EXHIBIT 99.1
SILGAN CORPORATION
PLACEMENT AGREEMENT
June 3, 1997
Morgan Stanley & Co.
Incorporated
1585 Broadway
New York, New York 10036-8293
Dear Sirs:
Silgan Corporation, a Delaware corporation (the "Company"), proposes to
issue and sell to you (the "Placement Agent") $300,000,000 principal amount of
its 9% Senior Subordinated Debentures due 2009 (the "Securities") to be issued
pursuant to the provisions of an Indenture (the "Indenture") to be dated as of
the Closing Date (as defined below) between the Company and The First National
Bank of Chicago, as Trustee (the "Trustee"). The Securities will be offered
without being registered under the Securities Act of 1933, as amended (the
"Securities Act"), in reliance on exemptions therefrom. The Placement Agent and
its direct and indirect transferees will be entitled to the benefits of a
Registration Rights Agreement, to be dated the Closing Date and to be
substantially in the form attached hereto as Exhibit A (the "Registration Rights
Agreement").
In connection with the sale of the Securities, the Company has prepared
a preliminary offering memorandum (the "Preliminary Memorandum") and will
prepare a final offering memorandum (the "Final Memorandum" and, with the
Preliminary Memorandum, each a "Memorandum") setting forth or including a
description of the terms of the Securities, the terms of the offering and a
description of the Company and its business. As used herein, the term
"Memorandum" shall include in each case the documents incorporated by reference
therein. The terms "supplement", "amendment" and "amend" as used herein shall
include all documents deemed to be incorporated by reference in the Preliminary
Memorandum or Final Memorandum that are filed subsequent to the date of such
Memorandum with the Securities and Exchange Commission (the "Commission")
pursuant to the Securities Exchange Act of 1934, as amended (the "Exchange
Act").
1. Representations and Warranties. The Company represents and
------------------------------
warrants to, and agrees with, you that as of the date hereof:
2
(a) (i) Each document, if any, filed or to be filed pursuant
to the Exchange Act and incorporated by reference in either Memorandum
complied or will comply when so filed in all material respects with the
Exchange Act and the applicable rules and regulations thereunder and
(ii) the Preliminary Memorandum does not contain and the Final
Memorandum, in the form used by the Placement Agent to confirm sales
and on the Closing Date, will not contain any untrue statement of a
material fact or omit to state a material fact necessary to make the
statements therein, in the light of the circumstances under which they
were made, not misleading, except that the representations and
warranties set forth in this Section 1(a) do not apply to statements or
omissions in either Memorandum based upon information relating to the
Placement Agent furnished to the Company in writing by the Placement
Agent through you expressly for use therein.
(b) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware, with power and authority (corporate and other) to own its
properties and conduct its business as described in each Memorandum,
and has been duly qualified as a foreign corporation for the
transaction of business in and is in good standing under the laws of
each other jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification, except to
the extent that the failure to be so qualified or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole; and each subsidiary of the Company has
been duly incorporated, is validly existing as a corporation in good
standing under the laws of its jurisdiction of incorporation, has the
power and authority (corporate and other) to own its property and to
conduct its business as described in each Memorandum and is duly
qualified to transact business and is in good standing in each
jurisdiction in which the conduct of its business or its ownership or
leasing of property requires such qualification, except to the extent
that the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.*
(c) This Agreement has been duly authorized, executed and
delivered by the Company.
(d) The Securities have been duly and validly authorized
and, when executed, authenticated and delivered to and paid for by the
Placement Agent at the Closing (as defined below) in accordance with
the terms of this Agreement, will (x) be valid and binding obligations
of the Company enforceable against the Company in accordance with their
terms, except as (A) the enforceability thereof may be limited by
bankruptcy, insolvency or similar laws affecting creditors' rights
generally and (B) rights of acceleration, if applicable, and the
availability of equitable remedies may be limited by equitable
principles of general applicability and (y) be entitled to
3
the benefits of the Indenture.
