EXHIBIT 10.40
SILGAN HOLDINGS INC.
Common Stock
par value $.01 per share
Underwriting Agreement
February 13, 1997
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated,
Salomon Brothers Inc,
As representatives of the several Underwriters
named in Schedule I hereto,
c/o Goldman, ▇▇▇▇▇ & Co.,
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Silgan Holdings Inc., a Delaware corporation (the "Company"), proposes,
subject to the terms and conditions stated herein, to issue and sell to the
Underwriters named in Schedule I hereto (the "Underwriters") an aggregate of
3,700,000 shares of Common Stock, par value $.01 per share ("Stock"), of the
Company and the stockholders of the Company named in Schedule II hereto (the
"Selling Stockholders") propose, subject to the terms and conditions stated
herein, to sell to the Underwriters an aggregate of 800,000 shares of Stock and
at the election of the Underwriters, up to 675,000 additional shares of Stock.
The aggregate of shares to be sold by the Company and the Selling Stockholders
is herein called the "Firm Shares" and the aggregate of 675,000 additional
shares to be sold by the Selling Stockholders is herein called the "Optional
Shares". The Firm Shares and the Optional Shares that the Underwriters elect to
purchase pursuant to Section 2 hereof being collectively called the "Shares".
Silgan Corporation ("Silgan"), Silgan Containers Corporation ("Containers") and
Silgan Plastics Corporation ("Plastics"), each a Delaware corporation, and the
Company are each referred to as a "Member of the Silgan Group."
1. (a) Each Member of the Silgan Group represents and
warrants to, and agrees with, each of the Underwriters that:
(i) A registration statement on Form S-2 (File No.
333-11989) (the "Initial Registration Statement") in respect
of the Shares has been filed with the Securities and Exchange
Commission (the "Commission"); the Initial Registration
Statement and any post-effective amendment thereto, each in
the form heretofore delivered to you, and, excluding exhibits
thereto but including all documents incorporated by reference
in the prospectus contained therein, to you for each of the
other Underwriters, have been declared effective by the
Commission in such form; other than a registration statement,
if any, increasing the size of the offering (a "Rule 462(b)
Registration Statement"), filed pursuant to Rule 462(b) under
the Securities Act of 1933, as amended (the "Act"), which
became effective upon filing, no other document with respect
to the Initial Registration Statement or any document
incorporated by reference therein has heretofore been filed
with the Commission; and no stop order suspending the
effectiveness of the Initial Registration Statement, any
post-effective amendment thereto or the Rule 462(b)
Registration Statement, if any, has been issued and no
proceeding for that purpose has been initiated or threatened
by the Commission (any preliminary prospectus included in the
Initial Registration Statement or filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the
Commission under the Act, is hereinafter called a "Preliminary
Prospectus"; the various parts of the Initial Registration
Statement and the Rule 462(b) Registration Statement, if any,
including all exhibits thereto and including (i) the
information contained in the form of final prospectus filed
with the Commission pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act in accordance with
Section 6(a) hereof and deemed by virtue of Rule 430A of the
rules and regulations of the Commission under the Act to be
part of the Initial Registration Statement at the time it was
declared effective or such part of the Rule 462(b)
Registration Statement, if any, at the time it became or
hereafter becomes effective and (ii) the documents
incorporated by reference in the prospectus contained in the
registration statement at the time such part of the
registration statement became effective, each as amended at
the time such part of the registration statement became
effective, is hereinafter collectively called the
"Registration Statement"; such final prospectus, in the form
first filed pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act, is hereinafter
called the "Prospectus"; and any reference herein to any
Preliminary Prospectus or the Prospectus shall be deemed to
refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-2 under the Act, as of
the date of such Preliminary Prospectus or Prospectus, as the
case may be);
(ii) No order preventing or suspending the use of any
Preliminary Prospectus has been issued by the Commission, and
each Preliminary Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the
Act and the rules and regulations of the Commission
thereunder, and did not contain an untrue statement of a
material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and
warranty shall not apply to any statements or omissions made
in reliance upon and in conformity with information furnished
in writing to the Company by an Underwriter through ▇▇▇▇▇▇▇,
Sachs & Co. expressly for use therein or by a Selling
Stockholder expressly for use in the preparation of the
answers therein to Item 7 of Form S-2;
(iii) The documents incorporated by reference in the
Prospectus, when they were filed with the Commission,
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conformed in all materials respects to the requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations of the Commission
thereunder, and none of such documents when filed with the
Commission contained an untrue statement of a material fact or
omitted to state a material fact required to be stated therein
or necessary to make the statements therein not misleading;
(iv) The Registration Statement conforms, and the
Prospectus and any further amendments or supplements to the
Registration Statement or the Prospectus will conform, in all
material respects to the requirements of the Act and the rules
and regulations of the Commission thereunder and do not and
will not, as of the applicable effective date as to the
Registration Statement and any amendment thereto, and as of
the applicable filing date as to the Prospectus and any
amendment or supplement thereto, contain an untrue statement
of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements
therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements
or omissions made in reliance upon and in conformity with
information furnished in writing to the Company by an
Underwriter through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use
therein or by a Selling Stockholder expressly for use in the
preparation of the answers therein to Item 7 of Form S-2;
(v) Neither the Company nor any of its subsidiaries
has sustained since the date of the latest audited financial
statements included or incorporated by reference in the
Prospectus any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not
covered by insurance, or from any labor dispute or court or
governmental action, order or decree, otherwise than as set
forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the
Registration Statement and the Prospectus, there has not been
any change in the capital stock or long-term debt of the
Company or any of its subsidiaries or any material adverse
change, or any development involving a prospective material
adverse change, in or affecting the business, management,
financial position, stockholders' equity (deficiency) or
results of operations of the Company and its subsidiaries,
otherwise than as set forth or contemplated in the Prospectus;
(vi) The Company and its subsidiaries have good and
marketable title in fee simple to all real property and good
and marketable title to all personal property owned by them,
in each case free and clear of all liens, encumbrances and
defects except such as are described in the Prospectus or such
as do not materially affect the value of such property and do
not interfere with the use made and proposed to be made of
such property by the Company and its subsidiaries; and any
real property and buildings held under lease by the Company
and its subsidiaries are held by them under valid, subsisting
and enforceable leases with such exceptions as are not
material and do not interfere with the use made and proposed
to be made of such property and buildings by the Company and
its subsidiaries;
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(vii) Each of the Company and its subsidiaries has
all necessary consents, authorizations, approval, orders,
certificates and permits of and from, and has made all
declarations and filings with, all federal, state, local and
other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own,
lease, license and use its properties and assets and to
conduct its business in the manner described in the
Prospectus, except to the extent where the failure to obtain
any such consent, authorization, approval, order, certificate
or permit or make any such declaration or filing would not
have a material adverse effect on the Company and its
subsidiaries;
(viii) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with power and authority
(corporate and other) to own its properties and conduct its
business as described in the Prospectus, and has been duly
qualified as a foreign corporation for the transaction of
business in and is in good standing under the laws of each
other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification,
except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on
the Company and its subsidiaries; and each subsidiary of the
Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of its
jurisdiction of incorporation, has the power and authority
(corporate and other) to own its property and to conduct its
business as described in the Prospectus and is duly qualified
to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification,
except to the extent that the failure to be so qualified or be
in good standing would not have a material adverse effect on
the Company and its subsidiaries;
(ix) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of
capital stock of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and
conform to the description thereof contained in the
Prospectus; and all of the issued shares of capital stock of
each subsidiary of the Company have been duly and validly
authorized and issued, are fully paid and non-assessable and
are owned directly or indirectly by the Company, free and
clear of all liens, encumbrances, equities or claims other
than such pledges of such capital stock existing on the date
hereof made in connection with the Credit Agreement, dated as
of August 1, 1995, among Silgan, Containers, Plastics and the
banks parties thereto;
(x) The Shares to be issued and sold by the Company
to the Underwriters hereunder have been duly and validly
authorized and, when issued delivered against payment therefor
as provided herein, will be duly and validly issued, fully
paid and non-assessable and will conform to the description of
the Stock contained in the Prospectus;
(xi) The issue and sale of the Shares to be sold by
the Company and the compliance by the Company with all of the
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provisions of this Agreement and the consummation of the
