<PAGE> 1
EXHIBIT 10.1
STOCK PURCHASE AGREEMENT
DATED AS OF DECEMBER 29, 2000
BY AND AMONG
WATER PIK TECHNOLOGIES, INC.,
SPECIAL VALUE BOND FUND, LLC
AND
SPECIAL VALUE BOND FUND II, LLC
<PAGE> 2
STOCK PURCHASE AGREEMENT
This STOCK PURCHASE AGREEMENT is entered into as of December 29, 2000
(this "Agreement") by and among Water Pik Technologies, Inc., a Delaware
corporation (the "Company"), Special Value Bond Fund, LLC, a Delaware limited
liability company ("SVBF") and Special Value Bond Fund II, LLC, a Delaware
limited liability company ("SVBFII" and together with SVBF, the "Purchaser").
WITNESSETH
WHEREAS, the Company desires to sell and issue shares of its Common
Stock to the Purchaser, and the Purchaser desires to purchase the Common Stock
from the Company, on the terms and subject to the conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and the mutual
agreements contained herein, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
For the purposes of this Agreement, the following terms shall have the
following respective meanings:
"Affiliate" shall mean, with respect to any Person, any Person that,
directly or indirectly, controls, is controlled by or is under common control
with such Person. For the purposes of this definition, "control" (including,
with correlative meanings, the terms "controlled by" and "under common control
with"), as used with respect to any Person, shall mean the possession, directly
or indirectly, of the power to direct or cause the direction of the management
and policies of such Person, whether through the ownership of voting securities
or by contract or otherwise.
"ATI" means Allegheny Teledyne Incorporated, a Delaware corporation.
"Bylaws" means the Bylaws of the Company, as they may be amended or
restated hereafter from time to time.
"Certificate of Incorporation" means the Certificate of Incorporation
of the Company, as it may be amended or restated hereafter from time to time.
"Closing" shall have the meaning set forth in Section 2.2(a).
"Common Stock" means the Company's Common Stock, par value $0.01 per
share.
"Company" shall have the meaning set forth in the preamble of this
Agreement.
<PAGE> 3
"Company Indemnified Party" shall have the meaning set forth in Section
8.2.
"Consents" shall have the meaning set forth in Section 5.3.
"DGCL" means the Delaware General Corporation Law.
"Environmental Laws" shall have the meaning set forth in Section 3.16.
"Exchange Act" means the Securities Exchange Act of 1934, as amended,
or any similar or successor Federal statute, and the rules and regulations of
the SEC thereunder, all as the same shall be in effect at the time.
"Financial Projections" shall have the meaning set forth in Section
3.9.
"HSR Act" shall means the Hart-Scott-Rodino Antitrust Improvements Act
of 1976, as amended, and the rules and regulations thereunder.
"IRS" means the U.S. Internal Revenue Service.
"Litigation" means any claim, action, suit, investigation or
proceeding.
"Losses" shall have the meaning set forth in Section 8.1.
"Material Adverse Effect" means any material adverse effect on any of:
(a) the business, properties, assets, operations, prospects, results of
operations or condition (financial or otherwise) of the Company and its
Subsidiaries, if any, taken as a whole; provided, that such material adverse
effect is reasonably expected to have a dollar value of at least $10,000,000,
(b) the transactions contemplated hereby or by the agreements and instruments to
be entered into in connection herewith or (c) the authority or ability of the
Company to perform its obligations under the Transaction Documents.
"NYSE" shall mean the New York Stock Exchange.
"Person" shall mean and include an individual, a corporation, a limited
liability company, an association, a partnership, a trust or estate, a
government or any department or agency thereof.
"Previously Purchased Securities" shall have the meaning set forth in
Section 3.12.
"Purchaser" shall have the meaning set forth in the preamble of this
Agreement.
"Purchaser Indemnified Party" shall have the meaning set forth in
Section 8.1.
"Purchase Price" shall have the meaning set forth in Section 2.1.
"Registration Rights Agreement" means the Registration Rights
Agreement, substantially in the form attached hereto as Exhibit A, with such
changes therein as to which the Purchaser may agree, by and between the Company
and the Purchaser.
2
<PAGE> 4
"Ruling Request" means the request for ruling (including all exhibits)
under Section 355 and other provisions of the Internal Revenue Code of 1986, as
amended, as originally filed on behalf of ATI on April 6, 1999, as amended and
supplemented.
"SEC" means the Securities and Exchange Commission or any other
governmental authority at the time administering the Securities Act or the
Exchange Act.
"SEC Documents" shall have the meaning set forth in Section 3.6.
"Securities" shall have the meaning set forth in Section 3.12.
"Securities Act" means the Securities Act of 1933, as amended, and any
similar or successor Federal statute, and the rules and regulations of the SEC
thereunder, all as the same may be in effect at the time.
"Shares" shall have the meaning set forth in Section 2.1.
"Subsidiary" means any entity in which the Company, directly or
indirectly, owns 50% or more of the voting stock or capital stock or other
similar equity interests.
"SVBF" shall have the meaning set forth in the preamble of this
Agreement.
"SVBFII" shall have the meaning set forth in the preamble of this
Agreement.
"Tax Ruling" means the tax ruling from the IRS, as amended, received in
connection with the Company's spin-off from ATI.
"Trading Day" means any day on which the NYSE is open for customary
trading.
"Transaction Documents" shall have the meaning set forth in Section
3.2.
ARTICLE II.
PURCHASE AND SALE OF COMMON STOCK
2.1 Purchase and Sale of Common Stock. Subject to the terms and
conditions of this Agreement, the Purchaser agrees to purchase at the Closing
and the Company agrees to sell and issue to the Purchaser at the Closing that
number of shares of Common Stock set forth opposite the Purchaser's name on
Schedule I attached hereto (the "Shares") for an aggregate purchase price of
$15,000,006 (the "Purchase Price").
2.2 Closing; Delivery.
(a) The purchase and sale of the Shares shall take place at
the offices of Latham & Watkins, 12636 High Bluff Drive, Suite 300, San Diego,
California, at 10:00 a.m., on the later of (i) January 3, 2001 or (ii) the
second Trading Day following the satisfaction or waiver of the conditions set
forth in Article VI (other than the conditions that by their nature are to be
satisfied at the Closing, but subject to the satisfaction or waiver of those
conditions), or at
3
<PAGE> 5
such other time and place as the Company and the Purchaser mutually agree upon,
orally or in writing (which time and place are designated as the "Closing").
(b) At the Closing, the Company shall deliver to the Purchaser
a certificate representing the Shares being purchased thereby against payment of
the Purchase Price therefor by wire transfer to the Company's bank account in
immediately available funds.
ARTICLE III.