(e) The Indenture has been duly authorized by the Company and,
when executed and delivered by the Company at the Closing, will be a
valid and binding agreement of the Company, enforceable against the
Company in accordance with its terms except as (x) the enforceability
thereof may be limited by bankruptcy, insolvency or similar laws
affecting creditors' rights generally and (y) rights of acceleration,
if applicable, and the availability of equitable remedies may be
limited by equitable principles of general applicability.
(f) The Registration Rights Agreement has been duly authorized
by the Company and, when executed and delivered by the Company at the
Closing, will be a valid and binding agreement of, the Company,
enforceable against the Company in accordance with its terms except as
(x) the enforceability thereof may be limited by bankruptcy, insolvency
or similar laws affecting creditors' rights generally, (y) the
availability of equitable remedies may be limited by equitable
principles of general applicability and (z) any right to indemnity and
contribution may be limited by federal and state securities laws and
public policy considerations.
(g) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement,
the Indenture, the Registration Rights Agreement and the Securities and
the consummation of the transactions contemplated herein and in the
Final Memorandum will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any indenture, mortgage, deed of trust, loan agreement or other
agreement or instrument to which the Company or any of its subsidiaries
is a party or by which the Company or any of its subsidiaries is bound
or to which any of the property or assets of the Company or any of its
subsidiaries is subject that is material to the Company and its
subsidiaries, taken as a whole, nor will such action result in any
violation of the provisions of the Certificate of Incorporation or
By-laws of the Company or any statute or any order, rule or regulation
of any court or governmental agency or body having jurisdiction over
the Company or any of its subsidiaries or any of their properties; and
no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
is required for the performance by the Company of its obligations under
this Agreement, the Indenture, the Registration Rights Agreement and
the Securities except such consents, approvals, authorizations,
registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the offer and sale of
the Securities.
(h) Neither the Company nor any of its subsidiaries has
sustained since the date of the latest audited financial statements
included or incorporated by reference
4
in each Memorandum any material loss or interference with its business
from fire, explosion, flood or other calamity, whether or not covered
by insurance, or from any labor dispute or court or governmental
action, order or decree, otherwise than as set forth or contemplated in
each Memorandum; and, since the respective dates as of which
information is given in each Memorandum, there has not been any change
in the capital stock or long-term debt of the Company or any of its
subsidiaries or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
business, management, financial position, stockholders' equity
(deficiency) or results of operations of the Company and its
subsidiaries, otherwise than as set forth or contemplated in each
Memorandum.
(i) Neither the Company nor any affiliate (as defined in Rule
501(b) of Regulation D under the Securities Act, an "Affiliate") of the
Company has, to the knowledge of the Company, directly, or through any
agent, (i) sold, offered for sale, solicited offers to buy or otherwise
negotiated in respect of, any security (as defined in the Securities
Act) which is or will be integrated with the sale of the Securities in
a manner that would require the registration under the Securities Act
of the Securities or (ii) engaged in any form of general solicitation
or general advertising in connection with the offering of the
Securities (as those terms are used in Regulation D under the
Securities Act) or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act.
(j) The Company is not and, after giving effect to the
offering and sale of the Securities, will not be an "investment
company" or an entity "controlled" by an "investment company", as such
terms are defined in the Investment Company Act of 1940, as amended
(the "Investment Company Act"), assuming The Morgan Stanley Leveraged
Equity Fund II, L.P. ("MSLEF") is not an "investment company" and is
not "controlled" by an "investment company".
(k) Assuming the accuracy of the representations and
warranties of the Placement Agent in Section 6 hereof, it is not
necessary in connection with the offer, sale and delivery of the
Securities to the Placement Agent in the manner contemplated by this
Agreement to register the Securities under the Securities Act or to
qualify the Indenture under the Trust Indenture Act of 1939, as
amended.
(l) Except as described in each Memorandum, the Company and
its subsidiaries (A) are in compliance with any and all applicable
foreign, federal, state and local laws and regulations relating to the
protection of human health and safety, the environment or hazardous or
toxic substances or wastes, pollutants or contaminants ("Environmental
Laws"), (B) have received all permits, licenses or other approvals
required of them under applicable Environmental Laws to conduct their
respective businesses and (C) are in compliance with all terms and
conditions
5
of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required
permits, licenses or other approvals or failure to comply with the
terms and conditions of such permits, licenses or approvals would not,
singly or in the aggregate, have a material adverse effect on the
Company and its subsidiaries, taken as a whole.
