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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------
WILLAMETTE INDUSTRIES, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN CHARTER)
OREGON 93-0312940
(STATE OR OTHER JURISDICTION OF (IRS EMPLOYER IDENTIFICATION NO.)
INCORPORATION OR ORGANIZATION)
1300 S.W. FIFTH AVENUE, SUITE 3800
PORTLAND, OREGON 97201
TELEPHONE (503) 227-5581
(ADDRESS AND TELEPHONE NUMBER OF PRINCIPAL EXECUTIVE OFFICES)
J.A. PARSONS
EXECUTIVE VICE PRESIDENT
WILLAMETTE INDUSTRIES, INC.
1300 S.W. FIFTH AVENUE, SUITE 3800
PORTLAND, OREGON 97201
TELEPHONE (503) 227-5581
(NAME, ADDRESS, AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
---------------
Copies to:
MILLER, NASH, WIENER, HAGER & CARLSEN LLP SULLIVAN & CROMWELL
111 S.W. FIFTH AVENUE 444 SOUTH FLOWER STREET, 12TH FLOOR
PORTLAND, OREGON 97204-3699 LOS ANGELES, CALIFORNIA 90071
ATTN: KENNETH W. HERGENHAN ATTN: ALISON S. RESSLER
(503) 224-5858 (213) 955-8000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: FROM TIME
TO TIME AFTER THE EFFECTIVE DATE OF THIS REGISTRATION STATEMENT AS DETERMINED
IN LIGHT OF MARKET CONDITIONS AND OTHER FACTORS.
---------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
------------
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
------------
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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CALCULATION OF REGISTRATION FEE
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<TABLE>
<CAPTION>
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PROPOSED
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AMOUNT MAXIMUM AGGREGATE AMOUNT OF
SECURITIES TO BE TO BE OFFERING PRICE OFFERING REGISTRATION
REGISTERED REGISTERED(1) PER UNIT(2) PRICE(2) FEE
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Senior Debt Securities. $200,000,000 100% $200,000,000 $68,966
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</TABLE>
Note: $200,000,000 of Senior Debt Securities is being carried forward from an
earlier registration statement of the registrant on Form S-3 (No. 33-
53263). The filing fee associated with such earlier registration statement
was $68,966.
(1) Or an equivalent amount in another currency or currencies or, if any
Senior Debt Securities are issued at a discount, such greater amount as
shall result in net proceeds of $200,000,000 to the registrant.
(2) Estimated solely for purposes of calculating the registration fee.
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
registration statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until this registration
statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
Pursuant to Rule 429, the prospectus for the Senior Debt Securities covered
hereby is a combined prospectus which also relates to $200,000,000 of Senior
Debt Securities registered on an earlier registration statement of the
registrant on Form S-3 (No. 33-53263) effective May 3, 1994.
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<PAGE>
PROSPECTUS
[LOGO OF WILLAMETTE INDUSTRIES, INC. APPEARS HERE]
$400,000,000
WILLAMETTE INDUSTRIES, INC.
SENIOR DEBT SECURITIES
----------------
Willamette Industries, Inc. (the "Company"), may from time to time offer to
or through underwriters, or directly to other purchasers or through agents, up
to $400,000,000 aggregate principal amount (or its equivalent in any other
currency or composite currency) of its senior debt securities (the
"Securities"). The Securities will be offered in one or more separate series
in amounts, at prices and on terms to be determined at the time of sale. See
"Plan of Distribution."
The specific designation, aggregate principal amount, authorized
denominations, maturity, rate and time of payment of interest, terms for
redemption, if any, the initial public offering price, the names of, and the
principal amounts to be purchased by or through, underwriters, dealers or
agents, if any, the compensation of such persons and the other special terms
in connection with the offering and sale of the series of the Securities in
respect of which this Prospectus is being delivered (the "Offered Securities")
will be set forth in an accompanying supplement to this Prospectus (the
"Prospectus Supplement"). If the terms of a depositary arrangement with
respect to a specific series of Offered Securities are set forth in the
Prospectus Supplement relating to such series, the Offered Securities of such
series may be issued in whole or in part in global form. The Offered
Securities will be denominated in United States dollars unless another
currency, which may be a composite currency such as the European Currency
Unit, is specified in the Prospectus Supplement.
----------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY
OR ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
THE DATE OF THIS PROSPECTUS IS JUNE , 1996
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 (the "Exchange Act") and in accordance therewith files
reports and other information with the Securities and Exchange Commission (the
"Commission"). Reports, proxy statements and other information filed by the
Company can be inspected and copied at the public reference facilities
maintained by the Commission at 450 Fifth Street, N.W., Washington, D.C.; 500
West Madison Street, Chicago, Illinois; and 7 World Trade Center, New York,
New York. Copies of such material can be obtained from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549,
at prescribed rates. This Prospectus does not contain all information set
forth in the related registrations statement and exhibits thereto which the
Company has filed with the Commission under the Securities Act of 1933 and to
which reference is hereby made.
The Company will send to all registered holders of the Securities such
annual and other reports as are sent to its shareholders in conformity with
the requirements of the Exchange Act.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Company incorporates herein by reference its annual report on Form 10-K
for the year ended December 31, 1995, its quarterly report on Form 10-Q for
the quarter ended March 31, 1996, its current report on Form 8-K filed March
14, 1996, and its current report on Form 8-K filed May 29, 1996, as amended by
Form 8-K/A filed June 10, 1996 (the "May Form 8-K").
All documents filed by the Company pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior
to the termination of the offering of the Securities to which this Prospectus
relates shall be deemed to be incorporated by reference into this Prospectus.
The Company will provide without charge to each person to whom a copy of
this Prospectus is delivered, upon the written or oral request of any such
person, a copy of any or all the foregoing documents incorporated by reference
herein (other than exhibits to such documents which are not specifically
incorporated by reference in such documents). Requests should be directed to
J. A. Parsons, Executive Vice President, Willamette Industries, Inc., 1300
S.W. Fifth Avenue, Suite 3800, Portland, Oregon 97201, telephone (503) 227-
5581.
RECENT TIMBERLAND ACQUISITION
On March 12, 1996, the Company entered into an agreement (the "Cavenham
Agreement") with Cavenham Energy Resources Inc., Cavenham Forest Industries
Inc. and Hanson Natural Resources Company (collectively "Cavenham") providing
for the sale by Cavenham and the purchase by the Company of approximately
1,088,000 acres of timberland and related assets used in Cavenham's timber,
wood products, and energy business in the Pacific Northwest and in North and
Southwest Louisiana for $1,588,000,000.
In April 1996, the Company entered into separate agreements (the "Designee
Agreements") with Crown Pacific Limited Partnership ("Crown"), John Hancock
Mutual Life Insurance Company ("Hancock") and Temple-Inland Forest Products
Corporation ("Temple") providing for the purchase by them (each a "Designee")
of an aggregate of approximately 542,000 acres of the timberland and related
assets covered by the Cavenham Agreement for an aggregate price of
$641,000,000.
The Designee Agreements with Crown and Temple provided that the transactions
contemplated by such agreements would be consummated concurrently with the
consummation of the Cavenham
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Agreement. The Designee Agreement with Hancock provided for the division of
the timberland covered by the agreement into parcels with the purchase and
sale of at least one parcel to be consummated concurrently with the
consummation of the Cavenham Agreement and the purchase and sale of the
remaining parcels (the "Contract Parcels") to be consummated by November 14,
1997. Hancock's obligation to purchase the Contract Parcels is subject to its
ability to secure client funding for the purchases, which it has agreed to
make diligent and sustained efforts to obtain, and to certain other
conditions.
On May 15, 1996, the transactions contemplated by the Cavenham Agreement and
the Designee Agreements were simultaneously consummated, resulting in the
purchase by the Company from Hanson Natural Resources Company of approximately
602,000 acres of timberland in the Pacific Northwest and North Louisiana, a
sawmill in Warrenton, Oregon, inventories and other assets for approximately
$1,144,860,000. The timberland acquired by the Company includes Contract
Parcels aggregating approximately 56,000 acres in Oregon which are to be
conveyed to Hancock for approximately $197,860,000 plus certain expenses
incurred by the Company. Accordingly, after giving effect to the sale of the
Contract Parcels, the Company will have acquired 546,000 acres of timberland
and related assets for approximately $947,000,000, subject to post-closing
price adjustments which at June 10, 1996, approximate an additional
$10,000,000.
Pursuant to the Cavenham Agreement, the Company assumed Cavenham's
environmental and other liabilities relating to the assets covered by the
Cavenham Agreement other than accounts payable, obligations for borrowed money
and specified excluded liabilities. Pursuant to the Designee Agreements, each
Designee assumed and indemnified the Company against such liabilities relating
to the assets purchased by such Designee.
The Company funded the purchase price primarily by borrowing $1,100,000,000
on May 15, 1996, under a credit agreement (the "Credit Agreement") dated as of
May 10, 1996, among the Company and a group of banks providing for a revolving
loan and a term loan. The revolving loan provides for borrowings of up to
$1,000,000,000 in principal amount, matures on May 15, 2001, and at June 12,
1996, had an outstanding principal balance of $500,000,000. The term loan is
in the principal amount of $600,000,000 and matures on May 15, 1998. Both
loans bear interest at either a Base Rate or a LIBO Rate, as defined in the
Credit Agreement and selected by the Company. The interest rates are subject
to periodic adjustment. At June 12, 1996, the weighted average interest rates
per annum for indebtedness outstanding under the revolving loan and the term
loan were 5.75% and 5.72%, respectively.
The Credit Agreement contains certain restrictions on the Company's
activities which include, among other things, restrictions relating to sales
and lease backs, mergers, sales of assets not in the ordinary course of
business, and encumbrances on the Company's property. The Credit Agreement
also provides that the Company will not permit (i) its Consolidated Interest
Coverage Ratio, as defined, for any period of four consecutive fiscal quarters
to be less than 1.5 to 1.0; (ii) its Consolidated Funded Debt, as defined, to
exceed 60% of the sum of its Consolidated Funded Debt plus its consolidated
net worth until the earlier of (A) March 31, 1997, and (B) the repayment of
the term loan; and (iii) its Consolidated Funded Debt to thereafter exceed 55%
of the sum of its Consolidated Funded Debt plus its consolidated net worth.
Reference should be made to the copy of the Credit Agreement filed as an
exhibit to the May Form 8-K for a complete description of its terms.
Pursuant to the Designee Agreement with Hancock, on May 15, 1996, the
Company and Hancock entered into:
1. An agreement (the "Management Agreement") providing for the management of
the Contract Parcels by a Hancock subsidiary until such parcels are purchased
by Hancock or Hancock's right to
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purchase such parcels expires. During the period a Contract Parcel is subject
to the Management Agreement, the net cash income, as defined, from such parcel
is credited against the purchase price for the parcel. The Hancock subsidiary
and a subsidiary of the Company are also parties to the Management Agreement.
2. An agreement (the "Right of First Offer Agreement") providing that
Hancock will not sell or transfer to a third party any tract of the timberland
it acquires pursuant to its Designee Agreement, other than certain exempt
sales and transfers, without first offering to sell such tract to the Company
at the price and on terms at which Hancock proposes to sell or transfer such
tract to the third party. If the Company does not accept an offer and the
tract is thereafter sold to the third party as permitted by the Right of First
Offer Agreement, the Company's rights under the Right of First Offer Agreement
terminate with respect to such tract. The Right of First Offer Agreement
expires on May 15, 2121.
3. An agreement (the "Timber Supply Agreement") providing that Hancock will
offer to sell to the Company 25% of various categories of the logs harvested
from the timberland subject to the Right of First Offer Agreement at a price
equal to the highest sales price at which Hancock is selling logs pursuant to
its open market bidding procedures to unaffiliated customers. The Timber
Supply Agreement expires on June 30, 2001.
The above descriptions of the Cavenham Agreement, the Designee Agreements,
the Management Agreement, the Right of First Offer Agreement, and the Timber
Supply Agreement are summaries and do not purport to be complete. Reference
should be made to the copies of such agreements filed as exhibits to the May
Form 8-K for a complete description of their respective terms.
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THE COMPANY
The Company is a diversified, integrated forest products company which
manufactures unbleached paper products, white paper products and wood-based
building materials at 96 plants located throughout the United States.
Excluding the Contract Parcels which the Company has agreed to sell to
Hancock, the Company owns or controls approximately 1,800,000 acres of
timberland in Arkansas, Louisiana, North Carolina, Oregon, South Carolina,
Tennessee, Texas and Washington.
The Company was incorporated in Oregon in 1906. Its executive offices are
located at 1300 S.W. Fifth Avenue, Suite 3800, Portland, Oregon 97201, and its
telephone number is (503) 227-5581.
USE OF PROCEEDS
As required by the Credit Agreement, the Company will use the net proceeds
from the sale of the Securities to repay outstanding indebtedness under the
term loan provided to the Company pursuant to the Credit Agreement. Pending
such utilization, the proceeds will be held in an interest-bearing escrow
account with one of the Banks.
RATIO OF EARNINGS TO FIXED CHARGES
The following table sets forth the ratio of earnings to fixed charges for
the Company for the periods indicated.
<TABLE>
<CAPTION>
THREE MONTHS
ENDED
YEAR ENDED DECEMBER 31 MARCH 31
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1991 1992 1993 1994 1995 1995 1996
---- ---- ---- ---- ----- ------ ------
<S> <C> <C> <C> <C> <C> <C> <C>
Ratio of Earnings to Fixed Charges...... 2.08 2.56 3.06 4.25 10.83 8.24 7.38
</TABLE>
For purposes of computing the ratio, "earnings" consist of income before
income taxes plus fixed charges. "Fixed charges" consist of interest expense
plus one-third of rent expense (which is deemed representative of an interest
factor).
5
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DESCRIPTION OF SECURITIES
The Securities will be issued under an indenture dated as of January 30,
1993 (the "Indenture"), between the Company and The Chase Manhattan Bank
(National Association), 1 Chase Manhattan Plaza, New York, New York 10081, as
trustee (the "Trustee"). A copy of the Indenture is filed as an exhibit to
each registration statement. The following description summarizes certain
provisions of the Indenture and is subject to the detailed provisions of the
Indenture. Whenever any particular article or section of the Indenture or any
term defined therein is referred to, such article, section or definition is
incorporated by reference, and the statement in connection with which such
reference is made is qualified in its entirety by such reference. Further
terms of each series of the Offered Securities will be set forth in the
Prospectus Supplement.
GENERAL
The Indenture does not limit the aggregate principal amount of the
Securities which may be issued thereunder and provides that the Securities may
be issued from time to time in series. The Securities will be unsecured
obligations of the Company and will rank equally and ratably with other
unsecured and unsubordinated indebtedness of the Company. The Indenture does
not limit the Company's ability to incur other unsecured indebtedness or
contain provisions that would require the Company to repurchase or redeem or
otherwise modify the terms of the Securities upon a change in control or other
event involving the Company that may adversely affect the credit quality of
the Company.
The Prospectus Supplement will describe the following terms of the Offered
Securities: (1) the title of the Offered Securities; (2) any limit on the
aggregate principal amount of the Offered Securities; (3) the date or dates on
which the Offered Securities will mature; (4) the rate or rates per annum at
which the Offered Securities will bear interest, if any, or the manner in
which such rates are determined and the date from which such interest, if any,
will accrue; (5) the dates on which such interest, if any, on the Offered
Securities will be payable and the Regular Record Dates for such Interest
Payment Dates; (6) the currency or currency unit, if other than United States
dollars, of payment of principal of, and premium and interest, if any, on, the
Offered Securities; (7) if the Offered Securities are to be issued in the form
of one or more global securities (a "Global Security"), the identity of the
depositary for such Global Security or Securities; (8) any mandatory or
optional sinking fund or analogous provision; (9) any redemption terms; (10)
the applicability of certain provisions of the Indenture as described under
"Defeasance and Covenant Defeasance"; and (11) any other specific terms,
including additional Events of Default, if any, with respect to the Offered
Securities. (Section 301.)
Unless otherwise provided in the Prospectus Supplement, principal of, and
premium and interest, if any, on, the Offered Securities will be payable, and
the transfer of the Offered Securities will be registrable, at the Corporate
Trust Office of the Trustee in the Borough of Manhattan, the City of New York,
New York, except that payment of interest, if any, may be made at the option
of the Company by check mailed to the address of the person entitled thereto
as it appears in the register for the Offered Securities. (Sections 301, 305
and 1002.)
Unless otherwise indicated in the Prospectus Supplement, the Offered
Securities will be issued only in fully registered form without coupons and,
if denominated in U.S. dollars, will be issued in denominations of $1,000 or
any integral multiple thereof. No service charge will be made for any transfer
or exchange of Securities of any series, but the Company may require payment
of a sum sufficient to cover any tax or other governmental charge payable in
connection therewith. The Company shall not be required (i) to issue, register
the transfer of or exchange any Securities of any series during a period
beginning at the opening of business 15 days before the day of the mailing of
a notice of redemption of Securities of that series selected for redemption
and ending at the close of business on the day of such mailing, or (ii) to
register the transfer of or exchange any Security so
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selected for redemption in whole or in part, except the unredeemed portion of
Securities being redeemed in part. (Sections 302 and 305.)
Securities of a single series may be issued at various times with different
maturity dates, may bear interest at different rates and may otherwise vary,
all as provided in the Indenture. (Sections 301 and 303.)
All moneys paid by the Company to the Trustee or any Paying Agent for the
payment of principal of and premium and interest on any Security which remain
unclaimed for two years after such principal, premium or interest shall have
become due and payable may be repaid to the Company and thereafter the Holder
of such Security shall look only to the Company for payment thereof. (Section
1003.)
If any Securities are payable in a currency or currency unit other than U.S.
dollars, the special federal income tax considerations applicable to such
Securities will be described in the Prospectus Supplement relating thereto.
The Securities may be issued as original issue discount Securities (bearing
no interest or bearing interest at a rate which at the time of issue is below
market rates) to be sold at a substantial discount below their principal
amount. If the Securities are issued as original issue discount Securities,
the special federal income tax and other considerations applicable thereto
will be described in the Prospectus Supplement relating thereto.
CERTAIN COVENANTS OF THE COMPANY
Certain Definitions Applicable to Covenants
"Subsidiary" of the Company is defined as a corporation more than 50% of the
outstanding voting stock of which is owned, directly or indirectly, by the
Company and/or one or more Subsidiaries of the Company. "Restricted
Subsidiary" is defined as a Subsidiary of the Company substantially all the
property of which is located, or substantially all the business of which is
carried on, within the present 50 states of the United States or in Canada and
which owns a Principal Property, excluding, however, any Subsidiary of the
Company which is primarily engaged in the development and sale or financing of
real property. "Principal Property" is defined as (i) any mill, converting
plant, or manufacturing plant owned by the Company or a Restricted Subsidiary
which is located within the present 50 states of the United States or in
Canada and the gross book value of which (without deduction of any
depreciation reserves) on the date as of which the determination is made
exceeds 1% of Consolidated Net Tangible Assets, and (ii) Timberlands other
than those being held primarily for development or sale; such property,
however, will exclude (a) any property which in the opinion of the Board of
Directors of the Company is not of material importance to the total business
conducted by the Company and its Restricted Subsidiaries as an entirety or (b)
any portion of a particular property which is similarly found not to be of
material importance to the use or operation of such property or (c) any oil,
gas or other minerals or mineral rights. "Attributable Debt" is defined as the
total net amount of rent required to be paid during the remaining primary term
of certain leases, discounted at the rate of 15% per annum. "Consolidated Net
Tangible Assets" is defined as the aggregate amount of assets after deducting
(i) all liabilities, other than deferred income taxes, Funded Debt and
shareholders' equity, and (ii) goodwill and like intangibles, of the Company
and its consolidated Subsidiaries. "Funded Debt" is defined as all
indebtedness for money borrowed having a maturity of more than 12 months from
the date as of which the determination is made (or being renewable beyond such
period) and rental obligations (at the amount capitalized) payable more than
12 months from such date under capitalized leases. (Section 101.)
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Restrictions on Secured Debt
The Indenture provides that the Company may not, nor may it permit any
Restricted Subsidiary to, create, assume or guarantee any loan or evidence of
indebtedness for money borrowed ("Debt") secured by a mortgage, pledge or lien
("Mortgage") on any Principal Property of the Company or any Restricted
Subsidiary, or on any share of Capital Stock or Debt of any Restricted
Subsidiary, without securing or causing such Restricted Subsidiary to secure
the Securities equally and ratably with (or, at the Company's option, prior
to) such secured Debt, unless the aggregate amount of all such secured Debt,
together with all Attributable Debt with respect to sale and leaseback
transactions involving Principal Properties (with the exception of such
transactions which are excluded as described in "Restrictions on Sale of
Leaseback Transactions" below), would not exceed 10% of Consolidated Net
Tangible Assets. (Section 1005.)
This restriction does not apply to, and there shall be excluded from secured
Debt in any computation under such restriction, Debt secured by: (a) Mortgages
on property of, or on any shares of Capital Stock of or Debt of, any
corporation existing at the time such corporation becomes a Restricted
Subsidiary, (b) Mortgages in favor of the Company or a Restricted Subsidiary,
(c) Mortgages in favor of governmental bodies to secure progress or advance
payments, (d) Mortgages on property, shares of stock or Debt existing at the
time of acquisition thereof (including acquisition through merger or
consolidation) and purchase money and construction Mortgages which are entered
into within specified time limits, (e) Mortgages securing industrial revenue
or pollution control bonds, and (f) any extension, renewal or refunding of any
Mortgages referred to in the foregoing clauses (a) through (e), inclusive.
