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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
--------------------
SCHEDULE TO
(Amendment No. 4)
TENDER OFFER STATEMENT UNDER SECTION 14(d)(1) OR 13(e)(1)
OF THE SECURITIES EXCHANGE ACT OF 1934
WILLAMETTE INDUSTRIES, INC.
(Name of Subject Company (Issuer))
COMPANY HOLDINGS, INC.
WEYERHAEUSER COMPANY
(Names of Filing Persons -- Offerors)
COMMON STOCK, PAR VALUE $0.50 PER SHARE
(Title of Class of Securities)
969133107
(CUSIP Number of Class of Securities)
Robert A. Dowdy, Esq.
Weyerhaeuser Company
Federal Way, Washington 98063
Telephone: (253) 924-2345
(Name, Address and Telephone Number of Person Authorized to Receive
Notices and Communications on Behalf of Filing Persons)
Copy to:
Richard Hall, Esq.
Cravath, Swaine & Moore
825 Eighth Avenue
New York, New York 10019
Telephone: (212) 474-1000
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<PAGE>
SCHEDULE TO
This Statement amends and supplements the Tender
Offer Statement on Schedule TO filed with the Securities and
Exchange Commission on November 29, 2000 (as previously
amended, the "Schedule TO"), relating to the offer by Company
Holdings, Inc., a Washington corporation (the "Purchaser")
and a wholly owned subsidiary of Weyerhaeuser Company, a
Washington corporation ("Parent"), to purchase (1) all
outstanding shares ("Shares") of common stock, par value
$0.50 per share, of Willamette Industries, Inc., an Oregon
corporation (the "Company"), and (2) unless and until validly
redeemed by the Board of Directors of the Company, the
related rights to purchase shares of Series B Junior
Participating Preferred Stock, $0.50 par value per share, of
the Company (the "Rights") issued pursuant to the Rights
Agreement, dated as of February 25, 2000 by and between the
Company and ChaseMellon Shareholder Services L.L.C., as
Rights Agent, at a price of $48.00 per Share, net to the
seller in cash, without interest, upon the terms and subject
to the conditions set forth in the Offer to Purchase (the
"Offer to Purchase"), dated November 29, 2000, and in the
related Letter of Transmittal (which, together with any
supplements or amendments, collectively constitute the
"Offer"). Unless the context otherwise requires, all
references to the Shares shall be deemed to include the
associated Rights, and all references to the Rights shall be
deemed to include the benefits that may inure to holders of
Rights pursuant to the Rights Agreement.
Capitalized terms used herein and not defined
herein have the respective meanings assigned such terms in
the Offer to Purchase and the Schedule TO.
Item 11. Additional Information.
On December 12, 2000, Parent and the Purchaser
commenced litigation in the circuit court for the county of
Multnomah, Oregon to compel the Company to make available for
inspection and copying by Parent and the Purchaser various
shareholder list materials available to the Company to
communicate with its shareholders. On November 29, 2000,
Parent and the Purchaser demanded that the Company provide
for inspection and copying various books and records and
shareholder list materials pursuant to Sections 60.774(1) and
60.774(2) of the OBCA. On December 7, 2000, the Company
provided certain of the materials demanded by Parent and the
Purchaser. On December 8, 2000, Parent and the Purchaser
delivered a letter to the Company demanding specified
shareholder list materials omitted by the Company in its
December 7, 2000 delivery. On December 11, 2000, the Company
communicated that it would
- 1 -
<PAGE>
not produce the omitted shareholder list materials. A copy of
the Petition for Alternative Writ of Mandamus filed by Parent
and the Purchaser is filed as Exhibit (a)(5)(C) hereto and is
incorporated herein by reference.
Item 12. Exhibits.
(a)(5)(C) Petition for Alternative Writ of Mandamus in State
ex rel. Weyerhaeuser Company and Company Holdings,
Inc. v. Willamette Industries, Inc., Multnomah
County (Oregon) Circuit Court Case No. 0012-12698.
- 2 -
<PAGE>
SIGNATURES
After due inquiry and to the best of their knowledge and
belief, the undersigned hereby certify that the information set forth in this
statement is true, complete and correct.
