EXHIBIT 3
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REGISTRATION RIGHTS AGREEMENT
Dated as of July 1, 1999
between
PLUM CREEK TIMBER COMPANY, INC.
and
THE PARTIES NAMED HEREIN
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TABLE OF CONTENTS
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PAGE
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Section 1. Definitions............................................ 1
Section 2. Demand Registrations................................... 4
Section 3. Piggyback Registrations................................ 7
Section 4. Hold-back Agreements................................... 8
Section 5. Registration Procedures................................ 9
Section 6. Registration Expenses.................................. 14
Section 7. Indemnification........................................ 15
Section 8. Rules 144 and 144A..................................... 18
Section 9. Underwritten Registrations............................. 18
Section 10. Covenants of Holders................................... 19
Section 11. Miscellaneous.......................................... 19
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REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and
entered into as of July 1, 1999, by and among PLUM CREEK TIMBER COMPANY, INC., a
Delaware corporation (the "Company"), and each of the parties from time to time
executing a signature page hereto (each an "Investor" and collectively the
"Investors").
WHEREAS, pursuant to an Amended and Restated Agreement and Plan of
Conversion, dated as of July 17, 1998 (the "Conversion Agreement"), by and among
the Company, Plum Creek Timber Company, L.P., and Plum Creek Management Company,
L.P., the Company has agreed to issue to the Investors, upon the terms and
subject to the conditions set forth in the Conversion Agreement, shares of
common stock, par value $.01 per share, of the Company and shares of special
voting stock, par value $.01 per share, of the Company (the "Special Voting
Stock");
WHEREAS, in the Conversion Agreement, the Company has agreed to
provide the registration rights set forth in this Agreement; and
WHEREAS, the execution and delivery of this Agreement is a condition
to the Closing (as defined in the Conversion Agreement).
NOW THEREFORE, in consideration of the mutual covenants and
agreements set forth herein, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
intending to be legally bound hereby, agree as follows:
Section 1. Definitions.
As used in this Agreement, the following terms shall have the meanings
set forth below:
"Charter" means the Certificate of Incorporation of the Company, as
amended from time to time.
"Commission" means the Securities and Exchange Commission or any other
Federal agency at the time administering the Securities Act.
"Common Stock" means the Company's common stock, par value $.01 per
share, or any other shares of capital stock or other securities of the Company
into which such shares of Common Stock shall be reclassified or changed,
including, by reason of a merger, consolidation, reorganization or
recapitalization. If the Common Stock has been so reclassified or changed, or
if the Company pays a dividend or makes a distribution on the Common Stock in
shares of capital stock, or subdivides (or combines) its outstanding shares of
Common Stock into a greater (or smaller) number of shares of Common Stock, a
share of Common Stock shall be deemed to be such number of shares of stock and
amount of other securities to which a holder of a share of Common Stock
outstanding immediately prior to such change, reclassification, exchange,
dividend, distribution, subdivision or combination would be entitled.
"Delay Period" has the meaning set forth in Section 2(d) of this
Agreement.
"Demand Notice" has the meaning set forth in Section 2(a) of this
Agreement.
"Demand Registration" has the meaning set forth in Section 2(a) of
this Agreement.
"Effectiveness Period" has the meaning set forth in Section 2(d) of
this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
and the rules and regulations of the Commission thereunder.
"Holder" means a person who owns Registrable Securities and is either
(i) an Investor or a Permitted Transferee of an Investor that has agreed to be
bound by the terms of this Agreement as if such person were an Investor, (ii)
upon the death of any Holder, the executor of the estate of such Holder or such
Holder's heirs, devisees, legatees or assigns or (iii) upon the disability of
any Holder, any guardian or conservator of such Holder.
"Interruption Period" has the meaning set forth in Section 5(o) of
this Agreement.
"Losses" has the meaning set forth in Section 7(a) of this Agreement.
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"Misstatement/Omission" has the meaning set forth in Section 7(a) of
this Agreement.
"NASD" means the National Association of Securities Dealers, Inc.
"Other Security Holders" has the meaning set forth in Section 2(b) of
this Agreement.
"Permitted Transferee" means, with respect to any Person or Persons,
(i) any natural person who is related by blood or marriage to any such Person,
(ii) any trust or partnership of which there are no principal beneficiaries or
partners, as the case may be, other than any such Person or Permitted
Transferees of such Person, (iii) any charitable foundation over which any such
Person has discretionary authority, (iv) any other Person that directly or
indirectly controls or is controlled by or is under common control with such
Person, (v) any partners or members of such Person, and (vi) any heirs or
executors of any such Person.
"Person" means any natural person, corporation, partnership, firm,
association, trust, government, governmental agency, limited liability company
or any other entity, whether acting in an individual, fiduciary or other
capacity.
"Piggyback Registration" has the meaning set forth in Section 3(a) of
this Agreement.
"Registrable Securities" means (i) the shares of Common Stock issued
to the Investors pursuant to the Conversion Agreement, (ii) the shares of Common
Stock issuable upon Conversion of the Special Voting Stock and (iii) any Common
Stock issued or issuable with respect to such Common Stock referred to above by
way of stock dividends or stock splits or in connection with a combination of
shares, recapitalization, merger, consolidation, or other reorganization or
otherwise. As to any particular Registrable Securities, such securities will
cease to be Registrable Securities when (i) they have been distributed to the
public pursuant to an offering registered under the Securities Act, (ii) they
have been distributed to the public pursuant to Rule 144 (or any successor
provision) under the Securities Act or (iii) they are eligible for immediate
sale pursuant to Rule 144(k) under the Securities Act.