transactions herein contemplated will not conflict with or
result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument to which the Company or any of its subsidiaries is
a party or by which the Company or any of its subsidiaries is
bound or to which any of the property or assets of the Company
or any of its subsidiaries is subject, nor will such action
result in any violation of the provisions of the Certificate
of Incorporation or By-laws of the Company or any statute or
any order, rule or regulation of any court or governmental
agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their properties; and no consent,
approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is
required for the issue and sale of the Shares to be sold by
the Company or the consummation by the Company of the
transactions contemplated by this Agreement, except the
registration under the Act of the Shares and such consents,
approvals, authorizations, registrations or qualifications as
may be required under state securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by
the Underwriters;
(xii) Neither the Company nor any of its subsidiaries
is in violation of its Certificate of Incorporation or By-laws
or in default in the performance or observance of any
obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, loan agreement, lease or
other agreement or instrument to which it is a party or by
which it or any of its properties or assets may be bound,
except for such defaults as do not and will not have a
material adverse effect on the Company and its subsidiaries;
(xiii) The statements set forth in the Prospectus
under the caption "Description of Capital Stock", insofar as
they purport to constitute a summary of the terms of the Stock
and under the caption "Underwriting", insofar as they purport
to describe the provisions of the laws and documents referred
to therein, are accurate, complete and fair;
(xiv) Other than as set forth in the Prospectus,
there are no legal or governmental proceedings pending to
which the Company or any of its subsidiaries is a party or of
which any property of the Company or any of its subsidiaries
is the subject which, if determined adversely to the Company
or any of its subsidiaries, would individually or in the
aggregate have a material adverse effect on the current or
future consolidated financial position, stockholders' equity
or results of operations of the Company and its subsidiaries;
and, to the best of the Company's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(xv) The Company is not and, after giving effect to
the offering and sale of the Shares, will not be an
"investment company" or an entity "controlled" by an
"investment company", as such terms are defined in the
Investment Company Act of 1940, as amended (the "Investment
Company Act"), assuming The ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Leveraged Equity
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Fund II, L.P. ("MSLEF") is not an "investment company" and is
not "controlled" by an "investment company";
(xvi) Neither the Company nor any of its affiliates
does business with the government of Cuba or with any person
or affiliate located in Cuba within the meaning of Section
517.075, Florida Statutes;
(xvii) Ernst & Young LLP, who have certified certain
financial statements of the Company and its subsidiaries, and
Price Waterhouse LLP, who have certified certain financial
statements of American National Can Company's Food Metal &
Specialty Division, are each independent public accountants as
required by the Act and the rules and regulations of the
Commission thereunder;
(xviii) Except as described in the Prospectus, the
Company and its subsidiaries (A) are in compliance with any
and all applicable foreign, federal, state and local laws and
regulations relating to the protection of human health and
safety, the environment or hazardous or toxic substances or
wastes, pollutants or contaminants ("Environmental Laws"), (B)
have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to
conduct their respective businesses and (C) are in compliance
with all terms and conditions of any such permit, license or
approval, except where such noncompliance with Environmental
Laws, failure to receive required permits, licenses or other
approvals or failure to comply with the terms and conditions
of such permits, licenses or approvals would not, singly or in
the aggregate, have a material adverse effect on the Company
and its subsidiaries; and
(xix) In the ordinary course of its business, the
Company conducts a periodic review of the effect of
Environmental Laws on the business, operations and properties
of the Company and its subsidiaries, in the course of which it
identifies and evaluates associated costs and liabilities
(including, without limitation, any material capital or
operating expenditures required for clean-up, closure of
properties or compliance with Environmental Laws or any
material permit, license or approval, any related constraints
on operating activities material to the Company and its
subsidiaries, and any potential material liabilities to third
parties). On the basis of such review, the Company has
reasonably concluded that such associated costs and
liabilities would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries.
(b) Each of the Selling Stockholders severally represents
and warrants to, and agrees with, each of the Underwriters and the
Company that:
(i) All consents, approvals, authorizations and
orders necessary for the execution and delivery by such
Selling Stockholder of this Agreement and for the sale and
delivery of the Shares to be sold by such Selling Stockholder
have been obtained; and such Selling Stockholder has full
right, power and authority to enter into this Agreement and to
sell, assign, transfer and deliver the Shares to be sold by
such Selling Stockholder hereunder;
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(ii) The sale of the Shares to be sold by such
Selling Stockholder hereunder and the compliance by such
Selling Stockholder with all of the provisions of this
Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under, any statute, indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument to
which such Selling Stockholder is a party or by which such
Selling Stockholder is bound, or to which any of the property
or assets of such Selling Stockholder is subject, nor will
such action result in any violation of the provisions of the
Certificate of Incorporation or By-laws of such Selling
Stockholder if such Selling Stockholder is a corporation, the
Limited Partnership Agreement of such Selling Stockholder if
such Selling Stockholder is a limited partnership or any
statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over such
Selling Stockholder or the property of such Selling
Stockholder;
(iii) Such Selling Stockholder has, and immediately
prior to each Time of Delivery (as defined in Section 4
hereof) such Selling Stockholder will have, valid title to the
Shares to be sold by such Selling Stockholder hereunder, free
and clear of all liens, encumbrances, equities or claims; and,
upon delivery of such Shares and payment therefor pursuant
hereto and thereto, valid title to such Shares, free and clear
of all liens, encumbrances, equities or claims, will pass to
the several Underwriters, as the case may be;
(iv) Such Selling Stockholder has not taken and will
not take, directly or indirectly (other than any action taken
by ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated ("MS&Co.") in connection
with the performance of its obligations as an Underwriter
hereunder), any action which is designed to or which has
constituted or which might reasonably be expected to cause or
result in stabilization or manipulation of the price of any
security of the Company to facilitate the sale or resale of
the Shares;
(v) To the extent that any statements or omissions
made in the Registration Statement, any Preliminary
Prospectus, the Prospectus or any amendment or supplement
thereto are made in reliance upon and in conformity with
written information furnished to the Company by such Selling
Stockholder expressly for use therein, such Preliminary
Prospectus and the Registration Statement did, and the
Prospectus and any further amendments or supplements to the
Registration Statement and the Prospectus, when they become
effective or are filed with the Commission, as the case may
be, will conform in all material respects to the requirements
of the Act and the rules and regulations of the Commission
thereunder and will not contain any untrue statement of a
material fact or omit to state any material fact required to
be stated therein or necessary to make the statements therein
not misleading; and
(vi) In order to document the Underwriters'
compliance with the reporting and withholding provisions of
the Tax Equity and Fiscal Responsibility Act of 1982 with
respect to the transactions herein contemplated, such Selling
Stockholder will deliver to you prior to or at the First Time
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of Delivery (as hereinafter defined) a properly completed and
executed United States Treasury Department Form W-9 (or other
applicable form or statement specified by Treasury Department
regulations in lieu thereof).
2. Subject to the terms and conditions herein set forth, (a)
the Company and each of the Selling Stockholders agree, severally and not
jointly, to sell to each of the Underwriters, and each of the Underwriters
agrees, severally and not jointly, to purchase from the Company and each of the
Selling Stockholders, at a purchase price per share of $18.60, the number of
Firm Shares (to be adjusted by you so as to eliminate fractional shares)
determined by multiplying the aggregate number of Firm Shares to be sold by the
Company and each of the Selling Stockholders as set forth opposite their
respective names in Schedule II hereto by a fraction, the numerator of which is
the aggregate number of Firm Shares to be purchased by such Underwriter as set
forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the aggregate number of Firm Shares to be purchased by
all of the Underwriters from the Company and all of the Selling Stockholders
hereunder and (b) in the event and to the extent that the Underwriters shall
exercise the election to purchase Optional Shares as provided below, each of the
Selling Stockholders agrees, severally and not jointly, to sell to each of the
Underwriters, and each of the Underwriters agrees, severally and not jointly, to
purchase from each of the Selling Stockholders, at the purchase price per share
set forth in clause (a) of this Section 2, that portion of the number of
Optional Shares as to which such election shall have been exercised (to be
adjusted by you so as to eliminate fractional shares) determined by multiplying
such number of Optional Shares by a fraction, the numerator of which is the
maximum number of Optional Shares which such Underwriter is entitled to purchase
as set forth opposite the name of such Underwriter in Schedule I hereto and the
denominator of which is the maximum number of Optional Shares that all of the
Underwriters are entitled to purchase hereunder.