(m) In the ordinary course of its business, the Company
conducts a periodic review of the effect of Environmental Laws on the
business, operations and properties of the Company and its
subsidiaries, in the course of which it identifies and evaluates
associated costs and liabilities (including, without limitation, any
material capital or operating expenditures required for clean-up,
closure of properties or compliance with Environmental Laws or any
material permit, license or approval, any related constraints on
operating activities material to the Company and its subsidiaries, and
any potential material liabilities to third parties). On the basis of
such review, the Company has reasonably concluded that such associated
costs and liabilities would not, singly or in the aggregate, have a
material adverse effect on the Company and its subsidiaries, taken as a
whole.
(n) None of the Company, its Affiliates or any person acting
on its or their behalf (other than (i) the Placement Agent, (ii) MSLEF,
(iii) any entity which controls MSLEF, (iv) any entity under common
control with any such entity and (v) any subsidiary of any such entity
other than any subsidiary of MSLEF (the parties identified in clauses
(i) through (v) are the "Excluded Parties")) has engaged in any
directed selling efforts (as that term is defined in Regulation S under
the Securities Act ("Regulation S")) with respect to the Securities,
and the Company and its Affiliates and any person acting on its or
their behalf (other than the Excluded Parties) has complied with the
offering restrictions requirement of Regulation S. To the knowledge of
the Company, none of the Excluded Parties (other than the Placement
Agent) has engaged in any directed selling efforts (as that term is
defined in Regulation S) with respect to the Securities, and, to the
knowledge of the Company, the Excluded Parties (other than the
Placement Agent) have complied with the offering restrictions
requirement of Regulation S.
(o) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good and marketable title
to all personal property owned by them, in each case free and clear of
all liens, encumbrances and defects except such as are described in
each Memorandum or such as do not materially affect the value of such
property and do not interfere with the use made and proposed to be made
of such property by the Company and its subsidiaries; and any real
property and buildings held under lease by the Company and its
subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and
6
buildings by the Company and its subsidiaries, taken as a whole.
(p) Each of the Company and its subsidiaries has all necessary
consents, authorizations, approval, orders, certificates and permits of
and from, and has made all declarations and filings with, all federal,
state, local and other governmental authorities, all self-regulatory
organizations and all courts and other tribunals, to own, lease,
license and use its properties and assets and to conduct its business
in the manner described in each Memorandum, except to the extent where
the failure to obtain any such consent, authorization, approval, order,
certificate or permit or make any such declaration or filing would not
have a material adverse effect on the Company and its subsidiaries,
taken as a whole;
(q) Neither the Company nor any of its subsidiaries is in
violation of its Certificate of Incorporation or By-laws or in default
in the performance or observance of any obligation, agreement, covenant
or condition contained in any indenture, mortgage, deed of trust, loan
agreement, lease or other agreement or instrument to which it is a
party or by which it or any of its properties or assets may be bound,
except for such defaults as do not and will not have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(r) The statements set forth in each Memorandum under the
caption "Description of the Debentures", insofar as they purport to
constitute a summary of the terms of the Securities and under the
caption "Transfer Restrictions", insofar as they purport to describe
the provisions of the laws and documents referred to therein, are
accurate, complete and fair.
(s) Other than as set forth in each Memorandum, there are no
legal or governmental proceedings pending to which the Company or any
of its subsidiaries is a party or of which any property of the Company
or any of its subsidiaries is the subject which, if determined
adversely to the Company or any of its subsidiaries, would individually
or in the aggregate have a material adverse effect on the current or
future consolidated financial position, stockholders' equity or results
of operations of the Company and its subsidiaries; and, to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or threatened by others.
(t) Ernst & Young LLP, who have certified certain financial
statements of the Company and its subsidiaries, are independent public
accountants as required by the Securities Act and the rules and
regulations of the Commission thereunder.
2. Offering. You have advised the Company that you will make
--------
an offering of the Securities purchased by you hereunder on the terms set forth
in the Final
7
Memorandum as soon as practicable after this Agreement is entered into as in
your judgment is advisable.
