EXECUTION COPY
REGISTRATION RIGHTS AGREEMENT
by and among
Jarden Corporation
The parties listed as guarantors hereto
and
Trienda Corporation, X Properties, LLC
AND
CIBC WORLD MARKETS CORP.
BANC OF AMERICA SECURITIES LLC
AS UNDERWRITERS
DATED AS OF MAY 8, 2003
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (this "Agreement") is made and entered
into as of May 8, 2003, by and among Jarden Corporation, a Delaware corporation
(the "Company"), the guarantors listed on Schedule I attached hereto (each a
"Guarantor" and, collectively, the "Guarantors"), Trienda Corporation, X
Properties, LLC and CIBC World Markets Corp. and Banc of America Securities LLC,
(each an "Underwriter" and, collectively, the "Underwriters"), each of whom has
agreed to purchase the Company's 9 3/4% Senior Subordinated Notes due 2012 (the
"Notes") pursuant to the Underwriting Agreement (as defined below).
This Agreement is made pursuant to the Underwriting Agreement, dated as of
May 1, 2003 (the "Underwriting Agreement"), by and among the Company, the
Guarantors and the Underwriters (i) for the benefit of each Underwriter and (ii)
for the benefit of the holders from time to time of the Notes (including you and
each other Underwriter). In order to induce the Underwriters to purchase the
Notes, the Company has agreed to provide the registration rights set forth in
this Agreement. The execution and delivery of this Agreement is a condition to
the obligations of the Underwriters set forth in Section 5(i) of the
Underwriting Agreement.
The parties hereby agree as follows:
SECTION 1. DEFINITIONS
As used in this Agreement, the following capitalized terms shall have the
following meanings:
Additional Interest Payment Date: With respect to the Notes, each
Interest Payment Date.
Closing Date: The date of this Agreement.
Commission: The Securities and Exchange Commission.
Consummate: A Registered Exchange Offer shall be deemed "Consummated"
for purposes of this Agreement upon the occurrence of (i) the filing and
effectiveness under the Securities Act of the Exchange Offer Registration
Statement relating to the Exchange Notes to be issued in the Exchange
Offer, (ii) the maintenance of such Exchange Offer Registration Statement
continuously effective and the keeping of the Exchange Offer open for a
period not less than the minimum period required pursuant to Section 3(b)
hereof, and (iii) the delivery by the Company to the registrar under the
2002 Indenture of Exchange Notes in the same aggregate principal amount as
the aggregate principal amount of Notes that were tendered by Holders
thereof pursuant to the Exchange Offer.
Exchange Act: The Securities Exchange Act of 1934, as amended.
Exchange Notes: The 9 3/4% Senior Subordinated Notes due 2012, (CUSIP
No. [020040 AB 7]) issued under the 2002 Indenture, substantially similar
to the Notes, to be issued to Holders in exchange for the Notes pursuant to
this Agreement.
Exchange Offer: The exchange by the Company under the Securities Act
of the Exchange Notes pursuant to which the Company offers the Holders of
all outstanding Notes the opportunity to exchange all such outstanding
Notes held by such Holders for 2002 Notes in an aggregate principal amount
equal to the aggregate principal amount of the Notes tendered in such
exchange offer by such Holders.
Exchange Offer Registration Statement: The registration statement of
the Company relating to the offering of Exchange Notes pursuant to the
Exchange Offer, including the Prospectus included therein, all amendments
and supplements thereto (including post-effective amendments) and all
exhibits and material incorporated by reference therein.
Existing Indenture: The indenture, dated as of January 29, 2003,
between the Company and The Bank of New York, as trustee (the "Trustee").
Holders: As defined in Section 2(b) hereof.
Indemnified Holder: As defined in Section 7(a) hereof.
2002 Indenture: The Indenture, dated as of April 24, 2002, among the
Company, the Guarantors and The Bank of New York, as trustee (the "2002
Trustee"), pursuant to which the Company's $150.0 million of outstanding
9 3/4% senior Subordinated Notes due 2012 were issued and pursuant to which
the Exchange Notes are to be issued, as such 2002 Indenture is amended or
supplemented from time to time in accordance with the terms thereof.
Indenture: The Existing Indenture, as supplemented by the first
supplemental indenture among the Company, the Guarantors and the Trustee
dated as of May 8, 2003.
Initial Placement: The issuance and sale by the Company of the Notes
to the Underwriters pursuant to the Underwriting Agreement.
