Exhibit 10.44
AMENDED AND RESTATED
MANAGEMENT SERVICES AGREEMENT
This Amended and Restated Management Services Agreement (the "Agreement")
is made as of this ___ day of February, 1997 by and between S&H INC., a
Connecticut corporation ("S&H"), and SILGAN PLASTICS CORPORATION, a Delaware
corporation ("Plastics").
W I T N E S S E T H:
-------------------
WHEREAS, S&H and Plastics have entered into the Amended and Restated
Management Services Agreement dated as of December 21, 1993 (the "Original
Management Services Agreement"), pursuant to which S&H provides general
management, supervision, administrative and other services to Plastics in
accordance with the terms of the Original Management Services Agreement;
WHEREAS, S&H also is a party to an Amended and Restated Management Services
Agreement dated as of December 21, 1993 with each of Silgan Holdings Inc.
("Holdings"), Silgan Corporation, a wholly owned subsidiary of Holdings and the
parent company of Plastics ("Silgan"), and Silgan Containers Corporation, a
wholly owned subsidiary of Silgan ("Containers");
WHEREAS, S&H and each of Holdings, Silgan and Containers are entering into
an amended and restated management services agreement dated as of the date
hereof (collectively, as so amended and restated, the "Affiliate Management
Services Agreements"); and
WHEREAS, in contemplation of the consummation of an initial public offering
of the common stock of Holdings pursuant to an effective registration statement
under the Securities Act of 1933, as amended, S&H and Plastics desire to amend
and restate hereby the Original Management Services Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
contained herein, S&H and Plastics agree as follows:
1. Management Services.
-------------------
(a) S&H and Plastics hereby agree that, during the period beginning on
the date hereof and continuing throughout the term hereof, S&H and its
Affiliates shall provide to Plastics general management, supervision and
administrative services, including, without limitation, the preparation of the
annual and long-term business plans, and perform such other duties and provide
such other services as Plastics shall be permitted to request of S&H pursuant to
the Certificate of Incorporation or By-Laws of Holdings or pursuant to
applicable law, which power and authority Plastics hereby grants to S&H
("General Management Services"). (The General Management Services are
hereinafter collectively referred to as the "Services" and individually as a
"Service").
(b) Any Service hereunder shall be provided to Plastics only by S&H or
its Affiliates or such consultants, subcontractors or agents as may be selected
from time to time by S&H to assist S&H in its provision of the Services. It is
understood and agreed that S&H may retain the services of Xxxxxx
-2-
Xxxxxxx & Co. Incorporated or another suitable investment bank as financial
advisor to Plastics or as an underwriter or placement agent for offerings of
securities by Plastics.
2. Fees; Payment.
-------------
(a) In consideration for General Management Services provided by S&H
to Plastics hereunder, Plastics shall pay to S&H aggregate fees or compensation
therefor (not including any related out-of-pocket expenses), (i) on a monthly
basis, an amount equal to Plastics' Proportionate Percentage (as defined below)
of five thousand dollars ($5,000) plus 2.475% of EBDIT (as defined in Paragraph
2(i) hereof) for such calendar month until EBDIT for the calendar year to date
has reached the Scheduled Amount (as defined in Paragraph 2(d) hereof) for such
calendar year, and 1.65% of EBDIT for such calendar month to the extent that
EBDIT for the calendar year to date exceeds the Scheduled Amount but is not
greater than the Maximum Amount (as defined in Paragraph 2(d) hereof) (the
"Monthly Management Fee"); and (ii) on a quarterly basis, an amount equal to
Plastics Proportionate Percentage of 2.475% of EBDIT for such calendar quarter
until EBDIT for the calendar year to date has reached the Scheduled Amount, and
l.65% of EBDIT for such calendar quarter to the extent that EBDIT for the
calendar year to date exceeds the Scheduled Amount but is not greater than the
Maximum Amount (the "Quarterly Management Fee"). For purposes of this Section
2, "Proportionate Percentage" means such percentage of EBDIT for a given period
that is attributable to the results of Plastics for such period.