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company represents and warrants to the Purchaser as follows:
3.1 Organization and Qualification. The Company and each of its
Subsidiaries are corporations duly organized and validly existing in good
standing under the laws of the jurisdiction in which they are incorporated, and
have the requisite corporate power and authority to own their properties and to
carry on their business as now being conducted. Each of the Company and its
Subsidiaries is duly qualified as a foreign corporation to do business and is in
good standing in every jurisdiction in which its ownership of property or the
nature of the business conducted by it makes such qualification necessary,
except to the extent that the failure to be so qualified or be in good standing
could not reasonably be expected to have a Material Adverse Effect. The Company
has no Subsidiaries except as set forth on Schedule 3.1.
3.2 Authorization; Enforcement; Validity. (a) The Company has the
requisite corporate power and authority to enter into and perform its
obligations under this Agreement and the Registration Rights Agreement
(collectively, the "Transaction Documents"), and to issue the Shares in
accordance with the terms hereof and thereof, (b) the execution and delivery of
the Transaction Documents by the Company and the consummation by it of the
transactions contemplated hereby and thereby, including without limitation, the
issuance of the Shares, have been duly authorized by the Board of Directors of
the Company and no further consent or authorization is required by the Company,
its Board of Directors or its stockholders, (c) this Agreement has been, and
each other Transaction Document shall be as of the date of the Closing, duly
executed and delivered by the Company and (d) this Agreement constitutes, and
each other Transaction Document upon its execution on behalf of the Company,
shall constitute, the valid and binding obligations of the Company enforceable
against the Company in accordance with their terms, except as such
enforceability may be limited by general principles of equity or applicable
bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws
relating to, or affecting generally, the enforcement of creditors' rights and
remedies, and except as such rights to indemnity and contribution may be limited
by federal and state securities laws and public policy considerations.
3.3 Capitalization. As of the date hereof, the authorized capital stock
of the Company consists of (a) 50,000,000 shares of Common Stock, of which as of
December 22, 2000, 9,923,685 shares were issued and outstanding, 2,287,026
shares were reserved for issuance pursuant to the Company's option and incentive
plans of which 71,037 shares remained available for future grant under such
plans and (b) 5,000,000 shares of preferred stock, par value $0.01 per share, of
which as of the date hereof no shares are issued and outstanding. All of such
outstanding shares have been, or upon issuance will be, validly issued and are
fully paid and
4
<PAGE> 6
nonassessable. Except as disclosed in Schedule 3.3 or in the SEC Documents, (a)
no shares of the Company's capital stock are subject to preemptive rights or any
other similar rights or any liens or encumbrances suffered or permitted by the
Company and (b) there are no outstanding options, warrants, scrip, rights to
subscribe to, calls or commitments of any character whatsoever relating to, or
securities or rights convertible into, any shares of capital stock of the
Company or any of its Subsidiaries, or contracts, commitments, understandings or
arrangements by which the Company or any of its Subsidiaries is or may become
bound to issue additional shares of capital stock of the Company or any of its
Subsidiaries or options, warrants, scrip, rights to subscribe to, calls or
commitments of any character whatsoever relating to, or securities or rights
convertible into, any shares of capital stock of the Company or any of its
Subsidiaries, other than pursuant to the Company's rights plan, stock incentive,
stock purchase, stock option and other compensation and benefit plans. The
Company has furnished to the Purchaser true and correct copies of the
Certificate of Incorporation and the Bylaws, and copies of securities
convertible into or exercisable for Common Stock and any documents containing
the material rights of the holders thereof in respect thereto.
3.4 Issuance of Securities. Upon issuance and payment therefor in
accordance with the terms and conditions of this Agreement, the Shares shall be
validly issued, fully paid and nonassessable and free from all taxes, liens and
charges with respect to the issue thereof, with the Purchaser being entitled to
all rights accorded to a holder of Common Stock under the DGCL and the
Certificate of Incorporation and Bylaws.
3.5 No Conflicts. Except as disclosed in Schedule 3.5, the execution,
delivery and performance of the Transaction Documents by the Company and the
consummation by the Company of the transactions contemplated hereby and thereby
will not (a) result in a violation of the Certificate of Incorporation, any
Certificate of Designations of any outstanding series of preferred stock of the
Company or the Bylaws or (b) conflict with, or constitute a default (or an event
which with notice or lapse of time or both would become a default) under, or
give to others any rights of termination, amendment, acceleration or
cancellation of, any agreement, indenture or instrument to which the Company or
any of its Subsidiaries is a party, or result in a violation of any law, rule,
regulation, order, judgment or decree (including Federal and state securities
laws and regulations and the rules and regulations of the NYSE applicable to the
Company or any of its Subsidiaries) or by which any property or asset of the
Company or any of its Subsidiaries is bound or affected, except in the case of
conflicts, defaults and violations under clause (b), which could not reasonably
be expected to result in a Material Adverse Effect. Except as disclosed in
Schedule 3.5, neither the Company nor its Subsidiaries is in violation of any
term of or is in default under its Certificate of Incorporation, any Certificate
of Designation of any outstanding series of preferred stock of the Company or
the Bylaws or their organizational charter or bylaws, respectively. Except as
disclosed in Schedule 3.5, neither the Company nor any of its Subsidiaries is in
violation of any term of or in default under any contract, agreement, mortgage,
indebtedness, indenture, instrument, judgment, decree or order or any statute,
rule or regulation applicable to the Company or its Subsidiaries, except for
possible conflicts, defaults, terminations or amendments which could not
reasonably be expected to have a Material Adverse Effect. The business of the
Company and its Subsidiaries is not being conducted in violation of any law,
ordinance, regulation of any governmental entity, except for possible
violations, the sanctions for which either individually or in the aggregate
could not reasonably be expected to have a Material Adverse Effect. Except as
specifically contemplated by this Agreement and as
5
<PAGE> 7
required under the Securities Act and applicable state securities laws, the
Company is not required to obtain any consent, authorization or order of, or
make any filing or registration with, any court or governmental agency or any
regulatory or self-regulatory agency in order for it to execute, deliver or
perform any of its obligations under or contemplated by the Transaction
Documents in accordance with the terms hereof or thereof. There is no pending
or, to the knowledge of the Company, threatened action by the NYSE to delist the
Common Stock, and the Company is not aware of any current basis for any such
action.
