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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
May 6, 1998
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Date of Report (Date of earliest event reported)
Salton/Maxim Housewares, Inc.
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(Exact name of registrant as specified in its charter)
Delaware 0-19557 36-3777824
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(State or other jurisdiction (Commission (IRS Employer
of incorporation) File Number) Identification No.)
550 Business Center Drive, Mount Prospect, Illinois 60056
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(Address of principal executive offices) (Zip Code)
(708) 803-4600
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(Registrant's telephone number)
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ITEM 5. OTHER EVENTS.
On May 6, 1998, Salton/Maxim Housewares, Inc. ("Salton") entered into a
Stock Agreement (the "Stock Agreement") with Windmere-Durable Holdings, Inc.
("Windmere"), the 50% stockholder of Salton. Subject to the terms and
conditions of the Stock Agreement, Windmere has granted Salton the right (the
"Salton Option") to purchase the 6,535,072 shares of Salton common stock owned
by Windmere for $12 per share in cash plus a $15 million subordinated
promissory note. The note, which is payable six and one-half years from the
closing date of the Salton Option and bears interest at 4% per annum payable
annually, is subject to offsets of 5% of the total purchase price paid by
Salton for product purchases from Windmere and its affiliates during the term
of the note. The principal amount of the note is also subject to reduction in
the event Salton's distribution and marketing agreement with Kmart Corporation
is terminated for any reason. The Salton Option must be exercised by Salton on
or prior to June 30, 1998 and must close on or prior to October 30, 1998.
The Stock Agreement provides for various commercial and other arrangements
between the parties in the event that Salton acquires Windmere's 50% interest
in Salton, including: (i) Windmere's simultaneous payment in full of its
promissory note in the principal amount of $10,847,620, which note was issued
to Salton in July, 1996; (ii) Salton's repurchase for approximately $3.3
million of Windmere's option to purchase up to 458,500 shares of Salton, which
option was granted to Windmere in July, 1996; and (iii) the continuation of
various commercial and other arrangements, including those relating to Kmart,
subject to certain modifications.
If Salton fails to exercise the Salton Option on or prior to June 30, 1998
or to close the purchase of Windmere's 50% interest on or prior to October 30,
1998, then Windmere has the right (the "Windmere Option") to acquire all of the
shares of Salton it does not own in a tender offer and/or merger for $14.27 per
share in cash or in registered shares of Windmere common stock. The Windmere
Option must (i) be exercised by Windmere within 65 days of the earlier of
Salton's failure to exercise the Salton Option or failure to close the purchase
of Windmere's 50% interest and (ii) close within 150 days of Windmere's
exercise of the Windmere Option. Except for the exercise and consummation of
the Windmere Option, the provisions of the Stockholder Agreement dated July 11,
1996 between Salton and Windmere remain in full force and effect.
In connection with the Stock Agreement, Leonhard Driemann (the Chief
Executive Officer of Salton), David Sabin (the Chairman of Salton) and William
B. Rue (the Chief Operating Officer of Salton) and their respective affiliates
have agreed to tender the shares of Salton they own and/or to vote for any
merger with Windmere in the event the Windmere Option is exercised by Windmere.
The Stock Agreement and the rights and obligations of the parties
thereunder may be terminated on or prior to May 18, 1998 by: (i) Salton if a
special committee of the Board of
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Directors of Salton consisting of Messrs. Frank Devine and Bert Doornmalen does
not determine that the transactions contemplated by the Stock Agreement are in
the best interests of Salton and its stockholders (other than Windmere); or
(ii) Windmere if the Board of Directors of Windmere does not determine that the
transactions contemplated by the Stock Agreement are in the best interests of
Windmere and its stockholders.
The consummation of the transactions contemplated by the Stock Agreement is
subject to a number of further conditions, including the termination of all
applicable waiting periods under the Hart-Scott-Rodino Antitrust Improvements
Act of 1976, as amended, and, if required by the form of transaction,
stockholder approval. There can be no assurance that Salton will purchase
Windmere's 50% interest or, if Salton fails to exercise or close its right to
purchase such interest, that Windmere will acquire all of the shares of Salton
which it does not own.
The foregoing description of the Stock Agreement and the exhibits thereto,
and the transactions contemplated thereby, does not purport to be complete and
is qualified in its entirety by reference to the Stock Agreement and the
exhibits thereto, a copy of which is attached hereto as Exhibit 2.1, and is
hereby incorporated herein by reference. A copy of Salton's press release,
dated May 6, 1998, relating to the above-described transactions is attached
hereto as Exhibit 99.1.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS
Exhibit No. Description
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2.1 Stock Agreement, dated as of May 6, 1998, by and between
Salton/Maxim Housewares, Inc., Windmere-Durable Holdings, Inc.
and the Salton Executive Related Parties (as defined therein)
99.1 Press Release of Salton/Maxim Housewares, Inc., issued May 7,
1998.
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SIGNATURE
Pursuant to the requirements of the Securities and Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
SALTON/MAXIM HOUSEWARES, INC.
/s/ WILLIAM B. RUE
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William B. Rue
Dated: May 6, 1998 Senior Vice President and
Chief Operating Officer
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EXHIBIT INDEX
Exhibit No. Description
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2.1 Stock Agreement, dated as of May 6, 1998, by and between
Salton/Maxim Housewares, Inc., Windmere-Durable Holdings, Inc.
and the Salton Executive Related Parties (as defined therein)
99.1 Press Release of Salton/Maxim Housewares, Inc., issued May 7,
1998.
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EXHIBIT 2.1
STOCK AGREEMENT
Stock Agreement (this "Agreement") dated as of May 6, 1998 by and among:
I. SALTON/MAXIM HOUSEWARES, INC. ("Salton" or the "Company"), a Delaware
corporation,
II. WINDMERE-DURABLE HOLDINGS, INC. ("Windmere"), a Florida corporation, and
III. the following additional parties who have executed this Agreement
("Salton Executive Related Parties") only for purposes of Sections 2.03,
4, 7, 8.02, 10.03, 11.03 and Article 12 hereof: David C. Sabin, Leonhard
Dreimann, William B. Rue, Duquesne Financial Corporation and Dominator
Investors Group.
WITNESSETH:
A. Pursuant to a Stockholder Agreement dated July 11, 1996 (the
"Stockholder Agreement") between Salton and Windmere, the Board of Directors of
Salton consists of four directors designated by Windmere (the "Windmere
Directors") and four directors not designated by Windmere (the "Other
Directors").
B. The Board of Directors of Salton has appointed a special committee of
the Board of Directors consisting of two outside Directors, Bert Doornmalen and
Frank Devine (the "Committee"), for the purpose of reviewing for the benefit of
the stockholders of Salton other than Windmere the terms of this Agreement.
C. The parties desire to enter into this Agreement and, subject to the
determination on or prior to May 18, 1998 by (i) the Committee that this
Agreement and the transactions contemplated hereby are in the best interests of
Salton and its stockholders (other than Windmere) and (ii) the Windmere Board
of Directors that this Agreement and the transactions contemplated hereby are
in the best interests of Windmere and its stockholders, to consummate the
transactions contemplated hereby.
THEREFORE, Salton, Windmere and the Salton Executive Related Parties agree
as follows:
1. SALTON OPTION.
1.01 Salton Option. Subject to the terms and conditions set forth below,
Windmere hereby grants to Salton an irrevocable option (the "Salton
Option") to purchase:
(i) all, but not less than all, of the 6,535,072 outstanding shares
of common stock of Salton, par value $.01 per share (each referred to as
a "Share"), owned by Windmere ("Windmere Salton Shares") at a purchase
price of $12.00 per Share in cash; and
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(ii) an option owned by Windmere to purchase up to 485,000 Shares
(the "Windmere Prior Option") for an aggregate purchase price equal to
the product of (x) 485,000 (less the number of Shares previously acquired
by Windmere upon any exercise of the Windmere Prior Option prior to the
Salton Option Closing (as defined below)) multiplied by (y) $7.17.
In addition to the aggregate cash amount required to purchase from Windmere:
(x) all of the Windmere Salton Shares and (y) the Windmere Prior Option owned
by Windmere, at the Salton Option Closing Salton shall also deliver to Windmere
a $15,000,000 promissory note executed by Salton payable to the order of
Windmere containing the terms and conditions and in the form attached hereto as
Exhibit A (the "Salton Note"). In order to exercise the Salton Option, both
the Windmere Salton Shares and the Windmere Prior Option must be purchased.
The aggregate amount owing under subsection 1.01 (i) and (ii) above plus the
Salton Note to be delivered to Windmere at the Salton Option Closing is
sometimes referred to herein as the "Total Windmere Purchase Consideration."
1.02 Exercise of Salton Option. The Salton Option may be exercised by
Salton at any time on or prior to 5:00 P.M., Central Daylight Savings
Time, on June 30, 1998 ("Salton Outside Exercise Date"). Salton shall
exercise the Salton Option by giving a written notice ("Salton Exercise
Notice") to Windmere on or prior to the Salton Outside Exercise Date
electing to exercise the Salton Option. The Salton Exercise Notice shall
be accompanied by:
(i) a letter addressed to Windmere from the Committee: (x) stating
that it has duly approved (by resolution) the exercise of the Salton
Option and (y) estimating the date on which the closing of the Salton
Option (the "Salton Option Closing") will occur; provided, however, that
such estimate shall not affect the right of Salton to close the exercise
of the Salton Option in accordance with the terms and conditions of this
Agreement at any time on or before the Salton Outside Expiration Date (as
defined below);
(ii) one of the following as set forth below:
A. a letter from a nationally recognized investment banking
firm to the effect that, based on its experience, its knowledge of
the public and institutional investment market, its review of the
Company's business and financial condition, and prior discussions
with potential investors, it is highly confident that it can arrange
for a funding to the Company that will provide sufficient funds to
permit Salton to pay Windmere the cash portion of the Total Windmere
Purchase Consideration prior to the Salton Outside Expiration Date;
such letter may contain customary conditions with respect to
providing the funding, including the
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absence of bankruptcy or other material adverse events to Salton's
business and financial condition; or
B. a letter from an investment banking firm to the effect that,
based on its experience, its knowledge of the institutional
investment market, its review of the Company's business and financial
condition, and prior discussions with potential investors, it is
highly confident that it can arrange for a funding to the Company
that will provide sufficient funds to permit Salton to pay Windmere
the cash portion of the Total Windmere Purchase Consideration prior
to the Salton Outside Expiration Date; such letter may contain
customary conditions with respect to providing the funding, including
the absence of bankruptcy or other material adverse events to
Salton's business and financial condition; provided, however, that:
(i) such letter shall identify the source or sources of the funding;
(ii) such sources shall be of a type, including as examples, but not
limited to, insurance companies, pension funds or investment
partnerships, that a reasonable investor would determine are capable
of supplying the funding required; and (iii) such investment banking
firm shall supply with its letter, non-binding commitment letters or
letters of intent from such funding sources to the effect that they
expect to provide such funding, subject to customary conditions with
respect to providing the funding, including documentation, due
diligence and the absence of bankruptcy or other material adverse
events to Salton's business and financial condition; or
C. a letter from an institutional lender or institutional
investor stating that it is confident that it can arrange for and
provide the funds necessary for the payment to Windmere of the
Windmere Purchase Price prior to the Salton Outside Expiration Date;
such letter may contain customary conditions with respect to
providing the funding, including documentation, due diligence and
the absence of bankruptcy or other material adverse events to
Salton's business and financial condition.
