident to the performance of its obligations hereunder which are not
otherwise specifically provided for in this Section. It is understood,
however, that, except as provided in this Section, and Sections 8 and
11 hereof, the Underwriters will pay all of their own costs and
expenses, including the fees of their counsel, transfer taxes on resale
of any of the Securities by them, and any advertising expenses
connected with any offers they may make.
7. The obligations of the Underwriters hereunder shall be
subject, in their reasonable discretion, to the condition that all
representations and warranties and other statements of the Company
herein are, at and as of the Time of Delivery, true and correct, the
condition that the Company shall have performed all of its obligations
hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus shall have been filed with the
Commission pursuant to Rule 424(b) within the applicable time
period prescribed for such filing
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by the rules and regulations under the Act and in accordance
with Section 5(a) hereof; no stop order suspending the
effectiveness of the Registration Statement or any part
thereof shall have been issued and no proceeding for that
purpose shall have been initiated or threatened by the
Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your
reasonable satisfaction;
(b) Shearman & Sterling, counsel for the Underwriters,
shall have furnished to you such opinion or opinions (a draft
of each such opinion is attached as Annex II(a) hereto), dated
the Time of Delivery, with respect to the matters covered in
paragraphs (i), (ii), (iii) and (iv) of subsection (c) below as
well as such other related matters as you may reasonably
request, and such counsel shall have received such papers and
information as they may reasonably request to enable them to
pass upon such matters;
(c) Pillsbury Madison & Sutro LLP, counsel for the
Company, shall have furnished to you their written opinion (a
draft of each such opinion is attached as Annex II(b) hereto),
dated the Time of Delivery, in form and substance satisfactory
to you, to the effect that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good
standing under the laws of the State of Delaware and
has the corporate power and authority to own its
property and conduct its business as described in the
Prospectus;
(ii) This Agreement has been duly authorized,
executed and delivered by the Company;
(iii) The Securities have been duly
authorized, executed, authenticated, issued and
delivered and constitute valid and legally binding
obligations of the Company entitled to the benefits
provided by the Indenture;
(iv) The Indenture has been duly qualified
under the Trust Indenture Act and has been duly
authorized, executed and delivered by the Company and
constitutes a valid and legally binding instrument,
enforceable in accordance with its terms;
(v) The statements set forth in the
Prospectus under the caption "Description of
Debentures", insofar as they purport to constitute a
summary of the terms of the Securities and the
Indenture, are accurate, complete and fair;
(vi) The issue and sale of the Securities and
the compliance by the Company with all of the
provisions of this Agreement, the Indenture and the
Securities and the consummation of the transactions
herein and therein contemplated will not result in any
violation of the provisions of the Restated
Certificate of Incorporation, as amended, or By-laws
of the
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Company or any statute or any order, rule or
regulation known to such counsel of any court or
governmental agency or body having jurisdiction over
the Company or any of its properties;
(vii) No consent, approval, authorization,
order, registration or qualification of or with any
governmental agency or body, or, to the best of such
counsel's knowledge, any court is required for the
issue and sale of the Securities or the consummation
by the Company of the other transactions contemplated
by this Agreement or the Indenture, except such as
have been obtained under the Act and the Trust
Indenture Act and as have been obtained or may be
required by the securities or Blue Sky laws of the
various states in connection with the purchase and
distribution of the Securities by the Underwriters;
and
(viii) (i) The documents filed pursuant to the
Exchange Act and incorporated by reference in the
Prospectus or any further amendment or supplement
thereto made by the Company prior to the Time of
Delivery (except for financial statements and
schedules included therein, as to which such counsel
need express no opinion), complied when so filed as to
form in all material respects with the Exchange Act,
and the applicable rules and regulations of the
Commission thereunder, and (ii) the Registration
Statement and the Prospectus and any further
amendments and supplements thereto made by the Company
prior to the Time of Delivery (except for financial
statements and schedules included therein, as to which
such counsel need express no opinion) comply as to
form in all material respects with the requirements of
the Act and the Trust Indenture Act and the rules and
regulations of the Commission thereunder;
In addition to the matters set forth above, such
opinion shall also include a statement to the effect that they
have no reason to believe that, as of its effective date, the
Registration Statement or any further amendment thereto made by
the Company prior to the Time of Delivery (other than the
financial statements and related schedules and other financial
data included therein, as to which such counsel need express no
opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading or