Interest Payment Date: As defined in the Indenture and the Notes.
NASD: National Association of Securities Dealers, Inc.
Notes: The 9 3/4% Senior Subordinated Notes due 2012 issued under the
Indenture.
Person: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political
subdivision thereof.
Prospectus: The prospectus included in the Exchange Offer Registration
Statement, as amended or supplemented by any prospectus supplement and by
all other amendments thereto, including post-effective amendments, and all
material incorporated by reference into such Prospectus.
Record Holder: With respect to any Damages Payment Date relating to
the Notes, each Person who is a Holder of Notes on the record date with
respect to the Interest Payment Date on which such Damages Payment Date
shall occur.
Registration Default: As defined in Section 4 hereof.
Securities Act: The Securities Act of 1933, as amended.
Trust Indenture Act: The Trust Indenture Act of 1939 (15 U.S.C.
Section 77aaa 77bbbb) as in effect on the date of the Indenture.
SECTION 2. SECURITIES SUBJECT TO THIS AGREEMENT
(a) The Notes. The securities entitled to the benefits of this Agreement
are the Notes.
(b) Holders. A Person is deemed to be a holder Notes (each, a "Holder")
whenever such Person owns Notes.
SECTION 3. REGISTERED EXCHANGE OFFER
(a) The Company and the Guarantors shall (i) cause to be filed with the
Commission the Exchange Offer Registration Statement under the Securities Act
enabling Holders of the Notes to exchange the Notes for
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registered notes issued under the 2002 Indenture, (ii) use commercially
reasonable efforts to cause such Exchange Offer Registration Statement to become
effective, (iii) in connection with the foregoing, file (A) all pre-effective
amendments to such Exchange Offer Registration Statement as may be necessary in
order to cause such Exchange Offer Registration Statement to become effective,
(B) if applicable, a post-effective amendment to such Exchange Offer
Registration Statement pursuant to Rule 430A under the Securities Act and (C)
cause all necessary filings in connection with the registration and
qualification of the Exchange Notes to be made under the Blue Sky laws of such
jurisdictions as are necessary to permit Consummation of the Exchange Offer, and
(iv) upon effectiveness of such Exchange Offer Registration Statement, commence
the Exchange Offer. The Exchange Offer shall be on the appropriate form
permitting registration of the Exchange Notes to be offered in exchange for the
Notes.
(b) The Company and the Guarantors shall cause the Exchange Offer
Registration Statement to be effective continuously and shall keep the Exchange
Offer open for a period of not less than the minimum period required under
applicable federal and state securities laws to Consummate the Exchange Offer;
provided, however, that in no event shall such period be less than 30 days after
the date notice of the Exchange Offer is mailed to the Holders. The Company
shall cause the Exchange Offer to comply with all applicable federal and state
securities laws. No securities other than the Notes or any notes that may be
issued under the 2002 Indenture (and permitted thereunder to be so included)
shall be included in the Exchange Offer Registration Statement. The Company
shall use commercially reasonable efforts to consummate the Exchange Offer
within 365 days after the date hereof, provided that if the Company or any
Guarantor files any other registration statement or otherwise offers securities
pursuant to any registration statement then the Company and the Guarantors shall
be required to file the Exchange Offer Registration Statement contemporaneously
therewith, except for such registration statement on form S-8 (or any successor
form or registration statement) or any registration statement that may be
required under the Registration Rights Agreement dated as of April 24, 2002
executed and delivered in connection with the issuance of the $150.0 million of
notes issued under the 2002 Indenture and outstanding on the date hereof or
except if such offering is an equity offering and the underwriter for such
equity offering reasonably believes the filing of the Exchange Offer
Registration Statement is reasonably likely to have an adverse effect on the
equity offering.
SECTION 4. LIQUIDATED DAMAGES
If the Company and the Guarantors (i) fail to consummate the Exchange
Offer within 365 days after the date hereof; or (ii) fail to file the Exchange
Offer Registration Statement, as required by Section 3(b) above, (each such
event referred to in clauses (i) and (ii), a "Registration Default"), then the
Company and the Guarantors hereby jointly and severally agree to pay to each
Holder of Notes affected thereby liquidated damages in an amount equal to $.05
per week per $1,000 in principal amount of Notes held by such Holder for each
week or portion thereof that the Registration Default continues for the first
90-day period immediately following the occurrence of such Registration Default.
