AMENDMENT NO. 1
TO AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 to Agreement and Plan of Merger (this "Amendment
No. 1"), dated as of June 12, 2001, is made by and among Plum Creek Timber
Company, Inc., a Delaware corporation ("Plum Creek"), Georgia-Pacific
Corporation, a Georgia corporation ("G-P"), and North American Timber Corp., NPI
Timber, Inc., GNN Timber, Inc., GPW Timber, Inc., LRFP Timber, Inc., and NPC
Timber, Inc., each a Delaware corporation and wholly-owned subsidiary of G-P
(each a "Spinco" and, collectively, the "Spincos"). Capitalized terms used but
not defined herein shall have the meanings ascribed to such terms in the Merger
Agreement.
WHEREAS, Plum Creek, G-P and each of the Spincos are parties to the
Agreement and Plan of Merger, dated as of July 18, 2000 (the "Merger
Agreement").
WHEREAS, Plum Creek, G-P and each of the Spincos desire to amend the
Merger Agreement on the terms provided herein.
WHEREAS, each of the Board of Directors of Plum Creek, G-P and each of
the Spincos has approved and declared advisable this Amendment No. 1 and the
transactions contemplated hereby.
WHEREAS, in connection with the execution of this Amendment No. 1, SPO
and certain individuals have entered into Amendment No. 1 to Voting Agreement
and Consent with Plum Creek and G-P, dated as of the date hereof.
NOW THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and adequacy of which are hereby
acknowledged, the parties hereto, intending to be legally bound hereby, agree as
follows:
1. AMENDMENT TO THE SEVENTH RECITAL OF THE MERGER AGREEMENT. The
seventh recital of the Merger Agreement is hereby amended to insert the words ",
as amended by Amendment No. 1 to Voting Agreement and Consent, dated as of June
12, 2001" after the word "hereof" in the third line thereto.
2. AMENDMENT TO SECTION 1.01 OF THE MERGER AGREEMENT. Section 1.01 of
the Merger Agreement is hereby amended to:
(a) insert the following defined terms to read as follows
in their entirety:
"G-P Tax Matters Officers' Certificate" shall mean the G-P Tax Matters
Officers' Certificate substantially in the form attached hereto as Exhibit I.
"Insurance Binder" shall mean one or more binders of insurance, issued
by one or more insurance carriers reasonably acceptable to G-P and Plum Creek,
binding such insurance carriers unconditionally, except as respects non-payment
of premium, to issue one or more insurance policies (i) providing a minimum of
$500 million of tax opinion
guarantee insurance coverage reasonably acceptable to G-P and Plum Creek and
(ii) containing terms and conditions customary to such insurance.
"Plum Creek Tax Matters Officers' Certificate" shall mean the Plum
Creek Tax Matters Officers' Certificate substantially in the form attached
hereto as Exhibit J.
(b) delete the defined term "Fort Bragg Note" in its
entirety;
(c) delete the defined term "Private Letter Ruling" in
its entirety;
(d) amend and restate the defined term "Tax Matters
Agreement" to read as follows in its entirety:
"Tax Matters Agreement" shall mean the agreement substantially
in the form attached to this Agreement as Exhibit C; and
(e) amend the defined term "Timber Group Timber Agreements" to
insert the words "to enable Plum Creek to continue to qualify as a Real Estate
Investment Trust under the Code and" after the word "necessary" in the second
line thereto.
3. AMENDMENT TO SECTION 2.01(a) OF THE MERGER AGREEMENT. Section
2.01(a) of the Merger Agreement is hereby amended to insert the words ", as
amended and restated on June 12, 2001" after the word "hereof" in the fourth
line thereto.
4. AMENDMENT TO SECTION 4.24 OF THE MERGER AGREEMENT. Section 4.24 of
the Merger Agreement is hereby amended and restated to read as follows in its
entirety:
Section 4.24 REDEMPTION. Upon completion of the Redemption,
the Spincos collectively will hold all of the assets and have assumed all of the
liabilities (whether accrued, absolute, contingent or otherwise) attributed to
the Timber Group. As of June 2, 2001, the aggregate outstanding indebtedness
attributed to the Timber Group was $635.4 million. Between June 2, 2001 and the
date of Amendment No. 1, G-P and its Subsidiaries have incurred no indebtedness
for borrowed money attributable to the Timber Group other than borrowings in the
ordinary course of business.