3. Purchase and Delivery. The Company hereby agrees to sell to the
---------------------
Placement Agent, and the Placement Agent, upon the basis of the representations
and warranties herein contained, but subject to the conditions hereinafter
stated, agrees to purchase from the Company, $300,000,000 principal amount of
Securities at a purchase price of 97-3/8% of the principal amount thereof plus
accrued interest, if any, from June 9, 1997 to the date of payment and delivery.
Payment for the Securities shall be made against delivery of the
Securities at a closing (the "Closing") to be held at the office of Shearman &
Sterling, 599 Lexington Avenue, New York, New York, at 9:00 A.M., local time, on
June 9, 1997, or at such other time on the same or such other date, not later
than June 19, 1997, as shall be designated in writing by you. The time and date
of such payment are herein referred to as the Closing Date. Payment for the
Securities shall be made by wire transfer to accounts designated in writing by
the Company.
Certificates for the Securities shall be in definitive form and
registered in such names and in such denominations as you shall request in
writing not less than two full business days prior to the Closing Date. The
certificates evidencing the Securities shall be delivered to you on the Closing
Date for the account of the Placement Agent, with any transfer taxes payable in
connection with the transfer of the Securities to the Placement Agent duly paid,
against payment of the purchase price therefor.
4. Conditions to Closing. The several obligations of the Placement
---------------------
Agent under this Agreement to purchase the Securities will be subject to the
following conditions:
(a) Subsequent to the date of this Agreement and prior to the Closing
Date,
(i) there shall not have occurred any downgrading, nor shall any
notice have been given of any intended or potential downgrading or of
any review for a possible change that does not indicate the direction
of the possible change, in the rating accorded any of the securities of
Silgan Holdings Inc. or the Company by any "nationally recognized
statistical rating organization," as such term is defined for purposes
of Rule 436(g)(2) under the Securities Act; and
(ii) there shall not have occurred any change, or any development
involving a prospective change, in the condition, financial or
otherwise, or in the earnings, business or operations, of the Company
and its subsidiaries, taken as a whole, from that set forth in the
Preliminary
8
Memorandum that, in your judgment, is material and adverse and that
makes it, in your judgment, impracticable to market the Securities on
the terms and in the manner contemplated in the Final Memorandum.
(b) You shall have received on the Closing Date a certificate, dated
the Closing Date and signed by an executive officer of the Company, to the
effect set forth in clause (a)(i) above and to the effect that the
representations and warranties of the Company contained in this Agreement are
true and correct as of the Closing Date and that the Company has complied with
all of the agreements and satisfied all of the conditions on its part to be
performed or satisfied pursuant to this Agreement on or before the Closing
Date.
The officer signing and delivering such certificate may rely upon the best
of his knowledge as to proceedings threatened.
(c) You shall have received on the Closing Date an opinion of
Winthrop, Stimson, Putnam & Roberts, independent counsel for the Company,
dated the Closing Date, to the effect set forth in Exhibit B.
(d) You shall have received on the Closing Date an opinion of McKenna
& Cuneo, independent counsel for the Company, dated the Closing Date, to the
effect set forth in Exhibit C.
(e) You shall have received on the Closing Date an opinion of
Proskauer Rose Goetz & Mendelsohn LLP, independent counsel for the Company,
dated the Closing Date, to the effect set forth in Exhibit D.
(f) You shall have received on the Closing Date an opinion of Shearman
& Sterling, counsel for the Placement Agent, dated the Closing Date, in form
and substance satisfactory to you.
(g) You shall have received on each of the date hereof and the Closing
Date a letter, dated the date hereof or the Closing Date, as the case may be,
in form and substance satisfactory to you, from Ernst & Young LLP, the
Company's independent public accountants, containing statements and
information of the type ordinarily included in accountants' "comfort letters"
to underwriters with respect to the financial statements and certain financial
information contained in or incorporated by reference into the Final
Memorandum.