-3-
(b) Such Quarterly Management Fee shall continue to accrue, but shall
not be paid, to S&H by Plastics in the event that, and from the date on which,
Plastics or Silgan shall have received written notice ("Notice") from the Agent
(as defined below) that an Event of Default (as such term is defined in the
Credit Agreement, dated as of August 1, 1995, among Silgan, Containers,
Plastics, the lenders from time to time party thereto, Bankers Trust Company, as
Administrative Agent and as a Co-Arranger (the "Agent"), and Bank of America
Illinois, as Documentation Agent and as a Co-Arranger, as in effect from time to
time, and any refinancings, renewals, amendments or extensions thereof (the
"Credit Agreement")) exists under any of Sections 9.01, 9.03 (but only to the
extent resulting from the violation of one or more of Sections 8.08, 8.09, 8.10,
and 8.11 of the Credit Agreement), 9.04(i)(x), 9.04(ii) or 9.05 of the Credit
Agreement (each of the foregoing Events of Default, a "Financial Covenant Event
of Default") until, and shall be paid by Plastics to S&H on, the earliest to
occur of (x) the first date after receipt of such Notice upon which no Financial
Covenant Event of Default to which the Notice related or otherwise known to S&H
or Plastics shall be in existence (and so long as no such Financial Covenant
Event of Default would be in existence after giving effect to the payment of
such unpaid portion of the Quarterly Management Fee), (y) the first date
occurring 180 days or more after receipt by Silgan of a written notice from the
Agent stating that no Event of Default exists under Section 9.01 of the Credit
Agreement, or (z) the date that Silgan, Containers,
-4-
Plastics, California-Washington Can Corporation, a wholly owned subsidiary of
Containers, and SCCW Can Corporation, a wholly owned subsidiary of Containers,
shall have paid all outstanding Obligations (as such term is defined under the
Credit Agreement). In the event that a Notice is delivered by the Agent,
Plastics shall pay to S&H that portion of any unpaid Quarterly Management Fee
that has accrued with respect to that portion of such calendar quarter prior to
the occurrence of any Financial Covenant Event of Default to which such Notice
relates.
(c) Nothing contained in Paragraph 2(b) shall prevent the Agent from
giving successive Notices of the type described in Paragraph 2(b) (in which case
the rules set forth in Paragraph 2(b) shall apply to, and the time periods set
forth therein shall begin to run on, the date of such subsequent Notice);
provided that only one Notice relating to a single Financial Covenant Event of
--------
Default and all other Financial Covenant Events of Default in existence at the
date of the giving of any such Notice may be given. Notwithstanding anything to
the contrary stated herein, if at any time after the giving of Notice by the
Agent to Silgan, S&H shall certify in writing to Silgan that all Financial
Covenant Events of Default to which such Notice relates have been cured or
waived, and that S&H knows of no other Financial Covenant Event of Default then
in existence, then Plastics shall, unless it knows of the existence of a
Financial Covenant Event of Default which has not yet been cured or waived, pay
to S&H any accrued and unpaid Quarterly Management Fee or portion thereof in the
manner set forth in Paragraph 2(g)
-5-
hereof unless a Financial Covenant Event of Default would result from such
payment. S&H shall not be required to deliver any such certification to Silgan
upon the occurrence of the dates or events set forth in clauses (y) or (z) of
Paragraph 2(b), and promptly after the occurrence of such date or event,
Plastics will pay to S&H any accrued and unpaid Quarterly Management Fee or
portion thereof.
(d) For any given calendar year during the term of this Agreement,
the Scheduled Amount and the Maximum Amount for such calendar year will be the
amounts set forth in Schedule I hereto.
(e) In addition to the Monthly Management Fee and the Quarterly
Management Fee, Plastics shall also reimburse S&H in an amount equal to all out-
of-pocket expenses paid by S&H in providing the Services hereunder, including
fees and expenses paid to consultants, subcontractors and other third parties,
in connection with such Services. Such expenses shall be payable by Plastics to
S&H monthly in arrears.
