REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "AGREEMENT") is entered into
as of September 2, 2003 by and between Jarden Corporation, a Delaware
corporation ("JARDEN"), and American Manufacturing Company, Inc., a Pennsylvania
corporation ("AMC" ).
WHEREAS, pursuant to a Stock Purchase Agreement dated August 15, 2003
(the "PURCHASE AGREEMENT") by and among Jarden, Lehigh Consumer Products
Corporation, a Pennsylvania corporation ("LEHIGH"), and AMC, on the date hereof
Jarden acquired all of the outstanding capital stock of Lehigh from AMC;
WHEREAS, pursuant to Section 2.2 of the Purchase Agreement, Jarden may
issue shares of its common stock, $.01 par value per share ("JARDEN COMMON
STOCK"), to AMC (and its assignees and designees) if Lehigh satisfies certain
post-closing earn-out targets; and
WHEREAS, Jarden and AMC have agreed to enter into this Agreement (the
execution of this Agreement by Jarden and AMC being a condition to the closing
of the transactions contemplated by the Purchase Agreement) providing for the
registration of the shares of Jarden Common Stock that may be issued to AMC (and
its assignees and designees) pursuant to the Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing recitals and for good
and other valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto, intending to be legally bound, hereby agree as
follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 DEFINITIONS. The following terms, as used herein, shall
have the following meanings:
"HOLDER" and "HOLDERS" means AMC, any assignee or designee of
AMC's rights to receive Jarden Common Stock pursuant to Section 2.2 of the
Purchase Agreement and any Lehigh Manager to whom AMC assigns Jarden Common
Stock received pursuant to Section 2.2 of the Purchase Agreement following the
issuance thereof; provided that any such assignee, designee or Lehigh Manager
execute a joinder to this Agreement in accordance with Section 5.9 hereof.
"LEHIGH MANAGERS" means the individuals that have entered into
Executive Agreements with AMC pursuant to which such individuals are granted the
right to receive a portion of the Jarden Common Stock issued or issuable to AMC
pursuant to Section 2.2 of the Purchase Agreement.
"NYSE" means the New York Stock Exchange.
"PERSON" means an individual, a partnership, a corporation, a
limited liability company, an association, a joint stock company, a business or
other trust, a joint venture, any other business entity or an unincorporated
organization.
"PROSPECTUS" means the prospectus included in the Shelf
Registration Statement, as amended or supplemented by any prospectus supplement,
with respect to the terms of the offering of any portion of the Registrable
Securities covered by the Shelf Registration Statement, and all other amendments
and supplements to the Prospectus, including post-effective amendments and all
material incorporated by reference or deemed to be incorporated by reference in
the Prospectus.
"REGISTRABLE SECURITIES" means (i) the shares of Jarden Common
Stock issued to the Holders pursuant to Section 2.2 of the Purchase Agreement,
(ii) any shares of Jarden Common Stock issued to the Holders pursuant to Section
2.1(c)(ii) hereof, and (iii) any shares of Jarden Common Stock issued with
respect to the shares described in clauses (i) and (ii) above as a result of
stock splits, stock dividends, reclassifications, recapitalizations or similar
events; provided that such shares of Jarden Common Stock shall cease to be
Registrable Securities (x) when such shares have been sold or otherwise
transferred by the Holders pursuant to an effective registration statement under
the Securities Act of 1933, as amended (the "1933 ACT"), or (y) when such shares
have been sold or otherwise transferred by the Holders in a private transaction
in which the transferor's rights under this Agreement are not assigned, or (z)
when all Registrable Securities issued to AMC may be sold without restriction by
AMC pursuant to Rule 144(k) under the 1933 Act (such determination to be made
either by counsel selected by AMC or by the delivery of a "no-action letter" by
the Commission specifically addressing the resale by AMC of the Registrable
Securities pursuant to Rule 144(k)).
"STOCK ISSUANCE CLOSING DATE" means the date upon which the
shares of Jarden Common Stock are issued to the Holders pursuant to Section 2.2
of the Purchase Agreement.
SECTION 1.2 CONSTRUCTION. Whenever the context requires, the gender of
any word used in this Agreement includes the masculine, feminine or neuter, and
the number of any word includes the singular or plural. Unless the context
otherwise requires, all references to articles, sections and paragraphs refer to
articles, sections and paragraphs of this Agreement, and the terms "hereof,"
"herein" and other like terms refer to this Agreement as a whole.
SECTION 1.3 HEADINGS. The headings and subheadings in this Agreement
are included for convenience and identification only and are in no way intended
to describe, interpret, define or limit the scope, extent or intent of this
Agreement or any provision hereof.
