UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 5)
P. H. Glatfelter Company
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(NAME OF ISSUER)
Common Stock, par value $.01 per share
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(TITLE OF CLASS OF SECURITIES)
377316 10 4
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(CUSIP NUMBER)
John J. Ehlinger, Jr., Esquire
Obermayer Rebmann Maxwell & Hippel, LLP
1617 John F. Kennedy Blvd., Suite 1900
Philadelphia, PA 19103-1895
215-665-3082
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(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON
AUTHORIZED TO RECEIVE NOTICES AND COMMUNICATIONS)
July 8, 2004
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(DATE OF EVENT WHICH REQUIRES FILING OF THIS STATEMENT)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition that is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box. [ ]
NOTE: Schedules filed in paper format shall include a signed original and five
copies of the schedule, including all exhibits. See Section 240.13d-7 for other
parties to whom copies are to be sent.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
CUSIP NO. 377316 10 4
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1. NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE
PERSONS.
P. H. Glatfelter Family Shareholders' Voting Trust established
pursuant to an Agreement dated as of July 1, 1993, and terminated on
July 8, 2004.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
(b) X
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3. SEC USE ONLY
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4. SOURCE OF FUNDS 00
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5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) [X]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION Pennsylvania
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7. SOLE VOTING POWER 0
Number -------------------------------------------------------------------
of Shares
Beneficially 8. SHARED VOTING POWER 0
Owned
by Each -------------------------------------------------------------------
Reporting
Person 9. SOLE DISPOSITIVE POWER 0
With
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10. SHARED DISPOSITIVE POWER 0
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11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 0
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12. CHECK IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
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13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0%
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14. TYPE OF REPORTING PERSON 00
CUSIP NO. 377316 10 4
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1. NAMES OF REPORTING PERSONS. I.R.S. IDENTIFICATION NOS. OF ABOVE
PERSONS.
Voting Trustee of P. H. Glatfelter Family Shareholders' Voting Trust
established pursuant to an Agreement dated as of July 1, 1993, and
terminated on July 8, 2004.
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2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP
(a)
(b) X
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3. SEC USE ONLY
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4. SOURCE OF FUNDS 00
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5. CHECK IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEMS 2(d) OR 2(e) [ ]
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6. CITIZENSHIP OR PLACE OF ORGANIZATION Pennsylvania
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This Amendment No. 5, dated as of July 8, 2004, amends the Schedule 13D,
dated July 1, 1993 and filed on July 2, 1993 (File No. 5-12158) by the P. H.
Glatfelter Family Shareholders' Voting Trust established pursuant to an
Agreement, dated as of July 1, 1993, and the Trustees of the P. H. Glatfelter
Family Shareholders' Voting Trust (the "Initial 13D"), as amended by Amendment
No. 1, dated and filed June 8, 1999; Amendment No. 2, dated and filed July 10,
2000; Amendment No. 3, dated and filed September 13, 2001; and Amendment No. 4,
dated and filed August 9, 2002.
ITEM 1. SECURITY AND ISSUER
This Statement relates to the Common Stock, par value $.01 per share (the
"Glatfelter Stock") of P. H. Glatfelter Company, a Pennsylvania corporation (the
"Company"), which has its principal executive offices at 96 South George Street,
Suite 500, York, Pennsylvania 17401.
This Statement is being filed by PNC Bank, National Association ("PNC"),
on behalf of the P. H. Glatfelter Family Shareholders' Voting Trust (the "Voting
Trust") and its Body of Trustees (the "Voting Trustee"). The Voting Trust was
established pursuant to an Agreement, dated as of July 1, 1993 (the "Voting
Trust Agreement"), a copy of which was filed as an exhibit to the Initial 13D.
Pursuant to the Voting Trust Agreement, PNC, as trustee and co-trustee,
and the other co-trustees, of many of the fiduciary trusts (the "Family Trusts")
established by and for the benefit of the lineal descendants by birth of Philip
H. Glatfelter or spouses of such descendants (the "Glatfelter Family"), ceded to
the Voting Trustee voting power over the shares of Glatfelter Stock held of
record by such Family Trusts. A total of 72 Family Trusts were most recently
subject to the Voting Trust. The Family Trusts that had been subject to the
Voting Trust prior to its termination are referred to herein as the "Constituent
Trusts," and the shares of Glatfelter Stock that had been held in the Voting
Trust are referred to herein as the "Trust Shares."
The Voting Trust has been terminated by unanimous written consent of all
of the Constituents (as defined below) filed with the Trust Agent on July 8,
2004, coincident with and as of the date of the filing by the Company with the
Securities and Exchange Commission, at the request of PNC and representatives of
the Glatfelter Family, of a Registration Statement on Form S-3 (No. 333-117233)
on July 8, 2004 for the sale by PNC, as trustee and co-trustee of the Family
Trusts and certain other Family Trusts, certain other co-trustees of the Family
Trusts and certain other shareholders of the Company in an underwritten public
offering (the "Offering") of 6,500,000 shares of Glatfelter Stock (plus 975,000
shares subject to over-allotment options), which includes 5,135,953 shares or
approximately 49% of the aggregate number of shares of Glatfelter Stock that had
been held by the Voting Trust.
ITEM 2. IDENTITY AND BACKGROUND
The members of the Glatfelter Family who are settlors or beneficiaries of
the Constituent Trusts were divided into five lineal groups (the "Groups") for
the purpose of selecting those persons who constitute the Voting Trustee. The
persons who have constituted the Voting Trustee had been: PNC, as Bank
Constituent (the "Bank Constituent"), and the following five members, each of
whom represented a Group (each a "Group Constituent" and, together with the Bank
Constituent, the "Constituents").
ITEMS 2 (a) - (c) AND (f). The names, residence or business addresses and
principal occupations of the Group Constituents are set forth below:
Residence or
Names Business Addresses Principal Occupations
----- ------------------ ---------------------
Katherine G. Costello 195 Saddle Hill Road Homemaker
Spring Grove, PA 17362
William M. Eyster, II 204 St. Charles Way #166 Retired
York, PA 17402
Elizabeth Glatfelter 9161 Greentree Road Homemaker
Philadelphia, PA 19118
Irene G. Simonsen 751 Manatee Cove Homemaker
(formerly Irene G. Fegley) Vero Beach, FL 32963
Susan M.G. Messersmith 6569 Kopp Road
(formerly Susan M. G. Wilson) Spring Grove, PA 17362 Homemaker
Katherine G. Costello was elected as a Group Constituent on April 5, 1996
and replaced William L. Glatfelter III, who resigned on March 20, 1996. William
M. Eyster, II was one of the initial Group Constituents named in the Voting
Trust Agreement. Elizabeth Glatfelter was elected as a Group Constituent on
January 19, 1999 and replaced Patricia G. Foulkrod, whose term expired on
December 31, 1998. Irene G. Simonsen (formerly Irene G. Fegley) was elected as a
Group Constituent on January 30, 2001 and replaced H. Clinton Vaughan, whose
term expired on December 31, 2000. Irene G. Simonsen's term expired on December
31, 2003 and she was not elected for another term. PNC, as Trust Agent,
represented the Irene G. Simonsen Group from January 1, 2004 until the
termination of the Voting Trust on July 8, 2004. Susan M. G. Messersmith was
elected as a Group Constituent on June 5, 2000 and replaced Philip H. Glatfelter
IV, who resigned by letter dated May 10, 2000. Each of the persons who was a
Group Constituent is a United States citizen.
The Bank Constituent is a national banking association, which provides
deposit, lending, cash management, investment and trust services primarily
within the geographic markets in Pennsylvania, New Jersey, Delaware, Ohio and
Kentucky. The business address of the Bank Constituent is 1600 Market Street,
Philadelphia, PA 19103, Attn: Howard I. Verbofsky, Chief Counsel, PNC Advisors.
The Bank Constituent is a wholly-owned, second-tier subsidiary of The PNC
Financial Services Group, Inc., a Pennsylvania corporation.(1) The PNC Financial
Services Group, Inc. is the ultimate parent corporation of the Bank Constituent.
The PNC Financial Services Group, Inc. is one of the largest diversified
financial services organizations in the United States. Its major businesses
include regional community banking, wholesale banking, wealth management, asset
management and global fund processing services. The principal business address
of The PNC Financial Services Group, Inc. is One PNC Plaza, 249 Fifth Avenue,
Pittsburgh, PA 15222-2707.
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(1) A first-tier subsidiary of The PNC Financial Services Group, Inc., PNC
Bancorp, Inc., a Delaware corporation, is the direct parent corporation of PNC
Bank, National Association.