(f) (i) Not later than fifteen (15) days after the end of each
calendar month during the term hereof with respect to the Monthly Management Fee
and (ii) not later than thirty (30) days after the end of each full calendar
quarter during the term hereof with respect to the Quarterly Management Fee, S&H
shall furnish Plastics with a xxxx for an amount equal to the Monthly Management
Fee and the Quarterly Management Fee, respectively, then owing with respect to
periods ended on or before the end of such calendar month or such calendar
quarter.
-6-
(g) Each xxxx furnished to Plastics hereunder shall be paid in full
within thirty (30) days of the receipt of such xxxx, except that any accrued and
unpaid Quarterly Management Fee or portion thereof shall be paid on the earliest
date on which such payment is permitted to be made pursuant to Paragraphs 2(a),
2(b) and 2(c) hereof. All payments of such bills shall be sent to:
S&H Inc.
0 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: R. Xxxxxx Silver
or to such other address as S&H may specify from time to time by written notice
to Plastics.
(h) All fees and expenses paid to S&H by Holdings and Silgan pursuant
to their respective Affiliate Management Services Agreements with S&H, shall be
credited to the Monthly Management Fee, the Quarterly Management Fee and the
expenses referred to in Paragraphs 2(a) and 2(e) hereof.
(i) For purposes of this Section 2, EBDIT shall mean, for any period,
the consolidated net income of Holdings and its subsidiaries, before interest
expense and provision for income taxes and without giving effect to any
extraordinary non-cash gains or extraordinary non-cash losses and any
adjustments resulting from changes in the value of employee stock options and/or
stock appreciation rights, and adjusted by adding thereto (i) the amount of any
fees and expenses paid pursuant to this Agreement or the Affiliate Management
Services Agreements, (ii) the amount of all charges and expenses incurred in
-7-
connection with any refinancing, restructuring, recapitalization or
reorganization involving Holdings and its subsidiaries (which charges and
expenses have been charged against the consolidated net income of Holdings or
its subsidiaries), and (iii) the amount of all amortization of intangibles,
covenants not to compete, goodwill and debt financing costs and all depreciation
(which amortization and depreciation have been charged against the consolidated
net income of Holdings and its subsidiaries, before interest expense), computed
in accordance with generally accepted accounting principles.
3. Direct Expenses.
---------------
It is understood that the consideration to be paid by Plastics to S&H
for Services hereunder shall not be in lieu of, and that Plastics shall be
directly liable for, direct expenses incurred by Plastics, or by S&H on
Plastics' behalf (other than the out-of-pocket expenses billed to Plastics by
S&H pursuant to Paragraph 2(e) hereof), for services rendered to Plastics by
third parties, including, but not limited to, legal and accounting fees and
insurance premiums. Plastics shall pay any compensation (including employee
benefit costs and any related out-of-pocket expenses) to officers and other
employees of Plastics who provide substantially full-time services to Plastics,
other than Messrs. R. Xxxxxx Silver ("Silver"), D. Xxxx Xxxxxxxx ("Xxxxxxxx"),
Xxxxxx Xxxxxx, Xx. ("Xxxxxx") and Xxxxxx X. Xxxxxxxxx, Xx. ("Xxxxxxxxx") who
shall receive no salaries (it being understood, however, that Plastics shall
reimburse S&H in respect of compensation paid by S&H to Messrs. Xxxxxx and
-8-
Xxxxxxxxx consistent with the reimbursement therefor by Plastics to S&H in
1996), notwithstanding that said officers and other employees may simultaneously
be officers or employees of S&H or one of its subsidiaries or Affiliates.
4. Term.
----
(a) The term of this Agreement shall commence on the date hereof and
shall continue until June 30, 1999. Thereafter, the term of this Agreement
shall be automatically renewed for successive one-year terms unless prior to the
date that is 180 days prior to the expiration of the initial term or the then
current one-year term, as the case may be, either party shall have given the
other party written notice of its election not to renew the term of this
Agreement (it being understood that the determination by Plastics whether to
give such written notice of its election not to renew the term of this Agreement
will be made by the independent members of the Board of Directors of Holdings).