5. AMENDMENT TO SECTION 4.29 OF THE MERGER AGREEMENT. Section 4.29 of
the Merger Agreement is hereby deleted in its entirety.
6. AMENDMENT TO ARTICLE VI OF THE MERGER AGREEMENT. Article VI of the
Merger Agreement is hereby amended to insert Section 6.21 to read as follows in
its entirety:
Section 6.21 INSURANCE BINDER. G-P agrees to use commercially
reasonable efforts to obtain prior to the Closing Date the Insurance Binder. One
or more Spincos shall be responsible for all obligations relating to any
premiums or other costs and expenses incurred in obtaining such Insurance Binder
or the insurance policy issued pursuant to such binder; provided, however, that
the Spincos shall not be required to pay more than $24.25 million for such
obligations.
7. AMENDMENT TO SECTION 6.01 OF THE MERGER AGREEMENT. Section 6.01 of
the Merger Agreement is hereby amended to insert subsection (e) to read as
follows in its entirety:
(e) Each of G-P and Plum Creek agrees to provide the G-P Tax
Matters Officers' Certificate and the Plum Creek Tax Matters Officers'
Certificate, respectively, on or prior to each of the (i) date that the SEC
declares the Merger Registration Statement effective, (ii) Notice of Redemption
Date and (iii) Closing Date, in each case as requested by special counsel to G-P
and Plum Creek.
8. AMENDMENT TO SECTION 6.03(d)(x) OF THE MERGER AGREEMENT. Section
6.03(d)(x) of the Merger Agreement is hereby amended and restated to read as
follows in its entirety:
(x) take any action that is intended or may reasonably be
expected to result in G-P not being able to make any of the representations and
warranties set forth in the G-P Tax Matters Officers' Certificate or to cause
any of such representations and warranties to become untrue in any material
respect.
9. AMENDMENT TO SECTION 6.04(d) OF THE MERGER AGREEMENT. Section
6.04(d) of the Merger Agreement is hereby amended to (a) delete the word "or" in
the fifth line of Section 6.04(d)(ix) and (b) delete subsection (x) in its
entirety and insert in its stead the following subsections (x) and (xi) to read
as follows in their entirety:
(x) take any action that is intended or may reasonably be
expected to result in Plum Creek not being able to make any of the
representations and warranties set forth in the Plum Creek Tax Matters Officers'
Certificate or to cause any of such representations and warranties to become
untrue in any material respect; or
(xi) agree, in writing or otherwise, to take any of the
foregoing action.
10. AMENDMENT TO SECTION 6.06(b) OF THE MERGER AGREEMENT. Section
6.06(b) of the Merger Agreement is hereby amended to insert "or 2001" after
"2000" in the second line thereto.
11. AMENDMENT TO SECTION 6.07(a) OF THE MERGER AGREEMENT. Section
6.07(a) of the Merger Agreement is hereby amended to delete the words "promptly
following the receipt of the Private Letter Ruling" and inserting in their stead
the words "as promptly as practicable after the Merger Registration Statement
shall have become effective" in the second line thereto.
12. AMENDMENT TO SECTION 6.07(b) OF THE MERGER AGREEMENT. Section
6.07(b) of the Merger Agreement is hereby amended to delete the words "promptly
following the receipt of the Private Letter Ruling" and inserting in their stead
the words "as promptly as practicable after the Merger Registration Statement
shall have become effective" in the second line thereto.
13. AMENDMENT TO SECTION 6.08(a) OF THE MERGER AGREEMENT. Section
6.08(a) of the Merger Agreement is hereby amended to delete the words "but in no
event prior to the receipt of the Private Letter Ruling," in the seventeenth
line thereto.
14. AMENDMENT TO SECTION 6.20 OF THE MERGER AGREEMENT. Section 6.20 of
the Merger Agreement is hereby amended to insert the words "or that would not
allow Plum Creek to continue to qualify as a Real Estate Investment Trust under
the Code" after the word "Code" in the fourth line thereto.