(Section 1005.)
Restrictions on Sale and Leaseback Transactions
The Indenture provides that neither the Company nor any Restricted
Subsidiary may enter into any sale and leaseback transaction involving any
Principal Property, unless the aggregate amount of all Attributable Debt with
respect to such sale and leaseback transactions, plus all secured Debt (with
the exception of secured Debt which is excluded as described in "Restrictions
on Secured Debt" above), would not exceed 10% of Consolidated Net Tangible
Assets. (Section 1006.)
This restriction does not apply to, and there shall be excluded from
Attributable Debt in any computation under such restriction, any sale and
leaseback transaction if (a) the lease is for a period, including renewal
rights, of not in excess of three years, (b) the sale or transfer of the
Principal Property is made within a specified period after its acquisition or
construction, (c) the lease secures or relates to industrial revenue or
pollution control bonds, (d) the transaction is between the Company and a
Restricted Subsidiary or between Restricted Subsidiaries or (e) the Company or
such Restricted Subsidiary, within 180 days after the sale is completed,
applies to the retirement of Funded Debt of the Company or a Restricted
Subsidiary, or the purchase of other property which will constitute Principal
Property of a value at least equal to the value of the Principal Property
leased, an amount not less than the greater of (i) the net proceeds of the
sale of the Principal Property leased or (ii) the fair market value of the
Principal Property leased; provided that the amount of proceeds to be applied
to the retirement of Funded Debt shall be reduced by an amount, if any, equal
to the principal amount of debentures or notes (including the Securities) of
the Company or a Restricted Subsidiary surrendered for cancellation to the
applicable trustee thereof and the principal amount of other Funded Debt
voluntarily retired, in each case within 180 days after such sale. (Section
1006.)
Restrictions on Funded Debt of Restricted Subsidiaries
The Indenture provides that the Company may not permit any Restricted
Subsidiary to create, assume or guarantee any Funded Debt except (i) Funded
Debt owed to the Company or a Restricted Subsidiary, (ii) Funded Debt secured
by Mortgages permitted as described under "Restrictions on Secured Debt,"
(iii) Funded Debt of any corporation outstanding at the time such corporation
became
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a Restricted Subsidiary, (iv) Funded Debt of any person outstanding at the
time of its acquisition, or the acquisition of substantially all its
properties, by such Restricted Subsidiary, (v) Funded Debt incurred in
connection with certain refundings, (vi) Funded Debt constituting Attributable
Debt permitted as described under "Restrictions on Sale and Leaseback
Transactions" and (vii) any other Funded Debt if the aggregate principal
amount of all Funded Debt of all Restricted Subsidiaries permitted under this
clause (vii) does not exceed 10% of Consolidated Net Tangible Assets. (Section
1007.)
EVENTS OF DEFAULT
The following are Events of Default under the Indenture with respect to the
Securities of any series: (a) default in the payment of principal of or any
premium on any Security of that series when due; (b) default in the payment of
any interest on any Security of that series when due continued for 30 days;
(c) default in the deposit of any sinking fund payment, when due, in respect
of any Security of that series; (d) default in the performance of any other
covenant of the Company in the Indenture (other than a covenant included in
the Indenture solely for the benefit of a series of the Securities other than
that series), continued for 90 days after written notice as provided in the
Indenture; (e) certain events in bankruptcy, insolvency or reorganization; and
(f) any other Event of Default provided with respect to Securities of a
particular series. (Section 501.) No Event of Default with respect to the
Securities of a particular series necessarily constitutes an Event of Default
with respect to the Securities of any other series.
If an Event of Default with respect to the Securities of any series at the
time Outstanding occurs and is continuing, either the Trustee or the Holders
of at least 25% in aggregate principal amount of the Outstanding Securities of
that series may declare the principal amount (or, if the Securities of that
series are original issue discount Securities, such portion of the principal
amount as may be specified in the terms of that series) of all the Securities
of that series to be due and payable immediately. At any time after a
declaration of acceleration with respect to the Securities of any series has
been made, but before a judgment or decree based on acceleration has been
obtained, the Holders of a majority in principal amount of the Outstanding
Securities of that series may, under certain circumstances, rescind and annul
such acceleration. (Section 502.)
The Indenture provides that, subject to the duty of the Trustee during the
continuance of an Event of Default to act with the required standard of care,
the Trustee will be under no obligation to exercise any of its rights or
powers under the Indenture at the request or direction of any of the Holders,
unless such Holders shall have offered to the Trustee reasonable indemnity.
(Section 601.) Subject to such provisions for the indemnification of the
Trustee, the Holders of a majority in principal amount of the Outstanding
Securities of any series will have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Securities of that series. (Section 512.) The right of a Holder of any
Security to institute a proceeding with respect to the Indenture is subject to
certain conditions precedent, but each Holder has an absolute right to receive
payment of principal or premium and interest, if any, when due and to
institute suit for the enforcement of any such payment. (Sections 507 and
508.)
The Company is required to furnish to the Trustee annually a statement as to
the performance by the Company of its obligations under the Indenture and as
to any default in such performance. (Section 1008.)
MODIFICATION AND WAIVER
Modifications and amendments of the Indenture may be made by the Company and
the Trustee with the consent of the Holders of a majority in principal amount
of the Outstanding Securities of each series affected by such modification or
amendment; provided, however, that no such modification or
9
<PAGE>
amendment may, without the consent of the Holder of each Outstanding Security
affected thereby, (a) change the stated maturity date of the principal of, or
any installment of principal of or interest, if any, on, any Security, (b)
reduce the principal amount of, or premium or rate of interest, if any, on,
any Security, (c) reduce the amount of principal of an original issue discount
Security payable upon acceleration of the maturity thereof, (d) change the
place or currency of payment of principal of, or premium or interest, if any,
on, any Security, (e) impair the right to institute suit for the enforcement
of any payment on or with respect to any Security, (f) change the provisions
for defeasance or covenant defeasance (each as defined below) made applicable
to any Security, or (g) reduce the percentage in principal amount of
Outstanding Securities of any series, the consent of whose Holders is required
for modification or amendment of the Indenture or for waiver of compliance
with certain provisions of the Indenture or for waiver of certain defaults.
(Section 902.)
The Holders of a majority in principal amount of the Outstanding Securities
of each series may, on behalf of all Holders of the Securities of that series,
waive, insofar as that series is concerned, compliance by the Company with
certain restrictive provisions of the Indenture. (Section 1009.) The Holders
of a majority in aggregate principal amount of the Outstanding Securities of
each series may, on behalf of all Holders of the Securities of that series,
waive any past default under the Indenture with respect to the Securities of
that series, except a default in the payment of principal, or premium or
interest, if any, or in respect of a covenant or condition which cannot be
waived without the consent of each Holder of the Securities of that series.
(Section 513.)
CONSOLIDATION, MERGER AND SALE OF ASSETS
The Company, without the consent of the Holders of any of the Outstanding
Securities under the Indenture, may consolidate with or merge into, or
transfer its assets substantially as an entirety to, any corporation organized
under the laws of any domestic jurisdiction, and any other person may
consolidate with, or merge into, or transfer its assets substantially as an
entirety to the Company provided that (i) the successor corporation (if any)
assumes the Company's obligations on the Securities and under the Indenture,
(ii) after giving effect to the transaction and treating any indebtedness
which becomes an obligation of the Company or a Subsidiary as a result of such
transaction as having been incurred by the Company or the Subsidiary at the
time of such transaction, no Event of Default, and no event which, after
notice or lapse of time, would become an Event of Default, shall have occurred
and be continuing, (iii) if as a result of the transaction a Principal
Property would become subject to a Mortgage which would not be permitted by
the Indenture, the Securities shall be secured equally with (or prior to) the
indebtedness secured thereby, and (iv) certain other conditions are met.
(Section 801.)
GLOBAL SECURITIES
The Offered Securities may be issued in whole or in part in the form of one
or more Global Securities that will be deposited with, or on behalf of, a
depositary (the "Depositary") identified in the Prospectus Supplement relating
to such Offered Securities. Unless and until it is exchangeable in whole or in
part for Offered Securities in definitive form, a Global Security may not be
transferred except as a whole by the Depositary for such Global Security to a
nominee of such Depositary or by a nominee of such Depositary to such
Depositary or another nominee of such Depositary or by such Depositary or any
such nominee to a successor of such Depositary or a nominee of such successor.
(Sections 303 and 305.)
The specific terms of the depositary arrangement, if any, with respect to a
series of Offered Securities will be described in the Prospectus Supplement
relating to such series. The Company anticipates that the following provisions
will apply to all depositary arrangements.
10
<PAGE>
Ownership of beneficial interests in a Global Security will be limited to
persons that have accounts with the Depositary for such Global Security or its
nominee ("Participants") or persons that may hold interests through
Participants. Such accounts shall be designated by the underwriters or agents
with respect to the Offered Securities underwritten or solicited by them. The
Company expects that upon the issuance of a Global Security, the Depositary
for such Global Security will credit, on its book-entry registration and
transfer system, the Participants' accounts with the respective principal
amounts of the Offered Securities represented by such Global Security.
Ownership of beneficial interests in such Global Security will be shown on,
and the transfer of such ownership interests will be effected only through,
records maintained by the Depositary (with respect to interests of
Participants) and on the records of Participants (with respect to interests of
persons held through Participants). The laws of some states may require that
certain purchasers of securities take physical delivery of such securities in
definitive form. Such limits and such laws may impair the ability to own,
transfer or pledge beneficial interests in a Global Security.
So long as the Depositary for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depositary or such nominee, as
the case may be, will be considered the sole owner or Holder of the Offered
Securities represented by such Global Security for all purposes under the
Indenture. Except as provided below, owners of beneficial interests in a
Global Security will not be entitled to have the Offered Securities
represented by such Global Security registered in their names, will not
receive or be entitled to receive physical delivery of the Offered Securities
in definitive form and will not be considered the owners or Holders thereof
under the Indenture. Accordingly, each person owning a beneficial interest in
such a Global Security must rely on the procedures of the Depositary and, if
such person is not a Participant, on the procedures of the Participant through
which such person owns its interest, to exercise any rights of a Holder under
the Indenture. The Company understands that under existing industry practices,
in the event that the Company requests any action of Holders or that an owner
of a beneficial interest in such a Global Security desires to give or take any
action which a Holder is entitled to give or take under the Indenture, the
Depositary would authorize the Participants holding the relevant beneficial
interests to give or take such action, and such Participants would authorize
beneficial owners owning through such Participants to give or take such action
or would otherwise act upon the instructions of beneficial owners owning
through them.
Payment of principal of, and premium and interest, if any, on, Offered
Securities registered in the name of a Depositary or its nominee will be made
to the Depositary or its nominee, as the case may be, as the registered owner
of the Global Security representing such Offered Securities. None of the
Company, the Trustee, any Paying Agent or any other agent of the Company or
the Trustee will have any responsibility or liability for any aspect of the
records relating to or payments made on account of beneficial ownership
interests in the Global Security for such Offered Securities or for
maintaining, supervising or reviewing any records relating to such beneficial
ownership interests.
The Company expects that upon receipt of any payment of principal of, or
premium or interest on, a Global Security, the Depositary will immediately
credit Participants' accounts with payments in amounts proportionate to their
respective beneficial interests in the principal amount of such Global
Security as shown on the records of the Depositary. Payments by Participants
to owners of beneficial interests in such Global Security held through such
Participants will be the responsibility of such Participants, as is now the
case with securities held for the accounts of customers registered in "street
name."
A Global Security is exchangeable for definitive Securities in registered
form only if (i) the Depositary for any Offered Securities represented by a
Global Security notifies the Company that it is unwilling or unable to
continue as Depositary or ceases to be a clearing agency registered under the
Exchange Act and a successor Depositary is not appointed by the Company within
90 days after receiving such notice or becoming aware that the Depositary is
no longer so registered, (ii) the Company in its sole discretion determines
that such Global Security shall be exchangeable for
11
<PAGE>
definitive Securities in registered form and notifies the Trustee thereof, or
(iii) there shall have occurred and be continuing an Event of Default or an
event which after notice or lapse of time would be an Event of Default with
respect to the Offered Securities represented by such Global Security. The
Company will issue Securities in definitive form upon registration of transfer
of, or in exchange for, any Global Security exchangeable pursuant to the
preceding sentence. (Section 305.)
DEFEASANCE AND COVENANT DEFEASANCE
The Indenture provides, if such provision is made applicable to the
Securities of any series (which will be indicated in the Prospectus
Supplement) that the Company may elect either (a) to defease and be discharged
from any and all obligations in respect of the Securities of such series
(except for certain obligations to register the transfer or exchange of
Securities of such series, to replace mutilated, destroyed, lost or stolen
Securities of such series, to maintain paying agencies and to hold moneys for
payment in trust) ("defeasance") or (b) to be released from its obligations
with respect to the Securities of such series under certain restrictive
covenants of the Indenture, including those described under "Certain Covenants
of the Company," and "Consolidation, Merger and Sale of Assets" ("covenant
defeasance") and the occurrence of an event described in clause (d) under
"Events of Default" shall no longer be an Event of Default with respect to the
Securities of such series, in each case, if the Company deposits, in trust,
with the Trustee money and/or Government Obligations, which through the
payment of interest thereon and principal thereof in accordance with their
terms will provide money in an amount sufficient, without reinvestment, to pay
the principal of and any premium and interest on the Outstanding Securities of
such series and any mandatory sinking fund payments or analogous payments in
accordance with the terms of the Outstanding Securities of such series and the
Indenture. Such a trust may only be established if, among other things, (i) no
Event of Default or event which with the giving of notice or lapse of time, or
both, would become an Event of Default with respect to such series under the
Indenture shall have occurred and be continuing on the date of such deposit,
(ii) such deposit will not cause the Trustee to have any conflicting interest
with respect to other securities of the Company and (iii) the Company shall
have delivered an Opinion of Counsel to the effect that the Holders will not
recognize income, gain or loss for federal income tax purposes as a result of
such defeasance and will be subject to federal income tax on the same amounts,
in the same manner, and at the same times as if such defeasance had not
occurred. In the event the Company exercises its covenant defeasance option
with respect to the Securities of any series and the Securities of such series
are declared due and payable because of the occurrence of any Event of
Default, the amount of money and Government Obligations on deposit with the
Trustee will be sufficient to pay amounts due on the Securities of such series
at the time of their Stated Maturity but may not be sufficient to pay amounts
due on the Securities of such series at the time of the acceleration resulting
from such Event of Default. However, the Company will remain liable with
respect to such payments. (Article Thirteen.)
GOVERNING LAW
The Indenture and the Securities are governed by and construed in accordance
with the laws of the state of New York.
REGARDING THE TRUSTEE
The Company maintains deposit accounts and conducts other banking
transactions with The Chase Manhattan Bank (National Association) in the
ordinary course of the Company's business. The Chase Manhattan Bank (National
Association) serves as trustee under another indenture with respect to certain
of the Company's other senior debt securities.
12
<PAGE>
VALIDITY OF OFFERED SECURITIES
The validity of the Offered Securities will be passed upon for the Company
by Miller, Nash, Wiener, Hager & Carlsen LLP, 111 S.W. Fifth Avenue, Portland,
Oregon 97204.
EXPERTS
The consolidated financial statements of the Company included in the
Company's annual report on Form 10-K for the year ended December 31, 1995,
have been audited by KPMG Peat Marwick LLP, independent auditors, as set forth
in their report included therein and incorporated herein by reference. The
report of KPMG Peat Marwick LLP covering the consolidated financial statements
refers to a change in accounting for income taxes and post retirement benefits
in 1993. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report and upon the authority of such firm as
experts in accounting and auditing.
PLAN OF DISTRIBUTION
The Company may sell the Securities to one or more underwriters for public
offering and sale by them or may sell the Securities to investors directly or
through agents. Any such underwriter or agent involved in the offer and sale
of the Offered Securities will be named in the Prospectus Supplement.
Underwriters may offer and sell the Offered Securities at a fixed price or
prices, which may be changed, or from time to time at market prices prevailing
at the time of sale, at prices related to such prevailing market prices or at
negotiated prices. In connection with the sale of the Offered Securities,
underwriters may be deemed to have received compensation from the Company in
the form of underwriting discounts or commissions and may also receive
commissions from purchasers of the Offered Securities for whom they may act as
agent. Underwriters may sell the Offered Securities to or through dealers, and
such dealers may receive compensation in the form of discounts, concessions or
commissions from the underwriters or commissions from the purchasers for whom
they may act as agent.
Any underwriting compensation paid by the Company to underwriters or agents
in connection with the offering of the Offered Securities, and any discounts,
concessions or commissions allowed by underwriters to participating dealers,
will be set forth in the Prospectus Supplement. Underwriters, dealers and
agents participating in the distribution of the Offered Securities may be
deemed to be underwriters, and any discounts and commissions received by them
and any profit realized by them on resale of the Offered Securities may be
deemed to be underwriting discounts and commissions under the Securities Act
of 1933. Underwriters, dealers and agents may be entitled, under agreements
entered into with the Company, to indemnification against or contribution
toward certain civil liabilities, including liabilities under the Securities
Act of 1933.
If so indicated in the Prospectus Supplement, the Company will authorize
dealers acting as the Company's agents to solicit offers by certain
institutions to purchase the Offered Securities from the Company at the public
offering price set forth in the Prospectus Supplement pursuant to delayed
delivery contracts providing for payment and delivery on the date or dates
stated in the Prospectus Supplement. Each of such contracts will be for an
amount not less than, and unless the Company otherwise agrees the aggregate
principal amount of Securities sold pursuant to such contracts shall be not
more than, the respective amounts stated in the Prospectus Supplement.
Certain of the underwriters or agents and their associates may engage in
transactions with and perform services for the Company in the ordinary course
of business.
13
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee................... $ 68,966
Accounting fees................................................. 25,000*
Legal fees...................................................... 25,000*
Blue Sky qualification fees and expenses (including legal fees). 25,000*
Printing and engraving.......................................... 19,500*
Trustee's fees and expenses under Indenture..................... 10,000*
Rating agency fees.............................................. 130,000*
Miscellaneous................................................... 1,534*
---------
Total....................................................... $ 305,000*
=========
</TABLE>
- --------
*Estimated
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
ORS 60.367, a section of the Oregon Business Corporation Act (the "Act"),
provides in substance that any director held liable for an unlawful
distribution in violation of ORS 60.367 is entitled to contribution from (i)
every other director who voted for or assented to the distribution without
complying with the applicable statutory standards of conduct and (ii) each
shareholder for the amount the shareholder accepted knowing the distribution
was made in violation of the Act or the corporation's articles of
incorporation.
As authorized by the Act, Sections A and B of Article V of the registrant's
Third Restated Articles of Incorporation provide that, subject to certain
limitations, directors and officers are entitled to indemnification against
certain liabilities to the full extent authorized under ORS 57.255 and ORS
57.260 (now ORS 60.391), provided the directors or officers have met the
applicable standard of conduct specified in the Act. Subject to certain
specified limitations, directors and officers are also entitled to
indemnification under Sections D and E of Article V against liabilities
arising from the fact that they are or were directors or officers or acting in
certain other capacities at the registrant's request whether or not they met
the applicable standard of conduct specified in the Act.
Reference is made to section 6 of the Underwriting Agreement and section 8
of the Distribution Agreement filed herewith as Exhibits 1.1 and 1.2,
respectively, for provisions regarding the indemnification of the registrant,
its directors, certain of its officers and its controlling persons against
certain civil liabilities, including civil liabilities under the Securities
Act of 1933.
The registrant maintains directors' and officers' liability insurance under
which the registrant's directors and officers are insured against loss (as
defined) on account of claims made against them for wrongful acts (as
defined).
ITEM 16. EXHIBITS.
The exhibits to the registration statement required by Item 601 to
Regulation S-K are listed in the accompanying index to exhibits.
II-1
<PAGE>
ITEM 17. UNDERTAKINGS.
(a) Rule 415 Offering.
The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement;
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 unless the information required to be included in
such post-effective amendment is contained in a periodic report filed by
the registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 (the "Exchange Act") and incorporated herein by
reference;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement (or the most recent post-
effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
registration statement, unless the information required to be included in
such post-effective amendment is contained in a periodic report filed by
the registrant pursuant to Section 13 or Section 15(d) of the Exchange Act
and incorporated herein by reference; provided that, notwithstanding the
foregoing, any increase or decrease in volume of securities offered (if the
total dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20% change in the
maximum aggregate offering price set forth in the "Calculation of
Registration Fee" table in the effective registration statement; and
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or any
material change to such information in the registration statement.
(2) That, for purposes of determining any liability under the Securities Act
of 1933, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any
of the securities being registered which remain unsold at the termination of
the offering.
(b) Filing Incorporating Subsequent Exchange Act Documents by Reference.
The undersigned registrant hereby undertakes that, for the purpose of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or (15(d) of the Exchange
Act that is incorporated by reference in the registration statement shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to
be the initial bona fide offering thereof.
(h) Acceleration of Effectiveness.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of the
registrant pursuant to the provisions described in Item 15 above, or
otherwise, the registrant has been advised that, in the opinion of the
Securities and Exchange Commission, such indemnification is against public
policy as expressed in the Securities Act of 1933 and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being
II-2
<PAGE>
registered, the registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act of 1933 and will be
governed by the final adjudication of such issue. The undertaking of the
registrant in the preceding sentence does not apply to insurance against
liability arising under the Securities Act of 1933.
