EXECUTION COPY
EXHIBIT 99.3
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is entered into as of
June 28, 2005 by and among: (i) Jarden Corporation, a Delaware corporation (the
"Company"); (ii) The Jordan ▇. ▇▇▇▇ Family Limited Partnership, a Delaware
limited partnership ("▇▇▇▇ FLP"), (iii) Jordan ▇. ▇▇▇▇ ("▇▇▇▇"); (iv) Berkshire
Investors LLC, a Delaware limited liability company ("Berkshire LLC"); (v)
Berkshire Fund IV, Limited Partnership, a Delaware limited partnership
("Berkshire IV"); (vi) Berkshire Fund V, Limited Partnership, a Delaware limited
partnership ("Berkshire V"); and (vii) the other AI Shareholders (as defined in
the Merger Agreement) who became parties hereto by signing a joinder signature
page and are holders of Shares (collectively, the "Other Holders", and together
with ▇▇▇▇ FLP, ▇▇▇▇, Berkshire LLC, Berkshire IV and Berkshire V, the "Specified
Holders").
WHEREAS, this Agreement is made in connection with the Agreement and Plan
of Merger, dated as of June 28, 2005 (the "Merger Agreement"), among the
Company, The ▇▇▇▇▇▇ Group, Inc., a Massachusetts corporation, and the Specified
Holders, among other parties; and
WHEREAS, in order to induce Company to enter into the Merger Agreement and
consummate the Merger, the Specified Holders have agreed to accept part of the
Merger Consideration in the form of Shares (as defined below); and
WHEREAS, in order to induce the Specified Holders to accept part of the
Merger Consideration in the form of Shares, the Company has agreed to provide
the registration rights set forth in this Agreement;
WHEREAS, the execution of this Agreement by the Specified Parties is a
condition to Closing under the Merger Agreement; and
WHEREAS, the Specified Holders have appointed and delegated Berkshire
Partners, LLC, as Shareholders' Representative in the Merger Agreement (the
"Shareholders' Representative") as its agent for certain matters, including the
receipt of certain notifications and the authorization of certain acts
contemplated hereby.
NOW, THEREFORE, in consideration of the foregoing and the representations,
warranties, covenants and agreements set forth herein, the parties hereby agree
as follows:
1. Definitions
Capitalized terms used herein without definition have the respective
meanings set forth in the Merger Agreement. As used in this Agreement, the
following terms have the following meanings:
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC
promulgated thereunder.
Prospectus: The prospectus included in any Registration
Statement (including, without limitation, a
prospectus that discloses information previously
omitted from a prospectus filed as part of an
effective registration statement in reliance
upon Securities Act Rule 430A), as amended or
supplemented by any prospectus supplement, with
respect to the terms of the offering of any
portion of the Registrable Securities covered by
such Registration Statement and all other
amendments and supplements to such prospectus,
including post-effective amendments, and all
material incorporated by reference or deemed to
be incorporated by reference in such prospectus.
Registrable Securities: All Shares and any securities issued or issuable
in respect of any of the Shares pursuant to any
stock split, stock dividend, recapitalization,
or similar event, provided, that a security
shall cease to be a Registerable Security upon
(A) sale pursuant to a Registration Statement or
Rule 144 under the Securities Act or other
exemption from registration under the Securities
Act or (B) such security becomes eligible for
sale by the Specified Holders pursuant to Rule
144(k).
Registration Expenses: All expenses in connection with the performance
of or compliance with Sections 2 and 3 hereof by
the Company (other than selling commissions,
brokerage discounts and fees of counsel,
accountants or advisors of the Specified
Holders, except as provided in 4(c)) including,
without limitation, all registration and filing
fees, printing expenses, listing fees, fees and
disbursements of counsel and accountants for the
Company, blue sky fees and expenses; provided,
however, that the Company shall pay 50% of the
Specified Holders' fees of counsel up to a
maximum amount of $5,000.
Registration Statement: Any registration statement of the Company filed
under the Securities Act that covers any of the
Registrable Securities pursuant to the
provisions of this Agreement, including, without
limitation, the Prospectus, amendments and
supplements to such registration statement
(including, without limitation, post-effective
amendments), all exhibits, and all material
incorporated by reference or deemed to be
incorporated reference in such registration
statement.