"Registration Statement" means any registration statement under the
Securities Act of the Company that covers any of the Registrable Securities
pursuant to the provisions of this Agreement, including the related prospectus
and any information
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deemed to be a part of such prospectus pursuant to Rule 430A under the
Securities Act, all amendments and supplements to such registration statement or
prospectus, including pre- and post-effective amendments (including any
registration statement filed pursuant to Rule 462(b) under the Securities Act),
all exhibits thereto and all material incorporated by reference or deemed to be
incorporated by reference in such registration statement.
"Required Investors" means Holders of at least 25% of the aggregate
amount of all Registrable Securities.
"Securities Act" means the Securities Act of 1933, as amended, or any
similar Federal statute, and the rules and regulations of the Commission
promulgated thereunder.
"Special Voting Stock" has the meaning set forth in the recitals
hereto.
Unless otherwise stated, other capitalized terms contained herein have
the meanings set forth in the Conversion Agreement.
Section 2. Demand Registrations.
(a) The Holders shall have the right, commencing on the first
anniversary of the date hereof by written notice (the "Demand Notice") given to
the Company, to request the Company to register under and in accordance with the
provisions of the Securities Act all or part of the Registrable Securities
designated by such Holders (a "Demand Registration"). Upon receipt of any such
Demand Notice from any Holder, the Company will promptly notify all other
Holders of the receipt of such Demand Notice and allow them the opportunity to
include Registrable Securities held by them in the proposed registration by
submitting their own Demand Notice. Notwithstanding anything herein to the
contrary, the Company shall not be required to honor a request for a Demand
Registration if the Registrable Securities requested by the initiating Holders
to be so registered does not constitute at least one million shares (or any
lesser number constituting all of the then-remaining shares) of Common Stock
(subject to adjustment in the event of any reclassification, recapitalization,
stock split, combination or exchange of the Common Stock, or any dividend on the
Common Stock payable in stock or other securities). The Holders shall not be
entitled to make a Demand Notice prior to six months following the last date the
Company is required to keep a previously demanded Registration Statement
effective pursuant to Section 2(d) hereof.
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(b) Subject to paragraph (a) above, as soon as practicable, but
in any event within 60 days of the date on which the Company first receives a
Demand Notice pursuant to Section 2(a) hereof, the Company shall file with the
Commission a Registration Statement on the appropriate form for the registration
and sale of the total number of Registrable Securities specified in such Demand
Notice in accordance with the intended method or methods of distribution
specified by the Holders in such Demand Notice. Subject to paragraph (h) below,
the Company may include in such registration other securities for sale for its
own account or for the account of any other holders of Common Stock ("Other
Security Holders"). The Company shall use reasonable best efforts to cause such
Registration Statement to be declared effective by the Commission as soon as
reasonably practicable.
(c) Subject to Section 2(d), upon the occurrence of any event
that would cause the Registration Statement (A) to contain a material
misstatement or omission or (B) to be not effective and usable for resale of
Registrable Securities during the period that such Registration Statement is
required to be effective and usable, the Company shall file an amendment to the
Registration Statement as soon as reasonably practicable, in the case of clause
(A), correcting any such misstatement or omission and, in the case of either
clause (A) or (B), use reasonable best efforts to cause such amendment to be
declared effective and such Registration Statement to become usable as soon as
reasonably practicable thereafter.
(d) The Company agrees to use reasonable best efforts to keep
any Registration Statement filed pursuant to this Section 2 continuously
effective and usable for the sale of Registrable Securities (i) until 180 days
from the date on which the Commission declares such Registration Statement
effective, or (ii) until all the Registrable Securities covered by such
Registration Statement have been sold pursuant to such Registration Statement,
if earlier, in either case as such period may be extended pursuant to this
Section 2. Notwithstanding the foregoing, the Company shall have the right to
delay the filing of any Registration Statement otherwise required to be prepared
and filed by the Company pursuant to this Section 2, or to suspend the use of
any Registration Statement, for a period not in excess of 90 days (a "Delay
Period") if any executive officer of the Company determines that in such
executive officer's reasonable judgment and good faith the registration and
distribution of the Registrable Securities covered or to be covered by such
Registration Statement would materially interfere with any pending financing,
acquisition, reorganization or other material transaction involving the Company
or any of its subsidiaries or would require disclosure of any other material
corporate development that the Company is not otherwise required or
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prepared to disclose. The Company will promptly give the Holders written notice
of such determination and an approximation of the period of the anticipated
delay; provided, however, that the aggregate number of days included in all
Delay Periods during any consecutive 12 months shall not exceed the aggregate of
(x) 180 days minus (y) the number of days occurring during all Interruption
Periods (as defined in Section 5(o) hereof) during such consecutive 12 months.
Each Holder agrees to cease all public disposition efforts under such
Registration Statement with respect to Registrable Securities held by such
Holder immediately upon receipt of notice of the beginning of any Delay Period.
The Company shall provide written notice to the Holders of the end of each Delay
Period. The time period for which the Company is required to maintain the
effectiveness of a Registration Statement referred to above shall be extended by
the aggregate number of days of all Delay Periods and Interruption Periods
affecting such Registration, and such period and any extension thereof is
hereinafter referred to as the "Effectiveness Period."
(e) The Company shall not enter into any agreement granting any
Other Security Holder piggyback rights to include such Other Security Holder's
securities in any registration in which the Holders have the right to include
Registrable Securities on a priority basis more favorable to such Other Security
Holder than is provided to the Holders pursuant to Section 3(b).
(f) Holders of a majority in number of the Registrable
Securities to be included in a Demand Registration pursuant to this Section 2
may, at any time prior to the effective date of the Registration Statement in
respect thereof, revoke such request by providing a written notice to the
Company to such effect; provided, however, that any such revocation shall be
counted as a demand under this section if such revocation occurs after the
Company has filed a registration statement.
