REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this 'Agreement') is entered into
as of July 11, 1996 by and between Windmere-Durable Holdings, Inc., a Florida
corporation (the 'Investor') and Salton/Maxim Housewares, Inc., a Delaware
corporation (the 'Company').
A. The Investor and the Company have entered into that certain
Stock Purchase Agreement dated as of February 27, 1996 (the 'Stock Purchase
Agreement'), pursuant to which the Investor is acquiring certain shares of the
Company's Common Stock.
B. The Investor and the Company are also parties to a Stockholder
Agreement dated as of February 27, 1996 (the 'Stockholder Agreement'), pursuant
to which the Investor and the Company establish certain terms and conditions
concerning the Investor's investment in the Company and the Company's corporate
governance.
C. The execution and delivery of this Agreement is a material
inducement and consideration to the Investor to enter into the Stock Purchase
Agreement and a condition to the transactions contemplated thereby.
NOW, THEREFORE, in consideration of the foregoing premises and the
representations, warranties, and covenants set forth in this Agreement, the
Investor and the Company hereby agree as follows:
ARTICLE 1
DEFINITIONS
Capitalized terms used in this Agreement without definition shall have
the respective meanings accorded to them in the Stockholder Agreement.
Capitalized terms used in this Agreement and not otherwise defined herein or in
the Stockholder Agreement shall have the respective meanings set forth below.
'ADVERSE DISCLOSURE' means public disclosure of material non-public
information relating to a Significant Transaction, which disclosure, in the
good faith judgment of a majority of the Company Directors, (i) would be
required to be made in any registration statement filed with the Commission by
the Company so that such registration statement would not be materially
misleading; and (ii) would have an adverse effect on the Company's ability to
complete such Significant Transaction, or the terms upon which such Significant
Transaction can be completed.
'COMMISSION' means the Securities and Exchange Commission.
'DEMAND REGISTRATION' has the meaning set forth in Section 2.1.
'REGISTER,' 'REGISTERED' and 'REGISTRATION' refer to a registration
effected by preparing and filing of an appropriate registration statement with
the Commission in compliance with the Securities Act.
'REGISTRABLE SHARES' means (i) the shares of Common Stock acquired by
the Investor pursuant to the Stock Purchase Agreement and (ii) other shares of
Common Stock acquired by the Investor from time to time not in violation of the
Stock Purchase Agreement or the Stockholder Agreement. All Registrable Shares
shall cease to be Registrable Shares when transferred to any person or entity
other than permitted transferees in accordance with the terms of the
Stockholder Agreement, or (a) when sold in a registered public offering or in
accordance with Rule 144 promulgated by the Commission under the Securities
Act, or (b) when permitted to be sold in accordance with Rule 144(k).
'REGISTRATION EXPENSES' means all expenses, except Selling Expenses,
incurred by the Company in complying with Articles 2 and 3, including, without
limitation, all registration, qualification and filing fees, printing expenses,
escrow fees, fees and disbursements of counsel for the Company, blue sky fees
and expenses, the expense of any special audits incident to or required by any
such registration, and expenses of all marketing and promotional efforts
reasonably requested by the managing underwriter.
'SELLING EXPENSES' means all underwriting discounts, selling
commissions, and stock transfer taxes applicable to the sale of the Registrable
Shares.
'SIGNIFICANT TRANSACTION' means a pending or imminent material
acquisition, disposition, financing, corporate reorganization or other business
combination or divestiture transaction.
ARTICLE 2
DEMAND REGISTRATIONS
2.1. REQUEST FOR REGISTRATION. At any time and from time to time
after the earlier of (i) two years and 270 days from the date hereof and (ii) a
Lapse Event, the Investor may request that the Company effect the registration
of Registrable Shares (a 'Demand Registration'). Upon receipt of such request,
the Company shall use its reasonable efforts to effect such Demand
Registration, subject to the limitations set forth in Section 2.2. The Company
may include in any Demand Registration any
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other shares of Common Stock (including issued and outstanding shares of Common
Stock as to which the holders thereof have contracted with the Company for
'piggyback' registration rights) so long as the inclusion in such registration
of such shares will not, in the reasonable judgment of the managing
underwriter(s), if any, interfere with the successful marketing in accordance
with the intended method of sale or other disposition of all the Registrable
Shares sought to be registered. If it is determined as provided above that
there will be such interference, the other shares of Common Stock sought to be
included shall be excluded to the extent deemed appropriate by the managing
underwriter(s).
