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EXECUTION COPY
STOCKHOLDER AGREEMENT
This Stockholder Agreement ("Agreement") is entered into effective for
all purposes as of September 23, 1996, by and between CLARCOR Inc., a Delaware
corporation ("Parent"), and the undersigned (the "Stockholder", and together
with the other persons who execute agreements in the same form as this
Agreement, the "Signatory Stockholders").
WHEREAS, Parent, CUAC Inc., an Ohio corporation and wholly-owned
subsidiary of Parent ("Sub"), and United Air Specialist, Inc., an Ohio
corporation (the "Company"), are simultaneously entering into an Agreement and
Plan of Merger, (the "Merger Agreement"), pursuant to which Sub will merge with
and into the Company (the "Merger"); and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Sub have required that each of the Signatory Stockholders
enter into, and each of the Signatory Stockholders has agreed to enter into,
this Agreement or an agreement in the same form as this Agreement (together, the
"Stockholder Agreements"); and
WHEREAS, the Board of Directors of the Company has, prior to the
execution of the Merger Agreement and the Stockholder Agreements, approved the
Merger Agreement, the Merger and this Agreement;
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements contained herein, the parties agree
as follows:
ARTICLE 1
AGREEMENT TO SUPPORT MERGER
Section 1.1 Voting. The Stockholder hereby agrees that, during the term
that this Agreement is in effect, at any meeting of the stockholders of the
Company, however called, or in connection with any written consent of the
stockholders of the Company, the Stockholder shall vote (or cause to be voted)
all voting Shares (as defined in Section 2.1) held of record (or beneficially)
by the Stockholder:
(a) in favor of the Merger and the adoption of the Merger Agreement;
(b) against any action or agreement that would result in a breach of
any covenant, representation or warranty, or any other obligation or agreement,
of the Company under the Merger Agreement; or
(c) except as otherwise agreed to in writing in advance by Parent,
against the following actions (other than the Merger and the transactions
contemplated by the Merger Agreement):
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(i) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company or
any of its subsidiaries (as defined in the Merger Agreement);
(ii) a sale, lease or transfer of a material amount of assets
of the Company or any of its subsidiaries or a reorganization,
recapitalization, dissolution or liquidation of the Company or any of
its subsidiaries;
(iii) any change in the Board of Directors of the Company;
(iv) any change in the present capitalization of the Company
or any amendment to the Company's Articles of Incorporation or By-laws;
(v) any change in the Company's corporate structure or
business; or
(vi) any other action that is intended, or that could
reasonably be expected, to impede, interfere with, delay, postpone or
discourage, or adversely affect the contemplated economic benefits to
Parent of the Merger and the actions or transactions contemplated by
the Merger Agreement or this Agreement.
The Stockholder further agrees that the Stockholder will not enter into any
agreement or understanding with any person or entity prior to the termination of
this Agreement that is in any manner inconsistent with the provisions of this
Section 1.1.
ARTICLE 2
REPRESENTATIONS AND WARRANTIEs
Section 2.1 Representations and Warranties. The Stockholder hereby
represents and warrants to Parent as follows:
(a) Ownership of Shares. The Stockholder is the record and beneficial
owner of the number of shares of Common Stock, without par value, of the Company
("Common Stock"), as set forth on Schedule A hereto (the "Existing Shares" and,
together with any shares of Common Stock acquired by the Stockholder hereafter
and prior to the termination of this Agreement, whether upon exercise of
options, conversion of convertible securities, purchase, exchange or otherwise,
the "Shares"). On the date hereof, the Existing Shares constitute all of the
shares of Common Stock owned of record or beneficially by the Stockholder.
Except as described on Schedule A attached hereto, the Stockholder has sole
voting power and sole power of disposition, sole power to demand an appraisal of
any Existing Shares entitled to appraisal pursuant to Section 1701.85 of the
Ohio General Corporation Law and sole power to engage in the actions set forth
herein, including those set forth in Article 3 hereof, in each case with respect
to all of the Existing Shares, with no restrictions on such rights except
pursuant to the terms of this Agreement.
