-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Coh41EsVw65IHMnnbmu+Mx31zY5KAu7oz6mIn8ubYD3UJdfzy6ftJWzLhsZiTfA8 L2qLmCV2wWJ9i7oqRnTzwg== 0000898822-04-000971.txt : 20041013 0000898822-04-000971.hdr.sgml : 20041013 20041013172645 ACCESSION NUMBER: 0000898822-04-000971 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20041013 DATE AS OF CHANGE: 20041013 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: JARDEN CORP CENTRAL INDEX KEY: 0000895655 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-MISCELLANEOUS NONDURABLE GOODS [5190] IRS NUMBER: 351828377 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-45375 FILM NUMBER: 041077660 BUSINESS ADDRESS: STREET 1: 555 THEODORE FREMD AVE CITY: RYE STATE: NY ZIP: 10580 BUSINESS PHONE: 914 967 9400 MAIL ADDRESS: STREET 1: 555 THEODORE FREMD STREET 2: AVE CITY: RYE STATE: NY ZIP: 10580 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: WARBURG PINCUS PRIVATE EQUITY VIII L P CENTRAL INDEX KEY: 0001157334 IRS NUMBER: 134161869 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 466 LEXINGTON AVENUE CITY: NEW YORK STATE: NY ZIP: 10017 BUSINESS PHONE: 2128780600 MAIL ADDRESS: STREET 1: 466 LEXINGTON AVENUE CITY: NEW YORK STATE: NY ZIP: 10017 SC 13D/A 1 oct1313d.txt SCHEDULE 13D AMENDMENT NO. 1 ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 ----------------- SCHEDULE 13D/A (Amendment No. 1) Under the Securities Exchange Act of 1934 JARDEN CORPORATION -------------------------------------------- (Name of Issuer) Common Stock, Par Value $0.01 Per Share -------------------------------------------- (Title of Class of Securities) -------------------------------------------- 471109 10 8 -------------------------------------------- (CUSIP Number) -------------------------------------------- Scott A. Arenare, Esq. Managing Director and General Counsel Warburg Pincus LLC 466 Lexington Avenue New York, New York 10017 (212) 878-0600 --------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) With a copy to: Andrew R. Brownstein, Esq. David M. Silk, Esq. Wachtell, Lipton, Rosen & Katz 51 West 52nd Street New York, New York 10019 (212) 403-1000 October 8, 2004 --------------------------------------------- (Date of Event Which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of ss.ss. 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. [ ] - -------------------------------- -------------------------------- CUSIP No. 471109 10 8 SCHEDULE 13D (Page 2 of 12) - -------------------------------- -------------------------------- - -------- ----------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS Warburg Pincus Private Equity VIII, L.P. I.R.S. Identification No. 13-4161869 - -------- ----------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - -------- ----------------------------------------------------------------------- 3 SEC USE ONLY - -------- ----------------------------------------------------------------------- 4 SOURCE OF FUNDS WC - -------- ----------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------- ----------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION Delaware - -------- ----------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES -0- ------ ------------------------------------------------ BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 4,056,120 (see Items 4 and 5) ------ ------------------------------------------------ EACH 9 SOLE DISPOSITIVE POWER REPORTING -0- ------ ------------------------------------------------ PERSON WITH 10 SHARED DISPOSITIVE POWER 4,056,120 (see Item 5) - -------- ----------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,056,120 (see Item 5) - -------- ----------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES* [ ] - -------- ----------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 12.9% (see Item 5) - -------- ----------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------- ----------------------------------------------------------------------- - -------------------------------- -------------------------------- CUSIP No. 471109 10 8 SCHEDULE 13D (Page 3 of 12) - -------------------------------- -------------------------------- - -------- ----------------------------------------------------------------------- 1 NAME OF REPORTING PERSON I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS Warburg, Pincus & Co. I.R.S. Identification No. 13-6358475 - -------- ----------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [ ] (b) [X] - -------- ----------------------------------------------------------------------- 3 SEC USE ONLY - -------- ----------------------------------------------------------------------- 4 SOURCE OF FUNDS N/A - -------- ----------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------- ----------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION New York - -------- ----------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES -0- ------ ------------------------------------------------ BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 4,056,120 (see Items 4 and 5) ------ ------------------------------------------------ EACH 9 SOLE DISPOSITIVE POWER REPORTING -0- ------ ------------------------------------------------ PERSON WITH 10 SHARED DISPOSITIVE POWER 4,056,120 (see Item 5) - -------- ----------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,056,120 (see Item 5) - -------- ----------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------- ----------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 12.9% (see Item 5) - -------- ----------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------- ----------------------------------------------------------------------- - -------------------------------- -------------------------------- CUSIP No. 471109 10 8 SCHEDULE 13D (Page 4 of 12) - -------------------------------- -------------------------------- - -------- ----------------------------------------------------------------------- 1 NAME OF REPORTING PERSONS I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS Warburg Pincus LLC I.R.S. Identification No. 13-3536050 - -------- ----------------------------------------------------------------------- 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [X] (b) [ ] - -------- ----------------------------------------------------------------------- 3 SEC USE ONLY - -------- ----------------------------------------------------------------------- 4 SOURCE OF FUNDS N/A - -------- ----------------------------------------------------------------------- 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) [ ] - -------- ----------------------------------------------------------------------- 6 CITIZENSHIP OR PLACE OF ORGANIZATION New York - -------- ----------------------------------------------------------------------- NUMBER OF 7 SOLE VOTING POWER SHARES -0- ------ ------------------------------------------------ BENEFICIALLY 8 SHARED VOTING POWER OWNED BY 4,056,120 (see Items 4 and 5) ------ ------------------------------------------------ EACH 9 SOLE DISPOSITIVE POWER REPORTING -0- ------ ------------------------------------------------ PERSON WITH 10 SHARED DISPOSITIVE POWER 4,056,120 (see Item 5) - -------- ----------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 4,056,120 (see Item 5) - -------- ----------------------------------------------------------------------- 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [ ] - -------- ----------------------------------------------------------------------- 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 12.9% (see Item 5) - -------- ----------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON OO - -------- ----------------------------------------------------------------------- This Amendment No. 1 to Schedule 13D (this "Amendment") amends and supplements the Schedule 13D (the "Schedule 13D") filed on behalf of Warburg, Pincus Private Equity VIII, L.P., a Delaware limited partnership ("WP VIII"), Warburg, Pincus & Co., a New York general partnership ("WP"), and Warburg Pincus LLC, a New York limited liability company ("WP LLC" and, together with WP VIII and WP, the "Reporting Entities"). The holdings of the Reporting Persons indicated in this Schedule 13D include the holdings of Warburg Pincus Netherlands Private Equity VIII C.V. I ("WPNPE VIII I"), Warburg Pincus Netherlands Private Equity VIII C.V. II ("WPNPE VIII II") and Warburg Pincus Germany Private Equity VIII KG ("WPGPE VIII", and together with WP VIII, WPNPE VIII I and WPNPE VIII II, the "Investors"). WP, WP LLC and the Investors are referred to in this Amendment as the "Group Members." This Schedule 13D relates to the common shares, par value $0.01, of Jarden Corporation, a Delaware corporation (the "Company"). Unless the context otherwise requires, references herein to the "Common Stock" are to the shares of common stock of the Company, par value $0.01 per share. The Group Members are making this single, joint filing because they may be deemed to constitute a "group" within the meaning of Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the "Exchange Act"). Each Group Member disclaims beneficial ownership of all shares of Common Stock as a result of the material contingencies contained in the Purchase Agreement and the Agreement (as defined below). Unless set forth below, all previous items are unchanged. Capitalized terms used herein which are not defined herein have the meanings given to them in the Schedule 13D. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION. The total amount of funds required by the Investors to purchase the securities of the Company as described herein is $300,000,710, to be furnished from the working capital of the Investors. ITEM 4. PURPOSE OF TRANSACTION. Item 4 is hereby amended and by adding the following to the end of such Item: Pursuant to an Assignment and Joinder Agreement, dated October 8, 2004 (the "Agreement"), as, by and among the Company, Catterton Partners V, L.P. ("Catterton Partners"), Catterton Partners V Offshore, L.P. ("Catterton Offshore"), Catterton Coinvest I, L.L.C. ("Catterton Coinvest," and together with Catterton Partners and Catterton Offshore, "Catterton") and the Investors, the Group Members assigned certain rights, and Catterton assumed the Group Member's related obligations, under the Purchase Agreement in connection with the purchase of the shares of Preferred Stock and Common Stock. Under the terms of the Agreement, upon the closing of the acquisition of American Household, Inc. ("AHI") by the Company, subject to the terms and subject to the conditions contained in the securities purchase agreement, dated 5 September 19, 2004, the Investors will purchase from the Company an aggregate of 612,245 shares of Common Stock, 110,204 shares of Series B Convertible Participating Preferred Stock of the Company, par value $0.01 per share ("Series B Preferred Stock"), and 171,429 shares of Series C Mandatory Convertible Participating Preferred Stock, par value $0.01 per share of the Company ("Series C Preferred Stock," together with Series B Preferred Stock, the "Preferred Stock" or the "Convertible Securities" and, together with the Common Stock and the Series B Preferred Stock, the "Securities") and the aggregate purchase price to be paid for these shares of Common Stock, the Series B Preferred Stock and the Series C Preferred Stock by the Investors is $300,000,710. CLOSING IN ESCROW. The closing in escrow as described in the Schedule 13D occurred on October 11, 2004. At such time as the