-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, PLH5f/3FI+aTlN/Y1sgiMaJjpvKNxOSLJirXVxVn4CHI0MfvZSMv1w+Xr34fhTSi 9hrDiexC8l0RVtVAUKzHUg== 0000950135-06-001470.txt : 20060308 0000950135-06-001470.hdr.sgml : 20060308 20060308111957 ACCESSION NUMBER: 0000950135-06-001470 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20060308 DATE AS OF CHANGE: 20060308 GROUP MEMBERS: BERKSHIRE FUND IV, LIMITED PARTNERSHIP GROUP MEMBERS: BERKSHIRE INVESTORS LLC SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: JARDEN CORP CENTRAL INDEX KEY: 0000895655 STANDARD INDUSTRIAL CLASSIFICATION: WHOLESALE-MISCELLANEOUS NONDURABLE GOODS [5190] IRS NUMBER: 351828377 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-45375 FILM NUMBER: 06672006 BUSINESS ADDRESS: STREET 1: 555 THEODORE FREMD AVE CITY: RYE STATE: NY ZIP: 10580 BUSINESS PHONE: 914 967 9400 MAIL ADDRESS: STREET 1: 555 THEODORE FREMD STREET 2: AVE CITY: RYE STATE: NY ZIP: 10580 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: BERKSHIRE FUND V L P CENTRAL INDEX KEY: 0001069736 IRS NUMBER: 000000000 STATE OF INCORPORATION: MA FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: ONE BOSTON PLACE CITY: BOSTON STATE: MA ZIP: 02108 BUSINESS PHONE: 6172270050 SC 13D/A 1 b59586bpsc13dza.txt BERKSHIRE PARTNERS LLC UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON DC 20549 SCHEDULE 13D (RULE 13D-101) INFORMATION TO BE INCLUDED IN STATEMENTS FILED PURSUANT TO RULE 13D-1(A) AND AMENDMENTS THERETO FILED PURSUANT TO RULE 13D-2(A) (AMENDMENT NO. 1) JARDEN CORPORATION ---------------------------- (Name of Issuer) Common Stock, par value $0.01 per share - -------------------------------------------------------------------------------- (Title of Class of Securities) 471109 10 8 - -------------------------------------------------------------------------------- (CUSIP Number) Richard K. Lubin Berkshire Partners LLC One Boston Place Suite 3300 Boston, Massachusetts 02108 (617) 227-0050 - -------------------------------------------------------------------------------- (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) March 1, 2006 - -------------------------------------------------------------------------------- (Date of Event Which Requires Filing of This Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(e), 13d-1(f) or 13d-1(g), check the following box [ ] Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See Rule 13d-7 for other parties to whom copies are to be sent. (continued on following pages) Page 1 of 8 Pages CUSIP NO. 471109 10 8 Page 2 of 8 pages SCHEDULE 13D 1. NAME OF REPORTING PERSONS S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS Berkshire Fund IV, Limited Partnership 04-3303593 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)[ ] (b)[X] 3. SEC USE ONLY 4. SOURCE OF FUNDS OO 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS [ ] IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) 6. CITIZENSHIP OR PLACE OF ORGANIZATION Massachusetts 7. SOLE VOTING POWER NUMBER OF 1,602,614 SHARES BENEFICIALLY 8. SHARED VOTING POWER OWNED BY EACH REPORTING 9. SOLE DISPOSITIVE POWER PERSON 1,602,614 WITH 10. SHARED DISPOSITIVE POWER 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,602,614 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ] EXCLUDES CERTAIN SHARES 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.4% * 14. TYPE OF REPORTING PERSON PN * See Item 5 for calculation. 2 CUSIP NO. 471109 10 8 Page 3 of 8 pages SCHEDULE 13D 1. NAME OF REPORTING PERSONS S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS Berkshire Fund V, Limited Partnership 04-3423237 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)[ ] (b)[X] 3. SEC USE ONLY 4. SOURCE OF FUNDS OO 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS [ ] IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) 6. CITIZENSHIP OR PLACE OF ORGANIZATION Massachusetts 7. SOLE VOTING POWER NUMBER OF 666,984 SHARES BENEFICIALLY 8. SHARED VOTING POWER OWNED BY EACH 9. SOLE DISPOSITIVE POWER REPORTING 666,984 PERSON WITH 10. SHARED DISPOSITIVE POWER 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 666,984 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ] EXCLUDES CERTAIN SHARES 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 1.0% * 14. TYPE OF REPORTING PERSON PN * See Item 5 for calculation. 