Kane Kessler, P.C.
1350 Avenue of the Americas
New York, NY 10019
January 7, 2003
Jarden Corporation
555 Theodore Fremd Avenue
Rye, New York 10580
RE: REGISTRATION STATEMENT ON FORM S-3 OF JARDEN CORPORATION
--------------------------------------------------------
Ladies and Gentlemen:
We have acted as special counsel to Jarden Corporation, a Delaware
corporation (the "Company"), and the Subsidiary Guarantors (as defined below) in
connection with the preparation of the Registration Statement on Form S-3 (the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), filed on behalf of the Company and the Subsidiary Guarantors
with the Securities and Exchange Commission (the "Commission"). You have
provided us with a draft prospectus (the "Prospectus") which is a part of the
Registration Statement. The Prospectus provides that it will be supplemented in
the future by one or more supplements to the Prospectus (each, a "Prospectus
Supplement"). The Registration Statement relates to the Company's offering of up
to an aggregate of $150,000,000 of (i) one or more series of debt securities
(the "Debt Securities"), which may be guaranteed (the "Guarantees") by the
Company's subsidiaries set forth on Exhibit A hereto (the "Subsidiary
Guarantors"), (ii) shares of common stock of the Company, par value $0.01 per
share (the "Common Stock"), (iii) shares of preferred stock of the Company, par
value $0.01 per share (the "Preferred Stock"), (iv) warrants to purchase debt
securities, Common Stock, or Preferred Stock (the "Warrants"), or any
combination of the foregoing (collectively, the "Securities"). Any series of
Debt Securities and Warrants may be convertible and/or exchangeable for Common
Stock, Preferred Stock, or another series of Debt Securities. Any series of
Preferred Stock may be convertible and/or exchangeable for Common Stock or
another series of Preferred Stock. Capitalized terms used herein and not
otherwise defined shall have the meanings assigned to such terms in the
Prospectus.
The Debt Securities will be issued pursuant to an indenture between the
Company and a Trustee (the "Trustee"), and one or more supplements thereto (the
"Indenture"). The Warrants will
January 7, 2003
Page 2
be issued pursuant to one or more warrant agreements (each, a "Warrant
Agreement"), by and between the Company and a warrant agent (each, a "Warrant
Agent").
We have examined copies of the Registration Statement, in the form
filed with the Commission through the date hereof, the Restated Certificate of
Incorporation of the Company, as amended, the By-laws of the Company, records of
certain of the Company's and Subsidiary Guarantors' corporate proceedings as
reflected in their respective minute books, and other records and documents that
we have deemed necessary for purposes of this opinion. We have also examined
such other documents, papers, authorities and statutes as we have deemed
necessary to form the basis of the opinions hereinafter set forth. We have also
assumed, with respect to any court of a jurisdiction other than New York that
may rule on an issue, the choice of New York law as the proper law to govern the
Debt Securities will be, where applicable, given effect by the courts of any
jurisdiction other than New York, and applied by such courts in proceedings
relating to the Debt Securities and the Indenture.
In our examination, we have assumed the legal capacity of all natural
persons, the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, the conformity to original documents of all
documents submitted to us as certified or photostatic copies, and the
authenticity of the originals of such latter documents. As to certain facts
material to this opinion, we have relied without independent verification upon
oral or written statements and representations of officers and other
representatives of the Company and the Subsidiary Guarantors, public officials,
and others, and such other documents and information as we have deemed necessary
or appropriate to enable us to render the opinions expressed below. We have not
undertaken any independent investigation to determine the accuracy of any such
facts. As used herein, "to our knowledge," or words of similar import mean the
actual knowledge, without independent investigation, of those lawyers in our
firm actually involved with the Registration Statement.
