<PAGE>
--------------------------------------------------------------------------------
AGREEMENT AND PLAN OF MERGER
AMONG
CASCADE ACQUISITION CORP.
CASCADE--II ACQUISITION CORP.
CAS ACQUISITION CORP.
AND
CASCADE CORPORATION
DATED AS OF OCTOBER 18, 2000
--------------------------------------------------------------------------------
<PAGE>
TABLE OF CONTENTS
<TABLE>
<C> <S> <C>
ARTICLE 1 DEFINITIONS.................................................. A-1
ARTICLE 2 THE MERGER................................................... A-4
2.1 The Merger.................................................. A-4
2.2 Articles of Incorporation................................... A-4
2.3 Bylaws...................................................... A-4
2.4 Directors and Officers...................................... A-4
2.5 Effective Time.............................................. A-4
ARTICLE 3 CONVERSION OF SHARES......................................... A-4
3.1 Cascade Common Stock........................................ A-4
3.2 Cascade Special Voting Stock................................ A-5
3.3 Options..................................................... A-5
3.4 Acquisition Co. Common Stock................................ A-6
3.5 Payment for Cascade Common Stock and Options................ A-6
3.6 Adjustment to Prevent Dilution.............................. A-7
ARTICLE 4 REPRESENTATIONS AND WARRANTIES OF CASCADE.................... A-8
4.1 Organization, etc........................................... A-8
4.2 Authorization and Binding Obligation........................ A-8
4.3 Capitalization.............................................. A-9
4.4 Consents and Approvals; No Conflicts........................ A-10
4.5 Financial Statements; SEC Reports........................... A-10
4.6 Undisclosed Liabilities..................................... A-11
4.7 Governmental Approvals and Authorizations................... A-11
4.8 Compliance with Laws........................................ A-11
4.9 Absence of Certain Payments................................. A-11
4.10 Real Property............................................... A-11
4.11 Personal Property........................................... A-12
4.12 Intellectual Property....................................... A-12
4.13 Contracts................................................... A-12
4.14 Employee Benefit Plans...................................... A-13
4.15 Labor Matters............................................... A-14
4.16 Actions Pending............................................. A-14
4.17 Affiliate Transactions...................................... A-14
4.18 Absence of Changes or Events................................ A-14
4.19 Taxes....................................................... A-14
4.20 Insurance................................................... A-15
4.21 Environmental Matters....................................... A-15
4.22 Absence of Conflicts of Interest............................ A-16
4.23 Fairness Opinion; Financial Advisor......................... A-16
4.24 Foreign Person.............................................. A-16
4.25 Vote Required............................................... A-16
ARTICLE 5 REPRESENTATIONS AND WARRANTIES OF THE PARENT AND
ACQUISITION CO......................................................... A-16
5.1 Organization and Standing................................... A-16
5.2 Authorization and Binding Obligation........................ A-16
5.3 Consents and Approvals; No Conflicts........................ A-16
5.4 Litigation.................................................. A-17
5.5 Finders and Investment Bankers.............................. A-17
5.6 Financing................................................... A-17
</TABLE>
AGREEMENT AND PLAN OF MERGER
PAGE i
<PAGE>
<TABLE>
<C> <S> <C>
5.7 Voting Agreement............................................ A-17
ARTICLE 6 COVENANTS.................................................... A-18
6.1 Shareholder Approvals and Cascade Proxy Statement........... A-18
6.2 Filings; Cooperation........................................ A-18
6.3 Conduct of Business......................................... A-19
6.4 Additional Agreements....................................... A-20
6.5 Acquisition Proposals....................................... A-21
6.6 Public Announcements........................................ A-22
6.7 Consent of the Parent....................................... A-22
6.8 Transfer Taxes.............................................. A-22
6.9 Indemnification of Officers and Directors; Officers' and
Directors' Insurance........................................ A-23
6.10 Notification of Certain Matters............................. A-23
6.11 Access to Information....................................... A-23
ARTICLE 7 CLOSING CONDITIONS........................................... A-23
7.1 Conditions Precedent to the Obligations of All Parties...... A-23
7.2 Additional Conditions Precedent to the Obligation of
Cascade..................................................... A-24
7.3 Additional Conditions Precedent to the Obligations of the
Parent and Acquisition Co................................... A-24
ARTICLE 8 CLOSING...................................................... A-25
8.1 Time and Place.............................................. A-25
8.2 Filings at the Closing; Other Actions....................... A-25
ARTICLE 9 NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS.... A-25
ARTICLE 10 TERMINATION RIGHTS.......................................... A-25
10.1 Termination................................................. A-25
10.2 Procedure and Effect of Termination......................... A-26
10.3 Expenses; Termination Fee................................... A-26
ARTICLE 11 OTHER PROVISIONS............................................ A-27
11.1 Amendment and Modification.................................. A-27
11.2 Benefit and Assignment...................................... A-27
11.3 No Third-party Beneficiaries................................ A-27
11.4 Entire Agreement............................................ A-27
11.5 Headings.................................................... A-27
11.6 Choice of Law............................................... A-27
11.7 Notices..................................................... A-27
11.8 Severability................................................ A-28
11.9 Extensions and Waivers...................................... A-29
11.10 Counterparts................................................ A-29
11.11 Schedules................................................... A-29
</TABLE>
AGREEMENT AND PLAN OF MERGER
PAGE ii
<PAGE>
TABLE OF SCHEDULES
<TABLE>
<S> <C>
Schedule 1.39 ............................................. Named Officers
Schedule 2.4 ...................... Officers of the Surviving Corporation
Schedule 4.1(a) ................ Jurisdictions in Which Cascade is Qualified
Schedule 4.1(b) ... Cascade Subsidiaries and Jurisdictions in Which They are
Qualified
Schedule 4.1(c) ....... Liens on Interests in Cascade Subsidiaries; Minority
Owners of Cascade Subsidiaries
Schedule 4.3 ........ Capitalization of Cascade and Cascade Subsidiaries;
Minority Owners ofCascade Subsidiaries; Agreements to
Purchase or Sell Equity ofCascade or Cascade Subsidiaries
Schedule 4.4 ..................... Consents and Approvals for Transaction
Schedule 4.6 .................................... Undisclosed Liabilities
Schedule 4.10 . Real Property Interests; Liens on Real Property; Damage to
Real Property;Rights to Acquire Real Property
Schedule 4.12 ...................................... Intellectual Property
Schedule 4.13 .................................................. Contracts
Schedule 4.14 ..................................... Employee Benefit Plans
Schedule 4.14(f) ............... Former Employee Health Insurance Obligations
Schedule 4.14(g) ............................. Impact of Transaction on Plans
Schedule 4.15 .............................................. Labor Matters
Schedule 4.16 ............................................ Actions Pending
Schedule 4.17 ..................................... Affiliate Transactions
Schedule 4.19 ............ Taxes; Jurisdictions in Which Tax Returns Filed
Schedule 4.20 ......................................... Insurance Policies
Schedule 4.21 ...................................... Environmental Matters
Schedule 4.22 .................................... Interested Transactions
Schedule 5.5 ............................. Finders and Investment Bankers
Schedule 6.3 ........................................ Conduct of Business
</TABLE>
AGREEMENT AND PLAN OF MERGER
PAGE iii
<PAGE>
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER, dated as of October 18, 2000 (the
"Agreement"), among CASCADE ACQUISITION CORP., a Delaware corporation ("CAC-I"),
CASCADE--II ACQUISITION CORP., a Delaware corporation ("CAC-2," and together
with CAC-I, the "Parent"), CAS ACQUISITION CORP., an Oregon corporation and an
indirect wholly-owned subsidiary of the Parent ("Acquisition Co."), and CASCADE
CORPORATION, an Oregon corporation ("Cascade"). Except as otherwise provided,
references to Sections, Schedules and Exhibits are to sections of and schedules
and exhibits to this Agreement.
ARTICLE 1
DEFINITIONS
1.1 "Acquisition Co." has the meaning set forth in the preamble to this
Agreement.
1.2 "Acquisition Co. Common Stock "has the meaning set forth in
Section 3.4.
1.3 "Acquisition Proposal" has the meaning set forth in Section 6.5(a).
1.4 "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.
1.5 "Applicable Law" means all applicable provisions of all
(i) constitutions, treaties, statutes, laws (including, but not limited to, the
common law), rules, regulations, ordinances, codes or orders of any Governmental
Authority and (ii) orders, decisions, rulings, injunctions, judgments, awards
and decrees or consents of or agreements with any Governmental Authority.
1.6 "Articles of Merger" has the meaning set forth in Section 2.5.
1.7 "Board" has the meaning set forth in Section 4.2(b).
1.8 "Business Day" means every day of the week excluding Saturdays, Sundays
and federal holidays.
1.9 "CAC-I" has the meaning set forth in the preamble to this Agreement.
1.10 "CAC-II" has the meaning set forth in the preamble to this Agreement.
1.11 "Cascade" has the meaning set forth in the preamble to this Agreement.
1.12 "Cascade Common Stock" means the common stock, par value $0.50 per
share, of Cascade.
1.13 "Cascade Shareholders Meeting" has the meaning set forth in
Section 6.1(a).
1.14 "Cascade Special Voting Stock" means the share of Cascade Special
Voting Stock issued pursuant to the Share Purchase Agreement.
1.15 "Cascade Subsidiary" means any corporation, partnership, limited
liability company, joint venture or other entity of which Cascade owns, directly
or indirectly, at least a majority of the securities or other ownership interest
having by the terms thereof ordinary voting power to elect a majority of the
board of directors or other Persons performing similar functions of such
corporation, partnership, limited liability company, joint venture or other
entity.
1.16 "Certificates" has the meaning set forth in Section 3.5(a).
1.17 "Closing" means the closing of the Merger.
1.18 "Closing Date" means the date on which the Closing occurs.
1.19 "Code" means the Internal Revenue Code of 1986, as amended, together
with all regulations and rulings issued thereunder by any Governmental
Authority.
A-1
<PAGE>
1.20 "Commitment Letters" has the meaning set forth in Section 5.6.
1.21 "Contract" has the meaning set forth in Section 4.13.
1.22 "Effective Time" has the meaning set forth in Section 2.5.
1.23 "Environmental Laws" means all Applicable Laws relating to the
protection of human health or the environment.
1.24 "ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, together with the regulations and rulings issued thereunder by any
Governmental Authority.
1.25 "Exchange Act" means the Securities Exchange Act of 1934, as amended.
1.26 "Exchangeable Shares" means the exchangeable shares of Cascade
(Canada) Ltd. (formerly Cascade (Canada) Holdings Inc.) issued pursuant to the
Share Purchase Agreement.
1.27 "Exercise Price" means, with respect to any Option, the price at which
the holder of such Option is entitled to purchase one share of Cascade Common
Stock upon exercise of such Option.
1.28 "Expenses" has the meaning set forth in Section 10.3(b).
1.29 "Filings" has the meaning set forth in Section 6.2(a).
1.30 "Financial Statements" has the meaning set forth in Section 4.5.
1.31 "Financings" shall have the meaning set forth in Section 5.6.
1.32 "GAAP" means United States generally accepted accounting principles
consistently applied.
1.33 "Governmental Approvals" has the meaning set forth in Section 4.7.
1.34 "Governmental Authority" means any nation or government, any state or
other political subdivision thereof or any entity exercising executive,
legislative, judicial, regulatory or administrative functions of or pertaining
to government, in each case to the extent the same has jurisdiction over the
Person or property in question.
1.35 "Hazardous Materials" means, without limitation, asbestos, materials
containing asbestos, polychlorinated biphenyls, petroleum products and
byproducts, or other hazardous or toxic substances, wastes, pollutants or
contaminants defined under or regulated by Environmental Laws.
1.36 "HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended, and the regulations adopted thereunder.
1.37 "Immaterial Cascade Subsidiary" means all Cascade Subsidiaries except
the Material Cascade Subsidiaries.
1.38 "IRS" means the Internal Revenue Service of the United States.
1.39 "Knowledge" means, with respect to Cascade or any Cascade Subsidiary,
the actual knowledge of any of the officers set forth on Schedule 1.39 or such
knowledge as such officer would obtain upon reasonable inquiry in the area of
such officer's responsibility.
1.40 "Leased Property" has the meaning set forth in Section 4.10.
1.41 "Liens" means all debts, liens, security interests, mortgages, pledges,
judgments, trusts, adverse claims, liabilities, encumbrances and other
impairments of title of any kind other than Permitted Liens.
1.42 "Material Adverse Effect" means a material adverse effect on the
business, assets, properties, liabilities, results of operations or financial
condition of Cascade and the Cascade Subsidiaries, taken as a whole.
A-2
<PAGE>
1.43 "Material Cascade Subsidiary" means Cascade (Australia) Pty. Ltd.,
Cascade (Canada) Ltd., Cascade Hydraulic Cylinders, Inc., Sandy Blvd.