(iii) if the alternative letters to be provided by the Committee
identified in subsection (ii) above related to the sources of funding for
the exercise of the Salton Option do not also provide, concurrently with
the payment to Windmere of the Windmere Purchase Price, for the payment in
full of the indebtedness of Salton owing to Foothill Capital Corporation
("Foothill"), the current primary lender to Salton which holds the
Windmere Prior Note (defined below) in pledge as collateral for Foothill's
loans to Salton, then the letter from the Committee exercising the Salton
Option shall be accompanied by a letter from Foothill to Windmere to the
effect that the Windmere Prior Note will be released for delivery to
Windmere on or prior to the Salton Option Closing upon consummation of
the transactions contemplated by the exercise of the Salton Option.
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Salton shall give Windmere at least five (5) business days notice of the date
and time of the Salton Option Closing, which will be held at the Chicago
offices of Sonnenschein Nath & Rosenthal or such other place as the parties
hereto shall agree.
1.03 Conditions to the Salton Option Closing. The obligation of each of
Windmere and Salton to consummate the transactions contemplated by the
exercise of the Salton Option is subject to the following conditions:
(i) any waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), applicable to the
sale of the Windmere Salton Shares to be purchased pursuant to the Salton
Option shall have expired or been terminated;
(ii) there shall be no preliminary or permanent injunction,
restraining order or other order by any court of competent jurisdiction
that restricts, prevents or prohibits the delivery of the Shares pursuant
to the Salton Option;
(iii) the Salton Option Closing shall have occurred on or prior to
October 30, 1998 (the "Salton Outside Expiration Date"), provided that
the conditions set forth in this subsection 1.03 (iii) and subsection
1.03(ii) immediately above shall not be available to any party whose
failure to fulfill any obligation under this Agreement, or whose
commencement of a legal proceeding, has been the proximate cause of the
failure of the Salton Option Closing to occur on or prior to the Salton
Outside Expiration Date;
(iv) If the funds for the purchase of the Windmere Salton Shares
and the Windmere Prior Option are provided by Salton, then Salton shall
deliver to Windmere an opinion of Houlihan Lokey Howard & Zukin Inc.,
Duff & Phelps (or another nationally recognized independent firm in the
business of making the analysis required by such opinion) to the effect
that, upon the completion of, and after giving effect to: (x) the
transactions contemplated by the purchase of the Windmere Salton Shares
and of the Windmere Prior Option and the issuance by Salton of the Salton
Note and (y) the financing obtained by Salton in connection with such
transactions, Salton: (i) would not be insolvent or become insolvent as
a result of such transactions; (ii) would not have unreasonably small
capital for its business; and (iii) would not incur debts that would be
beyond the ability of Salton to pay as such debts matured;
(v) Windmere shall have received an opinion of Sonnenschein Nath &
Rosenthal, counsel for Salton, or of independent counsel to the purchaser
of the Windmere Salton Shares and the Windmere Prior Option if Salton is
not the purchaser, to the effect that the purchase of such Shares pursuant
to the Salton Option (a) has been duly authorized by all required legal
action on the part or Salton of such purchaser, as the case may be), (b)
does not contravene any law, rule, or regulation or any order or decree
binding on Salton (or such purchaser), (c) does not conflict with or
result in a breach of any material
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agreement or instrument known to such counsel binding on Salton (or such
purchaser), and (d) does not require the consent or authorization of any
governmental authority which has not been obtained.
1.04 Salton Option Closing. At the Salton Option Closing, Windmere will
deliver to the purchaser(s): (i) a certificate or certificates evidencing
all of the Windmere Salton Shares to be purchased by the purchaser(s)
pursuant to the Salton Option, each such certificate being duly endorsed
in blank and accompanied by such stock powers and such other documents as
may be reasonably necessary to transfer record ownership of such Shares
into the name of the purchaser(s) on the stock transfer books of Salton;
and (ii) an assignment from Windmere of the Windmere Prior Option. The
purchaser(s) will purchase the Windmere Salton Shares and the Windmere
Prior Option for the Total Windmere Purchase Consideration; payment of
the cash portion of the Total Windmere Purchase Consideration shall be
made by wire transfer of immediately available funds to an account
designated by Windmere and the Salton Note shall be executed and
delivered by Salton to Windmere.
1.05 Windmere Prior Note Owing to Salton. Notwithstanding anything to
the contrary in the promissory note dated July 11, 1996 in the principal
amount of $10,847,620 issued by Windmere to Salton (the "Windmere Prior
Note"), at the Salton Option Closing, and simultaneously with the payment
of the cash portion of the Total Windmere Purchase Consideration to
Windmere, Windmere shall pay in full the principal amount of the Windmere
Prior Note, plus accrued interest thereon to the date of payment, by wire
transfer in immediately available funds, as designated by Salton, to
either an account of Salton or an account of Foothill.
1.06 Indemnification. All rights to indemnification existing in favor
of the present or former directors of Salton shall survive the Salton
Option Closing and shall continue in full force and effect for six years
after the Salton Option Closing, and Salton shall cause to be maintained
in effect for not less than six years after the Salton Option Closing
policies of directors' and officers' liability insurance providing the
same coverage as those maintained by Salton on the date hereof with
respect to matters existing or occurring at or prior to the Salton Option
Closing.
2. WINDMERE OPTION.
2.1 Windmere Option. Upon the earlier to occur of either: (i) Salton
failing to deliver to Windmere the Salton Exercise Notice on or prior to
the Salton Outside Exercise Date or (ii) the Salton Option Closing failing
to occur on or prior to the Salton Outside Expiration Date, Windmere shall
have 65 days to deliver to Salton a written notice (the "Windmere
Exercise Notice") electing (the "Windmere Option") to acquire, in
accordance with the terms of this Agreement, all of the outstanding Shares
of Salton which it does not own, at Windmere's election, pursuant to
either (i) a tender offer of
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Windmere to all other Salton stockholders offering to acquire not less
than 100% of all of the outstanding Shares of Salton not owned by
Windmere (the "Tender Offer"), and/or (ii) a merger pursuant to which
Salton would become a wholly-owned subsidiary of Windmere or an affiliate
of Windmere (the "Merger", and together with the Tender Offer, the
"Windmere Transactions"). The Windmere Exercise Notice shall contain an
irrevocable offer from Windmere to acquire, pursuant to either one or
both of the Windmere Transactions designated by Windmere, all Shares of
Salton not owned by Windmere at a per Share consideration of $14.27 per
Share to be paid either:
(i) in cash or
(ii) that number of shares of Windmere common stock for each Share
of Salton equal to the Exchange Ratio.
The "Exchange Ratio" means the quotient (rounded to the nearest 1/100,000)
determined by dividing $14.27 by the average closing price for the Windmere
common stock (as reported on the New York Stock Exchange Inc. ("NYSE")
Composite Transactions reporting system as published in The Wall Street Journal
or, if not published therein, in another authoritative source) for the 30
trading days ending two business days prior to the expiration of the Tender
Offer or, if there is no Tender Offer, the effective date of the Merger.
2.02 Windmere Transactions Agreement. Promptly after receipt of the
Windmere Exercise Notice, Windmere and Salton shall enter into an
agreement (the "Windmere Transactions Agreement") which shall provide
that:
(i) If the consideration payable by Windmere in the Windmere
Transactions is Windmere common stock, Windmere will, as promptly as
practicable and prior to consummation of the Windmere Transactions: (x)
register such stock under the Securities Act of 1933 and qualify such
stock for issuance in such states as is necessary in order to effect the
issuance of such stock to Salton stockholders and (y) list such stock on
the NYSE so that it can be, when delivered to the Salton stockholders
pursuant to the Windmere Transactions, sold immediately without
restrictions;
(ii) Each of Salton and Windmere will use its reasonable best
efforts to take all actions to close the Tender Offer and/or the Merger
as soon as possible, as permitted under Delaware law and the rules and
regulations of the Securities and Exchange Commission (the "SEC")
(without limiting the generality of the foregoing, each of Salton and
Windmere will use its reasonable best efforts to obtain any required
shareholder approvals of the Windmere Transactions as soon as possible);
(iii) Upon the closing of the Merger, Windmere shall pay each
holder of an option to purchase Shares (whether or not then exercisable),
in consideration of the cancellation of such option, an amount equal to
the excess, if any, of $14.27 over the per
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Share exercise price of such option, multiplied by the number of Shares
subject to such option, payable in the same consideration (cash or
registered Windmere common stock) paid to the other Salton stockholders
in the Merger; provided, however, that if the Windmere Transactions
include a Tender Offer, such payments shall be made no later than 60 days
after the closing of the Tender Offer;
(iv) the sole conditions to the obligation of each of Windmere and
Salton to consummate the Windmere Transactions are: (u) any waiting
period under the HSR Act applicable to the Windmere Transactions shall
have expired or been terminated; (v) all requisite shareholder approvals
shall have been obtained; (w) there shall be no preliminary or permanent
injunction or other order by any court of competent jurisdiction
restricting, preventing or prohibiting the Windmere Transactions; (x) the
Tender Offer and/or the Merger shall have been completed within 150 days
after execution of the Windmere Transactions Agreement (the "Windmere
Expiration Date"); (y) with respect to Windmere's obligation to
consummate the Windmere Transactions, no material adverse change in the
business or financial condition of Salton shall have occurred since the
date of the Windmere Transactions Agreement; and (z) with respect to
Salton's obligation to consummate the Windmere Transactions, if the
consideration payable is Windmere common stock, no material adverse
change in the business or financial condition of Windmere shall have
occurred since the date of the Windmere Transactions Agreement; provided
that the conditions set forth in this clause 2.02(iv) shall not be
available to any party whose failure to fulfill any obligation under this
Agreement or the Windmere Transactions Agreement, or whose commencement
of a legal proceeding, has been the proximate cause of the failure of the
Windmere Transactions to occur on or prior to the Windmere Expiration
Date;
(v) all rights to indemnification existing in favor of the present
or former directors, officers, employees and agents of Salton or any of
its subsidiaries shall survive the Windmere Transactions and shall
continue in full force and effect for six years after the Tender Offer,
or if there is no Tender Offer, the Merger, and Windmere shall cause to
be maintained in effect for not less than six years after the Tender
Offer, or if there is no Tender Offer, the Merger, policies of directors'
and officers' liability insurance providing the same coverage as those
maintained by Salton on the date hereof with respect to matters existing
or occurring at or prior to the consummation of the Windmere
Transactions; and
(vi) the Windmere Transactions Agreement may only be terminated by
(x) the mutual consent of Windmere or Salton or (y) either Salton or
Windmere if the conditions to the Tender Offer or the Merger cannot be
satisfied.