2.2. LIMITATIONS ON DEMAND REGISTRATIONS. Subject to Section 2.4,
the Company's obligation to effect a Demand Registration requested by the
Investor pursuant to Section 2.1 shall be subject to the following limitations:
2.2.1. The Company shall not be required to effect any Demand
Registration of fewer than that number of Registrable Shares which has an
aggregate market value of at least $2,500,000, based on the average closing
sale prices of the Company's Common Stock for the twenty days preceding the
date prior to the date of the Investor's request for a Demand Registration.
2.2.2. The Company shall not be required to effect any Demand
Registration within 9 months of the effectiveness of a Registration by the
Investor of Registrable Shares registered pursuant to the previous Demand
Registration effected by Company.
2.2.3. The Company may defer its obligations to effect a
Demand Registration if filing a registration statement with the Commission at
the time a Demand Registration is requested would require Adverse Disclosure,
provided that such deferral may not extend beyond the earlier to occur of (i)
180 days after the receipt by the Company of the Investor's request for such
Demand Registration, or (ii) the date that filing of a registration statement
with the Commission would not require Adverse Disclosure therein.
2.2.4. The Company shall not be required to effect more than
five (5) Demand Registrations and no registration statement relating to a
Demand Registration shall be declared effective prior to the earlier of (i) the
third anniversary of the date hereof and (ii) a Lapse Event.
2.3. HOLDBACK. Subject to Section 2.4, if requested (pursuant to a
timely written notice) by the managing underwriter(s) of an underwritten
offering or the initial purchaser(s) in any offering being resold pursuant to
Rule 144A under the Securities Act of Equity Securities by the Company, the
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Investor shall agree on the same terms applicable to officers and directors of
the Company not to effect any public sale or distribution of any of the
Registrable Shares for a period of up to 180 days following and 15 days prior
to the date of the final prospectus contained in the registration statement
filed in connection with such offering.
2.4. MINIMUM SALE AVAILABILITY. The limitations on the Company's
obligations to effect Demand Registrations set forth in Section 2.2.3 and the
Investor's obligation under Section 2.3 shall not be applicable to the extent
that such limitations would result in the Investor not having a period of at
least 180 consecutive days within any 18-month period during which the Investor
may sell Registrable Shares under a Registration effected pursuant to the
provisions hereof.
2.5. SELECTION OF UNDERWRITER. Any Demand Registration and related
offering shall be managed by the Investor as follows: subject to the reasonable
approval of the Company, the Investor shall have the power to select the
managing underwriter(s), if any, for such offering, and shall in consultation
with the managing underwriter(s), if any, have the power to determine the
number of Registrable Shares to be included in such registration and offering
(subject to applicable limitations set forth herein), the offering price per
Registrable Share, the underwriting discounts and commissions per Registrable
Share and the timing of the registration and related offering (subject to
applicable limitations set forth herein). The Company shall enter into an
underwriting agreement in customary form with the underwriter(s) selected by
the Investor and shall enter into such other customary agreements and take all
such other customary actions as the Investor or its underwriter(s) may
reasonably request to facilitate the disposition of the Registrable Shares.
ARTICLE 3
PIGGYBACK REGISTRATIONS
3.1. REQUEST FOR REGISTRATION. At any time after the earlier of
(i) the third anniversary of the date hereof and (ii) a Lapse Event, if the
Company proposes to register any Common Stock for sale solely for cash, either
for its own account or for the account of a stockholder or stockholders (a
'Company Registration'), then the Company shall give the Investor written
notice of its intention to do so and of the intended method of sale (the
'Registration Notice') not fewer than 15 days prior to the anticipated filing
date of the registration statement effecting such Company Registration. The
Investor may request inclusion of any Registrable Shares in such Company
Registration by delivering to the Company, within 10 days after receipt of the
Registration Notice, a written notice (the 'Piggyback Notice')
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stating the number of Registrable Shares proposed to be included and that such
shares are to be included in any underwriting only on the same terms and
conditions as the shares of Common Stock otherwise being sold through
underwriters under such Registration. The Company shall use its reasonable
efforts to cause all Registrable Shares specified in the Piggyback Notice to be
included in the Company Registration and any related offering, all to the
extent requisite to permit the sale by the Investor of such Registrable Shares
in accordance with the method of sale applicable to the other shares of Common
Stock included in the Company Registration.