Development Associates, Inc., Cascade IFSC Ltd., Cascade (Japan) Ltd., Cascade
Kenhar Ltd. (KPL), Cascade NV, Cascade (Ontario), Inc., Cascade Products Ltd.,
Cascade (UK) Limited, CNS (Halifax) Limited and CNS (Nova Scotia) Co.
1.44 "Merger" has the meaning set forth in Section 2.1.
1.45 "OBCA" means the Oregon Business Corporation Act.
1.46 "Option" means an outstanding option to purchase Cascade Common Stock
issued prior to the date hereof pursuant to the 1999 Amendment and Restatement
of the Cascade Corporation 1995 Senior Managers' Incentive Stock Option Plan.
1.47 "Option Consideration" has the meaning set forth in Section 3.3(a).
1.48 "Option Plan" means the 1999 Amendment and Restatement of the Cascade
Corporation 1995 Senior Managers' Incentive Stock Option Plan.
1.49 "Optionee" means a holder of an option under the Option Plan.
1.50 "Outstanding Cascade Shares" means the aggregate number of shares of
Cascade Common Stock and Exchangeable Shares issued and outstanding immediately
prior to the Effective Time.
1.51 "Owned Property" has the meaning set forth in Section 4.10.
1.52 "Parent" has the meaning set forth in the preamble to this Agreement.
1.53 "Parent Commitment Letter" has the meaning set forth in Section 5.6.
1.54 "Permitted Liens" has the meaning set forth in Section 4.10.
1.55 "Per Share Price" means (U.S.) $17.25.
1.56 "Person" means an individual, corporation, partnership, limited
partnership, limited liability partnership, limited liability company,
association, trust or other entity or organization, including a government or
political subdivision or an agency or instrumentality thereof.
1.57 "Plans" has the meaning set forth in Section 4.14.
1.58 "Proxy Statement" has the meaning set forth in Section 6.1(b).
1.59 "Real Estate Laws" means any applicable building, zoning, subdivision,
set back and other land use and other laws, codes, ordinances, rules,
regulations and orders of Governmental Authorities relating to the ownership,
use, operation or condition of the Real Property.
1.60 "Real Property" has the meaning set forth in Section 4.10.
1.61 "Returns" has the meaning set forth in Section 4.19.
1.62 "SEC" means the United States Securities and Exchange Commission.
1.63 "SEC Reports" has the meaning set forth in Section 4.5(b).
1.64 "Share Purchase Agreement" means the Share Purchase Agreement dated
March 11, 1997 among Couphar Ltd., Balyrobe Ltd., 879185 Ontario Inc., 568745
Ontario, Inc., James E. Britton (in trust), Penfund Partners and Company, Bantor
Company, W.J. Harrison and Cascade (Canada) Holdings Inc. and Cascade.
1.65 "Special Committee" means the Special Committee of the Board.
1.66 "Superior Proposal" has the meaning set forth in Section 6.5(a).
1.67 "Surviving Corporation" has the meaning set forth in Section 2.1.
A-3
<PAGE>
1.68 "Surviving Corporation Common Stock" has the meaning set forth in
Section 3.4.
1.69 "Tax" has the meaning set forth in Section 4.19.
1.70 "Taxing Authority" has the meaning set forth in Section 4.19.
1.71 "Transfer Taxes" means all sales (including, without limitation, bulk
sales), use, value added, documentary, stamp, gross receipts, registration,
transfer, conveyance, excise, recording, license and other similar Taxes and
fees imposed by any Governmental Authority.
ARTICLE 2
THE MERGER
2.1 THE MERGER. In accordance with the provisions of this Agreement and
the OBCA, at the Effective Time (a) Acquisition Co. shall be merged with and
into Cascade (the "Merger"), and Cascade shall be the surviving corporation of
the Merger (hereinafter sometimes called the "Surviving Corporation") and shall
continue its corporate existence under the laws of the State of Oregon; (b) the
name, identity, existence, rights, privileges, powers, franchises, properties
and assets of Cascade shall continue unaffected and unimpaired; and (c) the
separate existence of Acquisition Co. shall cease, and all of the rights,
privileges, powers, franchises, properties and assets of Acquisition Co. shall
be vested in the Surviving Corporation. The name of the Surviving Corporation
shall be "Cascade Corporation."
2.2 ARTICLES OF INCORPORATION. The Restated Articles of Incorporation of
Cascade in effect immediately prior to the Effective Time shall be the Articles
of Incorporation of the Surviving Corporation until thereafter amended as
provided therein or by law.
2.3 BYLAWS. The Bylaws of Acquisition Co. in effect immediately prior to
the Effective Time shall be the Bylaws of the Surviving Corporation until
thereafter amended, altered or repealed as provided therein.
2.4 DIRECTORS AND OFFICERS. The directors of Acquisition Co. immediately
prior to the Effective Time shall be the directors of the Surviving Corporation,
each to hold office in accordance with the Articles of Incorporation and Bylaws
of the Surviving Corporation until his or her successor is appointed and
qualified or until his or her earlier death, resignation or removal. The
individuals set forth on Schedule 2.4 shall be the officers of the Surviving
Corporation, each to hold office in accordance with the Articles of
Incorporation and Bylaws of the Surviving Corporation until his or her successor
is appointed and qualified or until his or her earlier death, resignation or
removal.
2.5 EFFECTIVE TIME. The Merger shall become effective with the filing of
the Articles of Merger (and the associated plan of merger) with the Secretary of
State of the State of Oregon in accordance with Sections 60.011 and 60.494 of
the OBCA (the "Articles of Merger"). The Articles of Merger shall be filed
simultaneously with the Closing. The date and time when the Merger shall become
effective is hereinafter referred to as the "Effective Time."
ARTICLE 3
CONVERSION OF SHARES
3.1 CASCADE COMMON STOCK.
(a) At the Effective Time, by virtue of the Merger and without any
action on the part of the holder thereof, each share of Cascade Common Stock
(except for (i) any shares of Cascade Common Stock then owned beneficially or of
record by the Parent or Acquisition Co. or any other subsidiary of the Parent,
and (ii) shares of Cascade Common Stock then held in the treasury of Cascade or
by any
A-4
<PAGE>
Cascade Subsidiary issued and outstanding immediately prior to the Effective
Time), shall be converted into the right to receive cash in an amount equal to
the Per Share Price.
(b) At the Effective Time, each share of Cascade Common Stock which is
then owned beneficially or of record by the Parent or Acquisition Co. or any
other direct or indirect subsidiary of the Parent shall, by virtue of the Merger
and without any action on the part of the holder thereof, be canceled and
retired and cease to exist, without any conversion thereof.
(c) At the Effective Time, each share of Cascade Common Stock held in
Cascade's treasury or by any Cascade Subsidiary immediately prior to the
Effective Time shall, by virtue of the Merger, be canceled and retired and cease
to exist, without any conversion thereof.
(d) The holders of certificates representing shares of Cascade Common
Stock shall, as of the Effective Time, cease to have any rights as shareholders
of Cascade, except such rights, if any, as they may have pursuant to the OBCA
and, except as aforesaid, their sole right shall be the right to receive the Per
Share Price for each share of Cascade Common Stock owned of record by them,
without interest, as determined and paid in the manner set forth in
Section 3.5.
3.2 CASCADE SPECIAL VOTING STOCK.
(a) At the Effective Time, by virtue of the Merger and without any
action on the part of the holder thereof, the outstanding share of Cascade
Special Voting Stock shall be converted into one share of special voting stock
of the Surviving Corporation.
(b) DISSENTERS' RIGHTS.
(i) Notwithstanding any provision of this Agreement to the contrary,
if the holder of the share of Cascade Special Voting Stock has demanded
and perfected appraisal or dissenters' rights for such share in
accordance with the OBCA and, as of the Effective Time, has not
effectively withdrawn or lost such appraisal or dissenters' rights, the
share of Cascade Special Voting Stock shall not be converted pursuant to
Section 3.2, and the holder of the share of Cascade Special Voting Stock
shall only be entitled to such rights as are granted by Applicable Law.
(ii) Notwithstanding the provisions of subsection (i) above, if the
holder of the share of Cascade Special Voting Stock demands appraisal of
such share under the OBCA and subsequently effectively withdraws or loses
(through failure to perfect or otherwise) the right to appraisal then, as
of the later of the Effective Time and the occurrence of such event, such
holder's share shall represent one share of special voting stock of the
Surviving Corporation.
(iii) Cascade shall give the Parent (A) prompt notice of a written
demand for appraisal of the share of Cascade Special Voting Stock,
withdrawal of such demand, and any other instruments served pursuant to
the OBCA and received by Cascade and (B) the opportunity to participate
in all negotiations and proceedings with respect to demands for appraisal
under the OBCA.
3.3 OPTIONS.
(a) At the Effective Time each Optionee who elects to exercise an
Option pursuant to Section 12(a) of the Option Plan, which had an Exercise Price
less than the Per Share Price, shall be entitled to receive for each Option
outstanding immediately prior to the Effective Time, by virtue of the Merger and
without any other action on the part of the Optionee, cash in an amount equal to
(i) the number of shares of Cascade Common Stock for which such Option was
exercisable immediately
A-5
<PAGE>
prior to the Effective Time, multiplied by (ii) the excess of the Per Share
Price over the Exercise Price (the "Option Consideration").
(b) At the Effective Time, each Option which then has an Exercise Price
in excess of the Per Share Price, by virtue of the Merger and without any action
on the part of the Optionee, shall be canceled, without any conversion thereof.
(c) All Optionees shall, as of the Effective Time, cease to have any
rights as Option holders of Cascade and their sole right, if any, shall be the
right to receive the Option Consideration, without interest, as determined and
paid in the manner set forth in Section 3.5.
3.4 ACQUISITION CO. COMMON STOCK. Each share of common stock, par value
$0.01 per share, of Acquisition Co. (the "Acquisition Co. Common Stock"), issued
and outstanding immediately prior to the Effective Time shall, by virtue of the
Merger and without any action on the part of the holder thereof, be converted
into and exchangeable for one fully paid and non-assessable share of common
stock, par value $0.50 per share, of the Surviving Corporation (the "Surviving
Corporation Common Stock"). From and after the Effective Time, each outstanding
certificate theretofore representing shares of Acquisition Co. Common Stock
shall be deemed for all purposes to evidence ownership of and to represent the
number of shares of Surviving Corporation Common Stock into which such shares of
Acquisition Co. Common Stock shall have been converted. Promptly after the
Effective Time, the Surviving Corporation shall issue to the Parent a stock
certificate or certificates representing one share of Surviving Corporation
Common Stock for each share of Acquisition Co. Common Stock issued and
outstanding immediately prior to the Effective Time, in exchange for the
certificate or certificates which formerly represented shares of Acquisition Co.
Common Stock, which shall be canceled.
3.5 PAYMENT FOR CASCADE COMMON STOCK AND OPTIONS.
(a) Prior to the Effective Time, the Parent shall designate a business
entity regularly engaged in such work and which is reasonably satisfactory to
Cascade to act as Paying Agent with respect to the Merger (the "Paying Agent").
Each record holder (other than Parent, Acquisition Co. or any other subsidiary
of Parent) of Cascade Common Stock immediately prior to the Effective Time will
be entitled to receive upon (i) surrender to the Paying Agent of the
certificates representing such shares of Cascade Common Stock (the
"Certificates") for cancellation and (ii) delivery to the Paying Agent of the
letter of transmittal referred to in the last sentence of this Section 3.5(a),
duly completed and executed, and any other items specified in such letter of
transmittal, cash in an amount equal to the product of the number of shares of
Cascade Common Stock previously represented by the Certificates multiplied by
the Per Share Price, subject to any required withholding of taxes. Each holder
of Options that have an Exercise Price which is less than the Per Share Price
immediately prior to the Effective Time will be entitled to receive upon
(i) surrender to the Paying Agent of all such Option agreements held by such
Person evidencing the number of shares of Cascade Common Stock into which such
Options were exercisable immediately prior to the Effective Time and
(ii) delivery to the Paying Agent of the letter of transmittal referred to in
the last sentence of this Section 3.5(a), duly completed and executed, and any
other items specified in such letter of transmittal, cash in an amount equal to
the aggregate Option Consideration for all such Options, subject to any required
withholding of taxes. At or prior to the Effective Time, Acquisition Co. shall
make available to the Paying Agent sufficient funds to make all payments in
amounts determined pursuant to the preceding sentences. No interest shall accrue
or be paid on the cash payable upon the surrender of the Certificates or the
Options. Any funds delivered or made available to the Paying Agent pursuant to
this Section 3.5(a) and not exchanged for Certificates or Options within six
months after the Effective Time will be returned by the Paying Agent to the
Surviving Corporation, which thereafter will act as Paying Agent, subject to the
rights of holders of unsurrendered Certificates or Options under this
Section 3.5(a), and any former holders who have not previously exchanged their
Certificates or Options will thereafter be entitled to
A-6
<PAGE>
look only to the Surviving Corporation for payment of their claim for the
consideration set forth in Sections 3.1 and 3.3, respectively, without any
interest, but will have no greater rights against the Surviving Corporation than
may be accorded to general creditors thereof under Applicable Law.
