VOTING AGREEMENT
THIS VOTING AGREEMENT is entered into as of October 18, 2000, by and
between CASCADE CORPORATION, an Oregon corporation ("Cascade"), and X. X.
Xxxxxxxx Holdings Ltd. ("Shareholder").
RECITALS
A. Cascade Acquisition Corp., a Delaware corporation ("CAC-I"), Cascade
- II Acquisition Corp., a Delaware corporation ("CAC-II," and together with
CAC-I, the "Parent"), CAS Acquisition Corp., an Oregon corporation and an
indirect wholly-owned subsidiary of Parent ("Acquisition Co."), and Cascade are
entering into an Agreement and Plan of Merger of even date herewith (the "Merger
Agreement") which provides (subject to the conditions set forth therein) for the
merger of Acquisition Co. with and into Cascade (the "Merger").
B. In order to induce Cascade to enter into the Merger Agreement,
Shareholder is entering into this Voting Agreement.
AGREEMENT
The parties to this Voting Agreement, intending to be legally bound,
agree as follows:
ARTICLE 1
DEFINITIONS
For purposes of this Voting Agreement:
1.1 "Affiliate" means a Person that directly, or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, the Person specified.
1.2 "Exchangeable Shares" means the exchangeable shares of
Cascade (Canada) Ltd. (formerly Cascade (Canada) Holdings Inc.) issued pursuant
to the Share Purchase Agreement dated March 11, 1997 among Couphar Ltd.,
Balyrobe Ltd., 879185 Ontario Inc., 568745 Ontario, Inc. Xxxxx X. Xxxxxxx (in
trust), Penfund Partners and Company, Bantor Company, X.X. Xxxxxxxx and Cascade
(Canada) Holdings Inc. and Cascade.
1.3 "Expiration Date" shall mean the earlier of (i) the date
upon which the Merger Agreement is validly terminated or (ii) the date upon
which the Merger becomes effective.
1.4 Shareholder shall be deemed to "Own" or to have acquired
"Ownership" of a security if Shareholder: (i) is the record owner of such
security; or (ii) is the "beneficial owner" (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934) of such security.
1.5 "Person" shall mean any (i) individual, (ii) corporation,
limited liability company, partnership or other entity or (iii) governmental
authority.
1.6 "Subject Securities" shall mean: (i) the Exchangeable
Shares and all securities of Cascade (including all shares of Cascade capital
stock and all options, warrants, and other rights to acquire shares of Cascade
capital stock) Owned by Shareholder as of the date of this Agreement; and (ii)
all additional securities of Cascade (including all additional shares of Cascade
capital stock and all additional options, warrants, convertible notes and other
rights to acquire shares of Cascade capital stock) of which Shareholder acquires
Ownership during the period from the date of this Agreement through the
Expiration Date.
1.7 A Person shall be deemed to have a effected a "Transfer"
of a security if such Person directly or indirectly: (i) sells, pledges,
encumbers, grants an option with respect to, transfers or disposes of such
security or any interest in such security; or (ii) enters into an agreement or
commitment contemplating the possible sale of, pledge of, encumbrance of, grant
of an option with respect to, transfer of or disposition of such security or any
interest therein.
ARTICLE 2
TRANSFER OF SUBJECT SECURITIES
2.1. RESTRICTION ON TRANSFER. Shareholder agrees that, during the
period from the date of this Voting Agreement through the Expiration Date,
Shareholder shall not cause or permit any Transfer of any of the Subject
Securities to be effected, other than to an Affiliate of Shareholder (or to the
Parent or Acquisition Co.) who shall have: (a) executed a counterpart of this
Voting Agreement and a proxy in the form attached hereto as Exhibit A; and (b)
agreed to hold such Subject Securities (or interest in such Subject Securities)
subject to all of the terms and provisions of this Voting Agreement.
2.2 TRANSFER OF VOTING RIGHTS. Shareholder agrees that, during the
period from the date of this Voting Agreement through the Expiration Date,
except as provided in this Voting Agreement, Shareholder shall ensure that: (a)
none of the Subject Securities is deposited into a voting trust; and (b) no
proxy is granted, and no voting agreement or similar agreement is entered into,
with respect to any of the Subject Securities.
ARTICLE 3
VOTING OF SHARES
3.1 VOTING AGREEMENT. Shareholder agrees that, during the period from
the date of this Voting Agreement through the Expiration Date, at any meeting of
shareholders of Cascade, however called, and in any written action by consent of
shareholders of Cascade, Shareholder shall (unless otherwise directed in writing
by Cascade) cause the Exchangeable Shares and all outstanding shares of Cascade
capital stock that are Owned by Shareholder as of the record date fixed for such
meeting or written consent to be voted in favor of the approval and adoption of
the Merger Agreement and the approval of the Merger on the terms and subject to
the conditions set forth therein, and in favor of each of the other actions
contemplated by the Merger Agreement. Shareholder shall not enter into any
agreement or understanding with any
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Person prior to the earlier to occur of the valid termination of the Merger
Agreement or the effective time of the Merger to vote or give instructions in
any manner inconsistent with the preceding sentence.
