<PAGE> 1
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
----------
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported) JULY 1, 1999
PLUM CREEK TIMBER COMPANY, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 1-10239 91-1912863
(State or other jurisdiction of (Commission (I.R.S. Employer
incorporation or organization) File Number) Identification No.)
999 THIRD AVENUE, SUITE 2300 98104-4096
SEATTLE, WASHINGTON (Zip Code)
(Address of principal executive offices)
Registrant's telephone number, including area code (206) 467-3600
<PAGE> 2
ITEM 5. OTHER EVENTS
On July 1, 1999, Plum Creek Timber Company, L.P., a Delaware limited
partnership (the "Partnership") completed its conversion from a publicly traded
limited partnership to a publicly traded real estate investment trust. This
conversion was accomplished through the simultaneous merger of the Partnership
with and into a wholly-owned subsidiary of Plum Creek Timber Company, Inc., a
Delaware corporation (the "Corporation"), and the merger of Plum Creek
Management Company, L.P., a Delaware limited partnership and the former general
partner of the Partnership, with and into the Corporation.
As a result of the completed mergers and the resulting exchange of the
Partnership's outstanding depositary units for the Corporation's common stock,
the Corporation became the successor registrant to the Partnership under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), with respect
to its common stock, and will succeed to the Partnership's reporting obligations
thereunder. Pursuant to Rule 12g-3, promulgated under the Exchange Act, the
common stock of the Corporation is deemed to be registered under paragraph (b)
of Section 12 of the Exchange Act.
The Corporation's common stock will trade under the same symbol ("PCL")
on the New York Stock Exchange. In addition, the Corporation's common stock is
listed on the Pacific Exchange under the same symbol. A copy of the press
release announcing the completion of the conversion is attached hereto as an
exhibit and is incorporated herein by reference.
The description of the Corporation's securities is incorporated by
reference from the description set forth under the heading "Description of
Capital Stock" in the Prospectus contained in the registrant's Registration
Statement on Form S-4, as amended, filed with the Securities and Exchange
Commission on January 28, 1999 (Registration No. 333-71371).
Letters of Transmittal are being sent to the former holders of the
Partnership's depositary unit certificates requesting that they exchange their
depositary unit certificates for certificates representing shares of the
Corporation's common stock.
ITEM 7. EXHIBITS
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------ -----------
<S> <C>
2.1 Agreement and Plan of Merger, dated as of July 17, 1998, by and
among Plum Creek Timber Company, L.P., Plum Creek Timber
Company, Inc. and Plum Creek Acquisition Partners, L.P.*
2.2 Agreement and Plan of Merger, dated as of July 17, 1998, by and
between Plum Creek Timber Company, Inc. and Plum Creek
Management Company, L.P.*
3.1 Certificate of Incorporation of the Registrant
3.2 Amended and Restated Bylaws of the Registrant*
99.1 Press Release, dated July 1, 1999
</TABLE>
2
<PAGE> 3
* Incorporated by reference to the Registration Statement on Form S-4, as
amended, of Plum Creek Timber Company, Inc., filed with the Securities and
Exchange Commission (Registration No. 333-71371) dated January 28, 1999.
3
<PAGE> 4
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
PLUM CREEK TIMBER COMPANY, INC.
By: /s/ James A. Kraft
---------------------------------
James A. Kraft
Vice President, General Counsel
and Secretary
Date: July 1, 1999
4
<PAGE> 5
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------ -----------
<S> <C>
2.1 Agreement and Plan of Merger, dated as of July 17, 1998, by and
among Plum Creek Timber Company, L.P., Plum Creek Timber
Company, Inc. and Plum Creek Acquisition Partners, L.P.*
2.2 Agreement and Plan of Merger, dated as of July 17, 1998, by and
between Plum Creek Timber Company, Inc. and Plum Creek
Management Com pany, L.P.*
3.1 Certificate of Incorporation of the Registrant
3.2 Amended and Restated Bylaws of the Registrant*
99.1 Press Release, dated July 1, 1999
</TABLE>
* Incorporated by reference to the Registration Statement on Form S-4, as
amended, of Plum Creek Timber Company, Inc., filed with the Securities and
Exchange Commission (Registration No. 333-71371) dated January 28, 1999.
5
<PAGE> 1
EXHIBIT 3.1
CERTIFICATE OF INCORPORATION
OF
PLUM CREEK TIMBER COMPANY, INC.
1. FIRST: The name of the corporation is: Plum Creek Timber Company, Inc.
(hereinafter, the "Corporation").
2. SECOND: The address of the registered office of the Corporation in the
State of Delaware is The Corporation Trust Company, 1209 Orange Street,
in the City of Wilmington, County of New Castle. The name of its
registered agent at such address is The Corporation Trust Company.
3. THIRD: The nature of the business or purposes to be conducted or
promoted is to engage in any lawful act or activity for which
corporations may be organized under the General Corporation Law of the
State of Delaware (the "GCL").
4. FOURTH: A. The total number of shares of all classes of capital stock
that the Corporation shall have authority to issue is 525,634,567
shares of which (i) 300,000,000 shares shall be shares of Common Stock,
par value $.01 per share (the "Common Stock"), and 634,566 shares shall
be shares of Special Voting Common Stock, par value $.01 per share (the
"Special Voting Stock") (the Common Stock and the Special Voting Stock
being collectively referred to herein as the "Common Equity"), (ii)
150,000,001 shares shall be shares of Excess Stock, par value $.01 per
share (the "Excess Stock"), and (iii) 75,000,000 shares shall be shares
of Preferred Stock, par value $.01 per share (the "Preferred Stock").
B. The number of authorized shares of any class or classes of
capital stock may be increased or decreased (but not below the
number of shares thereof then outstanding) by the affirmative
vote of the holders of a majority of the total voting power of
the shares of capital stock entitled to vote thereon, voting
together as a single class, and without the vote of the holders
of such class or each such class.
C. The following is a statement of the powers, preferences, and
relative participating, optional or other special rights and
qualifications, limitations and restrictions of the Common Stock
and Special Voting Stock of the Corporation:
1. Except as otherwise set forth below in this Article FOURTH,
the powers, preferences and relative participating, optional or other special
rights and qualifications, limitations or restrictions of the Common Stock and
Special Voting Stock shall be identical in all respects.
6
<PAGE> 2
2. Subject to the rights of the holders of Preferred Stock, and
subject to any other provisions of this Certificate of Incorporation, holders of
Common Stock shall be entitled to receive such dividends and other distributions
in cash, stock or property of the Corporation as may be declared thereon by the
Board of Directors of the Corporation from time to time out of assets or funds
of the Corporation legally available therefor. If any dividend or other
distribution in cash or other property is paid with respect to the Common Stock
a like dividend or other distribution shall be paid with respect to each share
of Special Voting Stock. Upon any reclassification, subdivision or combination
of Common Stock or upon payment of any in-kind dividend of additional shares of
Common Stock with respect to the Common Stock, the Special Voting Stock shall be
similarly reclassified, subdivided or combined or the Special Voting Stock will
receive the same in-kind dividend, provided, however, that such in-kind divided
shall consist of additional shares of Special Voting Stock.
3. (a) At every meeting of the stockholders of the
Corporation, every holder of Common Equity (voting together as a single class,
except as set forth below) shall be entitled to one vote in person or by proxy
for each share of Common Stock or Special Voting Stock standing in such holder's
name on the transfer books of the Corporation, provided, however, that should
any Change in Law (as defined in Article ELEVENTH) require a reduction in the
number of votes represented by the Special Voting Stock, the number of votes to
which a holder of Special Voting Stock shall, without any further action on the
part of the Corporation or the stockholders, be reduced to the extent reasonably
necessary or appropriate to maintain the Corporation's status as a REIT (as
defined in Article ELEVENTH), such reduction to be deemed to have been made as
of the effective date of such Change in Law. Except as may be otherwise required
by this Article FOURTH or applicable law, the holders of Common Stock and
Special Voting Stock shall vote together as a single class, subject to any
voting rights which may be granted to holders of Preferred Stock or Special
Voting Stock, on all matters submitted to a vote of the holders of Common
Equity.