For purposes hereof, the independent members of the Board of Directors of
Holdings shall not include any employee or affiliate of S&H, any officer of
Holdings or any member of the Board of Directors that is affiliated with any
entity that is receiving or is entitled to receive any payment from Holdings
under this Agreement or any payment from S&H in connection with this Agreement.
The term of this Agreement may be terminated prior to the expiration of the
initial term or the then current one-year term, as the case may be, by written
notice to the other party as follows: (i) by Plastics for Cause, (ii) by S&H for
Cause, (iii) by Plastics for any reason other than Cause, upon at
-9-
least 180 days prior written notice, (iv) by S&H for any reason other than (A)
Cause or (B) because of a Change of Control, upon at least 180 days prior
written notice, or (v) by S&H at any time after a Change of Control.
(b) Upon termination of any Affiliate Management Services Agreement
by the party thereto other than S&H for any reason other than "Cause" as defined
in such Affiliate Management Services Agreement, this Agreement shall be deemed
to have been terminated by Plastics pursuant to clause (iii) of the last
sentence of Section 4(a) hereof, effective as of the date of termination of such
Affiliate Management Services Agreement. Upon termination by S&H of any
Affiliate Management Services Agreement for any reason other than "Cause" or
because of a "Change of Control," each as defined in such Affiliate Management
Services Agreement, this Agreement shall be deemed to have been terminated by
S&H pursuant to clause (iv) of the last sentence of Section 4(a) hereof,
effective as of the date of termination of such Affiliate Management Services
Agreement.
(c) For purposes of this Section 4, a "Change of Control" shall be
deemed to have occurred when a majority of the Board of Directors of Holdings
shall not consist of "Continuing Holdings Directors," which shall mean (i) the
directors of Holdings on the date hereof and (ii) each other director of
Holdings who is either recommended, approved or nominated for election, or is
elected, to the Board of Directors of Holdings by a majority of the other
Continuing Holdings Directors.
-10-
5. Events of Default.
-----------------
Any one of the following defaults shall constitute an Event of Default
(other than by reason of an Event of Force Majeure in the case of each of
Paragraphs 5(a)-(f)):
(a) (i) The failure or refusal of S&H to comply with or perform its
obligations under this Agreement if such failure or refusal continues unremedied
for more than 60 days after written notice of the existence of such failure or
refusal shall have been given to S&H by Plastics or (ii) the failure or refusal
of Plastics to comply with or perform its obligations under this Agreement if
such failure or refusal continues unremedied for more than 60 days after written
notice of the existence of such failure or refusal shall have been given to
Plastics by S&H;
(b) S&H or Holdings is declared insolvent or bankrupt by any court of
competent jurisdiction, or a voluntary petition in bankruptcy is filed in any
court of competent jurisdiction by either of them;
(c) An involuntary petition in bankruptcy is filed in any court of
competent jurisdiction against S&H or Holdings and within forty-five (45) days
thereafter shall not have been dismissed or stayed (and, in the event of any
such stay, such stay shall not have been set aside and the petition dismissed
within forty-five (45) days after the stay shall have been granted);
-11-
(d) A trustee or receiver is appointed for S&H or Holdings and remains
undischarged for more than forty-five (45) days after being appointed;
(e) A proceeding seeking a reorganization, arrangement, liquidation or
dissolution of S&H or Holdings is instituted in a court of competent
jurisdiction and remains undismissed for more than forty-five (45) days after
being instituted;
(f) S&H or Holdings voluntarily seeks any such reorganization or
arrangement or makes an assignment for the benefit of creditors; or
(g) Death or permanent disability of both Xxxxxxxx and Silver. For
the purposes of this Agreement, "permanent disability" shall mean the inability
of Xxxxxxxx or Silver, as the case may be, by reason of illness or injury to
perform substantially all of his duties as Chairman of the Board or as President
of Holdings (or in performing his duties in any other office in Holdings or any
of its respective Affiliates to which he may be duly appointed) during any
continuous period of one hundred eighty (180) days.