3.6 SEC Documents; Financial Statements. Except as disclosed in
Schedule 3.6, since November 29, 1999, the Company has timely filed all reports,
schedules, forms, statements and other documents required to be filed by it with
the SEC pursuant to the reporting requirements of the Exchange Act (all of the
foregoing filed prior to the date hereof and all exhibits included therein and
financial statements and schedules thereto and documents incorporated by
reference therein being hereinafter referred to as the "SEC Documents"). As of
their respective dates (except as they have been correctly amended), the SEC
Documents complied as to form in all material respects with the requirements of
the Exchange Act and the rules and regulations of the SEC promulgated thereunder
applicable to the SEC Documents, and none of the SEC Documents, at the time they
were filed with the SEC (except as they may have been correctly amended),
contained any untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary in order to make the statements
therein, in light of the circumstances under which they were made, not
misleading. As of their respective dates (except as they have been correctly
amended), the financial statements of the Company included in the SEC Documents
complied as to form in all material respects with applicable accounting
requirements and the published rules and regulations of the SEC with respect
thereto. Such financial statements have been prepared in accordance with
generally accepted accounting principles, consistently applied, during the
periods involved (except (a) as may be otherwise indicated in such financial
statements or the notes thereto or (b) in the case of unaudited interim
statements, to the extent they may exclude footnotes or may be condensed or
summary statements) and fairly present the financial position of the Company as
of the dates thereof and the results of its operations and cash flows for the
periods then ended (subject, in the case of unaudited statements, to normal
year-end audit adjustments).
3.7 Absence of Certain Changes. Except as disclosed in Schedule 3.7 or
otherwise disclosed in public announcements or press releases which were
previously provided to the Purchaser, since September 30, 2000, there has been
no change to the business, properties, assets, operations, prospects, results of
operations or condition (financial or otherwise) of the Company and its
Subsidiaries, taken as a whole, except for such changes which could not be
reasonably expected to have a Material Adverse Effect.
3.8 Brokers or Finders. Except for Credit Suisse First Boston
Corporation, whose fees will be paid solely by the Company, upon the
consummation of the transactions contemplated by this Agreement, no agent,
broker, investment banker or other Person is or will be entitled to any broker's
or finder's fee or any other commission or similar fee from the Purchaser, the
Company or any of its Subsidiaries in connection with any of the transactions
contemplated by the Transaction Documents.
6
<PAGE> 8
3.9 Financial Projections. The financial projections of the Company,
which were set forth in a press release of the Company on December 5, 2000 and
which press release is attached hereto as Exhibit B (the "Financial
Projections"), have been prepared in good faith on the basis of assumptions by
the Company that the Company believes are reasonable. The Company does not
believe that the Financial Projections are inaccurate, or, to its knowledge,
that it will not achieve the Financial Projections set forth therein, subject to
the assumptions and forward-looking statements disclosure set forth therein.
3.10 No General Solicitation. Neither the Company, nor any of its
Affiliates, nor any Person acting on its or their behalf, has engaged in any
form of general solicitation or general advertising (within the meaning of
Regulation D under the Securities Act) in connection with the offer or sale of
the Shares.
3.11 No Integrated Offering. Except as contemplated by this Agreement,
neither the Company, nor any of its Affiliates, nor any Person acting on its or
their behalf has, directly or indirectly, made any offers or sales of any
security or solicited any offers to buy any security, under circumstances that
would require registration of any of the Shares under the Securities Act or
cause the offering of the Shares to be integrated with prior offerings by the
Company for purposes of the Securities Act or any applicable stockholder
approval provisions, including, without limitation, under the rules and
regulations of any exchange or automated quotation system on which any of the
securities of the Company are listed or designated, nor will the Company or any
of its Subsidiaries take any action or steps that would require registration of
any of the Shares under the Securities Act or cause the offering of the Shares
to be integrated with other offerings in a manner which would cause the sale of
the Shares under this Agreement not to be exempt from the registration
requirements of the Securities Act.
3.12 Takeover Protections. The Company and its Board of Directors have
taken or will take prior to the date of the Closing all necessary action, in a
manner reasonably acceptable to the Purchaser, in order to approve the purchase
of the Shares by the Purchaser pursuant to the terms of this Agreement (as well
as the 386,800 other shares of Common Stock held by the Purchaser as of the date
of this Agreement (the "Previously Purchased Securities," and together with the
Shares, the "Securities")) in accordance with Section 203 of the DGCL and to
exempt the purchase of the Securities by the Purchaser from application of the
Company's Rights Agreement dated November 12, 1999. To the Company's knowledge,
no other state takeover statute or similar statute or regulation, or other
rights agreement or similar agreement or understanding, applies to or purports
to apply to the Transaction Documents, the purchase of the Securities by the
Purchaser or the transactions contemplated hereby or thereby.
3.13 Disclosure. Neither this Agreement nor any other Transaction
Document, nor any schedule or exhibit hereto or thereto, when read in
conjunction with the Company's Annual Report on Form 10-K for the year ended
December 31, 1999 and the SEC Documents filed at any time after such 10-K was
filed with the SEC, contains any untrue statement of a material fact or omits to
state a material fact necessary in order to make the statements contained herein
or therein not misleading (for purposes of the preceding sentence, any
preliminary document or written information shall be disregarded if a final or
updated version of such document or written information was delivered to the
Purchaser by the Company prior to the date hereof). As of the date hereof there
is no fact or information relating to the Company and/or
7
<PAGE> 9
any of its Subsidiaries, including, without limitation, the description of the
Ruling Request and the Tax Ruling in the SEC Documents, that has not been
described in the SEC Documents, the Company's press releases previously provided
to the Purchaser or otherwise disclosed in writing to the Purchaser, except
which could not reasonably be expected to have a Material Adverse Effect.
3.14 Tax Ruling. The Company and each of its Subsidiaries have complied
with each representation and statement made by the Company or its Subsidiaries
in the Ruling Request and in the materials submitted to the IRS in connection
with the Ruling Request which were required by the Tax Ruling, as supplemented,
to be complied with by the Company and its Subsidiaries prior to the date
hereof. The Company and each of its Subsidiaries have not taken any action or
failed to undertake any action that could jeopardize the Tax Ruling or that
would be inconsistent with the Ruling Request.
3.15 Intellectual Property Rights. The Company and each of its
Subsidiaries own or possess adequate rights or licenses to use all trademarks,
trade names, service marks, service mark registrations, service names, patents,
patent rights, copyrights, inventions, licenses, approvals, governmental
authorizations, trade secrets and rights necessary to conduct their respective
businesses as now conducted, except where such failure could not reasonably be
expected to have a Material Adverse Effect. Except as set forth on Schedule
3.15, none of the Company's material trademarks, patents or licenses, by the
terms and conditions thereof, could expire or terminate within five years from
the date of this Agreement. The Company and its Subsidiaries do not have any
knowledge of any infringement by the Company or its Subsidiaries of any
trademark, trade name rights, patents, patent rights, copyrights, inventions,
licenses, service names, service marks, service mark registrations, trade secret
or other similar rights of others, or of any such development of similar or
identical trade secrets or technical information by others, except which could
not reasonably be expected to have a Material Adverse Effect and, except as set
forth on Schedule 3.15, there is no claim, action or proceeding being made or
brought against, or to the Company's knowledge, being threatened against, the
Company or its Subsidiaries regarding trademark, trade name, patents, patent
rights, invention, copyright, license, service names, service marks, service
mark registrations, trade secret or other infringement, except which could not
reasonably be expected to have a Material Adverse Effect.