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(b) Power; Binding Agreement. The Stockholder has the legal capacity,
power and authority to enter into and perform all of the Stockholder's
obligations under this Agreement. The execution, delivery and performance of
this Agreement by the Stockholder will not violate any other agreement to which
the Stockholder is a party or by which the Stockholder or any of the
Stockholder's properties or assets are or may be bound, including, without
limitation, any trust agreement, voting agreement, irrevocable proxy,
stockholders agreement or voting trust. This Agreement has been duly and validly
executed and delivered by the Stockholder and constitutes a valid and binding
agreement of the Stockholder, enforceable against the Stockholder in accordance
with its terms. There is no beneficiary, or holder of a voting trust certificate
or other interest, of any trust of which the Stockholder is a trustee whose
consent is required for the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby with respect to any
Existing Shares. If the Shares constitute community property, this Agreement has
been duly authorized, executed and delivered by, and constitutes a valid and
binding agreement of, each person having community property rights in the
Shares, enforceable against such person in accordance with its terms.
(c) No Conflicts. Except pursuant to the Securities Exchange Act of
1934, as amended, no filing with, and no permit, authorization, consent or
approval of, any state or federal public body or authority or any other person
(or entity) is necessary for the execution of this Agreement by the Stockholder
and the performance by the Stockholder of the actions contemplated hereby.
Neither the execution and delivery of this Agreement by the Stockholder nor the
consummation by the Stockholder of the transactions contemplated hereby nor
compliance by the Stockholder with any of the provisions hereof will (i) result
in a violation or breach of, or constitute (with or without notice or lapse of
time or both) a default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which the Stockholder is a party or by which the
Stockholder or any of the Stockholder's properties or assets are or may be bound
or (ii) violate any order, writ, injunction, decree, judgment, statute, rule or
regulation applicable to the Stockholder or any of the Stockholder's properties
or assets.
(d) No Adverse Claims. The Shares and the certificates representing
such Shares are now and at all times during the term of this Agreement will be
held by the Stockholder, or by a nominee or custodian for the benefit of the
Stockholder, free and clear of all liens, claims, security interests, proxies,
voting trusts or agreements, understandings or arrangements or any other
encumbrances whatsoever, except for any such encumbrances or proxies arising
under this Agreement.
(e) No Brokers. No broker, investment banker, financial advisor or
other person is entitled to receive from the Company or any subsidiary any
broker's, finder's, financial advisor's or other similar fee or commission in
connection with the transactions contemplated hereby based on arrangements made
by or on behalf of the Stockholder.
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(f) Material Reliance. The Stockholder understands and acknowledges
that Parent is entering into, and causing Sub to enter into, the Merger
Agreement in material reliance upon the Stockholder's execution and delivery of
this Agreement.
(g) No Intention to Dispose. The Stockholder has no plan or intention
to, directly or indirectly, sell, exchange, or otherwise dispose of, reduce the
risk of loss by short sale or otherwise, or enter into any contract or other
arrangement with respect to, or consent to, the sale, exchange or other
disposition of any interest in any shares of Parent Common Stock (as defined in
the Merger Agreement) received pursuant to the Merger. The Stockholder
acknowledges that the Stockholder is giving this representation to enable
▇▇▇▇▇▇▇, Head & ▇▇▇▇▇▇▇ and Sidley and Austin to opine that the Merger
constitutes a reorganization within the meaning of Section 368(a) of the Code
and further recognizes that significant adverse tax consequences might result if
such representation is not true. The Stockholder understands and agrees that, in
connection with the Merger, the Stockholder will give written notice to the
Company and Parent in the event that, at the Effective Time of the Merger (as
defined in the Merger Agreement) there is any change in any of the
representations of the Stockholder set forth in this Section 2.1(g).
ARTICLE 3
CERTAIN COVENANTS AND AGREEMENTs
Section 3.1 Certain Covenants of Stockholder. Except in accordance with
the terms of this Agreement, during the term of this Agreement, the Stockholder
hereby covenants and agrees as follows:
(a) No Solicitation. (i) The Stockholder will immediately cease and
cause to be terminated all existing discussions and negotiations, if any, with
any parties conducted heretofore by the Stockholder with respect to any Takeover
Proposal. As used in this Agreement, "Takeover Proposal" means any tender offer
or exchange offer for 20% or more of the outstanding shares of Common Stock or
any proposal or offer for a merger, consolidation, amalgamation or other
business combination involving the Company or its subsidiaries or any equity
securities (or securities convertible into equity securities) of the Company, or
any proposal or offer to acquire in any manner a 20% or greater equity or
beneficial interest in, or a material amount of the assets or value of, the
Company or its subsidiaries, other than pursuant to the transactions
contemplated by the Merger Agreement.