Purchase Price is needed in connection with the AHI Acquisition, and in accordance with the terms of the Escrow Agreement, the Purchase Price will be released from escrow for use in consummating the AHI Acquisition and the securities will be released from escrow and delivered. The Purchase Agreement and the Agreement may be terminated (i) if the stock certificates relating to the securities have been released to the Company and the cash proceeds (and all interest earned thereon) have been released pursuant to the directions provided by WP VIII in connection with the termination of the AHI Acquisition in accordance with the terms of the Escrow Agreement or (ii) by mutual agreement of the parties. If the AHI Acquisition does not occur, the securities will be returned by the Escrow Agent to the Company and the Purchase Price and all interest earned thereon will be returned to WP VIII by the Escrow Agent and the securities will not be acquired. STANDSTILL AGREEMENT. Under the terms of the Agreement, the Investors agreed that for a period of five years after the Funding Date (subject to certain exceptions), neither the Investors nor their affiliates would acquire beneficial ownership in excess of 30% of the Company's voting stock or Common Stock (assuming conversion into Common Stock of the Preferred Stock) nor engage or participate in any specified transactions with respect to the Company, including any merger or other business combination, acquisition of assets or other similar transactions, subject to permitted exceptions. The terms of the Purchase Agreement had limited the Investors and their affiliates beneficial ownership to an amount not in excess of 35% of the Company's voting stock or Common Stock (assuming conversion into Common Stock of the Preferred Stock). In that connection, pursuant to the terms of the Purchase Agreement and the Agreement, a charter amendment will be proposed providing that the restrictions on transactions with related parties in the Company's Certificate of Incorporation will not apply to the Investors 6 and their affiliates, except that during the first five years after the Funding Date if the standstill described above applies, the Investors will be subject to the related party restrictions if, together with their affiliates and associates, they beneficially owns more than 30% of the voting stock of the Company. Prior to the entry into the Agreement, the terms of the proposed charter amendment would have limited the Investors and their affiliates beneficial ownership to an amount not in excess of 35% of the voting stock of the Company. The foregoing summary is qualified in its entirety by reference to (1) the Purchase Agreement, a copy of which is set forth as Exhibit 2, (2) the Series B Certificate of Designations, a copy of which is set forth as Exhibit 3, (3) the Series C Certificate of Designations, a copy of which is set forth as Exhibit 4, (4) the Agreement, a copy of which is set forth as Exhibit 5 and (5) the Escrow Agreement, a copy of which is set forth as Exhibit 6 and each exhibit is incorporated herein by reference. Depending on prevailing market, economic and other conditions and subject to the terms of the Purchase Agreement discussed above, the Reporting Entities may from time to time dispose of or acquire additional securities of the Company, engage in discussions with the Company concerning further acquisitions of securities of the Company or otherwise invest in the Company. The Reporting Entities intend to review their investment in the Company on a continuing basis and, depending upon the price and availability of the Company's securities, subsequent developments concerning the Company, the Company's business and prospects, other investment and business opportunities available to the Reporting Entities, general stock market and economic conditions, tax considerations and other factors considered relevant, may decide at any time to increase or decrease the size of their investment in the Company or to sell any or all of the securities of the Company that they hold. Except as set forth herein, none of the Reporting Entities nor, to the best of their knowledge, any person listed in Schedule I, has any plans or proposals which relate to or would result in: (a) the acquisition by any person of additional securities of the Company, or the disposition of securities of the Company; (b) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Company or any of its subsidiaries; (c) a sale or transfer of a material amount of assets of the Company or any of its subsidiaries; (d) any change in the present Board of Directors or management of the Company, including any plans or proposals to change the number or term of directors or to fill any existing vacancies on the board; (e) any material change in the present capitalization or dividend policy of the Company; (f) any other material change in the Company's business or corporate structure; (g) any changes in the Company's charter, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Company by any person; (h) causing a class of securities of the Company to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (i) a class of equity securities of the Company becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act; or (j) any action similar to any of those enumerated above. 7 ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. Item 5 is hereby amended and restated in its entirety as follows: (a) Due to their respective relationships with each other, as of October 8, 2004, the Reporting Entities may be deemed to beneficially own, in the aggregate, 612,245 shares of Common Stock of the Company as a result of the Purchase Agreement, the Escrow Agreement and the Agreement (subject to the terms of those agreements). As of October 8, 2004, as a result of the Purchase Agreement, the Escrow Agreement and the Agreement, the Reporting Entities may also be deemed to beneficially own additional shares of Common Stock by virtue of the Investors' beneficial ownership, subject to the terms and conditions contained in the Purchase Agreement, Escrow Agreement and the Agreement, of the Series B Preferred Stock. Assuming the full conversion of the Series B Preferred Stock into Common Stock as of October 8, 2004, pursuant to the terms and conditions of the Purchase Agreement and the Agreement described herein, the Investors may be deemed to beneficially own 4,056,120 shares of Common Stock, representing approximately 12.9% of the outstanding shares of Common Stock, based on a total of 31,504,834 shares of Common Stock outstanding, which is comprised of: (i) 27,447,959 shares of Common Stock outstanding as of September 19, 2004, as represented by the Company in the Purchase Agreement, (ii) the 612,245 shares of Common Stock to be acquired by the Investor into common stock subject to the terms and conditions of the Purchase Agreement and the Agreement described herein and (iii) the 3,443,875 shares of Common Stock issuable upon the conversion of the 110,214 shares of Series B Preferred Stock to be acquired by the Investor into common stock subject to the terms and conditions of the Purchase Agreement and the Agreement described herein, and approximately 14.8% of the outstanding shares of Common Stock, before giving effect to the new issuance of shares of Common Stock underlying the Series B Preferred Stock. As described in Item 4, supra, the Reporting Entities do not expect to have the right to acquire beneficial ownership of additional shares of Common Stock within sixty days by virtue of the Investor's beneficial ownership of the Series C Preferred Stock. The Group Members are making this single, joint filing because they may be deemed to constitute a "group" within the meaning of Section 13(d)(3) of the Exchange Act. Each Group Member disclaims beneficial ownership of the Securities as a result of the material conditions contained in the Purchase Agreement and the Agreement. (b) To the extent the Investors may be deemed to beneficially own the 4,056,120 shares of Common Stock discussed herein, each of WP and WP LLC may share with the Investors the power to vote or to direct the vote and to dispose or to direct the disposition of those shares. 8 (c) Except for the transactions contemplated by the Purchase Agreement and the Agreement, during the last sixty days there were no transactions effected by the Reporting Entities or by any of the persons set forth on Schedule I hereto. (d) Except as set forth in Item 4 and in this Item 5, SUPRA, no person other than each respective record owner referred to herein of the Securities is known to have the right to receive or the power to direct the receipt of dividends from, or the proceeds from the sale of, such Securities. (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Item 6 is hereby amended by adding the following to the end of such Item: The Agreement and the Escrow Agreement were entered into on October 8, 2004 and are described herein in Item 4,SUPRA. Except as referred to above, there are no contracts, arrangements, understandings or relationships among the persons named in Item 2 or between such persons and any other person with respect to any securities of the Company. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. 1. Joint Filing Agreement, dated as of September 29, 2004, by and among Warburg Pincus Private Equity VIII, L.P.; Warburg, Pincus & Co.; and Warburg Pincus LLC. (filed previously) 2. Purchase Agreement, dated as of September 19, 2004, by and between Jarden Corporation and Warburg Pincus Private Equity VIII, L.P. (incorporated in this Schedule 13D by reference to Exhibit 10.2 of the Current Report on Form 8-K filed by Jarden Corporation on September 23, 2004) 3. Form of Certificate of Designations, Preferences and Rights of Series B Convertible Participating Preferred Stock of Jarden Corporation. (incorporated in this Schedule 13D by reference to Exhibit 10.3 of the Current Report on Form 8-K filed by Jarden Corporation on September 23, 2004) 4. Form of Certificate of Designations, Preferences and Rights of Series C Mandatory Convertible Participating Preferred Stock of Jarden Corporation. (incorporated in this Schedule 13D by reference to Exhibit 9 10.4 of the Current Report on Form 8-K filed by Jarden Corporation on September 23, 2004) 5. Assignment and Joinder Agreement, dated October 8, 2004, by and among Jarden Corporation, Catterton Partners V, L.P., Catterton Partners V Offshore, L.P., Catterton Coinvest I, L.L.C., Warburg Pincus Netherlands Private Equity VIII C.V. I, Warburg Pincus Netherlands Private Equity VIII C.V. II, Warburg Pincus Germany Private Equity VIII KG and Warburg Pincus Private Equity VIII, L.P. 6. Escrow Agreement, dated as of October 8, 2004, by and among Jarden Corporation, Warburg Pincus Private Equity VIII, L.P. and National City Bank, a national banking association, as escrow agent. 