<PAGE>
EXHIBIT (a)(5)(xi)
IN THE CIRCUIT COURT OF THE STATE OF OREGON
FOR THE COUNTY OF MULTNOMAH
State ex rel. WEYERHAEUSER COMPANY Case No. 0012-12698
and its wholly owned subsidiary COMPANY
HOLDINGS, INC., ORDER AND
PEREMPTORY WRIT
Relators,
v.
WILLAMETTE INDUSTRIES, INC.,
Defendant.
-------------------------------------------
On December 19, 26, 27, and 28, 2000, relators Weyerhaeuser Company and
Company Holdings, Inc. (collectively, the "Relators"), appearing by and through
their counsel Michael H. Simon and Anne L. Nichol of Perkins Coie LLP, and
defendant Willamette Industries, Inc. ("Willamette"), appearing by and through
its counsel John F. Neupert and J. Franklin Cable of Miller Nash LLP, presented
argument to the Court regarding Relators' Alternative Writ of Mandamus and
related issues. After considering the argument of counsel and the file herein,
the Court hereby ORDERS as follows:
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1. Defendant's Motion to Dismiss is DENIED.
2. Defendant's Motion to Compel Discovery is DENIED.
3. Relators' Motion for Peremptory Writ is GRANTED for the following
reasons and to the following extent:
a. The phrase "The record of shareholders," as set forth in ORS
60.774(2)(c), is not a defined term. Considering both text and context, that
phrase is broader than the items described in ORS 60.771(3) and includes all of
the items described in Relators' Demand dated November 29, 2000, attached as
Exhibit 1 to Relators' Alternative Writ of Mandamus and as Exhibit 1 to this
Order, except for paragraph (i) (relating to holders of options), on the grounds
that the holder of a option is not a shareholder merely by virtue of holding an
option to purchase shares.
b. Based upon the Stipulation of the parties, Relators have the
requisite "good faith" and "proper purpose" under ORS 60.774(3) with respect to
their Demand dated November 29, 2000.
c. Willamette is directed to produce all items referred to in
paragraphs (b)-(d) of Relators' Demand dated November 29, 2000, to Relators'
designated agent Innisfree M&A Incorporated, 501 Madison Avenue, 20th Floor, New
York, NY 10022 (Attn.: Alan M. Miller) no later than 3:00 p.m. (New York time)
on Friday, December 29, 2000.
d. Willamette is directed to produce all items referred to in
paragraphs (f)-(h) of Relators' Demand dated November 29, 2000, to Relators'
designated agent Innisfree M&A Incorporated, 501 Madison Avenue, 20th Floor, New
York, NY 10022 (Attn.: Alan M. Miller) no later than 3:00 p.m. (New York time)
on Wednesday, January 3, 2001.
e. Willamette is further directed to make available on a daily basis
for morning pick-up by Relators' designated agent Innisfree M&A Incorporated in
New York all revisions of or modifications, additions, or deletions to any and
all information referred to in paragraphs (a)-(d) and (f)-(h) of Relators'
Demand that were received by Willamette or its agents
<PAGE>
or representatives (including, but not limited to, its proxy solicitors,
attorneys, and transfer agents) during the previous day, through the date of
Willamette's 2001 Annual Meeting or, if later, any Special Meeting (as that term
is defined in Relators' Demand dated November 29, 2000).
f. To the extent that the information referred to in paragraph (e)
of Relators' Demand dated November 29, 2000, i.e., so-called "NOBO" and "COBO"
lists, is now in the possession, custody, or control of Willamette or its agents
or representatives (including, but not limited to, its proxy solicitors,
attorneys, and transfer agents), Willamette is further directed to produce that
information to Relators' designated agent Innisfree M&A Incorporated in New York
no later than 3:00 p.m. (New York time) on Friday, December 29, 2000. To the
extent that the information referred to in paragraph (e) of Relators' Demand
dated November 29, 2000, i.e., so-called "NOBO" and "COBO" lists, is not now in
the possession, custody, or control of Willamette or its agents or
representatives, but later comes into the possession, custody, or control of
Willamette or its agents or representatives, Willamette is further directed to
produce such information to Relators' designated agent Innisfree M&A
Incorporated in New York the following morning with the other items in the daily
morning pick-up described in this Order.
g. Nothing in this Order shall require Willamette to request,
create, or obtain any document from any third-party, including, but not limited
to, so-called "CEDE & Co.," "NOBO," and "COBO" lists, and Willamette is required
to produce such documents only to the extent that they are in the possession,
custody, or control of Willamette or its agents or representatives (including,
but not limited to, its proxy solicitors, attorneys, and transfer agents).
