AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON MARCH 10, 2004
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM S-4
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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GEORGIA-PACIFIC CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
GEORGIA 2400
(State or Other Jurisdiction of (Primary Standard Industrial
Incorporation or Organization) Classification Code Number)
GEORGIA 93-0432081
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
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133 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30303
(404) 652-4000
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
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JAMES F. KELLEY
EXECUTIVE VICE PRESIDENT AND GENERAL COUNSEL
133 PEACHTREE STREET, N.E.
ATLANTA, GEORGIA 30303
(404) 652-4000
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
Of Agent For Service)
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE OF SECURITIES TO THE
PUBLIC: As soon as practicable after the effective date of this Registration
Statement.
If the securities being registered on this form are being offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, please check the following box. [ ]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box and
list the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule 462(d)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM PROPOSED MAXIMUM
AMOUNT TO BE OFFERING PRICE AGGREGATE
TITLE OF CLASS OF SECURITIES TO BE REGISTERED REGISTERED PER UNIT(1) OFFERING PRICE(1)
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8% Senior Notes Due 2024... $500,000,000 100% $500,000,000
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AMOUNT OF
TITLE OF CLASS OF SECURITIES TO BE REGISTERED REGISTRATION FEE
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8% Senior Notes Due 2024... $63,350
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(1) Estimated solely for the purpose of computing the registration fee in
accordance with Rule 457(f) under the Securities Act of 1933, as amended.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933, AS AMENDED, OR UNTIL THIS REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID
SECTION 8(a), MAY DETERMINE.
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THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. THESE
SECURITIES MAY NOT BE SOLD UNTIL THE REGISTRATION STATEMENT FILED WITH THE
SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER
TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE
SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED.
SUBJECT TO COMPLETION, DATED MARCH 10, 2004
PROSPECTUS
$500,000,000
GEORGIA-PACIFIC CORPORATION
OFFER TO EXCHANGE
8% SENIOR NOTES DUE 2024
THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR
ALL OUTSTANDING UNREGISTERED
8% SENIOR NOTES DUE 2024
----------------------
THE REGISTERED NOTES
- The new notes are being offered to satisfy certain of our obligations
under the exchange and registration rights agreement entered into in
connection with the private placement of the old notes.
- The terms of the new notes are substantially identical to the old
notes, except that the new notes have been registered under the
federal securities laws and will not bear any legend restricting their
transfer.
- We do not intend to list the new notes on any securities exchange or
seek approval for quotation through any automated trading system.
THE EXCHANGE OFFER
- The exchange offer will expire at 5:00 p.m., New York City time, on
, 2004, unless extended. We do not currently intend to
extend the expiration date.
- The exchange offer is not subject to any conditions other than that
the exchange offer not violate applicable law or any applicable
interpretation of the Staff of the Securities and Exchange Commission
and that there be no change in our business or financial affairs that,
in our reasonable judgment, might materially impair our ability to
proceed with, or the contemplated benefits of, the exchange offer.
- All old notes that are validly tendered and not validly withdrawn will
be exchanged for an equal principal amount of new notes.
- Tenders of old notes may be withdrawn at any time before the
expiration of the exchange offer.
- The exchange of old notes for new notes in the exchange offer will not
be a taxable event for U.S. federal income tax purposes.
- We will not receive any proceeds from the exchange offer.
----------------------
SEE "RISK FACTORS" BEGINNING ON PAGE 10 FOR A DISCUSSION OF THE FACTORS
THAT YOU SHOULD CONSIDER IN CONNECTION WITH THE EXCHANGE OFFER AND AN EXCHANGE
OF OLD NOTES FOR NEW NOTES.
----------------------
NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES
COMMISSION HAS APPROVED OR DISAPPROVED OF THESE SECURITIES OR DETERMINED THAT
THIS PROSPECTUS IS ACCURATE OR COMPLETE OR PASSED UPON THE ADEQUACY OR ACCURACY
OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
The date of this prospectus is , 2004.
TABLE OF CONTENTS
Where You Can Find More Information......................... ii
Incorporation of Certain Documents by Reference............. ii
Prospectus Summary.......................................... 1
Risk Factors................................................ 10
Forward-Looking Statements.................................. 19
Use of Proceeds............................................. 20
The Exchange Offer.......................................... 21
Description of the New Notes................................ 32
Certain United States Federal Income Tax Consequences....... 47
Plan of Distribution........................................ 52
Legal Matters............................................... 52
Experts..................................................... 53
EACH BROKER-DEALER THAT RECEIVES NEW NOTES FOR ITS OWN ACCOUNT PURSUANT TO
THE EXCHANGE OFFER MUST ACKNOWLEDGE THAT IT WILL DELIVER A PROSPECTUS IN
CONNECTION WITH ANY RESALE OF THE NEW NOTES. THE LETTER OF TRANSMITTAL STATES
THAT BY SO ACKNOWLEDGING AND BY DELIVERING A PROSPECTUS, A BROKER-DEALER WILL
NOT BE DEEMED TO ADMIT THAT IT IS AN "UNDERWRITER" WITHIN THE MEANING OF THE
SECURITIES ACT OF 1933, AS AMENDED. THIS PROSPECTUS, AS IT MAY BE AMENDED OR
SUPPLEMENTED FROM TIME TO TIME, MAY BE USED BY A BROKER-DEALER IN CONNECTION
WITH RESALES OF NEW NOTES RECEIVED IN EXCHANGE FOR OLD NOTES WHERE THE OLD NOTES
WERE ACQUIRED BY THE BROKER-DEALER AS A RESULT OF MARKET-MAKING ACTIVITIES OR
OTHER TRADING ACTIVITIES. SEE "PLAN OF DISTRIBUTION" IN THIS PROSPECTUS.
Any statements in this prospectus concerning the provisions of any document
are not complete. Such references are made to the copy of that document filed or
incorporated or deemed to be incorporated by reference as an exhibit to the
registration statement of which this prospectus is a part or otherwise filed
with the Securities and Exchange Commission, or SEC. Each statement concerning
the provisions of any document is qualified in its entirety by reference to the
document so filed.
You should rely only on the information contained or incorporated by
reference into this prospectus. No one has been authorized to give any
information or to make any representations, other than those contained or
incorporated by reference in this prospectus, in connection with any offer made
by this prospectus. If anyone provides you with different or inconsistent
information, you should not rely on it.
Neither the delivery of this prospectus nor any sale or exchange made
hereunder or thereunder shall, under any circumstances, create an implication
that the information contained or incorporated by reference in this prospectus
is correct as of any time subsequent to its date. You should assume that the
information appearing in this prospectus is accurate only as of the date on the
front cover of this prospectus. The business, financial condition, results of
operations and prospects of Georgia-Pacific Corporation may have changed since
that date.
i
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the SEC. Our SEC filings are available to the public over the
Internet at the SEC's website at http://www.sec.gov. Please note that the SEC's
website is included in this prospectus as an inactive textual reference only.
The information contained on the SEC's website is not incorporated by reference
into this prospectus and should not be considered to be part of this prospectus.
You may also read and copy any document we file with the SEC at its public
reference facility at 450 Fifth Street, N.W., Washington, D.C. 20549. You can
also obtain copies of the documents at prescribed rates by writing to the Public
Reference Room of the SEC at 450 Fifth Street, N.W., Washington, D.C. 20549.
Please call the SEC at 1-800-SEC-0330 for further information on the operation
of the public reference facility. Our SEC filings are also available at the
office of the New York Stock Exchange. For further information on obtaining
copies of our public filings at the New York Stock Exchange, you should call
(212) 656-5060.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
We "incorporate by reference" into this prospectus certain information we
file with the SEC, which means that we can disclose important information to you
by referring you to those documents. The information incorporated by reference
is an important part of this prospectus and information that we subsequently
file with the SEC will automatically update and supercede information in this
prospectus and in our other filings with the SEC. We incorporate by reference
the documents listed below, which we have already filed with the SEC, and any
future filings we make with the SEC under Section 13(a), 13(c), 14 or 15(d) of
the Securities Exchange Act until all securities covered by this prospectus have
been exchanged and all conditions to the consummation of the exchange offer have
been satisfied. We incorporate by reference our:
- annual report on Form 10-K for the fiscal year ended January 3, 2004;
and
- current reports on Form 8-K, filed with the SEC on January 28, 2004,
January 29, 2004, February 27, 2004 and March 3, 2004.
You may obtain a copy of these filings, other than an exhibit to a filing,
unless that exhibit is specifically incorporated by reference into that filing,
at no cost, by writing or calling us at the following address: 133 Peachtree
Street, N.E., Atlanta, Georgia 30303, (404) 652-4000, Attention: Corporate
Secretary.
TO OBTAIN TIMELY DELIVERY OF THIS INFORMATION, YOU MUST REQUEST IT NO LATER
THAN FIVE (5) BUSINESS DAYS BEFORE , 2004, THE EXPIRATION DATE OF
THE EXCHANGE OFFER.
In addition, while any notes remain outstanding, we will make available,
upon request, to any holder and any prospective purchaser of notes the
information required pursuant to Rule 144A(d)(4) under the Securities Act during
any period in which we are not subject to Section 13 or 15(d) of the Securities
Exchange Act.
ii
PROSPECTUS SUMMARY
This summary contains basic information about us and the exchange offer.
Because it is a summary, it does not contain all of the information that you
should consider in connection with the exchange offer. You should read this
entire prospectus carefully, including the section entitled "Risk Factors" and
our financial statements and the notes thereto, which are incorporated into this
prospectus by reference. In this prospectus, unless the context requires
otherwise, references to (1) "GP," "company," "we," "us" and "our" refer to
Georgia-Pacific Corporation and its subsidiaries and (2) any "fiscal" year of
our company refers to our fiscal year ended or ending on the Saturday closest to
December 31 of such year.
GEORGIA-PACIFIC CORPORATION
We are engaged in four principal business operations: the manufacture of
tissue products (including bath tissue, paper towels, and napkins) and
disposable tabletop products (including cups, plates, cutlery and containers);
the manufacture of containerboard and packaging (including corrugated packaging,
linerboard and medium); the manufacture of bleached pulp and paper (including
paper, market and fluff pulp, kraft and bleached board) and the manufacture and
distribution of building products (including plywood, oriented strand board,
various industrial wood products, and softwood and hardwood lumber as well as
certain non-wood products including gypsum board, chemicals and other products).
For fiscal 2003, we reported $20.3 billion of net sales, $1.8 billion of
cash provided by operations, $1.2 billion in total operating profits and $254
million in net income.
Prior to November 2, 2002, we were engaged in the distribution of paper
products, packaging and facility supplies through our paper products
distribution business, Unisource Worldwide, Inc. Effective November 2, 2002, we
sold a 60% controlling interest in Unisource to an affiliate of Bain Capital,
LLC.
Prior to October 6, 2001, we also engaged in the growing of timber on
approximately 4.7 million acres of timberlands that we owned or leased. During
2001, these timberlands supplied approximately 10% of the overall timber
requirements of our manufacturing facilities. On October 6, 2001, we completed
the spin off of the entities that operated our timberlands and their merger with
and into Plum Creek Timber Company, Inc.
We were organized in Georgia in 1927. Our principal executive offices are
located at 133 Peachtree Street, N.E., Atlanta, Georgia 30303, and our telephone
number is (404) 652-4000. Our website is located at www.gp.com. Information
contained on our website is not incorporated by reference into this prospectus
and is not part of this prospectus.
RECENT DEVELOPMENTS
On March 2, 2004, we announced our intention to call $250 million of our
outstanding 9.625% debentures due March 15, 2022. We anticipate that the
debentures will be redeemed on or about March 31, 2004. Funds available under
our revolving credit facility will be used to redeem these debentures. We expect
to record a first quarter 2004 pretax charge of approximately $11.5 million for
call premiums and to write off deferred debt issuance costs. The debentures
initially were issued by us in 1992.
On February 26, 2004, we announced that we had reached a definitive
agreement with a subsidiary of Koch Industries, Inc. for $610 million. We expect
the transaction to result in debt reduction of $535 million, which includes cash
and $73 million of debt to be assumed by Koch Cellulose, Inc. The sale,
consisting of assets and the stock of our Brunswick Pulp & Paper subsidiary,
will generate net after-tax proceeds to us equivalent to an all-asset sale at
approximately $735 million. We expect to record an after-tax expense of
approximately
1
$20 million upon closing. Closing of the transaction is subject to regulatory
approvals and satisfaction of customary closing conditions. Included in the
sale, which is expected to close early in the second quarter, are our pulp mills
at Brunswick, Ga. and New Augusta, Miss., a short-line railroad servicing the
New Augusta mill and the assets of two international sales offices.
2
THE EXCHANGE OFFER
On December 11, 2003, we completed an offering of $500,000,000 aggregate
principal amount of our 8% senior notes due 2024 in a transaction exempt from
registration under the Securities Act. Unless otherwise specified or unless the
context requires otherwise, in this prospectus, we refer to the 2024 notes sold
to the initial purchasers as the old notes and we refer to the offer and sale of
the old notes as the offering. We used the net proceeds from the offering to
repay a portion of amounts outstanding under our revolving credit facility. In
connection with the offering, we entered into a registration rights agreement
with the initial purchasers of the old notes in which we agreed to commence this
exchange offer. Accordingly, you may exchange your old notes for new notes that
have been registered under the Securities Act and have substantially the same
terms as the old notes. Unless otherwise specified or unless the context
requires otherwise, in this prospectus, we refer to the old notes and the new
notes together as the notes. The following summary of the exchange offer is not
complete. For a more complete description of the terms of the exchange offer,
see "The Exchange Offer" in this prospectus.
Securities Offered................................... $500,000,000 aggregate principal amount of our
8% senior notes due 2024, registered under the
Securities Act.
The terms of the new notes offered in the
exchange offer are substantially identical to
those of the old notes, except that the
transfer restrictions, registration rights and
penalty interest provisions relating to the
old notes do not apply to the new notes.
The Exchange Offer................................... We are offering new notes in exchange for a
like principal amount of our old notes. We are
offering these new notes to satisfy certain of
our obligations under a registration rights
agreement that we entered into with the
initial purchasers of the old notes. You may
tender your outstanding old notes for exchange
by following the procedures described under
the heading "The Exchange Offer" in this
prospectus.
Expiration Date; Tenders; Withdrawal................. The exchange offer will expire at 5:00 p.m.,
New York City time, on , 2004, unless
we extend it. We do not currently intend to
extend the expiration date. You may withdraw
any old notes that you tender for exchange at
any time prior to the expiration date of the
exchange offer. We will accept any and all old
notes validly tendered and not validly
withdrawn before the expiration date. See "The
Exchange Offer -- Procedures for Tendering Old
Notes" and "-- Withdrawals of Tenders of Old
Notes" in this prospectus for a more complete
description of the tender and withdrawal
period.
3
Procedures for Tendering Old Notes. If you wish to accept the exchange offer, you
must:
- complete, sign and date the accompanying
letter of transmittal, or a facsimile of the
letter of transmittal according to the
instructions contained in this prospectus
and the letter of transmittal;
- mail or otherwise deliver the letter of
transmittal, or a facsimile of the letter of
transmittal, together with the old notes and
any other required documents to the exchange
agent at the address indicated on the cover
page of the letter of transmittal; or
- if you hold old notes through The Depository
Trust Company, or DTC, and wish to
participate in the exchange offer, you must
comply with the Automated Tender Offer
Program procedures of DTC, by which you will
agree to be bound by the letter of
transmittal.
By signing, or agreeing to be bound by the
letter of transmittal, you will represent to
us that, among other things:
- any new notes that you receive will be
acquired in the ordinary course of your
business;
- you have no intent to participate in or an
arrangement or understanding with any person
or entity to participate in a distribution
of the new notes;
- if you are a broker-dealer, or are
participating in the exchange offer for the
purpose of distributing the new notes, that
you will comply with the registration and
prospectus delivery requirements of the
Securities Act; and
- you are not an "affiliate," as defined in
Rule 405 of the Securities Act, of ours or,
if you are an "affiliate," you will comply
with any applicable registration and
prospectus delivery requirements of the
Securities Act.
4
Special Procedures for Beneficial Owners............. If you are a beneficial owner of old notes
which are registered in the name of a broker,
dealer, commercial bank, trust company or
other nominee and you wish to tender your old
notes in the exchange offer, you should
contact that registered holder promptly and
instruct the registered holder to tender on
your behalf. If you wish to tender on your own
behalf, you must, prior to completing and
executing the letter of transmittal and
delivering your old notes, either make
appropriate arrangements to register ownership
of the old notes in your name or obtain a
properly completed bond power from the
registered holder. The transfer of registered
ownership may take considerable time and may
not be able to be completed before the
expiration date.
Guaranteed Delivery Procedures....................... If you wish to tender your old notes and your
old notes are not immediately available or you
cannot deliver your old notes, the letter of
transmittal or any other documents required by
the letter of transmittal, or to comply with
the applicable procedures under DTC's
Automated Tender Offer Program before the
expiration date, you must tender your old
notes according to the guaranteed delivery
procedures set forth in this prospectus under
"The Exchange Offer -- Guaranteed Delivery
Procedures."
Certain United States Federal Income Tax
Consequences....................................... Your exchange of old notes for new notes to be
issued in the exchange offer will not result
in any gain or loss to you for United States
federal income tax purposes. See "Certain
United States Federal Income Tax Consequences"
in this prospectus.
Use of Proceeds...................................... We will not receive any proceeds from the
issuance of new notes pursuant to the exchange
offer.
Exchange Agent....................................... The Bank of New York is serving as exchange
agent in connection with the exchange offer.
The address and telephone number of the
exchange agent are set forth in the section
captioned "The Exchange Offer -- Exchange
Agent" in this prospectus.
5
Shelf Registration................................... If applicable interpretations of the Staff of
the SEC do not permit us to effect the
exchange offer, or upon the request of any
holder of old notes under certain
circumstances, we will be required to file,
and use our reasonable best efforts to cause
to become effective, a shelf registration
statement under the Securities Act that would
cover resales of old notes. See "Description
of the New Notes -- Registration Rights;
Special Interest" in this prospectus.
Consequences of Your Failure to Exchange Your Old
Notes.............................................. Old notes that are not exchanged in the
exchange offer will continue to be subject to
the restrictions on transfer that are
described in the legend on the old notes and
in the indenture. In general, you may offer or
sell your old notes only if they are
registered under, or offered or sold under an
exemption from, the Securities Act and
applicable state securities laws. We do not
currently intend to register the old notes
under the Securities Act. If your old notes
are not tendered and accepted in the exchange
offer, it may become more difficult for you to
sell or transfer your old notes. See "Risk
Factors -- Risks Related to Our Indebtedness
and the Notes -- An active trading market for
the notes may not develop, which could reduce
their value" in this prospectus.
Consequences of Exchanging Your Old Notes............ Based on interpretations of the staff of the
SEC set forth in no-action letters issued to
unrelated third parties, we believe that you
will be allowed to resell the new notes that
we issue in the exchange offer without
complying with the registration and prospectus
delivery requirements of the Securities Act
if:
- you are acquiring the new notes in the
ordinary course of your business;
- you are not engaging in and do not intend
to engage in a distribution of the new
notes;
- you have no arrangement or understanding
with any person to participate in the
distribution of the new notes; and
- you are not an "affiliate," as defined in
Rule 405 under the Securities Act, of
ours.
6
If any of these conditions are not satisfied
and you transfer any new notes issued to you
in the exchange offer without delivering a
proper prospectus or without qualifying for a
registration exemption, you may incur
liability under the Securities Act. We will
not be responsible for, or indemnify you
against, any liability you incur.
If you are a broker-dealer and you will
receive new notes for your own account in
exchange for old notes that you acquired as a
result of market-making activities or other
trading activities, you will be required to
acknowledge that you will deliver a prospectus
in connection with any resale of the new
notes. See "Plan of Distribution" in this
prospectus for a description of the prospectus
delivery obligations of broker-dealers in the
exchange offer.
