-----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, DJa43K/dmJyXfDdvxpYulzSRgKPmc34iqcYyZ6AcofDcjdSuF5/OzJP/ewNI+fBZ oruDjxLI14WyT+1FjNGDTQ== 0000950136-02-002102.txt : 20020719 0000950136-02-002102.hdr.sgml : 20020719 20020718161705 ACCESSION NUMBER: 0000950136-02-002102 CONFORMED SUBMISSION TYPE: S-4/A PUBLIC DOCUMENT COUNT: 44 FILED AS OF DATE: 20020718 FILER: COMPANY DATA: COMPANY CONFORMED NAME: UNIMARK PLASTICS INC CENTRAL INDEX KEY: 0001177483 IRS NUMBER: 351773015 STATE OF INCORPORATION: IN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-89862-15 FILM NUMBER: 02705789 BUSINESS ADDRESS: STREET 1: 555 THEODORE FREMD AVE CITY: RYE STATE: NY ZIP: 10580 BUSINESS PHONE: 9149679400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TILIA INTERNATIONAL INC CENTRAL INDEX KEY: 0001177481 IRS NUMBER: 38364648 STATE OF INCORPORATION: IN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-89862-13 FILM NUMBER: 02705791 BUSINESS ADDRESS: STREET 1: 555 THEODORE FREMD AVE CITY: RYE STATE: NY ZIP: 10580 BUSINESS PHONE: 9149679400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TILIA DIRECT INC CENTRAL INDEX KEY: 0001177480 IRS NUMBER: 371424484 STATE OF INCORPORATION: IN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-89862-12 FILM NUMBER: 02705792 BUSINESS ADDRESS: STREET 1: 555 THEODORE FREMD AVE CITY: RYE STATE: NY ZIP: 10580 BUSINESS PHONE: 9149679400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: QUOIN CORP CENTRAL INDEX KEY: 0001177479 IRS NUMBER: 880374612 STATE OF INCORPORATION: IN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-89862-10 FILM NUMBER: 02705794 BUSINESS ADDRESS: STREET 1: 555 THEODORE FREMD AVE CITY: RYE STATE: NY ZIP: 10580 BUSINESS PHONE: 9149679400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: PENN VIDEO INC CENTRAL INDEX KEY: 0001177478 IRS NUMBER: 351692414 STATE OF INCORPORATION: IN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-89862-09 FILM NUMBER: 02705795 BUSINESS ADDRESS: STREET 1: 555 THEODORE FREMD AVE CITY: RYE STATE: NY ZIP: 10580 BUSINESS PHONE: 9149679400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: LUMENX CORP CENTRAL INDEX KEY: 0001177477 IRS NUMBER: 351894142 STATE OF INCORPORATION: IN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-89862-08 FILM NUMBER: 02705796 BUSINESS ADDRESS: STREET 1: 555 THEODORE FREMD AVE CITY: RYE STATE: NY ZIP: 10580 BUSINESS PHONE: 9149679400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: LAFAYETTE STEEL & ALUMINUM CORP CENTRAL INDEX KEY: 0001177476 IRS NUMBER: 362590615 STATE OF INCORPORATION: IN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-89862-07 FILM NUMBER: 02705797 BUSINESS ADDRESS: STREET 1: 555 THEODORE FREMD AVE CITY: RYE STATE: NY ZIP: 10580 BUSINESS PHONE: 9149679400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HEARTHMARK INC CENTRAL INDEX KEY: 0001177475 IRS NUMBER: 352000585 STATE OF INCORPORATION: IN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-89862-06 FILM NUMBER: 02705798 BUSINESS ADDRESS: STREET 1: 555 THEODORE FREMD AVE CITY: RYE STATE: NY ZIP: 10580 BUSINESS PHONE: 9149679400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ALLTRISTA ZINC PRODUCTS LP CENTRAL INDEX KEY: 0001177474 IRS NUMBER: 352000583 STATE OF INCORPORATION: IN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-89862-04 FILM NUMBER: 02705800 BUSINESS ADDRESS: STREET 1: 555 THEODORE FREMD AVE CITY: RYE STATE: NY ZIP: 10580 BUSINESS PHONE: 9149679400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ALLTRISTA UNIMARK INC CENTRAL INDEX KEY: 0001177473 IRS NUMBER: 351750028 STATE OF INCORPORATION: IN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-89862-03 FILM NUMBER: 02705801 BUSINESS ADDRESS: STREET 1: 555 THEODORE FREMD AVE CITY: RYE STATE: NY ZIP: 10580 BUSINESS PHONE: 9149679400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ALLTRISTA PLASTICS CORP CENTRAL INDEX KEY: 0001177472 IRS NUMBER: 352000584 STATE OF INCORPORATION: IN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-89862-02 FILM NUMBER: 02705802 BUSINESS ADDRESS: STREET 1: 555 THEODORE FREMD AVE CITY: RYE STATE: NY ZIP: 10580 BUSINESS PHONE: 9149679400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TRIENDA CORP CENTRAL INDEX KEY: 0001177482 IRS NUMBER: 352071043 STATE OF INCORPORATION: IN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-89862-14 FILM NUMBER: 02705804 BUSINESS ADDRESS: STREET 1: 555 THEODORE FREMD AVE CITY: RYE STATE: NY ZIP: 10580 BUSINESS PHONE: 9149679400 FILER: COMPANY DATA: COMPANY CONFORMED NAME: JARDEN CORP CENTRAL INDEX KEY: 0000895655 STANDARD INDUSTRIAL CLASSIFICATION: PLASTICS PRODUCTS, NEC [3089] IRS NUMBER: 351828377 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-89862 FILM NUMBER: 02705790 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 FILER: COMPANY DATA: COMPANY CONFORMED NAME: TILIA INC CENTRAL INDEX KEY: 0000874601 IRS NUMBER: 364491807 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-89862-11 FILM NUMBER: 02705793 BUSINESS ADDRESS: STREET 1: 555 THEODORE FRAMD CITY: RYE STATE: NY ZIP: 10580 BUSINESS PHONE: 9149679400 MAIL ADDRESS: STREET 1: 555 THEODORE FRAMD AVE CITY: RYE STATE: NY ZIP: 10580 FILER: COMPANY DATA: COMPANY CONFORMED NAME: CASPERS TIN PLATE CO CENTRAL INDEX KEY: 0000018128 IRS NUMBER: 351289006 STATE OF INCORPORATION: IL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-89862-05 FILM NUMBER: 02705799 BUSINESS ADDRESS: STREET 1: 555 THEODORE FRAMD AVENUE CITY: RYE STATE: NY ZIP: 10580 BUSINESS PHONE: 2149679400 MAIL ADDRESS: STREET 1: 555 THEODORE FRAMD AVENUE CITY: RYE STATE: NY ZIP: 10580 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ALLTRISTA NEWCO CORP CENTRAL INDEX KEY: 0001177471 IRS NUMBER: 352000581 STATE OF INCORPORATION: IN FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: S-4/A SEC ACT: 1933 Act SEC FILE NUMBER: 333-89862-01 FILM NUMBER: 02705803 BUSINESS ADDRESS: STREET 1: 555 THEODORE FREMD AVE CITY: RYE STATE: NY ZIP: 10580 BUSINESS PHONE: 9149679400 MAIL ADDRESS: STREET 1: 555 THEODORE FRAMD AVE CITY: RYE STATE: NY ZIP: 10580 S-4/A 1 file001.txt AMENDED REGISTRATION STATEMENT ON FORM S-4 As filed with the Securities and Exchange Commission on July 18, 2002 Registration File No.: 333-89862 - -------------------------------------------------------------------------------- UNITED STATES SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 AMENDMENT NO. 1 TO FORM S-4 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 JARDEN CORPORATION (Exact name of registrant as specified in charter)
DELAWARE 4229 35-1828377 (State or other jurisdiction (Primary Standard Industrial (I.R.S.Employer of incorporation or organization) Classification Code Numbers) Identification No.)
555 THEODORE FREMD AVENUE RYE, NY 10580 (914) 967-9400 (Address, including zip code and telephone number, including area code, of registrant's principal executive offices) MARTIN E. FRANKLIN, CHAIRMAN AND CHIEF EXECUTIVE OFFICER JARDEN CORPORATION 555 THEODORE FREMD AVENUE RYE, NY 10580 (914) 967-9400 (Name, Address, including zip code and telephone number, including area code, of agent for service of process) with copies to: ROBERT L. LAWRENCE, ESQ. KANE KESSLER, P.C. 1350 AVENUE OF THE AMERICAS NEW YORK, NY 10019 (212) 541-6222 - -------------------------------------------------------------------------------- APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as practicable after the effective date of this registration statement. If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General instruction G, check the following box. [ ] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration number for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] ----------------------------------- The Registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the Registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine. TABLE OF ADDITIONAL REGISTRANTS
- -------------------------------------------------------------------------------------------------------------------------- ADDRESS, INCLUDING STATE OR OTHER ZIP CODE AND JURISDICTION I.R.S.EMPLOYER TELEPHONE NUMBER, OF INCORPORATION IDENTIFICATION INCLUDING AREA NAME OR ORGANIZATION NUMBER CODE - ---------------------------------------------- ---------------------------- ------------------------ --------------------- Alltrista Newco Corporation Indiana 35-2000581 * - ---------------------------------------------- ---------------------------- ------------------------ --------------------- Alltrista Plastics Corporation Indiana 35-2000584 * - ---------------------------------------------- ---------------------------- ------------------------ --------------------- Alltrista Unimark, Inc. Indiana 35-1750028 * - ---------------------------------------------- ---------------------------- ------------------------ --------------------- Alltrista Zinc Products, L.P. Indiana 35-2000583 * - ---------------------------------------------- ---------------------------- ------------------------ --------------------- Caspers Tin Plate Company Illinois 35-1289006 * - ---------------------------------------------- ---------------------------- ------------------------ --------------------- Hearthmark, Inc. Indiana 35-2000585 * - ---------------------------------------------- ---------------------------- ------------------------ --------------------- Lafayette Steel & Aluminum Corporation Illinois 36-2590615 * - ---------------------------------------------- ---------------------------- ------------------------ --------------------- LumenX Corporation Ohio 35-1894142 * - ---------------------------------------------- ---------------------------- ------------------------ --------------------- Penn Video, Inc. Indiana 35-1692414 * - ---------------------------------------------- ---------------------------- ------------------------ --------------------- Quoin Corporation Delaware 88-0374612 * - ---------------------------------------------- ---------------------------- ------------------------ --------------------- Tilia, Inc. Delaware 36-4491807 * - ---------------------------------------------- ---------------------------- ------------------------ --------------------- Tilia Direct, Inc. Delaware 37-1424484 * - ---------------------------------------------- ---------------------------- ------------------------ --------------------- Tilia International, Inc. Delaware 38-3645648 * - ---------------------------------------------- ---------------------------- ------------------------ --------------------- TriEnda Corporation Indiana 35-2071043 * - ---------------------------------------------- ---------------------------- ------------------------ --------------------- Unimark Plastics, Inc. Pennsylvania 35-1779015 * - ---------------------------------------------- ---------------------------- ------------------------ ---------------------
*The name, address, including zip code, and telephone number of the agent for service of process is Martin Franklin at 555 Theodore Fremd Avenue, Rye, NY 10580, telephone number (914) 967-9400. SUBJECT TO COMPLETION, DATED ___________ __, 2002. PROSPECTUS JARDEN CORPORATION OFFER TO EXCHANGE $150,000,000 PRINCIPAL AMOUNT OF OUR 9 3/4% SENIOR SUBORDINATED NOTES DUE 2012, WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, FOR ANY AND ALL OF OUR OUTSTANDING 9 3/4% SENIOR SUBORDINATED NOTES DUE 2012 UNCONDITIONALLY GUARANTEED BY: ALLTRISTA NEWCO CORPORATION, ALLTRISTA PLASTICS CORPORATION, ALLTRISTA UNIMARK, INC., ALLTRISTA ZINC PRODUCTS, L.P., CASPERS TIN PLATE COMPANY, HEARTHMARK, INC., LAFAYETTE STEEL & ALUMINUM CORPORATION, LUMENX CORPORATION, PENN VIDEO, INC., QUOIN CORPORATION, TILIA, INC., TILIA DIRECT, INC., TILIA INTERNATIONAL, INC., TRIENDA CORPORATION, UNIMARK PLASTICS, INC. --------------- MATERIAL TERMS OF THE EXCHANGE OFFER o The exchange offer expires at 5:00 p.m., New York City time, on __________, 2002, unless extended. o We will exchange all outstanding old notes that are validly tendered and not validly withdrawn for an equal principal amount of a new series of notes which are registered under the Securities Act of 1933, as amended (the "Securities Act"), subject to the satisfaction or waiver of specified conditions. o The terms of the new notes are substantially identical to those of the old notes, except that the special mandatory redemption provisions and the transfer restrictions applicable to the old notes are not applicable to the new notes. o You may withdraw tenders of old notes at any time before the exchange offer expires. o The exchange of new notes for outstanding old notes should not be a taxable event for U.S. Federal income tax purposes. o We will not receive any proceeds from the exchange offer. o We do not intend to apply for listing of any of the notes to be issued on any securities exchange or to arrange for them to be quoted on any quotation system. o Our current and future domestic subsidiaries will unconditionally guarantee in full, on a joint and several basis, our obligation to pay the principal of, premium, if any, and interest on the new notes. See "Risk Factors - Federal and state statutes allow courts, under specific 1 circumstances, to void guarantees and require noteholders to return payments received from guarantors" and "Description of the New Notes - Subsidiary Guarantees." --------------- PLEASE REFER TO "RISK FACTORS" BEGINNING ON PAGE 22 FOR A DESCRIPTION OF THE RISKS YOU SHOULD CONSIDER WHEN EVALUATING THIS INVESTMENT. --------------- WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A PROXY. --------------- NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THE NOTES TO BE ISSUED IN THE EXCHANGE OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. WE MAY AMEND OR SUPPLEMENT THIS PROSPECTUS FROM TIME TO TIME BY FILING AMENDMENTS OR SUPPLEMENTS AS REQUIRED. YOU SHOULD READ THIS ENTIRE PROSPECTUS (AND THE ACCOMPANYING LETTER OF TRANSMITTAL AND RELATED DOCUMENTS) AND ANY AMENDMENTS OR SUPPLEMENTS CAREFULLY BEFORE MAKING YOUR INVESTMENT DECISION. THE INFORMATION IN THIS PROSPECTUS IS NOT COMPLETE AND MAY BE CHANGED. WE MAY NOT SELL THESE SECURITIES UNTIL THE REGISTRATION STATEMENT FILED WITH THE SECURITIES AND EXCHANGE COMMISSION IS EFFECTIVE. THIS PROSPECTUS IS NOT AN OFFER TO SELL THESE SECURITIES AND IT IS NOT SOLICITING AN OFFER TO BUY THESE SECURITIES IN ANY STATE WHERE THE OFFER OR SALE IS NOT PERMITTED. THE DATE OF THIS PROSPECTUS IS ____________, 2002. 2 TABLE OF CONTENTS
Page ---- INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE...............................................................6 SUMMARY.......................................................................................................7 Summary of the Terms of the Exchange Offer..................................................................7 Summary of the Terms of the New Notes......................................................................11 THE COMPANY..................................................................................................14 RISK FACTORS.................................................................................................22 If you fail to exchange properly your old notes for new notes, you will continue to hold notes subject to transfer restrictions.........................................22 Our significant indebtedness could adversely affect our financial health, and prevent us from fulfilling our obligations under the notes...................................22 Your right to receive payments on the notes is junior to our existing senior indebtedness and possibly all of our future borrowings. Further, the guarantees of the new notes are junior to all of the guarantors' existing senior indebtedness and possibly to all their future borrowings..........................................23 Since the notes are unsecured, your right to enforce remedies is limited by the rights of holders of secured debt......................................................24 Not all of our subsidiaries will guarantee our obligations under the notes, and the assets of the non-guarantor subsidiaries may not be available to make payments on the notes..................................................................24 We will require a significant amount of cash to service our indebtedness. Our ability to generate cash depends on many factors beyond our control..................................25 The indenture related to the notes and our senior credit facility contain various covenants which limit our management's discretion in the operation of our business.......................25 We may not have the ability to raise the funds necessary to finance the change of control offer required by the indenture....................................................26 A public market for the new notes may not develop..........................................................26 Federal and state statutes allow courts, under specific circumstances, to void guarantees and require noteholders to return payments received from guarantors......................26 Reductions, cancellations, or delays in customer purchases would adversely affect our profitability.................................................................28 We may be adversely affected by the trend towards retail trade consolidation...............................28 Sales of some of our products are seasonal.................................................................28 We depend on suppliers in Asia.............................................................................28 Competition in our industries may hinder our ability to execute our business strategy, achieve profitability, or maintain relationships with existing customers.......................29 If we fail to develop new or expand existing customer relationships, our ability to grow our business will be impaired............................................................30 We cannot be certain that our product innovations and marketing successes will continue....................30 Jarden and Tilia have no combined operating history and there can be no assurance that we will be able to successfully integrate Tilia's operations with our own...........................30 We may experience difficulty in integrating acquired businesses, which may interrupt our business operations....................................................................31 Our operations are subject to a number of Federal, state and local environmental regulations..........................................................................31
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We may be adversely affected by remediation obligations mandated by applicable environmental laws ......................................................................................31 We depend upon key personnel...............................................................................32 We enter into contracts with the United States government and other governments............................32 Our operating results can be adversely affected by changes in the cost or availability of raw materials.........................................................................32 Our business could be adversely affected because of risks which are particular to international operations...................................................................33 Our performance can fluctuate with the financial condition of the retail industry..........................33 Claims made against us based on product liability could have a material adverse effect on our business...........................................................................34 We depend on our patents and proprietary rights............................................................34 We depend on a single manufacturing facility for certain essential products................................34 Certain of our employees are represented by labor unions...................................................34 FORWARD LOOKING STATEMENTS...................................................................................35 USE OF PROCEEDS..............................................................................................36 RATIO OF EARNINGS TO FIXED CHARGES...........................................................................37 CAPITALIZATION...............................................................................................37 SELECTED CONSOLIDATED HISTORICAL AND PRO FORMA FINANCIAL DATA................................................38 SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT...............................................41 THE EXCHANGE OFFER...........................................................................................43 Purpose of the Exchange Offer..............................................................................43 Resale of the New Notes....................................................................................43 Terms of the Exchange Offer................................................................................44 Expiration Date; Extensions; Amendments....................................................................45 Interest on the New Notes..................................................................................46 Procedures for Tendering...................................................................................46 Return of Notes............................................................................................49 Book-Entry Transfer........................................................................................49 Guaranteed Delivery Procedures.............................................................................49 Withdrawal of Tenders......................................................................................50 Conditions.................................................................................................51 Shelf Registration.........................................................................................51 Liquidated Damages.........................................................................................52 Exchange Agent.............................................................................................53 Fees and Expenses..........................................................................................53 Consequence of Failures to Exchange........................................................................54 DESCRIPTION OF THE NEW NOTES.................................................................................55 Brief Description of the New Notes and the Guarantees......................................................55 Principal, Maturity and Interest...........................................................................56 Methods of Receiving Payments on the Notes.................................................................56 Paying Agent and Registrar for the Notes...................................................................56 Transfer and Exchange......................................................................................57 Subsidiary Guarantees......................................................................................57 Subordination..............................................................................................58 Optional Redemption........................................................................................60 Mandatory Redemption.......................................................................................60
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Repurchase at the Option of Holders.........................................................................60 Selection and Notice........................................................................................64 Certain Covenants...........................................................................................64 Events of Default and Remedies..............................................................................74 No Personal Liability of Directors, Officers, Employees and Stockholders....................................77 Legal Defeasance and Covenant Defeasance....................................................................77 Amendment, Supplement And Waiver............................................................................79 Satisfaction and Discharge..................................................................................80 Concerning the Trustee......................................................................................81 Book-Entry, Delivery and Form...............................................................................81 Depository Procedures.......................................................................................81 Exchange of Book-Entry Notes for Certificated Notes.........................................................84 Exchange of Certificated Notes for Global Notes.............................................................85 Certain Definitions.........................................................................................85 DESCRIPTION OF SENIOR INDEBTEDNESS...........................................................................101 MATERIAL FEDERAL INCOME TAX CONSIDERATIONS...................................................................103 PLAN OF DISTRIBUTION.........................................................................................107 UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS.........................................................................................109 TILIA INTERNATIONAL, INC. AND SUBSIDIARIES UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS..................................................................115 WHERE YOU CAN FIND MORE INFORMATION..........................................................................119 EXPERTS......................................................................................................119 LEGAL MATTERS................................................................................................120
5 INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE The following documents heretofore filed by us with the Securities and Exchange Commission (the "Commission") pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange Act"), are hereby incorporated by reference in this prospectus, except as superseded or modified herein: (a) Our annual report on Form 10-K for the fiscal year ended December 31, 2001; (b) Our quarterly report on Form 10-Q for the period ended March 31, 2002; (c) Our current report on Form 8-K, Date of Event - December 18, 2001, filed on January 9, 2002; (d) Our current report on Form 8-K, Date of Event - March 28, 2002, filed on March 28, 2002; (e) Our current report on Form 8-K, Date of Event - March 28, 2002, filed on March 29, 2002; (f) Our current report on Form 8-K, Date of Event - April 24, 2002, filed on May 9, 2002; (g) Our current report on Form 8-K, Date of Event - May 30, 2002, filed on June 4, 2002; and (h) Our definitive proxy statement on Schedule 14A filed on April 30, 2002. All of such documents are on file with the Commission. In addition, all documents filed by Jarden Corporation pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, subsequent to the date of this prospectus and prior to termination of the exchange offer are incorporated by reference in this prospectus and are a part hereof from the date of filing of such documents. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this prospectus to the extent that a statement contained herein or in any subsequently filed document that is also incorporated by reference herein modifies or replaces such statement. Any statements so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus. This prospectus incorporates herein by reference important business and financial information about us that is not included in or delivered with this prospectus. This information is available to you without charge upon written or oral request. If you would like a copy of any of this information, please submit your request to Jarden Corporation, 555 Theodore Fremd Avenue, Rye, NY 10580, Attention: Corporate Secretary, or call (914) 967-9400. In addition, to obtain timely delivery of any information you request, you must submit your request no later than ____________, 2002, which is five business days before the date the exchange offer expires. 6 SUMMARY This summary highlights material information from the prospectus. It may not contain all of the information that is important to you. References in this prospectus to "Jarden," "we," "us" and "our" refer to Jarden Corporation, which was formerly known as Alltrista Corporation. We urge you to read and review carefully this entire prospectus, and the other documents to which it refers, to fully understand the terms of the new notes and the exchange offer. SUMMARY OF THE TERMS OF THE EXCHANGE OFFER General..................................... On April 24, 2002, we completed a private offering of the old notes, which consisted of $150.0 million aggregate principal amount of our 9 3/4% Senior Subordinated Notes due 2012. In connection with the private offering, we entered into a registration rights agreement in which we agreed, among other things, to deliver this prospectus and to complete an exchange offer for the old notes. The Exchange Offer.......................... We are offering to exchange $1,000 principal amount of our registered 9 3/4% Senior Subordinated Notes due 2012, which we refer to as the "new notes," for each $1,000 principal amount of our unregistered 9 3/4% Senior Subordinated Notes due 2012, which we refer to as the "old notes." We sometimes refer to the new notes and the old notes together as the "notes." Currently, $150.0 million principal amount of old notes are outstanding. The terms of the new notes are identical in all material respects to the terms of the old notes, except that the special mandatory redemption provisions and the transfer restrictions applicable to the old notes are not applicable to the new notes. Old notes may be tendered only in $1,000 increments. Subject to the satisfaction or waiver of specified conditions, we will exchange the new notes for all old notes that are validly tendered and not withdrawn prior to the expiration of the exchange offer. See "The Exchange Offer -- Terms of the Exchange Offer." Upon completion of the exchange offer, there may be no market for the old notes and you may have difficulty selling them. See "Risk Factors - If you fail to exchange 7 properly your old notes for new notes, you will continue to hold notes subject to transfer restrictions." Expiration Date............................. The exchange offer will expire at 5:00 p.m., New York City time, on _____________, 2002, unless extended, in which case the expiration date will mean the latest date and time to which we extend the exchange offer. Conditions to the Exchange Offer............ The exchange offer is not subject to conditions other than that: o it shall not violate applicable law or any applicable interpretation of the staff of the Commission, o no action or proceeding shall have been instituted or threatened in any court or by any governmental agency which might materially impair our ability to proceed with the exchange offer, or o all governmental approvals which we deem necessary for the completion of the exchange offer shall have been obtained. The exchange offer is not conditioned upon any minimum principal amount of old notes being tendered for exchange. Procedures for Tendering Old Notes......................... If you wish to tender your old notes for new notes pursuant to the exchange offer, you must transmit to The Bank of New York, as exchange agent, on or before the expiration date, either: o a computer-generated message transmitted through The Depository Trust Company's Automated Tender Offer Program system and received by the exchange agent and forming a part of a confirmation of book-entry transfer in which you acknowledge and agree to be bound by the terms of the letter of transmittal; or o a properly completed and duly executed letter of transmittal, which accompanies this prospectus, or a facsimile of the letter of transmittal, together with your old notes and any other required documentation, to the exchange agent at its address listed in this prospectus and on the front cover of the letter of transmittal. 8 If you cannot satisfy either of these procedures on a timely basis, then you should comply with the guaranteed delivery procedures described below. By executing the letter of transmittal, you will make the representations to us described under "The Exchange Offer-Procedures for Tendering." Special Procedures for Beneficial Owners........................... If you are a beneficial owner whose old notes are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and you wish to tender your old notes in the exchange offer, you should contact the registered holder promptly and instruct the registered holder to tender on your behalf. If you wish to tender on your own behalf, you must either: o make appropriate arrangements to register ownership of the old notes in your name; or o obtain a properly completed bond power from the registered holder, before completing and executing the letter of transmittal and delivering your old notes. Guaranteed Delivery Procedures.............. If you wish to tender your old notes and time will not permit the documents required by the letter of transmittal to reach the exchange agent before the expiration date, or the procedure for book-entry transfer cannot be completed on a timely basis, you must tender your old notes according to the guaranteed delivery procedure described in this prospectus under "The Exchange Offer-Guaranteed Delivery Procedures." Acceptance of Old Notes and Delivery of New Notes....................... Subject to the satisfaction or waiver of the conditions to the exchange offer, we will accept for exchange any and all old notes which are validly tendered in the exchange offer and not withdrawn before 5:00 p.m., New York City time, on the expiration date. Withdrawal Rights........................... You may withdraw the tender of your old notes at any time before 5:00 p.m., New York City time, on the expiration date, by complying with the procedures for withdrawal described in this prospectus under "The Exchange Offer-Withdrawal of Tenders." Return of Notes............................. If we do not accept any tendered old notes for the 9 reasons described in the terms and conditions of the exchange offer or if you withdraw any tendered old notes or submit old notes for a greater principal amount than you desire to exchange, we will return the unaccepted, withdrawn or non-exchanged old notes without expense to you as promptly as practicable after the expiration or termination of the exchange offer. See "The Exchange Offer-Return of Notes." Certain Federal Income Tax Consequences............................ The exchange of old notes for new notes should not be a taxable event for United States Federal income tax purposes. For a discussion of the material Federal income tax consequences relating to the exchange of notes, see "Certain Federal Income Tax Considerations." Exchange Agent.............................. The Bank of New York, the trustee under the indenture governing the old notes, is serving as the exchange agent. Consequence of Failure to Exchange Notes.............................. If you do not exchange your old notes for new notes, you will continue to be subject to the restrictions on transfer provided in the old notes and in the indenture governing the old notes. In general, the old notes may not be offered or sold, unless registered under the Securities Act, except pursuant to an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. We do not currently plan to register the old notes under the Securities Act. 10 SUMMARY OF THE TERMS OF THE NEW NOTES The summary below describes the material terms of the new notes. Some of the terms and conditions described below are subject to important limitations and exceptions. The "Description of the New Notes" section of this prospectus contains a more detailed description of the terms and conditions of the notes. The terms of the new notes are substantially identical to those of the old notes, except that the special mandatory redemption provisions and the transfer restrictions applicable to the old notes are not applicable to the new notes. The new notes will evidence the same debt as the old notes. The new notes and the old notes will be governed by the same indenture. Issuer...................................... Jarden Corporation. Securities.................................. $150.0 million in principal amount of 9 3/4% Senior Subordinated Notes due 2012. Maturity.................................... May 1, 2012. Interest.................................... Annual rate: 9 3/4%. Payment frequency: every six months on May 1 and November 1. First payment: November 1, 2002. Guarantees.................................. The notes will be unconditionally guaranteed in full on a senior subordinated basis by each of our existing and future domestic restricted subsidiaries. If we cannot make payments on the notes when they are due, the guarantors must make them instead. See "Risk Factors - Federal and state statutes allow courts, under specific circumstances, to void guarantees and require noteholders to return payments received from guarantors" and "Description of the New Notes - Subsidiary Guarantees." Ranking.................................... The notes and the guarantees will be unsecured senior subordinated obligations. Accordingly, they will rank: o behind all of our and the guarantors' existing and future senior debt; o equally with all our and the guarantors' existing and future unsecured senior subordinated obligations issued under the indenture and which do not expressly provide that they are subordinated to the notes; and o ahead of any of our and the guarantors' future debt that expressly provides that it is subordinated to the 11 notes. On a pro forma basis as of March 31, 2002, the notes and the guarantees would have been subordinated to approximately $50.0 million of senior debt. In addition, there would have been approximately $50.0 million of unused commitments under our new senior credit facility. Optional Redemption......................... On or after May 1, 2007, we may redeem some or all of the notes at any time at the redemption prices listed under "Description of the New Notes--Optional Redemption." Prior to May 1, 2005, we may redeem up to 35% of the notes with the proceeds from certain public equity offerings at the redemption price listed under "Description of the New Notes--Optional Redemption." Mandatory Offer to Repurchase................ If we sell certain assets or experience certain types of changes of control, we must offer to repurchase the notes at the prices listed in the section "Description of the New Notes--Repurchase at the Option of Holders." There can be no assurance that we will have available funds sufficient to repurchase all of the notes that might be tendered by holders of the notes seeking to accept the repurchase offer. See Risk Factors-We may not have the ability to raise the funds necessary to finance the change of control offer required by the indenture." Certain Covenants........................... The indenture governing the notes will, among other things, limit our and the ability of our subsidiaries to: o incur additional indebtedness; o pay dividends or distributions on, or redeem or repurchase, capital stock; o make investments; o engage in certain transactions with affiliates; o incur liens; o transfer or sell assets; and o consolidate, merge or transfer all or substantially all of our assets. 12 For more details, see "Description of the New Notes." Use of Proceeds............................. We will not receive any proceeds from the exchange offer. YOU SHOULD REFER TO THE SECTION ENTITLED "RISK FACTORS" FOR AN EXPLANATION OF MATERIAL RISKS OF INVESTING IN THE NEW NOTES. 13 THE COMPANY Jarden Corporation, formerly known as Alltrista Corporation, is a leading provider of niche consumer products used in home food preservation. We operate two distinct business segments, through our Consumer Products Group and Material Based Group. Our Consumer Products Group markets and distributes Tilia's FoodSaver(R) line, which is the U.S. market leader in home vacuum packaging systems and accessories. Alltrista Consumer Products is the leading North American manufacturer, distributor and marketer of home canning and related products, primarily under the Ball(R), Kerr(R) and Bernardin(R) brands. Our Materials Based Group is the country'S largest producer of zinc strip and is a manufacturer of injection molded and industrial plastics. During 2001, we repositioned our growth strategy to focus on consumer products. Alltrista Consumer Products manufactures, markets and distributes a broad line of home food preservation and preparation products that includes recognized brand name home canning jars, jar closures and related food products (including fruit pectin, Fruit-Fresh(R) brand fruit protector, pickle mixes and tomato mixes). As of April 24, 2002, through the acquisition of Tilia International, Inc. and its subsidiaries ("Tilia"), our Consumer Products Group markets and distributes the FoodSaver(R) vacuum packaging system. Vacuum packaging is the process of removing air from a container to create a vacuum, and then sealing the container so that air cannot re-enter. Our Materials Based Group is comprised of three businesses: zinc strip products, injection molded plastics, and industrial plastics. Our zinc strip business is the sole source supplier of copper plated zinc penny blanks to both the United States Mint and the Royal Canadian Mint. In addition, we manufacture a line of industrial zinc items used in the plumbing, automotive, electrical component and European architectural markets, and the Lifejacket(R) anti-corrosion system. Unimark, our plastic injection molding business, manufactures precision custom components for major companies in the healthcare and consumer products industries including CIBA Vision Corporation, Johnson & Johnson, Meridian Diagnostics, Inc., The Scotts Company and Winchester Ammunition. Through our industrial plastic operations, we also manufacture and sell thermoformed plastic door liners and evaporator trays for refrigerators. RECENT DEVELOPMENTS On May 2, 2002, our board of directors adopted resolutions approving a 2-for-1 split of our shares of common stock. Stockholders of record at the close of business on May 20, 2002 received, on or about June 3, 2002, one additional share of our common stock for every share of our common stock held. On April 24, 2002, pursuant to an asset purchase agreement, dated March 28, 2002, as amended, we completed the acquisition of the business of Tilia. Based in San Francisco, Tilia, the leading U.S. marketer and distributor of home vacuum packaging systems through the FoodSaver(R) brand, was acquired for approximately $145 million in cash, $15 million in seller debt financing and the assumption of certain liabilities. In addition, we agreed to an earn-out provision with a total potential payment in cash or our common stock of up to $25 million payable in 3 years, provided that certain earnings performance targets are met. To finance the acquisition of Tilia, we entered into a new $100 million senior credit facility and issued the old 14 notes. See "Risk Factors - Our significant indebtedness could adversely affect our financial health and prevent us from fulfilling our obligations under the notes." On March 21, 2002, our board of directors adopted resolutions approving and recommending to our stockholders an amendment to our Restated Certificate of Incorporation changing our name from "Alltrista Corporation" to "Jarden Corporation." On May 30, 2002, our stockholders approved the change of our name and, on May 31, 2002, we filed a Certificate of Amendment to our Restated Certificate of Incorporation with the Secretary of State of the State of Delaware to effect the change of our name to "Jarden Corporation." CONSUMER PRODUCTS GROUP Alltrista Consumer Products manufactures, markets and distributes a line of home food preservation products to serve value, mid-tier and premium oriented customers, which products include home canning jars, jar closures, home canning tools, and other accessories. These products are marketed under the well-known Ball(R), Bernardin(R), Golden Harvest(R), and Kerr(R) brand names. We also market and distribute related food products, including fruit pectin, Fruit-Fresh(R) brand fruit protector, pickle mixes, tomato mixes and all-in-one canning kits, including a jam pectin kit and jelly and salsa kits. In addition, we market a line of housewares under the Golden Harvest(R) brand, including tumblers, beverage tappers and other glassware. Tilia provides patented vacuum packaging systems for household use marketed under the FoodSaver(R) brand. Our seven models of compact, patented counter-top FoodSaver(R) appliances incorporate a vacuum pump and bag sealer to keep foods fresh and are sold at prices ranging from approximately $100 to almost $300. We market our FoodSaver(R) appliances in tandem with our patented FoodSaver(R) bags and rolls and complementary accessories, including canisters, containers, lids, jar sealers and bottle stoppers. Customers Our customers are a diverse group of wholesalers and retailers in the United States and Canada. Our principal customers include grocery stores, mass merchants, and hardware stores, but we also sell through sporting goods and outdoor stores and specialty retailers. We have been Wal-Mart's category manager for the home canning segment since 1998. In this role, we are responsible for the home canning section within the store, including inventory management, the introduction of new items, and the creation of various reports to track inventory, sales, and margins. In addition to these channels of distribution, FoodSaver(R) products are sold directly to individual consumers through direct-to-consumer channels. Our direct-to-consumer sales have primarily been made through infomercials and catalogs. Sales and Marketing Our consumer products sales are made in the United States and Canada through food brokers and manufacturer representative organizations as well as through our internal sales force and house accounts. We employ regional sales managers located in key geographic areas who oversee the sales and retail activities of food brokerage firms and independent manufacturer representatives. 15 Distribution and Fulfillment We utilize company-operated and independent warehouses located in various regions of the United States and Canada to distribute our products. The largest of these warehouses is located in Muncie, Indiana and is operated by an outsourced provider, which utilizes highly automated packaging equipment allowing us to maintain our efficient and effective logistics and freight management processes. We also work with an outsourced provider for the delivery of our products in order to ensure that as many shipments as possible are processed as full truckloads, saving significant freight costs. Manufacturing We manufacture the metal closures for our home canning jars at our Muncie, Indiana facility. Lithographed tin plated steel sheet is cut and formed to produce the lids and bands. Liquid plastisol, which we formulate, is applied to lids, forming an airtight seal, which is necessary for safe and effective home canning. Finished products are packaged for integration with glass jars or sold in multi-packs as replacement lids. FoodSaver(R) products are sourced through a network of independent manufacturers. Appliances are currentlY sourced through three facilities in China; bags and rolls are currently sourced through suppliers in Korea and the United States; and accessories are sourced from Taiwan, China and the United States. Our own research and development department designs and engineers products in the United States and sets strict engineering specifications for the third-party manufacturers. We maintain ownership over all necessary production molds. Intellectual Property Management believes that none of our active trademarks or patents is essential to the successful operation of our business as a whole. However, one or more trademarks or patents may be material in relation to individual products or product lines such as our property rights to use the Ball(R), FoodSaver(R), Fruit-Fresh(R), Golden Harvest(R), and Kerr(R) brand names and the Bernardin(R) trade name in connection with certain goods to be sold, including home food preservation supplies, kitchen housewares and packaged foods for human consumption. We hold patents throughout many primary worldwide markets on both the design of the FoodSaver(R) appliance itself as well as on many of its components. Our patent on the FoodSaver(R) vacuum seal appliance expires in 2009, and our patent on FoodSaver(R) bags expires in 2005. The key elements of the bag are a unique waffle pattern that facilitates air removal, an oxygen barrier layer that prevents air from entering the bag and a heat resistant outer layer to allow easy sealing without burn-through. In addition, we have registered the VacLoc, SaverMate, VacuTop and VacuSave names with the U.S. Patent and Trademark Office and in several countries throughout the world. In addition, we have developed a proprietary two-piece closure system incorporating a plastisol sealant that differentiates our jar lids from our competitors' lids. Pursuant to the terms of the 1993 distribution agreement with Ball Corporation, we were granted a license to use the Ball(R) brand name for our consumer products. In the event of a change of control of Jarden which has not received the approval of a majority of our board of directors or causes us to be controlled or majority owned by a competitor of Ball, Ball has the 16 option to terminate our license to use the Ball(R) brand name. Pursuant to the terms of an agreement with Kerr Group, Inc., we have a perpetual exclusive, worldwide license to use the Kerr(R) brand name in our consumer products division. However, in the event of a change of control of Jarden which has not received the approval of a majority of our board of directors, Kerr has the option to terminate our license to use the Kerr(R) brand name. Raw Materials Most of our glass canning jars are supplied under an agreement with Anchor Glass Container Corporation. Such glass materials are also available from a variety of other sources at competitive prices. The tin plate raw material used in the manufacture of our home canning jar lids and closures is supplied by multiple vendors and is currently available from a variety of sources at competitive prices. Historically, the raw materials and components that are necessary for the manufacture of our products have been available in the quantities that we require. Competition We are the leading provider of home canning products and related accessories and our brands represent a significant portion of the sales in this niche market. In addition to the competitors in our niche market, we compete with companies who specialize in other food preservation mediums such as freezing and dehydration. Our FoodSaver(R) appliances compete with marketers of "conventional" food storage solutions, such as plastic bags and containers. In addition, our competitors include manufacturers of sealing appliances that heat-seal bags, but, we believe, do not create a vacuum seal comparable to ours. There are also several companies that manufacture industrial and commercial vacuum packaging products, but we do not believe that these manufacturers have attempted to enter the household marketplace. MATERIALS BASED GROUP Our materials based group is currently comprised of three businesses: zinc products, injection molded plastics, and industrial plastics. Effective November 26, 2001, we sold our underperforming thermoformed plastics operations consisting of the assets of our Triangle, TriEnda and Synergy World divisions (the "TPD Assets") to Wilbert, Inc. for $21.0 million in cash, a $1.9 million noninterest-bearing one-year note, and the assumption of certain identified liabilities. We recorded a pre-tax loss of $121.1 million in 2001 related to the sale. Effective November 1, 2001, we sold our majority interest in Microlin, LLC, a developer of proprietary battery and fluid delivery technology, for $1,000 in cash plus contingent consideration based upon future performance through December 31, 2012 and the cancellation of future funding requirements. We recorded a pre-tax loss of $1.4 million in 2001 related to the sale. ZINC PRODUCTS 17 We believe our zinc strip business is the largest producer of zinc strip and fabricated products in the United States. We are the sole source supplier of copper plated zinc penny blanks to both the United States Mint and the Royal Canadian Mint and are currently exploring opportunities with several other countries. In addition, we manufacture a line of industrial zinc items used in the plumbing, automotive, electrical component and European architectural markets, and the Lifejacket(R) anti-corrosion system. Our anticorrosion zinc Lifejacket(R) Is gaining recognition as a cost-effective solution to arrest the corrosion of the reinforcement steel within poured concrete structures. We are affected by fluctuations in penny blank requirements of the United States Department of the Treasury and the Federal Reserve System. Although the future use of the penny as legal tender has been debated in recent years, management believes that the zinc based coinage will remain an important part of the currency system for the foreseeable future. Sales and Marketing Our sales and marketing staff consists of individuals with considerable technical background in the field of metallurgy. These individuals focus on leveraging our core capabilities in zinc metallurgy and electrochemistry to exploit new market opportunities. The sales and marketing staff works closely with our engineering and technical services group to deliver products to the customer. We maintain a website which contains technical information regarding the advantageous physical properties of zinc versus other metals. Manufacturing In our Greenville, Tennessee facility, we manufacture alloys of zinc strip and fabricated zinc products in a number of configurations for our customers. We have five lines used to slit the coils into widths specific by customers. Many customers require less than the full master coil diameters, so the large coils are broken down into the requested diameters at the time they are slit. We also produce coin blanks stamped from slit coils using one of five high-speed presses. The stamped blanks are then rimmed and put into one of three electroplating lines where the copper coating is applied. Raw Materials We purchase special high-grade zinc ingot and a variety of metals, including copper, lead, titanium, magnesium, manganese and other alloys, to produce the zinc alloys we use in our various applications. These alloys have been developed by our technical staff to meet the specific physical and chemical characteristics of the finished product applications. We purchase zinc ingot based on market prices quoted on the London Metals Exchange (month-end average price) from a variety of suppliers. Certain customers, including the United States Mint, provide their own purchased zinc that is utilized to manufacture product at a toll conversion price. We purchase copper for both alloying and plating purposes based on market prices quoted on the New York Commodities and Metals Exchange. As with zinc ingot, the United States Mint supplies the required copper for one-cent coin blanks. We also purchase a variety of chemicals for production and waste treatment, primarily for use in copper plating. Prices for chemicals are negotiated with suppliers based on market supply and demand conditions and volume purchase levels. 18 UNIMARK-INJECTION MOLDED PLASTICS We manufacture precision custom injection molded components for major companies in the healthcare and consumer products industries. We also own Yorker(R) Closures, a proprietary product line of plastic closures. Products for the healthcare industry include items such as intravenous harness components and surgical devices. Products for manufacturers of consumer goods primarily include packaging and sport shooting ammunition components. Customers We supply shotgun shell components to Winchester Ammunition and various healthcare products (such as contact lens cases) to CIBA Vision Corporation, Ethicon, Inc., Johnson & Johnson, CB Fleet Company, Inc., and Meridian Diagnostics, Inc. and consumer products for The Scotts Company, among others. Sales and Marketing We concentrate our marketing efforts in those markets that require high levels of precision, quality, and engineering expertise. There is potential for continued growth in all product lines, especially in the health care market, where our quality, service and "clean room" molding operations are critical competitive factors. Manufacturing We manufacture at three facilities located in Greenville, South Carolina; Reedsville, Pennsylvania; and Springfield, Missouri. The injection-molding process involves converting plastic resin pellets to a fluid state through elevated temperature and pressure, at which point the resin is injected into a mold where it is then formed into a finished part. Molded parts are usually small, intricate components that are produced using multi-cavity tooling. Post-molding operations employ robotics and automation for assembly and packaging. Raw Materials We purchase resin from regular commercial sources of supply and, in most cases, multiple sources. The supply and demand for plastic resins are subject to cyclical and other market factors. Competition The market for injection molded plastics is highly competitive. We concentrate our marketing efforts in those markets that require high levels of precision, quality, engineering expertise and cleanliness. We have differentiated ourselves from our competitors by developing long-lasting relationships with a number of specialty tooling manufacturers and by possessing strong design capabilities. We believe that the quality and cleanliness of our facilities provides another competitive advantage for us. As a result, we believe that we will continue to capture new injection molding programs as they come to market, as well as benefit from continued outsourcing trends among original equipment manufacturers. 19 INDUSTRIAL PLASTICS Our industrial plastics business manufactures thermoformed white goods for a variety of customers in our Fort Smith, Arkansas facility. We also manufacture and sell extruded plastic sheet and roll stock products in smooth, textured and laminated finishes for a variety of customers. We produce plastic tables for original equipment manufacturers in our Fort Smith plant and have a proprietary line of tables selling under the Vision(TM) brand that are primarily sold to the hospitality and institutional markets. Customers We manufacture refrigerator inner door liners and evaporator trays for Whirlpool, the largest customer of our industrial plastics business, with whom we have enjoyed a business relationship for over 25 years. In addition, we supply the after-market inner door liner service parts for Whirlpool. We also manufacture products for other white goods manufacturers, including Diversified Refrigeration, Inc., a supplier to General Electric and McCall Refrigeration. Sales and Marketing Our sales and marketing focuses on establishing and building relationships with major customers in our market. Our experienced sales and marketing teams, which include members of senior management, emphasize to the customer our total capabilities. Marketing, product design and manufacturing personnel interface with multiple contacts within the customer organization from the initiation of a new program through production. Manufacturing Our products are produced through a thermoforming process. Thermoforming is an operation in which plastic sheet is converted into a formed product through single- or twin-sheet vacuum or pressure formed in conjunction with the application of heat. After the product is formed, the process of removing the excess material, or trimming, is generally performed by automated equipment programmed to execute the appropriate steps to produce the finished part to the customer's specifications. We have the capability to provide value-added services such as assembling components into finished parts, performing various finishing operations, or attaching hardware or other items to a thermoformed part. Raw Materials We purchase resin directly for use in the manufacture of extruded sheet and also purchase plastic sheet from third-party suppliers in those instances where we are unable to provide for our needs internally. These raw materials are obtained from regular commercial sources of supply and, in most cases, multiple sources. The supply and demand for plastic resins are subject to cyclical and other market factors. We purchase resin used in the production of Whirlpool products under a supply contract that Whirlpool negotiates with resin suppliers. This agreement provides us protection from price fluctuations in materials for Whirlpool products, while we can usually pass through any changes in material pricing to its other customers. 20 GOVERNMENT CONTRACTS We enter into contracts with the United States Government which contain termination provisions customary for government contracts. See "Zinc Products" under the Materials Based Group Segment discussion above. The United States Government retains the right to terminate such contracts at its convenience. However, if the contract is terminated, we are entitled to be reimbursed for allowable costs and profits to the date of termination relating to authorized work performed to such date. The United States Government contracts are also subject to reduction or modification in the event of changes in government requirements or budgetary constraints. Since entering into a contract with us in 1981, the United States Government has not terminated the penny blank supply arrangement. ENVIRONMENTAL MATTERS Our operations are subject to Federal, state and local environmental and health and safety laws and regulations, including those that impose workplace standards and regulate the discharge of pollutants into the environment and establish standards for the handling, generation, emission, release, discharge, treatment, storage and disposal of materials and substances including solid and hazardous wastes. We believe that we are in material compliance with such laws and regulations. Further, the cost of maintaining compliance has not, and we believe, in the future, will not, have a material adverse effect on our business, results of operations or financial condition. Due to the nature of our operations and the frequently changing nature of environmental compliance standards and technology, we cannot predict with any certainty that future material capital or operating expenditures will not be required in order to comply with applicable environmental laws and regulations. In addition to operational standards, environmental laws also impose obligations on various entities to clean up contaminated properties or to pay for the cost of such remediation, often upon parties that did not actually cause the contamination. We have attempted to limit our exposure to such liabilities through contractual indemnities and other mechanisms. We do not believe that any of our existing remediation obligations, including at third-party sites where we have been named a potentially responsible party, will have a material adverse effect upon our business, results of operations or financial condition. EMPLOYEES As of June 30, 2002, we employed approximately 950 people. Approximately 215 union workers are covered by two collective bargaining agreements at our zinc products and consumer products manufacturing facilities. These agreements expire at the consumer products facility (Muncie, Indiana) on October 15, 2006, and at the zinc products facility (Greeneville, Tennessee) on October 4, 2003. We have not experienced a work stoppage during the past five years. Management believes that its relationships with our employees and collective bargaining unions are satisfactory. * * * Our principal executive offices are located at 555 Theodore Fremd Avenue, Rye, New York, 10580. 21 RISK FACTORS Our business, operations and financial condition are subject to various risks. The material risks are described below, and you should take these risks into account in evaluating us or any investment decision involving us or in deciding whether to tender your old notes in exchange for new notes in this exchange offer. This section does not describe all risks applicable to us, our industry or our business, and it is intended only as a summary of the material risk factors. The risk factors set forth below are generally applicable to the old notes as well as the new notes. RISKS RELATING TO THE NOTES IF YOU FAIL TO EXCHANGE PROPERLY YOUR OLD NOTES FOR NEW NOTES, YOU WILL CONTINUE TO HOLD NOTES SUBJECT TO TRANSFER RESTRICTIONS. The new notes will be issued in exchange for old notes only after timely receipt by the exchange agent of the old notes, a properly completed and duly executed letter of transmittal and all other required documents. Therefore, if you desire to tender your old notes in exchange for new notes, you should allow sufficient time to ensure timely delivery. Your failure to follow these procedures may result in delay in receiving new notes on a timely basis or in your loss of the right to receive new notes. Neither we nor the exchange agent is under any duty to give notification of defects or irregularities with respect to tenders of old notes for exchange. If you tender old notes in the exchange offer for the purpose of participating in a distribution of the new notes, you will be required to comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction. See "The Exchange Offer-Procedures for Tendering" and "Plan of Distribution". If you do not exchange your old notes for new notes pursuant to the exchange offer, you will continue to be subject to the restrictions on transfer of the old notes as set forth in the legend on the old notes. In general, the old notes may not be offered or sold unless registered under the Securities Act, or pursuant to an exemption from, or in a transaction not subject to, the Securities Act and applicable state securities laws. We do not currently intend to register the old notes under the Securities Act. To the extent that old notes are tendered and accepted in the exchange offer, the trading market for untendered and tendered but unaccepted old notes could be adversely affected. OUR SIGNIFICANT INDEBTEDNESS COULD ADVERSELY AFFECT OUR FINANCIAL HEALTH, AND PREVENT US FROM FULFILLING OUR OBLIGATIONS UNDER THE NOTES. As a result of the acquisition of Tilia, we have a significant amount of indebtedness. Our significant indebtedness could: o make it more difficult for us to satisfy our obligations with respect to the notes; o increase our vulnerability to general adverse economic and industry conditions; 22 o require us to dedicate a substantial portion of our cash flow from operations to payments on our indebtedness, thereby reducing the availability of our cash flow to fund working capital, capital expenditures, acquisitions and investments and other general corporate purposes; o limit our flexibility in planning for, or reacting to, changes in our business and the markets in which we operate; o place us at a competitive disadvantage compared to our competitors that have less debt; and o limit, among other things, our ability to borrow additional funds. The following table sets forth our total debt, total stockholders' equity, total capitalization and ratio of debt to total capitalization on a pro forma basis: Pro forma as of March 31, 2002 -------------- (Unaudited) (Dollars in Thousands) Total debt 212,654 Total stockholders' equity 46,301 --------------------- Total capitalization 258,955 ===================== Ratio of debt to total 82% capitalization The terms of the indenture governing the notes and the new senior credit facility allow us to issue and incur additional debt upon satisfaction of certain conditions. See "Description of Senior Indebtedness" for a description of our new senior credit facility. If new debt is added to current debt levels, the related risks described above could increase. YOUR RIGHT TO RECEIVE PAYMENTS ON THE NOTES IS JUNIOR TO OUR EXISTING SENIOR INDEBTEDNESS AND POSSIBLY ALL OF OUR FUTURE BORROWINGS. FURTHER, THE GUARANTEES OF THE NEW NOTES ARE JUNIOR TO ALL OF THE GUARANTORS' EXISTING SENIOR INDEBTEDNESS AND POSSIBLY TO ALL THEIR FUTURE BORROWINGS. The notes and the guarantees rank behind all of our and the guarantors' existing senior indebtedness and all of our and the guarantors' future senior indebtedness. See "Description of Senior Indebtedness" for a description of our new senior credit facility. On a pro forma basis as of March 31, 2002, the notes and the guarantees would have been subordinated to approximately $50.0 million of senior debt. In addition, our new senior credit facility would have permitted up to approximately $50.0 million of additional borrowings, subject to compliance with the covenants and conditions to borrowing under the new senior credit facility, which borrowings would be senior to the notes and the guarantees. We will be permitted to borrow substantial additional indebtedness, including senior debt, in the future. 23 As a result of this subordination, upon any distribution to our creditors or the creditors of the guarantors in a bankruptcy, liquidation or reorganization or similar proceedings relating to us or the guarantors or our or the guarantors' property, the holders of our senior debt and the senior debt of the guarantors will be entitled to be paid in full in cash before any payment may be made with respect to the notes or the guarantees. In addition, all payments on the new notes and the guarantees will be blocked in the event of a payment default on senior debt and may be blocked for up to 179 consecutive days in the event of certain non-payment defaults on designated senior debt. In the event of a bankruptcy, liquidation or reorganization or similar proceeding relating to us or the guarantors, the indenture relating to the new notes will require that amounts otherwise payable to holders of the new notes in a bankruptcy or similar proceeding be paid to holders of senior debt instead until the holders of senior debt are paid in full. As a result, holders of the new notes may not receive all amounts owed to them and may receive less, ratably, than holders of trade payables and other unsubordinated indebtedness in any such proceeding. SINCE THE NOTES ARE UNSECURED, YOUR RIGHT TO ENFORCE REMEDIES IS LIMITED BY THE RIGHTS OF HOLDERS OF SECURED DEBT. In addition to being contractually subordinated to all existing and future senior indebtedness, our obligations under the new notes will be unsecured while obligations under our senior credit facility will be secured by substantially all of our assets and those of our subsidiaries. If we become insolvent or are liquidated, or if payment under the new senior credit facility is accelerated, the lenders under the new senior credit facility are entitled to exercise the remedies available to a secured lender under applicable law. These lenders have a claim on all assets securing the new senior credit facility before the holders of unsecured debt, including the notes. NOT ALL OF OUR SUBSIDIARIES WILL GUARANTEE OUR OBLIGATIONS UNDER THE NOTES, AND THE ASSETS OF THE NON-GUARANTOR SUBSIDIARIES MAY NOT BE AVAILABLE TO MAKE PAYMENTS ON THE NOTES. Our present and future domestic restricted subsidiaries will guarantee the notes. Payments on the notes are only required to be made by us and the subsidiary guarantors. As a result, no payments are required to be made from assets of subsidiaries that do not guarantee the notes, unless those assets are transferred by dividend or otherwise to us or a subsidiary guarantor. On a pro forma basis, as of and for the year ended December 31, 2001, the aggregate total assets and net sales of our foreign subsidiaries, which represent all of our non-guarantor subsidiaries, were $14.3 million and $15.3 million, respectively, or 4.6% and 3.6%, respectively, of our total assets and net sales. In the event of a bankruptcy, liquidation or reorganization of any of the non-guarantor subsidiaries, holders of their liabilities, including their trade creditors, will be entitled to payment of their claims from the assets of those subsidiaries before any assets are made available for distribution to us. As a result, the notes are effectively subordinated to all indebtedness and other liabilities of the non-guarantor subsidiaries. 24 WE WILL REQUIRE A SIGNIFICANT AMOUNT OF CASH TO SERVICE OUR INDEBTEDNESS. OUR ABILITY TO GENERATE CASH DEPENDS ON MANY FACTORS BEYOND OUR CONTROL. Our ability to make payments on and to refinance our indebtedness, including the notes and amounts borrowed under our senior credit facility, and to fund planned capital expenditures and expansion efforts and strategic acquisitions we may make in the future, if any, will depend on our ability to generate cash in the future. This, to a certain extent, is subject to general economic, financial, competitive and other factors that are beyond our control. Based on our current level of operations, we believe our cash flow from operations, together with available cash and available borrowings under our senior credit facility, will be adequate to meet future liquidity needs for at least the next twelve months. However, we cannot assure you that our business will generate sufficient cash flow from operations in the future, that our currently anticipated growth in revenues and cash flow will be realized on schedule or that future borrowings will be available to us under the new senior credit facility in an amount sufficient to enable us to service indebtedness, including the new notes, or to fund other liquidity needs. We may need to refinance all or a portion of our indebtedness, including the notes and our senior credit facility, on or before maturity. We cannot assure you that we will be able to do so on commercially reasonable terms or at all. THE INDENTURE RELATED TO THE NOTES AND OUR SENIOR CREDIT FACILITY CONTAIN VARIOUS COVENANTS WHICH LIMIT OUR MANAGEMENT'S DISCRETION IN THE OPERATION OF OUR BUSINESS. Our senior credit facility and the indenture related to the notes contain various provisions that limit our management's discretion by restricting our and our subsidiaries' ability to, among other things: o incur additional indebtedness; o pay dividends or distributions on, or redeem or repurchase, capital stock; o make investments; o engage in transactions with affiliates; o incur liens; o transfer or sell assets; and o consolidate, merge or transfer all or substantially all of our assets. In addition, our senior credit facility requires us to meet certain financial ratios. Any failure to comply with the restrictions of our senior credit facility, the indenture related to the notes or any other subsequent financing agreements may result in an event of default. An event of default may allow the creditors, if the agreements so provide, to accelerate the related debt as well as any other debt to which a cross-acceleration or cross-default provision applies. In addition, the lenders may be able to terminate any commitments they had made to supply us with further funds. 25 WE MAY NOT HAVE THE ABILITY TO RAISE THE FUNDS NECESSARY TO FINANCE THE CHANGE OF CONTROL OFFER REQUIRED BY THE INDENTURE. Upon the occurrence of certain specific kinds of change of control events, we will be required to offer to repurchase all outstanding new notes. However, it is possible that we will not have sufficient funds at the time of the change of control to make the required repurchase of notes. In addition, restrictions in our senior credit facility prohibit repurchases of the notes unless a waiver is obtained from the lenders or our senior credit facility is repaid in full. If we fail to repurchase the new notes following a change of control, we will be in default under the indenture related to the new notes, which will result in a cross-default under our senior credit facility. Any future debt which we incur may also contain restrictions on repayment of the notes. In addition, certain important corporate events, such as leveraged recapitalizations, that would increase the level of our indebtedness would not constitute a change of control under the indenture related to the notes. A PUBLIC MARKET FOR THE NEW NOTES MAY NOT DEVELOP. There can be no assurance that a public market for the new notes will develop or, if such a market develops, as to the liquidity of the market. If a market were to develop, the new notes could trade at prices that may be higher or lower than their principal amount. We do not intend to apply for listing of the new notes on any securities exchange or for quotation of the new notes on any automated quotation system. The initial purchasers, Banc of America Securities LLC, CIBC World Markets Corp., and NatCity Investments Inc., have previously made a market in the old notes, and we have been advised that the initial purchasers currently intend to make a market in the new notes, as permitted by applicable laws and regulations, after consummation of the exchange offer. The initial purchasers are not obligated, however, to make a market in the old notes or the new notes, and any market-making activity may be discontinued at any time without notice at the sole discretion of the initial purchasers. If an active public market does not develop or continue, the market price and liquidity of the new notes may be adversely affected. In addition, the liquidity of the trading market in the new notes, and the market price quoted for the new notes, may be adversely affected by changes in the overall market for high-yield securities and by changes in our financial performance or prospects or in the prospects for companies in our industry generally. As a result, you cannot be sure that an active trading market will develop for the notes. FEDERAL AND STATE STATUTES ALLOW COURTS, UNDER SPECIFIC CIRCUMSTANCES, TO VOID GUARANTEES AND REQUIRE NOTEHOLDERS TO RETURN PAYMENTS RECEIVED FROM GUARANTORS. If a bankruptcy case or lawsuit is initiated by unpaid creditors of any guarantor, the debt represented by the guarantees entered into by the guarantors may be reviewed under the Federal bankruptcy law and comparable provisions of state fraudulent transfer laws. Under these laws, a guarantee could be voided, or claims in respect of the guarantee could be subordinated to certain obligations of a guarantor if, among other things, the guarantor, at the time it entered into the guarantee: o received less than reasonably equivalent value or fair consideration for entering into the guarantee; and 26 o either: o was insolvent or rendered insolvent by reason of entering into a guarantee; or o as engaged in a business or transaction for which the guarantor's remaining assets constituted unreasonably small capital; or o intended to incur, or believed that it would incur, debts or contingent liabilities beyond its ability to pay them as they become due. In addition, any payment by a guarantor could be voided and required to be returned to the guarantor or to a fund for the benefit of the guarantor's creditors under those circumstances. If a guarantee of a subsidiary were voided as a fraudulent conveyance or held unenforceable for any other reason, holders of the notes would be solely creditors of our company and creditors of our other subsidiaries that have validly guaranteed the notes. The notes then would be effectively subordinated to all liabilities of the subsidiary whose guarantee was voided. The measures of insolvency for purposes of these fraudulent transfer laws will vary depending upon the law applied in any proceeding to determine whether a fraudulent transfer has occurred. Generally, however, a guarantor would be considered insolvent if: o the sum of its debts, including contingent liabilities, were greater than the fair saleable value of all of its assets; or o the present fair saleable value of its assets were less than the amount that would be required to pay its probable liability on its existing debts, including contingent liabilities, as they become absolute and mature; or o it could not pay its debts or contingent liabilities as they become due. If the claims of the holders of the new notes against any subsidiary were subordinated in favor of other creditors of the subsidiary, the other creditors would be entitled to be paid in full before any payment could be made on the new notes. If one or more of the guarantees is voided or subordinated, we cannot assure you that after providing for all prior claims there would be sufficient assets remaining to satisfy the claims of the holders of the new notes. Based upon financial and other information, we believe that the guarantees are being incurred for proper proposes and in good faith and that we, and our subsidiaries that are guarantors, on a consolidated basis, are solvent and will continue to be solvent after this offering is completed, will have sufficient capital for carrying on our business after the issuance of the new notes and will be able to pay our debts as they mature. We cannot assure you, however, as to the standard a court would apply in making these determinations or that a court would agree with our conclusions in this regard. 27 RISKS RELATING TO JARDEN REDUCTIONS, CANCELLATIONS, OR DELAYS IN CUSTOMER PURCHASES WOULD ADVERSELY AFFECT OUR PROFITABILITY. Customers in our consumer products group segment, and many customers in our materials based group segment, generally do not enter into long-term contracts or commitments with us. As a result, these customers may cancel their orders, change purchase quantities from forecast volumes, or delay purchases for a number of reasons beyond our control. Significant or numerous cancellations, reductions, or delays in purchases by customers could have a material adverse effect on our business, results of operations and financial condition. In addition, because many of our costs are fixed, a reduction in customer demand could have an adverse affect on our gross profit margins and operating income. Sales to one customer in our consumer products group segment, Wal-Mart Stores, Inc. and its affiliates, accounted for approximately 8% of our 2001 consolidated net sales and approximately 17% of our 2001 consolidated net sales on a pro forma basis. In addition, sales to one customer in our materials based group segment accounted for approximately 8% of our 2001 consolidated net sales and approximately 6% of our 2001 consolidated net sales on a pro forma basis. A significant reduction in purchases from either of these customers could have a material adverse effect on our business, results of operations and financial condition. WE MAY BE ADVERSELY AFFECTED BY THE TREND TOWARDS RETAIL TRADE CONSOLIDATION. With the growing trend towards retail trade consolidation, we are increasingly dependent upon key retailers whose bargaining strength is growing. Our consumer products business may be negatively affected by changes in the policies of our retailer customers, such as inventory destocking, limitations on access to shelf space, price demands and other conditions. SALES OF SOME OF OUR PRODUCTS ARE SEASONAL. Sales of certain of our products, particularly our consumer products, are seasonal. Sales of our home canning products generally reflect the pattern of the growing season, and sales of our FoodSaver(R) products generally are strongest in the fourth quarter preceding the holiday season. Sales of these products may be negatively impacted by unfavorable weather conditions and other market trends. Sales of our consumer products may also be adversely affected by the trend toward decreasing prices and increasing quality of purchased preserved food products. Either or both of these factors could have a material adverse effect on our business, results of operations and financial condition. WE DEPEND ON SUPPLIERS IN ASIA. The vast majority of our FoodSaver(R) products are manufactured by third party suppliers in China and Korea. Any adverse change in, among other things, any of the following could have a material adverse effect on our business, results of operations and financial condition: o our relationship with these suppliers; o the financial condition of these suppliers; 28 o our ability to import outsourced products; or o these suppliers' ability to manufacture and deliver outsourced products on a timely basis. We cannot assure you that we could quickly or effectively replace any of our suppliers if the need arose, and we cannot assure you that we could retrieve tooling and molds possessed by any of our suppliers. Our dependence on these few suppliers could also adversely affect our ability to react quickly and effectively to changes in the market for our products. In addition, international manufacturing is subject to significant risks, including, among other things: o labor unrest; o political instability; o restrictions on transfer of funds; o domestic and international customs and tariffs; o unexpected changes in regulatory environments; and o potentially adverse tax consequences. Labor in China has historically been readily available at relatively low cost as compared to labor costs applicable in other nations. China has experienced rapid social, political and economic change in recent years. We cannot assure you that labor will continue to be available to us in China at costs consistent with historical levels. A substantial increase in labor costs in China could have a material adverse effect on our business, results of operations and financial condition. Although China currently enjoys "most favored nation" trading status with the United States, the U.S. government has in the past proposed to revoke such status and to impose higher tariffs on products imported from China. We cannot assure you that our business will not be affected by the aforementioned risks, each of which could have a material adverse effect on our business, results of operations and financial condition. COMPETITION IN OUR INDUSTRIES MAY HINDER OUR ABILITY TO EXECUTE OUR BUSINESS STRATEGY, ACHIEVE PROFITABILITY, OR MAINTAIN RELATIONSHIPS WITH EXISTING CUSTOMERS. We operate in highly competitive industries. We compete against numerous other domestic and foreign companies, many of which are more established in their industries and have substantially greater revenue or resources than we do. We also face competition from the manufacturing operations of our current and potential customers in our materials based group segment. A shift away from outsourcing on behalf of our current or potential customers could have a material adverse effect on our business, results of operations and financial condition. Competition could cause price reductions, reduced profits or losses, or loss of market share, any of which could have a material adverse effect on our business. 29 To compete effectively in the future in the consumer products industry, among other things, we must: o maintain strict quality standards; o develop new products that appeal to consumers; and o deliver products on a reliable basis at competitive prices. To compete effectively in the future in the materials based industry, among other things, we must: o provide technologically advanced manufacturing services; o maintain strict quality standards; o respond flexibly and rapidly to customers' design and schedule changes; and o deliver products on a reliable basis at competitive prices. Our inability to do any of these things could have a material adverse effect on our business, results of operations and financial condition. IF WE FAIL TO DEVELOP NEW OR EXPAND EXISTING CUSTOMER RELATIONSHIPS, OUR ABILITY TO GROW OUR BUSINESS WILL BE IMPAIRED. Growth in our consumer products and materials based group segments depends to a significant degree upon our ability to develop new customer relationships and to expand existing relationships with current customers. We cannot guarantee that new customers will be found, that any such new relationships will be successful when they are in place, or that business with current customers will increase. Failure to develop and expand such relationships could have a material adverse effect on our business, results of operations and financial condition. WE CANNOT BE CERTAIN THAT OUR PRODUCT INNOVATIONS AND MARKETING SUCCESSES WILL CONTINUE. We believe that our future success will depend, in part, upon our ability to continue to introduce innovative designs in our existing products and to develop, manufacture and market new products. We cannot assure you that we will be successful in the introduction, marketing and manufacturing of any new products or product innovations, or develop and introduce in a timely manner innovations to our existing products which satisfy customer needs or achieve market acceptance. Our failure to develop new products and introduce them successfully and in a timely manner would harm our ability to grow our business and could have a material adverse effect on our business, results of operations and financial condition. JARDEN AND TILIA HAVE NO COMBINED OPERATING HISTORY AND THERE CAN BE NO ASSURANCE THAT WE WILL BE ABLE TO SUCCESSFULLY INTEGRATE TILIA'S OPERATIONS WITH OUR OWN. Prior to our acquisition of Tilia, Tilia was operated as a separate independent entity, and there 30 can be no assurance that we will be able to integrate the operations of Tilia successfully or to institute the necessary systems and procedures, including accounting and financial reporting systems, to manage the combined enterprise on a profitable basis. There can be no assurance that our management group will be able to manage the combined entity effectively or to implement successfully our acquisition and internal growth operating strategies. The pro forma financial results contained herein cover periods in which Jarden and Tilia were not under common control and may not be indicative of our future financial or operating results. Our inability to integrate Tilia successfully could have a material adverse effect on our business, results of operations and financial condition. WE MAY EXPERIENCE DIFFICULTY IN INTEGRATING ACQUIRED BUSINESSES, WHICH MAY INTERRUPT OUR BUSINESS OPERATIONS. We intend to grow through the acquisition of additional companies, including the acquisition of substantially all of the assets of Tilia. We expect to face competition for acquisition candidates, which may limit the number of opportunities and may lead to higher acquisition prices. There can be no assurance that we will be able to identify, acquire, or manage profitably additional businesses or to integrate successfully any acquired businesses into our existing business without substantial costs, delays or other operational or financial difficulties. Further, acquisitions involve a number of special risks, including failure of the acquired business to achieve expected results, diversion of management's attention, failure to retain key personnel of the acquired business and risks associated with unanticipated events or liabilities, some or all of which could have a material adverse effect on our business, results of operations and financial condition. OUR OPERATIONS ARE SUBJECT TO A NUMBER OF FEDERAL, STATE AND LOCAL ENVIRONMENTAL REGULATIONS. Our operations are subject to Federal, state and local environmental and health and safety laws and regulations including those that impose workplace standards and regulate the discharge of pollutants into the environment and establish standards for the handling, generation, emission, release, discharge, treatment, storage and disposal of materials and substances including solid and hazardous wastes. We believe that we are in material compliance with such laws and regulations and that the cost of maintaining compliance will not have a material adverse effect on our business, results of operations or financial condition. While we do not anticipate having to make, and historically have not had to make, significant capital expenditures in order to comply with applicable environmental laws and regulations, due to the nature of our operations and the frequently changing nature of environmental compliance standards and technology, we cannot predict with any certainty that future material capital expenditures will not be required. WE MAY BE ADVERSELY AFFECTED BY REMEDIATION OBLIGATIONS MANDATED BY APPLICABLE ENVIRONMENTAL LAWS. In addition to operational standards, environmental laws also impose obligations on various entities to clean up contaminated properties or to pay for the cost of such remediation, often upon parties that did not actually cause the contamination. Accordingly, we may become liable, either contractually or by operation of law, for remediation costs even if the contaminated property is not presently owned or operated by us, is a landfill or other location where we have disposed 31 wastes, or if the contamination was caused by third parties during or prior to our ownership or operation of the property. Given the nature of the past industrial operations conducted by us and others at these properties, there can be no assurance that all potential instances of soil or groundwater contamination have been identified, even for those properties where an environmental site assessment has been conducted. We do not believe that any of our existing remediation obligations, including at third-party sites where we have been named a potentially responsible party, will require material capital or operating expenditures or will otherwise have a material adverse effect upon our business, results of operations or financial condition. However, future events, such as changes in existing laws or policies or their enforcement, or the discovery of currently unknown contamination, may give rise to additional remediation liabilities that may be material. WE DEPEND UPON KEY PERSONNEL. We are highly dependent on the continuing efforts of our executive officers, including Martin E. Franklin, our Chairman and Chief Executive Officer, and Ian G.H. Ashken, our Vice Chairman and Chief Financial Officer, and we likely will depend on the senior management of any significant business we acquire in the future. Our business, results of operations and financial condition could be materially adversely affected by the loss of any of these persons and the inability to attract and retain qualified replacements. WE ENTER INTO CONTRACTS WITH THE UNITED STATES GOVERNMENT AND OTHER GOVERNMENTS. We have entered into a contract with the United States government to supply penny blanks to the United States Mint. We have also entered into a contract with the Canadian government to supply penny blanks to the Royal Canadian Mint. These contracts contain termination provisions customary for government contracts. The United States government and Canadian government retain the right to terminate these contract at their convenience. These contracts are also subject to reduction or modification in the event of changes in government requirements or budgetary constraints. Our largest zinc products customer is the United States Mint, which comprised approximately 8% of our 2001 consolidated net sales (approximately 6% on a pro forma basis). The United States Mint announced in the fourth quarter of 2001 that it was implementing an inventory reduction program for all coinage. In addition, several times in recent years, proposed legislation has been introduced which, if passed, could reduce or eliminate the circulation of the penny. If production, use or demand for the U.S. penny is reduced, it could have a material adverse effect on our business, results of operations and financial condition. OUR OPERATING RESULTS CAN BE ADVERSELY AFFECTED BY CHANGES IN THE COST OR AVAILABILITY OF RAW MATERIALS. Pricing and availability of raw materials for use in our businesses can be volatile due to numerous factors beyond our control, including general, domestic and international economic conditions, labor costs, production levels, competition, import duties and tariffs and currency exchange rates. This volatility can significantly affect the availability and cost of raw materials for us, and may, therefore, have a material adverse effect on our business, results of operations and financial condition. 32 During periods of rising prices of raw materials, there can be no assurance that we will be able to pass any portion of such increases on to customers. Conversely, when raw material prices decline, customer demands for lower prices could result in lower sale prices and, to the extent we have existing inventory, lower margins. As a result, fluctuations in raw material prices could have a material adverse effect on our business, results of operations and financial condition. Some of the products we manufacture require particular types of glass, plastic, metal or other materials. Supply shortages for a particular type of material can delay production or cause increases in the cost of manufacturing our products. This could have a material adverse effect on our business, results of operations and financial condition. OUR BUSINESS COULD BE ADVERSELY AFFECTED BECAUSE OF RISKS WHICH ARE PARTICULAR TO INTERNATIONAL OPERATIONS. On a pro forma basis, approximately 10.8% of Jarden's net sales in 2001 was derived from sales outside of the United States. In addition, we anticipate that that international sales will be a growth area for our consumer products business. International sales (and the international operations of our customers) are subject to inherent risks which could adversely affect us, including, among other things: o fluctuations in the value of currencies; o unexpected changes in and the burdens and costs of compliance with a variety of foreign laws; o political and economic instability; o increases in duties and taxation; and o reversal of the current policies (including favorable tax and lending policies) encouraging foreign investment or foreign trade by our host countries. OUR PERFORMANCE CAN FLUCTUATE WITH THE FINANCIAL CONDITION OF THE RETAIL INDUSTRY. We sell our consumer products to retailers, including food, hardware, catalog and mass merchants, in the United States and Canada. A significant deterioration in the financial condition of our major customers could have a material adverse effect on our sales and profitability. We continually monitor and evaluate the credit status of our customers and attempt to adjust sales terms as appropriate. Despite these efforts, a bankruptcy filing by a key customer could have a material adverse effect on our business, results of operations and financial condition. In addition, as a result of the desire of retailers to more closely manage inventory levels, there is a growing trend among retailers to make purchases on a "just-in-time" basis. This requires us to shorten our lead time for production in certain cases and more closely anticipate demand, which could in the future require the carrying of additional inventories. 33 CLAIMS MADE AGAINST US BASED ON PRODUCT LIABILITY COULD HAVE A MATERIAL ADVERSE EFFECT ON OUR BUSINESS. As a producer and marketer of consumer products, we are subject to the risk of claims for product liability. We maintain product liability insurance, but there is a risk that our coverage will not be sufficient to insure against all claims which may be brought against us, or that we will not be able to maintain that coverage or obtain additional insurance covering existing or new products. If a product liability claim exceeding our insurance coverage were to be successfully asserted against us, it could have a material adverse effect on our business, results of operations and financial condition. WE DEPEND ON OUR PATENTS AND PROPRIETARY RIGHTS. Our success with our proprietary products depends, in part, on our ability to protect our current and future technologies and products and to defend our intellectual property rights. If we fail to adequately protect our intellectual property rights, competitors may manufacture and market products similar to ours. We cannot be sure that we will receive patents for any of our patent applications or that any existing or future patents that we receive or license will provide competitive advantages for our products. We also cannot be sure that competitors will not challenge, invalidate or avoid the application of any existing or future patents that we receive or license. In addition, patent rights may not prevent our competitors from developing, using or selling products that are similar or functionally equivalent to our products. Furthermore, the patents we maintain on the bags used for vacuum sealing expire in 2005 and the patents we maintain on our home vacuum packaging systems expire in 2009. WE DEPEND ON A SINGLE MANUFACTURING FACILITY FOR CERTAIN ESSENTIAL PRODUCTS. Certain of our products, including some using specially designed machines and proprietary cutting technology, are manufactured at a sole company-owned manufacturing facility. These facilities are subject to the normal hazards that could result in material damage to such facilities. Damage to any of these facilities, or prolonged interruption in the operations of any of these facilities for repairs or other reasons, could have a material adverse effect on our business, results of operations and financial condition. CERTAIN OF OUR EMPLOYEES ARE REPRESENTED BY LABOR UNIONS. As of December 31, 2001, approximately 215 of our employees were covered by collective bargaining agreements. These agreements expire at our consumer products facility (Muncie, Indiana) on October 15, 2006 and at our zinc products facility (Greeneville, Tennessee) on October 4, 2003. While we have not experienced a work stoppage, slowdown or strike during the past five years and management believes that its relationships with our collective bargaining units are good, no assurance can be made that we will not experience a work stoppage, slowdown or strike in the future. A work stoppage, slowdown or strike by our employees, or the employees of our suppliers or customers, could have a material adverse effect on our business, results of operations and financial condition. 34 FORWARD LOOKING STATEMENTS Certain statements we make in this prospectus, and other written or oral statements by us or our authorized officers on our behalf, may constitute "forward looking statements" within the meaning of the Federal securities laws. Forward-looking statements include statements concerning our plans, objectives, goals, strategies, future events, future revenues or performance, capital expenditures, financing needs, plans or intentions relating to acquisitions, our competitive strengths and weaknesses, our business strategy and the trends we anticipate in the industry and economies in which we operate and other information that is not historical information. Words or phrases such as "estimates," "expects," "anticipates," "projects," "plans," "intends," "believes" and variations of such words or similar expressions are intended to identify forward-looking statements. All forward-looking statements, including, without limitation, our examination of historical operating trends, are based upon our current expectations and various assumptions. Our expectations, beliefs and projections are expressed in good faith, and we believe there is a reasonable basis for them, but we cannot assure you that our expectations, beliefs and projections will be realized. Before you invest in the new notes, you should be aware that the occurrence of the events described in the immediately above section captioned "Risk Factors" and otherwise discussed elsewhere in this prospectus or in materials incorporated in this prospectus by reference to our other filings with the Commission, could have a material adverse affect on our business, financial condition and results of operation. The data included in this prospectus regarding markets and ranking, including the size of certain markets and our position and the position of our competitors within these markets, are based on independent industry publications, reports of government agencies or other published industry sources or our estimates based on management's knowledge and experience in the markets in which we operate. Our estimates have been based on information provided by customers, suppliers, trade and business organizations and other contacts in the markets in which we operate. We believe these estimates to be accurate as of the date of this prospectus. However, this information may prove to be inaccurate because of the method by which we obtained some of the data for our estimates or because this information cannot always be verified with complete certainty due to the limits on the availability and reliability of raw data, the voluntary nature of the data gathering process and other limitations and uncertainties inherent in a survey of market size. As a result, you should be aware that market, ranking and other similar data included in this prospectus, and estimates and beliefs based on that data, may not be reliable. 35 USE OF PROCEEDS This exchange offer is intended to satisfy our obligations under the registration rights agreement that we entered into relating to the old notes. We will not receive any proceeds from the exchange offer. You will receive, in exchange for old notes tendered by you in the exchange offer, new notes in like principal amount. The old notes surrendered in exchange for the new notes will be retired and cancelled and cannot be reissued. Accordingly, the issuance of the new notes will not result in any increase of our outstanding debt. We received approximately $143.5 million of net proceeds from the sale of the old notes. The net proceeds from the offering of the old notes were used principally to acquire the business of Tilia, to pay related fees and expenses, and for cash on hand. Our old credit facility was partially repaid using proceeds from the offering. The old credit facility was to mature on March 31, 2004 and the interest was based upon fixed increments over the adjusted LIBOR or the agent bank's alternate borrowing rate as defined in the old credit agreement. The resulting weighted average interest rate at the time of the refinancing was less than 5%. See "Description of Senior Indebtedness" for a description of our new credit facility. 36 RATIO OF EARNINGS TO FIXED CHARGES Our ratio of earnings to fixed charges for the five years ended December 31, 2001 are set forth below:
------------------------------------------------------------------ ----------------------------- FOR THE THREE MONTHS ENDED FOR THE YEAR ENDED DECEMBER 31, MARCH 31, ------------------------------------------------------------------ ----------------------------- ACTUAL ACTUAL ACTUAL ACTUAL ACTUAL PRO FORMA ACTUAL PRO FORMA 1997 1998 1999 2000 2001 2001 2002 2002 -------- ---------- --------- ---------- -------- ---------- ------------- -------------- Ratio of earnings to fixed charges 10.5 12.4 6.2 1.5 * 2.4 3.0 2.1 ======== ========== ========= ========== ======== ========== ============= ==============
