EXHIBIT 3
AGREEMENT TO TENDER
-------------------
This Agreement to Tender (the "Agreement") dated as of February 13, 1995
among Associated Holdings, Inc., a Delaware corporation ("AHI"), and the persons
whose names are set forth on Schedule A hereto (individually a "Shareholder" and
collectively the "Shareholders").
Recitals:
--------
A. AHI and United Stationers Inc., a Delaware corporation (the "Company")
are simultaneously herewith entering into an Agreement and Plan of Merger dated
as of the date hereof (the "Merger Agreement"), which provides, among other
things, that AHI, upon the terms and subject to the conditions thereof, will
make a cash tender offer for up to 92.5% of the outstanding shares of common
stock, par value $.10 per share, of the Company (the "Shares") at a price of
$15.50 per Share, pursuant to an Offer to Purchase and related Letter of
Transmittal which together constitute the "Offer" included in a Tender Offer
Statement on Schedule 14D-1 filed by AHI with the Securities and Exchange
Commission (the "Offer Statement"), or such higher price per share pursuant to
the Offer. Upon completion of the Offer, AHI will merge with the Company (the
"Merger") and each then outstanding Share (other than certain Shares identified
in Section 3.1(b) of the Merger Agreement) would be converted as provided in
Section 3.1(a) of the Merger Agreement (the Offer and Merger being collectively
referred to as the "Transaction").
B. As a condition to entering into the Merger Agreement, AHI has
requested, and each of the Shareholders has agreed, to make certain agreements
and covenants with AHI, upon the terms and subject to the conditions hereinafter
set forth with respect to the respective number of Shares set forth on Schedule
A hereto opposite the name of each of the Shareholders.
NOW, THEREFORE, in consideration of the mutual agreements, covenants,
representations and warranties contained herein, the parties hereto agree as
follows:
ARTICLE I
Agreement to Tender Shares
--------------------------
Section 1.1 Tender. Subject to the terms and conditions of this
Agreement and of the Offer, each Shareholder agrees severally for itself only to
tender to AHI pursuant to the Offer in accordance with the terms thereof
("Tender") and not withdraw except as permitted hereby all Shares held by such
Shareholder.
The approximate number of Shares owned by the Shareholder are set forth on
Schedule A hereto opposite the name of such Shareholder and AHI shall accept for
payment and pay for all of such Shares Tendered by such Shareholder at the price
of $15.50 per Share or such higher price to be paid under the terms of the Offer
by means of a wire transfer to an account as specified by the Shareholder at the
following time: one business following the Expiration Date (as defined in the
Offer Statement) if the aggregate number of shares Tendered are less than the
Maximum Number (as defined in the Offer Statement) or one business day following
the announcement of the final proration factor should more than the Maximum
Number be Tendered. In the event that any Shareholder acquires any additional
Shares prior to the Tender of its Shares hereunder, all such additional Shares
shall be subject to the terms of this Agreement. Notwithstanding the foregoing,
no Shareholder shall be required to Tender Shares and, if such Shareholder has
Tendered Shares, shall be permitted to withdraw its Shares, if this Agreement is
terminated as set forth in Section 6.1 hereof.
Section 1.2 Adjustment Upon Changes in Capitalization. In the event of
any change in the Shares by reason of any stock dividends, split-ups, mergers,
recapitalizations or other changes in the corporate or capital structure of the
Company, the number and kind of Shares subject to this Agreement shall be
appropriately adjusted.
ARTICLE II
Related Matters
---------------
Section 2.1 Acquisition Transaction. The parties acknowledge that AHI
would not have entered into the Merger Agreement without the concurrent
execution of this Agreement and that each Shareholder and AHI would not have
entered into this Agreement without the concurrent execution of the Merger
Agreement.
Section 2.2 Agreement to Vote. Subject to Section 6.1 hereof, each
Shareholder agrees to vote all their shares set forth on Schedule A, at any
meeting of shareholders, in favor of the Merger Agreement, the Merger and all
transactions arising out of the Merger Agreement which require shareholder
approval. The Shareholder's agreement to vote their shares shall include an
agreement to execute written consents in lieu of a meeting.
