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EXHIBIT 9.1
VOTING AGREEMENT AND CONSENT
VOTING AGREEMENT AND CONSENT (this "Agreement"), dated as of July 18,
2000, by and among Plum Creek Timber Company, Inc., a corporation organized
under the laws of the state of Delaware (the "Company"), Georgia-Pacific
Corporation, a corporation organized under the laws of the state of Georgia
("Georgia-Pacific"), and each other person set forth on the signature pages
hereof (each individually a "Securityholder", and collectively, the
"Securityholders"). Capitalized terms used but not otherwise defined herein
shall have the meanings ascribed to them in the Merger Agreement (as defined
below).
WHEREAS, concurrently with the execution and delivery of this
Agreement, an Agreement and Plan of Merger attached as Exhibit A hereto (the
"Merger Agreement") is being entered into by and among the Company,
Georgia-Pacific and the direct or indirect wholly owned subsidiaries of
Georgia-Pacific party thereto (collectively, the "Spincos"), pursuant to which
each of the Spincos will be merged with and into the Company, with the Company
being the surviving corporation in the merger (the "Merger");
WHEREAS, immediately prior to the Merger, Georgia-Pacific will redeem
all of the outstanding shares of the Triton Common Stock (as defined in the
Merger Agreement) in exchange for all of the outstanding shares of each Spinco
by delivery of one unit consisting of one share of common stock of each Spinco
for each share of Triton Common Stock outstanding;
WHEREAS, as a condition to, and in consideration for the Company's and
Georgia-Pacific's willingness to enter into the Merger Agreement and to
consummate the transactions contemplated thereby, the Company and
Georgia-Pacific have required that the Securityholders enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing, the mutual
representations, warranties, covenants and agreements contained herein and for
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Definitions. For purposes of this Agreement:
(a) "Acquisition Proposal" shall mean any proposal or
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offer to acquire all or a substantial part of the business or properties of the
Company or capital stock of the Company or any proposal or offer that, if
consummated, would cause the transactions contemplated by the Merger Agreement
to fail to qualify as a series of tax-free transactions, whether by merger,
tender offer, exchange offer, sale of assets or similar transactions involving
the Company, or any subsidiary, division or operating or principal business unit
of the Company.
(b) "Affiliate" 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.
(c) "Beneficially Own" or "Beneficial ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), including pursuant to any agreement, arrangement
or understanding, whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities Beneficially Owned by a person
shall include securities Beneficially Owned by all other persons with whom such
person would constitute a "group" within the meaning of Section13(d)(3) of the
Exchange Act.
(d) "Changed Board Recommendation" shall mean a majority of the board of
directors of the Company excluding John H. Scully, William J. Patterson and
William E. Oberndorf or any successors designated by the Securityholders
recommend that the stockholders of the Company vote against the Merger.
(e) "Common Stock" shall mean the common stock, par value $.01 per share,
of the Company.
(f) "Securities" shall mean the Common Stock and the Special Voting Stock,
collectively. In the event of any dividend or distribution consisting of either
the Common Stock or Special Voting Stock, or any change in the capital structure
of the Company by reason of any non-cash dividend, split-up, recapitalization,
combination, exchange of securities or the like, the term "Securities" shall
refer to and include the Common Stock and the Special Voting Stock as well as
all such dividends and distributions of securities and any securities into which
or for
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which any or all of the Common Stock and/or Special Voting Stock may be changed
or exchanged.
(g) "Special Voting Stock" shall mean the special voting common stock, par
value $.01 per share, of the Company.
2. Consent.
(a) Each Securityholder hereby irrevocably elects, pursuant to Section
C.6(a) of Article Fourth of the Certificate of Incorporation of the Company, to
convert each share of Special Voting Stock into one share of Common Stock
immediately prior to the Merger. Each Securityholder understands and
acknowledges that such conversion of Special Voting Stock into Common Stock will
permanently and irrevocably extinguish any separate class voting rights of such
Securityholders to approve Extraordinary Transactions (as defined in the
Certificate of Incorporation of the Company) pursuant to Section C.3(c) of
Article Fourth of the Certificate of Incorporation of the Company. Each
Securityholder understands and acknowledges that following the irrevocable
election in this Section 2(a), such Securityholder will have only those rights
of a holder of Common Stock (other than with respect to (i) rights under the
Registration Rights Agreement among the Securityholders and the Company (the
"Registration Rights Agreement") and (ii) rights under Section 2(b) below).
