EXHIBIT 10.27
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 PLASTICS CORPORATION, a
Delaware corporation ("Plastics").
W I T N E S S E T H:
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WHEREAS, S&H and Plastics have entered into the Amended and
Restated Management Services Agreement dated as of December 21, 1993 (the
"Original Management Services Agreement"), pursuant to which S&H provides
general management, supervision, administrative and other services to Plastics
in accordance with the terms of the Original Management Services Agreement;
WHEREAS, S&H also is a party to an Amended and Restated
Management Services Agreement dated as of December 21, 1993 with each of Silgan
Holdings Inc. ("Holdings"), Silgan Corporation, a wholly owned subsidiary of
Holdings and the parent company of Plastics ("Silgan"), and Silgan Containers
Corporation, a wholly owned subsidiary of Silgan ("Containers");
WHEREAS, S&H and each of Holdings, Silgan and Containers are
entering into an amended and restated management services agreement dated as of
the date hereof (collectively, as so amended and restated, the "Affiliate
Management Services Agreements"); and
WHEREAS, in contemplation of the consummation of an initial
public offering of the common stock of Holdings pursuant to an effective
registration statement under the Securities Act of 1933, as amended, S&H and
Plastics desire to amend and restate hereby the Original Management Services
Agreement.
NOW, THEREFORE, in consideration of the premises and the
mutual agreements contained herein, S&H and Plastics agree as follows:
1. Management Services.
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(a) S&H and Plastics hereby agree that, during the period
beginning on the date hereof and continuing throughout the term hereof, S&H and
its Affiliates shall provide to Plastics general management, supervision and
administrative services, including, without limitation, the preparation of the
annual and long-term business plans, and perform such other duties and provide
such other services as Plastics shall be permitted to request of S&H pursuant to
the Certificate of Incorporation or By-Laws of Holdings or pursuant to
applicable law, which power and authority Plastics hereby grants to S&H
("General Management Services"). (The General Management Services are
hereinafter collectively referred to as the "Services" and individually as a
"Service").
(b) Any Service hereunder shall be provided to Plastics
only by S&H or its Affiliates or such consultants, subcontractors or agents as
may be selected from time to time by S&H to assist S&H in its provision of the
Services. It is understood and agreed that S&H may retain the services of Morgan
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Stanley & Co. Incorporated or another suitable investment bank as financial
advisor to Plastics or as an underwriter or placement agent for offerings of
securities by Plastics.
2. Fees; Payment.
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(a) In consideration for General Management Services
provided by S&H to Plastics hereunder, Plastics shall pay to S&H aggregate fees
or compensation therefor (not including any related out-of-pocket expenses), (i)
on a monthly basis, an amount equal to Plastics' Proportionate Percentage (as
defined below) of five thousand dollars ($5,000) plus 2.475% of EBDIT (as
defined in Paragraph 2(i) hereof) for such calendar month until EBDIT for the
calendar year to date has reached the Scheduled Amount (as defined in Paragraph
2(d) hereof) for such calendar year, and 1.65% of EBDIT for such calendar month
to the extent that EBDIT for the calendar year to date exceeds the Scheduled
Amount but is not greater than the Maximum Amount (as defined in Paragraph 2(d)
hereof) (the "Monthly Management Fee"); and (ii) on a quarterly basis, an amount
equal to Plastics Proportionate Percentage of 2.475% of EBDIT for such calendar
quarter until EBDIT for the calendar year to date has reached the Scheduled
Amount, and l.65% of EBDIT for such calendar quarter to the extent that EBDIT
for the calendar year to date exceeds the Scheduled Amount but is not greater
than the Maximum Amount (the "Quarterly Management Fee"). For purposes of this
Section 2, "Proportionate Percentage" means such percentage of EBDIT for a given
period that is attributable to the results of Plastics for such period.
