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EXHIBIT 4.1
REGISTRATION RIGHTS AGREEMENT
DATED AS OF JANUARY 3, 2001
BY AND AMONG
WATER PIK TECHNOLOGIES, INC.,
SPECIAL VALUE BOND FUND, LLC
AND
SPECIAL VALUE BOND FUND II, LLC
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REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is
entered into as of January 3, 2001 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 and the Purchaser have entered into a
Stock Purchase Agreement (the "Purchase Agreement") of even date herewith
pursuant to which the Purchaser is purchasing 1,973,685 shares (the "Shares") of
the Company's Common Stock, par value $0.01 per share (the "Common Stock"); and
WHEREAS, a condition to the Purchaser's obligations under the
Purchase Agreement is that the Company enter into this Agreement to grant the
Purchaser certain registration and other rights with respect to such purchased
Shares of Common Stock.
AGREEMENT
NOW, THEREFORE, in consideration of the promises and mutual
agreements contained herein, the parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
1.1 Definitions. As used herein, unless the context otherwise requires,
the following terms have the following respective meanings:
"Affiliate" means, 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.
"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 the Purchase
Agreement.
"Common Stock" shall have the meaning set forth in the
preamble of this Agreement.
"Company" shall have the meaning set forth in the preamble of
this Agreement.
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"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any similar or sucessor Federal statute, and the rules and
regulations of the SEC thereunder, all as the same shall be in effect at the
time.
"NYSE" means the New York Stock Exchange.
"Permitted Transferee" means, with respect to the Purchaser,
any sale or other transfer to (a) an Affiliate or constituent partner or limited
liability company member of the Purchaser (including limited partners, retired
partners, retired members, and spouses, ancestors, descendants and other members
of such partners' or members' immediate families, and trusts for the benefit of
any such party) or (b) any Person who acquires at least 1,000,000 shares of
Registrable Securities (as appropriately adjusted for stock splits,
combinations, recapitalizations and the like).
"Person" means and includes an individual, a corporation, a
limited liability company, an association, a partnership, a trust or estate, a
government or any department or agency thereof.
"Postponement Period" shall have the meaning set forth in
Section 2.1(i).
"Purchase Agreement" shall have the meaning set forth in the
preamble of this Agreement.
"Purchaser" shall have the meaning set forth in the preamble
of this Agreement.
"Registrable Securities" means (a) the Shares, (b) 386,800
shares of Common Stock previously purchased by the Purchaser and (c) any other
shares of Common Stock issued by way of a stock dividend, stock split or reverse
stock split or in connection with a combination of shares, recapitalization,
merger, consolidation or similar event, with respect to or exchange for or in
replacement of the shares listed in (a) and (b). As to any particular
Registrable Securities, such securities shall cease to be Registrable Securities
when (i) a registration statement covering such securities shall have become
effective under the Securities Act and such securities shall have been disposed
of in accordance with such registration statement, (ii) Rule 144 (or any
successor provision) under the Securities Act is available for the sale of all
the Purchaser's Registrable Securities during any three (3)-month period without
registration or (iii) such securities shall have ceased to be outstanding.
"Registration Expenses" means all expenses incident to the
registration and disposition of the Registrable Securities pursuant to Section 2
hereof, including, without limitation, all registration, filing and applicable
national securities exchange fees, all fees and expenses of complying with state
securities or blue sky laws (including fees and disbursements of counsel to the
underwriters or the Purchaser in connection with "blue sky" qualification of the
Registrable Securities and determination of their eligibility for investment
under the laws of the various jurisdictions), all word processing, duplicating
and printing expenses, all messenger and delivery expenses, the fees and
disbursements of counsel for the Company and of its independent public
accountants, including the expenses of "cold comfort" letters or any special
audits required by, or incident to, such registration, all fees and
disbursements of underwriters (other than underwriting discounts and
commissions), and all fees and expenses of one counsel to the
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Purchaser and all holders of Registrable Securities. The Registration Expenses
shall not include the Selling Expenses.
"SEC" means the Securities and Exchange Commission or any
other governmental authority at the time administering the Securities Act or the
Exchange Act.
"Securities Act" means the Securities Act of 1933, 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.
"Selling Expenses" means underwriting discounts, selling fees
and commissions and stock transfer taxes applicable to the Registrable
Securities, which shall be paid by the Purchaser.
"Shares" shall have the meaning set forth in the preamble of
this Agreement.
"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.
ARTICLE II.