Rule 144: Rule 144 under the Securities Act, as such Rule
may be amended from time to time, or any similar
rule or
regulation hereafter adopted by the SEC having
substantially the same effect as such Rule
(excluding Rule 144A).
Securities Act: The Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC
thereunder.
SEC: Securities and Exchange Commission.
Shares: The Purchaser Common Stock comprising Stock
Consideration issued to (i) each of the
Specified Holders that become an AI Shareholder
pursuant to the Merger Agreement on or prior to
the Closing Date and (ii) such other AI
Shareholders as Purchaser shall, in its sole
discretion, designate in writing.
2. Registration
(a) Registration of Registrable Securities. The Company shall use its
commercially reasonable efforts to prepare and file with the SEC a Registration
Statement for an offering to be made on a continuous basis pursuant to Rule 415
(or any appropriate similar rule that may be adopted by the SEC) under the
Securities Act covering the Registrable Securities (the "Registration"),
provided that in no event shall the Company fail to file the Registration
Statement later than November 15, 2005 (the date of such filing being the
"Filing Date"). The Registration shall be on an appropriate form permitting
registration of such Registrable Securities for resale by the Specified Holders.
(b) Effectiveness. Upon filing of the Registration Statement, the Company
shall use its commercially reasonable efforts to cause the Registration to be
declared effective under the Securities Act (the date of effectiveness being the
"Effective Date") and to remain continuously effective for a period of three
years thereafter (the "Registration Period"). Without limiting the foregoing,
except as provided herein, the Company will prepare and file with the SEC, as
promptly as is reasonably practicable, such amendments and supplements to any
Registration Statement as may be necessary to keep such Registration Statement
continuously effective through the Registration Period.
3. Expenses and Procedures
(a) Expenses of Registration. The Company shall pay all Registration
Expenses. Selling commissions, brokerage discounts and fees of counsel (except
as provided in Section 4(c)) and advisors for the Specified Holders shall be
paid solely by the Specified Holders; provided, however, that the Company shall
pay 50% of the Specified Holders' fees of counsel up to a maximum amount of
$5,000.
(b) Registration Procedures. Subject to compliance by the Company with
applicable securities laws, rules and regulations, and the rules and regulations
of the primary exchange on
which Company Common Stock is listed, in the case of each registration,
qualification or compliance effected by the Company pursuant to Section 2
hereof:
(i) The Company will keep the Shareholders' Representative advised as
to the initiation of registration, qualification and compliance and as to
the completion thereof. At its own expense, the Company will furnish to the
Shareholders' Representative such number of copies of the Registration
Statement and all other documents incident thereto as the Shareholders'
Representative from time to time may reasonably request.
(ii) To the extent necessary for the disposition of the Shares, the
Company will use its commercially reasonable efforts to register or qualify
any Registrable Securities under such state securities or blue sky laws of
such jurisdictions as the Specified Holders or the Shareholders'
Representative shall reasonably request, and do any and all other acts and
things which may be necessary or advisable to enable each Specified Holder
to consummate the disposition in such jurisdictions of its Registrable
Securities covered by the Registration Statement; provided, however, that
the Company shall not be obligated to file any general consent to service
of process or to qualify as a foreign corporation or subject the Company to
taxation in any jurisdiction in which it is not so qualified or subject.
(iii) For so long as any Specified Holder owns Registrable Securities
covered by any Registration Statement the Company will promptly notify the
Shareholders' Representative, at any time when a Prospectus relating
thereto is required to be delivered under the Securities Act, of 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 then existing, and at the request of the
Shareholders' Representative prepare and furnish to the Shareholders'
Representative, 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 purchasers of such Registrable 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 then
existing.
(iv) The Company will use its commercially reasonable efforts to list
such Registrable Securities on the primary securities exchange on which the
Company Common Stock is then listed and to cause such Registrable
Securities to remain listed on any such national securities exchange during
the Registration Period.
(v) The Company will provide a transfer agent and registrar for all
Registrable Securities on or before the Effective Date.