The amount of the liquidated damages shall increase by an additional $.05 per
week per $1,000 in principal amount of Notes with respect to each subsequent
90-day period until all Registration Defaults have been cured, up to a maximum
amount of liquidated damages of $.50 per week per $1,000 in principal amount of
Notes. Following the cure of all Registration Defaults relating to any
particular Notes, liquidated damages payable with respect to the Notes as a
result of such clause (i) or (ii) shall cease.
All obligations of the Company and the Guarantors set forth in the
preceding paragraph that are outstanding with respect to any Note at the time
such security ceases to exist and is exchanged for an Exchange Note shall
survive until such time as all such obligations with respect to such security
shall have been satisfied in full.
Notwithstanding anything herein to the contrary, the occurrence of a
Registration Default under Section 4 hereof shall not constitute a default
and/or breach of this Agreement and shall solely give rise to the right of the
Holders of the Notes to receive Liquidated Damages.
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SECTION 5. REGISTRATION PROCEDURES
In connection with the Exchange Offer, the Company and the Guarantors
shall comply with all of the following provisions:
(i) if in the reasonable opinion of counsel to the Company there is a
question as to whether the Exchange Offer is permitted by applicable law, the
Company and the Guarantors hereby agree to seek a no-action letter or other
favorable decision from the Commission allowing the Company and the Guarantors
to Consummate an Exchange Offer for such Notes. The Company and the Guarantors
each hereby agrees to pursue the issuance of such a decision to the Commission
staff level but shall not be required to take commercially unreasonable action
to effect a change of Commission policy. The Company and the Guarantors each
hereby agrees, however, to (A) participate in telephonic conferences with the
Commission, (B) deliver to the Commission staff an analysis prepared by counsel
to the Company setting forth the legal bases, if any, upon which such counsel
has concluded that such an Exchange Offer should be permitted and (C) diligently
pursue a favorable resolution by the Commission staff of such submission;
(ii) use their commercially reasonable efforts to keep such Exchange
Offer Registration Statement continuously effective and provide all requisite
financial statements (including, if required by the Securities Act or any
regulation thereunder, financial statements of the Guarantors for the period
specified in Section 3 of this Agreement,) upon the occurrence of any event that
would cause any such Exchange Offer Registration Statement or the Prospectus
contained therein to contain a material misstatement or the Company shall file
promptly an appropriate amendment to such Exchange Offer Registration Statement
correcting any such misstatement or omission and use its commercially reasonable
efforts to cause such amendment to be declared effective and such Exchange Offer
Registration Statement and the related Prospectus to become usable for their
intended purpose(s) as soon as practicable thereafter;
(iii) prepare and file with the Commission such amendments and
post-effective amendments to the Exchange Offer Registration Statement as may be
necessary to keep the Exchange Offer Registration Statement effective for the
applicable period set forth in Section 3 hereof; cause the Prospectus to be
supplemented by any required Prospectus supplement, and as so supplemented to be
filed pursuant to Rule 424 under the Securities Act, and to comply fully with
the applicable provisions of Rules 424 and 430A under the Securities Act in a
timely manner;
(iv) use their commercially reasonable efforts to obtain the
withdrawal or lifting of any stop order suspending the effectiveness of the
Exchange Offer Registration Statement, or of any order issued from any state
securities commission or other regulatory authority suspending the qualification
or exemption from qualification of the Notes under state securities or Blue Sky
laws, at the earliest possible time;
(v) furnish without charge to each of the Underwriters before filing
with the Commission, copies of the Exchange Offer Registration Statement or any
Prospectus included therein or any amendments or supplements to any such
Exchange Offer Registration Statement or Prospectus (including all documents
incorporated by reference after the initial filing of such Exchange Offer
Registration Statement), which documents will be subject to the review of such
Underwriters for a period of at least three business days, and the Company will
not file any such Exchange Offer Registration Statement or Prospectus or any
amendment or supplement to any such Exchange Offer Registration Statement or
Prospectus (including all such documents incorporated by reference) to which an
Underwriter shall reasonably object in writing within five business days after
the receipt thereof (such objection to be deemed timely made upon confirmation
of telecopy transmission within such period). The objection of an Underwriters
shall be deemed to be reasonable if such Exchange Offer Registration Statement,
amendment, Prospectus or supplement, as applicable, as proposed to be filed,
contains a material misstatement or omission;
(vi) make available at reasonable times for inspection by the
Underwriters and any attorney or accountant retained by such Underwriters, all
financial and other records, pertinent corporate documents and properties of the
Company and the Guarantors and cause the Company's and the Guarantors'
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officers, directors and employees to supply all information reasonably requested
