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EXHIBIT 99.1
STOCKHOLDERS AGREEMENT
STOCKHOLDERS AGREEMENT dated ("Agreement") as of August 26, 1998 by and
between Salton/Maxim Housewares, Inc., a Delaware corporation ("Acquiror"), and
the other parties signatory hereto (each a "Stockholder").
RECITALS
Concurrently herewith, Acquiror, Salt Acquisition Corp., a Missouri
corporation ("Newco"), and Toastmaster Inc., a Missouri corporation (the
"Company"), are entering into an Agreement and Plan of Merger of even date
herewith (as such agreement may be amended from time to time, the "Merger
Agreement"; capitalized terms used but not defined herein shall have the
meanings set forth in the Merger Agreement) pursuant to which (and subject to
the terms and conditions specified therein) Newco will be merged with and into
the Company (the "Merger"), whereby each share of common stock, par value $.10
per share, of the Company ("Company Common Stock") issued and outstanding
immediately prior to the Effective Time will be converted into the right to
receive $7.00 cash, other than (i) shares of Company Common Stock owned,
directly or indirectly, by the Company or any subsidiary of the Company or by
Acquiror and (ii) Dissenting Shares.
As a condition to Acquiror's entering into the Merger Agreement, Acquiror
requires that each Stockholder enter into, and each such Stockholder has agreed
to enter into, this Agreement with Acquiror.
AGREEMENT
To implement the foregoing and in consideration of the mutual agreements
contained herein, the parties hereby agree as follows:
1. Representations and Warranties of Stockholders. Each Stockholder
hereby severally and not jointly represents and warrants to Acquiror as follows:
(a) OWNERSHIP OF SHARES. (i) Such Stockholder is either (i) the record
holder or beneficial owner, either alone or with such Stockholder's spouse,
of the number of or (ii) trustee of a trust that is the record holder or
beneficial owner of, and whose beneficiaries are the beneficial owners
(such trustee, a "Trustee") of shares of Company Common Stock as is set
forth opposite such Stockholder's name on Schedule I hereto (such shares
shall constitute the "Existing Shares", and together with any shares of
Company Common Stock acquired of record or beneficially by such Stockholder
in any capacity after the date hereof and prior to the termination hereof,
whether upon exercise of options, conversion of convertible securities,
purchase, exchange or otherwise, shall constitute the "Shares").
(ii) On the date hereof, the Existing Shares set forth opposite
such Stockholder's name on Schedule I hereto constitute all of the
outstanding shares
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of Company Common Stock owned of record or beneficially by such
Stockholder. Such Stockholder does not have record or beneficial
ownership of any Shares not set forth on Schedule I hereto.
(iii) Such Stockholder has sole power, or shared power with such
Stockholder's spouse, of disposition with respect to all of the
Existing Shares set forth opposite such Stockholder's name on Schedule
I and sole power, or shared power with such Stockholder's spouse, to
demand dissenter's or appraisal rights, in each case with respect to
all of the Existing Shares set forth opposite such Stockholder's name
on Schedule I, with no restrictions on such rights, subject to
applicable federal securities laws and the terms of this Agreement.
(b) POWER; BINDING AGREEMENT. Such Stockholder has the legal capacity,
power and authority to enter into and perform all of such Stockholder's
obligations under this Agreement. The execution, delivery and performance
of this Agreement by such Stockholder will not violate any other agreement
to which such Stockholder is a party or by which such Stockholder is bound
including, without limitation, any trust agreement, voting agreement,
stockholders agreement, voting trust, partnership or other agreement. This
Agreement has been duly and validly executed and delivered by such
Stockholder and constitutes a valid and binding agreement of such
Stockholder, enforceable against such Stockholder in accordance with its
terms. There is no beneficiary of or holder of interest in any trust of
which a Stockholder is Trustee whose consent is required for the execution
and delivery of this Agreement or the consummation of the transactions
contemplated hereby. If such Stockholder is married and such Stockholder's
Shares constitute community property, this Agreement has been duly
authorized, executed and delivered by, and constitutes a valid and binding
agreement of, such Stockholder's spouse, enforceable against such person in
accordance with its terms. The Stockholders Agreement dated November 13,
1991, as amended on December 30, 1993 (as so amended, the "Existing
Stockholders Agreement"), has been amended so that the provisions of the
Existing Stockholders Agreement will not apply to the Acquiror Option.
