{"id":43942,"date":"2015-09-17T11:25:58","date_gmt":"2015-09-17T16:25:58","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-legal\/contracts\/uncategorized\/stockholder-agreement-salton-maxim-housewares-inc-and.html"},"modified":"2015-09-17T11:25:58","modified_gmt":"2015-09-17T16:25:58","slug":"stockholder-agreement-salton-maxim-housewares-inc-and","status":"publish","type":"corporate_contracts","link":"https:\/\/corporate.findlaw.com\/contracts\/securities\/stockholder-agreement-salton-maxim-housewares-inc-and.html","title":{"rendered":"Stockholder Agreement &#8211; Salton\/Maxim Housewares inc. and Windmere-Durable Holdings Inc."},"content":{"rendered":"<pre>\n                             STOCKHOLDER AGREEMENT\n\n                           DATED AS OF July 11, 1996\n\n                                 BY AND BETWEEN\n\n                         SALTON\/MAXIM HOUSEWARES, INC.\n\n                                      AND\n\n                        WINDMERE-DURABLE HOLDINGS, INC.\n\n\n\n\n\n\n                             STOCKHOLDER AGREEMENT\n\n         This Stockholder Agreement (this 'Agreement') is entered into as of\nJuly 11, 1996 by and between Salton\/Maxim Housewares, Inc., a Delaware\ncorporation (the 'Company'), and Windmere-Durable Holdings, Inc., a Florida\ncorporation (the 'Purchaser').\n\n         A.      The Purchaser and the Company have entered into that certain\nStock Purchase Agreement dated as of February 27, 1996, (the 'Stock Purchase\nAgreement') pursuant to which the Purchaser is acquiring certain shares of the\nCommon Stock of the Company, par value $.01 per share (the 'Common Stock').\n\n         B.      As a result of the transactions contemplated by the Stock\nPurchase Agreement, the Purchaser will be a significant stockholder of the\nCompany.\n\n         C.      It is a condition to the transactions contemplated by the\nStock Purchase Agreement and the desire of the Purchaser and the Company that\nthis Agreement be entered into to establish certain terms and conditions\nconcerning the Purchaser's investment in the Company and the Company's\ncorporate governance.\n\n         NOW, THEREFORE, in consideration of the foregoing premises and the\nrepresentations, warranties, and covenants set forth in this Agreement, the\nPurchaser and the Company hereby agree as follows:\n\n\n                                   ARTICLE 1.\n                                  DEFINITIONS\n\n         Capitalized terms used in this Agreement and not otherwise defined\nherein shall have the respective meanings set forth below.\n\n         'AFFILIATE' of a party means any person or entity controlling,\ncontrolled by, or under common control with, such party.  For purposes of this\ndefinition, 'control' (including, with correlative meanings, the terms\n'controlling,' 'controlled by' and 'under common control with'), as used with\nrespect to any person, shall mean the possession, directly or indirectly, of\nthe power to direct or cause the direction of the management or policies of\nsuch person, whether through the ownership of voting securities, by agreement\nor otherwise.\n\n         'BENEFICIALLY OWNED' shall have the meaning provided in Rule 13d-3\nunder the Exchange Act.\n\n         'BOARD' means the Board of Directors of the Company.\n\n         'BROKERS' TRANSACTIONS' means brokers' transactions within the meaning\nof Rule 144 of the Securities Act, or any successor rule.\n\n\n\n         'COMMERCIAL AGREEMENTS' means those certain agreements between the\nCompany and the Purchaser relating to various commercial relationships as\ncontemplated by the Stock Purchase Agreement and entered into prior to the date\nhereof.                         .\n\n         'COMMISSION' means the Securities and Exchange Commission.\n\n         'CONFIDENTIALITY AGREEMENTS' means those certain Confidentiality\nAgreements between the Purchaser and the Company, each dated January 15, 1996.\n\n         'DIRECTOR' means a member of the Board.\n\n         'EQUITY SECURITY' means Voting Stock and any options, warrants,\nconvertible securities, or other rights to acquire Voting Stock.\n\n         'EXCHANGE ACT' means the Securities Exchange Act of 1934, as amended.\n\n         'GUARANTY' means that certain Guaranty between all of the Purchaser's\ndomestic subsidiaries and the Company.\n\n         'INDEPENDENT DIRECTOR' means a Director who is not (apart from such\ndirectorship) an Affiliate, officer, employee, agent, holder of 5% or more of\nthe voting securities, consultant or partner of the Purchaser or the Company or\nany Affiliate of either of them or of any entity that was dependent on the\nPurchaser or the Company or any Affiliate of either of them for more than five\npercent (5%) of its revenues or earnings in its most recent fiscal year.\n\n         'LAPSE EVENT' means the sale, transfer or other disposition by\nLeonhard Dreimann or David Sabin of more than an aggregate of 450,000 shares of\nCommon Stock Beneficially Owned by such persons; provided, however that a Lapse\nEvent shall not occur upon (i) any pro rata distribution by Dominator Investors\nGroup of shares of Common Stock to its stockholders; (ii) any sale, transfer or\nother disposition of shares of Common Stock to any person or entity if the\nshares held by such person or entity are Beneficially Owned by Leonhard\nDreimann or David Sabin; or (iii) any sale, transfer or other disposition of\nshares of Common Stock Beneficially Owned by Leonhard Dreimann or David Sabin\nupon such person's death to such person's heirs, executors, legal\nrepresentatives or trustees.\n\n         'NOTE' means that certain promissory note due on the fifth anniversary\nof the date hereof, issued by the Purchaser to the Company in the principal\namount of $10,847,620.