7
THE NEW NOTES
The following summary of the terms of the new notes is not complete. For a
more detailed description of the new notes, see "Description of the New Notes"
in this prospectus. We define capitalized terms used in this summary under
"Description of the New Notes -- Certain Definitions" section of this
prospectus.
Issuer............................................... Georgia-Pacific Corporation.
Notes Offered........................................ $500,000,000 principal amount of 8% Senior
Notes due 2024.
Maturity Date........................................ January 15, 2024.
Interest Payment Dates............................... January 15 and July 15, commencing July 15,
2004.
Security............................................. The new notes will be unsecured.
Ranking.............................................. The new notes will rank:
- equally with our existing and future
unsecured senior indebtedness;
- senior to any of our future subordinated
indebtedness;
- junior to our secured indebtedness up to
the value of the collateral securing that
indebtedness;
- effectively junior to our indebtedness
that has been guaranteed by subsidiaries
with respect to the assets and earnings of
those subsidiaries; and
- effectively junior to all existing and
future indebtedness and other
liabilities, including trade payables, of
all of our subsidiaries with respect to
the assets and earnings of those
subsidiaries.
As of January 3, 2004:
- we and our consolidated subsidiaries had
total debt (including short-term debt) of
$10,648 million;
- we had $168 million of secured
indebtedness outstanding and $8,200
million of unsecured senior indebtedness
outstanding (excluding debt of
subsidiaries); and
- our subsidiaries had $2,280 million of
indebtedness and $4,323 million of other
liabilities outstanding, including trade
payables and deferred income tax
liabilities.
See "Risk Factors -- Risks Related to Our
Indebtedness and the Notes -- The notes will
rank effectively junior in right of payment to
all indebtedness and other liabilities,
including trade payables, of our subsidiaries"
in this prospectus.
8
Optional Redemption.................................. We may redeem some or all of the new notes at
any time, in whole or in part, in cash, at a
redemption price equal to 100% of their
principal amount plus the make-whole premium
described under "Description of the New
Notes -- Optional Redemption" in this
prospectus.
Basic Covenants...................................... We will issue the new notes under an
indenture. The indenture, among other things,
limits our ability and the ability of our
subsidiaries to:
- create liens; and
- enter into sale and leaseback
transactions.
These covenants are subject to important
exceptions. For more detail, see "Description
of the New Notes -- Certain Covenants" in this
prospectus.
Use of Proceeds...................................... We will not receive any proceeds from the
issuance of new notes pursuant to the exchange
offer.
RISK FACTORS
You should consider carefully all of the information included or
incorporated by reference into this prospectus and, in particular, the
information under the heading "Risk Factors" beginning on page 10 in connection
with the exchange offer and an exchange of old notes for new notes.
9
RISK FACTORS
You should carefully consider the following risks and other information
contained in this prospectus, together with all of the other information
incorporated by reference into this prospectus, before deciding to exchange your
old notes for new notes. If any of the following risks or uncertainties actually
occurs, our business, financial condition and operating results could be
materially adversely affected.
RISKS RELATED TO OUR INDEBTEDNESS AND THE NOTES
OUR SUBSTANTIAL LEVEL OF INDEBTEDNESS COULD MATERIALLY ADVERSELY AFFECT OUR
ABILITY TO FULFILL OUR OBLIGATIONS UNDER THE NOTES, OUR ABILITY TO REACT TO
CHANGES IN OUR BUSINESS AND OUR ABILITY TO INCUR ADDITIONAL DEBT TO FUND FUTURE
NEEDS.
We have a substantial amount of debt. As of January 3, 2004 we had total
debt (including short-term debt) of $10,648 million, shareholders' equity of
$5,394 million, and a ratio of earnings to fixed charges of 1.3 to 1 for fiscal
2003.
Our substantial debt could have important consequences for our noteholders.
For example, it could:
- make it more difficult for us to satisfy our obligations with
respect to the notes;
- require us to dedicate a substantial portion of our cash flow from
operations to payments on our debt, thereby reducing funds
available for working capital, capital expenditures, acquisitions,
research and development and other purposes;
- increase our vulnerability to adverse economic and industry
conditions;
- limit our flexibility in planning for, or reacting to, changes in
our business and the industries in which we operate;
- limit our noteholders' rights to receive payments under the notes
if secured creditors have not been paid;
- place us at a competitive disadvantage compared to our competitors
that have relatively less debt; and
- limit our ability to borrow additional funds, or to dispose of
assets to raise funds, if needed, for working capital, capital
expenditures, acquisitions, research and development and other
purposes.
THE NOTES WILL RANK EFFECTIVELY JUNIOR IN RIGHT OF PAYMENT TO ALL INDEBTEDNESS
AND OTHER LIABILITIES, INCLUDING TRADE PAYABLES, OF OUR SUBSIDIARIES.
We conduct very substantial operations, including our international operations
and substantially all of our consumer products business, through subsidiaries.
Our subsidiaries are not guaranteeing the notes being issued in this offering.
However, $2,000 million in aggregate principal amount of our senior notes are
guaranteed by the subsidiaries that own our consumer products business, and our
senior credit facilities are guaranteed by all of our principal domestic
subsidiaries. In the event of our bankruptcy or the bankruptcy of any of our
subsidiaries, the holders of their liabilities, including guarantees,
indebtedness and trade payables, would generally be entitled to payment of their
claims from the assets of the affected subsidiaries before those assets were
made available for distribution to us. As a result, the claims of holders of the
notes will rank effectively junior to the claims of all of the creditors of our
subsidiaries, including trade creditors and holders of guaranteed debt. If any
indebtedness of our subsidiaries were to be accelerated, we cannot assure you
that the assets of the subsidiaries remaining after payment of such indebtedness
and other liabilities would be sufficient to repay our indebtedness in full,
10
including the notes. As of January 3, 2004 our subsidiaries had $2,250 million
of our indebtedness that they guaranteed, $2,280 million of their own
indebtedness (excluding amounts payable to affiliated entities) and $4,323
million of other liabilities outstanding, including trade payables and deferred
income tax liabilities. Subject to the restrictions set forth in our debt
instruments, our subsidiaries may be able to incur significant additional
indebtedness in the future.
OUR DEPENDENCE ON OUR SUBSIDIARIES FOR CASH FLOW MAY NEGATIVELY AFFECT OUR
ABILITY TO PAY THE PRINCIPAL, INTEREST AND OTHER AMOUNTS DUE ON THE NOTES.
As mentioned above, we conduct very substantial operations, including our
international operations and substantially all of our consumer products
business, through subsidiaries. Accordingly, our ability to pay our obligations,
including the principal and interest, premium, if any, on the notes offered
hereby and our other outstanding indebtedness, is dependent to a large degree
upon dividends and other distributions from our subsidiaries to us. Our
subsidiaries are separate and distinct legal entities and have no obligation,
contingent or otherwise, to pay the principal, interest and other amounts on the
notes or make any funds available to us for payment therefor. The ability of our
subsidiaries to pay dividends or transfer assets to us may be restricted by
applicable state law and contractual restrictions. Although the indentures
governing certain of our outstanding indebtedness limit the ability of our
subsidiaries to enter into consensual restrictions on their ability to pay
dividends to us, these limitations are subject to a number of significant
qualifications and exceptions.
RESTRICTIONS IMPOSED BY THE INDENTURE GOVERNING THE NOTES, OUR REVOLVING CREDIT
FACILITY AND OUR OTHER OUTSTANDING INDEBTEDNESS MAY LIMIT OUR ABILITY TO OPERATE
OUR BUSINESS AND TO FINANCE OUR FUTURE OPERATIONS OR CAPITAL NEEDS OR TO ENGAGE
IN OTHER BUSINESS ACTIVITIES.
Agreements governing our outstanding indebtedness contain various covenants
that limit, among other things, our ability and the ability of our subsidiaries
to:
- borrow money or issue preferred stock;
- pay dividends on our stock or repurchase our stock;
- make investments;
- create liens;
- create restrictions on the ability of our restricted subsidiaries
to pay dividends or other amounts to us;
- enter into sale and leaseback transactions;
- engage in certain transactions with affiliates;
- expand into unrelated businesses; and
- consolidate, merge or sell all or substantially all of our assets
or substantially all of the assets of certain of our subsidiaries.
Some of the agreements governing our outstanding debt require us to
maintain compliance with certain financial ratios. Our ability to comply with
such ratios may be affected by events beyond our control. In the event of a
default under any of these agreements, the lenders could elect to declare all
amounts outstanding under the agreements to be immediately due and payable. The
acceleration of amounts due under one of our debt instruments may also cause a
cross-default under our other debt instruments. If the debt under these
agreements or the notes were to be accelerated, it is possible that our assets
would not be sufficient to repay such debt in full. In particular, noteholders
will be paid only if we have assets remaining after we pay amounts due on our
secured debt, including our receivables facility.
11
WE AND OUR SUBSIDIARIES MAY BE ABLE TO INCUR SUBSTANTIALLY MORE DEBT, INCLUDING
SECURED DEBT.
Subject to the restrictions in our revolving credit facility, the
indentures governing certain of our outstanding notes and our other outstanding
indebtedness, we and our subsidiaries may incur significant additional debt,
including secured debt that would be effectively senior to the notes to the
extent of the collateral securing such debt. The indenture governing the notes
allows us to grant liens on accounts receivable and inventory to secure
indebtedness without ratably securing the notes. At January 3, 2004, the amounts
of our consolidated accounts receivable, net of allowances, and inventory were
$1,915 million and $2,192 million, respectively. As of January 3, 2004:
- we had $168 million of secured indebtedness outstanding;
- we had $8,200 million of unsecured senior indebtedness outstanding
(excluding debt of subsidiaries); and
- we had $1,629 million available for borrowing under our various
credit facilities, which, if borrowed, would be unsecured senior
indebtedness.
Although the terms of these facilities and the indentures governing certain of
our outstanding notes contain restrictions on the incurrence of additional debt,
these restrictions are subject to a number of important exceptions, and debt
incurred in compliance with these restrictions could be substantial. If we and
our subsidiaries incur significant additional debt, the related risks that we
face could intensify.
OUR ABILITY TO GENERATE CASH DEPENDS ON MANY FACTORS BEYOND OUR CONTROL, AND WE
MAY NOT BE ABLE TO GENERATE THE CASH REQUIRED TO SERVICE OUR DEBT.
Our ability to make payments on and refinance our indebtedness, including
the notes, and to fund our operations will depend on our ability to generate
cash in the future. Our historical financial results have been, and our future
financial results are expected to be, subject to substantial fluctuations, and
will depend upon general economic conditions and financial, competitive,
legislative, regulatory and other factors that are beyond our control. If we are
unable to meet our debt service obligations or fund our other liquidity needs,
we may need to refinance all or a portion of our debt, including the notes,
before maturity, seek additional equity capital or sell assets. If any of these
events occurs, we may not be able to pay our debt or refinance it on
commercially reasonable terms, or at all, or to fund our liquidity needs.
If for any reason we are unable to meet our debt service obligations, we
would be in default under the terms of our agreements governing our outstanding
debt. If such a default were to occur, the lenders could elect to declare all
amounts outstanding under the facility immediately due and payable, and the
lenders would not be obligated to continue to advance funds under the revolving
credit facility. The acceleration of amounts due under one of our debt
instruments may also cause a cross-default under our other debt instruments. If
the amounts outstanding under these agreements were to be accelerated, it is
possible that our assets would not be sufficient to repay in full the money owed
to the banks or to our debt holders, including holders of the notes.
AN ACTIVE TRADING MARKET FOR THE NOTES MAY NOT DEVELOP, WHICH COULD REDUCE THEIR
VALUE.
The new notes are a new issue of securities for which there is currently no
public market. We do not intend to list the new notes on any national securities
exchange or automated quotation system. Accordingly, no market for the new notes
may develop, and any market that develops may not last. If the new notes are
traded, they may trade at a discount from their initial offering price,
depending on prevailing interest rates, the market for similar securities, our
performance and other factors. To the extent that an active trading market does
not develop, you may not be able to resell your new notes at a fair market value
or at all.
12
If a market for the new notes does develop, it is possible that you will
not be able to sell your notes at a particular time or that the prices that you
receive when you sell will not be favorable. It is also possible that any
trading market that does develop for the new notes will not be liquid. Future
trading prices of the new notes will depend on many factors, including:
- our operating performance, prospects and financial condition or the
operating performance, prospects and financial condition of companies
in our industry generally;
- the interest of securities dealers in making a market for the new
notes;
- prevailing interest rates;
- the market for similar securities; and
- general economic conditions.
Historically, the market for non-investment grade debt has been subject to
disruptions that have caused volatility in prices. If a market for the new notes
develops, it is possible that the market for the new notes will be subject to
disruptions and price volatility. Any disruptions may have a negative effect on
holders of the new notes, regardless of our prospects and financial performance.
To the extent that old notes are surrendered and accepted in the exchange
offer, the trading market for unsurrendered old notes and for
surrendered-but-unaccepted old notes could be adversely affected due to the
limited amount of old notes that are expected to remain outstanding following
the exchange offer. Generally, when there are fewer outstanding securities of an
issue, there is less demand to purchase that security, which results in a lower
price for the security. Conversely, if many old notes are not surrendered, or
are surrendered-but-unaccepted, the trading market for the new notes could be
adversely affected. See "Plan of Distribution" and "The Exchange Offer" in this
prospectus for further information regarding the distribution of the new notes
and the consequences of failure to participate in the exchange offer.
RISKS RELATING TO THE EXCHANGE OFFER AND THE NOTES
IF YOU CHOOSE NOT TO EXCHANGE YOUR OLD NOTES, THE PRESENT TRANSFER RESTRICTIONS
WILL REMAIN IN FORCE AND THE MARKET PRICE OF YOUR OLD NOTES COULD DECLINE.
If you do not exchange your old notes for new notes under the exchange
offer, then you will continue to be subject to the transfer restrictions on the
old notes as set forth in the offering memorandum distributed in connection with
the private offering of the old notes. In general, the old notes may not be
offered or sold unless they are registered or exempt from registration under the
Securities Act and applicable state securities laws. Except as required by the
registration rights agreement, we do not intend to register resales of the old
notes under the Securities Act. You should refer to the section of this
prospectus entitled "The Exchange Offer" for information about how to tender
your old notes.
YOU MUST COMPLY WITH THE EXCHANGE OFFER PROCEDURES IN ORDER TO RECEIVE FREELY
TRADABLE NEW NOTES.
Delivery of the new notes in exchange for the old notes tendered and
accepted for exchange pursuant to the exchange offer will be made only after
timely receipt by the exchange agent of the following:
- Certificates for the old notes or a book-entry confirmation of a
book-entry transfer of the old notes into the exchange agent's account
at DTC, as a depository, including an agent's message, as defined in
this prospectus, if the tendering holder does not deliver a letter of
transmittal;
13
- A completed and signed letter of transmittal, or facsimile copy, with
any required signature guarantees, or, in the case of a book-entry
transfer, an agent's message in place of the letter of transmittal;
and
- Any other documents required by the letter of transmittal.
Therefore, holders of the old notes who would like to tender the old notes
in exchange for new notes should be sure to allow enough time for the old notes
to be delivered on time. We are not required to notify you of defects or
irregularities in tenders of old notes for exchange. Old notes that are not
tendered or that are tendered but we do not accept for exchange will, following
consummation of the exchange offer, continue to be subject to the existing
transfer restrictions under the Securities Act and will no longer have the
registration and other rights under the registration rights agreement. See "The
Exchange Offer -- Procedures for Tendering Old Notes" in this prospectus.
SOME HOLDERS WHO EXCHANGE THEIR OLD NOTES MAY BE DEEMED TO BE UNDERWRITERS AND
THESE HOLDERS WILL BE REQUIRED TO COMPLY WITH THE REGISTRATION AND PROSPECTUS
DELIVERY REQUIREMENTS IN CONNECTION WITH ANY RESALE TRANSACTION.
If you exchange your old notes in the exchange offer for the purpose of
participating in a distribution of the new notes, you may be deemed to have
received restricted securities. If you are deemed to have received restricted
securities, you will be required to comply with the registration and prospectus
delivery requirements of the Securities Act in connection with any resale
transaction.
RISKS RELATING TO OUR BUSINESS
SOME OF OUR BUSINESSES, PARTICULARLY OUR BUILDING PRODUCTS BUSINESS, ARE HIGHLY
CYCLICAL, AND PROLONGED PERIODS OF WEAK DEMAND OR EXCESS SUPPLY MAY HAVE A
MATERIAL ADVERSE EFFECT ON OUR BUSINESS, FINANCIAL CONDITION AND OPERATING
RESULTS AND MAY IMPAIR OUR ABILITY TO SATISFY OUR OBLIGATIONS UNDER THE NOTES.
Some of our businesses, especially our building products business, are
subject to cyclical market pressures. Prices are determined by overall supply
and demand in the market for our products and our competitors' products. In
particular, market prices of building products historically have been volatile
and cyclical, and we, like other producers, may have limited ability to control
the timing and amount of pricing changes for our products. Demand for building
products is driven mainly by factors outside of our control, such as general
economic and political conditions, the construction, repair and remodeling and
industrial markets, weather and population growth. The supply of building
products fluctuates based on available manufacturing capacity, and excess
capacity in the industry can result in significant declines in market prices for
those products. Likewise, cyclical pressures in demand and supply for our
consumer products, packaging, and bleached pulp and paper products may impact
our operating results for periods at a time. Prolonged periods of weak demand or
excess supply in any of our businesses could negatively impact our market share,
seriously reduce our margins and harm our liquidity, financial condition and
operating results.
PROLONGED WEAKNESS IN MARKET CONDITIONS FOR BUILDING PRODUCTS MAY FORCE US TO
CONTINUE TO REDUCE OR SUSPEND PRODUCTION AT OUR MILLS.
Weak market conditions in the building products market may continue to
adversely affect our sales levels and profitability and may cause us to suspend
production at or permanently close certain of our mills and other facilities.
For example, in fiscal 2001, we announced temporary or permanent closures of
certain structural panels mills, lumber mills, industrial wood products mills,
building products distribution centers and gypsum plants. In addition, in fiscal
14
2002, we announced the temporary closure of four sawmills and the suspension of
production at three plywood plants and, in the second quarter of fiscal 2003, we
announced the closure of one particleboard plant. We may further reduce
production at our sawmills and plywood plants. Permanent closures of facilities
could cause us to incur charges for employee terminations and asset write-downs,
which could materially adversely affect our business, financial condition and
operating results.
WE FACE INTENSE COMPETITION IN EACH OF OUR BUSINESSES. IF WE CANNOT SUCCESSFULLY
COMPETE IN THE MARKETPLACE, OUR BUSINESS, FINANCIAL CONDITION AND OPERATING
RESULTS MAY BE MATERIALLY ADVERSELY AFFECTED AND OUR ABILITY TO SATISFY OUR
OBLIGATIONS UNDER THE NOTES MAY BE IMPAIRED.
Consumer Products and Packaging. We face intense competition in the tissue
and disposable tabletop products, packaging, and bleached pulp and paper
industries in our major North American and European markets. Competition in the
various markets in which we participate comes from companies of various sizes,
several of which have greater financial and other resources than we have and
thus can better withstand adverse economic or market conditions.
We compete on the basis of brand recognition and loyalty, product quality
and performance, price, marketing, product development, service, sales and
distribution. Competing in these industries involves the following key risks
that could have a material adverse effect on our business, financial condition
and operating results:
- failure to anticipate and respond to changing consumer preferences
and demographics;
- failure to develop new and improved products;
- failure of consumers to accept our brands and exhibit brand
loyalty;
- aggressive pricing by competitors, which may force us to decrease
prices or increase advertising and promotional spending in order
to maintain market share;
- failure of our advertising and promotional spending to increase
(or even maintain) sales volume and market share; and
- consolidations of retailers and distribution channels that shrink
our potential markets.