COMPANY HOLDINGS, INC.,
by /s/ STEVEN R. ROGEL
----------------------------
Name: Steven R. Rogel
Title: President
WEYERHAEUSER COMPANY,
by /s/ STEVEN R. ROGEL
----------------------------
Name: Steven R. Rogel
Title: President and Chief
Executive Officer
Dated: December 13, 2000
- 3 -
<PAGE>
EXHIBIT INDEX
Exhibit No. Description
(a)(5)(C) Petition for Alternative Writ of Mandamus in
State ex rel. Weyerhaeuser Company and
Company Holdings, Inc. v. Willamette
Industries, Inc., Multnomah County (Oregon)
Circuit Court Case No. 0012-12698.
<PAGE>
Exhibit (a)(5)(C)
IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF MULTNOMAH
-----------------------------------
State ex rel. WEYERHAEUSER COMPANY
and its wholly owned subsidiary
COMPANY HOLDINGS, INC., Case No. 0012-12698
Relators, PETITION FOR
ALTERNATIVE WRIT OF
v. MANDAMUS
WILLAMETTE INDUSTRIES, INC.,
Defendant.
-----------------------------------
On the relation of Weyerhaeuser Company
("Weyerhaeuser") and its wholly owned subsidiary, Company
Holdings, Inc. ("CHI"), who are the parties beneficially
interested, the State of Oregon alleges:
1.
This is a mandamus action brought by two
shareholders to compel the defendant, an Oregon corporation,
to produce in appropriate form its "record of shareholders"
pursuant to ORS 60.774(2)(c), ORS 60.781, and Oregon common
law. This Court has jurisdiction over this mandamus
proceeding pursuant to ORS 34.120, and it is "well settled
that mandamus is the appropriate remedy to compel
corporations to produce and allow an inspection of their
books and records at the suit of a stockholder...." Ralston
v. Grande Ronde Hospital, 149 Or. 45, 47, 39 P.2d 362, 363
(1934). See also Bernert v. Multnomah Lbr. & Box Co., 119 Or.
44, 247 P. 155, 248 P. 156 (1926). Pursuant to ORS 60.781(5),
a "shareholder's request shall be set for hearing at the
earliest possible time and shall take precedence over all
matters, except matters of the same character and hearing on
preliminary injunctions under ORCP 79(B)(3)." Venue is proper
under ORS 14.080.
2.
Relators Weyerhaeuser and its wholly owned
subsidiary CHI are Washington corporations located in Federal
Way, Washington.
<PAGE>
3.
Willamette Industries, Inc. ("Willamette") is
an Oregon corporation with its principal place of business in
Portland, Oregon.
4.
Following a number of private attempts to
negotiate a business combination with Willamette, on November
29, 2000, relators commenced a tender offer to acquire all
the outstanding common stock of Willamette. Also on that day,
relators, pursuant to ORS 60.774(2), served upon Willamette a
written demand for inspection of certain items used by
Willamette to facilitate communication with its shareholders.
Relators sought these items in good faith for the proper
purpose of communicating with relators' fellow Willamette
shareholders on matters relating to their mutual interests as
shareholders, including, but not limited to, communicating
with the shareholders regarding the proposed business
combination between Weyerhaeuser and Willamette and the
responses of Willamette's Board of Directors to
Weyerhaeuser's current business combination proposal. (A copy
of relators' November 29 demand is attached to this Petition
as Exhibit 1.) See generally Rosentool v. Bonanza Oil and
Mine Corp., 221 Or. 520, 529, 352 P.2d 138 (quoting with
approval cases from other jurisdictions for the proposition
that "[a] stockholder has the right as against the
corporation and other stockholders to gain control of the
corporation by lawful means such as by stock purchases and
stock control. * * * Mandamus will be granted to compel an
inspection to enable a stockholder to communicate with other
stockholders for those purposes.") (citation omitted)
(ellipsis in original); see also Bernert, 119 Or. at 50-54
(discussing generally Oregon law regarding a shareholder's
"good faith" and "proper purpose").
5.