2.03 Salton Executive Related Parties to Sell. If Windmere duly exercises
the Windmere Option hereunder, each Salton Executive Related Party
irrevocably agrees to accept and to tender his or its Shares within 10
days following the commencement of the
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Tender Offer, and to vote for the Merger (and provide an irrevocable
proxy to Windmere for such purpose). Subject to the exercise of his
fiduciary duties under applicable law, each Salton Executive Related
Party that is a director of Salton agrees to vote in favor of the
Windmere Transactions in his capacity as a Director of Salton and to
recommend approval of the Windmere Transactions to the stockholders of
Salton other than Windmere.
3. ELIMINATION OF TIME RESTRICTION ON WINDMERE PURCHASE OF SALTON SHARES
UNDER STOCKHOLDER AGREEMENT.
3.01 Stockholder Agreement. Except for the exercise of the Windmere
Option and the consummation of the Windmere Transactions in accordance
with the terms of this Agreement, the provisions of the Stockholder
Agreement shall remain in full force and effect in accordance with its
existing terms. Windmere agrees that neither it nor its affiliates (as
defined in the Stockholder Agreement) shall be entitled to purchase any
Shares pursuant to Section 2.1.3 of the Stockholder Agreement if any
Third Party offer (as referred to in the Stockholder Agreement) is made
in connection with the exercise of the Salton Option.
3.02 No Further Share Purchase. If Salton exercises and closes the
Salton Option, Windmere and Salton each agree not to, directly or
indirectly through an affiliate, purchase any shares of capital stock of
the other during the period ending on the tenth (10th) anniversary of the
date hereof.
4. TERM. This Agreement may be terminated (i) by mutual consent of Windmere
and Salton, (ii) by Salton if the Committee fails to determine on or prior
to May 18, 1998 that this Agreement and the transactions contemplated
hereby are in the best interests of Salton and its stockholders (other
than Windmere), or (iii) by Windmere if the Windmere Board of Directors
fails to determine on or prior to May 18, 1998 that this Agreement and the
transactions contemplated hereby are in the best interests of Windmere and
its stockholders.
5. JOINT MARKETING AGREEMENT. The parties hereto agree that the Marketing
Cooperation Agreement dated as of July 11, 1996 by and between Salton and
Windmere is terminated effective as of the date hereof and shall forthwith
become void and have no effect. As a result of this Agreement, there will
remain no outstanding issues under the Joint Marketing Agreement between
Salton and Windmere and no claims by Salton relating to any past conduct
of any Windmere Directors in connection with such Agreement or such
Director's receipt of information from Salton. Salton agrees that any
information with respect to Salton or its business which is furnished or
communicated to Windmere or its directors, officers, affiliates or agents
by or on behalf of Salton after the date hereof which Salton believes is
confidential will be identified as confidential information prior to being
furnished or communicated to such persons or entities.
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6. WHITE-WESTINGHOUSE; K-MART AND FARBERWARE SUPPLY AGREEMENT. If the
Salton Option is exercised and closed, at Salton Option closing, Salton
and Windmere shall execute and deliver agreements with respect to matters
concerning White Consolidated Industries, Inc, K-Mart, Service
Merchandise, Inc. and Farberware, Inc. in the form of Exhibits B, C and E
attached hereto.
7. MUTUAL RELEASES. Simultaneously with the execution of this Agreement,
each of Salton, Windmere and the Salton Executive Related Parties have
entered into mutual releases in the form of Exhibit D attached hereto
which shall become effective only upon the consummation of the
transactions contemplated by either the Salton Option or the Windmere
Option.
8. RESIGNATIONS.
8.01 Windmere Directors. Simultaneously with the execution of this
Agreement, each of Messrs. David Friedson, Harry Schulman, Laurence S.
Chud, M.D. and James Connelly have executed an irrevocable resignation of
their position as a director of Salton effective only upon the Salton
Option Closing. So long as this Agreement is in effect, any director of
Salton designated by Windmere will execute such a resignation as a
condition to his or her election to the Board of Directors of Salton.
8.02 Non-Windmere Directors and Salton Executive Officers. Simultaneously
with the execution of this Agreement, each of Messrs. Dreimann and Sabin
have executed an irrevocable resignation of their position as directors
and officers of Salton, and William B. Rue has executed an irrevocable
resignation as Chief Operating Officer of Salton, effective in each case
only upon the acquisition of all of the Salton Shares owned by the Salton
Executive Related Parties pursuant to the closing of the Tender Offer, or
if there is no Tender Offer, the Merger.
9. THE COMMITTEE.
9.01 From and after the date hereof, the Committee shall (i) have all
authority granted to the Committee by the Board of Directors, and (ii)
consist of two directors who shall initially be Frank Devine and Bert
Doornmalen. In the event that either of such initial directors resigns,
is incapable of acting as a director or otherwise ceases to be a director
for any reason, then the other initial director shall have the right to
designate a replacement for such director. If, for any reason at any
time, no director is serving on the Committee, then the non-Windmere
designated directors on the Board of Directors of Salton shall have the
right to designate two persons to serve on the Committee (none of whom
shall be directors, officers, employees or affiliates of Windmere). The
Committee shall continue to exist and have the authority granted to it by
the Board of Directors; provided that if Salton shall have failed to
exercise the Salton Option or, if Salton has exercised the Salton Option
but shall have failed to close the Salton Option by
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the Salton Outside Expiration Date, then the Committee's sole authority
shall be as provided in Section 9.02 below.
9.02 Notwithstanding anything in this Agreement to the contrary, the
affirmative vote of a majority of the members of the Committee (who shall
act as an independent committee of the Board of Directors of Salton for
this purpose) shall be required, and alone shall be sufficient, to take
action required by or of Salton to (i) amend or terminate this Agreement
or the Windmere Transactions Agreement, (ii) exercise or waive any of
Salton's rights or remedies hereunder or under the Windmere Transactions
Agreement, or (iii) extend the time for performance of Windmere's
obligations hereunder or under the Windmere Transactions Agreement.
10. REPRESENTATIONS AND WARRANTIES.
10.01 Representations and Warranties of Each of Salton and Windmere.
Each of Salton and Windmere hereby represents and warrants to the other
parties hereto that it has the corporate power and authority to execute,
deliver and perform this Agreement; such execution, delivery and
performance have been duly authorized by all necessary corporate action
on its part; and this Agreement has been duly executed and delivered by
it and constitutes the valid and binding agreement of it, enforceable
against it in accordance with its terms, subject as to enforcement to
bankruptcy, insolvency and similar laws of general applicability relating
to or affecting creditors' rights and to general equity principles.
10.02 Windmere. Windmere hereby represents and warrants to Salton that
it is the owner (both beneficially and of record) of 6,535,072 Shares.
Except for such Shares and the Windmere Prior Option, Windmere is not the
record or beneficial owner (as defined in Rule 13d-3 under the Securities
Exchange Act of 1934) of, and does not have any other rights of any
nature to acquire, any additional shares of capital stock of Salton.
Windmere owns all of the Windmere Salton Shares and the Windmere Prior
Option free and clear of all security interests, liens, claims, pledges,
options, rights of first refusal, agreements, limitations on Windmere's
voting rights, charges and other encumbrances of any nature whatsoever.
Upon the exercise of the Salton Option and the delivery to the
purchaser(s) by Windmere of a certificate or certificates evidencing the
delivered Windmere Salton Shares and an assignment relating to the
Windmere Prior Option, the purchaser(s) will receive good, valid and
marketable title to such Shares and the Windmere Prior Option, free and
clear of all security interests, liens, claims, pledges, options, rights
of first refusal, agreements, limitations on purchaser(s) voting rights,
charges and other encumbrances of any nature whatsoever.
10.03 Salton Executive Related Parties. The Salton Executive Related
Parties hereby represent and warrant to Windmere that they are the
beneficial owners of an aggregate of 1,111,974 Shares at the date hereof
free and clear of all security interests, liens,
-10-
<PAGE> 11
claims, pledges, options, rights of first refusal, agreements,
limitations on voting rights, charges and other encumbrances of any
nature whatsoever (except for the rights of American National Bank and
Trust Company ("ANB") as a secured party holding such Shares in pledge).
Upon any tender or surrender of the Salton Executive Related Parties'
Shares to Windmere pursuant to the Windmere Transactions, Windmere will
receive good, valid and marketable title to such Shares, free and clear
of all security interests, liens, claims, pledges, options, rights of
first refusal, agreements, charges or other encumbrances of any nature
whatsoever.
11. COVENANTS.
11.01. Windmere. Windmere hereby covenants and agrees that Windmere
shall take all actions, and forbear from all actions, in each case,
necessary in order that all of Windmere's representations and warranties
are true and correct and Windmere fulfills all of its obligations
hereunder.
11.02. Salton. Salton hereby covenants and agrees that Salton shall
take all actions, and forbear from all actions, in each case, necessary
in order that all of Salton's representations and warranties are true and
correct and Salton fulfills all of its obligations hereunder.
11.03 Salton Executive Related Parties. Each of the Salton Executive
Related Parties hereby covenants and agrees that he or it shall take all
other actions, and forebear from all actions, in each case necessary in
order that all of such person's representations are true and correct and
such person fulfills all of his or its obligations hereunder.
