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Exhibit 10.2
Agreement made as of July 1, 1999
by and between
Xxx Xxxxxxxxxx ("Seller")
and
Salton Inc., a Delaware corporation ("Salton")
WHEREAS:
A. Seller expects to receive a distribution from MikeSam LLC, a California
limited liability company ("MikeSam") of a seven and one half percent
(7.5%) undivided interest in certain licenses for trademarks and MikeSam is
sometimes referred to for convenience in this Agreement;;
B. Seller desires to acquire an option to sell to Salton (the "Put"), and
Salton desires to acquire an option to purchase from Seller (the "Call"),
Seller's undivided interest in certain trademarks.
THEREFORE, Seller and Salton agree as set forth below.
1. Property Subject to Options. The property subject to the Put and the
Call is all right, title and interest in a seven and one half percent
(7.5%) undivided interest in the following assets:
(a) the registered trademarks and the goodwill associated therewith
to use in perpetuity and worldwide which include, but are not
limited to the name Xxxxxx Xxxxxxx (including shortened versions
of the name, such as "Xxxxxx"), pictures, caricatures,
likenesses, and the signatures of X. Xxxxxxx which have been used
in connection with the marketing of certain products by Salton;
and
(b) The unregistered common law trademarks and the good will
associated therewith and certain trademark applications to use in
perpetuity and worldwide which include, but are not limited to
the name Xxxxxx Xxxxxxx (including shortened versions of the
name, such as "Xxxxxx"), pictures, caricatures, likenesses, and
the signatures of Xxxxxx Xxxxxxx which have been used in
connection with the marketing of certain products by Salton.
Seller's interests in the property referred to above are defined as the
"Xxxxxxx Interests".
2. Seller's Put; Purchase Price.
(a) Seller shall have the right to exercise its Put of the Xxxxxxx
Interests during a period ("Put Period") that commences December
1, 1999, and ends at the close of business, CST, on the thirtieth
(30th day) next following the first day of the Put Period
(including the first day of the Put Period). If Seller does not
exercise its Put within the Put Period, the Put shall terminate
automatically without any notice from Salton and Seller shall
have no further right to compel Salton to purchase the Xxxxxxx
Interests.
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(b) If Seller gives Notice to Salton of Seller's exercise of its Put,
there shall be a closing of the sale pursuant to the Put (the
"Closing") which shall occur as set forth in Section 6(c) not
later than sixty (60) days after such Notice is given on a date
designated by Salton, except that if the sixtieth (60th) day is
not a day when banks in Los Angeles and New York City are both
open for business ("Business Day"), then the Closing shall occur
not later then the next day that is a Business Day.
(c) If Seller's Put is exercised, the total purchase price to be paid
to Seller for the Xxxxxxx Interests is thirteen million seven
hundred fifty thousand dollars ($13,750,000) of which six million
eight hundred and seventy five thousand dollars ($6,875,000)
shall be paid in cash and six million eight hundred and seventy
five thousand dollars ($6,875,000) shall be paid in shares of
Common Stock of Salton (the "Salton Shares") valued as set forth
in Section 5.
3. Salton's Call; Purchase Price.
(a) Salton shall have the right to exercise its Call on the Xxxxxxx
Interests within a thirty (30) day period ("Call Period") that
begins on the day next following the end of the Put Period and
ends on the close of business, CST, on the thirtieth (30th) day
next following the commencement of the Call Period (including the
first day of the Call Period). If Salton has not exercised its
Call within the Call Period, the Call shall terminate
automatically without any notice from Seller and Salton shall
have no further right to compel Seller to sell the Xxxxxxx
Interests.
(b) Upon Salton giving Notice to Seller of Salton's exercise of its
Call, there shall be a Closing of the sale pursuant to the Call
which shall occur as set forth in Section 6(c) not later than
thirty (30) days after such Notice is given on a date designated
by Salton, except that if the thirtieth (30th) day is not a
Business Day, then the Closing shall occur not later then the
next day that is a Business Day.
(c) If Salton's Call is exercised by Salton, the total purchase price
to be paid to Seller for the Xxxxxxx Interests is thirteen
million five hundred thousand dollars ($13,500,000) of which six
million seven hundred fifty thousand dollars ($6,750,000) shall
be payable in cash and six million seven hundred fifty thousand
dollars ($6,750,000) shall be payable in Salton Shares valued as
set forth in Section 5.
4. Terms of Payment. The total purchase price owing to Seller shall be
paid as set forth below.
(a) Put Price. On the exercise of Seller's Put, the total purchase
price, $13,750,000, shall be paid as follows:
(i) On the Closing (defined in Section 6(c) below),one million
three hundred seventy-five thousand dollars ($1,375,000)
shall be paid in cash and six million eight hundred
seventy-five thousand dollars ($6,875,000) shall be paid in
shares of the Common Stock of Salton (the "Salton Shares").
The cash portion of the purchase price to be paid at the
Closing
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shall be delivered by Federal Funds wired to a bank
account designated by Seller prior to the date of the
Closing. The portion of the purchase price to be paid in
Salton Shares shall be delivered in one or more stock
certificates of Salton evidencing the Salton Shares
registered in the name of Seller.
(ii) The balance of the cash portion of the purchase price, five
million five hundred thousand dollars ($5,500,000) shall be
paid in four equal installments of one million three
hundred seventy-five thousand dollars ($1,375,000) each,
without interest, on the first day of July, 2000, 2001,
2002 and 2003 unless such July 1 is not a Business Day, in
which case the payment shall be made on the next date which
is Business Day. Each installment shall be delivered by
federal funds wired to a bank account designated by Seller
prior to the date of closing.
(b) Call Price. On the exercise of Purchaser's Call, the total
purchase price, $13,500,000, owing to Seller shall be paid as set
forth below:
(i) On the Closing (defined in Section 6(c) below), one million
three hundred thousand dollars ($1,300,000) shall be paid
in cash and six million five hundred thousand dollars
($6,500,000) shall be paid in shares of the Common Stock of
Salton (the "Salton Shares"). The cash portion of the
purchase price to be paid at the Closing shall be delivered
by Federal Funds wired to a bank account designated by
Seller prior to the date of the Closing. The portion of the
purchase price to be paid in Salton Shares shall be
delivered in one or more stock certificates of Salton
evidencing the Salton Shares registered in the name of
Seller.
(ii) The balance of the cash portion of purchase price, five
million four hundred thousand dollars ($5,400,000) shall be
paid in four equal installments of one million three
hundred fifty thousand dollars ($1,350,000) each, without
interest, on the first days of July, 2000, 2001, 2002 and
2003 unless such July 1 is not a Business Day, in which
case the payment shall be made on the next date which is
Business Day. Each installment shall be delivered by
federal funds wired to a bank account designated by Seller
prior to the date of closing.
(c) Advance Payments. Salton shall receive credit at a Closing under
this Agreement, and, to the extent of Salton's payments, against
the annual installments of the purchase to be paid in cash, for
payments made by Salton after the date hereof, as advances toward
the cash portion of the purchase price in the event the call or
the Put is exercised.