2
The names and positions with PNC Bank, National Association and The PNC
Financial Services Group, Inc. of the executive officers of PNC Bank, National
Association and The PNC Financial Services Group, Inc. are set forth below:(2)
Names Positions
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James E. Rohr Chairman and Chief Executive Officer
Robert C. Barry, Jr. Senior Vice President and Finance Business Risk Officer
William S. Demchak Vice Chairman and Chief Financial Officer
Joseph C. Guyaux President
Michael J. Hannon Senior Vice President and Chief Credit Policy Officer
Richard J. Johnson Senior Vice President and Director of Finance
William C. Mutterperl Vice Chairman
Samuel R. Patterson Controller
Helen P. Pudlin Senior Vice President and General Counsel
Timothy G. Shack Executive Vice President and Chief Information Officer
Joseph J. Whiteside Vice Chairman
Thomas K. Whitford Executive Vice President and Chief Risk Officer
John J. Wixted, Jr. Senior Vice President and Chief Regulatory Officer
The business address of each such executive officer is c/o The PNC
Financial Services Group, Inc., One PNC Plaza, 249 Fifth Avenue, Pittsburgh, PA
15222-2707, and each such executive officer is a United States citizen.
The names, business addresses and principal occupations of the directors
of PNC Bank, National Association are set forth below:
Names Business Addresses Principal Occupations
----- ------------------ ---------------------
Paul W. Chellgren Ashland Inc. Retired Chairman and Chief Executive
Toebben Executive Center Officer
541 Buttermilk Pike, Suite 207
Crescent Springs, KY 41017
Robert N. Clay Clay Holding Company President and Chief Executive
Three Chimneys Farm Officer
P. O. Box 114
Midway, KY 40347
J.Gary Cooper Commonwealth National Bank
2214 St.Stephens Road Chairman and Chief Executive
Mobile, AL 36617 Officer
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(2) Mr. Rohr is the President of PNC Bancorp, Inc. Mr. Rohr is an executive
officer and director of each of The PNC Financial Services Group, Inc. and PNC
Bank, National Association. The required information with respect to Mr. Rohr is
provided elsewhere in this Item 2. Connie Bond Stuart is the Chairwoman of PNC
Bancorp, Inc. and Maria C. Schaffer serves as Controller and Treasurer of PNC
Bancorp, Inc. The required information with respect to Messes. Schaffer and
Stuart is provided in footnote 3 of this Item 2.
3
Names Business Addresses Principal Occupations
----- ------------------ ---------------------
George A. Davidson, Jr. Dominion Resources, Inc. Retired Chairman
Dominion Tower, 21st Floor
625 Liberty Avenue
Pittsburgh, PA 15222-3199
Joseph C. Guyaux The PNC Financial Services Group, Inc. President
One PNC Plaza
249 Fifth Avenue
Pittsburgh, PA 15222-2707
Richard B. Kelson Alcoa Inc. Executive Vice President and
11th Floor Chief Executive Officer
390 Park Avenue
New York, NY 10022
Bruce C. Lindsay Brind-Lindsay & Co., Inc. Chairman and Managing
1926 Arch Street Director
Philadelphia, PA 19103-1444
Anthony A. Massaro Lincoln Electric Holdings, Inc. Chairman
22801 St. Clair Avenue
Cleveland, OH 44117
Thomas H. O'Brien The PNC Financial Services Group, Inc. Retired Chairman
One PNC Plaza
249 Fifth Avenue
Pittsburgh, PA 15222-2707
Jane G. Pepper Pennsylvania Horticultural Society President
5th Floor
100 N. 20th Street
Philadelphia, PA 19103-1495
James E. Rohr The PNC Financial Services Group, Inc. Chairman and Chief Executive
One PNC Plaza Officer
249 Fifth Avenue
Pittsburgh, PA 15222-2707
Lorene K. Steffes 9 Isabel's Way Independent Business Advisor and
Brookfield, CT 06804 Consultant
Dennis F. Strigl Verizon Wireless, Inc. President and Chief Executive
180 Washington Valley Road Officer
Bedminster, NJ 07921
4
Names Business Addresses Principal Occupations
----- ------------------ ---------------------
Stephen G. Thieke 5 McCarthy Court Retired Chairman, Risk Management
Farmingdale, NY 11735 Committee of JP Morgan Incorporated
Thomas J. Usher United States Steel Corporation Chairman and Chief Executive
61st Floor Officer
600 Grant Street
Pittsburgh, PA 15219-2800
Milton A. Washington AHRCO President and Chief Executive
5604 Baum Boulevard Officer
Pittsburgh, PA 15206
Helge H. Wehmeier c/o Bayer Corporation Vice Chairman
100 Bayer Road
Building 4
Pittsburgh, PA 15205-9741
Each of the foregoing directors except Mr. Wehmeier is a United States
citizen. Mr. Wehmeier is a citizen of Germany.
The names, business addresses and principal occupations of the directors
of The PNC Financial Services Group, Inc. are set forth below:(3)
Names Business Addresses Principal Occupations
----- ------------------ ---------------------
Paul W. Chellgren Ashland Inc. Retired Chairman and Chief Executive
Toebben Executive Center Officer
541 Buttermilk Pike, Suite 207
Crescent Springs, KY 41017
Robert N. Clay Clay Holding Company President and Chief Executive Officer
Three Chimneys Farm
P. O. Box 114
Midway, KY 40347
J. Gary Cooper Commonwealth National Bank Chairman and Chief Executive
2214 St.Stephens Road Officer
Mobile, AL 36617
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(3) The directors of PNC Bancorp, Inc. are William S. Demchak, Connie Bond
Stuart and Maria C. Schaffer. Mr. Demchak is an executive officer of The PNC
Financial Services Group, Inc. and the required information with respect to him
is provided elsewhere in this Item 2. The business address of each of Messes.
Stuart and Schaffer is PNC Bank, Delaware, 222 Delaware Avenue, Wilmington, DE
19801. The principal occupation of Ms. Stuart is President and Chief Executive
Officer of PNC Bank, Delaware, and the principal occupation of Ms. Schaffer is
Vice President, Controller, Secretary and Treasurer of PNC Bank, Delaware. Each
of Messes. Stuart and Schaffer is a United States citizen.
5
Names Business Addresses Principal Occupations
----- ------------------ ---------------------
George A. Davidson, Jr. Dominion Resources, Inc. Retired Chairman
Dominion Tower, 21st Floor
625 Liberty Avenue
Pittsburgh, PA 15222-3199
Richard B. Kelson Alcoa Inc. Executive Vice President and Chief
11th Floor Executive Officer
390 Park Avenue
New York, NY 10022
Bruce C. Lindsay Brind-Lindsay & Co., Inc. Chairman and Managing Director
1926 Arch Street
Philadelphia, PA 19103-1444
Anthony A. Massaro Lincoln Electric Holdings, Inc. Chairman
22801 St. Clair Avenue
Cleveland, OH 44117
Thomas H. O'Brien The PNC Financial Services Group, Inc. Retired Chairman
One PNC Plaza
249 Fifth Avenue
Pittsburgh, PA 15222-2707
Jane G. Pepper Pennsylvania Horticultural Society President
5th Floor
100 N. 20th Street
Philadelphia, PA 19103-1495
James E. Rohr The PNC Financial Services Group, Inc. Chairman and Chief Executive Officer
One PNC Plaza
249 Fifth Avenue
Pittsburgh, PA 15222-2707
Lorene K. Steffes 9 Isabel's Way Independent Business Advisor and
Brookfield, CT 06804 Consultant
Dennis F. Strigl Verizon Wireless, Inc. President and Chief Executive Officer
180 Washington Valley Road
Bedminster, NJ 07921
Stephen G. Thieke 5 McCarthy Court Retired Chairman, Risk Management
Farmingdale, NY 11735 Committee of JP Morgan Incorporated
6
Names Business Addresses Principal Occupations
----- ------------------ ---------------------
Thomas J. Usher United States Steel Corporation Chairman and Chief Executive
61st Floor Officer
600 Grant Street
Pittsburgh, PA 15219-2800
Milton A. Washington AHRCO President and Chief Executive
5604 Baum Boulevard Officer
Pittsburgh, PA 15206
Helge H. Wehmeier c/o Bayer Corporation Vice Chairman
100 Bayer Road
Building 4
Pittsburgh, PA 15205-9741
Each of the foregoing directors except Mr. Wehmeier is a United States
citizen. Mr. Wehmeier is a citizen of Germany.
ITEM 2 (d) During the last five years, none of the persons named in Items
2 (a) - (c) and (f) has been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors).
