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"), Xxxxxxxxx Partners V, L.P. ("XXXXXXXXX PARTNERs"), Xxxxxxxxx
Partners V Offshore, L.P. ("XXXXXXXXX OFFSHORE"), Xxxxxxxxx Coinvest I , L.L.C.
("XXXXXXXXX COINVEST", and together with Xxxxxxxxx Partners and Xxxxxxxxx
Offshore, "XXXXXXXXX"), Xxxxxxx Xxxxxx 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
Xxxxxxxxx certain rights, and that Xxxxxxxxx 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 Xxxxxxxxx to enter into this
Agreement, the Company has agreed to grant to Xxxxxxxxx certain rights set forth
herein with respect to Xxxxxxxxx'x purchase of the Assigned Shares (as defined
below) and certain other matters; and
WHEREAS, Xxxxxxxxx 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 Xxxxxxxxx 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 Xxxxxxxxx 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. Xxxxxxxxx
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. Xxxxxxxxx hereby agrees with Warburg that, at the Closing,
Xxxxxxxxx will purchase the Assigned Shares for an aggregate purchase price of
$49,999,290 (the "XXXXXXXXX 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), Xxxxxxxxx will pay to Warburg the
Xxxxxxxxx Purchase Price, which shall be held in accordance with the terms of
the Escrow Agreement. Xxxxxxxxx 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
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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 Xxxxxxxxx in a manner that is
disproportionately adverse to the adverse effect such amendment or waiver has on
Warburg unless Xxxxxxxxx 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 Xxxxxxxxx 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, Xxxxxxxxx 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 XXXXXXXXX TO WARBURG.
Xxxxxxxxx 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 Xxxxxxxxx; 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 Xxxxxxxxx, 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 Xxxxxxxxx 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) Xxxxxxxxx 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).
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(b) The Company agrees with Xxxxxxxxx that Xxxxxxxxx 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 Xxxxxxxxx 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 Xxxxxxxxx represent less than 25% of the Xxxxxxxxx Share Base (a
"XXXXXXXXX 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 Xxxxxxxxx and its representatives (including,
without limitation, officers and employees of Xxxxxxxxx, and counsel,
accountants and other professionals retained by Xxxxxxxxx) 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 Xxxxxxxxx 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 "XXXXXXXXX SHARE BASE" equals the number of Series B Preferred
Shares that would have been purchased by Xxxxxxxxx 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) Xxxxxxxxx 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) Xxxxxxxxx agrees that until the fifth anniversary of the
Closing Date, without the prior approval of the Company, Xxxxxxxxx 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 Xxxxxxxxx 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
Xxxxxxxxx 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
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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 Xxxxxxxxx has less
than 50% voting control, provided that Xxxxxxxxx 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 Xxxxxxxxx.
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 Xxxxxxxxx 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 Xxxxxxxxx
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 Xxxxxxxxx owns Securities
representing the Xxxxxxxxx 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 Xxxxxxxxx hereby agree that Xxxxxxxxx
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
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Company seeks a new independent director to serve as the ninth director on the
Board of the Company, Xxxxxxxxx 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 Xxxxxxxxx at any time beneficially owns less than 75%
of the Assigned Shares, then Xxxxxxxxx'x approval rights pursuant to Section
9(a) above shall terminate.
10. LEGEND.
(a) Xxxxxxxxx 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 Xxxxxxxxx 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 Xxxxxxxxx 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. Xxxxxxxxx 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 Xxxxxxxxx and (y) Series B Preferred Shares sufficient for
issuance upon conversion of Series C Preferred Shares owned at any time by
Xxxxxxxxx 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. Xxxxxxxxx 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
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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 Xxxxxxxxx
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 Xxxxxxxxx hereunder, and the transferor Investor shall be
relieved of such acquired obligations. The term "Xxxxxxxxx" will be deemed to
include such Affiliate funds that acquire Securities pursuant to this Agreement.
14. PROXY. At the Closing, each of Xxxxxxxxx V, Xxxxxxxxx Offshore and
Xxxxxxxxx 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. Xxxxxxxxx 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. Xxxxxxxxx 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 Xxxxxxxxx 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 Xxxxxxxxx in respect of which
such deduction and withholding was made by the Company. Prior to Xxxxxxxxx
receiving any Assigned Shares, Xxxxxxxxx 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.
