-----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, UuokE0r4zLNSNryvlQ9VID7hZxwJ99h3pzqdg++CvLHlZjAK+SpU6M0+2UDVlN9U 8bY7SwcTGycpN4aqI6vGSw== 0000898822-06-000728.txt : 20060609 0000898822-06-000728.hdr.sgml : 20060609 20060608180145 ACCESSION NUMBER: 0000898822-06-000728 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 2 FILED AS OF DATE: 20060609 DATE AS OF CHANGE: 20060608 GROUP MEMBERS: WARBURG PINCUS & CO. GROUP MEMBERS: WARBURG PINCUS LLC GROUP MEMBERS: WARBURG PINCUS PARTNERS LLC 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: 06894989 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 sc13da.txt SCHEDULE 13D/A -- AMENDMENT NO. 5 ================================================================================ UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ---------------------------------- SCHEDULE 13D/A (AMENDMENT NO. 5) 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 of Communication) ---------------------------------- 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 JUNE 8, 2006 (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 10 Pages) - -------------------------- -------------------------- - -------- ----------------------------------------------------------------------- 1 NAME OF REPORTING PERSON Warburg Pincus Private Equity VIII, L.P. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS 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 - -------- ----------------------------------------------------------------------- 7 SOLE VOTING POWER 0 NUMBER OF ------ ------------------------------------------------ SHARES 8 SHARED VOTING POWER BENEFICIALLY 3,256,378 (see Items 4 and 5) OWNED BY ------ ------------------------------------------------ EACH 9 SOLE DISPOSITIVE POWER REPORTING 0 PERSON WITH ------ ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 14,589,922 (see Item 5) - -------- ----------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 14,589,922 (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)** 22.0% (see Item 5) - -------- ----------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* PN - -------- ----------------------------------------------------------------------- * SEE INSTRUCTIONS BEFORE FILLING OUT! ** This percentage is based upon the number of Shares issued and outstanding as of April 28, 2006, as set forth in Jarden Corporation's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on May 9, 2006. - -------------------------- -------------------------- CUSIP No. (471109 10 8) SCHEDULE 13D (Page 3 of 10 Pages) - -------------------------- -------------------------- - -------- ----------------------------------------------------------------------- 1 NAME OF REPORTING PERSON Warburg Pincus Partners LLC I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS 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 - -------- ----------------------------------------------------------------------- 7 SOLE VOTING POWER 0 NUMBER OF ------ ------------------------------------------------ SHARES 8 SHARED VOTING POWER BENEFICIALLY 3,256,378 (see Items 4 and 5) OWNED BY ------ ------------------------------------------------ EACH 9 SOLE DISPOSITIVE POWER REPORTING 0 PERSON WITH ------ ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 14,589,922 (see Item 5) - -------- ----------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 14,589,922 (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)** 22.0% (see Item 5) - -------- ----------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* OO - -------- ----------------------------------------------------------------------- * SEE INSTRUCTIONS BEFORE FILLING OUT! ** This percentage is based upon the number of Shares issued and outstanding as of April 28, 2006, as set forth in Jarden Corporation's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on May 9, 2006. - -------------------------- -------------------------- CUSIP No. (471109 10 8) SCHEDULE 13D (Page 4 of 10 Pages) - -------------------------- -------------------------- - -------- ----------------------------------------------------------------------- 1 NAME OF REPORTING PERSON Warburg Pincus & Co. I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS 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 - -------- ----------------------------------------------------------------------- 7 SOLE VOTING POWER 0 NUMBER OF ------ ------------------------------------------------ SHARES 8 SHARED VOTING POWER BENEFICIALLY 3,256,378 (see Items 4 and 5) OWNED BY ------ ------------------------------------------------ EACH 9 SOLE DISPOSITIVE POWER REPORTING 0 PERSON WITH ------ ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 14,589,922 (see Item 5) - -------- ----------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 14,589,922 (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) 22.0% (see Item 5) - -------- ----------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON PN - -------- ----------------------------------------------------------------------- * SEE INSTRUCTIONS BEFORE FILLING OUT! ** This percentage is based upon the number of Shares issued and outstanding as of April 28, 2006, as set forth in Jarden