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ARTICLE III
Representations
and Warranties of the Shareholders
----------------------------------
Each of the Shareholders, severally, and not jointly, hereby represents and
warrants to AHI as follows:
Section 3.1 Ownership of the Shares. Such Shareholder is the record or
beneficial owner with full or shared voting power of the number of Shares set
forth opposite such Shareholder's name on Schedule A hereto (which are all the
Shares which such Shareholder so owns of record or beneficially), and at the
time of Tender will have good title, and (subject to the provisions of Section
2.2 hereof) full voting power, with respect to all such Shares, free and clear
of all liens, charges, encumbrances, equities, claims and options or other
defects in title which may restrict such Shareholder's ability or authority to
tender, sell, and deliver such Shares hereunder.
Section 3.2 Authorization; Valid and Binding Agreement. This Agreement
has been duly and validly executed and delivered by such Shareholder and
constitutes a valid and binding agreement of such Shareholder enforceable
against such Shareholder in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws affecting creditors' rights and remedies generally and
subject, as to enforceability, to general principles of equity, including
principles of good faith and fair dealing (regardless of whether enforcement is
sought in a proceeding at law or equity). Except as set forth in the Merger
Agreement, no consent or approval or any court, federal or state governmental
agency, or any other person or entity is required in connection with the
execution and consummation of the transactions contemplated by this Agreement to
permit each to carry out its obligations hereunder.
Section 3.3 No Conflicts. Neither the execution and delivery of this
Agreement nor the consummation by such Shareholder of the transactions
contemplated hereby will constitute a violation of, or conflict with, or
constitute a default under, any contract, commitment, agreement, understanding,
arrangement or restriction of any kind to which such Shareholder is a party or
by which such Shareholder is bound or any judgment, decree or order applicable
to such Shareholder.
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ARTICLE IV
Representations and
Warranties of AHI
-----------------
AHI hereby represents and warrants to the Shareholders as follows:
Section 4.1 Authorization; Valid and Binding Agreement. AHI has all
requisite corporate power and authority to enter into this Agreement, and this
Agreement has been duly authorized by all necessary corporate action on the part
of AHI. This Agreement has been duly and validly executed and delivered by AHI,
and constitutes a valid and binding obligation of AHI, enforceable against AHI
in accordance with its terms, subject to applicable bankruptcy, insolvency,
fraudulent conveyance, reorganization, moratorium or other similar laws
affecting creditors' rights and remedies generally and subject, as to
enforceability, to general principle of equity including principles of good
faith and fair dealing (regardless of whether enforcement is sought in a
proceeding at law or equity).
Section 4.2 Securities Matters. AHI is acquiring the Shares for its
own account and not with a view to the public distribution thereof and will not
offer to sell or otherwise dispose of the Shares acquired in violation of the
Securities Act of 1933, as amended, and the rules and regulations promulgated
thereunder.
ARTICLE V
Covenants
---------
Section 5.1 Other Transactions. Each Shareholder agrees severally,
and for itself only, that, prior to the termination of this Agreement, such
Shareholder shall not engage in any action or omission that would have the
effect of preventing or disabling such Shareholder from Tendering its Shares to
AHI. Without limiting the foregoing and except as provided in this Agreement,
until the termination of this agreement such Shareholder agrees not to sell or
transfer, or agree to sell or transfer, any of the Shares provided, however,
that a Shareholder may transfer his or her Shares to a person, partnership,
trust, or other entity so long as such person or entity agrees in writing to be
bound by the terms, provisions and conditions of this Agreement. Upon such
transfer, the transferor shall be released from the terms of this Agreement with
regard to such transferred Shares.
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ARTICLE VI
Termination
-----------
Section 6.1 Termination. This Agreement shall terminate
automatically upon the occurrence of any of the following: (i) the Effective
Time (as defined in the Merger Agreement), (ii) the termination of the Merger
Agreement for any reason, (iii) any time following the public announcement by
any person of an offer to acquire at least a majority of the outstanding Shares
which the Shareholder reasonably believes is likely to be consummated and offers
a higher economic value to the Shareholder than the Offer and where the
Shareholder gives notice to AHI of such termination, or (iv) the Company Board
(as defined in the Merger Agreement) shall withdraw, modify or change in a
manner adverse to Purchaser, its recommendation set forth in Section
2.2(a)(i)(A) of the Merger Agreement, provided that the Company Board shall have
received an opinion of counsel that the Company Board is required to so
withdraw, modify or change such recommendation in the exercise of its fiduciary
duties.