h. Any material produced to Relators in response to this Order must
be produced in substantially the same form or forms as it is received by
Willamette or its agents or representatives. In addition, if any information
required to be produced to Relators in response to this Order is received by
Willamette in electronic form after the date of this Order, then it shall
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be produced electronically to Relators' designated agent Innisfree M&A
Incorporated in New York within one hour after its receipt by Willamette, if
possible.
i. With respect to any category of information required to be
produced to Relators in response to this Order, if Willamette has been receiving
such information and, after the date of this Order, ceases to receive such
information, Willamette shall immediately notify Relators' designated agent
Innisfree M&A Incorporated in New York. If Willamette thereafter resumes
receiving such information, it shall immediately notify Relators' designated
agent Innisfree M&A Incorporated in New York and shall produce such information
as required by the terms of this Order.
4. Willamette may impose charges to be paid by Relators to the extent
permitted by ORS 60.777(3), which provides: "The corporation may impose a
reasonable charge, covering the costs of labor and material, for copies of any
documents provided to the shareholder. The charge may not exceed the estimated
cost of production or reproduction of the records."
5. The Court shall retain jurisdiction over this case for purposes of
enforcing this Order through the date of Willamette's 2001 Annual Meeting or, if
later, any Special Meeting (as that term is defined in Relators' Demand dated
November 29, 2000).
[The balance of this page has been intentionally left blank.]
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6. Relators may submit their statement of costs and attorney fees, and
Willamette may submit its objections to Relators' statement of costs and fees,
including Willamette's objections to whether Relators should recover any costs
or fees.
DATED this 28th day of December, 2000.
/s/ Hon. Janice R. Wilson
-------------------------------
Hon. Janice R. Wilson
Multnomah County Circuit Court
Submitted by:
/s/ Michael H. Simon
----------------------------
Michael H. Simon, OSB 86090
Anne L. Nichol, OSB 99158
PERKINS COIE LLP
Telephone: (503) 727-2000
Facsimile: (503) 727-2222
Rory O. Millson
Elizabeth Grayer
CRAVATH, SWAINE & MOORE
825 Eighth Avenue
New York, NY 10019
Telephone: (212) 474-1000
Facsimile: (212) 474-3700
Attorneys for Relators Weyerhaeuser Company
and Company Holdings, Inc.
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EXHIBIT 1
WEYERHAEUSER COMPANY
COMPANY HOLDINGS, INC.
33663 Weyerhaeuser Way South
Federal Way, Washington 98003
BY HAND DELIVERY November 29, 2000
Willamette Industries, Inc.
1300 Southwest Fifth Avenue
Portland, Oregon 97201
Attention: G.W. Hawley
Corporate Secretary
Re: Demand for Inspection of Shareholder
List and Books and Records Pursuant to
Section 60.774(2) of the Oregon Business
Corporation Act
Dear Sir:
Weyerhaeuser Company ("Weyerhaeuser"), a Washington
corporation, is the beneficial owner of 1,000 shares of
Common Stock, par value $0.50 per share (the "Common Stock"),
of the Company, an Oregon corporation (the "Company"),
including 500 shares of Common Stock held by Weyerhaeuser and
500 shares of Common Stock held by Company Holdings, Inc., a
Washington corporation and a wholly owned subsidiary of
Weyerhaeuser ("CHI" and, together with Weyerhaeuser, the
"Requesting Shareholders"). CHI is the owner of 500 shares of
Common Stock. Attached hereto as Exhibit A is evidence of
such ownership. As common shareholders of the Company, the
Requesting Shareholders hereby demand, pursuant to Section
60.774(2) of the Oregon Business Corporation Act (the "OBCA")
and the common law of the State of Oregon, the right to
inspect on Thursday, December 7, 2000 the following records
and documents of the Company and to make copies and extracts
therefrom during regular business hours at a reasonable
location specified by the Company:
(a) A complete record or list of holders of
shares of Common Stock and the associated rights to
purchase shares of Series B Junior Participating
Preferred Stock of the Company (the "Rights")
issued pursuant to the Rights Agreement, dated as
of February 25, 2000, between the Company and
ChaseMellon Shareholder Services, L.L.C., as Rights
Agent, if any. Such data should be certified by the
Company or its transfer agent, showing the name,
account number and address of each shareholder and
the number of shares of Common Stock and Rights
registered in the name of such holder, as of the
most recent date available;
(b) A magnetic computer tape list of the holders of
shares of Common Stock or Rights as of the most
recent date available, showing the name, account
number, address and number of shares of Common
Stock and Rights registered in the name of each
such holder as of the most recent date available
and such computer processing data as is necessary
to make use of such magnetic computer tape, and a
printout of such magnetic computer tape for
verification purposes;
(c) All daily transfer sheets showing changes in the
records and lists of holders of shares of Common
Stock or Rights referred to above that are in or
come into the possession or control of the Company
or its transfer agent or other agents, or that can
