{"id":43110,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/agreement-and-plan-of-merger-salton-maxim-housewares-inc-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"agreement-and-plan-of-merger-salton-maxim-housewares-inc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/planning\/agreement-and-plan-of-merger-salton-maxim-housewares-inc-and.html","title":{"rendered":"Agreement and Plan of Merger &#8211; Salton\/Maxim Housewares Inc. and Toastmaster Inc."},"content":{"rendered":"<pre>\n\n                          AGREEMENT AND PLAN OF MERGER\n\n                           DATED AS OF AUGUST 26, 1998\n\n                                  BY AND AMONG\n\n                          SALTON\/MAXIM HOUSEWARES, INC.\n\n                           COLUMBIA ACQUISITION CORP.\n\n                                       AND\n\n                                TOASTMASTER INC.\n\n\n\n\n\n\n   2\n\n\n\n                                TABLE OF CONTENTS\n\n                                                                       PAGE\n\nARTICLE I.  THE MERGER.................................................  1\n         1.1.     The Merger...........................................  1\n         1.2.     Closing..............................................  2\n         1.3.     Effective Time.......................................  2\n         1.4.     Effects Of The Merger................................  2\n         1.5.     Articles Of Incorporation; By-laws; Purposes.........  2\n         1.6.     Directors............................................  2\n         1.7.     Officers.............................................  2\n\nARTICLE II.  EFFECT OF THE MERGER ON THE CAPITAL STOCK\n                           OF THE CONSTITUENT CORPORATIONS.............  3\n         2.1.     Conversion of Shares.................................  3\n         2.2.     Stock Options........................................  3\n         2.3.     Surrender of Certificates............................  4\n         2.4.     Dissenting Shares....................................  6\n         2.5.     Withholding Rights...................................  6\n         2.6.     Lost Certificates....................................  6\n         2.7.     Further Assurances...................................  7\n\nARTICLE III.  REPRESENTATIONS AND WARRANTIES OF THE COMPANY............  7\n         3.1.     Organization, Standing and Power.....................  7\n         3.2.     Capital Structure....................................  7\n         3.3.     Subsidiaries.........................................  9\n         3.4.     Authority and Absence of Conflict.................... 10\n         3.5.     SEC Documents........................................ 11\n         3.6.     Absence of Certain Events............................ 12\n         3.7.     Litigation........................................... 12\n         3.8.     Compliance with Applicable Law....................... 13\n         3.9.     Employee Plans....................................... 13\n         3.10.    Employment Relations................................. 16\n         3.11.    Contracts............................................ 17\n         3.12.    Environmental Laws and Regulations................... 18\n         3.13.    Property and Leases.................................. 19\n         3.14.    Intellectual Property................................ 20\n         3.15.    Insurance............................................ 21\n         3.16.    Takeover Statutes.................................... 21\n         3.17.    Taxes................................................ 21\n         3.18.    Customers............................................ 24\n         3.19.    Interests of Certain Persons......................... 24\n         3.20.    Information Supplied................................. 24\n\n                                     - i -\n\n\n   3\n\n\n                                TABLE OF CONTENTS\n                                   (CONTINUED)\n                                                                           PAGE\n\n         3.21.    Required Company Vote.................................... 24\n         3.22.    Opinion Of Financial Advisor............................. 24\n         3.23.    Board Recommendation..................................... 25\n         3.24.    Brokers.................................................. 25\n\nARTICLE IV.  REPRESENTATIONS AND WARRANTIES OF PARENT AND\n                           PURCHASER....................................... 25\n         4.1.     Organization and Qualification........................... 25\n         4.2.     Capital Stock of Parent and Purchaser.................... 26\n         4.3.     Authority and Absence of Conflict........................ 26\n         4.4.     Litigation............................................... 27\n         4.5.     Brokers.................................................. 27\n         4.6.     Proxy Statement.......................................... 27\n         4.7.     Solvency Opinion......................................... 27\n\nARTICLE V.  COVENANTS RELATING TO CONDUCT OF BUSINESS PRIOR\n                           TO MERGER....................................... 27\n         5.1.     Conduct Of Business Of The Company....................... 27\n\nARTICLE VI.  ADDITIONAL AGREEMENTS......................................... 29\n         6.1.     Preparation Of Proxy Statement; Shareholders Meeting..... 29\n         6.2.     Access To Information; Confidentiality................... 30\n         6.3.     Filings; Commercially Reasonable Best Efforts............ 31\n         6.4.     Public Announcements..................................... 31\n         6.5.     Notification of Certain Matters.......................... 32\n         6.6.     Indemnification And Insurance............................ 32\n         6.7.     Solicitation............................................. 33\n         6.8.     Supplemental Executive Retirement Plan Funding........... 35\n         6.9.     TMI Letter Agreement..................................... 35\n\nARTICLE VII.  CONDITIONS PRECEDENT......................................... 35\n         7.1.     Conditions To Each Party's Obligation To Effect The Merge 35\n         7.2.     Conditions To Obligations Of Parent...................... 36\n         7.3.     Conditions To Obligation Of The Company.................. 37\n\nARTICLE VIII.  TERMINATION, AMENDMENT AND WAIVER........................... 37\n         8.1.     Termination.............................................. 37\n         8.2.     Effect Of Termination.................................... 39\n\n                                     - ii -\n\n\n   4\n\n\n                                TABLE OF CONTENTS\n                                   (CONTINUED)\n                                                                            PAGE\n\nARTICLE IX.  GENERAL PROVISIONS.............................................. 39\n         9.1.   Nonsurvival Of Representations And Warranties.............. 39\n         9.2.   Payment Of Certain Fees and Expenses....................... 39\n         9.3.   Notices.................................................... 39\n         9.4.   Certain Definitions; Interpretation........................ 40\n         9.5.   Entire Agreement........................................... 41\n         9.6.   Counterparts............................................... 41\n         9.7.   Severability............................................... 41\n         9.8.   Captions................................................... 41\n         9.9.   Amendment.................................................. 41\n         9.10.  Waiver..................................................... 42\n         9.11.  No Third-Party Beneficiaries; Assignability................ 42\n         9.12.  Inclusion of Information in Schedules...................... 42\n         9.13.  Exclusive Jurisdiction and Consent to Service of Process... 42\n         9.14.  Waiver of Jury Trial....................................... 43\n         9.15.  Governing Law.............................................. 43\n\nSCHEDULES\n\n         Schedule 3.1    Organization, Standing and Power\n         Schedule 3.2    Capital Structure\n         Schedule 3.3    Subsidiaries\n         Schedule 3.4    Authority and Absence of Conflict\n         Schedule 3.6    Absence of Certain Events\n         Schedule 3.7    Litigation\n         Schedule 3.8    Compliance with Applicable Law\n         Schedule 3.9    Employee Plans\n         Schedule 3.10   Employment Relations\n         Schedule 3.11   Contracts\n         Schedule 3.12   Environmental Laws and Regulations\n         Schedule 3.13   Property and Leases\n         Schedule 3.14   Intellectual Property\n         Schedule 3.15   Insurance\n         Schedule 3.17   Taxes\n         Schedule 3.18   Customers\n         Schedule 3.19   Interests of Certain Persons\n         Schedule 4.4    Litigation\n         Schedule 6.6    Indemnification Agreements\n\n                                    - iii -\n\n\n   5\n\n\n\n\n         THIS AGREEMENT AND PLAN OF MERGER (the \"Agreement\"), dated as of August\n26, 1998, is by and among Salton\/Maxim Housewares, Inc. a Delaware corporation\n(\"Parent\"), Columbia Acquisition Corp., a Missouri corporation and a wholly\nowned subsidiary of Parent (\"Purchaser\"), and Toastmaster Inc., a Missouri\ncorporation (the \"Company\").\n\n         WHEREAS, the respective Boards of Directors of the Company, Parent and\nPurchaser have determined that the merger of Purchaser with and into the Company\n(the \"Merger\"), upon the terms and subject to the conditions set forth in this\nAgreement, would be fair and in the best interests of their respective\nstockholders, and such Boards of Directors have approved such Merger, pursuant\nto which each issued and outstanding share of common stock, par value $.10 per\nshare (\"Common Stock\"), of the Company (the \"Shares\") (other than (a) Shares\nowned, directly or indirectly, by the Company or any subsidiary (as defined in\nSection 9.4) of the Company or by Parent and (b) Dissenting Shares) will be\nconverted into the right to receive $7.00 per share in cash;\n\n         WHEREAS, the Merger and this Agreement require the affirmative vote, in\naccordance with applicable law and the Restated Articles of Incorporation and\nBy-laws of the Company, of at least two-thirds of the outstanding Shares\nentitled to vote thereon for the approval thereof (the \"Company Shareholder\nApproval\");\n\n         WHEREAS, Parent and Purchaser are unwilling to enter into this\nAgreement unless, contemporaneously with the execution and delivery of this\nAgreement, certain beneficial and record stockholders of the Company enter into\nan agreement (the \"Shareholders Agreement\") granting to Parent an option to\npurchase all Shares beneficially owned by such shareholders under certain\ncircumstances;\n\n         WHEREAS, Parent, Purchaser and the Company desire to make certain\nrepresentations, warranties, covenants and agreements in connection with the\nMerger and also to prescribe various conditions to the Merger; and\n\n         NOW, THEREFORE, in consideration of the representations, warranties,\ncovenants and agreements contained in this Agreement, the parties agree as\nfollows:\n\n\n                                   ARTICLE I.\n\n                                   THE MERGER\n\n         1.1.  The Merger. Upon the terms and subject to the conditions set\nforth in this Agreement, and in accordance with the provisions of The General\nand Business Corporation Law of Missouri (the \"MBCL\"), Purchaser shall be merged\nwith and into the Company at the Effective Time (as defined in Section 1.3).\nUpon the Effective Time, the separate existence of Purchaser shall cease, and\nthe Company shall continue as the surviving corporation (the \"Surviving\nCorporation\") and shall continue, under the name \"Toastmaster Inc.,\" to be\ngoverned by the laws of the State of Missouri. Purchaser and the Company are\nsometimes hereinafter referred to collectively as \"Constituent Corporations.\"\n\n\n   6\n\n\n\n\n         1.2.  Closing. Unless this Agreement shall have been terminated and the\ntransactions herein contemplated shall have been abandoned pursuant to Section\n8.1 and subject to the satisfaction or waiver in writing by the applicable party\nor parties of the latest to occur of the conditions set forth in Article VII,\nthe closing of the Merger (the \"Closing\") will take place at 10:00 a.m. on a\ndate not later than the second business day after such satisfaction or waiver of\nthe conditions set forth in Article VII (or as soon as practicable thereafter)\n(the \"Closing Date\"), at the offices of Sonnenschein Nath &amp; Rosenthal, 8000\nSears Tower, Chicago, Illinois 60606, unless another date, time or place is\nagreed to in writing by the parties hereto.\n\n         1.3.  Effective Time. As soon as practicable following the\nsatisfaction, or waiver in writing by the applicable party or parties, of the\nconditions set forth in Article VII, the parties shall execute appropriate\nArticles of Merger (the \"Articles of Merger\") as provided in the MBCL and shall\nmake such other filings, recordings or publications required under the MBCL in\nconnection with the Merger. The Merger shall become effective upon the date on\nwhich the Articles of Merger have been received for filing by the Secretary of\nthe State of Missouri, or such later date as is agreed upon by the parties and\nspecified in the Articles of Merger, and the time of such effectiveness is\nhereinafter referred to as the \"Effective Time.\"\n\n         1.4.  Effects Of The Merger.  The Merger shall have the effects set\nforth in Section 351.450 of the MBCL.\n\n         1.5.  Articles Of Incorporation; By-laws; Purposes. (a) At the\nEffective Time of the Merger, and without any further action on the part of the\nCompany, Parent or Purchaser, the Restated Articles of Incorporation of\nPurchaser, as in effect immediately prior to the Effective Time, shall be the\nArticles of Incorporation of the Surviving Corporation, until thereafter\namended, as provided therein and under the MBCL.\n\n               (b) At the Effective Time of the Merger, and without any further\naction on the part of the Company or Parent or Purchaser, the By-laws of\nPurchaser as in effect at the Effective Time shall be the By-laws of the\nSurviving Corporation until thereafter amended as provided therein or by\napplicable law.\n\n         1.6.  Directors. The directors of Purchaser at the Effective Time shall\nbe the initial directors of the Surviving Corporation, until the earlier of\ntheir resignation or removal or until their respective successors are duly\nelected and qualified, as the case may be.\n\n         1.7.  Officers. The officers of the Company at the Effective Time shall\nbe the initial officers of the Surviving Corporation, until the earlier of their\nresignation or removal or until their respective successors are duly elected or\nappointed and qualified, as the case may be.\n\n\n\n                                     - 2 -\n\n\n   7\n\n\n\n                                  ARTICLE II.\n\n                   EFFECT OF THE MERGER ON THE CAPITAL STOCK\n                        OF THE CONSTITUENT CORPORATIONS\n\n         2.1.  Conversion of Shares. At the Effective Time and by virtue of the\nMerger, automatically and without any action on the part of the holders of the\nShares or of the capital stock of Parent or Purchaser:\n\n               (a)  Each Share issued and outstanding immediately prior to the\nEffective Time (other than Shares to be cancelled pursuant to Subsection 2.1(b)\nbelow and Dissenting Shares) shall be converted into the right to receive $7.00\nin cash (the \"Merger Consideration\"). All such Shares, when so converted, shall\nno longer be outstanding and shall automatically be cancelled and retired and\nshall cease to exist, and each holder of a certificate representing any such\nShares shall cease to have any rights with respect thereto, except the right to\nreceive the Merger Consideration therefor, without interest, upon the surrender\nof such certificate in accordance with Section 2.3.\n\n               (b)  Each Share held in the treasury of the Company, if any, and\neach Share owned by Parent, Purchaser or the Company, or by any direct or\nindirect subsidiary of any of them, shall be cancelled and retired without\npayment of any consideration therefor.\n\n               (c)  All shares of common stock, par value $.01 per share, of\nPurchaser issued and outstanding immediately prior to the Effective Time shall\nbe converted into that number of validly issued, fully paid and non-assessable\nshares of common stock, par value $.01 per share, of the Surviving Corporation\nequal to the aggregate number of shares of the Company issued and outstanding\nimmediately prior to the Effective Time.\n\n         2.2.  Stock Options. The Company shall (i) terminate its Non-Statutory\nStock Option Plan, Non-Employee Directors Stock Option Plan, 1997 Non-Employee\nDirectors Stock Option Plan and Incentive Stock Option Plan (collectively the\n\"Option Plans\"), immediately prior to the Effective Time without prejudice to\nthe rights of the holders of options awarded pursuant thereto and (ii) grant no\nadditional options or similar rights under the Option Plans or otherwise on or\nafter the date hereof. As used hereafter in this Section 2.3, \"Options\" shall\ninclude each stock option granted by the Company, whether pursuant to the Option\nPlans or otherwise.\n\n         The Company shall use its reasonable best efforts to obtain the consent\nof each holder of any Options (whether or not then exercisable) that it does not\nhave the right to cancel to the cancellation of his Options (irrespective of\ntheir exercise price), and upon obtaining such consent, shall cancel the options\ncovered by such consent or, in the case of Options that the Company has the\nright to cancel, shall cancel such Options, such cancellation (whether or not\nconsent is required therefor) to take effect immediately after the Effective\nTime. In consideration of each cancellation of Options, the Company shall agree\nto and shall pay to\n\n                                     - 3 -\n\n\n   8\n\n\n\nsuch holders, immediately after the Effective Time, in respect of each Option\n(whether or not then exercisable) so cancelled, an amount equal to the excess,\nif any, of the Merger Consideration over the exercise price thereof, multiplied\nby the number of Shares subject thereto, reduced by the amount of withholding or\nother taxes required by law to be withheld.\n\n\n            2.3.  Surrender of Certificates.