(g) Preemption of Demand Registration. Notwithstanding anything
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to the contrary contained herein, after receiving a written request for a Demand
Registration, the Company may elect to effect an underwritten primary
registration in lieu of the Demand Registration if the Company's Board of
Directors believes that such primary registration would be in the best interests
of the Company. If the Company so elects to effect a primary registration, the
Company shall give prompt written notice (which shall be given not later than 20
days after the date of the Demand Notice) to all holders of the Registrable
Securities of its intention to effect such a registration and shall afford the
holders of the Registrable Securities the rights contained in Section 3 with
respect to Piggyback Registrations. In the event that the Company so elects to
effect a primary registration after receiving a request for a Demand
Registration, the
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Company shall use reasonable best efforts to have the Registration Statement
declared effective by the Commission as soon as reasonably practicable. In
addition, the request for a Demand Registration shall be deemed to have been
withdrawn and such primary registration shall not be deemed to be a Demand
Registration.
(h) Priority in Cutback. If a Demand Registration is an
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underwritten offering and includes securities for sale by the Company, and the
managing underwriter (such underwriters to be chosen by the Holders included in
such registration, subject to the Company's reasonable approval) advises the
Company, in writing, that, in its good faith judgment, the number of securities
requested to be included in such registration exceeds the number which can be
sold in such offering without materially and adversely affecting the
marketability of the offering, then the Company will include in any such
registration the maximum number of shares which the managing underwriter advises
the Company can be sold in such offering allocated as follows: first the
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Registrable Securities requested to be included in such registration by the
Holders, pro rata on the basis of the number of Registrable Securities requested
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to be included by such Holders, second the securities requested to be included
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in such registration by the Company for its own account, and third the
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securities requested to be included in such registration by the Company for the
account of Other Security Holders.
Section 3. Piggyback Registrations.
(a) Right to Piggyback. Whenever the Company proposes to
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register any of its equity securities under the Securities Act (other than a
registration on Form S-4 relating solely to a transaction described in Rule 145
of the Securities Act or a registration on Form S-8 or any successor forms
thereto), whether or not for sale for its own account, the Company will give
prompt written notice of such proposed filing to all Holders at least 30 days
before the anticipated filing date. Such notice shall offer such Holders the
opportunity to register such amount of Registrable Securities as they shall
request (a "Piggyback Registration"). Subject to Sections 3(b) and 3(c) hereof,
the Company shall include in each such Piggyback Registration all Registrable
Securities with respect to which the Company has received written requests for
inclusion therein within 28 days after such notice has been given by the Holders
to the Company. If the Registration Statement relating to the Piggyback
Registration is to cover an underwritten offering, such Registrable Securities
shall be included in the underwriting on the same terms and conditions as the
securities otherwise being sold through the underwriters. Each Holder shall be
permitted to withdraw all or part of the Registrable
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Securities from a Piggyback Registration at any time prior to the effective time
of such Piggyback Registration.
(b) Priority on Primary Registrations. If a Piggyback
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Registration is an underwritten primary registration on behalf of the Company,
by or through one or more underwriters of recognized standing and the managing
underwriters advise the Company in writing that in their good faith judgment the
number of securities requested to be included in such registration exceeds the
number which can be sold in such offering without materially and adversely
affecting the marketability of the offering, then the Company will include in
the Registration Statement relating to such registration (i) first, the
securities the Company proposes to sell, (ii) second, the Registrable Securities
requested to be included in such registration by the Holders thereof, reduced,
if necessary, on a pro rata basis, based on the amount of Registrable Securities
requested to be included therein, and (iii) third, if no Registrable Securities
were excluded pursuant to this Section 3(b), securities other than Registrable
Securities requested to be included in such registration by Other Security
Holders; provided, that if such registration contemplates an "over-allotment
option" on the part of underwriters, to the extent such over-allotment option is
exercised and Holders were excluded from registering any Registrable Securities
pursuant to the priority provisions of this Section 3(b), then the over-
allotment option shall be exercised first with respect to the Registrable
Securities and the Principal Securities on a pro rata basis to the extent of any
exclusion.
(c) Priority on Secondary Registrations. If a Piggyback
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Registration is an underwritten secondary registration on behalf of Other
Security Holders, by or through one or more underwriters of recognized standing
and the managing underwriter(s) advise the Company in writing that in their good
faith judgment the number of securities requested to be included in such
registration exceeds the number which can be sold in such offering without
materially and adversely affecting the marketability of the offering, the
Company will include in such registration, the securities owned by such Other
Security Holders and the Registrable Securities requested to be included in such
registration by the Holders thereof, reduced, in each case, on a pro rata basis,
based on the amount of Registrable Securities owned by each such other Security
Holder or Holder.
Section 4. Hold-back Agreements.
(a) The Company agrees (i) if so required by the managing
underwriter of an underwritten offering effected pursuant to a Registration
under
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Section 2 or 3 hereof, not to effect any public or private sale or distribution
of securities of the same type (including any underlying securities) as the
Registrable Securities included in such underwritten registration, or any
securities convertible into or exchangeable or exercisable for such securities,
during the seven days prior to the pricing of such offering and until the
earlier of (A) the end of the 180-day period beginning on the date of pricing of
such offering (except as part of such underwritten offering and except pursuant
to registrations on Form S-4 or Form S-8 (or any successor form to such Form)),
unless the managing underwriter for such offering otherwise agrees, and (B) the
abandonment of such offering, and (ii) to use reasonable best efforts to cause
each holder of securities of the same type as the securities included in such
underwritten offering, or any securities convertible into or exchangeable or
exercisable for such securities, in each case purchased from the Company at any
time after the date of this Agreement (other than in a registered public
offering) to agree not to effect any public or private sale or distribution or
otherwise dispose (including sales pursuant to Rule 144 under the Securities
Act) of any such securities during such period (except as part of such
underwritten registration, if otherwise permitted), unless the managing
underwriter for such offering otherwise agrees.