(c) NO CONFLICTS. Except for filings under the Xxxx-Xxxxx-Xxxxxx
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), if
applicable, and the expiration or termination of any applicable waiting
period thereunder, (A) no filing with, and no permit, authorization,
consent or approval of, any state or federal public body or authority is
necessary for the execution of this Agreement by such Stockholder and the
consummation by such Stockholder of the transactions contemplated hereby
and (B) neither the execution and delivery of this Agreement by such
Stockholder nor the consummation by such Stockholder of the transactions
contemplated hereby nor compliance by such Stockholder with any of the
provisions hereof shall (x) conflict with or result in any breach of any
applicable trust, partnership agreement or other agreements or
organizational documents applicable to such Stockholder, (y) result in a
violation or breach of, or constitute (with or without notice or lapse of
time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or
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acceleration) under any of the terms, conditions or provisions of any note,
bond, mortgage, indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any kind to
which such Stockholder is a party or by which such Stockholder or any of
such Stockholder's properties or assets may be bound or (z) violate any
order, writ, injunction, decree, judgment, statute, rule or regulation
applicable to such Stockholder or any of such Stockholder's properties or
assets.
(d) Such Stockholder's Shares and the certificates representing such
Shares are now and at all times during the term hereof will be held by such
Stockholder, or by a nominee or custodian for the benefit of such
Stockholder, free and clear of all liens, claims, security interests,
proxies, voting trusts or agreements, understandings or arrangements or any
other encumbrances whatsoever, except for any such encumbrances or proxies
arising hereunder.
(e) No broker, investment banker, financial adviser or other person is
entitled to any broker's, finder's, financial adviser's or other similar
fee or commission in connection with the transactions contemplated hereby
based upon arrangements made by or on behalf of such Stockholder in his or
her capacity as such.
(f) Such Stockholder understands and acknowledges that Acquiror is
entering into the Merger Agreement in reliance upon such Stockholder's
execution and delivery of this Agreement with Acquiror.
2. OPTION GRANTED TO ACQUIROR. (a) Each Stockholder, severally and not
jointly, hereby grants to Acquiror an irrevocable option to purchase all, but
not less than all, of such Stockholder's Shares at any time prior to the
termination of the Merger Agreement in accordance with its terms, on the terms
and subject to the conditions set forth herein (collectively, with respect to
all the Stockholder's Shares, the "Acquiror Option"), which Acquiror Option
shall attach to each Stockholder's Shares and be binding upon any person or
entity to which legal or beneficial ownership of such Shares shall pass, whether
by operation of law or otherwise, including without limitation such
Stockholder's heirs, guardians, administrators or successors or as a result of
any divorce.
(b) If Acquiror wishes to exercise the Acquiror Option, Acquiror shall
send a written notice to each Stockholder of its election to exercise the
Acquiror Option, any time prior to the Closing, which exercise shall be
subject to the fulfillment of the conditions specified in Section 2(e)
hereof. The place and date of the closing of the Acquiror Option ("Acquiror
Option Closing") shall be the same as the Closing, and the time of the
Acquiror Option Closing shall be immediately prior to the Closing.
(c) At the Acquiror Option Closing, each Stockholder shall deliver to
Acquiror all of such Stockholder's Shares by delivery of a certificate or
certificates evidencing such Shares, duly endorsed to Acquiror or
accompanied by stock powers duly executed
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in favor of Acquiror, with all necessary stock transfer stamps affixed
(provided that the cost of such transfer stamps is reimbursed by Acquiror).
(d) At the Acquiror Option Closing, Acquiror shall pay to the
Stockholders, by wire transfer in immediately available funds to the
account of such Stockholders specified in writing no more than one business
day prior to the Acquiror Option Closing, an amount equal to the product of
$7.00 and the number of Shares purchased pursuant to the exercise of the
Acquiror Option.
(e) Each of the following conditions must be satisfied at the time the
Acquiror Option is exercised and at the time of the Acquiror Option
Closing:
(i) no court, arbitrator or governmental body, agency or
official shall have issued any order, decree or ruling (which has not
been stayed or suspended pending appeal) and there shall not be any
effective statute, rule or regulation, restraining, enjoining or
prohibiting the consummation of the purchase and sale of the Shares
pursuant to the exercise of the Acquiror Option;
(ii) any waiting period applicable to the consummation of the
purchase and sale of the Shares pursuant to the exercise of the
Acquiror Option under the HSR Act shall have expired or been
terminated; and
(iii) all of the conditions set forth in Article VII of the Merger
Agreement shall have been satisfied or waived.