Building Products. Many of our building products are commodity products,
and if we do not maintain price competitiveness, we may lose significant market
share. Our ability to keep our prices at competitive levels depends in large
part on our ability to control our costs. We cannot assure you that we will be
able to maintain our costs at a level sufficient for us to compete effectively
and maintain current levels of sales and profitability. In addition, recent
consolidations in the building products business among our competitors and
increased access to the United States market by foreign competitors may put
additional pressure on us to reduce costs in order to maintain market share. If
we are unable to effectively adjust our price structure to address such
increased competitive pressures, our sales level and profitability could be
harmed and our operations could be materially adversely affected.
OUR INVESTMENTS IN RESEARCH AND DEVELOPMENT MAY NOT GENERATE NEW AND IMPROVED
CONSUMER PRODUCTS, WHICH COULD RESTRAIN OUR REVENUE GROWTH AND HARM OUR
OPERATING RESULTS AND MARKET SHARE.
We intend to continue to make investments in research and development to
develop new and improved consumer products. We need to continue to develop new
products and improve our existing products in order to maintain our market
share. We may not have sufficient resources to invest in the development of new
and enhanced products. Our failure to continue
15
making such investments could restrain our revenue growth and harm our operating
results and market share and may impair our ability to satisfy our obligations
under the notes. In addition, even if we are able to invest sufficient resources
in research and development, these investments may not generate net sales that
exceed our expenses, generate any net sales at all or result in any commercially
acceptable products.
OUR OPERATIONS REQUIRE SUBSTANTIAL CAPITAL, AND WE MAY NOT HAVE ADEQUATE CAPITAL
RESOURCES TO PROVIDE FOR ALL OF OUR CASH REQUIREMENTS AND OUR ABILITY TO SATISFY
OUR OBLIGATIONS UNDER THE NOTES MAY BE IMPAIRED.
Our operations require substantial capital. Expansion or replacement of
existing facilities or equipment and compliance with environmental laws and
regulations may require substantial capital expenditures. Our capital resources
may not be sufficient for these purposes. If our capital resources are
inadequate to provide for our operating needs, capital expenditures and other
cash requirements, this shortfall could have a material adverse effect on our
business and liquidity and impact our ability to service our debt, including the
notes.
RECOGNITION OF A MINIMUM PENSION LIABILITY WOULD CAUSE A SIGNIFICANT REDUCTION
IN NET WORTH.
As a result of recent stock market declines, the market value of the assets
in our pension plans, including our nonqualified and foreign plans, has
declined. Statement of Financial Accounting Standards No. 87, "Accounting for
Pensions," requires balance sheet recognition of a minimum liability if the fair
value of plan assets is less than the accumulated benefit obligation, or ABO, at
the end of the year. The ABO for our pension plans exceeded our pension plan
assets at October 31, 2002. As a result, we took a non-cash after-tax charge to
shareholders' equity of $580 million during fiscal 2002. In the fourth quarter
of fiscal 2002, we amended our credit facilities to exclude the impact of this
non-cash charge. During 2003, we recorded a non-cash after-tax credit to
shareholders' equity of $152 million primarily resulting from a partial recovery
of stock market declines. Total cash contributions for fiscal year 2003 were
$119 million, compared to $56 million in fiscal year 2002. It is possible that
reduction in market value of the assets of our pension plans in future years
could cause us to be in breach of the net worth covenants under our credit
facilities.
IF THE COST OF KEY RAW MATERIALS INCREASES, OUR COST OF SALES WILL INCREASE, OUR
OPERATING RESULTS MAY BE MATERIALLY ADVERSELY AFFECTED AND OUR ABILITY TO
SATISFY OUR OBLIGATIONS UNDER THE NEW NOTES MAY BE IMPAIRED.
We depend heavily on access to sufficient, reasonably-priced quantities of
wood, wood fiber, pulp and wastepaper. We use wood fiber to make pulp, which we
use along with purchased wastepaper to manufacture our tissue and paper
products. We also use wood fiber and wastepaper to manufacture containerboard.
Furthermore, we expect to purchase annually over $1 billion of wood and wood
fiber for use by our building products business. We purchase all of our wood and
wood fiber from third parties. If the costs of these or other raw materials we
purchase increase, our cost of sales will increase, and our operating results
may be materially adversely affected. We also buy and sell pulp and can be
impacted by pulp price fluctuations. Furthermore, we may not be able to pass
increased raw materials prices on to our customers if the market or existing
agreements with our clients do not allow us to raise the prices of our finished
products. If price adjustments significantly trail the increase in raw materials
prices or if we cannot effectively hedge against price increases, our operating
results may be materially adversely affected and our ability to satisfy our
obligations under the notes may be impaired.
16
IF WE CANNOT ADEQUATELY PROTECT OUR INTELLECTUAL PROPERTY RIGHTS, OUR OPERATING
RESULTS MAY BE HARMED.
As a company that manufactures and markets consumer products, we rely
heavily on trademarks and copyrights to protect our brands, patents and trade
secrets in the manufacture of many of our products. These protections may not
adequately safeguard our intellectual property rights and we may incur
significant costs to defend our intellectual property rights, which may harm our
operating results. Although we are not aware that any of our intellectual
property rights infringe upon the proprietary rights of third parties, third
parties may make such claims in the future. Any infringement claims, whether
with or without merit, could be time-consuming, result in costly litigation or
damages, undermine the exclusivity and value of our brands, decrease sales or
require us to enter into royalty or licensing agreements that may not be on
acceptable terms.
RISK FACTORS RELATING TO ENVIRONMENTAL REGULATION AND ASBESTOS LIABILITY
WE INCUR SUBSTANTIAL COSTS RELATED TO COMPLIANCE WITH CURRENT AND FUTURE
ENVIRONMENTAL LAWS AND REGULATIONS AND TO ADDRESS ENVIRONMENTAL LIABILITIES FOR
WHICH WE ARE HELD RESPONSIBLE, EACH OF WHICH COULD MATERIALLY ADVERSELY AFFECT
OUR BUSINESS, CASH FLOW AND LIQUIDITY.
Our business is subject to stringent environmental laws and regulations,
particularly with respect to discharges of pollutants and other emissions on or
into land, water and air, and the use, disposal and remediation of hazardous
substances and contaminants. Compliance with these laws and regulations is an
important factor in our business. We have incurred and expect to continue to
incur significant expenditures to comply with applicable environmental laws and
regulations. Moreover, some or all of the environmental laws and regulations to
which we are subject could become more stringent in the future, which could
affect our production costs and overall profitability. Our failure to comply
with applicable environmental laws and regulations and permit requirements could
result in civil or criminal fines or penalties or enforcement actions, including
regulatory or judicial orders enjoining or curtailing operations or requiring
corrective measures, the installation of pollution control equipment or other
mandated actions.
In addition, we currently are, and from time to time in the future will be,
involved in a number of environmental matters and legal proceedings. These
matters and proceedings in the past have caused, and in the future may cause, us
to incur substantial costs. Such proceedings are based on liability under
environmental laws for damages resulting from past or present spills or releases
of hazardous or toxic substances on or from our properties, or on tort liability
relating to exposure to hazardous substances. Liability under these laws may be
imposed without regard to whether we knew of, or caused, the release of such
substances on our property. In connection with various sales of businesses
completed in the past, we have agreed to indemnify the purchasers of those
businesses against certain environmental claims. Accordingly, we may incur
substantial additional costs should we be required to make payments under those
indemnification agreements, and those costs could materially adversely affect
our operating results, cash flow and liquidity. In addition, recently, various
lawsuits seeking class-action status and alleging harm from exposure to wood
products treated with Chromated Copper Arsenate, or CCA, have been filed in
state and federal courts against us and other companies.
For additional information regarding our environmental-related claims and
other legal proceedings, please see our Form 10-K for the fiscal year ended
January 3, 2004, which is incorporated by reference into this prospectus.
PAYMENTS FOR ASBESTOS-RELATED CLAIMS (THE TOTAL AMOUNTS OF WHICH ARE UNCERTAIN)
MAY MATERIALLY ADVERSELY AFFECT OUR CASH FLOW AND LIQUIDITY.
We and many other companies are defendants in suits brought in various
courts around the nation by plaintiffs who allege that they have suffered
personal injury as a result of exposure to
17
asbestos containing products. These suits allege a variety of lung and other
diseases based on alleged exposure to products previously manufactured by us.
Our asbestos liabilities relate primarily to joint systems products manufactured
by Bestwall Gypsum Company and our gypsum business that contained small amounts
of asbestos fiber. We discontinued using asbestos in the manufacture of these
products in 1977.
In fiscal 2001, 2002 and 2003, working with National Economic Research
Associates (NERA) and Navigant Consulting (formerly known as Peterson
Consulting), our external consultants, we recorded pre-tax charges totaling $563
million for asbestos liabilities and defense costs, net of anticipated insurance
recoveries, that we expect to pay through 2013.
Projecting liabilities for asbestos litigation is subject to a number of
important risks and uncertainties, including the possibility that the number of
asbestos claims filed against us in the future will be greater than projected;
the risk that the cost of defending and settling current and future asbestos
claims will be higher than projected, resulting in more rapid depletion of
available insurance coverage and higher out-of-pocket costs; the possibility of
additional insolvencies among insurance carriers; the risk that final resolution
of allocation, coverage or other issues affecting available insurance coverage
will result in lower insurance recoveries than forecast; the possibility that
adverse jury verdicts could require us to pay damages in amounts greater than
the amounts for which we now settle cases; and the risk that bankruptcies of
other asbestos defendants may increase our costs in the future.
These or other factors could cause our actual liabilities to be materially
higher, and our insurance recoveries to be materially lower, than those
projected and recorded to date. If these or other factors cause us to determine
that the assumptions used by NERA or Navigant Consulting in their latest
projections are no longer reasonable, or if we determine that our asbestos
exposure net of insurance recoveries for years after 2013 will be material, we
may have to establish additional reserves relating to asbestos beyond the
charges already taken, and the amount of these reserves may be material. We
cannot estimate the amount of any such additional reserves at this time.
For additional information regarding our asbestos-related liabilities and
legal proceedings, please see our Form 10-K for the fiscal year ended January 3,
2004, which is incorporated by reference into this prospectus.
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FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements. We have also made
forward-looking statements in reports filed with the SEC that we incorporate by
reference into this prospectus. For purposes of the exchange offer, the safe
harbor provisions of Section 27A of the Securities Act do not apply to these
forward-looking statements. Statements that are not historical facts, including
statements about our beliefs and expectations, are forward-looking statements.
Forward-looking statements include statements generally preceded by, followed by
or that include the words "believe," "expect," "anticipate," "plan," "estimate"
or similar expressions. These statements include, among others, statements
regarding our expected business outlook, anticipated financial and operating
results, strategies, contingencies, financing plans, working capital needs,
sources of liquidity, capital expenditures, amounts and timing of expenditures
and the adequacy of our reserves with respect to liabilities relating to
asbestos-containing products or the environment (and amounts and timing of
insurance recoveries covering those expenses) and contemplated transactions.
Forward-looking statements reflect our current expectations and are not
guarantees of performance. These statements are based on our management's
beliefs and assumptions, which in turn are based on currently available
information. Important assumptions relating to these forward-looking statements
include, among others, assumptions regarding demand for our products, expected
pricing levels, raw material costs, the timing and cost of planned capital
expenditures, the estimated cost of environmental compliance, expected outcomes
of pending litigation, the expected costs of pending and future asbestos and
environmental claims, the solvency of our insurers and the ultimate resolution
of allocation and coverage issues with those insurers (including, without
limitation, issues relating to asbestos and environmental claims), competitive
conditions and general economic conditions. These assumptions could prove
inaccurate. Forward-looking statements also involve risks and uncertainties,
which could cause actual results to differ materially from those contained in
any forward-looking statement. Many of these factors are beyond our ability to
control or predict. Such factors include, but are not limited to, factors
discussed under the heading "Risk Factors" and the following:
- changes in general economic conditions and interest rates;
- changes in the availability of capital;
- changes in competitive conditions and prices in our markets;
- changes in the relationship between supply of and demand for our
products;
- foreign currency fluctuations relative to the United States dollar;
- fluctuations in raw material and labor costs;
- changes in other significant operating expenses;
- unanticipated expenditures with respect to environmental, safety and
health laws; and
- timing and occurrence of events, including events and resulting
expenses related to asbestos-related claims against us.
You should not place undue reliance on any forward-looking statements,
which are based on current expectations. Further, forward-looking statements
speak only as of the date they are made, and we undertake no obligation to
update publicly any of them in light of new information or future events.
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USE OF PROCEEDS
The exchange offer is intended to satisfy our obligations under the old
notes, the indenture and the registration rights agreement. We will not receive
any cash proceeds from the issuance of the exchange notes. You will receive, in
exchange for old notes tendered by you and accepted by us in the exchange offer,
new notes in the same principal amount and identical in all material respects to
the old notes. The old notes surrendered in exchange for the new notes will be
retired and cancelled and cannot be reissued. Accordingly, the issuance of the
new notes will not result in any increase in our outstanding indebtedness or
change in our capitalization.
Our net proceeds from the offering and sale of the old notes, which do not
include accrued interest on the old notes, were approximately $493 million,
after deducting related fees and expenses of the offering and the discount
payable to the initial purchasers. We used these net proceeds to repay $493
million outstanding under our revolving credit facility, which had $250 million
of borrowings outstanding at January 3, 2004 and a weighted average interest
rate of 3.3% at January 3, 2004 and a maturity date of November 28, 2005.
UNAUDITED PRO FORMA FINANCIAL INFORMATION
The following unaudited pro forma financial information is are presented to
show how Georgia-Pacific might have looked if the sale of certain assets of our
stand-alone pulp operations and the stock of our Brunswick Pulp & Paper
subsidiary to Koch Cellulose, Inc. and the related repayment of certain of our
indebtedness had been consummated. The pro forma balance sheet gives effect to
the transaction as if the sale had occurred on January 3, 2004. The pro forma
statements of operations give effect to the transaction as if the sale had
occurred at the beginning of the earliest period presented. This pro forma
information is based on, and should be read in conjunction with, our historical
financial statements that are incorporated by reference into this prospectus.
This pro forma financial information is presented for informational purposes and
is not indicative of the operating results that would have occurred had the
disposition been consummated as of the beginning of the earliest period
presented and is not necessarily indicative of future results.
20
GEORGIA-PACIFIC CORPORATION AND SUBSIDIARIES
PROFORMA CONSOLIDATED BALANCE SHEET
AS OF JANUARY 3, 2004
(IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
AS
REPORTED ADJUSTMENTS(1) PROFORMA
-------- -------------- --------
ASSETS
Current Assets:
Cash and equivalents............................. $ 51 $ 1 $ 52
Receivables, less allowances of $42.............. 1,915 (95) 1,820
Inventories...................................... 2,192 (72) 2,120
Deferred income tax assets....................... 125 125
Other current assets............................. 315 (1) 314
-------- ------- -------
4,598 (167) 4,431
-------- ------- -------
Property, plant and equipment, at cost............. 19,747 (1,478) 18,269
Accumulated depreciation......................... (10,627) 1,141 (9,486)
-------- ------- -------
Property, plant and equipment, net............... 9,120 (337) 8,783
-------- ------- -------
Goodwill, net...................................... 7,656 (169) 7,487
-------- ------- -------
Intangible assets, net............................. 716 $ -- 716
-------- ------- -------
Other assets....................................... 2,315 -- 2,315
-------- ------- -------
Total assets..................................... $24,405 $ (673) $23,732
======== ======= =======
LIABILITIES AND SHAREHOLDERS' EQUITY
Current liabilities:
Secured borrowings and short-term notes.......... $ 689 $ -- $ 689
Current portion of long-term debt................ 789 -- 789
Accounts payable................................. 1,563 (51) 1,512
Accrued compensation............................. 267 (7) 260
Other current liabilities........................ 1,115 28 1,143
-------- ------- -------
Total current liabilities.......................... 4,423 (30) 4,393
-------- ------- -------
Long-term debt, excluding current portion.......... 9,170 (605)(2) 8,565
-------- ------- -------
Other long-term liabilities........................ 3,832 (6) 3,826
-------- ------- -------
Deferred income tax liabilities.................... 1,586 1,586
-------- ------- -------
Shareholders' equity:.............................. 5,394 (32) 5,362
-------- ------- -------
Total liabilities and shareholders' equity......... $24,405 $ (673) 23,732
======== ======= =======
---------------
NOTES:
(1) To reflect the sale of Georgia-Pacific Corp's pulp business.
(2) To reflect the repayment of debt from net cash proceeds of $532 million and
assumption by buyer of $73 million in debt.
21
GEORGIA-PACIFIC CORPORATION AND SUBSIDIARIES
PROFORMA CONSOLIDATED STATEMENTS OF OPERATIONS
FISCAL YEAR ENDED 2003
(IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
AS
REPORTED ADJUSTMENTS(1) PROFORMA
-------- -------------- --------
Net sales.......................................... $20,255 $ (640) $19,615
-------- ------- -------
Costs and expenses:
Cost of sales.................................... 15,849 (511) 15,338
Selling and distribution......................... 1,307 (16) 1,291
Depreciation, amortization and accretion......... 1,045 (73) 972
General and administrative....................... 865 (15) 850
Interest, net.................................... 833 (19)(2) 814
Other losses, net................................ 21 (105) (84)
-------- ------- -------
Total costs and expenses........................... 19,920 (739) 19,181
-------- ------- -------
Income from continuing operations before income
taxes............................................ 335 99 434
Provision (benefit) for income taxes............... 109 1 110
-------- ------- -------
Income from continuing operations.................. $ 226 $ 98 $ 324
======== ======= =======
(Loss) from continuing operations:
Basic............................................ $ 0.90 $ 1.29
Diluted.......................................... $ 0.90 $ 1.29
Average number of shares outstanding:
Basic............................................ 250.4 250.4
Diluted.......................................... 251.4 251.4
22
GEORGIA-PACIFIC CORPORATION AND SUBSIDIARIES
PROFORMA CONSOLIDATED STATEMENTS OF OPERATIONS
FISCAL YEAR ENDED 2002
(IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
AS
REPORTED ADJUSTMENTS(1) PROFORMA
-------- -------------- --------
Net sales.......................................... $23,271 $ (593) $22,678
-------- ------- -------
Costs and expenses:
Cost of sales.................................... 18,115 (473) 17,642
Selling and distribution......................... 1,869 (14) 1,855
Depreciation, amortization and accretion......... 1,030 (71) 959
General and administrative....................... 1,054 (14) 1,040
Interest, net.................................... 841 (19)(2) 822
Other losses, net................................ 870 (1) 869
-------- ------- -------
Total costs and expenses........................... 23,779 (592) 23,187
-------- ------- -------
Income from continuing operations before income
taxes............................................ (508) (1) (509)
Provision (benefit) for income taxes............... (318) 4 (314)
-------- ------- -------
(Loss) from continuing operations.................. $ (190) $ (5) $ (195)
======== ======= =======
(Loss) from continuing operations:
Basic............................................ $ (0.80) $ (0.82)
Diluted.......................................... $ (0.80) $ (0.82)
Average number of shares outstanding:
Basic............................................ 237.6 237.6
Diluted.......................................... 237.6 237.6
23
GEORGIA-PACIFIC CORPORATION AND SUBSIDIARIES
PROFORMA CONSOLIDATED STATEMENTS OF OPERATIONS
FISCAL YEAR ENDED 2001
(IN MILLIONS, EXCEPT PER SHARE AMOUNTS)
AS
REPORTED ADJUSTMENTS(1) PROFORMA
-------- -------------- --------
Net sales.......................................... $25,016 $(706) $24,310
------- ----- -------
Costs and expenses:
Cost of sales.................................... 19,276 (557) 18,719
Selling and distribution......................... 2,025 (15) 2,010
Depreciation, amortization and accretion......... 1,343 (81) 1,262
General and administrative....................... 1,072 (21) 1,051
Interest, net.................................... 1,080 (19)(2) 1,061
Other losses, net................................ 534 1 535
------- ----- -------
Total costs and expenses........................... 25,330 (692) 24,638
------- ----- -------
(Loss) from continuing operations before income
taxes............................................ (314) (14) (328)
Provision (benefit) for income taxes............... 174 (5) 169
------- ----- -------
(Loss) from continuing operations.................. $ (488) $ (9) $ (497)
======= ===== =======
(Loss) from continuing operations:
Basic per share.................................. $ (2.14) $ (2.18)
Diluted per share................................ $ (2.14) $ (2.18)
---------------
NOTES:
(1) To reflect the sale of Georgia-Pacific Corp.'s pulp business.