* For the actual year ended December 31, 2001, the calculated ratio of earnings to fixed charges is less the one-to- one and represents a deficiency of approximately $125.6 million. The ratios of earnings to fixed charges are calculated as follows: (income before income taxes and minority interest) + (fixed charges) - (capitalized interest) ------------------------------------------------------------------------ (fixed charges) CAPITALIZATION The following table sets forth our cash and cash equivalents and capitalization, both on an actual basis and as adjusted to give effect to: o the November 2001 sales of our thermoformed plastics operations, comprised of the assets of our Triangle, TriEnda and Synergy World divisions, including the receipt in 2002 of $38 million of related tax refunds; and o the April 2002 acquisition of substantially all the assets of Tilia including the related refinancing of our senior credit facility and the offering of the old notes. This table should be read in conjunction with "Use of Proceeds," "Selected Consolidated Historical and Pro Forma Financial Data," "Unaudited Pro Forma Condensed Consolidated Financial Statements" and the consolidated financial statements of Jarden, including the related notes, incorporated by reference herein. As of March 31, 2002 -------------------------------- Actual As Adjusted ------------- --------------- (dollars in thousands) Cash and cash equivalents $ 4,614 $ 18,276 ============= =============== Debt including current installments Existing credit facility $ 57,366 $ - New senior credit facility Revolving credit facility - - Term loan - 50,000 Senior subordinated notes due 2012 - 147,654 Subordinated seller note due 2003 - 10,000 Subordinated seller note due 2004 - 5,000 ------------- --------------- Total debt 57,366 212,654 Total stockholders' equity 46,515 46,301 ------------- --------------- Total capitalization $ 103,881 $ 258,955 ============= =============== 37 SELECTED CONSOLIDATED HISTORICAL AND PRO FORMA FINANCIAL DATA The following table sets forth Jarden's selected financial data as of and for each of the years ended December 31, 1997, 1998, 1999, 2000 and 2001. The selected historical financial data set forth below has been derived from Jarden's audited consolidated financial statements and related notes for the respective fiscal years, incorporated by reference herein, and should be read in conjunction with those financial statements and notes thereto. The selected financial data as of and for the three months ended March 31, 2002 are derived from unaudited financial statements and should be read in conjunction with our Quarterly Report on Form 10-Q for the period ended March 31, 2002 incorporated herein by reference. On a stand alone basis, without the consolidation of its subsidiaries, Jarden has no independent assets or operations. The guarantees by its subsidiaries of the Notes are full and unconditional and joint and several. The subsidiaries that are not guarantors of the Notes are minor. There are no significant restrictions on our or the guarantors' ability to obtain funds from their respective subsidiaries by dividend or loan. The pro forma financial statements presented below should be read in conjunction with the Unaudited Pro Forma Condensed Consolidated Financial Statements which are contained elsewhere in this prospectus. See "Unaudited Pro Forma Condensed Consolidated Financial Statements." This selected financial data is not necessarily indicative of the results of future operations. 38
For the year ended December 31, For the three months ended March 31, ----------------------------------------------------------------- ------------------------------------ Actual Actual Actual Actual Actual Pro Forma Actual Actual Pro Forma ------ ------ ------ ------ ------ --------- -------- -------- --------- 1997 1998 1999 2000 2001 2001 2001 2002 2002 ------ ------ ------ ------ ------ --------- -------- -------- --------- (dollars in thousands, except per share data) STATEMENT OF OPERATIONS DATA Net sales $249,604 $258,489 $ 358,031 $ 357,356 $304,978 $425,504 $69,027 $47,565 $ 86,090 Costs and expenses Cost of sales 183,371 188,174 257,308 275,571 233,676 262,443 54,092 35,053 54,310 Selling, general and administrative expenses 34,868 37,452 55,322 56,019 52,212 104,199 12,376 8,378 22,086 Goodwill amortization 1,265 1,399 4,605 6,404 5,153 1,109 1,625 - - Special charges (credits) and reorganization expenses (b) - 1,260 2,314 380 4,978 6,126 (1,652) - - Loss (gain) on divestiture of assets and product lines - - (19,678) - 122,887 461 - - - -------- ---------- ---------- ---------- --------- -------- -------- -------- -------- Income (loss) before interest, taxes and minority interest 30,100 30,204 58,160 18,982 (113,928) 51,166 2,586 4,134 9,694 Interest expense, net 2,256 1,822 8,395 11,917 11,791 19,994 3,124 1,232 4,517 Income tax provision (benefit) 10,603 10,785 19,458 2,402 (40,443) 10,910 (205) (4,291) (3,426) Minority interest in gain (loss) of consolidated subsidiary - - - (259) 153 - 95 - - -------- ---------- ---------- ---------- --------- -------- -------- -------- -------- Income (loss) from continuing operations 17,241 17,597 30,307 4,922 (85,429) 20,262 (238) 7,193 8,603 Loss from discontinued operations (2,404) (1,870) (87) - - - - - - Extraordinary loss from early extinguishment of debt (net of income taxes) - - (1,028) - - - - - - -------- ---------- ---------- ---------- --------- -------- -------- -------- -------- Net income (loss) $ 14,837 $ 15,727 $ 29,192 $ 4,922 $ (85,429) $ 20,262 $ (238) $ 7,193 $ 8,603 ======== ========== ========== ========== ========= ======== ======== ======== ======== Basic earnings (loss) per share: Income (loss) from continuing operations $ 1.16 $ 1.24 $ 2.25 $ .39 $ (6.71) $ 1.59 $ (.02) $ .54 $ .64 Loss from discontinued operations (.16) (.13) (.01) - - - - - - Extraordinary loss from early extinguishment of debt (net of income taxes) - - (.07) - - - - - -------- ---------- ---------- ---------- --------- -------- -------- -------- -------- $ 1.00 $ 1.11 $ 2.17 $ .39 $ (6.71) $ 1.59 $ (.02) $ .54 $ .64 ======== ========== ========== ========== ========= ======== ======== ======== ======== Diluted earnings (loss) per share: Income (loss) from continuing operations $ 1.14 $ 1.22 $ 2.22 $ .39 $ (6.71) $ 1.59 $ (.02) $ .53 $ .63 Loss from discontinued operations (.16) (.13) (.01) - - - - - - Extraordinary loss from early extinguishment of debt (net of income taxes) - - (.07) - - - - - - -------- ---------- ---------- ---------- --------- -------- -------- -------- -------- $ .98 $ 1.09 $ 2.14 $ .39 $ (6.71) $ 1.59 $ (.02) $ .53 $ .63 ======== ========== ========== ========== ========= ======== ======== ======== ======== OTHER DATA Depreciation and amortization $ 10,385 $ 10,548 $ 17,697 $ 21,311 $ 18,797 $ 12,596 $5,383 $ 2,152 $ 2,710 Capital expenditures 7,897 11,909 16,628 13,637 9,707 8,691 2,822 768 1,591 BALANCE SHEET DATA (AT END OF PERIOD) Cash and cash equivalents $26,641 $21,454 $17,394 $ 3,303 $ 6,376 $21,070 5,564 $ 4,614 $ 18,276 Working capital 53,759 46,923 54,611 22,975 8,035 64,812 17,185 22,356 76,804 Total assets 166,577 165,831 338,751 308,739 161,303 309,708 316,180 145,626 315,910 Total debt 30,000 25,715 140,761 137,060 84,875 212,654 132,469 57,366 212,654 Total stockholders' equity 97,309 94,893 123,025 118,221 35,129 34,915 117,202 46,515 46,301 TRANSITIONAL DISCLOSURES REQUIRED BY SFAS 142 (B) Reported income (loss) before extraordinary item $ 30,220 $4,922 $(85,429) $20,262 $(238) Add back: Goodwill amortization net of tax expense 2,768 4,227 3,494 721 1,003 ----------- ----------- ----------- ---------- ----------- Adjusted income (loss) before extraordinary item $ 32,988 $9,149 $(81,935) $20,983 $765 ----------- ----------- ----------- ---------- ----------- Basic earnings(loss) per share: Reported income (loss) before extraordinary item $ 2.24 $ .39 $ (6.71) $ 1.59 $(.02)
39
Add back: Goodwill amortization net of tax .21 .33 .27 .06 .08 expense --------------------------------------------------------- Adjusted income (loss) before extraordinary item $2.45 $ .72 $ (6.44) $ 1.65 $.06 --------------------------------------------------------- Diluted earnings(loss) per share: Reported net income (loss) before extraordinary item $ 2.22 $ .39 $ (6.71) $ 1.59 $(.02) Add back: Goodwill amortization net of tax expense .20 .33 .27 .06 .08 --------------------------------------------------------- Adjusted income (loss) before extraordinary item $2.42 $ .72 $ (6.44) $ 1.65 $.06 --------------------------------------------------------- Reported net income (loss) $ 29,192 $4,922 $(85,429) $20,262 $(238) Add back: Goodwill amortization net of tax expense 2,768 4,227 3,494 721 1,003 --------------------------------------------------------- Adjusted net income (loss) $ 31,960 $9,149 $(81,935) $20,983 $765 --------------------------------------------------------- Basic earnings(loss) per share: $2.17 $ .39 $ (6.71) $ 1.59 $(.02) Reported net income (loss) .21 .33 .27 .06 .08 --------------------------------------------------------- Add back: Goodwill amortization net of tax expense $ 2.38 $ .72 $ (6.44) $ 1.65 $.06 --------------------------------------------------------- Adjusted net income (loss) Diluted earnings(loss) per share: Reported net income (loss) $ 2.14 $ .39 $ (6.71) $ 1.59 $(.02) Add back: Goodwill amortization net of tax expense .20 .33 .27 .06 .08 --------------------------------------------------------- Adjusted net income (loss) $2.34 $ .72 $ (6.44) $ 1.65 $.06 ---------------------------------------------------------
(a) Special charges (credits) and reorganization expenses were comprised of the following (in millions):
1998 1999 2000 2001 ---- ---- ---- ---- Costs to evaluate strategic options................................... $-- $-- $0.6 $1.4 Discharge of deferred compensation obligations........................ -- -- -- (4.1) Separation costs for former officers.................................. -- -- -- 2.6 Stock option compensation............................................. -- -- -- 2.4 Corporate restructuring costs......................................... -- -- -- 2.3 Costs to exit facilities.............................................. -- 2.3 -- 0.8 Reduction of long-term performance-based compensation................. -- -- (1.6) -- Litigation charges.................................................... -- -- 1.4 -- Items related to divested operations.................................. 1.3 -- -- (0.4) ---- ---- ---- ---- $1.3 $2.3 $0.4 $5.0 ==== ==== ==== ====
(b) In July 2001, the Financial Accounting Standards Board (FASB) issued Statements of Financial Accounting Standards No. 141 (SFAS 141), Business Combinations, and No. 142 (SFAS 142), Goodwill and Other Intangible Assets, effective for fiscal years beginning after December 15, 2001. Under the new rules, goodwill and intangible assets deemed to have indefinite lives will no longer be amortized but will be subject to annual impairment tests in accordance with the Statements. Other intangible assets will continue to be amortized over their useful lives. The Company applied the new rules on accounting for goodwill and other intangible assets beginning in first quarter of 2002 and has six months from the date of adoption to perform the first of the required impairment tests of goodwill and indefinite lived intangible assets. The Company has completed the first tests and, based on the results, will not record any charges related to the adoption of SFAS 142. The Company does not expect to record any charges related to the adoption of SFAS 142. The required transitional information is only presented for the years ended December 31, 1999, 2000, 2001 and the three months ended March 31, 2001. 40 SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT The following table sets forth certain information regarding beneficial ownership of our Common Stock as of July 12, 2002, by (i) each person or entity known to us owning beneficially 5% or more of our Common Stock, (ii) each of our directors and nominees for directors, (iii) each of our executive officers and (iv) all directors and executive officers as a group. Unless otherwise noted shares are owned directly or indirectly with sole voting and investment power. SHARES BENEFICIALLY NAME AND ADDRESS OWNED (1) PERCENT (1) - ---------------- ------------- ----------- Marlin Partners II, L.P. 555 Theodore Fremd Avenue Rye, NY 10580.............................. 1,294,200 (2) 9.1% First Manhattan Co. 437 Madison Avenue New York, NY 10022......................... 1,268,444 (3) 8.9% Dimension Fund Advisors Inc. 1299 Ocean Avenue, 11th Floor Santa Monica, CA 90401..................... 987,700 (4) 6.9% Kennedy Capital Management, Inc. 10829 Olive Blvd. St. Louis, MO 63141........................ 953,400 (5) 6.7% Martin E. Franklin......................... 1,994,371 (6) 14.0% Ian G.H. Ashken............................ 1,634,371 (7) 11.5% Douglas W. Huemme.......................... 47,350 (8) * Richard L. Molen........................... 54,800 (9) * Lynda W. Popwell........................... 50,850 (10) * David L. Swift............................. 56,200 (11) * J. David Tolbert........................... 17,994 (12) * Robert L. Wood............................. 46,000 (8) * Irwin D. Simon............................. -0- * All directors, nominees for directors, and executive officers as a group (10 persons).............................. 2,607,736 18.0% - --------------- * Less than 1% 41 (1) For purposes of this table, a person is deemed to have "beneficial ownership" of any share of Common Stock that such person has the right to acquire within 60 days. The number of shares beneficially owned reflected in this table and in the footnotes thereto give effect to the 2-for-1 split of our shares of common stock pursuant to which stockholders of record at the close of business on May 20, 2002 received, on or about June 3, 2002, one additional share of our common stock for every share of our common stock held. Percent of class is based on the Common Stock outstanding and entitled to vote as of July 12, 2002. There were 14,247,026 shares outstanding and entitled to vote as of July 12, 2002. (2) Martin E. Franklin, our Chairman and Chief Executive Officer, and Ian G.H. Ashken, our Vice Chairman, Chief Financial Officer, and Secretary, are each a managing member of Marlin Management, L.L.C., the general partner of Marlin Partners II, L.P. and may be deemed to be a beneficial owner of the 1,294,200 shares of our common stock held by Marlin Partners II, L.P. Also see notes 6 and 7 below. (3) Based solely on Schedule 13G/A filed with the Securities and Exchange Commission on February 5, 2002. The Schedule 13G/A further reports that First Manhattan Co. has sole dispositive and voting power with respect to 36,100 of such shares, shared dispositive power with respect to 1,232,344 of such shares, and shared voting power with respect to 1,212,564 of such shares. (4) Based solely on Schedule 13G filed with the Securities and Exchange Commission on February 12, 2002. (5) Based solely on Schedule 13G filed with the Securities and Exchange Commission on February 14, 2002. (6) Includes 100,000 shares of unvested restricted stock and 1,294,200 shares beneficially owned by Marlin Partners II, L.P. (7) Includes 40,000 shares of unvested restricted stock and 1,294,200 shares beneficially owned by Marlin Partners II, L.P. (8) Includes 44,000 shares subject to outstanding options to purchase Common Stock which are exercisable within 60 days. (9) Includes 52,100 shares subject to outstanding options to purchase Common Stock which are exercisable within 60 days. (10) Includes 48,000 shares subject to outstanding options to purchase Common Stock which are exercisable within 60 days. (11) Includes 52,800 shares subject to outstanding options to purchase Common Stock which are exercisable within 60 days. (12) Includes 10,750 shares subject to outstanding options to purchase Common Stock which are exercisable within 60 days. 42 THE EXCHANGE OFFER PURPOSE OF THE EXCHANGE OFFER We issued the old notes on April 24, 2002, to Banc of America Securities LLC, CIBC World Markets Corp., and NatCity Investments Inc., the initial purchasers, pursuant to a purchase agreement, dated April 10, 2002, among Jarden, the guarantors, and the initial purchasers. The initial purchasers subsequently sold the old notes to "qualified institutional buyers", as defined in Rule 144A under the Securities Act, in reliance on Rule 144A, and outside the United States under Regulation S of the Securities Act. As a condition to the sale of the old notes, we entered into a registration rights agreement with the initial purchasers on April 24, 2002. Pursuant to the registration rights agreement, we agreed that we would: o file a registration statement with the Commission with respect to the new notes no later than 60 days after the date of initial issuance of the old notes; o use our best efforts to cause the registration statement to be declared effective by the Commission at the earliest possible time but in no event later than 180 days after the date of initial issuance of the old notes; o use our best efforts to consummate the exchange offer at the earliest practicable day after the effective date of the registration statement of the new notes but in no event later than 30 business days after the effective date of the registration statement; o file a shelf registration statement for the resale of the new notes if we cannot effect an exchange offer and in certain other circumstances; o use our best efforts to cause the shelf registration statement, if necessary, to be declared effective; and o use our best efforts to keep the shelf registration statement continuously effective for a period of at least two years subject to certain provisions of the registration rights agreement. Upon the effectiveness of the registration statement, we will offer the new notes in exchange for the old notes. RESALE OF THE NEW NOTES Based upon an interpretation by the staff of the Commission contained in no-action letters issued to third parties, we believe that you may exchange old notes for new notes in the ordinary course of business. For further information on the Commission's position, see Exxon Capital Holdings Corporation, available April 13, 1989, Morgan Stanley & Co. Incorporated, available June 5, 1991 and Shearman & Sterling, available July 2, 1993, and other interpretive letters to similar effect. You will be allowed to resell new notes to the public without further 43 registration under the Securities Act and without delivering to purchasers of the new notes a prospectus that satisfies the requirements of Section 10 of the Securities Act so long as you do not participate, do not intend to participate, and have no arrangement with any person to participate, in a distribution of the new notes. However, the foregoing does not apply to you if you are: o a broker-dealer who purchases the new notes directly from us to resell pursuant to Rule 144A or any other available exemption under the Securities Act; or o an "affiliate" of ours within the meaning of Rule 405 under the Securities Act. In addition, if: o you are a broker-dealer; or o you acquire new notes in the exchange offer for the purpose of distributing or participating in the distribution of the new notes, you cannot rely on the position of the staff of the Commission contained in the no-action letters mentioned above and must comply with the registration and prospectus delivery requirements of the Securities Act in connection with any resale transaction, unless an exemption from registration is otherwise available. Each broker-dealer that receives new notes for its own account in exchange for old notes, which the broker-dealer acquired as a result of market-making activities or other trading activities, must acknowledge that it will deliver a prospectus in connection with any resale of the new notes. The letter of transmittal states that by so acknowledging and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. A broker-dealer may use this prospectus, as it may be amended or supplemented from time to time, in connection with resales of new notes received in exchange for old notes which the broker-dealer acquired as a result of market-making or other trading activities. TERMS OF THE EXCHANGE OFFER Upon the terms and subject to the conditions described in this prospectus and in the letter of transmittal, we will accept any and all outstanding old notes validly tendered and not withdrawn before the expiration date for an equal amount of new notes which are registered under the Securities Act, subject to the satisfaction of certain conditions. We will issue $1,000 principal amount of new notes in exchange for each $1,000 principal amount of outstanding old notes surrendered pursuant to the exchange offer. You may tender old notes only in integral multiples of $1,000. The form and terms of the new notes are the same as the form and terms of the old notes except that: o we have registered the new notes under the Securities Act and, therefore, the new notes will not bear legends restricting their transfer; and 44 o holders of the new notes will not be entitled to any special mandatory redemption provisions. The new notes will evidence the same debt as the old notes and will be issued under the same indenture, so the new notes and the old notes will be treated as a single class of debt securities under the indenture. As of the date of this prospectus, $150,000,000 in aggregate principal amount of the old notes is outstanding. Only registered holders of the old notes, or their legal representative or attorney-in-fact, as reflected on the records of the trustee under the indenture, may participate in the exchange offer. We will not set a fixed record date for determining registered holders of the old notes entitled to participate in the exchange offer. You do not have any appraisal or dissenters' rights under the indenture in connection with the exchange offer. We intend to conduct the exchange offer in accordance with the provisions of the registration rights agreement and the applicable requirements of the Securities Act, the Exchange Act and the rules and regulations of the Commission. We will be deemed to have accepted validly tendered old notes when, as and if we had given oral or written notice of acceptance to the exchange agent. The exchange agent will act as your agent for the purposes of receiving the new notes from us. If you tender old notes in the exchange offer, you will not be required to pay brokerage commissions or fees or, subject to the instructions in the letter of transmittal. We will pay all charges and expenses, other than applicable taxes, in connection with the exchange offer. EXPIRATION DATE; EXTENSIONS; AMENDMENTS The term "expiration date" will mean 5:00 p.m., New York City time, on __________, 2002, unless we, in our sole discretion, extend the exchange offer, in which case the term "expiration date" will mean the latest date and time to which we extend the exchange offer. To extend the exchange offer, we will: o notify the exchange agent of any extension orally or in writing; and o notify the registered holders of the old notes by means of a press release or other public announcement, each before 9:00 a.m., New York City time, on the next business day after the previously scheduled expiration date. We reserve the right, in our reasonable discretion: o to delay accepting any old notes until such time as the conditions listed under "-Conditions" are satisfied or waived; o to extend the exchange offer; 45 o if any conditions listed below under "-Conditions" are not satisfied, to terminate the exchange offer by giving oral or written notice to the exchange agent; or o to waive any conditions in any respect, by giving oral or written notice to the exchange agent. If we terminate the exchange offer, we will return the old notes deposited by the holder of the old notes in accordance with the procedures described in this prospectus under "-Return of Notes." Any delay in acceptance, extension, or termination will be followed as soon as practicable by a press release or other public announcement or post-effective amendment. If the exchange offer is amended in a manner determined by us to constitute a material change, we will promptly disclose that amendment by means of a prospectus supplement or post-effective amendment that will be distributed to the holders. We will also extend the exchange offer for a period of five to ten business days, depending upon the significance of the amendment and the manner of disclosure to the holders, if the exchange offer would otherwise expire during the five to ten business day period. INTEREST ON THE NEW NOTES The new notes will each accrue interest on the same terms as the old notes. Interest on the notes will accrue at the rate of 9 3/4% per annum and will be payable semi-annually in arrears on May 1 and November 1, commencing on November 1, 2002. Jarden will make each interest payment to the Holders of record on the immediately preceding April 15 and October 15. Old notes accepted for exchange will not receive accrued interest thereon at the time of exchange. However, each new note will bear interest from the most recent date to which interest has been paid on the old notes, or if no interest has been paid on the old notes or the new notes, from April 24, 2002. PROCEDURES FOR TENDERING You may tender old notes in the exchange offer only if you are a registered holder of old notes. To tender in the exchange offer, you must: o complete, sign and date the letter of transmittal or a facsimile of the letter of transmittal; o have the signatures guaranteed if required by the letter of transmittal; and o mail or otherwise deliver the letter of transmittal or the facsimile of the letter of transmittal to the exchange agent at the address listed below under "-Exchange Agent" for receipt before the expiration date. In addition, either: 46 o the exchange agent must receive certificates for the old notes along with the letter of transmittal into its account at the depositary pursuant to the procedure for book-entry transfer described below before the expiration date; o the exchange agent must receive a timely confirmation of a book-entry transfer of the old notes, if the procedure is available, into its account at the depositary pursuant to the procedure for book-entry transfer described below before the expiration date; or o you must comply with the guaranteed delivery procedures described below. Your tender, if not withdrawn before the expiration date, will constitute an agreement between you and us in accordance with the terms and subject to the conditions described in this prospectus and in the letter of transmittal. The method of delivery of old notes and the letter of transmittal and all other required documents to the exchange agent is at your election and risk. We recommend that instead of delivery by mail, you use an overnight or hand delivery service, properly insured. In all cases, you should allow sufficient time to assure delivery to the exchange agent before the expiration date. You should not send letters of transmittal or old notes to us. You may request your respective brokers, dealers, commercial banks, trust companies or nominees to effect the transactions described above for you. If you are a beneficial owner of old notes whose old notes are registered in the name of a broker, dealer, commercial bank, trust company or other nominee and you wish to tender your old notes, you should contact the registered holder promptly and instruct the registered holder to tender on your behalf. If you wish to tender on your own behalf, before completing and executing the letter of transmittal and delivering the old notes you must either: o make appropriate arrangements to register ownership of the old notes in your name; or o obtain a properly completed bond power from the registered holder. The transfer of registered ownership may take considerable time. Unless the old notes are tendered: o by a registered holder who has not completed the box entitled "Special Issuance Instructions" or the box entitled "Special Delivery Instructions" on the letter of transmittal; or o for the account of: o a member firm of a registered national securities exchange or of the National Association of Securities Dealers, Inc.; o a commercial bank or trust company located or having an office or correspondent in the United States; or 47 o an "eligible guarantor institution" within the meaning of Rule 17Ad-15 under the Exchange Act that is a member of one of the recognized signature guarantee programs identified in the letter of transmittal, an eligible guarantor institution must guarantee the signatures on a letter of transmittal or a notice of withdrawal described below under "-Withdrawal of Tenders". If the letter of transmittal is signed by a person other than the registered holder, the old notes must be endorsed or accompanied by a properly completed bond power, signed by the registered holder as the registered holder's name appears on the old notes. If the letter of transmittal or any old notes or bond powers are signed by trustees, executors, administrators, guardians, attorneys-in-fact, officers of corporations or others acting in a fiduciary or representative capacity, they should so indicate when signing, and unless waived by us, they must submit evidence satisfactory to us of their authority to so act with the letter of transmittal. The exchange agent and the depositary have confirmed that any financial institution that is a participant in the depositary's system may utilize the depositary's Automated Tender Offer Program ("ATOP") to tender notes. Holders of old notes utilizing the ATOP system must transmit to the exchange agent, on or before the expiration date, a computer-generated message through the ATOP system that is received by the exchange agent and which forms a part of a confirmation of book-entry transfer in which you acknowledge and agree to be bound by the terms of the letter of transmittal. We will determine in our sole discretion all questions as to the validity, form, eligibility, including time of receipt, acceptance and withdrawal of tendered old notes, which determination will be final and binding. We reserve the absolute right to reject any and all old notes not properly tendered or any old notes our acceptance of which would, in the opinion of our counsel, be unlawful. We also reserve the right to waive any defects, irregularities or conditions of tender as to particular old notes. Our interpretation of the terms and conditions of the exchange offer, including the instructions in the letter of transmittal, will be final and binding on all parties. Unless waived, you must cure any defects or irregularities in connection with tenders of old notes within the time we determine. Although we intend to notify you of defects or irregularities with respect to tenders of old notes, neither we, the exchange agent nor any other person will incur any liability for failure to give you that notification. Unless waived, we will not deem tenders of old notes to have been made until you cure the defects or irregularities. While we have no present plan to acquire any old notes that are not tendered in the exchange offer or to file a registration statement to permit resales of any old notes that are not tendered in the exchange offer, we reserve the right in our sole discretion to purchase or make offers for any old notes that remain outstanding after the expiration date. We also reserve the right to terminate the exchange offer, as described below under "-Conditions", and, to the extent permitted by applicable law, purchase old notes in the open market, in privately negotiated transactions or otherwise. The terms of any of those purchases or offers could differ from the terms of the exchange offer. 48 If you wish to tender old notes in exchange for new notes in the exchange offer, we will require you to represent that: o you are not an affiliate of ours; o you are not a broker-dealer tendering old notes acquired for your own account directly from us; o you will acquire any new notes in the ordinary course of your business; and o you are not engaged in, and do not intend to engage in, and have no arrangement or understanding to participate in, a distribution of the new notes to be issued in the exchange offer. In addition, in connection with the resale of new notes, any participating broker-dealer who acquired the old notes for its own account as a result of market-making or other trading activities must deliver a prospectus meeting the requirements of the Securities Act. The Commission has taken the position that participating broker-dealers may fulfill their prospectus delivery requirements with respect to the new notes, other than a resale of an unsold allotment from the original sale of the Notes, with the prospectus contained in the registration statement. RETURN OF NOTES If we do not accept any tendered old notes for any reason described in the terms and conditions of the exchange offer or if you withdraw any tendered old notes or submit old notes for a greater principal amount than you desire to exchange, we will return the unaccepted, withdrawn or non-exchanged old notes without expense to you as promptly as practicable after the expiration or termination of the exchange offer. In the case of old notes tendered by book-entry transfer into the exchange agent's account at the depositary pursuant to the book-entry transfer procedures described below, we will credit the old notes to an account maintained with the depositary as promptly as practicable. BOOK-ENTRY TRANSFER The exchange agent will make a request to establish an account with respect to the old notes at the depositary for purposes of the exchange offer within two business days after the date of this prospectus, and any financial institution that is a participant in the depositary's systems may make book-entry delivery of old notes by causing the depositary to transfer the old notes into the exchange agent's account at the depositary in accordance with the depositary's procedures for transfer. However, although delivery of old notes may be effected through book-entry transfer at the depositary, you must transmit and the exchange agent must receive, the letter of transmittal or a facsimile of the letter of transmittal, with any required signature guarantees and any other required documents, at the address below under "-Exchange Agent" on or before the expiration date or pursuant to the guaranteed delivery procedures described below. GUARANTEED DELIVERY PROCEDURES 49 If you wish to tender your old notes, but time will not permit a letter of transmittal, certificates representing the old notes to be tendered or other required documents to reach the exchange agent before the expiration date, or if the procedure for book-entry transfer cannot be completed on or before the expiration date, you may effect a tender if: o the tender is made by or through an eligible guarantor institution; o before the expiration date, the exchange agent receives from the eligible guarantor institution a properly completed and duly executed notice of guaranteed delivery, substantially in the form provided by us, that: o states the name and address of the holder of the old notes, the name(s) in which the old notes are registered and the principal amount of old notes tendered, o states that the tender is being made by that notice of guaranteed delivery, and o guarantees that, within three New York Stock Exchange trading days after the expiration date, the eligible guarantor institution will deposit with the exchange agent the letter of transmittal, together with the certificates representing the old notes in proper form for transfer or a confirmation of a book-entry transfer, as the case may be, and any other documents required by the letter of transmittal; and o within three New York Stock Exchange trading days after the expiration date, the exchange agent receives a properly executed letter of transmittal, as well as the certificates representing all tendered old notes in proper form for transfer or a book-entry confirmation, as the case may be, and all other documents required by the letter of transmittal. Upon request, the exchange agent will send to you a notice of guaranteed delivery if you wish to tender your old notes according to the guaranteed delivery procedures described above. WITHDRAWAL OF TENDERS Except as otherwise provided in this prospectus, you may withdraw tenders of old notes at any time before 5:00 p.m., New York City time, on the expiration date. To withdraw a tender of old notes in the exchange offer, the exchange agent must receive a written or facsimile transmission notice of withdrawal at its address listed in this prospectus before the expiration date. Any notice of withdrawal must: o specify the name of the person who deposited the old notes to be withdrawn; o identify the old notes to be withdrawn, including the principal amount of the old notes; and o be signed in the same manner as the original signature on the letter of transmittal by which the old notes were tendered, including any required signature guarantees. 50 We will determine in our sole discretion all questions as to the validity, form and eligibility of the notices, and our determination will be final and binding on all parties. We will not deem any properly withdrawn old notes to have been validly tendered for purposes of the exchange offer, and we will not issue new notes with respect to those old notes, unless you validly re-tender the withdrawn old notes. You may re-tender properly withdrawn old notes by following one of the procedures described above under "-Procedures for Tendering" at any time before the expiration date. CONDITIONS Notwithstanding any other term of the exchange offer, we will not be required to accept for exchange, or exchange the new notes for, any old notes, and may terminate the exchange offer as provided in this prospectus before the acceptance of the old notes, if: o the exchange offer violates applicable law, rules or regulations or an applicable interpretation of the staff of the Commission; o an action or proceeding has been instituted or threatened in any court or by any governmental agency which might materially impair our ability to proceed with the exchange offer (the term "threatened" means a written demand or statement has been made, or a written notice has been given, that would lead a prudent person to conclude that such an action or proceeding is likely to be asserted, commenced, taken, or otherwise pursued in the future); or o all governmental approvals which we deem necessary for the completion of the exchange offer have not been obtained. If we determine in our reasonable discretion that any of these conditions are not satisfied, we may: o refuse to accept any old notes and return all tendered old notes to you; o extend the exchange offer and retain all old notes tendered before the exchange offer expires, subject, however, to your rights to withdraw the old notes; or o waive the unsatisfied conditions with respect to the exchange offer and accept all properly tendered old notes that have not been withdrawn. If the waiver constitutes a material change to the exchange offer, we will promptly disclose the waiver by means of a prospectus supplement that we will distribute to the registered holders of the old notes. SHELF REGISTRATION Pursuant to the registration rights agreement, in the event that: 51 o we are not required to file a registration statement or permitted to consummate the exchange offer because the exchange offer is not permitted by applicable law or Commission policy; or o a holder of old notes (as defined in the registration rights agreement) so requests under certain circumstances, we will file with the Commission a shelf registration statement to register for public resale the old notes held by you if you provide us with the necessary information for inclusion in the shelf registration statement. LIQUIDATED DAMAGES Pursuant to the registration rights agreement, if: o we do not file the registration statement with the Commission on or prior to the 60th day following the issuance of the old notes; o we do not cause the registration statement to become effective on or prior to the 180th day following the date of initial issuance of the old notes; o we do not complete the exchange offer on or prior to the 30th business day after the effective date of the registration statement for the new notes; o we are obligated to file a shelf registration statement and we do not file the shelf registration statement with the Commission on or prior to the 60th day following the date on which we have notice of the filing obligation; o we are obligated to file a shelf registration statement and the Commission does not declare the shelf registration statement effective on or prior to the 120th day following the deadline for filing the shelf registration statement; or o the registration statement or the shelf registration statement, as the case may be, is declared effective but thereafter ceases to be effective or useable for its intended purpose without being succeeded immediately by a post-effective amendment to such registration statement that cures such failure and is declared effective, with each of the items above constituting a "registration default", we agreed to pay liquidated damages to the holders, with respect to the first 90-day period immediately following the occurrence of the first registration default in an amount equal to $.05 per week per $1,000 principal amount of notes held by such holder. The amount of the liquidated damages will increase by an additional $.05 per week per $1,000 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 for all registration defaults of $.50 per week per $1,000 principal amount of old notes. Following the cure of all registration defaults, the accrual of liquidated damages will cease. 52 EXCHANGE AGENT We have appointed The Bank of New York as exchange agent for the exchange offer. You should direct questions and requests for assistance, requests for additional copies of this prospectus or the letter of transmittal and requests for a notice of guaranteed delivery to the exchange agent addressed as follows: By Registered or Certified Mail: The Bank of New York Corporate Trust Operations Reorganization Unit 101 Barclay Street- 7 East New York, New York 10286 Attn.: Diane Amoroso Telephone # 212-815-3738 Fax # 212-298-1915 By Hand/Overnight Delivery: The Bank of New York Corporate Trust Operations Reorganization Unit 101 Barclay Street- 7 East New York, New York 10286 Attn.: Diane Amoroso Delivery to an address other than the one stated above or transmission via a facsimile number other than the one stated above will not constitute a valid delivery. FEES AND EXPENSES We will bear all expenses incident to our or the guarantors' performance of or compliance with the registration rights agreement, regardless of whether this registration statement becomes effective, including without limitation: o all registration and filing fees and expenses (including filings made by any initial purchaser or holder of notes with the National Association of Securities Dealers, Inc. (and, if applicable, the fees and expenses of any "qualified independent underwriter" and its counsel that may be required by the rules and regulations of the NASD)); o all fees and expenses for compliance with Federal and state securities laws; o all expenses of printing (including printing certificates for the new notes to be issued in the exchange offer and printing of prospectuses), messenger and delivery services and telephone; o all fees and disbursements of counsel for us, the guarantors and, as discussed below, 53 the holders of old notes; and o all fees and disbursements of our and the guarantors' independent certified public accountants. We will bear our 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 us or the guarantors. In connection with any registration statement required by the registration rights agreement, we and the guarantors will reimburse the initial purchasers and the holders of notes being tendered in the exchange offer and/or resold pursuant to the "Plan of Distribution" contained in prospectus or registered pursuant to a shelf registration statement, as applicable, for the reasonable fees and disbursements of not more than one counsel. CONSEQUENCE OF FAILURES TO EXCHANGE Participation in the exchange offer is voluntary. We urge you to consult your financial and tax advisors in making your decisions on what action to take. Old notes that are not exchanged for new notes pursuant to the exchange offer will remain restricted securities. Accordingly, those old notes may be resold only: o to a person whom the seller reasonably believes is a qualified institutional buyer in a transaction meeting the requirements of Rule 144A under the Securities Act; o in a transaction meeting the requirements of Rule 144 under the Securities Act; o outside the United States to a foreign person in a transaction meeting the requirements of Rule 903 or 904 of Regulation S under the Securities Act; o in accordance with another exemption from the registration requirements of the Securities Act and based upon an opinion of counsel if we so request; o to us; or o pursuant to an effective registration statement. In each case, the old notes may be resold only in accordance with any applicable blue sky or securities laws of any state of the United States or any other applicable jurisdiction. The foregoing description of the exchange offer contained a summary of certain provisions of the registration rights agreement, which is incorporated herein by reference. It does not restate that agreement in its entirety. We urge you to read the registration rights agreement in its entirety because it, and not this description, defines your registration rights as holders of the notes. 54 DESCRIPTION OF THE NEW NOTES The form and terms of the new notes and the old notes are identical in all material respects, except that the special mandatory redemption provisions and the transfer restrictions applicable to the old notes do not apply to the new notes. The old notes were, and the new notes will be, issued under an indenture dated as of April 24, 2002 between Jarden Corporation, the guarantors, and The Bank of New York, as Trustee. The terms of the new notes include those stated in the indenture and those made part of the indenture by reference to the Trust Indenture Act of 1939, as amended. The following description is a summary of the material provisions of the indenture. It does not restate the agreement in its entirety. We urge you to read the indenture because it, and not this description, defines your rights as holders of the notes. Copies of the indenture are available as set forth below under "Where You Can Find More Information." You can find the definitions of certain terms used in this description under the subheading "--Certain Definitions." Certain defined terms used in this description but not defined below under "--Certain Definitions" have the meanings assigned to them in the indenture. In this description, the word "Jarden" refers only to Jarden Corporation and not to any of its subsidiaries. The registered holder of a note will be treated as the owner of it for all purposes. Only registered holders will have rights under the indenture. BRIEF DESCRIPTION OF THE NEW NOTES AND THE GUARANTEES The New Notes The new notes: o will be general unsecured obligations of Jarden; o will be subordinated in right of payment to all existing and future Senior Debt of Jarden; o will be pari passu in right of payment with any future senior subordinated indebtedness of Jarden issued under the indenture; and o will be unconditionally guaranteed in full by the Guarantors on a joint and several basis. See "Risk Factors - Federal and state statutes allow courts, under specific circumstances, to void guarantees and require noteholders to return payments received from guarantors" and "Description of the New Notes - Subsidiary Guarantees." The Guarantees The new notes will be unconditionally guaranteed in full by all of Jarden's domestic subsidiaries on a joint and several basis. See "Risk Factors - Federal and state statutes allow courts, under specific circumstances, to void guarantees and require noteholders to return 55 payments received from guarantors" and "Description of the New Notes - Subsidiary Guarantees." Each guarantee of the new notes: o will be a general unsecured obligation of the Guarantor; o will be subordinated in right of payment to all existing and future Senior Debt of the Guarantor issued under the indenture; and o will be pari passu in right of payment with any future senior subordinated indebtedness of the Guarantor. As indicated above and as discussed in detail below under the caption "--Subordination," payments on the new notes and under the guarantees of the notes will be subordinated to the payment of Senior Debt. The indenture will permit us and the Guarantors to incur additional Senior Debt. As of the date of the indenture, all of our subsidiaries will be "Restricted Subsidiaries." However, under the circumstances described below under the subheading "--Certain Covenants--Designation of Restricted and Unrestricted Subsidiaries," we will be permitted to designate certain of our subsidiaries as "Unrestricted Subsidiaries." Our Unrestricted Subsidiaries will not be subject to many of the restrictive covenants in the indenture and will not guarantee the notes. PRINCIPAL, MATURITY AND INTEREST Jarden will issue in this offering new notes in an aggregate principal amount of approximately $150.0 million. All notes issued under the indenture will be treated as a single class for all purposes under the indenture, including, without limitation, waivers, amendments, redemptions and offers to purchase. Jarden will issue notes in denominations of $1,000 and integral multiples of $1,000. The notes will mature on May 1, 2012. Interest on the notes will accrue at the rate of 9 3/4% per annum and will be payable semi-annually in arrears on May 1 and November 1, commencing on November 1, 2002. Jarden will make each interest payment to the Holders of record on the immediately preceding April 15 and October 15. Interest on the new notes will accrue from the date of original issuance or, if interest has already been paid, from the date it was most recently paid. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. METHODS OF RECEIVING PAYMENTS ON THE NOTES If a Holder of $1.0 million or more of notes has given wire transfer instructions to Jarden, Jarden will pay all principal, interest and premium and Liquidated Damages, if any, on that Holder's notes in accordance with those instructions. All other payments on notes will be made at the office or agency of the paying agent and registrar unless Jarden elects to make interest payments by check mailed to the Holders at their address set forth in the register of Holders. PAYING AGENT AND REGISTRAR FOR THE NOTES 56 The trustee will initially act as paying agent and registrar. Jarden may change the paying agent or registrar without prior notice to the Holders of the notes, and Jarden or any of its Subsidiaries may act as paying agent or registrar. TRANSFER AND EXCHANGE A Holder may transfer or exchange notes in accordance with the indenture. The registrar and the trustee may require a Holder, among other things, to furnish appropriate endorsements and transfer documents in connection with a transfer of notes. Holders will be required to pay all taxes due on transfer. Jarden is not required to transfer or exchange any note selected for redemption. Also, Jarden is not required to transfer or exchange any note for a period of 15 days before a selection of notes to be redeemed. SUBSIDIARY GUARANTEES The notes will be unconditionally guaranteed in full by each of Jarden's current and future Domestic Subsidiaries. These Subsidiary Guarantees will be joint and several obligations of the Guarantors. Each Subsidiary Guarantee will be subordinated to the prior payment in full of all Senior Debt of that Guarantor. The obligations of each Guarantor under its Subsidiary Guarantee will be limited as necessary to prevent that Subsidiary Guarantee from constituting a fraudulent conveyance under applicable law. See "Risk Factors--Federal and State statutes allow courts, under specific circumstances, to void guarantees and require noteholders to return payments received from guarantors." A Guarantor may not sell or otherwise dispose of all or substantially all of its assets to, or consolidate with or merge with or into (whether or not such Guarantor is the surviving Person), another Person, other than Jarden or another Guarantor, unless: o immediately after giving effect to that transaction, no Default or Event of Default exists; and o either: o the Person acquiring the property in any such sale or disposition or the Person formed by or surviving any such consolidation or merger assumes all the obligations of that Guarantor under the indenture, its Subsidiary Guarantee and the registration rights agreement pursuant to a supplemental indenture satisfactory to the trustee; or o the Net Proceeds of such sale or other disposition are applied in accordance with the applicable provisions of the indenture. The Subsidiary Guarantee of a Guarantor will be released: o in connection with any sale or other disposition of all or substantially all of the assets of that Guarantor (including by way of merger or consolidation) to a Person that is not (either before or after giving effect to such transaction) a Subsidiary of Jarden, if 57 the sale or other disposition complies with the "Asset Sale" provisions of the indenture; o in connection with any sale of all of the Capital Stock of a Guarantor to a Person that is not (either before or after giving effect to such transaction) a Subsidiary of Jarden, if the sale complies with the "Asset Sale" provisions of the indenture; or o if Jarden designates any Restricted Subsidiary that is a Guarantor as an Unrestricted Subsidiary in accordance with the applicable provisions of the indenture. See "--Repurchase at the Option of Holders--Asset Sales" and "--Certain Covenants-- Designation of Restricted and Unrestricted Subsidiaries." SUBORDINATION The payment of principal, interest and premium and Liquidated Damages, if any, on the notes will be subordinated to the prior payment in full of all Senior Debt of Jarden, including Senior Debt incurred after the date of the indenture. In the event of any distribution to creditors of Jarden: o in a liquidation or dissolution of Jarden; o in a bankruptcy, reorganization, insolvency, receivership or similar proceeding relating to Jarden or its property; o in an assignment for the benefit of creditors; or o in any marshaling of Jarden's assets and liabilities; the holders of Senior Debt will be entitled to receive payment in full of all Obligations due in respect of Senior Debt (including interest after the commencement of any bankruptcy proceeding at the rate specified in the applicable Senior Debt) before the Holders of notes will be entitled to receive any payment with respect to the notes (except that Holders of notes may receive and retain Permitted Junior Securities and payments made from the trust described under "--Legal Defeasance and Covenant Defeasance"). Jarden also may not make any payment in respect of the notes (except in Permitted Junior Securities or from the trust described under "--Legal Defeasance and Covenant Defeasance") if: o a payment default on Designated Senior Debt occurs and is continuing beyond any applicable grace period; or o any other default occurs and is continuing on any series of Designated Senior Debt that permits holders of that series of Designated Senior Debt to accelerate its maturity and the trustee and Jarden receive a notice of such default (a "Payment Blockage Notice") from the holders of any Designated Senior Debt (or their representative). 58 Payments on the notes may and will be resumed: o in the case of a payment default, upon the date on which such default is cured or waived; and o in the case of a nonpayment default, upon the earlier of the date on which such nonpayment default is cured or waived or 179 days after the date on which the applicable Payment Blockage Notice is received, unless the maturity of any Designated Senior Debt has been accelerated. No new Payment Blockage Notice may be delivered unless and until: o 360 days have elapsed since the delivery of the immediately prior Payment Blockage Notice; and o all scheduled payments of principal, interest and premium and Liquidated Damages, if any, on the notes that have come due have been paid in full in cash. No nonpayment default that existed or was continuing on the date of delivery of any Payment Blockage Notice to the trustee will be, or be made, the basis for a subsequent Payment Blockage Notice. If the trustee or any Holder of the notes receives a payment in respect of the notes (except in Permitted Junior Securities or from the trust described under "--Legal Defeasance and Covenant Defeasance") when: o the payment is prohibited by these subordination provisions; and o the trustee or the Holder has actual knowledge that the payment is prohibited the trustee or the Holder, as the case may be, will hold the payment in trust for the benefit of the holders of Senior Debt. Upon the proper written request of the holders of Senior Debt, the trustee or the Holder, as the case may be, will deliver the amounts in trust to the holders of Senior Debt or their proper representative. Jarden must promptly notify holders of Senior Debt (or their representatives) upon the occurrence of an Event of Default. As a result of the subordination provisions described above, in the event of a bankruptcy, liquidation or reorganization of Jarden, Holders of notes may recover less ratably than creditors of Jarden who are holders of Senior Debt. See "Risk Factors-- Your right to receive payments on the notes is junior to our existing senior indebtedness and possibly all of our future borrowings. Further, the guarantees of the new notes are junior to all of the guarantors' existing senior indebtedness and possibly to all their future borrowings." The obligations of each Guarantor under its Subsidiary Guarantee will be subordinated to the Senior Debt of that Guarantor on the same terms described above. 59 OPTIONAL REDEMPTION At any time prior to May 1, 2005, Jarden may on any one or more occasions redeem up to 35% of the aggregate principal amount of notes issued under the indenture at a redemption price of 109.750% of the principal amount, plus accrued and unpaid interest and Liquidated Damages, if any, to the redemption date, with the net cash proceeds of one or more Public Equity Offerings; provided that: o at least 65% of the aggregate principal amount of notes issued under the indenture remains outstanding immediately after the occurrence of such redemption (excluding notes held by Jarden and its Subsidiaries); and o the redemption occurs within 45 days of the date of the closing of such Public Equity Offering. Except pursuant to the preceding paragraph, the notes will not be redeemable at Jarden's option prior to May 1, 2007. After May 1, 2007, Jarden may redeem all or a part of the notes upon not less than 30 nor more than 60 days' notice, at the redemption prices (expressed as percentages of principal amount) set forth below plus accrued and unpaid interest and Liquidated Damages, if any, on the notes redeemed, to the applicable redemption date, if redeemed during the twelve-month period beginning on May 1 of the years indicated below: YEAR PERCENTAGE ---- ---------- 2007.......................................... 104.875% 2008.......................................... 103.250% 2009.......................................... 101.625% 2010 and thereafter........................... 100.000% MANDATORY REDEMPTION Jarden is not required to make any mandatory redemption or sinking fund payments with respect to the new notes. REPURCHASE AT THE OPTION OF HOLDERS Change of Control If a Change of Control occurs, each Holder of notes will have the right to require Jarden to repurchase all or any part (equal to $1,000 or an integral multiple of $1,000) of that Holder's notes pursuant to a Change of Control Offer on the terms set forth in the indenture. In the Change of Control Offer, Jarden will offer a Change of Control Payment in cash equal to 101% of the aggregate principal amount of notes repurchased plus accrued and unpaid interest and Liquidated Damages, if any, on the notes repurchased, to the date of purchase. Within ten days following any Change of Control, Jarden will mail a notice to each Holder describing the transaction or transactions that constitute the Change of Control and offering to repurchase notes 60 on the Change of Control Payment Date specified in the notice, which date will be no earlier than 30 days and no later than 60 days from the date such notice is mailed, pursuant to the procedures required by the indenture and described in such notice. Jarden will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the notes as a result of a Change of Control. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of the indenture, Jarden will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Change of Control provisions of the indenture by virtue of such conflict. On the Change of Control Payment Date, Jarden will, to the extent lawful: o accept for payment all notes or portions of notes properly tendered pursuant to the Change of Control Offer; o deposit with the paying agent an amount equal to the Change of Control Payment in respect of all notes or portions of notes properly tendered; and o deliver or cause to be delivered to the trustee the notes properly accepted together with an officers' certificate stating the aggregate principal amount of notes or portions of notes being purchased by Jarden. The paying agent will promptly mail to each Holder of notes properly tendered the Change of Control Payment for such notes, and the trustee will promptly authenticate and mail (or cause to be transferred by book entry) to each Holder a new note equal in principal amount to any unpurchased portion of the notes surrendered, if any; provided that each new note will be in a principal amount of $1,000 or an integral multiple of $1,000. If a Change of Control Offer is made, there can be no assurance that Jarden will have available funds sufficient to pay the purchase price for all of the notes that might be tendered by Holders seeking to accept the Change of Control Offer. The failure of Jarden to make or consummate the Change of Control Offer or pay the applicable Change of Control purchase price when due would result in an Event of Default and would give the trustee and the Holders the rights described under "--Events of Default and Remedies." Jarden's new credit agreement will provide that certain change of control events with respect to Jarden will constitute a default thereunder and will prohibit Jarden from consummating a Change of Control Offer. Any future credit agreements or other agreements relating to Senior Debt to which Jarden becomes a party may contain similar provisions. If a Change of Control occurs, Jarden could seek a waiver of any resulting default and, if required, the consent of its lenders to the purchase of notes or could attempt to refinance the borrowings that contains such prohibition. If Jarden is not successful in obtaining a waiver of any change of control default and the consent of the lenders or in refinancing such borrowings, such Senior Debt will be in default, and Jarden will remain prohibited from purchasing notes. In such case, Jarden's failure to purchase tendered notes would constitute an Event of Default under the indenture, which would, in turn, also constitute a default under the new credit agreement. In such circumstances, the subordination provisions in the indenture would likely restrict payments to the 61 Holders. Prior to mailing the notice referred to above, but in any event within 70 days following a Change of Control, Jarden will either repay all outstanding Senior Debt or obtain the requisite waivers and consents, if any, under all agreements governing outstanding Senior Debt to permit the repurchase of notes required by this covenant. Jarden will publicly announce the results of the Change of Control Offer on or as soon as practicable after the Change of Control Payment Date. The provisions described above that require Jarden to make a Change of Control Offer following a Change of Control will be applicable whether or not any other provisions of the indenture are applicable. Except as described above with respect to a Change of Control, the indenture does not contain provisions that permit the Holders of the notes to require that Jarden repurchase or redeem the notes in the event of a takeover, recapitalization or similar transaction. Jarden will not be required to make a Change of Control Offer upon a Change of Control if a third party makes the Change of Control Offer in the manner, at the times and otherwise in compliance with the requirements set forth in the indenture applicable to a Change of Control Offer made by Jarden and purchases all notes properly tendered and not withdrawn under the Change of Control Offer. The definition of Change of Control includes a phrase relating to the direct or indirect sale, lease, transfer, conveyance or other disposition of "all or substantially all" of the properties or assets of Jarden and its Subsidiaries taken as a whole. Although there is a limited body of case law interpreting the phrase "substantially all," there is no precise established definition of the phrase under applicable law. Accordingly, the ability of a Holder of notes to require Jarden to repurchase its notes as a result of a sale, lease, transfer, conveyance or other disposition of less than all of the assets of Jarden and its Subsidiaries taken as a whole to another Person or group may be uncertain. Asset Sales Jarden will not, and will not permit any of its Restricted Subsidiaries to, consummate an Asset Sale unless: o Jarden or the Restricted Subsidiary receives consideration at the time of the Asset Sale at least equal to the fair market value of the assets or Equity Interests issued or sold or otherwise disposed of; o the fair market value is determined by Jarden's Board of Directors and evidenced by a resolution of the Board of Directors set forth in an officers' certificate delivered to the trustee; and o at least 75% of the consideration received in the Asset Sale by Jarden or such Restricted Subsidiary is in the form of cash. For purposes of this provision, each of the following will be deemed to be cash: o any liabilities, as shown on Jarden's most recent consolidated balance sheet, of 62 Jarden or any Restricted Subsidiary (other than contingent liabilities and liabilities that are by their terms subordinated to the notes or any Subsidiary Guarantee) that are assumed by the transferee of any such assets pursuant to a customary novation agreement that releases Jarden or such Restricted Subsidiary from further liability; o any securities, notes or other obligations received by Jarden or any such Restricted Subsidiary from such transferee that within 30 days are converted by Jarden or such Restricted Subsidiary into cash, to the extent of the cash received in that conversion; and o long-term assets that are used or useful in a Permitted Business. Within 360 days after the receipt of any Net Proceeds from an Asset Sale, Jarden may apply those Net Proceeds at its option: o to repay Senior Debt and, if the Senior Debt repaid is revolving credit Indebtedness, to correspondingly reduce commitments with respect thereto to the extent required by such revolving credit Indebtedness; o to acquire all or substantially all of the assets of, or a majority of the Voting Stock of, another Permitted Business; o to make a capital expenditure; or o to acquire other long-term assets that are used or useful in a Permitted Business. Pending the final application of any Net Proceeds, Jarden may temporarily reduce revolving credit borrowings or otherwise invest the Net Proceeds in any manner that is not prohibited by the indenture. Any Net Proceeds from Asset Sales that are not applied or invested as provided in the preceding paragraph will constitute "Excess Proceeds." Within 30 days after the aggregate amount of Excess Proceeds exceeds $5.0 million, Jarden will make an Asset Sale Offer to all Holders of notes and all holders of other Indebtedness that is pari passu with the notes containing provisions similar to those set forth in the indenture with respect to offers to purchase or redeem with the proceeds of sales of assets to purchase the maximum principal amount of notes and such other pari passu Indebtedness that may be purchased out of the Excess Proceeds. The offer price in any Asset Sale Offer will be equal to 100% of principal amount plus accrued and unpaid interest and Liquidated Damages, if any, to the date of purchase, and will be payable in cash. If any Excess Proceeds remain after consummation of an Asset Sale Offer, Jarden may use those Excess Proceeds for any purpose not otherwise prohibited by the indenture. If the aggregate principal amount of notes and other pari passu Indebtedness tendered into such Asset Sale Offer exceeds the amount of Excess Proceeds, the trustee will select the notes and such other pari passu Indebtedness to be purchased on a pro rata basis based upon the aggregate principal amount of each that was properly tendered. Upon completion of each Asset Sale Offer, the amount of Excess Proceeds will be reset at zero. Jarden's new credit agreement will require the consent of the lenders to most asset sales 63 and will prohibit the retirement of the notes and other indebtedness that ranks junior to such Senior Debt. Any future credit agreements or other agreements relating to Senior Debt to which Jarden becomes a party may contain similar provisions or may require prepayment of such Senior Debt with all or a portion of the proceeds of such asset sales. In such case, it is likely that Jarden would apply the net proceeds to retire Senior Debt or, to the extent permitted under such agreements, acquire assets for use in a Permitted Business. Jarden will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and regulations thereunder to the extent those laws and regulations are applicable in connection with each repurchase of notes pursuant to an Asset Sale Offer. To the extent that the provisions of any securities laws or regulations conflict with the Asset Sale provisions of the indenture, Jarden will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the Asset Sale provisions of the indenture by virtue of such conflict. SELECTION AND NOTICE If less than all of the notes are to be redeemed at any time, the trustee will select notes for redemption as follows: o if the notes are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange on which the notes are listed; or o if the notes are not listed on any national securities exchange, on a pro rata basis, by lot or by such method as the trustee deems fair and appropriate. In the event of a redemption pursuant to the provisions described above under "--Optional Redemption," notices of redemption will be mailed by first class mail at least 30 but not more than 60 days before the redemption date to each Holder of notes to be redeemed at its registered address, except that redemption notices may be mailed more than 60 days prior to a redemption date if the notice is issued in connection with a defeasance of the notes or a satisfaction and discharge of the indenture. Notices of redemption may not be conditional. If any note is to be redeemed in part only, the notice of redemption that relates to that note will state the portion of the principal amount of that note that is to be redeemed. A new note in principal amount equal to the unredeemed portion of the original note will be issued in the name of the Holder of notes upon cancellation of the original note. No notes can be redeemed in part if less than $1,000 would remain outstanding. Notes called for redemption become due on the date fixed for redemption. On and after the redemption date, interest ceases to accrue on notes or portions of them called for redemption. CERTAIN COVENANTS Restricted Payments Jarden will not, and will not permit any of its Restricted Subsidiaries to, directly or 64 indirectly: (1) declare or pay any dividend or make any other payment or distribution on account of Jarden's or any of its Restricted Subsidiaries' Equity Interests (including, without limitation, any payment in connection with any merger or consolidation involving Jarden or any of its Restricted Subsidiaries) or to the direct or indirect holders of Jarden's or any of its Restricted Subsidiaries' Equity Interests in their capacity as such (other than dividends or distributions payable in Equity Interests (other than Disqualified Stock) of Jarden or to Jarden or a Restricted Subsidiary of Jarden); (2) purchase, redeem or otherwise acquire or retire for value (including, without limitation, in connection with any merger or consolidation involving Jarden) any Equity Interests of Jarden; (3) make any payment on or with respect to, or purchase, redeem, defease or otherwise acquire or retire for value any Indebtedness that is subordinated to the notes or the Subsidiary Guarantees, except a payment of interest (including any amount comparable to Liquidated Damages) or principal at the Stated Maturity thereof; or (4) make any Restricted Investment (all such payments and other actions set forth in these clauses (1) through (4) above being collectively referred to as "Restricted Payments"), unless, at the time of and after giving effect to such Restricted Payment: (1) no Default or Event of Default has occurred and is continuing or would occur as a consequence of such Restricted Payment; and (2) Jarden would, at the time of such Restricted Payment and after giving pro forma effect thereto as if such Restricted Payment had been made at the beginning of the applicable four-quarter period, have been permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of the covenant described below under the caption "--Incurrence of Indebtedness and Issuance of Preferred Stock"; and (3) such Restricted Payment, together with the aggregate amount of all other Restricted Payments made by Jarden and its Restricted Subsidiaries after the date of the indenture (excluding Restricted Payments permitted by clauses (2), (3), (4) and (5) of the next succeeding paragraph), is less than the sum, without duplication, of: (a) 50% of the Consolidated Net Income of Jarden for the period (taken as one accounting period) from the beginning of the first fiscal quarter commencing after the date of the indenture to the end of Jarden's most recently ended fiscal quarter for which internal financial statements are available at the time of such Restricted Payment (or, if such Consolidated Net Income for such period is a deficit, less 100% of such deficit), plus (b) 100% of the aggregate net cash proceeds received by Jarden since the date of the 65 indenture as a contribution to its common equity capital or from the issue or sale of Equity Interests of Jarden (other than Disqualified Stock) or from the issue or sale of convertible or exchangeable Disqualified Stock or convertible or exchangeable debt securities of Jarden that have been converted into or exchanged for such Equity Interests (other than Equity Interests (or Disqualified Stock or debt securities) sold to a Subsidiary of Jarden), plus (c) with respect to Restricted Investments made by Jarden and its Restricted Subsidiaries after the date of the indenture, an amount equal to the net reduction in such Restricted Investments resulting from payments of interest on Indebtedness, dividends, repayments of loans or advances or other transfers of assets, in each case to Jarden or any such Restricted Subsidiary from any such Investment, or from the net cash proceeds from the sale of any such Investment, or from a redesignation of an Unrestricted Subsidiary to a Restricted Subsidiary, but only if and to the extent such amounts are not included in the calculation of Consolidated Net Income and not to exceed the amount of the Restricted Investment previously made by Jarden or any Restricted Subsidiary in such Person or Unrestricted Subsidiary; provided that any amounts in excess of the amount of the Restricted Investment previously made may be included in the calculation of Consolidated Net Income otherwise available under clause (a), plus; (d) $5.0 million. So long as no Default has occurred and is continuing or would be caused thereby, the preceding provisions will not prohibit: (1) the payment of any dividend within 60 days after the date of declaration of the dividend, if at the date of declaration the dividend payment would have complied with the provisions of the indenture; (2) the redemption, repurchase, retirement, defeasance or other acquisition of any subordinated Indebtedness of Jarden or any Guarantor or of any Equity Interests of Jarden in exchange for, or out of the net cash proceeds of the substantially concurrent sale (other than to a Restricted Subsidiary of Jarden) of, Equity Interests of Jarden (other than Disqualified Stock); provided that the amount of any such net cash proceeds that are utilized for any such redemption, repurchase, retirement, defeasance or other acquisition will be excluded from clause (3)(b) of the preceding paragraph; (3) the defeasance, redemption, repurchase or other acquisition of subordinated Indebtedness of Jarden or any Guarantor in exchange for, or out of the net cash proceeds received from, the substantially concurrent sale of Permitted Refinancing Indebtedness; (4) the payment of any dividend by a Restricted Subsidiary of Jarden to the holders of its Equity Interests on a pro rata basis and the redemption, purchase, cancellation or other retirement of Equity Interests in a Restricted Subsidiary held by any Person other than Jarden or a Subsidiary of Jarden; (5) the repurchase, redemption or other acquisition or retirement for value of any Equity Interests of Jarden or any Restricted Subsidiary of Jarden held by any member of Jarden's (or 66 any of its Restricted Subsidiaries') management pursuant to any management equity subscription agreement, stock option agreement or similar agreement; provided that the aggregate price paid for all such repurchased, redeemed, acquired or retired Equity Interests may not exceed $1.0 million in any twelve-month period and $5.0 million in the aggregate; and (6) prepayments on the subordinated seller note due 2004 in accordance with its terms as in effect on the date of the indenture. The amount of all Restricted Payments (other than cash) will be the fair market value on the date of the Restricted Payment of the asset(s) or securities proposed to be transferred or issued by Jarden or such Subsidiary, as the case may be, pursuant to the Restricted Payment. The fair market value of any assets or securities that are required to be valued by this covenant will be determined by the Board of Directors whose resolution with respect thereto will be delivered to the trustee. The Board of Directors' determination must be based upon an opinion or appraisal issued by an accounting, appraisal or investment banking firm of national standing if the fair market value exceeds $1.0 million. Not later than the date of making any Restricted Payment, Jarden will deliver to the trustee an officers' certificate stating that such Restricted Payment is permitted and setting forth the basis upon which the calculations required by this "Restricted Payments" covenant were computed, together with a copy of any fairness opinion or appraisal required by the indenture. Incurrence Of Indebtedness And Issuance Of Preferred Stock Jarden will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, issue, assume, guarantee or otherwise become directly or indirectly liable, contingently or otherwise, with respect to (collectively, "incur") any Indebtedness (including Acquired Debt), and Jarden will not permit any of its Restricted Subsidiaries to issue any shares of preferred stock; provided, however, that Jarden may incur Indebtedness (including Acquired Debt), and Jarden's Restricted Subsidiaries may incur Indebtedness or issue preferred stock, if the Fixed Charge Coverage Ratio for Jarden's most recently ended four full fiscal quarters for which internal financial statements are available immediately preceding the date on which such additional Indebtedness is incurred or such preferred stock is issued would have been at least 2.0 to 1, determined on a pro forma basis (including a pro forma application of the net proceeds therefrom), as if the additional Indebtedness had been incurred or the preferred stock had been issued, as the case may be, at the beginning of such four-quarter period. The first paragraph of this covenant will not prohibit the incurrence of any of the following items of Indebtedness (collectively, "Permitted Debt"): (1) the incurrence by Jarden and any of its Restricted Subsidiaries of Indebtedness and letters of credit under the New Senior Credit Facility in an aggregate principal amount at any one time outstanding under this clause (1) (with letters of credit being deemed to have a principal amount equal to the maximum potential liability of Jarden and its Restricted Subsidiaries thereunder) not to exceed $100.0 million less the aggregate amount of all commitment reductions with respect to any revolving credit borrowings that have been made by Jarden or any of its Restricted Subsidiaries since the date of the indenture; 67 (2) the incurrence by Jarden and its Restricted Subsidiaries of Existing Indebtedness; (3) the incurrence by Jarden and the Guarantors of Indebtedness represented by the notes and the related Subsidiary Guarantees to be issued on the date of the indenture and the exchange notes and the related Subsidiary Guarantees to be issued pursuant to the registration rights agreement; (4) the incurrence by Jarden or any of its Restricted Subsidiaries of Indebtedness of Tilia assumed as part of the Acquisition; provided that such Indebtedness was not incurred in connection with or in contemplation of the Acquisition; (5) the incurrence by Jarden or any of its Restricted Subsidiaries of Indebtedness in an amount not to exceed $15.0 million pursuant to promissory notes issued to the shareholders of Tilia in payment of a portion of the consideration for the Acquisition; provided that such Indebtedness is subordinated to the notes to at least the same extent as the notes are subordinated to Senior Debt; (6) the incurrence by Jarden or any of its Restricted Subsidiaries of Indebtedness represented by Capital Lease Obligations, mortgage financings or purchase money obligations, in each case, incurred for the purpose of financing all or any part of the purchase price or cost of construction or improvement of property, plant or equipment used in the business of Jarden or such Restricted Subsidiary, in an aggregate principal amount, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (6), not to exceed $10.0 million at any time outstanding; (7) the incurrence by Jarden or any of its Restricted Subsidiaries of Permitted Refinancing Indebtedness in exchange for, or the net proceeds of which are used to refund, refinance or replace Indebtedness (other than intercompany Indebtedness) that was permitted by the indenture to be incurred under the first paragraph of this covenant or clauses (2), (3), (4), (5), (6), (7) or (12) of this paragraph; (8) the incurrence by Jarden or any of its Restricted Subsidiaries of intercompany Indebtedness between or among Jarden and any of its Subsidiaries; provided, however, that: (a) if Jarden or any Guarantor is the obligor on such Indebtedness, such Indebtedness must be expressly subordinated to the prior payment in full in cash of all Obligations with respect to the notes, in the case of Jarden, or the Subsidiary Guarantee, in the case of a Guarantor; and (b) (i) any subsequent issuance or transfer of Equity Interests that results in any such Indebtedness being held by a Person other than Jarden or a Restricted Subsidiary of Jarden and (ii) any sale or other transfer of any such Indebtedness to a Person that is not either Jarden or a Restricted Subsidiary of Jarden; will be deemed, in each case, to constitute an incurrence of such Indebtedness by Jarden or such Restricted Subsidiary, as the case may be, that was not permitted by this clause (8); (9) the incurrence by Jarden or any of its Restricted Subsidiaries of Hedging Obligations 68 that are incurred for the purpose of fixing, swapping or hedging interest rate risk with respect to any Indebtedness that is permitted by the terms of the indenture to be outstanding; (10) the guarantee by Jarden or any of its Restricted Subsidiaries of Indebtedness of Jarden or a Restricted Subsidiary of Jarden that was permitted to be incurred by another provision of this covenant; (11) the accrual of interest, the accretion or amortization of original issue discount, the payment of interest on any Indebtedness in the form of additional Indebtedness with the same terms, and the payment of dividends on Disqualified Stock in the form of additional shares of the same class of Disqualified Stock will not be deemed to be an incurrence of Indebtedness or an issuance of Disqualified Stock for purposes of this covenant; provided, in each such case, that the amount thereof is included in Fixed Charges of Jarden as accrued; and (12) the incurrence by Jarden or any of its Restricted Subsidiaries of additional Indebtedness in an aggregate principal amount (or accreted value, as applicable) at any time outstanding, including all Permitted Refinancing Indebtedness incurred to refund, refinance or replace any Indebtedness incurred pursuant to this clause (12), not to exceed $25.0 million. For purposes of determining compliance with this "Incurrence of Indebtedness and Issuance of Preferred Stock" covenant, in the event that an item of proposed Indebtedness meets the criteria of more than one of the categories of Permitted Debt described in clauses (1) through (12) above, or is entitled to be incurred pursuant to the first paragraph of this covenant, Jarden will be permitted to classify such item of Indebtedness on the date of its incurrence, or later reclassify all or a portion of such item of Indebtedness, in any manner that complies with this covenant. Indebtedness under the New Senior Credit Facility outstanding on the date on which notes are first issued and authenticated under the indenture will be deemed to have been incurred on such date in reliance on the exception provided by clause (1) of the definition of Permitted Debt. No Layering of Debt Jarden will not incur, create, issue, assume, guarantee or otherwise become liable for any Indebtedness that is subordinate or junior in right of payment to any Senior Debt of Jarden and senior in any respect in right of payment to the notes. No Guarantor will incur, create, issue, assume, guarantee or otherwise become liable for any Indebtedness that is subordinate or junior in right of payment to the Senior Debt of such Guarantor and senior in any respect in right of payment to such Guarantor's Subsidiary Guarantee. Liens Jarden will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, create, incur, assume or suffer to exist any Lien of any kind securing Indebtedness for money borrowed on any asset now owned or hereafter acquired, except Permitted Liens. Dividend and Other Payment Restrictions Affecting Subsidiaries Jarden will not, and will not permit any of its Restricted Subsidiaries to, directly or 69 indirectly, create or permit to exist or become effective any consensual encumbrance or restriction on the ability of any Restricted Subsidiary to: (1) pay dividends or make any other distributions on its Capital Stock to Jarden or any of its Restricted Subsidiaries, or with respect to any other interest or participation in, or measured by, its profits, or pay any indebtedness owed to Jarden or any of its Restricted Subsidiaries; (2) make loans or advances to Jarden or any of its Restricted Subsidiaries; or (3) transfer any of its properties or assets to Jarden or any of its Restricted Subsidiaries. However, the preceding restrictions will not apply to encumbrances or restrictions existing under or by reason of: (1) agreements governing Existing Indebtedness and the New Senior Credit Facility as in effect on the date of the indenture and any amendments, modifications, restatements, renewals, increases, supplements, refundings, replacements or refinancings of those agreements; provided that the amendments, modifications, restatements, renewals, increases, supplements, refundings, replacement or refinancings are no more restrictive, taken as a whole, with respect to such dividend and other payment restrictions than those contained in those agreements on the date of the indenture; (2) the indenture, the notes and the Subsidiary Guarantees; (3) applicable law; (4) any instrument governing Indebtedness or Capital Stock of a Person acquired by Jarden or any of its Restricted Subsidiaries as in effect at the time of such acquisition (except to the extent such Indebtedness or Capital Stock was incurred in connection with or in contemplation of such acquisition), which encumbrance or restriction is not applicable to any Person, or the properties or assets of any Person, other than the Person, or the property or assets of the Person, so acquired; provided that, in the case of Indebtedness, such Indebtedness was permitted by the terms of the indenture to be incurred; (5) customary non-assignment provisions in leases, licenses and other agreements entered into in the ordinary course of business and consistent with past practices; (6) purchase money obligations for property acquired in the ordinary course of business that impose restrictions on that property of the nature described in clause (3) of the preceding paragraph; (7) any agreement for the sale or other disposition of a Restricted Subsidiary that restricts distributions by that Restricted Subsidiary pending its sale or other disposition; (8) Permitted Refinancing Indebtedness; provided that the restrictions contained in the agreements governing such Permitted Refinancing Indebtedness are no more restrictive, taken as a whole, than those contained in the agreements governing the Indebtedness being 70 refinanced; (9) Liens securing Indebtedness otherwise permitted to be incurred under the provisions of the covenant described above under the caption "--Liens" that limit the right of the debtor to dispose of the assets subject to such liens; (10) provisions with respect to the disposition or distribution of assets or property in joint venture agreements, asset sale agreements, stock sale agreements and other similar agreements entered into in the ordinary course of business; and (11) restrictions on cash or other deposits or net worth imposed by customers under contracts entered into in the ordinary course of business. Merger, Consolidation or Sale of Assets Jarden may not, directly or indirectly: (1) consolidate or merge with or into another Person (whether or not Jarden is the surviving corporation); or (2) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of Jarden and its Subsidiaries taken as a whole, in one or more related transactions, to another Person; unless: (1) either: (a) Jarden is the surviving corporation; or (b) the Person formed by or surviving any such consolidation or merger (if other than Jarden) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a corporation organized or existing under the laws of the United States, any state of the United States or the District of Columbia; (2) the Person formed by or surviving any such consolidation or merger (if other than Jarden) or the Person to which such sale, assignment, transfer, conveyance or other disposition has been made assumes all the obligations of Jarden under the notes, the indenture and the registration rights agreement pursuant to agreements reasonably satisfactory to the trustee; (3) immediately after such transaction, no Default or Event of Default exists; and (4) Jarden or the Person formed by or surviving any such consolidation or merger (if other than Jarden), or to which such sale, assignment, transfer, conveyance or other disposition has been made will, on the date of such transaction after giving pro forma effect thereto and any related financing transactions as if the same had occurred at the beginning of the applicable four-quarter period, be permitted to incur at least $1.00 of additional Indebtedness pursuant to the Fixed Charge Coverage Ratio test set forth in the first paragraph of the covenant described above under the caption "--Incurrence of Indebtedness and Issuance of Preferred Stock." In addition, Jarden may not, directly or indirectly, lease all or substantially all of its properties or assets, in one or more related transactions, to any other Person. This "Merger, Consolidation or Sale of Assets" covenant will not apply to a sale, assignment, transfer, conveyance or other disposition of assets between or among Jarden and any of its Restricted Subsidiaries that are Guarantors. 71 Transactions With Affiliates Jarden will not, and will not permit any of its Restricted Subsidiaries to, make any payment to, or sell, lease, transfer or otherwise dispose of any of its properties or assets to, or purchase any property or assets from, or enter into or make or amend any transaction, contract, agreement, understanding, loan, advance or guarantee with, or for the benefit of, any Affiliate (each, an "Affiliate Transaction"), unless: (1) the Affiliate Transaction is on terms that are no less favorable to Jarden or the relevant Restricted Subsidiary than those that would have been obtained in a comparable transaction by Jarden or such Restricted Subsidiary with an unrelated Person; and (2) Jarden delivers to the trustee: (a) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $1.0 million, a resolution of the Board of Directors set forth in an officers' certificate certifying that such Affiliate Transaction complies with this covenant and that such Affiliate Transaction has been approved by a majority of the disinterested members of the Board of Directors; and (b) with respect to any Affiliate Transaction or series of related Affiliate Transactions involving aggregate consideration in excess of $10.0 million, an opinion as to the fairness to Jarden of such Affiliate Transaction from a financial point of view issued by an accounting, appraisal or investment banking firm of national standing. The following items will not be deemed to be Affiliate Transactions and, therefore, will not be subject to the provisions of the prior paragraph: (1) any employment or consulting agreement entered into by Jarden or any of its Restricted Subsidiaries in the ordinary course of business and consistent with the past practice of Jarden or such Restricted Subsidiary; (2) transactions between or among Jarden and/or its Restricted Subsidiaries; (3) transactions with a Person that is an Affiliate of Jarden solely because Jarden owns an Equity Interest in, or controls, such Person; (4) payment of reasonable fees and compensation to, and indemnity provided on behalf of, directors and officers of Jarden; (5) sales of Equity Interests (other than Disqualified Stock) to Affiliates of Jarden; (6) Restricted Payments that are permitted by the provisions of the indenture described above under the caption "--Restricted Payments"; (7) transfers of accounts receivable and related assets to a Receivables Subsidiary in connection with a Qualified Receivables Transaction and the charging of fees and expenses in 72 the ordinary course of business in connection with such transfers; and (8) Permitted Investments. Business Activities Jarden will not, and will not permit any of its Restricted Subsidiaries to, engage in any business activities other than in a Permitted Business. Additional Subsidiary Guarantees If Jarden or any of its Subsidiaries acquires or creates a Domestic Subsidiary after the date of the indenture, then that newly acquired or created Domestic Subsidiary will become a Guarantor and execute a Subsidiary Guarantee and deliver an opinion of counsel satisfactory to the trustee within 30 days of the date on which it was acquired or created. Designation of Restricted and Unrestricted Subsidiaries The Board of Directors may designate any Restricted Subsidiary to be an Unrestricted Subsidiary if that designation would not cause a Default. If a Restricted Subsidiary is designated as an Unrestricted Subsidiary, the aggregate fair market value of all outstanding Investments owned by Jarden and its Restricted Subsidiaries in the Subsidiary to be designated will be deemed to be an Investment made as of the time of the designation and will reduce the amount available for Restricted Payments under the first paragraph of the covenant described above under the caption "--Restricted Payments" or Permitted Investments, as determined by Jarden. That designation will only be permitted if the Investment would be permitted at that time and if the Restricted Subsidiary otherwise meets the definition of an Unrestricted Subsidiary. Upon its designation as an Unrestricted Subsidiary, it will cease to be a Guarantor and its Subsidiary Guarantee will be released. The Board of Directors may redesignate any Unrestricted Subsidiary to be a Restricted Subsidiary if the redesignation would not cause a Default. If an Unrestricted Subsidiary is redesignated as a Restricted Subsidiary, an amount equal to the lesser of the aggregate fair market value of all outstanding Investments owned by Jarden and its Restricted Subsidiaries in the Subsidiary to be redesignated and the amount of all such Investments will be deemed to be recovered in cash as of the time of the redesignation and will increase the amounts available for (1) Restricted Payments under the first paragraph of the covenant described above under the caption "--Restricted Payments" and (2) Permitted Investments in proportion to the amount of Jarden's and its Restricted Subsidiaries' Investments in such Subsidiary that were Restricted Payments and Permitted Investments. Upon any such redesignation or other designation as a Restricted Subsidiary, such Subsidiary will become a Guarantor and execute a Subsidiary Guarantee. Payments For Consent Jarden will not, and will not permit any of its Restricted Subsidiaries to, directly or indirectly, pay or cause to be paid any consideration to or for the benefit of any Holder of notes for or as an inducement to any consent, waiver or amendment of any of the terms or provisions 73 of the indenture or the notes unless such consideration is offered to be paid and is paid to all Holders of the notes that consent, waive or agree to amend in the time frame set forth in the solicitation documents relating to such consent, waiver or agreement. Reports Whether or not required by the Commission, so long as any notes are outstanding, Jarden will furnish to the Holders of notes, within the time periods specified in the Commission's rules and regulations (together with any extensions granted by the Commission): (1) all quarterly and annual financial information that would be required to be contained in a filing with the Commission on Forms 10-Q and 10-K if Jarden were required to file such Forms, including a "Management's Discussion and Analysis of Financial Condition and Results of Operations" and, with respect to the annual information only, a report on the annual financial statements by Jarden's certified independent accountants; and (2) all current reports that would be required to be filed with the Commission on Form 8-K if Jarden were required to file such reports. If Jarden has designated any of its Subsidiaries as Unrestricted Subsidiaries, then the quarterly and annual financial information required by the preceding paragraph will include a reasonably detailed presentation, either on the face of the financial statements or in the footnotes thereto, and in Management's Discussion and Analysis of Financial Condition and Results of Operations, of the financial condition and results of operations of Jarden and its Restricted Subsidiaries separate from the financial condition and results of operations of the Unrestricted Subsidiaries of Jarden. In addition, following the consummation of the exchange offer contemplated by the registration rights agreement, whether or not required by the Commission, Jarden will file a copy of all of the information and reports referred to in clauses (1) and (2) above with the Commission for public availability (unless the Commission will not accept such a filing) within the time periods specified in the Commission's rules and regulations (together with any extensions granted by the Commission) and make such information available to securities analysts and prospective investors upon request. In addition, Jarden and the Guarantors have agreed that, for so long as any notes (other than new notes) remain outstanding, they will furnish to the Holders and to securities analysts and prospective investors, upon their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act. Amendment Of Subordinated Seller Notes Without the consent of the Holders of at least a majority in principal amount of notes then outstanding, Jarden will not agree to amend or modify the subordinated seller notes in any manner that would result in the subordinated seller notes not being subordinated to the notes to at least the same extent as the notes are subordinated to Senior Debt, or that would accelerate any payment of the subordinated seller notes or increase the interest rate on the subordinated seller notes. EVENTS OF DEFAULT AND REMEDIES 74 Each of the following is an Event of Default: (1) default for 30 days in the payment when due of interest on, or Liquidated Damages with respect to, the notes, whether or not prohibited by the subordination provisions of the indenture; (2) default in payment when due of the principal of, or premium, if any, on the notes, whether or not prohibited by the subordination provisions of the indenture; (3) failure by Jarden or any of its Subsidiaries to comply with the provisions described under the captions "--Repurchase at the Option of Holders--Change of Control," "--Repurchase at the Option of Holders-- Asset Sales" (other than the requirement that the resolution of the Board of Directors pursuant to clause (2) of the first paragraph of such provision be set forth in an officers' certificate delivered to the trustee, with respect to which the Event of Default described in clause (5) of the paragraph will apply), or "--Certain Covenants--Merger, Consolidation or Sale of Assets"; (4) failure by Jarden or any of its Subsidiaries to comply with the provisions described under the captions "--Certain Covenants--Restricted Payments" or "--Certain Covenants--Incurrence of Indebtedness and Issuance of Preferred Stock," and such failure continues for 30 days; (5) failure by Jarden or any of its Subsidiaries for 60 days after notice by the trustee or Holders of at least 25% in principal amount of the then outstanding notes to comply with any of the other agreements in the indenture; (6) default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any Indebtedness for money borrowed by Jarden or any of its Restricted Subsidiaries (or the payment of which is guaranteed by Jarden or any of its Restricted Subsidiaries) whether such Indebtedness or guarantee now exists, or is created after the date of the indenture, if that default: (a) is caused by a failure to pay principal of, or interest or premium, if any, on such Indebtedness prior to the expiration of the grace period provided in such Indebtedness on the date of such default (a "Payment Default"); or (b) results in the acceleration of such Indebtedness prior to its express maturity, and, in each case, the principal amount of any such Indebtedness, together with the principal amount of any other such Indebtedness under which there has been a Payment Default or the maturity of which has been so accelerated, aggregates $10.0 million or more; (7) failure by Jarden or any of its Restricted Subsidiaries to pay final judgments aggregating in excess of $10.0 million (to the extent not insured), which judgments are not paid, discharged or stayed for a period of 60 days; (8) except as permitted by the indenture, any Subsidiary Guarantee shall be held in any 75 judicial proceeding to be unenforceable or invalid or shall cease for any reason to be in full force and effect or any Guarantor, or any Person acting on behalf of any Guarantor, shall deny or disaffirm its obligations under its Subsidiary Guarantee; and (9) certain events of bankruptcy or insolvency described in the indenture with respect to Jarden, any Restricted Subsidiary that is a Significant Subsidiary or any group of Restricted Subsidiaries that, taken together, would constitute a Significant Subsidiary. In the case of an Event of Default arising from an event of bankruptcy or insolvency described in clause (9) above, all outstanding notes will become due and payable immediately without further action or notice. If any other Event of Default occurs and is continuing, the trustee or the Holders of at least 25% in principal amount of the then outstanding notes may declare all the notes to be due and payable immediately. Holders of the notes may not enforce the indenture or the notes except as provided in the indenture. Subject to certain limitations, Holders of a majority in principal amount of the then outstanding notes may direct the trustee in its exercise of any trust or power. The trustee may withhold from Holders of the notes notice of any continuing Default or Event of Default if it determines that withholding notice is in their interest, except a Default or Event of Default relating to the payment of principal (including redemption or purchase price) or interest or Liquidated Damages. The Holders of a majority in aggregate principal amount of the notes then outstanding by notice to the trustee may on behalf of the Holders of all of the notes waive any existing Default or Event of Default and its consequences under the indenture except a continuing Default or Event of Default in the payment of interest or Liquidated Damages on, or the principal (including redemption or purchase price) of, the notes. In the case of any Event of Default occurring by reason of any willful action or inaction taken or not taken by or on behalf of Jarden with the intention of avoiding payment of the premium that Jarden would have had to pay if Jarden then had elected to redeem the notes pursuant to the optional redemption provisions of the indenture, an equivalent premium will also become and be immediately due and payable to the extent permitted by law upon the acceleration of the notes. If an Event of Default occurs prior to May 1, 2007, by reason of any willful action (or inaction) taken (or not taken) by or on behalf of Jarden with the intention of avoiding the prohibition on redemption of the notes prior to May 1, 2007, then the premium specified in the indenture will also become immediately due and payable to the extent permitted by law upon the acceleration of the notes. At any time after a declaration of acceleration under the indenture, but before a judgment or decree for payment of the money due has been obtained by the trustee, the Holders of a majority in aggregate principal amount of the outstanding notes, by written notice to Jarden and the trustee, may rescind such declaration and its consequences if: (i) Jarden has paid or deposited with the trustee a sum sufficient to pay (A) all overdue interest on all notes, (B) all unpaid principal of (and premium, if any, on) any outstanding notes that has become due, other than by such declaration of acceleration, and interest thereon at the rate borne by the notes, (C) to the extent that payment of such interest is lawful, interest upon overdue interest and overdue principal at the rate borne by the notes, and (D) all sums paid or advanced by the trustee under 76 the indenture and the reasonable compensation, expenses, disbursements and advances of the trustee, its agents and counsel; and (ii) all Events of Default, other than the non-payment of amounts of principal of (or premium, if any, on), or interest on, the notes that have become due solely by such declaration of acceleration, have been cured or waived. No such rescission will affect any subsequent default or impair any right consequent thereon. Jarden is required to deliver to the trustee annually a statement regarding compliance with the indenture. Upon becoming aware of any Default or Event of Default, Jarden is required to deliver to the trustee a statement specifying such Default or Event of Default. NO PERSONAL LIABILITY OF DIRECTORS, OFFICERS, EMPLOYEES AND STOCKHOLDERS No director, officer, employee, incorporator or stockholder of Jarden or any Guarantor, as such, will have any liability for any obligations of Jarden or the Guarantors under the notes, the indenture, the Subsidiary Guarantees, or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of notes by accepting a note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the notes. The waiver may not be effective to waive liabilities under the Federal securities laws. LEGAL DEFEASANCE AND COVENANT DEFEASANCE Jarden may, at its option and at any time, elect to have all of its obligations discharged with respect to the outstanding notes and all obligations of the Guarantors discharged with respect to their Subsidiary Guarantees ("Legal Defeasance") except for: o the rights of Holders of outstanding notes to receive payments in respect of the principal of, or interest or premium and Liquidated Damages, if any, on such notes when such payments are due from the trust referred to