(b) If the Company registers securities of the Company in connection
with an underwritten public offering of Common Stock solely by the Company, the
Holders, if so requested by the managing underwriter of such underwrit ten
offering, agree not to effect any public sale or distribution of any of the
Registrable Securities, including any sale pursuant to Rule 144 under the
Securities Act (other than as a part of such underwritten public offering)
without the consent of the Company or such managing underwriter during the
period commencing on a date specified by the underwriter, such date not to
exceed seven days prior to the effective date of such registration statement,
and ending on the earlier of (A) 180 days after the pricing of such offering,
(B) the abandonment of such offering and (C) the first date on which the Company
or any affiliate or executive officer of the Company is permitted to sell shares
of Common Stock of the Company.
Section 5. Registration Procedures.
Whenever the Company is required to register Registrable Securities
pursuant to Section 2 or 3 hereof, the Company will use reasonable best efforts
to effect the registration to permit the sale of such Registrable Securities in
accordance with the intended method or methods of disposition thereof, and
pursuant thereto the Company will as expeditiously as possible:
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(a) prepare and file with the Commission a Registration Statement with
respect to such Registrable Securities as prescribed by Section 2 or 3 on a form
available for the sale of the Registrable Securities by the holders thereof in
accordance with the intended method or methods of distribution thereof and use
reasonable best efforts to cause each such Registration Statement to become and
remain effective within the time periods and otherwise as provided herein;
(b) prepare and file with the Commission such amendments, (including
post-effective amendments) to the Registration Statement and such supplements to
the Prospectus as may be necessary to keep such Registration Statement effective
and to comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such Registration Statement until such
time as all of such securities have been disposed of in accordance with the
intended methods of disposition by the seller or sellers thereof set forth in
such Registration Statement;
(c) furnish to each selling Holder of Registrable Securities covered
by a Registration Statement and to each underwriter, if any, such number of
copies of such Registration Statement, each amendment and post-effective
amendment thereto, the Prospectus included in such Registration Statement
(including each preliminary prospectus and any supplement to such Prospectus and
any other prospectus filed under Rule 424 of the Securities Act), in each case
including all exhibits, and such other documents as such Holder may reasonably
request in order to facilitate the disposition of the Registrable Securities
owned by such Holder or to be disposed of by such underwriter (the Company
hereby consenting to the use in accordance with all applicable law of each such
Registration Statement (or amendment or post-effective amendment thereto) and
each such Prospectus (or preliminary prospectus or supplement thereto) by each
such Holder and the underwriters, if any, in connection with the offering and
sale of the Registrable Securities covered by such Registration Statement or
Prospectus);
(d) use reasonable best efforts to register or qualify and, if
applicable, to cooperate with the selling Holders, the underwriters, if any, and
their respective counsel in connection with the registration or qualification
(or exemption from such registration or qualification) of, the Registrable
Securities for offer and sale under the securities or blue sky laws of such
jurisdictions as any selling Holder or managing underwriters (if any) shall
reasonably request, to keep each such registration or qualification (or
exemption therefrom) effective during the period such Registration Statement is
required to be kept effective and to do any and all other acts or things
necessary or advisable to enable the disposition in such jurisdictions of the
Securities
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covered by the applicable Registration Statement; provided, that the Company
will not be required to (i) qualify generally to do business in any jurisdiction
where it would not otherwise be required to qualify but for this paragraph or
(ii) consent to general service of process or taxation in any such jurisdiction
where it is not so subject;
(e) use reasonable best efforts to cause all such Registrable
Securities to be listed on each securities exchange on which securities of the
same class as the Registrable Securities are then listed and, if not so listed,
to be listed on the NASD automated quotation system and, if listed on the NASD
automated quotation system, use reasonable best efforts to secure designation of
all such Registrable Securities covered by such Registration Statement as a
NASDAQ Security within the meaning of Rule 11Aa3-l under the Exchange Act or,
failing that, to secure NASDAQ authorization for such Registrable Securities
and, without limiting the generality of the foregoing, to arrange for at least
two market makers to register as such with respect to such Registrable
Securities with the NASD;
(f) provide a transfer agent and registrar for all such Registrable
Securities and a CUSIP number for all such Registrable Securities not later than
the effective date of such Registration Statement;
(g) comply with all applicable rules and regulations of the
Commission, and make available to its security holders an earnings statement
satisfying the provisions of Section 11(a) of the Securities Act and Rule 158
thereunder (or any similar rule promulgated under the Securities Act) no later
than 45 days after the end of any 12-month period (or 90 days after the end of
any 12-month period if such period is a fiscal year) (or in each case within
such extended period of time as may be permitted by the Commission for filing
the applicable report with the Commission) (i) commencing at the end of any
fiscal quarter in which Registrable Securities are sold to underwriters in an
underwritten offering or (ii) if not sold to underwriters in such an offering,
commencing on the first day of the first fiscal quarter of the Company after the
effective date of a Registration Statement, which earnings statement shall cover
said 12-month periods;
(h) use reasonable best efforts to prevent the issuance of any order
suspending the effectiveness of a Registration Statement or suspending the
qualification (or exemption from qualification) of any of the Registrable
Securities included therein for sale in any jurisdiction, and, in the event of
the issuance of any stop order suspending the effectiveness of a Registration
Statement, or of any order suspending the qualification of any Registrable
Securities included in such Registration
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Statement for sale in any jurisdiction, the Company will use reasonable best