ITEM 2 (e) (i) On July 18, 2002, The PNC Financial Services Group, Inc.,
the ultimate parent of the Bank Constituent, announced that it had entered into
a written agreement with the Federal Reserve Bank of Cleveland ("Federal
Reserve") and that its principal subsidiary, the Bank Constituent, had entered
into a written agreement with the Office of the Comptroller of the Currency
("OCC"). These agreements addressed such issues as risk, management and
financial controls. On September 15, 2003 and September 29, 2003, respectively,
the Federal Reserve lifted its formal written agreement with The PNC Financial
Services Group, Inc.and the OCC lifted its formal written agreement with the
Bank Constituent. These actions brought the agreements to a conclusion.
(ii) On June 2, 2003, PNC ICLC Corp. ("PNCICLC"), an indirect
non-bank subsidiary of The PNC Financial Services Group, Inc., entered into a
Deferred Prosecution Agreement (the "Deferred Prosecution Agreement") with the
United States Department of Justice, Criminal Division, Fraud Section (the
"Department of Justice") relating to PNCICLC's actions in connection with the
three PAGIC transactions that were entered into in 2001. On June 23, 2004, the
United States District Court for the Western District of Pennsylvania granted
the Department of Justice's motion seeking dismissal with prejudice of the
criminal complaint originally filed with the District Court on June 2, 2003,
pursuant to the terms of the Deferred Prosecution Agreement.
The Deferred Prosecution Agreement, the criminal complaint filed
thereunder and the District Court's Order of June 23, 2004 are described in
detail in The PNC Financial Services Group, Inc.'s Current Reports on form 8-K
filed on June 2, 2003 and June 23, 2004, each of which is incorporated herein by
reference, which reference is qualified in its entirety by reference to the
actual text of such Reports. The 8-K (including the exhibits thereto) is
accessible on the SEC's website at http://www.sec.gov.
7
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
The Trust Shares were deposited in the Voting Trust 1993 under the terms
and conditions set forth in the Voting Trust Agreement, and no consideration was
paid therefor. No consideration was paid or received by the Voting Trustee or
any Constituents in connection with the termination of the Voting Trust.
An aggregate of 631,017 shares which had been subject to the Voting Trust
are pledged to PNC by one revocable Family Trust as collateral for a loan to the
settlor of one Constituent Trust in the aggregate principal amount of
$2,710,399.83 as of July 8, 2004. Pursuant to the Voting Trust Agreement, PNC
retained a security interest in such shares.
ITEM 4. PURPOSE OF TRANSACTION
PNC has had longstanding relationships with the Company, the Glatfelter
Family and the Family Trusts through one or more of its roles as a lender,
financial advisor, trustee, executor, agent and custodian. In 1993, PNC
determined to effect and administer the Voting Trust in an effort to promote the
education of the members of the Glatfelter Family regarding the Company's
business, especially among the younger generations of the Glatfelter Family. PNC
believed that the Voting Trust would provide Company management with a means of
communicating, through the Constituents, with a wide range of Members of the
Glatfelter Family, which should encourage Company management to pursue the
Company's long-term strategic plans that are supported by the Voting Trust, for
the benefit of all shareholders of the Company.
At the request of PNC and representatives of the Glatfelter Family, the
Company has filed with the Securities and Exchange Commission a Registration
Statement on Form S-3 (No. 333-117233) for the sale by PNC, as trustee and
co-trustee of substantially all of the Constituent Trusts and other Family
Trusts, certain other co-trustees of such Constituent and Family Trusts, and
certain other shareholders of the Company (collectively, the "Selling
Shareholders") in a public offering (the "Offering") of 5,135,953 shares of
Glatfelter Stock that had been held in the Voting Trust (the "Registered
Shares"), which represents approximately 49% of the Trust Shares, pursuant to
the Registration Statement and an Underwriting Agreement, to be entered into
among the Company, the Selling Shareholders and Credit Suisse First Boston LLC,
as representative (the "Representative") of the Underwriters named therein (the
"Underwriters"), containing customary terms and conditions and substantially in
the form to be filed as an exhibit to the Registration Statement (the
"Underwriting Agreement").
Coincident with the filing by the Company of the Registration Statement,
the Voting Trust has been terminated by unanimous written consent of all of the
Constituents filed with the Trust Agent on July 8, 2004.
The identity of the Family Trusts (including the Constituent Trusts that
had been subject to the Voting Trust) for which shares of Glatfelter Stock are
proposed to be sold in the Offering, the trustees and co-trustees of such Trusts
and the number of shares of Glatfelter Stock held by each such Trust prior to
and at the completion of the Offering, are set forth in the Company's Prospectus
contained in the Registration Statement under the heading PRINCIPAL AND SELLING
SHAREHOLDERS and the footnotes thereto, to which reference is hereby made.
None of the persons named in Item 2 above has any present plans which
relate to or would result in: (i) the acquisition by any person of additional
securities of the Company or, except as set forth above, the disposition of
securities of the Company, except in amounts which are not material;
8
(ii) an extraordinary corporate transaction, such as a merger, reorganization or
liquidation, involving the Company or any of its subsidiaries; (iii) a sale or
transfer of a material amount of assets of the Company or any of its
subsidiaries; (iv) any change in the present board of directors or management of
the Company, including any plans or proposals to change the number or term of
directors or to fill any existing vacancies on the board; (v) any material
change in the present capitalization or dividend policy of the Company; (vi) any
other material change in the Company's business or corporate structure; (vii)
changes in the Company's charter, bylaws or instruments corresponding thereto or
other actions which may impede the acquisition of control of the issuer by any
person; (viii) causing a class of securities of the Company to be delisted from
a national securities exchange or to cease to be authorized to be quoted in an
inter-dealer quotation system of a registered national securities association;
(ix) a class of equity securities of the Company becoming eligible for
termination of registration pursuant to Section 12(8)(4) of the Securities
Exchange Act of 1934, as amended; or (x) any action similar to any of those
enumerated above.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
At the time of the termination of the Voting Trust, the Voting Trustee had
sole voting power as to the 12,038,557 Trust Shares, which represent
approximately 27.5% of the outstanding shares of Glatfelter Stock.(4) The Voting
Trustee did not have any dispositive power as to the Trust Shares.
The Voting Trust provided that the Trust Shares could be voted only by the
Voting Trustee in accordance with the affirmative vote of a majority of the
votes cast by the Constituents pursuant to a weighted formula in which (i) each
Group Constituent was entitled to cast such number of votes as was equal to the
number of Trust Shares in which the Group represented by such Group Constituent
had an interest as a settlor of a revocable Family Trust, or as a current income
beneficiary (or, if there were none, as a current distribution beneficiary) of
an irrevocable Family Trust, and (ii) the Bank Constituent was entitled to cast
such number of votes as was equal to the number of Trust Shares in which any
irrevocable Constituent Trust had an interest.
Under the Voting Trust Agreement, none of the Constituents, as such, had
any dispositive power as to the Trust Shares. Except as otherwise provided in
this paragraph, none of the Constituents, as such, had any voting power as to
the Trust Shares. PNC had certain powers that may have been construed as shared
voting power as to the Trust Shares. As a result of its status as the Bank
Constituent, PNC had the power to cast a considerable number of votes in any
determination by the Voting Trustee. While its votes as Bank Constituent alone
may not have been determinative of Voting Trustee action, PNC, as the Trust
Agent of the Voting Trust (the "Trust Agent"), for a time also occupied the
position of a Group Constituent during the period when a vacancy existed in that
position. In such capacity, PNC, as the Trust Agent, cast the votes of that
Group Constituent, as well as its own votes as the Bank Constituent, in
determining Voting Trustee action, and might well then have been in a position
to determine such action for such period. The Trust Agent also had broad
administrative powers and discretionary authority over the timing of certain
withdrawals of Trust Shares.
Under the Voting Trust Agreement, the Constituent Trusts had the right to
withdraw the Trust Shares they deposited in the Voting Trust at any time upon
fulfillment of certain conditions. Thus, each Constituent Trust, and its trustee
or co-trustees, could have been deemed to have retained voting and dispositive
power over the Trust Shares deposited by it. In addition, certain
---------------
(4) The percentage of outstanding shares of Common Stock is based on the shares
held by the Voting Trustee on July 8, 2004 and the total number of outstanding
shares as of May 31, 2004 as reported in the P.H. Glatfelter Company's
Registration Statement on Form S-3 filed on July 8, 2004.