\n\n\n\n\n\n                                      -2-\n\n\n         'PUBLIC OFFERING' means an underwritten public offering of securities\nof the Company pursuant to an effective registration statement under the\nSecurities Act.\n\n         'PURCHASER INTEREST' means, as of any date, the percentage of the\nTotal Voting Power Beneficially Owned by the Purchaser and its Affiliates on\nsuch date.\n\n         'REGISTRATION RIGHTS AGREEMENT' means that certain Registration Rights\nAgreement between the Purchaser and the Company dated the date hereof.\n\n         'SECURITIES ACT' means the Securities Act of 1933, as amended.\n\n         'SECURITY AGREEMENTS' means those certain Security Agreements between\nthe Purchaser and its domestic subsidiaries, on the one hand, and the Company,\non the other hand, dated the date hereof.\n\n         'STANDSTILL PERIOD' means the period of three years after the date\nhereof.\n\n         'THIRD PARTY' means any person (including a 'person' as defined in\nSection 13(d)(3) of the Exchange Act) or entity other than the Purchaser, any\nAffiliate of the Purchaser or any group including the Purchaser or any of its\nAffiliates.\n\n         'TOTAL VOTING POWER' means, at any date, the total number of votes\nthat may be cast in the election of directors of the Company at any meeting of\nstockholders of the Company held on such date assuming all shares of Voting\nStock were present and voted at such meeting, other than votes that may be cast\nonly by one class or series of stock (other than Common Stock) or upon the\nhappening of a contingency.\n\n         'TRANSACTION DOCUMENTS' means this Agreement, the Stock Purchase\nAgreement, the Note, the Security Agreements, the Guaranty, the Registration\nRights Agreement, the Commercial Agreements, amendments thereof, and all\nschedules and exhibits hereto and thereto.\n\n         'VOTING STOCK' means Common Stock and all other securities of the\nCompany, if any, entitled to vote generally in the election of Directors.\n\n\n                                   ARTICLE 2.\n                             ACQUISITION OF SHARES\n\n         2.1.    STANDSTILL.  From the date hereof until the end of the\nStandstill Period, neither the Purchaser nor any of its\n\n\n\n\n\n                                      -3-\n\n\nAffiliates shall directly or indirectly acquire or offer to acquire Beneficial\nOwnership of any Equity Securities or interest therein except as set forth in\nSections 2.1.1, 2.1.2, 2.1.3 and 2.1.4.\n\n                 2.1.1. Purchase Right Upon Option Exercises.  The Purchaser\nshall have the right to purchase shares of Voting Stock pursuant to the option\nset forth in Section 1.01 of the Stock Purchase Agreement.\n\n\n                 2.1.2.  Purchases to Restore Previous Purchaser Interest.\nFrom and after the date hereof until such time as the Purchaser Interest has\nbeen less than 30% for a period of at least ten (10) consecutive days, in the\nevent at any time or from time to time the number of outstanding shares of\nVoting Stock is increased for any reason through the issuance of additional\nshares (other than through the issuance of shares upon the exercise of stock\noptions outstanding on the date hereof), including, without limitation, upon\nexercise of stock options (granted after the date hereof) or upon conversion or\nexchange of convertible securities, or as consideration for acquisition of any\ncorporation or other entity or business or division thereof, but excluding any\nshares of Voting Stock issued pursuant to stock splits or stock dividends\nissued or distributed proportionately on all outstanding shares of Voting\nStock, then in connection with each such issuance the Purchaser and\/or its\nAffiliates shall have the right, but not the obligation, to purchase in the\nopen market at any available price, up to such number of additional shares of\nVoting Stock as may then be necessary solely as a result of such issuance to\nrestore the Purchaser Interest to the same percentage of the Total Voting Power\nas existed immediately prior to such increase in the number of outstanding\nshares of Voting Stock.  The Company shall notify the Purchaser of, and provide\nthe Purchaser with an accurate and complete description of, any event that has\ncaused the rights of the Purchaser and\/or its Affiliates to acquire or offer to\nacquire Equity Securities under this Section 2.1.2 to become exercisable within\n15 days following the end of each fiscal quarter of the Company.  The purchase\nright set forth in this Section 2.1.2 shall be exercisable at any time and from\ntime to time until 90 days after the Purchaser's receipt of notice of such\nissuance.\n\n                 2.1.3.  Third-Party Offers.  From and after the date hereof\nuntil such time as the Purchaser Interest has been less than 30% for a period\nof at least ten (10) consecutive days, in the event any Third Party shall make\nan offer to acquire a 20% or greater interest in Equity Securities, the\nPurchaser and\/or its Affiliates shall be permitted to make a competing offer,\nand acquire Equity Securities pursuant thereto, subject to and in accordance\nwith the following:\n\n\n\n\n\n                                      -4-\n\n\n                 (a)      If the Third Party offer is approved or recommended\nby a majority vote of the Company Directors (as defined in Section 4.2), then\nthe Purchaser shall have the right to make a competing offer and to acquire\nEquity Securities pursuant to such competing offer, provided that (1) the\ncompeting offer complies with Section 2.1.3(b), (2) the competing offer is made\nprior to the earliest to occur of withdrawal, termination or consummation of\nthe Third Party offer, and (3) if the Third Party offer is withdrawn or\nterminated without being consummated before the Purchaser acquires Equity\nSecurities pursuant to the competing offer, a majority of the Company Directors\ndetermine in good faith that such Third Party offer was withdrawn or terminated\nprimarily as a result of the Purchaser's competing offer having superior terms\nto or a substantially greater likelihood of success than such Third Party\noffer.