Based upon and subject to the foregoing and the statements contained
herein, we are of the opinion that:
1. When the Registration Statement and any required post-effective
amendments thereto and any and all Prospectus Supplement(s) required by
applicable laws have all become effective under the Securities Act, and upon
adoption by the Board of Directors of the Company of a resolution in form and
content as required by applicable law, and assuming that (i) the terms of the
shares of Common Stock are as described in the Registration Statement, the
Prospectus and the related Prospectus Supplement(s), (ii) at the time of
issuance of such shares of Common Stock, the number of shares of Common Stock
which the Company is authorized to issue in its Restated Certificate of
Incorporation, as amended, will exceed the sum of (A) the number of shares of
Common Stock outstanding, (B) the number of shares of Common Stock held as
treasury shares, and (C) the number of shares of Common Stock which the Company
is obligated to issue (or has otherwise reserved for issuance for any purposes),
by at least the number of such shares of Common Stock, (iii) adequate
January 7, 2003
Page 3
consideration for such shares of Common Stock has been paid to, and received by
the Company in the manner contemplated by the Registration Statement, the
Prospectus and the related Prospectus Supplement(s) and by such resolution, and
(iv) such shares of Common Stock, and the issuance thereof, comply with all
requirements and restrictions, if any, applicable to the Company, whether
imposed by any court or governmental or regulatory body having jurisdiction over
the Company, such shares of Common Stock (including any Common Stock duly issued
upon the exchange or conversion of Debt Securities, Warrants, and Preferred
Stock that are exchangeable or convertible into Common Stock) will be validly
issued, fully paid and nonassessable.
2. When the Registration Statement and any required post-effective
amendments thereto and any and all Prospectus Supplement(s) required by
applicable laws have all become effective under the Securities Act, and when the
powers, designations, preferences, and other rights and limitations of a series
of Preferred Stock has been duly established in accordance with the terms of the
Restated Certificate of Incorporation of the Company, as amended, and applicable
law, and upon adoption by the Board of Directors of the Company of a resolution
in form and content as required by applicable law, and assuming that (i) the
terms of such shares are as described in the Registration Statement, the
Prospectus and the related Prospectus Supplement(s), (ii) at the time of
issuance of such shares of Preferred Stock, the number of shares of Preferred
Stock which the Company is authorized to issue in its Restated Certificate of
Incorporation, as amended, will exceed the sum of (A) the number of shares of
Preferred Stock outstanding, (B) the number of shares of Preferred Stock held as
treasury shares, and (C) the number of shares of Preferred Stock which the
Company is obligated to issue (or has otherwise reserved for issuance for any
purposes), by at least the number of such shares of Preferred Stock, (iii)
adequate consideration for the shares of Preferred Stock has been paid to, and
received by the Company in the manner contemplated by the Registration
Statement, the Prospectus and the related Prospectus Supplement(s) and by such
resolution, and (iv) such shares, and the issuance thereof, comply with all
requirements and restrictions, if any, applicable to the Company, whether
imposed by any court or governmental or regulatory body having jurisdiction over
the Company, such shares of Preferred Stock (including any Preferred Stock duly
issued upon the exchange or conversion of Debt Securities, Warrants, and other
series of Preferred Stock that are exchangeable or convertible into Preferred
Stock) will be validly issued, fully paid and nonassessable.
3. When (a) the Warrant Agreement has been duly authorized, executed,
and delivered by the Company, (b) the specific terms of a particular issuance of
Warrants have been duly established by a Warrant Agreement in accordance with
applicable law (including, without limitation, the adoption by the Board of
Directors of the Company of a resolution duly authorizing the issuance and
delivery of the Warrants), duly authenticated by the Warrant Agent and duly
executed and delivered on behalf of the Company against payment therefor in
accordance with the terms and provisions of the Warrant Agreement and as
contemplated by the Registration Statement, the Prospectus and the related
Prospectus Supplement(s), and (c) the Registration Statement and any required
post-effective amendments thereto and any Prospectus Supplement(s) required by
applicable
January 7, 2003
Page 4
laws have all become effective under the Securities Act, and assuming (i) that
the terms of the Warrants as executed and delivered are as described in the
Registration Statement, the Prospectus and the related Prospectus Supplement(s),
(ii) that the Warrants as executed and delivered do not violate any law
applicable to the Company or result in a default under or breach of any
agreement or instrument binding upon the Company, and (iii) that the Warrants as
executed and delivered comply with all requirements and restrictions, if any,
applicable to the Company, whether imposed by any court or governmental or
regulatory body having jurisdiction over the Company, the Warrants will
constitute valid and binding obligations of the Company.