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ARTICLE II
REGISTRATION RIGHTS
SECTION 2.1 SHELF REGISTRATION.
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(a) Unless Jarden delivers to the Holders a written instrument
satisfactory in form and substance to AMC that Jarden waives its rights to
deliver Jarden Common Stock to the Holders pursuant to Section 2.2 of the
Purchase Agreement, Jarden shall, by January 15, 2006, prepare and file with the
Securities and Exchange Commission (the "COMMISSION") a registration statement
on Form S-3 or any successor form thereto (as amended and supplemented from time
to time, the "SHELF REGISTRATION STATEMENT") with respect to the resale of the
Registrable Securities by the Holders in accordance with Rule 415 under the 1933
Act.
(b) Jarden will use its best efforts to cause the Shelf Registration
Statement to be declared effective (i) on or prior to the Stock Issuance Closing
Date (the "FIRST REGISTRATION DATE") or (ii) if Jarden is unable to cause the
Shelf Registration Statement to be declared effective on or prior to the Stock
Issuance Closing Date after using its best efforts and Jarden is permitted to
issue the Jarden Common Stock to the Holders in accordance with Section
2.2(f)(iii) of the Purchase Agreement instead of cash, no later than six (6)
months following the Stock Issuance Closing Date (such effective date, the
"SECOND REGISTRATION DATE"), and Jarden will notify the Holders in writing of
the First Registration Date or the Second Registration Date, as applicable, at
least five (5) Business Days prior to its good faith estimate of such date.
Except as provided in Section 3.4 hereof, Jarden will use its best efforts to
keep such Shelf Registration Statement continuously effective and in compliance
with the 1933 Act and usable for resale of the Registrable Securities until the
earlier of (x) the second anniversary of the Stock Issuance Closing Date (or, if
Jarden Common Stock is issued pursuant to Section 2.1(c)(ii) hereof, the second
anniversary of the issuance date with respect to such Jarden Common Stock) and
(y) the date on which all shares of Jarden Common Stock cease to be Registrable
Securities (such period being called the "SHELF REGISTRATION PERIOD").
(c) If the Shelf Registration Statement is not declared effective by
the Commission by the First Registration Date and Jarden is permitted to issue
Jarden Common Stock to the Holders pursuant to Section 2.2(f)(iii) of the
Purchase Agreement, Jarden shall make payments to the Holders as follows (which
shall be the Holders' exclusive remedy under this Agreement with respect to any
delay in the effectiveness of the Shelf Registration Statement beyond the First
Registration Date):
(i) For the period from the Stock Issuance Closing Date through
the Second Registration Date, Jarden shall pay to each Holder interest at the
annual rate of eight percent (8%) (calculated on the basis of a year of 365
days) based upon the Initial Average Market Price, multiplied by the number of
Registrable Securities issued to such Holder (the "INTEREST AMOUNT"). For
purposes of this Agreement, the "INITIAL AVERAGE MARKET PRICE" shall be equal to
the average of the closing prices for a share of Jarden Common Stock on the NYSE
during the ten (10) consecutive trading days ending two business days prior to
the Stock Issuance Closing Date.
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(ii) On the Second Registration Date, Jarden shall pay the
Interest Amount and such amount shall be paid, at Jarden's option, in cash
and/or in Jarden Common Stock (based upon the Final Average Market Price). Any
Jarden Common Stock issued pursuant to this Section 2.1(c)(ii) shall be deemed
to be "Registrable Securities" hereunder and shall be included in the Shelf
Registration Statement as of the date of issuance of such Jarden Common Stock.
For purposes of this Agreement, the "FINAL AVERAGE MARKET PRICE" shall be equal
to the average of the closing prices for a share of Jarden Common Stock on the
NYSE during the ten (10) consecutive trading days ending two business days prior
to the Second Registration Date.
(d) If at any time within sixty (60) days following the First
Registration Date or the Second Registration Date a Sales Blackout Period is
commenced under Section 3.4 hereof, Jarden shall make payments to the Holders as
follows:
(i) For the period from the first day of such Sales Blackout
Period (the "BLACKOUT PERIOD COMMENCEMENT Date") through the last day of such
Sales Blackout Period (the "BLACKOUT PERIOD TERMINATION DATE"), Jarden shall pay
to each Holder interest at the annual rate of eight percent (8%) (calculated on
the basis of a year of 365 days) based upon the Initial Average Market Price
(or, as applicable, the Final Average Market Price with respect to any shares of
Jarden Common Stock issued on the Second Registration Date in accordance with
Section 2.1(c)(ii)), multiplied by the number of Registrable Securities held by
such Holder on the Blackout Period Commencement Date (the "BLACKOUT PERIOD
INTEREST AMOUNT").