5. Calculation of Number of Shares to be delivered to Seller at Closing.
(a) On Exercise of Put. The number of shares of common stock of
Salton to be delivered to Seller on the Closing shall be the
greater of the following two
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numbers: (i) two hundred thirty-seven thousand and sixty-nine
(237,069) or (ii) 6,875,000 divided by the Average Salton Price
as defined in this Section 5.
(b) On Exercise of Call. The number of shares of common stock of
Salton to be delivered to Seller on the Closing shall be the
greater of the following two numbers: (i) two hundred twenty-four
thousand one hundred thirty eight (224,138) or (ii) 6,500,000
divided by the Average Salton Price as defined in this Section 5.
(c) The "Average Salton Price" shall be the average of the closing
prices of Salton common stock on the New York Stock Exchange
("NYSE") as reported on the NYSE Composite Transaction Tape for
the twenty trading days ending on the third trading day preceding
the Closing Date
6. Conditions to Closing.
(a) Seller Conditions. At or before the Closing, Seller shall have
received the following:
(i) a copy of the Articles of Incorporation, as amended, of
Salton certified by the Delaware Secretary of State
(ii) a copy of the By-Laws of Salton and a copy of the Unanimous
Consent of Directors of the Board of Directors of Salton
authorizing the execution, delivery and performance of this
Agreement, both certified by the Secretary of Salton;
(iii) a good standing certificate of Salton certified by the
Secretary of State of Delaware;
(iv) a bring down certificate executed by an officer of Salton
certifying that the representations and warranties of
Salton set forth in Section 7 below are true and correct as
of the Closing;
(v) Seller shall have received the cash portion of the purchase
price to be delivered at the Closing; and
(vi) Seller shall have received certificates for Salton Shares
issued in the name of Seller bearing a restrictive legend
which permits the Salton Shares to be sold only pursuant to
a registered offering pursuant to Section 9 hereof or
pursuant to Rule 144 adopted by the Securities and Exchange
Commission.
(b) Salton Conditions. At or before the Closing, Salton shall have
received the following:
(i) a copy of the Articles of Organization, as amended, of
MikeSam certified by the California Secretary of State
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(ii) a good standing certificate of MikeSam certified by the
Secretary of State of California ;
(iii) a copy of the operating agreement of MikeSam certified by
Seller and by Xxxx Xxxxxxxx, the owner of all the
outstanding stock of Xxxxxxxx and Associates, Inc., the
owner of the remaining interests in MikeSam.
(iv) evidence of Uniform Commercial Code searches, searches of
the Offices of the United States Trademark Patent Office
Registration System and other certificates reasonably
requested by Salton in order to confirm that the properties
being sold hereunder by Seller are free and clear of all
security interests, liens and encumbrances.
(v) a xxxx of sale and assignment of the Xxxxxxx Interests;
(vi) such other documents and assignments as Salton may require
reasonably in order to effect the assignment and transfer
to Salton of the assets sold hereunder; and
(vii) Salton shall have such consents, if any, as Salton
determines are required under Salton's existing Credit
Agreement with Xxxxxx Brothers Commercial Paper Inc. as
Administrative Agent for the several bank lenders who are
parties from time to time to the Credit Agreement.
(c) Closing. The closing shall occur on the date as determined above
in this Agreement at the offices of Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
located at Suite 1500, 000 Xxxxx Xxxxxxxx Xxxxxx, Xxx Xxxxxxx, XX
00000 at 10 A.M., CST. At the closing, Seller and Salton shall
each make the deliveries required of them as set forth above.;
7. Representations and Warranties of Seller. Seller represents, warrants
and agrees with Salton that, as of the date hereof and up to and
including the date of closing that each of the following
representations is true and correct:
(a) No Prior Transfer of Seller's Interest. Seller has not licensed
or in any other way authorized any Person to use in any manner
any of the Seller's undivided interest in the Xxxxxxx Interests
and to Seller's knowledge, there is no unauthorized use thereof
by any Person.
(b) No Prior Commitment to Sell. Seller has no commitment or legal
obligation, absolute or contingent, to any Person other than
Salton to sell, assign, license, transfer or effect a sale of any
of Seller's undivided interest in the Xxxxxxx Interests or to
enter into any Contract or cause the entering into of a Contract
with respect to the foregoing.
(c) Seller's Percentage Interest. As of the date of Closing, Seller
shall own all right, title and interest in and to a seven and one
half percent (7.5%) undivided interest in the Xxxxxxx Interests
free and clear of all Liens.
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(d) MikeSam. MikeSam owned all right, title and interest in and to a
fifteen percent (15%) interest in a Joint Venture ("JV") formed
pursuant to a Joint Venture Agreement dated as March 1, 1995
among Salton Maxim Houseware, Inc., Xxxxxx Xxxxxxx Productions,
Inc., a Nevada corporation and Xxxxxxxx X., a California
corporation ("BH"); BH was never organized; MikeSam has owned
since the creation of the Joint Venture Agreement the 15%
interest designated in the Joint Venture Agreement to belong to
BH; upon a dissolution of the joint venture, MikeSam will receive
and continue to own as set forth above, a fifteen percent (15%)
undivided interest in the Xxxxxxx Interests distributed in the
liquidation of the JV.
(e) Only Members. The only two members of MikeSam are, Seller and
Xxxxxxxx & Associates, Inc., a California corporation, each of
which owned a fifty percent (50%) interest as a member in
MikeSam.
(f) Litigation. There are no Claims pending or threatened before any
Governmental Authority or before any arbitrator of any nature,
brought by or against the Seller or MikeSam involving, affecting
or relating to the business, assets, operations or securities of
MikeSam, or the transactions contemplated by this Agreement, nor
is there any basis for any such Claim. Neither of MikeSam or the
Seller, or their respective assets is subject to any order, writ,
judgment, award, injunction or decree of any Governmental
Authority or arbitrator.
(g) Liens and Encumbrances. Seller holds and owns full,
unconditional, good and marketable title to his interest in
MikeSam free and clear of all Liens.
(h) Contracts. The consummation of the transactions contemplated
hereby, without notice to or consent or approval of any party,
will not constitute a default under or a breach of any provisions
of any Contract affecting Seller.
(i) Absence of Employee Benefit Plans. MikeSam has never maintained
nor has any liability with respect to an employee benefit plan as
defined in ERISA.
(j) ERISA. There are no facts which could give rise to any Claim
against or liability of MikeSam or Seller for failure to comply
with ERISA or the Code in connection with the sale of Seller's
interest in the Xxxxxxx Interests.
(k) Environmental Matters. (a) MikeSam is and at all times has been,
in compliance with all applicable Environmental Laws. MikeSam is
not subject to any requirement to have any permits and other
governmental authorizations under applicable Environmental Laws.