(vi) In connection with the preparation and filing of the Registration
Statement, and before filing the Registration Statement, the Company will
give the Shareholders' Representative, the Specified Holders and their
respective counsel and accountants, the reasonable opportunity to review
the Registration Statement, each
Prospectus included therein or filed or to be filed with the SEC, each
amendment thereof or supplement thereto and give each of the aforementioned
Persons such opportunities to discuss the business of the Company with its
officers as shall be reasonably necessary to conduct a reasonable
investigation within the meaning of the Securities Act.
(vii) In the event of any underwritten public offering, the Company
will enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the managing underwriter of
such offering.
(c) Information. The Company may require each seller of Registrable
Securities as to which any registration is being effected to furnish such
information regarding the distribution of such Registrable Securities as the
Company may from time to time reasonably request, and the Company may exclude
from such registration the Registrable Securities of any seller who unreasonably
fails to furnish such information after receiving such request. Such information
shall be true and complete and it shall not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements made, in the light of the circumstances under which they were made,
not misleading.
(d) Delay or Suspension. Notwithstanding anything herein to the contrary,
the Company may, at any time, suspend the effectiveness of any Registration
Statement for a period of not more than 45 days in the aggregate in any period
of twelve consecutive calendar months (a "Suspension Period") by giving notice
to the Specified Holders and/or the Shareholders' Representative, if the Company
shall have determined that the Company may be required to disclose any material
corporate development which disclosure may have a material adverse effect on the
Company. The Specified Holders agree by acquisition of such Registrable
Securities that, upon receipt of any notice from the Company of a Suspension
Period, the Specified Holders shall forthwith discontinue disposition of such
Registrable Securities under such Registration Statement or Prospectus until the
Specified Holders (i) are advised in writing by the Company that the use of the
applicable Prospectus may be resumed, (ii) have received copies of a
supplemental or amended prospectus, if applicable, and (iii) have received
copies of any additional or supplemental filings which are incorporated or
deemed to be incorporated by reference in such Prospectus. The Company shall
prepare, file and furnish to the Shareholders' Representative promptly upon the
expiration of any Suspension Period, appropriate supplements or amendments, if
applicable, to the Prospectus and appropriate documents, if applicable,
incorporated by reference in the Registration Statement.
4. Indemnification
(a) Indemnification by the Company. The Company shall indemnify and hold
harmless, to the fullest extent permitted by law, the Specified Holders, their
respective officers, directors, stockholders, partners, members, managers,
advisors, agents and employees, each person who controls any Specified Holder
(within the meaning of Section 15 of the Securities Act or Section 20 of the
Exchange Act), and the officers, directors, stockholders, partners, members,
managers, advisors, agents and employees of any such controlling person, from
and against all losses, claims, damages, liabilities, costs (including, without
limitation, all reasonable attorneys' fees) and expenses (collectively,
"Losses"), as incurred, arising out of or based upon
any untrue statement or alleged untrue statement of a material fact contained or
incorporated by reference in any Registration Statement, Prospectus or
preliminary prospectus, or arising out of or based upon any omission or alleged
omission of a material fact required to be stated therein or necessary to make
the statements therein in light of the circumstances under which they were made
(in the case of any Prospectus) not misleading, except to the extent such untrue
statement or omission is contained in any information furnished in writing by a
Specified Holder to the Company specifically for use in such Registration
Statement, Prospectus or preliminary prospectus or any amendment or supplement
thereto; provided, however, that the Company shall not be liable in any such
case to the extent that any such Loss arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission made in
any preliminary prospectus or Prospectus if (i) such Specified Holder failed to
send or deliver a copy of the Prospectus or Prospectus supplement with or prior
to the delivery of written confirmation of the sale of Registrable Securities,
and the Prospectus or any supplement thereto would have corrected such untrue
statement or omission or (ii) such Specified Holder sends or delivers a copy of
the Prospectus or any supplement thereto after receiving written notification
from the Company that the Prospectus or any such supplement contains an untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements made, in the light of the circumstances under which
they were made, not misleading. If requested, the Company shall also indemnify
selling brokers and similar securities industry professionals participating in
the distribution, their officers, directors, agents and employees and each
person who controls such persons (within the meaning of Section 15 of the
Securities Act or Section 20 of the Exchange Act) to the same extent as provided
above with respect to the indemnification of the Specified Holders. Such
indemnifications shall remain in full force and effect regardless of any
investigation made by or on behalf of any Specified Holder and any of its
officers, directors, stockholders, partners, members, managers, advisors,
agents, employees or controlling persons (within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act) after the date hereof and
shall survive any transfer of Registrable Securities.
