SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
Exhibit 10.1
SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This Second Amended and Restated Stockholders Agreement (this "Agreement") is made and entered into as of the 28th day of November, 2022 by and among X. XXXXXX XXXXXX ("Silver"), X. XXXX XXXXXXXX ("Xxxxxxxx") and SILGAN HOLDINGS INC., a Delaware corporation (the "Company").
WHEREAS, Silver, Xxxxxxxx and the Company are parties to that certain Amended and Restated Stockholders Agreement dated as of November 6, 2001 (the "Stockholders Agreement"), which replaced in its entirety that certain stockholders agreement dated as of February 14, 1997 by and among Xxxxxx, Xxxxxxxx and the other parties thereto; and
WHEREAS, the parties to the Stockholders Agreement, believing it to be in their respective best interests, desire to amend and restate the Stockholders Agreement by entering into this Agreement and to replace the Stockholders Agreement in its entirety with this Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby, agree as follows.
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set forth below:
"Affiliate" shall have the meaning ascribed to such term in Rule 12b-2 of the General Rules and Regulations promulgated under the Securities Exchange Act of 1934 as in effect on the date of this Agreement.
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"Common Stock" shall mean shares of the Company's common stock, par value $.01 per share.
"Disability" shall mean the inability of either Silver or Xxxxxxxx to manage his own affairs within the meaning of Section 45a-650(c) under the Connecticut General Statutes (as the same may be amended or replaced by any successor statute from time to time).
"Estate" shall mean any and all assets left by a decedent and any executor, administrator or legal representative charged with the administration of such assets.
"Family Transferees" shall mean the spouse, children or grandchildren of, or any trust for the benefit of the spouse, children or grandchildren of, Xxxxxx or Xxxxxxxx.
"Group" shall mean, collectively, Silver and Xxxxxxxx and their respective Affiliates and related Family Transferees and Estates (Silver and his Affiliates, Family Transferees and Estate deemed to be collectively one member of the Group and Xxxxxxxx and his Affiliates, Family Transferees and Estate deemed to be collectively one member of the Group).
ARTICLE II
DIRECTOR NOMINATION RIGHTS
2.1 Nomination of Directors.
(a) Until such time that the Group beneficially owns less than five percent (5%) of the outstanding Common Stock (determined in accordance with Rule 13d-3 of the General Rules and Regulations promulgated under the Securities Exchange Act of 1934 as in effect on the date of this Agreement), the Group shall have the right to nominate for election a total of one (1) individual as a member of the Board of Directors of the Company (or, if the Board of Directors
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of the Company is classified, a total of one (1) individual as a member of one (1) class of Directors of the Board of Directors of the Company), and upon such nomination by the Group such nominee shall stand for election to the Company's Board of Directors in accordance with the Company's certificate of incorporation; provided, however, that such nominee shall be Silver or Xxxxxxxx.
(b) In the event that (i) either Silver or Xxxxxxxx (not including any of their Affiliates, Family Transferees or Estates) notifies the Board of Directors of the Company that the Group cannot agree on a nominee for election to the Company's Board of Directors pursuant to Section 2.1(a) above or (ii) at least 45 days prior to any annual meeting of stockholders of the Company, the Group fails to nominate for election at such meeting a nominee pursuant to Section 2.1(a) above to stand for election to the Company's Board of Directors at such meeting, then the Board of Directors shall have the right in lieu of the Group to nominate for election to the Company's Board of Directors in accordance with the Company's certificate of incorporation such nominee that Silver and Xxxxxxxx could not agree on as a nominee as contemplated in clause (i) of this paragraph (b) or that the Group so failed to nominate as contemplated in clause (ii) of this paragraph (b).
ARTICLE III
MISCELLANEOUS PROVISIONS
3.1 Effectiveness; Term. This Agreement shall continue in effect until either the death or Disability of both of Silver and Xxxxxxxx, at which time this Agreement shall terminate and be of no further force or effect.
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3.2 Due Authorization; Binding Agreement. Each of the parties to this Agreement represents that this Agreement has been duly authorized, executed and delivered by such party and constitutes the legal, valid and binding obligation of such party enforceable against it in accordance with its terms. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective Estates, heirs, executors, legal representatives, successors and permitted assigns.
3.3 Equitable Relief for Breach of Agreement. Without limiting the remedies available to any of the parties hereto, each of the parties hereto stipulates and agrees that damages at law will be an insufficient remedy in the event that any party violates the terms of this Agreement, and each of the parties hereto further agrees that each of the other parties hereto may apply for and have injunctive or other equitable relief in any court of competent jurisdiction to restrain the breach or threatened breach of, or otherwise specifically to enforce, the terms of this Agreement.
3.4 Actions by the Company. The Company hereby agrees to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary to give effect to the rights of the Group hereunder.
3.5 Entire Agreement; Amendments. This Agreement contains the entire understanding of the parties hereto with respect to the subject matter hereof and supersedes and replaces in its entirety the Stockholders Agreement. None of the parties to the Stockholders Agreement shall have any further rights or obligations thereunder. This Agreement may not be amended, modified or revoked in whole or in part and no provision hereof may be waived, except in all such cases by a written instrument executed by the parties hereto.
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3.6 Waiver. No waivers of any breach or other term or condition of this Agreement extended by any party hereto to any other party shall be construed as a waiver of any rights or remedies with respect to any subsequent breach or with respect to any other term or condition.
3.7 Headings. The headings and subheadings in this Agreement are inserted for convenience of reference only and are not to be considered in construction of the provisions hereof.
3.8 Unenforceable Provisions. The provisions of this Agreement shall be applied and interpreted in a manner consistent with each other so as to carry out the purposes and intent of the parties hereto, but if for any reason any provision hereof is determined to be unenforceable or invalid, such provision or such part thereof as may be unenforceable or invalid shall be deemed automatically amended to the extent necessary to make such provision or such part thereof valid and enforceable, and the remaining provisions shall remain in full force and effect.
3.9 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed an original, but all of which, taken together, shall constitute one and the same agreement.
3.10 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any principles of conflicts of law; provided that any determination of Disability under this Agreement shall be governed by and construed in accordance with the laws of the State of Connecticut.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date first written above.
By: /s/ Xxxxx X. Xxxxx, III
Name: Xxxxx X. Xxxxx, XXX
Title: Senior Vice President, General
Counsel and Secretary
/s/ X. Xxxxxx Xxxxxx
X. Xxxxxx Xxxxxx
/s/ D. Xxxx Xxxxxxxx
X. Xxxx Xxxxxxxx
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