UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[x] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the quarterly period ended March 31, 2009
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the transition period from ________________ to ________________
Commission file number 000-22117
SILGAN HOLDINGS INC.
(Exact name of Registrant as specified in its charter)
Delaware 06-1269834 (State or other jurisdiction (I.R.S. Employer of incorporation or organization) Identification No.) 4 Landmark Square Stamford, Connecticut 06901 (Address of principal executive offices) (Zip Code) (203)975-7110 (Registrant's telephone number, including area code) |
N/A
(Former name, former address and former fiscal year, if changed since last
report)
Indicate by check mark whether the Registrant: (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the Registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes [X] No [ ]
Indicate by check mark whether the Registrant has submitted electronically and posted on its corporate Web site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the Registrant was required to submit and post such files). Yes [ ] No [ ]
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See definitions of "large accelerated filer," "accelerated filer" and "smaller reporting company" in Rule 12b-2 of the Exchange Act.
Large accelerated filer[X] Accelerated filer[ ] Non-accelerated filer[ ] Smaller reporting company[ ] (Do not check if a smaller reporting company) |
Indicate by check mark whether the Registrant is a shell company (as defined in
Rule 12b-2 of the Exchange Act). Yes [ ] No [X]
As of April 30, 2009, the number of shares outstanding of the Registrant's
common stock, $0.01 par value, was 38,131,697.
SILGAN HOLDINGS INC.
TABLE OF CONTENTS
Page No. -------- Part I. Financial Information 3 Item 1. Financial Statements 3 Condensed Consolidated Balance Sheets at 3 March 31, 2009 and 2008 and December 31, 2008 Condensed Consolidated Statements of Income for the 4 three months ended March 31, 2009 and 2008 Condensed Consolidated Statements of Cash Flows for 5 the three months ended March 31, 2009 and 2008 Condensed Consolidated Statements of Stockholders' 6 Equity for the three months ended March 31, 2009 and 2008 Notes to Condensed Consolidated Financial Statements 7 Item 2. Management's Discussion and Analysis of Financial 18 Condition and Results of Operations Item 3. Quantitative and Qualitative Disclosures About Market 24 Risk Item 4. Controls and Procedures 24 Part II. Other Information 25 Item 1. Legal Proceedings 25 Item 6. Exhibits 25 Signatures 27 Exhibit Index 28 |
Part I. Financial Information
Item 1. Financial Statements
SILGAN HOLDINGS INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
(Dollars in thousands)
March 31, March 31, Dec. 31, 2009 2008 2008 ---- ---- ---- (unaudited) (unaudited) Assets Current assets Cash and cash equivalents $ 201,010 $ 169,144 $ 163,006 Trade accounts receivable, net 256,438 282,126 266,880 Inventories 469,193 517,683 392,335 Prepaid expenses and other current assets 29,051 29,525 31,093 ---------- ---------- ---------- Total current assets 955,692 998,478 853,314 Property, plant and equipment, net 879,456 937,293 902,230 Goodwill 294,459 316,363 300,448 Other intangible assets, net 55,702 62,650 57,112 Other assets, net 50,343 60,273 50,475 ---------- ---------- ---------- $2,235,652 $2,375,057 $2,163,579 ========== ========== ========== Liabilities and Stockholders' Equity Current liabilities Revolving loans and current portion of long-term debt $ 309,428 $ 330,438 $ 158,877 Trade accounts payable 217,244 234,439 298,611 Accrued payroll and related costs 70,669 80,618 72,337 Accrued liabilities 56,784 51,050 41,046 ---------- ---------- ---------- Total current liabilities 654,125 696,545 570,871 Long-term debt 710,170 895,324 726,036 Other liabilities 333,980 266,386 342,094 Stockholders' equity Common stock 434 431 433 Paid-in capital 165,431 154,231 162,568 Retained earnings 518,090 406,778 497,732 Accumulated other comprehensive (loss) income (86,201) 15,536 (75,861) Treasury stock (60,377) (60,174) (60,294) ---------- ---------- ---------- Total stockholders' equity 537,377 516,802 524,578 ---------- ---------- ---------- $2,235,652 $2,375,057 $2,163,579 ========== ========== ========== |
See accompanying notes.
SILGAN HOLDINGS INC.
CONDENSED CONSOLIDATED STATEMENTS OF INCOME
For the three months ended March 31, 2009 and 2008
(Dollars and shares in thousands, except per share amounts)
(Unaudited)
2009 2008 ---- ---- Net sales $655,396 $679,832 Cost of goods sold 559,083 589,766 -------- -------- Gross profit 96,313 90,066 Selling, general and administrative expenses 41,251 35,554 Rationalization charges 1,455 4,677 -------- -------- Income from operations 53,607 49,835 Interest and other debt expense 10,456 16,313 -------- -------- Income before income taxes 43,151 33,522 Provision for income taxes 15,475 12,370 -------- -------- Net income $ 27,676 $ 21,152 ======== ======== Earnings per share: Basic net income per share $0.73 $0.56 ===== ===== Diluted net income per share $0.72 $0.55 ===== ===== Dividends per share $0.19 $0.17 ===== ===== Weighted average number of shares: Basic 38,087 37,754 Effect of dilutive securities 331 435 ------ ------ Diluted 38,418 38,189 ====== ====== |
See accompanying notes.
SILGAN HOLDINGS INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
For the three months ended March 31, 2009 and 2008
(Dollars in thousands)
(Unaudited)
2009 2008 ---- ---- Cash flows provided by (used in) operating activities Net income $ 27,676 $ 21,152 Adjustments to reconcile net income to net cash used in operating activities: Depreciation and amortization 36,828 35,959 Rationalization charges 1,455 4,677 Excess tax benefit from stock-based compensation (1,094) (568) Other changes that provided (used) cash, net of effects from acquisitions: Trade accounts receivable, net 4,972 (52,695) Inventories (81,882) (73,334) Trade accounts payable (25,789) 41,597 Accrued liabilities 15,257 21,864 Other, net (13,752) (13,292) -------- -------- Net cash used in operating activities (36,329) (14,640) -------- -------- Cash flows provided by (used in) investing activities Purchase of businesses, net of cash acquired -- (10,525) Capital expenditures (23,916) (23,833) Proceeds from asset sales 121 250 -------- -------- Net cash used in investing activities (23,795) (34,108) -------- -------- Cash flows provided by (used in) financing activities Borrowings under revolving loans 183,654 259,338 Repayments under revolving loans (28,318) (53,700) Proceeds from issuance of debt -- 7,984 Changes in outstanding checks - principally vendors (51,270) (85,789) Dividends paid on common stock (7,318) (6,482) Proceeds from stock option exercises 940 429 Excess tax benefit from stock-based compensation 1,094 568 Repurchase of treasury shares (654) (397) -------- -------- Net cash provided by financing activities 98,128 121,951 -------- -------- Cash and cash equivalents Net increase 38,004 73,203 Balance at beginning of year 163,006 95,941 -------- -------- Balance at end of period $201,010 $169,144 ======== ======== Interest paid, net $ 7,044 $ 12,858 Income taxes paid, net 4,311 3,757 See accompanying notes. |
SILGAN HOLDINGS INC. CONDENSED CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY For the three months ended March 31, 2009 and 2008 (Dollars and shares in thousands) (Unaudited) Common Stock Accumulated ------------ Other Total Shares Par Paid-in Retained Comprehensive Treasury Stockholders' Outstanding Value Capital Earnings (Loss)Income Stock Equity ----------- ----- -------- --------- ------------- -------- ------------- Balance at December 31, 2007 37,740 $430 $152,629 $392,108 $ 15,064 $(60,148) $500,083 Comprehensive income: Net income -- -- -- 21,152 -- -- 21,152 Changes in net prior service credit and actuarial losses, net of tax provision of $67 -- -- -- -- 94 -- 94 Change in fair value of derivatives, net of tax benefit of $2,945 -- -- -- -- (4,159) -- (4,159) Foreign currency translation, net of tax benefit of $8,746 -- -- -- -- 4,537 -- 4,537 -------- Comprehensive income 21,624 -------- Dividends declared on common stock -- -- -- (6,482) -- -- (6,482) Stock compensation expense -- -- 862 -- -- -- 862 Stock option exercises, including tax benefit of $609 40 1 1,037 -- -- -- 1,038 Net issuance of treasury stock for vested restricted stock units, including tax benefit of $74 20 -- (297) -- -- (26) (323) ------ ---- -------- -------- -------- -------- -------- Balance at March 31, 2008 37,800 $431 $154,231 $406,778 $ 15,536 $(60,174) $516,802 ====== ==== ======== ======== ======== ======== ======== Balance at December 31, 2008 38,026 $433 $162,568 $497,732 $(75,861) $(60,294) $524,578 Comprehensive income: Net income -- -- -- 27,676 -- -- 27,676 Changes in net prior service credit and actuarial losses, net of tax provision of $947 -- -- -- -- 1,437 -- 1,437 Change in fair value of derivatives, net of tax benefit of $2,232 -- -- -- -- (3,008) -- (3,008) Foreign currency translation, net of tax provision of $7,371 -- -- -- -- (8,769) -- (8,769) -------- Comprehensive income 17,336 -------- Dividends declared on common stock -- -- -- (7,318) -- -- (7,318) Stock compensation expense -- -- 1,152 -- -- -- 1,152 Stock option exercises, including tax benefit of $1,264 76 1 2,203 -- -- -- 2,204 Net issuance of treasury stock for vested restricted stock units, including tax benefit of $79 30 -- (492) -- -- (83) (575) ------ ---- -------- -------- -------- -------- -------- Balance at March 31, 2009 38,132 $434 $165,431 $518,090 $(86,201) $(60,377) $537,377 ====== ==== ======== ======== ======== ======== ======== See accompanying notes. |
SILGAN HOLDINGS INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Information at March 31, 2009 and 2008 and for the three months then ended is unaudited)
Note 1. Significant Accounting Policies
Basis of Presentation. The accompanying unaudited condensed consolidated financial statements of Silgan Holdings Inc., or Silgan, have been prepared in accordance with U.S. generally accepted accounting principles for interim financial information and with the instructions to Form 10-Q and Article 10 of Regulation S-X. Accordingly, they do not include all of the information and footnotes required by U.S. generally accepted accounting principles for complete financial statements. In the opinion of management, the accompanying financial statements include all adjustments (consisting of normal recurring accruals) considered necessary for a fair presentation. The results of operations for any interim period are not necessarily indicative of the results of operations for the full year.
The Condensed Consolidated Balance Sheet at December 31, 2008 has been derived from our audited consolidated financial statements at that date, but does not include all of the information and footnotes required by U.S. generally accepted accounting principles for complete financial statements.
You should read the accompanying condensed consolidated financial statements in conjunction with our consolidated financial statements and notes thereto included in our Annual Report on Form 10-K for the year ended December 31, 2008.
Recently Adopted Accounting Pronouncements. In September 2006, the Financial Accounting Standards Board, or FASB, issued Statement of Financial Accounting Standards, or SFAS, No. 157, "Fair Value Measurements." SFAS No. 157 establishes a single authoritative definition for fair value, sets out a framework for measuring fair value and requires additional disclosures about fair value measurements. As of January 1, 2009, we completed the adoption of SFAS No. 157. The adoption of SFAS No. 157 did not have a significant effect on our financial position, results of operations or cash flows. See Note 6 for further information.
In December 2007, the FASB issued SFAS No. 141(R), "Business Combinations." SFAS No. 141(R) retains the fundamental requirements in SFAS No. 141 that the purchase method of accounting be used for all business combinations and an acquirer be identified for each business combination. SFAS No. 141(R) establishes principles and requirements for the reporting entity in a business combination, including recognition and measurement in the financial statements of the identifiable assets acquired, the liabilities assumed and any non-controlling interest at their fair values at the acquisition date. SFAS No. 141(R) also requires that acquisition-related costs be recognized separately from the acquisition. SFAS No. 141(R) applies prospectively to business combinations for which the acquisition date is on or after January 1, 2009. In addition, SFAS No. 141(R) requires that any changes in an acquired deferred tax account or related valuation allowance that occur after January 1, 2009 will be recognized as adjustments to income tax expense. The initial adoption of SFAS No. 141(R) did not have an effect on our financial position, results of operations or cash flows. However, our unrecognized tax benefit positions will impact our effective tax rate if recognition of such positions is required in future periods.
SILGAN HOLDINGS INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Information at March 31, 2009 and 2008 and for the three months then ended is unaudited)
Note 1. Significant Accounting Policies (continued)
Recently Adopted Accounting Pronouncements. (continued)
In March 2008, the FASB issued SFAS No. 161, "Disclosures about Derivative Instruments and Hedging Activities." SFAS No. 161 requires companies with derivative instruments to disclose information that should enable readers of financial statements to understand how and why a company uses derivative instruments, how derivative instruments and related hedged items are accounted for under SFAS No. 133, "Accounting for Derivative Instruments and Hedging Activities," and how derivative instruments and related hedged items affect a company's financial position, financial performance and cash flows. SFAS No. 161 was effective for us on January 1, 2009. The adoption of SFAS No. 161 did not have an effect on our financial position, results of operations or cash flows. See Note 7 for additional disclosures required under SFAS No. 161.
Recently Issued Accounting Pronouncements. In December 2008, the FASB issued FASB Staff Position, or FSP, No. FAS 132(R)-1, "Employers' Disclosures about Postretirement Benefit Plan Assets," which requires enhanced disclosures about plan assets in an employer's defined benefit pension or other postretirement plans. These disclosures are intended to provide users of financial statements with a greater understanding of how investment allocation decisions are made, the major categories of plan assets, the inputs and valuation techniques used to measure the fair value of plan assets and significant concentrations of risk within plan assets. FSP No. FAS 132(R)-1 will apply to our plan asset disclosures beginning with our fiscal year ending December 31, 2009. We are currently evaluating the disclosure implications of this pronouncement, however the adoption of it will not have an effect on our financial position, results of operations or cash flows.
In April 2009, the FASB issued FSP No. FAS 107-1 and APB 28-1, "Interim Disclosures about Fair Value of Financial Instruments," which requires disclosures about the fair value of financial instruments for interim reporting periods. This requirement is effective beginning with our quarter ending June 30, 2009. We are currently evaluating the disclosure implications of this pronouncement, however the adoption of it will not have an effect on our financial position, results of operations or cash flows.