4. When (a) the Indenture has been duly authorized, executed, and
delivered by the Company, (b) the Debt Securities have been duly established in
accordance with the terms of the Indenture (including, without limitation, the
adoption by the Board of Directors of the Company of a resolution duly
authorizing the issuance and delivery of the Debt Securities), duly
authenticated by the Trustee and duly executed and delivered on behalf of the
Company against payment therefor in accordance with the terms and provisions of
the Indenture and as contemplated by the Registration Statement, the Prospectus
and the related Prospectus Supplement(s), and (c) the Registration Statement and
any required post-effective amendments thereto and any Prospectus Supplement(s)
required by applicable laws have all become effective under the Securities Act,
and assuming (i) that the terms of the Debt Securities as executed and delivered
are as described in the Registration Statement, the Prospectus and the related
Prospectus Supplement(s), (ii) that the Debt Securities as executed and
delivered do not violate any law applicable to the Company or result in a
default under or breach of any agreement or instrument binding upon the Company,
and (iii) that the Debt Securities as executed and delivered comply with all
requirements and restrictions, if any, applicable to the Company, whether
imposed by any court or governmental or regulatory body having jurisdiction over
the Company, the Debt Securities will constitute valid and legally binding
obligations of the Company.
5. When (a) the Indenture has been duly authorized, executed, and
delivered by the Company and the applicable Subsidiary Guarantor, (b) the
Guarantees have been duly authorized, executed and delivered on behalf of such
Subsidiary Guarantor and the related Debt Securities have been duly
authenticated by the Trustee and duly executed and delivered on behalf of the
Company against payment therefor in accordance with the terms and provisions of
the Indenture and as contemplated by the Registration Statement, the Prospectus
and the related Prospectus Supplement(s), and (c) the Registration Statement and
any required post-effective amendments thereto have all become effective under
the Securities Act, and assuming (i) that the terms of the Guarantees as
executed and delivered are as described in the Registration Statement, the
Prospectus and the related Prospectus Supplement(s), (ii) that the Guarantees as
executed and delivered do not violate any law applicable to the applicable
Subsidiary Guarantor or result in a default under or breach of any agreement or
instrument binding upon such Subsidiary Guarantor, (iii) that the Guarantees as
executed and delivered comply with all requirements and restrictions, if any,
applicable to such Subsidiary Guarantor, whether imposed by any court or
governmental or
January 7, 2003
Page 5
regulatory body having jurisdiction over such Subsidiary Guarantor, and (iv)
that the Guarantees are then issued as contemplated in the Registration
Statement, the Prospectus and the related Prospectus Supplement(s), the
Guarantees will constitute valid and legally binding obligations of the
applicable Subsidiary Guarantor.
The opinions set forth herein are subject to the following additional
qualifications, assumptions and exceptions:
1. the effect of bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights generally;
2. that the remedy of specific performance and injunctive and other
forms of equitable relief may be subject to general principles of
equity and the discretion of the court before which any proceeding
therefor may be brought (regardless of whether such enforceability
is considered in a proceeding in equity or at law);
3. provisions of the Debt Securities and Indenture may be
unenforceable where (i) the breach of such provisions imposes
restrictions or burdens upon the holders of the Debt Securities,
and it cannot be demonstrated that the enforcement of such
restrictions or burdens is reasonably necessary for the protection
of the obligee, (ii) the obligee's enforcement of such provisions
under the circumstances would violate the obligee's implied
covenant of good faith and fair dealing, (iii) the breach of such
provision is not a material breach of a material covenant or
provision, or (iv) enforcement thereof would violate public
policy;
4. the effect of statutes and rules of law which cannot be waived
prospectively by an obligor;
5. we express no opinion as to the usury laws of any jurisdiction;
6. we express no opinion as to the validity, legally binding nature
or enforceability of (i) any provision contained in the Warrant,
Warrant Agreement, Debt Securities, or the Indenture with respect
to indemnification or contribution to the extent the enforcement
thereof contravenes public policy, (ii) any provision contained in
the Warrant, Warrant Agreement, Debt Securities, or the Indenture
purporting to authorize the collection of attorneys' fees or the
expenses incurred by a party in enforcing its rights under such
Warrant, Warrant Agreement, Debt Securities, or Indenture, (iii)
any provision in the Warrant, Warrant Agreement, Debt Securities,
or the Indenture regarding choice of law or submission to
jurisdiction and related service of process and venue, and (iv)
any provision contained in the Warrant,
January 7, 2003
Page 6
Warrant Agreement, Debt Securities, or the Indenture relating to
waiver of remedies (or the delay or omission of enforcement
thereof) or liquidated damages); and
7. that the Warrants, Warrant Agreements, Debt Securities, Indenture,
and Guarantees shall be governed by the laws of the State of New
York.