9
Trust Shares were subject to various rights to acquire as set forth in various
Constituent Trust documents and other documents ancillary thereto. Thus, the
persons who possessed such rights might also have been deemed to have had voting
and dispositive power over the Trust Shares subject to such rights.
Katherine G. Costello, a former Group Constituent, has beneficial
ownership of 800,482 Trust Shares held by one Constituent Trust (the "Costello
Trust"). She has the right to revoke and to withdraw such Trust Shares from the
Costello Trust, at which point she would have sole voting and dispositive power
as to such Trust Shares. PNC, as sole trustee of the Costello Trust, currently
has sole voting and dispositive power as to such Trust Shares. Ms. Costello may
also be deemed to have shared voting and dispositive power, as co-trustee with
PNC, as to 14,500 Trust Shares held by four other Constituent Trusts.
William M. Eyster, II, a former Group Constituent, has beneficial
ownership of 1,398,676 Trust Shares held by one Constituent Trust (the "Eyster
Trust"). He has the right to revoke and to withdraw such Trust Shares from the
Eyster Trust, at which point he would have sole voting and dispositive power as
to such Trust Shares. PNC, as sole trustee of the Eyster Trust, currently has
sole voting and dispositive power as to such Trust Shares. All of such Trust
Shares were distributed to Mr. Eyster upon the termination of seven separate
Family Trusts as a result of the death of his mother, Elizabeth G. Rosenmiller,
on September 23, 2003. Upon Mr. Eyster's direction, the shares were deposited to
the Eyster Trust on June 7 and 8, 2004. Mr. Eyster may also be deemed to have
shared voting and dispositive power, as co-trustee with PNC, as to 28,000 Trust
Shares held by another Constituent Trust. In addition, Mr. Eyster has sole
voting and dispositive power as to 5,000 other shares of Glatfelter Stock.(5)
Elizabeth Glatfelter, a former Group Constituent, has beneficial ownership
of 876,980 Trust Shares held by one Constituent Trust (the "Elizabeth Glatfelter
Trust"). She has the right to revoke the Elizabeth Glatfelter Trust and to
withdraw such Trust Shares, at which point she would have sole voting and
dispositive power as to such Trust Shares. PNC, as sole trustee of the Elizabeth
Glatfelter Trust, currently has sole voting and dispositive power as to such
Trust Shares. Ms. Glatfelter may also be deemed to have shared voting and
dispositive power, as co-trustee with PNC as to 39,508 Trust Shares held by two
other Constituent Trusts.
Susan M. G. Messersmith, a former Group Constituent, has beneficial
ownership of 216 Trust Shares held by one Constituent Trust (the "Messersmith
Trust"). She has the right to revoke and to withdraw such Trust Shares from the
Messersmith Trust, at which point she would have sole voting and dispositive
power as to such Trust Shares. PNC is co-trustee of the Messersmith Trust, and
as such may be deemed to have shared voting and dispositive power as to such
Trust Shares. Ms. Messersmith may also be deemed to have shared voting and
dispositive power, as co-trustee with PNC as to 11,360 Trust Shares held by two
other Constituent Trusts.
Irene G. Simonsen, a former Group Constituent, withdrew 363,408 shares
from one Constituent Trust on December 26, 2003 and after that date had sole
voting and dispositive power as to such shares. She currently has no interest in
any Trust Shares.
PNC, as sole trustee of 37 Constituent Trusts, had sole voting and
dispositive power as to 8,462,450 Trust Shares, and as co-trustee of 35
Constituent Trusts may be deemed to have shared
---------------
(5) PNC holds 16,933 shares of common stock for Janet V. Eyster, spouse of
William M. Eyster, in an investment account in her name. She has the right to
withdrawn such shares, at which point she would have sole voting and dispositive
powers. PNC, as investment advisor, currently has sole voting and dispositive
power with respect to such shares.
10
voting power as to 3,305,963 Trust Shares and shared dispositive power as to
3,576,107 Trust Shares. The PNC Financial Services Group, Inc., as the parent of
PNC, may be deemed to have the same beneficial ownership as to the Trust Shares
as PNC.(6) Certain Trust Shares as to which PNC has beneficial ownership may
also be beneficially owned by the persons serving as the Group Constituents as
set forth in this Item (5).
In addition, the Trust Shares that are in the Voting Trust may also be
beneficially owned by certain members of the Glatfelter Family who are not Group
Constituents; 13 such members of the Glatfelter Family are co-trustees, along
with PNC, of one or more of the Family Trusts and may be deemed to have
beneficial ownership as to the Trust Shares held by such Trusts; 13 such members
of the Glatfelter Family have a right to withdraw an aggregate of 4,022,220
Trust Shares held in 15 Family Trusts;(7) one such member of the Glatfelter
Family has a right to purchase 243,816 Trust Shares held in one Family Trust of
which PNC is sole trustee, and an annual, non-cumulative right of withdrawal
equal to the greater of 5% or $5,000, which relates to 86,316 Trust Shares held
by four Family Trusts;(8) and nine such members of the Glatfelter Family, each a
beneficiary of a separate Family Trust, have a 60-day non-cumulative right of
withdrawal after a gift has been made to the respective Family Trust in respect
to an amount equal to the annual gift tax exclusion, which rights, collectively,
relate to 55,788 Trust Shares.
PNC has sole voting and dispositive power as to an aggregate of 2,310,600
shares of Glatfelter Stock which are held of record by ten other Family Trusts,
and the sole voting with no dispositive power as to 270,785 shares held of
record by three other members of the Glatfelter Family in investment advisory
accounts.
In addition to the beneficial ownership of the Trust Shares and the
Glatfelter Stock held of record by the other Family Trusts, as described above,
The PNC Financial Services Group, Inc. has sole voting and dispositive power as
to 119,094 shares of Glatfelter Stock, sole voting and no dispositive power as
to 11,311 shares of Glatfelter Stock and may be deemed to have shared voting and
dispositive power as to 7,518 shares of Glatfelter Stock (collectively, the
"Non-Family Shares"). All of the Non-Family Shares are held of record by PNC in
the ordinary course of business, as sole trustee, co-trustee or executor of
fiduciary accounts other than the Family Trusts and the other Family Trusts, as
sole trustee or co-trustee of charitable trusts, or as custodian or agent.
The PNC Financial Services Group, Inc. and PNC, as trustee, executor,
custodian and agent, report their respective beneficial ownership of the Trust
Shares, the shares of Glatfelter Stock held of record by the other Family
Trusts, and the Non-Family Shares on a Schedule 13G filed with the Securities
and Exchange Commission.
Except as set forth in this Item 5, none of the persons named in Item 2
Family Trusts. has had any transactions in shares of the Glatfelter Stock in the
last 60 days.
---------------
(6) The same is true of PNC Bancorp, Inc. See notes 1, 2, 3 above.
(7) One Family Member has a right to withdraw 8,872 Trust Shares from a Family
Trust upon 90 days notice. In respect of all other Trust Shares, the withdrawal
right may be exercised at any time.
(8) This Family Member also has a right to purchase 2,306,178 shares of Common
Stock that are held of record by nine other
11
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO SECURITIES OF THE ISSUER
In connection with the Offering, each of the Selling Shareholders has
executed and delivered to the Company (i) an Irrevocable Power of Attorney,
dated as of July 8, 2004 (the "Power of Attorney"), granting to John C. van
Roden, Jr., the Senior Vice President and Chief Financial Officer of the
Company, as attorney in fact, on the terms and conditions and subject to the
limitations set forth therein, the power to enter into, and sell the Registered
Shares to the Underwriters on behalf of the Selling Shareholders pursuant to,
the Underwriting Agreement; and (ii) a Custody Agreement, dated as of July 8,
2004 (the "Custody Agreement"), with Mellon Investor Services LLC, as Custodian
(the "Custodian"), pursuant to which the Registered Shares have been delivered
to the Custodian by PNC for delivery to the Underwriters pursuant to the
Underwriting Agreement; and (iii) a Lockup Agreement, dated as of July 8, 2004
(the "Lockup Agreement") with the Underwriters, under which the Selling
Shareholders have agreed with the Underwriters not to sell any shares of
Glatfelter Stock, other than the Registered Shares sold in the Offering, except
as otherwise provided in the Lockup Agreement, without the prior written consent
of the Company and the Underwriters for a period of 180 days from the date the
Registration Statement becomes effective under the Securities Act (the
"Effective Date"), and not to seek the registration under the Securities Act of
1933 of any such shares of Glatfelter Stock held by the Selling Shareholders for
a period of 365 days from the Effective Date. The Power of Attorney, Custody
Agreement and Lockup Agreement generally provide that they are subject to
termination if the Underwriting Agreement shall not have been entered into by
October 31, 2004, or if the Company shall have abandoned the Offering.