(2) To reflect reduction of interest expense from the repayment of debt from
net cash proceeds of $532 million and the assumption by buyer of $73
million in debt.
24
THE EXCHANGE OFFER
PURPOSE AND EFFECT OF THE EXCHANGE OFFER
As a condition to the initial sale of the old notes, we and the initial
purchasers entered into an exchange and registration rights agreement dated as
of December 11, 2003. Pursuant to the registration rights agreement, we agreed
to:
- file a registration statement under the Securities Act relating to an
offer to exchange the old notes for the new notes with the SEC no
later than March 10, 2004; and
- use our reasonable best efforts to cause the registration statement to
become effective under the Securities Act no later than June 8, 2004
and to keep the exchange offer open for at least 20 business days.
We agreed to issue and exchange the new notes for all old notes validly
tendered and not validly withdrawn before the expiration of the exchange offer.
A copy of the registration rights agreement has been incorporated by reference
as an exhibit to the registration statement that includes this prospectus. The
registration statement is intended to satisfy some of our obligations under the
registration rights agreement.
The term "holder" with respect to the exchange offer means any person in
whose name old notes are registered on the trustee's books or any other person
who has obtained a properly completed bond power from the registered holder, or
any person whose old notes are held of record by The Depository Trust Company,
which we refer to as the Depository or DTC, who desires to deliver the old notes
by book-entry transfer at DTC.
RESALE OF THE NEW NOTES
We believe that you will be allowed to resell the new notes to the public
without registration under the Securities Act, and without delivering a
prospectus that satisfies the requirements of Section 10 of the Securities Act,
if you can make the representations set forth below under "-- Procedures for
Tendering Old Notes." However, if you intend to participate in a distribution of
the new notes, or you are an "affiliate" of us, as defined in Rule 405 of the
Securities Act, you must comply with the registration requirements of the
Securities Act and deliver a prospectus, unless an exemption from registration
is otherwise available to you. You have to represent to us in the letter of
transmittal accompanying this prospectus that you meet the conditions exempting
you from the registration requirements.
We base our view on interpretations by the staff of the SEC in no-action
letters issued to other issuers in exchange offers like ours. However, we have
not asked the SEC to consider this particular exchange offer in the context of a
no-action letter. Therefore, you cannot be sure that the SEC will treat this
exchange offer in the same way it has treated other exchange offers in the past.
A broker-dealer that has bought old notes for market-making or other
trading activities has to deliver a prospectus in order to resell any new notes
it receives for its own account in the exchange. This prospectus may be used by
a broker-dealer to resell any of its new notes. See "Plan of Distribution" in
this prospectus for more information regarding broker-dealers.
The exchange offer is not being made to, nor will we accept surrenders for
exchange from, holders of old notes in any jurisdiction in which the exchange
offer or the acceptance of the exchange offer would not be in compliance with
the securities or blue sky laws of such jurisdiction.
25
TERMS OF THE EXCHANGE OFFER
GENERAL. Based on the terms and conditions set forth in this prospectus
and in the accompanying letter of transmittal, we will accept for exchange any
and all old notes validly tendered and not validly withdrawn before the
expiration date.
Subject to the minimum denomination requirements of the new notes, we will
issue $1,000 principal amount of new notes in exchange for each $1,000 principal
amount of outstanding old notes validly tendered pursuant to the exchange offer
and not validly withdrawn before the expiration date. Holders may tender some or
all of their old notes pursuant to the exchange offer. However, old notes may be
tendered only in principal amounts that are integral multiples of $1,000.
The form and terms of the new notes are substantially identical to the form
and terms of the old notes except that:
- the new notes will be registered under the Securities Act and,
therefore, the new notes will not bear legends restricting the
transfer of the new notes, and
- holders of the new notes will not be entitled to any of the
registration rights of holders of old notes under the registration
rights agreement, which rights will terminate upon the consummation of
the exchange offer, or to the penalty interest provisions of the
registration rights agreement.
The new notes will evidence the same indebtedness as the old notes and will
be issued under, and be entitled to the benefits of, the same indenture that
governs the old notes. As a result, both the new notes and the old notes will be
treated as a single series of debt securities under the indenture. The exchange
offer does not depend on any minimum aggregate principal amount of old notes
being surrendered for exchange.
As of the date of this prospectus, $500,000,000 aggregate principal amount
of the old notes is outstanding, all of which is registered in the name of Cede
& Co., as nominee for DTC. Solely for reasons of administration, we have fixed
the close of business on , 2004 as the record date for the exchange
offer for purposes of determining the persons to whom we will initially mail
this prospectus and the letter of transmittal. There will be no fixed record
date for determining holders of the old notes entitled to participate in these
exchange offers.
As a holder of old notes, you do not have any appraisal or dissenters'
rights or any other right to seek monetary damages in court under the Georgia
Business Corporation Code, as amended, or the indenture governing the notes. We
intend to conduct the exchange offer in accordance with the provisions of the
registration rights agreement, the applicable requirements of the Securities
Act, the Exchange Act, and the related rules and regulations of the SEC. Old
notes that are not surrendered for exchange in the exchange offer will remain
outstanding, interest on those notes will continue to accrue and will be
entitled to the rights and benefits the holders have under the indenture
relating to the outstanding notes, except for any rights under the registration
rights agreement that by their terms terminate upon consummation of the exchange
offer.
We will be deemed to have accepted validly surrendered old notes if and
when we give oral or written notice of our acceptance to The Bank of New York,
which is acting as the exchange agent. The exchange agent will act as agent for
the tendering holders of old notes for the purpose of receiving the new notes
from us and delivering exchange notes to the holders.
If you surrender old notes in the exchange offer, you will not be required
to pay brokerage commissions or fees. In addition, subject to the instructions
in the letter of transmittal, you will not have to pay transfer taxes for the
exchange of old notes. We will pay all charges and expenses in connection with
the exchange offer, other than certain applicable taxes described below under
"-- Fees and Expenses."
26
EXPIRATION DATE; EXTENSIONS; AMENDMENTS
The "expiration date" means 5:00 p.m., New York City time, on ,
2004, unless we extend the exchange offer, in which case the expiration date is
the latest date and time to which we extend the exchange offer.
In order to extend the exchange offer, we will:
- notify the exchange agent of any extension by oral or written
communication;
- issue a press release or other public announcement, which will report
the approximate number of old notes deposited, before 9:00 a.m., New
York City time, on the next business day after the previously
scheduled expiration date.
During any extension of the exchange offers, all old notes previously
surrendered and not withdrawn will remain subject to the exchange offer.
We reserve the right:
- to delay accepting any old notes (in the event that the terms of the
exchange offer are materially altered and the exchange offer is
extended),
- to amend the terms of the exchange offer in any manner,
- to extend the exchange offer, or
- if, in the opinion of our counsel, the consummation of the exchange
offer would violate any law or interpretation of the staff of the SEC,
to terminate or amend the exchange offer by giving oral or written
notice to the exchange agent.
Any delay in acceptance, extension, termination or amendment will be
followed as soon as practicable by a press release or other public announcement.
If we amend the exchange offer in a manner that we determine constitutes a
material change, we will promptly disclose that amendment in a manner reasonably
calculated to inform the holder of old notes of the amendment, and we will
extend the exchange offer for a period of time that we will determine, depending
upon the significance of the amendment and the manner of disclosure to the
registered holders, if the exchange offer would have otherwise expired.
We will have no obligation to publish, advertise or otherwise communicate
any public announcement that we may choose to make, other than by making a
timely release to an appropriate news agency.
In all cases, issuance of the new notes for old notes that are accepted for
exchange will be made only after timely receipt by the exchange agent of a
properly completed and duly executed letter of transmittal or a book-entry
confirmation with an agent's message, in each case, with all other required
documents. However, we reserve the absolute right to waive any conditions of the
exchange offer, which we, in our reasonable discretion, determine are not
satisfied or any defects or irregularities in the surrender of old notes. All
conditions of the exchange offer will be satisfied or waived prior to the
expiration of the exchange offer. If a waiver constitutes a material change to
the exchange offer, we will promptly disclose the waiver in a manner reasonably
calculated to inform the holder of old notes of the waiver, and we will extend
the exchange offer for at least five business days. If we do not accept any
surrendered old notes for any reason set forth in the terms and conditions of
the exchange offer or if you submit old notes for a greater principal amount
than you want to exchange, we will return the unaccepted or non-exchanged old
notes to you, or substitute old notes evidencing the unaccepted or non-exchanged
portion, as appropriate. We will deliver new notes to tendering holders of old
notes that are accepted for exchange and we will return any old notes that we do
not accept for exchange for any reason to their tendering holder promptly after
expiration or termination of the exchange offer. See the information set forth
below under "-- Return of Old Notes."
27
INTEREST ON THE NEW NOTES
The new notes will accrue cash interest on the same terms as the old notes,
that is, at the rate of 8% per year, using a 360-day year consisting of twelve
30-day months and payable semi-annually in arrears on January 15 and July 15 of
each year. Interest payments will be made to holders of record of the new notes
on the immediately preceding January 1 and July 1. Old notes accepted for
exchange will not receive accrued interest at the time of exchange. However,
each new note will bear interest:
- from the later of (1) the last interest payment date on which interest
was paid on the old note surrendered in exchange for the new note or
(2) if the old note is exchanged for the new note on a date after the
record date for an interest payment date to occur on the new notes,
the date of that interest payment date, or
- if no interest has been paid on the old note, from December 11, 2003.
PROCEDURES FOR TENDERING OLD NOTES
If you wish to surrender old notes you must:
- complete and sign the letter of transmittal or send a timely
confirmation of a book-entry transfer of old notes to the exchange
agent,
- have the signatures on the letter of transmittal guaranteed if
required by the letter of transmittal, and
- mail or deliver the required documents to the exchange agent at its
address set forth in the letter of transmittal for receipt before the
expiration date.
In addition, either:
- certificates for old notes must be received by the exchange agent
along with the letter of transmittal;
- a timely confirmation of a book-entry transfer of old notes into the
exchange agent's account at DTC, pursuant to the procedure for
book-entry transfer described below, must be received by the exchange
agent before the expiration date; or
- you must comply with the procedures described below under
"-- Guaranteed Delivery Procedures."
If you do not withdraw your surrender of old notes before the expiration
date, it will indicate an agreement between you and us that you have agreed to
surrender the old notes, in accordance with the terms and conditions in the
letter of transmittal.
The method of delivery of old notes, the letter of transmittal, and all
other required documents to the exchange agent is at your election and risk.
Instead of delivery by mail, we recommend that you use an overnight or hand
delivery service, properly insured, with return receipt requested. In all cases,
you should allow sufficient time to assure delivery to the exchange agent before
the expiration date. Do not send any letter of transmittal or old notes to us.
You may request that your broker, dealer, commercial bank, trust company, or
nominee effect the above transactions for you.
If you are a beneficial owner of the old notes and you hold those old notes
through a broker, dealer, commercial bank, trust company, or other nominee and
you want to surrender your old notes, you should contact that intermediary
promptly and instruct it to surrender the old notes on your behalf.
28
Generally, an eligible institution must guarantee signatures on a letter of
transmittal unless:
- you tender your old notes as the registered holder, which term
includes any participant in DTC whose name appears on a security
listing as the owner of old notes, and the new notes issued in
exchange for your old notes are to be issued in your name and
delivered to you at your registered address appearing on the security
register for the old notes, or
- you surrender your old notes for the account of an eligible
institution.
An "eligible institution" is:
- a member firm of a registered national securities exchange or of the
National Association of Securities Dealers, Inc.,
- a commercial bank or trust company having an office or correspondent
in the United States, or
- an "eligible guarantor institution" as defined by Rule 17Ad-15 under
the Exchange Act.
In each instance, the entity must be a member of one of the signature
guarantee programs identified in the letter of transmittal.
If the new notes or unexchanged old notes are to be delivered to an address
other than that of the registered holder appearing on the security register for
the old notes, an eligible institution must guarantee the signature in the
letter of transmittal.
Your surrender will be deemed to have been received as of the date when:
- the exchange agent receives a properly completed and signed letter of
transmittal accompanied by the old notes, or a confirmation of
book-entry transfer of the old notes into the exchange agent's account
at DTC with an agent's message, or
- the exchange agent receives a notice of guaranteed delivery from an
eligible institution.
Issuances of new notes in exchange for old notes surrendered pursuant to a
notice of guaranteed delivery or letter to similar effect by an eligible
institution will be made only against submission of a duly signed letter of
transmittal, and any other required documents, and deposit of the surrendered
old notes, or confirmation of a book-entry transfer of the old notes into the
exchange agent's account at DTC pursuant to the book-entry procedures described
below.
We will make the determination regarding all questions relating to the
validity, form, eligibility, including time of receipt, acceptance, and
withdrawal of surrendered old notes, and our determination will be final and
binding on all parties.
We reserve the absolute right to reject any and all old notes improperly
surrendered. We will not accept any old notes if our acceptance of them would,
in the opinion of our counsel, be unlawful. We also reserve the absolute right
to waive any defects, irregularities, or conditions of surrender as to any
particular old note. Our interpretation of the terms and conditions of the
exchange offers, including the instructions in the letter of transmittal, will
be final and binding on all parties. Unless waived, you must cure any defects or
irregularities in connection with surrenders of old notes within the time we
determine. Although we intend to notify holders of defects or irregularities in
connection with surrenders of old notes, neither we, the exchange agent, nor
anyone else will incur any liability for failure to give that notice. Surrenders
of old notes will not be deemed to have been made until any defects or
irregularities have been cured or waived.
We have no current plan to acquire any old notes that are not surrendered
in the exchange offer or to file a registration statement to permit resales of
any old notes that are not surrendered pursuant to the exchange offer. We
reserve the right in our sole discretion to purchase or make
29
offers for any old notes that remain outstanding after the expiration date. To
the extent permitted by law, we also reserve the right to purchase old notes in
the open market, in privately negotiated transactions, or otherwise. The terms
of any future purchases or offers could differ from the terms of the exchange
offer.
Pursuant to the letter of transmittal, if you elect to surrender old notes
in exchange for new notes, you must exchange, assign, and transfer the old notes
to us and irrevocably constitute and appoint the exchange agent as your true and
lawful agent and attorney-in-fact with respect to the surrendered old notes,
with full power of substitution, among other things, to cause the old notes to
be assigned, transferred and exchanged. By executing the letter of transmittal,
you make the representations and warranties set forth below to us. By executing
the letter of transmittal you also promise, on our request, to execute and
deliver any additional documents that we consider necessary to complete the
transactions described in the letter of transmittal.
By executing the letter of transmittal and surrendering old notes in the
exchange offer, you will be representing to us that, among other things,
- you have full power and authority to tender, exchange, assign, and
transfer the old notes surrendered;
- we will acquire good title to the old notes being surrendered, free
and clear of all security interests, liens, restrictions, charges,
encumbrances, conditional sale agreements, or other obligations
relating to their sale or transfer, and not subject to any adverse
claim when we accept the old notes;
- you are acquiring the new notes in the ordinary course of your
business;
- you are not engaging in and do not intend to engage in a distribution
of the new notes;
- you have no arrangement or understanding with any person to
participate in the distribution of the new notes;
- you acknowledge and agree that if you are a broker-dealer registered
under the Exchange Act or you are participating in the exchange offers
for the purpose of distributing the new notes, you must comply with
the registration and prospectus delivery requirements of the
Securities Act in connection with a secondary resale of the new notes,
and that you cannot rely on the position of the SEC's staff set forth
in their no-action letters;
- you understand that a secondary resale transaction described above and
any resales of new notes obtained by you in exchange for old notes
acquired by you directly from us should be covered by an effective
registration statement containing the selling security holder
information required by Item 507 or 508, as applicable, of Regulation
S-K of the SEC; and
- you are not an "affiliate," as defined in Rule 405 under the
Securities Act, of us or, if you are an "affiliate," that you will
comply with the registration and prospectus delivery requirements of
the Securities Act to the extent applicable.
If you are a broker-dealer and you will receive new notes for your own
account in exchange for old notes that you acquired as a result of market-making
activities or other trading activities, you will be required to acknowledge in
the letter of transmittal that you will deliver a prospectus in connection with
any resale of the new notes. See "Plan of Distribution" in this prospectus.
Participation in the exchange offer is voluntary. You are urged to consult
your financial advisors in making your decision on whether to participate in the
exchange offer.
30
RETURN OF OLD NOTES
If any old notes are not accepted for any reason described in this
prospectus, or if old notes are withdrawn or are submitted for a greater
principal amount than you want to exchange, the exchange agent will return the
unaccepted, withdrawn, or non-exchanged old notes to you or, in the case of old
notes surrendered by book-entry transfer, into an account for your benefit at
DTC, unless otherwise provided in the letter of transmittal. The old notes will
be credited to an account maintained with DTC as promptly as practicable.
BOOK ENTRY TRANSFER
The exchange agent will make a request to establish an account with respect
to the old notes at DTC for purposes of the exchange offer within two business
days after the date of this prospectus. Any financial institution that is a
participant in DTC's system may make book-entry delivery of old notes by causing
DTC to transfer the old notes into the exchange agent's account at DTC in
accordance with DTC's procedures for transfer. To effectively tender notes
through DTC, the financial institution that is a participant in DTC will
electronically transmit its acceptance through the Automatic Transfer Offer
Program. DTC will then edit and verify the acceptance and send an agent's
message to the exchange agent for its acceptance. An agent's message is a
message transmitted by DTC to the exchange agent stating that DTC has received
an express acknowledgment from the participant in DTC tendering the old notes
that the participant has received and agrees to execute and be bound by the
terms of the letter of transmittal, and that we may enforce this agreement
against the participant.
A delivery of old notes through a book-entry transfer into the exchange
agent's account at DTC will only be effective if an agent's message or the
letter of transmittal with any required signature guarantees and any other
required documents is transmitted to and received by the exchange agent at its
address set forth in the letter of transmittal for receipt before the expiration
date unless the guaranteed delivery procedures described below are complied
with. Delivery of documents to DTC does not constitute delivery to the exchange
agent.
GUARANTEED DELIVERY PROCEDURES
If you wish to surrender your old notes and (1) your old notes are not
immediately available so that you can meet the expiration date deadline, (2) you
cannot deliver your old notes or other required documents to the exchange agent
before the expiration date, or (3) the procedure for book-entry transfer cannot
be completed on a timely basis, you may nonetheless participate in the exchange
offer if:
- you surrender your notes through an eligible institution;
- before the expiration date, the exchange agent receives from the
eligible institution a properly completed and duly executed notice of
guaranteed delivery substantially in the form provided by us, by mail
or hand delivery, showing the name and address of the holder, the
name(s) in which the old notes are registered, the certificate
number(s) of the old notes, if applicable, and the principal amount of
old notes surrendered; the notice of guaranteed delivery must state
that the surrender is being made by the notice of guaranteed delivery
and guaranteeing that, within five New York Stock Exchange trading
days after the expiration date, the letter of transmittal, together
with the certificate(s) representing the old notes, in proper form for
transfer, or a book-entry confirmation with an agent's message, as the
case may be, and any other required documents, will be delivered by
the eligible institution to the exchange agent; and
- the properly executed letter of transmittal, as well as the
certificate(s) representing all surrendered old notes, in proper form
for transfer, or a book-entry confirmation, as the case may be, and
all other documents required by the letter of transmittal are received
31
by the exchange agent within five New York Stock Exchange trading days
after the expiration date.
Unless old notes are surrendered by the above-described method and
deposited with the exchange agent within the time period set forth above, we
may, at our option, reject the surrender. The exchange agent will send you a
notice of guaranteed delivery upon your request if you want to surrender your
old notes according to the guaranteed delivery procedures described above.
