Definitive Special Proxy Statement
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UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

SCHEDULE 14A

Proxy Statement Pursuant to Section 14(a) of

the Securities Exchange Act of 1934

 

x Filed by the Registrant

 

¨ Filed by a Party other than the Registrant

Check the appropriate box:

 

¨ Preliminary Proxy Statement

 

¨ Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))

 

x Definitive Proxy Statement

 

¨ Definitive Additional Materials

 

¨ Soliciting Material Pursuant to §240.14a-12

Buckeye Technologies Inc.

 

 

(Name of Registrant as Specified In Its Charter)

 

          

 

(Name of Person(s) Filing Proxy Statement, if other than the Registrant)

Payment of Filing Fee (Check the appropriate box):

 

¨ No fee required.

 

x Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.

 

  (1) Title of each class of securities to which transaction applies:

Common stock, par value $.01 per share

 

  (2) Aggregate number of securities to which transaction applies:

40,127,758 shares of common stock, which consists of: (i) 39,528,015 shares of common stock issued and outstanding as of May 1, 2013, including 640,425 unvested restricted shares subject to forfeiture restrictions, repurchase rights or other restrictions under the Company’s Amended and Restated 1995 Management Stock Option Plan, the Second Amended and Restated 1995 Incentive and Nonqualified Stock Option Plan for Management Employees, the Restricted Stock Plan, the Amended and Restated 2007 Omnibus Incentive Compensation Plan and the Amended and Restated Formula Plan for Non-Employee Directors (including 238,810 performance shares) outstanding as of May 1, 2013; and (ii) 599,743 shares of common stock issuable upon the exercise of options to purchase shares of common stock outstanding as of May 1, 2013

 

  (3) Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined):

Estimated for purposes of calculating the filing fee only. This amount assumes the purchase of up to 40,127,758 shares of common stock, par value $0.01 per share, of Buckeye Technologies Inc. at a purchase price of $37.50 per share. Such number of shares consists of (i) 39,528,015 shares of common stock issued and outstanding as of May 1, 2013, including 640,425 shares subject to forfeiture restrictions, repurchase rights, or other restrictions, and (ii) 599,743 shares of common stock that are expected to be issuable before the expiration of the Offer under vested options and other rights to acquire shares of common stock.

 

  (4) Proposed maximum aggregate value of transaction:

$1,504,790,925.00

 

  (5) Total fee paid:

$205,253.48

 

¨ Fee paid previously with preliminary materials.

 

x Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.

 

  (1) Amount Previously Paid:

$205,253.48

 

  (2) Form, Schedule or Registration Statement No.:

Schedule TO

 

  (3) Filing Party:

GP Cellulose Group LLC and Georgia-Pacific LLC

 

  (4) Date Filed:

May 7, 2013

 

 

 


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Buckeye Technologies Inc.

1001 Tillman Street

Memphis, TN 38112

July 8, 2013

Dear Stockholder:

You are cordially invited to attend a special meeting of stockholders of Buckeye Technologies Inc. (“Buckeye”) to be held on August 15, 2013 at 9:00 a.m. Central Time, at our headquarters, 1001 Tillman Street, Memphis, Tennessee 38112 (the “Special Meeting”).

On April 23, 2013, Buckeye entered into a definitive Agreement and Plan of Merger (the “Merger Agreement”) to be acquired by GP Cellulose Group LLC (the “Purchaser”), an indirect wholly-owned subsidiary of Georgia-Pacific LLC (“Georgia-Pacific”). If the transactions contemplated by the Merger Agreement are completed, you will be entitled to receive $37.50 in cash, without interest and subject to any withholding of taxes required by applicable law, for each share of Buckeye common stock you own (unless you have properly exercised your appraisal rights with respect to such shares). Under the Merger Agreement, the Purchaser will be merged with and into Buckeye (the “Merger”), with Buckeye surviving the Merger as an indirect wholly-owned subsidiary of Georgia Pacific. At the Special Meeting, you will be asked to consider and vote upon proposals to:

1. adopt the Merger Agreement;

2. adjourn the Special Meeting, if necessary or appropriate, including to solicit additional votes in favor of the proposal to adopt the Merger Agreement, if there are insufficient votes to adopt the Merger Agreement at the time of the Special Meeting; and

3. approve a non-binding advisory proposal to approve the Merger-related compensation payable to our named executive officers.

The Board of Directors of Buckeye (the “Board”) unanimously: (i) determined that it is advisable, fair and in the best interests of Buckeye to enter into the Merger Agreement, (ii) determined that the terms of the Merger Agreement including the Merger are fair to, and in the best interests of, Buckeye and its stockholders, and are approved and declared advisable, (iii) authorized the Merger Agreement and the transactions contemplated by the Merger Agreement. Accordingly, the Board unanimously recommends that you vote “FOR” approval of the proposal to adopt the Merger Agreement, “FOR” the proposal to adjourn the Special Meeting, if necessary or appropriate, including to solicit additional votes in favor of the proposal to adopt the Merger Agreement, and “FOR” the non-binding advisory proposal to approve the Merger-related compensation payable to our named executive officers.

Approval of the proposal to adopt the Merger Agreement requires the affirmative vote of holders of at least 75% of the outstanding shares of Buckeye common stock entitled to vote thereon. Approval of the proposal to adjourn the Special Meeting, if necessary or appropriate, to solicit additional proxies and the non-binding advisory proposal to approve the Merger-related compensation payable to our named executive officers in connection with the Merger will each be approved with the affirmative vote of the majority of shares present in person or represented by proxy at the Special Meeting and entitled to vote on such proposals.

It is important that your shares be represented and voted at the Special Meeting, regardless of the size of your holdings. Accordingly, please complete, sign and date the enclosed proxy card and return it promptly in the enclosed postage-prepaid envelope to ensure your shares will be represented. If you do attend the Special Meeting, you may, of course, withdraw your proxy should you wish to vote in person. Also, registered and most beneficial stockholders may vote by telephone or through the internet. Instructions for using these convenient services are explained on the enclosed proxy card. Your vote is very important. I urge you to vote your proxy as soon as possible.

The accompanying proxy statement provides you with detailed information about the Special Meeting, the Merger Agreement and the Merger. A copy of the Merger Agreement is attached as Annex A to the proxy statement. We encourage you to read the entire proxy statement and its annexes, including the Merger Agreement, carefully. You may also obtain additional information about Buckeye from documents we have filed with the U.S. Securities and Exchange Commission.

We look forward to seeing you at the Special Meeting.

Sincerely,

 

LOGO

John B. Crowe

Chairman of the Board of Directors and Chief Executive Officer

The proxy statement is dated July 8, 2013 and is first being mailed to our stockholders on or about July 12, 2013.


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NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED THE MERGER, PASSED UPON THE MERITS OR FAIRNESS OF THE MERGER AGREEMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY, INCLUDING THE MERGER, OR PASSED UPON THE ADEQUACY OR ACCURACY OF THE INFORMATION CONTAINED IN THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.


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Buckeye Technologies Inc.

1001 Tillman Street

Memphis, Tennessee 38112

NOTICE OF SPECIAL MEETING OF STOCKHOLDERS

TO BE HELD AUGUST 15, 2013

A special meeting of stockholders of Buckeye Technologies Inc. (“Buckeye”) will be held on August 15, 2013 at 9:00 a.m., Central Time, at our headquarters, 1001 Tillman Street, Memphis, Tennessee 38112 (the “Special Meeting”) for the following purposes:

 

  1. Adoption of the Merger Agreement.  To consider and vote on a proposal to adopt the Agreement and Plan of Merger, dated as of April 23, 2013, by and among Georgia-Pacific LLC, GP Cellulose Group LLC and Buckeye (the “Merger Agreement”);

 

  2. Adjournment of the Special Meeting.  To consider and vote upon a proposal to adjourn the Special Meeting, if necessary or appropriate, to solicit additional proxies if there are insufficient votes at the time of the Special Meeting to approve the proposal to adopt the Merger Agreement; and

 

  3. Advisory Vote on Executive Compensation.  To consider and approve a non-binding advisory proposal to approve the Merger-related compensation payable to our named executive officers in connection with the Merger.

Only those stockholders of record at the close of business on July 8, 2013 are entitled to notice of, and to vote at, the Special Meeting and any adjournment thereof. On that day, 39,528,015 shares of Buckeye common stock were outstanding. Each share entitles the holder to one vote.

The accompanying proxy statement is being sent, beginning approximately July 12, 2013, to all stockholders of record at the close of business on July 8, 2013, the record date fixed by our Board of Directors.

Your vote is very important, regardless of the size of your holdings. The merger of Purchaser with and into Buckeye (the “Merger”), with Buckeye continuing as the surviving corporation and an indirect, wholly-owned subsidiary of Georgia-Pacific, cannot be completed unless the Merger Agreement is adopted by the affirmative vote of holders of at least 75% of the outstanding shares of Buckeye common stock entitled to vote thereon. The proposal to adjourn the Special Meeting, if necessary or appropriate, to solicit additional proxies and the non-binding advisory proposal to approve the Merger-related compensation payable to our named executive officers will each be approved with the affirmative vote of the majority of shares present in person or represented by proxy at the Special Meeting and entitled to vote on such proposals.

Even if you plan to attend the Special Meeting in person, we request that you complete, sign and date the enclosed proxy card and return it promptly in the enclosed postage-prepaid envelope or submit your proxy by telephone or the internet prior to the Special Meeting to ensure your shares will be represented. If you do not attend and vote your shares at the Special Meeting and you fail to return your proxy card or fail to submit your proxy by phone or the internet, your shares of Buckeye common stock will not be counted for purposes of determining whether a quorum is present at the Special Meeting and, if a quorum is present, will have the same effect as a vote “AGAINST” the proposal to adopt the Merger Agreement.

The Board of Directors of Buckeye (the “Board”) unanimously: (i) determined that it is advisable, fair and in the best interests of Buckeye to enter into the Merger Agreement, (ii) determined that the terms of the Merger Agreement including the Merger are fair to, and in the best interests of, Buckeye and its stockholders, and are approved and declared advisable, (iii) authorized the Merger Agreement and the transactions contemplated by the Merger Agreement. Accordingly, the Board unanimously recommends that you vote “FOR” approval of the proposal to adopt the Merger Agreement, “FOR” the proposal to adjourn the Special Meeting, if necessary or appropriate, including to solicit additional votes in favor of the proposal to adopt the Merger Agreement, and “FOR” the non-binding advisory proposal to approve the Merger-related compensation payable to our named executive officers.


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WHETHER OR NOT YOU PLAN TO ATTEND THE SPECIAL MEETING, PLEASE COMPLETE, DATE, SIGN AND RETURN, AS PROMPTLY AS POSSIBLE, THE ENCLOSED PROXY CARD IN THE ACCOMPANYING PREPAID REPLY ENVELOPE, OR SUBMIT YOUR PROXY BY TELEPHONE OR THE INTERNET.

 

By Order of the Board of Directors,
LOGO
Sheila Jordan Cunningham
Senior Vice President,
General Counsel and Corporate Secretary


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TABLE OF CONTENTS

 

Summary

     1   

Questions and Answers About the Special Meeting and the Merger

     12   

Special Note Regarding Forward-Looking Statements

     21   

Proposal 1: Adoption of the Merger Agreement

     22   

Proposal 2: Authority to Adjourn the Special Meeting

     88   

Proposal 3: Advisory Vote Regarding Merger-Related Compensation

     89   

Market Price of Shares of Buckeye Common Stock and Dividend Information

     92   

Security Ownership of Certain Beneficial Owners and Management

     93   

Appraisal Rights

     95   

Delisting and Deregistration of Shares of Buckeye Common Stock

     97   

Other Matters

     97   

Where You Can Find More Information

     98   

Stockholders Sharing the Same Last Name and Address

     98   

Annex A: Agreement and Plan of Merger

     A-1   

Annex B: Financial Advisor Opinion

     B-1   

Annex C: Delaware General Corporation Law Section 262

     C-1   

 

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SUMMARY

The following summary highlights selected information in this proxy statement and may not contain all the information that may be important to you. Accordingly, we encourage you to read carefully this entire proxy statement, its annexes and the documents referred to in this proxy statement. Each item in this summary includes a page reference directing you to a more complete description of that topic. You may obtain the information incorporated by reference in this proxy statement without charge by following the instructions under “Where You Can Find More Information” beginning on page 98. Capitalized terms used herein and not otherwise defined have the meanings set forth in the Merger Agreement.

Parties to the Merger (Page 22)

Buckeye Technologies Inc.

1001 Tillman Street

Memphis, Tennessee 38112

(901) 320-8100

Buckeye Technologies Inc., a Delaware corporation, which we refer to in this proxy statement as “Buckeye”, “we”, “our”, or “us”, is a manufacturer and distributor of value-added cellulose-based specialty products used in numerous applications, including disposable diapers, personal hygiene products, engine, air and oil filters, concrete reinforcing fibers, food casings, cigarette filters, rayon filaments, acetate plastics, thickeners and papers. Buckeye’s products are produced in the United States and Germany, and are sold in approximately 60 countries worldwide. Buckeye is listed on the New York Stock Exchange, or the “NYSE”, under the symbol “BKI.”

For additional information about Buckeye and our business, see “Where You Can Find More Information” on page 98.

Georgia-Pacific LLC

133 Peachtree St. NE

Atlanta, Georgia 30303

(404) 652-4000

Georgia-Pacific LLC, a Delaware limited liability company, which we refer to in this proxy statement as “Georgia-Pacific”, is a one of the largest global diversified forest products companies and among the leading manufacturers of consumer tissue-based products, disposable tableware, containerboard, corrugated packaging and building products such as wood structural panels, lumber and other wood products, gypsum and chemicals. Georgia-Pacific is an indirect wholly-owned subsidiary of Koch Industries, Inc., a Kansas corporation.

GP Cellulose Group LLC

133 Peachtree St. NE

Atlanta, Georgia 30303

(404) 652-4000

GP Cellulose Group LLC, a Delaware limited liability company, which we refer to in this proxy statement as the “Purchaser”, was formed in 2007 as a shell entity for the purpose of making acquisitions. Since its formation, the Purchaser has not completed any acquisitions or otherwise commenced business operations. If the Merger closes, the sole purpose of the Purchaser will be to effect the transactions contemplated by the Merger Agreement (including the Merger). The Purchaser is an indirect wholly-owned subsidiary of Georgia-Pacific. Until the effective time of the Merger, which we refer to in this proxy statement as the “Effective Time”, it is not anticipated that the Purchaser will have any significant assets or liabilities or engage in any activities other than those incidental to the Merger.

 

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In this proxy statement, we refer to the Agreement and Plan of Merger, dated April 23, 2013, as it may be amended from time to time, among Buckeye, Georgia-Pacific and the Purchaser, as the “Merger Agreement”, and the merger of Purchaser with and into Buckeye with Buckeye as the surviving corporation as the “Merger”.

The Offer (Page 63)

On May 7, 2013, Purchaser commenced a tender offer, which we refer to as the “Offer”, for all of the outstanding shares of common stock of Buckeye, par value $0.01 per share, which we refer to as “shares of Buckeye common stock” or “Shares”, at a price of $37.50 per Share, net to the seller in cash, without interest, or the “Offer Price”, subject to any withholding of taxes required by applicable law, upon the terms and subject to the conditions set forth in the Offer to Purchase, dated May 7, 2013 by the Purchaser (which, together with any amendments or supplements thereto, collectively constitute the “Offer”).

The Merger Agreement provides that the Merger may be consummated regardless of whether the Offer is completed, but if the Offer is not completed and is terminated in accordance with the Merger Agreement and the Merger Agreement is not terminated, the Merger will only be able to be consummated, subject to the terms and conditions of the Merger Agreement, after the stockholders of Buckeye have adopted the Merger Agreement at a special meeting of stockholders. The Offer was terminated in accordance with the Merger Agreement on June 25, 2013. We have prepared this proxy statement in connection with the solicitation of proxies for the Special Meeting to obtain stockholder approval of the adoption of the Merger Agreement in order to be able to consummate the Merger.

We refer in this proxy statement to the Offer and to terms of the Merger Agreement applicable to the Offer; however, the Offer has been terminated and is not applicable to the Special Meeting. The Offer, the Merger and the other transactions contemplated by the Merger Agreement are collectively referred to as the “Transaction.”

The Special Meeting (Page 12)

Time, Place and Purpose of the Special Meeting (Page 12)

The Special Meeting will be held on August 15, 2013 at 9:00 a.m. Central Time at our headquarters, 1001 Tillman Street, Memphis, Tennessee 38112.

At the Special Meeting, holders of Shares will be asked to consider and vote upon proposals to:

 

   

adopt the Merger Agreement;

 

   

adjourn the Special Meeting, if necessary or appropriate, including to solicit additional votes in favor of the proposal to adopt the Merger Agreement, if there are insufficient votes to adopt the Merger Agreement at the time of the Special Meeting; and

 

   

approve a non-binding advisory proposal to approve the Merger-related compensation payable to our named executive officers.

Record Date and Quorum (Page 17)

You are entitled to receive notice of, and to vote at, the Special Meeting if you owned Shares at the close of business on July 8, 2013, which Buckeye has set as the record date for the Special Meeting and which we refer to as the “record date”. You will have one vote for each Share that you owned on the record date. As of the record date, there were 39,528,015 Shares outstanding and entitled to vote at the Special Meeting. The presence, in person or by proxy, of the holders of a majority of the Shares outstanding at the close of business on the record date and entitled to vote at the Special Meeting constitutes a quorum for the purposes of the Special Meeting.

 

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Vote Required (Page 17)

Approval of the proposal to adopt the Merger Agreement requires the affirmative vote of the holders of 75% of the outstanding Shares, voting together as a single class, to adopt the Merger Agreement and approve the Merger under the Delaware General Corporation Law , or the “DGCL”, and the organizational documents of Buckeye, or the “Stockholder Vote”. Failure to vote, by proxy or in person, broker non-votes and abstentions will have the same effect as a vote “AGAINST” the proposal to adopt the Merger Agreement.

Approval of the proposal to adjourn the Special Meeting, if necessary or appropriate, including to solicit additional votes in favor of the proposal to adopt the Merger Agreement, if there are insufficient votes to adopt the Merger Agreement at the time of the Special Meeting, requires the affirmative vote of holders of a majority in voting power of the Shares present in person or represented by proxy and entitled to vote on the matter at the Special Meeting.

Approval of the non-binding advisory proposal to approve the Merger-related compensation payable to our named executive officers requires the affirmative vote of the holders of a majority in voting power of the Shares present in person or represented by proxy and entitled to vote on the subject matter vote in favor of the proposal. For purposes of this proposal and the proposal to adjourn the Special Meeting, if your Shares are present at the Special Meeting but are not voted on this proposal, or if you have given a proxy and abstained on this proposal, this will have the same effect as if you voted “AGAINST” the proposals. Broker non-votes will not have any effect on the proposal to adjourn the Special Meeting or on the non-binding advisory proposal to approve the Merger-related compensation payable to our named executive officers. Failure to submit a proxy or vote in person at the Special Meeting will also not have any effect on the proposal to adjourn the Special Meeting or, assuming a quorum is present, on the non-binding advisory proposal to approve the Merger-related compensation.

Each director and executive officer of Buckeye, who we refer to as the “Supporting Stockholders”, has entered into a letter agreement with Georgia-Pacific and the Purchaser, which we collectively refer to as the “Support Agreements,” each of which provides, among other things, that these stockholders will vote all of their Shares in favor of the adoption of the Merger Agreement and any other matters necessary for the completion of the transactions contemplated by the Merger Agreement at any meeting of the stockholders of Buckeye that is reasonably requested by Georgia-Pacific or the Purchaser. Pursuant to these Support Agreements, the Supporting Stockholders collectively agreed to vote in favor of the Merger Agreement approximately 1.4 million Shares, or approximately 3.6% of the Shares outstanding on April 23, 2013, the date of the Support Agreements.

Proxies and Revocation (Page 16)

Any stockholder of record entitled to vote at the Special Meeting may submit a proxy by telephone, over the internet or by returning the enclosed proxy card in the accompanying prepaid reply envelope, or may vote in person by appearing at the Special Meeting. If your Shares are held in “street name” through a bank, brokerage firm or other nominee, you should instruct your bank, brokerage firm or other nominee on how to vote your Shares using the instructions provided by your bank, brokerage firm or other nominee. If you fail to submit a proxy or to vote in person at the Special Meeting, or do not provide your bank, brokerage firm or other nominee with voting instructions, as applicable, your Shares will not be voted on any of the proposals submitted to a vote at the Special Meeting, which will have the same effect as a vote “AGAINST” the proposal to adopt the Merger Agreement, and your Shares will not have an effect on approval of the proposal to adjourn the Special Meeting or on the non-binding advisory proposal to approve the Merger-related compensation payable to our named executive officers.

You may change your vote or revoke your proxy at any time before it is voted at the Special Meeting by:

 

   

submitting a new proxy by telephone or via the Internet after the date of the earlier voted proxy;

 

   

signing another proxy card with a later date and returning it to us prior to the Special Meeting;

 

   

sending a written notice that you are revoking your proxy to Buckeye Technologies Inc., P.O. Box 80407, 1001 Tillman Street, Memphis, TN 38108-0407, Attention: Corporate Secretary; or

 

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attending the Special Meeting, notifying the election officials that you wish to revoke your proxy and voting in person.

If you hold your Shares in street name, you may submit new voting instructions by contacting your bank, brokerage firm or other nominee. You may also vote in person at the Special Meeting if you obtain a legal proxy from your bank, brokerage firm or other nominee.

The Merger (Page 64)

The Merger Agreement provides that Purchaser will merge with and into Buckeye. Buckeye will be the surviving corporation in the Merger, which we refer to as the “Surviving Corporation” and will continue to do business following the Merger. As a result of the Merger, Buckeye will cease to be a publicly traded company. If the Merger is completed, you will not own any shares of the capital stock of the Surviving Corporation.

Merger Consideration (Page 23)

In the Merger, each outstanding Share (other than Shares owned by Buckeye or by Georgia-Pacific, Purchaser, or any of their respective subsidiaries and other than Shares owned by stockholders that are entitled to and properly exercise appraisal rights under Delaware law, which we will refer to collectively as the “excluded shares”) will be converted into the right to receive $37.50 net to the holder thereof in cash, without interest, which amount we refer to as the “per Share Merger Consideration”, subject to any withholding taxes required by applicable law.

Treatment of Options, Treatment of Stock Appreciation Rights and Treatment of Restricted Shares (Page 67)

If the Merger occurs, each unexpired and unexercised option to purchase Shares, or a “Company Option”, each unexpired and unexercised stock appreciation right based on the value of Shares, each a “Company SAR”, and each unvested Share subject to forfeiture restrictions, repurchase rights or other restrictions under any Company Equity Plan (as defined in the Merger Agreement), each a “Restricted Share”, will be treated as described below:

 

   

Immediately prior to the Effective Time, each Company Option, whether or not then exercisable or vested, will be cancelled and, in exchange therefor, each former holder of any such cancelled Company Option will be entitled to receive a payment in cash (subject to any withholding or other taxes required under applicable law) of an amount equal to the product of (i) the total number of Shares subject to such Company Option immediately prior to such cancellation and (ii) the excess, if any, of the per share Merger Consideration over the exercise price per Share subject to such Company Option immediately prior to such cancellation.

 

   

Immediately prior to the Effective Time, each Company SAR, whether or not then exercisable or vested, will be cancelled and, in exchange therefor, each former holder of any such cancelled Company SAR will be entitled to receive, in consideration of the cancellation of such Company SAR and in settlement therefor, a payment in cash (subject to any applicable withholding or other taxes required by applicable law) of an amount equal to the product of (i) the total number of Shares subject to such Company SAR immediately prior to such cancellation and (ii) the excess, if any, of the per Share Merger Consideration over the base price per Share subject to such Company SAR immediately prior to such cancellation.

 

   

Immediately prior to the Effective Time, each Restricted Share will vest in full and all restrictions (including forfeiture restrictions or repurchase rights) otherwise applicable to such Restricted Share will lapse and such Restricted Share will be converted into the right to receive the per Share Merger Consideration, without interest, subject to any withholding or other taxes required by applicable law.

 

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Recommendation of the Board; Reasons for Recommendation (Page 31)

After due and careful discussion and consideration of various factors described in the section entitled “The Merger—Recommendation of the Board; Reasons for the Recommendation,” the board of directors of Buckeye, or the “Board”, unanimously (i) determined that it is advisable, fair and in the best interests of Buckeye to enter into the Merger Agreement, (ii) determined that the terms of the Merger Agreement, including the Merger, are fair to and in the best interests of Buckeye and its stockholders and are approved and declared advisable, (iii) authorized the Merger Agreement and the transactions contemplated thereby, including the Merger, and (iv) recommended that Buckeye’s stockholders vote in favor of the adoption and approval of the Merger Agreement and the transactions contemplated thereby, including the Merger.

The Board recommends that you vote “FOR” the proposal to adopt the Merger Agreement, “FOR” the proposal to adjourn the Special Meeting, if necessary or appropriate, including to solicit additional votes in favor of the proposal to adopt the Merger Agreement, and “FOR” the non-binding advisory proposal to approve the Merger-related compensation payable to our named executive officers.

Opinion of Buckeye’s Financial Advisor (Page 34)

On April 23, 2013, in connection with the Offer and the Merger, Buckeye’s financial advisor, Barclays Capital Inc., or “Barclays”, rendered its opinion to the Board to the effect that, as of such date and based upon and subject to the qualifications, limitations and assumptions stated in its opinion, the consideration to be offered to the stockholders of Buckeye in the Offer and the Merger was fair, from a financial point of view, to such stockholders.

The full text of the written opinion, dated April 23, 2013, which sets forth, among other things, the assumptions made, procedures followed, factors considered and limitations upon the review undertaken by Barclays in rendering its opinion, is attached as Annex B to this proxy statement. You are encouraged to read the opinion carefully in its entirety. Barclays’ opinion is addressed to the Board, addresses only the fairness, from a financial point of view, of the consideration to be offered to the stockholders of Buckeye and does not constitute a recommendation to any stockholder of Buckeye as to whether to accept the consideration to be offered to the stockholders of Buckeye in connection with, or how such stockholder should vote with respect to, the Merger. This summary is qualified in its entirety by reference to the full text of the written opinion.

Financing of the Merger (Page 45)

Completion of the Merger is not conditioned upon obtaining financing. Georgia-Pacific and the Purchaser estimate that the total funds required to complete the Merger will be approximately $1.5 billion plus any related transaction fees and expenses. The Purchaser will receive these funds from Georgia-Pacific. Georgia-Pacific intends to obtain the funds to be provided to the Purchaser out of a combination of cash and cash equivalents on hand and net proceeds from the sale of commercial paper under Georgia-Pacific’s commercial paper program.

Confidentiality Agreement (Page 86)

On January 30, 2013, Buckeye and Georgia-Pacific entered into a confidentiality agreement, or the “Confidentiality Agreement”. Under the Confidentiality Agreement, each party has agreed, among other things, to keep confidential all non-public information furnished to them or to their representatives by or on behalf of the other party confidential and to use such information solely for purposes of evaluating the potential negotiated transaction that resulted in the Merger Agreement (subject to certain exceptions). If requested by the other party, each party is required, subject to certain customary exceptions, to destroy or erase the non-public information furnished under the Confidentiality Agreement and to destroy or erase any analyses or documents prepared by the party or its representatives based upon such non-public information. In addition, Buckeye and Georgia-Pacific agreed, subject to certain customary exceptions, to keep confidential the fact that discussions of a potential negotiated transaction were taking place and the existence of the Confidentiality Agreement.

 

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Under the Confidentiality Agreement, Georgia-Pacific also agreed, among other things, to certain “standstill” provisions which prohibit Georgia-Pacific (and certain of its affiliates and representatives) from taking certain actions involving or with respect to Buckeye, unless invited to do so by Buckeye or its representatives. Upon the Purchaser’s receipt of a notice of Superior Proposal (as defined herein) that includes an aggregate purchase price per share in excess of 110% of per Share Merger Consideration, the standstill restrictions set forth above shall terminate and cease to apply to Georgia-Pacific and the Purchaser. The Confidentiality Agreement includes a no solicitation and no hire provision. Pursuant to this provision, Georgia-Pacific agreed that, among other things and for a period of 18 months from the date of the Confidentiality Agreement, neither Georgia-Pacific nor any of its controlled affiliates would solicit for employment or hire any employee of Buckeye or its subsidiaries with whom Georgia-Pacific initially came into contact in connection with the potential negotiated transaction that resulted in the Merger Agreement.

Interests of Certain Persons in the Merger (Page 46)

In considering the recommendation of the Board with respect to the proposal to adopt the Merger Agreement, you should be aware that our directors and executive officers have interests in the Merger that are different from, or in addition to, yours. These interests include the acceleration and “cash-out” of certain equity and equity-based awards, certain severance benefits that may be payable upon termination following a change in control and the right to continued indemnification and insurance coverage by the Surviving Corporation after the Merger. The Board was aware of and considered these interests, among other matters, in evaluating and negotiating the Merger Agreement and the Merger, and in recommending that the Merger Agreement be adopted by the stockholders of Buckeye.

Material United States Federal Income Tax Consequences of the Merger (Page 58)

The exchange of Unrestricted Shares for cash in the Merger will generally be a taxable transaction to U.S. holders for U.S. federal income tax purposes. Holders of Restricted Shares should consult with their tax advisors as to the particular tax consequences of the Merger to them. In general, a U.S. holder whose Shares are converted into the right to receive cash in the Merger will recognize gain or loss for U.S. federal income tax purposes in an amount equal to the difference, if any, between the amount of cash received with respect to such Shares (determined before the deduction of any required withholding taxes) and its adjusted tax basis in such Shares. Gain or loss must be calculated separately for each block of Unrestricted Shares (i.e., shares acquired at the same cost in a single transaction) exchanged for cash in the Merger. Any such gain or loss will be capital gain or loss if the holder holds such Shares as capital assets, and will be long-term capital gain or loss if the holding period for such Shares exceeds one year. Backup withholding may also apply to the cash payments made pursuant to the Merger unless the U.S. holder or other payee provides a taxpayer identification number, certifies that such number is correct and otherwise complies with the backup withholding rules. Payments made to a non-U.S. holder with respect to Unrestricted Shares exchanged for cash pursuant to the Merger will generally be exempt from U.S. federal income tax unless certain conditions are satisfied, such as, for example, a determination that Buckeye is a “U.S. real property holding corporation.” A non-U.S. holder may, however, be subject to backup withholding with respect to the cash payments made pursuant to the Merger, unless the holder certifies that it is not a U.S. person or otherwise establishes a valid exemption from backup withholding tax. You should read “The Merger—Material United States Federal Income Tax Consequences of the Merger” beginning on page 58 for definitions of “Unrestricted Shares,” “U.S. holder” and “non-U.S. holder,” and for a more detailed discussion of the material U.S. federal income tax consequences of the Merger. You should also consult your tax advisor with respect to the specific tax consequences to you in connection with the Merger in light of your own particular circumstances, including federal estate, gift and other non-income tax consequences, and tax consequences under state, local or foreign tax laws.

 

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Regulatory Approvals and Notices (Page 60)

Under the terms of the Merger Agreement, the Merger cannot be completed until (a) the waiting period applicable to the consummation of the Merger under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, or the “HSR Act”, has expired or been terminated and (b) certain other foreign competition authorities have either approved the Merger or opted not make a challenge of the Merger.

Litigation Relating to the Merger (Page 62)

On May 1, 2013, a putative shareholder class action complaint was filed in the Court of Chancery of the State of Delaware, or the “Delaware Court”, captioned James Beckett, Jr. v. Buckeye Technologies Inc., et. al., Case No. 8519-CS, or the “Beckett Action”. On May 7, 2013, a putative shareholder class action complaint was filed in the Delaware Court, captioned Richard Oliver v. John Crowe, et. al., Case No. 8534-CS, or the “Oliver Action.” Pursuant to an order granted in the Delaware Court on May, 9, 2013, the Beckett Action and the Oliver Action were consolidated into a single action, all future actions filed in Delaware related to the same subject matter are to become part of the consolidated action and counsel to Mr. Beckett and Mr. Oliver were appointed as the lead counsel for the putative shareholder class. On May 13, 2013, the plaintiffs in the consolidated action filed a consolidated amended class action complaint, captioned In re Buckeye Technologies, Inc. Shareholders Litigation, Consolidated Case No. 8519-CS, or the “Consolidated Complaint”. The plaintiffs also filed a motion for expedited proceedings and a motion for a preliminary injunction. The Consolidated Complaint named as defendants Buckeye, each member of the Board, or the “Individual Defendants”, Georgia-Pacific and the Purchaser. The Consolidated Complaint generally alleged that the Individual Defendants breached their fiduciary duties and that Buckeye, Georgia-Pacific and the Purchaser aided and abetted these purported breaches of fiduciary duties.

On May 21, 2013, a telephonic hearing was held in the Consolidated Complaint on the plaintiffs’ motion to expedite proceedings and to set a hearing for preliminary injunction. The Delaware Court ruled that the plaintiffs had failed to set forth a colorable basis for expedited proceedings and denied the plaintiffs’ motion.

On June 19, 2013, the Consolidated Complaint was dismissed without prejudice pursuant to a Stipulation and Order of Dismissal (the “Order”) filed by the parties and entered by the Delaware Court. The Order stipulates that each party to the Consolidated Complaint will bear its own costs and that no compensation has passed or been promised from any of the defendants to the plaintiffs or plaintiffs’ counsel.

The Merger Agreement (Page 63)

Conditions to Completion of the Merger (Page 64)

The respective obligations of Georgia-Pacific and the Purchaser, on the one hand, and Buckeye, on the other hand, to complete the Merger are subject to the satisfaction or the waiver of certain additional conditions as set forth in the Merger Agreement regarding:

 

   

in the case of Georgia-Pacific, the Purchaser and Buckeye:

 

   

any applicable waiting period under the HSR Act has expired or been terminated;

 

   

any Other Required Governmental Approvals (as defined in the Merger Agreement) have been obtained, any waiting period (or extension thereof) has lapsed and any mandatory filing has been made;

 

   

there is no law, judgment, order or injunction (other than waiting periods applicable to the Merger under the HSR Act or any Other Required Governmental Approvals) in effect, enacted, entered, enforced or promulgated by or on behalf of a governmental entity of competent jurisdiction with respect to the Merger that has the effect of enjoining, making illegal, or otherwise prohibiting the consummation of the Merger;

 

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in the case of Georgia-Pacific and the Purchaser:

 

   

the representations and warranties of Buckeye in the Merger Agreement are true and correct except as would not have a Company Material Adverse Effect, or in some cases, are true and correct in all material respects or all respects, as of the Effective Time;

 

   

the material covenants of Buckeye contained in the Merger Agreement required to be performed or complied with by it prior to the Effective Time have been performed or complied with in all material respects (or cured prior to the Effective Time);

 

   

since April 23, 2013, and subject to certain prior disclosure by Buckeye, no facts, changes, events, developments or circumstances have occurred, arisen or come into existence or first become known to Georgia-Pacific or the Purchaser (or any worsening thereof, only to the extent of such worsening) which have had, or would reasonably be expected to have, individually or in the aggregate with all such other facts, changes, events, developments or circumstances, a Company Material Adverse Effect; and

 

   

the Merger Agreement has not been terminated in accordance with its terms.

 

   

in the case of Buckeye:

 

   

the representations and warranties of Georgia-Pacific and the Purchaser in the Merger Agreement are true and correct except as would not have a Parent Material Adverse Effect, or in some cases, are true and correct in all material respects or all respects, as of the Effective Time;

 

   

the material covenants of Georgia-Pacific and the Purchaser contained in the Merger Agreement required to be performed or complied with by it prior to the expiration of the Offer have been performed or complied with in all material respects (or cured prior to the Effective Time);

The Merger is also subject to other conditions.

Conduct of Business of Buckeye Pending Closing (Page 70)

Except as required by applicable law or the Merger Agreement, or as otherwise agreed by the parties, unless Georgia-Pacific has otherwise agreed in writing (such consent not to be unreasonably withheld, conditioned or delayed), from the date of the Merger Agreement until the Effective Time, Buckeye has agreed that it will, and will cause its subsidiaries to:

 

   

conduct its operations in the ordinary course of business consistent with past practice in all material respects;

 

   

use commercially reasonable best efforts to keep available the services of the current officers and other key employee of Buckeye and its subsidiaries;

 

   

use commercially reasonable best efforts to preserve substantially intact its present business organization; and

 

   

use commercially reasonable best efforts to preserve the goodwill and current relationships of Buckeye and its subsidiaries with material customers, suppliers and others having significant and material business relationships with Buckeye and its subsidiaries.

Appropriate Action; Consents; Filings (Page 79).

Each of Buckeye, Georgia-Pacific and the Purchaser has agreed to use its commercially reasonable best efforts to:

 

   

take, or cause to be taken, all appropriate action and do, or cause to be done, and to assist and cooperate with the each other in doing, all things necessary, proper or advisable under applicable law to complete the transactions contemplated by the Merger Agreement as promptly as practicable;

 

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take the actions required to cause, as promptly as possible after April 23, 2013, the expiration of the notice periods required by applicable competition laws for the completion of the transactions contemplated by the Merger Agreement;

 

   

obtain from any governmental entities any consents, licenses, permits, waivers, approvals, authorizations or orders required to be obtained to complete the Merger no later than February 20, 2014 and to avoid any action or proceeding by any governmental entity that would (i) prevent the closing of the Merger no later than February 20, 2014 or (ii) delay the closing beyond February 20, 2014, in connection with the authorization, execution and delivery of the Merger Agreement and the completion of the transactions contemplated thereby; and

 

   

as promptly as reasonably practicable, and in any event within 10 business days after April 23, 2013, make all necessary filings and submissions, and pay any related fees, with respect to the Merger Agreement, the Offer, the Top-Up Option, and the Merger required under the Securities Exchange Act of 1934, as amended, or the “Exchange Act”, and any other applicable securities laws and the HSR Act, which filings and submissions were timely made; and

 

   

as promptly as reasonably practicable after April 23, 2013, make all necessary filings and submissions, and pay any related fees, with respect to the Merger Agreement and the Merger required under any other applicable law.

