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TENDER AND VOTING AGREEMENT
TENDER AND VOTING AGREEMENT (this "Agreement"), dated as of December 17,
1998, by and among ▇▇▇▇▇▇ Products Corp., a Massachusetts corporation
("Parent"), ▇▇▇▇▇▇▇▇ Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of Parent ("Sub"), and the individuals set forth on
Exhibit A hereto (the "Stockholders," or individually, a "Stockholder"), each of
whom holds shares of The Rival Company, a Delaware corporation (the "Company").
WHEREAS, concurrently herewith, Parent, Sub and the Company, are entering
into an Agreement and Plan of Merger of even date herewith (the "Merger
Agreement"; capitalized terms used but not defined herein shall have the
meanings set forth in the Merger Agreement), pursuant to which Sub agrees to
make a tender offer (the "Offer") for all outstanding shares of Common Stock,
par value $.01 per share (the "Shares"), of the Company at $13.75 per share, net
to the seller in cash (the "Offer Price"), to be followed by the merger of Sub
with the Company (the "Merger"), with the corporation surviving the Merger
becoming a wholly-owned subsidiary of Parent;
WHEREAS, as of the date hereof, the Stockholders beneficially own the
Shares set forth on Exhibit A hereto (the "Owned Shares"); and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and Sub have required that the Stockholders agree, and the
Stockholders have agreed (i) to tender pursuant to the Offer all of the Owned
Shares (which term shall include any Shares acquired by them after the date
hereof), (ii) to vote the Owned Shares in favor of the adoption of the Merger
Agreement and the approval of the Merger, (iii) to appoint Parent as the
Stockholders' proxy to vote the Owned Shares in connection with the Merger
Agreement and the Merger and (iv) with respect to other matters put to
stockholders of the Company for a vote, to vote the Owned Shares, in each case,
in accordance with the terms and conditions of this Agreement;
NOW, THEREFORE, in consideration of the premises and for other good and
valuable consideration given to each party hereto, the receipt of which is
hereby acknowledged, the parties agree as follows:
1. Agreement to Tender and Vote.
1.1 Tender. Each of the Stockholders hereby agrees to validly tender (or
cause the record owner to tender), and not to withdraw, pursuant to and in
accordance with the terms of the Offer, not later than three (3) business days
prior to the initial expiration of the Offer, the Owned Shares beneficially
owned by him on the date hereof and any additional Shares acquired by such
Stockholder in any capacity after the date hereof and prior to the termination
of this Agreement (whether upon the exercise of options, warrants or rights, the
conversion or exchange of
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convertible or exchangeable securities, or by means of purchase, dividend,
distribution, gift, bequest, inheritance or as a successor in interest in any
capacity or otherwise) beneficially owned by such Stockholder, which additional
Shares shall constitute Owned Shares for all purposes of this Agreement. Parent
and Sub agree to accept and pay for the Owned Shares in the Offer, subject to
the terms and conditions of the Offer. The parties agree that the Stockholders
will, for all Owned Shares tendered by the Stockholders in the Offer and
accepted for payment and paid for by Sub, receive the same per share
consideration paid to other shareholders who have tendered Shares into the
Offer. The transfer by the Stockholders of the Owned Shares to Sub in the Offer
shall, upon payment therefor, pass to and unconditionally vest in Sub good and
valid title to the Owned Shares, free and clear of all claims, liens,
restrictions, security interests, pledges, limitations and encumbrances
whatsoever.
1.2 Voting. Each Stockholder hereby agrees that, during the time this
Agreement is in effect, at any meeting of the shareholders of the Company,
however called, or any other opportunity to vote, he shall (a) vote all of the
Owned Shares as are beneficially owned by him on the record date for determining
stockholders of record entitled to vote at such meeting in favor of the adoption
of the Merger Agreement and approval of the Merger; (b) vote such Owned Shares
against any action or agreement that would result in a breach in any material
respect of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement; and (c) vote such Owned
Shares against any action or agreement (other than the Merger Agreement or the
transactions contemplated thereby) that would impede, interfere with, delay,
postpone or attempt to discourage the Merger, including, but not limited to: (i)
any extraordinary corporate transaction, such as a merger, consolidation or
other business combination involving the Company; or (ii) a sale or transfer of
a material amount of assets of the Company or any of its subsidiaries or a
reorganization, recapitalization or liquidation of the Company or any of its
subsidiaries. Each Stockholder shall forward to Parent any proxy cards that such
Stockholders receive with respect to the Merger Agreement duly executed by such
Stockholder.