REGISTRATION RIGHTS
2.1 Registration on Request.
(a) Request. At any time after one (1) year following the
Closing, the Purchaser shall have the right to require the Company to effect the
registration under the Securities Act of all or at least 500,000 shares of the
Registrable Securities, by delivering a written request therefor to the Company,
signed by the holders of at least a majority of the Registrable Securities then
outstanding, specifying the number of shares of Registrable Securities and the
intended method of distribution. The Company shall (i) use commercially
reasonable efforts to effect the registration under the Securities Act
(including by means of a shelf registration pursuant to Rule 415 under the
Securities Act if so requested in such request and if the Company is then
eligible to use such a registration) of the Registrable Securities which the
Company has been so requested to register by the Purchaser, for distribution in
accordance with the intended method of distribution set forth in the written
request delivered by the Purchaser, such registration to be filed as
expeditiously as possible (but in any event within 30 days of receipt of a
written request) and (ii) if requested by the Purchaser, use commercially
reasonable efforts to obtain acceleration of the effective date of the
registration statement relating to such registration.
(b) Registration of Other Securities. Whenever the Company
shall effect a registration pursuant to this Section 2.1 in connection with an
underwritten offering by the Purchaser of Registrable Securities, no securities
other than Registrable Securities shall be included among the securities covered
by such registration if inclusion of such other securities would result in a
request by the managing underwriter for a reduction in the number of Registrable
Securities requested to be so registered. If such Registrable Securities
requested to be included in a registration pursuant to this Section 2.1,
together with other securities requested
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to be included in such registration, would result in a request by the managing
underwriter for a reduction in the number of such Registrable Securities and
other securities requested to be so registered, then the Company will be
required to include in such registration only the amount of Registrable
Securities and other securities which it is so advised can be included in such
registration. In such event, securities shall be registered, in the following
priority: (i) first, the Registrable Securities requested by the Purchaser to be
included in such registration statement pursuant to this Section 2.1, (ii)
second, the securities proposed to be included by the Company and (iii) third,
any other securities of the Company requested to be included in such
registration by any other holders having the right to include securities on a
pro rata basis in accordance with the number of securities proposed to be
included by such other holders.
(c) Registration Statement Form. Subject to clause (a)(i)
above, Registrations under this Section 2.1 shall be on such appropriate
registration form of the SEC as shall be selected by the Company and as shall be
reasonably acceptable to the Purchaser. The Company agrees to include in any
such registration statement all information which, in the opinion of counsel to
the Purchaser and counsel to the Company, is necessary or desirable to be
included therein.
(d) Expenses. In the event of any underwritten public offering
requested in accordance with this Section 2.1 at any time after one (1) year
following the Closing but at or prior to three (3) years following the Closing,
the Registration Expenses for the offering shall be paid as follows: (i) the
filing fee payable to the SEC to register the securities and the listing fees
payable to the applicable national securities exchange shall be paid by the
Company; (ii) the costs of any "cold comfort" letters or any special accounting
audits, printing fees, the expenses of legal counsel for the underwriters and
all other fees, disbursements and expenses of the underwriters (other than the
Selling Expenses, which shall be paid by the Purchaser), shall be paid 50% by
the Company and 50% by the Purchaser; and (iii) all other Registration Expenses
shall be paid 60% by the Company and 40% by the Purchaser. In the event of any
underwritten public offering requested in accordance with this Section 2.1 at
any time after three (3) years following the Closing, the Company shall pay all
Registration Expenses, unless the last reported sale price of the Common Stock
on the NYSE with respect to the trading day immediately preceeding the date of
the written request for registration exceeds $15.00 per share (as appropriately
adjusted for stock splits, combinations, recapitalizations and the like), in
which event the Purchaser shall pay all Registration Expenses (other than the
filing fee payable to the SEC to register the securities and the listing fees
payable to the applicable national securities exchange, which shall be paid
exclusively by the Company). In the event of any non-underwritten public
offering requested in accordance with this Section 2.1, the Company shall pay
all Registration Expenses.
(e) Effective Registration Statement. A registration requested
pursuant to this Section 2.1 shall not be deemed to have been effected
(including for purposes of paragraph (h) of this Section 2.1) (i) unless a
registration statement with respect thereto has become effective and has been
kept continuously effective for a period of at least 180 days (or such shorter
period which shall terminate when all the Registrable Securities covered by such
registration statement have been sold or withdrawn pursuant thereto), (ii) if
after it has become effective, such registration is interfered with by any stop
order, injunction or other order or requirement of the SEC or other governmental
agency or court for any reason not attributable to the Purchaser and
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has not thereafter become effective or (iii) if the conditions to closing
specified in the underwriting agreement, if any, entered into in connection with
such registration are not satisfied or waived.
(f) Selection of Underwriters. The underwriters of each
underwritten offering, if any, of the Registrable Securities to be so registered
shall be selected by the party paying the Registration Expenses under Section
2.1(d), or if such Registration Expenses are shared, then mutually by the
Company and the holders of a majority of the Registrable Securities
participating in the offering (including the Purchaser).