Except as described below, the Merger Agreement provides that, in connection with the receipt of any necessary approvals or clearances of a governmental entity, neither Georgia-Pacific nor Buckeye (nor any of their respective subsidiaries or affiliates) is required to sell, hold separate or otherwise dispose of or conduct their business in a specified manner, or agree to sell, hold separate or otherwise dispose of or conduct their business in a specified manner or enter into a voting trust arrangement, proxy arrangement, “hold separate” agreement or similar agreement, or permit the sale, holding separate or other disposition of, any assets of Georgia-Pacific, Buckeye or their respective subsidiaries or affiliates.

Georgia-Pacific and the Purchaser have agreed to divest the Specified Business (as defined herein) on the terms described in this paragraph if (i) necessary to enable the closing of the transactions contemplated by the Merger Agreement to occur no later than February 20, 2014 and (ii) Buckeye and its subsidiaries have complied in all material respects with their obligations to cooperate with the divestiture of the Specified Business described herein. If all of the foregoing requirements occur, Georgia-Pacific and the Purchaser will commit to and effect by consent decree, “hold separate” orders or otherwise, the sale, divestiture or disposition of the Specified Business and create or terminate obligations of Buckeye and its subsidiaries related to the Specified Business, in each case, as may be required to obtain all authorizations, terminations of waiting periods, consents and approvals no later than February 20, 2014.

No Solicitation of Transactions (Page 74)

From the date of Merger Agreement until completion of the Merger or, if earlier, the termination of the Merger Agreement in accordance with its terms, Buckeye has agreed that it will, and will cause its subsidiaries and Buckeye’s directors and executive officers to, and will use its commercially reasonably best efforts to cause their respective representatives to cease and cause to be terminated any existing solicitation, discussion or negotiation with any third party that may be ongoing with respect to a Competing Proposal (as defined herein). Notwithstanding the foregoing, at any time before the affirmative vote of the Buckeye stockholders required for adoption of the Merger Agreement, Buckeye may, subject to compliance with certain requirements, furnish non-public information with respect to Buckeye and its subsidiaries to any third party that has submitted an unsolicited, bona fide written Competing Proposal, and engage in discussions or negotiations with such person with respect to the Competing Proposal. In addition, notwithstanding the foregoing, prior to the affirmative vote of the Buckeye stockholders required for adoption of the Merger Agreement, the Board may, subject to compliance with certain requirements, effect an Adverse Recommendation Change (as defined herein) with respect to a Superior Proposal (as defined herein), or otherwise terminate the Merger Agreement to enter into a definitive agreement with respect to a Superior Proposal.

 

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Termination (Page 82)

The Merger Agreement may be terminated:

 

   

by mutual written consent of the Purchaser and Buckeye, at any time prior to the Effective Time, whether before or after stockholder approval thereof; or

 

   

by either the Purchaser or Buckeye in certain circumstances.

Effect of Termination and Termination Fee (Page 84)

If the Merger Agreement is terminated in accordance with its terms by either Buckeye or the Purchaser, written notice thereof must be given to the other parties, specifying the provisions of the Merger Agreement being invoked and the basis for the termination under those provisions. The Merger Agreement will then become void and, except as specified in the Merger Agreement (including with respect to the payment of the Termination Fee as applicable), there will be no liability or obligation on the part of Georgia-Pacific, the Purchaser or Buckeye or their respective subsidiaries, officers, directors, or managers. No party is relieved of any liability or damages for a willful and material breach of the Merger Agreement.

Buckeye has agreed to pay the Purchaser a termination fee of $48.613 million in cash (the “Termination Fee”) in connection with the termination of the Merger Agreement in certain circumstances. The parties agreed that the payment of the Termination Fee after a valid termination of the Merger Agreement will be the exclusive remedy available to Georgia-Pacific and the Purchaser for any loss resulting from the failure of Merger to be completed.

If the Purchaser terminates the Merger Agreement pursuant to its terms, the Purchaser has agreed to reimburse Buckeye, upon request, for 50% of its reasonable documented fees incurred in connection with Buckeye’s engagement of its advisors to produce certain information requested by the Purchaser in accordance with the Merger Agreement. The Purchaser has further agreed to reimburse Buckeye for any reasonable documented expenses and costs incurred in connection with Buckeye’s efforts to arrange a potential disposition of the Specified Business (as defined herein) if requested by the Purchaser as necessary in order to satisfy the conditions of the Merger. Other than as required by the provisions described above, all costs and expenses incurred by the parties will be paid by the party incurring such costs and expenses.

Market Price of Shares of Buckeye Common Stock and Dividend Information (Page 92)

Th Shares are listed on the NYSE under the symbol “BKI.” On April 23, 2013, the last full trading day before public announcement of the execution of the Merger Agreement, the closing price reported on the NYSE was $29.93 per share. On July 5, 2013, the latest practicable trading day before the printing of this proxy statement, the Shares closed at $37.02. Stockholders are urged to obtain a current market quotation for the Shares.

Appraisal Rights (Page 95)

Stockholders are entitled to appraisal rights under Section 262 of the DGCL in connection with the Merger, provided that stockholders meet all of the conditions set forth in Section 262 of the DGCL. This means that you are entitled to have the fair value of your Shares determined by the Delaware Court of Chancery and to receive payment based on that valuation. The ultimate amount you receive in an appraisal proceeding may be less than, equal to or more than the amount you would have received under the Merger Agreement.

To exercise your appraisal rights, you must submit a written demand for appraisal to Buckeye before the vote is taken on the Merger Agreement and you must not submit a proxy or otherwise vote in favor of the proposal to adopt the Merger Agreement. Your failure to follow exactly the procedures specified under the

 

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DGCL will result in the loss of your appraisal rights. See “Appraisal Rights” beginning on page 95 and the text of Section 262 of the DGCL, the Delaware appraisal rights statute, reproduced in its entirety as Annex C to this proxy statement. If you hold your Shares through a bank, brokerage firm or other nominee and you wish to exercise appraisal rights, you should consult with your bank, brokerage firm or other nominee to determine the appropriate procedures for the making of a demand for appraisal by such bank, brokerage firm or nominee. In view of the complexity of the DGCL, stockholders who may wish to pursue appraisal rights should consult their legal and financial advisors promptly.

Delisting and Deregistration of Shares of Buckeye Common Stock (Page 97)

If the Merger is completed, shares of Buckeye common stock will be delisted from the NYSE and deregistered under the Exchange Act. As such Buckeye would no longer file periodic reports with the U.S. Securities and Exchange Commission, or the “SEC”.

 

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QUESTIONS AND ANSWERS ABOUT THE SPECIAL MEETING AND THE MERGER

The following questions and answers are intended to address briefly some commonly asked questions regarding the Merger, the Merger Agreement and the Special Meeting. These questions and answers may not address all questions that may be important to you as a stockholder of Buckeye. Please refer to the “Summary” and the more detailed information contained elsewhere in this proxy statement, the annexes to this proxy statement and the documents incorporated by reference or referred to in this proxy statement, which you should read carefully and in their entirety. You may obtain the information incorporated by reference in this proxy statement without charge by following the instructions under “Where You Can Find More Information” beginning on page 98.

What is this document?

This document is the proxy statement of Buckeye Technologies Inc. for the Special Meeting of Stockholders to be held at 9:00 a.m., Central Time, on August 15, 2013. A proxy card is included. This document and the form of proxy card are first being mailed or given to stockholders on or about July 12, 2013.

What is the date and time of the Special Meeting?

The Special Meeting is scheduled to be held on August 15, 2013 at 9:00 a.m., Central Time.

Where will the Special Meeting be held?

The Special Meeting is being held at our headquarters, 1001 Tillman Street, Memphis, Tennessee 38112.

Why am I receiving this proxy statement?

On June 26, 2013, the Purchaser elected to terminate the previously announced tender offer in accordance with the terms of the Merger Agreement and to convert to a “long form” merger in its pending acquisition of Buckeye. American Stock Transfer & Trust Company, LLC, the depositary for the tender offer, advised Georgia-Pacific that prior to the expiration of the tender offer, approximately 83 percent of the issued and outstanding Shares, on a fully diluted basis, had been validly tendered and not properly withdrawn in the tender offer. Under the Merger Agreement, Buckeye has agreed to hold a special meeting of its stockholders promptly to consider and vote on, among other things, the adoption of the Merger Agreement. You are receiving this proxy statement because you were one of our stockholders of record on July 8, 2013, the record date for the Special Meeting. We are sending this proxy statement and the form of proxy card to solicit your proxy to vote upon proposals to (1) adopt the Merger Agreement, (2) adjourn the Special Meeting, if necessary or appropriate, including to solicit additional votes in favor of the proposal to adopt the Merger Agreement, if there are insufficient votes to adopt the Merger Agreement at the time of the Special Meeting and (3) approve a non-binding advisory proposal to approve the Merger-related compensation payable to our named executive officers.

What is a proxy?

It is your legal designation of another person, called a “proxy,” to vote the stock you own. The document that designates someone as your proxy is also called a proxy or a proxy card.

Who is paying the costs to prepare this proxy statement and solicit my proxy?

Buckeye will pay all expenses of this solicitation, including the cost of preparing and mailing this proxy statement and the form of proxy card.

Who is soliciting my proxy, and will anyone be compensated to solicit my proxy?

Your proxy is being solicited by and on behalf of our Board. In addition to solicitation by use of the mails, proxies may be solicited by our officers and employees in person or by telephone, electronic mail, facsimile

 

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transmission or other means of communication. Our officers and employees will not be additionally compensated, but they may be reimbursed for out-of-pocket expenses in connection with any solicitation. We also may reimburse custodians, nominees and fiduciaries for their expenses in sending proxies and proxy material to beneficial owners. We may incur the fees and expenses of hiring the services of a solicitation agent in connection with this proxy solicitation to the extent we determine that engaging a solicitation agent is in the best interest of Buckeye. We have agreed to pay MacKenzie Partners, Inc. a fee of approximately $50,000 for its services and to reimburse reasonable out of pocket expenses.

What if I have a disability?

If you are disabled and would like to participate in the Special Meeting, we can provide reasonable assistance. Please send any request for assistance to Buckeye Technologies Inc., P.O. Box 80407, 1001 Tillman Street, Memphis, TN 38108-0407, Attention: Corporate Secretary, at least two weeks before the meeting.

What is Buckeye Technologies Inc., and where is it located?

We are a leading manufacturer and marketer of specialty fibers and nonwoven materials. We are headquartered in Memphis, Tennessee, USA, and currently operate facilities in the United States and Germany. Our products are sold worldwide to makers of consumer and industrial goods. We are the only manufacturer in the world offering cellulose-based specialty products made from both wood and cotton and utilizing wetlaid and airlaid technologies. As a result, we produce and market a broader range of cellulose-based specialty products than any of our competitors.

Where are the Shares traded?

Shares are traded and quoted on the NYSE under the symbol “BKI.”

Who is entitled to attend and vote at the Special Meeting?

Only stockholders of record at the close of business on the record date, July 8, 2013, are entitled to receive notice of the Special Meeting and to vote the Shares for which they are stockholders of record on that date at the Special Meeting, or any postponement or adjournment of the Special Meeting. A list of our stockholders will be open to the examination of any stockholder, for any purpose germane to the Special Meeting, at our headquarters for a period of ten days prior to the Special Meeting. On July 8, 2013, we had 39,528,015 Shares outstanding.

Stockholders of Record: Shares Registered in Your Name. If, on July 8, 2013, your Shares were registered directly in your name with our transfer agent, American Stock Transfer & Trust Company, LLC, then you are a stockholder of record. As a stockholder of record, you may vote in person at the Special Meeting or vote by proxy. Whether or not you plan to attend the Special Meeting, we urge you to fill out and return the enclosed proxy card, or vote by proxy over the telephone or on the Internet as instructed below, to ensure your vote is counted.

Beneficial Owner: Shares Registered in the Name of a Broker or Bank. If, on July 8, 2013, your Shares were held in an account at a brokerage firm, bank, dealer or other similar organization, then you are the beneficial owner of shares held in “street name” and these proxy materials are being forwarded to you by that organization. The organization holding your account is considered to be the stockholder of record for purposes of voting at the Special Meeting. As a beneficial owner, you have the right to direct your broker or other agent on how to vote the shares in your account. You are also invited to attend the Special Meeting. However, since you are not the stockholder of record, you may not vote your Shares in person at the Special Meeting unless you request and obtain a valid proxy from your broker or other agent.

 

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What am I voting on and what does the Board recommend?

 

You will be asked to vote on the following three items:

  

Our Board recommends that you vote:

To consider and vote on a proposal to adopt the Merger Agreement;    “FOR” approval of the proposal to adopt the Merger Agreement;
To consider and vote upon a proposal to adjourn the Special Meeting, if necessary and appropriate, to solicit additional proxies if there are insufficient votes at the time of the Special Meeting to approve the proposal to adopt the Merger Agreement; and    “FOR” the proposal to adjourn the Special Meeting; and
To consider and approve a non-binding advisory proposal to approve the Merger-related compensation payable to our named executive officers.    “FOR” the non-binding advisory proposal to approve the Merger-related compensation payable to our named executive officers.

What effects will the Merger have on Buckeye?

If the proposal to adopt the Merger Agreement is approved by our stockholders and the other closing conditions under the Merger Agreement have been satisfied or waived, Purchaser will merge with and into Buckeye. Upon completion of the Merger, Buckeye will become an indirect wholly-owned subsidiary of Georgia Pacific and will no longer be a publicly held corporation, and you will no longer have any interest in our future earnings or growth. In addition, the Shares will be delisted from the NYSE and deregistered under the Exchange Act, and we will no longer be required to file periodic reports with the SEC on account of the Shares.

Did Purchaser commence a tender offer for the Shares?

Yes. On May 7, 2013, Purchaser commenced the Offer for all of the issued and outstanding Shares, including Restricted Shares. The Offer was terminated in accordance with the Merger Agreement on June 25, 2013.

Since the Offer was terminated in accordance with the Merger Agreement, and the Merger Agreement is not terminated, the Merger will only be able to be consummated, subject to the terms and conditions of the Merger Agreement, after the stockholders of Buckeye have adopted the Merger Agreement at a special meeting of stockholders.

We have prepared this proxy statement in connection with the solicitation of proxies for the Special Meeting to obtain stockholder approval of the adoption of the Merger Agreement in order to be able to consummate the Merger.

You may vote your Shares at the Special Meeting regardless of whether you tendered your Shares in the Offer because you were a stockholder as of the record date of the meeting.

What will I receive if the Merger is completed?

Upon completion of the Merger, you will be entitled to receive the per Share Merger Consideration, subject to any withholding of taxes required by applicable law, for each Share that you own unless you have properly exercised and not lost or withdrawn your appraisal rights under the DGCL with respect to such Shares.

When do you expect the Merger to be completed?

We are working towards completing the Merger as soon as possible. If the Merger is approved at the Special Meeting then we anticipate that the Merger will be completed promptly after timely satisfaction of the other necessary closing conditions, including receipt of antitrust clearance.

 

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When will I receive the cash payment for my Shares?

Assuming that you do not elect to exercise your appraisal rights, shortly after the Effective Time, the paying agent will send to you a letter of transmittal with instructions regarding the surrender of your shares in exchange for the per Share Merger Consideration. Once you have delivered an executed copy of the letter of transmittal together with any other required documentation to the paying agent, it will promptly pay, on behalf of Purchaser, the Merger Consideration owing to you, less any required withholding taxes. Payment of the per Share Merger Consideration owed to current and former employees of Buckeye who hold Restricted Shares will be transmitted to Buckeye and subsequently distributed through Buckeye’s payroll system, less any amount of applicable income and employment tax withholding due and not previously withheld.

What happens if the Merger is not completed?

If the Merger Agreement is not adopted by the Buckeye stockholders or if the Merger is not completed for any other reason, the Buckeye stockholders will not receive any payment for their Shares. Instead, Buckeye will remain an independent public company, and the Shares will continue to be listed and traded on the NYSE. Under specified circumstances, Buckeye may be required to pay to Georgia-Pacific a fee with respect to the termination of the Merger Agreement, as described under “The Merger Agreement—Effect of Termination and Termination Fee” beginning on page 84.

Is the Merger expected to be taxable to me?

Yes. The exchange of Unrestricted Shares for cash in the Merger will generally be a taxable transaction to U.S. holders for U.S. federal income tax purposes. Holders of Restricted Shares should consult with their tax advisors as to the particular tax consequences of the Merger to them. In general, a U.S. Holder whose Unrestricted Shares are converted into the right to receive cash in the Merger will recognize gain or loss for U.S. federal income tax purposes in an amount equal to the difference, if any, between the amount of cash received with respect to such Shares (determined before the deduction of any required withholding taxes) and its adjusted tax basis in such Shares. Gain or loss must be calculated separately for each block of Unrestricted Shares (i.e., shares acquired at the same cost in a single transaction) exchanged for cash in the Merger. Any such gain or loss will be capital gain or loss if the holder holds such Shares as capital assets, and will be long-term capital gain or loss if the holding period for such Shares exceeds one year. Backup withholding may also apply to the cash payments made pursuant to the Merger unless the U.S. holder or other payee provides a taxpayer identification number, certifies that such number is correct and otherwise complies with the backup withholding rules

Payments made to a non-U.S. holder with respect to Unrestricted Shares exchanged for cash pursuant to the Merger will generally be exempt from U.S. federal income tax unless certain conditions are satisfied, such as a determination that Buckeye is a “U.S. real property holding corporation.” A non-U.S. holder may, however, be subject to backup withholding with respect to the cash payments made pursuant to the Merger, unless the holder certifies that it is not a U.S. person or otherwise establishes a valid exemption from backup withholding tax.

You should read “The Merger—Material United States Federal Income Tax Consequences of the Merger” beginning on page 58 for definitions of “Unrestricted Shares,” “U.S. holder” and “non-U.S. holder,” and for a more detailed discussion of the material U.S. federal income tax consequences of the Merger. You should also consult your tax advisor with respect to the specific tax consequences to you in connection with the Merger in light of your own particular circumstances, including federal estate, gift and other non-income tax consequences, and tax consequences under state, local or foreign tax laws.

Do any of Buckeye’s directors or officers have interests in the Merger that may differ from or be in addition to my interests as a stockholder?

Yes. In considering the recommendation of the Board with respect to the proposal to adopt the Merger Agreement, you should be aware that our directors and executive officers have interests in the Merger that are different from, or in addition to, the interests of our stockholders generally. The Board was aware of and

 

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considered these interests, among other matters, in evaluating and negotiating the Merger Agreement and the Merger, and in recommending that the Merger Agreement be adopted by the stockholders of Buckeye. See “The Merger—Interests of Certain Persons in the Merger” beginning on page 46.

When will the stockholders’ list be available for examination?

A complete list of the stockholders of record as of the record date will be available for examination by stockholders of record beginning on August 5, 2013 at Buckeye’s headquarters and will continue to be available through and during the Special Meeting.

How do I vote?

Stockholder of Record: Shares Registered in Your Name. If you are a stockholder of record, you may vote in person at the Special Meeting, vote by proxy using the enclosed proxy card, vote by proxy over the telephone, or vote by proxy on the Internet. Whether or not you plan to attend the Special Meeting, we urge you to vote by proxy to ensure your vote is counted. You may still attend the Special Meeting and vote in person if you have already voted by proxy.

 

   

To vote in person, come to the Special Meeting and we will give you a ballot when you arrive.

 

   

To vote using the enclosed proxy card, simply complete, sign and date the enclosed proxy card and return it promptly in the postage paid envelope provided. If you return your signed proxy card to us before the Special Meeting, we will vote your shares as you direct.

 

   

To vote over the telephone, call the toll-free number (for residents of the United States) listed on your proxy card and follow the instructions provided by the recorded message. Your vote must be received by 11:59 p.m., Eastern Daylight Time on August 14, 2013 to be counted.

 

   

You can choose to vote your shares at any time using the Internet site listed on your proxy card. This site will give you the opportunity to make your selections and confirm that your instructions have been followed. We have designed our Internet voting procedures to authenticate your identity by use of a unique control number found on the enclosed proxy card. We do not charge any separate fees for access to our Internet site. Your vote must be received by 11:59 p.m., Eastern Daylight Time on August 14, 2013 to be counted.

Beneficial Owner: Shares Registered in the Name of a Broker or Bank. If you are a beneficial owner of Shares registered in the name of your broker, bank or other nominee, you should have received a proxy card and voting instructions with these proxy materials from that organization rather than from Buckeye. Simply complete and mail the proxy card to ensure that your vote is counted. Alternatively, you may vote by telephone or over the Internet as instructed by your broker or bank. To vote in person at the Special Meeting, you must obtain a valid proxy from your broker, bank or other nominee. Follow the instructions from your broker or bank included with these proxy materials, or contact your broker or bank to request a proxy form.

Can I change my mind and revoke my proxy?

Yes. You can revoke your proxy at any time before the final vote at the Special Meeting. If you are the record holder of your shares, you may revoke your proxy in any one of three ways:

 

   

You may submit another properly completed proxy bearing a later date;

 

   

You may send a written notice that you are revoking your proxy to Buckeye Technologies Inc., P.O. Box 80407, 1001 Tillman Street, Memphis, TN 38108-0407, Attention: Corporate Secretary; or

 

   

You may attend the Special Meeting and notify the election officials at the Special Meeting that you wish to revoke your proxy and vote in person. Simply attending the Special Meeting will not, by itself, revoke your proxy.

If your Shares are held by your broker or bank as a nominee or agent, you should follow the instructions provided by your broker or bank to revoke your proxy.

 

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What if I receive more than one proxy card?

Multiple proxy cards mean that you have more than one account with brokers or our transfer agent. Please vote all of your Shares. We also recommend that you contact your broker or our transfer agent to consolidate as many accounts as possible under the same name and address. Our transfer agent is American Stock Transfer & Trust Company, LLC, Operations Center, 6201 15th Avenue, Brooklyn, NY 11219, and it may be reached at (800) 937-5449.

Will my Shares be voted if I do not provide my proxy?

If you are the stockholder of record and you do not vote or provide a proxy, your Shares will not be voted.

If your Shares are held in street name, they may not be voted if you do not provide the bank, brokerage firm or other nominee with voting instructions. Currently, banks, brokerage firms or other nominees have the authority under NYSE rules to vote Shares for which their customers do not provide voting instructions on certain “routine” matters.

However, banks, brokerage firms or other nominees are precluded from exercising their voting discretion with respect to approving non-routine matters, such as the proposal to adopt the Merger Agreement, the proposal to approve the adjournment of the Special Meeting, if necessary or appropriate to solicit additional proxies and the non-binding advisory proposal to approve the Merger-related compensation payable to our named executive officers and, as a result, absent specific instructions from the beneficial owner of such Shares, banks, brokerage firms or other nominees are not empowered to vote those Shares on non-routine matters, which we refer to generally as “broker non-votes”.

How many shares must be present to constitute a quorum for the Special Meeting?

A quorum of stockholders is necessary to hold a valid meeting. A quorum will be present if at least a majority of the outstanding Shares entitled to vote are represented by stockholders present at the Special Meeting or by proxy. On July 8, 2013, the record date, there were 39,528,015 Shares outstanding and entitled to vote. Thus, at least 19,764,008 Shares must be represented by stockholders present at the Special Meeting or by proxy to have a quorum.

Your Shares will be counted towards the quorum only if you submit a valid proxy (or one is submitted on your behalf by your broker, bank or other nominee) or if you vote in person at the Special Meeting. Abstentions and broker non-votes will be treated as Shares present for the purpose of determining the presence of a quorum. If there is no quorum, either the Chairman of the meeting or a majority of the votes present in person or represented by proxy at the Special Meeting may adjourn the Special Meeting to another date.

What vote is required to approve each proposal?

 

   

To be approved, the proposal to adopt the Merger Agreement must receive a “FOR” vote from at least 75% of the outstanding Shares entitled to vote;

 

   

To be approved, the proposal to adjourn the Special Meeting, if necessary or appropriate, to solicit additional proxies if there are insufficient votes at the time of the Special Meeting to approve the proposal to adopt the Merger Agreement must receive a “FOR” vote from at least a majority of the Shares present in person or represented by proxy at the Special Meeting and entitled to vote; and

 

   

To be approved, the proposal to consider and approve a non-binding advisory proposal to approve the Merger-related compensation payable to our named executive officers must receive a “FOR” vote from at least a majority of the Shares present in person or represented by proxy at the Special Meeting and entitled to vote.

 

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How are votes counted?

Votes will be counted by the inspector of election appointed for the Special Meeting, who will separately count “FOR”, “AGAINST” and “ABSTAIN” votes and broker non-votes.

Abstentions and broker non-votes will be treated as Shares present for the purpose of determining the presence of a quorum for the transaction of business at the Special Meeting.

On the proposal to adopt the Merger Agreement, you may vote “FOR,” “AGAINST” or “ABSTAIN”. Abstentions and broker non-votes will have the same effect as votes “AGAINST” the proposal to adopt the Merger Agreement.

On the proposal to adjourn the Special Meeting, if necessary or appropriate, to solicit additional proxies, you may vote “FOR,” “AGAINST” or “ABSTAIN”. Abstentions will have the same effect as if you voted “AGAINST” the proposal, but broker non-votes will not have an effect on the proposal.

On the non-binding proposal to approve the Merger-related compensation, you may vote “FOR,” “AGAINST” or “ABSTAIN”. Abstentions will have the same effect as if you voted “AGAINST” the proposal, but broker non-votes will not have an effect on the proposal.

Why am I being asked to cast a vote on a non-binding advisory proposal to approve the Merger-related compensation payable to our named executive officers?

In accordance with the rules promulgated by the SEC, under Section 14A of the Exchange Act, we are providing our stockholders with the opportunity to cast a vote on a non-binding advisory proposal to approve the Merger-related compensation payable to our named executive officers.

What is the “Merger-related compensation”?

The “Merger-related compensation” is certain compensation that is tied to or based on the completion of the Merger and that is payable to our named executive officers. See “Proposal 3—Advisory Vote Regarding Merger-Related Compensation.”

What will happen if stockholders do not approve the “Merger-related compensation” at the Special Meeting?

Approval of the “Merger-related compensation” proposal is not a condition to the completion of the Merger. The vote with respect to the “Merger-related compensation” proposal is an advisory vote and will not be binding on us or Georgia-Pacific. Further, the underlying plans and arrangements are contractual in nature and not, by their terms, subject to stockholder approval. Accordingly, regardless of the outcome of the non-binding advisory vote, if the Merger Agreement is adopted by the stockholders and completed, our named executive officers will receive the “Merger-related compensation” to which they may be entitled.

Will any other matters be voted on at the Special Meeting?

As of the date of this proxy statement, our Board knows of no matters that will be presented for consideration at the Special Meeting other than as described in this proxy statement.

What is the Buckeye’s website address?

Our corporate website address is www.bkitech.com. We make this proxy statement, our annual reports on Form 10-K, quarterly reports on Form 10-Q, current reports on Form 8-K and amendments to those reports filed or furnished pursuant to Section 13(a) or 15(d) of the Exchange Act available on our website in the Investors-SEC Filings section, as soon as reasonably practicable after electronically filing such material with the SEC.

 

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This information is also available free of charge at www.sec.gov, an Internet site maintained by the SEC that contains reports, proxy and information statements, and other information regarding issuers that is filed electronically with the SEC. Stockholders may also read and copy any reports, statements and other information filed by us with the SEC at the SEC public reference room at 100 F Street, N.E., Washington, D.C. 20549. Please call the SEC at 1-800-SEC-0330 or visit the SEC’s website for further information on its public reference room. In addition, stockholders may obtain free copies of the documents filed with the SEC by contacting us at Buckeye Technologies Inc., P.O. Box 80407, 1001 Tillman Street, Memphis, Tennessee 38108-0407, Attention: Corporate Secretary or (901) 320-8125.

The references to our website address and the SEC’s website address do not constitute incorporation by reference of the information contained in these websites and should not be considered part of this document.

What happens if I sell my Shares before the Special Meeting?

The record date for stockholders entitled to vote at the Special Meeting is earlier than both the date of the Special Meeting and the consummation of the Merger. If you transfer your Shares after the record date but before the Special Meeting, unless special arrangements (such as provision of a proxy) are made between you and the person to whom you transfer your Shares and each of you notifies Buckeye in writing of such special arrangements, you will retain your right to vote such shares at the Special Meeting but will transfer the right to receive the per Share Merger Consideration to the person to whom you transfer your shares.

What do I need to do now?

Even if you plan to attend the Special Meeting, after carefully reading and considering the information contained in this proxy statement, please vote promptly to ensure that your Shares are represented at the Special Meeting. If you hold your Shares in your own name as the stockholder of record, please vote your Shares by (i) completing, signing, dating and returning the enclosed proxy card in the accompanying prepaid reply envelope, (ii) using the telephone number printed on your proxy card or (iii) using the Internet voting instructions printed on your proxy card. If you decide to attend the Special Meeting and vote in person, your vote by ballot will revoke any proxy previously submitted. If you are a beneficial owner, please refer to the instructions provided by your bank, brokerage firm or other nominee to see which of the above choices are available to you.

Should I send in my stock certificates now?

No. You will be sent a letter of transmittal as soon as reasonably practicable after the completion of the Merger describing how you may exchange your Shares for the per Share Merger Consideration. If your Shares are held in “street name” by your bank, brokerage firm or other nominee, you will receive instructions from your bank, brokerage firm or other nominee as to how to effect the surrender of your “street name” Shares in exchange for the per Share Merger Consideration. Please do NOT return your stock certificate(s) with your proxy.

I already sent my stock certificates to American Stock Transfer & Trust Company, LLC in connection with the Offer. What do I need to do to get my Merger Consideration?

Your stock certificates will be returned to you. If you tendered your Shares by book-entry transfer into American Stock Transfer & Trust Company, LLC’s account at The Depository Trust Company, or “DTC”, those shares will be credited to an account maintained at the DTC, promptly following the termination of the Offer. If you tendered your Restricted Shares by book-entry transfer, those Restricted Shares will be credited to the applicable account maintained at American Stock Transfer & Trust Company, LLC, promptly following the termination of the Offer. If the Merger Agreement is adopted and other conditions to the Merger are satisfied, shortly after the Merger is completed you will receive a new letter of transmittal with instructions informing you how to send in your stock certificates to American Stock Transfer & Trust Company, LLC, the paying agent appointed by Georgia-Pacific. YOU SHOULD NOT SEND ANY STOCK CERTIFICATES WITH YOUR PROXY CARD.

 

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Am I entitled to exercise appraisal rights under the DGCL instead of receiving the per Share Merger Consideration for my Shares?

Yes. As a holder of Shares, you are entitled to exercise appraisal rights under the DGCL in connection with the Merger if you take certain actions and meet certain conditions. See “Appraisal Rights” beginning on page 95.

Who can help answer my other questions?

If you have additional questions about the Merger, need assistance in submitting your proxy or voting your Shares, or need additional copies of the proxy statement or the enclosed proxy card, please call MacKenzie Partners, Inc. toll-free at 800-322-2885 or collect at 212-929-5500.

 

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SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS

Any statements made regarding the proposed transaction between Georgia-Pacific and Buckeye, the expected timetable for completing the transaction, successful integration of the business, benefits of the transaction, earnings and any other statements contained in this proxy statement that are not purely historical fact are “forward-looking statements” that are based on management’s beliefs, certain assumptions and current expectations as of the date hereof and which we believe are reasonable. These statements may be identified by their use of forward-looking terminology such as the words “expects,” “projects,” “anticipates,” “intends” and other similar words. Such forward-looking statements involve risks and uncertainties that could cause actual results to differ materially from those projected or implied. These risks and uncertainties include, but are not limited to, general economic, business and market conditions and the satisfaction of the conditions to closing of the proposed transactions. Other risks and uncertainties that could cause actual results to differ from those contained in the forward-looking statements include those that may be contained from time to time in the documents we file with the SEC, including our annual report on Form 10-K for the fiscal year ended June 30, 2012 and quarterly and current reports on Form 10-Q and Form 8-K. The forward-looking statements contained in this proxy statement are made as of the date hereof, and we do not undertake any obligation to update any forward-looking statements, whether as a result of future events, new information or otherwise, except as expressly required by applicable law including the requirements of Regulation 14A under the Exchange Act and Schedule 14A.

 

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PROPOSAL 1

ADOPTION OF THE MERGER AGREEMENT

THE MERGER

The following summary of certain provisions of the Merger Agreement is qualified by reference to the Merger Agreement itself, which is attached to this proxy statement as Annex A. You should read the Merger Agreement for a more complete description of the provisions summarized below. Capitalized terms used herein and not otherwise defined have the meanings set forth in the Merger Agreement.

Parties to the Merger

Buckeye Technologies Inc.

1001 Tillman Street

Memphis, Tennessee 38112

(901) 320-8100

Buckeye Technologies Inc., a Delaware corporation, is a manufacturer and distributor of value-added cellulose-based specialty products used in numerous applications, including disposable diapers, personal hygiene products, engine, air and oil filters, concrete reinforcing fibers, food casings, cigarette filters, rayon filaments, acetate plastics, thickeners and papers. Buckeye’s products are produced in the United States and Germany, and are sold in approximately 60 countries worldwide. Buckeye is listed on the NYSE under the symbol “BKI.”

For additional information about Buckeye and our business, see “Where You Can Find More Information” on page 98.

Georgia-Pacific LLC

133 Peachtree St. NE

Atlanta, Georgia 30303

(404) 652-4000

Georgia-Pacific, a Delaware limited liability company, is a one of the largest global diversified forest products companies and among the leading manufacturers of consumer tissue-based products, disposable tableware, containerboard, corrugated packaging and building products such as wood structural panels, lumber and other wood products, gypsum and chemicals.

GP Cellulose Group LLC

133 Peachtree St. NE

Atlanta, Georgia 30303

(404) 652-4000

The Purchaser, a Delaware limited liability company, was formed in 2007 as a shell entity for the purpose of making acquisitions. Since its formation, the Purchaser has not completed any acquisitions or otherwise commenced business operations. If the Merger closes, the sole purpose of the Purchaser will be to effect the transactions contemplated by the Merger Agreement (including the Merger). The Purchaser is an indirect wholly-owned subsidiary of Georgia-Pacific. Until immediately before the Effective Time, it is not anticipated that the Purchaser will have any significant assets or liabilities or engage in any activities other than those incidental to the Merger.

 

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Merger Consideration

In the Merger, each outstanding Share (other than Shares owned by Buckeye or by Georgia-Pacific, Purchaser, or any of their respective subsidiaries and other than Shares owned by stockholders that are entitled to and properly exercise appraisal rights under Delaware law) will be converted into the right to receive the per Share Merger Consideration of $37.50, net to the holder thereof in cash, without interest, subject to any withholding of taxes required by applicable law.

Background of the Merger Agreement

Our Board, with the assistance of Buckeye’s senior management team, regularly reviews and considers Buckeye’s long-term strategic plan with the goal of maximizing stockholder value. As part of this ongoing process, the Board periodically considers strategic opportunities, including acquisitions and divestitures.

In March 2012, Buckeye received an inquiry from the financial advisor to a specialty products company (“Company A”) regarding a potential merger of equals with the Company. Buckeye entered into a mutual confidentiality agreement with Company A on April 24, 2012. The confidentiality agreement includes a standstill that would prevent Company A from making an offer to acquire Buckeye without Board invitation or approval; however, the Merger Agreement provides that Buckeye may, upon request from a third party, waive any standstill provision to permit such third party to make a non-public competing proposal to the Board. Buckeye and Company A exchanged due diligence materials and had preliminary discussions regarding a potential combination, following which each party undertook to consider the synergies of a potential transaction. No proposal was made by either party.

At its April 2012 retreat, our Board initiated a process to review strategic growth alternatives available to Buckeye, including possible significant acquisition transactions. Following an initial screening of several qualified financial advisory firms by the senior management team, the Board selected Barclays from among two finalists to assist Buckeye in connection with this review. The Board selected Barclays because of its familiarity with Buckeye and its qualifications, reputation and experience in the valuation of businesses and securities in connection with mergers and acquisitions generally.

In late May 2012, as a result of the Board’s review of strategic growth alternatives, Buckeye began exploring the potential acquisition of a leading manufacturer of specialty wood-based products (“Company B”) and engaged Barclays to provide financial advice in connection with the transaction and Dechert LLP (“Dechert”) to provide legal advice in connection with the transaction. Negotiations over the potential transaction with Company B continued through late August 2012, at which point the Board, with the assistance of senior management and after consultation with its legal and financial advisors, determined that the terms of the transaction would not be in the best interests of Buckeye and its stockholders and terminated discussions with Company B.

In July 2012, Buckeye received an inquiry from a private equity firm (“Company C”) regarding a potential transaction and met with representatives of Company C in New York, New York. No confidentiality agreement was entered into at that time, and no proposal was made.

In late July 2012, John Crowe, our Chairman of the Board and Chief Executive Officer, received an inquiry from a leading manufacturer of specialty products (“Company D”) regarding a potential acquisition by Company D of Buckeye’s nonwovens business. Mr. Crowe and Sheila Jordan Cunningham, our Senior Vice President, General Counsel and Secretary, met with the chief executive officer and the general counsel of Company D to discuss the potential acquisition by Company D of Buckeye’s nonwovens business. No proposal was made by Company D at the meeting.