On December 7, 2000, Willamette provided
certain corporate records pursuant to relators' November 29
demand, but did not provide the items requested in paragraphs
(b) through (i) of the November 29 demand. Among the
requested items that were not provided were: (1) a magnetic
computer tape list of the holders of shares of Common Stock;
(2) so-called "CEDE" lists, identifying the brokerage firms
who bought Willamette shares for their customers and others
who have placed those shares in the custody of depository
firms such as The Depository Trust Co.; these shares are
reflected in Willamette's records only under the names of
nominees used by such depository firms; The Depository Trust
Co. uses "CEDE & Co." as its nominee for shares it holds as
depository, and such lists, regardless of the nominee names
adopted by other depository firms, are known as "CEDE lists"
(78% of Willamette's shares
<PAGE>
are held in the name of The Depository Trust Co.; thus, if
relators are denied access to this list, they will be
severely limited in their ability to communicate with 78% of
Willamette's shareholders); (3) so-called "NOBO" lists,
identifying the non-objecting beneficial owners of Willamette
shares (individuals owning shares through registered
broker-dealers who consent to being identified as the actual
owner of their shares); and (4) daily transfer sheets showing
changes in the records and lists of holders of shares of
Common Stock.
6.
On December 8, 2000, relators sent a letter to
Willamette repeating their demand for the items not provided
by Willamette and requesting a response by the close of
business that day. Willamette then requested and received
from relators an extension of time until December 11, 2000,
to respond to relators' demands. On December 11, 2000,
Willamette stated in a letter to relators that Willamette
would not comply with the demands that are the subject of
this action.
7.
The Oregon statute, as well as Oregon common
law, provide that relators are entitled to inspect the
"record of shareholders." ORS 60.774(2)(c). This right to
access shareholder information is necessary to put
shareholders on an equal footing with management in
communicating with other shareholders. Similar statutes from
other jurisdictions, including New York and Delaware, have
also been found to have this objective. See, e.g., Bohrer v.
International Banknote Co., 540 N.Y.S.2d 445, 446 (App. Div.
1989) (requiring a corporation to make available to a
requesting shareholder the corporation's magnetic computer
tape listing of shareholder names, addresses, and numbers of
shares, its "CEDE" lists, and its "NOBO" lists, and holding
that the New York statute "seeks, to the extent possible, to
place shareholders on an equal footing with management in
obtaining access to shareholders"); Sadler v. NCR Corp., 928
F.2d 48 (2d Cir. 1991) (same, with thorough discussion
explaining the use of "CEDE" and "NOBO" lists); Hatleigh
Corp. v. Lane Bryant, Inc., 428 A.2d 350, 354-55 (Del. Ch.
1981) ("Once having established a proper purpose, a
stockholder is entitled to the same lists and data relating
to stockholders as is available to the corporation.... To
hold otherwise would be to give the corporation an unfair
advantage in a proxy solicitation battle. The best interest
of the stockholders requires that they quickly receive all
the information generated by the competing interests.")
(citations omitted). The items sought are available to
Willamette and would reasonably be used by Willamette for the
purpose of communicating with its
<PAGE>
shareholders. Failure to provide such information will
materially prejudice relators' ability to communicate
effectively with their fellow shareholders.
8.
Relators have no plain, speedy, or adequate
remedy in the ordinary course of the law.
9.
In addition to a writ mandating that
Willamette make available the items described in paragraphs
(b) through (i) of Exhibit 1 for inspection by relators and
their agents, relators are entitled to an award of their
costs and reasonable attorney fees, pursuant to ORS
60.781(3), incurred in seeking this writ.
10.
WHEREFORE, relators petition the Court to
issue the writ directed to defendant and commanding it as
follows:
(a) Immediately on receipt of the writ to make
available for inspection and copying by relators and their
agents the items described in paragraphs (b) through (i) of
Exhibit 1; or, in the alternative,
(b) To appear before this Court or a judge
hereof, at a time and place specified by the Court, to show
cause why it has not done as commanded; and further,
(c) To return the writ then and there, with
its certificate annexed showing that it has made available
for inspection and copying by relators and their agents the
items described in paragraphs (b) through (i) of Exhibit 1 or
showing the cause of its omission to do so; and
<PAGE>
(d) To pay relators' costs and reasonable
attorney fees.