(g) Right to Withdraw. If the managing underwriter of any
underwritten offering shall advise the Purchaser that (i) the Registrable
Securities covered by the registration statement cannot be sold in such offering
within a price range acceptable to the Purchaser or (ii) the amount of
Registrable Securities requested to be included in such offering is reduced
below fifty percent (50%) of the number of Registrable Securities so requested
to be included, then the Purchaser shall have the right to notify the Company in
writing that it has determined that the registration statement be abandoned or
withdrawn, in which event the Company shall abandon or withdraw such
registration statement. In the event of such abandonment or withdrawal, such
request shall not be counted for purposes of the request for registration to
which the Purchaser is entitled pursuant to this Section 2.1.
(h) Limitations on Registration on Request. The Purchaser
shall be entitled to require the Company to effect, and the Company shall be
required to effect, no more than one (1) registration pursuant to this Section
2.1.
(i) Postponement. The Company shall be entitled once in any
twelve-month period to postpone for a reasonable period of time (but not
exceeding 120 days) (the "Postponement Period") the filing of any registration
statement required to be prepared and filed by it pursuant to this Section 2.1
if the Board of Directors of the Company determines, in good faith, that such
registration and offering would be seriously detrimental to the Company and its
stockholders and promptly gives the Purchaser written notice of such
determination, containing a general statement of the reasons for such
postponement and an approximation of the anticipated delay. If the Company shall
so postpone the filing of a registration statement, (i) the Company shall use
commercially reasonable efforts to limit the delay to as short a period as is
practicable and (ii) the Purchaser shall have the right to withdraw the request
for registration by giving written notice to the Company at any time and, in the
event of such withdrawal, such request shall not be counted for purposes of the
request for registration to which the Purchaser is entitled pursuant to this
Section 2.1.
2.2 Incidental Registration.
(a) Right to Include Registrable Securities. If the Company at
any time proposes to register any Common Stock for its own account or for the
account of any other stockholder under the Securities Act by registration on
Form S-1, S-2 or S-3 or any successor or similar form(s) (except registrations
on any such Form or similar form(s) solely for registration of securities in
connection with an employee benefit plan, stock incentive or dividend
reinvestment plan or a merger, acquisition or consolidation or incidental to an
issuance of
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securities under Rule 144A under the Securities Act or any offering to the
Company's existing security holders), it will each such time give prompt written
notice to the Purchaser of its intention to do so and of the Purchaser's rights
under this Section 2.2. At any time or from time to time after the Closing, upon
the written request of the Purchaser (which request shall specify the maximum
number of Registrable Securities intended to be disposed of by the Purchaser),
made as promptly as practicable and in any event within thirty (30) days after
the receipt of any such notice, the Company shall use commercially reasonable
efforts to effect the registration under the Securities Act of all Registrable
Securities which the Company has been so requested to register by the Purchaser;
provided, however, that if at any time after giving written notice of its
intention to register any securities and prior to the effective date of the
registration statement filed in connection with such registration, the Company
shall determine for any reason not to register or to delay registration of such
securities, the Company shall give written notice of such determination and its
reasons therefor to the Purchaser and (i) in the case of a determination not to
register, shall be relieved of its obligation to register any Registrable
Securities in connection with such registration (but not from any obligation of
the Company to pay the Registration Expenses in connection therewith), without
prejudice, however, to the rights of the Purchaser to request that such
registration be effected as a registration under Section 2.1 and (ii) in the
case of a determination to delay registering, shall be permitted to delay
registering any Registrable Securities, for such period of time as the Board of
Directors of the Company determines. No registration effected under this Section
2.2 shall relieve the Company of its obligation to effect any registration upon
request under Section 2.1.
(b) Expenses. The Company shall pay all Registration Expenses
in connection with any registration requested pursuant to this Section 2.2.
(c) Right to Withdraw. The Purchaser shall have the right to
withdraw its request for inclusion of its Registrable Securities in any
registration statement pursuant to this Section 2.2 at any time by giving
written notice to the Company of its request to withdraw.
(d) Priority in Incidental Registrations. If the managing
underwriter of any underwritten offering shall inform the Company by writing of
its belief that the number of Registrable Securities requested to be included in
such registration, when added to the number of other securities to be offered in
such registration, would jeopardize such offering, then the Company shall
include in such registration, only that number of such securities, including
Registrable Securities, which the underwriter determines in its sole discretion
will not jeopardize the success of the offering (such securities to be included
in the following priority: (i) first, the securities proposed to be included by
the Company, (ii) second, the Registrable Securities requested by the Purchaser
to be included in such registration and (iii) third, any other securities of the
Company requested to be included in such registration by any other holders
having the right to include securities on a pro rata basis in accordance with
the number of securities proposed to be included by such other holders).