(ii) Jarden shall pay the Blackout Period Interest Amount to each
Holder within five (5) business days of the Blackout Period Termination Date,
any such payment to be made by wire transfer of immediately available funds to
an account specified in writing by such Holder.
ARTICLE III
REGISTRATION PROCEDURES
SECTION 3.1 FILINGS; INFORMATION.
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(a) In connection with the Shelf Registration Statement filed pursuant
to Section 2.1 hereof, Jarden shall:
(i) at least three (3) days prior to filing the Shelf
Registration Statement, the Prospectus or any amendments or supplements thereto,
furnish to each Holder copies thereof without charge so as to permit such Holder
to comment on the information provided by such Holder for inclusion in the Shelf
Registration Statement, the Prospectus or any amendments or supplements thereto;
(ii) subject to Section 3.4 hereof, prepare and file with the
Commission such amendments and supplements to the Shelf Registration Statement
and the Prospectus as may be necessary to keep the Shelf Registration Statement
effective during the Shelf Registration Period and to enable the Registrable
Securities to be sold under the Shelf Registration Statement
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by the Holders in accordance with the intended method or methods of disposition
described in the Shelf Registration Statement;
(iii) furnish to each Holder, without charge, such number of
conformed copies of the Shelf Registration Statement and of each amendment and
supplement thereto (in each case including all exhibits), such number of copies
of the Prospectus (including each preliminary prospectus), and such documents
incorporated by reference in the Shelf Registration Statement or the Prospectus
as such Holder may reasonably request in order to facilitate the disposition of
the Registrable Securities; and Jarden hereby consents (except as otherwise
provided in Sections 3.1(b)(ii) or 3.4 hereof) to the use of the Prospectus or
any amendment or supplement thereto in accordance with applicable law by the
Holders, in each case in the form most recently provided by Jarden, during the
Shelf Registration Period in connection with the offering and sale of the
Registrable Securities covered by the Prospectus or any amendment or supplement
thereto in accordance with applicable law;
(iv) use its commercially reasonable efforts to register or
qualify all Registrable Securities covered by the Shelf Registration Statement
under the securities or blue sky laws of such jurisdictions as the Holders shall
request, to keep such registration or qualification in effect for the Shelf
Registration Period, and to take any other reasonable action which may be
necessary to enable the Registrable Securities to be sold under the Shelf
Registration Statement in such jurisdictions; provided, that Jarden shall not be
required to (A) qualify generally to do business as a foreign corporation in any
such jurisdiction wherein it is not so qualified, (B) consent to general service
of process in any such jurisdiction or (C) subject itself to taxation in any
jurisdiction where it would not otherwise be liable for such taxes;
(v) promptly notify each Holder in writing during the Shelf
Registration Period (A) of the happening of any event as a result of which the
Prospectus included in the Shelf Registration Statement, as then in effect,
includes as to Jarden an untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, and promptly prepare and furnish to the Holders a
reasonable number of copies of a supplement to or an amendment of the Prospectus
as may be necessary so that, as thereafter delivered to the purchasers of such
Registrable Securities, the Prospectus shall not include an untrue statement of
a material fact or omit to state a material fact required to be stated therein
or necessary to make the statements therein, in light of the circumstances under
which they are made, not misleading, (B) of the issuance by the Commission of
any stop order suspending the effectiveness of the Shelf Registration Statement
or the initiation or threatening of any proceedings for that purpose, and (C) of
the receipt by Jarden of any notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any jurisdiction or the
initiation or threat of any proceeding for such purpose;
(vi) use its commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of the Shelf Registration
Statement or any post-effective amendment thereto or any order suspending or
preventing the use of any Prospectus or suspending the qualification of any
Registrable Securities for sale in any jurisdiction, in each case as promptly as
practicable;
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(vii) comply in all material respects with the provisions of the
1933 Act applicable to Jarden with respect to the disposition of all of the
Registrable Securities covered by the Shelf Registration Statement in accordance
with the intended method or methods of disposition by the Holders; and
(viii) use its commercially reasonable efforts to list (prior to
the effective date of the Shelf Registration Statement, if necessary) all
Registrable Securities covered by the Shelf Registration Statement, to the
extent they are not already so listed, on the NYSE, or if Jarden Common Stock is
not traded on the NYSE, the principal exchange on which Jarden Common Stock is
traded.