efforts promptly to obtain the withdrawal of such order at the earliest possible
moment;
(i) obtain "cold comfort" letters and updates thereof (which letters
and updates (in form, scope and substance) shall be reasonably satisfactory to
the managing underwriters, if any, and the Holders) from the independent
certified public accountants of the Company (and, if necessary, any other
independent certified public accountants of any subsidiary of the Company or of
any business acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Registration
Statement), addressed to each of the underwriters, if any, and each selling
Holder of Registrable Securities, such letters to be in customary form and
covering matters of the type customarily covered in "cold comfort" letters in
connection with underwritten offerings and such other matters as the
underwriters, if any, or the Holders of a majority of the Registrable Securities
being sold may reasonably request;
(j) obtain opinions of independent counsel to the Company and updates
thereof (which counsel and opinions (in form, scope and substance) shall be
reasonably satisfactory to the managing underwriters, if any, and the Holders of
a majority of the Registrable Securities being sold), addressed to each selling
Holder and each of the underwriters, if any, covering the matters customarily
covered in opinions of issuer's counsel requested in underwritten offerings,
such as the effectiveness of the Registration Statement and such other matters
as may be requested by such counsel and underwriters, if any;
(k) promptly notify the selling Holders and the managing underwriters,
if any, and confirm such notice in writing,
(1) when a Prospectus or any supplement or post-effective
amendment to such Prospectus has been filed, and, with respect to a
Registration Statement or any post-effective amendment thereto, when the
same has become effective,
(2) of any request by the Commission or any other Federal or
state governmental authority for amendments or supplements to a
Registration Statement or related Prospectus or for additional information,
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(3) of the issuance by the Commission of any stop
order suspending the effectiveness of a Registration Statement or
of any order preventing or suspending the use of any Prospectus
or the initiation of any proceedings by any Person for that
purpose,
(4) of the receipt by the Company of any notification
with respect to the suspension of the qualification or exemption
from qualification of a Registration Statement or any of the
Registrable Securities for offer or sale under the securities or
blue sky laws of any jurisdiction, or the contemplation,
initiation or threatening, of any proceeding for such purpose,
and
(5) of the happening of any event or the existence of
any facts that make any statement made in such Registration
Statement or Prospectus untrue in any material respect or that
require the making of any changes in such Registration Statement
or Prospectus so that it will not contain any untrue statement of
a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made (in the
case of any Prospectus), not misleading (which notice shall be
accompanied by an instruction to the selling Holders and the
managing underwriters, if any, to suspend the use of the
Prospectus until the requisite changes have been made);
(l) if requested by the managing underwriters, if any, or a Holder of
Registrable Securities being sold, promptly incorporate in a prospectus,
supplement or post-effective amendment such information as the managing
underwrit ers, if any, and the Holders of a majority of the Registrable
Securities being sold reasonably request to be included therein relating to the
sale of the Registrable Securities, including, without limitation, information
with respect to the number of shares of Registrable Securities being sold to
underwriters, the purchase price being paid therefor by such underwriters and
with respect to any other terms of the underwritten offering of the Registrable
Securities to be sold in such offering, and make all required filings of such
prospectus, supplement or post-effective amendment promptly following
notification of the matters to be incorporated in such supplement or post-
effective amendment;
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(m) furnish to each selling Holder of Registrable Securities and the
managing underwriter, without charge, at least one signed copy of the
Registration Statement;
(n) as promptly as practicable upon the occurrence of any event
contemplated by clause 5(k)(5) above, prepare a supplement or post-effective
amendment to the Registration Statement or the Prospectus, or any document
incorporated therein by reference, or file any other required document so that,
as thereafter delivered to the purchasers of the Registrable Securities being
sold hereunder, the Prospectus will not contain an untrue statement of a
material fact or an omission to state a material fact required to be stated in a
Registration Statement or Prospectus or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; and
(o) if such offering is an underwritten offering, enter into such
agreements (including an underwriting agreement in form, scope and substance as
is customary in underwritten offerings) and take all such other appropriate and
reasonable actions requested by the Holders owning a majority of the Registrable
Securities being sold in connection therewith or by the managing underwriters
(including cooperating in reasonable marketing efforts, including participation
by senior executives of the Company in any "roadshow" or similar meeting with
potential investors) in order to expedite or facilitate the disposition of such
Registrable Securities, and in such connection, provide indemnification
provisions and procedures substantially to the effect set forth in Section 7
hereof with respect to all parties to be indemnified pursuant to said Section.
The above shall be done at each closing under such underwriting or similar
agreement, or as and to the extent required thereunder.
Each Holder agrees by acquisition of such Registrable Securities that,
upon receipt of written notice from the Company of the happening of any event of
the kind described in Section 5(k), such Holder will forthwith discontinue
disposition of such Registrable Securities covered by such Registration
Statement until such Holder's receipt of the copies of the supplemented or
amended Registration Statement contemplated by Section 5(n), or until it is
advised in writing by the Company that the use of the applicable Prospectus may
be resumed, and has received copies of any additional or supplemental filings
that are incorporated or deemed to be incorporated by reference in such
prospectus (such period during which disposition is discontinued being an
"Interruption Period"), and, if so directed by the Company, such Holder will
deliver to the Company all copies of the Prospectus covering such Registrable
Securities current at the time of receipt of such notice.
14
Section 6. Registration Expenses.