1.3 Irrevocable Proxy. Each Stockholder (without any further action on
such Stockholder's part) shall be deemed to have hereby irrevocably appointed
Parent as the attorney and proxy of such Stockholder, with full power of
substitution, to vote, and otherwise act (by written consent or otherwise) with
respect to all Owned Shares that such Stockholder is entitled to vote at any
meeting of stockholders of the Company (whether annual or special and whether or
not an adjourned or postponed meeting) or consent in lieu of any such meeting or
otherwise, to vote such Shares as set forth in Section 1.2 above. THIS PROXY AND
POWER OF ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN INTEREST. Each Stockholder
hereby revokes, effective upon the execution and delivery of the Merger
Agreement by the parties thereto, all other proxies and powers of attorney with
respect to the Owned Shares that he may have heretofore appointed or granted,
and no subsequent proxy or power of attorney (except in furtherance of such
Stockholder's obligations under Section 1.2 hereof) shall be given or written
consent executed (and if given or executed, shall not be effective) by such
Stockholder with respect thereto so long as the Stockholder's obligations under
this Section remain in effect.
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The proxy granted hereunder shall automatically be revoked and of no further
force and effect upon termination of this Agreement.
2. Termination of Agreement. (a) This Agreement and the Stockholders'
obligations hereunder shall terminate on the earlier of (i) the consummation of
the Merger, (ii) the termination of the Offer pursuant to the terms of the
Merger Agreement without any Shares having been purchased pursuant thereto, or
(iii) the termination of the Merger Agreement in accordance with its terms,
including as such terms may be amended or extended by the parties thereto.
(b) The obligations of any Stockholder hereunder may be
terminated by such Stockholder if (i) Purchaser or Sub shall have failed to
comply with any of its obligations under Article I of the Merger Agreement or
(ii) Purchaser or Sub shall have violated any provisions of this Agreement.
3. Representations and Warranties.
3.1 Representations and Warranties of Parent and Sub. Parent and Sub
hereby represent and warrant to Stockholder as follows:
(a) Organization; Due Authorization. Parent is a corporation duly
organized, validly existing and in good standing under the laws of Commonwealth
of Massachusetts. Parent has full power and authority to execute and deliver
this Agreement and to perform its obligations hereunder. The execution and
delivery of this Agreement and the consummation of the transactions contemplated
hereby have been duly and validly authorized by the Board of Directors of
Parent, and no other corporate proceedings on the part of Parent are necessary
to authorize this Agreement or to consummate the transactions contemplated
hereby. This Agreement has been duly and validly executed and delivered by
Parent and constitutes a valid and binding agreement of Parent, enforceable
against Parent in accordance with its terms, except to the extent (i) such
enforcement may be limited by applicable bankruptcy, insolvency or similar laws
affecting creditors' rights and (ii) the remedy of specific enforcement and
injunctive and other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any proceeding therefor
may be brought.
(b) Organization; Due Authorization. Sub is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware. Sub has full corporate power and authority to execute and deliver this
Agreement. The execution and delivery of this Agreement and the consummation of
the transactions contemplated hereby have been duly and validly authorized by
the Board of Directors of Sub, and no other corporate proceedings on the part of
Sub are necessary to authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Sub and constitutes a valid and binding agreement of Sub,
enforceable against Sub in accordance with its terms, except to the extent (i)
such enforcement may be limited by applicable
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bankruptcy, insolvency or similar laws affecting creditors' rights and (ii) the
remedy of specific enforcement and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
3.2 Representations and Warranties of The Stockholders. Each Stockholder
hereby severally represents and warrants to Parent and Sub as follows:
(a) Title. Such Stockholder has good and valid title (which may include
holding in nominee or "street" name) to the number of Owned Shares set opposite
his name on Exhibit A, free and clear of any lien, charge, encumbrance or claim
of whatever nature.
(b) Ownership of Shares. On the date hereof, the Stockholder beneficially
owns the number of Shares set opposite his name on Exhibit A, all of which are
held of record by him (except as otherwise set forth on Exhibit A). Such
Stockholder has sole voting power and sole power of disposition with respect to
the number Owned Shares set opposite his name on Exhibit A, with no
restrictions, subject to applicable federal securities laws, on his rights of
disposition pertaining thereto; provided that, if any of the Owned Shares are
held jointly, such Stockholder agrees to cause each joint owner of such Owned
Shares to comply with the provisions of this Agreement.
(c) Power; Binding Agreement. Such Stockholder has the legal capacity,
power and authority to enter into and perform all of his 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 including, without limitation, any voting agreement, stockholders
agreement or voting trust. 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, except to the extent (i) such enforcement may be limited by applicable
bankruptcy, insolvency or similar laws affecting creditors' rights and (ii) the
remedy of specific enforcement and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(d) No Conflicts. The execution, delivery and performance of this
Agreement by such Stockholder will not constitute a breach, violation or default
(or any event which, with notice or lapse of time or both, would constitute a
default) under, or result in the termination of, or accelerate the performance
required by, or result in a right of termination or acceleration under, or
result in the creation of any lien or encumbrance upon any of the properties or
assets of the Stockholder under, any note, bond, mortgage, indenture, deed of
trust, license, lease, agreement or other instrument to which such Stockholder
is a party or by which his respective properties or assets are bound.