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(b) Such Quarterly Management Fee shall continue to
accrue, but shall not be paid, to S&H by Plastics in the event that, and from
the date on which, Plastics or Silgan shall have received written notice
("Notice") from the Agent (as defined below) that an Event of Default (as such
term is defined in the Credit Agreement, dated as of August 1, 1995, among
Silgan, Containers, Plastics, the lenders from time to time party thereto,
Bankers Trust Company, as Administrative Agent and as a Co-Arranger (the
"Agent"), and Bank of America Illinois, as Documentation Agent and as a
Co-Arranger, as in effect from time to time, and any refinancings, renewals,
amendments or extensions thereof (the "Credit Agreement")) exists under any of
Sections 9.01, 9.03 (but only to the extent resulting from the violation of one
or more of Sections 8.08, 8.09, 8.10, and 8.11 of the Credit Agreement),
9.04(i)(x), 9.04(ii) or 9.05 of the Credit Agreement (each of the foregoing
Events of Default, a "Financial Covenant Event of Default") until, and shall be
paid by Plastics to S&H on, the earliest to occur of (x) the first date after
receipt of such Notice upon which no Financial Covenant Event of Default to
which the Notice related or otherwise known to S&H or Plastics shall be in
existence (and so long as no such Financial Covenant Event of Default would be
in existence after giving effect to the payment of such unpaid portion of the
Quarterly Management Fee), (y) the first date occurring 180 days or more after
receipt by Silgan of a written notice from the Agent stating that no Event of
Default exists under Section 9.01 of the Credit Agreement, or (z) the date that
Silgan, Containers,
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Plastics, California-Washington Can Corporation, a wholly owned subsidiary of
Containers, and SCCW Can Corporation, a wholly owned subsidiary of Containers,
shall have paid all outstanding Obligations (as such term is defined under the
Credit Agreement). In the event that a Notice is delivered by the Agent,
Plastics shall pay to S&H that portion of any unpaid Quarterly Management Fee
that has accrued with respect to that portion of such calendar quarter prior to
the occurrence of any Financial Covenant Event of Default to which such Notice
relates.
(c) Nothing contained in Paragraph 2(b) shall prevent the
Agent from giving successive Notices of the type described in Paragraph 2(b) (in
which case the rules set forth in Paragraph 2(b) shall apply to, and the time
periods set forth therein shall begin to run on, the date of such subsequent
Notice); provided that only one Notice relating to a single Financial Covenant
Event of Default and all other Financial Covenant Events of Default in existence
at the date of the giving of any such Notice may be given. Notwithstanding
anything to the contrary stated herein, if at any time after the giving of
Notice by the Agent to Silgan, S&H shall certify in writing to Silgan that all
Financial Covenant Events of Default to which such Notice relates have been
cured or waived, and that S&H knows of no other Financial Covenant Event of
Default then in existence, then Plastics shall, unless it knows of the existence
of a Financial Covenant Event of Default which has not yet been cured or waived,
pay to S&H any accrued and unpaid Quarterly Management Fee or portion thereof in
the manner set forth in Paragraph 2(g)
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hereof unless a Financial Covenant Event of Default would result from such
payment. S&H shall not be required to deliver any such certification to Silgan
upon the occurrence of the dates or events set forth in clauses (y) or (z) of
Paragraph 2(b), and promptly after the occurrence of such date or event,
Plastics will pay to S&H any accrued and unpaid Quarterly Management Fee or
portion thereof.
(d) For any given calendar year during the term of this
Agreement, the Scheduled Amount and the Maximum Amount for such calendar year
will be the amounts set forth in Schedule I hereto.
(e) In addition to the Monthly Management Fee and the
Quarterly Management Fee, Plastics shall also reimburse S&H in an amount equal
to all out-of-pocket expenses paid by S&H in providing the Services hereunder,
including fees and expenses paid to consultants, subcontractors and other third
parties, in connection with such Services. Such expenses shall be payable by
Plastics to S&H monthly in arrears.
(f) (i) Not later than fifteen (15) days after the end of
each calendar month during the term hereof with respect to the Monthly
Management Fee and (ii) not later than thirty (30) days after the end of each
full calendar quarter during the term hereof with respect to the Quarterly
Management Fee, S&H shall furnish Plastics with a 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.
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(g) Each bill furnished to Plastics 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), 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 Plastics.