Notwithstanding the foregoing, neither the Paying Agent nor any party hereto
shall be liable to a holder of shares of Cascade Common Stock or Options for any
cash or interest delivered to a public official pursuant to applicable abandoned
property, escheat or similar laws. As soon as practicable after the Effective
Time, the Surviving Corporation will cause the Paying Agent to mail to each
record holder of shares of Cascade Common Stock and each holder of Options that
have an Exercise Price which is less than the Per Share Price immediately prior
to the Effective Time (i) a form of letter of transmittal (which will specify
that delivery will be effected, and risk of loss and title to the Certificates
or Options will pass, only upon proper delivery of the Certificates or Options
to the Paying Agent), which letter shall be in customary form, and
(ii) instructions for use in effecting the surrender of the Certificates or
Options for payment.
(b) With respect to any Certificate or Option alleged to have been
lost, stolen or destroyed, the owner or owners of such Certificate or Option
shall be entitled to the consideration set forth above upon delivery to the
Surviving Corporation of the other items set forth in Section 3.5(a) and an
affidavit of such owner or owners setting forth such allegation and an indemnity
agreement to indemnify the Parent, the Surviving Corporation and the Paying
Agent against any claim that may be made against any, some or all of them on
account of the alleged loss, theft or destruction of any such Certificate or
Option or the delivery of the payment set forth above.
(c) If consideration is to be delivered to a Person other than the
Person in whose name the Certificate or Option surrendered in exchange therefor
is registered, it shall be a condition to delivery of the consideration that the
Certificate or Option so surrendered shall be properly endorsed or otherwise in
proper form for transfer and that the Person requesting such consideration shall
pay any transfer or other Taxes required by reason of the payment to a Person
other than the registered holder of the Certificate or Option surrendered or
establish to the satisfaction of the Surviving Corporation that such Tax has
been paid or is not applicable.
(d) Until surrendered in accordance with the provisions of this
Section 3.5, from and after the Effective Time, (i) each Certificate (other than
(A) Certificates representing shares of Cascade Common Stock owned beneficially
or of record by the Parent, Acquisition Co. or any other subsidiary of the
Parent, and (B) Certificates representing shares of Cascade Common Stock held in
Cascade's treasury or by any Cascade Subsidiary) shall represent for all
purposes only the right to receive the Per Share Price for each share
represented by such Certificate, as determined and paid in the manner set forth
in this Agreement and (ii) each Option that has an Exercise Price which is less
than the Per Share Price immediately prior to the Effective Time shall represent
for all purposes only the right to receive the Option Consideration, as
determined and paid in the manner set forth in this Agreement.
(e) After the Effective Time, there shall be no transfers on the stock
transfer books of the Surviving Corporation of the Cascade Common Stock that was
outstanding immediately prior to the Effective Time. If, after the Effective
Time, Certificates or Options are presented to the Surviving Corporation, they
shall be cancelled and presented to the Paying Agent for payment (subject to
Section 3.5(a)) of the applicable consideration referred to in this
Section 3.5.
3.6 ADJUSTMENT TO PREVENT DILUTION. In the event that Cascade changes the
number of shares of Cascade Common Stock, Options or other securities
convertible or exchangeable into or exercisable for shares of Cascade Common
Stock issued and outstanding prior to the Effective Time as a result of a
reclassification, stock split (including a reverse split), stock dividend or
distribution, recapitalization,
A-7
<PAGE>
merger, subdivision, issuer tender or exchange offer, or other similar
transaction, the Per Share Price shall be equitably adjusted.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES OF CASCADE
Cascade hereby represents and warrants to the Parent and Acquisition Co. as
follows:
4.1 ORGANIZATION, ETC.
(a) Cascade is a corporation duly organized, validly existing and in
good standing under the laws of the State of Oregon and has all requisite
corporate power and authority to own, lease and operate its properties and to
carry on its business as now being conducted. Cascade is duly qualified or
licensed and in good standing to do business in each jurisdiction in which the
property owned, leased or operated by it or the nature of the business conducted
by it makes such qualification necessary, except where the failure to be so
qualified or licensed would not have a Material Adverse Effect. Each
jurisdiction where Cascade is so qualified is listed on Schedule 4.1(a). Except
as set forth on Schedule 4.1(b), there are no Cascade Subsidiaries and, except
as set forth on Schedule 4.1(b) and except with respect to the Exchangeable
Shares, Cascade does not own, directly or indirectly, any capital stock of or
equity interest in any corporation, partnership, joint venture or other entity,
nor is Cascade bound by any agreement to acquire any such capital stock or
equity interest. Cascade has heretofore delivered or made available to the
Parent accurate and complete copies of the Restated Articles of Incorporation
and Bylaws of Cascade, each as amended and in effect on the date hereof. The
stock certificate books and ledgers of Cascade, which have been made available
to the Parent, accurately reflect, at the date hereof, the ownership of the
issued and outstanding capital stock of Cascade.
(b) Each Cascade Subsidiary is listed on Schedule 4.1(b). Each Material
Cascade Subsidiary and, to Cascade's Knowledge, each Immaterial Cascade
Subsidiary is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation and has all
requisite corporate power and authority to own, lease and operate its properties
and to carry out its business as now being conducted. Each Material Cascade
Subsidiary and, to Cascade's Knowledge, each Immaterial Cascade Subsidiary is
duly qualified or licensed and in good standing to do business in each
jurisdiction in which the property owned, leased or operated by it or the nature
of the business conducted by it makes such qualification necessary, except where
the failure to be so qualified or licensed would not have a Material Adverse
Effect. Each jurisdiction where each Material Cascade Subsidiary is so qualified
is listed on Schedule 4.1(b). Cascade has delivered to the Parent accurate and
complete copies of the Articles of Incorporation and Bylaws of each Material
Cascade Subsidiary, as amended and in effect on the date hereof.
(c) Except as set forth on Schedule 4.1(c), Cascade owns of record and
beneficially 100% of the issued and outstanding capital stock and all other
equity interest in each Cascade Subsidiary, free and clear of any Liens.
4.2 AUTHORIZATION AND BINDING OBLIGATION.
(a) Cascade has all necessary corporate power and authority to execute
and deliver this Agreement and to consummate the transactions contemplated
hereby. Subject to the approvals referred to in Section 6.1, Cascade's
execution, delivery and performance of this Agreement has been duly and validly
authorized by all necessary corporate action on the part of Cascade and this
Agreement has been duly executed and delivered by Cascade. Except for the
actions referred to in Section 4.2(b), which actions are in full force and
effect, and the giving of notice in accordance with Sections 60.214,
A-8
<PAGE>
60.561 and 60.567 of the OBCA, no other corporate action or proceedings on the
part of Cascade are necessary to authorize this Agreement or the consummation of
the transactions contemplated hereby. This Agreement constitutes the valid and
binding obligation of Cascade, enforceable against Cascade in accordance with
its terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or similar rights of creditors generally and by
general principles of equity.
(b) The Cascade Board of Directors (the "Board") has authorized the
execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby and has voted to recommend adoption of this
Agreement and authorization of the Merger by the shareholders of Cascade, and
has not withdrawn such authorization. A true and complete copy of such approvals
by the Board has been delivered to the Parent.
(c) The Board has taken all appropriate action so that the entry into
this Agreement and the consummation of the transactions contemplated by this
Agreement shall be exempted from the provisions of OBCA 60.801-60.816 and
60.825-60.845. No other "fair price," "moratorium," "control share acquisition"
or similar anti-takeover statute or regulation, including, without limitation,
OBCA 60.801-60.816 and 60.825-60.845 (each, a "Takeover Statute"), or any
applicable anti-takeover provision in the Restated Articles of Incorporation and
Bylaws of Cascade is, or at the Effective Time will be, applicable to Cascade,
the shares of Cascade Common Stock, the Merger or the other transactions
contemplated by this Agreement.
4.3 CAPITALIZATION.
(a) The authorized Cascade Common Stock and other authorized capital
stock of Cascade and each of the Cascade Subsidiaries is as set forth on
Schedule 4.3. All issued and outstanding shares of Cascade Common Stock and
other equity interest of Cascade and each of the Cascade Subsidiaries are duly
authorized, validly issued, fully paid, non-assessable and free of preemptive
rights. Schedule 4.3 sets forth the name of each Person who owns beneficially or
of record any shares of capital stock and other equity interest of any Cascade
Subsidiary and, in the case of each Cascade Subsidiary, the number of shares
owned by each such Person. Other than the Exchangeable Shares and the share of
Cascade Special Voting Stock, there are no bonds, debentures, notes or other
indebtedness or securities of Cascade or of any Cascade Subsidiary issued and
outstanding which have the right to vote (or are convertible into, or
exchangeable for, securities having the right to vote) on any matter on which
shareholders of Cascade or any Cascade Subsidiary may vote.
(b) Except as set forth on Schedule 4.3, there are not now, and at the
Effective Time there will not be, any options, warrants, calls, subscriptions,
or other rights, agreements or commitments of any nature whatsoever obligating
Cascade or any of the Cascade Subsidiaries to issue, transfer, deliver or sell,
or cause to be issued, transferred, delivered or sold, any additional shares of
Cascade Common Stock or other equity interest of Cascade or any of the Cascade
Subsidiaries, or any securities or obligations convertible into or exchangeable
for any such Cascade Common Stock or other equity interest, or obligating
Cascade or any of the Cascade Subsidiaries to grant, extend or enter into such
agreement or commitment, and no authorization therefor has been given or made by
Cascade or any Cascade Subsidiary. Except for the arrangements described in
Schedule 4.3, there are no contractual arrangements that obligate Cascade or any
Cascade Subsidiary to (i) repurchase, redeem or otherwise acquire any of its
capital stock or other equity interest or (ii) pay any Person any consideration
that is calculated with reference to the consideration to be paid to the Cascade
shareholders under this Agreement.
(c) Except as set forth in Section 5.7, there are not now, and at the
Effective Time there will not be, any shareholder agreements, voting trusts or
other agreements or understandings to which
A-9
<PAGE>
Cascade is a party or by which it is bound relating to the voting of any shares
of the capital stock of Cascade which will limit the granting of proxies by or
on behalf of or from, or the casting of votes by, Cascade stockholders with
respect to the Merger. There are no restrictions on the ability of Cascade to
vote the stock of any of the Cascade Subsidiaries.
4.4 CONSENTS AND APPROVALS; NO CONFLICTS. Except as set forth on
Schedule 4.4 and for (a) the applicable requirements of the HSR Act and the
Exchange Act, (b) the approvals referred to in Section 4.2(b), (c) the giving of
notice in accordance with Section 60.214 of the OBCA and (d) the filing and
recordation of the Articles of Merger as required by the OBCA, no filing with,
and no permit, authorization, consent or approval of, any Governmental Authority
or other third party is necessary for the consummation by Cascade of the
transactions contemplated by this Agreement, except where the failure to make
such filing or obtain such authorization, consent or approval would not have a
Material Adverse Effect. Subject to obtaining such approvals and making such
filings, neither the execution and delivery of this Agreement by Cascade nor the
consummation by Cascade of the transactions contemplated hereby, nor compliance
by Cascade with any of the provisions hereof, will (a) result in any violation
of any provision of the Restated Articles of Incorporation or Bylaws of Cascade
or any Cascade Subsidiary, (b) violate any Applicable Law to which Cascade or
any of the Cascade Subsidiaries is subject or by which any of their respective
properties is bound or (c) except as set forth on Schedule 4.4, result in a
violation or breach of, or constitute (with or without due notice or lapse of
time or both) a default or give rise to a right of any Person to terminate,
cancel or accelerate the payment or performance of any liability, obligation or
commitment under any contract (including any Contract listed in Schedule 4.13)
to which Cascade or any of the Cascade Subsidiaries is a party, or by which any
of their respective properties are bound, except, in the case of clauses
(b) and (c) above, where such violation, breach, default or right of
termination, cancellation or acceleration would not have a Material Adverse
Effect.