In addition, PNC, as trustee or co-trustee of the Family Trusts and the
other Selling Shareholders, has agreed with the Company pursuant to a
Reimbursement Agreement, dated June 11, 2004 (the "Reimbursement Agreement"), to
reimburse the Company out of the assets of the Family Trusts selling shares in
the Offering for substantially all of the reasonable expenses of the Company
associated with the Offering.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
P. H. Glatfelter Family Shareholders' Voting Trust Agreement, dated as of
July 1, 1993, was filed as an exhibit to the Initial Schedule 13D (File No.
5-12158) and is hereby incorporated by reference.
The Registration Statement was filed by the Company with the Commission on
July 8, 2004, to which the Underwriting Agreement is to be attached as an
exhibit. The forms of Power of Attorney, Custody Agreement, Lockup Agreement and
Reimbursement Agreement are attached hereto as Exhibits "A", "B", "C" and "D",
respectively, and incorporated herein by reference.
12
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
P.H. Glatfelter Family Shareholders' Voting
Trust established pursuant to agreement
dated as of July 1, 1993.
PNC Bank, National Association,as Trust Agent
July 22, 2004 By: /s/ LINDA R. MANFREDONIA
------------------------
Linda R. Manfredonia
Senior Vice President
13
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Voting Trustee of P.H. Glatfelter Family
Shareholders' Voting Trust established
pursuant to agreement dated as of July 1,1993.
PNC Bank, National Association,as Trust Agent
July 22, 2004 By: /s/ LINDA R. MANFREDONIA
------------------------
Linda R. Manfredonia
Senior Vice President
14
EXHIBIT A
TO
SCHEDULE 13D
P.H. GLATFELTER COMPANY
PUBLIC OFFERING OF COMMON STOCK
IRREVOCABLE POWER OF ATTORNEY OF SELLING SHAREHOLDER
John van Roden
c/o 96 S. George Street, Suite 500
York, Pennsylvania 17401
The undersigned shareholder of P.H. Glatfelter Company, a Pennsylvania
corporation (the "Company"), understands that it is contemplated that certain
shareholders of the Company, including the undersigned ("Selling Shareholders"),
will sell Common Stock, $0.01 par value ("Common Stock"), of the Company to
certain underwriters (the "Underwriters") represented by Credit Suisse First
Boston LLC ("CSFB", or the "Representative") pursuant to the Underwriting
Agreement referred to below, and that the Underwriters propose to offer and sell
such Common Stock to the public (the "Offering"). The undersigned also
understands that, in connection with such offer and sale, the Company has filed
a Registration Statement ("Registration Statement") with the Securities and
Exchange Commission ("Commission") to register under the Securities Act of 1933
the shares to be offered.
Concurrently with the execution and delivery of this Power of Attorney,
the undersigned is also executing and delivering a Custody Agreement in
substantially the form attached as Annex I (the "Custody Agreement") pursuant to
which certificates for at least the number of shares of Common Stock to be sold
by the undersigned as set forth opposite the signature of the undersigned at the
end of this instrument are being deposited with Mellon Investor Services LLC, as
custodian ("Custodian"), and is furnishing an opinion, dated the date of
delivery of this Power of Attorney and such Custody Agreement, of counsel for
the undersigned addressed to the Underwriters and to the Company, to the effect
set forth in Annex II.
1. In connection with the foregoing, the undersigned hereby irrevocably
constitutes and appoints John van Roden as attorney-in-fact (the "Attorney") of
the undersigned, with full power and authority to act, including full power of
substitution, in the name of and for and on behalf of the undersigned with
respect to all matters arising in connection with the sale of Common Stock by
the undersigned pursuant to the Offering including, but not limited to, the
power and authority to take any and all of the following actions:
(a) following receipt of written instructions from the Company, the
Attorney shall, sell, assign and transfer to the Underwriters, in
accordance with the terms of the Underwriting Agreement (as defined
herein), the Maximum Number of Shares (as set forth on the signature page
hereof) of Common Stock of the Company including, if the Underwriters
shall exercise their over-allotment option contained in the Underwriting
Agreement and/or if the Company elects to increase the size of the
Offering pursuant to Rule 462(b), up to the Maximum Number of Optional
Shares (as set forth on the signature page hereof), and represented by the
certificates deposited by the undersigned with the Custodian pursuant to
the Custody Agreement, or such lesser number as the Attorney shall be
instructed (in writing by the Company), at a purchase price per share to
be paid by the Underwriters, as determined by negotiation among the
Company and the Representative, but at the same price per share to be paid
by the Underwriters to each of the other Selling Shareholders for the
Common Stock sold by it;
(b) following receipt of written instructions from the Company, the
Attorney shall, for the purpose of effecting such sale, make, execute,
deliver and perform the undersigned's obligations under the Underwriting
Agreement among the Company, the Selling Shareholders and the Underwriters
substantially in the form filed as an exhibit to the Registration
Statement (such agreement, in the form in which executed, being herein
called the "Underwriting Agreement"), receipt of a draft of which is
hereby acknowledged, containing such additions to or changes in the terms,
provisions and conditions thereof as the Attorney in his sole discretion
shall determine, including, subject to the limitation set forth in
paragraph 1(a) hereof, the purchase price per share to be paid by the
Underwriters and including any additions to or changes in the terms,
provisions and conditions thereof relating to the public offering of such
Common Stock by the Underwriters; provided, however, that the Attorney
shall not agree to change or amend the Underwriting Agreement in such a
way as to impose additional representations or warranties on the Selling
Shareholders, or to impose other obligations on the Selling Shareholders
that are materially more onerous than the form of Underwriting Agreement
first filed as an exhibit to the Registration Statement;
(c) following receipt of written instructions from the Company, to
give such orders and instructions to the Custodian and the transfer agent
for the Common Stock as the Attorney in his sole discretion shall
determine, with respect to (i) the transfer of the Common Stock on the
books of the Company in order to effect the sale to the Underwriters,
including giving the name or names in which new certificates for such
Common Stock are to be issued and the denominations thereof, (ii) the
delivery to or for the account of the Underwriters of certificates for
such Common Stock against receipt by the Custodian of the purchase price
to be paid therefor, (iii) the payment by the Custodian out of the
proceeds of such sale of any expenses that are to be borne by the
undersigned in connection with the offer, sale and delivery of the Common
Stock, (iv) the remittance to the undersigned of new certificates
representing that number of shares of Common Stock, if any, that is in
excess of the number of shares of Common Stock sold and to be sold at any
subsequent Closing Date by the undersigned to the Underwriters;
(d) following receipt of written instructions from the Company, to
retain legal counsel in connection with any and all matters referred to
herein (which counsel may, but need not, be counsel for the Company);
(e) following receipt of written instructions from the Company, to
execute and deliver any amendment to the Custody Agreement; provided,
however, that no such amendment shall (i) increase the number of shares of
Common Stock to be sold by the undersigned above the Maximum Number of
Shares specified below (including, if the Underwriters shall exercise
their over-allotment option contained in the Underwriting Agreement and/or
if the Company elects to increase the size of the Offering pursuant to
Rule 462(b), the Maximum Number of Optional Shares) or (ii) impose
materially more onerous obligations on the Selling Shareholders;
(f) following receipt of written instructions from the Company, to
agree to the allocation of the expenses of the offering among the Company
and the Selling Shareholders, including the undersigned;
(g) following receipt of written instructions from the Company, to
endorse (in blank or otherwise) on behalf of the undersigned the
certificate or certificates representing the Common Stock to be sold by
the undersigned, or a stock power or powers attached to such certificate
or certificates;
(h) following receipt of written instructions from the Company, to
make, acknowledge, verify and file on behalf of the undersigned
applications, such documents, undertakings or reports as may be required
by law with state commissioners or officers administering state securities
laws; and
(i) following receipt of written instructions from the Company, to
make, exchange, acknowledge and deliver all such other contracts, powers
of attorney, orders, receipts, notices, requests, instructions,
certificates, letters and other writings, including communications to the
Commission, and amendments to the Underwriting Agreement, and in general
to do all things and to take all actions, that the Attorney in his sole
discretion may consider necessary or proper in connection with or to carry
out the aforesaid sale of Common Stock to the Underwriters and the public
offering thereof, as fully as could the undersigned if personally present
and acting; provided, however, that the Attorney shall not take any action
that will impose obligations on the Selling Shareholders that are
materially more onerous than the provisions of the Underwriting Agreement,
the Custody Agreement and this Power of Attorney.