II-3
<PAGE>
SIGNATURES
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THE REGISTRANT
CERTIFIES THAT IT HAS REASONABLE GROUNDS TO BELIEVE THAT IT MEETS ALL OF THE
REQUIREMENTS FOR FILING ON FORM S-3 AND HAS DULY CAUSED THIS REGISTRATION
STATEMENT TO BE SIGNED ON ITS BEHALF BY THE UNDERSIGNED, THEREUNTO DULY
AUTHORIZED, IN THE CITY OF PORTLAND, STATE OF OREGON, ON THE 13TH DAY OF JUNE,
1996.
Willamette Industries, Inc.
Steven R. Rogel*
By __________________________________
STEVEN R. ROGEL
President
and Chief Executive Officer
PURSUANT TO THE REQUIREMENTS OF THE SECURITIES ACT OF 1933, THIS REGISTRATION
STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE CAPACITIES
INDICATED ON THE 13TH DAY OF JUNE, 1996.
SIGNATURE TITLE
(1) Principal Executive Officer and Director:
Steven R. Rogel* President and Chief Executive Officer
- ------------------------------------- and Director
STEVEN R. ROGEL
(2) Principal Financial Officer:
/s/ J. A. Parsons Executive Vice President and Chief
- ------------------------------------- Financial Officer, Secretary and
J. A. PARSONS Treasurer
(3) Principal Accounting Officer:
/s/ Greg W. Hawley Vice President-Controller
- -------------------------------------
GREG W. HAWLEY
(4) A Majority of the Board of Directors:
C. M. Bishop, Jr.* Director
Gerard K. Drummond* Director
E. B. Hart* Director
C. W. Knodell* Director
Paul N. McCracken* Director
Stuart J. Shelk, Jr.* Director
Robert M. Smelick* Director
William Swindells* Director
Samual C. Wheeler* Director
Benjamin R. Whiteley* Director
/s/ J. A. Parsons
*By _________________________________
J. A. PARSONS
ATTORNEY-IN-FACT
II-4
<PAGE>
INDEX TO EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DOCUMENT DESCRIPTION
------- --------------------
<C> <S>
1.1. Form of proposed Underwriting Agreement.
1.2. Form of Distribution Agreement for Medium-Term Notes.
4.1. Indenture, dated as of January 30, 1993, between the registrant and
The Chase Manhattan Bank (National Association). Incorporated by
reference to Exhibit 4A to the registrants registration statement on
Form S-3 (File No. 33-58044) effective March 1, 1993.
4.2. Form of Fixed Rate Note.
4.3. Form of Medium-Term Note (fixed rate). Incorporated by reference to
Exhibit 4.4 to the registrant's registration statement on Form S-3
(File No. 33-53263) effective May 3, 1994 (the "1994 Form S-3").
4.4. Form of Medium-Term Note (floating rate). Incorporated by reference to
Exhibit 4.5 to the 1994 Form S-3.
4.5. Form of Fixed Rate Debenture
5. Opinion of Miller, Nash, Wiener, Hager & Carlsen LLP as to the
validity of the Securities.
12. Computation of ratio of earnings to fixed charges. Incorporated by
reference to Exhibit 12 to the registrants quarterly report on Form
10-Q for the quarter ended March 31, 1996.
23.1. Consent of KPMG Peat Marwick LLP, independent auditors.
23.2. Consent of Miller, Nash, Wiener, Hager & Carlsen LLP (included in
Exhibit 5).
24.1. Power of attorney dated February 8, 1996, of certain officers and
directors of the registrant.
24.2. Power of attorney dated May 22, 1996, of Greg W. Hawley, Vice
President-Controller of the registrant.
25. Form T-1 Statement of Eligibility and Qualification under the Trust
Indenture Act of 1939 of The Chase Manhattan Bank (National
Association).
</TABLE>
- --------
Other exhibits listed in Item 601 of Regulation S-K are not applicable.
II-5
<PAGE>
Willamette Industries, Inc.
Underwriting Agreement
To: The Representatives ____________, 1996
named in Schedule I
hereto of the Under-
writers named in
Schedule II hereto
Dear Sirs:
Willamette Industries, Inc., an Oregon corporation (the "Company"),
proposes to sell to the underwriters named in Schedule II hereto (the
"Underwriters"), for whom you are acting as representatives (the
"Representatives"), the principal amount of its senior debt securities
identified in Schedule I hereto (the "Securities"), to be issued under an
indenture (the "Indenture") dated as of January 30, 1993, between the Company
and The Chase Manhattan Bank (National Association), as trustee (the "Trustee").
If the firm or firms listed in Schedule II hereto include only the firm or firms
listed in Schedule I hereto, then the terms "Underwriters" and
"Representatives," as used herein shall each be deemed to refer to such firm or
firms.
1. Representations and Warranties. The Company represents and warrants
------------------------------
to, and agrees with, each Underwriter that:
(a) The Company meets the requirements for use of Form S-3 under the
Securities Act of 1933 (the "Act") and the rules and regulations of the
Securities and Exchange Commission (the "Commission") thereunder and has filed
with the Commission registration statements on such form (file number 33-
_____________) (the "1996 registration statement") and (file number 33-53263),
which have become effective, for the registration under the Act of the
Securities. Each such registration statement as amended through the date of
this Agreement meets the requirements set forth in Rule 415(a) under the Act
and complies in all other material respects with said rule. The Company
proposes to file with the Commission pursuant to Rule 424 under the Act a
supplement to the form of combined prospectus included in the 1996
registration statement relating to the Securities and the plan of distribution
thereof. The Company has previously advised you of such other information
(financial and other) with respect to the Company as is expected to be
included therein. Such registration statements, including the exhibits
thereto, as amended through the date of this Agreement, are hereinafter
individually called a "Registration Statement" and collectively called the
"Registration Statements"; such combined prospectus in the form in which it
appears in
Exhibit 1.1
-1-
<PAGE>
the 1996 registration statement is hereinafter called the "Basic Prospectus"
and such supplemented form of prospectus, in the form it shall be filed with
the Commission pursuant to Rule 424 (including the Basic Prospectus as so
supplemented) is hereinafter called the "Final Prospectus." Any reference
herein to the Registration Statements, the Basic Prospectus, or the Final
Prospectus shall be deemed to include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 that were filed under the Securities
Exchange Act of 1934 (the "Exchange Act") on or before the date of this
Agreement, the Basic Prospectus or the Final Prospectus, as the case may be;
and any reference herein to the terms "amend," "amendment" or "supplement"
with respect to the Registration Statements, the Basic Prospectus or the Final
Prospectus shall be deemed to include (in addition to any other amendment or
supplement) the filing of any document under the Exchange Act after the date
of this Agreement, the Basic Prospectus or the Final Prospectus, as the case
may be, which is incorporated therein by reference.
(b) At the effective date of each Registration Statement, at the date
hereof, at the date the Final Prospectus is first filed pursuant to Rule 424
under the Act, at any date prior to the Closing Date (as hereinafter defined)
when any amendment to such Registration Statement becomes effective (including
the filing of any document incorporated by reference in such Registration
Statement), and at the date any supplement to the Final Prospectus is filed
with the Commission and at the Closing Date, (i) such Registration Statement,
as amended as of any such time, and the Final Prospectus, as amended or
supplemented as of any such time, and the Indenture complied or will comply in
all material respects with the applicable requirements of the Act, the Trust
Indenture Act of 1939 (the "Trust Indenture Act") and the Exchange Act and the
respective rules thereunder and (ii) neither such Registration Statement, as
amended as of any such time, nor the Final Prospectus, as amended or
supplemented as of any such time, contained or will contain any untrue
statement of a material fact or omitted or will omit to state any material
fact required to be stated therein or necessary in order to make the
statements therein not misleading; provided, however, that the Company makes
-----------------
no representations or warranties as to (x) that part of such Registration
Statement that shall constitute the Statement of Eligibility and Qualification
(Form T-1) under the Trust Indenture Act of the Trustee or (y) the information
contained in or omitted from such Registration Statement or the Final
Prospectus or any amendment thereof or supplement thereto in reliance upon and
in conformity with information furnished in writing to the Company by or on
behalf of any Underwriter through the Representatives specifically for use in
connection with the preparation of such Registration Statement and the Final
Prospectus.
(c) The Company has furnished to the Representatives a copy of each
Registration Statement as originally filed and of each amendment thereto, each
document incorporated therein by reference, each consent and exhibit filed
therewith and each supplement to the Basic Prospectus heretofore filed with
the Commission.
2. Purchase and Sale. Subject to the terms and conditions and in
-----------------
reliance upon the representations and warranties herein set forth, the Company
agrees to sell to each Underwriter, and each Underwriter agrees, severally and
not jointly, to purchase from the Company, at the
Exhibit 1.1
-2-
<PAGE>
purchase price set forth in Schedule I the principal amount of the Securities
set forth opposite such Underwriter's name in Schedule II except that, if
Schedule I provides for the sale of Securities pursuant to delayed delivery
arrangements, the respective principal amounts of Securities to be purchased by
the Underwriters shall be as set forth in Schedule II hereto, less the
respective amounts of "Contract Securities" (as hereinafter defined) determined
as provided below. Securities to be purchased by the Underwriters are herein
sometimes called the "Underwriters' Securities" and Securities to be purchased
pursuant to delayed delivery contracts are herein sometimes called "Contract
Securities."
If so provided in Schedule I, the Underwriters are authorized to solicit
offers to purchase Securities from the Company pursuant to delayed delivery
contracts ("Delayed Delivery Contracts") substantially in the form of Schedule
III but with such changes therein as the Company may authorize or approve. As
compensation therefor, the Company will pay to the Representatives, for the
account of the Underwriters, on the Closing Date, the percentage set forth in
Schedule I of the principal amount of the Securities for which Delayed Delivery
Contracts are made. Delayed Delivery Contracts are to be with institutional
investors, including commercial and savings banks, insurance companies, pension
funds, investment companies and educational and charitable institutions. The
entering into of Delayed Delivery Contracts arranged by the Underwriters shall
in each case be subject to the Company's approval and acceptance. Except as the
Company may otherwise agree, each Delayed Delivery Contract must be for not less
than the minimum principal amount set forth in Schedule I and the aggregate
principal amount of Contract Securities may not exceed the maximum aggregate
principal amount set forth in Schedule I. The Underwriters will not have any
responsibility in respect of the validity or performance of Delayed Delivery
Contracts. The principal amount of Securities to be purchased by each
Underwriter as set forth in Schedule II shall be reduced by an amount which
shall bear the same proportion to the total principal amount of Contract
Securities as the principal amount of Securities set forth opposite the name of
such Underwriter bears to the aggregate principal amount set forth in Schedule
II, except to the extent that the Representatives determine that such reduction
shall be otherwise than in such proportion and so advise the Company in writing;
provided, however, that the total principal amount of Securities to be purchased
- -----------------
by all Underwriters shall be the aggregate principal amount set forth in
Schedule II hereto, less the aggregate principal amount of Contract Securities,
and provided, further, that the Securities shall be issued in authorized
denominations only.
3. Delivery and Payment. Delivery of and payment for the Underwriters'
--------------------
Securities shall be made at the office, on the date and at the time specified in
Schedule I, which date and time may be postponed by agreement between the
Representatives and the Company or as provided in Section 7 hereof (such date
and time of delivery and payment for the Securities being herein called the
"Closing Date"). Delivery of the Underwriters' Securities shall be made to the
Representatives for the respective accounts of the several Underwriters against
payment, by the several Underwriters through the Representatives, of the
purchase price to or upon the order of the Company in the funds specified in
Schedule I. Certificates for the Underwriters' Securities shall be registered
in such names and in such denominations as the Representatives may request not
less than three full business days prior to the Closing Date.
Exhibit 1.1
-3-
<PAGE>
The Company will have the Underwriters' Securities available for
inspection, checking and packaging by the Representatives in the city in which
delivery and payment is to occur, not later than 1 p.m., on the business day
prior to the Closing Date.
4. Agreements. The Company agrees with the several Underwriters that:
----------
(a) Prior to the termination of the offering of the Securities, the Company
will not file any amendment of a Registration Statement or supplement
(including the Final Prospectus) to the Basic Prospectus unless the Company
has furnished the Representatives a copy for review prior to filing and will
not file any such proposed amendment or supplement to which the
Representatives reasonably object. Subject to the foregoing sentence, the
Company will file the Final Prospectus with the Commission pursuant to Rule
424 no later than the second business day following the earlier of the
determination of the offering price of the Securities or the date it is first
used after effectiveness in connection with a public offering or sales or will
cause the Final Prospectus to be transmitted to the Commission for filing
pursuant to Rule 424 by a means reasonably calculated to result in filing with
the Commission by that date. The Company will promptly advise the
Representatives when the Final Prospectus shall have been transmitted to the
Commission for filing pursuant to Rule 424, and, until the termination of the
offering of the Securities, (i) when any amendment to a Registration Statement
relating to the Securities shall have become effective, (ii) of any request by
the Commission for any amendment of a Registration Statement or amendment of
or supplement to the Final Prospectus or for any additional information, (iii)
of the issuance by the Commission of any stop order suspending the
effectiveness of a Registration Statement or the institution or threatening of
any proceeding for that purpose and (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the
Securities for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. The Company will use its best efforts to
prevent the issuance of any such stop order and, if issued, to obtain as soon
as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Securities is
required to be delivered under the Act, any event occurs as a result of which
the Final Prospectus as then amended or supplemented would include any untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein, in the light of the circumstances under which
they were made, not misleading, or if at any time it shall be necessary to
amend or supplement the Registration Statements or the Final Prospectus to
comply with the Act or the Exchange Act or the respective rules thereunder,
the Company promptly will prepare and file with the Commission, subject to the
first sentence of paragraph (a) of this Section 4, an amendment or supplement
which will correct such statement or omission or an amendment which will
effect such compliance.
(c) The Company will make generally available to its security holders and
to the Representatives as soon as practicable, but not later than 45 days
after the end of the 12-month period beginning at the end of the fiscal
quarter (or if the fiscal quarter is the
Exhibit 1.1
-4-
<PAGE>
fourth fiscal quarter, not later than 90 days after the end of such 12-month
period) of the Company which ends after the later of (i) the effective date of
the Registration Statement last declared effective, (ii) the effective date of
the most recent post-effective amendment to a Registration Statement
immediately preceding the Closing Date and (iii) the date of filing of the
Company's most recent annual report on Form 10-K immediately preceding the
Closing Date, an earnings statement (which need not be audited) of the Company
and its subsidiaries, covering such 12-month period, which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and counsel for the
Underwriters, without charge, copies of each Registration Statement (including
exhibits thereto) and each amendment thereto which shall become effective on
or prior to the Closing Date and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of the Final
Prospectus and any amendments thereof and supplements thereto as the
Representatives may reasonably request. The Company will pay the expenses of
printing all documents relating to the offering.
(e) The Company will use its best efforts to arrange for qualification of
the Securities for sale under the laws of such domestic jurisdictions as the
Representatives may reasonably designate, will maintain such qualifications in
effect so long as reasonably required for the distribution of the Securities
and will arrange for the determination of the legality of the Securities for
purchase by institutional investors; provided, however, that the Company will
-----------------
not be required to qualify to do business in any jurisdiction where it is not
now qualified or to take any action which would subject it to general or
unlimited service of process where it is not now subject to such service of
process.
(f) Until the business day following the Closing Date, the Company will
not, without the consent of the Representatives, offer or sell, or announce
the offering of, any debt securities (other than the Securities) having a
maturity of more than one year.
(g) The Company will pay all expenses incident to the performance of its
obligations under this Agreement, and will reimburse the Underwriters for any
expenses (including fees and disbursements of counsel) reasonably incurred by
them in connection with qualification of the Securities for sale and
determination of their eligibility for investment pursuant to paragraph (e) of
this Section 4 and the printing of memoranda relating thereto, for any fees
charged by investment rating agencies for the rating of the Securities and for
expenses reasonably incurred in distributing prospectuses to the Underwriters.
5. Conditions to the Obligations of the Underwriters. The obligations of
-------------------------------------------------
the several Underwriters to purchase and pay for the Underwriters' Securities
shall be subject to the accuracy of the representations and warranties on the
part of the Company contained herein as of the date hereof and as of the Closing
Date, to the accuracy of the statements of officers of the Company made in any
certificates pursuant to the provisions hereof, to the performance and
Exhibit 1.1
-5-
<PAGE>
observance by the Company of all covenants and agreements herein contained on
its part to be performed and observed and to the following additional conditions
precedent:
(a) No stop order suspending the effectiveness of a Registration Statement,
as amended from time to time, shall have been issued, no proceedings for that
purpose shall have been instituted or threatened and to the knowledge of the
Company or any Underwriter, no such proceeding shall be contemplated by the
Commission.
(b) The Company shall have furnished to the Representatives an opinion of
Miller, Nash, Wiener, Hager & Carlsen LLP, counsel for the Company, dated as
of the Closing Date 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 Oregon, with
full corporate power and authority to own its properties and conduct its
business as described in the Final Prospectus (as amended and
supplemented);
(ii) the Indenture has been duly authorized, executed and delivered,
has been duly qualified under the Trust Indenture Act, and constitutes a
legal, valid and binding instrument enforceable against the Company in
accordance with its terms (subject to applicable bankruptcy, fraudulent
transfer, reorganization, insolvency, moratorium or other laws affecting
creditors' rights generally and to general equitable principles); and the
Securities have been duly authorized and, when executed and authenticated
in accordance with the provisions of the Indenture and delivered to and
paid for by the Underwriters pursuant to this Agreement, in the case of the
Underwriters' Securities, or by the purchasers thereof pursuant to Delayed
Delivery Contracts in the case of any Contract Securities, will constitute
legal, valid and binding obligations of the Company entitled to the
benefits of the Indenture;
(iii) each Registration Statement and any amendments thereto have become
effective under the Act; to the knowledge of such counsel, no stop order
suspending the effectiveness of such Registration Statement, as amended,
has been issued, no proceedings for that purpose have been instituted or
threatened or are contemplated; and each Registration Statement, the Final
Prospectus and each amendment thereof or supplement thereto as of their
respective effective or issue dates complied as to form in all material
respects with the applicable requirements of the Act, the Exchange Act, the
Trust Indenture Act, and the respective rules thereunder; the descriptions
in the Registration Statements and the Final Prospectus of the Securities
and of legal or governmental proceedings and contracts fairly present the
information required to be shown; and, to the knowledge of such counsel,
there are no legal or governmental proceedings required to be described in
the Final Prospectus which are not described as required, nor are there any
contracts of a character required to be described in a Registration
Statement or the Final Prospectus or to be filed as an exhibit to such
Exhibit 1.1
-6-
<PAGE>
Registration Statement which are not described or filed as required;
provided, however, that such counsel need express no opinion as to the
financial statements or other financial or statistical data information
contained in the Registration Statements, the Final Prospectus or any
amendment or supplement thereto;
(iv) this Agreement and any Delayed Delivery Contracts have been duly
authorized, executed and delivered by the Company;
In addition, such counsel shall state that such counsel has participated in
conferences with officers and other representatives of the Company,
representatives of the independent public accountants for the Company,
representatives of the Representatives, and counsel for the Representatives,
at which the contents of the Registration Statements and the Final Prospectus
and related matters were discussed and, although such counsel is not passing
upon and does not assume any responsibility for the accuracy, completeness or
fairness of the statements contained in the Registration Statements and the
Final Prospectus (except for those made under the captions "Description of
Securities" in the Registration Statements and "Description of [Notes]" and
"Plan of Distribution" in the Final Prospectus, insofar as they relate to the
provisions of documents therein described) and on the basis of the foregoing
(relying as to materiality to a large extent upon the opinions of officers and
other representatives of the Company), no facts have come to the attention of
such counsel in the course of their representation of the Company that have
led them to believe that either a Registration Statement or any amendment
thereto at the time such Registration Statement or amendment became effective
and at the Closing Date 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 the Final Prospectus, as
amended or supplemented as of the Closing Date, contained an untrue statement
of a material fact or omitted to state a material fact necessary in order to
make the statements therein, in light of the circumstances under which they
were made, not misleading (it being understood that such counsel need express
no opinion or belief with respect to the financial statements, financial
schedules and other financial and statistical data included in the
Registration Statements, Final Prospectus or any amendment or supplement
thereto).
In rendering such opinion, such counsel may rely (A) as to matters involving
the application of laws of any jurisdiction other than the State of Oregon or
the United States, to the extent deemed proper and specified in such opinion,
upon the opinion of other counsel of good standing believed to be reliable and
who are satisfactory to the Representatives, and (B) as to matters of fact, to
the extent deemed proper, on certificates of responsible officers of the
Company and public officials.
(c) The Representatives shall have received from Sullivan & Cromwell,
counsel for the Underwriters, such opinion or opinions, dated as of the
Closing Date, with respect to the issuance and sale of the Securities, the
Indenture, any Delayed Delivery Contracts, the Registration Statements, the
Final Prospectus and other related matters as the
Exhibit 1.1
-7-
<PAGE>
Representatives may reasonably require, and the Company shall have furnished
to such counsel such documents as they may reasonably request for the purpose
of enabling them to pass upon such matters. In rendering such opinion, such
counsel may rely as to the incorporation of the Company and all matters
governed by Oregon law, upon the opinion referred to in Section 5(b) above.
