EXHIBIT 4.5
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO SILGAN HOLDINGS INC. OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY OR SUCH OTHER REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO.
OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL DEBENTURE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF CEDE & CO. OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL DEBENTURE SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN SECTION 2.08 OF THE INDENTURE.
SILGAN HOLDINGS INC.
9% Senior Subordinated Debenture due 2009
CUSIP No.______________
ISIN No._______________
No.__ $_____________
SILGAN HOLDINGS INC., a Delaware corporation (the "Company", which term
includes any successor under the Indenture hereinafter referred to), for value
received, promises to pay to CEDE & Co., or its registered assigns, the
principal sum of _______________________ United States Dollars ($______________)
on June 1, 2009.
Interest Payment Dates: June 1 and December 1, commencing December 1, 2002.
Regular Record Dates: May 15 and November 15.
Reference is hereby made to the further provisions of this Debenture set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
IN WITNESS WHEREOF, the Company caused this Debenture to be signed manually
or by facsimile by its duly authorized officers.
SILGAN HOLDINGS INC.
By: ________________________________________
Name: Anthony J. Allott
Title: Executive Vice President and
Chief Financial Officer
By: ________________________________________
Name: Frank W. Hogan, III
Title: Senior Vice President, General
Counsel and Secretary
This is one of the 9% Senior Subordinated Debentures due 2009 described in
the within-mentioned Indenture.
Date: October __, 2002 National City Bank, N.A., as Trustee
By: ________________________________________
Authorized Signatory
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SILGAN HOLDINGS INC.
9% Senior Subordinated Debenture due 2009
1. Principal and Interest.
The Company will pay the principal of this Debenture on June 1, 2009.
The Company promises to pay interest on the principal amount of this
Debenture on each Interest Payment Date, as set forth below, at the rate per
annum shown above.
Interest will be payable semiannually (to the holders of record of the
Debentures at the close of business on the May 15 or November 15 immediately
preceding the Interest Payment Date) on each Interest Payment Date, commencing
December 1, 2002.
Interest on the Debentures will accrue from the most recent date to
which interest has been paid or, if no interest has been paid, from June 1,
2002; provided that, if there is no existing default in the payment of interest
and this Debenture is authenticated between a Regular Record Date referred to on
the face hereof and the next succeeding Interest Payment Date, interest shall
accrue from such Interest Payment Date. Interest will be computed on the basis
of a 360-day year of twelve 30-day months.
The Company shall pay interest on overdue principal and premium, if any,
and interest on overdue installments of interest, to the extent lawful, at a
rate per annum that is 2% in excess of the rate otherwise payable.
2. Method of Payment.
The Company will pay interest (except defaulted interest) on the
principal amount of the Debentures as provided above on each June 1 and December
1 to the persons who are Holders (as reflected in the Security Register at the
close of business on such May 15 and November 15 immediately preceding the
Interest Payment Date), in each case, even if the Debenture is cancelled on
registration of transfer or registration of exchange after such record date;
provided that, with respect to the payment of principal, the Company will make
payment to the Holder that surrenders this Debenture to a Paying Agent on or
after June 1, 2009.
The Company will pay principal, premium, if any, and as provided above,
interest in money of the United States that at the time of payment is legal
tender for payment of public and private debts. However, the Company may pay
principal, premium, if any, and interest by its check payable in such money. It
may mail an interest check to a Holder's registered address (as reflected in the
Security Register). If a payment date is a date other than a Business Day at a
place of payment, payment may be made at that place on the next succeeding day
that is a Business Day and no interest shall accrue for the intervening period.
3. Paying Agent and Registrar.
Initially, the Trustee will act as authenticating agent, Paying Agent
and Registrar. The Company may change any authenticating agent, Paying Agent or
Registrar without notice. The
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Company, any Subsidiary of the Company or any Affiliate of any of them may act
as Paying Agent, Registrar or co-Registrar.