10 SIGNATURES After reasonable inquiry and to the best of our knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct. Dated: October 13, 2004 WARBURG PINCUS PRIVATE EQUITY VIII, L.P. By: Warburg, Pincus & Co., General Partner By: /s/ Scott A. Arenare --------------------------------------- Name: Scott A. Arenare Title: Partner WARBURG, PINCUS & Co. By: /s/ Scott A. Arenare --------------------------------------- Name: Scott A. Arenare Title: Partner WARBURG PINCUS LLC By: /s/ Scott A. Arenare --------------------------------------- Name: Scott A. Arenare Title: Managing Director 11 INDEX OF EXHIBITS 1. Joint Filing Agreement, dated as of September 29, 2004, by and among Warburg Pincus Private Equity VIII, L.P.; Warburg, Pincus & Co.; and Warburg Pincus LLC (filed previously) 2. Purchase Agreement, dated as of September 19, 2004, by and between Jarden Corporation and Warburg Pincus Private Equity VIII, L.P. (incorporated in this Schedule 13D by reference to Exhibit 10.2 of the Current Report on Form 8-K filed by Jarden Corporation on September 23, 2004) 3. Form of Certificate of Designations, Preferences and Rights of Series B Convertible Participating Preferred Stock of Jarden Corporation. (incorporated in this Schedule 13D by reference to Exhibit 10.3 of the Current Report on Form 8-K filed by Jarden Corporation on September 23, 2004) 4. Form of Certificate of Designations, Preferences and Rights of Series C Mandatory Convertible Participating Preferred Stock of Jarden Corporation. (incorporated in this Schedule 13D by reference to Exhibit 10.4 of the Current Report on Form 8-K filed by Jarden Corporation on September 23, 2004) 5. Assignment and Joinder Agreement, dated October 8, 2004, by and among Jarden Corporation, Catterton Partners V, L.P., Catterton Partners V Offshore, L.P., Catterton Coinvest I, L.L.C., Warburg Pincus Netherlands Private Equity VIII C.V. I, Warburg Pincus Netherlands Private Equity VIII C.V. II, Warburg Pincus Germany Private Equity VIII KG and Warburg Pincus Private Equity VIII, L.P. 6. Escrow Agreement, dated as of October 8, 2004, by and among Jarden Corporation, Warburg Pincus Private Equity VIII, L.P. and National City Bank, a national banking association, as escrow agent. 12 EX-99 2 oct11agr.txt EXHIBIT 5: ASSIGNMENT AND JOINDER AGREEMENT EXHIBIT 5 EXECUTION COPY ASSIGNMENT AND JOINDER AGREEMENT This ASSIGNMENT AND JOINDER AGREEMENT, dated as of October 8, 2004 (the "AGREEMENT"), by and among Jarden Corporation, a Delaware corporation (the "COMPANY"), Catterton Partners V, L.P. ("CATTERTON PARTNERs"), Catterton Partners V Offshore, L.P. ("CATTERTON OFFSHORE"), Catterton Coinvest I , L.L.C. ("CATTERTON COINVEST", and together with Catterton Partners and Catterton Offshore, "CATTERTON"), Warburg Pincus Netherlands Private Equity VIII C.V. I ("WPNPE VIII I"), Warburg Pincus Netherlands Private Equity VIII C.V. II ("WPNPE VIII II"), Warburg Pincus Germany Private Equity VIII KG ("WPGPE VIII") and Warburg Pincus Private Equity VIII, L.P. ("WP VIII", and together with WPNPE VIII I, WPNPE VIII II and WPGPE VIII, "WARBURG"). Capitalized terms used but not defined herein shall have the meanings given to them in the Purchase Agreement (as defined below). RECITALS WHEREAS, the Company and WP VIII are parties to that certain Purchase Agreement, dated as of September 19, 2004 (the "PURCHASE AGREEMENT"), whereby the Company agreed to sell to WP VIII, and WP VIII agreed to purchase from the Company, the Securities, consisting of (i) 128,571 Series B Preferred Shares at a price of $1,000 per share, (ii) 200,000 Series C Preferred Shares at a price of $1,000 per share and (iii) 714,286 Common Shares at a price of $30.00 per share; WHEREAS, the Company and Warburg desire that Warburg assign to Catterton certain rights, and that Catterton assume Warburg's related obligations, under the Purchase Agreement in connection with the purchase of the shares of Preferred Stock and Common Stock as set forth in APPENDIX A attached hereto (the "ASSIGNMENT"); WHEREAS, the Company desires to give its consent to, and to waive the restrictions on, assignment in the Purchase Agreement in order to permit the Assignment contemplated in this Agreement (the "CONSENT AND WAIVER"); WHEREAS, in order to induce Catterton to enter into this Agreement, the Company has agreed to grant to Catterton certain rights set forth herein with respect to Catterton's purchase of the Assigned Shares (as defined below) and certain other matters; and WHEREAS, Catterton desires to accept the Assignment, upon the terms and subject to the conditions set forth in this Agreement. AGREEMENT NOW THEREFORE, in consideration of the premises and the mutual agreements set forth herein and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the parties hereby agree as follows: 1. ASSIGNMENT, ASSUMPTION AND JOINDER. (a) Warburg hereby assigns to Catterton its right under the Purchase Agreement to purchase from the Company the number of shares of Series B Preferred Stock, Series C Preferred Stock and Common Stock of the Company set forth in APPENDIX A attached hereto (the "ASSIGNED SHARES") at the same price per share to be paid by Warburg for the shares of Series B Preferred Stock, Series C Preferred Stock and Common Stock, respectively, pursuant to the Purchase Agreement. Warburg hereby represents and warrants to Catterton that the execution, delivery and performance of this Agreement by Warburg and the consummation of the transactions contemplated hereby have been duly authorized and that this Agreement constitutes the valid and binding obligations of Warburg enforceable against Warburg in accordance with its respective terms. Catterton hereby agrees to assume, be responsible for and perform the obligations relating to the Assigned Shares as if it were a party to the Purchase Agreement. The Company hereby releases Warburg and its Affiliates, representatives and managing entities from any liability or obligation relating to, or arising out of, such obligations. (b) WPGPE, WPNPE VIII I and WPNPE VIII II (each a "WARBURG JOINING INVESTOR") hereby acknowledge and agree, severally, but not jointly and severally, that: (i) each Warburg Joining Investor shall be deemed an "Investor" for all purposes under the Purchase Agreement, and as such shall be severally, but not jointly and severally, bound to the obligations thereunder as if it were a party thereto and as such shall be responsible for its pro rata share of all obligations of the Investor thereunder; (ii) each Warburg Joining Investor shall be entitled to acquire its pro rata share of the shares of Common Stock, Series B Preferred Stock and Series C Preferred Stock purchased by Warburg as set forth in Appendix B attached hereto; (iii) such Warburg Joining Investor shall execute and deliver all documents and instruments necessary to effect such purchase; and (iv) any and all shares of Common Stock, Series B Preferred Stock or Series C Preferred Stock to be purchased by such Warburg Joining Investor shall be deemed shares of "Common Stock," "Series B Preferred Stock" or "Series C Preferred Stock," as the case may be, for all purposes under the Purchase Agreement, in each case as if such Warburg Joining Investor had been an Investor as of the date of the Purchase Agreement. The "pro rata" share of each Warburg Joining Investor and of WP VIII is set forth on Appendix B of this Agreement. 2. CONSENT AND WAIVER. The Company hereby grants its consent to, and waives the restrictions on, assignment in the Purchase Agreement in order to permit the Assignment contemplated in this Agreement and pursuant to the Purchase Agreement. 3. PURCHASE. Catterton hereby agrees with Warburg that, at the Closing, Catterton will purchase the Assigned Shares for an aggregate purchase price of $49,999,290 (the "CATTERTON PURCHASE PRICE") from the Company. Concurrent with the execution of this Agreement, subject to the conditions to the Funding in the Purchase Agreement being satisfied or waived (as determined in the sole discretion of Warburg, acting reasonably), Catterton will pay to Warburg the Catterton Purchase Price, which shall be held in accordance with the terms of the Escrow Agreement. Catterton will not be under any obligation to purchase the Assigned Shares at the Closing in accordance with the first sentence of this Section 3 unless and until (i) the conditions in the Purchase Agreement to the Closing are satisfied or waived (it being understood 2 that Warburg in its sole discretion acting reasonably shall determine whether such conditions are satisfied); PROVIDED that Warburg shall not (A) waive any of such conditions or amend or modify the Purchase Agreement in a manner that affects the rights and privileges of Catterton in a manner that is disproportionately adverse to the adverse effect such amendment or waiver has on Warburg unless Catterton has consented thereto in writing or (B) assign any of its rights under the Purchase Agreement (other than to an Affiliate Fund, provided that such Affiliate Fund agrees to perform the obligations of Warburg hereunder) unless Catterton has consented in writing (such consent not to be unreasonably withheld or delayed) and (ii) Warburg shall have made the deposits into the Escrow Account as required by the Escrow Agreement and, subject to the AHI Acquisition, Catterton and Warburg shall each have the right to receive the number of Securities set forth in APPENDIX A attached hereto (subject to adjustment as described herein and in the Purchase Agreement). 4. REPRESENTATIONS AND WARRANTIES. (a) REPRESENTATIONS AND WARRANTIES BY CATTERTON TO WARBURG. Catterton hereby incorporates by reference, and makes to Warburg and the Company, the representations and warranties set forth in, Sections 2.3(a) through 2.3(f) of the Purchase Agreement (other than the last sentence of Section 2.3(a)), except that all references to "the Agreement" shall mean this Agreement; all references to the "Investor" shall mean Catterton; the reference to "limited partnership" in the first sentence of Section 2.3(a) shall be changed to "an entity"; the words "or similar body" shall be added after the word "partnership" in the second sentence of Section 2.3(b) and the words "by any of the partners" shall be deleted and replaced with the words "with respect to such Investor" in the same sentence; the words "similar applicable document or" shall be added at the end of sub-clause (A) in the second paragraph of Section 2.3(b); all references to the "Securities" in Section 2.2(d) shall mean the "Assigned Shares"; the reference to "compliance with HSR" shall be deleted and each reference to "the Transaction Documents", "and thereunder" and "and thereby" shall mean this Agreement. (b) REPRESENTATIONS AND WARRANTIES BY THE COMPANY. The Company hereby incorporates by reference, and makes to Catterton, the representations and warranties set forth in Section 2.2 of the Purchase Agreement; provided that each of the parties to this Agreement acknowledges and agrees that the reference to "the Closing" in Section 2.2(p)(6) of the Purchase Agreement shall be replaced by "the AHI Acquisition". In addition, the Company hereby represents and warrants to Catterton and Warburg that no Bank Consent is required on the part of the Company in connection with the transactions contemplated by this Agreement. The Company hereby acknowledges and agrees that "Share Base" (as used in the Purchase Agreement) shall be deemed to refer to the Securities purchased by Warburg in the amounts set forth in APPENDIX A attached hereto under the column entitled "No. of Securities to be Purchased by Warburg" rather than in the amounts set forth in the Purchase Agreement. 5. COVENANTS. (a) Catterton agrees with Warburg that it will take all of the actions to which Warburg has bound itself in Section 3.1(a) and 3.1(b). 