-----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, QVWbjJdbQXy8YnZ5SF5exhghGGlLncuVyelge67p8UQHIfdN3SIAjri+Whng7Mzu IxVUpyrRVIYV06Ip6zPPJQ== 0000950135-05-004248.txt : 20050728 0000950135-05-004248.hdr.sgml : 20050728 20050728154850 ACCESSION NUMBER: 0000950135-05-004248 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20050728 DATE AS OF CHANGE: 20050728 GROUP MEMBERS: BERKSHIRE FUND IV, LIMITED PARTNERSHIP GROUP MEMBERS: BERKSHIRE INVESTORS LLC 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 BUSINESS ADDRESS: STREET 1: ONE BOSTON PLACE CITY: BOSTON STATE: MA ZIP: 02108 BUSINESS PHONE: 6172270050 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 SEC ACT: 1934 Act SEC FILE NUMBER: 005-45375 FILM NUMBER: 05981103 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 SC 13D 1 b56081bssc13d.txt SC 13D 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) JARDEN CORPORATION -------------------------------------------------- (Name of Issuer) Common Stock, par value $.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) July 18, 2005 - -------------------------------------------------------------------------------- (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 9 Pages CUSIP NO. 471109 10 8 Page 2 of 9 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 2,886,474 SHARES -------------------------------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER OWNED BY EACH -------------------------------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER PERSON 2,886,474 WITH -------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 2,886,474 - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ] EXCLUDES CERTAIN SHARES - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 5.6%* - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- * See Item 5 for calculation. 2 CUSIP NO. 471109 10 8 Page 3 of 9 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 1,201,306 SHARES -------------------------------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER OWNED BY EACH -------------------------------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER PERSON 1,201,306 WITH -------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 1,201,306 - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ] EXCLUDES CERTAIN SHARES - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.3%* - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON PN - -------------------------------------------------------------------------------- * See Item 5 for calculation. 3 CUSIP NO. 471109 10 8 Page 4 of 9 pages SCHEDULE 13D - -------------------------------------------------------------------------------- 1. NAME OF REPORTING PERSONS 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 408,778 SHARES -------------------------------------------------------------- BENEFICIALLY 8. SHARED VOTING POWER OWNED BY EACH -------------------------------------------------------------- REPORTING 9. SOLE DISPOSITIVE POWER PERSON 408,778 WITH -------------------------------------------------------------- 10. SHARED DISPOSITIVE POWER - -------------------------------------------------------------------------------- 11. AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 408,778 - -------------------------------------------------------------------------------- 12. CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) [ ] EXCLUDES CERTAIN SHARES - -------------------------------------------------------------------------------- 13. PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 0.8%* - -------------------------------------------------------------------------------- 14. TYPE OF REPORTING PERSON OO - -------------------------------------------------------------------------------- * See Item 5 for calculation. 4 ITEM 1. SECURITY AND ISSUER The securities covered by this Schedule 13D are shares of common stock, $0.01 par value (the "Common Stock"), of Jarden Corporation, a Delaware corporation (the "Company"). The Company's principal executive offices are located at 555 Theodore Fremd Avenue, Rye, New York 10580. ITEM 2. IDENTITY AND BACKGROUND (a) Name This Schedule 13D 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." Fourth Berkshire Associates LLC, a Massachusetts limited liability company ("Fourth Berkshire"), is the general partner of Fund IV. Fifth Berkshire Associates LLC, a Massachusetts limited liability company ("Fifth Berkshire"), is the general partner of Fund V. The managing members of Fourth Berkshire are: Bradley M. Bloom, J. Christopher Clifford, Kevin T. Callaghan, Richard K. Lubin, Carl Ferenbach, Jane Brock-Wilson, David R. Peeler, Robert J. Small, and Ross M. Jones (the "Berkshire Principals"). The Berkshire Principals also serve as the managing members of Fifth Berkshire and Berkshire Investors. The Reporting Persons often make acquisitions or dispositions of securities of an issuer on the same terms and conditions and at the same time. Based on the foregoing, and the relationships described herein, the Reporting Persons may be deemed to constitute a "group" for purposes of Section 13(d)(3) of the Securities Exchange Act of 1934 (the "Exchange Act"). The filing of this statement shall not be construed as an admission that the Reporting Persons are a group, or have agreed to act as a group. (b) Principal Business The principal business of Berkshire is to make investments in, buy, sell, hold, pledge, assign and otherwise deal in securities. The principal business of Fourth Berkshire is to act as general partner of Fund IV. The principal business of Fifth Berkshire is to act as general partner of Fund V and certain other affiliated funds. The principal occupation of each of the Berkshire Principals is