below; o Jarden's obligations with respect to the notes concerning issuing temporary notes, registration of notes, mutilated, destroyed, lost or stolen notes and the maintenance of an office or agency for payment and money for security payments held in trust; o the rights, powers, trusts, duties and immunities of the trustee, and Jarden's and the Guarantors' obligations in connection therewith; and o the Legal Defeasance provisions of the indenture. In addition, Jarden may, at its option and at any time, elect to have the obligations of Jarden and the Guarantors released with respect to certain covenants (including its obligation to make Change of Control Offers and Asset Sale Offers) that are described in the indenture ("Covenant Defeasance") and thereafter any omission to comply with those covenants will not constitute a Default or Event of Default with respect to the notes. In the event Covenant Defeasance occurs, certain events (not including non-payment, bankruptcy, receivership, rehabilitation and insolvency events) described under "--Events of Default and Remedies" will no longer constitute an Event of Default with respect to the notes. In order to exercise either Legal Defeasance or Covenant Defeasance: 77 o Jarden must irrevocably deposit with the trustee, in trust, for the benefit of the Holders of the notes, cash in U.S. dollars, non-callable Government Securities, or a combination of cash in U.S. dollars and non-callable Government Securities, in amounts as will be sufficient, in the opinion of a nationally recognized firm of independent public accountants, to pay the principal of, and interest and premium and Liquidated Damages, if any, on the outstanding notes on the stated maturity or on the applicable redemption date, as the case may be, and Jarden must specify whether the notes are being defeased to maturity or to a particular redemption date; o in the case of Legal Defeasance, Jarden has delivered to the trustee an opinion of counsel reasonably acceptable to the trustee confirming that o Jarden has received from, or there has been published by, the Internal Revenue Service a ruling; or o since the date of the indenture, there has been a change in the applicable Federal income tax law, in either case to the effect that, and based thereon such opinion of counsel will confirm that, the Holders of the outstanding notes will not recognize income, gain or loss for Federal income tax purposes as a result of such Legal Defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred; o in the case of Covenant Defeasance, Jarden has delivered to the trustee an opinion of counsel reasonably acceptable to the trustee confirming that the Holders of the outstanding notes will not recognize income, gain or loss for Federal income tax purposes as a result of such Covenant Defeasance and will be subject to Federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such Covenant Defeasance had not occurred; o no Default or Event of Default has occurred and is continuing on the date of such deposit and after giving effect thereto; o such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under any material agreement or instrument (other than the indenture) to which Jarden or any of its Subsidiaries is a party or by which Jarden or any of its Subsidiaries is bound; o Jarden must deliver to the trustee an officers' certificate stating that the deposit was not made by Jarden with the intent of preferring the Holders of notes over the other creditors of Jarden with the intent of defeating, hindering, delaying or defrauding creditors of Jarden or others; and o Jarden must deliver to the trustee an officers' certificate and an opinion of counsel, each stating that all conditions precedent relating to the Legal Defeasance or the Covenant Defeasance have been complied with. 78 AMENDMENT, SUPPLEMENT AND WAIVER Except as provided in the next three succeeding paragraphs, the indenture and the notes may be amended or supplemented with the consent of the Holders of at least a majority in principal amount of the notes then outstanding (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, notes), and any existing default or compliance with any provision of the indenture or the notes may be waived with the consent of the Holders of a majority in principal amount of the then outstanding notes (including, without limitation, consents obtained in connection with a purchase of, or tender offer or exchange offer for, notes). Without the consent of each Holder affected, an amendment or waiver may not (with respect to any notes held by a non-consenting Holder): o reduce the principal amount of notes whose Holders must consent to an amendment, supplement or waiver; o reduce the principal of or change the fixed maturity of any note or alter the provisions with respect to the redemption of the notes (other than provisions relating to the covenants described above under the caption "--Repurchase at the Option of Holders"); o reduce the rate of or change the time for payment of interest on any note; o waive a Default or Event of Default in the payment of principal (including redemption or purchase price) of, or interest or premium, or Liquidated Damages, if any, on the notes (except a rescission of acceleration of the notes by the Holders of at least a majority in aggregate principal amount of the notes and a waiver of the payment default that resulted from such acceleration); o make any note payable in money other than that stated in the notes; o make any change in the provisions of the indenture relating to waivers of past Defaults or the rights of Holders of notes to receive payments of principal of, or interest or premium or Liquidated Damages, if any, on the notes; o waive a redemption payment with respect to any note (other than a payment required by one of the covenants described above under the caption "--Repurchase at the Option of Holders"); o release any Guarantor from any of its obligations under its Subsidiary Guarantee or the indenture, except in accordance with the terms of the indenture; or o make any change in the preceding amendment and waiver provisions. In addition, any amendment to, or waiver of, the provisions of the indenture relating to subordination that adversely affects the rights of the Holders of the notes will require the consent 79 of the Holders of at least 75% in aggregate principal amount of notes then outstanding. Notwithstanding the preceding, without the consent of any Holder of notes, Jarden, the Guarantors and the trustee may amend or supplement the indenture or the notes: o to cure any ambiguity, defect or inconsistency; o to provide for uncertificated notes in addition to or in place of certificated notes; o to provide for the assumption of Jarden's obligations to Holders of notes in the case of a merger or consolidation or sale of all or substantially all of Jarden's assets; o to make any change that would provide any additional rights or benefits to the Holders of notes or that does not adversely affect the legal rights under the indenture of any such Holder; or o to comply with requirements of the Commission in order to effect or maintain the qualification of the indenture under the Trust Indenture Act. SATISFACTION AND DISCHARGE The indenture will be discharged and will cease to be of further effect as to all notes issued thereunder, when: o either: o all notes that have been authenticated, except lost, stolen or destroyed notes that have been replaced or paid and notes for whose payment money has been deposited in trust and thereafter repaid to Jarden, have been delivered to the trustee for cancellation; or o all notes that have not been delivered to the trustee for cancellation have become due and payable by reason of the mailing of a notice of redemption or otherwise or will become due and payable within one year and Jarden or any Guarantor has irrevocably deposited or caused to be deposited with the trustee as trust funds in trust solely for the benefit of the Holders, cash in U.S. dollars, non-callable Government Securities, or a combination of cash in U.S. dollars and non-callable Government Securities, in amounts as will be sufficient without consideration of any reinvestment of interest, to pay and discharge the entire indebtedness on the notes not delivered to the trustee for cancellation for principal, premium and Liquidated Damages, if any, and accrued interest to the date of maturity or redemption; o no Default or Event of Default has occurred and is continuing on the date of the deposit or will occur as a result of the deposit and the deposit will not result in a breach or violation of, or constitute a default under, any other instrument to which Jarden or any Guarantor is a party or by which Jarden or any Guarantor is bound; 80 o Jarden or any Guarantor has paid or caused to be paid all sums payable by it under the indenture; and o Jarden has delivered irrevocable instructions to the trustee under the indenture to apply the deposited money toward the payment of the notes at maturity or the redemption date, as the case may be. In addition, Jarden must deliver an officers' certificate and an opinion of counsel to the trustee stating that all conditions precedent to satisfaction and discharge have been satisfied. CONCERNING THE TRUSTEE If the trustee becomes a creditor of Jarden or any Guarantor, the indenture limits its right to obtain payment of claims in certain cases, or to realize on certain property received in respect of any such claim as security or otherwise. The trustee will be permitted to engage in other transactions; however, if it acquires any conflicting interest it must eliminate such conflict within 90 days, apply to the Commission for permission to continue or resign. The Holders of a majority in principal amount of the then outstanding notes will have the right to direct the time, method and place of conducting any proceeding for exercising any remedy available to the trustee, subject to certain exceptions. The indenture provides that in case an Event of Default occurs and is continuing, the trustee will be required, in the exercise of its power, to use the degree of care of a prudent person in the conduct of his own affairs. Subject to such provisions, the trustee will be under no obligation to exercise any of its rights or powers under the indenture at the request of any Holder of notes, unless such Holder has offered to the trustee security and indemnity satisfactory to it against any loss, liability or expense. BOOK-ENTRY, DELIVERY AND FORM The new notes will be represented by one or more permanent global certificates in definitive, fully registered form without interest coupons (the "Global Notes"). The Global Notes will be deposited upon issuance with the Trustee as custodian for The Depository Trust Company ("DTC"), in New York, New York, and registered in the name of DTC or its nominee for credit to an account of a direct or indirect participant in DTC as described below. Except as set forth below, the Global Notes may be transferred, in whole and not in part, only to another nominee of DTC or to a successor of DTC or its nominee. Beneficial interests in the Global Notes may not be exchanged for new notes in certificated form except in the limited circumstances described below. See "-Exchange of Book-Entry Notes for Certificated Notes". Transfer of beneficial interests in the Global Notes will be subject to the applicable rules and procedures of DTC and its direct or indirect participants (including, if applicable, those of the Euroclear System ("Euroclear") and Clearstream Banking societe anonyme ("Clearstream")), which may change from time to time. DEPOSITORY PROCEDURES 81 DTC is a limited-purpose trust company created to hold securities for its participating organizations (collectively, the "Participants") and to facilitate the clearance and settlement of transactions in those securities between Participants through electronic book-entry changes in accounts of its Participants. The Participants include securities brokers and dealers (including the initial purchasers), banks, trust companies, clearing corporations and certain other organizations. Access to DTC's system is also available to other entities such as banks, brokers, dealers and trust companies that clear through or maintain a custodial relationship with a Participant, either directly or indirectly (collectively, the "Indirect Participants"). Persons who are not Participants may beneficially own securities held by or on behalf of DTC only through the Participants or the Indirect Participants. The ownership interests and transfer of ownership interests of each actual purchaser of each security held by or on behalf of DTC are recorded on the records of the Participants and Indirect Participants. Pursuant to procedures established by DTC: o upon deposit of the Global Notes, DTC will credit the accounts of Participants designated by the initial purchasers with portions of the principal amount of the Global Notes; and o ownership of such interests in the Global Notes will be maintained by DTC (with respect to the Participants) or by the Participants and the Indirect Participants (with respect to other owners of beneficial interests in the Global Notes). Investors in the Global Notes may hold their interests therein directly through DTC, if they are Participants in such system, or indirectly through organizations (including Euroclear and Clearstream) which are Participants in such system. All interests in a Global Note, including those held through Euroclear or Clearstream, will be subject to the procedures and requirements of DTC. Those interests held through Euroclear or Clearstream will also be subject to the procedures and requirements of these systems. The laws of some states require that certain persons take physical delivery in definitive form of securities that they own. Consequently, the ability to transfer beneficial interests in a Global Note to such persons will be limited to that extent. Because DTC can act only on behalf of Participants, which in turn act on behalf of Indirect Participants, the ability of a person having beneficial interests in a Global Note to pledge such interests to persons or entities that do not participate in the DTC system, or otherwise take actions in respect of such interests, may be affected by the lack of a physical certificate evidencing such interests. For certain other restrictions on the transferability of the new notes, see "-Exchange of Book-Entry Notes for Certificated Notes". Except as described below, owners of interests in the Global Notes will not have new notes registered in their names, will not receive physical delivery of new notes in certificated form and will not be considered the registered owners or holders thereof under the indenture for any purpose. Payments in respect of the principal of and premium, if any, and interest on a Global Note registered in the name of DTC or its nominee will be payable by the Trustee to DTC in its capacity as the registered holder under the Indenture. Jarden and the Trustee will treat the 82 persons in whose names the new notes, including the Global Notes, are registered as the owners thereof for the purpose of receiving such payments and for any and all other purposes whatsoever. Consequently, neither Jarden, the Trustee nor any agent of Jarden or the Trustee has or will have any responsibility or liability for: o any aspect of DTC's records or any Participant's or Indirect Participant's records relating to or payment made on account of beneficial ownership interests in the Global Notes, or for maintaining, supervising or reviewing any of DTC's records or any Participant's or Indirect Participant's records relating to the beneficial ownership interests in the Global Notes; or o any other matter relating to the actions and practices of DTC or any of its Participants or Indirect Participants. DTC has advised Jarden that its current practice, upon receipt of any payment in respect of securities such as the new notes (including principal and interest), is to credit the accounts of the relevant Participants with the payment on the payment date, in amounts proportionate to their respective holdings in the principal amount of beneficial interests in the relevant security as shown on the records of DTC unless DTC has reason to believe it will not receive payment on such payment date. Payments by the Participants and the Indirect Participants to the beneficial owners of new notes will be governed by standing instructions and customary practices and will be the responsibility of the Participants or the Indirect Participants and will not be the responsibility of DTC, the Trustee or Jarden. Neither Jarden nor the Trustee will be liable for any delay by DTC or any of its Participants in identifying the beneficial owners of the new notes, and Jarden and the Trustee may conclusively rely on and will be protected in relying on instructions from DTC or its nominee for all purposes. Except for trades involving only Euroclear and Clearstream participants, interests in the Global Notes are expected to be eligible to trade in DTC's Same-Day Funds Settlement System and secondary market trading activity in such interests will therefore settle in immediately available funds, subject in all cases to the rules and procedures of DTC and its Participants. Transfers between Participants in DTC will be effected in accordance with DTC's procedures, and will be settled in same-day funds, and transfers between participants in Euroclear and Clearstream will be affected in the ordinary way in accordance with their respective rules and operating procedures. Cross-market transfers between the Participants in DTC, on the one hand, and Euroclear or Clearstream participants, on the other hand, will be effected through DTC in accordance with DTC 's rules on behalf of Euroclear and Clearstream, as the case may be, by their depositories. Cross-market transactions will require delivery of instructions to Euroclear or Clearstream, as the case may be, by the counterparty in that system in accordance with the rules and procedures and within the established deadlines (Brussels time) of that system. Euroclear or Clearstream, as the case may be, will, if the transaction meets its settlement requirements, deliver instructions to its respective depositories to take action to effect final settlement on its behalf by delivering or receiving interests in the relevant Global Note in DTC, and making or receiving payment in accordance with normal procedures for same-day funds settlement applicable to DTC. Euroclear 83 and Clearstream participants may not deliver instructions directly to the depositories for Euroclear or Clearstream. Because of time zone differences, the securities account of a Euroclear or Clearstream participant purchasing an interest in a Global Note from a Participant in DTC will be credited and reported to the relevant Euroclear or Clearstream participant, during the securities settlement processing day (which must be a business day for Euroclear and Clearstream) immediately following the settlement date of DTC. DTC has advised Jarden that cash received in Euroclear or Clearstream as a result of sales of interests in a Global Note by or through a Euroclear or Clearstream participant to a Participant in DTC will be received with value on the settlement date of DTC but will be available in the relevant Euroclear or Clearstream cash account only as of the business day of Euroclear or Clearstream following DTC's settlement date. DTC has advised Jarden that it will take any action permitted to be taken by a Holder of new notes only at the direction of one or more Participants to whose account with DTC interests in the Global Notes are credited and only in respect of such portion of the aggregate principal amount of the new notes as to which such Participant or Participants has or have given such direction. If there is an Event of Default under the new notes, DTC reserves the right to exchange the Global Notes for legended new notes in certificated form, and to distribute the new notes to its Participants. Although DTC, Euroclear and Clearstream have agreed to the foregoing procedures to facilitate transfers of interests in the Global Notes among participants in DTC, Euroclear and Clearstream, they are under no obligation to perform or to continue to perform such procedures, and the procedures may be discontinued at any time. Neither Jarden nor the Trustee will have any responsibility for the performance by DTC, Euroclear or Clearstream or their respective Participants or Indirect Participants of their respective obligations under the rules and procedures governing their operations. According to DTC, the foregoing information with respect to DTC has been provided for informational purposes only and is not intended to serve as a representation, warranty, or contract modification of any kind. The information in this section concerning DTC, Euroclear and Clearstream and their book-entry systems has been obtained from sources that Jarden believes to be reliable. EXCHANGE OF BOOK-ENTRY NOTES FOR CERTIFICATED NOTES A Global Note is exchangeable for new notes in registered certificated form ("Certificated Notes") if: o DTC (a) notifies Jarden that it is unwilling or unable to continue as depositary for the Global Notes or (b) has ceased to be a clearing agency registered under the Exchange Act and, in either case, Jarden fails to appoint a successor depositary; o Jarden, at its option, notifies the trustee in writing that it elects to cause the issuance of the Certificated Notes; or 84 o there has occurred and is continuing a Default or Event of Default with respect to the notes. In addition, beneficial interests in a Global Note may be exchanged for Certificated Notes upon prior written notice given to the trustee by or on behalf of DTC in accordance with the indenture. In all cases, Certificated Notes delivered in exchange for any Global Note or beneficial interests in Global Notes will be registered in the names, and issued in any approved denominations, requested by or on behalf of the depositary (in accordance with its customary procedures). EXCHANGE OF CERTIFICATED NOTES FOR GLOBAL NOTES Certificated Notes may not be exchanged for beneficial interests in any Global Note unless the transferor first delivers to the trustee a written certificate (in the form provided in the indenture) to the effect that such transfer will comply with the appropriate transfer restrictions, if any, applicable to such notes. CERTAIN DEFINITIONS Set forth below are certain defined terms used in the indenture. Reference is made to the indenture for a full disclosure of all such terms, as well as any other capitalized terms used herein for which no definition is provided. "Acquired Debt" means, with respect to any specified Person: (1) Indebtedness of any other Person existing at the time such other Person is merged with or into or became a Subsidiary of such specified Person, whether or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Subsidiary of, such specified Person; and (2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person. Affiliate" of any specified Person means any other Person directly or indirectly controlling or controlled by or under direct or indirect common control with such specified Person. For purposes of this definition, "control," as used with respect to any Person, means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of such Person, whether through the ownership of voting securities, by agreement or otherwise; provided that beneficial ownership of 10% or more of the Voting Stock of a Person will be deemed to be control. For purposes of this definition, the terms "controlling," "controlled by" and "under common control with" have correlative meanings. "Asset Sale" means: (1) the sale, lease, conveyance or other disposition of any assets or rights, other than sales of inventory and accounts receivable in the ordinary course of business consistent with past practices; provided that the sale, conveyance or other 85 disposition of all or substantially all of the assets of Jarden and its Subsidiaries taken as a whole will be governed by the provisions of the indenture described above under the caption "--Repurchase at the Option of Holders--Change of Control" and/or the provisions described above under the caption "--Certain Covenants--Merger, Consolidation or Sale of Assets" and not by the provisions of the Asset Sale covenant; and (2) the issuance of Equity Interests by any of Jarden's Restricted Subsidiaries or the sale of Equity Interests in any of its Restricted Subsidiaries. Notwithstanding the preceding, none of the following items will be deemed to be an Asset Sale: (1) any single transaction or series of related transactions that involves assets having a fair market value of less than $1.0 million; (2) a transfer of assets between or among Jarden and its Subsidiaries, (3) an issuance of Equity Interests by a Subsidiary to Jarden or to another Subsidiary; (4) the sale or lease of equipment, inventory, accounts receivable or other assets in the ordinary course of business; (5) the sale or other disposition of cash or Cash Equivalents or Government Securities; (6) transfers of accounts receivable and related assets by Jarden or any of its Restricted Subsidiaries to a Receivables Subsidiary in connection with a Qualified Receivables Transaction; and (7) a Restricted Payment or Permitted Investment that is permitted by the covenant described above under the caption "--Certain Covenants--Restricted Payments." "Beneficial Owner" has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act, except that in calculating the beneficial ownership of any particular "person" (as that term is used in Section 13(d)(3) of the Exchange Act), such "person" will be deemed to have beneficial ownership of all securities that such "person" has the right to acquire by conversion or exercise of other securities, whether such right is currently exercisable or is exercisable only upon the occurrence of a subsequent condition. The terms "Beneficially Owns" and "Beneficially Owned" have a corresponding meaning. "Board of Directors" means: (1) with respect to a corporation, the board of directors of the corporation; (2) with respect to a partnership or limited liability company, the Board of Directors of the general partner or managing member of the partnership; and 86 (3) with respect to any other Person, the board or committee of such Person serving a similar function. "Capital Lease Obligation" means, at the time any determination is to be made, the amount of the liability in respect of a capital lease that would at that time be required to be capitalized on a balance sheet in accordance with GAAP. "Capital Stock" means: (1) in the case of a corporation, corporate stock; (2) in the case of an association or business entity, any and all shares, interests, participations, rights or other equivalents (however designated) of corporate stock; (3) in the case of a partnership or limited liability company, partnership or membership interests (whether general or limited); and (4) any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, the issuing Person. "Cash Equivalents" means: (1) United States dollars; (2) securities issued or directly and fully guaranteed or insured by the United States government or any agency or instrumentality of the United States government (provided that the full faith and credit of the United States is pledged in support of those securities) having maturities of not more than six months from the date of acquisition; (3) certificates of deposit and eurodollar time deposits with maturities of six months or less from the date of acquisition, bankers' acceptances with maturities not exceeding six months and overnight bank deposits, in each case, with any domestic commercial bank having capital and surplus in excess of $500.0 million and a Thomson Bank Watch Rating of "B" or better; (4) repurchase obligations with a term of not more than 30 days for underlying securities of the types described in clauses (2) and (3) above entered into with any financial institution meeting the qualifications specified in clause (3) above; (5) commercial paper having the highest rating obtainable from Moody's Investors Service, Inc. or Standard & Poor's Rating Services and in each case maturing within six months after the date of acquisition; and (6) money market funds at least 95% of the assets of which constitute Cash Equivalents of the kinds described in clauses (1) through (5) of this definition. "Change of Control" means the occurrence of any of the following: 87 (1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related transactions, of all or substantially all of the properties or assets of Jarden and its Restricted Subsidiaries taken as a whole to any "person" (as that term is used in Section 13(d)(3) of the Exchange Act) other than a Permitted Holder; (2) the adoption of a plan relating to the liquidation or dissolution of Jarden; (3) the consummation of any transaction (including, without limitation, any merger or consolidation) the result of which is that any "person" (as defined above), other than a Permitted Holder, becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of Jarden, measured by voting power rather than number of shares; or (4) the first day on which a majority of the members of the Board of Directors of Jarden are not Continuing Directors. "Consolidated Cash Flow" means, with respect to any specified Person for any period, the Consolidated Net Income of such Person for such period, plus (without duplication): (1) an amount equal to any extraordinary loss plus any net loss realized by such Person or any of its Restricted Subsidiaries in connection with an Asset Sale, to the extent such losses were deducted in computing such Consolidated Net Income; (2) provision for taxes based on income or profits of such Person and its Restricted Subsidiaries for such period, to the extent that such provision for taxes was deducted in computing such Consolidated Net Income; (3) consolidated interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued and whether or not capitalized (including, without limitation, amortization of debt issuance costs and original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers' acceptance financings, and net of the effect of all payments made or received pursuant to Hedging Obligations), to the extent that any such expense was deducted in computing such Consolidated Net Income; (4) depreciation, amortization (including amortization of goodwill and other intangibles but excluding amortization of prepaid cash expenses that were paid in a prior period) and other non-cash expenses (excluding any such non-cash expense to the extent that it represents an accrual of or reserve for cash expenses in any future period or amortization of a prepaid cash expense that was paid in a prior period) of such Person and its Restricted Subsidiaries for such period to the extent that such depreciation, amortization and other non-cash expenses were deducted in computing such Consolidated Net Income; and (5) the net adjustment to EBITDA to calculate adjusted EBITDA on a pro forma basis 88 for the year ended December 31, 2001; minus non-cash items increasing such Consolidated Net Income for such period, other than any items that represent the reversal of any accrual of, or cash reserve for, anticipated cash charges in any prior period, in each case, on a consolidated basis and determined in accordance with GAAP. Notwithstanding the preceding, the provision for taxes based on the income or profits, depreciation and amortization and other non-cash expenses, and net adjustment to EBITDA of a Subsidiary of Jarden will be added to Consolidated Net Income to compute Consolidated Cash Flow of Jarden only to the extent that a corresponding amount would be permitted at the date of determination to be dividended to Jarden by such Subsidiary without prior governmental approval (that has not been obtained), and without direct or indirect restriction pursuant to the terms of its charter and all agreements, instruments, judgments, decrees, orders, statutes, rules and governmental regulations applicable to that Subsidiary or its stockholders. "Consolidated Net Income" means, with respect to any specified Person for any period, the aggregate of the Net Income of such Person and its Restricted Subsidiaries for such period, on a consolidated basis, determined in accordance with GAAP; provided that: (1) the Net Income (but not loss) of any Person that is not a Restricted Subsidiary or that is accounted for by the equity method of accounting will be included only to the extent of the amount of dividends or distributions paid in cash to the specified Person or a Restricted Subsidiary of the Person; (2) the Net Income of any Restricted Subsidiary will be excluded to the extent that the declaration or payment of dividends or similar distributions by that Restricted Subsidiary of that Net Income is not at the date of determination permitted without any prior governmental approval (that has not been obtained) or, directly or indirectly, by operation of the terms of its charter or any agreement, instrument, judgment, decree, order, statute, rule or governmental regulation applicable to that Restricted Subsidiary or its stockholders; (3) the Net Income of any Person acquired in a pooling of interests transaction for any period prior to the date of such acquisition will be excluded; and (4) the cumulative effect of a change in accounting principles will be excluded. "Continuing Directors" means, as of any date of determination, any member of the Board of Directors of Jarden who: (1) was a member of such Board of Directors on the date of the indenture; or (2) was nominated for election or elected to such Board of Directors with the approval of a majority of the Continuing Directors who were members of such Board at the time of such nomination or election. "Default" means any event that is, or with the passage of time or the giving of notice or both would be, an Event of Default. "Designated Senior Debt" means: 89 (1) any Indebtedness outstanding under the New Senior Credit Facility; and (2) after payment in full of all Obligations under the New Senior Credit Facility, any other Senior Debt permitted under the indenture the outstanding principal amount of which is $25.0 million or more and that has been designated by Jarden as "Designated Senior Debt." "Disqualified Stock" means any Capital Stock that, by its terms (or by the terms of any security into which it is convertible, or for which it is exchangeable, in each case at the option of the holder of the Capital Stock), or upon the happening of any event, matures or is mandatorily redeemable, pursuant to a sinking fund obligation or otherwise, or redeemable at the option of the holder of the Capital Stock, in whole or in part, on or prior to the date that is 91 days after the date on which the notes mature. Notwithstanding the preceding sentence, any Capital Stock that would constitute Disqualified Stock solely because the holders of the Capital Stock have the right to require Jarden to repurchase such Capital Stock upon the occurrence of a change of control or an asset sale will not constitute Disqualified Stock if the terms of such Capital Stock provide that Jarden may not repurchase or redeem any such Capital Stock pursuant to such provisions unless such repurchase or redemption complies with the covenant described above under the caption "--Certain Covenants--Restricted Payments." "Domestic Subsidiary" means any Restricted Subsidiary of Jarden that was formed under the laws of the United States or any state of the United States or the District of Columbia or that guarantees or otherwise provides direct credit support for any Indebtedness of Jarden. "Equity Interests" means Capital Stock and all warrants, options or other rights to acquire Capital Stock (but excluding any debt security that is convertible into, or exchangeable for, Capital Stock). "Existing Indebtedness" means Indebtedness of Jarden and its Subsidiaries (other than Indebtedness under the New Senior Credit Facility) in existence on the date of the indenture, until such amounts are repaid. "Family" shall mean, with respect to any Person, (i) the current and former spouses of such Person and (ii) the ancestors, siblings and descendants, whether by blood or adoption, of such Person. "Fixed Charge Coverage Ratio" means with respect to any specified Person for any period, the ratio of the Consolidated Cash Flow of such Person and its Restricted Subsidiaries for such period to the Fixed Charges of such Person and its Restricted Subsidiaries for such period. In the event that the specified Person or any of its Restricted Subsidiaries incurs, assumes, Guarantees, repays, repurchases or redeems any Indebtedness (other than ordinary working capital borrowings) or issues, repurchases or redeems preferred stock subsequent to the commencement of the period for which the Fixed Charge Coverage Ratio is being calculated and on or prior to the date on which the event for which the calculation of the Fixed Charge Coverage Ratio is made (the "Calculation Date"), then the Fixed Charge Coverage Ratio will be 90 calculated giving pro forma effect to such incurrence, assumption, Guarantee, repayment, repurchase or redemption of Indebtedness, or such issuance, repurchase or redemption of preferred stock, and the use of the proceeds therefrom as if the same had occurred at the beginning of the applicable four-quarter reference period. In addition, for purposes of calculating the Fixed Charge Coverage Ratio: (1) acquisitions that have been made by the specified Person or any of its Restricted Subsidiaries, including through mergers or consolidations and including any related financing transactions, during the four-quarter reference period or subsequent to such reference period and on or prior to the Calculation Date will be given pro forma effect as if they had occurred on the first day of the four-quarter reference period and Consolidated Cash Flow for such reference period will be calculated on a pro forma basis in accordance with Regulation S-X under the Securities Act, but without giving effect to clause (3) of the proviso set forth in the definition of Consolidated Net Income; (2) the Consolidated Cash Flow attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses disposed of prior to the Calculation Date, will be excluded; and (3) the Fixed Charges attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses disposed of prior to the Calculation Date, will be excluded, but only to the extent that the obligations giving rise to such Fixed Charges will not be obligations of the specified Person or any of its Restricted Subsidiaries following the Calculation Date. "Fixed Charges" means, with respect to any specified Person for any period, the sum, without duplication, of: (1) the consolidated interest expense of such Person and its Restricted Subsidiaries for such period, whether paid or accrued, including, without limitation, amortization of debt issuance costs and original issue discount, non-cash interest payments, the interest component of any deferred payment obligations, the interest component of all payments associated with Capital Lease Obligations, commissions, discounts and other fees and charges incurred in respect of letter of credit or bankers' acceptance financings, and net of the effect of all payments made or received pursuant to Hedging Obligations; plus (2) the consolidated interest of such Person and its Restricted Subsidiaries that was capitalized during such period; plus (3) any interest expense on Indebtedness of another Person that is Guaranteed by such Person or one of its Restricted Subsidiaries or secured by a Lien on assets of such Person or one of its Restricted Subsidiaries, whether or not such Guarantee or Lien is called upon; plus (4) the product of (a) all dividends, whether paid or accrued and whether or not in cash, on any Disqualified Stock of such Person or any preferred stock of its Restricted Subsidiaries, other than dividends payable solely in Equity Interests (other than 91 Disqualified Stock) of Jarden or to Jarden or a Restricted Subsidiary of Jarden, times (b) a fraction, the numerator of which is one and the denominator of which is one minus the then current combined marginal Federal, state and local income tax rate of such Person (taking into account the deductibility of state and local taxes for Federal income tax purposes), expressed as a decimal, in each case, on a consolidated basis and in accordance with GAAP. "GAAP" means generally accepted accounting principles set forth in the opinions and pronouncements of the Accounting Principles Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board or in such other statements by such other entity as have been approved by a significant segment of the accounting profession, which are in effect from time to time. "Guarantee" means a guarantee other than by endorsement of negotiable instruments for collection in the ordinary course of business, direct or indirect, in any manner including, without limitation, by way of a pledge of assets or through letters of credit or reimbursement agreements in respect thereof, of all or any part of any Indebtedness. "Guarantors" means each of: (1) each of Jarden's direct and indirect Domestic Subsidiaries existing on the date of the indenture; and (2) any other Subsidiary that executes a Subsidiary Guarantee in accordance with the provisions of the indenture; and their respective successors and assigns. "Hedging Obligations" means, with respect to any specified Person, the obligations of such Person under: (1) interest rate swap agreements, interest rate cap agreements and interest rate collar agreements; and (2) other agreements or arrangements designed to protect such Person against fluctuations in interest rates. "Indebtedness" means, with respect to any specified Person, any indebtedness of such Person, whether or not contingent: (1) in respect of borrowed money; (2) evidenced by bonds, notes, debentures or similar instruments or letters of credit (or reimbursement agreements in respect thereof); (3) in respect of banker's acceptances; (4) representing Capital Lease Obligations; 92 (5) representing the balance deferred and unpaid of the purchase price of any property, except any such balance that constitutes an accrued expense or trade payable; or (6) representing any Hedging Obligations, if and to the extent any of the preceding items (other than letters of credit and Hedging Obligations) would appear as a liability upon a balance sheet of the specified Person prepared in accordance with GAAP. In addition, the term "Indebtedness" includes all Indebtedness of others secured by a Lien on any asset of the specified Person (whether or not such Indebtedness is assumed by the specified Person) and, to the extent not otherwise included, the Guarantee by the specified Person of any Indebtedness of any other Person. The amount of any Indebtedness outstanding as of any date will be: (1) the accreted value of the Indebtedness, in the case of any Indebtedness issued with original issue discount; (2) the principal amount of the Indebtedness, together with any interest on the Indebtedness that is more than 30 days past due, in the case of any other Indebtedness; (3) the lesser of the Indebtedness and the fair market value of the collateral asset, in the case of any Indebtedness of others secured by a Lien on any asset of the specified Person; and (4) the lesser of the primary Indebtedness and any stated limit on recourse under the Guarantee, in the case of Indebtedness of others secured by a Guarantee of the specified Person. "Investments" means, with respect to any Person, all direct or indirect investments by such Person in other Persons (including Affiliates) in the forms of loans (including Guarantees or other obligations), advances or capital contributions (excluding commission, travel and similar advances to directors, officers, employees and consultants made in the ordinary course of business), purchases or other acquisitions for consideration of Indebtedness, Equity Interests or other securities, together with all items that are or would be classified as investments on a balance sheet prepared in accordance with GAAP. If Jarden or any Subsidiary of Jarden sells or otherwise disposes of any Equity Interests of any direct or indirect Subsidiary of Jarden such that, after giving effect to any such sale or disposition, such Person is no longer a Subsidiary of Jarden, Jarden will be deemed to have made an Investment on the date of any such sale or disposition equal to the fair market value of Jarden's Investments in such Subsidiary that were not sold or disposed of in an amount determined as provided in the final paragraph of the covenant described above under the caption "--Certain Covenants--Restricted Payments." The acquisition by Jarden or any of its Restricted Subsidiaries of a Person that holds an Investment in a third Person will be deemed to be an Investment by Jarden or such Restricted Subsidiary in such third Person in an amount equal to the fair market value of the Investments held by the acquired Person in such third Person in an amount determined as provided in the final paragraph of the covenant described above under the caption "--Certain Covenants--Restricted Payments," if the acquired Person becomes a Restricted Subsidiary as a result of such acquisition and such 93 third Person does not become a Restricted Subsidiary as a result of such acquisition. "Lien" means, with respect to any asset, any mortgage, lien, pledge, charge, security interest or encumbrance of any kind in respect of such asset, whether or not filed, recorded or otherwise perfected under applicable law, including any conditional sale or other title retention agreement, any lease in the nature thereof, any option or other agreement to sell or give a security interest in any asset. "Net Income" means, with respect to any specified Person, the net income (loss) of such Person, determined in accordance with GAAP and before any reduction in respect of preferred stock dividends, excluding, however: (1) any gain (but not loss), together with any related provision for taxes on such gain (but not loss), realized in connection with: (a) any Asset Sale; or (b) the disposition of any securities by such Person or any of its Restricted Subsidiaries or the extinguishment of any Indebtedness of such Person or any of its Restricted Subsidiaries; and (2) any extraordinary gain (but not loss), together with any related provision for taxes on such extraordinary gain (but not loss). "Net Proceeds" means the aggregate cash proceeds received by Jarden or any of its Restricted Subsidiaries in respect of any Asset Sale (including, without limitation, any cash received upon the sale or other disposition of any non-cash consideration received in any Asset Sale), net of (a) the direct costs relating to such Asset Sale, including, without limitation, legal, accounting and investment banking fees, and sales commissions, and any relocation expenses incurred as a result of the Asset Sale, (b) taxes paid or payable as a result of the Asset Sale, in each case, after taking into account any available tax credits or deductions and any tax sharing arrangements, (c) amounts required to be applied to the repayment of Indebtedness, other than Senior Debt secured by a Lien on the asset or assets that were the subject of such Asset Sale, and any reserve for adjustment in respect of the sale price of such asset or assets established in accordance with GAAP, including pension and other post-employment benefit liabilities, liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale, and (d) amounts required to be paid to any Person (other than Jarden or any Restricted Subsidiary) owning a beneficial interest in the assets that are subject to the Asset Sale. "New Senior Credit Facility" means (1) prior to the consummation of the Acquisition, Jarden's existing credit facility as in effect on the date of the indenture; and (2) following the consummation of the Acquisition, that certain Credit Agreement, dated as of the Closing Date, by and among Jarden, Bank of America, N.A., as administrative agent, Banc of America Securities LLC, as co-lead arranger, and CIBC World Markets Corp., as co-lead arranger, providing for $50.0 million of term loan borrowings and up to $50.0 million of revolving credit borrowings, including any related notes, guarantees, collateral documents, instruments and agreements executed in connection therewith, and in each case as amended, amended and restated, supplemented, modified, renewed, refunded, replaced or refinanced from time to time. "Non-Recourse Debt" means Indebtedness: 94 (1) as to which neither Jarden nor any of its Restricted Subsidiaries (a) provides credit support of any kind (including any undertaking, agreement or instrument that would constitute Indebtedness) or (b) is directly or indirectly liable as a guarantor or otherwise; (2) no default with respect to which (including any rights that the holders of the Indebtedness may have to take enforcement action against an Unrestricted Subsidiary) would permit upon notice, lapse of time or both any holder of any other Indebtedness of Jarden or any of its Restricted Subsidiaries to declare a default on such other Indebtedness or cause the payment of the Indebtedness to be accelerated or payable prior to its stated maturity; and (3) as to which the lenders have been notified in writing that they will not have any recourse to the stock or assets of Jarden or any of its Restricted Subsidiaries (other than Equity Interests in an Unrestricted Subsidiary). "Obligations" means any principal, interest, penalties, fees, indemnifications, reimbursements, damages and other liabilities payable under the documentation governing any Indebtedness. "Permitted Business" means any business in which Jarden and its Restricted Subsidiaries or Tilia were engaged on the date of the indenture, any other business in the consumer products industry, including without limitation food products, and any business reasonably related or complementary thereto. "Permitted Holder" means (i) Martin E. Franklin or Ian Ashken; (ii) any member of the Family of Martin E. Franklin or Ian Ashken; (iii) any conservatorship, custodianship or decedent's estate of any Person specified in the foregoing clause (i) or (ii); (iv) any trust established for the benefit of any Person specified in the foregoing clause (i) or (ii); or (v) any corporation, limited liability company, partnership or other entity, the controlling equity interests in which are held by or for the benefit of any one or more Person specified in the foregoing clause (i) or (ii). "Permitted Investments" means: (1) any Investment in Jarden or in a Restricted Subsidiary of Jarden; (2) any Investment in Cash Equivalents; (3) any Investment by Jarden or any Subsidiary of Jarden in a Person, if as a result of such Investment: (a) such Person becomes a Restricted Subsidiary of Jarden; or (b) such Person is merged, consolidated or amalgamated with or into, or transfers or conveys substantially all of its assets to, or is liquidated into, Jarden or a Restricted Subsidiary of Jarden; (4) any Investment made as a result of the receipt of non-cash consideration from an 95 Asset Sale that was made pursuant to and in compliance with the covenant described above under the caption "--Repurchase at the Option of Holders--Asset Sales"; (5) any acquisition of assets solely in exchange for the issuance of Equity Interests (other than Disqualified Stock) of Jarden; (6) accounts receivable and any Investments received in compromise of obligations incurred in the ordinary course of trade creditors or customers that were incurred in the ordinary course of business, including pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of any trade creditor or customer or upon foreclosure on any secured Investment; (7) Hedging Obligations; (8) other Investments in any Person having an aggregate fair market value (measured on the date each such Investment was made and without giving effect to subsequent changes in value), when taken together with all other Investments made pursuant to this clause (8) since the date of the indenture not to exceed $10.0 million in original amount at any time outstanding; and (9) Investments by Jarden or a Restricted Subsidiary of Jarden in a Receivables Subsidiary in connection with a Qualified Receivables Transaction. "Permitted Junior Securities" means: (1) Equity Interests in Jarden or any Guarantor or any successor to either of the foregoing; or (2) debt securities that are subordinated to all Senior Debt and any debt securities issued in exchange for Senior Debt to substantially the same extent as, or to a greater extent than, the notes and the Subsidiary Guarantees are subordinated to Senior Debt under the indenture. "Permitted Liens" means: (1) Liens on assets of Jarden and its Restricted Subsidiaries securing Senior Debt; (2) Liens in favor of Jarden and its Restricted Subsidiaries; (3) Liens on property of a Person existing at the time such Person is merged with or into or consolidated with Jarden or any Restricted Subsidiary of Jarden; provided that such Liens were in existence prior to the contemplation of such merger or consolidation and do not extend to any assets other than those of the Person merged into or consolidated with Jarden or the Restricted Subsidiary; (4) Liens on property existing at the time of acquisition of the property by Jarden or any Restricted Subsidiary of Jarden; provided that such Liens were in existence prior to the contemplation of such acquisition; 96 (5) Liens securing reimbursement obligations with respect to letters of credit and surety or performance bonds issued in the ordinary course of business; (6) Liens to secure Indebtedness (including Capital Lease Obligations) permitted by clause (6) of the second paragraph of the covenant entitled "--Certain Covenants--Incurrence of Indebtedness and Issuance of Preferred Stock" covering only the assets acquired with such Indebtedness; (7) Liens existing on the date of the indenture; (8) Liens on Equity Interests in Unrestricted Subsidiaries that secure Non-Recourse Debt; and (9) Liens upon specific items of inventory or other goods and proceeds of any Person securing such Person's obligations in respect of bankers' acceptances issued or created for the account of such Person to facilitate the purchase, shipment or storage of such inventory or other goods. "Permitted Refinancing Indebtedness" means any Indebtedness of Jarden or any of its Restricted Subsidiaries issued in exchange for, or the net proceeds of which are used to extend, refinance, renew, replace, defease or refund other Indebtedness of Jarden or any of its Restricted Subsidiaries (other than intercompany Indebtedness); provided that: (1) the principal amount (or accreted value, if applicable) of such Permitted Refinancing Indebtedness does not exceed the principal amount (or accreted value, if applicable) of the Indebtedness extended, refinanced, renewed, replaced, defeased or refunded (plus all accrued interest on the Indebtedness and the amount of all expenses and premiums incurred in connection therewith, including consent fees); (2) such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of, and has a Weighted Average Life to Maturity equal to or greater than the Weighted Average Life to Maturity of, the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; (3) if the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded is subordinated in right of payment to the notes or the Subsidiary Guarantees, such Permitted Refinancing Indebtedness has a final maturity date later than the final maturity date of the notes, and is subordinated in right of payment to, the notes or the Subsidiary Guarantees on terms at least as favorable to the Holders of notes as those contained in the documentation governing the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded; and (4) such Indebtedness is incurred either by Jarden, by the Restricted Subsidiary that is the obligor on the Indebtedness being extended, refinanced, renewed, replaced, defeased or refunded or by any intermediate Restricted Subsidiary. "Person" means any individual, corporation, partnership, joint venture, association, joint- 97 stock company, trust, unincorporated organization, limited liability company or government or other entity. "Public Equity Offering" means an offer and sale of Capital Stock (other than Disqualified Stock) of Jarden pursuant to a registration statement that has been declared effective by the Commission pursuant to the Securities Act (other than a registration statement on Form S-8 or otherwise relating to equity securities issuable under any employee benefit plan of Jarden). "Qualified Receivables Transaction" means any transaction or series of transactions that may be entered into by Jarden or any of its Restricted Subsidiaries pursuant to which Jarden or such Restricted Subsidiary may sell, convey or otherwise transfer to a Receivables Subsidiary accounts receivable (whether now existing or arising in the future) and any assets related thereto, including without limitation, all collateral securing such accounts receivable, all guarantees or other obligations in respect of such accounts receivable, proceeds of such accounts receivable and all other assets that are customarily transferred, or in respect of which security interests are customarily granted, in connection with an asset securitization transaction involving accounts receivable. "Receivables Subsidiary" means an Unrestricted Subsidiary of Jarden that engages in no activities other than in connection with financing of accounts receivable and that is designated by the Board of Directors of Jarden as a Receivables Subsidiary. For purposes of the foregoing and the definition of "Unrestricted Subsidiary," the making of Standard Securitization Undertakings by Jarden or any of its Restricted Subsidiaries shall not be deemed inconsistent with qualifying as an Unrestricted Subsidiary. Any such designation by the Board of Directors of Jarden shall be evidenced to the trustee by filing with the trustee a certified copy of the resolution of the Board of Directors of the issuer giving effect to such designation and an officers' certificate certifying, to the best of such officer's knowledge and belief after consulting with counsel, that such designation complied with the foregoing conditions. "Restricted Investment" means an Investment other than a Permitted Investment. "Restricted Subsidiary" of a Person means any Subsidiary of the referent Person that is not an Unrestricted Subsidiary. "Senior Debt" means: (1) all Indebtedness of Jarden or any Guarantor outstanding under the New Senior Credit Facility and all Hedging Obligations with respect thereto; (2) any other Indebtedness of Jarden or any Guarantor permitted to be incurred under the terms of the indenture, unless the instrument under which such Indebtedness is incurred expressly provides that it is subordinated to any Senior Debt or on a parity with or subordinated in right of payment to the notes or any Subsidiary Guarantee; and (3) all Obligations with respect to the items listed in the preceding clauses (1) and (2). Notwithstanding anything to the contrary in the preceding, Senior Debt will not include: 98 (1) any liability for Federal, state, local or other taxes owed or owing; (2) any intercompany Indebtedness of Jarden or any of its Subsidiaries to Jarden or any of its Affiliates; (3) any trade payables; (4) the portion of any Indebtedness that is incurred in violation of the indenture; or (5) Indebtedness which, when incurred and without respect to any election under Section 1111(b) of Title 11, United States Code, is without recourse to Jarden or any Guarantor. "Significant Subsidiary" means any Restricted Subsidiary that would be a "significant subsidiary" as defined in Article 1, Rule 1-02 of Regulation S-X, promulgated pursuant to the Securities Act, as such Regulation is in effect on the date hereof. "Standard Securitization Undertaking" means representations, warranties, covenants and indemnities entered into by Jarden or any Restricted Subsidiary of Jarden that are reasonably customary in accounts receivable transactions. "Stated Maturity" means, with respect to any installment of interest or principal on any series of Indebtedness, the date on which the payment of interest or principal was scheduled to be paid in the original documentation governing such Indebtedness, and will not include any contingent obligations to repay, redeem or repurchase any such interest or principal prior to the date originally scheduled for the payment thereof. "Subsidiary" means, with respect to any specified Person: (1) any corporation, association or other business entity of which more than 50% of the total voting power of shares of Capital Stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees of the corporation, association or other business entity is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person (or a combination thereof); and (2) any partnership (a) the sole general partner or the managing general partner of which is such Person or a Subsidiary of such Person or (b) the only general partners of which are that Person or one or more Subsidiaries of that Person (or any combination thereof). "Unrestricted Subsidiary" means any Subsidiary of Jarden that is designated by the Board of Directors as an Unrestricted Subsidiary pursuant to a Board Resolution, but only to the extent that such Subsidiary: (1) has no Indebtedness other than Non-Recourse Debt; (2) is not party to any agreement, contract, arrangement or understanding with Jarden or any Restricted Subsidiary of Jarden unless the terms of any such agreement, contract, 99 arrangement or understanding are no less favorable to Jarden or such Restricted Subsidiary than those that might be obtained at the time from Persons who are not Affiliates of Jarden; (3) is a Person with respect to which neither Jarden nor any of its Restricted Subsidiaries has any direct or indirect obligation (a) to subscribe for additional Equity Interests or (b) to maintain or preserve such Person's financial condition or to cause such Person to achieve any specified levels of operating results; (4) has not guaranteed or otherwise directly or indirectly provided credit support for any Indebtedness of Jarden or any of its Restricted Subsidiaries; and (5) has at least one director on its Board of Directors that is not a director or executive officer of Jarden or any of its Restricted Subsidiaries and has at least one executive officer that is not a director or executive officer of Jarden or any of its Restricted Subsidiaries. Any designation of a Subsidiary of Jarden as an Unrestricted Subsidiary will be evidenced to the trustee by filing with the trustee a certified copy of the Board Resolution giving effect to such designation and an officers' certificate certifying that such designation complied with the preceding conditions and was permitted by the covenant described above under the "--Certain Covenants--Restricted Payments." If, at any time, any Unrestricted Subsidiary would fail to meet the preceding requirements as an Unrestricted Subsidiary, it will thereafter cease to be an Unrestricted Subsidiary for purposes of the indenture and (i) will be deemed to be redesignated as a Restricted Subsidiary and (ii) any Indebtedness of such Subsidiary will be deemed to be incurred by a Restricted Subsidiary of Jarden as of such date and, if such Indebtedness is not permitted to be incurred as of such date under the covenant described under the caption "--Certain Covenants--Incurrence of Indebtedness and Issuance of Preferred Stock," Jarden will be in default of such covenant. The Board of Directors of Jarden may at any time designate any Unrestricted Subsidiary to be a Restricted Subsidiary; provided that such designation will be deemed to be an incurrence of Indebtedness by a Restricted Subsidiary of Jarden of any outstanding Indebtedness of such Unrestricted Subsidiary and such designation will only be permitted if (1) such Indebtedness is permitted under the covenant described under the caption "--Certain Covenants--Incurrence of Indebtedness and Issuance of Preferred Stock," calculated on a pro forma basis as if such designation had occurred at the beginning of the four-quarter reference period; and (2) no Default or Event of Default would be in existence following such designation. Upon any such designation as a Restricted Subsidiary, such Subsidiary, if it is a Domestic Subsidiary, will become a Guarantor and execute a supplemental indenture. "Voting Stock" of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of Directors of such Person. "Weighted Average Life to Maturity" means, when applied to any Indebtedness at any date, the number of years obtained by dividing: (1) the sum of the products obtained by multiplying (a) the amount of each then remaining installment, sinking fund, serial maturity or other required payments of principal, including payment at final maturity, in respect of the Indebtedness, by (b) the 100 number of years (calculated to the nearest one-twelfth) that will elapse between such date and the making of such payment; by (2) the then outstanding principal amount of such Indebtedness. DESCRIPTION OF SENIOR INDEBTEDNESS On April 24, 2002, we refinanced our existing senior indebtedness with a new $100 million senior secured credit facility (the "Credit Facility") pursuant to the terms of a Credit Agreement (the "Credit Agreement"), with Bank of America, N.A., as Administrative Agent, Swing Line Lender, and L/C Issuer, Canadian Imperial Bank of Commerce, as Syndication Agent, National City Bank of Indiana, as Documentation Agent, and the other Lenders party thereto, including The Bank of New York, Fleet National Bank, Harris Trust and Savings Bank, U.S. Bank National Association, Allfirst Bank, Transamerica Business Capital Corporation, and Union Federal Bank of Indianapolis. The Credit Agreement, among other things, provides for a new senior credit facility for up to $100 million of senior secured loans, consisting of a $50 million five-year revolving credit facility (the "Revolving Credit Facility") and a $50 million five-year term loan facility (the "Term Loan Facility"). The Revolving Credit Facility includes up to an aggregate of $10 million in standby and commercial letters of credit and up to an aggregate of $10 million in swing line loans. As of June 30, 2002, we had not drawn any of the $50 million available under the Revolving Credit Facility, although we used some availability in connection with pre-existing letters of credit. The Term Loan Facility was drawn in full, in the amount of $50 million, at the closing of the Credit Facility and such principal amount remains outstanding as of June 30, 2002. Principal and interest under the Term Loan Facility are payable quarterly, in accordance with a specified amortization schedule, with the final payment of all amounts outstanding thereunder being due on April 24, 2007. The Revolving Credit Facility and the Term Loan Facility bear interest at a rate equal to (i) the Eurodollar Rate (as determined by the Administrative Agent) pursuant to an agreed formula or (ii) a Base Rate equal to the higher of (a) the Bank of America prime rate and (b) the federal funds rate plus .50%, plus, in each case, an applicable margin ranging from .75% to 1.50% for Base Rate loans and from 2.00% to 2.75% for Eurodollar Rate loans. The Credit Agreement contains certain restrictions on the conduct of our business, including, among other things, restrictions, generally, on: o incurring debt; o disposing of certain assets; o making investments; o exceeding certain agreed capital expenditures; 101 o creating or suffering liens on our assets; o completing certain mergers, consolidations, and with permitted exceptions, acquisitions; o declaring dividends; o redeeming or prepaying other debt; and o transactions with affiliates. The Credit Agreement also requires us to maintain certain financial covenants, including a minimum fixed charge ratio, a maximum total leverage ratio, a maximum senior leverage ratio, and a minimum consolidated net worth. However, the Credit Agreement does not make any significant restrictions on our or our Domestic Subsidiaries' ability to obtain funds from their respective subsidiaries by dividend or loan. The occurrence of certain events or conditions described in the Credit Agreement (subject to grace periods in certain cases) constitutes an event of default. If an event of default occurs, the Administrative Agent may, at the request or consent of the Lenders, among other things, declare the entire outstanding balance of principal and interest of all outstanding loans to be immediately due and payable. The events of default include, among other things: o our failure to pay any principal, interest, or other fees when due; o any material judgment or order entered against us; o any inaccuracy in the representations and warranties; o failure to observe certain covenants under the Credit Agreement (including, e.g., the financial covenants); o bankruptcy, insolvency or receivership proceedings with respect to Jarden; and o a change of control of Jarden. The Credit Agreement provides that we shall make certain required prepayments of the Term Loan and Revolving Loan upon the happening of certain specified events including, among other things, the sale of Equity Securities and proceeds received from Dispositions, each with permitted exceptions. In connection with entering into the Credit Agreement, all of our Domestic Subsidiaries, including Hearthmark, Inc., Alltrista Plastics Corporation, Alltrista Newco Corporation, Alltrista Zinc Products, L.P., Penn Video, Inc., Lafayette Steel & Aluminum Corporation, Caspers Tin Plate Company, Unimark Plastics, Inc., LumenX Corporation, Alltrista 3 Unimark, Inc., TriEnda Corporation, Tilia, Inc. (formerly known as Alltrista Acquisition I, Inc.), Tilia Direct, Inc. (formerly known as Alltrista Acquisition II, Inc.), and Tilia International, Inc. (formerly known 102 as Alltrista Acquisition III, Inc.), and Quoin Corporation, have agreed to guarantee our obligations under the Credit Agreement. Pursuant to the Securities Pledge Agreement, all obligations under the Credit Agreement are secured by a security interest in all of the capital stock or other equity interests of each of our existing or future direct or indirect domestic subsidiaries, and 65% of the voting capital stock or other equity interests and 100% of the nonvoting stock or other equity interests of each of our (or any of our direct or indirect domestic subsidiaries') existing or future direct foreign subsidiaries. Pursuant to the terms of a Security Agreement and an Intellectual Property Security Agreement, the obligations under the Credit Agreement are also secured by a security interest in substantially all of the assets and properties of Jarden and the Domestic Subsidiaries. The foregoing is a summary of the material provisions of the Credit Agreement and certain of the documents entered into by us and the Domestic Subsidiaries in connection therewith which are incorporated herein by reference. MATERIAL FEDERAL INCOME TAX CONSIDERATIONS The following general discussion summarizes the material U.S. Federal income tax consequences of the exchange, ownership and disposition of the notes. This discussion only deals with persons that hold notes as a capital asset within the meaning of Section 1221 of the Internal Revenue Code of 1986, as amended, or the Code, and that purchase the notes for cash at original issue at the initial offering price. This discussion does not address the U.S. Federal income tax consequences that may be relevant to a particular holder subject to special treatment under certain U.S. Federal income tax laws (for example, persons subject to the alternative minimum tax provisions of the Code). Also, this discussion is not intended to be wholly applicable to all categories of investors, some of which, such as dealers in securities or foreign currency, banks, trusts, insurance companies, tax-exempt organizations (employment, charitable or other), persons that hold notes as part of a hedging or conversion transaction or a straddle, persons deemed to sell notes under the constructive sale provisions of the Code, persons that have a functional currency other than the U.S. dollar and investors in pass-through entities, may be subject to special rules. This discussion is based on the Code, the final, temporary and proposed Treasury regulations promulgated thereunder, administrative pronouncements and judicial decisions, all as in effect on the date hereof and all of which are subject to change, possibly with retroactive effect. We have not requested, and will not request, a ruling from the U.S. Internal Revenue Service, or the IRS, with respect to any of the U.S. Federal income tax consequences described below. There can be no assurance that the IRS will not disagree with or challenge any of the conclusions set forth herein. Holders of the new notes should consult their own tax advisors concerning the application of U.S. Federal income tax laws, as well as the laws of any state, local or foreign taxing jurisdiction, to their particular situations. U.S. HOLDERS The following discussion is limited to persons that are U.S. Holders. For these purposes, 103 "U.S. Holder" means the beneficial owner of a note that for U.S. Federal income tax purposes is (i) an individual who is a citizen or resident of the United States, (ii) a corporation or other entity taxable as a corporation that is created or organized under the laws of the United States or any political subdivision thereof or therein, (iii) an estate the income of which is subject to U.S. Federal income tax regardless of its source, (iv) a trust subject to the primary supervision of a United States court and the control of one or more U.S. persons or (v) a person whose worldwide income or gain is otherwise subject to U.S. Federal income tax on a net income basis. If a partnership or other entity taxable as a partnership holds the notes, the tax treatment of a partner will generally depend on the status of the partner and the activities of the partnership. Such partner should consult its tax advisor as to the tax consequences. Exchange Offer The exchange of old notes for the new notes pursuant to the exchange offer should not constitute a taxable event for U.S. Federal income tax purposes. As a result: o a U.S. Holder of notes should not recognize taxable gain or loss as a result of the exchange of old notes for the new notes pursuant to the exchange offer; o the holding period of the new notes should include the holding period of the old notes surrendered in exchange therefor; and o a U.S. Holder's adjusted tax basis in the new notes should be the same as such U.S. Holder's adjusted tax basis in the old notes surrendered in exchange therefor. Interest A U.S. Holder must generally include interest on a note in its ordinary income at the time such interest is received or accrued, in accordance with such U.S. Holder's method of accounting for U.S. Federal income tax purposes. Sale, Exchange or Redemption of Notes Upon the sale, exchange or redemption of a note, a U.S. Holder generally will recognize taxable gain or loss equal to the difference between (i) the amount realized on such disposition and (ii) such U.S. Holder's adjusted tax basis in the note. Notwithstanding the foregoing, any amounts realized in connection with any sale, exchange or redemption with respect to accrued interest not previously included in income will be treated as ordinary interest income. A U.S. Holder's adjusted tax basis in a note generally will equal the cost of such note less any principal payments received by such holder. Contingent Payments In certain circumstances, we may be obligated to pay you amounts in excess of the stated interest and principal payable on the notes. The obligation to make such payments, including liquidated damages and redemption premiums payable in certain circumstances, may implicate the provisions of Treasury regulations relating to "contingent payment debt instruments". If the notes were deemed to be contingent payment debt instruments, U.S. Holders might, among other 104 things, be required to treat any gain recognized on the sale or other disposition of a note as ordinary income, subject to tax at a maximum Federal rate of 38.6%, rather than as capital gain which may be subject to tax at a maximum Federal rate of 20%. The regulations applicable to contingent payment debt instruments have not been the subject of authoritative interpretation and therefore the scope of the regulations is not certain. Jarden intends to take the position that the likelihood that such payments will be made is remote and therefore the notes are not subject to the rules governing contingent payment debt instruments. This determination will be binding on a holder unless such holder explicitly discloses on a statement attached to the holder's timely filed U.S. Federal income tax return for the taxable year that includes the acquisition date of the note that such holder's determination is different. Purchasers of notes are urged to consult their tax advisors regarding the possible application of the contingent payment debt instrument rules to the notes. Information Reporting and Backup Withholding A U.S. Holder of notes may be subject to backup withholding, currently at a rate of 30%, but subject to gradual reduction to 28% by year 2006 (the "Applicable Backup Withholding Rate"), with respect to "reportable payments," which includes interest and principal paid on or the gross proceeds of a sale, exchange or redemption of the notes. The payor of any reportable payments will be required to deduct and withhold the Applicable Backup Withholding Rate from such payments if (i) the payee fails to establish that it is entitled to an exemption, (ii) the payee fails to furnish its correct Taxpayer Identification Number ("TIN") to the payor in the prescribed manner, (iii) the IRS notifies the payor that the TIN furnished by the payee is incorrect, (iv) the payee has failed properly to report the receipt of reportable payments and the IRS has notified the payor that backup withholding is required or (v) the payee fails to certify under penalties of perjury that such payee is not subject to backup withholding. If any one of these events occurs with respect to a U.S. Holder of notes, Jarden or its paying or other withholding agent will be required to withhold the Applicable Backup Withholding Rate from any payments of principal and interest on a note. Any amount withheld from a payment to a U.S. Holder under the backup withholding rules will be allowed as a refund or credit against such holder's U.S. Federal income tax liability, so long as the required information is provided timely to the IRS. Jarden, its paying agent or other withholding agent generally will report to a U.S. Holder of notes and to the IRS the amount of any reportable payments made in respect of the notes for each calendar year and the amount of tax withheld, if any, with respect to such payments. NON-U.S. HOLDERS If you are a "Non-U.S. Holder," as defined below, this section applies to you. A Non-U.S. Holder means any beneficial owner of a new note that is not a United States holder. The rules governing the United States Federal income and estate taxation of a Non-U.S. Holder are complex, and no attempt will be made herein to provide more than a summary of those rules. Special rules may apply to a Non-U.S. Holder if such holder is a controlled foreign corporation, passive foreign investment company or foreign personal holding company and therefore subject to special treatment under the Internal Revenue Code. IF YOU ARE A NON-U.S. HOLDER, YOU SHOULD CONSULT WITH YOUR OWN TAX ADVISORS TO DETERMINE THE EFFECT ON YOU OF FEDERAL, STATE, 105 LOCAL AND FOREIGN TAX LAWS WITH REGARD TO AN INVESTMENT IN THE NEW NOTES, INCLUDING ANY REPORTING REQUIREMENTS. Interest Subject to the discussion of backup withholding below, payments of interest on a note to a Non-U.S. Holder generally will not be subject to U.S. Federal income or withholding tax, provided that (i) the holder does not actually or constructively own 10% or more of the total combined voting power of all classes of stock of Jarden that are entitled to vote, (ii) the holder is not (a) a controlled foreign corporation that is related to Jarden through stock ownership or (b) a bank receiving interest on a loan entered into in the ordinary course of business, (iii) such interest is not effectively connected with the conduct by the Non-U.S. Holder of a trade or business within the United States and (iv) Jarden or its paying agent receives appropriate documentation establishing that the Non-U.S. Holder is not a U.S. person. A Non-U.S. Holder that does not qualify for exemption from withholding under the preceding paragraph generally will be subject to withholding of U.S. Federal income tax at a 30% rate (or lower applicable treaty rate) on payments of interest on the notes. If interest on the notes is effectively connected with the conduct by an Non-U.S. Holder of a trade or business within the United States, such interest will be subject to U.S. Federal income tax on a net income basis at the rate applicable to U.S. persons generally (and, with respect to corporate holders, may also be subject to a 30% branch profits tax). If interest is subject to U.S. Federal income tax on a net income basis in accordance with these rules, such payments will not be subject to U.S. withholding tax so long as the relevant Non-U.S. Holder provides Jarden or its paying agent with the appropriate documentation. Sale, Exchange or Redemption of Notes Subject to the discussion of backup withholding, any gain realized by a Non-U.S. Holder on the sale, exchange or redemption of a note generally will not be subject to U.S. Federal income tax, unless (i) such gain is effectively connected with the conduct by such Non-U.S. Holder of a trade or business within the United States, (ii) the Non-U.S. Holder is an individual who is present in the United States for 183 days or more in the taxable year of disposition and certain other conditions are satisfied or (iii) the Non-U.S. Holder is subject to tax pursuant to the provisions of U.S. Federal income tax law applicable to certain expatriates. Information Reporting and Backup Withholding Backup withholding and information reporting generally will not apply to interest payments made to a Non-U.S. Holder in respect of the notes if such Non-U.S. Holder furnishes Jarden or its paying agent with appropriate documentation of such holder's non-U.S. status. The payment of proceeds from a Non-U.S. Holder's disposition of notes to or through the U.S. office of any broker, domestic or foreign, will be subject to information reporting and possible backup withholding unless such holder certifies as to its non-U.S. status under penalties of perjury or otherwise establishes an exemption, provided that the broker does not have actual knowledge that such holder is a U.S. person or that the conditions of an exemption are not, in 106 fact, satisfied. The payment of the proceeds from a Non-U.S. Holder's disposition of a note to or through a non-U.S. office of either a U.S. broker or a non-U.S. broker that is a U.S.-related person will be subject to information reporting, but not backup withholding, unless such broker has documentary evidence in its files that such Non-U.S. Holder is not a U.S. person and the broker has no knowledge to the contrary, or the Non-U.S. Holder establishes an exemption. For this purpose, a "U.S.-related person" is (i) a controlled foreign corporation for U.S. Federal income tax purposes, (ii) a foreign person 50% or more of whose gross income from all sources for the three-year period ending with the close of its taxable year preceding payment (or for such part of the period that the broker has been in existence) is derived from activities that are effectively connected with the conduct of a U.S. trade or business or (iii) a foreign partnership that is either engaged in the conduct of a trade or business in the U.S. or of which 50% or more of its income or capital interests are held by U.S. persons. Neither information reporting nor backup withholding will apply to a payment of the proceeds of a Non-U.S. Holder's disposition of notes by or through a non-U.S. office of a non-U.S. broker that is not a U.S.-related person. Copies of any information returns filed with the IRS may be made available by the IRS, under the provisions of a specific treaty or agreement, to the taxing authorities of the country in which the Non-U.S. Holder resides. Any amounts withheld under the backup withholding rules from a payment to a Non-U.S. Holder will be allowed as a refund or a credit against such Non-U.S. Holder's U.S. Federal income tax liability, provided that the requisite procedures are followed. Prospective purchasers of notes are urged to consult their own tax advisors with respect to the application to their particular situations of U.S. Federal income tax laws, as well as the laws of any state, local or foreign taxing jurisdiction. PLAN OF DISTRIBUTION We are not using any underwriters for this exchange offer. Each broker-dealer that receives new notes for its own account pursuant to the exchange offer must acknowledge that it will deliver a prospectus in connection with any resale of these new notes. This prospectus, as it may be amended or supplemented from time to time, may be used by a broker-dealer in connection with resales of new notes received in exchange for old notes where the old notes were acquired as a result of market-making activities or other trading activities. We will not receive any proceeds from any sale of new notes by broker-dealers or any other persons. New notes received by broker-dealers for their own account pursuant the exchange offer may be sold from time to time in one or more transactions in the over-the-counter market, in negotiated transactions, through the writing of options on the new notes, or a combination of these methods of resale, at market prices prevailing at the time of resale, at prices related to the prevailing market prices, or negotiated prices. Any resale of new notes may be made directly to purchasers or to or through brokers or dealers who may receive compensation in the form of commissions or concessions from any broker-dealer and/or the purchasers of any new notes. Any broker-dealer that resells new notes that were received by it for its own account pursuant to the exchange offer and any broker-dealer that participates in a distribution of the new notes may be deemed to be an "underwriter" within the meaning of the Securities Act, and any 107 profit on any of these resales of new notes or any commissions or concessions received by any of these persons may be deemed to be underwriting compensation under the Securities Act. The letter of transmittal states that, by acknowledging that it will deliver and by delivering a prospectus, a broker-dealer will not be deemed to admit that it is an "underwriter" within the meaning of the Securities Act. We and the guarantors will use our best efforts to keep this registration statement continuously effective, supplemented and amended to the extent necessary to ensure that it is available for resales of notes acquired by broker-dealers for their own accounts as a result of market-making activities or other trading activities, and to ensure that it conforms with the requirements of the registration rights agreement, the Securities Act and the policies, rules and regulations of the Commission, for a period ending on the earlier of o 180 days from the date on which this registration statement is declared effective and o the date on which a broker-dealer is no longer required to deliver a prospectus in connection with market-making or other trading activities. We and the guarantors will provide sufficient copies of the latest version of this prospectus to broker-dealers promptly upon request at any time during the 180-day (or shorter as provided in the foregoing sentence) period in order to facilitate such resales. We have agreed to pay all expenses incident to the exchange offer, including the expenses of one counsel for the holders of the notes, other than commissions or concessions of any brokers or dealers, and will indemnify the holders of the notes, including any broker-dealer, against certain liabilities, including certain liabilities under the Securities Act. By its acceptance of the exchange offer, any broker-dealer that receives new notes pursuant to the exchange offer agrees to notify us before using the prospectus in connection with the sale or transfer of new notes. The broker-dealer further acknowledges and agrees that, upon receipt of notice from us of the happening of any event which makes any statement in the prospectus untrue in any material respect or which requests the making of any changes in the prospectus to make the statements in the prospectus not misleading or which may impose upon us disclosure obligations that may have a material adverse effect on us, which notice we agree to deliver promptly to the broker-dealer, the broker-dealer will suspend use of the prospectus until we have notified the broker-dealer that delivery of the prospectus may resume and have furnished copies of any amendment or supplement to the prospectus to the broker-dealer. 108 UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS The following unaudited pro forma financial information as of and for the year ended December 31, 2001 and for the three months ended March 31, 2002 has been derived from our audited and unaudited consolidated financial statements as of such date and for such period and gives pro forma effect to (collectively, the "Transactions"): o the November 2001 sales of our thermoformed plastics operations (the "Dispositions"), comprised of the assets of our Triangle, TriEnda and Synergy World divisions, including the receipt in 2002 of $38 million of related tax refunds (the "Tax Refund"); and o the April 2002 acquisition (the "Acquisition") of substantially all the assets of Tilia International, Inc. and its subsidiaries including the related refinancing of our senior credit facility and the offering of the old notes. The unaudited pro forma financial information is not necessarily indicative of our results of operations or financial position had the events reflected herein actually been consummated at the assumed dates, nor is it necessarily indicative of our results of operations or financial position for any future period. The unaudited pro forma financial information should be read in conjunction with the consolidated financial statements, including the related notes, included elsewhere in this prospectus. The pro forma adjustments related to the purchase price allocation and financing of the Acquisition are preliminary and based on information obtained to date and are subject to revision as additional information becomes available. Revisions to the preliminary purchase price allocation and financing of the Acquisition may have a significant impact on the unaudited pro forma information. 109 UNAUDITED PRO FORMA CONDENSED CONSOLIDATED BALANCE SHEET AS OF MARCH 31, 2002
PRO FORMA PRO FORMA JARDEN TILIA ADJUSTMENTS COMBINED --------------------------------------------- --------------- (dollars in thousands) ASSETS Current assets Cash and cash equivalents $ 4,614 $ 28,374 $ (14,712)(a) $ 18,276 Accounts receivable, net 24,259 14,945 39,204 Income taxes receivable 1,605 1,605 Inventories, net 34,818 18,267 53,085 Deferred taxes on income 3,660 5,632 9,292 Other current assets 3,394 4,719 8,113 ----------------------------------------- ----------- Total current assets 72,350 71,937 (14,712) 129,575 ----------------------------------------- ----------- Property, plant and equipment, net 42,154 3,685 45,839 Goodwill, net 15,487 96,351 (b) 111,838 Deferred taxes on income 10,271 122 10,393 Other assets 5,364 1,115 12,000 (c) 18,265 (214)(d) ----------------------------------------- ----------- Total assets $145,626 $ 76,859 $93,425 $ 315,910 ========================================= =========== LIABILITIES AND EQUITY Current liabilities Short-term and current portion of long-term debt $ 12,433 $ - $ (12,433)(e) $ - Accounts payable 21,433 970 22,403 Other current liabilities 16,128 14,240 30,368 ----------------------------------------- ----------- Total current liabilities 49,994 15,210 (12,433) 52,771 ----------------------------------------- ----------- Noncurrent liabilities Long-term debt 44,933 (44,933)(e) 212,654 50,000 (f) 15,000 (g) 147,654 (h) Other noncurrent liabilities 4,184 4,184 ----------------------------------------- ----------- Total noncurrent liabilities 49,117 - 167,721 216,838 Equity 46,515 61,649 (61,649)(i) 46,301 (214)(d) ----------------------------------------- ----------- Total liabilities and equity $145,626 $ 76,859 $ 93,425 $ 315,910 ========================================= ===========
110 UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS FOR THE THREE MONTHS ENDED MARCH 31, 2002
PRO FORMA PRO FORMA JARDEN TILIA ADJUSTMENTS COMBINED ------------------------------------------- ----------- (dollars in thousands, except per share data) Net sales $47,565 $38,525 $ - $ 86,090 Costs and expenses Cost of sales 35,053 19,257 54,310 Selling, general and administrative expenses 8,378 13,458 250 (j) 22,086 ----------- ------- ----------- Operating earnings (loss) 4,134 5,810 (250) 9,694 Interest expense, net 1,232 (52) (1,232)(k) 4,517 4,344 (l) 225 (m) --------------------------------------- ----------- Income (loss) before taxes 2,902 5,862 (3,587) 5,177 Income tax provision (benefit) (4,291) 1,801 (936)(n) (3,426) --------------------------------------- ----------- Net income (loss) $ 7,193 $ 4,061 $(2,651) $ 8,603 ======================================= =========== Basic earnings (loss) per share $ .54 $ .64 Diluted earnings (loss) per share $ .53 $ .63 Weighted average shares outstanding: Basic 13,432 13,432 Diluted 13,678 13,678
111 UNAUDITED PRO FORMA CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS FOR THE YEAR ENDED DECEMBER 31, 2001
DISPOSITIONS- ACQUISITION- RELATED RELATED PRO FORMA JARDEN PRO FORMA PRO FORMA JARDEN ADJUSTMENTS PRO FORMA TILIA ADJUSTMENTS COMBINED ----------------------------- ------------------------------------------ ------------- (dollars in thousands except per share data) Net sales $304,978 $(62,588)(o) $241,679 $183,825 $ - $425,504 (711)(p) Costs and expenses Cost of sales 233,676 (60,901)(o) 172,775 89,668 262,443 Selling, general and administrative expenses 52,212 (9,061)(o) 41,481 61,718 1,000(j) 104,199 (1,670)(p) Goodwill amortization 5,153 (4,044)(j) 1,109 1,109 Special charges (credits) and reorganization expenses 4,978 345 (o) 5,323 803 6,126 Loss on divestitures of assets 122,887 (122,426)(q) 461 461 ----------------------- -------------------------------------- ----------- Operating earnings (loss) (113,928) 134,458 20,530 31,636 (1,000) 51,166 Interest expense, net 11,791 (3,602)(r) 8,189 344 (8,189)(k) 19,994 18,750(l) 900(m) ----------------------- -------------------------------------- ----------- Income (loss) before taxes and minority interest (125,719) 138,060 12,341 31,292 (12,461) 31,172 Income tax provision (benefit) (40,443) 44,352 (s) 3,909 8,513 (1,512)(t) 10,910 Minority interest in loss of consolidated subsidiary 153 (153)(t) - - ----------------------- -------------------------------------- ---------- Net income (loss) $(85,429) $ 93,861 $8,432 $ 22,779 $(10,949) $ 20,262 ======================= ====================================== ========== Basic earnings (loss) per share $ (6.71) $ .66 $ 1.59 Diluted earnings (loss) per share$ (6.71) $ .66 $ 1.59 Weighted average shares outstanding: Basic 12,726 12,726 12,726 Diluted 12,726 12,754 12,754
112 NOTES TO UNAUDITED PRO FORMA CONDENSED CONSOLIDATED FINANCIAL STATEMENTS Balance sheet adjustments: (a) Adjustment to reflect the use of cash on hand to fund a portion of the purchase price of Tilia. Amount is calculated as follows:
Sources of cash: Proceeds from the Offering of the Notes (see Note (h)) $147,654 Proceeds from new credit facility (see note (f) 50,000 ---------------------- Total sources of cash: $197,654 ---------------------- Uses of cash: Purchase price including estimated expenses, net of seller debt (See Note (b) and Note (g)) $ 148,000 Estimated expenses related to the new credit facility (See Note (c)) 2,000 Estimated expenses related to the Offering of the Notes (see Note (c)) 5,000 Repay old credit facility (see note (e)) 57,366 ---------------------- Total uses of cash $ 212,366 ---------------------- ---------------------- NET USE OF CASH ON HAND TO FUND TRANSACTIONS $ 14,712 ----------------------
(b) Adjustment to reflect estimated goodwill to be recorded with the Acquisition calculated as the purchase price plus related expenses ($163 million) related to the Acquisition less the net equity of Tilia and amounts allocated to specifically identifiable intangible assets ($5.0 million). (c) Adjustment to reflect the following: (i.) estimated fair value of Tilia's identifiable intangible assets (primarily patents) of $5.0 million to be amortized over an average five-year life; (ii.) estimated expenses of this offering of $5.0 million to be amortized over the ten-year term of the Senior Subordinated Notes due 2012; and (iii.) estimated expenses of the new senior credit facility of $2.0 million to be amortized over the five-year term. (d) Adjustment to reflect the write-off of remaining debt issue costs relating to Jarden's existing senior credit facility. (e) Adjustment to reflect the repayment of Jarden's existing credit facility in conjunction with the issuance of the new senior credit facility and old notes. (f) Adjustment to reflect the initial borrowing under the new senior credit facility in conjunction with the Acquisition. 113 (g) Adjustment to reflect the subordinated seller notes to be issued in conjunction with the Transactions: (i.) $10.0 million non-interest bearing note due March 31, 2003, and (ii.) $5.0 million note due in 2004. (h) Adjustment to reflect the issuance of the Senior Subordinated Notes due 2012 at 98.436% of par value. (i) Adjustment to reflect the elimination of the existing stockholders' equity of Tilia. Statement of operations adjustments: (j) Adjustment to reflect the amortization of estimated identifiable intangible assets. See note (c)(i) above. (k) Adjustment to reflect the elimination of historical Jarden interest expense. (l) Adjustment to reflect pro forma interest expense relating to: (i.) the new senior credit facility based upon Jarden's 2001 effective borrowing rates for the periods presented; (ii.) the interest bearing subordinated seller note described in note (f)(ii) above based upon Jarden's effective borrowing rates for the periods presented; and (iii.) the 9 3/4% Senior Subordinated Notes due 2012. The annualized effect of a 1/8% change in interest rates would be $81. (m) Adjustment to reflect amortization of debt issue costs for both the new senior credit facility and the Senior Subordinated Notes due 2012. See note (c) above. (n) Adjustment to reflect an effective tax rate of 38%. (o) Adjustment to reflect the elimination of the operating results of the assets of our Triangle, TriEnda and Synergy World divisions. (p) Adjustment to reflect the elimination of the operating results of Microlin, LLC. (q) Adjustment to reflect the elimination of the loss on the Dispositions. Defined. (r) Adjustment to reflect the elimination of interest expense related to the debt repayment resulting from the Tax Refunds. (s) Adjustment to reflect an effective tax rate of 35.0%. (t) Adjustment to reflect the elimination of the minority interest's share in the loss of Microlin, LLC. 114 TALIA INTERNATIONAL, INC. AND SUBSIDIARIES UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS TILIA INTERNATIONAL, INC. AND SUBSIDIARIES UNAUDITED CONDENSED CONSOLIDATED STATEMENT OF OPERATIONS FOR THE THREE MONTHS ENDED MARCH 31, 2002 (dollars in thousands) Net sales........................................... $38,525 Costs and expenses Cost of sales.................................... 19,257 Selling, general and administrative expenses..... 13,458 ------- Operating earnings.................................. 5,810 Interest income, net................................ (52) ------- Income before taxes................................. 5,862 Income tax expense.................................. 1,801 ------- Net income.......................................... $ 4,061 ======= See accompanying notes to unaudited consolidated financial statements. 115 TILIA INTERNATIONAL, INC. AND SUBSIDIARIES UNAUDITED CONDENSED CONSOLIDATED BALANCE SHEET AS OF MARCH 31, 2002 (dollars in thousands) ASSETS Current assets Cash and cash equivalents $ 28,374 Accounts receivable, net 14,945 Inventories, net 18,267 Deferred taxes on income 5,632 Other current assets 4,719 ------- Total current assets 71,937 ------- Property, plant and equipment, net 3,685 Deferred taxes on income 122 Other assets 1,115 ------- Total assets $ 76,859 ======= LIABILITIES AND EQUITY Current liabilities Accounts payable 970 Other current liabilities 14,240 ------- Total current liabilities 15,210 ------- Equity 61,649 -------- Total liabilities and equity $ 76,859 ======== See accompanying notes to unaudited consolidated statements. 116 TILIA INTERNATIONAL, INC. AND SUBSIDIARIES UNAUDITED CONDENSED CONSOLIDATED STATEMENT OF CASH FLOWS FOR THE THREE MONTHS ENDED MARCH 31, 2002 (dollars in thousands) Cash flows from operating activities Net income................................................ $ 4,061 Reconciliation of net income to net cash provided by operating activities: Depreciation and amortization......................... 471 Other, net............................................ (87) Changes in working capital components..................... 5,866 --------- Net cash provided by operating activities............. 10,311 --------- Cash flows from financing activities Proceeds from issuance of common stock................... 22 --------- Net cash used in financing activities.................. 22 --------- Cash flows from investing activities Additions to property, plant and equipment................ (874) --------- Net cash used in investing activities.................. (874) --------- Net increase in cash.......................................... $ 9,459 Cash and cash equivalents, beginning of period................ 18,915 --------- Cash and cash equivalents, end of period...................... $ 28,374 ========= See accompanying notes to unaudited consolidated statements. 117 TILIA INTERNATIONAL, INC. AND SUBSIDIARIES NOTES TO UNAUDITED CONDENSED CONSOLIDATED FINANCIAL STATEMENTS 1. Basis of Presentation Certain information and footnote disclosures, including significant accounting policies normally included in financial statements prepared in accordance with accounting principles generally accepted in the United States, have been condensed or omitted. In the opinion of management, the accompanying unaudited consolidated financial statements include all adjustments necessary for a fair presentation of the results for the interim periods presented. Results of operations for the periods shown are not necessarily indicative of results for the year, particularly in view of the seasonality for home food preservation products. The accompanying unaudited consolidated financial statements should be read in conjunction with the Consolidated Financial Statements and Notes to Consolidated Financial Statements of Tilia International, Inc. and Subsidiaries, incorporated by reference hereto. 2. Subsequent events On April 24, 2002, the business of Tilia International, Inc. and its subsidiaries Tilia, Inc. and Tilia Canada, Inc. (collectively "Tilia"), was acquired by Jarden Corporation (f/k/a Alltrista Corporation) pursuant to an asset purchase agreement (the "Acquisition"). Pursuant to the Acquisition, Tilia was acquired for approximately $145 million in cash and $15 million in seller debt financing. In addition, the Acquisition includes an earn-out provision with a potential payment in cash or Company common stock of up to $25 million payable in 2005, provided that certain earnings performance targets are met. 118 WHERE YOU CAN FIND MORE INFORMATION We are subject to the informational requirements of the Exchange Act, and in accordance therewith we are required to file periodic reports, proxy statements and other information with the Commission. Such reports, proxy statements and other information filed by us can be inspected and copied at the public reference facilities maintained by the Commission at 450 Fifth Street, N.W., Room 1024, Washington, D.C. 20549, as well as the Regional Offices of the Commission at Citicorp Center, 500 West Madison Street, Suite 1400, Chicago, Illinois 60661, at the prescribed rates. The Commission also maintains a site on the World Wide Web that contains reports, proxy and information statements and other information regarding registrants that file electronically. The address of such site is http://www.sec.gov. The telephone number of the Commission is 800-SEC-0330. In addition, similar information can be inspected at the New York Stock Exchange, 20 Broad Street, New York, New York 10005. With respect to the new notes, this prospectus omits certain information that is contained in the registration statement on file with the Commission, of which this prospectus is a part. For further information with respect to us and our new notes, reference is made to the registration statement, including the exhibits incorporated therein by reference or filed therewith. Statements herein contained concerning the provisions of any document are not necessarily complete and, in each instance, reference is made to the copy of such document filed as an exhibit or incorporated by reference to the registration statement. The registration statement and the exhibits may be inspected without charge at the offices of the Commission or copies thereof obtained at prescribed rates from the public reference section of the Commission at the addresses set forth above. You should rely on the information contained in this prospectus and in the registration statement as well as other information you deem relevant. We have not authorized anyone to provide you with information different from that contained in this prospectus. This prospectus is an offer to sell, or a solicitation of offers to buy, securities only in jurisdictions where offers and sales are permitted. The information contained in this prospectus is accurate only as of the date of this prospectus, regardless of the time of delivery of this prospectus or any sale or exchange of securities, however, we have a duty to update that information while this prospectus is in use by you where, among other things, any facts or circumstances arise which, individually or in the aggregate, represent a fundamental change in the information contained in this prospectus or any material information with respect to the plan of distribution was not previously disclosed in the prospectus or there is any material change to such information in the prospectus. This prospectus does not offer to sell or solicit any offer to buy any securities other than the new notes to which it relates, nor does it offer to buy any of these notes in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction. EXPERTS The consolidated financial statements of Jarden Corporation and subsidiaries (formerly "Alltrista Corporation and subsidiaries") appearing in its Annual Report (Form 10-K) for the year ended December 31, 2001, have been audited by Ernst & Young LLP, independent auditors, as set forth in their report thereon included therein and incorporated herein by reference. Such consolidated financial statements are incorporated herein by reference in reliance upon such report given on the authority of such firm as experts in accounting and auditing. 119 The consolidated financial statements of Tilia International, Inc. and its subsidiaries incorporated by reference in this prospectus and elsewhere in the registration statement have been audited by Arthur Andersen LLP, independent public accountants, as indicated in their report with respect thereto. Arthur Andersen LLP has not consented to the inclusion of their report in this prospectus, and we have dispensed with the requirement to file their consent in reliance upon Rule 437a of the Securities Act of 1933. Because Arthur Andersen LLP has not consented to the inclusion of their report in this prospectus, you will not be able to recover against Arthur Andersen LLP under Section 11 of the Securities Act for any untrue statements of a material fact contained in the financial statements audited by Arthur Andersen LLP or any omissions to state a material fact required to be stated therein. LEGAL MATTERS The validity of the new notes to be issued pursuant to the exchange offer will be passed upon for us by Kane Kessler, P.C., New York, New York. 120 - ------------------------------------------------------------------------------- JARDEN CORPORATION OFFER TO EXCHANGE $150,000,000 PRINCIPAL AMOUNT OF OUR 9 3/4% SENIOR SUBORDINATED NOTES DUE 2012, WHICH HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, FOR ANY AND ALL OF OUR OUTSTANDING 9 3/4% SENIOR SUBORDINATED NOTES DUE 2012 UNCONDITIONALLY GUARANTEED BY: ALLTRISTA NEWCO CORPORATION, ALLTRISTA PLASTICS CORPORATION, ALLTRISTA UNIMARK, INC., ALLTRISTA ZINC PRODUCTS, L.P., CASPERS TIN PLATE COMPANY, HEARTHMARK, INC., LAFAYETTE STEEL & ALUMINUM CORPORATION, LUMENX CORPORATION, PENN VIDEO, INC., QUOIN CORPORATION, TILIA, INC., TILIA DIRECT, INC., TILIA INTERNATIONAL, INC., TRIENDA CORPORATION, UNIMARK PLASTICS, INC. ------------------------ PROSPECTUS ------------------------ ___________ __, 2002 UNTIL , ALL DEALERS THAT EFFECT TRANSACTIONS IN THESE SECURITIES, WHETHER OR NOT PARTICIPATING IN THIS OFFERING, MAY BE REQUIRED TO DELIVER A PROSPECTUS. THIS IS IN ADDITION TO THE DEALERS' OBLIGATION TO DELIVER A PROSPECTUS WHEN ACTING AS UNDERWRITERS. - ------------------------------------------------------------------------------- 121 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 20. INDEMNIFICATION OF DIRECTORS AND OFFICERS Under Section 145 of the Delaware General Corporation Law ("DGCL"), a corporation may indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that he or she is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such action, suit or proceeding (i) if such person acted in good faith and in a manner that person reasonably believed to be in or not opposed to the best interests of the corporation and (ii) with respect to any criminal action or proceeding, if he or she had no reasonable cause to believe such conduct was unlawful. In actions brought by or in the right of the corporation, a corporation may indemnify such person against expenses (including attorneys' fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit if such person acted in good faith and in a manner that person reasonably believed to be in or not opposed to the best interests of the corporation, except that no indemnification may be made in respect of any claim, issue or matter as to which that person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery of the State of Delaware or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnification for such expenses which the Court of Chancery or other such court shall deem proper. To the extent that such person has been successful on the merits or otherwise in defending any such action, suit or proceeding referred to above or any claim issue or matter therein, he or she is entitled to indemnification for expenses (including attorneys' fees) actually and reasonably incurred by such person in connection therewith. The indemnification and advancement of expenses provided for or granted pursuant to Section 145 is not exclusive of any other rights of indemnification or advancement of expenses to which those seeking indemnification or advancement of expenses may be entitled, and a corporation may purchase and maintain insurance against liabilities asserted against any former or current director, officer, employee or agent of the corporation, or a person who is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, whether or not the power to indemnify is provided by the statute. Article VII, Section B of Jarden's Restated Certificate of Incorporation, as amended, provides the following: 1. Jc arden shall indemnify each person who is or was a director, officer or employee of Jarden, or of any other corporation, partnership, joint venture, trust or other enterprise which he is serving or served in any capacity at the request of Jarden, against any and all liability and reasonable expense that may be incurred by him in connection with 122 or resulting from any claim, actions, suit or proceeding (whether actual or threatened, brought by or in the right of Jarden or such other corporation, partnership, joint venture, trust or other enterprise, or otherwise, civil, criminal, administrative, investigative, or in connection with an appeal relating thereto), in which he may become involved, as a party or otherwise, by reason of his being or having been a director, officer or employee of Jarden or of such other corporation, partnership, joint venture, trust or other enterprise or by reason of any past or future action taken or not taken in his capacity as such director, officer or employee, whether or not he continues to be such at the time such liability or expense is incurred, provided that a determination is made by Jarden in accordance with Delaware law that such person acted in good faith and in a manner he reasonably believed to be in the best interests of Jarden or at least not opposed to the best interests of such other corporation, partnership, joint venture, trust or other enterprise, as the case may be, and, in addition, in any criminal action or proceedings, had reasonable cause to believe his conduct was lawful or no reasonable cause to believe that his conduct was unlawful. The termination of a proceeding by judgment, order, settlement, conviction or upon a plea of nolo contendere or its equivalent is not, of itself, determinative that the person did not meet the standard of conduct described in the previous sentence. Notwithstanding the foregoing, there shall be no indemnification (a) as to amounts paid or payable to Jarden or such other corporation, partnership, joint venture, trust or other enterprise, as the case may be, for or based upon the director, officer or employee having gained in fact any personal profit or advantage to which he was not legally entitled; (b) as to amounts paid or payable to Jarden for an accounting of profits in fact made from the purchase or sale of securities of Jarden within the meaning of Section 16(b) of the Exchange Act and amendments thereto or similar provisions of any state statutory law; or (c) with respect to matters as to which indemnification would be in contravention of the laws of the State of Delaware or of the United States of America whether as a matter of public policy or pursuant to statutory provisions. 2. Any such director, officer or employee who has been wholly successful, on the merits or otherwise, with respect to any claim, action, suit or proceeding of the character described herein shall be entitled to indemnification as of right, except to the extent he has otherwise been indemnified. Except as provided in the preceding sentence, any indemnification hereunder shall be granted by Jarden, but only if (a) the Board of Directors of Jarden, acting by a quorum consisting of directors who are not partners to or who have been wholly successful with respect to such claim, action, suit or proceeding, shall find that the director, officer or employee has met the applicable standards of conduct set forth in paragraph 1 of this Section B of Article VII; or (b) outside legal counsel engaged by Jarden (who may be regular counsel of Jarden) shall deliver to Jarden its written opinion that such director, officer or employee has met such applicable standards of conduct; or (c) a court of competent jurisdiction has determined that such director, officer or employee has met such standards, in an action brought either by Jarden, or by the director, officer or employee seeking indemnification, applying de novo such applicable standards of conduct. The termination of any claim, action, suit or proceeding, civil or criminal, by judgment, settlement (whether with or without court approval) or conviction or upon a plea of guilty or of nolo contendere, or its equivalent, shall not create a presumption that a 123 director, officer or employee did not meet the applicable standards of conduct set forth in paragraph 1 of this Section B of Article VII. 3. As used in this Section B of Article VII, the term "liability" shall mean amounts paid in settlement or in satisfaction of judgments of fines or penalties, and the term "expense" shall include, but not be limited to, attorneys' fees and disbursements, incurred in connection with the claim, action, suit or proceeding. Jarden may advance expenses to, or where appropriate may at its option and expense undertake the defense of, any such director, officer or employee upon receipt of an undertaking by or on behalf of such person to repay such expenses if it should ultimately be determined that the person is not entitled to indemnification under this Section B of Article VII. 4. The provisions of this Section B of Article VII shall be applicable to claims, actions, suits or proceedings made or commenced after the adoption hereof, whether arising from acts or omissions to act occurring before or after the adoption hereof. If several claims, issues or matters of action are involved, any such director, officer or employee may be entitled to indemnification as to some matters even though he is not so entitled as to others. The rights of indemnification provided hereunder shall be in addition to any rights to which any director, officer or employee concerned may otherwise be entitled by contract or as a matter of law, and shall inure to the benefit of the heirs, executors and administrators of any such director, officer or employee. Any repeal or modification of the provisions of this Section B of Article VII by the stockholders of Jarden shall not adversely affect any rights to indemnification and advancement of expenses existing pursuant to this Section B of Article VII with respect to any acts or omissions occurring prior to such repeal or modification. The directors and officers of Jarden are insured (subject to certain exceptions and deductions) against liabilities which they may incur in their capacity as such including liabilities under the Securities Act, under liability insurance policies carried by Jarden. ITEM 21. EXHIBITS