2. This Power of Attorney and all authority conferred hereby are granted
and conferred subject to the interests of the Underwriters and in consideration
of those interests, and for the purpose of completing the transactions
contemplated by the Underwriting Agreement and this Power of Attorney. This
Power of Attorney and all authority conferred hereby shall be irrevocable and
shall not be terminated by the undersigned or by operation of law, whether by
the death or incapacity of the undersigned (if the undersigned is an
individual), by the death or incapacity of any trustee or executor or the
termination of any trust or estate (if the undersigned is a trust or an estate),
or by the dissolution or liquidation of any corporation or partnership (if the
undersigned is a corporation or partnership), or by the occurrence of any other
event. If any event described in the preceding sentence shall occur before the
delivery of the Common Stock to be sold by the undersigned under the
Underwriting Agreement, certificates for such Common Stock shall be delivered by
or on behalf of the undersigned in accordance with the terms and conditions of
the Underwriting Agreement and the Custody Agreement, and all other actions
required to be taken under the Underwriting Agreement and the Custody Agreement
shall be taken,
and action taken by the Attorney pursuant to this Power of Attorney shall be as
valid as if such event had not occurred, whether or not the Custodian, the
Attorney, or any one of them, shall have received notice of such event.
Notwithstanding the foregoing, if (i) the Underwriting Agreement shall not
be entered into and the transactions contemplated thereby shall not be
consummated prior to October 31, 2004 or (ii) the undersigned has received
written notification from the Company that the Offering has been abandoned, then
from and after such date or receipt of such notice, the undersigned shall have
the power to revoke all authority hereby conferred by giving notice on or
promptly after such date to the Attorney, with a copy to the Custodian, that
this Power of Attorney has been terminated; subject, however, to all lawful
action done or performed by the Attorney, pursuant to this Power of Attorney
prior to the actual receipt of such notice. If the undersigned revokes the
authority hereby conferred due to the circumstances described in (ii) above, the
notice provided by the undersigned to the Attorney shall include a copy of the
Company's notice to the undersigned that the Offering has been abandoned.
The undersigned has entered into a lock-up agreement with CSFB dated the
date hereof (the "Lock-Up Agreement"). Under the terms of the Lock-Up Agreement,
the undersigned has agreed to certain restrictions with respect to the sale,
pledge or disposition of Common Stock held by the undersigned. The Lock-Up
Agreement provides that the undersigned's Common Stock may be released from the
terms of the Lock-Up Agreement in certain corporate transactions or in the case
of a fully-financed tender offer. If Common Stock of the undersigned is released
from the Lock-Up Agreement because of such a corporate transaction or tender
offer, then, upon receipt of written notice to you of the undersigned (with a
copy to the Company and the CSFB) you shall provide written notice to the
Custodian, directing the Custodian to release and return such number of Common
Stock as has been released from the Lock-Up Agreement.
3. The Attorney shall be entitled to act and rely upon any statement,
request, notice or instruction respecting this Power of Attorney given to the
Attorney by the undersigned; provided, however, that the Attorney shall not be
entitled to act on any statement or notice to the Attorney with respect to a
Closing Date under the Underwriting Agreement, or with respect to the
termination of the Underwriting Agreement, or advising that the Underwriting
Agreement shall not have been executed and delivered, unless such statement or
notice shall have been confirmed in writing to the Attorney by CSFB.
4. Except for circumstances involving the Attorney's gross negligence or
wilfull misconduct, the undersigned agrees to hold the Attorney free and
harmless from any and all loss, damage or liability that they may sustain as a
result of any action taken in good faith hereunder. It is understood that the
Attorney shall serve without compensation.
5. In acting hereunder, the Attorney may rely on the representations,
warranties and agreements of the undersigned made in the Custody Agreement.
6. THIS POWER OF ATTORNEY SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
Date:
Maximum Number of Shares ______________________________
of Common Stock to be /s/
sold to the Underwriters: ______________________________
As a co-trustee of the trusts
set forth on Schedule A
_________ shares
Including: Maximum Number of Optional PNC Bank, National Association As
Shares to be sold to Underwriters: trustee or co-trustee of the trusts
set forth on Schedule A, and not in
its corporate capacity
_________ shares
By:___________________________
Margaret A. West
Senior Vice President
EXHIBIT B
TO
SCHEDULE 13D
P.H. GLATFELTER COMPANY
PUBLIC OFFERING OF COMMON STOCK
CUSTODY AGREEMENT
Mellon Investor Service LLC
One Mellon Center--500 Grant Street
Pittsburgh, PA 15250--0001
Dear Sirs:
There are delivered to you herewith, and you acknowledge receipt of, one
or more certificates, in negotiable and proper deliverable form (with the
signature guaranteed by a bank, trust company, broker, dealer, municipal
securities dealer, government securities dealer or broker, credit union, a
national securities exchange, registered securities association or clearing
agency, or a savings institution that is a participant in a Securities Transfer
Association recognized program or by a Medallion Signature Guarantor, or
accompanied by a duly executed stock power or powers, in blank, bearing the
signature of the undersigned so guaranteed), representing no less than the
number of issued and outstanding shares of Common Stock, $0.01 par value (the
"Common Stock"), of P.H. Glatfelter Company, a Pennsylvania corporation (the
"Company"), set forth opposite the signature of the undersigned at the end of
this letter. The undersigned agrees to deliver to the Attorney (as defined
herein) or to you such additional documentation as the Attorney or the Company
or Credit Suisse First Boston LLC ("CSFB") or you or any of their respective
counsel may request to effectuate or confirm compliance with any of the
provisions hereof, of the Company's Articles of Incorporation or of the
Underwriting Agreement (as defined herein), all of the foregoing to be in form
and substance satisfactory in all respects to the Attorney and you. The
certificates for the Common Stock are to be held by you as Custodian for the
account of the undersigned and are to be disposed of by you in accordance with
this Custody Agreement. You acknowledge that you are also the Company's transfer
agent for its Common Stock.
Concurrently with the execution and delivery of this Custody Agreement,
the undersigned has executed and delivered an irrevocable power of attorney
("Power of Attorney") to John van Roden or his duly designated substitute (the
"Attorney"), authorizing the Attorney to sell from the number of shares of
Common Stock represented by the certificates deposited with you hereunder, up to
that number of shares of Common Stock set forth opposite the signature of the
undersigned at the end of this letter (including any Optional Shares (as defined
in the Underwriting Agreement)), or such lesser number as the Attorney may
determine, and for that purpose to enter into and perform an underwriting
agreement (the "Underwriting Agreement"), among the Company, certain
shareholders of the Company including the undersigned (the "Selling
Shareholder"), and certain underwriters (the "Underwriters") represented by CSFB
(the "Representative").
In addition the undersigned has completed and signed the attached
Substitute Form W-9.
You are authorized and directed (a) to hold the certificates deposited
with you hereunder in your custody and (b) following receipt of written
instructions from the Company, on each closing date specified in the
Underwriting Agreement at which the undersigned is selling any shares of Common
Stock (each, a "Closing Date"), you shall take all necessary action as set forth
in such written instructions (i) to cause the Common Stock to be transferred on
the books of the Company into such names as the Attorney or the Underwriter
shall have instructed you in writing and to exchange the certificates
representing such Common Stock for new certificates for such Common Stock
registered in such names and in such denominations as the Attorney or CSFB shall
have instructed you, and (ii) to deliver such new certificates to CSFB for the
account of the Underwriters, against payment of the purchase price for such
Common Stock, and give receipt for such payment, (iii) to pay such expenses,
including transfer taxes, as you may be instructed in writing to pay by the
Attorney, and, if instructed by the Attorney to do so, remit to the undersigned
the balance, after deducting such expenses, of the amount received by you as
payment for such Common Stock, and (iv) furnish to the undersigned a Form 1099
on or before the next following January 31. With such remittance you shall also
promptly deliver or cause to be delivered to the undersigned new certificates
(which may bear appropriate legends) representing the number of shares of Common
Stock deposited hereunder (if any) that are in excess of the number of shares of
Common Stock sold (and to be sold at any
subsequent Closing Date) by the undersigned to the Underwriters, which number
shall be provided to you by written notice from the Company.
If the Underwriting Agreement shall not be entered into and the
transactions contemplated thereby shall not be consummated prior to October 31,
2004 then, notwithstanding the terms of the fourth paragraph next below, upon
the written request to you of the Attorney or the undersigned (accompanied in
the latter case by written notice of termination of the Power of Attorney
addressed to the Attorney with a copy to you) on or promptly after that date,
you are to return to the undersigned the certificates for the Common Stock
deposited with you hereunder; provided however that if no such written request
is received by you on or before November 15, 2004, you shall immediately return
such certificates to the undersigned. In addition, upon receipt of written
notice from the Company notifying you that the proposed offering of the
Company's Common Stock has been abandoned, you are to return to the undersigned
the certificates for the Common Stock deposited with you hereunder.