The Company shall bear all expenses incurred in connection with the
registration or attempted registration of the Registrable Securities pursuant to
Sections 2 and 3 of this Agreement as provided herein. Such expenses shall
include, without limitation, all printing, legal and accounting expenses
incurred by the Company and all registration and filing fees imposed by the
Commission, any state securities commission or the New York Stock Exchange or,
if the Common Stock is not then listed on the New York Stock Exchange, the
principal national securities exchange or national market system on which the
Common Stock is then traded or quoted. Notwithstanding the foregoing sentence,
Holders shall be responsible for any pro rata share of brokerage or underwriting
commissions and taxes of any kind (including, without limitation, transfer
taxes) with respect to any disposition, sale or transfer of Registrable
Securities and for any legal, accounting and other expenses incurred by them in
connection with any Registration Statement.
Section 7. Indemnification.
(a) Indemnification by the Company. The Company agrees to
------------------------------
indemnify, to the fullest extent permitted by law, each Holder, each affiliate
of a Holder and each officer, director, employee, counsel, agent or
representative of such Holder and its affiliates and each Person who controls
any such Person (within the meaning of either Section 15 of the Securities Act
or Section 20 of the Exchange Act) against, and hold it and them harmless from,
all losses, claims, damages, liabilities, costs (including, without limitation,
costs of preparation and attorneys' fees and disbursements) and expenses,
including expenses of investigation (collectively, "Losses") arising out of,
caused by or based upon any untrue or alleged untrue statement of material fact
contained in any Registration Statement, or any omission or alleged omission of
a material fact required to be stated therein or necessary to make the
statements therein not misleading (a "Misstatement/Omission"), or any violation
or alleged violation by the Company of the Securities Act, the Exchange Act, any
state securities law, or any rule or regulation promulgated under the Securities
Act, the Exchange Act or any state securities law, except that the Company shall
not be liable insofar as such Misstatement/Omission or violation is made in
reliance upon and in conformity with information furnished in writing to the
Company by such Holder expressly for use therein; provided, further that the
Company shall not be liable for a Holder's failure to deliver or cause to be
delivered (to the extent such delivery is required under the Securities Act) the
Prospectus contained in the Registration Statement, furnished to it by the
Company at or prior to the time such action is required by the Securities Act to
the person claiming
15
a Misstatement/Omission if such Misstatement/Omission was corrected in such
Registration Statement. In connection with an underwritten offering, the Company
will indemnify such underwriters, selling brokers, dealer managers and similar
securities industry professionals participating in the distribution, their
officers and directors and each Person who controls such underwriters (within
the meaning of either 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 Holders. This indemnity shall be in addition to any other
indemnification arrangements to which the Company may otherwise be party.
(b) Indemnification by the Holders. In connection with any
------------------------------
Registration Statement in which a Holder is participating, each such Holder
agrees to indemnify, to the fullest extent permitted by law the Company and each
affiliate, employee, counsel, agent, representative, director or officer of the
Company and each Person who controls the Company (within the meaning of either
Section 15 of the Securities Act or Section 20 of the Exchange Act) against, and
hold it harmless from, any Losses arising out of or based upon (i) any
Misstatement/Omission contained in the Registration Statement, if and to the
extent that such Misstatement/Omission arose out of or was based upon
information furnished in writing by such Holder for use therein, or (ii) the
failure by the Holder to deliver or cause to be delivered (to the extent such
delivery is required under the Securities Act) the Prospectus contained in the
Registration Statement, furnished to it by the Company at or prior to the time
such action is required by the Securities Act to the person claiming a
Misstatement/Omission if such Misstatement/Omission was corrected in such
Registration Statement. Notwithstanding the foregoing, the obligation to
indemnify will be individual (several and not joint) to each Holder and will be
limited to the net amount of proceeds (net of payment of all expenses) received
by such Holder from the sale of Registrable Securities pursuant to such
Registration Statement giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. In case any action, claim
--------------------------------------
or proceeding shall be brought against any Person entitled to indemnifica tion
hereunder, such indemnified party shall promptly notify each indemnifying party
in writing, and such indemnifying party shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to such indemnified
party and payment of all fees and expenses incurred in connection with the
defense thereof. The failure to so notify such indemnifying party shall not
affect any obligation it may have to any indemnified party under this Agreement
or otherwise except to the extent that (as finally determined by a court of
competent jurisdiction (which determination is not subject to review or appeal))
such failure materially prejudiced such indemnifying party. Each
16
indemnified party shall have the right to employ separate counsel in such
action, claim or proceeding and participate in the defense thereof, but the fees
and expenses of such counsel shall be at the expense of each indemnified party
unless: (i) such indemnifying party has agreed to pay such expenses; (ii) such
indemnifying party has failed promptly to assume the defense and employ counsel
reasonably satisfactory to such indemnified party; or (iii) the named parties to
any such action, claim or proceeding (including any impleaded parties) include
both such indemnified party and such indemnifying party or an affiliate or
controlling person of such indemnifying party, and such indemnified party shall
have been advised in writing by counsel that either (x) there may be one or more
legal defenses available to it which are different from or in addition to those
available to such indemnifying party or such affiliate or controlling person or
(y) a conflict of interest may exist if such counsel represents such indemnified
party and such indemnifying party or its affiliate or controlling person;
provided, however, that such indemnifying party shall not, in connection with
any one such action or proceeding or separate but substantially similar or
related actions or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be responsible hereunder for the fees and
expenses of more than one separate firm of attorneys (in addition to any local
counsel), which counsel shall be designated by such indemnified party.
No indemnified party shall be liable for any settlement effected
without its written consent. Each indemnifying party agrees, jointly and
severally, that it will not, without the indemnified party's prior written
consent, consent to entry of any judgment or settle or compromise any pending or
threatened claim, action or proceeding in respect of which indemnification or
contribution may be sought hereunder unless the foregoing contains an
unconditional release, in form and substance reasonably satisfactory to the
indemnified parties, of the indemnified parties from all liability and
obligation arising therefrom. The indemnifying party's liability to any such
indemnified party hereunder shall not be extinguished solely because any other
indemnified party is not entitled to indemnity hereunder.