Exhibit Description ------- ----------- 1.1 Purchase Agreement, dated as of April 10, 2002, Jarden, the Domestic Subsidiaries, and Banc of America Securities LLC, CIBC World Markets Corp., and NatCity Investments, Inc., as representatives of the several initial purchasers (filed as Exhibit 10.12 to Jarden's Current Report on Form 8-K, filed with the Commission on May 9, 2002 and incorporated herein by reference). 3.1 Restated Certificate of Incorporation of Jarden Corporation (filed as Exhibit 3.1 to Jarden's Annual Report on Form 10-K, filed with the Commission on March 27, 2002 and incorporated herein by reference). 3.2 Certificate of Amendment of Restated Certificate of Incorporation of Jarden Corporation (filed as Exhibit 3.2 to Jarden's Current Report on Form 8-K, filed with the Commission on June 4, 2002 and incorporated herein by reference). 3.3 Bylaws of Jarden Corporation (filed as Exhibit C to Jarden's Definitive Proxy Statement, filed with the Commission on November 26, 2001 and incorporated herein by reference). 3.4 Articles of Incorporation of Alltrista Newco Corporation. (2) 3.5 Bylaws of Alltrista Newco Corporation. (2) 3.6 Amendment to Bylaws of Alltrista Newco Corporation. (2) 3.7 Articles of Incorporation of Alltrista Plastics Corporation. (2) 3.8 Bylaws of Alltrista Plastics Corporation. (2) 3.9 Amendment to Bylaws of Alltrista Plastics Corporation. (2) 3.10 Articles of Incorporation of Alltrista Unimark, Inc. (2) 3.11 Articles of Amendment of Articles of Incorporation of Alltrista Unimark, Inc. (2) 3.12 Bylaws of Alltrista Unimark, Inc. (2) 3.13 Certificate of Limited Partnership of Alltrista Zinc Products, L.P. (2) 3.14 Agreement of Limited Partnership of Alltrista Zinc Products, L.P. (2) 3.15 Articles of Incorporation of Caspers Tin Plate Company. (2) 3.16 Bylaws of Caspers Tin Plate Company. (2) 3.17 Articles of Incorporation of Hearthmark, Inc. (2) 124 Exhibit Description ------- ----------- 3.18 Bylaws of Hearthmark, Inc. (2) 3.19 Amendment to Bylaws of Hearthmark, Inc. (2) 3.20 Articles of Incorporation of Lafayette Steel & Aluminum Corporation. (2) 3.21 Bylaws of Lafayette Steel & Aluminum Corporation. (2) 3.22 Articles of Incorporation of LumenX Corporation. (2) 3.23 Bylaws of LumenX Corporation. (2) 3.24 Articles of Incorporation of Penn Video, Inc. (2) 3.25 Bylaws of Penn Video, Inc. (2) 3.26 Certificate of Incorporation of Quoin Corporation. (2) 3.27 Certificate of Correction to the Certificate of Incorporation of Quoin Corporation. (2) 3.28 Bylaws of Quoin Corporation. (2) 3.29 Certificate of Incorporation of Tilia, Inc. (2) 3.30 Certificate of Amendment of Certificate of Incorporation of Tilia, Inc. (2) 3.31 Bylaws of Tilia, Inc. (2) 3.32 Certificate of Incorporation of Tilia Direct, Inc. (2) 3.33 Certificate of Amendment of Certificate of Incorporation of Tilia Direct, Inc. (2) 3.34 Bylaws of Tilia Direct, Inc. (2) 3.35 Certificate of Incorporation of Tilia International, Inc. (2) 3.36 Certificate of Amendment of Certificate of Incorporation of Tilia International, Inc. (2) 3.37 Bylaws of Tilia International, Inc. (2) 3.38 Articles of Incorporation of TriEnda Corporation. (2) 3.39 Articles of Amendment of Articles of Incorporation of TriEnda Corporation. (2) 3.40 Bylaws of TriEnda Corporation. (2) 3.41 Articles of Incorporation of Unimark Plastics, Inc. (2) 125 Exhibit Description ------- ----------- 3.42 Articles of Amendment of Articles of Incorporation of Unimark Plastics, Inc. (2) 3.43 Bylaws of Unimark Plastics, Inc. (2) 4.1 Indenture, dated as of April 24, 2002, among Jarden, its Domestic Subsidiaries, and The Bank of New York, as trustee, and form of Old Note attached as Exhibit A thereto (filed as Exhibit 4.1 to Jarden's Current Report on Form 8-K, filed with the Commission on May 9, 2002 and incorporated herein by reference). 4.2 Registration Rights Agreement, dated as of April 24, 2002, among Jarden, the Domestic Subsidiaries, and Banc of America Securities LLC, CIBC World Markets Corp., and NatCity Investments, Inc., a representatives of the several initial purchasers (filed as Exhibit 10.13 to Jarden's Current Report on Form 8-K, filed with the Commission on May 9, 2002 and incorporated herein by reference). 4.3 Form of the new 9 3/4% Senior Subordinated Notes Due 2012. (1) 5.1 Form of Opinion of Kane Kessler, P.C. (2)(3) 10.1 Credit Agreement, dated as of April 24, 2002, among Jarden, Bank of America, N.A., as Administrative Agent, Swing Line Lender, and L/C Issuer, Canadian Imperial Bank of Commerce, as Syndication Agent, National City Bank of Indiana, as Documentation Agent, and the other Lenders party thereto, including The Bank of New York, Fleet National Bank, Harris Trust and Savings Bank, U.S. Bank National Association, Allfirst Bank, Transamerica Business Capital Corporation, and Union Federal Bank of Indianapolis (filed as Exhibit 10.1 to Jarden's Current Report on Form 8-K, filed with the Commission on May 9, 2002 and incorporated herein by reference). 10.2 Guaranty Agreement, dated as of April 24, 2002, by the Domestic Subsidiaries to Bank of America, NA., as administrative agent (filed as Exhibit 10.2 to Jarden's Current Report on Form 8-K, filed with the Commission on May 9, 2002 and incorporated herein by reference). 10.3 Security Agreement, dated as of April 24, 2002, among Jarden, the Domestic Subsidiaries, and Bank of America, N.A., as administrative agent (filed as Exhibit 10.3 to Jarden's Current Report on Form 8-K, filed with the Commission on May 9, 2002 and incorporated herein by reference). 10.4 Intellectual Property Security Agreement, dated as of April 24, 2002, among Jarden, the Domestic Subsidiaries and Bank of America, N.A., as administrative agent (filed as Exhibit 10.4 to Jarden's Current Report on Form 8-K, filed with the Commission on May 9, 2002 and incorporated herein by reference). 126 Exhibit Description ------- ----------- 10.5 Securities Pledge Agreement, dated as of April 24, 2002, among Jarden, Quoin Corporation, Alltrista Newco Corporation, Caspers Tin Plate Company, and Bank of America, NA., as administrative agent (filed as Exhibit 10.5 to Jarden's Current Report on Form 8-K, filed with the Commission on May 9, 2002 and incorporated herein by reference). 12.1 Statement of Computation of Ratio of Earnings to Fixed Charges. (2) 23.1 Consent of Ernst & Young LLP. (2) 23.2 Consent of Kane Kessler, P.C. (included in Exhibit 5.1). (1) 24.1 Powers of Attorney (See signature pages of this registration statement). (1) 25.1 Statement of Eligibility under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee on Form T-1, relating to The Bank of New York. (1) 99.1 Form of Letter to Depository Trust Company Participants. (1) 99.2 Form of Letter of Transmittal. (1) 99.3 Form of Notice of Guaranteed Delivery. (1) 99.4 Form of Instruction to Book-Entry Transfer Participant. (1) 99.5 Form of Letter to Clients. (1) 99.6 Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. (1) 99.7 Form of Exchange Agent Agreement. (1)
(1) Incorporated by reference to the Form S-4 filed by Jarden on June 5, 2002. (2) Filed herewith. (3) Executed copy to be filed by amendment. 127 ITEM 22. UNDERTAKINGS A. The undersigned registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by Section 10(a)(3) of the Securities Act; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (a)(i) and (a)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed by Jarden pursuant to Section 13 128 or Section 15(d) of the Exchange Act that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. B. The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of Jarden's annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. C. Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of Jarden pursuant to the foregoing provisions, or otherwise, Jarden has been advised that in the opinion of the Commission such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by Jarden of expenses incurred or paid by a director, officer or controlling person of Jarden in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, Jarden will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue. D. The undersigned registrant hereby undertakes that to respond to requests for information that is incorporated by reference into the prospectus pursuant to items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request. E. The undersigned registrant hereby undertakes that to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired therein, that was not the subject of an included in the registration statement when it became effective. 129 SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rye, State of New York, on July 18, 2002. JARDEN CORPORATION By: /s/ Ian G.H. Ashken ------------------------------------- Name: Ian G.H. Ashken Title: Vice Chairman, Chief Financial Officer, and Secretary Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated: Name Title Date ---- ----- ---- * Chairman and Chief Executive July 18, 2002 - ------------------------- Officer (Principal Executive Martin E. Franklin Officer) /s/ Ian G. H. Ashken Vice Chairman, Chief Financial July 18, 2002 - ------------------------- Officer and Secretary (Principal Ian G. H. Ashken Financial Officer and Principal Accounting Officer) * - ------------------------- Director July 18, 2002 Irwin D. Simon - ------------------------- Director July __, 2002 Richard L. Molen * - ------------------------- Director July 18, 2002 David L. Swift * - ------------------------- Director July 18, 2002 Robert L. Wood - ------------------------- Director July __, 2002 Lynda W. Popwell * - ------------------------- Director July 18, 2002 Douglas W. Huemme * By: Ian G.H. Ashken ------------------- Ian G.H. Ashken as Attorney-in-fact SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rye, State of New York, on July 18, 2002. ALLTRISTA NEWCO CORPORATION By: /s/ Ian G.H. Ashken ----------------------------------- Name: Ian G.H. Ashken Title: Treasurer and Secretary Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated: Name Title Date ---- ----- ---- * Director and President July 18, 2002 - ------------------------------ Martin E. Franklin /s/ Ian G. H. Ashken Director, Secretary, and July 18, 2002 - ------------------------------ Treasurer Ian G. H. Ashken * By: /s/ Ian G.H. Ashken --------------------- Ian G.H. Ashken as Attorney-in-fact SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rye, State of New York, on July 18, 2002. ALLTRISTA PLASTICS CORPORATION By: /s/ Ian G.H. Ashken ----------------------------------- Name: Ian G.H. Ashken Title: Treasurer and Secretary Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated: Name Title Date ---- ----- ---- * Director and President July 18, 2002 - -------------------------------- Martin E. Franklin /s/ Ian G. H. Ashken Director, Secretary, and July 18, 2002 - -------------------------------- Treasurer Ian G. H. Ashken * By: /s/ Ian G. H. Ashken ----------------------- Ian G.H. Ashken as Attorney-in-fact SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rye, State of New York, on July 18, 2002. ALLTRISTA UNIMARK, INC. By: /s/ Ian G. H. Ashken ---------------------------------- Name: Ian G.H. Ashken Title: Treasurer and Secretary Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated: Name Title Date ---- ----- ---- * Director and President July 18, 2002 - ----------------------------- Martin E. Franklin /s/ Ian G.H. Ashken Director, Secretary, and July 18, 2002 - ----------------------------- Treasurer Ian G. H. Ashken * By: /s/ Ian G.H. Ashken -------------------- Ian G.H. Ashken as Attorney-in-fact SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rye, State of New York, on July 18, 2002. ALLTRISTA ZINC PRODUCTS, L.P. By: Alltrista Newco Corporation By: /s/ Ian G.H. Ashken -------------------------------- Name: Ian G.H. Ashken Title: Treasurer and Secretary Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated: Name Title Date ---- ----- ---- /s/ Ian G.H. Ashken Treasurer and Secretary of July 18, 2002 - ------------------------------ Alltrista Zinc Products, L.P., Ian G.H. Ashken General Partner SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rye, State of New York, on July 18, 2002. CASPERS TIN PLATE COMPANY By: /s/ Ian G.H. Ashken ------------------------------------ Name: Ian G.H. Ashken Title: Treasurer and Secretary Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated: Name Title Date ---- ----- ---- * Director and President July 18, 2002 - ----------------------------------- Martin E. Franklin /s/ Ian G.H. Ashken Director, Secretary, and July 18, 2002 - ----------------------------------- Treasurer Ian G. H. Ashken * By: /s/ Ian G.H. Ashken -------------------------- Ian G.H. Ashken as Attorney-in-fact SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rye, State of New York, on July 18, 2002. HEARTHMARK, INC. By: /s/ Ian G.H. Ashken ------------------------------------ Name: Ian G.H. Ashken Title: Treasurer and Secretary Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated: Name Title Date ---- ----- ---- * Director and President July 18, 2002 - ------------------------------- Martin E. Franklin /s/ Ian G.H. Ashken Director, Secretary, and July 18, 2002 - ------------------------------- Treasurer Ian G. H. Ashken * By: /s/ Ian G.H. Ashken ---------------------- Ian G.H. Ashken as Attorney-in-fact SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rye, State of New York, on July 18, 2002. LAFAYETTE STEEL & ALUMINUM CORPORATION By: /s/ Ian G.H. Ashken ----------------------------------- Name: Ian G.H. Ashken Title: Treasurer and Secretary Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated: Name Title Date ---- ----- ---- * Director and President July 18, 2002 - ------------------------------ Martin E. Franklin /s/ Ian G.H. Ashken Director, Secretary, and July 18, 2002 - ------------------------------ Treasurer Ian G. H. Ashken * By: /s/ Ian G.H. Ashken --------------------- Ian G.H. Ashken as Attorney-in-fact SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rye, State of New York, on July 18, 2002. LUMENX CORPORATION By: /s/ Ian G.H. Ashken -------------------------------------- Name: Ian G.H. Ashken Title: Treasurer and Secretary Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated: Name Title Date ---- ----- ---- * Director and President July 18, 2002 - ------------------------------- Martin E. Franklin /s/ Ian G.H. Ashken Director, Secretary, and July 18, 2002 - ------------------------------- Treasurer Ian G. H. Ashken * By: /s/ Ian G.H. Ashken ---------------------- Ian G.H. Ashken as Attorney-in-fact SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rye, State of New York, on July 18, 2002. PENN VIDEO, INC. By: /s/ Ian G.H. Ashken ------------------------------------- Name: Ian G.H. Ashken Title: Treasurer and Secretary Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated: Name Title Date ---- ----- ---- * Director and President July 18, 2002 - ------------------------------- Martin E. Franklin /s/ Ian G.H. Ashken Director, Secretary, and July 18, 2002 - ------------------------------- Treasurer Ian G. H. Ashken * By: /s/ Ian G.H. Ashken --------------------- Ian G.H. Ashken as Attorney-in-fact SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rye, State of New York, on July 18, 2002. QUOIN CORPORATION By: /s/ Ian G.H. Ashken ------------------------------------ Name: Ian G.H. Ashken Title: Treasurer Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated: Name Title Date ---- ----- ---- * Director and President July 18, 2002 - ------------------------------ Monte L. Miller /s/ Ian G.H. Ashken Director and Treasurer July 18, 2002 - ------------------------------ Ian G. H. Ashken * By: /s/ Ian G.H. Ashken --------------------- Ian G.H. Ashken as Attorney-in-fact SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rye, State of New York, on July 18, 2002. TILIA, INC. By: /s/ Ian G.H. Ashken ------------------------------------- Name: Ian G.H. Ashken Title: Treasurer and Secretary Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated: Name Title Date ---- ----- ---- * Director and President July 18, 2002 - ------------------------------ Martin E. Franklin /s/ Ian G.H. Ashken Director, Secretary, and July 18, 2002 - ------------------------------ Treasurer Ian G. H. Ashken * By: /s/ Ian G.H. Ashken --------------------- Ian G.H. Ashken as Attorney-in-fact SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rye, State of New York, on July 18, 2002. TILIA DIRECT, INC. By: /s/ Ian G.H. Ashken ------------------------------------ Name: Ian G.H. Ashken Title: Treasurer and Secretary Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated: Name Title Date ---- ----- ---- * Director and President July 18, 2002 - ------------------------------ Martin E. Franklin /s/ Ian G.H. Ashken Director, Secretary, and July 18, 2002 - ------------------------------ Treasurer Ian G. H. Ashken * By: /s/ Ian G.H. Ashken --------------------- Ian G.H. Ashken as Attorney-in-fact SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rye, State of New York, on July 18, 2002. TILIA INTERNATIONAL, INC. By: /s/ Ian G.H. Ashken ----------------------------------- Name: Ian G.H. Ashken Title: Treasurer and Secretary Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated: Name Title Date ---- ----- ---- * Director and President July 18, 2002 - ------------------------------ Martin E. Franklin /s/ Ian G. H. Ashken Director, Secretary, and July 18, 2002 - ------------------------------ Treasurer Ian G. H. Ashken * By: /s/ Ian G. H. Ashken --------------------- Ian G.H. Ashken as Attorney-in-fact SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rye, State of New York, on July 18, 2002. TRIENDA CORPORATION By: /s/ Ian G.H. Ashken ------------------------------------ Name: Ian G.H. Ashken Title: Treasurer and Secretary Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated: Name Title Date ---- ----- ---- * Director and President July 18, 2002 - ------------------------------ Martin E. Franklin /s/ Ian G. H. Ashken Director, Secretary, and July 18, 2002 - ------------------------------ Treasurer Ian G. H. Ashken * By: /s/ Ian G. H. Ashken --------------------- Ian G.H. Ashken as Attorney-in-fact SIGNATURES Pursuant to the requirements of the Securities Act, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Rye, State of New York, on July 18, 2002. UNIMARK PLASTICS, INC. By: /s/ Ian G.H. Ashken ----------------------------------- Name: Ian G.H. Ashken Title: Treasurer and Secretary Pursuant to the requirements of the Securities Act of 1933, as amended, this registration statement has been signed by the following persons in the capacities and on the dates indicated: Name Title Date ---- ----- ---- * Director and President July 18, 2002 - ------------------------------- Martin E. Franklin /s/ Ian G. H. Ashken Director, Secretary, and July 18, 2002 - ------------------------------- Treasurer Ian G. H. Ashken * By: /s/ Ian G. H. Ashken ---------------------- Ian G.H. Ashken as Attorney-in-fact EXHIBIT INDEX
Exhibit Description ------- ----------- 1.1 Purchase Agreement, dated as of April 10, 2002, Jarden, the Domestic Subsidiaries, and Banc of America Securities LLC, CIBC World Markets Corp., and NatCity Investments, Inc., as representatives of the several initial purchasers (filed as Exhibit 10.12 to Jarden's Current Report on Form 8-K, filed with the Commission on May 9, 2002 and incorporated herein by reference). 3.1 Restated Certificate of Incorporation of Jarden Corporation (filed as Exhibit 3.1 to Jarden's Annual Report on Form 10-K, filed with the Commission on March 27, 2002 and incorporated herein by reference). 3.2 Certificate of Amendment of Restated Certificate of Incorporation of Jarden Corporation (filed as Exhibit 3.2 to Jarden's Current Report on Form 8-K, filed with the Commission on June 4, 2002 and incorporated herein by reference). 3.3 Bylaws of Jarden Corporation (filed as Exhibit C to Jarden's Definitive Proxy Statement, filed with the Commission on November 26, 2001 and incorporated herein by reference). 3.4 Articles of Incorporation of Alltrista Newco Corporation. (2) 3.5 Bylaws of Alltrista Newco Corporation. (2) 3.6 Amendment to Bylaws of Alltrista Newco Corporation. (2) 3.7 Articles of Incorporation of Alltrista Plastics Corporation. (2) 3.8 Bylaws of Alltrista Plastics Corporation. (2) 3.9 Amendment to Bylaws of Alltrista Plastics Corporation. (2) 3.10 Articles of Incorporation of Alltrista Unimark, Inc. (2) 3.11 Articles of Amendment of Articles of Incorporation of Alltrista Unimark, Inc. (2) 3.12 Bylaws of Alltrista Unimark, Inc. (2) 3.13 Certificate of Limited Partnership of Alltrista Zinc Products, L.P. (2) 3.14 Agreement of Limited Partnership of Alltrista Zinc Products, L.P. (2) 3.15 Articles of Incorporation of Caspers Tin Plate Company. (2) 3.16 Bylaws of Caspers Tin Plate Company. (2) 3.17 Articles of Incorporation of Hearthmark, Inc. (2) Exhibit Description ------- ----------- 3.18 Bylaws of Hearthmark, Inc. (2) 3.19 Amendment to Bylaws of Hearthmark, Inc. (2) 3.20 Articles of Incorporation of Lafayette Steel & Aluminum Corporation. (2) 3.21 Bylaws of Lafayette Steel & Aluminum Corporation. (2) 3.22 Articles of Incorporation of LumenX Corporation. (2) 3.23 Bylaws of LumenX Corporation. (2) 3.24 Articles of Incorporation of Penn Video, Inc. (2) 3.25 Bylaws of Penn Video, Inc. (2) 3.26 Certificate of Incorporation of Quoin Corporation. (2) 3.27 Certificate of Correction to the Certificate of Incorporation of Quoin Corporation. (2) 3.28 Bylaws of Quoin Corporation. (2) 3.29 Certificate of Incorporation of Tilia, Inc. (2) 3.30 Certificate of Amendment of Certificate of Incorporation of Tilia, Inc. (2) 3.31 Bylaws of Tilia, Inc. (2) 3.32 Certificate of Incorporation of Tilia Direct, Inc. (2) 3.33 Certificate of Amendment of Certificate of Incorporation of Tilia Direct, Inc. (2) 3.34 Bylaws of Tilia Direct, Inc. (2) 3.35 Certificate of Incorporation of Tilia International, Inc. (2) 3.36 Certificate of Amendment of Certificate of Incorporation of Tilia International, Inc. (2) 3.37 Bylaws of Tilia International, Inc. (2) 3.38 Articles of Incorporation of TriEnda Corporation. (2) 3.39 Articles of Amendment of Articles of Incorporation of TriEnda Corporation. (2) 3.40 Bylaws of TriEnda Corporation. (2) 3.41 Articles of Incorporation of Unimark Plastics, Inc. (2) Exhibit Description ------- ----------- 3.42 Articles of Amendment of Articles of Incorporation of Unimark Plastics, Inc. (2) 3.43 Bylaws of Unimark Plastics, Inc. (2) 4.1 Indenture, dated as of April 24, 2002, among Jarden, its Domestic Subsidiaries, and The Bank of New York, as trustee, and form of Old Note attached as Exhibit A thereto (filed as Exhibit 4.1 to Jarden's Current Report on Form 8-K, filed with the Commission on May 9, 2002 and incorporated herein by reference). 4.2 Registration Rights Agreement, dated as of April 24, 2002, among Jarden, the Domestic Subsidiaries, and Banc of America Securities LLC, CIBC World Markets Corp., and NatCity Investments, Inc., a representatives of the several initial purchasers (filed as Exhibit 10.13 to Jarden's Current Report on Form 8-K, filed with the Commission on May 9, 2002 and incorporated herein by reference). 4.3 Form of the new 9 3/4% Senior Subordinated Notes Due 2012. (1) 5.1 Form of Opinion of Kane Kessler, P.C. (2)(3) 10.1 Credit Agreement, dated as of April 24, 2002, among Jarden, Bank of America, N.A., as Administrative Agent, Swing Line Lender, and L/C Issuer, Canadian Imperial Bank of Commerce, as Syndication Agent, National City Bank of Indiana, as Documentation Agent, and the other Lenders party thereto, including The Bank of New York, Fleet National Bank, Harris Trust and Savings Bank, U.S. Bank National Association, Allfirst Bank, Transamerica Business Capital Corporation, and Union Federal Bank of Indianapolis (filed as Exhibit 10.1 to Jarden's Current Report on Form 8-K, filed with the Commission on May 9, 2002 and incorporated herein by reference). 10.2 Guaranty Agreement, dated as of April 24, 2002, by the Domestic Subsidiaries to Bank of America, NA., as administrative agent (filed as Exhibit 10.2 to Jarden's Current Report on Form 8-K, filed with the Commission on May 9, 2002 and incorporated herein by reference). 10.3 Security Agreement, dated as of April 24, 2002, among Jarden, the Domestic Subsidiaries, and Bank of America, N.A., as administrative agent (filed as Exhibit 10.3 to Jarden's Current Report on Form 8-K, filed with the Commission on May 9, 2002 and incorporated herein by reference). 10.4 Intellectual Property Security Agreement, dated as of April 24, 2002, among Jarden, the Domestic Subsidiaries and Bank of America, N.A., as administrative agent (filed as Exhibit 10.4 to Jarden's Current Report on Form 8-K, filed with the Commission on May 9, 2002 and incorporated herein by reference). Exhibit Description ------- ----------- 10.5 Securities Pledge Agreement, dated as of April 24, 2002, among Jarden, Quoin Corporation, Alltrista Newco Corporation, Caspers Tin Plate Company, and Bank of America, NA., as administrative agent (filed as Exhibit 10.5 to Jarden's Current Report on Form 8-K, filed with the Commission on May 9, 2002 and incorporated herein by reference). 12.1 Statement of Computation of Ratio of Earnings to Fixed Charges. (2) 23.1 Consent of Ernst & Young LLP. (2) 23.2 Consent of Kane Kessler, P.C. (included in Exhibit 5.1). (1) 24.1 Powers of Attorney (See signature pages of this registration statement). (1) 25.1 Statement of Eligibility under the Trust Indenture Act of 1939 of a Corporation Designated to Act as Trustee on Form T-1, relating to The Bank of New York. (1) 99.1 Form of Letter to Depository Trust Company Participants. (1) 99.2 Form of Letter of Transmittal. (1) 99.3 Form of Notice of Guaranteed Delivery. (1) 99.4 Form of Instruction to Book-Entry Transfer Participant. (1) 99.5 Form of Letter to Clients. (1) 99.6 Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9. (1) 99.7 Form of Exchange Agent Agreement. (1)
(1) Incorporated by reference to the Form S-4 filed by Jarden on June 5, 2002. (2) Filed herewith. (3) Executed copy to be filed by amendment. EX-3.4 3 file002.txt ARTICLES OF INCORPORATION ARTICLES OF INCORPORATION OF ALLTRISTA NEWCO CORPORATION The undersigned incorporator, Timothy J. Bender, desiring to form a corporation (the "Corporation") pursuant to the provisions of the Indiana Business Corporation Law (the "Act"), executes the following Articles of Incorporation. ARTICLE I Name The name of the Corporation is Alltrista Newco Corporation. ARTICLE II Purposes and Powers The Corporation is formed for the following purposes and shall have the following powers: 1. To acquire, own, hold, use, lease, mortgage, pledge, give as security, sell, convey, or otherwise dispose of property, real and personal, tangible and intangible, and any interests or rights therein, and commodities of every kind, character and description whatsoever and any interests therein. 2. To acquire, guarantee, hold, own and vote, and to sell, assign, transfer, mortgage, pledge or otherwise dispose of or deal in the shares, bonds, securities or evidences of indebtedness of any other corporations, associations, partnerships, individuals, or other entities, domestic or foreign, for whatever purpose or purposes formed or operated, or direct or indirect obligations of the United States or of any government, state, territory, governmental district or municipality or of any instrumentality thereof. 3. To apply for, obtain, register, purchase, lease or otherwise acquire letters patent of the United States or of any foreign country, permits, concessions, patent rights, licenses, privileges, inventions, improvements, processes, copyrights, trademarks and trade names; to grant licenses thereunder and to sell, assign, lease, pledge, mortgage, transfer or otherwise deal in or dispose of, any such letters patent, patent rights, licenses, privileges, inventions, improvements, processes, copyrights, trademarks and trade names. 4. To make contracts, guaranties and incur liabilities, borrow money at such rates of interest as the Corporation may determine, issue its notes, bonds and other obligations, and secure any of its obligations by mortgage or pledge of any or all of its properties, franchise and income. 5. To conduct business in this state, and elsewhere; to have one or more offices in or out of this State; and to acquire, own, hold and use, and to lease, mortgage, pledge, sell, convey or otherwise dispose of property, real and personal, tangible and intangible, or any interests or rights therein, out of this State. 6. To enter into any lawful arrangements for sharing profits, partnership, union of interests, reciprocal association, or cooperative association with any corporation, association, partnership, individual, or other legal entity, for the carrying on of any business or transaction deemed necessary, convenient, or incidental to the carrying out any of the purposes of the corporation. 7. To appoint such officers and agents and to hire such employees as the business of the Corporation may require, and to define their duties and fix their compensation. 8. To pay pensions and establish pension plans, pension trusts, profit sharing and retirement plans, stock bonus plans for all of its directors, officers and employees. 9. To transact all business incidental to or connected with any of the foregoing provisions. 10. To have the capacity to act possessed by natural persons, and in general to carry on any other lawful business whatsoever in connection with the foregoing, or which is calculated, directly or indirectly, to promote the interest of the Corporation, or to enhance the value of its properties, and to have and exercise all the rights, powers and privileges which are now or may hereinafter be conferred by the laws of Indiana upon corporations, except as expressly limited by the Act under which this corporation is formed. 11. To lend money to corporations, associations, partnerships, individuals, and other legal entities, including employees of the Corporation or its subsidiaries, to take and hold any property as security for the payment of funds so loaned; but to make no advancement on account of services to be performed in the future or any loan to any officer or director of the Corporation unless in compliance with the provisions of the Act. 12. To make contributions out of the gross income of the Corporation to such entities, and for anyone or more of such purposes, as the Directors may reasonably believe will constitute such contributions deducted from such gross income in computing the net income of the Corporation subject to tax pursuant to the provisions of the Internal Revenue Code of 1986 as amended from time to time. 13. To transact any or all lawful business for which corporations may be incorporated under the Indiana Business Corporation Law. ARTICLE III Period of Existence The period during which the Corporation shall continue is perpetual. ARTICLE IV Resident Agent and Principal Office Section 1. Resident Agent. The name and address of the Resident Agent in charge of the Corporation's principal office is Angi Knowlton, 301 South High Street, Muncie, Indiana 47305. Section 2. Principal Office. The post office address of the principal office of the Corporation is 301 South High Street, Muncie, Indiana 47305. ARTICLE V Authorized Shares Section 1. Number. The total number of shares which the Corporation has authority to issue is one thousand (1,000) shares without par value. Section 2. Terms. a. The shares are all of common stock, of one and the same class, having the same rights and privileges. b. The Board of Directors shall have the right to issue shares of stock of this Corporation for such consideration as the Board of Directors shall determine. Unless the Board of Directors by resolution shall provide otherwise, all consideration received by the Corporation from the sale of its common stock shall be allocated to the stated capital of the Corporation. c. The Corporation shall have the right to purchase, take, receive or otherwise acquire, hold, own, pledge, cancel, transfer or otherwise dispose of, or deal in, its own shares to the extent of unreserved and unrestricted capital surplus available, but with full authority and not in restriction of other authority as further provided by the Act, provided that no purchase of or payment for its own shares shall be made at a time when the Corporation is insolvent or when such purchase or payment would render it insolvent. d. The Corporation may create and issue rights and options to purchase shares of stock, and set terms, times, and prices at which, shares or fractional shares may be purchased, evidenced in such manner as the Board of Directors shall approve and consistent with the full authority granted by the Act. e. Such dividends as may be determined by the Board of Directors (after giving due consideration to the needs of the Corporation for adequate reserves and working capital) may be declared and paid on the common stock from time to time out of the unreserved and unrestricted earned and/or capital surplus of the Corporation, or as otherwise authorized by law, payable either in cash, in property, or in the shares of the corporation, provided that no such distribution shall be made out of capital surplus at a time when the Corporation is insolvent or when such distribution would render the Corporation insolvent. f. Each owner of common stock of the Corporation shall have the right, at every shareholders' meeting, to one vote for each share of stock outstanding in his name on the books of the Corporation at the above said meeting. g. Shares shall be issued to have such relative rights, preferences, limitations or restrictions, and bear such designations as shall be determined and stated by the Board of Directors prior to the issuance of any shares of such stock. The Board of Directors is hereby expressly vested with the authority to make such determination by the resolution of the Board. h. In the absence of a Stock Purchase Agreement between the Shareholders and the Corporation, the subscription for and ownership of all stock in this Corporation is made and taken upon the consideration that any shareholder desiring to transfer said stock by sale, gift or any other means shall first offer his stock to the Corporation, setting out the terms and conditions of the sale, and the Corporation shall have thirty (30) days in which to exercise its option to purchase the same. On the Corporation's refusal to purchase, all other shareholders shall have fifteen (15) days from the expiration of said thirty (30) days to exercise their option to purchase said stock. If more than one shareholder shall exercise his option and no agreement as to distribution can be reached within the option period, such stock shall be distributed equally among such shareholders exercising such options. If neither the Corporation nor the other shareholders exercises the option to purchase, then such shareholder can sell to any third person, provided that the terms and conditions of said sale are not more favorable than the terms and conditions of the offer to the corporation and other shareholders. i. The shareholders of the common stock of the Corporation shall have the right from time to time to purchase, at such respective equitable prices, terms and conditions (including pragmatic adjustments to avoid the issue of fractional shares) as shall be fixed by the Board of Directors, such of the shares of the common stock of the Corporation as may be hereafter issued, from time to time, whether constituting a part of the common stock presently or subsequently authorized, and including shares held in the treasury of the Corporation, in the respective ratios which the number of shares held by each shareholder at the respective times of such issues bears to the total number of shares issued and outstanding in the names of all shareholders at such respective times. ARTICLE VI Directors Section 1. Number of Directors. The initial Board of Directors is composed of three (3) members. The number of directors may be, from time to time, fixed by the By-Laws of the Corporation at any number. In the absence of a By-Law fixing the number of directors, the number shall be three (3). Section 2. Names and Post Office Addresses of the Directors. The names and post office addresses of the initial Board of Directors of the Corporation are:
Name Address Thomas Clark 301 South High Street Muncie, IN 47305 Kevin Bower 301 South High Street Muncie, IN 47305 William Skinner 301 South High Street Muncie, IN 47305
Section 3. Qualifications of Directors, (If Any). Directors need not be shareholders of the Corporation. ARTICLE VII Incorporator The name and post office address of the incorporator is Timothy J. Bender, 2700 Market Tower, 10 West Market Street, Indianapolis, Indiana 46204-2982. ARTICLE VIII Provisions For Regulation Of Business And Conduct Of Affairs Of Corporation 1. The shareholders and Board of Directors shall have power to hold their meetings, within or without the State of Indiana, as may be specified in the By-Laws or in respective notices, or waivers of notice thereof, and to have one or more offices, within or without the State of Indiana, and to keep the books of this Corporation (except such as are required by the Act above mentioned to be kept in Indiana) and documents and papers of the Corporation outside the State of Indiana, or at such places as may from time to time be designated by the Board of Directors. 2. All of the powers of the Corporation, insofar as the same may lawfully vest by these Articles of Incorporation are in the Board of Directors, and except as otherwise provided herein, are hereby conferred upon the Board of Directors of the Corporation, to be exercised without previous authorization or subsequent approval by the stockholders of the Corporation. 3. The Board of Directors of the Corporation shall have power, without the assent or vote of the shareholders, to make, alter, amend or repeal the By-Laws of the Corporation, but the affirmative vote of a majority of the members of the Board of Directors shall be necessary to effect any alteration, amendment or repeal thereof. 4. Any contract or other transaction between the Corporation and one or more of its Directors, (except loans to directors and officers, which are regulated by the Act) or between the Corporation and any firm of which one or more of its Directors are members or employees, or in which they are interested, or between the Corporation and any corporation or association of which one or more of its Directors are shareholders, members, directors, officers or employees, or in which they are interested, shall be valid for all purposes, notwithstanding the presence of such Director or Directors at the meeting of the Board of Directors which acts upon or in reference to such contract or transaction, and notwithstanding his or their participation in such action, if the fact of such interest shall be disclosed or known to the Board of Directors and the Board of Directors shall authorize, approve and ratify such contract or transaction by a vote of a majority of the Directors present, such interested Director or Directors to be counted in determining whether a quorum is present, but not to be counted in calculating the majority of such quorum necessary to carry such vote. This Section shall not be construed to invalidate any contract or other transaction which would otherwise be valid under the common and statutory law applicable thereto. 5. In addition to the powers and authorities hereinabove or by statute expressly conferred, the Board of Directors is hereby authorized to exercise all such powers, and to do all such acts and things as may be exercised or done by a corporation organized and existing under the provisions of the Act. 6. If the By-Laws provide or shall provide, the Board of Directors may designate two or more of its members to constitute an Executive Committee, which Committee to the extent provided in such By-Laws, shall have and exercise all of the authority of the Board of Directors in the management of the Corporation, except the authority to amend the Articles of Incorporation or By-Laws, declare dividends or distributions, approve a plan or merger or consolidation, reduce earned capital or surplus, recommend to the shareholders a voluntary dissolution of the corporation, or authorize or approve the reacquisition of shares unless pursuant to a general formula or method specified by the Board of Directors, and have the power to authorize the execution of any and all papers, instruments or documents as well as affix the seal of this Corporation thereto. 7. Dividends may be paid without deduction or depletion of assets by sale or lapse of time in computation of the earned surplus available for such dividends, subject to the rights of shareholders and creditors. 8. The Board of Directors may distribute to shareholders out of capital surplus of the Corporation a portion of its assets, in cash or property, provided that no such distribution shall be made at a time when the corporation is insolvent or when such distribution would render the corporation insolvent. 9. Each Director of the Corporation shall be fully protected in relying in good faith upon the books of account of the Corporation of the value and amounts of the assets, liabilities and net profits of the Corporation, of any of such items; or in relying in good faith upon any other information pertinent to the existence and amount of surplus of other funds from which dividends might properly be declared and paid. 10. The Board of Directors shall have the right to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against him and incurred by him in any such capacity, or arising out of his status as such, whether or not the corporation would have the power to indemnify him against such liability under the provisions of this Section. 11. The Board of Directors of the Corporation shall have power, from time to time to fix and determine and to vary the amount to be reserved as working capital of the Corporation and, before the payment of any dividends or the making of any distribution of profits, it may set aside, out of the net profits of the Corporation, such sum or sums as it may from time to time, in its absolute discretion, determine to be proper, whether as a reserve fund to meet contingencies for the equalizing of dividends, or repairing or maintaining any property of the Corporation, or for an addition to corporate surplus, or for any corporate purposes that the Board of Directors shall think conducive to the best interest of the Corporation, subject only to such limitations as the By-Laws of the Corporation may, from time to time, impose. 12. After it remains unclaimed for a period of seven (7) years, any stock, dividend, demand obligation or past due obligation of this Corporation, interest, distribution or other claim against or obligation of this Corporation shall be subject to the Indiana Uniform Disposition of Unclaimed Property Act (the Unclaimed Property Act"), if applicable, of, if the Unclaimed Property Act is not applicable, shall revert to this Corporation. 13. The Board of Directors is hereby specifically authorized, in and by the By-Laws of the Corporation, or by resolution duly adopted by such Board, to make provision for reasonable compensation to its members for their services as Directors, and to fix the basis and conditions upon which such compensation shall be paid. Any Director of the Corporation may also serve the Corporation in any other capacity and receive compensation therefor in any form. 14. The Corporation reserves the right to alter, amend or repeal any provisions contained in these Articles of Incorporation in the manner now or hereafter prescribed by the provisions of the Act, or any other pertinent enactment of the General Assembly of the State of Indiana; and all rights and powers conferred hereby on shareholders, directors, and officers of the Corporation are subject to such reserved right. ARTICLE IX Indemnification Section 1. Definitions. a. "Director" means an individual who is or was a director of the Corporation or any subsidiary of the Corporation, or an individual who, while a director of the Corporation, is or was serving at the Corporation's request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, whether for profit or not. A director is considered to be serving an employee benefit plan at the Corporation's request if the director's duties to the Corporation also impose duties on, or otherwise involve services by, the director to the plan or to participants in or beneficiaries of the plan. "Director" includes, unless the context requires otherwise, the estate or personal representative of a director. b. "Expenses" include counsel fees. c. "Liability" means the obligation to pay a judgment, settlement, penalty, fine (including an excise tax assessed with respect to an employee benefit plan), and/or reasonable expenses incurred with respect to a proceeding. d. "Official Capacity" means: (i) when used with respect to a director, the office of director in the Corporation or its subsidiaries, as the case may be; and (ii) when used with respect to an individual other than a director, as contemplated in Section 7 herein, the office in the Corporation or its subsidiaries, as the case may be, held by the officer or the employment or agency relationship undertaken by the employee or agent on behalf of the Corporation. "Official capacity" does not include service for any other foreign or domestic corporation, except the Corporation's subsidiaries, or any partnership, joint venture, trust, employee benefit plan, or other enterprise, whether for profit or not. e. "Party" includes an individual who was, is, or is threatened to be made a named defendant or respondent in a proceeding. f. "Proceeding" means any threatened, pending, or completed action, suit, or proceeding, whether civil, criminal, administrative, or investigative and whether formal or informal. Section 2. Optional Indemnification. The Corporation may indemnify an individual made a party to a proceeding because the individual is or was a director against liability incurred in the proceeding if: a. The individual's conduct was in good faith; and b. The individual reasonably believed: (i) in the case of conduct in the individual's official capacity with the Corporation or its subsidiaries, as the case may be, that the individual's conduct was in its best interests; and (ii) in all other cases, that the individual's conduct was at least not opposed to the best interests of the Corporation or its subsidiaries, as the case may be; and (c) In the case of any criminal proceeding, the individual either: (i) had reasonable cause to believe the individual's conduct was lawful; or (ii) had no reasonable cause to believe the individual's conduct was unlawful. A Director's conduct with respect to an employee benefit plan for a purpose the Director reasonably believed to be in the interests of the participants in and beneficiaries of the plan is conduct that satisfies the requirement of subsection b. (ii). The termination of a proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent is not, of itself, determinative that the Director did not meet the standard of conduct described in this section. Section 3. Mandatory Indemnification. The Corporation shall indemnify a Director who was wholly successful, on the merits or otherwise, in the defense of any proceeding to which the Director was a party because the Director is or was a Director of the Corporation or of a subsidiary of the Corporation against reasonable expenses incurred by the Director in connection with the proceeding. Section 4. Expense Reimbursement. The Corporation may pay for or reimburse the reasonable expenses incurred by a Director who is a party to a proceeding in advance of final disposition of the proceeding if: a. The Director furnishes the Corporation a written affirmation of the Director's good faith belief that the Director has met the standard of conduct described in Section 2; b. The Director furnishes the Corporation a written undertaking, executed personally or on the Director's behalf, to repay the advance if it is ultimately determined that the Director did not meet the standard of conduct; and c. A determination is made that the facts then known to those making the determination would not preclude indemnification under this Article. The undertaking required by subsection b. of this Section must be an unlimited general obligation of the Director but need not be secured and may be accepted without reference to financial ability to make repayment. Determinations and authorizations of payments under this section shall be made in the manner specified in Section 6 herein. Section 5. Court Ordered Indemnification. A Director of the Corporation who is a party to a proceeding may apply for indemnification to the court conducting the proceeding or to another court of competent jurisdiction. On receipt of an application, the court after giving any notice the court considers necessary may order indemnification if it determines: a. The Director is entitled to mandatory indemnification under Section 2 herein, in which case the court shall also order the Corporation to pay the Director's reasonable expenses incurred to obtain court-ordered indemnification; or b. The Director is fairly and reasonably entitled to indemnification in view of all the relevant circumstances, whether or not the Director met the standard of conduct set forth in Section 2 herein. Section 6. Procedure. The Corporation may not indemnify a Director under Section 2 herein unless authorized in the specific case after a determination has been made that indemnification of the Director is permissible in the circumstances because the Director has met the standard of conduct set forth in Section 2 herein. The determination shall be made by any one (1) of the following procedures: a. By the Board of Directors by majority vote of a quorum consisting of Directors not at the time parties to the proceeding. b. If a quorum cannot be obtained under subdivision a., by a majority vote of a committee duly designated by the Board of Directors (in which designation Directors who are parties may participate), consisting solely of two (2) or more Directors not at the time parties to the proceeding. c. By special legal counsel: (i) selected by the Board of Directors or its committee in the manner prescribed in subdivision a. or b.; or (ii) if a quorum of the Board of Directors cannot be obtained under subdivision a. and a committee cannot be designated under subdivision b., selected by a majority vote of the full Board of Directors (in which selection Directors who are parties may participate). d. By the shareholders, but shares owned by or voted under the control of Directors who are at the time parties to the proceeding may not be voted on the determination. Authorization of indemnification and evaluation as to reasonableness of expenses shall be made in the same manner as the determination that indemnification is permissible, except that if the determination is made by special legal counsel, authorization of indemnification and evaluation as to reasonableness of expenses shall be made by those entitled under subsection c to select counsel. Section 7. Miscellaneous Indemnification Provisions. An officer of the Corporation or of a subsidiary of the Corporation, whether or not a Director, is entitled to mandatory indemnification under Section 3 herein and is entitled to apply for court-ordered indemnification under Section 5 herein, in each case to the same extent as a Director. The Corporation may indemnify and advance expenses hereunder to an officer, employee, or agent of the Corporation or of a subsidiary of the Corporation, whether or not a Director, to the same extent as to a Director. The Corporation may also indemnify and advance expenses to an officer, employee, or agent, whether or not a Director, to the extent, consistent with public policy, that may be provided by these Articles of Incorporation, the By-Laws, general or specific action of the Board of Directors, or by contract. The Corporation may purchase and maintain insurance on behalf of an individual who is or was a Director, officer, employee, or agent of the Corporation, or of a subsidiary of the Corporation, or who, while a Director, officer, employee, or agent of the Corporation, is or was serving at the request of the Corporation as a Director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, against liability asserted against or incurred by the individual in that capacity or arising from the individual's status as a Director, officer, employee, or agent, whether or not the corporation would have power to indemnify the individual against the same liability under Sections 2 or 3 herein; provided, however, that when and to the extent that the Corporation has purchased and maintained such insurance, it shall have no duty hereunder to indemnify any such person to the extent such liabilities are covered by insurance. The rights of indemnification provided hereunder shall continue to exist as to a person who has ceased to be a Director, officer, or employee or agent of the Corporation, or of any of its subsidiaries, and shall inure to the benefit of the heirs, executors and administrators of any such person. The indemnification provided by Article IX herein shall be applicable to all proceedings made or commenced after the adoption hereof, arising from acts or omissions to act occurring whether before or after the adoption hereof. The provisions of this Article IX do not limit the Corporation's power to pay or reimburse expenses incurred by a Director, officer, employee or agent in connection with the person's appearance as a witness in a proceeding at a time when the person has not been made a named defendant or respondent to the proceeding. The indemnification provisions herein are intended to encompass the provisions of Section 23-1-37 of the Indiana Business Corporation Law, as from time to time amended, as modified by these Articles of Incorporation as permitted by Section 23-1-37-15 of the Indiana Business Corporation Law, as from time to time amended. IN WITNESS WHEREOF, the undersigned, being the incorporator designated in Article VII, executes these Articles of Incorporation and certifies to the truth of the facts herein stated this 3rd day of January 1995. /s/ Timothy J. Bender --------------------- EX-3.5 4 file003.txt BYLAWS OF ALLTRISTA NEWCO CORPORATION. BY-LAWS OF ALLTRISTA NEWCO CORPORATION ARTICLE I IDENTIFICATION Section 1. Name. The name of the corporation shall be Alltrista Newco Corporation, (hereinafter referred to as the "Corporation"). Section 2. Seal. The Board of Directors may designate that the Corporation may have a corporate seal which shall be as follows: A circular disc, on the outer margin of which shall appear the corporate name and state of incorporation, with the words "Corporate Seal" through the center, so mounted that it may be used to impress these words in raised letters upon paper. The Secretary shall be in the possession of the corporate seal. Section 3. Fiscal Year. The fiscal year of the Corporation shall be determined by the Board of Directors; provided, however, the first fiscal year must be at the end of a calendar month for a period not in excess of twelve (12) months from the time the Corporation commenced its business, or if a proper election is made with the Internal Revenue Service, the fiscal year may vary from fifty-two (52) to fifty-three (53) weeks if such period always ends on the same day of the week and is either the last such day in a calendar month or the closest such day to the last such day of a calendar month. ARTICLE II SHARES Section 1. Consideration for Shares. The Board of Directors shall cause the Corporation to issue the shares of the Corporation for such consideration as has been fixed by such Board in accordance with the provisions of the Articles of Incorporation. Section 2. Payment for Shares. Subject to the provisions of the Articles of Incorporation, the board of directors may authorize shares to be issued for consideration consisting of any tangible or intangible property or benefit to the Corporation, including cash, promissory notes, services performed, contracts for services to be performed, or other securities of the Corporation. Shares may be issued for promissory notes or promises to render services in the future, provided that the Corporation must report in writing to the shareholders the number of shares authorized to be so issued with or before the notice of the next shareholders' meeting. The Corporation may (but is not required to) place in escrow shares issued for a contract for future services or benefits or a promissory note, or make other arrangements to restrict the transfer of the shares, and may (but is not required to) credit distributions in respect of the shares against their purchase price, until the services are performed, the note is paid, or the benefits received. If the services are not performed, the note is not paid, or the benefits are not received, the shares escrowed or restricted and the distributions credited may be cancelled in whole or in part. When payment for which a share was authorized to be issued shall have been received by the Corporation, such share shall be declared and taken to be fully paid and nonassessable. The determination of the board of directors as to the consideration to be received or received for shares is conclusive insofar as the adequacy of consideration for the issuance of shares relates to whether the shares are validly issued, fully paid and nonassessable. Section 3. Certificates for Shares. The Corporation shall issue to each shareholder a certificate signed by the President or the Vice-President and by the Secretary of the Corporation certifying the number of shares owned by him in the Corporation. Where such certificate is also signed by a transfer agent or registrar, the signatures of the President or Vice President and of the Secretary may be facsimiles. The certificate shall state the name of the Corporation and that it is organized under Indiana law, the name of the registered holder, the number of shares represented thereby and the class of shares and the designation of the series, if any, the certificate represents, the par value of each share or a statement that such shares have no par value, and whether such shares have been fully paid up, the certificate shall be legibly stamped to indicate the per centum which has been paid up, and as further payments are made thereon the certificate shall be stamped accordingly. If the Corporation is authorized to issue different classes of shares or different series within a class, the designations, relative rights, preferences, and limitations applicable to each class and the variations in rights, preferences, and limitations determined for each series (and the authority of the board of directors to determine variations for future series) must be summarized on the front or back of each certificate. Alternatively, each certificate may state conspicuously on its front or back that the Corporation will furnish the shareholder this information on request in writing and without charge. Section 4. Form of Certificates. The share certificates to represent the shares of this Corporation shall be in such form, not inconsistent with the laws of the State of Indiana, as may be adopted by the Board of Directors. Section 5. Transfer of Shares. Title to a certificate and to the shares represented thereby can be transferred only: (a) By delivery of the certificate endorsed either in blank or to a specified person by the person appearing by the certificate to be the owner of the shares represented thereby; or (b) By delivery of the certificate and a separate document containing a written assignment of the certificate or a power of attorney to sell, assign or transfer the same or the shares represented thereby, signed by the person appearing by the certificate to be the owner of the shares represented thereby. Such assignment or power of attorney may be either in blank or to a specified person. Section 6. Closing of Transfer Books. The transfer books shall be closed for a period of ten days prior to the date set for any meeting of shareholders, and during such period no new certificates for shares shall be issued by this Corporation and no change or transfer shall be made upon the records thereof. Section 7. Registered Shareholders. The Corporation shall be entitled to recognize the exclusive-right of a person registered on its books as the owner of such shares to receive dividends, to vote as such owner, to hold liable for calls and assessments, and to treat as owner in all other respects, and shall not be bound to recognize any equitable or other claims to or interest in such share or shares on the part of any other person, whether or not it shall have actual or constructive notice thereof, except as otherwise provided by the law of Indiana. Section 8. Lost, Stolen, or Destroyed Certificates. The Corporation may cause a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the Corporation alleged to have been lost, stolen, or destroyed upon the making of an affidavit of that fact by the person claiming the certificate of share to be lost, stolen, or destroyed. When authorizing such issue of a new certificate or certificates, the Corporation may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost, stolen, or destroyed certificate or certificates, or his legal representative, to give the Corporation a bond in such sum and in such form as it may direct to indemnify it against any claim that may be made against the Corporation with respect to the certificate alleged to have been lost, stolen, or destroyed. The Corporation, in its discretion, may authorize the issuance of such new certificates without any bond when, in its judgment, it is proper to do so. ARTICLE III MEETING OF SHAREHOLDERS Section 1. Place of Meeting. All meetings of shareholders shall be held within this state and at the principal office of the Corporation, or at such location as determined by the Board of Directors unless otherwise provided in the Articles of Incorporation. Section 2. Annual Meeting. The annual meeting of the shareholders for the election of directors and for the transaction of such other business as may properly come before the meeting may be held at any time within six (6) months after the close of each fiscal year of the Corporation. Section 3. Failure to Hold Meeting. Failure to hold the annual meeting shall not work a forfeiture or dissolution of the Corporation. The failure to hold the annual meeting at the time stated in Article III, Section 2 does not affect the validity of any Corporate action taken at such meeting. Section 4. Special Meetings. Special meetings of the shareholders may be called by the President, by the Board of Directors or by shareholders holding at least one-fourth (1/4) of all the shares outstanding and entitled by the Articles of Incorporation to vote on the business proposed to be transacted thereat, if such shareholders sign, date, and deliver to the Corporation's Secretary one (1) or more written demands for the meeting describing the purpose or purposes for which it is to be held. The record date for determining shareholders to demand a special meeting is the date the first shareholder signs the demand. Only business within the purpose or purposes described in the meeting notice may be conducted at the special shareholders' meeting. Section 5. Notice of Meetings. A written or printed notice, stating the place, date and time of the meeting, and in case of a special meeting the purpose or purposes for which the meeting is called, shall be delivered or mailed by the Secretary, to each holder of the shares of the Corporation at the time entitled to vote, at such address as appears upon the records of the Corporation, at least ten (10) days and no more than sixty (60) days before the date of the meeting. The record date for meetings shall be established by the Board of Directors not more than seventy (70) days prior to the meeting. Notice of any such meeting may be waived in writing by any shareholder, before or after the date and time stated in the notice, if the notice is delivered to the Corporation for inclusion in the minutes or filing with the corporate records. A shareholder's attendance at a meeting: (a) waives objection to lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting; and (b) waives objection to consideration of a particular matter at the meeting that is not within the purpose or purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented. Section 6. Teleconference. Any or all shareholders may participate in any meeting of the shareholders by means of a conference telephone or similar communications equipment by which all persons participating in the meeting can communicate with each other. Participation by these means constitutes presence in person at the meeting. Section 7. Consent of Action Taken at Meetings. Any action which may be taken at a meeting of the shareholders may be taken without a meeting if, prior to such action, one or more written consents, setting forth the action to be taken, is [are] signed by all of the shareholders entitled to vote with respect to the subject matter thereof, and such written consent[s] are delivered to the Corporation for inclusion in the minutes or filing with the corporate records. The record date for determining shareholders entitled to take action without a meeting is the date the first shareholder signs the consent. A consent has the same effect as a meeting vote and may be described as such in any document. Section 8. Voting by Shareholders. (a) Except as provided in subsections (b) and (c) or unless the Articles of Incorporation provide otherwise, each outstanding share, regardless of class, is entitled to one (1) vote on each matter voted on at a shareholder's meeting. Only shares are entitled to vote. (b) Absent special circumstances, the shares of the Corporation are not entitled to vote if they are owned, directly or indirectly, by a second corporation, domestic or foreign, and the Corporation owns, directly or indirectly, a majority of the shares entitled to vote for directors of the second corporation. (c) Subsection (b) does not limit the power of the Corporation to vote any shares, including its own shares, held by it in or for an employee benefit plan or in any other fiduciary capacity. (d) Redeemable shares are not entitled to vote after notice of redemption is mailed to the holders and a sum sufficient to redeem the shares has been deposited with a bank, trust company, or other financial institution under an irrevocable obligation to pay the holders the redemption price on surrender of the shares. Section 9. Proxies. (a) A shareholder may vote the shareholder's shares in person or by proxy. (b) A shareholder may appoint a proxy to vote or otherwise act for the shareholder by signing an appointment form, either personally or by the shareholder's attorney-in-fact. (c) An appointment of a proxy is effective when received by the secretary or other officer or agent authorized to tabulate votes. An appointment is valid for eleven (11) months unless a longer period is expressly provided in the appointment form. Section 10. Quorum. (a) Unless otherwise provided by the Articles of Incorporation, at any meeting of shareholders, a majority of the votes entitled to be cast on the matter by the voting group constitutes a quorum of that voting group for action on the matter. (b) A "voting group" means all shares of one (1) or more classes or series that under the Articles of Incorporation are entitled to vote and be counted together collectively on a matter at a meeting of shareholders. All shares entitled by the Articles of Incorporation to vote generally on the matter are for that purpose a single voting group. (c) Once a share is represented for any purpose at a meeting, it is deemed present for quorum purposes for the remainder of the meeting and for any adjournment of that meeting unless a new record date is or must be set for that adjourned meeting. Section 11. Organization. The President, and in his absence any officer authorized, and in their absence, any shareholder chosen by the shareholders present, shall call meetings of the shareholders to order and shall act as chairman of such meetings, and the Secretary of the Corporation shall act as secretary of all meetings of the shareholders. In the absence of the Secretary, the presiding officer may appoint a shareholder to act as secretary of the meeting. Section 12. Required Vote. When a quorum is present at any meeting, action on a matter (other than the election of directors) by a voting group is approved if the votes cast within the voting group favoring the action exceed the votes cast opposing the action, unless the Articles of Incorporation, the By-laws or the provisions of the Indiana Business Corporation Law, as from time to time amended, require a greater number of affirmative votes. Directors shall be elected by a plurality of the votes cast by the shares entitled to vote in the election at a meeting at which a quorum is present. Section 13. Nominations for Directors. Nominations for the election of Directors may be made by the Board of Directors or by any shareholder entitled to vote for the election of Directors. Nominations by such shareholders must be made by notice, in writing, delivered or mailed by first class United States mail, postage prepaid, to the Secretary of the Corporation, which notice must be received not less than ten (10) days prior to any meeting of the shareholders called for the election of Directors. The Chairman of the meeting at which Directors are being elected may, if the facts warrant, determine and declare to the meeting that a nomination was not made in accordance with the foregoing procedure, and if he should so determine, he shall so declare to the meeting and the defective nomination shall be disregarded. ARTICLE IV BOARD OF DIRECTORS Section 1. Board of Directors. The property and business of the corporation shall be managed by a Board of Directors. In accordance with the Articles of Incorporation, the Board of Directors shall consist of not less than one (1), nor more than ten (10) members. The exact number of Directors is hereby fixed at three (3). Section 2. Duties. The corporate power of this corporation shall be vested in the Board of Directors, who shall have the management and control of the business of the Corporation. They shall employ such agents and servants as they may deem advisable, and fix the rate of compensation of all agents, employees and officers. A majority of the Board of Directors may designate three or more of its members to constitute an Executive Committee, which Committee shall, to the extent allowed by The Indiana Business Corporation Law, as from time to time amended, have and exercise all of the authority of the Board of Directors on the management of the Corporation and have the power to authorize the execution of any and all papers, instruments or documents as well as affix the seal of this Corporation thereto. Section 3. Resignation. A director may resign at any time by delivering written resignation to the Board, its chairman, or the Secretary. A resignation is effective when the notice is delivered unless the notice specifies a later effective date. Section 4. Removal. At a meeting of Shareholders called expressly for that purpose, directors may be removed in the manner provided in this section, unless otherwise provided in the Articles of Incorporation. Any or all of the members of the Board of Directors may be removed, with or without cause, only by a vote of the holders of a majority of the shares then entitled to vote. Section 5. Vacancies. In case of any vacancy in the Board of Directors through death, resignation, removal or other cause, the Board of Directors may fill the vacancy; or if the Directors remaining in office constitute fewer than a quorum of the Board, the remaining Directors by the affirmative vote of a majority thereof may elect a successor to fill such vacancy until the next annual meeting and until his successor is elected and qualified. If the vote of the remaining members of the Board shall result in a tie, the vacancy shall be filled by shareholders at the annual meeting or a special meeting called for that purpose. Shareholders shall be notified of the name, address, principal occupation and other pertinent information about any Director elected by the Board of Directors to fill any vacancy. The term of the Director elected to fill the vacancy expires at the end of the term for which the Director's predecessor was elected. Section 6. Annual Meetings. The Board of Directors shall meet each year immediately after the annual meeting of the shareholders, for the purpose of organization, election of officers and consideration of any other business that may be brought before the meeting. No notice shall be necessary for the holding of this annual meeting. If such meeting is not held as above provided, the election of officers may be had at any subsequent meeting of the Board specifically called in the manner provided in Section 7 following. Section 7. Other Meetings. Other meetings of the Board of Directors may be held upon the call of the President, or of two or more members of the Board of Directors, at any place within or without the State of Indiana, upon forty-eight (48) hours notice, specifying the time, place and general purposes of the meeting, given to each Director, either personally, by mailing or by telegram. A Director may waive any notice required by Indiana law, the Articles of Incorporation, or By-laws before or after the date and time stated in the notice. Except as provided below, the waiver must be in writing, signed by the Director entitled to the notice, and filed with the minutes or corporate records. A Director's attendance at or participation in a meeting waives any required notice to the Director of the meeting unless the Director at the beginning of the meeting (or promptly upon the Director's arrival) objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting. Section 8. Teleconference. A member of the Board of Directors may participate in a meeting of the Board by means of a conference telephone or similar communications equipment by which all persons participating in the meeting can communicate with each other. Participation by these means constitutes presence in person at the meeting. Section 9. Consent. Any action required or permitted to be taken at any meeting of the Board of Directors or of any committee thereof, may be taken without a meeting, if prior to such action a written consent to such action is signed by all the members of the Board of Directors or of such committee as the case may be, and such written consent is included in the minutes or filed with the corporate records reflecting the action taken. Action taken under this Section 9 is effective when the last Director signs the consent, unless the consent specifies a different prior or subsequent effective date. A consent signed under this Section 9 has the effect of a meeting vote and may be described as such in any document. Section 10. Quorum. At any meeting of the Board of Directors, the presence of a majority of the members of the Board elected and qualified shall constitute a quorum for the transaction of any business except as provided in Article IV, Section 5, relating to the filling of vacancies in the Board of Directors. If a quorum is present when a vote is taken, the affirmative vote of a majority of Directors present is the act of the Board of Directors unless the Articles of Incorporation or By-laws provided otherwise. Section 11. Organization. The President, and in his absence any Director chosen by the Directors present, shall call meetings of the Board of Directors to order, and shall act as chairman of such meetings. The Secretary of the Corporation shall act as secretary of the Board of Directors, but in the absence of the Secretary the presiding officer may appoint any Director to act as secretary of the meeting. ARTICLE V OFFICERS OF THE CORPORATION Section 1. Officers. The officers of the Corporation shall consist of a President and Secretary, and may also consist of a Vice President, Treasurer and any other offices that may be created by the Board. Any two or more offices may be held by the same person. The Board of Directors by resolution may create and define the duties of other offices in the Corporation and shall elect or appoint persons to fill all such offices. Election or appointment of an officer shall not of itself create contract rights. Section 2. Vacancies. Whenever any vacancies shall occur in any office by death, resignation, increase in the number of offices of the Corporation, or otherwise, the same shall be filled by the Board of Directors, and the officer so elected shall hold office until his successor is chosen and qualified. Section 3. President. The President shall preside at all meetings of shareholders. The President shall discharge all the duties which devolve upon a presiding officer, and perform such other duties as this code of By-laws provides, or the Board of Directors may prescribe. The President shall preside at all meetings of the Directors. The President, or in his absence, the Vice-President, shall have full authority to execute proxies on behalf of the Corporation, to vote shares owned by it in any other corporation, and to execute, with the Secretary, powers of attorney appointing other corporations, partnerships, or individuals the agent of the Corporation, all subject to the provisions of the Indiana Business Corporation Law, as from time to time amended, the Articles of Incorporation and this code of By-laws. Section 4. Vice President. The Vice President shall perform all duties incumbent upon the President during the absence or disability of the President, and perform such other duties as this code of By-Laws or the Board of Directors may prescribe. Section 5. Secretary. The Secretary shall have the custody and care of the corporate seal, records, minutes and share books of the Corporation. The Secretary shall attend all meetings of the shareholders and of the Board of Directors, and shall keep, or cause to be kept in a book provided for the purpose, a true and complete record of the proceedings of such meetings, and shall perform a like duty for all standing committees appointed by the Board of Directors, when required. The Secretary shall attend to the giving and serving of all notices of the Corporation, shall file and take charge of all papers and documents belonging to the Corporation and shall perform such other duties as this code of By-Laws may require or the Board of Directors may prescribe. Section 6. Treasurer. The Treasurer shall keep correct and complete records of account, showing accurately at all times the financial condition of the Corporation. The Treasurer shall be the legal custodian of all moneys, notes, securities and other valuables which may, from time to time, come into the possession of the Corporation. The Treasurer shall immediately deposit all funds of the Corporation received by the Treasurer in some reliable bank or other depository to be designated by the Board of Directors, and shall keep such bank account in the name of the Corporation. The Treasurer shall furnish at meetings of the Board of Directors, or whenever requested, a statement of the financial condition of the corporation, and shall perform such other duties as this code of By-laws may require or the Board of Directors may prescribe. The Treasurer may be required to furnish bond in such amount as shall be determined by the Board of Directors. Section 7. Delegation of Authority. In case of the absence of any officer of the Corporation, or for any other reason that the Board of Directors may deem sufficient, the Board of Directors may delegate the powers or duties of such officer to any other officers or to any Director, for the time being, provided a majority of the entire Board of Directors concurs therein. Section 8. Resignation and Removal. An officer may resign at any time by delivering written notice to the Board of Directors, its chairman, or the Secretary of the Corporation. A resignation is effective when the notice is delivered unless the notice specifies a later effective date. If a resignation is made effective at a later date and the Corporation accepts the future effective date, its Board of Directors may fill the pending vacancy before the effective date if the Board of Directors provides that the successor does not take office until the effective date. The Board of Directors may remove any officer at any time with or without cause by the affirmative vote of a majority of the actual number of Directors. Section 9. Execution of Documents. Unless otherwise provided by the Board of Directors, all contracts, leases, commercial papers and other instruments in writing and legal documents shall be signed by the President and attested by the Secretary. All bonds, deeds and mortgages shall be signed by the President and attested by the Secretary. All certificates of shares shall be signed by the President and by the Secretary. All checks, drafts, notes and orders for the payment of money shall be signed by those officers or employees of the Corporation as the Directors may, from time to time, designate. ARTICLE VI CORPORATE BOOKS Except as otherwise provided by the laws of the State of Indiana, by the Articles of Incorporation of the Corporation, or by these By-laws, the books and records of the Corporation may be kept at such place or places within or without the State of Indiana, as the Board of Directors may from time to time by resolution determine; but that absent such resolution, the books and records of this Corporation shall be kept at the principal office of the Corporation as noted in Article I of these By-laws. ARTICLE VII AMENDMENTS By-laws may be adopted, amended or repealed at any valid meeting of the Board of Directors by the vote of a majority of the entire Board of Directors. Accepted this day of , 1995. --- ------------------- By: /s/ Kevin D. Bowers -------------------- EX-3.6 5 file004.txt AMENDMENT NO. 1 TO BYLAWS AMENDMENT NO. 1 TO BY-LAWS OF ALLTRISTA NEWCO CORPORATION 1. The By-laws (the "By-laws") of Alltrista Newco Corporation, an Indiana Corporation, are hereby amended as follows: Article V, Sections 1, 3 and 9 of the By-laws are hereby by amended by deleting such sections in their entirety and inserting the following new Sections 1, 3 and 9, respectively, in lieu thereof: "Section 1. Officers. The officers of the Corporation shall consist of a Chief Executive Officer, President and Secretary, and may also consist of a Vice President, Treasurer and Controller and any other offices that may be created by the Board. Any two or more offices may be held by the same person. The Board of Directors by resolution may create and define the duties of other offices in the Corporation and shall elect or appoint persons to fill all such offices. Election or appointment of an officer shall not of itself create contract rights. Section 3. President. The President shall preside at all meetings of shareholders. The President shall discharge all the duties which devolve upon a presiding officer, and perform such other duties as this code of By-laws provides, or the Board of Directors and Chief Executive Officer may prescribe. The President shall preside at all meetings of the Directors. The President, or in his absence, the Vice-President, shall have full authority to execute proxies on behalf of the Corporation, to vote shares owned by it in any other corporation, and to execute, with the Secretary, powers of attorney appointing other corporations, partnerships, or individuals the agent of the Corporation, all subject to the provisions of the Indiana Business Corporation Law, as from time to time amended, the Articles of Incorporation and this code of By-laws. Section 9. Execution of Documents. Unless otherwise provided by the Board of Directors, all contracts, leases, commercial papers, bonds, deeds, mortgages, certificates of shares, and other instruments in writing and legal documents shall be signed by the Chief Executive Officer, President, Vice President, Secretary or those other officers of the Corporation as the Directors may, from time to time, designate. All checks, drafts, notes and orders for the payment of money shall be signed by the Chief Executive Officer, President, Vice President, Secretary or those other officers or employees of the Corporation as the Directors may, from time to time, designate." Article V of the By-laws is hereby amended by adding the following new Sections 10 and 11 at the end thereof: "Section 10. Chief Executive Officer. The Chief Executive Officer shall have general direction of the affairs of the Corporation and general supervision over its several officers, subject, however, to the control of the Board of Directors and the Chairman of the Board, and in general shall perform such duties and, subject to the other provisions of these By-laws, have such powers incident to the office of Chief Executive Officer and perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors or the Chairman of the Board. Section 11. Controller. The Controller is responsible for preparing correct and complete books of account which show accurately at all times the financial condition of the Corporation, including, but not limited to the preparation of balance sheets, income statements, statements of cash flows and such other statements as may be required, as well as, budgets and forecasts. The Controller shall furnish to the other officers of the Company and to the board of directors, upon request, statements of the financial condition of the Corporation and such other financial information as requested. The Controller has such other duties as the Treasurer, other officers of the Corporation and the board of directors may from time to time prescribe." 2. Except as amended herein, the By-laws shall remain unmodified and in full force and effect. The undersigned hereby certifies that the above and foregoing amendment was duly adopted by the unanimous written consent of the directors on June 25, 2002. This 25th day of June, 2002 By: /s/ Ian Ashken Title: Secretary and Treasurer of Alltrista Newco Corporation EX-3.7 6 file005.txt ARTICLES OF INCORPORATION ARTICLES OF INCORPORATION OF ALLTRISTA PLASTICS CORPORATION The undersigned incorporator, desiring to form a corporation (hereinafter referred to as the "Corporation") pursuant to the provisions of the Indiana Business Corporation Law, as amended (hereinafter referred to as the "Act"), executes the following Articles of Incorporation. ARTICLE I NAME The name of the Corporation is Alltrista Plastics Corporation. ARTICLE II SHARES Section 2.1. Number. The total number of shares which the Corporation is authorized to issue is one thousand (1,000) shares, with par value of One Dollar ($1.00) per share. Section 2.2. Classes. There shall be one (1) class of shares of the Corporation, which shall be designated as "Common Shares". Section 2.3. Relative Rights, Preferences, Limitations and Restrictions of Common Shares. All Common Shares shall have the same rights, preferences, limitations and restrictions. Section 2.4. Voting Rights of Common Shares. Each holder of Common Shares shall be entitled to one (1) vote for each share owned of record on the books of the Corporation on each matter submitted to a vote of the holders of Common Shares. ARTICLE III REGISTERED OFFICE AND REGISTERED AGENT Section 3.1. Registered Office. The street address of the Corporation's initial registered office One North Capital Avenue, Indianapolis, Indiana 46204. Section 3.2. Registered Agent. The name of the Corporation's initial registered agent at such registered office is CT Corporation System. ARTICLE IV INCORPORATOR The name and address of the incorporator of the Corporation are: Name Address ---- ------- Angela K. Knowlton 345 South High Street, Suite 200 P.O. Box 5004 Muncie, Indiana 47307-5004 ARTICLE V BOARD OF DIRECTORS Section 5.1. Number. The total number of directors shall be that specified in or fixed in accordance with the bylaws. In the absence of a provision in the bylaws specifying the number of directors or setting forth the manner in which such number shall be fixed, the number of directors shall be three (3). The bylaws may provide for staggering the terms of directors by dividing the directors into two (2) or three (3) groups, as provided in the Act. Section 5.2. Initial Board of Directors. The names and addresses of the initial directors of the Corporation are: Name Address ---- ------- Thomas B. Clark 345 South High Street, Suite 200 P.O. Box 5004 Muncie, Indiana 47307-5004 Jerry T. McDowell 345 South High Street, Suite 200 P.O. Box 5004 Muncie, Indiana 47307-5004 Kevin D. Bower 345 South High Street, Suite 200 P.O. Box 5004 Muncie, Indiana 47307-5004 ARTICLE VI INDEMNIFICATION Section 6.1. Rights to Indemnification and Advancement of Expenses. (a) The Corporation shall indemnify as a matter of right every person made a party to a proceeding because such person is or was (i) a member of the Board of Directors of the Corporation, (ii) an officer of the Corporation, or (iii) while a director or officer of the Corporation, serving at the Corporation's request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, whether for profit or not, (each an "Indemnitee") against all liability incurred by such person in connection with the proceeding; provided that it is determined in the specific case that indemnification of such person is permissible in the circumstances because such person has met the standard of conduct for indemnification specified in the Act. The Corporation shall pay for or reimburse the reasonable expenses incurred by an Indemnitee in connection with any such proceeding in advance of final disposition thereof in accordance with the procedures and subject to the conditions specified in the Act. The Corporation shall indemnify as a matter of right an Indemnitee who is wholly successful, on the merits or otherwise, in the defense of any such proceeding, against reasonable expenses incurred by the Indemnitee in connection with the proceeding without the requirement of a determination as set forth in the first sentence of this paragraph. (b) Upon demand by a person for indemnification or advancement of expenses, as the case may be, the Corporation shall expeditiously determine whether the person is entitled thereto in accordance with this Article and the procedures specified in the Act. (c) The indemnification provided under this Article shall apply to any proceeding arising from acts or omissions occurring before or after the adoption of this Article. Section 6.2. Other Rights Not Affected. Nothing contained in this Article shall limit or preclude the exercise or be deemed exclusive of any right under the law, by contract or otherwise, relating to indemnification of or advancement of expenses to any individual who is or was a director, officer, employee or agent of the Corporation, or the ability of the Corporation to otherwise indemnify or advance expenses to any such individual. It is the intent of this Article to provide indemnification to directors and officers to the fullest extent now or hereafter permitted by law consistent with the terms and conditions of this Article. Therefore, indemnification shall be provided in accordance with this Article irrespective of the nature of the legal or equitable theory upon which a claim is made, including without limitation negligence, breach of duty, mismanagement, corporate waste, breach of contract, breach of warranty, strict liability, violation of federal or state securities laws, violation of the Employee Retirement Income Security Act of 1974, as amended, or violation of any other state or federal laws. Section 6.3. Definitions. For purposes of this Article: (a) The term "director" means an individual who is or was a member of the Board of Directors of the Corporation or an individual who, while a director of the Corporation, is or was serving at the Corporation's request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, whether for profit or not. A director is considered to be serving an employee benefit plan at the Corporation's request if the director's duties to the Corporation also impose duties on, or otherwise involve services by, the director to the plan or to participants in or beneficiaries of the plan. The term "director" includes, unless the context requires otherwise, the estate or personal representative of a director. (b) The term "expenses" includes all direct and indirect costs (including without limitation counsel fees, retainers, court costs, transcripts, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, all other disbursements or out-of-pocket expenses) actually incurred in connection with the investigation, defense, settlement or appeal of a proceeding or establishing or enforcing a right to indemnification under this Article, applicable law or otherwise. (c) The term "liability" means the obligation to pay a judgment, settlement, penalty, fine, excise tax (including an excise tax assessed with respect to an employee benefit plan), or reasonable expenses incurred with respect to a proceeding. (d) The term "party" includes an individual who was, is or is threatened to be made a named defendant or respondent in a proceeding. (e) The term "proceeding" means any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and whether formal or informal. IN WITNESS WHEREOF, the undersigned incorporator designated in Article IV executes these Articles of Incorporation and hereby verifies subject to penalties of perjury that the facts contained herein are true. Dated this 20th day of December, 1996. /s/ Angela K. Knowlton ---------------------- EX-3.8 7 file006.txt BYLAWS OF ALLTRISTA PLASTICS CORPORATION. BYLAWS OF ALLTRISTA PLASTICS CORPORATION ARTICLE I RECORDS PERTAINING TO SHARE OWNERSHIP Section 1. Recognition of Shareholders. Alltrista Plastics Corporation (the "Corporation") is entitled to recognize a person registered on its books as the owner of shares of the Corporation as having the exclusive right to receive dividends and to vote those shares, notwithstanding any other person's equitable or other claim to, or interest in, those shares. Section 2. Transfer of Shares. Shares are transferable only on the books of the Corporation, subject to any transfer restrictions imposed by the Articles of Incorporation, these Bylaws, or an agreement among shareholders and the Corporation. Shares may be so transferred upon presentation of the certificate representing the shares, endorsed by the appropriate person or persons, and accompanied by (a) reasonable assurances that those endorsements are genuine and effective, and (b) a request to register the transfer. Transfers of shares are otherwise subject to the provisions of the Indiana Business Corporation Law (the "Act") and Article 8 of the Indiana Uniform Commercial Code. Section 3. Certificates. Each shareholder is entitled to a certificate signed (manually or in facsimile) by the President and the Secretary or an Assistant Secretary, setting forth (a) the name of the Corporation, and that it was organized under Indiana law, (b) the name of the person to whom issued, and (c) the number of shares represented. The Board of Directors shall prescribe the form of the certificate. Section 4. Lost or Destroyed Certificates. A new certificate may be issued to replace a lost or destroyed certificate. Unless waived by the Board of Directors, the shareholder in whose name the certificate was issued shall make an affidavit or affirmation of the fact that his certificate is lost or destroyed, shall advertise the loss or destruction in such manner as the Board of Directors may require, and shall give the Corporation, a bond of indemnity in the amount and form which the Board of Directors may prescribe. ARTICLE II MEETINGS OF THE SHAREHOLDERS Section 1. Annual Meeting. Annual meetings of the shareholders shall be held on such date as may be designated by the Board of Directors. Section 2. Special Meetings. Special meetings of the shareholders may be called by the President or by the Board of Directors. Special meetings of the shareholders shall be called upon delivery to the Secretary of the Corporation of one or more written demands for a special meeting of the shareholders describing the purposes of that meeting and signed and dated by the holders of at least 25% of all the votes entitled to be cast on any issue proposed to be considered at that meeting. Section 3. Notice of Meetings. The Corporation shall deliver or mail written notice stating the date, time, and place of any shareholders' meeting and, in the case of a special shareholders' meeting or when otherwise required by law, a description of the purposes for which the meeting is called, to each shareholder of record entitled to vote at the meeting, at such address as appears in the records of the Corporation and at least 10, but no more than 60, days before the date of the meeting. A shareholders' meeting shall be held at such place, either in or out of the State of Indiana, as may be specified by the Board of Directors in the respective notice for such meeting. Section 4. Waiver of Notice. A shareholder may waive notice of any meeting, before or after the date and time of the meeting as stated in the notice, by delivering a signed waiver to the Corporation for inclusion in the minutes. A shareholder's attendance at any meeting, in person or by proxy (a) waives objection to lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting, and (b) waives objection to consideration of a particular matter at the meeting that is not within the purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented. Section 5. Record Date. The Board of Directors may fix a record date, which may be a future date, for the purpose of determining the shareholders entitled to notice of a shareholders' meeting, to demand a special meeting, to vote, or to take any other action. A record date may not exceed 70 days before the meeting or action requiring a determination of shareholders. If the Board of Directors does not fix a record date, the record date shall be the 10th day prior to the date of the meeting or other action. Section 6. Voting by Proxy. A shareholder may appoint a proxy to vote or otherwise act for the shareholder pursuant to a written appointment form executed by the shareholder or the shareholder's duly authorized attorney-in-fact. An appointment of a proxy is effective when received by the Secretary or other officer or agent of the Corporation authorized to tabulate votes. The general proxy of a fiduciary is given the same effect as the general proxy of any other shareholder. A proxy appointment is valid for 11 months unless otherwise expressly stated in the appointment form. Section 7. Voting Lists. After a record date for a shareholders' meeting has been fixed, the Secretary shall prepare an alphabetical list of all shareholders entitled to notice of the meeting showing the address and number of shares held by each shareholder. The list shall be kept on file at the principal office of the Corporation or at a place identified in the meeting notice in the city where the meeting will be held. The list shall be available for inspection and copying by any shareholder entitled to vote at the meeting, or by the shareholder's agent or attorney authorized in writing, at any time during regular business hours, beginning 5 business days before the date of the meeting through the meeting. The list shall also be made available to any shareholder, or to the shareholder's agent or attorney authorized in writing, at the meeting and any adjournment thereof. Failure to prepare or make available a voting list with respect to any shareholder's meeting shall not affect the validity of any action taken at such meeting. Section 8. Quorum: Approval. At any meeting of shareholders, a majority of the votes entitled to be cast on a matter at the meeting constitutes a quorum. If a quorum is present when a vote is taken, action on a matter is approved if the votes cast in favor of the action exceed the votes cast in opposition to the action, unless a greater number is required by law, the Articles of Incorporation, or these Bylaws. Section 9. Action by Consent. Any action required or permitted to be taken at a shareholders' meeting may be taken without a meeting if the action is taken by all the shareholders entitled to vote on the action. The action must be evidenced by one or more written consents describing the action taken, signed by all the shareholders entitled to vote on the action, and delivered by hand or certified or registered mail, return receipt requested or by facsimile to the Corporation for inclusion in the minutes. If not otherwise determined pursuant to Section 5 of this Article II, the record date for determining shareholders entitled to take action without a meeting is the date the first shareholder signs the consent to such action. Section 10. Presence. Any or all shareholders may participate in any annual or special shareholders' meeting by, or through the use of, any means of communication by which all shareholders participating may simultaneously hear each other during the meeting. A shareholder so participating is deemed to be present in person at the meeting. Section 11. Place of Meetings. Meetings of the shareholders of the Corporation shall be held at such place, either in or out of the State of Indiana, as may be specified by the Board of Directors. ARTICLE III Board of Directors Section 1. Powers and Duties. All corporate powers are exercised by or under the authority of, and the business and affairs of the Corporation are managed under the direction of, the Board of Directors, unless otherwise provided in the Articles of Incorporation. Section 2. Number and Terms of Office: Qualifications. The Corporation shall have 3 directors. Directors are elected at each annual shareholders' meeting and serve for a term expiring at the following annual shareholders' meeting. A director who has been removed pursuant to Section 3 of this Article III ceases to serve immediately upon removal; otherwise, a director whose term has expired continues to serve until a successor is elected and qualifies or until there is a decrease in the number of directors. A person need not be a shareholder or an Indiana resident to qualify to be a director. Section 3. Removal. Any director may be removed with or without cause by action of the shareholders taken at any meeting the notice of which states that one of the purposes of the meeting is removal of the director. Section 4. Vacancies. If a vacancy occurs on the Board of Directors, including a vacancy resulting from an increase in the number of directors, the Board of Directors may fill the vacancy. If the directors remaining in office constitute fewer than a quorum of the Board, the directors remaining in office may fill the vacancy by the affirmative vote of a majority of those directors. Any director elected to fill a vacancy holds office until the next annual meeting of the shareholders and until a successor is elected and qualifies. Section 5. Annual Meetings. Unless otherwise agreed by the Board of Directors, the annual meeting of the Board of Directors shall be held immediately following the annual meeting of the shareholders, at the place where the meeting of shareholders was held, for the purpose of electing officers and considering any other business which may be brought before the meeting. Notice is not necessary for any annual meeting. Section 6. Regular and Special Meetings. Regular meetings of the Board of Directors may be held pursuant to a resolution of the Board of Directors establishing a method for determining the date, time, and place of those meetings. Notice is not necessary for any regular meeting. Special meetings of the Board of Directors may be held upon the call of the President or of any 2 directors and upon 24 hours' written or oral notice specifying the date, time, and place of the meeting. Notice of a special meeting may be waived in writing before or after the time of the meeting. The waiver must be signed by the director entitled to the notice and filed with the minutes of the meeting. Attendance at or participation in a meeting waives any required notice of the meeting, unless at the beginning of the meeting (or promptly upon the director's arrival) the director objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting. Section 7. Quorum. A quorum for the transaction of business at any meeting of the Board of Directors consists of a majority of the number of directors specified in Section 2 of this Article III. If a quorum is present when a vote is taken, action on a matter is approved if the action receives the affirmative vote of a majority of the directors present. Section 8. Action by Consent. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if the action is taken by all directors then in office. The action must be evidenced by one or more written consents describing the action taken, signed by each director, shall be delivered by hand or certified or registered mail, return receipt requested or by facsimile, and included in the minutes. Action of the Board of Directors taken by consent is effective when the last director signs the consent, unless the consent specifies a prior or subsequent effective date. Section 9. Committees. The Board of Directors may create one or more committees and appoint members of the Board of Directors to serve on them. Each committee may have one or more members, who serve at the pleasure of the Board of Directors. The creation of a committee and appointment of members to it must be approved by the greater of (a) a majority of all the directors in office when the action is taken, or (b) the number of directors required under Section 7 of this Article III to take action. All rules applicable to action by the Board of Directors apply to committees and their members. The Board of Directors may specify the authority that a committee may exercise; however, a committee may not (a) authorize distributions, except a committee may authorize or approve a reacquisition of shares if done according to a formula or method prescribed by the Board of Directors, (b) approve or propose to shareholders action that must be approved by shareholders, (c) fill vacancies on the Board of Directors or on any of its committees, (d) amend the Articles of Incorporation, (e) adopt, amend, or repeal these Bylaws, (f) approve a plan of merger not requiring shareholder approval, or (g) authorize or approve the issuance or sale or a contract for the sale of shares, or determine the designation and relative rights, preferences, and limitations of a class or series of shares, except the Board of Directors may authorize a committee to so act within limits prescribed by the Board of Directors. Section 10. Presence. The Board of Directors may permit any or all directors to participate in any annual, regular, or special meeting by any means of communication by which all directors participating may simultaneously hear each other during the meeting. A director so participating is deemed to be present in person at the meeting. Section 11. Compensation. Each director shall receive such compensation for service as a director as may be fixed by the Board of Directors. ARTICLE IV OFFICERS Section 1. Officers. The Corporation shall have a President, a Secretary and a Treasurer and such assistant officers as the Board of Directors or the President designates. The Corporation may have one or more Vice Presidents as may be designated by the Board of Directors. The same individual may simultaneously hold more than one office. Section 2. Terms of Office. Officers are elected at each annual meeting of the Board of Directors and serve for a term expiring at the following annual meeting of the Board of Directors. An officer who has been removed pursuant to Section 4 of this Article IV ceases to serve as an officer immediately upon removal; otherwise, an officer whose term has expired continues to serve until a successor is elected and qualifies. Section 3. Vacancies. If a vacancy occurs among the officers, the Board of Directors may fill the vacancy. Any officer elected to fill a vacancy holds office until the next annual meeting of the Board of Directors and until a successor is elected and qualifies. Section 4. Removal. Any officer may be removed by the Board of Directors at any time with or without cause. Section 5. Compensation. Each officer shall receive such compensation for service in office as may be fixed by the Board of Directors. Section 6. President. The President is the chief executive officer of the Corporation and is responsible for managing and supervising the affairs and personnel of the Corporation, subject to the general control of the Board of Directors. The President presides at all meetings of shareholders and directors. The President, or proxies appointed by the President, may vote shares of other corporations owned by the Corporation. The President has authority to execute, with the Secretary, powers of attorney appointing other corporations, partnerships, or individuals as the agents of the Corporation, subject to law, the Articles of Incorporation, and these Bylaws. The President has such other powers and duties as the Board of Directors may from time to time prescribe. Section 7. Secretary. The Secretary is responsible for (a) attending all meetings of the shareholders and the Board of Directors, (b) preparing true and complete minutes of the proceedings of all meetings of the shareholders, the Board of Directors, and all committees of the Board of Directors, (c) maintaining and safeguarding the books (except books of account) and records of the Corporation, and (d) authenticating the records of the Corporation. If required, the Secretary attests the execution of deeds, leases, agreements, powers of attorney, certificates representing shares of the Corporation, and other official documents by the Corporation. The Secretary serves all notices of the Corporation required by law, the Board of Directors, or these Bylaws. The Secretary has such other duties as the Board of Directors may from time to time prescribe. Section 8. Vice Presidents. The Board of Directors may from time to time designate and elect a Vice President or Vice Presidents who shall have such powers and duties as the Board of Directors may from time to time prescribe. Section 9. Treasurer. The Treasurer is responsible for (a) keeping correct and complete books of account which show accurately at all times the financial condition of the Corporation, (b) safeguarding all funds, notes, securities, and other valuables which may from time to time come into the possession of the Corporation, and (c) depositing all funds of the Corporation with such depositories as the Board of Directors shall designate. The Treasurer shall furnish at meetings of the Board of Directors, or when otherwise requested, a statement of the financial condition of the Corporation. The Treasurer has such other duties as the Board of Directors may from time to time prescribe. Section 10. Assistant Officers. The Board of Directors or the President may from time to time designate and elect assistant officers who shall have such powers and duties as the officers whom they are elected to assist specify and delegate to them, and such other powers and duties as the Board of Directors or the President may from time to time prescribe. An Assistant Secretary may, during the absence or disability of the Secretary, discharge all responsibilities imposed upon the Secretary of the Corporation, including, without limitation, attest the execution of all documents by the Corporation. ARTICLE V MISCELLANEOUS Section 1. Records. The Corporation shall keep as permanent records minutes of all meetings of the shareholders, the Board of Directors, and all committees of the Board of Directors, and a record of all actions taken without a meeting by the shareholders, the Board of Directors, and all committees of the Board of Directors. The Corporation or its agent shall maintain a record of the shareholders in a form that permits preparation of a list of the names and addresses of all shareholders, in alphabetical order showing the number of shares held by each. The Corporation shall maintain its records in written form or in a form capable of conversion into written form within a reasonable time. The Corporation shall keep a copy of the following records at its principal office: (a) the Articles of Incorporation then currently in effect, (b) the Bylaws then currently in effect, (c) minutes of all shareholders' meetings, and records of all actions taken by shareholders without a meeting, for the past 3 years, (d) all written communications to shareholders generally during the past 3 years, including annual financial statements furnished upon request of the shareholders, (e) a list of the names and business addresses of the current directors and officers, and (f) the most recent annual report filed with the Indiana Secretary of State. Section 2. Execution of Contracts and Other Documents. Unless otherwise authorized or directed by the Board of Directors, all written contracts and other documents entered into by the Corporation shall be executed on behalf of the Corporation by the President or his or her designee and, if required, attested by the Secretary or an Assistant Secretary. Section 3. Accounting Year. The accounting year of the Corporation begins on January 1 of each year and ends on the December 31 immediately following. Section 4. Corporate Seal. The Corporation has no seal. ARTICLE VI AMENDMENT These Bylaws may be amended or repealed only by the Board of Directors. The affirmative vote of a majority of all the directors is necessary to amend or repeal these Bylaws. EX-3.9 8 file007.txt AMENDMENT NO. 1 TO BYLAWS AMENDMENT NO. 1 TO BYLAWS OF ALLTRISTA PLASTICS CORPORATION 1. The Bylaws (the "Bylaws") of Alltrista Plastics Corporation, an Indiana Corporation, are hereby amended as follows: Article IV, Sections 1 and 6 of the Bylaws are hereby amended by deleting such sections in their entirety and inserting the following new Sections 1 and 6, respectively, in lieu thereof: "Section 1. Officers. The Corporation shall have a Chief Executive Officer, one or more Presidents, a Secretary, a Treasurer and a Controller and such other assistant officers as the Board of Directors, the Chief Executive Officer, or the President designates. The Corporation may have one or more Vice Presidents as may be designated by the Board of Directors or the Chief Executive Officer. The same individual may simultaneously hold more than one office. Section 6. President. The President is responsible for managing and supervising the affairs and personnel of the Corporation, subject to the general control of the Board of Directors and the Chief Executive Officer. The President has authority to execute, with the Secretary, powers of attorney appointing other corporations, partnerships, or individuals as the agents of the Corporation, subject to law, the Articles of Incorporation, and these Bylaws. The President has such other powers and duties as the Board of Directors and the Chief Executive Officer may from time to time prescribe." Article IV of the Bylaws is hereby amended by adding the following new Sections 11 and 12 at the end thereof: "Section 11. Chief Executive Officer. The Chief Executive Officer shall have general direction of the affairs of the Corporation and general supervision over its several officers, subject, however, to the control of the Board of Directors, and in general shall perform such duties and, subject to the other provisions of these Bylaws, have such powers incident to the office of Chief Executive Officer and perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors. The Chief Executive Officer presides at all meetings of shareholders and directors. The Chief Executive Officer, or proxies appointed by the Chief Executive Officer, may vote shares of other corporations owned by the Corporation. Section 12. Controller. The Controller is responsible for preparing correct and complete books of account which show accurately at all times the financial condition of the Corporation, including, but not limited to the preparation of balance sheets, income statements, statements of cash flows and such other statements as may be required, as well as, budgets and forecasts. The Controller shall furnish to the other officers of the Company and to the board of directors, upon request, statements of the financial condition of the Corporation and such other financial information as requested. The Controller has such other duties as the Treasurer, other officers of the Corporation and the board of directors may from time to time prescribe." 2. Except as amended herein, the Bylaws shall remain unmodified and in full force and effect. The undersigned hereby certifies that the above and foregoing amendment was duly adopted by the unanimous written consent of the directors on June 25, 2002. This 25th day of June, 2002 By: /s/ Ian Ashken Title: Secretary and Treasurer of Alltrista Plastics Corporation EX-3.10 9 file008.txt ARTICLES OF INCORPORATION ARTICLES OF INCORPORATION OF BALL UNIMARK, INC. ARTICLE I Name The name of the corporation is Ball Unimark, Inc. (hereinafter referred to as the "Corporation"). ARTILCE II Purpose The purpose for which the Corporation is formed is to engage in the transaction of any or all lawful business which may be conducted, or for which corporations may be incorporated, under the Indiana Business Corporation law. Article III Registered Office and Registered Agent The street address of the Corporation's initial registered office in the State of Indiana is 345 South High Street, Muncie, Indiana 47305; and the name and street address of its initial registered agent is CT Corporation System, One North Capital Avenue, Indianapolis, Indiana 46204. Article IV Capital Stock Section A. Amount of Capital Stock The total number of shares that may be issued by the Corporation is one thousand (1,000) shares of capital stock without nominal or par value. Section B. Terms All such authorized shares shall be issued as common stock. The shares of common stock shall be identical with each other in all respects. Section C. Issuance of Stock The Board of Directors shall have authority to authorize and direct the issuance by the Corporation of shares of such stock at such times, in such amounts, to such persons or entities, for such consideration, and upon such terms and conditions as it may determine, subject to the restrictions, limitations, conditions and requirements imposed by the provisions of these Articles of Incorporation, by the provisions of the resolutions approving the issuance of shares, or by the provisions of the Indiana Business Corporation Law. In this respect, the Board of Directors of the Corporation may authorize, at its election, the issuance of some or all of the shares of such stock without certificates. Section D. No Preemptive Rights The shareholders shall have no preemptive rights to subscribe to or purchase any additional issues of shares of the capital stock of the Corporation nor any shares of the capital stock of the Corporation purchased or acquired by the Corporation and not cancelled but held as treasury stock. Article V Voting Rights of Capital Stock Each owner of record (as the record date fixed by the Bylaws or the Board of Directors for any such determination of shareholders) of the shares of the stock shall have one (1) vote for each share of stock standing in his, her or its name on the books of the Corporation with respect to each matter to be voted on, including the election of directors and matters referred to the shareholders, in any meeting of the shareholders. No holder of shares of stock shall have any right of cumulative voting. Article VI Name and Address of Incorporator The name and post office address of the incorporator signing the Articles of Incorporation is: NAME POST OFFICE ADDRESS George A. Sissel 345 South High Street, Muncie, Indiana 47305 Article VII Board of Directors Section A. Number of Directors The governing body of the Corporation shall be known as the Board of Directors, and the number of directors comprising the Board of Directors shall be specified in or fixed in accordance with the Bylaws of the Corporation. Section B. Qualifications Directors need not be shareholders of the Corporation. A majority of the directors at any time shall be citizens of the United States. Article VIII Name and Address of Initial Directors The name and post office addresses of the initial members of the Board of Directors are:
Theodore J. Dankovich P.O. Box 2750, Greenville, SC 29602 David C. Faerber U.S. Route 322, Plastics Avenue, Milroy, PA 17063 Donald C. Lewis 345 South High Street, Muncie, Indiana 47305 George A. Sissel 345 South High Street, Muncie, Indiana 47305 Harry B. Ussery P.O. Box 2750, Greenville, SC 29602
Article IX Term of Existence The existence of the Corporation shall be perpetual. Article X Provisions for Regulations of Business and Conduct of Affairs of the Corporation Section A. Indemnification Indemnification of directors, officers and employees shall be as follows: 1. The Corporation shall indemnify each person who is or was a director, officer or employee of the Corporation, or of any other corporation, partnership, joint venture, trust or other enterprise which he is serving or served in any capacity at the request of the Corporation, against any and all liability and reasonable expense that may be incurred by him in connection with or resulting from any claim, action, suit or proceeding (whether actual or threatened, brought by or in the right of the Corporation or such other corporation, partnership, joint venture, trust or other enterprise, or otherwise, civil, criminal, administrative, investigative, or in connection with an appeal relating thereto), in which he may become involved, as a party or otherwise, by reason of his being or having been a director, officer or employee of the Corporation or of such other corporation, partnership, joint venture, trust or other enterprise or by reason of any past or future action taken or not taken in his capacity as such director, officer or employee, whether or not he continues to be such at the time such liability or expense is incurred, provided that such person acted in good faith and in a manner he reasonably believed to be in the best interests of the Corporation or such other corporation, partnership, joint venture, trust or other enterprise, as the case may be, and, in addition, in any criminal action or proceedings, had no reasonable cause to believe that his conduct was unlawful. Notwithstanding the foregoing, there shall be no indemnification (a) as to amounts paid or payable to the Corporation or such other corporation, partnership, joint venture, trust or other enterprise, as the case may be, for or based upon the director, officer or employee having gained in fact any personal profit or advantage to which he was not legally entitled; (b) as to amounts paid or payable to the Corporation for an accounting of profits in fact made from the purchase or sale of securities of the Corporation within the meaning of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any state statutory law; or (c) with respect to matters as to which indemnification would be in contravention of the laws of the State of Indiana or of the United States of America, whether as a matter of public policy or pursuant to statutory provisions. 2. Any such director, officer or employee who has been wholly successful, on the merits or otherwise, with respect to any claim, action, suit or proceeding of the character described herein shall be entitled to indemnification as of right, except to the extent he has otherwise been indemnified. Except as provided in the preceding sentence, any indemnification hereunder shall be granted by the Corporation, but only if (a) the Board of Directors, acting by a quorum consisting of directors who are not parties to or who have been wholly successful with respect to such claim, action, suit or proceeding, shall find that the director, officer or employee has met the applicable standards of conduct set forth in paragraph 1 of this Section A of Article X; or (b) outside legal counsel engaged by the Corporation (who may be regular counsel of the Corporation) shall deliver to the Corporation its written opinion that such director, officer or employee has met such applicable standards of conduct; or (c) a court of competent jurisdiction has determined that such director, officer or employee has met such standards, in an action brought either by the Corporation, or by the director, officer or employee seeking indemnification, applying de novo such applicable standards of conduct. The termination of any claim, action, suit or proceeding, civil or criminal, by judgment, settlement (whether with or without court approval) or conviction or upon a plea of guilty or of nolo contendere, or its equivalent, shall not create a presumption that a director, officer or employee did not meet the applicable standards of conduct set forth in paragraph 1 of this Section A of Article X. 3. As used in this Section A of Article X, the term "liability" shall mean amounts paid in settlement or in satisfaction of judgments or fines or penalties, and the term "expense" shall include, but shall not be limited to, attorneys' fees and disbursements, incurred in connection with the claim, action, suit or proceeding. The Corporation may advance expenses to, or where appropriate may at its option and expense undertake the defense of, any such director, officer or employee upon receipt of an undertaking by or on behalf of such person to repay such expenses if it should ultimately be determined that the person is not entitled to indemnification under this Section A of Article X. 4. The provisions of this Section A of Article X shall be applicable to claims, actions, suits or proceedings made or commenced after the adoption hereof, whether arising from acts or omissions to act occurring before or after the adoption hereof. If several claims, issues or matters of action are involved, any such director, officer or employee may be entitled to indemnification as to some matters even though he is not so entitled as to others. The rights of indemnification provided hereunder shall be in addition to any rights to which any director, officer or employee concerned may otherwise be entitled by contract or as a matter of law, and shall inure to the benefit of the heirs, executors and administrators of any such director, officer or employee. Section B. Meetings The meetings of the shareholders and the directors of the Corporation may be held either within or without the State of Indiana, and at such place as the Bylaws provide. Section C. Books The books of the Corporation may be kept (subject to any provision contained in the Indiana Business Corporation Law or other applicable statutes) outside the State of Indiana at such place or places as may be designated from time to time by the Board of Directors or in the Bylaws of the Corporation. Article XI Amendment The Corporation reserves the right to amend, alter, change or repeal any provision contained in the Articles of Incorporation, in the manner now or hereafter prescribed by the Indiana Business Corporation Law or by the Articles of Incorporation, and all rights conferred upon shareholders herein are granted subject to this reservation. IN WITNESS WHEREOF, the undersigned being of the incorporator of the Corporation executes the Articles of Incorporation and verifies, subject to the penalties of perjury, that the statements contained herein are true. Dated this 31st day of August, 1988. /s/ George A. Sissel -------------------- EX-3.11 10 file009.txt ARTICLES OF AMENDMENT OF ARTICLES OF INCORPORATION EXHIBIT 3.9 ARTICLES OF AMENDMENT OF THE ARTICLES OF INCORPORATION OF BALL UNIMARK, INC. The undersigned officers of Ball Unimark, Inc. (hereinafter referred to as the "Corporation") existing pursuant to the provisions of the Indiana Business Corporation Law as amended (hereinafter referred to as the "Act"), desiring to give notice of corporate action effectuating amendment of certain provisions of its Articles of Incorporation, certify the following facts: ARTICLE I AMENDMENT(S) SECTION 1 The date of incorporation of the corporation is: September 2, 1988 SECTION 2 The name of the corporation following this amendment to the Articles of Incorporation is: ALLTRISTA UNIMARK, INC. SECTION 3 The exact text of Article I of the Articles of Incorporation is now as follows: "The name of the corporation is Alltrista Unimark, Inc. (hereinafter referred to as the "Corporation")." SECTION 4 Date of each amendment's adoption: March 17, 1993 ARTICLE II Manner of Adoption and Vote SECTION 1 Action by Directors: The Board of Directors of the Corporation duly adopted a resolution proposing to amend the terms and provisions of Article(s) I of the Articles of Incorporation and directing a meeting of the Shareholders, to be held on March 17, 1993, allowing such Shareholders to vote on the proposed amendment. The resolution was adopted by Written Consent executed on March 17, 1993, and signed by all members of the Board of Directors. SECTION 2 Action by Shareholders: The Shareholders of the Corporation entitled to vote in respect of the Articles of Amendment adopted the proposed amendment. The amendment was adopted by Written Consent executed on March 17, 1993, and signed by all such Shareholders. SECTION 3 Compliance with Legal Requirements. The manner of the adoption of the Articles of Amendment and the vote by which they were adopted constitute full legal compliance with the provisions of the Act, the Articles of Incorporation, and the By-Laws of the Corporation. I hereby verify subject to the penalties of perjury that the statements contained are true this 17th day of March, 1993. /s/ Thomas B. Clark, Vice President ----------------------------------- EX-3.12 11 file010.txt BYLAWS OF ALLTRISTA UNIMARK, INC. BYLAWS OF BALL UNIMARK, INC. (As of September 6,1988) ARTICLE ONE CAPITAL STOCK SECTION A. CLASSES OF STOCK. The capital stock of the corporation shall consist of shares of such kinds and classes, with such designations and such relative rights, preferences, qualifications, limitations and restrictions, including voting rights, and for such consideration as shall be stated in or determined in accordance with the Articles of Incorporation and any amendment or amendments thereof, or the Indiana Business Corporation Law. Consistent with the Indiana Business Corporation Law, capital stock of the corporation owned by the corporation may be referred to and accounted for as treasury stock. SECTION B. CERTIFICATES FOR SHARES. All share certificates shall be consecutively numbered as issued and shall be signed by the president or a vice president and the corporate secretary or any assistant secretary of the corporation. SECTION C. STOCK WITHOUT CERTIFICATES. Notwithstanding the provisions of Section B of this Article One, the board of directors may authorize, at its election, the issuance of some or all of the shares of capital stock of the corporation without certificates. SECTION D. TRANSFER OF SHARES. The shares of the capital stock of the corporation shall be transferred only on the books of the corporation by the holder thereof, or by his attorney, upon the surrender and cancellation of the stock certificate, whereupon a new certificate shall be issued to the transferee. The transfer and assignment of such shares of stock shall be subject to the laws of the State of Indiana. The board of directors shall have the right to appoint and employ one or more stock registrars and/or transfer agents in the State of Indiana or in any other state. ARTICLE TWO SHAREHOLDERS SECTION A. ANNUAL MEETINGS. The regular annual meeting of the shareholders of the corporation shall be held on the fourth Tuesday in April of each year, or on such other date within a reasonable interval after the close of the corporation's last fiscal year as may be designated from time to time by the board of directors, for the election of the directors of the corporation, and for the transaction of such other business as is authorized or required to be transacted by the shareholders. SECTION B. SPECIAL MEETINGS. Special meetings of the shareholders may be called by the president, by the board of directors or by shareholders holding not less than one-fourth of all of the shares of stock outstanding and entitled by the Articles of Incorporation to vote upon the business to be transacted at such meeting. SECTION C. TIME AND PLACE OF MEETINGS. All meetings of the shareholders shall be held at the principal office of the corporation or at such other place within or without the State of Indiana and at such time as may be designated from time to time by the board of directors. ARTICLE THREE DIRECTORS SECTION A. NUMBER AND TERMS OF OFFICE. The business of the corporation shall be controlled and managed in accordance with the Indiana Business Corporation Law by a board of directors. The initial board of directors shall consist of six (6) members. The initial board of directors shall hold office until the first annual meeting of shareholders. Thereafter, the number of directors which shall constitute the whole board shall be determined by resolution of the board of directors, or by the shareholders at the annual meeting, subject to the limitation that the number may not be less than three (3) or more than nine (9). SECTION B. REGULAR MEETINGS. The regular annual meeting of the board of directors shall be held immediately after the adjournment of each annual meeting of the shareholders. SECTION C. SPECIAL MEETINGS. Special meetings of the board of directors may be called at any time by the chairman of the board or by the board, by giving to each director an oral or written notice setting the time, place and purpose of holding such meetings. SECTION D. TIME AND PLACE OF MEETINGS. All meetings of the board of directors shall be held at the principal office of the corporation, or at such other place within or without the State of Indiana and at such time as may be designated from time to time by the board of directors. SECTION E. NOTICES. Any notice, of meetings or otherwise, which is given or is required to be given to any director may be in the form of oral notice. SECTION F. COMMITTEES. The board of directors is expressly authorized to create committees and appoint members of the board of directors to serve on them, as follows: (1) Temporary and standing committees, including an executive committee, and the respective chairmen thereof, may be appointed by the board of directors, from time to time. The board of directors may invest such committees with such powers and limit the authority of such committees as it may see fit, subject to conditions as it may prescribe. The executive committee shall consist of three or more members of the board. All other committees shall consist of one or more members of the board. All committees so appointed shall keep regular minutes of the transactions of their meetings, shall cause them to be recorded in books kept for that purpose in the office of the corporation, and shall report the same to the board of directors at its next meeting. Within its area of responsibility, each committee shall have and exercise all of the authority of the board of directors, except as limited by the board of directors or by law, and shall have the power to authorize the execution of an affixation of the seal of the corporation to all papers or documents which may require it. (2) Neither the designation of any of the foregoing committees or the delegation thereto of authority shall operate to relieve the board of directors, or any member thereof, of any responsibility imposed by law. SECTION G. LOANS TO DIRECTORS. Except as consistent with the Indiana Business Corporation Law, the corporation shall not lend money to or guarantee the obligation of any director of the corporation. ARTICLE FOUR OFFICERS SECTION A. ELECTION AND TERM OF OFFICE. The officers of the corporation shall be elected by the board of directors at the regular annual meeting of the board, unless the board shall otherwise determine, and shall consist of a president, one or more vice presidents (anyone or more of whom may be designated as a functionally described vice president), a corporate secretary, a treasurer and, if so elected by the board, may include one or more assistant secretaries and assistant treasurers. Each officer shall continue in office until his successor shall have been duly elected and qualified or until removed in the manner hereinafter provided. Vacancies occasioned by any cause in anyone or more of such offices may be filled for the unexpired portion of the term by the board of directors at any regular or special meeting of the board. SECTION B. THE PRESIDENT. The president and his duties shall, at all times, be subject to the control of the board of directors. Nevertheless, but subject to the foregoing limitations, the president shall be the chief executive officer of the corporation, and shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. The president shall have the power to sign and execute all deeds, mortgages, bonds, contracts and other instruments of the corporation as authorized by the board of directors, except in cases where the signing and execution thereof shall be expressly designated by the board of directors or by these bylaws to some other officer, official or agent of the corporation. The president shall perform all duties incident to the office of president and such other duties as are properly required of him by the bylaws. SECTION C. THE VICE PRESIDENTS. The vice presidents shall possess the same power as the president to sign all certificates, contracts and other instruments of the corporation which may be authorized by the board of directors, except where by law the signature of the president is required. All vice presidents shall perform such duties as may from time to time be assigned to them by the board of directors and the president. In the event of the absence or disability of the president, and at the request of the board of directors, the vice presidents in the order designated by the board of directors, shall perform all of the duties of the president, and when so acting they shall have all of the powers of and be subject to the restrictions upon the president and shall act as a member of, or as a chairman of, any standing or special committee of which the president is a member or chairman by designation or ex officio. SECTION D. THE CORPORATE SECRETARY. The corporate secretary of the corporation shall: (1) Keep the minutes of the meetings of the shareholders and the board of directors in books provided for that purpose. (2) See that all notices are duly given in accordance with the provisions of these bylaws and as required by law. (3) Be custodian of the records and of the seal of the corporation, if adopted, and see that the seal is affixed to all documents, the execution of which on behalf of the corporation under its seal is duly authorized in accordance with the provisions of these bylaws. (4) Keep a register of the post office address of each shareholder, which shall be furnished to the corporate secretary at his request by such shareholder, and make all proper changes in such register, retaining and filing his authority for all such entries. (5) See that the books, reports, statements, certificates and all other documents and records required by law are properly kept, filed and authenticated. (6) In general, perform all duties incident to the office of corporate secretary and such other duties as may from time to time be assigned to him by the board of directors. (7) In case of absence or disability of the corporate secretary, the assistant secretaries, in the order designated by the chief executive officer, shall perform the duties of corporate secretary. SECTION E. THE TREASURER. The treasurer of the corporation shall: (1) Give bond for the faithful discharge of his duties if required by the board of directors. (2) Have the charge and custody of, and be responsible for, all funds and securities of the corporation, and deposit all such funds in the name of the corporation in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of these bylaws. (3) At all reasonable times, exhibit his books of account and records, and cause to be exhibited the books of account and records of any corporation a majority of whose stock is owned by the corporation, to any of the directors of the corporation upon application during business hours at the office of this corporation or such other corporation where such books and records are kept. (4) Render a statement of the conditions of the finances of the corporation at all regular meetings of the board of directors, and a full financial report at the annual meeting of the shareholders, if called upon so to do. (5) Receive and give receipts for monies due and payable to the corporation from any source whatsoever. (6) In general, perform all of the duties incident to the office of treasurer and such other duties as may from time to time be assigned to him by the board of directors. (7) In case of absence or disability of the treasurer, the assistant treasurers, in the order designated by the chief executive officer, shall perform the duties of treasurer. ARTICLE FIVE CORPORATE SEAL The corporation shall have a corporate seal, which shall be as follows: A circular disc, on the outer margin of which shall appear the corporate name and State of Incorporation, with the words "Corporate Seal" through the center, so mounted that it may be used to impress these words in raised letters upon paper. Use of the corporate seal shall not be required and shall not affect the validity of any instrument whatsoever. ARTICLE SIX AMENDMENT These bylaws may be altered, added to, amended or repealed by the board of directors of the corporation at any regular or special meeting thereof. EX-3.13 12 file011.txt CERTIFICATE OF LIMITED PARTNERSHIP ALLTRISTA ZINC PRODUCTS, L.P. CERTIFICATE OF LIMITED PARTNERSHIP The undersigned, being the sole general partner of the following partnership, does hereby give notice of and does hereby certify as to the following limited partnership created and existing under the laws of the State of Indiana. 1. Name: Alltrista Zinc Products, L.P. 2. Address of Office: 2500 Old Stage Road Greeneville, Tennessee 37743-8950 3. Name and Address of Agent for Purposes of Service of Process: Alltrista Newco Corporation 345 South High Street, Suite 200 Muncie, Indiana 47307-5004 4. Name and Business Address of Sole General Partner: Alltrista Newco Corporation 345 South High Street, Suite 200 Muncie, Indiana 47307-5004 5. The Latest Date the Partnership Will Dissolve: December 30, 2046 IN WITNESS WHEREOF, the undersigned has executed this Certificate as of the 30th day of December, 1996. ALLTRISTA NEWCO CORPORATION By: /s/ Jerry T. McDowell, President -------------------------------- EX-3.14 13 file012.txt AGREEMENT OF LIMITED PARTNERSHIP ALLTRISTA ZINC PRODUCTS, L.P. AGREEMENT OF LIMITED PARTNERSHIP Article I Formation of Limited Partnership: Name; Principal Place of Business Section 1.1. Formation. Alltrista Newco Corporation, an Indiana corporation, as general partner (the "General Partner"), and Quoin Corporation, a Delaware corporation, as limited partner ("Limited Partner") do hereby form a limited partnership (the "Partnership") under the Indiana Revised Uniform Limited Partnership Act. Section 1.2. Name. The Partnership shall be conducted under the name of Alltrista Zinc Products, L.P. or such other name as the General Partner shall hereafter designate by written notice to the Limited Partner. Section 1.3. Offices and Principal Place of Business. The offices and principal place of business of the Partnership shall be 2500 Old Stage Road, Greeneville, Tennessee 37743-8950, unless changed to such other place as the General Partner may from time to time designate by written notice to the Limited Partner. Section 1.4. Agent for Service of Process. The agent for service of process for the Partnership shall be Alltrista Newco Corporation, 345 South High Street, Suite 200, P.O. Box 5004, Muncie, Indiana 47307-5004, or any successor at any different address as appointed by the General Partner. ARTICLE II Purpose of Partnership The purpose of the Partnership is to manufacture and sell zinc products and to do all things reasonable incident thereto, including, borrowing money for Partnership purposes, and securing such borrowing by mortgages, pledges or other liens. ARTICLE III Term of Partnership The Partnership shall commence with the filing of the Certificate of Limited Partnership with the Indiana Secretary of State, and shall continue until December 30, 2046, unless dissolved sooner by law or as provided hereafter. ARTICLE IV Partners Section 4.1. Names, Addresses and Capital Contributions of Partners. The General Partner and the Limited Partner (both of whom are collectively referred to as "Partners" and individually referred to as "Partner"), their respective addresses, their respective capital contributions to the Partnership and their respective ownership interests in the Partnership ("Percentage Interests") are set forth on Exhibit "A", attached hereto and made a part hereof. Section 4.2. Partner Loans; Capital Contributions; Withdrawals. Loans by any Partner to the Partnership shall not be considered contributions to the capital of the Partnership. No Partner shall be entitled to withdraw any part of its capital contribution or to receive any distribution from the Partnership, except as provided herein; nor shall any Partner be required to make any capital contributions to the Partnership other than the capital contributions required to be made by such Partner under Section 4.1 hereof. No interest shall be paid on any capital contributed to the Partnership. Section 4.3. Limitation on Liability. The Limited Partner shall not be liable for any of the debts of the Partnership, except as provided by law. The Limited Partner shall not be required to loan any funds to the Partnership. The General Partner shall have no personal liability for the repayment of the capital contribution of the Limited Partners. The Limited Partner shall not be required to make any contribution to the Partnership by reason of any negative balance in its Capital Account, nor shall any negative balance in a Partner's Capital Account create any liability on the part of the Partner to any third party. Section 4.4. Admission of Additional Limited Partners. In order to obtain additional funds, the General Partner may admit to the Partnership additional limited partners who will participate in the profits, losses, available cash flow and ownership of the assets of the Partnership on such terms as are determined by the General Partner. Admission of such additional limited partner(s) may result in a reduction of the interests of the Limited Partner. ARTICLE V Accounting and Records Section 5.1. Records and Accounting. The books and records of the Partnership shall be kept, and the financial position and the results of its operations recorded, on an accrual basis and in accordance with the accounting methods followed for federal income tax purposes. The books and records of the Partnership shall reflect all Partnership transactions and shall be appropriate and adequate for the Partnership's business. The fiscal year of the Partnership for financial reporting and for federal income tax purposes shall be the calendar year. Section 5.2. Access to Accounting Records. All books and records of the Partnership shall be maintained at the offices of the Partnership or at the Partnership's principal place of business, and the Limited Partner shall have access to them at the offices of the Partnership and the right to inspect and copy them at reasonable times. Section 5.3. Annual and Tax Information. The General Partner shall use all reasonable efforts to deliver to each Partner (a) within ninety (90) days after the end of each fiscal year all information necessary for the preparation of each Partner's federal income tax return; and (b) within one hundred twenty (120) days after the end of each fiscal year a financial report of the Partnership for such fiscal year, containing a balance sheet as of the last day of the year then ended; an income statement for the year then ended, a statement of sources and applications of funds, a statement of reconciliation of the capital accounts of the Partners, and a report of the activities of the Partnership during the period covered by the report. Section 5.4. Accounting Decisions. All decisions as to accounting matters, except as otherwise specifically set forth herein, shall be made by the General Partner. The General Partner may rely upon the advice of its accountants as to whether such decisions are in accordance with accounting methods followed for federal income tax purposes. Section 5.5. Tax Matters Partner. The General Partner is hereby designated the "Tax Matters Partner" of the Partnership, as that term is defined in Section 6231 of the Code (as hereinafter defined). Section 5.6. Federal Income Tax Elections. The General Partner of the Partnership may make all elections for federal income tax purposes, including the following: (a) To the extent permitted by applicable law and regulations, elect to use an accelerated depreciation method on each depreciable unit of the assets of the Partnership. (b) In case of a transfer of all or part of the Partnership interest of any Partner, the Partnership may elect, pursuant to Section 734, 743 and 754 of the Code (or corresponding provision of future law), to adjust the basis of the assets of the Partnership. ARTICLE VI Profits and Capital Section 6.1. Allocation of Profits from Operations and Capital Transactions. After giving effect to the special allocations se forth in Section 6.3, Profits shall be allocated in the following order: (a) First, if any Losses have been allocated to the Partners pursuant to Section 6.2, then Profits shall be first allocated to the Partners in the same proportion as such Losses were allocated, until each Partner's Capital Account equals what it would have been had there been no such allocations of Losses. (b) Second, Profits shall be allocated 99.00% to the Limited Partner and 1.00% to the General Partner. Section 6.2. Allocation of Losses from Operations and Capital Transactions. After giving effect to the special allocations set forth in Section 6.3, Losses shall be allocated in the following order: (a) First, if any Profit has been allocated to the Partners pursuant to Section 6.1, then Losses shall first be allocated to the Partners in the same proportion as such Profits were allocated, until Partner's Capital Account equals what it would have been had there been no such allocation of Profits. (b) Second, Losses shall be allocated 99.00% to the Limited Partner and 1.00% to the General Partner. Section 6.3. Special Allocations. The following special allocations shall be made in the following order: (a) Minimum Gain Chargeback. Except as otherwise provided in Treasury Section 1.704-2(f), if in any fiscal year or other period there is a net decrease in the amount of the Partnership Minimum Gain, then each Partner shall first be allocated items of income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Partner's share of the net decrease in such Partnership Minimum Gain during such year (as determined under Treasury regulation Section 1.704-2(g)(2)); provided, however, if there is insufficient income and gain to make the allocation specified above for all Partners for such year, the income and gain shall be allocated among the Partners in proportion to the respective amount they would have been allocated had there been an unlimited amount of income and gain for such year. (b) Partner Minimum Gain Chargeback. Except as otherwise provided in Treasury Regulation Section 1.704-2(i)(4), if in any year there is a net decrease in the amount of the Partner Nonrecourse Debt Minimum Gain, then each Partner shall first be allocated times of income and gain for such year (and, if necessary, subsequent years) in an amount equal to such Partner's share of the net decrease in such Partner Nonrecourse Debt Minimum Gain (as determined under Treasury Regulation Section 1.704-2(i)(4)); provided; however, if there is sufficient income and gain in a year to make the allocation specified above for all Partners for such year, the income and gain shall be allocated among the Partners in proportion to the respective amounts they would have been allocated had there been an unlimited amount of income and gain for such year. (c) Qualified Income Offset. In the event that any Limited Partner unexpectedly receives any adjustments, allocations, or distributions described in Treasury Regulation Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), income and gain shall be specially allocated to each such Limited Partner in an amount and manner sufficient to eliminate, to the extent required by the Treasury Regulations, the Capital Account deficit of such Limited Partner as quickly as possible. (d) Limited on Loss Allocations. Notwithstanding the provisions of Sections 6.1 and 6.2 and except as otherwise provided in this Section 6.3, Losses allocated pursuant to Sections 6.2(a) and 6.2(b) shall not be allocated to the Limited Partner if and to the extent that such allocation would cause, as of the end of the Partnership taxable year, the negative balance in such Limited Partner's Capital Account to exceed the amount of such Limited Partner's share of Partnership Minimum Gain plus the amount of such Limited Partner's share of Partner Nonrecourse Debt Minimum Gain, if any, plus the amount of such Limited Partner's obligation, if any, to restore a deficit balance in its Capital Account. Any losses which are not allocated to the Limited Partners by virtue of the application of this Section 6.3(d) shall be allocated to the General Partner. (e) Nonrecourse Deductions. Nonrecourse Deductions for any fiscal year shall be specially allocated among the Partners in proportion their Percentage Interests as provided under Treasury Regulation Section 1.704-2(e). (f) Partner Nonrecourse Deductions. Any Partner Nonrecourse Deductions for any fiscal year shall be specially allocated to the Partner who bears the economic risk of loss with respect to the Partner Nonrecourse Debt to which such Partner Nonrecourse Deductions are attributable in accordance with Treasury Regulation Section 1.704-2(i)(1). (g) Curative Allocations. The allocations set forth in this Section 6.3 (the "Regulatory Allocations") are intended to comply with certain requirements of Treasury Regulation Sections 1.704-1 and 1.704-2. In the event that Profits and Losses are allocated pursuant to Section 6.3, subsequent Profits and Losses (or items thereof) will first be allocated (subject to Section 6.3) to the Partners in a manner which will result in each Partner having a Capital Account balance equal to that which would have resulted had the Regulatory Allocations not occurred. Section 6.4. Other Allocation Rules. Notwithstanding the foregoing provisions of this Article VI: (a) For federal income tax purposes, income, gain, loss and deduction with respect to property which has a variation between its basis computed in accordance with Treasury Regulation Section 1.704-1(b) and its basis computed for federal income tax purposes shall be shared among Partners so as to take account of such variation in a manner consistent with the principles of Section 704(c) of the Code and Treasury Regulation Section 1.704-1(b)(2)(iv)(g). (b) Whenever a proportionate part of Partnership profit or loss is credited or charged to a Partner's Capital Account, every item of income, gain, loss, deduction, credit or tax preference entering into the computation of such profit or loss, or applicable to the period during which such profit or loss was realized, shall be considered credited or charged, as the case may be, to such Partner's Capital Account in the same proportion. (c) In the event of an increase or a decrease in the interest of a Partner at any time after the Partnership's initial fiscal year other than at the end of a fiscal year of the Partnership, the share of the Profits and Losses, tax credits and the Cash Flow of the Partnership shall be allocated among the persons whose shares are changed in the same ratio as the number of days in such Partnership fiscal year before and after the date of such transfer, except that Capital Transaction Profits and Losses and proceeds shall be allocated and distributed to the person or entity who is a Partner as of the date of such event. (d) An individual Capital Account shall be established and maintained for each Partner, including any additional or substituted Partner who shall hereafter receive an interest in the Partnership. The original Capital Account established for each such substituted Partner shall be in the same amount as, and shall replace, the Capital Account of the Partner which such substituted Partner succeeds, and, for the purposes of this Agreement, such substituted Partner shall be deemed to have made the capital contribution, to the extent actually paid in, of the Partner which such substituted Partner succeeds. The term "substituted Partner", as used in this Section 6.4(d), shall mean a person who shall become entitled to receive a share of the Profits, Losses, tax credits and distributions of the Partnership by reason of such person succeeding to the interest in the Partnership of a Partner by assignment of all or any part of a Partner's interest in the Partnership. To the extent a substituted Partner receives less than 100% of the interest in the Partnership of a Partner he succeeds, the original Capital Account of such substituted Partner and his capital contribution shall be in proportion to the interest he receives and the Capital Account of the Partner who retains a partial interest in the Partnership and his capital contribution shall continue, and not be replaced, in proportion to the interest he retains. Nothing in this Section 6.4(d) shall affect the limitations on transferability of interests in the Partnership set forth in Articles VIII and IX. Section 6.5. Non-Liquidating Distributions. The General Partner shall determine the amount, if any, of Cash Flow and proceeds from Capital Transactions that shall be distributed to the Partners. Any amount distributed under this Section 6.5 shall be distributed 99.00% to the Limited Partner and 1.00% to the General Partner. Section 6.6. Distributions in Liquidation. (a) Upon dissolution and termination, after payment of, or adequate provision for, the debts and obligations of the Partnership (including to Partners to the extent otherwise permitted by law), the remaining assets of the Partnership (or the proceeds of sales or other dispositions in liquidation of the Partnership assets, as may be determined by the General Partner) shall be distributed to the Partners in accordance with the positive balances in their Capital Accounts after taking into account all Capital Account adjustments for the Partnership taxable year, including adjustments to Capital Accounts pursuant to Section 6.1, Section 6.2 and Section 6.6(b). In the event that a General Partner has a deficit balance in his or its Capital Account following the liquidation of the Partnership or his or its interest in the Partnership, as determined after taking into account all Capital Account adjustments for the Partnership taxable year in which such liquidation occurs, such General Partner shall pay to the Partnership in cash an amount equal to the deficit balance in his or its Capital Account by the end of such taxable year (or, if later, within ninety (90) days after the date of such liquidation) which amount shall, upon liquidation of the Partnership, be paid to recourse creditors of the Partnership or distributed to other Partners in accordance with the positive balances in their Capital Accounts. (b) With respect to assets distributed in kind to the Partners in liquidation or otherwise, (i) any unrealized appreciation or unrealized depreciation in the values of such assets shall be deemed to be profits and losses realized by the Partnership immediately prior to the liquidation or other distribution event; and (ii) such Profits and Losses shall be allocated to the Partners in accordance with Section 6.1 and Section 6.2 and any property so distributed shall be treated as a distribution of an amount in cash equal to the excess of such fair market value over the outstanding principal balance of and accrued interest on any debt by which the property is encumbered. For the purposes of this Section 6.6(b ), "unrealized appreciation" or "unrealized depreciation" shall mean the difference between the fair market value of such assets, taking into account the fair market value of the associated financing but subject to Section 7701(g) of the Code, and the adjusted basis of such assets as computed under the principles of Treasury Regulation Section 1.704-1 (b). This Section 6.6(b) is merely intended to provide a rule for allocating unrealized gains and losses upon liquidation or other distribution event, and nothing contained in this Section 6.6(b) or elsewhere in this Agreement is intended to treat or cause such distributions to be treated as sales for value. The fair market value of such assets shall be determined by an appraiser to be selected by the General Partner. Section 6.7. Definitions. (a) "Capital Account" means, with respect to any Partner, the capital account maintained with respect to such Partner consisting of (1) the amount of cash such Partner has contributed to the Partnership, plus (2) the fair market value of any property such Partner has contributed to the Partnership net of liabilities assumed by the Partnership or to which such property is subject, plus (3) the amount of Profits and tax-exempt income allocated to such Partner, less (4) the amount of Losses allocated to such Partner, less (5) the amount of all cash distributed to such Partner, less (6) the fair market value of any property distributed to such Partner net of liabilities assumed by such Partner or to which such property is subject, less (7) such Partner's share of any other expenditures which are not deductible by the Partnership for federal income tax purposes or which are not allowable as additions to the basis of Partnership property, and (8) shall otherwise be subject to such other adjustments as may be required under the Code and Treasury Regulation Section 1.704-1(b)(2)(iv). (b) "Capital Transactions" means the proceeds of the sale, refinancing, exchange, condemnation, destruction (including insurance proceeds in excess of amounts required to be applied to restore the insured property) or other disposition of all or any substantial part of the Partnership's property. (c) "Cash Flow" means the net operating profits or losses of the Partnership, including as expenses all fees paid to the General Partner and its affiliates, (1) increased by depreciation and other charges not requiring the expenditure of revenue from operations; and (2) reduced by (a) debt amortization; (b) reasonable reserves for working capital, contingencies, anticipated expenses, capital improvements and replacements; and (c) expenditures for capital improvements and replacements in excess of reserves. "Cash Flow" does not include cash from capital transactions. Cash Flow shall be determined separately for each fiscal year of the Partnership. (d) "Code" means the Internal Revenue Code of 1986, as amended, as it may be further amended from time to time. (e) "Partner Nonrecourse Debt" means any Nonrecourse Liability (as defined in Treasury Regulation Section 1.752-1(a)(2)) of the Partnership for which any Partner or Related Person bears the economic risk of loss under Treasury Regulation Section 1.752-2. (f) "Partner Nonrecourse Debt Minimum Gain" means an amount with respect to each Partner Nonrecourse Debt, equal to the Partnership Minimum Gain that would result if such Partner Nonrecourse Debt were treated as Partnership Nonrecourse Liability, determined in accordance with Treasury Regulations Section 1.704-2(i)(3). (g) "Partner Nonrecourse Deductions" has the meaning set forth in Treasury Regulations Sections 1.704-2(i)(1) and 1.704-2(i)(2). (h) "Partnership Minimum Gain" shall mean the amount computed under Treasury Regulation Section 1.704-2(d)(1) with respect to the Partnership's nonrecourse liabilities. (i) "Partnership Non-Recourse Liability" means any Partnership liability (or portion thereof) for which no Partner or Related Person bears the economic risk of loss as defined in Treasury regulation Section l.704-2(b )(3). (j) "Percentage Interest" means with respect to the General Partner, 1.00% and with respect to the Limited Partners, 99.00%. (k) "Profits and Losses" means the Partnership's taxable income and losses, and each item of income, gain, loss, deduction or credit entering into the computation thereof, as determined in accordance with Section 703(a) of the Code except that for this purpose (1) al items of income, gain, deduction or loss required to be separately stated by Section 703(a)(1) of the code shall be included in taxable income or loss; (2) tax exempt income shall be added to taxable income or loss; (3) any expenditures described in Section 705(a)(2)(B) of the Code (or treated as Section 705(a)(2)(B) expenditures) and not otherwise taken into account in computing taxable income or loss shall be subtracted; and (4) taxable income or loss shall be adjusted to reflect any item of income or loss specifically allocated in Article VI hereof. (l) "Qualified Income Offset Item" means (1) an allocation of Loss or deduction that, as of the end of each year, reasonably is expected to be made (a) pursuant to Section 704(e)(2) of the Code to a donee of an interest in the Partnership, (b) pursuant to Section 706(d) of the Code as the result of a change in any Partner's interest in the Partnership, or (c) pursuant to Treasury Regulation Section 1.751-1(b)(2)(ii) as the result of a distribution by the Partnership of unrealized receivables or inventory items, and (2) a distribution that, as of the end of such year, reasonably is expected to be made to a Partner to the extent it exceeds offsetting increases to such Partner's Capital Account which reasonably are expected to occur during or prior to the Partnership taxable year in which such distribution reasonably is expected to occur. (m) "Related Person" means a person related to a Partner within the meaning of Treasury Regulation Section 1.752-4(b). ARTICLE VII Management and Control of Business Section 7.1. Duties of General Partner. The General Partner shall have the exclusive management and control of the business of the Partnership and shall diligently and faithfully devote such time to the business of the Partnership as may be necessary to conduct it for the greatest advantage of the Partnership and shall render to the Partners, whenever reasonably requested by any of them, a just and faithful account of all dealings and transactions in relation to the business of the Partnership. The General Partner may delegate any of its duties under this Agreement to any related person, firm or corporation, provided that the General Partner shall continue to be primarily responsible for the performance of such duties. The General Partner or any of its affiliates may engage in other activities of the same nature and other business activities of any nature. Section 7.2. Powers of General Partner. The General Partner shall have all necessary powers to carry out the purposes, business and objectives of the Partnership, including the right to enter into and carry out contracts of all kinds; to employ agents, employees, consultants and advisors on behalf of the Partnership; to lend or borrow money and to issue evidences of indebtedness; to bring and defend actions in law or at equity; to buy, own, manage, sell, lease, mortgage, pledge or otherwise acquire or dispose of Partnership property (including without limitation future capital contributions); and to determine the amount of Cash Flow from time to time as provided in Section 6.7(c). The General Partner may deal with any related person, firm or corporation on terms and conditions that would be available from an independent responsible third party that is willing to perform. The General Partner is specifically empowered on behalf of the Partnership to acquire the Properties and to borrow any funds necessary to pay the costs thereof. Section 7.3. Reimbursement of Expenses. The General Partner shall be entitled to reimbursement from the Partnership of all expenses of the Partnership reasonably incurred and paid by it on behalf of the Partnership. Section 7.4. Organizational Expenses. The Partnership shall pay all expenses incurred in the organization of the Partnership. Section 7.5. Limitations on Limited Partner. The Limited Partner shall not participate in the management or control of the Partnership's business, nor shall they transact any business for the Partnership, nor shall they have the power to sign for or bind the Partnership. Section 7.6. Limitation of Liability. The General Partner shall not be liable to the Limited Partners for any act or omission by it in good faith and in a manner reasonably believed by it to be within the scope of its authority. The General Partner shall only be liable for actual fraud, willful misconduct, or gross negligence. Any action or omission on advice of counsel for the Partnership shall be deemed as having been taken in good faith. ARTICLE VIII Changes in General Partner Section 8.1. Withdrawal of the General Partner. The General Partner may voluntarily withdraw from the Partnership or sell, assign or otherwise transfer its rights and duties hereunder, provided that the transferee must accept all of the duties of the General Partner hereunder. The General Partner may assign its economic interest in the Partnership without the assignee assuming the duties of the General Partner. Section 8.2. Removal of a General Partner. The General Partner may not be removed, except for willful or wanton disregard of its duties or gross negligence. Prior to undertaking any such removal of the General Partner, the Limited Partner shall provide written notice to the General Partner of any such default constituting cause for removal and shall allow the General Partner a period of thirty (30) days after such notice to cure the default prior to effecting any removal of the General Partner. After any such removal, such General Partner interest shall become a Limited Partners interest herein. At any time after a removal of a General Partner, the removed General Partner shall have the right, upon delivery of a notice to such effect to the Partnership, to cause the Partnership to be dissolved as quickly as practicable, with its assets to be disposed of and its affairs wound up with the proceeds from the liquidation of the Partnership's assets to be distributed in the manner provided in Section 6.6 hereof. Upon any removal of a General Partner, the Partnership must promptly pay to the removed General Partner all amounts then accrued and owing to the removed General Partner. A General Partner so removed will not be liable for any obligations of the Partnership after the effective date of its removal. If, after any such removal, there shall be no General Partner having a sufficient interest in the Partnership to cause the Partnership to continue to be treated as a partnership under the Code and as a limited partnership under the Uniform Act (as determined by independent legal counsel for the Partnership), all Partnership Interests shall be reduced proportionately in accordance with the then existing percentages for allocation of profits and losses so that the successor General Partner will have the requisite interest in the Partnership pursuant to the Code and the Uniform Act. Section 8.3. Admission of Additional Partners. Additional General Partners may only be admitted to the Partnership with the unanimous written consent of all the Partners. ARTICLE IX Transfers of Limited Partnership Interests Section 9.1. Transfer and Assignment of Limited Partnership Interest. No Limited Partner shall assign, convey, sell, encumber or in any way alienate all or any part of its interest in the Partnership. Any attempted transfer of a limited partnership interest shall be null and void. ARTICLE X Termination Section 10.1. Dissolution. The Partnership shall be dissolved, its assets shall be disposed of and its affairs wound up on the first to occur of the following: (a) A determination by the General Partner that the Partnership should be dissolved; (b) The General Partner shall dissolve, liquidate, or be adjudicated a bankrupt; (c) Sale of all or substantially all of the assets of the Partnership; or (d) The expiration of the Partnership term. (e) The voluntary or involuntary withdrawal of a General Partner. The proceeds from the liquidation of the Partnership assets shall be distributed in the manner provided in Section 6.6. Section 10.2. Continuation. Upon the bankruptcy, dissolution or withdrawal of a General Partner, the business of the Partnership will be continued if within ninety (90) calendar days the remaining Partners elect by written action to continue the business of the Partnership and, to the extent that they desire or if there are no remaining General Partners, agree to the appointment, effective as of the date of the bankruptcy, dissolution or withdrawal, of a new General Partner of the Partnership. If the business of the Partnership is continued, the interest of the General Partner will be converted to that of a limited partner. If the Limited Partners fail to continue the Partnership's business as provided in this Section 10.2, the Partnership will be liquidated under Section 6.6. ARTICLE XI General Section 11.1. Counterparts. This Agreement may be signed by each party hereto upon a separate copy, in which event all such copies shall constitute a single counterpart of this Agreement. Section 11.2. Indemnification of General Partner. (a) The Partnership shall indemnify the General Partner and any of its employees or agents, against any loss or threat of loss as a result of any claim or legal proceeding related to the performance or nonperformance of any act concerning the activities of the Partnership; provided, however, that the General Partner or the employee or agent of the Partnership against whom claim is made or the legal proceeding is directed, was not guilty of fraud, gross negligence or bad faith in such performance or nonperformance and provided, further, that this obligation to indemnify the General Partner shall apply to claims or legal proceedings against the General Partner by one or more Limited Partners. (b) It is the intent of this Section 11.2 to empower the Partnership to provide indemnification to the fullest extent possible as long as such indemnification is not prohibited by law or by the express terms of this Section 11.2. Therefore, indemnification may be provided irrespective of the nature of the legal or equitable theory upon which a claim is made, including but not limited to, whether or not the person to be indemnified is charged with negligence, breach of contract, breach of warranty, strict liability, or any violation of federal or state securities law. The provisions of this Section 11.2 shall not limit any other rights of indemnification to which the General Partner otherwise may be entitled by law. (c) The indemnification authorized by this Section 11.2 shall include payment of (1) reasonable attorney's fees or other expenses incurred in settling any claim or threatened action or incurred in any finally adjudicated legal proceeding; and (2) the removal of any liens affecting any property of the indemnitee. Indemnification shall be made from assets of the Partnership, but neither the General Partner nor any Limited Partners shall be personally liable to any indemnitee. This Section 11.2 shall inure to the benefit of the General Partner, its members, managers, employees and agents, the employees and agents of the Partnership, and their respective heirs, executors, administrators, successors and assigns. Section 11.3. Amendment. This Agreement may be amended at any time by the General Partner by written notice to the Limited Partners; provided, however, that any such amendment shall not reduce the interest of any Partner in the profits and losses, Cash Flow or other distributions of the Partnership without obtaining the prior written consent of that Partner. Upon amendment of this Agreement, the Certificate of Limited Partnership shall also be amended, if necessary, to reflect such change. Section 11.4. Conflict With Indiana Revised Uniform Limited Partnership Act. In the event of a conflict between this Agreement and the Indiana Revised Uniform Limited Partnership Act, it is the intention of the parties hereto that this Agreement shall prevail to the fullest extent permitted by law. [SIGNATURES BEGIN ON FOLLOWING PAGE] IN WITNESS WHEREOF, the undersigned Partners have executed this Agreement effective as of the 1st day of January, 1997. GENERAL PARTNER ALLTRISTA NEWCO CORPORATION, an Indiana corporation By: /s/ Jerry T. McDowell, President -------------------------------- QUOIN CORPORATION, an Delaware corporation By: /s/ Monte L. Miller, President ------------------------------ ALLTRISTA ZINC PROPERTIES, L.P. AGREEMENT OF LIMITED PARTNERSHIP Exhibit A
Initial Capital Name and Address Percentage Interest Contributions - ---------------- ------------------- ---------------- 1. GENERAL PARTNER ALLTRISTA NEWCO CORPORATION 1.00% $1.00 345 South High Street, Suite 200 P.O. Box 5004 Muncie, Indiana 47307-5004 2. LIMITED PARTNER QUOIN CORPORATION Suite 1100 99.0% $99.00 300 South Fourth Street Las Vegas, NY 89101 TOTAL 100.00% $100.00
EX-3.15 14 file013.txt ARTICLES OF INCORPORATION ARTICLES OF INCORPORATION OF CASPERS TIN PLATE COMPANY The undersigned, LAWRENCE M. GILL, 208 South LaSalle Street, Chicago, Illinois, being one or more natural persons of the age of twenty-one years or more or a corporation, and having subscribed to shares of the corporation to be organized pursuant hereto, for the purpose of forming a corporation under "The Business Corporation Act" of the State of Illinois, do hereby adopt the following Articles of Incorporation: ARTICLE ONE The name of the corporation hereby incorporated is CASPERS TIN PLATE COMPANY. ARTICLE TWO The address of its initial registered office in the State of Illinois is 208 South LaSalle Street, in the City of Chicago, (60604) County of Cook and the name of its initial Registered Agent at said address is C T Corporation System. ARTICLE THREE The duration of the corporation is Perpetual. ARTICLE FOUR The purpose or purposes for which the corporation is organized are: To engage in the business of metal lithography. To manufacture, buy, sell and deal in and with goods, wares, merchandise and property of whatsoever kind and description. To acquire, own, use, convey, and otherwise dispose of and deal in real property or any interest therein. To erect, own, operate, manage, use or lese, in whole or in part, any building or other structure located on real property owned or leased by the Corporation. ARTICLE FIVE PARAGRAPH 1: The aggregate number of shares which the corporation is authorized to issue is 20,000 divided into one class. The designation of each class, the number of shares of each class, and the par value, if any, of the shares of each class, or a statement that the shares of any class are without par value, are as follows:
Series Number of Par value per share or statement that shares Class (If any) Shares are without par value Common None 20,000 $1.00
PARAGRAPH 2: The preferences, qualifications, limitations, restrictions and the special or relative rights in respect of the shares of each class are: ARTICLE SIX The class and number of shares which the corporation proposes to issue without further report to the Secretary of State, and the consideration (expressed in dollars) to be received by the corporation therefor, are:
Total consideration to be Class of shares Number of shares received therefor: Common 1,000 $1,000.00
ARTICLE SEVEN The corporation will not commence business until at least one thousand dollars has been received as consideration for the issuance of shares. ARTICLE EIGHT The number of directors to be elected at the first meeting of the shareholders is: three. ARTICLE NINE PARAGRAPH 1: It is estimated that the value of all property to be owned by the corporation for the following year wherever located will be $______________ . PARAGRAPH 2: It is estimated that the value of all property to be located within the State of Illinois during the following year will be $______________ . PARAGRAPH 3: It is estimated that the gross amount of business which will be transacted by the corporation during the following year will be $______________ . PARAGRAPH 4: It is estimated that the gross amount of business which will be transacted at or from places of business in the State of Illinois during the following year will be $______________ . NOTE: The incorporator elects to pay the initial franchise tax on the basis of its entire stated capital and paid-in surplus. /s/ Lawrence M. Gill -------------------- LAWRENCE M. GILL, Incorporator EX-3.16 15 file014.txt BYLAWS OF CASPERS TIN PLATE COMPANY. BY-LAWS OF CASPERS TIN PLATE COMPANY ARTICLE I OFFICES The principal office of the corporation in the State of Illinois shall be located in the City of Chicago and County of Cook. The corporation may have such other offices, either within or without the State of Illinois, as the business of the corporation may require from time to time. The registered office of the corporation required by The Business Corporation Act to be maintained in the State of Illinois may be, but need not be, identical with the principal office in the State of Illinois, and the address of the registered office may be changed from time to time by the board of directors. ARTICLE II SHAREHOLDERS SECTION 1. ANNUAL MEETING. The annual meeting of the shareholders shall be held on the second Tuesday in April in each year, beginning with the year 1973, at the hour of 10:00 A.M., for the purpose of electing directors and for the transaction of such other business as may come before the meeting. If the day fixed for the annual meeting shall be a legal holiday, such meeting shall be held on the next succeeding business day. If the election of directors shall not be held on the day designated herein for any annual meeting, or at any adjournment thereof, the board of directors shall cause the election to be held at a meeting of the shareholders as soon thereafter as conveniently may be. SECTION 2. SPECIAL MEETINGS. Special meetings of the shareholders may be called by the president, by the board of directors or by the holders of not less than one-fifth of all the outstanding shares of the corporation. SECTION 3. PLACE OF MEETING. The board of directors may designate any place, either within or without the State of Illinois, as the place of meeting for any annual meeting or for any special meeting called by the board of directors. A waiver of notice signed by all shareholders may designate any place, either within or without the State of Illinois, as the place for the holding of such meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the registered office of the corporation in the State of Illinois, except as otherwise provided in section 5 of this article. SECTION 4. NOTICE OF MEETINGS. Written or printed notice stating the place, day and hour of the meeting, and in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten nor more than forty days before the date of the meeting, or in the case of a merger or consolidation not less than twenty nor more than forty days before the meeting, either personally or by mail, by or at the direction of the president, or the secretary, or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the shareholder at his address as it appears on the records of the corporation, with postage thereon prepaid. SECTION 5. MEETING OF ALL SHAREHOLDERS. If all of the shareholders shall meet at any time and place, either within or without the State of Illinois, and consent to the holding of a meeting at such time and place, such meeting shall be valid without call or notice, and at such meeting any corporate action may be taken. SECTION 6. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders, or shareholders entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purpose, the board of directors of the corporation may provide that the stock transfer books shall be closed for a stated period but not to exceed, in any case, forty days. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten days, or in the case of a merger or consolidation, at least twenty days, immediately preceding such, meeting. In lieu of closing the stock transfer books, the board of directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than forty days and, for a meeting of shareholders, not less than ten days, or in the case of a merger or consolidation not less than twenty days, immediately preceding such meeting. If the stock transfer books are not closed and no record date is fixed for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders, or shareholders entitled to receive payment of a dividend, the date on which notice of the meeting is mailed or the date on which the resolution of the board of directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of shareholders. SECTION 7. VOTING LISTS. The officer or agent having charge of the transfer books for shares of the corporation shall make, at least ten days before each meeting of shareholders, a complete list of the shareholders entitled to vote at such meeting, arranged in alphabetical order, with the address of and the number of shares held by each, which list, for a period of ten days prior to such meeting, shall be kept on file at the registered office of the corporation and shall be subject to inspection by any shareholder at any time during usual business hours. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting. The original share ledger or transfer book, or a duplicate thereof kept in this State, shall be prima facie evidence as to who are the shareholders entitled to examine such list or share ledger or transfer book or to vote at any meeting of shareholders. SECTION 8. QUORUM. A majority of the outstanding shares of the corporation, represented in person or by proxy, shall constitute a quorum at any meeting of shareholders; provided, that if less than a majority of the outstanding shares are represented at said meeting, a majority of the shares so represented may adjourn the meeting from time to time without further notice. If a quorum is present, the affirmative vote of the majority of the shares represented at the meeting shall be the act of the shareholders, unless the vote of a greater number or voting by classes is required by The Business Corporation Act, the articles of incorporation or these by-laws. SECTION 9. PROXIES. At all meetings of shareholders, a shareholder may vote by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. Such proxy shall be filed with the secretary of the corporation before or at the time of the meeting. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy. SECTION 10. VOTING OF SHARES. Subject to the provisions of section 12 of this article, each outstanding share, regardless of class, shall be entitled to one vote upon each matter submitted to vote at a meeting of shareholders. SECTION 11. VOTING OF SHARES BY CERTAIN HOLDERS. Shares standing in the name of another corporation, domestic or foreign, may be voted by such officer, agent, or proxy as the by-laws of such corporation may prescribe, or, in the absence of such provision, as the board of directors of such corporation may determine. Shares standing in the name of a deceased person, a minor ward or an incompetent person, may be voted by his administrator, executor, court appointed guardian or conservator, either in person or by proxy without a transfer of such shares into the name of such administrator, executor, court appointed guardian or conservator. Shares standing in the name of a trustee may be voted by him, either in person or by proxy. Shares standing in the name of a receiver may be voted by such receiver, and shares held by or under the control of a receiver may be voted by such receiver without the transfer thereof into his name if authority so to do be contained in an appropriate order of the court by which such receiver was appointed. A shareholder whose shares are pledged shall be entitled to vote such shares until the shares have been transferred into the name of the pledgee, and thereafter the pledgee shall be entitled to vote the shares so transferred. Shares of its own stock belonging to this corporation shall not be voted, directly or indirectly, at any meeting and shall not be counted in determining the total number of outstanding shares at any given time, but shares of its own stock held by it in a fiduciary capacity may be voted and shall be counted in determining the total number of outstanding shares at any given time. SECTION 12. CUMULATIVE VOTING. In all elections for directors, every shareholder shall have the right to vote, in person or by proxy, the number of shares owned by him, for as many persons as there are directors to be elected, or to cumulate said shares, and give one candidate as many votes as the number of directors multiplied by the number of his shares shall equal, or to distribute them on the same principle among as many candidates as he shall see fit. SECTION 13. INSPECTORS. At any meeting of shareholders, the chairman of the meeting may, or upon the request of any shareholder shall, appoint one or more persons as inspectors for such meeting. Such inspectors shall ascertain and report the number of shares represented at the meeting, based upon their determination of the validity and effect of proxies; count all votes and report the results; and do such other acts as are proper to conduct the election and voting with impartiality and fairness to all the shareholders. Each report of an inspector shall be in writing and signed by him or by a majority of them if there be more than one inspector acting at such meeting. If there is more than one inspector, the report of a majority shall be the report of the inspectors. The report of the inspector or inspectors on the number of shares represented at the meeting and the results of the voting shall be prima facie evidence thereof. SECTION 14. INFORMAL ACTION BY SHAREHOLDERS. Any action required to be taken at a meeting of the shareholders, or any other action which may be taken at a meeting of the shareholders, may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof. SECTION 15. VOTING BY BALLOT. Voting on any question or in any election may be viva voce unless the presiding officer shall order or any shareholder shall demand that voting be by ballot. ARTICLE III DIRECTORS SECTION 1. GENERAL POWERS. The business and affairs of the corporation shall be managed by its board of directors. SECTION 2. NUMBER, TENURE AND QUALIFICATIONS. The number of directors of the corporation shall be three. Each director shall hold office until the next annual meeting of shareholders or until his successor shall have been elected and qualified. Directors need not be residents of Illinois or shareholders of the corporation. SECTION 3. REGULAR MEETINGS. A regular meeting of the board of directors shall be held without other notice than this by-law, immediately after, and at the same place as, the annual meeting of shareholders. The board of directors may provide, by resolution, the time and place, either within or without the State of Illinois, for the holding of additional regular meetings without other notice than such resolution. SECTION 4. SPECIAL MEETINGS. Special meetings of the board of directors may be called by or at the request of the president or any two directors. The person or persons authorized to call special meetings of the board of directors may fix any place, either within or without the State of Illinois, as the place for holding any special meeting of the board of directors called by them. SECTION 5. NOTICE. Notice of any special meeting shall be given at least five days previous thereto by written notice delivered personally or mailed to each director at his business address, or by telegram. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail so addressed, with postage thereon prepaid. If notice be given by telegram, such notice shall be deemed to be delivered when the telegram is delivered to the telegraph company. Any director may waive notice of any meeting. The attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the board of directors need be specified in the notice or waiver of notice of such meeting. SECTION 6. QUORUM. A majority of the number of directors fixed by these by-laws shall constitute a quorum for transaction of business at any meeting of the board of directors, provided, that if less than a majority of such number of directors are present at said meeting, a majority of the directors present may adjourn the meeting from time to time without further notice. SECTION 7. MANNER OF ACTING. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the board of directors. SECTION 8. VACANCIES. Any vacancy occurring in the board of directors and any directorship to be filled by reason of an increase in the number of directors, may be filled by election at an annual meeting or at a special meeting of shareholders called for that purpose. SECTION 9. INFORMAL ACTION BY DIRECTORS. Unless specifically prohibited by the articles of incorporation or by-laws, any action required to be taken at a meeting of the board of directors, or any other action which may betaken at a meeting of the board of directors or the executive committee thereof, may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all the directors entitled to vote with respect to the subject matter thereof, or by all the members of such committee, as the case may be. Any such consent signed by all the directors or all the members of the executive committee shall have the same effect as a unanimous vote, and may be stated as such in any document filed with the Secretary of State. SECTION 10. COMPENSATION. The board of directors, by the affirmative vote of a majority of directors then in office, and irrespective of any personal interest of any of its members, shall have authority to establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise. By resolution of the board of directors the directors may be paid their expenses, if any, of attendance at each meeting of the board. SECTION 11. PRESUMPTION OF ASSENT. A director of the corporation who is present at a meeting of the board of directors at which action on any corporate matter is taken shall be conclusively presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action. ARTICLE IV OFFICERS SECTION 1. NUMBER. The officers of the corporation shall be a president, one or more vice-presidents (the number thereof to be determined by the board of directors), a treasurer, and a secretary, and such assistant treasurers, assistant secretaries or other officers as may be elected or appointed by the board of directors. Any two or more offices may be held by the same person, except the offices of president and secretary. SECTION 2. ELECTION AND TERM OF OFFICE. The officers of the corporation shall be elected annually by the board of directors at the first meeting of the board of directors held after each annual meeting of shareholders. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as conveniently may be. Vacancies may be filled or new offices filled at any meeting of the board of directors. Each officer shall hold office until his successor shall have been duly elected and shall have qualified or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. Election or appointment of an officer or agent shall not of itself create contract rights. SECTION 3. REMOVAL. Any officer or agent elected or appointed by the board of directors may be removed by the board of directors whenever in its judgment the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. SECTION 4. VACANCIES. A vacancy in any office because of death, resignation, removal, is qualification or otherwise, may be filled by the board of directors for the unexpired portion of the term. SECTION 5. PRESIDENT. The president shall be the principal executive officer of the corporation and shall in general supervise and control all of the business and affairs of the corporation. He shall preside at all meetings of the shareholders and of the board of directors. He may sign, with the secretary or any other proper officer of the corporation thereunto authorized by the board of directors, certificates for shares of the corporation, any deeds, mortgages, bonds, contracts, or other instruments which the board of directors has authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the board of directors or by these by-laws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of president and such other duties as may be prescribed by the board of directors from time to time. SECTION 6. THE VICE-PRESIDENTS. In the absence of the president or in the event of his inability or refusal to act, the vice-president (or in the event there be more than one vice-president, the vice presidents in the order designated, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. Any vice-president may sign, with the secretary or an assistant secretary, certificates for shares of the corporation; and shall perform such other duties as from time to time may be assigned to him by the president or by the board of directors. SECTION 7. THE TREASURER. If required by the board of directors, the treasurer shall give a bond for the faithful discharge of his duties in such sum and with such surety or sureties as the board of directors shall determine. He shall: (a) have charge and custody of and be responsible for all funds and securities of the corporation; receive and give receipts for moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such banks, trust companies or other depositaries as shall be selected in accordance with the provisions of Article V of these by-laws; (b) in general perform all the duties incident to the office of treasurer and such other duties as from to time may be assigned to him by the president or by the board of directors. SECTION 8. THE SECRETARY. The secretary shall: (a) keep the minutes of the shareholders' and of the board of directors' meetings in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these by-laws or as required by law; (c) be custodian of the corporate records and of the seal of the corporation and see that the seal of the corporation is affixed to all certificates for shares prior to the issue thereof and to all documents, the execution of which on behalf of the corporation under its seal is duly authorized in accordance with the provisions of these by-laws; (d) keep a register of the post-office address of each shareholder which shall be furnished to the secretary by such shareholder; (e) sign with the president, or a vice-president, certificates for shares of the corporation, the issue of which shall have been authorized by resolution of the board of directors; (f) have general charge of the stock transfer books of the corporation; (g) in general perform all duties incident to the office of secretary and such other duties as from time to time may be assigned to him by the president or by the board of directors. SECTION 9. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. The assistant treasurers shall respectively, if required by the board of directors, give bonds for the faithful discharge of their duties in such sums and with such sureties as the board of directors shall determine. The assistant secretaries as thereunto authorized by the board of directors may sign with the president or a vice-president certificates for shares of the corporation, the issue of which shall have been authorized by a resolution of the board of directors. The assistant treasurers and assistant secretaries, in general, shall perform such duties as shall be assigned to them by the treasurer or the secretary, respectively, or by the president or the board of directors. SECTION 10. SALARIES. The salaries of the officers shall be fixed from time to time by the board of directors and no officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the corporation. ARTICLE V CONTRACTS, LOANS, CHECKS AND DEPOSITS SECTION 1. CONTRACTS. The board of directors may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances. SECTION 2. LOANS. No loans shall be contracted on behalf of the corporation and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the board of directors. Such authority may be general or confined to specific instances. SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation, shall be signed by such officer or officers, agent or agents of the corporation and in such manner as shall from time to time be determined by resolution of the board of directors. SECTION 4. DEPOSITS. All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositaries as the board of directors may select. ARTICLE VI CERTIFICATES FOR SHARES AND THEIR TRANSFER SECTION 1. CERTIFICATES FOR SHARES. Certificates representing shares of the corporation shall be in such form as may be determined by the board of directors. Such certificates shall be signed by the president or a vice-president and by the secretary or an assistant secretary and shall be sealed with the seal of the corporation. All certificates for shares shall be consecutively numbered or otherwise identified. The name of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the books of the corporation. All certificates surrendered to the corporation for transfer shall be cancelled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except that in case of a lost, destroyed or mutilated certificate, a new one may be issued therefor upon such terms and indemnity to the corporation as the board of directors may prescribe. SECTION 2. TRANSFERS OF SHARES. Transfers of shares of the corporation shall be made only on the books of the corporation by the holder of record thereof or by his legal representative, who shall furnish proper evidence of authority to transfer, or by his attorney thereunto authorized by power of attorney duly executed and filed with the secretary of the corporation, and on surrender for cancellation of the certificate for such shares, the person in whose name shares stand on the books of the corporation shall be deemed the owner thereof for all purposes as regards the corporation. ARTICLE VII FISCAL YEAR The fiscal year of the corporation shall begin on the first day of January in each year and end on the last day of December in each year. ARTICLE VIII DIVIDENDS The board of directors may from time to time, declare, and the corporation may pay, dividends on its outstanding shares in the manner and upon the terms and conditions provided by law and its articles of incorporation. ARTICLE IX SEAL The board of directors shall provide a corporate seal which shall be in the form of a circle and shall have inscribed thereon the name of the corporation and the words, "Corporate Seal, Illinois." ARTICLE X WAIVER OF NOTICE Whenever any notice whatever is required to be given under the provisions of these by-laws or under the provisions of the articles of incorporation or under the provisions of The Business Corporation Act of the State of Illinois, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE XI AMENDMENTS These by-laws may be altered, amended or repealed and new by-laws may be adopted at any meeting of the board of directors of the corporation by a majority vote of the directors present at the meeting. ARTICLE XII INDEMNIFICATION Each director, each officer and each other person who may have acted as a representative of the corporation at its request, and his heirs, executors and administrators, shall be indemnified by the corporation against any costs and expenses, including counsel fees, reasonably incurred in connection with any civil, criminal, administrative or other claim, action, suit or proceeding in which he or they may become involved or with which he or they may be threatened, by reason of his being or having been a director or officer of the corporation or by reason of his serving or having served any corporation, trust, committee, firm or other organization as director, officer, employee, trustee, member or otherwise at the request of the corporation, and against any payments in settlement of any such claim, action, suit or proceeding or in satisfaction of any related judgment, fine or penalty, except costs, expenses or payments in relation to any matter as to which he shall be finally adjudged derelict in the performance of his duties to the corporation, or in relation to any matter as to which there has been no adjudication with respect to his performance of his duties to the corporation unless the corporation shall receive an opinion from independent counsel that the director, officer or representative has not so been derelict. In the case of a criminal action, suit or proceeding, a conviction or judgment (whether after trial or based on a plea of guilty or nolo contendere or its equivalent) shall not be deemed an adjudication that the director, officer or representative was derelict in the performance of his duties to the corporation if he acted in good faith in what he considered to be the best interests of the corporation and with no reasonable cause to believe the action was illegal. The foregoing right of indemnification shall not be exclusive of other rights to which directors, officers and others may be entitled as a matter of law or otherwise. EX-3.17 16 file015.txt ARTICLES OF INCORPORATION OF HEARTHMARK, INC. ARTICLES OF INCORPORATION OF HEARTHMARK, INC. The undersigned incorporator, desiring to form a corporation (hereinafter referred to as the "Corporation") pursuant to the provisions of the Indiana Business Corporation Law, as amended (hereinafter referred to as the "Act"), executes the following Articles of Incorporation. ARTICLE I NAME The name of the Corporation is Hearthmark, Inc. ARTICLE II SHARES Section 2.1. Number. The total number of shares which the Corporation is authorized to issue is one thousand (1,000) shares, with par value of One Dollar ($1.00) per share. Section 2.2. Classes. There shall be one (1) class of shares of the Corporation, which shall be designated as "Common Shares". Section 2.3. Relative Rights, Preferences, Limitations and Restrictions of Common Shares. All Common Shares shall have the same rights, preferences, limitations and restrictions. Section 2.4. Voting Rights of Common Shares. Each holder of Common Shares shall be entitled to one (1) vote for each share owned of record on the books of the Corporation on each matter submitted to a vote of the holders of Common Shares. ARTICLE III REGISTERED OFFICE AND REGISTERED AGENT Section 3.1. Registered Office. The street address of the Corporation's initial registered office One North Capital Avenue, Indianapolis, Indiana 46204. Section 3.2. Registered Agent. The name of the Corporation's initial registered agent at such registered office is CT Corporation System. ARTICLE IV INCORPORATOR The name and address of the incorporator of the Corporation are: Name Address ---- ------- Angela K. Knowlton 345 South High Street, Suite 200 P.O. Box 5004 Muncie, Indiana 47307-5004 ARTICLE V BOARD OF DIRECTORS Section 5.1. Number. The total number of directors shall be that specified in or fixed in accordance with the bylaws. In the absence of a provision in the bylaws specifying the number of directors or setting forth the manner in which such number shall be fixed, the number of directors shall be three (3). The bylaws may provide for staggering the terms of directors by dividing the directors into two (2) or three (3) groups, as provided in the Act. Section 5.2. Initial Board of Directors. The names and addresses of the initial directors of the Corporation are: Name Address ---- ------- Thomas B. Clark 345 South High Street, Suite 200 P.O. Box 5004 Muncie, Indiana 47307-5004 Jerry T. McDowell 345 South High Street, Suite 200 P.O. Box 5004 Muncie, Indiana 47307-5004 Kevin D. Bower 345 South High Street, Suite 200 P.O. Box 5004 Muncie, Indiana 47307-5004 ARTICLE VI INDEMNIFICATION Section 6.1. Rights to Indemnification and Advancement of Expenses. (a) The Corporation shall indemnify as a matter of right every person made a party to a proceeding because such person is or was (i) a member of the Board of Directors of the Corporation, (ii) an officer of the Corporation, or (iii) while a director or officer of the Corporation, serving at the Corporation's request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, whether for profit or not, (each an "Indemnitee") against all liability incurred by such person in connection with the proceeding; provided that it is determined in the specific case that indemnification of such person is permissible in the circumstances because such person has met the standard of conduct for indemnification specified in the Act. The Corporation shall pay for or reimburse the reasonable expenses incurred by an Indemnitee in connection with any such proceeding in advance of final disposition thereof in accordance with the procedures and subject to the conditions specified in the Act. The Corporation shall indemnify as a matter of right an Indemnitee who is wholly successful, on the merits or otherwise, in the defense of any such proceeding, against reasonable expenses incurred by the Indemnitee in connection with the proceeding without the requirement of a determination as set forth in the first sentence of this paragraph. (b) Upon demand by a person for indemnification or advancement of expenses, as the case may be, the Corporation shall expeditiously determine whether the person is entitled thereto in accordance with this Article and the procedures specified in the Act. (c) The indemnification provided under this Article shall apply to any proceeding arising from acts or omissions occurring before or after the adoption of this Article. Section 6.2. Other Rights Not Affected. Nothing contained in this Article shall limit or preclude the exercise or be deemed exclusive of any right under the law, by contract or otherwise, relating to indemnification of or advancement of expenses to any individual who is or was a director, officer, employee or agent of the Corporation, or the ability of the Corporation to otherwise indemnify or advance expenses to any such individual. It is the intent of this Article to provide indemnification to directors and officers to the fullest extent now or hereafter permitted by law consistent with the terms and conditions of this Article. Therefore, indemnification shall be provided in accordance with this Article irrespective of the nature of the legal or equitable theory upon which a claim is made, including without limitation negligence, breach of duty, mismanagement, corporate waste, breach of contract, breach of warranty, strict liability, violation of federal or state securities laws, violation of the Employee Retirement Income Security Act of 1974, as amended, or violation of any other state or federal laws. Section 6.3. Definitions. For purposes of this Article: (a) The term "director" means an individual who is or was a member of the Board of Directors of the Corporation or an individual who, while a director of the Corporation, is or was serving at the Corporation's request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, whether for profit or not. A director is considered to be serving an employee benefit plan at the Corporation's request if the director's duties to the Corporation also impose duties on, or otherwise involve services by, the director to the plan or to participants in or beneficiaries of the plan. The term "director" includes, unless the context requires otherwise, the estate or personal representative of a director. (b) The term "expenses" includes all direct and indirect costs (including without limitation counsel fees, retainers, court costs, transcripts, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, all other disbursements or out-of-pocket expenses) actually incurred in connection with the investigation, defense, settlement or appeal of a proceeding or establishing or enforcing a right to indemnification under this Article, applicable law or otherwise. (c) The term "liability" means the obligation to pay a judgment, settlement, penalty, fine, excise tax (including an excise tax assessed with respect to an employee benefit plan), or reasonable expenses incurred with respect to a proceeding. (d) The term "party" includes an individual who was, is or is threatened to be made a named defendant or respondent in a proceeding. (e) The term "proceeding" means any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and whether formal or informal. IN WITNESS WHEREOF, the undersigned incorporator designated in Article IV executes these Articles of Incorporation and hereby verifies subject to penalties of perjury that the facts contained herein are true. Dated this 20th day of December, 1996. /s/ Angela K. Knowlton ---------------------- EX-3.18 17 file016.txt BYLAWS OF HEARTHMARK, INC. BYLAWS OF HEARTHMARK, INC. ARTICLE I RECORDS PERTAINING TO SHARE OWNERSHIP Section 1. Recognition of Shareholders. Hearthmark, Inc. (the "Corporation") is entitled to recognize a person registered on its books as the owner of shares of the Corporation as having the exclusive right to receive dividends and to vote those shares, notwithstanding any other person's equitable or other claim to, or interest in, those shares. Section 2. Transfer of Shares. Shares are transferable only on the books of the Corporation, subject to any transfer restrictions imposed by the Articles of Incorporation, these Bylaws, or an agreement among shareholders and the Corporation. Shares may be so transferred upon presentation of the certificate representing the shares, endorsed by the appropriate person or persons, and accompanied by (a) reasonable assurances that those endorsements are genuine and effective, and (b) a request to register the transfer. Transfers of shares are otherwise subject to the provisions of the Indiana Business Corporation Law (the "Act") and Article 8 of the Indiana Uniform Commercial Code. Section 3. Certificates. Each shareholder is entitled to a certificate signed (manually or in facsimile) by the President and the Secretary or an Assistant Secretary, setting forth (a) the name of the Corporation, and that it was organized under Indiana law, (b) the name of the person to whom issued, and (c) the number of shares represented. The Board of Directors shall prescribe the form of the certificate. Section 4. Lost or Destroyed Certificates. A new certificate may be issued to replace a lost or destroyed certificate. Unless waived by the Board of Directors, the shareholder in whose name the certificate was issued shall make an affidavit or affirmation of the fact that his certificate is lost or destroyed, shall advertise the loss or destruction in such manner as the Board of Directors may require, and shall give the Corporation, a bond of indemnity in the amount and form which the Board of Directors may prescribe. ARTICLE II MEETINGS OF THE SHAREHOLDERS Section 1. Annual Meeting. Annual meetings of the shareholders shall be held on such date as may be designated by the Board of Directors. Section 2. Special Meetings. Special meetings of the shareholders may be called by the President or by the Board of Directors. Special meetings of the shareholders shall be called upon delivery to the Secretary of the Corporation of one or more written demands for a special meeting of the shareholders describing the purposes of that meeting and signed and dated by the holders of at least 25% of all the votes entitled to be cast on any issue proposed to be considered at that meeting. Section 3. Notice of Meetings. The Corporation shall deliver or mail written notice stating the date, time, and place of any shareholders' meeting and, in the case of a special shareholders' meeting or when otherwise required by law, a description of the purposes for which the meeting is called, to each shareholder of record entitled to vote at the meeting, at such address as appears in the records of the Corporation and at least 10, but no more than 60, days before the date of the meeting. A shareholders' meeting shall be held at such place, either in or out of the State of Indiana, as may be specified by the Board of Directors in the respective notice for such meeting. Section 4. Waiver of Notice. A shareholder may waive notice of any meeting, before or after the date and time of the meeting as stated in the notice, by delivering a signed waiver to the Corporation for inclusion in the minutes. A shareholder's attendance at any meeting, in person or by proxy (a) waives objection to lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting, and (b) waives objection to consideration of a particular matter at the meeting that is not within the purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented. Section 5. Record Date. The Board of Directors may fix a record date, which may be a future date, for the purpose of determining the shareholders entitled to notice of a shareholders' meeting, to demand a special meeting, to vote, or to take any other action. A record date may not exceed 70 days before the meeting or action requiring a determination of shareholders. If the Board of Directors does not fix a record date, the record date shall be the 10th day prior to the date of the meeting or other action. Section 6. Voting by Proxy. A shareholder may appoint a proxy to vote or otherwise act for the shareholder pursuant to a written appointment form executed by the shareholder or the shareholder's duly authorized attorney-in-fact. An appointment of a proxy is effective when received by the Secretary or other officer or agent of the Corporation authorized to tabulate votes. The general proxy of a fiduciary is given the same effect as the general proxy of any other shareholder. A proxy appointment is valid for 11 months unless otherwise expressly stated in the appointment form. Section 7. Voting Lists. After a record date for a shareholders' meeting has been fixed, the Secretary shall prepare an alphabetical list of all shareholders entitled to notice of the meeting showing the address and number of shares held by each shareholder. The list shall be kept on file at the principal office of the Corporation or at a place identified in the meeting notice in the city where the meeting will be held. The list shall be available for inspection and copying by any shareholder entitled to vote at the meeting, or by the shareholder's agent or attorney authorized in writing, at any time during regular business hours, beginning 5 business days before the date of the meeting through the meeting. The list shall also be made available to any shareholder, or to the shareholder's agent or attorney authorized in writing, at the meeting and any adjournment thereof. Failure to prepare or make available a voting list with respect to any shareholder's meeting shall not affect the validity of any action taken at such meeting. Section 8. Quorum; Approval. At any meeting of shareholders, a majority of the votes entitled to be cast on a matter at the meeting constitutes a quorum. If a quorum is present when a vote is taken, action on a matter is approved if the votes cast in favor of the action exceed the votes cast in opposition to the action, unless a greater number is required by law, the Articles of Incorporation, or these Bylaws. Section 9. Action by Consent. Any action required or permitted to be taken at a shareholders' meeting may be taken without a meeting if the action is taken by all the shareholders entitled to vote on the action. The action must be evidenced by one or more written consents describing the action taken, signed by all the shareholders entitled to vote on the action, and delivered by hand or certified or registered mail, return receipt requested or by facsimile to the Corporation for inclusion in the minutes. If not otherwise determined pursuant to Section 5 of this Article II, the record date for determining shareholders entitled to take action without a meeting is the date the first shareholder signs the consent to such action. Section 10. Presence. Any or all shareholders may participate in any annual or special shareholders' meeting by, or through the use of, any means of communication by which all shareholders participating may simultaneously hear each other during the meeting. A shareholder so participating is deemed to be present in person at the meeting. Section 11. Place of Meetings. Meetings of the shareholders of the Corporation shall be held at such place, either in or out of the State of Indiana, as may be specified by the Board of Directors. ARTICLE III Board of Directors Section 1. Powers and Duties. All corporate powers are exercised by or under the authority of, and the business and affairs of the Corporation are managed under the direction of, the Board of Directors, unless otherwise provided in the Articles of Incorporation. Section 2. Number and Terms of Office; Qualifications. The Corporation shall have 3 directors. Directors are elected at each annual shareholders' meeting and serve for a term expiring at the following annual shareholders' meeting. A director who has been removed pursuant to Section 3 of this Article III ceases to serve immediately upon removal; otherwise, a director whose term has expired continues to serve until a successor is elected and qualifies or until there is a decrease in the number of directors. A person need not be a shareholder or an Indiana resident to qualify to be a director. Section 3. Removal. Any director may be removed with or without cause by action of the shareholders taken at any meeting the notice of which states that one of the purposes of the meeting is removal of the director. Section 4. Vacancies. If a vacancy occurs on the Board of Directors, including a vacancy resulting from an increase in the number of directors, the Board of Directors may fill the vacancy. If the directors remaining in office constitute fewer than a quorum of the Board, the directors remaining in office may fill the vacancy by the affirmative vote of a majority of those directors. Any director elected to fill a vacancy holds office until the next annual meeting of the shareholders and until a successor is elected and qualifies. Section 5. Annual Meetings. Unless otherwise agreed by the Board of Directors, the annual meeting of the Board of Directors shall be held immediately following the annual meeting of the shareholders, at the place where the meeting of shareholders was held, for the purpose of electing officers and considering any other business which may be brought before the meeting. Notice is not necessary for any annual meeting. Section 6. Regular and Special Meetings. Regular meetings of the Board of Directors may be held pursuant to a resolution of the Board of Directors establishing a method for determining the date, time, and place of those meetings. Notice is not necessary for any regular meeting. Special meetings of the Board of Directors may be held upon the call of the President or of any 2 directors and upon 24 hours' written or oral notice specifying the date, time, and place of the meeting. Notice of a special meeting may be waived in writing before or after the time of the meeting. The waiver must be signed by the director entitled to the notice and filed with the minutes of the meeting. Attendance at or participation in a meeting waives any required notice of the meeting, unless at the beginning of the meeting (or promptly upon the director's arrival) the director objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting. Section 7. Quorum. A quorum for the transaction of business at any meeting of the Board of Directors consists of a majority of the number of directors specified in Section 2 of this Article III. If a quorum is present when a vote is taken, action on a matter is approved if the action receives the affirmative vote of a majority of the directors present. Section 8. Action by Consent. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if the action is taken by all directors then in office. The action must be evidenced by one or more written consents describing the action taken, signed by each director, shall be delivered by hand or certified or registered mail, return receipt requested or by facsimile, and included in the minutes. Action of the Board of Directors taken by consent is effective when the last director signs the consent, unless the consent specifies a prior or subsequent effective date. Section 9. Committees. The Board of Directors may create one or more committees and appoint members of the Board of Directors to serve on them. Each committee may have one or more members, who serve at the pleasure of the Board of Directors. The creation of a committee and appointment of members to it must be approved by the greater of (a) a majority of all the directors in office when the action is taken, or (b) the number of directors required under Section 7 of this Article III to take action. All rules applicable to action by the Board of Directors apply to committees and their members. The Board of Directors may specify the authority that a committee may exercise; however, a committee may not (a) authorize distributions, except a committee may authorize or approve a reacquisition of shares if done according to a formula or method prescribed by the Board of Directors, (b) approve or propose to shareholders action that must be approved by shareholders, (c) fill vacancies on the Board of Directors or on any of its committees, (d) amend the Articles of Incorporation, (e) adopt, amend, or repeal these Bylaws, (f) approve a plan of merger not requiring shareholder approval, or (g) authorize or approve the issuance or sale or a contract for the sale of shares, or determine the designation and relative rights, preferences, and limitations of a class or series of shares, except the Board of Directors may authorize a committee to so act within limits prescribed by the Board of Directors. Section 10. Presence. The Board of Directors may permit any or all directors to participate in any annual, regular, or special meeting by any means of communication by which all directors participating may simultaneously hear each other during the meeting. A director so participating is deemed to be present in person at the meeting. Section 11. Compensation. Each director shall receive such compensation for service as a director as may be fixed by the Board of Directors. ARTICLE IV OFFICERS Section 1. Officers. The Corporation shall have a President, a Secretary and a Treasurer and such assistant officers as the Board of Directors or the President designates. The Corporation may have one or more Vice Presidents as may be designated by the Board of Directors. The same individual may simultaneously hold more than one office. Section 2. Terms of Office. Officers are elected at each annual meeting of the Board of Directors and serve for a term expiring at the following annual meeting of the Board of Directors. An officer who has been removed pursuant to Section 4 of this Article IV ceases to serve as an officer immediately upon removal; otherwise, an officer whose term has expired continues to serve until a successor is elected and qualifies. Section 3. Vacancies. If a vacancy occurs among the officers, the Board of Directors may fill the vacancy. Any officer elected to fill a vacancy holds office until the next annual meeting of the Board of Directors and until a successor is elected and qualifies. Section 4. Removal. Any officer may be removed by the Board of Directors at any time with or without cause. Section 5. Compensation. Each officer shall receive such compensation for service in office as may be fixed by the Board of Directors. Section 6. President. The President is the chief executive officer of the Corporation and is responsible for managing and supervising the affairs and personnel of the Corporation, subject to the general control of the Board of Directors. The President presides at all meetings of shareholders and directors. The President, or proxies appointed by the President, may vote shares of other corporations owned by the Corporation. The President has authority to execute, with the Secretary, powers of attorney appointing other corporations, partnerships, or individuals as the agents of the Corporation, subject to law, the Articles of Incorporation, and these Bylaws. The President has such other powers and duties as the Board of Directors may from time to time prescribe. Section 7. Secretary. The Secretary is responsible for (a) attending all meetings of the shareholders and the Board of Directors, (b) preparing true and complete minutes of the proceedings of all meetings of the shareholders, the Board of Directors, and all committees of the Board of Directors, (c) maintaining and safeguarding the books (except books of account) and records of the Corporation, and (d) authenticating the records of the Corporation. If required, the Secretary attests the execution of deeds, leases, agreements, powers of attorney, certificates representing shares of the Corporation, and other official documents by the Corporation. The Secretary serves all notices of the Corporation required by law, the Board of Directors, or these Bylaws. The Secretary has such other duties as the Board of Directors may from time to time prescribe. Section 8. Treasurer. The Treasurer is responsible for (a) keeping correct and complete books of account which show accurately at all times the financial condition of the Corporation, (b) safeguarding all funds, notes, securities, and other valuables which may from time to time come into the possession of the Corporation, and (c) depositing all funds of the Corporation with such depositories as the Board of Directors shall designate. The Treasurer shall furnish at meetings of the Board of Directors, or when otherwise requested, a statement of the financial condition of the Corporation. The Treasurer has such other duties as the Board of Directors may from time to time prescribe. Section 9. Vice Presidents. The Board of Directors may from time to time designate and elect a Vice President or Vice Presidents who shall have such powers and duties as the Board of Directors may from time to time prescribe. Section 10. Assistant Officers. The Board of Directors or the President may from time to time designate and elect assistant officers who shall have such powers and duties as the officers whom they are elected to assist specify and delegate to them, and such other powers and duties as the Board of Directors or the President may from time to time prescribe. An Assistant Secretary may, during the absence or disability of the Secretary, discharge all responsibilities imposed upon the Secretary of the Corporation, including, without limitation, attest the execution of all documents by the Corporation. ARTICLE V MISCELLANEOUS Section 1. Records. The Corporation shall keep as permanent records minutes of all meetings of the shareholders, the Board of Directors, and all committees of the Board of Directors, and a record of all actions taken without a meeting by the shareholders, the Board of Directors, and all committees of the Board of Directors. The Corporation or its agent shall maintain a record of the shareholders in a form that permits preparation of a list of the names and addresses of all shareholders, in alphabetical order showing the number of shares held by each. The Corporation shall maintain its records in written form or in a form capable of conversion into written form within a reasonable time. The Corporation shall keep a copy of the following records at its principal office: (a) the Articles of Incorporation then currently in effect, (b) the Bylaws then currently in effect, (c) minutes of all shareholders' meetings, and records of all actions taken by shareholders without a meeting, for the past 3 years, (d) all written communications to shareholders generally during the past 3 years, including annual financial statements furnished upon request of the shareholders, (e) a list of the names and business addresses of the current directors and officers, and (f) the most recent annual report filed with the Indiana Secretary of State. Section 2. Execution of Contracts and Other Documents. Unless otherwise authorized or directed by the Board of Directors, all written contracts and other documents entered into by the Corporation shall be executed on behalf of the Corporation by the President or his or her designee and, if required, attested by the Secretary or an Assistant Secretary. Section 3. Accounting Year. The accounting year of the Corporation begins on January 1 of each year and ends on the December 31 immediately following. Section 4. Corporate Seal. The Corporation has no seal. ARTICLE VI AMENDMENT These Bylaws may be amended or repealed only by the Board of Directors. The affirmative vote of a majority of all the directors is necessary to amend or repeal these Bylaws. EX-3.19 18 file017.txt AMENDMENT NO. 1 TO THE BYLAWS OF HEARTHMARK, INC. AMENDMENT NO. 1 TO BYLAWS OF HEARTHMARK, INC. 1. The Bylaws (the "Bylaws") of Hearthmark, Inc., an Indiana Corporation, are hereby amended as follows: Article IV, Sections 1 and 6 of the Bylaws are hereby amended by deleting such sections in their entirety and inserting the following new Sections 1 and 6, respectively, in lieu thereof: "Section 1. Officers. The Corporation shall have a Chief Executive Officer, a President, a Secretary, a Treasurer and a Controller and such other assistant officers as the Board of Directors, Chief Executive Officer, or the President designates. The Corporation may have one or more Vice Presidents as may be designated by the Board of Directors and the Chief Executive Officer. The same individual may simultaneously hold more than one office. Section 6. President. The President is responsible for managing and supervising the affairs and personnel of the Corporation, subject to the general control of the Board of Directors and the Chief Executive Officer. The President has authority to execute, with the Secretary, powers of attorney appointing other corporations, partnerships, or individuals as the agents of the Corporation, subject to law, the Articles of Incorporation, and these Bylaws. The President has such other powers and duties as the Board of Directors and the Chief Executive Officer may from time to time prescribe." Article IV of the Bylaws is hereby amended by adding the following new Sections 11 and 12 at the end thereof: "Section 11. Chief Executive Officer. The Chief Executive Officer shall have general direction of the affairs of the Corporation and general supervision over its several officers, subject, however, to the control of the Board of Directors, and in general shall perform such duties and, subject to the other provisions of these Bylaws, have such powers incident to the office of Chief Executive Officer and perform such other duties and have such other powers as from time to time may be assigned to him by the Board of Directors. The Chief Executive Officer presides at all meetings of shareholders and directors. The Chief Executive Officer, or proxies appointed by the Chief Executive Officer, may vote shares of other corporations owned by the Corporation. Section 12. Controller. The Controller is responsible for preparing correct and complete books of account which show accurately at all times the financial condition of the Corporation, including, but not limited to the preparation of balance sheets, income statements, statements of cash flows and such other statements as may be required, as well as, budgets and forecasts. The Controller shall furnish to the other officers of the Company and to the board of directors, upon request, statements of the financial condition of the Corporation and such other financial information as requested. The Controller has such other duties as the Treasurer, other officers of the Corporation and the board of directors may from time to time prescribe." 2. Except as amended herein, the Bylaws shall remain unmodified and in full force and effect. The undersigned hereby certifies that the above and foregoing amendment was duly adopted by the unanimous written consent of the directors on June 25, 2002. This 25th day of June, 2002 By: /s/ Ian Ashken Title: Secretary and Treasurer of Hearthmark, Inc. EX-3.20 19 file018.txt ARTICLES OF INCORPORATION ARTICLES OF INCORPORATION OF LAFAYETTE STEEL & ALUMINUM CORPORATION The undersigned, E. DAVID ROLLERT, 208 South LaSalle Street, Chicago, Illinois, being one or more natural persons of the age of twenty-one years or more or a corporation, and having subscribed to shares of the corporation to be organized pursuant hereto, for the purpose of forming a corporation under "The Business Corporation Act" of the State of Illinois, do hereby adopt the following Articles of Incorporation: ARTICLE ONE The name of the corporation hereby incorporated is LAFAYETTE STEEL & ALUMINUM CORPORATION. ARTICLE TWO The address of its initial registered office in the State of Illinois is 208 South LaSalle Street, in the City of Chicago, 60604 County of Cook and the name of its initial Registered Agent at said address is E. David Rollert. ARTICLE THREE The duration of the corporation is Perpetual. ARTICLE FOUR The purpose or purposes for which the corporation is organized are: To manufacture and deal in merchandise and other property of every nature and description. To render and charge for services of every kind and description which the Corporation may legally perform. To acquire, own, use, convey and otherwise dispose of and deal in real property or any interest therein without limitation. To erect, own, operate, manage, use or lease, in whole or in part, any building or other structure located on real property owned or leased by the Corporation. ARTICLE FIVE PARAGRAPH 1: The aggregate number of shares which the corporation is authorized to issue is 1,000 divided into one class. The designation of each class, the number of shares of each class, and the par value, if any, of the shares of each class, or a statement that the shares of any class are without par value, are as follows:
Series Number of Par value per share or statement that shares Class (If any) Shares are without par value Common None 1,000 No Par Value
PARAGRAPH 2: The preferences, qualifications, limitations, restrictions and the special or relative rights in respect of the shares of each class are: NONE. ARTICLE SIX The class and number of shares which the corporation proposes to issue without further report to the Secretary of State, and the consideration (expressed in dollars) to be received by the corporation therefor, are:
Total consideration to be Class of shares Number of shares received therefor: Common 1,000 $1,000.00
ARTICLE SEVEN The corporation will not commence business until at least one thousand dollars has been received as consideration for the issuance of shares. ARTICLE EIGHT The number of directors to be elected at the first meeting of the shareholders is: one. ARTICLE NINE PARAGRAPH 1: It is estimated that the value of all property to be owned by the corporation for the following year wherever located will be $___________. PARAGRAPH 2: It is estimated that the value of all property to be located within the State of Illinois during the following year will be $_____________. PARAGRAPH 3: It is estimated that the gross amount of business which will be transacted by the corporation during the following year will be $____________. PARAGRAPH 4: It is estimated that the gross amount of business which will be transacted at or from places of business in the State of Illinois during the following year will be $______________ . NOTE: If all the property of the corporation is to be located in this State and all of its business is to be transacted at or from places of business in this State, or if the incorporators elect to pay the initial franchise tax on the basis of its entire stated capital and paid-in surplus, then the information called for in Article Nine need not be stated. * The initial franchise tax is being paid on the basis of the entire stated capital and paid in surplus. /s/ E. David Rollert, Incorporator ---------------------------------- EX-3.21 20 file019.txt BYLAWS OF LAFAYETTE STEEL & ALUMINUM CORPORATION. BY-LAWS OF LAFAYETTE STEEL & ALUMINUM CORPORATION ARTICLE I OFFICES The principal office of the corporation in the State of Illinois shall be located in the City of Chicago and County of Cook. The corporation may have such other offices, either within or without the State of Illinois, as the business of the corporation may require from time to time. The registered office of the corporation required by The Business Corporation Act to be maintained in the State of Illinois may be, but need not be, identical with the principal office in the State of Illinois, and the address of the registered office may be changed from time to time by the board of directors. ARTICLE II SHAREHOLDERS SECTION 1. ANNUAL MEETING. The annual meeting of the shareholders shall be held on the first Thursday in January in each year, beginning with the year 1967, at the hour of 10:00 A.M., for the purpose of electing directors and for the transaction of such other business as may come before the meeting. If the day fixed for the annual meeting shall be a legal holiday, such meeting shall be held on the next succeeding business day. If the election of directors shall not be held on the day designated herein for any annual meeting, or at any adjournment thereof, the board of directors shall cause the election to be held at a meeting of the shareholders as soon thereafter as conveniently may be. SECTION 2. SPECIAL MEETINGS. Special meetings of the shareholders may be called by the president, by the board of directors or by the holders of not less than one-fifth of all the outstanding shares of the corporation. SECTION 3. PLACE OF MEETING. The board of directors may designate any place, either within or without the State of Illinois, as the place of meeting for any annual meeting or for any special meeting called by the board of directors. A waiver of notice signed by all shareholders may designate any place, either within or without the State of Illinois, as the place for the holding of such meeting. If no designation is made, or if a special meeting be otherwise called, the place of meeting shall be the registered office of the corporation in the State of Illinois, except as otherwise provided in section 5 of this article. SECTION 4. NOTICE OF MEETINGS. Written or printed notice stating the place, day and hour of the meeting, and in the case of a special meeting, the purpose or purposes for which the meeting is called, shall be delivered not less than ten nor more than forty days before the date of the meeting, or in the case of a merger or consolidation not less than twenty nor more than forty days before the meeting, either personally or by mail, by or at the direction of the president, or the secretary, or the officer or persons calling the meeting, to each shareholder of record entitled to vote at such meeting. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail, addressed to the shareholder at his address as it appears on the records of the corporation, with postage thereon prepaid. SECTION 5. MEETING OF ALL SHAREHOLDERS. If all of the shareholders shall meet at any time and place, either within or without the State of Illinois, and consent to the holding of a meeting at such time and place, such meeting shall be valid without call or notice, and at such meeting any corporate action may be taken. SECTION 6. CLOSING OF TRANSFER BOOKS OR FIXING OF RECORD DATE. For the purpose of determining shareholders entitled to notice of or to vote at any meeting of shareholders, or shareholders entitled to receive payment of any dividend, or in order to make a determination of shareholders for any other proper purpose, the board of directors of the corporation may provide that the stock transfer books shall be closed for a stated period but not to exceed, in any case, forty days. If the stock transfer books shall be closed for the purpose of determining shareholders entitled to notice of or to vote at a meeting of shareholders, such books shall be closed for at least ten days, or in the case of a merger or consolidation, at least twenty days, immediately preceding such, meeting. In lieu of closing the stock transfer books, the board of directors may fix in advance a date as the record date for any such determination of shareholders, such date in any case to be not more than forty days and, for a meeting of shareholders, not less than ten days, or in the case of a merger or consolidation not less than twenty days, immediately preceding such meeting. If the stock transfer books are not closed and no record date is fixed for the determination of shareholders entitled to notice of or to vote at a meeting of shareholders, or shareholders entitled to receive payment of a dividend, the date on which notice of the meeting is mailed or the date on which the resolution of the board of directors declaring such dividend is adopted, as the case may be, shall be the record date for such determination of shareholders. SECTION 7. VOTING LISTS. The officer or agent having charge of the transfer books for shares of the corporation shall make, at least ten days before each meeting of shareholders, a complete list of the shareholders entitled to vote at such meeting, arranged in alphabetical order, with the address of and the number of shares held by each, which list, for a period of ten days prior to such meeting, shall be kept on file at the registered office of the corporation and shall be subject to inspection by any shareholder at any time during usual business hours. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to the inspection of any shareholder during the whole time of the meeting. The original share ledger or transfer book, or a duplicate thereof kept in this State, shall be prima facie evidence as to who are the shareholders entitled to examine such list or share ledger or transfer book or to vote at any meeting of shareholders. SECTION 8. QUORUM. A majority of the outstanding shares of the corporation, represented in person or by proxy, shall constitute a quorum at any meeting of shareholders; provided, that if less than a majority of the outstanding shares are represented at said meeting, a majority of the shares so represented may adjourn the meeting from time to time without further notice. If a quorum is present, the affirmative vote of the majority of the shares represented at the meeting shall be the act of the shareholders, unless the vote of a greater number or voting by classes is required by The Business Corporation Act, the articles of incorporation or these by-laws. SECTION 9. PROXIES. At all meetings of shareholders, a shareholder may vote by proxy executed in writing by the shareholder or by his duly authorized attorney-in-fact. Such proxy shall be filed with the secretary of the corporation before or at the time of the meeting. No proxy shall be valid after eleven months from the date of its execution, unless otherwise provided in the proxy. SECTION 10. VOTING OF SHARES. Subject to the provisions of section 12 of this article, each outstanding share, regardless of class, shall be entitled to one vote upon each matter submitted to vote at a meeting of shareholders. SECTION 11. VOTING OF SHARES BY CERTAIN HOLDERS. Shares standing in the name of another corporation, domestic or foreign, may be voted by such officer, agent, or proxy as the by-laws of such corporation may prescribe, or, in the absence of such provision, as the board of directors of such corporation may determine. Shares standing in the name of a deceased person, a minor ward or an incompetent person, may be voted by his administrator, executor, court appointed guardian or conservator, either in person or by proxy without a transfer of such shares into the name of such administrator, executor, court appointed guardian or conservator. Shares standing in the name of a trustee may be voted by him, either in person or by proxy. Shares standing in the name of a receiver may be voted by such receiver, and shares held by or under the control of a receiver may be voted by such receiver without the transfer thereof into his name if authority so to do be contained in an appropriate order of the court by which such receiver was appointed. A shareholder whose shares are pledged shall be entitled to vote such shares until the shares have been transferred into the name of the pledgee, and thereafter the pledgee shall be entitled to vote the shares so transferred. Shares of its own stock belonging to this corporation shall not be voted, directly or indirectly, at any meeting and shall not be counted in determining the total number of outstanding shares at any given time, but shares of its own stock held by it in a fiduciary capacity may be voted and shall be counted in determining the total number of outstanding shares at any given time. SECTION 12. CUMULATIVE VOTING. In all elections for directors, every shareholder shall have the right to vote, in person or by proxy, the number of shares owned by him, for as many persons as there are directors to be elected, or to cumulate said shares, and give one candidate as many votes as the number of directors multiplied by the number of his shares shall equal, or to distribute them on the same principle among as many candidates as he shall see fit. SECTION 13. INSPECTORS. At any meeting of shareholders, the chairman of the meeting may, or upon the request of any shareholder shall, appoint one or more persons as inspectors for such meeting. Such inspectors shall ascertain and report the number of shares represented at the meeting, based upon their determination of the validity and effect of proxies; count all votes and report the results; and do such other acts as are proper to conduct the election and voting with impartiality and fairness to all the shareholders. Each report of an inspector shall be in writing and signed by him or by a majority of them if there be more than one inspector acting at such meeting. If there is more than one inspector, the report of a majority shall be the report of the inspectors. The report of the inspector or inspectors on the number of shares represented at the meeting and the results of the voting shall be prima facie evidence thereof. SECTION 14. INFORMAL ACTION BY SHAREHOLDERS. Any action required to be taken at a meeting of the shareholders, or any other action which may be taken at a meeting of the shareholders, may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all of the shareholders entitled to vote with respect to the subject matter thereof. SECTION 15. VOTING BY BALLOT. Voting on any question or in any election may be viva voce unless the presiding officer shall order or any shareholder shall demand that voting be by ballot. ARTICLE III DIRECTORS SECTION 1. GENERAL POWERS. The business and affairs of the corporation shall be managed by its board of directors. SECTION 2. NUMBER, TENURE AND QUALIFICATIONS. The number of directors of the corporation shall be one. Each director shall hold office until the next annual meeting of shareholders or until his successor shall have been elected and qualified. Directors need not be residents of Illinois or shareholders of the corporation. SECTION 3. REGULAR MEETINGS. A regular meeting of the board of directors shall be held without other notice than this by-law, immediately after, and at the same place as, the annual meeting of shareholders. The board of directors may provide, by resolution, the time and place, either within or without the State of Illinois, for the holding of additional regular meetings without other notice than such resolution. SECTION 4. SPECIAL MEETINGS. Special meetings of the board of directors may be called by or at the request of the president or any two directors. The person or persons authorized to call special meetings of the board of directors may fix any place, either within or without the State of Illinois, as the place for holding any special meeting of the board of directors called by them. SECTION 5. NOTICE. Notice of any special meeting shall be given at least ten days previous thereto by written notice delivered personally or mailed to each director at his business address, or by telegram. If mailed, such notice shall be deemed to be delivered when deposited in the United States mail so addressed, with postage thereon prepaid. If notice be given by telegram, such notice shall be deemed to be delivered when the telegram is delivered to the telegraph company. Any director may waive notice of any meeting. The attendance of a director at any meeting shall constitute a waiver of notice of such meeting, except where a director attends a meeting for the express purpose of objecting to the transaction of any business because the meeting is not lawfully called or convened. Neither the business to be transacted at, nor the purpose of, any regular or special meeting of the board of directors need be specified in the notice or waiver of notice of such meeting. SECTION 6. QUORUM. A majority of the number of directors fixed by these by-laws shall constitute a quorum for transaction of business at any meeting of the board of directors, provided, that if less than a majority of such number of directors are present at said meeting, a majority of the directors present may adjourn the meeting from time to time without further notice. SECTION 7. MANNER OF ACTING. The act of the majority of the directors present at a meeting at which a quorum is present shall be the act of the board of directors. SECTION 8. VACANCIES. Any vacancy occurring in the board of directors and any directorship to be filled by reason of an increase in the number of directors, may be filled by election at an annual meeting or at a special meeting of shareholders called for that purpose. SECTION 9. INFORMAL ACTION BY DIRECTORS. Unless specifically prohibited by the articles of incorporation or by-laws, any action required to be taken at a meeting of the board of directors, or any other action which may betaken at a meeting of the board of directors or the executive committee thereof, may be taken without a meeting if a consent in writing, setting forth the action so taken, shall be signed by all the directors entitled to vote with respect to the subject matter thereof, or by all the members of such committee, as the case may be. Any such consent signed by all the directors or all the members of the executive committee shall have the same effect as a unanimous vote, and may be stated as such in any document filed with the Secretary of State. SECTION 10. COMPENSATION. The board of directors, by the affirmative vote of a majority of directors then in office, and irrespective of any personal interest of any of its members, shall have authority to establish reasonable compensation of all directors for services to the corporation as directors, officers or otherwise. By resolution of the board of directors the directors may be paid their expenses, if any, of attendance at each meeting of the board. SECTION 11. PRESUMPTION OF ASSENT. A director of the corporation who is present at a meeting of the board of directors at which action on any corporate matter is taken shall be conclusively presumed to have assented to the action taken unless his dissent shall be entered in the minutes of the meeting or unless he shall file his written dissent to such action with the person acting as the secretary of the meeting before the adjournment thereof or shall forward such dissent by registered mail to the secretary of the corporation immediately after the adjournment of the meeting. Such right to dissent shall not apply to a director who voted in favor of such action. ARTICLE IV OFFICERS SECTION 1. NUMBER. The officers of the corporation shall be a president, one or more vice-presidents (the number thereof to be determined by the board of directors), a treasurer, and a secretary, and such assistant treasurers, assistant secretaries or other officers as may be elected or appointed by the board of directors. Any two or more offices may be held by the same person, except the offices of president and secretary. SECTION 2. ELECTION AND TERM OF OFFICE. The officers of the corporation shall be elected annually by the board of directors at the first meeting of the board of directors held after each annual meeting of shareholders. If the election of officers shall not be held at such meeting, such election shall be held as soon thereafter as conveniently may be. Vacancies may be filled or new offices filled at any meeting of the board of directors. Each officer shall hold office until his successor shall have been duly elected and shall have qualified or until his death or until he shall resign or shall have been removed in the manner hereinafter provided. Election or appointment of an officer or agent shall not of itself create contract rights. SECTION 3. REMOVAL. Any officer or agent elected or appointed by the board of directors may be removed by the board of directors whenever in its judgment the best interests of the corporation would be served thereby, but such removal shall be without prejudice to the contract rights, if any, of the person so removed. SECTION 4. VACANCIES. A vacancy in any office because of death, resignation, removal, is qualification or otherwise, may be filled by the board of directors for the unexpired portion of the term. SECTION 5. PRESIDENT. The president shall be the principal executive officer of the corporation and shall in general supervise and control all of the business and affairs of the corporation. He shall preside at all meetings of the shareholders and of the board of directors. He may sign, with the secretary or any other proper officer of the corporation thereunto authorized by the board of directors, certificates for shares of the corporation, any deeds, mortgages, bonds, contracts, or other instruments which the board of directors has authorized to be executed, except in cases where the signing and execution thereof shall be expressly delegated by the board of directors or by these by-laws to some other officer or agent of the corporation, or shall be required by law to be otherwise signed or executed; and in general shall perform all duties incident to the office of president and such other duties as may be prescribed by the board of directors from time to time. SECTION 6. THE VICE-PRESIDENTS. In the absence of the president or in the event of his inability or refusal to act, the vice-president (or in the event there be more than one vice-president, the vice presidents in the order designated, or in the absence of any designation, then in the order of their election) shall perform the duties of the president, and when so acting, shall have all the powers of and be subject to all the restrictions upon the president. Any vice-president may sign, with the secretary or an assistant secretary, certificates for shares of the corporation; and shall perform such other duties as from time to time may be assigned to him by the president or by the board of directors. SECTION 7. THE TREASURER. If required by the board of directors, the treasurer shall give a bond for the faithful discharge of his duties in such sum and with such surety or sureties as the board of directors shall determine. He shall: (a) have charge and custody of and be responsible for all funds and securities of the corporation; receive and give receipts for moneys due and payable to the corporation from any source whatsoever, and deposit all such moneys in the name of the corporation in such banks, trust companies or other depositaries as shall be selected in accordance with the provisions of Article V of these by-laws; (b) in general perform all the duties incident to the office of treasurer and such other duties as from to time may be assigned to him by the president or by the board of directors. SECTION 8. THE SECRETARY. The secretary shall: (a) keep the minutes of the shareholders' and of the board of directors' meetings in one or more books provided for that purpose; (b) see that all notices are duly given in accordance with the provisions of these by-laws or as required by law; (c) be custodian of the corporate records and of the seal of the corporation and see that the seal of the corporation is affixed to all certificates for shares prior to the issue thereof and to all documents, the execution of which on behalf of the corporation under its seal is duly authorized in accordance with the provisions of these by-laws; (d) keep a register of the post-office address of each shareholder which shall be furnished to the secretary by such shareholder; (e) sign with the president, or a vice-president, certificates for shares of the corporation, the issue of which shall have been authorized by resolution of the board of directors; (f) have general charge of the stock transfer books of the corporation; (g) in general perform all duties incident to the office of secretary and such other duties as from time to time may be assigned to him by the president or by the board of directors. SECTION 9. ASSISTANT TREASURERS AND ASSISTANT SECRETARIES. The assistant treasurers shall respectively, if required by the board of directors, give bonds for the faithful discharge of their duties in such sums and with such sureties as the board of directors shall determine. The assistant secretaries as thereunto authorized by the board of directors may sign with the president or a vice-president certificates for shares of the corporation, the issue of which shall have been authorized by a resolution of the board of directors. The assistant treasurers and assistant secretaries, in general, shall perform such duties as shall be assigned to them by the treasurer or the secretary, respectively, or by the president or the board of directors. SECTION 10. SALARIES. The salaries of the officers shall be fixed from time to time by the board of directors and no officer shall be prevented from receiving such salary by reason of the fact that he is also a director of the corporation. ARTICLE V CONTRACTS, LOANS, CHECKS AND DEPOSITS SECTION 1. CONTRACTS. The board of directors may authorize any officer or officers, agent or agents, to enter into any contract or execute and deliver any instrument in the name of and on behalf of the corporation, and such authority may be general or confined to specific instances. SECTION 2. LOANS. No loans shall be contracted on behalf of the corporation and no evidences of indebtedness shall be issued in its name unless authorized by a resolution of the board of directors. Such authority may be general or confined to specific instances. SECTION 3. CHECKS, DRAFTS, ETC. All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the corporation, shall be signed by such officer or officers, agent or agents of the corporation and in such manner as shall from time to time be determined by resolution of the board of directors. SECTION 4. DEPOSITS. All funds of the corporation not otherwise employed shall be deposited from time to time to the credit of the corporation in such banks, trust companies or other depositaries as the board of directors may select. ARTICLE VI CERTIFICATES FOR SHARES AND THEIR TRANSFER SECTION 1. CERTIFICATES FOR SHARES. Certificates representing shares of the corporation shall be in such form as may be determined by the board of directors. Such certificates shall be signed by the president or a vice-president and by the secretary or an assistant secretary and shall be sealed with the seal of the corporation. All certificates for shares shall be consecutively numbered or otherwise identified. The name of the person to whom the shares represented thereby are issued, with the number of shares and date of issue, shall be entered on the books of the corporation. All certificates surrendered to the corporation for transfer shall be cancelled and no new certificate shall be issued until the former certificate for a like number of shares shall have been surrendered and cancelled, except that in case of a lost, destroyed or mutilated certificate, a new one may be issued therefor upon such terms and indemnity to the corporation as the board of directors may prescribe. SECTION 2. TRANSFERS OF SHARES. Transfers of shares of the corporation shall be made only on the books of the corporation by the holder of record thereof or by his legal representative, who shall furnish proper evidence of authority to transfer, or by his attorney thereunto authorized by power of attorney duly executed and filed with the secretary of the corporation, and on surrender for cancellation of the certificate for such shares, the person in whose name shares stand on the books of the corporation shall be deemed the owner thereof for all purposes as regards the corporation. ARTICLE VII FISCAL YEAR The fiscal year of the corporation shall begin on the first day of January in each year and end on the last day of December in each year. ARTICLE VIII DIVIDENDS The board of directors may from time to time, declare, and the corporation may pay, dividends on its outstanding shares in the manner and upon the terms and conditions provided by law and its articles of incorporation. ARTICLE IX SEAL The board of directors shall provide a corporate seal which shall be in the form of a circle and shall have inscribed thereon the name of the corporation and the words, "Corporate Seal, Illinois." ARTICLE X WAIVER OF NOTICE Whenever any notice whatever is required to be given under the provisions of these by-laws or under the provisions of the articles of incorporation or under the provisions of The Business Corporation Act of the State of Illinois, a waiver thereof in writing, signed by the person or persons entitled to such notice, whether before or after the time stated therein, shall be deemed equivalent to the giving of such notice. ARTICLE XI AMENDMENTS These by-laws may be altered, amended or repealed and new by-laws may be adopted at any meeting of the board of directors of the corporation by a majority vote of the directors present at the meeting. EX-3.22 21 file020.txt ARTICLES OF INCORPORATION OF LUMENX CORPORATION. ARTICLES OF INCORPORATION OF LUMENX CORPORATION The undersigned, desiring to form a corporation, for profit, under Sections 1701.01 et seq. of the Ohio Revised Code, do hereby state the following: FIRST: The name of the corporation shall be LUMENX CORPORATION. SECOND: The place in Ohio where its principal office is to be located is Cleveland, Cuyahoga County, Ohio. THIRD: The purpose(s) for which the corporation is formed is: To engage in any lawful act or activity for which corporations may be formed under this chapter. FOURTH: The number of shares which the corporation is authorized to have outstanding is: One Thousand (1,000) Common Stock without par value. The amount of stated capital with which the corporation will begin business is One Hundred Dollars ($100.00). (See Attached for additional provisions) IN WITNESS WHEREOF, we have hereunto subscribed our names, the 12th day of March, 1993. /s/ F.V. Villanueva, Incorporator -------------------- /s/ K.A. Rake, Incorporator -------------- /s/ M.J. Janiszewski, Incorporator --------------------- ATTACHMENT FOR LumenX Corporation (An Ohio Corporation) FIFTH: No stockholder of this corporation shall by reason of his holding shares of any class have any preemptive or preferential right to purchase or subscribe to any shares of any class of this corporation, now or hereafter to be authorized, or any notes, debentures, bonds, or other securities convertible into or carrying options or warrants to purchase shares of any class, now or hereafter to be authorized, whether or not the issuance of any such shares, or such notes, debentures, bonds or other securities, would adversely affect the dividend or voting rights of such stockholder, other than such rights, if any, as the board of directors, in its discretion from time to time may grant, and at such price as the board of directors, in its discretion may fix; and the board of directors may issue shares of any class of this corporation, or any notes, debentures, bonds, or other securities convertible into or carrying options or warrants to purchase shares of any class, without offering any such shares of any class, either in whole or in part, to the existing stockholders of any class. SIXTH: Indemnification of directors, officers and employees shall be as follows: 1. The Corporation shall indemnify each person who is or was a director, officer or employee of the corporation, or of any other corporation, partnership, joint venture, trust or other enterprise which he is serving or served in any capacity at the request of the corporation, against any and all liability and reasonable expense that may be incurred by him in connection with or resulting from any claim, action, suit or proceeding (whether actual or threatened, brought by or in the right of the corporation or such other corporation, partnership, joint venture, trust or other enterprise, or otherwise, civil, criminal, administrative, investigative, or in connection with an appeal relating thereto), in which he may become involved, as a party or otherwise, by reason of his being or having been a director, officer or employee of the corporation or of such other corporation, partnership, joint venture, trust or other enterprise or by reason of any past or future action taken or not taken in his capacity as such director, officer or employee, whether or not he continues to be such at the time such liability or expense is incurred, provided that such person acted in good faith and in a manner he reasonably believed to be in the best interests of the corporation or such other corporation, partnership, joint venture, trust or other enterprise, as the case may be, and, in addition, in any criminal action or proceedings, had no reasonable cause to believe that his conduct was unlawful. Notwithstanding the foregoing, there shall be no indemnification (a) as to amounts paid or payable to the corporation or such other corporation, partnership, joint venture, trust or other enterprise, as the case may be, for or based upon the director, officer or employee having gained in fact any personal profit or advantage to which he was not legally entitled: (b) as to amounts paid or payable to the corporation for an accounting of profits in fact made from the purchase or sale of securities of the corporation within the meaning of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any state statutory law; or (c) with respect to matters as to which indemnification would be in contravention of the laws of the State of Indiana or of the United States of America, whether as a matter of public policy or pursuant to statutory provision. 2. Any such director, officer or employee who has been wholly successful, on the merits or otherwise, with respect to any claim, action, suit or proceeding of the character described herein shall be entitled to indemnification as of right, except to the extent he has otherwise been indemnified. Except as provided in the preceding sentence, any indemnification hereunder shall be granted by the corporation, but only if (a) the Board of Directors, acting by a quorum consisting of directors who are not parties to or who have been wholly successful with respect to such claim, action, suit or proceeding, shall find that the directors, officer or employee has met the applicable standards of conduct set forth in this Article SIX; or (b) outside legal counsel engaged by the Corporation (who may be regular counsel of the corporation) shall deliver to the corporation its written opinion that such director, officer or employee has met such applicable standards, in an action brought either by the corporation, or by the director, officer of employee seeking indemnification, applying de novo such action, suit or proceeding, civil or criminal, by judgment, settlement (whether with or without court approval) or conviction or upon a plea of guilty or of nolo contendere, or its equivalent, shall not create a presumption that a director, officer or employee did not meet the applicable standards of conduct set forth in this Article SIX. 3. As used in this Article SIX, the term "liability" shall mean amounts paid in settlement or in satisfaction of judgments or finds or penalties, and the term "expense" shall include, but shall not be limited to, attorneys' fees and disbursements, incurred in connection with the claim action, suit or proceeding. The corporation may advance expenses to, or where appropriate may at its option and expense undertake the defense of, any such director, officer or employee upon receipt of an undertaking by or on behalf of such person to repay such expenses if it should ultimately be determined that the person is not entitled to indemnification under this Article SIX. 4. The provisions of this Article SIX shall be applicable to claims, actions, suits or proceedings made or commenced after the adoption hereof, whether arising from acts or omissions to act occurring before or after the adoption hereof. If several claims, issues or matters of action are involved, any such director, officer or employee may be entitled to indemnification as to some matters even though he is not so entitled as to others. The rights of indemnification provided hereunder shall be in addition to any rights to which any director, officer of employee concerned may otherwise be entitled by contract or as a matter of law, and shall inure to the benefit of the heirs, executors and administrators of any such director, officer of employee. ORIGINAL APPOINTMENT OF STATUTORY AGENT The undersigned being at least a majority of the incorporators of LUMENX CORPORATION hereby appoint C T CORPORATION SYSTEM to be statutory agent upon whom any process, notice or demand required or permitted by statute to be served upon the corporation may be served. The complete address of the agent is: 815 Superior Avenue, N.E. Cleveland, Ohio 44114 /s/ F.V. Villanueva, Incorporator ------------------- /s/ K.A. Rake, Incorporator -------------- /s/ M.J. Janiszewski, Incorporator --------------------- ACCEPTANCE OF APPOINTMENT The undersigned, C T CORPORATION SYSTEM, named herein as the statutory agent for LUMENX CORPORATION hereby acknowledges and accepts the appointment of statutory agent for said corporation. C T CORPORATION SYSTEM By: /s/ R.S. Barba , Assistant Secretary ----------------------- EX-3.23 22 file021.txt BYLAWS OF LUMENX CORPORATION. LumenX Corporation REGULATIONS ARTICLE I OFFICES Section 1. The principal office shall be in the City of Cleveland, County of Cuyahoga, State of Ohio. Section 2. The corporation may also have offices at such other places as the board of directors may from time to time determine or the business of the corporation may require. ARTICLE II SHAREHOLDERS' MEETINGS Section 1. Meetings of the shareholders shall be in the City of Muncie, State of Indiana. Section 2. An annual meeting of the shareholders, commencing with the year 1994, shall be held on such date and time as may be designated by the board of directors when they shall elect by a plurality vote a board of directors, and transact such other business as may properly be brought before the meeting. Section 3. Written notice stating the time, place and purpose of a meeting of the shareholders shall be given either by personal delivery or by mail not less than seven (7) days nor more than sixty (60) days before the date of the meeting to each shareholder of record entitled to notice of the meeting by or at the direction of the president or a vice president or the secretary or an assistant secretary. If mailed, such notice shall be addressed to the shareholder at his address as it appears on the records of the corporation. Notice of adjournment of a meeting need not be given if the time and place to which it is adjourned are fixed and announced at such meeting. Section 4. Meetings of the shareholders may be called by the president or a vice president, or the directors by action at a meeting, or a majority of the directors acting without a meeting or by the secretary of the corporation upon the order of the board of directors, or by the persons who hold twenty-five per cent of all the shares outstanding and entitled to vote thereat. Upon the request in writing delivered either in person or by registered mail to the president or secretary by any persons entitled to call a meeting of the shareholders, such officer shall forthwith cause notice to be given to the shareholders entitled thereto. If such request be refused, then the persons making such request may call a meeting by giving notice in the manner provided in these regulations. Section 5. Business transacted at any special meeting of shareholders shall be confined to the purposes stated in the notice. Section 6. Upon request of any shareholders at any meeting of shareholders, there shall be produced at such meeting an alphabetically arranged list, or classified lists, of the shareholders of record as of the record date of such meeting, who are entitled to vote, showing their respective addresses and the number and class of shares held by each. Such list or lists when certified by the officer or agent in charge of the transfers of shares shall be prima-facie evidence of the facts shown therein. Section 7. The holders of a majority of the shares issued and outstanding having voting power, present in person or represented by proxy, shall be requisite and shall constitute a quorum at all meetings of shareholders for the transaction of business, except that at any meeting of shareholders called to take any action which is authorized or regulated by statute, in order to constitute a quorum, there shall be present in person or represented by proxy the holders of record of shares entitling them to exercise the voting power required by statute, the articles of incorporation, or these regulations, to authorize or take the action proposed or stated in the notice of the meeting. If, however, such quorum shall not be present or represented at any meeting of the shareholders, the shareholders entitled to vote thereat, present in person or represented by proxy, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum shall be present or represented. At such adjourned meeting at which a quorum shall be present or represented any business may be transacted which might have been transacted at the meeting as originally notified. Section 8. When a quorum is present or represented at any meeting, the vote of the holders of a majority of the stock having voting power, present in person or represented by proxy, shall decide any question brought before such meeting, unless the question is one upon which, by express provision of the statutes or of the articles of incorporation or of these regulations, a different vote is required, in which case such express provision shall govern and control the decision of such question. Section 9. At every meeting of shareholders, each outstanding share having voting power shall entitle the holder thereof to one vote on each matter properly submitted to the shareholders, subject to the provisions with respect to cumulative voting set forth in this section. If notice in writing is given by any shareholder to the president, a vice president or the secretary, not less than forty-eight hours before the time fixed for holding a meeting of the shareholders for the purpose of electing directors if notice of such meeting shall have been given at least ten days prior thereto, and otherwise not less than twenty-four hours before such time, that he desires that the voting at such election shall be cumulative, and if an announcement of the giving of such notice is made upon the convening of the meeting by the chairman or secretary or by or on behalf of the shareholder giving such notice, each shareholder shall have the right to cumulate such voting power as he possesses and to give one candidate as many votes as the number of directors to be elected multiplied by the number of his votes equals, or to distribute his votes on the same principle among two or more candidates, as he sees fit. A shareholder shall be entitled to vote even though his shares have not been fully paid, but shares upon which an installment of the purchase price is overdue and unpaid shall not be voted. Section 10. A person who is entitled to attend a shareholders' meeting, to vote thereat, or to execute consents, waivers, or releases, may be represented at such meeting or vote thereat, and execute consents, waivers, and releases, and exercise any of his other rights, by proxy or proxies appointed by a writing signed by such person. A telegram or cablegram appearing to have been transmitted by such person, or a photographic, photostatic, or equivalent reproduction of a writing, appointing a proxy is sufficient writing. No appointment of a proxy shall be valid after the expiration of eleven months after it is made unless the writing specifies the date on which it is to expire or the length of time it is to continue in force. Section 11. Unless the articles or these regulations prohibit the authorization or taking of any action of the shareholders without a meeting, any action which may be authorized or taken at a meeting of the shareholders may be authorized or taken without a meeting with the affirmative vote or approval of, and in a writing or writings signed by all the shareholders who would be entitled to notice of a meeting of the shareholders held for such purpose, which writing or writings shall be filed with or entered upon the records of the corporation. ARTICLE III DIRECTORS Section 1. The number of directors, which shall not be less than three, may be fixed or changed at a meeting of shareholders called for the purpose of electing directors. The first board shall consist of three (3) directors. Except where the law, the articles of incorporation, or these regulations require any action to be authorized or taken by shareholders, all of the authority of the corporation shall be exercised by the directors. The directors shall be elected at the annual meeting of shareholders, except as provided in Section 2 of this article, and each director shall hold office until the next annual meeting of the shareholders and until his successor is elected and qualified, or until his earlier resignation, removal from office, or death. When the annual meeting is not held or directors are not elected thereat, they may be elected at a special meeting called for that purpose. Directors need not be shareholders. Section 2. If the office of any director or directors becomes vacant by reason of death, resignation, retirement, disqualification, removal from office, or otherwise, the remaining directors, though less than a quorum, shall by a vote of a majority of their number, choose a successor or successors, who shall hold office for the unexpired term in respect to which such vacancy occurred. Section 3. For their own government the directors may adopt by-laws not inconsistent with the articles of incorporation or these regulations. Section 4. The directors may hold their meeting, and keep the books of the corporation, outside the State of Ohio, at such places as they may from time to time determine but, if no transfer agent is appointed to act for the corporation in Ohio, it shall keep an office in Ohio at which shares shall be transferable and at which it shall keep books in which shall be recorded the names and addresses of all shareholders and all transfers of shares. COMMITTEES Section 5. The directors may at any time elect three or more of their number as an executive committee or other committees, which shall, in the interval between meetings of the board of directors, exercise such powers and perform such duties as may from time to time be prescribed by the board of directors. Any such committee shall be subject at all times to the control and direction of the board of directors. Unless otherwise ordered by the board of directors, any such committee may act by a majority of its members at a meeting or by a writing or writings signed by all its members. An act or authorization of an act by any such committee within the authority delegated to it shall be as effective for all purposes as the act or authorization of the board of directors. Section 6. The committee shall keep regular minutes of their proceedings and report the same to the board when required. COMPENSATION OF DIRECTORS Section 7. Directors, as such, shall not receive any stated salary for their services but, by resolution of the board, a fixed sum, and expenses of attendance if any, may be allowed for attendance at each regular or special meeting of the board; provided that nothing herein contained shall be construed to preclude any director from serving the corporation in any other capacity and receiving compensation therefor. Section 8. Members of the executive committee or other committees may be allowed like compensation for attending committee meetings. MEETINGS OF THE BOARD Section 9. The first meeting of each newly elected board shall be held at such time and place, either within or without the State of Ohio, as shall be fixed by the vote of the shareholders at the annual meeting, of which two days' notice shall be delivered personally or sent by mail or telegram to each newly elected director. Such meeting may be held at any place or time as may be fixed by the consent in writing of all the directors, given either before or after the meeting. Section 10. Regular meetings of the board may be held at such time and place, either within or without the State of Ohio, as shall be determined by the board. Section 11. Special meetings of the board may be called by the president, any vice president, or by two directors on two days' notice to each director, either delivered personally or sent by mail, telegram or cablegram. The notice need not specify the purposes of the meeting. Section 12. At all meetings of the board (SC) directors shall be necessary and sufficient to constitute a quorum for the transaction of business, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the board of directors, except as may be otherwise specifically provided by statute or by the articles of incorporation or by these regulations. If a quorum shall not be present at any meeting of directors, the directors present thereat may adjourn the meeting from time to time, until a quorum shall be present. Notice of adjournment of a meeting need not be given to absent directors if the time and place are fixed at the meeting adjourned. Section 13. Unless the articles or these regulations prohibit the authorization or taking of any action of the directors without a meeting, any action which may be authorized or taken at a meeting of the directors may be authorized or taken without a meeting with the affirmative vote or approval of, and in a writing or writings signed by all the directors, which writing or writings shall be filed with or entered upon the records of the corporation. REMOVAL OF DIRECTORS Section 14. All the directors, or all the directors of a particular class, if any, or any individual director may be removed from office, without assigning any cause, by the vote of the holders of a majority of the voting power entitling them to elect directors in place of those to be removed, provided that unless all the directors, or all the directors of a particular class, if any, are removed, no individual director shall be removed in case the votes of a sufficient number of shares are cast against his removal which, is cumulatively voted at an election of all the directors, or all the directors of a particular class, if any, as the case may be, would be sufficient to elect at least one director. In case of any such removal, a new director may be elected at the same meeting for the unexpired term of each director removed. Failure to elect a director to fill the unexpired term of any director removed shall be deemed to create a vacancy in the board. ARTICLE IV NOTICES Section 1. Notices to directors and shareholders shall be in writing and delivered personally or mailed to the directors or shareholders at their addresses appearing on the books of the corporation. Notice by mail shall be deemed to be given at the time when the same shall be mailed. Notice to directors and shareholders may also be given by telegram or telephone. Section 2. Notice of the time, place and purposes of any meeting of shareholders or directors as the case may be, whether required by law, the articles of incorporation or these regulations, may be waived in writing, either before or after the holding of such meeting, by any shareholder, or by any director, which writing shall be filed with or entered upon the records of the meeting. ARTICLE V OFFICERS Section 1. The officers of the corporation shall be chosen by the directors and shall be a president, a vice president, a secretary and a treasurer. The board of directors may also choose additional vice presidents, and one or more assistant secretaries and assistant treasurers. Any two or more of such offices except the offices of president and vice president, may be held by the same person, but no officer shall execute, acknowledge or verify any instrument in more than one capacity if such instrument is required by law or by these regulations to be executed, acknowledged or verified by any two or more officers. Section 2. The board of directors at its first meeting after each annual meeting of shareholders shall choose a president, a vice president, a secretary and a treasurer, none of whom need be a member of the board. Section 3. The board may appoint such other officers and agents as it shall deem necessary, who shall hold their offices for such terms and shall exercise such powers and perform such duties as shall be determined from time to time by the board. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the board of directors. Section 5. The officers of the corporation shall hold office until their successors are chosen and qualify in their stead. Any officer elected or appointed by the board of directors may be removed at any time by the affirmative vote of a majority of the whole board of directors. If the office of any officer or officers becomes vacant for any reason, the vacancy shall be filled by the board of directors. THE PRESIDENT Section 6. The president shall be the chief executive officer of the corporation; he shall preside at all meetings of the shareholders and directors, shall be ex officio a member of the executive committee or any other committee, shall have general and active management of the business of the corporation, and shall see that all orders and resolutions of the board are carried into effect. Section 7. He shall execute bonds, mortgages and other contracts requiring a seal, under the seal of the corporation, except where required or permitted by law to be otherwise signed and executed and except where the signing and execution thereof shall be expressly delegated by the board of directors to some other officer or agent of the corporation. THE VICE PRESIDENTS Section 8. The vice presidents in the order of their seniority, unless otherwise determined by the board of directors, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president. They shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE SECRETARY AND ASSISTANT SECRETARIES Section 9. The secretary shall attend all meetings of the board of directors and all meetings of the shareholders and record all the proceedings of the meetings of the corporation and of the board of directors in a book to be kept for that purpose and shall perform like duties for the standing committees when required. He shall give, or cause to be given, notice of all meetings of the shareholders and special meetings of the board of directors, and shall perform such other duties as may be prescribed by the board of directors or president, under whose supervision he shall be. He shall keep in safe custody the seal of the corporation and, when authorized by the board of directors, affix the same to any instrument requiring it and, when so affixed, it shall be attested by his signature or by the signature of the treasurer or an assistant secretary. Section 10. The assistant secretaries in the order of their seniority unless otherwise determine by the board of directors, shall, in the absence or disability of the secretary, perform the duties and exercise the powers of the secretary. They shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. THE TREASURER AND ASSISTANT TREASURERS Section 11. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the board of directors. Section 12. He shall disburse the funds of the corporation as may be ordered by the board of directors, taking proper vouchers for such disbursements, and shall render to the president and the board of directors, at its regular meetings, or when the board of directors so requires, an account of all his transactions as treasurer and of the financial condition of the corporation. Section 13. If required by the board of directors, he shall give the corporation a bond (which shall be renewed every six years) in such sum and with such surety or sureties as shall be satisfactory to the board of directors for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office, of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. Section 14. The assistant treasurers in the order of their seniority, unless otherwise determined by the board of directors, shall, in the absence or disability of the treasurer, perform the duties and exercise the powers of the treasurer. They shall perform such other duties and have such other powers as the board of directors may from time to time prescribe. ARTICLE VI INDEMNIFICATION Section 1. The Corporation shall indemnify each person who is or was a director, officer or employee of the corporation, or of any other corporation, partnership, joint venture, trust or other enterprise which he is serving or served in any capacity at the request of the corporation, against any and all liability and reasonable expense that may be incurred by him in connection with or resulting from any claim, action, suit or proceeding (whether actual or threatened, brought by or in the right of the corporation or such other corporation, partnership, joint venture, trust or other enterprise, or otherwise, civil, criminal, administrative, investigative, or in connection with an appeal relating thereto), in which he may become involved, as a party or otherwise, by reason of his being or having been a director, officer or employee of the corporation or of such other corporation, partnership, joint venture, trust or other enterprise or by reason of any past or future action taken or not taken in his capacity as such director, officer or employee, whether or not he continues to be such at the time such liability or expense is incurred, provided that such person acted in good faith and in a manner he reasonably believed to be in the best interests of the corporation or such other corporation, partnership, joint venture, trust or other enterprise, as the case may be, and, in addition, in any criminal action or proceedings, had no reasonable cause to believe that his conduct was unlawful. Notwithstanding the foregoing, there shall be no indemnification (a) as to amounts paid or payable to the corporation or such other corporation, partnership, joint venture, trust or other enterprise, as the case may be, for or based upon the director, officer or employee having gained in fact any personal profit or advantage to which he was not legally entitled: (b) as to amounts paid or payable to the corporation for an accounting of profits in fact made from the purchase or sale of securities of the corporation within the meaning of section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any state statutory law; or (c) with respect to matters as to which indemnification would be in contravention of the laws of the State of Indiana or of the United States of America, whether as a matter of public policy or pursuant to statutory provisions. Section 2. Any such director, officer or employee who has been wholly successful, on the merits or otherwise, with respect to any claim, action, suit or proceeding of the character described herein shall be entitled to indemnification as of right, except to the extent he has otherwise been indemnified. Except as provided in the preceding sentence, any indemnification hereunder shall be granted by the corporation, but only if (a) the Board of Directors, acting by a quorum consisting of directors who are not parties to or who have been wholly successful with respect to such claim, action, suit or proceeding, shall find that the directors, officer or employee has met the applicable standards of conduct set forth in this Article SIX; or (b) outside legal counsel engaged by the Corporation (who may be regular counsel of the corporation) shall deliver to the corporation its written opinion that such director, officer or employee has met such applicable standards, in an action brought either by the corporation, or by the director, officer of employee seeking indemnification, applying de novo such action, suit or proceeding, civil or criminal, by judgment, settlement (whether with or without court approval) or conviction or upon a plea of guilty or of nolo contendere, or its equivalent, shall not create a presumption that a director, officer or employee did not meet the applicable standards of conduct set forth in this Article SIX. Section 3. As used in this Article SIX, the term "liability" shall mean amounts paid in settlement or in satisfaction of judgments or finds or penalties, and the term "expense" shall include, but shall not be limited to, attorneys' fees and disbursements, incurred in connection with the claim, action, suit or proceeding. The corporation may advance expenses to, or where appropriate may at its option and expense undertake the defense of, any such director, officer or employee upon receipt of an undertaking by or on behalf of such person to repay such expenses if it should ultimately be determined that the person is not entitled to indemnification under this Article SIX. Section 4. The provisions of this Article SIX shall be applicable to claims, actions, suits or proceedings made or commenced after the adoption hereof, whether arising from acts or omissions to act occurring before or after the adoption hereof. If several claims, issues or matters of action are involved, any such director, officer or employee may be entitled to indemnification as to some matters even though he is not so entitled as to others. The rights of indemnification provided hereunder shall be in addition to any rights to which any director, officer or employee concerned may otherwise be entitled by contract or as a matter of law, and shall inure to the benefit of the heirs, executors and administrators of any such director, officer of employee. ARTICLE VII CERTIFICATES OF STOCK Section 1. Each holder of shares is entitled to one or more certificates, signed by the president or a vice president and by the secretary, an assistant secretary, the treasurer, or an assistant treasurer of the corporation, which shall certify the number and class of shares held by him in the corporation. Every certificate shall state that the corporation is organized under the laws of Ohio, the name of the person to whom the shares represented by the certificate are issued, the number of shares represented by the certificate, and the par value of each share represented by it or that the shares are without par value, and if the shares are classified, the designation of the class, and the series, if any, of the shares represented by the certificate. There shall also be stated on the face or back of the certificate the express terms, if any, of the shares represented by the certificate and of the other class or classes and series of shares, if any, which the corporation is authorized to issue, or a summary of such express terms, or that the corporation will mail to the shareholder a copy of such express terms without charge within five days after receipt of written request therefor, or that a copy of such express terms is attached to and by reference made a part of such certificate and that the corporation will mail to the shareholder a copy of such express terms without charge within five days after receipt of written request therefor if the copy has become detached from the certificate. Section 2. In case of any restriction on transferability of shares or reservation of lien thereon, the certificate representing such shares shall set forth on the face or back thereof the statements required by the General Corporation Law of Ohio to make such restrictions or reservations effective. Section 3. Where a certificate is countersigned by an incorporated transfer agent or registrar, the signature of any of the officers specified in section 1 of this article may be facsimile, engraved, stamped, or printed. Although any officer of the corporation, whose manual or facsimile signature has been placed upon such certificate, ceases to be such officer before the certificate is delivered, such certificate nevertheless shall be effective in all respects when delivered. LOST CERTIFICATES Section 4. The board of directors may direct a new certificate or certificates to be issued in place of any certificate or certificates theretofore issued by the corporation alleged to have been lost or destroyed, upon the making of an affidavit of that fact by the person claiming the certificate of stock to be lost or destroyed. When authorizing such issue of a new certificate or certificates, the board of directors may, in its discretion and as a condition precedent to the issuance thereof, require the owner of such lost or destroyed certificate or certificates, or his legal representative, to advertise the same in such manner as it shall require and/or to give the corporation a bond in such sum as it may direct as indemnity against any claim that may be made against the corporation with respect to the certificate alleged to have been lost or destroyed. TRANSFERS OF STOCK Section 5. Upon surrender to the corporation or the transfer agent of the corporation of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. Section 6. For any lawful purpose, including without limitation, (1) the determination of the shareholders who are entitled to receive notice of or to vote at a meeting of shareholders; (2) receive payment of any dividend or distribution; (3) receive or exercise rights of purchase of or subscription for, or exchange or conversion of, shares or other securities, subject to contract rights with respect thereto; or (4) participate in the execution of written consents, waivers, or releases, the directors may fix a record date which shall not be a date earlier than the date on which the record date is fixed and, in the cases provided for in clauses (1), (2) and (3) above, shall not be more than sixty days, preceding the date of the meeting of the shareholders, or the date fixed for the payment of any dividend or distribution, or the date fixed for the receipt or the exercise of rights, as the case may be. Section 7. If a meeting of the shareholders is called by persons entitled to call the same, or action is taken by shareholders without a meeting, and if the directors fail or refuse, within such time as the persons calling such meeting or initiating such other action may request, to fix a record date for the purpose of determining the shareholders entitled to receive notice of or vote at such meeting, or to participate in the execution of written consents, waivers, or releases, then the persons calling such meeting or initiating such other action may fix a record date for such purposes, subject to the limitations set forth in section 6 of this article. Section 8. The record date for the purpose of clause (1) of section 6 of this article shall continue to be the record date for all adjournments of such meeting, unless the directors or the persons who shall have fixed the original record date shall, subject to the limitations set forth in section 6 of this article, fix another date, and in case a new record date is so fixed, notice thereof and of the date to which the meeting shall have been adjourned shall be given to shareholders of record as of said date in accordance with the same requirements as those applying to a meeting newly called. Section 9. The directors may close the share transfer books against transfers of shares during the whole or any part of the period provided for in section 6 of this article, including the date of the meeting of the shareholders and the period ending with the date, if any, to which adjourned. If no record date is fixed therefor, the record date for determining the shareholders who are entitled to receive notice of, or who are entitled to vote at, a meeting of shareholders, shall be the date next preceding the day on which notice is given, or the date next preceding the day on which the meeting is held, as the case may be. Section 10. The corporation shall be entitled to recognize the exclusive rights of a person registered on its books as the owner of shares to receive dividends, and to vote as such owner, and shall not be bound to recognize any equitable or other claim to or interest in such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as otherwise provided by the laws of the state of Ohio. ARTICLE VIII GENERAL PROVISIONS DIVIDENDS Section 1. The board of directors may declare and the corporation may pay dividends and distributions on its outstanding shares in cash, property, or its own shares pursuant to law and subject to the provisions of its articles of incorporation. Section 2. Before payment of any dividend or distribution, there may be set aside out of any funds of the corporation available for dividends or distributions such sum or sums as the directors from time to time, in their absolute discretion, think proper as a reserve fund to meet contingencies, or for equalizing dividends or distributions, or for repairing or maintaining any property of the corporation, or for such other purposes as the directors shall think conducive to the interests of the corporation, and the directors may modify or abolish any such reserve in the manner in which it was created. ANNUAL STATEMENT Section 3. At the annual meeting of shareholders, or the meeting held in lieu of it, the corporation shall prepare and lay before the shareholders a financial statement consisting of: A balance sheet containing a summary of the assets, liabilities, stated capital, if any, and surplus (showing separately any capital surplus arising from unrealized appreciation of assets, other capital surplus, and earned surplus) of the corporation as of a date not more than four months before such meeting; if such meeting is an adjourned meeting, the balance sheet may be as of a date not more than four months before the date of the meeting as originally convened; and a statement of profit and loss and surplus, including a summary of profits, dividends or distributions paid, and other changes in the surplus accounts of the corporation for the period commencing with the date marking the end of the period for which the last preceding statement of profit and loss required under this section was made and ending with the date of the balance sheet, or in the case of the first statement of profit and loss, from the incorporation of the corporation to the date of the balance sheet. The financial statement shall have appended to it a certificate signed by the president or a vice president or the treasurer or an assistant treasurer or by a public accountant or firm of public accountants to the effect that the financial statement presents fairly the position of the corporation and the results of its operations in conformity with generally accepted accounting principles applied on a basis consistent for the period covered thereby, or to the effect that the financial statements have been prepared on the basis of accounting practices and principles that are reasonable in the circumstances. Section 4. Upon the written request of any shareholder made within sixty days after notice of any such meeting has been given, the corporation, not later than the fifth day after receiving such request or the fifth day before such meeting, whichever is the later date, shall mail to such shareholder a copy of such financial statement. CHECKS Section 5. All checks or demands for money and notes of the corporation shall be signed by such officer or officers as the board of directors may from time to time designate. FISCAL YEAR Section 6. The fiscal year of the corporation shall be fixed by resolution of the board of directors. SEAL Section 7. The corporate seal shall have inscribed thereon the name of the corporation, the year of its organization and the words "Corporate Seal, Ohio." The seal may be used by causing it or a facsimile thereof to be impressed or affixed or in any other manner reproduced. ARTICLE IX AMENDMENTS Section 1. These regulations may be amended or new regulations adopted by the affirmative vote of the holders of shares entitling them to exercise a majority of the voting power on such proposal, at any regular meeting of the shareholders, or at any special meeting of the shareholders if notice of the proposal to amend or add to the regulations be contained in the notice of the meeting, or, without a meeting, by the written consent of the holders of record of shares entitling them to exercise a majority of the voting power on such proposal. EX-3.24 23 file022.txt ARTICLES OF INCORPORATION OF PENN VIDEO, INC. ARTICLES OF INCORPORATION OF PENN VIDEO, INC. ARTICLE I Name The name of the corporation is Penn Video, Inc. (hereinafter referred to as the "Corporation"). ARTILCE II Purpose The purpose for which the Corporation is formed is to engage in the transaction of any or all lawful business which may be conducted, or for which corporations may be incorporated, under the Indiana Business Corporation law. Article III Registered Office and Registered Agent The street address of the Corporation's initial registered office in the State of Indiana is 345 South High Street, Muncie, Indiana 47305; and the name and street address of its initial registered agent is Patrick S. Looney, 345 South High Street, Muncie, Indiana 47305. Article IV Capital Stock Section A. Amount of Capital Stock The total number of shares that may be issued by the Corporation is one thousand (1,000) shares of capital stock without nominal or par value. Section B. Terms All such authorized shares shall be issued as common stock, which are entitled to receive the net assets of the Corporation upon dissolution. The shares of common stock shall be identical with each other in all respects. Section C. Issuance of Stock The Board of Directors shall have authority to authorize and direct the issuance by the Corporation of shares of such stock at such times, in such amounts, to such persons or entities, for such consideration, and upon such terms and conditions as it may determine, subject to the restrictions, limitations, conditions and requirements imposed by the provisions of these Articles of Incorporation, by the provisions of the resolutions approving the issuance of shares, or by the provisions of the Indiana Business Corporation Law. In this respect, the Board of Directors of the Corporation may authorize, at its election, the issuance of some or all of the shares of such stock without certificates. Section D. No Preemptive Rights The shareholders shall have no preemptive rights to subscribe to or purchase any additional issues of shares of the capital stock of the Corporation nor any shares of the capital stock of the Corporation purchased or acquired by the Corporation and not cancelled but held as treasury stock. Article V Voting Rights of Capital Stock Each owner of record (as the record date fixed by the Bylaws or the Board of Directors for any such determination of shareholders) of the shares of the stock shall have one (1) vote for each share of stock standing in his, her or its name on the books of the Corporation with respect to each matter to be voted on, including the election of directors and matters referred to the shareholders, in any meeting of the shareholders. No holder of shares of stock shall have any right of cumulative voting. Article VI Name and Address of Incorporator The name and post office address of the incorporator signing the Articles of Incorporation is:
NAME POST OFFICE ADDRESS George A. Sissel 345 South High Street, Muncie, Indiana 47305
Article VII Board of Directors Section A. Number of Directors The governing body of the Corporation shall be known as the Board of Directors, and the number of directors comprising the Board of Directors shall be specified in or fixed in accordance with the Bylaws of the Corporation. Section B. Qualifications Directors need not be shareholders of the Corporation. A majority of the directors at any time shall be citizens of the United States. Article VIII Name and Address of Initial Directors The name and post office addresses of the initial members of the Board of Directors are:
Donald C. Lewis 345 South High Street, Muncie, Indiana 47305 George A. Sissel 345 South High Street, Muncie, Indiana 47305