\n\n                 (b)      Any competing offer by the Purchaser pursuant to this\nSection 2.1.3 shall be, as nearly as possible, for an identical amount of\nsecurities and at a price per share no lower than and on terms no less\nfavorable than are offered by the Third Party.  In the event the consideration\noffered in any Third Party offer shall consist of securities or property other\nthan cash, the competing offer by the Purchaser may in the Purchaser's\ndiscretion be for cash in an amount per share not less than the fair market\nvalue of the consideration offered by the Third Party as determined by a\nmajority of the Company Directors.\n\n                 2.1.4.  Company Directors' Approval.  The Purchaser and\/or its\nAffiliates may purchase Common Stock in any transactions approved by a majority\nof the Company Directors.\n\n                 2.1.5.  ACQUISITIONS AFTER STANDSTILL PERIOD.  After the\nStandstill Period, the Purchaser shall not acquire or offer to acquire any\nEquity Securities if, as the result of or after giving effect to such\nacquisition, the Purchaser Interest (calculated as though Beneficial Ownership\nof Voting Stock includes shares of Voting Stock that the Purchaser has the\nright to acquire (other than pursuant to this Agreement) as described in\nsubsection (d)(1)(i) of Rule 13d-3 under the Exchange Act without regard to the\n60-day limit set forth therein) would exceed the Purchaser Interest (calculated\nin the same manner) as existed on the last day of the Standstill Period, except\npursuant to a tender offer and\/or merger which would result in the Purchaser\nand\/or its Affiliates owning 100% of the Equity Securities.\n\n\n\n\n\n                                      -5-\n\n\n                                   ARTICLE 3.\n                               TRANSFER OF SHARES\n\n         The Purchaser and its Affiliates shall not sell or otherwise transfer\nany Equity Securities Beneficially Owned by such persons or any interest\ntherein, except as follows:\n\n         3.1.  AFFILIATES.  The Purchaser may transfer any or all Equity\nSecurities Beneficially Owned by the Purchaser to an Affiliate of the\nPurchaser.\n\n         3.2.  PUBLIC OFFERINGS AND BROKERS' TRANSACTIONS.  From and after the\nearlier of (i) the third anniversary of the date hereof and (ii) a Lapse Event,\nthe Purchaser and\/or any of its Affiliates may sell any or all Equity\nSecurities Beneficially Owned by such persons in one or more Public Offerings\nor in Brokers' Transactions if the Purchaser and\/or its selling Affiliates\ninvoke and follow or require participating underwriters or brokers to invoke\nand follow appropriate and reasonable procedures (subject to the prior approval\nof a majority of the Company Directors, which shall not be unreasonably\nwithheld) designed to prevent the sale of such Equity Securities to any person\nor 'group' (within the meaning of Section 13(d)(3) of the Exchange Act) that\nwould, after giving effect to its acquisition of such Equity Securities,\nBeneficially Own or have the right to acquire more than seven percent (7%) of\nthe Total Voting Power.\n\n         3.3.  PRIVATE TRANSACTIONS.  From and after the earlier of (i) the\nthird anniversary of the date hereof and (ii) a Lapse Event, the Purchaser\nand\/or any of its Affiliates may sell any or all Equity Securities Beneficially\nOwned by such persons in one or more transactions not requiring registration\nunder the Securities Act provided that such sale is not to any person or\n'group'  (within the meaning of Section 13(d)(3) of the Exchange Act) that\nwould, after giving effect to its acquisition of such Equity Securities,\nBeneficially Own or have the right to acquire more than seven percent (7%) of\nthe Total Voting Power.\n\n         3.4.  COMPANY DIRECTORS' APPROVAL.  The Purchaser and\/or any of its\nAffiliates may sell any or all Equity Securities Beneficially Owned by such\npersons in any transaction or transactions approved by a majority of the\nCompany Directors.\n\n         3.5.  RESTRICTIVE LEGENDS.  A copy of this Agreement shall be filed\nwith the Secretary of the Company and kept with the records of the Company.\nUpon original issuance thereof and until such time as the same is no longer\nrequired hereunder or under any applicable law, any certificate issued\nrepresenting any  shares of Common Stock issued to the Purchaser and all\ncertificates issued upon transfer (except for transfers in accordance with\nSection 3.2) or in exchange or substitution\n\n\n\n\n\n                                      -6-\n\n\ntherefor in accordance with this Article shall bear the following restrictive\nlegend:\n\n         THE SHARES EVIDENCED BY THIS CERTIFICATE HAVE BEEN ACQUIRED FOR\n         INVESTMENT AND HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF\n         1933, AS AMENDED (THE 'ACT'), AND MAY NOT BE OFFERED, SOLD, ASSIGNED,\n         PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF ('TRANSFERRED') UNLESS\n         AND UNTIL REGISTERED UNDER THE ACT OR UNLESS SUCH TRANSFER IS EXEMPT\n         FROM REGISTRATION OR IS OTHERWISE IN COMPLIANCE WITH THE ACT.\n\n         THE TRANSFER OF THE SHARES EVIDENCED BY THIS CERTIFICATE IS SUBJECT TO\n         THE RESTRICTIONS ON TRANSFER PROVIDED FOR IN THE STOCKHOLDER\n         AGREEMENT, DATED JULY 11, 1996, BETWEEN SALTON\/MAXIM HOUSEWARES, INC.\n         AND THE STOCKHOLDER, AS FROM TIME TO TIME IN EFFECT, A COPY OF WHICH\n         IS ON FILE AT THE EXECUTIVE OFFICES OF SALTON\/MAXIM HOUSEWARES, INC.\n         AND WILL BE FURNISHED WITHOUT CHARGE TO THE HOLDER OF SUCH SHARES UPON\n         WRITTEN REQUEST TO SALTON\/MAXIM HOUSEWARES, INC.  