4.5 FINANCIAL STATEMENTS; SEC REPORTS.
(a) Cascade has furnished the Parent with (i) a consolidated balance
sheet of Cascade as of January 31, 2000 and statements of income, changes in
shareholders' equity and cash flows of Cascade for the year then ended, together
with the related audit report of PricewaterhouseCoopers LLP, and (ii) an
unaudited consolidated balance sheet of Cascade as of July 31, 2000 and
statements of income, changes in shareholders' equity and cash flows of Cascade
for the six-month period ended July 31, 2000. All such financial statements are
referred to herein collectively as the "Financial Statements." The Financial
Statements (including any related schedules or notes) have been prepared in
accordance with GAAP throughout the periods involved, except that the unaudited
financial statements are subject to year-end adjustments and do not contain
detailed footnotes. The balance sheets included in the Financial Statements
fairly present, in all material respects, the financial position of Cascade and
the Cascade Subsidiaries as at the dates thereof, and the consolidated
statements of income, changes in shareholders' equity and cash flows included in
the Financial Statements fairly present, in all material respects, the results
of the operations, changes in shareholders' equity and cash flows, respectively,
of Cascade and the Cascade Subsidiaries for the periods indicated.
(b) Cascade has filed all forms, reports, amendments to reports,
statements and schedules with the SEC required to be filed pursuant to the
Exchange Act, and the regulations of the SEC thereunder, since January 1, 1998.
As of their respective dates and, if amended or superseded by a filing prior to
the date of this Agreement or the Closing Date, then as of the date of such
filing, all reports (including the financial statements included or incorporated
therein) filed by Cascade with the SEC (collectively, the "SEC Reports")
complied in all material respects with all applicable requirements of the
Exchange Act and the regulations of the SEC thereunder applicable to such SEC
Reports, and did not contain any untrue statement of a material fact or omit to
state a material fact
A-10
<PAGE>
required to be stated therein or necessary in order to make the statements made
therein, in light of the circumstances under which they were made, not
misleading.
4.6 UNDISCLOSED LIABILITIES. Except (a) to the extent reflected or
reserved against in the January 31, 2000 balance sheet of Cascade included in
the Financial Statements, (b) to the extent disclosed in the SEC Reports,
(c) to the extent incurred in the ordinary course of business consistent with
past practice since January 31, 2000, (d) to the extent set forth on
Schedule 4.6, or (e) for obligations of Cascade arising in the ordinary course
of the performance of its responsibilities under any Contracts listed on
Schedule 4.13 or any agreement which is not required to be listed on
Schedule 4.13 because of the limitations set forth in Section 4.13, neither
Cascade nor any Cascade Subsidiary has any liabilities or obligations of any
nature, whether liquidated, unliquidated, accrued, absolute, contingent or
otherwise which would have a Material Adverse Effect.
4.7 GOVERNMENTAL APPROVALS AND AUTHORIZATIONS. All approvals, permits,
qualifications, authorizations, licenses, franchises, consents, orders,
registrations or other approvals (collectively, the "Governmental Approvals") of
all Governmental Authorities which are necessary in order to permit Cascade and
the Cascade Subsidiaries to carry on their respective businesses have been
obtained and are in full force and effect, except where the failure to obtain
such approval, permit, qualification, authorization, license, franchise,
consent, order, registration or other approval, or the failure to be in full
force and effect, would not have a Material Adverse Effect. There has been no
violation, cancellation, suspension or revocation of any such Governmental
Approval, except for any such violation, cancellation, suspension or revocation
which would not have a Material Adverse Effect. This Section 4.7 does not relate
to environmental matters, which are the subject of Section 4.21.
4.8 COMPLIANCE WITH LAWS. Except for any such violations, breaches or
defaults which would not have a Material Adverse Effect, neither Cascade nor any
Cascade Subsidiary is in conflict with or in violation or breach of or default
under (a) any provision of its organizational documents or (b) to the Knowledge
of Cascade, Applicable Law, and, since January 31, 2000, neither Cascade nor any
Cascade Subsidiary has to its Knowledge received any written notice alleging any
such conflict, violation, breach or default. This Section 4.8 does not relate to
environmental matters, which are the subject of Section 4.21.
4.9 ABSENCE OF CERTAIN PAYMENTS. Neither Cascade, any Cascade Subsidiary,
or any director, officer, employee or agent of, or consultant or other
representative of, Cascade or any Cascade Subsidiary, or any other Person
authorized to act on behalf thereof, has unlawfully offered, paid or agreed to
pay, directly or indirectly, any money or anything of value to or for the
benefit of any individual who is or was an official or employee or candidate for
office of any Governmental Authority, or any employee or agent of any customer
or supplier of Cascade or any Cascade Subsidiary, except for any such offer,
payment or agreement to pay which would not individually or in the aggregate
have a Material Adverse Effect and would not reasonably be expected to subject
Cascade or any Cascade Subsidiary to any damage or penalty in any civil,
criminal or governmental litigation or proceeding.
4.10 REAL PROPERTY. Schedule 4.10 sets forth a complete list of (a) all
real property and all interests in real property owned in fee by Cascade or the
Cascade Subsidiaries (individually, an "Owned Property") and (b) all real
property and all interests in real property leased by Cascade or the Material
Cascade Subsidiaries (individually, "Leased Property;" and together with the
Owned Property, the "Real Property"). Cascade and the Cascade Subsidiaries have
(a) good, marketable and insurable fee title to all Owned Property, and
(b) good valid leasehold interests in all Leased Property, and in the case of
the Owned Property and those leasehold estates set forth on Schedule 4.10, such
title is free and clear of any Liens, except (i) those created or permitted
under the credit agreements listed on Schedule 4.13, (ii) as disclosed on
Schedule 4.10, and (iii) other easements, rights of way and immaterial Liens,
charges, assessments or encumbrances that do not interfere with the use of the
Real Property in the normal conduct of the business of Cascade and the Cascade
Subsidiaries and that do
A-11
<PAGE>
not materially impair the value of the Real Property (collectively, the
"Permitted Liens"). Complete and correct copies of each deed or lease relating
to the Real Property described on Schedule 4.10 have been furnished or made
available to the Parent. The current use and operation of the Real Property does
not violate in any material respect any instrument of record affecting the Real
Property. Except as disclosed on Schedule 4.10, no damage or destruction has
occurred with respect to any of the Real Property since January 31, 2000 that
would individually or in the aggregate materially impair the continued use or
operation of the Owned Property or the Leased Property. To the Knowledge of
Cascade, the Owned Property is in compliance with all Real Estate Laws and
neither Cascade nor any Cascade Subsidiary has received any written notice of
violation or claimed violation of any Real Estate Law, in either case except
where such violation or lack of compliance would not have a Material Adverse
Effect. Except as disclosed on Schedule 4.10, neither Cascade nor any Cascade
Subsidiary is obligated under or a party to any option, right of first refusal
or other contractual right to purchase, acquire, sell or dispose of any Real
Property. Neither Cascade nor any Cascade Subsidiary is a lessor, sublessor or
grantor under any lease, sublease or other instrument granting to another Person
any right to the possession, lease, occupancy or enjoyment of the Real Property,
other than pursuant to the agreements listed under the captions "Cascade
Subleases" and "Miscellaneous Encumbrances Upon Real Property" on Schedule 4.10
and except where such right to possession, lease, occupancy or enjoyment of the
Real Property would not materially interfere with the use of the Real Property
in the normal conduct of the business of Cascade and the Cascade Subsidiaries.
This Section 4.10 does not relate to environmental matters, which are the
subject of Section 4.21.
4.11 PERSONAL PROPERTY. Cascade and each of the Cascade Subsidiaries has
good and valid title to all tangible personal property and assets which it owns,
including the material tangible personal property reflected in the balance sheet
included in the Financial Statements as being owned by Cascade or such Cascade
Subsidiary, as the case may be, except for such tangible personal property and
assets disposed of in the ordinary course of business, consistent with past
practice, since January 31, 2000.
4.12 INTELLECTUAL PROPERTY. Cascade and each of the Cascade Subsidiaries
possesses all patents, trademarks, service marks, trade names, copyrights and
licenses that are necessary for the use or ownership of its respective
properties and assets, and the maintenance and operation of its respective
businesses as currently conducted. Neither Cascade nor any of the Cascade
Subsidiaries uses any registered trademarks, trade names, copyrights or patents
(or has applications therefor pending) in connection with their respective
businesses, except those set forth on Schedule 4.12 (collectively referred to as
the "Intellectual Property"). Except as set forth on Schedule 4.12, the
Intellectual Property is owned by Cascade or a Cascade Subsidiary, as indicated
on Schedule 4.12, and is not subject to any license, royalty arrangement or
dispute. To the Knowledge of Cascade, no registered trademark or trade name used
by Cascade or any Cascade Subsidiary infringes on any trademark or trade name in
any state or country in which such trademark or trade name is used by Cascade or
such Cascade Subsidiary. To the Knowledge of Cascade and except as set forth on
Schedule 4.12, neither Cascade nor any Cascade Subsidiary has received written
notification of infringement of any patent, copyright, trademark or trade name,
or any application therefor, from any Person.
4.13 CONTRACTS. Schedule 4.13 lists (or describes in the case of oral
contracts) each contract, note, debt instrument, lease, sublease, covenant not
to compete, supply agreement, guarantee, licensing agreement, partnership
agreement, joint venture agreement, employment agreement (other than agreements
set forth on Schedule 4.14), collective bargaining agreement or other agreement
or commitment of any kind, whether written or oral, to which Cascade or any
Cascade Subsidiary is a party (other than agreements set forth on
Schedule 4.14) or by which any of them is bound (each, a "Contract"), provided
that such Schedule need not list any written or oral Contract or related written
Contracts under which the aggregate payments required to be made by or to
Cascade or any Cascade Subsidiary over the life of the Contract or Contracts are
less than $250,000. Complete copies of every written Contract listed on
Schedule 4.13 have been previously made available to the Parent, except as
A-12
<PAGE>
otherwise noted on Schedule 4.13. Each Contract is valid and binding on Cascade
(or a Cascade Subsidiary, as applicable) and is in full force and effect. Each
of Cascade and the Cascade Subsidiaries has performed all material obligations
required to be performed by it to date under the Contracts listed on
Schedule 4.13, and neither Cascade nor any Cascade Subsidiary has received
written notice that it is in material default in the performance of any of its
obligations under any Contract listed on Schedule 4.13, and to the Knowledge of
Cascade, no other Person is in material default in the performance of any of its
obligations under any Contract.
4.14 EMPLOYEE BENEFIT PLANS.
(a) Schedule 4.14 contains a true and complete list of each material
"employee benefit plan," as such term is defined in Section 3(3) of ERISA, and
each material bonus, incentive or deferred compensation, severance, retention,
change in control, equity incentive or other material employee benefit plan,
program or policy maintained or contributed to by Cascade or any Cascade
Subsidiary for the benefit of its respective employees or with respect to which
Cascade or a Cascade Subsidiary is obligated to contribute on behalf of its
employees (collectively, the "Plans"). In addition, Schedule 4.14 sets forth a
true and complete list of all employment and noncompetition agreements with past
or present employees of Cascade or any Cascade Subsidiary which are currently in
effect. Cascade has made available to the Parent true and complete copies of all
Plans; all related trust agreements; the most recent actuarial and trust reports
prepared for any such Plan; the most recent Form 5500 filed in respect of each
such Plan and all schedules thereto; the most recent determination letter issued
in respect of each such Plan which is a retirement plan qualified under
Section 401(a) of the Code; and the current summary plan descriptions with
respect to such Plans for which such a description has been distributed.
(b) Each Plan intended to be qualified under Section 401(a) of the Code
has received a determination letter from the IRS as to the qualification thereof
under Section 401(a) of the Code; and, to the Knowledge of Cascade, no amendment
has been made to any such Plan since the date of such determination letter that
has or would result in the disqualification of such Plan under Section 401(a) of
the Code. Each of the Plans has been operated and administered in all respects
in accordance with Applicable Law, including but not limited to ERISA and the
Code, except where any such noncompliance would not have a Material Adverse
Effect. There are no material pending or, to the Knowledge of Cascade,
threatened claims by or on behalf of any of the Plans or by any employee
participating therein (other than routine claims for benefits). All
contributions required to have been made by Cascade and the Cascade Subsidiaries
to any Plan pursuant to applicable law (including, without limitation, ERISA and
the Code) have been made on a timely basis.
(c) Neither Cascade nor any Cascade Subsidiary has, within the
preceding six years, withdrawn in a complete or partial withdrawal from any
multiemployer plan (as defined in Section 4001(a)(3) of ERISA) or multiple
employer plan (within the meaning of Section 4063 or 4064 of ERISA) or incurred
any liability to the Pension Benefit Guaranty Corporation pursuant to Title IV
of ERISA, which would have a Material Adverse Effect.
(d) No Plan is subject to Section 302 or Title IV of ERISA or
Section 412 of the Code. No Plan is a multiemployer plan within the meaning of
Section 4001(a)(3) of ERISA or a multiple employer plan within the meaning of
Section 4063 or 4064 of ERISA.
(e) No other trade or business, whether or not incorporated, is
currently or, within the preceding six years, has been required to be treated as
a "single employer" together with Cascade pursuant to clause (b), (c) or (m) of
Section 414 of the Code.