Managing Director of Berkshire Partners LLC, a Massachusetts limited liability company which serves as the management company for Berkshire and its affiliates. (c) Principal Address The following address is the business address of each of the Berkshire Principals and the address of the principal executive offices and principal business of Fund IV, Fund V, Berkshire Investors, Fourth Berkshire and Fifth Berkshire: One Boston Place, Suite 3300, Boston, Massachusetts 02108 (in the case of the Berkshire Principals, c/o Berkshire Partners LLC). (d and e) No Convictions or Proceedings During the last five years, none of the Reporting Persons, Fourth Berkshire, Fifth Berkshire, or the Berkshire Principals, nor any of their executive officers, directors, or partners, as applicable: (i) has been convicted in any criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction resulting in their being subject to a judgment, decree, or final order enjoining future violations of, or 5 prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. (f) Citizenship Each of Fund IV, Fund V, Berkshire Investors, Fourth Berkshire, and Fifth Berkshire is organized under the laws of The Commonwealth of Massachusetts. Each of the Berkshire Principals is a citizen of the United States. ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION Prior to the transactions described herein, Berkshire was a principal stockholder of The Holmes Group, Inc., a Massachusetts corporation ("Holmes"). Pursuant to an Agreement and Plan of Merger dated as of June 28, 2005 (the "Merger Agreement"), the Company acquired Holmes through the merger of Holmes with and into a subsidiary of Company, in exchange for cash and shares of Common Stock. The consideration used by Berkshire to acquire the 4,496,558 aggregate shares of Common Stock reported in this Schedule 13D (the "Merger Shares") consisted of a portion of the common stock of Holmes owned by Berkshire. ITEM 4. PURPOSE OF TRANSACTION As set forth in response to Item 3 above, the acquisition of Holmes by the Company pursuant to the Merger Agreement was consummated on July 18, 2005. The Merger Shares were issued to Berkshire as partial consideration for Berkshire's equity interest in Holmes. In addition to the Merger Shares, Berkshire also received cash consideration under the Merger Agreement as follows: (a) Fund IV received $24,923,188; (b) Fund V received $10,372,648; and (c) Berkshire Investors received $3,529,585. The Merger Shares are being held for investment purposes. Berkshire will continue to monitor and evaluate its investment in the Company in light of pertinent factors, including without limitation the following: (a) the trading market for the Common Stock; (b) the Company's business, operations, assets, financial condition and prospects; and (c) financial market, general economic and other conditions. In light of the foregoing factors, and Berkshire's plans and requirements from time to time, Berkshire may decide to dispose of some or all of the Merger Shares, or acquire additional shares of Common Stock or other securities of the Company. Except as described herein and in the agreements referenced herein, Berkshire currently has no plans or proposals that relate to or would result in: (i) an extraordinary corporate transaction, such as a merger, reorganization or liquidation, involving the Company or any of its subsidiaries; (ii) a sale or transfer of a material amount of assets of the Company or of any of its subsidiaries; (iii) any change in the present board of directors or management of the Company, including any plans or proposals to change the number or term of directors; (iv) any material change in the present capitalization or dividend policy of the Company; (v) any other material change in the Company's business or corporate structure; (vi) changes in the Company's charter, bylaws or instruments corresponding thereto or other actions which may impede the acquisition of control of the Company by any person; (vii) causing a class of securities of the Company to be delisted from a national securities exchange or to cease to be authorized to be quoted in an inter-dealer quotation system of a registered national securities association; (viii) a class of equity securities of the Company becoming eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act; or (ix) any action similar to any of those enumerated above. ITEM 5. INTEREST IN SECURITIES (a) and (b) The Company has advised Berkshire that as of the close of business on July 26, 2005, there were 51,380,467 shares of Common Stock outstanding. Accordingly, the shares of Common 6 Stock beneficially owned by Berkshire, in the aggregate, represent approximately 8.7% 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. 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, 2,886,474 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, 1,201,306 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. (3) Berkshire Investors has sole voting power and dispositive with respect to, and is the beneficial owner of, 408,778 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 Pursuant to the Merger Agreement, an aggregate of 453,726 of the Merger Shares, representing approximately 10.1% of the aggregate number of shares of Common Stock beneficially owned by each of the Reporting Persons, have been deposited into escrow in order to satisfy certain post-closing adjustments and potential indemnification obligations of the Reporting Persons under the Merger Agreement. 