Exhibit 10.1


 


GUARANTEE


 


Guarantee,
dated as of January 6, 2006 (this “Guarantee”), by Carlyle Europe
Partners II, L.P. (the “Guarantor”), in favor of Water Pik Technologies, Inc.
(the “Guaranteed Party”).


 


1.             GUARANTEE.  To induce the Guaranteed Party to
enter into an Agreement and Plan of Merger, dated as of January 6, 2006
(as amended, amended and restated, supplemented or otherwise modified from time
to time, the “Merger Agreement”), among Coast Acquisition Corporation, a
Delaware corporation in which the Guarantor proposes to invest (“Parent”),
Coast Merger Corporation, a Delaware corporation (“Merger Sub”), and the
Guaranteed Party, pursuant to which Merger Sub will merge with and into the
Guaranteed Party, the Guarantor hereby absolutely, unconditionally and
irrevocably guarantees to the Guaranteed Party (the “Guaranty”), as
primary obligor and not merely as surety, the due and punctual payment and
performance in full of all Guarantied Obligations (as defined below) when the
same become due, whether at stated maturity, by acceleration, demand or
otherwise (including amounts that would become due but for the operation of the
automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C.
§ 362(a)).  The term “Guarantied
Obligations” includes (x) eighty percent (80%) of each and every obligation
under Section 7.3(b)(ii) of the Merger Agreement; and (y) the
Guaranteed Party’s reasonable costs and expenses (including reasonable
attorneys’ fees and expenses) in connection with a claim against the Guarantor
that results in a judgment against the Guarantor for such portion of the
amounts set forth in Section 7.3(b)(ii) of the Merger Agreement as
Guarantor guarantees hereunder, together with interest on the amounts set forth
in Section 7.3(b)(ii) of the Merger Agreement for such portion of the
amounts set forth in Section 7.3(b)(ii) of the Merger Agreement as
Guarantor guarantees hereunder, at the prime rate of Citibank, N.A. in effect
on the date such payment was required to be made.  In no event shall Guarantor’s liability under
this Guarantee exceed $8 million plus, any amounts guaranteed by
Guarantor pursuant to clause (y) of the definition of Guarantied Obligations
above (the “Cap”).


 


The Guarantor
agrees that its obligations are irrevocable, absolute, independent and
unconditional, may not be assigned, whether by operation of law or otherwise,
without the prior written consent of the Company and will not be affected by
any circumstance that constitutes a legal or equitable discharge of a guarantor
or surety other than payment and performance in full of the Guarantied
Obligations.  This Guaranty is a guaranty
of payment and performance when due and not of collectibility.  To the fullest extent permitted by law, the
Guarantor hereby waives any defenses or benefits that may be derived from or
afforded by law which limit the liability of or exonerate guarantors or
sureties (other than fraud or willful misconduct by the Guaranteed Party or any
of its “Subsidiaries” (as defined in the Merger Agreement)), or which may
conflict with the terms of this Guaranty. 
Without limiting the foregoing, the Guarantor’s responsibility hereunder
shall not be discharged, released, diminished,or impaired in whole or in part
by (a) any setoff, counterclaim, defense, act or occurrence that the
Guarantor may have against the Company as a result of or arising out of this or
any other transaction, or (b) the renewal, extension, modification, waiver
or alteration of this Merger Agreement, The Guarantor waives notice of (1) acceptance
of this obligation, (2) the creation, renewal, extension, modification, 


 





















 


waiver or alteration of this Agreement, (3) any
breach of or default in the performance of Parent of Merger Sub of their
obligations under the Merger Agreement and (4) all other matters of notice
of which the Guarantor might otherwise be entitled to receive (except for
notices to be provided to Parent and Latham & Watkins LLP in
accordance with Section 8.2 of the Merger Agreement).  The Company may enforce the Guarantor’s
obligations without first (A) suing Parent or Merger Sub, (B) joining
Parent or Merger Sub in any suit against the Guarantor, (C) enforcing any
rights and remedies against Parent or Merger Sub or (D) otherwise pursuing
or asserting any claims or rights against Parent or Merger Sub or any of their
respective property.


 


2.             REPRESENTATIONS AND WARRANTIES.  The
Guarantor hereby represents and warrants that:


 


(a)           the execution, delivery and
performance of this Guarantee have been duly authorized by all necessary action
and do not contravene any provision of the Guarantor’s charter, partnership
agreement, operating agreement or similar organizational documents or any law,
regulation, rule, decree, order, judgment or contractual restriction binding on
the Guarantor or its assets;


 


(b)           all consents, approvals,
authorizations, permits of, filings with and notifications to, any governmental
authority necessary for the due execution, delivery and performance of this
Guarantee by the Guarantor have been obtained or made and all conditions
thereof have been duly complied with, and no other action by, and no notice to
or filing with, any governmental authority or regulatory body is required in
connection with the execution, delivery or performance of this Guarantee;


 


(c)           this Guarantee constitutes a
legal, valid and binding obligation of the Guarantor enforceable against the
Guarantor in accordance with its terms, subject to (i) the effects of
bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or
other similar laws affecting creditors’ rights generally, and (ii) general
equitable principles (whether considered in a proceeding in equity or at law);
and


 


(d)           the Guarantor has the
financial capacity to pay and perform its obligations under this Guarantee, and
all funds necessary for the Guarantor to fulfill its Guarantied Obligations
under this Guarantee shall be available to the Guarantor for so long as this
Guarantee shall remain in effect in accordance with Section 5 hereof.