On July 23, 2012, representatives of Buckeye and Company A met in Memphis, Tennessee for management presentations by each of Buckeye and Company A. Management of both Buckeye and Company A postponed further discussions because of other potential transactions under consideration.

 

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On July 31, 2012, the Board held a special meeting, with Barclays in attendance, at which representatives of Barclays provided an update on potential strategic growth opportunities, including a potential transaction with Company A. At that meeting, Mr. Crowe updated the Board as to a potential sale of Buckeye’s nonwovens business, including Company D’s interest in acquiring the business, and received Board approval to engage in preliminary discussions with third parties, including Company D, regarding a sales process for the business.

Also on July 31, 2012, Mr. Crowe received an invitation from Mr. David Park, Senior Vice President of Strategy and Business Development of Georgia-Pacific and President of the Purchaser, to attend the U.S. Open tennis tournament in New York.

On August 27, 2012, Buckeye and Company D entered into a confidentiality agreement with respect to the potential sale to Company D of the nonwovens business. The confidentiality agreement did not include any standstill or other restrictions that would prevent Company D from making an offer to acquire Buckeye.

In early September 2012, Mr. Crowe and his wife were the guests of Mr. Park and Mr. Pat Boushka, President of Georgia-Pacific’s cellulose business, and their spouses at the U.S. Open. They did not have discussions regarding any possible transaction involving Georgia-Pacific or Buckeye.

In early September 2012, Mr. Crowe received an inquiry from a leading paper products company (“Company E”) regarding a potential acquisition by Company E of Buckeye’s nonwovens business. The parties entered into a confidentiality agreement on September 14, 2012. The confidentiality agreement included a standstill that generally prohibited Company E from making any proposal regarding a possible acquisition of Buckeye other than a proposal to the Board on a confidential basis. However, Company E’s obligations and restrictions under the standstill terminated upon Buckeye’s execution of the Merger Agreement with Georgia-Pacific.

On September 19, 2012, Buckeye engaged Barclays to assist in a potential sale of Buckeye’s nonwovens business. In early October 2012, Buckeye distributed a summary confidential information memorandum, or “teaser,” for Buckeye’s nonwoven business to Company D, Company E and a private equity firm (“Company F”) whose financial advisor had contacted Mr. Crowe regarding a potential acquisition of Buckeye’s nonwovens business. Buckeye and Company F entered into a confidentiality agreement on October 4, 2012. The confidentiality agreement included a standstill that generally prohibited Company F from making any proposal regarding a possible acquisition of Buckeye other than a proposal to the Board on a confidential basis.

In early October 2012, Buckeye received a second inquiry from Company C, this time regarding a potential leveraged buyout of Buckeye, following which Buckeye and Company C entered into a confidentiality agreement. The confidentiality agreement contained a standstill that generally prohibited Company C from making any proposal regarding a possible acquisition of Buckeye other than a proposal to the Board on a confidential basis and only to the extent such proposal would not require Buckeye to make a public announcement. On October 9, 2012, members of Buckeye’s senior management team met with Company C and its financial advisor in Memphis, Tennessee and provided confidential information regarding the Company and its financial performance and outlook. A representative of Company C subsequently informed Mr. Crowe that Company C could not rationalize the economics of a leveraged buyout of Buckeye, and discussions were terminated. No proposal was ever made by Company C.

In early October 2012, Mr. Crowe and representatives of a financial advisory firm met with representatives of a leading dissolving pulp producer (“Company G”) regarding a potential joint venture. Mr. Crowe indicated that Buckeye’s interest would likely be limited to a potential acquisition by Buckeye of certain of Company G’s operations located outside of the United States.

In mid-October 2012, Buckeye received an inquiry from a consortium of two private equity firms (collectively “Company H”) regarding a potential leveraged buyout of Buckeye, following which Buckeye and Company H entered into a confidentiality agreement. The confidentiality agreement contained a standstill that

 

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generally prohibited Company H from making any proposal regarding a possible acquisition of Buckeye other than to the Board on a confidential basis. Following an introductory meeting in New York, on October 16, 2012, members of Buckeye’s senior management team met with Company H and its financial advisor in Memphis, Tennessee and provided confidential information regarding Buckeye and its financial performance and outlook. A representative of Company H subsequently informed Mr. Crowe that Company H could not rationalize the economics of a leveraged buyout of Buckeye, and discussions were terminated. No proposal was ever made by Company H.

Each of Company D, Company E and Company F submitted an indicative proposal to acquire Buckeye’s nonwovens business in early November 2012. Following discussions with Barclays, senior management suspended discussions with Company E and Company F because senior management believed that their indicative valuations did not present a sufficient value opportunity.

On October 23, 2012, the Board held a meeting at which Mr. Crowe updated the Board regarding the discussions with Company C and Company H.

On November 16, 2012, the Board held a special meeting, with Barclays and Dechert in attendance, at which Mr. Crowe updated the Board, on the pending discussions for Buckeye’s nonwovens business. The Board directed management to terminate discussions with Company E and Company F because their indicative valuations did not present sufficient value, and continue discussions with Company D, directing Barclays to seek a higher valuation for the nonwovens business from Company D.

In late November 2012, Mr. Crowe and Mr. Park met for dinner in Memphis, Tennessee. Although they did not have any discussions regarding any possible transaction involving Georgia-Pacific or Buckeye, Mr. Park indicated that he would contact Mr. Crowe again in January.

In early December 2012, with discussions progressing regarding a potential sale of Buckeye’s nonwovens business to Company D, Buckeye entered into an arrangement providing Company D with 90 days of exclusivity to finalize negotiations surrounding a sale of Buckeye’s nonwovens business. The exclusivity arrangement applied only to transactions involving Buckeye’s nonwovens business and did not apply to transactions involving Buckeye as a whole.

Also in early December 2012, the financial advisor to Company A contacted Barclays, and proposed discussions regarding either (i) a potential all stock merger of equals or (ii) an acquisition of Buckeye by Company A for $32.00 per share, consisting 50% of cash and 50% of Company A’s common stock. Buckeye’s leadership team determined, after consultation with its advisors, that the proposed valuation, which represented a 14% premium to Buckeye’s stock price at the time, did not present an opportunity for sufficient value to Buckeye’s stockholders to warrant further discussion at that time. Barclays informed Company A that the Company was not interested in pursuing further discussions at that time due to management’s focus on other strategic projects and the absence of identifiable synergies in a transaction with Company A. Mr. Crowe discussed the Company A proposal, a potential sale of Buckeye’s nonwovens business and other strategic transactions with each director individually during late December 2012 and early January 2013.

In late January 2013, Buckeye delivered to Company D a term sheet for the proposed sale of Buckeye’s nonwovens business. On February 20, 2013, representatives of Company D participated in a management presentation with representatives of Buckeye, Barclays and Dechert regarding Buckeye’s nonwovens business. Representatives of Company D subsequently participated in visits to Buckeye’s Gaston, North Carolina and Steinfurt, Germany plants.

On January 22, 2013, Buckeye engaged Barclays to serve as its financial advisor with respect to a potential acquisition of certain of Company G’s operations outside the United States, following which Buckeye submitted a non-binding indication of interest to Company G in January 2013. No confidentiality agreement was signed with Company G.

 

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On January 25, 2013, Mr. Crowe received a request for confidential information from Mr. Park so that Georgia-Pacific could explore a potential negotiated transaction with Buckeye. On January 30, 2013, Buckeye and Georgia-Pacific entered into the Confidentiality Agreement and Buckeye subsequently provided the requested confidential information to Georgia-Pacific. The Confidentiality Agreement contained a standstill that generally prohibited Georgia-Pacific from making any proposal regarding a possible acquisition of Buckeye other than a proposal to the Board on a confidential basis and only to the extent such proposal would not require Buckeye to make a public announcement until such time as Buckeye announced a transaction with a third party.

On January 31, 2013, Mr. Crowe, together with representatives of Barclays and Dechert, participated in a telephonic discussion with Mr. Park and other representatives of Georgia-Pacific regarding Buckeye’s financial performance and outlook.

In early February 2013, members of the senior management team and Barclays participated in a preliminary meeting with representatives of a specialty chemicals business (“Company I”) regarding a possible joint venture or acquisition by Buckeye of all or a portion of Company I. The parties did not enter into a confidentiality agreement, and no further discussions were held.

In mid-February 2013, Company A’s financial advisor contacted Barclays to discuss the potential merger of equals or acquisition of Buckeye by Company A. Barclays noted that Buckeye remained focused on other strategic projects but would convey Company A’s interests to Buckeye.

On February 21, 2013, Mr. Park and Mr. Boushka met with Mr. Crowe and made a non-binding indication of interest for Georgia-Pacific to acquire Buckeye for $35.00 per share, in cash. Mr. Crowe indicated that, in his view, $35.00 per share did not present a value that would be compelling to the Board, but indicated that the Board would likely be more receptive to a valuation closer to $40.00 per share.

On February 28, 2013, Mr. Park delivered to Mr. Crowe a non-binding indication of interest for Georgia-Pacific to acquire Buckeye for $37.50 per share, in cash, and requested the execution of a 45-day exclusivity agreement. The proposed transaction would be structured as an all cash tender offer, and Georgia-Pacific indicated that the absence of a financing condition would allow Georgia-Pacific to move quickly towards execution of definitive documentation. Mr. Crowe indicated that he would present the indication of interest to the Board and made Mr. Park aware that Buckeye was exploring a potential sale of its nonwovens business. Mr. Crowe did not provide Mr. Park or Georgia-Pacific the identity of Company D. Mr. Park indicated that Georgia-Pacific’s indication of interest was not conditioned on Buckeye’s termination of its discussions regarding the sale of the nonwovens business.

On March 5, 2013, the exclusivity period granted to Company D with respect to a potential sale of Buckeye’s nonwovens business expired as per the terms of the exclusivity agreement and was not extended. On March 6, 2013, Company D delivered to Buckeye a summary of business issues raised by Buckeye’s January 2013 term sheet and proposed an alternative transaction structure that would result in meaningful adverse tax consequences to Buckeye.

On March 7, 2013, the Board held a special meeting with representatives of senior management, Barclays and Dechert in attendance to discuss Georgia-Pacific’s non-binding indication of interest. Representatives of Dechert provided a summary of the Board’s fiduciary obligations in connection with the Board’s consideration of the proposal, and representatives of Barclays provided a summary of the proposal, including the proposed purchase price, financing, timing, conditionality, request for exclusivity, transaction structure and the potential impact on a sale of Buckeye’s nonwovens business. Representatives of Barclays also updated the Board on Buckeye’s alternative strategic growth initiatives. The Board discussed, with the assistance of advisors, Georgia-Pacific’s request for exclusivity and whether to contact any other parties in an effort solicit other offers for an acquisition of Buckeye. Representatives of Barclays summarized for the Board the prior proposal received from Company A. Barclays advised that, based on the history of prior discussions with Company A and Company A’s

 

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financial position, they did not believe that Company A would be able to match the offer proposed by Georgia-Pacific. In addition, representatives of Barclays noted that, although Barclays was in contact with the numerous other industry participants with respect to Buckeye through the prior summarized alternative strategic growth initiatives, no such person had made any inquiry regarding a potential acquisition of Buckeye. Finally, representatives of Barclays noted that, in Barclays’ view based on its experience in the industry, it was unlikely that there was a credible alternative bidder, including private equity firms, that would be able to offer the same or a higher price than the valuation offered by Georgia-Pacific. Senior management discussed with the Board its belief, based in part on the explicit request for exclusivity, that if Georgia-Pacific learned that Buckeye was pursuing discussions with another party, Georgia-Pacific might terminate discussions with Buckeye. The Board also discussed that it was not actively looking to sell Buckeye and the risks associated with soliciting other offers, including multiple parties conducting due diligence, the increased risk of leaks and the potential impact on customers and employees and the business that could arise from these risks. Finally the Board also considered that even if Buckeye were to enter into an agreement with Georgia-Pacific, Buckeye would have the ability to consider certain competing offers thereafter subject to customary non-solicitation and termination fee provisions. Following these discussions, the Board concluded that it was in the best interests of Buckeye’s stockholders for Buckeye to provide Georgia-Pacific with access to additional information and due diligence. The Board further requested that Buckeye’s senior management team clarify with Georgia-Pacific the implications (positive or negative) on the Georgia-Pacific proposal of the potential nonwovens transaction with Company D and directed Buckeye’s senior management team to continue its investigation of various strategic alternatives, including the potential acquisition by Buckeye of certain of Company G’s operations located outside of the United States. Finally, the Board determined not to contact Company A or solicit additional bids at that time due, in part, to the views of senior management and Barclays described above, and that Buckeye would not agree to exclusivity arrangements with Georgia-Pacific.

On March 8, 2013, representatives of Barclays spoke with Mr. Park to inform him that the Board had authorized Buckeye’s management to provide Georgia-Pacific access to additional due diligence information, subject to the Confidentiality Agreement, but that Buckeye would not grant exclusivity. Mr. Park communicated to the representatives of Barclays the importance of exclusivity to Georgia Pacific and that, while Georgia-Pacific at this time was prepared to proceed without exclusivity, Georgia-Pacific expected that Buckeye would be pursuing discussions only with Georgia-Pacific, that Georgia-Pacific would terminate discussions if Buckeye had pre-signing discussions with any other party and that Georgia-Pacific would likely revisit the need with Buckeye for a formal exclusivity arrangement at a later date if discussions proceeded. Subsequently, Mr. Crowe communicated to Mr. Park that Buckeye would not sign the exclusivity agreement but indicated that Buckeye was not currently engaged in discussions with other parties for a sale of Buckeye.

On March 13, 2013, Barclays received from Georgia-Pacific a comprehensive due diligence request list, and Buckeye began population of an electronic dataroom. From this date through April 23, 2013, Georgia-Pacific and its advisors conducted due diligence on Buckeye.

On March 21, 2013, after a review of any potential conflicts of interest and following disclosure by Barclays of its familiarity with Georgia-Pacific, including its role as a lender under Georgia-Pacific’s revolving credit facility, Buckeye formally engaged Barclays to serve as its financial advisor in connection with a potential sale of Buckeye.

On March 22, 2013, representatives of Barclays received a call from Company A’s financial advisor requesting a meeting to discuss Company A’s prior proposal. Representatives of Barclays inquired as to whether Company A’s view on price remained the same (i.e., an all stock merger of equals with Buckeye or an acquisition by Company A of Buckeye for $32.00 per share with 50% of the consideration payable in Company A’s common stock). Company A’s financial advisor noted that Company A’s ability to pay more for Buckeye would be constrained by current trading multiples of Company A’s stock. Barclays noted that Buckeye remained focused on other strategic projects but would convey Company A’s interests to Buckeye.

 

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On March 26, 2013, representatives from Buckeye, Barclays and Dechert held an all-day management presentation for Georgia-Pacific and its financial advisor in Memphis, Tennessee focusing on Buckeye’s operations, financial performance and outlook.

On March 27 and 28, 2013, representatives of Georgia-Pacific participated in site visits at Buckeye’s Memphis, Tennessee and Perry, Florida plants.

On April 2, 2013, Latham & Watkins LLP (“Latham”), outside legal counsel to Georgia-Pacific, delivered to Dechert an initial draft of a two-step merger agreement for the proposed transaction. Among other things, the draft proposed a 5.0% termination fee, an evergreen matching right for Georgia-Pacific with respect to superior proposals, the ability for Georgia-Pacific to terminate the transaction if Buckeye had not affirmatively rejected a competing proposal within 20 days of receipt (a “fish or cut bait provision”), reimbursement by Buckeye of Georgia-Pacific’s expenses in the event of a termination of the merger agreement under certain circumstances and the absence of any divestiture commitment, if necessary, in order to obtain antitrust clearance. The draft also contemplated all of Buckeye’s directors and officers would sign support agreements.

On April 3, 2013, the Board held a special telephonic meeting to discuss the potential transaction with Georgia-Pacific and the potential sale of the nonwovens business to Company D. Mr. Crowe also updated the Board on Barclays March 22, 2013 discussion with Company A, as to which the Board took no action. After discussion, the Board authorized senior management, with the assistance of Barclays and Dechert, to begin negotiation of the draft merger agreement received from Georgia-Pacific to enhance terms of the potential transaction, including determining whether there might be upside to Georgia-Pacific’s valuation in the event of a sale of the nonwovens business to Company D, and emphasizing that price, certainty of closing and the ability to consider and, if necessary, terminate the merger agreement for a superior alternative transaction should be focal points in any negotiation. The Board also authorized management, together with representatives of Barclays and Dechert, to engage in further negotiations with respect to pricing, terms and deal structure with Company D regarding the potential sale of Buckeye’s nonwovens business.

On April 7, 2013, Mr. Crowe met in-person with the chief executive officer of Company D near Company D’s headquarters to request a best and final offer for Company D’s potential acquisition of Buckeye’s nonwovens business.

On April 8, 2013, Dechert delivered to Latham a revised draft of the proposed merger agreement, which draft included a termination fee of 2.5%, a one-time matching right for Georgia-Pacific, a rejection of the fish or cut-bait provision, a rejection of reimbursement by Buckeye of Georgia-Pacific’s expenses and a “hell or high water” provision requiring Georgia-Pacific to take any and all actions necessary to obtain antitrust clearance.

On April 9, 2013, Company D delivered to Buckeye, through Barclays, its best and final offer for Buckeye’s nonwovens business. After discussion of this offer with its outside legal and financial advisors, senior management at Buckeye determined that, particularly in light of Company D’s insistence on a transaction structure that was disadvantageous to Buckeye for tax reasons, the limited increase in valuation contemplated by Company D’s final offer and Georgia-Pacific’s confirmation that its proposed valuation of Buckeye would not be increased due to any valuation that Buckeye might be able to achieve through a concurrent sale of the nonwovens business, to suspend discussions with Company D to focus on the potential sale of Buckeye to Georgia-Pacific. Mr. Crowe informed the chief executive officer of Company D that Buckeye was not prepared at the present time to move forward with a sale of the nonwovens business to Company D on the proposed terms.

Also on April 9, 2013, Latham provided to Dechert a business issues list, which was subsequently discussed with Buckeye senior management and representatives of Barclays. The business issues list proposed, among other things, that the termination fee should be meaningfully in excess of 3.0%, evergreen matching rights for Georgia-Pacific, reinsertion of the fish or cut-bait provision, no hell-or-high-water antitrust obligation and specific closing conditions related to compliance. Representatives of Georgia-Pacific, Latham and Dechert discussed and negotiated the issues raised in the business issues list.

 

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On April 11 and 12, 2013, representatives of Buckeye, Georgia-Pacific, Dechert and Latham met in Memphis, Tennessee to discuss the transaction and advance negotiations of the merger agreement, with particular focus on the conditions to the Offer and the Merger, deal protections terms and the scope of representations, warranties and interim operating covenants proposed to be made by Buckeye. Also on April 11 and 12, 2013, representatives of Georgia-Pacific participated in a site visit at Buckeye’s Gaston, North Carolina plant.

On April 11, 2013, the Board held a special meeting, attended by representatives of Barclays and Dechert, to discuss the proposed transaction with Company D and the proposed transaction with Georgia-Pacific. Mr. Crowe updated the Board on Company D’s best and final offer and Georgia-Pacific’s confirmation that its proposed valuation of Buckeye would not be increased due to any valuation that Buckeye might be able to achieve through a concurrent sale of the nonwovens business and noted that, accordingly, he had suspended discussions with Company D pending the outcome of the potential transaction with Georgia-Pacific. The Board approved of that decision. Representatives of Dechert reviewed the Board’s fiduciary duties under Delaware law and their application in a potential transaction with Georgia-Pacific and also reviewed with the Board the current draft of the merger agreement, highlighting provisions related to deal protection, including the non-solicitation provision, matching rights, the superior offer termination right and the termination fee, deal certainty, including antitrust risk allocation, and covenants related to interim operating covenants. Representatives of Barclays reviewed with the Board Barclay’s preliminary financial analysis relating to the proposed purchase price of $37.50 per share. The Board, with the assistance of Barclays, discussed that it was unlikely that there was a credible alternative bidder, including private equity firms, that would be able to offer the same or a higher price than the valuation offered by Georgia-Pacific and the Board’s belief that if Georgia-Pacific learned that Buckeye was pursuing discussions with another party, Georgia-Pacific might terminate discussions with Buckeye. The Board then directed Dechert to negotiate enhanced deal certainty terms and to ensure the deal protection terms were reasonable and provided the Board with adequate ability to satisfy its fiduciary duties, including by seeking a reduced termination fee, and directed Barclays to seek a higher valuation from Georgia-Pacific.

On April 12, 2013, Mr. Park contacted Mr. Crowe to discuss Georgia-Pacific’s valuation of Buckeye based on its ongoing due diligence efforts. Mr. Park informed Mr. Crowe that Georgia-Pacific proposed to reduce its $37.50 price by at least $0.40 per share based on certain items identified in its due diligence review. Mr. Crowe informed Mr. Park that, in his view, the Board would not agree to any price reduction, following which Barclays contacted Georgia-Pacific’s financial advisor to communicate a similar message. Following these calls, at the direction of Buckeye’s senior management team, Buckeye and its legal and financial advisors suspended negotiations with Georgia-Pacific and its advisors.

On April 13, 2013, representatives of UBS Securities LLC, Georgia-Pacific’s financial advisor, called representatives of Barclays and explained Georgia-Pacific’s proposed reduction in the per share purchase price based on Georgia-Pacific’s due diligence review. The representatives of Barclays indicated that any price reduction would likely be unacceptable to Buckeye.

On April 14, 2013, Latham circulated a business issues list that included a package proposal for resolution of the remaining business issues (other than price), which proposal included a termination fee of 3.4%, evergreen matching rights, a commitment to litigate until the extended outside date to obtain antitrust clearance but no divestiture commitment and a prohibition on Buckeye’s payment of any dividends (including its regular quarterly dividend) during the period between signing and closing of a transaction.

On April 15, 2013, Mr. Park called Mr. Crowe and reaffirmed a $37.50 price per share, and Mr. Crowe instructed Buckeye’s legal and financial advisors to resume discussions with Georgia-Pacific and its advisors regarding the transaction. Later that day, Dechert circulated to Latham a draft of the disclosure schedules to the merger agreement and Latham provided a revised draft of the merger agreement which reflected its package proposal that had been delivered to Dechert on April 14, 2013.

On April 16, 2013, representatives of Barclays received a call from Company A’s financial advisor requesting a meeting to discuss its previous proposal. Company A’s financial advisor indicated that, although not

 

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authorized by Company A to make the offer and subject to review with Company A, there might be some flexibility on the $32.00 per share valuation, noting, however, that such flexibility would likely be limited to the mid-$30s per share. Barclays responded that Buckeye remained focused on other strategic projects but would convey Company A’s interests to Buckeye. Barclays also prepared an update on Company A’s proposal that was subsequently shared with the Board.

On April 16, 2013, the parties continued negotiation of the merger agreement. During such negotiations Georgia-Pacific indicated that it was prepared to agree to limited divestiture commitments, if necessary to obtain antitrust clearance as part of the overall package previously provided by Latham on April 14, 2013 for resolution of the remaining business issues, provided that the transaction structure was changed to a dual-track structure.

On April 17, 2013, representatives of Barclays contacted Mr. Park to discuss potential upside in Georgia-Pacific’s proposed valuation. Mr. Park stated that $37.50 per share represented Georgia-Pacific’s best and final offer.

Also, on April 17, 2013, Dechert circulated a business issues list that included Buckeye’s response to Georgia-Pacific’s April 14th package proposal, which response included a termination fee of 3.0% and evergreen matching rights except in connection with a superior proposal that exceeds the per Share Merger Consideration by 5.0% or more.

Later in the evening on April 17, 2013, Latham circulated a revised draft of the merger agreement which did not address Buckeye’s package proposal but did include the proposed divestiture commitment. Among other things, the Latham draft also proposed a termination fee of 3.4%, an evergreen matching right and provided that Georgia-Pacific would have up to 13 months post-signing to obtain regulatory approval.

Between April 18 and 23, 2013, the parties continued to negotiate the terms of the proposed transaction, with particular focus on the dual track structure, the interim operating covenants, the scope and timing of the divestiture commitment, deal protection and deal certainty. Multiple drafts of the merger agreement and disclosure schedules were circulated among the parties. During this period Georgia-Pacific agreed to certain concessions on deal protection including the provision that would only provide one matching right in connection a superior proposal at a price of 10.0% or more than the per Share Merger Consideration.

On April 23, 2013, Mr. Crowe and Mr. Park negotiated the final business issues, including the ability for Buckeye to continue to pay regular quarterly dividends during the period between signing and closing, a 10-month extended outside date for closing of the transaction and a 3.25% termination fee. Also on April 23, 2013, at the insistence of Georgia-Pacific, Buckeye and Barclays amended (i) Barclays’ engagement letter for the sale of the nonwovens business and (ii) Barclays’ engagement letter for the potential acquisition by Buckeye of certain of Company G’s operations outside the United States, in each case effective only as of the consummation of the proposed transaction, to terminate any rights that Barclays may have under such letters to any fee for any subsequent transaction, including any divestiture that may be required under the terms of the Merger Agreement to obtain antitrust clearance.

At 5:00 p.m. Eastern Time on April 23, 2013, the Board held a special meeting in Memphis, Tennessee, attended by telephone by representatives of Barclays and Dechert. Representatives of Dechert updated the Board on the proposed terms of the transaction, with particular emphasis on deal protection and deal certainty, including Georgia-Pacific’s commitment to agree to a divestiture before the extended outside date if necessary to obtain antitrust clearance, and answered questions. Representatives of Barclays then reviewed its financial analyses relating to the proposed purchase price of $37.50 per share, and Barclays also rendered its opinion to the Board to the effect that, as of April 23, 2013 and based upon and subject to the qualifications, limitations and assumptions stated in its opinion, the consideration of $37.50 per share to be offered to the stockholders of Buckeye in the Offer and the Merger was fair, from a financial point of view, to such stockholders. Representatives of Barclays also summarized the most recent proposal received from Company A, noting that it was unlikely that Company A could increase its offer to $37.50 per share based on, among other things, multiples at which Company A’s

 

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stock was trading. Finally, representatives of Barclays noted that they agreed with Buckeye’s strategy not to have solicited alternative bids as it was in Barclays’ view, unlikely that there was a credible alternative bidder likely to meet or exceed the valuation offered by Georgia-Pacific. After further discussion, the Board instructed Dechert to negotiate for additional deal certainty with respect to Georgia-Pacific’s divestiture obligations and temporarily adjourned the meeting in order that Dechert would have time to engage in such negotiations. After additional negotiations among representatives of the parties, during which Georgia-Pacific agreed to certain modifications to its commitment to agree to a divestiture before the extended outside date if necessary to obtain antitrust clearance, the Board reconvened and, after being updated with respect to such modifications, unanimously (i) determined that it is advisable, fair and in the best interests of Buckeye to enter into the Merger Agreement, (ii) determined that the terms of the Merger Agreement, including the Merger, are fair to and in the best interests of Buckeye and its stockholders and are approved and declared advisable, (iii) authorized the Merger Agreement and the transactions contemplated thereby, including the Merger, and (iv) recommended that Buckeye’s stockholders vote in favor of the adoption and approval of the Merger Agreement and the transactions contemplated thereby, including the Merger.

On the evening of April 23, 2013, the parties entered into the Merger Agreement and the directors and senior executive officers of Buckeye entered into the Support Agreements. The transaction was announced via a joint press release prior to the market opening on April 24, 2013.

Recommendation of the Board; Reasons for Recommendation

In evaluating the Merger Agreement, the Merger and the transactions contemplated by the Merger Agreement, the Board consulted with our management and our legal and financial advisors. In reaching its decision to approve the Merger Agreement and to recommend that the holders of Shares adopt and approve the Merger Agreement and the transactions contemplated thereby, the Board considered a variety of factors, including the following reasons that the Board believed supported its decision:

 

   

Premium to Market Price. The Board considered the fact that the per Share Merger Consideration of $37.50 to be received by Buckeye’s stockholders in the Merger represents a significant premium over the market prices at which the Shares traded prior to the announcement of the execution of the Merger Agreement, including:

 

   

a 29.2% premium over the closing price per Share on April 22, 2013, the last trading day before execution of the Merger Agreement;

 

   

a 27.3% premium over the average closing price per Share for the one-month period ended April 22, 2013; and

 

   

a 15.0% premium over the 52-week high closing price per Share and a 57.8% premium over the 52-week low closing price per Share.

 

   

Valuation Multiple. The Board considered the fact that the per Share price of $37.50 represents a valuation of Buckeye at a multiple of 7.9 times Buckeye’s estimated EBITDA for the 2013 fiscal year and 16.5 times Buckeye’s estimated diluted earnings per share for the 2013 fiscal year, each a significant premium over the applicable current multiple.

 

   

Certainty of Value. The Board considered that the consideration to be received by Buckeye’s stockholders in the Offer and the Merger will consist entirely of cash, which provides liquidity and certainty of value to stockholders.

 

   

Available Financial and Business Information as well as Management Forecasts. The Board considered the financial performance of Buckeye during the six months ended December 31, 2012, Buckeye’s projected financial results through the 2015 fiscal year and the uncertainties involved in achieving such projections and the intensifying competition facing Buckeye’s specialty fibers business given increased industry capacity, and in light thereof, the Board believed that the Offer Price of

 

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$37.50 offered greater certainty of value to Buckeye’s stockholders than continuing to operate on a stand-alone basis.

 

   

Strategic Alternatives Available to Buckeye and Continuing with Buckeye’s Current Business Plan. The Board believed, after a review of other strategic opportunities reasonably available to Buckeye, including continuing to operate on a stand-alone basis, the possibility of a sale of the nonwovens business and the possibility of growing the business through a significant acquisition while remaining an independent public company, that, in light of the meaningful risks in executing such strategic alternatives and the potential limited financial upside thereof, the Offer and the Merger represent Buckeye’s best reasonably available prospect for maximizing stockholder value.

 

   

Full and Fair Value. The Board believed that the Offer Price of $37.50 per Share represents full and fair value for the Shares, taking into account the Board’s familiarity with the business, operations, prospects, business strategy, properties, assets, liabilities and financial condition for the fiscal year ended June 30, 2012, the six months ended December 31, 2012 and projected results for the 2013 to 2015 fiscal years and the relative certainty of the consideration in cash for the Offer as compared to forecasted financial results.

 

   

Best Price Reasonably Available. The Board believed that the Offer Price of $37.50 per Share represents the best price reasonably available for the Shares, taking into account that such Offer Price was within or exceeded the range of values implied by each of Barclays’ various financial analyses, and the Board believed that it was unlikely that any other potential buyer would be willing to pay more than $37.50 per Share to acquire Buckeye.

 

   

Terms of the Merger Agreement. For the reasons noted below, the Board believed that the provisions of the Merger Agreement were in the best interests of Buckeye and its stockholders. In particular:

 

   

Likelihood of Completion. The Board considered the limited conditions to the parties’ obligations to complete the Offer and Merger, including the likelihood of the Offer and the Merger being approved by applicable regulatory authorities, particularly in light of Georgia-Pacific’s divestiture commitments, and the absence of any financing condition.

 

   

Right to Respond to Competing Offers; Termination Right for Superior Proposal. The Board considered Buckeye’s ability to, subject to the terms and conditions of the Merger Agreement, provide information to and engage in negotiations with a third party who makes an unsolicited acquisition proposal which would reasonably be expected to lead to a superior proposal, and to terminate the Merger Agreement to enter into a superior proposal concurrently with paying the termination fee, thereby allowing the Board to satisfy its fiduciary duties and consider and, if applicable, accept an offer that the Board determines is a superior proposal.

 

   

Termination Fee. The termination fee of 3.25% of the equity value of the transaction payable to Georgia-Pacific under certain circumstances in connection with a termination of the Merger Agreement, which the Board concluded was reasonable in the context of termination fees payable in comparable transactions and in light of the overall terms of the Merger Agreement and was unlikely to deter other potential buyers from making an offer for Buckeye.

 

   

Limited Matching Rights. The Board considered the fact that Georgia-Pacific has only one matching right in connection with a superior proposal at a price of 10.0% or more than the Offer Price, thereby encouraging potential buyers to make superior proposals that exceed the Offer Price by such percentage.

 

   

Change in Recommendation. The Board considered the ability of the Board, subject to the terms and conditions of the Merger Agreement, to change its recommendation supporting the Offer or Merger, in response to a superior proposal or due to certain intervening events, thereby allowing the Board to satisfy its fiduciary duties.

 

   

Enforcement. The Board considered Buckeye’s ability to seek specific enforcement of Georgia-Pacific’s obligations under the Merger Agreement, thereby ensuring that Buckeye has an

 

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appropriate remedy in the event Georgia-Pacific were to decline to comply with its obligations under the Merger Agreement.

 

   

Structure of the Transaction. The Board considered that the structure of the transaction provided (i) an initial tender offer, which, assuming satisfaction of the conditions, can be completed promptly, reducing the period of uncertainty for stockholders, employees and customers, (ii) that subject to limited exceptions Georgia-Pacific is required to extend the Offer if the conditions to the Offer were not satisfied as of the applicable expiration date thereby increasing the likelihood of closing of the Offer and the Merger, and (iii) in certain circumstances, permits the use of a one step transaction, thereby providing additional flexibility and certainty in the event of delays in the receipt of certain regulatory approvals.

 

   

Business Reputation and Financial Strength of Georgia-Pacific. The Board considered the strong business reputation and substantial financial resources of Georgia-Pacific and focused on the absence of any financing contingency with respect to either the Offer or the Merger.

 

   

Opinion of Barclays. The Board considered the opinion of Barclays rendered on April 23, 2013 to the Board to the effect that, as of such date and based upon and subject to the qualifications, limitations and assumptions stated in its opinion, the consideration of $37.50 per share in cash to be offered to the stockholders of Buckeye in the Offer and the Merger was fair, from a financial point of view, to such stockholders. The full text of Barclays’ opinion is attached hereto as Annex B. For further discussion of Barclays’ opinion, see “—Opinion of Buckeye’s Financial Advisor” below.

 

   

Appraisal Rights. The Board considered the availability of statutory appraisal rights under Delaware law in the Merger for holders of Shares who do not tender their shares in the Offer, do not vote such shares in favor of the Merger and who otherwise comply with all the required procedures under Delaware law.

The Board also considered potential risks and uncertainties associated with the Offer and the Merger in connection with its evaluation of the proposed transaction, including:

 

   

No Stockholder Participation in Buckeye’s Future. If the Offer and the Merger are consummated, holders of Shares will receive the Offer Price in cash and will no longer have the opportunity to participate in the increase, if any, in the value of Buckeye.

 

   

Deal Protection Measures. The Board considered the possibility that the ability of Georgia-Pacific to match competing proposals (except in limited circumstances) and the termination fee payable by Buckeye to Georgia-Pacific in certain circumstances may deter third parties who might be interested in exploring an acquisition of Buckeye, and that Buckeye might be required to pay the termination fee under circumstances in which Buckeye does not engage in another transaction. The Board acknowledged that the provisions in the Merger Agreement related to Georgia-Pacific’s match right and termination fees were insisted upon by Georgia-Pacific as a condition to entering into the Merger Agreement, that Georgia-Pacific’s match right, the amount of the termination fee and the provisions of the Merger Agreement relating to the termination fee and non-solicitation of acquisition proposals were reasonable in light of, among other things, the benefits of the Offer and the Merger to Buckeye’s stockholders and would likely not deter competing bids.

 

   

Failure to Close. The Board considered the risk that Georgia-Pacific may terminate the Merger Agreement and not complete the Merger in certain limited circumstances, including, subject to certain conditions, if there is a material adverse effect with respect to Buckeye or if Buckeye does not perform certain obligations under the Merger Agreement in all material respects. The Board also considered the potential impact of the public announcement of any termination of the Merger Agreement, including that:

 

   

the market price of the Shares would likely be adversely affected;

 

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Buckeye’s directors, officers and other employees would have expended considerable time and effort to attempt to consummate the Offer and the Merger;

 

   

Buckeye would have incurred significant transaction and opportunity costs attempting to consummate the Offer and the Merger, including, in certain circumstances, payment of the termination fee;

 

   

Buckeye’s business may be subject to significant disruption;

 

   

Buckeye’s ability to attract and retain key personnel may be more difficult; and

 

   

Buckeye’s relationships with customers, suppliers and other business partners may be weakened.

 

   

Interim Restrictions on Business Pending the Completion of the Offer. The Board considered the restrictions imposed by the Merger Agreement on the conduct of Buckeye’s business prior to completion of the Offer or the Merger.

 

   

Tax Treatment. The Board considered that the per Share Merger Consideration to be received by the holders of Shares in the Offer and the Merger would be taxable to such holders for U.S. federal income tax purposes.

 

   

Regulatory Approval. The Board considered the regulatory approvals that may be required to consummate the Offer and the Merger and the prospects and potential timeline for receiving such approvals.

 

   

Potential Conflicts of Interest. The Board considered that Buckeye’s executive officers and directors may have interests in the transaction that are different from, or in addition to, those of Buckeye’s other stockholders. See “The Merger—Interests of Certain Persons in the Merger” beginning on page 46.

The Board based its ultimate decision on its business judgment that the benefits of the Merger to stockholders of Buckeye outweigh the negative considerations.

The foregoing discussion is not intended to be exhaustive but rather includes the material reasons that the Board believed in the aggregate supported its decisions. The Board reached the conclusion to approve the Merger Agreement, the Offer, the Merger and the transactions contemplated by the Merger Agreement in light of the various reasons described above and other factors that the individual members of the Board believed were appropriate. In view of the wide variety of factors considered by the Board in connection with its evaluation of the Merger Agreement and the complexity of those factors, the Board did not attempt to quantify, rank or otherwise assign relative weights to the specific factors it considered in reaching its decision and the Board made its recommendation based on the totality of information available to it. In considering the reasons above, the individual directors may have given different weight to different reasons.