The Selling Stockholders, as and to the extent indicated in Schedule II
hereto, hereby grant, severally and not jointly, to the Underwriters the right
to purchase at their election up to 675,000 Optional Shares, at the purchase
price per share set forth in the paragraph above, for the sole purpose of
covering overallotments in the sale of the Firm Shares. Any such election to
purchase Optional Shares shall be made in proportion to the maximum number of
Optional Shares to be sold by each Selling Stockholder as set forth in Schedule
II hereto. Any such election to purchase Optional Shares may be exercised only
by written notice from you to the Selling Stockholders, given within a period of
30 calendar days after the date of this Agreement and setting forth the
aggregate number of Optional Shares to be purchased and the date on which such
Optional Shares are to be delivered, as determined by you but in no event
earlier than the First Time of Delivery (as defined in Section 4 hereof) or,
unless you and the Selling Stockholders otherwise agree in writing, earlier than
two or later than ten business days after the date of such notice.
MS&Co. shall not receive any underwriting discounts,
commissions or fees related to the purchase, underwriting or sale of 714,439
Firm Shares sold by MSLEF and such additional Shares to be sold by MSLEF in the
event any Optional Shares are purchased.
3. The Company hereby confirms its engagement of ▇▇▇▇▇▇▇,
▇▇▇▇▇ & Co. as, and ▇▇▇▇▇▇▇, Sachs & Co. hereby confirms its agreement with the
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Company to render services as, a "qualified independent underwriter" within the
meaning of Section 2(o) of Rule 2720 of the National Association of Securities
Dealers, Inc. (the "NASD") with respect to the offering and sale of the Shares.
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., in its capacity as qualified independent underwriter and
not otherwise, is referred to herein as the "QIU". As compensation for the
services of the QIU hereunder, the Company agrees to pay the QIU $10,000 on the
Closing Date.
4. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
5. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in
such names as ▇▇▇▇▇▇▇, Sachs & Co. may request upon at least
forty-eight hours' prior notice to the Company and the Selling
Stockholders shall be delivered by or on behalf of the Company and the
Selling Stockholders to ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., for the account of such
Underwriter, against payment by or on behalf of such Underwriter of the
purchase price therefor by wire transfer or by certified or official
bank check or checks, payable to the order of the Company and the
Selling Stockholders in Federal (same day) funds. The Company will
cause the certificates representing the Shares to be made available for
checking and packaging at least twenty-four hours prior to the Time of
Delivery (as defined below) with respect thereto at the office of
▇▇▇▇▇▇▇, Sachs & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the
"Designated Office"). The time and date of such delivery and payment
shall be, with respect to the Firm Shares, 9:30 a.m., New York City
time, on February 20, 1997 or such other time and date as ▇▇▇▇▇▇▇,
Sachs & Co., the Company and the Selling Stockholders may agree upon in
writing, and, with respect to the Optional Shares, 9:30 a.m., New York
City time, on the date specified by ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. in the written
notice given by ▇▇▇▇▇▇▇, Sachs & Co. of the Underwriters' election to
purchase such Optional Shares, or such other time and date as ▇▇▇▇▇▇▇,
Sachs & Co., and the Selling Stockholders may agree upon in writing.
Such time and date for delivery of the Firm Shares is herein called the
"First Time of Delivery", such time and date for delivery of the
Optional Shares, if not the First Time of Delivery, is herein called
the "Second Time of Delivery", and each such time and date for delivery
is herein called a "Time of Delivery".
(b) The documents to be delivered at each Time of Delivery by
or on behalf of the parties hereto pursuant to Section 8 hereof,
including the cross receipts for the Shares and any additional
documents requested by the Underwriters pursuant to Section 8(o)
hereof, will be delivered at the offices of Shearman & Sterling, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (the "Closing Location"),
and the Shares will be delivered at the Designated Office, all at such
Time of Delivery. A meeting will be held at the Closing Location at
2:00 p.m., New York City time, on the New York Business Day next
preceding such Time of Delivery, at which meeting the final drafts of
the documents to be delivered pursuant to the preceding sentence will
be available for review by the parties hereto. For the purposes of this
Agreement, "New York Business Day" shall mean each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking
institutions in New York are generally authorized or obligated by law
or executive order to close.
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6. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to
file such Prospectus pursuant to Rule 424(b) of the rules and
regulations of the Commission under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement, or, if applicable, such
earlier time as may be required by Rule 430A(a)(3) of the rules and
regulations of the Commission under the Act; to make no further
amendment or any supplement to the Registration Statement or Prospectus
which shall be disapproved by you promptly after reasonable notice
thereof; to advise you, promptly after it receives notice thereof, of
the time when any amendment to the Registration Statement has been
filed and becomes effective or any supplement to the Prospectus or any
amended Prospectus has been filed and to furnish you with copies
thereof; to advise you, promptly after it receives notice thereof, of
the issuance by the Commission of any stop order or of any order
preventing or suspending the use of any Preliminary Prospectus or
Prospectus, of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, of the initiation or threatening
of any proceeding for any such purpose, or of any request by the
Commission for the amending or supplementing of the Registration
Statement or Prospectus or for additional information; and, in the
event of the issuance of any stop order or of any order preventing or
suspending the use of any Preliminary Prospectus or Prospectus or
suspending any such qualification, promptly to use its best efforts to
obtain the withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under
the securities laws of such jurisdictions as you may request and to
comply with such laws so as to permit the continuance of sales and
dealings therein in such jurisdictions for as long as may be necessary
to complete the distribution of the Shares, provided that in connection
therewith the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction;
(c) Prior to 10:00 a.m., New York City time, on the New York
Business Day next succeeding the date of this Agreement and from time
to time, furnish the Underwriters with copies of the Prospectus in New
York City in such quantities as you may reasonably request, and, if the
delivery of a prospectus is required at any time prior to the
expiration of nine months after the time of issue of the Prospectus in
connection with the offering or sale of the Shares and if at such time
any event shall have occurred as a result of which the Prospectus as
then amended or supplemented would include an untrue statement of a
material fact or omit to state any material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made when such Prospectus is delivered, not misleading,
or, if for any other reason it shall be necessary during such period to
amend or supplement the Prospectus in order to comply with the Act, to
notify you and upon your request to prepare and furnish without charge
to each Underwriter and to any dealer in securities as many copies as
you may from time to time reasonably request of an amended Prospectus
or a supplement to the Prospectus which will correct such statement or
omission or effect such compliance, and in case any Underwriter is
required to deliver a prospectus in connection with sales of any of the
-10-
Shares at any time nine months or more after the time of issue of the
Prospectus, upon your request but at the expense of such Underwriter,
to prepare and deliver to such Underwriter as many copies as you may
request of an amended or supplemented Prospectus complying with Section
10(a)(3) of the Act;
(d) To make generally available to its securityholders as soon
as practicable, but in any event not later than eighteen months after
the effective date of the Registration Statement (as defined in Rule
158(c) of the rules and regulations of the Commission under the Act),
an earnings statement of the Company and its subsidiaries (which need
not be audited) complying with Section 11(a) of the Act and the rules
and regulations thereunder (including, at the option of the Company,
Rule 158);
(e) During the period beginning from the date hereof and
continuing to and including the date one year after the date of the
Prospectus, not to offer, sell, contract to sell or otherwise dispose
of, except as provided hereunder, any securities of the Company that
are substantially similar to the Shares, including but not limited to
any securities that are convertible into or exchangeable for, or that
represent the right to receive, Stock or any such substantially similar
securities (other than pursuant to employee stock option plans existing
on, or upon the conversion or exchange of convertible or exchangeable
securities outstanding as of, the date of this Agreement and shares of
Stock or securities convertible into such shares issued in connection
with acquisitions, if the holder thereof executes and delivers a
lock-up letter to you in the form attached hereto as Exhibit A),
without your prior written consent;
(f) To furnish to its stockholders as soon as practicable
after the end of each fiscal year an annual report (including a balance
sheet and statements of income, stockholders' equity and cash flows of
the Company and its consolidated subsidiaries certified by independent
public accountants) and, as soon as practicable after the end of each
of the first three quarters of each fiscal year (beginning with the
fiscal quarter ending after the effective date of the Registration
Statement), consolidated summary financial information of the Company
and its subsidiaries for such quarter in reasonable detail;
(g) During a period of five years from the effective date of
the Registration Statement, to furnish to you copies of all reports or
other communications (financial or other) furnished to stockholders,
and to deliver to you (i) as soon as they are available, copies of any
reports and financial statements furnished to or filed with the
Commission or any national securities exchange on which any class of
securities of the Company is listed; and (ii) such additional
information concerning the business and financial condition of the
Company as you may from time to time reasonably request (such financial
statements to be on a consolidated basis to the extent the accounts of
the Company and its subsidiaries are consolidated in reports furnished
to its stockholders generally or to the Commission);
(h) To use the net proceeds received by it from the sale of
the Shares pursuant to this Agreement in the manner specified in the
Prospectus under the caption "Use of Proceeds";
-11-
(i) To use its best efforts to list for quotation the Shares
on the National Association of Securities Dealers Automated Quotations
National Market System ("NASDAQ");
(j) To file with the Commission such reports on Form SR as may
be required by Rule 463 under the Act; and
(k) If the Company elects to rely upon Rule 462(b), the
Company shall file a Rule 462(b) Registration Statement with the
Commission in compliance with Rule 462(b) by 10:00 P.M., Washington,
D.C. time, on the date of this Agreement, and the Company shall at the
time of filing either pay to the Commission the filing fee for the Rule
462(b) Registration Statement or give irrevocable instructions for the
payment of such fee pursuant to Rule 111(b) under the Act.