5. Covenants of the Company. In further consideration of the
------------------------
agreements of the Placement Agent contained in this Agreement, the Company
covenants as follows:
9
(a) To furnish to you, without charge, during the period
mentioned in paragraph (c) below, as many copies of the Final
Memorandum, any documents incorporated by reference therein and any
supplements and amendments thereto as you may reasonably request and to
use its best efforts to deliver such copies to you by 5 p.m. (New York
time) on the business day next following the execution of this
Agreement.
(b) Before amending or supplementing either Memorandum, to
furnish to you a copy of each such proposed amendment or supplement and
not to use any such proposed amendment or supplement to which you
reasonably object.
(c) If, during such period after the date hereof and prior to
the date on which all of the Securities shall have been sold by the
Placement Agent, any event shall occur or condition exist as a result
of which it is necessary in your judgment to amend or supplement the
Final Memorandum in order to make the statements therein, in the light
of the circumstances when such Memorandum is delivered to a purchaser,
not misleading, or if, with the opinion of counsel to the Placement
Agent it is necessary to amend or supplement such Memorandum to comply
with applicable law, forthwith to prepare and furnish, at its own
expense, to the Placement Agent, either amendments or supplements to
such Memorandum so that the statements in such Memorandum as so amended
or supplemented will not, in the light of the circumstances when such
Memorandum is delivered to a purchaser, be misleading or so that such
Memorandum, as so amended or supplemented, will comply with applicable
law.
(d) To endeavor to qualify the Securities for offer and sale
under the securities or Blue Sky laws of such jurisdictions as you
shall reasonably request.
(e) Whether or not any sale of such Securities is consummated,
to pay all expenses incident to the performance of its obligations
under this Agreement, including: (i) the preparation of each Memorandum
and all amendments and supplements thereto, (ii) the preparation,
issuance and delivery of the Securities, (iii) the fees and
disbursements of the Company's counsel and accountants and the Trustee
and its counsel, (iv) the qualification of such Securities under
securities or Blue Sky laws in accordance with the provisions of
Section 5(d), including filing fees and the fees and disbursements of
counsel for the Placement Agent in connection therewith and in
connection with the preparation of any Blue Sky or legal investment
memoranda, (v) the printing and delivery to the Placement Agent in
quantities as hereinabove stated of copies of the Memorandum and any
amendments or supplements thereto, (vi) any fees charged by rating
agencies for the rating of such Securities, (vii) all document
production charges and expenses of counsel to the Placement Agent (but
not including their fees for professional services) in connection
10
with the preparation of this Agreement, (viii) the fees and expenses,
if any, incurred in connection with the admission of such Securities
for trading in PORTAL or any other appropriate market system, (ix) the
costs and expenses of the Company relating to investor presentations on
any "road show" undertaken in connection with the marketing of the
Securities, including, without limitation, expenses associated with the
production of road show slides and graphics, fees and expenses of any
consultants engaged in connection with the road show presentations with
the prior approval of the Company, travel and lodging expense of the
representatives and officers of the Company and any such consultants,
and the cost of any aircraft chartered in connection with the road
show, and (x) all other costs and expenses incident to the performance
of the obligations of the Company hereunder for which provision is not
otherwise made in this Section.
(f) Neither the Company nor any Affiliate (other than the
Placement Agent) will sell, offer for sale or solicit offers to buy or
otherwise negotiate in respect of any security (as defined in the
Securities Act) which could be integrated with the sale of the
Securities in a manner which would require the registration under the
Securities Act of such Securities.
(g) Not to solicit any offer to buy or offer or sell the
Securities by means of any form of general solicitation or general
advertising (as those terms are used in Regulation D under the
Securities Act) or in any manner involving a public offering within the
meaning of Section 4(2) of the Securities Act.
(h) While any of the Securities remain outstanding, to make
available, upon request, to any seller of such Securities the
information specified in Rule 144A(d)(4) under the Securities Act,
unless the Company is then subject to Section 13 or 15(d) of the
Exchange Act.
(i) None of the Company, its Affiliates or any person acting
on its or their behalf (other than the Placement Agent) will engage in
any directed selling efforts (as that term is defined in Regulation S)
with respect to the Securities, and the Company and its Affiliates and
each person acting on its or their behalf (other than the Placement
Agent) will comply with the offering restrictions of Regulation S.