DATED this 12th day of December, 2000.
PERKINS COIE LLP
By: /s/ Michael H. Simon
----------------------------
Michael H. Simon, OSB 86090
Anne L. Nichol, OSB 99158
Telephone: (503) 727-2000
Facsimile: (503) 727-2222
Rory O. Millson
Elizabeth Grayer
CRAVATH, SWAINE & MOORE
825 Eighth Avenue
New York, NY 10019
Telephone: (212) 474-1000
Facsimile: (212) 474-3700
Attorneys for Relators Weyerhaeuser
Company and Company Holdings, Inc.
<PAGE>
EXHIBIT 1
WEYERHAEUSER COMPANY
COMPANY HOLDINGS, INC.
33663 Weyerhaeuser Way South
Federal Way, Washington 98003
BY HAND DELIVERY November 29, 2000
Willamette Industries, Inc.
1300 Southwest Fifth Avenue
Portland, Oregon 97201
Attention: G.W. Hawley
Corporate Secretary
Re: Demand for Inspection of Shareholder
List and Books and Records Pursuant to
Section 60.774(2) of the Oregon Business
Corporation Act
Dear Sir:
Weyerhaeuser Company ("Weyerhaeuser"), a Washington
corporation, is the beneficial owner of 1,000 shares of
Common Stock, par value $0.50 per share (the "Common Stock"),
of the Company, an Oregon corporation (the "Company"),
including 500 shares of Common Stock held by Weyerhaeuser and
500 shares of Common Stock held by Company Holdings, Inc., a
Washington corporation and a wholly owned subsidiary of
Weyerhaeuser ("CHI" and, together with Weyerhaeuser, the
"Requesting Shareholders"). CHI is the owner of 500 shares of
Common Stock. Attached hereto as Exhibit A is evidence of
such ownership. As common shareholders of the Company, the
Requesting Shareholders hereby demand, pursuant to Section
60.774(2) of the Oregon Business Corporation Act (the "OBCA")
and the common law of the State of Oregon, the right to
inspect on Thursday, December 7, 2000 the following records
and documents of the Company and to make copies and extracts
therefrom during regular business hours at a reasonable
location specified by the Company:
(a) A complete record or list of holders of
<PAGE>
shares of Common Stock and the associated rights to
purchase shares of Series B Junior Participating
Preferred Stock of the Company (the "Rights")
issued pursuant to the Rights Agreement, dated as
of February 25, 2000, between the Company and
ChaseMellon Shareholder Services, L.L.C., as Rights
Agent, if any. Such data should be certified by the
Company or its transfer agent, showing the name,
account number and address of each shareholder and
the number of shares of Common Stock and Rights
registered in the name of such holder, as of the
most recent date available;
(b) A magnetic computer tape list of the holders of
shares of Common Stock or Rights as of the most
recent date available, showing the name, account
number, address and number of shares of Common
Stock and Rights registered in the name of each
such holder as of the most recent date available
and such computer processing data as is necessary
to make use of such magnetic computer tape, and a
printout of such magnetic computer tape for
verification purposes;
(c) All daily transfer sheets showing changes in the
records and lists of holders of shares of Common
Stock or Rights referred to above that are in or
come into the possession or control of the Company
or its transfer agent or other agents, or that can
reasonably be obtained from brokers, dealers,
banks, clearing agencies or voting trustees or
their nominees, from the date of the shareholder
lists referred to in paragraphs (a) and (b) above
to the date for the Company's 2001 Annual Meeting
of shareholders (the "2001 Annual Meeting") or, if
later, any special meeting of the Company's
shareholders (a "Special Meeting") at which action
is proposed to be taken that may bear in any way
upon the proposed business combination between
Weyerhaeuser and the Company, including, without
limitation, any action with respect to Sections
60.801 to 60.816 of the OBCA;
(d) All information in or that comes into the Company's
possession or control, or that can reasonably be
obtained from brokers, dealers, banks, clearing
agencies or voting trustees
<PAGE>
or their nominees, concerning the names, addresses
and number of shares of Common Stock or Rights held
by the participating brokers and banks named in the
individual nominee name of Cede & Co. or other
similar nominees, including omnibus proxies and all
"Security Position Listing" reports issued by The
Depository Trust Company; and a list or lists
containing the name, address and number of shares
of Common Stock attributable to any participant in
any Company employee stock ownership or comparable