7. The Company covenants and agrees with the several Underwriters that
the Company will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's counsel and accountants in
connection with the registration of the Shares under the Act and all other
expenses in connection with the preparation, printing and filing of the
Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the Blue Sky Memorandum,
closing documents (including any compilations thereof) and any other documents
in connection with the offering, purchase, sale and delivery of the Shares;
(iii) all expenses in connection with the qualification of the Shares for
offering and sale under state securities laws as provided in Section 6(b)
hereof, including the fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky survey;
(iv) all fees and expenses in connection with listing the Shares on the NASDAQ;
(v) the filing fees incident to, and the fees and disbursements of counsel for
the Underwriters in connection with, securing any required review by the
National Association of Securities Dealers, Inc. of the terms of the sale of the
Shares; (vi) the cost of preparing stock certificates; (vii) the cost and
charges of any transfer agent or registrar; and (viii) other costs and expenses
incident to the performance of its obligations hereunder which are not otherwise
specifically provided for in this Section; and (b) each of the Selling
Stockholders covenants and agrees that such Selling Stockholder will pay or
cause to be paid all costs and expenses incident to the performance of such
Selling Stockholder's obligations hereunder which are not otherwise specifically
provided for in this Section, including (i) any fees and expenses of counsel for
such Selling Stockholder and (ii) all taxes incident to the sale and delivery of
the Shares to be sold by such Selling Stockholder to the Underwriters hereunder.
In connection with Clause (b)(ii) of the preceding sentence, ▇▇▇▇▇▇▇, ▇▇▇▇▇ &
Co. agrees to pay New York State stock transfer tax, and the Selling Stockholder
agrees to reimburse ▇▇▇▇▇▇▇, Sachs & Co. for associated carrying costs if such
tax payment is not rebated on the day of payment and for any portion of such tax
payments not rebated. It is understood, however, that the Company shall bear,
and the Selling Stockholders shall not be required to pay or to reimburse the
Company for, the cost of any other matters not directly relating to the sale and
purchase of the Shares pursuant to this Agreement, and that, except as provided
in this Section, and Sections 9 and 13 hereof, the Underwriters will pay all of
their own costs and expenses, including the fees of their counsel, stock
transfer taxes on resale of any of the Shares by them, and any advertising
expenses connected with any offers they may make.
-12-
8. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
each Member of the Silgan Group and each Selling Stockholder herein are, at and
as of such Time of Delivery, true and correct, the condition that the Company
and the Selling Stockholders shall have performed all of its and their
obligations hereunder theretofore to be performed, and the following additional
conditions:
(a) The Prospectus shall have been filed with the Commission
pursuant to Rule 424(b) within the applicable time period prescribed
for such filing by the rules and regulations under the Act and in
accordance with Section 6(a) hereof; if the Company has elected to rely
upon Rule 462(b), the Rule 462(b) Registration Statement shall have
become effective by 10:00 P.M., Washington, D.C. time, on the date of
this Agreement; no stop order suspending the effectiveness of the
Registration Statement or any part thereof shall have been issued and
no proceeding for that purpose shall have been initiated or threatened
by the Commission; and all requests for additional information on the
part of the Commission shall have been complied with to your reasonable
satisfaction;
(b) Shearman & Sterling, counsel for the Underwriters, shall
have furnished to you such opinion or opinions (a draft of each such
opinion is attached as Annex II(a) hereto), dated such Time of
Delivery, with respect to the matters covered in paragraphs (i), (ii),
(vi), (x) and (xiii) of subsection (c) below as well as such other
related matters as you may reasonably request, and such counsel shall
have received such papers and information as they may reasonably
request to enable them to pass upon such matters;
(c) Winthrop, Stimson, ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, counsel for the
Company, shall have furnished to you their written opinion (a draft of
such opinion is attached as Annex II(b) hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect
that:
(i) The Company has been duly incorporated and is
validly existing as a corporation in good standing under the
laws of the State of Delaware, with corporate power and
authority to own its properties and conduct its business as
described in the Prospectus;
(ii) The Company has an authorized capitalization as
set forth in the Prospectus, and all of the issued shares of
capital stock of the Company (including the Shares being
delivered at such Time of Delivery) have been duly and validly
authorized and issued and are fully paid and non-assessable;
and the Shares conform to the description of the Stock
contained in the Prospectus;
(iii) The Company has been duly qualified as a
foreign corporation for the transaction of business and is in
good standing under the laws of each other jurisdiction in
which it owns or leases properties or conducts any business as
described in the Prospectus so as to require such
qualification, except to the extent that the failure to be so
qualified or be in good standing would not have a material
-13-
adverse effect on the Company and its subsidiaries (such
counsel being entitled to rely in respect of matters of fact
upon certificates of officers of the Company, provided that
such counsel shall state that they believe that both you and
they are justified in relying upon such certificates);
(iv) Each of Silgan, Containers and Plastics has been
duly incorporated, is validly existing as a corporation in
good standing under the laws of its jurisdiction of
incorporation and has the corporate power and authority to own
its property and to conduct its business as described in the
Prospectus; and all of the issued shares of capital stock of
each of Silgan, Containers and Plastics have been duly and
validly authorized and issued, are fully paid and
non-assessable, and are owned directly or indirectly by the
Company, free and clear of all liens, encumbrances, equities
or claims other than such pledges of such capital stock
existing on the date hereof made in connection with the Credit
Agreement, dated as of August 1, 1995, among Silgan,
Containers, Plastics and the banks parties thereto (such
counsel being entitled to rely in respect of the opinion in
this clause upon opinions of local counsel and in respect to
matters of fact upon certificates of officers of the Company
or its subsidiaries, provided that such counsel shall state
that they believe that both you and they are justified in
relying upon such opinions and certificates);
(v) To the best of such counsel's knowledge and other
than as set forth in the Prospectus, there are no legal or
governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the
Company or any of its subsidiaries is the subject which, if
determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
material adverse effect on the current or future consolidated
financial position, stockholders' equity or results of
operations of the Company and its subsidiaries; and, to the
best of such counsel's knowledge, no such proceedings are
threatened by governmental authorities or others;
(vi) This Agreement has been duly authorized,
executed and delivered by the Company;
(vii) The issue and sale of the Shares being
delivered at such Time of Delivery by the Company and the
compliance by the Company with all of the provisions of this
Agreement and the consummation of the transactions herein
contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute
a default under, any material indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known
to such counsel to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject,
nor will such action result in any violation of the provisions
of the Certificate of Incorporation or By-laws of the Company
or any statute or any order, rule or regulation known to such
counsel of any court or governmental agency or body of the
United States or the states of Connecticut, New York or (only
with respect to the General Corporation
-14-
Law) Delaware having jurisdiction over the Company or any of
its subsidiaries or any of their properties;
(viii) No consent, approval, authorization, order,
registration or qualification of or with any court or
governmental agency or body of the United States or the states
of Connecticut, New York or (only with respect to the General
Corporation Law) Delaware is required for the issue and sale
of the Shares by the Company or the consummation by the
Company of the transactions contemplated by this Agreement,
except the registration under the Act of the Shares, and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution
of the Shares by the Underwriters;
(ix) After reasonable due inquiry, to the best of
such counsel's knowledge, neither the Company nor any of its
subsidiaries is in violation of its Certificate of
Incorporation or By-laws or in default in the performance or
observance of any obligation, agreement, covenant or condition
contained in any material indenture, mortgage, deed of trust,
loan agreement, lease or other agreement or instrument to
which it is a party or by which it or any of its properties
may be bound, except for such defaults as do not and will not
have a material adverse effect on the Company and its
subsidiaries;
(x) The statements set forth in the Prospectus under
the caption "Description of Capital Stock", insofar as they
purport to constitute a summary of the terms of the Stock and
under the caption "Underwriting", insofar as they purport to
describe the provisions of the laws and documents referred to
therein, are accurate, complete and fair;
(xi) The Company is not an "investment company" or an
entity "controlled" by an "investment company", as such terms
are defined in the Investment Company Act, assuming MSLEF is
not an "investment company" and is not "controlled" by an