\n\n                  (a)  From and after the Effective Time, a bank or trust\ncompany to be designated by Parent, with the prior approval of the Company (the\n\"Exchange Agent\"), shall act as exchange agent in effecting the exchange, for\nthe Merger Consideration multiplied by the number of Shares formerly represented\nthereby, of certificates (the \"Certificates\") that, prior to the Effective Time,\nrepresented Shares entitled to payment pursuant to Section 2.1. As of the\nEffective Time, Parent shall, on behalf of Purchaser, deposit with the Exchange\nAgent, for the benefit of the holders of Shares (excluding any Shares described\nin Section 2.1(b) and Dissenting Shares, if any), for the payment in accordance\nwith this Article II, through the Exchange Agent, cash in an amount equal to the\nMerger Consideration multiplied by the number of outstanding Shares immediately\nprior to the Effective Time (excluding any Shares described in Section 2.1(b)\nand Dissenting Shares, if any) (such cash being hereinafter referred to as the\n\"Payment Fund\"). Upon the surrender of each Certificate and the delivery by the\nExchange Agent of the Merger Consideration in exchange for the Shares\nrepresented by such Certificate multiplied by the number of Shares represented\nby such Certificate, such Certificate shall forthwith be cancelled. Until so\nsurrendered and exchanged, each such Certificate (other than Certificates\nrepresenting Shares held by Parent, Purchaser or the Company or any direct or\nindirect subsidiary of Parent, Purchaser or the Company and Dissenting Shares,\nif any) shall represent solely the right to receive the Merger Consideration\napplicable to the Shares represented by such Certificate multiplied by the\nnumber of Shares represented by such Certificate. No interest shall be paid or\nshall accrue on any amount payable on and after the Effective Time by reason of\nthe Merger upon the surrender of any such Certificate. Upon the surrender and\nexchange of such an outstanding Certificate, the holder shall receive the Merger\nConsideration applicable to the Shares represented thereby, without any interest\nthereon. If the Merger Consideration is to be paid to a person other than the\nperson in whose name the Certificate representing Shares surrendered in exchange\ntherefor is registered, it shall be a condition to such payment or exchange that\nsuch Certificate so surrendered be properly endorsed or otherwise be in proper\nform for transfer, and that the person requesting such payment or exchange shall\npay to the Exchange Agent any transfer or other taxes required by reason of the\npayment of such Merger Consideration to a person other than the registered\nholder of the Certificate surrendered, or such person shall establish to the\nsatisfaction of the Exchange Agent that such tax has been paid or is not\napplicable. Notwithstanding the foregoing, neither the Exchange Agent nor any\nparty hereto shall be liable to a holder of Shares for any Merger Consideration\nor interest delivered to a public official pursuant to applicable abandoned\nproperty, escheat or similar laws.\n\n\n                                     - 4 -\n\n\n   9\n\n\n\n              (b) Promptly following the date of the first anniversary of the\nEffective Time, the Exchange Agent shall return to the Surviving Corporation all\ncash in its possession relating to the transactions described in this Agreement,\nand the Exchange Agent's duties shall terminate. Thereafter, each holder of a\nCertificate formerly representing Shares may surrender such Certificate to the\nSurviving Corporation and (subject to applicable abandoned property, escheat or\nsimilar laws) receive in exchange therefor the Merger Consideration applicable\nto the Shares represented thereby, without any interest thereon, but shall have\nno greater rights against the Surviving Corporation than may be accorded to\ngeneral creditors of the Surviving Corporation under applicable law.\n\n              (c) Promptly after the Effective Time, the Exchange Agent shall\nmail, to each record holder of Certificates that immediately prior to the\nEffective Time represented Shares, a form of letter of transmittal and\ninstructions, approved by the parties, for use in surrendering such Certificates\nand receiving the Merger Consideration therefor.\n\n              (d) At and after the Effective Time, holders of Certificates shall\ncease to have any rights as shareholders of the Company except for the right to\nsurrender such Certificates in exchange for the Merger Consideration applicable\nto the Shares represented thereby or the right, if any, to receive payment from\nthe Surviving Corporation of the \"fair value\" of such Shares as determined in\naccordance with Section 351.455 of the MBCL and Section 2.4 hereof, and there\nshall be no transfers on the stock transfer books of the Company or the\nSurviving Corporation of any Shares that were outstanding immediately prior to\nthe Effective Time. If, after the Effective Time, Certificates are presented to\nthe Surviving Corporation or the Exchange Agent, they shall be cancelled and\nexchanged for the Merger Consideration, as provided in Section 2.1 hereof,\nsubject to applicable law in the case of Dissenting Shares.\n\n              (e) The Exchange Agent shall invest any cash included in the\nPayment Fund, as directed by the Surviving Corporation, provided that such\ninvestment shall be (i) securities issued or directly and fully guaranteed or\ninsured by the United States government or any agency or instrumentality thereof\nhaving maturities of not more than six months from the Effective Time, (ii)\ncertificates of deposit, eurodollar time deposits and bankers' acceptances with\nmaturities not exceeding six months and overnight bank deposits with any\ncommercial bank, depository institution or trust company incorporated or doing\nbusiness under the laws of the United States of America, any state thereof or\nthe District of Columbia, provided that such commercial bank, depository\ninstitution or trust company has, at the time of investment, (A) capital and\nsurplus exceeding $250 million and (B) outstanding short-term debt securities\nwhich are rated at least A-1 by Standard &amp; Poor's Rating Group Division of The\nMcGraw-Hill Companies, Inc. or at least P-1 by Moody's Investors Services, Inc.\nor carry an equivalent rating by a nationally recognized rating agency if both\nof the two named rating agencies cease to publish ratings of investment, (iii)\nrepurchase obligations with a term of not more than 30 days for underlying\nsecurities of the types described in clauses (i) and (ii) above entered into\nwith any financial institution meeting the qualifications specified in clause\n(ii) above, (iv) commercial paper having a rating in the\n\n                                     - 5 -\n\n\n   10\n\n\n\nhighest rating categories from Standard &amp; Poor's Rating Group Division of The\nMcGraw-Hills Companies, Inc. or Moody's Investors Services, Inc. or carrying an\nequivalent rating by a nationally recognized rating agency if both of the two\nnamed rating agencies cease to publish ratings of investments and in each case\nmaturing within six months of the Effective Time and (v) money market mutual or\nsimilar funds having assets in excess of $1 billion. Any interest and other\nincome resulting from such investments shall be paid to the Surviving\nCorporation.\n\n      Section 2.4.  Dissenting Shares. Notwithstanding any provision of this\nAgreement to the contrary, if required by the MBCL, but only to the extent\nrequired thereby, Shares which are issued and outstanding immediately prior to\nthe Effective Time and which are held by holders of such Shares who have\nproperly demanded appraisal rights with respect thereto in accordance with\nSection 351.455 of the MBCL, and who have not failed to perfect or who have not\neffectively withdrawn or who have not lost their rights to appraisal and payment\nunder Section 351.455 of the MBCL (the \"Dissenting Shares\") will not be\nconverted into the right to receive the Merger Consideration, but such holder\nthereof shall be entitled only to such rights to appraisal and payment under the\nMBCL. If, after the Effective Time, any such holder fails to perfect or\neffectively withdraws or loses such right, such Shares will thereupon be treated\nas if they had been converted into and have become exchangeable for, at the\nEffective Time, the right to receive the Merger Consideration, without any\ninterest thereon, as provided in Section 2.1 hereof. Upon the Company's receipt\nof any notice of election to dissent in accordance with the provisions of such\nSection 351.455, the Company shall promptly provide Parent with a copy of such\nnotice of election to dissent. The Company shall not, except with the prior\nwritten consent of Parent, make any payment with respect to any such election to\ndissent or offer to settle or settle any such election to dissent.\n\n      Section 2.5.  Withholding Rights. The Surviving Corporation shall be\nentitled to deduct and withhold from the consideration otherwise payable\npursuant to this Agreement to any person such amounts as it is required to\ndeduct and withhold with respect to the making of such payment under the Code\n(as defined herein), or any provision of state, local or foreign tax law. To the\nextent that amounts are so withheld by the Surviving Corporation, such withheld\namounts shall be treated for all purposes of this Agreement as having been paid\nto a person in respect of which such deduction and withholding was made by the\nSurviving Corporation.\n\n      Section 2.6.  Lost Certificates. If any Certificates shall have been lost,\nstolen or destroyed, upon the making of an affidavit of that fact by the person\nclaiming such Certificate to be lost, stolen or destroyed and, if required by\nthe Surviving Corporation, the posting by such person of a bond in such\nreasonable amount as the Surviving Corporation may direct as indemnity against\nany claim that may be made against it with respect to such Certificate, the\nExchange Agent will pay the Merger Consideration in accordance with the terms of\nthis Agreement to the registered owner of such Shares.\n\n\n                                     - 6 -\n\n\n   11\n\n\n\n      Section 2.7.     Further Assurances. If at any time after the Effective\nTime the Surviving Corporation shall consider or be advised that any deeds,\nbills of sale, assignments or assurances or any other acts or things are\nnecessary, desirable or proper (a) to vest, perfect or confirm, of record or\notherwise, in the Surviving Corporation, its right, title or interest in, to or\nunder any of the rights, privileges, powers, franchises, properties or assets of\neither of the Constituent Corporations, or (b) otherwise to carry out the\npurposes of this Agreement, the Surviving Corporation and its proper officers\nand directors or their designees shall be authorized to execute and deliver, in\nthe name and on behalf of either of the Constituent Corporations in the Merger,\nall such deeds, bills of sale, assignments and assurances and do, in the name\nand on behalf of such Constituent Corporations, all such other acts and things\nnecessary, desirable or proper to vest, perfect or confirm its right, title or\ninterest in, to or under any of the rights, privileges, powers, franchises,\nproperties or assets of such Constituent Corporation and otherwise to carry out\nthe purposes of this Agreement.\n\n\n                                  ARTICLE III.\n\n                 REPRESENTATIONS AND WARRANTIES OF THE COMPANY\n\n      The Company represents and warrants to Parent and Purchaser as follows:\n\n      Section 3.1.  Organization, Standing and Power. The Company is a\ncorporation duly organized, validly existing and in good standing under the laws\nof Missouri and has all requisite corporate power and authority to own, operate\nand lease its properties and to carry on its business as now being conducted.\nThe Company is duly qualified to do business, and is in good standing, in each\njurisdiction set forth in Schedule 3.1, which are the only jurisdictions where\nthe character of its properties owned or held under lease or the nature of its\nactivities makes such qualification necessary, except where the failure to be so\nqualified would not have a Material Adverse Effect. For purposes of this\nAgreement, a \"Material Adverse Change\" or \"Material Adverse Effect\" means any\nchange or effect, either individually or in the aggregate, that is or may be\nreasonably expected to be materially adverse to the business, assets,\nliabilities, properties, financial condition or results of operations of the\nCompany and its subsidiaries taken as a whole. Attached to Schedule 3.1 are\ncomplete and correct copies of the Restated Articles of Incorporation and\nBy-Laws of the Company as currently in effect.\n\n      Section 3.2.  Capital Structure. (a) The authorized capital stock of the\nCompany consists of 20,000,000 shares of Common Stock and 5,000,000 shares of\nPreferred Stock, par value $0.01 per share (\"Preferred Stock\"). At the close of\nbusiness on July 31, 1998: (i) 7,551,950 shares of Common Stock were issued and\noutstanding; (ii) 93,900 shares of Common Stock were reserved for issuance upon\nthe exercise of outstanding options; and (iii) 44,825 shares of Common Stock\nwere held in the treasury of the Company. At the close of business on July 31,\n1998: (i) no shares of Preferred Stock were issued and outstanding; and (ii) no\nshares of Preferred Stock were held in the treasury of the Company.\n\n                                     - 7 -\n\n\n   12\n\n\n\nExcept as set forth above, no shares of capital stock or other equity securities\nof the Company are issued, reserved for issuance or outstanding. All outstanding\nshares of capital stock of the Company are validly issued, fully paid and\nnonassessable and not subject to preemptive rights. Since July 31, 1998, (i) no\nshares of the Company's capital stock have been issued other than pursuant to\nthe exercise of Company stock options already in existence and outstanding on\nsuch date, and (ii) the Company has not granted any stock options, warrants,\nconvertible securities or other rights to acquire any capital stock of the\nCompany.\n\n         (b) At the close of business on July 31, 1998, there are outstanding\noptions issued by the Company to purchase 93,900 shares of Common Stock.\nSchedule 3.2 contains a complete and correct list of each outstanding option to\npurchase shares of Common Stock, including: (i) the name of the holder of such\noption issued by the Company; (ii) the number of shares subject thereto; (iii)\nthe exercise or \"strike\" price; (iv) the grant date; (v) the expiration date;\nand (vi) the vesting terms. The Company has delivered to Parent complete and\ncorrect copies of all outstanding options to purchase Shares. There are no\noutstanding bonds, debentures, notes or other indebtedness or other securities\nof the Company having the right to vote (or convertible into, or exchangeable\nfor, securities having the right to vote) on any matters on which stockholders\nof the Company may vote. As of August 24, 1998, the only outstanding\nindebtedness for borrowed money of the Company and its subsidiaries is: (i) debt\nunder the Loan and Security Agreement dated as of November 19, 1993, as amended,\nbetween the Company and Fleet Capital Corporation (successor in interest to\nBarclays Credit Inc.) of $46,156,993; and (ii) other indebtedness for borrowed\nmoney not exceeding $1,752,790, the sources of which, and amounts attributable\nto each such source, are set forth in Schedule 3.2.\n\n         (c) Except as otherwise set forth in this Section 3.2 or in Schedule\n3.2, there are no outstanding securities, options, warrants, rights, calls,\ncommitments, agreements, arrangements or undertakings of any kind to which the\nCompany or any of its subsidiaries is a party or by which any of them is bound\nobligating the Company or any of its subsidiaries to issue, deliver or sell, or\ncause to be issued, delivered or sold, additional shares of capital stock or\nother voting securities of the Company or any of its subsidiaries, including any\nsecurities pursuant to which rights to acquire capital stock become exercisable\nonly after a change of control of the Company or upon the acquisition of a\nspecified amount of the Common Stock or voting powers of the Company, or\nobligating the Company or any of its subsidiaries to issue, grant, extend or\nenter into any such security, option, warrant, call, right, agreement\narrangement or undertaking.\n\n         (d) Except as set forth in Schedule 3.2, there are no outstanding\ncontractual obligations, commitments, understandings or arrangements of the\nCompany or any of its subsidiaries to repurchase, redeem or otherwise acquire or\nmake any payment in respect of any shares of capital stock of the Company or any\nof its subsidiaries and there are no irrevocable proxies with respect to shares\nof capital stock of the Company or any of its subsidiaries. Except as set forth\nin Schedule 3.2, there are no agreements or arrangements\n\n                                     - 8 -\n\n\n   13\n\n\n\npursuant to which the Company is or could be required to register any Shares or\nother securities under the Securities Act of 1933, as amended (the \"Securities\nAct\") or other agreements or arrangements with or among the Company and any\nsecurityholders of the Company with respect to securities of the Company. Except\nas set forth in Schedule 3.2, there are no securities issued by the Company or\nany of its subsidiaries or agreements, arrangements or other understandings to\nwhich the Company or any of its subsidiaries is a party giving any person any\nright to acquire equity securities of the Surviving Corporation or any of its\nsubsidiaries at or following the Effective Time and all securities, agreements,\narrangements and understandings relating to the right to acquire equity\nsecurities of the Company (whether pursuant to the exercise of options, warrants\nor otherwise) provide that, at and following the Effective Time, such right\nshall entitle the holder thereof to receive the consideration such holder would\nhave received in the Merger had such holder exercised such right immediately\nbefore the Effective Time.\n\n         (e)   Except as set forth in Schedule 3.2, there are no voting trusts\nor other agreements or understandings with respect is the voting of the capital\nstock of the Company or any of its subsidiaries to which the Company or any of\nits subsidiaries is a party.\n\n      Section 3.3.  Subsidiaries. (a) Schedule 3.3 sets forth each subsidiary of\nthe Company and the jurisdiction of incorporation of such subsidiary. Except as\nset forth in Schedule 3.3, all of the outstanding shares of capital stock and\nother ownership interests of the Company's subsidiaries have been validly issued\nand are fully paid and nonassessable and are owned, directly or indirectly, by\nthe Company. Except as set forth in Schedule 3.3, none of the shares or\nownership interests of the subsidiaries owned or held by the Company, directly\nor indirectly, is subject to any Lien (as defined in Section 3.4(b)).