(h) All fees and expenses paid to S&H by Holdings and
Silgan pursuant to their respective Affiliate Management Services Agreements
with S&H, shall be credited to the Monthly Management Fee, the Quarterly
Management Fee and the expenses referred to in Paragraphs 2(a) and 2(e) hereof.
(i) For purposes of this Section 2, EBDIT shall mean, for
any period, the consolidated net income of Holdings and its subsidiaries, before
interest expense and provision for income taxes and without giving effect to any
extraordinary non-cash gains or extraordinary non-cash losses and any
adjustments resulting from changes in the value of employee stock options and/or
stock appreciation rights, and adjusted by adding thereto (i) the amount of any
fees and expenses paid pursuant to this Agreement or the Affiliate Management
Services Agreements, (ii) the amount of all charges and expenses incurred in
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connection with any refinancing, restructuring, recapitalization or
reorganization involving Holdings and its subsidiaries (which charges and
expenses have been charged against the consolidated net income of Holdings or
its subsidiaries), and (iii) the amount of all amortization of intangibles,
covenants not to compete, goodwill and debt financing costs and all depreciation
(which amortization and depreciation have been charged against the consolidated
net income of Holdings and its subsidiaries, before interest expense), computed
in accordance with generally accepted accounting principles.
3. Direct Expenses.
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It is understood that the consideration to be paid by Plastics
to S&H for Services hereunder shall not be in lieu of, and that Plastics shall
be directly liable for, direct expenses incurred by Plastics, or by S&H on
Plastics' behalf (other than the out-of-pocket expenses billed to Plastics by
S&H pursuant to Paragraph 2(e) hereof), for services rendered to Plastics by
third parties, including, but not limited to, legal and accounting fees and
insurance premiums. Plastics shall pay any compensation (including employee
benefit costs and any related out-of-pocket expenses) to officers and other
employees of Plastics who provide substantially full-time services to Plastics,
other than Messrs. R. 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 Plastics shall
reimburse S&H in respect of compensation paid by S&H to Messrs. Rankin and
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Rodriguez consistent with the reimbursement therefor by Plastics to S&H in
1996), notwithstanding that said officers and other employees may simultaneously
be officers or employees of S&H or one of its subsidiaries or Affiliates.
4. Term.
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(a) The term of this Agreement shall commence on the date
hereof and shall continue until June 30, 1999. Thereafter, the term of this
Agreement shall be automatically renewed for successive one-year terms unless
prior to the date that is 180 days prior to the expiration of the initial term
or the then current one-year term, as the case may be, either party shall have
given the other party written notice of its election not to renew the term of
this Agreement (it being understood that the determination by Plastics whether
to give such written notice of its election not to renew the term of this
Agreement will be made by the independent members of the Board of Directors of
Holdings). For purposes hereof, the independent members of the Board of
Directors of Holdings shall not include any employee or affiliate of S&H, any
officer of Holdings or any member of the Board of Directors that is affiliated
with any entity that is receiving or is entitled to receive any payment from
Holdings under this Agreement or any payment from S&H in connection with this
Agreement. The term of this Agreement may be terminated prior to the expiration
of the initial term or the then current one-year term, as the case may be, by
written notice to the other party as follows: (i) by Plastics for Cause, (ii) by
S&H for Cause, (iii) by Plastics for any reason other than Cause, upon at
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least 180 days prior written notice, (iv) by S&H for any reason other than (A)
Cause or (B) because of a Change of Control, upon at least 180 days prior
written notice, or (v) by S&H at any time after a Change of Control.
(b) Upon termination of any Affiliate Management Services
Agreement by the party thereto other than S&H for any reason other than "Cause"
as defined in such Affiliate Management Services Agreement, this Agreement shall
be deemed to have been terminated by Plastics pursuant to clause (iii) of the
last sentence of Section 4(a) hereof, effective as of the date of termination of
such Affiliate Management Services Agreement. Upon termination by S&H of any
Affiliate Management Services Agreement for any reason other than "Cause" or
because of a "Change of Control," each as defined in such Affiliate Management
Services Agreement, this Agreement shall be deemed to have been terminated by
S&H pursuant to clause (iv) of the last sentence of Section 4(a) hereof,
effective as of the date of termination of such Affiliate Management Services
Agreement.
