EXHIBIT 10.25
AMENDED AND RESTATED
MANAGEMENT SERVICES AGREEMENT
This Amended and Restated Management Services Agreement (the
"Agreement") is made as of this 14th day of February, 1997 by and between S&H
INC., a Connecticut corporation ("S&H"), and SILGAN CORPORATION, a Delaware
corporation ("Silgan").
W I T N E S S E T H:
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WHEREAS, S&H and Silgan have entered into the Amended and
Restated Management Services Agreement dated as of December 21, 1993 (the
"Original Management Services Agreement"), pursuant to which S&H provides
general management, supervision, administrative and other services to Silgan in
accordance with the terms of the Original Management Services Agreement;
WHEREAS, S&H also is a party to an Amended and Restated
Management Services Agreement dated as of December 21, 1993 with each of Silgan
Holdings Inc., the parent holding company of Silgan ("Holdings"), Silgan
Containers Corporation, a wholly owned subsidiary of Silgan ("Containers"), and
Silgan Plastics Corporation, a wholly owned subsidiary of Silgan ("Plastics");
WHEREAS, S&H and each of Holdings, Containers and Plastics are
entering into an amended and restated management services agreement dated as of
the date hereof (collectively, as so amended and restated, the "Affiliate
Management Services Agreements"); and
WHEREAS, in contemplation of the consummation of an initial
public offering of the common stock of Holdings pursuant to an effective
registration statement under the Securities Act of 1933, as amended, S&H and
Silgan desire to amend and restate hereby the Original Management Services
Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein, S&H and Silgan agree as follows:
1. Management Services.
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(a) S&H and Silgan hereby agree that, during the period
beginning on the date hereof and continuing throughout the term hereof, S&H and
its Affiliates shall provide to Silgan general management, supervision and
administrative services, including, without limitation, the preparation of the
annual and long-term business plans, and perform such other duties and provide
such other services as Silgan shall be permitted to request of S&H pursuant to
the Restated Certificate of Incorporation or By-Laws of Holdings or pursuant to
applicable law, which power and authority Silgan hereby grants to S&H ("General
Management Services"). (The General Management Services are hereinafter
collectively referred to as the "Services" and individually as a "Service").
(b) Any Service hereunder shall be provided to Silgan only
by S&H or its Affiliates or such consultants, subcontractors or agents as may be
selected from time to time by S&H to assist S&H in its provision of the
Services. It is understood and agreed that S&H may retain the services of Morgan
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Stanley & Co. Incorporated or another suitable investment bank as financial
advisor to Silgan or as an underwriter or placement agent for offerings of
securities by Silgan.
2. Fees; Payment.
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(a) In consideration for General Management Services
provided by S&H to Silgan hereunder, Silgan shall pay to S&H aggregate fees or
compensation therefor (not including any related out-of-pocket expenses), (i) on
a monthly basis, an amount equal to five thousand dollars ($5,000) plus 2.475%
of EBDIT (as defined in Paragraph 2(i) hereof) for such calendar month until
EBDIT for the calendar year to date has reached the Scheduled Amount (as defined
in Paragraph 2(d) hereof) for such calendar year, and 1.65% of EBDIT for such
calendar month to the extent that EBDIT for the calendar year to date exceeds
the Scheduled Amount but is not greater than the Maximum Amount (as defined in
Paragraph 2(d) hereof) (the "Monthly Management Fee"); and (ii) on a quarterly
basis, an amount equal to 2.475% of EBDIT for such calendar quarter until EBDIT
for the calendar year to date has reached the Scheduled Amount, and l.65% of
EBDIT for such calendar quarter to the extent that EBDIT for the calendar year
to date exceeds the Scheduled Amount but is not greater than the Maximum Amount
(the "Quarterly Management Fee").