2.3 Registration Procedures. If and whenever the Company is required to
effect the registration of any Registrable Securities under the Securities Act
as provided in Sections 2.1 and 2.2 hereof, the Company shall as expeditiously
as possible:
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(a) prepare and file with the SEC as soon as practicable the
requisite registration statement to effect such registration (and shall include
all financial statements required by the SEC to be filed therewith) and
thereafter use commercially reasonable efforts to cause such registration
statement to become effective; provided, however, in the case of an underwritten
offering under Section 2.1, that before filing such registration statement
(including all exhibits) or any amendment or supplement thereto or comparable
statements under securities or blue sky laws of any jurisdiction, the Company
shall as promptly as practicable furnish such documents to the Purchaser and
each underwriter, if any, participating in the offering of the Registrable
Securities and their respective counsel, which documents will be subject to the
review and comments of the Purchaser, each underwriter and their respective
counsel; provided, further, in the case of a non-underwritten offering under
Section 2.1 or any offering under Section 2.2, that before filing any such
documents, the Company shall as promptly as practicable furnish to the Purchaser
and its counsel any portion of such documents that relate to the Purchaser or
its intended method of distribution, which portion will be subject to the review
and comments of the Purchaser and its counsel;
(b) in the case of an underwritten offering under Section 2.1,
notify the Purchaser of the SEC's requests for amending or supplementing the
registration statement and the prospectus; and prepare and file with the SEC
such amendments and supplements to any registration statement under this
Agreement and any prospectus used in connection therewith as may be necessary to
keep such registration statement effective and to comply with the provisions of
the Securities Act with respect to the disposition of all Registrable Securities
covered by such registration statement for a period of at least twelve (12)
months or such shorter period as shall be required for the disposition of all of
such Registrable Securities in accordance with the intended method of
distribution thereof;
(c) furnish, without charge, to the Purchaser and each
underwriter such number of conformed copies of such registration statement and
of each such amendment and supplement thereto (in each case including all
exhibits), such number of copies of the prospectus contained in such
registration statement (including each preliminary prospectus and any summary
prospectus) and any other prospectus filed under Rule 424 under the Securities
Act, in conformity with the requirements of the Securities Act, and such other
documents, as the Purchaser and such underwriters may reasonably request;
(d) use commercially reasonable efforts (i) to register or
qualify all Registrable Securities and other securities covered by such
registration statement under such securities or blue sky laws of such states of
the United States of America where an exemption is not available and as the
Purchaser or any managing underwriter shall reasonably request, (ii) to keep
such registration or qualification in effect for so long as such registration
statement remains in effect and (iii) to take any other action which may be
reasonably necessary or advisable to enable the Purchaser to consummate the
disposition in such jurisdictions of the securities to be sold by the Purchaser,
except that the Company shall not for any such purpose be required to qualify
generally to do business as a foreign corporation in any jurisdiction wherein it
would not but for the requirements of this subsection (d) be obligated to be so
qualified or to consent to general service of process or subject itself to
taxation in any such jurisdiction;
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(e) use commercially reasonable efforts to cause all
Registrable Securities covered by such registration statement to be registered
with or approved by such other federal or state governmental agencies or
authorities as may be necessary in the opinion of counsel to the Company and
counsel to the Purchaser by virtue of the business and operations of the Company
to consummate the disposition of such Registrable Securities;
(f) in the case of any underwritten offering under Section
2.1, furnish to the Purchaser and each underwriter, if any, participating in the
offering of the securities covered by such registration statement, a signed
counterpart of (i) an opinion of counsel for the Company and (ii) a "comfort"
letter signed by the independent public accountants who have certified the
Company's or any other entity's financial statements included or incorporated by
reference in such registration statement, covering substantially the same
matters with respect to such registration statement (and the prospectus included
therein) and, in the case of the accountants' comfort letter, with respect to
events subsequent to the date of such financial statements, as is customarily
covered in opinions of issuer's counsel and in accountants' comfort letters
delivered to the underwriters in underwritten public offerings of securities
(and dated the dates such opinions and comfort letters are customarily dated)
and, in the case of the legal opinion, such other legal matters;
(g) promptly notify the Purchaser and each managing
underwriter, if any, participating in the offering of the securities covered by
such registration statement (i) when, in the case of an underwritten offering
under Section 2.1, such registration statement, any pre-effective amendment, the
prospectus or any prospectus supplement related thereto or post-effective
amendment to such registration statement has been filed, and, with respect to
any registration statement or any post-effective amendment under this Agreement,
when the same has become effective, (ii) in the case of an underwritten offering
under Section 2.1, of any request by the SEC for amendments or supplements to
such registration statement or the prospectus related thereto or for additional
information, (iii) of the issuance by the SEC of any stop order suspending the
effectiveness of such registration statement or the initiation of any
proceedings for that purpose, (iv) of the receipt by the Company of any