3.2 PROXY, LETTER OF INSTRUCTIONS, ETC. Contemporaneously with the
execution of this Voting Agreement, Shareholder shall deliver to Cascade an
executed proxy, letter of instructions or other voting instrument reasonably
acceptable to Cascade, which shall be irrevocable to the fullest extent
permitted by law, to give effect to this Voting Agreement.
3.3 FURTHER ASSURANCES. Shareholder shall perform such further acts and
execute such further documents and instruments as may reasonably be required to
vest in Cascade the power to carry out and give effect to the provisions of this
Voting Agreement.
ARTICLE 4
WAIVER OF APPRAISAL RIGHTS
Shareholder hereby irrevocably and unconditionally waives, and agrees
to cause to be waived and to prevent the exercise of, any rights of appraisal,
any dissenters' rights and any similar rights relating to the Merger or any
related transaction that Shareholder or any other Person may have by virtue of
the ownership of the Exchangeable Shares and any outstanding shares of Cascade
capital stock Owned by Shareholder.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER
Shareholder hereby represents and warrants to Cascade as follows:
5.1 AUTHORIZATION, ETC. Shareholder has the absolute and unrestricted
right, power, authority and capacity to execute and deliver this Voting
Agreement and the Proxy and to perform his obligations hereunder and thereunder.
This Voting Agreement and the Proxy have been duly executed and delivered by
Shareholder and constitute legal, valid and binding obligations of Shareholder,
enforceable against Shareholder in accordance with their terms, subject to (a)
laws of general application relating to bankruptcy, insolvency and the relief of
debtors and (b) rules of law governing specific performance, injunctive relief
and other equitable remedies.
5.2 NO CONFLICTS OR CONSENTS. The execution and delivery of this Voting
Agreement and the Proxy by Shareholder do not, and the performance of this
Voting Agreement and the Proxy by Shareholder will not: (a) conflict with or
violate any law, rule, regulation, order, decree or judgment applicable to
Shareholder or by which he or any of his properties is or may be bound or
affected; or (b) result in or constitute (with or without notice or lapse of
time) any breach of or default under, or give to any other Person (with or
without notice or lapse of time) any right of termination, amendment,
acceleration or cancellation of, or result (with or without notice or lapse of
time) in the creation of any encumbrance or restriction on any of the Subject
Securities pursuant to any contract (other than this Voting Agreement and the
Proxy) to which Shareholder is a party or by which Shareholder or any of his
Affiliates or properties is or
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may be bound or affected. The execution and delivery of this Voting Agreement
and the Proxy by Shareholder do not, and the performance of this Voting
Agreement and the Proxy by Shareholder will not, require any consent or
approval of any Person.
5.3 TITLE TO SECURITIES. As of the date of this Voting Agreement,
Shareholder holds (free and clear of any encumbrances or restrictions): (a) the
number of Exchangeable Shares set forth under the heading "Exchangeable Shares"
on the signature page hereof; (b) the number of outstanding shares of Cascade
capital stock set forth under the heading "Shares Held of Record" on the
signature page hereof; (c) the options, warrants and other rights to acquire
shares of Cascade capital stock set forth under the heading "Options and Other
Rights" on the signature page hereof; and (d) the additional securities of
Cascade set forth under the heading "Additional Securities Beneficially Owned"
on the signature page hereof; and Shareholder does not directly or indirectly
Own any Exchangeable Shares or any shares of capital stock or other securities
of Cascade, or any option, warrant or other right to acquire (by purchase,
conversion or otherwise) any shares of capital stock or other securities of
Cascade, other than the shares and options, warrants and other rights set forth
on the signature page hereof.
ARTICLE 6
COVENANT OF SHAREHOLDER
From time to time and without additional consideration, Shareholder
shall execute and deliver, or cause to be executed and delivered, such
additional transfers, assignments, endorsements, proxies, consents and other
instruments, and shall take such further actions, as Cascade may reasonably
request for the purpose of carrying out and furthering the intent of this Voting
Agreement.
ARTICLE 7
MISCELLANEOUS
7.1 NOTICES. Any notice or other communication required or permitted to
be delivered to either party under this Voting Agreement shall be in writing and
shall be deemed properly delivered, given and received when delivered (by hand,
by registered mail, by courier or express delivery service or by facsimile) to
the address or facsimile telephone number set forth beneath the name of such
party below (or to such other address or facsimile telephone number as such
party shall have specified in a written notice given to the other party):
if to Shareholder:
at the address set forth below Shareholder's signature on the
signature page hereof
with copies to:
Xxxx & Berlis
BCE Place
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Box 754
0000-000 Xxx Xxxxxx
Xxxxxxx, Xxxxxxx
X0X 0X0
Facsimile: (000) 000-0000
Attention: Xxxx Xxxxxx, Esq.
and
Torys
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxx, Esq.