(b) In connection with the Shelf Registration Statement filed pursuant
to Section 2.1 hereof, each Holder shall:
(i) upon receipt of any notice from Jarden in accordance with
Section 3.1(a)(v) hereof (but, with respect to clause (C) thereof, only with
respect to the jurisdiction suspending qualification), immediately discontinue
the offer and sale of Registrable Securities pursuant to the Prospectus until
receipt by the Holders of copies of an amended or supplemented Prospectus or
until Jarden notifies the Holders in writing that the applicable suspension has
been removed; and, if so directed by Jarden, the Holders will deliver to Jarden
all copies, other than permanent file copies then in the Holders' possession, of
the most recent Prospectus at the time of receipt of such notice;
(ii) cooperate with Jarden in connection with the preparation and
filing of any Shelf Registration Statement and, upon written request from
Jarden, each Holder shall promptly furnish in writing to Jarden such information
regarding such Holder, the distribution of the Registrable Securities and other
matters as may be required by applicable law, rule or regulation for inclusion
in the Shelf Registration Statement (or any amendment or supplement thereto), it
being agreed that the provision of such information by such Holder to Jarden
shall be a condition precedent to Jarden's obligations under Sections 2.1 and
3.1 hereof with respect to the Registrable Securities held by such Holder;
(iii) not during the Shelf Registration Period (A) effect any
stabilization transactions or engage in any stabilization activity in connection
with Jarden Common Stock or other equity securities of Jarden in contravention
of Regulation M under the Securities Exchange Act of 1934, as amended (the "1934
ACT"), or (B) permit any "Affiliated Purchaser" (as that term is defined in
Regulation M under the 1934 Act) to bid for or purchase for any account in which
such Holder has a beneficial interest, or attempt to induce any other Person to
purchase, any shares of Jarden Common Stock or other equity securities of Jarden
in contravention of Regulation M under the 1934 Act; and
(iv) (A) offer to sell, sell or otherwise distribute the
Registrable Securities in reliance upon the Shelf Registration Statement only
after the Shelf Registration Statement has been declared effective under the
1933 Act, (B) distribute the Registrable Securities only in accordance with the
manner of distribution contemplated by the Prospectus,
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and (C) report to Jarden in writing when such Holder no longer holds any
Registrable Securities.
(c) Except as otherwise expressly provided herein, Jarden shall not be
required to take any action or enter into any agreement with any Holder or any
third party for or on behalf of any Holder in connection with the disposition of
Registrable Securities (including, without limitation, underwriting agreements).
SECTION 3.2 REGISTRATION EXPENSES. In connection with the Shelf
Registration Statement, Jarden shall pay the following expenses incurred in
connection with such registration: (i) registration and filing fees and expenses
associated with filings required by the Commission and the NYSE, (ii) fees and
expenses of compliance with federal or state securities or blue sky laws
(including fees and disbursements of counsel for Jarden in connection with blue
sky qualifications of the Registrable Securities), (iii) printing, messenger and
delivery expenses, (iv) fees and expenses incurred in connection with the
listing of the Registrable Securities in accordance with Section 3.1(a)(vii),
(v) fees and expenses of counsel and independent certified public accountants
for Jarden and (vi) the reasonable fees and expenses of any additional experts
retained by Jarden in connection with such registration. In addition, Jarden
shall reimburse the Holders for the reasonable fees and expenses of one counsel
for all of the Holders incurred in connection with the Holders' cooperation with
Jarden in the preparation and filing of the Shelf Registration Statement
(regardless of whether such Shelf Registration Statement is declared
effective)..
SECTION 3.3 TERMINATION. This Agreement shall terminate and be of no
further force or effect upon the first to occur of the following events (a) upon
delivery by Jarden to the Holders of a written instrument satisfactory in form
and substance to AMC that Jarden irrevocably waives its rights to deliver Jarden
Common Stock to the Holders pursuant to Section 2.2 of the Purchase Agreement,
(b) immediately following the consummation of the Contingent Consideration
Closing Date (as defined in the Purchase Agreement) in which no shares of Jarden
Common Stock are issued to the Holders, and (c) the expiration of the Shelf
Registration Period; provided, however, that in the event this Agreement is
terminated pursuant to Section 3.3(c), the provisions of Article IV hereof shall
survive such termination.
SECTION 3.4 INFORMATION BLACKOUT.