notification with respect to the suspension of the qualification of any of the
Registrable Securities for sale under the securities or blue sky laws of any
jurisdiction or the initiation of any proceeding for such purpose, (v) at any
time when a prospectus relating thereto is required to be delivered under the
Securities Act, upon discovery that, or upon the happening of any event as a
result of which, the prospectus included in such registration statement, as then
in effect, includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, in the light of the circumstances under which they were
made, and in the case of this clause (v), at the request of the Purchaser
promptly prepare and furnish to the Purchaser and each managing underwriter, if
any, participating in the offering of the Registrable Securities, a reasonable
number of copies of a supplement to or an amendment of such prospectus as may be
necessary so that, as thereafter delivered to the Purchaser of such securities,
such prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances under which
they were made and (vi) in the case of an underwritten offering, at any time
when the representations and warranties of the Company contemplated by Section
2.4 (a) or (b) hereof cease to be true and correct;
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(h) use commercially reasonable efforts to comply with all
applicable rules and regulations of the SEC, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering the
period of at least twelve months beginning with the first full calendar month
after the effective date of such registration statement, which earnings
statement shall satisfy the provisions of Section 11(a) of the Securities Act
and Rule 158 promulgated thereunder, and promptly furnish to the Purchaser a
copy of any amendment or supplement to such registration statement or
prospectus;
(i) provide and cause to be maintained a transfer agent and
registrar for all Registrable Securities covered by such registration statement
from and after a date not later than the effective date of such registration;
(j) use commercially reasonable efforts to cause all
Registrable Securities covered by such registration statement to be listed on
the NYSE or the principal securities exchange on which similar securities issued
by the Company are then listed;
(k) in the case of an underwritten offering under Section 2.1,
deliver promptly to counsel to the Purchaser and each underwriter, if any,
participating in the offering of the Registrable Securities, copies of all
correspondence between the SEC and the Company, its counsel or auditors and all
memoranda relating to discussions with the SEC or its staff with respect to such
registration statement;
(l) use commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of the registration
statement;
(m) provide a CUSIP number for all Registrable Securities, no
later than the effective date of the registration statement; and
(n) in the case of an underwritten offering under Section 2.1,
make available its senior executive officers and otherwise provide reasonable
assistance to the Purchaser and the underwriters (taking into account the needs
of the Company's business) in their marketing of Registrable Securities;
provided, that such individuals shall not be obligated to participate in any
such marketing efforts for more than five (5) business days and shall not be
obligated to travel outside of the United States on the account of any such
marketing efforts.
The Company may require the Purchaser to furnish the Company
such information regarding the Purchaser and the distribution of the Registrable
Securities as the Company may from time to time reasonably request in writing.
The Purchaser agrees that upon receipt of any notice from the
Company of the happening of any event of the kind described in paragraph
(g)(iii) or (v) of this Section 2.3, the Purchaser will, to the extent
appropriate, discontinue its disposition of Registrable Securities pursuant to
the registration statement relating to such Registrable Securities until, in the
case of paragraph (g)(v) of this Section 2.3, its receipt of the copies of the
supplemented or amended prospectus contemplated by paragraph (g)(v) of this
Section 2.3 and, if so directed by the Company, will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies, then in its
possession, of the prospectus relating to such Registrable Securities current at
the time of receipt of such notice. If the disposition by the Purchaser of its
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securities is discontinued pursuant to the foregoing sentence, the Company shall
extend the period of effectiveness of the registration statement by the number
of days during the period from and including the date of the giving of notice to
and including the date when the Purchaser shall have received copies of the
supplemented or amended prospectus contemplated by paragraph (g)(v) of this
Section 2.3; and, if the Company shall not so extend such period, the
Purchaser's request pursuant to which such registration statement was filed
shall not be counted for purposes of the request for registration to which the
Purchaser is entitled pursuant to Section 2.1 hereof.
2.4 Underwritten Offerings.
(a) Requested Underwritten Offerings. If requested by the
underwriters for any underwritten offering by the Purchaser pursuant to a
registration requested under Section 2.1, the Company shall enter into a
customary underwriting agreement (in the form of underwriting agreement used at
such time by the managing underwriter(s)) with a managing underwriter or
underwriters selected by the Purchaser. Such underwriting agreement shall be
satisfactory in form and substance to the Purchaser and shall contain such
representations and warranties by, and such other agreements on the part of, the
Company and such other terms as are generally prevailing in agreements of the
managing underwriter(s), including, without limitation, their customary
provisions relating to indemnification and contribution. The Purchaser shall be
party to such underwriting agreement and may, at its option, require that any or
all of the representations and warranties by, and the other agreements on the
part of, the Company to and for the benefit of such underwriters shall also be
made to and for the benefit of the Purchaser and that any or all of the
conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of the
Purchaser.