3.16 Environmental Laws. Except as set forth on Schedule 3.16, and
except in all cases as, individually or in the aggregate, have not had and could
not reasonably be expected to have a Material Adverse Effect, the Company (a)
has obtained all applicable permits, licenses and other authorizations which are
required to be obtained under all applicable federal, state or local laws or any
regulation, code, plan, order, decree, judgment, notice or demand letter issued,
entered, promulgated or approved thereunder relating to pollution or protection
of the environment, including laws relating to emissions, discharges, releases
or threatened releases of pollutants, contaminants, or hazardous or toxic wastes
into ambient air, surface water, ground water, or land or otherwise relating to
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport, or handling of pollutants, contaminants or hazardous or toxic
materials or wastes ("Environmental Laws") by the Company, (b) is in compliance
with all terms and conditions of such required permits, licenses and
authorizations, and also is in compliance with all other limitations,
restrictions, conditions, standards, prohibitions, requirements, obligations,
schedules and timetables contained in applicable Environmental Laws, (c) is not
8
<PAGE> 10
aware of nor has received notice of any past or present violations of
Environmental Laws or any event, condition, circumstance, activity, practice,
incident, action or plan which is reasonably likely to interfere with or prevent
continued compliance with or which could give rise to any common law or
statutory liability, or otherwise form the basis of any claim, action, suit or
proceeding against the Company based on or resulting from the manufacture,
processing, distribution, use, treatment, storage, disposal, transport or
handling, or the emission, discharge or release into the environment, of any
pollutant, contaminant or hazardous or toxic material or waste and (d) has taken
all actions necessary under applicable Environmental Laws to register any
products or materials required to be registered by the Company thereunder.
3.17 Change in Control. The consummation of the transactions
contemplated hereby will not constitute a "Change in Control," as such term is
defined in the employment agreements between the Company and its executive
officers, or otherwise cause the Company or any of its Subsidiaries to incur or
suffer any liability relating to, or obligation to pay, severance, termination
or other payments to any Person or cause the acceleration of any option to
purchase shares of Common Stock.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES OF THE PURCHASER
The Purchaser, jointly and severally, represents and warrants to the
Company as follows:
4.1 Investment Purpose. Each Purchaser is purchasing the Shares for
such Purchaser's own account for investment only and not with a view toward or
in connection with the resale or distribution thereof. Neither Purchaser will
resell the Shares except pursuant to sales that are exempt from the registration
requirements of the Securities Act and all applicable state securities laws,
and/or sales registered under the Securities Act and all applicable state
securities laws. Each Purchaser understands that it may bear the economic risk
of this investment indefinitely, unless the Shares are registered pursuant to
the Securities Act and any applicable state securities laws or an exemption from
such registration is available, and that the Company has no present intention of
registering any Shares except as contemplated by the Registration Rights
Agreement.
4.2 Accredited Investor Status. Each Purchaser is an "accredited
investor" as that term is defined in Rule 501(a) of Regulation D promulgated
under the Securities Act. By reason of its business and financial experience,
sophistication and knowledge, each Purchaser is capable of evaluating the risks
and merits of the investment made pursuant to this Agreement.
4.3 Authorization; Enforcement; Validity. The Transaction Documents
have been duly and validly authorized, executed and delivered on behalf of each
Purchaser and are valid and binding agreements of each Purchaser enforceable in
accordance with their terms, except as enforceability may be limited by
applicable bankruptcy, insolvency, or similar laws affecting the enforcement of
creditors' rights generally or by equitable principles relating to
enforceability, and except as such rights to indemnity and contribution may be
limited by federal and state securities laws and public policy considerations.
9
<PAGE> 11
4.4 Organization and Qualification. Each Purchaser is duly organized
and validly existing in good standing under the laws of the State of Delaware,
and has the requisite power and authority to carry on its business as now being
conducted.
4.5 No Conflicts. The execution, delivery and performance of the
Transaction Documents by each Purchaser and the consummation by each Purchaser
of the transactions contemplated hereby and thereby will not (a) result in a
violation of the organizational documents of either Purchaser or (b) conflict
with, or constitute a default (or an event which with notice or lapse of time or
both would become a default) under, or give to others any rights of termination,
amendment, acceleration or cancellation of, any agreement, indenture or
instrument to which either Purchaser is a party, or result in a violation of any
law, rule, regulation, order, judgment or decree or by which any property or
asset of either Purchaser is bound or affected, except in the case of conflicts,
defaults and violations under clause (b), which could not reasonably be expected
to have a material adverse effect on the business or operations of either
Purchaser. Neither Purchaser is required to obtain any consent, authorization or
order of, or make any filing or registration with, any court or governmental
agency or any regulatory or self-regulatory agency (including under the HSR Act)
in order for it to execute, deliver or perform any of its obligations under or
contemplated by the Transaction Documents in accordance with the terms hereof or
thereof.
4.6 Brokers or Finders. Upon the consummation of the transactions
contemplated by this Agreement, no agent, broker, investment banker or other
Person is or will be entitled to any broker's or finder's fee or any other
commission or similar fee from either Purchaser in connection with any of the
transactions contemplated by the Transaction Documents.
4.7 Ownership. Prior to the Closing, the Purchaser and their
Affiliates, individually and collectively, will not (a) beneficially own (as
calculated in accordance with Rule 13d-3 of the Exchange Act), directly or
indirectly, more than 386,800 shares of Common Stock or (b) have any agreement
or understanding with any Person to acquire or dispose of, directly or
indirectly, any shares of Common Stock, other than the purchase of the Shares
from the Company under this Agreement.
4.8 Relationship of Purchaser. Michael E. Tennenbaum possesses,
directly or indirectly, shared power to direct or cause the direction of the
management, policies and investment decisions of each Purchaser either through
the ownership of voting securities or by contract.
ARTICLE V.