3 CUSIP NO. 471109 10 8 Page 4 of 8 pages SCHEDULE 13D NAME OF REPORTING PERSONS 1. S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSONS Berkshire Investors LLC 04-3309729 2. CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a)[ ] (b)[X] 3. SEC USE ONLY 4. SOURCE OF FUNDS OO 5. CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS [ ] IS REQUIRED PURSUANT TO ITEM 2(d) or 2(e) 6. CITIZENSHIP OR PLACE OF ORGANIZATION Massachusetts 7. SOLE VOTING POWER NUMBER OF 226,960 SHARES BENEFICIALLY 8. SHARED VOTING POWER OWNED BY EACH REPORTING 9. SOLE DISPOSITIVE POWER PERSON 226,960 WITH 10. SHARED DISPOSITIVE POWER 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 226,960 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ] EXCLUDES CERTAIN SHARES 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.3% * 14. TYPE OF REPORTING PERSON OO * See Item 5 for calculation. 4 This Amendment No. 1 to Schedule 13D ("Amendment No. 1") relates to the common stock, $0.01 par value (the "Common Stock"), of Jarden Corporation, a Delaware corporation (the "Company"). This Amendment No. 1 amends the initial statement on Schedule 13D, dated July 18, 2005, as filed with the Commission on July 28, 2005 (the "Initial Schedule 13D"), and is being filed jointly by the following entities (each, a "Reporting Person"): (1) Berkshire Fund IV, Limited Partnership, a Massachusetts limited partnership ("Fund IV"), (2) Berkshire Fund V, Limited Partnership, a Massachusetts limited partnership ("Fund V"), and (3) Berkshire Investors LLC, a Massachusetts limited liability company ("Berkshire Investors "). The Reporting Persons may be referred to collectively herein as "Berkshire." Capitalized terms used in this Amendment No. 1 but not otherwise defined have the meanings ascribed to them in the Schedule 13D. Information contained in this statement is as of the date hereof, unless otherwise expressly provided herein. Pursuant to Rule 13d-2, this Amendment No. 1 is being filed to report a material decrease in the percentage of Common Stock owned by Berkshire as a result of an agreement dated March 1, 2006 between the Company and Berkshire (the "Share Repurchase Agreement") pursuant to which Berkshire sold, and the Company repurchased, an aggregate of 2,000,000 shares of Common Stock (out of a total of 4,496,558 shares) at a price of $25.00 per share ($50,000,000 total consideration). Except as set forth below, all previously reported Items are unchanged. ITEM 5. INTEREST IN SECURITIES Item 5 in the Initial Schedule 13D is hereby deleted in its entirety and the following inserted in lieu thereof: (a) and (b) The foregoing percentages are based on a total of 67,957,473 issued and outstanding shares of Common Stock as of November 7, 2005, as most recently reported by the Company. Accordingly, the shares of Common Stock beneficially owned by Berkshire, in the aggregate, represent approximately 3.7% of the outstanding shares of Common Stock. The foregoing percentage was calculated in accordance with Rule 13-3(d)(1) of the Exchange Act, which specifically excludes from such calculation all securities not outstanding which are subject to options, warrants, rights or conversion privileges and which are beneficially owned by any person other than the Reporting Persons. By virtue of the relationships described herein, the Reporting Persons may be deemed to constitute a "group" within the meaning of Rule 13d-5 under the Exchange Act. As a member of a group, each Reporting Person may be deemed to share voting and dispositive power with respect to, and therefore beneficially own, the shares beneficially owned by members of the group as a whole. The filing of this Statement shall not be construed as an admission that the Reporting Persons beneficially own those shares held by any other members of the group. Following the transaction contemplated by the Share Repurchase Agreement, the beneficial ownership of Common Stock by each person named in Item 2 above is as follows: (1) Fund IV has sole voting and dispositive power with respect to, and is the beneficial owner of, 1,602,614 shares of Common Stock. As the general partner of Fund IV, Fourth Berkshire