Opinion of Buckeye’s Financial Advisor

Buckeye engaged Barclays to act as its financial advisor with respect to a possible sale of Buckeye or all or substantially all of its assets. On April 23, 2013, Barclays rendered its opinion to the Board to the effect that, as of such date and based upon and subject to the qualifications, limitations and assumptions stated in its opinion, the consideration to be offered to the stockholders of Buckeye in the Offer and the Merger is fair, from a financial point of view, to such stockholders.

The full text of Barclays’ written opinion, dated as of April 23, 2013, is attached hereto as Annex B. Barclays’ written opinion sets forth, among other things, the assumptions made, procedures followed, factors considered and limitations upon the review undertaken by Barclays in rendering its opinion. You are encouraged to read the opinion carefully in its entirety. The following is a summary of Barclays’ opinion and the methodology that Barclays used to render its opinion. This summary is qualified in its entirety by reference to the full text of the opinion.

 

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Barclays’ opinion, the issuance of which was approved by Barclays’ Fairness Opinion Committee, is addressed to the Board, addresses only the fairness, from a financial point of view, of the consideration to be offered to the stockholders of Buckeye and does not constitute a recommendation to any stockholder of Buckeye as to whether to accept the consideration to be offered to the stockholders of Buckeye in connection with, or how such stockholder should vote with respect to, the Offer and the Merger. The terms of the Offer and the Merger were determined through arm’s-length negotiations between Buckeye and Georgia-Pacific and were unanimously approved by the Board. Barclays did not recommend any specific form of consideration to Buckeye or that any specific form of consideration constituted the only appropriate consideration for the Offer and the Merger. Barclays was not requested to opine as to, and its opinion does not in any manner address, Buckeye’s underlying business decision to proceed with or effect the Offer and the Merger or the likelihood of consummation of the Offer and the Merger. In addition, Barclays expressed no opinion on, and its opinion does not in any manner address, the fairness of the amount or the nature of any compensation to any officers, directors or employees of any parties to the Offer and the Merger, or any class of such persons, relative to the consideration to be offered to the stockholders of Buckeye in the Offer and the Merger. Other than as described below, no limitations were imposed by the Board upon Barclays with respect to the investigations made or procedures followed by it in rendering its opinion.

In arriving at its opinion, Barclays, among other things:

 

   

reviewed and analyzed a draft of the Merger Agreement, dated as of April 23, 2013, and the specific terms of the Offer and the Merger;

 

   

reviewed and analyzed publicly available information concerning Buckeye that Barclays believed to be relevant to its analysis, including Buckeye’s Annual Report on Form 10-K for the fiscal year ended June 30, 2012 and Quarterly Reports on Form 10-Q for the fiscal quarters ended September 30, 2012 and December 31, 2012;

 

   

reviewed and analyzed financial and operating information with respect to the business, operations and prospects of Buckeye furnished to Barclays by Buckeye, including financial projections of Buckeye prepared by Buckeye’s management;

 

   

reviewed and analyzed a trading history of Shares from April 22, 2003 through April 22, 2013 and a comparison of the trading history of Shares from April 22, 2010 through April 22, 2013 with those of indices comprised of other companies that Barclays deemed relevant;

 

   

reviewed and analyzed a comparison of the historical financial results and present financial condition of Buckeye with those of other companies that Barclays deemed relevant;

 

   

reviewed and analyzed a comparison of the financial terms of the Offer and the Merger with the financial terms of certain other transactions that Barclays deemed relevant;

 

   

reviewed and analyzed published estimates of independent research analysts with respect to the future financial performance and price targets of Buckeye;

 

   

had discussions with the management of Buckeye concerning its business, operations, assets, liabilities, financial condition and prospects; and

 

   

undertook such other studies, analyses and investigations as Barclays deemed appropriate.

In arriving at its opinion, Barclays assumed and relied upon the accuracy and completeness of the financial and other information used by Barclays without any independent verification of such information (and Barclays did not assume responsibility or liability for any independent verification of such information). Barclays also relied upon the assurances of the management of Buckeye that they were not aware of any facts or circumstances that would make such information inaccurate or misleading. With respect to the financial projections of Buckeye, upon the advice of Buckeye, Barclays assumed that such projections were reasonably prepared on a basis reflecting the best currently available estimates and judgments of the management of Buckeye as to the future financial performance of Buckeye and that Buckeye would perform in accordance with such projections. In

 

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arriving at its opinion, Barclays assumed no responsibility for and expressed no view as to any such projections or estimates or the assumptions on which they were based. In arriving at its opinion, Barclays did not conduct a physical inspection of the properties and facilities of Buckeye and did not make or obtain any evaluations or appraisals of the assets or liabilities of Buckeye. In addition, Barclays was not authorized by Buckeye to solicit, and Barclays did not solicit, any indications of interest from any third party with respect to the purchase of all or a part of Buckeye’s business, other than one third party that Barclays solicited on behalf of Buckeye and other than with respect to Buckeye’s nonwovens materials business. Barclays’ opinion was necessarily based upon market, economic and other conditions as they existed on, and could be evaluated as of, April 23, 2013. Barclays assumed no responsibility for updating or revising its opinion based on events or circumstances that may have occurred after April 23, 2013.

In arriving at its opinion, Barclays assumed that the executed Merger Agreement would conform in all material respects to the last draft reviewed by Barclays. In addition, Barclays assumed the accuracy of the representations and warranties contained in the Merger Agreement and all agreements related thereto. Barclays also assumed, upon the advice of Buckeye, that all material governmental, regulatory, and third party approvals, consents and releases for the Offer and the Merger will be obtained within the constraints contemplated by the Merger Agreement and that the Offer and the Merger will be consummated in accordance with the terms of the Merger Agreement without waiver, modification or amendment of any material term, condition or agreement thereof. Barclays did not express any opinion as to any tax or other consequences that might result from the Offer and the Merger, nor did its opinion address any legal, tax, regulatory or accounting matters, as to which Barclays understood that Buckeye had obtained such advice as it deemed necessary from qualified professionals.

In connection with rendering its opinion, Barclays performed certain financial, comparative and other analyses as summarized below. In arriving at its opinion, Barclays did not ascribe a specific range of values to the Shares but rather made its determination as to fairness, from a financial point of view, to Buckeye’s stockholders of the consideration to be offered to such stockholders in the Offer and the Merger on the basis of various financial and comparative analyses. The preparation of a fairness opinion is a complex process and involves various determinations as to the most appropriate and relevant methods of financial and comparative analyses and the application of those methods to the particular circumstances. Therefore, a fairness opinion is not readily susceptible to summary description.

In arriving at its opinion, Barclays did not attribute any particular weight to any single analysis or factor considered by it but rather made qualitative judgments as to the significance and relevance of each analysis and factor relative to all other analyses and factors performed and considered by it and in the context of the circumstances of the particular transaction. Accordingly, Barclays believes that its analyses must be considered as a whole, as considering any portion of such analyses and factors, without considering all analyses and factors as a whole, could create a misleading or incomplete view of the process underlying its opinion.

The following is a summary of the material financial analyses used by Barclays in preparing its opinion to the Board. Certain financial analyses summarized below include information presented in tabular format. In order to fully understand the financial analyses used by Barclays, the tables must be read together with the text of each summary, as the tables alone do not constitute a complete description of the financial analyses. In performing its analyses, Barclays made numerous assumptions with respect to industry performance, general business and economic conditions and other matters, many of which are beyond the control of Buckeye or any other parties to the Offer and the Merger. None of Buckeye, Georgia-Pacific, Purchaser, Barclays or any other person assumes responsibility if future results are materially different from those discussed. Any estimates contained in these analyses are not necessarily indicative of actual values or predictive of future results or values, which may be significantly more or less favorable than as set forth below. In addition, analyses relating to the value of the businesses do not purport to be appraisals or reflect the prices at which the businesses may actually be sold.

 

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Analysis of Implied Premiums and Multiples

Barclays analyzed the implied premiums based on the consideration of $37.50 per Share as compared to the following:

 

   

the closing price of the Shares on April 22, 2013;

 

   

the average closing price of the Shares for the 30-calendar day period, 90-calendar day period and 1-year period ended on April 22, 2013;

 

   

the 52-week high closing price of the Shares ending on April 22, 2013; and

 

   

the all-time high closing price of the Shares, which occurred on January 20, 2012.

The results of this analysis are summarized in the following table:

 

Time Period

   Price      Implied Premium  

April 22, 2013

   $ 29.02         29.2

30-Day Average

   $ 29.46         27.3

90-Day Average

   $ 28.95         29.5

1-Year Average

   $ 29.27         28.1

52-Week High (September 14, 2012)

   $ 32.62         15.0

All-Time High (January 20, 2012)

   $ 37.40         0.3

Barclays also analyzed the implied multiple of Buckeye’s enterprise value (or short- and long-term debt plus market value of common equity, minus cash and cash equivalents) to revenue and earnings before interest, taxes, depreciation and amortization, or EBITDA, adjusted for non-recurring charges, or Adjusted EBITDA, based on the consideration of $37.50 per Share. For purposes of its analyses, Barclays used estimated revenue and Adjusted EBITDA for fiscal years ending June 30, 2013 and 2014 based on Buckeye management forecasts. Barclays also calculated the implied projected earnings per share multiples (commonly referred to as a price earnings ratio) based on consideration of $37.50 per Share, with the projected earnings per share multiples based on Buckeye management forecasts. The results of this analysis are summarized below:

 

Multiple Analysis

   Implied Multiple based on
Consideration of $37.50 Per  Share
 

Enterprise Value/Estimated 2013 Revenue

     1.86x   

Enterprise Value/Estimated 2014 Revenue

     1.75x   

Enterprise Value/Estimated 2013 Adjusted EBITDA

     7.9x   

Enterprise Value/Estimated 2014 Adjusted EBITDA

     6.6x   

Estimated 2013 Price/Earnings Ratio

     16.5x   

Estimated 2014 Price/Earnings Ratio

     13.1x   

Historical Share Price Analysis and Selected Comparable Company Analysis

To illustrate the trend in the historical trading prices of the Shares, Barclays considered historical data with regard to the trading prices of the Shares for the period from April 22, 2010 to April 22, 2013, and compared such data with the relative stock price performances during the same periods of composite indices comprised of the following dissolving pulp manufacturing companies (the “Dissolving Pulp Index”) and nonwoven materials manufacturing companies (the “Nonwoven Materials Index”):

Dissolving Pulp Index Companies

 

   

Borregaard ASA

 

   

Fortress Paper Ltd.

 

   

Sappi Ltd.

 

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Sateri Holdings Ltd.

 

   

Tembec Inc.

Nonwoven Materials Index Companies

 

   

P.H. Glatfelter Company

 

   

Duni AB

 

   

Fiberweb PLC

Barclays noted that from April 22, 2010 to April 22, 2013, the per Share closing price increased 93.7% while the Dissolving Pulp Index decreased 46.9%, and the Nonwoven Materials Index increased 37.6%. Barclays also noted that from April 22, 2012 to April 22, 2013, the per Share closing price decreased 11.7% while the Dissolving Pulp Index decreased 21.6%, and the Nonwoven Materials Index increased 27.2%.

In order to assess how the public market values shares of similar publicly traded companies, Barclays reviewed and compared specific financial and operating data relating to Buckeye with selected companies that Barclays, based on its experience in the dissolving pulp and nonwoven materials industries, deemed comparable to Buckeye. Barclays performed this selected comparable company analysis for Buckeye on a sum-of-parts basis using separate implied values for its specialty fibers and nonwoven materials segments. The selected comparable companies used in the analysis of the specialty fibers industry were Rayonier Inc. and the same companies listed above in the Dissolving Pulp Index (the “Specialty Fiber Companies”), and the selected comparable companies used in the analysis of the nonwoven materials industry were the same companies summarized above in the Nonwoven Materials Index (the “Nonwoven Material Companies”).

Barclays calculated and compared various financial multiples and ratios of Buckeye and the selected comparable companies. As part of its selected comparable company analysis, Barclays calculated and analyzed the ratio of each company’s enterprise value to projected EBITDA for fiscal years ending 2013 and 2014 (which were calendarized from fiscal years ending September 30, 2013 and 2014 or December 31, 2013 and 2014, as the case may be, to correspond with Buckeye’s fiscal years ending June 30, 2013 and 2014). The enterprise value of each company was obtained by adding its short and long-term debt to the sum of the market value of its common equity and the book value of any minority interest, and subtracting its cash and cash equivalents. All of these calculations were performed, and based on publicly available financial data (including FactSet and I/B/E/S Consensus) and closing prices, as of April 22, 2013, the last trading date prior to the delivery of Barclays’ opinion. The results of this selected comparable company analysis are summarized below:

 

Enterprise Value as a Multiple of Fiscal Year 2013 Estimated EBITDA

 
     Low      Median      Mean      High  

Specialty Fiber Companies*

     4.0x         5.2x         5.4x         7.1x   

Nonwoven Material Companies

     4.3x         6.5x         5.9x         6.9x   

 

* Rayonier Inc. excluded from multiples due to its significant timber assets and REIT structure.

 

Buckeye based on Buckeye management projections

     6.3x   

Buckeye based on FactSet and I/B/E/S Consensus estimates

     6.1x   

 

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Enterprise Value as a Multiple of Fiscal Year 2014 Estimated EBITDA

 
     Low      Median      Mean      High  

Specialty Fiber Companies*

     4.2x         4.5x         4.6x         5.2x   

Nonwoven Material Companies

     3.9x         5.8x         5.4x         6.6x   

 

* Rayonier Inc. excluded from multiples due to its significant timber assets and REIT structure.

 

Buckeye based on Buckeye management projections

     5.3x   

Buckeye based on FactSet and I/B/E/S Consensus estimates

     5.6x   

Barclays selected the comparable companies listed above because of similarities in one or more business or operating characteristics with Buckeye. However, because no selected comparable company is exactly the same as Buckeye, Barclays believed that it was inappropriate to, and therefore did not, rely solely on the quantitative results of the selected comparable company analysis. Accordingly, Barclays also made qualitative judgments concerning differences between the business, financial and operating characteristics and prospects of Buckeye and the selected comparable companies that could affect the public trading values of each in order to provide a context in which to consider the results of the quantitative analysis. These qualitative judgments related primarily to the differing sizes, growth prospects, profitability levels and degree of operational risk between Buckeye and the companies included in the selected company analysis.

Based upon these judgments, Barclays selected a range of 5.0x to 6.0x and 5.75x to 6.75x fiscal year ending June 30, 2013 estimated Adjusted EBITDA for Buckeye’s specialty fibers and nonwoven materials segments, respectively, and 4.25x to 4.75x and 5.25x to 6.25x fiscal year ending June 30, 2014 estimated Adjusted EBITDA for Buckeye’s specialty fibers and nonwoven materials segments, respectively. Barclays applied such ranges to Buckeye management projections to calculate a range of implied prices per Share. The selected comparable company analysis yielded an implied valuation range for Shares of $23.50 to $28.25 per share using 2013 estimated Adjusted EBITDA, and $24.00 to $27.25 per share using 2014 estimated Adjusted EBITDA (per share values were rounded to the nearest $0.25 increment), compared to the consideration of $37.50 per Share. Barclays also noted that these ranges of estimated values resulted in an implied blended multiple range of 5.1x to 6.1x fiscal year ending June 30, 2013 estimated Adjusted EBITDA and 4.4x to 5.0x fiscal year ending June 30, 2014 estimated Adjusted EBITDA.

Selected Precedent Transaction Analysis

Barclays reviewed and compared the purchase prices and financial multiples paid in selected other transactions that Barclays, based on its experience with merger and acquisition transactions and familiarity with the dissolving pulp and nonwoven materials industries, deemed relevant. Barclays chose such transactions based on, among other things, the similarity of the applicable target companies in the transactions to Buckeye with respect to the size, mix, margins and/or other characteristics of their businesses. Barclays performed this selected precedent transactions analysis for Buckeye on a sum-of-parts basis using separate implied values for its specialty fibers and nonwoven materials segments. The following tables set forth the transactions analyzed and the results of such analysis:

 

Ann. Date

  

Acquiror

  

Target

    

Specialty Fiber Company Transactions

April 2011    Aditya Birla Group    Domsjö Fabriker
February 2011    Fulida Group Holdings Ltd    Neucel Specialty Cellulose Ltd.
September 2010    The Gores Group, LLC    Cosmo Specialty Fibers, Inc.
    

Nonwoven Material Company Transactions

March 2013    P.H. Glatfelter Company    Dresden Papier GmbH
September 2012    Ethemba Capital Limited    Avgol Nonwoven Industries
December 2011    Petropar SA   

Fiberweb Holdings Limited –

Hygiene Subsidiaries

 

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Ann. Date

  

Acquiror

  

Target

October 2011

   Suominen Corporation   

Ahlstrom Corporation –

Nonwoven Segment

January 2011

   Blackstone Capital Partners V L.P.    Polymer Group, Inc.

February 2010

   P.H. Glatfelter Company    Concert Industries Corp.

April 2008

   First Quality Enterprises, Inc.   

Covidien Ltd. –

Retail Products Segment

Barclays calculated and compared various financial multiples and ratios of Buckeye and the target company in each of the selected precedent transactions listed above. As part of its selected precedent transactions analysis, Barclays calculated, among other things, with respect to the specialty fiber company transactions, the ratio of the purchase price to the target company’s metric tons of production capacity of dissolving pulp, or Price/Metric Ton, and, with respect to the nonwoven material company transactions, the ratio of the target company’s enterprise value to its last twelve months, or LTM, EBITDA, or EV/LTM EBITDA, as of the announcement date of such transaction. The results of this selected comparable company analysis are summarized below:

 

Metric

   Low      Median      Mean      High  

Specialty Fiber Transactions – Price/Metric Ton

   $ 1,143       $ 1,619       $ 1,516       $ 1,786   

Nonwoven Material Transactions – EV/LTM EBITDA

     3.8x         5.7x         5.9x         7.2x   

The reasons for and the circumstances surrounding each of the selected precedent transactions analyzed were diverse and there are inherent differences in the business, operations, financial conditions and prospects of Buckeye and the companies included in the selected precedent transaction analysis. Accordingly, Barclays believed that a purely quantitative selected precedent transaction analysis would not be particularly meaningful in the context of considering the Offer Price of $37.50 per Share in the Offer and the Merger. Barclays therefore made qualitative judgments concerning differences between the characteristics of the selected precedent transactions and the Offer and the Merger which would affect the acquisition values of the selected target companies and Buckeye.

Based upon these judgments, Barclays selected a range of $1,500 to $2,000 Price/ Metric Ton for Buckeye’s specialty fibers segment and 5.5x to 6.5x LTM Adjusted EBITDA for Buckeye’s nonwoven materials segment. Barclays applied such ranges to Buckeye’s metric tons of production capacity and LTM Adjusted EBITDA (as of December 31, 2012), respectively, to calculate a range of implied prices per Share. The selected precedent transaction analysis yielded an implied valuation range for the Shares of $25.00 to $32.75 per share (per share values were rounded to the nearest $0.25 increment), compared to the consideration of $37.50 per Share. Barclays also noted that this range of estimated values resulted in an implied blended multiple range of 4.9x to 6.4x LTM Adjusted EBITDA as of December 31, 2012.

Discounted Cash Flow Analysis

In order to estimate the present value of the Shares, Barclays performed a discounted cash flow analysis of Buckeye. A discounted cash flow analysis is a traditional valuation methodology used to derive a valuation of an asset by calculating the “present value” of estimated future cash flows of the asset. “Present value” refers to the current value of future cash flows or amounts and is obtained by discounting those future cash flows or amounts by a discount rate that takes into account macroeconomic assumptions and estimates of risk, the opportunity cost of capital, expected returns and other appropriate factors.

To calculate the estimated enterprise value of Buckeye using the discounted cash flow method, Barclays added (i) Buckeye’s projected after-tax unlevered free cash flows for fiscal years 2014 through 2018 (based on Buckeye management projections for fiscal years 2014 and 2015 and high level forecasts, extrapolations and assumptions for fiscal years 2016 through 2018 provided by Buckeye management and reviewed by Barclays with Buckeye management) to (ii) the “terminal value” of Buckeye as of June 30, 2018, and discounted such

 

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amount to its present value using a range of selected discount rates. The residual value of Buckeye at the end of the forecast period, or “terminal value,” was estimated by selecting a range of terminal value multiples based on Buckeye’s LTM Adjusted EBITDA of 5.25x to 6.25x, which was derived by analyzing the results from the selected comparable company analysis and applying such range to Buckeye’s LTM Adjusted EBITDA (as of June 30, 2018). The range of after-tax discount rates of 10% to 12% was selected based on an analysis of the weighted average cost of capital of Buckeye and the comparable companies.

Combining the total present value of the estimated unlevered free cash flows and the present value of the terminal values resulted in a range of implied enterprise values for Buckeye. Barclays then deducted projected outstanding debt and added projected outstanding cash and equivalents as of June 30, 2013 to determine a range of implied equity values of Buckeye as of that date, which Barclays discounted to present value as of March 31, 2013 using the same range of discount rates summarized above. The discounted cash flow analysis yielded an implied valuation range for the Shares of $33.25 to $40.50 per share (per share values were rounded to the nearest $0.25 increment), compared to the consideration of $37.50 per Share.

In rendering its opinion, Barclays also performed certain other analyses, as set forth below, which were solely for informational purposes and were not part of its fairness determination.

Leveraged Acquisition Analysis

Barclays performed a leveraged acquisition analysis in order to ascertain a price for the Shares which might be achieved in a leveraged buyout transaction with a financial buyer using a debt capital structure based upon current market conditions. This analysis assumed: (i) a debt capital structure of Buckeye comprised of total leverage of funded debt to LTM Adjusted EBITDA as of June 30, 2013 of approximately 4.0x, (ii) an equity investment that would achieve a rate of return of approximately 20% to 30% over five years, and (iii) a projected Adjusted EBITDA multiple of 5.25x to 6.25x LTM Adjusted EBITDA as of June 30, 2018. Based upon these assumptions, Barclays calculated a range of implied enterprise values for Buckeye. Barclays then deducted projected outstanding debt and added projected outstanding cash and equivalents as of June 30, 2013 to determine a range of implied equity values of Buckeye as of that date. The leveraged acquisition analysis yielded an implied valuation range for the Shares of $27.50 to $34.75 (per share values were rounded to the nearest $0.25 increment), compared to the consideration of $37.50 per Share.

Transaction Premium Analysis

In order to assess the premium offered to the stockholders of Buckeye in the Offer and the Merger relative to the premiums offered to stockholders in other transactions, Barclays reviewed the premium paid in selected cash consideration transactions of companies valued between $500 million and $2 billion from January 1, 2008 to April 22, 2013. For each calendar year, Barclays calculated the median percentage premium per share paid by the acquirer by comparing the announced transaction value per share to the target company’s closing share price as of one trading day prior to announcement. The results of this transaction premium analysis are summarized below:

 

     Median Premiums Paid in Cash Consideration Transactions
Valued Between $500 million and $2 billion (2008-2013)
 
     2008     2009     2010     2011     2012*     2013*     Overall
Median
 

Median Premium

     35.9     33.6     29.3     27.6     28.6     30.2     29.5

Number of Transactions

     18        15        37        30        37        9        146   

 

* Includes completed and pending transactions as of April 22, 2013.

 

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The reasons for and the circumstances surrounding each of the transactions analyzed in the transaction premium analysis were diverse and there are inherent differences in the business, operations, financial conditions and prospects of Buckeye and the companies included in the transaction premium analysis. Accordingly, Barclays believed that a purely quantitative transaction premium analysis would not be particularly meaningful in the context of considering the Offer and the Merger. Barclays therefore made qualitative judgments concerning the differences between the characteristics of the selected transactions and the Offer and the Merger which would affect the acquisition values of the target companies and Buckeye. Based upon these judgments, Barclays selected a range of 20% to 35% to the closing price of the Shares on April 22, 2013 to calculate a range of implied prices per share of Buckeye. The transaction premium analysis yielded an implied valuation range for the Shares of $34.75 to $39.25 per share (per share values were rounded to the nearest $0.25 increment), compared to the consideration of $37.50 per Share.

Analyst Price Targets

Barclays reviewed the public market trading price targets for the Shares published by six securities research analysts as of April 22, 2013. These targets reflected each analyst’s estimate of the future public market trading price for the Shares. The public market trading price targets published by securities research analysts do not necessarily reflect current market trading prices for the shares and these estimates are subject to uncertainties, including future financial performance of Buckeye and future financial market conditions. The securities research analyst price targets for the Shares ranged from $29.00 to $40.00 and the average price target was $35.00, compared to the consideration of $37.50 per Share.

General

Barclays is an internationally recognized investment banking firm and, as part of its investment banking activities, is regularly engaged in the valuation of businesses and their securities in connection with mergers and acquisitions, investments for passive and control purposes, negotiated underwritings, competitive bids, secondary distributions of listed and unlisted securities, private placements and valuations for estate, corporate and other purposes. The Board selected Barclays because of its familiarity with Buckeye and its qualifications, reputation and experience in the valuation of businesses and securities in connection with mergers and acquisitions generally, as well as substantial experience in transactions comparable to the Offer and the Merger.

Barclays is acting as financial advisor to Buckeye in connection with the Offer and the Merger. As compensation for its services in connection with the Offer and the Merger, Buckeye paid Barclays a fee of $1.5 million upon the delivery of Barclays’ opinion. Additional compensation estimated as of the date of Barclays’ opinion letter to be approximately $12 million will be payable on the earlier to occur of the completion of the Offer and the completion of the Merger. In addition, Buckeye has agreed to reimburse Barclays for expenses incurred in connection with the Offer and the Merger and to indemnify Barclays for certain liabilities that may arise out of its engagement by Buckeye, including the rendering of Barclays’ opinion. Barclays is currently performing, and may in the future perform, various investment banking and financial services for Buckeye for which Barclays may receive customary fees. During the past two years, Barclays has not received any fees from Buckeye other than in connection with the Offer and the Merger. Barclays has advised Buckeye that Barclays has also performed various investment banking and financial services for Georgia-Pacific and certain of its affiliates in the past, for which Barclays has, during the period from January 1, 2011 through March 31, 2013, received aggregate fees of approximately $735,000 from Georgia-Pacific and its subsidiaries and approximately $5.2 million from other affiliates of Georgia-Pacific, and expects to perform such services for Georgia-Pacific and certain of its affiliates in the future, for which Barclays expects to receive customary fees. Specifically, in the past two years, (a) Barclays has executed various hedging, foreign exchange, derivative and other securities and cash management transactions for Georgia-Pacific and its affiliates and (b) an affiliate of Barclays participated in a $3.5 billion credit agreement with Georgia-Pacific pursuant to which, as of the date of Barclay’s opinion letter, Barclays served as a lender in Georgia-Pacific’s revolving credit facility.

 

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Barclays and its affiliates engage in a wide range of businesses from investment and commercial banking, lending, asset management and other financial and non-financial services. In the ordinary course of its business, Barclays and its affiliates may actively trade and effect transactions in the equity, debt and/or other securities (and any derivatives thereof) and financial instruments (including loans and other obligations) of Buckeye and Georgia-Pacific and their respective affiliates for its own account and for the accounts of its customers and, accordingly, may at any time hold long or short positions and investments in such securities and financial instruments.

Certain Projections

Buckeye does not as a matter of course make public forecasts or projections as to its future financial performance. However, before entering into the Merger Agreement, Buckeye provided to representatives of Georgia-Pacific and the Purchaser certain non-public forward-looking information concerning Buckeye’s anticipated operating performance for fiscal years ending June 30, 2013, 2014 and 2015 detailed in the following table. Buckeye also provided these projections to Barclays for its use in connection with the rendering of its opinion to the Board and performing its related financial analysis. The following projections for the fiscal years ending June 30, 2013, 2014 and 2015 are management’s projections for such years, as reviewed from time to time with the Board.

 

($ in millions)    Fiscal Year Ending June 30,  
     2013     2014     2015  

Sales

   $ 810.0      $ 858.4      $ 899.5   

Gross Profit

     190.2        223.1        242.2   

Operating Income

     124.5        171.0        189.1   
  

 

 

   

 

 

   

 

 

 

Plus Asset Impairment Loss

     3.6        —          —     

Plus Restructuring Costs

     9.7        —          —     

Adj. EBIT(1)

     137.8        171.0        189.1   
  

 

 

   

 

 

   

 

 

 

Plus Depreciation and Amortization

     49.8        54.2        56.3   

Plus Loss on Disposal of Fixed Assets

     2.2        1.2        1.2   

Adj. EBITDA(2)

   $ 189.8      $ 226.4      $ 246.6   
  

 

 

   

 

 

   

 

 

 

Net Income

   $ 90.3      $ 112.8      $ 124.8   
  

 

 

   

 

 

   

 

 

 

Plus Asset Impairment Loss

     3.6        —          —     

Plus Restructuring Charges

     9.3        —          —     

Less Gain on Assets Held for Sale

     (7.6     —          —     

Less Income from Fuel Tax Credits

     (5.4     —          —     

Adj. Net Income(3)

   $ 90.2      $ 112.8      $ 124.8   
  

 

 

   

 

 

   

 

 

 

Net Cash Provided by Operating Activities

   $ 151.5      $ 198.6      $ 190.8   
  

 

 

   

 

 

   

 

 

 

Less Purchases of Property, Plant and Equipment

     (118.6     (82.0     (75.2

Plus Proceeds from Sale of Assets Held for Sale

     20.2        —          —     

Free Cash Flow(4)

   $ 53.1      $ 116.6      $ 115.6   
  

 

 

   

 

 

   

 

 

 

 

(1) Earnings before interest and taxes (adjusted for non-recurring charges).
(2) Earnings before interest, taxes, depreciation and amortization (adjusted for non-recurring charges).
(3) Net income adjusted for fuel tax credits and other non-recurring charges.
(4) Net cash provided by operating activities less net cash used in investing activities (excluding purchases of short-term investments).

 

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The following projections for fiscal years ending June 30, 2016, 2017 and 2018 are based on high-level forecasts, extrapolations and assumptions provided by management and reviewed by Barclays with management. These projections were prepared solely for use in connection with Barclays’ discounted cash flow analysis of Buckeye.

 

($ in millions)    Fiscal Year Ending June 30,  
      2016       2017       2018   

Sales

   $ 927      $ 950      $ 968   

Gross Profit

     265        284        298   

Operating Income

     211        228        241   
  

 

 

   

 

 

   

 

 

 

Plus Asset Impairment Loss

     —          —          —     

Plus Restructuring Costs

     —          —          —     

Adj. EBIT(1)

     211        228        241   
  

 

 

   

 

 

   

 

 

 

Plus Depreciation and Amortization

     56        56        56   

Plus Loss on Disposal of Fixed Assets

     —          —          —     

Adj. EBITDA(2)

   $ 267      $ 284      $ 297   
  

 

 

   

 

 

   

 

 

 

Net Cash Provided by Operating Activities

   $ 190      $ 201      $ 210   
  

 

 

   

 

 

   

 

 

 

Less Purchases of Property, Plant and Equipment

     (62     (78     (81

Plus Proceeds from Sale of Assets Held for Sale

     —          —          —     

Unlevered Free Cash Flow(3)

   $ 128      $ 123      $ 129   
  

 

 

   

 

 

   

 

 

 

 

(1) Earnings before interest and taxes (adjusted for non-recurring charges).
(2) Earnings before interest, taxes, depreciation and amortization (adjusted for non-recurring charges).
(3) Adjusted EBIT less taxes on Adjusted EBIT plus depreciation and amortization less net capital expenditures less change in net working capital.

Buckeye did not prepare the projections with a view to public disclosure or compliance with the published guidelines of the SEC or the guidelines established by the American Institute of Certified Public Accountants regarding projections or forecasts. Furthermore, the projections do not purport to present operations in accordance with U.S. generally accepted accounting principles, or “GAAP,” and Buckeye’s independent auditors have not examined, compiled or otherwise applied procedures to the projections and accordingly assume no responsibility for them. Buckeye’s internal financial forecasts (upon which the projections provided to Georgia-Pacific, the Purchaser and Barclays were based in part) are, in general, prepared solely for internal use and capital budgeting and other management decisions and are subjective in many respects and thus susceptible to interpretations and periodic revisions based on actual experience and business developments. The projections may differ from publicized analyst estimates and forecasts and do not take into account any events of circumstances accuracy after the date then were prepared, including the announcement of the Merger.

The projections also reflect numerous assumptions made by the management of Buckeye, including assumptions with respect to industry performance, the market for Buckeye’s existing and new products and services, Buckeye’s ability to successfully negotiate acquisitions, general business, economic, market and financial conditions and other matters, all of which are difficult to predict, many of which are beyond Buckeye’s control. These projections do not give effect to the Merger, or any alterations that Buckeye’s management or the Board may make to Buckeye’s operations or strategy after the completion of the Merger. Accordingly, there can be no assurance that the assumptions made in preparing the projections will prove accurate or that any of the projections will be realized.

It is expected that there will be differences between actual and projected results, and actual results may be materially greater or less than those contained in the projections due to numerous risks and uncertainties, including, but not limited to risks and uncertainties described in reports filed by Buckeye with the SEC under the

 

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Exchange Act, including without limitation under the heading “Risk Factors” in Buckeye’s Annual Report on Form 10-K for the fiscal year ended June 30, 2012.

All projections are forward-looking statements. These and other forward-looking statements are expressly qualified in their entirety by the risks and uncertainties identified above and the cautionary statements contained in Buckeye’s Annual Report on Form 10-K for the fiscal year ended June 30, 2012 and Quarterly Report on Form 10-Q for the quarters ended September 30, 2012, December 31, 2012 and March 31, 2013. Any provisions of the Private Securities Litigation Reform Act of 1995 that may be referenced in Buckeye’s Annual Report on Form 10-K for the fiscal year ended June 30, 2012 and Quarterly Report on Form 10-Q for the quarters ended September 30, 2012, December 31, 2012 and March 31, 2013 are not applicable to any forward looking statements made in connection with the Merger.

The inclusion of the projections in this proxy statement should not be regarded as an indication that any of Georgia-Pacific, the Purchaser, Buckeye, Barclays or their respective affiliates or representatives considered or consider the projections to be a reliable prediction of future events, and the projections should not be relied upon as such. None of Georgia-Pacific, the Purchaser, Buckeye, Barclays or any of their respective affiliates or representatives has made or makes any representation to any person regarding the ultimate performance of Buckeye compared to the information contained in the projections, and none of them undertakes any obligation to update or otherwise revise or reconcile the projections to reflect circumstances existing after the date such projections were generated or to reflect the occurrence of future events even in the event that any or all of the assumptions underlying the projections are shown to be in error.

Stockholders are cautioned not to place undue reliance on the projections included in this proxy statement.

Financing of the Merger

Georgia-Pacific and Purchaser estimate that the total funds required to complete the Merger will be approximately $1.5 billion plus any related transaction fees and expenses. Purchaser has arranged for sufficient funds, including the receipt of funds from Georgia-Pacific, to provide funding for the Merger. Georgia-Pacific intends to fund the purchase price out of a combination of cash and cash equivalents on hand and net proceeds from the sale of commercial paper issued under Georgia-Pacific’s commercial paper program.

Closing and Effective Time of Merger

If the Merger is approved at the Special Meeting then, assuming timely satisfaction of the other necessary closing conditions, we anticipate that the Merger will be completed promptly thereafter. The Effective Time will occur as soon as practicable following the closing of the Merger upon the filing of a certificate of merger with the Secretary of State of the State of Delaware (or at such later date as we and Georgia-Pacific may agree and specify in the certificate of merger).

Payment of Merger Consideration and Surrender of Stock Certificates

At the Effective Time, each Share issued and outstanding immediately prior to the Effective Time (other than shares owned by Buckeye or by Georgia-Pacific, Purchaser, or any of their respective subsidiaries and other than shares owned by stockholders that are entitled to and properly exercise appraisal rights under Delaware law) will be converted into and become the right to receive the per Share Merger Consideration.

Prior to the Effective Time, Purchaser shall deposit, or cause to be deposited with the paying agent, an amount in cash sufficient to pay the aggregate Merger Consideration pursuant to the Merger Agreement. As soon as reasonably practicable after the Effective Time and in any event not later than the third Business Day thereafter, Purchaser shall instruct the paying agent to mail to each registered holder of a certificate (“Certificate”) or book-entry shares (“Book-Entry Shares”) which, immediately prior to the Effective Time, represented Shares (i) a letter of transmittal (which shall specify that delivery shall be effected, and risk of loss

 

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and title to the Certificates shall pass, only upon delivery of the Certificates to the paying agent, and which shall be in such form and have such other customary provisions (including customary provisions with respect to delivery of an “agent’s message” with respect to Book-Entry Shares) as Buckeye and Purchaser may reasonably agree prior to the Effective Time) and (ii) instructions for effecting the surrender of such Certificates or Book-Entry Shares in exchange for payment of the Merger Consideration.

You should not return your stock certificates with the enclosed proxy card, and you should not forward your stock certificates to the paying agent without a letter of transmittal.

You will not be entitled to receive the per Share Merger Consideration until you deliver a duly completed and executed letter of transmittal to the paying agent. If your Shares are certificated, you must also surrender your stock certificate or certificates to the paying agent. If ownership of your Shares is not registered in the transfer records of American Stock Transfer & Trust Company, LLC or Buckeye, a check for any cash to be delivered will only be issued if the applicable letter of transmittal is accompanied by all documents reasonably required by Buckeye to evidence and effect such transfer and to evidence that any applicable stock transfer taxes have been paid or are not applicable.