3. CERTAIN COVENANTS OF STOCKHOLDERS. Except in accordance with the
terms of this Agreement, each Stockholder hereby severally covenants and agrees
as follows:
3.1 NO SOLICITATION. Prior to the termination of the Merger Agreement
in accordance with its terms, no Stockholder shall, in its capacity as such,
directly or indirectly (including through advisors, agents or other
intermediaries), solicit (including by way of furnishing information) or respond
to any inquiries or the making of any proposal by any person or entity (other
than Acquiror, Newco or any affiliate thereof) with respect to the Company that
constitutes or could reasonably be expected to lead to an Acquisition Proposal
(as defined in Section 6.7 in the Merger Agreement), provided, however, that the
foregoing shall not restrict a Stockholder who is also a director of the Company
from taking actions in such Stockholder's capacity as a director to the extent
and in the circumstances permitted by Section 6.7 of the Merger Agreement. If
any Stockholder in its capacity as such receives any such inquiry or proposal,
then such Stockholder shall promptly inform Acquiror of the terms and
conditions, if any, of such inquiry or proposal and the identity of the person
making it. Each Stockholder, in its capacity as such, will immediately cease and
cause to be terminated any existing activities, discussions or negotiations with
any parties conducted heretofore with respect to any of the foregoing.
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3.2 RESTRICTION ON TRANSFER, PROXIES AND NONINTERFERENCE; RESTRICTION
ON WITHDRAWAL. Prior to the termination of the Merger Agreement in accordance
with its terms, no Stockholder shall, directly or indirectly: (i) except
pursuant to the terms of the Merger Agreement and to Acquiror pursuant to this
Agreement, offer for sale, sell, transfer, tender, pledge, encumber, assign or
otherwise dispose of, enforce or permit the execution of the provisions of any
redemption agreement with the Company or enter into any contract, option or
other arrangement or understanding with respect to or consent to the offer for
sale, sale, transfer, tender, pledge, encumbrance, assignment or other
disposition of, or exercise any discretionary powers to distribute, any or all
of such Stockholder's Shares or any interest therein, including any trust income
or principal, except in each case to a Permitted Transferee who is or agrees in
a writing executed by the Acquiror to become bound by this Agreement; (ii) grant
any proxies or powers of attorney with respect to any Shares, deposit any Shares
into a voting trust or enter into a voting agreement with respect to any Shares;
or (iii) take any action that would make any representation or warranty of such
Stockholder contained herein untrue or incorrect or have the effect of
preventing or disabling such Stockholder from performing such Stockholder's
obligations under this Agreement. For purposes of the Agreement, "Permitted
Transferees" means, with respect to a Stockholder, any of the following persons:
(a) the spouse of such Stockholder, provided that at all relevant times of
determination such Stockholder is not separated or divorced from, or is not
involved in separation or divorce proceedings with, such spouse; (b) the issue
of such Stockholder; (c) any charitable foundation or similar organization
founded by such Stockholder; (d) a trust of which there are no principal
beneficiaries other than (i) such Stockholder, (ii) such Stockholder's spouse
(provided that at all relevant times of determination such Stockholder is not
separated or divorced from, or is not involved in separation or divorce
proceedings with, such spouse), (iii) the issue of such Stockholder, or (iv) any
charitable foundation or similar organization founded by such Stockholder; (e)
the legal representative of such Stockholder in the event such Stockholder
becomes mentally incompetent; and (f) the beneficiaries under (i) the will of
such Stockholder or the will of such Stockholder's spouse, or (ii) a trust
described in clause (d) above. Notwithstanding anything herein to the contrary,
Xxxxxx X. Xxxxxx and/or Xxxxxxx X. Xxxxxx may donate in the aggregate up to
200,000 Shares to the University of Colorado Foundation and/or the Xxxxxx X. and
Xxxxxxx X. Xxxxxx Foundation, tax exempt organizations.
3.3 WAIVER OF APPRAISAL AND DISSENTER'S RIGHTS. Each Stockholder
hereby waives any rights of appraisal or rights to dissent from the Merger that
such Stockholder may have. Each Trustee represents that no beneficiary who is a
beneficial owner of Shares under any trust has any right of appraisal or right
to dissent from the Merger which has not been so waived.
3.4 NO TERMINATION OR CLOSURE OF TRUSTS. Unless, in connection
therewith, the Shares held by any trust which are presently subject to the terms
of this Agreement are transferred upon termination to one or more Stockholders
and remain subject in all respects to the terms of this Agreement, or other
Permitted Transferees who upon receipt of such Shares become signatories to this
Agreement, the Stockholders who are Trustees shall not take any action to
terminate, close or liquidate any such trust and shall take all steps necessary
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to maintain the existence thereof at least until the termination of the Merger
Agreement in accordance with its terms.