(d) Survival. The indemnification provided for under this
--------
Agreement will (i) remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or any officer,
director or controlling Person of such indemnified party, (ii) survive the
transfer of securities and (iii) survive the termination of this Agreement.
(e) Right to Contribution. If the indemnification provided for
---------------------
in this Section 7 is unavailable to, or insufficient to hold harmless, an
indemnified party
17
under Section 7(a) or Section 7(b) above in respect of any Losses referred to in
such Sections, then each applicable indemnifying party shall have an obligation
to contribute to the amount paid or payable by such indemnified party as a
result of such Losses in such proportion as is appropriate to reflect the
relative fault of the Company, on the one hand, and of the Holder, on the other,
in connection with the Misstatement/Omission which resulted in such Losses,
taking into account any other relevant equitable considerations. The amount paid
or payable by a party as a result of the Losses referred to above shall be
deemed to include, subject to the limitations set forth in Section 7(c) above,
any legal or other fees or expenses reasonably incurred by such party in
connection with any investigation, lawsuit or legal or administrative action or
proceeding.
The relative fault of the Company, on the one hand, and of the Holder,
on the other, shall be determined by reference to, among other things, whether
the relevant Misstatement/Omission relates to information supplied by the
Company or by the Holder and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such Misstatement/Omission.
The Company and each Holder agree that it would not be just and
equitable if contribution pursuant to this Section 7(e) were determined by pro
rata allocation or by any other method of allocation which does not take account
of the equitable considerations referred to above. Notwithstanding the
provisions of this Section 7(e), a Holder shall not be required to contribute
any amount in excess of the amount by which (i) the amount (net of payment of
all expenses) at which the securities that were sold by such Holder and
distributed to the public were offered to the public exceeds (ii) the amount of
any damages which such Holder has otherwise been required to pay by reason of
such Misstatement/Omission.
No Person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
Section 8. Rules 144 and 144A.
The Company shall timely file the reports required to be filed by it
under the Securities Act and the Exchange Act (including but not limited to the
reports under sections 13 and 15(d) of the Exchange Act referred to in
subparagraph (c) of Rule 144 adopted by the Commission under the Securities Act)
and the rules and regulations adopted by the Commission thereunder (or, if the
Company is not required to file such
18
reports, it will, upon the request of any holder of Registrable Securities, make
publicly available other information) and will take such further action as any
holder of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by (a) Rule 144 and Rule 144A under the Securities Act, as
such Rules may be amended from time to time, or (b) any similar rule or
regulation hereafter adopted by the Commission.
Section 9. Underwritten Registrations.
In the case of any underwritten offering pursuant to a Demand
Registration under Section 2, the managing or lead underwriter or underwriters
thereof shall be selected by the Holders included in such registration, subject
to the Company's reasonable approval. No Person may participate in any
registration hereunder which is underwritten unless such Person (i) agrees to
sell such Person's securities on the basis provided in any underwriting
arrangements approved by the Person or Persons entitled hereunder to approve
such arrangements and (ii) completes and executes all questionnaires, powers of
attorney, customary indemnities, underwriting agreements and other documents
required under the terms of such underwriting arrangements; provided, that no
Holder included in any underwritten registration shall be required to make any
representations or warranties to the Company or the underwriters other than
representations and warranties regarding such Holder and such Holder's intended
method of distribution.
Section 10. Covenants of Holders.
Each of the Holders hereby agrees (a) to cooperate with the Company
and to furnish to the Company all such information in connection with the
preparation of the Registration Statement and any filings with any state
securities commissions as the Company may reasonably request, (b) to the extent
required by the Securities Act, to deliver or cause delivery of the prospectus
contained in the Registration Statement, any amendment or supplement thereto, to
any purchaser of the Registrable Securities covered by the Registration
Statement from the Holder and (c) to notify the Company within three months
after any sale of Registrable Securities by such Holder or, in the case of a
sale of all or substantially all of the Registrable Securities owned by a
Holder, within ten days after such sale.
19
Section 11. Miscellaneous.
(a) No Inconsistent Agreements. The Company will not hereafter
--------------------------
enter into any agreement with respect to its securities which is inconsistent
with, adversely effects or violates the rights granted to the Holders in this
Agreement.
(b) Remedies. Any Person having rights under any provision of
--------
this Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights provided in the Conversion Agreement or granted by
law. The parties hereto agree and acknowledge that money damages may not be an
adequate remedy for any breach of the provisions of this Agreement and hereby
agree to waive the defense in any action for specific performance or injunctive
relief that a remedy at law would be adequate. Accordingly, any party may in its
sole discretion apply to any court of law or equity of competent jurisdiction
(without posting any bond or other security) for specific performance and for
other injunctive relief in order to enforce or prevent violation of the
provisions of this Agreement.
(c) Amendments and Waivers. Except as otherwise provided herein,
----------------------
the provisions of this Agreement, including the provisions of this sentence, may
be amended, modified, supplemented or waived only upon the prior written consent
of the Company and Holders of a majority of the outstanding Registrable
Securities.
(d) Successors and Assigns. This Agreement shall be binding upon
----------------------
and inure to the benefit of the successors and assigns of the Company. This
Agreement may only be assigned by any Holder to any other Holder, unless
otherwise consented to by the Company (such consent not to be unreasonably
withheld) and any other attempted assignment hereof by any Holder will be void
and of no effect and shall terminate all obligations of the Company hereunder
with respect to such Holder. None of the rights of any Investor or Holder may be
assigned other than to a Holder who agrees in writing to be bound by this
Agreement. The Company shall be given written notice by the transferring
Investor or Holder at the time of the transfer stating the name and address of
the transferee and identifying the Registrable Securities transferred, provided,
--------
that failure to give such notice shall not affect the validity of such transfer
----
or assignment.