(a) At any time when the Shelf Registration Statement is effective,
upon written notice from Jarden to the Holders that the Board of Directors of
Jarden, after consultation with counsel, has determined in good faith that the
sale of Registrable Securities pursuant to the Shelf Registration Statement
would significantly interfere with any material pending or contemplated
financing, merger, sale or acquisition of assets, recapitalization or other
material corporate action of Jarden, or would require Jarden to disclose any
material non-public information that has not theretofore been disclosed and
which disclosure would have a material adverse effect on Jarden, and it is
therefore essential to suspend sales of Registrable Securities pursuant to the
Shelf Registration Statement, Jarden's obligations under Section 3.1(a)(ii)
hereof shall be suspended until the earlier of (i) sixty (60) days after Jarden
notifies the Holders of such good faith determination, or (ii) such time as
Jarden notifies the Holders that such material
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information has been disclosed to the public or has ceased to be material or
that sales pursuant to the Shelf Registration Statement may otherwise be
resumed, such notification to be made promptly after Jarden has determined
reasonably and in good faith that such material information has been disclosed
to the public or has ceased to be material or that sales pursuant to the Shelf
Registration Statement may otherwise be resumed (the number of days from such
suspension of sales by the Holders until the day when such sales may be resumed
hereunder is hereinafter called a "SALES BLACKOUT PERIOD"). The Holders shall
suspend sales of the Registrable Securities pursuant to the Shelf Registration
Statement during any Sales Blackout Period.
(b) Jarden shall use its best efforts not to commence a Sales Blackout
Period within sixty (60) days after (i) the First Registration Date or the
Second Registration Date, as applicable, or (ii) the end of a Sales Blackout
Period. Jarden shall not be permitted to commence more than three (3) Sales
Blackout Periods during the Shelf Registration Period.
(c) No Sales Blackout Period shall preclude any sales of Registrable
Securities that any Holder may effect in compliance with Rule 144; provided that
such Holder otherwise conforms with the requirements under the 1933 Act and the
1934 Act.
(d) Each Holder agrees that, upon receipt of any notice from Jarden
pursuant to this Section 3.4, such Holder will (i) keep confidential such
notice, its content and any information provided by Jarden in connection
therewith, and (ii) if so directed by Jarden, deliver to Jarden all copies then
in such Holder's possession, other than permanent file copies, of the Prospectus
relating to such Registrable Securities current at the time of receipt of such
notice.
ARTICLE IV
INDEMNIFICATION AND CONTRIBUTION
SECTION 4.1 INDEMNIFICATION BY JARDEN. Jarden agrees to indemnify and
hold harmless each Holder and each Person, if any, who controls such Holder
within the meaning of either Section 15 of the 1933 Act or Section 20 of the
1934 Act (each, an "indemnified party," as applicable) from and against any and
all losses, claims, damages and liabilities, joint or several (including,
without limitation, any legal or other expenses reasonably incurred in
connection with defending or investigating any such action or claim, whether
commenced or threatened, except as otherwise provided in Section 4.3 hereof),
insofar as such losses, claims, damages or liabilities are caused by (i) any
untrue statement or alleged untrue statement of a material fact contained in the
Shelf Registration Statement or the Prospectus contained therein, or any
amendment or supplement thereto, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein (in light of the circumstances under which they were made)
not misleading, or (ii) any violation by Jarden of the 1933 Act, the 1934 Act,
any state securities law or any rule or regulation promulgated under the 1933
Act, the 1934 Act or any state securities law in connection with the offering
covered by the Shelf Registration Statement; provided, however, that Jarden
shall not be liable insofar as such losses, claims, damages or liabilities are
caused by (1) any such untrue statement or omission or alleged untrue statement
or omission (a) made in reliance upon and in conformity with written information
furnished to Jarden by any indemnified party for use in the Shelf Registration
Statement or the Prospectus (or any amendment or supplement thereto) or the plan
of distribution
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furnished in writing to Jarden by or on behalf of such indemnified party
expressly for use therein, or (b) that was corrected in an amendment or
supplement to the Shelf Registration Statement or the Prospectus and Jarden had
furnished copies thereof to each Holder prior to the relevant date of sale by
the Holder to the Person asserting such loss, claim, damage or liability or (2)
the breach by any Holder of the provisions of Section 3.1(b)(i) hereof.
SECTION 4.2 INDEMNIFICATION BY THE HOLDERS. Each Holder severally and
not jointly agrees to indemnify and hold harmless Jarden and each Person, if
any, who controls Jarden within the meaning of either Section 15 of the 1933 Act
or Section 20 of the 1934 Act, and any other holder of Registrable Securities
selling securities under such Shelf Registration Statement (each, an
"indemnified party," as applicable), from and against any and all losses,
claims, damages and liabilities, joint or several (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim, except as otherwise
provided in Section 4.3 hereof), insofar as such losses, claims, damages or
liabilities are caused by (i) any untrue statement or alleged untrue statement
of a material fact contained in the Shelf Registration Statement or the
Prospectus contained therein, or any amendment or supplement thereto, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein (in light of the
circumstances under which they were made) not misleading, but only with
reference to information furnished in writing by or on behalf of such Holder
expressly for use in the Shelf Registration Statement or the Prospectus or any
amendments or supplements thereto, or (ii) any violation by such Holder of the
1933 Act, the 1934 Act, any state securities law or any rule or regulation
promulgated under the 1933 Act, the 1934 Act or any state securities law in
connection with the offering covered by the Shelf Registration Statement.