7 In connection with the Merger Agreement, Berkshire and certain other Holmes stockholders also entered into a Registration Rights Agreement dated June 28, 2005 (the "Registration Rights Agreement"). Under the Registration Rights Agreement, the Company agreed to file a registration statement with the Securities and Exchange Commission (the "Commission") no later than November 15, 2005 to register the Merger Shares for resale. The Company must use commercially reasonable efforts to cause the registration statement to be declared effective by the Commission and to remain so for a period of not more than three years. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS 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. 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: July 28, 2005 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 9 EX-99.1 2 b56081bsexv99w1.txt EX-99.1 JOINT FILING UNDERTAKING DATED AS OF JULY 28, 2005 EXHIBIT 99.1 JOINT FILING UNDERTAKING The undersigned, being duly authorized thereunto, hereby execute this agreement as an exhibit to this 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 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: July 28, 2005 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-99.3 3 b56081bsexv99w3.txt EX-99.3 REGISTRATION RIGHTS AGREEMENT DATED JUNE 28, 2005 EXECUTION COPY EXHIBIT 99.3 REGISTRATION RIGHTS AGREEMENT This Registration Rights Agreement (this "Agreement") is entered into as of June 28, 2005 by and among: (i) Jarden Corporation, a Delaware corporation (the "Company"); (ii) The Jordan A. Kahn Family Limited Partnership, a Delaware limited partnership ("Kahn FLP"), (iii) Jordan A. Kahn ("Kahn"); (iv) Berkshire Investors LLC, a Delaware limited liability company ("Berkshire LLC"); (v) Berkshire Fund IV, Limited Partnership, a Delaware limited partnership ("Berkshire IV"); (vi) Berkshire Fund V, Limited Partnership, a Delaware limited partnership ("Berkshire V"); and (vii) the other AI Shareholders (as defined in the Merger Agreement) who became parties hereto by signing a joinder signature page and are holders of Shares (collectively, the "Other Holders", and together with Kahn FLP, Kahn, Berkshire LLC, Berkshire IV and Berkshire V, the "Specified Holders"). WHEREAS, this Agreement is made in connection with the Agreement and Plan of Merger, dated as of June 28, 2005 (the "Merger Agreement"), among the Company, The Holmes Group, Inc., a Massachusetts corporation, and the Specified Holders, among other parties; and WHEREAS, in order to induce Company to enter into the Merger Agreement and consummate the Merger, the Specified Holders have agreed to accept part of the Merger Consideration in the form of Shares (as defined below); and WHEREAS, in order to induce the Specified Holders to accept part of the Merger Consideration in the form of Shares, the Company has agreed to provide the registration rights set forth in this Agreement; WHEREAS, the execution of this Agreement by the Specified Parties is a condition to Closing under the Merger Agreement; and WHEREAS, the Specified Holders have appointed and delegated Berkshire Partners, LLC, as Shareholders' Representative in the Merger Agreement (the "Shareholders' Representative") as its agent for certain matters, including the receipt of certain notifications and the authorization of certain acts contemplated hereby. NOW, THEREFORE, in consideration of the foregoing and the representations, warranties, covenants and agreements set forth herein, the parties hereby agree as follows: 1. Definitions Capitalized terms used herein without definition have the respective meanings set forth in the Merger Agreement. As used in this Agreement, the following terms have the following meanings: Exchange Act: The Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder. Prospectus: The prospectus included in any Registration Statement (including, without limitation, a prospectus that discloses information previously omitted from a prospectus filed as part of an effective registration statement in reliance upon Securities Act Rule 430A), 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 such Registration Statement and all other amendments and supplements to such prospectus, including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such prospectus. Registrable Securities: All Shares and any securities issued or issuable in respect of any of the Shares pursuant to any stock split, stock dividend, recapitalization, or similar event, provided, that a security shall cease to be a Registerable Security upon (A) sale pursuant to a Registration Statement or Rule 144 under the Securities Act or other exemption from registration under the Securities Act or (B) such security becomes eligible for sale by the Specified Holders pursuant to Rule 144(k). Registration Expenses: All expenses in connection with the performance of or compliance with Sections 2 and 3 hereof by the Company (other than selling commissions, brokerage discounts and fees of counsel, accountants or advisors of the Specified Holders, except as provided in 4(c)) including, without limitation, all registration and filing fees, printing expenses, listing fees, fees and disbursements of counsel and accountants for the Company, blue sky fees and expenses; provided, however, that the Company shall pay 50% of the Specified Holders' fees of counsel up to a maximum amount of $5,000. Registration Statement: Any registration statement of the Company filed under the Securities Act that covers any of the Registrable Securities pursuant to the provisions of this Agreement, including, without limitation, the Prospectus, amendments and supplements to such registration statement (including, without limitation, post-effective amendments), all exhibits, and all material incorporated by reference or deemed to be incorporated reference in such registration statement. Rule 144: Rule 144 under the Securities Act, as such Rule may be amended from time to time, or any similar rule or regulation hereafter adopted by the SEC having substantially the same effect as such Rule (excluding Rule 144A). Securities Act: The Securities Act of 1933, as amended, and the rules and regulations promulgated by the SEC thereunder. SEC: Securities and Exchange Commission. Shares: The Purchaser Common Stock comprising Stock Consideration issued to (i) each of the Specified Holders that become an AI Shareholder pursuant to the Merger Agreement on or prior to the Closing Date and (ii) such other AI Shareholders as Purchaser shall, in its sole discretion, designate in writing. 