\n\n         (b)   Each subsidiary of the Company is a corporation duly organized,\nvalidly existing and in good standing under the laws of the jurisdiction in\nwhich it is incorporated and has all requisite corporate power and authority to\nown, operate and lease its properties and to carry on its business as currently\nconducted. Each subsidiary of the Company is duly qualified to do business, and\nis in good standing, in each jurisdiction where the character of its properties\nowned or held under lease or the nature of its activities make such\nqualification necessary, except where the failure to be so qualified would not\nhave a Material Adverse Effect. The Company has delivered to Parent complete and\ncorrect copies of the respective articles or certificates of incorporation or\nby-laws, as amended to the date hereof, of each of its subsidiaries.\n\n         (c)   Except for its subsidiaries or as otherwise set forth in Schedule\n3.3, the Company does not directly or indirectly own any capital stock of or\nother equity interest in any corporation, partnership or other person and\nneither the Company nor any of its subsidiaries is a member of or participant in\nany partnership, joint venture or similar person.\n\n\n                                     - 9 -\n\n\n   14\n\n\n\n         Section 3.4.  Authority and Absence of Conflict.\n\n         (a)   Subject to obtaining the Company Shareholder Approval, the\nCompany has the requisite corporate power and authority to enter into this\nAgreement, to perform its obligations hereunder and to consummate the\ntransactions contemplated hereby. The execution and delivery of this Agreement\nby the Company and the consummation by it of the transactions contemplated\nhereby have been duly and unanimously authorized by the Board of Directors of\nthe Company, and, except for the Company Shareholder Approval, no other\ncorporate proceedings on the part of the Company are necessary to authorize the\nexecution, delivery and performance of this Agreement and the transactions\ncontemplated hereby. This Agreement has been duly executed and delivered by the\nCompany and (subject, with respect to consummation of the Merger, to the receipt\nof the Company Shareholder Approval, and assuming that this Agreement\nconstitutes the valid and binding obligation of Parent and Purchaser)\nconstitutes a valid and binding obligation of the Company, enforceable against\nthe Company in accordance with its terms, except to the extent that its\nenforceability may be limited by applicable bankruptcy, insolvency,\nreorganization, moratorium or other laws now or hereafter in effect affecting\nthe enforcement of creditors' rights generally, or by general equitable\nprinciples regardless of whether enforceability is considered in a proceeding in\nequity or at law.\n\n         (b)   Except as set forth in Schedule 3.4, and assuming the receipt of\nthe Company Shareholder Approval, neither the execution and delivery of this\nAgreement by the Company, nor the consummation by the Company of the\ntransactions contemplated hereby, nor compliance by the Company with any of the\nprovisions hereof, will (i) violate, conflict with, or result in a breach of any\nprovision of, or constitute a default (or an event which, with notice or lapse\nof time or both, would constitute a default) under, or result in the termination\nof, or accelerate the performance or payment required by, or result in a right\nof termination or acceleration under, or result in the creation of any lien,\nsecurity interest, charge or other encumbrance (collectively, \"Liens\") upon any\nof the properties or assets of the Company or any of its subsidiaries under, any\nof the terms, conditions or provisions of (x) the Restated Articles of\nIncorporation or by-laws of the Company or any of its subsidiaries, or (y) any\nnote, bond, mortgage, indenture, deed of trust, license, lease, agreement or\nother instrument or obligation to which the Company or any of its subsidiaries\nis a party or to which any of them or any of their respective properties or\nassets may be subject, or (ii) violate any judgment, ruling, order, writ,\ninjunction, decree, statute, rule or regulation applicable to the Company and\nits subsidiaries or any of their respective properties or assets, except for (A)\nany such violation, conflict, breach, default, termination, acceleration, Lien\nthat would not have a Material Adverse Effect or prevent or delay the\nconsummation of the transactions contemplated hereby, (B) the filing of\npremerger notification reports by the parties under the Hart-Scott-Rodino\nAntitrust Improvements Act of 1976, as amended (the \"HSR Act\") and the\nexpiration of the applicable waiting period, (C) the filing with the Securities\nand Exchange Commission (the \"Commission\") of a proxy statement in definitive\nform relating to the meeting of the Company's shareholders to be held in\nconnection with the Merger (the \"Proxy Statement\") and such reports under\nSection 13(a)\n\n                                     - 10 -\n\n\n   15\n\n\n\nof the Securities Exchange Act of 1934, as amended (the \"Exchange Act\"), and\nsuch other compliance with the Exchange Act and the rules and regulations\nthereunder, as may be required in connection with this Agreement and the\ntransactions contemplated hereby, and (D) the filing of the Missouri Articles of\nMerger with the Secretary of the State of Missouri.\n\n         (c)   Other than in connection with or in compliance with the\nprovisions of the MBCL, the HSR Act, and the Exchange Act, no notice to, filing\nwith, or authorization, consent or approval of, any state or local government or\nany court, tribunal, administrative agency or commission or other governmental\nauthority or agency, domestic or foreign (a \"Governmental Entity\") is necessary\nfor the consummation by the Company of the transactions contemplated by this\nAgreement.\n\n      Section 3.5.  SEC Documents. (a) Since January 1, 1996, the Company has\nfiled with the Commission all reports, schedules, statements and other documents\nrequired to be filed by it under the Securities Act of 1933, as amended (the\n\"Securities Act\"), or the Exchange Act (as such documents have been filed prior\nto the date hereof, and amended since the time of their filing prior to the date\nhereof, and in each case including all exhibits and schedules thereto and\ndocuments incorporated by reference therein, collectively, the \"Company SEC\nDocuments\"). As of their respective dates (or if amended or superseded by a\nfiling prior to the date hereof, then on the date of such filing), the Company\nSEC Documents complied in all material respects with the requirements of the\nSecurities Act or the Exchange Act, as the case may be, and none of the Company\nSEC Documents (including any and all financial statements included therein)\ncontained any untrue statement of a material fact or omitted to state a material\nfact required to be stated therein or necessary in order to make the statements\ntherein, in light of the circumstances under which they were made, not\nmisleading. The consolidated financial statements of the Company included in all\nof the Company SEC Documents comply as to form in all material respects with\napplicable accounting requirements and the published rules and regulations of\nthe Commission with respect thereto, have been prepared in accordance with\nUnited States generally accepted accounting principles (\"GAAP\") (except, in the\ncase of unaudited consolidated quarterly statements, as permitted by Form 10-Q\nof the Commission) applied on a consistent basis during the periods involved\n(except as may be indicated therein or in the notes thereto) and fairly present\nthe consolidated financial position of the Company and its consolidated\nsubsidiaries as at the dates thereof and the results of their operations and\ncash flows for the periods then ended (subject, in the case of unaudited\nstatements, to normal year-end audit adjustments).\n\n         (b)   Except as set forth in the Company SEC Documents, neither the\nCompany nor any of its subsidiaries has any liability or obligation of any\nnature (whether accrued, absolute, contingent or otherwise) which would be\nrequired to be reflected on a balance sheet, or in the notes thereto, prepared\nin accordance with GAAP, except for (i) liabilities and obligations incurred in\nthe ordinary course of business consistent with past practice since January 1,\n1998 which could not reasonably be expected to have a Material Adverse Effect,\nand (ii) liabilities incurred under this Agreement.\n\n                                     - 11 -\n\n\n   16\n\n\n\n\n         (c)  The Company has heretofore made available or promptly shall make\navailable to Parent a complete and correct copy of any amendments or\nmodifications, which have not yet been filed with the Commission, to agreements,\ndocuments or other instruments which previously have been filed with the\nCommission pursuant to the Exchange Act.\n\n      Section 3.6.  Absence of Certain Events. Except as set forth on Schedule\n3.6, since January 1, 1998, the Company and its subsidiaries have operated their\nrespective businesses only in the ordinary course consistent with past practice\nand, except as set forth in Schedule 3.6 or in the Company SEC Documents, there\nhas not occurred (i) any event, occurrence or condition which, individually or\nin the aggregate, has, or is reasonably likely to have, a Material Adverse\nEffect; (ii) any entry into any commitment or transaction that, individually or\nin the aggregate, has or is reasonably likely to have, a Material Adverse\nEffect; (iii) any change by the Company in its accounting methods, principles or\npractices; (iv) any amendments or changes in the respective articles or\ncertificate of incorporation or organization or by-laws of the Company or any of\nits subsidiaries; (v) any revaluation by the Company or any of its subsidiaries\nof any of their respective assets; (vi) any damage, destruction or loss which\nresulted in or is reasonably likely to result in a Material Adverse Effect;\n(vii) any declaration, setting aside or payment of any dividend or other\ndistribution with respect to any shares of capital stock of the Company or any\nof its subsidiaries, or any repurchase, redemption or other acquisition by the\nCompany or any of its subsidiaries of any outstanding shares of capital stock or\nother securities of, or other ownership interests in, the Company or any of its\nsubsidiaries; (viii) any grant of any severance or termination pay to any\ndirector, officer or employee of the Company or any of its Subsidiaries; (ix)\nany entry into any employment, deferred compensation or other similar agreement\n(or any amendment to any such existing agreement) with any director, officer or\nemployee of the Company or any of its subsidiaries; (x) any increase in benefits\npayable under any existing severance or termination pay policies or employment\nagreements with any director, officer or employee of the Company or any of its\nsubsidiaries; (xi) any increase in compensation, bonus or other benefits payable\nto directors, officers or employees of the Company or any of its subsidiaries\n(except for salary increases to employees other than officers in the ordinary\ncourse of business); or (xii) any other action that would be prohibited by\nSection 5.1 on and after the date of this Agreement.\n\n      Section 3.7.  Litigation. Except as set forth in Schedule 3.7 or the\nCompany SEC Documents, there are no actions, suits or proceedings pending or, to\nthe best of the Company's knowledge, threatened against the Company or any of\nits subsidiaries, at law or in equity, or before or by any federal, state or\nlocal government or any court, tribunal, administrative agency or commission or\nother governmental authority or agency, domestic or foreign (a \"Governmental\nEntity\") or any arbitrator or arbitration tribunal, and no development has\noccurred with respect to any pending or threatened action, suit or proceeding\nthat is reasonably likely to result in a Material Adverse Effect or prevent or\ndelay the consummation of the transactions contemplated hereby.\n\n\n                                     - 12 -\n\n\n   17\n\n\n\n      Section 3.8.  Compliance with Applicable Law. The Company and its\nsubsidiaries hold and at all required times have held, all permits, licenses,\nvariances, exceptions, orders and approvals of all Governmental Entities\nnecessary for the lawful conduct of their respective businesses (the \"Permits\"),\nexcept for the failure to hold any such Permit that could not reasonably be\nexpected to have a Material Adverse Effect. The Company and its subsidiaries\nare, and at all times have been, in compliance with the terms of the Permits,\nexcept for any failure to comply which could not reasonably be expected to have\na Material Adverse Effect. The businesses of the Company and its subsidiaries\nare not being, and have not been, conducted in violation of any applicable law,\nordinance or regulation of any Governmental Entity, except for any failure to\ncomply which could not reasonably be expected to have a Material Adverse Effect.\nExcept as set forth in Schedule 3.8, no investigation or review by any\nGovernmental Entity with respect to the Company or any of its subsidiaries is\npending or, to the best of the Company's knowledge, threatened, nor has any\nGovernmental Entity, to the best of the Company's knowledge, indicated an\nintention to conduct the same.\n\n      Section 3.9.  Employee Plans. (a) Schedule 3.9 is a list of each \"employee\npension benefit plan\" (as defined in Section 3(2) of the Employee Retirement\nIncome Security Act of 1974, as amended (\"ERISA\")) (hereinafter a \"Pension\nPlan\"), \"employee welfare benefit plan\" (as defined in Section 3(1) of ERISA,\nhereinafter a \"Welfare Plan\"), and each other agreement, plan, arrangement,\nprogram or policy relating to any bonus, profit sharing, retirement, pension,\ngroup insurance, death benefit, cafeteria, flexible spending account, medical,\ndependent care, stock options, stock purchases, stock appreciation rights,\nsavings, compensation, employment, consulting, deferred compensation, severance,\ntermination pay, fringe benefits or other employee benefits, in each case\nmaintained or contributed to, or required to be maintained or contributed to, by\nthe Company, any of its subsidiaries or any other person that, together with the\nCompany, is treated as a single employer under Section 414(b), (c), (m) or (o)\nof the Code (as hereinafter defined) (each a \"Commonly Controlled Entity\") for\nthe benefit of any present or former employees of the Company or any of its\nsubsidiaries (all the foregoing being herein called \"Benefit Plans\"). The\nCompany has made available to Parent true, complete and correct copies of (i)\neach Benefit Plan, (ii) the most recent annual report on Form 5500 as filed with\nthe Internal Revenue Service with respect to each applicable Benefit Plan, (iii)\nthe most recent summary plan description (or similar document) with respect to\neach applicable Benefit Plan and (iv) each trust agreement and insurance or\nannuity contract relating to any Benefit Plan.\n\n         (b)   Except as set forth in Schedule 3.9, each Benefit Plan has been\nadministered in all material respects in accordance with its terms. Except as\nset forth in Schedule 3.9, the Company, its subsidiaries and all the Benefit\nPlans are in compliance in all material respects with the applicable provisions\nof ERISA, the Code, and all other laws, ordinances or regulations of any\nGovernmental Entities. Except as set forth in Schedule 3.9, to the best of the\nCompany's knowledge, there are no investigations by any Governmental Entities,\ntermination proceedings or other claims (except claims for benefits payable in\nthe normal\n\n                                     - 13 -\n\n\n   18\n\n\n\noperation of the Benefit Plans), suits or proceedings against or involving any\nBenefit Plan or asserting any rights to or claims for benefits under any Benefit\nPlan.\n\n         (c)  Except as set forth in Schedule 3.9, (i) all contributions to the\nBenefit Plans required to be made by the Company or any of its subsidiaries in\naccordance with the terms of the Benefit Plans, any applicable collective\nbargaining agreement and, when applicable, Section 302 of ERISA or Section 412\nof the Code, have been timely made, (ii) there has been no application for or\nwaiver of the minimum funding standards imposed by Section 412 of the Code with\nrespect to any Benefit Plan that is a Pension Plan, excluding any Pension Plan\nwhich is a multiemployer pension plan as defined in Section 4001(a)(3) of ERISA\n(hereinafter a \"Company Pension Plan\") and (iii) no Company Pension Plan had an\n\"accumulated funding deficiency\" within the meaning of Section 412(a) of the\nCode as of the end of the most recently completed plan year.\n\n         (d)  Except as set forth in Schedule 3.9, (i) each Company Pension Plan\nthat is intended to be a tax-qualified plan has been the subject of a\ndetermination letter from the Internal Revenue Service to the effect that such\nCompany Pension Plan and each related trust is qualified and exempt from Federal\nincome taxes under Sections 401(a) and 501(a), respectively, of the Code, (ii)\nno such determination letter has been revoked, and to the best of the Company's\nknowledge, revocation has not been threatened, (iii) no event has occurred and\nno circumstances exist that would adversely affect the tax-qualification of such\nCompany Pension Plan and (iv) such Company Pension Plan has not been amended\nsince the effective date of its most recent determination letter in any respect\nthat might adversely affect its qualifications, increase its cost or require\nsecurity under Section 307 of ERISA. The Company has made available to Parent a\ncopy of the most recent determination letter received with respect to each\nCompany Pension Plan for which such a letter has been issued, as well as a copy\nof any pending application for a determination letter. The Company has also\nprovided to Parent a list of all Company Pension Plan amendments as to which a\nfavorable determination letter has not yet been received.\n\n         (e)  Except as set forth in Schedule 3.9: (i) no non-exempt \"prohibited\ntransaction\" (as defined in Section 4975 of the Code or Section 406 of ERISA)\nhas occurred that involves the assets of any Benefit Plan; (ii) no Company\nPension Plan has been terminated or has been the subject of a \"reportable event\"\n(as defined in Section 4043 of ERISA and the regulations thereunder) for which\nthe 30-day notice requirement has not been waived by the Pension Benefit\nGuaranty Corporation (\"PBGC\"); and (iii) none of the Company, any of its\nsubsidiaries or, to the best of the Company's knowledge, any trustee,\nadministrator or other fiduciary of any Benefit Plan has engaged in any\ntransaction or acted in a manner that could, or has failed to act so as to,\nsubject the Company, any such subsidiary or any trustee, administrator or other\nfiduciary to any liability for breach of fiduciary duty under ERISA or any other\napplicable law.