(b) Each Securityholder hereby permanently and irrevocably waives,
simultaneously with the consummation of the Merger, any and all rights to
designate more than three nominees to the board of directors of the Company
under Section 3.5 "Control Rights" of the Amended and Restated Agreement and
Plan of Conversion, dated as of July 17, 1998, by and among the Company, Plum
Creek Timber Company, L.P. and Plum Creek Management Company, L.P. (the
"Conversion Agreement"). Each Securityholder understands and acknowledges that
such waiver of rights under Section 3.5 of the Conversion Agreement will
permanently and irrevocably extinguish any rights of the Securityholders to
designate a majority of the board of directors of the Company under either the
Conversion Agreement or Section C of Article Fifth of the Certificate of
Incorporation of the Company (unless three directors would constitute a majority
of the board of directors).
(c) Each Securityholder hereby affirms that such irrevocable elections
shall survive such Securityholder's death, incapacity or incompetence or the
transfer of any Security.
3. Voting Agreement. Prior to any Changed Board
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Recommendation, each Securityholder shall, at any meeting of the stockholders of
the Company, however such meeting is called and regardless of whether such
meeting is a special or annual meeting of the stockholders of the Company, or in
connection with any written consent of the stockholders of the Company, vote (or
join the written consent) all Securities directly or indirectly Beneficially
Owned by such Securityholder (i) to approve the Merger Agreement, the Merger and
the transactions contemplated thereby, including, without limitation, the
amendments to the Company's Certificate of Incorporation as contemplated by the
Merger Agreement and the taking of any actions necessary or appropriate in
furtherance thereof, (ii) against any Acquisition Proposal, unless they shall
have received the prior written consent of the Company and Georgia-Pacific and
(iii) to approve any proposed amendments to the Company's Certificate of
Incorporation to eliminate the Company's staggered board of directors.
4. No Inconsistent Arrangements. Each Securityholder hereby covenants and
agrees that it shall not (i) transfer (which term shall include without
limitation, any sale, gift, pledge, lien, mortgage, hypothecation or other
disposition), or consent to any transfer of, any or all of such Securityholder's
Securities, or any interest therein, (ii) enter into any contract, option or
other agreement or understanding with respect to any transfer of any or all of
such Securities or any interest therein, (iii) grant any other proxy, power-of-
attorney or other authorization in or with respect to such Securities, (iv)
deposit such Securities into a voting trust or enter into a voting agreement or
arrangement the with respect to such Securities or (v) take any other action
that would in any way restrict, limit or interfere with the performance of such
Securityholders' obligations hereunder or the transactions contemplated hereby
or by the Merger Agreement. Notwithstanding this Section 4, each Securityholder
may sell Securities (A) pursuant to an effective registration statement, Rule
144 or Rule 145 under the Securities Act of 1933, as amended or (B) in any other
transaction subject to the terms of this Voting Agreement and Consent.
5. Grant of Proxy; Appointment of Proxies.
(a) Each Securityholder hereby grants to, and appoints, James F. Kelley
and Ken Khoury, or either of them, in their respective capacities as officers of
Georgia-Pacific, and any individual who shall hereafter succeed to any such
office of Georgia-Pacific, and each of them individually, such Securityholder's
proxy and attorney-in-fact (with full power of substitution and resubstitution),
for and in the name, place and stead of such Securityholder, to vote or give
written consent with respect to all of such Securityholder's Securities (i) in
favor of the Merger Agreement, the Merger and the transactions contemplated by
the Merger Agreement, including, without limitation, the Amendments to the
Company's Certificate of Incorporation as contemplated by the Merger Agreement
and the
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taking of any actions necessary or appropriate in furtherance thereof, and (ii)
against any Acquisition Proposal. The proxy granted hereby is revocable (A) by
each Securityholder in the event of a Changed Board Recommendation and (B) with
respect to those Securities sold pursuant to an effective registration
statement, Rule 144 or Rule 145 under the Securities Act of 1933, as amended.