CERTAIN COVENANTS
5.1 Conduct of Business by the Company Pending the Closing. The Company
covenants and agrees that, except as set forth in Schedule 5.1, during the
period from the date of this Agreement and continuing until the earlier of the
termination of this Agreement or the Closing, unless the Purchaser otherwise
agrees in writing, the Company shall, and shall cause each of its Subsidiaries
to, (a) conduct its business only in the ordinary course and consistent with
past practice, (b) use commercially reasonable efforts to preserve and maintain
its assets
10
<PAGE> 12
and properties and its relationships with its customers, suppliers, advertisers,
distributors, agents, officers and employees and other Persons with which it has
significant business relationships, (c) use commercially reasonable efforts to
maintain all of the material assets it owns or uses in the ordinary course of
business consistent with past practice, (d) use commercially reasonable efforts
to preserve the goodwill and ongoing operations of its business, (e) maintain
its books and records in the usual, regular and ordinary manner, on a basis
consistent with past practice and (f) comply in all material respects with
applicable Federal, state, foreign or local laws, ordinances or rules. Except as
expressly contemplated by this Agreement or as set forth on Schedule 5.1,
between the date of this Agreement and the Closing, the Company shall not, and
shall cause each of its Subsidiaries not to, do any of the following without the
prior written consent of the Purchaser:
(a) change any method of accounting or accounting practice
used by the Company or any of its Subsidiaries, other than such changes required
by United States generally accepted accounting principles, except as disclosed
in the SEC Documents;
(b) repurchase, redeem or otherwise acquire or exchange any
shares of Common Stock or other equity interests; except for issuances of Common
Stock pursuant to the exercise of options, grants or rights to purchase Common
Stock outstanding on the date hereof or options, grants or rights issued in
compliance with this clause (b), issue or sell any additional shares of the
capital stock of, or other equity interests in, the Company or any of its
Subsidiaries, or securities convertible into or exchangeable for such shares or
other equity interests, or issue or grant any subscription rights, options,
warrants or other rights of any character relating to shares of such capital
stock, such other equity interests or such securities, other than options,
grants and rights to purchase Common Stock granted after the date hereof in the
ordinary course of business under the Company's existing stock option, stock
incentive, stock purchase and other compensation and benefit plans and the
Company's rights plan; or, declare, set aside, make or pay any dividend, or make
any distribution, in respect of any shares of capital stock of the Company;
(c) amend the Company's or any of its Subsidiaries' charter,
bylaws or other organizational documents;
(d) take any action that is reasonably likely to result in (i)
any of the representations and warranties set forth in Article II becoming false
or inaccurate in any material respect as of the date of the Closing or (ii) any
of the conditions to the obligations of the Purchaser set forth in Section 6.2
not being satisfied; or
(e) agree to take any of the actions restricted by this
Section 5.1.
5.2 Press Releases; Interim Public Filings. The Company shall, and
shall cause each of its Subsidiaries to, deliver to the Purchaser complete and
correct copies of all press releases and public filings made between the date
hereof and the date of the Closing. To the extent any such press releases refer
to the Purchaser or its Affiliates, shall give the Purchaser the reasonable
opportunity to review and comment on such releases and filings (on a strictly
confidential basis until such information is released), in each case prior to
release in the form in which it will be issued.
11
<PAGE> 13
5.3 Consents; Approvals. The Company shall use commercially reasonable
efforts to obtain prior to the Closing all consents, waivers, exemptions,
approvals, authorizations or orders (collectively, "Consents") required in
connection with the transactions contemplated by this Agreement or any of the
other Transaction Documents (including, without limitation (a) all Consents
required to avoid any breach, violation, default, encumbrance or right of
termination, modification, cancellation, prepayment, suspension, limitation,
revocation or acceleration of any material agreement or instrument to which the
Company or any of its Subsidiaries is a party or by which any of their material
assets are bound, (b) all Consents pursuant to the Company's or any of its
Subsidiaries' financing documents, including without limitation, all indentures
and credit agreements of the Company or any of its Subsidiaries and (c) all
governmental and regulatory rulings and approvals). The Company also shall use
commercially reasonable efforts to obtain all necessary state securities laws or
blue sky permits and approvals required to carry out the transactions
contemplated hereby and shall furnish all information as may be reasonably
requested in connection with any such action.
5.4 Listing. The Company shall use commercially reasonable efforts to
continue to have its Common Stock listed on the NYSE for so long as any Shares
are outstanding. Prior to the Closing, the Company shall prepare and submit to
the NYSE a listing application covering the Shares and shall take all actions
reasonably necessary to obtain approval for the listing of such shares. If such
approval is not obtained prior to the Closing, the Company shall use
commercially reasonable efforts to obtain, as promptly as practicable following
the Closing, the approval for the listing of the Shares on the NYSE.
5.5 Cooperation. Each of the Purchaser and the Company agrees to use
commercially reasonable efforts to take, or cause to be taken, all such further
actions as shall be necessary to make effective and consummate the transactions
contemplated by this Agreement.
5.6 Access to Property; Records. Between the date hereof and the
Closing the Company shall afford the Purchaser and its employees, counsel,
accountants, partners, members, investors, and other authorized representatives
reasonable access, upon notice, during normal business hours, to the assets,
properties, offices and other facilities and books and records of the Company
and of its Subsidiaries, and to the outside auditors of the Company and their
work papers relating to the Company and its Subsidiaries. The parties hereto
agree that no investigation by the Purchaser or its representatives shall affect
or limit the scope of the representations and warranties of the Company
contained in this Agreement or in any other Transaction Document delivered
pursuant hereto or limit the liability for breach of any such representation or
warranty.
5.7 Use of Proceeds. The Company agrees to conduct its business in the
manner proposed in the Ruling Request and to take all actions necessary to
preserve the validity of the Tax Ruling. The Company further agrees to use the
proceeds received by the Company pursuant to this Agreement in the manner and
during the time periods set forth in the Tax Ruling.
5.8 Standstill. The Purchaser agrees that, for a period of one (1) year
from the Closing, unless such shall have been specifically invited in writing by
the Board of Directors of the Company, neither the Purchaser, Michael E.
Tennenbaum nor any of their respective Affiliates will in any manner, directly
or indirectly, (a) effect or seek, offer or propose (whether
12
<PAGE> 14
publicly or otherwise) to effect, or cause or participate in or in any way
assist any other Person to effect or seek, offer or propose (whether publicly or
otherwise) to effect or participate in, (i) any open market acquisition of any
securities (or beneficial ownership thereof) or assets of the Company or any of
its Subsidiaries, (ii) any tender or exchange offer or merger or other business
combination involving the Company or any of its Subsidiaries, (iii) any
recapitalization, restructuring, liquidation, dissolution or other extraordinary
transaction with respect to the Company or any of its Subsidiaries or (iv) any
"solicitation" of "proxies" (as such terms are used in the proxy rules of the
SEC) or consents to vote any voting securities of the Company, (b) form, join or
in any way participate in a "group" (as defined under the Exchange Act) with
respect to any securities of the Company, (c) otherwise act, alone or in concert
with others, to seek to control or influence the management, Board of Directors
or policies of the Company, (d) take any action which might force the Company to
make a public announcement regarding any of the types of matters set forth in
(a) above or (e) enter into any discussions or arrangements with any third party
with respect to any of the foregoing. In addition, the Purchaser agrees that,
for a period of six (6) months from the date of this Agreement, neither the
Purchaser, Michael E. Tennenbaum nor any of their respective Affiliates will in
any manner, directly or indirectly, dispose of any securities (or beneficial
ownership thereof) of the Company. The Purchaser also agrees, for a period of
one (1) year from the Closing, not to request the Company (or its directors,
officers, employees or agents), directly or indirectly, to amend or waive any
provision of this Section (including this sentence).