The undersigned has entered into a lock-up agreement with CSFB dated the
date hereof (the "Lock-Up Agreement"). Under the terms of the Lock-Up Agreement,
the undersigned has agreed to certain restrictions with respect to the sale,
pledge or disposition of Common Stock held by the undersigned. The Lock-Up
Agreement provides that the undersigned's Common Stock may be released from the
terms of the Lock-Up Agreement in certain corporate transactions or in the case
of a fully-financed tender offer. If Common Stock of the undersigned is released
from the Lock-Up Agreement because of such a corporate transaction or tender
offer, then, notwithstanding the terms of the third paragraph next below, upon
the written notice to you of the Attorney (with a copy to the Company and CSFB)
such notice to specify the numbers of Common Stock that have been released from
the Lock-Up Agreement, you are to promptly return to the undersigned the
certificates for such number of Common Stock specified in the notice described
herein.
Under the terms of the Power of Attorney, the authority conferred thereby
is granted, made and conferred subject to and in consideration of the interests
of the Underwriters and, except as set forth in the paragraph two above, is
irrevocable and not subject to termination by the undersigned or by operation of
law, and the obligations of the undersigned under the Underwriting Agreement are
similarly not subject to termination and shall remain in full force and effect
until such date. Accordingly, the certificates deposited with you hereunder and
this Custody Agreement and your authority hereunder are subject to the interests
of the Underwriters, and this Custody Agreement and your authority hereunder are
irrevocable and are not subject to termination, except as set forth in the
preceding paragraph, by the undersigned or by operation of law, whether by the
death or incapacity of the undersigned (if the undersigned is an individual), by
the death or incapacity of any trustee or executor or the termination of any
trust or estate (if the undersigned is a trust or an estate), or by the
dissolution or liquidation of any corporation or partnership (if the undersigned
is a corporation or partnership) or the occurrence of any other event. If any
event referred to in the preceding sentence should occur before the delivery of
the Common Stock to be sold by the undersigned under the Underwriting Agreement,
certificates for such Common Stock shall, except as specifically provided in the
Underwriting Agreement, be delivered by you on behalf of the undersigned in
accordance with the terms and conditions of the Underwriting Agreement and this
Custody Agreement, and action taken by you pursuant to this Custody Agreement
shall be as valid as if such event had not occurred, whether or not you or the
Attorney shall have received notice of such event.
Until payment of the purchase price pursuant to the Underwriting Agreement
has been made to the undersigned by or for the account of the Underwriters, the
undersigned shall remain the owner of the Common Stock delivered to you
hereunder and shall have the right to vote such Common Stock and all other
Common Stock, if any, represented by the certificates deposited with you
hereunder and to receive any and all dividends and distributions thereon.
You shall be entitled to act and rely upon any statement, request, notice
or instruction respecting this Custody Agreement given to you by the Attorney;
provided, however, that you shall not be entitled to act on any statement or
notice to you with respect to a Closing Date under the Underwriting Agreement,
or with respect to the termination of the Underwriting Agreement, or advising
that the Underwriting Agreement shall not have been executed and delivered,
unless such statement or notice shall have been confirmed in writing to you by a
Vice President or Managing Director of CSFB.
Whenever in the performance of your duties under this Custody Agreement
you shall deem it necessary or desirable that any fact or matter be proved,
established or explained by the undersigned or an Attorney prior to taking,
suffering or omitting any action hereunder, such fact or matter (unless other
evidence in respect thereof be herein specifically prescribed) may be deemed to
be conclusively proved and established by a certificate signed by the
undersigned or by an Attorney, as the case may be, and delivered to you; and
such certificate shall be full and complete authorization and protection to you
and you shall incur no liability for or in respect of any action taken, suffered
or omitted by it under the provisions of this Custody Agreement in reliance upon
such certificate.
It is understood that you assume no responsibility or liability to any
person other than to deal with the certificates deposited with you hereunder and
to deliver to the undersigned a Form 1099 in accordance with the provisions of
this
Custody Agreement You make no representations with respect to and shall have no
responsibility for the registration statement relating to the proposed public
offering of Common Stock or the prospectus contained therein or, except as
herein expressly provided, for any aspect of the proposed public offering of
Common Stock. You shall be liable hereunder to the undersigned, the Company, the
Representative, the Attorney, the Underwriters, the Selling Shareholder or any
other person only for your own gross negligence or bad faith (which gross
negligence or bad faith must be determined by a final, non-appealable order,
judgment, decree or ruling of a court of competent jurisdiction). The
undersigned agrees to pay to you reasonable compensation for all services
rendered by you hereunder and, from time to time, on demand, your reasonable
expenses and counsel fees and other disbursements incurred in the preparation,
administration, delivery, execution and amendment of this Custody Agreement and
the exercise and performance of your duties hereunder. The undersigned agrees to
indemnify you for and to hold you harmless against any loss, liability or
expense incurred on your part arising out of or in connection with your acting
as Custodian under this Custody Agreement, and for the cost and expense of
defending against any claim of liability hereunder that is not due to your own
gross negligence or bad faith (which gross negligence or bad faith must be
determined by a final, non-appealable order, judgment, decree or ruling of a
court of competent jurisdiction). The undersigned agrees that you may consult
with legal counsel of your own choice (who may be counsel for the Company) and
you shall have full and complete authorization and protection for, and shall
incur no liability for or in respect of, any action taken, suffered or omitted
by you hereunder in accordance with the advice or opinion of such legal counsel.
Anything in this Custody Agreement to the contrary notwithstanding, in no event
shall you be liable for special, indirect, punitive, incidental or consequential
loss or damage of any kind whatsoever (including but not limited to lost
profits), even if you have been advised of the likelihood of such loss or damage
and regardless of the form of action. Your liability hereunder will be limited
to the amount of fees paid by the undersigned to you pursuant to this Custody
Agreement.
You shall not be subject to, nor be required to comply with, or determine
if any person has complied with, the Underwriting Agreement or any agreements or
documents related to or referred to in the Underwriting Agreement or any other
agreement between or among the parties thereto, even though reference thereto
may be made in this Custody Agreement, or to determine any calculation set forth
in the Underwriting Agreement or to determine whether any condition set forth in
the Underwriting Agreement has been met, or to comply with any notice,
instruction, direction, request or other communication, paper or document other
than as expressly set forth in this Custody Agreement.
This Custody Agreement constitutes a representation and warranty by the
undersigned that (i) the undersigned has, and at each Closing Date will have,
valid and unencumbered title to the Common Stock to be sold on each such Closing
Date pursuant to the Underwriting Agreement, the undersigned will have full
right and power and all authorizations and approvals required by law to sell,
assign, transfer and deliver such Common Stock under the Underwriting Agreement
and upon the delivery of and payment for such Common Stock under the
Underwriting Agreement, the Underwriters will receive valid and unencumbered
title thereto; and (ii) the undersigned has, and at all times through each
Closing Date will have, full legal right and power and all authorizations and
approvals required by law to enter into this Custody Agreement, the Power of
Attorney and the Underwriting Agreement and to carry out all the applicable
terms and provisions hereof and thereof, and this Custody Agreement, the Power
of Attorney and the Underwriting Agreement are, and at all times through each
Closing Date will be, valid and binding obligations of the undersigned.
The undersigned has carefully reviewed the representations, warranties,
statements and agreements to be made by the undersigned as a Selling Shareholder
under the Underwriting Agreement (in the form filed as an exhibit to the
Registration Statement) and does hereby represent, warrant and agree that (a)
such representations, warranties and statements, insofar as they relate to the
undersigned, are true and correct as of the date hereof and will be true and
correct at all times through each Closing Date and (b) such agreements, insofar
as they relate to the undersigned, have (where applicable) been complied with as
of the date hereof and will be complied with on and after each such Closing
Date.
The undersigned has not taken and will not take, directly or indirectly,
any action designed to or that might reasonably be expected to cause or result
in stabilization or manipulation of the price of any security of the Company to
facilitate the sale or resale of the shares of Common Stock being sold pursuant
to the Underwriting Agreement.
The foregoing representations, warranties and agreements, and those
contained in the Underwriting Agreement, are made for the benefit of, and may be
relied upon by, the Attorney the Company, the Underwriters, the Custodian and
the representatives, agents and counsel of each of the foregoing.