(b) Indemnification by the Specified Holders. Each Specified Holder hereby
severally, and not jointly (provided, that any claims against Berkshire LLC,
Berkshire IV or Berkshire V shall be the joint and several obligations of each
and such parties and proved further that any claims against ▇▇▇▇ or ▇▇▇▇ FLP V
shall be the joint and several obligations of each and such parties), agrees to
indemnify and hold harmless, to the fullest extent permitted by law, the
Company, its officers, directors, stockholders, partners, members, managers,
advisors, agents and employees, each person who controls the Company (within the
meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act)
and the officers, directors, stockholders, partners, members, managers,
advisors, agents and employees of any such controlling person, from and against
all Losses arising out of or based upon (y) any untrue statement of a material
fact contained or incorporated by reference in any Registration Statement,
Prospectus or preliminary prospectus, or arising out of or based upon any
omission of a material fact required to be stated therein or necessary to make
the statements therein in light of the circumstances under which they were made
(in the case of any Prospectus) not misleading, to the extent, but only to the
extent, that such untrue statement or omission is contained in any information
furnished in writing by a Specified Holder to the Company specifically for use
in such Registration Statement, Prospectus or preliminary prospectus or any
amendment or supplement thereto or (z) such Specified Holder sending or
delivering a copy of the Prospectus or any
supplement thereto to another party after receiving written notification from
the Company that the Prospectus or any such supplement contains an untrue
statement of a material fact or omits to state a material fact necessary in
order to make the statements made, in the light of the circumstances under which
they were made, not misleading. If requested, each Specified Holder shall also
indemnify selling brokers and similar securities industry professionals
participating in the distribution, their officers, directors, agents and
employees and each person who controls such persons (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same
extent as provided above with respect to the indemnification of the Company. The
Company shall be entitled to receive indemnities from accountants, underwriters,
selling brokers, dealer managers and similar securities industry professionals
participating in the distribution to the same extent as provided above with
respect to information so furnished by such persons for inclusion in any
Registration Statement, Prospectus or preliminary prospectus, provided that the
failure of the Company to obtain any such indemnity shall not relieve the
Company of any of its obligations hereunder. Such indemnifications shall remain
in full force and effect regardless of any investigation made by or on behalf of
the Company of the information provided by the Specified Holders, or [▇▇▇▇▇] or
any Subsidiary of [▇▇▇▇▇] prior to Closing, and any of their respective
officers, directors, stockholders, partners, members, managers, advisors,
agents, employees or controlling persons (within the meaning of Section 15 of
the Securities Act or Section 20 of the Exchange Act) before or after the date
hereof and shall survive any transfer of Registrable Securities.
(c) Conduct of Indemnification Proceedings. If any action or proceeding
(including any governmental investigation or inquiry) shall be brought or any
claim shall be asserted against, without limitation, any Person entitled to
indemnity hereunder (an "Indemnified Party"), such Indemnified Party shall
promptly notify the party from which such indemnity is sought (the "Indemnifying
Party") in writing, and the Indemnifying Party shall assume the defense thereof,
including the employment of counsel reasonably satisfactory to the Indemnified
Party and the payment of all fees and expenses incurred in connection with the
defense thereof; provided, however, that the failure or delay of an Indemnified
Party to so notify the Indemnifying Party shall release the Indemnifying Party
from its obligations hereunder only if and then only to the extent the
Indemnifying Party is prejudiced by such failure or delay. All such fees and
expenses (including, without limitation, any fees and expenses incurred in
connection with investigating or preparing to defend such action or proceeding)
shall be paid to the Indemnified Party, as incurred, within 20 days of written
notice thereof to the Indemnifying Party; provided, however, that if the
Indemnifying Party is subsequently determined not to have been liable to the
Indemnified Party in accordance with this Section 4, such fees and expenses
shall be returned promptly to the Indemnifying Party. Any such Indemnified Party
shall have the right to employ separate counsel if any such action, claim or
proceeding and to participate in the defense thereof, but the fees and expenses
