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 Xxxxx'x 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
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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;
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(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, Xxxxx & Xxxx)
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
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(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.
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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
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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.
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If to the Company:
Jarden Corporation
000 Xxxxxxxx Xxxxx Xxxxxx
Xxxxx X-000
Xxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxx
Copy to:
Xxxxxxx Xxxx & Xxxxxxxxx LLP
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxx, Esq.
If to the Investor:
Warburg, Xxxxxx Private Equity VIII, L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn: Xxxxxxx Xxxx
Xxxxx Xxxx
Copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxxxxx, Esq.
Xxxxx X. Silk, Esq.
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If to the Escrow Agent:
National City Bank
0000 Xxxx 0xx Xxxxxx, XXX 0000
Xxxxxxxxx, XX 00000
Attn: Xxxx XxXxxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
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: XX Xxxxxx Xxxxx
ABA #: 000000000
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#: 000000000
BNF#: 2171150005490
Attn: Xxx Xxxxx x 22493 or Xxxx XxXxxxx x 29225
Ref: Jarden/Warburg Pincus Private Equity VIII, L.P.
14. TERMINATION.
(a) This Agreement shall terminate on the earliest to occur of:
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(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
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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.
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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.
* * * * * *
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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, as the Company
By: /s/ Xxxxxxx XxXxxxxxx
-----------------------------------
Name: Xxxxxxx XxXxxxxxx
Title: Senior Vice President
WARBURG PINCUS
PRIVATE EQUITY VIII, L.P.,
as Investor
By: Warburg, Xxxxxx & Co.,
its General Partner
By: /s/ Xxxxxxx X. Xxxx
-----------------------------------
Name: Xxxxxxx X. Xxxx
Title: Partner
NATIONAL CITY BANK, as Escrow Agent
By: /s/ Xxxxx Xxxxxxx
-----------------------------------
Name: Xxxxx Xxxxxxx
Title: Vice President