Xxxxxxxxx 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 Xxxxxxxxx Purchase Price (or such pro rata
portion of the Xxxxxxxxx Purchase Price payable to Xxxxxxxxx out of the funds
received pursuant to the Escrow Agreement based on the equity committed to the
purchase of the Securities by Warburg and Xxxxxxxxx) to Xxxxxxxxx, 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.
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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
Xxxxxxxxx, agree to any amendment or waiver of the Purchase Agreement if such
amendment or waiver affects the rights and privileges of Xxxxxxxxx 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
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persons designated in 6.7 of the Purchase Agreement. All notices required to be
delivered to Xxxxxxxxx, or to an "Investor" under the Purchase Agreement, shall
be sent to:
Xxxxxxxxx Partners
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attn: Xxxx Xxxxxxx
with a copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Telecopy: (000) 000-0000
Attn: Xxxx X. Xxxxx, 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 Xxxxxxxxx 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
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or permitted Transferees of Xxxxxxxxx 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 Xxxxxxxxx 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, Xxxxxxxxx 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 Xxxxxxxxx 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 Xxxxxxxxx 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 Xxxxxxxxx
pursuant to this Section 17(m) only if Xxxxxxxxx would have had the same right
to xxx, or other entitlement to remedies, as Warburg assuming Xxxxxxxxx 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 Xxxxxxxxx.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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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/ Xxxxxxx XxXxxxxxx
---------------------------------
Name: Xxxxxxx XxXxxxxxx
Title: Senior Vice President
12
XXXXXXXXX PARTNERS V, X.X.
XXXXXXXXX PARTNERS V
OFFSHORE, L.P.
By: Xxxxxxxxx Managing Partner V,
L.L.C., General Partner
By: CP5 Principals, L.L.C.,
Managing Member
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Partner
XXXXXXXXX COINVEST I, L.L.C.
By: Xxxxxxxxx Partners V Management
Company, L.L.C., Managing
Member
By: /s/ Xxxx Xxxxxxx
---------------------------------
Name: Xxxx Xxxxxxx
Title: Managing Partner
13
WARBURG PINCUS
PRIVATE EQUITY VIII, L.P.
By: WARBURG, XXXXXX & CO.,
its General Partner
By: /s/ Xxxxxxx X. Xxxx
--------------------------------
Name: Xxxxxxx X. Xxxx
Title: General Managing Partner
WARBURG PINCUS NETHERLANDS
PRIVATE EQUITY VIII C.V. I,
By: WARBURG, XXXXXX & CO.,
its General Partner
By: /s/ Xxxxxxx X. Xxxx
--------------------------------
Name: Xxxxxxx X. Xxxx
Title: General Managing Partner
WARBURG PINCUS NETHERLANDS
PRIVATE EQUITY VIII C.V. II
By: WARBURG, XXXXXX & CO.,
its General Partner
By: /s/ Xxxxxxx X. Xxxx
--------------------------------
Name: Xxxxxxx X. Xxxx
Title: General Managing Partner
WARBURG PINCUS GERMANY
PRIVATE EQUITY VIII KG
By: WARBURG, XXXXXX & CO.,
its General Partner
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: General Managing Partner
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APPENDIX A
ASSIGNED SHARES
TYPE OF SECURITY NO. OF SECURITIES TO BE NO. OF SECURITIES TO BE
PURCHASED BY XXXXXXXXX PURCHASED BY WARBURG
Total Series B Preferred, 18,367.00 110,204
of which:
Xxxxxxxxx Partners 74.77%
Xxxxxxxxx Offshore 24.43%
Xxxxxxxxx Coinvest 0.80%
Total Series C Preferred, 28,571.00 171,429
of which:
Xxxxxxxxx Partners 74.77%
Xxxxxxxxx Offshore 24.43%
Xxxxxxxxx Coinvest 0.80%
Total Common Stock, 102,041.00 612,245
of which:
Xxxxxxxxx Partners 74.77%
Xxxxxxxxx Offshore 24.43%
Xxxxxxxxx Coinvest 0.80%
00
XXXXXXXX X
XXXXXXX 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
