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Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
by and among
GEORGIA-PACIFIC CORPORATION,
NORTH AMERICAN TIMBER CORP.,
NPI TIMBER, INC.
GNN TIMBER, INC.
GPW TIMBER, INC.
LRFP TIMBER, INC.
NPC TIMBER, INC.
and
PLUM CREEK TIMBER COMPANY, INC.
Dated as of July 18, 2000
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TABLE OF CONTENTS
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Page No.
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ARTICLE I
DEFINITIONS
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Section 1.01 Definitions..................................................................... 2
ARTICLE II
SPINOFF AND THE MERGERS
Section 2.01 The Spinoff..................................................................... 11
Section 2.02 The Mergers..................................................................... 12
Section 2.03 Certificate of Incorporation of the Surviving Corporation....................... 12
Section 2.04 By-Laws of the Surviving Corporation............................................ 12
Section 2.05 Directors and Officers of the Surviving Corporation............................. 12
Section 2.06 Closing......................................................................... 12
ARTICLE III
CONVERSION OF SHARES AND RELATED MATTERS
Section 3.01 Conversion of Capital Stock..................................................... 13
Section 3.02 Exchange of Certificates........................................................ 13
Section 3.03 G-P Stock Options............................................................... 16
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF G-P
Section 4.01 Due Organization, Good Standing and Corporate Power............................. 18
Section 4.02 Authorization and Validity of Agreement......................................... 18
Section 4.03 Capitalization.................................................................. 19
Section 4.04 Consents and Approvals; No Violations........................................... 20
Section 4.05 G-P SEC Filings; Financial Statements........................................... 21
Section 4.06 No Undisclosed Liabilities...................................................... 21
Section 4.07 Information to Be Supplied...................................................... 22
Section 4.08 Absence of Certain Events....................................................... 22
Section 4.09 Litigation...................................................................... 22
Section 4.10 Title to Properties; Encumbrances............................................... 23
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Section 4.11 Compliance with Laws............................................................... 23
Section 4.12 G-P Employee Benefit Plans......................................................... 23
Section 4.13 Employment Relations............................................................... 25
Section 4.14 Taxes.............................................................................. 26
Section 4.15 Intellectual Property.............................................................. 27
Section 4.16 Environmental Matters.............................................................. 28
Section 4.17 State Takeover Statutes............................................................ 29
Section 4.18 Voting Requirements; Board Approval; Appraisal Rights.............................. 29
Section 4.19 Opinion of Financial Advisor....................................................... 30
Section 4.20 Rights Agreement................................................................... 30
Section 4.21 Insurance.......................................................................... 30
Section 4.22 Transactions with Affiliates....................................................... 30
Section 4.23 Material Contracts................................................................. 30
Section 4.24 Redemption......................................................................... 31
Section 4.25 Policies with Respect to Allocation of Expenses.................................... 31
Section 4.26 Disclosure......................................................................... 31
Section 4.27 Broker's or Finder's Fee........................................................... 31
Section 4.28 Solvency........................................................................... 31
Section 4.29 Installment Note................................................................... 32
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PLUM CREEK
Section 5.01 Due Organization, Good Standing and Corporate Power................................ 32
Section 5.02 Authorization and Validity of Agreement............................................ 32
Section 5.03 Capitalization..................................................................... 32
Section 5.04 Consents and Approvals; No Violations.............................................. 33
Section 5.05 Plum Creek SEC Filings; Financial Statements....................................... 34
Section 5.06 No Undisclosed Liabilities......................................................... 35
Section 5.07 Information to Be Supplied......................................................... 35
Section 5.08 Absence of Certain Events.......................................................... 35
Section 5.09 Litigation......................................................................... 36
Section 5.10 Voting Requirements; SPO Approval; Board Approval.................................. 36
Section 5.11 Title to Properties: Encumbrances.................................................. 37
Section 5.12 Compliance with Laws............................................................... 37
Section 5.13 Material Contracts................................................................. 37
Section 5.14 Environmental Matters.............................................................. 38
Section 5.15 Taxes.............................................................................. 38
Section 5.16 Tax Comfort........................................................................ 39
Section 5.17 Transactions with Affiliates....................................................... 39
Section 5.18 Insurance.......................................................................... 40
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Section 5.19 Employment Relations............................................................... 40
Section 5.20 Plum Creek Employee Benefit Plans.................................................. 42
Section 5.21 Broker's or Finder's Fee........................................................... 42
ARTICLE VI
COVENANTS
Section 6.01 Access to Information Concerning Properties and Records............................ 42
Section 6.02 Confidentiality.................................................................... 43
Section 6.03 Conduct of the Business of G-P Pending the Effective Time.......................... 43
Section 6.04 Conduct of the Business of Plum Creek Pending the Effective Time................... 46
Section 6.05 Conduct of the Business of G-P After the Notice of Redemption Date................. 48
Section 6.06 Method of Allocating the Assets and Liabilities of the Timber Group................ 48
Section 6.07 Shareholders' Meetings............................................................. 48
Section 6.08 Preparation of Joint Proxy Statement/Prospectus; Registration Statement............ 49
Section 6.09 Commercially Reasonable Efforts.................................................... 50
Section 6.10 Board Recommendations.............................................................. 50
Section 6.11 No Solicitation.................................................................... 51
Section 6.12 Notification of Certain Matters.................................................... 53
Section 6.13 Public Announcements............................................................... 53
Section 6.14 NYSE and PE Listing................................................................ 53
Section 6.15 Coordination of Dividends.......................................................... 53
Section 6.16 Separation Agreement............................................................... 54
Section 6.17 Ancillary Contracts................................................................ 54
Section 6.18 Affiliates......................................................................... 54
Section 6.19 Method of Effecting the Merger..................................................... 54
Section 6.20 Timber Agreements.................................................................. 54
ARTICLE VII
CONDITIONS TO THE NOTICE OF REDEMPTION AND MERGERS
Section 7.01 Conditions to the Notice of Redemption............................................. 54
Section 7.02 Conditions of Plum Creek........................................................... 55
Section 7.03 Conditions to Obligations of G-P................................................... 57
Section 7.04 Conditions to Obligations of Plum Creek to Effect the Merger....................... 58
Section 7.05 Conditions to Obligations of G-P to Effect the Mergers............................. 59
ARTICLE VIII
TERMINATION AND ABANDONMENT
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Section 8.01 Termination........................................................................ 59
Section 8.02 Effect of Termination.............................................................. 62
ARTICLE IX
MISCELLANEOUS
Section 9.01 Fees and Expenses.................................................................. 63
Section 9.02 Survival of Representations and Warranties......................................... 63
Section 9.03 Notices............................................................................ 64
Section 9.04 Entire Agreement................................................................... 65
Section 9.05 Binding Effect; Benefit; Assignment................................................ 65
Section 9.06 Amendment and Modification......................................................... 65
Section 9.07 Further Actions.................................................................... 65
Section 9.08 Headings........................................................................... 65
Section 9.09 Enforcement........................................................................ 65
Section 9.10 Counterparts....................................................................... 65
Section 9.11 Applicable Law..................................................................... 66
Section 9.12 Severability....................................................................... 66
Section 9.13 Waiver of Jury Trial............................................................... 66
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Exhibit A Human Resources Agreement
Exhibit B Noncompete Agreement
Exhibit C Tax Matters Agreement
Exhibit D-1 Master Timber Agreement
Exhibit D-2 Master Stumpage Agreement
Exhibit D-3 Security Agreement
Exhibit E Transition Services Agreement
Exhibit F Amended Certificate of Incorporation
Exhibit G Form of G-P Legal Opinions
Exhibit H Form of Plum Creek Legal Opinions
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of July 18, 2000 (this "Agreement"),
by and among Plum Creek Timber Company, Inc., a Delaware corporation ("Plum
Creek"), Georgia-Pacific Corporation, a Georgia corporation ("G-P"), and North
American Timber Corp., NPI Timber, Inc., GNN Timber, Inc., GPW Timber, Inc.,
LRFP Timber, Inc., and NPC Timber, Inc., each a Delaware corporation and a
wholly owned subsidiary of G-P (each a "Spinco" and, collectively, the
"Spincos").
WHEREAS, G-P and each of the Spincos below are parties to a Separation
Agreement (as defined below), pursuant to which the Spincos own or shall own all
of the assets and have assumed all of the liabilities (whether accrued,
absolute, contingent or otherwise) of G-P's Timber Group (as defined below)
prior to the Redemption (as defined below);
WHEREAS, immediately prior to the Effective Time (as defined below), G-P
shall redeem all of the outstanding shares of Timber Group Common Stock (as
defined below) in exchange for all of the outstanding shares of each Spinco by
delivery of one unit (a "Unit"), consisting of one share of common stock of each
Spinco, for each share of Timber Group Common Stock outstanding (the
"Redemption");
WHEREAS, pursuant to the Redemption, each option to purchase one share of
Timber Group Common Stock shall be converted into an option to purchase one Unit
on the terms described herein;
WHEREAS, each of the Board of Directors of Plum Creek, G-P and each of the
Spincos, has approved and declared advisable the merger of each of the Spincos
with and into Plum Creek (each, a "Merger" and collectively, the "Mergers"),
with Plum Creek as the surviving corporation, in each case, upon the terms and
subject to the conditions set forth in this Agreement and in accordance with the
General Corporation Law of the State of Delaware (the "DGCL");
WHEREAS, pursuant to resolutions duly adopted, each of the Board of
Directors of Plum Creek, G-P and each of the Spincos has approved and adopted
this Agreement and the transactions contemplated hereby; and
WHEREAS, pursuant to resolutions duly adopted, G-P, as the sole
stockholder of each of the Spincos, has approved and adopted this Agreement and
the transactions contemplated hereby.
<PAGE>
WHEREAS, as a condition to, and in connection with the execution of this
Agreement, SPO (as defined below) has entered into a Voting Agreement and
Consent with Plum Creek and G-P dated as of the date hereof (the "Voting
Agreement").
NOW THEREFORE, in consideration of the foregoing premises and of the mutual
covenants, representations, warranties and agreements herein contained, the
parties hereto, intending to be legally bound hereby, agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Definitions. When used in this Agreement, the following
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terms shall have the respective meanings specified therefor below (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined).
"Affiliate" of any Person shall mean any Person directly or indirectly
controlling, controlled by, or under common control with, such Person; provided
that, for the purposes of this definition, "control" (including with correlative
meanings, the terms "controlled by" and "under common control with"), as used
with respect to any Person, shall mean the possession, directly or indirectly,
of the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of voting securities or partnership
interests, by contract or otherwise.
"Affiliated Entity" shall mean any corporation or other entity in which G-P
or Plum Creek or any of its respective Subsidiaries owns capital stock, a
limited partnership interest or other security which constitutes at least 10% of
all of such outstanding securities or class of securities.
Agreement" shall have the meaning set forth in the preamble hereto.
"Allocation Policies" shall have the meaning set forth in Section 4.25.
"Ancillary Contracts" shall mean the (i) Timber Group Timber Agreements;
(ii) Tax Matters Agreement; (iii) Human Resources Agreement; (iv) Transition
Services Agreements; (v) Noncompete Agreement and (vi) Voting Agreement.
"Business Day" means a day other than a Saturday, a Sunday or a day on
which banks in New York, New York are permitted or required to close.
"Certificate" shall have the meaning set forth in Section 3.02.
"Certificates of Merger" shall have the meaning set forth in Section
2.02(a).
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"Closing" shall have the meaning set forth in Section 2.06.
"Closing Date" shall have the meaning set forth in Section 2.06.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Contracts" shall have the meaning set forth in Section 4.04.
"DGCL" shall have the meaning set forth in the fourth recital hereto.
"Effective Time" shall have the meaning set forth in Section 2.02(a).
"Environmental Claim" shall mean any claim, action, cause of action,
investigation or notice by any Person or entity alleging potential liability
(including, without limitation, potential liability for investigatory costs,
cleanup costs, governmental response costs, natural resources damages, property
damages, personal injuries, or penalties) arising out of, based on or resulting
from (a) the presence, or release into the environment, of any Material of
Environmental Concern at any location, whether or not owned or operated by G-P
or Plum Creek, as the case may be, or (b) circumstances forming the basis of any
violation, or alleged violation, of any Environmental Law.
"Environmental Laws" shall mean any applicable Federal, state, local
and foreign laws and regulations, including common law, relating to pollution or
protection of human health or the environment, including, without limitation,
ambient air, surface water, ground water, land surface or subsurface strata, and
natural resources, and including, without limitation, laws and regulations
relating to emissions, discharges, releases or threatened releases of Materials
of Environmental Concern, or otherwise relating to the manufacture, generation,
processing, distribution, use, treatment, storage, disposal, transport or
handling of Materials of Environmental Concern, or the preservation of the
environment or mitigation of adverse effects thereon and each law and regulation
with regard to record keeping, notification, disclosure, and reporting
requirements respecting Materials of Environmental Concern.
"ERISA" shall have the meaning set forth in Section 4.12(a).
"ERISA Affiliate" shall have the meaning set forth in Section 4.12(a).
"ERISA Plans" shall have the meaning set forth in Section 4.12(a).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended.
"Exchange Agent" shall have the meaning set forth in Section 3.02(a).
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"Exchange Fund" shall have the meaning set forth in Section 3.02(b).
"Exchange Ratio" shall have the meaning set forth in Section 3.01(a).
"Fort Bragg Note" shall have the meaning set forth in Section 6.03(d)(x).
"GAAP" shall mean generally accepted accounting principles of the United
States of America, as in effect from time to time.
"GCC" shall mean the Georgia Business Corporation Code.
"Georgia-Pacific Group" shall mean, as of any date:
(a) the interest of G-P or any of its subsidiaries on such date in all of
the assets, liabilities and businesses of G-P or any of its subsidiaries (and
any successor companies), other than any assets, liabilities and businesses
attributed in accordance with Articles of Incorporation of G-P to the Timber
Group;
(b) all properties and assets transferred to the Georgia-Pacific Group
from the Timber Group pursuant to transactions in the ordinary course of
business of both the Georgia-Pacific Group and the Timber Group or otherwise as
the Board of Directors of G-P may have directed as permitted by the Articles of
Incorporation of G-P; and
(c) the interest of G-P or any of its subsidiaries in any business or
asset acquired and any liabilities assumed by G-P or any of its subsidiaries
outside the ordinary course of business and attributed to the Georgia-Pacific
Group, as determined by the Board of Directors of G-P.
"Georgia-Pacific Group Common Stock" shall mean the Georgia-Pacific
Corporation-Georgia-Pacific Group Common Stock, par value $0.80 per share.
"Governmental Authority" shall have the meaning set forth in Section 4.04.
"G-P" shall have the meaning set forth in the preamble hereto.
"G-P Acquisition Transaction" shall have the meaning set forth in Section
6.11(a).
"G-P Bona Fide Proposal" shall mean a proposal from a third party which G-
P's Board of Directors determines in good faith, and after receipt and
consideration of advice from its legal and financial advisors, is reasonably
capable of being consummated by the Person making the proposal, taking into
account regulatory, legal, financial and other relevant matters.
<PAGE>
"G-P Common Stock" shall mean, collectively, (i) the Georgia-Pacific
Group Common Stock and (ii) the Timber Group Common Stock.
"G-P Disclosure Letter" shall have the meaning set forth in Section 4.01.
"G-P Junior Preferred Stock" shall have the meaning set forth in Section
4.03(a).
"G-P Preferred Stock" shall have the meaning set forth in Section 4.03(a).
"G-P SEC Filings" shall have the meaning set forth in Section 4.05(a).
"HSR Act" shall have the meaning set forth in Section 4.04.
"Human Resources Agreement" shall mean the agreement substantially in the
form attached hereto as Exhibit A.
"IRS" shall mean the United States Internal Revenue Service.
"Issuance Obligation" shall have the meaning set forth in Section 4.03(a).
"Joint Proxy Statement/Prospectus" shall mean the joint proxy
statement/prospectus relating to the Timber Group Shareholder Meeting and the
Plum Creek Stockholder Meeting.
"Laws" shall have the meaning set forth in Section 4.04.
"Liens" shall mean, with respect to any asset, any mortgage, lien, pledge,
charge, option, right of first refusal, security interest or encumbrance of any
kind in respect of such asset. Liens shall not include hunting leases, easements
for roads or public utilities, railroads, licenses or permits or other matters
that do not materially detract from the value of or impair such assets.
"Material of Environmental Concern" shall mean chemicals, pollutants,
contaminants, wastes, toxic or hazardous substances or wastes, petroleum and
petroleum products, asbestos or asbestos-containing materials, polychlorinated
biphenyls, lead or lead-based paints or materials, or radon.
"Material Transaction" shall have the meaning set forth in Section 6.05(b).
"Merger" or "Mergers" shall have the meaning set forth in the fourth
recital hereto.
"Merger Registration Statement" shall have the meaning set forth in Section
5.07(a).
"Noncompete Agreement" shall mean the agreement substantially in the form
attached hereto as Exhibit B.
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"Non-Plum Creek Optionees" shall have the meaning set forth in Section
3.03(c).
"Notice of Redemption" shall have the meaning set forth in Section 2.01(a).
"Notice of Redemption Date" shall have the meaning set forth in Section
2.01(a).
"NYSE" shall mean the New York Stock Exchange, Inc.
"Offeror" shall have the meaning set forth in Section 6.11(c).
"Orders" shall have the meaning set forth in Section 4.04.
"PBGC" shall have the meaning set forth in Section 4.12(c).
"PE" shall mean the Pacific Exchange, Inc.
"Permits" shall have the meaning set forth in Section 4.11(b).
"Person" shall mean and include an association, an individual, a
partnership, a joint venture, joint stock company, a corporation, a trust, an
unincorporated organization, a limited liability company, a group, a government
or other department or agency thereof and any other entity.
"Plans" shall have the meaning set forth in Section 4.12(a).
"Plum Creek" shall have the meaning set forth in the preamble hereto.
"Plum Creek Acquisition Transaction" shall have the meaning set forth in
Section 6.11(d).
"Plum Creek Bona Fide Proposal" shall mean a proposal from a third party
which Plum Creek's Board of Directors determines in good faith, and after
receipt and consideration of advice from its legal and financial advisors, is
reasonably capable of being consummated by the Person making the proposal,
taking into account regulatory, legal, financial and other relevant matters.
"Plum Creek Common Equity" shall mean, collectively, the Plum Creek Common
Stock and the Plum Creek Special Voting Common Stock.
"Plum Creek Common Stock" shall mean Plum Creek's common stock, par value
$0.01 per share.
"Plum Creek Disclosure Letter" shall have the meaning set forth in Section
5.03(a).
<PAGE>
"Plum Creek ERISA Affiliate" shall have the meaning set forth in Section
5.20.
"Plum Creek Excess Stock" shall have the meaning set forth in Section
5.03(a).
"Plum Creek Material Adverse Effect" shall mean a material adverse effect
on the business, operations, assets, financial condition or results of
operations of Plum Creek and its Subsidiaries taken as a whole, but shall
exclude any material adverse effect arising out of (i) any changes in U.S.
general economic or securities markets conditions; (ii) any changes that affect
the timber industry in general; or (iii) any changes resulting from the
announcement of this Agreement, each Merger or the transactions contemplated
thereby.
"Plum Creek Material Contract" shall mean a "material contract" (as such
term is defined in Item 601(b)(10) of Regulation S-K of the SEC), which requires
expenditures or the performance of services in an amount in excess of $5 million
and is not cancellable within one year.
"Plum Creek Option" shall have the meaning set forth in Section 3.03(b).
"Plum Creek Plans" shall have the meaning set forth in Section 5.20.
"Plum Creek Preferred Stock" shall have the meaning set forth in Section
5.03(a).
"Plum Creek Real Property" shall mean all of the real property, interests
in real property and improvements that are owned, leased, or operated by Plum
Creek or any of its Subsidiaries or Affiliates.
"Plum Creek SEC Filings" shall have the meaning set forth in Section
5.05(a).
"Plum Creek Special Voting Common Stock" shall have the meaning set forth
in Section 5.03(a).
"Plum Creek Stockholder Approval" shall have the meaning set forth in
Section 5.10(a).
"Plum Creek Stockholder Meeting" shall have the meaning set forth in
Section 6.07(b).
"Preferred Stock Subsidiary" shall mean a "preferred stock subsidiary" or
any other subsidiary from which a Person that is a Real Estate Investment Trust
under the Code derives a majority of the economic benefit, but which such Person
does not control in order to comply with the rules and regulations applicable to
Real Estate Investment Trusts under the Code, whether or not such Person's
interest is held through ownership of preferred stock or through non-voting
common stock.
"Private Letter Ruling" shall have the meaning set forth in Section
7.01(e).
<PAGE>
"Redemption" shall have the meaning set forth in the second recital hereto.
"Redemption Date" shall mean the date on which the shares of Timber Group
Common Stock shall be redeemed in exchange for Units.
"Rights" shall mean, collectively (i) the rights of the holders of the
Georgia-Pacific Group Common Stock to purchase the Series B Junior Preferred
Stock of G-P issued pursuant to the Rights Agreement and (ii) the rights of the
holders of the Timber Group Common Stock to purchase the Series C Junior
Preferred Stock of G-P issued pursuant to the Rights Agreement.
"Rights Agreement" shall mean the Amended and Restated Rights Agreement
dated as of December 16, 1997, by and between G-P and First Chicago Trust
Company of New York, as Rights Agent, as amended.
"Rule 145 Affiliates" shall have the meaning set forth in Section 6.18.
"SEC" shall mean the U.S. Securities and Exchange Commission.
"Securities Act" shall mean the Securities Act of 1933, as amended.
"Separation" shall have the meaning set forth in Section 2.01(a).
"Separation Agreement" shall have the meaning set forth in Section 2.01(a).