NO SUCH TRANSFER\n         WILL BE EFFECTIVE UNLESS AND UNTIL THE TERMS AND CONDITIONS OF SUCH\n         STOCKHOLDERS' AGREEMENT HAVE BEEN COMPLIED WITH IN FULL AND NO PERSON\n         MAY REQUEST SALTON\/MAXIM HOUSEWARES, INC. TO RECORD THE TRANSFER OF\n         ANY SHARES IF SUCH TRANSFER IS IN VIOLATION OF SUCH STOCKHOLDERS'\n         AGREEMENT.\n\n         THE SHARES EVIDENCED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS\n         ON VOTING PROVIDED FOR IN THE STOCKHOLDERS' AGREEMENT AND NO VOTE OF\n         SUCH SHARES THAT CONTRAVENES SUCH AGREEMENT SHALL BE EFFECTIVE.\n\n         The certificates representing shares of Common Stock Beneficially\nOwned by the Purchaser (including, without limitation, all certificates issued\nupon transfer or in exchange thereof or substitution therefor in accordance\nwith this Article) shall also bear any legend required under any other\napplicable laws, including state securities or blue sky laws.  The Company may\nmake a notation on its records or give instructions to any transfer agents or\nregistrars for such shares in order to implement the restrictions on transfer\nset forth in this Article.  The Company shall not incur any liability for any\nrefusal or delay in recognizing any transfer of shares of Common Stock if the\nCompany in good faith reasonably believes that such transfer may have been or\nwould be in violation of the provisions of applicable law or this Agreement.\n\n         3.6.  CONTINUING RESTRICTIONS.  In the event that Purchaser transfers\nany Equity Securities or any interest therein to an Affiliate of the Purchaser\npursuant to Section 3.1, (i) the Purchaser shall notify such Affiliate of the\nprovisions set forth in this Article and Articles 4 and 5 hereof and shall be\n\n\n\n\n\n                                      -7-\n\n\nresponsible for any breach by such Affiliate of those provisions and (ii) so\nlong as any such Equity Securities are Beneficially Owned by such Affiliate,\nthe provisions of this Article shall apply to any sale or transfer of the\ncapital stock or other equity interests of such Affiliate or of the Purchaser\nsuch that the Purchaser and such Affiliates would cease to be Affiliates.  In\nthe event the Purchaser sells any Equity Securities to a person or entity\npursuant to Section 3.3, such person or entity shall enter into an agreement\nwith the Company agreeing to be bound by the provisions of this Article and\nArticles 4 and 5 hereof and succeeding to the registration rights with respect\nto the Equity Securities transferred as provided in the Registration Rights\nAgreement.\n\n\n                                   ARTICLE 4.\n                              BOARD REPRESENTATION\n\n         4.1.  PURCHASER DESIGNEES.\n\n                 4.1.1.  Directors.  At all times and from time to time after\nthe date hereof, the Purchaser shall have the right to designate that number of\nDirectors (the 'Purchaser Directors') which will result in the total number of\nPurchaser Directors being equal to the product (rounded up to the nearest whole\nnumber) of (i) the total number of Directors then on the Board, and (ii) the\nPurchaser Interest at that time; provided that in no event shall the number of\nPurchaser Directors exceed the number of Company Directors at any time (it\nbeing the intent of the parties that upon consummation of the transactions\ncontemplated by the Stock Purchase Agreement, the number of Directors which the\nPurchaser shall be entitled to designate pursuant to this Section 4.1.1 shall\nequal 50% of the total number of Directors then on the Board).\n\n                 4.1.2.  Purchaser Directors.  Any Purchaser Director shall not\nserve as a Director if such person shall be prohibited from serving as a\nDirector under applicable law, including antitrust law.  At least one of the\nPurchaser Directors shall qualify as an independent director in accordance with\nNasdaq National Market rules.\n\n         4.2.  COMPANY DIRECTORS.  At all times and from time to time after the\ndate hereof, the Board shall include at least four (4) Directors who are not\ndesignated by the Purchaser (the 'Company Directors').  The 'Company Directors'\nshall initially be Leonhard Dreimann, David Sabin, Bert Doornmalen and Frank\nDevine; provided that any replacement or additional Company Directors shall be\nelected pursuant to Section 4.5 hereof.  At least one of the Company Directors\nshall qualify as an independent director in accordance with Nasdaq National\nMarket rules.\n\n\n\n\n\n                                      -8-\n\n\n         4.3.  ADDITIONAL AGREEMENTS.\n\n                 4.3.1.  By the Company.  The Company shall from time to time\nuse its best efforts to increase the number of Directors constituting the Board\nand\/or obtain resignations from Directors (other than the Purchaser Directors\nand the Company Directors required by Section 4.2) as may be required to ensure\nthat there will at all times be sufficient Board seats available to accommodate\nthe full number of Directors that the Purchaser is then entitled to designate\npursuant to Section 4.1.  The Company shall promptly and at all times use its\nbest efforts, and take all such actions as may be appropriate for the election\nto the Board of the Purchaser designees selected pursuant to Section 4.1, and\nthe Company Directors.  Such actions shall include, without limitation, the\nsolicitation of proxies for the election of such persons at each regular or\nspecial meeting of stockholders of the Company at which Directors are to be\nelected, or pursuant to any written consent solicited in lieu of such a\nmeeting.\n\n                 4.3.2.  By the Purchaser.  