SHAREHOLDERS' AGREEMENT
The Trustees ( Xxxxxx Trustees) of the Xxxxxx X. Xxxxxx and Nani Xxxxxxx
Xxxxxx Revocable Trust (Trust) and Couphar Ltd. (Couphar) agree as follows:
1. Purpose
Trust owns 1,654,592 shares of common stock of Cascade Corporation
(Cascade). In connection with its acquisition of shares of Kenhar Corporation,
Cascade has provided Couphar 1,100,000 Exchangeable Preferred shares of Cascade
(Canada) Holdings, Inc., a corporation organized under the laws of the Province
of Ontario (the Exchangeable Shares). Each Exchangeable Share may be exchanged
for one share of Cascade common stock, pursuant to the provisions of such
Exchangeable Shares. Cascade has agreed to present to its shareholders an
amendment to its Articles of Incorporation permitting issuance to TD Trust
Company, as trustee for Couphar (Couphar Trustee), of a Cascade preferred share
which would grant the Couphar Trustee the right to cast votes equal to the
number of Exchangeable Shares held by Couphar (on the record date for
determining common shareholders eligible to vote) on matters presented to
Cascade common shareholders for decision (the Special Voting Stock). This
Agreement is intended to set forth the parties' understandings as to certain
rights of the parties with respect to voting on certain matters presented to
Cascade common shareholders, and as to certain sales of Cascade common shares by
Xxxxxx Trustees.
2. Definitions
For purposes of this Agreement,
(a) "Common Shares" means shares of common stock of Cascade or any
successor corporation;
(b) "Couphar Common Shares" means at any time the number of Common Shares
which Couphar would hold if all Exchangeable Shares were then
exchanged for Common Shares (not including Common Shares acquired
other than those acquired directly or indirectly through exchange of
Exchangeable Shares or as a result of application of the provisions
attached to the Exchangeable Shares in connection with Cascade's
acquisition of the outstanding stock of Kenhar Corporation).
(c) "Refusal Agreement" means an agreement of even date between Cascade
and Couphar providing Cascade a right of first refusal in the event of
certain
Couphar sales of Common Shares.
(d) "Trust Shares" means at any time the number of Common Shares held by
Xxxxxx Trustees as at such time.
3. Voting of Shares
(a) Xxxxxx Trustees will vote all Common Shares owned by the Trust in
favor of any proposal included on a proxy submitted to shareholders by Cascade
management prior to Cascade's May, 1997, Annual Meeting of Shareholders to amend
Cascade's Articles of Incorporation to permit issuance of Special Voting Stock
to Couphar Trustee.
(b) Xxxxxx Trustees (i) will vote all Common Shares owned by the Trust in
favor of any slate of candidates for election or re-election as directors
included on a proxy submitted by Cascade management prior to any meeting of
shareholders which includes Xxxxxxx X. Xxxxxxxx as a candidate, (ii) will not
withhold the Trust's votes from Xxxxxxx X. Xxxxxxxx'x candidacy, and (iii) in
the event the proxy submitted to shareholders by Cascade management includes
Xxxxxxx X. Xxxxxxxx individually as a candidate for election as a director, will
vote all Common Shares owned by the Trust in favor of his election.
(c) Couphar will, and will cause Couphar Trustee (i) to cast all votes
Couphar or Couphar Trustee may be entitled to cast in favor of any slate of
candidates for election or re-election as directors on a proxy submitted to
shareholders by Cascade management prior to any meeting of shareholders, and
(ii) to take all steps necessary to assure that such votes are not withheld from
any such candidate.
4. Underwritten Offering
(a) Should Xxxxxx Trustees determine to offer Common Shares for public sale
through an underwritten secondary offering, they shall provide Couphar written
notice of such determination (which notice shall include the number of Common
Shares proposed to be sold) and, if within 20 days following receipt of such
notice, Couphar so requests in writing, shall include in such underwritten
offering the number of Common Shares set forth in Couphar's request, subject
to such limitations and restrictions as a lead underwriter or syndicate manager
engaged by Xxxxxx Trustees may determine are necessary for orderly public
distribution or to assure that inclusion of shares owned by Couphar will not be
detrimental to the planned offering (in the event the total number of shares to
be offered is reduced due to such limitation, the parties, respectively, shall
bear such reduction in proportion to the total number of Common Shares and, in
Couphar's case, Couphar Common Shares, owned by each. In the event there are
other sellers, each seller shall bear such reduction in proportion to the total
number of Common Shares and Couphar Common Shares owned by each.
(b) Couphar shall pay, and shall indemnify Xxxxxx Trustees for, the same
proportion of expenses applicable to registration and sale of Common Shares
under this Paragraph 4, including but not limited to filing fees; commissions;
and legal, accounting, and underwriting fees and costs, as the number of shares
offered by Couphar bears to the total number of shares being offered; however,
if the registration is withdrawn or abandoned solely because of actions of
Xxxxxx Trustees, Couphar shall not be liable for payment of expenses.
(c) This Paragraph 4 shall not apply to offerings which include unissued or
treasury shares being offered by Cascade.