(b) Such Quarterly Management Fee shall continue to
accrue, but shall not be paid, to S&H by Silgan in the event that, and from the
date on which, Silgan shall have received written notice ("Notice") from the
Agent (as defined below) that an Event of Default (as such term is defined in
the Credit
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Agreement, dated as of August 1, 1995, among Silgan, Containers, Plastics, the
lenders from time to time party thereto, Bankers Trust Company, as
Administrative Agent and as a Co-Arranger (the "Agent"), and Bank of America
Illinois, as Documentation Agent and as a Co-Arranger, as in effect from time to
time, and any refinancings, renewals, amendments or extensions thereof (the
"Credit Agreement")) exists under any of Sections 9.01, 9.03 (but only to the
extent resulting from the violation of one or more of Sections 8.08, 8.09, 8.10,
and 8.11 of the Credit Agreement), 9.04(i)(x), 9.04(ii) or 9.05 of the Credit
Agreement (each of the foregoing Events of Default, a "Financial Covenant Event
of Default") until, and shall be paid by Silgan to S&H on, the earliest to occur
of (x) the first date after receipt of such Notice upon which no Financial
Covenant Event of Default to which the Notice related or otherwise known to S&H
or Silgan shall be in existence (and so long as no such Financial Covenant Event
of Default would be in existence after giving effect to the payment of such
unpaid portion of the Quarterly Management Fee), (y) the first date occurring
180 days or more after receipt by Silgan of a written notice from the Agent
stating that no Event of Default exists under Section 9.01 of the Credit
Agreement, or (z) the date that Silgan, Containers, Plastics,
California-Washington Can Corporation, a wholly owned subsidiary of Containers,
and SCCW Can Corporation, a wholly owned subsidiary of Containers, shall have
paid all outstanding Obligations (as such term is defined under the Credit
Agreement). In the event that a Notice is delivered by the Agent, Silgan shall
pay to S&H that portion of
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any unpaid Quarterly Management Fee that has accrued with respect to that
portion of such calendar quarter prior to the occurrence of any Financial
Covenant Event of Default to which such Notice relates.
(c) Nothing contained in Paragraph 2(b) shall prevent the
Agent from giving successive Notices of the type described in Paragraph 2(b) (in
which case the rules set forth in Paragraph 2(b) shall apply to, and the time
periods set forth therein shall begin to run on, the date of such subsequent
Notice); provided that only one Notice relating to a single Financial Covenant
Event of Default and all other Financial Covenant Events of Default in existence
at the date of the giving of any such Notice may be given. Notwithstanding
anything to the contrary stated herein, if at any time after the giving of
Notice by the Agent to Silgan, S&H shall certify in writing to Silgan that all
Financial Covenant Events of Default to which such Notice relates have been
cured or waived, and that S&H knows of no other Financial Covenant Event of
Default then in existence, then Silgan shall, unless it knows of the existence
of a Financial Covenant Event of Default which has not yet been cured or waived,
pay to S&H any accrued and unpaid Quarterly Management Fee or portion thereof in
the manner set forth in Paragraph 2(g) hereof unless a Financial Covenant Event
of Default would result from such payment. S&H shall not be required to deliver
any such certification to Silgan upon the occurrence of the dates or events set
forth in clauses (y) or (z) of Paragraph 2(b), and promptly after the occurrence
of such date or event, Silgan will
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pay to S&H any accrued and unpaid Quarterly Management Fee or portion thereof.
(d) For any given calendar year during the term of this
Agreement, the Scheduled Amount and the Maximum Amount for such calendar year
will be the amounts set forth in Schedule I hereto.
(e) In addition to the Monthly Management Fee and the
Quarterly Management Fee, Silgan shall also reimburse S&H in an amount equal to
all out-of-pocket expenses paid by S&H in providing the Services hereunder,
including fees and expenses paid to consultants, subcontractors and other third
parties, in connection with such Services. Such expenses shall be payable by
Silgan to S&H monthly in arrears.
(f) (i) Not later than fifteen (15) days after the end of
each calendar month during the term hereof with respect to the Monthly
Management Fee and (ii) not later than thirty (30) days after the end of each
full calendar quarter during the term hereof with respect to the Quarterly
Management Fee, S&H shall furnish Silgan with a bill for an amount equal to the
Monthly Management Fee and the Quarterly Management Fee, respectively, then
owing with respect to periods ended on or before the end of such calendar month
or such calendar quarter.