3 (b) The Company agrees with Catterton that Catterton shall be a third party beneficiary of the covenants set forth in Section 3.1(c), the first sentence of Section 3.1(d) and Section 3.5(a) as if Catterton was an "Investor", as that term is defined in the Purchase Agreement, and shall have the right to enforce such covenants against the Company as if it were a party to the Purchase Agreement. (c) From the date hereof until the date when the Assigned Shares owned by Catterton represent less than 25% of the Catterton Share Base (a "CATTERTON QUALIFYING OWNERSHIP INTEREST"), and for so long as the rights under Section 3.3 of the Purchase Agreement shall be in effect with respect to the Investor, the Company will ensure that upon reasonable notice, the Company and its subsidiaries will afford to Catterton and its representatives (including, without limitation, officers and employees of Catterton, and counsel, accountants and other professionals retained by Catterton) such access during normal business hours to its books, records (including, without limitation, tax returns and appropriate work papers of independent auditors under normal professional courtesy), properties and personnel and to such other information as the Catterton Investors may reasonably request, including access to any such materials pertaining to AHI or the AHI Acquisition. All requests for access and information shall be coordinated through senior corporate officers of the Company. The "CATTERTON SHARE BASE" equals the number of Series B Preferred Shares that would have been purchased by Catterton at the Closing if the mandatory conversion of the shares of Series C Preferred Stock would have occurred prior to the Closing (or such number of Common Shares represented by such Series B Preferred Shares on an as converted basis) without regard to any limitation on such conversion. (d) Catterton hereby agrees that it shall comply with the obligations of an "Investor" in Section 3.3(b) of the Purchase Agreement. 6. STANDSTILL AGREEMENT. (a) Catterton agrees that until the fifth anniversary of the Closing Date, without the prior approval of the Company, Catterton will not, directly or indirectly, through its Affiliates or associates or any other persons, or in concert with any person, (i) purchase or otherwise acquire beneficial ownership (as defined in Rule 13d-3 and Rule 13d-5 under the Exchange Act) that would result in Catterton and its Affiliates having beneficial ownership of more than 5% of the outstanding shares of voting stock or Common Stock of the Company, assuming the conversion into Common Stock of the Preferred Stock of the Company (it being agreed that the foregoing shall not restrict Catterton from receiving shares as a result of a dividend or distribution in respect of previously owned shares), (ii) enter into or publicly propose to enter into, directly or indirectly, any merger or other business combination, acquisition of assets or similar transaction or change or control involving the Company or any Company Subsidiary, (iii) make, or in any way participate, directly or indirectly, in any "solicitation" of "proxies" (as such terms are used in the proxy rules of the Commission) to vote, or seek to advise or influence any person with respect to the voting of, any securities of the Company or any Company Subsidiary, (iv) call, or seek to call, a meeting of the Company's stockholders or initiate any stockholder proposal for action by stockholders of the Company, (v) bring any action or otherwise act to contest the validity of this Section 6(a) or seek a release of the restrictions 4 contained herein, (vi) form, join or in any way participate in a "group" (within the meaning of Sections 13(d)(3) of the Exchange Act) with respect to any securities of the Company or any Company Subsidiary, (vii) seek the removal of any directors from the Board of Directors or a change in the size or composition of the Board of Directors (including, without limitation, voting for any directors not nominated by the Board of Directors), (viii) propose or enter into any discussions, negotiations, arrangements, understandings or agreements (whether written or oral) with any other person regarding any possible purchase or sale of any securities or assets of the Company or any Company Subsidiary (other than Securities owned by the Investor or any of its Affiliates), (ix) disclose any intention, plan or arrangement inconsistent with the foregoing, (x) take, or solicit, propose to or agree with any other person to take, any similar actions designed to influence the management or control of the Company, (xi) advise, assist or encourage any other persons in connection with any of the foregoing or (xii) make, or take any action that would reasonably be expected to cause, the Company to make a public announcement regarding any intention of the Investor to take an action that would be prohibited by the foregoing. Notwithstanding the foregoing, the parties hereby agree that nothing in this Section 6(a) shall apply to any portfolio company in which Catterton has less than 50% voting control, provided that Catterton does not provide to such entity any non-public information concerning the Company or any Company Subsidiary and such portfolio company is not acting at the request or direction of Catterton. In the event that the Company shall fail to comply with any of its dividend or other payment obligations under the Certificate of Designations relating to the Series B Preferred Stock or the Certificate of Designations relating to the Series C Preferred Stock and the Company fails to comply with such obligation within three business days after Catterton shall have notified the Company in writing of such non-compliance, this Section 6(a) shall forthwith become wholly void and of no further force and effect, and the rest of this Agreement shall remain in full force and effect. (b) The Company and Warburg hereby agree that the reference to "35%" in clause (i) of Section 4.1(a) of the Purchase Agreement and in Exhibit 5 thereof shall be amended to "30%". For the avoidance of doubt, the term "Investor" as used in Section 4.1(a) of the Purchase Agreement shall refer to Warburg. 7. REGISTRATION RIGHTS. The parties hereto hereby agree that Catterton shall be deemed to be an "Investor" for purposes of Section 4.2 of the Purchase Agreement (including Exhibit 3 attached thereto) and shall be entitled to all rights and subject to all obligations set forth therein as if it were a party to the Purchase Agreement. 8. PREEMPTIVE RIGHTS. For so long as Catterton owns Securities representing the Catterton Qualifying Ownership Interest , and for so long as the rights under Section 4.3 of the Purchase Agreement shall be in effect with respect to the Investor, the Company and Catterton hereby agree that Catterton shall be deemed to be an "Investor" for purposes of Section 4.3 of the Purchase Agreement and shall be entitled to all rights set forth therein as if it were a party to the Purchase Agreement. 9. GOVERNANCE MATTERS. (a) The Company further agrees that, subject to Section 9(b) below, when the 5 Company seeks a new independent director to serve as the ninth director on the Board of the Company, Catterton shall have the right to approve the independent director of the Company to be proposed by the Nominating Committee (such approval not to be unreasonably withheld). (b) If Catterton at any time beneficially owns less than 75% of the Assigned Shares, then Catterton's approval rights pursuant to Section 9(a) above shall terminate. 10. LEGEND. (a) Catterton agrees that all certificates or other instruments representing the Assigned Shares will bear a legend substantially identical to the legend set forth in Section 4.5(a) of the Purchase Agreement. (b) Upon request by Catterton to effect a sale of any Assigned Shares, upon receipt by the Company of an opinion of counsel reasonably satisfactory to the Company to the effect that Catterton or its Transferee is not an "affiliate" and has not been an "affiliate" (within the meaning of Rule 144 promulgated under the Securities Act) for the preceding three months, the Company shall promptly cause any legend to be removed from any certificate for any Assigned Shares so to be Transferred. Catterton acknowledges that the Assigned Shares have not been registered under the Securities Act or under any state securities laws and agrees severally, but not jointly and severally, that it will not sell or otherwise dispose of any of the Assigned Shares, except in compliance with the registration requirements or exemption provisions of the Securities Act and any other applicable securities laws. 11. RESERVATION FOR ISSUANCE. The Company will reserve that number of (x) Common Shares sufficient for issuance upon conversion of Preferred Shares owned at any time by Catterton and (y) Series B Preferred Shares sufficient for issuance upon conversion of Series C Preferred Shares owned at any time by Catterton without regard to any limitation on such conversion. 12. CERTAIN TRANSACTIONS. The Company will not merge or consolidate into, or sell, transfer or lease all or substantially all of its assets to, any other party unless the successor, transferee or lessee party, as the case may be (if not the Company), expressly assumes the due and punctual performance and observance of each and every covenant and condition of this Agreement to be performed and observed by the Company. 13. RESTRICTIONS ON TRANSFERS. Catterton shall not Transfer any Preferred Stock to any Transferee if such Transferee (i) is a Company Competitor or (ii) has not executed a joinder agreement pursuant to which it has agreed to be bound by this Agreement to the same extent as the respective Transferor as if it were a party hereto; PROVIDED that the foregoing transfer restrictions shall not apply to Transfers (1) pursuant to a merger, tender offer or other business combination, acquisition of assets or similar transaction or change or control involving the Company or any Company Subsidiary, provided that such transaction described in this clause (1) has been approved by the Company's Board of Directors or (2) a bona fide pledge to a financial institution which does not permit the financial institution to foreclose on such to shares of Preferred Stock without conversion (each, a "PERMITTED TRANSFER"). For purposes of this Section 6 12, (i) "TRANSFER" shall mean any sale, transfer, assignment, pledge or other disposition or encumbrance (and "TRANSFEROR" and "TRANSFEREE" shall have correlative meanings) and (ii) "COMPANY COMPETITOR" shall mean any person that derives more than 10% of such persons' total annual revenues for its most recently completed fiscal year from a business that competes in a material way with a business that represents more than 5% of the consolidated revenues of the Company and its subsidiaries for its most recently completed fiscal year. Notwithstanding the foregoing, the parties acknowledge and agree that Catterton may assign a portion of its rights and obligations under this Agreement to one or more of its Affiliate funds, provided that, as a condition to such transfer, any such Affiliate must execute and deliver to the Company a joinder agreement pursuant to which such Affiliate shall agree to be bound (severally, but not jointly and severally) by this Agreement as if it were a party hereto and in such case such Affiliate shall become responsible for its pro rata share of all obligations of Catterton hereunder, and the transferor Investor shall be relieved of such acquired obligations. The term "Catterton" will be deemed to include such Affiliate funds that acquire Securities pursuant to this Agreement. 