A-13
<PAGE>
(f) Neither Cascade nor any Cascade Subsidiary has any obligations to
provide health and life insurance benefits to retirees or other former or
terminated employees under any Plan, except as set forth on Schedule 4.14(f) and
except as required under Section 4980B of the Code or Section 601 of ERISA.
Cascade and the Cascade Subsidiaries have complied in all material respects with
Section 4980B of the Code and Section 601 of ERISA.
(g) Except as set forth in Schedule 4.14(g), the consummation of the
transactions contemplated by this Agreement will not (i) entitle any employee of
Cascade or any Cascade Subsidiary to severance pay, (ii) accelerate the time of
payments or vesting or trigger any payment of compensation or benefits under,
increase the amount payable or trigger any other material obligation pursuant
to, any Plan, (iii) result in any breach or violation of, or a default under,
any of the Plans or (iv) result in any "excess parachute payment" within the
meaning of Section 280G of the Code.
4.15 LABOR MATTERS. Except as described on Schedule 4.15, since
December 31, 1998, there have been no work stoppages or labor difficulties
relating to employees of Cascade or the Cascade Subsidiaries that have had or
are likely to have a Material Adverse Effect. There are no labor disputes
currently subject to any unfair labor practice complaint, grievance procedure,
arbitration or litigation, nor is there a default or any event which, with
notice or the passage of time or both, would become a default, under any
agreement with any labor union or association representing employees of Cascade
or any Cascade Subsidiary, except for any such dispute, procedure, arbitration,
litigation or default which would not have a Material Adverse Effect. There are
no strikes, picketing, work stoppages or representation petitions pending or, to
the Knowledge of Cascade, threatened with respect to any employee of Cascade or
any Cascade Subsidiary that are likely to have a Material Adverse Effect.
4.16 ACTIONS PENDING. Except as set forth in Schedule 4.16, there is no
material claim, litigation, proceeding or investigation pending or, to the
Knowledge of Cascade, threatened in writing, against or affecting the business
or any of the assets of Cascade or any Cascade Subsidiary that is likely either
individually or in the aggregate to have a Material Adverse Effect, or which
seeks to enjoin or prohibit, or otherwise questions the validity of, any action
taken or to be taken in connection with this Agreement.
4.17 AFFILIATE TRANSACTIONS. Except as set forth on Schedule 4.17, there
are no existing agreements, understandings or arrangements between Cascade or
any Cascade Subsidiary, on the one hand, and any Affiliate of Cascade or any
Cascade Subsidiary, on the other hand.
4.18 ABSENCE OF CHANGES OR EVENTS. Except for any change or effect
resulting from (a) changes in general economic conditions, (b) the performance
of this Agreement and compliance with the covenants set forth herein, or
(c) general changes or developments in the industries in which Cascade or the
Cascade Subsidiaries operate, since July 31, 2000, each of Cascade and the
Cascade Subsidiaries has conducted its business only in the ordinary and usual
course and there has not been any adverse change in the business, assets,
properties, liabilities, results of operations or financial condition of Cascade
and the Cascade Subsidiaries which would have a Material Adverse Effect.
4.19 TAXES. Except as set forth on Schedule 4.19, or as reflected or
reserved against in the January 31, 2000 balance sheet included in the Financial
Statements, (a) Cascade and the Cascade Subsidiaries have (or by the Closing
Date will have) duly and timely filed or caused to be filed all tax returns that
are required to be filed on or before the Closing Date (collectively, the
"Returns") or the time for filing such returns shall have been validly extended
to a date after the Closing Date, except to the extent that the failure to so
file would not have a Material Adverse Effect; (b) Cascade and the Cascade
Subsidiaries have paid all Taxes shown on such Returns, and have (or by the
Closing Date will have) withheld and remitted to the appropriate Taxing
Authority, all Taxes that are required to be withheld and remitted on or before
the Closing Date, except to the extent that the failure to so pay, withhold or
remit would not have a Material Adverse Effect; (c) to the Knowledge of Cascade,
no
A-14
<PAGE>
claim in writing by the IRS or any other Taxing Authority for assessment or
collection of Taxes, that are or may become payable by Cascade or any Cascade
Subsidiary or chargeable as a Lien upon the assets thereof, has been received by
Cascade or any Cascade Subsidiary; (d) the taxable years of Cascade and the
Cascade Subsidiaries through the taxable year ended 1996 have been examined and
closed; (e) neither Cascade nor any Cascade Subsidiary has been granted any
extension or waiver of the limitation period applicable to any Returns, which
period (after giving effect to such extension or waiver) has not yet expired;
(f) to the Knowledge of Cascade, neither Cascade nor any Cascade Subsidiary has
received any notice in writing of any claim, audit, action, suit, proceeding or
investigation now pending against or with respect to Cascade or any Cascade
Subsidiary in respect of any Tax; (g) there are no requests for rulings or
determinations in respect of any Tax pending between Cascade or any Cascade
Subsidiary, on the one hand, and any Taxing Authority on the other; and
(h) neither Cascade nor any Cascade Subsidiary has (i) been a member of an
affiliated group, or (ii) filed or been included in a combined, consolidated or
unitary Return, in each case involving group members other than Cascade and the
Cascade Subsidiaries. Schedule 4.19 contains a list of states, territories and
jurisdictions (whether foreign or domestic) with respect to which any income Tax
Return has been filed by Cascade or any Cascade Subsidiary within the last three
taxable years. No election under Section 341(f) of the Code has been made to
treat Cascade or any Cascade Subsidiary as a "consenting corporation" as defined
in such Section 341(f). Neither Cascade nor any Cascade Subsidiary is or has
been a United States real property holding corporation within the meaning of
Section 897(c)(2) of the Code.
For purposes of this Agreement, "TAX" means any net income, alternative or
add-on minimum tax, gross income, gross receipts, sales, use, ad valorem, value
added, transfer, franchise, profits, license, withholding on amounts paid to or
by Cascade or any Cascade Subsidiary, payroll, employment, excise, severance,
stamp, occupation, premium, property, environmental or windfall profits tax,
custom duty or other tax, governmental fee or other like assessment or charge of
any kind whatsoever, together with any interest or penalty, addition to tax or
additional amount imposed by any Governmental Authority (domestic or foreign) (a
"Taxing Authority").
4.20 INSURANCE. Schedule 4.20 lists all material insurance policies
maintained by, or for the benefit of, Cascade or any Cascade Subsidiary, as an
insured. All such insurance policies are in full force and effect, all premiums
due thereon have been paid and no notice of termination of any such policy has
been received by the insured thereunder.
4.21 ENVIRONMENTAL MATTERS. Except as set forth on Schedule 4.21 and in
the environmental reports listed thereon, Cascade's and each Cascade
Subsidiary's operation and use of its assets and the Real Property are to the
Knowledge of Cascade in compliance in all respects with all Environmental Laws,
except to the extent that any such noncompliance would not individually or in
the aggregate have a Material Adverse Effect. Except as set forth on
Schedule 4.21 or in the environmental reports listed thereon, to the Knowledge
of Cascade, Cascade and the Cascade Subsidiaries have obtained all environmental
or human health permits necessary for the operation of the business of Cascade
and the Cascade Subsidiaries as presently conducted, and all such permits are in
full force and effect and Cascade and each Cascade Subsidiary are in compliance
in all respects with the terms and conditions of each such permit, except, in
each case, to the extent that any such failure to obtain or noncompliance would
not individually or in the aggregate have a Material Adverse Effect. Except as
set forth on Schedule 4.21, Cascade and the Cascade Subsidiaries have not been
notified that they are potentially responsible parties pursuant to any
Environmental Laws and, to the Knowledge of Cascade, there is no investigation
pending or threatened at any location where Cascade or the Cascade Subsidiaries
transported or arranged for the transportation of Hazardous Materials. Except as
set forth on Schedule 4.21 and in the environmental reports listed thereon, to
the Knowledge of Cascade there are no underground storage tanks containing
Hazardous Materials, equipment containing polychlorinated biphenyls, or asbestos
containing materials on, under or within the Real Property.
A-15
<PAGE>
4.22 ABSENCE OF CONFLICTS OF INTEREST. Except as set forth on
Schedule 4.22, no officer, director or Affiliate of Cascade or any Cascade
Subsidiary has any material interest in any material contract or material
property (real or personal), tangible or intangible, used in the business of
Cascade or any Cascade Subsidiary.
4.23 FAIRNESS OPINION; FINANCIAL ADVISOR. The Board has received the
written opinion of Gleacher & Co. LLC, financial advisor to the Special
Committee, dated the date of this Agreement, to the effect that the
consideration to be received by the shareholders of Cascade (other than Parent
and its affiliates) in the Merger is fair to such shareholders from a financial
point of view, a copy of which opinion has been delivered to Parent. Except for
Gleacher & Co. LLC, neither Cascade nor any Cascade Subsidiary has employed, or
is subject to the valid claim of, any broker, finder or other financial
intermediary in connection with the transactions contemplated by this Agreement
or the transactions contemplated hereby, which might be entitled to a fee or
commission in connection herewith or therewith.
4.24 FOREIGN PERSON. Cascade is not a foreign person within the meaning of
Section 1445(f)(3) of the Code.
4.25 VOTE REQUIRED. The affirmative vote of the holders of a majority of
the outstanding Cascade Common Stock and the votes attributable to the share of
Cascade Special Voting Stock, voting together as a single voting group, are the
only vote of holders of any class or series of Cascade capital stock necessary
to approve this Agreement and the transactions contemplated hereby.
ARTICLE 5
REPRESENTATIONS AND WARRANTIES
OF THE PARENT AND ACQUISITION CO.
The Parent and Acquisition Co., jointly and severally, represent and warrant
to Cascade as follows:
5.1 ORGANIZATION AND STANDING. Each of CAC-I and CAC-II is a corporation
duly organized and in good standing under the laws of the State of Delaware that
has the power and authority to carry on its business as presently conducted.
Acquisition Co. is a corporation, duly organized, validly existing and in good
standing under the laws of the State of Oregon and has all requisite corporate
power and authority to carry on its business as presently conducted.
5.2 AUTHORIZATION AND BINDING OBLIGATION. Each of the Parent and
Acquisition Co. has all necessary corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by the Parent and Acquisition Co.
and the consummation by the Parent and Acquisition Co. of the transactions
contemplated hereby have been duly and validly authorized and approved by all
necessary corporate action on the part of each of the Parent and Acquisition Co.
and no other corporate action or other proceeding on the part of the Parent or
Acquisition Co. is necessary to authorize this Agreement or the consummation of
the transactions contemplated hereby. This Agreement has been duly executed and
delivered by each of the Parent and Acquisition Co. and constitutes a valid and
binding obligation of the Parent and Acquisition Co., enforceable against the
Parent and Acquisition Co. in accordance with its terms, except as may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium or
similar rights of creditors generally and by general principles of equity.
5.3 CONSENTS AND APPROVALS; NO CONFLICTS. Except for applicable
requirements of the HSR Act and filing and recordation of the Articles of Merger
as required by the OBCA, no filing with, and no permit, authorization, consent
or approval of, any Governmental Authority is necessary for the consummation by
the Parent or Acquisition Co. of the transactions contemplated by this
Agreement. Subject to obtaining such approval and making such filings, neither
the execution and delivery of this Agreement nor the consummation of the
transactions contemplated hereby, nor compliance by the
A-16
<PAGE>
Parent or Acquisition Co. with any of the provisions hereof will (a) result in
any violation of any provision of the organizational documents of the Parent or
Acquisition Co., (b) violate any Applicable Law to which the Parent or
Acquisition Co. is subject or by which any of their respective properties is
bound, or (c) result in a material violation or breach of, or constitute (with
or without due notice or lapse of time or both) a material default (or give rise
to any right of termination, cancellation or acceleration) under, any material
contract, agreement, note, bond, mortgage, indenture, license, lease, franchise,
permit, employee benefit plan or other instrument or obligation to which the
Parent or Acquisition Co. is a party, or by which either of them or any of their
respective properties is bound, except in the case of clauses (b) and
(c) above, where such violation, breach, default, or right of termination,
cancellation or acceleration would not have a material adverse effect on their
ability to perform their respective obligations hereunder.
5.4 LITIGATION. There is no claim, litigation, proceeding or investigation
pending or, to the best of the Parent's or Acquisition Co.'s knowledge,
threatened in writing, which seeks to enjoin or prohibit, or otherwise questions
the validity of, any action taken or to be taken by the Parent or Acquisition
Co. in connection with this Agreement or which would have a material adverse
effect on their ability to perform their respective obligations hereunder.