(g) Each bill furnished to Silgan hereunder shall be paid
in full within thirty (30) days of the receipt of such bill, except that any
accrued and unpaid Quarterly Management Fee or portion thereof shall be paid on
the earliest date on which such payment is permitted to be made pursuant to
Paragraphs 2(a),
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2(b) and 2(c) hereof. All payments of such bills shall be sent to:
S&H Inc.
4 Landmark Square
Suite 400
Stamford, CT 06901
Attention: R. Philip Silver
or to such other address as S&H may specify from time to time by written notice
to Silgan.
(h) All fees and expenses paid to S&H by Holdings,
Containers and Plastics, pursuant to their respective Affiliate Management
Services Agreements with S&H, shall be credited to the Monthly Management Fee,
the Quarterly Management Fee and the expenses referred to in Paragraphs 2(a) and
2(e) hereof.
(i) For purposes of this Section 2, EBDIT shall mean, for
any period, the consolidated net income of Holdings and its subsidiaries, before
interest expense and provision for income taxes and without giving effect to any
extraordinary non-cash gains or extraordinary non-cash losses and any
adjustments resulting from changes in the value of employee stock options and/or
stock appreciation rights, and adjusted by adding thereto (i) the amount of any
fees and expenses paid pursuant to this Agreement or the Affiliate Management
Services Agreements, (ii) the amount of all charges and expenses incurred in
connection with any refinancing, restructuring, recapitalization or
reorganization involving Holdings and its subsidiaries (which charges and
expenses have been charged against the consolidated net income of Holdings or
its subsidiaries), and (iii) the amount
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of all amortization of intangibles, covenants not to compete, goodwill and debt
financing costs and all depreciation (which amortization and depreciation have
been charged against the consolidated net income of Holdings and its
subsidiaries, before interest expense), computed in accordance with generally
accepted accounting principles.
3. Direct Expenses.
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It is understood that the consideration to be paid by Silgan
to S&H for Services hereunder shall not be in lieu of, and that Silgan shall be
directly liable for, direct expenses incurred by Silgan, or by S&H on Silgan's
behalf (other than the out-of-pocket expenses billed to Silgan by S&H pursuant
to Paragraph 2(e) hereof), for services rendered to Silgan by third parties,
including, but not limited to, legal and accounting fees and insurance premiums.
Silgan shall pay any compensation (including employee benefit costs and any
related out-of-pocket expenses) to officers and other employees of Silgan who
provide substantially full-time services to Silgan, other than Messrs. R. Philip
Silver ("Silver"), D. Greg Horrigan ("Horrigan"), Harley Rankin, Jr. ("Rankin")
and Harold J. Rodriguez, Jr. ("Rodriguez") who shall receive no salaries (it
being understood, however, that Silgan shall reimburse S&H in respect of
compensation paid by S&H to Messrs. Rankin and Rodriguez consistent with the
reimbursement therefor by Silgan to S&H in 1996), notwithstanding that said
officers and other employees may simultaneously be officers or employees of S&H
or one of its subsidiaries or Affiliates.
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4. Term.
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(a) The term of this Agreement shall commence on the date
hereof and shall continue until June 30, 1999. Therefore, the term of this
Agreement shall be automatically renewed for successive one-year terms unless
prior to the date that is 180 days prior to the expiration of the initial term
or the then current one-year term, as the case may be, either party shall have
given the other party written notice of its election not to renew the term of
this Agreement (it being understood that the determination by Silgan whether to
give such written notice of its election not to renew the term of this Agreement
will be made by the independent members of the Board of Directors of Holdings).
For purposes hereof, the independent members of the Board of Directors of
Holdings shall not include any employee or affiliate of S&H, any officer of
Holdings or any member of the Board of Directors that is affiliated with any
entity that is receiving or is entitled to receive any payment from Holdings
under this Agreement or any payment from S&H in connection with this Agreement.