"Solvency Opinions" shall mean the opinion of a nationally recognized
investment banking or appraisal firm in form and substance reasonably
satisfactory to the G-P Board of Directors to the effect that, after giving
effect to the Spinoff, G-P will be able to pay its debts as they come due in the
usual course of business and its total assets will exceed the sum of its total
liabilities, such opinions to be dated as of the date the G-P Board of Directors
declares the Redemption and the Redemption Date.
"Spinco" or "Spincos" shall have the meaning set forth in the preamble
hereto.
"Spinco Options" shall have the meaning set forth in Section 3.03(a).
"Spinoff" shall mean the Separation together with the Redemption.
"SPO" shall mean, collectively, PC Advisory Partners I, L.P. and PC
Intermediate Holdings, L.P.
"Subsidiary" with respect to a Person shall mean (x) any partnership of
which such Person or any of its Subsidiaries is a general partner or (y) any
other entity in which such
<PAGE>
Person or any of its Subsidiaries owns or has the power to vote more than 50% of
the equity interests in such entity having general voting power to participate
in the election of the governing body of such entity; provided, however, that a
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Preferred Stock Subsidiary shall be considered a Subsidiary for the purposes of
this Agreement whether or not such subsidiary otherwise falls within this
definition of "Subsidiary."
"Surviving Corporation" shall have the meaning set forth in Section
2.02(b).
"Tax Authority" shall mean the IRS and any other domestic or foreign
Governmental Authority responsible for the administration of any Taxes.
"Taxes" shall mean all Federal, state, local and foreign taxes, and other
assessments of a similar nature (whether imposed directly or through
withholding), including any interest, additions to tax, or penalties applicable
thereto.
"Tax Matters Agreement" shall mean the agreement substantially in the form
attached hereto as Exhibit C.
"Tax Returns" shall mean all Federal, state, local and foreign tax returns,
declarations, statements, reports, schedules, forms and information returns and
any amended Tax Return relating to Taxes.
"Timber Group" shall mean, as of any date:
(d) all assets and liabilities of G-P and its subsidiaries attributed by
the Board of Directors of G-P to the Timber Group;
(e) all properties and assets transferred to the Timber Group from the
Georgia-Pacific Group pursuant to transactions in the ordinary course of
business of the Georgia-Pacific Group and the Timber Group or otherwise as the
Board of Directors of G-P may have directed as permitted by the Articles of
Incorporation of G-P; and
(f) the interest of G-P or any of its subsidiaries in any business or
asset acquired and any liabilities assumed by G-P or any of its subsidiaries
outside of the ordinary course of business and attributed to the Timber Group,
as determined by the Board of Directors of G-P.
"Timber Group Common Stock" shall mean the Georgia-Pacific Corporation-
Timber Group Common Stock, par value $0.80 per share.
"Timber Group Equity Interest" shall have the meaning set forth in Section
4.03(a).
"Timber Group Employees" shall mean those individuals who, immediately
prior to the Redemption Date, were employees of Timber Group.
<PAGE>
"Timber Group Financial Statements" shall mean the financial statements
included in the G-P SEC Filings which reflect separately the operations, assets
and liabilities, and cash flows of the Timber Group.
"Timber Group Intellectual Property" shall have the meaning set forth in
Section 4.15(a).
"Timber Group Material Adverse Effect" shall mean a material adverse effect
on the business, operations, assets, financial condition or results of
operations of the Timber Group, taken as a whole, but shall exclude any material
adverse effect arising out of (i) any changes in U.S. general economic or
securities markets conditions; (ii) any changes that affect the timber industry
in general; or (iii) any changes resulting from the announcement of this
Agreement, each Merger or the transactions contemplated thereby.
"Timber Group Material Contract" shall have the meaning set forth in
Section 4.23.
"Timber Group Options" shall have the meaning set forth in Section 3.03(a).
"Timber Group Real Property" shall mean all of the real property,
interests in real property and improvements attributed to the Timber Group that
are owned, leased, or operated by G-P, any of the Spincos or any of their
Subsidiaries or Affiliates.
"Timber Group Shareholder Approval" shall mean the approval of the Merger
Agreement by the holders of a majority of the outstanding shares of Timber Group
Common Stock.
"Timber Group Shareholder Meeting" shall have the meaning set forth in
Section 6.07(a).
"Timber Group Timber Agreements" shall mean the agreements, in the form
attached hereto as Exhibits D-1 through D-3, with such changes as are necessary
to comply with section 631(b) of the Code, without materially altering the
economics of such agreements.
"Trading Day" shall mean any day on which securities are traded on the
NYSE.
"Transaction Termination Event" shall mean (i) the issuance of any Treasury
regulation, revenue ruling or notice of the IRS or Treasury or any other
published pronouncement, including in proposed form, (ii) the enactment or
proposal of any legislation or, (iii) based on the reasonable knowledge and
belief of any party hereto, the likelihood of the issuance of any of the
foregoing, that in any such case creates a substantial risk that principles that
are similar to those of section 1374 of the Code would apply to the cutting of
timber transferred by the Spincos to the Surviving Corporation pursuant to the
Mergers during the ten year period following the Effective Date.
<PAGE>
"Transition Services Agreement" shall mean the agreement substantially in
the form attached hereto as Exhibit E.
"Treasury" shall mean the United States Department of Treasury.
"Unit" shall have the meaning set forth in the second recital hereto.
"Voting Agreement" shall have the meaning set forth in the seventh recital
hereto.
"Voting Debt" shall have the meaning set forth in Section 4.03(a).
"WARN Act" shall have the meaning set forth in Section 4.13(c).
ARTICLE II
SPINOFF AND THE MERGERS
Section 2.01 The Spinoff.
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(a) As of the Redemption Date, the Spincos shall own all of the assets and
have assumed all of the liabilities (whether accrued, absolute, contingent or
otherwise) of the Timber Group and no other assets and liabilities (the
"Separation"). The Spincos have entered into the Separation Agreement with G-P
dated as of the date hereof (the "Separation Agreement"). A notice of redemption
shall be sent by G-P to the holders of Timber Group Common Stock (the "Notice of
Redemption") 30 "trading days" (as defined in G-P's Articles of Incorporation)
prior to the Redemption upon satisfaction or waiver of the conditions set forth
in Section 7.01, 7.02 and 7.03 hereof (excluding conditions that, by their
nature, cannot be satisfied until the date that such notice is given (the
"Notice of Redemption Date")), and subject to the satisfaction or waiver of the
conditions set forth in Section 7.04 and 7.05, the Redemption shall occur on the
last fiscal day of the month on the thirtieth trading day after the Notice of
Redemption Date.
(b) The Units shall be evidenced by the certificates formerly representing
shares of Timber Group Common Stock until exchanged for certificates
representing the consideration provided for by Section 3.01(a) in accordance
with Section 3.02 and the shares of common stock of each Spinco shall not be
separately transferrable.
Section 2.02 The Mergers.
-----------
(a) Upon the terms and subject to the conditions of this Agreement,
immediately following the Spinoff, certificates of merger (the "Certificates of
Merger") shall be duly prepared, executed and acknowledged by Plum Creek and
each of the Spincos in accordance with Section 251 of the DGCL and shall be
filed with the Secretary of State of Delaware. Each of the Mergers shall be
evidenced by separate Certificates of Merger. The consideration to be received
in connection with the Mergers shall be allocated with respect
<PAGE>
to each Spinco in an amount that will be agreed upon in good faith by the
parties hereto. The Mergers shall become effective at the opening of business on
the first Business Day following the Redemption Date as provided in such
Certificates of Merger (or at such later time reflected in such Certificates of
Merger as shall be agreed to by Plum Creek and G-P). The date and time when the
Mergers shall become effective on Business Day after the Redemption Date and is
hereinafter referred to as the "Effective Time."
(b) At the Effective Time, each Spinco shall be merged with and into Plum
Creek and the separate corporate existence of each Spinco shall cease, and Plum
Creek shall continue as the surviving corporation under the laws of the State of
Delaware (the "Surviving Corporation").
(c) At the Effective Time, the effect of the Mergers shall be as provided
in this Article II and in the applicable provisions of the DGCL.
Section 2.03 Certificate of Incorporation of the Surviving Corporation.
----------------------------------------------------------
The Certificate of Incorporation of Plum Corporation Creek as amended pursuant
to the Merger shall read in its entirety as set forth in Exhibit F and shall be
the Certificate of Incorporation of the Surviving Corporation.
Section 2.04 By-Laws of the Surviving Corporation. The By-Laws of Plum
------------------------------------
Creek, as in effect immediately prior to the Effective Time, shall be the By-
Laws of the Surviving Corporation.
Section 2.05 Directors and Officers of the Surviving Corporation. At the
---------------------------------------------------
Effective Time, the directors and Corporation officers of Plum Creek immediately
prior to the Effective Time and up to three directors designated by G-P prior to
the Effective Time who are reasonably acceptable to Plum Creek shall be the
directors and officers of the Surviving Corporation, each of such directors and
officers to hold office, subject to the applicable provisions of the DGCL and
the Certificate of Incorporation and By-Laws of the Surviving Corporation, until
the next annual stockholders' meeting of the Surviving Corporation and until
their respective successors shall be duly elected or appointed and qualified. As
soon as practicable after the Effective Time, the number of directors of the
Surviving Corporation shall be increased from eight to eleven.
Section 2.06 Closing. Subject to the terms and conditions contained in
-------
this Agreement, the closing of the Mergers (the "Closing") shall be held at the
offices of Skadden, Arps, Slate, Meagher & Flom LLP, 4 Times Square, New York,
New York 10036 on the day immediately prior to the Effective Time on which the
last of the conditions (excluding conditions that, by their nature, cannot be
satisfied until the Closing Date) set forth in Article VII hereof is satisfied
or waived or at such other time and date as the parties hereto shall agree in
writing; provided, however, that the Closing shall not occur prior to January 1,
-------- -------
2001, except as otherwise mutually agreed by the parties hereto in writing. Such
date is herein referred to as the "Closing Date."
<PAGE>
ARTICLE III
CONVERSION OF SHARES AND RELATED MATTERS
Section 3.01 Conversion of Capital Stock. At the Effective Time, by
---------------------------
virtue of of the Mergers and without any action on the part of Plum Creek, the
Spincos or the holders of any of the following securities:
(a) Each Unit, including each share of common stock of each Spinco
represented thereby, issued and outstanding immediately prior to the Effective
Time (other than any Units to be cancelled pursuant to Section 3.01(b)) shall be
converted, subject to Section 3.02(f), into the right to receive 1.37 shares of
Plum Creek Common Stock (as adjusted pursuant to Section 3.01(c), the "Exchange
Ratio"). Following the Effective Time, all Units, including each share of common
stock of each Spinco represented thereby, shall no longer be outstanding and
shall automatically be cancelled and retired and shall cease to exist. No
fractional share of Plum Creek Common Stock shall be issued, and, in lieu
thereof, a cash payment shall be made pursuant to Section 3.02(f) hereof.
(b) Each Unit owned by G-P and each Unit owned by Plum Creek or any direct
or indirect wholly owned subsidiary of Plum Creek or G-P (other than, in each
case, shares in trust accounts, managed accounts, custodial accounts and the
like that are beneficially owned by third parties) immediately prior to the
Effective Time shall be cancelled and extinguished without any conversion
thereof and no payment shall be made with respect thereto.
(c) If between the date of this Agreement and the Effective Time, the
outstanding shares of Plum Creek Common Stock or, between the date of this
Agreement and the Redemption Date, the outstanding shares of Timber Group Common
Stock shall have been changed into a different number of shares or a different
class, by reason of any stock dividend, subdivision, reclassification,
recapitalization, split, combination or exchange of shares or the record date
therefor or the effective date thereof shall be prior to the Effective Time, the
Exchange Ratio shall be correspondingly adjusted to reflect such stock dividend,
subdivision, reclassification, recapitalization, split, combination or exchange
of shares.
(d) The shares of Plum Creek Common Equity issued and outstanding
immediately prior to the Effective Time shall remain outstanding and be
unchanged in the Mergers except as contemplated by Section 2.03.
Section 3.02 Exchange of Certificates. (a) Prior to the Effective Time,
------------------------
Plum Creek shall appoint a bank or trust company reasonably acceptable to G-P as
exchange agent (the "Exchange Agent") for the purposes of exchanging the
certificates formerly representing the Timber Group Common Stock which
subsequent to the Spinoff but prior to the Effective Time evidence the Units
(each a "Certificate") for whole number of shares of Plum Creek Common Stock
into which the Units evidenced by such Certificate have been converted pursuant
to Section 3.01(a) and cash in lieu of fractional shares of Plum Creek Common
Stock in accordance with Section 3.02(f). Promptly after the Effective Time,
Plum Creek
<PAGE>
will send, or will cause the Exchange Agent to send, to each holder of record of
Timber Group Common Stock as of the Effective Time (i) a letter of transmittal
(which shall specify that delivery shall be effected, and risk of loss and title
to the Certificates shall pass, only upon delivery of the Certificates to the
Exchange Agent and shall be in customary form and have such other customary
provisions as Plum Creek may reasonably specify) and (ii) instructions for use
in effecting the surrender of Certificates in exchange for the whole number of
shares of Plum Creek Common Stock into which the Units have been converted and
cash in lieu of fractional shares of Plum Creek Common Stock.
(b) As soon as practicable but in any event no later than three Business
Days following the Effective Time, Plum Creek shall deposit with the Exchange
Agent as nominee for the benefit of the holders of Timber Group Common Stock,
certificates representing the shares of Plum Creek Common Stock (such shares of
Plum Creek Common Stock, together with cash in lieu of fractional shares and any
dividends or distributions with respect thereto, being hereinafter referred to
as the "Exchange Fund") to be issued pursuant to Section 3.01(a). The Exchange
Agent shall, pursuant to irrevocable instructions, deliver the Plum Creek Common
Stock contemplated to be issued pursuant to Section 3.01(a) out of the Exchange
Fund. Subject to Section 3.02(g), the Exchange Fund shall not be used for any
other purposes.
(c) Upon surrender of a Certificate for cancellation to the Exchange
Agent, together with the letter of transmittal referred to in Section 3.02(a),
duly executed and completed in accordance with its terms, the holder of such
Certificate shall be entitled to receive in exchange therefor (i) a certificate
or certificates representing the whole number of shares of Plum Creek Common
Stock into which the Units represented by such Certificate have been converted
in accordance with Section 3.01(a), (ii) the amount of dividends or other
distributions, if any, with a record date on or after the Effective Time which
theretofore became payable with respect to such shares of Plum Creek Common
Stock, and (iii) the cash amount payable in lieu of fractional shares of Plum
Creek Common Stock in accordance with Section 3.02(f), in each case which such
holder has the right to receive pursuant to the provisions of this Article III,
and the Certificate so surrendered shall forthwith be canceled. In no event
shall the holder of any Certificate be entitled to receive interest on any funds
to be received in the Mergers. Until surrendered as contemplated by this Section
3.02(c) and subject to Section 3.02(d), each Certificate shall, after the
Effective Time, represent for all purposes only the right to receive the whole
number of shares of Plum Creek Common Stock into which the Units represented by
such Certificate has been converted in accordance with Section 3.01(a), plus the
cash amount payable in lieu of fractional shares of Plum Creek Common Stock in
accordance with Section 3.02(f), plus the amount of dividends or other
distributions, if any, with a record date on or after the Effective Time, which
theretofore became payable with respect to such shares of Plum Creek Common
Stock.
(d) No dividends or other distributions declared, made or paid after the
Effective Time with respect to shares of Plum Creek Common Stock with a record
date on
<PAGE>
or after the Effective Time shall be paid to the holder of any unsurrendered
Certificate with respect to the shares of Plum Creek Common Stock represented
thereby and no cash payment in lieu of fractional shares of Plum Creek Common
Stock shall be paid to any such holder pursuant to Section 3.02(f) until the
holder of record of such Certificate shall surrender such Certificate in
accordance with this Section 3.02. Subject to the effect of applicable laws,
following surrender of any such Certificate, there shall be paid to the record
holder of the certificates representing shares of Plum Creek Common Stock,
without interest, (i) at the time of such surrender, the amount of dividends or
other distributions, if any, with a record date on or after the Effective Time
which theretofore became payable, but which were not paid by reason of the
immediately preceding sentence, with respect to such shares of Plum Creek Common
Stock and (ii) at the appropriate payment date, the amount of dividends or other
distributions with a record date on or after the Effective Time but prior to
surrender and a payment date subsequent to surrender payable with respect to
such shares of Plum Creek Common Stock. Dividends or other distributions with a
record date on or after the Effective Time but prior to surrender of
Certificates by holders thereof payable in respect of shares of Plum Creek
Common Stock held by the Exchange Agent shall be held in trust for the benefit
of such holders of Certificates.
(e) All shares of Plum Creek Common Stock issued upon conversion of the
Units in accordance with the terms hereof (including any cash paid pursuant to
Section 3.02(d) or (f)) shall be deemed to have been issued at the Effective
Time in full satisfaction of all rights pertaining to the Units represented
thereby. At the Effective Time, the stock transfer books of G-P solely with
respect to the shares of Timber Group Common Stock evidencing the Units shall be
closed and there shall be no further registration of transfers thereon of such
shares. If, after the Effective Time, Certificates are presented to the
Surviving Corporation for any reason, they shall be canceled and exchanged as
provided in this Section 3.02.
(f) No certificate or scrip representing fractional shares of Plum Creek
Common Stock shall be issued upon the surrender for exchange of Certificates,
and such fractional shares will not entitle the owner thereof to vote or to any
rights of a holder of shares of Plum Creek Common Stock. In lieu of any such
fractional shares of Plum Creek Common Stock, each holder of Certificates who
would otherwise have been entitled to a fraction of a share of Plum Creek Common
Stock in exchange for such Certificates (after taking into account all
Certificates delivered by such holder) pursuant to this Section 3.02 shall
receive from the Exchange Agent, as applicable, a cash payment in lieu of such
fractional share of Plum Creek Common Stock, determined by multiplying (A) the
average of the per share closing sale price of Plum Creek Common Stock, as
reported on the NYSE, on each of the twenty Trading Days ending on the third
Trading Day immediately preceding the Effective Time by (B) the fractional share
of Plum Creek Common Stock to which such holder would otherwise be entitled.
(g) Any portion of the Exchange Fund which remains undistributed to the
holders of Certificates for six (6) months after the Effective Time shall be
delivered to Plum
<PAGE>
Creek, upon demand, and any holders of Certificates who have not theretofore
complied with this Article III shall thereafter look only to Plum Creek (subject
to abandoned property, escheat and other similar laws) as a general creditor for
payment of their claim for shares of Plum Creek Common Stock, any cash in lieu
of fractional shares of Plum Creek Common Stock and any dividends or
distributions with respect to shares of Plum Creek Common Stock. Plum Creek
shall not be liable to any holder of any Certificate for shares of Plum Creek
Common Stock (or dividends or distributions with respect thereto) or cash
payable in respect of fractional shares of Plum Creek Common Stock, delivered to
a public official pursuant to any applicable abandoned property, escheat or
similar law. Any securities or cash amounts remaining unclaimed by holders of
Certificates shall immediately prior to such time as such amounts would
otherwise escheat to or become property of any Governmental Authority, to the
extent permitted by applicable law, become the property of Plum Creek free and
clear of any claims or interest of any Person previously entitled thereto.
(h) If any Certificate shall have been lost, stolen or destroyed, upon the
making of an affidavit of that fact by the Person claiming such Certificate to
be lost, stolen or destroyed and, if required by Plum Creek, the posting by such
Person of a bond in such reasonable amount as Plum Creek may direct as indemnity
against any claim that may be made against it with respect to such Certificate,
the Exchange Agent will deliver in exchange for such lost, stolen or destroyed
Certificate, the whole number of shares of Plum Creek Common Stock into which
the Units represented by such Certificate have been converted, any cash in lieu
of fractional shares of Plum Creek Common Stock, and unpaid dividends and
distributions in respect of or on shares of Plum Creek Common Stock deliverable
in respect thereof, pursuant to this Agreement.
(i) Plum Creek shall be entitled to deduct and withhold from the shares of
Plum Creek Common Stock (and any dividends or distributions thereon) and cash in
lieu of fractional shares of Plum Creek Common Stock otherwise payable hereunder
to any holder of Certificates such amounts as it is required to deduct and
withhold with respect to the making of such payment under any provision of
Federal, state, local or foreign income tax law. To the extent that Plum Creek
so withholds those amounts, such withheld amounts shall be treated for all
purposes of this Agreement as having been paid to the holder of the Certificates
in respect of which such deduction and withholding was made by Plum Creek.
Section 3.03 G-P Stock Options.
-----------------
(a) Prior to the Effective Time, G-P shall cause each outstanding option
granted to an employee of G-P or its Subsidiaries to purchase Timber Group
Common Stock ("Timber Group Options") to be amended to substitute one Unit for
each share of Timber Group Common Stock subject to such option (the "Spinco
Options").
(b) Each Spinco Option which is outstanding and unexercised immediately
prior to the Effective Time, whether or not vested or exercisable, shall be
automatically converted at the Effective Time into an option (a "Plum Creek
Option") to purchase a number of shares of Plum Creek Common Stock equal to the
number of Units subject to
<PAGE>
such Spinco Option multiplied by the Exchange Ratio (rounded to the nearest
whole number), at a price per share of Plum Creek Common Stock equal to the
per-Unit option exercise price specified in the Spinco Option divided by the
Exchange Ratio (rounded to the nearest whole cent); provided, however, that all
-------- -------
other terms and conditions of the Plum Creek Options shall continue to be
determined by reference to the applicable G-P stock plan and Timber Group
Option, provided, further, however, that all Spinco Options shall become vested
-------- ------- -------
and exercisable as of the Effective Time. From and after the Effective Time, (i)
except as otherwise provided herein, all references to G-P in the Spinco Options
shall be deemed to refer to Plum Creek and (ii) no Plum Creek Option holder
shall be deemed to have suffered a termination of employment under such plans or
agreements solely by reason of the consummation of the transactions contemplated
hereunder.
