EXHIBIT 4.5
AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
-------------------------------------------
This Amended and Restated Stockholders Agreement (this "Agreement") is made
and entered into as of the ___day of November, 2001 by and among R. XXXXXX
SILVER ("Silver"), D. XXXX XXXXXXXX ("Xxxxxxxx") and SILGAN HOLDINGS INC., a
Delaware corporation (the "Company").
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, Silver and Xxxxxxxx are parties to that certain Stockholders
Agreement dated as of February 14, 1997 (the "Principals Stockholders
Agreement"), by and among Silver, Xxxxxxxx and The Xxxxxx Xxxxxxx Leveraged
Equity Fund II, L.P., a Delaware limited partnership ("MS Equity"); and
WHEREAS, the parties hereto, including the Company, with the acknowledgment
and consent of MS Equity, believing it to be in their respective best interests,
desire to amend and restate the Principals Stockholders Agreement by entering
into this Agreement with respect to certain matters involving the Company.
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.
"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, Silver
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 holds less than one-half of the number
of shares of Common Stock held by it in the aggregate on February 14, 1997(as
adjusted, if necessary, to take into account any stock dividend, stock split,
combination of shares, subdivision or recapitalization of the capital stock of
the Company), the Group shall have the right to nominate for election (i) two
(2) individuals as members of the Board of Directors of the
2
Company, and upon such nomination by the Group such nominees shall stand for
election to the Company's Board of Directors in accordance with the Company's
certificate of incorporation; provided, however, that at least one (1) of such
nominees shall be Silver or Xxxxxxxx, and (ii) all other directors of the
Company other than the individuals nominated pursuant to Section 2.1(a)(i) above
and the individual, if any, to be nominated by MS Equity pursuant to the letter
agreement dated of even date herewith between MS Equity and the Company, and
upon such nomination by the Group such additional nominees shall stand for
election to the Company's Board of Directors in accordance with the Company's
certificate of incorporation.
(b) From and after the time that the Group holds less than one-half of the
number of shares of Common Stock held by it on February 14, 1997 (as adjusted,
if necessary, to take into account any stock dividend, stock split, combination
of shares, subdivision or recapitalization of the capital stock of the Company)
and 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, 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.
(c) 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 an individual for any of the
nominees for election to the Company's Board of Directors pursuant to Section
2.1(a) or 2.1(b) above or (ii) at least 45 days prior to any
3
annual meeting of stockholders of the Company, the Group fails to nominate for
election at such meeting the requisite number of individuals 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 number of individuals that Silver and Xxxxxxxx could not
agree on as nominees as contemplated in clause (i) of this paragraph (c) or
that the Group so failed to nominate as contemplated in clause (ii) of this
paragraph (c).
ARTICLE III
MISCELLANEOUS PROVISIONS
3.1 Effectiveness; Term. This Agreement shall become effective only upon
-------------------
the consummation no later than December 31, 2001 of a secondary public offering
of at least 4,100,000 shares of Common Stock owned by MS Equity and shall have
no force or effect until such time. 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.
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
4
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 Principals Stockholders
Agreement. None of the parties to the Principals Stockholders Agreement,
including MS Equity, 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.
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.
5
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.
6
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the date first written above. SILGAN HOLDINGS INC.
By:
-----------------------------------
Name:
Title:
-------------------------------
R. Xxxxxx Silver
---------------------------------
D. Xxxx Xxxxxxxx
Acknowledged and consented to as of this __ day of November, 2001
THE XXXXXX XXXXXXX LEVERAGED EQUITY FUND II, L.P.
By: Xxxxxx Xxxxxxx Leveraged Equity Fund II, Inc. (General Partner)
By:_________________________________
Name:
Title:
7