ARTICLE VI.
CONDITIONS OF CLOSING
6.1 Conditions to Obligations of the Purchaser. The obligations of the
Purchaser to consummate the transactions contemplated hereby shall be subject to
the satisfaction or waiver at or prior to the Closing of each of the following
conditions:
(a) No statute, rule or regulation or order of any court or
administrative agency shall be in effect which prohibits the consummation of the
transactions contemplated hereby;
(b) The Company shall have performed in all material respects
its covenants and agreements contained in this Agreement required to be
performed at or prior to the Closing and the representations and warranties of
the Company and its Subsidiaries contained in this Agreement that are qualified
as to a Material Adverse Effect shall be true and correct and any such
representations and warranties that are not so qualified shall be true and
correct except where the failure to be true and correct individually or in the
aggregate could not reasonably be expected to have a Material Adverse Effect in
each case, as of the Closing as if made as of the Closing (except to the extent
that the representation or warranty is expressly limited by its terms to another
date);
(c) The Company shall have executed and delivered the
Registration Rights Agreement, and the Registration Rights Agreement shall be in
full force and effect;
(d) The Purchaser shall have received an opinion of Riordan &
McKinzie, outside counsel to the Company, with respect to the due incorporation,
due
13
<PAGE> 15
authorization, validity of the Shares, Securities Act exemption and the valid
and binding nature of this Agreement and the Registration Rights Agreement;
(e) The Company shall have paid the fees and expenses of the
Purchaser pursuant to Section 9.1; and
(f) The Company shall have either (i) obtained approval to
list the Shares on the NYSE or (ii) provided the Purchaser with reasonable
assurances from the NYSE that such approval will promptly be received following
the Closing or that such approval is not necessary to list the Shares.
6.2 Conditions to Obligations of the Company. The obligations of the
Company to consummate the transactions contemplated hereby shall be subject to
the satisfaction or waiver at or prior to the Closing of each of the following
conditions:
(a) No statute, rule or regulation or order of any court or
administrative agency shall be in effect which prohibits the consummation of the
transactions contemplated hereby; and
(b) The Purchaser shall have performed in all material
respects its covenants and agreements contained in this Agreement required to be
performed at or prior to the Closing and the representations and warranties of
the Purchaser contained in this Agreement that are qualified as to a material
adverse effect shall be true and correct and any such representations and
warranties that are not so qualified shall be true and correct except where the
failure to be true and correct individually or in the aggregate would not
reasonably be expected to have a material adverse effect on the Purchaser, in
each case, as of the Closing as if made as of the Closing (except to the extent
that the representation or warranty is expressly limited by its terms to another
date).
ARTICLE VII.
TERMINATION
7.1 Termination. This Agreement may be terminated at any time prior to
the Closing:
(a) by mutual written agreement of the Company and the
Purchaser;
(b) by either the Purchaser or the Company (provided that the
terminating party is not then in material breach of any representation,
warranty, covenant or other agreement contained in this Agreement) if the
Closing shall not have been consummated on or before January 15, 2001;
(c) by either the Purchaser or the Company if a court of
competent jurisdiction or governmental, regulatory or administrative agency or
commission shall have issued a non-appealable final order, decree or ruling or
taken any other action having the effect of permanently restraining, enjoining
or otherwise prohibiting the transactions contemplated by this Agreement;
14
<PAGE> 16
(d) by either the Purchaser or the Company (provided that the
terminating party is not then in material breach of any representation,
warranty, covenant or other agreement contained in this Agreement) in the event
of a material breach by the other party of any representation or warranty
contained in this Agreement which cannot be or has not been cured within 30 days
after the giving of written notice to the breaching party of such breach; or
(e) by either the Purchaser or the Company (provided that the
terminating party is not then in material breach of any representation,
warranty, covenant or other agreement contained in this Agreement) in the event
of a material breach by the other party of any covenant or agreement contained
in this Agreement which cannot be or has not been cured within 30 days after the
giving of written notice to the breaching party of such breach.
7.2 Effect of Termination. In the event of the termination of this
Agreement pursuant to Section 7.1, this Agreement shall forthwith become void
and there shall be no liability on the part of any party hereto (or any
stockholder, director, officer, partner, employee, agent, consultant or
representative of such party) except as set forth in this Section 7.2, provided
that nothing contained in this Agreement shall relieve any party from liability
for any breach of this Agreement and provided further that Article IX shall
survive termination of this Agreement.
ARTICLE VIII.
INDEMNIFICATION
8.1 Indemnification by Company. In addition to all other sums due
hereunder or provided for in this Agreement, the Company agrees to indemnify and
hold harmless the Purchaser and its Affiliates and their respective officers,
directors, members, agents, employees and partners (each, a "Purchaser
Indemnified Party") to the fullest extent permitted by law from and against any
and all losses, claims, damages, expenses (including reasonable fees,
disbursements and other charges of counsel), damages or other liabilities
("Losses") resulting from any breach of any representation or warranty, covenant
or agreement of the Company in the Transaction Documents or any legal,
administrative or other actions (including actions brought by any equity holders
of the Company or derivative actions brought by any Person claiming through the
Company or in the Company's name), proceedings or investigations (whether formal
or informal), or written threats thereof, based upon, relating to or arising out
of the Transaction Documents, the transactions contemplated hereby or thereby,
or any Purchaser Indemnified Party's role therein or in the transactions
contemplated hereby or thereby; provided, however, that the Company shall not be
liable under this Section 8.1: (a) for any amount paid in settlement of claims
without the Company's consent (which consent shall not be unreasonably withheld)
or (b) to the extent that it is finally judicially determined that such Losses
resulted primarily from the willful misconduct, bad faith or gross negligence of
such Purchaser Indemnified Party or a breach of the Purchaser's representations
in Article IV; provided, further, that if and to the extent that such
indemnification is unenforceable for any reason, the Company shall make the
maximum contribution to the payment and satisfaction of such indemnified
liability that shall be permissible under applicable laws. In connection with
the obligation of the Company to indemnify for expenses as set forth above, the
Company further agrees to reimburse each Purchaser Indemnified Party for all
such expenses (including reasonable fees, disbursements and other charges of
counsel) as they are incurred by such Purchaser Indemnified Party; provided,
however, that if a Purchaser Indemnified Party is reimbursed hereunder for any
expenses, such
15
<PAGE> 17
reimbursement of expenses shall be refunded to the extent it is finally
judicially determined that the Losses in question resulted primarily from the
willful misconduct, bad faith or gross negligence of such Purchaser Indemnified
Party.