The term of this Agreement may be terminated prior to the expiration of the
initial term or the then current one-year term, as the case may be, by written
notice to the other party as follows: (i) by Silgan for Cause, (ii) by S&H for
Cause, (iii) by Silgan for any reason other than Cause, upon at least 180 days
prior written notice, (iv) by S&H for any reason other than (A) Cause or (B)
because of a Change of Control, upon at least 180 days prior written notice, or
(v) by S&H at any time after a Change of Control.
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(b) Upon termination of any Affiliate Management Services
Agreement by the party thereto other than S&H for any reason other than "Cause"
as defined in such Affiliate Management Services Agreement, this Agreement shall
be deemed to have been terminated by Silgan pursuant to clause (iii) of the last
sentence of Section 4(a) hereof, effective as of the date of termination of such
Affiliate Management Services Agreement. Upon termination by S&H of any
Affiliate Management Services Agreement for any reason other than "Cause" or
because of a "Change of Control," each as defined in such Affiliate Management
Services Agreement, this Agreement shall be deemed to have been terminated by
S&H pursuant to clause (iv) of the last sentence of Section 4(a) hereof,
effective as of the date of termination of such Affiliate Management Services
Agreement.
(c) For purposes of this Section 4, a "Change of Control"
shall be deemed to have occurred when a majority of the Board of Directors of
Holdings shall not consist of "Continuing Holdings Directors," which shall mean
(i) the directors of Holdings on the date hereof and (ii) each other director of
Holdings who is either recommended, approved or nominated for election, or is
elected, to the Board of Directors of Holdings by a majority of the other
Continuing Holdings Directors.
5. Events of Default.
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Any one of the following defaults shall constitute an Event of Default
(other than by reason of an Event of Force Majeure in the case of each of
Paragraphs 5(a)-(f)):
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(a) (i) The failure or refusal of S&H to comply with or
perform its obligations under this Agreement if such failure or refusal
continues unremedied for more than 60 days after written notice of the existence
of such failure or refusal shall have been given to S&H by Silgan or (ii) the
failure or refusal of Silgan to comply with or perform its obligations under
this Agreement if such failure or refusal continues unremedied for more than 60
days after written notice of the existence of such failure or refusal shall have
been given to Silgan by S&H;
(b) S&H or Holdings is declared insolvent or bankrupt by
any court of competent jurisdiction, or a voluntary petition in bankruptcy is
filed in any court of competent jurisdiction by either of them;
(c) An involuntary petition in bankruptcy is filed in any
court of competent jurisdiction against S&H or Holdings and within forty-five
(45) days thereafter shall not have been dismissed or stayed (and, in the event
of any such stay, such stay shall not have been set aside and the petition
dismissed within forty-five (45) days after the stay shall have been granted);
(d) A trustee or receiver is appointed for S&H or Holdings
and remains undischarged for more than forty-five (45) days after being
appointed;
(e) A proceeding seeking a reorganization, arrangement,
liquidation or dissolution of S&H or Holdings is instituted in a court of
competent jurisdiction and remains
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undismissed for more than forty-five (45) days after being instituted;
(f) S&H or Holdings voluntarily seeks any such
reorganization or arrangement or makes an assignment for the benefit of
creditors; or
(g) Death or permanent disability of both Horrigan and
Silver. For the purposes of this Agreement, "permanent disability" shall mean
the inability of Horrigan or Silver, as the case may be, by reason of illness or
injury to perform substantially all of his duties as Chairman of the Board or as
President of Holdings (or in performing his duties in any other office in
Holdings or any of its respective Affiliates to which he may be duly appointed)
during any continuous period of one hundred eighty (180) days.
6. Cause.
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(a) The occurrence of any of the following shall
constitute "Cause" for purposes of clause (i) of the last sentence of Section
4(a) of this Agreement:
(i) An Event of Default, except for the Event of Default
described in Section 5(a)(ii) of this Agreement; or
(ii) Criminal conduct or gross negligence by S&H in the
performance of the Services; or
(iii) The termination of any Affiliate Management Services
Agreement by Holdings, Containers or Plastics, as the case may
be, for "Cause" as defined therein.