2. Registration (a) Registration of Registrable Securities. The Company shall use its commercially reasonable efforts to prepare and file with the SEC a Registration Statement for an offering to be made on a continuous basis pursuant to Rule 415 (or any appropriate similar rule that may be adopted by the SEC) under the Securities Act covering the Registrable Securities (the "Registration"), provided that in no event shall the Company fail to file the Registration Statement later than November 15, 2005 (the date of such filing being the "Filing Date"). The Registration shall be on an appropriate form permitting registration of such Registrable Securities for resale by the Specified Holders. (b) Effectiveness. Upon filing of the Registration Statement, the Company shall use its commercially reasonable efforts to cause the Registration to be declared effective under the Securities Act (the date of effectiveness being the "Effective Date") and to remain continuously effective for a period of three years thereafter (the "Registration Period"). Without limiting the foregoing, except as provided herein, the Company will prepare and file with the SEC, as promptly as is reasonably practicable, such amendments and supplements to any Registration Statement as may be necessary to keep such Registration Statement continuously effective through the Registration Period. 3. Expenses and Procedures (a) Expenses of Registration. The Company shall pay all Registration Expenses. Selling commissions, brokerage discounts and fees of counsel (except as provided in Section 4(c)) and advisors for the Specified Holders shall be paid solely by the Specified Holders; provided, however, that the Company shall pay 50% of the Specified Holders' fees of counsel up to a maximum amount of $5,000. (b) Registration Procedures. Subject to compliance by the Company with applicable securities laws, rules and regulations, and the rules and regulations of the primary exchange on which Company Common Stock is listed, in the case of each registration, qualification or compliance effected by the Company pursuant to Section 2 hereof: (i) The Company will keep the Shareholders' Representative advised as to the initiation of registration, qualification and compliance and as to the completion thereof. At its own expense, the Company will furnish to the Shareholders' Representative such number of copies of the Registration Statement and all other documents incident thereto as the Shareholders' Representative from time to time may reasonably request. (ii) To the extent necessary for the disposition of the Shares, the Company will use its commercially reasonable efforts to register or qualify any Registrable Securities under such state securities or blue sky laws of such jurisdictions as the Specified Holders or the Shareholders' Representative shall reasonably request, and do any and all other acts and things which may be necessary or advisable to enable each Specified Holder to consummate the disposition in such jurisdictions of its Registrable Securities covered by the Registration Statement; provided, however, that the Company shall not be obligated to file any general consent to service of process or to qualify as a foreign corporation or subject the Company to taxation in any jurisdiction in which it is not so qualified or subject. (iii) For so long as any Specified Holder owns Registrable Securities covered by any Registration Statement the Company will promptly notify the Shareholders' Representative, at any time when a Prospectus relating thereto is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such Registration Statement, as then in effect, includes 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 not misleading in the light of the circumstances then existing, and at the request of the Shareholders' Representative prepare and furnish to the Shareholders' Representative, a reasonable number of copies of a supplement to or an amendment of such Prospectus as may be necessary so that, as thereafter delivered to the purchasers of such Registrable Securities, such 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 not misleading in the light of the circumstances then existing. (iv) The Company will use its commercially reasonable efforts to list such Registrable Securities on the primary securities exchange on which the Company Common Stock is then listed and to cause such Registrable Securities to remain listed on any such national securities exchange during the Registration Period. (v) The Company will provide a transfer agent and registrar for all Registrable Securities on or before the Effective Date. (vi) In connection with the preparation and filing of the Registration Statement, and before filing the Registration Statement, the Company will give the Shareholders' Representative, the Specified Holders and their respective counsel and accountants, the reasonable opportunity to review the Registration Statement, each Prospectus included therein or filed or to be filed with the SEC, each