15. AMENDMENT TO SECTION 7.01 OF THE MERGER AGREEMENT. Section 7.01 of
the Merger Agreement is hereby amended to (a) delete the word "and" in the
second line of Section 7.01(g); (b) delete the period at the end of Section
7.04(h) and insert in its stead "; and"; and (c) insert subsection (i) to read
as follows in its entirety:
(i) the Insurance Binder shall have been issued and be in full
force and effect.
16. AMENDMENT TO SECTION 7.01(e) OF THE MERGER AGREEMENT. Section
7.01(e) of the Merger Agreement is hereby amended and restated to read as
follows in its entirety:
(e) Plum Creek shall have received the opinion of Skadden,
Arps, Slate Meagher & Flom LLP, special counsel to Plum Creek, and G-P shall
have received the opinion of McDermott Will & Emery, special counsel to G-P,
each dated as of the Notice of Redemption Date, in form and substance reasonably
satisfactory to each of Plum Creek and G-P, respectively, based upon facts,
representations and assumptions set forth in such opinion which are consistent
with the state of facts existing at the Notice of Redemption Date, to the effect
that the Redemption will qualify as a distribution described in sections 355(a)
and (c) and, if applicable, section 361(c) of the Code and that the consummation
of the Mergers will not alter such conclusion;
17. AMENDMENT TO SECTION 7.01(h) OF THE MERGER AGREEMENT. Section
7.01(h) of the Merger Agreement is hereby amended by inserting the words "and
with respect to shares of Plum Creek Common Stock received in the Mergers" after
the word "Redemption" in the third line thereto.
18. AMENDMENT TO SECTION 7.02(a) OF THE MERGER AGREEMENT. Section
7.02(a) of the Merger Agreement is hereby amended by inserting the words "and
the G-P Tax Matters Officers' Certificate" after the word "Agreement" in the
second line thereto.
19. AMENDMENT TO SECTION 7.03(a) OF THE MERGER AGREEMENT. Section
7.03(a) of the Merger Agreement is hereby amended by inserting the words "and
the Plum Creek Tax Matters Officers' Certificate" after the word "Agreement" in
the second line thereto.
20. AMENDMENT TO SECTION 7.04 OF THE MERGER AGREEMENT. Section 7.04 of
the Merger Agreement is hereby amended to (a) delete the word "and" in the
second line of Section 7.04(f); (b) delete the period at the end of Section
7.04(g) and insert in its stead "; and"; and (c) insert subsections (h) and (i)
to read as follows in their entirety:
(h) the Insurance Binder shall have been issued and be in full force
and effect; and
(i) Plum Creek shall have received the opinion of Skadden, Arps, Slate
Meagher & Flom LLP, special counsel to Plum Creek, and G-P shall have received
the opinion of McDermott Will & Emery, special counsel to G-P, each dated as of
the Closing Date, in form and substance reasonably satisfactory to each of Plum
Creek and G-P, respectively, based upon facts, representations and assumptions
set forth in such opinion which are consistent with the state of facts existing
at the Closing Date, to the effect that the Redemption will qualify as a
distribution described in sections 355(a) and (c) and, if applicable, section
361(c) of the Code and that the consummation of the Mergers will not alter such
conclusion.
21. AMENDMENT TO SECTION 7.05 OF THE MERGER AGREEMENT. Section 7.05 of
the Merger Agreement is hereby amended to (a) delete the word "and" in the
seventh line of Section 7.05(c); (b) delete the period at the end of Section
7.05(d) and insert in its stead "; and"; and (c) insert subsections (e) and (f)
to read as follows in their entirety:
(e) the Insurance Binder shall have been issued and be in full force
and effect; and
(f) Plum Creek shall have received the opinion of Skadden, Arps, Slate
Meagher & Flom LLP, special counsel to Plum Creek, and G-P shall have received
the opinion of McDermott Will & Emery, special counsel to G-P, each dated as of
the Closing Date, in form and substance reasonably satisfactory to each of Plum
Creek and G-P, respectively, based upon facts, representations and assumptions
set forth in such opinion which are consistent with the state of facts existing
at the Closing Date, to the effect that the Redemption will qualify as a
distribution described in sections 355(a) and (c) and, if applicable, section
361(c) of the Code and that the consummation of the Mergers will not alter such
conclusion.
