WEYERHAEUSER
COMPANY
$500,000,000
7.375% NOTES DUE
2019
UNDERWRITING
AGREEMENT
September 28,
2009
September 28, 2009
Morgan Stanley
& Co. Incorporated
1585
Broadway
New York, New
York 10036
Deutsche Bank
Securities Inc.
60 Wall
Street
New York, New
York 10005
J.P. Morgan
Securities Inc.
270 Park
Avenue
New York, New
York 10019
As
Representatives of the several Underwriters
Ladies and
Gentlemen:
Weyerhaeuser Company, a Washington corporation
(the “ Company ”), proposes to issue and sell to
the several underwriters named in Schedule I hereto (the “
Underwriters ”), for whom you are acting as
representatives (the “Representatives ”),
$500,000,000 aggregate principal amount of its 7.375% Notes due
2019 (the “ Securities ”). The
Securities are to be issued under an Indenture dated as of April 1,
1986, as amended and supplemented by the First Supplemental
Indenture thereto dated as of February 15, 1991, the Second
Supplemental Indenture thereto dated as of February 1, 1993,
the Third Supplemental Indenture thereto dated as of October 22,
2001, and the Fourth Supplemental Indenture thereto dated as of
March 12, 2002 (as so amended and supplemented, the “
Indenture ”), each between the Company and The Bank of
New York Mellon Trust Company, N.A. (formerly known as The Bank of
New York Trust Company, N.A.), as successor trustee (the “
Trustee ”), to JPMorgan Chase Bank (formerly known as
The Chase Manhattan Bank and Chemical Bank), as trustee (the
“ Original Trustee ”).
The Company has filed with the Securities and
Exchange Commission (the “ Commission ”) a
registration statement on Form S-3 (No. 333-159748),
including a prospectus, relating to securities (the “
Shelf Securities ”), including the Securities, to be
issued from time to time by the Company. Such
registration statement as amended to the date of this Agreement,
and including the information (if any) deemed to be part of such
registration statement pursuant to Rule 430B (“ Rule
430B ”) under the Securities Act of 1933, as amended (the
“ Securities Act ”), is hereinafter referred to
as the “ Registration Statement ,” and the
related prospectus covering the Shelf Securities dated June 4,
2009, in the form first used to confirm sales of the Securities (or
in the form first made available to the Underwriters by the Company
to meet requests of purchasers pursuant to Rule 173 under the
Securities Act) is hereinafter referred to as the “ Basic
Prospectus .” The Basic Prospectus, as
supplemented by the prospectus supplement dated September 28, 2009
relating to the Securities, in the form first used to confirm sales
of the Securities (or in the form first made available to the
Underwriters by the Company to meet requests of purchasers pursuant
to Rule 173 under the Securities Act) is hereinafter referred to as
the “ Prospectus ,” and the term “
preliminary prospectus ” means any preliminary form of
the Prospectus including, without limitation, the Time of Sale
Prospectus (as defined below). For purposes of this
Agreement, “ free writing prospectus ” has the
meaning set forth in Rule 405 under the Securities Act, “
Time of Sale Prospectus ” means, collectively, the
Basic Prospectus, the preliminary prospectus supplement dated
September 28, 2009 relating to the Securities and the free writing
prospectuses, if any, identified in Schedule II hereto, and “
Applicable Time ” means 4:30 p.m. (New York
City time) on the date hereof. As used herein, the terms
“Registration Statement,” “Basic
Prospectus,” “preliminary prospectus,”
“Time of Sale Prospectus” and “Prospectus”
shall include the documents, if any, incorporated and deemed to be
incorporated by reference therein. The terms “
supplement ,” “ amendment ,” and
“ amend ” as used herein with respect to the
Registration Statement, the Basic Prospectus, the Time of Sale
Prospectus, any preliminary prospectus or the Prospectus shall
include all documents subsequently filed by the Company with the
Commission pursuant to the Securities Exchange Act of 1934, as
amended (the “ Exchange Act ”), that are deemed
to be incorporated by reference therein.
1.
Representations and Warranties . The Company
represents and warrants to and agrees with each of the Underwriters
that:
(a) The
Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or
threatened by the Commission. If the Registration
Statement is an automatic shelf registration statement as defined
in Rule 405 under the Securities Act, the Company was at all
relevant times or is a well known seasoned issuer (as defined in
Rule 405 under the Securities Act) eligible to use the Registration
Statement as an automatic shelf registration statement and the
Company has not received notice that the Commission objects to the
use of the Registration Statement as an automatic shelf
registration statement.