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(b) The occurrence of either of the following shall
constitute "Cause" for purposes of clause (ii) of the last sentence of Section
4(a) of this Agreement:
(i) An Event of Default, except for the Event of Default
described in Section 5(a)(i) of this Agreement; or
(ii) The termination of any Affiliate Management Services
Agreement by S&H for "Cause" as defined therein.
7. Remedies.
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(a) In the event this Agreement is terminated (or deemed
terminated) by Silgan prior to June 30, 1999 for any reason other than for
Cause, Silgan shall be required to pay to S&H as liquidated damages, within
thirty (30) days of such termination, the present value of the sum of (i) the
Monthly Management Fee (or any portion thereof) that would have been payable by
Silgan to S&H for each month (or any portion thereof) from the date of such
termination through June 30, 1999 and (ii) the Quarterly Management Fee (or any
portion thereof) that would have been payable by Silgan to S&H for each quarter
(or portion thereof) from the date of such termination through June 30, 1999, in
each case calculated based on a discount rate of eight percent (8%) per annum.
(b) In the event this Agreement is terminated by Silgan
after June 30, 1999 for any reason other than for Cause, Silgan shall be
required to pay to S&H as liquidated damages, within thirty (30) days of such
termination, the present value of the sum of (i) the Monthly Management Fee (or
any portion thereof) payable by Silgan to S&H for each month (or any portion
thereof) from the date of such termination through the end of the then
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current one-year term and (ii) the Quarterly Management Fee (or any portion
thereof) payable by Silgan to S&H for each quarter (or portion thereof) from the
date of such termination through the end of the then current one-year term, in
each case calculated based on a discount rate of eight percent (8%) per annum.
(c) The amounts described in clauses (i) and (ii) of
Sections 7(a) and 7(b) shall be calculated based upon the projections of EBDIT
for the period from the date of such termination through June 30, 1999 or
through the end of the then current one-year term, as the case may be, which
projections are (1) included in Holdings' most recently prepared forecast
statements required under the Credit Agreement or (2) if the Credit Agreement is
not in existence, included in Holdings' most recently prepared forecast
statements presented to its Board of Directors (provided such forecast
statements are prepared on a basis consistent with the requirements under the
Credit Agreement that was in effect last).
8. Force Majeure.
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The term "Event of Force Majeure" as used herein shall mean
any failure of a party to perform any of its obligations hereunder if such
failure is due to circumstances beyond its control, including but not limited
to, any requisition by any government authority, act of war, strike, boycott,
lockout, picketing, riot, sabotage, civil commotion, insurrection, epidemic,
disease, act of God, fire, flood, accident, explosion, earthquake, storm,
failure of public utilities or common
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carriers, mechanical failure, embargo, or prohibition imposed by any
governmental body or agency having authority over the party, which would have
constituted an Event of Default but for the fact that such events constituted an
Event of Force Majeure. The party affected by an Event of Force Majeure shall
give prompt notice thereof to the other parties hereto and each party shall use
its best efforts to minimize the duration and consequences of, and to eliminate,
any such Event of Force Majeure. At such time as an Event of Force Majeure no
longer exists, the respective obligations of the parties hereto shall be
reinstated and this Agreement shall continue in full force and effect.
9. Insurance.
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S&H agrees that for the term of this Agreement it shall cause
Silgan to obtain and maintain insurance for such risks and in such amounts
similar to companies of comparable size which are engaged in similar business
activities, provided that S&H shall be deemed to be in compliance with the
provisions of this paragraph if Silgan maintains a level of insurance which
complies with the applicable terms of the Credit Agreement.