6. Cause.
-----
(a) The occurrence of any of the following shall constitute "Cause"
for purposes of clause (i) of the last sentence of Section 4(a) of this
Agreement:
(i) An Event of Default, except for the Event of Default described in
Section 5(a)(ii) of this Agreement; or
-12-
(ii) Criminal conduct or gross negligence by S&H in the performance
of the Services; or
(iii) The termination of any Affiliate Management Services Agreement
by Holdings, Silgan, or Containers, as the case may be, for "Cause" as
defined therein.
(b) The occurrence of either of the following shall constitute
"Cause" for purposes of clause (ii) of the last sentence of Section 4(a) of this
Agreement:
(i) An Event of Default, except for the Event of Default described
in Section 5(a)(i) of this Agreement; or
(ii) The termination of any Affiliate Management Services Agreement
by S&H for "Cause" as defined therein.
7. Remedies. (a) In the event this Agreement is terminated (or deemed
--------
terminated) by Plastics prior to June 30, 1999 for any reason other than for
Cause, Plastics shall be required to pay to S&H as liquidated damages, within
thirty (30) days of such termination, the present value of the sum of (i) the
Monthly Management Fee (or any portion thereof) that would have been payable by
Plastics to S&H for each month (or any portion thereof) from the date of such
termination through June 30, 1999 and (ii) the Quarterly Management Fee (or any
portion thereof) that would have been payable by Plastics to S&H for each
quarter (or portion thereof) from the date of such termination through June 30,
1999, in each case calculated based on a discount rate of eight percent (8%) per
annum.
-13-
(b) In the event this Agreement is terminated by Plastics after June
30, 1999, for any reason other than for Cause, Plastics shall be required to pay
to S&H as liquidated damages, within thirty (30) days of such termination, the
present value of the sum of (i) the Monthly Management Fee (or any portion
thereof) payable by Plastics to S&H for each month (or any portion thereof) from
the date of such termination through the end of the then current one-year term
and (ii) the Quarterly Management Fee (or any portion thereof) payable by
Plastics to S&H for each quarter (or portion thereof) from the date of such
termination through the end of the then current one-year term, in each case
calculated based on a discount rate of eight percent (8%) per annum.
(c) The amounts described in clauses (i) and (ii) of Sections 7(a)
and 7(b) shall be calculated based upon the projections of Holdings' EBDIT for
the period from the date of such termination through June 30, 1999 or through
the end of the then current one-year term, as the case may be, which projections
are (1) included in Holdings' most recently prepared forecast statements
required under the Credit Agreement or (2) if the Credit Agreement is not in
existence, included in Holdings' most recently prepared forecast statements
presented to its Board of Directors (provided such forecast statements are
prepared on a basis consistent with the requirements under the Credit Agreement
that was in effect last).
-14-
8. Force Majeure.
-------------
The term "Event of Force Majeure" as used herein shall mean any
failure of a party to perform any of its obligations hereunder if such failure
is due to circumstances beyond its control, including but not limited to, any
requisition by any government authority, act of war, strike, boycott, lockout,
picketing, riot, sabotage, civil commotion, insurrection, epidemic, disease, act
of God, fire, flood, accident, explosion, earthquake, storm, failure of public
utilities or common carriers, mechanical failure, embargo, or prohibition
imposed by any governmental body or agency having authority over the party,
which would have constituted an Event of Default but for the fact that such
events constituted an Event of Force Majeure. The party affected by an Event of
Force Majeure shall give prompt notice thereof to the other parties hereto and
each party shall use its best efforts to minimize the duration and consequences
of, and to eliminate, any such Event of Force Majeure. At such time as an Event
of Force Majeure no longer exists, the respective obligations of the parties
hereto shall be reinstated and this Agreement shall continue in full force and
effect.
9. Insurance.
---------
S&H agrees that for the term of this Agreement it shall cause Plastics
to obtain and maintain insurance for such risks and in such amounts similar to
companies of comparable size which are engaged in similar business activities,
provided that S&H shall be deemed to be in compliance with the provisions of
--------
this paragraph if Plastics maintains a level of insurance which
-15-
complies with the applicable terms of the Credit Agreement.