We express no opinion with respect to whether acceleration of the Debt
Securities may affect the collectibility of that portion of the stated principal
amount thereof that might be determined to constitute unearned interest thereon.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement and to the reference to us under the heading "Legal
Matters" in the Prospectus and the Prospectus Supplements which form a part
thereof. In giving this consent, we do not admit that we are in the category of
persons whose consent is required under Section 7 of the Act or the rules and
regulations of the Securities and Exchange Commission promulgated thereunder.
We assume for purposes of this opinion that (i) each of the parties to
the Warrant Agreement, other than the Company, and the Trustee is duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization; (ii) the Trustee and Warrant Agent are duly
qualified to engage in the activities contemplated by the Indenture and Warrant
Agreement, respectively; (iii) the Indenture has been duly authorized, executed
and delivered by the Trustee and constitutes a legally valid and binding
obligation of the Trustee, enforceable against the Trustee in accordance with
its terms; (iv) the Warrant Agreement has been duly authorized, executed and
delivered by each of the parties to the Warrant Agreement (other than the
Company) and constitutes a legally valid and binding obligation of such parties,
enforceable against such parties in accordance with its terms;(v) the Trustee is
in compliance, generally and with respect to acting as Trustee under the
Indenture, with all applicable laws and regulations; (v) the Trustee and the
parties to the Warrant Agreement (other than the Company) each has the requisite
organizational and legal power and authority to perform its obligations under
the Indenture and Warrant Agreement, respectively; and (vi) the Trustee is
qualified under the Trust Indenture Act of 1939, as amended, and a Form T-1 will
be properly filed as an exhibit to the Registration Statement.
We are qualified to practice law in the State of New York and do not
purport to be experts on, or to express any opinion herein concerning any law,
other than the laws of the State of New York and the General Corporation Law of
the State of Delaware. In rendering the opinions expressed herein, we have
relied on matters relating to Indiana law on the opinion of Ice Miller, a copy
of which is attached hereto as Exhibit B, with respect to Alltrista Newco
Corporation, an Indiana corporation, Alltrista Plastics Corporation, an Indiana
corporation, Alltrista Zinc Products, L.P., an Indiana limited partnership, and
Hearthmark, Inc., an Indiana corporation. We express no opinion as to the
application of the securities or blue sky laws of the State of Indiana to the
issuance
January 7, 2003
Page 7
of the Debt Securities, the Guarantees, and the Common Stock.
This opinion letter is limited to the specific legal matters expressly
set forth herein, and no opinion is expressed or implied with respect to any
matter not expressly stated herein. This letter speaks only as of the date
hereof and is limited to present statutes, regulations and administrative and
judicial interpretations.
Very truly yours,
KANE KESSLER, P.C.
/s/ Jeffrey S. Tullman
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January 7, 2003
Page 8
EXHIBIT A
1. Alltrista Newco Corporation
2. Alltrista Plastics Corporation
3. Alltrista Zinc Products, L.P.
4. Hearthmark, Inc.
5. Quoin Corporation
6. Tilia, Inc.
7. Tilia Direct, Inc.
8. Tilia International, Inc.
EXHIBIT B
[ICE MILLER LETTERHEAD]
ONE AMERICAN SQUARE, BOX 82001
INDIANAPOLIS, IN 46282-0002
January 7, 2003
Jarden Corporation
555 Theodore Fremd Avenue
Rye, New York 10580
Kane Kessler, P.C.