(b) Incidental Underwritten Offerings. In the case of a
registration pursuant to Section 2.2 hereof, if the Company shall have
determined to enter into any underwriting agreements in connection therewith,
all of the Registrable Securities to be included in such registration shall be
subject to such underwriting agreements. The Purchaser shall be party to such
underwriting agreement and may, at its option, require that any or all of the
representations and warranties by, and the other agreements on the part of, the
Company to and for the benefit of such underwriters shall also be made to and
for the benefit of the Purchaser and that any or all of the conditions precedent
to the obligations of such underwriters under such underwriting agreement be
conditions precedent to the obligations of the Purchaser.
2.5 Preparation; Reasonable Investigation. In connection with the
preparation and filing of each registration statement under the Securities Act
pursuant to an underwritten offering under Section 2.1 of this Agreement, the
Company will give the Purchaser, its underwriters, if any, and its counsel,
accountants and other representatives and agents the opportunity to participate
in the preparation of such registration statement, each prospectus included
therein or filed with the SEC, and each amendment thereof or supplement thereto,
and give each of them such access to its books and records and such
opportunities to discuss the business of the Company with its officers and
employees and the independent public accountants who have certified its
financial statements, and supply all other information reasonably requested by
each of them, as shall be necessary or appropriate, in the opinion of the
Purchaser and such
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underwriters' respective counsel, to conduct a reasonable investigation within
the meaning of the Securities Act.
2.6 Indemnification.
(a) Indemnification by the Company. The Company agrees that in
the event of any registration of any securities of the Company under the
Securities Act, the Company shall, and hereby does, indemnify and hold harmless
the Purchaser, its respective directors, officers, employees, members, partners,
agents and affiliates and each other Person who participates as an underwriter
in the offering or sale of such securities and each other Person, if any, who
controls the Purchaser or any such underwriter within the meaning of the
Securities Act, against any losses, claims, damages, or liabilities, joint or
several, to which the Purchaser or any such director, officer, employee, member,
partner, agent or affiliate or underwriter or controlling person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities, joint or several (or actions or proceedings, whether
commenced or threatened, in respect thereof), arise out of or are based upon (i)
any untrue statement or alleged untrue statement of any material fact contained
in any registration statement under which such securities were registered under
the Securities Act, any preliminary prospectus, final prospectus or summary
prospectus contained therein, or any amendment or supplement thereto, (ii) any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein in light of the
circumstances in which they were made not misleading or (iii) any violation by
the Company of any Federal, state or common law rule or regulation applicable to
the Company and relating to action required of or inaction by the Company in
connection with any such registration, and the Company shall reimburse the
Purchaser and each such director, officer, employee, member, partner, agent or
affiliate, underwriter or controlling Person for any legal or any other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, liability, action or proceeding; provided, that the Company
shall not be liable in any such case to the Purchaser or any such director,
officer, employee, member, partner, agent or affiliate, underwriter or
controlling Person to the extent that any such loss, claim, damage, liability
(or action or proceeding in respect thereof) or expense arises out of or is
based upon (i) any untrue statement or alleged untrue statement or omission or
alleged omission made in such registration statement, any such preliminary
prospectus, final prospectus, summary prospectus, amendment or supplement in
reliance upon and in conformity with written information furnished to the
Company by or on behalf of the Purchaser, specifically stating that it is for
use in the preparation thereof, (ii) any untrue statement or alleged untrue
statement of a material fact contained in any registration statement or
prospectus relating to the Registrable Securities delivered by such Person after
the Company had notified such Person in writing that such registration statement
or prospectus contained such untrue statement or alleged untrue statement, (iii)
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading after
the Company had notified such Person in writing that such registration statement
or prospectus contained such omission or alleged omission or (iv) the failure of
such Person to deliver any preliminary or final prospectus, or any amendments or
supplements thereto, required under applicable securities laws, including the
Securities Act, to be so delivered, provided that a sufficient number of copies
thereof had been previously provided by the Company to such Person. Such
indemnity shall remain in full force regardless of any investigation made by or
on behalf of the Purchaser or any such director, officer, employee,
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member, partner, agent or affiliate, underwriter or controlling Person and shall
survive the transfer of such securities by the Purchaser.