The Purchaser and its Affiliates\nshall vote all Voting Stock Beneficially Owned by them at each regular or\nspecial meeting of the Company's stockholders at which Directors are to be\nelected, or pursuant to any written consent solicited in lieu of such a\nmeeting, in favor of election to the Board, and shall otherwise use their best\nefforts to cause the appointment or election to the Board, and to maintain as\nDirectors the Company Directors, consistently with this Article 4.  If the\nnumber of Directors that the Purchaser is entitled to designate pursuant to\nSection 4.1 is at any time and for any reason (including, without limitation,\nthe resignation or removal of any Company Director) fewer than the number of\nPurchaser Directors then serving on the Board, the Purchaser shall promptly\nobtain resignations from such of its Purchaser Directors (chosen by the\nPurchaser) as may be required to cause the number of Purchaser Directors\nserving on the Board to be equal to the number of Directors that the Purchaser\nis then entitled to designate.\n\n                 4.3.3.  By the Purchaser and the Company.  Names of all\nDirector nominees designated by the Purchaser or by those Directors of the\nCompany not designated by the Purchaser shall be furnished to the Purchaser and\nthe Company (a) in the case of election of Directors at an annual meeting or\notherwise pursuant to a vote of the Company's stockholders, in time to be\nincluded in the proxy materials related to such election, and (b) at least ten\n(10) days prior to election or appointment of Directors by the Board.  The\nCompany and the Purchaser agree that (a) the Purchaser Directors and the\nCompany Directors shall be classified, with respect to the time for which they\nseverally hold office, into three classes as nearly as equal in number as\npossible as determined by the Board; and (b) the Purchaser\n\n\n\n\n\n                                      -9-\n\n\nDirectors, on the one hand, and the Company Directors, on the other hand, will\nbe divided among the three classes as equally as possible.\n\n         4.4.  COMMITTEES.  The Purchaser shall be entitled to designate that\nnumber of the Purchaser Directors to serve on each committee of the Board so\nthat such Purchaser Directors constitute the same percentage (rounded up to the\nnext whole number) of such committee as is on the Board; provided that in no\nevent shall the number of Purchaser Directors serving on a committee exceed the\nnumber of Company Directors serving on such committee.  With respect to the\naudit committee, any Purchaser Director designee shall, as a condition to\nmembership thereon, meet all requirements imposed by the rules of any national\nsecurities exchange, or the Nasdaq National Market, on which the Common Stock\nmay then be listed or quoted.  With respect to the compensation committee, any\nPurchaser Director designees shall, as a condition to membership thereon,\nqualify as 'disinterested' within the meaning of Rule 16b-3 under the Exchange\nAct or any similar rule then in effect.\n\n         4.5.  VACANCIES.  If any Purchaser Director or Purchaser Director\nnominee shall decline to serve on, resign or be removed from, or for any other\nreason be unable to serve on the Board or any committee thereof, the vacancy\nresulting therefrom shall be filled in accordance with the Company's\nCertificate of Incorporation and Bylaws and this Article 4 by another person\ndesignated by the Purchaser pursuant to Section 4.1.  If any Company Director\nor Company Director nominee shall decline to serve on, resign or be removed\nfrom, or for any other reason be unable to serve on the Board or any committee\nthereof, or if the size of the Board is increased the vacancy resulting\ntherefrom shall be filled in accordance with the Company's Certificate of\nIncorporation and Bylaws and this Article 4 by a person designated by a\nmajority of the then Company Directors.  This Section 4.5 shall not operate to\nallow the Purchaser or the Company Directors to designate a greater percentage\nof Directors or committee members than it or they would be entitled to\ndesignate hereunder but for this Section 4.5.\n\n\n                                   ARTICLE 5.\n                               CERTAIN COVENANTS\n\n         5.1.  PROXY SOLICITATIONS.  Neither the Purchaser nor its Affiliates\nshall, directly or indirectly, (a) solicit, initiate or participate in any\n'solicitation' of 'proxies' or become a 'participant' in any 'election contest'\n(as such terms are defined or used in Regulation 14A under the Exchange Act,\ndisregarding clause (iv) of Rule 14a-1(1)(2) and including any exempt\nsolicitation pursuant to Rule 14a-2(b)(1)); call, or in any way participate in\na call for, any special meeting of\n\n\n\n\n\n                                      -10-\n\n\nstockholders of the Company (or take any action with respect to acting by\nwritten consent of the Company's stockholders); request, or take any action to\nobtain or retain any list of holders of any securities of the Company; or\ninitiate or propose any stockholder proposal or participate in the making of,\nor solicit stockholders for the approval of, any stockholder proposal; (b)\ndeposit any Voting Stock in a voting trust or subject any Voting Stock to any\nvoting agreement or arrangements, except as provided herein and except that\nthis Section 5.1 (b) shall not prohibit any such arrangement solely among the\nPurchaser and its wholly-owned subsidiaries; (c) form, join or in any way\nparticipate in a 'group' (within the meaning of Section 13(d)(3) of Exchange\nAct) with respect to any Voting Stock (or any securities the ownership of which\nwould make the owner thereof a Beneficial Owner of Voting Stock ); (d) seek\nBoard representation or the removal of any Company Directors or a change in the\ncomposition or size of the Board (other than as necessary to obtain the Board\nrepresentation to which it is entitled hereunder); (e) take any action, or\ndisclose any intent, purpose, plan or proposal, with respect to this Agreement,\nthe Company or its Affiliates or the Board, management, policies, affairs,\nsecurities or assets of the Company or its Affiliates that is inconsistent with\nthis Agreement, including any action, intent, purpose, plan or proposal that is\nconditioned on, or would require the Company or any of its Affiliates to make\nany public disclosure relating to, any such action, intent, purpose, plan,\nproposal or condition; or (f) assist, advise, encourage or act in concert with\nany person with respect to, or seek to do, any of the foregoing.