(b) Subject to any rights of the holders of Preferred
Stock and or Special Voting Stock set forth in clause (c) hereof, the provisions
of this Certificate of Incorporation shall not be modified, revised, altered or
amended, repealed or rescinded in whole or in part, without the approval of a
majority (or such greater percentage as is required by Article TENTH of this
Certificate of Incorporation) of the votes entitled to be cast by the holders of
the Common Stock and the Special Voting Stock, voting together as a single class
or, in the case of amendments or changes to this Certificate of Incorporation to
be effected by a merger, without the approval of the agreement of merger by a
majority of the votes entitled to be cast by the holders of the Common Stock and
the Special Voting Stock, voting together as a single class; provided, however,
that with respect to any proposed amendment of this Certificate of Incorporation
(including, without limitation, an amendment to be effected by a merger) which
would increase or decrease the par value of the shares of Common Stock or
Special Voting Stock or alter or change the powers, preferences or special
rights of the shares of Common Stock or Special Voting Stock so as to affect
them adversely, the approval of a majority of the votes entitled to be cast by
the holders of the shares affected by the proposed amendment, voting separately
as a class, shall be obtained in addition to the approval of a majority of the
votes entitled to be cast by the holders of the Common Stock and the Special
Voting Stock voting together as a single class as hereinbefore provided. Any
increase in the authorized number of shares of any class or
7
<PAGE> 3
classes of stock of the Corporation or creation, authorization or issuance of
any additional class or series of stock or any securities convertible into, or
warrants, options or similar rights to purchase, acquire or receive, shares of
any such class or classes of stock shall be deemed not to affect adversely the
powers, preferences or special rights of the shares of Common Stock or Special
Voting Stock.
(1) So long as the Principals (as defined in Article
ELEVENTH) Beneficially Own (as defined in Article ELEVENTH) at least five
million shares of Common Stock and/or Special Voting Stock, the Corporation
shall not enter into any Extraordinary Transaction (as defined in Article
ELEVENTH), without (in addition to any vote of the holders of Common Equity
required under this Certificate of Incorporation, the GCL or any other
applicable law) the approval of the holders of a majority of the outstanding
shares of Special Voting Stock, voting together as a separate class, provided,
however, that the Board of Directors of the Corporation, in connection with the
issuance of units of limited partnership of Plum Creek Acquisition Partners,
L.P., may issue shares of Preferred Stock with the right to vote together with
the Special Voting Stock, as a single class, with respect to any or all
Extraordinary Transactions.
4. In the event of any dissolution, liquidation or winding up of
the affairs of the Corporation, whether voluntary or involuntary, after payment
in full of the amounts required to be paid to the holders of Preferred Stock,
the remaining assets and funds of the Corporation shall be distributed pro rata
to the holders of Common Equity based on the aggregate number of shares of
Common Equity outstanding. For the purposes of this section C.4, the voluntary
sale, conveyance, lease, exchange or transfer (for cash, shares of stock,
securities or other consideration) of all or substantially all of the assets of
the Corporation or a consolidation or merger of the Corporation with one or more
other corporations (whether or not the Corporation is the corporation surviving
such consolidation or merger) shall not be deemed to be a liquidation,
dissolution or winding up, voluntary or involuntary.
5. In the event that any shares of Common Equity are converted
into or exchanged for cash, securities or other property in connection with any
consolidation of the Corporation with one or more other Persons (as hereinafter
defined) or a merger of the Corporation with another Person, unless immediately
following such event, and resulting solely from the ownership of the securities
issued in connection therewith, a majority of the total voting power of the
surviving Person in such consolidation or merger is held by Persons that were
stockholders of the Corporation immediately prior to such event, or unless the
holders of Common Equity unanimously vote otherwise, each holder of a share of
Common Stock shall be entitled to receive with respect to such share at least
the same kind and amount of shares of stock and other securities and property
(including cash) receivable upon such consolidation or merger by each holder of
a share of Special Voting Stock, and each holder of a share of Special Voting
Stock shall be entitled to receive with respect to such share the same kind and
amount of shares of stock and other securities and property (including cash)
receivable upon such consolidation or merger by a holder of a share of Common
Stock.
6. (a) Any record holder of a share of Special Voting Stock may
at any time convert such share into one share of Common Stock by surrendering
the certificate for such share, accompanied by any required tax transfer stamps
and by a written notice by such record holder to the Corporation stating that
such record holder desires to convert such share of Special Voting Stock into a
share of Common Stock and requesting that the Corporation issue such Common
Stock to the Person named therein. To the extent permitted by law, such
voluntary conversion shall be deemed to have been effected at the close of
business on the date of such surrender.
8
<PAGE> 4
(1) (i) Except as provided in paragraph (ii) below, shares
of Special Voting Stock shall automatically convert into shares of Common Stock
immediately prior to the Transfer (as hereinafter defined) of such shares of
Special Voting Stock.
(1) Shares of Special Voting Stock shall not automati
cally convert to Common Stock if transferred to a Permitted
Transferee.
(2) Immediately upon any such automatic conversion of
the Special Voting Stock, the rights of the holder of such
share(s) of Special Voting Stock shall cease and such holder
shall be treated for all purposes as having become the record
owner of the Common Stock issuable upon such conversion;
provided, however, that such holder shall be entitled to receive
when paid any dividends declared on the Special Voting Stock as
of a record date preceding the time of such conversion and
unpaid as of the time of such conversion.
(2) A holder of Special Voting Stock may (i) Transfer such
Special Voting Stock without automatic conversion into Common Stock only in
connection with a Transfer that meets the qualifications of section C.6(b)(ii)
above and section C.6(d) below, and under no other circumstances, or (ii)
convert such share into shares of Common Stock as provided in section C.6(a)
above. No one other than that Person in whose name the Special Voting Stock is
originally registered on the stock ledger of the Corporation, or transferees or
successive trans ferees who receive the Special Voting Stock in connection with
a Transfer that meets the qualifications set forth in section C.6(b)(ii) above
and section C.6(d) below, shall by virtue of the acquisition of the certificate
for the Special Voting Stock have the status of an owner or holder of such
Special Voting Stock or be recognized as such by the Corporation or be otherwise
entitled to enjoy for its, his or her own benefit the special rights and powers
of a holder of the Special Voting Stock.
A holder of Special Voting Stock may at any and all times Transfer to
any Person the Common Stock issuable upon conversion of such Special Voting
Stock, except where such Transfer is restricted by applicable law.
(b) The shares of Special Voting Stock shall be transferred on
the books of the Corporation and a new certificate issued therefor, upon
presentation at the office of the Secretary of the Corporation (or at such
additional place or places as may from time to time be designated by the
Secretary of the Corporation) of the certificate for such share, in proper form
for transfer and accompanied by all requisite stock transfer tax stamps.