MikeSam has not received any communication (written or oral),
whether from a Governmental Authority, Person, citizens group or
otherwise, that alleges that MikeSam is not or was not in
compliance with any Environmental Law. (b)There is no
Environmental Claim pending or threatened against MikeSam or
against any Person whose Liability for any Environmental Claim
that MikeSam has or may have retained or assumed either
contractually or by operation of law.
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(l) Taxes. MikeSam has timely filed or caused to be filed all
federal, state, local and foreign Tax (as defined below) and
information returns required to be filed and has paid all Taxes
required to be paid in respect of the periods for which returns
are due, up to and including the Closing. For these purposes, the
Tax attributable to the period including the Closing should be
determined as if the taxable year ended at the Closing. MikeSam
is not delinquent in the payment of any Tax, and no deficiencies
for any Tax, assessment or governmental charge have been or will
be claimed, proposed, assessed or threatened. There are no Liens
on the assets of MikeSam for unpaid Taxes. No waiver or extension
of time to assess any Taxes has been given or requested. No claim
has been made by any taxing authority in any jurisdiction that
MikeSam is or may be subject to taxation by that jurisdiction.
For the purposes of this Section, the term "Tax" shall include
all taxes, charges, withholdings, fees, levies, penalties,
additions, interest or other assessments imposed by any federal,
state, local or foreign or other taxing authority on MikeSam or
any of its former or present properties, assets or operations
(including as a result of being a member of an affiliated,
combined or unitary group or as a result of any obligation
arising out of an agreement to indemnify any other Person), and
including those related to income, employee welfare or retirement
(including social security), gross receipts, sales, use,
occupation, services, leasing, valuation, addition of value,
transfer, license, customs duties or franchise; provided,
however, that, although the term "Tax" is defined herein to
include "income", nothing herein shall be deemed to be a
representation or warranty that the other member of MikeSam who
is not Seller, has paid all Tax that is owing by reason of the
fifty percent (50%) share of the income of MikeSam that has been
allocated for each fiscal year of MikeSam to such other member as
required by the operating agreement of MikeSam and as has been
set forth in the K-1 informational forms which have been filed by
MikeSam and a copy of which K-1 returns have been furnished to
such other member during the existence of MikeSam in accordance
with the requirements of the Internal Revenue Code and California
law. MikeSam's Tax Returns have never been audited by the
Internal Revenue Service or comparable state, local or foreign
agencies. MikeSam has not been a member of an Affiliated Group or
been included in a combined, consolidated or unitary Tax return.
MikeSam is not a party to or bound by any Tax allocation or Tax
sharing agreement or has any current or potential obligation to
indemnify any other Person with respect to Taxes. MikeSam is not
required to make any adjustments under Section 481(a) of the Code
by reason of a change in accounting method which affects any
taxable year ending after the Closing Date, or has any
application pending to effect such a change of accounting method.
(m) Compliance with Applicable Law. (a) MikeSam does not require and
has no licenses, permits, franchises, authorizations,
registrations and approvals (the "Licenses") from any
Governmental Authority and is not and will not be subject to any
pending or threatened administrative or judicial proceeding with
respect to the lack thereof. MikeSam has not acted or been in
violation of, any Rule of any Governmental Authority applicable
to MikeSam or its assets or prior operations.
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(n) Brokers' Fees and Commissions. The Seller has not employed any
investment banker, broker, finder or intermediary in connection
with the transactions contemplated hereby.
(o) Labor Matters. (a) No present or former employee or independent
contractor performing services for MikeSam has a Claim pending or
has threatened to or will make a Claim against MikeSam (under any
Rule of any Governmental Authority or otherwise), including any
Claim for (i) overtime pay, other than overtime pay for the
current payroll period, (ii) wages, salaries or profit sharing
(excluding wages, salaries or profit sharing for the current
payroll period), (iii) vacations, time off or pay in lieu of
vacation or time off, other than vacation or time off (or pay in
lieu thereof) earned in respect of MikeSam's current fiscal year,
(iv) any violation of any Rule or contract relating to minimum
wages or maximum hours of work, (v) discrimination against
employees on any basis, (vi) unlawful or wrongful employment or
termination practices, (vii) unlawful retirement, termination or
labor relations practices or breach of contract or (viii) any
violation of occupational safety or health standards. There are
and will be no administrative charges, arbitration or mediation
proceedings or court complaints pending or threatened against
MikeSam before the U.S. Equal Employment Opportunity Commission
or any state or federal court or agency or any other entity
concerning alleged employment discrimination, contract violation
or any other matters relating to the employment of labor. There
is and will be no unfair labor practice charge or complaint
pending or threatened against MikeSam before the National Labor
Relations Board or any similar state or local body.
(p) Compliance With Laws. MikeSam is and has been in compliance with
all applicable Rules relating to the employment of labor,
including employment and employment practices, terms and
conditions of employment, wages and hours, equal opportunity,
occupational health and safety, severance, termination or
discharge, collective bargaining and the payment of employee
welfare and retirement and other taxes, the Worker Adjustment
Retraining and Notification Act and the Immigration Reform and
Control Act of 1986, each as amended, and is not engaged in any
unfair labor practice or any violation of any other law, rule or
regulation concerning employment or retention of independent
contractors.
(q) No Employees. MikeSam has no employees. As of the Closing Date,
MikeSam will not a signatory or party to, or otherwise bound by,
a collective bargaining agreement (or any other agreement with
any labor organization) which covers employees of MikeSam, and
there is no activity or proceeding of any labor organization (or
representative thereof) to organize any unorganized employees of
MikeSam. There is not pending or threatened against MikeSam any
labor dispute, grievance, slowdown, lockout, strike, work
stoppage or other collective labor action in effect, pending or
threatened against or affecting MikeSam.
(r) Accounts Receivable; Liabilities. MikeSam has no accounts
receivable or liabilities. MikeSam will have no liability for any
healthcare, medical, disability,
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death benefit or similar expenses of any manager or employee of
MikeSam or any other Person which are the result of injuries or
illnesses which occurred prior to the Closing (regardless of when
such expenses are incurred).
(s) No Leased or Owned Real Property. MikeSam does not own, lease or
sublease any real property.
(t) Disclosure. All documents, agreements and other papers and
materials delivered by or on behalf of the Seller in connection
with this Agreement, and the transactions contemplated hereby and
thereby are true, complete and accurate. None of the
representations, warranties or statements of the Seller contained
in this Agreement or in any Schedules or Exhibits hereto contains
any untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make
the representations, warranties or statements made, in the
context in which made, not false or misleading. There is no fact
that the Seller has not disclosed to Salton in writing that
causes an adverse effect or could result in an adverse effect.
The Seller acknowledges that the statements contained in this
Section shall not be deemed to limit or qualify any of the other
representations or warranties contained in this Agreement, in any
Schedules or Exhibits hereto or in any agreement or document
delivered in connection herewith.