Corporation's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on May 9, 2006. - -------------------------- -------------------------- CUSIP No. (471109 10 8) SCHEDULE 13D (Page 5 of 10 Pages) - -------------------------- -------------------------- - -------- ----------------------------------------------------------------------- 1 NAME OF REPORTING PERSON Warburg Pincus LLC I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS 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 - -------- ----------------------------------------------------------------------- 7 SOLE VOTING POWER 0 NUMBER OF ------ ------------------------------------------------ SHARES 8 SHARED VOTING POWER BENEFICIALLY 3,256,378 (see Items 4 and 5) OWNED BY ------ ------------------------------------------------ EACH 9 SOLE DISPOSITIVE POWER REPORTING 0 PERSON WITH ------ ------------------------------------------------ 10 SHARED DISPOSITIVE POWER 14,589,922 (see Item 5) - -------- ----------------------------------------------------------------------- 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 14,589,922 (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)** 22.0% (see Item 5) - -------- ----------------------------------------------------------------------- 14 TYPE OF REPORTING PERSON* OO - -------- ----------------------------------------------------------------------- * SEE INSTRUCTIONS BEFORE FILLING OUT! ** This percentage is based upon the number of Shares issued and outstanding as of April 28, 2006, as set forth in Jarden Corporation's quarterly report on Form 10-Q filed with the Securities and Exchange Commission on May 9, 2006. This Amendment No. 5 to Schedule 13D (this "Amendment") amends and supplements the Schedule 13D, as previously amended (the "Schedule 13D"), of Warburg Pincus Private Equity VIII, L.P., a Delaware limited partnership ("WP VIII"), Warburg Pincus Partners LLC, a New York limited liability company ("WPP LLC"), 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, WPP LLC and WP, the "Reporting Entities"). The holdings of the Reporting Entities indicated in this Schedule 13D include the holdings of Warburg Pincus Netherlands Private Equity VIII C.V. I ("WPNPE VIII I") and Warburg Pincus Germany Private Equity VIII KG ("WPGPE VIII", and together with WP VIII and WPNPE VIII I, the "Investors"). WP, WPP LLC, 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"). 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"). 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 and any amendments thereto. ITEM 4. PURPOSE OF THE TRANSACTION. Item 4 is hereby amended and supplemented by adding the following thereto: "On June 8, 2006, the Investors entered into a Voting Trust Agreement, dated June 8, 2006 (the "Voting Trust Agreement"), with Martin E. Franklin, as trustee (the "Trustee"), pursuant to which the Investors vested Mr. Franklin with the sole power to vote (i) 11,333,544 shares of Common Stock held by the Investors (which represent the number of shares of Common Stock in excess of 4.9% of the Company's outstanding shares of Common Stock as of April 28, 2006), (ii) all additional shares of Common Stock that may be issued in respect of such shares, and (iii) all other shares of capital stock of the Company acquired by any of the Investors during the term of the Voting Trust Agreement pursuant to the Purchase Agreement, dated as of September 19, 2005, between WP VIII and the Company ((i), (ii) and (iii) together, the "Shares"). The Voting Trust Agreement provides the Trustee with full discretion as to how to vote the Shares as the Trustee deems proper on all matters that may be submitted to the stockholders of the Company whether at an annual or special meeting of stockholders (and whether or not adjourned or postponed) and to execute stockholders' consents at every annual and special meeting of stockholders of the Company and in any and all proceedings wherein the vote or consent of such stockholders may be required or authorized and to vote upon any and all questions arising thereat. The Investors also revoked all other proxies and powers of attorney with respect to the Shares that may have been appointed or granted. The parties have entered into the Voting Trust Agreement in connection with compliance with certain gaming laws applicable to a subsidiary of the Company. The Investors also agreed to enter into a separate custodial agreement with Merrill Lynch or one of its affiliates pursuant to which the Investors would deposit the Shares into a -6- custodial account. Under the Voting Trust Agreement, the Investors retain the right to receive and distribute any and all dividends declared on the Shares that are not in the form of shares of Common Stock. The Voting Trust Agreement does not provide the Trustee with any other rights than the voting rights described above. The Voting Trust Agreement does not restrict the Investors' ability to transfer the Shares, and the terms of the Voting Trust Agreement will not apply to any Shares transferred. The Voting Trust Agreement may be terminated by any of the parties on ten calendar days written notice, and will terminate automatically at such time as the Investors in the aggregate own less than 5% of the then outstanding shares of Common Stock, including the Shares. The foregoing description of the Voting Trust Agreement is qualified by reference to the actual terms of the Voting Trust Agreement, a copy of which is filed herewith as Exhibit 7 and is incorporated herein by reference." ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. Item 5(b) is hereby amended and restated in its entirety as follows: "(b) Due to their respective relationship with each other, as of June 8, 2006, each Group Member may be deemed to share with each other the power to vote 3,256,378 shares of Common Stock and the power to dispose of or to direct the disposition of 14,589,922 shares of Common Stock. As noted in Item 4 of this Schedule 13D, 11,333,544 shares of Common Stock beneficially owned by the Group Members is subject to a Voting Trust Agreement, pursuant to which the Trustee has the sole power to vote such 11,333,544 shares of Common Stock (as well as all additional shares of Common Stock that may be issued in respect of such shares). The Voting Trust Agreement, however, does not restrict the Investors' ability to transfer the Shares, and the terms of the Voting Trust Agreement will not apply to any Shares so transferred. In addition, the Voting Trust Agreement may be terminated by any of the parties on ten calendar days written notice, and will terminate automatically at such time as the Investors in the aggregate own less than 5% of the then outstanding shares of Common Stock, including the Shares." Item 5(c) is hereby amended and supplemented by adding the following thereto: "(c) The information contained in Item 4 is incorporated herein by reference." ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. Item 6 is hereby amended and supplemented by adding the following thereto: "The information contained in Item 4 is incorporated herein by reference." -7- ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. Item 7 is hereby amended and supplemented by adding the following thereto: "7. Voting Trust Agreement, dated as of June 8, 2006, by and among Warburg Pincus Private Equity VIII, L.P., Warburg Pincus Netherlands Private Equity VIII I, C.V., Warburg Pincus Germany Private Equity VIII, K.G. and Martin E. Franklin" -8- 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: June 8, 2006 WARBURG PINCUS PRIVATE EQUITY VIII, L.P. By: Warburg Pincus Partners LLC, its General Partner By: Warburg Pincus & Co., its Managing Member By: /s/ Scott A. Arenare ------------------------------------ Name: Scott A. Arenare Title: Partner WARBURG PINCUS PARTNERS LLC By: Warburg Pincus & Co., its Managing Member 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 INDEX OF EXHIBITS 1. Joint Filing Agreement, dated as of June 14, 2005, 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. (filed previously) 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. (filed previously) 7. Voting Trust Agreement, dated as of June 8, 2006, by and among Warburg Pincus Private Equity VIII, L.P., Warburg Pincus Netherlands Private Equity VIII I, C.V., Warburg Pincus Germany Private Equity VIII, K.G. and Martin E. Franklin EX-7 2 ex7.txt EXHIBIT 7 VOTING TRUST AGREEMENT ---------------------- AGREEMENT, dated June 8, 2006, by and among Warburg Pincus Private Equity VIII, L.P., a Delaware limited partnership ("WP VIII"); Warburg Pincus Netherlands Private Equity VIII I, C.V., a Netherlands limited partnership; Warburg Pincus Germany Private Equity VIII, K.G. (collectively the "WP ENTITIES"); and Martin E. Franklin (the "TRUSTEE"). WHEREAS, WP VIII entered into a Purchase Agreement, dated as of September 19, 2004 (the "PURCHASE AGREEMENT"), with Jarden Corporation, a Delaware corporation ("JARDEN"); WHEREAS, the WP Entities currently hold 14,589,922 shares of common stock, par value $0.01 per share (the "COMMON STOCK") of Jarden; WHEREAS, the WP Entities deem it in their best interests, as well as in the best interests of Jarden, to (a) agree to enter into a separate custodial agreement with Merrill Lynch Trust Company, FSB (the "CUSTODIAN") pursuant to which the WP Entities would deposit in an account with the Custodian 11,333,544 shares of Common Stock, which represent the number of shares in excess of 4.9% of Jarden's outstanding common stock as of the date hereof, all additional shares of Common Stock that may be issued as a dividend on such shares and all other shares of the capital stock of Jarden hereinafter acquired by any of the WP Entities pursuant to the Purchase Agreement during the term of this Agreement (collectively, the "SHARES") and (b) to vest in the Trustee, subject to the terms below, the power to vote the Shares; and NOW, THEREFORE, in consideration of the premises, of the mutual covenants herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, it is agreed by and among the WP Entities and the Trustee as follows: (1) For the duration of this Agreement, the Trustee shall have the sole power to (i) vote the Shares with full discretion as to how to vote and (ii) execute stockholders' consents at every annual and special meeting of the stockholders of Jarden and in any and all proceedings wherein