SECTION 4.3 CONDUCT OF INDEMNIFICATION PROCEEDINGS. Each party
indemnified under Sections 4.1 or 4.2 above shall, promptly after receipt of
notice of a claim or action against such indemnified party in respect of which
indemnity may be sought hereunder, notify the indemnifying party in writing of
the claim or action; provided, that the failure to notify the indemnifying party
shall not relieve it from any liability that it may have to an indemnified party
on account of the indemnity agreement contained in Sections 4.1 or 4.2 above
except to the extent that the indemnifying party was actually prejudiced by such
failure. If any such claim or action shall be brought against an indemnified
party, and it shall have notified the indemnifying party thereof, unless in the
indemnifying party's reasonable judgment a conflict of interest between such
indemnified party and indemnifying party may exist in respect of such claim, the
indemnifying party shall be entitled to participate therein, and, to the extent
that it wishes to assume the defense thereof (with counsel that has been
approved by the indemnified party (which approval shall not be unreasonably
withheld, conditioned or delayed)). After notice from the indemnifying party to
the indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party for
any legal or other expenses subsequently incurred by the indemnified party in
connection with the defense thereof; provided, however, that the indemnifying
party shall pay such expense, to the extent reasonable, if representation of
such indemnified party by counsel retained by the indemnifying party would be
reasonably likely to result in a conflict of interest between the indemnified
party and the indemnifying party. Any indemnifying party against whom indemnity
may be sought under
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Sections 4.1 or 4.2 shall not be liable to indemnify an indemnified party if
such indemnified party settles such claim or action without the written consent
of the indemnifying party. No indemnifying party shall consent to the entry of
any judgment or enter into any settlement without the consent of the indemnified
party which does not include as an unconditional term thereof the giving by the
claimant or plaintiff to such indemnified party a release from all liabilities
in respect of such claim or litigation and no indemnifying party may agree to
any settlement of any such claim or action, other than solely for monetary
damages for which the indemnifying party shall be responsible hereunder, the
result of which shall be applied to or against the indemnified party, without
the prior written consent of the indemnified party, which consent shall not be
unreasonably withheld, delayed or conditioned. In any action hereunder as to
which the indemnifying party has assumed the defense thereof, the indemnified
party shall continue to be entitled to participate in, but not control, the
defense thereof, with counsel of its own choice, but, except as otherwise
provided in the third sentence of this Section 4.3, the indemnifying party shall
not be obligated hereunder to reimburse the indemnified party for the costs
thereof.
SECTION 4.4 LIMITATION ON INDEMNITY.
(a) The indemnity provided for hereunder shall not inure to the benefit
of any indemnified party to the extent that the claim is based on such
indemnified party's failure to comply with the applicable prospectus delivery
requirements of the 1933 Act as then applicable to the Person asserting the
loss, claim, damage or liability for which indemnity is sought.
(b) In no event shall the liability of any Holder under this Article
IV, whether for indemnification or contribution, exceed the net proceeds
received by the Holder from the sale of Registrable Securities pursuant to the
Shelf Registration Statement.
SECTION 4.5 CONTRIBUTION. If the indemnification provided for in this
Article IV is held by a court of competent jurisdiction to be unavailable to or
insufficient to hold harmless an indemnified party in respect of any losses,
claims, damages or liabilities referred to herein, then in lieu of such
indemnification the indemnifying party shall, to the extent permitted by
applicable law, contribute to the aggregate losses, liabilities, claims, damages
and expenses of the nature contemplated by such indemnity in such proportion as
is appropriate to reflect the relative fault of the indemnifying party, on the
one hand, and the indemnified party, on the other hand, in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations. The
relative fault of the indemnifying party and the indemnified party shall be
determined by reference to, among other things, whether any such untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact relates to information supplied by the indemnifying party
on one hand or by or on behalf of the indemnified party on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission.
Jarden and the Holders agree that it would not be just and equitable if
contribution pursuant to this Section 4.5 were determined by pro rata allocation
or by any other method of allocation that does not take account of the equitable
considerations referred to in the
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immediately preceding paragraph. The amount paid or payable by an indemnified
party as a result of the losses, claims, damages or liabilities referred to in
the immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, any legal or other expenses reasonably incurred by
such indemnified party in connection with investigating or defending any such
action or claim. No Person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the 1933 Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation. Neither
Jarden nor any of the Holders shall be liable for contribution with respect to
any action, suit, proceeding or claim settled without its prior written consent,
which consent shall not be unreasonably withheld, conditioned or delayed.