(j) If requested by you, to use its best efforts to permit the
Securities to be designated PORTAL securities in accordance with the
rules and regulations adopted by the National Association of Securities
Dealers, Inc. relating to trading in the PORTAL Market; unless so
requested by you, the Company will not take any action to permit the
Securities to be designated PORTAL securities without your prior
consent, which shall not be unreasonably withheld.
11
6. Offering of Securities; Restrictions on Transfer. (a) The
------------------------------------------------
Placement Agent represents and warrants that it is a qualified institutional
buyer as defined in Rule 144A under the Securities Act (a "QIB"). The Placement
Agent agrees with the Company that (i) it will not solicit offers for, or offer
or sell, such Securities by any form of general solicitation or general
advertising (as those terms are used in Regulation D under the Securities Act)
or in any manner involving a public offering within the meaning of Section 4(2)
of the Securities Act and (ii) it will solicit offers for such Securities only
from, and will offer such Securities only to, persons that it reasonably
believes to be (A) in the case of offers inside the United States, (x) QIBs or
(y) other institutional accredited investors (as defined in Rule 501(a) (1),
(2), (3) or (7) under the Securities Act) ("institutional accredited investors")
that, prior to their purchase of the Securities, deliver to such Placement Agent
a letter containing the representations and agreements set forth in Annex A to
the Memorandum and (B) in the case of offers outside the United States, to
persons other than U.S. persons ("foreign purchasers", which term shall include
dealers or other professional fiduciaries in the United States acting on a
discretionary basis for foreign beneficial owners (other than an estate or
trust)) that, in each case, in purchasing such Securities are deemed to have
represented and agreed as provided in the Final Memorandum under the caption
"Transfer Restrictions."
(b) The Placement Agent represents, warrants, and agrees with
respect to offers and sales outside the United States that:
(i) it understands that no action has been or will be taken in
any jurisdiction by the Company that would permit a public offering of
the Securities, or possession or distribution of either Memorandum or
any other offering or publicity material relating to the Securities, in
any country or jurisdiction where action for that purpose is required;
(ii) the Placement Agent will comply with all applicable laws
and regulations in each jurisdiction in which it acquires, offers,
sells or delivers Securities or has in its possession or distributes
either Memorandum or any such other material, in all cases at its own
expense;
(iii) the Securities have not been and will not be registered
under the Securities Act and may not be offered or sold within the
United States or to, or for the account or benefit of, U.S. persons
except in accordance with Regulation S under the Securities Act or
pursuant to an exemption from the registration requirements of the
Securities Act;
(iv) the Placement Agent has offered the Securities and will
offer and sell the Securities (A) as part of their distribution at any
time and (B) otherwise until 40 days after the later of the
commencement of the offering of the Securities and the
12
Closing Date, only in accordance with Rule 903 of Regulation S or
another exemption from the registration requirements of the Securities
Act. Accordingly, neither the Placement Agent, its Affiliates nor any
persons acting on its or their behalf have engaged or will engage in
any directed selling efforts (within the meaning of Regulation S) with
respect to the Securities, and the Placement Agent, its Affiliates and
any such persons have complied and will comply with the offering
restrictions requirements of Regulation S;
(v) the Placement Agent has (A) not offered or sold and, prior
to the date that is six months after the Closing Date, will not offer
or sell any Securities to persons in the United Kingdom except to
persons whose ordinary activities involve them in acquiring, holding,
managing or disposing of investments (as principal or agent) for the
purposes of their businesses or otherwise in circumstances which have
not resulted and will not result in an offer to the public in the
United Kingdom within the meaning of the Public Offers of Securities
Regulations 1995; (B) complied and will comply with all applicable
provisions of the Financial Services Act 1986 with respect to anything
done by it in relation to the Securities in, from or otherwise
involving the United Kingdom; and (C) only issued or passed on and will
only issue or pass on in the United Kingdom any document received by it
in connection with the issue of the Securities to a person who is of a
kind described in Article 11(3) of the Financial Services Act 1986
(Investment Advertisements) (Exemptions) Order 1996 or is a person to
whom such document may otherwise lawfully be issued or passed on;
(vi) the Placement Agent understands that the Securities have
not been and will not be registered under the Securities and Exchange
Law of Japan, and represents that it has not offered or sold, and
agrees that it will not offer or sell, any Securities, directly or
indirectly, in Japan or to any resident of Japan except (A) pursuant to
an exemption from the registration requirements of the Securities and
Exchange Law of Japan and (B) in compliance with any other applicable
requirements of Japanese law; and
(vii) the Placement Agent agrees that, at or prior to confirmation
of sales of the Securities, it will have sent to each distributor,
dealer or person receiving a selling concession, fee or other
remuneration that purchases any Securities from it during the
restricted period a confirmation or notice to substantially the
following effect:
"The Securities covered hereby have not been registered
under the U.S. Securities Act of 1933, as amended (the
"Securities Act"), and may not be offered and sold within
the United States or to, or for the account or benefit of,
13
U.S. persons (i) as part of their distribution at any time
or (ii) otherwise until 40 days after the Closing Date,
except in either case in accordance with Regulation S (or
Rule 144A) under the Securities Act. Terms used above have
the meaning given to them by Regulation S."