the vote or consent of such stockholders may be required or authorized and to vote upon any and all questions arising thereat. (2) The Trustee hereby accepts the trust created, and covenants and agrees faithfully and diligently to perform the covenants and agreements contained herein. (3) Promptly following the execution of this Agreement, the WP Entities agree to enter into a custodial agreement with the Custodian pursuant to which the WP Entities would deposit the Shares in a fiduciary account to be held by the Custodian who shall act as custodian and hold the shares for the term of this Agreement, subject to terms to be mutually agreed upon by the WP Entities and the Custodian, PROVIDED THAT such terms are not inconsistent with the purpose and terms of this Agreement. In the event that the certificates evidencing the Shares that are deposited with the Custodian represent more than 11,333,544 shares of Common Stock (such shares in excess of 11,333,544, the "EXCESS SHARES"), the terms of this Agreement shall not apply to the Excess Shares. (4) Each of the WP Entities shall be entitled to receive and disburse in its sole discretion any and all dividends declared on the Shares that are not in the form of Common -2- Stock and, if the same be paid to the Trustee, such dividends shall be promptly disbursed by the Trustee to the WP Entities forthwith. The Trustee shall be entitled to receive dividends paid in-kind on the Shares, or any distributions made in the form of shares of capital stock of Jarden, which shall be held by the Custodian and shall be subject to the terms set forth in this Agreement. Nothing in this Agreement shall be construed to prohibit or otherwise restrict the ability of the WP Entities to transfer any or all of the Shares at any time to any third party. At the time of such transfer, the terms of this Agreement shall automatically terminate with respect to the shares being transferred. (5) This Agreement and the voting trust hereby created shall (a) terminate and be of no further force or effect upon ten (10) calendar days written notice by any of the parties hereto, or (b) terminate automatically and be of no further force or effect at such time as the WP Entities (in the aggregate) own less than five percent (5%) of the then outstanding shares of Common Stock, including the Shares (a "TERMINATION EVENT"). (6) The WP Entities agree that within ten (10) calendar days following the termination of this Agreement to notify the gaming authorities of each of the states listed on SCHEDULE A hereto. (7) This Agreement may be amended in writing by mutual agreement of the parties hereto. (8) The Trustee shall not assume any responsibility or incur any liability as stockholder, trustee or otherwise, or by reason of any error of judgment or mistake of law or other mistake, or for any action taken or omitted thereunder or believed by him to be in -3- accordance with the provisions and intentions thereof, or otherwise, except for his own gross negligence or willful misconduct. (9) This Agreement shall 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, without giving effect to the choice of law provisions thereof. (10) This Agreement shall inure to the benefit of and be binding upon the successors and assigns of each of the parties. (11) This Agreement constitutes the entire understanding of the parties hereto and supersedes all prior agreements or understanding with respect to the subject matter hereof among the parties. (12) In the event that any part or parts of this Agreement shall be held illegal and unenforceable by any court or administrative body of competent jurisdiction, such determination shall not affect the remaining provisions of this Agreement which shall remain in full force and effect. (13) The Trustee hereby agrees that he will not assert against the limited partners of any of the WP Entities any claim he may have under this Agreement by reason of any failure or alleged failure by any of the WP Entities to meet its obligations hereunder. (14) This Agreement may be executed in two or more counterparts, each of which shall be deemed an original. -4- IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be duly executed and delivered as of the date first above written. WARBURG PINCUS PRIVATE EQUITY VIII, L.P. By: Warburg Pincus Partners LLC, its General Partner By: /s/ Scott A. Arenare ------------------------------------ Name: Scott A. Arenare WARBURG PINCUS NETHERLANDS PRIVATE EQUITY VIII I, C.V. By: Warburg Pincus Partners LLC, its General Partner By: /s/ Scott A. Arenare ------------------------------------ Name: Scott A. Arenare WARBURG PINCUS GERMANY PRIVATE EQUITY VIII, K.G. By: Warburg Pincus Partners LLC, its General Partner By: /s/ Scott A. Arenare ------------------------------------ Name: Scott A. Arenare TRUSTEE: /s/ Martin E. Franklin ------------------------------------ Name: Martin E. Franklin -5- THE UNDERSIGNED ACKNOWLEDGES THAT IT IS AWARE OF THE TERMS SET FORTH IN THIS AGREEMENT: MERRILL LYNCH TRUST COMPANY, FSB By: /s/ Peter G. Pangis ------------------------------------ Name: Peter G. Pangis -6- SCHEDULE A ---------- Mississippi New Jersey -----END PRIVACY-ENHANCED MESSAGE-----