of such counsel shall be borne solely by such Indemnified Party unless (i) the
Indemnifying Party has agreed to pay such fees and expenses, (ii) the
Indemnifying Party shall have failed promptly to assume the defense of such
action, claim or proceeding and to employ counsel reasonably satisfactory to the
Indemnified Party in any such action, claim or proceeding, or (iii) the named
parties to any such action, claim or proceeding (including any impleaded
parties) include both such Indemnified Party and the Indemnifying Party, and
such Indemnified Party shall have been advised by counsel that there may be one
or more legal defenses available to it that are different from or additional to
those available to the
Indemnifying Party (in which case, if such Indemnified Party notifies the
Indemnifying Party in writing that it elects to employ separate counsel at the
expense of the Indemnifying Party, the Indemnifying Party shall not have the
right to assume the defense of such action, claim or proceeding on behalf of
such indemnified party, it being understood, however, that the Indemnifying
Party shall not, in connection with any one such action, claim or proceeding or
separate but substantially similar or related actions, claims or proceedings in
the same jurisdiction arising out of the same general allegations or
circumstances, be liable for the fees and expenses of more than one counsel
(together with appropriate local counsel) at any time for all such Indemnified
Parties unless in the opinion of counsel for such Indemnified Party a conflict
of interest may exist between such Indemnified Party and any other of such
Indemnified Parties, or among any of such Indemnified Parties, with respect to
such action, claim or proceeding, in which event the Indemnifying Party shall be
obligated to pay the fees and expenses of such additional counsel or counsels).
No Indemnifying Party will consent to entry of any judgment or enter into any
settlement that does not include as an unconditional term thereof the release of
such Indemnified Party from all liability in respect to such claim or litigation
without the written consent (which consent will not be unreasonably withheld) of
the indemnified party. No Indemnified Party shall consent to entry of any
judgment or enter into any settlement without the written consent (which consent
will not be unreasonably withheld) of the Indemnifying Party from which
indemnity or contribution is sought.
(d) Contribution. If the indemnification provided for in this Section 4 is
unavailable to an Indemnified Party under Section 4(a) or (b) hereof (other than
by reason of exceptions provided in those Sections) in respect of any Losses,
then each applicable Indemnifying Party in lieu of indemnifying such Indemnified
Party shall contribute to the amount paid or payable by such Indemnified Party
as a result of such Losses (a) in such proportion as is appropriate to reflect
the relative fault of the Indemnifying Party and Indemnified Party in connection
with the actions, statements or omissions that resulted in such Losses as well
as any other relevant equitable considerations, or (b) if the allocation
provided by clause (a) above is not permitted under applicable law or provides a
lesser sum to the Indemnified Party than the amount payable hereunder, in the
proportion as is appropriate to reflect not only the relative fault of the
Indemnifying Party and the Indemnified Party, but also the relative benefits
received by the Indemnifying Party on the one hand and the Indemnified Party on
the other, as well as any other relevant equitable considerations. The relative
fault of such Indemnifying Party and the Indemnified Party shall be determined
by reference to, among other things, whether any action in question, including
any untrue statement or alleged untrue statement of a material fact or omission
or alleged omission of a material fact, has been taken or made by, or relates to
information supplied by, such Indemnifying Party or Indemnified Party, and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such action, statement or omission. The amount paid or
payable by a party as a result of any Losses shall be deemed to include, subject
to the limitations set forth in Section 4(c) hereof, any legal or other fees or
expenses reasonably incurred by such party in connection with any action, suit,
claim, investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 4(d) were determined by pro rata
allocation or by any other method of allocation that does not take into account
the equitable considerations referred to in the immediately preceding
paragraph. 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.
(e) Limitation. In no event shall the liability of any Specified Holder
under this Section 4, whether by way of indemnification or contribution, exceed
the net proceeds to such Specified Holder from the sale of Registrable
Securities pursuant to such Registration Statement.
(f) Survival. This Article 4 shall survive any termination or expiration of
this Agreement.