\n\n         (f)  Except as set forth in Schedule 3.9, as of the most recent\nvaluation date for each Company Pension Plan that is a \"defined benefit pension\nplan\" (as defined in\n\n                                     - 14 -\n\n\n   19\n\n\nSection 3(35) of ERISA (hereinafter a \"Defined Benefit Plan\")), there was not\nany material amount of \"unfunded benefit liabilities\" (as defined in Section\n4001(a)(18) of ERISA) under such Defined Benefit Plan, and the Company is not\naware of any facts or circumstances that would change the funded status of any\nsuch Defined Benefit Plan. The Company has made available to Parent the most\nrecent actuarial report or valuation with respect to each Defined Benefit Plan.\n\n         (g)  Except as set forth in Schedule 3.9, no Commonly Controlled Entity\nhas incurred any liability to a Pension Plan (other than for contributions not\nyet due) or to the PBGC (other than for the payment of premiums not yet due).\n\n         (h)  No Commonly Controlled Entity has (i) engaged in a transaction\ndescribed in Section 4069 of ERISA that could subject the Company to a liability\nat any time after the date hereof or (ii) acted or failed to act, in a manner\nthat could reasonably be excepted to result in fines, penalties, taxes or\nrelated charges under (x) Section 502(c), (i) or (1) of ERISA, (y) Section 4071\nof ERISA or (z) Chapter 43 of the Code.\n\n         (i)  Except as set forth in Schedule 3.9, no Commonly Controlled Entity\nhas announced an intention to withdraw, but has not yet completed withdrawal,\nfrom a \"multiemployer pension plan\" (as defined in Section 4001(a)(3) of ERISA).\nExcept as set forth in Schedule 3.9, no action has been taken, and no\ncircumstances exist, that could reasonably be excepted to result in either a\npartial or complete withdrawal from such a multiemployer pension plan by any\nCommonly Controlled Entity. Schedule 3.9 also lists for each Benefit Plan that\nis a multiemployer pension plan the Company's reasonable estimate, based upon\nthe information supplied to it by each multiemployer pension plan, of the amount\nof withdrawal liability that would be incurred if each Commonly Controlled\nEntity were to make a complete withdrawal from each such plan as of the dates\nspecified in Schedule 3.9. Schedule 3.9 also lists for each Benefit Plan that is\na multiemployer pension plan the Company's reasonable estimate, based upon the\ninformation supplied to it by each multiemployer pension plan, of the amount of\n\"unfunded vested benefits\" (within the meaning of Section 4211 of ERISA) as of\nthe dates specified in Schedule 3.9.\n\n         (j)  The list of Welfare Plans in Schedule 3.9 discloses whether each\nWelfare Plan is (i) unfunded, (ii) funded through a \"welfare benefit fund\", as\nsuch term is defined in Section 419(e) of the Code, or other funding mechanism\nor (iii) insured. Except as disclosed in Schedule 3.9, and to the best of the\nCompany's knowledge, there are no understandings, agreements or undertakings,\nwritten or oral, that would prevent any such Welfare Plan from being amended or\nterminated at any time after the Closing Date. The Company and its subsidiaries\ncomply with the applicable requirements of Section 4980B(f) of the Code with\nrespect to each Benefit Plan that is a group health plan, as such term is\ndefined in Section 5000(b)(1) of the Code.\n\n         (k)  Except as provided in the employment and severance agreements\nlisted in Schedule 3.9, no employee of the Company or any of its subsidiaries\nwill be entitled to any\n\n                                     - 15 -\n\n\n   20\n\n\n\nadditional material benefits or vesting of any benefits under any Benefit Plan\nas a result of the transactions contemplated by this Agreement.\n\n         (l)   Except as set forth in Schedule 3.9, during the period beginning\non January 1, 1998 and ending on the date of this Agreement, there has been no\nchange (i) in any actuarial or other assumption used to calculate funding\nobligations with respect to any Company Pension Plan or (ii) in the manner in\nwhich contributions to any Company Pension Plan are made or the basis on which\nsuch contributions are determined.\n\n         (m)   Except as set forth in Schedule 3.9, any amount that could be\nreceived (whether in cash or property or the vesting of property) as a result of\nany of the transactions contemplated by this Agreement by any employee, officer\nor director of the Company or any of its affiliates who is a \"disqualified\nindividual\" (as such term is defined in proposed Treasury Regulation Section\n1.280G-1) under any employment, severance or termination agreement, other\ncompensation arrangements or Benefit Plans currently in effect would not be\ncharacterized as an \"excess parachute payment\" (as such term is defined in\nSection 280G(B)(1) of the Code). Schedule 3.9 sets forth (i) the Company's\nreasonable estimate of the maximum amount that could be paid to each executive\nofficer of Company as a result of the transactions contemplated by this\nAgreement under all employment, severance and termination agreements, other\ncompensation arrangements and Benefit Plans currently in effect and (ii) the\nCompany's reasonable estimate of the \"base amount\" (as such term is defined in\nSection 280(b)(3) of the Code) for each such executive officer calculated as of\nthe date of this Agreement.\n\n      Section 3.10.  Employment Relations. Except as set forth in Schedule 3.10\nand except for any acts or omissions to act or matters referred to below which\ncould not reasonably be expected to have a Material Adverse Effect, (i) the\nCompany and its subsidiaries are, in compliance with all federal, state or other\napplicable laws respecting employment and employment practices, terms and\nconditions of employment and wages and hours, and are not engaged in any unfair\nlabor practice; (ii) no unfair labor practice complaint against the Company or\nany of its subsidiaries is pending before the National Labor Relations Board;\n(iii) there is no labor strike, dispute, slowdown or stoppage actually pending\nor threatened against or involving the Company or any of its subsidiaries; (iv)\nno representation question has been raised with the Company respecting the\nemployees of the Company or any of its subsidiaries; (v) neither the Company nor\nany of its subsidiaries is a party to any collective bargaining agreement; (vi)\nno collective bargaining agreement is currently being negotiated by the Company\nor any of its subsidiaries; (vii) no grievance is pending or threatened against\nthe Company or any of its subsidiaries; (viii) neither the Company nor any of\nits subsidiaries is liable for any severance pay or other payments to any\nemployee or former employee arising from the termination of employment under any\nbenefit or severance policy, practice, agreement, plan, or program of the\nCompany or any of its subsidiaries, nor will the Company or any of its\nsubsidiaries have any liability which exists or arises, or may be deemed to\nexist or arise, under any applicable law or otherwise, as a result of or in\nconnection with the transactions contemplated hereunder or as a result of the\n\n                                     - 16 -\n\n\n   21\n\n\n\ntermination by the Company and each of its subsidiaries of any persons employed\nby the Company or any of its subsidiaries on or prior to the Effective Time;\n(ix) each of the Company and each of its subsidiaries is in compliance with its\nobligations pursuant to the Worker Adjustment and Retraining Notification Act of\n1988, and all other employee notification and bargaining obligations arising\nunder any collective bargaining agreement, statute or otherwise; and (x) neither\nthe Company nor any of its subsidiaries has experienced any strike, threatened\nstrike, picketing or union election during the last three years.\n\n      Section 3.11.  Contracts. To the best of the Company's knowledge, Schedule\n3.11 sets forth a complete and accurate list of any of the following (including\nall amendments and\/or modifications to the following) to which the Company or\nany of its subsidiaries is a party or by which Company or any of its\nsubsidiaries is bound (collectively, \"Scheduled Contracts\"):\n\n                 (i)   all deeds, indentures, leases, subleases or other\n      instruments by which an ownership, leasehold or other interest in real\n      property is held by the Company or any of its subsidiaries;\n\n                 (ii)  all contracts, commitments or agreements, including\n      contracts or licenses pertaining to the payment of royalties, to the\n      extent that any such agreement individually includes provisions that do or\n      could involve payments or commitments (whether fixed or contingent) to or\n      from the Company or any of its subsidiaries for a fixed amount, or a\n      reasonably expected amount, in excess of $100,000;\n\n                 (iii) all management, compensation, employment or severance\n      contracts, commitments or agreements or contracts or agreements entered\n      into with any director, officer or employee of the Company or any of its\n      subsidiaries;\n\n                 (iv)  all contracts or agreements under which the Company or\n      any of its subsidiaries has any outstanding indebtedness, obligation or\n      liability for borrowed money or the deferred purchase price of property or\n      has the obligation to incur any such indebtedness, obligation or\n      liability, in each case in an amount greater than $100,000;\n\n                 (v)   all bonds or agreements of guarantee or indemnification\n      in which the Company or any of its subsidiaries acts as surety, guarantor\n      or indemnitor with respect to any individual obligation (fixed or\n      contingent) in a fixed amount or a reasonably expected amount greater than\n      $100,000; and\n\n                 (vi)  all secrecy, noncompete or other agreements which (A)\n      restrict the right of the Company or any of its subsidiaries to engage in\n      any business or (B) would restrict the right of Parent or any of\n      affiliates to engage in any business after the consummation of the\n      transactions contemplated by this Agreement;\n\n\n                                     - 17 -\n\n\n   22\n\n\n\n         Except as set forth on Schedule 3.11, (i) neither the Company nor any\nof its subsidiaries is in default under the terms of any Scheduled Contract,\n(ii) no other party thereto is in default under the terms of any Scheduled\nContract and (iii) each Material Contract is in full force and effect.\n\n      Section 3.12.  Environmental Laws and Regulations.  Except as disclosed in\nSchedule 3.12 and to the best of the Company's knowledge:\n\n                 (i)   The Company and its subsidiaries hold and are in\n      material compliance with all Environmental Permits (as defined below), and\n      the Company and its subsidiaries are otherwise in compliance with all\n      Environmental Laws (as defined below), except for any failure to hold any\n      Environmental Permit, or be in compliance with any Environmental Permit or\n      Environmental Law that could not reasonably be expected to have a Material\n      Adverse Effect, and there are no conditions that might prevent or\n      interfere in any material respect with such compliance in the future;\n\n                 (ii)  As of the date hereof, neither the Company nor any of its\n      subsidiaries has received any Environmental Claim (as defined below) and\n      there is no threatened Environmental Claim;\n\n                 (iii) Neither the Company nor any of its subsidiaries has\n      entered into any consent decree, order or agreement under any\n      Environmental Law;\n\n                 (iv)  There are no (A) underground storage tanks, (B)\n      polychlorinated biphenyls, (C) friable asbestos or asbestos-containing\n      materials, (D) surface impoundments, or (E) landfills, or present at any\n      facility currently owned, leased or operated by the Company or any of its\n      subsidiaries;\n\n                 (v)   There are no past (including, without limitation, with\n      respect to assets or businesses formerly owned, leased or operated by the\n      Company or any of its subsidiaries) or present actions, activities,\n      events, conditions or circumstances, including without limitation the\n      release, threatened release, emission, discharge, generation, treatment,\n      storage or disposal of Hazardous Materials;\n\n                 (vi)  No modification, revocation, reissuance, alteration,\n      transfer, or amendment of the Environmental Permits, or any review by, or\n      approval of, any third party of the Environmental Permits is required in\n      connection with the execution or delivery of this Agreement or the\n      consummation of the transactions contemplated hereby or the continuation\n      of the business of the Company or its subsidiaries following such\n      consummation;\n\n                 (vii) Hazardous Materials have not been generated, transported,\n      treated, stored, disposed of, released or threatened to be released at,\n      on, from or under any of the properties or facilities currently owned,\n      leased or otherwise used by\n\n                                     - 18 -\n\n\n   23\n\n\n\n      the Company or any of its subsidiaries, in violation of, or so as could\n      result in liability under, any Environmental Laws;\n\n                 (viii) None of the Company or its subsidiaries has\n      contractually assumed any liabilities or obligations under any\n      Environmental Laws;\n\n                 (ix)   For purposes of this Agreement, the following terms\n      shall have the following meanings: (A) \"Environmental Claim\" means any\n      written notice, claim, demand, action, suit, complaint, proceeding or\n      other communication by any person alleging liability or potential\n      liability (including without limitation liability or potential liability\n      for investigatory costs, cleanup costs, governmental response costs,\n      natural resource damages, property damage, personal injury, fines or\n      penalties) arising out of, relating to, based on or resulting from (1) the\n      presence, discharge, emission, release or threatened release of any\n      Hazardous Materials at any location, owned, leased or operated by the\n      Company or any of its subsidiaries or (2) circumstances forming the basis\n      of any violation or alleged violation of any Environmental Law or\n      Environmental Permit or (3) otherwise relating to obligations or\n      liabilities under any Environmental Laws; (B) \"Environmental Permits\"\n      means all permits, licenses, registrations and other governmental\n      authorizations required under Environmental Laws for the Company and its\n      subsidiaries to conduct their operations and businesses on the date hereof\n      and consistent with past practices; (C) \"Environmental Laws\" means all\n      applicable federal, state and local statutes, rules, regulations,\n      ordinances, orders, decrees and common law relating in any manner to\n      contamination, pollution or protection of the environment, including\n      without limitation the Comprehensive Environmental Response, Compensation\n      and Liability Act, the Solid Waste Disposal Act, the Clean Air Act, the\n      Clean Water Act, the Toxic Substances Control Act, the Occupational Safety\n      and Health Act, the Emergency Planning and Community-Right-to-Know Act,\n      the Safe Drinking Water Act, all as amended, and similar state laws; and\n      (D) \"Hazardous Materials\" means all hazardous or toxic substances, wastes,\n      materials or chemicals, petroleum (including crude oil or any fraction\n      thereof) and petroleum products, friable asbestos and asbestos-containing\n      materials, pollutants, contaminants and all other materials, and\n      substances regulated pursuant to, or that could reasonably be expected to\n      provide the basis of liability under, any Environmental Law.\n\n      Section 3.13.  Property and Leases. (a) Schedule 3.13 sets forth all of\nthe real property owned by the Company and each of its subsidiaries (the \"Owned\nReal Property\"). Schedule 3.13 sets forth all of the real property and interests\nin real property leased by the Company and each of its subsidiaries (the \"Leased\nReal Property\", and together with the Owned Real Property, the \"Company\nProperty\"). Each of the Company or its subsidiaries, as the case may be, has\ngood and marketable fee title to the Owned Real Property, subject only to\nPermitted Liens (as defined below) and those Liens described in (b) below,\nexcept for (a) Liens set forth on Schedule 3.13, (b) Liens reflected in the\nCompany SEC Documents, and (c) Liens, easements, restrictions and reservations\nthat are reflected in the title reports or\n\n                                     - 19 -\n\n\n   24\n\n\n\nsurveys, if any, delivered to Purchaser in connection with the transactions\ncontemplated hereby. Each of the Company or its subsidiaries, as the case may\nbe, has a valid and existing leasehold interest in all Leased Real Property,\nsubject only to Permitted Liens and those Liens described in (b) below, except\nfor (a) Liens set forth on Schedule 3.13 and (b) Liens reflected in the Company\nSEC Documents.\n\n         (b)   All Company Property and personal properties owned by the Company\nor any of its subsidiaries are owned free and clear of all Liens or leased free\nand clear of all Liens applicable to such leasehold interest, except for (i)\nLiens for taxes and assessments or governmental charges or levies which are not\nat the time of Closing due or payable or which are being contested in good faith\nand (ii) Liens in respect of pledges or deposits under workers' compensation\nlaws or similar legislation, carriers', warehousemen's, mechanics', laborers'\nand materialmen's and similar Liens, which have been incurred in the ordinary\ncourse of business, so long as the obligations secured by such Liens are not\nthen delinquent or which are being contested in good faith. The Owned Real\nProperty and personal properties owned by the Company or any of its subsidiaries\nare not subject to any Liens, building or use restrictions, exceptions,\nvariances, reservations or limitations of any nature whatsoever which interfere\nwith or are violated by the existence of the improvements thereon or the current\nuse and operation of each such Owned Real Property or personal properties,\nrespectively, to which it relates in the business of the Company and its\nsubsidiaries as currently conducted, except for any interference or violation\nthat could not reasonably be expected to have a Material Adverse Effect.\n\n      Section 3.14.  Intellectual Property.  (a) Schedule 3.14 lists all\nIntellectual Property (as defined below) owned or used by the Company or its\nsubsidiaries, which is the subject of a registration or application for\nregistration submitted to any Governmental Entity, and summarizes the nature of\nthe Company's or its subsidiaries' rights therein and thereto.