(b) Indemnification by the Purchaser. The Purchaser agrees
that in the event it includes any Registrable Securities in any registration of
any securities of the Company, the Purchaser shall, and hereby does, indemnify
and hold harmless (in the same manner and to the same extent as set forth in
paragraph (a) of this Section 2.6) the Company, and each director of the
Company, each officer, employee, agent and affiliate of the Company and each
other Person, if any, who controls the Company within the meaning of the
Securities Act, with respect to any statement or alleged statement in or
omission or alleged omission from such registration statement, any preliminary
prospectus, final prospectus or summary prospectus contained therein, or any
amendment or supplement thereto, but only to the extent such statement or
alleged statement or omission or alleged omission was made in reliance upon and
in conformity with written information furnished to the Company by or on behalf
of the Purchaser specifically stating that it is for use in the preparation of
such registration statement, preliminary prospectus, final prospectus, summary
prospectus, amendment or supplement; provided, however, that the liability of
the Purchaser under this Section 2.6(b) shall be limited to the amount of
proceeds (net of expenses and underwriting discounts and commissions) received
by the Purchaser in the offering giving rise to such liability. Such indemnity
shall remain in full force and effect, regardless of any investigation made by
or on behalf of the Company or any such director, officer or controlling Person
and shall survive the transfer of such securities by the Purchaser.
(c) Notices of Claims, etc. Promptly after receipt by an
indemnified party of notice of the commencement of any action or proceeding
involving a claim referred to in the preceding subsections of this Section 2.6,
such indemnified party shall, if a claim in respect thereof is to be made
against an indemnifying party, give written notice to the latter of the
commencement of such action or proceeding; provided, however, that the failure
of any indemnified party to give notice as provided herein shall not relieve the
indemnifying party of its obligations under the preceding subsections of this
Section 2.6, except to the extent that the indemnifying party is actually
prejudiced by such failure to give notice, and shall not relieve the
indemnifying party from any liability which it may have to the indemnified party
otherwise than under this Section 2.6. In case any such action or proceeding is
brought against an indemnified party, the indemnifying party shall be entitled
to participate therein and, unless in the opinion of outside counsel to the
indemnified party a conflict of interest between such indemnified and
indemnifying parties may exist in respect of such claim, to assume the defense
thereof, jointly with any other indemnifying party similarly notified to the
extent that it may wish, with counsel reasonably satisfactory to such
indemnified party; provided, however, that if the defendants in any such action
or proceeding include both the indemnified party and the indemnifying party and
if in the opinion of outside counsel to the indemnified party there may be legal
defenses available to such indemnified party and/or other indemnified parties
which are different from or in addition to those available to the indemnifying
party, the indemnified party or parties shall have the right to select separate
counsel to defend such action or proceeding on behalf of such indemnified party
or parties, provided, however, that the indemnifying party shall be obligated to
pay for only one counsel and one local counsel for all indemnified parties.
After notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof and approval by the indemnified party
of such counsel, the indemnifying party shall not be liable to such indemnified
party for any legal expenses subsequently incurred by the latter in connection
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with the defense thereof other than reasonable costs of investigation (unless
the first proviso in the preceding sentence shall be applicable). No
indemnifying party shall be liable for any settlement of any action or
proceeding effected without its written consent. No indemnifying party shall,
without the consent of the indemnified party (which consent shall not be
unreasonably withheld or delayed), consent to entry of any judgment or enter
into any settlement which 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.
(d) Contribution. If the indemnification provided for in this
Section 2.6 shall for any reason be held by a court to be unavailable to an
indemnified party under subsection (a) or (b) hereof in respect of any loss,
claim, damage or liability, or any action in respect thereof, then, in lieu of
the amount paid or payable under subsection (a) or (b) hereof, the indemnified
party and the indemnifying party under subsection (a) or (b) hereof shall
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating the
same), (i) in such proportion as is appropriate to reflect the relative fault of
the indemnifying party on the one hand, and the indemnified party on the other,
which resulted in such loss, claim, damage or liability, or action in respect
thereof, with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any
other relevant equitable considerations or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law or if the allocation
provided in this clause (ii) provides a greater amount to the indemnified party
than clause (i) above, in such proportion as shall be appropriate to reflect not
only the relative fault but also the relative benefits received by the
indemnifying party and the indemnified party from the offering of the securities
covered by such registration statement as well as any other relevant equitable
considerations. The parties hereto agree that it would not be just and equitable
if contributions pursuant to this Section 2.6(d) were to be determined by pro
rata allocation or by any other method of allocation which does not take into
account the equitable considerations referred to in the preceding sentence of
this Section 2.6(d). No Person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any Person who was not guilty of such fraudulent
misrepresentation. In addition, no Person shall be obligated to contribute
hereunder any amounts in payment for any settlement of any action or claim
effected without such Person's consent, which consent shall not be unreasonably
withheld. Notwithstanding anything in this subsection (d) to the contrary, no
indemnifying party (other than the Company) shall be required to contribute any
amount in excess of the proceeds (net of expenses and underwriting discounts and
commissions) received by such party from the sale of the Registrable Securities
in the offering to which the losses, claims, damages or liabilities of the
indemnified parties relate.
(e) Other Indemnification. Indemnification and contribution
similar to that specified in the preceding subsections of this Section 2.6 (with
appropriate modifications) shall be given by the Company and the Purchaser with
respect to any required registration or other qualification of securities under
any Federal, state or blue sky law or regulation of any governmental authority.