(b) (i)
Each document, if any, filed or to be filed pursuant to the
Exchange Act and incorporated or deemed to be incorporated by
reference in the Time of Sale Prospectus or the Prospectus complied
or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations of the
Commission thereunder, (ii) the Registration Statement, when
it first became effective, at the respective times (if subsequent
to such first effective date) when the Company’s most recent
Annual Report on Form 10-K or any amendment thereto was filed with
the Commission and at each “new effective date” with
respect to the Underwriters pursuant to Rule 430B(f)(2) of the
Securities Act Regulations (as defined below) did not and will not,
and the Registration Statement, as amended or supplemented, if
applicable, will not, contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein not misleading,
(iii) the Registration Statement as of the date hereof does
not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading, (iv) the
Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects
with the Securities Act and the applicable rules and regulations of
the Commission thereunder (the “ Securities Act
Regulations ”), (v) the Time of Sale Prospectus does not
and, at the Applicable Time, will not, and at the time of each sale
of Securities in connection with the offering when the Prospectus
is not yet available to prospective purchasers and at the Closing
Date (as defined in Section 4), the Time of Sale Prospectus,
as then amended or supplemented by the Company, if applicable, will
not, contain any untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading, (vi) each free writing prospectus, when taken together
with the preliminary prospectus accompanying, or delivered prior to
delivery of, or filed prior to the first use of, such free writing
prospectus, did not, and at the Closing Date will not, contain any
untrue statement of a material fact or omit to state a material
fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading and
(vii) the Prospectus does not contain and, as amended or
supplemented, if applicable, will not contain any untrue statement
of a material fact or omit to state a material fact necessary to
make the statements therein, in the light of the circumstances
under which they were made, not misleading, except that the
representations and warranties set forth in this paragraph do not
apply to (A) statements or omissions in the Registration Statement,
the Time of Sale Prospectus, any preliminary prospectus, any free
writing prospectus or the Prospectus based upon information
relating to any Underwriter furnished to the Company in writing by
such Underwriter through you expressly for use therein or (B) any
trustee’s Statement of Eligibility on Form T-1 (each, a
“ Form T-1 ”) under the Trust Indenture Act of
1939, as amended (the “ Trust Indenture Act
”).
(c) The
Company is not an “ineligible issuer” in connection
with the offering pursuant to (or for purposes of or within the
meaning of) Rule 164, 405 or 433 under the Securities
Act. Any free writing prospectus that the Company is
required to file pursuant to Rule 433(d) under the Securities Act
has been, or will be, filed with the Commission in accordance with
the requirements of the Securities Act and the Securities Act
Regulations. Each free writing prospectus that the
Company has filed, or is required to file, pursuant to Rule 433(d)
under the Securities Act or that was prepared by or behalf of or
used or referred to by the Company complies or will comply in all
material respects with the requirements of the Securities Act and
the Securities Act Regulations. Except for the free
writing prospectuses, if any, identified in Schedule II hereto, and
electronic road shows, if any, each furnished to you before first
use, the Company has not prepared, used or referred to, and will
not, without your prior consent, prepare, use or refer to, any free
writing prospectus. Each free writing prospectus
identified in Schedule II hereto, as of its issue date and at all
times through the completion of the public offering and sale of the
Securities, did not, does not and will not include any information
that conflicted, conflicts or will conflict with the information
contained in the Registration Statement, the Time of Sale
Prospectus or the Prospectus.
(d) The
Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of
its incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Time of
Sale Prospectus and the Prospectus and is duly qualified to
transact business and is in good standing (or the local equivalent)
in each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be in
good standing would not have a material adverse effect on the
Company and its subsidiaries, taken as a whole, or on the
Company’s ability to perform its obligations under this
Agreement, the Securities, the Indenture, the Assumption Agreement
dated as of January 1, 2009 (the “ Original Assumption
Agreement ”), between the Company and Weyerhaeuser NR
Company, a Washington corporation (“ WNR ”) or
the Assignment and Assumption Agreement (the “ Second
Assumption Agreement ”) dated as of the Closing Date (as
defined below) between the Company and WNR.
(e) Certain
direct and indirect subsidiaries of the Company (including, without
limitation, WNR) are identified on Exhibit A hereto (each a
“ Key Subsidiary ” and collectively, the “
Key Subsidiaries ”). Other than the Key
Subsidiaries, the Company has no subsidiary that would constitute a
“significant subsidiary” as such term is defined in
Rule 1-02 of Regulation S-X. Each Key
Subsidiary has been duly incorporated, is validly existing as a
corporation in good standing (or the local equivalent) under the
laws of the jurisdiction of its incorporation, has the corporate
power and authority to own its property and to conduct its business
as described in the Time of Sale Prospectus and the Prospectus and
is duly qualified to transact business and is in good standing (or
the local equivalent) in each jurisdiction in which the conduct of
its business or its ownership or leasing of property requires such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material adverse
effect on the Company and its subsidiaries, taken as a whole, or on
the ability of WNR to perform its obligations under the Original
Assumption Agreement or the Second Assumption Agreement; all of the
issued shares of capital stock of each Key Subsidiary have been
duly and validly authorized and issued, are fully paid and
non-assessable and, except as set forth in the Registration
Statement, the Time of Sale Prospectus and the Prospectus and are
owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims.