WITHDRAWALS OF TENDERS OF OLD NOTES
You may withdraw your surrender of old notes at any time before the
expiration date.
To withdraw old notes surrendered in the exchange offer, the exchange agent
must receive a written notice of withdrawal at its address set forth below
before the expiration date. Any notice of withdrawal must:
- specify the name of the person having deposited the old notes to be
withdrawn,
- identify the old notes to be withdrawn, including the certificate
number or numbers, if applicable, and principal amount of the old
notes,
- contain a statement that the holder is withdrawing the election to
have the old notes exchanged,
- be signed by the holder in the same manner as the original signature
on the letter of transmittal used to surrender the old notes, and
- specify the name in which any old notes are to be registered, if
different from that of the registered holder of the old notes and,
unless the old notes were tendered for the account of an eligible
institution, the signatures on the notice of withdrawal must be
guaranteed by an eligible institution. If old notes have been
surrendered pursuant to the procedure for book-entry transfer, any
notice of withdrawal must specify the name and number of the account
at DTC.
We, in our sole discretion, will make the final determination on all
questions regarding the validity, form, eligibility, and time of receipt of
notices of withdrawal, and our determination will bind all parties. Any old
notes withdrawn will be deemed not to have been validly tendered for purposes of
the exchange offer and no new notes will be issued in exchange unless the old
notes so withdrawn are validly tendered again. Properly withdrawn old notes may
be tendered again by following one of the procedures described above under
"-- Procedures for Tendering Old Notes" at any time before the expiration date.
Any old notes that are not accepted for exchange will be returned at no cost to
the holder or, in the case of old notes surrendered by book-entry transfer, into
an account for your benefit at DTC pursuant to the book-entry transfer
procedures described above, promptly after withdrawal, rejection of surrender or
termination of the exchange offer.
ADDITIONAL OBLIGATIONS
We may be required, under certain circumstances, to file a shelf
registration statement. See "Description of the New Notes -- Registration
Rights; Special Interest" in this prospectus. In any event, we are under a
continuing obligation, for a period of up to 180 days after the SEC declares the
registration statement of which this prospectus is a part effective, to keep the
registration statement effective, subject to our ability to suspend the
effectiveness of any registration statement as described in the registration
rights agreement.
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CONDITIONS OF THE EXCHANGE OFFER
Notwithstanding any other term of the exchange offer, or any extension of
the exchange offer, we do not have to accept for exchange, or exchange new notes
for, any old notes, and we may terminate the exchange offer before acceptance of
the old notes, if:
- any statute, rule, or regulation has been enacted or any action has
been taken or threatened by any court or governmental authority that,
in our reasonable judgment, seeks to or would prohibit, restrict, or
otherwise render consummation of the exchange offer illegal; or
- any change, or any development that would cause a change, in our
business or financial affairs has occurred that, in our reasonable
judgment, might materially impair our ability to proceed with the
exchange offer or that would materially impair the contemplated
benefits to us of the exchange offer (these benefits being the
satisfaction of our obligations under the registration rights
agreement to issue and exchange the new notes for the old notes as
described above under "-- Purpose and Effect of the Exchange Offers");
or
- a change occurs in the current interpretations by the staff of the SEC
that, in our reasonable judgment, might materially impair our ability
to proceed with the exchange offer.
If we, in our reasonable discretion, determine that any of the above
conditions is not satisfied, we may:
- refuse to accept any old notes and return all surrendered old notes to
the surrendering holders,
- extend the exchange offer and retain all old notes surrendered before
the expiration date, subject to the holders' right to withdraw the
surrender of the old notes, or
- waive any unsatisfied conditions regarding the exchange offer and
accept all properly surrendered old notes that have not been
withdrawn. If this waiver constitutes a material change to the
exchange offer, we will promptly disclose the waiver in a manner
reasonably calculated to inform the holder of old notes of the waiver,
and we will extend the exchange offer for at least five business days
if the exchange offer would have otherwise expired.
All conditions of the exchange offer will be satisfied or waived prior to
the expiration of the exchange offer.
EXCHANGE AGENT
We have appointed The Bank of New York as the exchange agent for the
exchange offer. Questions and requests for assistance, requests for additional
copies of this prospectus or of the letter of transmittal and requests for
notices of guaranteed delivery should be directed to the exchange agent at the
following address:
The Bank of New York
101 Barclay Street
Reorganization Unit - Floor 7E
New York, New York 10286
Att: Duong Nguyen
Tel: (212) 815-3687
Fax: (212) 298-1915
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FEES AND EXPENSES
We will bear the expenses of soliciting tenders. The principal solicitation
is being made by mail; however, additional solicitation may be made by
facsimile, telephone, or in person by our officers and regular employees or by
officers and employees of our affiliates. No additional compensation will be
paid to any officers and employees who engage in soliciting tenders.
We have not retained any dealer-manager or other soliciting agent for the
exchange offers and will not make any payments to brokers, dealers, or others
soliciting acceptance of the exchange offer. We will, however, pay the exchange
agent reasonable and customary fees for its services and will reimburse it for
related, reasonable out-of-pocket expenses. We may also reimburse brokerage
houses and other custodians, nominees, and fiduciaries for reasonable out-
of-pocket expenses they incur in forwarding copies of this prospectus, the
letter of transmittal and related documents.
We will pay all expenses incurred in connection with the performance of our
obligations in the exchange offer, including registration fees, fees and
expenses of the exchange agent, the transfer agent and registrar, and accounting
and legal fees and printing costs, among others. The expenses are estimated in
the aggregate to be approximately $300,000.
We will pay all transfer taxes, if any, applicable to the exchange of the
old notes. If, however, new notes, or old notes for principal amounts not
surrendered or accepted for exchange, are to be delivered to, or are to be
issued in the name of, any person other than the registered holder of the old
notes surrendered, or if a transfer tax is imposed for any reason other than the
exchange, then the amount of any transfer taxes will be payable by the person
surrendering the notes. If you do not submit satisfactory evidence of payment of
those taxes or exemption from payment of those taxes with the letter of
transmittal, the amount of those transfer taxes will be billed directly to you.
CONSEQUENCES OF FAILURE TO EXCHANGE
Old notes that are not exchanged will remain "restricted securities" within
the meaning of Rule 144(a)(3) of the Securities Act. Accordingly, they may not
be offered, sold, pledged or otherwise transferred except:
- to us or to any of our subsidiaries;
- inside the United States to a qualified institutional buyer in
compliance with Rule 144A under the Securities Act;
- inside the United States to an institutional accredited investor that,
before the transfer, furnishes to the trustee a signed letter
containing certain representations and agreements relating to the
restrictions on transfer of the old notes, the form of which you can
obtain from the trustee and, if such transfer is in respect of an
aggregate principal amount of old notes at the time of transfer of
less than $100,000, an opinion of counsel acceptable to us that the
transfer complies with the Securities Act;
- outside the United States in compliance with Rule 904 under the
Securities Act,
- pursuant to the exemption from registration provided by Rule 144 under
the Securities Act, if available; or
- pursuant to an effective registration statement under the Securities
Act.
The liquidity of the old notes could be adversely affected by the exchange
offer. See "Risk Factors -- Risks Related to Our Indebtedness and the
Notes -- An active trading market for the notes may not develop, which could
reduce their value" in this prospectus.
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ACCOUNTING TREATMENT
For accounting purposes, we will recognize no gain or loss as a result of
the exchange offer. We will amortize the expenses of the exchange offer and the
unamortized expenses related to the issuance of the old notes over the remaining
term of the notes.
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DESCRIPTION OF THE NEW NOTES
The form and terms of the new notes and the old notes are identical in all
material respects, except that transfer restrictions, penalty interest
provisions and registration rights applicable to the old notes do not apply to
the new notes. Unless otherwise specified or unless the context requires
otherwise, references in this section to the "notes" are references to the old
notes and to the new notes offered in the exchange offer. The old notes were,
and the new notes will be, issued under an indenture, dated as of December 11,
2003, between our company and The Bank of New York, as trustee. The indenture is
subject to and governed by the Trust Indenture Act of 1939. The following is a
summary of the material provisions of the indenture. It does not include all of
the provisions of the indenture. You should read the indenture, including the
definitions of certain terms contained therein and those terms made part of the
indenture by reference to the Trust Indenture Act, in its entirety for
provisions that may be important to you. The indenture has been incorporated by
reference as an exhibit to the registration statement of which this prospectus
is a part. You can find definitions of certain capitalized terms used in this
description in the indenture and below under "-- Certain Definitions." For
purposes of this Description of the New Notes, references to "Georgia-Pacific,"
"company," "we," "our" or "us" refer solely to Georgia-Pacific Corporation, and
not to any of Georgia-Pacific's subsidiaries.
The registered holder of a note will be treated as the owner of it for all
purposes. Only registered holders will have rights under the indenture.
BRIEF DESCRIPTION OF THE NOTES
THE NOTES
The notes will be:
- our general unsecured obligations;
- pari passu in right of payment with all of our existing and future
unsecured senior Indebtedness;
- effectively junior to our secured Indebtedness up to the value of
the collateral securing such Indebtedness;
- effectively junior to our debt that has been guaranteed by
subsidiaries with respect to the assets and earnings for those
subsidiaries;
- effectively junior to all existing and future indebtedness of our
subsidiaries and other liabilities of our subsidiaries, including
trade payables; and
- senior in right of payment to any of our future subordinated
indebtedness.
PRINCIPAL, MATURITY AND INTEREST
On December 11, 2003, Georgia-Pacific issued $500 million in aggregate
principal amount of old notes. Subject to compliance with certain of the
covenants in the agreements evidencing certain of our other indebtedness,
Georgia-Pacific may issue additional notes under the indenture from time to time
after the offering. The notes and any additional notes subsequently issued under
the indenture will be treated as a single class for all purposes under the
indenture, including, without limitation, waivers, amendments, redemptions and
offers to purchase. Georgia-Pacific will issue notes in denominations of $1,000
and integral multiples of $1,000. The notes will mature on January 15, 2024.
Interest on the notes will accrue at the rate of 8% per annum and will be
payable semi-annually in arrears on January 15 and July 15 of each year,
beginning on July 15, 2004. Georgia-Pacific will make each interest payment to
the holders of record on the immediately preceding January 1 and July 1.
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Interest on the notes will accrue from December 11, 2003 or, if interest
has already been paid, from the date it was most recently paid. Interest will be
computed on the basis of a 360-day year comprised of twelve 30-day months.
METHODS OF RECEIVING PAYMENTS ON THE NOTES
For so long as the notes remain in the form of global securities, we will
pay all principal, interest and premium, if any, on the notes to the depository
or its nominee as the registered holder of the global securities representing
the notes. All other payments on notes will be made at the office or agency of
the paying agent and registrar within the City and State of New York unless
Georgia-Pacific elects to make interest payments by check mailed to the holders
at their address set forth in the register of holders.
PAYING AGENT AND REGISTRAR FOR THE NOTES
The trustee will initially act as paying agent and registrar.
Georgia-Pacific may change the paying agent or registrar without prior notice to
the holders of the notes, and Georgia-Pacific or any of its Subsidiaries may act
as paying agent or registrar.
TRANSFER AND EXCHANGE
A holder may transfer or exchange notes in accordance with the indenture.
The registrar and the trustee may require a holder, among other things, to
furnish appropriate endorsements and transfer documents in connection with a
transfer of notes. Holders will be required to pay all taxes due on transfer.
Georgia-Pacific is not required to transfer or exchange any note selected for
redemption. Also, Georgia-Pacific is not required to transfer or exchange any
note for a period of 15 days before a selection of notes to be redeemed.
OPTIONAL REDEMPTION
We may at any time at its option redeem all or part of the notes upon not
less than 30 nor more than 60 days' prior notice at a redemption price equal to
the greater of (1) 100% of the principal amount of the notes being redeemed and
(2) as determined by the Quotation Agent, the sum of the present values of 100%
of the principal amount of the notes being redeemed, plus all scheduled payments
of interest on such notes to and including January 15, 2024 (but not including
accrued and unpaid interest to the redemption date), in each case discounted to
the redemption date on a semi-annual basis (assuming a 360-day year consisting
of twelve 30-day months) at the Adjusted Treasury Rate plus 50 basis points,
together in each case with accrued and unpaid interest and Special Interest, if
any, to the redemption date.
MANDATORY REDEMPTION
We are not required to make mandatory redemption or sinking fund payments
with respect to the notes.
CERTAIN COVENANTS
LIMITATION ON LIENS
We may not, nor may we permit any restricted subsidiary, as defined below,
to, create or assume any mortgage, security interest, pledge or lien,
collectively, a "lien," upon any principal property, as defined below, or upon
the shares of stock or indebtedness of any restricted subsidiary, without
equally and ratably securing the notes. However, this restriction does not apply
to:
(1) liens on any principal property existing at the time of its
acquisition and liens created contemporaneously with or within 120 days
after (or created pursuant to firm
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commitment financing arrangements obtained within that period) the
completion of the acquisition, improvement or construction of such property
to secure payment of the purchase price of such property or the cost of
such construction or improvement;
(2) liens on property or shares of stock or indebtedness of a
corporation existing at the time it is merged into or its assets are
acquired by us or a restricted subsidiary;
(3) liens on property or shares of stock or indebtedness of a
corporation existing at the time it becomes a restricted subsidiary;
(4) liens securing debts of a restricted subsidiary to us and/or one or
more of our subsidiaries;
(5) liens in favor of a governmental unit to secure payments under any
contract or statute, or to secure debts incurred in financing the
acquisition of or improvements to property subject thereto;
(6) liens on timberlands in connection with an arrangement under which
we and/or one or more restricted subsidiaries are obligated to cut or pay
for timber in order to provide the lien holder with a specified amount of
money, however determined;
(7) liens created or assumed in the ordinary course of the business of
exploring for, developing or producing oil, gas or other minerals
(including borrowings in connection therewith) on, or on any interest in,
or on any proceeds from the sale of, property acquired for such purposes,
production therefrom (including the proceeds thereof), or material or
equipment located thereon;
(8) liens in favor of any customer arising in respect of and not
exceeding the amount of performance deposits and partial, progress, advance
or other payments by that customer for goods produced or services rendered
to that customer in the ordinary course of business;
(9) liens to extend, renew or replace any liens referred to in clauses
(1) through (8) or this clause (9) or any lien existing on the date of the
indenture;
(10) mechanics', workmen's and similar liens;
(11) liens arising out of litigation or judgments being contested; and
(12) liens for taxes not yet due, or being contested, landlords' liens,
tenants' rights under leases, easements, and similar liens not impairing
the use or value of the property involved.
See "-- Exemption from Limitations on Liens and Sale and Leaseback" below.
LIMITATION ON SALE AND LEASEBACK
Transactions involving sale and leaseback by us or one or more restricted
subsidiaries of any principal property, except for leases not exceeding three
years, are prohibited unless:
(1) we and/or such restricted subsidiary or subsidiaries would be
entitled to incur indebtedness secured by a lien on that property without
securing the notes;
(2) an amount equal to the value of the sale and leaseback is applied
within 120 days to:
- the voluntary retirement of indebtedness for borrowed money of
Georgia-Pacific or any restricted subsidiary maturing more than
one year after the date incurred and which is senior to or equal
with the notes in right of payment ("funded debt"); or
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- the purchase of other property that will constitute principal
property having a value at least equal to the net proceeds of the
sale; or
(3) we and/or a restricted subsidiary shall deliver to the trustee for
cancellation funded debt (including the notes in an aggregate principal
amount at least equal to the net proceeds of the sale).
See "-- Exemption from Limitations on Liens and Sale and Leaseback."
EXEMPTION FROM LIMITATIONS ON LIENS AND SALE AND LEASEBACK
We and/or one or more restricted subsidiaries are permitted to create or
assume liens or enter into sale and leaseback transactions that would not
otherwise be permitted under the limitations described under "-- Limitation on
Liens" and "-- Limitation on Sale and Leaseback", provided that the sum of the
aggregate amount of all indebtedness secured by these liens (not including
indebtedness otherwise permitted under the exceptions described in clauses (1)
through (12) under "-- Limitation on Liens") and the value of all of these sale
and leaseback transactions (not including those that are for less than three
years or in respect of which indebtedness is retired or property is purchased or
notes are delivered, as described under "-- Limitation on Sale and Leaseback")
will not exceed 5% of the net tangible assets, as defined below, of us and our
restricted subsidiaries.
MERGER, SALE AND LEASE
Under the indenture, we may consolidate with or merge into any other
corporation or sell, convey or lease all or substantially all of our properties
and assets to any person, without the consent of the holders of any of the
outstanding notes, provided that:
- any successor or purchaser will expressly assume the due and punctual
payment of the principal of and interest on all the notes and the due
and punctual performance and observance of all of the covenants and
conditions of the indenture to be performed by us under a supplemental
indenture; and
- we have delivered to the trustee an opinion of counsel stating
compliance with these provisions.
- immediately after the transaction, no event of default, and no event
that, after notice or lapse of time or both, would become an event of
default, occurs and continues; and
- certain other conditions are met.
If upon any merger of us with or into any other corporation, or upon any
sale or lease of all or substantially all of our properties, any principal
property of Georgia-Pacific or a restricted subsidiary or any shares of stock or
indebtedness of a restricted subsidiary owned immediately prior to such merger,
sale or lease would, thereupon, become subject to any lien other than liens
permitted, without securing the notes, prior to such event, we will secure the
notes equally with all of our other obligations so secured, by a lien on such
principal property, shares or indebtedness prior to all liens other than any
liens existing up to that time thereon and liens so permitted by those sections
of the indenture.
EVENTS OF DEFAULT
The indenture provides that the following events constitute Events of
Default:
- failure to pay any interest or Special Interest, if any, upon the
notes when due, and that failure continues for 30 days;
- failure to pay the principal of, or premium, if any, on, the notes
when due at its maturity or upon acceleration;
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- failure to perform any other covenants or warranties in the indenture
and such failure continues for 90 days after written notice as
provided in the indenture; and
- certain events of bankruptcy, insolvency or reorganization of
Georgia-Pacific.
If an Event of Default with respect to the notes at the time outstanding
occurs and is continuing, either the trustee or the holders of at least 25% in
aggregate principal amount of outstanding notes may declare the principal amount
of all notes due and payable immediately. At any time after a declaration of
acceleration with respect to the notes has been made but, before a judgment or
decree based on acceleration has been obtained, the holders of a majority in
aggregate principal amount of the outstanding notes may, under certain
circumstances, rescind and annul that acceleration if all events of default,
other than the non-payment of accelerated principal (or specified portion
thereof) with respect to the notes, have been cured or waived as provided in the
indenture.
Holders of the notes may not enforce the indenture or notes except as
provided in the indenture. Subject to certain limitations, holders of a majority
in principal amount of the then outstanding notes may direct the trustee in its
exercise of any trust or power. The trustee may withhold from holders of the
notes notice of any continuing Default or Event of Default if it determines that
withholding notice is in their interest, except a Default or Event of Default
relating to the payment of principal, interest or Special Interest.
The holders of a majority in aggregate principal amount of the notes then
outstanding by notice to the trustee may on behalf of the holders of the notes
waive any existing Default or Event of Default and its consequences under the
indenture except a continuing Default or Event of Default in the payment of
interest or premium and Special Interest on, or the principal of, the notes.
Georgia-Pacific is required to deliver to the trustee annually a statement
regarding compliance with the indenture. Upon becoming aware of any Default or
Event of Default, Georgia-Pacific is required to deliver to the trustee a
statement specifying such Default or Event of Default.
NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS
No director, officer, employee, incorporator or stockholder of
Georgia-Pacific, as such, will have any liability for any obligations of
Georgia-Pacific under the notes, the indenture, or for any claim based on, in
respect of, or by reason of, such obligations or their creation. Each holder of
notes by accepting a note waives and releases all such liability. The waiver and
release are part of the consideration for issuance of the notes. The waiver may
not be effective to waive liabilities under the federal securities laws.