ARTICLE V
MISCELLANEOUS
SECTION 5.1 RULE 144. Jarden covenants that it shall timely file any
reports required to be filed by it under the 1934 Act and shall at all times
comply with the requirements under Rule 144(c) under the 1933 Act, as such rule
may be amended from time to time, and take such further action as any Holder may
reasonably request to the extent required from time to time to enable such
Holder to sell Registrable Securities without registration under the 1933 Act
within the limitations of the exemptions provided by Rule 144 under the 1933
Act, as such Rule may be amended from time to time, or any similar rule or
regulation hereafter adopted by the Commission, including, but not limited to,
furnishing an opinion of counsel to Jarden's transfer agent (if requested by
such transfer agent) as to the transferability of such Registrable Securities
and removal of any legends from the certificates representing the Registrable
Securities so transferred.
SECTION 5.2 EXPENSES. Except to the extent otherwise expressly provided
in Section 3.2 hereof, each party shall pay its own expenses incident to the
transactions contemplated hereby.
SECTION 5.3 GOVERNING LAW. This Agreement shall be construed in
accordance with and governed exclusively by the laws of the State of Delaware
(without giving effect to any conflicts or choice of law provisions that would
cause the application of the domestic substantive laws of any other
jurisdiction).
SECTION 5.4 WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
VOLUNTARILY AND IRREVOCABLY WAIVES TRIAL BY JURY IN ANY ACTION OR OTHER
PROCEEDING BROUGHT IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY.
SECTION 5.5 CONSENT TO EXCLUSIVE JURISDICTION OF THE COURTS OF
DELAWARE.
(a) Each of the parties hereto hereby consents to the exclusive
jurisdiction of the courts of the State of Delaware and the United States
District Court for the District of Delaware, as well as to the jurisdiction of
all courts to which an appeal may be taken from such courts, for the purpose of
any suit, action or other proceeding arising out of or in connection with this
Agreement or any of the transactions contemplated hereby, including, without
limitation, any
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proceeding relating to ancillary measures in aid of arbitration, provisional
remedies and interim relief, or any proceeding to enforce any arbitral decision
or award.
(b) Each of the parties hereto hereby expressly waives any and all
rights to bring any suit, action or other proceeding in or before any court or
tribunal other than the courts of the State of Delaware and the United States
District Court for the District of Delaware and covenants that such party shall
not seek in any manner to resolve any dispute other than as set forth herein or
to challenge or set aside any decision, award or judgment obtained in accordance
with the provisions hereof.
(c) Each of the parties hereto hereby expressly waives any and all
objections such party may have to venue in any of such courts, including,
without limitation, the inconvenience of such forum. In addition, each of the
parties hereto hereby consents to the service of process by personal service or
any manner in which notices may be delivered hereunder in accordance with
Section 5.6 and will not object to service of process before any of such courts
to the extent so delivered.
SECTION 5.6 NOTICES. All demands, notices, requests, consents and other
communications required or permitted under this Agreement shall be by written
notice and sent by (a) personal delivery, (b) facsimile machine, with a
confirmation copy sent by one of the methods authorized in clauses (a), (c) or
(d) hereof, (c) commercial (including Federal Express) or U.S. Postal Service
overnight delivery service, or (d) deposit with the United States Postal Service
mailed first class, registered or certified mail, postage prepaid to the Persons
set forth on the signature page to this Agreement (and to such other Persons to
be copied in connection with notices to such Person) as set forth on the
signature page hereof (or on the signature page to any joinder to this
Agreement). Notices shall be deemed delivered and to have been received upon the
earliest to occur of (i) if sent by personal delivery, upon receipt by the party
to whom such notice is directed; (ii) if sent by facsimile machine, the day
(other than a Saturday, Sunday or legal holiday in the jurisdiction to which
such notice is directed) such notice is sent if sent (as evidenced by the
facsimile confirmed receipt) prior to 5:00 p.m. U.S. Eastern Time, or the day
(other than a Saturday, Sunday or legal holiday in the jurisdiction to which
such notice is directed) after which such notice is sent if sent after 5:00 p.m.
U.S. Eastern Time; (iii) if sent by overnight delivery service, the first day
(other than a Saturday, Sunday or legal holiday in the jurisdiction to which
such notice is directed) following the day the same is deposited with the
commercial carrier or United States Postal Service; or (iv) if sent by first
class mail, registered or certified, postage prepaid, the fifth day (other than
a Saturday, Sunday or legal holiday in the jurisdiction to which such notice is
directed) following the day the same is deposited with the United States Postal
Service. Each party, by notice duly given to each other party hereto, may
specify a different address for the giving of any notice hereunder.