may be deemed to beneficially own the shares of Common Stock held by Fund IV. The filing of this statement shall not be construed as an admission that Fourth Berkshire is, for the purpose of Section 13(d) of the Exchange Act, the beneficial owner of such shares. (2) Fund V has sole voting and dispositive power with respect to, and is the beneficial owner of, 666,984 shares of Common Stock. As the general partner of Fund V, Fifth Berkshire may be deemed to beneficially own the shares of Common Stock held by Fund V. The filing of this statement shall not be construed as an admission that Fifth Berkshire is, for the purpose of Section 13(d) of the Exchange Act, the beneficial owner of such shares. 5 (3) Berkshire Investors has sole voting power and dispositive with respect to, and is the beneficial owner of, 226,960 shares of Common Stock. By virtue of their positions as managing members of Fourth Berkshire, Fifth Berkshire and Berkshire Investors, the Berkshire Principals may be deemed to possess indirect beneficial ownership of the shares of Common Stock beneficially owned by Berkshire. None of the Berkshire Principals, acting alone, however, has voting or investment power with respect to the shares beneficially owned by Berkshire and, as a result, each Berkshire Principal disclaims beneficial ownership of such shares of Common Stock. (c) Other than the acquisition of the Merger Shares under the Merger Agreement as described herein, Berkshire has not engaged in any transactions in the Common Stock within the past 60 days. (d) Not applicable. (e) Not applicable. ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER Item 6 in the Initial Schedule 13D is hereby amended by adding the following after the final paragraph: As described above, on March 1, 2006 Berkshire and the Company entered into an agreement pursuant to which, effective as of March 1, 2006, Berkshire sold, and the Company repurchased, an aggregate of 2,000,000 shares of Common Stock at a price of $25.00 per share ($50,000,000 total consideration). ITEM 7. MATERIAL TO BE FILED AS EXHIBITS Item 7 is hereby amended and restated in its entirety as follows: Exhibit No. Document 99.1* Joint Filing Undertaking dated as of July 28, 2005. 99.2 Agreement and Plan of Merger dated as of June 28, 2005 among the Company, Holmes and certain stockholders of Holmes (filed as Exhibit 2.1 to the Company's Current Report on Form 8-K, filed with the Commission on July 5, 2005, and incorporated herein by reference). 99.3* Registration Rights Agreement dated June 28, 2005 among the Company and certain stockholders of Holmes. 99.4 Joint Filing Undertaking regarding Amendment No. 1 to Schedule 13D, dated as of March 8, 2006. 6 99.5 Agreement dated as of March 1, 2006 among the Company and Berkshire regarding the repurchase by the Company of 2,000,000 shares of Common Stock. * Previously filed. 7 SIGNATURES After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: March 8, 2006 BERKSHIRE FUND IV, LIMITED PARTNERSHIP By: Fourth Berkshire Associates LLC, its General Partner By: /s/ Richard K. Lubin ------------------------------- Name: Richard K. Lubin Title: Managing Member BERKSHIRE FUND V, LIMITED PARTNERSHIP By: Fifth Berkshire Associates LLC, its General Partner By: /s/ Richard K. Lubin ------------------------------ Name: Richard K. Lubin Title: Managing Member BERKSHIRE INVESTORS LLC By: /s/ Richard K. Lubin ------------------------------ Name: Richard K. Lubin Title: Managing Director 8 EX-99.4 2 b59586bpexv99w4.txt EX-99.4 JOINT FILING UNDERTAKING DATED 3/08/06 EXHIBIT 99.4 JOINT FILING UNDERTAKING The undersigned, being duly authorized thereunto, hereby execute this agreement as an exhibit to this Amendment No. 1 to Schedule 13D to evidence the agreement of the below-named parties, in accordance with the rules promulgated pursuant to the Securities Exchange Act of 1934, to file this Amendment No. 1 to Schedule 13D jointly on behalf of each such party. The execution and filing of this agreement shall not be construed as an admission that the below-named parties are a group, or have agreed to act as a group. Dated: March 8, 2006 BERKSHIRE FUND IV, LIMITED PARTNERSHIP By: Fourth Berkshire Associates LLC, its General Partner By: /s/Richard K. Lubin ------------------- Name: Richard K. Lubin Title: Managing Member BERKSHIRE FUND V, LIMITED PARTNERSHIP By: Fifth Berkshire Associates LLC, its General Partner By: /s/Richard K. Lubin ------------------- Name: Richard K. Lubin Title: Managing Member BERKSHIRE INVESTORS LLC By: /s/Richard K. Lubin ------------------- Name: Richard K. Lubin Title: Managing Director EX-99.5 3 b59586bpexv99w5.txt EX-99.5 AGREEMENT DATED AS OF MARCH 1, 2006 EXHIBIT 99.5 JARDEN CORPORATION 555 THEODORE FREMD AVENUE RYE, N.Y. 10580 March 1, 2006 Berkshire Investors LLC One Boston Place Boston, MA 02108 Re: Repurchase of Jarden Corporation (the "Company") Stock Dear Sirs: 1. (a) Berkshire Investors LLC and certain of its affiliated entities as specified on Schedule A (collectively, the "Seller") agree to sell to the Company, and the Company agrees to purchase from Seller, 2,000,000 shares of the Company's common stock, par value $0.01 per share (the "Common Stock"), at $25.00 per share (the "Stock Repurchase"). (b) As of March 1, 2006, the Seller beneficially owns an aggregate of 4,496,558 shares of Common Stock which are held by the Seller in the amounts set forth on Schedule A attached hereto and each Seller holds one or more global stock certificates representing its indicated amount of Common Stock. 2. In connection with the Stock Repurchase, the Seller will deliver to the Company those global stock certificates held by the Seller from each of which a portion of the aggregate amount of 2,000,000 shares of Common Stock are to be sold in the Stock Repurchase, as more fully set forth on Schedule A attached hereto, together with instructions stating the amount of shares of Common Stock to be deducted from each global stock certificate and the delivery address for those global stock certificates which will be re-issued by the Company's transfer agent to each Seller, as more fully set forth on Schedule A attached hereto. The Company will pay $25.00 per share for each share of Common Stock repurchased hereunder, for a total purchase price of $50,000,000.00 by wire transfer in accordance with the wire transfer instructions set forth on Schedule A attached hereto. 3. Each of the Seller and the Company are sophisticated and have been advised by experienced counsel and, to the extent it deemed necessary, other advisors in connection with entering into this Letter Agreement and the transactions contemplated hereby. 4. Seller acknowledges that it has had an opportunity to review all relevant publicly available information regarding the Company. 5. Each of the parties agrees and acknowledges that: (i) there are no representations or warranties by or on behalf of any party hereto or any of its respective affiliates or representatives other than those expressly set forth in this Letter Agreement; (ii) no party has relied or will rely in respect of this Letter Agreement or the transactions contemplated hereby upon any document or written or oral information previously furnished to or discovered by it or its representatives, other than this Letter Agreement; (iii) the Company currently possesses material non-public information concerning the Company that the Seller has no direct or indirect knowledge of and which, once such information becomes publicly available subsequent to the Stock Repurchase, may materially affect the market price of the Common Stock; (iv) Seller, on behalf of itself and its respective officers, directors, shareholders, members, general partners, limited partners and representatives, hereby waives any and all claims, causes of action, losses and damages that may be incurred by Seller or such other parties directly or indirectly as a result of this Letter Agreement and the consummation of the transactions contemplated hereby, including, without limitation, by virtue of the Company's possession of material non-public information concerning the Company; (v) the Company and its affiliates, agents, officers, directors and shareholders will not have or be subject to any liability, including those arising under the federal securities laws, to Seller or any other person resulting from the distribution to Seller, or Seller's use of, any information not contained in this Letter Agreement; (vi) the