SILGAN HOLDINGS INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Information at March 31, 2009 and 2008 and for the three months then ended is unaudited)
Note 2. Rationalization Charges
As part of our plans to rationalize certain facilities, we have established reserves for employee severance and benefits and plant exit costs. Activity in our rationalization reserves since December 31, 2008 is summarized as follows:
Employee Plant Non-Cash Severance Exit Asset and Benefits Costs Write-Down Total ------------ ----- ---------- ----- (Dollars in thousands) Balance at December 31, 2008 ---------------------------- 2001 Fairfield Rationalization Plan $ -- $ 168 $ -- $ 168 2006 Rationalization Plans 3,661 -- -- 3,661 2008 Rationalization Plans 949 875 -- 1,824 ------ ------ ----- ------ Balance at December 31, 2008 4,610 $1,043 -- 5,653 Activity for the Three Months Ended March 31, 2009 -------------------------------------------------- 2001 Fairfield Rationalization Plan Reserves Utilized -- (31) -- (31) 2006 Rationalization Plan Reserves Utilized (34) -- -- (34) 2008 Rationalization Plan Reserves Established -- 68 2 70 2008 Rationalization Plan Reserves Utilized (587) (321) (2) (910) 2009 Rationalization Plan Reserves Established 1,385 -- -- 1,385 ------ ------ ----- ------ Total Activity 764 (284) -- 480 Balance at March 31, 2009 ------------------------- 2001 Fairfield Rationalization Plan -- 137 -- 137 2006 Rationalization Plans 3,627 -- -- 3,627 2008 Rationalization Plans 362 622 -- 984 2009 Rationalization Plan 1,385 -- -- 1,385 ------ ------ ----- ------ Balance at March 31, 2009 $5,374 $ 759 $ -- $6,133 ====== ====== ===== ====== 2009 Rationalization Plan ------------------------- In March 2009, we approved a plan to reduce costs at our Hannover, Germany closures manufacturing facility, which plan included the termination of 14 employees. Total estimated charges related to this plan of $1.4 million for employee severance and benefit costs were recognized in March 2009. These costs are expected to be paid during the remainder of 2009. |
SILGAN HOLDINGS INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Information at March 31, 2009 and 2008 and for the three months then ended is unaudited)
Note 2. Rationalization Charges (continued)
In 2008, as part of our ongoing effort to streamline operations and reduce costs, we approved plans to close our metal food container manufacturing facility in Tarrant, Alabama, our plastic container manufacturing facility in Richmond, Virginia and our closures manufacturing facility in Turkey and to consolidate various administrative positions within our European closures operations. Through December 31, 2008, we recognized an aggregate $10.7 million of rationalization costs under these plans and terminated 200 employees. As of December 31, 2008, these plans were substantially completed. During the three months ended March 31, 2009, we recognized $0.1 million of rationalization costs and made cash payments of $0.9 million related to these plans. We have ceased operations at these three facilities and expect to sell the owned facilities for proceeds at or in excess of their respective net book values. We expect to recognize additional charges under these plans of $0.3 million during 2009. Remaining aggregate cash payments of $1.3 million are expected during the remainder of 2009.
In 2006, we announced plans to exit our St. Paul, Minnesota and Stockton, California metal food container manufacturing facilities. These plans have been fully implemented and substantially all costs have been recognized. We have ceased operations at these facilities. We expect to sell both buildings for estimated proceeds at or in excess of their net book value. Remaining cash payments of $3.6 million are expected in 2009 and thereafter.
Rationalization reserves are included in the Condensed Consolidated Balance Sheets as follows:
March 31, March 31, Dec. 31, 2009 2008 2008 ---- ---- ---- (Dollars in thousands) Accrued liabilities $3,151 $3,683 $2,671 Other liabilities 2,982 3,344 2,982 ------ ------ ------ $6,133 $7,027 $5,653 ====== ====== ====== |
SILGAN HOLDINGS INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Information at March 31, 2009 and 2008 and for the three months then ended is unaudited)
Note 3. Accumulated Other Comprehensive (Loss) Income
Accumulated other comprehensive (loss) income is reported in the Condensed Consolidated Statements of Stockholders' Equity. Amounts included in accumulated other comprehensive (loss) income consisted of the following:
March 31, March 31, Dec. 31, 2009 2008 2008 ---- ---- ---- (Dollars in thousands) Foreign currency translation $ 3,427 $ 37,153 $ 12,196 Change in fair value of derivatives (10,168) (2,320) (7,160) Unrecognized net periodic pension and other postretirement benefit costs: Net prior service credit 6,793 4,470 6,845 Net actuarial loss (86,253) (23,767) (87,742) -------- -------- -------- Accumulated other comprehensive (loss) income $(86,201) $ 15,536 $(75,861) ======== ======== ======== |
Note 4. Inventories
Inventories consisted of the following:
March 31, March 31, Dec. 31, 2009 2008 2008 ---- ---- ---- (Dollars in thousands) Raw materials $ 91,188 $ 86,079 $110,480 Work-in-process 76,196 88,111 72,078 Finished goods 328,808 362,229 237,080 Spare parts and other 29,936 31,823 30,841 -------- -------- -------- 526,128 568,242 450,479 Adjustment to value domestic inventory at cost on the LIFO method (56,935) (50,559) (58,144) -------- -------- -------- $469,193 $517,683 $392,335 ======== ======== ======== |
SILGAN HOLDINGS INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Information at March 31, 2009 and 2008 and for the three months then ended is unaudited)
Note 5. Long-Term Debt
Long-term debt consisted of the following:
March 31, March 31, Dec. 31, 2009 2008 2008 ---- ---- ---- (Dollars in thousands) Bank debt Bank revolving loans $ 156,000 $ 204,717 $ -- Bank A term loans 284,118 345,000 284,118 Bank B term loans 41,049 41,477 41,049 Canadian term loans 70,814 88,344 72,122 Euro term loans 239,310 315,580 256,860 Other foreign bank revolving and term loans 28,307 27,644 30,764 ---------- ---------- -------- Total bank debt 819,598 1,022,762 684,913 ---------- ---------- -------- Subordinated debt 6 3/4% Senior Subordinated Notes 200,000 200,000 200,000 Other -- 3,000 -- ---------- ---------- -------- Total subordinated debt 200,000 203,000 200,000 ---------- ---------- -------- Total debt 1,019,598 1,225,762 884,913 Less current portion 309,428 330,438 158,877 ---------- ---------- -------- $ 710,170 $ 895,324 $726,036 ========== ========== ======== At March 31, 2009, amounts expected to be repaid within one year consisted of $156.0 million of bank revolving loans related primarily to seasonal working capital needs and $125.1 million of bank term loans under our senior secured credit facility, or the Credit Agreement, and $28.3 million of foreign bank revolving and term loans. |
SILGAN HOLDINGS INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Information at March 31, 2009 and 2008 and for the three months then ended is unaudited)
Note 6. Fair Value Measurements
SFAS No. 157 defines fair value as the price that would be received to sell an asset or paid to transfer a liability in an orderly transaction between market participants at the measurement date (exit price). SFAS No. 157 classifies the inputs used to measure fair value into a hierarchy consisting of three levels. Level 1 inputs represent unadjusted quoted prices in active markets for identical assets or liabilities. Level 2 inputs represent unadjusted quoted prices in active markets for similar assets or liabilities, or unadjusted quoted prices for identical or similar assets or liabilities in markets that are not active, or inputs other than quoted prices that are observable for the asset or liability. Level 3 inputs represent unobservable inputs for the asset or liability. Financial assets and liabilities are classified in their entirety based on the lowest level of input that is significant to the fair value measurement.
The financial assets and liabilities that are measured on a recurring basis at March 31, 2009 consist of our interest rate and natural gas swap agreements. We measured the fair value of these swap agreements using the income approach. The fair value of these agreements reflects the estimated amounts that we would pay (receive) based on the present value of the expected cash flows derived from market interest rates and prices. As such, these derivative instruments are classified within Level 2.
The fair values of our outstanding swap agreements in effect at March 31, 2009 and 2008 and December 31, 2008 were a liability of $17.5 million, $4.0 million and $12.3 million, respectively.
Note 7. Derivative Instruments and Hedging Activities
Effective January 1, 2009, we adopted SFAS No. 161 which expands the quarterly and annual disclosure requirements about our derivative instruments and hedging activities. We account for derivative financial instruments under SFAS No. 133, "Accounting for Derivative Instruments and Hedging Activities," as amended and interpreted, which requires all derivatives to be recorded in the Condensed Consolidated Balance Sheets at their fair values. Changes in fair values of derivatives are recorded in each period in earnings or comprehensive income, depending on whether a derivative is designated as part of a hedge transaction and, if it is, the type of hedge transaction.
We utilize certain derivative financial instruments to manage a portion of our interest rate and natural gas cost exposures. We limit our use of derivative financial instruments to interest rate and natural gas swap agreements. We do not engage in trading or other speculative uses of these financial instruments. For a financial instrument to qualify as a hedge, we must be exposed to interest rate or price risk, and the financial instrument must reduce the exposure and be designated as a hedge. Financial instruments qualifying for hedge accounting must maintain a high correlation between the hedging instrument and the item being hedged, both at inception and throughout the hedged period.
We utilize certain internal hedging strategies to minimize our foreign currency exchange rate risk. Net investment hedges that qualify for hedge accounting result in the recognition of foreign currency gains or losses, net of tax, in accumulated other comprehensive (loss) income. We generally do not utilize external derivative financial instruments to manage our foreign currency exchange rate risk.
SILGAN HOLDINGS INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Information at March 31, 2009 and 2008 and for the three months then ended is unaudited)
Note 7. Derivative Instruments and Hedging Activities (continued)
Our interest rate and natural gas swap agreements are accounted for as cash flow hedges. During the quarter ended March 31, 2009, our hedges were fully effective. The fair value of the outstanding swap agreements in effect at March 31, 2009 was recorded in our Condensed Consolidated Balance Sheet as a liability of $17.5 million.
The amount reclassified to earnings from the change in fair value of derivatives component of accumulated other comprehensive (loss) income for the three months ended March 31, 2009 was a loss of $0.9 million, net of income taxes. We estimate that we will reclassify losses of $5.7 million, net of income taxes, of the change in fair value of derivatives component of accumulated other comprehensive (loss) income to earnings during the next twelve months. The actual amount that will be reclassified to earnings will vary from this amount as a result of changes in market conditions.
We have entered into U.S. dollar, Euro and Canadian dollar interest rate swap agreements to manage a portion of our exposure to interest rate fluctuations. At March 31, 2009, the aggregate notional principal amount of outstanding interest rate swap agreements was $275 million (non-U.S. dollar agreements have been translated into U.S. dollars at exchange rates in effect at the balance sheet date). The difference between amounts to be paid or received on interest rate swap agreements is recorded in interest and other debt expense in our Condensed Consolidated Statements of Income. For the three months ended March 31, 2009, net payments under these interest rate swap agreements were $1.1 million. These agreements are with a financial institution which is expected to fully perform under the terms thereof.
We have entered into natural gas swap agreements with a major financial institution to manage a portion of our exposure to fluctuations in natural gas prices. At March 31, 2009, the aggregate notional principal amount of our natural gas swap agreements was 813,000 MMBtu of natural gas with fixed prices ranging from $5.880 to $8.115 per MMBtu, which hedges approximately 31 percent of our estimated twelve month exposure to fluctuations in natural gas prices. For the three months ended March 31, 2009, net payments under our natural gas swap agreements were $0.5 million. These agreements are with a financial institution which is expected to fully perform under the terms thereof.
In an effort to minimize foreign currency exchange rate risk, we have financed our 2006 acquisitions of the White Cap closures operations and Cousins-Currie Limited with term loans borrowed under our Credit Agreement denominated in Euros and Canadian dollars, respectively. In addition, where available, we have borrowed funds in local currency or implemented certain internal hedging strategies to minimize our foreign currency exchange rate risk related to foreign operations. Foreign currency gains recognized as net investment hedges included in accumulated other comprehensive (loss) income for the three months ended March 31, 2009 were $17.6 million, net of a deferred tax provision of $7.4 million.
SILGAN HOLDINGS INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Information at March 31, 2009 and 2008 and for the three months then ended is unaudited)
Note 8. Retirement Benefits
The components of the net periodic benefit cost for the three months ended March
31 are as follows:
Other ----- Pension Benefits Postretirement Benefits ---------------- ----------------------- 2009 2008 2009 2008 ---- ---- ---- ---- (Dollars in thousands) Service cost $ 3,410 $ 3,413 $ 208 $ 225 Interest cost 6,980 6,756 766 845 Expected return on plan assets (6,334) (7,603) -- -- Amortization of prior service cost (credit) 556 560 (638) (549) Amortization of actuarial losses 2,383 80 83 70 ------- ------- ----- ----- Net periodic benefit cost $ 6,995 $ 3,206 $ 419 $ 591 ======= ======= ===== ===== |
As previously disclosed in our consolidated financial statements and notes thereto included in our Annual Report on Form 10-K for the year ended December 31, 2008, there are no material minimum required contributions to our pension plans in 2009. However, this is subject to change based on a number of factors, including further governmental interpretations of certain provisions of The Pension Protection Act of 2006. Based on our current funded status, in February 2009 we made voluntary contributions of $23.1 million to our pension benefit plans. To the extent they are tax deductible, we may make additional voluntary contributions to our pension benefit plans during the remainder of 2009.
Note 9. Income Taxes
Silgan and its subsidiaries file U.S. Federal income tax returns, as well as income tax returns in various states and foreign jurisdictions. The Internal Revenue Service, or IRS, has commenced an examination of Silgan's income tax return for the periods ended December 31, 2004 and December 31, 2005. It is reasonably possible that this IRS audit and IRS audits for prior periods will be concluded within the next twelve months, and that the conclusion of these audits may result in a significant change to our reported unrecognized tax benefits. Due to the ongoing nature of these audits, we are unable to estimate the amount of this potential impact.
Note 10. Dividends
On March 25, 2009, we paid a quarterly cash dividend on our common stock of $0.19 per share, as approved by our Board of Directors. The cash payment related to this dividend totaled $7.3 million.