Interests of Certain Persons in the Merger

Overview

Certain executive officers and directors of Buckeye may be deemed to have interests in the Transaction that may be different from, or in addition to, those of Buckeye’s stockholders generally. In considering the recommendations of the Board, including that you vote to adopt the Merger Agreement, you should be aware of these interests. In reaching its decision to make such recommendations and to approve the Merger Agreement and the Transaction, the Board was aware of these interests and considered them, along with other matters described in “—Recommendation of the Board; Reasons for Recommendation.” As described in more detail below, these interests include:

 

   

the cancelation of vested and unvested Company Options outstanding immediately prior to the Effective Time and the conversion of such Company Options into the right to receive a cash payment pursuant to the terms of the Merger Agreement;

 

   

the accelerated vesting of the Restricted Shares and the cancelation of such Restricted Shares in exchange for a cash payment equal to the Merger Consideration for each Restricted Share;

 

   

the receipt of certain payments and benefits under change in control agreements upon certain types of terminations of employment following the Effective Time;

 

   

the receipt of certain payments under cash bonus letter agreements in substitution for typical equity grants that Buckeye otherwise would have made in July 2013 described in more detail in “—Cash Bonus Letter Agreements” below; and

 

   

the entitlement to the indemnification and exculpation benefits in favor of directors and officers of Buckeye described in more detail in “—Indemnification of Directors and Officers” below.

 

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Cash Consideration Payable for Shares in the Merger

The directors and executive officers of Buckeye will receive the same cash consideration on the same terms and conditions as the other stockholders of Buckeye. The table below sets forth the beneficial ownership of Buckeye’s directors and executive officers as of July 8, 2013, and the amount each would receive, subject to any withholding required by applicable tax laws, upon consummation of the Merger.

 

Executive Officer/Director

   Number of
Shares of
Owned
     Value of Shares  

Shannon A. Brown

     0       $ 0.00   

George W. Bryan

     29,229       $ 1,096,087.50   

R. Howard Cannon

     273,859       $ 10,269,712.50   

Red Cavaney

     43,399       $ 1,627,462.50   

David B. Ferraro

     153,407       $ 5,752,762.50   

Katherine Buckman Gibson

     17,510       $ 656,625.00   

Lewis E. Holland

     41,729       $ 1,564,837.50   

Virginia B. Wetherell

     13,279       $ 497,962.50   

John B. Crowe

     205,669       $ 7,712,587.50   

Steven G. Dean

     36,191       $ 1,357,162.50   

Douglas L. Dowdell

     28,774       $ 1,079,025.00   

Charles S. Aiken

     37,484       $ 1,405,650.00   

Sheila Jordan Cunningham

     34,452       $ 1,291,950.00   

Paul N. Horne

     15,316       $ 574,350.00   

Marko M. Rajamaa

     26,635       $ 998,812.50   

Terrence M. Reed

     6,792       $ 254,700.00   

Pursuant to the Merger Agreement, immediately prior to the Effective Time, each Company Option, under any stock option or other equity or equity-based plan of Buckeye, including the Amended and Restated 1995 Management Stock Option Plan, the Second Amended and Restated 1995 Incentive and Nonqualified Stock Option Plan for Management Employees, the Restricted Stock Plan, the Omnibus Plan and the Amended and Restated Formula Plan for Non-Employee Directors or any other plan, agreement or arrangement (the “Company Equity Plans”), whether or not then exercisable or vested, will be cancelled and, in exchange therefor, each former holder of any such cancelled Company Option will be entitled to receive, in consideration of the cancellation of such Company Option and in settlement therefor, a payment in cash (subject to any applicable withholding or other taxes required by applicable law) of an amount equal to the product of (i) the total number of Shares subject to such Company Option immediately prior to such cancellation and (ii) the excess, if any, of the per Share Merger Consideration over the exercise price per Share subject to such Company Option immediately prior to such cancellation (such amounts payable, the “Option Payments”).

 

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The Surviving Corporation will, prior to the next applicable payroll payment date following the closing of the Merger (but no later than fifteen (15) days following the closing of the Merger), make the applicable Option Payments by a payroll payment through Buckeye’s or Purchaser’s payroll provider and subject to withholding, if any, to each holder of Company Options. The table below sets forth the Company Options of Buckeye’s directors and executive officers as of July 8, 2013, and the amount of the Option Payments each will receive, subject to any withholding required by applicable tax laws.

 

Executive Officer/Director

   Number of
Company
Options
     Total Value of
Company
Options
 

Shannon A. Brown

     0       $ 0.00   

George W. Bryan

     10,000       $ 269,400.00   

R. Howard Cannon

     10,000       $ 299,300.00   

Red Cavaney

     20,000       $ 568,700.00   

David B. Ferraro

     0       $ 0.00   

Kathy Buckman Gibson

     10,000       $ 269,400.00   

Lewis E. Holland

     0       $ 0.00   

Virginia B. Wetherell

     0       $ 0.00   

John B. Crowe

     114,303       $ 2,397,150.89   

Steven G. Dean

     53,279       $ 1,400,913.07   

Douglas L. Dowdell

     10,995       $ 147,404.65   

Charles S. Aiken

     17,769       $ 391,750.09   

Sheila Jordan Cunningham

     65,735       $ 1,751,732.18   

Paul N. Horne

     10,489       $ 154,928.59   

Marko M. Rajamaa

     26,374       $ 680,848.99   

Terrence M. Reed

     6,818       $ 119,059.98   

Pursuant to the Merger Agreement, immediately prior to the Effective Time, each Restricted Share will vest in full and all restrictions (including forfeiture restrictions or repurchase rights) otherwise applicable to such Restricted Share will lapse immediately prior to the Effective Time and such Restricted Share will be converted into the right to receive the per Share Merger Consideration, without interest, subject to any withholding of taxes required by applicable law. The table below sets forth the Restricted Shares held by Buckeye’s directors and executive officers as of July 8, 2013, and the amount each will be entitled to receive pursuant to the Merger Agreement for such Restricted Shares.

 

Executive Officer/Director

   Number of
Restricted
Shares
     Merger
Consideration
for Restricted
Shares
 

Shannon A. Brown

     3,290       $ 123,375.00   

George W. Bryan

     3,589       $ 134,587.50   

R. Howard Cannon

     3,589       $ 134,587.50   

Red Cavaney

     3,589       $ 134,587.50   

David B. Ferraro

     3,589       $ 134,587.50   

Katherine Buckman Gibson

     3,589       $ 134,587.50   

Lewis E. Holland

     3,589       $ 134,587.50   

Virginia B. Wetherell

     3,589       $ 134,587.50   

John B. Crowe

     199,815       $ 7,493,062.50   

Steven G. Dean

     32,674       $ 1,225,275.00   

Douglas L. Dowdell

     38,818       $ 1,455,675.00   

 

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Executive Officer/Director

   Number of
Restricted
Shares
     Merger
Consideration
for Restricted
Shares
 

Charles S. Aiken

     44,384       $ 1,664,400.00   

Sheila Jordan Cunningham

     35,996       $ 1,349,850.00   

Paul N. Horne

     49,206       $ 1,845,225.00   

Marko M. Rajamaa

     26,435       $ 991,312.50   

Terrence M. Reed

     15,726       $ 589,725.00   

Merger-Related Compensation Payments

Change in Control Agreements

On August 2, 2011, the Board authorized the compensation committee to enter into amended and restated change in control agreements (the “Change in Control Agreements”) with the chief executive officer, chief operating officer or any senior vice president of the company. These are “double trigger” agreements pursuant to which such executive officer or senior vice president will be paid a lump sum payment if there is (1) a change in control of Buckeye and (2) a termination of the executive officer’s employment, either by Buckeye without “cause” or by the executive with “good reason” within two years following the change in control (as such terms are defined in the Change in Control Agreements, as summarized below). If both a change of control and such a termination occur, then, pursuant to the Change in Control Agreement, the executive is entitled to receive the following benefits:

 

   

a lump sum severance payment;

 

   

continued medical coverage; and

 

   

accelerated vesting of outstanding restricted stock and option awards (our restricted stock plan and option plans also include a provision that accelerates vesting upon a change in control).

Described below are the circumstances that would trigger our obligation to make payments subsequent to a change in control, the payments and benefits that would be paid and how the determination of those payments and benefits is made.

Payments and Benefits

For our Chief Executive Officer, the severance payment is equal to three times the sum of the executive’s highest base salary in the three years preceding termination and the target bonus for the year of termination, and medical coverage will be continued for three years following the executive’s termination. For Executive Vice Presidents and Senior Vice Presidents, the severance payment is equal to two times the sum of the executive’s highest base salary in the three years preceding termination and the target bonus for the year of termination, and medical coverage will be continued for two years following the executive’s termination.

Change in Control

Generally the Change in Control Agreements define “Change in Control” as:

 

   

an acquisition of 25% or more of our voting securities;

 

   

a merger or similar transaction resulting in current stockholders owning 75% or less of the common stock and voting securities of the corporation or entity resulting from such transaction, which would include the Merger;

 

   

a substantial asset sale or our liquidation or dissolution; or

 

   

a change in a majority of the members of our Board.

 

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Termination without “Cause” or Resignation for “Good Reason”

Each Change in Control Agreement defines “cause” as the executive officer’s:

 

   

willful and material failure to follow lawful instructions;

 

   

willful gross misconduct or negligence resulting in material injury to us; or

 

   

conviction of a felony or any crime involving fraud or dishonesty, including any offense that relates to Buckeye’s assets or business or the theft of our property.

Each Change in Control Agreement defines “good reason” as, without the executive’s consent:

 

   

a material reduction in duties, responsibilities, reporting obligations or authority or a material change in title or position;

 

   

a failure to pay compensation or benefits when due, or a reduction in compensation or benefits (other than generally applicable benefit reductions), or the discontinuance of existing incentive and deferred compensation plans;

 

   

a relocation of the place of principal employment by more than 50 miles;

 

   

Buckeye fails to obtain assumption of the change in control agreement by an acquirer; or

 

   

the procedures outlined in the change in control agreement for terminating the executive’s employment are not followed.

Non-Competition; Non-Solicitation; Confidentiality

Pursuant to the terms of the Change in Control Agreements, each executive officer may not, during the term of his or her employment with us or thereafter, divulge our confidential information except as required by law or to enforce any rights he or she may have against us.

If a change of control occurs and an executive officer is terminated or resigns, then for one year the executive may not:

 

   

solicit our customers or prospective customers;

 

   

solicit our employees;

 

   

establish a business that competes with us;

 

   

work for a business that competes with us;

 

   

invest in business that competes with us; or

 

   

interfere with our customer or supplier relationships.

 

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Cash Bonus Letter Agreements

Effective as of May 23, 2013, Buckeye entered into a Cash Bonus Letter Agreement (collectively, the “Cash Bonus Letter Agreements”) with each of its executive officers. Under the terms of the Merger Agreement, Buckeye is not permitted to make equity grants to employees. The Cash Bonus Letter Agreements are intended to provide each of Buckeye’s executive officers with a cash incentive in substitution for the typical equity grants that Buckeye otherwise would have made in July 2013.

Under the terms of the Cash Bonus Letter Agreements and subject to the conditions set forth therein, each of Buckeye’s executive officers will receive a cash bonus payable within 30 days following the Effective Time, provided that the Effective Time occurs on or before May 31, 2014, in the following amounts:

 

Executive Officer

   Cash Bonus
($)
 

John B. Crowe

Chairman and Chief Executive Officer

     695,250   

Steven G. Dean

Executive Vice President and Chief Financial Officer

     175,500   

Douglas L. Dowdell

Executive Vice President, Specialty Fibers

     168,750   

Charles S. Aiken

Senior Vice President, Energy and Sustainability

     100,500   

Sheila Jordan Cunningham

Senior Vice President and General Counsel

     108,000   

Paul N. Horne

Senior Vice President, Product and Market Development

     108,000   

Marko M. Rajamaa

Senior Vice President, Nonwovens

     96,000   

Terrence M. Reed

Senior Vice President, Human Resources

     82,500   

The Cash Bonus Letter Agreements provide that such bonus will be forfeited with respect to any executive officer should his or her employment with Buckeye terminate prior to the Effective Time for any reason other than for death, disability or without cause.

 

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The following table shows the estimated maximum potential amounts of all payments to the named executive officers and senior vice presidents pursuant to (i) the Change in Control Agreements and (ii) the Cash Bonus Letter Agreements, in each case assuming both the change of control and, where applicable, a termination of employment occurred on July 31, 2013. In order to avoid excise tax payments under Section 4999 of the Code, each of the named executive officers and senior vice presidents will waive up to the amount shown in the table below or such lesser amount as required to avoid excise taxes, unless the executive would receive a greater after-tax amount if such amounts were not waived and excise taxes were paid.

 

     Cash     Perquisites/
Benefits
($)
    Equity ($)     Other ($)     Total ($)  

John B. Crowe,

Chief Executive Officer

   Scheduled
Severance
($)
    Bonus
Severance
($)
    Retention
Bonus ($)
         

After a Change in Control

              

Change in Control Without Termination

     —         —       $ 695,250        —       $ 5,444,014 (1)      —       $ 6,139,264   

Termination by Buckeye without Cause

   $ 2,317,500 (2)    $ 2,085,750 (3)    $ 695,250      $ 48,774 (4)    $ 5,444,014 (1)    $ (1,243,241 )(5)    $ 9,348,047   

Termination by Buckeye with Cause

     —         —       $ 695,250 (6)      —       $ 5,444,014 (1)      —       $ 6,139,264   

Termination for Good Reason by Executive

   $ 2,317,500 (2)    $ 2,085,750 (3)    $ 695,250      $ 48,774 (4)    $ 5,444,014 (1)    $ (1,243,241 )(5)    $ 9,348,047   

Termination without Good Reason by Executive

     —         —       $ 695,250 (6)      —       $ 5,444,014 (1)      —       $ 6,139,264   
     Cash     Perquisites/
Benefits
($)
    Equity ($)     Other ($)     Total ($)  

Steven G. Dean,

Executive Vice President and

Chief Financial Officer

   Scheduled
Severance
($)
    Bonus
Severance
($)
    Retention
Bonus ($)
         

After a Change in Control

              

Change in Control Without Termination

     —         —       $ 175,500        —       $ 812,266 (1)      —       $ 987,766   

Termination by Buckeye without Cause

   $ 780,000 (2)    $ 526,500 (3)    $ 175,500      $ 45,482 (4)    $ 812,266 (1)    $ (327,076 )(5)    $ 2,012,672   

Termination by Buckeye with Cause

     —         —       $ 175,500 (6)      —       $ 812,266 (1)      —       $ 987,766   

Termination for Good Reason by Executive

   $ 780,000 (2)    $ 526,500 (3)    $ 175,500      $ 45,482 (4)    $ 812,266 (1)    $ (327,076 )(5)    $ 2,012,672   

Termination without Good Reason by Executive

     —         —       $ 175,500 (6)      —       $ 812,266 (1)      —       $ 987,766   

 

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     Cash                          

Douglas L. Dowdell

Executive Vice President,

Specialty Fibers

   Scheduled
Severance
($)
    Bonus
Severance
($)
    Retention
Bonus

($)
    Perquisites/
Benefits
($)
    Equity
($)
    Other
($)
    Total
($)
 

After a Change in Control

              

Change in Control Without Termination

     —         —       $ 168,750        —       $ 1,100,639 (1)      —       $ 1,269,389   

Termination by Buckeye without Cause

   $ 750,000 (2)    $ 506,250 (3)    $ 168,750      $ 45,482 (4)    $ 1,100,639 (1)    $ (329,776 )(5)    $ 2,241,345   

Termination by Buckeye with Cause

     —         —       $ 168,750 (6)      —       $ 1,100,639 (1)      —       $ 1,269,389   

Termination for Good Reason by Executive

   $ 750,000 (2)    $ 506,250 (3)    $ 168,750      $ 45,482 (4)    $ 1,100,639 (1)    $ (329,776 )(5)    $ 2,241,345   

Termination without Good Reason by Executive

     —         —       $ 168,750 (6)      —       $ 1,100,639 (1)      —       $ 1,269,389   
     Cash                          

Charles S. Aiken

Senior Vice President,

Energy and Sustainability

   Scheduled
Severance
($)
    Bonus
Severance
($)
    Retention
Bonus

($)
    Perquisites/
Benefits
($)
    Equity
($)
    Other
($)
    Total
($)
 

After a Change in Control

              

Change in Control Without Termination

     —         —       $ 100,500        —       $ 1,272,724 (1)      —       $ 1,373,224   

Termination by Buckeye without Cause

   $ 700,000 (2)    $ 367,500 (3)    $ 100,500      $ 45,482 (4)    $ 1,272,724 (1)    $ (233,622 )(5)    $ 2,252,584   

Termination by Buckeye with Cause

     —         —       $ 100,500 (6)      —       $ 1,272,724 (1)      —       $ 1,373,224   

Termination for Good Reason by Executive

   $ 700,000 (2)    $ 367,500 (3)    $ 100,500      $ 45,482 (4)    $ 1,272,724 (1)    $ (233,622 )(5)    $ 2,252,584   

Termination without Good Reason by Executive

           —       $ 100,500 (6)      —       $ 1,272,724 (1)      —       $ 1,373,224   
     Cash                          

Sheila Jordan Cunningham

Senior Vice President,

General Counsel and Secretary

   Scheduled
Severance
($)
    Bonus
Severance
($)
    Retention
Bonus

($)
    Perquisites/
Benefits
($)
    Equity
($)
    Other
($)
    Total
($)
 

After a Change in Control

              

Change in Control Without Termination

     —         —       $ 108,000        —       $ 986,412 (1)      —       $ 1,094,412   

Termination by Buckeye without Cause

   $ 720,000 (2)    $ 378,000 (3)    $ 108,000      $ 45,482 (4)    $ 986,412 (1)    $ (79,389 )(5)    $ 2,158,505   

Termination by Buckeye with Cause

     —         —       $ 108,000 (6)      —       $ 986,412 (1)      —       $ 1,094,412   

Termination for Good Reason by Executive

   $ 720,000 (2)    $ 378,000 (3)    $ 108,000      $ 45,482 (4)    $ 986,412 (1)    $ (79,389 )(5)    $ 2,158,505   

Termination without Good Reason by Executive

     —         —       $ 108,000 (6)      —       $ 986,412 (1)      —       $ 1,094,412   

 

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Table of Contents
     Cash     Perquisites/
Benefits
($)
    Equity
($)
    Other
($)
    Total
($)
 

Paul N. Horne

Senior Vice President,

Product and Market Development

   Scheduled
Severance
($)
    Bonus
Severance
($)
    Retention
Bonus

($)
         

After a Change in Control

              

Change in Control Without Termination

     —           —         $ 108,000        —         $ 1,423,418 (1)      —         $ 1,531,418   

Termination by Buckeye without Cause

   $ 750,000 (2)    $ 393,750 (3)    $ 108,000      $ 45,482 (4)    $ 1,423,418 (1)    $ (314,845 )(5)    $ 2,405,805   

Termination by Buckeye with Cause

     —           —         $ 108,000 (6)      —         $ 1,423,418 (1)      —         $ 1,531,418   

Termination for Good Reason by Executive

   $ 750,000 (2)    $ 393,750 (3)    $ 108,000      $ 45,482 (4)    $ 1,423,418 (1)    $ (314,845 )(5)    $ 2,405,805   

Termination without Good Reason by Executive

           —         $ 108,000 (6)      —         $ 1,423,418 (1)      —         $ 1,531,418   
     Cash     Perquisites/
Benefits
($)
    Equity
($)
    Other
($)
    Total
($)
 

Marko M. Rajamaa

Senior Vice President, Nonwovens

   Scheduled
Severance
($)
    Bonus
Severance
($)
    Retention
Bonus

($)
         

After a Change in Control

              

Change in Control Without Termination

     —         —       $ 96,000        —       $ 658,039 (1)      —       $ 754,039   

Termination by Buckeye without Cause

   $ 650,000 (2)    $ 341,250 (3)    $ 96,000      $ 45,482 (4)    $ 658,039 (1)      —       $ 1,790,771   

Termination by Buckeye with Cause

     —         —       $ 96,000 (6)      —       $ 658,039 (1)      —       $ 754,039   

Termination for Good Reason by Executive

   $ 650,000 (2)    $ 341,250 (3)    $ 96,000      $ 45,482 (4)    $ 658,039 (1)      —       $ 1,790,771   

Termination without Good Reason by Executive

     —         —       $ 96,000 (6)      —       $ 658,039 (1)      —       $ 754,039   
     Cash     Perquisites/
Benefits

($)
    Equity
($)
    Other
($)
    Total
($)
 

Terrence M. Reed

Senior Vice President,

Human Resources

   Scheduled
Severance
($)
    Bonus
Severance
($)
    Retention
Bonus

($)
         

After a Change in Control

              

Change in Control Without Termination

     —         —       $ 82,500        —       $ 454,410 (1)      —       $ 536,910   

Termination by Buckeye without Cause

   $ 550,000 (2)    $ 330,000 (3)    $ 82,500      $ 45,482 (4)    $ 454,410 (1)    $ (240,044 )(5)    $ 1,222,348   

Termination by Buckeye with Cause

     —         —       $ 82,500 (6)      —       $ 454,410 (1)      —       $ 536,910   

Termination for Good Reason by Executive

   $ 550,000 (2)    $ 330,000 (3)    $ 82,500      $ 45,482 (4)    $ 454,410 (1)    $ (240,044 )(5)    $ 1,222,348   

Termination without Good Reason by Executive

     —         —       $ 82,500 (6)      —       $ 454,410 (1)      —       $ 536,910   

 

(1) Represents the sum of (1) the Option Payments, and (2) the product of the number of unvested restricted shares that would become vested in connection with a change in control multiplied by $37.50.
(2) Represents the executive officer’s highest annual base salary received during the three years preceding July 1, 2013 multiplied by the applicable multiplier under the Change in Control Agreement (3 years in the case of Mr. Crowe and 2 years in the case of the other executive officers).
(3) Represents the executive officer’s target bonus for 2013 multiplied by the applicable multiplier under the Change in Control Agreement (3 years in the case of Mr. Crowe and 2 years in the case of the other executive officers).
(4) The value of medical benefits is estimated based on the annual premium each executive officer would be required to pay for continuing medical coverage under the provisions of our medical plan required by the Consolidated Omnibus Budget Reconciliation Act (COBRA) multiplied by the number of years such benefit would be provided under the applicable Change in Control Agreement (3 years in the case of Mr. Crowe and 2 years in the case of the other executive officers).
(5)

Messrs. Crowe, Dean, Dowdell, Aiken, Horne, Rajamaa, Reed and Ms. Cunningham’s benefits and payments are subject to a modified cutback to eliminate any excise tax payable under section 4999 of the Code if the net-after tax amount that the executive would receive with respect to such payments or benefits does not exceed the net-after tax amount the executive would receive if the amount of such payment and benefits were reduced to the maximum amount which could otherwise be payable without the imposition of the excise tax. In respect of a

 

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  termination occurring as of July 31, 2013 following a change in control, Messrs. Crowe, Dean, Dowdell, Aiken, Horne, Reed and Ms. Cunningham do not receive a greater after-tax benefit without such reduction; accordingly their cash severance benefit would be reduced by the amount set forth in the table above. If instead, no cut-back had applied, Messrs. Crowe, Dean, Dowdell, Aiken, Horne, Reed and Ms. Cunningham would have received total pre-tax payments of: Mr. Crowe, $10,591,288; Mr. Dean, $2,339,748; Mr. Dowdell, $2,571,121; Mr. Aiken, $2,486,206; Ms. Cunningham, $2,237,894; Mr. Horne, $2,720,650; and Mr. Reed, $1,462,392. Mr. Rajamaa’s benefits and payments do not need to be reduced pursuant to the modified cutback because such payments and benefits do not trigger the excise tax payable under section 4999 of the Code.
(6) If employment with Buckeye terminates prior to the Effective Time for Cause or without Good Reason, the retention bonus will not be paid. See “—Cash Bonus Letter Agreements” above.

Other Arrangements

Kristopher J. Matula was a former director, President and Chief Operating Officer of Buckeye and was a named executive officer in Buckeye’s most recent proxy statement with respect to the 2012 annual meeting of Buckeye’s stockholders. Mr. Matula resigned from the Board and from his officer positions with Buckeye on August 7, 2012 and ceased to be an employee of Buckeye on August 31, 2012. In connection therewith, Mr. Matula received the following: (i) a lump sum payment of $970,000, (ii) full and immediate vesting of all time-vested restricted stock awarded to him under Buckeye’s Amended and Restated 2007 Omnibus Incentive Compensation Plan (the “2007 Omnibus Plan”), (iii) full and immediate vesting of all options granted to him under the 2007 Omnibus Plan, (iv) an extension of the exercise period on each of Mr. Matula’s vested options, including those which become vested pursuant to his separation agreement, until the earlier of (x) August 31, 2014 or (y) the original expiration date of such option, and (v) retention of the performance share awards, which were made to him in July 2010 and July 2011, and, if and to the extent Buckeye achieves its performance targets over the remaining performance period or upon an earlier change in control of Buckeye in connection with the Merger or otherwise, Mr. Matula will vest and receive a pro-rated portion of such earned performance shares equal to the number of days in the relevant performance period during which he was an employee of Buckeye divided by 1096 (such distribution, if any, to be made at the same time as distributions are made to other grantees of performance shares).

The following table shows amounts due to Mr. Matula upon a change in control in connection with the Merger.

 

     Cash                             

Kristopher J. Matula,

President and Chief Operating Officer (6)

   Scheduled
Severance
($)
     Bonus
Severance
($)
     Perquisites/
Benefits
($)
     Equity
($)
    Other
($)
     Total
($)
 

After a Change in Control

                

Payment on Change in Control

     —          —          —        $ 87,675 (1)      —        $ 87,675   

 

(1) Represents the acceleration of 2,338 performance shares issued under our Amended and Restated 2007 Omnibus Incentive Compensation Plan upon a change in control based on the $37.50 per Share Merger Consideration.

Indemnification of Directors and Officers

As permitted under Section 145 of the DGCL, Buckeye has included in its second amended and restated certificate of incorporation (as amended, the “Charter”) a provision to eliminate the personal liability of its directors for monetary damages arising from a breach of fiduciary duty owed to Buckeye or its stockholders to the fullest extent permissible under the DGCL. In addition, the second amended and restated by-laws of Buckeye

 

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(the “By-laws”) provide that Buckeye is required to indemnify its directors and officers to the fullest extent not prohibited by the DGCL. Buckeye may also be required to advance fees and expenses to any person who was or is a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, arising from his or her services as a director or other officer of Buckeye.

Pursuant to authorization by the Board, Buckeye has entered into indemnification agreements (“Indemnification Agreements”) with each of its directors under which each director (and in certain situations, a director’s spouse) has a contractual right (i) to indemnification to the fullest extent permitted by applicable law for losses suffered or expenses incurred in connection with any threatened, pending or completed litigation or other proceeding relating to that person’s service as a director of Buckeye, (ii) subject to certain limitations and procedural requirements, to the advancement of expenses paid or incurred in connection with such litigation or other proceeding, (iii) to certain procedural and other protections effective upon a change in control of Buckeye, including the creation of a trust to secure Buckeye’s indemnification obligations, and (iv) to coverage under Buckeye’s directors’ and officers’ insurance policies, to the extent that Buckeye maintains such insurance policies and they are reasonably available, with comparable levels of coverage as the policies in effect as of the date of the Indemnification Agreements.

This summary of the Indemnification Agreements does not purport to be complete and is qualified in its entirety by reference to the Indemnification Agreements.

Pursuant to the Merger Agreement, for a period of six years from and after the Effective Time, Georgia-Pacific and the Surviving Corporation have agreed to indemnify and hold harmless the past and present directors and officers of Buckeye and Buckeye’s subsidiaries (collectively, the “Covered Persons”) as provided by the terms of the Charter, the By-laws and any indemnification agreements in existence on the date of the Merger Agreement, in each case, arising out of acts or omissions in their capacity as directors or officers of Buckeye or any subsidiary of Buckeye occurring at or prior to the Effective Time to the fullest extent permissible under the DGCL. In addition, the Merger Agreement provides that, for a period of six years from and after the Effective Time, the certificate of incorporation and bylaws of the Surviving Corporation will contain provisions no less favorable with respect to exculpation, indemnification and advancement of expenses of Covered Persons for periods at or prior to the Effective Time than are currently set forth in the Charter and By-laws, and that any indemnification agreements in existence on the date of the Merger Agreement with any directors or officers of Buckeye will continue in full force and effect in accordance with their terms following the Effective Time.

The Merger Agreement further provides that, for a period of six years from and after the Effective Time, the Surviving Corporation will maintain (and Georgia-Pacific or its assignee will cause it to maintain) for the benefit of Buckeye’s directors and officers, as of the date of the Merger Agreement and as of the Effective Time, an insurance and indemnification policy that provides coverage for events occurring prior to the Effective Time that is substantially equivalent to and, in any event, not less favorable in the aggregate and with coverage amounts not less favorable than Buckeye’s existing policy or, if substantially equivalent insurance coverage is unavailable, the best available coverage. The Surviving Corporation, however, will not be required to pay an annual premium for coverage in excess of 250% of the last annual premium paid prior to the date of the Merger Agreement.

All rights to indemnification and exculpation from liabilities for prior acts or omissions (including acts or omissions occurring in connection with the adoption and approval of the Merger Agreement and the transactions contemplated thereby) in favor of the past and present directors or officers of Buckeye or its subsidiaries as provided in Buckeye’s certificate of incorporation, bylaws or any indemnification agreements (as in effect on April 23, 2013) will be assumed by the Surviving Corporation in the Merger and will survive the Merger and continue in full force and effect in accordance with their terms.

For a period of six years after the completion of the Merger, Georgia-Pacific and the Surviving Corporation are required to indemnify and hold harmless all past and present directors or officers of Buckeye its subsidiaries, whom we refer to as “indemnified persons,” as provided by the terms of Buckeye’s existing certificate of

 

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incorporation, bylaws and indemnification agreements, arising out of such indemnified person’s acts or omissions in their capacity as a director or officer of Buckeye or its subsidiaries occurring at or prior to the completion of the Merger (including acts or omissions occurring in connection with the adoption and approval of the Merger Agreement and the completion of the transactions contemplated thereby), to the full extent permissible under the applicable provisions of the DGCL.

Georgia-Pacific and the Surviving Corporation are also required to advance expenses (including reasonable legal fees) incurred in the defense of any such claim, action, suit, proceeding or investigation in accordance with the procedures set forth in Buckeye’s existing certificate of incorporation, bylaws or indemnification agreements; provided, that any indemnified person to whom expenses are advanced must, prior to such advancement, undertake to repay such advanced expenses if a court ultimately determines in a final nonappealable judgment that such indemnified person is not entitled to indemnification.

For a period of six years after the completion of the Merger, the certificate of incorporation and bylaws of the Surviving Corporation must contain provisions no less favorable with respect to exculpation, indemnification and advancement of expenses of indemnified persons for periods at or prior to the completion of the Merger than are currently set forth in Buckeye’s certificate of incorporation and bylaws. Existing indemnification agreements will continue in full force and effect.

For six years after the completion of the Merger, subject to certain limitations, the Surviving Corporation is required to maintain (and Georgia-Pacific will cause it to maintain) for the benefit of Buckeye’s directors and officers an insurance and indemnification policy that provides coverage for events occurring prior to the completion of the Merger that is substantially equivalent to, and no less favorable in the aggregate and with coverage amounts not less favorable than, Buckeye’s existing policy. The Surviving Corporation may satisfy this obligation by obtaining prepaid insurance policies that provide coverage for an aggregate of at least six years.

Employee Matters

The Merger Agreement provides that, from the Effective Time until the second anniversary of the Effective Time, subject to the terms of any applicable collective bargaining agreement or employment agreement, Georgia-Pacific shall, or shall cause its subsidiaries to, provide to each person who is employed by Buckeye or any subsidiary of Buckeye immediately prior to the Effective Time who continues in the employment of Georgia-Pacific, the Surviving Corporation or any of their respective subsidiaries on or after the Effective Time (each, a “Continuing Employee”) compensation and benefits (including severance benefits) that are substantially equivalent in the aggregate to the compensation and benefits provided to similarly situated employees of Georgia-Pacific and its subsidiaries (other than Buckeye and its subsidiaries). Georgia-Pacific shall, or shall cause its subsidiaries to, provide to each Continuing Employee, to the extent not previously provided to such Continuing Employee by Buckeye or its subsidiaries (except to the extent that such bonus had not been properly accrued in Buckeye’s financial statements for periods prior to the date hereof (subject to adjustments in the ordinary course consistent with past practice)), (i) the amount of the bonus earned and accrued for the period ending June 30, 2013, in accordance with Buckeye’s “All Employee Bonus” and “At-Risk Compensation” programs, in effect for such Continuing Employee immediately prior to the Effective Time, such bonus shall be payable at the time it would otherwise be payable pursuant to such bonus plan, and (ii) the amount of the quarterly bonus earned and accrued for the applicable three-month period in which the Effective Time occurs, in accordance with Buckeye’s quarterly bonus program to be established in the ordinary course of business consistent with Buckeye’s current annual bonus program pursuant to its “All Employee Bonus” and “At-Risk Compensation” programs, except that the bonus amounts and performance targets shall be determined on a quarterly basis rather than an annual basis, in each case, unless such Continuing Employee’s employment is terminated prior to such time by the Surviving Corporation, Company Subsidiary or affiliate thereof, as applicable, without misconduct of the Continuing Employee or other similar cause, as determined by Georgia-Pacific or any of its subsidiaries in good faith in its reasonable discretion, in which case such bonus will be payable at the time of such termination and shall be prorated to the date of such termination.

 

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In addition, Georgia-Pacific shall, or shall cause its subsidiaries to, provide to each Continuing Employee base salary (or rate of pay) that is not less than such Continuing Employee’s base salary (or rate of pay) immediately prior to the Effective Time for nine (9) months following the Effective Time in the event such Continuing Employee’s duties, responsibilities and authorities are the same as such Continuing Employee possessed immediately prior to the Effective Time.

Potential for Future Arrangements

To the best knowledge of Buckeye, except for certain agreements described in this proxy statement between Buckeye and its executive officers and directors, no employment, equity contribution or other agreement, arrangement or understanding between any executive officer or director of Buckeye, on the one hand, and Georgia-Pacific, Purchaser or Buckeye, on the other hand, existed as of the date of this proxy statement, and the Merger is not conditioned upon any executive officer or director of Buckeye entering into any such agreement, arrangement or understanding.

It is possible that certain members of Buckeye’s current management team will enter into new employment arrangements with Buckeye after the completion of the Merger. Such arrangements may include the right to purchase or participate in the equity of Purchaser or its affiliates. Any such arrangements with the existing management team will not become effective until after the Merger is completed, if at all. There can be no assurance that any parties will reach an agreement on any terms, or at all.

Material United States Federal Income Tax Consequences of the Merger

The following discussion summarizes certain material U.S. federal income tax consequences expected to result to the holders of Shares other than Restricted Shares (referred to as “Unrestricted Shares”) whose Unrestricted Shares are converted to cash in the Merger. This discussion does not address the tax consequences of the Merger to holders of Restricted Shares. Holders of Restricted Shares are urged to consult their tax advisors with respect to the U.S. federal tax consequences of Merger, as well as any tax consequences arising under any state, local or foreign tax laws.

This discussion is not a complete analysis of all potential U.S. federal income tax consequences and does not address any tax consequences (i) arising under any state, local or foreign tax laws, (ii) with respect to the tax on net investment income imposed by Section 1411 of the Internal Revenue Code of 1986, as amended (the “Code”), or (iii) U.S. federal estate or gift tax laws. This discussion is based on the Code, Treasury Regulations promulgated thereunder, judicial decisions, and published rulings and administrative pronouncements of the Internal Revenue Service (the “IRS”), all as in effect as of the date of this proxy statement. These authorities may change, possibly retroactively, resulting in U.S. federal income tax consequences different from those discussed below. No ruling has been or will be sought from the IRS with respect to the matters discussed below, and there can be no assurance that the IRS will not take a contrary position regarding the tax consequences of the Merger or that any such contrary position would not be sustained by a court.

This discussion is limited to holders who hold Unrestricted Shares as capital assets within the meaning of Section 1221 of the Code (generally, property held for investment). This discussion does not address all U.S. federal income tax considerations that may be relevant to a holder in light of the holder’s particular circumstances. This discussion also does not consider any specific facts or circumstances that may be relevant to holders subject to special rules under the U.S. federal income tax laws, including, without limitation, expatriates and certain former citizens or long-term residents of the United States, partnerships and other pass-through entities, “controlled foreign corporations,” “passive foreign investment companies,” corporations that accumulate earnings to avoid U.S. federal income tax, U.S. holders (as defined below) whose functional currency is not the U.S. dollar, financial institutions, insurance companies, brokers, dealers or traders in securities, commodities or currencies, tax-exempt organizations, tax-qualified retirement plans, persons subject to the alternative minimum tax, and persons holding Unrestricted Shares as part of a hedge, straddle or other risk reduction strategy or as part of a hedging or conversion transaction or other integrated investment. This discussion also does not address the

 

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U.S. federal income tax consequence to holders of Restricted Shares, holders of Shares who acquired their Shares through stock option or stock purchase plan programs or in other compensatory arrangements, or those who exercise appraisal rights under the DGCL.

WE URGE YOU TO CONSULT YOUR TAX ADVISOR REGARDING THE U.S. FEDERAL TAX CONSEQUENCES OF THE MERGER IN RESPECT OF YOUR PARTICULAR CIRCUMSTANCES, AS WELL AS ANY TAX CONSEQUENCES ARISING UNDER ANY STATE, LOCAL OR FOREIGN TAX LAWS.