(3) The certificates for the shares of Special Voting Stock
shall bear a legend on the face thereof reading as follows:
"The Special Voting Stock of Plum Creek Timber Company, Inc. (the
"Corporation") represented by this certificate may not be Transferred (as
defined in the Certificate of Incorpora tion of this Corporation) to any person
or entity unless such Transfer meets the qualifications set forth in section
C.6(b)(ii) and (d) of Article FOURTH of the Certificate of Incorporation of this
Corporation and no person who receives this share in connection with a Transfer
that does not meet the qualifications prescribed by sections C.6(b)(ii) and (d)
of said Article FOURTH is entitled to own or to be registered as the record
holder of these shares of Special Voting Stock and such Special Voting Stock
will be automatically converted into
9
<PAGE> 5
Common Stock upon any such purported transfer. The record holder of this
certificate may at any time convert these shares of Special Voting Stock into
Common Stock, subject to compliance with Section C.6(a) of Article FOURTH of the
Certificate of Incorporation of this Corporation. Each holder of this
certificate, by accepting the same, accepts and agrees to all of the foregoing.
The Corporation will furnish without charge, to each stockholder who so
requests, a copy of the Certificate of Incorporation of the Corporation,
containing, among other things, a statement of the powers, designations,
preferences and relative, participating, optional or other special rights of
each class of stock or series thereof that the Corporation is authorized to
issue and the qualifications, limitations or restrictions of such preferences
and/or rights. Any such request shall be addressed to the Secretary of the
Corporation."
(4) For so long as shares of Special Voting Stock are
outstanding, the Corporation shall at all times reserve and keep available, out
of its authorized but unissued Common Stock, the number of shares of Common
Stock into which the Special Voting Stock shall then be convertible.
(5) In the event that the Principals cease to Beneficially Own
at least 5 million shares of Common Stock and/or Special Voting Stock, all of
the outstanding shares of Special Voting Stock, without any further action on
the part of the Corporation or the stockholders, shall convert into an equal
number of shares of Common Stock, and each outstanding certificate representing
Special Voting Stock shall thereafter represent the right to receive an equal
number of shares of Common Stock.
7. All rights to vote and all voting power (including, without
limitation thereto, the right to elect directors) shall be vested exclusively in
the holders of Common Equity, voting together as a single class, except as
otherwise expressly provided in this Certificate of Incorporation, in a
Preferred Stock Designation (as defined in section D of this Article FOURTH) or
as otherwise expressly required by applicable law.
D. The Board of Directors is hereby authorized to provide by
resolution or resolutions from time to time for the issuance of
shares of Preferred Stock in one or more series and, by filing a
certificate pursuant to the GCL (hereinafter, along with any
similar designation relating to any other series of Preferred
Stock which may hereafter be authorized, referred to as a
"Preferred Stock Designation," each of which shall be part of
this Certificate of Incorporation), to establish from time to
time the number of shares to be included in each such series,
and to fix the designation, powers (including voting powers),
preferences and rights of the shares of each such series and the
qualifications, limitations and restrictions thereof.
2. Restrictions on Ownership and Transfer of Equity Stock.
1. (a) Limitation on Beneficial Ownership.
(i) Except as provided in section E.3 of this
Article FOURTH, no person shall Beneficially Own (as hereinafter
defined) shares of Equity Stock (as hereinafter defined) in excess of
the Ownership Limit (as hereinafter defined).
(1) Except as provided in section E.3 of this
Article FOURTH, any purported Transfer that, if effective, would result
in any Person
10
<PAGE> 6
Beneficially Owning shares of Equity Stock in excess of the Ownership
Limit shall be void ab initio as to the Transfer of that number of shares of
Equity Stock which would cause the transferee to Beneficially Own Equity Stock
in excess of the Ownership Limit, and the intended transferee shall acquire no
rights in such shares of Equity Stock.
(2) Transfers Resulting in "Closely Held" Status. Any
purported Transfer of shares of Equity Stock that, if effective, would result in
the Corporation being "closely held" within the meaning of section 856(h) of the
Code (as hereinafter defined) shall be void ab initio as to the Transfer of that
number of shares of Equity Stock that would cause the Corporation to be "closely
held" within the meaning of Section 856(h) of the Code, and the intended
transferee shall acquire no rights in such shares of Equity Stock.
(3) Transfers Resulting in Ownership by fewer than 100
Persons. Any purported Transfer of shares of Equity Stock that, if effective,
would result in shares of Equity Stock being beneficially owned by fewer than
100 persons within the meaning of Section 856(a)(5) of the Code shall be void ab
initio and the intended transferee shall acquire no rights in such shares of
Equity Stock.
(4) Transfers Resulting in Corporation Failing to
Qualify as a "Domes tically Controlled REIT". Any purported Transfer of shares
of Equity Stock that, if effective, would result in the failure of the
Corporation to qualify as a "domestically controlled REIT" within the meaning of
Section 897(h)(4)(B) of the Code shall be void ab initio and the intended
transferee shall acquire no rights in the shares of Equity Stock which are the
subject of such purported Transfer.
(5) Transfers Resulting in Corporation Failing to
Qualify as a REIT. Any purported Transfer of shares of Equity Stock that, if
effective, would cause the Corporation to fail to qualify as a REIT (as
hereinafter defined) shall be void ab initio and the intended transferee shall
acquire no rights in the shares of Equity Stock which are the subject of such
purported Transfer.
2. Beneficial Owners Required to Provide Information.
(a) Annual Disclosure. Every Beneficial Owner of more
than 3%, or such lower percentages as are then required pursuant to regulations
under the Code, of the outstanding shares of any class or series of Equity Stock
of the Corporation shall, within 30 days after January 1 of each year, provide
to the Corporation a written statement or affidavit stating the name and address
of such Beneficial Owner, the number of shares of Equity Stock Beneficially
Owned by such Beneficial Owner and a description of how such shares are held.
Each such Beneficial Owner shall provide to the Corporation such additional
information as the Corporation may request in order to determine the effect, if
any, of such Beneficial Ownership on the Corporation's status as a REIT and to
ensure compliance with the Ownership Limit.
(1) Disclosure at the Request of the Corporation. Each
Person who is a Beneficial Owner of shares of Equity Stock and each Person
(including the stockholder of record) who is holding shares of Equity Stock for
a Beneficial Owner shall provide to the Corporation a written statement or
affidavit stating such information as the Corporation may request in order to
determine the Corporation's status as a REIT and to ensure compliance with
11
<PAGE> 7
the Ownership Limit. In addition, the Excluded Holder shall promptly notify the
Corporation upon any transfer of Equity Stock.
3. Waiver of the Ownership Limit. The Board of Directors, upon
receipt of a ruling from the Internal Revenue Service or an opinion of counsel
or other evidence or undertak ings acceptable to it, may, in its sole
discretion, waive the application of the Ownership Limit to a Person subject to
such limit, provided that (A) the Board of Directors obtains such
representations and undertakings from such Person as are reasonably necessary to
ascertain that such Person's Beneficial Ownership or Constructive Ownership of
shares of Equity Stock will now and in the future (i) not result in the
Corporation being "closely held" within the meaning of Section 856(h) of the
Code, (ii) not result in the shares of Equity Stock of the Corporation being
Beneficially Owned by fewer than 100 persons within the meaning of Section
856(a)(5) of the Code, (iii) not result in the Corporation failing to qualify as
a "domestically controlled REIT" within the meaning of Section 897(h)(4)(B) of
the Code and (iv) will not otherwise result in the Corporation failing to
qualify as a REIT, and (B) such Person agrees in writing that any violation or
attempted violation of any other limitations, restrictions and conditions that
the Board of Directors may in its sole discretion impose at the time of such
waiver with respect to such Person will result, as of the time of such violation
even if discovered after such violation, in the conversion of such shares in
excess of the original limit applicable to such Person into shares of Excess
Stock pursuant to section F.1 of this Article FOURTH.
4. Settlement. Notwithstanding any provision contained herein to
the contrary, nothing in this Certificate of Incorporation shall preclude the
settlement of any transac tion entered into through the facilities of the New
York Stock Exchange or any other national securities exchange or the NASDAQ
Stock Market, Inc. or any other automated quotation system. In no event shall
the existence or application of the preceding sentence have the effect of
deterring or preventing the conversion of Equity Stock into Excess Stock as
contemplated herein.