(b) Each Securityholder represents that any proxies heretofore given in
respect of such Securityholder's Securities are not irrevocable, and that all
such proxies are hereby revoked.
(c) Each Securityholder understands and acknowledges that each of the
Company and Georgia-Pacific is entering into the Merger Agreement in reliance
upon such Securityholder's execution and delivery of this Agreement. Each
Securityholder hereby affirms that the proxy set forth in this Section 5 is
given in connection with the execution of the Merger Agreement, and that such
proxy is given to secure the performance of the duties of such Securityholder
under this Agreement. Each Securityholder hereby affirms that such proxy shall
survive such Securityholder's death, incapacity or incompetence or the transfer
of any Security other than those Securities sold pursuant to an effective
registration statement, Rule 144 or Rule 145 under the Securities Act of 1933,
as amended. Each Securityholder hereby ratifies and confirms all that each such
proxy may lawfully do or cause to be done by virtue hereof.
6. No Solicitation. Each Securityholder hereby agrees, in such
Securityholder's capacity as a stockholder of the Company, that neither such
Securityholder nor any of such Securityholder's Affiliates, subsidiaries,
successors or assigns of all or substantially all of the business of such
Securityholder shall (and such Securityholder shall use such Securityholder's
commercially reasonable efforts to instruct its officers, directors and
employees, if any, and its representatives and agents not to, and to not permit
any of them to), directly or indirectly, encourage, solicit, participate in or
initiate discussions or negotiations with, or provide any information to, any
person (other than Georgia-Pacific, any of its affiliates or representatives)
concerning any Acquisition Proposal.
7. Representations and Warranties of the Securityholders. Each
Securityholder, severally and not jointly, hereby represents and warrants to the
Company as follows:
(a) On the date hereof, such Securityholder is the record and Beneficial
Owner of the number of Securities as set forth opposite such Securityholder's
name on Schedule I of this Agreement. On the date hereof, the Securities
constitute all of the Securities held of record or Beneficially Owned by
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such Securityholder. Each Securityholder has sole voting power and sole power to
issue instructions with respect to the matters set forth in this Agreement, sole
power of disposition, sole power of conversion, and sole power to agree to all
of the matters set forth in this Agreement, in each case with respect to all of
the Securities with no limitations, qualifications or restrictions on such
rights, subject to applicable securities laws and the terms of this Agreement.
(b) Such Securityholder has the legal capacity, requisite limited
partnership power and authority to enter into and perform all of such
Securityholder's obligations under this Agreement. The execution, delivery and
performance of this Agreement by such Securityholder will not violate any other
agreement to which such Securityholder is a party including, without limitation,
the Conversion Agreement, any voting agreement, proxy arrangement, pledge
agreement, security agreement, partnership agreement, shareholders' agreement,
transfer restriction agreement, sale agreement or voting trust. This Agreement
has been duly and validly executed and delivered by such Securityholder and
constitutes a valid and binding agreement of such Securityholder, enforceable
against such Securityholder in accordance with its terms. There is no
beneficiary or holder of a voting trust certificate or other interest of any
trust of which such Securityholder is a trustee whose consent is required for
the execution and delivery of this Agreement or the consummation by such
Securityholder of the transactions contemplated hereby.
8. Stop Transfer. Each Securityholder shall not request that the Company
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of its Securities, unless such transfer
is made in compliance with this Agreement. Each Securityholder understands and
acknowledges that the Company's transfer agent will be instructed not to
transfer such shares, unless such transfer is made in accordance with this
Agreement.
9. Termination. The covenants, agreements and proxy shall terminate upon
the earlier to occur of (i) a Changed Board Recommendation, (ii) the termination
of the Merger Agreement in accordance with Article VIII thereof or (iii) the
consummation of the transactions contemplated by the Merger Agreement.
10. Miscellaneous.
(a) Specific Performance. Each Securityholder recognizes and agrees that
if for any reason any of the provisions of this Agreement are not performed by
such Securityholder in accordance with its specific terms or are otherwise
breached, immediate and irreparable harm or injury would be caused to the
Company for which money damages would not be an adequate remedy. Accordingly,
each Securityholder agrees that, in addition to any other available
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remedies, the Company and Georgia-Pacific shall be entitled to an injunction
restraining any violation or threatened violation of the provisions of this
Agreement without the necessity of the Company or Georgia-Pacific, as the case
may be, posting a bond or other form of security. In the event that any action
should be brought in equity to enforce the provisions of this Agreement, such
Securityholder will not allege, and hereby waives the defense, that there is an
adequate remedy at law.