(e) Severability. In the event that any one or more of the
------------
provisions contained herein, or the application thereof in any circumstances, is
held invalid, illegal or unenforceable in any respect for any reason, the
validity, legality and
20
enforceability of any such provision in every other respect and of the remaining
provisions hereof shall not be in any way impaired or affected, it being
intended that the rights and privileges of the parties hereto shall be
enforceable to the fullest extent permitted by law.
(f) Counterparts. This Agreement may be executed in any number
------------
of counterparts, any one of which need not contain the signatures of more than
one party, but each of which when so executed shall be deemed to be an original
and all such counterparts taken together shall constitute one and the same
Agreement.
(g) Descriptive Headings: Interpretation. The descriptive
------------------------------------
headings of this Agreement are inserted for convenience of reference only and
shall not limit or otherwise affect the meaning hereof. The use of the word
"including" in this Agreement shall be by way of example rather than by
limitation.
(h) Notices. All notices, demands or other communications to be
-------
given or delivered under or by reason of the provisions of this Agreement shall
be in writing and shall be deemed to have been given when delivered personally
to the recipient, sent to the recipient by reputable air courier guaranteeing
overnight delivery (charges prepaid), mailed to the recipient by certified or
registered mail, return receipt requested and postage prepaid or sent by
telecopier. Such notices, demands and other communications shall be sent to each
Investor at the address indicated below such Investor's name on the signature
pages to the Purchase Agreement and to the Company at the address indicated
below:
Plum Creek Timber Company, Inc.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
(000) 000-0000 (fax)
Attention: President and Chief Executive Officer
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
(000) 000-0000 (fax)
Attention: Xxxxxxxx X. Xxxxxxxxx, Esq.
21
or to such other address or to the attention of such other person as the
recipient party has specified by prior written notice to the sending party. Any
notice, demand or other communication given hereunder will be deemed to have
been given as of the date so delivered; as of the first business day after being
delivered to an overnight air courier guaranteeing overnight delivery; on the
fifth business day after being mailed; or when transmission completed, if
telecopied; as the case may be.
(i) GOVERNING LAW; SUBMISSION TO JURISDICTION. THIS AGREEMENT
-----------------------------------------
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE
STATE OF NEW YORK. THE COMPANY HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE
JURISDICTION OF ANY WASHINGTON STATE COURT SITTING IN THE CITY OF SEATTLE OR ANY
FEDERAL COURT SITTING IN THE CITY OF SEATTLE IN RESPECT OF ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT AND THE REGISTRABLE
SECURITIES, AND IRREVOCABLY ACCEPTS FOR ITSELF AND IN RESPECT OF ITS PROPERTY,
GENERALLY AND UNCONDITIONALLY, JURISDICTION OF THE AFORESAID COURTS. EACH PARTY
AGREES THAT IT WILL NOT COMMENCE ANY SUCH SUIT, ACTION OR PROCEEDING IN ANY
OTHER JURISDICTION. EACH PARTY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT IT MAY
EFFECTIVELY DO SO UNDER APPLICABLE LAW, ANY OBJECTION WHICH IT MAY NOW OR
HEREAFTER HAVE TO THE LAYING OF THE VENUE OF ANY SUCH SUIT, ACTION OR PROCEEDING
BROUGHT IN ANY SUCH COURT AND ANY CLAIM THAT ANY SUCH SUIT, ACTION OR PROCEEDING
HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(j) Entire Agreement. This Agreement is intended by the parties
----------------
as a final expression of their agreement and intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein. This Agreement supersedes all
prior agreements and understandings between the parties with respect to such
subject matter.
(k) Attorneys' Fees. In any action or proceeding brought to
---------------
enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the prevailing party, as determined by the court,
shall be entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
22
IN WITNESS WHEREOF the parties hereto have or have caused this
Registration Rights Agreement to be duly executed as of the date first above
written.
THE COMPANY:
PLUM CREEK TIMBER COMPANY, INC.
By: _______________________________________________
Name:
Title:
THE INVESTORS:
PC ADVISORY PARTNERS I, L.P.
By: _______________________________________________
Name:
Title:
Address for notices:
-------------------
c/o SPO Partners Co.
000 Xxxxxxx Xxxxxxx
Xxxxx 0000
Xxxx Xxxxxx, Xxxxxxxxxx 00000
(000) 000-0000 (fax)
Attention: President and Chief Executive Officer
With a copy (which shall not constitute notice) to:
---------------------------------------------------
Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxx Xxxx Xxxx
00/xx/ Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
(000) 000-0000 (fax)
Attention: Xxxxxx Xxxxxxx, Esq.
PCMC INTERMEDIATE HOLDINGS, L.P.
By: _______________________________________________
Name:
Title:
Address for Notices:
-------------------
c/o SPO Partners Co.
000 Xxxxxxx Xxxxxxx
Xxxxx 0000
Xxxx Xxxxxx, Xxxxxxxxxx 00000
(000) 000-0000 (fax)
Attention: President and Chief Executive Officer
With a copy (which shall not constitute notice) to:
---------------------------------------------------
Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxx Xxxx Xxxx
00/xx/ Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
(000) 000-0000 (fax)
Attention: Xxxxxx Xxxxxxx, Esq.
Registration Rights Agreement
Holder Signature Page
HOLDER
___________________________________________________
Name:
Address for Notice:
___________________________________________________
___________________________________________________
___________________________________________________
___________________________________________________