 


3.             NO ASSIGNMENT.  Neither the Guarantor nor the
Guaranteed Party may assign its rights, interests or obligations hereunder to
any other person (except by operation of law) without the prior written consent
of the Guaranteed Party or the Guarantor, as the case may be.


 


4.             NOTICES.  All notices and other
communications hereunder shall be in writing in the English language and shall
be given (a) on the date of delivery if delivered personally, (b) on
the first business day following the date of dispatch if delivered by a
nationally recognized next-day courier service, (c) on the fifth business
day following the date of mailing if delivered by registered or certified mail
(postage prepaid, return receipt requested) or (d) if sent by facsimile
transmission, when transmitted and receipt is confirmed.  All notices to the 


 





















 


Guarantor hereunder shall be
delivered as set forth below or to such other address or facsimile number as
the Guarantor shall have notified the Guaranteed Party in a written notice
delivered to the Guaranteed Party in accordance with the Merger Agreement:


 


Carlyle Europe Partners II, L.P.


112, avenue Kléber


75016 Paris


France


Facsimile:  +33 1 53 70 35 30


Attention:  Franck Falezan


 


with a copy to:


 


Latham & Watkins LLP


555 Eleventh Street, N.W.


Tenth Floor


Washington, DC 20004


Facsimile:  (202) 637-2201


Attention:  David S. Dantzic


 


5.             CONTINUING GUARANTEE.  This
Guarantee shall remain in full force and effect and
shall be binding on the Guarantor, its successors and assigns until all of the
Guarantied Obligations and all amounts payable under this Guarantee have been
indefeasibly paid, observed, performed or satisfied in full.  Notwithstanding the foregoing, this Guarantee
shall terminate and the Guarantor shall have no further obligations under this
Guarantee as of the earlier of (i) the Effective Time (as defined in the
Merger Agreement), (ii) the termination of the Merger Agreement, other
than pursuant to Section 7.1(e) and (iii) the one year
anniversary of the date hereof, unless the Guaranteed Party has commenced an
action with respect to this Guarantee in a court of competent jurisdiction, in
which case this Guarantee shall remain in full force and effect until final
resolution of such action.


 


6.             GOVERNING LAW.  This Guarantee shall be governed
by, and construed in accordance with, the laws of the State of Delaware
applicable to contracts executed in and to be performed in that State.  All claims, suits, actions or proceedings
arising out of or relating to this Guarantee shall be heard and determined
exclusively in the Court of Chancery or other courts of the State of
Delaware.  The parties hereto hereby (a) submit
to the exclusive jurisdiction of the Court of Chancery or other courts of the
State of Delaware for the purpose of any Action arising out of or relating to
this Guarantee brought by any party hereto, and (b) irrevocably waive, and
agree not to assert by way of motion, defense, or otherwise, in any such
Action, any claim that it is not subject personally to the jurisdiction of the
Court of Chancery or other courts of the State of Delaware, that its property
is exempt or immune from attachment or execution, that the Action is brought in
an inconvenient forum, that the venue of the Action is improper, or that this
Guarantee or the transactions contemplated hereby may not be enforced in or by
any of the above-named courts.


 





















 


7.             WAIVER OF JURY TRIAL.  EACH OF
THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS GUARANTEE OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.


 


8.             COUNTERPARTS.  This Guarantee may be executed
and delivered (including by facsimile transmission) in one or more
counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same instrument.


 





















 


IN WITNESS
WHEREOF, the Guarantor has caused this Guarantee to be executed and delivered
as of the date first written above by its officer thereunto duly authorized.


 


 


	
   

  	
  Carlyle Europe Partners II L.P.

  
	
   

  	
   

  
	
   

  	
    By: CEP II GP L.P.

  
	
   

  	
    Its: General Partner

  
	
   

  	
   

  
	
   

  	
       By: CEP II Limited

  
	
   

  	
       Its: General Partner

  
	
   

  	
   

  
	
   

  	
   

  	
  By:

  	
  /s/ John Harris

  	
   

  
	
   

  	
   

  	
   

  	
  Name: John Harris

  	
   

  
	
   

  	
   

  	
   

  	
  Title: Director

  	
   

  
						



 





















 


	
   

  	
  ACKNOWLEDGED AND AGREED:

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  WATER PIK TECHNOLOGIES, INC.

  
	
   

  	
   

  
	
   

  	
   

  
	
   

  	
  By:

  	
  /s/ Michael P. Hoopis

  	
   

  
	
   

  	
   

  	
  Name:

  	
  Michael P. Hoopis

  
	
   

  	
   

  	
  Title:

  	
  Chief Executive Officer