8.2 Indemnification by the Purchaser. The Purchaser, jointly and
severally, agrees to indemnify and hold harmless the Company and its Affiliates
and their respective officers, directors, agents and employees (each a "Company
Indemnified Party") to the fullest extent permitted by law from and against any
and all Losses resulting from any breach of any representation or warranty,
covenant or agreement of the Purchaser in this Agreement; provided, however,
that the Purchaser shall not be liable under this Section 8.2 to the extent that
it is finally judicially determined that such Losses resulted primarily from the
willful misconduct, bad faith or gross negligence of such Company Indemnified
Party or a breach of the Company's representations in Article III; provided,
further, that if and to the extent that such indemnification is unenforceable
for any reason, the Purchaser shall make the maximum contribution to the payment
and satisfaction of such indemnified liability that shall be permissible under
applicable laws. In connection with the obligation of the Purchaser to indemnify
for expenses as set forth above, the Purchaser further agrees to reimburse each
Company Indemnified Party for all such expenses (including reasonable fees,
disbursements and other charges of counsel) as they are incurred by such Company
Indemnified Party; provided, however, that if a Company Indemnified Party is
reimbursed hereunder for any expenses, such reimbursement of expenses shall be
refunded to the extent it is finally judicially determined that the Losses in
question resulted primarily from the willful misconduct, bad faith or gross
negligence of such Company Indemnified Party. Notwithstanding anything to the
contrary contained herein, in no event shall the maximum aggregate liability of
the Purchaser under this Article VIII exceed an amount equal to the Purchase
Price.
8.3 Notification. Each indemnified party under this Article VIII will,
promptly (and in any event within twenty (20) Trading Days), after the receipt
of notice of the commencement of any action or other proceeding against such
indemnified party in respect of which indemnity may be sought from the
indemnifying party under this Article VIII, notify the indemnifying party in
writing of the commencement thereof. The failure of any indemnified party so to
notify the indemnifying party of any such action shall not relieve the
indemnifying party from any liability that it may have to such indemnified party
pursuant to this Article VIII, except to the extent that such failure causes
actual damage to the indemnifying party. In case any such action or other
proceeding shall be brought against any indemnified party and it shall notify
the indemnifying party of the commencement thereof, the indemnifying party shall
be entitled to participate therein and, to the extent that it may wish, to
assume the defense thereof, with counsel reasonably satisfactory to such
indemnified party; provided, however, that any indemnified party may, at its own
expense, retain separate counsel to participate in such defense. Notwithstanding
the foregoing, in any action or proceeding in which both the indemnifying party
and an indemnified party is, or is reasonably likely to become, a party, such
indemnified party shall have the right to employ separate counsel at the
indemnifying party's expense and to control its own defense of such action or
proceeding if, in the written opinion of counsel to such indemnified party, (a)
there are or may be legal defenses available to such indemnified party or to
other indemnified parties that are different from or additional to those
available to the indemnifying party or (b) any conflict or potential conflict
exists between the indemnifying party and such indemnified party that would make
such separate representation advisable; provided,
16
<PAGE> 18
however, that in no event shall the indemnifying party be required to pay fees
and expenses under this Article VIII for more than one firm of attorneys in any
jurisdiction in any one legal action or group of related legal actions. The
indemnifying party shall not, without the consent of the indemnified party
(which consent shall not be unreasonably withheld), consent to the entry of any
judgment or enter into any settlement that does not include as an unconditional
term thereof the giving by the claimant or plaintiff to such indemnified party
of a release from all liability in respect to such claim or litigation or that
requires action other than the payment of money by the indemnifying party. The
rights accorded to indemnified parties hereunder shall be in addition to any
rights that any indemnified party may have at common law, by separate agreement
or otherwise.
8.4 Registration Rights Agreement. Notwithstanding anything to the
contrary in this Article VIII, the indemnification and contribution provisions
of the Registration Rights Agreement shall govern any claim made with respect to
registration statements filed pursuant thereto or sales made thereunder.
8.5 Survival of Provisions of Article VIII. The obligations of the
Company under this Article VIII shall survive until the first Trading Day
following the filing with the SEC of the Company's Quarterly Report on Form 10-Q
for the quarter ending September 30, 2001.
ARTICLE IX.
MISCELLANEOUS
9.1 Expenses. At the Closing, the Company shall pay, or reimburse the
Purchaser for all reasonable costs and expenses incurred by the Purchaser in
connection with the negotiation, execution, delivery, performance and
consummation of this Agreement and the transactions contemplated herein; but in
no event shall the Company be obligated to pay or reimburse the Purchaser for
any such costs and expenses in excess of $100,000 without the Company's prior
written approval, which approval shall not be unreasonably withheld. The Company
shall pay its own expenses incurred in connection with the negotiation,
execution, delivery, performance and consummation of this Agreement and the
transactions contemplated hereby. Notwithstanding the foregoing, if this
Agreement is terminated prior to the Closing (a) by either party, when the
Purchaser has failed to consummate the transactions contemplated hereby
following the satisfaction or waiver of the conditions set forth in Section 6.1,
then the Purchaser shall pay the expenses set forth in this Section 9.1, (b) by
either party, when the Company is in breach of any provision of this Agreement
or has otherwise failed to perform, then the Company shall pay the expenses set
forth in this Section 9.1, (c) by either party, when both the Purchaser has
failed to consummate the transactions contemplated hereby following the
satisfaction or waiver of the conditions set forth in Section 6.1 and the
Company is in breach of any provision of this Agreement or has otherwise failed
to perform, then the Purchaser and the Company shall equally pay the expenses
set forth in this Section 9.1 and (d) by either party, when neither the
Purchaser nor the Company is in breach of any provision of this Agreement or has
otherwise failed to perform, then the Company shall pay the expenses set forth
in this Section 9.1.
17
<PAGE> 19
9.2 Public Announcements. The Purchaser and the Company shall consult
with each other before issuing any press release with respect to this Agreement
or the transactions contemplated hereby and neither shall issue any such press
release or make any such public statement without the prior consent of the
other, which consent shall not be unreasonably withheld; provided, however, that
a party may, without the prior consent of the other party, issue such press
release or make such public statement as may upon the advice of counsel be
required by law if it has used commercially reasonable efforts to consult with
the other party prior thereto. The parties hereby consent to the filing of the
Transaction Documents by the Company with the NYSE and the SEC.
9.3 Restrictive Legends. The Shares may not be transferred without
registration under the Securities Act and applicable state securities laws
unless counsel to the Company shall advise the Company that such transfer may be
effected without such registration. Each certificate representing any of the
foregoing shall bear a legend in substantially the following form:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 OR THE SECURITIES LAWS OF ANY STATE
AND MAY NOT BE SOLD OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN
EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT AND APPLICABLE STATE
SECURITIES LAWS OR AN APPLICABLE EXEMPTION TO THE REGISTRATION
REQUIREMENTS OF SUCH ACT OR SUCH LAWS.