(u) No Existing Commitment to Sell. Seller has no commitment or legal
obligation, absolute or contingent, to any Person other than
Salton to sell, assign, license, transfer or effect a sale of any
of his interest in the Xxxxxxx Interests or to enter into any
contract or cause the entering into of a contract with respect to
the Xxxxxxx Interests.
(v) Organization of MikeSam. MikeSam was a duly organized and
existing limited liability company in good standing under the
laws of California.
(w) Seller's Legal Capacity. Seller has the legal capacity to own his
distributed interest in the Xxxxxxx Interests and to enter into
and perform this Agreement As of the Closing Date, Seller shall
own all right, title and interest in and to the Xxxxxxx Interests
free and clear of all Liens.
(x) Status of MikeSam. MikeSam has all requisite power and authority
to own its properties and MikeSam is not insolvent within the
meaning of Section 1-201(23) of the Uniform Commercial Code. No
order has been made or petition presented or resolution adopted
which relates to the winding-up of MikeSam or for an
administration order in respect of MikeSam, nor has any
administrative receiver, receiver or receiver and manager been
appointed by any Governmental Authority or other Person with
respect to all or part of the assets of MikeSam, and no power to
make any such appointment has arisen. Seller has delivered to
Purchaser complete and correct copies of the Articles of
Organization (or comparable organizational documents) presently
in effect for MikeSam, and MikeSam is not in default under or in
violation of any provision of such documents.
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(y) MikeSam Qualification. MikeSam is qualified or licensed to do
business and is in good standing in California which is the only
jurisdiction in which the conduct of its business requires such
licensing or qualification.
(z) Seller's Due Authorization. This Agreement has been duly and
validly executed and delivered by Seller and, assuming due
authorization, execution and delivery by Salton, constitute valid
and binding legal obligations of the Seller, enforceable against
Seller in accordance with its terms.
(aa) Sale No Conflict with MikeSam Documents. Neither the execution,
delivery or performance of this Agreement nor the consummation of
the transactions contemplated hereby will (a) violate, conflict
with or result in any breach of any provision of the Articles of
Organization or Bylaws (or comparable organizational documents)
of MikeSam, (b) violate, conflict with or result in a violation
or breach of, or constitute a default (with or without due notice
or lapse of time or both) under, or permit the termination of, or
require any notice under, or require the consent of any other
party to, or result in the acceleration of, or entitle any party
to accelerate (whether as a result of a change in control of
MikeSam) any obligation or agreement, or result in the loss of
any benefit or the imposition of any fee or penalty, or give rise
to the creation of any Lien upon the property or assets of
MikeSam, or (c) violate any Rules (including foreign, federal and
state securities laws) of any Governmental Authority applicable
to MikeSam or the Seller.
(bb) No Filing Required. No filing or registration with, no notice to
and no permit, authorization, consent or approval of, any third
party or any Governmental Authority is necessary for the
consummation of the transactions contemplated by this Agreement.
(cc) Books and Records. The books and records of MikeSam are, and have
been, maintained in the usual, regular, ordinary and appropriate
manner by Seller or his agents, and all of the transactions of
MikeSam, if any, are properly reflected therein.
8. Representations and Warranties of Salton. Salton represents and
warrants and agrees with Seller that, as of the date hereof and up to
and including the date of closing that each of the following
representations is true and correct:
(a) Organization. Salton is a duly organized and existing corporation
under the laws of the State of Delaware.
(b) Corporate Authority. Salton has the corporate power under its
articles of incorporation and by laws to enter into and perform
this Agreement.
(c) Board Approval. The Board of Directors of Salton has, by
unanimous written consent in lieu of a special meeting,
authorized Salton to enter into and perform this Agreement.
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(d) Restrictions on Salton. There are no contracts currently in
effect which limit or restrict the right of Salton to enter into
or perform this Agreement except only that Salton may determine
that it requires consent from its lenders under the Second
Amended and Restated Credit Agreement dated January 7, 1999 by
and among Salton and Xxxxxxx Brothers Commercial Paper, Inc., as
Administrative Agent for the serveral lenders who are parties
from time to time to such agreement ("Credit Agreement") to enter
into and close the transactions contemplated by this Agreement.
(e) Shares Available. Salton has authorized but unissued shares of
Common Stock and shares of Common Stock held as Treasury shares
and has reserved, and shall continue to keep reserved for
issuance in connection with the Closing of this Agreement a
sufficient number of Shares to satisfy its obligation to deliver
the number of Shares necessary to close this Agreement.
(f) There are no existing uncured events of default on the part of
Salton under its Credit Agreement.
(g) Salton has authorized but unissued shares of Common Stock and
shares of Common Stock held as Treasury shares and has reserved,
and shall continue to keep reserved for issuance in connection
with the Closing of this Agreement a sufficient number of Shares
to satisfy its obligation to deliver the number of Shares
necessary to close this Agreement.
9. Demand Registration of Salton Shares.
(a) Requests for Registration. The holders of a majority of the
Salton Shares may make one request for registration under the
Securities Act of all or part of their Salton Shares on Form S-1
or any similar long-form registration ("Long-Form Registration")
or, if available, on Form S-2 or S-3 or any similar short-form
registration ("Short-Form Registration"). The request for a
Demand Registration (as defined below) shall specify the
approximate number of Salton Shares requested to be registered
and the anticipated per share price range for such offering.
Within ten days after receipt of any such request, Salton will
give written notice of such requested registration to all other
registered holders of the Salton Shares and, subject to Section 8
(b) below, will include in such registration all Salton Shares
with respect to which Salton has received written requests for
inclusion therein within fifteen (15) business days after the
receipt of Salton 's notice. The registration requested pursuant
to this Section 9 (a) is referred to herein as the "Demand
Registration." The holders of the Salton Shares taken together
will be entitled to request for their collective benefit only one
(1) Demand Registration. Salton will pay all Registration
Expenses (as defined in this Section 9 in connection with such
Demand Registration whether or not the Registration becomes
effective.
(b) Priority on Demand Registrations. Salton may include in the
Demand Registration securities of Salton which are not Salton
Shares without the consent of the holders of the Salton Shares to
be included in such registration unless the
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managing underwriters of the Demand Registration advise Salton in
writing that, in their opinion, the number of Salton Shares and
other securities of Salton requested to be included in such
offering exceeds the number of securities of Salton which can be
sold therein without adversely affecting the marketability of the
offering. If such managing underwriters so advise Salton, Salton
will include in such registration, prior to the inclusion of any
securities of Salton which are not Salton Shares, the number of
Salton Shares requested to be included, which in the opinion of
such underwriters, can be sold without adversely affecting the
marketability of the offering, pro rata among the respective
holders thereof on the basis of the number of shares of Salton
Shares owned by each such holder.