(c) In respect of those Plum Creek Option holders who do not become
employees of the Surviving Corporation at the Effective Time ("Non-Plum Creek
Optionees"), (i) any references in the Plum Creek Option to G-P as the employer
of Non-Plum Creek Optionees or to employment by Non-Plum Creek Optionees by G-P
shall not be deemed to refer to Plum Creek as the employer or to employment with
Plum Creek and (ii) G-P shall provide Plum Creek, in a timely manner, with such
information as Plum Creek shall reasonably require in order to assume its
obligations and enforce its rights under the Plum Creek Options.
(d) Plum Creek shall take all corporate action necessary to reserve for
issuance a sufficient number of shares of Plum Creek Common Stock for delivery
upon exercise of the Plum Creek Options. As promptly as reasonably practicable
after the Effective Time, Plum Creek shall issue to each holder of a Spinco
Option that was converted into a Plum Creek Option pursuant to this Section 3.03
a document evidencing the foregoing assumption by Plum Creek. At or prior to the
Effective Time, to the extent necessary to provide for registration of shares of
Plum Creek Common Stock subject to Plum Creek Options other than Plum Creek
Options held by Non-Plum Creek Optionees, Plum Creek shall file a registration
statement on Form S-8 (or other applicable or successor form), with respect to
such shares of Plum Creek Common Stock and shall use its commercially reasonable
efforts to maintain such registration statement (or other applicable or
successor form), including the current status of any related prospectus or
prospectuses, for so long as such Plum Creek Options remain outstanding. In
respect of shares of Plum Creek Common Stock subject to Plum Creek Options held
by Non-Plum Creek Optionees, Plum Creek shall file, at or prior to the Effective
Time, to the extent necessary to provide for the registration of such shares, a
registration statement on Form S-3 (or other applicable or successor form), and
shall use its commercially reasonable efforts to maintain such registration
statement (or other applicable or successor form), including the current status
of any required prospectus or prospectuses, for so long as such Plum Creek
Options remain outstanding.
(e) Prior to the Effective Time, G-P shall use commercially reasonable
efforts to take all actions (including, if appropriate, amending the terms of
G-P's stock plans) and
<PAGE>
obtain such consents as are necessary to give the effect to the transactions
contemplated by this Section 3.03.
(f) Prior to the date hereof, G-P shall take such steps to give effect to
the acceleration of the vesting and exercisability of the Spinco Options as such
is described above.
(g) In respect of those employees of the Surviving Corporation who at the
Effective Time hold options to purchase Georgia-Pacific Group Stock ("Georgia-
Pacific Options"), (i) G-P shall amend such options to extend the exercise
period to include any period of employment as an employee of the Surviving
Corporation and (ii) Plum Creek shall provide G-P, in a timely manner, with such
information as G-P shall reasonably require in order to enforce its rights under
the Georgia-Pacific Options.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF G-P
Except as otherwise set forth in the G-P Disclosure Letter specifying the
section to which it relates, G-P hereby represents and warrants to Plum Creek as
follows:
Section 4.01 Due Organization, Good Standing and Corporate Power. Each of
---------------------------------------------------
G-P and the Spincos is a Power corporation duly organized, validly existing and
in good standing under the laws of the jurisdiction of its incorporation and
each such Person has all requisite corporate power and authority to own, lease
and operate its properties and to carry on its business as now being conducted.
Each of G-P and the Spincos is duly qualified or licensed to do business and is
in good standing in each jurisdiction in which the property owned, leased or
operated by it or the nature of the business conducted by it makes such
qualification necessary, except in such jurisdictions where the failure to be so
qualified or licensed and in good standing would not reasonably be expected to
have, individually or in the aggregate, a Timber Group Material Adverse Effect.
Section 4.01 of the letter delivered by G-P to Plum Creek concurrently with the
delivery of this Agreement (the "G-P Disclosure Letter") sets forth a list of
all of the Persons holding as of the date hereof, directly or indirectly, any of
the assets and liabilities of the Timber Group and their respective
jurisdictions of incorporation or organization and identifies G-P's (direct or
indirect) percentage of equity ownership therein.
Section 4.02 Authorization and Validity of Agreement. Each of G-P and
---------------------------------------
the Spincos has full corporate power and authority to execute and deliver this
Agreement and the Separation Agreement, to perform its obligations hereunder and
thereunder and to consummate the transactions contemplated hereby and thereby.
The execution, delivery and performance of this Agreement and the Separation
Agreement by each of G-P and the Spincos, and the consummation by each of them
of the transactions contemplated hereby and thereby, have been duly authorized
and unanimously approved by their respective Boards of Directors and by G-P as
the sole stockholder of each of the Spincos and no other
<PAGE>
corporate action on the part of G-P or any of the Spincos is necessary to
authorize the execution, delivery and performance of this Agreement and the
Separation Agreement by G-P or the Spincos and the consummation of the
transactions contemplated hereby and thereby. This Agreement and the Separation
Agreement have been duly executed and delivered by each of G-P and the Spincos
and each is a valid and binding obligation of each of G-P and the Spincos
enforceable against each of G-P and the Spincos in accordance with its terms,
except to the extent that its enforceability may be subject to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
the enforcement of creditors' rights generally and by general equitable
principles.
Section 4.03 Capitalization.
--------------
(a) The authorized capital stock of G-P consists of 685,000,000 shares, of
which (i) 400,000,000 shares are designated as Georgia-Pacific Group Common
Stock, (ii) 250,000,000 shares are designated as Timber Group Common Stock,
(iii) 10,000,000 shares are designated as preferred stock, no par value per
share (the "G-P Preferred Stock"), and (iv) 25,000,000 shares are designated as
junior preferred stock, no par value per share (the "G-P Junior Preferred
Stock"). As of the date hereof: (i) 170,751,428 shares of Georgia-Pacific Group
Common Stock were issued and outstanding, (ii) 79,619,482 shares of Timber Group
Common Stock were issued and outstanding, (iii) no shares of G-P Preferred Stock
were issued and outstanding, (iv) no shares of G-P Junior Preferred Stock were
issued and outstanding, (v) 25,200,000 shares of Georgia-Pacific Group Common
Stock were reserved for issuance under G-P's stock option and stock benefit
plans and arrangements, (vi) 21,501,300 shares of Georgia-Pacific Group Common
Stock were held by G-P in its treasury, (vii) 8,400,000 shares of Timber Group
Common Stock were reserved for issuance under G-P's stock option and stock
benefit plans and arrangements and (viii) 14,387,850 shares of Timber Group
Common Stock were held by G-P in its treasury. All issued and outstanding shares
of capital stock of G-P have been duly authorized and validly issued and are
fully paid and nonassessable. Except as set forth in the immediately preceding
sentence and other than the Rights or pursuant to the Spinoff, there are no
outstanding or authorized options, warrants, rights, subscriptions, claims of
any character, agreements, obligations, convertible or exchangeable securities,
or other commitments, contingent or otherwise, relating to the Timber Group
Common Stock or any capital stock equivalent or other nominal interest in G-P or
any of its Subsidiaries which relate to the Timber Group (collectively, "Timber
Group Equity Interests") pursuant to which G-P or any of its Subsidiaries is or
may become obligated to issue shares of its capital stock or other equity
interests or any securities convertible into, exchangeable for, or evidencing
the right to subscribe for, any Timber Group Equity Interests ("Issuance
Obligation"). None of the Rights granted pursuant to the Rights Agreement have
at any time been triggered. Except for the Redemption, there are no outstanding
obligations of G-P to repurchase, redeem or otherwise acquire any outstanding
securities of Timber Group Equity Interests. G-P has no authorized or
outstanding bonds, debentures, notes or other indebtedness the holders of which
have the right to vote (or are convertible or exchangeable into or exercisable
for securities the holders of which have the right to vote) with the holders of
the Timber Group Common Stock on any matter ("Voting Debt"). Except as set forth
in Section 4.03(a) of the Disclosure Letter, there are no restrictions of any
kind which prevent or restrict the payment
<PAGE>
of dividends by G-P with respect to the Timber Group Common Stock and there are
no limitations or restrictions on the right to vote, sell or otherwise dispose
of such capital stock or other ownership interests.
(b) The authorized capital stock of each of the Spincos consists of 100
shares, par value $.01 per share. As of the date hereof, each of the Spincos had
25 shares issued and outstanding. Other than as contemplated by Section 3.03,
none of the Spincos have any shares reserved for issuance under a stock option
or stock benefit and arrangement plan. Prior to the Redemption, G-P will be the
sole stockholder of all of the issued and outstanding shares of stock of each of
the Spincos. All of the issued and outstanding shares of capital stock of each
of the Spincos are validly existing, fully paid and non-assessable. Other than
as contemplated by Section 3.03, none of the Spincos have outstanding Voting
Debt or are bound by, obligated under, or party to an Issuance Obligation with
respect to any security of the Spincos and there are no obligations of the
Spincos to repurchase, redeem or otherwise acquire any outstanding securities of
the Spincos.
(c) Except as set forth in Section 4.03(c) of the G-P Disclosure Letter or
as contemplated by this Agreement or the Separation Agreement, none of the
Spincos own, directly or indirectly, any equity or similar interest in, or any
interest convertible into or exchangeable or exercisable for any equity or
similar interest in, any corporation, partnership, joint venture, limited
liability company or other business association or entity.
Section 4.04 Consent and Approvals; No Violations. Assuming (a) the
------------------------------------
filings required under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended (the "HSR Act"), are made and the waiting periods thereunder (if
applicable) have been terminated or expired, (b) the applicable requirements of
the Securities Act and the Exchange Act are met, (c) the requirements under any
applicable state securities or blue sky laws are met, (d) the filing of the
Certificates of Merger and other appropriate merger documents, if any, as
required by the DGCL, are made, and (e) the Plum Creek Stockholder Approval, the
execution and delivery of this Agreement by each of G-P and the Spincos and the
consummation by each of G-P and the Spincos of the transactions contemplated
hereby do not and will not: (i) violate or conflict with any provision of G-P's
or the Spincos' Certificate of Incorporation or G-P's or the Spincos' By-Laws or
the comparable governing documents of any of their Subsidiaries; (ii) violate or
conflict with any statute, law, ordinance, rule or regulation (together, "Laws")
or any order, judgment, decree, writ, permit or license (together, "Orders"), of
any court, tribunal, arbitrator, authority, agency, commission, official or
other instrumentality of the United States or any domestic or foreign state,
county, city or other political subdivision (a "Governmental Authority")
applicable to G-P, the Spincos or any of their Subsidiaries or by which any of
their respective properties or assets may be bound; (iii) except as set forth in
Section 4.04(e)(iii) of the G-P Disclosure Letter, require any filing with, or
permit, consent or approval of, or the giving of any notice to, any Governmental
Authority; or (iv) result in a violation or breach of, conflict with, constitute
(with or without due notice or lapse of time or both) a default (or give rise to
any right of termination, cancellation, payment or acceleration) under, or
result in the creation of
<PAGE>
any Lien upon any of the properties or assets of the Timber Group, the Spincos
or any of their Subsidiaries under, or give rise to any obligation, right of
termination, cancellation, acceleration or increase of any obligation or a loss
of a material benefit under, any of the terms, conditions or provisions of any
note, bond, mortgage, indenture, license, franchise, permit, agreement,
contract, lease, franchise agreement or other instrument or obligation of any
kind ("Contracts") to which G-P, any of the Spincos or any of their
Subsidiaries, in each case on behalf of the Timber Group, is a party, or by
which any such Person or any of its properties or assets are bound, excluding
from the foregoing clauses (ii), (iii) and (iv) conflicts, violations, breaches,
defaults, rights of payment and reimbursement, terminations, modifications,
accelerations and creations and impositions of Liens which would not reasonably
be expected to, individually or in the aggregate, have a Timber Group Material
Adverse Effect.
Section 4.05 G-P SEC Filings; Financial Statements.
-------------------------------------
(a) G-P has timely filed all registration statements, prospectuses, forms,
reports and documents and related exhibits required to be filed by it under the
Securities Act or the Exchange Act, as the case may be, since November 1, 1997
(collectively, the "G-P SEC Filings"). The G-P SEC Filings (i) as they relate to
the Timber Group, were prepared in all material respects in accordance with the
requirements of the Securities Act or the Exchange Act, as the case may be, and
(ii) did not at the time they were filed contain any untrue statement of a
material fact with respect to the Timber Group or omit to state a material fact
required to be stated therein or necessary in order to make the statements made
therein with respect to the Timber Group, in the light of the circumstances
under which they were made, not misleading. No liabilities attributable to the
Georgia-Pacific Group as set forth in the G-P SEC Filings are attributable to
the Timber Group. No G-P Subsidiary is subject to the periodic reporting
requirements of the Exchange Act.
(b) Each of the Timber Group Financial Statements (including, in each
case, any notes thereto) contained in the G-P SEC Filings was prepared in
accordance with GAAP applied on a consistent basis throughout the periods
indicated (except as may be indicated in the notes thereto and except with
respect to unaudited statements as permitted by Form 10-Q under the Exchange Act
and to normal and recurring adjustments) and each presented fairly in all
material respects the consolidated financial position of the Timber Group as of
the respective dates thereof and for the respective periods indicated therein,
except as otherwise noted therein (subject, in the case of unaudited statements,
to normal and recurring year-end adjustments). The books and records of each of
G-P, the Spincos and their Subsidiaries as they relate to the Timber Group have
been, and are being, maintained in accordance with GAAP and any other applicable
legal and accounting requirements.
Section 4.06 No Undisclosed Liabilities. Except as and to the extent
--------------------------
set forth on the consolidated balance sheet of the Timber Group, as of 2000,
including the notes thereto, neither G-P, any of the Spincos nor any
Subsidiaries of G-P has any liabilities or obligations of any nature (whether
accrued, absolute, contingent or otherwise) relating to the Timber Group that
would be required to be reflected on a balance sheet or in the notes thereto
prepared in
<PAGE>
accordance with GAAP, except for liabilities or obligations incurred since April
1, 2000 in the ordinary course of business that would neither, individually or
in the aggregate, (i) reasonably be expected to have a Timber Group Material
Adverse Effect nor (ii) reasonably be expected to prevent or materially delay
the performance by G-P of its obligations under this Agreement, each Merger or
the transactions contemplated thereby.
Section 4.07 Information to Be Supplied.
--------------------------
(a) The Joint Proxy Statement/Prospectus and the other documents required
to be filed by G-P with the SEC in connection with the Mergers and the other
transactions contemplated hereby will comply as to form in all material respects
with the requirements of the Exchange Act and the Securities Act, as the case
may be, and will not, on the date that it is filed, on the date it is first
mailed to the shareholders of Timber Group Common Stock and stockholders of Plum
Creek and at the time of the Timber Group Shareholder Meeting and the Plum Creek
Stockholder Meeting, contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they are
made, not misleading.
(b) Notwithstanding the foregoing provisions of this Section 4.07, no
representation or warranty is made by G-P with respect to statements made or
incorporated by reference in the Merger Registration Statement or the Joint
Proxy Statement/Prospectus based on information supplied by Plum Creek expressly
for inclusion or incorporation by reference therein or based on information
which is not made in or incorporated by reference in such documents but which
should have been disclosed pursuant to Section 5.07.
Section 4.08 Absence of Certain Events. Except as expressly permitted by
-------------------------
this Agreement, since January 1, 2000, each of G-P, the Spincos and their
Subsidiaries have operated their respective Timber Group businesses only in the
ordinary course of business and there has not occurred (i) any event, occurrence
or condition which would reasonably be expected to, individually or in the
aggregate, have a Timber Group Material Adverse Effect or (ii) other than in the
ordinary course of business in a manner consistent with past practices, any
increase in the compensation of, or change of control agreement with, any
officer of G-P, the Spincos or any of their Subsidiaries or any general salary
or benefits increase to the employees of G-P, the Spincos or any of their
Subsidiaries, except those employees that will not be Timber Group Employees.
Section 4.09 Litigation. Except as set forth in Section 4.09 of the G-P
----------
Disclosure Letter, there are no investigations, actions, suits or proceedings
pending against G-P, the Spincos or any of their Subsidiaries or, to the
knowledge of G-P, threatened against G-P, the Spincos or any of their
Subsidiaries (or any of their respective properties, rights or franchises), at
law or in equity, or before or by any Federal or state commission, board,
bureau, agency, regulatory or administrative instrumentality or other
Governmental Authority or any arbitrator or arbitration tribunal, that would
reasonably be expected to have, individually or in the aggregate, a Timber Group
Material Adverse Effect, and, to the knowledge of G-P, no development has
occurred with respect to any pending or threatened action, suit or proceeding
that would reasonably be expected to have a Timber Group Material Adverse Effect
or would reasonably be expected to prevent, materially impair or
<PAGE>
materially delay the consummation of the transactions contemplated hereby.
Neither G-P, any of the Spincos nor their Subsidiaries is subject to any
judgment, order or decree entered in any lawsuit or proceeding which would
reasonably be expected to, individually or in the aggregate, have a Timber Group
Material Adverse Effect.
Section 4.10 Title to Properties; Encumbrances. Section 4.10 of the G-P
---------------------------------
Disclosure Letter sets forth a complete list of all of the material Timber Group
Real Property. Except as set forth in Section 4.10 of the G-P Disclosure Letter,
each of G-P, the Spincos and their Subsidiaries has good, valid and marketable
title to, or, in the case of leased properties and assets, valid leasehold
interests in, all tangible properties and assets of the Timber Group except
where the failure to have such good, valid and marketable title would not
reasonably be expected to, individually or in the aggregate, have a Timber Group
Material Adverse Effect; in each case subject to no Liens, except for (a) Liens
reflected in G-P's consolidated balance sheet as of April 1, 2000, (b) Liens
consisting of zoning or planning restrictions, easements, permits and other
restrictions or limitations on the use of real property or irregularities in
title thereto which do not materially detract from the value of, or impair the
use of, such property by G-P, any of the Spincos or any of their Subsidiaries in
the operation of the Timber Group, (c) Liens for current Taxes, assessments or
governmental charges or levies on property not yet due or which are being
contested in good faith and for which appropriate reserves in accordance with
GAAP have been created and (d) Liens which would not reasonably be expected to,
individually or in the aggregate, have a Timber Group Material Adverse Effect.
Except as would not reasonably be expected to, individually or in the aggregate,
have a Timber Group Material Adverse Effect, each of G-P, the Spincos and their
Subsidiaries are in compliance with the terms of all leases of tangible
properties to which they are a party and under which they are in occupancy that
relate to the operation of the Timber Group, and all such leases are in full
force and effect.
Section 4.11 Compliance with Laws.
--------------------
(a) Each of G-P, the Spincos and their Subsidiaries are in compliance with
all applicable Federal, state, local and foreign statutes, laws, regulations,
orders, judgments and decrees except where the failure to so comply would not
reasonably be expected to, individually or in the aggregate, have a Timber Group
Material Adverse Effect.
(b) Except as set forth in Section 4.11(b) of the G-P Disclosure Letter,
each of G-P, the Spincos and their Subsidiaries hold, to the extent legally
required, all Federal, state, local and foreign permits, approvals, licenses,
authorizations, certificates, rights, exemptions and orders from Governmental
Authorities (the "Permits") that are required for the operation of the Timber
Group by G-P, the Spincos and their Subsidiaries as now conducted, except where
the failure to hold any such Permit would not reasonably be expected to,
individually or in the aggregate, have a Timber Group Material Adverse Effect,
and there has not occurred any default under any such Permit, except to the
extent that such default would not reasonably be expected to, individually or in
the aggregate, have a Timber Group Material Adverse Effect.
Section 4.12 G-P Employee Benefit Plans. Except as would not pertain
--------------------------
to or materially affect the Timber Group:
<PAGE>
(a) Section 4.12(a) of the G-P Disclosure Letter contains a true and
complete list of each employment, bonus, deferred compensation, incentive
compensation, stock purchase, stock option, stock appreciation right or other
stock-based incentive, severance, change-in-control, or termination pay,
hospitalization or other medical, disability, life or other insurance,
supplemental unemployment benefits, profit-sharing, pension, or retirement plan,
program, agreement or arrangement and each other employee benefit plan, program,
agreement or arrangement, sponsored, maintained or contributed to or required to
be contributed to by G-P, the Spincos or any of their subsidiaries, or by any
trade or business, whether or not incorporated (an "ERISA Affiliate"), that
together with G-P or any of its subsidiaries would be deemed a "single employer"
within the meaning of Section 4001(b)(1) of the Employee Retirement Income
Security Act of 1974 ("ERISA"), for the benefit of any current or former
employee or director of a Spinco or any Spinco subsidiary, whether formal or
informal and whether legally binding or not (the "Spinco Plans").
(b) With respect to each Spinco Plan, G-P has made available or will make
available to Plum Creek a current, accurate and complete copy thereof and, to
the extent applicable: (i) the most recent determination letter, (ii) any
summary plan description and (iii) for the two most recent years (A) the form
5500 and attached schedules, (B) audited financial statements and (C) actuarial
valuation reports.
(c) The Spinco Plans are in compliance in all material respects with all
applicable requirements of ERISA, the Code, and other applicable laws and have
been administered in accordance with their terms and such laws, except where the
failure to so comply would not reasonably be expected to have a Timber Group
Material Adverse Effect. Each Spinco Plan which is intended to be qualified
within the meaning of Section 401 of the Code has received a favorable
determination letter as to its qualification, and, to the knowledge of G-P,
nothing has occurred that would reasonably be expected to affect such
qualification.
(d) There are no pending, or to the knowledge of G-P, threatened claims
and no pending or, to the knowledge of the Spincos, threatened litigation with
respect to any Spincos Plans that would reasonably be expected to have a Timber
Group Material Adverse Effect, other than ordinary and usual claims for benefits
by participants and beneficiaries.