E. Excess Stock
5. (a) Transfers in Excess of Ownership Limit. If,
notwithstanding the other provisions contained in this Article FOURTH, there is
a purported Transfer or Non-Transfer Event (as hereinafter defined) such that
any Person would Beneficially Own shares of Equity Stock in excess of the
Ownership Limit, then, (i) except as otherwise provided in section E.3 of this
Article FOURTH, the Purported Record Transferee (as hereinafter defined) (and
the Purported Beneficial Transferee (as hereinafter defined), if different)
shall acquire no right or interest (or, in the case of a Non-Transfer Event, the
Person holding record title to the shares of Equity Stock Beneficially Owned by
such Beneficial Owner shall cease to own any right or interest) in such number
of shares of Equity Stock which would cause such Beneficial Owner to
Beneficially Own shares of Equity Stock in excess of the Ownership Limit, (ii)
such number of shares (rounded up to the nearest whole share) of Equity Stock in
excess of the Ownership Limit shall be automatically converted into an equal
number of shares of Excess Stock and transferred to a Trust (as hereinafter
defined) in accordance with section F.4 of this Article FOURTH and (iii) such
Purported Record Transferee (and such Purported Beneficial Transferee, if
different) or, in the case of a Non-Transfer Event, the Person who, immediately
prior to such automatic conver sion, was the holder of record title to the
shares of Equity Stock automatically converted, shall submit the certificates
representing such number of shares of Equity Stock to the Corporation,
accompanied by all requisite and duly executed assignments
12
<PAGE> 8
of Transfer thereof, for registration in the name of the Trustee (as hereinafter
defined) of the Trust. Such conversion into Excess Stock and Transfer to a Trust
shall be effective as of the close of trading on the Trading Day (as hereinafter
defined) prior to the date of the purported Transfer or Non-Transfer Event, as
the case may be, even though the certificates representing the shares of Equity
Stock so converted may be submitted to the Corporation at a later date.
(1) Other Prohibited Transfers. If, notwithstanding the
other provisions contained in this Article FOURTH, there is a purported Transfer
or Non-Transfer Event that, if effective, would (i) result in the Corporation
being "closely held" within the meaning of Section 856(h) of the Code, (ii)
result in the shares of Equity Stock being beneficially owned by fewer than 100
persons within the meaning of Section 856(a)(5) of the Code, (iii) result in the
Corpora tion failing to qualify as a "domestically controlled REIT" within the
meaning of Section 897(h)(4)(B) of the Code, or (iv) otherwise cause the
Corporation to fail to qualify as a REIT, then (x) the Purported Record
Transferee (and the Purported Beneficial Transferee, if different) shall acquire
no right or interest, and, in the case of a Non-Transfer Event, the Person
holding record title to the shares of Equity Stock Beneficially Owned by the
Person whose Beneficial Ownership of Equity Stock would result in any of the
events referred to in clauses (i) - (v) above shall cease to own any right or
interest, in such number of shares of Equity Stock the ownership of which would
(A) result in the Corporation being "closely held" within the meaning of Section
856(h) of the Code, (B) result in the shares of Equity Stock being beneficially
owned by fewer than 100 persons within the meaning of Section 856(a)(5) of the
Code, (C) result in the Corpora tion failing to qualify as a "domestically
controlled REIT" within the meaning of Section 897(h)(4)(B) of the Code, or (D)
otherwise cause the Corporation to fail to qualify as a REIT, (y) such number of
shares of Equity Stock (rounded up to the nearest whole share) shall be automati
cally converted into an equal number of shares of Excess Stock and transferred
to a Trust in accordance with section F.4 of this Article FOURTH and (z) the
Purported Record Transferee (and the Purported Beneficial Transferee, if
different) or, in the case of a Non-Transfer Event, the Person who, immediately
prior to such automatic conversion, was the holder of record title to the shares
of Equity Stock automatically converted, shall submit such number of shares of
Equity Stock to the Corporation, accompanied by all requisite and duly executed
assignments of Transfer thereof, for registration in the name of the Trustee of
the Trust. Such conversion into Excess Stock and Transfer to a Trust shall be
effective as of the close of trading on the Trading Day prior to the date of the
purported Transfer or Non-Transfer Event, as the case may be, even though the
certificates representing the shares of Equity Stock so converted may be
submitted to the Corporation at a later date.
(2) Conversion to Excess Stock. Upon the occurrence of
such a conversion of shares of Equity Stock into an equal number of shares of
Excess Stock, such shares of Equity Stock shall be automatically retired and
canceled, without any action required by the Board of Directors of the
Corporation, and shall thereupon be restored to the status of authorized but
unissued shares of the particular class or series of Equity Stock from which
such Excess Stock was converted and may be reissued by the Corporation as that
particular class or series of Equity Stock.
6. Remedies for Breach. If the Corporation, or its designees,
shall at any time determine in good faith that a Transfer has taken place in
violation of section E.1 of this Article FOURTH or that a Person intends to
acquire or has attempted to acquire Beneficial Ownership or Constructive
Ownership of any shares of Equity Stock in violation of section E.1 of this
Article FOURTH, the Corporation shall take such action as it deems advisable to
refuse
13
<PAGE> 9
to give effect to or to prevent such Transfer or acquisition, including, but not
limited to, refusing to give effect to such Transfer on the stock transfer books
of the Corporation or instituting proceedings to enjoin such Transfer or
acquisition, but the failure to take any such action shall not affect the
automatic conversion of shares of Equity Stock into Excess Stock and their
Transfer to a Trust in accordance with section F.4.
7. Notice of Restricted Transfer. Any Person who acquires or
attempts to acquire shares of Equity Stock in violation of section E.1 of this
Article FOURTH, or any Person who owns shares of Equity Stock that were
converted into shares of Excess Stock and transferred to a Trust pursuant to
section F.4 of this Article FOURTH, shall immediately give written notice to the
Corporation of such event and shall provide to the Corporation such other
information as the Corporation may request in order to determine the effect, if
any, of such Transfer or Non-Transfer Event, as the case may be, on the
Corporation's status as a REIT.
8. Transfer in Trust. Upon any purported Transfer or
Non-Transfer Event that results in Excess Stock pursuant to section F.1 of this
Article FOURTH, (i) the Corporation shall create, or cause to be created, a
Trust, and shall designate a Trustee and name a Beneficiary (as hereinafter
defined) thereof and (ii) such Excess Stock shall be automatically transferred
to such Trust to be held for the exclusive benefit of the Beneficiary. Any
conversion of shares of Equity Stock into shares of Excess Stock and transfer to
a Trust shall be effective as of the close of trading on the Trading Day prior
to the date of the purported Transfer or Non-Transfer Event that results in the
conversion. Shares of Excess Stock so held in trust shall be issued and
outstanding shares of stock of the Corporation.
9. Dividend Rights. Each share of Excess Stock shall be
entitled to the same dividends and distributions (as to both timing and amount)
as may be declared by the Board of Directors of the Corporation with respect to
each share of Equity Stock which was converted into such Excess Stock. The
Trustee, as record holder of the shares of Excess Stock, shall be entitled to
receive all dividends and distributions and shall hold all such dividends or
distributions in trust for the benefit of the Beneficiary. The Prohibited Owner
(as hereinafter defined) with respect to such shares of Excess Stock shall repay
to the Trust the amount of any dividends or distributions received by it (i)
that are attributable to any shares of Equity Stock that have been converted
into shares of Excess Stock and (ii) the record date of which was on or after
the date that such shares were converted into shares of Excess Stock. The
Corporation shall take all measures that it determines are reasonably necessary
to recover the amount of any such dividend or distribution paid to a Prohibited
Owner, including, if necessary, withholding any portion of future dividends or
distributions payable on shares of Equity Stock Beneficially Owned by the Person
who, but for the provisions of this Article FOURTH, would Constructively Own or
Beneficially Own the shares of Equity Stock that were converted into shares of
Excess Stock; and, as soon as reason ably practicable following the
Corporation's receipt or withholding thereof, shall pay over to the Trust for
the benefit of the Beneficiary the dividends so received or withheld, as the
case may be.