(d) The Company shall have furnished to the Representatives a certificate
of the Company, signed by the President and Chief Executive Officer or an
Executive Vice President and the principal financial or accounting officer of
the Company, dated as of the Closing Date, to the effect that the signers of
such certificate have carefully examined the Registration Statements, the
Final Prospectus and this Agreement and that, to the best of the signers'
knowledge, after reasonable investigation:
(i) the representations and warranties of the Company in this Agreement
are true and correct on and as of the Closing Date with the same effect as
if made on the Closing Date and the Company has complied with all the
agreements and satisfied all the conditions on its part to be performed or
satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of a Registration
Statement has been issued and no proceedings for that purpose have been
instituted or threatened; and
(iii) since the date of the most recent financial statements included or
incorporated in the Final Prospectus, there has been no material adverse
change in the condition (financial or other), earnings, business or
properties of the Company and its subsidiaries (taken as a whole), whether
or not arising from transactions in the ordinary course of business, except
as set forth or contemplated in the Final Prospectus.
(e) At the Closing Date, KPMG Peat Marwick LLP shall have furnished to the
Representatives a letter or letters (which may refer to letters previously
delivered to one or more of the Representatives), dated as of the Closing
Date, confirming that they are independent accountants within the meaning of
the Act and the Exchange Act and the applicable published rules and
regulations thereunder and that the response, if any, to Item 10 of the
Registration Statements is correct insofar as it relates to them and stating
in effect that:
(i) in their opinion the audited financial statements and financial
statement schedules included or incorporated in the Registration Statements
and the Final Prospectus and reported on by them comply as to form in all
material respects with the applicable accounting requirements of the Act
and the Exchange Act and the published rules and regulations thereunder
with respect to financial statements and financial statement schedules;
Exhibit 1.1
-8-
<PAGE>
(ii) on the basis of a reading of the latest unaudited financial
statements made available by the Company and its subsidiaries, carrying out
certain specified procedures (but not an examination in accordance with
generally accepted auditing standards) which would not necessarily reveal
matters of significance with respect to the items set forth in such letter,
a reading of the minutes of the meetings of the shareholders, directors and
executive committee of the Company, and inquiries of certain officials of
the Company who have responsibility for financial and accounting matters of
the Company and its subsidiaries as to transactions and events subsequent
to the date of the most recent audited financial statements incorporated in
the Registration Statements and the Final Prospectus, nothing came to their
attention which caused them to believe:
(1) the unaudited financial statements included in the Company's
quarterly reports on Form 10-Q incorporated by reference in the
Registration Statements and the Final Prospectus, if any, do not comply
as to form in all material respects with the accounting requirements of
the Exchange Act and the published rules and regulations thereunder
applicable to Form 10-Q or are not fairly presented in conformity with
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements incorporated in
the Registration Statements and the Final Prospectus (except as to
matters of presentation and disclosure as permitted by Form 10-Q); or
(2) the amounts in the "Selected Consolidated Financial Data"
included or incorporated in the Registration Statements and the Final
Prospectus do not agree with the corresponding amounts in the financial
statements from which such amounts were derived or were not determined on
a basis substantially consistent with that of the audited financial
statements included or incorporated in the Registration Statements and
the Final Prospectus or do not agree with the accounting records of the
Company and its subsidiaries; or
(3) with respect to the period subsequent to the date of the most
recent financial statements incorporated in the Registration Statements
and the Final Prospectus, at a specified date not more than five business
days prior to the date of the letter there were any changes in the
capital stock (other than as a result of awards or amortization of
restricted stock and the exercise of stock options granted under employee
stock option plans of the Company), long-term debt or short-term debt of
the Company and its consolidated subsidiaries (other than the increase
described under the caption ["Recent Timberland Acquisition"] in the
Basic Prospectus and other changes which in the aggregate do not exceed 5
percent of the sum of the long-term debt and short-term debt of the
Company and its consolidated subsidiaries as shown on the most recent
balance sheet included or incorporated in the Registration Statements and
the Final
Exhibit 1.1
-9-
<PAGE>
Prospectus), or as of the date of the latest available consolidated
balance sheet read by such accountants there were any decreases in net
current assets or net assets of the Company and its consolidated
subsidiaries, in each case as compared with the corresponding amounts
shown on the most recent consolidated balance sheet included or
incorporated in the Registration Statements and the Final Prospectus, or
for the period from the date of the most recent financial statements
incorporated in the Registration Statements and the Final Prospectus to
the date of the latest available consolidated income statement read by
such accountants there were any decreases, as compared with the
corresponding period in the preceding year, in consolidated net sales,
net operating income, the ratio of earnings to fixed charges or the total
or per share amounts of income before extraordinary items or of net
income, except in all instances for changes or decreases set forth in
such letter, in which case the letter shall be accompanied by an
explanation by the Company as to the significance thereof unless said
explanation is not deemed necessary by the Representatives; and
(iii) they have performed certain other specified procedures as a result
of which they determined that certain information identified in Schedule I
of an accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the general
accounting records of the Company) included or incorporated in the
Registration Statements and the Final Prospectus as amended or
supplemented, agrees with the accounting records of the Company and its
subsidiaries, excluding any questions of legal interpretation; and
(iv) if unaudited pro forma financial statements are included or
incorporated in the Registration Statements and the Final Prospectus, on
the basis of a reading of the unaudited pro forma financial statements,
carrying out certain specified procedures, inquiries of certain officials
of the Company and the acquired company who have responsibility for
financial and accounting matters, and proving the arithmetic accuracy of
the application of the pro forma adjustments to the historical amounts in
the pro forma financial statements, nothing came to their attention which
caused them to believe that the pro forma financial statements do not
comply in form in all material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that the pro forma
adjustments have not been properly applied to the historical amounts in the
compilation of such statements.
In addition, promptly following the execution of this Agreement and before the
filing of the Final Prospectus, KPMG Peat Marwick LLP shall have furnished to
the Representatives a letter or letters (which may refer to one or more
letters previously delivered to the Representatives), dated as of the date of
this Agreement, in form and substance satisfactory to the Representatives, to
the effect set forth in the introductory
Exhibit 1.1
-10-
<PAGE>
paragraph to this paragraph (e), and, to the extent referring to
information included or incorporated in the Registration Statements as
amended or supplemented to the date of such letter, to the effect set forth
in subparagraphs (i), (ii) and (iii) of this paragraph.
(f) Subsequent to the date of this Agreement, there shall not have occurred
(i) any change, or any development involving a prospective change, in or
affecting particularly the business or properties of the Company or its
subsidiaries which, in the judgment of the Representatives, materially impairs
the investment quality of the Securities or (ii) any downgrading in the rating
of the Company's debt securities by any "nationally recognized statistical
rating organization" as defined in Rule 436(g) under the Act, or any notice
given by any such organization that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's debt
securities, except for any such downgrading or notice given by Fitch Investors
Service, L.P.
(g) The Company shall have accepted Delayed Delivery Contracts in any case
where sales of Contract Securities arranged by the Underwriters have been
approved by the Company.
If any of the conditions specified in this Section 5 shall not have been
fulfilled in all material respects when and as provided in this Agreement, or if
any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Representatives, this Agreement and all obligations of the
Underwriters hereunder may be cancelled at, or at any time prior to, the Closing
Date by the Representatives. Notice of such cancellation shall be given to the
Company in writing or by telephone confirmed in writing.
6. Indemnification and Contribution.
--------------------------------
(a) The Company agrees to indemnify and hold harmless each Underwriter and
each person, if any, who controls any Underwriter within the meaning of the
Act against any and all losses, claims, damages or liabilities, joint or
several, to which any such Underwriter or controlling person may become
subject under the Act, the Exchange Act or other Federal or state statutory
law or regulation, at common law or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are
based upon any untrue statement or alleged untrue statement of a material fact
contained in a Registration Statement or in any amendment thereof, or in the
Basic Prospectus or the Final Prospectus, or in any amendment thereof 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, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by it in connection with investigating or
defending any such loss, claim, damage, liability or action; provided,
---------
however, that (i) the Company will 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 any such untrue statement or alleged
Exhibit 1.1
-11-
<PAGE>
untrue statement or omission or alleged omission made therein in reliance upon
and in conformity with written information furnished to the Company by or on
behalf of any Underwriter through the Representatives specifically for use in
connection with the preparation thereof, and (ii) such indemnity with respect
to the Basic Prospectus shall not inure to the benefit of any Underwriter (or
any person controlling such Underwriter) from whom the person asserting any
such loss, claim, damage or liability purchased the Securities if it shall be
established that such person did not receive a copy of the Final Prospectus,
excluding documents incorporated therein by reference, at or prior to the
confirmation of the sale of such Securities to such person in any case where
such delivery is required by the Act and the untrue statement or omission or
the alleged untrue statement or omission of material fact was corrected in the
Final Prospectus. This indemnity agreement will be in addition to any
liability which the Company may otherwise have.
(b) Each Underwriter severally agrees to indemnify and hold harmless the
Company, each of its directors, each of its officers who signed a Registration
Statement, and each person, if any, who controls the Company within the
meaning of the Act, to the same extent as the foregoing indemnity from the
Company to each Underwriter, but only with reference to written information
furnished to the Company by or on behalf of such Underwriter through the
Representatives specifically for use in the preparation of the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under this Section 6 of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this Section 6, notify the indemnifying party in writing of the commencement
thereof; but the omission so to notify the indemnifying party will not relieve
the indemnifying party from any liability which it may have to any indemnified
party otherwise than under this Section 6. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein, and to the extent that it may elect by written notice delivered to
the indemnified party promptly after receiving the aforesaid notice from such
indemnified party, jointly with any other indemnifying party, to assume the
defense thereof with counsel reasonably satisfactory to the indemnified party;
provided, however, that if the defendants in any such action include both the
-----------------
indemnified party and the indemnifying party, and the indemnified party shall
have reasonably concluded that there may be legal defenses available to it
and/or other indemnified parties that are different from or additional to
those available to the indemnifying party, the indemnified party or parties
shall have the right to select separate counsel to assert such legal defenses
and to otherwise participate in the defense of such action on behalf of such
indemnified party or parties. Upon receipt of notice from the indemnifying
party to such indemnified party of its election so to assume the defense of
such action and approval by the indemnified party of counsel, the indemnifying
party will not be liable to such indemnified party under this Section 6 for
any legal or other expenses subsequently incurred by such indemnified
Exhibit 1.1
-12-
<PAGE>
party unless (i) the indemnified party shall have employed separate counsel in
connection with the assertion of legal defenses in accordance with the proviso
to the next preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the expenses of more than one
separate counsel, approved by the Representatives in the case of paragraph (a)
of this Section 6, representing the indemnified parties under such paragraph
(a) who are parties to such action), (ii) the indemnifying party shall not
have employed counsel reasonably satisfactory to the indemnified party to
represent the indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party; and except that, if clause (i) or (iii) is applicable,
such liability shall be only in respect of the counsel referred to in such
clause (i) or (iii). An indemnifying party shall not be liable for any claim
or action settled without its consent.
(d) If the indemnification provided for in this Section 6 shall for any
reason (other than as specified herein) be unavailable to an indemnified party
under Section 6(a) or 6(b) in respect of any loss, claim, damage or liability,
or action in respect thereof, referred to therein, then each indemnifying
party will contribute to the amount paid or payable by such indemnified party
as a result of such loss, claim, damage or liability, or action in respect
thereof, in such proportion as shall be appropriate to reflect the relative
benefits received by the parties from the offering of the Securities, the
relative fault of the parties with respect to the statements or omissions
which resulted in such loss, claim, damage or liability, or action 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 with respect to such offering shall be determined in light of the
relation of the total net proceeds from the offering of the Securities (before
deducting expenses) received by the Company to the total discounts or
commissions received by the Underwriters with respect to such offering. The
Company and the Underwriters agree that it would not be just and equitable if
contributions pursuant to this Section 6(d) were to be determined by pro rata
allocation or by any other method of allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations referred to
herein. The amount paid or payable by an indemnified party as a result of the
loss, claim, damage or liability, or action in respect thereof, referred to
above in this Section 6(d) shall be deemed to include, for purposes of this
Section 6(d), 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 Section 6(d), each
Underwriter shall not be required to contribute any amount in excess of the
amount by which the total discount or commission it received on the Securities
exceeds the amount of any damages which it shall have otherwise paid or become
liable to pay by reason of any 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 misrepresentation. The
Underwriters' obligations to contribute are several and not joint.
Exhibit 1.1
-13-
<PAGE>
7. Default by an Underwriter. If any one or more Underwriters shall fail
-------------------------
to purchase and pay for any of the Securities agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the Representatives may make arrangements satisfactory to the Company
for the purchase of such Securities by other persons (including any of the
Underwriters) but if no arrangements are made by the Closing Date the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the amount of Securities set forth opposite their
names in Schedule II hereto bear to the aggregate amount of Securities set
opposite the names of all the remaining Underwriters) the Securities which the
defaulting Underwriter or Underwriters agreed but failed to purchase; provided,
---------
however, that in the event the aggregate amount of Securities which the
- -------
defaulting Underwriter or Underwriters agreed but failed to purchase shall
exceed 10 percent of the aggregate amount of Securities set forth in Schedule II
hereto, the Representatives may make arrangements satisfactory to the Company
for the purchase of such Securities by other persons (including any of the
Underwriters) but if no arrangements are made by the Closing Date the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Securities, and if such nondefaulting
Underwriters do not purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Company. In the event
of a default by any Underwriter as set forth in this Section 7, the Closing Date
shall be postponed for such period, not exceeding seven days, as the
Representatives shall determine in order that the required changes in the
Registration Statements and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder. As
used in this Agreement, the term "Underwriter" includes any person substituted
for an Underwriter pursuant to this Section 7.
8. Representations and Indemnities to Survive. The respective agreements,
------------------------------------------
representations, warranties, indemnities and other statements of the Company or
its officers and of the several Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation or statements as to the results thereof made by or on behalf of
any Underwriter or the Company or any of the officers, directors or controlling
persons referred to in Section 6 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 4(g) and 6 hereof shall
survive the termination or cancellation of this Agreement.
9. Termination. This Agreement shall be subject to termination in the
-----------
absolute discretion of the Representatives, by notice given to the Company prior
to delivery of and payment for the Securities, if prior to such time (i) trading
in securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange, (ii)
trading in any securities of the Company in the over-the-counter market shall
have been suspended or (iii) a banking moratorium shall have been declared
either by Federal, New York State or Oregon State authorities, or (iv) there
shall have occurred any outbreak or material escalation of hostilities or other
calamity or crisis the effect of which on the
Exhibit 1.1
-14-
<PAGE>
financial markets of the United States is such as to make it, in the judgment of
the Representatives, impracticable to market the Securities.
10. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to the Representatives or the
Underwriters, will be mailed or delivered to the Representatives, at the address
specified in Schedule I hereto (except that any notice to an Underwriter
pursuant to Section 6 hereof shall be sent to it at its address specified in
Schedule II hereof); or, if sent to the Company, will be mailed or delivered to
it at 1300 S. W. Fifth Avenue, Suite 3800, Portland, Oregon 97201, Attention:
Secretary.
11. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto and their respective successors and, to the
extent provided in Section 6 hereof, to the benefit of the officers and
directors and controlling persons referred to in Section 6 hereof, and no other
person will have any right or obligation hereunder. The term "successor" shall
not include any purchaser as such purchaser of any of the Securities from any
Underwriter.
12. Representation of Underwriters. The Representatives will act for the
------------------------------
several Underwriters in connection with this financing, and any action under
this Agreement taken by them will be binding upon all the Underwriters.
13. Other. Additional terms and conditions, if any, relating to the
-----
transactions herein contemplated may be set forth in Schedule I.
Exhibit 1.1
-15-
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
letter and your acceptance shall represent a binding agreement among the Company
and the several Underwriters.
Very truly yours,
WILLAMETTE INDUSTRIES, INC.
By:______________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
[Name of Representative]
By:__________________________________
Name:
Title:
For themselves and the other several Underwriters, if any, named in Schedule II
to the foregoing Agreement.
Exhibit 1.1
-16-
<PAGE>
SCHEDULE I
----------
Underwriting Agreement dated:
Name(s) and address(es) of Representative(s):
Title, purchase price and description of Securities:
Title:
Principal amount:
Purchase price (include accrued
interest or amortization if
applicable):
Sinking fund provisions:
Redemption provisions:
Other provisions:
Closing Date, time and location:
Funds for payment of purchase price:
Delayed delivery arrangements:
Fee:
Minimum principal amount of each contract:
Maximum aggregate principal amount of all contracts:
<PAGE>
Jurisdictions in which Securities shall be qualified:
Additional terms and conditions:
Additional information covered by accountants' letter:
<PAGE>
SCHEDULE II
<TABLE>
<CAPTION>
Principal amount
of Securities to
Underwriter Address be purchased
----------- ------- -------------------------
<S> <C> <C>
$
-------------
Total $
</TABLE>
<PAGE>
SCHEDULE III
Delayed Delivery Contract
_____________, 19__
Willamette Industries, Inc.
1300 S. W. Fifth Avenue, Suite 3800
Portland, Oregon 97201
Dear Sirs:
The undersigned hereby agrees to purchase from Willamette Industries, Inc.
(the "Company"), and the Company agrees to sell to the undersigned, as of the
date hereof, for delivery on ____________, 19__, (the "Delivery Date"),
$______________ in principal amount of the Company's
____________________________________ (the "Securities") offered by the Company's
prospectus dated ____________________, 19__, as supplemented
___________________, 19__ (the "Final Prospectus"), receipt of a copy of which
is hereby acknowledged, at a purchase price of _____ percent of the principal
amount thereof, plus accrued interest, if any, thereon from _________, 19__, to
the date of payment and delivery, and on the further terms and conditions set
forth in this contract.
Payment for the Securities to be purchased by the undersigned shall be made
on or before _____________________________ on the Delivery Date to or upon the
order of the Company in ________________________ funds, at
_________________________ or at such other place as shall be agreed between the
Company and the undersigned upon delivery to the undersigned of the Securities
in definitive form and in such authorized denominations and registered in such
names as the undersigned may request by written notice delivered to the Company
not less than five full business days prior to the Delivery Date. If no request
is received, the Securities will be registered in the name of the undersigned
and issued in a denomination equal to the aggregate principal amount of
Securities to be purchased by the undersigned on the Delivery Date.
The obligation of the undersigned to take delivery of and make payment for
Securities on the Delivery Date, and the obligation of the Company to sell and
deliver Securities on the Delivery Date, shall be subject to the conditions (and
neither party shall incur any liability by reason of the failure thereof) that
(1) the purchase of Securities to be made by the undersigned, which purchase the
undersigned represents is not prohibited on the date hereof, shall not on the
Delivery Date be prohibited under the laws of the jurisdiction to which the
undersigned is subject, and (2) the Company, on or before the Delivery Date,
shall have sold to certain underwriters (the "Underwriters") such principal
amount of the Securities as is to be sold to them pursuant to the Underwriting
Agreement referred to in the Final Prospectus mentioned above, less any
Securities sold pursuant to delayed delivery contracts. Promptly after
completion of such sale to the Underwriters, the Company will mail or deliver to
the undersigned at its address set forth below notice to such effect,
accompanied by a copy of the opinion of counsel for the Company delivered to the
Underwriters in connection therewith. The obligation of the undersigned to take
delivery of and make payment for the Securities, and the obligation of the
Company to cause the Securities to be sold and delivered, shall not be affected
<PAGE>
by the failure of any purchaser to take delivery of and make payment for the
Securities pursuant to other contracts similar to this contract.
This contract will inure to the benefit of and be binding upon the parties
hereto and their respective successors, but will not be assignable by either
party hereto without the written consent of the other.
It is understood that acceptance of this contract and other similar
contracts is in the Company's sole discretion and, without limiting the
foregoing, need not be on a first come, first served basis. If this contract is
acceptable to the Company, it is requested that the Company sign the form of
acceptance below and mail or deliver one of the counterparts hereof to the
undersigned at its address set forth below. This will become a binding contract
between the Company and the undersigned, as of the date first above written,
when such counterpart is so mailed or delivered.
Very truly yours,
______________________________________
(Name of Purchaser)
By____________________________________
(Signature and Title of Officer)
______________________________________
(Address)
______________________________________
(Taxpayer Identification Number)
Accepted:
Willamette Industries, Inc.
By _______________________________
(Authorized Signature)
-21-
<PAGE>
WILLAMETTE INDUSTRIES, INC.