by any such Underwriter, attorney or accountant in connection with such Exchange
Offer Registration Statement subsequent to the filing thereof and prior to its
effectiveness;
(vii) prior to the exchange of the Notes, cooperate with, and cause
the Guarantors to cooperate with, the Holders, and their respective counsel in
connection with the registration and qualification of the Notes under the
securities or Blue Sky laws of such jurisdictions as the Holders may request;
provided, however, that neither the Company nor the Guarantors shall be required
to register or qualify as a foreign corporation where it is not then so
qualified or to take any action that would subject it to the service of process
in suits or to taxation, other than as to matters and transactions relating to
the Exchange Offer Registration Statement, in any jurisdiction where it is not
then so subject;
(viii) provide the 2002 Trustee under the 2002 Indenture with printed
certificates for the Exchange Notes which are in a form eligible for deposit
with the Depositary Trust Company; and
(ix) otherwise use their commercially reasonable efforts to comply
with all applicable rules and regulations of the Commission, and make generally
available to its security holders upon request, as soon as practicable, a
consolidated earnings statement meeting the requirements of Rule 158 (which need
not be audited) for the twelve-month period beginning with the first month of
the Company's first fiscal quarter commencing after the effective date of the
Exchange Offer Registration Statement.
The Company, the Guarantors, Trienda Corporation and X Properties, LLC
acknowledge and agree that the Exchange Notes to be issued in connection with
the Exchange Offer shall be guaranteed by Trienda Corporation and X Properties,
LLC unless at such time they are no longer guarantors of the notes issued and to
be issued under the 2002 Indenture.
SECTION 6. REGISTRATION EXPENSES
(a) All expenses incident to the Company's or the Guarantors' performance
of or compliance with this Agreement will be borne by the Company or the
Guarantors, regardless of whether the Exchange Offer Registration Statement
becomes effective, including without limitation: (i) all registration and filing
fees and expenses of the Company; (ii) all fees and expenses of compliance with
federal securities and state Blue Sky or securities laws; (iii) all expenses of
printing (including printing certificates for the Exchange Notes to be issued in
the Exchange Offer and printing of Prospectuses), messenger and delivery
services and telephone; (iv) all fees and disbursements of counsel for the
Company, the Guarantors and, subject to Section 6(b) below, the Holders of
Notes; (v) all application and filing fees in connection with listing the
Exchange Notes on a national securities exchange or automated quotation system
pursuant to the requirements thereof; and (vi) all fees and disbursements of
independent certified public accountants of the Company and the Guarantors
(including the expenses of any special audit and comfort letters required by or
incident to such performance).
The Company will, in any event, bear its and the Guarantors' internal
expenses (including, without limitation, all salaries and expenses of its
officers and employees performing legal or accounting duties), the expenses of
any annual audit and the fees and expenses of any Person, including special
experts, retained by the Company or the Guarantors.
(b) In connection with the Exchange Offer Registration Statement, the
Company and the Guarantors will reimburse the Underwriters and the Holders of
Notes being tendered in the Exchange Offer for the reasonable fees and
disbursements of not more than one counsel, who shall be Latham & Watkins LLP or
such other counsel as may be chosen by the Holders of a majority in principal
amount of the Notes for whose benefit such Exchange Offer Registration Statement
is being prepared.
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SECTION 7. INDEMNIFICATION
(a) The Company agrees and the Guarantors, jointly and severally, agree to
indemnify and hold harmless (i) each Holder and (ii) each person, if any, who
controls (within the meaning of Section 15 of the Securities Act or Section 20
of the Exchange Act) any Holder (any of the persons referred to in this clause
(ii) being hereinafter referred to as a "controlling person") and (iii) the
respective officers, directors, partners, employees, representatives and agents
of any Holder or any controlling person (any person referred to in clause (i),
(ii) or (iii) may hereinafter be referred to as an "Indemnified Holder"), to the
fullest extent lawful, from and against any and all losses, claims, damages,
liabilities, judgments, actions and expenses (including without limitation and
as incurred, reimbursement of all reasonable costs of investigating, preparing,
pursuing, settling, compromising, paying or defending any claim or action, or
any investigation or proceeding by any governmental agency or body, commenced or
threatened, including the reasonable fees and expenses of counsel to any
Indemnified Holder), joint or several, directly or indirectly caused by, related
to, based upon, arising out of or in connection with any untrue statement or
alleged untrue statement of a material fact contained in any Exchange Offer
Registration Statement or Prospectus (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 not misleading,
except insofar as such losses, claims, damages, liabilities or expenses are
caused by an untrue statement or omission or alleged untrue statement or
omission that is made in reliance upon and in conformity with information
relating to any of the Holders furnished in writing to the Company by any of the
Holders expressly for use therein. This indemnity agreement shall be in addition
to any liability which the Company may otherwise have.