\nNotwithstanding the generality of the foregoing, nothing herein shall (x)\nprevent the Purchaser or its Affiliates from voting their respective shares, or\ntaking such other action as it may deem necessary or appropriate, to cause the\nelection as Directors of those persons the Purchaser is entitled to designate\npursuant to Section 4.1, (y) prevent the Purchaser from taking any action which\nthe Board of Directors of the Purchaser in good faith, based upon the advice of\noutside counsel, determines is required by the fiduciary obligations of the\nPurchaser as a stockholder of the Company to the Company's other stockholders\nor (z) prohibit or restrict any action taken by the Purchaser or any of its\nAffiliates in connection with the exercise of the rights of the Purchaser and\nits Affiliates specifically permitted by this Agreement.\n\n         5.2.  VOTING.  Except as specifically otherwise set forth herein, the\nPurchaser and its Affiliates shall vote any Voting Stock Beneficially Owned by\nthem in connection with any matter or proposal submitted to a vote of the\nCompany stockholders but not sponsored or supported by the Board either (a) in\naccordance with the recommendation of a majority of the Board, or (b) in the\nabsence of a recommendation of a majority of the Board, then proportionately in\naccordance with the votes of all stockholders of the Company who have voted\nwith respect to such matter or\n\n\n\n\n\n                                      -11-\n\n\nproposal; provided that except as otherwise set forth herein (including Article\n4), the Purchaser and its Affiliates may vote any Voting Stock Beneficially\nOwned by them in connection with any such matter or proposal in their sole\ndiscretion so long as the Purchaser is not entitled to designate, and has not\ndesignated, 50% of the total number of Directors then serving on the Board\npursuant to the terms of this Agreement.  The Purchaser and its Affiliates\nshall vote any Voting Stock Beneficially Owned by them in connection with any\nregular or special meeting of stockholders or in any written consent executed\nin lieu of such a meeting to (a) ensure that the Company's Certificate of\nIncorporation and Bylaws do not at any time conflict with any provisions of\nthis Agreement and (b) otherwise carry out the provisions of this Agreement,\nincluding, without limitation, voting to remove any Purchaser Director if the\nnumber of Directors that the Purchaser is entitled to designate pursuant to\nSection 4.1 is fewer than the number of Purchaser designees then serving on the\nBoard.  The Purchaser and its Affiliates shall be present in person or\nrepresented by proxy at all stockholder meetings of the Company called by the\nCompany so that all Voting Stock of which they are the Beneficial Owner may be\ncounted for the purpose of determining the presence of a quorum at such\nmeetings.\n\n         5.3.  MATERIAL TRANSACTIONS.  At all times that the Purchaser Interest\nis less than 100%, neither the Purchaser nor any of its Affiliates shall engage\nin any material transaction with the Company or any of its subsidiaries unless\nsuch transaction has been approved by a majority of the Company Directors or,\nin the case of a series of related transactions, is in accordance with\nguidelines approved by a majority of the Company Directors.  For purposes of\nthis Section 5.3, 'material transaction' shall mean (i) any amendment to,\ntermination of, or waiver of any provision of, this Agreement or, any of the\nother Transaction Documents that have been executed and delivered and (ii) any\ntransaction between the Company or any of its subsidiaries and the Purchaser or\nany of its Affiliates, or any transaction (other than a transaction of the type\ndescribed in Section 2.1.3 or Section 2.1.4) between the stockholders of the\nCompany, in their capacity as stockholders, and the Purchaser or any of its\nAffiliates, including, without limitation: (a) any sale of all or substantially\nall of the assets of the Company or any of its subsidiaries or any business\ndivision or operation of the Company or any of its subsidiaries, (b) any\nissuance of Voting Stock or other securities by the Company or any of the\nCompany's subsidiaries, (c) any transaction including any related transactions\ninvolving payments, the incurrence of obligations, or transfers of assets, and\n(d) any merger or other business combination involving the Purchaser and\/or any\nof its Affiliates; provided, that 'material transaction' shall not include any\n(i) transaction in accordance with the terms of the Transaction Documents or\n(ii) other transaction (including any related\n\n\n\n\n\n                                      -12-\n\n\ntransactions) involving payments by or obligations or transfer of property of\nthe Company with an aggregate value less than $100,000.\n\n\n                                   ARTICLE 6.\n                                 MISCELLANEOUS\n\n         6.1.  TERMINATION.  Article 4 and Article 5 of this Agreement and the\nrights and obligations of the Purchaser and the Company thereunder shall\nterminate at the first time after the date hereof that the Purchaser Interest\nshall have been less than fifteen percent (15%) for a period of at least thirty\n(30) consecutive days.\n\n         6.2.  GOVERNING LAW; CONSENT TO JURISDICTION.  