(ii) The Stockholder will not, and will not permit any of the
Stockholder's representatives or agents to, directly or indirectly, (A) solicit,
initiate or (excluding any action referred to in clauses (B) and (C) of this
sentence) encourage or take any action to facilitate the making of, any offer or
proposal that constitutes or that is reasonably likely to lead to any Takeover
Proposal, (B) participate in any discussions (other than as necessary to clarify
the terms and conditions of any unsolicited offer, including any financing or
other contingencies and other relevant facts with respect thereto) or
negotiations regarding any Takeover Proposal (other than with the Stockholder's
legal counsel, other Signatory Stockholders or officers or directors of the
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Company) or (C) furnish to any person (other than Parent or its representatives)
any nonpublic information or nonpublic data regarding the Company. The
Stockholder will notify Parent or officers or directors of the Company orally
and in writing of any such inquiries, offers or proposals to the Stockholder
(including the terms and conditions of any offer or proposal and the identity of
the person making any inquiry, offer or proposal) as promptly as possible and in
any event within 24 hours after receipt thereof.
(b) Restriction on Transfer; Proxies and Non-Interference; Restriction
on Withdrawal. The Stockholder shall not, directly or indirectly:
(i) except pursuant to the terms of the Merger Agreement and
as set forth on Exhibit A, offer for sale, sell, transfer, tender,
pledge, encumber, assign or otherwise dispose of (or in any other way
reduce the Stockholder's risk of ownership in), or enter into any
contract, option or other arrangement or understanding with respect to
or consent to the offer for sale, sale, transfer, tender, pledge,
encumbrance, assignment or other disposition of (or in any other way
reduce the Stockholder's risk of ownership in), any or all of the
Shares or any other equity securities of the Company or any interest
therein;
(ii) except as contemplated by this Agreement, grant any
proxies or powers of attorney, deposit any Shares into any voting trust
or enter into any voting agreement with respect to any Shares; or
(iii) take any action that would make any representation or
warranty of the Stockholder contained herein untrue or incorrect or
have the effect of preventing or disabling the Stockholder from
performing the Stockholder's obligations under this Agreement.
(c) Waiver of Appraisal Rights. The Stockholder hereby waives any and
all rights of appraisal or rights to require the Company to purchase any of the
Shares that the Stockholder may have under the Ohio General Corporation Law.
Section 3.2 Certain Agreements with Respect to Shares for Purposes of
Rule 145. If the Stockholder may be deemed to be an "affiliate" of the Company
pursuant to Rule 145 under the Securities Act of 1933, as amended, the
Stockholder has delivered, or agrees to deliver to the Parent prior to the
closing of the Merger, an Affiliate Agreement in the form previously approved by
the parties to the Merger Agreement with respect to the Shares and future
transactions with respect to Parent Shares by the Stockholder ("Affiliate
Agreement"). Each representation of the Stockholder made in Section 2.1(b) and
Section 2.1(c) hereof with respect to this Agreement is hereby confirmed to be
true and correct with respect to the Affiliate Agreement, if any.
Section 3.3 Binding Obligations. The Stockholder agrees that this
Agreement and the Stockholder's obligations hereunder and, if applicable, under
the Affiliate Agreement shall attach to the Shares and shall be binding upon any
person or entity to which legal or beneficial
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ownership of the Shares shall pass, whether by operation of law or otherwise,
including without limitation the Stockholder's heirs, guardians, administrators
or successors.
Section 3.4 Stop Transfer. The Stockholder agrees with, and covenants
to, Parent that the Stockholder shall not request that the Company register any
transfer of any certificate representing any of the Shares, if such transfer
would violate any provision of this Agreement.
ARTICLE 4
TERMINATION
Section 4.1 Termination. This Agreement shall terminate if the Merger
Agreement is terminated in accordance with its terms other than as a result of
the effectiveness of the Merger. Such termination shall not affect the rights of
any party for any breach of any covenants, agreements, representations or
warranties contained herein.
ARTICLE 5
MISCELLANEOUS
Section 5.1 Entire Agreement; Assignment. This Agreement and the
Affiliate Agreement, if applicable, executed by the Stockholder, (i) constitute
the entire agreement between the parties with respect to the subject matter
hereof and thereof and supersede all other prior agreements and understandings,
both written and oral, between the parties with respect to the subject matter
hereof and (ii) shall not be assigned by operation of law or otherwise without
the prior written consent of the other party; provided that Parent may assign,
in its sole discretion, its rights and obligations hereunder and thereunder to
any direct or indirect wholly owned subsidiary of Parent, but no such assignment
shall relieve Parent of its obligations hereunder if such assignee does not
perform such obligations. Subject to the preceding sentence, this Agreement and
the Affiliate Agreement, if applicable, shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, heirs, personal
representatives, legal representatives and permitted assigns.