\n\n         (b)   The Company and its subsidiaries own or have the right to use all\nIntellectual Property reasonably necessary for the Company and its subsidiaries\nto conduct their business as it is currently conducted and consistent with past\npractice.\n\n         (c)   Except as set forth on Schedule 3.14 and except for acts or\nomissions or matters referred to below which could not reasonably be expected to\nhave a Material Adverse Effect: (i) all of the registered Intellectual Property\nof the Company and its subsidiaries listed on Schedule 3.14 is subsisting and\nunexpired, free of all Liens, has not been abandoned and, to the best of the\nCompany's knowledge, does not infringe or otherwise impair the intellectual\nproperty rights of any third party; (ii) none of the Intellectual Property owned\nby the Company or its subsidiaries is the subject of any license, security\ninterest or other agreement granting rights therein to any third party; (iii) to\nthe best of the Company's knowledge, no judgment, decree, injunction, rule or\norder has been rendered by any Governmental Entity which would limit, cancel or\nquestion the validity of, or the Company's or its subsidiaries' rights in and\nto, any Intellectual Property; (iv) the Company has not received notice of any\npending or threatened suit, action or proceeding that seeks to limit,\n\n                                     - 20 -\n\n\n   25\n\n\n\ncancel or question the validity of, or the Company's or its subsidiaries' rights\nin and to, any Intellectual Property; and (v) the Company and its subsidiaries\ntake reasonable steps to protect, maintain and safeguard the Intellectual\nProperty owned by the Company or its subsidiaries, including any Intellectual\nProperty for which improper or unauthorized disclosure would impair its value or\nvalidity.\n\n         (d)   For purposes of this Agreement \"Intellectual Property\" shall mean\nall rights, privileges and priorities provided under U.S., state and foreign law\nrelating to intellectual property, including without limitation all (i) (A)\ninventions, discoveries, processes, formulae, designs, methods, techniques,\nprocedures, concepts, developments, technology, new and useful improvements\nthereof and know-how relating thereto, whether or not patented or eligible for\npatent protections; (B) copyrights and copyrightable works, including computer\napplications, programs, software, databases and related items; (C) trademarks,\nservice marks, trade names, and trade dress, the goodwill of any business\nsymbolized thereby, and all common-law rights relating thereto; (D) trade\nsecrets and other confidential information; and (ii) all registrations,\napplications, recordings, and licenses or other similar agreements related to\nthe foregoing.\n\n      Section 3.15. Insurance. The Company has provided to Parent copies of all\npolicies of insurance maintained by or on behalf of the Company or its\nsubsidiaries. The insurance coverage provided by such policies of insurance will\nbe continued through the Effective Time and will not terminate or lapse by\nreason of the transactions contemplated by this Agreement. Except as set forth\nin Schedule 3.15, neither the Company nor any of its subsidiaries has been\ndenied insurance coverage by any carrier in the last three years.\n\n      Section 3.16. Takeover Statutes. The Board of Directors of the Company has\ntaken all appropriate action to render the restrictions on business combinations\ncontained in Section 351.459 of the MBCL inapplicable to this Agreement and the\nShareholders Agreement and the consummation of the transactions contemplated\nhereunder and thereunder, including, without limitation, the purchase of\nsecurities pursuant to the Shareholders Agreement.\n\n      Section 3.17. Taxes. (a) For purposes of this Agreement, (i) \"Tax\" or\n\"Taxes\" shall mean all Federal, state, county, local, municipal, foreign and\nother taxes, assessments, duties or similar charges of any kind whatsoever,\nincluding all corporate franchise, income, sales (including bulk sales), use, ad\nvalorem, intangible, receipts, value added, profits, license, withholding,\npayroll, employment, excise, premium, real property, personal property, personal\nproperty, customs, net worth, estimated, capital, gains, transfer, stamp,\ndocumentary, social security, alternative minimum, accumulated earnings, goods\nand services, recapture, recording, severance, environmental (including but not\nlimited to, taxes under Section 59A of the Code), occupation and other taxes,\nand including any interest, penalties and additions imposed with respect to such\namounts; (ii) \"Code\" shall mean the Internal Revenue Code of 1986, as amended,\nand reference to any Section of the Code shall refer to that Section in effect\nat the date hereof; (iii) \"Taxing Authority\" shall mean any\n\n                                     - 21 -\n\n\n   26\n\n\n\ndomestic, foreign, federal, national, state, county or municipal or other local\ngovernment, any subdivision, agency, commission or authority thereof, or any\nquasi-governmental body exercising any taxing authority or any other authority\nexercising Tax regulatory authority; and (iv) \"Return\" or \"Returns\" shall mean\nall returns, reports, estimates, information returns and statements, including\nany related or supporting information filed with respect to any of the\nforegoing, maintained, filed or to be filed with any Taxing Authority in\nconnection with the determination, assessment, collection or administration of\nany Taxes.\n\n         (b)   Except as set forth in Schedule 3.17, the Company and each of its\nsubsidiaries has timely filed, with the appropriate Taxing Authority all\nmaterial Returns required to be filed on or prior to the date hereof and each\nsuch Return was complete in all material respects at the time of filing.\n\n         (c)   Except as set forth on Schedule 3.17, all Taxes (including Taxes\nfor which no Returns are required to be filed and including payroll and wage\nwithholding Taxes) of the Company and any of its subsidiaries (\"Covered Taxes\"),\nwhich are due and payable have been duly and timely paid.\n\n         (d)   Except as set forth on Schedule 3.17, the Company has made\navailable for inspection by Parent (i) complete and correct copies of all\nReturns of the Company and each of its subsidiaries, with respect to Federal,\nstate, provincial, county, local, municipal, foreign and other income, profits,\ncorporate franchise, receipts, sales, excise, property, net worth and all other\nTaxes, that are or have been required to be filed for taxable periods ending\nwith or within the last five calendar years (ii) complete and correct copies of\nall material ruling requests, private letter rulings, revenue agent reports,\ninformation document requests and responses thereto, notices of proposed\ndeficiencies, deficiency notices, applications for changes in method of\naccounting, protests, petitions, closing agreements, settlement agreements, and\nany similar documents submitted by, received by or agreed to by or on behalf of\nthe Company or any of the subsidiaries and relating to Covered Taxes.\n\n         (e)   Except as set forth on Schedule 3.17 and for taxes not yet due,\nno material Liens for Taxes exist with respect to any of the assets or\nproperties of the Company or any of its subsidiaries. Schedule 3.17 lists all\nfederal, state and local income Returns filed with respect to the Company for\ntaxable periods ended on or after December 31, 1994, indicates those Returns\nthat have been audited, and indicates those Returns that currently are the\nsubject of audit or any administrative or judicial proceeding. Except as set\nforth on Schedule 3.17, each deficiency resulting from any audit or examination\nrelating to Covered Taxes by any Taxing Authority has been paid and no issues\nwere raised in writing by the relevant Taxing Authority during any such audit or\nexamination that might apply to taxable periods other than the taxable period to\nwhich such audit or examination related. Except as set forth on Schedule 3.17,\n(i) to the best of the Company's knowledge, no Returns with respect to Federal\nincome Taxes are currently under audit or examination by the Internal Revenue\nservice and any other Taxing Authority, (ii) to the best of the Company's\nknowledge, no audit or examination relating to Covered Taxes is currently being\nconducted\n\n                                     - 22 -\n\n\n   27\n\n\nby the Internal Revenue Service or any other Taxing Authority and (iii) neither\nthe Internal Revenue Service nor any other Taxing Authority has given notice in\nwriting that it will commence any such audit or examination.\n\n         (f)   Except as set forth on Schedule 3.17, as of the date hereof no\nTaxing Authority is asserting or, to the best of the Company's knowledge,\nthreatening to assert, any deficiency or claim for Covered Taxes or any\nadjustment to any item of income, gain, deduction, loss, credit, or tax basis\nentering into the computation of Covered Taxes.\n\n         (g)   Except as set forth in Schedule 3.17, (i) no person has made with\nrespect to the Company or any of its subsidiaries, or with respect to any\nproperty held by the Company or any of its subsidiaries, any consent under\nSection 341 of the Code, (ii) no property owned by the Company or any of its\nsubsidiaries constitutes \"tax-exempt use property\" (as defined in Section 169(h)\nof the Code), (iii) to the best of the Company's knowledge, neither the Company\nnor any of its Subsidiaries is a party to any lease made pursuant to Section\n168(f)(8) of the Internal Revenue Code of 1954, as amended and in effect prior\nto the date of enactment of the Tax Equity and Fiscal Responsibility Act of 1982\nand (iv) none of the assets owned by the Company or any of its Subsidiaries is\nsubject to a lease under Section 7701(h) of the Code or under any predecessor.\n\n         (h)   There is no agreement extending, or having the effect of\nextending, the period of assessment or collection of any Covered Taxes and no\nunrevoked power of attorney with respect to any Covered Taxes has been executed\nor filed with the Internal Revenue Service or any other Taxing Authority.\n\n         (i)   Since January 1, 1995, the Company has not been a member of any\naffiliated or consolidated, combined, unitary or aggregate group for purposes of\nfiling Returns or paying Taxes at any time except for a group for which the\nCompany is a parent.\n\n         (j)   Except as set forth in Schedule 3.17, none of the Company or any\nof its subsidiaries is a party to or is bound by any Tax sharing agreements with\nany of its affiliates, or with any Taxing Authority.\n\n         (k)   Except as set forth on Schedule 3.17, none of the Company or any\nof the subsidiaries will be required in a taxable period beginning on or after\nthe Closing Date to include any amount in income pursuant to Section 481 of the\nCode, by reason of a change in accounting methods or otherwise, as a result of\nactions taken prior to the Closing Date.\n\n         (l)   Schedule 3.17 lists each state, county, local, municipal or\nforeign jurisdiction in which Company or any of the subsidiaries files or, has\nfiled a Return or is or has been liable for Tax on a \"nexus\" basis for the\ncurrent and preceding three years.\n\n         (m)   The Company has an estimated consolidated net operating carryover\nfor regular Federal income tax purposes as of December 31, 1997 of approximately\n$3,400,000\n\n                                     - 23 -\n\n\n   28\n\n\n\nfor the year ended December 31, 1997 and approximately $507,000 for the year\nended December 31, 1996. The Company has tax credit carryforwards as of December\n31, 1997 of approximately $300,000 for the year ended December 31, 1993 and\napproximately $222,000 for the year ended December 31, 1996.\n\n      Section 3.18. Customers. Schedule 3.18 sets forth a list of the twenty\n(20) largest customers of the Company and its subsidiaries, as measured by the\ndollar amount of purchases by such customers, during the year ended December 31,\n1997 and the six months ended June 30, 1998, calculated based on the approximate\ntotal sales by the Company and its subsidiaries to each such customer during\neach such period. To the best of the Company's knowledge, since December 31,\n1997, no customer listed on Schedule 3.18 has (i) cancelled or otherwise\nterminated, or threatened to cancel or otherwise terminate, its relationship\nwith the Company or any of its subsidiaries, or (ii) materially changed, or\nrequested a material change in the price or quantity of the goods, services and\nproducts sold by the Company or any of its subsidiaries to such customer.\n\n      Section 3.19. Interests of Certain Persons. Except as disclosed in\nSchedule 3.19, no officer or director of the Company, or any \"associate\" (as\nsuch term is defined in Rule 14a-1 under the Exchange Act) of any such officer\nor director, has any interest in any contract or property (real or personal),\ntangible or intangible, used in or pertaining to the business of the Company or\nany of its subsidiaries or has indebtedness owing to the Company or any of its\nsubsidiaries.\n\n      Section 3.20. Information Supplied. None of the information supplied or to\nbe supplied by the Company for inclusion or incorporation by reference in the\nProxy Statement (as defined in Section 6.1(a)) will, at the date it is first\nmailed to the Company's shareholders or at the time of the Shareholders Meeting\n(as defined in Section 6.1(c)), contain any untrue statement of a material fact\nor omit to state any material fact required to be stated therein or necessary in\norder to make the statements therein, in the light of the circumstances under\nwhich they are made, not misleading. The Proxy Statement will comply as to form\nin all material respects with the requirements of the Exchange Act and the rules\nand regulations promulgated thereunder, except that no representation is made by\nthe Company with respect to statements made or incorporated by reference therein\nbased on information supplied in writing by or on behalf of Parent or Purchaser\nspecifically for inclusion therein.\n\n      Section 3.21. Required Company Vote. The Company Shareholder Approval,\nbeing the affirmative vote of at least two-thirds of the outstanding Shares, are\nthe only votes of the holders of any class or series of the Company's securities\nnecessary to approve this Agreement, the Merger and the other transactions\ncontemplated hereby.\n\n      Section 3.22. Opinion Of Financial Advisor.  The Company has received the\nopinion of Credit Suisse First Boston Corporation (the \"Company Financial\nAdvisor\"), dated the date of this Agreement, to the effect that, as of such\ndate, the Merger Consideration to be\n\n                                     - 24 -\n\n\n   29\n\n\n\nreceived by the Company's shareholders pursuant to the Merger is fair to such\nholders of Shares from a financial point of view.\n\n      Section 3.23. Board Recommendation. The Board of Directors of the Company,\nat a meeting duly called and held, has duly and unanimously, subject to the\nterms and conditions set forth herein, (i) determined that this Agreement and\nthe transactions contemplated hereby, including the Merger, are fair to and in\nthe best interests of the shareholders of the Company and (ii) subject to\nSection 6.1(c) hereof, resolved to recommend that the holders of Shares approve\nthis Agreement and the transactions contemplated herein, including the Merger.\n\n      Section 3.24. Brokers. No broker, investment banker or other person, other\nthan the Company Financial Advisor, the fees and expenses of which will be paid\nby the Company, is entitled to any broker's, finder's or other similar fee or\ncommission in connection with the transactions contemplated by this Agreement\nbased upon arrangements made by or on behalf of the Company. A copy of the\nengagement letter between the Company Financial Advisor and the Company setting\nforth the fees and expenses to be paid by the Company in connection with the\ntransactions contemplated by this Agreement has been provided to Parent.\n\n\n                                  ARTICLE IV.\n\n             REPRESENTATIONS AND WARRANTIES OF PARENT AND PURCHASER\n\n      Parent and Purchaser each represent and warrant, jointly and severally, to\nthe Company as follows:\n\n      4.1.  Organization and Qualification. Each of Parent and Purchaser is a\ncorporation duly organized, validly existing and in good standing under the laws\nof its jurisdiction of incorporation and is in good standing as a foreign\ncorporation in each jurisdiction where the properties owned, leased or operated\nby it, or the business conducted by it, requires such qualification and where\nfailure to so qualify or be in good standing would have an Acquiror Material\nAdverse Effect. For purposes of this Agreement, an \"Acquiror Material Adverse\nEffect\" means any change or effect, either individually or in the aggregate,\nthat is or may be reasonably expected to be materially adverse to the business,\nassets, liabilities, properties, financial condition or results of operations of\nParent and its subsidiaries taken as a whole. Each of Parent and Purchaser has\nthe requisite corporate power and authority to own, operate and use its\nrespective properties to carry on its respective businesses as they are now\nbeing conducted. Copies of the respective charter documents and by-laws of\nParent and Purchaser have heretofore been delivered to the Company, and such\ncopies are complete and correct as of the date hereof.\n\n\n                                     - 25 -\n\n\n   30\n \n \n\n      4.2.  Capital Stock of Parent and Purchaser. As of the date hereof, and at\nall times thereafter up to and including the Effective Time, all of the\noutstanding shares of common stock, par value $.01 per share, of Purchaser shall\nbe duly authorized, validly issued, fully paid, non-assessable and owned\ndirectly by Parent, free and clear of all Liens.\n\n      4.3.  Authority and Absence of Conflict.\n\n            (a) Each of Parent and Purchaser has the requisite corporate power\nand authority to enter into this Agreement and to perform its obligations\nhereunder and to consummate the transactions contemplated hereby. The execution\nand delivery of this Agreement by Parent and Purchaser and the consummation by\nParent and Purchaser of the transactions contemplated hereby have been duly\nauthorized by the respective Boards of Directors of Parent and Purchaser, and by\nParent as sole shareholder of Purchaser, and no other corporate proceedings on\nthe part of Parent or Purchaser are necessary to authorize the execution,\ndelivery and performance of this Agreement and the transactions contemplated\nhereby. This Agreement has been duly executed and delivered by Parent and\nPurchaser and (assuming that this Agreement constitutes the valid and binding\nobligation of the Company) constitutes a valid and binding obligation of each of\nthem, enforceable against each of them in accordance with its terms except to\nthe extent that its enforceability may be limited by applicable bankruptcy,\ninsolvency, reorganization, moratorium or other laws now or hereafter in effect\naffecting the enforcement of creditors' rights generally or by general equitable\nprinciples regardless of whether enforceability is considered in a proceeding in\nequity or at law.