On April 24, 2009, our Board of Directors declared a quarterly cash dividend on our common stock of $0.19 per share, payable on June 15, 2009 to holders of record of our common stock on June 1, 2009. The cash payment related to this dividend is expected to be approximately $7.3 million.
SILGAN HOLDINGS INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Information at March 31, 2009 and 2008 and for the three months then ended is unaudited)
Note 11. Treasury Stock
In the first quarter of 2009, we issued 43,100 treasury shares which had an average cost of $13.25 per share for restricted stock units that vested during the period. In accordance with the Silgan Holdings Inc. 2004 Stock Incentive Plan, we repurchased 13,476 shares of our common stock at an average cost of $48.49 to satisfy employee withholding tax requirements resulting from certain restricted stock units becoming vested. We account for the treasury shares using the first-in, first-out (FIFO) cost method. As of March 31, 2009, 5,233,371 shares were held in treasury.
Note 12. Stock-Based Compensation
We currently have one stock-based compensation plan in effect, under which we have issued options and restricted stock units to our officers, other key employees and outside directors. During the first three months of 2009, we granted 121,700 restricted stock units to certain of our officers and key employees. The fair value of these restricted stock units at the date of grant was $5.9 million, which is being amortized ratably over the five-year vesting period from the date of grant.
Note 13. Business Segment Information
Reportable business segment information for the three months ended March 31 is
as follows:
Metal Food Plastic Containers Closures Containers Corporate Total ---------- -------- ---------- --------- ----- (Dollars in thousands) 2009 ---- Net sales $371,616 $142,335 $141,445 $ -- $655,396 Depreciation and amortization (1) 17,868 6,904 11,301 421 36,494 Rationalization charges -- 1,425 30 -- 1,455 Segment income from operations 26,610 14,339 16,103 (3,445) 53,607 2008 ---- Net sales $351,231 $156,444 $172,157 $ -- $679,832 Depreciation and amortization (1) 16,161 7,630 11,406 421 35,618 Rationalization charges 1,267 2,649 761 -- 4,677 Segment income from operations 25,086 14,523 12,580 (2,354) 49,835 _____________ (1) Depreciation and amortization excludes amortization of debt issuance costs of $0.3 million for each of the three months ended March 31, 2009 and 2008. |
SILGAN HOLDINGS INC.
NOTES TO CONDENSED CONSOLIDATED FINANCIAL STATEMENTS
(Information at March 31, 2009 and 2008 and for the three months then ended is unaudited)
Note 13. Business Segment Information (continued)
Total segment income from operations is reconciled to income before income taxes for the three months ended March 31 as follows:
2009 2008 ---- ---- (Dollars in thousands) Total segment income from operations $53,607 $49,835 Interest and other debt expense 10,456 16,313 ------- ------- Income before income taxes $43,151 $33,522 ======= ======= |
Sales and income from operations of our metal food container business are dependent, in part, upon the vegetable and fruit harvests in the midwest and western regions of the United States. Our closures business is also dependent, in part, upon vegetable and fruit harvests. The size and quality of these harvests varies from year to year, depending in large part upon the weather conditions in applicable regions. Because of the seasonality of the harvests, we have historically experienced higher unit sales volume in the third quarter of our fiscal year and generated a disproportionate amount of our annual income from operations during that quarter.
Item 2.
Statements included in "Management's Discussion and Analysis of Financial Condition and Results of Operations" and elsewhere in this Quarterly Report on Form 10-Q which are not historical facts are "forward-looking statements" made pursuant to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995 and Securities Exchange Act of 1934. Such forward-looking statements are made based upon management's expectations and beliefs concerning future events impacting us and therefore involve a number of uncertainties and risks, including, but not limited to, those described in our Annual Report on Form 10-K for the fiscal year ended December 31, 2008 and our other filings with the Securities and Exchange Commission. As a result, the actual results of our operations or our financial condition could differ materially from those expressed or implied in these forward-looking statements.
General
We are a leading manufacturer of metal and plastic consumer goods packaging products. We produce steel and aluminum containers for human and pet food; metal, composite and plastic vacuum closures for food and beverage products; and custom designed plastic containers, tubes and closures for personal care, health care, pharmaceutical, household and industrial chemical, food, pet care, agricultural chemical, automotive and marine chemical products. We are the largest manufacturer of metal food containers in North America, a leading worldwide manufacturer of metal, composite and plastic vacuum closures for food and beverage products and a leading manufacturer of plastic containers in North America for a variety of markets, including the personal care, health care, household and industrial chemical and food markets.
Our objective is to increase shareholder value by efficiently deploying capital and management resources to grow our business, reduce operating costs and build sustainable competitive positions, or franchises, and to complete acquisitions that generate attractive cash returns. We have grown our net sales and income from operations over the years, largely through acquisitions but also through internal growth, and we continue to evaluate acquisition opportunities in the consumer goods packaging market. If acquisition opportunities are not identified over a longer period of time, we may use our cash flow to repay debt, repurchase shares of our common stock or increase dividends to our stockholders or for other permitted purposes.
RESULTS OF OPERATIONS
The following table sets forth certain unaudited income statement data expressed as a percentage of net sales for the three months ended March 31:
2009 2008 ---- ---- Net sales Metal food containers 56.7% 51.7% Closures 21.7 23.0 Plastic containers 21.6 25.3 ----- ----- Consolidated 100.0 100.0 Cost of goods sold 85.3 86.8 ----- ----- Gross profit 14.7 13.2 Selling, general and administrative expenses 6.3 5.2 Rationalization charges 0.2 0.7 ----- ----- Income from operations 8.2 7.3 Interest and other debt expense 1.6 2.4 ----- ----- Income before income taxes 6.6 4.9 Provision for income taxes 2.4 1.8 ----- ----- Net income 4.2% 3.1% ===== ===== |
Summary unaudited results of operations for the three months ended March 31 are provided below.
2009 2008 ---- ---- (Dollars in millions) Net sales Metal food containers $371.6 $351.2 Closures 142.3 156.4 Plastic containers 141.5 172.2 ------ ------ Consolidated $655.4 $679.8 ====== ====== Income from operations Metal food containers (1) $ 26.6 $ 25.1 Closures (2) 14.3 14.5 Plastic containers (3) 16.1 12.6 Corporate (3.4) (2.4) ------ ------ Consolidated $ 53.6 $ 49.8 ====== ====== _____________ |
(1) Includes rationalization charges of $1.3 million recorded in 2008.
(2) Includes rationalization charges of $1.4 million and $2.6 million
recorded in 2009 and 2008, respectively.
(3) Includes rationalization charges of $0.8 million recorded in 2008.
Three Months Ended March 31, 2009 Compared with Three Months Ended March 31, 2008
Overview. Consolidated net sales were $655.4 million in the first quarter of 2009, representing a 3.6 percent decrease as compared to the first quarter of 2008 primarily as a result of lower average selling prices in the plastic container business largely attributable to the pass through of resin price declines, the impact of unfavorable foreign currency translation and lower volumes across all of our businesses, partially offset by higher average selling prices in the metal food container and closure businesses due to the pass through of higher raw material and other manufacturing costs. Income from operations for the first quarter of 2009 of $53.6 million increased by $3.8 million, or 7.6 percent, as compared to the same period in 2008 due to lower rationalization charges, benefits from the lagged pass through of declines in resin costs in the plastic container business, effective cost control and manufacturing efficiencies, partially offset by the impact from lower unit volumes across all businesses, increased pension expense and higher depreciation expense. Results for 2009 included rationalization charges of $1.4 million. Results for 2008 included rationalization charges of $4.7 million. Net income for the first quarter of 2009 was $27.7 million, or $0.72 per diluted share, as compared to $21.2 million, or $0.55 per diluted share, for the same period in 2008.
Net Sales. The $24.4 million decrease in consolidated net sales in the first quarter of 2009 as compared to the first quarter of 2008 was the result of lower net sales in the closures and plastic container businesses, partially offset by higher net sales in the metal food container business.
Net sales for the metal food container business increased $20.4 million, or 5.8 percent, in the first quarter of 2009 as compared to the same period in 2008. This increase was primarily attributable to higher average selling prices as a result of the pass through of higher raw material and other manufacturing costs, partially offset by lower unit volumes principally due to an apparent customer buy ahead in the fourth quarter of 2008.
Net sales for the closures business decreased $14.1 million, or 9.0 percent, in the first quarter of 2009 as compared to the same period in 2008. This decrease was primarily the result of unfavorable foreign currency translation of approximately $8.9 million and moderately lower unit volumes largely attributable to the decline in the single-serve beverage markets and the customer buy ahead of metal closures in the fourth quarter of 2008. This decrease was partially offset by slightly higher average selling prices as the pass through of higher steel costs exceeded the pass through of lower resin costs.
Net sales for the plastic container business in the first quarter of 2009 decreased $30.7 million, or 17.8 percent, as compared to the same period in 2008. This decrease was primarily due to a moderate decline in unit volumes attributable to the ongoing overall demand weakness, lower average selling prices as a result of the pass through of lower raw material costs and the impact of unfavorable foreign currency translation of approximately $6.8 million.
Gross Profit. Gross profit margin increased 1.5 percentage points to 14.7 percent in the first quarter of 2009 as compared to the same period in 2008 for the reasons discussed below in "Income from Operations."
Selling, General and Administrative Expenses. Selling, general and administrative expenses as a percentage of consolidated net sales increased 1.1 percentage points to 6.3 percent for the first quarter of 2009 as compared to 5.2 percent for the same period in 2008, due primarily to the recognition in 2008 of management fee income of $2.2 million from the management of the Brazilian White Cap closures operation until it was acquired in April 2008 and higher pension expense in 2009.
Income from Operations. Income from operations for the first quarter of 2009 increased by $3.8 million as compared to the first quarter of 2008, and operating margin increased to 8.2 percent from 7.3 percent over the same periods.
Income from operations of the metal food container business for the first quarter of 2009 increased $1.5 million, or 6.0 percent, as compared to the same period in 2008, and operating margin increased slightly to 7.2 percent from 7.1 percent over the same periods. These increases were primarily the result of improved manufacturing efficiencies including benefits from the replenishment of inventory which was reduced late in the fourth quarter of 2008 and lower rationalization charges, partially offset by the impact of lower unit volumes, higher pension expense and increased depreciation expense. The first quarter of 2008 included total rationalization charges of $1.3 million related to ongoing costs to exit the St. Paul, Minnesota manufacturing facility as well as initial costs incurred for the shutdown of the Tarrant, Alabama manufacturing facility.
Income from operations of the closures business for the first quarter of 2009 decreased $0.2 million, or 1.4 percent, as compared to the same period in 2008, while operating margin increased to 10.0 percent from 9.3 percent over the same periods. The decrease in income from operations was primarily attributable to lower unit volumes and the year-over-year impact of the management fee income from the Brazilian White Cap closures operation of $2.2 million recognized in the first quarter of 2008, mostly offset by the benefits of ongoing cost reduction initiatives, improved manufacturing efficiencies and lower rationalization charges. Rationalization charges of $1.4 million were recognized in the first quarter of 2009 for a reduction in workforce at the operating facility in Germany. The first quarter of 2008 included rationalization charges of $2.6 million related to the streamlining of certain operations and consolidation of various administrative positions in Europe.
Income from operations of the plastic container business for the first quarter of 2009 increased $3.5 million, or 27.8 percent, as compared to the same period in 2008, and operating margin increased to 11.4 percent from 7.3 percent over the same periods. These increases were attributable to the positive effects from the lagged pass through of declining resin costs, ongoing focus on cost reductions, improved manufacturing efficiencies and lower rationalization charges, slightly offset by the impact from lower unit volumes and higher pension expense. The first quarter of 2008 included rationalization charges of $0.8 million related to the shutdown of the Richmond, Virginia manufacturing facility.
Interest and Other Debt Expense. Interest and other debt expense for the first quarter of 2009 decreased $5.9 million to $10.4 million as compared to the same period in 2008. This decrease was primarily due to lower market interest rates and lower average debt balances outstanding in the first quarter of 2009 as compared to the same period in 2008.
CAPITAL RESOURCES AND LIQUIDITY
Our principal sources of liquidity have been net cash from operating activities and borrowings under our debt instruments, including our Credit Agreement. Our liquidity requirements arise primarily from our obligations under the indebtedness incurred in connection with our acquisitions and the refinancing of that indebtedness, capital investment in new and existing equipment and the funding of our seasonal working capital needs.
For the three months ended March 31, 2009, we used net borrowings of revolving loans of $155.3 million and net proceeds from stock-based compensation issuances of $1.4 million to fund cash used in operations of $36.3 million primarily for our seasonal working capital needs, net capital expenditures of $23.8 million, decreases in outstanding checks of $51.3 million and dividends paid on our common stock of $7.3 million and to increase cash and cash equivalents by $38.0 million.
For the three months ended March 31, 2008, we used net borrowings of revolving loans of $205.6 million, debt borrowings of $8.0 million and net proceeds from stock-based compensation issuances of $0.6 million to fund cash used in operations of $14.6 million primarily for our seasonal working capital needs, net capital expenditures of $23.6 million, our acquisition of the metal vacuum closure assets of $10.5 million, decreases in outstanding checks of $85.8 million and dividends paid on our common stock of $6.5 million and to increase cash and cash equivalents by $73.2 million.
At the end of 2007 and through the first quarter of 2009, in light of the ongoing general credit crisis, we maintained a significant amount of cash and cash equivalents. Our cash and cash equivalents balance at March 31, 2009 was $201.0 million. We will continue to evaluate our level of cash and cash equivalents based on our assessment of the condition of the credit markets.
Because we sell metal containers used in fruit and vegetable pack processing, we have seasonal sales. As is common in the industry, we must utilize working capital to build inventory and then carry accounts receivable for some customers beyond the end of the packing season. Due to our seasonal requirements, we incur short-term indebtedness to finance our working capital requirements.
At March 31, 2009, we had $156.0 million of revolving loans outstanding under the Credit Agreement. After taking into account outstanding letters of credit, the available portion of our revolving loan facility under the Credit Agreement at March 31, 2009 was $264.2 million. We may use the available portion of our revolving loan facility, after taking into account our seasonal needs and outstanding letters of credit, for acquisitions or other permitted purposes. We may also borrow revolving loans to increase our cash and cash equivalents to ensure access to liquidity. During 2009, we estimate that we will utilize approximately $275 - $325 million of revolving loans under the Credit Agreement for our peak seasonal working capital requirements, which amount could be lower to the extent we utilize cash and cash equivalents on hand.