Terms used in this Section 6 have the meanings given to them by Regulation S.
7. Indemnification and Contribution. (a) The Company agrees to
--------------------------------
indemnify and hold harmless the Placement Agent, and each person, if any, who
controls such Placement Agent within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, or is under common control
with, or is controlled by, the Placement Agent, from and against any and all
losses, claims, damages and liabilities (including, without limitation, any
legal or other expenses reasonably incurred by the Placement Agent or any such
controlling of affiliated person in connection with defending or investigating
any such action or claim) caused by any untrue statement or alleged untrue
statement of a material fact contained in either Memorandum (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto), or caused by any omission or alleged omission to state therein a
material fact necessary to make the statements therein in light of the
circumstances under which they were made not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
relating to the Placement Agent furnished to the Company in writing by such
Placement Agent through you expressly for use therein.
(b) The Placement Agent agrees to indemnify and hold harmless
the Company, its directors, its officers and each person, if any, who controls,
or is under common control with or is controlled by the Company within the
meaning of either Section 15 of the Securities Act or Section 20 of the Exchange
Act to the same extent as the foregoing indemnity from the Company to the
Placement Agent, but only with reference to information relating to the
Placement Agent furnished to the Company in writing by the Placement Agent
through you expressly for use in either Memorandum or any amendments or
supplements thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of which
indemnity may be sought pursuant to either paragraph (a) or (b) above, such
person (the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (the "indemnifying party") in writing and the
indemnifying party, upon request of the indemnified party, shall retain counsel
reasonably satisfactory to the indemnified party to represent the indemnified
party and any others the indemnifying party may designate in such proceeding and
shall pay the reasonable fees and disbursements of such counsel
14
related to such proceeding. In any such proceeding, any indemnified party shall
have the right to retain its own counsel, but the fees and expenses of such
counsel shall be at the expense of such indemnified party unless (i) the
indemnifying party and the indemnified party shall have mutually agreed to the
retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them. It
is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
fees and expenses of more than one separate firm (in addition to any local
counsel) for all such indemnified parties and that all such reasonable fees and
expenses shall be reimbursed as they are incurred. Such firm shall be designated
in writing by Morgan Stanley & Co. Incorporated in the case of parties
indemnified pursuant to paragraph (a) above and by the Company in the case of
parties indemnified pursuant to paragraph (b) above. The indemnifying party
shall not be liable for any settlement of any proceeding effected without its
written consent, but if settled with such consent or if there be a final
judgment for the plaintiff, the indemnifying party agrees to indemnify the
indemnified party from and against any loss or liability by reason of such
settlement or judgment. Notwithstanding the foregoing sentence, if at any time
an indemnified party shall have requested an indemnifying party to reimburse the
indemnified party for fees and expenses of counsel as contemplated by the second
and third sentences of this paragraph, the indemnifying party agrees that it
shall be liable for any settlement of any proceeding effected without its
written consent if (i) such settlement is entered into more than 30 days after
receipt by such indemnifying party of the aforesaid request and (ii) such
indemnifying party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
(d) To the extent the indemnification provided for in paragraph
(a) or (b) of this Section 7 is unavailable to an indemnified party or
insufficient in respect of any losses, claims, damages or liabilities, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Placement Agent, on
the other hand, from the offering of such Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Placement Agent on the other hand in connection with the statements
or omissions that resulted in such losses, claims, damages
15
or liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and the Placement
Agent on the other hand in connection with the offering of such Securities shall