LEGAL DEFEASANCE AND COVENANT DEFEASANCE
Georgia-Pacific may, at its option and at any time, elect to have all of
its obligations discharged with respect to the notes except for:
(1) the rights of holders of outstanding notes to receive payments in
respect of the principal of, or interest or premium and Special Interest,
if any, on such notes when such payments are due from the trust referred to
below;
(2) Georgia-Pacific's obligations with respect to the notes concerning
issuing temporary notes, registration of notes, mutilated, destroyed, lost
or stolen notes and the maintenance of an office or agency for payment and
money for security payments held in trust;
(3) the rights, powers, trusts, duties and immunities of the trustee,
and Georgia-Pacific's obligations in connection therewith; and
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(4) the Legal Defeasance provisions of the indenture.
In addition, Georgia-Pacific may, at its option and at any time, elect to
have the obligations of Georgia-Pacific released with respect to certain
covenants in the indenture ("Covenant Defeasance") and thereafter any omission
to comply with those covenants will not constitute a Default or Event of Default
with respect to the notes. In the event Covenant Defeasance occurs, certain
events (not including non-payment, bankruptcy, receivership, rehabilitation and
insolvency events) described under "-- Events of Default" will no longer
constitute Events of Default with respect to the notes.
In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) Georgia-Pacific must irrevocably deposit with the trustee, in
trust, for the benefit of the holders of the notes, cash in U.S. dollars,
non-callable government securities, or a combination of cash in U.S.
dollars and non-callable government securities, in amounts as will be
sufficient, in the opinion of a nationally recognized firm of independent
public accountants, to pay the principal of, or interest and premium and
Special Interest, if any, on the outstanding notes on the stated maturity
or on the redemption date, as the case may be, and Georgia-Pacific must
specify whether such notes are being defeased to maturity or to a
particular redemption date;
(2) in the case of Legal Defeasance, Georgia-Pacific has delivered to
the trustee an opinion of counsel reasonably acceptable to the trustee
confirming that (a) Georgia-Pacific has received from, or there has been
published by, the Internal Revenue Service a ruling or (b) since the date
of the indenture, there has been a change in the applicable federal income
tax law, in either case to the effect that, and based thereon such opinion
of counsel will confirm that, the holders of the outstanding notes will not
recognize income, gain or loss for federal income tax purposes as a result
of such Legal Defeasance and will be subject to federal income tax on the
same amounts, in the same manner and at the same times as would have been
the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, Georgia-Pacific has delivered
to the trustee an opinion of counsel reasonably acceptable to the trustee
confirming that the holders of the outstanding notes will not recognize
income, gain or loss for federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income tax on the same
amounts, in the same manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred;
(4) no Default or Event of Default has occurred and is continuing on
the date of such deposit under the indenture (other than a Default or Event
of Default resulting from the borrowing of funds to be applied to such
deposit);
(5) such Legal Defeasance or Covenant Defeasance will not result in a
breach or violation of, or constitute a default under any material
agreement or instrument (other than the indenture) to which Georgia-Pacific
or any of its restricted subsidiaries is a party or by which
Georgia-Pacific or any of its restricted subsidiaries is bound;
(6) Georgia-Pacific must deliver to the trustee an officers'
certificate stating that the deposit was not made by Georgia-Pacific with
the intent of preferring the holders of notes being defeased over the other
creditors of Georgia-Pacific with the intent of defeating, hindering,
delaying or defrauding creditors of Georgia-Pacific or others; and
(7) Georgia-Pacific must deliver to the trustee an officers'
certificate and an opinion of counsel, each stating that all conditions
precedent relating to the Legal Defeasance or the Covenant Defeasance have
been complied with.
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AMENDMENT, SUPPLEMENT AND WAIVER
Except as provided in the next two succeeding paragraphs, the notes and the
indenture may be amended or supplemented with the consent of the holders of at
least a majority in principal amount of the notes then outstanding (including,
without limitation, consents obtained in connection with a purchase of, or
tender offer or exchange offer for, notes), and any existing default or
compliance with any provision of the notes and the indenture may be waived with
the consent of the holders of a majority in principal amount of the then
outstanding notes (including, without limitation, consents obtained in
connection with a purchase of, or tender offer or exchange offer for, notes).
With respect to the notes, without the consent of each holder affected, an
amendment or waiver may not (with respect to any notes held by a non-consenting
holder):
(1) reduce the principal amount of such notes whose holders must
consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any such
note or alter the provisions with respect to the redemption of such notes;
(3) reduce the rate of or change the time for payment of interest on
any such note;
(4) waive a Default or Event of Default in the payment of principal of,
or interest or premium, or Special Interest, if any, on such notes (except
a rescission of acceleration of such notes by the holders of at least a
majority in aggregate principal amount of the notes, and a waiver of the
payment default that resulted from such acceleration);
(5) make any such note payable in money other than that stated in the
notes;
(6) make any change in the provisions of the indenture relating to
waivers of past Defaults or the rights of holders of the notes to receive
payments of principal of, or interest or premium or Special Interest, if
any, on the notes;
(7) waive a redemption payment with respect to any such note; or
(8) make any change in the preceding amendment and waiver provisions.
With respect to the notes, notwithstanding the preceding paragraphs,
without the consent of any holder of such notes, Georgia-Pacific and the trustee
may amend or supplement the indenture or the notes:
(1) to cure any ambiguity, defect, omission or inconsistency;
(2) to provide for uncertificated notes in addition to or in place of
certificated notes;
(3) to provide for the assumption of Georgia-Pacific's obligations to
holders of such notes in the case of a merger or consolidation or sale of
all or substantially all of Georgia-Pacific's assets;
(4) to make any change that would provide any additional rights or
benefits to the holders of such notes or that does not adversely affect the
legal rights under the indenture of any such holder;
(5) to comply with requirements of the SEC in order to effect or
maintain the qualification of the indenture under the Trust Indenture Act;
or
(6) to provide for the issuance of additional notes in accordance with
the limitations set forth in the indenture.
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SATISFACTION AND DISCHARGE
The indenture will be discharged and will cease to be of further effect as
to all notes issued thereunder, when:
(1) either:
(a) all notes that have been authenticated, except lost, stolen
or destroyed notes that have been replaced or paid and notes for whose
payment money has been deposited in trust and thereafter repaid to
Georgia-Pacific, have been delivered to the trustee for cancellation;
or
(b) all notes that have not been delivered to the trustee for
cancellation have become due and payable by reason of the mailing of a
notice of redemption or otherwise or will become due and payable within
one year and Georgia-Pacific has irrevocably deposited or caused to be
deposited with the trustee as trust funds in trust solely for the
benefit of the holders, cash in U.S. dollars, non-callable government
securities, or a combination of cash in U.S. dollars and non-callable
government securities, in amounts as will be sufficient without
consideration of any reinvestment of interest, to pay and discharge the
entire indebtedness on the notes not delivered to the trustee for
cancellation for principal, premium and Special Interest, if any, and
accrued interest to the date of maturity or redemption;
(2) no Default or Event of Default has occurred and is continuing on
the date of the deposit or will occur as a result of the deposit and the
deposit will not result in a breach or violation of, or constitute a
default under, any other instrument to which Georgia-Pacific is a party or
by which Georgia-Pacific is bound;
(3) Georgia-Pacific has paid or caused to be paid all sums payable by
it under the indenture; and
(4) Georgia-Pacific has delivered irrevocable instructions to the
trustee under the indenture to apply the deposited money toward the payment
of the notes at maturity or the redemption date, as the case may be.
In addition, Georgia-Pacific must deliver an officers' certificate and an
opinion of counsel to the trustee stating that all conditions precedent to
satisfaction and discharge have been satisfied.
CONCERNING THE TRUSTEE
If the trustee becomes a creditor of Georgia-Pacific, the indenture limits
its right to obtain payment of claims in certain cases, or to realize on certain
property received in respect of any such claim as security or otherwise. The
trustee will be permitted to engage in other transactions; however, if it
acquires any conflicting interest it must eliminate such conflict within 90
days, apply to the SEC for permission to continue, or resign.
The holders of a majority in principal amount of the then outstanding notes
will have the right to direct the time, method and place of conducting any
proceeding for exercising any remedy available to the trustee, subject to
certain exceptions. The indenture provides that in case an Event of Default
occurs and is continuing, the trustee will be required, in the exercise of its
power, to use the degree of care of a prudent man in the conduct of his own
affairs. Subject to such provisions, the trustee will be under no obligation to
exercise any of its rights or powers under the indenture at the request of any
holder of notes unless such holder has offered to the trustee security and
indemnity satisfactory to it against any loss, liability or expense.
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ADDITIONAL INFORMATION
Anyone who receives this prospectus may obtain a copy of the indenture and
the registration rights agreement without charge by following the instructions
under the section "Where You Can Find More Information" in this prospectus.
CERTAIN DEFINITIONS
The following terms are defined in more detail in the indenture.
"Adjusted Treasury Rate" means, with respect to any redemption date, the
rate per annum equal to the semi-annual equivalent yield to maturity of the
Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue
(expressed as a percentage of its principal amount) equal to the Comparable
Treasury Price for such redemption date.
"Comparable Treasury Issue" means the U.S. Treasury security selected by
the Quotation Agent as having a maturity comparable to the remaining term of the
notes being redeemed that would be utilized, at the time of selection and in
accordance with customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the remaining term of the notes.
"Comparable Treasury Price" means, with respect to any redemption date:
(1) the average of the bid and asked prices for the Comparable Treasury
Issue (expressed in each case as a percentage of its principal amount) on
the third Business Day preceding such redemption date, as set forth in the
daily statistical release (or any successor release) published by the
Federal Reserve Bank of New York and designated "Composite 3:30 p.m.
Quotations for U.S. Government Securities"; or
(2) if such release (or any successor release) is not published or does
not contain such prices on such Business Day, (a) the average of the
Reference Treasury Dealer Quotations for such redemption date, after
excluding the highest and lowest of such Reference Treasury Dealer
Quotations, or (b) if the Quotation Agent obtains fewer than three such
Reference Treasury Dealer Quotations, the average of all such Quotations.
"Default" means any event that is, or with the passage of time or the
giving of notice or both would be, an Event of Default.
"Net Tangible Assets" means, at any date, the aggregate amount of assets
(less applicable reserves and other properly deductible items) after deducting
therefrom (1) all current liabilities, (2) any item representing investments, as
defined in the indenture, in Subsidiaries that are not Restricted Subsidiaries,
as defined in the indenture, and (3) all goodwill, trade names, trademarks,
patents, unamortized debt discount and expense and other like intangibles, all
of the foregoing as set forth on the most recent consolidated balance sheet of
Georgia-Pacific and computed in accordance with generally accepted accounting
principles.
"Principal Property" means any mill, manufacturing plant or facility or
timberlands owned by us or one or more restricted subsidiaries and located
within the continental United States, but does not include any such mill, plant,
facility or timberlands which are acquired after the date of the indenture for
the disposal of solid waste or control or abatement of atmospheric pollutants or
contaminants, or water, noise or other pollutants, or which in the opinion of
our board of directors is not of material importance to our total business and
our restricted subsidiaries as an entirety, and does not include timberlands
designated by our board of directors as being held primarily for development or
sale, or minerals or mineral rights.
"Quotation Agent" means the Reference Treasury Dealer appointed by the
trustee to act as the Quotation Agent after consultation with Georgia-Pacific.
44
"Reference Treasury Dealer" means any of Citigroup Global Markets Inc.,
Deutsche Bank Securities Inc. and UBS Securities LLC and their respective
successors; provided, however, that if any of the foregoing shall cease to be a
primary U.S. Government securities dealer in New York City (a "Primary Treasury
Dealer"), Georgia-Pacific shall substitute therefor another Primary Treasury
Dealer.
"Reference Treasury Dealer Quotations" means, with respect to each
Reference Treasury Dealer and any redemption date, the average, as determined by
the trustee, of the bid and asked prices for the Comparable Treasury Issue
(expressed in each case as a percentage of its principal amount) quoted in
writing to the trustee by such Reference Treasury Dealer at 5:00 pm on the third
business day preceding such redemption date.
"Restricted Subsidiary" means a subsidiary substantially all of the
property of which is located within the continental United States and which
itself, or with us or one or more other restricted subsidiaries, owns a
principal property.
"Special Interest" means interest payable on the notes in the event of a
registration default, the amount of which shall be determined as provided above
under the caption "-- Registration Rights; Special Interest."
"Subsidiary" means any corporation a majority of the outstanding voting
stock of which is owned or controlled by us or one or more subsidiaries and
which is consolidated in our accounts.
BOOK-ENTRY, DELIVERY AND FORM
Except as set forth below, notes will be issued in registered, global form
in minimum denominations of $1,000 and integral multiples of $1,000 in excess of
$1,000. Notes will be issued at the closing of this exchange offer only against
exchange of old notes in immediately available funds.
The notes initially will be represented by two or more notes in registered,
global form without interest coupons, collectively, the Global Notes. The Global
Notes will be deposited upon issuance with the trustee as custodian for The
Depository Trust Company, or DTC, in New York, New York, and registered in the
name of DTC or its nominee, in each case for credit to an account of a direct or
indirect participant in DTC as described below.
Except as set forth below, the Global Notes may be transferred, in whole
and not in part, only to another nominee of DTC or to a successor of DTC or its
nominee. Beneficial interests in the Global Notes may not be exchanged for notes
in certificated form except in the limited circumstances described below. See
the information set forth below under "-- Exchange of Global Notes for
Certificated Notes." Except in the limited circumstances described below, owners
of beneficial interests in the Global Notes will not be entitled to receive
physical delivery of notes in certificated form.
DEPOSITORY PROCEDURES
The following description of the operations and procedures of DTC are
provided solely as a matter of convenience. These operations and procedures are
solely within the control of DTC and are subject to changes by them.
Georgia-Pacific takes no responsibility for these operations and procedures and
urges investors to contact DTC or their participants directly to discuss these
matters.
DTC has advised us that DTC is a limited-purpose trust company created to
hold securities for its participating organizations (collectively, the
"Participants") and to facilitate the clearance and settlement of transactions
in those securities between Participants through electronic book-entry changes
in accounts of its Participants. The Participants include securities brokers and
45
dealers, banks, trust companies, clearing corporations and certain other
organizations. Access to DTC's system is also available to other entities such
as banks, brokers, dealers and trust companies that clear through or maintain a
custodial relationship with a Participant, either directly or indirectly
(collectively, the "Indirect Participants"). Persons who are not Participants
may beneficially own securities held by or on behalf of DTC only through the
Participants or the Indirect Participants. The ownership interests in, and
transfers of ownership interests in, each security held by or on behalf of DTC
are recorded on the records of the Participants and Indirect Participants.
DTC has also advised us that, pursuant to procedures established by it:
(1) upon deposit of the Global Notes, DTC will credit the accounts of
Participants with portions of the principal amount of the Global Notes; and
(2) ownership of these interests in the Global Notes will be shown on,
and the transfer of ownership of these interests will be effected only
through, records maintained by DTC (with respect to the Participants) or by
the Participants and the Indirect Participants (with respect to other
owners of beneficial interest in the Global Notes).
Investors in the Global Notes who are Participants in DTC's system may hold
their interests therein directly through DTC. Investors in the Global Notes who
are not Participants may hold their interests therein indirectly through
organizations which are Participants in such system. The laws of some states
require that certain Persons take physical delivery in definitive form of
securities that they own. Consequently, the ability to transfer beneficial
interests in a Global Note to such Persons will be limited to that extent.
Because DTC can act only on behalf of Participants, which in turn act on behalf
of Indirect Participants, the ability of a Person having beneficial interests in
a Global Note to pledge such interests to Persons that do not participate in the
DTC system, or otherwise take actions in respect of such interests, may be
affected by the lack of a physical certificate evidencing such interests.
EXCEPT AS DESCRIBED BELOW, OWNERS OF INTERESTS IN THE GLOBAL NOTES WILL NOT
HAVE NOTES REGISTERED IN THEIR NAMES, WILL NOT RECEIVE PHYSICAL DELIVERY OF
NOTES IN CERTIFICATED FORM AND WILL NOT BE CONSIDERED THE REGISTERED OWNERS OR
"HOLDERS" THEREOF UNDER THE INDENTURE FOR ANY PURPOSE.
Payments in respect of the principal of, and interest and premium and
Special Interest, if any, on a Global Note registered in the name of DTC or its
nominee will be payable to DTC in its capacity as the registered holder under
the indenture. Under the terms of the indenture, Georgia-Pacific and the trustee
will treat the Persons in whose names the notes, including the Global Notes, are
registered as the owners of the notes for the purpose of receiving payments and
for all other purposes. Consequently, neither Georgia-Pacific, the trustee nor
any agent of Georgia-Pacific or the trustee has or will have any responsibility
or liability for:
(1) any aspect of DTC's records or any Participant's or Indirect
Participant's records relating to or payments made on account of beneficial
ownership interest in the Global Notes or for maintaining, supervising or
reviewing any of DTC's records or any Participant's or Indirect
Participant's records relating to the beneficial ownership interests in the
Global Notes; or
(2) any other matter relating to the actions and practices of DTC or
any of its Participants or Indirect Participants.
DTC has advised us that its current practice, upon receipt of any payment
in respect of securities such as the notes (including principal and interest),
is to credit the accounts of the relevant Participants with the payment on the
payment date unless DTC has reason to believe it will not receive payment on
such payment date. Each relevant Participant is credited with an amount
proportionate to its beneficial ownership of an interest in the principal amount
of the
46
relevant security as shown on the records of DTC. Payments by the Participants
and the Indirect Participants to the beneficial owners of notes will be governed
by standing instructions and customary practices and will be the responsibility
of the Participants or the Indirect Participants and will not be the
responsibility of DTC, the trustee or Georgia-Pacific. Neither Georgia-Pacific
nor the trustee will be liable for any delay by DTC or any of its Participants
in identifying the beneficial owners of the notes, and Georgia-Pacific and the
trustee may conclusively rely on and will be protected in relying on
instructions from DTC or its nominee for all purposes.
Transfers between Participants in DTC will be effected in accordance with
DTC's procedures, and will be settled in same-day funds.
DTC has advised us that it will take any action permitted to be taken by a
holder of notes only at the direction of one or more Participants to whose
account DTC has credited the interests in the Global Notes and only in respect
of such portion of the aggregate principal amount of the notes as to which such
Participant or Participants has or have given such direction. However, if there
is an Event of Default under the notes, DTC reserves the right to exchange the
Global Notes for legended notes in certificated form, and to distribute such
notes to its Participants.
Although DTC has agreed to the foregoing procedures to facilitate transfers
of interests in the Global Notes among participants in DTC, it is under no
obligation to perform or to continue to perform such procedures, and may
discontinue such procedures at any time. Neither Georgia-Pacific nor the trustee
nor any of their respective agents will have any responsibility for the
performance by DTC or its respective participants or indirect participants of
their respective obligations under the rules and procedures governing their
operations.
EXCHANGE OF GLOBAL NOTES FOR CERTIFICATED NOTES
A Global Note is exchangeable for definitive notes in registered
certificated form, Certificated Notes, if:
(1) DTC (a) notifies Georgia-Pacific that it is unwilling or unable to
continue as depository for the Global Notes and Georgia-Pacific fails to
appoint a successor depository or (b) has ceased to be a clearing agency
registered under the Exchange Act;
(2) Georgia-Pacific, at its option, notifies the trustee in writing
that it elects to cause the issuance of the Certificated Notes; or
(3) there has occurred and is continuing a Default or Event of Default
with respect to the notes.
In addition, beneficial interests in a Global Note may be exchanged for
Certificated Notes upon prior written notice given to the trustee by or on
behalf of DTC in accordance with the indenture. In all cases, Certificated Notes
delivered in exchange for any Global Note or beneficial interests in Global
Notes will be registered in the names, and issued in any approved denominations,
requested by or on behalf of the depository (in accordance with its customary
procedures) and will bear an applicable restrictive legend unless that legend is
not required by applicable law.