3.2. LIMITATIONS ON PIGGYBACK REGISTRATIONS. The Company's
obligation to include Registrable Shares in the Company Registration pursuant
to Section 3.1 shall be subject to the following limitations:
3.2.1. The Company shall not be obligated to include any
Registrable Shares in a registration statement (i) filed on Form S-4 or Form
S-8 or such other similar successor forms then in effect under the Securities
Act, (ii) pursuant to which the Company is offering to exchange its own
securities, or (iii) relating to dividend reinvestment plans.
3.2.2. If the managing underwriter(s), if any, of an offering
related to the Company Registration determines in its reasonable judgment that
marketing factors require a limitation of the number of shares of Common Stock
that can be included in such offering, the managing underwriter(s) may exclude
the appropriate number of shares of Common Stock held by the stockholders of
the Company, including the Investor, from such registration. If the managing
underwriter(s) determines to exclude from such offering any Registrable Shares
that the Investor desires to include or any shares of Common Stock that other
Company stockholders with applicable registration rights desire to include, the
Investor and such other Company stockholders (except for such person or
persons, if any, upon whose demand such Registration is being made) shall share
pro rata in the portion of such offering available to them (the 'Available
Portion'), with the Investor and each such other Company stockholder entitled
to include in such Company Registration and related offering a number of shares
of Common Stock equal to the product of (i) the Available Portion and (ii) a
fraction, the numerator of which is the total number of Registrable Shares
which the Investor desires to include in such Company Registration (in the case
of the Investor) or the total number of shares of Common Stock which such other
Company stockholder desires to include in such Company Registration (in the
case of each such other Company stockholder) and the denominator of which is
(x) the total of the number of Registrable Shares which the Investor desires to
include in such
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Company Registration plus (y) the total number of shares of Common Stock that
such other Company stockholders desire to include in such Company Registration.
3.3. SELECTION OF UNDERWRITER. Any Company Registration and related
offering shall be managed by the Company; the Company shall have the power to
select the managing underwriter(s) for such offering, and shall in consultation
with the managing underwriter(s) have the power to determine the offering
price, the underwriting discounts and commissions, the terms of the
underwriting agreement and, the timing of the registration and related
offering. To the extent that the Investor participates in a Company
Registration and related offering pursuant to Section 3.1, the Investor shall
enter into, and sell its Registrable Shares only pursuant to, the underwriting
arranged by the Company, and shall either commit to attend the closing of the
offering and take such other actions as may be reasonably necessary to effect
the Investor's participation in the offering and to provide any assurances
reasonably requested by the Company and the managing underwriter(s) in that
regard, or shall deliver to the Company in custody certificates representing
all Registrable Shares to be included in the registration and shall execute and
deliver to the Company a custody agreement and a power of attorney, each in
form and substance appropriate for the purpose of effecting the Investor's
participation in the Company Registration and related offering and otherwise
reasonably satisfactory to the Company. If the Investor disapproves of the
features of the Company Registration and related offering, the Investor may
withdraw therefrom (in whole or part) by written notice to the Company and the
managing underwriter(s) delivered no later than ten (10) days prior to the
effectiveness of the applicable registration statement and the Registrable
Shares of the Investor shall thereupon be withdrawn from such registration.
ARTICLE 4
REGISTRATION PROCEDURES AND EXPENSE.