$____________
MEDIUM-TERM NOTES, SERIES __
DUE FROM NINE MONTHS TO THIRTY YEARS
FROM DATE OF ISSUE
DISTRIBUTION AGREEMENT
_____________, 199__
___________________________
___________________________
___________________________
___________________________
___________________________
___________________________
Dear Sirs:
Willamette Industries, Inc., an Oregon corporation (the "Company"),
confirms its agreement with each of you (individually, an "Agent", and
collectively, the "Agents") with respect to the issue and sale by the Company of
up to $____________ aggregate principal amount of its Medium-Term Notes, Series
__ (the "Notes"), due from nine months to thirty years from date of issue. The
Notes will be issued under an indenture dated as of January 30, 1993 (the
"Indenture"), between the Company and The Chase Manhattan Bank (National
Association), as trustee (the "Trustee"). The Notes will be issued in minimum
denominations of $1,000 and in denominations exceeding such amount by integral
multiples of $1,000, will be issued only in fully registered form, and will have
the maturities, annual interest rates (whether fixed or floating), redemption
provisions and other terms set forth in a pricing supplement (the "Pricing
Supplement") to the Prospectus referred to below. The Notes will be issued, and
the terms thereof established, in accordance with the Indenture and the Medium-
Term Note Administrative Procedures attached hereto as Exhibit A (the
"Procedures") (unless a Terms Agreement (as defined in Section 2(b)) modifies or
otherwise supersedes the Procedures with respect to the Notes issued pursuant to
such Terms Agreement). The Procedures may only be amended by written agreement
of the Company
Exhibit 1.2
-1-
<PAGE>
and each Agent after notice to, and in the case of amendments that affect the
rights, duties or obligations of the Trustee, with the approval of, the Trustee.
1. Representations and Warranties. The Company represents and
------------------------------
warrants to, and agrees with, each Agent that:
(a) The Company meets the requirements for use of Form S-3 under
the Securities Act of 1933 (the "Act") and the rules and regulations
under the Act of the Securities and Exchange Commission (the
"Commission") and has filed with the Commission registration
statements on such Form (File No. 33-____________ (the "1996
Registration Statement") and (File No. 33-53263), which have become
effective for the registration under the Act of an aggregate of
$400,000,000 aggregate principal amount of senior debt securities
(including the Notes) (the "Securities"). Each such registration
statement, as it may be amended or supplemented, meets the
requirements set forth in Rule 415(a) under the Act and complies in
all other material respects with said Rule. In connection with the
offering and sale of Notes, the Company proposes to file with the
Commission pursuant to Rule 424 under the Act a supplement to the form
of combined prospectus included in the 1996 Registration Statement
relating to the Notes and the plan of distribution thereof and has
previously advised the Agents of all further information (financial
and other) with respect to the Company to be set forth therein. Such
registration statements, including the exhibits thereto, as amended to
the date of this Agreement, are hereinafter individually called a
"Registration Statement" and collectively called the "Registration
Statements; such combined prospectus, as supplemented pursuant to the
previous sentence, is hereinafter called the "Prospectus." Any
reference herein to the Registration Statements 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 that were filed
under the Securities Exchange Act of 1934 (the "Exchange Act") on or
before the date of this Agreement or the date of the Prospectus, as
the case may be; and any reference herein to the terms "amend",
"amendment" or "supplement" with respect to the Registration
Statements or the Prospectus shall be deemed to refer to and include
the filing of any document under the Exchange Act after the date of
this Agreement or the date of the Prospectus, as the case may be,
deemed to be incorporated therein by reference.
(b) As of the date hereof, when any amendment to a Registration
Statement becomes effective (including the date of the filing of any
document incorporated by reference in such Registration Statement),
when any supplement to the Prospectus is filed with the Commission, as
of the date of any Terms Agreement (as defined by Section 2) and at
the date of delivery by the Company of any Notes sold hereunder (a
"Settlement Date"), (i) such Registration Statement, as amended as of
any such time, and the Prospectus,
Exhibit 1.2
-2-
<PAGE>
as supplemented as of any such time, and the Indenture complied and
will comply in all material respects with the applicable requirements
of the Act, the Trust Indenture Act of 1939 (the "Trust Indenture
Act") and the Exchange Act and the respective rules and regulations
thereunder and (ii) neither such Registration Statement, as amended as
of any such time, nor the Prospectus, as supplemented as of any such
time, contained or will contain any untrue statement of a material
fact or omitted or will omit to state any material fact required to be
stated therein or necessary in order to make the statements therein
not misleading; provided, however, that the Company makes no
-------- -------
representations or warranties as to (i) that part of such Registration
Statement that shall constitute the Statement of Eligibility (Form T-
1) under the Trust Indenture Act of the Trustee or (ii) the
information contained in or omitted from such Registration Statement
or the Prospectus or any amendment thereof or supplement thereto in
reliance upon and in conformity with information furnished in writing
to the Company by any Agent specifically for use in connection with
the preparation of such Registration Statement and the Prospectus or
any amendment thereof or supplement thereto.
(c) As of the time any Notes are issued and sold hereunder, the
Indenture will constitute a legal, valid and binding instrument
enforceable against the Company in accordance with its terms and such
Notes will have been duly authorized, executed, authenticated and,
when paid for by the purchasers thereof, will constitute legal, valid
and binding obligations of the Company entitled to the benefits of the
Indenture.
2. Appointment of Agents; Solicitations by the Agents of Offers to
---------------------------------------------------------------
Purchase; Sales of Notes to a Purchaser.
- ---------------------------------------
(a) Subject to the terms and conditions set forth herein, and to the
reservation by the Company of the right to sell Notes at any time directly to
investors on its own behalf or to one or more underwriters, the Company hereby
authorizes each Agent to act as agent of the Company to solicit offers for the
purchase of all or part of the Notes from the Company.
On the basis of the representations and warranties and subject to the
terms and conditions set forth herein, each of the Agents agrees, as agent of
the Company, to use its reasonable efforts to solicit offers to purchase the
Notes from the Company upon the terms and conditions set forth in the Prospectus
as amended or supplemented and in the Procedures.
The Company reserves the right in its sole discretion to instruct the
Agents to suspend at any time, for any period of time or permanently, the
solicitation of offers to purchase the Notes. Upon receipt of instructions from
the Company, the Agents will
Exhibit 1.2
-3-
<PAGE>
forthwith suspend solicitation of offers to purchase Notes from the Company
until such time as the Company has advised them that such solicitation may be
resumed.
The Company agrees to pay each Agent a commission which may be in the
form of a discount in U.S. dollars, at the time of settlement of each sale of
Notes by the Company as a result of a solicitation made by such Agent, in an
amount equal to that percentage specified in Schedule I hereto of the aggregate
principal amount of the Notes sold by the Company. Such commission shall be
payable as specified in the Procedures.
Subject to the provisions of this section and to the Procedures,
offers for the purchase of Notes may be solicited by each Agent as agent for the
Company at such time and in such amounts as such Agent deems advisable;
provided, however, that so long as this Agreement shall be in effect, and except
- -------- -------
that the Company may sell Notes at any time directly to investors on its own
behalf or to one or more underwriters, the Company shall not solicit or accept
offers to purchase Notes through any agents other than the Agents. Nothing in
this Agreement shall limit the Company's right to authorize, issue, solicit, or
accept offers to purchase its debt securities, including medium-term notes,
other than the Notes.
Notwithstanding anything to the contrary contained herein, the Company
may authorize any other person, partnership or corporation (an "Additional
Agent") to act as its agent to solicit offers for the purchase of all or part of
the Notes of the Company. The appointment of an Additional Agent shall be
effected by the Company's addition of the name and address of the Additional
Agent to the signature page of a counterpart of this Agreement, the execution of
such counterpart by the Additional Agent, and the delivery of executed copies of
such counterpart to each of the Agents and their counsel. Thereafter the term
"Agent" as used in this Agreement shall mean the Agents and such Additional
Agent. At such time, the Additional Agent shall specify its requirements for
the delivery of certificates, letters and opinions as are set forth in Section
5.
(b) Subject to the terms and conditions stated herein, the Company agrees
that, whenever the Company determines to sell Notes directly to any Agent as
principal for resale to others, it will enter into a separate agreement relating
to such sale in accordance with the provisions of this Section 2(b). For the
purposes of this Agreement, the term "Agent" shall refer to each of you acting
solely in the capacity as agent for the Company hereunder and not as principal;
the term "Purchaser" shall refer to each of you acting solely as principal
hereunder and not as agent, and the term "you" shall refer to each of you acting
in both such capacities or in either such capacity.
Each sale of Notes to a Purchaser shall be made in accordance with the
terms of this Agreement and a supplemental agreement relating to such sale.
Each such supplemental agreement (which may either be an oral agreement
confirmed in writing or a written agreement substantially in the form of Exhibit
B hereto and which may be effected through an exchange by facsimile transmission
of an agreement between the Purchaser and the Company) is hereby referred to as
a "Terms Agreement". A Purchaser's commitment to
Exhibit 1.2
-4-
<PAGE>
purchase Notes shall be deemed to have been made on the basis of the
representations and warranties of the Company herein contained and shall be
subject to the terms and conditions herein set forth. Each Terms Agreement
shall describe the Notes to be purchased by the Purchaser pursuant thereto,
specify the principal amount of such Notes, the maturity date of such Notes, the
price to be paid to the Company for such Notes, the rate at which interest will
be paid on the Notes, whether such rate of interest shall be fixed or floating
and, if floating, the basis for determining such rate and the dates on which
interest shall be paid, the closing date, time and location for delivery of the
Notes and payment therefor (which date and time are referred to herein as the
"Closing Date"), the type of funds for payment and any requirements for the
delivery of the opinion of counsel, the certificates from the Company or its
officers, or the letter from KPMG Peat Marwick LLP pursuant to Section 6(b).
Any such Terms Agreement may also specify the period of time referred to in
Section 4(l).
Delivery of the certificates for Notes sold to a Purchaser pursuant to
any Terms Agreement shall be made as agreed to between the Company and the
Purchaser as set forth in the Procedures unless otherwise set forth in such
Terms Agreement, not later than the Closing Date set forth in such Terms
Agreement, against payment to the Company of the net amount due to the Company
for such Notes in the type of funds set forth in such Terms Agreement.
Unless otherwise agreed to between the Company and the Purchaser in a
Terms Agreement, any Notes sold to a Purchaser may be resold by such Purchaser
at varying prices from time to time or, if set forth in the applicable Terms
Agreement and Pricing Supplement, at a fixed public offering price. In
connection with any resale of Notes purchased, a Purchaser may use a selling or
dealer group and may reallow to any broker or dealer any portion of the discount
or commission payable pursuant hereto.
3. Offering Procedure.
------------------
(a) Unless otherwise agreed between the Company and each Agent, each
Agent shall communicate to the Company, orally or in writing, each offer to
purchase Notes received by such Agent (unless such offer is rejected by such
Agent in accordance herewith) on terms previously communicated by the Company to
such Agent, and unless otherwise agreed between the Company and each Agent in
writing, the Company shall have the sole right to accept such offers to purchase
Notes and may, in its absolute discretion, refuse any proposed purchase of Notes
in whole or in part for any reason.
(b) Unless otherwise agreed between the Company and each Agent, each
Agent shall have the right, in its discretion reasonably exercised, to reject
any proposed purchase of Notes, in whole or in part, and any such rejection
shall not be deemed a breach of its agreement contained herein. Each Agent and
the Company agree to perform the respective duties and obligations specifically
provided to be performed by them in the Procedures.
Exhibit 1.2
-5-
<PAGE>
4. Agreements. The Company agrees with each Agent that:
----------
(a) Prior to the termination of the offering of the Notes (including
by way of resale by a Purchaser of Notes), the Company will not file any
amendment to the Registration Statements or supplement to the Prospectus (other
than (1) by a supplement to the Prospectus (A) relating to an offering of
securities other than the Notes, (B) relating to any offering of Notes by the
Company directly to investors or to underwriters other than such Agent or (C)
providing solely for the specification of the terms of a Note or Notes
(excluding any change in the formula by which interest rates on the Notes may be
determined) or (2) unless requested by such Agent, in connection with the filing
of a document under Section 14 of the Exchange Act) unless the Company has
furnished to such Agent a copy for its review prior to filing and will not file
any such proposed amendment or supplement to which such Agent may reasonably
object. With respect to any Notes to be sold to or through an Agent pursuant to
this Agreement, the Company will prepare a Pricing Supplement with respect to
such Notes in a form previously approved by such Agent. Subject to the
foregoing, the Company will cause each supplement to the Prospectus to be filed
(or transmitted for filing) with the Commission as required pursuant to Rule
424. The Company will promptly advise such Agent (i) when each supplement to
the Prospectus shall have been filed (or transmitted for filing) with the
Commission pursuant to Rule 424, (ii) when any amendment of such Registration
Statement shall have been filed or become effective, (iii) of any request by the
Commission for any amendment of a Registration Statement or supplement to the
Prospectus or for any additional information, (iv) of the issuance by the
Commission of any stop order suspending the effectiveness of a Registration
Statement or the institution or threatening of any proceeding for that purpose
and (v) of the receipt by the Company of any notification with respect to the
suspension of the qualification of the Notes for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose. During any period
during which a prospectus relating to the Notes is required to be delivered
under the Act, the Company will (i) use its best efforts to prevent the issuance
of any such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof, and (ii) file within the prescribed time periods all reports
and any definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to sections 13(a), 13(c), 14 or 15(d) of
the Exchange Act. In addition, on the date on which the Company makes any
announcement to the general public concerning earnings or concerning any other
event which is required to be described, or which the Company proposes to
describe, in a document filed pursuant to the Exchange Act, the Company will
furnish to such Agent the information contained in such announcement. The
Company also will furnish to such Agent copies of all material press releases or
announcements furnished to news or wire services or otherwise released to the
general public. The Company will immediately notify such Agent of (i) any
decrease in the rating of the Notes or any other debt securities of the Company
by any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or (ii) any notice given of any intended
or potential decrease in any such rating or of a possible change in any such
rating that does not indicate the direction of the possible change, as soon as
the Company learns of any such decrease or notice.
Exhibit 1.2
-6-
<PAGE>
(b) If, during any period in which a prospectus relating to the Notes
is required to be delivered under the Act, any event occurs as a result of which
the Registration Statements, as then amended, or the Prospectus, as then
supplemented, would include any untrue statement of a material fact or omit to
state any material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, any facts or events
arise which, individually or in the aggregate, would represent a fundamental
change in the information set forth or in a Registration Statement or the
Prospectus, or if, during any such period, it shall be necessary to amend a
Registration Statement or to supplement the Prospectus to comply with the Act or
the Exchange Act or the respective rules and regulations thereunder, the Company
promptly will (i) notify such Agent to suspend the solicitation of offers to
purchase Notes (and, if so notified by the Company, such Agent shall forthwith
suspend such solicitation and cease using the Prospectus as then supplemented),
(ii) prepare and file with the Commission, subject to the first sentence of
paragraph (a) of this Section 4, an amendment or supplement that will correct
such statement or omission or an amendment or supplement that will effect such
compliance and (iii) will supply any such amended Registration Statement or
supplemented Prospectus to such Agent in such quantities as such Agent may
reasonably request. If such amendment or supplement, and any documents,
certificates and opinions furnished to such Agent pursuant to paragraph (f) of
this Section 4 in connection with the preparation or filing of such amendment or
supplement are reasonably satisfactory in all respects to such Agent, such Agent
will, upon the filing of such amendment or supplement with the Commission and
upon the effectiveness of an amendment to a Registration Statement if such an
amendment is required, resume such Agent's obligation to solicit offers to
purchase Notes hereunder.
(c) As soon as practicable after any Settlement Date and after any
Closing Date, but in any event not later than the Applicable Release Date (as
defined below), the Company will make generally available to its security
holders and to such Agents an earnings statement or statements covering a period
of at least 12 months beginning after the Applicable Effective Date (as defined
below) that will satisfy the provisions of Section 11(a) of the Act and Rule 158
under the Act. For the purpose of the preceding sentence, "Applicable Effective
Date" means the latest of (i) the effective date of the Registration Statement
last declared effective relating to the Notes, (ii) the effective date of the
most recent post-effective amendment to a Registration Statement filed for a
purpose specified in paragraph (c)(2) of Rule 158 under the Act to become
effective prior to such Settlement Date or Closing Date and (iii) the date of
filing of the Company's most recent annual report on Form 10-K filed with the
Commission prior to such Settlement Date or Closing Date, and "Applicable
Release Date" means (i) the 45th day after the end of the fourth fiscal quarter
following the fiscal quarter that includes the Applicable Effective Date or (ii)
if such fourth fiscal quarter is the last quarter of the Company's fiscal year,
the 90th day after the end of such fourth fiscal quarter.
(d) The Company will furnish to such Agent and to its counsel,
without charge, (i) copies of each Registration Statement (including exhibits
thereto) and each amendment thereto that shall become effective and, so long as
delivery of a prospectus may
Exhibit 1.2
-7-
<PAGE>
be required by the Act, as many copies of the Prospectus and any supplements
thereto as such Agent may reasonably request, (ii) copies of all reports or
other communications (financial or other) furnished to shareholders, and (iii)
copies of any reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class of securities
of the Company is listed.
(e) The Company will use its best efforts to arrange for the
qualification of the Notes for sale under the laws of such domestic
jurisdictions as such Agent may reasonably designate, will maintain such
qualifications in effect so long as required for the distribution of the Notes,
and will arrange for the determination of the legality of the Notes for purchase
by institutional investors; provided, however, that the Company shall not be
-------- -------
required to qualify to do business in any jurisdiction where it is not now
qualified or to take any action which would subject it to general or unlimited
service of process in any jurisdiction where it is not now subject to such
service of process.
(f) The Company shall furnish to such Agent and counsel for such
Agent, such certificates of officers of the Company and opinions of counsel for
the Company relating to the business, operations and affairs of the Company,
each Registration Statement, the Prospectus, and any amendments or supplements
thereto, the Indenture, the Notes, this Agreement, the Procedures and the
performance by the Company of its obligations hereunder and thereunder as such
Agent may from time to time, and at any time prior to the termination of this
Agreement, reasonably request.
(g) The Company shall, whether or not any sale of the Notes is
consummated, (i) pay all expenses incident to the performance of its obligations
under this Agreement and any Terms Agreement, including the fees and
disbursements of its accountants and counsel, the cost of printing (or otherwise
producing) and delivery of the Registration Statements, the Prospectus, all
amendments thereof and supplements thereto, the Indenture, this Agreement and
all other documents relating to the offering, the cost of preparing, printing
(or otherwise producing), packaging and delivering the Notes, the fees and
disbursements, including fees of counsel, incurred in connection with the
qualification of the Notes for sale and determination of eligibility for
investment of the Notes under the securities or Blue Sky laws of each such
domestic jurisdiction as such Agent may reasonably designate, the fees and
disbursements of the Trustee and any Calculation Agent (as such term is used in
the Prospectus, as supplemented, relating to the Notes) and the fees of any
agency that rates the Notes, (ii) reimburse such Agent on a monthly basis for
all out-of-pocket expenses incurred by such Agent and approved by the Company in
advance, in connection with the offering and the sale of the Notes, and (iii) be
responsible for the reasonable fees and disbursements of such Agent's counsel
incurred heretofore or hereafter in connection with the offering and sale of the
Notes.
(h) Each acceptance by the Company of an offer to purchase Notes will
be deemed to be an affirmation that the representations and warranties of the
Company in Section l are true and correct at the time of such acceptance, as
though made at and as of
Exhibit 1.2
-8-
<PAGE>
such time, and a covenant that such representations and warranties will be true
and correct at the time of delivery to the purchaser of the Notes relating to
such acceptance, as though made at and as of such time (it being understood that
for purposes of the foregoing affirmation and covenant such representations and
warranties shall relate to the Registration Statements and Prospectus as amended
or supplemented at each such time). Each such acceptance by the Company of an
offer for the purchase of Notes shall be deemed to constitute an additional
representation, warranty and agreement by the Company that, as of the Settlement
Date for the sale of such Notes, after giving effect to the issuance of such
Notes and of any other Securities to be issued and sold by the Company on or
prior to such Settlement Date, the aggregate amount of Securities (including any
Notes) which have been issued and sold by the Company will not exceed the amount
of Securities registered pursuant to the Registration Statements. The Company
will inform such Agent promptly upon its request of the aggregate amount of
Securities registered under the Registration Statements which remain unsold.
(i) Each time that a Registration Statement or the Prospectus is
amended or supplemented (other than (1) by a supplement to the Prospectus (A)
relating to an offering of securities other than the Notes, (B) relating to any
offering of Notes by the Company directly to investors or to one or more
underwriters other than such Agent or (C) providing solely for the specification
of the terms of a Note or Notes (excluding any change in the formula by which
interest rates on the Notes may be determined) or (2) unless requested by such
Agent, in connection with the filing of a document under Section 14 of the
Exchange Act), the Company will deliver or cause to be delivered forthwith to
such Agent a certificate of the Company signed by the President and Chief
Executive Officer or an Executive Vice President and the principal financial or
accounting officer of the Company, dated the date of the effectiveness of such
amendment or the date of filing of such supplement, in form reasonably
satisfactory to such Agent, to the effect that the statements contained in the
certificate that was last furnished to such Agent pursuant to Section 5(d) are
true and correct at the time of the effectiveness of such amendment or the
filing of such supplement as though made at and as of such time (except that (i)
the last day of the fiscal quarter for which financial statements of the Company
were last filed with the Commission shall be substituted for the corresponding
date in such certificate and (ii) such statements shall be deemed to relate to
each Registration Statement and the Prospectus as amended and supplemented to
the time of the effectiveness of such amendment or the filing of such
supplement) or, in lieu of such certificate, a certificate of the same tenor as
the certificate referred to in Section 5(d), but modified to relate to the
representations and warranties of the Company as if made on the date of such
certificate and to relate to the last day of the fiscal quarter for which
financial statements of the Company were last filed with the Commission and to
the Registration Statements and the Prospectus as amended and supplemented to
the time of the effectiveness of such amendment or the filing of such
supplement.