Article IX Term of Existence The existence of the Corporation shall commence on October 31, 1988, at 12:01 a.m. and shall thereafter be perpetual. Article X Provisions for Regulations of Business and Conduct of Affairs of the Corporation Section A. Indemnification Indemnification of directors, officers and employees shall be as follows: 1. The Corporation shall indemnify each person who is or was a director, officer or employee of the Corporation, or of any other corporation, partnership, joint venture, trust or other enterprise which he is serving or served in any capacity at the request of the Corporation, against any and all liability and reasonable expense that may be incurred by him in connection with or resulting from any claim, action, suit or proceeding (whether actual or threatened, brought by or in the right of the Corporation or such other corporation, partnership, joint venture, trust or other enterprise, or otherwise, civil, criminal, administrative, investigative, or in connection with an appeal relating thereto), in which he may become involved, as a party or otherwise, by reason of his being or having been a director, officer or employee of the Corporation or of such other corporation, partnership, joint venture, trust or other enterprise or by reason of any past or future action taken or not taken in his capacity as such director, officer or employee, whether or not he continues to be such at the time such liability or expense is incurred, provided that such person acted in good faith and in a manner he reasonably believed to be in the best interests of the Corporation or such other corporation, partnership, joint venture, trust or other enterprise, as the case may be, and, in addition, in any criminal action or proceedings, had no reasonable cause to believe that his conduct was unlawful. Notwithstanding the foregoing, there shall be no indemnification (a) as to amounts paid or payable to the Corporation or such other corporation, partnership, joint venture, trust or other enterprise, as the case may be, for or based upon the director, officer or employee having gained in fact any personal profit or advantage to which he was not legally entitled; (b) as to amounts paid or payable to the Corporation for an accounting of profits in fact made from the purchase or sale of securities of the Corporation within the meaning of Section 16(b) of the Securities Exchange Act of 1934 and amendments thereto or similar provisions of any state statutory law; or (c) with respect to matters as to which indemnification would be in contravention of the laws of the State of Indiana or of the United States of America, whether as a matter of public policy or pursuant to statutory provisions. 2. Any such director, officer or employee who has been wholly successful, on the merits or otherwise, with respect to any claim, action, suit or proceeding of the character described herein shall be entitled to indemnification as of right, except to the extent he has otherwise been indemnified. Except as provided in the preceding sentence, any indemnification hereunder shall be granted by the Corporation, but only if (a) the Board of Directors, acting by a quorum consisting of directors who are not parties to or who have been wholly successful with respect to such claim, action, suit or proceeding, shall find that the director, officer or employee has met the applicable standards of conduct set forth in paragraph 1 of this Section A of Article X; or (b) outside legal counsel engaged by the Corporation (who may be regular counsel of the Corporation) shall deliver to the Corporation its written opinion that such director, officer or employee has met such applicable standards of conduct; or (c) a court of competent jurisdiction has determined that such director, officer or employee has met such standards, in an action brought either by the Corporation, or by the director, officer or employee seeking indemnification, applying de novo such applicable standards of conduct. The termination of any claim, action, suit or proceeding, civil or criminal, by judgment, settlement (whether with or without court approval) or conviction or upon a plea of guilty or of nolo contendere, or its equivalent, shall not create a presumption that a director, officer or employee did not meet the applicable standards of conduct set forth in paragraph 1 of this Section A of Article X. 3. As used in this Section A of Article X, the term "liability" shall mean amounts paid in settlement or in satisfaction of judgments or fines or penalties, and the term "expense" shall include, but shall not be limited to, attorneys' fees and disbursements, incurred in connection with the claim, action, suit or proceeding. The Corporation may advance expenses to, or where appropriate may at its option and expense undertake the defense of, any such director, officer or employee upon receipt of an undertaking by or on behalf of such person to repay such expenses if it should ultimately be determined that the person is not entitled to indemnification under this Section A of Article X. 4. The provisions of this Section A of Article X shall be applicable to claims, actions, suits or proceedings made or commenced after the adoption hereof, whether arising from acts or omissions to act occurring before or after the adoption hereof. If several claims, issues or matters of action are involved, any such director, officer or employee may be entitled to indemnification as to some matters even though he is not so entitled as to others. The rights of indemnification provided hereunder shall be in addition to any rights to which any director, officer or employee concerned may otherwise be entitled by contract or as a matter of law, and shall inure to the benefit of the heirs, executors and administrators of any such director, officer or employee. Section B. Meetings The meetings of the shareholders and the directors of the Corporation may be held either within or without the State of Indiana, and at such place as the Bylaws provide. Section C. Books The books of the Corporation may be kept (subject to any provision contained in the Indiana Business Corporation Law or other applicable statutes) outside the State of Indiana at such place or places as may be designated from time to time by the Board of Directors or in the Bylaws of the Corporation. Article XI Amendment The Corporation reserves the right to amend, alter, change or repeal any provision contained in the Articles of Incorporation, in the manner now or hereafter prescribed by the Indiana Business Corporation Law or by the Articles of Incorporation, and all rights conferred upon shareholders herein are granted subject to this reservation. IN WITNESS WHEREOF, the undersigned being of the incorporator of the Corporation executes the Articles of Incorporation and verifies, subject to the penalties of perjury, that the statements contained herein are true. Dated this 24th day of October, 1989. /s/ George A. Sissel -------------------- EX-3.25 24 file023.txt BYLAWS OF PENN VIDEO, INC. BYLAWS OF PENN VIDEO, INC. (As of November 5,1988) ARTICLE ONE CAPITAL STOCK SECTION A. CLASSES OF STOCK. The capital stock of the corporation shall consist of shares of such kinds and classes, with such designations and such relative rights, preferences, qualifications, limitations and restrictions, including voting rights, and for such consideration as shall be stated in or determined in accordance with the Articles of Incorporation and any amendment or amendments thereof, or the Indiana Business Corporation Law. Consistent with the Indiana Business Corporation Law, capital stock of the corporation owned by the corporation may be referred to and accounted for as treasury stock. SECTION B. CERTIFICATES FOR SHARES. All share certificates shall be consecutively numbered as issued and shall be signed by the president or a vice president and the corporate secretary or any assistant secretary of the corporation. SECTION C. STOCK WITHOUT CERTIFICATES. Notwithstanding the provisions of Section B of this Article One, the board of directors may authorize, at its election, the issuance of some or all of the shares of capital stock of the corporation without certificates. SECTION D. TRANSFER OF SHARES. The shares of the capital stock of the corporation shall be transferred only on the books of the corporation by the holder thereof, or by his attorney, upon the surrender and cancellation of the stock certificate, whereupon a new certificate shall be issued to the transferee. The transfer and assignment of such shares of stock shall be subject to the laws of the State of Indiana. The board of directors shall have the right to appoint and employ one or more stock registrars and/or transfer agents in the State of Indiana or in any other state. ARTICLE TWO SHAREHOLDERS SECTION A. ANNUAL MEETINGS. The regular annual meeting of the shareholders of the corporation shall be held on the fourth Tuesday in April of each year, or on such other date within a reasonable interval after the close of the corporation's last fiscal year as may be designated from time to time by the board of directors, for the election of the directors of the corporation, and for the transaction of such other business as is authorized or required to be transacted by the shareholders. SECTION B. SPECIAL MEETINGS. Special meetings of the shareholders may be called by the president, by the board of directors or by shareholders holding not less than one-fourth of all of the shares of stock outstanding and entitled by the Articles of Incorporation to vote upon the business to be transacted at such meeting. SECTION C. TIME AND PLACE OF MEETINGS. All meetings of the shareholders shall be held at the principal office of the corporation or at such other place within or without the State of Indiana and at such time as may be designated from time to time by the board of directors. ARTICLE THREE DIRECTORS SECTION A. NUMBER AND TERMS OF OFFICE. The business of the corporation shall be controlled and managed in accordance with the Indiana Business Corporation Law by a board of directors. The initial board of directors shall consist of six (6) members. The initial board of directors shall hold office until the first annual meeting of shareholders. Thereafter, the number of directors which shall constitute the whole board shall be determined by resolution of the board of directors, or by the shareholders at the annual meeting, subject to the limitation that the number may not be less than one (1) or more than nine (9). SECTION B. REGULAR MEETINGS. The regular annual meeting of the board of directors shall be held immediately after the adjournment of each annual meeting of the shareholders. SECTION C. SPECIAL MEETINGS. Special meetings of the board of directors may be called at any time by the chairman of the board or by the board, by giving to each director an oral or written notice setting the time, place and purpose of holding such meetings. SECTION D. TIME AND PLACE OF MEETINGS. All meetings of the board of directors shall be held at the principal office of the corporation, or at such other place within or without the State of Indiana and at such time as may be designated from time to time by the board of directors. SECTION E. NOTICES. Any notice, of meetings or otherwise, which is given or is required to be given to any director may be in the form of oral notice. SECTION F. COMMITTEES. The board of directors is expressly authorized to create committees and appoint members of the board of directors to serve on them, as follows: (1) Temporary and standing committees, including an executive committee, and the respective chairmen thereof, may be appointed by the board of directors, from time to time. The board of directors may invest such committees with such powers and limit the authority of such committees as it may see fit, subject to conditions as it may prescribe. The executive committee shall consist of three or more members of the board. All other committees shall consist of one or more members of the board. All committees so appointed shall keep regular minutes of the transactions of their meetings, shall cause them to be recorded in books kept for that purpose in the office of the corporation, and shall report the same to the board of directors at its next meeting. Within its area of responsibility, each committee shall have and exercise all of the authority of the board of directors, except as limited by the board of directors or by law, and shall have the power to authorize the execution of an affixation of the seal of the corporation to all papers or documents which may require it. (2) Neither the designation of any of the foregoing committees or the delegation thereto of authority shall operate to relieve the board of directors, or any member thereof, of any responsibility imposed by law. SECTION G. LOANS TO DIRECTORS. Except as consistent with the Indiana Business Corporation Law, the corporation shall not lend money to or guarantee the obligation of any director of the corporation. ARTICLE FOUR OFFICERS SECTION A. ELECTION AND TERM OF OFFICE. The officers of the corporation shall be elected by the board of directors at the regular annual meeting of the board, unless the board shall otherwise determine, and shall consist of a president, one or more vice presidents (anyone or more of whom may be designated as a functionally described vice president), a corporate secretary, a treasurer and, if so elected by the board, may include one or more assistant secretaries and assistant treasurers. Each officer shall continue in office until his successor shall have been duly elected and qualified or until removed in the manner hereinafter provided. Vacancies occasioned by any cause in anyone or more of such offices may be filled for the unexpired portion of the term by the board of directors at any regular or special meeting of the board. SECTION B. THE PRESIDENT. The president and his duties shall, at all times, be subject to the control of the board of directors. Nevertheless, but subject to the foregoing limitations, the president shall be the chief executive officer of the corporation, and shall have general and active management of the business of the corporation and shall see that all orders and resolutions of the board of directors are carried into effect. The president shall have the power to sign and execute all deeds, mortgages, bonds, contracts and other instruments of the corporation as authorized by the board of directors, except in cases where the signing and execution thereof shall be expressly designated by the board of directors or by these bylaws to some other officer, official or agent of the corporation. The president shall perform all duties incident to the office of president and such other duties as are properly required of him by the bylaws. SECTION C. THE VICE PRESIDENTS. The vice presidents shall possess the same power as the president to sign all certificates, contracts and other instruments of the corporation which may be authorized by the board of directors, except where by law the signature of the president is required. All vice presidents shall perform such duties as may from time to time be assigned to them by the board of directors and the president. In the event of the absence or disability of the president, and at the request of the board of directors, the vice presidents in the order designated by the board of directors, shall perform all of the duties of the president, and when so acting they shall have all of the powers of and be subject to the restrictions upon the president and shall act as a member of, or as a chairman of, any standing or special committee of which the president is a member or chairman by designation or ex officio. SECTION D. THE CORPORATE SECRETARY. The corporate secretary of the corporation shall: (1) Keep the minutes of the meetings of the shareholders and the board of directors in books provided for that purpose. (2) See that all notices are duly given in accordance with the provisions of these bylaws and as required by law. (3) Be custodian of the records and of the seal of the corporation, if adopted, and see that the seal is affixed to all documents, the execution of which on behalf of the corporation under its seal is duly authorized in accordance with the provisions of these bylaws. (4) Keep a register of the post office address of each shareholder, which shall be furnished to the corporate secretary at his request by such shareholder, and make all proper changes in such register, retaining and filing his authority for all such entries. (5) See that the books, reports, statements, certificates and all other documents and records required by law are properly kept, filed and authenticated. (6) In general, perform all duties incident to the office of corporate secretary and such other duties as may from time to time be assigned to him by the board of directors. (7) In case of absence or disability of the corporate secretary, the assistant secretaries, in the order designated by the chief executive officer, shall perform the duties of corporate secretary. SECTION E. THE TREASURER. The treasurer of the corporation shall: (1) Give bond for the faithful discharge of his duties if required by the board of directors. (2) Have the charge and custody of, and be responsible for, all funds and securities of the corporation, and deposit all such funds in the name of the corporation in such banks, trust companies or other depositories as shall be selected in accordance with the provisions of these bylaws. (3) At all reasonable times, exhibit his books of account and records, and cause to be exhibited the books of account and records of any corporation a majority of whose stock is owned by the corporation, to any of the directors of the corporation upon application during business hours at the office of this corporation or such other corporation where such books and records are kept. (4) Render a statement of the conditions of the finances of the corporation at all regular meetings of the board of directors, and a full financial report at the annual meeting of the shareholders, if called upon so to do. (5) Receive and give receipts for monies due and payable to the corporation from any source whatsoever. (6) In general, perform all of the duties incident to the office of treasurer and such other duties as may from time to time be assigned to him by the board of directors. (7) In case of absence or disability of the treasurer, the assistant treasurers, in the order designated by the chief executive officer, shall perform the duties of treasurer. ARTICLE FIVE CORPORATE SEAL The board of directors may adopt a corporate seal of the corporation in such form as the board of directors shall prescribe. ARTICLE SIX AMENDMENT These bylaws may be altered, added to, amended or repealed by the board of directors of the corporation at any regular or special meeting thereof. EX-3.26 25 file024.txt CERTIFICATE OF INCORPORATION OF QUOIN CORPORATION. CERTIFICATE OF INCORPORATION OF QUOIN CORPORATION 1. The name of the corporation is QUOIN CORPORATION (the "Corporation"). 2. The address of the Corporation's registered office in the state of Delaware is The Corporation Trust Company, 1209 Orange Street, Wilmington, Delaware 19801. 3. The nature of the business or purpose to be conducted or promoted by the Corporation is to engage in any lawful act or activity for which corporations may be organized under the general corporation law of the state of Delaware. 4. (a) The aggregate number of shares of capital stock which the Corporation shall have the authority to issue is one thousand (1,000) shares of common stock, with par value of One Dollar ($1.00) per share. 4. (b) Except as otherwise provided by the laws of the state of Delaware, the holders of the common stock shall have and possess all rights appertaining to capital stock of the corporation. No holder of shares of common stock shall be entitled as a matter of right to subscribe for or purchase any part of any new or additional issue of stock of any class whatsoever of the corporation, or securities convertible into stock of any class whatsoever, whether now or hereafter authorized or whether issued for cash or other consideration or by way of dividends. 5. The name and address of the incorporator of the Corporation is:
Name Address ---- ------- Angela K. Knowlton 345 South High Street, Suite 200 P.O. Box 5004 Muncie, Indiana 47307-5004
6. The initial directors of the Corporation, who shall serve until their successors are duly elected and qualified, shall be:
Name Address ---- ------- Monte L. Miller P.O. Box 50401 Henderson, Nevada 89016 Name Address ---- ------- Angela K. Knowlton 345 South High Street Suite 200 Muncie, IN 47305
7. The Corporation is to have perpetual existence. 8. In furtherance and not in limitation of the powers conferred by statute, a majority of the Boards of Directors is expressly authorized to make, alter, or repeal the Bylaws of the Corporation. 9. Meetings of stockholders may be held within or without the state of Delaware as the Bylaws provide. The books of the Corporation may be kept (subject to any provision contained in the statutes of the state of Delaware) outside the state of Delaware at such place or places as may be designated from time to time by the Board of Directors or in the Bylaws of the Corporation. Elections of directors need not be written ballot unless the Bylaws of the Corporation shall so provide. 10. No director shall be personally liable to the Corporation or its stockholders for monetary damages for any breach of fiduciary duty by such director as a director, provided that this provision shall not eliminate or limit the liability of a director to the extent provided by applicable law (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of the law, (iii) pursuant to Section 174 of the Delaware General Corporation Law, or (iv) for any transaction from which the director derived an improper personal benefit. 11. The Corporation shall indemnify any and all of its directors or officers, including former directors and officers and any employee who shall serve as an officer or director of this Corporation or of any other corporation at the request of this Corporation, to the fullest extent permitted in accordance with the laws of the state of Delaware. 12. The Corporation reserves the right to amend, alter, change or repeal any provision contained in this certificate of incorporation in any manner now or hereafter prescribed by statute and all rights conferred upon stockholders herein are subject to this reservation. 2 THE UNDERSIGNED, being the sole incorporator herein before named, for the purpose of forming a corporation pursuant to the General Corporation Laws in the state of Delaware, does not now make this certificate, hereby declaring and certifying that this is her act and deed and the facts herein stated are true and accordingly has hereunto set her hand this 20th day of December, 1996. /s/ Angela K. Knowlton ---------------------- 3 EX-3.27 26 file025.txt CERTIFICATE OF CORRECTION CERTIFICATE OF CORRECTION TO THE CERTIFICATE OF INCORPORATION OF QUOIN CORPORATION Quoin Corporation (the "Corporation"), a corporation organized and existing under and by virtue of the General Corporation Law of the State of Delaware, DOES HEREBY CERTIFY as follows: 1. The name of the Corporation is Quoin Corporation. 2. The Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on December 23, 1996, and said Certificate of Incorporation requires correction as permitted by subsection (f) of Section 103 of the General Corporation Law of the State of Delaware. 3. The inaccuracy or defect of said Certificate of Incorporation to be corrected is that the address of the registered office in Section 2 inadvertently omits the county in which the registered office is located. 4. Section 2 of the Certificate of Incorporation is corrected to read in its entirety as follows: "The registered office and registered agent of the Corporation is Corporation Trust Company, 1209 Orange Street, Wilmington, DE, County of New Castle, 19801." IN WITNESS WHEREOF, Ian G.H. Ashken, the Treasurer of the Corporation has caused this Certificate of Correction to be executed as of the 22nd day of April, 2002. QUOIN CORPORATION By: /s/ Ian G.H. Ashken ------------------- Title: Treasurer EX-3.28 27 file026.txt BYLAWS OF QUOIN CORPORATION. BYLAWS OF QUOIN CORPORATION ARTICLE I Offices Quoin Corporation (the "Corporation") may establish or discontinue, from time to time, such offices and places of business within or without the state of Delaware as the Board of Directors may deem proper for the conduct of the Corporation's business. ARTICLE II Books The books and records of the Corporation may be kept (except as otherwise provided by the laws of the State of Delaware) outside of the State of Delaware and at such place or places as may from time to time be designated by the Board of Directors. ARTICLE III Stockholders Section 1. Annual Meetings. The annual meeting of the stockholders of the Corporation for the election of Directors and the transaction of such other business as may properly come before that meeting shall be held at the principal business office of the Corporation, or at such other place either within or without the State of Delaware as may be specified by the Board of Directors, and on such date as may be designated by the Board of Directors, or as soon after such day as may be practicable and stated in the notice of the meeting, or waiver of notice thereof. Written notice of the place designated for the annual meeting of the stockholders of the Corporation shall be delivered personally or mailed to each stockholder entitled to vote thereat not less than 10 and not more than 60 days prior to the meeting, but at any meeting at which all stockholders shall be present, or of which all stockholders not present have waived notice in writing, the giving of notice as above described may be dispensed with. If mailed, the notice shall be directed to each stockholder at his or her address as the same appears on the stock ledger of the Corporation unless he or she shall have filed with the Secretary of the Corporation a written request that notices intended for him or her be mailed to some other address, in which case it shall be mailed to the address designated in the request. Section 2. Special Meetings. Special meetings of the stockholders of the Corporation shall be held whenever called in the manner required by the laws of the State of Delaware for purposes as to which there are special statutory provisions, and for other purposes whenever called by resolution of the Board of Directors, or by the President, or by the holders of a majority of the outstanding shares of capital stock of the Corporation the holders of which are entitled to vote on matters that are to be voted on at the meeting. Any special meeting of stockholders may be held at the principal business office of the Corporation or at such other place or places, either within or without the State of Delaware, as may be specified in the notice thereof or waiver of notice thereof. Business transacted at any special meeting of stockholders of the Corporation shall be limited to the purposes stated in the notice thereof. Except as otherwise expressly required by the laws of the State of Delaware, written notice of each special meeting, stating the day, hour and place, and in general terms the business to be transacted thereat, shall be delivered personally or mailed to each stockholder entitled to vote thereat not less than 10 and not more than 60 days before the meeting. If mailed, the notice shall be directed to each stockholder at his or her address as the same appears on the stock ledger of the Corporation unless he or she shall have filed with the Secretary of the Corporation a written request that notices intended for him or her be mailed to some other address, in which case it shall be mailed to the address designated in the request. At any special meeting at which all stockholders are present, or of which all stockholders not present have waived notice in writing, the giving of notice may be dispensed with. Section 3. List of Stockholders. The officer of the corporation who has charge of the stock ledger of the Corporation shall prepare and make, at least 10 days before every meeting of stockholders, a complete list of the stockholders entitled to vote at the meeting, arranged in alphabetical order and showing the address of each stockholder and the number of shares registered in the name of each stockholder. The list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting, either at a place within the city where the meeting is to be held, which place shall be specified in the notice of the meeting, or, if not so specified, at the place where the meeting is to be held. The list shall also be produced and kept at the time and place of the meeting during the whole time thereof, and may be inspected by any stockholder who is present. Section 4. Quorum. At any meeting of the stockholders of the corporation, except as otherwise expressly provided by the laws of the State of Delaware, the Certificate of Incorporation or these Bylaws, there must be present, either in person or by proxy, in order to constitute a quorum, stockholders owning a majority of the issued and outstanding shares of the capital stock of the Corporation entitled to vote at the meeting. At any meeting of stockholders at which a quorum is not present, the holders of, or proxies for, a majority of the stock which is represented at the meeting, shall have power to adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present or represented. At the adjourned meeting at which a quorum is present or represented, any business may be transacted which might have been transacted at the meeting as originally noticed. If the adjournment is for more than 30 days, or if after the adjournment a new record date is fixed for the adjourned meeting, a notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. Section 5. Organization. The President shall call to order meetings of the stockholders and shall act as chairman of the meetings. The Board of Directors or the stockholders may appoint any stockholder or any Director or officer of the Corporation to act as chairman of any meeting in the absence of the President. The Secretary of the Corporation shall act as secretary of all meetings of the stockholders, but in the absence of the Secretary the presiding officer may appoint any other person to act as secretary of any meeting. Section 6. Voting. Except as otherwise provided in the Certificate of Incorporation or these Bylaws, each stockholder of record of the Corporation shall, at every meeting of the stockholders of the Corporation, be entitled to 1 vote for each share of stock standing in his or her name on the books of the Corporation on any matter on which he or she is entitled to vote. The votes may be cast either in person or by proxy, appointed by an instrument in writing, subscribed by the stockholder or by his or her duly authorized attorney, and filed with the Secretary before being voted on, but no proxy shall be voted after 3 years from its date, unless the proxy provides for a longer period. If the Certificate of Incorporation is amended to provide for more or less than 1 vote for any share of capital stock of the Corporation on any matter, then any and every reference in these Bylaws to a majority or other proportion of capital stock shall refer to the majority or other proportion of the votes of the stock. The vote on all elections of Directors and on any other questions before the meeting need not be by ballot, except upon demand of any stockholder. When a quorum is present at any meeting of the stockholders of the Corporation, action on a matter is approved if the votes cast in favor of the action exceed the votes cast in opposition to the action, unless the question is one upon which, under any provision of the laws of the State of Delaware or of the Certificate of Incorporation, a different vote is required, in which case that provision shall govern and control the decision of the question. Section 7. Consent. Unless the Certificate of Incorporation is amended to provide otherwise, whenever the vote of the stockholders at a meeting thereof is required or permitted to be taken in connection with any corporate action by any provision of the laws of the State of Delaware or of the Certificate of Incorporation, that corporate action may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding capital stock of the Corporation having not less than the minimum number of votes that would be necessary to authorize or take the action at a meeting at which all shares entitled to vote thereon were present and voted. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented thereto in writing. ARTICLE IV Directors Section 1. Number, Election and Term of Office. The business and affairs of the Corporation shall be managed by the Board of Directors. The number of Directors which shall constitute the whole Board shall be 2, or the number as may be fixed from time to time by vote of the stockholders or of the Board of Directors, at any regular or special meeting, subject to the provisions of the Certificate of Incorporation. Directors need not be stockholders. Directors shall be elected at the annual meeting of the stockholders of the Corporation, except as provided in Section 2 of this Article, to serve until the next annual meeting of stockholders and until their respective successors are duly elected and have qualified. In addition to the powers by these Bylaws expressly conferred upon them, the Board may exercise all such powers of the corporation as are not required to be exercised or done by the stockholders by the laws of the State of Delaware, the Certificate of Incorporation, or these Bylaws. Section 2. Vacancies and Newly Created Directorships. Except as hereinafter provided, any vacancy in the office of a Director occurring for any reason other than the removal of a Director pursuant to Section 3 of this Article, and any newly created Directorship resulting from any increase in the authorized number of Directors, may be filled by a majority of the Directors then in office or by a sole remaining Director. If any vacancy in the office of a Director occurs as a result of the removal of a Director pursuant to Section 3 of this Article, or if vacancies occur contemporaneously in the offices of all of the Directors, the vacancy or vacancies shall be filled by the stockholders of the Corporation at a meeting of stockholders called for that purpose. Directors chosen or elected as aforesaid shall hold office until the next annual meeting of stockholders and until their respective successors are duly elected and have qualified. Section 3. Removals. At any meeting of stockholders of the Corporation called for the purpose, the holders of a majority of the shares of capital stock of the Corporation entitled to vote at the meeting may remove any or all of the Directors from office, with or without cause. Section 4. Regular Meetings. Regular meetings of the Board of Directors may be held without notice at such time and place, either within or without the State of Delaware, as shall from time to time be determined by resolution of the Board. Section 5. Special Meetings. Special meetings of the Board of Directors may be called by the President or any two Directors on notice given to each Director, and such meetings shall be held at the principal business office of the Corporation or at such other place or places, either within or without the State of Delaware, as shall be specified in the notices thereof. Section 6. Annual Meetings. The first meeting of each newly elected Board of Directors shall be held as soon as practicable after each annual election of Directors and on the same day, at the same place at which regular meetings of the Board of Directors are held, or at such other time and place as may be provided by resolution of the Board. The meeting may be held at any other time or place which shall be specified in a notice given, as hereinafter provided, for special meetings of the Board of Directors. Section 7. Notice. Notice of any meeting of the Board of Directors requiring notice shall be given to each Director by mailing the notice at least 48 hours, or by telegraphing the notice at least 12 hours, before the time fixed for the meeting. Attendance of a Director at a meeting shall constitute waiver of notice of the meeting, except when the Director attends the meeting for the express purpose of objecting, at the beginning of the meeting, to the transaction of any business because the meeting is not lawfully called or convened. Section 8. Quorum. At all meetings of the Board of Directors, the presence of a majority of the total number of directors shall constitute a quorum for the transaction of business. Except as may be otherwise specifically provided by the laws of the State of Delaware, the Certificate of Incorporation or these Bylaws, if a quorum is present, the affirmative vote of a majority of the Directors present at the time of the vote shall be the act of the Board of Directors. If a quorum is not be present at any meeting of the Board of Directors, the Directors present thereat may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present. Section 9. Consent. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting, if all members of the Board consent thereto in writing, and the writing or writings are filed with the minutes of proceedings of the Board. Section 10. Telephonic Meetings. Unless otherwise restricted by the Certificate of Incorporation or these Bylaws, members of the Board of Directors may participate in a meeting of the Board by means of conference telephone or similar communications equipment by means of which all persons participating can hear each other. Participation in a meeting pursuant to this Section 10 shall constitute presence in person at that meeting. Section 11. Compensation of Directors. Directors, as such, shall not receive any stated salary for their services, but, by resolution of the Board, a fixed sum and expenses of attendance, if any, may be allowed for attendance at each regular or special meeting of the Board; provided that nothing herein contained shall be construed to preclude any Director from serving the Corporation in any other capacity and receiving compensation therefor. Section 12. Resignations. Any Director of the Corporation may resign at any time by giving written notice to the Board of Directors or to the President or the Secretary of the Corporation. Any resignation shall take effect at the time specified therein, or, if the time is not specified, upon receipt thereof; and unless otherwise specified therein, acceptance of the resignation shall not be necessary to make it effective. ARTICLE V Officers Section 1. Number, Election and Term of Office. The officers of the Corporation shall be a President, a Secretary and a Treasurer, and such assistant officers as the Board of Directors or the President designates. The officers of the Corporation may also include one or more Vice Presidents as may be designated by the Board of Directors. The officers of the Corporation shall be elected annually by the Board of Directors at its meeting held immediately after the annual meeting of the stockholders, and shall hold their respective offices until their successors are duly elected and have qualified. Any number of offices may be held by the same person. Section 2. President. The President need not be a Director, and shall have general and active management of the business of the Corporation, and shall see that all orders and resolutions of the Board are carried into effect. The President shall ensure that the books, reports, statements, certificates and other records of the Corporation are kept, made or filed in accordance with the laws of the State of Delaware. The President shall attend all meetings of the Board of Directors and all meetings of the stockholders, and may cause to be called regular and special meetings of the stockholders and of the Board of Directors in accordance with these Bylaws. The President may sign, execute and deliver in the name of the Corporation all deeds, mortgages, bonds, contracts or other instruments authorized by the Board of Directors, except in cases where the signing, execution or delivery thereof shall be expressly delegated by the Board of Directors or by these Bylaws to some other officer or agent of the Corporation or where any of them shall be required by law otherwise to be signed, executed or delivered. The President may sign, with the Treasurer or an Assistant Treasurer, or the Secretary or an Assistant Secretary, certificates of stock of the Corporation. The President shall appoint and remove, employ and discharge, and fix the compensation of all servants, agents, employees and clerks of the Corporation other than the duly elected or appointed officers, subject to the approval of the Board of Directors. In addition to the powers and duties expressly conferred upon the President by these Bylaws and except as otherwise specifically provided by the laws of the State of Delaware, the President has such other powers and duties as shall from time to time be assigned by the Board of Directors. Section 3. Secretary. The Secretary may sign all certificates of stock of the Corporation. The Secretary shall record all the proceedings of the meetings of the Board of Directors and of the stockholders of the Corporation in books to be kept for that purpose. The Secretary shall have custody of the seal of the Corporation and may affix the same to any instrument requiring such seal when authorized by the Board of Directors, and when so affixed he may attest the same by his signature. The Secretary shall keep the transfer books, in which all transfers of the capital stock of the Corporation shall be registered, and the stock books, which shall contain the names and addresses of all holders of the capital stock of the Corporation and the number of shares held by each. The stock and transfer books shall be kept open daily during business hours to the inspection of every stockholder and for transfer of stock. The Secretary shall notify the Directors and stockholders of their respective meetings as required by law or by these Bylaws, and shall perform such other duties as may be required by law or by these Bylaws, or which may be assigned from time to time by the Board of Directors. An Assistant Secretary may, during the absence or disability of the Secretary, discharge all responsibilities imposed upon the Secretary of the Corporation, including, without limitation, attest the execution of all documents by the Corporation. Section 4. Treasurer. The Treasurer shall have charge of the funds and securities of the Corporation, and may sign all certificates representing shares of capital stock. The Treasurer shall keep full and accurate accounts of all receipts and disbursements of the Corporation in books belonging to the Corporation and shall deposit all monies and other valuable effects in the name and to the credit of the Corporation in such depositories the Board of Directors may designate. The Treasurer shall disburse the fluids of the Corporation as may be ordered by the Board, and shall render to the President or the Directors, whenever they may require it, an account of all transactions as Treasurer and an account of the business and financial position of the Corporation. An Assistant Treasurer may, during the absence or disability of the Treasurer, discharge all responsibilities imposed upon the Treasurer of the Corporation. Section 5. Vice Presidents. The Board of Directors may from time to time designate and elect a Vice President or Vice Presidents who shall have such powers and duties as the Board of Directors may from time to time prescribe. Section 6. Assistant Officers. The Board of Directors or the President may from time to time designate and elect assistant officers, including one or more Assistant Secretaries or Assistant Treasurers, who shall have such powers and duties as the officers whom they are elected to assist specify and delegate to them, and such other powers and duties as the Board of Directors or the President may from time to time prescribe. Section 7. Transfer of Duties. The Board of Directors in its absolute discretion may transfer the power and duties, in whole or in part, of any officer to any other officer, or persons, notwithstanding the provisions of these Bylaws, except as otherwise provided by the laws of the State of Delaware. Section 8. Vacancies. If the office of President, Secretary or Treasurer, or of any other officer or agent becomes vacant for any reason, the Board of Directors may choose a successor to hold office for the unexpired term. Section 9. Removals. At any meeting of the Board of Directors called for the purpose, any officer or agent of the Corporation may be removed from office, with or without cause, by the affirmative vote of a majority of the entire Board of Directors. Section 10. Compensation of Officers. The officers shall receive such salary or compensation as may be determined by the Board of Directors. Section 11. Resignations. Any officer or agent of the Corporation may resign at any time by giving written notice to the Board of Directors or to the President or the Secretary of the Corporation. Any such resignation shall take effect at the time specified therein or, if the time be not specified, upon receipt thereof; and unless otherwise specified therein, acceptance of such resignation shall not be necessary to make it effective. ARTICLE VI Contracts, Checks and Notes Section 1. Contracts. Unless the Board of Directors shall otherwise specifically direct, all contracts of the Corporation shall be executed in the name of the Corporation by the President of the Corporation or his or her designee. Section 2. Checks and Notes. All checks, drafts, bills of exchange and promissory notes and other negotiable instruments of the Corporation shall be signed by such officers or agents of the Corporation as may be designated by the Board of Directors. ARTICLE VII Stock Section 1. Certificates of Stock. The certificates for shares of the capital stock of the Corporation shall be in such form, not inconsistent with the Certificate of Incorporation, as shall be prepared or approved by the Board of Directors. Every holder of stock in the Corporation shall be entitled to have a certificate signed by, or in the name of the Corporation by, the President and by the Treasurer or an Assistant Treasurer or the Secretary or an Assistant Secretary certifying the number of shares owned and the date of issue; no certificate shall be valid unless so signed. All certificates shall be consecutively numbered and shall be entered in the books of the Corporation as they are issued. Where a certificate is countersigned (a) by a transfer agent other than the Corporation or its employee, or (b) by a registrar other than the Corporation or its employee, any other signature on the certificate may be facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate has ceased to serve in that capacity before the certificate is issued, it may be issued by the Corporation with the same effect as if the person still served as officer, transfer agent or registrar at the date of issue. All certificates surrendered to the Corporation shall be cancelled and, except in the case of lost or destroyed certificates, no new certificates shall be issued until the former certificates for the same number of shares of the same class of stock shall have been surrendered and cancelled. Section 2. Transfer of Stock. Upon surrender to the Corporation or its transfer agent of a certificate for shares duly endorsed or accompanied by proper evidence of succession, assignment or authority to transfer, it shall be the duty of the Corporation to issue a new certificate to the person entitled thereto, cancel the old certificate and record the transaction upon its books. ARTICLE VIII Registered Stockholders The Corporation shall be entitled to treat the holder of record of any share or shares of stock as the holder in fact thereof and, accordingly, shall not be bound to recognize any equitable or other claim to, or interest in, such share or shares on the part of any other person, whether or not it shall have express or other notice thereof, except as expressly provided by the laws of the State of Delaware. ARTICLE IX Lost Certificates Any person claiming that a certificate representing shares of stock is lost or destroyed shall make an affidavit or affirmation of the fact and advertise the same in whatever manner the Board of Directors may require, and the Board of Directors may, in its discretion, require the owner of the lost or destroyed certificate, or his legal representative, to give the Corporation a bond in a sum sufficient, in the opinion of the Board of Directors, to indemnify the corporation against any claim that may be made against it on account of the alleged loss of any such certificate. A new certificate of the same tenor and for the same number of shares as the one alleged to be lost or destroyed may be issued without requiring any bond when, in the judgment of the Directors, it is proper so to do. ARTICLE X Fixing of Record Date In order that the Corporation may determine the stockholders entitled to notice of or to vote at any meeting of stockholders or any adjournment thereof, or to express consent to corporate action in writing without a meeting, or to receive payment of any dividend or other distribution or allotment of any rights, or to exercise any rights in respect of any change, conversion or exchange of stock or for the purpose of any other lawful action, the Board of Directors may fix, in advance, a record date, which shall not be more than 60 nor less than 10 days before the date of such meeting, nor more than 60 days prior to any other action. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board of Directors may fix a new record date for the adjourned meeting. ARTICLE XI Dividends Subject to the relevant provisions of the Certificate of Incorporation, dividends upon the capital stock of the Corporation may be declared by the Board of Directors at any regular or special meeting, pursuant to law. Dividends may be paid in cash, in property, or in shares of the capital stock of the Corporation, subject to the provisions of the Certificate of Incorporation. Before payment of any dividend, there may be set aside out of any funds of the Corporation available for dividends such sums as the Directors from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the Corporation, or for such other purpose as the Directors shall think conducive to the interest of the Corporation, and the Directors may modify or abolish any such reserve in the manner in which it was created. ARTICLE XII Waiver of Notice Whenever any notice is required to be given by statute or under the provisions of the Certificate of Incorporation or these Bylaws, a waiver thereof in writing signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be equivalent thereto, unless otherwise provided by law. ARTICLE XIII Fiscal Year The fiscal year of the Corporation shall commence on January 1 and end on December 31 of each year. ARTICLE XIV Amendments Subject to the provisions of the Certificate of Incorporation, these Bylaws may be altered, amended or repealed or new Bylaws may be adopted by the stockholders or by the Board of Directors, at any regular meeting of the stockholders or of the Board of Directors or at any special meeting of the stockholders or of the Board of Directors if notice of the alteration, amendment or repeal of the Bylaws or of adoption of new Bylaws is contained in the notice of the special meeting. EX-3.29 28 file027.txt CERTIFICATE OF INCORPORATION OF TILIA, INC. CERTIFICATE OF INCORPORATION OF ALLTRISTA ACQUISITION I, INC. ARTICLE I The name of the corporation (the "Corporation") is: Alltrista Acquisition I, Inc. ARTICLE II The address of the registered office of the Corporation in the State of Delaware is 2711 Centerville Road Suite 400, City of Wilmington, County of New Cast1e, Delaware 19808. The name of the registered agent of the Corporation at such address is Corporation Service Company. ARTICLE III The nature of the business or purposes to be conducted or promoted by the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. ARTICLE IV The total number of shares of stock which the Corporation shall have authority to issue is 1,000 shares of Common Stock each of which shall have no par value. ARTICLE V The name and mailing address of the Incorporator is as follows: Kenneth O. Gordon, Jr. Willkie Farr & Gallagher 787 Seventh Avenue New York, New York 10019-6099 ARTICLE VI In furtherance and not in limitation of the powers conferred by statute, the by-laws of the Corporation may be made, altered, amended or repealed by the stockholders or by a majority of the entire board of directors of the Corporation (the "Board"). ARTICLE VII Elections of directors need not be by written ballot. ARTICLE VIII (a) The Corporation shall indemnify to the fullest extent permitted under and in accordance with the laws of the State of Delaware any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person's conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person's conduct was unlawful. (b) The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. (c) Expenses incurred in defending a civil or criminal action, suit or proceeding shall (in the case of any action, suit or proceeding against a director of the Corporation) or may (in the case of any action, suit or proceeding against an officer, trustee, employee or agent) be paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board upon receipt of an undertaking by or on behalf of the indemnified person to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized in this Article. (d) The indemnification and other rights set forth in this Article VIII shall not be exclusive of any provisions with respect thereto in the by-laws of the Corporation or any other contract or agreement between the Corporation and any officer, director, employee or agent of the Corporation. (e) Neither the amendment nor repeal of this Article VIII, nor the adoption of any provision of this Certificate of Incorporation inconsistent with Article VIII, shall eliminate or reduce the effect of this Article VIII in respect of any matter occurring before such amendment, repeal or adoption of an inconsistent provision or in respect of any cause of action, suit or claim relating to any such matter which would have given rise to a right of indemnification or right to receive expenses pursuant to this Article VIII if such provision had not been so amended or repealed or if a provision inconsistent therewith had not been so adopted. (f) No director shall be personally liable to the Corporation or any stockholder for monetary damages for breach of fiduciary duty as a director; provided, however, that the foregoing shall not eliminate or limit the liability of a director: (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) under Section 174 of the General Corporation Law of the State of Delaware; or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law of the State of Delaware is amended after March 20, 2002 to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of the State of Delaware, as so amended. THE UNDERSIGNED, being the Incorporator hereinbefore named, for the purpose of forming a Corporation pursuant to the General Corporation Law of the State of Delaware makes this Certificate, hereby declaring and certifying that this is his act and deed and the facts herein stated are true and, accordingly, has hereunto set his hand this 20th day of March, 2002. /s/ Kenneth G. Gordon. Jr. --------------------------- Kenneth G. Gordon, Jr. Sole Incorporator EX-3.30 29 file028.txt CERTIFICATE OF AMENDMENT STATE OF DELAWARE CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF ALLTRISTA ACQUISITION I, INC. Pursuant to Section 242 of the General Corporation Law THE UNDERSIGNED, being an Officer of Alltrista Acquisition I, Inc. (the "Corporation"), a corporation organized and existing under and by virtue of the Delaware General Corporation Law (the "DGCL"), for the purpose of amending the Corporation's Certificate of Incorporation (the "Certificate of Incorporation") filed pursuant to Section 102 of the DGCL, hereby certify, pursuant to Sections 228 and 242 of the DGCL, as follows: FIRST: The name of the Corporation is Alltrista Acquisition I, Inc. SECOND: That the Certificate of Incorporation is hereby amended by striking the Article thereof numbered "I" in its entirety and inserting in lieu thereof the following "The name of the corporation (the "Corporation") is: Tilia, Inc." THIRD: That the amendment of the Certificate of Incorporation herein certified has been duly adopted and written consent has been given in accordance with the provisions of Sections 228 and 242 of the DGCL. [The signature page follows] IN WITNESS WHEREOF, the undersigned has made and signed this Certificate of Amendment this 24th day of April, 2002. /s/ Ian Ashken -------------- Name: Ian G.H. Ashken Title: Secretary EX-3.31 30 file029.txt BYLAWS OF TILIA, INC. ALLTRISTA ACQUISITION I, INC. INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE BY-LAWS ARTICLE I. OFFICES. The registered office of ALLTRISTA ACQUISITION I, INC. (the "Corporation") shall be located in the State of Delaware and shall be at such address as shall be set forth in the Certificate of Incorporation. The registered agent of the Corporation at such address shall be as set forth in the Certificate of Incorporation. The Corporation may also have such other offices at such other places, within or without the State of Delaware, as the Board of Directors may from time to time designate or the business of the Corporation may require. ARTICLE II. STOCKHOLDERS. Section 2.01. Annual Meeting. The annual meeting of stockholders for the election of directors and the transaction of any other business shall be held on such date and at such time and in such place, within or without the State of Delaware, as shall from time to time be designated by the Board of Directors. At the annual meeting any business may be transacted and any corporate action may be taken, whether stated in the notice of meeting or not, except as otherwise expressly provided by statute or the Certificate of Incorporation. Section 2.02. Special Meetings. Special meetings of the stockholders for any purpose may be called at any time by the Board of Directors, or by the President, and shall be called by the President at the request of the holders of at least 20% of the outstanding shares of capital stock entitled to vote. Special meetings shall be held within or without the State of Delaware shall from time to time be designated by the Board of Directors. At a special meeting no business shall be transacted and no corporate action shall be taken other than that stated in the notice of the meeting. Section 2.03. Notice of Meetings. Written notice of the time and place of any stockholder's meeting, whether annual or special, shall be given to each stockholder entitled to vote thereat, by personal delivery or by mailing the same to him at his address as the same appears upon the records of the Corporation at least ten (10) days but not more than sixty (60) days before the day of the meeting. Notice of any adjourned meeting need not be given except by announcement at the meeting so adjourned, unless otherwise ordered in connection with such adjournment. Such, further notice, if any, shall be given as may be required by law. Section 2.04. Quorum. Any number of stockholders, together holding at least a majority of the capital stock of the Corporation issued and outstanding and entitled to vote, who shall be present in person or represented by proxy at any meeting duly called, shall constitute a quorum for the transaction of all business, except as otherwise provided by law, by the Certificate of Incorporation or by these By-laws. Section 2.05. Adjournment of Meetings. If less than a quorum shall attend at the time for which a meeting shall have been called, the meeting may adjourn from time to time by a majority vote of the stockholders present or represented by proxy and entitled to vote without notice other than by announcement at the meeting until a quorum shall attend. Any meeting at which a quorum is present may also be adjourned in like manner and for such time or upon such call as may be determined by a majority vote of the stockholders present or represented by proxy and entitled to vote. At any adjourned meeting at which a quorum shall be present, any business may be transacted and any corporate action may be taken which might have been transacted at the meeting as originally called. Section 2.06. Voting List. The Secretary shall prepare and make, at least ten (10) days before every election of directors, a complete list of the stockholders entitled to vote, arranged in alphabetical order and showing the address of each stockholder and the number of shares of each stockholder. Such list shall be open at the place where the election is to be held for said ten (10) days, to the examination of any stockholder, and shall be produced and kept at the time and place of election during the whole time thereof, and subject to the inspection of any stockholder who may be present. Section 2.07. Voting. Each stockholder entitled to vote at any meeting may vote either in person or by proxy, but no proxy shall be voted on or after three years from its date, unless said proxy provides for a longer period. Except as otherwise provided by the Certificate of Incorporation, each stockholder entitled to vote shall at every meeting of the stockholders be entitled to one vote for each share of stock registered in his name on the record of stockholders. At all meetings of stockholders all matters, except as otherwise provided by statute, shall be determined by the affirmative vote of the majority of shares present in person or by proxy and entitled to vote on the subject matter. Voting at meetings of stockholders need not be by written ballot. Section 2.08. Record Date of Stockholders. The Board of Directors is authorized to fix in advance a date not exceeding sixty (60) days nor less than ten (10) days preceding the date of any meeting of stockholders, or the date for the payment of any dividend, or the date for the allotment of rights, or the date when any change or conversion or exchange of capital stock shall go into effect, or a date in connection with obtaining the consent of stockholders for any purposes, as a record date for the determination of the stockholders entitled to notice of, and to vote at, any such meeting, and any adjournment thereof, or entitled to receive payment of any such dividend, or to any such allotment of rights, or to exercise the rights in respect of any such change, conversion or exchange of capital stock, or to give such consent, and, in such case, such stockholders and only such stockholders as shall be stockholders of record on the date so fixed shall be entitled to such notice of, and to vote at, such meeting, and any adjournment thereof, or to receive payment of such dividend, or to receive such allotment of rights, or to exercise such 2 rights, or to give such consent, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation, after such record date fixed as aforesaid. Section 2.09. Action Without Meeting. Any action required or permitted to be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Section 2.10. Conduct of Meetings. The Chairman of the Board of Directors, or if there be none, or in the Chairman's absence, the President shall preside at all regular or special meetings of stockholders. To the maximum extent permitted by law, such presiding person shall have the power to set procedural rules, including but not limited to rules respecting the time allotted to stockholders to speak, governing all aspects of the conduct of such meetings. ARTICLE III. DIRECTORS. Section 3.01. Number and Qualifications: The board of directors shall consist initially of such number of directors as is set forth in the Statement of the Sole Incorporator, and thereafter shall consist of such number as may be fixed from time to time by resolution of the Board. The directors need not be stockholders. Section 3.02. Election of Directors: The directors shall be elected by the stockholders at the annual meeting of stockholders. Section 3.03. Duration of Office: The directors chosen at any annual meeting shall, except as hereinafter provided, hold office until the next annual election and until their successors are elected and qualify. Section 3.04. Removal and Resignation of Directors: Except as set forth in the Certificate of Incorporation of the Corporation, as such certificate may be amended by any Certificates of Designation filed by the Corporation, any director may be removed from the Board of Directors, with or without cause, by the holders of a majority of the shares of capital stock entitled to vote, either by written consent or consents or at any special meeting of the stockholders called for that purpose, and the office of such director shall forthwith become vacant. 3 Any director may resign at any time. Such resignation shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by the President or Secretary. The acceptance of a resignation shall not be necessary to make it effective, unless so specified therein. Section 3.05. Filling of Vacancies: Any vacancy among the directors, occurring from any cause whatsoever, may be filled by a majority of the remaining directors, though less than a quorum, provided, however, that the stockholders removing any director may at the same meeting fill the vacancy caused by such removal, and provided further, that if the directors fail to fill any such vacancy, the stockholders may at any special meeting called for that purpose fill such vacancy. In case of any increase in the number of directors, the additional directors may be elected by the directors in office before such increase. Any person elected to fill a vacancy shall hold office, subject to the right of removal as hereinbefore provided, until the next annual election and until his successor is elected and qualifies. Section 3.06. Regular Meetings: The Board of Directors shall hold an annual meeting for the purpose of organization and the transaction of any business immediately after the annual meeting of the stockholders, provided a quorum of directors is present. Other regular meetings may be held at such times as may be determined from time to time by resolution of the Board of Directors. Section 3.07. Special Meetings: Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors, if any, or by the President or by any two directors. Section 3.08. Notice and Place of Meetings: Meetings of the Board of Directors held shall be held within or without the State of Delaware. Notice of any special meeting, and, except as the Board of Directors may otherwise determine by resolution, notice of any regular meeting also, shall be mailed to each director addressed to him at his residence or usual place of business at least two (2) days before the day on which the meeting is to be held, or if sent to him at such place by facsimile, telegraph or cable, or delivered personally or by telephone, not later than the day before the day on which the meeting is to be held. No notice of the annual meeting of the Board of Directors shall be required if it is held immediately after the annual meeting of the stockholders and if a quorum is present. Section 3.09. Business Transacted at Meetings, etc.: Any business may be transacted and any corporate action may be taken at any regular or special meeting of the Board of Directors at which a quorum shall be present, whether such business or proposed action be stated in the notice of such meeting or not, unless special notice of such business or proposed action shall be required by statute. Section 3.10. Quorum: A majority of the Board of Directors at any time in office shall constitute a quorum. At any meeting at which a quorum is present, the vote of a majority of the members present shall be the act of the Board of Directors unless the act of a greater number is specifically 4 required by law or by the Certificate of Incorporation or these By-laws. The members of the Board shall act only as the Board and the individual members thereof shall not have any powers as such. Section 3.11. Compensation: The directors shall not receive any stated salary for their services as directors, but by resolution of the Board of Directors a fixed fee and expenses of attendance may be allowed for attendance at each meeting. Nothing herein contained shall preclude any director from serving the Corporation in any other capacity, as an officer, agent or otherwise, and receiving compensation therefor. Section 3.12. Action Without a Meeting: Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of the proceedings of the Board or committee. Section 3.13. Meetings Through Use of Communications Equipment: Members of the Board of Directors, or any committee designated by the Board of Directors, shall, except as otherwise provided by law, the Certificate of Incorporation or these By-laws, have the power to participate in a meeting of the Board of Directors, or any committee, by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person at the meeting. ARTICLE IV. COMMITTEES. Section 4.01. Executive Committee: The Board of Directors may, by resolution passed by a majority of the whole Board, designate two or more of their number to constitute an Executive Committee to hold office at the pleasure of the Board, which Committee shall, during the intervals between meetings of the Board of Directors, have and exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, subject only to such restrictions or limitations as the Board of Directors may from time to time specify, or as limited by the Delaware Corporation Law, and shall have power to authorize the seal of the Corporation to be affixed to all papers which may require it. Any member of the Executive Committee may be removed at any time, with or without cause, by a resolution of a majority of the whole Board of Directors. Any person ceasing to be a director shall ipso facto cease to be a member of the Executive Committee. Any vacancy in the Executive Committee occurring from any cause whatsoever may be filled from among the directors by a resolution of a majority of the whole Board of Directors. Section 4.02. Other Committees: Other committees, whose members need not be directors, may be appointed by the Board of Directors or the Executive Committee, which committees 5 shall hold office for such time and have such powers and perform such duties as may from time to time be assigned to them by the Board of Directors or the Executive Committee. Any member of such a committee may be removed at any time, with or without cause, by the Board of Directors or the Executive Committee. Any vacancy in a committee occurring from any cause whatsoever may be filled by the Board of Directors or the Executive Committee. Section 4.03. Resignation: Any member of a committee may resign at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or, if no time be specified, at the time of its receipt by the President or Secretary. The acceptance of a resignation shall not be necessary to make it effective unless so specified therein. Section 4.04. Quorum: A majority of the members of a committee shall constitute a quorum. The act of a majority of the members of a committee present at any meeting at which a quorum is present shall be the act of such committee. The members of a committee shall act only as a committee, and the individual members thereof shall not have any powers as such. Section 4.05. Record of Proceedings, etc.: Each committee shall keep a record of its acts and proceedings, and shall report the same to the Board of Directors when and as required by the Board of Directors. Section 4.06. Organization, Meetings, Notices, etc.: A committee may hold its meetings at the principal office of the Corporation, or at any place which a majority of the committee may at any time agreed upon. Each committee may make such rules as it may deem expedient for the regulation and carrying on of its meetings and proceedings. Unless otherwise ordered by the Executive Committee, any notice of a meeting of such committee may be given by the Secretary of the Corporation or by the chairman of the committee and shall be sufficiently given if mailed to each member at his residence or usual place of business at least two (2) days before the day on which the meeting is to be held, or if sent to him at such place by facsimile, telegraph or cable, or delivered personally or by telephone not later than twenty-four (24) hours before the time at which the meeting is to be held. Section 4.07. Compensation: The members of any committee shall be entitled to such compensation as may be allowed them by resolution of the Board of Directors. ARTICLE V. OFFICERS. Section 5.01. Number: The officers of the Corporation shall be a President and a Secretary and such other officers as may be appointed in accordance with the provisions of this Article V. The Board of Directors in its discretion may also elect a Chairman of the Board of Directors. Section 5.02. Election, Term of Office and Qualifications: The officers, except as provided in Section 3 of this Article V, shall be chosen annually by the Board of Directors. Each such officer shall, except as herein otherwise provided, hold office until his successor shall have been chosen 6 and shall qualify. The Chairman of the Board of Directors, if any, and the President shall be directors of the Corporation, and should anyone of them cease to be a director, he shall ipso facto cease to be such officer. Except as otherwise provided by law, any number of offices may be held by the same person. Section 5.03. Other Officers: Other officers, including one or more vice-presidents, assistant secretaries, treasurer or assistant treasurers, may from time to time be appointed by the Board of Directors, which other officers shall have such powers and perform such duties as may be assigned to them by the Board of Directors or the officer or committee appointing them. Section 5.04. Removal of Officers: Any officer of the Corporation may be removed from office, with or without cause, by a vote of a majority of the Board of Directors. Section 5.05. Resignation: Any officer of the Corporation may resign at any time. Such resignation shall be in writing and shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by the President or Secretary. The acceptance of a resignation shall not be necessary in order to make it effective, unless so specified therein. Section 5.06. Filling of Vacancies: A vacancy in any office shall be filled by the Board of Directors or by the authority appointing the predecessor in such office. Section 5.07. Compensation: The compensation of the officers shall be fixed by the Board of Directors, or by any committee upon whom power in that regard may be conferred by the Board of Directors. Section 5.08. Chairman of the Board of Directors: The Chairman of the Board of Directors, if any, shall be a director and shall preside at all meetings of the stockholders and the Board of Directors, and shall have such power and perform such duties as may from time to time be assigned to him by the Board of Directors. Section 5.09. President: In the absence of the Chairman of the Board of Directors, or if there be none, the President shall preside at all meetings of the stockholders and the Board of Directors. He shall have power to call special meetings of the stockholders or of the Board of Directors or of the Executive Committee at any time. He shall be the chief executive officer of the Corporation, and shall have the general direction of the business, affairs and property of the Corporation, and of its several officers, and shall have and exercise all such powers and discharge such duties as usually pertain to the office of President. Section 5.10. Vice-Presidents: The vice-president, or vice-presidents if there is more than one, shall, subject to the direction of the Board of Directors, at the request of the President or in his absence, or in case of his inability to perform his duties from any cause, perform the duties of the President, and, when so acting, shall have all the powers of, and be subject to all restrictions upon, the President. The vice-presidents shall also perform such other duties as may be assigned to them by the Board of Directors, and the Board of Directors may determine the order of priority among them. 7 Section 5.11. Secretary: The Secretary shall perform such duties as are incident to the office of Secretary, or as may from time to time be assigned to him by the Board of Directors, or as are prescribed by these By-laws. Section 5.12. Treasurer: The Treasurer shall perform such duties and have powers as are usually incident to the office of Treasurer or which may be assigned to him by the Board of Directors. ARTICLE VI. CAPITAL STOCK. Section 6.01. Issue of Certificates of Stock: Certificates of capital stock shall be in such form as shall be approved by the Board of Directors. They shall be numbered in the order of their issue and shall be signed by the Chairman of the Board of Directors, the President or one of the vice-presidents, and the Secretary or an assistant secretary or the treasurer or an assistant treasurer, and the seal of the Corporation or a facsimile thereof shall be impressed or affixed or reproduced thereon, provided, however, that where such certificates are signed by a transfer agent or an assistant transfer agent or by a transfer clerk acting on behalf of the Corporation and a registrar, the signature of any such Chairman of the Board of Directors, President, vice-president, Secretary, assistant secretary, treasurer or assistant treasurer may be facsimile. In case any officer or officers who shall have signed, or whose facsimile signature or signatures shall have been used on any such certificate or certificates shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates, or whose facsimile signature or signatures shall have been used thereon have not ceased to be such officer or officers of the Corporation. Section 6.02. Registration and Transfer of Shares: The name of each person owning a share of the capital stock of the Corporation shall be entered on the books of the Corporation together with the number of shares held by him, the numbers of the certificates covering such shares and the dates of issue of such certificates. The shares of stock of the Corporation shall be transferable on the books of the Corporation by the holders thereof in person, or by their duly authorized attorneys or legal representatives, on surrender and cancellation of certificates for a like number of shares, accompanied by an assignment or power of transfer endorsed thereon or attached thereto, duly executed, and with such proof of the authenticity of the signature as the Corporation or its agents may reasonably require. A record shall be made of each transfer. The Board of Directors may make other and further rules and regulations concerning the transfer and registration of certificates for stock and may appoint a transfer agent or registrar or both and may require all certificates of stock to bear the signature of either or both. Section 6.03. Lost, Destroyed and Mutilated Certificates: The holder of any stock of the Corporation shall immediately notify the Corporation of any loss, theft, destruction or mutilation 8 of the certificates therefor. The Corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it alleged to have been lost, stolen or destroyed, and the Board of Directors may, in its discretion, require the owner of the lost, stolen or destroyed certificate, or his legal representatives, to give the Corporation a bond, in such sum not exceeding double the value of the stock and with such surety or sureties as they may require, to indemnify it against any claim that may be made against it by reason of the issue of such new certificate and against all other liability in the premises, or may remit such owner to such remedy or remedies as he may have under the laws of the State of Delaware. ARTICLE VII. DIVIDENDS, SURPLUS, ETC. Section 7.01. General Discretion of Directors: The Board of Directors shall have power to fix and vary the amount to be set aside or reserved as working capital of the Corporation, or as reserves, or for other proper purposes of the Corporation, and, subject to the requirements of the Certificate of Incorporation, to determine whether any, if any, part of the surplus or net profits of the Corporation shall be declared as dividends and paid to the stockholders, and to fix the date or dates for the payment of dividends. ARTICLE VIII. MISCELLANEOUS PROVISIONS. Section 8.01. Fiscal Year: The fiscal year of the Corporation shall commence on the first day of January and end on the last day of December. Section 8.02. Corporate Seal: The corporate seal shall be in such form as approved by the Board of Directors and may be altered at their pleasure. The corporate seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. Section 8.03. Notices: Except as otherwise expressly provided, any notice required by these By-laws to be given shall be sufficient if given by depositing the same in a post office or letter box in a sealed postpaid wrapper addressed to the person entitled thereto at his address, as the same appears upon the books of the Corporation, or by sending via facsimile, telegraphing or cabling the same to such person at such addresses; and such notice shall be deemed to be given at the time it is mailed, sent via facsimile, telegraphed or cabled. Section 8.04. Waiver of Notice: Any stockholder or director may at any time, by writing or by telegraph or by cable, waive any notice required to be given under these By-laws, and if any stockholder or director shall be present at any meeting his presence shall constitute a waiver of such notice. Section 8.05. Checks, Drafts, etc.: All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed 9 by such officer or officers, agent or agents of the Corporation, and in such manner, as shall from time to time be designated by resolution of the Board of Directors. Section 8.06. Deposits: All funds of the Corporation shall be deposited from time to time to the credit of the Corporation in such bank or banks, trust companies or other depositories as the Board of Directors may select, and, for the purpose of such deposit, checks, drafts, warrants and other orders for the payment of money which are payable to the order of the Corporation, may be endorsed for deposit, assigned and delivered by any officer of the Corporation, or by such agents of the Corporation as the Board of Directors or the President may authorize for that purpose. Section 8.07. Voting Stock of Other Corporations: Except as otherwise ordered by the Board of Directors or the Executive Committee, the President or the treasurer shall have full power and authority on behalf of the Corporation to attend and to act and to vote at any meeting of the stockholders of any corporation of which the Corporation is a stockholder and to execute a proxy to any other person to represent the Corporation at any such meeting, and at any such meeting the President or the treasurer or the holder of any such proxy, as the case may be, shall possess and may exercise any and all rights and powers incident to ownership of such stock and which, as owner thereof, the Corporation might have possessed and exercised if present. The Board of Directors or the Executive Committee may from time to time confer like powers upon any other person or persons. Section 8.08. Indemnification of Officers and Directors: The Corporation shall indemnify any and all of its directors or officers, including former directors or officers, and any employee, who shall serve as an officer or director of any corporation at the request of this Corporation, to the fullest extent permitted under and in accordance with the laws of the State of Delaware. ARTICLE IX. AMENDMENTS. The Board of Directors shall have the power to make, rescind, alter, amend and repeal these By-laws, provided, however, that the stockholders shall have power to rescind, alter, amend or repeal any by-laws made by the Board of Directors, and to enact by-laws which if so expressed shall not be rescinded, altered, amended or repealed by the Board of Directors. No change of the time or place for the annual meeting of the stockholders for the election of directors shall be made except in accordance with the laws of the State of Delaware. * * * * * 10 EX-3.32 31 file030.txt CERTIFICATE OF INCORPORATION OF TILIA DIRECT, INC. CERTIFICATE OF INCORPORATION OF ALLTRISTA ACQUISITION II, INC. ARTICLE I The name of the corporation (the "Corporation") is: Alltrista Acquisition II, Inc. ARTICLE II The address of the registered office of the Corporation in the State of Delaware is 2711 Centerville Road Suite 400, City of Wilmington, County of New Cast1e, Delaware 19808. The name of the registered agent of the Corporation at such address is Corporation Service Company. ARTICLE III The nature of the business or purposes to be conducted or promoted by the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. ARTICLE IV The total number of shares of stock which the Corporation shall have authority to issue is 1,000 shares of Common Stock, each of which shall have no par value. ARTICLE V The name and mailing address of the Incorporator is as follows: Kenneth O. Gordon, Jr. Willkie Farr & Gallagher 787 Seventh Avenue New York, New York 10019-6099 ARTICLE VI In furtherance and not in limitation of the powers conferred by statute, the by-laws of the Corporation may be made, altered, amended or repealed by the stockholders or by a majority of the entire board of directors of the Corporation (the "Board"). ARTICLE VII Elections of directors need not be by written ballot. ARTICLE VIII (a) The Corporation shall indemnify to the fullest extent permitted under and in accordance with the laws of the State of Delaware any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person's conduct was unlawfu1. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person's conduct was unlawful. (b) The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. (c) Expenses incurred in defending a civil or criminal action, suit or proceeding shall (in the case of any action, suit or proceeding against a director of the Corporation) or may (in the case of any action, suit or proceeding against an officer, trustee, employee or agent) be paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board upon receipt of an undertaking by or on behalf of the indemnified person to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized in this Article. (d) The indemnification and other rights set forth in this Article VIII shall not be exclusive of any provisions with respect thereto in the by-laws of the Corporation or any other contract or agreement between the Corporation and any officer, director, employee or agent of the Corporation. (e) Neither the amendment nor repeal of this Article VIII, nor the adoption of any provision of this Certificate of Incorporation inconsistent with Article VIII shall eliminate or reduce the effect of this Article VIII in respect of any matter occurring before such amendment, repeal or adoption of an inconsistent provision or in respect of any cause of action, suit or claim relating to any such matter which would have given rise to a right of indemnification or right to receive expenses pursuant to this Article VIII if such provision had not been so amended or repealed or if a provision inconsistent therewith had not been so adopted. (f) No director shall be personally liable to the Corporation or any stockholder for monetary damages for breach of fiduciary duty as a director; provided, however, that the foregoing shall not eliminate or limit the liability of a director: (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) under Section 174 of the General Corporation Law of the State of Delaware; or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law of the State of Delaware is amended after March 20, 2002 to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of the State of Delaware, as so amended. THE UNDERSIGNED, being the Incorporator hereinbefore named, for the purpose of forming a Corporation pursuant to the General Corporation Law of the State of Delaware makes this Certificate, hereby declaring and certifying that this is his act and deed and the facts herein stated are true and, accordingly, has hereunto set his hand this 20th day of March, 2002. /s/ Kenneth G. Gordon, Jr. Sole Incorporator --------------------------------------------- EX-3.33 32 file031.txt CERTIFICATE OF AMENDMENT STATE OF DELAWARE CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF ALLTRISTA ACQUISITION II, INC. Pursuant to Section 242 of the General Corporation Law THE UNDERSIGNED, being an Officer of Alltrista Acquisition II, Inc. (the "Corporation"), a corporation organized and existing under and by virtue of the Delaware General Corporation Law (the "DGCL"), for the purpose of amending the Corporation's Certificate of Incorporation (the "Certificate of Incorporation") filed pursuant to Section 102 of the DGCL, hereby certify, pursuant to Sections 228 and 242 of the DGCL, as follows: FIRST: The name of the Corporation is Alltrista Acquisition II, Inc. SECOND: That the Certificate of Incorporation is hereby amended by deleting the Article thereof numbered "I" in its entirety and inserting in lieu thereof the following "The name of the corporation (the "Corporation") is: Tilia Direct, Inc." THIRD: That the amendment of the Certificate of Incorporation herein certified has been duly adopted and written consent has been given in accordance with the provisions of Sections 228 and 242 of the DGCL. IN WITNESS WHEREOF, the undersigned has made and signed this Certificate of Amendment this 24th day of April, 2002. /s/ Ian Ashken -------------- Title: Secretary EX-3.34 33 file032.txt BYLAWS OF TILIA DIRECT, INC. ALLTRISTA ACQUISITION II, INC. INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE BY-LAWS ARTICLE I. OFFICES. The registered office of ALLTRISTA ACQUISITION II, INC. (the "Corporation") shall be located in the State of Delaware and shall be at such address as shall be set forth in the Certificate of Incorporation. The registered agent of the Corporation at such address shall be as set forth in the Certificate of Incorporation. The Corporation may also have such other offices at such other places, within or without the State of Delaware, as the Board of Directors may from time to time designate or the business of the Corporation may require. ARTICLE II. STOCKHOLDERS. Section 2.01. Annual Meeting. The annual meeting of stockholders for the election of directors and the transaction of any other business shall be held on such date and at such time and in such place, within the State of California, as shall from time to time be designated by the Board of Directors. At the annual meeting any business may be transacted and any corporate action may be taken, whether stated in the notice of meeting or not, except as otherwise expressly provided by statute or the Certificate of Incorporation. Section 2.02. Special Meetings. Special meetings of the stockholders for any purpose may be called at any time by the Board of Directors, or by the President, and shall be called by the President at the request of the holders of at least 20% of the outstanding shares of capital stock entitled to vote. Special meetings shall be held at such place or places within the State of California as shall from time to time be designated by the Board of Directors. At a special meeting no business shall be transacted and no corporate action shall be taken other than that stated in the notice of the meeting. Section 2.03. Notice of Meetings. Written notice of the time and place of any stockholder's meeting, whether annual or special, shall be given to each stockholder entitled to vote thereat, by personal delivery or by mailing the same to him at his address as the same appears upon the records of the Corporation at least ten (10) days but not more than sixty (60) days before the day of the meeting. Notice of any adjourned meeting need not be given except by announcement at the meeting so adjourned, unless otherwise ordered in connection with such adjournment. Such further notice, if any, shall be given as may be required by law. Section 2.04. Quorum. Any number of stockholders, together holding at least a majority of the capital stock of the Corporation issued and outstanding and entitled to vote, who shall be present in person or represented by proxy at any meeting duly called, shall constitute a quorum for the transaction of all business, except as otherwise provided by law, by the Certificate of Incorporation or by these By-laws. Section 2.05. Adjournment of Meetings. If less than a quorum shall attend at the time for which a meeting shall have been called, the meeting may adjourn from time to time by a majority vote of the stockholders present or represented by proxy and entitled to vote without notice other than by announcement at the meeting until a quorum shall attend. Any meeting at which a quorum is present may also be adjourned in like manner and for such time or upon such call as may be determined by a majority vote of the stockholders present or represented by proxy and entitled to vote. At any adjourned meeting at which a quorum shall be present, any business may be transacted and any corporate action may be taken which might have been transacted at the meeting as originally called. Section 2.06. Voting List. The Secretary shall prepare and make, at least ten (10) days before every election of directors, a complete list of the stockholders entitled to vote, arranged in alphabetical order and showing the address of each stockholder and the number of shares of each stockholder. Such list shall be open at the place where the election is to be held for said ten (10) days, to the examination of any stockholder, and shall be produced and kept at the time and place of election during the whole time thereof, and subject to the inspection of any stockholder who may be present. Section 2.07. Voting. Each stockholder entitled to vote at any meeting may vote either in person or by proxy, but no proxy shall be voted on or after three years from its date, unless said proxy provides for a longer period. Except as otherwise provided by the Certificate of Incorporation, each stockholder entitled to vote shall at every meeting of the stockholders be entitled to one vote for each share of stock registered in his name on the record of stockholders. At all meetings of stockholders all matters, except as otherwise provided by statute, shall be determined by the affirmative vote of the majority of shares present in person or by proxy and entitled to vote on the subject matter. Voting at meetings of stockholders need not be by written ballot. Section 2.08. Record Date of Stockholders. The Board of Directors is authorized to fix in advance a date not exceeding sixty (60) days nor less than ten (10) days preceding the date of any meeting of stockholders, or the date for the payment of any dividend, or the date for the allotment of rights, or the date when any change or conversion or exchange of capital stock shall go into effect, or a date in connection with obtaining the consent of stockholders for any purposes, as a record date for the determination of the stockholders entitled to notice of, and to vote at, any such meeting, and any adjournment thereof, or entitled to receive payment of any such dividend, or to any such allotment of rights, or to exercise the rights in respect of any such change, conversion or exchange of capital stock, or to give such consent, and, in such case, such stockholders and only such stockholders as shall be stockholders of record on the date so fixed shall be entitled to such notice of, and to vote at, such meeting, and any adjournment thereof, or 2 to receive payment of such dividend, or to receive such allotment of rights, or to exercise such rights, or to give such consent, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation, after such record date fixed as aforesaid. Section 2.09. Action Without Meeting. Any action required or permitted to be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Section 2.10. Conduct of Meetings. The Chairman of the Board of Directors, or if there be none, or in the Chairman's absence, the President shall preside at all regular or special meetings of stockholders. To the maximum extent permitted by law, such presiding person shall have the power to set procedural rules, including but not limited to rules respecting the time allotted to stockholders to speak, governing all aspects of the conduct of such meetings. ARTICLE III. DIRECTORS. Section 3.01. Number and Qualifications: The board of directors shall consist initially of such number of directors as is set forth in the Statement of the Sole Incorporator, and thereafter shall consist of such number as may be fixed from time to time by resolution of the Board. The directors need not be stockholders. Section 3.02. Election of Directors: The directors shall be elected by the stockholders at the annual meeting of stockholders. Section 3.03. Duration of Office: The directors chosen at any annual meeting shall, except as hereinafter provided, hold office until the next annual election and until their successors are elected and qualify. Section 3.04. Removal and Resignation of Directors: Except as set forth in the Certificate of Incorporation of the Corporation, as such certificate may be amended by any Certificates of Designation filed by the Corporation, any director may be removed from the Board of Directors, with or without cause, by the holders of a majority of the shares of capital stock entitled to vote, either by written consent or consents or at any special meeting of the stockholders called for that purpose, and the office of such director shall forthwith become vacant. 