If to Cascade, to it at:
Cascade Corporation
0000 XX 000xx Xxxxxx
Xxxxxxxx, Xxxxxx 00000-0000
Facsimile: (000) 000-0000
Attention: Chief Executive Officer
with copies to:
Xxxxxx Xxxx LLP
000 XX 0xx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
Xxxxxx X. Xxxxxx, Esq.
and
Newcomb, Sabin, Xxxxxxxx & Landsverk, LLP
000 XX 0xx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Attention: Xxxx X. Xxxxxxxx, Esq.
7.2 ENTIRE AGREEMENT. This Voting Agreement, the Proxy and any other
documents delivered by the parties in connection herewith constitute the entire
agreement
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between the parties with respect to the subject matter hereof and thereof and
supersede all prior agreements and understandings between the parties with
respect thereto. No addition to or modification of any provision of this
Voting Agreement shall be binding upon either party unless made in writing
and signed by both parties.
7.3 SPECIFIC PERFORMANCE. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Voting Agreement or
the Proxy was not performed in accordance with its specific terms or was
otherwise breached. Shareholder agrees that, in the event of any breach or
threatened breach by Shareholder of any covenant or obligation contained in this
Voting Agreement or in the Proxy, Cascade shall be entitled (in addition to any
other remedy that may be available to it, including monetary damages) to seek
and obtain (a) a decree or order of specific performance to enforce the
observance and performance of such covenant or obligation and (b) an injunction
restraining such breach or threatened breach. Shareholder further agrees that
neither Cascade nor any other Person shall be required to obtain, furnish or
post any bond or similar instrument in connection with or as a condition to
obtaining any remedy referred to in this Section 7.3, and Shareholder
irrevocably waives any right he may have to require the obtaining, furnishing or
posting of any such bond or similar instrument.
7.4 GOVERNING LAW; VENUE.
(a) This Voting Agreement and the Proxy shall be construed in
accordance with, and governed in all respects by, the laws of the State of
Oregon (without giving effect to principles of conflicts of laws).
(b) Any legal action or other legal proceeding relating to this Voting
Agreement or the Proxy or the enforcement of any provision of this Voting
Agreement or the Proxy may be brought or otherwise commenced in any state or
federal court located in the State of Oregon. Shareholder:
(i) expressly and irrevocably consents and submits to the
jurisdiction of each state and federal court located in the State of
Oregon (and each appellate court located in the State of Oregon), in
connection with any such legal proceeding;
(ii) agrees that service of any process, summons, notice or
document by U.S. mail addressed to him at the address set forth in
Section 7.1 shall constitute effective service of such process,
summons, notice or document for purposes of any such legal proceeding;
(iii) agrees that each state and federal court located in the
State of Oregon shall be deemed to be a convenient forum; and
(iv) agrees not to assert (by way of motion, as a defense or
otherwise), in any such legal proceeding commenced in any state or
federal court located in the State of Oregon, any claim that
Shareholder is not subject personally to the jurisdiction of such
court, that such legal proceeding has been brought in an inconvenient
forum,
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that the venue of such proceeding is improper or that this Voting
Agreement or the subject matter of this Voting Agreement may not
be enforced in or by such court.
(c) SHAREHOLDER IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN
CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS VOTING AGREEMENT OR THE
PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS VOTING AGREEMENT OR THE PROXY.
7.5 COUNTERPARTS. This Voting Agreement may be executed by the parties
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument.
7.6 ATTORNEYS' FEES. If any legal action or other legal proceeding
relating to this Voting Agreement or the enforcement of any provision of this
Voting Agreement is brought against Shareholder, the prevailing party shall be
entitled to recover reasonable attorneys' fees, costs and disbursements (in
addition to any other relief to which the prevailing party may be entitled).
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IN WITNESS WHEREOF, Cascade and Shareholder have caused this Voting
Agreement to be executed as of the date first written above.
CASCADE CORPORATION
By:
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Name:
-------------------------
Title:
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SHAREHOLDER
X. X. XXXXXXXX HOLDINGS LTD.
By:
---------------------------
Xxxxxxx X. Xxxxxxxx
President
Address:
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Facsimile:
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EXCHANGEABLE SHARES:
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SHARES HELD OF RECORD:
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OPTIONS AND OTHER RIGHTS:
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ADDITIONAL SECURITIES BENEFICIALLY OWNED:
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