10. Indemnification.
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(a) Silgan shall indemnify to the fullest extent permitted
by law (as now or hereafter in effect) S&H and each of its Affiliates, officers,
directors, employees, consultants and subcontractors, and any Person controlling
S&H and each of its Affiliates or any such consultant or subcontractor (each, an
"S&H Indemnitee," and collectively, the "S&H Indemnitees") to the extent that
any S&H Indemnitee is made, or threatened to be made,
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a defendant to, or is involved in any manner in, any action, suit or proceeding
(whether civil, criminal, administrative, investigative or otherwise) by reason
of the fact that such S&H Indemnitee is or was an agent of Holdings.
(b) In furtherance and not in limitation of the powers
conferred by statute:
(i) Silgan may purchase and maintain insurance on behalf
of any S&H Indemnitee as an agent of Silgan against any
liability asserted against any S&H Indemnitee and incurred by
any S&H Indemnitee in such capacity, or arising out of any S&H
Indemnitee's status as such, whether or not Silgan would have
the power to indemnify such S&H Indemnitee against such
liability under the provisions of law; and
(ii) Silgan may create a trust fund, grant a security
interest and/or use other means (including, without
limitation, letters of credit, surety bonds and/or other
similar arrangements), as well as enter into contracts
providing indemnification to the full extent authorized or
permitted by law and including as part thereof provisions with
respect to any or all of the foregoing to ensure the payment
of such amounts as may become necessary to effect
indemnification as provided therein, or elsewhere.
(c) The manner of any indemnification under this Agreement
shall be in accordance with Section 2.8 of the Stockholders Agreement dated as
of December 21, 1993 among Silver, Horrigan, The Morgan Stanley Leveraged Equity
Fund II,
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L.P., Bankers Trust New York Corporation, First Plaza Group Trust and Holdings
(as amended from time to time, the "Stockholders Agreement").
11. Noncompetition.
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(a) During the term of this Agreement, S&H hereby agrees
that it will not, directly or indirectly, own, render services to, manage,
operate, control, or participate in the ownership, management, operation or
control of a business that is engaged in any "Business". For purposes hereof,
the term "Business" shall mean the manufacture and sale anywhere in the world of
consumer goods packaging products.
(b) In the event that this Agreement is terminated by S&H
pursuant to clause (iv) of the last sentence of Section 4(a) hereof, S&H hereby
agrees that, for a period of one year beginning on the date of such termination,
it will not, directly or indirectly: (i) own, render services to, manage,
operate, control, or participate in the ownership, management, operation or
control of a business that is engaged in any Business; (ii) interfere with any
customer or supplier relationship between Holdings and/or its subsidiaries and
any other person or business entity; or (iii) disclose or use any confidential
or proprietary information relating to Holdings and its subsidiaries'
businesses, except for any information already in the public domain through no
act of S&H and except as may be required by law or governmental or court order.
(c) Notwithstanding anything herein to the contrary,
nothing herein, however, shall restrict S&H from making
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any investments in any company whose stock is listed on a national securities
exchange or actively traded in the over-the-counter markets, so long as such
investment does not give S&H the right to control or influence the policy
decisions of any such company engaged in any Business.
(d) If any particular provision or portion of this Section
11 shall be adjudicated to be invalid or unenforceable, this Section 11 shall be
deemed amended to delete therefrom such provision or portion adjudicated to be
invalid or unenforceable, and such amendment will apply only with respect to the
operation of such provision or portion in the particular jurisdiction in which
such adjudication was sought.
(e) The parties recognize that the performance of the
obligations under this Section 11 by S&H is special, unique and extraordinary in
character, and that in the event of a breach, or threatened breach, of any of
the terms and conditions of this Section 11, Silgan shall be entitled, if it so
elects, in addition to any other remedies available to Silgan, to enforce the
specific performance thereof or to enjoin any breach thereof.
12. Notices.
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All notices and other communications required by or
specifically provided for in this Agreement shall be in writing and shall be
deemed to have been given (a) when delivered in person, (b) when sent by telex
or telecopier with answerback received, or (c) seventy-two (72) hours after
having been deposited in the U.S. mails, certified mail with return receipt
requested and postage prepaid, and in any case addressed to the
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party for which it is intended at that party's address as set forth below, or at
such other address as the addressee shall have designated by notice hereunder to
the other party.