(f)
This Agreement has been duly authorized, executed and delivered by
the Company.
(g) The
outstanding shares of common stock, par value $1.25 per share (the
“ Common Stock ”), of the Company and the single
outstanding Special Voting Share (as defined below) have been duly
authorized and are validly issued, fully paid and
non-assessable. “Special Voting Shares”
means the shares of a series of Preference Shares, par value $1.00
per share, of the Company designated as the “Special Voting
Shares (A Series of Preference Shares).”
(h) The
Indenture has been duly qualified under the Trust Indenture Act and
has been duly authorized, executed and delivered by the Company and
is a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as may be
limited by bankruptcy, insolvency, reorganization, moratorium,
fraudulent conveyance, fraudulent transfer or other similar laws
relating to or affecting creditors’ rights generally and by
general principles of equity and public policy.
(i) The
Securities have been duly authorized by the Company and, at the
Closing Date, will have been duly executed by the Company and, when
authenticated by the Trustee in accordance with the provisions of
the Indenture and delivered to and paid for by the Underwriters in
accordance with this Agreement, will be valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium, fraudulent
conveyance, fraudulent transfer or other similar laws relating to
or affecting creditors’ rights generally and by general
principles of equity and public policy.
(j) The
Trustee has been duly appointed by the Company to serve as, and is,
the trustee, security registrar, transfer agent and paying agent
under the Indenture. The Trustee has filed a
Form T-1 as part of the Registration Statement and the
Form T-1 is effective.
(k) The
Securities and the Indenture conform and will conform in all
material respects to the respective statements relating thereto
contained in the Time of Sale Prospectus and the
Prospectus.
(l) The
execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement, the
Indenture, the Securities, the Original Assumption
Agreement and the Second Assumption Agreement, and the
execution and delivery by WNR of, and the performance by WNR of its
obligations under, the Original Assumption Agreement and
the Second Assumption Agreement, will not contravene any provision
of applicable law or the restated articles of incorporation or
bylaws of the Company or the articles of incorporation or bylaws of
WNR or any agreement or other instrument binding upon the Company
or any of its subsidiaries that is material to the Company and its
subsidiaries, taken as a whole, or any judgment, order or decree of
any governmental body, agency or court having jurisdiction over the
Company or any subsidiary, and no consent, approval, authorization
or order of, or qualification with, any governmental body or agency
is required for the performance by the Company of its obligations
under this Agreement, the Indenture, the Securities, the Original
Assumption Agreement or the Second Assumption Agreement
or for the performance by WNR of its obligations under the Original
Assumption Agreement or the Second Assumption Agreement,
except such as may be required by the securities or Blue Sky laws
of the various states in connection with the offer and sale of the
Securities. As used in this Agreement, all references to
“subsidiaries” of the Company include, without
limitation, WNR.
(m) There
has not occurred any material adverse change, or any development
involving a prospective material adverse change, in the condition,
financial or otherwise, or in the earnings, business or operations
of the Company and its subsidiaries, taken as a whole, from that
set forth in the Time of Sale Prospectus on the date of this
Agreement.
(n) There
are no legal or governmental proceedings pending or threatened to
which the Company or any of its subsidiaries is a party or to which
any of the properties of the Company or any of its subsidiaries is
subject that are required to be described in the Registration
Statement, the Time of Sale Prospectus or the Prospectus and are
not so described or any statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement, the Time of Sale Prospectus or the Prospectus or to be
filed as exhibits to the Registration Statement that are not
described or filed as required.
(o) Each
preliminary prospectus filed as part of the registration statement
as originally filed or as part of any amendment thereto, or filed
pursuant to Rule 424 under the Securities Act, complied when
so filed in all material respects with the Securities Act and the
Securities Act Regulations.
(p) The
Company and WNR are not, and after giving effect to the offering
and sale of the Securities and the application of the proceeds
thereof as described in the Prospectus neither the Company nor WNR
will be, required to register as an “investment
company” as such term is defined in the Investment Company
Act of 1940, as amended.