12. MISCELLANEOUS.
12.01. Specific Performance. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this
Agreement were not performed by the applicable party hereto in accordance
with the specific terms of this Agreement or were otherwise breached.
Each of the parties hereto shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement by the other and to
enforce specifically the terms and provisions hereof in addition to any
other remedy to which such party is entitled at law or in equity, and
each party waives the posting of any bond or security in connection with
any proceeding related thereto.
12.02 Expenses. Except as may otherwise be provided herein, no party
hereto shall be responsible for the payment of any other party's expenses
incurred in connection with this Agreement.
12.03 Third Party Beneficiaries. The terms and provisions of this
Agreement are intended solely for the benefit of each party hereto and
his or its respective successors
-11-
<PAGE> 12
and permitted assigns, and it is not the intention of the parties to
confer third party beneficiary rights upon any other person or entity.
12.04 Amendments. This Agreement may not be modified, amended, altered
or supplemented except upon the execution and delivery of a written
agreement executed by each of Windmere and the Committee, on behalf of
Salton.
12.05 Assignment. Salton may assign its rights to purchase the Windmere
Salton Shares and the Windmere Prior Option hereunder but Salton and the
Salton Executive Related Parties shall remain directly liable to Windmere
for the performance of their respective obligations hereunder.
12.06 Notices. All notices, requests, consents and other communications
hereunder shall be in writing and delivered as provided for in the
Stockholder Agreement.
12.07 Governing Law. This Agreement shall be governed by, and
interpreted in accordance with, the laws of the State of Delaware,
without regard to the conflict of law principles thereof. All actions
and proceedings arising out of or relating to this Agreement shall be
heard and determined in any state or Federal court sitting in Delaware.
Each of the parties hereto (i) consents to submit such party to the
personal jurisdiction of any Federal court located in the State of
Delaware or any Delaware state court in the event any dispute arises out
of this Agreement or any of the transactions contemplated hereby, (ii)
agrees that such party will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court,
(iii) agrees that such party will not bring any action relating to this
Agreement or the transactions contemplated hereby in any court other than
a Federal court sitting in the State of Delaware or a Delaware state
court and (iv) waives any right to trial by jury with respect to any
claim or proceeding related to or arising out of this Agreement or any of
the transactions contemplated hereby.
12.08 Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed to constitute an original.
This Agreement shall become effective when one counterpart signature page
has been signed by each party hereto and delivered to each of the other
parties.
12.09 Effect of Headings. The descriptive headings contained herein are
for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement.
12.10 Further Assurances. Each of the parties hereto agrees to execute
and deliver all such further documents, certificates and instruments, and
take all such further reasonable action as may be necessary or reasonably
appropriate, in order to consummate the transactions contemplated hereby.
-12-
<PAGE> 13
12.11 Additional Agreements. Subject to the terms and conditions herein
provided, each of Salton and Windmere agrees to use its reasonable best
efforts to take, or cause to be taken, all action and to do, or cause to
be done, all things necessary, proper or advisable under applicable laws
and regulations to consummate and make effective the transactions
contemplated by this Agreement, including using its reasonable best
efforts to obtain all necessary waivers, consents and approvals and to
effect all necessary registrations and filings. Without limiting the
generality of the foregoing, (i) each of Salton and Windmere agrees that
upon delivery of the Salton Exercise Notice or the Windmere Exercise
Notice, as the case may be, it will use its reasonable best efforts to
promptly file notifications under the HSR Act and to respond to any
inquiries from governmental authorities in connection with the HSR Act;
(ii) each of Salton and Windmere agrees to use its reasonable best
efforts to remove any injunctions or other impediments or delays, legal
or otherwise, to the transactions contemplated by this Agreement; (iii)
Windmere agrees that it will vote all Windmere Salton Shares it
beneficially owns and cause the Windmere designated Directors, subject to
the exercise of their fiduciary duties under applicable law, to vote as
Directors in favor of any transaction or other action involving the
Salton Option or the Windmere Option and against any action that would
reasonably be expected to impede, interfere with or delay the
transactions contemplated by this Agreement; and (iv) Salton agrees that
it will vote all Windmere shares it beneficially owns in favor of the
Windmere Transactions (and cause a Schedule 14D-9
Solicitation/Recommendation Statement, if required, to be filed with the
SEC which Statement shall, subject to the exercise of their fiduciary
duties as directors, contain the recommendation of the Committee that
Salton stockholders tender their Shares to Windmere in connection with
such transaction) and will vote against any action that would reasonably
be expected to impede, interfere with or delay the transactions
contemplated by this Agreement.
-13-
<PAGE> 14
IN WITNESS WHEREOF, the undersigned, being duly authorized, have set forth
their signatures.
WINDMERE-DURABLE HOLDINGS, INC. SALTON/MAXIM HOUSEWARES, INC.
By: /s/ David M. Friedson By: /s/ Leonhard Dreimann
------------------------------- -----------------------------
Its: PRESIDENT & CHAIRMAN Its: PRESIDENT
------------------------------- -----------------------------
The following parties sign this Agreement for the purposes of making their
agreements set forth in Sections 2.03, 4, 7, 8.02, 10.03, 11.03 and Article 12
hereof:
/s/ David C. Sabin /s/ Leonhard Dreimann
---------------------------- ----------------------------
David C. Sabin Leonhard Dreimann
/s/ William B. Rue
----------------------------
William B. Rue
Duquesne Financial Corporation Dominator Investors Group
By: /s/ David C. Sabin By: /s/ Leonhard Dreimann
------------------------------ -------------------------
Its: Its:
------------------------------ -------------------------
-14-
<PAGE> 15
Exhibit A
to
Stock Agreement by and among:
I. Salton/Maxim Housewares, Inc.;
II. Windmere Durable Holdings, Inc.; and
III. Parties designated as Salton Executive
Related Parties
PURCHASE MONEY NOTE DATED AS OF
[CLOSING OF SALTON OPTION] , 1998
1. Principal, Interest, Maturity. As partial payment for the purchase of
shares of stock of Salton/Maxim Housewares, Inc., a Delaware corporation
("Salton"), owned by Windmere Durable Holdings, Inc., a Florida corporation
("Windmere"), pursuant to a Stock Agreement dated as of May 6, 1998 among
Salton, Windmere and third parties, Salton hereby promises to pay to the order
of Windmere the principal amount of Fifteen Million Dollars and no cents
($15,000,000), with simple interest at the annual rate of four percent (4%)
from the date hereof, to be paid annually on the fifteenth day of June,
commencing June 15, 1999. Any unpaid principal balance plus accrued and unpaid
interest shall be due and payable on the last day of the seventy eighth (78th)
full calendar month next following the date hereof. If: (i) accrued and unpaid
interest is not paid in full on any interest payment date ("Interest Default")
or (ii) the principal balance is not paid upon the due date, whether at the
maturity of the Note or upon acceleration as set forth in Section 3 hereof
("Principal Default"), then, in the case of an Interest Default, simple
interest on the unpaid balance of this Note shall accrue on and after the
Interest Default at the rate of eight percent (8%) per annum until the Interest
Default is cured or is waived in writing by the holder of the Note and, in the
case of a Payment Default, simple interest on the unpaid balance of this Note
shall also accrue on and after the Payment Default on the unpaid principal
balance at the rate of eight percent (8%) per annum until payment in full is
made of all accrued and unpaid interest and the unpaid principal balance. In
addition, in the case of any Interest Default or Payment Default, Salton agrees
to pay all costs of collection, including legal fees and out of pocket expenses
and court costs.
2. Affiliate Definition; Credit. As used in this Note, the term
"Affiliate" of Salton or "Affiliate" of Windmere means any person or entity
that is controlled by, under the control of or under common control with a
person or entity within the meaning of Rule 405 adopted by the Securities and
Exchange Commission pursuant to the Securities Act of 1933, as amended.
Commencing as of the date hereof, to the extent that Salton or any Affiliate of
Salton purchases products from Windmere, its manufacturing Affiliate with
offices in Hong Kong, Durable Electrical Metal Factory, Ltd., or any other
Affiliate of Windmere, an amount equal to five percent (5%) of the total
purchase price paid by Salton shall constitute a credit, first, against accrued
and unpaid interest owing on this Note and, next, against the unpaid principal
balance of this Note; provided, however, that such credits shall not be
considered payments, distributions
<PAGE> 16
or sets-offs under Section 3 of this Note; and further provided, that nothing
contained herein shall obligate Salton or any Salton Affiliate to buy any
products from Windmere or any Windmere Affiliate, nor obligate Windmere or any
Windmere Affiliate to sell any products to Salton or any Salton Affiliate.
3. Subordination. The principal balance, accrued and unpaid interest and
all other amounts owing under this Note are expressly made subordinate and
junior, as hereinafter set forth in this Section 3, to the prior payment in
full of all Senior Debt (as that term is hereinafter defined).
3.1. Definition of Senior Debt. As used herein "Senior Debt" shall mean
all indebtedness whenever incurred by Salton for borrowed money, whether
secured or unsecured, with the exception of indebtedness owed to any Affiliate
of Salton, and trade debt. As used in this Section 3.1, the term "Affiliate"
shall not include any investor (other than a Salton Executive Related Party)
who acquires an equity interest in Salton at the closing of the Salton Option
or thereafter provided that such investor's interest represents less than fifty
percent (50%) of the voting interests in Salton or any parent company of
Salton.
3.2. Acceleration. If: (i) Senior Debt in an aggregate amount, including
principal, accrued interest and other amounts owing on such Senior Debt, in
excess of one million dollars matures, or is otherwise due and payable (whether
by acceleration or otherwise) and remains undischarged for a period in excess
of one hundred and twenty (120) days or (ii) Salton files a petition, as a
debtor, for relief under the United States Bankruptcy Code or an action seeking
to place Salton in involuntary bankruptcy under such Code is filed and Salton
does not oppose such action or such action is not discharged within sixty (60)
days next following the filing of such action, then, Windmere shall have the
right, on not less than five (5) days notice to Salton, to accelerate the
maturity of this Note, whereupon the remaining principal balance plus accrued
and unpaid interest shall become due immediately, subject to the terms of this
Section 3. Except as specifically set forth in this Section 3.2, Windmere
shall not have the right to accelerate this Note.