1350 Avenue of the Americas
New York, New York 10019
Re: Registration Statement on Form S-3 of Jarden Corporation
--------------------------------------------------------
Ladies and Gentlemen:
We have acted as special Indiana counsel to Jarden Corporation, a
Delaware corporation formerly known as Alltrista Corporation (the "Company"),
and each of Alltrista Newco Corporation, an Indiana corporation, Alltrista
Plastics Corporation, an Indiana corporation, Alltrista Zinc Products, L.P., an
Indiana limited partnership, and Hearthmark, Inc., an Indiana corporation
(collectively, the "Indiana Guarantors" and individually an "Indiana
Guarantor"), in connection with the Registration Statement on Form S-3 (the
"Registration Statement") under the Securities Act of 1933, as amended, filed on
behalf of the Company and the Guarantors (as defined below) with the Securities
and Exchange Commission relating to the Company's offering of up to an aggregate
of $150 million of one or more series of debt securities (the "Debt
Securities"), which will be issued pursuant to an indenture (the "Indenture")
among the Company, the Guarantors (as defined in the Indenture), including the
Indiana Guarantors, and a trustee, and will be guaranteed by the Indiana
Guarantors and the other Guarantors. Capitalized terms not otherwise defined
herein shall have the respective meaning assigned to such terms in the
prospectus contained in the Registration Statement. The guarantees by the
Indiana Guarantors under the Indenture with respect to the Debt Securities are
collectively referred to herein as the "Guarantees."
Except as described in this letter, we are not generally familiar with
the Indiana Guarantors' businesses, records, transactions, or activities. Our
knowledge of their businesses,
Jarden Corporation
Kane Kessler, P.C.
January 7, 2003
Page 2
records, transactions, and activities is limited to the information that is set
forth below and on Exhibit A and that otherwise has been brought to our
attention by certificates executed and delivered to us by officers of the
Indiana Guarantors in connection with this opinion letter. We have examined
copies, certified or otherwise identified to our satisfaction, of the documents
listed in the attached Exhibit A, which is made a part hereof. For the purposes
of this opinion, the documents listed in Exhibit A are hereinafter referred to
collectively as the "Authorization Documents."
In rendering our opinion, we also have examined such certificates of
public officials, organizational documents and records and other certificates
and instruments as we have deemed necessary for the purposes of the opinion
herein expressed and, with your permission, have relied upon and assumed the
accuracy of such certificates, documents, records and instruments. We have made
such examination of the laws of the State of Indiana as we deemed relevant for
purposes of this opinion, but we have not made a review of, and express no
opinion concerning, the laws of any jurisdiction other than the State of
Indiana.
We have relied upon and assumed the truth and accuracy of the
representations, certifications and warranties made in the Authorization
Documents, and have not made any independent investigation or verification of
any factual matters stated or represented therein. Whenever our opinion or
confirmation herein with respect to the existence or absence of facts is
indicated to be based upon our knowledge or belief, it is intended to signify
that, during the course of our representation of the Indiana Guarantors, no
information has come to the attention of the attorneys who participated in the
representation which would give us actual knowledge of the existence or absence
of such facts. Except to the extent expressly set forth herein, we have not
undertaken any independent investigation to determine the existence or absence
of such facts or circumstances or the assumed facts set forth herein, we accept
no responsibility to make any such investigation, and no inference as to our
knowledge of the existence or absence of such facts or circumstances or of our
having made any independent review thereof should be drawn from our
representation of the Indiana Guarantors. Our representation of the Indiana
Guarantors is limited to the transactions contemplated by the Registration
Statement and other matters specifically referred to us by the Indiana
Guarantors.
In rendering this opinion letter to you, we have assumed with your
permission:
(a) The genuineness of all signatures, the authenticity of all
documents submitted to us as originals, the conformity to original
documents of all documents submitted to us as certified, conformed or
photostatic copies, and the authenticity of the originals of such
copies.
(b) The respective factual representations, statements and warranties
of the Indiana Guarantors in the Guarantees and the Authorization
Documents, and in the other
Jarden Corporation
Kane Kessler, P.C.
January 7, 2003
Page 3
documents that we have reviewed, and upon which we have relied, are
accurate, complete and truthful.
(c) All official public records (including their proper indexing and
filing) furnished to or obtained by us, electronically or otherwise,
are accurate, complete and authentic.
(d) The corporate records or other organizational records of each
Indiana Guarantor provided to us are accurate and complete.