14. PROXY. At the Closing, each of Catterton V, Catterton Offshore and Catterton Coinvest shall execute and deliver to the Company a proxy, substantially in the form of Exhibit 6 to the Purchase Agreement, to vote all Assigned Shares at the Meeting or at any adjournment or postponement thereof or at any subsequent meeting at which the stockholders shall vote to approve the Shareholder Approvals, in favor of the matters subject to the Shareholder Approvals and increasing the Company's authorized common stock to a number not more than 100,000,000 shares. Catterton acknowledges that the Company intends to propose a 2005 stock incentive plan (the terms of which have not been developed) for shareholder approval at the Meeting. Catterton shall not transfer the Assigned Shares without the Transferee executing and delivering a similar proxy to the Company. 15. WITHHOLDING. The Company shall be entitled to deduct and withhold from amounts payable to Catterton in respect of the Assigned Shares such amounts as it is required to deduct and withhold under applicable law. To the extent that amounts are so withheld by the Company, such withheld amounts shall be treated for all purposes as having been paid to Catterton in respect of which such deduction and withholding was made by the Company. Prior to Catterton receiving any Assigned Shares, Catterton shall deliver to the Company a duly executed IRS Form W-9 or the appropriate IRS Form W-8, as applicable, and such other IRS forms as may reasonably requested by the Company from time to time. Catterton shall update all such IRS Forms, as appropriate, from time to time. 16. TERMINATION. In the event that the Purchase Agreement is terminated in accordance with Section 5.1 thereof or the Cash Proceeds are otherwise distributed to Warburg in accordance with the terms of the Escrow Agreement for any reason, Warburg shall promptly after receipt of funds pursuant to the terms of the Escrow Agreement return the Catterton Purchase Price (or such pro rata portion of the Catterton Purchase Price payable to Catterton out of the funds received pursuant to the Escrow Agreement based on the equity committed to the purchase of the Securities by Warburg and Catterton) to Catterton, along with its pro rata portion of any interest earned on the Cash Proceeds. If the Purchase Agreement is terminated, this Agreement (other than Section 2 (with respect to actions taken prior to such termination), Section 5(d) and Section 17) shall automatically terminate and be of no further force and effect without further action by the parties hereto. 7 17. MISCELLANEOUS. (a) SURVIVAL OF REPRESENTATIONS, WARRANTIES, AGREEMENTS, ETC. Each of the representations and warranties set forth in this Agreement or incorporated herein by reference to the Purchase Agreement shall survive the Closing but only for a period of 18 months following the Closing Date and thereafter shall expire and have no further force and effect; PROVIDED that the representations and warranties in Section 2.2(c) and (d) of the Purchase Agreement, shall survive indefinitely. Except as otherwise provided herein, all covenants and agreements contained herein shall survive for the duration of any statutes of limitations applicable thereto or until, by their respective terms, they are no longer operative. (b) AMENDMENT. No amendment or waiver of any provision of this Agreement will be effective with respect to any party unless made in writing and signed by a duly authorized representative of such party. Warburg hereby agrees that, after the Closing, it shall not, without the prior written consent of Catterton, agree to any amendment or waiver of the Purchase Agreement if such amendment or waiver affects the rights and privileges of Catterton in a manner that is disproportionately adverse to the adverse affect such amendment or waiver has on Warburg. (c) COUNTERPARTS AND FACSIMILE. For the convenience of the parties hereto, this Agreement may be executed in any number of separate counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts will together constitute the same agreement. Executed signature pages to this Agreement may be delivered by facsimile and such facsimiles will be deemed as sufficient as if actual signature pages had been delivered. (d) GOVERNING LAW; JURISDICTION. This Agreement will be governed by and construed in accordance with the laws of the State of New York applicable to contracts made and to be performed entirely within such State. The parties hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the state and federal courts located in the State of New York for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby. (e) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. (f) NOTICES. Any notice, request, instruction or other document to be given hereunder by any party to the other will be in writing and will be deemed to have been duly given (a) on the date of delivery if delivered personally or by telecopy or facsimile, upon confirmation of receipt, (b) on the first business day following the date of dispatch if delivered by a recognized next-day courier service, or (c) on the third business day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid. All notices hereunder shall be delivered as set forth below, or pursuant to such other instructions as may be designated in writing by the party to receive such notice. All notices required to be delivered to either Warburg or the Company under this Agreement shall be delivered to the 8 persons designated in 6.7 of the Purchase Agreement. All notices required to be delivered to Catterton, or to an "Investor" under the Purchase Agreement, shall be sent to: Catterton Partners 599 West Putnam Avenue Greenwich, CT 06830 Telecopy: (203) 629-4903 Attn: Marc Cummins with a copy to: Latham & Watkins LLP 555 Eleventh Street, N.W. Washington, D.C. 20004-1304 Telecopy: (202) 637-2201 Attn: Eric A. Stern, Esq. (g) ENTIRE AGREEMENT, ASSIGNMENT, ETC. This Agreement (including any exhibits and appendices) and the Purchase Agreement (including the Exhibits and Disclosure Schedules thereto) constitute the entire agreement, and supersede all other prior agreements, understandings, representations and warranties, both written and oral, between the parties and their respective affiliates, with respect to the subject matter hereof. Subject to Section 12 hereto, this Agreement will not be assignable by operation of law or otherwise (any attempted assignment in contravention hereof being null and void) without the prior written consent of the other parties hereto. Notwithstanding any other provision contained in this Agreement, the obligations of Catterton and Warburg, in their capacities as "Investors" under the Purchase Agreement and this Agreement, are the obligations of such Investors severally, but not jointly and severally. (h) CAPTIONS. The Article, Section and paragraph captions herein are for convenience of reference only, do not constitute part of this Agreement and will not be deemed to limit or otherwise affect any of the provisions hereof. (i) SEVERABILITY. If any provision of this Agreement or the application thereof to any person (including, without limitation, the officers and directors of party hereto) or circumstance is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions hereof, or the application of such provision to persons or circumstances other than those as to which it has been held invalid or unenforceable, will remain in full force and effect and shall in no way be affected, impaired or invalidated thereby, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination, the parties shall negotiate in good faith in an effort to agree upon a suitable and equitable substitute provision to effect the original intent of the parties. (j) NO THIRD PARTY BENEFICIARIES. Nothing contained in this Agreement, expressed or implied, is intended to confer upon any person or entity other than the parties hereto 9 or permitted Transferees of Catterton or Warburg, any benefit right or remedies, except that the provisions of Section 7 shall inure to the benefit of the persons referred to in that Section. (k) SPECIFIC PERFORMANCE. The transactions contemplated by this Agreement are unique. Accordingly, the parties hereto acknowledge and agree that, in addition to all other remedies to which it may be entitled, each of the parties hereto is entitled to a decree of specific performance, provided that such party hereto is not in material default hereunder. The parties hereto agree that, if for any reason a party shall have failed to perform its obligations under this Agreement, then the party seeking to enforce this Agreement against such nonperforming party shall be entitled to specific performance and injunctive and other equitable relief, and the parties further agree to waive any requirement for the securing or posting of any bond in connection with the obtaining of any such injunctive or other equitable relief. This provision is without prejudice to any other rights that any party may have against another party for any failure to perform its obligations under this Agreement including the right to seek damages for a material breach of any provision of this Agreement. (l) CERTAIN ADJUSTMENTS. The parties recognize that the terms of the Assigned Shares, the Purchase Agreement and this Agreement provide for a variety of antidilution, preemptive and other similar rights and adjustments. It is the parties' intention that these rights and adjustments shall be given effect in a manner that produces fair and equitable results in the circumstances. In the event the Company shall at any time after the date of this Agreement (A) declare a dividend on the Common Shares payable in Common Shares, (B) subdivide the outstanding Common Shares, (C) combine the outstanding Common Shares into a smaller number of Common Shares or (D) issue any shares of its capital stock in a reclassification of the Common Shares (including any such reclassification in connection with a share exchange, consolidation or merger in which the Company is the continuing or surviving corporation)(whether or not permitted by this Agreement), except as otherwise set forth herein, the prices, price ranges and trigger points in effect at the time of the record date for such dividend or of the effective date of such subdivision, combination or reclassification, and the number and kind of shares of capital stock issuable on such date, shall be proportionately adjusted so that Catterton after such time shall be entitled to purchase the aggregate number and kind of shares of capital stock which, had the respective transaction contemplated by this Agreement taken place immediately prior to such date, Catterton would have entitled to acquire upon consummation of such transaction or been entitled to receive by virtue of such dividend, subdivision, combination or reclassification. (m) DAMAGES FOR BREACHES. Each of Warburg and Catterton agrees that, for so long as each such party is not in material violation of this Agreement or the Purchase Agreement, such party shall pay over to the other party its pro rata share of any payments, net of any expenses incurred in obtaining such payment, in respect of breaches or defaults under the Purchase Agreement made to or for the benefit of such party under this Agreement or the Purchase Agreement, as the case may be (other than any expense reimbursement payment used to pay actual out-of-pocket expenses incurred by or on behalf of such party in connection with the transactions contemplated by this Agreement or the Purchase Agreement); PROVIDED, that Warburg and Catterton shall be obligated to make such payments only in respect of damages or other remedies actually incurred by the other party relating to the same right or privileges granted to both parties under the Purchase Agreement or this Agreement; and PROVIDED FURTHER 10 that, Warburg shall only be required to make payments to Catterton pursuant to this Section 17(m) only if Catterton would have had the same right to sue, or other entitlement to remedies, as Warburg assuming Catterton were an Investor under, and party to, the Purchase Agreement. Such pro rata amount shall be calculated based on the equity committed to the purchase of the Securities by Warburg and Catterton. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] 11 IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first herein above written. JARDEN CORPORATION By: /s/ Desiree DeStefano --------------------------------- Name: Desiree DeStefano Title: Senior Vice President 12 CATTERTON PARTNERS V, L.P. CATTERTON PARTNERS V OFFSHORE, L.P. By: Catterton Managing Partner V, L.L.C., General Partner By: CP5 Principals, L.L.C., Managing Member By: /s/ Marc Cumming --------------------------------- Name: Marc Cumming Title: Managing Partner CATTERTON COINVEST I, L.L.C. By: Catterton Partners V Management Company, L.L.C., Managing Member By: /s/ Marc Cumming --------------------------------- Name: Marc Cumming Title: Managing Partner 13 WARBURG PINCUS PRIVATE EQUITY VIII, L.P. By: WARBURG, PINCUS & CO., its General Partner By: /s/ Charles R. Kaye -------------------------------- Name: Charles R. Kaye Title: General Managing Partner WARBURG PINCUS NETHERLANDS PRIVATE EQUITY VIII C.V. I, By: WARBURG, PINCUS & CO., its General Partner By: /s/ Charles R. Kaye -------------------------------- Name: Charles R. Kaye Title: General Managing Partner WARBURG PINCUS NETHERLANDS PRIVATE EQUITY VIII C.V. II By: WARBURG, PINCUS & CO., its General Partner By: /s/ Charles R. Kaye -------------------------------- Name: Charles R. Kaye Title: General Managing Partner WARBURG PINCUS GERMANY PRIVATE EQUITY VIII KG By: WARBURG, PINCUS & CO., its General Partner By: /s/ Charles R. Kaye ------------------------------- Name: Charles R. Kaye Title: General Managing Partner 14 APPENDIX A ASSIGNED SHARES TYPE OF SECURITY NO. OF SECURITIES TO BE NO. OF SECURITIES TO BE PURCHASED BY CATTERTON PURCHASED BY WARBURG Total Series B Preferred, 18,367.00 110,204 of which: Catterton Partners 74.77% Catterton Offshore 24.43% Catterton Coinvest 0.80% Total Series C Preferred, 28,571.00 171,429 of which: Catterton Partners 74.77% Catterton Offshore 24.43% Catterton Coinvest 0.80% Total Common Stock, 102,041.00 612,245 of which: Catterton Partners 74.77% Catterton Offshore 24.43% Catterton Coinvest 0.80% 15 APPENDIX B WARBURG ENTITY PERCENTAGE INTEREST - -------------- ------------------- WARBURG PINCUS PRIVATE EQUITY VIII, L.P. 96.910% WARBURG PINCUS NETHERLANDS PRIVATE EQUITY VIII I, C.V. 1.648% WARBURG PINCUS NETHERLANDS PRIVATE EQUITY VIII II, C.V. 1.161% WARBURG PINCUS GERMANY PRIVATE EQUITY VIII K.G. 0.281% 16 EX-99 3 escrow.txt EXHIBIT 6: ESCROW AGREEMENT EXHIBIT 6 ESCROW AGREEMENT ESCROW AGREEMENT (this "AGREEMENT"), dated as of October 8, 2004, by and among Jarden Corporation, a Delaware corporation (the "COMPANY"), Warburg Pincus Private Equity VIII, L.P. (the "INVESTOR") and National City Bank, a national banking association, as escrow agent (the "ESCROW AGENT"). The Investor and the Company are sometimes referred to herein, collectively, as the "INTERESTED PARTIES." R E C I T A L S WHEREAS, the Investor and the Company are parties to a Purchase Agreement, dated as of September 19, 2004 (the "PURCHASE AGREEMENT"), pursuant to which the Investor will purchase from the Company, and the Company will sell to the Investor, 128,571 shares of Series B Convertible Participating Preferred Stock of the Company (the "SERIES B PREFERRED STOCK"), 200,000 shares of Series C Mandatory Convertible Participating Preferred Stock of the Company (the "SERIES C PREFERRED STOCK" and, together with the Series B Preferred Stock, the "PREFERRED STOCK") and 714,286 shares of Common Stock, par value $0.01 per share, of the Company (the "COMMON STOCK"); and WHEREAS, Section 1.2(a)(2) of the Purchase Agreement provides that the Company shall deposit certificates (the "STOCK CERTIFICATES") representing, respectively, the number of Preferred Shares and Common Shares (collectively the "SECURITIES") with the Escrow Agent; WHEREAS, Section 1.2(a)(3) of the Purchase Agreement provides that the Investor shall deliver by wire transfer of immediately available United States funds the purchase price thereof in the amount of $350,000,000 (the "CASH PROCEEDS") with the Escrow Agent; WHEREAS, the Cash Proceeds are needed for the payment of amounts due under the AHI Acquisition Agreement in connection with the closing of the transactions contemplated thereby in accordance with the terms and condition of the AHI Acquisition Agreement. WHEREAS, the parties desire that the Escrow Agent shall hold, and the Escrow Agent has agreed to hold, all amounts and Stock Certificates delivered to and deposited with the Escrow Agent hereunder in escrow on the terms and conditions provided in this Agreement. NOW, THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement hereby agree as follows: 1. DEFINITIONS. Unless otherwise defined, the defined terms herein shall have the same meanings herein as in the Purchase Agreement. 2. APPOINTMENT OF ESCROW AGENT; ESCROW DEPOSIT. The Investor and the Company hereby appoint the Escrow Agent as the escrow agent under this Agreement, and the Escrow Agent accepts such appointment according to the terms and conditions set forth herein. Simultaneously with the execution of this Agreement, the Company has deposited the Stock Certificates (undated in the case of the Stock Certificates for the Preferred Stock) registered in the name of National City Bank, as Escrow Agent and the Investor has deposited the Cash Proceeds with the Escrow Agent. All of such Cash Proceeds, together with any interest accrued thereon, shall be hereinafter referred to as the "ESCROW CASH." The Stock Certificates and the Escrow Cash are collectively referred to as the "ESCROW DEPOSIT." The Escrow Agent shall credit to an account (the "ESCROW ACCOUNT") the Escrow Cash and shall hold, invest, reinvest, manage, administer, distribute and dispose of the Escrow Deposit only in accordance with the terms and conditions of this Agreement. 3. INVESTMENT OF ESCROW CASH. Until the termination of this Agreement, the Escrow Cash shall be fully invested (as directed by the Company by written instruction to the Escrow Agent) solely in one or more of the investments referred to below: (a) interest bearing time deposits with maturity dates of 30 days or less of any bank located within the United States of America, including one or more accounts maintained in the commercial banking department (if any) of the Escrow Agent; PROVIDED that any amount held on deposit in any bank having a capital and surplus of less than $50,000,000 shall be so invested only if such amount is insured by the Federal Deposit Insurance Corporation ("FDIC"); (b) certificates of deposit with maturity dates of 30 days or less issued by the commercial banking department (if any) of the Escrow Agent, or of any bank located in the United States of America, PROVIDED, HOWEVER, that either (A) any such bank shall have a capital and surplus of at least $50,000,000, or (B) the full amount of each and every certificate of deposit issued by any such bank to the Escrow Agent hereunder shall be insured by the FDIC; (c) direct obligations of, or obligations guaranteed as to all principal and interest by, the United States of America, in each case with maturity dates of 30 days or less; (d) repurchase agreements with maturity dates of 30 days or less that are fully secured as to payment of principal and interest by collateral consisting of obligations described in Sections 3(a) through 3(c) above; (e) commercial paper with maturity dates of 30 days or less that is rated A-1 by Standard & Poor's Corporation or Prime-1 by Moody's Investors Service, Inc., or better; or (f) investments in institutional money market funds investing principally in obligations permitted by Sections 3(a) through (e) above or any money markets offered by the Escrow Agent or its Affiliate relating to which the Escrow Agent or its Affiliate serves as primary investment advisor and receives a fee. In the event that the Escrow Agent does not receive written investment instructions from the Company, the Company directs the Escrow Agent to invest/reinvest the Escrow Cash in Armada Money Market Fund which fund invests solely in obligations permitted in Section 3(f) above (for which the Escrow Agent or an Affiliate serves as primary investment advisor and receives a fee) until such investment instruction is received. The parties -2- acknowledge that the Escrow Agent shall not be responsible for any diminution in the Escrow Cash due to losses resulting from investments made pursuant to this Agreement, including without limitation any market loss on any investment liquidated prior to maturity in order to make a payment required hereunder. All earnings or income from investments shall be added to the Escrow Cash. 4. RELEASE FROM ESCROW UPON AHI ACQUISITION. The Escrow Agent shall hold the Escrow Deposit in escrow in accordance with this Agreement and shall make payments or transfers from the Escrow Deposit only (i) in accordance with this Section 4 for (x) the payment of amounts due under the AHI Acquisition Agreement in connection with the closing of the transactions contemplated thereby (including, without limitation, amounts due by the Company under applicable tax law pursuant to Section 16(c)) or (y) the repayment of indebtedness required in connection with the closing of the AHI Acquisition, (ii) the payment of amounts due with respect to any withholding taxes required to be remitted to any taxing authority with respect to any payment made under the AHI Acquisition Agreement, (iii) in accordance with Section 5 or 14(b) of this Agreement or (iv) upon joint written instructions from the Company and the Investor. (a) No less than 2 Business Days prior to the AHI Acquisition, the Company shall deliver a written notice (the "AHI ACQUISITION NOTICE") to the Escrow Agent, with a copy to the Investor, setting forth the date on which the AHI Acquisition is scheduled to close in accordance with the terms of the AHI Acquisition Agreement (as such term is defined in the Purchase Agreement) and the wire transfer instructions for (x) the payment of the Cash Proceeds to the sellers under the AHI Acquisition Agreement or otherwise in accordance with Section 3.1 of the AHI Acquisition Agreement (including, without limitation, the payment of amounts due by the Company under applicable tax law pursuant to Section 16(c)), (y) the repayment of indebtedness required in connection with the closing of the transactions contemplated thereby or (z) the payment by the Company of amounts due in respect of any withholding taxes required to be remitted to any taxing authority with respect to any payment made under the AHI Acquisition Agreement. The Company shall deliver with the AHI Acquisition Notice a properly completed Form W-9 (or Form W-8 BEN, in the case of non-U.S. persons) for each person receiving payment under this Section 4(a). For