The indemnification agreements contained in this Section 2.6 shall be in
addition to any other rights to indemnification or contribution which any
indemnified party may have pursuant to law or contract and shall remain
operative and in full force and effect regardless of any investigation made by
or on behalf of any indemnified party and shall survive the transfer of any of
the Registrable Securities by the Purchaser.
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<PAGE> 15
(f) Indemnification Payments. The indemnification and
contribution required by this Section 2.6 shall be made by periodic payments of
the amount thereof during the course of the investigation or defense, as and
when bills are received or expense, loss, damage or liability is incurred.
2.7 Unlegended Certificates. In connection with the offering of any
Registrable Securities registered pursuant to this Section 2, the Company shall
(a) facilitate the timely preparation and delivery to the Purchaser and the
underwriters, if any, participating in such offering, of unlegended certificates
representing ownership of such Registrable Securities being sold in such
denominations and registered in such names as requested by the Purchaser or such
underwriters and (b) instruct any transfer agent and registrar of such
Registrable Securities to release any stop transfer orders with respect to any
such Registrable Securities.
2.8 No Required Sale. Nothing in this Agreement shall be deemed to
create an independent obligation on the part of the Purchaser to sell any
Registrable Securities pursuant to any effective registration statement.
2.9 Rule 144. The Company shall use commercially reasonable efforts to
enable holders of Registrable Securities to sell such securities without
registration under the Securities Act within the limitation of the exemptions
provided by (a) Rule 144 of the Securities Act or (b) any similar rule or
regulation hereafter adopted by the SEC including, without limiting the
generality of the foregoing, filing on a timely basis all reports required to be
filed by the Exchange Act. Upon the request of the Purchaser, the Company will
deliver to such holder a written statement as to whether it has complied with
such requirements.
ARTICLE III.
MISCELLANEOUS
3.1 Notice. 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.
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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.
3.2 Assignment; Third Party Beneficiaries. This Agreement shall be
binding upon and inure to the benefit of and be enforceable by the parties
hereto and their respective successors and permitted assigns. This Agreement may
not be assigned by the Company, without the prior written consent of the
Purchaser. The Purchaser may, at its election, at any time or from time to time,
assign its rights under this Agreement, in whole or in part, but only to a
Permitted Transferee; provided, that no such assignment will increase the total
number of registrations pursuant to Section 2.1 that the Company is required to
effect hereunder; provided, further, that the Permitted Transferee shall be
bound by all provisions of this Agreement as if the Permitted Transferee were an
original party to this Agreement.
3.3 Termination. This Agreement shall terminate and be of no further
force and effect on the earlier of (a) five (5) years from the date of this
Agreement or (b) such time as no Registrable Securities are outstanding. The
Purchaser represents and warrants to and covenants with the Company that the
Purchaser and its Affiliates will not engage, directly or indirectly, in any
short sales of the Common Stock prior to the termination of this Agreement.
3.4 Remedies. The parties hereto agree that money damages or other
remedy at law would not be sufficient or adequate remedy for any breach or
violation of, or a default under, this Agreement by them and that, in addition
to all other remedies available to them, each of them shall be entitled to an
injunction restraining such breach, violation or default or threatened breach,
violation or default and to any other equitable relief, including without
limitation specific performance, without bond or other security being required.
In any action or proceeding brought to enforce any provision of this Agreement
(including the indemnification provisions thereof), the successful party shall
be entitled to recover reasonable attorneys' fees in addition to its costs and
expenses and any other available remedy.
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3.5 No Inconsistent Agreements. The Company will not, on or after the
date of this Agreement, enter into any agreement with respect to its securities
which is inconsistent with the rights granted to the Purchaser in this Agreement
or otherwise conflicts with the provisions hereof. The Company further
represents and warrants that the rights granted to the Purchaser hereunder do
not in any way conflict with and are not inconsistent with any other agreements
to which the Company is a party or by which it is bound.
3.6 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 holders
of a majority of the outstanding Registrable Securities.
3.7 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.
3.8 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.
3.9 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.
3.10 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.
3.11 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 action or proceeding
arising out of or relating to this Agreement and the transactions contemplated
hereby (and agrees not to commence any litigation relating hereto 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 action or proceeding
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 action or proceeding 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 action or proceeding brought in any such court
has been brought in an inconvenient forum.
3.12 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 OR
PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT.
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3.13 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.
3.14 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.
3.15 Further Assurances. At any time or from time to time after the
date of this Agreement, 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
and to otherwise carry out the intent of the parties hereunder.
3.16 Entire Agreement; Effectiveness. This Agreement and the Purchase
Agreement 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.
[Signature Page Follows]
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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 REGISTRATION RIGHTS AGREEMENT]
18