(q) The
Company and its subsidiaries (i) are in compliance with any
and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and safety,
the environment or hazardous or toxic substances or wastes,
pollutants or contaminants (“ Environmental Laws
”), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to
conduct their respective businesses and (iii) are in
compliance with all terms and conditions of any such permit,
license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses
or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, singly
or in the aggregate, have a material adverse effect on the Company
and its subsidiaries, taken as a whole.
(r) There
are no costs or liabilities associated with Environmental Laws
(including, without limitation, any capital or operating
expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or
approval, any related constraints on operating activities and any
potential liabilities to third parties) which would, singly or in
the aggregate, have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(s) There
are no contracts, agreements or understandings between the Company
and any person granting such person the right to require the
Company to file a registration statement under the Securities Act
with respect to any securities of the Company or to require the
Company to include such securities with the Securities registered
pursuant to the Registration Statement.
(t) The
Company and each of its subsidiaries (i) have all necessary
consents, authorizations, approvals, orders, certificates and
permits of and from, and have made all declarations and filings
with, all federal, state, local and other governmental,
administrative or regulatory authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease,
license and use their respective properties and assets and to
conduct their respective businesses in the manner described in the
Time of Sale Prospectus and the Prospectus, except to the extent
that the failure to obtain such consents, authorizations,
approvals, orders, certificates and permits or make such
declarations and filings would not have a material adverse effect
on the Company and its subsidiaries, taken as a whole, and
(ii) have not received any notice of proceedings relating to
revocation or modification of any such consent, authorization,
approval, order, certificate or permit which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(u) No
material labor dispute exists with the employees of the Company or
any of its subsidiaries or, to the Company’s knowledge, is
imminent; and the Company is not aware of any existing, threatened
or imminent labor disturbance by the employees of any of its
principal suppliers, manufacturers or contractors that could have a
material adverse effect on the Company and its subsidiaries, taken
as a whole.
(v) The
Company and its subsidiaries have good and marketable title in fee
simple to all real property and good and marketable title to all
personal property owned by them which is material to the Company
and its subsidiaries, taken as a whole, in each case free and clear
of all liens, encumbrances and defects, except such as (i) are
described in the Time of Sale Prospectus and the Prospectus,
(ii) do not materially affect the value of such property,
(iii) do not interfere with the use made and proposed to be
made of such property by them or (iv) would not have a
material adverse effect on the Company and its subsidiaries, taken
as a whole; any real property and buildings held under lease or
license by them are held under valid, subsisting and enforceable
leases or licenses, as the case may be, with such exceptions as are
not material to the Company and its subsidiaries, taken as a whole,
and do not interfere with the use made and proposed to be made of
such property and buildings by them in a manner that would have a
material adverse effect on the Company and its subsidiaries, taken
as a whole; and all licenses to harvest timber granted by Canada or
any province or territory thereof to the Company or any of its
subsidiaries are valid, subsisting and enforceable, with such
exceptions as are not material to the Company and its subsidiaries,
taken as a whole.
(w) Each
of the Company and its subsidiaries own, possess or can acquire on
reasonable terms, adequate trademarks, trade names and other rights
to inventions, know-how, patents, copyrights, confidential
information and other intellectual property (collectively, “
intellectual property rights ”) necessary to conduct
the business now operated by them, or presently employed by them,
and have not received any notice of infringement of or conflict
with asserted rights of others with respect to any intellectual
property rights that, if determined adversely to the Company or any
of its subsidiaries, would individually or in the aggregate
reasonably be expected to have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(x) The
financial statements and related notes included in the Registration
Statement, the Time of Sale Prospectus and the Prospectus present
fairly the financial position of the Company and its consolidated
subsidiaries as of the dates shown and their results of operations
and cash flows for the periods shown, and such financial statements
and the notes thereto have been prepared in conformity with
generally accepted accounting principles in the United States
applied on a consistent basis except as disclosed therein; and
there are no pro forma financial statements that the Company is
required to include or incorporate by reference in the Registration
Statement, the Time of Sale Prospectus or the Prospectus pursuant
to the Securities Act or the Exchange Act or the rules and
regulations of the Commission thereunder.
(y) The
Company and its subsidiaries maintain systems of internal
accounting controls sufficient to provide reasonable assurance that
(i) transactions are executed in accordance with
management’s general or specific authorizations;
(ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain asset
accountability; (iii) access to assets is permitted only in
accordance with management’s general or specific
authorization; and (iv) the recorded accountability for assets
is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(z) Except
for standing timber, for which the Company does not maintain
insurance, the Company and its subsidiaries have insurance covering
their respective properties, operations, personnel and businesses,
including business interruption insurance, which insurance is in
amounts and insures against such losses and risks as are adequate
to protect the Company and its subsidiaries and their respective
businesses taken as a whole; and neither the Company nor any of its
subsi
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