that, as of its date, the Prospectus or any further amendment
or supplement thereto made by the Company prior to the Time of
Delivery (other than the financial statements and related
schedules and other financial data included therein, as to
which such counsel need express no opinion) contained an untrue
statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading or
that, as of the Time of Delivery, either the Registration
Statement or the Prospectus or any further amendment or
supplement thereto made by the Company prior to the Time of
Delivery (other than the financial statements and related
schedules and other financial data included therein, as to
which such counsel need express no opinion) contains an untrue
statement of a material fact or omits to state a material fact
necessary to make the statements therein, in the light of the
circumstances under which they were made,
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not misleading;
(d) The General Counsel of the Company shall have
furnished to you a written opinion (a draft of each such opinion is
attached as Annex II(c) hereof), dated the Time of Delivery, in form
and substance satisfactory to you, to the effect that:
(i) The issue and sale of the Securities and the
compliance by the Company with all of the provisions of the
Securities, the Indenture and this Agreement and the
consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach of
any of the terms or provisions of, or constitute a default
under, any material indenture, mortgage, deed of trust, loan
agreement or other material agreement or instrument known to
such counsel to which the Company is a party or by which the
Company is bound;
(ii) To the best of such counsel's knowledge,
other than as set forth or contemplated in the Prospectus,
there are no legal or governmental proceedings pending to
which the Company is a party or of which any property of the
Company is the subject which, if determined adversely to the
Company, would individually or in the aggregate have a
material adverse effect on the financial position,
stockholders' equity or results of operations of the Company
and its subsidiaries considered as a whole; and, to the best
of such counsel's knowledge, no such proceedings are
threatened or contemplated by governmental authorities or
threatened by others;
(iii) The authorized capital stock of the Company
consists of 40,000,000 shares of common stock, par value $1.00
per share, and 4,000,000 shares of preferred stock, without
par value, and all of the issued shares of capital stock of
the Company have been duly and validly authorized and issued
and are fully paid and non-assessable; and
(iv) The Company has been duly qualified as a
foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business so
as to require such qualification except where the failure(s)
to be so qualified, taken in the aggregate, would not have a
material adverse effect on the business, operations or
financial condition of the Company and its subsidiaries taken
as a whole (such counsel being entitled to rely in respect of
the opinion in this clause upon opinions of local counsel and
in respect of matters of fact upon certificates of officers of
the Company, provided that such counsel shall state that they
believe that both you and they are justified in relying upon
such opinions and certificates);
In addition to the matters set forth above, such opinion shall
also include a statement to the effect that he has no reason to believe that
(i) as of its effective date,
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the Registration Statement or any further amendment thereto made by the Company
prior to the Time of Delivery (other than the financial statements and related
schedules and other financial data included therein, as to which such counsel
need express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading or that, as of its date, the
Prospectus or any further amendment or supplement thereto made by the Company
prior to the Time of Delivery (other than the financial statements and related
schedules and other financial data included therein, as to which such counsel
need express no opinion) contained an untrue statement of a material fact or
omitted to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading or
that, as of the Time of Delivery, either the Registration Statement or the
Prospectus or any further amendment or supplement thereto made by the Company
prior to the Time of Delivery (other than the financial statements and related
schedules and other financial data included therein, as to which such counsel
need express no opinion) contains an untrue statement of a material fact or
omits to state a material fact necessary to make the statements therein, in the
light of the circumstances under which they were made, not misleading, or (ii)
that any of the documents incorporated by reference in the Prospectus, when
such documents were filed with the Commission, contained an untrue statement of
a material fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were
made when such documents were so filed, not misleading;
(e) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 6:30 a.m., San Francisco time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at
the Time of Delivery, KPMG Peat Marwick LLP shall have furnished to you
a letter or letters, dated the respective dates of delivery thereof, in
form and substance satisfactory to you, to the effect set forth in
Annex I hereto (the executed copy of the letter delivered prior to the
execution of this Agreement is attached as Annex I(a) hereto and a
draft of the form of letter to be delivered on the effective date of