4. Certain Covenants of the Stockholders. Each Stockholder hereby
covenants and agrees while this Agreement is in effect, as follows:
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4.1 Restriction on Transfer, Proxies and Non-Interference. Not to (i)
sell, transfer, pledge, encumber, assign or otherwise dispose of, or enter into
any contract, option or other arrangement or understanding with respect to the
sale, transfer, pledge, encumbrance, assignment or other disposition of, any of
his Owned Shares, (ii) grant any proxies, deposit any shares of capital stock of
the Company into a voting trust or enter into a voting agreement with respect to
any such 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 his
obligations under this Agreement; provided, however, that such Stockholder shall
be permitted to transfer any of the Owned Shares to any member of the immediate
family of such Stockholder or any trust, limited partnership or other entity the
beneficial ownership of which is held by the Stockholder or such family members
(each, a "Permitted Transferee"), so long as such Permitted Transferee agrees in
writing, in form and substance satisfactory to Parent and Sub, to be bound by
the terms hereof to the same extent as such Stockholder is bound and provided
further, however, that no such transfer shall relieve such Stockholder of his
obligations hereunder if such Permitted Transferee does not perform such
obligations;
4.2 Additional Shares. To promptly notify Parent and Sub of the number of
additional Shares acquired by such Stockholder, if any, after the date hereof,
which additional Shares shall be deemed Owned Shares for all purposes of this
Agreement; and
4.3 No Solicitation of Transactions. Subject to the provisions of Section
6.8 of the Merger Agreement relating to actions by such Stockholder in his
capacity as a director or officer of the Company, not to directly or indirectly,
solicit, initiate or participate, or offer to participate with any person or
entity in any Acquisition Proposal or offer from any person or entity, or engage
in discussions or negotiations relating thereto (including by way of furnishing
information). While this Agreement is in effect, such Stockholder shall promptly
advise Purchaser of his receipt of any Acquisition Proposal (and provide the
details thereof) or if any inquiries are received by, any information or
documents are requested from, or any negotiations or discussions are sought to
be instituted or continued with, such Stockholder or any of his affiliates.
5. 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 the transactions contemplated by
Section 1 of this Agreement.
6. Miscellaneous.
6.1 Entire Agreement, Assignment. This Agreement (i) constitutes the
entire agreement among the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
among the parties with respect to the
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subject matter hereof and (ii) shall not be assigned by operation of law or
otherwise, provided that Parent or Sub may assign its rights and obligations
hereunder to any direct or indirect wholly-owned subsidiary of Parent, but no
such assignment shall relieve Parent or Sub of its obligations hereunder if such
assignee does not perform such obligations. The obligations of the Stockholders
under this Agreement are several, and not joint.
6.2 Notice. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be delivered to the
respective parties at the following addresses:
To the Stockholders:
c/o The Rival Company
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇
Attn: Board of Directors
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
copy to:
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.
To Parent or Sub:
▇▇▇▇▇▇ Products Corp.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
copies to:
Berkshire Partners
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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and
Posternak, ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, P.C.
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.
6.3 Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware, regardless of the laws that
might otherwise govern under applicable principles of conflicts of laws thereof.
6.4 Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereby agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
6.5 Counterparts. This Agreement may be executed in one or more
counterparts, whether original signatures or facsimile copies, which together
shall form one complete Agreement.
6.6 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.
6.7 Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal on the date and year first above written.
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PARENT:
▇▇▇▇▇▇ PRODUCTS CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Its: Chief Operating Officer
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SUB:
▇▇▇▇▇▇▇▇ ACQUISITION CORP.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------
Its: Vice President
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STOCKHOLDERS:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/W. ▇▇▇▇ Meieroffer
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Name: W. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇, III
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇, III
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
/s/ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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EXHIBIT A
Name, Title and Address No. of Owned Shares
----------------------- -------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 69,563
Chairman, Chief Executive Officer, Director
▇▇▇▇▇▇▇. ▇. ▇▇▇▇▇ 6,000
President, Chief Operating Officer, Director
W. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ 2,000
Senior Vice President -
Finance & Administration, CFO
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 26,054
Senior Vice President - Operations, Director
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 2,314
Vice President, Treasurer, Corporate Secretary
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ 34,900
Director
▇▇▇▇ ▇▇▇▇▇▇▇ 54,238
Director
▇▇▇▇ ▇. ▇▇▇▇▇, III 2,300
Director
▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 1,200
Director
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ 850,000
Director
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ 1,200
Director
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