reasonably be obtained from brokers, dealers,
banks, clearing agencies or voting trustees or
<PAGE>
their nominees, from the date of the shareholder
lists referred to in paragraphs (a) and (b) above
to the date for the Company's 2001 Annual Meeting
of shareholders (the "2001 Annual Meeting") or, if
later, any special meeting of the Company's
shareholders (a "Special Meeting") at which action
is proposed to be taken that may bear in any way
upon the proposed business combination between
Weyerhaeuser and the Company, including, without
limitation, any action with respect to Sections
60.801 to 60.816 of the OBCA;
(d) All information in or that comes into the Company's
possession or control, or that can reasonably be
obtained from brokers, dealers, banks, clearing
agencies or voting trustees or their nominees,
concerning the names, addresses and number of
shares of Common Stock or Rights held by the
participating brokers and banks named in the
individual nominee name of Cede & Co. or other
similar nominees, including omnibus proxies and all
"Security Position Listing" reports issued by The
Depository Trust Company; and a list or lists
containing the name, address and number of shares
of Common Stock attributable to any participant in
any Company employee stock ownership or comparable
plan, including the Willamette Industries Stock
Purchase Plan, the name of the trustee and
methodology for voting said plans and the method by
which the Requesting Shareholders may communicate
with such participants;
(e) All information in or that comes into the Company's
possession or control, or that can reasonably be
obtained from brokers, dealers, banks, clearing
agencies or voting trustees or their nominees
relating to the names of the non-objecting
beneficial owners ("NOBOs") and consenting
beneficial owners of shares of Common Stock or
Rights in the format of a printout in descending
order balance, magnetic computer tape and such
computer processing data as is necessary to make
use of such magnetic computer tape, and a printout
of such magnetic computer tape for verification
purposes (such information is readily available to
the Company under Rule 14b-1(b) under the
Securities Exchange Act of 1934 from the
Independent Election Corporation of America or ADP
Proxy Services);
(f) All "stop" lists or "stop transfer" lists relating
to the shares of Common Stock or Rights and any
changes, corrections, additions or deletions from
such lists, from the date of the shareholder lists
referred to in paragraphs (a) and (b) above to the
date of the 2001 Annual Meeting or, if later, any
Special Meeting;
(g) A list as of the date of the list referred to in
<PAGE>
paragraph (a) above of all holders of shares of
Common Stock owning 1,000 or more shares of Common
Stock and all holders of Rights owning 1,000 or
more Rights, arranged in descending order;
(h) All respondent bank lists and omnibus proxies for
such lists (such information is readily
available to the Company under Rule 14b-2 of the
Securities Exchange Act of 1934);
(i) A list of all holders of options to purchase shares
of Common Stock, the date on which any such option
was granted, the date on which any such option
becomes exercisable and the exercise price of any
such option as of the most recent date available;
(j) The information and records specified in paragraphs
(a) through (i) above as of any record date for
shareholder action set by the Board of Directors of
the Company (the "Board of Directors"), by
operation of law or otherwise; and
(k) To the extent such items relate to Weyerhaeuser's
August 11, 1998, August 28, 2000 or November 6,
2000 proposals to combine Weyerhaeuser and the
Company, the minutes of any meeting of the Board of
Directors and records of any action of a committee
of the Board of Directors while acting in place of
the Board of Directors on behalf of the Company,
minutes of any meeting of the shareholders of the
Company and records of action taken by the
shareholders of the Company or the Board of
Directors without a meeting, to the extent not
subject to inspection pursuant to Section 60.744(1)
of the OBCA or otherwise provided to the Requesting
Shareholders.
The Requesting Shareholders further demand that
modifications, additions or deletions to any and all
information referred to in paragraphs (a) through (i) and (k)
above as of the date of the list referred to in paragraph (a)
above be immediately furnished to the Requesting Shareholders
as such modifications, additions or deletions become
available to the Company or its agents or representatives
through the date of the 2001 Annual Meeting or, if later, any
Special Meeting and that the information and records
specified in paragraph (d) above be furnished on a daily
basis until the date of the 2001 Annual Meeting or, if later,
any Special Meeting.
The purposes of this demand are to enable the
Requesting Shareholders (1) to communicate with their fellow
Company shareholders on matters relating to their mutual
interests as shareholders, including but not limited to
<PAGE>
communicating with the shareholders of the Company regarding
the proposed business combination between Weyerhaeuser and
the Company and the Board of Directors' responses to
Weyerhaeuser's current and prior business combination
proposals, and (2) to analyze the benefits to the Company and
its shareholders of the proposed business combination between
Weyerhaeuser and the Company.