10. Liquidation of the Corporation. In the event of any
voluntary or involun tary liquidation of, or winding up of, or any distribution
of the assets of, the Corporation, each holder of shares of Excess Stock shall
be entitled to receive, ratably with each other holder of shares of the same
class and series of Equity Stock which was converted into such Excess Stock,
that portion of the assets of the Corporation that is available for distribution
to the holders of the same class and series of Equity Stock which was converted
into such Excess Stock. The Trust shall distribute to the Prohibited Owner the
amounts
14
<PAGE> 10
received upon such liquidation, dissolution, or winding up, or distribution;
provided, however, that the Prohibited Owner shall not be entitled to receive
amounts in excess of, in the case of a purported Transfer in which the
Prohibited Owner gave value for shares of Equity Stock and which Transfer
resulted in the conversion of such shares of Equity Stock into shares of Excess
Stock, the product of (x) the price per share, if any, such Prohibited Owner
paid for the shares of Equity Stock and (y) the number of shares of Equity Stock
which were so converted into Excess Stock, and, in the case of a Non-Transfer
Event or purported Transfer in which the Prohibited Owner did not give value for
such shares (e.g., if the shares were received through a gift or devise) and
which Non-Transfer Event or purported Transfer, as the case may be, resulted in
the conversion of the shares into shares of Excess Stock, the product of (x) the
price per share equal to the Market Price (as hereinafter defined) on the date
of such Non-Transfer Event or purported Transfer and (y) the number of shares of
Equity Stock which were so converted into Excess Stock. Any remaining amount in
such Trust shall be distributed to the Beneficiary.
11. Voting Rights. Each share of Excess Stock shall
entitle the holder to no voting rights other than those voting rights which
accompany a class of capital stock under Delaware law. The Trustee, as record
holder of the Excess Stock, shall be entitled to vote all shares of Excess
Stock. Any vote by a Prohibited Owner as a purported holder of shares of Equity
Stock prior to the discovery by the Corporation that such shares of Equity Stock
have been converted into shares of Excess Stock shall, subject to applicable
law, be rescinded and shall be void ab initio with respect to such shares of
Excess Stock.
12. Restrictions on Transfer. (a) As soon as practicable
after the Trustee acquires Excess Stock and complies with the last sentence of
this Section 8(a), but in an orderly fashion so as not to materially adversely
affect the trading price of the same class and series of Equity Stock from which
such Excess Stock was converted, the Trustee shall designate one or more Persons
as Permitted Transferees (as hereinafter defined) and sell to such Permitted
Transferees any shares of Excess Stock held by the Trustee; provided, however,
that (i) any Permitted Transferee so designated purchases for valuable
consideration (whether in a public or private sale) the shares of Excess Stock
and (ii) any Permitted Transferee so designated may acquire the shares of the
same class and series of Equity Stock from which such Excess Stock was converted
without violating any of the restrictions set forth in section E.1 of this
Article FOURTH and without such acquisition resulting in the conversion of such
shares of Equity Stock into shares of Excess Stock and the Transfer of such
shares to a Trust pursuant to sections F.1 and F.4 of this Article FOURTH. The
Trustee shall have the exclusive and absolute right to designate Permitted
Transferees of any and all shares of Excess Stock. Prior to any Transfer by the
Trustee of shares of Excess Stock to a Permitted Transferee, the Trustee shall
give not less than five Trading Days prior written notice to the Corporation of
such intended Transfer and the Corporation must have waived in writing its
purchase rights under section F.10 of this Article FOURTH if such intended
Transfer would occur during the 90-day period referred to therein.
(1) Upon the designation by the Trustee of a
Permitted Transferee in accordance with the provisions of this section F.8, the
Trustee shall cause to be Transferred to the Permitted Transferee shares of
Excess Stock acquired by the Trustee pursuant to section F.4 of this Article
FOURTH. Upon such Transfer of shares of Excess Stock to the Permitted
Transferee, such shares of Excess Stock shall be automatically converted into an
equal number of shares of Equity Stock of the same class and series from which
such Excess Stock was converted. Upon the occurrence of such a conversion of
shares of Excess Stock into an equal
15
<PAGE> 11
number of shares of Equity Stock, such shares of Excess Stock shall be
automatically retired and canceled, without any action required by the Board of
Directors of the Corporation, and shall thereupon be restored to the status of
authorized but unissued shares of Excess Stock and may be reissued by the
Corporation as Excess Stock. The Trustee shall (i) cause to be recorded on the
stock transfer books of the Corporation that the Permitted Transferee is the
holder of record of such number of shares of Equity Stock, and (ii) distribute
to the Beneficiary any and all amounts held with respect to such shares of
Excess Stock after making payment to the Prohibited Owner pursuant to section
F.9 of this Article FOURTH.
(2) If the Transfer of shares of Excess Stock to
a purported Permitted Transferee would or does violate any of the transfer
restrictions set forth in Section E.1 of this Article FOURTH, such Transfer
shall be void ab initio as to that number of shares of Excess Stock that cause
the violation of any such restriction when such shares are converted into shares
of Equity Stock (as described in section 8(b) above) and the purported Permitted
Transferee shall be deemed to be a Prohibited Owner and shall acquire no rights
in such shares of Excess Stock or Equity Stock. Such shares of Equity Stock
shall be automatically converted into Excess Stock and transferred to the Trust
from which they were originally Transferred. Such conversion and transfer to the
Trust shall be effective as of the close of trading on the Trading Day prior to
the date of the Transfer to the purported Permitted Transferee and the
provisions of this Article FOURTH shall apply to such shares, including, without
limitation, the provisions of sections F.8 through F.10 with respect to any
future transfer of such shares by the Trust.
13. Any Prohibited Owner shall be entitled (following
acquisition of the shares of Excess Stock and subsequent designation of and sale
of Excess Stock to a Permitted Transferee in accordance with section F.8 of this
Article FOURTH or following the acceptance of the offer to purchase such shares
in accordance with section F.10 of this Article FOURTH) to receive from the
Trustee following the sale or other disposition of such shares of Excess Stock
the lesser of (a)(i) in the case of a purported Transfer in which the Prohibited
Owner gave value for shares of Equity Stock and which Transfer resulted in the
conversion of such shares into shares of Excess Stock, the product of (x) the
price per share, if any, such Prohibited Owner paid for the shares of Equity
Stock and (y) the number of shares of Equity Stock which were so converted into
Excess Stock and (ii) in the case of a Non-Transfer Event or purported Transfer
in which the Prohibited Owner did not give value for such shares (e.g., if the
shares were received through a gift or devise) and which Non-Transfer Event or
purported Transfer, as the case may be, resulted in the conversion of such
shares into shares of Excess Stock, the product of (x) the price per share equal
to the Market Price on the date of such Non-Transfer Event or purported Transfer
and (y) the number of shares of Equity Stock which were so converted into Excess
Stock or (b) the proceeds received by the Trustee from the sale or other
disposition of such shares of Excess Stock in accordance with section F.8 or
section F.10 of this Article FOURTH. Any amounts received by the Trustee in
respect of such shares of Excess Stock which are in excess of such amounts to be
paid to the Prohibited Owner pursuant to this section F.9 shall be distributed
to the Beneficiary in accordance with the provisions of section F.8 of this
Article FOURTH. The Trustee and the Trust shall not be liable for, and each
Beneficiary and Prohibited Owner shall be deemed to have irrevocably waived, any
claim by a Beneficiary or Prohibited Owner arising out of the disposition of
shares of Excess Stock, except for claims arising out of the gross negligence or
willful misconduct of, or any failure to make payments in accordance with this
section F of this Article FOURTH by, such Trustee.