purposes of this Agreement, the term "BUSINESS DAY" shall mean any day on which banks are open for business in New York, New York and on which the Escrow Agent is open for business in Cleveland, Ohio. (b) On the date specified in the AHI Acquisition Notice, the Escrow Agent shall take the following actions: (i) (x) deliver the Stock Certificates for the Preferred Stock with stock powers completed by the Escrow Agent to the Company's transfer agent, (y) request delivery by the transfer agent of new stock certificates for the Preferred Stock (in the name of the Investor or as otherwise directed by the Investor in writing prior to such date) and (z) deliver electronically the Common Stock (in the name of the Investor or as otherwise directed by the Investor in writing prior to such date) to such brokerage account as shall have previously been notified in writing by the Investor to the Escrow Agent; -3- (ii) wire transfer in immediately available United States funds from the Escrow Account to the bank account(s) designated in the AHI Acquisition Notice an amount equal to the Cash Proceeds; and (iii) wire transfer in immediately available United States funds to the Company's bank account set forth in Section 13(b) the remainder of the Escrow Cash. On the date specified in the AHI Acquisition Notice, the Company shall (i) reconfirm to the Investor that the AHI Acquisition is closing on such date and (ii) deliver to the Investor's counsel (Wachtell, Lipton, Rosen & Katz) stock certificates for the Preferred Stock (in the name of the Investor or as otherwise directed by the Investor in writing prior to such date), together with a letter, INTER ALIA, irrevocably instructing such counsel to hold such certificates in escrow and not deliver them to any person unless and until the Escrow Agent has taken the actions set forth in clause (b)(i) above. The Investor hereby acknowledges and agrees that it will cause its counsel to comply with such instructions. Simultaneously with the actions set forth in clauses (i) through (iii) above, the Company shall cause the transfer agent to register on the Company's stock ledgers the issuance of the Securities to the Investor. 5. RELEASE FROM ESCROW DEPOSIT UPON AHI TERMINATION EVENT. (a) Within 2 Business Days following the delivery by an Interested Party to the Escrow Agent and the other Interested Party (the "NOTICE RECIPIENT"), of a AHI Termination Event Notice in accordance with the terms of Section 5(c) below (the "TERMINATION RESPONSE PERIOD"), the Notice Recipient may respond to the AHI Termination Event Notice. If the Notice Recipient does not respond to the AHI Termination Event Notice within the Termination Response Period, the terms of such notice shall be deemed to be approved by the Notice Recipient, and the Escrow Agent shall release the Escrow Deposit as follows: (i) deliver the Stock Certificates to the Company; and (ii) wire transfer the Escrow Cash in immediately available United States funds to the Investor's bank account set forth in Section 13(b). (b) At any time during the Termination Response Period, the Notice Recipient may notify the other parties to this Agreement in writing that it is disputing the AHI Termination Event Notice. Thereafter, the Escrow Agent shall not distribute any part of the Escrow Deposit until the occurrence of one of the following events: (i) The Escrow Agent shall have been directed to distribute such part of the Escrow Deposit in accordance with the joint written instructions of the Company and the Investor; (ii) The Escrow Agent shall have been directed to distribute such part of the Escrow Deposit to the Company in accordance with the instructions of the Investor or to the Investor in accordance with the instructions of the Company; or -4- (iii) The Escrow Agent shall have received a certified or official copy of a final binding/nonapealable decision of any court of competent jurisdiction or arbitral panel from which no appeal may be taken, in which case the Escrow Agent shall distribute such part of the Escrow Deposit to the Company and/or the Investor to the extent provided in such final binding/nonapealable decision. (c) For purposes of this Agreement, the Investor and/or the Company may send a notice (the "AHI TERMINATION EVENT NOTICE") specifying that the transactions described in Section 1.3 of the Purchase Agreement are terminated as follows: (i) at any time, a written notice from the Investor to the Escrow Agent and the Company (A) if the AHI Acquisition Agreement has been terminated or (B) following March 15, 2005, if the AHI Acquisition has not occurred; (ii) at any time, a written notice from the Company to the Escrow Agent and the Investor, if an Acquisition Termination Event has occurred; provided that the Company has delivered to the Investor (with a copy to the Escrow Agent) a written notice stating that the Company has a BONA FIDE intention not to pursue any transaction whereby the Company would acquire a majority of the voting stock of AHI or all or substantially all of the assets of AHI; "ACQUISITION TERMINATION EVENT" means termination for any reason of the AHI Acquisition Agreement; PROVIDED, HOWEVER, that an Acquisition Termination Event shall not be deemed to have occurred until the 30th day following such termination, and shall not be deemed to have occurred if within such 30 day period the Corporation or any of the Company Subsidiaries shall have agreed to acquire a majority of the voting stock of AHI or all or substantially all of the assets of AHI or the Company or AHI shall have publicly announced an interest in making or pursuing such a transaction after such termination; or (iii) at any time, a written notice from either Interested Party to the Escrow Agent and the other Interested Party if a Governmental Entity shall have issued an order or taken any other action (if a Governmental Entity shall have issued an order or taken any other action (which order or other action the party seeking to terminate shall have used all of its reasonable efforts to resist, resolve or lift, as applicable, subject to the provisions of Section 3.1 of the Purchase Agreement)) enjoining or otherwise prohibiting the consummation of the transactions contemplated by the Purchase Agreement or this Agreement, and such order or other action shall have become final and non-appealable; PROVIDED, HOWEVER, that the Interested Party seeking to send a AHI Termination Event Notice pursuant to this clause (iii) has fulfilled its obligations under Section 3.1 of the Purchase Agreement. Any AHI Termination Event Notice shall specify that (x) it is an AHI Termination Event Notice and (y) the clause of this Section 5 pursuant to which it is being sent. Notwithstanding anything herein to the contrary, the Escrow Agent does not have any duty or obligation to determine or otherwise consider whether the Interested Party sending the AHI Termination Notice is or is not entitled to send such notice under the terms of clauses (i), (ii) or (iii) of this Section 5. -5- 6. CONDITIONS TO ESCROW. The Escrow Agent agrees to hold the Escrow Deposit and to perform its obligations in accordance with the terms and provisions of this Agreement. The Investor and the Company agree that the Escrow Agent does not assume any responsibility for the failure of the Investor or the Company to perform their respective obligations in accordance with the Purchase Agreement or this Agreement. The acceptance by the Escrow Agent of its responsibilities hereunder is subject to the following terms and conditions, which the parties hereto agree shall govern and control with respect to the Escrow Agent's rights, duties, liabilities and immunities: (a) The Escrow Agent undertakes to perform only those duties as are specifically provided herein, which shall be deemed purely ministerial in nature, and shall under no circumstances be deemed a fiduciary for any of the Interested Parties. The Escrow Agent shall neither be responsible for, or chargeable with knowledge of the terms and conditions of any other agreement, instrument or document between the Interested Parties, in connection herewith, including without limitation the Purchase Agreement. This Agreement sets forth all matters pertinent to the duties contemplated hereunder, and no additional obligations of the Escrow Agent shall be inferred from the terms of this Agreement or any other agreement. (b) The parties to this Agreement hereby acknowledge and agree that all instructions, directions or other communications given by the Investor or the Company shall be made pursuant to a writing signed by a duly authorized officer of the Investor or the Company, as the case may be. The Escrow Agent may rely and shall be protected in acting or refraining from acting upon any written notice, instruction or request furnished to it hereunder and believed by it to be genuine and to have been signed or presented by the proper party or parties. (c) The Escrow Agent shall not be liable for any action taken and believed by it to be authorized or within the rights or powers conferred upon it by this Agreement, and may consult with counsel of its own choice and shall have full and complete authorization and protection for any action taken or suffered by it hereunder in good faith and in accordance with the opinion of such counsel. 7. SUCCESSOR ESCROW AGENT. (a) The Escrow Agent may resign and be discharged from its duties or obligations hereunder by giving not less than thirty (30) days notice in writing to the parties of such resignation specifying a date when such resignation shall take effect. The Investor and the Company agree to designate a successor escrow agent, by a jointly executed written instrument delivered to the Escrow Agent, together with the acceptance of such successor on or before such effective date. After the effective date of such resignation, the Escrow Agent shall be under no further obligation to perform any of the duties of the Escrow Agent under this Agreement other than to deliver the Escrow Deposit, and any notices or other written communications or documents received by the Escrow Agent in its capacity as such, to the successor escrow agent. (b) In the event that the bank acting as Escrow Agent merges or consolidates with another bank or sells or transfers all or substantially all of its assets or trust business, then the successor or resulting bank shall be the Escrow Agent hereunder without the -6- necessity of further action or the execution of any document, so long as such successor or resulting bank meets the requirements of a successor escrow agent hereunder. 8. INDEMNIFICATION. The Company and Investor hereby agrees to jointly and severally indemnify the Escrow Agent, its directors, officers, agents and employees (collectively, the "INDEMNIFIED PARTIES") for and to hold them harmless against any loss, liability or expense (including, without limitation, all expenses reasonably incurred in its investigation and defense) incurred without gross negligence or willful misconduct on the part of the Indemnified Parties arising out of or in connection with this Agreement. The provisions of this Section 8 shall survive the termination of this Agreement. Without limiting the foregoing, the Company will pay and will hold harmless the Investor against all costs and expenses relating to the indemnification of the Escrow Agent pursuant to this Section 8. 