In case any action or proceeding (including any governmental or
regulatory investigation or proceeding) shall be brought or asserted against any
of the Indemnified Holders with respect to which indemnity may be sought against
the Company or the Guarantors, such Indemnified Holder (or the Indemnified
Holder controlled by such controlling person) shall promptly notify the Company
and the Guarantors in writing (provided, that the failure to give such notice
shall not relieve the Company or the Guarantors of their respective obligations
pursuant to this Agreement). Such Indemnified Holder shall have the right to
employ its own counsel in any such action and the reasonable fees and expenses
of such counsel shall be paid, as incurred, by the Company and the Guarantors
(regardless of whether it is ultimately determined that an Indemnified Holder is
not entitled to indemnification hereunder). The Company and the Guarantors shall
not, in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings in the same jurisdiction
arising out of the same general allegations or circumstances, be liable for the
reasonable fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) at any time for such Indemnified Holders, which
firm shall be designated by the Holders. The Company shall be liable for any
settlement of any such action or proceeding effected with the Company's prior
written consent, which consent shall not be withheld unreasonably, and the
Company agrees to indemnify and hold harmless any Indemnified Holder from and
against any loss, claim, damage, liability or expense by reason of any
settlement of any action effected with the written consent of the Company. The
Company shall not, without the prior written consent of each Indemnified Holder,
settle or compromise or consent to the entry of judgment in or otherwise seek to
terminate any pending or threatened action, claim, litigation or proceeding in
respect of which indemnification or contribution may be sought hereunder
(whether or not any Indemnified Holder is a party thereto), unless such
settlement, compromise, consent or termination includes an unconditional release
of each Indemnified Holder from all liability arising out of such action, claim,
litigation or proceeding.
(b) Each Holder of Notes agrees, severally and not jointly, to indemnify
and hold harmless the Company and the Guarantors and their respective directors,
officers of the Company who sign the Exchange Offer Registration Statement, and
any person controlling (within the meaning of Section 15 of the Securities Act
or Section 20 of the Exchange Act) the Company, and the respective officers,
directors, partners, employees, representatives and agents of each such person,
to the same extent as the foregoing indemnity from the Company and the
Guarantors to each of the Indemnified Holders, but only with respect to claims
and actions based on information relating to such Holder furnished in writing by
such Holder expressly for use in any Exchange Offer Registration Statement. In
case any action or proceeding shall be brought against the Company or its
directors or officers or any such controlling person in respect of which
indemnity may be sought against a Holder of Notes,
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such Holder shall have the rights and duties given the Company and the Company
or its directors or officers or such controlling person shall have the rights
and duties given to each Holder by the preceding paragraph. In no event shall
the liability of any Holder hereunder be greater in amount than the dollar
amount of the proceeds received by such Holder upon the sale of the Securities
giving rise to such indemnification obligation.
(c) If the indemnification provided for in this Section 7 is unavailable to
an indemnified party under Section 7(a) or Section 7(b) hereof (other than by
reason of exceptions provided in those Sections) in respect of any losses,
claims, damages, liabilities, judgments, actions or expenses referred to
therein, then each applicable indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative benefits
received by the Company and the Guarantors, on the one hand, and the Holders, on
the other hand, from the Initial Placement (which in the case of the Company
shall be deemed to be equal to the total net proceeds from the Initial Placement
as set forth in the "Use of Proceeds" section of the offering memorandum
prepared in connection with the Initial Placement and the liquidated damages
which did not become payable as a result of the filing of the Exchange Offer
Registration Statement resulting in such losses, claims, damages, liabilities,
judgments actions or expenses) and such Exchange Offer Registration Statement,
or if such allocation is not permitted by applicable law, the relative fault of
the Company and the Guarantors on the one hand, and of the Indemnified Holder,
on the other hand, in connection with the statements or omissions which resulted
in such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of the Company and the
Guarantors on the one hand and of the Indemnified Holder on the other shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or the Guarantors
or by the Indemnified Holder and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, liabilities and expenses referred to above shall be deemed to include,
subject to the limitations set forth in the second paragraph of Section 7(a),
any legal or other fees or expenses reasonably incurred by such party in
connection with investigating or defending any action or claim.