parties' respective rights and obligations with respect to this Letter Agreement and the events giving rise thereto will be solely as set forth in this Letter Agreement; and (vii) this Letter Agreement contains the entire agreement between the parties with respect to the Stock Repurchase and the transactions contemplated hereby and this Letter Agreement supercedes all prior arrangements or understandings with respect thereto. Notwithstanding the foregoing, the Seller intentionally and voluntarily, and fully cognizant of the attendant risks involved, desires to enter into this Letter Agreement and consummate the transactions contemplated hereby. 6. Nothing expressed or implied in this Letter Agreement is intended, or shall be construed, to confer upon or give any person other than the Seller and the Company and their respective affiliates, successors and permitted assigns, any rights or remedies under or by reason of this Letter Agreement. 7. The parties expressly agree that all the terms and provisions hereof shall be governed by and construed in accordance with the laws of the State of New York, without giving effect to its choice of law rules. Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the courts of the State of New York located in New York County and the United States District Court for the Southern District of New York for the purpose of any suit, action, proceeding or judgment relating to or arising out of this Letter Agreement and the transactions contemplated hereby and waives any objection to such forum, whether by way of forum non conveniens or otherwise. 8. This Letter Agreement may be executed in any number of counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Facsimile signatures shall be binding on the parties. Each of the parties has been instrumental in negotiating and drafting this Letter Agreement, and as such, no rule of construction shall be applicable which construes any ambiguities against the drafting party. Please countersign this Letter Agreement below if you agree to the foregoing. [SIGNATURE PAGE FOLLOWS] Very truly yours, JARDEN CORPORATION By: /s/ James Lillie ------------------------------- Name: James Lillie Title: President and COO AGREED TO AND ACCEPTED BY: BERKHSIRE INVESTORS LLC By: /s/ Richard K. Lubin -------------------------------------- Name: Richard K. Lubin Title: Managing Director BERKHSIRE FUND IV, LIMITED PARTNERSHIP By: /s/ Richard K. Lubin --------------------------------------- Name: Richard K. Lubin Title: Managing Director Fourth Berkshire Associates LLC Its general partner BERKHSIRE FUND V, LIMITED PARTNERSHIP By: /s/ Richard K. Lubin ----------------------------------- Name: Richard K. Lubin Title: Managing Director Fifth Berkshire Associates LLC Its general partner SCHEDULE A
NAME OF ENTITY NUMBER OF SHARES OF NUMBER OF SHARES OF COMMON TOTAL PURCHASE PRICE AT U.S. COMMON STOCK HELD STOCK TO BE SOLD IN STOCK $25.00 PER SHARE (SEE WIRE REPURCHASE TRANSFER INSTRUCTIONS BELOW) Berkshire Investors LLC 408,778 181,818 $4,545,450 Berkshire Fund IV, Limited 2,886,474 1,283,860 32,096,500 Partnership Berkshire Fund V, Limited 1,201,306 534,322 13,358,050 Partnership TOTAL 4,496,558 2,000,000 $50,000,000
STOCK CERTIFICATE DELIVERY INSTRUCTIONS STOCK CERTIFICATES RE-ISSUED BY THE COMPANY'S TRANSFER AGENT AFTER GIVING EFFECT TOP THE STOCK REPURCHASE SHOULD BE DELIVERED TO: - -------------------------------------------------------------------------------- KENNETH BRING BERKSHIRE PARTNERS ONE BOSTON PLACE, 33RD FLOOR BOSTON, MA 02108 - -------------------------------------------------------------------------------- WIRE PAYMENT INSTRUCTIONS THE COMPANY SHOULD WIRE TRANSFER ONLY U.S. DOLLARS TO:
PAYMENT TO: BANK/ADDRESS ROUTING NUMBER ACCOUNT NAME ACCOUNT NUMBER BANK CONTACT Berkshire Investors Bank of America 026 009 593 Berkshire Investors LLC 0093 7396 6669 Ana Cerquiera New York, NY 617-434-4704 Berkshire Fund IV Bank of America 026 009 593 Berkshire Fund IV, 0093 7540 7887 Ana Cerquiera New York, NY Limited Partnership 617-434-4703 Berkshire Fund V Bank of America 026 009 593 Berkshire Fund V, 0094 1584 8362 Ana Cerquiera New York, NY Limited Partnership 617-434-4703
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