5. Reports Under Exchange Act
With a view to making available to the Specified Holders the benefits of
Rule 144 or any successor rule adopted by the SEC, in the event the Company's
Registration Statement with respect to the Shares is not then effective with the
SEC, the Company agrees to:
(a) use its commercially reasonable efforts to make and keep public
information available, as those terms are understood and defined in
Rule 144;
(b) use its commercially reasonable efforts to file with the SEC in a
timely manner all reports and other documents required of the Company
under the Securities Act or the Exchange Act; and
(c) furnish to any Specified Holder within a reasonable time following
receipt of a written request therefor (1) a written statement by the
Company as to its compliance with the reporting requirements of Rule
144, the Securities Act and the Exchange Act, (2) a copy of the most
recent annual or quarterly report of the Company and such other
reports and documents so filed by the Company, and (3) such other
information as may be reasonably requested in availing any Specified
Holder to sell Shares pursuant to Rule 144.
6. Miscellaneous
(a) Amendments and Waivers. The provisions of this Agreement, including the
provisions of this sentence, may not be waived, amended, modified or
supplemented without the written consent of the Shareholders' Representative or
of Specified Holders holding at least a majority in interest of the Registrable
Securities. No waiver of any provision of this Agreement shall be deemed or
shall constitute a waiver of any other provision hereof (whether or not
similar), shall constitute a continuing waiver unless otherwise expressly
provided nor shall be effective unless in writing and executed by the waiving
party.
(b) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, registered first-class
mail, next day air courier or telecopy: (i) if to a Specified Holder, initially
to Shareholders' Representative, Berkshire Partners LLC, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ , telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇, attention ▇▇▇▇▇▇▇ ▇▇▇▇▇ and to
such Specified Holder at the address that may be set forth beneath
its name on the signature page hereto, with a copy to ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ &
▇▇▇▇ LLP, Prudential Tower, ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇,
telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇, attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, P.C.; and (ii) if to the
Company, initially at ▇▇▇ ▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, telecopier
no. ▇▇▇-▇▇▇-▇▇▇▇, attention ▇▇▇▇▇ ▇. ▇▇▇▇, with a copy to ▇▇▇▇ ▇▇▇▇▇▇▇, P.C.,
▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, telecopier no. (▇▇▇) ▇▇▇-▇▇▇▇,
attention ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq. and ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Esq.; and
thereafter at such other address, notice of which is given in accordance with
the provisions of this Section 7(b). All such notices and communications shall
be deemed to have been duly given: (i) when delivered by hand, if personally
delivered; (ii) two business days after being deposited in the mail, postage
prepaid, if mailed; (iii) one business day after being sent by next day air
courier; and (iv) when receipt acknowledged, if telecopied.
(c) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same Agreement. Each Other Holder shall
become a party hereto by signing a Joinder Signature Page to this Agreement.
(d) Headings. The headings in his Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(e) Governing Law; Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS
MADE AND PERFORMED IN SUCH STATE AND WITHOUT REGARD TO CONFLICTS OF LAW
DOCTRINES. EACH PARTY TO THIS AGREEMENT, BY ITS EXECUTION HEREOF, (I) HEREBY
IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF UNITED STATES DISTRICT
COURT FOR THE SOUTHERN DISTRICT OF NEW YORK (OR IF JURISDICTION THERETO IS NOT
PERMITTED BY LAW, THE STATE COURTS OF THE STATE OF NEW YORK LOCATED IN NEW YORK
COUNTY) FOR THE PURPOSE OF ANY ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN
CONTRACT, TORT OR OTHERWISE), INQUIRY PROCEEDING OR INVESTIGATION ARISING OUT OF
OR BASED UPON THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF, (II)
HEREBY WAIVES TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, AND AGREES NOT TO
ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH ACTION, ANY
CLAIM THAT IT IS NOT SUBJECT PERSONALLY TO THE JURISDICTION OF THE ABOVE-NAMED
COURT, THAT ITS PROPERTY IS EXEMPT OR IMMUNE FROM ATTACHMENT OR EXECUTION, THAT
ANY SUCH PROCEEDING BROUGHT IN ONE OF THE ABOVE-NAMED COURT IS IMPROPER, OR THAT
THIS AGREEMENT OR THE SUBJECT MATTER HEREOF MAY NOT BE ENFORCED IN OR BY SUCH
COURT AND (III) HEREBY AGREES NOT TO COMMENCE ANY ACTION, CLAIM, CAUSE OF ACTION
OR SUIT (IN CONTRACT, TORT OR OTHERWISE), INQUIRY PROCEEDING OR INVESTIGATION
ARISING OUT OF OR BASED UPON THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER
HEREOF OTHER THAN BEFORE THE ABOVE-NAMED COURT NOR TO MAKE ANY MOTION OR TAKE
ANY OTHER ACTION SEEKING OR INTENDING TO CAUSE THE TRANSFER OR REMOVAL OF ANY
SUCH ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT, TORT OR OTHERWISE),
INQUIRY, PROCEEDING OR INVESTIGATION TO ANY COURT OTHER THAN THE ABOVE-NAMED
COURT WHETHER ON THE GROUNDS OF INCONVENIENT FORUM OR OTHERWISE. EACH PARTY
HEREBY CONSENTS TO SERVICE OF PROCESS IN ANY SUCH PROCEEDING
IN ANY MANNER PERMITTED BY NEW YORK LAW, AND AGREES THAT SERVICE OF PROCESS BY
REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AT ITS ADDRESS SPECIFIED
PURSUANT TO SECTION 6(b) IS REASONABLY CALCULATED TO GIVE ACTUAL NOTICE.