be deemed to be in the same respective proportions as the net proceeds from the
offering of such Securities (before deducting expenses) received by the Company
and the total discounts and commissions received by the Placement Agent in
respect thereof bear to the aggregate offering price of such Securities. The
relative fault of the Company on the one hand and of the Placement Agent on the
other hand shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the Company
or by the Placement Agent and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
(e) The Company and the Placement Agent agree that it would not
be just or equitable if contribution pursuant to this Section 7 were determined
by pro rata allocation or by any other method of allocation that does not take
account of the equitable considerations referred to in paragraph (d) above. The
amount paid or payable by an indemnified party as a result of the losses,
claims, damages and liabilities referred to in paragraph (d) above shall be
deemed to include, subject to the limitations set forth above, any legal or
other expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Section 7, the Placement Agent shall not be required to
contribute any amount in excess of the amount by which the total price at which
the Securities resold by it in the initial placement of such Securities were
offered to investors exceeds the amount of any damages that the Placement Agent
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
(f) The indemnity and contribution provisions contained in this
Section 7 and the representations and warranties of the Company contained in
this Agreement shall remain operative and in full force and effect regardless of
(i) any termination of this Agreement, (ii) any investigation made by or on
behalf of the Placement Agent or any person controlling the Placement Agent or
by or on behalf of the Company, its officers or directors or any person
controlling the Company and (iii) acceptance of and payment for any of the
Securities. The remedies provided for in this Section 7 are not exclusive and
shall not limit any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
8. Termination. This Agreement shall be subject to termination
-----------
by notice given by you to the Company, if (a) after the execution and delivery
of this Agreement and prior to the Closing Date (i) trading generally shall have
been suspended or materially limited on or by, as the case may be, any of the
New York Stock
16
Exchange, the American Stock Exchange, the National Association of Securities
Dealers, Inc., the Chicago Board of Options Exchange, the Chicago Mercantile
Exchange or the Chicago Board of Trade, (ii) trading of any securities of the
Company or of Silgan Holdings Inc. shall have been suspended on any exchange or
in any over-the-counter market, (iii) a general moratorium on commercial banking
activities in New York shall have been declared by either Federal or New York
State authorities or (iv) there shall have occurred any outbreak or escalation
of hostilities or any change in financial markets or any calamity or crisis
that, in your judgment, is material and adverse and (b) in the case of any of
the events specified in clauses (a)(i) through (iv), such event singly or
together with any other such event makes it, in your judgment, impracticable to
market the Securities on the terms and in the manner contemplated in the Final
Memorandum.
9. Miscellaneous. This Agreement may be signed in any number
-------------
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
If this Agreement shall be terminated by the Placement Agent,
because of any failure or refusal on the part of the Company to comply with the
terms or to fulfill any of the conditions of this Agreement, or if for any
reason the Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Placement Agent for all out-of-pocket
expenses (including the fees and disbursements of their counsel) reasonably
incurred by the Placement Agent in connection with this Agreement or the
offering contemplated hereunder.
This Agreement shall be governed by and construed in accordance
with the internal laws of the State of New York.
The headings of the sections of this Agreement have been inserted
for convenience of reference only and shall not be deemed a part of this
Agreement.
17
Please confirm your agreement to the foregoing by signing in the
space provided below for that purpose and returning to us a copy hereof,
whereupon this Agreement shall constitute a binding agreement between us.
Very truly yours,
SILGAN CORPORATION
By /s/ Harley Rankin, Jr.
--------------------------
Harley Rankin, Jr.
Executive Vice President,
Chief Financial Officer
and Treasurer
Agreed, June 3, 1997
Morgan Stanley & Co.
Incorporated
By /s/ John R. Orem
---------------------
John R. Orem
Principal