(c) Selection of Underwriters. The Demand Registration will be
managed by the holders of Salton Shares as follows: (i) the
holders of a majority of the Salton Shares included in the Demand
Registration will have the right to select the managing
underwriters to administer the offering, subject to Salton's
approval; and (ii) in consultation with the managing
underwriter(s), the holders of a majority of the Salton Shares
will have the power to determine the number of Salton Shares to
be included in the offering (subject to the applicable
limitations set forth herein), the offering price per Salton
Share, the underwriting discounts and commissions per Salton
Share, the timing of the registration (subject to the applicable
limitations set forth herein) and all other administrative
matters related to the registration.
(d) Piggyback Registrations.
(i) Option to Offer Piggyback. Whenever Salton proposes to
register any of its securities under the Securities Act and
the registration form to be used for the registration of
such securities (a"Piggyback Registration"), whether or not
for sale for its own account, Salton may elect to give
prompt written notice to the holders of Salton Shares of
its intention to effect such a registration and to include
in such registration all Salton Shares with respect to
which Salton has received written requests for inclusion
therein within 15 business days after the receipt of
Salton's notice, subject to the terms of this Section 9.
(ii) Piggyback Expenses. The Registration Expenses of the
holders of Salton Shares will be paid by Salton in all
Piggyback Registrations.
(iii) Loss of Demand Registration. If the holders off Salton
Shares sell or are offered the right to sell at least
seventy five percent (75%) of the total number of Salton
Shares issued at the Closing in one or more Piggy Back
Registrations, the holders of Salton Shares shall no longer
be entitled to receive a Demand Registration under this
Agreement.
(e) Holdback Agreements.
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(i) Each holder of Salton Shares agrees not to effect any
public sale or distribution (including sales pursuant to
Rule 144) of equity securities of Salton, or any
securities, options or rights convertible into or
exchangeable or exercisable for such securities, during the
seven (7) days prior to and the one hundred eighty (180)
day period beginning on the effective date of any
underwritten Demand Registration or any underwritten
Piggyback Registration (except as part of such underwritten
registration), unless the underwriters managing the
registered public offering otherwise agree.
(ii) Salton agrees (i) not to effect any public sale or
distribution of its equity securities, or any securities
convertible into or exchangeable or exercisable for such
securities, during the seven days prior to and during the
one hundred eighty (180) day period beginning on the
effective date of any underwritten Demand Registration or
any underwritten Piggyback Registration (except as part of
such underwritten registration or pursuant to registrations
on Form S-4 or S-8 or any successor form), unless the
underwriters managing the registered public offering
otherwise agree.
(f) Registration Procedures. Whenever the holders of Salton Shares
have requested that any Salton Shares be registered pursuant to
this Agreement, Salton will use its reasonable efforts to effect
the registration and the sale of such Salton Shares in accordance
with the intended method of disposition thereof and pursuant
thereto Salton will as expeditiously as possible:
(i) prepare and file with the Securities and Exchange
Commission such amendments and supplements to such
registration statement and the prospectus used in
connection therewith as may be necessary to keep such
registration statement effective for a period of either (i)
not less than six months (subject to extension pursuant to
Section 9 (h) or, if such registration statement relates to
an underwritten offering, such longer period as in the
opinion of counsel for the underwriters a prospectus is
required by law to be delivered in connection with sales of
Salton Shares by an underwriter or dealer or (ii) such
shorter period as will terminate when all of the securities
covered by such registration statement have been disposed
of in accordance with the intended methods of disposition
by the seller or sellers thereof set forth in such
registration statement (but in any event not before the
expiration of any longer period required under the
Securities Act), and to comply with the provisions of the
Securities Act with respect to the disposition of all
securities covered by such registration statement until
such time as all of such securities have been disposed of
in accordance with the intended methods of disposition by
the seller or sellers thereof set forth in such
registration statement;
(ii) furnish to each seller of Salton Shares such number of
copies of such registration statement, each amendment and
supplement thereto, the prospectus included in such
registration statement (including each preliminary
prospectus) and such other documents as such seller may
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reasonably request in order to facilitate the disposition
of the Salton Shares owned by such seller;
(iii) use its reasonable efforts to register or qualify the
Salton Shares under such other securities or blue sky laws
of such jurisdictions as any seller reasonably requests and
do any and all other acts and things which may be
reasonably necessary or advisable to enable such seller to
consummate the disposition in such jurisdictions of the
Salton Shares owned by such seller (provided that Salton
will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise
be required to qualify but for this subparagraph, (ii)
subject itself to taxation in any such jurisdiction or
(iii) consent to general service of process in any such
jurisdiction);
(iv) notify each seller of such Salton Shares, at any time when
the prospectus relating thereto is required to be delivered
under the Securities Act, upon discovery that, or upon the
discovery of the happening of any event as a result of
which, the prospectus included in such registration
statement contains an untrue statement of a material fact
or omits any fact necessary to make the statements therein
not misleading in the light of the circumstances under
which they were made, and, at the request of any such
seller, Salton will prepare and furnish to such seller a
reasonable number of copies of a supplement or amendment to
such prospectus so that, as thereafter delivered to the
purchasers of such Salton Shares, such prospectus will not
contain an untrue statement of a material fact or omit to
state any fact necessary to make the statements therein not
misleading in the light of the circumstances under which
they were made;
(v) enter into such customary agreements (including
underwriting agreements in customary form) and take all
such other actions as the holders of a majority of the
Salton Shares being sold or the underwriters, if any,
reasonably request in order to expedite or facilitate the
disposition of such Salton Shares;
(vi) make available for inspection by any seller of Salton
Shares, any underwriter participating in any disposition
pursuant to such registration statement and any attorney,
accountant or other agent retained by any such seller or
underwriter, all financial and other records, pertinent
corporate documents and properties of Salton, and cause
Salton's officers, directors, employees and independent
accountants to supply all information reasonably requested
by any such seller, underwriter, attorney, accountant or
agent in connection with such registration statement;
(vii) in the event of the issuance of any stop order suspending
the effectiveness of a registration statement, or of any
order suspending or preventing the use of any related
prospectus or suspending the
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qualification of any securities included in such registration
statement for sale in any jurisdiction, Salton will use
reasonable efforts promptly to obtain the withdrawal of such
order;
(viii) obtain one or more comfort letters, dated the effective
date of such registration statement (and, if such
registration includes an underwritten public offering,
dated the date of the closing under the underwriting
agreement), signed by Salton's independent public
accountants in customary form and covering such matters of
the type customarily covered by comfort letters as the
holders of a majority of the Salton Shares being sold
reasonably request (provided that such Salton Shares
constitute at least 10% of the securities covered by such
registration statement); and
(ix) provide a legal opinion of Salton's outside counsel, dated
the effective date of such registration statement (and, if
such registration includes an underwritten public offering,
dated the date of the closing under the underwriting
agreement), with respect to the registration statement,
each amendment and supplement thereto, the prospectus
included therein (including the preliminary prospectus) and
such other documents relating thereto in customary form and
covering such matters of the type customarily covered by
legal opinions of such nature.
(x) Salton may require each seller of Salton Shares as to which
any registration is being effected to furnish Salton such
information regarding such seller and the distribution of
such securities as Salton may from time to time reasonably
request in writing. .