Section 6.2 Effect of Termination. In the event of the termination
of this Agreement pursuant to Section 6.1, this Agreement (including, without
limitation, the voting agreement set forth herein) shall forthwith become void
and have no effect, without liability on the part of any party or its trustees,
partners, beneficiaries, directors, officers, and shareholders or affiliates.
Nothing contained in this Article VI shall relieve any party from liability for
any material breach of this Agreement or the Offer.
ARTICLE VII
Miscellaneous
-------------
Section 7.1 Expenses. Each of the parties hereto will pay all fees
and expenses it incurs in connection with this Agreement, including without
limitation the fees and expenses of its financial and legal advisors. Each
Shareholder represents and warrants to AHI that such Shareholder has not
employed any broker or finder or incurred any liability for any brokerage fees,
commissions or finders' fees in connection with the transactions contemplated
herein.
Section 7.2 Survival of Representations, Warranties and Agreements.
The representations, warranties and agreements of AHI and the Shareholders in
this Agreement or in any instrument delivered by AHI and the Shareholders
pursuant to this Agreement shall not survive the consummation of the Merger.
-5-
Section 7.3 Assignment; Parties in Interest. Except as permitted by
Section 5.2 hereof or as required by operation of law, this Agreement shall not
be assignable by the parties hereto without the prior written consent of the
other parties. This Agreement will be binding upon, inure to the benefit of and
be enforceable by the parties and their respective successors and permitted
assigns.
Section 7.4 Entire Agreement; Amendments. This Agreement and the
documents referred to herein or delivered pursuant hereto which form a part
hereof, contain the entire understanding of the parties with respect to its
subject matter. There are no representations, warranties, agreements, promises,
covenants or undertakings other than those expressly set forth herein or
therein. This Agreement supersedes all prior agreements and understandings
between the parties with respect to its subject matter. This Agreement may be
amended only by a written instrument duly executed by all the parties. Any
condition to a party's obligations hereunder may be waived in writing by such
party.
Section 7.5 Notices. All notices, claims, certificates, requests,
demands and other communications ("Notices") required or permitted to be given
hereunder shall be in writing and shall be deemed to have been duly given when
delivered in person, upon receipt of the telecopy confirmation when telecopied,
upon receipt if sent by a nationally recognized overnight courier service or two
(2) business days after being mailed (registered or certified mail, postage
prepaid, return receipt requested), addressed as follows:
(a) If to AHI, to:
1075 Hawthorn Drive
Itasca, Illinois 60143
Telecopy: (708) 775-7509
Attention: Daniel H. Bushell
With copies to:
Weil, Gotshal & Manges
100 Crescent Court
Dallas Texas 75201-6950
Telecopy: (214) 746-4777
Attention: Lawrence D. Stuart, Jr.
and:
Wingate Partners, L.P.
750 North St. Paul Street
Suite 1200
Dallas, Texas 75201
Attention: Thomas W. Sturgess
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(b) If to the Shareholders, to each Shareholder at the address set
forth on their respective signature page to this Agreement:
With copies to:
Altheimer & Gray
10 South Wacker Drive
Suite 4000
Chicago, Illinois 60606
Telecopy (312) 715-4800
Attention: Phillip Gordon
or to such other address as the person to whom Notice is to be given may have
previously furnished to the other in writing in the manner set forth above.
Section 7.6 Governing Law. This Agreement will be governed by and
construed in accordance with the laws of the State of Delaware without giving
effect to the principles of conflicts of law thereof.
Section 7.7 Severability of Provisions. In case any one or more of the
provisions contained in this Agreement should be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein shall not in any way be affected or
impaired thereby.
Section 7.8 Counterparts; Headings. This Agreement may be executed
simultaneously in several counterparts, each of which will be deemed to be an
original, but all of which together will constitute one and the same instrument.
The article and section headings contained herein are for reference purposes
only and will not affect in any way the meaning or interpretation of this
Agreement.
Section 7.9 Remedies. The parties hereto agree that if for any reason
any party hereto shall have failed to perform its obligations under this
Agreement, then any other party hereto seeking to enforce this Agreement against
such non-performing party shall be entitled to specific performance and
injunctive and other equitable relief, and the parties hereto further agree to
waive any requirement for the securing or posting of any bond in connection with
the obtaining of any such injunctive or other equitable relief. This provision
is without prejudice to any other rights that any party hereto may have against
any other party hereto for any failure to perform its obligations under this
Agreement.