4. FURTHER ASSURANCES. From time to time, at the other party's request and
without further consideration, each party hereto shall execute and deliver such
additional documents and take all such further action as may be necessary or
desirable to consummate and make effective, in the most expeditious manner
practicable, the transactions contemplated by this Agreement.
5. CERTAIN EVENTS. Each Stockholder agrees that this Agreement and the
obligations hereunder shall attach to such Stockholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or otherwise, including without
limitation such Stockholder's heirs, guardians, administrators or successors or
as a result of any divorce.
6. STOP TRANSFER. Each Stockholder agrees with, and covenants to, Acquiror
that such Stockholder shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any of such Stockholder's Shares, unless such transfer is made in
compliance with this Agreement.
7. TERMINATION. In the event the Merger Agreement is terminated in
accordance with its terms, the obligations set forth in this Agreement shall
also terminate.
8. MISCELLANEOUS.
8.1 Entire Agreement; Assignment. This Agreement, together with the
Merger Agreement (and the Exhibits and Schedule thereto) and the Confidentiality
Agreement (i) constitute the entire agreement between the parties with respect
to the subject matter hereof and supersedes all other prior agreements and
understandings, both written and oral, between the parties with respect to the
subject matter hereof and (ii) shall not be assigned by operation of law or
otherwise without the prior written consent of the other party.
8.2 AMENDMENTS. This Agreement may not be modified, amended, altered
or supplemented, except upon the execution and delivery of a written agreement
executed by the parties hereto; provided that Schedule I may be supplemented by
Acquiror by adding the name and other relevant information concerning any
stockholder of the Company who is or agrees to be bound by the terms of this
Agreement without the agreement of any other party hereto, and thereafter such
added stockholder shall be treated as a "Stockholder" for all purposes of this
Agreement.
8.3 NOTICES. All notices and other communications hereunder shall be
in writing and shall be deemed to have been duly given; as of the date of
delivery, if delivered personally; upon receipt of confirmation, if telecopied
or upon the next business day when delivered during normal business hours to an
overnight courier service, such as Federal Express, in each case to the parties
at the following addresses or at such other addresses as shall be
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specified by the parties by like notice; unless the sending party has knowledge
that such notice or other communication hereunder was not received by the
intended recipient:
If to the Stockholders:
Toastmaster Inc.
0000 Xxxxx Xxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Chairman
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxx, Mag & Fizzell P.C.
0000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, Xxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Telecopy: (000) 000-0000
If to Acquiror:
Salton/Maxim Housewares, Inc.
000 Xxxxxxxx Xxxxxx Xxxxx
Xxxxx Xxxxxxxx, Xxxxxxxx 00000
Attn: Chairman
Telecopy: (000) 000-0000
with a copy to:
Xxxxxxxxxxxx Xxxx & Xxxxxxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxxxx, Esq.
Telecopy: (000) 000-0000
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
8.4 GOVERNING LAW. The validity, interpretation and effect of this
Agreement shall be governed exclusively by the laws of the State of Missouri,
without giving effect to the principles of conflict of laws thereof.
8.5 ENFORCEMENT. The parties agree that irreparable damage would occur
in the event that any of the provisions of this Agreement were not performed in
accordance with
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their specific terms or were otherwise breached. It is accordingly agreed that
the parties shall be entitled to an injunction or injunctions to prevent
breaches of this Agreement and to enforce specifically the terms and provisions
of this Agreement.
8.6 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but both of which
shall constitute one and the same Agreement.
8.7 DESCRIPTIVE HEADINGS. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
8.8 SEVERABILITY. If any term or provision of this Agreement or the
application thereof to any party or set of circumstances shall, in any
jurisdiction and to any extent, be finally held invalid or unenforceable, such
term or provision shall only be ineffective as to such jurisdiction, and only to
the extent of such invalidity or unenforceability, without invalidating or
rendering unenforceable any other terms or provisions of this Agreement under
any other circumstances, and the parties shall negotiate in good faith a
substitute provision which comes as close as possible to the invalidated or
unenforceable term or provision, and which puts each party in a position as
nearly comparable as possible to the position it would have been in but for the
finding of invalidity or unenforceability, while remaining valid and
enforceable.
8.9 DEFINITIONS; CONSTRUCTION. For purposes of this Agreement:
(a) "Beneficially Own" or "Beneficial Ownership" with respect to
any securities shall mean having "beneficial ownership" of such
securities (as determined pursuant to Rule 13d-3 under the Exchange
Act), including pursuant to any agreement, arrangement or
understanding, whether or not in writing. Without duplicative counting
of the same securities by the same holder, securities Beneficially
Owned by a Person shall include securities Beneficially Owned by all
other Persons with whom such Person would constitute a "group" as
described in Section 13(d)(3) of the Exchange Act.