any post-effective amendment to the Registration Statement and as of
each Time of Delivery is attached as Annex I(b) hereto);
(f) Subsequent to the respective dates as of which
information is given in the Registration Statement and the Prospectus
and except as set forth and contemplated in the Prospectus, (i) the
Company shall not have sustained any loss or interference with its
business from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree which has had a material adverse
effect on the Company and its subsidiaries considered as a whole, and
(ii) there shall not have been any material change in the issued and
outstanding capital stock (other than changes that would result from
the exercise by the Company's counterparty of put options outstanding
on the date hereof, which would entitle such counterparty to sell to
the Company 25,000 shares of the Company's Common Stock on each of
December 11, December 13, December 15 and December 18, 1995) or
long-term debt of the Company or any of its subsidiaries or any change,
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or any development involving a prospective change, in or affecting the
general affairs, management, financial position, stockholders' equity
or results of operations of the Company and its subsidiaries considered
as a whole, the effect of which, in any such case described in Clause
(i) or (ii), is in your judgment so material and adverse as to make it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated
in the Prospectus;
(g) On or after the date hereof (i) no downgrading shall
have occurred in the rating accorded the Company's debt securities by
any "nationally recognized statistical rating organization", as that
term is defined by the Commission for purposes of Rule 436(g)(2) under
the Act, and (ii) no such organization shall have publicly announced
that it has under surveillance or review, with possible negative
implications, its rating of any of the Company's debt securities;
(h) On or after the date hereof there shall not have
occurred any of the following: (i) a suspension or material limitation
in trading in securities generally on the New York Stock Exchange;
(ii) a suspension or material limitation in trading in the Company's
securities on the New York Stock Exchange; (iii) a general moratorium
on commercial banking activities declared by either Federal or New York
or California State authorities; or (iv) the outbreak or escalation of
hostilities involving the United States or the declaration by the
United States of a national emergency or war, if the effect of any such
event specified in this Clause (iv) in your judgment makes it
impracticable or inadvisable to proceed with the public offering or the
delivery of the Securities on the terms and in the manner contemplated
in the Prospectus;
(i) The Company shall have complied with the provisions of
Section 5(c) hereof with respect to the furnishing of Prospectuses on
the New York Business Day next succeeding the date of this Agreement;
and
(j) The Company shall have furnished or caused to be
furnished to you at the Time of Delivery certificates of officers of
the Company satisfactory to you as to the accuracy of the
representations and warranties of the Company herein at and as of such
Time of Delivery, as to the performance by the Company of all of its
obligations hereunder to be performed at or prior to such Time of
Delivery, as to the matters set forth in subsections (a) and (f) of
this Section and as to such other matters as you may reasonably
request.
8. (a) The Company will indemnify and hold harmless each
Underwriter against any losses, claims, damages or liabilities, joint or
several, to which such Underwriter may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon an untrue statement or
alleged untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
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necessary to make the statements therein not misleading, and, except as
provided in subsection (c) below, will reimburse each Underwriter for any legal
or other expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses are
incurred; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage or liability arises out of
or is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any Underwriter
through Xxxxxxx, Xxxxx & Co. expressly for use therein.
(b) Each Underwriter will indemnify and hold harmless the
Company against any losses, claims, damages or liabilities to which the
Company may become subject, under the Act or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof)
arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in any Preliminary Prospectus, the Registration Statement or
the Prospectus or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through Xxxxxxx, Sachs & Co. expressly for use therein;
and, except as provided in subsection (c) below, will reimburse the
Company for any legal or other expenses reasonably incurred by the
Company in connection with investigating or defending any such action
or claim as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under
subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying
party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel reasonably satisfactory to such
indemnified party (who shall not, except with the consent of the
indemnified party, be counsel to the indemnifying party in such
action), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under
such subsection for any legal expenses of other counsel or any other
expenses, in each case subsequently incurred by such indemnified party,
in connection with the defense thereof other than reasonable costs of
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investigation.