On April 24, 2009, our Board of Directors declared a quarterly cash dividend on our common stock of $0.19 per share, payable on June 15, 2009 to holders of record of our common stock on June 1, 2009. The cash payment related to this dividend is expected to be approximately $7.3 million.
We believe that cash generated from operations and funds from borrowings available under the Credit Agreement will be sufficient to meet our expected operating needs, planned capital expenditures, debt service, tax obligations, pension benefit plan contributions, share repurchases required under our 2004 Stock Incentive Plan and common stock dividends for the foreseeable future. With cash and cash equivalents on hand and cash generated from operations, we believe that we will be able to repay all outstanding term loans under the Credit Agreement as they become due and payable. However, there can be no assurance that we will be able to generate enough cash from operations to repay all such outstanding term loans, in which case we will need to refinance any remaining outstanding term loans. Additionally, we also believe that we will be able to replace our revolving loan facilities under the Credit Agreement before they expire with other loan facilities for our seasonal working capital needs. There can be no assurance that we will be able to effect any such refinancing, and, if we are able to, we may not be able to do so on the same terms (including interest rates) as under the Credit Agreement. Our ability to effect any such transactions and the terms thereof (including interest rates) will depend on a variety of factors, including the condition of the credit markets, which have experienced substantial disruptions to liquidity and credit availability in recent months; our future performance, which will be subject to prevailing economic conditions and to financial, business and other factors (including the state of the economy and other factors beyond our control) affecting our business and operations; the timing of such transactions; and the amount of debt to be refinanced.
We continue to evaluate acquisition opportunities in the consumer goods packaging market and may incur additional indebtedness, including indebtedness under the Credit Agreement, to finance any such acquisition.
We are in compliance with all financial and operating covenants contained in our financing agreements and believe that we will continue to be in compliance during 2009 with all of these covenants.
Rationalization Charges
In March 2009, we approved a plan to reduce costs at our Hannover, Germany closures manufacturing facility, which plan included the termination of 14 employees. Total estimated charges related to this plan of $1.4 million for employee severance and benefit costs were recognized in March 2009.
In 2008, as part of our ongoing effort to streamline operations and reduce costs, we approved plans to close our metal food container manufacturing facility in Tarrant, Alabama, our plastic container manufacturing facility in Richmond, Virginia and our closures manufacturing facility in Turkey and to consolidate various administrative positions within our European closures operations. Through December 31, 2008, we recognized an aggregate of $10.7 million of rationalization costs under these plans and terminated 200 employees. As of December 31, 2008, these plans were substantially completed. During the three months ended March 31, 2009, we recognized $0.1 million of rationalization costs and made cash payments of $0.9 million related to these plans. We have ceased operations at these three facilities and expect to sell the owned facilities for proceeds at or in excess of their respective net book values. We expect to recognize additional charges under these plans of $0.3 million during 2009.
Under our rationalization plans, we made cash payments of $1.0 million and $2.0 million for the three months ended March 31, 2009 and 2008, respectively. Total future cash spending of $6.4 million is expected for our outstanding rationalization plans.
You should also read Note 2 to our Condensed Consolidated Financial Statements for the three months ended March 31, 2009 included elsewhere in this Quarterly Report.
We continually evaluate cost reduction opportunities in our business, including rationalizations of our existing facilities through plant closings and downsizings. We use a disciplined approach to identify opportunities that generate attractive cash returns.
RECENT ACCOUNTING PRONOUNCEMENT
In December 2007, the FASB issued SFAS No. 141(R), "Business Combinations." SFAS No. 141(R) retains the fundamental requirements in SFAS No. 141 that the purchase method of accounting be used for all business combinations and an acquirer be identified for each business combination. SFAS No. 141(R) establishes principles and requirements for the reporting entity in a business combination, including recognition and measurement in the financial statements of the identifiable assets acquired, the liabilities assumed and any non-controlling interest at their fair values at the acquisition date. SFAS No. 141(R) also requires that acquisition-related costs be recognized separately from the acquisition. SFAS No. 141(R) applies prospectively to business combinations for which the acquisition date is on or after January 1, 2009. In addition, SFAS No. 141(R) requires that any changes in an acquired deferred tax account or related valuation allowance that occur after January 1, 2009 will be recognized as adjustments to income tax expense. The initial adoption of SFAS No. 141(R) did not have an effect on our financial position, results of operations or cash flows. However, our unrecognized tax benefit positions will impact our effective tax rate if recognition of such positions is required in future periods.
Market risks relating to our operations result primarily from changes in interest rates and, with respect to our international closures operations and our Canadian plastic container operations, from foreign currency exchange rates. In the normal course of business, we also have risk related to commodity price changes for items such as natural gas. We employ established policies and procedures to manage our exposure to these risks. Interest rate, foreign currency and commodity pricing transactions are used only to the extent considered necessary to meet our objectives. We do not utilize derivative financial instruments for trading or other speculative purposes.
Information regarding our interest rate risk, foreign currency exchange rate risk and commodity pricing risk has been disclosed in our Annual Report on Form 10-K for the fiscal year ended December 31, 2008. Since such filing there has not been a material change to our interest rate risk, foreign currency exchange rate risk or commodity pricing risk or to our policies and procedures to manage our exposure to these risks.
You should also read Note 7 to our Condensed Consolidated Financial Statements for the three months ended March 31, 2009 included elsewhere in this Quarterly Report.
We carried out an evaluation, under the supervision and with the participation of management, including our Chief Executive Officer and Chief Financial Officer, of the effectiveness of our disclosure controls and procedures (as defined in Rule 13a-15(e) of the Securities Exchange Act of 1934). Based upon that evaluation, as of the end of the period covered by this Quarterly Report our Chief Executive Officer and Chief Financial Officer concluded that the disclosure controls and procedures are effective in ensuring that all material information required to be disclosed in this Quarterly Report has been made known to them in a timely fashion.
There were no changes in our internal controls over financial reporting during the period covered by this Quarterly Report that have materially affected, or are reasonably likely to materially affect, these internal controls.
Part II. Other Information
Item 1. Legal Proceedings
On or about February 27, 2009, Stanislaus Food Products Company, or Stanislaus, filed a complaint against USS-Posco Industries, or UPI, in the Superior Court of the State of California in and for the County of Stanislaus, seeking damages allegedly arising from, among other things, UPI's purported price fixing of tin plate at supra-competitive levels and alleged attempt to monopolize the Northern California market for tin plate in violation of California statutes and common law. Remedies sought in such complaint include treble damages, punitive damages, attorney's fees and other equitable relief. The complaint, filed under seal, was removed by UPI to the United States District Court for the Eastern District of California (Fresno) on or about March 27, 2009 (Case No. 1:09-CV-00560-LJO-SMS). Neither Silgan nor any of our subsidiaries has been served with a summons or a copy of the complaint to date, and we just recently learned of this complaint. The complaint refers to Silgan Containers Corporation, and its successor-in-interest Silgan Containers LLC, a subsidiary of ours, as purported participants in an alleged conspiracy to unlawfully fix the prices of tin steel sold by UPI to us and then used by us to make cans that are sold to Stanislaus. We cannot be certain at this point whether or when we will be served in connection with this complaint. However, we believe any alleged claims against us are completely without merit, and, if we are served, we plan to vigorously defend this action. Since the above action is in its early stages and given the inherent uncertainties involved in litigation, we are unable at this time to predict the likely final outcome of the litigation or the amount of loss, if any, we could incur if we are served and if the outcome should be unfavorable.
Item 6. Exhibits Exhibit Number Description -------------- ----------- 10.1 Employment Agreement dated October 1, 2007 between Silgan Holdings Inc. and Adam J. Greenlee. 10.2 Officer Agreement dated October 1, 2007 between Silgan Holdings Inc. and Adam J. Greenlee. 10.3 Fourth Amendment to Credit Agreement, dated as of April 30, 2009, among Silgan Holdings Inc., Silgan Containers LLC, Silgan Plastics LLC, Silgan Containers Manufacturing Corporation, Silgan Can Company, Silgan White Cap LLC, Silgan Plastics Canada Inc., 827599 Ontario Inc., the lenders party to the Credit Agreement from time to time and Deutsche Bank AG New York Branch, as Administrative Agent. 10.4 Silgan Containers Corporation Supplemental Executive Retirement Plan, as amended. 10.5 Silgan Plastics Corporation Supplemental Savings and Pension Plan - Supplemental Pension Plan, as restated and subsequently amended, and Contributory Retirement Plan, as restated. 12 Ratio of Earnings to Fixed Charges for the three months ended March 31, 2009 and 2008. 31.1 Certification by the Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act. |
Exhibit Number Description -------------- ----------- 31.2 Certification by the Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act. 32.1 Certification by the Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act. 32.2 Certification by the Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this Quarterly Report to be signed on its behalf by the undersigned thereunto duly authorized.
SILGAN HOLDINGS INC.
Dated: May 4, 2009 /s/ Robert B. Lewis ---------------------------- Robert B. Lewis Executive Vice President and Chief Financial Officer |
EXHIBIT INDEX
EXHIBIT NO. EXHIBIT ----------- ------- 10.1 Employment Agreement dated October 1, 2007 between Silgan Holdings Inc. and Adam J. Greenlee. 10.2 Officer Agreement dated October 1, 2007 between Silgan Holdings Inc. and Adam J. Greenlee. 10.3 Fourth Amendment to Credit Agreement, dated as of April 30, 2009, among Silgan Holdings Inc., Silgan Containers LLC, Silgan Plastics LLC, Silgan Containers Manufacturing Corporation, Silgan Can Company, Silgan White Cap LLC, Silgan Plastics Canada Inc., 827599 Ontario Inc., the lenders party to the Credit Agreement from time to time and Deutsche Bank AG New York Branch, as Administrative Agent. 10.4 Silgan Containers Corporation Supplemental Executive Retirement Plan, as amended. 10.5 Silgan Plastics Corporation Supplemental Savings and Pension Plan - Supplemental Pension Plan, as restated and subsequently amended, and Contributory Retirement Plan, as restated. 12 Ratio of Earnings to Fixed Charges for the three months ended March 31, 2009 and 2008. 31.1 Certification by the Chief Executive Officer pursuant to Section 302 of the Sarbanes-Oxley Act. 31.2 Certification by the Chief Financial Officer pursuant to Section 302 of the Sarbanes-Oxley Act. 32.1 Certification by the Chief Executive Officer pursuant to Section 906 of the Sarbanes-Oxley Act. 32.2 Certification by the Chief Financial Officer pursuant to Section 906 of the Sarbanes-Oxley Act. |
Exhibit 10.1
SILGAN HOLDINGS INC.
Anthony J. Allott 4 Landmark Square President and Chief Executive Officer Suite 400 Stamford, CT 06901
October 1, 2007
Mr. Adam J. Greenlee
3N446 Laura Ingalls Wilder Road
St. Charles, IL 60175
Dear Adam:
This letter sets forth the terms of your employment with Silgan Holdings Inc. ("Silgan") and replaces in its entirety any other employment agreement you may have with Silgan or any of its subsidiaries.
You will be employed on a full-time at will basis by Silgan, serving as its Executive Vice President, Operations and reporting to the Chief Executive Officer of Silgan. Additionally, you will serve as an officer of subsidiaries of Silgan as directed.
While you are employed by Silgan, as compensation for your services, Silgan will pay you a salary at an annual rate of $400,000. Your salary shall be payable to you in accordance with the prevailing payroll practices (including the withholding of taxes) of Silgan. Your annual salary shall be subject to increase at the discretion of the Compensation Committee of the Board of Directors of Silgan.
While you are employed by Silgan, you shall also be eligible to receive an annual bonus for each year (pro rated for 2007), payable in the following year in accordance with Silgan's practices (including the withholding of taxes), in an amount up to a maximum of thirty percent (30%) of your salary paid for that year. Your bonus for any year shall be payable to you on the same basis that an annual bonus is payable to the Chief Executive Officer of Silgan for such year under the Silgan Holdings Inc. Senior Executive Performance Plan. For 2007, a bonus in an amount equal to the applicable maximum amount is payable to the Chief Executive Officer of Silgan under and based on such plan if Silgan achieves EBITDA (as defined in such plan) of at least the amount of EBITDA of Silgan for 2006. It is acknowledged that you remain eligible to receive an annual bonus for 2007 (pro rated to the date hereof) under the applicable bonus plan of Silgan White Cap Americas LLC that you had participated in prior to the date hereof, all in accordance with and pursuant to such bonus plan.
During your employment with Silgan, you will be entitled to (i) receive health and welfare benefits that are made available generally to employees of Silgan, with the full cost for such benefits to be borne by you, and (ii) to participate in the 401(K) savings plan that other employees of Silgan participate in, subject to the rules and policies thereof, except that you will not be entitled to any matching contributions in respect of
Mr. Adam J. Greenlee October 1, 2007
your contributions to such 401(K) savings plan. You will also be entitled to paid vacation in accordance with the policies of Silgan. Additionally, with respect to your relocation to join Silgan you shall be entitled to receive relocation benefits in accordance with the relocation policy of Silgan Containers Corporation applicable for its officers, as well as a settling in allowance of up to $150,000.
Other than as set forth above, you shall not be entitled to participate in any other benefit plans of, or receive any other benefits from, Silgan or any of its subsidiaries, including, without limitation, under any pension plan, except that you shall be entitled to also participate in and receive benefits under any stock option, restricted stock or other stock based compensation plan in which other officers of Silgan participates. You agree to execute such waivers and other documents that Silgan shall require to acknowledge that you are not entitled to participate in any such other benefits plans of, or receive any such other benefits from, Silgan or any of its subsidiaries, including, without limitation, under any pension plan. For your information, the Compensation Committee of the Board of Directors of Silgan has approved the grant to you in 2008 of 10,000 restricted stock units under the Silgan Holdings Inc. 2004 Stock Incentive Plan, subject to the attainment by Silgan of certain performance criteria, which restricted stock units will vest ratably over a five year period beginning one year from the date of grant and will carry with them the right to dividend equivalents (all as provided in the Silgan Holdings Inc. 2004 Stock Incentive Plan and the applicable restricted stock unit agreement therefor).