As used in this discussion, a U.S. holder is any beneficial owner of Unrestricted Shares who is treated for U.S. federal income tax purposes as:

 

   

an individual citizen or resident of the United States;

 

   

a corporation (or other entity taxed as a corporation for U.S. federal income tax purposes) 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 U.S. federal income tax regardless of its source; or

 

   

a trust (i) the administration over which a U.S. court can exercise primary supervision and all of the substantial decisions of which one or more U.S. persons have the authority to control or (ii) that was in existence on August 20, 1996, was treated as a U.S. person for U.S. federal income tax purposes prior to such date, and has validly elected to continue to be so treated.

A non-U.S. holder is any beneficial owner of Unrestricted Shares who is not a U.S. holder for U.S. federal income tax purposes.

If a partnership (or other entity taxed as a partnership for U.S. federal income tax purposes) holds Unrestricted Shares, the tax treatment of a partner in the partnership generally will depend on the status of the partner and upon the activities of the partnership. Accordingly, partnerships that hold Unrestricted Shares and partners in such partnerships are urged to consult their tax advisors regarding the specific U.S. federal income tax consequences to them of the Merger.

U.S. Holders

Effect of the Merger. The receipt of cash in exchange for Unrestricted Shares in the Merger will be a taxable transaction for U.S. federal income tax purposes. In general, a U.S. holder who receives cash in exchange for Unrestricted Shares in the Merger will recognize capital gain or loss for U.S. federal income tax purposes equal to the difference, if any, between the amount of cash received and the holder’s adjusted tax basis in the Unrestricted Shares surrendered. Any such gain or loss would be long-term capital gain or loss if the holding period for the Unrestricted Shares exceeded one year. Long-term capital gains of noncorporate taxpayers are generally taxable at a reduced rate. The deductibility of capital losses is subject to limitations. Gain or loss must be calculated separately for each block of Unrestricted Shares (i.e., Unrestricted Shares acquired at the same cost in a single transaction) exchanged for cash in the Merger.

Information Reporting and Backup Withholding. Payments made to U.S. holders in the Merger generally will be subject to information reporting and may be subject to backup withholding (currently at a rate of 28%). To avoid backup withholding, U.S. holders that do not otherwise establish an exemption must provide the paying agent with its correct taxpayer identification number (“TIN”), certify that such TIN is correct and that it is not currently subject to backup withholding by completing and returning the IRS Form W-9 to be included in the letter of transmittal and otherwise comply with applicable requirements of the backup withholding rules. A U.S. holder that does not provide its correct TIN may be subject to penalties imposed by the IRS. Certain holders (including corporations) generally are not subject to backup withholding and reporting requirements. Backup

 

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withholding is not an additional tax. U.S. holders may use amounts withheld as a credit against their U.S. federal income tax liability or may claim a refund of any excess amounts withheld by timely filing a claim for refund with the IRS.

Non-U.S. Holders

Effect of the Merger. A non-U.S. holder generally will not be subject to U.S. federal income tax on any gain realized on the receipt of cash for Unrestricted Shares in the Merger unless:

 

   

the holder is an individual who was present in the United States for 183 days or more during the taxable year of the disposition and certain other conditions are met;

 

   

the gain is effectively connected with the holder’s conduct of a trade or business in the United States, and, if required by an applicable tax treaty, attributable to a permanent establishment maintained by the holder in the United States; or

 

   

Buckeye is or has been a U.S. real property holding corporation (“USRPHC”) for U.S. federal income tax purposes at any time during the shorter of the five-year period ending on the date of disposition of the Unrestricted Shares or the period that the non-U.S. holder held Unrestricted Shares.

Gains described in the first bullet point above generally will be subject to U.S. federal income tax at a flat 30% rate, but may be offset by U.S. source capital losses. Unless a tax treaty provides otherwise, gain described in the second bullet point above will be subject to U.S. federal income tax on a net income basis in the same manner as if the non-U.S. holder were a resident of the United States. Non-U.S. holders that are foreign corporations also may be subject to a 30% branch profits tax (or applicable lower treaty rate). Non-U.S. holders are urged to consult any applicable tax treaties that may provide for different rules.

With respect to the third bullet point, in general, a corporation is a USRPHC if the fair market value of its “United States real property interests” (as defined in the Code and applicable Treasury Regulations) equals or exceeds 50% of the sum of the fair market value of its worldwide real property interests and its other assets used or held for use in a trade or business. There can be no assurance that Buckeye does not currently constitute or will not become a USRPHC. However, since the Shares are regularly traded on an established securities market (within the meaning of applicable Treasury Regulations), in the event Buckeye constitutes a USRPHC, the Shares will be treated as U.S. real property interests only with respect to a non-U.S. holder that owns (actually or constructively) more than five percent of the Shares. Non-U.S. holders owning (actually or constructively) more than five percent of the Shares should consult their own tax advisors regarding the U.S. federal income tax consequences of the Merger.

Information Reporting and Backup Withholding. Payments made to non-U.S. holders in the Merger may be subject to information reporting and backup withholding (currently at a rate of 28%). Non-U.S. holders can avoid backup withholding by providing the paying agent with the applicable and properly executed IRS Form W-8 certifying the holder’s non-U.S. status or by otherwise establishing an exemption. Backup withholding is not an additional tax. Non-U.S. holders may use amounts withheld as a credit against their U.S. federal income tax liability or may claim a refund of any excess amounts withheld by timely filing a claim for refund with the IRS.

Regulatory Approvals and Notices

Antitrust Laws

U.S. Antitrust. Pursuant to the Merger Agreement, on May 7, 2013, Georgia-Pacific and Buckeye each filed with the Federal Trade Commission (the “FTC”) and the Antitrust Division of the Department of Justice (the “Antitrust Division”) a Notification and Report Form for Certain Mergers and Acquisitions under the HSR Act (each, an “HSR Filing”) in connection with the purchase of the Shares in the Offer and the Merger. Under the provisions of the HSR Act applicable to the Offer and the Merger, the waiting period under the HSR Act applicable to the Offer and the Merger was originally scheduled to expire at 11:59 p.m., New York City time, on

 

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the 15th day following such filings, unless early termination of the waiting period was granted. By notice to the FTC and the Antitrust Division, Georgia-Pacific withdrew its HSR Filing effective as of May 22, 2013 and stated its intention to refile its HSR Filing on May 24, 2013. Georgia-Pacific subsequently refiled its HSR Filing on May 24, 2013, providing the FTC and Antitrust Division additional time to review the Offer and the Merger. As a result of the withdrawal and refiling by Georgia-Pacific, the waiting period applicable to the purchase of Shares in the Offer was scheduled to expire at 11:59 p.m., New York City time, on June 10, 2013. However, the FTC or the Antitrust Division could extend the waiting period by requesting additional information or documentary material from Georgia-Pacific. On June 10, 2013 Georgia-Pacific and Buckeye received requests for additional information and documentary materials (each a “Second Request”) seeking additional information regarding the nonwovens businesses. As a result of the Second Request to Georgia-Pacific, such waiting period was extended until 11:59 p.m., New York City time, on the date upon which the applicable waiting period expires after substantial compliance by Georgia-Pacific with its Second Request, unless such waiting period is earlier terminated. On June 26, 2013, Georgia-Pacific elected to terminate the previously announced Offer in accordance with the terms of the Merger Agreement and to convert to a “long form” merger in its pending acquisition of Buckeye. As a result of the conversion of the acquisition from a tender offer into a long form merger, the applicable waiting period has been extended until 11:59 p.m., New York City time, on the date upon which the applicable waiting period expires after substantial compliance by both parties with the Second Requests, unless such waiting period is earlier terminated. Such waiting period may be extended only with the consent of the parties. Georgia-Pacific, the Purchaser and Buckeye will continue to work with the FTC and the Antitrust Division during the course of their review to respond to any inquiries, including the Second Request, as expeditiously as possible. In practice, complying with requests for additional information or material, including the Second Request, can take a significant amount of time.

At any time before or after the Effective Time, the Antitrust Division or the FTC could take such action under the antitrust laws as either deems necessary or desirable in the public interest, including seeking to enjoin the Merger or the divestiture of substantial assets of Buckeye or its subsidiaries or Georgia-Pacific or its subsidiaries. State attorneys general may also bring legal action under both state and Federal antitrust laws, as applicable. Private parties may also bring legal action under the antitrust laws under certain circumstances. There can be no assurance that a challenge to the Merger on antitrust grounds will not be made or, if such a challenge is made, the result thereof.

Foreign Antitrust & Competition Law Clearances. Georgia-Pacific and Buckeye conduct business in many foreign countries. In connection with the Merger, the laws of certain of these foreign countries may require Georgia-Pacific and Buckeye, each of their subsidiaries and affiliates to make filings and provide information and documents to, and obtain the approval of, governmental authorities. Competition authorities in these and other jurisdictions may refuse to grant required approvals or clearances, bring legal action under applicable foreign antitrust laws seeking to enjoin the Merger or the divestiture of substantial assets of Georgia-Pacific and its subsidiaries and affiliates. There can be no assurance that Georgia-Pacific and Purchaser will obtain all required foreign antitrust approvals or clearances or that foreign competition authorities will not make a challenge to the Merger, or, if such a challenge is made, the result of that challenge.

Georgia-Pacific has made such filings with governmental authorities in Germany, Spain and Ukraine.

Germany. Under the provisions of the German Act against Restraints on Competition, the Merger may only be completed if the acquisition is approved by the German Federal Cartel Office (“FCO”), either by written approval or by expiration of a one-month waiting period commenced by the filing by Georgia-Pacific of a complete notification (the “German Notification”) with respect to the Merger, unless the FCO notifies Georgia-Pacific within the one-month waiting period of the initiation of an in-depth investigation. If the FCO initiates an in-depth investigation, the Merger may only be consummated if the acquisition is approved by the FCO, either by written approval or by expiration of a four-month waiting period commenced by the filing of the German Notification, unless the FCO notifies Georgia-Pacific within the four-month waiting period that the acquisition satisfies the conditions for a prohibition and may not be consummated. The written approval by the FCO or the expiration of any applicable waiting period is required under applicable law to complete the Merger and,

 

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therefore, is a condition to the Purchaser’s obligation to consummate the Merger. Georgia-Pacific filed the German Notification with the FCO on May 24, 2013. Georgia-Pacific received a grant of written approval from the FCO, declaring the Merger authorized, on June 21, 2013.

Spain. Under the provisions of Spanish Act 15/2007, of 3 July, on the Defence of Competition (Ley de Defensa de la Competencia), the Merger may only be completed if the acquisition is approved by the Spanish Competition Authority (Comisión Nacional de la Competencia, “SCA”), either by written approval or by expiration of a one-month waiting period starting from the filing by Georgia-Pacific (the “Spanish Notification”) with respect to the Merger, unless the SCA notifies Georgia-Pacific within the one-month waiting period of the initiation of an in-depth (“Phase II”) investigation. If the SCA initiates a Phase II investigation, the acquisition of Shares pursuant to the Merger may only be authorized on competition grounds if the acquisition is approved by the SCA, either by written approval or by expiration of a two-month waiting period, which starts when the Council (Consejo) of the SCA decides to initiate the Phase II investigation. The written approval by the SCA or the expiration of any applicable waiting period is required under applicable law to complete the Merger and, therefore, is a condition to the Purchaser’s obligation to consummate the Merger. Georgia-Pacific filed the Spanish Notification with the SCA on May 24, 2013. Georgia-Pacific received a grant of written approval from the SCA, declaring the Merger authorized, on June 19, 2013.

Ukraine. Under the provisions of the Protection of Economic Competition Act of 11 January 2001 (“Competition Act”), the Merger may only be completed if the acquisition is approved by the Anti-Monopoly Committee of Ukraine (“AMC”), either by written approval or by expiration of a forty-five day waiting period that begins upon submission of a complete application for approval of the Offer by Georgia-Pacific. If the AMC opens an investigation, there is an additional waiting period of three months from the date when the AMC receives all additionally requested information. If after this three-month waiting period there is no decision from the AMC, and the investigation is not suspended by the AMC, under certain limited circumstances as provided for by the Competition Act, the concentration is deemed to be approved. Written approval by the AMC or the expiration of any applicable waiting period without suspension of the investigation by the AMC or the issuance by the AMC of an objection to the acquisition of Shares pursuant to the Merger is required under applicable law to complete the Merger and, therefore, is a condition to the Purchaser’s obligation to consummate the Merger. Georgia-Pacific filed a complete application for approval of the Merger with the AMC on May 29, 2013, and, absent an earlier grant of written approval or initiation of an investigation by the AMC, the 45-day waiting period is scheduled to expire on July 12, 2013.

Litigation Relating to the Merger

On May 1, 2013, a putative shareholder class action complaint was filed in the Delaware Court. On May 7, 2013, a second putative shareholder class action complaint was filed in the Delaware Court. Pursuant to an order granted in the Delaware Court on May, 9, 2013, the Beckett Action and the Oliver Action were consolidated into a single action, all future actions filed in Delaware related to the same subject matter are to become part of the consolidated action and counsel to Mr. Beckett and Mr. Oliver were appointed as the lead counsel for the putative shareholder class. On May 13, 2013, the plaintiffs in the consolidated action filed the Consolidated Complaint. The plaintiffs also filed a motion for expedited proceedings and a motion for a preliminary injunction. The Consolidated Complaint generally alleged that the Individual Defendants breached their fiduciary duties and that Buckeye, Georgia-Pacific and the Purchaser aided and abetted these purported breaches of fiduciary duties.

On May 21, 2013, a telephonic hearing was held in the Consolidated Complaint on the plaintiffs’ motion to expedite proceedings and to set a hearing for preliminary injunction. The Delaware Court ruled that the plaintiffs had failed to set forth a colorable basis for expedited proceedings and denied the plaintiffs’ motion.

On June 19, 2013, the Consolidated Complaint was dismissed without prejudice pursuant to a Stipulation and Order of Dismissal (the “Order”) filed by the parties and entered by the Delaware Court. The Order stipulates that each party to the Consolidated Complaint will bear its own costs and that no compensation has passed or been promised from any of the defendants to the plaintiffs or plaintiffs’ counsel.

 

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THE MERGER AGREEMENT

This section describes the material terms of the Merger Agreement. The description in this section and elsewhere in this proxy statement is qualified in its entirety by reference to the complete text of the Merger Agreement, a copy of which is attached as Annex A and is incorporated by reference into this proxy statement. This summary does not purport to be complete and may not contain all of the information about the Merger Agreement that is important to you. We encourage you to read the Merger Agreement carefully and in its entirety. This section is not intended to provide you with any factual information about us. Such information can be found elsewhere in this proxy statement and in the public filings we make with the SEC, as described in the section entitled, “Where You Can Find More Information”, beginning on page 98.

Explanatory Note Regarding the Merger Agreement

The Merger Agreement has been provided solely to inform investors of its terms and is not intended to modify or supplement any factual disclosures about Buckeye in any public reports filed with the SEC by Buckeye. In particular, the assertions embodied in the representations, warranties and covenants contained in the Merger Agreement were made only for the purposes of the Merger Agreement, were solely for the benefit of the parties to the Merger Agreement and may be subject to limitations agreed upon by the contracting parties not set forth in the Merger Agreement. The representations and warranties set forth in the Merger Agreement may also be subject to a contractual standard of materiality different from that generally applicable to investors under federal securities laws.

The Offer

On May 7, 2013, Purchaser commenced the Offer. The Offer contemplated that, subject to the satisfaction of there being validly tendered in the Offer and not properly withdrawn before the expiration of the Offer, a number of Shares, that, together with the Shares owned of record by Georgia-Pacific, the Purchaser or any of Georgia-Pacific’s wholly-owned subsidiaries or with respect to which Georgia-Pacific, the Purchaser or any of Georgia-Pacific’s wholly-owned subsidiaries has sole voting power, if any, represents at least seventy-five percent (75%) of the Shares outstanding at the expiration of the Offer, determined on a fully-diluted basis (the “Minimum Condition”) and the satisfaction or waiver of the other conditions to the Offer, the Purchaser would accept for payment and pay for all Shares validly tendered and not properly withdrawn in the Offer as promptly as practicable (and in any event within three business days) after the Purchaser was legally permitted to do so. On June 5, 2013, in accordance with the terms of the Merger Agreement and applicable law, the Purchaser extended the expiration date of the Offer to 5:00 p.m., New York City time, on Monday, June 17, 2013. On June 18, 2013, in accordance with the terms of the Merger Agreement and applicable law, the Purchaser further extended the expiration date of the Offer to 5:00 p.m., New York City time, on Tuesday, June 25, 2013. The Offer was terminated in accordance with the Merger Agreement on June 25, 2013.

Since the Offer was terminated in accordance with the Merger Agreement and the Merger Agreement is not terminated, the Merger may only be consummated, subject to the terms and conditions of the Merger Agreement, after the stockholders of the Company have adopted the Merger Agreement at the Special Meeting. We have prepared this proxy statement in connection with the solicitation of proxies for the Special Meeting to obtain stockholder approval of the adoption of the Merger Agreement in order to be able to consummate the Merger.

Buckeye’s Board and Officers

Pursuant to the terms of the Merger Agreement, Georgia-Pacific, Purchaser and Buckeye have agreed to take all requisite action so that the managers of Purchaser immediately prior to the Effective Time or such other individual designated by Georgia-Pacific as of the Effective Time shall be the directors of the Surviving Corporation effective as of, and immediately following, the Effective Time.

 

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From and after the Effective Time, the officers of Buckeye immediately prior to the Effective Time will be the officers of the Surviving Corporation and shall hold office until their respective successors are duly elected or appointed (as the case may be) and qualified or until their earlier death, resignation, or removal.

The Merger

The Merger Agreement provides that, subject to the terms and conditions of the Merger Agreement, and in accordance with the DGCL, at the Effective Time:

 

   

the Purchaser will be merged with and into Buckeye;

 

   

Buckeye will continue as the Surviving Corporation; and

 

   

all property, rights, privileges, immunities, powers and franchises of Buckeye and the Purchaser will vest in the Surviving Corporation and continue unaffected by the Merger and all of their debts, liabilities and duties will become debts, liabilities and duties of the Surviving Corporation.

At the Effective Time, the certificate of incorporation and bylaws of the Surviving Corporation will be amended to be in the forms attached to the Merger Agreement.

Conditions to Completion of the Merger

The respective obligations of Georgia-Pacific and the Purchaser, on the one hand, and Buckeye, on the other hand, to complete the Merger are subject to the satisfaction of the following conditions:

 

   

the Merger Agreement has been adopted and the Merger approved by the requisite vote of the Buckeye’s stockholders;

 

   

there is no law, judgment, order or injunction of a governmental entity of competent jurisdiction in effect or entered with respect to the Merger (other than applicable waiting periods under the HSR Act or similar waiting periods associated with Other Required Governmental Approvals) that has the effect of enjoining, making illegal or otherwise prohibiting the completion of the Merger; and

 

   

any waiting period under the HSR Act applicable to the Merger has expired or terminated and any Other Required Governmental Approvals have been obtained and any waiting period or mandated filing will have lapsed or been made.

The obligations of Georgia-Pacific and the Purchaser to complete the Merger also are subject to the satisfaction or (to the extent permitted by applicable law) waiver of the following conditions:

 

   

there is no pending suit, action or proceeding by any governmental entity of competent jurisdiction, or any governmental entity of competent jurisdiction has stated its intention (which has not subsequently been rescinded) to Georgia-Pacific, the Purchaser or Buckeye to commence any suit, action or proceeding, against Georgia-Pacific, the Purchaser, Buckeye or any of Buckeye’s subsidiaries, or otherwise in connection with the Merger:

 

   

seeking to make illegal, restrain, prohibit or delay the making or completion of the Merger;

 

   

seeking to make illegal, restrain or prohibit the ownership or operation by Georgia-Pacific, Buckeye or any of their respective subsidiaries or affiliates, of all or any material portion of the businesses or assets of Georgia-Pacific or any of its affiliates (other than businesses or assets that are de minimis to Georgia-Pacific and its affiliates taken as a whole), on the one hand, or Buckeye and its subsidiaries, taken as a whole, on the other hand, as a result of or in connection with the Merger;

 

   

seeking to make illegal, restrain, prohibit or impose material limitations on the ability of Georgia-Pacific or the Purchaser effectively to acquire, hold or exercise full rights of ownership of Shares to be acquired by the Parent and the Purchaser pursuant to the Merger; or

 

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which otherwise would reasonably be expected to have, individually or in the aggregate, a Company Material Adverse Effect;

 

   

there is no law, judgment, order or injunction in effect, enacted, entered, enforced or promulgated by or on behalf of a governmental entity of competent jurisdiction with respect to the Merger, other than the application to the Merger of applicable waiting periods under the HSR Act or similar waiting periods with respect to the Other Required Governmental Approvals, that:

 

   

would reasonably be expected, individually or in the aggregate, to result, directly or indirectly, in any of the consequences referred to in any of the four sub-paragraphs of the immediately preceding bullet point;

 

   

the representations or warranties of Buckeye contained in Section 3.2(a) (relating to its capitalization), Section 3.2(b) (relating to equity securities subject to options and stock appreciation rights), Section 3.2(c)(D) (relating to the exercise price of Buckeye’s stock options), Section 3.2(c)(y) (relating to the base price of Buckeye’s stock appreciation rights), Section 3.2(e) (no undisclosed Buckeye equity interests), Section 3.2(f) (no restrictions on transfer of Buckeye’s equity interests or material assets), Section 3.3 (relating to authorization, validity and corporate action regarding the Merger Agreement) or Section 3.32 (relating to certain contracts that (i) purport to limit, or after the completion of the Merger would limit, Georgia-Pacific or its affiliates (other than Buckeye and its subsidiaries) from engaging in any line of business, competing with any person, or selling or distributing any product or service in any geographic area, or (ii) include pricing limitations, rebates, or discounts that would be applicable to Georgia-Pacific or its affiliates (other than Buckeye and its subsidiaries)) of the Merger Agreement must be true and correct in all material respects as of the closing date of the Merger with the same force and effect as if made on and as of the closing date of the Merger, except for representations and warranties that relate to a specific date or time, which need only be true and correct in all material respects as of such specific date or time;

 

   

for purposes of the immediately preceding bullet point, the representations and warranties of Buckeye contained in the first sentence of Section 3.2(a) (relating to its capitalization), the first and second sentences of Section 3.2(b) (relating to equity securities subject to options and stock appreciation rights), Section 3.2(c)(D) (relating to the exercise price of Buckeye’s stock options), Section 3.2(c)(y) (relating to the base price of Buckeye’s stock appreciation rights), or Section 3.2(e) (no undisclosed Buckeye equity interests) of the Merger Agreement, in each case, as of the close of business on April 22, 2013, will be deemed to fail to be true and correct in all material respects if the inaccuracies in the foregoing representations in the aggregate would cause the aggregate consideration required to be paid by Georgia-Pacific and the Purchaser to acquire or cancel Buckeye’s equity interests and stock appreciation rights in connection with the Merger to exceed by more than a de minimis amount the aggregate consideration that would have been required to be paid by Georgia-Pacific and the Purchaser to acquire or cancel Buckeye’s equity interests and stock appreciation rights in connection with the Merger if such representations and warranties had been true and correct in all respects as of such date;

 

   

the representations or warranties of Buckeye contained in Section 3.6(c) (relating to compliance with certain criminal laws) of the Merger Agreement must be true and correct in all respects as of the closing date of the Merger with the same force and effect as if made on and as of the closing date of the Merger, except where the violation, charge or investigation referenced in any such representation and warranty has not resulted in or would not reasonably be expected to result in, a “Criminal Penalty” which, as defined in the Merger Agreement, involves a criminal violation of anti-corruption laws or laws relating to export controls or competition and antitrust matters, a fine of more than $1,000,000, a felony-criminal jail sentence for matters over which the United States has jurisdiction or a criminal jail sentence involving incarceration of more than one year for matters where jurisdiction is wholly outside the United States;

 

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except as has not had and would not reasonably be expected to have, individually or in the aggregate with all other failures to be true or correct, a Company Material Adverse Effect, the representations and warranties of Buckeye contained in the Merger Agreement, other than representations and warranties referenced in the two immediately preceding bullet points (without giving effect to any references to any Company Material Adverse Effect or other materiality qualifications) must be true and correct in any respect as of the closing date of the Merger with the same force and effect as if made on and as of the closing date of the Merger, except for representations and warranties that relate to a specific date or time, which need only be true and correct as of such specific date or time;

 

   

Buckeye must have performed or complied in all material respects with its material obligations and covenants to be performed or complied with by it under the Merger Agreement;

 

   

Buckeye must have delivered an officer’s certificate to the effect that the conditions set forth in the four preceding first-level bullet points have been satisfied; and

 

   

since April 23, 2013, no fact(s), change(s), event(s), development(s) or circumstance(s) have occurred, arisen or come into existence or first become known to Georgia-Pacific or the Purchaser, or any worsening thereof (only to the extent of such worsening), and which has had or would reasonably be expected to have, individually or in the aggregate with all other such fact(s), change(s), event(s), development(s) or circumstance(s), a Company Material Adverse Effect; provided that information as and to the extent set forth (i) in any Buckeye SEC filing made after June 30, 2012 and publicly available prior to April 23, 2013 and only as and to the extent disclosed therein (other than disclosures in any exhibits or schedules thereto or in any documents incorporated by reference therein, and other than any forward looking disclosures set forth in any “risk factor” section and any disclosures in any section relating to “forward looking statements” to the extent they are primarily predictive or forward looking in nature) and (ii) in Buckeye’s disclosure schedule to the Merger Agreement, shall be deemed to have been known by Georgia-Pacific and the Purchaser as of April 23, 2013.

The obligations of Buckeye to complete the Merger are subject to the satisfaction or (to the extent permitted by applicable law) waiver of the following conditions:

 

   

the representations and warranties of Georgia-Pacific and the Purchaser must be true and correct in all material respects as of the closing date of the Merger, except (i) representations and warranties that related to specific date or time (which need only have been true as of such date or time), and (ii) as has not had and would not reasonably be expected to have, individually or in the aggregate with all other failures of such representations and warranties to be true or correct, any condition or effect that prevents or materially delays or would reasonably be expected to prevent or materially delay completion of the Merger or any of the material obligations of Georgia-Pacific or the Purchaser under the Merger Agreement;

 

   

Georgia-Pacific and the Purchaser must have performed or complied in all material respects with their material obligations and covenants under the Merger Agreement; and

 

   

Georgia-Pacific must have delivered an officer’s certificate to the effect that the conditions in the two preceding bullet points have been satisfied.

Conversion of Capital Stock

At the Effective Time, by virtue of the Merger and without any further action:

 

   

each Share issued and outstanding immediately prior to the Effective Time (other than Shares to be canceled in accordance with the following bullet point, and other than Shares held by stockholders that are entitled to and properly exercise appraisal rights under Delaware law) will be converted into the right to receive $37.50 per Share, subject to any withholding of taxes required by applicable law;

 

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all Shares owned by Buckeye or by Georgia-Pacific, the Purchaser or any of their respective subsidiaries will be canceled and will cease to exist, and no consideration will be delivered in exchange for those Shares; and

 

   

all outstanding equity interests of the Purchaser held immediately prior to the Effective Time will be converted into and become 100 newly issued, fully paid and non-assessable shares of common stock of the Surviving Corporation.

After the Effective Time, the Shares will no longer be outstanding and will cease to exist, and each holder of a certificate representing Shares will cease to have any rights with respect thereto, except the right to receive the per Share Merger Consideration, subject to any withholding of taxes required by applicable law, upon the surrender of such certificate. At or prior to the Effective Time, Georgia-Pacific or the Purchaser will deposit with the paying agent for the Merger the aggregate consideration to be paid to holders of Shares in the Merger.

Treatment of Options

Immediately prior to the Effective Time, each unexpired and unexercised option to purchase Shares under any stock option or other equity or equity-based plan of Buckeye, whether or not then exercisable or vested, will be canceled and, in exchange for such option, the former holder of such canceled option will be entitled to receive a cash payment (subject to applicable withholding or other taxes required by applicable law) in an amount equal to the product of (i) the total number of Shares subject to the option immediately prior to such cancellation and (ii) the excess, if any, of the per Share Merger Consideration over the exercise price per Share subject to such option immediately prior to such cancellation. After the Effective Time, each Buckeye stock option will no longer be exercisable and will only entitle the holder to the payment of the consideration described above.

Treatment of Stock Appreciation Rights

Immediately prior to the Effective Time, each unexpired and unexercised stock appreciation right based on the value of Shares, whether or not then exercisable or vested, will be canceled and, in exchange therefor, the former holder will be entitled to receive a payment in cash (subject to any applicable withholding or other taxes required by applicable law) of an amount equal to the product of (i) the total number of Shares subject to such stock appreciation right immediately prior to such cancellation and (ii) the excess, if any, of the per Share Merger Consideration over the base price per Share subject to such stock appreciation right immediately prior to such cancellation. After the Effective Time, each Buckeye stock appreciation right will no longer be exercisable, but will only entitle the holder to the payment of the consideration described above, if any.

Treatment of Restricted Shares

Immediately prior to the Effective Time, each outstanding Restricted Share will vest in full and all restrictions otherwise applicable to such Share will lapse and such Share will be converted into the right to receive the per Share Merger Consideration, subject to any withholding of taxes required by applicable law.

Termination of Buckeye Equity Plans

As of the Effective Time, all Buckeye equity plans will be terminated and no further Shares, options, Restricted Shares, stock appreciation rights, or other rights with respect to Shares will be granted thereunder.

Stockholders’ Meeting

Buckeye has agreed, acting through the Board, to:

 

 

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within five business days following the later of (i) the Purchaser’s request and (ii) the date on which the SEC confirms that it has no further comments on the proxy statement, to set a record date for (which will be as early as permissible under the DGCL and the NYSE Rules) and give notice of the Special Meeting for the purpose of considering and taking action upon the Merger Agreement, mail the proxy statement to Buckeye’s stockholders and convene and hold the Special Meeting, which will occur no later than 35 days after the proxy statement is mailed;

 

   

use its commercially reasonable best efforts to solicit proxies from its stockholders in favor of the adoption of the Merger Agreement; and

 

   

if requested by the Purchaser (or if not requested by the Purchaser, Buckeye may), adjourn or postpone the Special Meeting for a period or periods not to exceed 45 days in the aggregate.

Representations and Warranties

The Merger Agreement contains representations and warranties made by Buckeye to Georgia-Pacific and the Purchaser and representations and warranties made by Georgia-Pacific and the Purchaser to Buckeye. The assertions embodied in the representations and warranties contained in the Merger Agreement were made only for the purposes of the Merger Agreement, were solely for the benefit of the parties to the Merger Agreement and may be subject to limitations agreed upon by the contracting parties not set forth in the Merger Agreement. The representations and warranties set forth in the Merger Agreement may also be subject to a contractual standard of materiality different from that generally applicable to investors under federal securities laws. For the foregoing reasons, you should not rely on the representations and warranties contained in the Merger Agreement as statements of factual information.

In the Merger Agreement, Buckeye has made customary representations and warranties to Georgia-Pacific and the Purchaser with respect to, among other things:

 

   

corporate matters related to Buckeye and its subsidiaries, such as organization, standing, power and authority;

 

   

its capitalization;

 

   

the validity of the Merger Agreement, including approval by the Board;

 

   

required consents and approvals, and no violations of laws, governance documents or agreements;

 

   

required filings, compliance with laws and permits;

 

   

financial statements and public SEC filings;

 

   

internal controls and compliance with the Sarbanes-Oxley Act of 2002;

 

   

books and records;

 

   

the absence of undisclosed liabilities;

 

   

conduct of business in all material respects in the ordinary course of business consistent with past practice and the absence of a Company Material Adverse Effect;

 

   

employee benefit plans, ERISA matters and certain related matters;

 

   

labor and other employment matters;

 

   

material contracts;

 

   

litigation;

 

   

environmental matters;

 

   

intellectual property;

 

   

taxes;

 

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insurance;

 

   

title to properties and the absence of certain liens or encumbrances;

 

   

real property;

 

   

the opinion of its financial advisor;

 

   

the information included in the Offer to Purchase, the Solicitation/Recommendation Statement filed on Schedule 14D-9 and this proxy statement;

 

   

the vote required to adopt the Merger Agreement and approve the transactions contemplated thereby;

 

   

brokers’ fees and expenses;

 

   

related party transactions;

 

   

key customers and suppliers;

 

   

compliance with anti-corruption laws and export controls;

 

   

competition and antitrust compliance; and

 

   

certain contracts containing competition or pricing limitations, “most favored nation” rights, rebates or other loyalty provisions that would apply to the Purchaser or its affiliates after completion of the Merger.

Some of the representations and warranties in the Merger Agreement made by Buckeye are qualified as to “materiality” or “Company Material Adverse Effect.” For purposes of the Merger Agreement, a “Company Material Adverse Effect” means any change, event, effect, occurrence, effect, state of facts or development that, individually or in the aggregate, (i) has had or would reasonably be expected to have a material adverse effect on the business, results of operations, assets, liabilities or condition (financial or otherwise) of Buckeye and its subsidiaries taken as a whole, or (ii) prevents or materially delays, or would reasonably be expected to prevent or materially delay, the completion of the Merger. The definition of “Company Material Adverse Effect” excludes from clause (i) any change, event, effect, occurrence, state of facts or development resulting from, and only to the extent attributable to:

 

   

changes in general economic or political conditions or financial, credit or securities markets in general (including interest or exchange rates or energy prices generally);

 

   

changes in the industries in which Buckeye operates;

 

   

changes in laws applicable to Buckeye or any of its subsidiaries or any of their respective properties or assets or changes in GAAP;

 

   

any man-made or natural disasters, acts of war, armed hostilities, sabotage or terrorism, or any escalation or worsening of any acts of war, armed hostilities, sabotage or terrorism;

 

   

any changes in the market price or trading volume of the Shares or any failure to meet internal or published projections, forecasts or revenue or earnings predictions for any period; provided, however, that the underlying causes of such change or failure are not excluded by this bullet point;

 

   

the entry into and announcement of the Merger Agreement and the transactions contemplated by the Merger Agreement, including any loss of employees or customers, or any litigation arising from allegations of a breach of fiduciary duty related to the Merger Agreement or the transactions contemplated thereby;

 

   

any acts or omissions of Georgia-Pacific or the Purchaser prior to the Effective Time;

 

   

any acts or omissions of Buckeye or its subsidiaries taken at the written request of Georgia-Pacific or the Purchaser or with their prior written consent; and

 

   

capital expenditures less than $100 million in the aggregate reasonably expected to be required in connection with the granting of certain permits related to the relocation of a wastewater discharge point into the Fenholloway River,

 

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except, as to the first through fourth bullet points above, to the extent any such change, event, effect, occurrence, state of facts or development disproportionately affects Buckeye and its subsidiaries, when compared to other persons operating in the same industries in which Buckeye operates.

The definition of “Company Material Adverse Effect” includes any change, event, effect, occurrence, state of facts or development that occurs that, individually or in the aggregate, results, or would reasonably be expected to result, in a shutdown, idling or cessation for 60 consecutive days of any portion of operations at Buckeye’s manufacturing plant located in Perry, Florida, which portion of the operations has generated at least a majority of the total EBITDA attributable to the Perry facility during Buckeye’s fiscal year ended June 30, 2012, including, for the avoidance of doubt, any change, event, effect, occurrence, state of facts or development that would prevent Buckeye from relocating, or would reasonably be expected to cause Buckeye to be unable to relocate, its National Pollutant Discharge Elimination System wastewater discharge point to the Fenholloway River or its associated estuary, to the extent relocation is required to prevent such shutdown, idling or cessation.

In the Merger Agreement, Georgia-Pacific and the Purchaser have made customary representations and warranties to Buckeye with respect to, among other things:

 

   

corporate matters, such as organization, standing, power and authority;

 

   

the validity of the Merger Agreement, including approval by Georgia-Pacific’s and the Purchaser’s boards of directors;

 

   

required consents and approvals, and no violations of laws, governance documents or agreements;

 

   

litigation;

 

   

the information included in the Offer to Purchase, the solicitation/recommendation statement filed on Schedule 14D-9 and this proxy statement;

 

   

ownership of Shares by Georgia-Pacific and the Purchaser;

 

   

sufficiency of funds;

 

   

ownership of the Purchaser by Georgia-Pacific;

 

   

the absence of management arrangements requiring disclosure under Item 1005(d) of Regulation M-A; and

 

   

broker’s fees and expenses.

None of the representations and warranties contained in the Merger Agreement or in any instrument delivered pursuant to the Merger Agreement survives the Effective Time. This limit does not apply to any covenant or agreement of the parties which by its terms contemplates performance after the Effective Time.

Conduct of Business of Buckeye Pending Closing

Except as required by applicable laws or the Merger Agreement, or as otherwise agreed by the parties, unless Georgia-Pacific has otherwise agreed in writing (such consent not to be unreasonably withheld, conditioned or delayed), from the date of the Merger Agreement until the Effective Time, Buckeye has agreed that it will, and will cause its subsidiaries to:

 

   

conduct its operations in the ordinary course of business consistent with past practice in all material respects;

 

   

use commercially reasonable best efforts to keep available the services of the current officers, and other key employees of Buckeye and its subsidiaries;

 

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use commercially reasonable best efforts to preserve substantially intact its present business organization; and

 

   

use commercially reasonable best efforts to preserve the goodwill and current relationships of Buckeye and its subsidiaries with material customers, suppliers and others having significant and material business relationships with Buckeye and its subsidiaries.