9. DISTRIBUTIONS; CONVERSION. Any securities or other property to be received as a distribution or dividend with respect to, in substitution of, as a conversion of, or in exchange for the Securities, pursuant to the Articles of Incorporation of the Company or otherwise, shall be directed by the Company to the Escrow Agent to substitute and replace the Securities. 10. BUSINESS DAYS. If any date on which the Escrow Agent is required to make an investment or a delivery pursuant to the provisions hereof is not a Business Day, then the Escrow Agent shall make such investment or delivery on the next succeeding Business Day. Notwithstanding anything herein to the contrary, in no event shall the Escrow Agent be required to disburse funds (or take any other actions required of the Escrow Agent) sooner than 2 Business Days following the receipt of instructions or the passage of the applicable time period. 11. ESCROW COSTS. Unless specifically set forth herein, the Company agrees to pay the Escrow Agent reasonable compensation as set out on Exhibit A (attached hereto) for the services to be rendered hereunder and furthermore will pay or reimburse Escrow Agent upon request for all expenses, disbursements and advances, including attorney's reasonable fees, incurred or made by it in connection with carrying out its duties hereunder. 12. TRUST FUND. The Escrow Deposit shall be held as a trust fund and shall not be subject to any lien, attachment, trustee process or any other judicial process of any creditor of the Company. 13. NOTICES AND WIRING INSTRUCTIONS. (a) All demands, notices, communications and reports provided for in this Agreement will be in writing and will be either personally delivered, mailed by first class mail (postage prepaid) or sent by reputable overnight courier service (delivery charges prepaid) or by facsimile transmissions to any party at the address specified below, or at such address, to the attention of such other person, and with such other copy, as the recipient party has specified by prior written notice to the sending party pursuant to the provisions of this Section 13. -7- If to the Company: Jarden Corporation 555 Theodore Fremd Avenue Suite B-320 Rye, New York 10580 Telephone: (914) 967-9400 Telecopy: (914) 967-9405 Attn: Martin E. Franklin Copy to: Willkie Farr & Gallagher LLP 787 Seventh Avenue New York, New York 10019 Telephone: (212) 728-8592 Telecopy: (212) 728-8111 Attn: Jeffrey S. Hochman, Esq. If to the Investor: Warburg, Pincus Private Equity VIII, L.P. 466 Lexington Avenue New York, New York 10017 Telephone: (212) 878-0600 Telecopy: (212) 716-5032 Attn: Charles Kaye David Barr Copy to: Wachtell, Lipton, Rosen & Katz 51 West 52nd Street New York, New York 10019-6150 Telephone: (212) 403-1000 Telecopy: (212) 403-2000 Attn: Andrew R. Brownstein, Esq. David M. Silk, Esq. -8- If to the Escrow Agent: National City Bank 1900 East 9th Street, LOC 2111 Cleveland, OH 44114 Attn: Dawn DeWerth Telephone: (216) 222-9225 Telecopy: (216) 222-7044 Any such demand, notice, communication or report will be deemed to have been given pursuant to this Agreement when delivered personally, on the day when actually received by U.S. mail, on the business day after deposit with a reputable overnight courier service or on the business day following the date on which the sender receives confirmation of receipt of a notice sent by facsimile, as the case may be. (b) WIRING INSTRUCTIONS. Any funds to be paid to or by the Escrow Agent hereunder shall be sent by wire transfer pursuant to the following instructions (or by such method of payment and pursuant to such instruction as may have been given in advance and in writing to or by the Escrow Agent, as the case may be, in accordance with Section 13(a) above): If to Investor: Bank: JP Morgan Chase ABA #: 021000021 Acct. #: 323-381685 Acct. Name: Warburg Pincus & Co as WP VIII Nominee Outgoing Ref: Jarden Corporation If to Company: Bank: Bank of America ABA #: 11100012 Acct. #: 3752171695 Ref: Jarden Corporation If to the Escrow Account: Bank: National City Bank ABA#: 041000124 BNF#: 2171150005490 Attn: Kim Lewis x 22493 or Dawn DeWerth x 29225 Ref: Jarden/Warburg Pincus Private Equity VIII, L.P. 14. TERMINATION. (a) This Agreement shall terminate on the earliest to occur of: -9- (i) the date on which the Escrow Agent shall have been notified in joint writing by the Investor and the Company that this Agreement shall be terminated; (ii) the date on which the Escrow Agent shall have delivered the entire Escrow Deposit to the Investor and the Company in accordance with the provisions of Sections 4 or 5; or (iii) on June 19, 2005. (b) Upon termination of this Agreement as set forth in this Section 14, the Escrow Agent shall be discharged from all further obligations or responsibilities hereunder. In the event this Agreement is terminated pursuant to Section 14(a)(iii), the Escrow Agent shall release the Escrow Deposit as follows: (i) deliver the Stock Certificates to the Company; and (ii) wire transfer the Escrow Cash in immediately available United States funds to the Investor's bank account set forth in Section 13(b). 15. ENTIRE AGREEMENT. This Agreement and together with the Purchase Agreement (including the Exhibits and Disclosure Schedules hereto) with respect to the Interested Parties only, contains the entire understanding of the parties hereto with respect to the transactions contemplated hereby and may be amended, modified, supplemented or altered only by a writing duly executed by the Escrow Agent, the Company and the Investor, and any prior agreements or understandings, whether oral or written, are entirely superseded hereby. 16. TAXATION OF INTEREST EARNED ON INVESTMENTS OF ESCROW DEPOSIT. (a) The parties hereby acknowledge that, for federal and state income tax purposes, the interest earned on the investment of the Escrow Deposit shall be income of the party to whom such interest is distributed and otherwise shall be reported as allocated to the Company. The Escrow Agent shall provide monthly transaction and asset holdings statement to the Interested Parties. The Interested Parties are solely responsible for following for proper tax treatment/reporting of the Escrow Deposit and the Escrow Agent shall not provide any tax reporting or accounting services. (b) The Interested Parties hereto agree to provide the Escrow Agent with a certified tax identification number by signing and returning a Form W-9 (or Form W-8 BEN, in case of non-U.S. persons) to the Escrow Agent upon the execution and delivery of this Agreement. (c) The Company agrees (i) to assume any and all obligations imposed now or hereafter by any applicable tax law with respect to any payment or distribution of the Escrow Deposit or performance of other activities under this Agreement, (ii) to hold any required withholding and other taxes, assessments or other governmental charges, and provide any certifications and governmental reporting that may be required under any laws or regulations that may be applicable in connection with this Agreement, and (iii) to indemnify and hold the Escrow -10- Agent harmless from any liability or obligation on account of taxes, assessments, additions for late payment, interest penalties, expenses and other governmental charges that may be assessed or asserted against the Escrow Agent in connection with, on account of or relating to the Escrow Deposit, the management established hereby, any payment or distribution of or from the Escrow Deposit pursuant to the terms hereof or other activities performed under the terms of this Agreement, including without limitation any liability for the withholding or deduction of (or the failure to withhold or deduct) the same, and any liability for failure to obtain proper certifications or to report properly to governmental authorities in connection with this Agreement, including costs and expenses (including reasonable legal fees and expenses), interest and penalties. The foregoing indemnification and agreement to hold harmless shall survive the termination of this Agreement. 17. NO OTHER THIRD PARTY BENEFICIARIES. Except as otherwise expressly provided herein, nothing herein expressed or implied is intended or shall be construed to confer upon or to give any person other than the parties hereto and their respective successors and permitted assigns any rights or remedies under or by reason of this Agreement. 18. AMENDMENTS. No amendment of any provision of this Agreement will be effective unless made in writing and signed by an officer or a duly authorized representative of each party hereto. No waiver of any provision of this Agreement will be effective with respect to any party unless made in writing and signed by an officer or a duly authorized representative of such party. 19. WAIVER. The conditions to each party's obligation under this Agreement are for the sole benefit of such party and may be waived by such party in whole or in part to the extent permitted by applicable law. No waiver will be effective unless it is in a writing signed by a duly authorized officer of the waiving party that makes express reference to the provision or provisions subject to such waiver. 20. SEVERABILITY. If any provision of this Agreement or the application thereof to any person (including, without limitation, the officers and directors of the Investor, the Company and the Escrow Agent) or circumstance is determined by a court of competent jurisdiction to be invalid, void or unenforceable, the remaining provisions hereof, or the application of such provision to persons or circumstances other than those as to which it has been held invalid or unenforceable, will remain in full force and effect and shall in no way be affected, impaired or invalidated thereby, so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination, the parties shall negotiate in good faith in an effort to agree upon a suitable and equitable substitute provision to effect the original intent of the parties. 21. GOVERNING LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE. The parties hereby irrevocably and unconditionally consent to submit to the exclusive jurisdiction of the state and federal courts located in the State of New York for any actions, suits or proceedings arising out of or relating to this Agreement and the transactions contemplated hereby. -11- 22. WAIVER OF JURY TRIAL. EACH OF THE COMPANY AND INVESTOR HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. 23. COUNTERPARTS AND FACSIMILE. For the convenience of the parties hereto, this Agreement may be executed in any number of separate counterparts, each such counterpart being deemed to be an original instrument, and all such counterparts will together constitute the same agreement. Executed signature pages to this Agreement may be delivered by facsimile and such facsimiles will be deemed as sufficient as if actual signature pages had been delivered. * * * * * * -12- IN WITNESS WHEREOF, this Agreement has been duly executed and delivered by the duly authorized officers of the parties hereto as of the date first herein above written. JARDEN CORPORATION, as the Company By: /s/ Desiree DeStefano ----------------------------------- Name: Desiree DeStefano Title: Senior Vice President WARBURG PINCUS PRIVATE EQUITY VIII, L.P., as Investor By: Warburg, Pincus & Co., its General Partner By: /s/ Timothy J. Curt ----------------------------------- Name: Timothy J. Curt Title: Partner NATIONAL CITY BANK, as Escrow Agent By: /s/ James Schultz ----------------------------------- Name: James Schultz Title: Vice President -----END PRIVACY-ENHANCED MESSAGE-----