4.1. REGISTRATION PROCEDURES. If and whenever the Company is
required pursuant to this Agreement to use its reasonable efforts to effect the
registration of any of the Registrable Shares, the Investor shall furnish in
writing such information regarding the Investor and its Affiliates, the
Registrable Shares being registered and offered, and the intended method of
distribution of such Registrable Shares as is reasonably requested by the
Company for inclusion in the registration statement relating to such offering
pursuant to the Securities Act and the rules of the Commission thereunder, and
the Company shall, as expeditiously as reasonably practicable:
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4.1.1. prepare and file with the Commission a registration
statement (including a prospectus therein) with respect to such securities and
use its reasonable efforts to cause such registration statement to become and
remain effective for such period as may be necessary to permit the successful
marketing of such securities, but not exceeding 120 days for an offering in
connection with a Demand Registration, or, with regard to an offering in
connection with a Company Registration, for the period associated with such
offering;
4.1.2. prepare and file with the Commission such amendments
and supplements to such registration statement and the prospectus used in
connection therewith as may be necessary to comply with the Securities Act and
the rules of the Commission thereunder; and to keep such registration statement
effective for that period of time specified in Section 4.1.1;
4.1.3. furnish to the Investor such number of prospectuses
and preliminary prospectuses in conformity with the requirements of the
Securities Act, and such other documents as the Investor may reasonably request
in order to facilitate the public sale or other disposition of the Registrable
Shares being sold:
4.1.4. upon written request by any underwriters of the
offering, and subject to applicable rules and guidelines, cause its certified
public accountants and attorneys, as applicable, to furnish to the Investor a
signed counterpart, addressed to the Investor and its underwriters, if any, of
(i) a letter from the independent certified public accountants of the Company
in the form customarily furnished to underwriters in firm commitment
underwritten offerings providing substantially that such accountants are
independent certified public accountants within the meaning of the Securities
Act and that in the opinion of such accountants, the financial statements and
other financial data of the Company included in the registration statement and
the prospectus, and any amendment or supplement thereto, comply as to form in
all material respects with the applicable accounting requirements of the
Securities Act, and additionally covering such other financial matters
(including information as of the date of such letter) with respect to the
registration in respect of which such letter is being given as the underwriters
may reasonably request; and (ii) an opinion of outside legal counsel to the
Company, dated the effective date of the registration statement, covering
substantially the same matters with respect to the registration statement and
the prospectus included therein as are customarily covered (at the time of such
registration) in the opinions of issuer's counsel delivered to the underwriters
in comparable underwritten public offerings;
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4.1.5. use its reasonable efforts to register or qualify the
Registrable Shares covered by such registration statement under such securities
or blue sky laws of such jurisdictions within the United States as the Investor
or its underwriters, if any, shall reasonably request; provided, however, that
the Company shall not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified, or to take any action that
would subject it to general service of process in any such jurisdiction where
it is not then so subject, or subject the Company to any tax in any such
jurisdiction where it is not then so subject;
4.1.6. cause all such Registrable Shares to be listed on each
securities exchange on which similar securities issued by the Company are then
listed;
4.1.7. provide a transfer agent and registrar for all such
Registrable Shares not later than the effective date of such registration
statement;
4.1.8. make available for inspection by the Investor and its
attorneys, and any participating underwriter, accountant or other agent
retained by the Investor and any participating underwriter in a Demand
Registration, all financial and other records, pertinent documents and
properties of the Company, and cause the Company's Affiliates (to the extent it
controls such Affiliates), employees, and agents to supply all information
reasonably requested by the Investor and any such underwriter, attorney,
accountant or agent in connection with the preparation of such registration
statement.
4.2. EXPENSES. The Company shall pay all Registration Expenses,
except as may be required to update any registration statement kept effective
for more than the period of time required by Section 4.1.1. The Investor shall
pay all Selling Expenses.
ARTICLE 5
INDEMNIFICATION
5.1. INDEMNIFICATION BY THE COMPANY. In the event of a registration
of any Registrable Shares pursuant to this Agreement, the Company shall
indemnify and hold harmless each seller of Registrable Shares, and each person,
if any, who controls such seller or underwriter within the meaning of the
Securities Act, and each officer, director, employee and advisor of each of the
foregoing (each an 'Investor Indemnitee'), against any expenses, losses,
claims, damages or liabilities, joint or several, to which such Investor
Indemnitee may become subject under the Securities Act, any state securities
law or otherwise,
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including any of the foregoing incurred in settlement of any litigation,
commenced or threatened, insofar as such expenses, losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in any registration statement under which such shares are registered under the
Securities Act, any preliminary prospectus or final prospectus contained
therein, any summary prospectus used in connection with any securities being
registered, or any amendment or supplement thereto; or (ii) any omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances
under which they were made, not misleading; or (iii) any violation by the
Company of the Securities Act or rules of the Commission thereunder or any blue
sky laws or any rules promulgated thereunder, and shall reimburse each such
Indemnitee for any legal or any other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company shall not be liable in
any such case to the extent that any such expense, loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
said preliminary prospectus or said prospectus or summary prospectus or said
amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by or on behalf of the Investor or any
underwriter specifically for use in the preparation thereof; and provided,
further, that if any expenses, losses, claims, damages or liabilities arise out
of or are based upon an untrue statement, alleged untrue statement, omission or
alleged omission contained in any preliminary prospectus which did not appear
in the final prospectus, the Company shall not have any liability with respect
thereto to any Investor Indemnitee if any Investor Indemnitee delivered a copy
of the preliminary prospectus to the person alleging such expenses, losses,
claims, damages or liabilities and failed to deliver a copy of the final
prospectus as amended or supplemented if it has been amended or supplemented,
to such person at or prior to the written confirmation of the sale to such
person.