(f) Severability. If any term, provision, covenant or restriction of this
Agreement is held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions set forth herein shall remain in full force and effect and shall in
no way be affected, impaired or invalidated, and the parties hereto shall use
their best efforts to find and employ an alternative means to achieve the same
or substantially the same result as that contemplated by such term, provision,
covenant or restriction. It is hereby stipulated and declared to be the
intention of the parties that they would have executed the remaining terms,
provisions, covenants and restrictions without including any of such that may be
hereafter declared invalid, void or unenforceable.
(g) Successors and Assigns. All of the terms and provisions of this
Agreement shall be binding upon and shall inure to the benefit of the parties
hereto and their respective permitted transferees and assigns (each of which
transferees and assigns shall be deemed to be a Specified Holder for all
purposes hereof); provided, however, that (a) no party may assign less than all
of its rights and obligations hereunder; and (b) no Specified Holder may assign
its rights hereunder unless (i) it transfers all Shares issued in its name to
its proposed assignees and (ii) its proposed assignees assumes all of the
obligations of such Specified Holder hereunder. The rights of the Specified
Holders hereunder and under any Registration Statement may be also exercised by
the Paying Agent (as defined in the Seller Contribution and Indemnity Agreement,
referred to in the Merger Agreement) or its successor, acting in its capacity as
agent for the Specified Holders.
(h) Entire Agreement. This Agreement constitutes the entire agreement among
the parties hereto pertaining to the subject matter hereof and supersede all
prior and contemporaneous agreements, understandings, negotiations and
discussions, whether oral or written, of the parties with respect to such
subject matter.
(i) Waiver of Jury Trial. the parties hereby waive, and covenant that they
will not assert (whether as plaintiff, defendant or otherwise), any right to
trial by jury in any action arising in whole or in part under or in connection
with this Agreement or any of the transactions contemplated hereby, whether now
existing or hereafter arising, and whether sounding in contract, tort or
otherwise. The parties agree that any of them may file a copy of this paragraph
with any court as evidence of the knowing, voluntary and bargained-for agreement
among the parties irrevocably to waive its right to trial by jury.
[SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
Company: JARDEN CORPORATION
BY: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Executive Vice President
of Finance
Specified Holders: BERKSHIRE INVESTORS LLC
BY: /s/ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇
Title: Managing Member
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
BERKSHIRE FUND IV, LIMITED
PARTNERSHIP
By: Fourth Berkshire Associates LLC,
General Partner
BY: /s/ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇
Title: Managing Member
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(signature page continues)
BERKSHIRE FUND V, LIMITED
PARTNERSHIP
By: Fifth Berkshire Associates LLC,
General Partner
BY: /s/ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇
Title: Managing Member
Address: ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
/s/ Jordan ▇. ▇▇▇▇
-------------------------------------
JORDAN ▇. ▇▇▇▇
Address: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.:
THE JORDAN ▇. ▇▇▇▇ FAMILY LIMITED
PARTNERSHIP
BY: /s/ Jordan ▇. ▇▇▇▇
---------------------------------
Name: Jordan ▇. ▇▇▇▇,
Title: General Partner
Address: ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.:
OTHER HOLDERS:
[See Separate Joinder Signature Pages]