10. Indemnification.
---------------
(a) Plastics shall indemnify to the fullest extent permitted by
law (as now or hereafter in effect) S&H and each of its Affiliates, officers,
directors, employees, consultants and subcontractors, and any Person controlling
S&H and each of its Affiliates or any such consultant or subcontractor (each, an
"S&H Indemnitee," and collectively, the "S&H Indemnitees") to the extent that
any S&H Indemnitee is made, or threatened to be made, a defendant to, or is
involved in any manner in, any action, suit or proceeding (whether civil,
criminal, administrative, investigative or otherwise) by reason of the fact that
such S&H Indemnitee is or was an agent of Plastics.
(b) In furtherance and not in limitation of the powers conferred
by statute:
(i) Plastics may purchase and maintain insurance on
behalf of any S&H Indemnitee as an agent of Plastics against any liability
asserted against any S&H Indemnitee and incurred by any S&H Indemnitee in
such capacity, or arising out of any S&H Indemnitee's status as such,
whether or not Plastics would have the power to indemnify such S&H
Indemnitee against such liability under the provisions of law; and
(ii) Plastics may create a trust fund, grant a security
interest and/or use other means (including, without limitation, letters of
credit, surety bonds and/or
-16-
other similar arrangements), as well as enter into contracts providing
indemnification to the full extent authorized or permitted by law and
including as part thereof provisions with respect to any or all of the
foregoing to ensure the payment of such amounts as may become necessary to
effect indemnification as provided therein, or elsewhere.
(c) The manner of any indemnification under this Agreement shall
be in accordance with Section 2.8 of the Stockholders Agreement dated as of
December 21, 1993 among Silver, Xxxxxxxx, The Xxxxxx Xxxxxxx Leveraged Equity
Fund II, L.P., Bankers Trust New York Corporation, First Plaza Group Trust and
Holdings (as amended from time to time, the "Stockholders Agreement").
11. Noncompetition.
--------------
(a) During the term of this Agreement, S&H hereby agrees that it
will not, directly or indirectly, own, render services to, manage, operate,
control, or participate in the ownership, management, operation or control of a
business that is engaged in any "Business". For purposes hereof, the term
"Business" shall mean the manufacture and sale anywhere in the world of consumer
goods packaging products.
(b) In the event that this Agreement is terminated by S&H
pursuant to clause (iv) of the last sentence of Section 4(a) hereof, S&H hereby
agrees that, for a period of one year beginning on the date of such termination,
it will not, directly or indirectly: (i) own, render services to, manage,
operate, control, or participate in the ownership, management,
-17-
operation or control of a business that is engaged in any Business; (ii)
interfere with any customer or supplier relationship between Holdings and/or its
subsidiaries and any other person or business entity; or (iii) disclose or use
any confidential or proprietary information relating to Holdings and its
subsidiaries' businesses, except for any information already in the public
domain through no act of S&H and except as may be required by law or
governmental or court order.
(c) Notwithstanding anything herein to the contrary, nothing
herein, however, shall restrict S&H from making any investments in any company
whose stock is listed on a national securities exchange or actively traded in
the over-the-counter markets, so long as such investment does not give S&H the
right to control or influence the policy decisions of any such company engaged
in any Business.
(d) If any particular provision or portion of this Section 11
shall be adjudicated to be invalid or unenforceable, this Section 11 shall be
deemed amended to delete therefrom such provision or portion adjudicated to be
invalid or unenforceable, and such amendment will apply only with respect to the
operation of such provision or portion in the particular jurisdiction in which
such adjudication was sought.
(e) The parties recognize that the performance of the
obligations under this Section 11 by S&H is special, unique and extraordinary in
character, and that in the event of a breach, or threatened breach, of any of
the terms and conditions of this Section 11, Plastics shall be entitled, if it
so elects,
-18-
in addition to any other remedies available to Plastics, to enforce the specific
performance thereof or to enjoin any breach thereof.