(c) For purposes of this Section 4, a "Change of Control"
shall be deemed to have occurred when a majority of the Board of Directors of
Holdings shall not consist of "Continuing Holdings Directors," which shall mean
(i) the directors of Holdings on the date hereof and (ii) each other director of
Holdings who is either recommended, approved or nominated for election, or is
elected, to the Board of Directors of Holdings by a majority of the other
Continuing Holdings Directors.
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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)):
(a) (i) The failure or refusal of S&H to comply with or
perform its obligations under this Agreement if such failure or refusal
continues unremedied for more than 60 days after written notice of the existence
of such failure or refusal shall have been given to S&H by Plastics or (ii) the
failure or refusal of Plastics to comply with or perform its obligations under
this Agreement if such failure or refusal continues unremedied for more than 60
days after written notice of the existence of such failure or refusal shall have
been given to Plastics by S&H;
(b) S&H or Holdings is declared insolvent or bankrupt by
any court of competent jurisdiction, or a voluntary petition in bankruptcy is
filed in any court of competent jurisdiction by either of them;
(c) An involuntary petition in bankruptcy is filed in any
court of competent jurisdiction against S&H or Holdings and within forty-five
(45) days thereafter shall not have been dismissed or stayed (and, in the event
of any such stay, such stay shall not have been set aside and the petition
dismissed within forty-five (45) days after the stay shall have been granted);
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(d) A trustee or receiver is appointed for S&H or Holdings
and remains undischarged for more than forty-five (45) days after being
appointed;
(e) A proceeding seeking a reorganization, arrangement,
liquidation or dissolution of S&H or Holdings is instituted in a court of
competent jurisdiction and remains undismissed for more than forty-five (45)
days after being instituted;
(f) S&H or Holdings voluntarily seeks any such
reorganization or arrangement or makes an assignment for the benefit of
creditors; or
(g) Death or permanent disability of both 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
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(ii) Criminal conduct or gross negligence by S&H in the
performance of the Services; or
(iii) The termination of any Affiliate Management Services
Agreement by Holdings, Silgan, or Containers, as the case may
be, for "Cause" as defined therein.
(b) The occurrence of either of the following shall
constitute "Cause" for purposes of clause (ii) of the last sentence of Section
4(a) of this Agreement:
(i) An Event of Default, except for the Event of Default
described in Section 5(a)(i) of this Agreement; or
(ii) The termination of any Affiliate Management Services
Agreement by S&H for "Cause" as defined therein.
7. Remedies.
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(a) In the event this Agreement is terminated (or deemed
terminated) by Plastics prior to June 30, 1999 for any reason other than for
Cause, Plastics shall be required to pay to S&H as liquidated damages, within
thirty (30) days of such termination, the present value of the sum of (i) the
Monthly Management Fee (or any portion thereof) that would have been payable by
Plastics to S&H for each month (or any portion thereof) from the date of such
termination through June 30, 1999 and (ii) the Quarterly Management Fee (or any
portion thereof) that would have been payable by Plastics to S&H for each
quarter (or portion thereof) from the date of such termination through June 30,
1999, in each case calculated based on a discount rate of eight percent (8%) per
annum.
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(b) In the event this Agreement is terminated by Plastics
after June 30, 1999, for any reason other than for Cause, Plastics shall be
required to pay to S&H as liquidated damages, within thirty (30) days of such
termination, the present value of the sum of (i) the Monthly Management Fee (or
any portion thereof) payable by Plastics to S&H for each month (or any portion
thereof) from the date of such termination through the end of the then current
one-year term and (ii) the Quarterly Management Fee (or any portion thereof)
payable by Plastics to S&H for each quarter (or portion thereof) from the date
of such termination through the end of the then current one-year term, in each
case calculated based on a discount rate of eight percent (8%) per annum.
