Exhibit 3.1
RESTATED
CERTIFICATE OF INCORPORATION
OF
PLUM CREEK TIMBER COMPANY, INC.
The undersigned, James A. Kraft, certifies that he is the Senior Vice
President, General Counsel and Secretary of Plum Creek Timber Company, Inc., a
corporation organized and existing under the laws of the State of Delaware (the
"Corporation"), and does hereby further certify as follows:
(1) The name of the Corporation is Plum Creek Timber Company, Inc.
(2) The original Certificate of Incorporation of the Corporation was
filed with the Secretary of State of the State of Delaware on June 5, 1998.
(3) The Restated Certificate of Incorporation of the Corporation (the
"Restated Certificate of Incorporation") was duly adopted by in accordance
with the provisions of Section 245 of the General Corporation Law of the
State of Delaware.
(4) The Restated Certificate of Incorporation only restates and
integrates and does not further amend the provisions of the Certificate of
Incorporation of the Corporation (the "Existing Certificate of
Incorporation"), and there is no discrepancy between the provisions of the
Existing Certificate of Incorporation and the provisions of the Restated
Certificate of Incorporation.
(5) The text of the Restated Certificate of Incorporation hereby is
restated to read in its entirety as set forth in Exhibit A hereto.
IN WITNESS WHEREOF, Plum Creek Timber Company, Inc., has caused this
Certificate to be duly executed in its corporate name this 5th day of
April, 2002.
PLUM CREEK TIMBER COMPANY, INC.
By: /s/ James A. Kraft
-------------------------------------
Name: James A. Kraft
Title: Senior Vice President,
General Counsel and Secretary
Exhibit A
RESTATED
CERTIFICATE OF INCORPORATION
OF
PLUM CREEK TIMBER COMPANY, INC.
I. FIRST: The name of the corporation is: Plum Creek Timber Company, Inc.
(hereinafter, the "Corporation").
II. 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.
III. 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").
IV. 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) 300,634,566 shares shall be shares of Common Stock, par value
$.01 per share (the "Common Stock"), (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 of the Corporation:
1. 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.
1
2. (a) At every meeting of the stockholders of the Corporation, every
holder of Common Stock shall be entitled to one vote in person or by proxy for
each share of Common Stock standing in such holder's name on the transfer books
of the Corporation.
(b) 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 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.
3. 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 Stock based on the aggregate number of shares of Common
Stock outstanding. For the purposes of this section C.3, 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.
4. 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 Stock, 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.
E. Restrictions on Ownership and Transfer of Equity Stock.
1. (a) Limitation on Beneficial Ownership.
2
(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).
(ii) Except as provided in section E.3 of this Article FOURTH,
any purported Transfer that, if effective, would result in any Person
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.
(b) 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.
(c) 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.
(d) Transfers Resulting in Corporation Failing to Qualify as a
"Domestically 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.
(e) 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
3
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.
(b) 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 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 undertakings 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 transaction 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.
F. Excess Stock
1. (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
4
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 conversion, 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
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.
(b) 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
Corporation 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 Corporation 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
automatically 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
5
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.
(c) 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.
2. 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 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.
3. 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.
4. 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.
6
5. 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 reasonably 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.
6. Liquidation of the Corporation. In the event of any voluntary or
involuntary 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 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.
7. 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
7
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.
8. 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.
(b) 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
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.
(c) 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)
8
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.
9. 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.
10. 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
9
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.
G. 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.
H. 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.
I. 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 Corporation, 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 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.
10
J. 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.
V. FIFTH: A. At each annual meeting of stockholders, the directors 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 each director so elected shall hold office for a term
expiring at the next annual meeting of stockholders and until such
director's successor is duly elected and qualified or until such director's
earlier death, resignation or removal. Notwithstanding the foregoing,
directors in office as of October 9, 2001 shall serve until the expiration
of their respective current terms of office in 2002, 2003 or 2004. The
Board of Directors shall have the authority, 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 Incorporation, 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 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,
11
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 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.
C. 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 office 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 until the end of the term of
office to which they are appointed and until such director's successor
is duly elected and qualified, or until such director's earlier death,
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. In the event of a vacancy in
the Board of Directors, the remaining directors, except as otherwise
provided by law, may exercise the powers of the full Board of
Directors until such vacancy is filled.
VI. 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 stockholders and may not be taken by
written consent of the stockholders in lieu of such meeting.
VII. 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
12
stockholders, solely by the affirmative vote of at least 66 2/3% 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 66
2/3% of the combined voting power of the outstanding shares of capital
stock of the corporation entitled to vote.
VIII. EIGHTH: No director of the Corporation shall be liable to the Corporation
or its stockholders 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.
IX. 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.
X. 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.
XI. 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, (iii) any charitable foundation over
which any such Person has discretionary authority and (iv) any heirs or
executors of any such Person.
"Beneficial Ownership," shall be calculated as follows:
(i) 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
13
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 otherwise); and
(ii) when used elsewhere in this Certificate of Incorporation, 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.
"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 Partners, 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 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.
"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
14
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
or 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.
"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 Stock, 5% of the lesser of (1)
the total number of shares of Common Stock outstanding, or (2) the value of the
outstanding shares of 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.
"PCMC Partners" shall mean PC Advisory Partners I, L.P., a Delaware limited
partnership, and PC Intermediate Holdings, L.P., a Delaware limited partnership.
"Permitted Transferee" shall mean 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.
"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
15
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.
16