In the event that your employment with Silgan is terminated without cause by Silgan, you will be entitled to receive a lump sum severance payment in an amount equal to the sum of (i) your annual salary at such time plus (ii) your annual bonus, calculated at thirty percent (30%) of your annual salary at such time, as further provided in the Officer Agreement between Silgan and you dated the date hereof.
Please acknowledge your agreement with the foregoing by signing a copy of this letter below.
Very truly yours,
SILGAN HOLDINGS INC.
By: /s/ Anthony J. Allott ------------------------------------- Anthony J. Allott President and Chief Executive Officer |
Acknowledged and agreed:
/s/ Adam J. Greenlee ------------------------- Adam J. Greenlee |
Exhibit 10.2
OFFICER AGREEMENT
THIS AGREEMENT ("Agreement") is made and entered into this 1st day of October, 2007 ("Effective Date"), by and between Silgan Holdings Inc. ("Company") and Adam J. Greenlee ("Officer"). For purposes of this Agreement, the term "Company" shall include the subsidiaries of Silgan Holdings Inc. listed on Exhibit A hereto as well as all future subsidiaries of Silgan Holdings Inc.
A. Company is engaged in the business of developing, creating, manufacturing and selling, among other things, (i) metal containers for human and pet food, (ii) plastic packaging solutions for customers' products and (iii) metal, plastic and composite closures for food and beverage products (collectively, the "Business"). Company's headquarters and principal place of business are located in, and this Agreement is being signed in, Stamford, Connecticut.
B. Officer is a senior officer of Company who is involved in, and has significant responsibilities and confidential information regarding, Company's Business.
C. Company desires that Officer sign this Agreement.
D. Officer desires to sign this Agreement and be eligible for severance as provided herein.
NOW, THEREFORE, in consideration of the above and of the mutual covenants and agreements hereinafter set forth, Officer and Company agree as follows:
(a) Officer agrees to keep secret and confidential, and not to use or disclose to any third-parties, except as directly required for Officer to perform Officer's employment responsibilities for Company, any of Company's confidential, proprietary and/or trade secret information concerning Company's Business learned, developed or otherwise acquired by Officer during the course of, or in connection with, Officer's employment with Company ("Confidential Information"). Confidential Information includes, among other things, Company's confidential information regarding its customers and prospective customers (including but not limited to their needs, preferences, requirements, and likes and dislikes), costs, pricing, profitability, sales and marketing strategies, pricing policies, commission structures, contract terms and conditions, operational methods, strategic plans, nonpublic personnel-related information, nonpublic training materials, internal financial information, research and development plans and activities, and the like. Officer acknowledges that Company exercises reasonable efforts to maintain the secrecy and confidentiality of Confidential Information, and Officer agrees to treat Confidential Information as
secret and confidential so long as such information is not generally known to the public.
(b) Officer acknowledges that any and all notes, records, sketches, computer diskettes, nonpublic training materials, recordings and other documents obtained by or provided to Officer, or otherwise made, produced or compiled during the course of Officer's employment with Company, which contain any Confidential Information of Company, regardless of the type of medium in which it is preserved, are the sole and exclusive property of Company and shall be given to Company (with no copies retained) upon Officer's termination of employment or on demand at any time by Company.
(a) Officer recognizes that (1) Company has spent substantial money, time
and effort over the years in developing and solidifying its
relationships with its customers and in developing its Confidential
Information; (2) long-term customer relationships often can be
difficult to develop and require a significant investment of time,
effort and expense; and (3) Company pays its high-level personnel such
as Officer to, among other things, develop and preserve Confidential
Information, customer goodwill, and customer loyalty for and on behalf
of Company. Accordingly, Officer agrees that for a period of (x) one
(1) year immediately following Officer's last day of employment with
Company if such employment is terminated by Company with cause or by
the Officer or (y) one (1) year immediately following Officer's last
day of employment with Company if such employment is terminated by
Company without cause, Officer shall not, directly or indirectly, on
Officer's behalf or on behalf of any other person, firm, corporation,
partnership or other entity, compete against Company by:
(i) providing, or supervising, managing or consulting in the provision of, any services or products that are competitive with Company's Business;
(ii) becoming employed by, or providing services under contract or otherwise for, any company providing services or products in competition with Company's Business;
(iii) providing, or supervising, managing or consulting in the provision of, any work or activity that involves a product, process, apparatus, service or
development utilized by the Company in its Business to any
customer of Company with whom Officer or anyone under Officer's
direct supervision dealt at any time during Officer's last two
(2) years of employment with Company or about whom Officer
acquired any Confidential Information while Officer was employed
by Company;
(iv) soliciting, enticing, inducing, hiring, employing or seeking to employ any salesperson, engineer, technician, manager or executive-level employee of Company, who was employed by Company during Officer's last six (6) months of employment with the Company, to provide any services in competition with Company's Business.
(b) The post-termination restrictions in Sections 3(a)(i) and (ii) shall apply only in the United States, Canada, and such other countries where Company is engaged in the Business, or is actively planning to engage in the Business, as of the last day of Officer's employment with Company. Officer acknowledges and agrees that the post-termination restrictions in Sections 3(a)(i) through (iv) are reasonable and necessary to protect Company's legitimate protectible interests because, among other reasons, (i) of the narrow range of the activities prohibited; (ii) of the Confidential Information to which Officer has and will have access, which Officer agrees can have a useful competitive life of more than two years; (iii) of Officer's high-level position in Company, which provides Officer with access to Company's most sensitive Confidential Information and access to and influence regarding Company's most valuable and sensitive customer relationships; (iv) there are many other areas and businesses in which, and companies for which, Officer could work in view of Officer's background, and the restraints contained herein therefore should not impose any undue hardship on Officer. Officer further acknowledges and agrees that the restrictions in Subpart 3(a)(iv) are reasonable because (1) Officer, as a high-level employee, is in a position to identify, through Confidential Information, Company employees most integral and/or critical to the success of Company's Business; (2) such restrictions protect against the possible loss or misuse of Confidential Information by other Company employees; (3) such restrictions protect the customer relationships and/or goodwill associated with other Company employees; and (4) loss of one or more other Company employees, in addition to Officer, would increase the risk of loss or misuse of Confidential Information and/or customer relationships.
(a) Officer agrees that any and all Confidential Information, ideas, inventions, discoveries, patents, patent applications, technology, improvements, know-how, copyrights, tangible works of expression, derivative works, trademarks, service marks, trade secrets, and the like ("Intellectual Property"), which are developed, conceived, created, discovered, learned, produced and/or otherwise generated by Officer, whether individually or otherwise, during the time that Officer is employed by Company, whether before or after execution of this Agreement, whether or not
during working hours, that relate to: (a) current and anticipated businesses and/or activities of Company; (b) Company's current and anticipated research or development; or (c) any work performed by Officer for Company are and shall be the sole and exclusive property of Company, and Company shall own any and all worldwide right, title and interest in, to and under such Intellectual Property. Officer hereby agrees to assign, and assigns, to Company any and all worldwide right, title and interest in, to and under such Intellectual Property. Officer hereby agrees, whenever requested to do so by Company, at Company's expense, to execute any and all applications, assignments or other instruments which Company deems desirable or necessary to protect such interests. In the event that Company requests Officer to perform any of the foregoing services following termination of Officer's employment with Company, Company agrees to compensate Officer for such services at a rate per hour equal to the base salary that Officer received from Company at the time of Officer's termination. In addition, Company shall reimburse Officer for all related reasonable out-of-pocket expenses incurred in rendering such services. Officer further agrees to make a complete written disclosure to Company of any Intellectual Property, when and as it arises, is conceived or is reduced to practice, specifically pointing out the features or concepts that Officer believes to be new or different.
(b) Officer agrees that any Intellectual Property that is conceived, developed, or reduced to practice by Officer within one (1) year immediately following the termination of Officer's employment with Company that relates to the actual or foreseeable Business of Company will be presumed to have been made during the term of Officer's employment and will be the sole property of Company, unless Officer presents sufficient evidence to Company satisfactory to rebut the presumption.
(a) Officer's employment with Company is terminable by Company, or by Officer, without cause, at any time upon notice to the other party. Company also may terminate Officer's employment with Company immediately for cause at any time. If Officer's employment under this Agreement is terminated, for any reason, with or without cause, Company shall have no liability whatsoever to Officer other than to pay Officer the compensation due through Officer's last day of employment (subject to Subsection (b) below), and such termination shall not diminish or affect in any way Officer's post-employment duties and obligations under this Agreement.
(b) Officer acknowledges that Officer is, and at all times will be, an
employee-at-will of Company and nothing herein shall be construed to
alter or affect such employee-at-will status. Without limiting the
generality of the foregoing, as additional consideration for Officer's
execution of this Agreement, in the event that Company terminates
Officer's employment without cause, Company hereby agrees to provide
Officer with (i) a payment of an amount equal to the sum of (1) one
(1) year of Officer's normal base salary at Officer's then annual
salary rate plus (2) one year annual bonus calculated at thirty
percent (30%) of such base salary, less applicable withholdings (the
"Salary Payment"), with payment of the Salary Payment to be made in
one lump sum on the effective date of termination, and (ii) a payment
of an amount equal to the bonus Officer would have received under
Company's applicable bonus plan for Officer for the year during which
Officer's employment terminated had Officer's employment not so
terminated, but pro rated based on the number of days Officer was
employed by Company during such year, less applicable withholdings,
(the "Bonus Payment" and together with the Salary Payment, the
"Severance Payment"), with payment of the Bonus Payment to be made
during the first quarter of the year following the year during which
Officer's employment terminated. Officer understands, acknowledges and
agrees that no Severance Payment shall be due in the event that
Company terminates Officer's employment for cause or Officer
terminates his employment.
(c) For purposes of this Agreement, "cause" shall mean and include Officer's (i) act of fraud, embezzlement, theft, bribery or any other act of comparable dishonesty, disloyalty or breach of trust against the Company or any other material violation of law that occurs during or in the course of Officer's employment with Company; (ii) damage to Company's assets; (iii) improper use or disclosure of Company's confidential information; (iv) breach of Officer's obligations under this Agreement; (v) engagement in, or the planning of or preparation for, any competitive activity which would constitute a breach of Officer's duty of loyalty or of Officer's obligations under this Agreement; (vi) breach of any of Company's policies; (vii) willful and continued failure to perform Officer's duties for Company (other than as
a result of incapacity due to physical or mental illness); or (viii) willful conduct that is injurious to Company, monetarily or otherwise.
Company in good faith believes is, or is likely to be, considering employing Officer, of the existence and terms of this Agreement.
PLEASE NOTE: BY SIGNING THIS AGREEMENT, OFFICER IS HEREBY CERTIFYING THAT OFFICER (A) HAS RECEIVED A COPY OF THIS AGREEMENT FOR REVIEW AND STUDY BEFORE EXECUTING IT; (B) HAS READ THIS AGREEMENT CAREFULLY BEFORE SIGNING IT; (C) HAS HAD SUFFICIENT OPPORTUNITY BEFORE SIGNING THE AGREEMENT TO ASK ANY QUESTIONS OFFICER HAS ABOUT THE AGREEMENT AND HAS RECEIVED SATISFACTORY ANSWERS TO ALL SUCH QUESTIONS; AND (D) UNDERSTANDS OFFICER'S RIGHTS AND OBLIGATIONS UNDER THE AGREEMENT.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the Effective Date first above written.
/s/ Adam J. Greenlee -------------------------------------------- |
SILGAN HOLDINGS INC.
By: /s/ Anthony J. Allott ---------------------------------------- Name: Anthony J. Allott -------------------------------------- Title: President and Chief Executive Officer ------------------------------------- |
EXHIBIT A
Subsidiaries of Silgan Holdings Inc.
Silgan Containers Corporation
Silgan Containers Manufacturing Corporation
Silgan LLC
Silgan Corporation
Silgan Can Company
Silgan Containers Lodi Manufacturing Corporation
Silgan Plastics Corporation
RXI Plastics, Inc.
Silgan Tubes Corporation
Silgan Tubes Holding Company
827599 Ontario Inc.
Silgan Plastics Canada Inc.
828745 Ontario Inc.
Thatcher Mexico, S.A. de R.L. de C.V.
Thatcher Investments, S.A. de R.L. de C.V.
Silgan Closures International Holding Company
Silgan Closures Holding Company
Silgan Closures Corporation
Silgan White Cap Americas LLC
Silgan Equipment Company
Silgan Closures Mexico, S.A. de C.V.
Silgan International Partnership C.V.
Silgan International Holdings B.V.
Silgan Europe Holdings B.V.
SWC Holdings Deutschland GmbH
Silgan White Cap Deutschland GmbH
Silgan White Cap Nordiska AB
SWC Holdings Italy S.r.l.
Silgan White Cap Italia S.r.l.
SWC Holdings Poland Sp. z o.o.
Silgan White Cap Polska Sp. z o.o.
Silgan White Cap GmbH
Silgan White Cap France S.A.S.
Silgan White Cap Holdings Spain S.L.
Silgan White Cap Espana S.L.
Silgan White Cap UK Limited
Silgan White Cap Hungary Packaging Limited Liability Company
Silgan White Cap Belgium N.V.
Silgan White Cap Holdings Cyprus Limited
Silgan White Cap Ukraine LLC
Silgan White Cap Ambalaj Sanayi ve Ticaret A.S.
Silgan White Cap Investments, Inc.
Silgan White Cap South East Asia, Inc.
Silgan White Cap Properties, Inc.
SWC Holdings (Mauritius) Ltd.
Silgan White Cap (Shanghai) Co., Ltd.
Silgan White Cap de Venezuela, S.A.
SWC Holdings Brasil Participacoes Ltda.