If to S&H:
S&H Inc.
4 Landmark Square
Suite 400
Stamford, CT 06901
Attention: R. Philip Silver
If to Silgan:
Silgan Corporation
4 Landmark Square
Suite 400
Stamford, CT 06901
Attention: R. Philip Silver
If a notice is sent to any of the above, a copy shall be sent to the
following:
Winthrop, Stimson, Putnam & Roberts
Financial Centre
695 East Main Street
P.O. Box 6760
Stamford, CT 06904-6760
Attention: Frank W. Hogan, III, Esq.
Any notice or request sent by telecopier or similar facsimile telecommunication
shall be confirmed promptly by the sending of a copy of such notice or request
to the addressee thereof by prepaid certified mail, return receipt requested.
13. Definitions.
-----------
Terms not defined herein which are defined in the Stockholders
Agreement shall have the meanings ascribed to them therein.
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14. Amendment; Assignment; Binding Effect.
-------------------------------------
This Agreement may be amended or modified only by a written
instrument signed by the parties hereto. No party shall assign or transfer this
Agreement, in whole or in part, or any of such party's rights or obligations
hereunder, to any other person or entity without the prior written consent of
the other party hereto, except that S&H may transfer or assign all of its rights
and obligations hereunder to any entity directly or indirectly succeeding to S&H
by merger, consolidation or reorganization. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective permitted
assigns.
15. Waiver; Severability.
--------------------
The failure of a party to insist in any instance upon the
strict and punctual performance of any provision of this Agreement shall not
constitute a continuing waiver of such provision. No party shall be deemed to
have waived any right, power, or privilege under this Agreement or any
provisions hereof unless such waiver shall have been in writing and duly
executed by the party to be charged with such waiver, and such waiver shall be a
waiver only with respect to the specific instance involved and shall in no way
impair the rights of the waiving party or the obligations of any other party in
any other respect or at any other time. If any provision of this Agreement shall
be waived, or be invalid, illegal or unenforceable, the remaining provisions of
this Agreement shall be unaffected thereby and shall remain binding and in full
force and effect.
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16. Relationship of the Parties.
---------------------------
In all matters relating to this Agreement, each party hereto
shall be solely responsible for the acts of its employees, and employees of one
party shall not be considered employees of the other party. Except as otherwise
provided herein, no party shall have any right, or authority to create any
obligation, express or implied, on behalf of any other party.
17. Governing Law.
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This Agreement shall be governed by and construed in
accordance with the laws of the State of New York without giving effect to its
conflict of laws rules and laws.
18. Entire Agreement; Termination of Original Management
Services Agreement.
----------------------------------------------------
This Agreement constitutes the entire agreement between the
parties hereto with respect to the subject matter hereof, and supersedes all
prior agreements and understandings, either oral or written, with respect
thereto. Upon the execution and delivery of this Agreement, the Original
Management Services Agreement shall be terminated and shall be of no effect
whatsoever.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first above written.
S&H INC.
By: /s/ R. Philip Silver
________________________________
Title: President and Co-Chief
Executive Officer
SILGAN CORPORATION
By: /s/ Harley Rankin, Jr.
________________________________
Title: Executive Vice President,
Chief Financial Officer
and Treasurer
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SCHEDULE I
(000's Omitted)
Scheduled Amount1/ Maximum Amount1/
----------------- ----------------
1997 $ 89,500 1997 $ 100,504
1998 95,500 1998 102,964
1999 101,500 1999 105,488
2000 108,653 2000 108,653
- -------- 1 For each calendar year after 2000, the Scheduled Amount for such
calendar year shall be an amount equal to the Maximum Amount for such calendar
year. For each calendar year after 2000, the Maximum Amount for such calendar
year shall be equal to one hundred and three percent (103%) of the Maximum
Amount for the prior calendar year.