\n\n            (b) Neither the execution and delivery of this Agreement by Parent\nor Purchaser, nor the consummation by them of the transactions contemplated\nhereby, nor compliance by Parent or Purchaser with any of the provisions hereof,\nwill (i) violate, conflict with, or result in a breach of any provision of, or\nconstitute a default (or an event which, with notice or lapse of time or both,\nwould constitute a default) under, or result in the termination of, or\naccelerate the performance required by, or result in a right of termination or\nacceleration under, or result in the creation of any Lien upon any of the\nproperties or assets of Parent or Purchaser under any of the terms, conditions\nor provisions of (x) the charter documents or by-laws of Parent or Purchaser or\n(y) any note, bond, mortgage, indenture, deed of trust, license, lease,\nagreement or other instrument or obligation to which Parent or Purchaser is a\nparty, or to which any of them, or any of their respective properties or assets,\nmay be subject, or (ii) subject to compliance with the statutes and regulations\nreferred to in the next subsection, violate any judgment, ruling, order, writ,\ninjunction, decree, statute, rule or regulation applicable to Parent or\nPurchaser or any of their respective properties or assets; except, in the case\nof each of clauses (i)(y) and (ii) above, for such violations, conflicts,\nbreaches, defaults, terminations, accelerations or creations of Liens which\nwould not prevent or delay in any material respect the consummation of the\nMerger.\n\n            (c) Other than in connection with or in compliance with the\nprovisions of the MBCL, the HSR Act and the Exchange Act, no notice to, filing\nwith, or\n\n                                     - 26 -\n\n\n   31\n\n\n\nauthorization, consent or approval of, any Governmental Entity is necessary for\nthe consummation by Parent and Purchaser of the transactions contemplated by\nthis Agreement, except where the failure to give such notices, make such\nfilings, or obtain authorizations, consents or approvals would not prevent or\ndelay in any material respect the consummation of the Merger.\n\n      4.4.  Litigation. Except as set forth in Schedule 4.4, there are no\nactions, suits or proceedings pending or, to Parent's knowledge, threatened\nagainst Parent or any of its subsidiaries, at law or in equity, or before or by\nany Governmental Entity or any arbitrator or arbitration tribunal, and no\ndevelopment has occurred with respect to any pending or threatened action, suit\nor proceedings that is reasonably likely to prevent or delay the consummation of\nthe transactions contemplated hereby.\n\n      4.5.  Brokers. No agent, broker, investment banker, financial advisor or\nother person or entity, other than Houlihan Lockey Howard &amp; Zukin Financial\nAdvisors, Inc. (\"Houlihan\"), the fees and expenses of which will be paid by\nParent, is or will be entitled to any brokerage commission, finder's fee or like\npayment in connection with any of the transactions contemplated by this\nAgreement based upon arrangements made by or on behalf of Parent or Purchaser.\n\n      4.6.  Proxy Statement. None of the information supplied in writing by\nParent or Purchaser specifically for inclusion in the Proxy Statement will, at\nthe date it is first mailed to the shareholders of the Company, at the time of\nthe Shareholders Meeting or at the Effective Time, contain any untrue statement\nof a material fact or omit to state any material fact required to be stated\ntherein or necessary in order to make the statements therein, in light of the\ncircumstances under which they were made, not misleading.\n\n      4.7.  Solvency Opinion. Parent has received the opinion of Houlihan, dated\nthe date of this Agreement, with respect to the solvency of the Parent and its\nconsolidated subsidiaries after giving effect to the Merger and the related\nfinancings necessary to consummate the transactions contemplated by this\nAgreement. A copy of this opinion has been provided to the Company.\n\n\n                                   ARTICLE V.\n\n           COVENANTS RELATING TO CONDUCT OF BUSINESS PRIOR TO MERGER\n\n      5.1.  Conduct Of Business Of The Company. Except as otherwise contemplated\nhereby or as expressly set forth in Schedule 5.1, the Company covenants and\nagrees that, unless Parent shall otherwise agree in writing prior to the\nEffective Time:\n\n      (a)  The business of the Company and its subsidiaries shall be conducted\nonly in, and the Company and its subsidiaries shall not take any action except\nin, the ordinary course of\n\n                                     - 27 -\n\n\n   32\n\n\n\nbusiness, and the Company shall use its reasonable best efforts to maintain and\npreserve intact its and its subsidiaries' business organization, assets,\nemployees, officers and advantageous business relationships.\n\n         (b) Neither the Company nor any of its subsidiaries shall directly or\nindirectly do any of the following: (i) except in the ordinary course of\nbusiness, sell, pledge, dispose of or encumber any assets of the Company or of\nany of its subsidiaries other than any such assets the value of which do not\nexceed $100,000 individually and $500,000 in the aggregate; (ii) amend its\ncharter or by-laws or similar organizational documents; (iii) except with\nrespect to the creation, amendment, or exercise of rights under any shareholders\nrights plan (provided that Parent, Purchaser and its affiliates and the\ntransactions contemplated by this Agreement and the Shareholders Agreement are,\nand continue to be, exempt from the operation of such plan), split, combine or\nreclassify any shares of its capital stock or declare, set aside, make or pay\nany dividend or distribution payable in cash, stock, property or otherwise with\nrespect to any of its capital stock (except for dividends by wholly-owned\nsubsidiaries of the Company); (iv) redeem, purchase or otherwise acquire or\noffer to redeem, purchase or otherwise acquire any capital stock of the Company;\n(v) adopt a plan of liquidation or resolutions providing for the liquidation,\ndissolution, merger, consolidation or other reorganization of the Company; or\n(vi) authorize or propose any of the foregoing, or enter into any contract,\nagreement, commitment or arrangement to do any of the foregoing, except to the\nextent otherwise permitted herein.\n\n         (c) Neither the Company nor any of its subsidiaries shall, directly or\nindirectly, (i) except for Shares issuable upon exercise of options outstanding\nunder the Option Plans on the date hereof, issue, sell, pledge, dispose of or\nencumber, or authorize, propose or agree to the issuance, sale, pledge,\ndisposition or encumbrance of, any shares of, or any options, warrants or rights\nof any kind to acquire any shares of or any securities convertible into or\nexchangeable or exercisable for any shares of, its capital stock of any class or\nany other securities in respect of, in lieu of, or in substitution for Shares\noutstanding on the date hereof; (ii) make any material acquisition, by means of\nmerger, consolidation or otherwise, or material disposition (other than\ndisposition of assets in the ordinary course of business), of assets or\nsecurities, or make any loans, advances or capital contributions to, or\ninvestment in, any individual or entity (other than to the Company or a\nwholly-owned subsidiary of the Company); (iii) except in the ordinary course of\nbusiness, incur any indebtedness or issue any debt securities or assume,\nguarantee, endorse or otherwise become liable or responsible (whether directly,\ncontingently or otherwise) for, the obligations of any other individual or\nentity; (iv) change the capitalization of the Company (other than the incurrence\nof indebtedness otherwise permitted in this Agreement); (v) except in the\nordinary course, change any assumption underlying, or method of calculating, any\nbad debt, contingency or other reserve; (vi) pay, discharge or satisfy any\nclaims, liabilities or obligations (absolute, accrued, contingency or\notherwise), other than the payment, discharge or satisfaction of liabilities in\nthe ordinary course of business or as required by applicable law; (vii) waive,\nrelease, grant or transfer any rights of value or modify or change in any\nmaterial respect any existing license, lease, contract or other document, other\nthan in the ordinary course of\n\n                                     - 28 -\n\n\n   33\n\n\n\nbusiness; or (viii) authorize any of the foregoing, or enter into or modify any\ncontract, agreement, commitment or arrangement to do any of the foregoing.\n\n         (d) Neither the Company nor any of its subsidiaries shall (except as\nrequired pursuant to any agreements in effect at the date hereof) adopt or amend\nor take any actions to accelerate any rights or benefits under (except as may be\nrequired by law) any bonus, profit sharing, compensation, stock option, pension,\nretirement, deferred compensation, employment, severance, termination or other\nemployee benefit plan, agreement, trust, fund or other arrangement for the\nbenefit or welfare of any employee or any officer or director or former employee\nor, increase (except for increases to employees other than officers in the\nordinary course of business) the compensation or fringe benefits of any employee\nor former employee or pay any benefit not permitted by any existing plan,\narrangement or agreement; provided, however, the Company may take the action,\nprior to the Effective Time, with respect to the SERP (as defined in Section\n6.8) and the Rabbi and Secular Trusts, as contemplated by Section 6.8.\n\n         (e) Except in the ordinary course of business, neither the Company nor\nany of its subsidiaries shall make any tax election or, except in the ordinary\ncourse of business, settle or compromise any federal, state, local or foreign\nincome tax liability.\n\n         (f) Except in the ordinary course of business, neither the Company nor\nany of its subsidiaries shall permit any insurance policy naming it as\nbeneficiary or a loss payee to be cancelled or terminated without notice to\nParent.\n\n         (g) Neither the Company nor any of its subsidiaries shall agree, in\nwriting or otherwise, to take any of the foregoing actions or any action which\nwould make any representation or warranty in Article III hereof untrue or\nincorrect.\n\n\n                                  ARTICLE VI.\n\n                             ADDITIONAL AGREEMENTS\n\n      6.1. Preparation Of Proxy Statement; Shareholders Meeting. (a) Promptly\nfollowing the date of this Agreement, the Company shall prepare a proxy\nstatement relating to the Shareholders Meeting (the \"Proxy Statement\"), and the\nCompany shall prepare and file with the Commission the Proxy Statement. Parent\nwill cooperate with the Company in connection with the preparation of the Proxy\nStatement including, but not limited to, furnishing to the Company any and all\ninformation regarding Parent and Purchaser and their affiliates as may be\nrequired to be disclosed therein. The information provided and to be provided by\nParent and the Company, respectively, for use in the Proxy Statement shall, at\nthe date it is first mailed to the Company's shareholders and on the date of the\nShareholders Meeting referred to below, be true and correct in all material\nrespects and shall not omit to state any material fact required to be stated\ntherein or necessary in order to make the\n\n                                     - 29 -\n\n\n   34\n\n\n\nstatements in such information, in light of the circumstances under which they\nare made, not misleading, and the Company and Parent each agree to correct any\ninformation provided by it for use in the Proxy Statement which shall have\nbecome false or misleading in any material respect.\n\n         (b) The Company will as promptly as practicable notify Parent of (i)\nthe receipt of any comments from the Commission and (ii) any request by the\nCommission for any amendment to the Proxy Statement or for additional\ninformation. All filings by the Company with the Commission, including the Proxy\nStatement and any amendment thereto, and all mailings to the Company's\nshareholders in connection with the Merger, including the Proxy Statement, shall\nbe subject to a reasonable opportunity to review and comment thereon and receipt\nof approval by Parent (such approval not to be unreasonably withheld or\ndelayed). Parent will furnish to the Company the information relating to it and\nits affiliates, including Purchaser, the financing for the transactions\ncontemplated by this Agreement and the Shareholders Agreement and any other\nmatters required by the Exchange Act and the rules and regulations promulgated\nthereunder to be set forth in the Proxy Statement.\n\n         (c) The Company will: (i) as promptly as practicable following the date\nof this Agreement, duly call, give notice of, convene and hold a meeting of its\nshareholders (the \"Shareholders Meeting\") for the purpose of approving this\nAgreement and the transactions contemplated hereby to the extent required by the\nMBCL and the Company's Restated Articles of Incorporation; and (ii) through its\nBoard of Directors, recommend to its shareholders approval of the foregoing\nmatters; provided; however that the Board of Directors may fail to make or\nwithdraw such recommendation, but only if the Board of Directors of the Company\nshall have concluded in good faith on the basis of written advice from outside\ncounsel that such action is required to prevent the Board of Directors of the\nCompany from breaching its fiduciary duties to the shareholders of the Company\nunder applicable law. Any such recommendation, together with a copy of the\nopinion referred to in Section 3.22, shall be included in the Proxy Statement.\n\n      6.2. Access To Information; Confidentiality. (a) From and after the date\nof this Agreement and until the earlier of the Effective Time or termination of\nthis Agreement, the Company shall, and shall cause its subsidiaries, officers,\ndirectors, employees and agents to, afford to Parent, and to the officers,\nemployees and agents of Parent, reasonable access, during normal business hours,\nto the officers, employees, agents, properties, books, records and contracts of\nthe Company and its subsidiaries, provided that such access shall not\nunreasonably disrupt the Company's business or employees and the Company\nreceives reasonable advance notice of a request for such access.\n\n         (b) Parent and Purchaser each hereby confirms to the Company that the\nconfidentiality agreement dated as of July 15, 1998 by and between Parent and\nthe Company (\"the Confidentiality Agreement\") is in full force and effect.\nPurchaser hereby agrees to be bound by and to comply with the Confidentiality\nAgreement to the same extent as Parent is bound thereby, and Parent and\nPurchaser each agrees that it will cause the affiliates of Parent\n\n                                     - 30 -\n\n\n   35\n\n\n\nand Purchaser to be bound by and to comply with that Agreement to the same\nextent that Parent is bound thereby, and Parent and Purchaser shall cause\nParent's, Purchaser's and such affiliates' officers, employees, agents and\nrepresentatives, including, without limitation, attorneys, accountants,\nconsultants, financial advisers and lenders and their respective counsel to\ncomply therewith as though they were parties thereto.\n\n      6.3.  Filings; Commercially Reasonable Best Efforts. (a) Subject to the\nterms and conditions herein provided, each of the parties hereto agrees to use\nits commercially reasonable best efforts to take, or cause to be taken, all\nactions, and to do, or cause to be done, all things necessary, proper or\nadvisable under applicable laws and regulations or otherwise to consummate and\neffect the transactions contemplated by this Agreement and the Shareholders\nAgreement, including but not limited to (i) determining whether any filings are\nrequired to be made or consents, approvals, waivers, licenses, permits or\nauthorizations are required to be obtained (or, which if not obtained, would\nresult in an event of default, termination or acceleration of any agreement)\nunder any applicable law or regulation or from any governmental entities or\nthird parties, including parties to loan agreements or other debt instruments,\nin connection with the transactions contemplated by this Agreement, including\nthe Merger and the transactions contemplated hereby, (ii) promptly making any\nsuch filings, furnishing information required in connection therewith and timely\nseeking to obtain any such consents, approvals, permits or authorizations, (iii)\nobtaining the necessary approval of this Agreement and the transactions\ncontemplated hereby by the shareholders of the Company, and (iv) doing all\nthings necessary, proper or advisable to remove any injunctions or other\nimpediments or delays, legal or otherwise, to the consummation of the Merger and\nthe other transactions contemplated by this Agreement.\n\n         (b)  In the event Parent elects to engage in a debt offering between\nthe date hereof and the Effective Time, then upon the request of Parent, the\nCompany will use its reasonable best efforts to cause its independent\naccountants to promptly deliver to Parent a consent and letter in form\nreasonably satisfactory to Parent and customary in scope for comfort letters\nwith respect to the Company's financial information included in the debt\noffering memorandum.\n\n         (c)  Notwithstanding the foregoing, none of Parent, Purchaser or the\nCompany shall be obligated to use its commercially reasonable best efforts or\ntake any action pursuant to this Section 6.3 if it determines in good faith,\nbased on the advice of outside legal counsel, that such actions would be in\nbreach of its Board of Directors' fiduciary duties under applicable law.\n\n      6.4.  Public Announcements. Parent, Purchaser and the Company shall\nconsult with each other before issuing any press release or otherwise making any\npublic statements with respect to the Merger, and shall not issue any such press\nrelease or make any such public statement prior to such consultation, except as\nmay be required by law, legal process or any listing agreement with a national\nsecurities exchange.\n\n\n                                     - 31 -\n\n\n   36\n\n\n\n      6.5.  Notification of Certain Matters. The Company, Parent and Purchaser\neach agree to give prompt notice (a \"Default Notice\") to each other at any time\nfrom the date hereof to the Effective Time of the obtaining by it of knowledge\nas to the occurrence, or failure to occur, of any event which occurrence or\nfailure would be likely to cause a breach of any covenant, representation or\nwarranty contained in this Agreement so as to result in a Material Adverse\nEffect or in an Acquiror Material Adverse Effect; provided that delivery of any\nsuch notice pursuant to this Section 6.5 shall not cure such breach or\nnoncompliance or limit or otherwise affect the remedies available hereunder to\nthe party receiving such notice.