(e) No liability under Title IV of ERISA has been incurred by G-P, any of
its Subsidiaries or any ERISA Affiliate since the Effective Date of ERISA that
has not been satisfied in full, and no condition exists that presents a material
risk to G-P, the Spincos or any of their subsidiaries or any ERISA Affiliate of
incurring any liability under such Title, other than liability for premiums due
to the Pension Benefit Guaranty Corporation ("PBGC"), which payments have been
or will be made when due, that would reasonably be expected to have a Timber
Group Material Adverse Effect. G-P shall take such steps as are necessary to
prevent Spinco assets from being subject to a lien as a result of any liability
G-P or any ERISA Affiliate may incur under Title IV of ERISA. To the extent this
representation applies to Sections 4064, 4069 or 4204 of Title IV of ERISA, it
is made not
<PAGE>
only with respect to the Plans but also with respect to any employee benefit
plan, program, agreement or arrangement subject to Title IV of ERISA to which G-
P, the Spincos, any of their subsidiaries or any ERISA Affiliate made, or was
required to make, contributions during the past six years.
(f) No lien has been imposed under section 412(n) of the Code or Section
302(f) of ERISA on the assets of G-P, any of the Spincos, any of their
subsidiaries or any ERISA Affiliate, and no event or circumstance has occurred
that is reasonably likely to result in the imposition of any such lien on any
such assets on account of any Spinco Plan.
(g) Except for liabilities that would not reasonably be expected to have a
Timber Group Material Adverse Effect, with respect to any Spinco Plan that is a
"multiemployer pension plan," as such term is defined in Section 3(37) of ERISA,
(i) neither G-P, any of its subsidiaries nor any ERISA Affiliate has, since
September 26, 1980, made or suffered a "complete withdrawal" or a "partial
withdrawal," (as such terms are respectively defined in Sections 4203 and 4205
of ERISA) pursuant to which all liability in respect thereof has not been
satisfied, (ii) no event (including the transactions contemplated hereunder) is
reasonably expected to occur that presents a material risk of a complete or
partial withdrawal, and (iii) neither G-P, the Spincos, each of their
subsidiaries nor any ERISA Affiliate has any contingent material liability under
Section 4204 of ERISA.
Section 4.13 Employment Relations.
--------------------
(a) Except as would not reasonably be expected to, individually or in the
aggregate, have a Timber Group Material Adverse Effect or as set forth in
Section 4.13(a) of the G-P Disclosure Letter, (i) neither G-P, the Spincos or
any Subsidiary is a party to any collective bargaining agreement or other labor
union contract with respect to any employee of the Timber Group, (ii) there are
no organizational campaigns, demands or proceedings pending or, to G-P's
knowledge, threatened by any labor organization or group of employees seeking
recognition or certification as collective bargaining representatives of any
group of employees of the Timber Group, and (iii) there are no strikes,
controversies, slowdowns, work stoppages or material labor disputes, or, to G-
P's knowledge, threatened involving any site of employment of the Timber Group.
A true and correct list of the employees employed exclusively with respect to
the Timber Group as of the date hereof is attached as Exhibit 2.1(b) to the
Human Resources Agreement.
(b) Except as would not pertain to or affect the Timber Group or as set
forth in the G-P Disclosure Letter, each of G-P and its Subsidiaries is, and has
at all times been, in material compliance with all applicable laws respecting
employment and employment practices, terms and conditions of employment, wages,
hours of work and occupational safety and health, and is not engaged in any
unfair labor practices as defined in the National Labor Relations Act or other
applicable law, ordinance or regulation. Except as set forth in Section 4.09 of
the Gulf Disclosure Letter, to the knowledge of G-P, there are no complaints,
controversies, charges, investigations, lawsuits or other proceedings relating
to the Timber Group pending in any court or with any agency responsible for the
enforcement
<PAGE>
of Federal, state, local or foreign labor or employment laws regarding breach of
any express or implied contract or employment, any law or regulation governing
employment or the termination thereof or other discriminatory, wrongful or
tortious conduct in connection with the employment relationship.
(c) Except as would not pertain to or affect the Timber Group, since
January 1, 2000, neither G-P nor any of its Subsidiaries has effectuated (i) a
"plant closing" as defined in the Worker Adjustment and Retraining Notification
Act of 1988 (the "WARN Act") affecting any site of employment or one or more
facilities or operating units within any site of employment or facility of G-P
or any of its Subsidiaries, or (ii) a "mass layoff" (as defined in the WARN Act)
affecting any site of employment or facility of G-P or any of its Subsidiaries;
nor has G-P nor any of its Subsidiaries been affected by any transaction or
engaged in layoffs or employment terminations sufficient in number to trigger
application of any similar state or local law.
Section 4.14 Taxes. Except as otherwise set forth in Section 4.14 of
-----
the G-P Disclosure Letter:
(a) G-P and each of its Subsidiaries and each of its Affiliated Entities:
(i) have timely paid or caused to be paid all material Taxes
required to be paid by it. The accruals for Taxes payable in G-P's most recent
consolidated financial statements are adequate to cover all material Taxes
attributable to periods (or portions thereof) ending on the date of such
financial statements, and no material Taxes attributable to periods following
the date of such financial statements have been incurred other than in the
ordinary course of business;
(ii) have filed or caused to be filed in a timely manner all material
Tax Returns required to be filed by such entities with the appropriate Tax
Authority in all jurisdictions in which Tax Returns are required to be filed,
and all such Tax Returns are true, correct and complete in all material
respects; and
(iii) have not requested or caused to be requested any extension of
time within which to file any material Tax Return, which Tax Return has not
since been filed.
(b) There are no pending material Tax audits relating to G-P or any of its
Subsidiaries and no waivers of statutes of limitations have been given or
requested by G-P or any of its Subsidiaries that are currently outstanding. All
tax years for the consolidated Federal income tax group of which G-P is the
common parent have been closed up to and including the year ending on December
31, 1996.
(c) No Liens for Taxes have been filed against G-P or any of its
Subsidiaries, except for Liens for Taxes not yet due or payable for which
adequate reserves have been provided for in the latest balance sheet of G-P.
<PAGE>
(d) No unresolved deficiencies or additions to Taxes have been proposed,
asserted, or assessed against G-P or any of its Subsidiaries.
(e) Neither G-P nor any of its Subsidiaries has received notice within the
last three years from any Tax Authority in a jurisdiction in which G-P or any of
its Subsidiaries does not file Tax Returns that G-P or any of its Subsidiaries
is or may be subject to taxation by that jurisdiction.
(f) Neither G-P nor any of its Subsidiaries is (i) a party to any Tax
sharing, Tax allocation or similar agreement, or (ii) bound by any closing
agreement, offer in compromise or other agreement with any Tax Authority.
(g) The facts, representations, and other information contained and
referred to in G-P's request, dated March 16, 2000, for rulings from the IRS
concerning certain intra-group restructuring transactions, including all
exhibits thereto, were true, correct and complete when the ruling request was
filed and to the date hereof.
Section 4.15 Intellectual Property. Except as would not, individually or
---------------------
in the aggregate, reasonably be expected to have a Timber Group Material Adverse
Effect:
(a) G-P, the Spincos or their Subsidiaries own, without material
restrictions, or are licensed to use, the rights to all patents, trademarks,
trade names, service marks, copyrights together with any registrations and
applications therefor, Internet domain names, net lists, schematics,
inventories, technology, trade secrets, source codes, know-how, computer
software programs or applications including, without limitation, all object and
source codes and tangible or intangible proprietary information or material that
are used in the operation of the Timber Group (the "Timber Group Intellectual
Property"). Section 4.15(a) of the G-P Disclosure Letter sets forth a complete
list of all of the material Timber Group Intellectual Property. Neither G-P, the
Spincos nor any of its Subsidiaries is, or as a result of the execution,
delivery or performance of G-P's obligations hereunder will be, in violation of,
or lose any rights pursuant to, any Timber Group Intellectual Property.
(b) No material claims with respect to the Timber Group Intellectual
Property have been asserted or, to the knowledge of G-P, are threatened by any
Person nor does G-P or any of its Subsidiaries know of any valid grounds for any
bona fide claims against the use by G-P or any of its Subsidiaries of any of the
Timber Group Intellectual Property, or challenging the ownership, validity,
enforceability or effectiveness of any of the Timber Group Intellectual
Property. All granted and issued patents and all registered trademarks and
service marks and all copyrights held by G-P or any of its Subsidiaries that are
included in the Timber Group Intellectual Property are valid, enforceable and
subsisting. To G-P's knowledge, there has not been and there is not any
unauthorized use, material infringement or misappropriation of any of the Timber
Group Intellectual Property by any third Person, including, without limitation,
any employee or former employee.
<PAGE>
(c) No Timber Group Intellectual Property is subject to any outstanding
order, judgment, decree, stipulation or agreement restricting in any manner the
licensing thereof by G-P or any of its Subsidiaries.
(d) At the Effective Time, the Spincos collectively shall own or be
licensed to use all of the Timber Group Intellectual Property.
Section 4.16 Environmental Matters. Except as specifically set forth in
---------------------
Section 4.16 of the G-P Disclosure Letter or except as would not pertain to or
affect the Timber Group:
(a) G-P is in material compliance with all Environmental Laws. Such
compliance includes, but is not limited to, the possession by G-P of all permits
and other governmental authorizations required under all applicable
Environmental Laws, and compliance with the terms and conditions thereof. All
permits and other governmental authorizations currently held by G-P pursuant to
the Environmental Laws are identified in Section 4.16(a) of the G-P Disclosure
Letter.
(b) G-P has not received and there does not remain pending any
communication or notice, whether from a Governmental Authority, citizens group,
employee or otherwise, that alleges that G-P is not in compliance with any
Environmental Laws, and there are no circumstances that may materially prevent
or interfere with such compliance in the future.
(c) There is no Environmental Claim relating to the Timber Group Real
Property or the operations currently conducted or proposed to be conducted
thereon that is pending or threatened against G-P or against any Person or
entity whose liability for any Environmental Claim G-P has retained or assumed
either contractually or by operation of law.
(d) There are no past or present actions, activities, circumstances,
conditions, events or incidents, including, without limitation, the release,
emission, discharge, presence or disposal of any Material of Environmental
Concern, that would reasonably be expected to form the basis of any material
Environmental Claim against G-P or against any Person or entity whose liability
for any Environmental Claim G-P has retained or assumed either contractually or
by operation of law.
(e) Without in any way limiting the generality of the foregoing, (i) all
material on-site and off-site locations where G-P has (previously or currently)
stored, disposed or arranged for the disposal of Materials of Environmental
Concern are identified in Section 4.16(e)(i) of the G-P Disclosure Letter, and
(ii) all material underground storage tanks, and the capacity and contents of
such tanks, located on (x) any property owned or (y) leased or any other
property used by G-P that are operated or controlled by G-P, are identified in
Section 4.16(e)(ii) of the G-P Disclosure Letter.
<PAGE>
(f) G-P has provided or otherwise made available to Plum Creek all
material assessments, reports, data, results of investigations or audits, and
other information that is in the possession of or reasonably available to G-P
regarding environmental matters pertaining to, or the environmental condition
of, the business of G-P, or the compliance (or noncompliance) by G-P with any
Environmental Laws in each of the foregoing as related to the Timber Group.
(g) G-P is not required by virtue of the transactions set forth herein and
contemplated hereby, or as a condition to the effectiveness of any transactions
contemplated hereby, (i) to perform a site assessment for Materials of
Environmental Concern, (ii) to remove or remediate Materials of Environmental
Concern, (iii) to give notice to or receive approval from any Governmental
Authority pertaining to environmental matters, or (iv) to record or deliver to
any Person or entity any disclosure document or statement pertaining to
environmental matters.
Section 4.17 State Takeover Statutes. The provisions of Section 14-2-
-----------------------
1132 of the GCC are inapplicable to each Merger, this Agreement and the
transactions contemplated hereby. The Board of Directors of G-P has unanimously
approved this Agreement and the transactions contemplated hereby, including the
Mergers, and has taken all appropriate action so that the transactions
contemplated by this Agreement will be effected in accordance with the
provisions of Section 14-2-1110 through 14-2-1133 of the GCC. Each of the Board
of Directors of the Spincos has approved the Mergers and this Agreement and such
approvals are sufficient to render inapplicable to the Mergers, this Agreement
and the transactions contemplated hereby the provisions of Section 203 of the
DGCL.
Section 4.18 Voting Requirements; Board Approval; Appraisal Rights.
-----------------------------------------------------
(a) The affirmative vote of G-P as the sole stockholder of each of the
Spincos is the only vote of any class of capital stock of G-P or any of its
Subsidiaries necessary to approve this Agreement, the Mergers and the
transactions contemplated hereby.
(b) The Board of Directors of G-P has (i) determined that the Mergers are
advisable and fair to, and in the best interests of G-P and its shareholders,
taken as a whole, (ii) approved this Agreement and the transactions contemplated
hereby, (iii) resolved to recommend that the holders of Timber Group Common
Stock approve and adopt this Agreement and (iv) approved the Spinoff.
(c) The Board of Directors of each Spinco has approved this Agreement and
the transactions contemplated hereby. G-P, as sole stockholder of each of the
Spincos, has approved this Agreement, the Mergers and the transactions
contemplated hereby.
(d) No holder of G-P Common Stock and no holder of a Unit will have
appraisal rights under Section 14-2-1301 of the GCC or Section 262 of the DGCL
as a result of, or in connection with this Agreement, each Merger and the
transactions contemplated hereby.
<PAGE>
Section 4.19 Opinion of Financial Advisor. G-P has received the opinion
----------------------------
of Morgan Stanley & Co. Incorporated to the effect that, as of the date of this
Agreement (i) the Spinoff and the Mergers are fair to G-P from a financial point
of view and (ii) the Exchange Ratio is fair to the holders of Timber Group
Common Stock from a financial point of view, and a copy of such opinion has been
delivered to Plum Creek.
Section 4.20 Rights Agreement. G-P has amended the Rights Agreement to
----------------
provide that (i) neither Plum Creek nor any of its "Affiliates" or "Associates"
(as such terms are defined in the Rights Agreement) shall be deemed an
"Acquiring Person" (as defined in the Rights Agreement) as a result of either
the execution and delivery of this Agreement or the consummation of the
transactions contemplated thereby, and (ii) the provisions of Section 11(q) of
the Rights Agreement shall not apply to the Redemption.
Section 4.21 Insurance. Section 4.21 of the G-P Disclosure Letter sets
---------
forth a complete list of all of the insurance policies held by G-P, the Spincos
or their respective Subsidiaries that insure any assets of the Timber Group. G-P
maintains insurance coverage for the Timber Group with reputable insurers in
such amounts and covering such risks as are in accordance with normal industry
practice for companies engaged in business similar to that of G-P.
Section 4.22 Transactions with Affiliates. Except as set forth in
----------------------------
Section 4.22 of the G-P Disclosure Letter or as otherwise disclosed in the G-P
SEC filings, since December 31, 1997, there have been no transactions,
agreements, arrangements or understandings between G-P or its Subsidiaries, on
the one hand, and G-P's Affiliates (other than wholly-owned Subsidiaries of G-P)
or other Persons, on the other hand, pertaining to or affecting the Timber
Group, that would be required to be disclosed under Item 404 of Regulation S-K
under the Securities Act.
Section 4.23 Material Contracts. Except as disclosed in or attached as
------------------
exhibits to the G-P SEC Filings or as disclosed in Section 4.23 of the G-P
Disclosure Letter, neither G-P, any of the Spincos nor any of their Subsidiaries
is a party to or bound by any contract, arrangement, commitment or understanding
(whether written or oral), (a) as of the date hereof, which is a "material
contract" (as such term is defined in Item 601(b)(10) of Regulation S-K of the
SEC) pertaining to or affecting in any material respect the Timber Group, which
requires expenditures or the performance of services in an amount in excess of
$5 million and is not cancellable within one year, that has not been filed or
incorporated by reference in the G-P SEC Filings, (b) which contains any
material non-compete provisions with respect to any line of business or
geographic area in which the Timber Group business is conducted or which
restricts the conduct of G-P, any of the Spincos or any of their Subsidiaries
with respect to any Timber Group business conducted by G-P, any of the Spincos
or any of their Subsidiaries or any geographic area in which G-P, any of the
Spincos or any of their Subsidiaries may conduct Timber Group business, in each
case in any material respect, or (c) which would prohibit or materially delay
the consummation of the Mergers or any of the transactions contemplated by this
Agreement. Each contract, arrangement, commitment or understanding of the type
described in this Section 4.23, whether or not set forth in Section 4.23 of the
G-P Disclosure Letter, is referred to herein as a "Timber Group Material
Contract." Each Timber Group Material Contract is valid and binding on G-P, the
Spincos or any of their Subsidiaries, as applicable, and in full force and
<PAGE>
effect, and G-P, the Spincos and their Subsidiaries have in all material
respects performed all obligations required to be performed by them to date
individually or in the aggregate, except for violations or defaults that would
not reasonably be expected to have a Timber Group Material Adverse Effect.
Neither G-P, any of the Spincos nor any of their Subsidiaries knows of, or has
received notice of, any violation or default under (nor to their knowledge does
there exist any condition which with the passage of time or the giving of notice
would cause such a violation of or default under) any Timber Group Material
Contract or any other Contract to which it is a party or by which it or any of
its properties or assets is bound, except for violations or defaults that would
not, individually or in the aggregate, reasonably be expected to have a Timber
Group Material Adverse Effect.
Section 4.24 Redemption. Upon completion of the Redemption, the Spincos
----------
collectively will hold all of the assets and have assumed all of the liabilities
(whether accrued, absolute, contingent or otherwise) attributed to the Timber
Group. As of July 1, 2000, the aggregate outstanding indebtedness attributed to
the Timber Group was $1.027 billion. Between July 1, 2000 and the date hereof,
G-P and its Subsidiaries have incurred no indebtedness for borrowed money
attributable to the Timber Group other than borrowings in the ordinary course of
business.
Section 4.25 Policies with Respect to Allocation of Expenses. G-P has
-----------------------------------------------
provided Plum Creek with a copy of Expenses all written management and
allocation policies adopted by the G-P Board of Directors since November 1, 1997
and a summary of the methodology used in implementing those policies (the
"Allocation Policies").
Section 4.26 Disclosure. No representation or warranty by G-P contained
----------
in this Agreement and no statement contained in any document (including
financial statements and the G-P Disclosure Letter), certificate, or other
writing furnished or to be furnished by G-P to Plum Creek or any of its
representatives pursuant to the provisions hereof or in connection with this
Agreement and the transactions contemplated thereby, contains or will contain
any untrue statement of material fact or omits or will omit to state any
material fact necessary, in light of the circumstances under which it was made,
in order to make the statements herein or therein not misleading.
Section 4.27 Broker's or Finder's Fee. Except for the fees of Morgan
------------------------
Stanley & Co. Incorporated, no agent, broker, Person or firm acting on behalf of
G-P is, or will be, entitled to any investment banking or broker's or finder's
fees from any of the parties hereto, or from any Person controlling, controlled
by, or under common control with any of the parties hereto, in connection with
this Agreement or any of the transactions contemplated hereby. G-P has provided
Plum Creek a copy of the Morgan Stanley & Co. Incorporated engagement letter
with G-P and such engagement letter will not be amended without the consent of
Plum Creek.
Section 4.28 Solvency. (a) The consummation of the transactions
--------
contemplated hereby will not cause G-P to be unable to pay its debts as they
come due in the usual course of business or cause its total assets to become
less than the sum of its total liabilities in accordance with Section 14-2-640
of the GCC.
(a) G-P shall use its commercially reasonable efforts to obtain the
Solvency Opinions.
<PAGE>
Section 4.29 Installment Note. On or about June 24, 2000, if the
----------------
installment note received in connection with the sale of the Fort Bragg
timberlands (the "Fort Bragg Note") were to be monetized at that point in time
based upon the then existing facts and circumstances, G-P believes that the
proceeds from such monetization would have been not less than $350 million, and
the interest earned on the Fort Bragg Notes would have been greater than or
equal to the interest paid on the note issued in such monetization.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF PLUM CREEK
Except as otherwise set forth in the Plum Creek Disclosure Letter
specifying the section to which it relates, Plum Creek hereby represents and
warrants to G-P and the Spincos as follows:
Section 5.01 Due Organization, Good Standing and Corporate. Plum Creek
---------------------------------------------
is a corporation duly Power organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation and has all requisite
corporate power and authority to own, lease and operate its properties and to
carry on its business as now being conducted. Plum Creek is duly qualified or
licensed to do business and is in good standing in each jurisdiction in which
the property owned, leased or operated by it or the nature of the business
conducted by it makes such qualification necessary, except in such jurisdictions
where the failure to be so qualified or licensed and in good standing would not
reasonably be expected to have, individually or in the aggregate, a Plum Creek
Material Adverse Effect.
Section 5.02 Authorization and Validity of Agreement. Plum Creek has
---------------------------------------
full corporate power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and, subject to obtaining the Plum Creek
Stockholder Approval, to consummate the transactions contemplated hereby. The
execution, delivery and performance of this Agreement by Plum Creek, and the
consummation by Plum Creek of the transactions contemplated hereby, have been
duly authorized and unanimously approved by the Board of Directors of Plum Creek
and no other corporate action on the part of Plum Creek is necessary to
authorize the execution, delivery and performance of this Agreement by Plum
Creek and the consummation of the transactions contemplated hereby other than
obtaining the Plum Creek Stockholder Approval. This Agreement has been duly
executed and delivered by Plum Creek and is a valid and binding obligation of
Plum Creek, enforceable against Plum Creek in accordance with its terms, except
to the extent that its enforceability may be subject to applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting the
enforcement of creditors' rights generally and by general equitable principles.
Section 5.03 Capitalization.