(d) If the indemnification provided for in this Section 8
is unavailable to or insufficient to hold harmless an indemnified party
under subsection (a) or (b) above in respect of any losses, claims,
damages or liabilities (or actions in respect thereof) referred to
therein in respect of which indemnification has been sought pursuant to
subsection (c) above (whether or not on a timely basis), then each
indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (or actions in respect thereof) 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
Securities. If, however, the allocation provided by the immediately
preceding sentence is not permitted by applicable law or if the
indemnified party failed to give prompt notice as required under
subsection (c) above, then each indemnifying party shall contribute to
such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits
but also the relative fault of the Company on the one hand and the
Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
(or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the
Company on the one hand and the Underwriters on the other shall be
deemed to be in the same proportion as the total net proceeds from the
offering (before deducting expenses) received by the Company bear to
the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover page
of the Prospectus. The relative fault 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 on the one
hand or the Underwriters on the other 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 subsection (d) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take account of the equitable
considerations referred to above in this subsection (d). The amount
paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred
to above in this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim.
Notwithstanding the provisions of this subsection (d), no Underwriter
shall be required to contribute any amount in excess of the amount by
which the total price at which the Securities underwritten by it and
distributed to the public were offered to the 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 Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
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misrepresentation. The Underwriters' obligations in this
subsection (d) to contribute are several in proportion to
their respective underwriting obligations and not joint.
(e) The obligations of the Company under this
Section 8 shall be in addition to any liability which the
Company may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations
of the Underwriters under this Section 8 shall be in addition
to any liability which the respective Underwriters may
otherwise have and shall extend, upon the same terms and
conditions, to each officer and director of the Company and to
each person, if any, who controls the Company within the
meaning of the Act.
9. (a) If any Underwriter shall default in its
obligation to purchase the Securities which it has agreed to purchase
hereunder, you may in your discretion arrange for you or another party
or other parties to purchase such Securities on the terms contained
herein. If within thirty-six hours after such default by any
Underwriter you do not arrange for the purchase of such Securities,
then the Company shall be entitled to a further period of thirty-six
hours within which to procure another party or other parties
satisfactory to you to purchase such Securities on such terms. In the
event that, within the respective prescribed periods, you notify the
Company that you have so arranged for the purchase of such Securities,
or the Company notifies you that it has so arranged for the purchase of
such Securities, you or the Company shall have the right to postpone
the Time of Delivery for a period of not more than seven days, in order
to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to
the Registration Statement or the Prospectus which in your opinion may
thereby be made necessary. The term "Underwriter" as used in this
Agreement shall include any person substituted under this Section with
like effect as if such person had originally been a party to this
Agreement with respect to such Securities, and the term "you" for
purposes of this Section shall not include any Underwriter which has
defaulted in its obligation to purchase the Securities.
(b) If, after giving effect to any arrangements for
the purchase of the Securities of a defaulting Underwriter or
Underwriters by you and the Company as provided in subsection
(a) above, the aggregate principal amount of such Securities
which remains unpurchased does not exceed one-eleventh of the
aggregate principal amount of all the Securities, then the
Company shall have the right to require each non-defaulting
Underwriter to purchase the principal amount of Securities
which such Underwriter agreed to purchase hereunder and, in
addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the principal amount of
Securities which such Underwriter agreed to purchase
hereunder) of the Securities of such defaulting Underwriter or
Underwriters for which such arrangements have not been made;
but nothing herein shall relieve a defaulting Underwriter from
liability for its default.