(g) Registration Expenses. All expenses incident to Salton's
performance of or compliance with this Agreement, including,
without limitation, all registration and filing fees, fees and
expenses of compliance with securities or blue sky laws, printing
expenses, messenger and delivery expenses, salaries and expenses
of its officers and employees performing legal or accounting
duties, the expense of any annual audit or quarterly review, the
expense of any liability insurance, the expenses and fees for
listing the securities to be registered on the New York Stock
Exchange, and fees and disbursements of counsel for Salton and
all independent certified public accountants, underwriters
(excluding discounts and commissions) and other Persons retained
by Salton (all such expenses being herein called "Registration
Expenses"), will be borne by Salton.
(h) Delay of Registration. Notwithstanding the foregoing, Salton
shall have the right to delay the effectiveness of the
registration and of the listing of the Salton Shares for a period
of up to one hundred eighty (180) days if: there are, in Salton's
judgment, possible developments, events or actions which may
occur concerning Salton or its business which would be required
to be disclosed in a registration statement filed with the SEC,
which are not in the best interest of Salton to disclose and need
not be disclosed under the Securities Act unless and until such
developments, events or actions occur
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(i) Participation in Underwritten Xxxxxxxxxxxxx.Xx Person may
participate in any registration hereunder which is underwritten
unless such Person (i) agrees to sell such Person's securities on
the basis provided in any underwriting arrangements approved by
the Person or Persons entitled hereunder to approve such
arrangements (including, without limitation, pursuant to the
terms of any over-allotment or "green shoe" option requested by
the managing underwriter(s); provided, that no holder of
Registrable Securities will be required to sell more than the
number of Registrable Securities that such holder has requested
Salton to include in any registration) and (ii) completes and
executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required
under the terms of such underwriting arrangements.
10. Indemnification.
(a) Salton. Salton agrees to indemnify and hold harmless each holder
of Salton Shares, its officers and directors and each Person who
controls such holder (within the meaning of the Securities Act)
against any losses, claims, actions, proceedings, judgments,
damages and liabilities, joint or several, to which such holder
or any such director, officer or controlling person may become
subject to under the Securities Act or otherwise (collectively
"Loss"), insofar as such Loss arises out of or is based upon (i)
any untrue or alleged untrue statement of material fact contained
in any registration statement, prospectus or preliminary
prospectus or any amendment thereof or supplement thereto
(relating to the Salton Shares) or (ii) any omission or alleged
omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, and
Salton will reimburse such holder and each such director, officer
and controlling person for any legal or any other expenses
incurred by them in connection with investigating or defending
any such Loss; provided, however, that Salton shall not be liable
in any such case to the extent that any such Loss arises out of
or is based upon an untrue statement or alleged untrue statement,
or omission or alleged omission, made in such registration
statement, any such prospectus or preliminary prospectus or any
amendment or supplement thereto, or in any application, in
reliance upon, and in conformity with, written information
prepared and furnished to Salton by such holder expressly for use
therein or by such holder's failure to deliver a copy of the
registration statement or prospectus or any amendments or
supplements thereto after Salton has furnished such holder with a
sufficient number of copies of the same. In connection with an
underwritten offering, Salton will indemnify such underwriters,
their officers and directors and each Person who controls such
underwriters (within the meaning of the Securities Act) to the
same extent as provided above with respect to the indemnification
of the holders of Salton Shares.
(b) Seller. In connection with any registration statement in which a
holder of Salton Shares is participating, each such holder will
furnish to Salton in writing such information and affidavits as
Salton reasonably requests for use in connection with any such
registration statement or prospectus and, to the extent permitted
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by law, will indemnify and hold harmless each other holder of
Salton Shares, Salton, its directors and officers and each other
Person who controls Salton (within the meaning of the Securities
Act) against any Loss, joint or several, to which such other
holder, Salton or any such director or officer or controlling
person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or
actions or proceedings, whether commenced or threatened, in
respect thereof) arise out of or are based upon (i) any untrue or
alleged untrue statement of material fact contained in the
registration statement, prospectus or preliminary prospectus or
any amendment thereof or supplement thereto or in any application
or (ii) any omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements
therein not misleading, but only to the extent that such untrue
statement or omission is made in such registration statement, any
such prospectus or preliminary prospectus or any amendment or
supplement thereto, or in any application, in reliance upon and
in conformity with written information prepared and furnished to
Salton by such holder expressly for use therein, and such holder
will reimburse Salton and each such director, officer and
controlling Person and each other holder of Salton Shares for any
legal or any other expenses incurred by them in connection with
investigating or defending any such Loss.
(c) Notice; Defense. Any person entitled to indemnification hereunder
will (i) give prompt written notice to the indemnifying party of
any claim with respect to which it seeks indemnification and (ii)
unless in such indemnified party's reasonable judgment a conflict
of interest between such indemnified and indemnifying parties may
exist with respect to such claim, permit such indemnifying party
to assume the defense of such claim with counsel reasonably
acceptable to the indemnifying party. If such defense is assumed,
the indemnifying party will not be subject to any liability for
any settlement made by the indemnified party without its consent
(but such consent will not be unreasonably withheld). An
indemnifying party who is not entitled to, or elects not to,
assume the defense of a claim will not be obligated to pay the
fees and expenses of more than one counsel for all parties
indemnified by such indemnifying party with respect to such
claim, unless in the reasonable judgment of any indemnified party
a conflict of interest may exist between such indemnified party
and any other of such indemnified parties with respect to such
claim.
(d) Survival. The indemnification provided for under this Agreement
will remain in full force and effect regardless of any
investigation made by or on behalf of the indemnified party or
any officer, director or controlling person of such indemnified
party and will survive the transfer of securities. Salton also
agrees to make such provisions, as are reasonably requested by
any indemnified party, for contribution to such party in the
event Salton's indemnification is unavailable for any reason. .
11. Survival of Representations, Warranties. All representations and
warranties of Seller and Salton contained herein shall survive the
Closing Date and shall terminate at the
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close of twenty four (24) full calendar months next following the
Closing Date. Upon the termination of a representation or warranty in
accordance with the foregoing, the representation or warranty shall
have no further force or effect for any purpose under this Agreement,
provided that, any representation or warranty in respect of which
indemnity may be sought under Section 13 and the indemnity with
respect thereto, shall survive the date at which it would otherwise
terminate pursuant to this Section 12 if written notice of the
inaccuracy or breach thereof giving rise to such right of indemnity
shall have been given to the party against whom such indemnity may be
sought prior to such time.
12. Indemnification.
(a) By Seller. Seller shall defend and indemnify Salton, and its
officers and directors, and hold each of them harmless from and
against any and all claims, demands, actions, suits, judgments,
liability and loss, including legal fees and expenses and court
costs (collectively "Loss") incurred by any of them in connection
with, arising out of, or resulting from (i) any breach of any
representation or warranty made by Seller in this Agreement; or
(ii) any failure by Seller to perform in a timely manner any
agreement, covenant or obligation of Seller pursuant to this
Agreement.