amendment thereof or supplement thereto and give each of the aforementioned Persons such opportunities to discuss the business of the Company with its officers as shall be reasonably necessary to conduct a reasonable investigation within the meaning of the Securities Act. (vii) In the event of any underwritten public offering, the Company will enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing underwriter of such offering. (c) Information. The Company may require each seller of Registrable Securities as to which any registration is being effected to furnish such information regarding the distribution of such Registrable Securities as the Company may from time to time reasonably request, and the Company may exclude from such registration the Registrable Securities of any seller who unreasonably fails to furnish such information after receiving such request. Such information shall be true and complete and it shall not contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading. (d) Delay or Suspension. Notwithstanding anything herein to the contrary, the Company may, at any time, suspend the effectiveness of any Registration Statement for a period of not more than 45 days in the aggregate in any period of twelve consecutive calendar months (a "Suspension Period") by giving notice to the Specified Holders and/or the Shareholders' Representative, if the Company shall have determined that the Company may be required to disclose any material corporate development which disclosure may have a material adverse effect on the Company. The Specified Holders agree by acquisition of such Registrable Securities that, upon receipt of any notice from the Company of a Suspension Period, the Specified Holders shall forthwith discontinue disposition of such Registrable Securities under such Registration Statement or Prospectus until the Specified Holders (i) are advised in writing by the Company that the use of the applicable Prospectus may be resumed, (ii) have received copies of a supplemental or amended prospectus, if applicable, and (iii) have received copies of any additional or supplemental filings which are incorporated or deemed to be incorporated by reference in such Prospectus. The Company shall prepare, file and furnish to the Shareholders' Representative promptly upon the expiration of any Suspension Period, appropriate supplements or amendments, if applicable, to the Prospectus and appropriate documents, if applicable, incorporated by reference in the Registration Statement. 4. Indemnification (a) Indemnification by the Company. The Company shall indemnify and hold harmless, to the fullest extent permitted by law, the Specified Holders, their respective officers, directors, stockholders, partners, members, managers, advisors, agents and employees, each person who controls any Specified Holder (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act), and the officers, directors, stockholders, partners, members, managers, advisors, agents and employees of any such controlling person, from and against all losses, claims, damages, liabilities, costs (including, without limitation, all reasonable attorneys' fees) and expenses (collectively, "Losses"), as incurred, arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained or incorporated by reference in any Registration Statement, Prospectus or preliminary prospectus, or arising out of or based upon any omission or alleged omission of 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 (in the case of any Prospectus) not misleading, except to the extent such untrue statement or omission is contained in any information furnished in writing by a Specified Holder to the Company specifically for use in such Registration Statement, Prospectus or preliminary prospectus or any amendment or supplement thereto; provided, however, that the Company shall not be liable in any such case to the extent that any such Loss arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus or Prospectus if (i) such Specified Holder failed to send or deliver a copy of the Prospectus or Prospectus supplement with or prior to the delivery of written confirmation of the sale of Registrable Securities, and the Prospectus or any supplement thereto would have corrected such untrue statement or omission or (ii) such Specified Holder sends or delivers a copy of the Prospectus or any supplement thereto after receiving written notification from the Company that the Prospectus or any such supplement contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading. If requested, the Company shall also indemnify selling brokers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Specified Holders. Such indemnifications shall remain in full force and effect regardless of any investigation made by or on behalf of any Specified Holder and any of its officers, directors, stockholders, partners, members, managers, advisors, agents, employees or controlling persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) after the date hereof and shall survive any transfer of Registrable Securities. (b) Indemnification by the Specified Holders. Each Specified Holder hereby severally, and not jointly (provided, that any claims against Berkshire LLC, Berkshire IV or Berkshire V shall be the joint and several obligations of each and such parties and proved further that any claims against Kahn or Kahn FLP V shall be the joint and several obligations of each and such parties), agrees to indemnify and hold harmless, to the fullest extent permitted by law, the Company, its officers, directors, stockholders, partners, members, managers, advisors, agents and employees, each person who controls the Company (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) and