(b) Severability. Any term or provision of this Agreement which is invalid
or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction.
(c) Attorneys' Fees. If any action at law or equity, including an action
for declaratory relief, is brought to enforce or interpret any provision of this
Agreement, the prevailing party shall be entitled to recover reasonable
attorneys' fees and expenses from the other party, which fees and expenses shall
be in addition to any other relief which may be awarded.
(d) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, REGARDLESS OF THE LAWS THAT
MIGHT OTHERWISE GOVERN UNDER APPLICABLE PRINCIPLES OF CONFLICTS OF LAWS THEREOF.
(e) Entire Agreement. This Agreement together with the Registration Rights
Agreement constitutes the entire agreement among the parties hereto with respect
to the subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, among the parties or any of them with
respect to the subject matter hereof.
(f) Consent to Jurisdiction, Etc. Each of the parties hereto irrevocably
and unconditionally submits to the non-exclusive jurisdiction of the United
States District Court for the District of Delaware or in any Delaware state
court (in law or equity) having subject matter jurisdiction over such matters,
and each of the parties hereto consents and agrees to personal jurisdiction and
waives any objection as to the venue of such courts for purposes of such action.
(g) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt by delivery in person, by facsimile
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(which is confirmed), or by registered or certified mail (postage prepaid,
return receipt requested):
If to a Securityholder, to the address set forth below its name
on Schedule I of this Agreement:
If to the Company, to:
Plum Creek Timber Company, Inc.
999 Third Avenue
Seattle, Washington 98104
Attention: Vice President and 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
If to Georgia-Pacific, to:
Georgia-Pacific Corporation
133 Peachtree Street, N.E.
Atlanta, Georgia 30303
Attention: Vice President and Deputy General Counsel
Facsimile: (404) 230-1611
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
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and to
King & Spalding
191 Peachtree Street
Atlanta, Georgia 30303
Attention: William R. Spalding
Facsimile: (404) 572-5100
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(h) Descriptive Headings; Interpretation. The descriptive headings herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this agreement.
(i) Assignment; Binding Agreement. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and the respective heirs,
legal representatives, estates, executors, successors and permitted assigns of
the parties and such persons. Nothing in this Agreement is intended or shall be
construed to confer upon any entity or person other than the parties hereto and
their respective heirs, legal representatives, estates, executors, successors
and permitted assigns any right, remedy or claim under or by reason of their
Agreement or any part hereof. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any Securityholder
without the prior written consent of the Company or by the Company without the
prior written consent of each Securityholder party hereto.
(j) Amendment, Modification and Waiver. This Agreement may not be amended,
modified or waived except by an instrument or instruments in writing signed and
delivered on behalf of the party hereto against whom such amendment,
modification or waiver is sought to be entered.
(k) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
[signature pages follow]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement 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
PC ADVISORY PARTNERS I, L.P.
By: PC Advisory Corp. I
Its general partner
By: /s/ John H. Scully
---------------------------
Name: John H. Scully
Title: President
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PC INTERMEDIATE HOLDINGS, L.P.
By: PC Advisory Partners I, L.P.
Its general partner
By: PC Advisory Corp. I
Its general partner
By: /s/ John H. Scully
----------------------------
Name: John H. Scully
Title: President
11
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Schedule I
----------
<TABLE>
<CAPTION>
Number of
Number of Shares of
Shares of Special
Common Voting
Securityholder Stock Stock
-------------- ----- -----
<S> <C> <C>
PC Advisory Partners I, L.P. 164,987 6,346
c/o SPO Partners & Co.
591 Redwood Highway
Suite 3215
Mill Valley, California 94941
PC Intermediate Holdings, L.P. 16,333,722 628,220
c/o SPO Partners & Co.
591 Redwood Highway
Suite 3215
Mill Valley, California 94941
</TABLE>
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