Silgan White Cap Rus o.o.o
Exhibit 10.3
FOURTH AMENDMENT TO CREDIT AGREEMENT (this "Amendment"), dated as of April 30, 2009, among SILGAN HOLDINGS INC., a Delaware corporation ("Silgan"), SILGAN CONTAINERS LLC, a Delaware limited liability company ("Containers"), SILGAN PLASTICS LLC, a Delaware limited liability company ("Plastics"), SILGAN CONTAINERS MANUFACTURING CORPORATION, a Delaware corporation ("Manufacturing"), SILGAN CAN COMPANY, a Delaware corporation ("CanCo"), SILGAN WHITE CAP LLC, a Delaware limited liability company ("White Cap"), SILGAN PLASTICS CANADA INC., an Ontario corporation ("Silgan Plastics Canada"), 827599 ONTARIO INC., an Ontario corporation ("Canadian Holdco" and, together with Silgan, Containers, Plastics, Manufacturing, CanCo, White Cap and Silgan Plastics Canada, the "Borrowers," and each individually, a "Borrower"), the lenders from time to time party to the Credit Agreement referred to below (each a "Lender" and, collectively, the "Lenders"), and DEUTSCHE BANK AG NEW YORK BRANCH, as administrative agent (in such capacity, the "Administrative Agent"), and acknowledged and agreed to by each of the other Credit Parties. Unless otherwise defined herein, all capitalized terms used herein and defined in the Credit Agreement referred to below are used herein as therein defined.
WHEREAS, the Borrowers, the Lenders, the Administrative Agent, the Co-Syndication Agents and the Co-Documentation Agents have entered into a Credit Agreement, dated as of June 30, 2005 (as amended, modified and supplemented through, but not including, the date hereof, the "Credit Agreement"); and
WHEREAS, subject to the terms and conditions set forth herein, the parties hereto wish to amend certain provisions of the Credit Agreement as provided herein;
NOW, THEREFORE, it is agreed;
1. Section 4.01(a) of the Credit Agreement is hereby amended by deleting clause (v) appearing in the first sentence thereof and inserting the following new clause (v) in lieu thereof:
"(v) each prepayment of any Tranche of Term Loans pursuant to
this Section 4.01(a) shall be applied (1) first, to reduce the
Term Loan Scheduled Repayment of each such Tranche of Term Loans
which is due on December 31 of the year in which such prepayment
is made (it being understood that (x) any voluntary prepayments
of A Term Loans pursuant to this Section 4.01(a) which are made
in 2005 or 2006 shall be applied to the A Term Loan Scheduled
Repayment which is due on December 31, 2007, (y) any voluntary
prepayments of Canadian Incremental Term Loans pursuant to this
Section 4.01(a) which are made in 2005,
2006 or 2007 shall be applied to the respective Incremental Term Loans Scheduled Repayment of such Tranche which is due on December 31, 2008, and (z) any voluntary prepayments of Canadian B Incremental Term Loans pursuant to this Section 4.01(a) which are made in 2006, 2007 or 2008 shall be applied to the respective Incremental Term Loans Scheduled Repayment of such Tranche which is due on December 31, 2009), (2) second, to the extent in excess thereof, with respect to any voluntary prepayments of any Tranche of Term Loans pursuant to this Section 4.01(a) which are made in 2009 only, to reduce the respective Term Loan Scheduled Repayment of each such Tranche of Term Loans which is due on December 31, 2010, and (3) third, to the extent in excess thereof, to reduce the then remaining Term Loan Scheduled Repayments of each such Tranche of Term Loans on a pro rata basis (based upon the then remaining principal amounts of Term Loan Scheduled Repayments of each such Tranche of Term Loans after giving effect to all prior reductions thereto);".
2. Section 4.02(k)(I) of the Credit Agreement is hereby amended by (i)
deleting the text "4.01(a)" each place such text appears in said Section and
inserting the text "4.02(k)" in lieu thereof, (ii) deleting the word "and"
appearing immediately prior to the text "(B)" in the final sentence of said
Section and inserting a comma in lieu thereof and (iii) inserting the following
text immediately preceding the period at the end of said Section:
"and (C) with respect to up to $300,000,000 of Net Debt Proceeds received from the incurrence of Additional Permitted Indebtedness prior to December 31, 2009 and required to be applied in accordance with this Section 4.02(k) pursuant to Section 4.02(h), the amount of such Net Debt Proceeds to be applied to repay principal of outstanding Term Loans shall be allocated among the different Tranches of Term Loans or applied to a single Tranche of Term Loans in each case as Silgan shall specify in a notice to the Administrative Agent and with the amount allocated to each such Tranche of Term Loans to be applied (1) first, to reduce the Term Loan Scheduled Repayment of each such Tranche of Term Loans which is due on December 31, 2009, (2) second, to the extent in excess thereof, to reduce the Term Loan Scheduled Repayment of each such Tranche of Term Loans which is due on December 31, 2010, and (3) third, to the extent in excess thereof, to reduce the then remaining Term Loan Scheduled Repayments of each such Tranche of Term Loans on a pro rata basis (based upon the then remaining principal amounts of such Term Loan Scheduled Repayments of such Tranche of Term Loans after giving effect to all prior reductions thereto); provided, however, if either Silgan fails to specify how such repayment is to be allocated at the time of the respective repayment or a Default or an Event of Default exists at the time of the respective repayment, such repayment shall be applied as provided above in this Section 4.02(k)(I) without regard to this sub-clause (C)".
1. In order to induce the Lenders to enter into this Amendment, each Borrower hereby represents and warrants to each of the Lenders that (i) all of the representations and
warranties contained in the Credit Agreement and in the other Credit Documents are true and correct in all material respects on and as of the Fourth Amendment Effective Date (as defined below), both before and after giving effect to this Amendment (unless such representations and warranties relate to a specific earlier date, in which case such representations and warranties shall be true and correct in all material respects as of such earlier date), and (ii) there exists no Default or Event of Default on the Fourth Amendment Effective Date, both before and after giving effect to this Amendment.
2. This Amendment is limited as specified and shall not constitute a modification, acceptance or waiver of any other provision of the Credit Agreement or any other Credit Document.
3. This Amendment may be executed in any number of counterparts and by the different parties hereto on separate counterparts, each of which counterparts when executed and delivered shall be an original, but all of which shall together constitute one and the same instrument. A complete set of counterparts executed by all the parties hereto shall be lodged with Silgan and the Administrative Agent.
4. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAW OF THE STATE OF NEW YORK.
5. This Amendment shall become effective on the date (the "Fourth Amendment Effective Date") when:
(a) each Borrower, the Required Lenders and the Majority Lenders of each Tranche of outstanding Term Loans shall have signed a counterpart hereof (whether the same or different counterparts) and shall have delivered (including by way of telecopier) same to the Administrative Agent at the applicable Notice Office; and
(b) Silgan shall have paid (or caused to be paid) to the Administrative Agent all fees, costs and expenses (including, without limitation, reasonable legal fees and expenses) payable to the Administrative Agent to the extent then due.
6. From and after the Fourth Amendment Effective Date, all references in the Credit Agreement and each of the other Credit Documents to the Credit Agreement shall be deemed to be references to the Credit Agreement as modified hereby on the Fourth Amendment Effective Date.
* * *
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be duly executed and delivered as of the date first above written.
SILGAN HOLDINGS INC.
By: /s/ Frank W. Hogan, III --------------------------------------- Name: Frank W. Hogan, III Title: Senior Vice President, General Counsel and Secretary |
SILGAN CONTAINERS LLC
SILGAN PLASTICS LLC
SILGAN CONTAINERS MANUFACTURING
CORPORATION
SILGAN CAN COMPANY
SILGAN WHITE CAP LLC
827599 ONTARIO INC.
SILGAN PLASTICS CANADA INC.
By: /s/ Frank W. Hogan, III ---------------------------------------- Name: Frank W. Hogan, III Title: Vice President and Secretary |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
DEUTSCHE BANK AG NEW YORK BRANCH,
Individually and as Administrative Agent
By: /s/Evelyn Thierry ----------------------------------- Name: Evelyn Thierry Title: Vice President By: /s/ Erin Morrissey ----------------------------------- Name: Erin Morrissey Title: Vice President |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
By: /s/ DaleA. Richardson ----------------------------------- Name: Dale A. Richardson Title: VP, Illinois Capital Markets Group |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
AGFIRST FARM CREDIT BANK
By: /s/ Steven J. O'Shea ----------------------------------- Name: Steven J. O'Shea Title: Vice President |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
By: /s/ Donald G. Linderman ----------------------------------- Name: Donald G. Linderman Title: Vice President |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
Bank of America, N.A., Canada Branch
By: /s/ Medina Sales de Andrade ----------------------------------- Name: Medina Sales de Andrade Title: Vice President |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
Bank of America, N.A.
By: /s/ Edwin R. Cox Jr. ----------------------------------- Name: Edwin R. Cox Jr. Title: Senior Vice President |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
By: /s/ William W. Smith ----------------------------------- Name: William W. Smith Title: Deputy General Manager |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
By: /s/ Kenneth Pettis ----------------------------------- Name: Kenneth Pettis Title: SVP. Head of Corporate Syndications |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
By: /s/ Joung Hee Hong ----------------------------------- Name: Joung Hee Hong Title: First Vice President |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
By: /s/ G. Gregoriou ----------------------------------- Name: G. Gregoriou Title: Sr. Client Relationship Manager |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
Bank of Tokyo-Mitsubishi UFJ Trust
Company
By: /s/ Charles Stewart ----------------------------------- Name: Charles Stewart Title: Vice President |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
BNP Paribas
By: /s/ Richard Pace ----------------------------------- Name: Richard Pace Title: Managing Director By: /s/ Nanette Baudon ---------------------------------- Name: Nanette Baudon Title: Vice President |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
By: /s/ Ron Walker ----------------------------------- Name: Ron Walker Title: Senior Vice President |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
By: /s/ George F. Van ----------------------------------- Name: George F. Van Title: VP & Managing Director |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
CoBank, ACB
By: /s/ Hal Nelson ----------------------------------- Name: Hal Nelson Title: Vice President |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES NAME OF INSTITUTION:
COOPERATIEVE CENTRALE RAIFFEISEN-
BOERENLEENBANK B.A. "Rabobank
Nederland", New York Branch
By: /s/ Betty Mills ----------------------------------- Name: Betty Mills Title: Executive Director By: /s/ Brett Delfino ----------------------------------- Name: Brett Delfino Title: Executive Director |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
By: /s/ Anthony Rock ----------------------------------- Name: Anthony Rock Title: Managing Director By: /s/ Brian O'Leary ----------------------------------- Name: Brian O'Leary Title: Managing Director |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
By: /s/ Rod O'Hara ----------------------------------- Name: Rod O'Hara Title: Director By: /s/ Marcellus Leung ----------------------------------- Name: Marcellus Leung Title: Assistant Vice President |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
ERSTE GROUP BANK AG
By: /s/ Brandon A. Meyerson ----------------------------------- Name: Brandon A. Meyerson Title: Director ERSTE GROUP BANK AG By: /s/ Bryan J. Lynch ----------------------------------- Name: Bryan J. Lunch Title: Executive Director ERSTE GROUP BANK AG |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
FCS FINANCIAL, FLCA, formerly known as
Farm Credit Services of Missouri, FLCA
By: /s/ Sean Unterreiner ----------------------------------- Name: Sean Unterreiner Title: Senior Lending Officer |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
By: /s/ Douglas Riahi ----------------------------------- Name: Douglas Riahi Title: Managing Director By: /s/ Steven D. Silverstein ----------------------------------- Name: Steven D. Silverstein Title: Director |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
GE Canada Finance Holding Company
By: /s/ Nick Lalani ----------------------------------- Name: Nick Lalani Title: Duly Authorized Signatory |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
General Electric Capital Corporation, As
Administrator For, GE Commerical Loan
Holding LLC:
By: /s/ Amanda J. Van Heyst ----------------------------------- Name: Amanda J. Van Heyst Title: Duly Authorized Signatory |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
General Electric Capital Corporation
By: /s/ James R. Persico ----------------------------------- Name: James R. Persico Title: Duly Authorized Signatory |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
By: /s/ Jeff Pavlik ----------------------------------- Name: Jeff Pavlik Title: Vice President |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
By: /s/ D. Scott Farquhar ----------------------------------- Name: D. Scott Farquhar Title: Vice President |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
By: /s/ Melissa James ----------------------------------- Name: Melissa James Title: Authorized Signatory |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
PEOPLE'S UNITED BANK (formerly known
as People's Bank):
By: /s/ Francis J. McGinn ----------------------------------- Name: Francis J. McGinn Title: Vice President |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
RBS Citizens N.A.
By: /s/ Thomas F. McNamara ----------------------------------- Name: Thomas F. McNamara Title: Senior Vice President |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
RZB Finance LLC:
By: /s/ Christoph Hoedl ----------------------------------- Name: Christoph Hoedl Title: First Vice President By: /s/ Randall Abrams ----------------------------------- Name: Randall Abrams Title: Vice President |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
By: /s/ Dean Stephan ----------------------------------- Name: Dean Stephan Title: Managing Director |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
The Bank of Tokyo-Mitsubishi UFJ, Ltd.
By: /s/ Charles Stewart ---------------------------------- Name: Charles Steward Title: Vice President |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
By: /s/ Edward A. Boyle ----------------------------------- Name: Edward A. Boyle Title: Sr. VP By: /s/ Louise O'Connor ----------------------------------- Name: Louise O'Connor Title: VP |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
THE NORTHERN TRUST COMPANY:
By: /s/ Tamara M. Dowd ----------------------------------- Name: Tamara M. Dowd Title: Vice President |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
Union Bank, N.A. (fka Union Bank of
California, N.A.)
By: /s/ Christina J. Buck ----------------------------------- Name: Christina J. Buck Title: Vice President |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
UNITED OVERSEAS BANK LIMITED, NEW
YORK AGENCY
By: /s/ George Lim ----------------------------------- Name: George Lim Title: SVP & GM By: /s/ Mario Shaw ----------------------------------- Name: Mario Shaw Title: AVP |
SIGNATURE PAGE TO THE FOURTH AMENDMENT
TO THE CREDIT AGREEMENT, DATED AS OF THE
DATE FIRST WRITTEN ABOVE, AMONG SILGAN
HOLDINGS INC., SILGAN CONTAINERS LLC,
SILGAN PLASTICS LLC, SILGAN CONTAINERS
MANUFACTURING CORPORATION, SILGAN CAN
COMPANY, SILGAN WHITE CAP LLC, SILGAN
PLASTICS CANADA INC., 827599 ONTARIO
INC., THE LENDERS FROM TIME TO TIME
PARTY TO THE CREDIT AGREEMENT, AND
DEUTSCHE BANK AG NEW YORK BRANCH, AS
ADMINISTRATIVE AGENT, AND ACKNOWLEDGED
AND AGREED TO BY EACH OF THE OTHER
CREDIT PARTIES
NAME OF INSTITUTION:
Wachovia Bank, National Association
By: /s/ Robert G. McGill Jr. ----------------------------------- Name: Robert G. McGill Jr. Title: Director |
ACKNOWLEDGED AND AGREED
AS OF THE DATE WRITTEN ABOVE:
SILGAN LLC
By: Silgan Containers LLC,
as Manager
SILGAN CORPORATION
SILGAN CAN HOLDING COMPANY
SILGAN PLASTICS CORPORATION
SILGAN WHITE CAP CORPORATION
SILGAN WHITE CAP AMERICAS LLC
SILGAN CLOSURES INTERNATIONAL HOLDING COMPANY
SILGAN EQUIPMENT COMPANY
SILGAN TUBES HOLDING COMPANY
828745 ONTARIO INC.
827599 ONTARIO INC.
SILGAN PLASTICS CANADA INC.