(b) By Salton. Salton shall defend and indemnify Seller, and its
officers and directors, and hold each of them harmless from and
against any and all Loss incurred by each of them in connection
with, arising out of or resulting from (i) any breach or
inaccuracy of any representation or warranty made by Salton in
this Agreement or (ii) any failure by Salton to perform in a
timely manner any agreement, covenant or obligation of Salton
pursuant to this Agreement.
(c) Defense of Claims. If a claim for Loss (a "Claim") is to be made
by a party entitled to indemnification hereunder (the
"Indemnified Party") against the party from whom indemnification
is claimed (the "Indemnifying Party"), the Indemnified Party
shall give written notice (a "Claim Notice") to the Indemnifying
Party as soon as practicable after the Indemnified Party becomes
aware of any fact, condition or event which may give rise to Loss
for which indemnification may be sought under this Section 13. If
any lawsuit or enforcement action is filed against any party
entitled to the benefit of indemnity hereunder, written notice
thereof shall be given to the Indemnifying Party as promptly as
practicable (and in any event within ten (10) business days after
the service of the citation or summons). The failure of any
Indemnified Party to give timely notice hereunder shall not
affect rights to indemnification hereunder, except to the extent
that the Indemnifying Party demonstrates actual Loss caused by
such failure. Notwithstanding the foregoing, a Claim Notice must
be made within the survival period set forth in Section 12,
whether or not the Indemnifying Party is prejudiced by any
failure to give the Claim Notice. The Claim Notice shall describe
in reasonable detail the nature of the Claim, including an
estimate of the amount of Loss that have been or may be suffered
or incurred by the Indemnified Party attributable to such Claim,
the basis of the Indemnified Party's request for indemnification
under the Agreement and all
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information in the Indemnified Party's possession relating to such
Claim. After receipt of such Claim Notice, the Indemnifying Party
shall be entitled, if it so elects, at its own cost, risk and expense,
(i) to take control of the defense and investigation of such lawsuit
or action and (ii) to employ and engage attorneys of its own choice to
handle and defend the same, provided however that the attorneys shall
be reasonably acceptable to the Indemnified Party. If the Indemnifying
Party fails to assume the defense of such Claim within ten (10)
business days after receipt of the Claim Notice, the Indemnified Party
against which such Claim has been asserted will (upon delivering
notice to such effect to the Indemnifying Party) have the right to
undertake, at the Indemnifying Party's cost and expense, the defense,
compromise or settlement of such Claim on behalf of and for the
account and risk of the Indemnifying Party; provided, however, that
such Claim shall not be compromised or settled without the written
consent of the Indemnified Party, which consent shall not be
unreasonably withheld. In the event the Indemnifying Party assumes the
defense of the Claim, the Indemnifyong Party will keep the Indemnified
Party reasonably informed of the progress of any such defense,
compromise or settlement. Notwithstanding the foregoing, the
Indemnified Party shall be entitled to conduct its own defense at the
cost and expense of the Indemnifying Party if the Indemnified Party
establishes that the conduct of its defense by the Indemnifying Party
would reasonably be likely to prejudice materially the Indemnified
Party due to a conflict of interest between the Indemnified Party and
the Indemnifying Party; and provided further that in any event the
Indemnified Party may participate in such defense at its own expense.
(d) Settlement. In the event that the Indemnified Party settles any
Claim without the prior written consent of the Indemnifying
Party, the Indemnifying Party shall have no further
indemnification obligations under this Section 13 with respect to
such Claim; provided, however, that if the Indemnifying Party
refuses to defend or otherwise handle such Claim and it is
subsequently determined that the Indemnifying Party is or was
obligated to defend or indemnify the Indemnified Party with
respect to such Claim, then the Indemniying Party shall remain
obligated with respect to such settlement amount. If the
Indemnifying Party shall control the defense of any such Claim,
the Indemnifying Party shall obtain the prior written consent of
the Indemnified Party (which shall not be unreasonably withheld)
before entering into any settlement of a Claim or ceasing to
defend such Claim if, pursuant to or as a result of such
settlement or cessation, injunctive or other equitable relief
shall be imposed against the Indemnified Party or if such
settlement or cessation does not expressly and unconditionally
release the Indemnified Party from all liabilities and
obligations with respect to such Claim, without prejudice. In the
event that the Indemnifying Party proposes a settlement to any
Claim with respect to which the Indemnifying Party is or was
entitled to defend, which settlement is satisfactory to the party
instituting such Claim, and the Indemnified Party withholds its
consent to such settlement, and thereafter a final judgment is
entered against the Indemnifying Party or Indemnified Party
pursuant to which Loss exceeds the amount of the proposed
settlement, then in such case the Indemnifying Party shall have
no obligation to indemnify the Indemnified Party under this
Section 12 against and in respect of
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the amount by which the Loss resulting from such final judgment exceed
the amount of the proposed settlement.
(e) Mitigation. Each Indemnified Party shall have an obligation to
mitigate Loss under this Agreement, and to that end each party
shall use its reasonable efforts and shall consult and cooperate
with each other with a view towards mitigating Loss, costs and
expenses that may give rise to claims for indemnification under
this Section 12.
(f) Cooperation. In the event that any action, suit, proceeding or
investigation relating hereto or to the transactions contemplated
by this Agreement is commenced, whether before or after the
Closing, the parties hereto agree to cooperate and use reasonable
efforts to vigorously defend against and respond thereto and make
available to each other such personnel, witnesses, books,
records, documents or other information within its control that
are necessary or appropriate for such defense; provided that,
subject to Section 12, the Indemnifying Party shall reimburse the
Indemnified Party for its out of pocket expenses incurred in
connection therewith.
(g) Insurance Proceeds. With respect to any Claim required to be
indemnified pursuant to this Agreement, so long as the
Indemnifying Party has complied with its indemnification
obligations on such Claim, (i) to the extent available, the
Indemnified Party shall assign to the Indemnifying Party any
applicable proceeds under any insurance policy which covers the
matter which is the subject of the indemnification and shall take
reasonable steps to insure that the Indemnifying Party obtains
the benefits of such policy, including providing any notices as
required under such policy; and (ii) if the Indemnified Party
receives insurance proceeds with respect to any Loss paid by the
Indemnifying Party, then the Indemnified Party shall reimburse
the Indemnifying Party in an amount equivalent to such proceeds
up to the amount actually paid by the Indemnifying Party.
(h) Offset. If a Put or a Call is exercised under this Agreement,
following the Closing of this Agreement, in addition to any other
remedies set forth herein for the benefit of Salton, upon any
breach by Seller of any representation, warranty or agreement by
Seller set forth in this Agreement, including the indemnification
provisions of this Section 12, Salton shall have the right to
offset any amounts or any performance owing by Salton to Seller
under this Agreement or any other agreement between Seller and
Salton any the amount of any Loss incurred by Salton by reason of
such breach by Seller.