SAME DAY SETTLEMENT AND PAYMENT
We will make payments in respect of the notes represented by the Global
Notes (including principal, premium, if any, interest and Special Interest, if
any) by wire transfer of immediately available funds to the accounts specified
by the Global Note holder. We will make all payments of principal, interest and
premium and Special Interest, if any, with respect to Certificated Notes by wire
transfer of immediately available funds to the accounts specified by the holders
of the Certificated Notes or, if no such account is specified, by mailing a
check to each such holder's registered address. The notes represented by the
Global Notes are expected to be eligible to
47
trade in the PORTAL market and to trade in DTC's Same-Day Funds Settlement
System, and any permitted secondary market trading activity in such notes will,
therefore, be required by DTC to be settled in immediately available funds. We
expect that secondary trading in any Certificated Notes will also be settled in
immediately available funds.
REGISTRATION RIGHTS; SPECIAL INTEREST
The following description is a summary of the material provisions of the
registration rights agreement. It does not restate that agreement in its
entirety. We urge you to read the registration rights agreement in its entirety
because it, and not this description, defines your registration rights as
holders of the old notes. See "-- Additional Information above."
In connection with the closing of the offering, Georgia-Pacific and the
initial purchasers entered into the registration rights agreement effective
December 11, 2003. Pursuant to the registration rights agreement, we agreed to
file with the SEC a registration statement of which this prospectus is a part
(as used in this subsection, the "exchange offer registration statement") with
respect to the exchange of the old notes for new notes having the same terms as
the old notes. Upon the effectiveness of the exchange offer registration
statement, we agreed to offer to the holders of Transfer Restricted Securities
(defined below) who are able to make certain representations the opportunity to
exchange their Transfer Restricted Securities for new notes.
The registration rights agreement provides that:
(1) Georgia-Pacific will file the exchange offer registration statement
with the SEC on or prior to 90 days after the closing of the offering
(March 10, 2004);
(2) Georgia-Pacific will use reasonable best efforts to have the
exchange offer registration statement declared effective by the SEC on or
prior to 180 days after the closing of the offering (June 8, 2004);
(3) Georgia-Pacific will use reasonable best efforts to commence and
complete the exchange offer on or prior to the 30th business day, or
longer, if required by the federal securities laws, after the date on which
the exchange offer registration statement is declared effective by the SEC,
and exchange new notes for all old notes that have been properly tendered
and not withdrawn on or prior to the expiration of the exchange offer; and
(4) if obligated to file the shelf registration statement,
Georgia-Pacific will use reasonable best efforts to file the shelf
registration statement with the SEC on or prior to 60 days after such
filing obligation arises and to cause the shelf registration statement to
be declared effective by the SEC on or prior to 150 days after such
obligation arises.
If:
(1) Georgia-Pacific is not:
(a) required to file the exchange offer registration statement;
or
(b) permitted to consummate the exchange offer because the
exchange offer is not permitted by applicable law or SEC policy; or
(2) any holder of Transfer Restricted Securities notifies
Georgia-Pacific prior to the 20th day following consummation of the
exchange offer that:
(a) it is prohibited by law or SEC policy from participating in
the exchange offer; or
(b) that it may not resell the new notes acquired by it in the
exchange offer to the public without delivering a prospectus and the
prospectus contained in the
48
exchange offer registration statement is not appropriate or available
for such resales; or
(c) that it is a broker-dealer and owns notes acquired directly
from Georgia-Pacific or an affiliate of Georgia-Pacific,
then Georgia-Pacific will file with the SEC a shelf registration statement to
cover resales of the notes by the holders of the notes who satisfy certain
conditions relating to the provision of information in connection with the shelf
registration statement.
Georgia-Pacific will use reasonable best efforts to cause the applicable
registration statement to be declared effective as promptly as possible by the
SEC.
For purposes of the preceding, "Transfer Restricted Securities" means each
old note until:
(1) the date on which such note has been exchanged by a Person other
than a broker-dealer for a new note in the exchange offer;
(2) following the exchange by a broker-dealer in the exchange offer of
an old note for a new note, the date on which such new note is sold to a
purchaser who receives from such broker-dealer on or prior to the date of
such sale a copy of the prospectus contained in the exchange offer
registration statement;
(3) the date on which such note has been effectively registered under
the Securities Act and disposed of in accordance with the shelf
registration statement;
(4) the date on which such note is distributed to the public pursuant
to Rule 144 under the Securities Act;
(5) the date on which such note is eligible to be sold pursuant to
paragraph (k) of Rule 144; or
(6) the date on which such note ceases to be outstanding.
If:
(1) Georgia-Pacific fails to file any of the registration statements
required by the registration rights agreement on or before the date
specified above for such filing; or
(2) any of such registration statements is not declared effective by
the SEC on or prior to the date specified above for such effectiveness (the
"Effectiveness Target Date"); or
(3) Georgia-Pacific fails to consummate the exchange offer before the
31st business day after the Effectiveness Target Date with respect to the
exchange offer registration statement; or
(4) the shelf registration statement or the exchange offer registration
statement is declared effective but thereafter is withdrawn or subject to
an effective stop order pursuant to Section 8(d) of the Securities Act
suspending the effectiveness of Transfer Restricted Securities during the
periods specified in the registration rights agreement (each such event
referred to in clauses (1) through (4) above, a "Registration Default"),
then Georgia-Pacific will pay Special Interest to each affected holder of notes,
with respect to the first 90-day period immediately following the occurrence of
the first Registration Default in an amount equal to 0.25% per annum of the
principal amount of notes held by such holder.
The amount of the Special Interest will increase by an additional 0.25% per
annum of the principal amount of notes with respect to each subsequent 90-day
period until all Registration Defaults have been cured, up to a maximum amount
of Special Interest for all Registration Defaults of 1.0% per annum of the
principal amount of notes.
49
Following the cure of all Registration Defaults, the accrual of Special
Interest will cease.
Holders of old notes will be required to make certain representations to
Georgia-Pacific (as described in the registration rights agreement) in order to
participate in the exchange offer and will be required to deliver certain
information to be used in connection with the shelf registration statement and
to provide comments on the shelf registration statement within the time periods
set forth in the registration rights agreement in order to have their old notes
included in the shelf registration statement and benefit from the provisions
regarding Special Interest set forth above. By acquiring Transfer Restricted
Securities, a holder will be deemed to have agreed to indemnify Georgia-Pacific
against certain losses arising out of information furnished by such holder in
writing for inclusion in any shelf registration statement. Holders of notes will
also be required to suspend their use of the prospectus included in the shelf
registration statement under certain circumstances upon receipt of written
notice to that effect from Georgia-Pacific.
50
CERTAIN UNITED STATES FEDERAL
INCOME TAX CONSEQUENCES
The following is a summary of the material U.S. federal income tax
consequences of the exchange of old notes for new notes, as well as the
ownership and disposition of the new notes. Unless otherwise stated under the
heading "Non-U.S. holders," below, this summary deals only with notes that are
acquired in connection with this exchange offer and held as capital assets by
U.S. holders, as defined below. It does not deal with special classes of holders
such as banks, thrifts, real estate investment trusts, regulated investment
companies, insurance companies, dealers in securities or currency, tax-exempt
investors, controlled foreign corporations, passive foreign investment
companies, foreign personal holding companies, corporations that accumulate
earnings to avoid U.S. federal income tax and United States expatriates. This
summary also does not address the tax consequences to U.S. holders that have a
functional currency other than the U.S. Dollar, partnerships or other entities
treated as partnerships that hold notes, persons that hold notes as part of a
straddle, hedging, constructive sale or conversion transaction, or shareholders,
partners or beneficiaries of a holder of notes. It also does not include any
description of any tax consequences under the tax laws of any state or local
government or of any foreign government that may be applicable to the notes.
This summary is based on the Internal Revenue Code of 1986, as amended, which we
refer to in this prospectus as the Code, Treasury regulations under the Code,
which we refer to in this prospectus as the Treasury Regulations, and
administrative and judicial interpretations of the Code, as of the date of this
prospectus, all of which are subject to change, possibly on a retroactive basis.
As used in this section, the term "U.S. holder" means any beneficial owner
of notes that is, for United States federal income tax purposes,
- a citizen or resident of the United States,
- corporation (or other entity taxable as a corporation) created or
organized in or under the laws of the United States, any state thereof
or the District of Columbia,
- an estate the income of which is subject to United States federal
income taxation regardless of its source, or
- a trust if (1) a court within the United States is able to exercise
primary supervision over the administration of the trust and one or
more United States persons have the authority to control all
substantial decisions of the trust or (2) the trust has in effect a
valid election to be treated as a domestic trust for United States
federal income tax purposes.
As used in this discussion, the term Non-U.S. holder means a beneficial
owner of notes that is an individual, corporation, estate or trust and is not a
U.S. holder.
You should consult your own tax advisor to determine the effect of federal,
state, local and foreign income tax laws with respect to the exchange of old
notes for new notes and the continuing investment in the notes.
TAX CONSEQUENCES OF THE EXCHANGE OFFERS
Under current law, the exchange of old notes for new notes pursuant to the
exchange offer will not be treated as an "exchange" for federal income tax
purposes. Accordingly,
- holders will not recognize taxable gain or loss upon the receipt of
new notes in exchange for old notes in the exchange offer,
- the holding period for a new note received in the exchange offer will
include the holding period of the old note surrendered in exchange
therefor, and
51
- the adjusted tax basis of a new note immediately after the exchange
will be the same as the adjusted tax basis of the old note surrendered
in exchange therefor.
We are obligated to pay additional interest on the notes under certain
circumstances described under "Description of the New Notes -- Registration
Rights; Special Interest." Although the matter is not free from doubt, such
additional interest should be taxable as interest under the rules described
below in the event that additional interest is paid. It is possible, however,
that the Internal Revenue Service, or the IRS, may take a different position
with respect to the treatment of such additional interest. Holders should
consult their own tax advisors about payments of such additional interest.
U.S. HOLDERS
INTEREST INCOME. Except as set forth below, stated interest on a new note
will be includible in a U.S. holder's gross income as ordinary interest income
at the time it is accrued or received in accordance with the U.S. holder's
method of accounting for United States federal income tax purposes.
MARKET DISCOUNT. A U.S. holder who purchases a note for an amount that is
less than its stated principal amount will be treated as having purchased the
note with "market discount" unless the discount is less than a specified de
minimis amount. Under the market discount rules, a U.S. holder generally will be
required to treat any gain realized on the sale, exchange, retirement or other
disposition of a note as ordinary income to the extent of any accrued market
discount not previously included in income. For this purpose, market discount
will be considered to accrue ratably during the period from the date of the U.S.
holder's acquisition of the note to the maturity date of the note, unless the
U.S. holder makes an election to accrue market discount on a constant yield
basis. A U.S. holder may be required to defer the deduction of all or a portion
of the interest paid or accrued on any indebtedness incurred or maintained to
purchase or carry a note with market discount until the maturity date of the
note or certain earlier dispositions.
A U.S. holder may elect to include market discount in income currently as
it accrues (on either a ratable or constant yield basis), in which case the
rules described above regarding (1) the treatment as ordinary income of gain
upon the disposition of the note and (2) the deferral of interest deductions,
will not apply. Generally, currently included market discount is treated as
ordinary interest income for federal income tax purposes. An election to include
market discount as it accrues will apply to all debt instruments with market
discount acquired by the U.S. holder on or after the first day of the taxable
year to which the election applies and may be revoked only with the consent of
the Internal Revenue Service.
AMORTIZABLE BOND PREMIUM. In general, a U.S. holder acquires a debt
instrument with "amortizable bond premium" if the U.S. holder's basis in the
debt instrument immediately after its acquisition (generally, the holder's
acquisition cost) exceeds the sum of all amounts payable on the debt instrument
after the acquisition date (other than stated interest). A special rule applies
to determine the amounts that are payable on debt instruments (such as the
notes) that may be redeemed at the issuer's option prior to maturity. Under this
special rule, the issuer will be deemed to exercise a call option or combination
of call options in the manner that maximizes the holder's yield on the debt
instrument. The result of this special rule is that smaller amounts of premium
will be allocable to the period prior to the date on which the debt instrument
may be redeemed. If the issuer does not in fact exercise its right to redeem the
debt instrument on the applicable redemption date, the debt instrument will be
treated (solely for purposes of the amortizable bond premium rules) as having
matured and then as having been reissued for the holder's "adjusted acquisition
price," which is an amount equal to the U.S. holder's adjusted tax basis in the
debt instrument, less the sum of (i) any amortizable bond premium allocable to
prior accrual periods and (ii) any payments previously made on the debt
instrument (other than stated interest payments). The debt instrument deemed to
have been reissued will again be
52
subject to the amortizable bond premium rules with respect to the remaining
dates on which the debt instrument is redeemable.
In general, a U.S. holder amortizes bond premium under Section 171 of the
Code by offsetting the stated interest allocable to an accrual period with the
bond premium allocable to the accrual period, which is determined under a
constant yield method pursuant to applicable Treasury Regulations. If the bond
premium allocable to an accrual period exceeds the stated interest allocable to
such period, the excess is treated by the holder as a bond premium deduction.
However, the bond premium deduction for each accrual period is limited to the
amount by which the U.S. holder's total interest inclusions on the debt
instrument in prior accrual periods exceed the total amount treated by such
holder as a bond premium deduction on the debt instrument in prior accrual
periods. Any amounts not deductible in an accrual period may be carried forward
to the next accrual period and treated as bond premium allocable to that period.
In order to amortize bond premium under these rules, a U.S. holder must make an
affirmative election in the manner prescribed by applicable Treasury
Regulations. Once made, the election applies to all taxable debt instruments
then owned and thereafter acquired by the U.S. holder on or after the first day
of the taxable year to which such election applies, and may be revoked only with
the consent of the Internal Revenue Service.
CONSTANT YIELD ELECTION. In lieu of applying the rules described above,
U.S. holders may make a "constant yield election" under Treasury Regulation
section 1.1272-3 with respect to their notes. Generally, if this election were
to be made with respect to a note, all stated interest and market discount
(including de minimis market discount), as adjusted by any amortizable bond
premium, would be treated by the electing U.S. holder as if it were original
issue discount and would be included in the holder's gross income as it accrues
on a constant yield basis, regardless of the holder's regular method of tax
accounting. In determining the note's yield for this purpose, the adverse
presumption under the amortizable bond premium rules (pursuant to which an
issuer's call right is deemed to be exercised if it maximizes the holder's
yield) would not apply. A constant yield election applies only to the note with
respect to which it is made and may not be revoked without the consent of the
Internal Revenue Service. A U.S. holder considering this election should consult
a tax advisor.
SALE, EXCHANGE OR RETIREMENT OF NEW NOTES. Upon sale, exchange (other than
an exchange of old notes for new notes pursuant to the exchange offer), or
retirement of a new note, a U.S. holder generally will recognize gain or loss
equal to the difference between the amount realized on the sale, exchange, or
retirement (less an amount equal to any accrued but unpaid interest not
previously included in income, which would be taxable as interest income) and
the U.S. holder's adjusted tax basis in the new note. A U.S. holder's adjusted
tax basis in a new note will generally equal the holder's acquisition cost for
such new note, increased by the amount of market discount previously included in
income by such holder with respect to such new note and reduced by any principal
payments received, and any amortizable bond premium deducted, by the U.S.
holder. Subject to the market discount rules discussed above, gain or loss so
recognized will be capital gain or loss and will be long-term capital gain or
loss if, at the time of the sale, exchange, or retirement, the new note was held
for more than one year. Under current law, net capital gains of non-corporate
taxpayers, under certain circumstances, are taxed at lower rates than items of
ordinary income. The deduction of capital losses is subject to certain
limitations.
NON-U.S. HOLDERS
INTEREST INCOME. Generally, interest income of a Non-U.S. holder that is
not effectively connected with a United States trade or business will be subject
to a withholding tax at a 30% rate or, if applicable, a lower tax rate specified
by a treaty, provided the Non-U.S. holder provides the payor with a properly
executed IRS Form W-8BEN (or a suitable substitute form) claiming such lower
treaty rate. However, interest income earned on the new notes by a Non-
53
U.S. holder may qualify for the "portfolio interest" exemption and therefore not
be subject to United States federal income tax or withholding tax, if such
interest income is not effectively connected with a United States trade or
business of the Non-U.S. holder and if:
- the Non-U.S. holder does not actually or constructively own 10% or
more of the total combined voting power of all classes of our stock
entitled to vote,
- the Non-U.S. holder is not a controlled foreign corporation that is
related to us through stock ownership,
- the Non-U.S. holder is not a bank whose receipt of interest on the new
notes is described in Section 881(c)(3)(A) of the Code,
- the Non-U.S. holder certifies to us or our agent, under penalties of
perjury, that it is not a U.S. holder and provides its name and
address or otherwise satisfies applicable identification requirements,
and
- neither we nor our paying agent knows or has reason to know that the
conditions of the exemption are, in fact, not satisfied.
In the case of new notes held by partnerships, the certification described
above must be provided by the partners, rather than by the partnerships and the
partnership must provide certain information, including a U.S. taxpayer
identification number. A look through rule applies in the case of tiered
partnerships.
Unless an applicable treaty otherwise provides, a Non-U.S. holder generally
will be taxed in the same manner as a U.S. holder with respect to interest if
the interest income is effectively connected with a United States trade or
business of the Non-U.S. holder and, in the case of a Non-U.S. holder that is
eligible for benefits of an income tax treaty with the United States, is
attributable to a permanent establishment maintained by the Non-U.S. holder in
the United States. Such effectively connected interest received or accrued by a
corporate Non-U.S. holder may also, under certain circumstances, be subject to
an additional "branch profits" tax at a 30% rate or, if applicable, a lower tax
rate specified by a treaty. Even though such effectively connected interest is
subject to U.S. income tax and may be subject to the branch profits tax, it is
not subject to U.S. withholding tax if the holder delivers a properly executed
IRS Form W-8ECI (or a suitable substitute form) to us or our paying agent and
neither we nor our paying agent knows or has reason to know that the information
on the form is incorrect.
SALE, EXCHANGE, OR RETIREMENT OF NEW NOTES. A Non-U.S. holder generally
will not be subject to United States federal income tax or withholding tax on
any gain realized on the sale, exchange, or retirement of new notes unless
- the gain is effectively connected with a United States trade or
business of the Non-U.S. holder and, in the case of a Non-U.S. holder
that is eligible for benefits of an income tax treaty with the United
States, the gain is attributable to a permanent establishment
maintained by the Non-U.S. holder in the United States, or
- in the case of a Non-U.S. holder who is an individual, such holder is
present in the United States for a period or periods aggregating 183
days or more during the taxable year of the disposition, and either
such holder has a "tax home" in the United States or the disposition
is attributable to an office or other fixed place of business
maintained by such holder in the United States.
CERTAIN U.S. FEDERAL ESTATE TAX CONSIDERATIONS FOR NON-U.S. HOLDERS. A note
held by an individual who is not a U.S. citizen or resident at the time of death
will not be includable in the decedent's gross estate for United States federal
estate tax purposes, provided that any payments to such individual on the note
would be eligible for the "portfolio interest" exemption
54
described above under "Interest Income" without regard to the certification
requirements described in that section.
INFORMATION REPORTING AND BACKUP WITHHOLDING TAX
In general, information reporting on IRS Form 1099 will apply to payments
to a U.S. holder of principal, premium, if any, and interest on a new note and
the proceeds of the sale of a new note. Backup withholding tax may apply to such
payments to a non-corporate U.S. holder if that U.S. holder:
- fails to furnish or certify its correct taxpayer identification number
to us or our paying agent in the manner required,
- is notified by the IRS that it has failed to report payments of
interest or dividends properly,
- or under certain circumstances, fails to certify that it has not been
notified by the IRS that it is subject to backup withholding for
failure to report interest or dividend payments.
Information reporting on IRS Form 1099 and backup withholding tax will not
apply to payments of interest on new notes to a Non-U.S. Holder if the
certification or identification requirements described in "-- Non-U.S.