16
<PAGE> 12
14. Purchase Right in Stock Transferred to Trustee.
Shares of Excess Stock shall be deemed to have been offered for sale to the
Corporation, or its designee, at a price per share equal to the lesser of (a)
the price per share in the transaction that created such shares of Excess Stock
(or, in the case of a Non-Transfer Event or Transfer in which the Prohibited
Owner did not give value for the shares (e.g., if the shares were received
through a gift or devise), the Market Price on the date of such Non Transfer
Event or Transfer in which the Prohibited Owner did not give value for the
shares) or (b) the Market Price on the date the Corporation, or its designee,
accepts such offer. The Corporation shall have the right to accept such offer
for a period of 90 days following the later of (x) the date of the Non-Transfer
Event or purported Transfer which results in such shares of Excess Stock or (y)
the date the Board of Directors of the Corporation first determined that a
Transfer or Non-Transfer Event resulting in shares of Excess Stock has occurred,
if the Corporation does not receive a notice of such Transfer or Non-Transfer
Event pursuant to section F.3 of this Article FOURTH.
3. Remedies Not Limited. Except as set forth in section E.4 of this
Article FOURTH, nothing contained in this Article FOURTH shall
limit the authority of the Corporation to take such other action
as it deems necessary or advisable to protect the Corporation
and the interests of its stockholders by preservation of the
Corporation's status as a REIT and to ensure compliance with the
Ownership Limit.
4. Ambiguity. In the case of an ambiguity in the application of any
of the provisions of this Article FOURTH, including any
definition contained in Article ELEVENTH hereof, the Board of
Directors shall have the power to determine the application of
the provisions of this Article FOURTH with respect to any
situation based on the facts known to it and any such
determination made in good faith shall be binding on all
stockholders of the Corporation.
5. Legend. Each certificate for shares of Equity Stock shall bear
the following legend:
"The shares of Plum Creek Timber Company, Inc. (the
"Corporation") represented by this certificate are subject to
restrictions set forth in the Corporation's Certificate of
Incorporation which prohibit in general (a) any Person from
Beneficially Owning shares of Equity Stock in excess of the
Ownership Limit and (b) any Person from acquiring or maintaining
any ownership interest in the capital stock of the Corporation
that is inconsistent with (i) the requirements of the Code
pertaining to real estate investment trusts or (ii) the
Certificate of Incorporation of the Corpo ration, and the holder
of this certificate by his acceptance hereof consents to be
bound by such restrictions. Any purported transfer of Equity
Stock in violation of such restrictions shall be void ab initio
and the Equity Stock in violation of such restrictions, whether
as a result of a Transfer or the Non- Transfer Event, shall be
automatically converted into shares of Excess Stock and
transferred to a Trust for disposition as provided in the
Certificate of Incorporation. Capitalized terms used in this
paragraph and not defined herein are defined in the
Corporation's Certificate of Incorporation. The Corporation will
furnish without charge, to each stockholder who so requests, a
copy of the Certificate of Incorporation of the Corporation,
containing, among other things, a statement of the powers,
designations, preferences and relative, participating, optional
or other special
17
<PAGE> 13
rights of each class of stock or series thereof that the
Corporation is authorized to issue and the qualifica tions,
limitations or restrictions of such preferences and/or rights.
Any such request shall be addressed to the Secretary of the
Corporation.
F. Each provision of this Article FOURTH shall be severable and any
such provision determined to be invalid by a court having
jurisdiction shall in no way affect the validity of any other
provision.
5. FIFTH: A. At all times subsequent to the date of filing of this
Certificate of Incorporation with the Secretary of State for the State
of Delaware, the directors shall be classified, with respect to the term
for which they severally hold office, into three classes, designated
"Class I," "Class II" and "Class III," respectively. The initial Class I
Directors shall serve for a term expiring at the first annual meeting of
stockholders; the initial Class II Directors shall serve for a term
expiring at the second annual meeting of stockholders; and the initial
Class III Directors shall serve for a term expiring at the third annual
meeting of stockhold ers. At each annual meeting of stockholders, the
successor or successors of the class of directors whose term expires at
that meeting shall be elected by a plurality of the votes of the shares
present in person or represented by proxy at such meeting and entitled
to vote on the election of directors, and shall hold office for a term
expiring at the annual meeting of stockholders held in the third year
following the year of their election. The directors elected to each
class shall hold office until their successors are duly elected and
qualified or until their earlier resignation or removal. The Board of
Directors shall have the author ity, upon the approval and at the
direction of a majority of its members, to designate a Nominating
Committee and one or more committees, each committee to consist of one
or more of the directors of the Corporation as selected by a majority of
the members of the Board of Directors. To the extent permitted by law
and provided in the resolution authorizing such committee, any such
committee shall have and may exercise all the powers and authority of
the Board of Directors in the management of the business and affairs of
the Corporation.
Notwithstanding the foregoing, whenever, pursuant to the provisions of
Article FOURTH of this Certificate, the holders of any one or more series of
Preferred Stock shall have the right, voting separately as a series or together
with holders of other such series, to elect directors at an annual or special
meeting of stockholders, the election, term of office, filling of vacancies and
other features of such directorships shall be governed by the terms of this
Certificate of Incorpora tion, including any Preferred Stock Designation
applicable thereto.
During any period when the holders of any series of Preferred Stock have
the right to elect additional directors as provided for or fixed
pursuant to the provisions of Article FOURTH of this Certificate of
Incorporation, then upon commencement and for the duration of the period
during which such right continues: (a) the then otherwise total
authorized number of directors of the Corporation shall automatically be
increased by such specified number of directors, and the holders of such
Preferred Stock shall be entitled to elect the additional directors so
provided for or fixed pursuant to said provisions and (b) each such
additional director shall serve until such director's successor shall
have been duly elected and qualified, or until such director's right to
hold such office terminates pursuant to said provisions, whichever
occurs earlier, subject to such
18
<PAGE> 14
director's earlier death, disqualification, resignation or removal.
Except as otherwise provided by the Board of Directors in the resolution
or resolutions establishing such series, whenever the holders of any
series of Preferred Stock having such right to elect additional
directors are divested of such right pursuant to the provisions of such
stock, the terms of office of all such additional directors elected by
the holders of such stock, or elected to fill any vacancies resulting
from the death, resignation, disqualification or removal of such
additional directors, shall forthwith terminate and the total authorized
number of directors of the Corporation shall be reduced accordingly.
B. Subject to the rights, if any, of the holders of any series of Preferred
Stock to elect directors and to remove any director whom such holders
have the right to elect, any director (including persons elected by
directors to fill vacancies in the Board of Directors) may be removed
from office (a) only with cause and (b) only by the affirmative vote of
the holders of at least 66 2/3% of the total voting power of the shares
of capital stock of the Corporation then entitled to vote at a meeting
of the stockholders called for that purpose. At least 30 days prior to
any meeting of stockholders at which it is proposed that any director be
removed from office, written notice of such proposed removal shall be
sent to the director whose removal will be considered at the meeting.