\n\n      6.6.  Indemnification And Insurance. (a) The Restated Articles of\nIncorporation and By-laws of the Company (and the articles of incorporation and\nBy-laws of the Surviving Corporation after the Effective Time) shall contain the\nprovisions with respect to indemnification set forth in the Restated Articles of\nIncorporation and By-Laws of the Company on the date of this Agreement, which\nprovisions, and the provisions of those certain Indemnification Agreements in\neffect as of the date hereof between the Company and the persons identified on\nSchedule 6.6, shall not be amended, repealed or otherwise modified for a period\nof six years after the Effective Time in any manner that would adversely affect\nthe rights thereunder of any individual who at any time prior to the Effective\nTime was an employee, agent, director or officer of the Company or any of the\nCompany's subsidiaries, together with each such person's heirs, representatives,\nsuccessors and assigns (individually, an \"Indemnified Party\" and collectively\nthe \"Indemnified Parties\") in respect of actions or omissions occurring at or\nprior to the Effective Time (including, without limitation, the transactions\ncontemplated by the Agreement). Parent shall cause the Company (or the Surviving\nCorporation if after the Effective Time) to, and the Company (or the Surviving\nCorporation if after the Effective Time) shall, maintain in effect for not less\nthan six years after the Effective Time the current policies of directors' and\nofficers' liability insurance maintained by the Company and the Company's\nsubsidiaries on the date hereof (provided that the Company may substitute\ntherefor policies having at least substantially the same coverage and containing\nterms and conditions which are no less advantageous in any material respect to\nthe persons currently covered by such policies as insureds) with respect to\nmatters existing or occurring at or prior to the Effective Time ; provided,\nhowever, that if the aggregate annual premiums for such insurance at any time\nduring such period shall exceed 200% of the per annum rate of premium currently\npaid by the Company and its subsidiaries for such insurance on the date of this\nAgreement, then Parent shall cause the Company (or the Surviving Corporation if\nafter the Effective Time) to, and the Company (or the Surviving Corporation if\nafter the Effective Time) shall, provide the maximum coverage that shall then be\navailable at an annual premium equal to 200% of such rate. The Company\nrepresents to Parent that such per annum rate of premium currently paid by the\nCompany and its subsidiaries is approximately $95,000. Without limiting the\nforegoing, in the event any Indemnified Party becomes involved in any capacity\nin any action, proceeding or investigation based in whole or in part on, or\narising in whole or in part out of, any matter, including the transactions\ncontemplated hereby, existing or occurring at or prior to the Effective Time ,\nthen to the extent permitted by law, Parent shall cause the Company (or the\nSurviving Corporation if after the Effective Time) to, and the Company (or the\nSurviving\n\n                                     - 32 -\n\n\n   37\n\n\n\nCorporation if after the Effective Time) shall, periodically advance to such\nIndemnified Party its legal and other expenses (including the cost of any\ninvestigation and preparation incurred in connection therewith), subject to the\nprovision by such Indemnified Party of an undertaking to reimburse the amounts\nso advanced in the event of a final determination by a court of competent\njurisdiction that such Indemnified Party is not entitled thereto. Parent shall\ncause the Company (or the Surviving Corporation if after the Effective Time) to,\nand the Company (or the Surviving Corporation if after the Effective Time)\nshall, pay all expenses, including attorneys' fees, that may be incurred by any\nIndemnified Party in enforcing the indemnity and other obligations provided for\nin this Section 6.6.\n\n         (b) The provisions of this Section 6.6 are intended for the benefit of,\nand shall be enforceable by, the respective Indemnified Parties and shall be\nbinding on all successors and assigns of Parent, Purchaser, the Company and the\nSurviving Corporation.\n\n      6.7.  Solicitation. (a) The Company (and its subsidiaries and affiliates)\nwill not, and the Company (and its subsidiaries and affiliates) will use their\nreasonable best efforts to ensure that their respective directors, officers,\nemployees, representatives and agents do not, directly or indirectly, solicit or\ninitiate inquiries or proposals from, or provide any confidential information\nto, or participate in any discussions or negotiations with, any person or entity\n(other than Parent and its subsidiaries and their respective directors,\nofficers, employees, representatives and agents) concerning (i) any merger, sale\nof assets not in the ordinary course (except for any sale of assets otherwise\npermitted under the terms of this Agreement), or other similar transaction\ninvolving the Company or any subsidiary or division of the Company, or the sale\nof any equity interest in the Company or any subsidiary, or (ii) any sale by the\nCompany or its subsidiaries of authorized but unissued Shares or of any shares\n(whether or not outstanding) of any of the Company's subsidiaries (all such\ninquiries and proposals being referred to herein as \"Acquisition Proposals\"),\nprovided, however, that nothing contained in this Section 6.7 shall prohibit the\nCompany or its Board of Directors from (i) subject to the provisions of Section\n6.4, issuing a press release, filing any report, proxy statement or other\ndocument with the Commission pursuant to the Exchange Act or otherwise publicly\ndisclosing the terms of this Agreement, including, without limitation, this\nSection 6.7; (ii) proceeding with the transactions contemplated by this\nAgreement; or (iii) communicating to the Company's shareholders a position as\ncontemplated by Rule 14e-2 promulgated under the Exchange Act; and, provided,\nfurther, that the Board of Directors of the Company may, on behalf of the\nCompany, furnish or cause to be furnished information and may direct the\nCompany, its directors, officers, employees, representatives or agents to\nfurnish information, in each case pursuant to appropriate confidentiality\nagreements, and to participate in discussions or negotiations with any person or\nentity concerning any Acquisition Proposal which was not solicited by the\nCompany or any of its subsidiaries or affiliates or any of their respective\ndirectors, officers, employees, representatives or agents, or which did not\notherwise result from a breach of this Section 6.7, if (x) the Board of\nDirectors of the Company shall conclude in good faith, after consultation with\nits financial advisor, that such person or entity has made a bona fide\nAcquisition Proposal for a transaction more favorable to the Company's\nshareholders from a financial point of view than\n\n                                     - 33 -\n\n\n   38\n\n\n\nthe transactions contemplated hereby, and (y), in the opinion of the Board of\nDirectors of the Company, only after receipt of advice from independent legal\ncounsel to the Company, the failure to provide such information or access or to\nengage in such discussions or negotiations would cause the Board of Directors of\nthe Company to violate its fiduciary duties to the Company's shareholders under\napplicable law (an Acquisition Proposal which satisfies clauses (x) and (y)\nbeing referred to herein as a \"Superior Proposal\"). The Company will immediately\nnotify Parent of the terms of any proposal, discussion, negotiation or inquiry\n(and will disclose any written materials received by the Company in connection\nwith such proposal, discussion negotiation, or inquiry) and the identity of the\nparty making such proposal or inquiry which it may receive in respect of any\nsuch transaction. The Company shall, and shall cause each subsidiary to,\nimmediately cease and cause to be terminated any existing activities,\ndiscussions or negotiations by the Company, any subsidiary of the Company or any\nofficer, director or employee of, or investment banker, attorney, accountant or\nother advisor or representative of, the Company or any subsidiary with parties\nconducted heretofore with respect to any of the foregoing.\n\n         (b) Except as set forth herein, neither the Board of Directors of the\nCompany nor any committee thereof shall (i) withdraw or modify, or propose to\nwithdraw or modify, in a manner adverse to Parent or the Purchaser, the approval\nor recommendation by the Board of Directors of the Company or any such committee\nof this Agreement or the Merger, (ii) approve or recommend, or propose to\napprove or recommend, any Acquisition Proposal, or (iii) enter into any\nagreement with respect to any Acquisition Proposal. Notwithstanding the\nforegoing, the Board of Directors of the Company may (subject to the terms of\nthis and the following sentence) withdraw or modify its approval or\nrecommendation of this Agreement or the Merger, approve or recommend a Superior\nProposal or enter into an agreement with respect to a Superior Proposal at any\ntime after the second business day following Parent's receipt of written notice\nadvising Parent that the Board of Directors of the Company has received a\nSuperior Proposal, specifying the material terms and conditions of such Superior\nProposal and identifying the person making such Superior Proposal; provided that\nthe Company shall not enter into an agreement with respect to a Superior\nProposal unless the Company shall have furnished Parent with written notice not\nlater than noon (Chicago time) two business days in advance of any date that it\nintends to enter into such agreement and shall have caused its financial and\nlegal advisors to negotiate with Parent to make such amendments to the terms and\nconditions of this Agreement as would make this Agreement as so amended at least\nas favorable to the Company's shareholders from a financial point of view as the\nSuperior Proposal (without taking into account Parent's option to purchase\nShares beneficially owned by certain shareholders of the Company pursuant to the\nShareholders Agreement); provided further that the Company shall not be required\nto make such amendments if the Board of Directors in good faith determines that\nthe transactions contemplated by this Agreement as so amended are not reasonably\ncapable of being consummated. In addition, if the Company enters into an\nagreement with respect to any Acquisition Proposal, it shall concurrently with\nentering into such agreement pay, or cause to be paid, to Parent the Termination\nAmount (as defined in Section 9.2) subject to the provisions of Section 9.2.\n\n                                     - 34 -\n\n\n   39\n\n\n\n\n      6.8.  Supplemental Executive Retirement Plan Funding. Immediately prior to\nthe Closing, the Company (a) shall fund fully the obligations under the\nCompany's Supplemental Executive Retirement Plan (the \"SERP\"), and (b) shall\nexecute and deliver the amendment to the SERP, the amendment to the Supplemental\nExecutive Retirement Plan II and the indemnification agreement in the form\npreviously delivered to Parent.\n\n      6.9.  TMI Letter Agreement. The letter agreement dated June 2, 1998\nbetween TMI Acquisition Corp. and the Company, as amended and supplemented to\ndate (the \"TMI Letter\") hereby is terminated and is of no further force or\neffect. Each of Parent and Purchaser jointly and severally agrees to indemnify\nand hold harmless the Company and its subsidiaries and their respective\ndirectors, officers, employees, representatives, agents and attorneys from,\nagainst and in respect of any and all damages, liabilities, losses, obligations\nand reasonable costs and expenses (including reasonable attorneys' fees and\nexpenses) arising out of any claim, action or proceeding by TMI Acquisition\nCorp. or any of its current or former shareholders, officers, directors,\nemployees, representatives, agents, attorneys or any other person or entity that\nhas any financial or other interests arising out of or based upon the TMI\nLetter.\n\n\n                                  ARTICLE VII.\n\n                              CONDITIONS PRECEDENT\n\n      7.1.  Conditions To Each Party's Obligation To Effect The Merger. The\nrespective obligation of each party to effect the Merger is subject to the\nsatisfaction or waiver in writing on or prior to the Closing on the Closing Date\nof the following conditions:\n\n      (a) Company Shareholder Approval.  The Company Shareholder Approval shall\nhave been obtained.\n\n      (b) Antitrust. The waiting periods (and any extensions thereof) applicable\nto the Merger under the HSR Act shall have been terminated or shall have expired\nand, if applicable, the waiting periods (and any extensions thereof) applicable\nto the transactions contemplated by this Agreement under the HSR Act shall have\nbeen terminated or shall have expired.\n\n      (c) Statutes. No statute, rule, order, decree or regulation shall have\nbeen enacted or promulgated by any domestic government or any governmental\nagency or authority of competent jurisdiction which prohibits the consummation\nof the Merger or the transactions contemplated hereby or the performance of this\nAgreement.\n\n      (d) Violation of Law. Consummation of the Merger shall not result in\nviolation of any applicable United States federal or state law.\n\n\n                                     - 35 -\n\n\n   40\n\n\n\n      (e)  Litigation. No preliminary or permanent injunction, decree or other\norder issued by any federal or state court of competent jurisdiction in the\nUnited States preventing the consummation of the Merger or the transactions\ncontemplated hereby or the performance of this Agreement shall be in effect;\nprovided, however, that the parties hereto shall use their reasonable best\nefforts to have any such injunction or order vacated.\n\n      7.2.  Conditions To Obligations Of Parent.  The obligations of Parent to\neffect the Merger are further subject to the following conditions:\n\n      (a)  Representations And Warranties. The representations and warranties of\nthe Company set forth in this Agreement shall be true and correct in each case\nas of the date of this Agreement and (except to the extent such representations\nand warranties speak as of an earlier date) as of the Closing as though made on\nthe Closing Date and as of the Closing, except where the failure of such\nrepresentations and warranties to be so true and correct (without giving effect\nto any limitation as to \"materiality\" or \"Material Adverse Effect\" set forth\ntherein) would not reasonably be expected to have a Material Adverse Effect.\n\n      (b)  Performance Of Obligations Of The Company. The Company shall have\nperformed the obligations required to be performed by it under this Agreement at\nor prior to the Closing (except for such failures to perform as have not had a\nMaterial Adverse Effect), and Parent shall have received a certificate signed on\nbehalf of the Company by the Chief Executive Officer and the Chief Financial\nOfficer of the Company to such effect, to their best knowledge.\n\n      (c)  No Litigation. There shall not be instituted or pending any suit,\naction or proceeding (having a substantial likelihood of success) against\nParent, Purchaser, the Company or any subsidiary of the Company (i) challenging\nthe acquisition by Parent or Purchaser of any Shares, seeking to restrain or\nprohibit the consummation of the Merger or any of the other transactions\ncontemplated by this Agreement or the performance of this Agreement or seeking\nto obtain from the Company, Parent or Purchaser any damages that are material in\nrelation to the Company and its subsidiaries taken as a whole, (ii) seeking to\nprohibit or limit the ownership or operation by the Company, Parent or any of\ntheir respective subsidiaries of any material portion of the business or assets\nof the Company, Parent or any of the respective subsidiaries or to compel the\nCompany, Parent or any of their respective subsidiaries to dispose of or hold\nseparate any material portion of the business or assets of the Company or Parent\nand their respective subsidiaries, in each case taken as a whole, (iii) seeking\nto impose material limitations on the ability of Parent or Purchaser to acquire\nor hold, or exercise full rights of ownership of, the shares of capital stock of\nthe Surviving Corporation, including the right to vote such capital stock on all\nmatters properly presented to the stockholders of the Surviving Corporation,\n(iv) seeking to prohibit or impose material limitations on the ability of Parent\nto effectively control in any material respect the business or operations of the\nCompany or its subsidiaries or (v) which otherwise is reasonably likely to have\na Material Adverse Effect.\n\n\n                                     - 36 -\n\n\n   41\n\n\n\n         (d)  Statutes. There shall not be any statute, rule, regulation,\njudgment, order or injunction enacted, entered, enforced, promulgated, or deemed\napplicable, pursuant to an authoritative interpretation by or on behalf of a\ngovernmental entity, to the Merger, or any other action shall be taken by any\ngovernmental entity, other than the application or the Merger of applicable\nwaiting periods under HSR Act or any other applicable foreign law, that is\nsubstantially likely to result, directly or indirectly, in any of the\nconsequences referred to in clauses (i) through (v) of Section 7.2(c) above.\n\n         (e)  Dissenters Rights. The Company shall not have received notice of\nthe intent of shareholders of the Company holding an aggregate of 7.5% or more\nof the outstanding Shares to object to the Merger and exercise appraisal rights\npursuant to the MBCL in respect of the Merger.\n\n         (f)  Shareholders Agreement. If Parent shall have exercised the\nAcquiror Option (as defined in the Shareholders Agreement), the closing of the\npurchase of Shares pursuant to the Acquiror Option shall have been consummated.\n\n      7.3.  Conditions To Obligation Of The Company.  The obligation of the\nCompany to effect the Merger is further subject to the following conditions:\n\n              (a) Representations And Warranties. The representations and\nwarranties of Parent and Purchaser set forth in this Agreement shall be true and\ncorrect, in each case as of the date of this Agreement and (except to the extent\nsuch representations and warranties speak as of an earlier date) as of the\nClosing as though made on the Closing Date and as of the Closing, except where\nthe failure of such representations and warranties to be so true and correct\n(without giving effect to any limitation as to \"materiality\" or \"material\nadverse effect\" set forth therein) would not reasonably be expected to adversely\naffect the ability of Parent to consummate the Merger and the transactions\ncontemplated hereby or to perform this Agreement.