Section 7.10 Further Assurances. Subject to the terms and conditions
herein provided, each of the parties hereto agrees to use reasonable efforts to
take, or cause to be taken, all action,
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and to do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective agreement to
tender and vote contemplated by this Agreement.
Section 7.11 Exculpation. Notwithstanding anything to the contrary
contained herein, with respect to Shareholders which are partnerships or trusts,
there shall be no personal liability hereunder on any partners or trustees with
respect to the terms, conditions, representations, warranties or covenants
contained in this Agreement. AHI shall look solely to such Shareholder and not
to any partners or trustees of those Shareholders for the satisfaction of all
remedies which AHI may have hereunder.
[*****]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first written above.
ASSOCIATED HOLDINGS, INC.
By: _______________________________________
Title: ______________________________
[Signatures continued on next pages]
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FISHMAN FAMILY
INVESTMENT PARTNERSHIP
By: /s/ Joan Fishman
--------------------------------
Joan Fishman, General Partner
Address:
/s/ Phillip Gordon
- -----------------------------------
Phillip Gordon, not personally,
but as Trustee of the Joan
Fishman Charitable Remainder
Trust u/a/d 2/1/95
Address:
JEROLD A. HECKTMAN
FAMILY INVESTMENT
PARTNERSHIP
By: /s/ Jerold A. Hecktman /s/ Jerold A. Hecktman
-------------------------------- --------------------------------
Jerold A. Hecktman, Jerold A. Hecktman
General Partner
Address: Address:
/s/ Phillip Gordon
- -----------------------------------
Phillip Gordon, not personally,
but as Trustee of the Jerold
and Ruth Hecktman Charitable
Remainder Trust u/a/d 2/1/95
Address:
MELVIN L. HECKTMAN
FAMILY INVESTMENT
PARTNERSHIP
By: /s/ Melvin L. Hecktman /s/ Melvin L. Hecktman
-------------------------------- --------------------------------
Melvin L. Hecktman, Melvin L. Hecktman
General Partner
Address: Address:
MLH INVESTMENT PARTNERSHIP /s/ Phillip Gordon
--------------------------------
Phillip Gordon, not
personally, but as
By: /s/ Melvin L. Hecktman Trustee of the Melvin and Judith
-------------------------------- Hecktman Charitable
Melvin L. Hecktman, Remainder Trust
Managing General Partner u/a/d 2/1/95
Address:
Address:
MILLS FAMILY
INVESTMENT PARTNERSHIP
By: /s/ Barbara Mills
------------------------------
Barbara Mills,
General Partner
Address:
/s/ Phillip Gordon
- ---------------------------------
Phillip Gordon, not personally,
but as Trustee of the Barbara
Mills Charitable Remainder Trust
u/a/d 2/1/95
Address:
WOLF FAMILY
INVESTMENT PARTNERSHIP
By: /s/ Barbara Wolf
-------------------------------
Barbara Wolf Savage,
General Partner
Address:
/s/ Phillip Gordon
- ----------------------------------
Phillip Gordon, not personally,
but as Trustee of the Barbara
Wolf Savage Charitable Remainder
Trust u/a/d 2/1/95
Address:
/s/ Joel D. Spungin JOEL D. SPUNGIN
- ---------------------------------- INVESTMENT PARTNERSHIP
Joel D. Spungin
/s/ Marilyn G. Spungin By: /s/ Joel D. Spungin
- ---------------------------------- ---------------------------
Marilyn G. Spungin Joel D. Spungin,
Partner
/s/ Debra A. Spungin /s/ Marc A. Spungin
- ---------------------------------- ------------------------------
Debra A. Spungin Marc A. Spungin
/s/ Steven M. Spungin
- ----------------------------------
Steven M. Spungin
/s/ Phillip Gordon /s/ Marilyn G. Spungin
- ---------------------------------- ------------------------------
Phillip Gordon, not personally, Marilyn G. Spungin, not
but as Trustee of the Joel D. personally, but as Co-
Spungin Charitable Remainder Trustee of the Joel D.
Trust u/a/d 11/15/90 Spungin Family Trust
u/a/d 11/15/90
/s/ Robert B. Scadron
------------------------------
Robert B. Scadron, not
personally, but as Co-
Trustee of the Joel D.