"investment company";
(xii) The documents incorporated by reference in the
Prospectus (other than the financial statements and schedules
and other financial data therein, as to which such counsel
need express no opinion), when they were filed with the
Commission, complied as to form in all material respects with
the requirements of the Exchange Act and the rules and
regulations of the Commission thereunder; and they have no
reason to believe that any of such documents, when such
documents were so filed, contained an untrue statement of a
material fact or omitted to state a material fact necessary in
order to make the statements therein, in the light of the
circumstances under which they were made when such documents
were so filed, not misleading; and
(xiii) The Registration Statement and the Prospectus
and any further amendments and supplements thereto made by the
Company prior to such Time of Delivery (other than the
financial statements and schedules and other financial data
therein, as to which such counsel need express no opinion)
-15-
comply as to form in all material respects with the
requirements of the Act and the rules and regulations
thereunder; although they do not assume any responsibility for
the accuracy, completeness or fairness of the statements
contained in the Registration Statement or the Prospectus,
except for those referred to in the opinion in subsection (x)
of this Section 8(c), they have no reason to believe that, as
of its effective date, the Registration Statement or any
further amendment thereto made by the Company prior to such
Time of Delivery (other than the financial statements and
schedules and other financial data therein, as to which such
counsel need express no opinion) contained an untrue statement
of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading or that, as of its date, the
Prospectus or any further amendment or supplement thereto made
by the Company prior to such Time of Delivery (other than the
financial statements and schedules and other financial data
therein, as to which such counsel need express no opinion)
contained an untrue statement of a material fact or omitted to
state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading or that, as of such Time of
Delivery, either the Registration Statement or the Prospectus
or any further amendment or supplement thereto made by the
Company prior to such Time of Delivery (other than the
financial statements and schedules and other financial data
therein, as to which such counsel need express no opinion)
contains an untrue statement of a material fact or omits to
state a material fact necessary to make the statements
therein, in the light of the circumstances under which they
were made, not misleading; and they do not know of any
amendment to the Registration Statement required to be filed
or of any contracts or other documents of a character required
to be filed as an exhibit to the Registration Statement or
required to be incorporated by reference into the Prospectus
or required to be described in the Registration Statement or
the Prospectus which are not filed or incorporated by
reference or described as required;
(d) ▇▇▇▇▇▇▇ & ▇▇▇▇▇, L.L.P. independent counsel for the
Company, shall have furnished to you their written opinion (a draft of
such opinion is attached as Annex II(c) hereto), dated such Time of
Delivery, in form and substance satisfactory to you, to the effect
that:
(i) Based on such counsel's knowledge, the Company
and its subsidiaries: (x) are in compliance with any and all
applicable federal, state and local laws and regulations
relating to the protection of human health, safety, the
environment, and hazardous or toxic substances or wastes,
pollutants or contaminants ("Environmental Laws"); and (y)
have received and comply with all terms and conditions of all
permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective
businesses -- except as otherwise described in or contemplated
by this Agreement and except where ▇▇▇▇▇▇▇ & ▇▇▇▇▇ L.L.P.
believes such noncompliance with Environmental Laws, and
failure to receive or comply with the terms and conditions of
required permits, licenses or other approvals does not likely,
singly or in the aggregate and taken as a whole, have a
material adverse effect on the Company and its subsidiaries;
-16-
(ii) No opinion or other assessment (other than audit
response letters) has been provided as to any pending or
threatened litigation against the Company or any subsidiary;
(iii) Each of California-Washington Can Corporation
and SCCW Can Corporation (the "California Subsidiaries") is a
corporation incorporated, validly existing and in good
standing under the laws of the State of California;
(iv) To such counsel's current, actual knowledge,
each of the California Subsidiaries has full corporate power
and authority to conduct its business as currently conducted
in accordance with its articles of incorporation. The articles
of incorporation of each California Subsidiary provides that
"[t]he purpose of this corporation is to engage in any lawful
act or activity for which a corporation may be organized under
the General Corporation Law of California other than the
banking business, the trust company business or the practice
of a profession permitted to be incorporated by the California
Corporations Code."
(e) Proskauer ▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇ LLP, independent counsel
for the Company, shall have furnished to you their written opinion (a
draft of such opinion is attached as Annex II(d) hereto), dated such
Time of Delivery, in form and substance satisfactory to you, to the
effect that:
Nothing has come to such counsel's attention which would lead
them to conclude that the first paragraph under the caption
"Legal Proceedings", insofar as such paragraph constitutes a
summary of the legal matters, documents or proceedings
referred to therein, does not fairly summarize the matter
referred to therein.
(f) The respective counsel for each of the Selling
Stockholders, as indicated in Schedule II hereto, each shall have
furnished to you their written opinion with respect to each of the
Selling Stockholders for whom they are acting as counsel, dated such
Time of Delivery, in form and substance satisfactory to you, to the
effect that:
(i) This Agreement has been duly executed and
delivered by or on behalf of such Selling Stockholder; and the
sale of the Shares to be sold by such Selling Stockholder
hereunder and thereunder and the compliance by such Selling
Stockholder with all of the provisions of this Agreement and
the consummation of the transactions herein contemplated will
not conflict with or result in a breach or violation of any
terms or provisions of, or constitute a default under, any
statute (except that no opinion need be expressed in respect
of the Investment Company Act), indenture, mortgage, deed of
trust, loan agreement or other agreement or instrument known
to such counsel to which such Selling Stockholder is a party
or by which such Selling Stockholder is bound, or to which any
of the property or assets of such Selling Stockholder is
subject, nor will such action result in any violation of the
provisions of the Certificate of Incorporation or By-laws of
such Selling Stockholder if such Selling Stockholder is a
-17-
corporation, the Limited Partnership Agreement of such Selling
Stockholder if such Selling Stockholder is a limited
partnership or any order, rule or regulation known to such
counsel of any court or governmental agency or body having
jurisdiction over such Selling Stockholder or the property of
such Selling Stockholder;
(ii) No consent, approval, authorization or order of
any court or governmental agency or body is required for the
consummation of the transactions contemplated by this
Agreement in connection with the Shares to be sold by such
Selling Stockholder hereunder or thereunder, except such as
have been obtained under the Act and such as may be required
under state or foreign securities or Blue Sky laws in
connection with the purchase and distribution of such Shares
by the Underwriters; and
(iii) Immediately prior to the date hereof, each
Selling Stockholder was the sole registered owner of the
Shares to be sold by such Selling Stockholder; upon
registration of the Shares in the names of the Underwriters in
the stock records of the Company, and the issuance of new
certificates registered in the names of the Underwriters
representing such Shares, assuming the Underwriters purchased
the Shares in good faith and without notice of any adverse
claim within the meaning of the Uniform Commercial Code, the
Underwriters will have acquired all rights of such
Stockholders in the Shares free of any adverse claim, any lien
in favor of the Company, and any restrictions on transfer
imposed by the Company, and the owner of the Shares, if other
than such Selling Stockholder, will be precluded from
asserting against the Underwriters the ineffectiveness of any
unauthorized endorsement.
In rendering such opinion, such counsel may state
that they express no opinion as to the laws of any jurisdiction outside
the United States and in rendering the opinion in subparagraph (iii)
such counsel may rely upon a certificate of such Selling Stockholder in
respect of matters of fact as to ownership of, and liens, encumbrances,
equities or claims on the Shares sold by such Selling Stockholder,
provided that such counsel shall state that they believe that both you
and they are justified in relying upon such certificate;
(g) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m., New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at
each Time of Delivery, Ernst & Young LLP shall have furnished to you a
letter or letters, dated the respective dates of delivery thereof, in
form and substance satisfactory to you, to the effect set forth in
Annex I hereto (the executed copy of the letter delivered prior to the
execution of this Agreement is attached as Annex I hereto);
(h) On the date of the Prospectus at a time prior to the
execution of this Agreement, at 9:30 a.m. New York City time, on the
effective date of any post-effective amendment to the Registration
Statement filed subsequent to the date of this Agreement and also at
-18-
each Time of Delivery, Price Waterhouse LLP, shall have furnished to
you a letter or letters, dated the respective dates of delivery
thereof, in form and substance satisfactory to you.