For purposes of this Certificate of Incorporation, "cause," with respect
to the removal of any director, shall mean only (i) conviction of a
felony, (ii) declaration of unsound mind by order of a court, (iii)
gross dereliction of duty, (iv) commission of any act involving moral
turpitude or (v) commission of an act that constitutes intentional
misconduct or a knowing violation of law if such action in either event
results both in an improper substantial personal benefit to such
director and a material injury to the Corporation.
1. Subject to the rights, if any, of the holders of any series of Preferred
Stock to elect directors and to fill vacancies in the Board of Directors
relating thereto, any and all vacancies in the Board of Directors,
however occurring, including, without limitation, through death,
resignation, removal, an increase in the number of directors or
otherwise may be filled only by a majority of the directors then in
office, though less than a quorum, or by a sole remaining director, and
the directors so chosen shall hold office until the end of the term of
the class to which they are appointed and until their successors are
duly elected and qualified, or until their earlier death, resignation or
removal. Any director appointed in accordance with the preceding
sentence shall hold office for the remainder of the full term of the
class of directors in which such director was appointed or until such
director's earlier resignation or removal. If such director was
designated by the Principals, pursuant to the Conversion Agreement or
such increase in the number of directors would result in the Principals
no longer having designated a majority of the Board of Directors at a
time when the Principals are entitled under the Conversion Agreement to
designate a majority of the Board of Directors, such vacancy shall be
filled by a designee of the Principals. Subject to the rights, if any,
of the holders of any series of Preferred Stock, when the number of
directors is increased or decreased, the Board of Directors shall
determine the class or classes to which the increased or decreased
number of directors shall be apportioned; provided, however, that no
decrease in the number of directors shall shorten the term of any
incumbent director. In the event of a vacancy in the Board of Directors,
the
19
<PAGE> 15
remaining directors, except as otherwise provided by law, may exercise
the powers of the full Board of Directors until such vacancy is filled.
6. SIXTH: Any action required to be taken at any annual or special meeting
of stockholders of the Corporation, or any action which may be taken at
any annual or special meeting of the stockholders, may be taken only at
a duly called annual or special meeting of stock holders and may not be
taken by written consent of the stockholders in lieu of such meeting.
7. SEVENTH: The Board of Directors is expressly authorized to make, amend
or repeal the bylaws of the Corporation, without any action on the part
of the stockholders, solely by the affirmative vote of at least 662/3%
of the directors of the Corporation then in office. In addition to any
other vote required by law, the bylaws may be amended or repealed by the
stockholders by the affirmative vote of the holders of shares
representing at least 662/3% of the combined voting power of the
outstanding shares of capital stock of the corporation entitled to vote.
8. EIGHTH: No director of the Corporation shall be liable to the
Corporation or its stock holders for monetary damages for breach of
fiduciary duty as a director, except for liability (i) for any breach of
the director's duty of loyalty to the Corporation or its stockholders,
(ii) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (iii) under
Section 174 of the GCL, or (iv) for any transaction from which the
director derived an improper personal benefit.
If the GCL hereafter is amended to further eliminate or limit the
liability of directors, then the liability of a director of the Corporation, in
addition to the limitation on personal liability provided herein, shall be
limited to the fullest extent permitted by the amended GCL. Any repeal or
modification of this Article EIGHTH by the stockholders of the Corporation shall
be prospective only, and shall not adversely affect any limitation on the
liability of a director of the Corporation existing at the time of such repeal
or modification.
9. NINTH. The Corporation shall seek to satisfy the requirements for
qualification as a REIT under the Code until such time as the Board of
Directors shall determine otherwise, such determination being approved
by the affirmative vote of at least 66 2/3% of the directors of the
Corporation then in office.
10. TENTH. In addition to any other vote required by law, the amendment or
repeal of, or adoption of any provisions inconsistent with, Articles
FIFTH, SIXTH, SEVENTH, EIGHTH, NINTH or this Article TENTH or any term
defined in Article ELEVENTH to the extent such term is used in any such
Article shall require the approval of the holders of at least 66 2/3% of
the total voting power of the shares of capital stock entitled to vote
thereon, voting as a single class.
11. ELEVENTH. For purposes of this Certificate of Incorporation, the
following terms shall have the meanings set forth below:
"Affiliate" shall mean, with respect to any Person or Persons, (i) any
natural person who is related by blood or marriage to any such Person, (ii) any
trust of which there are no principal beneficiaries other than any such Person
or Permitted Transferees of such Person,
20
<PAGE> 16
(iii) any charitable foundation over which any such Person has
discretionary authority, (iv) any heirs or executors of any such Person
and (v) if such Person is either of the PCMC Partners, any entity of
which a majority of the total outstanding voting equity or a majority of
the value of the outstand ing ownership interests is owned by the PCMC
Partners.
"Beneficial Ownership," shall be calculated as follows:
(1) when used in Section C of Article FOURTH or any defined term
used therein, shares of Common Equity received by the PCMC Partners
pursuant to the terms of the Conversion Agreement shall be deemed to be
100% Beneficially Owned by the Principals so long as (i) the PCMC
Partners shall maintain their, respective, Beneficial Ownership of such
securities and the Princi pals and their Permitted Transferees maintain
their collective voting and dispositive power with respect to such
securities or (ii) if such securities are distributed by the PCMC
Partners, the Principals and their Permitted Transferees Beneficially
Own and maintain substantially all of their collective opportunity for
gain and risk of loss with respect to such securities; provided however,
that for purposes of subsection (i) above, in the event that the
Principals Transfer voting interests or the opportunity for gain and
risk of loss in the PCMC Partners, other than Transfers of voting
interests and the opportunity for gain and risk of loss to any Person
that holds an ownership interest in the PCMC Partners as of the Closing
Date (as defined in the Conversion Agreement), such 100% deemed
Beneficial Ownership by the Principals shall be reduced by such
Transferred amount, and provided further, that if the PCMC Partners
Transfer any such securities to a Person in which it owns a majority of
the voting power and economic value, the PCMC Partners will be deemed to
Beneficially Own that same percentage of the total number of shares of
Common Equity held by such Person;
(2) when used in sections E and F of Article FOURTH or in any
defined term used therein, shall mean ownership of Equity Stock by a
Person who would be treated as an owner of Equity Stock either directly
or indirectly under Section 542(a)(2) of the Code, taking into account,
for this purpose, constructive ownership determined under Section 544 of
the Code, as modified by Section 856(h) of the Code (except where
expressly provided other wise); and
(3) when used elsewhere in this Certificate of Incorpora tion,
shall mean beneficial ownership determined under Rule 13d-3 under the
Exchange Act (as hereinafter defined).
The terms "Beneficial Owner," "Beneficially Owns" and "Beneficially
Owned" shall have the correlative meanings.
"Beneficiary" shall mean, with respect to any Trust, one or more
organizations described in each of Section 170(b)(1)(A) (other than clauses
(vii) and (viii) thereof) and Section 170(c)(2) of the Code that are named by
the Corporation as the beneficiary or beneficiaries of such Trust, in accordance
with the provisions of section F.4 of Article FOURTH.
21
<PAGE> 17
"Change in Law" shall mean any change in the Code or the regulations
promulgated thereunder that would require a reduction in the number of votes
represented by the Special Voting Stock in order to maintain the Corporation's
status as a REIT.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Constructive Ownership" shall mean ownership of shares of Equity Stock
by a Person who is or would be treated as a direct or indirect owner of such
shares of Equity Stock through the application of Section 318 of the Code. The
terms "Constructive Owner," "Constructively Owns" and "Constructively Owned"
shall have correlative meanings.
"Conversion Agreement" shall mean the Agreement and Plan of Conversion,
dated as of June 5, 1998, by and among Plum Creek Timber Company, L.P., the
Corporation and PCMC, as amended by the Amended and Restated Agreement and Plan
of Conversion, dated as of July 17, 1998.
