Exhibit 10.1
SECOND AMENDMENT TO THE SILGAN HOLDINGS INC.
2004 STOCK INCENTIVE PLAN
The Silgan Holdings Inc. 2004 Stock Incentive Plan, as amended by the
Amendment to the 2004 Stock Incentive Plan effective as of March 15, 2005,
(the "Plan") is hereby amended, effective as of April 9, 2009, to increase
the number of shares that may be issued under the Plan, to extend the
duration of the Plan and to make certain technical changes to the Plan to
reflect compliance with Sections 409A and 162(m) of the Internal Revenue
Code of 1986, as amended (the "Code").
1. The definition of "Change in Control" in Section 2 of the Plan is
amended to add the following new paragraph to the end thereof:
Notwithstanding the foregoing, to the extent necessary to avoid the adverse
tax consequences under Code Section 409A, a Change in Control shall mean
any of the foregoing events but only to the extent it also meets the
requirements of an event qualifying as a change in control event for
purposes of Section 409A of the Code.
2. The definition of "Disability" in Section 2 of the Plan is amended to
add the following language to the end thereof:
Notwithstanding the foregoing, to the extent necessary to avoid the adverse
tax consequences under Code Section 409A, a Disability shall mean any of
the foregoing events, as applicable, for an Employee or an Outside
Director, but only to the extent it also meets the requirements of a
disability for purposes of Section 409A of the Code.
3. Section 5(a) of the Plan is amended to read in its entirety as follows:
(a) Basic Limitation. Shares offered under the Plan shall be authorized but
unissued Shares or treasury Shares. The maximum aggregate number of Shares
that may be issued in connection with Options, SARs, Stock Units,
Restricted Shares and Performance Awards under the Plan after April 9, 2009
("Effective Date") shall be 517,420, which is the number of Shares
authorized and available for issuance or grant as Awards immediately prior
to the Effective Date, plus an additional 1,500,000 Shares, so that a total
of 2,017,420 Shares are authorized under the Plan as of the Effective Date.
The limitation of this Section 5(a) shall be subject to adjustment pursuant
to Section 17.
4. Section 8(e) of the Plan is amended to add the following new paragraph
to the end thereof:
Notwithstanding anything herein to the contrary, in no event shall an
extension of an Option term occur to the extent that such extension would
result in the adverse tax consequences under Code Section 409A.
5. Section 8(h) of the Plan is amended to read in its entirety as follows:
(h) Prohibition on Repricing. The Committee shall not reduce the Exercise
Price of an Option (except for adjustments permitted by Section 17), or
cancel and replace an existing Option with an Option having a lower
Exercise Price, without first obtaining approval for such actions from the
Company's stockholders or to the extent such repricing or cancellation and
replacement would result in the adverse tax consequences under Code Section
409A.
6. Section 10(d) of the Plan is amended to add the following language to
the end thereof:
Notwithstanding anything herein to the contrary, in no event shall an
extension of a SAR term occur to the extent that such extension would
result in the adverse tax consequences under Code Section 409A.
7. Section 10(g) of the Plan is amended in its entirety to read as follows:
(g) Prohibition on Repricing. The Committee shall not reduce the Exercise
Price of a SAR (except for adjustments permitted by Section 17), or cancel
and replace an existing SAR with a SAR having a lower Exercise Price,
without first obtaining approval for such actions from the Company's
stockholders or to the extent such repricing or cancellation and
replacement would result in the adverse tax consequences under Code Section
409A.
8. Section 11(c) of the Plan is amended to add the following language to
the end thereof:
Notwithstanding anything herein to the contrary, the Award Agreement shall
govern the treatment of an Award upon a Change in Control, which may differ
from the provisions herein, and any such provision for Change in Control
shall be in a manner consistent with the provisions of Section 409A of the
Code.
9. Section 12(e) of the Plan is amended to add the following language to
the end thereof:
Notwithstanding anything herein to the contrary, the Award Agreement shall
govern the treatment of an Award upon a Change in Control, which may differ
from the provisions herein, and any such provision for Change in Control
shall be in a manner consistent with the provisions of Section 409A of the
Code.
10. Section 12(h) of the Plan is amended to add the following language to
the end thereof:
Notwithstanding anything in the Plan to the contrary, including, without
limitation, anything contained in Sections 6, 11, 12 or 17, in no event
shall a 162(m) Employee receive a payment under an Award intended to meet
the requirements of performance-based compensation for
purposes of Section 162(m) of the Code unless the applicable Performance
Criteria have been met (except as may be permitted under the Plan and an
Award upon death, disability or change of ownership or control in a manner
consistent with the regulations under Section 162(m) of the Code), to the
extent required to meet the requirements of Section 162(m) of the Code.
11. Section 17(a) of the Plan is amended to add the following language to
the end thereof:
No adjustment shall be made with respect to Awards to the extent the
adjustment would result in adverse tax consequences under Code Section
409A.
12. Section 18(c) of the Plan is amended to add the following language to
the end thereof:
Notwithstanding anything herein to the contrary, the Award Agreement shall
govern the treatment of an Award upon a Change in Control, which may differ
from the provisions herein, and any such provision for Change in Control
shall be in a manner consistent with the provisions of Section 409A of the
Code.
13. Section 18(e) of the Plan is amended to add the following language to
the end thereof:
Notwithstanding anything in the Plan or any Award to the contrary, to the
extent necessary to avoid the adverse tax consequences under Code Section
409A, in the event that a Participant is determined to be a specified
employee in accordance with Code Section 409A, and the regulations and
other guidance issued thereunder for purposes of any payment upon
separation from service, such payments shall be made or begin, as
applicable, on the first day of the first month which is more than six
months following the date of separation from service.
14. Section 27(a) of the Plan is amended to read as follows:
(a) Term of the Plan. The Plan, as set forth herein, shall terminate
automatically on May 27, 2016, and may be terminated on any earlier date
pursuant to subsection (b) below.