This Agreement shall be\ngoverned by, construed under and enforced in accordance with, the laws of the\nState of Delaware without regard to its conflict-of-laws principles.  The\nPurchaser and the Company agree that (i) any legal action or proceeding arising\nout of or in connection with this Agreement or the transactions contemplated\nhereby shall be brought only in the courts of the State of Delaware or Federal\ncourts of the United States of America sitting in Delaware, (ii) each\nirrevocably submits to the jurisdiction of each such court, and (iii) any\nsummons, pleading, judgment, memorandum of law, or other paper relevant to any\nsuch action or proceeding shall be sufficiently served if delivered to the\nrecipient thereof by certified or registered mail (with return receipt) at its\naddress set forth in Section 6.4.  Nothing in the proceeding sentence shall\naffect the right of any party to proceed in any jurisdiction for the\nenforcement or execution of any judgment, decree or order made by a court\nspecified in said sentence.\n\n         6.3.  SPECIFIC PERFORMANCE.  The parties hereto acknowledge and agree\nthat irreparable damage would occur in the event that any of the provisions of\nthis Agreement were not performed in accordance with their specifications or\nwere otherwise breached.  It is accordingly agreed that each of the parties\nhereto shall be entitled to an injunction or injunctions to prevent or cure\nbreaches of the provisions of this Agreement by the other and to enforce\nspecifically the terms and provisions of this Agreement, this being in addition\nto any other remedy to which they may be entitled by law or equity.\n\n         6.4.  NOTICES.  Any notice required or permitted to be given under\nthis Agreement shall be written, and may be given by personal delivery, by\ncable, telecopy, telex or telegram (with a confirmation copy mailed as\nfollows), by Federal Express, United Parcel Service, DHL, or other reputable\ncommercial delivery service, or by registered or certified mail, first-class\npostage prepaid, return receipt requested.  Notice shall be deemed given\n\n\n\n\n\n                                      -13-\n\n\nupon actual receipt.  Mailed notices shall be addressed as follows, but each\nparty may change address by written notice in accordance with this paragraph.\n\n         To the Company:                   Salton\/Maxim Housewares, Inc.\n                                           550 Business Center Drive\n                                           Mount Prospect, Illinois 60056\n                                           Attention: Chief Executive Officer\n                                           Fax:  (708) 803-8080\n\n         with a copy to:                   Sonnenschein Nath &amp; Rosenthal\n                                           8000 Sears Tower\n                                           Chicago, Illinois  60606\n                                           Attention: Neal Aizenstein, Esq.\n                                           Fax:  (312) 876-7934\n\n\n         To the Purchaser:                 Windmere Corporation\n                                           5980 Miami Lakes Drive\n                                           Miami Lakes, Florida  33014-9867\n                                           Attention: Chief Executive Officer\n                                           Fax:  (305) 364-0502\n\n\n         with a copy to:                   Greenberg, Traurig, Hoffman,\n                                           Lipoff, Rosen &amp; Quentel, P.A.\n                                           1221 Brickell Avenue\n                                           Miami, Florida  33131\n                                           Attention:  Andrew Hulsh, Esq.\n                                           Fax:  (305) 599-0717\n\n\n         6.5.  WAIVER.  Subject to Section 5.3 hereof, each party hereto may in\nits sole discretion (i) extend the time for the performance of any of the\nobligations or other acts of the other party hereunder or (ii) waive compliance\nby the other party with any of the agreements or conditions contained herein.\nNo term or provision hereof shall be deemed waived and no breach hereof excused\nunless such waiver or consent shall be in writing and signed by the party\nclaimed to have waived or consented (in the case of the Company, by a majority\nof the Company Directors so waiving or consenting).  No waiver hereunder shall\napply or be construed to apply beyond its expressly stated terms.  No failure\nto exercise and no delay in exercising any right, remedy, power or privilege\nhereunder shall operate as a waiver thereof, and no single or partial exercise\nof any right, remedy, power or privilege hereunder shall preclude any other or\nfurther exercise thereof or the exercise of any other right, remedy, power or\nprivilege.  No failure to insist upon strict performance of any term or\nprovision of this Agreement, or to exercise any right hereunder, shall be\nconstrued as a waiver or as a relinquishment of such term, provision, or right.\n\n\n\n\n\n                                      -14-\n\n\n\n         6.6.  SUCCESSORS, ASSIGNMENT; PARTIES IN INTEREST AND THIRD PARTY\nBENEFICIARIES.  Except as otherwise expressly provided herein, this Agreement\nand the rights hereunder may not be assigned by the Purchaser or the Company\nwithout the prior written consent of the other party, which may be given or\nwithheld in the other party's discretion.  This Agreement shall be binding upon\nand inure solely to the benefit of the Purchaser and the Company and their\nrespective successors and permitted assigns, and except as provided in this\nSection 6.6, nothing in this Agreement, express or implied, is intended to or\nshall confer upon any other person any rights, benefits or remedies of any\nnature whatsoever under or by reason of this Agreement.  