22. AMENDMENT TO SECTION 8.01(e) OF THE MERGER AGREEMENT. Section
8.01(e) of the Merger Agreement is hereby amended to (a) delete the words "the
twelve month anniversary of the execution of this Agreement" and insert in their
stead "April 8, 2002" in the second line thereto and (b) delete the words "that
if Section 7.01(e) has not been satisfied, this Agreement may be extended not
more than three months by Plum Creek or G-P by written notice to the other
party; and provided further, however," in the fifth line thereto.
23. AUTHORIZATION, EXECUTION AND DELIVERY; NO CONFLICTS.
(a) This Amendment No. 1 has been duly authorized, executed
and delivered by each party hereto and constitutes a valid and binding agreement
of each such party, enforceable against such party in accordance with its terms,
except to the extent that its enforceability may be subject to applicable
bankruptcy, insolvency, reorganization, moratorium and similar laws affecting
the enforcement of creditors' rights generally and by general equitable
principles.
(b) The execution and delivery of this Amendment No. 1 and
the consummation of the transactions contemplated hereby do not and will not (i)
violate or conflict with any provisions of the constituent documents of each
party hereto; (ii) violate or conflict with any Laws or Orders of any
Governmental Authority applicable to any party hereto or by which any of such
parties' properties or assets may be bound; (iii) require any filing with, or
permit, consent or approval of, or the giving of any notice to, any Governmental
Authority; or (iv) result in a violation or breach of, conflict with, constitute
(with or without due notice or lapse of time or both) a default (or give rise to
any right of termination, cancellation or acceleration) under, or result in the
creation of any Lien upon any of the properties or assets of any of Plum Creek,
the Timber Group, the Spincos or any of their Subsidiaries under, or give rise
to any obligation, right of termination, cancellation, acceleration or increase
of any obligation or a loss of a material benefit under, any of the terms,
conditions or provisions of any Contracts to which Plum Creek or its
Subsidiaries or, in each case on behalf of the Timber Group, G-P, the Spincos or
any of their Subsidiaries is a party, or by which any such Person or any of its
properties or assets are bound, excluding from the foregoing clauses (ii), (iii)
and (iv) conflicts, violations, breaches, defaults, rights or payment and
reimbursement, terminations, modifications, accelerations and creations and
impositions of Liens which would not reasonably be expected to, individually or
in the aggregate, have a Plum Creek Material Adverse Effect or a Timber Group
Material Adverse Effect, as the case may be.
24. NO OTHER CONSENTS OR AMENDMENTS. Except as expressly amended
hereby, the provisions of the Merger Agreement are and shall remain in full
force and effect.
25. APPLICABLE LAW. This Amendment No. 1 and the legal relations
between the parties hereto shall be governed by and construed in accordance with
the laws of the State of Delaware, without regard to the conflict of laws rules
thereof.
26. COUNTERPARTS. This Amendment No. 1 may be executed in several
counterparts, each of which shall be deemed to be an original, and all of which
together shall be deemed to be one and the same instrument.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, Plum Creek, G-P and each of the Spincos has caused
this Amendment No. 1 to be executed by their respective officers thereunto duly
authorized, all as of the date first above written.
PLUM CREEK TIMBER COMPANY, INC.
By: /s/ Rick R. Holley
----------------------------------
Name: Rick R. Holley
Title: President and Chief
Executive Officer
GEORGIA-PACIFIC CORPORATION
By: /s/ A.D. Correll
----------------------------------
Name: A.D. Correll
Title: Chairman, Chief Executive
Officer and President
NORTH AMERICAN TIMBER CORP.
By: /s/ A.D. Correll
----------------------------------
Name: A.D. Correll
Title: Chief Executive Officer
NPI TIMBER, INC.
By: /s/ A.D. Correll
----------------------------------
Name: A.D. Correll
Title: Chief Executive Officer
GNN TIMBER, INC.
By: /s/ A.D. Correll
----------------------------------
Name: A.D. Correll
Title: Chief Executive Officer
GPW TIMBER, INC.
By: /s/ A.D. Correll
----------------------------------
Name: A.D. Correll
Title: Chief Executive Officer
LRFP TIMBER, INC.
By: /s/ A.D. Correll
----------------------------------
Name: A.D. Correll
Title: Chief Executive Officer
NPC TIMBER, INC.
By: /s/ A.D. Correll
----------------------------------
Name: A.D. Correll
Title: Chief Executive Officer