5. Private Placement
(a) Should Xxxxxx Trustees determine to sell Trust Shares in a transaction
involving neither an underwritten offering nor a sale through a recognized
securities exchange, they shall provide written notice to Couphar stating (i)
the number of Trust Shares; (ii) the number of Trust Shares proposed to be sold;
(iii) the proposed selling price, and (iv) the proposed method and terms of
sale. Couphar may, upon written request delivered within 14 business days of
such notice, require that Couphar Common Shares be included in such placement;
however, the number of Couphar Common Shares to be included shall not exceed (as
a proportion of the total Couphar Common Shares) the number of Trust Shares the
notice by the Xxxxxx Trustees indicated the Trust intended to sell as a
proportion of the total Trust Shares).
(b) Any such sale shall be on price and other terms negotiated by the
Xxxxxx Trustees, and with due regard for applicable legal obligations of the
parties or either of them to holders of Common Shares as a group.
(c) Legal and other expenses incurred by the Trust in connection with such
negotiation shall be borne by the parties in proportion to proceeds received as
a result of the sale.
(d) Xxxxxx Trustees shall not complete a sale of Trust Shares under this
paragraph unless the Common Shares which Couphar provided notice it wished to
sell, has a right to sell, and tenders for sale hereunder, are purchased as a
part of the sale.
(e) Xxxxxx Trustees shall give Couphar notice of sales under this paragraph
sufficient to enable Couphar to take the steps necessary to exchange
Exchangeable Shares and obtain Common Shares to be included in such sale.
6. Inapplicability and Termination
(a) This Agreement shall terminate and be of no further application at the
earlier of (i) three years from the date hereof or (ii) the date on which either
Couphar or Xxxxxx Trustees own less than 250,000 Common Shares and Couphar
Common Shares (as adjusted for stock dividends, splits, and similar events
affecting all Common Shares); however, termination shall not affect obligations
to complete transactions arising under Paragraph 4 or Paragraph 5 prior to
termination.
(b) This Agreement shall not apply to sales or transfers of shares in
response to tender offers, consolidations, mergers, reorganizations or similar
transactions in which all holders of Common Shares are provided the pro rata
opportunity to sell or transfer shares on identical terms and conditions.
7. Notices
All notices and other communications between the parties pursuant to the
Agreement shall be in writing and shall be deemed to have been given if
delivered personally or by confirmed facsimile to the parties at the following
addresses or at such other address as such party may specify by like notice:
(a) if to Xxxxxx Trustees at:
0000 X.X. Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, Xxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx, Xx.
Facsimile: (000) 000-0000
with a copy (which shall not be notice) to:
Newcomb, Sabin, Xxxxxxxx & Landsverk
000 X.X. Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, Xxxxxx 00000
Facsimile: (000) 000-0000
(b) If to Couphar at:
00 Xxx Xxx Xxxxx, XX #0
Xxxxxx, Xxxxxxx
X0X 0X0
with a copy (which shall not be notice) to:
X.X. Xxxxxx
Xxxx & Berlis
BCE Place
Suite 1800, Box 754
000 Xxx Xxxxxx
Xxxxxxx, Xxxxxx X0X 0X0
Any notice or other communication delivered personally shall be deemed to
have been given and received upon delivery thereof and if given by facsimile
shall be deemed to have been given and received on the date of confirmation of
transmission unless such day is not a business day in the nation in which
received, in which case it shall be deemed to have been given and received upon
the immediately following business day.
8. Assignment
(a) Couphar's rights and obligations hereunder shall extend to transferees
or assignees of transfers permitted under the Refusal Agreement of even date
between Couphar, Xxxxxxx X. Xxxxxxxx and Cascade. Such transferees or assignees
shall agree in writing to be bound by this Agreement as a condition of transfer
or assignment. Common Shares or Couphar Common Shares owned by all such
transferees shall be aggregated for purposes of this Agreement.
(b) Xxxxxx Trustees shall not transfer Common Shares to any Trust
beneficiary unless and until such beneficiary shall agree in writing to assume
the obligations of Xxxxxx Trustees hereunder as to such Common Shares. Common
shares owned by all such transferees shall be aggregated for purposes of this
Agreement.
9. Choice of Law
This Agreement shall be governed by, and interpreted and applied in
accordance with, the laws of the United States and the State of Oregon.
10. Integration and Modification
This Agreement represents the parties' entire agreement on the subject
matter covered, and supersedes all prior agreements and understandings.
Provisions of this
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Agreement may be amended or its observance waived generally or in particular
only by a written instrument duly executed by each of the parties (or, in the
case of a waiver, the waiving party).
DATED this 11th day of March, 1997.
THE XXXXXX X. XXXXXX AND COUPHAR LTD
NANI XXXXXXX XXXXXX
REVOCABLE TRUST
By /s/ Nani Xxxxxxx Xxxxxx By /s/ X.X. Xxxxxxxx
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Its
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/s/ X.X. Xxxxxxx
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/s/ Xxxx X. Xxxxxxxx
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/s/ Xxxxxx X. Xxxxxx, Xx.
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Xxxxxx Trustees
In consideration of the Xxxxxx X. and Nani X. Xxxxxx Revocable Trust
entering into the above Agreement, the undersigned sole shareholder of
Couphar Ltd. hereby guarantees full performance by Couphar of its
obligations hereunder.
/s/ X.X. Xxxxxxxx
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Xxxxxxx X. Xxxxxxxx