Whenever this\nAgreement provides for a majority of the Company Directors to make a\ndetermination or otherwise take any action, any Company Director who abstains\nfrom making such determination or taking such action based upon the advice of\ncounsel that such Director is not a disinterested Director shall not be counted\nfor purposes of determining whether a majority of the Company Directors shall\nhave made such determination or taken such action.  In the event the Company\nDirectors shall not be in office or the Company has failed to seek enforcement\nof its rights under this Agreement despite a demand by the Company Directors\nthat the Company do so, the present and future holders of Beneficial Ownership\nof Voting Securities (other than the Purchaser and its Affiliates) are intended\nthird party beneficiaries of this Agreement and any such person may take such\naction as may be deemed necessary or appropriate to enforce the rights and\nobligations arising pursuant to this Agreement or to obtain the benefits\nintended to be conferred hereby.\n\n         6.7.  ENTIRE AGREEMENT.  This Agreement, together with the other\nTransaction Documents and the Confidentiality Agreements, constitutes the\nentire agreement between the Purchaser and the Company with respect to the\nsubject matter hereof and thereof and the transactions contemplated hereby and\nthereby and supersedes all prior or contemporaneous, written or oral agreements\nor understandings with respect thereto.  The provisions of the Confidentiality\nAgreements shall continue in effect after the date hereof except that Sections\n8 and 9 thereof shall terminate upon the date hereof.\n\n         6.8.  AMENDMENT.  Subject to Section 5.3 hereof, this Agreement may be\namended only to the extent permissible under applicable law and only by a\nwritten instrument executed and delivered by a duly authorized officer of the\nPurchaser and a duly authorized officer of the Company.\n\n         6.9.  SEVERABILITY.  The provisions set forth in this Agreement are\nseverable.  If any provision of this Agreement is held invalid or unenforceable\nin any jurisdiction, the remainder of this Agreement, and the application of\nsuch provision to other persons or circumstances, shall not be affected\nthereby, and\n\n\n\n\n\n                                      -15-\n\n\nshall remain valid and enforceable in such jurisdiction, and any such\ninvalidity or unenforceability in any jurisdiction shall not invalidate or\nrender unenforceable such provision in any other jurisdiction.\n\n         6.10.  CUMULATION OF REMEDIES.  All remedies available to any party\nfor breach or non-performance of this Agreement are cumulative and not\nexclusive of any rights, remedies, powers or privileges provided by law, and\nmay be exercised concurrently or separately, and the exercise of any other\nremedy shall not be deemed an election of such remedy to the exclusion of other\nremedies.\n\n         6.11.  FAIR CONSTRUCTION.  This Agreement shall be deemed the joint\nwork product of the Purchaser and the Company without regard to the identity of\nthe draftperson, and any rule of construction that a document shall be\ninterpreted or construed against the drafting party shall not be applicable.\n\n         6.12.  HEADINGS; REFERENCES.  Headings used in this Agreement are\ninserted as a matter of convenience and for reference, do not constitute a part\nof this Agreement for any other purpose, and shall not affect the\ninterpretation or enforcement hereof or thereof.\n\n         6.13.  COUNTERPARTS.  This Agreement may be executed in two\ncounterparts, each of which shall be deemed an original, but both of which\ntogether shall constitute one and the same instrument.\n\n         IN WITNESS WHEREOF, the parties hereto have executed and delivered\nthis Agreement as of the date first above written.\n\n\nSALTON\/MAXIM HOUSEWARES, INC.                    WINDMERE-DURABLE HOLDINGS, INC.\na Delaware corporation                           a Florida corporation\n                                        \n                                        \nBy:                                              By:                     \n    -------------------------                        --------------------\n                                        \nName:                                            Name:  \n      -----------------------                          ------------------     \nTitle:                                           Title: \n      -----------------------                          ------------------\n\n\n\n\n                                      -16-\n\n<\/pre>\n","protected":false},"template":"","meta":{"_acf_changed":false,"_stopmodifiedupdate":true,"_modified_date":"","_cloudinary_featured_overwrite":false},"corporate_contracts_companies":[6726,8750],"corporate_contracts_industries":[9393],"corporate_contracts_types":[9629,9633],"class_list":["post-43942","corporate_contracts","type-corporate_contracts","status-publish","hentry","corporate_contracts_companies-applica-inc","corporate_contracts_companies-salton-inc","corporate_contracts_industries-consumer__appliances","corporate_contracts_types-securities","corporate_contracts_types-securities__shareholder"],"acf":[],"_links":{"self":[{"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts\/43942","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=43942"}],"wp:term":[{"taxonomy":"corporate_contracts_companies","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_companies?post=43942"},{"taxonomy":"corporate_contracts_industries","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_industries?post=43942"},{"taxonomy":"corporate_contracts_types","embeddable":true,"href":"https:\/\/corporate.findlaw.com\/legal-api\/wp-json\/wp\/v2\/corporate_contracts_types?post=43942"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}