5.2. INDEMNIFICATION BY THE INVESTOR. In the event of a registration
of any Registrable Shares pursuant to this Agreement, the Investor shall
indemnify and hold harmless the Company and each person, if any, who controls
the Company within the meaning of the Securities Act, each officer of the
Company who signs the registration statement, each director of the Company and
each underwriter and each person who controls any underwriter within the
meaning of the Securities Act (each a 'Company Indemnitee'), against any and
all such expenses, losses, claims, damages or liabilities referred to in
Section 5.1 if the
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statement, alleged statement, omission or alleged omission in respect of which
such expense, loss, claim, damage or liability is asserted was made in reliance
upon and in conformity with information furnished in writing to the Company by
or on behalf of a holder of Registrable Shares specifically for use in
connection with the preparation of such registration statement, preliminary
prospectus, prospectus, summary prospectus, amendment or supplement; provided,
however, that if any expenses, losses, claims, damages or liabilities arise out
of or are based upon an untrue statement, alleged untrue statement, omission or
alleged omission contained in any preliminary prospectus which did not appear
in the final prospectus, the Investor shall not have any such liability with
respect thereto to any Company Indemnitee if any Company Indemnitee delivered a
copy of the preliminary prospectus to the person alleging much expenses,
losses, claims, damages or liabilities and failed to deliver a copy of the
final prospectus, as amended or supplemented if it has been amended or
supplemented, to such person at or prior to the written confirmation of the
sale to such person.
5.3. CONTRIBUTION. If the indemnification provided for in Sections
5.1 or 5.2 above is unavailable to an indemnified party in respect of any
losses, claims, damages or liabilities referred to therein, then in lieu of
indemnifying such indemnified party thereunder, the indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities, in such proportion as is
appropriate to reflect the relative fault of the indemnifying party on the one
hand and of the indemnified parties on the other in connection with the
statements or omissions which resulted in such losses, claims, damages or
liabilities, as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and of the indemnified parties shall
be determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission to state a material
fact relates to information supplied by the indemnifying party, or by the
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The parties agree that it would not be just and equitable if
contribution pursuant to this Section 5.3 were determined by pro rata
allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities or actions in respect thereof
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or
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claim. No person guilty of fraudulent misrepresentations (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
5.4. INDEMNIFICATION PROCEDURES. Promptly after receipt by an
indemnified party of notice of the commencement of any action, such indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party
shall not relieve it from any liability which it may have to any indemnified
party otherwise than under this Article 5 or to the extent that it has not been
prejudiced as a proximate result of such failure. In case any such action
shall be brought against any indemnified party, and it shall notify the
indemnifying party of the commencement thereof, the indemnifying party shall be
entitled to participate therein and, to the extent that it shall wish, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party; provided, however, that if the defendants in any such action
include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the Company, the indemnified party or
parties shall have the right to select one separate counsel to assert such
legal defenses (in which case the indemnifying party shall not have the right
to direct the defense of such action on behalf of the indemnified party or
parties). Upon the permitted assumption by the indemnifying party of the
defense of such action, and approval by the indemnified party of counsel, the
indemnifying party shall not be liable to such indemnified party under this
Article 5 for any legal or other expenses subsequently incurred by such
indemnified party in connection with the defense thereof (other than reasonable
costs or investigation) unless (i) the indemnified party shall have employed
one separate counsel in connection with the assertion of legal defenses in
accordance with the proviso to the next preceding sentence, (ii) the
indemnifying party shall not have employed counsel reasonably satisfactory to
the indemnified party to represent the indemnified party within a reasonable
time, (iii) the indemnifying party and its counsel do not actively and
vigorously pursue the defense of such action or (iv) the indemnifying party has
authorized the employment of counsel for the indemnified party at the expense
of the indemnifying party.
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ARTICLE 6
MISCELLANEOUS
The provisions of Section 5.3 and Sections 6.2 through 6.13 of the
Stockholder Agreement are incorporated herein by reference and shall govern
this Agreement as though set forth in full herein and as though references in
those sections to 'this Agreement' were references to both this Agreement and
the Stockholder Agreement.
IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first above written.
SALTON/MAXIM HOUSEWARES, INC. WINDMERE-DURABLE HOLDINGS, INC.
a Delaware corporation a Florida corporation
By: By:
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Name: Name:
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Title: Title:
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Registration Rights Agreement - Windmere-Durable Holdings Inc. and Salton/Maxim Housewares Inc.
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