(e) The financial condition of the Indiana Guarantors at all relevant
times will be such as will permit the authorization, execution and
performance of the Guarantees under Ind. Code 23-1-28.
Based on the foregoing and upon such investigation as we have deemed
necessary, and subject to the assumptions, qualifications, exceptions and
limitations set forth herein, we are of the opinion that:
1. Each of Hearthmark, Inc., Alltrista Plastics Corporation, and
Alltrista Newco Corporation is a corporation incorporated and validly existing
under the law of the State of Indiana, for which the most recent required
biennial report has been filed with the Indiana Secretary of State and no
Articles of Dissolution appear as filed in the Indiana Secretary of State's
records. Alltrista Zinc Products, L.P. is a limited partnership validly existing
under the law of the State of Indiana for which no certificate of cancellation
appears as filed in the Secretary of State's records.
2. Each Indiana Guarantor, other than Alltrista Zinc Products, L.P.,
has all requisite corporate power and corporate authority under Indiana law to
own and operate its properties and carry on its business as now conducted and to
perform its obligations under the Guarantees. Alltrista Zinc Products, L.P. has
all requisite limited partnership power and limited partnership authority under
Indiana law to own and operate its properties and carry on its business as now
conducted and to perform its obligations under its Guarantee.
3. The performance of each Indiana Guarantor's obligations under the
Guarantees has been duly authorized by all requisite corporate or limited
partnership action on the part of such Indiana Guarantor.
The opinions expressed herein are matters of professional judgment, are
not a guarantee of result and are effective only as of the date hereof. We do
not undertake to advise you of any matter within the scope of this letter than
comes to our attention after the date of this letter and disclaim any
responsibility to advise you of any future changes in law or fact that may
affect the opinions set forth herein. We express no opinion other than as
hereinbefore expressly set forth.
Jarden Corporation
Kane Kessler, P.C.
January 7, 2003
Page 4
No expansion of the opinions expressed herein may or should be made by
implication or otherwise.
We are informed that you are relying on this opinion letter in
connection with Kane Kessler, P.C.'s opinion letter to the Company and the
Company's offering pursuant to the Registration Statement. The foregoing opinion
shall not be relied upon for any other purpose.
Very truly yours,
/s/ Ice Miller
EXHIBIT A
LIST OF DOCUMENTS REVIEWED
--------------------------
1. Certificate of Existence for each of the Indiana Guarantors issued by the
Indiana Secretary of State, each dated January 7, 2003.
2. Articles of Incorporation of each Indiana Guarantor other than Alltrista
Zinc Products, L.P., as certified by the Indiana Secretary of State on
April 15, 2002, to be a true and complete copy of the Articles of
Incorporation of such Indiana Guarantor, as amended, and as further
certified by an authorized officer of such Indiana Guarantor as of January
7, 2003, to be a true, current and complete copy thereof.
3. Bylaws of each Indiana Guarantor other than Alltrista Zinc Products, L.P.,
as certified by an authorized officer of such Indiana Guarantor as of
January 7, 2003, to be a true and complete copy of the Bylaws of such
Indiana Guarantor.
4. Certificate of Limited Partnership of Alltrista Zinc Products, L.P., as
certified by the Indiana Secretary of State on April 15, 2002, to be a true
and complete copy of the Certificate of Limited Partnership of Alltrista
Zinc Products, L.P., as amended, and as further certified by an authorized
officer of Alltrista Zinc Products, L.P. as of January 7, 2003, to be a
true and complete copy thereof.
5. Partnership Agreement of Alltrista Zinc Products, L.P., as certified by an
authorized officer of Alltrista Zinc Products, L.P. as of January 7, 2003,
to be a true and complete copy of the Partnership Agreement of Alltrista
Zinc Products, L.P.
6. Resolutions of the Board of Directors of each Indiana Guarantor other than
Alltrista Zinc Products, L.P., as certified by an authorized officer of
such Indiana Guarantor as of January 7, 2003.
7. Resolutions of the partners of Alltrista Zinc Products, L.P., as certified
by an authorized officer of Alltrista Zinc Products, L.P. as of January 7,
2003.
8. Officers' Certificate of the Indiana Guarantors dated January 7, 2003, as
to certain factual matters.