(i)(i) Neither the Company nor any of its subsidiaries shall
have sustained since the date of the latest audited financial
statements included or incorporated by reference in the Prospectus any
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus, and (ii) since the
respective dates as of which information is given in the Prospectus
there shall not have been any change in the capital stock or long-term
debt of the Company or any of its subsidiaries or any change, or any
development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' equity or
results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus, the effect of
which, in any such case described in clause (i) or (ii), is in your
judgment so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(j) On or after the date hereof (i) no downgrading shall have
occurred in the rating accorded the Company's debt securities or
preferred stock by any "nationally recognized statistical rating
organization", as that term is defined by the Commission for purposes
of Rule 436(g)(2) under the Act, and (ii) no such organization shall
have publicly announced that it has under surveillance or review, with
possible negative implications, its rating of any of the Company's debt
securities or preferred stock;
(k) On or after the date hereof there shall not have occurred
any of the following: (i) a suspension or material limitation in
trading in securities generally on the New York Stock Exchange or on
the NASDAQ; (ii) a suspension or material limitation in trading in the
Company's securities on the NASDAQ; (iii) a general moratorium on
commercial banking activities declared by either Federal or New York
State authorities; or (iv) the outbreak or escalation of hostilities
involving the United States or the declaration by the United States of
a national emergency or war, if the effect of any such event specified
in this clause (iv) in your judgment makes it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in the Prospectus;
(l) The Shares to be sold by the Company and the Selling
Stockholders at such Time of Delivery shall have been duly listed for
quotation on NASDAQ;
(m) The Company has obtained and delivered to the Underwriters
executed copies of an agreement from MSLEF, D. ▇▇▇▇ ▇▇▇▇▇▇▇▇, R. ▇▇▇▇▇▇
Silver, Bankers Trust New York Corporation ("BTNY"), ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇., ▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, substantially to the effect
set forth in Section 6(e) hereof (except, in respect of ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇., ▇▇▇▇▇ ▇. ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, the duration of the lock-up
shall be 180 days) in form and substance satisfactory to you;
-19-
(n) The Company shall have complied with the provisions of
Section 6(c) hereof with respect to the furnishing of prospectuses on
the New York Business Day next succeeding the date of this Agreement;
and
(o) The Company and the Selling Stockholders shall have
furnished or caused to be furnished to you at such Time of Delivery
certificates of officers of the Company or any other Member of the
Silgan Group and of the Selling Stockholders, respectively,
satisfactory to you as to the accuracy of the representations and
warranties of each Member of the Silgan Group and each Selling
Stockholder, respectively, herein at and as of such Time of Delivery,
as to their respective performance of all of their obligations
hereunder to be performed at or prior to such Time of Delivery, as to
the matters set forth in subsections (a) and (i) of this Section and as
to such other matters as you may reasonably request.
9. (a) Each Member of the Silgan Group will jointly and
severally indemnify and hold harmless each Underwriter against any
losses, claims, damages or liabilities, joint or several, to which such
Underwriter may become subject, under the Act or otherwise, insofar as
such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or any
amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required
to be stated therein or necessary to make the statements therein not
misleading, and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
investigating or defending any such action or claim as such expenses
are incurred; provided, however, that no Member of the Silgan Group
shall be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon an untrue
statement or alleged untrue statement or omission or alleged omission
made in any Preliminary Prospectus, the Registration Statement or the
Prospectus or any such amendment or supplement in reliance upon and in
conformity with written information furnished to the Company by any
Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein.
(b) Each of MSLEF and BTNY will indemnify and hold harmless
each Underwriter against any losses, claims, damages or liabilities,
joint or several, to which such Underwriter may become subject, under
the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or
the Prospectus, or any amendment or supplement thereto, or arise out of
or are based upon the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in any Preliminary Prospectus,
the Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by such Selling Stockholder expressly for use
therein; and will reimburse each Underwriter for any legal or other
expenses reasonably incurred by such Underwriter in connection with
-20-
investigating or defending any such action or claim as such expenses
are incurred; provided, however, that such Selling Stockholder shall
not be liable in any such case to the extent that any such loss, claim,
damage or liability arises out of or is based upon an untrue statement
or alleged untrue statement or omission or alleged omission made in any
Preliminary Prospectus, the Registration Statement or the Prospectus or
any such amendment or supplement in reliance upon and in conformity
with written information furnished to the Company by any Underwriter
through ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. expressly for use therein.
(c) Each Underwriter will indemnify and hold harmless the
Company and each Selling Stockholder against any losses, claims,
damages or liabilities to which the Company or such Seller Stockholder
may become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case to the extent, but only to the extent, that such untrue
statement or alleged untrue statement or omission or alleged omission
was made in any Preliminary Prospectus, the Registration Statement or
the Prospectus or any such amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by such
Underwriter through ▇▇▇▇▇▇▇, Sachs & Co. expressly for use therein; and
will reimburse the Company and each Selling Stockholder for any legal
or other expenses reasonably incurred by the Company or such Selling
Stockholder in connection with investigating or defending any such
action or claim as such expenses are incurred.
(d) Promptly after receipt by an indemnified party under
subsection (a), (b) or (c) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is
to be made against the indemnifying party under such subsection, notify
the indemnifying party in writing of the commencement thereof; but the
omission so to notify the indemnifying party shall not relieve it from
any liability which it may have to any indemnified party otherwise than
under such subsection. In case any such action shall be brought against
any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and, after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party shall not be liable to such indemnified
party under such subsection for any legal expenses of other counsel or
any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than
reasonable costs of investigation. No indemnifying party shall, without
the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to,
any pending or threatened action or claim in respect of which
-21-
indemnification or contribution may be sought hereunder (whether or not
the indemnified party is an actual or potential party to such action or
claim) unless such settlement, compromise or judgment (i) includes an
unconditional release of the indemnified party from all liability
arising out of such action or claim and (ii) does not include a
statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(e) If the indemnification provided for in this Section 9 is
unavailable to or insufficient to hold harmless an indemnified party
under subsection (a), (b) or (c) above in respect of any losses,
claims, damages or liabilities (or actions in respect thereof) referred
to therein, then each indemnifying party shall contribute to the amount
paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or actions in respect thereof) in such
proportion as is appropriate to reflect the relative benefits received
by the Members of the Silgan Group on a collective basis and the
Selling Stockholders on the one hand and the Underwriters on the other
from the offering of the Shares. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable
law or if the indemnified party failed to give the notice required
under subsection (d) above, then each indemnifying party shall
contribute to such amount paid or payable by such indemnified party in
such proportion as is appropriate to reflect not only such relative
benefits but also the relative fault of the Members of the Silgan Group
on a collective basis and the Selling Stockholders on the one hand and
the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities
(or actions in respect thereof), as well as any other relevant
equitable considerations. The relative benefits received by the Members
of the Silgan Group on a collective basis and the Selling Stockholders
on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering
(before deducting expenses) received by the Company and the Selling
Stockholders bear to the total underwriting discounts and commissions
received by the Underwriters, in each case as set forth in the table on
the cover page of the Prospectus. The relative fault shall be
determined by reference to, among other things, whether the untrue or
alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by
any Member of the Silgan Group or Selling Stockholder on the one hand
or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent
such statement or omission. Each Member of the Silgan Group, each of
the Selling Stockholders and the Underwriters agree that it would not
be just and equitable if contributions pursuant to this subsection (e)
were determined by pro rata allocation (even if the Underwriters were
treated as one entity for such purpose) or by any other method of
allocation which does not take account of the equitable considerations
referred to above in this subsection (e). The amount paid or payable by
an indemnified party as a result of the losses, claims, damages or
liabilities (or actions in respect thereof) referred to above in this
subsection (e) shall be deemed to include any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding
the provisions of this subsection (e), no Underwriter shall be required
to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages
-22-
which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (e)
to contribute are several in proportion to their respective
underwriting obligations and not joint.
(f) The obligations of each Member of the Silgan Group and the
Selling Stockholders under this Section 9 shall be in addition to any
liability which such Member of the Silgan Group and the respective
Selling Stockholders may otherwise have and shall extend, upon the same
terms and conditions, to each person, if any, who controls any
Underwriter within the meaning of the Act; and the obligations of the
Underwriters under this Section 9 shall be in addition to any liability
which the respective Underwriters may otherwise have and shall extend,
upon the same terms and conditions, to each officer and director of the
Company and to each person, if any, who controls the Company or any
Selling Stockholder within the meaning of the Act.