--------------
(a) The authorized capital stock of Plum Creek consists of 525,634,567
shares of which (i) 300,000,000 shares are designated Plum Creek Common Stock,
(ii) 634,566 shares are designated special voting common stock, par value $0.01
per share ("Plum Creek Special Voting Common Stock"), (iii) 150,000,001 shares
are designated excess stock, par
<PAGE>
value $0.01 per share ("Plum Creek Excess Stock"), and (iv) 75,000,000 shares
designated preferred stock, par value $0.01 per share ("Plum Creek Preferred
Stock"). As of the date hereof: (i) 68,572,009 shares of Plum Creek Common Stock
were issued and outstanding, (ii) 3,425,000 shares of Plum Creek Common Stock
were reserved for issuance under Plum Creek's stock option and stock benefit
plans and arrangements, (iii) 634,566 shares of Plum Creek Special Voting Common
Stock were issued and outstanding; (iv) no shares of Plum Creek Special Voting
Common Stock were reserved for issuance under Plum Creek's stock option and
stock benefit plans and arrangements, (v) no shares of Plum Creek Excess Stock
were issued and outstanding and (vi) no shares of Plum Creek Preferred Stock
were issued and outstanding. All issued and outstanding shares of capital stock
of Plum Creek are, and all shares of Plum Creek Common Stock to be issued
hereunder will be, upon issuance, duly authorized, validly issued, fully paid
and nonassessable. Except as set forth in the preceding sentence or as set forth
in Section 5.03(a) of the letter delivered by Plum Creek to G-P concurrently
with the delivery of this Agreement (the "Plum Creek Disclosure Letter"), (i)
Plum Creek is not bound by, obligated under, or party to an Issuance Obligation
with respect to any security of Plum Creek or any Subsidiary of Plum Creek and
(ii) there is no outstanding Voting Debt of Plum Creek. There are no outstanding
obligations of Plum Creek to repurchase, redeem or otherwise acquire any
outstanding securities of Plum Creek. Except as set forth in Section 5.03(a) of
the Plum Creek Disclosure Letter, there are no restrictions of any kind which
prevent or restrict the payment of dividends by Plum Creek or any of its
Subsidiaries and there are no limitations or restrictions on the right to vote,
sell or otherwise dispose of such capital stock or other ownership interests.
(b) All of the issued and outstanding shares of capital stock of each of
Plum Creek's Subsidiaries are validly existing, fully paid and non-assessable.
No Subsidiary of Plum Creek has outstanding Voting Debt and no Subsidiary of
Plum Creek is bound by, obligated under, or party to an Issuance Obligation with
respect to any security of Plum Creek or any Subsidiary of Plum Creek and there
are no obligations of Plum Creek or any of its Subsidiaries to repurchase,
redeem or otherwise acquire any outstanding securities of any of its
Subsidiaries or any capital stock of, or other ownership interests in, any of
its Subsidiaries.
(c) Except as set forth in Section 5.03(c) of the Plum Creek Disclosure
Letter, Plum Creek does not directly or indirectly own any equity or similar
interest in, or any interest convertible into or exchangeable or exercisable for
any equity or similar interest in, any corporation, partnership, joint venture,
limited liability company or other business association or entity which is
material to Plum Creek and its Subsidiaries, taken as a whole.
(d) Plum Creek does not directly or indirectly own any equity securities
of G-P.
Section 5.04 Consents and Approvals; No Violations. Assuming (a) the
-------------------------------------
filings required under the HSR Act are made and the waiting periods thereunder
(if applicable) have been terminated or expired, (b) the applicable requirements
of the Securities Act and the Exchange Act are met, (c) the requirements under
any applicable state securities or blue
<PAGE>
sky laws are met, (d) the requirements of the NYSE and the PE in respect of the
listing of the shares of Plum Creek Common Stock to be issued hereunder are met,
(e) the filing of the Certificates of Merger and other appropriate merger
documents, if any, as required by the DGCL, are made, and (f) the valid waiver
and consent of SPO of its voting rights as holder of the Plum Creek Special
Voting Common Stock, the execution and delivery of this Agreement by Plum Creek
and the consummation by Plum Creek of the transactions contemplated hereby do
not and will not: (i) violate or conflict with any provision of Plum Creek's
Certificate of Incorporation or Plum Creek's By-Laws or the comparable governing
documents of any of its Subsidiaries; (ii) violate or conflict with any Laws or
Orders of any Governmental Authority applicable to Plum Creek or any of its
Subsidiaries or by which any of their respective properties or assets may be
bound; (iii) except as set forth in Section 5.04(f)(iii) of the Plum Creek
Disclosure Letter, require any filing with, or permit, consent or approval of,
or the giving of any notice to, any Governmental Authority; or (iv) result in a
violation or breach of, conflict with, constitute (with or without due notice or
lapse of time or both) a default under, or give rise to any right of
termination, cancellation or acceleration, or result in the creation of any Lien
upon any of the properties or assets of Plum Creek or any of its Subsidiaries
under, or give rise to any obligation, right of termination, cancellation,
acceleration or increase of any obligation or a loss of a material benefit
under, any of the terms, conditions or provisions of any Contracts to which Plum
Creek or any of its Subsidiaries is a party, or by which any such Person or any
of its properties or assets are bound, excluding from the foregoing clauses
(ii), (iii) and (iv) conflicts, violations, breaches, defaults, rights of
payment and reimbursement, terminations, modifications, accelerations and
creations and impositions of Liens which would not reasonably be expected to,
individually or in the aggregate, have a Plum Creek Material Adverse Effect.
Section 5.05 Plum Creek SEC Filings; Financial Statements.
--------------------------------------------
(a) Plum Creek has timely filed all registration statements, prospectuses,
forms, reports and documents and related exhibits required to be filed by it
under the Securities Act or the Exchange Act, as the case may be, since December
31, 1997 (collectively, the "Plum Creek SEC Filings"). The Plum Creek SEC
Filings (i) were prepared in all material respects in accordance with the
requirements of the Securities Act or the Exchange Act, as the case may be, and
(ii) did not at the time they were filed contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary in order to make the statements made therein, in the light of the
circumstances under which they were made, not misleading. No Plum Creek
Subsidiary is subject to the periodic reporting requirements of the Exchange
Act.
(b) Each of the consolidated financial statements of Plum Creek
(including, in each case, any notes thereto) contained in the Plum Creek SEC
Filings was prepared in accordance with GAAP applied on a consistent basis
throughout the periods indicated (except as may be indicated in the notes
thereto and except with respect to unaudited statements as permitted by Form 10-
Q under the Exchange Act and to normal and recurring adjustment) and each
presented fairly in all material respects the consolidated financial position of
Plum Creek and the consolidated Plum Creek's Subsidiaries as of the respective
dates thereof and for the respective periods indicated therein, except as
otherwise noted
<PAGE>
therein (subject, in the case of unaudited statements, to normal and recurring
year-end adjustments). The books and records of Plum Creek and its Subsidiaries
have been, and are being, maintained in accordance with GAAP and any other
applicable legal and accounting requirements.
Section 5.06 No Undisclosed Liabilities. Except as and to the extent set
--------------------------
forth on the consolidated balance sheet of Plum Creek as of March 31, 2000
included in Plum Creek's Form 10-Q for the period ended March 31, 2000,
including the notes thereto, neither Plum Creek nor any of its Subsidiaries has
any liabilities or obligations of any nature (whether accrued, absolute,
contingent or otherwise) that would be required to be reflected on a balance
sheet or in the notes thereto prepared in accordance with GAAP, except for
liabilities or obligations incurred since April 1, 2000 in the ordinary course
of business that would neither, individually or in the aggregate, (i) reasonably
be expected to have a Plum Creek Material Adverse Effect nor (ii) reasonably be
expected to prevent or materially delay the performance of its obligations under
this Agreement, the Mergers or the transactions contemplated thereby.
Section 5.07 Information to Be Supplied.
--------------------------
(a) Each of the Joint Proxy Statement/Prospectus registration statement on
Form S-4 to be filed with the SEC by Plum Creek in connection with the issuance
of Plum Creek Common Stock in the Mergers, as amended or supplemented from time
to time (as so amended and supplemented, the "Merger Registration Statement")
and the other documents required to be filed by Plum Creek with the SEC in
connection with the Mergers and the other transactions contemplated hereby will
comply as to form, in all material respects, with the requirements of the
Exchange Act and the Securities Act, as the case may be, and will not, on the
date of its filing or, in the case of the Merger Registration Statement, at the
time it becomes effective under the Securities Act, or on the dates the Joint
Proxy Statement/Prospectus is mailed to the shareholders of the Timber Group
Common Stock and the stockholders of Plum Creek Common Equity and at the time of
the G-P Shareholder Meeting and Plum Creek Stockholder Meeting, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein, in
light of the circumstances under which they are made, not misleading.
(b) Notwithstanding the foregoing provisions of this Section 5.07, no
representation or warranty is made by Plum Creek with respect to statements made
or incorporated by reference in the Merger Registration Statement based on
information supplied by G-P expressly for inclusion or incorporation by
reference therein or based on information which is not made in or incorporated
by reference in such documents but which should have been disclosed pursuant to
Section 4.07.
Section 5.08 Absence of Certain Events. Except as disclosed in Section
-------------------------
5.08 of the Plum Creek Disclosure Letter or as required or expressly permitted
by this Agreement, since January 1, 2000, Plum Creek and its Subsidiaries have
operated their respective businesses only in the ordinary course of business and
there has not occurred (i) any event, occurrence
<PAGE>
or conditions which would reasonably be expected to, individually or in the
aggregate, have a Plum Creek Material Adverse Effect or (ii) other than in the
ordinary course of business in a manner consistent with past practices, any
increase in the compensation of, or change of control agreement with, any
officer of Plum Creek or any of its Subsidiaries or any general salary or
benefits increase to the employees of Plum Creek or any of its Subsidiaries.
Section 5.09 Litigation. Except as disclosed in Plum Creek's Form 10-K
----------
dated December 31, 1999, there are no investigations, actions, suits or
proceedings pending against Plum Creek or its Subsidiaries or, to the knowledge
of Plum Creek, threatened against Plum Creek or its Subsidiaries (or any of
their respective properties, rights or franchises), at law or in equity, or
before or by any Federal or state commission, board, bureau, agency, regulatory
or administrative instrumentality or other Governmental Authority or any
arbitrator or arbitration tribunal, that would reasonably be expected to,
individually or in the aggregate, have a Plum Creek Material Adverse Effect,
and, to the knowledge of Plum Creek, no development has occurred with respect to
any pending or threatened action, suit or proceeding that would reasonably be
expected to have a Plum Creek Material Adverse Effect or would reasonably be
expected to prevent, materially impair or materially delay the consummation of
the transactions contemplated hereby. Neither Plum Creek nor any of its
Subsidiaries is subject to any judgment, order or decree entered in any lawsuit
or proceeding which would reasonably be expected to have, individually or in the
aggregate, a Plum Creek Material Adverse Effect.
Section 5.10 Voting Requirements; SPO Approval; Board Approval.
-------------------------------------------------
(a) The affirmative vote of (i) the holders of at least a majority of the
votes entitled to be cast by the holders of the Plum Creek Common Equity (voting
together as a single class, with each share of Plum Creek Common Stock and Plum
Creek Special Voting Common Stock having one vote) and (ii) the holders of at
least a majority of the outstanding shares of Plum Creek Special Voting Common
Stock (voting as a separate class with each share of Plum Creek Special Voting
Common Stock having one vote) are the only votes of any class or series of Plum
Creek's capital stock necessary to approve this Agreement, the Mergers and the
transactions contemplated hereby (the "Plum Creek Stockholder Approval").
(b) SPO, as the sole stockholder of the Plum Creek Special Voting Common
Stock, has agreed pursuant to the Voting Agreement to approve this Agreement,
the Mergers and the transactions contemplated hereby and to convert all of its
Plum Creek Special Voting Common Stock to Plum Creek Common Stock immediately
prior to the Mergers.
(c) The Board of Directors of Plum Creek has, as of the date of this
Agreement, (i) determined that the Mergers are advisable and fair to, and in the
best interests of Plum Creek and its stockholders, (ii) approved this Agreement,
the Mergers and the transactions contemplated hereby, (iii) resolved to
recommend that the stockholders of Plum Creek approve and adopt this Agreement,
the Mergers, and the transactions contemplated hereby and (iv) upon receipt of
acceptable undertakings from both Southeastern Asset Management, Inc. and
Capital Research and Management Company, has waived the ownership limitation
<PAGE>
with respect to shares of Plum Creek Common Stock as set forth in Article IV of
Plum Creek's Certificate of Incorporation.
Section 5.11 Title to Properties: Encumbrances. Each of Plum Creek and
---------------------------------
its Subsidiaries has good, valid and marketable title to, or, in the case of
leased properties and assets, valid leasehold interests in, all of its tangible
properties and assets except where the failure to have such good, valid and
marketable title would not reasonably be expected to, individually or in the
aggregate, have a Plum Creek Material Adverse Effect; in each case subject to no
Liens, except for (a) Liens reflected in Plum Creek's consolidated balance sheet
as of March 31, 2000, (b) Liens consisting of zoning or planning restrictions,
easements, permits and other restrictions or limitations on the use of real
property or irregularities in title thereto which do not materially detract from
the value of, or impair the use of, such property by Plum Creek or any of its
Subsidiaries, (c) Liens for current Taxes, assessments or governmental charges
or levies on property not yet due or which are being contested in good faith and
for which appropriate reserves in accordance with GAAP have been created and (d)
Liens which would not reasonably be expected to, individually or in the
aggregate, have a Plum Creek Material Adverse Effect. Except as would not
reasonably be expected to, individually or in the aggregate, have a Plum Creek
Material Adverse Effect, each of Plum Creek and its Subsidiaries are in
compliance with the terms of all leases of tangible properties to which it is a
party and under which it is in occupancy, and all such leases are in full force
and effect.
Section 5.12 Compliance with Laws.
--------------------
(a) Each of Plum Creek and its Subsidiaries are in compliance with all
applicable Federal, State, local and foreign statutes, laws, regulations,
orders, judgments and decrees except where the failure to so comply would not
reasonably be expected to, individually or in the aggregate, have a Plum Creek
Material Adverse Effect.
(b) Each of Plum Creek and its Subsidiaries hold, to the extent legally
required, all Permits that are required for its operation as now conducted,
except where the failure to hold any such Permit would not reasonably be
expected to, individually or in the aggregate, have a Plum Creek Material
Adverse Effect, and there has not occurred any default under any such Permit,
except to the extent that such default would not reasonably be expected to,
individually or in the aggregate, have a Plum Creek Material Adverse Effect.
Section 5.13 Material Contracts. Plum Creek and its Subsidiaries have
------------------
in all material respects performed all obligations required to be performed by
them to date individually or in the aggregate with respect to any Plum Creek
Material Contract, except for violations or defaults that would not reasonably
be expected to have a Plum Creek Material Adverse Effect. Neither Plum Creek nor
any of its Subsidiaries knows of, or has received notice of, any violation or
default under (nor to their knowledge does there exist any condition which with
the passage of time or the giving of notice would cause such a violation of or
default under) any Plum Creek Material Contract to which it is a party or by
which it or any of its properties or assets is bound, except for violations or
defaults that would not, individually or in the aggregate, reasonably be
expected to have a Plum Creek
<PAGE>
Material Adverse Effect. Each Plum Creek Material Contract is valid and binding
on Plum Creek or any of its Subsidiaries, as applicable, and in full force and
effect, and Plum Creek and its Subsidiaries have in all material respects
performed all obligations required to be performed by them to date individually
or in the aggregate, except for violations or defaults that would not reasonably
be expected to have a Plum Creek Material Adverse Effect.
Section 5.14 Environmental Matters. Except as would not have a Plum
---------------------
Creek Material Adverse Effect or is not otherwise disclosed in the Plum Creek
SEC Filings:
(a) Plum Creek is in material compliance with all Environmental Laws. Such
compliance includes, but is not limited to, the possession by Plum Creek of all
permits and other governmental authorizations required under all applicable
Environmental Laws, and compliance with the terms and conditions thereof.
(b) Plum Creek has not received and there does not remain pending any
communication or notice, whether from a Governmental Authority, citizens group,
employee or otherwise, that alleges that Plum Creek is not in compliance with
any Environmental Laws, and there are no circumstances that may materially
prevent or interfere with such compliance in the future.
(c) There is no Environmental Claim relating to the Plum Creek Real
Property or the operations currently conducted or proposed to be conducted
thereon that is pending or threatened against Plum Creek or against any Person
or entity whose liability for any Environmental Claim Plum Creek has retained or
assumed either contractually or by operation of law.
(d) There are no past or present actions, activities, circumstances,
conditions, events or incidents, including, without limitation, the release,
emission, discharge, presence or disposal of any Material of Environmental
Concern, that could reasonably be expected to form the basis of any material
Environmental Claim against Plum Creek or against any Person or entity whose
liability for any Environmental Claim Plum Creek has retained or assumed either
contractually or by operation of law.
(e) Plum Creek is not required by virtue of the transactions set forth
herein and contemplated hereby, or as a condition to the effectiveness of any
transactions contemplated hereby, (i) to perform a site assessment for Materials
of Environmental Concern, (ii) to remove or remediate Materials of Environmental
Concern, (iii) to give notice to or receive approval from any Governmental
Authority pertaining to environmental matters, or (iv) to record or deliver to
any Person or entity any disclosure document or statement pertaining to
environmental matters.
Section 5.15 Taxes. Except as otherwise set forth in Section 5.15 of
-----
the Plum Creek Disclosure Letter:
(a) Plum Creek and each of its Subsidiaries and each of its Affiliated
Entities:
<PAGE>
(i) have timely paid or caused to be paid all material Taxes
required to be paid by it. The accruals for Taxes payable in Plum Creek's most
recent consolidated financial statements are adequate to cover all material
Taxes attributable to periods (or portions thereof) ending on the date of such
financial statements, and no material Taxes attributable to periods following
the date of such financial statements have been incurred other than in the
ordinary course of business;
(ii) have filed or caused to be filed in a timely manner all
material Tax Returns required to be filed by such entities with the appropriate
Tax Authority in all jurisdictions in which Tax Returns are required to be
filed, and all such Tax Returns are true, correct and complete in all material
respects; and
(iii) have not requested or caused to be requested any extension
of time within which to file any material Tax Return, which Tax Return has not
since been filed.
(b) There are no pending Tax audits relating to Plum Creek or any of its
Subsidiaries and no waivers of statutes of limitations have been given or
requested by Plum Creek or any of its Subsidiaries that are currently
outstanding.
(c) No Liens for Taxes have been filed against Plum Creek or any of its
Subsidiaries, except for Liens for Taxes not yet due or payable for which
adequate reserves have been provided for in the latest balance sheet of Plum
Creek.
(d) Neither Plum Creek nor any of its Subsidiaries has received notice
within the last three years from any Tax Authority in a jurisdiction in which
Plum Creek or any of its Subsidiaries does not file Tax Returns that Plum Creek
or any of its Subsidiaries is or may be subject to taxation by that
jurisdiction.
(e) Plum Creek (i) for all taxable years commencing with the taxable year
ending December 31, 1999, has been subject to taxation as a Real Estate
Investment Trust within the meaning of section 856 of the Code and has qualified
as a Real Estate Investment Trust for all such years, and (ii) has operated
since December 31, 1999 to the date of this representation, and intends to
continue to operate, in such a manner as to qualify as a Real Estate Investment
Trust for the taxable year that includes the Closing Date and thereafter.
Section 5.16 Tax Comfort. Plum Creek has received advice from its tax
-----------
counsel, that, based on the Federal income tax laws in effect at the time of the
execution of this Agreement and the facts and circumstances known to Plum Creek
on the date hereof, the cutting of timber transferred by the Spincos to the
Surviving Corporation pursuant to the Mergers during the ten year period
following the Effective Date should not be subject to section 1374 of the Code.
Section 5.17 Transactions with Affiliates. Except as disclosed in the
----------------------------
Plum Creek SEC filings, since December 31, 1997, there have been no
transactions, agreements, arrangements or understandings between Plum Creek or
its Subsidiaries, on the one hand,
<PAGE>
and Plum Creek's Affiliates (other than wholly-owned Subsidiaries of Plum Creek)
or other Persons, on the other hand, that would be required to be disclosed
under Item 404 of Regulation S-K under the Securities Act.
Section 5.18 Insurance. Plum Creek maintains insurance coverage with
---------
reputable insurers in such amounts and covering such risks as are in accordance
with normal industry practice for companies engaged in business similar to that
of Plum Creek.
Section 5.19 Employment Relations.
--------------------
(a) Except as would not reasonably be expected to, individually or in the
aggregate, have a Plum Creek Material Adverse Effect or as set forth in Section
5.19(a) of the Plum Creek Disclosure Letter, (i) Plum Creek is not a party to
any collective bargaining agreement or other labor union contract, (ii) there
are no organizational campaigns, demands or proceedings pending or, to Plum
Creek's knowledge, threatened by any labor organization or group of employees
seeking recognition or certification as collective bargaining representatives of
any group of employees of Plum Creek, and (iii) there are no strikes,
controversies, slowdowns, work stoppages or material labor disputes, or, to Plum
Creek's knowledge, threatened involving any site of employment of Plum Creek.
(b) Plum Creek is, and has at all times been, in material compliance with
all applicable laws respecting employment and employment practices, terms and
conditions of employment, wages, hours of work and occupational safety and
health, and is not engaged in any unfair labor practices as defined in the
National Labor Relations Act or other applicable law, ordinance or regulation.
To the knowledge of Plum Creek, there are no complaints, controversies, charges,
investigations, lawsuits or other proceedings relating to Plum Creek pending in
any court or with any agency responsible for the enforcement of Federal, state,
local or foreign labor or employment laws regarding breach of any express or
implied contract or employment, any law or regulation governing employment or
the termination thereof or other discriminatory, wrongful or tortious conduct in
connection with the employment relationship.
Section 5.20 Plum Creek Employee Benefit Plans.