plan, including the Willamette Industries Stock
Purchase Plan, the name of the trustee and
methodology for voting said plans and the method by
which the Requesting Shareholders may communicate
with such participants;
(e) All information in or that comes into the Company's
possession or control, or that can reasonably be
obtained from brokers, dealers, banks, clearing
agencies or voting trustees or their nominees
relating to the names of the non-objecting
beneficial owners ("NOBOs") and consenting
beneficial owners of shares of Common Stock or
Rights in the format of a printout in descending
order balance, magnetic computer tape and such
computer processing data as is necessary to make
use of such magnetic computer tape, and a printout
of such magnetic computer tape for verification
purposes (such information is readily available to
the Company under Rule 14b-1(b) under the
Securities Exchange Act of 1934 from the
Independent Election Corporation of America or ADP
Proxy Services);
(f) All "stop" lists or "stop transfer" lists relating
to the shares of Common Stock or Rights and any
changes, corrections, additions or deletions from
such lists, from the date of the shareholder lists
referred to in paragraphs (a) and (b) above to the
date of the 2001 Annual Meeting or, if later, any
Special Meeting;
(g) A list as of the date of the list referred to in
paragraph (a) above of all holders of shares of
Common Stock owning 1,000 or more shares of Common
Stock and all holders of Rights owning 1,000 or
more Rights, arranged in descending order;
(h) All respondent bank lists and omnibus proxies for
such lists (such information is readily
<PAGE>
available to the Company under Rule 14b-2 of the
Securities Exchange Act of 1934);
(i) A list of all holders of options to purchase shares
of Common Stock, the date on which any such option
was granted, the date on which any such option
becomes exercisable and the exercise price of any
such option as of the most recent date available;
(j) The information and records specified in paragraphs
(a) through (i) above as of any record date for
shareholder action set by the Board of Directors of
the Company (the "Board of Directors"), by
operation of law or otherwise; and
(k) To the extent such items relate to Weyerhaeuser's
August 11, 1998, August 28, 2000 or November 6,
2000 proposals to combine Weyerhaeuser and the
Company, the minutes of any meeting of the Board of
Directors and records of any action of a committee
of the Board of Directors while acting in place of
the Board of Directors on behalf of the Company,
minutes of any meeting of the shareholders of the
Company and records of action taken by the
shareholders of the Company or the Board of
Directors without a meeting, to the extent not
subject to inspection pursuant to Section 60.744(1)
of the OBCA or otherwise provided to the Requesting
Shareholders.
The Requesting Shareholders further demand that
modifications, additions or deletions to any and all
information referred to in paragraphs (a) through (i) and (k)
above as of the date of the list referred to in paragraph (a)
above be immediately furnished to the Requesting Shareholders
as such modifications, additions or deletions become
available to the Company or its agents or representatives
through the date of the 2001 Annual Meeting or, if later, any
Special Meeting and that the information and records
specified in paragraph (d) above be furnished on a daily
basis until the date of the 2001 Annual Meeting or, if later,
any Special Meeting.
The purposes of this demand are to enable the
Requesting Shareholders (1) to communicate with their fellow
Company shareholders on matters relating to their mutual
<PAGE>
interests as shareholders, including but not limited to
communicating with the shareholders of the Company regarding
the proposed business combination between Weyerhaeuser and
the Company and the Board of Directors' responses to
Weyerhaeuser's current and prior business combination
proposals, and (2) to analyze the benefits to the Company and
its shareholders of the proposed business combination between
Weyerhaeuser and the Company.
The Requesting Shareholders hereby designate and
authorize Cravath, Swaine & Moore, Perkins Coie LLP,
Innisfree M & A Incorporated, their respective partners and
employees and any other persons to be designated by them,
acting together, singly or in combination, to conduct as
their agents, the inspection and copying herein requested.