Spungin Family Trust
u/a/d 11/15/90
/s/ Phillip Gordon
------------------------------
Phillip Gordon, not
personally, but as
Trustee of the Joel and
Marilyn Spungin
Charitable
Remainder Trust u/a/d
2/1/95
SCHEDULE A
----------
Number of Shares
----------------
/s/ Douglas K. Chapman 28,000
- ---------------------------------
Douglas K. Chapman
United Stationers Inc.
2200 East Golf Road
Des Plaines, Illinois 60016
/s/ Doreen Chapman 7,000
- ---------------------------------
Doreen Chapman
United Stationers Inc.
2200 East Golf Road
Des Plaines, Illinois 60016
SCHEDULE A
----------
Number of Shares
----------------
/s/ E. David Coolidge III 20,000
- ---------------------------------
E. David Coolidge III
United Stationers Inc.
2200 East Golf Road
Des Plaines, Illinois 60016
SCHEDULE A
----------
Number of Shares
----------------
/s/ Ira A. Eichner 9,175
- ---------------------------------
Ira A. Eichner
United Stationers Inc.
2200 East Golf Road
Des Plaines, Illinois 60016
/s/ Barbara Eichner 1,000
- ---------------------------------
Barbara Eichner
United Stationers Inc.
2200 East Golf Road
Des Plaines, Illinois 60016
SCHEDULE A
----------
Number of Shares
----------------
/s/ Jeffrey K. Hewson 32,750
- ---------------------------------
Jeffrey K. Hewson
United Stationers Inc.
2200 East Golf Road
Des Plaines, Illinois 60016
SCHEDULE A
----------
Number of Shares
----------------
/s/ David R. Smith 107,644
- ----------------------------------
David R. Smith
United Stationers Inc.
2200 East Golf Road
Des Plaines, Illinois 60016
/s/ David R. Smith 10,000
- ----------------------------------
David R. Smith as Trustee of the
Trust u/a/d/ December 21, 1993 for
the benefit of Kareen Kanaga.
/s/ George L. Smith same
- ----------------------------------
George L. Smith as Trustee of the
Trust u/a/d/ December 21, 1993 for
the benefit of Kareen Kanaga.
/s/ George L. Smith 56,347
- ----------------------------------
George L. Smith as Trustee of the
Trust under Article Fourth of the
Will of Joan P. Smith.
/s/ George L. Smith 1,000
- ----------------------------------
George L. Smith as Custodian under
the Uniform Gift to Minors Act for
the Benefit of Colleen M. Smith.
/s/ George L. Smith 1,000
- ----------------------------------
George L. Smith as Custodian under
the Uniform Gift to Minors Act for
the Benefit of Maureen E. Smith.
SCHEDULE A
----------
Number of Shares
----------------
/s/ Jack Twyman 1,000
- ---------------------------------
Jack Twyman
United Stationers Inc.
2200 East Golf Road
Des Plaines, Illinois 60016
SCHEDULE A
----------
Shareholder Number of
----------- Shares
---------
Fishman Family Investment Partnership 586,134
Joan Fishman Charitable Remainder Trust u/a/d 50,000
2/1/95
Jerold A. Hecktman Family Investment Partnership 902,795
Jerold A. Hecktman 4,385
Jerold and Ruth Hecktman Charitable Remainder 200,000
Trust u/a/d 2/1/95
Melvin Hecktman 6,667
Melvin L. Hecktman Family Investment Partnership 203,835
Melvin and Judith Hecktman Charitable Remainder 80,000
Trust u/a/d 2/1/95
MLH Investment Partnership 863,670
Mills Family Investment Partnership 533,197
Barbara Mills Charitable Remainder Trust u/a/d 50,000
2/1/95
Wolf Family Investment Partnership 921,057
Barbra Wolf Savage Charitable Remainder Trust 133,333
u/a/d 2/1/95
Joel D. Spungin 101,468
Joel and Marilyn Spungin Charitable Remainder 33,333
Trust u/a/d 2/1/95
Joel D. Spungin Investment Partnership 1,000
Joel D. Spungin Family Trust 57,682
Marilyn G. Spungin 7,648
Debra A. Spungin 4,856
Marc A. Spungin 4,868
Steven M. Spungin 4,856
---------
Total 4,750,784