By: /s/ Frank W. Hogan, III ------------------------------------ Name: Frank W. Hogan, III Title: Vice President and Secretary |
Exhibit 10.4
SILGAN CONTAINERS CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
THIS INDENTURE is made on the 21st day of January, 2008, by Silgan Containers Corporation, a corporation duly organized and existing under the laws of the State of Delaware (hereinafter called the "Primary Sponsor").
The Primary Sponsor maintains the Silgan Containers Corporation Supplemental Executive Retirement Plan (the "Plan"), which is intended to benefit only a select group of management or highly compensated employees within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA, and any regulations relating thereto.
The Primary Sponsor has determined that employees hired or rehired on or after January 1, 2007 shall not be eligible for the supplemental pension portion of the Plan, consistent with the exclusion of those employees from the Pension Plan (as defined in the Plan). The Primary Sponsor has determined that the Plan previously adopted by the Primary Sponsor needs to be amended in certain other respects, including to conform to the requirements of Code Section 409A and the applicable guidance thereunder. Therefore, the Primary Sponsor declares that the Plan is amended and restated in its entirety effective January 1, 2007, except as otherwise provided herein, to read as follows:
SILGAN CONTAINERS CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
ARTICLE 1 DEFINITIONS........................................................1
ARTICLE 2 ELIGIBILITY AND DEFERRAL ELECTIONS.................................6
ARTICLE 3 CONTRIBUTIONS......................................................7
ARTICLE 4 INDIVIDUAL FUNDS AND INVESTMENTS...................................8
ARTICLE 5 WITHDRAWALS DURING EMPLOYMENT......................................9
ARTICLE 6 GENERAL RULES ON DISTRIBUTIONS.....................................9
ARTICLE 7 ADMINISTRATION OF THE PLAN........................................12
ARTICLE 8 CLAIMS REVIEW PROCEDURE...........................................13
ARTICLE 9 INCOMPETENT DISTRIBUTEE AND UNCLAIMED PAYMENTS....................15
ARTICLE 10 LIMITATION OF RIGHTS..............................................16
ARTICLE 11 AMENDMENT TO OR TERMINATION OF THE PLAN AND THE TRUST.............16
Wherever used herein, the masculine pronoun shall be deemed to include the feminine, and the singular to include the plural, unless the context clearly indicates otherwise and the following words and phrases shall, when used herein, have the meanings set forth below:
(a) any corporation which is a member of the same controlled group of corporations (within the meaning of Code Section 414(b)) as is a Plan Sponsor; and
(b) any other trade or business (whether or not incorporated) under common control (within the meaning of Code Section 414(c)) with a Plan Sponsor.
(a) Annual Compensation shall be determined without consideration of the Annual Compensation Limit and before any Deferral Contributions made under this Plan; and
(b) Annual Compensation shall include amounts paid by an Affiliate.
has been established, or no successor Beneficiary has been designated who is alive, the term "Beneficiary" means:
(a) the Participant's spouse; or
(b) if no spouse is alive at the date of the Participant's death, the Participant's children, per stirpes; or
(c) if no children or none of the children's issue are alive at the date of the Participant's death, the Participant's estate.
A Participant may change his designation at any time. If, subsequent to the
death of a Participant, the Participant's Beneficiary dies while entitled to
receive benefits under the Plan, the successor Beneficiary, if any, or the
Beneficiary listed under Subsection (a) or, if no spouse is alive, Subsection
(b) or, if no children (or children's issue) are alive, Subsection (c) shall be
the Beneficiary.
1.6 "Board of Directors" means the Board of Directors of the Primary Sponsor. --------------------
(a) a "change in ownership of a corporation" as defined, and subject to the limitations, in Code Section 409A and the regulations and related guidance thereunder;
(b) a "change in effective control of a corporation" as defined, and subject to the limitations, in Code Section 409A and the regulations and related guidance thereunder; or
(c) a "change in ownership of a substantial portion of a corporation's assets" as defined, and subject to the limitations, in Code Section 409A and the regulations and related guidance thereunder, but substituting "eighty-five percent (85%)" for the phrase "40 percent" in Treasury Regulation Section 1.409A-3(i)(5)(vii)(A), or any successor thereto.
Notwithstanding the foregoing, no Change in Control shall be deemed to have occurred with respect to a particular Eligible Employee by reason of any actions or events in which the Eligible Employee participates in a capacity other than in the Eligible Employee's capacity as an employee or director of the Primary Sponsor or an Affiliate or as a shareholder of the Primary Sponsor or an Affiliate solely exercising the Eligible Employee's voting or tendering rights.
(a) DISP Compensation shall be determined without consideration of the Annual Compensation Limit; and
(b) solely for purposes of calculating DISP Make-up Contributions for Plan Years ending before January 1, 2006, DISP Compensation shall include any bonus paid under the Primary Sponsor's Performance Incentive Program and any bonus paid under the bonus program for senior executives of Silgan Holdings, Inc.
(a) with respect to contributions for the Plan Year in which an Eligible Employee becomes initially eligible to participate in the Plan, the thirty (30)-day period commencing with the date an Eligible Employee first becomes eligible to participate in the Plan; provided that such Eligible Employee has not, for a period of at least twenty-four (24) months prior to such initial eligibility, been eligible to participate in the Plan or in any other plan of the Employer Group (other than accruing earnings under the Plan or such plan) that
(1) with respect to the Deferral Contribution portion of the Plan, is an Account Balance Plan that provides for deferrals of compensation at the election of the Eligible Employee; and
(2) with respect to the Matching Contribution portion, the DISP Make-up Contribution portion, and the Supplemental Pension Portion of the Plan, is an Account Balance Plan that provides for deferrals of compensation other than at the election of the Eligible Employee.
For this purpose, an "Account Balance Plan" means plan described in Treasury Regulation Section 1.409A-1(c)(2)(A).
(b) with respect to contribution for any other Plan Year, the period ending before the beginning of such Plan Year as prescribed by the Plan Administrator.
(a) his base salary;
(b) any bonus paid under the Primary Sponsor's Performance Incentive Program; and
(c) any bonus paid under the bonus program for senior executives of Silgan Holdings, Inc.
(a) is an officer of a Plan Sponsor or Silgan Holdings, Inc.;
(b) is projected, based on his rate of base pay and projected bonus as of January 1 of a Plan Year, to have Annual Compensation in excess of the Annual Compensation Limit (without regard to whether such employee's Annual Compensation exceeds such Annual Compensation Limit);
(c) is determined by the Plan Administrator in its sole discretion to be a member of a select group of management or highly compensated employees of that Plan Sponsor within the meaning of Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA, and any regulations relating thereto; and
(d) was both employed by the Primary Sponsor and a Participant in this Plan on January 1, 2007 or, thereafter is designated as an Eligible Employee by the Board of Directors.
(a) the attainment of at least age sixty (60) with the completion of ten (10) or more Periods of Service; or
(b) the attainment of at least age sixty-five (65) with the completion of five (5) or more Periods of Service.
(1) Except as provided in this Subsection (b), any Deferral Election for all or a portion of a Plan Year shall be irrevocable during such Plan Year. Furthermore, any such Deferral Election shall continue to apply to all Eligible Compensation earned for Plan Years after such election is made until the Participant revokes or changes his Deferral Election in accordance with the terms of the Plan.
(2) A Participant's Deferral Election shall be revoked upon a Participant receiving a hardship distribution under the Savings Plan. Such Participant may not again make Deferral Contributions to this Plan until the Plan Year following the end of the Minimum Suspension Period. The "Minimum Suspension Period" is the six (6) month period beginning on the date of the hardship distribution.
(3) A Participant's Deferral Election shall be revoked upon a Participant demonstrating to the Plan Administrator in such form an manner as my be specified by the Plan Administrator from time to time that he is suffering from an Unforeseeable Emergency. Such Participant may not again make Deferral Contributions to this Plan until the Plan Year following the Plan Year in which Deferral Contributions cease under this Plan Section 2.2(b)(3).
(a) the Participant's projected normal retirement benefit under the
Pension Plan calculated using the Participant's "Final Average Rate of
Compensation" (as defined in the Pension Plan) without regard to (i) the
"Final Average Cap" (as defined in the Pension Plan), (ii) the Annual
Compensation Limit, and (iii) the limitation imposed by Code Section
415(b); less
(b) the Participant's projected normal retirement benefit under the Pension Plan;
Notwithstanding the foregoing or the definition of "Compensation" in the Pension Plan, for purposes of determining the portion of the Participant's projected normal retirement benefit in Section 3.4(a) above, for Periods of Service ending before January 1, 2006, a Participant's "Final Average Rate of Compensation" shall be determined as if bonuses paid under the Primary Sponsor's Performance Incentive Program and bonuses paid under the bonus program for senior executives of Silgan Holdings, Inc. were not excluded from the definition of "Compensation" in the Pension Plan.
(a) All investment directions, or changes in investment directions, of contributions shall be made in accordance with the procedures established by the Plan Administrator. New investment directions shall be effective as of the date that such directions are processed by the Plan Administrator in accordance with the procedures established for such purpose.
(b) An investment direction, once given, shall be deemed to be a continuing direction until changed as otherwise provided herein. If no direction is effective for the date a contribution is to be made, all contributions which are to be made for such date shall be invested in such individual fund as the Plan Administrator or the Trustee, as applicable, may determine. Neither the Trustee nor any Plan Sponsor, employee of a
Plan Sponsor, nor the Plan Administrator shall be liable for any loss, which results from a Participant's exercise or failure to exercise his investment election.
(a) through reimbursement or compensation from insurance or otherwise;
(b) by liquidation of the Participant's assets (to the extent such liquidation would not cause severe financial hardship); or
(c) by cessation of Deferral Contributions under Plan Section 2.2(b)(3).
(a) A Participant who has a Separation from Service shall commence distribution of his vested Account within the thirty (30) day period which begins on the sixth month anniversary of the date of the Participant's Separation from Service. Such distribution shall be made:
(1) in the case of a Participant who has a Separation from Service prior to his Normal Retirement Age, in a single lump sum distribution;
(2) in the case of a Participant who has a Separation from Service on or after his Normal Retirement Age, in the form or forms elected by the Participant pursuant to Plan Section 6.2; or
(3) in the event a Participant who has a Separation from Service on or after his Normal Retirement Age has failed to make an election concerning the form of payment of such Participant's vested Account, in a lump sum distribution.
(b) Notwithstanding Subsection (a), upon a Participant's death, all vested benefits for such Participant under the Plan shall be paid to the Participant's Beneficiary in one lump sum as soon as administratively practicable, but no later than ninety (90) days, following the Participant's death. If a Participant is receiving installment payments as of the date of the payment under this Section, the remainder of such installment payments will be paid in one lump sum.
(a) During an Eligible Employee's initial Election Period, he may elect, in such form and manner as determined by the Plan Administrator, one of the forms of payment under Subsection (b) for his vested Account in the event that his vested Account is distributed pursuant to Section 6.1(a)(2). An election under this Subsection shall become irrevocable immediately following such Election Period. With respect to an individual who ceases to be an Eligible Employee and then again becomes an Eligible Employee, such individual's first election under this Subsection shall apply.
(b) The Eligible Employee or Participant may elect pursuant to Subsection (a) to receive payment of the vested portion of his Account upon his Separation from Service on or after his attainment of Normal Retirement Age in one of the following forms:
(1) A lump sum distribution;
(2) Substantially equal annual installments over five (5) years;
(3) Substantially equal annual installments over ten (10) years;
(4) Substantially equal annual installments over fifteen (15) years; or
(5) Such other annual installment payment method to which the Primary Sponsor consents;
provided, however, that each annual installment under Subsections (2) through
(5) shall be treated as a separate payment for purposes of Code Section 409A.
(a) A Participant who has made an election under Section 6.2 for a lump sum payment (or is deemed to have made an election under Section 6.1(a)(3)), with respect to payment of his vested Account under Section 6.1(a)(2) may elect to delay receipt of such lump sum payment for five (5) years following the date such payment would have otherwise been made.
(b) A Participant who has made an election under Section 6.2 for installment payments over five (5) or more years, with respect to the payment of his vested Account under Section 6.1(a)(2) may elect to defer receipt of the first, and only the first, such installment payment, which shall then be paid in the year following the year in which the last installment would, but for such election, have been otherwise payable.
(c) Any election under Subsection (a) or (b) of this Section shall be subject to the following requirements:
(i) the election under this Plan Section 6.3 must not take effect until twelve (12) months after the election is made;
(ii) the Participant must not have made a prior election under this Section 6.3.
(a) no such election shall provide for payment of an amount in the calendar year of such election (the "Election Year") that would not have otherwise been paid in the Election Year pursuant to the Participant's prior election; and
(b) no such election shall provide for payment of an amount in a calendar year other than the Election Year that would have otherwise been paid in the Election Year pursuant to the Participant's prior election.
Periods of Service Vested Percentage ------------------ ----------------- Less than 5 0% 5 or more 100% |
(a) The Plan Administrator shall advise the Plan Sponsor with respect to all payments under the terms of the Plan and shall direct the Plan Sponsor in writing to make such payments; provided, however, in no event shall the Plan Sponsor make such payments if the Plan Sponsor has actual knowledge that such payments are contrary to the terms of the Plan.