---------------------------------
(a) "Plum Creek Plans" shall mean each employment, bonus, deferred
compensation, incentive compensation, stock purchase, stock option, stock
appreciation right or other stock-based incentive, severance, change-in-control,
or termination pay, hospitalization or other medical, disability, life or other
insurance, supplemental unemployment benefits, profit-sharing, pension, or
retirement plan, program, agreement or arrangement and each other employee
benefit plan, program, agreement or arrangement, sponsored, maintained or
contributed to or required to be contributed to by Plum Creek or any of its
subsidiaries, or by any trade or business, whether or not incorporated, that
together with Plum Creek or any of its subsidiaries would be deemed a "single
employer" within the meaning of Section 4001(b)(1) of ERISA (a "Plum Creek ERISA
Affiliate"), for the benefit of any current or former employee or director of
Plum Creek, whether formal or informal and whether legally binding or not.
<PAGE>
(b) With respect to each Plum Creek Plan, Plum Creek has made available or
will make available to G-P a current, accurate and complete copy thereof and, to
the extent applicable: (i) the most recent determination letter, (ii) any
summary plan description and (iii) for the two most recent years (A) the form
5500 and attached schedules, (B) audited financial statements and (C) actuarial
valuation reports.
(c) The Plum Creek Plans are in compliance in all material respects with
all applicable requirements of ERISA, the Code , and other applicable laws and
have been administered in accordance with their terms and such laws, except
where the failure to so comply would not reasonably be expected to have a Plum
Creek Material Adverse Effect. Each Plum Creek Plan which is intended to be
qualified within the meaning of Section 401 of the Code has received a favorable
determination letter as to its qualification, and, to the knowledge of Plum
Creek, nothing has occurred that would reasonably be expected to affect such
qualification.
(d) There are no pending, or to the knowledge of Plum Creek, threatened
claims and no pending or, to the knowledge of Plum Creek, threatened litigation
with respect to any Plum Creek Plans that would reasonably be expected to have a
Plum Creek Material Adverse Effect, other than ordinary and usual claims for
benefits by participants and beneficiaries.
(e) No liability under Title IV of ERISA has been incurred by Plum Creek,
any of its Subsidiaries or any Plum Creek ERISA Affiliate since the Effective
Date of ERISA that has not been satisfied in full, and no condition exists that
presents a material risk to Plum Creek or any of its subsidiaries or any Plum
Creek ERISA Affiliate of incurring any liability under such Title, other than
liability for premiums due to the PBGC, which payments have been or will be made
when due, that would reasonably be expected to have a Plum Creek Material
Adverse Effect. To the extent this representation applies to Sections 4064, 4069
or 4204 of Title IV of ERISA, it is made not only with respect to the Plum Creek
Plans but also with respect to any employee benefit plan, program, agreement or
arrangement subject to Title IV of ERISA to which Plum Creek, any of its
subsidiaries or any Plum Creek ERISA Affiliate made, or was required to make,
contributions during the past six years.
(f) No lien has been imposed under section 412(n) of the Code or Section
302(f) of ERISA on the assets of Plum Creek, any of its subsidiaries or any Plum
Creek ERISA Affiliate, and no event or circumstance has occurred that is
reasonably likely to result in the imposition of any such lien on any such
assets on account of any Plum Creek Plan.
(g) Except for liabilities that would not reasonably be expected to have a
Plum Creek Material Adverse Effect, with respect to any Plum Creek Plan that is
a "multiemployer pension plan," as such term is defined in Section 3(37) of
ERISA, (i) neither Plum Creek, any of its subsidiaries nor any Plum Creek ERISA
Affiliate has, since September 26, 1980, made or suffered a "complete
withdrawal" or a "partial withdrawal," (as such terms are respectively defined
in Sections 4203 and 4205 of ERISA) pursuant to which all liability in
<PAGE>
respect thereof has not been satisfied, (ii) no event (including the
transactions contemplated hereunder) is reasonably expected to occur that
presents a material risk of a complete or partial withdrawal, and (iii) neither
Plum Creek, each of its subsidiaries nor any Plum Creek ERISA Affiliate has any
contingent material liability under Section 4204 of ERISA.
Section 5.21 Broker's or Finder's Fee. Except for Goldman, Sachs & Co.
------------------------
(whose fees and expenses will be paid by Plum Creek in accordance with their
agreement with such firm, a true and correct copy of which has been previously
delivered to G-P by Plum Creek), no agent, broker, Person or firm acting on
behalf of Plum Creek is, or will be, entitled to any investment banking or
broker's or finder's fees from any of the parties hereto, or from any Person
controlling, controlled by, or under common control with any of the parties
hereto, in connection with this Agreement or any of the transactions
contemplated hereby.
ARTICLE VI
COVENANTS
Section 6.01 Access to Information Concerning Properties and Records.
-------------------------------------------------------
(a) Subject to compliance with applicable law, during the period
commencing on the date hereof and ending on the earlier of (i) the Closing Date
and (ii) the date on which this Agreement is terminated pursuant to Section 8.01
hereof, each of G-P, the Spincos and Plum Creek shall, and each shall cause each
of its Subsidiaries to, upon reasonable notice, afford the other party, and its
respective counsel, accountants, consultants and other authorized
representatives, access during normal business hours to its and its
Subsidiaries' employees, properties, books and records only to the extent that
they relate to the Timber Group in order that they may have the opportunity to
make such investigations as they shall desire of its and its Subsidiaries'
affairs; such investigation shall not, however, affect the representations and
warranties made by G-P, the Spincos or Plum Creek in this Agreement.
(b) G-P shall furnish promptly to Plum Creek and Plum Creek shall furnish
promptly to G-P (i) a copy of each form, report, schedule, statement,
registration statement and other document filed by it or its Subsidiaries during
such period pursuant to the requirements of Federal, state or foreign securities
laws and (ii) all other information concerning the Timber Group's business,
properties and personnel as Plum Creek or G-P may reasonably request.
(c) Each of G-P and Plum Creek agrees to cause its officers and employees
to furnish such additional financial and operating data and other information
and respond to such inquiries as the other party shall from time to time
reasonably request (in each case, as such data, information and inquiries relate
to the Timber Group or Plum Creek, as the case may be).
(d) G-P shall comply with the disclosure and information requirements set
forth in Section 2 of the Tax Matters Agreement.
<PAGE>
Section 6.02 Confidentiality. Each of Plum Creek, the Spincos and G-P
---------------
will hold, and will use commercially reasonable efforts to cause its officers,
directors, employees, accountants, counsel, consultants, advisors and agents to
hold, in confidence, unless compelled to disclose by judicial or administrative
process or by other requirements of law, all confidential documents and
information concerning the other party furnished to it or its Affiliates in
connection with the transactions contemplated by this Agreement, except to the
extent that such information can be shown to have been (i) previously known on a
nonconfidential basis by such party, (ii) in the public domain through no fault
of such party or (iii) later lawfully acquired by such party from sources other
than the other party not in violation of any obligation of confidentiality;
provided that each of Plum Creek, the Spincos and G-P may disclose such
information to its officers, directors, employees, accountants, counsel,
consultants, advisors, lenders and agents in connection with the transactions
contemplated by this Agreement so long as such party informs such Persons of the
confidential nature of such information and directs them to treat it
confidentially and any breach of this Section 6.02 or by such Person shall be
deemed a breach by Plum Creek, the Spincos or G-P, as the case may be. If this
Agreement is terminated, each of Plum Creek, the Spincos and G-P will, and will
use commercially reasonable efforts to cause its officers, directors, employees,
accountants, counsel, consultants, advisors and agents to, destroy or deliver to
the other party, upon request, all documents and other materials, and all copies
thereof, that it or its Affiliates obtained, or that were obtained on their
behalf, from the other party in connection with this Agreement and that are
subject to such confidence.
Section 6.03 Conduct of the Business of G-P Pending the Effective Time.
---------------------------------------------------------
Except as set forth in Section 6.03 of the G-P Disclosure Letter:
(a) Except as would not pertain to or affect the Timber Group in any
material way, G-P agrees that, between the date of this Agreement and the
Effective Time, except as contemplated by any other provision of this Agreement,
G-P and each of its Subsidiaries shall use their commercially reasonable efforts
to conduct the Timber Group operations in all material respects only according
to their ordinary and usual course of business in a manner consistent with past
practice, preserve intact the Timber Group business organization, keep available
the services of the Timber Group officers and employees and maintain
satisfactory relationships with licensors, suppliers, distributors, clients,
joint venture partners and others having significant business relationships with
the Timber Group.
(b) Except as provided in Section 6.03(a) herein, or except as shall be
mutually agreed in writing by G-P and Plum Creek, G-P agrees that, between the
date of this Agreement and the Effective Time, (i) G-P and each of its
Subsidiaries shall use commercially reasonable efforts to (x) cause the
transactions contemplated by this Agreement to qualify as a series of
substantially tax-free transactions under the Code and (y) not take, and prevent
any Affiliate from taking any actions that could prevent such transactions from
qualifying as substantially tax-free transactions under the Code, and (ii)
neither G-P nor any of its Subsidiaries shall issue any equity interests if it
would cause the transactions contemplated by this Agreement to fail to qualify
as a series of tax-free transactions under the Code.
<PAGE>
(c) Except as provided in Section 6.03(a), (d)(iii), (d)(v) or (d)(vi), or
except as shall be mutually agreed in writing by G-P and Plum Creek, G-P agrees
that, between the date of this Agreement and the Effective Time, G-P and each of
its Subsidiaries shall use any cash generated from the operations, financing
transactions, asset dispositions or investments of the Timber Group to pay
expenses and reserve for Taxes allocated to the Timber Group in accordance with
the Allocation Policies, or use any such cash for permitted expenditures under
this Agreement or to reduce indebtedness attributed to the Timber Group.
(d) Without limiting the generality of the foregoing, and except as would
not pertain to or affect in any material way the Timber Group or as otherwise
provided in this Agreement, before the Notice of Redemption Date, G-P shall not,
without the prior written consent of Plum Creek (which consent shall not be
unreasonably withheld or delayed), nor shall it permit any of its subsidiaries
to:
(i) amend or otherwise change its Certificate of Incorporation
or By-laws or equivalent organizational documents;
(ii) issue, sell, pledge, dispose of, grant, transfer, lease,
license, guarantee, encumber, or authorize the issuance, sale, pledge,
disposition, grant, transfer, lease, guarantee or encumbrance of (A) any shares
of Timber Group Common Stock or securities convertible or exchangeable or
exercisable for any shares of Timber Group Common Stock, or any options,
warrants or other rights of any kind to acquire any shares of such Timber Group
Common Stock or any Timber Group Equity Interests except (i) the issuance of
Timber Group Common Stock or Units upon the exercise of G-P Options or (ii) the
issuance of Timber Group Common Stock under any stock purchase plan or (B) other
than in the ordinary course of business and in a manner consistent with past
practice and not in excess of $5 million individually, any property or assets of
the Timber Group;
(iii) declare, set aside, make or pay any dividend or other
distribution, payable in cash, stock, property or otherwise, with respect to any
of the Timber Group Common Stock (other than regular quarterly cash dividends at
a rate not in excess of $.25 per share of Timber Group Common Stock declared and
paid in the ordinary course and consistent with past practice) or enter into any
agreement with respect to the voting of the Timber Group Common Stock;
(iv) reclassify, combine, split, subdivide or redeem, purchase or
otherwise acquire, directly or indirectly, any of the Timber Group Common Stock;
(v) (A) except as permitted under Section 6.03(d)(vi) or other
than in the ordinary course of business in a manner consistent with past
practice and not in excess of $10 million individually, acquire (including,
without limitation, by merger, consolidation, or acquisition of stock or assets)
any interest in any corporation, partnership, other business
<PAGE>
organization, Person or any division thereof (other than a wholly owned
Subsidiary or any preferred stock of a Subsidiary) or any assets for and on
behalf of the Timber Group; (B) incur any indebtedness for borrowed money or
issue any debt securities or assume, guarantee or endorse, or otherwise as an
accommodation become responsible for, the obligations of any Person for borrowed
money, except for (1) indebtedness for borrowed money incurred in the ordinary
course of business or in connection with transactions otherwise permitted under
this Section 6.03, (2) indebtedness incurred to refinance any existing
indebtedness or (3) other indebtedness for borrowed money under existing credit
facilities or (4) as contemplated by the Separation Agreement; or (C) enter into
or amend any contract, agreement, commitment or arrangement that, if fully
performed, would not be permitted under this Section 6.03(d)(v);
(vi) except as set forth in Section 6.03(d)(vi) of the G-P
Disclosure Letter, acquire any interest in timberlands; provided, however, that
-------- -------
subject to prior written notice to Plum Creek, G-P may acquire an interest in
timberlands at or below fair market value if such acquisition does not otherwise
jeopardize the intended tax consequences of the transactions contemplated by
this Agreement;
(vii) change its accounting policies or procedures with respect to
the Timber Group, other than in the ordinary course of business in a manner
consistent with past practice or except as required by changes in GAAP;
(viii) except to the extent required under existing plans or
agreements or by law or as contemplated by this Agreement or any Ancillary
Contract (A) increase the compensation payable or to become payable to any of
the officers, directors, employees, agents or consultants of the Timber Group
(other than general increases in wages to officers and employees in the ordinary
course consistent with past practice) or to Persons providing management
services to the Timber Group; (B) make any loans from the assets of the Timber
Group to any of its officers, directors, employees, Affiliates, agents or
consultants not in the ordinary course of business and consistent with past
practice or make any change in its existing borrowing or lending arrangements
that are part of the Timber Group for or on behalf of any such Persons not in
the ordinary course of business and consistent with past practice, whether
pursuant to an employee benefit plan or otherwise; or (C) adopt or materially
amend, any new or existing Plan relating to employees of the Timber Group;
(ix) amend, modify or terminate any Ancillary Contracts;
(x) enter into any monetization transaction with respect to the
installment note received in connection with the sale of the Fort Bragg
timberlands (the "Fort Bragg Note");
(xi) take any action that is intended or may reasonably be
expected to result in any of its representations and warranties set forth in
this Agreement being or becoming untrue in any material respect at any time
prior to the Notice of Redemption Date,
<PAGE>
or in any of the conditions set forth in Article VII not being satisfied or in a
violation of any provision of this Agreement, except, in every case, as may be
required by applicable Law; or
(xii) agree, in writing or otherwise, to take any of the foregoing
actions.
Section 6.04 Conduct of the Business of Plum Creek Pending the Effective
-----------------------------------------------------------
Time.
----
(a) Except as set forth in Section 6.04(a) of the Plum Creek Disclosure
Letter, Plum Creek agrees that, between the date of this Agreement and the
Effective Time, except as contemplated by any other provision of this Agreement,
Plum Creek and each of its Subsidiaries shall use their commercially reasonable
efforts to conduct their respective operations in all material respects only
according to their ordinary and usual course of business consistent with past
practice, preserve intact their respective business organization, keep available
the services of their officers and employees, maintain satisfactory
relationships with licensors, suppliers, distributors, clients, joint venture
partners and others having significant business relationships with them.
(b) Except as provided in Section 6.04(a) herein, or except as shall be
mutually agreed in writing by G-P and Plum Creek, Plum Creek agrees that,
between the date of this Agreement and the Effective Time, (i) Plum Creek and
each of its Subsidiaries shall use commercially reasonable efforts to (x) cause
the transactions contemplated by this Agreement to qualify as a series of
substantially tax-free transactions under the Code, (y) not take, and prevent
any Affiliate from taking, any actions that could prevent such transactions from
qualifying as substantially tax-free transactions under the Code and (z)
maintain its status as a Real Estate Investment Trust under the Code, and (ii)
neither Plum Creek nor any of its Subsidiaries shall issue any equity interests
if it would cause the transactions contemplated by this Agreement to fail to
qualify as a series of tax-free transactions under the Code.
(c) Except as provided in Section 6.04(a), (d)(iii), (d)(v) or (d)(vi), or
except as shall be mutually agreed in writing by G-P and Plum Creek, Plum Creek
agrees that, between the date of this Agreement and the Effective Time, Plum
Creek and each of its Subsidiaries shall retain any cash generated from
operations, financing transactions, asset dispositions or investments of Plum
Creek, other than cash used to pay expenses, make permitted expenditures under
this Agreement or retire or refinance
indebtedness of Plum Creek.
(d) Without limiting the generality of the foregoing, and except as
otherwise provided in this Agreement, before the Notice of Redemption Date, Plum
Creek shall not, without the prior written consent of G-P (which consent will
not be unreasonably withheld or delayed), nor will it permit any of its
subsidiaries to:
(i) amend or otherwise change its Certificate of Incorporation
or By-laws or equivalent organizational documents;
<PAGE>
(ii) sell, pledge, dispose of, grant, transfer, lease, license,
guarantee, encumber, or authorize the sale, pledge, disposition, grant,
transfer, lease, guarantee or encumbrance of, other than in the ordinary course
of business and consistent with past practice and not in excess of $5 million
individually, any property or assets of Plum Creek or any of its Subsidiaries;
(iii) declare, set aside, make or pay any dividend or other
distribution, payable in cash, stock, property or otherwise, with respect to any
of its capital stock (other than regular quarterly cash dividends at a rate not
in excess of $.57 per share of Plum Creek Common Equity declared and paid in the
ordinary course and consistent with past practice) or enter into any agreement
with respect to the voting of its capital stock;
(iv) reclassify, combine, split, subdivide or redeem, purchase or
otherwise acquire, directly or indirectly, any of its capital stock;
(v) (A) except as permitted under Section 6.04(d)(vi) or other
than in the ordinary course of business in a manner consistent with past
practice not in excess of $10 million individually, acquire (including, without
limitation, by merger, consolidation, or acquisition of stock or assets) any
interest in any corporation, partnership, other business organization, Person or
any division thereof (other than a wholly owned Subsidiary or any preferred
stock of a Subsidiary) or any assets; (B) incur any indebtedness for borrowed
money or issue any debt securities or assume, guarantee or endorse, or otherwise
as an accommodation become responsible for, the obligations of any Person for
borrowed money, except for (1) indebtedness for borrowed money incurred in the
ordinary course of business or in connection with transactions otherwise
permitted under this Section 6.04, (2) indebtedness incurred to refinance any
existing indebtedness or (3) other indebtedness for borrowed money under
existing credit facilities; or (C) enter into or amend any contract, agreement,
commitment or arrangement that, if fully performed, would not be permitted under
this Section 6.04(d)(v);
(vi) acquire any interest in timberlands or ancillary mills;
provided, however, that subject to prior written notice to G-P, Plum Creek may
-------- -------
acquire an interest in timberlands or ancillary mills at or below fair market
value if such acquisition does not otherwise jeopardize the intended tax
consequences of the transactions contemplated by this Agreement;
(vii) change its accounting policies or procedures, other than in
the ordinary course of business in a manner consistent with past practice or
except as required by changes in GAAP;
(viii) amend, modify or terminate any Ancillary Contracts;
(ix) take any action that is intended or may reasonably be
expected to result in any of its representations and warranties set forth in
this Agreement being or becoming untrue in any material respect at any time
prior to the Effective Time, or in any of
<PAGE>
the conditions set forth in Article VII not being satisfied or in a violation of
any provision of this Agreement, except, in every case, as may be required by
applicable Law; or
(x) agree, in writing or otherwise, to take any of the foregoing
actions.
Section 6.05 Conduct of the Business of G-P After the Notice of
--------------------------------------------------
Redemption Date. Except as would not pertain to or affect the Timber Group,
---------------
(a) Between the Notice of Redemption Date and the Effective Time, each of
G-P and its Subsidiaries shall conduct the Timber Group operations only in the
ordinary course of business consistent with past practice; provided, however,
that each of G-P or its Subsidiaries shall not (i) enter into, amend, modify or
terminate in the ordinary course of business in a manner consistent with past
practice any Contract in which the market value of such Contract exceeds
$1,000,000 without the prior written consent of Plum Creek and (ii) take any of
the actions prohibited by Section 6.03(d)(i), (ii)(A), (iii), (iv) or (vii).
(b) Between the Notice of Redemption Date and the Effective Time, each of
G-P and its Subsidiaries shall obtain Plum Creek's prior written consent before
entering into any Material Transaction whether or not in the ordinary course of
business. For purposes of this section, "Material Transaction" shall mean any
expenditure or commitment to expend in excess of $1,000,000.
Section 6.06 Method of Allocating the Assets and Liabilities of the
------------------------------------------------------
Timber Group. G-P shall not, without the prior written consent of Plum Creek
------------
(which consent shall not be unreasonably withheld or delayed):
(a) change the Allocation Policies;
(b) change its capital expenditure budget for the Timber Group for the
fiscal year 2000; or
(c) except as set forth on Section 6.06(c) of the G-P Disclosure Letter,
with respect to items that are allocable between the Georgia-Pacific Group and
the Timber Group and are not subject to any objective allocation practice
(including allocations based on historical usage) utilized to allocate expenses
pursuant to the Allocation Policies, change the percentage of total expenses
allocable to the Timber Group for the fiscal year 2001 so that the percentage
exceeds the percentage allocable to the Timber Group for the fiscal year 2000.
Section 6.07 Shareholders' Meetings.
----------------------
(a) G-P shall call and hold a meeting of the Timber Group Common Stock
shareholders (the "Timber Group Shareholder Meeting") promptly following the
receipt of the Private Letter Ruling for the purpose of voting upon the approval
of this Agreement.
(b) Plum Creek shall call and hold a meeting of the Plum Creek Common
Equity stockholders (the "Plum Creek Stockholder Meeting") promptly following
the receipt
<PAGE>
of the Private Letter Ruling for the purposes of voting upon the approval of
this Agreement, the Mergers and the transactions contemplated hereby.
Section 6.08 Preparation of Joint Proxy Statement/Prospectus;
------------------------------------------------
Registration Statement.