The Company, the Guarantors and each Holder of Notes agree that it would
not be just and equitable if contribution pursuant to this Section 7(c) were
determined by pro rata allocation (even if the Holders were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages, liabilities or expenses 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. Notwithstanding the provisions of this Section 7, none of the
Holders (and its related Indemnified Holders) shall be required to contribute,
in the aggregate, any amount in excess of the amount by which the total discount
received by such Holder with respect to the Initial Notes exceeds the amount of
any damages which such Holder has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. The Holders'
obligations to contribute pursuant to this Section 7(c) are several in
proportion to the respective principal amount of Initial Notes held by each of
the Holders hereunder and not joint.
SECTION 8. MISCELLANEOUS
(a) Remedies. Except to the extent set forth in Section 4 above, the
Company and the Guarantors each hereby agrees that monetary damages would not be
adequate compensation for any loss incurred by reason of a breach by it of the
provisions of this Agreement and hereby agree to waive the defense in any action
for specific performance that a remedy at law would be adequate.
(b) No Inconsistent Agreements. The Company will not, and will cause the
Guarantors not to, on or after the date of this Agreement enter into any
agreement with respect to its securities that is materially
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inconsistent with the rights granted to the Holders in this Agreement. The
rights granted to the Holders hereunder do not in any way conflict with and are
not inconsistent with the rights granted to the holders of the Company's
securities under any agreement in effect on the date hereof.
(c) Amendments and Waivers. The provisions of this Agreement may not be
amended, modified or supplemented, and waivers or consents to or departures from
the provisions hereof may not be given unless the Company has obtained the
written consent of Holders of a majority of the outstanding principal amount of
Notes. Notwithstanding the foregoing, a waiver or consent to departure from the
provisions hereof that relates exclusively to the rights of Holders whose
securities are being tendered pursuant to the Exchange Offer and that does not
affect directly or indirectly the rights of other Holders whose securities are
not being tendered pursuant to such Exchange Offer may be given by the Holders
of a majority of the outstanding principal amount of Notes being tendered or
registered; provided that, with respect to any matter that directly or
indirectly affects the rights of any Underwriter hereunder, the Company shall
obtain the written consent of each such Underwriter with respect to which such
amendment, qualification, supplement, waiver, consent or departure is to be
effective.
(d) Additional Guarantors. The Company shall cause any of its Domestic
Subsidiaries (as defined in the Indenture) that becomes, prior to the
consummation of the Exchange Offer, Guarantors in accordance with the terms and
provisions of the Indenture to become a party to this Agreement as a Guarantor.
It is understood and agreed that if, prior to the Exchange Offer, a Guarantor
that has executed this Agreement is no longer a Guarantor under the Indenture
and is no longer a guarantor of the notes under the 2002 Indenture, in each
case, pursuant to and in accordance with the provisions of the Indenture and the
2002 Indenture, such Guarantor shall no longer be a Guarantor for purposes of
this Agreement.
(e) Notices. All notices and other communications provided for or permitted
hereunder shall be made in writing by hand-delivery, first-class mail
(registered or certified, return receipt requested), telex, telecopier, or air
courier guaranteeing overnight delivery:
(i) if to a Holder, at the address set forth on the records of the
Registrar under the Indenture, with a copy to the Registrar under the Indenture;
and
(ii) if to the Company or the Guarantors:
Jarden Corporation
Suite B-302
555 Theodore Fremd Avenue
Rye, NY 10580
Facsimile: (914) 967-9405
Attention: Ian G.H. Ashken
With a copy to:
Kane Kessler, P.C.
1350 Avenue of the Americas, 26th Floor
New York, NY 10019
Facsimile: (212) 245-3009
Attention: Robert L. Lawrence
All such notices and communications shall be deemed to have been duly
given: at the time delivered by hand, if personally delivered; five business
days after being deposited in the mail, postage prepaid, if mailed; when
answered back, if telexed; when receipt acknowledged, if telecopied; and on the
next business day, if timely delivered to an air courier guaranteeing overnight
delivery.