In addition, except as required by applicable law or as expressly contemplated by the Merger Agreement or as otherwise agreed by the parties, or otherwise consented to in writing by Georgia-Pacific (which consent may not be unreasonably withheld, conditioned or delayed), from the date of the Merger Agreement until the Effective Time, Buckeye will not, and will not permit its subsidiaries not to, among other things and subject to certain exceptions set forth in the Merger Agreement:

 

   

amend its Charter or By-laws;

 

   

issue, sell or pledge any shares of capital stock of, or other equity interests in, Buckeye or its subsidiaries, or any rights based on the value of any such equity interests, other than the issuance of Shares upon the exercise of outstanding stock options and transactions among Buckeye and its wholly-owned subsidiaries;

 

   

sell, pledge, lease, license, abandon, or permit to lapse (in the case of material intellectual property), or fail to maintain in the ordinary course of business consistent with past practice (subject, in the case of tangible property, to ordinary wear and tear) any property or assets (including intellectual property) of Buckeye or any of its subsidiaries, except (i) pursuant to existing contracts for the sale or purchase of goods or services in the ordinary course of business consistent with past practice, (ii) in the ordinary course of business consistent with past practice, dispositions of equipment and property no longer used in the operation of Buckeye’s business, (iii) dispositions of assets and inventory related to the Delta facility in Vancouver, Canada, (iv) sales of inventory in the ordinary course of business consistent with past practice, (v) pursuant to security interests granted to secure borrowings under Buckeye’s existing credit facility in the ordinary course of business, (vii) for property or assets with a fair market value of less than $500,000 individually, or (viii) for grants of easements on or licenses to access Buckeye’s real property in the ordinary course of business consistent with past practice that would not reasonably be expected to adversely impact in any material respect Buckeye’s operations as currently conducted;

 

   

except for regular quarterly cash dividends in the ordinary course consistent with past practice in an amount not to exceed $0.09 per Share per quarter, declare, make or pay any dividend or other distribution with respect to any of Buckeye’s capital stock or other equity interests (other than dividends paid by a wholly-owned Buckeye subsidiary organized in the United States to Buckeye or another wholly-owned subsidiary organized in the United States) or enter into any agreement with respect to the voting or registration of Buckeye’s capital stock or other equity interests;

 

   

reclassify, combine, split, subdivide or amend the terms of, or redeem or purchase, any of its capital stock, or other equity interests, except (i) the acquisition by Buckeye of Shares in connection with the surrender of Shares by holders of Buckeye stock options in order to pay the exercise price of the option in accordance with the terms of such options, (ii) the withholding or disposition of Shares to satisfy withholding tax obligations with respect to awards granted pursuant to any Buckeye equity plans in accordance with the terms of such awards, (iii) the acquisition by Buckeye in the ordinary course of business consistent with past practice in connection with terminated employees of awards and equity under any Buckeye equity plans in connection with the forfeiture of such awards and equity pursuant to the terms of the equity plans and in any event at a price per share not in excess of the fair market value of such award or the Merger Consideration and (iv) the acquisition by the trustee of Buckeye’s 401(k) plan of Shares in order to satisfy participant elections under the 401(k) plan;

 

   

merge or consolidate Buckeye or any of its subsidiaries with any entity or adopt a plan of complete or partial liquidation, dissolution, restructuring, recapitalization or other reorganization of Buckeye or any of its subsidiaries (other than the Merger Agreement);

 

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acquire (including by merger or acquisition of stock or assets) any interest in or assets of any other entity or any equity interest therein, other than acquisitions of goods and services in the ordinary course of business consistent with past practice;

 

   

incur indebtedness for borrowed money or issue debt securities or assume or guarantee the obligations of any person (other than with respect to a wholly-owned subsidiary of Buckeye organized in the United States or between subsidiaries of Buckeye organized in the United States) for borrowed money in excess of $5 million in the aggregate, except for borrowings under Buckeye’s existing credit facility not to exceed $100 million in the aggregate;

 

   

make any loans, advances or capital contributions to, or investments in, any other person (other than any wholly-owned subsidiaries of Buckeye), other than routine travel, relocation and business advances in the ordinary course of business to employees of Buckeye or any of its subsidiaries;

 

   

other than (i) entry into, renewal or renegotiation of customer and supplier contracts in the ordinary course of business consistent with past practice that are terminable by Buckeye or any of its subsidiaries within 12 months of the effective date of the contract (not including any transition, ramp down or phase out period of less than six months or less) without premium or penalty (except for cotton linter pulp contracts, that are terminable by Buckeye or any of its subsidiaries within three years of the effective date of the contract without premium or penalty); or (ii) the renewal or renegotiation of customer supplier contracts providing for a renewed or renegotiated term no longer than the original term of such contract (provided, that in no event will such renewed or renegotiated contract provide for a term of greater than three years (not including any transition, ramp down or phase out period of six months or less) or contain termination provisions less favorable to Buckeye or the Buckeye subsidiary than contained in the existing contract), (a) terminate, cancel, renew or agree to any material amendment of any material contract, (b) enter into any material contract, or (c) amend any existing contract such that it would become a material contract; provided that in no event will the permitted actions described in clauses (i) and (ii) of this bullet point permit Buckeye to enter into (x) any purchase contract with fluff pulp suppliers outside the ordinary course of business consistent with past practice or (y) (1) any joint venture or partnership agreements with third parties, (2) any agreement that limits the payment of dividends or other distributions by Buckeye or its subsidiaries, (3) any contract that grants a right of first refusal or that limits the ability of Buckeye or its subsidiaries to own, operate, sell, or, pledge any material assets or businesses, (4) any contract that limits the freedom of Buckeye or its subsidiaries to engage in any line of business, compete with any person or purchase, sell, supply or distribute any product or service, in each case, in any geographic area (other than with respect to distribution and sales agency contracts), (5) any contract with “take or pay,” “requirements” or other similar provisions obligating a person to provide the quantity of goods or services required by another person in excess of $5 million in the aggregate on or after April 23, 2013 or $1 million within any 12-month period following April 23, 2013 (other than with respect to cotton linter pulp customer contracts) or (6) certain contracts containing competition or pricing limitations, “most favored nation” rights, rebates or other loyalty provisions;

 

   

make or authorize any capital expenditure in excess of (i) for the fiscal year ending June 30, 2013, 120% of Buckeye’s existing capital expenditure budget and (ii) for the fiscal year ending June 30, 2014, 120% of the aggregate amount of Buckeye’s and its subsidiaries’ capital expenditures in fiscal year 2013;

 

   

subject to routine delays and other delays consistent with past practice, fail to make or authorize any currently scheduled capital expenditures, except for any such deficiency in capital expenditures that, in the aggregate, equal to payments of less than 20% of the total amount contemplated in Buckeye’s capital expenditures budget;

 

   

except as required by law or to comply with any existing employee benefit plan or agreement;

 

   

increase the compensation or benefits of any current or former director, officer, employee or independent contractor of Buckeye or any of its subsidiaries (each a “Participant”) except for

 

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routine increases in base cash compensation to Participants (other than officers and directors) in the ordinary course of business consistent with past practice,

 

   

pay to any Participant any compensation or benefit not provided for under any employee benefit plan or agreement, other than the payment of base cash compensation in the ordinary course of business consistent with past practice and reimbursement of reasonable business expenses consistent with past practice,

 

   

grant any new severance, change of control, retention, termination or similar compensation or benefits to any Participant, except for the payment of severance or other termination benefits pursuant to Buckeye’s existing policies in the ordinary course of business consistent with past practice,

 

   

adopt, establish, enter into, amend, modify or terminate any employee benefit plan, collective bargaining or similar agreement,

 

   

enter into any trust, annuity or insurance contract or similar agreement or take any other action to fund or otherwise secure the payment of any compensation or benefit,

 

   

amend or modify the terms of any employee benefit plan to accelerate the time of vesting or payment of any compensation or benefit or

 

   

terminate without cause the employment of any employee other than in the ordinary course of business consistent with past practice; provided, in each case, that Buckeye and its subsidiaries may enter into and amend employment and consulting arrangements with Participants (other than officers and directors) in connection with promotions, new hires or engagements in the ordinary course of business consistent with past practice;

 

   

forgive any loans to directors, officers or employees;

 

   

pre-pay long-term debt or waive, pay, or satisfy any liabilities or obligations (absolute, accrued, contingent or otherwise), except in the ordinary course of business consistent with past practice and in accordance with the terms thereof; accelerate or delay collection of notes or accounts receivable; delay or accelerate in any material respect payment of any account payable; or vary inventory practices in any material respect;

 

   

make any change in accounting policies, practices, principles, methods or procedures, other than as required by GAAP, Regulation S-X promulgated under the Exchange Act, applicable law, or by a governmental entity;

 

   

compromise, settle or agree to settle any suit, action, claim, proceeding or investigation other than compromises, settlements or agreements in the ordinary course of business consistent with past practice that do not involve the payment of monetary damages in excess of an agreed amount, and do not include any other obligation to be performed by, or limitation upon, Buckeye or its subsidiaries, Georgia-Pacific, the Purchaser or their affiliates that is material to any of them;

 

   

make, change or rescind any material tax election; amend any income or other material tax return or claim for refund except to the extent otherwise required by law; request any ruling or enter into any closing agreement with respect to taxes; make any change in any method of tax accounting or any annual tax accounting period; or file any tax return in a manner materially inconsistent with past practices except to the extent otherwise required by law;

 

   

write up, write down or write off the book value of any assets, except in accordance with GAAP consistently applied;

 

   

exempt or make any person (other than Georgia-Pacific and the Purchaser) not subject to the provisions of Section 203 of the DGCL or other similar state takeover laws;

 

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convene any regular or Special Meeting (or any adjournment or postponement thereof) of the Buckeye stockholders other than (i) a stockholder meeting to adopt the Merger Agreement and approve the Merger (if such a meeting is required by applicable law) and (ii) a regularly scheduled annual meeting of stockholders for purposes of election of directors, ratification of Buckeye’s auditors and other routine matters;

 

   

fail to keep in force material insurance policies;

 

   

enter into, renew, modify or extend any contract reasonably expected to result in the violation of certain export control laws, to the extent performance under such contract could require performance after the Effective Time; and

 

   

authorize or enter into any contract or otherwise make any commitment to do any of the things described in the preceding bullet points.

Access to Information; Confidentiality

Until the earlier of the Effective Time and the termination of the Merger Agreement in accordance with its terms, Buckeye agreed that it will and will cause each of its subsidiaries to: (i) provide to Georgia-Pacific and the Purchaser reasonable access during normal business hours upon prior notice to the officers, employees, agents, properties, offices and other facilities of Buckeye and its subsidiaries and to the books and records thereof (including tax returns and related workpapers) as Georgia-Pacific or the Purchaser may reasonably request, (ii) use commercially reasonable best efforts to furnish during normal business hours such information concerning Buckeye’s business, properties, offices and other properties, contracts, assets, liabilities, employees, officers and other aspects as Georgia-Pacific or the Purchaser may reasonably request, (iii) reasonably cooperate with Georgia-Pacific’s representatives to organize and facilitate meetings with Buckeye representatives to be located at Buckeye’s properties, offices or other facilities, (iv) if reasonably requested by Georgia-Pacific or the Purchaser, use commercially reasonable best efforts to furnish or produce information related to Buckeye’s financial or tax records and (v) reasonably cooperate with Georgia-Pacific with respect to communications to, and to organize and facilitate meetings with, Buckeye’s customers, suppliers and other key business relations; all subject to certain conditions and reasonableness limitations. Georgia-Pacific has agreed to comply with the terms of the Confidentiality Agreement with respect to information disclosed after April 23, 2013.

No Solicitation of Transactions

From the date of Merger Agreement until completion of the Merger or, if earlier, the termination of the Merger Agreement in accordance with its terms, Buckeye agreed that it will, and will cause its subsidiaries and Buckeye’s directors and executive officers to, and will use its commercially reasonably best efforts to cause their respective representatives to (i) cease and cause to be terminated any existing solicitation, discussion or negotiation with any third party that may be ongoing with respect to a Competing Proposal (as defined below), and (ii) request any such third party to promptly return or destroy (and confirm destruction of) all confidential information concerning Buckeye and its subsidiaries.

Subject to certain qualifications and exceptions outlined below, from the date of Merger Agreement until completion of the Merger or, if earlier, the termination of the Merger Agreement in accordance with its terms, Buckeye agreed that it will not, and will cause its subsidiaries and directors and executive officers not to, and will use its commercially reasonable best efforts to cause its representatives not to:

 

   

solicit, initiate, or knowingly facilitate or knowingly encourage any inquiry, discussion, offer or request that constitutes, or could reasonably be expected to lead to, a Competing Proposal;

 

   

enter into, continue or otherwise participate in any discussions or negotiations with, or furnish any non-public information relating to Buckeye or its subsidiaries to, or afford access to the books or records or officers of Buckeye or its subsidiaries to, any third party that, to Buckeye’s knowledge, is seeking to make, or could reasonably be expected to make, or has made, a Competing Proposal;

 

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approve, endorse, recommend or enter into any letter of intent, memorandum of understanding, agreement in principle, acquisition agreement, merger agreement or other definitive agreement (other than certain permitted confidentiality agreements) with respect to any Competing Proposal (an “Alternative Acquisition Agreement”);

 

   

take any action to make the provisions of any state anti-takeover statute inapplicable to any transactions contemplated by a Competing Proposal;

 

   

terminate, amend, release, modify or fail to enforce any provision of, or grant any permission, waiver or request under, any standstill, confidentiality or similar agreement entered into by Buckeye and a third party in respect of or in contemplation of a Competing Proposal (other than (x) upon such third party’s request, to allow such third party to make or amend a non-public Competing Proposal to Buckeye’s board of directors, or (y) to the extent the Board determines in good faith, after consultation with its outside financial and legal advisors, that failure to take any of the actions described in this bullet point would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable law); or

 

   

publicly propose to do any of the actions described in the preceding third, fourth, and fifth bullet points of this sentence.

Also subject to the qualifications and exceptions outlined below, neither the Board nor any committee thereof may:

 

   

withdraw or modify, or publicly propose to withdraw or modify, in a manner adverse to the Purchaser, the Company Board Recommendation (as defined below);

 

   

fail to include the Company Board Recommendation in the Schedule 14D-9 or this proxy statement, as applicable;

 

   

if a tender offer or exchange offer for shares of capital stock of Buckeye that constitutes a Competing Proposal is commenced, fail to recommend against acceptance by the Buckeye stockholders of such tender offer or exchange offer within 10 business days after commencement thereof pursuant to Rule 14d-2 under the Exchange Act;

 

   

approve or recommend, or publicly propose to approve or recommend, any Competing Proposal; or

 

   

cause or permit Buckeye to enter into any Alternative Acquisition Agreement.

Any of the actions described in the first through fourth bullet points in the immediately preceding sentence is referred to in the Merger Agreement as an “Adverse Recommendation Change.”

Notwithstanding the restrictions described above, at any time before the affirmative vote of the Buckeye stockholders required for adoption of the Merger Agreement, Buckeye may, subject to compliance with the provisions described in the immediately succeeding paragraph, furnish non-public information with respect to Buckeye and its subsidiaries to any third party that has submitted an unsolicited, bona fide written Competing Proposal, and engage in discussions or negotiations with such person with respect to the Competing Proposal, if:

 

   

such Competing Proposal was not received in violation of any of Buckeye’s obligations under the non-solicitation provisions of the Merger Agreement;

 

   

the Board determines in good faith, after consultation with its outside financial advisor and counsel, that the Competing Proposal constitutes, or would reasonably be expected to lead to, a Superior Proposal (as defined below);

 

   

after consultation with its outside counsel, the Board determines in good faith that the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties;

 

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any information furnished to the third party making the Competing Proposal is covered by a confidentiality agreement containing terms no less favorable in the aggregate to Buckeye, including the “standstill” provisions, than the terms of the Confidentiality Agreement (except that such confidentiality agreement need not prohibit non-public Competing Proposals); and

 

   

any non-public information provided to such third party, and not previously provided to the Purchaser, is provided to the Purchaser within 24 hours after it is provided to the third party.

The Merger Agreement requires that, prior to taking any of the actions referred to in the immediately preceding paragraph, Buckeye must notify the Purchaser orally and in writing that it proposes to furnish such non-public information and/or enter into such discussions. This notice must also include an unredacted copy of the Competing Proposal submitted by such third party (including any materials relating to such third party’s proposed debt financing, if any).

In addition, Buckeye has agreed to promptly, and in any event within 24 hours, notify the Purchaser in the event that Buckeye or its subsidiaries or any of their respective representatives has received a Competing Proposal or certain other informal indications of interest that would reasonably be expected to lead to a Competing Proposal. Such notification will include a copy of the written Competing Proposal or other indication (or, where no such copy is available, a reasonably detailed description of such Competing Proposal or other indication), and the identity of the person making the Competing Proposal or other indication. Buckeye is required to keep the Purchaser reasonably informed (orally and in writing) promptly (and in any event at the Purchaser’s request and otherwise no later than 24 hours after the occurrence of any material changes or developments) of the status of any Competing Proposal or other indication (including the terms and conditions thereof and of any modification thereto), including furnishing the Purchaser with copies of any material inquiries, material correspondence and draft documentation related thereto.

The Merger Agreement does not prohibit Buckeye or the Board, directly or indirectly through Buckeye’s representatives, from:

 

   

making any “stop, look and listen” communication to Buckeye’s stockholders pursuant to Rule 14d-9(f) promulgated under the Exchange Act; or

 

   

complying with its disclosure obligations under applicable law with respect to a Competing Proposal, including taking and disclosing to stockholders a position with respect to a tender or exchange offer by a third party pursuant to Rule 14d-9 or Rule 14e-2 promulgated under the Exchange Act (other than communications described in the immediately preceding bullet point); provided, however, that any disclosure permitted under this bullet point will be deemed an Adverse Recommendation Change unless it includes either an express rejection of any applicable Competing Proposal or an express reaffirmation of the Board’s recommendation in favor of the transactions contemplated by the Merger Agreement.

Buckeye Board Recommendation

Subject to the provisions described below, the Board agreed to recommend that the holders of the Shares adopt the Merger Agreement and approve the Merger. This is referred to as the “Company Board Recommendation.” The Board also agreed to include the Company Board Recommendation in this proxy statement. The Merger Agreement provides that the Board will not affect an Adverse Recommendation Change except as described below.

Notwithstanding any of the restrictions described above, prior to the affirmative vote of the Buckeye stockholders required for adoption of the Merger Agreement, the Board may effect an Adverse Recommendation Change with respect to a Superior Proposal, or otherwise terminate the Merger Agreement to enter into a definitive agreement with respect to a Superior Proposal, if:

 

   

Buckeye has received a bona fide written Competing Proposal that the Board determines in good faith, after consultation with its outside financial and legal advisors, constitutes a Superior Proposal

 

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(after having complied with and giving effect to any modifications of the Merger Agreement proposed by the Purchaser in a binding written offer);

 

   

the Board determines in good faith, after consultation with its outside legal advisors, that the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable law;

 

   

Buckeye has not breached the non-solicitation provisions of the Merger Agreement in any material respect with respect to the Superior Proposal;

 

   

Buckeye has provided to the Purchaser a written notice of its intention to take such action, which we refer to as a “notice of change of recommendation.” The notice of change of recommendation must include an unredacted copy of the Superior Proposal (including the identity of the person making the Superior Proposal and any debt financing materials related thereto, if any);

 

   

during the five calendar day period after the Purchaser’s receipt of the notice of change of recommendation, Buckeye has, and has used its commercially reasonable best efforts to cause its representatives to, negotiate with the Purchaser in good faith (if the Purchaser desires to negotiate) to make such adjustments in the terms and conditions of the Merger Agreement (which adjustments will only be taken into consideration to the extent proposed in a binding offer in writing by the Purchaser) so that such Superior Proposal ceases to constitute a Superior Proposal;

 

   

following the end of the five calendar day period, the Board has determined in good faith, after consultation with its outside financial and legal advisors, taking into account any changes to the Merger Agreement proposed in a binding offer in writing by the Purchaser, that the Superior Proposal continues to constitute a Superior Proposal; and

 

   

in the event Buckeye desires to terminate the Merger Agreement to enter into a definitive agreement with respect to a Superior Proposal, Buckeye has paid the Termination Fee (as defined below) in advance of or concurrently with the termination.

In addition, the Board may effect an Adverse Recommendation Change other than in connection with a Superior Proposal, if:

 

   

there is an Intervening Event (as defined below) as a result of which the Board determines in good faith, after consultation with its outside financial and legal advisors, that the failure to take such action would reasonably be expected to be inconsistent with the directors’ fiduciary duties under applicable law;

 

   

Buckeye has provided to the Purchaser a notice of change of recommendation, which notice included a summary, in all material respects, of the Intervening Event;

 

   

during the five calendar day period after the Purchaser’s receipt of the notice of change of recommendation, Buckeye has, and has used its commercially reasonable best efforts to cause its representatives to, negotiate with the Purchaser in good faith (if the Purchaser desires to negotiate) to make such adjustments in the terms and conditions of the Merger Agreement (which adjustments will only be taken into consideration to the extent proposed in a binding offer in writing by the Purchaser) as would permit the Board (consistent with its fiduciary duties under applicable law) to not make an Adverse Recommendation Change; and

 

   

following the end of the five calendar day period, the Board has determined in good faith, after consultation with its outside legal advisors, taking into account any changes to the Merger Agreement proposed in a binding offer in writing by the Purchaser, that a failure to make an Adverse Recommendation Change would reasonably be expected to be inconsistent with its fiduciary duties to Buckeye stockholders under applicable law.

The Merger Agreement provides that any material revisions to a Superior Proposal or any material change to the facts and circumstances relating to an Intervening Event, as applicable, will require Buckeye to deliver a

 

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new notice of change of recommendation and to provide a new negotiating period in accordance with the terms described above, except that for these purposes, the required period will be three calendar days and not five. Notwithstanding the requirement described in the preceding sentence, if Buckeye delivers to the Purchaser notice of a Superior Proposal that includes an aggregate purchase price per share in excess of 110% of the per Share Merger Consideration, and Buckeye has complied with each of its obligations described above with respect to such Superior Proposal, then Buckeye will not thereafter be required to comply further with the requirements described in the fifth and sixth bullet points in the above paragraph regarding an Adverse Recommendation Change or termination of the Merger Agreement with respect to a Superior Proposal. Upon the Purchaser’s receipt of a notice of Superior Proposal that includes an aggregate purchase price per share in excess of 110% of the per Share Merger Consideration, the standstill restrictions set forth in the confidentiality Agreement between Georgia-Pacific and Buckeye shall terminate and cease to apply to Georgia-Pacific and the Purchaser.

Buckeye has agreed that any breach by any representative of Buckeye of the restrictions described above relating to non-solicitation of Competing Proposals will be deemed to be a breach of the Merger Agreement by Buckeye.

For purposes of the Merger Agreement:

 

   

“Competing Proposal” means, any offer or proposal from a third party relating to:

 

   

any direct or indirect acquisition or purchase, in a single transaction or series of related transactions, of (i) fifteen percent (15%) or more of the assets of Buckeye and its subsidiaries, taken as a whole, or (ii) fifteen percent (15%) or more of the combined voting power of Buckeye;

 

   

any tender offer or exchange offer that if completed would result in any person or group beneficially owning fifteen percent (15%) or more of the combined voting power of Buckeye;

 

   

the issuance by Buckeye of fifteen percent (15%) or more of its voting securities; or

 

   

any merger, consolidation, business combination, recapitalization, liquidation, dissolution, share exchange or other transaction involving Buckeye or any of Buckeye’s subsidiaries in which a third party or its stockholders, if completed, would beneficially own, directly or indirectly, fifteen percent (15%) or more of the combined voting power of Buckeye or, if applicable, the surviving entity or the resulting direct or indirect parent of Buckeye or such surviving entity.

 

   

“Intervening Event” means any material event or development or material change in circumstances first occurring, arising or coming to the attention of the Board after April 23, 2013 and prior to the earlier of the acceptance for payment of Shares in the Offer or the affirmative vote of the Buckeye stockholders required for adoption of the Merger Agreement, to the extent that such event, development or change in circumstances (i) is disproportionately more favorable to the recurring financial condition and results of operations of Buckeye and its subsidiaries, taken as a whole, when compared to other persons operating in the same industries and (ii) was not reasonably foreseeable as of or prior to the execution of the Merger Agreement; provided, however, that in no event will the following events, developments or changes in circumstances constitute an Intervening Event: (a) the receipt, existence or terms of a Competing Proposal or any matter relating thereto or consequence thereof, (b) any events, developments, changes in circumstances relating to Georgia-Pacific or the Purchaser or any of their affiliates or any competitor of Buckeye, (c) the actual or potential sale of Buckeye’s nonwovens business, including the purchase price or other terms and conditions thereof, (d) changes in laws applicable to Buckeye or any of its subsidiaries, or (e) changes in the market price or trading volume of the Shares or the fact that Buckeye meets or exceeds internal or published projections, forecasts or revenue or earnings predictions for any period; provided, however, that the underlying causes of such change or fact are not excluded by this clause (e).

 

   

“Superior Proposal” means a bona fide written Competing Proposal (except the references in the definition of “Competing Proposal” to “15%” are replaced by “50%”) made by a third party which was not solicited or obtained in violation of the non-solicitation and related provisions of the Merger

 

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Agreement and which, in the good faith judgment of the Board, and after consultation with its outside financial and legal advisors, taking into account the various legal, financial, regulatory and other aspects of such Competing Proposal, including the financing terms thereof, the expected timing and risk and likelihood of completion, and the third party making such Competing Proposal (i) if accepted, is reasonably likely to be completed in accordance with its terms and (ii) if completed, would result in a transaction that is more favorable to Buckeye’s stockholders from a financial point of view than the Merger (after giving effect to all adjustments to the terms thereof which may be proposed in a binding offer in writing by the Purchaser).

Appropriate Action; Consents; Filings

Each of Buckeye, Georgia-Pacific and the Purchaser has agreed to use its commercially reasonable best efforts to:

 

   

take, or cause to be taken, all appropriate action and do, or cause to be done, and to assist and cooperate with the each other in doing, all things necessary, proper or advisable under applicable law to complete the transactions contemplated by the Merger Agreement as promptly as practicable;

 

   

take the actions required to cause, as promptly as possible after April 23, 2013, the expiration of the notice periods required by applicable competition laws for the completion of the transactions contemplated by the Merger Agreement;

 

   

obtain from any governmental entities any consents, licenses, permits, waivers, approvals, authorizations or orders required to be obtained to complete the Merger no later than February 20, 2014 and to avoid any action or proceeding by any governmental entity that would (i) prevent the closing of the Merger no later than February 20, 2014 or (ii) delay the closing beyond February 20, 2014, in connection with the authorization, execution and delivery of the Merger Agreement and the completion of the transactions contemplated thereby;

 

   

as promptly as reasonably practicable, and in any event within 10 business days after April 23, 2013, make all necessary filings and submissions, and pay any related fees, with respect to the Merger Agreement, the Offer, the Top-Up Option, and the Merger required under the Exchange Act and any other applicable securities laws and the HSR Act, which filings and submissions were timely made; and

 

   

as promptly as reasonably practicable after April 23, 2013, make all necessary filings and submissions, and pay any related fees, with respect to the Merger Agreement and the Merger required under any other applicable law not referenced in the immediately preceding bullet point.

Buckeye and the Purchaser have agreed to cooperate with each other in connection with (i) preparing and filing any filings or documents related to the matters described in the immediately preceding bullet points or otherwise in connection with the transactions contemplated by the Merger Agreement, (ii) determining whether any action by, or filing with, any governmental entity is required in connection with the completion of the Merger, (iii) seeking any actions, consents, approvals or waivers or making any such filings related to the matters described in the immediately preceding bullet points, (iv) resisting, contesting and defending against any lawsuit or other legal action that has been instituted or has threatened to be instituted challenging any transaction contemplated by the Merger Agreement as a violation of any competition law, (v) seeking to have vacated, lifted, reversed or overturned any judgment, injunction or other order that is in effect regarding any competition law that prohibits or restricts the completion of the transactions contemplated by the Merger Agreement and (vi) executing and delivering any additional instruments necessary to complete the transaction contemplated by the Merger Agreement.

Each of Buckeye and the Purchaser has agreed to give, or cause its subsidiaries to give, any notices to third parties and to use, and cause its subsidiaries to use, its commercially reasonable best efforts to obtain any third party consents identified by Buckeye or the Purchaser and that are reasonably believed to (i) be necessary, proper or

 

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advisable to complete the transactions contemplated by the Merger Agreement, (ii) required to be disclosed by Buckeye to the Purchaser, or vice versa, in connection with entering into the Merger Agreement, or (iii) required to prevent a Company Material Adverse Effect from occurring prior to or after the completion of the Merger. If either party fails to obtain any third party consent, that party will use its commercially reasonable best efforts, and will take any actions reasonably requested by the other party, to minimize any adverse effect upon Buckeye and Georgia-Pacific, their respective subsidiaries and their respective businesses resulting, or which could reasonably be expected to result, after the completion of the Merger, from the failure to obtain such consent. The failure to obtain any third party consent pursuant to the provision of the Merger Agreement summarized in this paragraph will not by itself be considered a condition to the obligations of Georgia-Pacific and the Purchaser to complete the Merger. Buckeye, its subsidiaries, Georgia-Pacific and the Purchaser are not required to, and Buckeye and its subsidiaries will not without the written consent of the Purchaser, make any payment to or commit to pay any third party or agree to incur any liability or other obligation, in order to obtain any approval or consent with respect to transactions contemplated by the Merger Agreement.

Buckeye, Georgia-Pacific and the Purchaser will promptly notify the others of the making or commencement of any request, inquiry, investigation, action or legal proceeding by or before any governmental entity with respect to any of the transactions contemplated by the Merger Agreement, keep each other reasonably informed as to the status of these requests, inquiries, investigations, actions or legal proceedings, and in accordance with the requirements described in the immediately following paragraph, promptly inform the others of any communication with any governmental entity regarding the transactions contemplated by the Merger Agreement.

In furtherance of the actions and obligations described in the immediately preceding paragraph, each of Buckeye and Georgia-Pacific has agreed to use its commercially reasonable best efforts to supply as promptly as practicable any additional information and documentation that is requested pursuant to applicable competition laws and to resolve any objections that are asserted by any governmental entity with respect to the transactions contemplated by the Merger Agreement under those competition laws. Each of Buckeye, Georgia-Pacific and the Purchaser has agreed to not participate in any substantive meeting or discussion with any governmental entity in respect of any inquiry related to the transactions contemplated by the Merger Agreement unless first consulting with each other in advance and, to the extent permitted by the applicable governmental entity, giving the other parties a reasonable opportunity to attend and participate in the meeting or discussion.

Except as described in the immediately following paragraph, the Merger Agreement provides that, in connection with the receipt of any necessary approvals or clearances of a governmental entity, neither Georgia-Pacific nor Buckeye (nor any of their respective subsidiaries or affiliates) is required to sell, hold separate or otherwise dispose of or conduct their business in a specified manner, or agree to sell, hold separate or otherwise dispose of or conduct their business in a specified manner or enter into a voting trust arrangement, proxy arrangement, “hold separate” agreement or similar agreement, or permit the sale, holding separate or other disposition of, any assets of Georgia-Pacific, Buckeye or their respective subsidiaries or affiliates. In addition, nothing in the Merger Agreement prevents Georgia-Pacific or its affiliates from considering, negotiating or completing strategic transactions except that Georgia-Pacific and its affiliates agreed not to consider, negotiate or complete strategic transactions (other than those contemplated by the Merger Agreement) (i) involving in at least substantial part cotton liner pulp or nonwovens operations or (ii) with a company that has production capacity of greater than 500,000 metric tons per year of non-integrated bleached pulp capacity.

Georgia-Pacific and the Purchaser have agreed to divest the Specified Business (as defined below) on the terms described in this paragraph if (i) necessary to enable the closing of the transactions contemplated by the Merger Agreement to occur no later than February 20, 2014, (ii) Buckeye and its subsidiaries have complied in all material respects with their obligations to cooperate with the divestiture of the Specified Business described in the second following paragraph and (iii) Buckeye provides Georgia-Pacific and the Purchaser with certain required financial information regarding the Specified Business as promptly as reasonably practicable after April 23, 2013 (and, in any event, no later than 30 days after April 23, 2013), which financial information was provided by Buckeye to Georgia-Pacific on May 21, 2013. If all of the foregoing requirements occur, Georgia-Pacific and the

 

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Purchaser will commit to and effect by consent decree, “hold separate” orders or otherwise, the sale, divestiture or disposition of the Specified Business and create or terminate obligations of Buckeye and its subsidiaries related to the Specified Business, in each case, as may be required to obtain all authorizations, terminations of waiting periods, consents and approvals no later than February 20, 2014. Georgia-Pacific and the Purchaser have the absolute right to contest any challenges to the Merger Agreement by any governmental entity and to control all aspects of any litigation in connection with this right as long as (a) their actions do not prevent the closing of the transactions contemplated by the Merger Agreement from occurring no later than February 20, 2014 and (b) they provide Buckeye and its representatives with reasonable advance written notice of their actions, an opportunity to participate in all related litigation and consider in good faith Buckeye’s views and opinions.

For purposes of the Merger Agreement, “Specified Business” means the facility owned and operated by Buckeye in Gaston County, North Carolina. The Specified Business includes all tangible and intangible assets necessary to operate the Gaston County facility or used in or devoted to such facility. Georgia-Pacific and the Purchaser will not be required to offer to sell any asset, tangible or intangible, that is used by or for the benefit of Buckeye’s or its subsidiaries’ other businesses, except to the extent such assets are significant to the competitive viability of the Specified Business. If such shared assets are intellectual property assets (other than financial, marketing and business data, customer/supplier lists and information, pricing and cost information and business and marketing plans and proposals), Georgia-Pacific and the Purchaser would be required to offer a non-exclusive, worldwide, perpetual, irrevocable, non-terminable, fully paid-up and royalty-free license to use such assets in the nonwovens business. For all other shared assets, Georgia-Pacific and the Purchaser will not be required to offer to sell such shared assets unless the shared assets are significant to the competitive viability of the Specified Business. Finally, except for the previously described shared intellectual property assets, Georgia-Pacific and the Purchaser are not required to sell, hold separate, dispose of, grant any access or right to use Buckeye’s research and development facility located in Memphis, Tennessee, any portion of Buckeye’s facility in Perry, Florida and/or any assets used, maintained or developed at these facilities.

From April 23, 2013 until the earlier of the completion of the Merger or the termination of the Merger Agreement, at the request of the Purchaser, Buckeye is required to, and to cause its subsidiaries to, reasonably cooperate and assist the Purchaser and its representatives with the potential sale, divestiture or disposition of the Specified Business, including by:

 

   

providing the Purchaser and potential buyers and their representatives with financial and other diligence information regarding the Specified Business;

 

   

reasonably cooperating with the Purchaser in the preparation of a customary confidential information memorandum and other customary marketing materials regarding the Specified Business, and allowing the Purchaser to use Buckeye’s and its subsidiaries’ logos in these materials;

 

   

providing potential buyers and their representatives with customary due diligence materials in an electronic data room or other customary form;

 

   

causing the reasonable participation by officers and other management-level employees of Buckeye and its subsidiaries in the marketing efforts regarding the Specified Business, including attendance at management presentations and other meetings with potential buyers and their representatives;

 

   

providing reasonable access to the officers, employees and facilities of the Specified Business for due diligence purposes;

 

   

causing the reasonable participation by the executive officers of Buckeye in the negotiation, execution and delivery of definitive documentation related to the sale, divestiture or disposition of the Specified Business; and

 

   

taking actions reasonably requested by the Purchaser and the potential buyer to facility the timely satisfaction of all conditions to closing of the sale, divestiture or disposition of the Specified Business.

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customary form reasonably acceptable Buckeye, (ii) provide cooperation or access if it would unreasonably interfere with the business or operations of the Specified Business, (iii) take any action or provide any information to the extent prohibited by applicable law or Buckeye’s organization documents, that would involve disclosure of commercially or competitively sensitive information, result in a waiver of any legal privilege or trade secret protection or result in a breach of an agreement by Buckeye or its subsidiaries and (iv) agree to any contractual obligation that is not conditioned upon the closing of the transactions contemplated by the Merger Agreement and that does not terminate without liability to Buckeye and its subsidiaries upon the termination of the Merger Agreement in accordance with its terms.

Georgia-Pacific will, at Buckeye’s request, promptly reimburse Buckeye for reasonable documented expenses and costs incurred in connection with its cooperation in the potential sale, divestiture or disposition of the Specified Business. Georgia-Pacific will also indemnify and hold harmless Buckeye, its subsidiaries and their respective representatives against all liabilities incurred in connection with the potential sale, divestiture or disposition of the Specified Business, except in instances of Buckeye’s, its subsidiaries’ or their respective representatives’ willful misconduct or gross negligence.

Public Announcements

Buckeye and Georgia-Pacific agreed to not release any press release or make any public statement with respect to the Merger or the Merger Agreement without the prior written consent of the other (which consent may not be unreasonably withheld or delayed) and to consult with each other prior to issuing any press release or otherwise making any public statement with respect to the Merger.

Stockholder Litigation

The Merger Agreement provides that Buckeye will control, and will give the Purchaser the opportunity to participate in the defense of, any litigation brought by stockholders of Buckeye against Buckeye and/or members the Board relating to the transactions contemplated by the Merger Agreement, including the Merger; provided, however, that Buckeye may not agree to compromise or settle any such litigation without the prior written consent of the Purchaser (not to be unreasonably withheld, conditioned or delayed).