10. (a) Each Member of the Silgan Group and each Selling
Stockholder will jointly and severally indemnify and hold harmless
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., in its capacity as QIU, against any losses,
claims, damages or liabilities, joint or several, to which the QIU may
become subject, under the Act or otherwise, insofar as such losses,
claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus,
the Registration Statement or the Prospectus, or any amendment or
supplement thereto, or arise out of or are based upon the omission or
alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, in
each case, as to the Selling Stockholders, to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or
omission or alleged omission was made in any Preliminary Prospectus,
the Registration Statement or the Prospectus or any such amendment or
supplement in reliance upon and in conformity with written information
furnished to the Company by such Selling Stockholder expressly for use
therein; and will reimburse the QIU for any legal or other expenses
reasonably incurred by the QIU in connection with investigating or
defending any such action or claim as such expenses are incurred.
(b) Promptly after receipt by the QIU of notice of the
commencement of any action, the QIU shall, if a claim in respect
thereof is to be made against any Member of the Silgan Group or any
Selling Stockholder under subsection (a) above, notify the Company or
the Selling Stockholder, as the case may be, in writing of the
commencement thereof; but the omission so to notify the Company or the
Selling Stockholder, as the case may be, shall not relieve any Member
of the Silgan Group or any Selling Stockholder from any liability which
it may have to the QIU otherwise than under such subsection. In case
any such action shall be brought against the QIU and it shall notify
the Company and the Selling Stockholders of the commencement thereof,
the Company or the Selling Stockholder, as the case may be, shall be
entitled to participate therein and, to the extent that it shall wish,
jointly with any other indemnifying party similarly notified, to assume
-23-
the defense thereof, with counsel satisfactory to the QIU (who shall
not, except with the consent of the QIU, be counsel to any Member of
the Silgan Group), and, after notice from the indemnifying party to the
QIU of its election so to assume the defense thereof, the indemnifying
party shall not be liable to the QIU under such subsection for any
legal expenses of other counsel or any other expenses, in each case
subsequently incurred by the QIU, in connection with the defense
thereof other than reasonable costs of investigation. No Member of the
Silgan Group or Selling Stockholder shall, without the written consent
of the indemnified party, effect the settlement or compromise of, or
consent to the entry of any judgment with respect to, any pending or
threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the QIU is an
actual or potential party to such action or claim) unless such
settlement, compromise or judgment (i) includes an unconditional
release of the QIU from all liability arising out of such action or
claim and (ii) does not include a statement as to or an admission of
fault, culpability or a failure to act, by or on behalf of the QIU.
(c) If the indemnification provided for in this Section 10 is
unavailable to or insufficient to hold harmless ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.,
in its capacity as QIU, under subsection (a) above in respect of any
losses, claims, damages or liabilities (or actions in respect thereof)
referred to therein, then each Member of the Silgan Group and each
Selling Stockholder shall contribute to the amount paid or payable by
the QIU as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to
reflect the relative benefits received by the Members of the Silgan
Group on a collective basis and the Selling Stockholders on the one
hand and the QIU on the other from the offering of the Shares. If,
however, the allocation provided by the immediately preceding sentence
is not permitted by applicable law or if the QIU failed to give the
notice required under subsection (b) above, then each Member of the
Silgan Group and each Selling Stockholder shall contribute to such
amount paid or payable by the QIU in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault
of the Members of the Silgan Group on a collective basis and the
Selling Stockholders on the one hand and the QIU on the other in
connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities (or actions in respect thereof),
as well as any other relevant equitable considerations. The relative
benefits received by the Members of the Silgan Group on a collective
basis and the Selling Stockholders on the one hand and the QIU on the
other shall be deemed to be in the same proportion as the total net
proceeds from the offering (before deducting expenses) received by the
Company and the Selling Stockholders, as set forth in the table on the
cover page of the Prospectus, bear to the fee payable to the QIU
pursuant to Section 3 hereof. The relative fault shall be determined by
reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by any Member of
the Silgan Group or Selling Stockholder on the one hand or the QIU on
the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or
omission. Each Member of the Silgan Group, each Selling Stockholder and
the QIU agree that it would not be just and equitable if contributions
pursuant to this subsection (c) were determined by pro rata allocation
or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subsection (c). The
-24-
amount paid or payable by the QIU as a result of the losses, claims,
damages or liabilities (or actions in respect thereof) referred to
above in this subsection (c) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any such action or claim. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation.
(d) The obligations of each Member of the Silgan Group and
each Selling Stockholder under this Section 10 shall be in addition to
any liability which such Member of the Silgan Group and such Selling
Stockholder may otherwise have and shall extend, upon the same terms
and conditions, to each person, if any, who controls the QIU within the
meaning of the Act.
11. (a) If any Underwriter shall default in its obligation to
purchase the Shares which it has agreed to purchase hereunder at a Time
of Delivery, you may in your discretion arrange for you or another
party or other parties to purchase such Shares on the terms contained
herein. If within thirty-six hours after such default by any
Underwriter you do not arrange for the purchase of such Shares, then
the Company and the Selling Stockholders shall be entitled to a further
period of thirty-six hours within which to procure another party or
other parties reasonably satisfactory to you to purchase such Shares on
such terms. In the event that, within the respective prescribed
periods, you notify the Company and the Selling Stockholders that you
have so arranged for the purchase of such Shares, or the Company and
the Selling Stockholders notify you that it has so arranged for the
purchase of such Shares, you or the Company and the Selling
Stockholders shall have the right to postpone such Time of Delivery for
a period of not more than seven days, in order to effect whatever
changes may thereby be made necessary in the Registration Statement or
the Prospectus, or in any other documents or arrangements, and the
Company agrees to file promptly any amendments to the Registration
Statement or the Prospectus which in your opinion may thereby be made
necessary. The term "Underwriter" as used in this Agreement shall
include any person substituted under this Section with like effect as
if such person had originally been a party to this Agreement with
respect to such Shares.
(b) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by
you and the Company and the Selling Stockholders as provided in
subsection (a) above, the aggregate number of such Shares which remains
unpurchased does not exceed one-eleventh of the aggregate number of all
the Shares to be purchased at such Time of Delivery, then the Company
shall have the right to require each non-defaulting Underwriter to
purchase the number of shares which such Underwriter agreed to purchase
hereunder at such Time of Delivery and, in addition, to require each
non-defaulting Underwriter to purchase its pro rata share (based on the
number of Shares which such Underwriter agreed to purchase hereunder)
of the Shares of such defaulting Underwriter or Underwriters for which
such arrangements have not been made; but nothing herein shall relieve
a defaulting Underwriter from liability for its default or require
MS&Co. to purchase, underwrite or sell any MSLEF Shares.
-25-
(c) If, after giving effect to any arrangements for the
purchase of the Shares of a defaulting Underwriter or Underwriters by
you and the Company and the Selling Stockholders as provided in
subsection (a) above, the aggregate number of such Shares which remains
unpurchased exceeds one-eleventh of the aggregate number of all the
Shares to be purchased at such Time of Delivery, or if the Company
shall not exercise the right described in subsection (b) above to
require non-defaulting Underwriters to purchase Shares of a defaulting
Underwriter or Underwriters, then this Agreement (or, with respect to
the Second Time of Delivery, the obligations of the Underwriters to
purchase and of the Selling Stockholders to sell the Optional Shares)
shall thereupon terminate, without liability on the part of any
non-defaulting Underwriter or the Company or the Selling Stockholders,
except for the expenses to be borne by the Company and the Selling
Stockholders and the Underwriters as provided in Section 7 hereof and
the indemnity and contribution agreements in Section 9 hereof; but
nothing herein shall relieve a defaulting Underwriter from liability
for its default or require MS&Co. to purchase, underwrite or sell any
MSLEF Shares.
12. The respective indemnities, agreements, representations,
warranties and other statements of the Members of the Silgan Group, the
Selling Stockholders and the several Underwriters, as set forth in this
Agreement or made by or on behalf of them, respectively, pursuant to
this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by
or on behalf of any Underwriter or any controlling person of any
Underwriter, or any Member of the Silgan Group, or any Selling
Stockholder, or any officer or director or controlling person of any
Member of the Silgan Group, or any controlling person of any Selling
Stockholder and shall survive delivery of and payment for the Shares.