5.5 FINDERS AND INVESTMENT BANKERS. Except as provided in Schedule 5.5,
all negotiations relating to this Agreement and the transactions contemplated
hereby have been carried on without the intervention of any Person acting on
behalf of the Parent or Acquisition Co. in such manner as to give rise to any
valid claim against Cascade for any broker's fee or finder's fee or similar
compensation.
5.6 FINANCING. Parent has received and delivered to the Special Committee
a commitment letter from Fleet National Bank, N.A. dated October 16, 2000,
addressed to TD Capital Group Limited, Lift Technologies Inc. and Ontario
Municipal Employees Retirement Board, and a commitment letter from TD
Capital-Mezzanine Partners dated October 16, 2000, addressed to TD Capital Group
Limited (the "Commitment Letters"), whereby Fleet National Bank, N.A. and TD
Capital-Mezzanine Partners have committed, upon the terms and subject to the
conditions set forth therein, which terms and conditions are satisfactory to
Parent, to provide debt financing in the aggregate amount of $238 million (of
which $164 million shall be in the form of senior indebtedness). Parent has
received and delivered to the Special Committee a letter dated October 17, 2000
(the "Parent Commitment Letter") addressed to Parent whereby William J.
Harrison, TD Capital Group Limited and the Ontario Municipal Employees
Retirement Board have committed, upon the terms and subject to the conditions
set forth in the equity commitment letter and term sheet attached thereto, to
provide a contribution in the form of common equity financing to Acquisition Co.
in an amount of up to $100 million in cash, plus stock and assets (which
contribution, together with the amounts to be provided pursuant to the
Commitment Letters, being hereinafter referred to as the "Financings"). Each of
the Commitment Letters and the Parent Commitment Letter is in effect on the date
hereof and has not been amended or modified and there is no breach or default
existing (or which with notice or lapse of time or otherwise may exist)
thereunder. The aggregate proceeds of the Financings are sufficient to pay the
aggregate Per Share Price and the Option Consideration, to repay the existing
indebtedness of the Company and its Subsidiaries (excluding any indebtedness the
parties agree in writing shall not be repaid) and to pay all fees and expenses
related to the transactions contemplated by this Agreement. Parent and
Acquisition Co. acknowledge that, in entering into this Agreement, Cascade is
relying upon the commitments of William J. Harrison, TD Capital Group Limited
and the Ontario Municipal Employees Retirement Board set forth in the Parent
Commitment Letter.
5.7 VOTING AGREEMENT. W. J. Harrison Holdings, Ltd. and William J.
Harrison have executed and delivered to Cascade voting agreements which provide
that such persons will vote the Exchangeable Shares and any other shares of
Cascade Capital Stock owned by them in favor of approval of the Merger.
A-17
<PAGE>
ARTICLE 6
COVENANTS
6.1 SHAREHOLDER APPROVALS AND CASCADE PROXY STATEMENT.
(a) As soon as is reasonably practicable after execution of this
Agreement, Cascade shall take all action necessary, in accordance with the OBCA
and its Restated Articles of Incorporation and Bylaws, to convene a meeting of
its shareholders as promptly as practicable to consider and vote upon the Merger
(the "Cascade Shareholders Meeting"). Subject to the fiduciary obligations of
the Board under Applicable Law as advised by independent counsel, (i) the Proxy
Statement shall contain the recommendation of the Board that the shareholders of
Cascade vote to approve the Merger and this Agreement, and (ii) Cascade shall
use its best efforts to solicit from its shareholders proxies in favor of such
adoption and approval and to take all other action necessary or desirable to
secure the vote or consent of its shareholders as required by the OBCA to effect
the Merger. At the Cascade Shareholders Meeting, Parent, its direct and indirect
subsidiaries and Acquisition Co. shall vote, and shall cause William J. Harrison
Holdings Ltd. and its Affiliates to vote, all of the shares of Cascade Common
Stock and the share of Cascade Special Voting Stock then owned by any of them in
favor of the Merger.
(b) As soon as is reasonably practicable after execution of this
Agreement, Cascade shall (with the cooperation of Parent and Acquisition Co.)
(i) prepare and file with the SEC a preliminary proxy statement, together with a
form of proxy, with respect to the Cascade Shareholders Meeting and, after
consultation with the Parent, promptly respond to any SEC comments with respect
to such preliminary proxy statement, and (ii) subject to compliance with the
rules and regulations of the SEC, mail a definitive proxy statement to the
shareholders of Cascade. The term "Proxy Statement" shall mean such proxy
statement at the time it initially is mailed to Cascade's shareholders and all
amendments or supplements thereto, if any, similarly filed and mailed. None of
the information provided and to be provided by Parent, Acquisition Co. and
Cascade, respectively, for use in the Proxy Statement shall, on the date the
Proxy Statement is first mailed to the Cascade shareholders and on the date of
the Cascade Shareholders Meeting, be false or misleading with respect to any
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances in which they were made, not misleading, and Parent, Acquisition
Co. and Cascade each agree to correct any information provided by it for use in
the Proxy Statement which shall have become false or misleading in any material
respect. Cascade represents that the Proxy Statement shall comply as to form in
all material respects with all applicable requirements of United States
securities laws.
6.2 FILINGS; COOPERATION.
(a) Parent, Acquisition Co. and Cascade agree (i) to cooperate with
each other in determining whether any filings are required to be made or
consents required to be obtained in any jurisdiction in connection with the
consummation of the transactions contemplated by this Agreement, (ii) to
cooperate with each other to properly prepare and file any filings required
under any Applicable Law relating to the Merger and the transactions
contemplated herein, including the filings with the SEC and the filings required
under the HSR Act (collectively, the "Filings"), and (iii) to pursue all
reasonable commercial efforts to obtain promptly the satisfaction of the
conditions to the closing of the Merger. The Parent and Acquisition Co., on the
one hand, and Cascade, on the other, shall promptly notify the other of the
receipt of any comments on, or any request for amendments or supplements to, the
Filings by any governmental official, and each of Cascade, the Parent and
Acquisition Co. will supply the other with copies of all correspondence between
it and each of its subsidiaries and representatives, on the one hand, and any
appropriate governmental official, on the other hand, with respect to the
Filings.
A-18
<PAGE>
(b) Subject to compliance with Applicable Law, from the date hereof
until the Effective Time, each of Cascade and the Parent shall confer on a
regular and frequent basis with one or more representatives of the other party
to report Cascade's operational matters of materiality and the general status of
Cascade's ongoing operations and shall promptly provide the other party or its
counsel with copies of all Filings made by such party with any Governmental
Authority in connection with the Merger and the transactions contemplated
herein.
(c) Parent hereby agrees to use commercially reasonable efforts to
obtain the Financings, including using commercially reasonable efforts (i) to
negotiate definitive agreements with respect thereto and (ii) to satisfy all
conditions applicable to Parent in such definitive agreements. In the event any
portion of such financing becomes unavailable in the manner or from the sources
originally contemplated, Parent will use commercially reasonable efforts to
obtain any such portion from alternative sources on substantially comparable
terms. Parent will keep the Special Committee informed on a regular ongoing
basis of the status of its efforts to obtain such financing, and will notify
such committee immediately in the event any portion of such financing becomes
unavailable.
6.3 CONDUCT OF BUSINESS. During the period from the date hereof to the
Closing Date, Cascade covenants and agrees that it will and will cause the
Cascade Subsidiaries to carry on their businesses in the ordinary course of
business, in substantially the same manner as heretofore conducted, and will use
its reasonable commercial efforts consistent with past practices and policies to
preserve intact its and the Cascade Subsidiaries' present business organization,
keep available the services of their respective officers and key employees and
preserve their relationships with customers and suppliers and others having
business dealings with them, to the end that their goodwill and ongoing business
shall be maintained following the Closing. Without limiting the generality of
the foregoing, except as expressly permitted by this Agreement or with the prior
written consent of the Parent, such consent not to be unreasonably withheld or
delayed, or as set forth on Schedule 6.3, Cascade covenants and agrees that it
will not, and it will not permit any Cascade Subsidiary to do, or agree to do,
on or after the date hereof, any of the following, on or before the Closing:
(a) amend their respective articles of incorporation or bylaws or other
organizational documents;
(b) rescind, modify, amend or otherwise change or affect any of the
resolutions of the Board recommending adoption of this Agreement and
authorization of the Merger;
(c) issue, sell, transfer, assign, pledge, convey or dispose of any
capital stock or other equity interest, including, without limitation, any
subscriptions, options, warrants, calls, conversions or other rights,
agreements, commitments, arrangements or understandings of any kind obligating
Cascade or any Cascade Subsidiary, contingently or otherwise, to issue or sell,
or cause to be issued or sold, any capital stock or other equity interest of
Cascade or any Cascade Subsidiary;
(d) split, combine or reclassify any shares of any class of its capital
stock, declare, set aside or pay any dividend or other distribution (whether in
cash, stock or property or any combination thereof) in respect of any class of
its capital stock, or redeem or otherwise acquire any shares of such capital
stock;
(e) write off any receivables, except in the ordinary course of
business consistent with past practice;
A-19
<PAGE>
(f) (i) sell, assign, lease or otherwise transfer or dispose of any
material assets or (ii) acquire or agree to acquire any material business or
assets, except in the ordinary course of business consistent with past practice;
(g) (i) except in the ordinary course of business (including reduction
of accruals related to environmental matters) consistent with past practice
under existing lines of credit, create, incur or assume any long-term debt,
including obligations in respect of capital leases, or create, incur, assume,
maintain or permit to exist any short-term borrowing in an aggregate amount for
Cascade and the Cascade Subsidiaries in excess of $5 million, (ii) make or
commit to make capital expenditures in excess of $250,000 each or $5 million in
the aggregate; (iii) assume, guarantee, endorse or otherwise become liable or
responsible (whether directly, contingently or otherwise) for the obligations of
any other Person, except for assumptions, guarantees or endorsements by Cascade
of the obligations of any Cascade Subsidiary in the ordinary course of business
consistent with past practice; (iv) make any loans, advances or capital
contributions to, or investments in, any other Person (other than customary
loans or advances in the ordinary course of business consistent with past
practice) to employees not to exceed $100,000 in the aggregate and extensions of
credit made to customers on a trade receivable basis in the ordinary course of
business consistent with past practice; (v) create, assume or permit to exist
any Lien upon their assets, except for those in existence on the date of this
Agreement and except for those additional Liens created in the ordinary course
of business consistent with past practice; or (vi) amend in any material respect
or terminate any Contract;
(h) (i) increase or modify or agree to increase or modify the
compensation, bonuses or other benefits or perquisites of any employee of
Cascade or any Cascade Subsidiary, except for salary increases granted in the
ordinary course of business consistent with past practice, or (ii) pay or commit
to pay any compensation, bonus, pension or other retirement benefit or
allowance, fringe benefit or other benefit not required by the terms of an
existing Plan or collective bargaining agreement as in effect on the date hereof
or otherwise in the ordinary course of business consistent with past practice;
(i) make any new elections, or make any changes to current elections,
with respect to Taxes;
(j) fail to maintain their books and records in accordance with GAAP;
(k) take or fail to take any action that would cause any of its
representations and warranties not to be true and correct on the Closing Date in
the manner required by Section 7.3(b); or
(l) enter into any agreement, contract, commitment or arrangement to do
any of the foregoing.
6.4 ADDITIONAL AGREEMENTS. Subject to the terms and conditions herein
provided, each of the parties hereto agrees to use (and Cascade shall cause the
Cascade Subsidiaries to use) their commercially reasonable efforts to take, or
cause to be taken, all actions and to do, or cause to be done, all things
necessary, proper or advisable to consummate and make effective as promptly as
practicable the transactions contemplated by this Agreement and to cooperate
with one another in connection with the foregoing, including using its
commercially reasonable efforts to obtain all necessary consents, approvals and
authorizations as are required to be obtained under Applicable Law, to defend
all lawsuits or other legal proceedings challenging this Agreement or the
consummation of the transactions contemplated hereby, to cause to be lifted or
rescinded any injunction or restraining order or other order adversely affecting
the ability of the parties to consummate the transactions contemplated hereby,
and to effect all necessary registrations and Filings.