3.3 Amendment of Senior Debt. The Senior Debt shall continue to be Senior
Debt and entitled to the benefits of these subordination provisions
irrespective of any amendment, modification or waiver of any term of the Senior
Debt, any extension or renewal of the Senior Debt, or the granting or release
of any collateral or security securing the repayment of the Senior Debt.
3.4 Default in Respect of Senior Debt.
(a) Payment Default. In the event that Salton shall default in the
payment of any principal of, or interest on, any Senior Debt when the
same becomes due and payable, whether at maturity, at a date fixed for
prepayment, by declaration of acceleration or otherwise, then,
-2-
<PAGE> 17
(i) unless and until such default shall have been cured or waived or
shall have ceased to exist, no direct or indirect payment (in cash,
property or securities or by set-off or otherwise) shall be made or agreed
to be made on account of this Note or as a sinking fund for this Note, or
in respect of any redemption, retirement, purchase, prepayment or other
acquisition of this Note, and
(ii) no holder of this Note will take action to accelerate this Note
except as set forth above in Section 3.2, or to commence, or join with any
other creditor in commencing, any bankruptcy, reorganization or insolvency
proceeding with respect to Salton, or will initiate and prosecute any
other action or proceeding (whether at law or in equity) against Salton to
recover all or any part of this Note (unless the agent (or, if there shall
be no agent for the holders of Senior Debt at such time, the holders of
the Senior Debt) shall have agreed in writing in advance to any such
action or proceeding or prosecution, and shall have joined in, such action
or proceeding or prosecution).
(b) Other Defaults. Upon the occurrence of any other "default" (as
defined in any agreement evidencing the Senior Debt) then, unless and until
such default shall have been cured or waived in writing or shall have ceased to
exist,
(i) no direct or indirect payment (in cash, property or
securities or by set-off or otherwise) shall be made or agreed to
be made on account of this Note or as a sinking fund for this Note,
or in respect of any redemption, retirement, purchase, prepayment
or other acquisition of this Note during the period of 180 days
after the occurrence of such default, and
(ii) no holder of this Note will take action to accelerate
this Note except as set forth in Section 3.2 or, for a period of
180 days after the occurrence of such default, commence, or join
with any other creditors in commencing, any bankruptcy,
reorganization or insolvency proceedings with respect to Salton, or
will initiate and prosecute any other action or proceeding (whether
at law or in equity) against Salton to recover all or any part of
this Note (unless the agent (or, if there shall be no agent for the
holders of Senior Debt at such time, the holders of the Senior
Debt) shall have agreed in writing in advance to, and shall have
joined, in such proceeding).
3.5 Insolvency. In the event of
(a) any insolvency, bankruptcy, receivership, liquidation,
reorganization, readjustment, composition or other similar proceeding
which relates to Salton or its property,
(b) any proceeding for the liquidation, dissolution or other
winding-up of Salton, voluntary or involuntary, whether or not involving
insolvency or bankruptcy proceedings,
-3-
<PAGE> 18
(d) any assignment by Salton for the benefit of creditors, or
(d) any other marshalling of the assets of Salton,
then and in any such event:
(i) all Senior Debt shall first be paid in full, in cash or
cash equivalents, before any payment or distribution, whether in
cash, securities or other property, shall be made to any holder of
this Note on account of this Note;
(ii) any payment or distribution, whether in cash, securities
or other property (other than securities of Salton or any other
corporation provided for by a plan or reorganization or
readjustment the payment of which is subordinated, at least to the
extent of this Note as provided in this Section 3, to the payment
of all Senior Debt at the time outstanding and to any securities
issued to the holders of Senior Debt in respect of the Senior Debt
under any such plan or reorganization or readjustment), that would
otherwise (but for this Section 3) be payable or deliverable in
respect of this Note, shall be paid or delivered directly to the
holders of Senior Debt in accordance with the priorities then
existing among such holders of Senior Debt until all Senior Debt
shall have been paid in full, in cash or cash equivalents; and
(iii) If any holder of this Note fails to file a claim or
proof of debt in respect of such this Note in such proceedings at
least five (5) business days prior to the latest date permitted by
rule of law or court order for such filing, then the holders of
Senior Debt shall be authorized (but not obligated) to file such
claim or proof on behalf of such holder of this Note. Each holder
of the this Note agrees that, while it shall retain the right to
vote its claim and otherwise act in any bankruptcy, insolvency or
similar proceeding related to Salton, such holder will not take any
act or vote in any way so as to contest the enforceability of the
subordination provisions set forth herein.
3.6 Turnover of Payments. In the event that
(a) any payment or distribution shall be paid to or collected or
received by any holder of this Note in contravention of any of the terms
of this Section 3 and prior to the payment in full, in cash or cash
equivalents, of the Senior Debt at the time outstanding, and
(b) any holder of such Senior Debt shall have notified the holder
of this Note, within one hundred eighty (180) days of any such payment or
distribution, of the facts by reason of which such collection or receipt
so contravenes this Section 3,
-4-
<PAGE> 19
then and in any such event such holder of this Note will deliver such payment
or distribution, to the extent necessary to pay all such Senior Debt in full,
in cash or cash equivalents to the holders of such Senior Debt and, until so
delivered the same shall be held in trust by such holder of this Note as the
property of the holders of such Senior Debt. If after any amount is delivered
to the holders of Senior Debt pursuant to this Section 3.6 and (i) the holder
of this Note shall be required by an order or judgment of a court of competent
jurisdiction to return a payment (the "Avoided Payment") received by them and
so paid over (in whole or in part) to the holders of Senior Debt, or (ii) the
outstanding Senior Debt shall thereafter be paid in full, in cash or cash
equivalents, without giving effect to such delivery made pursuant to this
Section 3.6, then, in either case, the holders of Senior Debt shall return to
such holder of this Note any amount equal to the amount delivered to such
holders of Senior Debt pursuant to this Section 3.6, so long as (in the case of
the immediately preceding clause (ii) only) after the return of such amount the
Senior Debt shall remain paid in full, in cash or cash equivalents. For
purposes of clause (i) of the immediately preceding sentence, if less than all
of the Avoided Payment was paid over to the holders of Senior Debt and the
holder of this Note is able to satisfy its obligations under such order or
judgment in whole or in part from the portion of the Avoided Payment not so
paid over to the holders of the Senior Debt, the holders of Senior Debt shall
not be required to return any portion of the Avoided Payment in excess of the
amount actually required by the holder(s) of this Note to satisfy its
obligations.
3.7 Obligations Not Impaired. No right of any present or future holder of
any Senior Debt to enforce subordination as herein provided shall at any time
in any way be prejudiced or impaired by (and such right shall remain in full
force and effect notwithstanding):
(a) any act or failure to act on the part of Salton
(including by way of an amendment to the provisions of this Section
3);
(b) any extension or indulgence in respect of any payment or
prepayment of the Senior Debt or any part thereof or in respect of
any other amount payable to any holder of Senior Debt;
(c) any amendment, modification, restatement, or waiver of,
or addition or supplement to, or deletion from, or compromise,
release, consent or other action in respect of, any of the terms of
any Senior Debt or any other agreement which may be relating to any
Senior Debt;
(d) any exercise or non-exercise by any holder of Senior Debt
of any right, power, privilege or remedy under or in respect of any
Senior Debt or this Note, or any waiver of any such right, power,
privilege or remedy or any default in respect of any Senior Debt or
this Note, or any receipt by any holder of Senior Debt of any
collateral security, or any failure of any holder of Senior Debt to
perfect a security interest in any collateral, or any release by
any holder of Senior Debt of any security for the payment of such
Senior Debt;
-5-
<PAGE> 20
(e) any merger or consolidation of Salton or any of its
subsidiaries into or with any of its subsidiaries or into or with
any entity, or any sale, lease or transfer of any or all of the
assets of Salton or any of its subsidiaries to any other entity or
person; or
(f) the absence of any notice to, or knowledge by, any holder
of this Note of the existence or occurrence of any of the matters
or events set forth in the foregoing clauses (a) through (e).
Nothing contained in this Section 3 shall impair, as between Salton and any
holder of this Note, the obligation of Salton to pay to such holder the
principal thereof and interest, on the this Note, as and when the same shall
become due and payable in accordance with the terms thereof, or prevent any
holder of any this Note from exercising all rights, powers and remedies set
forth herein or allowed by applicable law, all subject to the rights of the
holders of the Senior Debt to receive cash, securities or other property
otherwise payable or deliverable to the holder of this Note as provided in this
Section 3.
3.8 Payment of Senior Debt; Subrogation. Upon the payment in full, in
cash or cash equivalents, of all Senior Debt, the holder of this Note shall be
subrogated to all rights of any holder of Senior Debt to receive any further
payments or distributions applicable to the Senior Debt until the this Note
shall have been paid in full, and such payments or distributions received by
the holder of this Note by reason of such subrogation, of cash, securities or
other property that otherwise would be paid or distributed to the holders of
Senior Debt, shall, as between Salton and its creditors other than the holders
of Senior Debt, on the one hand, and the holder of this Note, on the other
hand, be deemed to be a payment by Salton on account of Senior Debt, and not on
account of this Note.
4. Cancellation of Note. If the Distribution and Marketing Agreement
between Salton and K-Mart Corporation dated January 27, 1997, as it may be
amended or renewed, is cancelled by K-Mart prior to June 30, 2004, the
principal balance of this note shall be reduced as of the date of such
cancellation in accordance with the amortization schedule attached hereto as
Schedule I, and, upon such reduction, accrued interest, interest already paid,
and interest accruing after such reduction prior to the maturity of this note
shall be recalculated on the reduced principal balance. To the extent that, on
account of such reduction, interest has been overpaid, such overpayment shall
be offset, first, against the next accruing amounts of interest not yet paid,
and then against the reduced principal balance, but Windmere shall not be
obligated otherwise to return accrued interest or principal already paid.
5. Applicable Law. This Note shall be governed by and interpreted in
accordance with the laws of Delaware without regard to the conflict of laws and
principles thereof.
-6-
<PAGE> 21
6. Notices. Any notices under this Note shall be given as required by the
Stock Agreement.
