EXHIBIT 10.1
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AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
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This Amended and Restated Stockholders Agreement (this "Agreement") is
made and entered into as of the 6th 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:
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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
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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
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DIRECTOR NOMINATION RIGHTS
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2.1 Nomination of Directors.
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(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
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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,
(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
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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
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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
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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.
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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.
SILGAN HOLDINGS INC.
By: /s/ Xxxxx X. Xxxxx, III
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Name: Xxxxx X. Xxxxx, III
Title: Vice President, General Counsel
and Secretary
/s/ R. Xxxxxx Silver
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R. Xxxxxx Silver
/s/ D. Xxxx Xxxxxxxx
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D. Xxxx Xxxxxxxx
Acknowledged and consented to as of this 6th day of November, 2001
THE XXXXXX XXXXXXX LEVERAGED EQUITY FUND II, L.P.
By: Xxxxxx Xxxxxxx Leveraged Equity Fund II, Inc. (General Partner)
By: /s/ Xxxxx X. Xxxxxxxx
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Name: Xxxxx X. Xxxxxxxx
Title: Vice President
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