4. Indenture; Limitations.
The Company issued the Debentures under an Indenture dated as of June 9,
1997, as modified by the First Supplemental Indenture dated as of June 24, 1997
and the Second Supplemental Indenture dated as of April 23, 2002 (as so modified
the "Indenture"), between the Company (as successor to Silgan Corporation), as
Issuer, and National City Bank, N.A.(as successor trustee to Bank One Trust
Company, N.A., which was the successor in interest to The First National Bank of
Chicago, the original trustee), as Trustee. Capitalized terms herein are used as
defined in the Indenture unless otherwise indicated. The terms of the Debentures
include those stated in the Indenture and those made part of the Indenture by
reference to the Trust Indenture Act. The Debentures are subject to all such
terms, and Holders are referred to the Indenture and the Trust Indenture Act for
a statement of all such terms. To the extent permitted by applicable law, in the
event of any inconsistency between the terms of this Debenture and the terms of
the Indenture, the terms of the Indenture shall control. All references in this
Debenture to specified percentages of an aggregate principal amount of the
outstanding Debentures will be deemed to be references to the same percentages
of the aggregate principal amount of the Debenture and any existing Debentures
previously issued under the Indenture, treated together as a class, then
outstanding.
The Debentures are unsecured, general obligations of the Company.
5. Redemption.
The Debentures will be redeemable, at the Company's option, in whole or
in part, at any time on or after June 1, 2002 and prior to maturity, upon not
less than 30 nor more than 60 days' prior notice mailed by first-class mail to
each Holder's last address as it appears in the Security Register, at the
following Redemption Prices (expressed in percentages of their principal
amount), plus accrued and unpaid interest, if any, to the Redemption Date
(subject to the right of Holders of record on the relevant Regular Record Date
that is on or prior to the Redemption Date to receive interest due on an
Interest Payment Date), if redeemed during the 12-month period commencing on
June 1 of the applicable year set forth below:
Year Redemption Price
---- ----------------
2002 ....................................... 104.500%
2003 ....................................... 103.375%
2004 ....................................... 102.250%
2005 ....................................... 101.125%
2006 and thereafter ........................ 100.000%
Debentures in original denominations larger than $1,000 may be redeemed
in part. On and after the Redemption Date, interest ceases to accrue on
Debentures or portions of Debentures called for redemption, unless the Company
defaults in the payment of the Redemption Price.
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6. Repurchase upon Change of Control.
Upon the occurrence of any Change of Control, each Holder shall have the
right, subject to the terms of the Indenture, to require the repurchase of its
Debentures by the Company in cash pursuant to the offer described in the
Indenture at a purchase price equal to 101% of the principal amount thereof plus
accrued and unpaid interest, if any, to the Payment Date.
A notice of such Change of Control will be mailed within 30 days after
any Change of Control occurs to each Holder at his last address as it appears in
the Security Register. Debentures in original denominations larger than $1,000
may be sold to the Company in part. On and after the Payment Date, interest
ceases to accrue on Debentures or portions of Debentures surrendered for
purchase by the Company, unless the Company defaults in the payment of the
purchase price.
7. Denominations; Transfer; Exchange.
The Debentures are in registered form without coupons in denominations
of $1,000 of principal amount and multiples of $1,000 in excess thereof. A
Holder may register the transfer or exchange of Debentures in accordance with
the Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and to pay any taxes and
fees required by law or permitted by the Indenture. The Registrar need not
register the transfer of or exchange any Debentures selected for redemption.
Also, it need not issue, register the transfer of or exchange any Debentures for
a period of 15 days before a selection of Debentures to be redeemed is made.
8. Persons Deemed Owners.
A Holder shall be treated as the owner of a Debenture for all purposes.
9. Unclaimed Money.
If money for the payment of principal, premium, if any, or interest
remains unclaimed for two years, the Trustee and the Paying Agent will pay the
money back to the Company at its request. After that, Holders entitled to the
money must look to the Company for payment, unless an abandoned property law
designates another Person, and all liability of the Trustee and such Paying
Agent with respect to such money shall cease.