THIS CUSTODY AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAWS.
Please acknowledge your acceptance hereof as Custodian, and receipt of the
certificates deposited with you hereunder, by executing and returning to the
undersigned the enclosed copy hereof.
Date:
Maximum Number of Shares ______________________________
of Common Stock to be ______________________,
sold to the Underwriters: As a co-trustee of the trusts
set forth on Schedule A
_______ shares
Including: Maximum Number of Optional PNC Bank, National Association As
Shares to be sold to Underwriters: trustee or co-trustee of the trusts
set forth on Schedule A, and not in
its corporate capacity
_______ shares
By:____________________________
Margaret A. West
Senior Vice President
Mellon Investor Services LLC
By:___________________________
Name:
Title:
EXHIBIT C
TO
SCHEDULE 13D
July 8, 2004
Credit Suisse First Boston LLC
Eleven Madison Avenue
New York, NY 10010-3629
Dear Sirs:
In partial consideration of the Underwriters' decision to execute
the Underwriting Agreement, pursuant to which an offering will be made that is
intended to result in an orderly market for common stock, $0.01 par value (the
"SECURITIES") of P.H. Glatfelter Company, and any successor (by merger or
otherwise) thereto, (the "COMPANY"), the undersigned hereby agrees that from the
date hereof and until 180 days after the public offering date set forth on the
final prospectus used to sell the Securities (the "PUBLIC OFFERING DATE")
pursuant to the Underwriting Agreement among you (as representative of the
several Underwriters), certain selling shareholders and the Company, to which
you are or expect to become a party, the undersigned will not offer, sell,
contract to sell, pledge or otherwise dispose of, directly or indirectly, any
shares of Securities or securities convertible into or exchangeable or
exercisable for any shares of Securities, enter into a transaction which would
have the same effect, or enter into any swap, hedge or other arrangement that
transfers, in whole or in part, any of the economic consequences of ownership of
the Securities, whether any such aforementioned transaction is to be settled by
delivery of the Securities or such other securities, in cash or otherwise, or
publicly disclose the intention to make any such offer, sale, pledge or
disposition, or to enter into any such transaction, swap, hedge or other
arrangement, without, in each case, the prior written consent of Credit Suisse
First Boston LLC. ("CSFB"). In addition, the undersigned agrees that, without
the prior written consent of CSFB and the Company, it will not, during the
period commencing on the date hereof and ending 365 days after the Public
Offering Date, make any demand for or exercise any right with respect to, the
registration of any Securities or any security convertible into or exercisable
or exchangeable for the Securities.
Any Securities received upon exercise of options granted to the
undersigned will also be subject to this Agreement. Any Securities acquired by
the undersigned in the open market, after the date of filing with the Securities
and Exchange Commission of a registration statement with respect to the proposed
offering, will not be subject to this Agreement. A transfer of Securities to a
family member or trust, or a transfer of Securities in the form of a charitable
gift, may be made, provided the transferee agrees to be bound in writing by the
terms of this Agreement prior to such transfer and such transfer shall not
involve a disposition for value. In addition, anything in this Agreement to the
contrary notwithstanding, it is expressly understood and agreed that, upon
written notice to CSFB and the Company by the undersigned, the Securities will
not be subject to this Agreement if either of the following shall occur at any
time, except for the period between the execution of the Underwriting Agreement
and the Closing Date (as defined in the Underwriting Agreement): (1) the Company
enters into an agreement for a corporate transaction in the nature of a merger,
consolidation, share exchange or sale of assets with another company such that
the Securities would become exchangeable for consideration in accordance with
the terms of such transaction; or (2) a fully-financed tender offer for the
common stock of the Company is made; provided, that, the Securities will only be
exempt from the operation of this Agreement for the specific purpose of (x)
exchanging such Securities in a corporate transaction described in (1) above, or
(y) tendering such Securities into a tender offer as described in (2) above,
and, provided further, that, in each case, the relevant corporate transaction or
tender offer successfully closes. If such corporate transaction or tender offer
does not close, the relevant Securities will continue to be subject to this
Agreement.
In furtherance of the foregoing, the Company and its transfer agent
and registrar are hereby authorized to decline to make any transfer of shares of
Securities if such transfer would constitute a violation or breach of this
Agreement.
This Agreement shall be binding on the undersigned and the
successors, heirs, personal representatives and assigns of the undersigned. In
addition, this Agreement shall be binding on the undersigned in their personal
capacity as well as their capacity as a grantor or co-trustee of a trust that
holds Securities. This Agreement shall lapse and become null and void on the
earlier of: (i) October 31, 2004, provided that the Public Offering Date shall
not have occurred on or before such date; (ii) receipt by the undersigned of
written notification from the Company that the proposed offering has been
abandoned; or (iii) such time as the parties otherwise agree to terminate this
Agreement in writing. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York.
Very truly yours,
EXHIBIT D
TO
SCHEDULE 13D
REIMBURSEMENT AGREEMENT
PNC Bank, National Association, as trustee
(not in its corporate capacity)
1600 Market Street
Philadelphia, PA 19103
Attention: Ms. Margaret A. West
Re: Reimbursement Agreement
Ladies and Gentlemen:
We are writing to you in your capacity as Trustee of various trusts
created for descendents of Philip H. Glatfelter (the "Selling Shareholders").
On behalf of and as trustee for the Trusts, you have engaged in
discussions with P.H. Glatfelter Company (the "Company") with respect to the
filing by the Company of a registration statement on Form S-3 with respect to a
proposed underwritten offering of shares of the Company's common stock by the
Trusts through an investment banking firm (the "Registration Statement"). While
discussions are continuing, the Trusts have requested that the Company commence
the preparation of the Registration Statement, as well as all related
documentation, and to undertake appropriate due diligence in order to provide
the Trusts with a better opportunity to respond quickly to favorable market
conditions if and when an agreement to proceed with the offering is reached with
the Company.
The Company is under no legal obligation to prepare or file the
Registration Statement. Nevertheless, the Company is willing to accommodate your
request on the condition that from the assets of the Trusts, the Trusts agree to
reimburse the Company for all of its reasonable, necessary and appropriate costs
related to the Registration Statement and the proposed offering.
Accordingly, the Company agrees to proceed, on a commercially
reasonable basis, with the preparation of the Registration Statement and with
other matters associated with the proposed offering, and PNC as trustee but not
in its corporate capacity agrees to reimburse the Company but only out of the
assets of the Trusts for all reasonable "Registration Expenses", as hereinafter
defined, promptly after receipt of invoices therefor and in any event no later
than 10 days after the first to occur of (i) the delivery of the Company's
invoice following the completion of the secondary offering of the Company's
common stock, or (ii) a determination by the Company, the underwriters and/or
PNC not to proceed with the offering. Notwithstanding the foregoing, PNC shall
not be required to reimburse the Company for "Registration Expenses" (i) in the
event that only the Company determines, not to proceed with the secondary
offering of the Company's common stock as a result of (A) any order, decree,
directive, investigation, or request (other than a request to disclose or file
the custody agreement) of any court or governmental or regulatory body
(including without limitation the Securities and Exchange Commission); or (B)
any event, matter, or circumstance involving the bad faith, willful misconduct
or fraud of the Company; or (ii) incurred by the Company after the receipt of a
written request by the Selling Shareholders not to proceed with the Offering.
The term "Registration Expenses" shall mean all direct expenses
incurred by the Company in connection with the negotiation, preparation,
printing and filing of the Registration Statement, preliminary prospectuses and
the final prospectus (but excluding periodic reports filed with the SEC which
are incorporated documents), and any amendments or supplements thereto, the
underwriting agreement, powers of attorney, the custody agreement,
questionnaires, blue sky surveys and other related documents, as well as the
fees and expenses of the transfer agent and registrar, the fees and expenses of
outside legal counsel for the Company, the fees and expenses of outside legal
counsel for the Special Committee of the Company's Board of Directors, the fees
and expenses of the Company's independent auditors, one-half of the fees and
expenses related to the Company's road show, and all other reasonable
out-of-pocket expenses, such as photocopying and printing, telephone and
telecopier, and postage and other delivery charges, relating to the proposed
offering.
Please confirm your agreement to the foregoing by signing a copy of
this letter and returning it to the undersigned with a copy to Robert Hall and
Timothy Hoeffner.
Sincerely,
___________________________
Markus R. Mueller
General Counsel
Confirmed and agreed to as of the
date first above written:
PNC Bank, National Association (as trustee and not in its corporate capacity)
By: ___________________________
Name: _________________________
Title:_________________________