13. If this Agreement shall be terminated pursuant to Section
11 hereof, no Member of the Silgan Group nor the Selling Stockholders
shall then be under any liability to any Underwriter except as provided
in Sections 7 and 9 hereof and to the QIU except as provided in Section
10 hereof; but, if for any other reason, any Shares are not delivered
by or on behalf of the Company as provided herein, the Company, or if
for any other reason, any Shares are not delivered by or on behalf of
the Selling Stockholders as provided herein, the Selling Stockholders,
will reimburse the Underwriters through you for all out-of-pocket
expenses approved in writing by you, including fees and disbursements
of counsel, reasonably incurred by the Underwriters in making
preparations for the purchase, sale and delivery of the Shares not so
delivered, but no Member of the Silgan Group or Selling Stockholder
shall then be under any further liability to any Underwriter except as
provided in Sections 7 and 9 hereof and to the QIU except as provided
in Section 10 hereof.
14. In all dealings hereunder, you shall act on behalf of each
of the Underwriters, and the parties hereto shall be entitled to act
and rely upon any statement, request, notice or agreement on behalf of
any Underwriter made or given by you jointly or by ▇▇▇▇▇▇▇, Sachs & Co.
on behalf of you as the representatives.
All statements, requests, notices and agreements
hereunder shall be in writing, and if to the Underwriters shall be
delivered or sent by mail, telex or facsimile transmission to you as
-26-
the representatives in care of ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co., ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: Registration Department; if to any
Selling Stockholder shall be delivered or sent by mail, telex or
facsimile transmission to counsel for such Selling Stockholder at its
address set forth in Schedule II hereto; and if to any Member of the
Silgan Group shall be delivered or sent by mail to the address of the
Company set forth in the Registration Statement, Attention: Chief
Financial Officer; provided, however, that any notice to an Underwriter
pursuant to Section 9(d) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set
forth in its Underwriters' Questionnaire, or telex constituting such
Questionnaire, which address will be supplied to the Company or the
Selling Stockholders by you upon request. Any such statements,
requests, notices or agreements shall take effect upon receipt thereof.
15. This Agreement shall be binding upon, and inure solely to
the benefit of, the Underwriters, the Members of the Silgan Group and
the Selling Stockholders and, to the extent provided in Sections 9, 10
and 12 hereof, the officers and directors of the Company and each
person who controls the Company, any Selling Stockholder or any
Underwriter, and their respective heirs, executors, administrators,
successors and assigns, and no other person shall acquire or have any
right under or by virtue of this Agreement. No purchaser of any of the
Shares from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
16. Time shall be of the essence of this Agreement. As
used herein, the term "business day" shall mean any day when the
Commission's office in Washington, D.C. is open for business.
17. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York.
18. This Agreement may be executed by any one or more of
the parties hereto in any number of counterparts, each of which shall
be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
-27-
If the foregoing is in accordance with your understanding,
please sign and return to us nine (9) counterparts hereof, and upon the
acceptance hereof by you, on behalf of each of the Underwriters, this
letter and such acceptance hereof shall constitute a binding agreement
between each of the Underwriters, each Member of the Silgan Group and
each of the Selling Stockholders. It is understood that your acceptance
of this letter on behalf of each of the Underwriters is pursuant to the
authority set forth in a form of Agreement among Underwriters, the form
of which shall be submitted to the Company and the Selling Stockholders
for examination upon request, but without warranty on your part as to
the authority of the signers thereof.
Very truly yours,
SILGAN HOLDINGS INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
-------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Title: Executive Vice President, Chief
Financial Officer and Treasurer
SILGAN CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Title: Executive Vice President, Chief
Financial Officer and Treasurer
SILGAN CONTAINERS CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Title: Vice President
SILGAN PLASTICS CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
-----------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇.
Title: Vice President
-28-
THE ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LEVERAGED EQUITY
FUND II, L.P.
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Leveraged Equity Fund
II, Inc.
as general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice Chairman
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Vice Chairman
BANKERS TRUST NEW YORK CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Title: Senior Vice President
Accepted as of the date hereof:
▇▇▇▇▇▇▇, Sachs & Co.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Salomon Brothers Inc.
By: /s/ ▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co.
-----------------------------------
(▇▇▇▇▇▇▇, Sachs & Co.)
On behalf of each of the Underwriters
-29-
SCHEDULE I
Number of
Optional Shares
Total Number of to be Sold if
Firm Shares to Maximum Option
Underwriters be Sold Exercised
▇▇▇▇▇▇▇, ▇▇▇▇▇ & Co. 1,065,817 159,873
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated* 1,065,815 159,873
Salomon Brothers Inc 1,065,815 159,873
▇.▇. ▇▇▇▇▇▇▇▇ & Co. 76,621 11,493
Credit Suisse First Boston Corporation 127,701 19,155
▇▇▇▇▇▇▇▇▇, Lufkin & ▇▇▇▇▇▇▇▇ Securities 127,701 19,155
Corporation
▇.▇. ▇▇▇▇▇▇▇ & Sons, Inc. 127,701 19,155
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Inc. 76,621 11,493
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ & Co., L.P. 76,621 11,493
▇▇▇▇▇▇▇▇ & Company Securities, Inc. 76,621 11,493
▇▇▇▇▇▇ Brothers Inc. 127,701 19,155
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ 127,701 19,155
Incorporated
PaineWebber Incorporated 127,701 19,155
▇▇▇▇▇ ▇▇▇▇▇▇▇ Inc. 76,621 11,493
▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇▇▇▇, Inc. 76,621 11,493
Wheat, First Securities, Inc. 76,621 11,493
----------- -------------
Total 4,500,000 675,000
=========== =============
--------
* With respect to the Firm Shares, MS&Co. will only underwrite Shares sold
by the Company and BTNY. In the event the Optional Shares are sold by
MSLEF, rather than underwrite Optional Shares, MS&Co. will be obligated to
purchase from the other Representatives on a pro rata basis an aggregate
number of Shares equal to the number of Optional Shares set forth above
opposite MS&Co.
SCHEDULE II
Number of Optional
Total Number of Shares to be Sold
Firm Shares to if Maximum Option
be Sold Exercised
The Company......................................3,700,000 0
The Selling Stockholders:
The ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Leveraged Equity Fund
II, L.P. (a).................................... 714,439 602,807
Bankers Trust New York Corporation (b).......... 85,561 72,193
----------- --------
Total...........................................4,500,000 675,000
========= =======
(a) This Selling Stockholder is represented by ▇▇▇▇▇, Polk & ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
(b) This Selling Stockholder is represented by ▇▇▇▇▇, Polk & ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇.
EXHIBIT A
FORM OF LOCK-UP LETTER
___________, 1997
▇▇▇▇▇▇▇, Sachs & Co.
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated
Salomon Brothers Inc
c/o Goldman, ▇▇▇▇▇ & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned understands that ▇▇▇▇▇▇▇, Sachs & Co.
("Goldman"), as representative of the several Underwriters, has entered into an
Underwriting Agreement (the "Underwriting Agreement") with Silgan Holdings Inc.,
a Delaware corporation (the "Company"), which provided for the public offering
(the "Public Offering") by the several Underwriters, including Goldman, of
4,500,000 shares (the "Shares") of Common Stock, par value $.01 per share, of
the Company (the "Common Stock"). The undersigned further understands that the
Company has agreed pursuant to Section 6(e) of the Underwriting Agreement, among
other things, not to offer, sell, contract to sell or otherwise dispose of
shares of Common Stock or securities convertible into Common Stock in connection
with acquisitions unless the transferee executes and delivers to Goldman this
letter.
In satisfaction of this requirement, the undersigned hereby
agrees that, without the prior written consent of Goldman on behalf of the
Underwriters, it will not, during the period commencing on the date hereof and
ending six months after the date of the final prospectus relating to the Public
Offering (the "Prospectus"), offer, sell, contract to sell or otherwise dispose
of, directly or indirectly, any shares of Common Stock or any securities that
are substantially similar to the Common Stock, including but not limited to any
securities that are convertible into or exchangeable for, or that represent the
right to receive, Common Stock or any such substantially similar securities. In
addition, the undersigned agrees that, without the prior written consent of
Goldman on behalf of the Underwriters, it will not, during the period commencing
on the date hereof and ending six months after the date of the Prospectus, make
any demand for or exercise any right with respect to, the registration of any
shares of Common Stock or any securities that are substantially similar to the
Common Stock, including but not limited to any securities that are convertible
into or exchangeable for, or that represent the right to receive, Common Stock
or any such substantially similar securities.
Very truly yours,
---------------------------------
(Name)
---------------------------------
(Print Name)
---------------------------------
(Address)
Accepted as of the date first set forth above:
▇▇▇▇▇▇▇, Sachs & Co.
By:-------------------------