A-20
<PAGE>
6.5 ACQUISITION PROPOSALS.
(a) From and after the date of this Agreement until the earlier of the
Effective Time or the termination of this Agreement in accordance with its
terms, Cascade shall not, directly or indirectly, through any officer, director,
employee, representative or agent, (i) solicit or initiate any inquiries or
proposals that constitute, or could reasonably be expected to lead to, a
proposal or offer for a merger, consolidation, share exchange, business
combination, sale of substantial assets, sale of shares of capital stock
(including without limitation pursuant to a tender offer) or similar transaction
or series of transactions involving Cascade, other than the transactions
contemplated by this Agreement (any of the foregoing inquiries or proposals
being referred to in this Agreement as an "Acquisition Proposal"), or
(ii) engage in negotiations or discussions concerning, or provide any non-public
information to any person or entity relating to, any Acquisition Proposal, or
(iii) agree to, approve or recommend to its shareholders any Acquisition
Proposal; PROVIDED, HOWEVER, that nothing contained in this Agreement shall
prevent Cascade, the Board or any committee thereof from (A) furnishing
non-public information to, or entering into discussions or negotiations with,
any person or entity in connection with an unsolicited bona fide written
Acquisition Proposal by such person or entity (including a new and unsolicited
Acquisition Proposal received by Cascade after the execution of this Agreement
from a person or entity whose initial contact with Cascade may have been
solicited by Cascade or on its behalf prior to the execution of this Agreement)
or recommending such an unsolicited bona fide written Acquisition Proposal to
the shareholders of Cascade, if and only to the extent that (1) such Acquisition
Proposal is not subject to any financing or material due diligence conditions
and the Board or any committee thereof believes in good faith (after
consultation with and based upon the advice of its financial advisor) that such
person or entity has the financial capacity to consummate such Acquisition
Proposal and such Acquisition Proposal would, if consummated, result in a
transaction more favorable to Cascade shareholders from a financial point of
view than the transaction contemplated by this Agreement (any such more
favorable Acquisition Proposal being referred to in this Agreement as a
"Superior Proposal") and the Board or any committee thereof determines in good
faith after consultation with and based upon the advice of outside legal counsel
that such action is necessary for the Board to comply with its fiduciary duties
to Cascade's shareholders under applicable law, and (2) prior to furnishing such
non-public information to, or entering into discussions or negotiations with,
such person or entity, Cascade receives from such person or entity an executed
confidentiality agreement on terms no less favorable to Cascade than those
contained in the Confidentiality Agreement, dated as of June 18, 2000, between
Cascade and TD Capital Group Limited or (B) complying with Rule 14e-2
promulgated under the Exchange Act with regard to an Acquisition Proposal.
Cascade will immediately notify the Parent of the existence of any proposal,
discussion, negotiation or inquiry received by Cascade, and Cascade will
immediately communicate to the Parent the terms of any proposal, discussion,
negotiation or inquiry which it may receive (and will immediately provide to the
Parent copies of any written materials received by Cascade in connection with
such proposal, discussion, negotiation or inquiry) and the identity of the party
making such proposal or inquiry or engaging in such discussion or negotiation.
Cascade will promptly provide to the Parent any non-public information
concerning Cascade provided to any other party which was not previously provided
to the Parent.
(b) In the event a Superior Proposal is received by the Board or any
committee thereof, and the Board or such committee proposes to endorse or accept
such Superior Proposal, the Board or such committee shall promptly advise Parent
of the terms of such Superior Proposal, and will not enter into any commitments
with respect to such Superior Proposal unless, within two Business Days of
providing Parent with the terms of such Superior Proposal, Parent does not
deliver to the Board or any committee thereof a written offer to amend the terms
of this Agreement to provide for terms and conditions (including the amount and
value of consideration hereunder) which are reasonably
A-21
<PAGE>
determined by the Board or any committee thereof to be, when taken in their
entirety, as favorable to Cascade as the Superior Proposal.
(c) Upon compliance with the foregoing, following receipt of a Superior
Proposal, the Board shall be entitled to withdraw, modify or refrain from making
its recommendation referred to in Section 6.1(a) and approve and recommend to
the shareholders of Cascade a Superior Proposal, and Cascade shall be entitled
to enter into an agreement with such third party concerning a Superior Proposal.
(d) Cascade shall be entitled to provide copies of this Section 6.5 to
third parties who, on an unsolicited basis after the date of this Agreement,
contact Cascade regarding an Acquisition Proposal.
6.6 PUBLIC ANNOUNCEMENTS. The Parent and Cascade will consult with one
another before issuing any press release or otherwise making any public
statement with respect to this Agreement or the Merger, and shall not issue any
such press release or make any such public statement prior to such consultation
without the consent of the Parent and Cascade, except based on the advice of
counsel for Cascade or the Parent, as the case may be, as required by Applicable
Law.
6.7 CONSENT OF THE PARENT. The Parent, as the sole shareholder of
Acquisition Co., by executing this Agreement hereby consents to the execution,
delivery and performance of this Agreement by Acquisition Co. and such consent
shall be treated for all purposes as a vote duly adopted at a meeting of the
shareholders of Acquisition Co. held for such purpose.
6.8 TRANSFER TAXES.
(a) Except as provided in Section 3.5(c), the Parent shall be
responsible for the payment of, and shall indemnify the Cascade shareholders
against, all Transfer Taxes arising out of or in connection with or attributable
to the transactions effected pursuant to this Agreement.
(b) As between the Cascade shareholders, on the one hand, and the
Parent, on the other hand, the party that has the primary responsibility under
Applicable Law for filing any Tax return required to be filed in respect of
Transfer Taxes shall prepare and timely file such Tax return, PROVIDED HOWEVER,
that such party's preparation of such Tax return shall be subject to the other
party's approval, which approval shall not be withheld or delayed unreasonably.
6.9 INDEMNIFICATION OF OFFICERS AND DIRECTORS; OFFICERS' AND DIRECTORS'
INSURANCE. The Parent agrees that for the entire period from the Effective Time
until at least six (6) years after the Effective Time (a) the Articles of
Incorporation and the Bylaws of the Surviving Corporation shall contain the
provisions with respect to indemnification (including advancement of expenses)
and exculpation from liability set forth in Cascade's Restated Articles of
Incorporation and Bylaws, as amended as of the date of this Agreement, which
provisions shall not be amended, repealed or otherwise modified during such
period in any manner that would adversely affect the rights thereunder of
individuals who on or prior to the Effective Time were directors, officers,
employees or agents of Cascade unless such modification is required by
Applicable Law and (b) the Surviving Corporation shall either (x) maintain in
effect Cascade's current directors' and officers' liability insurance covering
those persons who are currently covered on the date of this Agreement by
Cascade's directors' and officers' liability insurance policy or (y) purchase an
extended coverage or "tail" insurance policy having a policy limit equal to or
greater than the aggregate policy limit of such insurance and covering such
persons against claims made within six (6) years following the Effective Time,
provided that the Surviving Corporation shall not be obligated to pay in order
to maintain or procure insurance coverage pursuant to this paragraph an amount
per year in excess of 250% of the aggregate premiums paid by Cascade for the
policy period ending November 20, 2000 (exclusive of excess coverage obtained in
2000) for directors' and officers'
A-22
<PAGE>
liability insurance (and shall timely notify Cascade's former officers and
directors of any lapse in coverage).
6.10 NOTIFICATION OF CERTAIN MATTERS. Parent and Acquisition Co. shall
give prompt notice to Cascade and Cascade shall give prompt notice to Parent, of
the occurrence, or failure to occur, of any event, which occurrence or failure
to occur would be likely to cause (a) any representation or warranty of Cascade
or of Parent and Acquisition Co. contained in this Agreement to be untrue or
inaccurate in any material respect at any time from the date of this Agreement
to the Effective Time, or (b) any material failure of Parent and Acquisition Co.
or Cascade, as the case may be, or of any officer, director, employee or agent
thereof, to comply with or satisfy any covenant, condition or agreement to be
complied with or satisfied by it under this Agreement. The delivery of any
notice pursuant to this Section 6.10 shall not limit or otherwise affect the
remedies available hereunder to the party receiving such notice.
6.11 ACCESS TO INFORMATION. To the extent permitted by Applicable Law, and
upon reasonable notice, Cascade shall (and shall cause each Cascade Subsidiary
to) afford to the officers, employees, accountants, counsel, financing sources
and other representatives of Parent, access, during normal business hours during
the period prior to the Effective Time, to all of its properties, books,
contracts, commitments and records and, during such period, Cascade shall (and
shall cause each Cascade Subsidiary to) furnish promptly to the Parent (a) a
copy of each report, schedule, registration statement and other document filed
or received by it during such period pursuant to the requirements of the federal
securities laws and (b) all other information concerning its business,
properties and personnel as the Parent may reasonably request. Access shall
include the right to conduct such management information systems, risk
management and environmental studies as Parent shall reasonably deem
appropriate.
ARTICLE 7
CLOSING CONDITIONS
7.1 CONDITIONS PRECEDENT TO THE OBLIGATIONS OF ALL PARTIES. The respective
obligations of each party to effect the Merger shall be subject to the
fulfillment at or prior to the Effective Time of each of the following
conditions:
(a) The Merger and this Agreement shall have been duly approved and
adopted by the vote of a majority of the shares of Cascade Common Stock and the
votes attributable to the share of Cascade Special Voting Stock, voting together
as a single voting group, as required by the OBCA and Cascade's Restated
Articles of Incorporation and Bylaws.
(b) Any waiting period (and any extension thereof) applicable to the
consummation of the Merger under the HSR Act shall have expired or been
terminated.
(c) No preliminary or permanent injunction or other order, decree or
ruling issued by a court of competent jurisdiction or by a governmental,
regulatory or administrative agency or commission nor any statute, rule,
regulation or executive order promulgated or enacted by any Governmental
Authority shall be in effect which would (i) make the consummation of the Merger
by the Parent, Acquisition Co. or Cascade illegal or (ii) otherwise prevent the
consummation of the Merger.
A-23
<PAGE>
7.2 ADDITIONAL CONDITIONS PRECEDENT TO THE OBLIGATION OF CASCADE. The
obligation of Cascade to effect the Merger is also subject to the fulfillment at
or prior to the Effective Time of the following additional conditions:
(a) The Parent and Acquisition Co. shall each have performed in all
material respects each of its respective covenants and obligations under this
Agreement required to be performed by it on or prior to the Effective Time
pursuant to the terms hereof.
(b) The representations and warranties of the Parent and Acquisition
Co. contained in this Agreement shall be true and correct in all material
respects, in each case when made and, unless such representation or warranty is
made as of a specific date, at and as of the Effective Time as if made at and as
of such time.
(c) Cascade shall have received a certificate, dated the Closing Date,
of an executive officer of the Parent, to the effect that the conditions
specified in paragraphs (a) and (b) of this Section 7.2 have been fulfilled.
(d) Cascade shall have received the opinion of Torys, special counsel
to the Parent and Acquisition Co., in such form as it may reasonably request.
(e) Parent or Acquisition Co. shall have received sufficient funds to
pay the aggregate Per Share Price and Option Consideration and consummate the
Merger.
7.3 ADDITIONAL CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PARENT AND
ACQUISITION CO. The obligations of the Parent and Acquisition Co. to effect the
Merger are also subject to the fulfillment at or prior to the Effective Time of
the following additional conditions:
(a) Cascade shall have performed in all material respects each of its
covenants and obligations under this Agreement required to be performed by it on
or prior to the Effective Time pursuant to the terms hereof.
(b) The representations and warranties of Cascade contained in this
Agreement shall be true and correct when made and, unless such representation or
warranty is made as of a specific date, at and as of the Effective Time as if
made at and as of such time, except for (i) changes contemplated by this
Agreement and (ii) any failure to be so true and correct which, individually or
with all such other failures, would not have a Material Adverse Effect.
(c) The Parent shall have received a certificate dated the Closing
Date, of an executive officer of Cascade, to the effect that the conditions
specified in paragraphs (a) and (b) of this Section 7.3 have been fulfilled.
(d) The Parent and Acquisition Co. shall each have received the opinion
of Newcomb, Sabin, Schwartz & Landsverk, LLP, counsel to Cascade, in such form
as it may reasonably request.
(e) Parent or Acquisition Co. shall have received at least
$238 million of proceeds under the credit facilities contemplated by the
Commitment Letters for such facilities on terms substantially similar to those
set forth in such Commitment Letters, provided Parent and Acquisition Co. shall
have complied with the provisions of Section 6.2(c).
A-24
<PAGE>
ARTICLE 8
CLOSING
8.1 TIME AND PLACE. The Closing shall take place at the offices of Tonkon
Torp LLP, 888 S.W. Fifth Avenue, Suite 1600, Portland, Oregon 97204, at
10:00 a.m., local time on the same Business Day that the condition set forth in
Section 7.1(a) is satisfied or on such other date and at such other time as
Cascade and the Parent agree.
8.2 FILINGS AT THE CLOSING; OTHER ACTIONS. At the Closing, the Parent and
Cascade shall cause the Articles of Merger (and the associated plan of merger)
to be filed and recorded in accordance with the provisions of Section 60.494 of
the OBCA, and shall take any and all other lawful actions and do any and all
other lawful things necessary to cause the Merger to become effective.
ARTICLE 9
NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS
All of the representations and warranties contained in this Agreement or any
representations and warranties contained in any certificate, document or
instrument delivered pursuant to this Agreement shall terminate as of the
Closing. The covenants set forth in Sections 3.5, 6.8 and 6.9 shall survive for
the respective periods set forth therein.