13. Definitions. As used in this Agreement, the following capitalized
terms shall have the following meaning.
"Affiliate" shall mean (i) a Person that directly or indirectly,
through one or more intermediaries, controls, is controlled by, or is under
common control with, another Person and (ii) any parent, spouse, lineal
descendant or adopted child of a Person specified in clause (i), any spouse or
adopted child of any such descendant or any child of such spouse, the executors,
administrators,
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conservators or personal representatives of any Person referred to in this
clause (ii) and any Person which, directly or indirectly, is owned or controlled
by one or more of the Persons referred to in this clause (ii);
"Affiliated Group" means any affiliated group as defined in Section
1504 of the Code (or any analogous combined, consolidated or unitary group under
state, local or foreign income Tax law) of which the Company or any of its
Affiliates is or has been a member;
"Claims" shall mean all pending and threatened claims, actions, causes
of action, demands, orders, notices, suits, grievances, proceedings, disputes,
arbitrations and investigations;
"Environmental Claim" shall mean any Claim (written or oral) by any
Person or any Governmental Authority alleging potential Liability or obligations
(including potential Liability or obligations for or requirement to incur
investigatory costs, cleanup costs, governmental response costs, natural
resources damages, property damages, personal injuries, or penalties) arising
out of, based on or resulting from (i) the presence, release or threatened
release into the environment, of any Materials of Environmental Concern at any
location, whether or not owned or operated by the Company, or (ii) circumstances
forming the basis of any violation, potential violation or alleged violation, or
Liability, potential Liability or alleged Liability, under any Environmental
Law;
"Environmental Laws" shall mean all Rules and permit conditions
relating to pollution or protection of human health or the environment
(including ambient air, indoor air, surface water, ground water, land surface or
subsurface strata), including Rules relating to emissions, discharges, releases
or threatened releases of Materials of Environmental Concern, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of Materials of Environmental Concern;
"Governmental Authority" shall mean any court (federal, state, local,
foreign or otherwise), any arbitration or other alternative dispute mechanism,
any federal, state, local, foreign or other government or governmental
department, agency, board, commission, bureau or instrumentality and any other
regulatory authority;
"Liability" means any liability (whether known or unknown, whether
asserted or unasserted, whether absolute or contingent, whether accrued or
unaccrued, whether liquidated or unliquidated, and whether due or to become
due), including any liability for Taxes;
"Liens" shall mean all title defects, charges, claims, restrictions,
liens, pledges, security interests, mortgages, tenancies and other possessory
interests, conditional sale or other title retention agreements, assessments,
easements, rights of way, covenants, restrictions, rights of first refusal,
encroachments and other burdens, options, restrictions or encumbrances of any
kind;
"Person" shall mean an individual, corporation, limited liability
company, partnership, joint venture, association, trust, unincorporated
organization or, as applicable, any other entity;
"Rules" shall mean any federal, state, local or foreign statute, law,
code, ordinance, rule, regulation, judgment, writ, decree, injunction, order,
concession, grant, franchise, permit or license or other governmental or
regulatory authorization or approval applicable to the Company or any of the
Stockholders or any of their respective assets, properties or operations or any
Plan;
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14. Miscellaneous.
(a) Notices. All notices, requests, demands and other communications
which are required or may be given under this Agreement shall be
in writing and shall be deemed to have been duly given when
received if personally delivered; when transmitted if transmitted
by telecopy, electronic or digital transmission method and
followed by a confirmation of receipt from the recipient of the
notice ; the day after it is sent, if sent for next day delivery
to a domestic address by recognized overnight delivery service
(e.g., DHL); and upon receipt, if sent by certified or registered
mail, return receipt requested. In each case notice shall be sent
as indicated below:
If to Seller:
Xxx Xxxxxxxxxx
0000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxxxx, XX 00000
Tel: (000) 000-0000
Fax: (000) 000-0000
If to Salton, addressed to:
Salton, Inc.
000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxx Xxxxxxxx, Xx 00000
Attn: Xxxx Xxxxxxxx,
Chief Executive Officer
Tel: 000 000 0000
Fax: (000) 000-0000
(b) Choice of Law. This Agreement shall be construed, interpreted and
the rights of the parties determined in accordance with the laws
of the State of Delaware (without reference to its choice of law
provisions).
(c) Entire Agreement; Amendments and Waivers. This Agreement, ,
together with all exhibits and schedules hereto and thereto , and
the constitute the entire agreement among the parties pertaining
to the subject matter hereof and supersede all prior agreements,
understandings, negotiations and discussions, whether oral or
written, of the parties. This Agreement may not be amended except
by an instrument in writing signed on behalf of each of the
parties hereto. No amendment, supplement, modification or waiver
of this Agreement shall be binding unless executed in writing by
the party to be bound thereby. No waiver of any of the provisions
of this Agreement shall be deemed or shall constitute a waiver of
any other provision hereof (whether or not similar), nor shall
such waiver constitute a continuing waiver unless otherwise
expressly provided.
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(d) Multiple Counterparts. This Agreement may be executed in one or
more counterparts, each of which shall be deemed an original, but
all of which together shall constitute one and the same
instrument.
(e) Invalidity. In the event that any one or more of the provisions
contained in this Agreement or in any other instrument referred
to herein, shall, for any reason, be held to be invalid, illegal
or unenforceable in any respect, then to the maximum extent
permitted by law, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement or any
other such instrument.
(f) Titles; Gender. The titles, captions or headings of the Sections
herein, and the use of a particular gender, are for convenience
of reference only and are not intended to be a part of or to
affect or restrict the meaning or interpretation of this
Agreement.
(g) Waiver of Trial by Jury. Each party to this Agreement hereby
expressly waives any right to trial by jury of any claim, demand,
action or cause of action arising under or in connection with
this Agreement or the transaction contemplated hereby.
(h) Interpretation. The headings and captions contained in this
Agreement and in the Schedules hereto are for reference purposes
only and shall not affect in any way the meaning or
interpretation of this Agreement.
(i) Further Assurances. Each of Seller and Salton will use reasonable
efforts to implement the provisions of this Agreement, including
but not limited to the execution and delivery of such other
documents (including any license, assignment or assumption
agreement, official certificates of registration, renewals,
transfers or other documents supporting ownership of trademarks)
in addition to those required by this Agreement, in form and
substance reasonably satisfactory to the other party, as may be
reasonably deemed necessary to implement any provision of this
Agreement.
IN WITNESS WHEREOF, this Agreement has been signed on behalf of each of
the parties hereto as the date first written above.
SALTON, INC.
a Delaware Corporation
/s/ Xxxx Xxxxxxxx /s/ Xxx Xxxxxxxxxx
----------------------------------- --------------------------
Name: Xxxx Xxxxxxxx Name: Xxx Xxxxxxxxxx
Title: Chief Executive Officer
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