12. Notices.
-------
All notices and other communications required by or specifically
provided for in this Agreement shall be in writing and shall be deemed to have
been given (a) when delivered in person, (b) when sent by telex or telecopier
with answerback received, or (c) seventy-two (72) hours after having been
deposited in the U.S. mails, certified mail with return receipt requested and
postage prepaid, and in any case addressed to the party for which it is intended
at that party's address as set forth below, or at such other address as the
addressee shall have designated by notice hereunder to the other party.
If to S&H:
S&H Inc.
0 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: R. Xxxxxx Silver
If to Plastics:
Silgan Plastics Corporation
0 Xxxxxxxx Xxxxxx
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: R. Xxxxxx Silver
If a notice is sent to any of the above, a copy shall
be sent to the following:
Winthrop, Stimson, Xxxxxx & Xxxxxxx
Financial Centre
000 Xxxx Xxxx Xxxxxx
X.X. Xxx 0000
Xxxxxxxx, XX 00000-0000
Attention: Xxxxx X. Xxxxx, III, Esq.
-19-
Any notice or request sent by telecopier or similar facsimile telecommunication
shall be confirmed promptly by the sending of a copy of such notice or request
to the addressee thereof by prepaid certified mail, return receipt requested.
13. Definitions.
-----------
Terms not defined herein which are defined in the Stockholders
Agreement shall have the meanings ascribed to them therein.
14. Amendment; Assignment; Binding Effect.
-------------------------------------
This Agreement may be amended or modified only by a written instrument
signed by the parties hereto. No party shall assign or transfer this Agreement,
in whole or in part, or any of such party's rights or obligations hereunder, to
any other person or entity without the prior written consent of the other party
hereto, except that S&H may transfer or assign all of its rights and obligations
hereunder to any entity directly or indirectly succeeding to S&H by merger,
consolidation or reorganization. This Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective permitted assigns.
15. Waiver; Severability.
--------------------
The failure of a party to insist in any instance upon the strict and
punctual performance of any provision of this Agreement shall not constitute a
continuing waiver of such provision. No party shall be deemed to have waived
any right, power, or privilege under this Agreement or any provisions hereof
unless such waiver shall have been in writing and duly executed by the party to
be charged with such waiver, and such waiver
-20-
shall be a waiver only with respect to the specific instance involved and shall
in no way impair the rights of the waiving party or the obligations of any other
party in any other respect or at any other time. If any provision of this
Agreement shall be waived, or be invalid, illegal or unenforceable, the
remaining provisions of this Agreement shall be unaffected thereby and shall
remain binding and in full force and effect.
16. Relationship of the Parties.
---------------------------
In all matters relating to this Agreement, each party hereto shall be
solely responsible for the acts of its employees, and employees of one party
shall not be considered employees of the other party. Except as otherwise
provided herein, no party shall have any right, or authority to create any
obligation, express or implied, on behalf of any other party.
17. Governing Law.
-------------
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York without giving effect to its conflict of laws
rules and laws.
18. Entire Agreement; Termination of Original Management Services
-------------------------------------------------------------
Agreement.
---------
This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof, and supersedes all prior
agreements and understandings, either oral or written, with respect thereto.
Upon the execution and delivery of this Agreement, the Original Management
Services Agreement shall be terminated and shall be of no effect whatsoever.
-21-
IN WITNESS WHEREOF, the parties hereto have executed this Agreement
as of the date first above written.
S&H INC.
By:
----------------------------------
Title:
SILGAN PLASTICS CORPORATION
By:
----------------------------------
Title:
-22-
SCHEDULE I
(000's Omitted)
Scheduled Amount/1/ Maximum Amount/1/
--------------------- -----------------
1997 $ 89,500 1997 $100,504
1998 95,500 1998 102,964
1999 101,500 1999 105,488
2000 108,653 2000 108,653
------------------------
/1/ For each calendar year after 2000, the Scheduled Amount for such calendar
year shall be an amount equal to the Maximum Amount for such calendar year. For
each calendar year after 2000, the Maximum Amount for such calendar year shall
be equal to one hundred and three percent (103%) of the Maximum Amount for the
prior calendar year.