the officers, directors, stockholders, partners, members, managers, advisors, agents and employees of any such controlling person, from and against all Losses arising out of or based upon (y) any untrue statement of a material fact contained or incorporated by reference in any Registration Statement, Prospectus or preliminary prospectus, or arising out of or based upon any omission of 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 (in the case of any Prospectus) not misleading, to the extent, but only to the extent, that such untrue statement or omission is contained in any information furnished in writing by a Specified Holder to the Company specifically for use in such Registration Statement, Prospectus or preliminary prospectus or any amendment or supplement thereto or (z) such Specified Holder sending or delivering a copy of the Prospectus or any supplement thereto to another party after receiving written notification from the Company that the Prospectus or any such supplement contains an untrue statement of a material fact or omits to state a material fact necessary in order to make the statements made, in the light of the circumstances under which they were made, not misleading. If requested, each Specified Holder shall also indemnify selling brokers and similar securities industry professionals participating in the distribution, their officers, directors, agents and employees and each person who controls such persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Company. The Company shall be entitled to receive indemnities from accountants, underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution to the same extent as provided above with respect to information so furnished by such persons for inclusion in any Registration Statement, Prospectus or preliminary prospectus, provided that the failure of the Company to obtain any such indemnity shall not relieve the Company of any of its obligations hereunder. Such indemnifications shall remain in full force and effect regardless of any investigation made by or on behalf of the Company of the information provided by the Specified Holders, or [Larry] or any Subsidiary of [Larry] prior to Closing, and any of their respective officers, directors, stockholders, partners, members, managers, advisors, agents, employees or controlling persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) before or after the date hereof and shall survive any transfer of Registrable Securities. (c) Conduct of Indemnification Proceedings. If any action or proceeding (including any governmental investigation or inquiry) shall be brought or any claim shall be asserted against, without limitation, any Person entitled to indemnity hereunder (an "Indemnified Party"), such Indemnified Party shall promptly notify the party from which such indemnity is sought (the "Indemnifying Party") in writing, and the Indemnifying Party shall assume the defense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all fees and expenses incurred in connection with the defense thereof; provided, however, that the failure or delay of an Indemnified Party to so notify the Indemnifying Party shall release the Indemnifying Party from its obligations hereunder only if and then only to the extent the Indemnifying Party is prejudiced by such failure or delay. All such fees and expenses (including, without limitation, any fees and expenses incurred in connection with investigating or preparing to defend such action or proceeding) shall be paid to the Indemnified Party, as incurred, within 20 days of written notice thereof to the Indemnifying Party; provided, however, that if the Indemnifying Party is subsequently determined not to have been liable to the Indemnified Party in accordance with this Section 4, such fees and expenses shall be returned promptly to the Indemnifying Party. Any such Indemnified Party shall have the right to employ separate counsel if any such action, claim or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be borne solely by such Indemnified Party unless (i) the Indemnifying Party has agreed to pay such fees and expenses, (ii) the Indemnifying Party shall have failed promptly to assume the defense of such action, claim or proceeding and to employ counsel reasonably satisfactory to the Indemnified Party in any such action, claim or proceeding, or (iii) the named parties to any such action, claim or proceeding (including any impleaded parties) include both such Indemnified Party and the Indemnifying Party, and such Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to it that are different from or additional to those available to the Indemnifying Party (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel at the expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense of such action, claim or proceeding on behalf of such indemnified party, it being understood, however, that the Indemnifying Party shall not, in connection with any one such action, claim or proceeding or separate but substantially similar or related actions, claims or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the fees and expenses of more than one counsel (together with appropriate local counsel) at any time for all such Indemnified Parties unless in the opinion of counsel for such Indemnified Party a conflict of interest may exist between such Indemnified Party and any other of such Indemnified Parties, or among any of such Indemnified Parties, with respect to such action, claim or proceeding, in which event the Indemnifying Party shall be obligated to pay the fees and expenses of such additional counsel or counsels). No Indemnifying Party will consent to entry of any judgment or