10. Discharge Prior to Redemption or Maturity.
If the Company deposits with the Trustee money or U.S. Government
Obligations sufficient to pay the then outstanding principal of, premium, if
any, and accrued interest on the Debentures (a) to redemption or maturity, the
Company will be discharged from the Indenture and the Debentures, except in
certain circumstances for certain sections thereof, and (b) to the Stated
Maturity, the Company will be discharged from certain covenants set forth in the
Indenture.
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11. Amendment; Supplement; Waiver.
Subject to certain exceptions, the Indenture or the Debentures may be
amended or supplemented with the consent of the Holders of at least a majority
in aggregate principal amount of the Debentures then outstanding, and any
existing default or compliance with any provision may be waived with the consent
of the Holders of at least a majority in aggregate principal amount of the
Debentures then outstanding. Without notice to or the consent of any Holder, the
parties thereto may amend or supplement the Indenture or the Debentures to,
among other things, cure any ambiguity, defect or inconsistency and make any
change that does not materially and adversely affect the rights of any Holder.
12. Restrictive Covenants.
The Indenture imposes certain limitations on the ability of the Company
and its Restricted Subsidiaries, among other things, to Incur additional
Indebtedness, make Restricted Payments, use the proceeds from Asset Sales,
engage in transactions with Affiliates or merge, consolidate or transfer
substantially all of its assets. Within 45 days after the end of each fiscal
quarter (120 days after the end of the last fiscal quarter of each year), the
Company must report to the Trustee on compliance with such limitations.
13. Successor Persons.
When a successor person or other entity assumes all the obligations of
its predecessor under the Debentures and the Indenture, the predecessor person
will be released from those obligations.
14. Defaults and Remedies.
The following events constitute "Events of Default" under the Indenture:
(a) default in the payment of principal of (or premium, if any, on) any
Debenture when the same becomes due and payable at maturity, upon acceleration,
redemption or otherwise, whether or not such payment is prohibited by the
subordination provisions set forth in Article Ten of the Indenture; (b) default
in the payment of interest on any Debenture when the same becomes due and
payable, and such default continues for a period of 30 days, whether or not such
payment is prohibited by the subordination provisions set forth in Article Ten
of the Indenture; (c) default in the performance or breach of Article Five of
the Indenture or the failure to make or consummate an Offer to Purchase in
accordance with Section 4.10 or 4.11 of the Indenture, whether or not such Offer
to Purchase is prohibited by the provisions set forth in Article Ten of the
Indenture; (d) the Company defaults in the performance of or breaches any other
covenant or agreement of the Company in the Indenture or under the Debentures
(other than a default specified in clause (a), (b) or (c) above) and such
default or breach continues for a period of 30 consecutive days after written
notice by the Trustee or the Holders of 25% or more in aggregate principal
amount of the Debentures; (e) there occurs with respect to any issue or issues
of Indebtedness of the Company or any Significant Subsidiary having an
outstanding principal amount of $10 million or more in the aggregate for all
such issues of all such Persons, whether such Indebtedness now exists or shall
hereafter be created, (I) an event of default that has caused the holder thereof
to declare such Indebtedness to be due and payable prior to its Stated Maturity
and such Indebtedness has
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not been discharged in full or such acceleration has not been rescinded or
annulled within 30 days of such acceleration and/or (II) the failure to make a
principal payment at the final (but not any interim) fixed maturity and such
defaulted payment shall not have been made, waived or extended within 30 days of
such payment default; (f) any final judgment or order (not covered by insurance)
for the payment of money in excess of $10 million in the aggregate for all such
final judgments or orders against all such Persons (treating any deductibles,
self-insurance or retention as not so covered) shall be rendered against the
Company or any Significant Subsidiary and shall not be paid or discharged, and
there shall be any period of 60 consecutive days following entry of the final
judgment or order that causes the aggregate amount for all such final judgments
or orders outstanding and not paid or discharged against all such Persons to
exceed $10 million during which a stay of enforcement of such final judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect; (g) a
court having jurisdiction in the premises enters a decree or order for (A)
relief in respect of the Company or any Significant Subsidiary in an involuntary
case under any applicable bankruptcy, insolvency or other similar law now or
hereafter in effect, (B) appointment of a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company or any Significant Subsidiary or (C) the winding up or
liquidation of the affairs of the Company or any Significant Subsidiary and, in
each case, such decree or order shall remain unstayed and in effect for a period
of 60 consecutive days; or (h) the Company or any Significant Subsidiary (A)
commences a voluntary case under any applicable bankruptcy, insolvency or other
similar law now or hereafter in effect, or consents to the entry of an order for
relief in an involuntary case under any such law, (B) consents to the
appointment of or taking possession by a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of the Company or any
Significant Subsidiary or for all or substantially all of the property and
assets of the Company or any of its Significant Subsidiaries or (C) effects any
general assignment for the benefit of creditors.