3 Any director may resign at any time. Such resignation shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by the President or Secretary. The acceptance of a resignation shall not be necessary to make it effective, unless so specified therein. Section 3.05. Filling of Vacancies: Any vacancy among the directors, occurring from any cause whatsoever, may be filled by a majority of the remaining directors, though less than a quorum, provided, however, that the stockholders removing any director may at the same meeting fill the vacancy caused by such removal, and provided further, that if the directors fail to fill any such vacancy, the stockholders may at any special meeting called for that purpose fill such vacancy. In case of any increase in the number of directors, the additional directors may be elected by the directors in office before such increase. Any person elected to fill a vacancy shall hold office, subject to the right of removal as hereinbefore provided, until the next annual election and until his successor is elected and qualifies. Section 3.06. Regular Meetings: The Board of Directors shall hold an annual meeting for the purpose of organization and the transaction of any business immediately after the annual meeting of the stockholders, provided a quorum of directors is present. Other regular meetings may be held at such times as may be determined from time to time by resolution of the Board of Directors. Section 3.07. Special Meetings: Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors, if any, or by the President or by any two directors. Section 3.08. Notice and Place of Meetings: Meetings of the Board of Directors may be held at the principal office of the Corporation, or at such other place as shall be stated in the notice of such meeting. Notice of any special meeting, and, except as the Board of Directors may otherwise determine by resolution, notice of any regular meeting also, shall be mailed to each director addressed to him at his residence or usual place of business at least two (2) days before the day on which the meeting is to be held, or if sent to him at such place by facsimile, telegraph or cable, or delivered personally or by telephone, not later than the day before the day on which the meeting is to be held. No notice of the annual meeting of the Board of Directors shall be required if it is held immediately after the annual meeting of the stockholders and if a quorum is present. Section 3.09. Business Transacted at Meetings, etc.: Any business may be transacted and any corporate action may be taken at any regular or special meeting of the Board of Directors at which a quorum shall be present, whether such business or proposed action be stated in the notice of such meeting or not, unless special notice of such business or proposed action shall be required by statute. Section 3.10. Quorum: A majority of the Board of Directors at any time in office shall constitute a quorum. At any meeting at which a quorum is present, the vote of a majority of the members present shall be the act of the Board of Directors unless the act of a greater number is specifically 4 required by law or by the Certificate of Incorporation or these By-laws. The members of the Board shall act only as the Board and the individual members thereof shall not have any powers as such. Section 3.11. Compensation: The directors shall not receive any stated salary for their services as directors, but by resolution of the Board of Directors a fixed fee and expenses of attendance may be allowed for attendance at each meeting. Nothing herein contained shall preclude any director from serving the Corporation in any other capacity, as an officer, agent or otherwise, and receiving compensation therefor. Section 3.12. Action Without a Meeting: Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of the proceedings of the Board or committee. Section 3.13. Meetings Through Use of Communications Equipment: Members of the Board of Directors, or any committee designated by the Board of Directors, shall, except as otherwise provided by law, the Certificate of Incorporation or these By-laws, have the power to participate in a meeting of the Board of Directors, or any committee, by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person at the meeting. ARTICLE IV. COMMITTEES. Section 4.01. Executive Committee: The Board of Directors may, by resolution passed by a majority of the whole Board, designate two or more of their number to constitute an Executive Committee to hold office at the pleasure of the Board, which Committee shall, during the intervals between meetings of the Board of Directors, have and exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, subject only to such restrictions or limitations as the Board of Directors may from time to time specify, or as limited by the Delaware Corporation Law, and shall have power to authorize the seal of the Corporation to be affixed to all papers which may require it. Any member of the Executive Committee may be removed at any time, with or without cause, by a resolution of a majority of the whole Board of Directors. Any person ceasing to be a director shall ipso facto cease to be a member of the Executive Committee. Any vacancy in the Executive Committee occurring from any cause whatsoever may be filled from among the directors by a resolution of a majority of the whole Board of Directors. Section 4.02. Other Committees: Other committees, whose members need not be directors, may be appointed by the Board of Directors or the Executive Committee, which committees 5 shall hold office for such time and have such powers and perform such duties as may from time to time be assigned to them by the Board of Directors or the Executive Committee. Any member of such a committee may be removed at any time, with or without cause, by the Board of Directors or the Executive Committee. Any vacancy in a committee occurring from any cause whatsoever may be filled by the Board of Directors or the Executive Committee. Section 4.03. Resignation: Any member of a committee may resign at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or, if no time be specified, at the time of its receipt by the President or Secretary. The acceptance of a resignation shall not be necessary to make it effective unless so specified therein. Section 4.04. Quorum: A majority of the members of a committee shall constitute a quorum. The act of a majority of the members of a committee present at any meeting at which a quorum is present shall be the act of such committee. The members of a committee shall act only as a committee, and the individual members thereof shall not have any powers as such. Section 4.05. Record of Proceedings. etc.: Each committee shall keep a record of its acts and proceedings, and shall report the same to the Board of Directors when and as required by the Board of Directors. Section 4.06. Organization, Meetings, Notices, etc.: A committee may hold its meetings at the principal office of the Corporation, or at any place within the State of California which a majority of the committee may at any time agreed upon. Each committee may make such rules as it may deem expedient for the regulation and carrying on of its meetings and proceedings except as to hold meetings outside the State of California. Unless otherwise ordered by the Executive Committee, any notice of a meeting of such committee may be given by the Secretary of the Corporation or by the chairman of the committee and shall be sufficiently given if mailed to each member at his residence or usual place of business at least two (2) days before the day on which the meeting is to be held, or if sent to him at such place by facsimile, telegraph or cable, or delivered personally or by telephone not later than twenty-four (24) hours before the time at which the meeting is to be held. Section 4.07. Compensation: The members of any committee shall be entitled to such compensation as may be allowed them by resolution of the Board of Directors. ARTICLE V. OFFICERS. Section 5.01. Number: The officers of the Corporation shall be a President and a Secretary and such other officers as may be appointed in accordance with the provisions of this Article V. The Board of Directors in its discretion may also elect a Chairman of the Board of Directors. Section 5.02. Election, Term of Office and Qualifications: The officers, except as provided in Section 3 of this Article V, shall be chosen annually by the Board of Directors. Each such officer 6 shall, except as herein otherwise provided, hold office until his successor shall have been chosen and shall qualify. The Chairman of the Board of Directors, if any, and the President shall be directors of the Corporation, and should anyone of them cease to be a director, he shall ipso facto cease to be such officer. Except as otherwise provided by law, any number of offices may be held by the same person. Section 5.03. Other Officers: Other officers, including one or more vice-presidents, assistant secretaries, treasurer or assistant treasurers, may from time to time be appointed by the Board of Directors, which other officers shall have such powers and perform such duties as may be assigned to them by the Board of Directors or the officer or committee appointing them. Section 5.04. Removal of Officers: Any officer of the Corporation may be removed from office, with or without cause, by a vote of a majority of the Board of Directors. Section 5.05. Resignation: Any officer of the Corporation may resign at any time. Such resignation shall be in writing and shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by the President or Secretary. The acceptance of a resignation shall not be necessary in order to make it effective, unless so specified therein. Section 5.06. Filling of Vacancies: A vacancy in any office shall be filled by the Board of Directors or by the authority appointing the predecessor in such office. Section 5.07. Compensation: The compensation of the officers shall be fixed by the Board of Directors, or by any committee upon whom power in that regard may be conferred by the Board of Directors. Section 5.08. Chairman of the Board of Directors: The Chairman of the Board of Directors, if any, shall be a director and shall preside at all meetings of the stockholders and the Board of Directors, and shall have such power and perform such duties as may from time to time be assigned to him by the Board of Directors. Section 5.09. President: In the absence of the Chairman of the Board of Directors, or if there be none, the President shall preside at all meetings of the stockholders and the Board of Directors. He shall have power to call special meetings of the stockholders or of the Board of Directors or of the Executive Committee at any time. He shall be the chief executive officer of the Corporation, and shall have the general direction of the business, affairs and property of the Corporation, and of its several officers, and shall have and exercise all such powers and discharge such duties as usually pertain to the office of President. Section 5.10. Vice-Presidents: The vice-president, or vice-presidents if there is more than one, shall, subject to the direction of the Board of Directors, at the request of the President or in his absence, or in case of his inability to perform his duties from any cause, perform the duties of the President, and, when so acting, shall have all the powers of, and be subject to all restrictions upon, the President. The vice-presidents shall also perform such other duties as may be assigned to them by the Board of Directors, and the Board of Directors may determine the order of priority among them. 7 Section 5.11. Secretary: The Secretary shall perform such duties as are incident to the office of Secretary, or as may from time to time be assigned to him by the Board of Directors, or as are prescribed by these By-laws. Section 5.12. Treasurer: The Treasurer shall perform such duties and have powers as are usually incident to the office of Treasurer or which may be assigned to him by the Board of Directors. ARTICLE VI. CAPITAL STOCK. Section 6.01. Issue of Certificates of Stock: Certificates of capital stock shall be in such form as shall be approved by the Board of Directors. They shall be numbered in the order of their issue and shall be signed by the Chairman of the Board of Directors, the President or one of the vice-presidents, and the Secretary or an assistant secretary or the treasurer or an assistant treasurer, and the seal of the Corporation or a facsimile thereof shall be impressed or affixed or reproduced thereon, provided, however, that where such certificates are signed by a transfer agent or an assistant transfer agent or by a transfer clerk acting on behalf of the Corporation and a registrar, the signature of any such Chairman of the Board of Directors, President, vice-president, Secretary, assistant secretary, treasurer or assistant treasurer may be facsimile. In case any officer or officers who shall have signed, or whose facsimile signature or signatures shall have been used on any such certificate or certificates shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates, or whose facsimile signature or signatures shall have been used thereon have not ceased to be such officer or officers of the Corporation. Section 6.02. Registration and Transfer of Shares: The name of each person owning a share of the capital stock of the Corporation shall be entered on the books of the Corporation together with the number of shares held by him, the numbers of the certificates covering such shares and the dates of issue of such certificates. The shares of stock of the Corporation shall be transferable on the books of the Corporation by the holders thereof in person, or by their duly authorized attorneys or legal representatives, on surrender and cancellation of certificates for a like number of shares, accompanied by an assignment or power of transfer endorsed thereon or attached thereto, duly executed, and with such proof of the authenticity of the signature as the Corporation or its agents may reasonably require. A record shall be made of each transfer. The Board of Directors may make other and further rules and regulations concerning the transfer and registration of certificates for stock and may appoint a transfer agent or registrar or both and may require all certificates of stock to bear the signature of either or both. Section 6.03. Lost, Destroyed and Mutilated Certificates: The holder of any stock of the Corporation shall immediately notify the Corporation of any loss, theft, destruction or mutilation 8 of the certificates therefor. The Corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it alleged to have been lost, stolen or destroyed, and the Board of Directors may, in its discretion, require the owner of the lost, stolen or destroyed certificate, or his legal representatives, to give the Corporation a bond, in such sum not exceeding double the value of the stock and with such surety or sureties as they may require, to indemnify it against any claim that may be made against it by reason of the issue of such new certificate and against all other liability in the premises, or may remit such owner to such remedy or remedies as he may have under the laws of the State of Delaware. ARTICLE VII. DIVIDENDS, SURPLUS, ETC. Section 7.01. General Discretion of Directors: The Board of Directors shall have power to fix and vary the amount to be set aside or reserved as working capital of the Corporation, or as reserves, or for other proper purposes of the Corporation, and, subject to the requirements of the Certificate of Incorporation, to determine whether any, if any, part of the surplus or net profits of the Corporation shall be declared as dividends and paid to the stockholders, and to fix the date or dates for the payment of dividends. ARTICLE VIII. MISCELLANEOUS PROVISIONS. Section 8.01. Fiscal Year: The fiscal year of the Corporation shall commence on the first day of January and end on the last day of December. Section 8.02. Corporate Seal: The corporate seal shall be in such form as approved by the Board of Directors and may be altered at their pleasure. The corporate seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. Section 8.03. Notices: Except as otherwise expressly provided, any notice required by these By-laws to be given shall be sufficient if given by depositing the same in a post office or letter box in a sealed postpaid wrapper addressed to the person entitled thereto at his address, as the same appears upon the books of the Corporation, or by sending via facsimile, telegraphing or cabling the same to such person at such addresses; and such notice shall be deemed to be given at the time it is mailed, sent via facsimile, telegraphed or cabled. Section 8.04. Waiver of Notice: Any stockholder or director may at any time, by writing or by telegraph or by cable, waive any notice required to be given under these By-laws, and if any stockholder or director shall be present at any meeting his presence shall constitute a waiver of such notice. Section 8.05. Checks, Drafts, etc.: All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed 9 by such officer or officers, agent or agents of the Corporation, and in such manner, as shall from time to time be designated by resolution of the Board of Directors. Section 8.06. Deposits: All funds of the Corporation shall be deposited from time to time to the credit of the Corporation in such bank or banks, trust companies or other depositories as the Board of Directors may select, and, for the purpose of such deposit, checks, drafts, warrants and other orders for the payment of money which are payable to the order of the Corporation, may be endorsed for deposit, assigned and delivered by any officer of the Corporation, or by such agents of the Corporation as the Board of Directors or the President may authorize for that purpose. Section 8.07. Voting Stock of Other Corporations: Except as otherwise ordered by the Board of Directors or the Executive Committee, the President or the treasurer shall have full power and authority on behalf of the Corporation to attend and to act and to vote at any meeting of the stockholders of any corporation of which the Corporation is a stockholder and to execute a proxy to any other person to represent the Corporation at any such meeting, and at any such meeting the President or the treasurer or the holder of any such proxy, as the case may be, shall possess and may exercise any and all rights and powers incident to ownership of such stock and which, as owner thereof, the Corporation might have possessed and exercised if present. The Board of Directors or the Executive Committee may from time to time confer like powers upon any other person or persons. Section 8.08. Indemnification of Officers and Directors: The Corporation shall indemnify any and all of its directors or officers, including former directors or officers, and any employee, who shall serve as an officer or director of any corporation at the request of this Corporation, to the fullest extent permitted under and in accordance with the laws of the State of Delaware. ARTICLE IX. AMENDMENTS. The Board of Directors shall have the power to make, rescind, alter, amend and repeal these By-laws, provided, however, that the stockholders shall have power to rescind, alter, amend or repeal any by-laws made by the Board of Directors, and to enact by-laws which if so expressed shall not be rescinded, altered, amended or repealed by the Board of Directors. No change of the time or place for the annual meeting of the stockholders for the election of directors shall be made except in accordance with the laws of the State of Delaware. * * * * * 10 EX-3.35 34 file033.txt CERTIFICATE OF INCORPORATION CERTIFICATE OF INCORPORATION OF ALLTRISTA ACQUISTION III, INC. ARTICLE I The name of the corporation (the "Corporation") is: Alltrista Acquisition III, Inc. ARTICLE II The address of the registered office of the Corporation in the State of Delaware is 2711 Centerville Road Suite 400, City of Wilmington, County of New Castle, Delaware 19808. The name of the registered agent of the Corporation at such address is Corporation Service Company. ARTICLE III The nature of the business or purposes to be conducted or promoted by the Corporation is to engage in any lawful act or activity for which corporations may be organized under the General Corporation Law of the State of Delaware. ARTICLE IV The total number of shares of stock which the Corporation shall have authority to issue is 1,000 shares of Common Stock, each of which shall have no par value. ARTICLE V The name and mailing address of the Incorporator is as follows: Kenneth G. Gordon. Jr. Wil1kie Farr & Gallagher 787 Seventh Avenue New York, New York 10019-6099 ARTICLE VI In furtherance and not in limitation of the powers conferred by statute, the by-laws of the Corporation may be made, altered, amended or repealed by the stockholders or by a majority of the entire board of directors of the Corporation (the "Board"). ARTICLE VII Elections of directors need not be by written ballot. ARTICLE VIII (a) The Corporation shall indemnify to the fullest extent permitted under and in accordance with the laws of the State of Delaware any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the Corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee, or agent of another corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys' fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person's conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably bc1ieved to be in or not opposed to the best interests of the Corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person's conduct was unlawful. (b) The Corporation shall indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the Corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the Corporation, or is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the Corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the Corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine, upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper. (c) Expenses incurred in defending a civil or criminal action, suit or proceeding shall (in the case of any action, suit or proceeding against a director of the Corporation) or may (in the case of any action, suit or proceeding against an officer, trustee, employee or agent) be paid by the Corporation in advance of the final disposition of such action, suit or proceeding as authorized by the Board upon receipt of an undertaking by or on beha1f of the indemnified person to repay such amount if it shall ultimately be determined that he is not entitled to be indemnified by the Corporation as authorized in this Article. (d) The indemnification and other rights set forth in this Article VIII shall not be exclusive of any provisions with respect thereto in the by-laws of the Corporation or any other contract or agreement between the Corporation and any officer, director, employee or agent of the Corporation. (e) Neither the amendment nor repeal of this Article VIII, nor the adoption of any provision of this Certificate of Incorporation inconsistent with Article VIII, shall eliminate or reduce the effect of this Article VIII in respect of any matter occurring before such amendment, repeal or adoption of an inconsistent provision or in respect of any cause of action, suit or claim relating to any such matter which would have given rise to a right of indemnification or right to receive expenses pursuant to this Article VIII if such provision had not been so amended or repealed or if a provision inconsistent therewith had not been so adopted. (f) No director shall be personally liable to the Corporation or any stockholder for monetary damages for breach of fiduciary duty as a director; provided, however, that the foregoing shall not eliminate or limit the liability of a director: (i) for any breach of the director's duty of loyalty to the Corporation or its stockholders; (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law; (iii) under Section 174 of the General Corporation Law of the State of Delaware; or (iv) for any transaction from which the director derived an improper personal benefit. If the General Corporation Law of the State of Delaware is amended after March 20, 2002 to authorize corporate action further eliminating or limiting the personal liability of directors, then the liability of a director of the Corporation shall be eliminated or limited to the fullest extent permitted by the General Corporation Law of the State of Delaware, as so amended. THE UNDERSIGNED, being the Incorporator hereinbefore named, for the purpose of forming a Corporation pursuant to the General Corporation Law of the State of Delaware makes this Certificate, hereby declaring and certifying that this is his act and deed and the facts herein stated are true and, accordingly, has hereunto set his hand this 20th day of March, 2002. /s/ Kenneth G. Gordon Jr., Sole Incorporator -------------------------------------------- EX-3.36 35 file034.txt CERTIFICATE OF AMENDMENT STATE OF DELAWARE CERTIFICATE OF AMENDMENT OF CERTIFICATE OF INCORPORATION OF ALLTRISTA ACQUISITION III, INC. Pursuant to Section 242 of the General Corporation Law THE UNDERSIGNED, being an Officer of Alltrista Acquisition III, Inc. (the "Corporation"), a corporation organized and existing under and by virtue of the Delaware General Corporation Law (the "DGCL"), for the purpose of amending the Corporation's Certificate of Incorporation (the "Certificate of Incorporation") filed pursuant to Section 102 of the DGCL, hereby certify, pursuant to Sections 228 and 242 of the DGCL, as follows: FIRST: The name of the Corporation is Alltrista Acquisition III, Inc. SECOND: That the Certificate of Incorporation is hereby amended by deleting the Article thereof numbered "I" in its entirety and inserting in lieu thereof the following "The name of the corporation (the "Corporation") is: Tilia International, Inc." THIRD: That the amendment of the Certificate of Incorporation herein certified has been duly adopted and written consent has been given in accordance with the provisions of Sections 228 and 242 of the DGCL. IN WITNESS WHEREOF, the undersigned has made and signed this Certificate of Amendment this 24th day of April, 2002. /s/ Ian Ashken -------------- Title: Secretary EX-3.37 36 file035.txt BYLAWS OF TILIA INTERNATIONAL, INC. ALLTRISTA ACQUISITION III, INC. INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE BY-LAWS ARTICLE I. OFFICES. The registered office of ALLTRISTA ACQUISITION III, INC. (the "Corporation") shall be located in the State of Delaware and shall be at such address as shall be set forth in the Certificate of Incorporation. The registered agent of the Corporation at such address shall be as set forth in the Certificate of Incorporation. The Corporation may also have such other offices at such other places, within or without the State of Delaware, as the Board of Directors may from time to time designate or the business of the Corporation may require. ARTICLE II. STOCKHOLDERS. Section 2.01. Annual Meeting. The annual meeting of stockholders for the election of directors and the transaction of any other business shall be held on such date and at such time and in such place, either within or without the State of Delaware, as shall from time to time be designated by the Board of Directors. At the annual meeting any business may be transacted and any corporate action may be taken, whether stated in the notice of meeting or not, except as otherwise expressly provided by statute or the Certificate of Incorporation. Section 2.02. Special Meetings. Special meetings of the stockholders for any purpose may be called at any time by the Board of Directors, or by the President, and shall be called by the President at the request of the holders of at least 20% of the outstanding shares of capital stock entitled to vote. Special meetings shall be held at such place or places within or without the State of Delaware as shall from time to time be designated by the Board of Directors. At a special meeting no business shall be transacted and no corporate action shall be taken other than that stated in the notice of the meeting. Section 2.03. Notice of Meetings. Written notice of the time and place of any stockholder's meeting, whether annual or special, shall be given to each stockholder entitled to vote thereat, by personal delivery or by mailing the same to him at his address as the same appears upon the records of the Corporation at least ten (10) days but not more than sixty (60) days before the day of the meeting. Notice of any adjourned meeting need not be given except by announcement at the meeting so adjourned, unless otherwise ordered in connection with such adjournment. Such further notice, if any, shall be given as may be required by law. Section 2.04. Quorum. Any number of stockholders, together holding at least a majority of the capital stock of the Corporation issued and outstanding and entitled to vote, who shall be present in person or represented by proxy at any meeting duly called, shall constitute a quorum for the transaction of all business, except as otherwise provided by law, by the Certificate of Incorporation or by these By-laws. Section 2.05. Adjournment of Meetings. If less than a quorum shall attend at the time for which a meeting shall have been called, the meeting may adjourn from time to time by a majority vote of the stockholders present or represented by proxy and entitled to vote without notice other than by announcement at the meeting until a quorum shall attend. Any meeting at which a quorum is present may also be adjourned in like manner and for such time or upon such call as may be determined by a majority vote of the stockholders present or represented by proxy and entitled to vote. At any adjourned meeting at which a quorum shall be present, any business may be transacted and any corporate action may be taken which might have been transacted at the meeting as originally called. Section 2.06. Voting List. The Secretary shall prepare and make, at least ten (10) days before every election of directors, a complete list of the stockholders entitled to vote, arranged in alphabetical order and showing the address of each stockholder and the number of shares of each stockholder. Such list shall be open at the place where the election is to be held for said ten (10) days, to the examination of any stockholder, and shall be produced and kept at the time and place of election during the whole time thereof, and subject to the inspection of any stockholder who may be present. Section 2.07. Voting. Each stockholder entitled to vote at any meeting may vote either in person or by proxy, but no proxy shall be voted on or after three years from its date, unless said proxy provides for a longer period. Except as otherwise provided by the Certificate of Incorporation, each stockholder entitled to vote shall at every meeting of the stockholders be entitled to one vote for each share of stock registered in his name on the record of stockholders. At all meetings of stockholders all matters, except as otherwise provided by statute, shall be determined by the affirmative vote of the majority of shares present in person or by proxy and entitled to vote on the subject matter. Voting at meetings of stockholders need not be by written ballot. Section 2.08. Record Date of Stockholders. The Board of Directors is authorized to fix in advance a date not exceeding sixty (60) days nor less than ten (10) days preceding the date of any meeting of stockholders, or the date for the payment of any dividend, or the date for the allotment of rights, or the date when any change or conversion or exchange of capital stock shall go into effect, or a date in connection with obtaining the consent of stockholders for any purposes, as a record date for the determination of the stockholders entitled to notice of, and to vote at, any such meeting, and any adjournment thereof, or entitled to receive payment of any such dividend, or to any such allotment of rights, or to exercise the rights in respect of any such change, conversion or exchange of capital stock, or to give such consent, and, in such case, such 2 stockholders and only such stockholders as shall be stockholders of record on the date so fixed shall be entitled to such notice of, and to vote at, such meeting, and any adjournment thereof; or to receive payment of such dividend, or to receive such allotment of rights, or to exercise such rights, or to give such consent, as the case may be, notwithstanding any transfer of any stock on the books of the Corporation, after such record date fixed as aforesaid. Section 2.09. Action Without Meeting. Any action required or permitted to be taken at any annual or special meeting of stockholders may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation's registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt notice of the taking of the corporate action without a meeting by less than unanimous written consent shall be given to those stockholders who have not consented in writing. Section 2.10. Conduct of Meetings. The Chairman of the Board of Directors, or if there be none, or in the Chairman's absence, the President shall preside at all regular or special meetings of stockholders. To the maximum extent permitted by law, such presiding person shall have the power to set procedural rules, including but not limited to rules respecting the time allotted to stockholders to speak, governing all aspects of the conduct of such meetings. ARTICLE III. DIRECTORS. Section 3.01. Number and Qualifications: The board of directors shall consist initially of such number of directors as is set forth in the Statement of the Sole Incorporator, and thereafter shall consist of such number as may be fixed from time to time by resolution of the Board. The directors need not be stockholders. Section 3.02. Election of Directors: The directors shall be elected by the stockholders at the annual meeting of stockholders. Section 3.03. Duration of Office: The directors chosen at any annual meeting shall, except as hereinafter provided, hold office until the next annual election and until their successors are elected and qualify. Section 3.04. Removal and Resignation of Directors: Except as set forth in the Certificate of Incorporation of the Corporation, as such certificate may be amended by any Certificates of Designation filed by the Corporation, any director may be removed from the Board of Directors, with or without cause, by the holders of a majority of the shares of capital stock entitled to vote, 3 either by written consent or consents or at any special meeting of the stockholders called for that purpose, and the office of such director shall forthwith become vacant. Any director may resign at any time. Such resignation shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by the President or Secretary. The acceptance of a resignation shall not be necessary to make it effective, unless so specified therein. Section 3.05. Filling of Vacancies: Any vacancy among the directors, occurring from any cause whatsoever, may be filled by a majority of the remaining directors, though less than a quorum, provided, however, that the stockholders removing any director may at the same meeting fill the vacancy caused by such removal, and provided further, that if the directors fail to fill any such vacancy, the stockholders may at any special meeting called for that purpose fill such vacancy. In case of any increase in the number of directors, the additional directors may be elected by the directors in office before such increase. Any person elected to fill a vacancy shall hold office, subject to the right of removal as hereinbefore provided, until the next annual election and until his successor is elected and qualifies. Section 3.06. Regular Meetings: The Board of Directors shall hold an annual meeting for the purpose of organization and the transaction of any business immediately after the annual meeting of the stockholders, provided a quorum of directors is present. Other regular meetings may be held at such times as may be determined from time to time by resolution of the Board of Directors. Section 3.07. Special Meetings: Special meetings of the Board of Directors may be called by the Chairman of the Board of Directors, if any, or by the President or by any two directors. Section 3.08. Notice and Place of Meetings: Meetings of the Board of Directors may be held at the principal office of the Corporation, or at such other place as shall be stated in the notice of such meeting. Notice of any special meeting, and, except as the Board of Directors may otherwise determine by resolution, notice of any regular meeting also, shall be mailed to each director addressed to him at his residence or usual place of business at least two (2) days before the day on which the meeting is to be held, or if sent to him at such place by facsimile, telegraph or cable, or delivered personally or by telephone, not later than the day before the day on which the meeting is to be held. No notice of the annual meeting of the Board of Directors shall be required if it is held immediately after the annual meeting of the stockholders and if a quorum is present. Section 3.09. Business Transacted at Meetings, etc.: Any business may be transacted and any corporate action may be taken at any regular or special meeting of the Board of Directors at which a quorum shall be present, whether such business or proposed action be stated in the notice of such meeting or not, unless special notice of such business or proposed action shall be required by statute. 4 Section 3.10. Quorum: A majority of the Board of Directors at any time in office shall constitute a quorum. At any meeting at which a quorum is present, the vote of a majority of the members present shall be the act of the Board of Directors unless the act of a greater number is specifically required by law or by the Certificate of Incorporation or these By-laws. The members of the Board shall act only as the Board and the individual members thereof shall not have any powers as such. Section 3.11. Compensation: The directors shall not receive any stated salary for their services as directors, but by resolution of the Board of Directors a fixed fee and expenses of attendance may be allowed for attendance at each meeting. Nothing herein contained shall preclude any director from serving the Corporation in any other capacity, as an officer, agent or otherwise, and receiving compensation therefor. Section 3.12. Action Without a Meeting: Any action required or permitted to be taken at any meeting of the Board of Directors, or of any committee thereof, may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing, and the writing or writings are filed with the minutes of the proceedings of the Board or committee. Section 3.13. Meetings Through Use of Communications Equipment: Members of the Board of Directors, or any committee designated by the Board of Directors, shall, except as otherwise provided by law, the Certificate of Incorporation or these By-laws, have the power to participate in a meeting of the Board of Directors, or any committee, by means of a conference telephone or similar communications equipment by means of which all persons participating in the meeting can hear each other, and such participation shall constitute presence in person at the meeting. ARTICLE IV. COMMITTEES. Section 4.01. Executive Committee: The Board of Directors may, by resolution passed by a majority of the whole Board, designate two or more of their number to constitute an Executive Committee to hold office at the pleasure of the Board, which Committee shall, during the intervals between meetings of the Board of Directors, have and exercise all of the powers of the Board of Directors in the management of the business and affairs of the Corporation, subject only to such restrictions or limitations as the Board of Directors may from time to time specify, or as limited by the Delaware Corporation Law, and shall have power to authorize the seal of the Corporation to be affixed to all papers which may require it. Any member of the Executive Committee may be removed at any time, with or without cause, by a resolution of a majority of the whole Board of Directors. Any person ceasing to be a director shall ipso facto cease to be a member of the Executive Committee. Any vacancy in the Executive Committee occurring from any cause whatsoever may be filled from among the directors by a resolution of a majority of the whole Board of Directors. 5 Section 4.02. Other Committees: Other committees, whose members need not be directors, may be appointed by the Board of Directors or the Executive Committee, which committees shall hold office for such time and have such powers and perform such duties as may from time to time be assigned to them by the Board of Directors or the Executive Committee. Any member of such a committee may be removed at any time, with or without cause, by the Board of Directors or the Executive Committee. Any vacancy in a committee occurring from any cause whatsoever may be filled by the Board of Directors or the Executive Committee. Section 4.03. Resignation: Any member of a committee may resign at any time. Such resignation shall be made in writing and shall take effect at the time specified therein, or, if no time be specified, at the time of its receipt by the President or Secretary. The acceptance of a resignation shall not be necessary to make it effective unless so specified therein. Section 4.04. Quorum: A majority of the members of a committee shall constitute a quorum. The act of a majority of the members of a committee present at any meeting at which a quorum is present shall be the act of such committee. The members of a committee shall act only as a committee, and the individual members thereof shall not have any powers as such. Section 4.05. Record of Proceedings, etc.: Each committee shall keep a record of its acts and proceedings, and shall report the same to the Board of Directors when and as required by the Board of Directors. Section 4.06. Organization, Meetings, Notices, etc.: A committee may hold its meetings at the principal office of the Corporation, or at any other place which a majority of the committee may at any time agreed upon. Each committee may make such rules as it may deem expedient for the regulation and carrying on of its meetings and proceedings. Unless otherwise ordered by the Executive Committee, any notice of a meeting of such committee may be given by the Secretary of the Corporation or by the chairman of the committee and shall be sufficiently given if mailed to each member at his residence or usual place of business at least two (2) days before the day on which the meeting is to be held, or if sent to him at such place by facsimile, telegraph or cable, or delivered personally or by telephone not later than twenty-four (24) hours before the time at which the meeting is to be held. Section 4.07. Compensation: The members of any committee shall be entitled to such compensation as may be allowed them by resolution of the Board of Directors. ARTICLE V. OFFICERS. Section 5.01. Number: The officers of the Corporation shall be a President and a Secretary and such other officers as may be appointed in accordance with the provisions of this Article V. The Board of Directors in its discretion may also elect a Chairman of the Board of Directors. 6 Section 5.02. Election, Term of Office and Qualifications: The officers, except as provided in Section 3 of this Article V, shall be chosen annually by the Board of Directors. Each such officer shall, except as herein otherwise provided, hold office until his successor shall have been chosen and shall qualify. The Chairman of the Board of Directors, if any, and the President shall be directors of the Corporation, and should anyone of them cease to be a director, he shall ipso facto cease to be such officer. Except as otherwise provided by law, any number of offices may be held by the same person. Section 5.03. Other Officers: Other officers, including one or more vice-presidents, assistant secretaries, treasurer or assistant treasurers, may from time to time be appointed by the Board of Directors, which other officers shall have such powers and perform such duties as may be assigned to them by the Board of Directors or the officer or committee appointing them. Section 5.04. Removal of Officers: Any officer of the Corporation may be removed from office, with or without cause, by a vote of a majority of the Board of Directors. Section 5.05. Resignation: Any officer of the Corporation may resign at any time. Such resignation shall be in writing and shall take effect at the time specified therein, and if no time be specified, at the time of its receipt by the President or Secretary. The acceptance of a resignation shall not be necessary in order to make it effective, unless so specified therein. Section 5.06. Filling of Vacancies: A vacancy in any office shall be filled by the Board of Directors or by the authority appointing the predecessor in such office. Section 5.07. Compensation: The compensation of the officers shall be fixed by the Board of Directors, or by any committee upon whom power in that regard may be conferred by the Board of Directors. Section 5.08. Chairman of the Board of Directors: The Chairman of the Board of Directors, if any, shall be a director and shall preside at all meetings of the stockholders and the Board of Directors, and shall have such power and perform such duties as may from time to time be assigned to him by the Board of Directors. Section 5.09. President: In the absence of the Chairman of the Board of Directors, or if there be none, the President shall preside at all meetings of the stockholders and the Board of Directors. He shall have power to call special meetings of the stockholders or of the Board of Directors or of the Executive Committee at any time. He shall be the chief executive officer of the Corporation, and shall have the general direction of the business, affairs and property of the Corporation, and of its several officers, and shall have and exercise all such powers and discharge such duties as usually pertain to the office of President. Section 5.10. Vice-Presidents: The vice-president, or vice-presidents if there is more than one, shall, subject to the direction of the Board of Directors, at the request of the President or in his absence, or in case of his inability to perform his duties from any cause, perform the duties of the President, and, when so acting, shall have all the powers of, and be subject to all restrictions upon, the President. The vice-presidents shall also perform such other duties as may be assigned 7 to them by the Board of Directors, and the Board of Directors may determine the order of priority among them. Section 5.11. Secretary: The Secretary shall perform such duties as are incident to the office of Secretary, or as may from time to time be assigned to him by the Board of Directors, or as are prescribed by these By-laws. Section 5.12. Treasurer: The Treasurer shall perform such duties and have powers as are usually incident to the office of Treasurer or which may be assigned to him by the Board of Directors. ARTICLE VI. CAPITAL STOCK Section 6.01. Issue of Certificates of Stock: Certificates of capital stock shall be in such form as shall be approved by the Board of Directors. They shall be numbered in the order of their issue and shall be signed by the Chairman of the Board of Directors, the President or one of the vice-presidents, and the Secretary or an assistant secretary or the treasurer or an assistant treasurer, and the seal of the Corporation or a facsimile thereof shall be impressed or affixed or reproduced thereon, provided, however, that where such certificates are signed by a transfer agent or an assistant transfer agent or by a transfer clerk acting on behalf of the Corporation and a registrar, the signature of any such Chairman of the Board of Directors, President, vice-president, Secretary, assistant secretary, treasurer or assistant treasurer may be facsimile. In case any officer or officers who shall have signed, or whose facsimile signature or signatures shall have been used on any such certificate or certificates shall cease to be such officer or officers of the Corporation, whether because of death, resignation or otherwise, before such certificate or certificates shall have been delivered by the Corporation, such certificate or certificates may nevertheless be adopted by the Corporation and be issued and delivered as though the person or persons who signed such certificate or certificates, or whose facsimile signature or signatures shall have been used thereon have not ceased to be such officer or officers of the Corporation. Section 6.02. Registration and Transfer of Shares: The name of each person owning a share of the capital stock of the Corporation shall be entered on the books of the Corporation together with the number of shares held by him, the numbers of the certificates covering such shares and the dates of issue of such certificates. The shares of stock of the Corporation shall be transferable on the books of the Corporation by the holders thereof in person, or by their duly authorized attorneys or legal representatives, on surrender and cancellation of certificates for a like number of shares, accompanied by an assignment or power of transfer endorsed thereon or attached thereto, duly executed, and with such proof of the authenticity of the signature as the Corporation or its agents may reasonably require. A record shall be made of each transfer. The Board of Directors may make other and further rules and regulations concerning the transfer and registration of certificates for stock and may appoint a transfer agent or registrar or both and may require all certificates of stock to bear the signature of either or both. 8 Section 6.03. Lost, Destroyed and Mutilated Certificates: The holder of any stock of the Corporation shall immediately notify the Corporation of any loss, theft, destruction or mutilation of the certificates therefor. The Corporation may issue a new certificate of stock in the place of any certificate theretofore issued by it alleged to have been lost, stolen or destroyed, and the Board of Directors may, in its discretion, require the owner of the lost, stolen or destroyed certificate, or his legal representatives, to give the Corporation a bond, in such sum not exceeding double the value of the stock and with such surety or sureties as they may require, to indemnify it against any claim that may be made against it by reason of the issue of such new certificate and against all other liability in the premises, or may remit such owner to such remedy or remedies as he may have under the laws of the State of Delaware. ARTICLE VII. DIVIDENDS, SURPLUS, ETC. Section 7.01. General Discretion of Directors: The Board of Directors shall have power to fix and vary the amount to be set aside or reserved as working capital of the Corporation, or as reserves, or for other proper purposes of the Corporation, and, subject to the requirements of the Certificate of Incorporation, to determine whether any, if any, part of the surplus or net profits of the Corporation shall be declared as dividends and paid to the stockholders, and to fix the date or dates for the payment of dividends. ARTICLE VIII. MISCELLANEOUS PROVISIONS. Section 8.01. Fiscal Year: The fiscal year of the Corporation shall commence on the first day of January and end on the last day of December. Section 8.02. Corporate Seal: The corporate seal shall be in such form as approved by the Board of Directors and may be altered at their pleasure. The corporate seal may be used by causing it or a facsimile thereof to be impressed or affixed or reproduced or otherwise. Section 8.03. Notices: Except as otherwise expressly provided, any notice required by these By-laws to be given shall be sufficient if given by depositing the same in a post office or letter box in a sealed postpaid wrapper addressed to the person entitled thereto at his address, as the same appears upon the books of the Corporation, or by sending via facsimile, telegraphing or cabling the same to such person at such addresses; and such notice shall be deemed to be given at the time it is mailed, sent via facsimile, telegraphed or cabled. Section 8.04. Waiver of Notice: Any stockholder or director may at any time, by writing or by telegraph or by cable, waive any notice required to be given under these By-laws, and if any stockholder or director shall be present at any meeting his presence shall constitute a waiver of such notice. 9 Section 8.05. Checks, Drafts, etc.: All checks, drafts or other orders for the payment of money, notes or other evidences of indebtedness issued in the name of the Corporation, shall be signed by such officer or officers, agent or agents of the Corporation, and in such manner, as shall from time to time be designated by resolution of the Board of Directors. Section 8.06. Deposits: All funds of the Corporation shall be deposited from time to time to the credit of the Corporation in such bank or banks, trust companies or other depositories as the Board of Directors may select, and, for the purpose of such deposit, checks, drafts, warrants and other orders for the payment of money which are payable to the order of the Corporation, may be endorsed for deposit, assigned and delivered by any officer of the Corporation, or by such agents of the Corporation as the Board of Directors or the President may authorize for that purpose. Section 8.07. Voting Stock of Other Corporations: Except as otherwise ordered by the Board of Directors or the Executive Committee, the President or the treasurer shall have full power and authority on behalf of the Corporation to attend and to act and to vote at any meeting of the stockholders of any corporation of which the Corporation is a stockholder and to execute a proxy to any other person to represent the Corporation at any such meeting, and at any such meeting the President or the treasurer or the holder of any such proxy, as the case may be, shall possess and may exercise any and all rights and powers incident to ownership of such stock and which, as owner thereof, the Corporation might have possessed and exercised if present. The Board of Directors or the Executive Committee may from time to time confer like powers upon any other person or persons. Section 8.08. Indemnification of Officers and Directors: The Corporation shall indemnify any and all of its directors or officers, including former directors or officers, and any employee, who shall serve as an officer or director of any corporation at the request of this Corporation, to the fullest extent permitted under and in accordance with the laws of the State of Delaware. ARTICLE IX. AMENDMENTS. The Board of Directors shall have the power to make, rescind, alter, amend and repeal these By-laws, provided, however, that the stockholders shall have power to rescind, alter, amend or repeal any by-laws made by the Board of Directors, and to enact by-laws which if so expressed shall not be rescinded, altered, amended or repealed by the Board of Directors. No change of the time or place for the annual meeting of the stockholders for the election of directors shall be made except in accordance with the laws of the State of Delaware. 10 EX-3.38 37 file036.txt ARTICLES OF INCORPORATION OF TRIENDA CORPORATION. ARTICLES OF INCORPORATION OF TRIENDA NEWCO, INC. The undersigned incorporator, desiring to form a corporation (hereinafter referred to as the "Corporation") pursuant to the provisions of the Indiana Business Corporation Law, as amended (hereinafter referred to as the "Act"), executes the following Articles of Incorporation. ARTICLE I NAME The name of the Corporation is TriEnda Newco, Inc. ARTICLE II SHARES Section 2.1. Number. The total number of shares which the Corporation is authorized to issue is one thousand (1,000) shares, with par value of One Dollar ($1.00) per share. Section 2.2. Classes. There shall be one (1) class of shares of the Corporation, which shall be designated as "Common Shares". Section 2.3. Relative Rights, Preferences, Limitations and Restrictions of Common Shares. All Common Shares shall have the same rights, preferences, limitations and restrictions. Section 2.4. Voting Rights of Common Shares. Each holder of Common Shares shall be entitled to one (1) vote for each share owned of record on the books of the Corporation on each matter submitted to a vote of the holders of Common Shares. ARTICLE III REGISTERED OFFICE AND REGISTERED AGENT Section 3.1. Registered Office. The street address of the Corporation's initial registered office is 5875 Castle Creek Parkway, North Drive, Suite 440, Indianapolis, Indiana 46250-4330. Section 3.2. Registered Agent. The name of the Corporation's initial registered agent at such registered office is Alltrista Corporation. ARTICLE IV INCORPORATOR The name and address of the incorporator of the Corporation are:
Name Address ---- ------- Lynn M. Gagel ICE MILLER DONADIO & RYAN One American Square, #3100 P. O. Box 82001 Indianapolis, Indiana 46282-0002
ARTICLE V BOARD OF DIRECTORS Section 5.1. Number. The total number of directors shall be that specified in or fixed in accordance with the bylaws. In the absence of a provision in the bylaws specifying the number of directors or setting forth the manner in which such number shall be fixed, the number of directors shall be three (3). The bylaws may provide for staggering the terms of directors by dividing the directors into two (2) or three (3) groups, as provided in the Act. Section 5.2. Initial Board of Directors. The names and addresses of the initial directors of the Corporation are:
Name Address ---- ------- Thomas B. Clark 5875 Castle Creek Parkway, North Drive Suite 440 Indianapolis, Indiana 46250-4330 John F. Zappala 5875 Castle Creek Parkway, North Drive Suite 440 Indianapolis, Indiana 46250-4330 Kevin D. Bower 5875 Castle Creek Parkway, North Drive Suite 440 Indianapolis, Indiana 46250-4330
ARTICLE VI INDEMNIFICATION Section 6.1. Rights to Indemnification and Advancement of Expenses. (a) The Corporation shall indemnify as a matter of right every person made a party to a proceeding because such person is or was (i) a member of the Board of Directors of the Corporation, (ii) an officer of the Corporation, or (iii) while a director or officer of the Corporation, serving at the Corporation's request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, whether for profit or not, (each an "Indemnitee") against all liability incurred by such person in connection with the proceeding; provided that it is determined in the specific case that indemnification of such person is permissible in the circumstances because such person has met the standard of conduct for indemnification specified in the Act. The Corporation shall pay for or reimburse the reasonable expenses incurred by an Indemnitee in connection with any such proceeding in advance of final disposition thereof in accordance with the procedures and subject to the conditions specified in the Act. The Corporation shall indemnify as a matter of right an Indemnitee who is wholly successful, on the merits or otherwise, in the defense of any such proceeding, against reasonable expenses incurred by the Indemnitee in connection with the proceeding without the requirement of a determination as set forth in the first sentence of this paragraph. (b) Upon demand by a person for indemnification or advancement of expenses, as the case may be, the Corporation shall expeditiously determine whether the person is entitled thereto in accordance with this Article and the procedures specified in the Act. (c) The indemnification provided under this Article shall apply to any proceeding arising from acts or omissions occurring before or after the adoption of this Article. Section 6.2. Other Rights Not Affected. Nothing contained in this Article shall limit or preclude the exercise or be deemed exclusive of any right under the law, by contract or otherwise, relating to indemnification of or advancement of expenses to any individual who is or was a director, officer, employee or agent of the Corporation, or the ability of the Corporation to otherwise indemnify or advance expenses to any such individual. It is the intent of this Article to provide indemnification to directors and officers to the fullest extent now or hereafter permitted by law consistent with the terms and conditions of this Article. Therefore, indemnification shall be provided in accordance with this Article irrespective of the nature of the legal or equitable theory upon which a claim is made, including without limitation negligence, breach of duty, mismanagement, corporate waste, breach of contract, breach of warranty, strict liability, violation of federal or state securities laws, violation of the Employee Retirement Income Security Act of 1974, as amended, or violation of any other state or federal laws. Section 6.3. Definitions. For purposes of this Article: (a) The term "director" means an individual who is or was a member of the Board of Directors of the Corporation or an individual who, while a director of the Corporation, is or was serving at the Corporation's request as a director, officer, partner, trustee, employee, or agent of another foreign or domestic corporation, partnership, joint venture, trust, employee benefit plan, or other enterprise, whether for profit or not. A director is considered to be serving an employee benefit plan at the Corporation's request if the director's duties to the Corporation also impose duties on, or otherwise involve services by, the director to the plan or to participants in or beneficiaries of the plan. The term "director" includes, unless the context requires otherwise, the estate or personal representative of a director. (b) The term "expenses" includes all direct and indirect costs (including without limitation counsel fees, retainers, court costs, transcripts, fees of experts, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, all other disbursements or out-of-pocket expenses) actually incurred in connection with the investigation, defense, settlement or appeal of a proceeding or establishing or enforcing a right to indemnification under this Article, applicable law or otherwise. (c) The term "liability" means the obligation to pay a judgment, settlement, penalty, fine, excise tax (including an excise tax assessed with respect to an employee benefit plan), or reasonable expenses incurred with respect to a proceeding. (d) The term "party" includes an individual who was, is or is threatened to be made a named defendant or respondent in a proceeding. (e) The term "proceeding" means any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and whether formal or informal. IN WITNESS WHEREOF, the undersigned incorporator designated in Article IV executes these Articles of Incorporation and hereby verifies subject to penalties of perjury that the facts contained herein are true. Dated this 23rd day of March, 1999. /s/ Lynn M. Gagel ----------------- EX-3.39 38 file037.txt ARTICLES OF AMENDMENT ARTICLES OF AMENDMENT OF THE ARTICLES OF INCORPORATION OF: Name of the Corporation: Date of Incorporation: TriEnda Newco, Inc. March 23, 1999 The undersigned officers of TriEnda Newco, Inc. (hereinafter referred to as the "Corporation") existing pursuant to the provisions of the Indiana Business Corporation Law as amended (hereinafter referred to as the "Act"), desiring to give notice of corporate action effectuating amendment of certain provisions of its Articles of Incorporation, certify the following facts: ARTICLE I AMENDMENT(S) The exact text of Article(s): Article I of the Articles (NOTE: If amending the name of corporation, write Article "I" in space above and write "The name of the Corporation is ______________________." below.) The name of the corporation is TriEnda Corporation". ARTICLE II Date of each amendment's adoption: Upon approval of this amendment. ARTICLE III MANNER OF ADOPTION AND VOTE The shareholders of the Corporation entitled to vote in respect to the amendment adopted the proposed amendment. The amendment was adopted by: Unanimous written consent executed on June 15, 1999 and signed by all shareholders entitled to vote. ARTICLE IV COMPLIANCE WITH LEGAL REQUIREMENTS The manner of the adoption of the Articles of Amendment and the vote by which they were adopted constitute full legal compliance with the provisions of the Act, the Articles of Incorporation, and the By-Laws of the Corporation. I hereby verify, subject to the penalties of perjury, that the statements contained herein are true, this 15th day of June, 1999. /s/ Angela K. Knowlton EX-3.40 39 file038.txt BYLAWS OF TRIENDA CORPORATION. BYLAWS OF TRIENDA NEWCO, INC. ARTICLE I RECORDS PERTAINING TO SHARE OWNERSHIP Section 1. Recognition of Shareholders. TriEnda Newco, Inc. (the "Corporation") is entitled to recognize a person registered on its books as the owner of shares of the Corporation as having the exclusive right to receive dividends and to vote those shares, notwithstanding any other person's equitable or other claim to, or interest in, those shares. Section 2. Transfer of Shares. Shares are transferable only on the books of the Corporation, subject to any transfer restrictions imposed by the Articles of Incorporation, these Bylaws, or an agreement among shareholders and the Corporation. Shares may be so transferred upon presentation of the certificate representing the shares, endorsed by the appropriate person or persons, and accompanied by (a) reasonable assurances that those endorsements are genuine and effective, and (b) a request to register the transfer. Transfers of shares are otherwise subject to the provisions of the Indiana Business Corporation Law (the "Act") and Article 8 of the Indiana Uniform Commercial Code. Section 3. Certificates. Each shareholder is entitled to a certificate signed (manually or in facsimile) by the President and the Secretary or an Assistant Secretary, setting forth (a) the name of the Corporation, and that it was organized under Indiana law, (b) the name of the person to whom issued, and (c) the number of shares represented. The Board of Directors shall prescribe the form of the certificate. Section 4. Lost or Destroyed Certificates. A new certificate may be issued to replace a lost or destroyed certificate. Unless waived by the Board of Directors, the shareholder in whose name the certificate was issued shall make an affidavit or affirmation of the fact that his certificate is lost or destroyed, shall advertise the loss or destruction in such manner as the Board of Directors may require, and shall give the Corporation, a bond of indemnity in the amount and form which the Board of Directors may prescribe. ARTICLE II MEETINGS OF THE SHAREHOLDERS Section 1. Annual Meeting. Annual meetings of the shareholders shall be held on such date as may be designated by the Board of Directors. Section 2. Special Meetings. Special meetings of the shareholders may be called by the President or by the Board of Directors. Special meetings of the shareholders shall be called upon delivery to the Secretary of the Corporation of one or more written demands for a special meeting of the shareholders describing the purposes of that meeting and signed and dated by the holders of at least 25% of all the votes entitled to be cast on any issue proposed to be considered at that meeting. Section 3. Notice of Meetings. The Corporation shall deliver or mail written notice stating the date, time, and place of any shareholders' meeting and, in the case of a special shareholders' meeting or when otherwise required by law, a description of the purposes for which the meeting is called, to each shareholder of record entitled to vote at the meeting, at such address as appears in the records of the Corporation and at least 10, but no more than 60, days before the date of the meeting. A shareholders' meeting shall be held at such place, either in or out of the State of Indiana, as may be specified by the Board of Directors in the respective notice for such meeting. Section 4. Waiver of Notice. A shareholder may waive notice of any meeting, before or after the date and time of the meeting as stated in the notice, by delivering a signed waiver to the Corporation for inclusion in the minutes. A shareholder's attendance at any meeting, in person or by proxy (a) waives objection to lack of notice or defective notice of the meeting, unless the shareholder at the beginning of the meeting objects to holding the meeting or transacting business at the meeting, and (b) waives objection to consideration of a particular matter at the meeting that is not within the purposes described in the meeting notice, unless the shareholder objects to considering the matter when it is presented. Section 5. Record Date. The Board of Directors may fix a record date, which may be a future date, for the purpose of determining the shareholders entitled to notice of a shareholders' meeting, to demand a special meeting, to vote, or to take any other action. A record date may not exceed 70 days before the meeting or action requiring a determination of shareholders. If the Board of Directors does not fix a record date, the record date shall be the 10th day prior to the date of the meeting or other action. Section 6. Voting by Proxy. A shareholder may appoint a proxy to vote or otherwise act for the shareholder pursuant to a written appointment form executed by the shareholder or the shareholder's duly authorized attorney-in-fact. An appointment of a proxy is effective when received by the Secretary or other officer or agent of the Corporation authorized to tabulate votes. The general proxy of a fiduciary is given the same effect as the general proxy of any other shareholder. A proxy appointment is valid for 11 months unless otherwise expressly stated in the appointment form. Section 7. Voting Lists. After a record date for a shareholders' meeting has been fixed, the Secretary shall prepare an alphabetical list of all shareholders entitled to notice of the meeting showing the address and number of shares held by each shareholder. The list shall be kept on file at the principal office of the Corporation or at a place identified in the meeting notice in the city where the meeting will be held. The list shall be available for inspection and copying by any shareholder entitled to vote at the meeting, or by the shareholder's agent or attorney authorized in writing, at any time during regular business hours, beginning 5 business days before the date of the meeting through the meeting. The list shall also be made available to any shareholder, or to the shareholder's agent or attorney authorized in writing, at the meeting and any adjournment thereof. Failure to prepare or make available a voting list with respect to any shareholder's meeting shall not affect the validity of any action taken at such meeting. Section 8. Quorum; Approval. At any meeting of shareholders, a majority of the votes entitled to be cast on a matter at the meeting constitutes a quorum. If a quorum is present when a vote is taken, action on a matter is approved if the votes cast in favor of the action exceed the votes cast in opposition to the action, unless a greater number is required by law, the Articles of Incorporation, or these Bylaws. Section 9. Action by Consent. Any action required or permitted to be taken at a shareholders' meeting may be taken without a meeting if the action is taken by all the shareholders entitled to vote on the action. The action must be evidenced by one or more written consents describing the action taken, signed by all the shareholders entitled to vote on the action, and delivered by hand or certified or registered mail, return receipt requested or by facsimile to the Corporation for inclusion in the minutes. If not otherwise determined pursuant to Section 5 of this Article II, the record date for determining shareholders entitled to take action without a meeting is the date the first shareholder signs the consent to such action. Section 10. Presence. Any or all shareholders may participate in any annual or special shareholders' meeting by, or through the use of, any means of communication by which all shareholders participating may simultaneously hear each other during the meeting. A shareholder so participating is deemed to be present in person at the meeting. Section 11. Place of Meetings. Meetings of the shareholders of the Corporation shall be held at such place, either in or out of the State of Indiana, as may be specified by the Board of Directors. ARTICLE III Board of Directors Section 1. Powers and Duties. All corporate powers are exercised by or under the authority of, and the business and affairs of the Corporation are managed under the direction of, the Board of Directors, unless otherwise provided in the Articles of Incorporation. Section 2. Number and Terms of Office; Qualifications. The Corporation shall have 3 directors. Directors are elected at each annual shareholders' meeting and serve for a term expiring at the following annual shareholders' meeting. A director who has been removed pursuant to Section 3 of this Article III ceases to serve immediately upon removal; otherwise, a director whose term has expired continues to serve until a successor is elected and qualifies or until there is a decrease in the number of directors. A person need not be a shareholder or an Indiana resident to qualify to be a director. Section 3. Removal. Any director may be removed with or without cause by action of the shareholders taken at any meeting the notice of which states that one of the purposes of the meeting is removal of the director. Section 4. Vacancies. If a vacancy occurs on the Board of Directors, including a vacancy resulting from an increase in the number of directors, the Board of Directors may fill the vacancy. If the directors remaining in office constitute fewer than a quorum of the Board, the directors remaining in office may fill the vacancy by the affirmative vote of a majority of those directors. Any director elected to fill a vacancy holds office until the next annual meeting of the shareholders and until a successor is elected and qualifies. Section 5. Annual Meetings. Unless otherwise agreed by the Board of Directors, the annual meeting of the Board of Directors shall be held immediately following the annual meeting of the shareholders, at the place where the meeting of shareholders was held, for the purpose of electing officers and considering any other business which may be brought before the meeting. Notice is not necessary for any annual meeting. Section 6. Regular and Special Meetings. Regular meetings of the Board of Directors may be held pursuant to a resolution of the Board of Directors establishing a method for determining the date, time, and place of those meetings. Notice is not necessary for any regular meeting. Special meetings of the Board of Directors may be held upon the call of the President or of any 2 directors and upon 24 hours' written or oral notice specifying the date, time, and place of the meeting. Notice of a special meeting may be waived in writing before or after the time of the meeting. The waiver must be signed by the director entitled to the notice and filed with the minutes of the meeting. Attendance at or participation in a meeting waives any required notice of the meeting, unless at the beginning of the meeting (or promptly upon the director's arrival) the director objects to holding the meeting or transacting business at the meeting and does not thereafter vote for or assent to action taken at the meeting. Section 7. Quorum. A quorum for the transaction of business at any meeting of the Board of Directors consists of a majority of the number of directors specified in Section 2 of this Article III. If a quorum is present when a vote is taken, action on a matter is approved if the action receives the affirmative vote of a majority of the directors present. Section 8. Action by Consent. Any action required or permitted to be taken at any meeting of the Board of Directors may be taken without a meeting if the action is taken by all directors then in office. The action must be evidenced by one or more written consents describing the action taken, signed by each director, shall be delivered by hand or certified or registered mail, return receipt requested or by facsimile, and included in the minutes. Action of the Board of Directors taken by consent is effective when the last director signs the consent, unless the consent specifies a prior or subsequent effective date. Section 9. Committees. The Board of Directors may create one or more committees and appoint members of the Board of Directors to serve on them. Each committee may have one or more members, who serve at the pleasure of the Board of Directors. The creation of a committee and appointment of members to it must be approved by the greater of (a) a majority of all the directors in office when the action is taken, or (b) the number of directors required under Section 7 of this Article III to take action. All rules applicable to action by the Board of Directors apply to committees and their members. The Board of Directors may specify the authority that a committee may exercise; however, a committee may not (a) authorize distributions, except a committee may authorize or approve a reacquisition of shares if done according to a formula or method prescribed by the Board of Directors, (b) approve or propose to shareholders action that must be approved by shareholders, (c) fill vacancies on the Board of Directors or on any of its committees, (d) amend the Articles of Incorporation, (e) adopt, amend, or repeal these Bylaws, (f) approve a plan of merger not requiring shareholder approval, or (g) authorize or approve the issuance or sale or a contract for the sale of shares, or determine the designation and relative rights, preferences, and limitations of a class or series of shares, except the Board of Directors may authorize a committee to so act within limits prescribed by the Board of Directors. Section 10. Presence. The Board of Directors may permit any or all directors to participate in any annual, regular, or special meeting by any means of communication by which all directors participating may simultaneously hear each other during the meeting. A director so participating is deemed to be present in person at the meeting. Section 11. Compensation. Each director shall receive such compensation for service as a director as may be fixed by the Board of Directors. ARTICLE IV OFFICERS Section 1. Officers. The Corporation shall have a President, a Secretary and a Treasurer and such assistant officers as the Board of Directors or the President designates. The Corporation may have one or more Vice Presidents as may be designated by the Board of Directors. The same individual may simultaneously hold more than one office. Section 2. Terms of Office. Officers are elected at each annual meeting of the Board of Directors and serve for a term expiring at the following annual meeting of the Board of Directors. An officer who has been removed pursuant to Section 4 of this Article IV ceases to serve as an officer immediately upon removal; otherwise, an officer whose term has expired continues to serve until a successor is elected and qualifies. Section 3. Vacancies. If a vacancy occurs among the officers, the Board of Directors may fill the vacancy. Any officer elected to fill a vacancy holds office until the next annual meeting of the Board of Directors and until a successor is elected and qualifies. Section 4. Removal. Any officer may be removed by the Board of Directors at any time with or without cause. Section 5. Compensation. Each officer shall receive such compensation for service in office as may be fixed by the Board of Directors. Section 6. President. The President is the chief executive officer of the Corporation and is responsible for managing and supervising the affairs and personnel of the Corporation, subject to the general control of the Board of Directors. The President presides at all meetings of shareholders and directors. The President, or proxies appointed by the President, may vote shares of other corporations owned by the Corporation. The President has authority to execute, with the Secretary, powers of attorney appointing other corporations, partnerships, or individuals as the agents of the Corporation, subject to law, the Articles of Incorporation, and these Bylaws. The President has such other powers and duties as the Board of Directors may from time to time prescribe. Section 7. Secretary. The Secretary is responsible for (a) attending all meetings of the shareholders and the Board of Directors, (b) preparing true and complete minutes of the proceedings of all meetings of the shareholders, the Board of Directors, and all committees of the Board of Directors, (c) maintaining and safeguarding the books (except books of account) and records of the Corporation, and (d) authenticating the records of the Corporation. If required, the Secretary attests the execution of deeds, leases, agreements, powers of attorney, certificates representing shares of the Corporation, and other official documents by the Corporation. The Secretary serves all notices of the Corporation required by law, the Board of Directors, or these Bylaws. The Secretary has such other duties as the Board of Directors may from time to time prescribe. Section 8. Vice Presidents. The Board of Directors may from time to time designate and elect a Vice President or Vice Presidents who shall have such powers and duties as the Board of Directors may from time to time prescribe. Section 9. Treasurer. The Treasurer is responsible for (a) keeping correct and complete books of account which show accurately at all times the financial condition of the Corporation, (b) safeguarding all funds, notes, securities, and other valuables which may from time to time come into the possession of the Corporation, and (c) depositing all funds of the Corporation with such depositories as the Board of Directors shall designate. The Treasurer shall furnish at meetings of the Board of Directors, or when otherwise requested, a statement of the financial condition of the Corporation. The Treasurer has such other duties as the Board of Directors may from time to time prescribe. Section 10. Assistant Officers. The Board of Directors or the President may from time to time designate and elect assistant officers who shall have such powers and duties as the officers whom they are elected to assist specify and delegate to them, and such other powers and duties as the Board of Directors or the President may from time to time prescribe. An Assistant Secretary may, during the absence or disability of the Secretary, discharge all responsibilities imposed upon the Secretary of the Corporation, including, without limitation, attest the execution of all documents by the Corporation. ARTICLE V MISCELLANEOUS Section 1. Records. The Corporation shall keep as permanent records minutes of all meetings of the shareholders, the Board of Directors, and all committees of the Board of Directors, and a record of all actions taken without a meeting by the shareholders, the Board of Directors, and all committees of the Board of Directors. The Corporation or its agent shall maintain a record of the shareholders in a form that permits preparation of a list of the names and addresses of all shareholders, in alphabetical order showing the number of shares held by each. The Corporation shall maintain its records in written form or in a form capable of conversion into written form within a reasonable time. The Corporation shall keep a copy of the following records at its principal office: (a) the Articles of Incorporation then currently in effect, (b) the Bylaws then currently in effect, (c) minutes of all shareholders' meetings, and records of all actions taken by shareholders without a meeting, for the past 3 years, (d) all written communications to shareholders generally during the past 3 years, including annual financial statements furnished upon request of the shareholders, (e) a list of the names and business addresses of the current directors and officers, and (f) the most recent annual report filed with the Indiana Secretary of State. Section 2. Execution of Contracts and Other Documents. Unless otherwise authorized or directed by the Board of Directors, all written contracts and other documents entered into by the Corporation shall be executed on behalf of the Corporation by the President or his or her designee and, if required, attested by the Secretary or an Assistant Secretary. Section 3. Accounting Year. The accounting year of the Corporation begins on January 1 of each year and ends on the December 31 immediately following. Section 4. Corporate Seal. The Corporation has no seal. ARTICLE VI AMENDMENT These Bylaws may be amended or repealed only by the Board of Directors. The affirmative vote of a majority of all the directors is necessary to amend or repeal these Bylaws. EX-3.41 40 file039.txt ARTICLES OF INCORPORATION COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF STATE CORPORATION BUREAU ARTICLES OF INCORPORATION - DOMESTIC BUSINESS CORPORATION W. MARKET ST. CO. A CLOSE CORPORATION In compliance with the requirements of section 373 of the Business Corporation Law, act of May 8, 1933 (P.L. 364) (15 P.S. ss. 1373) the undersigned desiring to be incorporated as a business corporation which is a close corporation, hereby certifies (certify) that: 1. The name of the corporation is: W. Market St. Co. 2. The location and post office address of the initial registered office of the corporation in this Commonwealth is: P.O. Box 591, 119 West Market Street, Lewistown, Pennsylvania, 17044. 3. The corporation is incorporated under the Business Corporation Law of the Commonwealth of Pennsylvania for the following purpose or purposes: to engage in and to do any lawful act concerning any or all lawful business for which corporations may be incorporated under the Pennsylvania Business Corporation Law of 1933, as amended. 4. The term for which the corporation is to exist is: perpetual. 5. The aggregate number of shares which the corporation shall have authority to issue is: Five(5) shares of common stock, each share having a par value of One ($1.00) Dollar, to aggregate Five ($5.00) Dollars of authorized capital. 6. The following provisions shall regulate the status of the corporation as a close corporation: (a) All of the issued shares of the corporation of all classes, exclusive of treasury shares, shall be held of record by not more than 25 persons. (b) All of the issued shares of all classes of the corporation shall be subject to one or more of the restrictions or transfer permitted by section 613.1 of the Business Corporation Law (15 P.S.ss. 1613.1). (c) The corporation shall make no offering of any of its shares of any class which would constitute a "public offering" within the meaning of the Securities Act of 1933, as amended. 7. (Optional: BCL ss.382) The business and affairs of the corporation shall be managed by the shareholders of the corporation rather than by a board of directors. 8. (Optional: BCL ss.376B) The status of the corporation as a "close corporation" within the meaning of the Business Corporation Law shall not be terminated without the affirmative vote or written consent of shareholders holding two-thirds (2/3) of the shares of all classes of the corporation. (fraction at least two-thirds) 9. (Optional: BCL ss.384B) (Any shareholder) Shareholders holding one-half (1/2) of the shares plus one (1) share more of the corporation may apply for the appointment of a provisional director of the corporation in the manner and upon the circumstances provided by statute. 10. (Optional: BCL ss.386) (Any shareholder) Shareholders holding one-half (1/2) of the shares plus one (1) share more of the corporation shall have the right at will to cause the corporation to be dissolved by proceeding in the manner provided by statute. 11. The name(s) and post office address(es) of each incorporator(s) and the number and class of shares subscribed by such incorporator(s) is (are):
NAME ADDRESS NUMBER AND CLASS OF SHARES D.M. Barron 373 West Fifth Street, Lewistown, PA 17044 One (1) share common.
IN TESTIMONY WHEREOF, the incorporator(s) has (have) signed and sealed these Articles of Incorporation this 11TH day of December, 1978. /s/ D.M. Barron --------------- EX-3.42 41 file040.txt ARTICLES OF AMENDMENT COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF STATE CORPORATION BUREAU ARTICLES OF AMENDMENT - DOMESTIC BUSINESS CORPORATION In compliance with the requirements of section 806 of the Business Corporation Law, act of May 5, 1933 (P.L. 364) (15 P.S. ss. 1806), the undersigned corporation desiring to amend the Articles does hereby certify that: 1. The name of the corporation is: W. Market St. Co. (A close corporation) 2. The location of its registered office in this Commonwealth is the Department of State is hereby authorized to correct the following statement to conform to the records of the Department: P.O. Box 591, 119 West Market Street, Lewistown, PA 17044 3. The statute by or under which it was incorporated is: Business Corporation Law, 1933, P.L. 364 4. The date of its incorporation is: December 11, 1978 5. The amendment was adopted by a consent in writing, setting forth the action so taken, signed by all of the shareholders entitled to vote thereon and filed with the Secretary of the corporation. 6. At the time of the action of shareholders (a) The total number of shares outstanding was: five (5). (b) The number of shares entitled to vote was: five (5). 7. In the action taken by the shareholders (a) The number of shares voted in favor of the amendment was: five (5). (b) The number of shares voted against the amendment was: none (0). 8. The amendment adopted by the shareholders set forth in full is as follows: Paragraph 1 of the Articles of Incorporation shall be amended to read as follows: 1. The name of the corporation is Unimark Plastics Inc. (A close corporation). 9. This amendment shall be effective on and after December 31, 1978, and upon proper Consent to Appropriation of Name by Unimark Plastics, Inc. IN TESTIMONY WHEREOF, the undersigned corporation has caused these Articles of Amendment to be signed by a duly authorized officer and its corporate seal, duly attested by another such officer, to be hereunto affixed this 28th day of December, 1978. By: ____________________________ (Signature) ____________________________ (Title) EX-3.43 42 file041.txt BYLAWS OF UNIMARK PLASTICS, INC. RE: W. Market St. Co. AND NOW, December 28, 1978, at 119 West Market Street, Lewistown , PA 17044, the undersigned, as the incorporator of W. MARKET ST. CO., a Pennsylvania close corporation, does hereby declare that written notice of the time and place of this meeting is waived and that on said day and at said place (a) the by-laws, as set forth below, were read and adopted for the corporation; (b) D. M. Barron was elected as President and Kenneth C. Myers was elected as Secretary to act for the corporation during organization and capitalization; (c) effective December 31, 1978, application to change the name of this corporation to Unimark Plastics Inc. shall be made in due form of law, incorporator to advance the costs. BY-LAWS The by-laws of this Pennsylvania close business corporation are as follows: ARTICLE I. MANAGEMENT, DIRECTORS, OFFICERS AND OFFICES. Section 1. The management of the affairs of this corporation resides with its shareholders exclusively who shall conduct such management without the election of or action by a board of directors or any other body than the shareholders, as though they were partners, pursuant to ss.1385 of the Pennsylvania Business Corporation Law. Section 2. Prior to formal organization and capitalization the incorporator may elect acting officers who shall exercise plenary powers over the affairs of the corporation and after the issuance of stock to shareholders, the shareholders shall elect a President, Secretary and Treasurer, and such other officers and employees as they desire. Officers' duties shall be fixed by the shareholders. One person may hold more than one office at anyone time and for any period of time. Section 3. If there shall be only one (1) shareholder, the use of the plural in these by-laws shall mean the singular. At all other times, use of the singular shall include the plural and use of the masculine gender shall include the feminine. Section 4. The registered office, business offices and the places of meeting pursuant to these by-laws shall be as fixed from time to time by the shareholders and such may be within or without the Commonwealth of Pennsylvania. Section 5. All books, records, papers, memoranda and other tangible records of the corporation shall be and remain the property of the corporation and shall not become in any way the property of any shareholder, officer or employee unless specifically agreed to, evidenced upon the minutes of the corporation. ARTICLE II. SHAREHOLDER REGULATIONS Section 1. All meetings of the shareholders shall be held when and where called according to Section 4 of this Article. Section 2. No annual meetings of the shareholders shall be held. Section 3. At any meeting there may be transacted any business of the corporation; no nature of subject matter being required. Section 4. Meetings of the shareholders, unless otherwise prescribed by statute or by the Articles of Incorporation, may be called at any time by (a) the president, or (b) the holders of not less than one-fifth of all the shares issued and outstanding and entitled to vote at the particular meeting, upon written request to the secretary of the corporation. Upon receipt of such request, the secretary shall issue a call therefor at such time, not more than five (5) days thereafter, as the secretary may fix. If the secretary shall neglect to issue such call within twenty-four (24) hours of delivery, the person or persons making the request may issue the call. Section 5. The call of a shareholders' meeting shall specify the place, date and hour and be by telephone, verbal notice in person, or in writing, hand delivered or mailed, postage prepaid, at least twenty-four (24) hours prior to the meeting, unless other notice form or a greater period of notice is required by statute, to each shareholder of record. Messages or mail shall be delivered to such last known address as given to the secretary by the shareholder. Section 6. The secretary shall determine who are the shareholders of the corporation forthwith upon receipt of a proper call for a meeting, and prepare and issue a complete list of shareholders who shall thereby be deemed to be the only persons entitled to vote at the forthcoming meeting. This list shall be posted at the registered office at a place subject to ready inspection by shareholder at any time during usual business hours. Such list shall also be produced and posted at the meeting and be subject to inspection by anyone during the entire meeting. Failure to prepare or post such list shall not invalidate any meeting otherwise duly called. Section 7. When a change in the corporate capital structure is desired, the secretary's list of shareholders shall be the official determination of those entitled to receive payment of any stock or cash capital dividend or distribution or to receive any allotment of rights or to exercise the rights in respect to any change, conversion or exchange of shares. Section 8. The corporation shall be entitled to treat the holder of record of any share or shares as the holder in fact thereof and shall not be bound to recognize any equitable rights or other person, and shall not be liable for any registration or transfer of shares which are registered or to be registered in the name of a fiduciary or the nominee of a fiduciary unless made with actual knowledge that a fiduciary or nominee of a fiduciary is committing a breach of trust in requesting such registration or transfer, or with knowledge of such facts that its participation therein amounts to bad faith. Section 9. A majority of the issued and outstanding shares held by those present in person or represented by proxy shall constitute a meeting quorum for the transaction of business, unless provided otherwise by statute, the articles of incorporation or these by-laws. If any meeting cannot be convened for lack of a quorum, the shareholders then and there present in person or by proxy shall have power, except as otherwise provided by statute, to adjourn the meeting to such time as they may determine. The shareholders present in person or by proxy at the adjourned meeting, although less than a quorum, shall nevertheless constitute a quorum for all purposes. At any adjourned meeting, the shareholders may do any business which might be transacted at the meeting originally called. Section 10. When a quorum is present or represented at any meeting, the vote of the holders of a majority of the shares having voting powers, present in person or represented by proxy, shall decide any question brought before such meeting, unless the provisions of statutes, or the articles of incorporation, or these by-laws, require a different vote in which case such provisions shall govern and control. Section 11. Each shareholder shall at every meeting of the shareholders be entitled to one vote in person or by proxy for each share having voting power held by such shareholder, but no proxy shall be voted on or after three (3) months from its date, unless coupled with an interest. Once a meeting is properly convened and a roll call of shareholders entitled to vote is concluded, no transferees need be recognized thereafter at such meeting. Section 12. Any action which may be lawfully taken at a meeting of shareholders may be taken without a meeting upon written consent setting forth the action so taken and signed by all shareholders entitled to vote at a meeting for the same purpose and the written consent shall be filed with the secretary of the corporation and made a part of its official minutes. ARTICLE III. OFFICER ELECTIONS, APPOINTMENTS AND REGULATIONS Section 1. All officers shall be natural persons of full age, legally competent to make binding contracts provided, however, that the treasurer may be a corporation. Officers need not be shareholder. Section 2. The shareholders shall elect a president, a secretary and a treasurer as the first order of business at the first meeting convened or consent action taken after incorporation. Such other officers as shareholders desire may be elected from time to time, and all officers shall serve at the pleasure of the shareholders or until successors are elected, whichever shall sooner occur. Vacancies in office may be filled as soon after such occur by a shareholder meeting or consent action. Section 4. The salaries of all officers and agents of the corporation shall be fixed by the shareholders. Section 5. The president shall be the chief executive officer of the corporation, shall preside at all meetings of the shareholders, shall have general and active management of the business of the corporation, shall execute documents in the corporation's name and shall see that all orders and resolutions of the shareholders are carried into effect. Section 6. The vice president, if one or more shall be elected, shall, in the absence or disability of the president, perform the duties and exercise the powers of the president, and shall perform such other duties and have such other powers as the shareholders may from time to time prescribe. If there be more than one vice president, the senior of them shall accede to the powers granted herein. As absence or disability of any vice president may occur, his immediate junior shall accede to these powers. Section 7. The secretary shall attend all meetings of the shareholders and record all the proceedings of such meetings in books to be kept for that purpose. He shall give, or cause to be given, notice of all meetings of the shareholders, and shall perform such other duties delegated by the shareholders or president, under whose supervision he shall be. He shall keep in safe custody the seal of the corporation and, when authorized by the shareholders, affix the same to any instrument requiring it and, when so affixed, it shall be attested by his signature or by the signature of an assistant secretary. He shall have custody of the stock certificate book and shall issue, cancel and reissue stock certificates upon proper authority. Section 8. The treasurer shall have the custody of the corporate funds and securities and shall keep full and accurate accounts of receipts and disbursements in books belonging to the corporation and shall deposit all moneys and other valuable effects in the name and to the credit of the corporation in such depositories as may be designated by the shareholders. He shall disburse corporate funds as ordered by the shareholders, taking proper vouchers for such disbursements, and shall render to the president and the shareholders, at regular meetings, or when the shareholders so require, an account of all his transactions as treasurer and of the financial condition of the corporation. If required by the shareholders, he shall give the corporation a bond in such sum and with such surety or sureties as shall be satisfactory to the shareholders for the faithful performance of the duties of his office and for the restoration to the corporation, in case of his death, resignation, retirement or removal from office of all books, papers, vouchers, money and other property of whatever kind in his possession or under his control belonging to the corporation. ARTICLE IV. CORPORATE SHARES Section 1. Share certificates of the corporation shall be in the form from time to time prescribed by the shareholders which contain the number of the certificate, the name of the registered holder, the number, class and the series, if any, of shares represented thereby and the par value of each share or a statement that such shares are without par value as the case may be. Section 2. Every share certificate shall be numbered, shall be registered in the stock certificate book, shall be signed by the president or vice president and the secretary or the treasurer and shall be sealed with the corporate seal which may be facsimile, engraved or printed. Section 3. Lost, destroyed or wrongfully taken stock certificates shall be reissued only on order of the shareholders, who may require one or more of (a) the making of an affidavit of the facts, (b) advertisement of the same in such manner as prescribed by the shareholders, and (c) bond security in such sum as the shareholders may direct, not to exceed the book value of the shares, as indemnity against any claim that may be made against the corporation with respect to the certificate or certificates alleged to have been lost, destroyed, or wrongfully taken. ARTICLE V. NOTICE REGULATIONS, DIVIDENDS, AMENDMENTS AND GENERAL PROVISIONS. Section 1. All notices may be verbal, by telephone, telegraph or other writing (delivered personally or mailed) to the shareholders at their addresses appearing on the books of the corporation. Notice by mail shall be deemed to be given at the time when the same shall be mailed. Section 2. Whenever any notice is required to be given under the provisions of the statutes or of the articles of incorporation or of these by-laws, a waiver thereof in writing signed by the person or persons entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent thereto. Section 3. Dividends upon the shares of the corporation, subject to the provisions of the articles of incorporation, if any, may be declared by the shareholders pursuant to law. Dividends may be paid in cash, in property, or in its shares, subject to the provisions of law and the articles of incorporation. Section 4. Before payment of any dividend or for any other reason, funds may be set aside as the shareholders, from time to time, in their absolute discretion, think proper as a reserve or reserves to meet contingencies, or for equalizing dividends, or for repairing or maintaining any property of the corporation, or for such other purpose as the shareholders shall think conducive to the best interest of the corporation, and the shareholders may modify or abolish any such reserve as desired. Section 5. Financial reports shall be prepared only at the direction of President or a majority of shareholders. No annual, fiscal or other routine financial reports shall be prepared except as required by tax or other law. Section 6. The corporate seal of the corporation shall have inscribed thereon the name of the corporation and the state and year of its incorporation. No seal shall be obtained or used unless further directed. A seal shall be required, if obtained, upon any documents of the corporation. Section 7. These by-laws may be amended by shareholders at any meeting or by consent action. Section 8. The word "shareholder" as used herein shall mean, unless clearly intended to mean otherwise by the context in which it appears, an individual, firm or corporation owning one or more shares of stock in this corporation, and, if such ownerships is by two or more persons, firms or corporations, or combinations thereof, the entity of multiple ownerships shall deemed to be a singular shareholder only regardless of the number making up such entity. ARTICLE VI. RESTRICTIONS ON STOCK TRANSACTIONS. Section 1. All stock issued by the corporation shall be so issued under and subject to the terms and conditions of this Article of the by-laws and no shareholder shall receive his certificate unless and until he shall sign and execute the agreement on this subject designated "Stockholders' Proviso". Section 2. The provisions of this Article may not be altered, amended or revoked except in conformity with prevailing applicable law, the provisions of Paragraph 6(b) of the Articles of Incorporation or the provisions of this Article. Section 3. No stock may be transferred for any reason by any shareholder for the period of one (1) year after purchase thereof by the shareholder. The date of purchase shall be conclusively deemed to be the date of the certificate evidencing stock ownership. Section 4. If stock may otherwise be transferred but for the limitations of this Article, such stock may not be transferred unless and until such has been offered to the corporation for acquisition by it upon terms not more burdensome than the shareholder has secured and intends to accept from a third party. If the corporation shall be unable, or fail or refuse to accept such offer, the shareholder who proposes to transfer shall offer such stock to the other and remaining shareholders on a proportionate basis wherein the numerator thereof shall be the number of shares held by each particular shareholder and the denominator shall be the number of shares issued by the corporation less the number being then offered for sale. If any shareholder shall be unable, or fail or refuse to purchase his proportionate share, the unaccepted number of shares shall be offered again to those who did so accept on a similar proportionate basis until no stock remains unpurchased or, if any stock remains unpurchased, the offering shareholder may sell such number of shares as so remain, free of this restriction. As to all new and present shareholders, the purchase shall not be consummated and a new certificate issued unless and until such shareholders shall accept the terms of this Article by signing and executing the Stockholders' Proviso, whether for the first or successive times. Section 5. To regulate the procedure for all parties to exercise the rights and privileges of Section 4, the following methods and times are established: (a) The offering shareholder shall give written notice of his intent to transfer stock and the terms thereof to the corporation and to all shareholders. (b) The corporation shall accept or refuse the offer in writing within twenty (20) days of receipt of the offer and shall so notify the offering shareholder and all other shareholders. Failure to act and notify shall be deemed a refusal of the offer. (c) Within twenty (20) days after the corporation shall have refused or failed to act (whichever shall be the sooner), shareholders shall notify offering shareholder if they wish to accept or refuse the offer. Accepting or refusing shareholders shall notify offering shareholder, the corporation and all other shareholders in writing of their actions. Failure to accept shall be deemed a refusal. If not all shareholders accept the offer, the offering shareholder shall put all shareholders on notice thereof in writing and the time for a second round of acceptances shall be twenty (20) days from such written notice. Notice in like manner shall be repeated by offering shareholder until all shares shall have been accepted by the remaining shareholders or until all remaining shareholders shall have refused or failed to accept at least once. (d) Under the procedure of subparagraph (c) hereof, once a shareholder has refused or failed to accept, he shall not thereafter have the opportunity to accept subsequent offers of the same stock. (e) In case of the death or incompetency for more than six (6) months of a shareholder, his personal representative may offer the shares of the deceased or incompetent shareholder first to the corporation and then to the remaining shareholders as provided in subparagraphs (a) through (d) above, the price to be the book value of the shares with all assets to be appraised and adjusted to current values and accounts receivable to be aged and priced according to likelihood of collection with no value to be allowed for goodwill or other intangible asset excepting only patents, royalty agreements and other direct income producing rights and privileges. (f) When transfer to the corporation is made according to the provisions of subparagraph (e), the corporation shall make payment in full within ninety (90) days of the price determination if the total price is $10,000, or less, or, if the price is more than $10,000, within one (1) year of such determination. Section 6. (a) The word "transfer" as used in this Article shall include, sale, pledge, assignment, encumbrance or any other disposition of a property interest in the stock held by a shareholder, as a part of its meaning. (b) The word "shareholder" as used in this Article is as defined in Article V, Section 8 above. Section 7. No stock shall be issued for any reason unless and until the Stockholders' Proviso shall in signed and executed in due form and the certificates of stock shall bear the endorsement: This certificate evidences a stock interest in a Pennsylvania close corporation which may have no more than twenty-five (25) --------- shareholders as defined by Pennsylvania law. THE SALE, TRANSFER, PLEDGE, ASSIGNMENT OR ENCUMBRANCE OF THESE SHARES IS RESTRICTED by and subject to the terms of Article of the by-laws of the corporation on file at its office and which also provide, among other things, that these shares may NOT BE SOLD within one (1) year from the date of this certificate. Section 8. This Article may not be amended, altered or revoked except by unanimous written agreement of all shareholders and any such agreement shall not be deemed to be a general and complete waiver of the provisions but only a special and singular waiver unless specifically stated otherwise. This Article contains all of the restrictions on the stock of the corporation and it shall remain in force for a period of three (3) years following the date of incorporation and thereafter from year to year unless revoked by vote of a majority of shares outstanding at a shareholders' meeting duly convened. EX-5.1 43 file042.txt FORM OF OPINION OF KANE KESSLER EXHIBIT 5.1 KANE KESSLER, P.C. 1350 Avenue of the Americas New York, NY 10019 July __, 2002 Jarden Corporation 555 Theodore Fremd Avenue Rye, New York 10580 RE: REGISTRATION STATEMENT ON FORM S-4 OF JARDEN CORPORATION Ladies and Gentlemen: We have acted as special counsel to Jarden Corporation, a Delaware corporation formerly known as Alltrista Corporation (the "Company"), and the Subsidiary Guarantors (as defined below) in connection with the preparation of the Registration Statement on Form S-4 (the "Registration Statement") filed on behalf of the Company and the Subsidiary Guarantors with the Securities and Exchange Commission (the "Commission") relating to the Company's offer to exchange $150 million aggregate principal amount of its 9 3/4% Senior Subordinated Notes due 2012 (the "New Notes"), which is being registered under the Securities Act of 1933, as amended (the "Securities Act"), for its outstanding 9 3/4% Senior Subordinated Notes due 2012, which were issued and sold in a transaction exempt from registration under the Securities Act (the "Old Notes"), all as more fully described in the Registration Statement. The New Notes will be issued under the Company's Indenture (the "Indenture") dated as of April 24, 2002 between the Company, the Subsidiary Guarantors and The Bank of New York, as trustee (the "Trustee"). Capitalized terms used herein and not otherwise defined shall have the meanings assigned to such terms in the prospectus (the "Prospectus") contained in the Registration Statement. Alltrista Newco Corporation, Alltrista Plastics Corporation, Alltrista Unimark, Inc., Alltrista Zinc Products, L.P., Caspers Tin Plate Company, Hearthmark, Inc., Lafayette Steel & Aluminum Corporation, LumenX Corporation, Penn Video, Inc., Quoin Corporation, Tilia, Inc., Tilia Direct, Inc., Tilia International, Inc., TriEnda Corporation and Unimark Plastics, Inc. are collectively referred to as the "Subsidiary Guarantors," and the guarantees by the Subsidiary Guarantors with respect to the New Notes are collectively referred to as the "Guarantees." In connection with this opinion letter, we have examined and are familiar with originals or copies, certified or otherwise identified to our satisfaction, of (i) the Registration Statement, in the form filed with the Commission through the date hereof; (ii) the Restated Certificate of Incorporation of the Company, as amended, as currently in effect; (iii) the By-laws of the Company, as currently in effect; (iv) the Indenture; (v) the form of the New Notes; (vi) resolutions of the Board of Directors of the Company and each of the Subsidiary Guarantors relating to, among other things, the issuance and exchange of the New Notes for the Old Notes and the filing of the Registration Statement; and (vii) records of certain of the Company's and Subsidiary Guarantors corporate proceedings as reflected in their respective minute books and other records and documents that we have deemed necessary for purposes of this opinion. We also have examined and relied upon such other documents, corporate records, certificates, instruments and other information, as we have deemed necessary or appropriate as a basis for the opinions set forth below. We have also assumed, with respect to any court of a jurisdiction other than New York that may rule on an issue, the choice of New York law as the proper law to govern the New Notes will be, where applicable, given effect by the courts of any jurisdiction other than New York, and applied by such courts in proceedings relating to the New Notes and the Indenture. In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies, and the authenticity of the originals of such latter documents. As to certain facts material to this opinion, we have relied without independent verification upon oral or written statements and representations of officers and other representatives of the Company and the Subsidiary Guarantors, public officials and others. Based upon and subject to the foregoing and the statements contained herein, we are of the opinion that: 1. The issuance and exchange of the New Notes for the Old Notes has been duly authorized by requisite corporate action on the part of the Company. 2. When (i) the Registration Statement, as finally amended (including all necessary post-effective amendments), shall have become effective under the Securities Act, (ii) the New Notes are duly executed and authenticated in accordance with the provisions of the Indenture, and (iii) the New Notes shall have been issued and delivered in exchange for the Old Notes pursuant to the terms set forth in the Prospectus, the New Notes and the Guarantees will be a valid and binding obligation of the Company and the Subsidiary Guarantors, as the case may be, entitled to the benefits of the Indenture and enforceable against the Company and the Subsidiary Guarantors, as the case may be, in accordance with their terms, except to the extent that the enforceability thereof may be limited by (x) bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws now or hereafter in effect relating to creditors' rights generally and (y) general principles of equity (regardless of whether enforceability is considered in a proceeding at law or in equity). We hereby consent to the use of this opinion as an exhibit to the Registration Statement and to the reference to us under the heading "Legal Matters" in the Prospectus which forms a part thereof. In giving this consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Securities and Exchange Commission promulgated thereunder. We are qualified to practice law in the State of New York and do not purport to be experts on, or to express any opinion herein concerning any law, other than the laws of the State of New York and the General Corporation Law of the State of Delaware. We express no opinion as to the application of the securities or blue sky laws of the various states to the issuance or exchange of the New Notes. We also express no opinion as to (i) whether a federal or state court outside New York would give effect to the choice of New York law provided for in the New Notes and Indenture or (ii) the effect on the matters covered by this opinion letter of the laws of any other jurisdiction. This opinion letter is limited to the specific legal matters expressly set forth herein, and no opinion is expressed or implied with respect to any matter not expressly stated herein. This letter speaks only as of the date hereof and is limited to present statutes, regulations and administrative and judicial interpretations. Very truly yours, KANE KESSLER, P.C. By:____________________________ Robert L. Lawrence Authorized Signatory EX-12.1 44 file043.txt STATEMENT OF COMPUTATION OF RATIO OF EARNINGS EXHIBIT 12.1 Jarden Corporation Computation of Ratio of Earnings to Fixed Charges (in millions)
--------------------------------------------------------------------------------------------- FOR THE THREE MONTHS FOR THE YEAR ENDED DECEMBER 31, ENDED MARCH 31, --------------------------------------------------------------------------------------------- ACTUAL ACTUAL ACTUAL ACTUAL ACTUAL PRO FORMA ACTUAL PRO FORMA 1997 1998 1999 2000 2001 2001 2002 2002 ----------- ---------- ----------- ----------- ----------- ---------- ----------- ----------- Earnings: Net income (loss) $ 14.8 $ 15.7 $ 29.2 $ 4.9 $ (85.4) $ 20.3 $ 7.2 $ 8.6 Plus: Income tax provision (benefit) 10.6 10.8 19.5 2.4 (40.4) 10.9 (4.3) (3.4) Minority interest in gain (loss) of consolidated subsidiary (0.3) 0.2 Extraordinary loss from early extinguishment of debt (net of income taxes) 1.0 Fixed charges 2.7 2.3 9.6 13.3 13.4 22.4 1.5 4.8 ------- ------- ------- ------- ------- ------- ------- ------- Numerator-earnings available for fixed charges $ 28.1 $ 28.8 $ 59.3 $ 20.3 $(112.2) $ 53.6 $ 4.4 $ 10.0 ======= ======= ======= ======= ======= ======= ======= ======= Fixed charges: Interest component of rental expense $ 0.4 $ 0.5 $ 1.2 $ 1.4 $ 1.6 $ 2.4 $ 0.3 $ 0.3 Interest expense 2.3 1.8 8.4 11.9 11.8 20.0 1.2 4.5 ------- ------- ------- ------- ------- ------- ------- ------- Denominator-fixed charges $ 2.7 $ 2.3 $ 9.6 $ 13.3 $ 13.4 $ 22.4 $ 1.5 $ 4.8 ======= ======= ======= ======= ======= ======= ======= ======= ------- ------- ------- ------- ------- ------- ------- ------- Ratio of earnings to fixed charges 10.5 12.4 6.2 1.5 * 2.4 3.0 2.1 ======= ======= ======= ======= ======= ======= ======= =======
* For the actual year ended December 31, 2001, the calculated ratio of earnings to fixed charges is less than one-to-one and represents a deficiency of approximately $125.6 million. EX-23.1 45 file044.txt CONSENT OF ERNST & YOUNG LLP EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" in Amendment No. 1 to the Registration Statement (Form S-4 No. 333-89862) and related Prospectus of Jarden Corporation and Subsidiaries (formerly Alltrista Corporation and Subsidiaries) for the registration of 9 3/4% Senior Subordinated Notes due 2012 and to the incorporation by reference therein of our report dated January 23, 2002 (except for Note 19, as to which the date is March 22, 2002), with respect to the consolidated financial statements and schedule of Alltrista Corporation and Subsidiaries included in its Annual Report (Form 10-K) for the year ended December 31, 2001, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP New York, New York July 17, 2002 -----END PRIVACY-ENHANCED MESSAGE-----