(j) Each time that a Registration Statement or the Prospectus is
amended or supplemented (other than (1) by a supplement to the Prospectus (A)
relating to an offering of securities other than the Notes, (B) relating to any
offering of Notes by the Company directly
Exhibit 1.2
-9-
<PAGE>
to investors or to one or more underwriters other than such Agent or (C)
providing solely for the specification of the terms of a Note or Notes
(excluding any change in the formula by which interest rates on the Notes may be
determined) or (2) unless requested by such Agent, in connection with the filing
of a document under Section 14 of the Exchange Act), the Company shall furnish
or cause to be furnished forthwith to such Agent a written opinion of counsel of
the Company satisfactory to such Agent, dated the date of the effectiveness of
such amendment or the date of filing of such supplement, in form satisfactory to
such Agent, of the same tenor as the opinions referred to in Section 5(b) but
modified to relate to the Registration Statements and the Prospectus as amended
and supplemented to the time of the effectiveness of such amendment or the
filing of such supplement and with the statement required by the penultimate
paragraph of Section 5(b) modified to reflect such counsel's actual
participation or, in lieu of such an opinion, counsel last furnishing an opinion
to such Agent may furnish a letter to the effect that such Agent may rely on
such last opinion to the same extent as though it were dated the date of such
letter authorizing reliance (except that statements in such last opinion will be
deemed to relate to the Registration Statements and the Prospectus as amended
and supplemented to the time of the effectiveness of such amendment or the
filing of such supplement).
(k) Each time that a Registration Statement or the Prospectus is
amended or supplemented to set forth amended or supplemental financial
information or such amended or supplemental information is incorporated by
reference in a Registration Statement or the Prospectus, the Company shall cause
KPMG Peat Marwick LLP, its independent auditors, forthwith to furnish such Agent
a letter, dated the date of the effectiveness of such amendment or the date of
filing of such supplement, in form satisfactory to such Agent, of the same tenor
as the letter referred to in Section 5(e) with such changes as may be necessary
to reflect the amended and supplemental financial information included or
incorporated by reference in such Registration Statement and the Prospectus, as
amended or supplemented to the date of such letter; provided, however, that if a
Registration Statement or Prospectus is amended or supplemented to include
financial information as of and for a fiscal quarter, KPMG Peat Marwick LLP may
limit the scope of such letter by not making the statements required by Section
5(e)(ii)(3), unless, in the reasonable judgment of such Agent, such letter
should make such statements.
(l) During the period, if any, specified in any Terms Agreement
(whether orally or in writing), the Company shall not, without the prior consent
of the Purchaser thereunder, offer, sell or contract to sell, or otherwise
dispose of, directly or indirectly, or announce the offering of, any debt
securities issued or guaranteed by the Company (other than the Notes being sold
pursuant to such Terms Agreement, commercial paper and debt securities
evidencing borrowings from banks).
(m) The Company confirms as of the date hereof, and each acceptance
by the Company of an offer to purchase Notes will be deemed to be affirmation,
that the Company is in compliance with all provisions of Section 1 of Laws of
Florida, Chapter 92-198, An Act Relating to Disclosure of Doing Business with
----------------------------------------------------
Cuba (Section 517.075, Florida Securities and
- ----
Exhibit 1.2
-10-
<PAGE>
Investor Protection Act), and the Company further agrees that if it commences
engaging in business with the government of Cuba or with any person or affiliate
located in Cuba after the date a Registration Statement becomes or has become
effective with the Commission or with the Florida Department of Banking and
Finance (the "Department"), whichever date is later, or if the information
reported in the Prospectus, if any, concerning the Company's business with Cuba
or with any person or affiliate located in Cuba changes in any material way, the
Company will provide the Department notice if then required of such business or
change, as appropriate, in a form acceptable to the Department.
5. Conditions to the Obligations of the Agents. The obligations of
-------------------------------------------
any Agent to solicit offers to purchase the Notes shall be subject to the
accuracy of the representations and warranties on the part of the Company
contained herein as of the date hereof, as of the date of the effectiveness of
any amendment to a Registration Statement (including the date of the filing of
any document incorporated by reference therein), as of the date any supplement
to the Prospectus is filed with the Commission and as of each Settlement Date,
to the accuracy of the statements of the Company made in any certificates
pursuant to the provisions hereof, to the performance by the Company of its
obligations hereunder and to the following additional conditions:
(a) If filing of the Prospectus, or any supplement thereto, is
required pursuant to Rule 424(b), the Prospectus, and any such
supplement, shall have been filed in the manner and within the time
period required by Rule 424(b); no stop order suspending the
effectiveness of a Registration Statement, as amended from time to
time, shall have been issued, and no proceedings for that purpose
shall have been instituted or threatened; and all requests for
additional information on the part of the Commission shall have been
complied with to the reasonable satisfaction of such Agent.
(b) The Company shall have furnished to such Agent the opinion
or opinions of Miller, Nash, Wiener, Hager & Carlsen LLP, counsel to
the Company, dated the date hereof to the effect that:
(i) the Company has been duly incorporated and is validly
existing as a corporation under the laws of the state of Oregon,
with full corporate power and authority to own its properties and
conduct its business as described in the Prospectus;
(ii) the establishment of the series constituting the Notes
has been duly authorized and, when the terms of a particular Note
have been duly established in conformity with the Indenture and
such Note has been executed and authenticated in accordance with
the provisions of the Indenture and delivered to and paid for by
the purchaser thereof in accordance with this Agreement, such
Note will constitute a legal, valid
Exhibit 1.2
-11-
<PAGE>
and binding obligation of the Company entitled to the benefits
provided by the Indenture;
(iii) each Registration Statement and any amendments thereto
have become effective under the Act; to the knowledge of such
counsel, no stop order suspending the effectiveness of such
Registration Statement or any part thereof has been issued and no
proceedings for that purpose have been instituted or threatened
or are contemplated by the Commission under the Act, and each
Registration Statement and the Prospectus and any amendment or
supplement thereto (as of their respective effective or issue
dates) complied as to form in all material respects with the
applicable requirements of the Act, the Exchange Act, the Trust
Indenture Act, and the respective rules and regulations
thereunder; the descriptions in the Registration Statements and
the Prospectus of the Notes, of the Indenture, and of statutes,
legal and governmental proceedings and contracts fairly present
the information required to be shown; and to the knowledge of
such counsel there are no legal or governmental proceedings
required to be described in the Prospectus that are not described
as required, nor are there any contracts or documents of a
character required to be described in the Registration Statements
or the Prospectus or to be filed as exhibits to the Registration
Statements that are not described or filed as required; it being
understood that such counsel need express no opinion as to the
financial statements, financial schedules or other financial and
statistical data contained in the Registration Statements, the
Prospectus or any amendment or supplement thereto;
(iv) the Indenture has been duly authorized, executed and
delivered by the Company, has been duly qualified under the Trust
Indenture Act and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its
terms (subject to applicable bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium or other laws affecting
creditors' rights generally and to general equitable principles);
(v) this Agreement and the Terms Agreement (if applicable)
have been duly authorized, executed, and delivered by the
Company; and
(vi) no consent, approval, authorization or order of any
United States or Oregon court or governmental agency or body is
required for the consummation of the transactions contemplated
herein except such as have been obtained under the Act and such
as may be required under the blue sky laws of any jurisdiction in
connection with the sale of the
Exhibit 1.2
-12-
<PAGE>
Notes as contemplated by this Agreement and such other approvals
(specified in such opinion) as have been obtained.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of
the Company, representatives of the independent public accountants for
the Company, representatives of the Agents, and counsel for the
Agents, as applicable, at which the contents of the Registration
Statements and Prospectus and related matters were discussed and,
although such counsel is not passing upon and does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statements and Prospectus
(except for those made under the captions "Description of Securities"
in the Registration Statements and "Description of Notes" and "Plan of
Distribution" in any prospectus supplement, insofar as they relate to
the provisions of documents therein described) and on the basis of the
foregoing (relying as to materiality to a large extent upon the
opinions of officers and other representatives of the Company), no
facts have come to the attention of such counsel in the course of
their representation of the Company that have led them to believe that
either a Registration Statement or any amendment thereto at the time
such Registration Statement or amendment became effective and at the
date of this Agreement 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 the
Prospectus, as of the date of this Agreement, contained an untrue
statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading (it being
understood that such counsel need express no opinion or belief with
respect to the financial statements, financial schedules and other
financial and statistical data included in the Registration
Statements, Prospectus or any amendment or supplement thereto).
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other
than the state of Oregon or the United States, to the extent deemed
proper and specified in such opinion, upon the opinion of other
counsel of good standing believed to be reliable and who are
satisfactory to such Agent, and (B) as to matters of fact, to the
extent deemed proper, on certificates of responsible officers of the
Company and public officials, and may assume the due authorization,
execution and delivery of the Indenture by the Trustee.
(c) Such Agent shall have received from Sullivan & Cromwell, counsel
for the Agents, such opinion or opinions, dated the date hereof, with
respect to the issuance and sale of the Notes, the Indenture, the
Registration Statements, the Prospectus and other related matters as such
Agent may
Exhibit 1.2
-13-
<PAGE>
reasonably require, and the Company shall have furnished to such
counsel such documents as they may reasonably request for the purpose
of enabling them to pass upon such matters. In rendering such opinion,
such counsel may rely, as to the incorporation of the Company and all
matters governed by Oregon law, on the opinion referred to in Section
5(b) above.
(d) The Company shall have furnished to such Agent a certificate
of the Company, signed by the President and Chief Executive Officer or
an Executive Vice President and the principal financial or accounting
officer of the Company, dated the date hereof, to the effect that the
signers of such certificate have carefully examined the Registration
Statements, the Prospectus and this Agreement and that, to the best of
the signers' knowledge, after reasonable investigation:
(i) the representations and warranties of the Company in
this Agreement are true and correct in all material respects on
and as of the date hereof with the same effect as if made on the
date hereof, and the Company has complied with all the agreements
and satisfied all the conditions on its part to be performed or
satisfied as a condition to the obligation of the Agent to
solicit offers to purchase the Notes;
(ii) no stop order suspending the effectiveness of a Registration
Statement has been issued and no proceedings for that purpose have
been instituted or threatened; and
(iii) since the date of the most recent financial statements
included or incorporated in the Prospectus, there has been no material
adverse change in the condition (financial or other), earnings,
business or properties of the Company and its subsidiaries (taken as a
whole), whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the
Prospectus.
(e) On the date hereof, KPMG Peat Marwick LLP shall have
furnished to such Agent a letter or letters (which may refer to
letters previously delivered to such Agent), dated as of the date
hereof, confirming that they are independent accountants within the
meaning of the Act and the Exchange Act and the respective applicable
published rules and regulations thereunder and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated in the
Registration Statements and the Prospectus and reported on by
them comply as to form in all material respects with the
applicable accounting requirements of the Act and the Exchange
Act and the related published
Exhibit 1.2
-14-
<PAGE>
rules and regulations thereunder with respect to financial
statements and financial statement schedules;
(ii) on the basis of a reading of the latest unaudited
consolidated financial statements made available by the Company
and its subsidiaries; carrying out certain specified procedures
(but not an examination in accordance with generally accepted
auditing standards) that would not necessarily reveal matters of
significance with respect to the comments set forth in such
letter; a reading of the minutes of the meetings of the
shareholders, directors, and executive committee of the Company;
and inquiries of certain officials of the Company and its
subsidiaries who have responsibility for financial and accounting
matters of the Company and its subsidiaries as to transactions
and events subsequent to the date of the most recent audited
financial statements included or incorporated in the Registration
Statements and Prospectus, nothing came to their attention which
caused them to believe that:
(1) the unaudited financial statements
included in the Company's quarterly reports on Form
10-Q incorporated by reference in the Registration
Statements and the Prospectus, if any, do not
comply as to form in all material respects with the
accounting requirements of the Exchange Act and the
published rules and regulations thereunder
applicable to Form 10-Q or are not fairly presented
in conformity with generally accepted accounting
principles applied on a basis substantially
consistent with that of the audited financial
statements incorporated in the Registration
Statements and the Prospectus (except as to matters
of presentation and disclosure as permitted by Form
10-Q); or
(2) the amounts in the "Selected Consolidated
Financial Data" included or incorporated in the
Registration Statements and the Prospectus do not
agree with the corresponding amounts in the
financial statements from which such amounts were
derived or were not determined on a basis
substantially consistent with that of the audited
financial statements included or incorporated in
the Registration Statements and the Prospectus or
do not
Exhibit 1.2
-15-
<PAGE>
agree with the accounting records of the Company
and its subsidiaries; or
(3) with respect to the period subsequent to
the date of the most recent financial statements
incorporated in the Registration Statements and the
Prospectus, at a specified date not more than five
business days prior to the date of the letter there
were any changes in the capital stock (other than
as a result of awards or amortization of restricted
stock and the exercise of options granted under
employee stock option plans of the Company), or
increases in long-term debt or short-term debt of
the Company and its consolidated subsidiaries
(other than the increase described under the
caption ["RECENT TIMBERLAND ACQUISITION"] in the
Prospectus and other increases which in the
aggregate do not exceed 5 percent of the sum of the
long-term debt and short-term debt of the Company
and its consolidated subsidiaries as shown on the
most recent balance sheet included or incorporated
in the Registration Statements and the Prospectus),
or there were any decreases in net current assets
or net assets of the Company and its consolidated
subsidiaries, in each case as compared with the
corresponding amounts shown on the most recent
consolidated balance sheet included or incorporated
in the Registration Statements and the Prospectus,
or for the period from the date of the most recent
financial statements incorporated in the
Registration Statements and the Prospectus to such
specified date there were any decreases, as
compared with the corresponding period in the
preceding year, in consolidated net sales, net
operating income, or the total or per share amounts
of income before extraordinary items or of net
income, except in all instances for changes or
decreases set forth in such letter, in which case
the letter shall be accompanied by an explanation
by the Company as to the significance thereof
unless said explanation is not deemed necessary by
such Agent; and
(iii) they have performed certain other specified
procedures as a result of which they determined that
certain
Exhibit 1.2
-16-
<PAGE>
information of an accounting, financial or statistical
nature (which is limited to accounting, financial or
statistical information derived from the general
accounting records of the Company) included or
incorporated in the Registration Statements and the
Prospectus as amended or supplemented, agrees with the
accounting records of the Company and its subsidiaries,
excluding any questions of legal interpretation; and
(iv) if unaudited pro forma financial statements
are included or incorporated in the Registration
Statements and the Prospectus, on the basis of a
reading of the unaudited pro forma financial
statements, carrying out certain specified procedures,
inquiries of certain officials of the Company and the
acquired company who have responsibility for financial
and accounting matters, and proving the arithmetic
accuracy of the application of the pro forma
adjustments to the historical amounts in the pro forma
financial statements, nothing came to their attention
which caused them to believe that the pro forma
financial statements do not comply in form in all
material respects with the applicable accounting
requirements of Rule 11-02 of Regulation S-X or that
the pro forma adjustments have not been properly
applied to the historical amounts in the compilation of
such statements.
References to the Registration Statements and the Prospectus in this
paragraph (e) are to such documents as amended and supplemented at the date
of the letter.
(f) Subsequent to the respective dates as of which information
is given in the Registration Statements and the Prospectus (as amended
or supplemented) there shall not have occurred any change, or any
development involving a prospective change, in or affecting
particularly the business or properties of the Company and its
subsidiaries taken as a whole which is, in the judgment of such Agent,
after discussions with the Company, so material and adverse as to make
it impractical or inadvisable to proceed with the soliciting of offers
to purchase or delivery of the Notes as contemplated by the
Registration Statements and the Prospectus (or, in the case of a Terms
Agreement, to proceed with the offering or the delivery of the Notes
to be purchased as contemplated by the Terms Agreement).
(g) Subsequent to the execution of this Agreement there shall
not have occurred any downgrading in the rating of the Company's debt
securities by any "nationally recognized statistical rating
organization", as defined for the purposes of Rule 436(g) under the
Act, or any notice given by any such organization that it has under
surveillance or review, with possible negative
Exhibit 1.2
-17-
<PAGE>
implications, its rating of any of the Company's debt
securities, except for any such downgrading or notice given
by Fitch Investors Service, L.P.
(f) Subsequent to the execution of this Agreement,
there shall not have occurred any outbreak or material
escalation of hostilities involving the United States or the
declaration by the United States of a national emergency or
war or the occurrence of any other calamity or crisis if the
effect on the financial markets is such as to make it, in
the judgment of such Agent, impracticable or inadvisable to
proceed with the solicitation of offers to purchase or
delivery of Notes as contemplated by the Registration
Statements and the Prospectus (or, in the case of a Term
Agreement, to proceed with the offering and delivery of the
Notes to be purchased as contemplated by the Terms
Agreement).
(g) Subsequent to the execution of this Agreement (i)
trading in securities generally, or in the securities of the
Company, on the New York Stock Exchange shall not have been
suspended or limited nor shall minimum prices have been
established on such exchange, (ii) trading in any securities
of the Company in the over-the-counter market shall not have
been suspended, (iii) a banking moratorium shall not have
been declared by federal, New York State, or Oregon State
authorities.
(h) Prior to the date hereof, the Company shall have
furnished to such Agent such further information,
certificates and documents as such Agent may reasonably
request.
If any of the conditions specified in this Section 5 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to such Agent, this Agreement and all obligations of such Agent
hereunder may be canceled at any time by such Agent. Notice of such
cancellation shall be given to the Company in writing or by telephone confirmed
in writing.
The documents required to be delivered by this Section 5 shall be
delivered at the office of Sullivan & Cromwell, counsel for the Agents, at 125
Broad Street, New York, New York 10004, on the date hereof.
The obligation of the Agents to continue to solicit offers to purchase
the Notes after the date of any amendment to a Registration Statement or
supplement to the Prospectus shall also be subject to the condition that the
Agents shall be entitled to receive, if any Agent so requests, an opinion of
Sullivan & Cromwell, dated the date of such amendment or supplement, to the
effect set forth in paragraph (c) above.
Exhibit 1.2
-18-
<PAGE>
6. Conditions to the Obligations of a Purchaser. The obligations of
--------------------------------------------
a Purchaser to purchase Notes pursuant to any Terms Agreement will be subject to
the accuracy of the representations and warranties on the part of the Company
herein as of the date hereof, as of the date of the respective Terms Agreement
and as of the Closing Date thereunder, to the performance and observance by the
Company of all covenants and agreements herein contained on its part to be
performed and observed and to the following additional conditions precedent:
(a) With respect to any Notes sold at such Closing, the
Prospectus as amended or supplemented (including the Pricing
Supplement) with respect to such Notes shall have been filed with the
Commission pursuant to Rule 424(b) under the Act within the applicable
time period prescribed for such filing by the rules and regulations
under the Act and in accordance with Section 4(a) hereof; no stop
order suspending the effectiveness of a Registration Statement 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 the reasonable satisfaction of the Purchaser.
(b) Except to the extent modified by the applicable Terms
Agreement, the Purchaser shall have received, appropriately updated in
a manner consistent with Section 5 hereof, (i) a certificate of the
Company, dated as of the Closing Date, to the effect set forth in
Section 5(d), (ii) the opinion or opinions of Miller, Nash, Wiener,
Hager & Carlsen LLP, counsel to the Company, dated as of the Closing
Date, to the effect set forth in Section 5(b), (iii) the opinion or
opinions of Sullivan & Cromwell, counsel for the Purchaser, dated as
of the Closing Date, to the effect set forth in Section 5(c), and (iv)
the letter of KPMG Peat Marwick LLP, dated as of the Closing Date, to
the effect set forth in Section 5(e).
(c) The conditions set forth in Sections 5(f), 5(g), 5(h), and
5(i) shall have been satisfied, but in each case only with respect to
the period commencing on the date of the applicable Terms Agreement
and events which occurred prior to such date shall be disregarded.
(d) Prior to the Closing Date, the Company shall have furnished
to the Purchaser such further information, certificates and documents
as the Purchaser may reasonably request.
If any of the conditions specified in this Section 6 shall not have
been fulfilled in all material respects when and as provided in this Agreement,
or if any of the opinions and certificates mentioned above or elsewhere in this
Agreement shall not be in all material respects reasonably satisfactory in form
and substance to the Purchaser, this Agreement and all obligations of the
Purchaser hereunder may be canceled at, or at any time prior to, the
Exhibit 1.2
-19-
<PAGE>
respective Closing Date by the Purchaser. Notice of such cancellation shall be
given to the company in writing or by telephone or telegraph confirmed in
writing.
7. Right of Person Who Agreed to Purchase to Refuse to Purchase. The
------------------------------------------------------------
Company agrees that any person who has agreed to purchase and pay for any Note
pursuant to a solicitation by any of the Agents shall have the right to refuse
to purchase such Note if, at the Settlement Date therefor, any condition set
forth in paragraphs (f), (g), (h) or (i) of Section 5 shall not be satisfied
because an event specified in said paragraphs shall have occurred subsequent to
the agreement to purchase such Note, the effect of which event is in the
judgment of the Agent which presented the offer to purchase such Note, so
material and adverse as to make it impractical or inadvisable to proceed with
the sale and delivery of such Note (it being understood that under no
circumstance shall any such Agent have any duty or obligation to the Company or
to any such person to exercise the judgment permitted to be exercised under this
Section 7).