\n\n              (b) Performance Of Obligations Of Parent. Parent shall have\nperformed the obligations required to be performed by it under this Agreement at\nor prior to the Closing Date (except for such failures to perform as have not\nhad a material adverse effect on the ability of Parent to consummate the Merger\nand the transactions contemplated hereby or to perform this Agreement).\n\n\n                                 ARTICLE VIII.\n\n                       TERMINATION, AMENDMENT AND WAIVER\n\n      8.1.  Termination. This Agreement may be terminated and abandoned at any\ntime prior to the Effective Time, whether before or after approval of matters\npresented in connection with the Merger by the shareholders of the Company:\n\n                                     - 37 -\n\n\n   42\n\n\n\n\n         (a)  by mutual written consent of Parent and the Company; or\n\n         (b)  by either Parent or the Company if any governmental body or\nregulatory authority of the United States of America or any state thereof shall\nhave issued an order, decree or ruling or taken any other action, in each case\npermanently enjoining, restraining or otherwise prohibiting the Merger and such\norder, decree, ruling or other action shall have become final and\nnon-appealable; provided that the right to terminate this Agreement pursuant to\nthis Section 8.1(b) shall not be available to any party that has breached any of\nits material agreements or obligations under Section 6.3; or\n\n         (c)  by either Parent or the Company if the Merger shall not have been\nconsummated on or before March 31, 1999 (other than due to the failure of the\nparty seeking to terminate this Agreement) to perform its material obligations\nunder this Agreement required to be performed at or prior to the Effective\nTime); or\n\n         (d)  by either Parent or the Company if at the duly held meeting of the\nshareholders of the Company (including any adjournment thereof) held for the\npurpose of voting on the Merger, this Agreement and the consummation of the\ntransactions contemplated hereby, the holders at least two-thirds of the\noutstanding Shares shall not have approved the Merger, this Agreement and the\nconsummation of the transactions contemplated hereby; or\n\n         (e)  by the Board of Directors of Parent, (i) if the Company shall have\nbreached any of its representations and warranties or failed to comply with any\nof the covenants or agreements (without, in each instance, giving effect to any\nlimitation as to \"materiality\" or \"material adverse effect\" set forth therein)\ncontained in this Agreement to be complied with or performed by the Company at\nor prior to consummation of the Merger and such breach or failure shall have\nresulted in a Material Adverse Effect and shall not have been cured within 20\nbusiness days following receipt by the Company of notice of such breach or\nfailure, or (ii) the Company shall have received from a third party a bona fide\nAcquisition Proposal, and the Board of Directors of the Company, shall have\naccepted such a proposal or (iii) the Board of Directors of the Company shall\nhave failed to recommend to the Company Shareholders that they give the Company\nShareholder Approval or shall have withdrawn or modified in a manner adverse to\nParent or Purchaser its approval or recommendation with respect to the Merger,\nor\n\n         (f)  by the Board of Directors of the Company, if (i) Parent or\nPurchaser shall have breached any of its representations and warranties or\nfailed to comply with any of the covenants or agreements (without, in each\ninstance, giving effect to any limitation as to \"materiality\" or \"material\nadverse effect\" set forth therein) contained in this Agreement to be complied\nwith or performed by Parent or Purchaser at or prior to consummation of the\nMerger and such breach or failure shall have resulted in an Acquiror Material\nAdverse Effect and shall not have been cured within 20 business days following\nreceipt by the breaching party of notice of such breach or failure, or (ii) if\nthe Company\n\n                                     - 38 -\n\n\n   43\n\n\n\nenters into a written agreement concerning a transaction that constitutes a\nSuperior Proposal, provided that the Company shall have complied with the\nprovisions of Section 6.7(a) and (b) hereof (including the payment of the\nTermination Amount).\n\n      8.2.  Effect Of Termination. In the event of termination of this Agreement\nby either the Company or Parent as provided in Section 8.1, no party hereto (or\nany of its directors, officers, employees, agents, legal and financial advisors\nor other representatives) shall have any liability or further obligation to any\nother party to this Agreement, except as provided in this Section 8.1 and\nSections 6.2(b), 9.1 and 9.2 of this Agreement, and except that nothing herein\nwill relieve any party from liability for its breach of this Agreement.\n\n\n                                  ARTICLE IX.\n\n                               GENERAL PROVISIONS\n\n      9.1.  Nonsurvival Of Representations And Warranties. The representations\nand warranties in this Agreement or in any instrument delivered pursuant to this\nAgreement shall expire with, and be terminated and extinguished upon,\nconsummation of the Merger. This Section 9.1 have no effect upon any other\nobligation of the parties hereto, whether to be performed before or after the\nEffective Time. The Confidentiality Agreement shall survive the termination of\nthis Agreement and the provisions of such Confidentiality Agreement shall apply\nto all information and material delivered by any party hereunder.\n\n      9.2.  Payment Of Certain Fees and Expenses. (a) All costs and expenses\nincurred in connection with this Agreement and the transactions contemplated\nhereby and thereby shall be paid by the party incurring such expenses.\n\n            (b)  Notwithstanding the foregoing, if this Agreement is terminated\npursuant to Section 8.1(d), 8.1(e)(ii) or (iii) or 8.1(f)(ii) hereof, then the\nCompany shall pay to Parent (i) concurrently with such termination, an amount\nequal to U.S. $2.0 million (the \"Termination Fee\"), plus (ii) promptly, but in\nno event later than two days after being furnished documentation in respect\nthereto by Parent (\"Documentation\"), Parent's or its affiliates' out-of-pocket\nfees and expenses (including legal, investment banking, financing commitment\nfees, and commercial banking fees and expenses) actually incurred in connection\nwith the Merger, due diligence investigation, the negotiation and execution of\nthis Agreement and the transactions contemplated hereby in an amount not to\nexceed $750,000 in the aggregate (the \"Termination Expenses\"), and together with\nthe Termination Fee, the \"Termination Amount\"). Any payments required to be made\npursuant to this Section shall be made by wire transfer of same day funds to an\naccount designated by Parent.\n\n      9.3.  Notices. All notices and other communications hereunder shall be in\nwriting and shall be deemed to have been duly given; as of the date of delivery,\nif delivered personally; upon receipt of confirmation, if telecopied or upon the\nnext business day when\n\n                                     - 39 -\n\n\n   44\n\n\n\ndelivered during normal business hours to an overnight courier service, such as\nFederal Express, in each case to the parties at the following addresses or at\nsuch other addresses as shall be specified by the parties by like notice; unless\nthe sending party has knowledge that such notice or other communication\nhereunder was not received by the intended recipient:\n\n                    (a)  If to Parent or Purchaser:\n\n                         Salton\/Maxim Housewares, Inc.\n                         550 Business Center Drive\n                         Mount Prospect, Illinois  60056\n                         Attention:  Chairman\n                         Telecopy:  (847) 803-8080\n\n                         with a copy to:\n\n                         Sonnenschein Nath &amp; Rosenthal\n                         8000 Sears Tower\n                         Chicago, Illinois  60606\n                         Attention:  Neal Aizenstein, esq.\n                         Telecopy:  (312) 876-7934\n\n                         If to the Company:\n\n                         Toastmaster Inc.\n                         1801 North Stadium Boulevard\n                         Columbia, Missouri  65202\n                         Attention:  Chairman\n                         Telecopy:  (573) 446-5646\n\n                         with a copy to:\n\n                         Stinson, Mag &amp; Fizzell P.C.\n                         1201 Walnut Street\n                         Kansas City, Missouri  64106\n                         Attention:  John A. Granda\n                         Telecopy:  (816) 641-3495\n\n      9.4.  Certain Definitions; Interpretation. (a) When a reference is made in\nthis Agreement to subsidiaries of Parent, Purchaser or the Company, the word\n\"subsidiaries\" means any corporation 50 percent or more of whose outstanding\nvoting securities, or any partnership, joint venture or other entity 50 percent\nor more of whose total equity interest, is directly or indirectly owned by\nParent, Purchaser or the Company, as the case may be. As used in this Agreement,\nthe term \"affiliate(s)\" shall have the meaning set forth in Rule 12b-2 under the\nExchange Act and the term \"knowledge\" means the actual knowledge of any of the\n\n                                     - 40 -\n\n\n   45\n\n\n\nexecutive officers of the parties and, with respect to Section 3.9 and Section\n3.12, the actual knowledge of the most senior officer or employee in charge of\nemployee benefit and environmental matters, respectively, in each cause with the\nrequirement of due inquiry but without any attribution of knowledge from any\nother person.\n\n         (b)   References to \"includes\" and \"including\" mean \"includes without\nlimitation\" and \"including without limitation.\n\n         (c)   No provision of this Agreement or the Shareholders Agreement\nshall be interpreted in favor of, or against, any of the parties by reason of\nthe extent to which any such party or its counsel participated in the drafting\nthereof or by reason of the extent to which any such provision is inconsistent\nwith any prior draft hereof or thereof.\n\n      9.5.  Entire Agreement. This Agreement (including the Schedules and the\nexhibits hereto), the Shareholders Agreement and the Confidentiality Agreement\ncontain the entire agreement between the parties with respect to the\ntransactions contemplated hereby, and supersedes all written or oral\nnegotiations, representations, warranties, commitments, offers, bids, bid\nsolicitations, and other understandings prior to the date hereof, including,\nwithout limitation, the letter agreement dated June 2, 1998 between TMI\nAcquisition Corp and the Company.\n\n      9.6.  Counterparts.  This Agreement may be executed in two or more\ncounterparts, each of which shall be deemed an original, but all of which\ntogether shall constitute one and the same instrument.\n\n      9.7.  Severability.  If any term or provision of this Agreement or the\nShareholders Agreement or the application thereof to either party or set of\ncircumstances shall, in any jurisdiction and to any extent, be finally held\ninvalid or unenforceable, such term or provision shall only be ineffective as to\nsuch jurisdiction, and only to the extent of such invalidity or\nunenforceability, without invalidating or rendering unenforceable any other\nterms or provisions of this Agreement or the Shareholders Agreement under any\nother circumstances, and the parties shall negotiate in good faith a substitute\nprovision which comes as close as possible to the invalidated or unenforceable\nterm or provision, and which puts each party in a position as nearly comparable\nas possible to the position it would have been in but for the finding of\ninvalidity or unenforceability, while remaining valid and enforceable.\n\n      9.8.  Captions.  The captions of the various Articles and Sections of this\nAgreement have been inserted only for convenience of reference and shall not be\ndeemed to modify, explain, enlarge or restrict any provision of this Agreement\nor affect the construction hereof.\n\n      9.9.  Amendment.  Subject to the applicable provisions of the MBCL, this\nAgreement may be amended by the parties hereto, at any time before or after any\nrequired\n\n                                     - 41 -\n\n\n   46\n\n\n\napproval of matters presented in connection with the Merger by the shareholders\nof the Company; provided, however, that after any such approval, there shall be\nmade no amendment that by law requires further approval by such shareholders\nwithout the further approval of such shareholders. This Agreement may not be\namended except by an instrument in writing signed by the parties hereto.\n\n      9.10. Waiver. Subject to the applicable provisions of the MBCL, at any\ntime prior to the Effective Time, any party hereto may (a) extend the time for\nthe performance of any of the obligations or other acts of the other parties\nhereto, or (b) subject to the proviso of Section 9.9, waive compliance with any\nof the agreements or conditions contained herein. At any time prior to\nconsummation of the Merger any party hereto may waive any inaccuracies in the\nrepresentations and warranties contained herein or in any documents delivered\npursuant hereto. Any agreement on the part of a party hereto to any such\nextension or waiver shall be valid only if set forth in an instrument in writing\nsigned by such party. Except as otherwise provided in this Agreement, neither\nthe failure nor any delay by a any party in exercising any right, power or\nprivilege under this Agreement or the document referred to in this Agreement or\ntherein will operate as a waiver of such right, power, or privilege, and no\nsingle or partial exercise of any such right, power or privilege will preclude\nany other or further exercise of such right, power or privilege or the exercise\nof any other right, power or privilege.\n\n      9.11. No Third-Party Beneficiaries; Assignability. Except for Sections\n2.2, 2.3 and 6.6 (which are intended for the benefit of, and may be enforced by,\nthe persons or entities specified therein), this Agreement is not intended to\nconfer or impose upon any person not a party hereto any rights, remedies,\nobligations or liabilities hereunder. This Agreement shall not be assigned by\nany party hereto, by operation of law or otherwise. Subject to the preceding two\nsentences, this Agreement will be binding upon, inure to the benefit of, and be\nenforceable by, the parties and their respective successors and assigns.\n\n      9.12. Inclusion of Information in Schedules. The inclusion of any\ninformation in any disclosure schedule (i) shall not be deemed an admission that\nany such information is material for purposes of the representation and warranty\nto which it relates or any other representation and warranty or for any other\npurpose related to the Agreement or the transactions contemplated hereby,\nincluding, without limitation, for purposes of any covenants, closing conditions\nor any other remedies the parties may have, and (ii) shall not be used or\ninterpreted in any manner to create a standard of materiality for any such\npurpose.\n\n      9.13. Exclusive Jurisdiction and Consent to Service of Process. The\nparties agree that any action arising out of or relating to this Agreement or\nthe transactions contemplated hereby shall be brought by the parties only in a\nMissouri state court or a federal court sitting in that state, which shall be\nthe exclusive venue of any such action. Each party waives any objection which\nsuch party may now or hereafter have to the laying of venue of any such action,\nand irrevocably consents and submits to the jurisdiction of any such court (and\nthe\n\n                                     - 42 -\n\n\n   47\n\n\n\nappropriate appellate courts) in any such action. Any and all service of process\nand any other notice in any such action shall be effective against such party\nwhen transmitted in accordance with Section 9.3. Nothing contained herein shall\nbe deemed to affect the right of any party to serve process in any manner\npermitted by law.\n\n      9.14. Waiver of Jury Trial. THE COMPANY, PARENT AND PURCHASER HEREBY\nIRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT THAT THEY MAY HAVE TO A TRIAL BY\nJURY IN ANY ACTION INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER\nSOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO,\nOR CONNECTED WITH THIS AGREEMENT OR THE RELATIONSHIP ESTABLISHED HEREUNDER.\n\n      9.15. Governing Law. The validity, interpretation and effect of this\nAgreement shall be governed exclusively by the laws of the State of Missouri,\nwithout giving effect to the principles of conflict of laws thereof.\n\n      IN WITNESS WHEREOF, Parent, Purchaser and the Company have caused this\nAgreement to be executed as of the date first written above by their respective\nofficers thereunder duly authorized.\n\n\n                                             SALTON\/MAXIM HOUSEWARES, INC.\n\n\n                                             By:  _____________________________\n                                             Title: Chairman and Chief\n                                                    Executive Officer\n\n\n                                             COLUMBIA ACQUISITION CORP.\n\n\n                                             By:  _____________________________\n                                             Title: President\n\n\n\n                                             TOASTMASTER INC.\n\n\n                                             By:  _____________________________\n                                             Title: President\n\n                                     - 43 -\n\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[8750],"corporate_contracts_industries":[9393],"corporate_contracts_types":[9622,9626],"class_list":["post-43110","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-salton-inc","corporate_contracts_industries-consumer__appliances","corporate_contracts_types-planning","corporate_contracts_types-planning__merger"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43110","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts"}],"about":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/types\/corporate_contracts"}],"wp:attachment":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/media?parent=43110"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43110"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43110"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43110"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}