enter into any settlement that does not include as an unconditional term thereof the release of such Indemnified Party from all liability in respect to such claim or litigation without the written consent (which consent will not be unreasonably withheld) of the indemnified party. No Indemnified Party shall consent to entry of any judgment or enter into any settlement without the written consent (which consent will not be unreasonably withheld) of the Indemnifying Party from which indemnity or contribution is sought. (d) Contribution. If the indemnification provided for in this Section 4 is unavailable to an Indemnified Party under Section 4(a) or (b) hereof (other than by reason of exceptions provided in those Sections) in respect of any Losses, 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 (a) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and Indemnified Party in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitable considerations, or (b) if the allocation provided by clause (a) above is not permitted under applicable law or provides a lesser sum to the Indemnified Party than the amount payable hereunder, in the proportion as is appropriate to reflect not only the relative fault of the Indemnifying Party and the Indemnified Party, but also the relative benefits received by the Indemnifying Party on the one hand and the Indemnified Party on the other, as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party and the Indemnified Party shall be determined by reference to, among other things, whether any action in question, including any untrue statement or alleged untrue statement of a material fact or omission or alleged omission of a material fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party or Indemnified Party, and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include, subject to the limitations set forth in Section 4(c) hereof, any legal or other fees or expenses reasonably incurred by such party in connection with any action, suit, claim, investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 4(d) were determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to in the immediately preceding paragraph. 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. (e) Limitation. In no event shall the liability of any Specified Holder under this Section 4, whether by way of indemnification or contribution, exceed the net proceeds to such Specified Holder from the sale of Registrable Securities pursuant to such Registration Statement. (f) Survival. This Article 4 shall survive any termination or expiration of this Agreement. 5. Reports Under Exchange Act With a view to making available to the Specified Holders the benefits of Rule 144 or any successor rule adopted by the SEC, in the event the Company's Registration Statement with respect to the Shares is not then effective with the SEC, the Company agrees to: (a) use its commercially reasonable efforts to make and keep public information available, as those terms are understood and defined in Rule 144; (b) use its commercially reasonable efforts to file with the SEC in a timely manner all reports and other documents required of the Company under the Securities Act or the Exchange Act; and (c) furnish to any Specified Holder within a reasonable time following receipt of a written request therefor (1) a written statement by the Company as to its compliance with the reporting requirements of Rule 144, the Securities Act and the Exchange Act, (2) a copy of the most recent annual or quarterly report of the Company and such other reports and documents so filed by the Company, and (3) such other information as may be reasonably requested in availing any Specified Holder to sell Shares pursuant to Rule 144. 6. Miscellaneous (a) Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be waived, amended, modified or supplemented without the written consent of the Shareholders' Representative or of Specified Holders holding at least a majority in interest of the Registrable Securities. No waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any other provision hereof (whether or not similar), shall constitute a continuing waiver unless otherwise expressly provided nor shall be effective unless in writing and executed by the waiving party. (b) Notices. All notices and other communications provided for or permitted hereunder shall be made in writing by hand-delivery, registered first-class mail, next day air courier or telecopy: (i) if to a Specified Holder, initially to Shareholders' Representative, Berkshire Partners LLC, One Boston Place, Boston, MA 02108 , telecopier no. (617) 227-6105, attention Richard Lubin and to such Specified Holder at the address that may be set forth beneath its name on the signature page hereto, with a copy to Posternak Blankstein & Lund LLP, Prudential Tower, 800 Boylston Street, Boston, MA 02199-8004, telecopier no. (617) 367-2315, attn: Donald H. Siegel, P.C.; and (ii) if to the Company, initially at One Holmes Way, Milford, Massachusetts 01757, telecopier no. 508-634-7942, attention Jerry A. Kahn, with a copy to Kane Kessler, P.C., 1350 Avenue of the Americas, New York, NY 10019, telecopier no. (212) 245-3009, attention Robert L. Lawrence, Esq. and Mitchell D. Hollander, Esq.; and thereafter at such other address, notice of which is given in accordance with the provisions of this Section 7(b). All such notices and communications shall be deemed to have been duly given: (i) when delivered by hand, if personally delivered; (ii) two business days after being deposited in the mail, postage prepaid, if mailed; (iii) one business day after being sent by next day air courier; and (iv) when receipt acknowledged, if telecopied. (c) 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. Each Other Holder shall become a party hereto by signing a Joinder Signature Page to this Agreement. (d) Headings. The headings in his Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. (e) Governing Law; Venue. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND PERFORMED IN SUCH STATE AND WITHOUT REGARD TO CONFLICTS OF LAW DOCTRINES. EACH PARTY TO THIS AGREEMENT, BY ITS EXECUTION HEREOF, (I) HEREBY IRREVOCABLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK (OR IF JURISDICTION THERETO IS NOT PERMITTED BY LAW, THE STATE COURTS OF THE STATE OF NEW YORK LOCATED IN NEW YORK COUNTY) FOR THE PURPOSE OF ANY ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT, TORT OR OTHERWISE), INQUIRY PROCEEDING OR INVESTIGATION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF, (II) HEREBY WAIVES TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW, AND AGREES NOT TO ASSERT BY WAY OF MOTION, AS A DEFENSE OR OTHERWISE, IN ANY SUCH ACTION, ANY CLAIM THAT IT IS NOT SUBJECT PERSONALLY TO THE JURISDICTION OF THE ABOVE-NAMED COURT, THAT ITS PROPERTY IS EXEMPT OR IMMUNE FROM ATTACHMENT OR EXECUTION, THAT ANY SUCH PROCEEDING BROUGHT IN ONE OF THE ABOVE-NAMED COURT IS IMPROPER, OR THAT THIS AGREEMENT OR THE SUBJECT MATTER HEREOF MAY NOT BE ENFORCED IN OR BY SUCH COURT AND (III) HEREBY AGREES NOT TO COMMENCE ANY ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT, TORT OR OTHERWISE), INQUIRY PROCEEDING OR INVESTIGATION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF OTHER THAN BEFORE THE ABOVE-NAMED COURT NOR TO MAKE ANY MOTION OR TAKE ANY OTHER ACTION SEEKING OR INTENDING TO CAUSE THE TRANSFER OR REMOVAL OF ANY SUCH ACTION, CLAIM, CAUSE OF ACTION OR SUIT (IN CONTRACT, TORT OR OTHERWISE), INQUIRY, PROCEEDING OR INVESTIGATION TO ANY COURT OTHER THAN THE ABOVE-NAMED COURT WHETHER ON THE GROUNDS OF INCONVENIENT FORUM OR OTHERWISE. EACH PARTY HEREBY CONSENTS TO SERVICE OF PROCESS IN ANY SUCH PROCEEDING IN ANY MANNER PERMITTED BY NEW YORK LAW, AND AGREES THAT SERVICE OF PROCESS BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT REQUESTED, AT ITS ADDRESS SPECIFIED PURSUANT TO SECTION 6(b) IS REASONABLY CALCULATED TO GIVE ACTUAL NOTICE. (f) Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their best efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision, covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remaining terms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, void or unenforceable. (g) Successors and Assigns. All of the terms and provisions of this Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted transferees and assigns (each of which transferees and assigns shall be deemed to be a Specified Holder for all purposes hereof); provided, however, that (a) no party may assign less than all of its rights and obligations hereunder; and (b) no Specified Holder may assign its rights hereunder unless (i) it transfers all Shares issued in its name to its proposed assignees and (ii) its proposed assignees assumes all of the obligations of such Specified Holder hereunder. The rights of the Specified Holders hereunder and under any Registration Statement may be also exercised by the Paying Agent (as defined in the Seller Contribution and Indemnity Agreement, referred to in the Merger Agreement) or its successor, acting in its capacity as agent for the Specified Holders. (h) Entire Agreement. This Agreement constitutes the entire agreement among the parties hereto pertaining to the subject matter hereof and supersede all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the parties with respect to such subject matter. (i) Waiver of Jury Trial. the parties hereby waive, and covenant that they will not assert (whether as plaintiff, defendant or otherwise), any right to trial by jury in any action arising in whole or in part under or in connection with this Agreement or any of the transactions contemplated hereby, whether now existing or hereafter arising, and whether sounding in contract, tort or otherwise. The parties agree that any of them may file a copy of this paragraph with any court as evidence of the knowing, voluntary and bargained-for agreement among the parties irrevocably to waive its right to trial by jury. [SIGNATURE PAGES FOLLOW] IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above. Company: JARDEN CORPORATION BY: /s/ Desiree DeStefano -------------------------------- Name: Desiree DeStefano Title: Executive Vice President of Finance Specified Holders: BERKSHIRE INVESTORS LLC BY: /s/ Jane Brock-Wilson -------------------------------- Name: Jane Brock-Wilson Title: Managing Member Address: One Boston Place, Boston, MA 02108 Facsimile No.: (617) 227-6105 BERKSHIRE FUND IV, LIMITED PARTNERSHIP By: Fourth Berkshire Associates LLC, General Partner BY: /s/ Jane Brock-Wilson -------------------------------- Name: Jane Brock-Wilson Title: Managing Member Address: One Boston Place, Boston, MA 02108 Facsimile No.: (617) 227-6105 (signature page continues) BERKSHIRE FUND V, LIMITED PARTNERSHIP By: Fifth Berkshire Associates LLC, General Partner BY: /s/ Jane Brock-Wilson --------------------------------- Name: Jane Brock-Wilson Title: Managing Member Address: One Boston Place, Boston, MA 02108 Facsimile No.: (617) 227-6105 /s/ Jordan A. Kahn ------------------------------------- JORDAN A. KAHN Address: 21 Pierce Avenue Wellesley, MA 02481 Facsimile No.: THE JORDAN A. KAHN FAMILY LIMITED PARTNERSHIP BY: /s/ Jordan A. Kahn --------------------------------- Name: Jordan A. Kahn, Title: General Partner Address: 21 Pierce Avenue Wellesley, MA 02481 Facsimile No.: OTHER HOLDERS: [See Separate Joinder Signature Pages] -----END PRIVACY-ENHANCED MESSAGE-----