Please advise Andrew J. Pitts of Cravath, Swaine &
Moore, Worldwide Plaza, 825 Eighth Avenue, New York, New York
10019 (telephone: (212) 474-1000; fax: (212) 474-3700) when
and where the items demanded above will be made available.
Very truly yours,
WEYERHAEUSER COMPANY
By: /s/ STEVEN R. ROGEL
--------------------
Name: STEVEN R. ROGEL
------------------
Title: PRESIDENT & CEO
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COMPANY HOLDINGS, INC.
By: /s/ ROBERT A. DOWDY
--------------------
Name: ROBERT A. DOWDY
------------------
Title: VICE PRESIDENT
-----------------
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN that Weyerhaeuser Company
("Weyerhaeuser") does hereby make, constitute and appoint
Cravath, Swaine & Moore and its partners, employees, agents
and other persons designated by Cravath, Swaine & Moore;
Perkins Coie LLP, its partners, employees, agents and other
persons designated by Perkins Coie LLP; and Innisfree M & A
Incorporated, its directors, officers, employees, agents and
other persons designated by Innisfree M & A Incorporated, its
true and lawful attorneys-in-fact and agents for it in its
name, place and stead, giving and granting unto said
attorneys and agents full power and authority to act on its
behalf, as a Shareholder of Willamette Industries, Inc. (the
"Company"), to seek the production, and to engage in the
inspection and copying, of records and documents of every
kind and description, including, without limitation,
stocklist materials, the articles of incorporation and
amendments thereto, minutes, bylaws and amendments thereto
and any other business records relating to the Company.
Weyerhaeuser reserves all rights on its part to do
any act that said attorneys hereby are authorized to do or
perform. This Power of Attorney may be terminated by
Weyerhaeuser or said attorneys by written notice to the
other.
WEYERHAEUSER COMPANY
By: /s/ STEVEN R. ROGEL
--------------------
Name: STEVEN R. ROGEL
------------------
Title: PRESIDENT & CEO
-----------------
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN that Company Holdings, Inc. ("CHI")
does hereby make, constitute and appoint Cravath, Swaine &
Moore and its partners, employees, agents and other persons
designated by Cravath, Swaine & Moore; Perkins Coie LLP, its
partners, employees, agents and other persons designated by
Perkins Coie LLP; and Innisfree M & A Incorporated, its
directors, officers, employees, agents and other persons
designated by Innisfree M & A Incorporated, its true and
lawful attorneys-in-fact and agents for it in its name, place
and stead, giving and granting unto said attorneys and agents
full power and authority to act on its behalf, as a
Shareholder of Willamette Industries, Inc. (the "Company"),
to seek the production, and to engage in the inspection and
copying, of records and documents of every kind and
description, including, without limitation, stocklist
materials, the articles of incorporation and amendments
thereto, minutes, bylaws and amendments thereto and any other
business records relating to the Company.
CHI reserves all rights on its part to do any act
that said attorneys hereby are authorized to do or perform.
This Power of Attorney may be terminated by CHI or said
attorneys by written notice to the other.
COMPANY HOLDINGS, INC.
By: /s/ ROBERT A. DOWDY
--------------------
Name: ROBERT A. DOWDY
------------------
Title: VICE PRESIDENT
-----------------
<PAGE>
Exhibit A
[Account Statements Evidencing Weyerhaeuser Company and
Company Holdings, Inc.'s Ownership of Willamette Shares]
<PAGE>
CERTIFICATE OF SERVICE
I hereby certify that on the date set forth below I
caused to be served, by the method or methods set forth
below, true and correct copies of the foregoing PETITION FOR
ALTERNATIVE WRIT OF MANDAMUS on:
(BY FAX AND BY HAND DELIVERY)
John F. Neupert
Miller Nash LLP
Suite 3500
111 S.W. Fifth Avenue
Portland, OR 97204-3699
(BY FAX TO: 212-455-2502)
James G. Gamble
Gary L. Sellers
Mario A. Ponce
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017-3954
DATED this 12th day of December, 2000.
PERKINS COIE LLP
By: /s/ Michael H. Simon
----------------------------
Michael H. Simon, OSB 86090
Anne L. Nichol, OSB 99158
Telephone: (503) 727-2000
Facsimile: (503) 727-2222