Salton/Maxim Housewares, Inc.,
a Delaware corporation
By:
--------------------------
Its:
-------------------------
-7-
<PAGE> 22
SCHEDULE I
Principal
Balance in the
Cancelation Event of
No. Prior to Cancelation
[S] [C] [C]
- ----------------------------------
1 11/1/98 168,708.35
2 12/1/98 337,979.05
3 1/1/99 507,814.00
- ----------------------------------
4 2/1/99 678,215.06
5 3/1/99 849,184.12
6 4/1/99 1,020,723.08
- ----------------------------------
7 5/1/99 1,192,833.84
8 6/1/99 1,365,518.30
9 7/1/99 1,538,778.37
- ----------------------------------
10 8/1/99 1,712,615.98
11 9/1/99 1,887,033.05
12 10/1/99 2,062,031.50
- ----------------------------------
13 11/1/99 2,237,613.29
14 12/1/00 2,413,780.35
15 1/1/00 2,590,534.63
- ----------------------------------
16 2/1/00 2,767,878.09
17 3/1/00 2,945,812.70
18 4/1/00 3,124,340.42
- ----------------------------------
19 5/1/00 3,303,463.23
20 6/1/00 3,483,183.12
21 7/1/00 3,663,502.08
- ----------------------------------
22 8/1/00 6,844,422.10
23 9/1/00 4,025,945.19
24 10/1/00 4,208,073.35
- ----------------------------------
25 11/1/00 4,390,808.61
26 12/1/00 4,574,152.98
27 1/1/01 4,758,108.51
- ----------------------------------
28 2/1/01 4,942,677.22
29 3/1/01 5,127,861.15
30 4/1/01 5,313,662.37
- ----------------------------------
31 5/1/01 5,500,082.93
32 6/1/01 5,687,124.88
33 7/1/01 5,874,790.31
- ----------------------------------
34 8/1/01 6,063,081.29
35 9/1/01 6,251,999.91
36 10/1/01 6,441,548.26
- ----------------------------------
37 11/1/01 6,631,728.43
38 12/1/01 8,822,542.54
39 1/1/02 7,013,992.69
- ----------------------------------
40 2/1/02 7,206,081.02
41 3/1/02 7,398,809.63
42 4/1/02 7,592,180.68
- ----------------------------------
43 5/1/02 7,786,196.29
44 6/1/02 7,980,858.63
45 7/1/02 8,176,169.84
- ----------------------------------
46 8/1/02 8,372,132.08
47 9/1/02 8,568,747.54
48 10/1/02 8,766,018.37
- ----------------------------------
49 11/1/02 8,963,946.78
50 12/1/02 9,162,534.95
51 1/1/03 9,361,785.08
- ----------------------------------
52 2/1/03 9,561,699.38
53 3/1/03 9,762,280.06
<PAGE> 23
<TABLE>
<S> <C> <C>
54 4,1,03 9,963,529.34
- ----------------------------------
55 5/1/03 10,165,449.45
56 6/1/03 10,368,042.62
57 7/1/03 10,571,311.11
- ----------------------------------
58 8/1/03 10,775,257.16
59 9/1/03 10,979,883.03
60 10/1/03 11,185,190.99
- ----------------------------------
61 11/1/03 11,391,183.31
62 12/1/03 11,597,862.27
63 1/1/04 11,805,230.15
- ----------------------------------
64 2/1/04 12,013,289.27
65 3/1/04 12,222,041.91
66 4/1/04 12,431,490.40
- ----------------------------------
67 5/1/04 12,641,637.05
68 6/1/04 12,852,484.18
69 7/1/04 13,064,034.14
- ----------------------------------
70 8/1/04 15,000,000.00
71 9/1/04 15,000,000.00
72 10/1/04 15,000,000.00
- ----------------------------------
73 11/1/04 15,000,000.00
- ----------------------------------
74 12,1,04 15,000,000.00
- ----------------------------------
75 1/1/05 15,000,000.00
- ----------------------------------
76 2/1/05 15,000,000.00
- ----------------------------------
77 3/1/05 15,000,000.00
- ----------------------------------
78 4/1/05 15,000,000.00
- ----------------------------------
</TABLE>
Assumes note is issued 10/1/1998.
If the note is issued before or after such
date then the schedule of reductions due
to Kmart cancelation will have to be adjusted
to reflect a different number of monthly
periods prior to July 1, 2004.
<PAGE> 24
Exhibit B
to
Stock Agreement dated May 6, 1998
by and among
Salton/Maxim Housewares, Inc.,
a Delaware corporation ("Salton");
Windmere Durable Holdings, Inc.,
a Florida corporation ("Windmere"); and
Certain Parties Designated as
Salton Executive Related Parties
- --------------------------------------------------------------------------------
Agreement dated [Closing of Salton Option],1998 ("Agreement")
between
Windmere Durable Holdings, Inc.,
a Florida corporation ("Windmere")
and
Salton/Maxim Housewares, Inc.,
a Delaware corporation ("Salton")
WHEREAS:
A. Salton, Windmere and certain parties designated as Salton Executive
Related Parties have entered into a Stock Agreement dated as of May 6, 1998, in
contemplation of the execution and delivery of this Agreement.
B. Under the Stock Agreement, Windmere and Salton have made agreements to
the effect that either Windmere will acquire 100% ownership of Salton or Salton
shall arrange for the purchase of all Salton stock owned by Windmere.
C. Salton and Windmere have entered into certain agreements with third
parties related to the sourcing, manufacturing and marketing of products and it
is necessary for Salton and Windmere to make additional agreements between them
in order to protect and preserve certain commercial advantages and contracts
that each of them enjoys at the date hereof.
D. As used in this Agreement, the term "Affiliate" of Salton or of
Windmere means, with respect to such company, any person or entity that is
under the control of, controlled by or under common control of such company
within the meaning of
<PAGE> 25
Rule 405 adopted by the Securities and Exchange Commission under the Securities
Act of 1933, as amended.
THEREFORE, Windmere and Salton agree as set forth below.
1. Letter Agreement between Salton and Windmere dated April 30, 1997 re
K-Mart. The letter agreement dated April 30, 1997 ("Salton/Windmere K-Mart
Letter Agreement") between Windmere Corporation and Salton, made pursuant to
the Purchase, Distribution and Marketing Agreement by and between Salton and
K-Mart Corporation dated January 27, 1997 ("Salton/K-Mart Agreement") is hereby
amended and restated in its entirety to read as set forth in Exhibit C to the
Stock Agreement.
2. Sublicense Agreement between Windmere and Service Merchandise, Inc.;
Distributor Agreement between Windmere and Salton. Windmere and Service
Merchandise, Inc. ("Service") are parties to a Sublicense and Supply Agreement
dated as of October 16, 1996, as amended by an amendment dated January 30, 1998
("Sublicense") under which Service sublicenses Windmere to use the trademark
Farberware and other marks in connection with the sourcing and sale of certain
electric products. Windmere and Salton are parties to a Distributor Agreement
dated October 17, 1996 ("Distributor Agreement") pursuant to which Salton is
the exclusive distributor of Windmere for some of the products which Windmere
is authorized to source and sell under the sublicense and Salton agrees to buy
products for sale under the Farberware marks from Windmere. Farberware, Inc.,
the licensor to Service, and Windmere are parties to an agreement dated October
16, 1996, under which Windmere has the right to replace Service as a direct
licensee of Farberware, Inc., if Farberware terminates its license to Service.
Capitalized terms used in this Section 2 not defined in this Section 2 are
defined in the Sublicense.
2.01 If Salton exercises the Salton Option, Salton shall use its best
reasonable efforts to effect a transfer (the "Transfer") of Windmere's rights
and obligations under the Sublicense to Salton (or a third party designated by
Salton) on or before the closing of the exercise of the Salton Option
("Closing").
2.02 If Salton exercises the Salton Option, then prior to the Closing and,
also, after the Closing, if Salton is unable to effect the Transfer prior to
the Closing, Salton shall continue to perform at the expense of Salton all of
the obligations of Windmere under the Sublicense and Salton shall have all of
the profit or loss resulting from Salton's performance of Windmere's
obligations under the Sublicense. Salton shall defend, indemnify and hold
harmless Windmere from any default under the Sublicense by Salton in the
performance by Salton of the obligations of Windmere under the Sublicense.
Windmere shall cooperate with Salton and execute such documents as Salton may
reasonably require from time to time in order to perform Windmere's obligations
as sublicensee under the Sublicense, and not interfere with Salton's
performance for Windmere of Windmere's obligations under the Sublicense.
-2-
<PAGE> 26
2.03 If Salton is unable to effect the Transfer prior to the Closing,
thereafter, until the Transfer can be effected or Windmere exercises its rights
under subsection 2.04 below, Salton shall pay Windmere an amount equal to one
percent (1%) of the net world wide sales on which royalties are owing from
Windmere to Service (or to Farberware, if the License from Farberware to
Service is terminated and Windmere becomes a direct licensee of Farberware).
This amount shall be paid, by wire transfer to Windmere's bank account, not
later than the forty-fifth (45) day after the end of each calendar quarter on
the transactions occurring within said quarter.
2.04 Windmere shall have the right to terminate the Distributor Agreement,
in its sole discretion, at any time after March 31, 2000, if Salton has not
previously effected the Transfer. Upon termination of the Distributor
Agreement, the obligation of Salton to continue to make payments to Windmere of
one percent (1%) of the Net World Wide Sales on which royalties are owing to
Service (or Farberware, as the case may be) shall cease. As used herein, "Net
World Wide Sales" shall mean all sales by Salton of products under the
trademark "Farberware" less the sum of: (i) all accepted returns; and (ii)
prepaid freight. The termination by Windmere of the Distributor Agreement shall
not relieve Salton of its accrued obligations to Windmere under this Agreement
up to the date of termination as set forth herein.
2.05 During the period until the Distributor Agreement is canceled in
accordance with this Agreement, Salton and Windmere agree that the Distributor
Agreement is amended to conform to the practice of Salton and Windmere since
the creation of the Distributor Agreement that Salton is not required to
purchase all of the Products sold under the Farberware marks from Windmere.
3. Applicable Law. This Agreement shall be interpreted under the laws of
Delaware, without regard to its conflict of laws provisions.