(c) The amounts described in clauses (i) and (ii) of
Sections 7(a) and 7(b) shall be calculated based upon the projections of
Holdings' EBDIT for the period from the date of such termination through June
30, 1999 or through the end of the then current one-year term, as the case may
be, which projections are (1) included in Holdings' most recently prepared
forecast statements required under the Credit Agreement or (2) if the Credit
Agreement is not in existence, included in Holdings' most recently prepared
forecast statements presented to its Board of Directors (provided such forecast
statements are prepared on a basis consistent with the requirements under the
Credit Agreement that was in effect last).
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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 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
Plastics to obtain and maintain insurance for such risks and in such amounts
similar to companies of comparable size which are engaged in similar business
activities, provided that S&H shall be deemed to be in compliance with the
provisions of this paragraph if Plastics maintains a level of insurance which
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complies with the applicable terms of the Credit Agreement.
10. Indemnification.
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(a) Plastics shall indemnify to the fullest extent
permitted by law (as now or hereafter in effect) S&H and each of its Affiliates,
officers, directors, employees, consultants and subcontractors, and any Person
controlling S&H and each of its Affiliates or any such consultant or
subcontractor (each, an "S&H Indemnitee," and collectively, the "S&H
Indemnitees") to the extent that any S&H Indemnitee is made, or threatened to be
made, a defendant to, or is involved in any manner in, any action, suit or
proceeding (whether civil, criminal, administrative, investigative or otherwise)
by reason of the fact that such S&H Indemnitee is or was an agent of Plastics.
(b) In furtherance and not in limitation of the powers
conferred by statute:
(i) Plastics may purchase and maintain insurance on behalf
of any S&H Indemnitee as an agent of Plastics against any
liability asserted against any S&H Indemnitee and incurred by
any S&H Indemnitee in such capacity, or arising out of any S&H
Indemnitee's status as such, whether or not Plastics would
have the power to indemnify such S&H Indemnitee against such
liability under the provisions of law; and
(ii) Plastics may create a trust fund, grant a security
interest and/or use other means (including, without
limitation, letters of credit, surety bonds and/or
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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, 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,
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operation or control of a business that is engaged in any Business; (ii)
interfere with any customer or supplier relationship between Holdings and/or its
subsidiaries and any other person or business entity; or (iii) disclose or use
any confidential or proprietary information relating to Holdings and its
subsidiaries' businesses, except for any information already in the public
domain through no act of S&H and except as may be required by law or
governmental or court order.
(c) Notwithstanding anything herein to the contrary,
nothing herein, however, shall restrict S&H from making any investments in any
company whose stock is listed on a national securities exchange or actively
traded in the over-the-counter markets, so long as such investment does not give
S&H the right to control or influence the policy decisions of any such company
engaged in any Business.
(d) If any particular provision or portion of this Section
11 shall be adjudicated to be invalid or unenforceable, this Section 11 shall be
deemed amended to delete therefrom such provision or portion adjudicated to be
invalid or unenforceable, and such amendment will apply only with respect to the
operation of such provision or portion in the particular jurisdiction in which
such adjudication was sought.
(e) The parties recognize that the performance of the
obligations under this Section 11 by S&H is special, unique and extraordinary in
character, and that in the event of a breach, or threatened breach, of any of
the terms and conditions of this Section 11, Plastics shall be entitled, if it
so elects,
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in addition to any other remedies available to Plastics, 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 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 Plastics:
Silgan Plastics 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.
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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.
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Terms not defined herein which are defined in the Stockholders
Agreement shall have the meanings ascribed to them therein.
14. Amendment; Assignment; Binding Effect.
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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
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shall be a waiver only with respect to the specific instance involved and shall
in no way impair the rights of the waiving party or the obligations of any other
party in any other respect or at any other time. If any provision of this
Agreement shall be waived, or be invalid, illegal or unenforceable, the
remaining provisions of this Agreement shall be unaffected thereby and shall
remain binding and in full force and effect.
16. Relationship of the Parties.
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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 PLASTICS CORPORATION
By: /s/ Harley Rankin, Jr.
________________________________
Title: Vice President
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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
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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.