----------------------
(a) As promptly as practicable after the execution of this Agreement, (i)
G-P and Plum Creek shall prepare and file with the SEC the Joint Proxy
Statement/Prospectus relating to the Timber Group Shareholder Meeting and the
Plum Creek Stockholder Meeting to be held in connection with the Mergers and
(ii) Plum Creek shall prepare and file with the SEC the Merger Registration
Statement in which the Joint Proxy Statement/Prospectus shall be included as a
prospectus, in connection with the registration under the Securities Act of the
shares of Plum Creek Common Stock to be issued to the shareholders of the Timber
Group Common Stock pursuant to the Mergers. Each of Plum Creek and G-P will use
commercially reasonable efforts to cause the Merger Registration Statement to
become effective as promptly as practicable, and, prior to the effective date of
the Merger Registration Statement, Plum Creek shall take all or any action
required under any applicable Federal or state securities laws in connection
with the issuance of shares of Plum Creek Common Stock in the Mergers. Each of
Plum Creek and G-P shall furnish all information concerning it and the holders
of its capital stock as the other may reasonably request in connection with such
actions and the preparation of the Merger Registration Statement and the Joint
Proxy Statement/Prospectus. As promptly as practicable after the Merger
Registration Statement shall have become effective, but in no event prior to the
receipt of the Private Letter Ruling, each of Plum Creek and G-P shall mail the
Joint Proxy Statement/Prospectus to the holders of Plum Creek Common Equity or
Timber Group Common Stock, as the case may be. Subject to Section 6.10, the
Joint Proxy Statement/Prospectus shall include the recommendation of the Board
of Directors of each of Plum Creek and G-P in favor of the Mergers.
(b) No amendment or supplement to the Joint Proxy Statement/Prospectus or
the Merger Registration Statement will be made by Plum Creek or G-P without the
consent of the other party (which consent shall not be unreasonably withheld or
delayed). Plum Creek and G-P each will advise the other, promptly after it
receives notice thereof, of the time when the Merger Registration Statement has
become effective or any supplement or amendment has been filed, the issuance of
any stop order, the suspension of the qualification of the Plum Creek Common
Stock issuable in connection with the Mergers for offering or sale in any
jurisdiction, or any request by the SEC for amendment of the Joint Proxy
Statement/Prospectus or the Merger Registration Statement or comments thereon
and responses thereon or requests by the SEC for additional information.
(c) The information supplied by Plum Creek for inclusion in the Merger
Registration Statement and the Joint Proxy Statement/Prospectus shall not, at
(i) the time the Merger Registration Statement is declared effective, (ii) the
time the Joint Proxy Statement/Prospectus (or any amendment thereof or
supplement thereto) is first mailed to the stockholders of Plum Creek and the
Timber Group shareholders and (iii) the time of each
<PAGE>
of the Timber Group Shareholder Meeting and the Plum Creek Stockholder Meeting,
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein not misleading. If at any time prior to the Effective Time, any event or
circumstance relating to Plum Creek or any of its Subsidiaries, or their
respective officers or directors, should be discovered by Plum Creek and such
information should be set forth in an amendment or a supplement to the Merger
Registration Statement or Joint Proxy Statement/Prospectus, Plum Creek shall
promptly inform G-P. All documents that G-P is responsible for filing with the
SEC in connection with the transactions contemplated herein will comply as to
form and substance in all material aspects with the applicable requirements of
the Securities Act and the rules and regulations thereunder and the Exchange Act
and the rules and regulations thereunder.
(d) The information supplied by G-P for inclusion in the Merger
Registration Statement and the Joint Proxy Statement/Prospectus shall not, at
(i) the time the Merger Registration Statement is declared effective, (ii) the
time the Joint Proxy Statement/Prospectus (or any amendment thereof or
supplement thereto) is first mailed to the Timber Group shareholders and
stockholders of Plum Creek and (iii) the time of each of the Timber Group
Shareholder Meeting and the Plum Creek Stockholder Meeting, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading. If at any time prior to the Effective Time, any event or
circumstance relating to the Timber Group should be discovered by G-P and such
information should be set forth in an amendment or a supplement to the Merger
Registration Statement or Joint Proxy Statement/Prospectus, G-P shall promptly
inform Plum Creek. All documents that Plum Creek is responsible for filing with
the SEC in connection with the transactions contemplated herein will comply as
to form and substance in all material respects with the applicable requirements
of the Securities Act and the rules and regulations thereunder and the Exchange
Act and the rules and regulations thereunder.
Section 6.09 Commercially Reasonable Efforts. Subject to the terms and
-------------------------------
conditions provided herein, each of G-P and Plum Creek shall, and shall cause
each of its Subsidiaries to, cooperate and use their commercially reasonable
efforts to take, or cause to be taken, all appropriate action, and to make, or
cause to be made, all filings, necessary, proper or advisable under applicable
laws and regulations to consummate and make effective the transactions
contemplated by this Agreement including, without limitation, G-P's and Plum
Creek's commercially reasonable efforts to cause the conditions in Article VII
to be satisfied, to obtain, prior to the Closing Date, all licenses, permits,
consents, approvals, authorizations, qualifications and orders of Governmental
Authorities and parties to contracts with G-P or Plum Creek, as the case may be,
and their respective Subsidiaries as are necessary for consummation of the
transactions contemplated by this Agreement and in order to comply with
applicable Laws.
Section 6.10 Board Recommendations.
---------------------
(a) Prior to the Timber Group Shareholder Approval, subject to their
fiduciary duties under applicable law, G-P's Board of Directors shall (i)
recommend approval and
<PAGE>
adoption by the Timber Group Common Stock shareholders of this Agreement and
(ii) cause G-P to take all lawful action to solicit the Timber Group Shareholder
Approval.
(b) Prior to the Plum Creek Stockholder Approval, subject to their
fiduciary duties under applicable law, Plum Creek's Board of Directors shall (i)
recommend approval and adoption by the Plum Creek Common Equity stockholders of
this Agreement and (ii) cause Plum Creek to take all lawful action to solicit
the Plum Creek Stockholder Approval.
(c) Subject to their fiduciary duties under applicable law, neither the
Board of Directors of G-P nor any committee thereof shall withdraw or modify, or
propose to withdraw or modify, in a manner adverse to Plum Creek, the approval
or recommendation by the Board of Directors of G-P or any such committee of this
Agreement, the Mergers or the transactions contemplated hereby.
(d) Subject to their fiduciary duties under applicable law, neither the
Board of Directors of Plum Creek nor any committee thereof shall withdraw or
modify, or propose to withdraw or modify, in a manner adverse to G-P, the
approval or recommendation by the Board of Directors of Plum Creek or any such
committee of this Agreement, the Mergers, the issuance of shares of Plum Creek's
Common Stock in the Mergers or the transactions contemplated hereby.
Section 6.11 No Solicitation.
---------------
(a) Except as provided in this Section, G-P will not, and will cause its
respective Affiliates, officers, directors, employees, financial advisors,
attorneys and other advisors, representatives and agents not to, directly or
indirectly solicit, initiate, or encourage any inquiries or proposals from,
discuss or negotiate with, or provide any non-public information to, any Person
(other than Plum Creek) relating to any transaction involving the sale of any of
the assets of the Timber Group (other than in the ordinary course of business),
or any of the capital stock of the Timber Group, or any merger, consolidation,
business combination, or similar transaction involving the Timber Group or any
of the Timber Group's Subsidiaries (a "G-P Acquisition Transaction").
(b) G-P will promptly (and in any event within three days) advise Plum
Creek in writing of the receipt of any inquiries or proposals relating to a G-P
Acquisition Transaction, including the identity of the Person submitting such
inquiry or proposal and the terms thereof.
(c) Notwithstanding the foregoing, nothing in this Agreement shall
prohibit (i) G-P from furnishing information to, and engaging in discussions or
negotiations with, any Person (an "Offeror") that makes an unsolicited and
written G-P Bona Fide Proposal to acquire G-P, the Timber Group or any of G-P's
Subsidiaries or any significant portion of the assets or securities of G-P, the
Timber Group or any of G-P's Subsidiaries pursuant to a merger, consolidation,
share exchange, tender offer or other similar transaction or (ii) G-P's Board of
Directors from failing to make or withdrawing or modifying its recommendation
<PAGE>
referred to in Section 6.10 in response to a G-P Bona Fide Proposal, but only to
the extent in any such case as is referred to in clause (i) and (ii) that G-P's
Board of Directors, after consultation with, and based upon advice of,
independent legal counsel (who may be G-P's regularly engaged outside legal
counsel), determines in good faith that furnishing such information to, or
engaging in such discussions or negotiations with, such Offeror or recommending
such G-P Bona Fide Proposal or changing its recommendation or failing to make
its recommendation referred to in Section 6.10 is necessary for G-P's Board of
Directors to comply with its fiduciary duties to stockholders under applicable
law; provided, however, that prior to taking any action referred to in clause
-------- -------
(i), G-P's Board of Directors notifies Plum Creek of its intention and obtains
an executed confidentiality agreement from the Offeror and such other
appropriate parties substantially similar to the confidentiality agreement
entered into with Plum Creek. G-P's or the G-P's Board of Director's exercise of
its rights under this clause (c), shall not constitute a breach by G-P or G-P's
Board of Directors of this Agreement.
(d) Except as provided in this Section, Plum Creek will not, and will
cause its respective Affiliates, officers, directors, employees, financial
advisors, attorneys and other advisors, representatives and agents not to,
directly or indirectly solicit, initiate, or encourage any inquiries or
proposals from, discuss or negotiate with, or provide any non-public information
to, any Person (other than G-P) relating to any transaction involving the sale
of any of the assets of Plum Creek (other than in the ordinary course of
business), or any of the capital stock of Plum Creek, or any merger,
consolidation, business combination, or similar transaction involving Plum Creek
or any of its Subsidiaries (a "Plum Creek Acquisition Transaction").
(e) Plum Creek will promptly (and in any event within three days) advise
G-P in writing of the receipt of any inquiries or proposals relating to a Plum
Creek Acquisition Transaction, including the identity of the Person submitting
such inquiry or proposal and the terms thereof.
(f) Notwithstanding the foregoing, nothing in this Agreement shall
prohibit (i) Plum Creek from furnishing information to, and engaging in
discussions or negotiations with an Offeror that makes an unsolicited and
written Plum Creek Bona Fide Proposal to acquire Plum Creek or any of Plum
Creek's Subsidiaries or any significant portion of the assets or securities of
Plum Creek or any of its Subsidiaries pursuant to a merger, consolidation, share
exchange, tender offer or other similar transaction or (ii) Plum Creek's Board
of Directors from failing to make or withdrawing or modifying its recommendation
referred to in Section 6.10 in response to a Plum Creek Bona Fide Proposal, but
only to the extent that in any such case as is referred to in clause (i) and
(ii) that Plum Creek's Board of Directors, after consultation with and based
upon the advice of independent legal counsel (who may be Plum Creek's regularly
engaged outside legal counsel) determines in good faith that furnishing such
information to, or engaging in such discussions or negotiations with, such
Offeror or recommending such Plum Creek Bona Fide Proposal or changing its
recommendation or failing to make its recommendation referred to in Section 6.10
is
<PAGE>
necessary for Plum Creek's Board of Directors to comply with its fiduciary
duties to stockholders under applicable law; provided, however, that prior to
-------- -------
taking such action referred to in clause (i), Plum Creek's Board of Directors
notifies G-P of its intention and obtains an executed confidentiality agreement
from the Offeror and such other appropriate parties substantially similar to the
confidentiality agreement entered into with G-P. Plum Creek's or the Plum
Creek's Board of Director's exercise of its rights under this clause (f), shall
not constitute a breach by Plum Creek or Plum Creek's Board of Directors of this
Agreement.
(g) Nothing contained in any provision of this Agreement shall prohibit G-
P or Plum Creek, as the case may be, in response to G-P Bona Fide Proposal or a
Plum Creek Bona Fide Proposal, from taking and disclosing to its shareholders a
position contemplated by Rule 14e-2(a) promulgated under the Exchange Act or
from making any disclosure to G-P shareholders or Plum Creek shareholders, as
the case may be, if, in the good faith judgment (based on the advise of outside
counsel) of the Board of Directors of G-P or Plum Creek, as the case may be,
failure so to disclose would be inconsistent with applicable law.
Section 6.12 Notification of Certain Matters. Each of G-P and Plum Creek
-------------------------------
shall give prompt notice to the other of (i) any notice or other communication
from any Person alleging that the consent of such Person is or may be required
in connection with the Mergers; (ii) any notice or other communication from any
Governmental Authority in connection with the Mergers; (iii) any action, suits,
claims, investigations or proceedings commenced or threatened in writing
against, relating to or involving or otherwise affecting it or any of its
Subsidiaries that relate to the consummation of the Mergers; and (iv) any change
that is reasonably likely to have a Timber Group Material Adverse Effect or a
Plum Creek Material Adverse Effect, as the case may be, or is likely to delay or
impede the ability of either Plum Creek or G-P, as the case may be, to
consummate the transactions contemplated by this Agreement or to fulfill its
obligations set forth herein.
Section 6.13 Public Announcements. Plum Creek and G-P shall consult with
--------------------
each other before issuing any press release or otherwise making any public
statements with respect to the transactions contemplated by this Agreement and
shall not issue any such press release or make any such public statement prior
to such consultation and review by the other party of such release or statement,
except as may be required by law, court process or by obligations pursuant to
any listing agreement with a national securities exchange.
Section 6.14 NYSE and PE Listing. Plum Creek shall cause the Plum Creek
-------------------
Common Stock to be issued in connection with the Mergers to be listed on the
NYSE and the PE as of the Effective Time, subject to official notice of
issuance.
Section 6.15 Coordination of Dividends. Each of G-P and Plum Creek shall
-------------------------
coordinate with the other regarding the declaration and payment of any dividends
in respect of the Timber Group Common Stock and Plum Creek Common Equity and the
record dates and the payment dates relating thereto, it being the intention of
G-P and Plum Creek that holders of the Timber Group Common Stock shall not
receive two dividends, or fail to receive a dividend, for any single calendar
quarter with respect to their shares of Timber
<PAGE>
Group Common Stock and/or any shares of Plum Creek Common Stock that any such
holder receives in exchange therefore pursuant to the Merger.
Section 6.16 Separation Agreement. The Separation Agreement, executed on
--------------------
the date hereof, shall not be amended, modified or terminated without the prior
written consent of Plum Creek.
Section 6.17 Ancillary Contracts. The parties hereto agree to execute,
-------------------
deliver and perform their respective obligations under each of the Ancillary
Contracts at or prior to the Effective Time.
Section 6.18 Affiliates. At least ten days prior to the mailing of the
----------
Joint Proxy Statement/Prospectus, (a) G-P shall deliver to Plum Creek a letter
identifying all persons who may be deemed to be affiliates of G-P under Rule 145
of the Securities Act as of the record date for the Timber Group Shareholder
Meeting, including, without limitation, all of its directors and executive
officers (the "Rule 145 Affiliates") and (b) G-P shall advise the persons
identified in such letter of the resale restrictions imposed by applicable
securities laws and shall use commercially reasonable efforts to obtain from
each person identified in such letter a written agreement in customary form and
substance.
Section 6.19 Method of Effecting the Merger. Plum Creek may, with G-P's
------------------------------
consent (which will not be unreasonably withheld), at any time change the method
of effecting the acquisition of the Spincos by Plum Creek, and, upon providing
such consent, G-P shall cooperate in such efforts, if and to the extent Plum
Creek deems such change to be desirable including, without limitation, to
provide for a merger of each of the Spincos with and into a wholly owned
subsidiary of Plum Creek, or to provide for mergers among certain of the
Subsidiaries of Plum Creek and the Spincos to occur substantially simultaneously
with the Effective Time; provided, however, that no such change shall (i) alter
or change the amount or kind of consideration to be issued to holders of Units
as provided for in this Agreement, (ii) adversely affect the proposed accounting
treatment for the Mergers or the proposed tax-free treatment for the Mergers and
to the holders of the Units, (iii) materially delay the consummation of the
transactions contemplated by this Agreement or (iv) adversely affect the
Georgia-Pacific Group.
Section 6.20 Timber Agreements. Prior to the Redemption Date, G-P and
-----------------
its Subsidiaries shall not enter into, modify or amend any timber supply
agreement attributed to the Timber Group that would not allow such contract to
qualify under section 631(b) of the Code. G-P will cause each timber cutting
contract to be entered into by any entity in the Timber Group to be assignable
to any Affiliate that has access and the legal or equitable right to harvest the
trees that are the subject of such contract and will release the contracting
entity from any liability upon such assignment.
ARTICLE VII
CONDITIONS TO THE NOTICE OF REDEMPTION AND MERGERS
Section 7.01 Conditions to the Notice of Redemption. The obligations of
--------------------------------------
G-P and Plum Creek to effect the Notice of Redemption and the Mergers are
subject to the
<PAGE>
satisfaction or waiver of the following conditions on or prior to the Notice of
Redemption Date:
(a) the requisite Plum Creek Stockholder Approval and Timber Group
Shareholder Approval shall have been obtained at the Plum Creek Stockholder
Meeting and Timber Group Shareholder Meeting, respectively;
(b) no Governmental Authority or Federal or state court of competent
jurisdiction shall have enacted, issued, promulgated, enforced or entered any
statute, rule, regulation, executive order, decree, judgment, injunction or
other order (whether temporary, preliminary or permanent), in any case which is
in effect and which prevents or prohibits consummation of the Mergers or any
other transactions contemplated in this Agreement; provided, however, that the
-------- -------
parties shall use commercially reasonable efforts to cause any such decree,
judgment, injunction or other order to be vacated or lifted;
(c) the Plum Creek Common Stock to be issued in the Mergers shall have
been authorized for listing on the NYSE and the PE, subject to official notice
of issuance;
(d) the Merger Registration Statement shall have become effective in
accordance with the provisions of the Securities Act, no stop order suspending
the effectiveness of the Merger Registration Statement shall have been issued by
the SEC and no proceedings for that purpose shall have been initiated by the SEC
and not concluded or withdrawn and all state securities or blue sky
authorizations necessary to carry out the transactions contemplated hereby shall
have been obtained and be in effect;
(e) the receipt of a private letter ruling from the IRS (the "Private
Letter Ruling") reasonably satisfactory to both Plum Creek and G-P concluding
that the Redemption will be governed by sections 355(a) and (c) and, if
applicable, section 361(c) of the Code and that the Mergers shall not alter such
conclusion;
(f) the applicable waiting period, together with any extensions thereof,
under the HSR Act shall have expired or been terminated;
(g) neither Plum Creek nor G-P shall be advised by its respective counsel
that a Transaction Termination Event exists as of the Notice of Redemption Date;
and
(h) Southeastern Asset Management shall have provided assurances with
respect to their intent with respect to any shares of Timber Group Common Stock
that it owns immediately prior to the Redemption which are reasonably required
so that section 355(e) of the Code does not apply to the Separation and the
Redemption.
Section 7.02 Conditions of Plum Creek. The obligations of Plum Creek to
------------------------
effect the Notice of Redemption and the Mergers are also subject to the
satisfaction or waiver of the following conditions on or prior to the Notice of
Redemption Date (provided that if such
<PAGE>
conditions are satisfied or waived on or prior to such date and the Notice of
Redemption is sent, such conditions will be deemed to be satisfied with respect
to the Mergers):
(a) Each of the representations and warranties of G-P contained in this
Agreement that are qualified as to materiality must be true and correct in all
respects and those representations and warranties not so qualified must be true
and correct in all material respects, other than with respect to the
representations and warranties contained in Section 4.16 which must be true and
correct except as would not be reasonably expected to have a G-P Material
Adverse Effect, in each case, when made and at the Notice of Redemption Date as
if made again at that time (except to the extent that any representation or
warranty speaks as of an earlier date, in which case it must be true and correct
only as of that earlier date);
(b) G-P shall have performed or complied in all material respects with all
agreements and covenants required by this Agreement to be performed or complied
with by it on or prior to the Notice of Redemption Date;
(c) G-P shall have delivered to Plum Creek an officer's certificate
certifying that as of the Notice of Redemption Date, all conditions set forth in
Section 7.02(a) and (b) have been satisfied;
(d) Plum Creek shall have received the favorable opinions of G-P's outside
legal counsel, King & Spalding, and the General Counsel of G-P, each dated the
Notice of Redemption Date substantially in the form of Exhibit G;
(e) Plum Creek shall have received the opinion of Skadden Arps, Slate,
Meagher & Flom LLP, special counsel to Plum Creek, dated as of the Notice of
Redemption Date, in form and substance reasonably satisfactory to Plum Creek,
based upon facts, representations and assumptions set forth in such opinion
which are consistent with the state of facts existing at the Notice of
Redemption Date, to the effect that (i) the Mergers will be treated for Federal
income tax purposes as reorganizations qualifying under the provisions of
section 368(a) of the Code, and Plum Creek and the Spincos will each be a party
to a reorganization, and (ii) after the Mergers, the Surviving Corporation will
continue to qualify as a Real Estate Investment Trust for U.S. income tax
purposes. Plum Creek may unilaterally waive any of the conditions in the
preceding sentence. In rendering such opinion, counsel may require and rely upon
certain representations contained in certificates of officers of Plum Creek, G-P
and certain stockholders of Plum Creek and shareholders of G-P;
(f) The "earnings and profits" (as defined for U.S. income tax purposes)
of the Spincos, collectively, immediately following the Separation shall not
exceed the agreed-upon amount (as defined in Section 7.02(f) of the G-P
Disclosure Letter and the Plum Creek Disclosure Letter);
<PAGE>
(g) G-P shall have delivered to Plum Creek, executed by G-P and the
Spincos, as the case may be:
(i) the Timber Group Timber Agreements;
(ii) the Tax Matters Agreement;
(iii) Human Resources Agreement;
(iv) Transition Services Agreement; and
(v) Noncompete Agreement; and
(h) Since the date of this Agreement, there shall not have been any event,
occurrence or condition which would reasonably be expected to have a Timber
Group Material Adverse Effect.