9.4 Further Assurances. At any time or from time to time after the
Closing, the Company, on the one hand, and the Purchaser, on the other hand,
agree to cooperate with each other, and at the request of the other party, to
execute and deliver any further instruments or documents and to take all such
further action as the other party may reasonably request in order to evidence or
effectuate the consummation of the transactions contemplated hereby or by the
other Transaction Documents and to otherwise carry out the intent of the parties
hereunder or thereunder.
9.5 Successors and Assigns. This Agreement shall bind and inure to the
benefit of the Company and the Purchaser and the respective successors,
permitted assigns, heirs and personal representatives of the Company and the
Purchaser; provided, that, the Company may not assign its rights or obligations
under this Agreement to any Person without the prior written consent of the
Purchaser; provided, further, that the Purchaser may not assign its rights or
obligations under this Agreement to any Person (other than an Affiliate) without
the prior written consent of the Company.
9.6 Entire Agreement. This Agreement and the other Transaction
Documents contain the entire agreement between the parties with respect to the
subject matter hereof and supersede all prior and contemporaneous arrangements
or understandings with respect thereto; provided that the Confidentiality
Agreement between the parties (or their Affiliates) will remain in full force
and effect in accordance with its terms. To the extent that any term contained
in the
18
<PAGE> 20
Confidentiality Agreement is inconsistent or conflicts with any term contained
herein, the provisions of this Agreement shall control.
9.7 Notices. All notices, requests, consents and other communications
hereunder to any party shall be deemed to be sufficient if contained in a
written instrument delivered in person or sent by telecopy, nationally
recognized overnight courier or first class registered or certified mail, return
receipt requested, postage prepaid, addressed to such party at the address set
forth below or such other address as may hereafter be designated in writing by
such party to the other party:
(a) If to the Company, to:
Water Pik Technologies, Inc.
23 Corporate Plaza, Suite 246
Newport Beach, California 92660
Attn: Richard D. Tipton, Esq.
With a copy to:
Riordan & McKinzie
Plaza Tower
600 Anton Boulevard, 18th Floor
Costa Mesa, California 92626
Attn: Elaine R. Levin, Esq.
(b) If to the Purchaser, to:
Special Value Investment Management, LLC
11100 Santa Monica Boulevard, Suite 210
Los Angeles, California 90025
Attn: Mark K. Holdsworth
With a copy to:
Latham & Watkins
12636 High Bluff Drive, Suite 300
San Diego, California 92130
Attn: Craig M. Garner, Esq.
All such notices, requests, consents and other communications shall be deemed to
have been given or made if and when delivered personally or by overnight courier
to the parties at the above addresses or sent by electronic transmission, with
confirmation received (or at such other address for a party as shall be
specified by like notice).
9.8 Amendments. The terms and provisions of this Agreement may be
modified or amended, or any of the provisions hereof waived, temporarily or
permanently, in a writing executed and delivered by the Company and the
Purchaser.
19
<PAGE> 21
9.9 Waiver. No waiver of any of the provisions of this Agreement shall
be deemed to or shall constitute a waiver of any other provision hereof (whether
or not similar). No delay on the part of any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof.
9.10 Counterparts. This Agreement may be executed in any number of
counterparts, and each such counterpart hereof shall be deemed to be an original
instrument, but all such counterparts together shall constitute but one
agreement.
9.11 Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed to be a part
of this Agreement.
9.12 Nouns and Pronouns. Whenever the context may require, any pronouns
used herein shall include the corresponding masculine, feminine or neuter forms,
and the singular form of names and pronouns shall include the plural and vice
versa.
9.13 GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT GIVING EFFECT TO
THE PRINCIPLES OF CONFLICTS OF LAW.
9.14 Submission to Jurisdiction. Each of the parties hereto hereby
irrevocably and unconditionally consents to submit to the exclusive jurisdiction
of the courts of the State of California and of the United States of America, in
each case located in the County of Los Angeles, for any Litigation arising out
of or relating to this Agreement or the other Transaction Documents and the
transactions contemplated hereby and thereby (and agrees not to commence any
Litigation relating hereto or thereto except in such courts), and further agrees
that service of any process, summons, notice or document by U.S. registered mail
to its respective address set forth in this Agreement shall be effective service
of process for any Litigation brought against it in any such court. Each of the
parties hereto hereby irrevocably and unconditionally waives any objection to
the laying of venue of any Litigation arising out of this Agreement or the
transactions contemplated hereby in the courts of the State of California or the
United States of America, in each case located in the County of Los Angeles,
hereby further irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that any such Litigation brought in any such court has
been brought in an inconvenient forum.
9.15 WAIVER OF JURY TRIAL. THE COMPANY AND THE PURCHASER HEREBY WAIVE
ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING
OR LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT OR THE OTHER TRANSACTION DOCUMENTS.
9.16 Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid, but if any
provision of this Agreement is held to be invalid or unenforceable in any
respect, such invalidity or unenforceability shall not render invalid or
unenforceable any other provision of this Agreement.
20
<PAGE> 22
9.17 Survival of Representations Warranties and Indemnities. All
representations and warranties contained herein or made in writing by the
Company in connection herewith shall survive the execution and delivery of this
Agreement and the Shares, regardless of any investigation made by the Purchaser
or on the Purchaser's behalf until the first Trading Day following the filing
with the SEC of the Company's Quarterly Report on Form 10-Q for the quarter
ending September 30, 2001.
[Signature Page Follows]
21
<PAGE> 23
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective officers thereunto duly authorized as of the day
and year first above written.
COMPANY:
WATER PIK TECHNOLOGIES, INC.,
a Delaware corporation
By: /s/ MICHAEL P. HOOPIS
------------------------------------
Name: Michael P. Hoopis
Title: President and Chief Executive
Officer
PURCHASER:
SPECIAL VALUE BOND FUND, LLC,
a Delaware limited liability company
By: SVIM/MSM, LLC
Its: Managing Member
By: TENNENBAUM & CO., LLC,
Its: Managing Member
By: /s/ MICHAEL E. TENNENBAUM
----------------------------
Name: Michael E. Tennenbaum
Title: Managing Member
SPECIAL VALUE BOND FUND II, LLC,
a Delaware limited liability company
By: SVIM/MSM II, LLC
Its: Managing Member
By: TENNENBAUM & CO., LLC,
Its: Managing Member
By: /s/ MICHAEL E. TENNENBAUM
----------------------------
Name: Michael E. Tennenbaum
Title: Managing Member
[SIGNATURE PAGE TO STOCK PURCHASE AGREEMENT]
<PAGE> 24
SCHEDULE I
PURCHASER NO. OF SHARES
--------- -------------
Special Value Bond Fund, LLC 300,000
Special Value Bond Fund II, LLC 1,673,685
---------
Total 1,973,685
<PAGE> 25
EXHIBITS
Exhibit A - Form of Registration Rights Agreement
Exhibit B - Press Release