Holders -- Interest Income" are satisfied by the holder, unless the payor knows
or has reason to know that the holder is not entitled to an exemption from
information reporting or backup withholding tax. However, information reporting
to the Internal Revenue Service on Form 1042-S generally will apply to such
payments and the amount of tax, if any, withheld with respect to such payments.
Copies of these information returns may also be made available to the tax
authorities in the country in which the holder resides under the provisions of
any applicable income tax treaty.
Information reporting requirements and backup withholding tax will not
apply to any payment of the proceeds of the sale of new notes effected outside
the United States by a foreign office of a "broker" (as defined in applicable
Treasury Regulations), unless the broker is a United States person or has
certain connections to the United States. Payment of the proceeds of any such
sale effected outside the United States by a foreign office of a broker
described in the preceding sentence will not be subject to backup withholding
tax, but will be subject to information reporting requirements, unless the
broker has documentary evidence in its records that the beneficial owner is a
Non-U.S. holder and certain other conditions are met, or the beneficial owner
otherwise establishes an exemption. Payment of the proceeds of any such sale to
or through the United States office of a broker is subject to information
reporting and backup withholding requirements unless the beneficial owner of the
new notes provides the certification described in "-- Non-U.S.
holders -- Interest Income" or otherwise establishes an exemption.
Any amounts withheld under the backup withholding rules will be allowed as
a credit against that holder's United States federal income tax liability and
may entitle the holder to a refund, provided that the required information is
furnished to the Internal Revenue Service. The rate for backup withholding tax
is currently 28%, subject to a scheduled increase after 2010.
THE FOREGOING SUMMARY OF CERTAIN UNITED STATES FEDERAL INCOME TAX
CONSEQUENCES OF THE EXCHANGE OF OLD NOTES FOR NEW NOTES AND THE OWNERSHIP AND
DISPOSITION OF NOTES IS INTENDED FOR GENERAL INFORMATION. YOU ARE URGED TO
CONSULT WITH YOUR OWN TAX ADVISOR AS THE U.S. FEDERAL INCOME TAX CONSEQUENCES OF
THE EXCHANGE OF OLD NOTES FOR NEW NOTES AND THE CONTINUING INVESTMENT IN THE
NOTES AS WELL AS THE CONSEQUENCES UNDER STATE, LOCAL AND FOREIGN INCOME TAX LAW.
NON-U.S. HOLDERS ARE URGED TO CONSULT THEIR OWN TAX ADVISORS AS TO THE EFFECT OF
INCOME TAX TREATIES AND REPORTING REQUIREMENTS WITH REGARD TO AN INVESTMENT IN
THE NOTES.
55
PLAN OF DISTRIBUTION
We are not using any underwriters for the exchange offer.
Each broker-dealer that receives new notes for its own account pursuant to
the exchange offer must acknowledge that it will deliver a prospectus in
connection with any resale of the new notes. This prospectus, as it may be
amended or supplemented from time to time, may be used by a broker-dealer in
connection with resales of any new notes received in exchange for old notes
acquired by the broker-dealer as a result of market-making or other trading
activities. For a period of up to 180 days after the expiration of the exchange
offer, we will promptly send additional copies of this prospectus and any
amendment or supplement to this prospectus to any broker-dealer that requests
these documents. In addition, during this 180-day period, all dealers effecting
transactions in the new notes may be required to deliver a prospectus. In any
event, we are under a continuing obligation, for a period of up to 180 days
after the SEC declares the registration statement of which this prospectus is a
part effective, to keep the registration statement effective, subject to our
ability to suspend the effectiveness of the registration statement as described
in the registration rights agreement.
We will not receive any proceeds from any sale of new notes by
broker-dealers or any other persons. New notes received by broker-dealers for
their own account pursuant to the exchange offer may be sold from time to time
in one or more transactions in the over-the-counter market, in negotiated
transactions, through the writing of options on the new notes, or a combination
of these methods of resale, at market prices prevailing at the time of resale,
at prices related to the prevailing market prices or negotiated prices. Any
resale may be made directly to purchasers or to or through brokers or dealers
who may receive compensation in the form of commissions or concessions from any
broker-dealer and/or the purchasers of any new notes. Any broker-dealer that
resells new notes that were received by it for its own account pursuant to the
exchange offer and any broker-dealer that participates in a distribution of new
notes may be deemed to be an "underwriter" within the meaning of the Securities
Act, and any profit resulting from these resales of new notes and any
commissions or concessions received by any of these persons may be deemed to be
underwriting compensation under the Securities Act. The letter of transmittal
states that, by acknowledging that it will deliver and by delivering a
prospectus, a broker-dealer will not be deemed to admit that it is an
"underwriter" within the meaning of the Securities Act.
We have agreed to pay all expenses incident to the exchange offer (other
than commissions or concessions of any brokers or dealers), subject to certain
prescribed limitations, and will indemnify the holders of the old notes and the
new notes (including any broker-dealers) against certain liabilities, including
liabilities under the Securities Act.
By its acceptance of the exchange offer, any broker-dealer that receives
new notes pursuant to the exchange offer hereby agrees to notify us prior to
using the prospectus in connection with the sale or transfer of new notes, and
acknowledges and agrees that, upon receipt of notice from us of the happening of
any event which makes any statement in the prospectus untrue in any material
respect or which requires the making of any change in the prospectus in order to
make the statements therein not misleading or which may impose upon us
disclosure obligations that may have a material adverse effect on us (which
notice we agree to deliver promptly to such broker-dealer), such broker-dealer
will suspend use of the prospectus until we have notified such broker-dealer
that delivery of the prospectus may resume and have furnished copies of any
amendment or supplement to the prospectus to such broker-dealer.
LEGAL MATTERS
Certain legal matters with respect to the new notes will be passed upon for
us by Simpson Thacher & Bartlett LLP, New York, New York.
56
EXPERTS
The consolidated financial statements of Georgia-Pacific Corporation
appearing in Georgia-Pacific Corporation's Form 10-K for the fiscal year ended
January 3, 2004 have been audited by Ernst & Young LLP, independent auditors, as
set forth in their report thereon included therein and incorporated herein by
reference. Such consolidated financial statements are incorporated herein by
reference in reliance upon such report given on the authority of such firm as
experts in accounting and auditing.
57
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--------------------------------------------------------------------------------
GEORGIA-PACIFIC CORPORATION
OFFER TO EXCHANGE
8% SENIOR NOTES DUE 2024
THAT HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933
FOR
ALL OUTSTANDING UNREGISTERED
8% SENIOR NOTES DUE 2024
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
PART II
INFORMATION NOT REQUIRED IN THE PROSPECTUS
ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS
Subsection (a) of Section 14-2-851 of the Georgia Business Corporation Code
("GBCC") provides that a corporation may indemnify a director against liability
incurred (a) in a civil proceeding (1) if, in the case of conduct in such
director's capacity as a director, the conduct was in good faith and reasonably
believed by such director to be in the best interests of the corporation, and
(2) if, in all other cases, such director's conduct was at least not opposed to
the best interests of the corporation; and (b) in a criminal proceeding, if the
director had no reasonable cause to believe such conduct was unlawful.
Subsection (d) of Section 14-2-851 of the GBCC provides that a corporation may
not indemnify a director in connection with a proceeding by or in the right of
the corporation, except for reasonable expenses incurred in connection with the
proceeding if it is determined that the director has met the relevant standard
of conduct under Section 14-2-851, or in connection with any proceeding with
respect to conduct for which such director was adjudged liable on the basis that
personal benefit was improperly received by such director, whether or not
involving action in such director's capacity as a director. Notwithstanding the
foregoing, pursuant to Section 14-2-854 of the GBCC, an appropriate court may
order a corporation to indemnify a director if such court determines, in view of
all the relevant circumstances, that it is fair and reasonable to indemnify the
director even if the director has not met the relevant standard of conduct set
forth Section 14-2-851 of the GBCC, failed to comply with Section 14-2-853 of
the GBCC, or was adjudged liable in a proceeding referred to in paragraph (1) or
(2) of subsection (d) of Section 14-2-851 of the GBCC, but if the director was
adjudged so liable, the indemnification shall be limited to reasonable expenses
incurred in connection with the proceeding.
Section 14-2-852 of the GBCC provides that, a corporation shall indemnify a
director who was wholly successful, on the merits or otherwise, in the defense
of any proceeding to which such director was a party because such director was a
director of the corporation, against reasonable expenses incurred by the
director in connection with the proceeding.
Section 14-2-857 of the GBCC provides that a corporation may indemnify and
advance expenses to an officer of the corporation who is a party to a proceeding
because such person is an officer of the corporation to the same extent as a
director. If the officer is not a director, (or if the officer is a director but
the sole basis on which such person is made a party to the proceeding is an act
or omission solely as an officer) to such further extent as may be provided by
the articles of incorporation, the bylaws, a resolution of the board of
directors, or contract except for liability arising out of conduct that
constitutes (1) appropriation, in violation of such person's duties, of any
business opportunity of the corporation, (2) acts or omissions that involve
intentional misconduct or a knowing violation of law, or (3) receipt of an
improper personal benefit. An officer of a corporation who is not a director is
entitled to mandatory indemnification under Section 14-2-852 of the GBCC and may
apply to a court under Section 14-2-854 of the GBCC for indemnification or
advances for expenses, in each case to the same extent to which a director may
be entitled to indemnification or advances for expenses under those provisions.
Finally, a corporation may also indemnify and advance expenses to an employee or
agent who is not a director to the extent, consistent with public policy, that
may be provided by its articles of incorporation, bylaws, general or specific
action by its board of directors or contract.
In accordance with Georgia-Pacific Corporation's restated Articles of
Incorporation, as amended, a director of Georgia-Pacific Corporation is not
liable to Georgia-Pacific Corporation or its shareholders for monetary damages
for any action taken, or any failure to take any action, as a director, except
for liability related to (1) any appropriation of any business opportunity of
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Georgia-Pacific Corporation, (2) acts or omissions that involve intentional
misconduct or a willful violation of law or (3) any transactions from which the
director received an improper personal benefit.
In accordance with Georgia-Pacific Corporation's restated Bylaws, every
person (and the heirs and personal representatives of such person) who is or was
a director, officer, employee or agent of Georgia-Pacific Corporation, or of any
other corporation, partnership, joint venture, trust or other enterprise in
which such person served as such at the request of Georgia-Pacific Corporation,
shall be indemnified by Georgia-Pacific Corporation against any and all
liability and expenses (including, without limitation, counsel fees and
disbursements, and amounts of judgments, fines or penalties against, or amounts
paid in settlement by, a director, officer, employee or agent) actually and
reasonably incurred by such person in connection with or resulting from any
threatened, pending or completed claim, action, suit or proceeding, whether
civil, criminal, administrative or investigative or in connection with any
appeal relating thereto, in which such person may become involved, as a party or
otherwise, or with which such person may be threatened, by reason of being or
having been a director, officer, employee or agent of Georgia-Pacific
Corporation or such other corporation, partnership, joint venture, trust or
other enterprise, or by reason of any action taken or omitted by such person in
such person's capacity as such director, officer, employee or agent whether or
not such person continues to be such at the time such liability or expense shall
have been incurred.
Every person (and the heirs and personal representatives of such person),
to the extent that such person has been successful on the merits or otherwise
with respect to any claim, action, matter, suit or proceeding is entitled to
indemnification, as of right, for expenses (including attorney's fees) actually
and reasonable incurred by such person in connection therewith. Except as
provided in the preceding sentence, upon receipt of a claim for indemnification
under Georgia-Pacific Corporation's restated Bylaws, the Board of Directors of
Georgia-Pacific Corporation shall, if the claim is made by a director or officer
of Georgia-Pacific Corporation, determine whether the claimant met the
applicable standard of conduct as set forth in paragraphs (A) and (B) below. If
such determination has not been made within 90 days after the claim is asserted,
the claimant shall have the right to require that the determination be submitted
to the shareholders at the next regular meeting of shareholders by vote of a
majority of the shares entitled to vote thereon. If a claim is made by a person
who is not a director or officer of Georgia-Pacific Corporation, the appropriate
officers of Georgia-Pacific Corporation shall determine, subject to applicable
law, the manner in which there shall be made the determination as to whether the
claimant met the applicable standard of conduct as set forth in paragraphs (A)
and (B) below. In the case of each claim for indemnification, Georgia-Pacific
Corporation shall pay the claim to the extent the determination is favorable to
the person making the claim.
(A) In the case of a claim, action, suit or proceeding other than by or
in the right of Georgia-Pacific Corporation to procure a judgment in its
favor, the director, officer, employee or agent must have acted in a manner
reasonably believed to be in or not opposed to the best interests of
Georgia-Pacific Corporation, and, in addition, in any criminal action or
proceeding, had no reasonable cause to believe that the conduct was
unlawful. In addition, any director seeking indemnification must not have
been adjudged liable on the basis that any personal benefit was received by
such person.
(B) In the case of a claim, action, suit or proceeding by or in the
right of Georgia-Pacific Corporation to procure a judgment in its favor,
the director, officer, employee or agent must have acted in good faith in a
manner reasonably believed to be in or not opposed to the best interests of
Georgia-Pacific Corporation; provided, however, that no indemnification
shall be made (1) with regard to any claim, issue or matter as to which
such director, officer, employee or agent shall have been adjudged to be
liable to Georgia-Pacific Corporation unless and only to the extent that
the court in which such action or suit
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was brought shall determine that, despite the adjudication of liability but
in view of all the circumstances of the case, such director, officer,
employee or agent is fairly and reasonably entitled to indemnity for such
expenses that the court shall deem proper, or (2) for amounts paid, or
expenses incurred, in connection with the defense or settlement of any such
claim, action, suit or proceeding, unless a court of competent jurisdiction
has approved indemnification with regard to such amounts or expenses.
Pursuant to Georgia-Pacific Corporation's restated Bylaws, expenses
incurred by any person who is or was a director, officer, employee or agent of
Georgia-Pacific Corporation with respect to any claim, action, suit or
proceeding of the character described in the first sentence of the preceding
paragraph shall be advanced by Georgia-Pacific Corporation prior to the final
disposition thereof upon receipt of an undertaking by or on behalf of the
recipient to repay such amount if it shall be ultimately determined that such
person is not entitled to indemnification. Indemnification and advancement of
expenses pursuant to Georgia-Pacific Corporation's restated Bylaws is not
exclusive of any rights to which any such director, officer, employee or other
person may otherwise be entitled by contract or by law.
Georgia-Pacific Corporation carries insurance policies insuring its
liability to officers and directors under the foregoing indemnity and insuring
its officers and directors against liability incurred in their capacity as such.
ITEM 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES
(a) Exhibits:
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
3.1(i) -- Articles of Incorporation of Georgia-Pacific Corporation,
restated as of December 16, 1997 (Filed as Exhibit 4.1 to
Georgia-Pacific Corporation's Registration Statement on Form
S-8 as filed with the Commission on December 18, 1997,
Commission File No. 333-42597, and incorporated herein by
this reference thereto).
3.1(ii) -- Articles of Amendment to Restated Articles of Incorporation
of Georgia-Pacific Corporation (Filed as Exhibit 3.1 to
Georgia-Pacific Corporation's Quarterly Report on Form 10-Q
for the quarter ended June 30, 1998, Commission File No.
001-03506, and incorporated herein by this reference
thereto).
3.2 -- Bylaws of Georgia-Pacific Corporation, as amended to date.
(Filed as Exhibit 3.1 to Georgia-Pacific Corporation's
Annual Report on Form 10-K for the fiscal year ended
December 29, 2001, Commission File No. 001-03506, and
incorporated herein by this reference thereto).
4.1 -- Indenture, dated as of December 11, 2003, by and between
Georgia-Pacific Corporation and The Bank of New York, as
trustee (Filed as Exhibit 10.37(iii) to Georgia-Pacific
Corporation's Annual Report on Form 10-K for the fiscal year
ended January 3, 2004, Commission File No. 001-03506,
incorporated herein by this reference thereto).
4.2 -- Form of Note for 8% Senior Notes due 2024 (included as part
of Exhibit 4.1).
5.1 -- Opinion of Simpson Thacher & Bartlett LLP as to the legality
of the securities being registered.
10.1 -- Exchange and Registration Rights Agreement, dated as of
December 11, 2003, by and among Georgia-Pacific Corporation
and the representatives of the several purchasers named
therein.
12.1 -- Computation of Ratio of Earnings to Fixed Charges (Filed as
Exhibit 12 to Georgia-Pacific Corporation's Annual Report on
Form 10-K for the fiscal year ended January 3, 2004,
Commission File No. 001-03506, incorporated herein by this
reference thereto).
23.1 -- Consent of Simpson Thacher & Bartlett LLP (included as part
of Exhibit 5.1).
II-3
EXHIBIT
NUMBER DESCRIPTION OF EXHIBIT
------- ----------------------
23.2 -- Consent of Ernst & Young LLP.
23.3 -- Consent of National Economic Research Associates.
23.4 -- Consent of Navigant Consulting.
24.1 -- Powers of Attorney (included in signature pages).
25.1 -- Statement of Eligibility of The Bank of New York, as Trustee
on Form T-1.
99.1 -- Form of Letter of Transmittal.
99.2 -- Form of Notice of Guaranteed Delivery.
99.3 -- Form of Instructions to Registered Holder and/or DTC
Participant from Beneficial Owner.
99.4 -- Form of Letter to Registered Holders.
ITEM 22. UNDERTAKINGS
(a) (1) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(2) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the registrant will, unless in the opinion of their counsel the
matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by them is
against public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
(b) The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the prospectus pursuant to
Items 4, 10(b), 11 or 13 of this form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
(c) The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Atlanta, State of
Georgia, on March 10, 2004.
Georgia-Pacific Corporation
By: /s/ ALSTON D. CORRELL
------------------------------------
Alston D. Correll
Chairman and Chief Executive
Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Alston D. Correll and James F. Kelley, and each
of them, his true and lawful attorney-in-fact and agent, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any and all amendments (including post-effective
amendments) to this Registration Statement, and to file the same, with all
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite or necessary to be done in and about the premises,
as fully to all intents and purposes as he might or could do in person, hereby
ratifying and confirming all that said attorney-in-fact and agents or any of
them, their, or his, substitute or substitutes, may lawfully do or cause to be
done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
SIGNATURE TITLE DATE
--------- ----- ----
/s/ ALSTON D. CORRELL Chairman and Chief Executive March 10, 2004
----------------------------------------------- Officer (Principal Executive
Alston D. Correll Officer)
/s/ DANNY W. HUFF Executive Vice March 10, 2004
----------------------------------------------- President -- Finance and Chief
Danny W. Huff Financial Officer (Principal
Financial Officer)
/s/ JAMES E. TERRELL Vice President and Controller March 10, 2004
----------------------------------------------- (Principal Accounting Officer)
James E. Terrell
/s/ LEE M. THOMAS President, Chief Operating Officer March 10, 2004
----------------------------------------------- and Director
Lee M. Thomas
/s/ JAMES S. BALLOUN Director March 10, 2004
-----------------------------------------------
James S. Balloun
/s/ BARBARA L. BOWLES Director March 10, 2004
-----------------------------------------------
Barbara L. Bowles
/s/ WORLEY H. CLARK, JR. Director March 10, 2004
-----------------------------------------------
Worley H. Clark, Jr.
/s/ DONALD V. FITES Director March 10, 2004
-----------------------------------------------
Donald V. Fites
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SIGNATURE TITLE DATE
--------- ----- ----
/s/ RICHARD V. GIORDANO Director March 10, 2004
-----------------------------------------------
Richard V. Giordano
/s/ DAVID R. GOODE Director March 10, 2004
-----------------------------------------------
David R. Goode
/s/ M. DOUGLAS IVESTER Director March 10, 2004
-----------------------------------------------
M. Douglas Ivester
/s/ LOUIS W. SULLIVAN Director March 10, 2004
-----------------------------------------------
Louis W. Sullivan
/s/ JAMES B. WILLIAMS Director March 10, 2004
-----------------------------------------------
James B. Williams
/s/ JOHN D. ZEGLIS Director March 10, 2004
-----------------------------------------------
John D. Zeglis
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