Termination

The Merger Agreement may be terminated:

 

   

by mutual written consent of the Purchaser and Buckeye, at any time prior to the Effective Time, whether before or after stockholder approval thereof; or

 

   

by either the Purchaser or Buckeye (which we refer to as “mutual termination rights”):

 

   

if Buckeye’s stockholders fail to adopt the Merger Agreement at the Special Meeting called for such purpose (or any adjournment or postponement thereof);

 

   

if the Merger has not been completed on or before July 22, 2013; provided, however, that if on July 22, 2013, the HSR Condition and/or the Other Governmental Approvals Condition have not been satisfied, and all of the other conditions to the Merger have been satisfied (other than the requirement of delivery of closing certificates) or are reasonably capable of being satisfied or waived (other than (i) the condition that the Merger Agreement have been adopted and approved by the requisite vote of Buckeye’s stockholders, and (ii) the conditions related to pending suits or proceedings by governmental entities or related to any law, judgment, order or injunctions, in each, under any competition laws), then the right to terminate described in this bullet point will not be available until after February 24, 2014; provided, further, that the right to terminate described in this bullet point will not be available to any party whose breach of the Merger Agreement has been the primary cause of or resulted in the non-satisfaction of any condition to the Merger; or

 

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if any court or other governmental entity of competent jurisdiction has issued an order, decree or ruling or taken any other action that, prior to the completion of the Merger, permanently restrains, enjoins or otherwise prohibits the Merger, and, in each case, such order, decree, ruling or other action has become final and nonappealable; provided that the right to terminate described in this bullet point will not be available to any party whose breach of the Merger Agreement has been the primary cause of or resulted in the issuance of or failure to lift such order, decree, ruling or other action; or

 

   

by the Purchaser (we refer to the below listed rights as the “Purchaser termination rights”):

 

   

at any time prior to the affirmative vote of the Buckeye stockholders required for adoption of the Merger Agreement:

 

   

if any Adverse Recommendation Change occurs; or

 

   

if Buckeye has breached, in any material respect, its non-solicitation and related board recommendation obligations under the Merger Agreement;

 

   

at any time prior to the completion of the Merger,

 

   

if (i) there is an inaccuracy in any representation or warranty of Buckeye contained in the Merger Agreement or a breach of any covenant of Buckeye contained in the Merger Agreement, and, in either case, as a result, any condition to the Purchaser’s obligation to effect the Merger based on the accuracy of Buckeye’s representations and warranties or Buckeye’s compliance with covenants would not, if such inaccuracy or breach continued, be satisfied; (ii) the Purchaser has delivered to Buckeye written notice of such inaccuracy or breach; and (iii) either such inaccuracy or breach is not capable of being cured prior to the applicable outside date or at least 30 calendar days have elapsed since the delivery of such written notice to Buckeye and such inaccuracy or breach has not been cured; provided, however, that the Purchaser is not permitted to terminate the Merger Agreement pursuant to this provision if there is an inaccuracy in any representation or warranty of Georgia-Pacific or the Purchaser contained in the Merger Agreement that has not then been cured or a breach of any covenant of Georgia-Pacific or the Purchaser contained in the Merger Agreement that, in either case, has or would reasonably be expected to prevent or materially delay completion of the Merger performance by Georgia-Pacific or the Purchaser of any of their material obligations under the Merger Agreement; or

 

   

subject to certain prior disclosure by Buckeye, if (i) following April 23, 2013, any fact(s), change(s), event(s), development(s) or circumstance(s) have occurred, arisen or come into existence or first become known to Georgia-Pacific or the Purchaser, or any worsening thereof (to the extent of such worsening), and which has had or would reasonably be expected to have, individually or in the aggregate with all other such fact(s), change(s), event(s), development(s) or circumstance(s), a Company Material Adverse Effect, (ii) the Purchaser has delivered to Buckeye written notice of such fact(s), change(s), event(s), development(s) or circumstance(s) and (iii) either such fact(s), change(s), event(s), development(s) or circumstance(s) is not capable of cure prior to the applicable outside date or at least 30 calendar days have elapsed since the date of delivery of such written notice to the Purchaser and such fact(s), change(s), event(s), development(s) or circumstance(s) have not been cured; or

 

   

by Buckeye (we refer to the below listed rights as the “Buckeye termination rights”):

 

   

at any time prior to the affirmative vote of the Buckeye stockholders required for adoption of the Merger Agreement:

 

   

if the Board determines to enter into a definitive written Alternative Acquisition Agreement with respect to a Superior Proposal, but only if (i) Buckeye is

 

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permitted to terminate the Merger Agreement and accept such Superior Proposal pursuant to the non-solicitation provisions of the Merger Agreement, and (ii) simultaneously with the termination of the Merger Agreement, Buckeye enters into an Alternative Acquisition Agreement with respect to the Superior Proposal and pays the Termination Fee to Georgia-Pacific; or

 

   

at any time prior to the completion of the Merger,

 

   

if (i) there is an inaccuracy in any representation or warranty of Georgia-Pacific or the Purchaser contained in the Merger Agreement or breach of any covenant of Georgia-Pacific or the Purchaser contained in the Merger Agreement that has or would reasonably be expected to prevent or materially delay completion of the Merger or performance by Georgia-Pacific or the Purchaser of any of their material obligations under the Merger Agreement, (ii) Buckeye has delivered to the Purchaser written notice of such inaccuracy or breach, and (iii) either such inaccuracy or breach is not capable of being cured or at least 30 calendar days have elapsed since the delivery of such written notice to the Purchaser and such inaccuracy or breach has not been cured; provided, however, that Buckeye is not permitted to terminate the Merger Agreement pursuant to this provision if there is an inaccuracy in any representation or warranty of Buckeye contained in the Merger Agreement that has not been cured or a breach of any covenant of Buckeye contained in the Merger Agreement such that, in either case, any condition to the obligation of Georgia-Pacific and the Purchaser to effect the Merger based on the accuracy of Buckeye’s representations and warranties or Buckeye’s compliance with covenants would not be satisfied.

Effect of Termination and Termination Fee

If the Merger Agreement is terminated in accordance with its terms by either Buckeye or the Purchaser, written notice thereof must be given to the other parties, specifying the provisions of the Merger Agreement being invoked and the basis for the termination under those provisions. The Merger Agreement will then become void and, except as specified in the Merger Agreement (including with respect to the payment of the Termination Fee as applicable), there will be no liability or obligation on the part of Georgia-Pacific, the Purchaser or Buckeye or their respective subsidiaries, officers, directors, or managers. No party is relieved of any liability or damages for a willful and material breach of the Merger Agreement.

Buckeye has agreed to pay the Purchaser the Termination Fee if:

 

   

the Purchaser terminates the Merger Agreement pursuant to any Purchaser termination right set forth in the first bullet point under the definition of “Purchaser termination right” above; or

 

   

Buckeye terminates the Merger Agreement pursuant to the Buckeye termination right set forth in the first bullet point under the definition of “Buckeye termination right” above (in connection with the termination of the Merger Agreement to accept a Superior Proposal).

Buckeye is also required to pay the Termination Fee if:

 

   

the Purchaser or Buckeye terminates the Merger Agreement pursuant to the mutual termination right set forth in the first (under certain circumstances), second, or third (under certain circumstances) bullet points under the definition of “mutual termination right” above; or

 

   

the Purchaser terminates the Merger Agreement pursuant to any Purchaser termination right set forth in the first sub-bullet point under the second bullet point under the definition of “Purchaser termination right” above;

and, in each case:

 

   

prior to the termination of the Merger Agreement a Competing Proposal is made to Buckeye or the Board and not publicly withdrawn prior to the event or breach forming the basis for the termination right, and

 

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Buckeye shall complete a Competing Proposal or enter into an agreement with respect to a Competing Proposal, in either case within nine months after the termination of the Merger Agreement; provided that for purposes of this and the prior bullet point, references to 15% shall be deemed to be references to 40% in the definition of “Competing Proposal.”

The parties agreed that the payment of the Termination Fee after a valid termination of the Merger Agreement will be the exclusive remedy available to Georgia-Pacific and the Purchaser for any loss resulting from the failure of Merger to be completed. In no event will Buckeye be required to pay the Termination Fee more than once.

If Buckeye fails to pay the Termination Fee when due, and the Purchaser or Georgia-Pacific commences a suit which results in a final judgment against Buckeye for the Termination Fee, Buckeye is required to promptly pay the Termination Fee to Georgia-Pacific with interest from the date such payment was required to be made until the date of payment.

Fees and Expenses

If the Purchaser terminates the Merger Agreement pursuant to its terms, the Purchaser has agreed to reimburse Buckeye, upon request, for 50% of its reasonable documented fees incurred in connection with Buckeye’s engagement of its advisors to produce certain information requested by the Purchaser in accordance with the Merger Agreement. The Purchaser has further agreed to reimburse Buckeye for any reasonable documented expenses and costs incurred in connection with Buckeye’s efforts to arrange a potential disposition of the Specified Business if requested by the Purchaser as necessary in order to satisfy the conditions of the Merger. Other than as required by the provisions described above, all costs and expenses incurred by the parties will be paid by the party incurring such costs and expenses.

Letter Agreements

In connection with the Merger Agreement, each of the Supporting Stockholders entered into a Support Agreement. Pursuant to these Support Agreements, the Supporting Stockholders collectively agreed to vote in favor of the Merger Agreement approximately 1.4 million Shares, or approximately 3.6% of the Shares outstanding on April 23, 2013, the date of the Support Agreements.

Each of the Supporting Stockholders agreed, while the Support Agreement is effective, to appear, or otherwise cause any Shares he or she holds to be counted as present for purposes of calculating a quorum, at any meeting of the stockholders of Buckeye and to vote, or cause to be voted, all Shares he or she holds in favor of the adoption of the Merger Agreement and any other matters necessary for the completion of the transactions contemplated by the Merger Agreement at any meeting of the stockholders of Buckeye that is reasonably requested by Georgia-Pacific or the Purchaser.

In the Support Agreements, each of the Supporting Stockholders represented and warranted that he or she:

 

   

is the sole record and beneficial owner, and has good and marketable title to, the Shares he or she holds, free and clear of all adverse claims, liens, pledges, options, proxies, voting trusts or agreements, rights or arrangements or any other encumbrances on title, transfer or exercise of any of his or her rights as a holder of such Shares (other than an aggregate total of 301,528 shares that have been pledged as security by two of the Supporting Stockholders); and

 

   

has the sole right to vote, sole power of disposition and sole power to agree to all of the matters set forth in the applicable Support Agreement, in each case, except arising from the transfer restrictions under securities laws of any jurisdiction.

 

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Nothing in the Support Agreements limits the Supporting Stockholders from fulfilling his or her duties and obligations as an officer or director of Buckeye.

The Support Agreements, and all rights and obligations of Georgia-Pacific, the Purchaser and the Supporting Stockholders under the Support Agreements, except for certain customary provisions that survive termination, will terminate on the earliest of:

 

   

the date the Merger Agreement is terminated in accordance with the terms of the Merger Agreement;

 

   

the Effective Time; and

 

   

the date of any modification to the Merger Agreement that reduces the amount or changes the form of the consideration currently contemplated in the Merger Agreement to be paid in the Merger to the Supporting Stockholders.

Confidentiality Agreement

Georgia-Pacific and Buckeye entered into the Confidentiality Agreement in connection with a potential negotiated transaction that resulted in the Merger Agreement. Pursuant to the Confidentiality Agreement, subject to certain customary exceptions, Georgia-Pacific agreed to keep confidential all non-public information furnished by Buckeye or its representatives to Georgia-Pacific or its representatives, and all analyses or documents prepared by Georgia-Pacific or its representatives based upon such non-public information. Georgia-Pacific also agreed that the non-public information furnished to Georgia-Pacific will be used solely for the purpose of evaluating the potential negotiated transaction that resulted in the Merger Agreement. If requested by Buckeye, Georgia-Pacific and its representatives are required, subject to certain customary exceptions, to destroy or erase the non-public information furnished to Georgia-Pacific and its representatives under the Confidentiality Agreement and to destroy or erase any analyses or documents prepared by Georgia-Pacific or its representatives based upon such non-public information. In addition, Georgia-Pacific and Buckeye agreed, subject to certain customary exceptions, to keep confidential the fact that discussions of a potential negotiated transaction were taking place and the existence of the Confidentiality Agreement.

The Confidentiality Agreement includes a standstill provision. Pursuant to this provision, Georgia-Pacific agreed that, among other things and for a period of 18 months after Buckeye last provided non-public information to Georgia-Pacific or its representatives, Georgia-Pacific will not, without Buckeye’s prior consent:

 

   

make any public announcement, proposal or offer with respect to (i) any extraordinary transaction involving Buckeye or its subsidiaries, (ii) any acquisition of Buckeye’s or its subsidiaries outstanding debt or equity or related securities, (iii) seeking representation on Buckeye’s board of directors or to otherwise control or influence the management, board of directors or policies of Buckeye, or (iv) requesting any waiver termination or amendment of the Confidentiality Agreement;

 

   

make or participate in any solicitation of proxies with respect to voting securities of Buckeye or seek to advise or influence any person with respect to voting such securities;

 

   

encourage any third party, or enter into any discussions or agreement with any third party, to do any of the items in the two immediately preceding bullet points;

 

   

take any action that would likely require Buckeye or its affiliates to make a public announcement regarding the items in the first two bullet points of this paragraph; or

 

   

acquire or propose or agree to acquire any loans, debt or equity securities or assets of Buckeye or its subsidiaries.

Upon the Purchaser’s receipt of a notice of Superior Proposal that includes an aggregate purchase price per share in excess of 110% of the per Share Merger Consideration, the standstill restrictions set forth above shall terminate and cease to apply to Georgia-Pacific and the Purchaser.

 

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The Confidentiality Agreement includes a no solicitation and no hire provision. Pursuant to this provision, Georgia-Pacific agreed that, among other things and for a period of 18 months from the date of the Confidentiality Agreement, neither Georgia-Pacific nor any of its controlled affiliates would solicit for employment or hire any employee of Buckeye or its subsidiaries with whom Georgia-Pacific initially came into contact in connection with the potential negotiated transaction that resulted in the Offer (“Subject Employees”). The no solicitation and no hire provision does not prohibit Georgia-Pacific or its controlled affiliates from:

 

   

making any general solicitation for employment that is not specifically directed at the Subject Employees;

 

   

soliciting any Subject Employee who left the employment of Buckeye or its subsidiaries at least six months prior to the solicitation;

 

   

hiring any person that is referred by a third party agency through a general search not targeted at employees of Buckeye or its subsidiaries; or

 

   

hiring any person who directly submits an application for employment to Georgia-Pacific or its controlled affiliates without any solicitation effort by Georgia-Pacific or its controlled affiliates in violation of the no solicitation and no hire provision.

Availability of Specific Performance

Pursuant to the terms of the Merger Agreement, the parties to the Merger Agreement have agreed that the parties shall be entitled to injunctive relief to prevent breaches of the Merger Agreement and to specific performance of the terms of the Merger Agreement without necessity of posting bond or other security.

 

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PROPOSAL 2

AUTHORITY TO ADJOURN THE SPECIAL MEETING

The Adjournment Proposal

If at the Special Meeting of stockholders, our Board determines it is necessary or appropriate to adjourn the Special Meeting, we intend to move to adjourn the Special Meeting. For example, in order to enable our Board to solicit additional votes in respect of such proposal, our Board may make such a determination if the number of Shares represented and voting in favor of the proposal to adopt the Merger Agreement at the Special Meeting is insufficient to adopt that proposal under our certificate of incorporation and the DGCL. If our Board determines that it is necessary or appropriate, we will ask our stockholders to vote only upon the proposal to adjourn the Special Meeting, and not the proposal to adopt the Merger Agreement.

In this proposal, we are asking you to authorize the holder of any proxy solicited by our Board to vote in favor of the proposal to adjourn the Special Meeting to another time and place. If the stockholders approve the proposal to adjourn the Special Meeting, we could adjourn the Special Meeting and any adjourned session of the Special Meeting and use the additional time to solicit additional votes, including the solicitation of votes from stockholders that have previously voted. Among other things, approval of the proposal to adjourn the Special Meeting could mean that, even if we had received proxies representing a sufficient number of votes against the proposal to adopt the Merger Agreement to defeat that proposal, we could adjourn the Special Meeting without a vote on the Merger Agreement and seek to convince the holders of those shares to change their votes to votes in favor of the proposal to adopt the Merger Agreement.

Board of Directors Recommendation

Our Board of Directors unanimously recommends that you vote “FOR” the proposal to adjourn the Special Meeting, if necessary or appropriate, including to solicit additional votes in favor of the proposal to adopt the Merger Agreement.

 

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PROPOSAL 3

ADVISORY VOTE REGARDING MERGER-RELATED COMPENSATION

Advisory Vote Regarding Merger-Related Compensation

The information set forth in the table below is intended to comply with Item 402(t) of Regulation S-K under the Exchange Act, which requires disclosure of information about “golden parachute compensation” for each “named executive officer” of Buckeye that is based on or otherwise relates to the Merger (the “Merger-related compensation”). Further details regarding the following forms of Merger-related compensation payable in connection with the Merger can be found at “The Merger—Interests of Certain Persons in the Merger,” and the tables below.

Section 951 of the Dodd-Frank Act and Rule 14a-21(c) under the Exchange Act require that we seek a non-binding advisory vote from our stockholders to approve the Merger-related compensation payable to our named executive officers. We are asking our stockholders to approve, on an advisory basis, the Merger-related compensation payable to our named executive officers.

Potential Payments in Connection with a Change in Control

The following table sets forth the amount of payments and benefits that may be paid or become payable to each named executive officer of Buckeye in connection with the Merger pursuant to the Change in Control Agreements, the Cash Bonus Letter Agreements and the equity arrangements described above, assuming (i) the consummation of the Merger occurred on July 31, 2013, (ii) the price per share of common stock of Buckeye is $37.50 and (iii) for purposes of estimating severance benefits, the service of the named executive officer also terminated on such date either by such executive for “good reason” or by Buckeye without “cause.”

Golden Parachute Compensation

 

Named Executive Officer

   Cash
($)(1)
     Equity
($)(2)
    Perquisites/
Benefits ($)(3)
     Other
($)(4)
     Total ($)*  

John B. Crowe

     4,403,250         5,444,014 (5)      48,774         695,250         10,591,288   

Chairman and Chief Executive Officer

             

Steven G. Dean

     1,306,500         812,266 (6)      45,482         175,500         2,339,748   

Executive Vice President and Chief Financial
Officer

             

Paul N. Horne

     1,143,750         1,423,418 (7)      45,482         108,000         2,720,650   

Senior Vice President, Product and Market
Development

             

Douglas L. Dowdell,

     1,256,250         1,100,639 (8)      45,482         168,750         2,571,121   

Executive Vice President, Specialty Fibers

             

Kristopher J. Matula,

     —           87,675 (9)            87,675   

Former President and Chief Operating Officer

             

 

* The total amount is an estimate based on multiple assumptions that may or may not occur. The actual total amount received by an officer may differ in material respects from the amount reflected in this column depending on future circumstances. Additionally, amounts in the table are not reflective of any reduction that may be imposed on the payments due to a named executive officer upon the application of the modified 280G cut-back that is provided under each Change in Control Agreement.
(1) Represents (X) the sum of (i) the named executive officer’s highest annual base salary received during the three years preceding July 1, 2013 plus (ii) the named executive officer’s target bonus for 2013 multiplied by (Y) the applicable multiplier under the Change in Control Agreement (3 years in the case of Mr. Crowe and 2 years in the case of the other executive officers). This would constitute a “double trigger” benefit as it is contingent on a qualifying termination of employment within two years following the change in control.

 

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(2) The value of vesting acceleration has been calculated in accordance with SEC rules by multiplying the number of unvested in-the-money options or restricted stock units by (A) the excess of the per Share Merger Consideration of $37.50 over the option exercise price (in the case of options) or (B) the per Share Merger Consideration of $37.50 (in the case of restricted stock). This would constitute a “single trigger” benefit because no termination of employment is required.
(3) The value of medical benefits is estimated based on the annual premium each executive officer would be required to pay for continuing medical coverage under the provisions of our medical plan required by the Consolidated Omnibus Budget Reconciliation Act (COBRA) multiplied by the number of years such benefit would be provided under the applicable Change in Control Agreement (3 years in the case of Mr. Crowe and 2 years in the case of the other executive officers). This would constitute a “double trigger” benefit as it is contingent on a qualifying termination of employment within two years following the Merger.
(4) The value for each named executive officer in the other column represents the retention bonus that such named executive officer would receive upon the Effective Time. This would constitute a “single trigger” benefit because no termination of employment is required for the executive to receive the bonus. Please note, if the executive were to terminate employment prior to the Effective Time for Cause or without Good Reason, the retention bonus would not be paid.
(5) The value in this column represents the value of accelerating the unvested in-the-money stock options held by Mr. Crowe totaling $166,276 and the value of accelerating the unvested restricted stock held by Mr. Crowe totaling $5,277,738, which are “single trigger” benefits because no termination of employment is required.
(6) The value in this column represents the value of accelerating the unvested in-the-money stock options held by Mr. Dean totaling $37,128 and the value of accelerating the unvested restricted stock held by Mr. Dean totaling $775,138, which are “single trigger” benefits because no termination of employment is required.
(7) The value in this column represents the value of accelerating the unvested in-the-money stock options held by Mr. Dowdell totaling $35,214 and the value of accelerating the unvested restricted stock held by Mr. Dowdell totaling $1,065,425, which are “single trigger” benefits because no termination of employment is required.
(8) The value in this column represents the value of accelerating the unvested in-the-money stock options held by Mr. Horne totaling $28,581 and the value of accelerating the unvested restricted stock held by Mr. Horne totaling $1,394,837, which are “single trigger” benefits because no termination of employment is required.
(9) Mr. Matula resigned from his positions as our President and Chief Operating Officer and as a member of our Board effective August 7, 2012. Although Mr. Matula received severance payments in connection with his termination, as described above, these payments were not made to him in connection with a change in control. The value in this column represents the value of accelerating the unvested restricted stock held by Mr. Matula totaling $87,675, which is a “single trigger” benefit because no termination of employment is required.

Approval of the non-binding proposal to approve the Merger-related, or “golden parachute,” compensation payable to our named executive officers requires the affirmative vote of the holders of a majority in voting power of the Shares present in person or represented by proxy and entitled to vote on the subject matter vote in favor of the proposal.

Please see “Merger Related Compensation Payments” for a more detailed listing of the payments and benefits each of the named executive officers would receive upon termination of employment following the Merger and also for the payments and benefits other executive officers (who are not named executive officers) would receive upon a termination of employment following the Merger.

 

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Board of Directors Recommendation

The Board unanimously recommends that the stockholders of Buckeye approve the following resolution:

“RESOLVED, that the stockholders of Buckeye approve, on an advisory (non-binding) basis, the compensation that will or may become payable by Buckeye to its named executive officers in connection with the Merger, as disclosed pursuant to Item 402(t) of Regulation S-K in the Merger-Related Compensation for Named Executive Officers table and the related narrative disclosures.”

Approval of this proposal is not a condition to the completion of the Merger. The vote with respect to this proposal is advisory only and will not be binding on us or Georgia-Pacific. Accordingly, regardless of the outcome of the non-binding advisory vote, our named executive officers will be eligible to receive or retain the various amounts of compensation payable to them in connection with the Merger (subject to the completion of the Merger, if required by the terms of such compensation).

 

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MARKET PRICE OF SHARES OF BUCKEYE COMMON STOCK AND DIVIDEND INFORMATION

The Shares are traded and quoted on the NYSE, under the symbol “BKI.” The following table sets forth, for the periods indicated, the high and low sales prices per Share for the two most recent fiscal years as reported on the NYSE and the quarterly dividends.

 

Period

   Closing Sales Price      Dividends
Declared
 
     High      Low         

Fiscal year ended June 30, 2011

        

First quarter

   $ 14.99       $ 9.32       $ 0.04   

Second quarter

   $ 23.25       $ 14.20       $ 0.04   

Third quarter

   $ 28.50       $ 19.94       $ 0.05   

Fourth quarter

   $ 28.62       $ 22.45       $ 0.05   

Fiscal year ended June 30, 2012

        

First quarter

   $ 29.24       $ 23.80       $ 0.06   

Second quarter

   $ 34.22       $ 24.00       $ 0.06   

Third quarter

   $ 37.40       $ 32.60       $ 0.07   

Fourth quarter

   $ 34.00       $ 26.41       $ 0.08   

Fiscal year ending June 30, 2013

        

First quarter

   $ 32.62       $ 28.33       $ 0.08   

Second quarter

   $ 32.19       $ 23.76       $ 0.09   

Third quarter

   $ 31.36       $ 26.84       $ 0.09   

Fourth quarter

   $ 37.86       $ 28.66       $ 0.09   

Fiscal year ending June 30, 2014

        

First quarter (through July 5, 2013)

   $ 37.05       $ 36.96         —     

On April 23, 2013, the last full trading day before public announcement of the execution of the Merger Agreement, the closing price reported on the NYSE was $29.93 per Share. On July 5, 2013, the latest practicable trading day before the printing of this proxy statement, the Shares closed at $37.02. Stockholders are urged to obtain a current market quotation for the Shares. You are encouraged to obtain current market quotations for the Shares in connection with voting your Shares.

 

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SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT

The following table shows the number of Shares that were beneficially owned as of July 8, 2013 by: (A) each person known to own more than 5% of Buckeye’s shares; (B) each director of Buckeye and each of the named executive officers described in connection with Proposal 3; and (C) all directors and executive officers of Buckeye as a group. The address for each of Buckeye’s directors and executive officers is Buckeye Technologies Inc. P.O. Box 80407, 1001 Tillman Street, Memphis Tennessee 38108-0407, Attention Corporate Secretary.

 

Name   

Amount and Nature of Beneficial

Ownership (1)

     Percent of Class (1)  

(A)

 

NewSouth Capital Management, Inc. (2)

999 S. Shady Grove Rd., Suite 501

Memphis, Tennessee 38120

     3,075,644         7.8
 

BlackRock, Inc. (3)

40 East 52nd Street

New York, New York 10022

     2,947,065         7.5
 

The Vanguard Group, Inc. (4)

100 Vanguard Boulevard

Malvern, Pennsylvania 19355

     2,692,003         6.8
 

Dimensional Fund Advisors LP (5)

Palisades West, Building One

6300 Bee Cave Road

Austin, Texas 78746

     2,151,998         5.4

(B)

  Shannon A. Brown (6)      3,290         *   
  George W. Bryan (7)      42,818         *   
  R. Howard Cannon (8)      287,448         *   
  Red Cavaney (9)      66,988.386         *   
  John B. Crowe (10)      519,786         1.3
  Steven G. Dean (11)      122,144         *   
  Douglas L. Dowdell (12)      78,587         *   
  David B. Ferraro (13)      159,996         *   
  Katherine Buckman Gibson (14)      31,099         *   
  Lewis E. Holland (15)      45,318         *   
  Paul N. Horne (16)      75,011         *   
  Kristopher J. Matula (17)      14,095         *   
  Virginia B. Wetherell (18)      16,868         *   

(C)

  All Directors and Executive Officers as a group (17 persons) (19)      1,805,049         4.6

 

* Less than 1% of the issued and outstanding Shares.
(1) Unless otherwise indicated, beneficial ownership consists of sole voting and investing power based on 39,528,015 Shares issued and outstanding as of July 8, 2013. Options to purchase an aggregate of 599,743 shares will vest no later than the Effective Time. Such shares are deemed to be outstanding for the purpose of computing the percentage of outstanding Shares owned by each person to whom a portion of such options relate but are not deemed to be outstanding for the purpose of computing the percentage owned by any other person.
(2) NewSouth Capital Management, Inc. filed a Schedule 13G/A with the SEC on February 8, 2013, reporting that it had the sole power to dispose of or direct the disposition of 3,075,644 Shares, which constitutes more than 5% of the Shares.

 

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(3) BlackRock, Inc., filed a Schedule 13G/A with the SEC on February 8, 2013, reporting that it had the sole power to dispose of or direct the disposition of and the sole power to vote or direct the vote of 2,947,065 Shares, which constitutes more than 5% of the Shares.
(4) The Vanguard Group, Inc. filed a Schedule 13G/A with the SEC on February 11, 2013, reporting that it had the sole power to dispose of or direct the disposition of 2,636,088 shares and the shared power to dispose of or direct the disposition of 55,915 Shares beneficially owned by its wholly-owned subsidiary, Vanguard Fiduciary Trust Company, which constitutes more than 5% of the Shares.
(5) Dimensional Fund Advisors LP filed a Schedule 13G/A with the SEC on February 11, 2013, reporting that it had the sole power to dispose of or direct the disposition of 2,151,998 Shares, which constitutes more than 5% of the Shares.
(6) Includes 3,290 Restricted Shares issued pursuant to the 2007 Omnibus Plan.
(7) Includes 10,000 Shares issuable upon the exercise of options granted under our stock plan for non-employee directors; and 3,589 shares of restricted stock issued pursuant to our 2007 Omnibus Plan.
(8) Includes 10,000 Shares issuable upon the exercise of options granted under our stock option plan for non-employee directors; and 16,868 Restricted Shares issued pursuant to our 2007 Omnibus Plan. 277,448 Shares are pledged as security.
(9) Includes 20,000 Shares issuable upon the exercise of options granted under our stock option plan for non-employee directors; and 3,589 Restricted Shares issued pursuant to our 2007 Omnibus Plan.
(10) Includes 25,687 Shares held in our 401(k) and retirement plans; 83,110 Restricted Shares issued pursuant to our Restricted Stock Plan; 85,912 performance shares issued under our 2007 Omnibus Plan; 114,303 Shares issuable upon the exercise of options; and 30,793 Restricted Shares issued pursuant to our 2007 Omnibus Plan.
(11) Includes 7,257 Shares held in our 401(k) and retirement plans; 7,770 Restricted Shares issued pursuant to our Restricted Stock Plan; 18,337 performance shares issued under our 2007 Omnibus Plan; 53,279 Shares issuable upon the exercise of options; and 6,567 Restricted Shares issued pursuant to the 2007 Omnibus Plan.
(12) Includes 28,774 Shares held in our 401(k) and retirement plans; 16,178 Restricted Shares issued pursuant to our Restricted Stock Plan; 16,617 performance shares issued under our 2007 Omnibus Plan; 10,995 Shares issuable upon the exercise of options; 6,023 Restricted Shares issued pursuant to our 2007 Omnibus Plan.
(13) Includes 3,589 Restricted Shares issued pursuant to our 2007 Omnibus Plan. 156,996 Shares are pledged as security.
(14) Includes 10,000 Shares issuable upon the exercise of options granted under our stock plan for non-employee directors; 3,589 Restricted Shares issued pursuant to our 2007 Omnibus Plan.
(15) Includes 3,589 Restricted Shares issued pursuant to our 2007 Omnibus Plan.
(16) Includes 1,849 Shares held in our 401(k) and retirement plans; 27,308 Restricted Shares issued pursuant to our Restricted Stock Plan; 16,177 performance shares issued under our 2007 Omnibus Plan; and 10,489 Shares issuable upon the exercise of options; and 5,721 Restricted Shares issued pursuant to our 2007 Omnibus Plan.
(17) Consists of 14,095 performance shares issued under our 2007 Omnibus Plan.
(18) Includes 3,589 Restricted Shares issued pursuant to our 2007 Omnibus Plan.
(19) Includes an aggregate of 83,028 Shares held in our 401(k) and retirement plans; 189,248 Restricted Shares issued pursuant to our Restricted Stock Plan; 186,897 performance shares issued under our 2007 Omnibus Plan; 355,762 Shares issuable upon exercise of options granted under the stock option plan for non-employee directors and our other stock option plans; and 95,322 Restricted Shares issued pursuant to our 2007 Omnibus Plan.

 

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APPRAISAL RIGHTS

Under Section 262 of the DGCL, if you do not wish to accept the per Share Merger Consideration provided for in the Merger Agreement and you do not vote for the adoption of the Merger Agreement, you have certain rights under Section 262 of the DGCL to demand appraisal of your Shares and to receive payment in cash for the fair value of your Shares in lieu of the $37.50 per Share to be paid in the Merger, exclusive of any element of value arising from the accomplishment or expectation of the Merger, as determined by the Delaware Court of Chancery, together with interest, if any, to be paid upon the amount determined to be fair value. The “fair value” of your Shares as determined by the Delaware Court of Chancery may be more or less than, or the same as, the $37.50 per Share that you are otherwise entitled to receive under the terms of the Merger Agreement. These rights are known as appraisal rights. Buckeye’s stockholders who elect to exercise appraisal rights must not vote in favor of the proposal to adopt the Merger Agreement and must comply with the provisions of Section 262 of the DCGL, in order to perfect their rights. Strict compliance with the statutory procedures in Section 262 is required. Failure to follow precisely any of the statutory requirements will result in the loss of your appraisal rights.

This section is intended as a brief summary of the material provisions of the Delaware statutory procedures that a stockholder must follow in order to seek and perfect appraisal rights. This summary, however, is not a complete statement of all applicable requirements, and it is qualified in its entirety by reference to Section 262 of the DGCL, the full text of which appears in Annex C to this proxy statement. The following summary does not constitute any legal or other advice, nor does it constitute a recommendation that stockholders exercise their appraisal rights under Section 262.

Section 262 requires that where a merger agreement is to be submitted for adoption at a meeting of stockholders, the stockholders be notified that appraisal rights will be available not less than 20 days before the meeting to vote on the merger. A copy of Section 262 must be included with such notice. This proxy statement constitutes Buckeye’s notice to our stockholders that appraisal rights are available in connection with the Merger, in compliance with the requirements of Section 262. If you wish to consider exercising your appraisal rights, you should carefully review the text of Section 262 contained in Annex C. Failure to comply timely and properly with the requirements of Section 262 will result in the loss of your appraisal rights under the DGCL.

Stockholders of record who desire to exercise their appraisal rights must properly perfect their appraisal rights and fully satisfy all of the following conditions. A written demand for appraisal of Shares must be delivered to the Secretary of Buckeye before the taking of the vote on the adoption of the Merger Agreement. This written demand for appraisal of Shares must be in addition to and separate from any proxy or vote abstaining from or against the adoption of the Merger Agreement, and voting against, abstaining from voting or failing to vote on the Merger Agreement will not constitute a demand for appraisal within the meaning of Section 262 of the DGCL. In order to exercise appraisal rights, a stockholder must not vote in favor of the Merger, but a failure to vote against the Merger will not constitute a waiver of your appraisal rights. Any stockholder seeking appraisal rights must hold the Shares for which appraisal is sought on the date of the making of the demand, continuously hold such shares through the Effective Time and otherwise comply with the provisions of Section 262 of the DGCL.

Within 120 days after the Effective Time, either Buckeye or any stockholder who has complied with the required conditions of Section 262 of the DGCL and who is otherwise entitled to appraisal rights may file a petition in the Delaware Court of Chancery demanding a determination of the fair value of the Shares of the dissenting stockholders. If a petition for an appraisal is timely filed, after a hearing on such petition, the Delaware Court of Chancery will determine which stockholders are entitled to appraisal rights and thereafter will appraise the Shares owned by such stockholders, determining the fair value of such shares, exclusive of any element of value arising from the accomplishment or expectation of the Merger, together with interest, if any, upon the amount determined to be the fair value. Unless the Delaware Court of Chancery in its discretion

 

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determines otherwise for good cause shown, interest from the Effective Time through the date of payment of the judgment will accrue at 5% over the Federal Reserve discount rate (including any surcharge) as established from time to time during such period.

Stockholders who consider seeking appraisal should have in mind that the fair value of their Shares determined under Section 262 of the DGCL could be more than, the same as or less than the per Share Merger Consideration, if they do seek appraisal of their Shares, and that opinions of investment banking firms as to the fairness from a financial point of view of the consideration payable in a transaction are not opinions as to fair value under Section 262 of the DGCL. Buckeye expects that Georgia-Pacific would cause the Surviving Corporation to argue in any appraisal proceeding that, for purposes thereof, the “fair value” of the Shares is less than that paid in the Merger. The cost of the appraisal proceeding may be determined by the Delaware Court of Chancery and imposed upon the parties as the Delaware Court of Chancery deems equitable under the circumstances. Upon application of a dissenting stockholder, the Delaware Court of Chancery may order that all or a portion of the expenses incurred by any dissenting stockholder in connection with the appraisal proceeding, including, without limitation, reasonable attorneys’ fees and the fees and expenses of experts, be charged pro rata against the value of all Shares entitled to appraisal. In the absence of such a determination or assessment, each party bears its own expenses.

Any stockholder who has duly demanded appraisal in compliance with Section 262 of the DGCL will not, after the Effective Time, be entitled to vote for any purpose the Shares subject to such demand or to receive payment of dividends or other distributions on such shares, except for dividends or other distributions payable to stockholders of record at a date prior to the Effective Time.

At any time within 60 days after the Effective Time, any former holder of Shares will have the right to withdraw his or her demand for appraisal and to accept the per Share Merger Consideration for his or her Shares. After this period, such holder may withdraw his or her demand for appraisal only with the consent of Buckeye as the Surviving Corporation. If no petition for appraisal is filed with the Delaware Court of Chancery within 120 days after the Effective Time, each stockholder’s rights to appraisal will cease. Inasmuch as Buckeye has no obligation to file such a petition, and Buckeye understands Georgia-Pacific has no present intention to cause or permit the Surviving Corporation to do so, any stockholder who desires such a petition to be filed is advised to file it on a timely basis. However, no petition timely filed in the Delaware Court of Chancery demanding appraisal will be dismissed as to any stockholder without the approval of the Delaware Court of Chancery, and such approval may be conditioned upon such terms as the Delaware Court of Chancery deems just. Failure to take any required step in connection with the exercise of appraisal rights may result in the termination or waiver of such rights.

The preservation and exercise of appraisal rights requires strict adherence to the applicable provisions of the DGCL. Failure to fully and precisely follow the steps required by Section 262 of the DGCL for the perfection of appraisal rights will result in the loss of those rights. The foregoing summary of the rights of dissenting stockholders under the DGCL is not a complete statement of the procedures to be followed by stockholders desiring to exercise any appraisal rights available under the DGCL and is qualified in its entirety by reference to Section 262 of the DGCL. Any stockholder considering demanding appraisal is advised to consult legal counsel. Appraisal rights will not be available unless and until the Merger (or a similar merger) is consummated.

 

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