(c) If, after giving effect to any arrangements for
the purchase of the Securities of a defaulting Underwriter or
Underwriters by you and the Company as
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provided in subsection (a) above, the aggregate principal
amount of Securities which remains unpurchased exceeds
one-eleventh of the aggregate principal amount of all the
Securities, or if the Company shall not exercise the right
described in subsection (b) above to require non-defaulting
Underwriters to purchase Securities of a defaulting
Underwriter or Underwriters, then this Agreement shall
thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company, except for the
expenses to be borne by the Company and the Underwriters as
provided in Section 6 hereof and the indemnity and
contribution agreements in Section 8 hereof; but nothing
herein shall relieve a defaulting Underwriter from liability
for its default.
10. The respective indemnities, agreements,
representations, warranties and other statements of the Company and the
several Underwriters, as set forth in this Agreement or made by or on
behalf of them, respectively, pursuant to this Agreement, shall remain
in full force and effect, regardless of any investigation (or any
statement as to the results thereof) made by or on behalf of any
Underwriter or any controlling person of any Underwriter, or the
Company, or any officer or director or controlling person of the
Company, and shall survive delivery of and payment for the Securities.
11. If this Agreement shall be terminated pursuant to
Section 9 hereof, the Company shall not then be under any liability to
any Underwriter except as provided in Sections 6 and 8 hereof; but, if
for any other reason, the Securities are not delivered by or on behalf
of the Company as provided herein, the Company will reimburse the
Underwriters for all out-of-pocket expenses approved in writing by you,
including fees and disbursements of counsel, reasonably incurred by the
Underwriters in making preparations for the purchase, sale and delivery
of the Securities, but the Company shall then be under no further
liability to any Underwriter except as provided in Sections 6 and 8
hereof.
12. In all dealings hereunder, you shall act on behalf of
each of the Underwriters, and the parties hereto shall be entitled to
act and rely upon any statement, request, notice or agreement on behalf
of the Underwriters made or given by you jointly or by Xxxxxxx, Xxxxx &
Co. on behalf of both of you.
All statements, requests, notices and agreements hereunder
shall be in writing, and if to the Underwriters shall be delivered or
sent by mail, telex or facsimile transmission to you in care of
Xxxxxxx, Sachs & Co., 00 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Registration Department; and if to the Company shall be
delivered or sent by mail, telex or facsimile transmission to the
address of the Company set forth in the Registration Statement,
Attention: Secretary; provided, however, that any notice to an
Underwriter pursuant to Section 8(c) hereof shall be delivered or sent
by mail, telex or facsimile transmission to such Underwriter at its
address set forth in its Underwriters' Questionnaire, or telex
constituting such Questionnaire, which address will be supplied to the
Company by you upon request. Any such statements, requests, notices or
agreements shall take effect upon receipt thereof.
13. This Agreement shall be binding upon, and inure
solely to the benefit of, the Underwriters, the Company and, to the
extent provided in Sections 8 and 10 hereof,
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the officers and directors of the Company and each person who controls
the Company or any Underwriter, and their respective heirs, executors,
administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No
purchaser of any of the Securities from any Underwriter shall be deemed
a successor or assign by reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As
used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
15. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
16. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall
be deemed to be an original, but all such respective counterparts
shall together constitute one and the same instrument.
If the foregoing is in accordance with your understanding,
please sign and return to us five counterparts hereof, and upon the
acceptance hereof by you, on behalf of each of the Underwriters, this
letter and such acceptance hereof shall constitute a binding agreement
between each of the Underwriters and the Company. It is understood
that your acceptance of this letter on behalf of each of the
Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to
the Company for examination upon request, but without warranty on your
part as to the authority of the signers thereof.
Very truly yours,
Potlatch Corporation
By:
Name:
Title:
Accepted as of the date hereof:
Xxxxxxx, Xxxxx & Co.
Xxxxxxx Xxxxxxxx Inc
By:
.........................................
(Xxxxxxx, Sachs & Co.)
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SCHEDULE I
PRINCIPAL
AMOUNT OF
SECURITIES
TO BE
UNDERWRITER PURCHASED
----------- ----------
Xxxxxxx, Xxxxx & Co.
Salomon Brothers Inc
Total . . . . . . . . . . . . . . . . . . . . . . . . $100,000,000
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