If an Event of Default, as defined in the Indenture, occurs and is
continuing, the Trustee or the Holders of at least 25% in aggregate principal
amount of the Debentures then outstanding may declare all the Debentures to be
due and payable subject to the terms of the Indenture. If a bankruptcy or
insolvency default with respect to the Company or any Restricted Subsidiary
occurs and is continuing, the Debentures automatically become due and payable.
Holders may not enforce the Indenture or the Debentures except as provided in
the Indenture. The Trustee may require indemnity satisfactory to it before it
enforces the Indenture or the Debentures. Subject to certain limitations,
Holders of at least a majority in principal amount of the Debentures then
outstanding may direct the Trustee in its exercise of any trust or power.
15. Subordination.
The payment of the Debentures will, to the extent set forth in the
Indenture, be subordinated in right of payment to the prior payment in full, in
cash or cash equivalents, of all Senior Indebtedness.
16. Trustee Dealings with Company.
The Trustee under the Indenture, in its individual or any other
capacity, may make loans to, accept deposits from and perform services for the
Company or its Affiliates and may otherwise deal with the Company or its
Affiliates as if it were not the Trustee.
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17. No Recourse Against Others.
No incorporator or any past, present or future partner, stockholder,
other equity holder, officer, director, employee or controlling person as such,
of the Company or of any successor Person shall have any liability for any
obligations of the Company under the Debentures or the Indenture or for any
claim based on, in respect of or by reason of, such obligations or their
creation. Each Holder by accepting a Debenture waives and releases all such
liability. The waiver and release are part of the consideration for the issuance
of the Debentures.
18. Authentication.
This Debenture shall not be valid until the Trustee or authenticating
agent signs the certificate of authentication on the other side of this
Debenture.
19. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to Silgan Holdings Inc., 4
Landmark Square, Stamford, Connecticut 06901, Attention: General Counsel.
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FORM OF TRANSFER NOTICE
FOR VALUE RECEIVED the undersigned registered holder hereby sell(s), assign(s)
and transfer(s) unto ___________________________________________________________
(Please print or typewrite name and address including zip
code of assignee)
the within Debenture and all rights thereunder, hereby irrevocably constituting
and appointing _____________________________________________ attorney to
transfer said Debenture on the books of the Company with full power of
substitution in the premises.
Insert Taxpayer Identification No.
- --------------------------------- _________________________
OPTION OF HOLDER TO ELECT PURCHASE
If you wish to have this Debenture purchased by the Company pursuant to
Section 4.10 or Section 4.11 of the Indenture, check the Box: [_]
If you wish to have a portion of this Debenture purchased by the Company
pursuant to Section 4.10 or Section 4.11 of the Indenture, state the amount:
$_____________.
Date: ________
Your Signature:_________________________________________________________________
(Sign exactly as your name appears on the other side of this
Debenture)
Signature Guarantee: ____________________