Section 5.2 Amendments. This Agreement may not be modified, amended,
altered or supplemented, except upon the execution and delivery of a written
agreement executed by the parties hereto. The Merger Agreement may be amended in
accordance with the terms thereof, and each reference herein to the Merger
Agreement shall mean the Merger Agreement as amended, provided that any such
amendment that changes the Conversion Number as provided in Section 1.5 of the
Merger Agreement or that in any way materially adversely affects the rights of
the stockholders of the Company shall have been approved in writing by the
Stockholder.
Section 5.3 Stockholder Capacity. If the Stockholder is or becomes
during the term hereof a director of the Company, then the Stockholder makes no
agreement or understanding herein in his or her capacity as a director. The
Stockholder signs solely in his, her or its capacity as the record and
beneficial owner of the Shares.
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Section 5.4 Written Notices. All written notices, requests, claims,
demands and other communication hereunder shall be given (and shall be deemed to
have been duly received if so given) by hand delivery, telegram, telex or
telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery, to the respective parties at the following addresses:
(a) if to Parent, to
CLARCOR Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone: 815/▇▇▇-▇▇▇▇
Telecopy: 815/968-5879
with a copy (which shall not constitute notice) to:
▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Sidley & Austin
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: 312/▇▇▇-▇▇▇▇
Telecopy: 312/853-7036
(b) if to the Stockholder, to
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telephone: 513/▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
Telephone: 513/▇▇▇-▇▇▇▇
Telecopy: 513/561-1396
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
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Section 5.5 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Ohio, regardless of the
laws that might otherwise govern under applicable principles of conflicts of
laws thereof.
Section 5.6 Specific Performance. Each of the parties hereto recognizes
and acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which there
would be no adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief, in addition to any other
remedy to which such party may be entitled, at law or in equity.
Section 5.7 Counterparts. This Agreement may be executed in multiple
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same Agreement.
Section 5.8 Descriptive Heading. The descriptive headings used herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
Section 5.9 Further Assurances. From time to time, at Parent's
reasonable request and without further consideration, the Stockholder shall
execute and deliver such additional documents and take all such further action
as may be necessary or appropriate to consummate and make effective, in the most
expeditious manner practicable, the agreements, covenants and transactions
contemplated by this Agreement.
Section 5.10 Severability. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable,
such invalidity, illegality or unenforceability will not affect any other
provision or portion of any provision, and this Agreement will be reformed,
construed and enforced in such jurisdiction as if such invalid, illegal or
unenforceable provision or portion of any provision had never been contained
herein.
Section 5.11 Registration Rights Agreement. Prior to the closing of the
Merger, the parties will enter into an agreement for registration of the shares
of Parent Common Stock to be received by Stockholder in the Merger, which
agreement shall provide for one demand registration at the time that Parent
prepares its Annual Report on Form 10-K for the fiscal year ended November 30,
1998 and limited piggyback registration rights and which shall contain other
terms and conditions customary for transactions that are similar to the Merger.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed and delivered effective for all purposes as of the date first above
written.
CLARCOR INC.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Chairman and Chief Executive Officer
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STOCKHOLDER:
Signature: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Printed Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
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EXHIBIT A
OWNERSHIP OF SHARES
BY
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
(1) 525,078 shares of UAS common stock owned of record, and beneficially,
by ▇▇▇. ▇▇▇▇▇ individually
▇▇▇. ▇▇▇▇▇ has sole voting power and sole dispositive power of the shares
identified in (1) above.
For estate planning purposes, Mr. and ▇▇▇. ▇▇▇▇▇ have been contemplating for
several months prior to the date of the Stockholders Agreement to which this
Exhibit A is attached, the transfer by ▇▇. ▇▇▇▇▇ of 44,889 shares of UAS common
stock and by ▇▇▇. ▇▇▇▇▇ of 5,000 shares of UAS common stock to a family limited
partnership of which ▇▇. ▇▇▇▇▇ is the general partner. Such transfer may occur
after the date hereof and prior to the consummation of the merger.