ARTICLE 10
TERMINATION RIGHTS
10.1 TERMINATION. This Agreement may be terminated at any time prior to
the Effective Time:
(a) by mutual consent of the Parent, Acquisition Co. and Cascade;
(b) by either the Parent, Acquisition Co. or Cascade if the Merger
shall not have been consummated on or before March 31, 2001; provided, however,
that the right to terminate this Agreement shall not be available to any party
whose failure to fulfill any obligation of this Agreement has been the cause of,
or resulted in, the failure of the Merger to have occurred on or before the
aforesaid date;
(c) by the Parent or Acquisition Co., if Cascade shall have materially
breached any of its covenants herein or if Cascade shall have made a
misrepresentation and not cured the same within 15 days of notice of such breach
or misrepresentation, which misrepresentation causes the condition in
Section 7.3(b) not to be satisfied; provided, however, that if an inaccuracy in
any of Cascade's representations and warranties as of a date subsequent to the
date of this Agreement or a breach of a covenant by Cascade is curable and
Cascade is continuing to exercise all reasonable efforts to cure such inaccuracy
or breach, then Parent or Acquisition Co. may not terminate this Agreement under
this Section 10.1 (c) on account of such inaccuracy or breach;
(d) by Cascade, if either the Parent or Acquisition Co. shall have
materially breached any of its covenants herein or if either the Parent or
Acquisition Co. shall have made a misrepresentation herein and not cured the
same within 15 days of notice of such breach or misrepresentation, which
misrepresentation causes the condition in Section 7.2(b) not to be satisfied;
provided, however, that if an inaccuracy in any of Parent's or Acquisition Co.'s
representations and warranties as of a date subsequent to the date of this
Agreement or a breach of a covenant by Parent or Acquisition Co. is curable by
Parent or Acquisition Co. and Parent or Acquisition Co. is continuing to
exercise all reasonable efforts to cure such inaccuracy or breach, then Cascade
may not terminate this Agreement under this Section 10.1(d) on account of such
inaccuracy or breach;
A-25
<PAGE>
(e) by either the Parent, Acquisition Co. or Cascade, if (i) any court
of competent jurisdiction or other governmental agency of competent jurisdiction
shall have issued an order, decree or ruling or taken any other action
restraining, enjoining or otherwise prohibiting the Merger, and such order,
decree, ruling or other action shall have become final and non-appealable or
(ii) if the required vote set forth in Section 7.1(a) hereof shall not have been
obtained at the Cascade Shareholders Meeting or at any adjournment or
postponement thereof;
(f) by the Parent or Acquisition Co., if (i) the Board shall have
withdrawn or modified in a manner materially adverse to the Parent or
Acquisition Co. its approval or recommendation of this Agreement or the Merger
or shall have recommended an Acquisition Proposal with a person or entity other
than the Parent, Acquisition Co. or their Affiliates, or (ii) Cascade shall have
executed a definitive agreement relating to an Acquisition Proposal or similar
business combination with a person or entity other than the Parent, Acquisition
Co. or their Affiliates; or
(g) by Cascade, if the Board shall have withdrawn or modified its
approval or recommendation of this Agreement or the Merger in order to permit
Cascade to enter into a definitive agreement with respect to a Superior
Proposal, which is then pending, provided Cascade has complied with the
provisions of Section 6.5.
10.2 PROCEDURE AND EFFECT OF TERMINATION. In the event of termination and
abandonment of the Merger by the Parent, Acquisition Co. or Cascade pursuant to
Section 10.1 hereof, notice thereof shall forthwith be given to Cascade or the
Parent, respectively, and this Agreement shall terminate and the Merger shall be
abandoned, without further action by any of the parties hereto, except that the
provisions of Sections 6.6, 10.3, 11.4, and 11.7 hereof shall survive such
termination, and Parent or Acquisition Co. shall return to Cascade all
documents, work papers and other materials obtained from Cascade in connection
with the transactions contemplated hereby. If this Agreement is terminated as
provided herein, no party hereto shall have any liability or further obligation
to any other party to this Agreement except as provided in this Section 10.2 and
in Section 10.3; PROVIDED, HOWEVER, any termination shall be without prejudice
to the rights of any party hereto arising out of a breach by any other party of
any covenant, agreement or representation contained in this Agreement.
10.3 EXPENSES; TERMINATION FEE.
(a) Except as set forth in this Section 10.3, each of the Parent and
Acquisition Co., on the one hand, and Cascade, on the other hand, shall be
responsible for the payment of their respective expenses, including legal and
accounting fees, in connection with the preparation, negotiation and closing of
this Agreement and transactions contemplated hereby, except that (i) if the
Parent or Acquisition Co. terminate this Agreement pursuant to Section 10.1(f)
or Cascade terminates pursuant to Section 10.1(g) hereof, or (ii) if Cascade,
the Parent or Acquisition Co. terminate this Agreement pursuant to
Section 10.1(e)(ii) and an Acquisition Proposal shall have been publicly
announced or otherwise communicated to the shareholders of Cascade after the
date of this Agreement and prior to the Cascade Shareholders Meeting and such
Acquisition Proposal shall be consummated within 12 months of the date of
termination of this Agreement, then Cascade shall pay to the Parent, in addition
to its Expenses (as defined in Section 10.3(b)), by wire transfer of immediately
available funds to an account designated by Parent, a fee equal to $7,500,000.
Such payment shall be due in the case of a termination in the circumstances
specified in clause (i) above, within five business days after written notice of
termination and in the case of a termination in the circumstances specified in
clause (ii) above, on the date of consummation of such Acquisition Proposal.
(b) If (i) the Parent or Acquisition Co. terminate this Agreement
pursuant to Section 10.1(f) or Cascade terminates pursuant to Section 10.1(g)
hereof, or (ii) if Cascade, the Parent or Acquisition Co. terminate this
Agreement pursuant to Section 10.1(e)(ii) and at the time of such termination no
A-26
<PAGE>
Acquisition Proposal shall be pending, then Cascade shall pay to the Parent all
of the Parent's and Acquisition Co.'s reasonable out-of-pocket expenses and fees
(including without limitation fees and expenses payable to counsel, accountants,
experts and consultants, banks, investment banking firms and other financial
institutions and their respective agents and counsel) actually incurred by the
Parent or Acquisition Co. in connection with the transactions contemplated by
this Agreement and the Merger up to a maximum of $2,500,000 (the "Expenses").
Such payment shall be due within five business days after the Parent or
Acquisition Co. shall have provided Cascade with an itemized statement in
respect of such Expenses, and shall be paid by wire transfer of immediately
available funds to an account designated by Parent.
ARTICLE 11
OTHER PROVISIONS
11.1 AMENDMENT AND MODIFICATION. Subject to Applicable Law, this Agreement
may be amended, modified or supplemented only by mutual written agreement of the
parties hereto.
11.2 BENEFIT AND ASSIGNMENT. This Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective,
successors and assigns, but neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any party to this
Agreement without the prior written consent of the other parties hereto.
11.3 NO THIRD-PARTY BENEFICIARIES. Nothing in this Agreement shall confer
any rights upon any Person other than the parties hereto and their respective
successors and permitted assigns.
11.4 ENTIRE AGREEMENT. This Agreement and the Confidentiality Agreement,
dated as of June 18, 2000, between Cascade and TD Capital Group Limited and the
exhibits and schedules hereto and thereto embody the entire agreement and
understanding of the parties hereto and supersede any and all prior agreements,
arrangements and understandings relating to the matters provided for herein and
therein. No amendment, waiver of compliance with any provision or condition
hereof or consent pursuant to this Agreement shall be effective unless evidenced
by an instrument in writing signed by the party against which enforcement of any
amendment, waiver or consent is sought. Acquisition Co. hereby agrees that any
consent or waiver of compliance given by the Parent hereunder shall be
conclusively binding upon it, whether given expressly on Acquisition Co.'s
behalf or not. Cascade is not making any representation or warranty whatsoever,
express or implied, except the representations and warranties of Cascade
contained in this Agreement, and each of the Parent and Acquisition Co.
acknowledges and agrees that it has not relied on or been induced to enter into
this Agreement by any representation or warranty of Cascade (or any Cascade
Subsidiary) other than those expressly set forth in this Agreement.
11.5 HEADINGS. The headings set forth in this Agreement are for
convenience only and will not control or affect the meaning or construction of
the provisions of this Agreement.
11.6 CHOICE OF LAW. The construction and performance of this Agreement
shall be governed by the substantive laws of the State of Oregon without regard
to its principles of conflict of laws, and the state and federal courts of
Oregon shall have exclusive jurisdiction over any controversy or claim arising
out of or relating to this Agreement.
11.7 NOTICES. All notices, requests, demands, letters, waivers and other
communications required or permitted to be given under this Agreement shall be
in writing and shall be deemed to have been
A-27
<PAGE>
duly given if (a) delivered personally, (b) mailed, certified or registered mail
with postage prepaid, (c) sent by next-day or overnight mail or delivery or
(d) sent by facsimile, as follows:
(a) If to the Parent or Acquisition Co., to them at:
with copies to:
Torys
237 Park Avenue
New York, New York 10017-3142
Facsimile: (212) 682-0200
Attention: Andrew J. Beck, Esq.
(b) If to Cascade, to it at:
Cascade Corporation
2201 NE 201st Avenue
Fairview, Oregon 97204-9718
Facsimile: (503) 669-6718
Attention: Chief Executive Officer
with copies to:
Tonkon Torp LLP
888 SW 5th Avenue, Suite 1600
Portland, Oregon 97204
Facsimile: (503) 972-3704
Attention: Brian G. Booth, Esq.
Thomas P. Palmer, Esq.
and
Newcomb, Sabin, Schwartz & Landsverk, LLP
111 SW 5th Avenue, Suite 4040
Portland, Oregon 97204
Attention: Jack B. Schwartz, Esq.
or to such other Person or address as any party shall specify by notice in
writing to the party entitled to notice. All such notices, requests, demands,
letters, waivers and other communications shall be deemed to have been received
(w) if by personal delivery on the day after such delivery, (x) if by certified
or registered mail, on the fifth Business Day after the mailing thereof, (y) if
by next-day or overnight mail or delivery, on the day delivered or (z) if by
facsimile, on the next day following the day on which such facsimile was sent,
provided that a copy is also sent by certified or registered mail.
11.8 SEVERABILITY. It is the desire and intent of the parties that the
provisions of this Agreement be enforced to the fullest extent permitted under
Applicable Law. Accordingly, in the event that any provision of this Agreement
would be held in any jurisdiction to be invalid, prohibited or unenforceable for
any reason, such provision, as to such jurisdiction, shall be ineffective,
without invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
Notwithstanding the foregoing, if such provision could be more narrowly drawn so
as not to be invalid, prohibited or unenforceable in such jurisdiction, it
shall, so as to such jurisdiction, be so narrowly drawn, without invalidating
the remaining provisions of this Agreement or affecting the validity or
enforceability of such provision in any other jurisdiction.
A-28
<PAGE>
11.9 EXTENSIONS AND WAIVERS. At any time prior to the Effective Time, the
parties, by action taken or authorized by their respective boards of directors
may, to the extent permitted under Applicable Law, (a) extend the time for the
performance of any of the covenants, obligations or other acts of the other
parties hereto, (b) waive any inaccuracies in the representations and warranties
contained herein or in any document delivered pursuant hereto and (c) waive
compliance with any of the agreements or conditions contained herein. Any
agreement on the part of a party hereto to any such extension or waiver shall be
valid only if set forth in a written instrument signed on behalf of such party.
11.10 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which will be deemed an original and all of which together
will constitute one and the same instrument.
11.11 SCHEDULES. The Schedules to this Agreement shall be arranged in
separate parts corresponding to the Sections of this Agreement, and the
information disclosed in any Schedule shall be deemed to relate to and to
qualify only the particular representation, warranty or covenant set forth in
the corresponding Section, and any other representation, warranty or covenant to
which the relevance of the information in the Schedule is reasonably apparent.
Any and all statements or disclosures set forth in the Schedules shall be deemed
to have been made on and as of the date of this Agreement.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
A-29
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first written above.
<TABLE>
<S> <C> <C>
CASCADE ACQUISITION CORP.
By: /s/ STEPHEN J. DENT
-----------------------------------------
Name: Stephen J. Dent
Title:
CASCADE--II ACQUISITION CORP.
By: /s/ STEPHEN J. DENT
-----------------------------------------
Name: Stephen J. Dent
Title:
CAS ACQUISITION CORP.
By: /s/ STEPHEN J. DENT
-----------------------------------------
Name: Stephen J. Dent
Title:
CASCADE CORPORATION
By: /s/ JAMES S. OSTERMAN
-----------------------------------------
Name: James S. Osterman
Title: Chair of the Special Committee
of the Board of Directors
</TABLE>
A-30