8. Indemnification and Contribution.
--------------------------------
(a) The Company agrees to indemnify and hold harmless each
Agent, the directors, officers, employees and agents of each Agent,
and each person who controls each Agent within the meaning of the Act,
if any, against any and all losses, claims, damages or liabilities,
joint or several, to which any such Agent, director, officer,
employee, agent, or controlling person may become subject under the
Act, the Exchange Act or other Federal or state statutory law or
regulation, at common law or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in a Registration Statement for
the registration of the Notes as originally filed or in any amendment
thereof, or in the Prospectus or any preliminary Prospectus, or in any
amendment thereof 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, and agrees to reimburse each such indemnified
party, as incurred, for any legal or other expenses reasonably
incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that
-------- -------
(i) the Company will 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 any such untrue statement or alleged untrue statement or omission
or alleged omission made therein in reliance upon and in conformity
with written information furnished to the Company by or on behalf of
any of you specifically for inclusion therein, and (ii) such indemnity
with respect to any preliminary Prospectus or the Prospectus shall not
inure to the benefit of any Agent (or any director, officer, employee,
agent of or person controlling such Agent) from whom the person
asserting any such loss, claim, damage or liability purchased the
Notes that are
Exhibit 1.2
-20-
<PAGE>
the subject thereof if it shall be established that such person did
not receive a copy of the Prospectus (in the case of such indemnity
with respect to any preliminary Prospectus) or the Prospectus as
amended or supplemented (in the case of such indemnity with respect to
the Prospectus), excluding documents incorporated therein by
reference, at or prior to the confirmation of the sale of such Notes
to such person in any case where such delivery is required by the Act
and the untrue statement or omission or the alleged untrue statement
or omission in any preliminary Prospectus was corrected in the
Prospectus or in the Prospectus was corrected in the Prospectus as
amended or supplemented. This indemnity agreement will be in addition
to any liability that the Company may otherwise have.
(b) Each Agent severally agrees to indemnify and hold harmless
the Company, each of its directors, each of its officers who sign a
Registration Statement, and each person, if any, who controls the
Company within the meaning of the Act, to the same extent as the
foregoing indemnity from the Company to you, but only with reference
to written information relating to you furnished to the Company by or
on your behalf specifically for inclusion in the documents referred to
in the foregoing indemnity. This indemnity agreement will be in
addition to any liability that you may otherwise have.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such
indemnified party will, if a claim in respect thereof is to be made
against the indemnifying party under this Section 8, notify the
indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve the
indemnifying party from any liability which it may have to any
indemnified party otherwise than under this Section 8. In case any
such action is brought against any indemnified party, and it notifies
the indemnifying party of the commencement thereof, the indemnifying
party will be entitled to participate therein, and to the extent that
it may elect by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified
party, jointly with any other indemnifying party, to assume the
defense thereof, with counsel reasonably satisfactory to such
indemnified party; provided, however, that if the defendants in any
-------- -------
such action include both the indemnified party and the indemnifying
party, and the indemnified party shall have reasonably concluded that
there may be legal defenses available to it and/or other indemnified
parties that are different from or additional to those available to
the indemnifying party, the indemnified party or parties shall have
the right to select separate counsel to assert such legal defenses and
to otherwise participate in the defense of such action on behalf of
such indemnified party or parties. Upon receipt of notice from the
indemnifying party to such indemnified party of its election so to
assume the defense of such action and approval by the indemnified
party of counsel, the
Exhibit 1.2
-21-
<PAGE>
indemnifying party will not be liable to such indemnified party under
this Section 8 for any legal or other expenses subsequently incurred
by such indemnified party in connection with the defense thereof,
unless (i) the indemnified party shall have employed separate counsel
in connection with the assertion of legal defenses in accordance with
the proviso to the next preceding sentence (it being understood,
however, that the indemnifying party shall not be liable for the
expenses of more than one separate counsel, approved by the Agents in
the case of paragraph (a) of this Section 8, representing the
indemnified parties under such paragraph (a) who are parties to such
action), (ii) the indemnifying party shall not have employed counsel
reasonably satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of
commencement of the action or (iii) the indemnifying party has
authorized the employment of counsel for the indemnified party at the
expense of the indemnifying party; and except that, if clause (i) or
(iii) is applicable, such liability shall be only in respect of the
counsel referred to in such clause (i) or (iii). An indemnifying party
shall not be liable for any claim or action settled without its
consent.
(d) If the indemnification provided for in this Section 8 shall
for any reason (other than as specified herein) be unavailable to or
insufficient to hold harmless an indemnified party under Section 8(a)
or 8(b) above in respect of any loss, claim, damage or liability (or
action in respect thereof) referred to therein, then each indemnifying
party shall contribute to the amount paid or payable ("Losses") to
such indemnified party as a result of such loss, claim, damage, or
liability (or action in respect thereof) in such proportion as is
appropriate to reflect the relative benefits received by the Company
and each of you from the offering of the Notes from which such Losses
arise and the relative fault of the parties with respect to the
statements or omissions which resulted in such Losses, as well as any
other relevant equitable considerations. The relative benefits
received by the Company on the one hand and each Agent on the other
with respect to such offering shall be determined in light of the
relation of the total net proceeds received by the Company from the
sale (before deducting expenses) of the Notes from which such Losses
arise to the total commissions or discounts received by each Agent
with respect to the sale of the Notes from which such Losses arise.
The Company and each Agent agree that it would not be just and
equitable if contributions pursuant to this Section 8(d) were
determined by pro rata allocation (even if the Agents were treated as
one entity for such purpose) or by any other method of allocation
which does not take into account the equitable considerations referred
to herein. The amount paid or payable by an indemnified party as a
result of the loss, claim, damage, or liability (or action in respect
thereof) referred to above in this Section 8(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
Exhibit 1.2
-22-
<PAGE>
Section 8(d), no Agent shall be required to contribute any amount in
excess of the amount by which the total commission or discount it
received on Notes sold by it exceeds the amount of any damages which
such Agent has otherwise paid or become liable 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
misrepresentation. The obligations of the Agents in this Section 8(d)
to contribute are several and not joint. For purposes of this Section
8, each person who controls any of you within the meaning of the Act
or the Exchange Act and each director, officer, employee and agent of
any of you shall have the same rights to contribution as you and each
person who controls the Company within the meaning of either the Act
or the Exchange Act, each officer of the Company who shall have signed
the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case
to the applicable terms and conditions of this Section 8(d).
9. Termination. This Agreement may be terminated by either the
-----------
Company or any Agent (as to such Agent) by such party giving written notice of
such termination to the other party or parties hereto. This Agreement shall so
terminate at the close of business on the first business day following the
receipt of such notice by the party or parties to whom such notice is given.
This Agreement may be terminated as to one or more of the Agents, and to the
extent not terminated with respect to any Agent, this Agreement shall remain in
full force and effect as between the Company and any such Agent. In the event
of such termination, no party shall have any liability to the other party
hereto, except as provided in the fourth paragraph of Section 2(a), Section
4(g), Section 8, Section 10 and Section 11. This Agreement will continue in
effect until terminated as provided in this Section 9.
10. Representations and Indemnities to Survive. The respective
------------------------------------------
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of each Agent set forth in or made pursuant to this
Agreement will remain in full force and effect, regardless of any investigation
made by or on behalf of such Agent or the Company or any of the officers,
directors or controlling persons referred to in Section 8 hereof, and will
survive delivery of and payment for the Notes. The provisions of Section 8
hereof shall survive the termination or cancellation of this Agreement. The
provisions of this Agreement (including without limitation Section 8 hereof)
applicable to any purchase of a Note for which an agreement to purchase exists
prior to the termination hereof shall survive any termination of this Agreement.
If at the time of termination of the Agreement any Purchaser shall own any Notes
with the intention of selling them, the provisions of Sections 4(b), 4(d) and
4(e) shall remain in effect until such Notes are sold by the Purchaser or until
the first anniversary of such termination, whichever shall first occur.
Exhibit 1.2
-23-
<PAGE>
11. Agents' Right to Commission Upon Default by the Company. Each
-------------------------------------------------------
Agent, in soliciting offers to purchase Notes from the Company and in performing
the other obligations of such Agent hereunder (other than in respect to any
purchase by an Agent as principal, pursuant to a Terms Agreement or otherwise),
is acting solely as agent for the Company and not as principal. Except as
provided in Section 2(b), under no circumstances will any Agent be obligated to
purchase any Notes for its own account. Each Agent will make reasonable efforts
to assist the Company in obtaining performance by each purchaser whose offer to
purchase Notes from the Company was solicited by such Agent and has been
accepted by the Company, but such Agent shall not have any liability to the
Company in the event such purchase is not consummated for any reason. If the
Company shall default on its obligation to deliver Notes to a purchaser whose
offer it has accepted, the Company shall (i) hold such Agent harmless against
any loss, claim or damage arising from or as a result of such default by the
Company and (ii) notwithstanding such default, pay to the Agent that solicited
such offer any commission to which it would be entitled in connection with such
sale.
12. Notices. All communications hereunder will be in writing and
-------
effective only on receipt, and, if sent to an Agent, will be mailed, delivered,
telexed or telecopied to such Agent, at the address specified below its
signature hereto; or, if sent to the Company, will be mailed or delivered,
telexed or telecopied to it at 1300 S.W. Fifth Avenue, Suite 3800, Portland,
Oregon 97201, Attention: Secretary.
13. Successors. This Agreement will inure to the benefit of and be
----------
binding upon the parties hereto, their respective successors, the directors,
officers, employees, agents and controlling persons referred to in Section 8
hereof and, to the extent permitted in Section 7, any person who has agreed to
purchase Notes, and no other person will have any right or obligation hereunder.
14. Time of the Essence; Business Day. Time shall be of the essence
---------------------------------
in this Agreement and any Terms Agreement. As used herein, the term "business
day" shall mean any day when the office of the Commission in Washington, D.C. is
normally open for business.
15. Applicable Law. This Agreement will be governed by and construed
--------------
in accordance with the laws of the state of New York.
16. Counterparts. This Agreement and any Terms Agreement may be
------------
executed by any one or more of the parties hereto and thereto in any number of
counterparts, each of which shall be an original, but all of such respective
counterparts shall together constitute one and the same instrument.
Exhibit 1.2
-24-
<PAGE>
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and the acceptance by each of you shall represent a binding
agreement among the Company and each of you.
Very truly yours,
WILLAMETTE INDUSTRIES, INC.
By: __________________________________
Name: J. A. Parsons
Title: Executive Vice President and
Chief Financial Officer
The foregoing Agreement is hereby
confirmed and accepted as of the
date hereof:
______________________________________
Name:
Title:
Exhibit 1.2
-25-
<PAGE>
SCHEDULE I
Distribution Agreement dated ________________, 199__
Unless otherwise agreed between the Company and such Agent, the
Company agrees to pay any Agent a commission equal to the following percentage
of the principal amount of each Note sold as a result of a solicitation made by
such Agent during the term of the Distribution Agreement:
<TABLE>
<CAPTION>
Term Commission Rate
---- ---------------
<S> <C>
From 9 months to less than 1 year .125%
From 1 year to less than 18 months .150%
From 18 months to less than 2 years .200%
From 2 years to less than 3 years .250%
From 3 years to less than 4 years .350%
From 4 years to less than 5 years .450%
From 5 years to less than 6 years .500%
From 6 years to less than 7 years .550%
From 7 years to less than 10 years .600%
From 10 years to less than 15 years .625%
From 15 years to less than 20 years .675%
From 20 years to 30 years .750%
</TABLE>
Exhibit 1.2
-26-
<PAGE>
*[Unless this certificate is presented by an authorized representative
of The Depository Trust Company, a New York corporation ("DTC"), to the Company
or its agent for registration of transfer, exchange, or payment, and any
certificate issued is registered in the name of Cede & Co. or to such other name
as is requested by an authorized representative of DTC), ANY TRANSFER, PLEDGE,
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
inasmuch as the registered owner hereof, Cede & Co., has an interest herein.]
Number $_________________
- ---------- CUSIP ___________________________
WILLAMETTE INDUSTRIES, INC.
_____% Note Due 19___
WILLAMETTE INDUSTRIES, INC., an Oregon corporation (herein called the
"Company," which term includes any successor corporation under the Indenture
referred to herein), for value received hereby promises to pay to:
-----------------------------------------------------------
or registered assigns, the principal sum of
____________________________________________________________ DOLLARS
on _____________, 19__, and to pay interest thereon from _____________, 19__, or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for semiannually on _____________ and _____________ in each year
commencing _____________, 19__, at the rate of ____% per annum (computed on the
basis of a 360-day year of twelve 30-day months) until the principal hereof is
paid or made available for payment. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
said Indenture, be paid to the Person in whose name this Note (or one or more
Predecessor Securities) is registered at the close of business on the Regular
Record Date for such interest, which shall be the _____________ or _____________
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Note (or one
or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice whereof shall be given to the Holder of this Note not less
than ten days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Notes may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of and interest on this Note will be made at
the office or agency of the Company maintained for that purpose in the Borough
of Manhattan, the City of New York, New York, in such coin or currency of the
United States as at the time of payment is legal tender for payment of public
and private debts, provided, however, that at the option of the Company payment
of interest may be made by check mailed to the address of the Person entitled
thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Note set
forth on the succeeding pages hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been manually
executed by the Trustee or Authenticating Agent referred to in said Indenture,
this Note shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Note to be duly
executed under its corporate seal.
Dated: WILLAMETTE INDUSTRIES, INC.
CERTIFICATE OF AUTHENTICATION By
This is one of the Securities of the
series designated herein referred to
in the within mentioned Indenture. President
THE CHASE MANHATTAN BANK
(National Association) as Trustee Attest:
[SEAL
APPEARS Secretary
HERE]
By
Authorized Officer
* The bracketed legend will appear only on certificates issued to the specified
holder.
Exhibit 4.2
-1-
<PAGE>
This Note is one of a duly authorized issue of Securities of the Company,
issued and to be issued in one or more series under an Indenture, dated as of
January 30, 1993 (herein called the "Indenture"), between the Company and The
Chase Manhattan Bank (National Association) (herein called the "Trustee," which
term includes any successor trustee under the Indenture), to which Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee and the Holders of the Securities and of the terms
upon which the Securities are, and are to be, authenticated and delivered. This
Note is one of the series of the Securities designated as the ____% Notes Due
19___ (herein called the "Notes"), limited in aggregate principal amount to
$_________________.
If an Event of Default with respect to the Notes shall occur and be
continuing, the principal of all the Notes may be declared due and payable in
the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series under the
Indenture to be affected at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of a majority in principal amount of the
Securities of each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Note shall
be conclusive and binding upon such Holder and upon all future Holders of this
Note and of any Note issued upon the registration of transfer hereof or in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Note.
No reference herein to the Indenture and no provision of this Note or of
the Indenture shall alter or impair the obligation of the Company, which is
absolute and unconditional, to pay the principal of and interest on this Note at
the times, place and rate, and in the coin or currency, herein prescribed;
subject, however, to the provisions for the discharge of the Company from its
obligation under the Notes upon satisfaction of the conditions set forth in the
Indenture.
As provided in the Indenture, the Company may elect to defease and (a) be
discharged from all obligations in respect of the Notes (except for certain
obligations to register the transfer or exchange of the Notes, to replace
mutilated, destroyed or stolen Notes, to maintain paying agencies and to hold
moneys in trust) or (b) be released from its obligations with respect to the
Notes under certain restrictive covenants of the Indenture, in each case if the
Company deposits, in trust, with the Trustee money and/or Government
Obligations, which through the payment of interest and principal thereon in
accordance with their terms will provide money sufficient, without reinvestment,
to pay the principal of and interest on the Notes. The Indenture provides that
such a trust may only be established if (i) no Event of Default or event which
with the giving of notice or lapse of time, or both, would become an Event of
Default with respect to the Notes shall have occurred and be continuing, (ii)
the Company shall have delivered an Opinion of Counsel to the effect that the
Holders will not recognize income, gain or loss for federal income tax purposes
as a result of such defeasance and will be subject to federal income tax on the
same amounts, in the same manner, and at the same times as if such defeasance
had not occurred, and (iii) certain other conditions are satisfied.
[This Note may not be redeemed at the option of the Company prior to
Stated Maturity.]
[or]
[This Note may be redeemed at the option of the Company on any date on or
after [DATE] upon mailing a notice of such redemption not less than 30 nor more
than 60 days prior to the date fixed for redemption to the Holder of this Note
at such Holder's address appearing in the Security Register, all as provided in
the Indenture, at a Redemption Price equal to ____% of the principal amount,
together with accrued interest to the date fixed for redemption. As provided in
the Indenture, if less than all of the Notes are to be redeemed, the Trustee
shall select by such method as the Trustee shall deem fair and appropriate, from
Notes that are subject to redemption pursuant to the terms thereof, the Note or
Notes, or portion or portions thereof, to be redeemed.]
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Note is registrable in the Security Register
upon surrender of this Note for registration of transfer at the office or agency
of the Company in any place where the principal of and interest on this Note are
payable, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Notes of authorized denominations, of like tenor and of like
aggregate principal amount will be issued to the designated transferee or
transferees.
The Notes are issuable only in registered form without coupons in
denominations of $1,000 and any amount in excess thereof which is an integral
multiple of $1,000. As provided in the Indenture and subject to certain
limitations therein set forth, at the option of the Holder, this Note may be
exchanged for other Notes of any authorized denomination, of like tenor and of
like aggregate principal amount, upon surrender of this Note.
This Note is a Global Note and shall be exchangeable for Notes registered
in the name of, and a transfer of this Global Note may be registered to, any
Person other than the Depository for this Global Note or its nominee only if
permitted by the Indenture.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
All terms used in this Note which are defined in the Indenture shall have
the meanings assigned to them in the Indenture.
Exhibit 4.2
-2-
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
- ------------------------------- --------------------------------------------
(Please print or typewrite name and
address including zip code of assignee)
- --------------------------------------------------------------------------------
the within Note and all rights thereunder, hereby irrevocably constituting and
appointing ________________________________________________ attorney, to
transfer said Note on the books of the Company, with full power of substitution
in the premises.
Dated:
---------------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as it appears
upon the face of the within Note in every
particular, without alteration or enlargement
or any change whatever.
Exhibit 4.2
-3-
<PAGE>
*[Unless this certificate is presented by an authorized
representative of The Depository Trust Company, a New York corporation ("DTC"),
to the Company or its agent for registration of transfer, exchange, or payment,
and any certificate issued is registered in the name of Cede & Co. or to such
other name as is requested by an authorized representative of DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL inasmuch as the registered owner hereof, Cede & Co., has an interest
herein.]
Number $_________________
- -------- CUSIP ___________________________
WILLAMETTE INDUSTRIES, INC.
_____% Debenture Due 20___
WILLAMETTE INDUSTRIES, INC., an Oregon corporation (herein called the
"Company," which term includes any successor corporation under the Indenture
referred to herein), for value received hereby promises to pay to:
-----------------------------------------------------------
or registered assigns, the principal sum of ________________ DOLLARS
on _____________, 20__, and to pay interest thereon from _____________, 19__, or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for semiannually on _____________ and _____________ in each year
commencing _____________, 19__, at the rate of ____% per annum (computed on the
basis of a 360-day year of twelve 30-day months) until the principal hereof is
paid or made available for payment. The interest so payable, and punctually
paid or duly provided for, on any Interest Payment Date will, as provided in
said Indenture, be paid to the Person in whose name this Debenture (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest, which shall be the _____________ or
_____________ (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Debenture (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice whereof shall be given to the Holder of this
Debenture not less than ten days prior to such Special Record Date, or be paid
at any time in any other lawful manner not inconsistent with the requirements of
any securities exchange on which the Debentures may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in said
Indenture.
Payment of the principal of and interest on this Debenture will be
made at the office or agency of the Company maintained for that purpose in the
Borough of Manhattan, the City of New York, New York, in such coin or currency
of the United States as at the time of payment is legal tender for payment of
public and private debts, provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register.
Reference is hereby made to the further provisions of this Debenture
set forth on the succeeding pages hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been manually
executed by the Trustee or Authenticating Agent referred to in said Indenture,
this Debenture shall not be entitled to any benefit under the Indenture or be
valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Debenture to be duly
executed under its corporate seal.
Dated: WILLAMETTE INDUSTRIES, INC.
CERTIFICATE OF AUTHENTICATION By
This is one of the Securities of the
series designated herein referred to
in the within mentioned Indenture. President
THE CHASE MANHATTAN BANK
(National Association) as Trustee Attest:
[SEAL
APPEARS Secretary
HERE]
By
Authorized Officer
* The bracketed legend will appear only on certificates issued to the specified
holder.
Exhibit 4.5
-1-
<PAGE>
This Debenture is one of a duly authorized issue of Securities of the
Company, issued and to be issued in one or more series under an Indenture, dated
as of January 30, 1993 (herein called the "Indenture"), between the Company and
The Chase Manhattan Bank (National Association) (herein called the "Trustee,"
which term includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights, duties and immunities
thereunder of the Company, the Trustee and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Debenture is one of the series of the Securities designated as
the ____% Debentures Due 20___ (herein called the "Debentures"), limited in
aggregate principal amount to $_________________.
[Subject to and upon compliance with the provisions set forth herein,
each Holder shall have the right, at such Holder's option, to require the
Company to repay, and if such right is exercised the Company shall repay, all or
any part of such Holder's Debentures on _____________, 20__ (the "Repayment
Date"), at a price (the "Repayment Price") equal to 100% of the principal amount
thereof, together with accrued interest to _____________, 20__.]