(b) "Person" shall mean an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization or other
entity.
(c) In the event of a stock dividend or distribution, or any
change in the Company Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the
like, the term "Shares" shall be deemed to refer to and include the
Shares as well as all such stock dividends and distributions and any
shares into which or for which any or all of the Shares may be changed
or exchanged. In addition, in the event of any change in the Company's
capital stock by reason of stock dividends, stock splits, mergers,
consolidations, recapitalizations, combinations, conversions, exchanges
of shares, extraordinary or liquidating dividends, or other changes in
the
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corporate or capital structure of the Company which would have the
effect of diluting or changing the Acquiror's rights hereunder, the
number and kind of shares or securities subject to the Option and the
purchase price per Share (but not the total purchase price) shall be
appropriately and equitably adjusted so that the Acquiror shall receive
upon exercise or the Acquiror Option the number and class of shares or
other securities or property that the Acquiror would have received in
respect of the Shares purchasable upon exercise of the Acquiror Option
if the Acquiror Option had been exercised immediately prior to such
event. Each Stockholder shall take such steps in connection with such
consolidation, merger, liquidation or other such action as may be
necessary to assure that the provisions hereof shall thereafter apply
as nearly as possible to any securities or property thereafter
deliverable upon exercise of the Acquiror Option.
8.10 STOCKHOLDER CAPACITY. Notwithstanding anything herein to the
contrary, no person executing this Agreement who is, or becomes during the term
hereof, a director of the Company makes any agreement or understanding herein in
his or her capacity as such director, and the agreements set forth herein shall
in no way restrict any director in the exercise of his or her fiduciary duties
as a director of the Company. Each Stockholder has executed this Agreement
solely in his or her capacity as the record or beneficial holder of such
Stockholder's Shares or as the trustee of a trust whose beneficiaries are the
beneficial owners of such Stockholder's Shares.
IN WITNESS WHEREOF, Acquiror and each Stockholder have caused this
Agreement to be duly executed as of the day and year first above written.
______________________________________ SALTON/MAXIM HOUSEWARES, INC.
Xxxx X. Xxxxxxxx
______________________________________ By:_________________________________
Xxxxxx X. Xxxxxxxx
Name:_______________________________
______________________________________ Title:______________________________
Xxxxxx X. Xxxxxx
______________________________________
Xxxxxxx X. Xxxxxx
______________________________________
Xxxxxx X. Xxxxxxx
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_________________________________________
Xxxxxx X. Xxxxxxx
_________________________________________
Xxxxxxx X. Xxxxxx, as Trustee Under
Indenture 73180 for the benefit of
Stephen R.H. Xxxxxx, Xxxxxx S. G. Xxxxxx,
Xxxxxxx X. X. Xxxxxx and Xxxxx
X. X. Xxxxxx
_________________________________________
Xxxxxxx X. Xxxxxx, as Trustee Under
Agreement of Xxxxxx X. Xxxxxx dated
August 1, 1991 for the benefit of
Xxxxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx,
Xxxx X. Xxxxxx, Xxxxxxxx X. Xxxxxx,
Xxxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx
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SCHEDULE I
Record Holder Number of Shares
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Xxxx X. Xxxxxxxx 664,985*
Xxxxxx X. Xxxxxxxx, as custodian for children 26,880
Xxxxxx X. Xxxxxx 127,684
Xxxxxxx X. Xxxxxx 345,445
Xxxxxx X. Xxxxxxx 906,000
Xxxxxx X. Xxxxxxx, as trustee for children 126,271
Xxxxxxx X. Xxxxxx, as Trustee Under 477,046
Indenture 73180 for the benefit of
Stephen R.H. Xxxxxx, Xxxxxx S. G.
Xxxxxx, Xxxxxxx X. X. Xxxxxx and
Xxxxx X. X. Xxxxxx
Xxxxxxx X. Xxxxxx, as Trustee Under 389,418
Agreement of Xxxxxx X. Xxxxxx dated
August 1, 1991 for the benefit of
Xxxxxxxxx X. Xxxxxx, Xxxxxx X. Xxxxxx,
Xxxx X. Xxxxxx, Xxxxxxxx X. Xxxxxx,
Xxxxxxx X. Xxxxxx and Xxxxxx X. Xxxxxx
----------------
* Includes 609,685 shares held in Xx. Xxxxxxxx'x recovable trust.
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