SALTON/MAXIM HOUSEWARES, INC. WINDMERE-DURABLE HOLDINGS, INC.
a Delaware corporation a Florida corporation
By: By:
------------------------------- -----------------------------
Its: Its:
------------------------------- -----------------------------
-3-
<PAGE> 27
Exhibit C to the
Stock Agreement
Letter Agreement dated April 30, 1997
between
Windmere Corporation ("Windmere")
and
Salton/Maxim Housewares, Inc. ("Salton")
as amended and restated [Closing of Salton Option], 1998
WHEREAS, Windmere, with its main office in Miami Lakes, Florida, and Salton,
with its main office in Mt. Prospect, Illinois, have worked together to obtain
the benefits of significant sales of products under the White-Westinghouse
brand to K-Mart Corporation ("K-Mart"); and
WHEREAS, the distribution profits on the sales to K-Mart of the
White-Westinghouse brand of appliances will all be received and recorded on the
books of Salton (the "White-Westinghouse Profits"); and
WHEREAS, the parties wish to provide explicitly for the calculation of the
White-Westinghouse Profits, recognizing that Salton is presently warehousing
White-Westinghouse product in the United States to facilitate their sale;
NOW, THEREFORE, in consideration of Windmere's marketing cooperation efforts,
this Letter Agreement documents the obligation of Salton to pay a fee as
described herein to Windmere as compensation for its efforts on Salton's behalf
in obtaining said White-Westinghouse Profits.
1.01 Fees.
(a) Salton shall pay Windmere a fee equal to fifty percent (50%) of said
White-Westinghouse Profits (as such term is hereinafter defined) earned by
Salton on the sale of any White-Westinghouse Product to K-Mart. The fee shall
be paid, by wire transfer to Windmere's bank account, not later than the
forty-fifth (45th) day after the end of each calendar quarter on the
transactions occurring within said quarter.
(b) Not later than the 25th day of each calendar month, Salton shall
provide to Windmere a report of Sales (as such term is defined below) during
the prior month, together with a calculation of said White-Westinghouse
Profits, all in such detail as may reasonably be requested by Windmere (each a
"Salton Report").
(c) White-Westinghouse Profits earned by Salton on the sale of
White-Westinghouse Products shall be determined by subtracting from Sales (x)
the Cost of Sales on First Party Sales (as such terms are defined below) of the
related products and (y) the Direct Expenses on First Party Sales and Third
Party Sales (as such terms are defined below) relating thereto.
<PAGE> 28
(i) For the purposes of this Agreement, "Sales" shall mean the amount
invoiced by Salton to K-Mart for the White-Westinghouse Products net of
accepted returns and excluding all freight charges ("First Party Sales");
provided, however, in those cases in which K-Mart elects, pursuant to Section
7.1.2 of the K-Mart Agreement, to purchase K-Mart Products from "Third Party
Manufacturers" on behalf of Salton, Sales shall be deemed to be equal to the
difference between the Salton Payment and the TPM Payment (as each of such
terms are defined in Section 7.1.3 of the K-Mart Agreement).
(ii) For the purposes of this Agreement, Cost of Sales shall mean the FOB
point of shipment invoice amount from the applicable vendor, plus, to the
extent applicable, freight charges and duties.
(iii) For the purposes of this Agreement: (A) Direct Expenses on First
Party Sales shall be the total of: (x) three and one half percent (3.5%) of
Sales plus (y) the sum of: (1) royalties owing on such Sales plus the minimum
royalty owing, if any, regardless of Sales and (2) Detroit office selling
expenses, provided, however, that if 75% or more of Salton's First Party Sales
are FOB Hong Kong, said three-and-one half percent (3.5%) figure shall be
reduced to two percent (2%); and (B) Direct Expenses on Third Party Sales shall
consist only of royalties owing on such sales.
1.02 Right of Audit. Windmere shall have the right, upon reasonable notice and
at reasonable times, within six (6) months following its receipt of any Salton
Report to have a review of the books and records of Salton with respect to the
payments to be made for the period covered by such Salton Report, to confirm
the accuracy of the Salton Report, provided, however, that such right of review
shall not be exercisable more than two times per calendar year and provided
further that if such review reveals an underpayment of more than 3.0% of the
amount to which Windmere is entitled hereunder, then Windmere may have such
review as often as it may reasonably deem necessary. Costs and expenses of such
examinations shall be paid solely by Windmere; provided, however, that if an
examination reveals an underpayment to Windmere of more than 3.0% of the amount
to which Windmere is entitled hereunder, then the reasonable costs and expenses
of such examination shall be paid by Salton upon receiving an invoice therefor,
with supporting documentation attached. It is specifically agreed that
Windmere may conduct such an examination only through a firm of nationally
recognized independent accountants not regularly retained by Salton or Windmere
or their respective affiliates and mutually agreed on by Windmere and Salton.
If Salton and Windmere cannot agree upon a firm of nationally recognized
independent accountants, the firm shall be Price Waterhouse & Co., or any
successor to Price Waterhouse & Co. If Price Waterhouse & Co. shall be acquired
by, merge into or otherwise cease to be independent of a firm that is regularly
retained by Salton or Windmere, then, unless Windmere and Salton mutually agree
upon a successor independent firm, at the written request of either Windmere or
Salton made to the other, another national recognized firm that is not
regularly retained by Salton or Windmere shall be selected by the head of the
Miami, Florida office of the American Arbitration Association. Such independent
accountants shall: (i) confirm the First Party Sales and Third Party Sales and
the Cost of Sales and (ii)
-2-
<PAGE> 29
shall have access to the books and records of Salton, but shall be obligated to
keep confidential from Windmere and its affiliates and all third parties, the
names of Salton's manufacturing sources, the terms of purchase, unit prices and
all other details available to such independent accountants concerning the Cost
of Sales. The determination of such independent accounting firm shall be
binding on both Windmere and Salton.
1.03 Non-Compete. Neither Windmere nor any Affiliate of Windmere, including
but not limited to Durable Electrical Metal Factory, Ltd., and any partnership
or joint venture to which Windmere is a party shall compete with Salton in
selling White-Westinghouse Trademarked Products to K-Mart covered by the
Salton/K-Mart Agreement. Any such competition shall be a breach of the
Salton/Windmere K-Mart Letter Agreement which shall entitle Salton to terminate
the Salton/Windmere K-Mart Letter Agreement by notice to Windmere.
1.04 Term. The provisions of this Agreement with regard to sales to K-Mart
shall not be cancelable during the term of that existing contract between
Salton and K-Mart, including any extensions or modifications thereof. The term
of the provisions of this Agreement with regard to sales to K-Mart shall
coincide with the contract term as specified in said contract between Salton
and K-Mart.
1.05 Jurisdiction. This Agreement shall be interpreted under the laws of the
State of Delaware, without regard to its conflict of laws provisions.
Windmere Corporation Salton/Maxim Housewares, Inc.
By: By:
------------------------------ ----------------------------
-3-
<PAGE> 30
Exhibit D to the Stock Agreement
MUTUAL RELEASES
THESE MUTUAL RELEASES are hereby entered into by and among the following
Parties of the First Part: ( l) Windmere-Durable Holdings, Inc. ("Windmere") a
Florida corporation, (2) Mr. David Friedson, (3) Mr. Harry Schulman, (4) Mr.
Laurence Chud and (5) Mr. James Connolly; and the following Parties of the
Second Part: (1) Salton-Maxim Housewares, Inc. ("Salton"), a Delaware
corporation; (2) Messrs. Leonhard Dreimann, David C. Sabin and William B. Rue
("Management"); (3) Mr. Frank Devine; (4) Mr. Bert Doornmalen; (5) Dominator
Investors Group, a Hong Kong corporation; and (6) Duquesne Financial
Corporation, an Illinois corporation.
WHEREAS, on the date hereof, Salton and Windmere have entered into a stock
agreement which provides certain options for the purchase of outstanding shares
of Salton common stock ("Stock Agreement"); and
WHEREAS, in connection with the consummation of the transactions
contemplated by the Stock Agreement, the parties hereto desire to resolve all
disputes and contentions between the Parties of the First Part, on the one
hand, and the Parties of the Second Part, on the other hand, concerning the
business and operations of Windmere and Salton, the interpretation and
implementation of agreements and understandings between them, and the conduct
of Windmere and Salton affiliates, directors, offices and agents, including the
Windmere designees serving on the Board of Directors of Salton (the "Windmere
Designees") and the non-Windmere designees serving on the Board of Directors of
Salton (the "Salton Designees");
WHEREAS, each of the parties denies all liability as to each of the
matters and contentions advanced in the disputes, and asserts that its/his/her
conduct, and the conduct of its/his/her affiliates, directors, officers and
agents was in all respects and at all times proper, in good faith and in
accordance with all applicable legal standards, and states that these Mutual
Releases are being entered into to resolve matters in dispute;
NOW, THEREFORE, in consideration of the promises, mutual covenants and
agreements herein contained, and other good and valuable consideration, receipt
of which is hereby acknowledged by each of the parties hereto, it is understood
and agreed as follows:
1. Subject to the condition set forth in Paragraph 3 hereof, each of the
Parties of the First Part, on behalf of itself and its predecessors,
successors, and assigns, hereby
<PAGE> 31
and forever releases discharges each of the Parties of the Second Part,
and its/his/her past, present and future directors (including the Salton
Designees, but excluding the Windmere Designees), officers, employees,
stockholders, owners, agents, representatives, attorneys, heirs,
executors, administrators, transferees, and assigns (collectively for
purposes of this paragraph, "the Salton Releases"), jointly and severally,
from any and all sums of money, 1iabilities, accounts, claims, rights,
demands, contracts, actions, debts, controversies, agreements, damages,
costs, expenses, attorney's fees, causes of action and suits in law or
equity, known or unknown, suspected or unsuspected, fixed or contingent,
including any rights of subrogation, contribution or indemnification, that
may exist in law or equity or by contract, that it or any of them had,
now has or hereafter shall or may have, based upon, arising from or in any
way connected with or related to (i) the business or operations of
Windmere or Salton, (ii) the interpretation or implementation of
agreements or understandings between Windmere and Salton, and (iii) the
conduct, acts, omissions or failures to act, of whatever kind or
character, of any of the Salton Releases; provided, however, that nothing
herein shall be deemed to release or discharge the Salton Releases from
(a) any amounts or other obligations owed by them for commercial
transactions in the ordinary course of business, or (b) their obligations
under these Mutual Releases, the aforesaid Stock Agreement or any other
document or instrument made or entered into pursuant to the Stock
Agreement.