"Equity Stock" shall mean the Common Stock, the Special Voting Stock and
the Preferred Stock of the Corporation.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended.
"Excluded Holder" shall mean Mr. John H. Scully, Mr. William J.
Patterson and Mr. William E. Oberndorf and their respective Affiliates,
collectively.
"Extraordinary Transaction" shall mean any transaction (i) which
requires the vote of all stockholders of the Corporation (other than the
election of directors) under the GCL, (ii) which requires stockholder approval
pursuant to Rule 312.03(c) or (d) of the New York Stock Exchange Listed Company
manual (or the equivalent rule, if any, of any stock exchange or automated
quotation system on which the Corporation may be listed), or (iii) pursuant to
which an amend ment to the bylaws of the Corporation would be effected by vote
of its stockholders.
"Market Price" of Equity Stock on any date shall mean the average of the
closing price for shares of such Equity Stock for the five consecutive Trading
Days ending on the Trading Day immediately prior to such date. The "Closing
Price" on any date shall mean the last sale price, regular way, or, in case no
such sale takes place on such day, the average of the closing bid and asked
prices, regular way, in either case as reported in the principal consolidated
transactions reporting system with respect to securities listed or admitted to
trading on the New York Stock Exchange or, if the shares of Equity Stock are not
listed or admitted to trading on the New York Stock Exchange, as reported in the
principal consolidated transaction reporting system with respect to securities
listed on the principal national securities exchange on which the shares of
Equity Stock are listed or admitted to trading or, if the shares of Equity Stock
are not listed on admitted to trading on any national securities exchange, the
last quoted price, or if not so quoted, the average of the high bid and low
asked prices in the over-the-counter market, as reported by the Nasdaq Stock
Market, Inc. or, if such system is no longer in use, the principal other
automated quotation system that may be in use or, if the shares of Equity Stock
are not quoted by any such organization, the average of the closing bid and
asked prices as furnished by a professional market maker selected by the Board
of Directors making a market in the shares of Equity Stock.
22
<PAGE> 18
"Non-Transfer Event" shall mean an event other than a purported Transfer
that would cause or result in an increase in the percentage of any Person's
Beneficial Ownership of the outstanding shares of Equity Stock.
"Ownership Limit" shall mean (i) with respect to Persons other than the
Excluded Holder (a) with respect to the Common Equity, 5% of the lesser of (1)
the total number of shares of Common Stock outstanding (assuming all shares of
Special Voting Stock have been converted into Common Stock), or (2) the value of
the outstanding shares of Common Stock (assuming all shares of Special Voting
Stock have been converted into Common Stock), or (b) with respect to Preferred
Stock, 5% of the lesser of (1) the total number of shares of Preferred Stock
outstanding, or (2) the value of the outstanding shares of Preferred Stock (or
such other number or value of Preferred Stock as the Board of Directors may
determine in fixing the terms of the Preferred Stock); and (ii) with respect to
the Excluded Holder, the Ownership Limit shall be the lesser of 27% of the
outstanding Common Stock and the lowest percentage of the outstanding Common
Stock either Beneficially Owned or Constructively Owned by the Excluded Holder
at any time (assuming all shares of Special Voting Stock are converted into
Common Stock in accordance with the terms hereof).
"PCMC Partners" shall mean PC Advisory Partners I, L.P., a Delaware
limited partner ship, and PC Intermediate Holdings, L.P., a Delaware limited
partnership.
"Permitted Transferee" shall mean
(4) when used in section C of Article FOURTH or any defined term
used therein, with respect to any Person or Persons, (a) any natural
person who is related by blood or marriage to any such Person, (b) any
trust or partnership of which there are no principal beneficiaries or
partners, as the case maybe, other than any such Person or Permitted
Transferees of such Person, (c) any charitable foundation over which any
such Person has discretionary authority, and (d) any heirs or executors
of any such Person; and
(5) when used elsewhere in this Certificate of Incorpora tion,
any Person designated as a Permitted Transferee in accordance with the
provisions of section F.8 of Article FOURTH.
"Person" shall mean (a) an individual or any corporation, partnership,
estate, trust, association, private foundation, joint stock company or any other
entity and (b) a "group" as the term is used for purposes of Section 13(d)(3) of
the Exchange Act; but shall not include an underwriter that participates in a
public offering of Equity Stock for a period of 90 days following purchase by
such underwriter of such Equity Stock.
"Principals" shall mean Mr. John H. Scully, Mr. William J. Patterson and
Mr. William E. Oberndorf, collectively.
"Prohibited Owner" shall mean, with respect to any purported Transfer or
Non-Transfer Event, any Person who is prevented from becoming or remaining the
owner of record title to shares of Equity Stock by the provisions of section F.1
of Article FOURTH.
23
<PAGE> 19
"Purported Beneficial Transferee" shall mean, with respect to any
purported Transfer of Beneficial Ownership of shares of Equity Stock that
results in the automatic conversion of such shares into Excess Stock, the
purported transferee of Beneficial Ownership of such shares if such purported
Transfer had been valid under Section E.1 of Article FOURTH.
"Purported Record Transferee" shall mean, with respect to any purported
Transfer of Beneficial Ownership of shares of Equity Stock that results in the
automatic conversion of such shares into Excess Stock, the purported record
transferee of such shares if such purported Transfer had been valid under
Section E.1 of Article FOURTH.
"REIT" shall mean a real estate investment trust under Section 856 et
seq. of the Code.
"Subsidiary" shall mean any Person in which the Corporation beneficially
owns, directly or indirectly, more than 50% of the voting power of the
outstanding voting equity securities.
"Trading Day" shall mean a day on which the principal national
securities exchange on which any of the shares of Equity Stock are listed or
admitted to trading is open for the transaction of business or, if none of the
shares of Equity Stock are listed or admitted to trading on any national
securities exchange, any day other than a Saturday, a Sunday or a day on which
banking institutions in the State of New York are authorized or obligated by law
or executive order to close.
"Transfer" (as a noun) shall mean any sale, transfer, gift, assignment,
devise or other disposition of Beneficial Ownership of Equity Stock, whether
voluntary or involuntary and whether by operation of law or otherwise.
"Transfer" (as a verb) shall have the correlative meaning.
"Trust" shall mean any separate trust created and administered in
accordance with the terms of section F of Article FOURTH, for the exclusive
benefit of any Beneficiary.
"Trustee" shall mean any Person, unaffiliated with both the Corporation
and any Prohibited Owner (and, if different than the Prohibited Owner, the
Person who would have had Beneficial Ownership of the Shares that would have
been owned of record by the Prohibited Owner), designated by the Corporation to
act as trustee of any Trust, or any successor trustee thereof.
24
<PAGE> 1
EXHIBIT 99.1
[PLUM CREEK LETTERHEAD]
Contact: Michelle D. Monfor
Director, Investor Relations
(206) 467-3613 or 1-800-858-5347
www.plumcreek.com
-----------------
PLUM CREEK'S REIT CONVERSION BECOMES EFFECTIVE
SEATTLE, WASHINGTON -- July 1, 1999 -- The conversion of Plum Creek Timber
Company, L.P. from a publicly traded master limited partnership (MLP) to a
publicly traded real estate investment trust (REIT) became effective today prior
to the opening of trading. As part of the conversion, each limited partnership
unit previously held in the MLP will be exchanged for one share of common stock
of Plum Creek Timber Company, Inc., the name of the REIT. Plum Creek's stock
will continue to trade on the New York and Pacific Stock Exchanges under the
symbol "PCL".
Plum Creek is one of the largest private timberland owners in the nation
with timberlands and mills located in the Northwest, Southern and Northeastern
United States.
###