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Copies of all such notices, demands or other communications
shall be concurrently delivered by the Person giving the same to the Trustee at
the address specified in the Indenture.
(f) Successors and Assigns. This Agreement shall inure to the benefit of
and be binding upon the successors and assigns of each of the parties, including
without limitation and without the need for an express assignment, subsequent
Holders of Notes; provided, however, that this Agreement shall not inure to the
benefit of or be binding upon a successor or assign of a Holder unless and to
the extent such successor or assign acquired Notes from such Holder.
(g) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(h) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(i) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO THE
CONFLICT OF LAW RULES THEREOF.
(j) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(k) Entire Agreement. This Agreement together with the Underwriting
Agreement, the DTC Agreement, the Notes, the Guarantees and the Indenture (each
as defined in the Underwriting Agreement) is intended by the parties as a final
expression of their agreement and intended to be a complete and exclusive
statement of the agreement and understanding of the parties hereto in respect of
the subject matter contained herein. There are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein
with respect to the registration rights granted by the Company with respect to
the Notes. This Agreement supersedes all prior agreements and understandings
between the parties with respect to such subject matter.
(l) Information by Holders. No Holder of Notes may include its Notes in the
Exchange Offer Registration Statement unless and until such Holder furnishes to
the Company, within 20 business days after receipt of a request therefor, such
information regarding such Holders and Notes held by them as a Company may
reasonably request in writing; provided that such information is required to be
included in such Exchange Offer Registration Statement or otherwise filed in
order to effect any registration, qualification or compliance with state
securities laws in accordance with Section 5 hereof. It being understood that
Holders who are institutional investors shall not be required to provide such
information.
9
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
first written above.
JARDEN CORPORATION
By: /s/ Desiree DeStefano
---------------------------------
Name: Desiree DeStefano
Title: Senior Vice President
ALLTRISTA NEWCO CORPORATION
By: /s/ Desiree DeStefano
---------------------------------
Name: Desiree DeStefano
Title: Vice President
QUOIN CORPORATION
By: /s/ Desiree DeStefano
---------------------------------
Name: Desiree DeStefano
Title: Vice President
HEARTHMARK, INC.
By: /s/ Desiree DeStefano
---------------------------------
Name: Desiree DeStefano
Title: Vice President
ALLTRISTA PLASTICS CORPORATION
By: /s/ Desiree DeStefano
---------------------------------
Name: Desiree DeStefano
Title: Vice President
10
ALLTRISTA ZINC PRODUCTS, L.P.
By: Alltrista Newco Corporation,
its General Partner
By: /s/ Desiree DeStefano
---------------------------------
Name: Desiree DeStefano
Title: Vice President
TILIA, INC.
By: /s/ Desiree DeStefano
---------------------------------
Name: Desiree DeStefano
Title: Vice President
TILIA DIRECT, INC.
By: /s/ Desiree DeStefano
---------------------------------
Name: Desiree DeStefano
Title: Vice President
TILIA INTERNATIONAL, INC.
By: /s/ Desiree DeStefano
---------------------------------
Name: Desiree DeStefano
Title Vice President
TRIENDA CORPORATION
By: /s/ Desiree DeStefano
---------------------------------
Name: Desiree DeStefano
Title: Vice President
X PROPERTIES, LLC
By: /s/ Desiree DeStefano
---------------------------------
Name: Desiree DeStefano
Title: Vice President
11
The foregoing Registration Rights Agreement is hereby
confirmed and accepted as of the date first above written.
CIBC WORLD MARKETS CORP.
BANC OF AMERICA SECURITIES LLC
BY: CIBC WORLD MARKETS CORP.
By: /s/ Pete Mejlander
--------------------
Pete Mejlander
SCHEDULE I
GUARANTORS
Alltrista Newco Corporation
Quoin Corporation
Hearthmark, Inc.*
Alltrista Plastics Corporation**
Alltrista Zinc Products, L.P.***
Tilia, Inc.
Tilia Direct, Inc.
Tilia International, Inc.
* (DBA) Alltrista Consumer Products Company
** (DBA) Alltrista Unimark Plastics Company and Alltrista Industrial Plastics
Company
*** (DBA) Alltrista Zinc Products Company
2