[To exercise such right, the Holder of this Debenture shall surrender
this Debenture, at the office or agency of the Company in New York, New York
during the period beginning on _____________, 20__, and ending at 5 p.m. (New
York City time) on _____________, 20__ (or, if _____________, 20__, is not a
Business Day, the next succeeding Business Day), with the form entitled "Option
to Elect Repayment on _____________, 20__ on the last page hereof duly
completed. Any such notice received by the Company during the period beginning
_____________, 20__, and ending at 5 p.m. (New York City time) on _____________,
20__ (or, if _____________, 20__, is not a Business Day, the next succeeding
Business Day) shall be irrevocable. If the Repayment Date falls between any
Regular Record Date and the next succeeding Interest Payment Date, this
Debenture must be accompanied by payment from the Holder of an amount equal to
the interest thereon which the registered Holder thereof is to receive on such
Interest Payment Date. The repayment option may be exercised by any Holder for
less than the entire principal amount of this Debenture, provided that the
principal amount with respect to which such right is exercised must be equal to
$1,000 or an integral multiple of $1,000. All questions as to the validity,
form, eligibility (including time of receipt), and acceptance of this Debenture
for repayment shall be determined by the Company, whose determination shall be
final and binding.]
[Failure by the Company to repay the Debentures when required as
described in the preceding two paragraphs will result in an Event of Default
under the Indenture.]
If an Event of Default with respect to the Debentures shall occur and be
continuing, the principal of all the Debentures may be declared due and payable
in the manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series under the
Indenture to be affected at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of a majority in principal amount of the
Securities of each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company with certain
provisions of the Indenture and certain past defaults under the Indenture and
their consequences. Any such consent or waiver by the Holder of this Debenture
shall be conclusive and binding upon such Holder and upon all future Holders of
this Debenture and of any Debenture issued upon the registration of transfer
hereof or in exchange herefor or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Debenture.
No reference herein to the Indenture and no provision of this Debenture
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and interest on this
Debenture at the times, place and rate, and in the coin or currency, herein
prescribed; subject, however, to the provisions for the discharge of the Company
from its obligation under the Debentures upon satisfaction of the conditions set
forth in the Indenture.
As provided in the Indenture, the Company may elect to defease and (a) be
discharged from all obligations in respect of the Debentures (except for certain
obligations to register the transfer or exchange of the Debentures, to replace
mutilated, destroyed or stolen Debentures, to maintain paying agencies and to
hold moneys in trust) or (b) be released from its obligations with respect to
the Debentures under certain restrictive covenants of the Indenture, in each
case if the Company deposits, in trust, with the Trustee money and/or Government
Obligations, which through the payment of interest and principal thereon in
accordance with their terms will provide money sufficient, without reinvestment,
to pay the principal of and interest on the Debentures. The Indenture provides
that such a trust may only be established if (i) no Event of Default or event
which with the giving of notice or lapse of time, or both, would become an Event
of Default with respect to the Debentures shall have occurred and be continuing,
(ii) the Company shall have delivered an Opinion of Counsel to the effect that
the Holders will not recognize income, gain or loss for federal income tax
purposes as a result of such defeasance and will be subject to federal income
tax on the same amounts, in the same manner, and at the same times as if such
defeasance had not occurred, and (iii) certain other conditions are satisfied.
[This Debenture may not be redeemed at the option of the Company prior to
Stated Maturity.]
[or]
[This Debenture may be redeemed at the option of the Company on any date
on or after [DATE] upon mailing a notice of such redemption not less than 30 nor
more than 60 days prior to the date fixed for redemption to the Holder of this
Debenture at such Holder's address appearing in the Security Register, all as
provided in the Indenture, at a Redemption Price equal to ____% of the principal
amount, together with accrued interest to the date fixed for redemption. As
provided in the Indenture, if less than all of the Debentures are to be
redeemed, the Trustee shall select by such method as the Trustee shall deem fair
and appropriate, from Debentures that are subject to redemption pursuant to the
terms thereof, the Debenture or Debentures, or portion or portions thereof, to
be redeemed.]
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Debenture is registrable in the Security
Register upon surrender of this Debenture for registration of transfer at the
office or agency of the
Exhibit 4.5
-2-
<PAGE>
Company in any place where the principal of and interest on this Debenture are
payable, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Debentures of authorized denominations, of like tenor and of like
aggregate principal amount will be issued to the designated transferee or
transferees.
The Debentures are issuable only in registered form without coupons in
denominations of $1,000 and any amount in excess thereof which is an integral
multiple of $1,000. As provided in the Indenture and subject to certain
limitations therein set forth, at the option of the Holder, this Debenture may
be exchanged for other Debentures of any authorized denomination, of like tenor
and of like aggregate principal amount, upon surrender of this Debenture.
This Debenture is a Global Debenture and shall be exchangeable for
Debentures registered in the name of, and a transfer of this Global Debenture
may be registered to, any Person other than the Depository for this Global
Debenture or its nominee only if permitted by the Indenture.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
All terms used in this Debenture which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
Exhibit 4.5
-3-
<PAGE>
ASSIGNMENT
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers
unto
PLEASE INSERT SOCIAL SECURITY
OR OTHER IDENTIFYING NUMBER
OF ASSIGNEE
- ------------------------------------ ---------------------------------------
(Please print or typewrite name and
address including zip code of assignee)
- --------------------------------------------------------------------------------
the within Debenture and all rights thereunder, hereby irrevocably constituting
and appointing _______________________________________________________ attorney,
to transfer said Debenture on the books of the Company, with full power of
substitution in the premises.
Dated:
---------------------------------------------
NOTICE: The signature to this assignment
must correspond with the name as it appears
upon the face of the within Debenture in
every particular, without alteration or
enlargement or any change whatever.
Exhibit 4.5
-4-
<PAGE>
Option to Elect Repayment on _____________, 20__
The undersigned registered Holder of this Debenture hereby irrevocably
exercises the option to require the Company to repay this Debenture or portion
thereof (which is $1,000 or an integral multiple thereof) below designated on
_____________, 20__, in accordance with the terms of such Debenture, and directs
that payment be made to the registered Holder hereof unless a different name has
been indicated below. Any amount required to be paid by the undersigned on
account of interest accompanies this Debenture.
Dated: _____________, 20__
Signature(s) must be Holder's Signature:
guaranteed if payment is to be
made other than to and in the name
of the registered Holder.
----------------------------------------------
NOTICE: The signature must correspond with
the name as it appears upon the face of this
Debenture in every particular, without
alteration alteration or enlargement or
any change whatever.
- -------------------------------
Signature Guarantee
Fill in for payment of Repayment Portion of Debenture to be repaid (in integral
multiples of $1,000) if other than the full
principal amount thereof:
Price if to be made otherwise ----------------------------------------------
than to the registered Holder
- ------------------------------
Name
- ------------------------------
Address
Please print name and address
(including zip code)
SOCIAL SECURITY OR TAXPAYER
IDENTIFICATION NUMBER
- ------------------------------
Exhibit 4.5
-5-
<PAGE>
Miller, Nash, Wiener, Hager & Carlsen LLP
3500 U. S. Bancorp Tower
111 S.W. Fifth Avenue
Portland, Oregon 97204-3699
June 13, 1996
Willamette Industries, Inc.
Suite 3800
1300 S.W. Fifth Avenue
Portland, Oregon 97201
Gentlemen:
Reference is made to the Registration Statement on Form S-3 (the
"Registration Statement"), to be filed by Willamette Industries, Inc., an Oregon
corporation (the "Company"), with the Securities and Exchange Commission (the
"Commission") for the purpose of registering under the Securities Act of 1933,
as amended (the "Act"), senior debt securities of the Company in the aggregate
principal amount of $200,000,000 (the "Securities") to be issued under an
indenture dated as of January 30, 1993 (the "Indenture"), between the Company
and The Chase Manhattan Bank (National Association). The Securities may be
offered and sold from time to time as set forth in the prospectus (the
"Prospectus") included in the Registration Statement and in supplements to the
Prospectus.
As counsel for the Company, we are familiar with the actions taken by
the Company with respect to the authorization of the Securities and the
Indenture. We have examined the Registration Statement, the Indenture, and
originals or copies, certified or otherwise identified to our satisfaction, of
such corporate records, certificates, and other documents as we have deemed
necessary or relevant as a basis for the opinion set forth herein.
Based on the foregoing, it is our opinion that:
1. The Company is a corporation duly organized and validly existing
under the laws of the state of
Exhibit 5
<PAGE>
Willamette Industries,
Inc. - 2 - June 13, 1996
Oregon with corporate power and authority under such laws to issue the
Securities.
2. The Indenture has been duly executed and delivered by the Company,
and qualified under the Trust Indenture Act of 1939, as amended, and
constitutes a legal, valid, and binding indenture of the Company.
3. When (i) the issuance and sale of the Securities has been duly
authorized by appropriate corporate action, (ii) the Securities have been
duly executed, authenticated, and delivered in accordance with the
Indenture, and (iii) the Securities have been sold as described in the
Registration Statement, the Prospectus, and supplements to the Prospectus,
and payment is received therefor, while the Registration Statement is
effective and in compliance with state securities laws, the Securities will
constitute legal, valid, and binding obligations of the Company entitled to
the benefits of the Indenture.
This opinion is based upon the laws of the United States and the state
of Oregon at the date hereof and would not necessarily be the same at any
subsequent date.
We consent to the use of this opinion in the Registration Statement
and in any amendments thereto and to the reference to us under the caption
"Validity of Offered Securities" in the Prospectus. In giving this consent, we
do not thereby admit that we come within the category of persons whose consent
is required under Section 7 of the Act or the rules and regulations of the
Commission thereunder.
Very truly yours,
MILLER, NASH, WIENER, HAGER & CARLSEN LLP
Exhibit 5
<PAGE>
KPMG Peat Marwick LLP
Suite 2000
1211 South West Fifth Avenue
Portland, OR 97204
CONSENT OF INDEPENDENT AUDITORS
-------------------------------
The Board of Directors
Willamette Industries, Inc.:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the Prospectus. Our report
refers to a change in accounting related to income taxes and postemployment
benefits in 1993.
KPMG PEAT MARWICK LLP
June 13, 1996
Exhibit 23.1
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that each person whose signature
appears below constitutes and appoints Steven R. Rogel and J. A. Parsons, and
each of them, such person's true and lawful attorneys-in-fact and agents, with
full power of substitution and resubstitution, for such person and in his or her
name, place and stead, in any and all such person's capacities with Willamette
Industries, Inc., an Oregon corporation (the "Company"), to sign a registration
statement on Form S-3 relating to up to $200 million principal amount of debt
securities of the Company, and any and all amendments (including post-effective
amendments) thereto, and to file the same, with all exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission
under the Securities Act of 1933, as amended, granting unto said attorneys-in-
fact and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite and necessary to be done, as fully to all
intents and purposes as he or she might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or each of them, or
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
IN WITNESS WHEREOF, this power of attorney has been executed by each
of the undersigned as of this 8th day of February, 1996.
Signature Title
--------- -----
/s/ Steven R. Rogel President and Chief
- ------------------------------ Executive Officer and Director
Steven R. Rogel (Principal Executive Officer)
/s/ J. A. Parsons Executive Vice President
- ------------------------------ and Chief Financial Officer (Principal
J. A. Parsons Financial Officer)
/s/ Duane C. McDougall Vice President -
- ------------------------------ Controller (Principal Accounting
Duane C. McDougall Officer)
EXHIBIT 24.1
-1-
<PAGE>
/s/ C. M. Bishop, Jr. Director
- ------------------------------
C. M. Bishop, Jr.
/s/ Gerard K. Drummond Director
- ------------------------------
Gerard K. Drummond
/s/ E. B. Hart Director
- ------------------------------
E. B. Hart
/s/ C. W. Knodell Director
- ------------------------------
C. W. Knodell
/s/ Paul N. McCracken Director
- ------------------------------
Paul N. McCracken
/s/ Stuart J. Shelk, Jr. Director
- ------------------------------
Stuart J. Shelk, Jr.
/s/ Robert M. Smelick Director
- ------------------------------
Robert M. Smelick
/s/ William Swindells Director
- ------------------------------
William Swindells
/s/ Samuel C. Wheeler Director
- ------------------------------
Samuel C. Wheeler
/s/ Benjamin R. Whiteley Director
- ------------------------------
Benjamin R. Whiteley
EXHIBIT 24.1
-2-
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS that the person whose signature appears
below constitutes and appoints Steven R. Rogel and J. A. Parsons, and each of
them, such person's true and lawful attorneys-in-fact and agents, with full
power of substitution and resubstitution, for such person and in his name, place
and stead, in any and all such person's capacities with Willamette Industries,
Inc., an Oregon corporation (the "Company"), to sign a registration statement on
Form S-3 relating to up to $200 million principal amount of debt securities of
the Company, and any and all amendments (including post-effective amendments)
thereto, and to file the same, with all exhibits thereto, and other documents in
connection therewith, with the Securities and Exchange Commission under the
Securities Act of 1933, as amended, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done, as fully to all intents
and purposes as he might or could do in person, hereby ratifying and confirming
all that said attorneys-in-fact and agents, or each of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue hereof.
IN WITNESS WHEREOF, this power of attorney has been executed by the
undersigned as of this 22nd day of May, 1996.
Signature Title
--------- -----
/s/ Greg W. Hawley Vice President -
- ------------------------------ Controller (Principal
Greg W. Hawley Accounting Officer)
EXHIBIT 24.2
<PAGE>
Securities Act of 1933 File No. _________
(If application to determine eligibility of trustee
for delayed offering pursuant to Section 305 (b) (2))
________________________________________________________________________________
________________________________________________________________________________
__________________
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
__________________
FORM T-1
STATEMENT OF ELIGIBILITY UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2)___________
__________________
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
(Exact name of trustee as specified in its charter)
13-2633612
(I.R.S. Employer Identification Number)
1 CHASE MANHATTAN PLAZA, NEW YORK, NEW YORK
(Address of principal executive offices)
10081
(Zip Code)
________________
WILLAMETTE INDUSTRIES, INC.
(Exact name of obligor as specified in its charter)
OREGON
(State or other jurisdiction of incorporation or organization)
93-0312940
(I.R.S. Employer Identification No.)
1300 S.W. FIFTH AVENUE, SUITE 3800
PORTLAND, OREGON
(Address of principal executive offices)
97201
(Zip Code)
__________________________________
SENIOR DEBT SECURITIES
(Title of the indenture securities)
________________________________________________________________________________
________________________________________________________________________________
<PAGE>
ITEM 1. GENERAL INFORMATION.
Furnish the following information as to the trustee:
(a) Name and address of each examining or supervising authority to which
it is subject.
Comptroller of the Currency, Washington, D.C.
Board of Governors of The Federal Reserve System, Washington,
D.C.
(b) Whether it is authorized to exercise corporate trust powers.
Yes.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR.
If the obligor is an affiliate of the trustee, describe each such
affiliation.
The Trustee is not the obligor, nor is the Trustee directly or
indirectly controlling, controlled by, or under common control with
the obligor.
(See Note on Page 2.)
ITEM 16. LIST OF EXHIBITS.
List below all exhibits filed as a part of this statement of eligibility.
*1. -- A copy of the articles of association of the trustee as now in
effect . (See Exhibit T-1 (Item 12), Registration No. 33-55626.)
*2. -- Copies of the respective authorizations of The Chase Manhattan Bank
(National Association) and The Chase Bank of New York (National
Association) to commence business and a copy of approval of merger
of said corporations, all of which documents are still in effect.
(See Exhibit T-1 (Item 12), Registration No. 2-67437.)
*3. -- Copies of authorizations of The Chase Manhattan Bank (National
Association) to exercise corporate trust powers, both of which
documents are still in effect. (See Exhibit T-1 (Item 12),
Registration No. 2-67437.)
*4. -- A copy of the existing by-laws of the trustee. (See Exhibit T-1
(Item 16) (25.1), Registration No. 33-60809.)
*5. -- A copy of each indenture referred to in Item 4, if the obligor is
in default. (Not applicable.)
*6. -- The consents of United States institutional trustees required by
Section 321(b) of the Act. (See Exhibit T-1, (Item 12),
Registration No. 22-19019.)
7. -- A copy of the latest report of condition of the trustee published
pursuant to law or the requirements of its supervising or examining
authority.
___________________
*The Exhibits thus designated are incorporated herein by reference.
Following the description of such Exhibits is a reference to the copy of the
Exhibit heretofore filed with the Securities and Exchange Commission, to which
there have been no amendments or changes.
___________________
1.
<PAGE>
NOTE
Inasmuch as this Form T-1 is filed prior to the ascertainment by the
trustee of all facts on which to base a responsive answer to Item 2 the answer
to said Item is based on incomplete information.
Item 2 may, however, be considered as correct unless amended by an
amendment to this Form T-1.
SIGNATURE
Pursuant to the requirements of the Trust Indenture Act of 1939, the
trustee, The Chase Manhattan Bank (National Association), a corporation
organized and existing under the laws of the United States of America, has duly
caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in the City of New York, and the
State of New York, on the 13th day of June, 1996.
THE CHASE MANHATTAN BANK
(NATIONAL ASSOCIATION)
By: John T. Needham, Jr.
----------------------------------
Corporate Trust Officer
2.
<PAGE>
Exhibit 7
---------
REPORT OF CONDITION
Consolidating domestic and foreign subsidiaries of the
The Chase Manhattan Bank, N.A.
of New York in the State of New York, at the close of business on March 31,
1996 published in response to call made by Comptroller of the Currency, under
title 12, United States Code, Section 161.
<TABLE>
<CAPTION>
Charter Number 2370 Comptroller of the Currency Northeastern District
Statement of Resources and Liabilities
Thousands
ASSETS of Dollars
<S> <C>
Cash and balances due from depository institutions:
Noninterest-bearing balances and currency and coin.............................................................. $ 5,026,000
Interest-bearing balances....................................................................................... 4,135,000
Held to maturity securities......................................................................................... 0
Available-for-sale securities....................................................................................... 5,632,000
Federal funds sold and securities purchased under agreements to resell in domestic offices of the bank and of its
Edge and Agreement subsidiaries, and in IBFs:
Federal funds sold.............................................................................................. 1,254,000
Securities purchased under agreements to resell................................................................. 880,000
Loans and lease financing receivable:
Loans and leases, net of unearned income.................................................. $ 60,869,000
LESS: Allowance for loan and lease losses................................................. 1,113,000
LESS: Allocated transfer risk reserve.................................................... 0
------------
Loans and leases, net of unearned income, allowance, and reserve................................................ 59,756,00
Assets held in trading accounts..................................................................................... 13,203,000
Premises and fixed assets (including capitalized leases)............................................................ 1,690,000
Other real estate owned............................................................................................. 268,000
Investments in unconsolidated subsidiaries and associated companies................................................. 29,000
Customers' liability to this bank on acceptances outstanding........................................................ 1,170,000
Intangible assets................................................................................................... 1,330,000
Other assets........................................................................................................ 9,398,000
---------
TOTAL ASSETS........................................................................................................ $103,771,000
============
LIABILITIES
Deposits:
In domestic offices............................................................................................. $30,681,000
Noninterest-bearing.................................................................... $ 11,913,000
Interest-bearing....................................................................... 18,768,000
------------
In foreign offices, Edge and Agreement subsidiaries, and IBFs................................................... 38,923,000
Noninterest-bearing.................................................................... $ 3,696,000
Interest-bearing....................................................................... 35,227,000
------------
Federal funds purchased and securities sold under agreements to repurchase in domestic offices of the bank and
of its Edge and Agreement subsidiaries, and in IBFs:
Federal funds purchased......................................................................................... 3,143,000
Securities sold under agreements to repurchase.................................................................. 100,000
Demand notes issued to the U.S. Treasury............................................................................ 25,000
Trading liabilities................................................................................................. 8,453,000
Other borrowed money:
With original maturity of one year or less...................................................................... 3,064,000
With original maturity of more than one year.................................................................... 365,000
Mortgage indebtedness and obligations under capitalized leases...................................................... 39,000
Bank's liability on acceptances executed and outstanding............................................................ 1,173,000
Subordinated notes and debentures................................................................................... 1,960,000
Other liabilities................................................................................................... 8,482,000
TOTAL LIABILITIES................................................................................................... 96,408,000
Limited-life preferred stock and related surplus.................................................................... 0
EQUITY CAPITAL
Perpetual preferred stock and related surplus....................................................................... 0
Common stock........................................................................................................ 921,000
Surplus............................................................................................................. 5,354,000
Undivided profits and capital reserves.............................................................................. 1,092,000
Net unrealized holding gains (losses) on available-for-sale securities.............................................. (15,000)
Cumulative foreign currency translation adjustments................................................................. 11,000
TOTAL EQUITY CAPITAL................................................................................................ 7,363,000
TOTAL LIABILITIES, LIMITED-LIFE PREFERRED STOCK,
AND EQUITY CAPITAL............................................................................................. $ 103,771,000
</TABLE>
I, Lester J. Stephens, Jr., Senior Vice President and Controller of the above
named bank do hereby declare that this Report of Condition is true and correct
to the best of my knowledge and belief. (Signed) Lester J. Stephens, Jr.
We the undersigned directors, attest to the correctness of this statement of
resources and liabilities. We declare that it has been examined by us, and to
the best of our knowledge and belief has been prepared in conformance with the
instructions and is true and correct.
(Signed) Thomas G. Labrecque
(Signed) Donald Trautlein Directors
(Signed) Richard J. Boyle