Section 7.03 Conditions to Obligations of G-P. The obligations of G-P to
--------------------------------
effect the Notice of Redemption and the Mergers are also subject to the
satisfaction or wavier of the following conditions on or prior to the Notice of
Redemption Date (provided that if such conditions are satisfied or waived on or
prior to such date and the Notice of Redemption is sent, such conditions will be
deemed to be satisfied or waived with respect to the Mergers):
(a) Each of the representations and warranties of Plum Creek contained in
this Agreement that are qualified as to materiality must be true and correct in
all respects and those representations and warranties not so qualified must be
true and correct in all material respects, in each case, when made and at the
Notice of Redemption Date, as if made again at that time (except to the extent
that any representation or warranty speaks as of an earlier date, in which case
it must be true and correct only as of that earlier date);
(b) Plum Creek shall have performed or complied in all material respects
with all agreements and covenants required by this Agreement to be performed or
complied with by it on or prior to the Notice of Redemption Date;
(c) G-P shall have received the favorable opinions of Plum Creek's outside
legal counsel, Skadden, Arps, Slate, Meagher & Flom, LLP, and the General
Counsel of Plum Creek each dated the Notice of Redemption Date substantially in
the form of Exhibit H;
(d) Plum Creek shall have delivered to G-P an officer's certificate
certifying that as of the Notice of Redemption Date, all conditions set forth in
Section 7.03(a) and (b) have been satisfied;
(e) G-P shall have received the opinion of McDermott Will & Emery, special
counsel to G-P, in form and substance reasonably satisfactory to G-P, based upon
facts,
<PAGE>
representations and assumptions set forth in such opinion which are consistent
with the state of facts existing at the Notice of Redemption Date, to the effect
that the Mergers will be treated for Federal income tax purposes as
reorganizations qualifying under the provisions of section 368(a) of the Code,
and Plum Creek and the Spincos will each be a party to a reorganization;
(f) Plum Creek shall have executed and delivered to G-P:
(i) the Timber Group Timber Agreements;
(ii) the Tax Matters Agreement;
(iii) Human Resources Agreement;
(iv) Transition Services Agreements; and
(v) Noncompete Agreement;
(g) Since the date of this Agreement, there shall not have been any event,
occurrence or condition which would reasonably be expected to have a Plum Creek
Material Adverse Effect; and
(h) The condition set forth in Section 7.02(e)(ii) shall have been
satisfied and not waived.
Section 7.04 Conditions to Obligations of Plum Creek to Effect the Merger
------------------------------------------------------------
The obligation of Plum Creek to effect the Mergers and the other transactions
contemplated in this Agreement is also subject to the satisfaction or waiver of
the following conditions:
(a) The Spinoff shall have occurred;
(b) G-P shall not have failed to perform or comply in all material
respects with all agreements and covenants required by this Agreement to be
performed or complied with by it after the Notice of Redemption Date and on or
prior to the Effective Time, the effect of which would be to prevent the
satisfaction of the condition contained in Section 7.02(e) had such failure
occurred prior to the Notice of Redemption Date;
(c) G-P shall have delivered to Plum Creek an officer's certificate
certifying that as of the Effective Date, all conditions set forth in Section
7.04(a) and (b) have been satisfied;
(d) no Governmental Authority or Federal or state court of competent
jurisdiction shall have enacted, issued, promulgated, enforced or entered any
statute, rule, regulation, executive order, decree, judgment, injunction or
other order (whether temporary, preliminary or permanent), in any case which is
in effect and which prevents or prohibits
<PAGE>
consummation of the Mergers or any other transactions contemplated in this
Agreement; provided, however, that the parties shall use commercially reasonable
-------- -------
efforts to cause any such decree, judgment, injunction or other order to be
vacated or lifted;
(e) Southeastern Asset Management shall have confirmed the assurances
provided pursuant to Section 7.01(h);
(f) the Rights with respect to the Timber Group Common Stock have been
terminated or redeemed effective upon the Redemption; and
(g) G-P shall have complied with the provisions of Section 6.05(a)(ii).
Section 7.05 Conditions to Obligations of G-P to Effect the Mergers.
------------------------------------------------------
The obligation of G-P and each of the Spincos to effect the Spinoff and the
Mergers and the other transactions contemplated in this Agreement is also
subject to the following conditions:
(a) Plum Creek shall not have failed to perform or comply in all material
respects with all agreements and covenants required by this Agreement to be
performed or complied with by it after the Notice of Redemption Date and on or
prior to the Effective Time, the effect of which would be to prevent the
satisfaction of the condition contained in Section 7.03(e) had such failure
occurred prior to the Notice of Redemption Date;
(b) Plum Creek shall have delivered to G-P an officer's certificate
certifying that as of the Effective Date, all conditions set forth in Section
7.05(a) have been satisfied;
(c) no Governmental Authority or Federal or state court of competent
jurisdiction shall have enacted, issued, promulgated, enforced or entered any
statute, rule, regulation, executive order, decree, judgment, injunction or
other order (whether temporary, preliminary or permanent), in any case which is
in effect and which prevents or prohibits consummation of the Mergers or any
other transactions contemplated in this Agreement; provided, however, that the
-------- -------
parties shall use commercially reasonable efforts to cause any such decree,
judgment, injunction or other order to be vacated or lifted; and
(d) Southeastern Asset Management shall have confirmed the assurances
provided pursuant to Section 7.01(h).
ARTICLE VII
TERMINATION AND ABANDONMENT
Section 8.01 Termination. Except as otherwise provided in this Section
-----------
8.01, this Agreement may be terminated at any time prior to the Effective Time,
whether before or after Timber Group Shareholder Approval or Plum Creek
Stockholder Approval:
<PAGE>
(a) by mutual written consent of Plum Creek and G-P;
(b) on or prior to the Notice of Redemption Date, by Plum Creek (provided
that Plum Creek is not then in material breach of any representation, warranty,
covenant or other agreement contained herein), if (i) there has been a breach by
G-P of any of its representations, warranties, covenants or agreements contained
in this Agreement, or any such representation and warranty shall have become
untrue, in any such case that Section 7.02(a) or Section 7.02(b) will not be
satisfied and such breach or condition has not been cured within thirty days
following receipt by G-P of written notice of such breach or (ii) the conditions
contained in Section 7.01(e) or 7.02(h) shall not be capable of being satisfied;
(c) on or prior to the Notice of Redemption Date, by G-P (provided that G-
P is not then in material breach of any representation, warranty, covenant or
other agreement contained herein), if (i) there has been a breach by Plum Creek
of any of its representations, warranties, covenants or agreements contained in
this Agreement, or any such representation and warranty shall have become
untrue, in any such case such that Section 7.03(a) or Section 7.03(b) will not
be satisfied and such breach or condition has not been promptly cured within
thirty days following receipt by Plum Creek of written notice of such breach or
(ii) the conditions contained in 7.01(e) or 7.03(g) shall not be capable of
being satisfied;
(d) by either Plum Creek or G-P if any decree, permanent injunction,
judgment, order or other action by any court of competent jurisdiction or any
Governmental Authority preventing or prohibiting consummation of the Mergers
shall have become final and nonappealable;
(e) by either Plum Creek or G-P if the Mergers shall not have been
consummated prior to the twelve month anniversary of the execution of this
Agreement, unless the failure of the Closing to occur by such date shall be due
to the failure of the party seeking to terminate this Agreement to perform or
observe in all material respects the covenants and agreements of such party set
forth herein; provided, however, that if Section 7.01(e) has not been satisfied,
-------- -------
this Agreement may be extended not more than three months by Plum Creek or G-P
by written notice to the other party; and provided further, however, that if
-------- ------- -------
Section 7.01(g) has not been satisfied due to Plum Creek having received advice
from its counsel that a Transaction Termination Event under clause (iii) of such
definition exists, this Agreement may be extended for not more than three months
by G-P by written notice to Plum Creek and at the end of such three month
period, if Section 7.01(g) continues to remain unsatisfied and is not waived,
this Agreement may be extended for not more than another three months by G-P by
written notice to Plum Creek.
(f) on or prior to the Notice of Redemption Date, by either Plum Creek or
G-P if the requisite Plum Creek Stockholder Approval or Timber Group Shareholder
Approval is not obtained at the Plum Creek Stockholder Meeting or the Timber
Group Shareholder Meeting, respectively;
<PAGE>
(g) on or prior to the Notice of Redemption Date, by Plum Creek if the
Board of Directors of G-P shall not have recommended or shall have modified in a
manner materially adverse to Plum Creek its recommendation of this Agreement,
the Mergers and the transactions contemplated hereby in accordance with Section
6.10, provided, however, that Plum Creek notifies G-P of termination pursuant to
-------- -------
this subsection within 30 days of receipt of written notice from G-P that the
Board of Directors of G-P has failed to recommend or so modified its
recommendation;
(h) on or prior to the Notice of Redemption Date, by G-P if the Board of
Directors of Plum Creek shall not have recommended or shall have modified in a
manner materially adverse to G-P its recommendation of this Agreement, the
Mergers and the transactions contemplated hereby in accordance with Section
6.10, provided, however, that G-P notifies Plum Creek of termination pursuant to
-------- -------
this subsection within 30 days of receipt of written notice from Plum Creek that
the Board of Directors of Plum Creek has failed to recommend or so modified its
recommendation;
(i) by G-P, if the Board of Directors of G-P, after consultation with and
based upon the advice of outside legal counsel and its financial advisers, shall
have determined in good faith that approving and entering into an agreement in
connection with a G-P Bona Fide Proposal for a G-P Acquisition Transaction in
whole or in part, and consummating such proposal would result in a transaction
more favorable to its shareholders from a financial point of view than the
transactions contemplated by this Agreement; provided, however, that this
-------- -------
Agreement may not be terminated pursuant to this Section 8.01(i) unless (i) G-P
shall have complied with Section 6.11, (ii) concurrent with the termination, G-P
pays to Plum Creek a termination fee in the amount of $100 million by wire
transfer of immediately available funds and (iii) G-P shall have provided Plum
Creek with at least three Business Days advance notice of such termination; or
(j) by Plum Creek, if the Board of Directors of Plum Creek, after
consultation with and based upon the advice of outside legal counsel and its
financial advisers, shall have determined in good faith that approving and
entering into an agreement in connection with a Plum Creek Bona Fide Proposal
for a Plum Creek Acquisition Transaction, and consummating such proposal would
result in a transaction more favorable to its shareholders from a financial
point of view than the transactions contemplated by this Agreement; provided,
--------
however, that this Agreement may not be terminated pursuant to this Section
-------
8.01(i) unless (i) Plum Creek shall have complied with Section 6.11, (ii)
concurrent with the termination, Plum Creek pays to G-P a termination fee in the
amount of $100 million by wire transfer of immediately available funds and (iii)
Plum Creek shall have provided G-P with at least three Business Days advance
notice of such termination.
(k) by G-P, if the Board of Directors of G-P shall be unable, after
complying with the provisions of Section 4.28(b), to obtain either of the
Solvency Opinions when due; provided, however, that this Agreement may not be
-------- -------
terminated pursuant to this Section
<PAGE>
8.01(k) unless concurrent with the termination, G-P pays to Plum Creek a
termination fee in the amount of $100 million by wire transfer of immediately
available funds.
Section 8.02 Effect of Termination.
---------------------
(a) In the event of termination of this Agreement by either G-P or Plum
Creek pursuant to Section 8.01, this Agreement shall forthwith become void,
there shall be no liability under this Agreement on the part of Plum Creek or G-
P, except to the extent that such termination results from the material breach
by a party of any of its representations, warranties, covenants or agreements
set forth in this Agreement; provided, however, that the provisions of Sections
-------- -------
6.02 and 8.02 of this Agreement shall remain in full force and effect and shall
survive any termination of this Agreement.
(b) In the event of termination of this Agreement by Plum Creek pursuant
to Section 8.01(g), so long as at the time of such termination Plum Creek is not
in material breach of any representation, warranty or material covenant
contained herein, G-P shall make payment to Plum Creek (within two Business Days
after notice of demand for payment) by wire transfer of immediately available
funds of a termination fee in the amount of $100 million.
(c) In the event of termination of this Agreement by G-P pursuant to
Section 8.01(h), so long as at the time of such termination G-P is not in
material breach of any representation, warranty or material covenant contained
herein, Plum Creek shall make payment to G-P (within two Business Days of notice
of demand for payment) by wire transfer of immediately available funds of a
termination fee in the amount of $100 million.
(d) In the event of termination of this Agreement by either party pursuant
to Section 8.01(f) based upon G-P having failed to receive the requisite Timber
Group Shareholder Approval, then so long as (i) at the time of such termination
Plum Creek is not in material breach of any representation, warranty or material
covenant contained herein, (ii) prior to the Timber Group Shareholder Meeting a
G-P Bona Fide Proposal has been publicly announced, disclosed or communicated
and (iii) within nine months of such termination G-P shall consummate or enter
into any agreement with respect to a G-P Bona Fide Proposal, G-P shall make
payment to Plum Creek (within two Business Days after notice of demand for
payment) by wire transfer of immediately available funds of a termination fee in
the amount of $100 million.
(e) In the event of termination of this Agreement by either party pursuant
to Section 8.01(f) based upon Plum Creek having failed to receive the requisite
Plum Creek Stockholder Approval to approve this Agreement and Mergers, then so
long as (i) at the time of such termination G-P is not in material breach of any
representation, warranty or material covenant contained herein (ii) prior to the
Plum Creek Stockholder Meeting a Plum Creek Bona Fide Proposal has been publicly
announced, disclosed or communicated and (iii) within nine months of such
termination Plum Creek shall consummate or enter into any agreement with respect
to a Plum Creek Bona Fide Proposal, Plum Creek shall make
<PAGE>
payment to G-P (within two Business Days of notice to demand for payment) by
wire transfer of immediately available funds of a termination fee in the amount
of $100 million.
(f) In the event of termination of this Agreement pursuant to Section
8.01(i), (j) or (k), a termination fee will be payable in accordance with such
sections.
ARTICLE IX
MISCELLANEOUS
Section 9.01 Fees and Expenses.
-----------------
(a) In the event of termination of this Agreement pursuant to Article IX
herein, all costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby, including, without limitation, the fees
and disbursements of counsel, financial advisors, accountants, actuaries and
consultants, shall be paid by the party incurring such costs and expenses,
provided that all printing expenses, SEC and HSR filing fees shall be divided
equally between Plum Creek and G-P.
(b) If the Mergers and the transactions contemplated by this Agreement are
consummated, Plum Creek shall pay (i) its own costs and expenses, (ii) all HSR,
SEC and other filing fees, (iii) printing costs and (iv) the costs and expenses
listed on Section 9.01(b) of the G-P Disclosure Letter. Such schedule sets forth
a list of (A) the categories of costs and expenses expected to be incurred by G-
P in connection with this Agreement and the transactions contemplated by this
Agreement and (B) a good faith estimate of the amount of each listed cost and
expense. In addition to those expenses allocated to G-P pursuant to Section 4(c)
of the Tax Matters Agreement, G-P shall be responsible for (i) any legal and
advisory fees and expenses associated with G-P's obtaining comfort with respect
to Section 4.28 and (ii) 25% of the legal fees and expenses incurred by it which
are reasonably allocable to the Spinoff.
Section 9.02 Survival of Representations and Warranties. Neither the
------------------------------------------
representations or warranties contained in this Agreement or in any certificate
or instrument delivered pursuant to this Agreement nor any covenant, agreement,
undertaking or obligation to be fully performed and complied with prior to the
Closing Date shall survive the Closing. After the Closing Date, neither G-P,
Spincos nor Plum Creek shall have any liability (for indemnification or
otherwise) with respect to any representation or warranty contained in this
Agreement or in any certificate or instrument delivered pursuant to this
certificate or with respect to any covenant, agreement, undertaking or
obligation to be fully performed and complied with prior to the Notice of
Redemption Date, provided, however, that nothing contained in this Section 9.02
-------- -------
shall relieve any party of any liability for breach of any obligations to be
performed after the Notice of Redemption Date if written notice with respect to
any such liability as to which Plum Creek or G-P has actual knowledge is given
prior to the Effective Time.
<PAGE>
Section 9.03 Notices. All notices, requests, demands, waivers and other
-------
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been duly given if delivered in person or
mailed, certified or registered mail with postage prepaid, or sent by telex,
telegram or facsimile, as follows:
(a) if to G-P, to it at:
133 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attention: General Counsel
Facsimile: (404) 230-7543
with a copy (which shall not constitute notice) to:
Simpson Thacher & Bartlett
425 Lexington Avenue
New York, New York 10017
Attention: Mario A. Ponce
Facsimile: (212) 455-2500
and to
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303
Attention: William R. Spalding
Facsimile: (404) 572-5100
(b) if to Plum Creek, to it at:
999 Third Avenue, Suite 2300
Seattle, Washington 98104
Attention: General Counsel
Facsimile: (206) 467-3799
with a copy (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom, LLP
300 South Grand Avenue
Los Angeles, California 90071
Attention: Joseph J. Giunta
Gregg A. Noel
Facsimile: (213) 687-5600
<PAGE>
or to such other Person or address as any party shall specify by notice in
writing to each of the other parties. All such notices, requests, demands,
waivers and communications shall be deemed to have been received on the date of
delivery unless if mailed, in which case on the third Business Day after the
mailing thereof except for a notice of a change of address, which shall be
effective only upon receipt thereof.
Section 9.04 Entire Agreement. This Agreement and the schedules and
----------------
other documents referred to herein or delivered pursuant hereto, collectively
contain the entire understanding of the parties hereto with respect to the
subject matter contained herein and supersede all prior agreements and
understandings, oral and written, with respect thereto.
Section 9.05 Binding Effect; Benefit; Assignment. This Agreement shall
-----------------------------------
inure to the benefit of and be binding upon the parties hereto, their respective
successors and permitted assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto without the prior written consent of the other parties. Nothing
in this Agreement, expressed or implied, is intended to confer on any Person
other than the parties hereto or their respective successors and permitted
assigns, any rights, remedies, obligations or liabilities under or by reason of
this Agreement.
Section 9.06 Amendment and Modification. Subject to applicable law, this
--------------------------
Agreement may be amended, modified and supplemented in writing by the parties
hereto in any and all respects before the Effective Time (notwithstanding Timber
Group Shareholder Approval, approval of G-P as the sole stockholder of each of
the Spincos, and Plum Creek Stockholder Approval), by action taken by the
respective Boards of Directors of Plum Creek and G-P or by the respective
officers authorized by such Boards of Directors or otherwise, as the case may
be; provided, however, that after the Plum Creek Stockholder Approval and the
Timber Group Shareholder Approval, no amendment shall be made which by law
requires further approval by the stockholders of Plum Creek Common Equity or
shareholders of G-P Common Stock without such further approval.
Section 9.07 Further Actions. Each of the parties hereto agrees that,
---------------
except as otherwise provided in this Agreement and subject to its legal
obligations, it will use commercially reasonable efforts to fulfill all
conditions precedent specified herein, to the extent that such conditions are
within its control, and to do all things reasonably necessary to consummate the
transactions contemplated hereby.
Section 9.08 Headings. The descriptive headings of the several Articles
--------
and Sections of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.
Section 9.09 Enforcement. The parties agree that irreparable damage
-----------
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms. It is accordingly agreed that
the parties shall be entitled to specific performance of the terms hereof, this
being in addition to any other remedy to which they are entitled at law or in
equity.
Section 9.10 Counterparts. This Agreement may be executed in several
------------
counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument.
<PAGE>
Section 9.11 Applicable Law. This Agreement and the legal relations
--------------
between the parties hereto shall be governed by and construed in accordance with
the laws of the State of Delaware, without regard to the conflict of laws rules
thereof.
Section 9.12 Severability. If any term, provision, covenant or
------------
restriction contained in this Agreement is held by a court of competent
jurisdiction or other authority to be invalid, void, unenforceable or against
its regulatory policy, the remainder of the terms, provisions, covenants and
restrictions contained in this Agreement shall remain in full force and effect
and shall in no way be affected, impaired or invalidated.
Section 9.13 Waiver of Jury Trial. Each of the parties to this Agreement
--------------------
hereby irrevocably waives all right to a trial by jury in any action, proceeding
or counterclaim arising out of or relating to this Agreement or the transactions
contemplated hereby.
[SIGNATURE PAGE FOLLOWS]
<PAGE>
IN WITNESS WHEREOF, Plum Creek, G-P and each of the Spincos has caused this
Agreement to be executed by their respective officers thereunto duly authorized,
all as of the date first above written.
PLUM CREEK TIMBER COMPANY, INC.
By: /s/ Rick R. Holley
------------------------
Name: Rick R. Holley
Title: President and Chief
Executive Officer
GEORGIA-PACIFIC CORPORATION
By: /s/ A.D. Correll
------------------------
Name: A.D. Correll
Title: Chairman, Chief Executive
Officer and President
NORTH AMERICAN TIMBER CORP.
By: /s/ Kenneth F. Khoury
------------------------
Name: Kenneth F. Khoury
Title: Vice President, Deputy General
Counsel and Secretary
NPI TIMBER, INC.
By: /s/ Kenneth F. Khoury
------------------------
Name: Kenneth F. Khoury
Title: Vice President, Deputy General
Counsel and Secretary
GNN TIMBER, INC.
By: /s/ Kenneth F. Khoury
------------------------
Name: Vice President, Deputy General
Counsel and Secretary
<PAGE>
Title: Vice President, Deputy General
Counsel and Secretary
GPW TIMBER, INC.
By: /s/ Kenneth F. Khoury
---------------------------
Name: Kenneth F. Khoury
Title: Vice President, Deputy General
Counsel and Secretary
LRFP TIMBER, INC.
By: /s/ Kenneth F. Khoury
---------------------------
Name: Kenneth F. Khoury
Title: Vice President, Deputy General
Counsel and Secretary
NPC TIMBER, INC.
By: /s/ Kenneth F. Khoury
---------------------------
Name: Kenneth F. Khoury
Title: Vice President, Deputy General
Counsel and Secretary