2. Subject to the condition set forth in Paragraph 3 hereof, each of the
Parties of the Second Part, on behalf of itself/himself/herself, and
its/his/her predecessors, successors, assigns, heirs, executors and
administrators, hereby and forever releases and discharges Windmere and
its past, present and future directors, officers, employees, stockholders,
owners, agents ( including the Salton Designees), representatives,
attorneys, transferees, and assigns (collectively for purposes of this
paragraph, "the Windmere Releases"), jointly and severally, from any and
all sums of money, liabilities, accounts, claims, rights, demands,
contracts, actions, debts, controversies, agreements, damages, costs,
expenses, attorney's fees, causes of action and suits in law or equity,
known or unknown, suspected or unsuspected, fixed or contingent, including
any rights of subrogation, contribution or indemnification, that may exist
in law or equity or by contract, that it/he/she or any of them had, now
has or hereafter shall or may have, based upon, arising from or in any way
connected with or related to (i) the business or operations of Windmere or
Salton, (ii) the interpretation or implementation of agreements or
understandings between Windmere and Salton, and (iii) the conduct, acts,
omissions or failures to act, of whatever kind or character, of any of
<PAGE> 32
the Windmere Releases; provided, however, that nothing herein shall be
deemed to release or discharge the Windmere Releases from (a) any amounts
or other obligations owed by them for commercial transactions in the
ordinary course of business, or (b) their obligations under these Mutual
Releases, the aforesaid Stock Agreement, or any other document or
instrument made or entered into pursuant to the Stock Agreement.
3. The mutual releases set forth in Paragraphs 1 and 2 hereof.
a. shall not become effective unless and until the transactions
contemplated by either Salton Option or the Windmere Option of
the aforesaid Stock Agreement has been consummated; and
b. are intended to speak as of the date these Mutual Releases
become effective.
4. Each party warrants that:
a. the person executing these Mutual Releases on its/his/her
behalf's authorized to so execute them;
b. it/he/she has the power to settle and release fully and
completely all actions, causes of action, debts, dues,
liabilities, controversies, claims and demands as set forth
herein, and is entering into these Mutual Releases voluntarily.
c. it/he/she has been represented by legal counsel in connection
with the execution of these Mutual Releases, and that it/he/she
has made such investigation of the facts pertaining to the
matters being released as it/he/she deems necessary.
5. These Mutual Releases may be executed in counterparts, and when each party
has signed and delivered one such counterpart, each counterpart shall be
deemed an original, and when taken together with the other signed
counterparts, shall constitute one agreement and shall be binding upon and
effective as to all parties.
6. These Mutual Releases may be amended only by a written instrument duly
executed by the parties or their respective successors or assigns.
7. Neither these Mutual Releases, nor any of their terms and provisions, nor
any of the negotiations connected with them, (a) is, or is intended to be, an
admission by any party of any liability, fault or wrongdoing of any party, or
(b) shall be offered or received as evidence in any action or proceeding of
any kind other than such proceedings as may
<PAGE> 33
be necessary to consummate or enforce these Mutual Releases.
8. These Mutual Releases shall be construed under, and interpreted in
accordance with, the law of the State of Illinois without regard to its
conflict of laws provisions.
Dated:__________________________,1998
PARTIES OF THE FIRST PART
WINDMERE-DURABLE HOLDINGS, INC.
By:_____________________________
Its:____________________________
________________________________
David Friedson
________________________________
Harry Schulman
________________________________
Laurence Chud
________________________________
James Connolly
PARTIES OF THE SECOND PART
SALTON-MAXIM HOUSEWARES, INC.
By:_____________________________
Its:____________________________
________________________________
Leonhard Dreimann
<PAGE> 34
________________________________
David C. Sabin
________________________________
William B. Rue
________________________________
Frank Devine
________________________________
Bert Doornmalen
DOMINATORS INVESTORS GROUP
By:_____________________________
Its:____________________________
DUQUESNE FINANCIAL CORP.
By:_____________________________
Its:____________________________
<PAGE> 35
Exhibit E
Credit Extension Agreement dated as of [Closing of Salton Option], 1998
between
Windmere-Durable Holdings, Inc.("Windmere")
and
Salton/Maxim Housewares, Inc. ("Salton")
Recitals
A. This Agreement shall become effective on the date when Salton purchases
all of the stock of Salton owned by Windmere (the "Purchase") and Windmere has
received in part payment a note from Salton in the original principal amount of
fifteen million dollars ($15,000,000) (the "Note");
B. Under the terms of the Note, Salton is to receive a credit of five
percent (5%) of the amount of all purchases made by Salton or its Affiliates
(as that term is defined in the Note) of products from Windmere or its
Affiliates against payments owing on the Note, as more fully set forth in the
Note.
C. Windmere has agreed to extend payment terms to Salton covering the sale
by Windmere and its Affiliates of products to Salton.
D. Capitalized terms not defined in this Agreement are defined in the
Stock Agreement dated May , 1998 among Windmere, Salton and certain other
parties.
THEREFORE, in consideration of closing of the Purchase and other good and
valuable consideration to each party, receipt of which is hereby acknowledged,
Windmere and Salton agree as hereinafter set forth (the "Agreement").
1. Payment Terms. In the case of all purchases of products made by Salton
and its Affiliates from Windmere and its Affiliates, payment shall not be due
for a period of one hundred twenty days (120) commencing on and after the date
the products are delivered FOB Hong Kong or another port in mainland China,
provided that such payment terms shall not cover an aggregate amount of
purchases that: (i) at any time exceeds twelve million dollars ($12,000,000)
U.S. and (ii) in any period of twelve (12) consecutive months exceeds forty
eight million dollars ($48,000,000) U.S. and further provided that, if payment
in full is not made within said time limit, interest on the unpaid balance
shall be paid at the rate of four percent (4%) above the prime rate from time
to time charged by NationsBank, on said unpaid balance, from the 121st day
until payment is made. Nothing contained herein shall obligate Salton or any
Salton Affiliate to buy any products from Windmere or any Windmere Affiliate,
nor obligate Windmere or any Windmere Affiliate to sell any products to Salton
or any Salton Affiliate.
2. Expiration. This agreement shall expire on the later to occur of: (i)
payment in full of the Note and (ii) the termination of the Purchase,
Distribution and Marketing Agreement dated January 27, 1997 between Salton and
KMart Corporation.
<PAGE> 36
3. Incorporation of Recitals. The recitals to this Agreement are
incorporated into this Agreement.
4. Arbitration. Salton and Windmere agree that any dispute which arises
under or in connection with (a) the purchase by or on behalf of Salton or any
of its affiliates of products from Windmere or any of its affiliates (including
Durable Electrical Metal Factory, Ltd.), (b) the terms of this Agreement, (c)
the terms of Exhibit B to the Stock Agreement, (d) the terms of Exhibit C to
the Stock Agreement, or (e) the failure to pay interest when due on the Note in
the form of Exhibit A to the Stock Agreement, shall be submitted to the
American Arbitration Association under and in accordance with its then
prevailing commercial arbitration rules, if the claims and counterclaims in
such dispute do not exceed an aggregate of $5,000,000. Nothing herein shall
require the parties to arbitrate any dispute arising under the Stock Agreement,
the Mutual Releases in the form of Exhibit D to the Stock Agreement, any
provision of said Note (other than the payment of interest due thereon), or any
dispute (regardless of how it arises) where the claims and counterclaims in the
aggregate exceed $5,000,000.
Following a demand for arbitration, Salton and Windmere shall each name
one arbitrator within 10 days. In the event that either party fails to
designate an arbitrator within that time period, the other party may designate
the second arbitrator as well. The third arbitrator shall be chosen by the
first two within ten days after they both have been appointed, or, failing
agreement on the third arbitrator, he shall be chosen by the head of the
Chicago, Illinois office of the American Arbitration Association.
The arbitrators shall apply, to the greatest extent practicable, the
Expedited Procedures provided for in the commercial arbitration rules, even
though the amount in dispute may exceed $50,000. Any such arbitration shall
take place in Chicago, Illinois. The written decision of the arbitrators shall
be provided to the parties and shall be binding on them, and enforceable in any
court of law. The arbitrators shall have the authority to award consequential
damages. Each party shall be responsible for its own attorneys fees, but shall
bear equally the expenses of the arbitration.
Salton/Maxim Housewares, Inc., Windmere Durable Holdings,Inc.
a Delaware corporation a Florida corporation
By By
------------------------------ ------------------------------
Its Its
------------------------------ ------------------------------
<PAGE> 1
SALTON/MAXIM HOUSEWARES AND WINDMERE-DURABLE HOLDINGS ENTER INTO AGREEMENT
MOUNT PROSPECT, Ill. -- May 7, 1998--Salton/Maxim Housewares, Inc. (Nasdaq:
SALT - news) and Windmere-Durable Holdings, Inc. (NYSE: WND - news), the 50%
stockholder of Salton, today announced that they have entered into an agreement
which grants Salton the right to purchase Windmere's 6,535,072 shares of Salton
for $12 per share in cash plus a six and one-half year, $15 million
subordinated promissory note bearing interest at 4% per annum, payable to
Windmere. The note is offset by 5% of the total purchase price paid by Salton
for product purchases from Windmere and its affiliates during the term of the
note. The aggregate value of the transaction would be equivalent to $14.27 per
share of Salton common stock. If Salton fails to exercise their right on or
prior to June 30, 1998 or to close the purchase on or prior to October 30,
1998, then Windmere will have the right to acquire all of the shares of Salton
which it does not own in a tender offer and/or merger for $14.27 per share in
cash or in registered shares of Windmere common stock.
The agreement further provides that in the event Salton acquires Windmere's 50%
interest in Salton: (i) Windmere will simultaneously pay in full its $10.8
million promissory note to Salton; (ii) Salton will repurchase for
approximately $3.3 million an option owned by Windmere to purchase up to
485,500 shares of Salton stock; and (iii) various contractual and other
arrangements, including those relating to Kmart, will continue subject to
certain modifications.
The agreement between Salton and Windmere and the rights and obligations of the
parties thereunder may be terminated on or prior to May 18, 1998 by: (i) Salton
if a special committee of the Board of Directors of Salton consisting of
Messrs. Frank Devine and Bert Doornmalen does not determine that the
transactions contemplated by the agreement are in the best interests of Salton
and its stockholders (other than Windmere); or (ii) Windmere if the Board of
Directors of Windmere does not determine that the transactions contemplated by
the agreement are in the best interests of Windmere and its stockholders.
The consummation of the transactions contemplated by the agreement is subject
to a number of further conditions, including the termination of all applicable
waiting periods under the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, and, if required by the form of transaction, stockholder approval.
There can be no assurance that Salton will purchase Windmere's 50% interest or,
if Salton fails to exercise or close its right to purchase such interest, that
Windmere will acquire any of the shares of
Thursday, May 07, 1998 2:05 PM