SECTION 5.7 CUMULATIVE REMEDIES; FAILURE TO PURSUE REMEDIES. Except as
otherwise provided in Section 2.1(c) hereof, the rights and remedies provided by
this Agreement are cumulative and the use of any one right or remedy by any
party shall not preclude or waive its right to use any or all other remedies.
Said rights and remedies are given in addition to any other rights the parties
may have by law, statute, ordinance or otherwise. Except where a time period is
specified, no delay on the part of any party in the exercise of any right,
power, privilege or remedy hereunder shall operate as a waiver thereof, nor
shall any exercise or partial exercise of any such right, power, privilege or
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remedy preclude any further exercise thereof or the exercise of any other right,
power, privilege or remedy.
SECTION 5.8 AMENDMENTS AND WAIVERS. Except as otherwise expressly
provided herein, no provision of this Agreement may be amended or modified
except upon the written consent of Jarden and the Holders holding a majority of
the shares of Registrable Securities. Any amendment or modification so affected
shall be binding upon Jarden and all of the Holders. Any provision of this
Agreement may be waived by Jarden and any Holder to be bound by such waiver. The
failure of any party to enforce any of the provisions of this Agreement shall in
no way be construed as a waiver of such provisions and shall not affect the
right of such party thereafter to enforce each and every provision of this
Agreement in accordance with its terms.
SECTION 5.9 ASSIGNMENT; BINDING EFFECT. This Agreement may not be
assigned, in whole or in part, by any party hereto without the prior written
consent of Jarden and the Holders holding a majority of the shares of
Registrable Securities; provided, however, that AMC shall be permitted to assign
its rights hereunder to any assignee or designee of AMC's rights to receive
Jarden Common Stock pursuant to Section 2.2 of the Purchase Agreement and to any
Lehigh Manager to whom AMC assigns Jarden Common Stock received pursuant to
Section 2.2 of the Purchase Agreement following the issuance thereof; provided
that any such assignee, designee or Lehigh Manager executes a joinder to this
Agreement reasonably satisfactory in form to Jarden and AMC. The terms and
conditions of this Agreement shall inure to the benefit of and be binding upon
the respective successors and permitted assigns of the parties. Nothing in this
Agreement, express or implied, is intended to confer upon any party other than
the parties hereof or their respective successors and permitted assigns any
rights, remedies, obligations or liabilities under or by reason of this
Agreement, except as expressly provided in this Agreement.
SECTION 5.10 SEVERABILITY. If any term or provision of this Agreement,
or the application thereof to any Person or circumstance, shall, to any extent,
be invalid or unenforceable, the remainder of this Agreement, or application to
other Persons or circumstances, shall not be affected thereby, and each term and
provision of this Agreement is hereby declared to be separate and distinct and
shall be enforced to the fullest extent permitted by law. If any provision of
this Agreement is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable. If any provision of this
Agreement is declared invalid or unenforceable for any reason other than
overbreadth, the offending provision will be modified so as to maintain the
essential benefits of the bargain among the parties to the maximum extent
possible, consistent with applicable law and public policy.
SECTION 5.11 COUNTERPARTS; SIGNATURES. This Agreement may be executed
in any number of counterparts with the same effect as if all parties hereto had
signed the same document, and all counterparts shall be construed together and
shall constitute one instrument. A facsimile or photocopied signature shall be
deemed to be the functional equivalent of an original for all purposes.
SECTION 5.12 ENTIRE AGREEMENT. This Agreement constitutes the full and
entire understanding and agreement between the parties with respect to the
subject matter of this
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Agreement and supersedes all prior agreements and understandings pertaining
thereto, whether oral or written.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
JARDEN: ADDRESS:
JARDEN CORPORATION 555 Theodore Fremd Avenue
Rye, NY 10580
Attn: Martin E. Franklin
By: /s/ Desiree DeStefano Fax: 914-867-9405
----------------------------------
Name: Desiree DeStefano
Title: Senior Vice President with a copy to (which
shall not constitute notice):
Kane Kessler, PC
1350 Avenue of the Americas
New York, New York 10019
Attn: Robert L. Lawrence, Esq.
Fax: 212-245-3009
AMC: ADDRESS:
AMERICAN MANUFACTURING 555 Croton Road, Suite 300
COMPANY, INC. King of Prussia, PA 19406
Attn: President
Fax: 610-962-3797
By: /s/ Robert H. Strouse
---------------------------------
Name: Robert H. Strouse with a copy to (which
Title: President shall not constitute notice):
Drinker Biddle & Reath LLP
105 College Road East
Princeton, NJ 08540
Attn: John E. Stoddard III, Esq.
Fax: 609-799-7000
[SIGNATURE PAGE TO REGISTRATION RIGHTS AGREEMENT]