The Requesting Shareholders hereby designate and
authorize Cravath, Swaine & Moore, Perkins Coie LLP,
Innisfree M & A Incorporated, their respective partners and
employees and any other persons to be designated by them,
acting together, singly or in combination, to conduct as
their agents, the inspection and copying herein requested.
Please advise Andrew J. Pitts of Cravath, Swaine &
Moore, Worldwide Plaza, 825 Eighth Avenue, New York, New York
10019 (telephone: (212) 474-1000; fax: (212) 474-3700) when
and where the items demanded above will be made available.
Very truly yours,
WEYERHAEUSER COMPANY
By: /s/ STEVEN R. ROGEL
--------------------
Name: STEVEN R. ROGEL
------------------
Title: PRESIDENT & CEO
-----------------
COMPANY HOLDINGS, INC.
By: /s/ ROBERT A. DOWDY
--------------------
Name: ROBERT A. DOWDY
------------------
Title: VICE PRESIDENT
-----------------
POWER OF ATTORNEY
KNOW ALL MEN that Weyerhaeuser Company
("Weyerhaeuser") does hereby make, constitute and appoint
Cravath, Swaine & Moore and its partners, employees, agents
and other persons designated by Cravath, Swaine & Moore;
Perkins Coie LLP, its partners, employees, agents and other
persons designated by Perkins Coie LLP; and Innisfree M & A
Incorporated, its directors, officers, employees, agents and
<PAGE>
other persons designated by Innisfree M & A Incorporated, its
true and lawful attorneys-in-fact and agents for it in its
name, place and stead, giving and granting unto said
attorneys and agents full power and authority to act on its
behalf, as a Shareholder of Willamette Industries, Inc. (the
"Company"), to seek the production, and to engage in the
inspection and copying, of records and documents of every
kind and description, including, without limitation,
stocklist materials, the articles of incorporation and
amendments thereto, minutes, bylaws and amendments thereto
and any other business records relating to the Company.
Weyerhaeuser reserves all rights on its part to do
any act that said attorneys hereby are authorized to do or
perform. This Power of Attorney may be terminated by
Weyerhaeuser or said attorneys by written notice to the
other.
WEYERHAEUSER COMPANY
By: /s/ STEVEN R. ROGEL
--------------------
Name: STEVEN R. ROGEL
------------------
Title: PRESIDENT & CEO
-----------------
POWER OF ATTORNEY
KNOW ALL MEN that Company Holdings, Inc. ("CHI")
does hereby make, constitute and appoint Cravath, Swaine &
Moore and its partners, employees, agents and other persons
designated by Cravath, Swaine & Moore; Perkins Coie LLP, its
partners, employees, agents and other persons designated by
Perkins Coie LLP; and Innisfree M & A Incorporated, its
directors, officers, employees, agents and other persons
designated by Innisfree M & A Incorporated, its true and
lawful attorneys-in-fact and agents for it in its name, place
and stead, giving and granting unto said attorneys and agents
full power and authority to act on its behalf, as a
Shareholder of Willamette Industries, Inc. (the "Company"),
to seek the production, and to engage in the inspection and
copying, of records and documents of every kind and
description, including, without limitation, stocklist
materials, the articles of incorporation and amendments
thereto, minutes, bylaws and amendments thereto and any other
business records relating to the Company.
CHI reserves all rights on its part to do any act
that said attorneys hereby are authorized to do or perform.
This Power of Attorney may be terminated by CHI or said
attorneys by written notice to the other.
COMPANY HOLDINGS, INC.
By: /s/ ROBERT A. DOWDY
--------------------
<PAGE>
Name: ROBERT A. DOWDY
------------------
Title: VICE PRESIDENT
-----------------
Exhibit A
[Account Statements Evidencing Weyerhaeuser Company and
Company Holdings, Inc.'s Ownership of Willamette Shares]
CERTIFICATE OF SERVICE
I hereby certify that on the date set forth below I
caused to be served, by the method or methods set forth
below, true and correct copies of the foregoing ORDER
AND PEREMPTORY WRIT on:
(BY FAX AND BY HAND DELIVERY)
John F. Neupert
J. Franklin Cable
Miller Nash LLP
Suite 3500
111 S.W. Fifth Avenue
Portland, OR 97204-3699
(BY FAX TO: 212-455-2502)
James G. Gamble
Gary L. Sellers
Mario A. Ponce
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, NY 10017-3954
DATED this 28th day of December, 2000.
PERKINS COIE LLP
By: /s/ MICHAEL H. SIMON
----------------------------
Michael H. Simon, OSB 86090
Anne L. Nichol, OSB 99158
Telephone: (503) 727-2000
Facsimile: (503) 727-2222