(b) The Plan Administrator shall from time to time establish rules, not contrary to the provisions of the Plan and the Trust, for the administration of the Plan and the transaction of its business. All elections and designations under the Plan by a Participant or Beneficiary shall be made on forms prescribed by the Plan Administrator. The Plan Administrator shall have discretionary authority to construe the terms of the
Plan and shall determine all questions arising in the administration, interpretation and application of the Plan, including, but not limited to, those concerning eligibility for benefits and it shall not act so as to discriminate in favor of any person. All determinations of the Plan Administrator shall be conclusive and binding on all employees, Participants, and Beneficiaries, subject to the provisions of the Plan and the Trust and subject to applicable law.
(c) The statement of specific duties for a Plan Administrator in this
Section is not in derogation of any other duties which a Plan Administrator
has under the provisions of the Plan or the Trust or under applicable law.
(a) the specific reasons for the denial;
(b) specific references to the pertinent provisions of the Plan on which the denial is based;
(c) a description of any additional material or information necessary for the claimant to perfect the claim and an explanation of why such material or information is necessary; and
(d) an explanation of the Plan's claim review procedures, and the time limits applicable to such procedures, including a statement of the claimant's right to bring a civil action under Section 502(a) of ERISA following an adverse benefit determination on review.
(a) request a full and fair review of the denial of the claim by written application to the Plan Administrator;
(b) request, free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claim;
(c) submit written comments, documents, records, and other information relating to the denied claim to the Plan Administrator; and
(d) a review that takes into account all comments, documents, records, and other information submitted by the claimant relating to the claim, without regard to whether such information was submitted or considered in the initial benefit determination.
writing to the claimant involved and to his representative, if any, unless the Plan Administrator determines that special circumstances (such as the need to hold a hearing) require an extension of time, to a day no later than one hundred twenty (120) days after the date of receipt of the written application for review. If the Plan Administrator determines that the extension of time is required, the Plan Administrator shall furnish to the claimant written notice of the extension before the expiration of the initial sixty (60) day period. The extension notice shall indicate the special circumstances requiring an extension of time and the date by which the Plan Administrator expects to render its decision on review. In the case of a decision adverse to the claimant, the Plan Administrator shall provide to the claimant written notice of the denial which shall include:
(a) the specific reasons for the decision;
(b) specific references to the pertinent provisions of the Plan on which the decision is based;
(c) a statement that the claimant is entitled to receive, upon request and free of charge, reasonable access to, and copies of, all documents, records, and other information relevant to the claimant's claim for benefits; and
(d) an explanation of the Plan's claim review procedures, and the time limits applicable to such procedures, including a statement of the claimant's right to bring an action under Section 502(a) of ERISA following the denial of the claim upon review.
Participation in the Plan shall not give any employee any right or claim other than as unsecured general creditor of a Plan Sponsor. The adoption of the Plan and the Trust by any Plan Sponsor shall not be construed to give any employee a right to be continued in the employ of a Plan Sponsor or as interfering with the right of a Plan Sponsor to terminate the employment of any employee at any time.
(a) The Primary Sponsor may terminate and liquidate the Plan within twelve (12) months of a corporate dissolution taxed under Code Section 331, or with the approval of a bankruptcy court pursuant to 11 U.S.C. ss.503(b)(1)(A), provided that the vested Accounts distributed from Plan are included in the Participants' respective gross incomes in the latest of the following years (or, if earlier, the taxable year in which the amount is actually or constructively received):
(1) The calendar year in which the Plan termination and liquidation occurs;
(2) The first calendar year in which the Account is no longer subject to a substantial risk of forfeiture; or
(3) The first calendar year in which the payment of the vested Account is administratively practicable.
(b) The Primary Sponsor may terminate and liquidate the Plan pursuant to irrevocable action taken by the Primary Sponsor within the thirty (30) days preceding or the twelve (12) months following a Change in Control, provided that this Subsection will only apply to a payment under the Plan if all agreements, methods, programs, and other arrangements sponsored by the Employer Group immediately after the Change in Control with respect to which deferrals of compensation are treated as having been deferred under a single plan under Treasury Regulations Section 1.409A-1(c)(2) are terminated and liquidated with respect to each participant that experienced the Change in Control, so that under the terms of the termination and liquidation, all such participants are required to receive all amounts of compensation deferred under the terminated agreements, methods, programs, and other arrangements within twelve (12) months of the date the Employer Group irrevocably takes all necessary action to terminate and liquidate the agreements, methods, programs, and other arrangements. Solely for purposes of this Subsection (b), where the Change in Control event results from an asset purchase transaction, the applicable member of the Employer Group with the discretion to liquidate and terminate the agreements, methods, programs, and other arrangements is the member of the Employer Group that is primarily liable immediately after the transaction for the payment of the deferred compensation.
(c) The Primary Sponsor may terminate and liquidate the Plan, provided that
(1) The termination and liquidation does not occur proximate to a downturn in the financial health of any member of the Employer Group;
(2) Every member of the Employer Group terminates and liquidates all agreements, methods, programs, and other arrangements sponsored by the any member of the Employer Group that would be aggregated with any terminated and liquidated agreements, methods, programs, and other arrangements under Treasury Regulations Section 1.409A-1(c) if a Participant had deferrals of compensation under all of the agreements, methods, programs, and other arrangements that are terminated and liquidated;
(3) No payments in liquidation of the Plan are made within twelve
(12) months of the date the Primary Sponsor takes all necessary action
to irrevocably terminate and liquidate the Plan other than payments
that would be payable under the terms of the Plan if the action to
terminate and liquidate the Plan had not occurred;
(4) All payments are made within twenty-four (24) months of the date the Primary Sponsor takes all necessary action to irrevocably terminate and liquidate the Plan; and
(5) No member of the Employer Group adopts a new plan that would be aggregated under Treasury Regulations Section 1.409A-1(c) with any plan terminated and liquidated pursuant to this Subsection if any such plan covers any employee who was a participant in any such plan, at any time within three years
following the date the Primary Sponsor takes all necessary action to irrevocably terminate and liquidate the Plan.
(d) By ceasing any and all contributions to the Plan or taking any such other action to terminate the Plan as the Primary Sponsor deems appropriate, in which event the payment of Participants' vested Accounts under the Plan will be made at the time and in the form as they would otherwise have been made had the Plan not been terminated.
IN WITNESS WHEREOF, the Primary Sponsor has adopted this Plan effective as of the date first set forth above.
SILGAN CONTAINERS CORPORATION
By: /s/ Anthony E. Cost ------------------------------- Name: Anthony E. Cost ----------------------------- Title: V.P. Human Resources -------------------- |
FIRST AMENDMENT TO THE
SILGAN CONTAINERS CORPORATION
SUPPLEMENTAL EXECUTIVE RETIREMENT PLAN
THIS FIRST AMENDMENT is made on November 1, 2008, by SILGAN CONTAINERS CORPORATION, a corporation duly organized and existing under the laws of the State of Delaware (the "Sponsoring Employer").
WHEREAS, the Sponsoring Employer maintains the Silgan Containers Corporation Supplemental Executive Retirement Plan (the "Plan"), as amended and restated effective January 1, 2007;
WHEREAS, subsequent to the adoption of the amended and restated Plan, the Sponsoring Employer adopted the amended and restated Silgan Containers Corporation Pension Plan for Salaried Employees (the "Salaried Pension Plan") effective July 1, 2008;
WHEREAS, certain definitions in the Plan refer to definitions in the Salaried Pension Plan;
WHEREAS, the Sponsoring Employer desires to amend the Plan to clarify the application of certain terms in the Salaried Pension Plan to participants in the Plan; and
WHEREAS, this amendment shall supersede the provisions of the Plan to the extent those provisions are inconsistent with the provisions of this amendment.
NOW, THEREFORE, the Sponsoring Employer does hereby amend the Plan, effective as of July 1, 2008, as follows:
1. By deleting the existing Section 1.18 and substituting therefor the following:
(a) the attainment of at least age sixty (60) with the completion of ten
(10) or more years of Vesting Service; or
(b) the attainment of at least age sixty-five (65) with the completion of five (5) or more years of Vesting Service."
2. By deleting the existing Section 1.21 and substituting therefor the following:
3. By adding the following new Section 1.34:
4. By deleting the existing Section 6.6 and substituting therefor the following:
Full Years of Vesting Service Vested Percentage ----------------------------- ----------------- Less than 5 0% 5 or more 100%" |
Except as specifically amended hereby, the Plan shall remain in full force and effect as prior to this First Amendment.
IN WITNESS WHEREOF, the Sponsoring Employer has caused this First Amendment to be executed as of the day and year first above written.
SILGAN CONTAINERS CORPORATION
By: /s/ Anthony E. Cost ------------------------------------ Title: Vice-President - Human Resources -------------------------------- |
Exhibit 10.5
SILGAN PLASTICS SUPPLEMENTAL
SAVINGS AND PENSION PLAN
SUPPLEMENTAL PENSION PLAN
1997 RESTATEMENT
SILGAN PLASTICS SUPPLEMENTAL
SAVINGS AND PENSION PLAN
SUPPLEMENTAL PENSION PLAN
1997 RESTATEMENT
TABLE OF CONTENTS
ARTICLE I - ESTABLISHMENT AND PURPOSE..........................................1 1.1 History and Structure..............................................1 1.2 Purpose............................................................1 1.3 Type of Plan.......................................................1 ARTICLE II - DEFINITIONS.......................................................3 ARTICLE III - RETIREMENT BENEFITS..............................................3 3.1 Limitations........................................................3 3.2 Annual Contribution Amount.........................................4 3.3 Supplemental Pension Formula.......................................5 3.4 Transfer of Funds..................................................5 3.5 Participant's Accounts.............................................5 3.6 Vesting............................................................6 ARTICLE IV - PAYMENT OF BENEFITS...............................................7 4.1 Form of Payment....................................................7 4.2 Time of Payment....................................................7 4.3 Death Benefits................................. ...................7 ARTICLE V - SOURCES OF PAYMENTS................................................9 ARTICLE VI - PLAN ADMINISTRATOR................................................9 6.1 Plan Administrator.................................................9 6.2 Standard of Conduct................................................9 ARTICLE VII - NONALIENATION OF BENEFITS.......................................10 ARTICLE VIII - AMENDMENT AND TERMINATION......................................10 i |
ARTICLE IX - GENERAL PROVISIONS...............................................10 9.1 Plan Not a Contract of Employment.................................10 9.2 Construction of Terms.............................................10 9.3 Successors........................................................11 9.4 Official Actions..................................................11 9.5 Controlling State Law.............................................11 9.6 Severability......................................................11 9.7 Withholding.......................................................11 |
SILGAN PLASTICS SUPPLEMENTAL
SAVINGS AND PENSION PLAN
SUPPLEMENTAL PENSION PLAN
1997 RESTATEMENT
ARTICLE I
ESTABLISHMENT AND PURPOSE
1.1 History and Structure. The Silgan Plastics Supplemental Savings and Pension Plan is comprised of two components: the Contributory Retirement Plan and the Supplemental Pension Plan. The Supplemental Pension Plan component of the Silgan Plastics Supplemental Savings and Pension Plan initially was adopted by an instrument dated April 29, 1996. The Plan initially was structured as a traditional defined benefit supplemental plan, which provided a retirement income benefit based on a formula for highly compensated employees whose benefit in the qualified defined benefit plan maintained by Silgan Plastics Corporation was curtailed by the limits applicable to qualified plans.
Silgan Plastics Corporation now wishes to replace the defined benefit formula with a defined contribution formula. As amended by this 1997 Restatement, the Plan provides a benefit for highly compensated employees whose benefit under the Silgan Plastics Corporation Pension Plan for Salaried Employees is curtailed by certain limitations imposed by the Internal Revenue Code on qualified plans. In general, the present value of the amount of the pension that is so curtailed will be calculated as of the end of each year; such amount will be credited to the account of the Participant; the account will be adjusted for earnings and losses; and the Participant's retirement income benefit will be determined solely by the amount credited to the account of the Participant from time to time.
The terms and conditions of the Contributory Retirement Plan component of the Silgan Plastics Supplemental Savings and Pension Plan are set forth in a separate instrument.
1.2 Purpose. The Supplemental Pension Plan is intended to provide benefits to participants in the Silgan Plastics Corporation Pension Plan For Salaried Employees (the "Pension Plan") whose benefits are curtailed by certain limitations imposed by the Internal Revenue Code on qualified plans.
1.3 Type of Plan. The Supplemental Pension Plan is intended as a
nonqualified unfunded deferred compensation plan for federal income tax
purposes. For purposes of the Employee Retirement Income Security Act of 1974
("ERISA") the Supplemental Pension Plan is structured as two plans. The portion
of the Supplemental Pension Plan that provides benefits based on limitations
imposed by Section 415 of the Internal Revenue Code is intended to be an "excess
benefit plan" as described in Section 4(b)(5) of ERISA. The portion of the
Supplemental Pension Plan that provides benefits based on limitations imposed by
Section 401(a)(17) of the Internal Revenue Code is intended to be a plan
described in Sections 201(2), 301(a)(3) and
401(a)(1) of ERISA providing benefits to a select group of management or highly compensated employees.
ARTICLE II
DEFINITIONS
2.1 (a) Unless otherwise expressly qualified by the terms or the context of this Supplemental Pension Plan, the terms used in this Supplemental Pension Plan shall have the same meanings as those terms in the Pension Plan.
(b) "Benefit Amount" shall mean the amount payable to a Participant pursuant to this Supplemental Pension Plan, which is the amount credited to the Supplemental Pension Account of a Participant from time to time in accordance with Article III.
(c) "Eligible Participant" shall mean Participants in the Pension Plan whose benefits in the Pension Plan are curtailed by the Limitations prescribed in Section 3.1.
(d) "Employer" shall mean Silgan Plastics Corporation.
(e) "Excess Compensation shall mean the Covered Compensation of a Plan Participant for a Plan Year in excess of the limitation imposed by Section 401(a)(17) of the Code on the maximum amount of compensation that may be considered under the Pension Plan for such Plan Year.
(f) "Pension Participant" shall mean a Participant in the Pension Plan.
(g) "Pension Plan" shall mean the Silgan Plastics Corporation Pension Plan for Salaried Employees, a qualified funded defined benefit pension plan.
(h) "Plan Year" shall mean the calendar year.
(i) "Silgan" shall mean Silgan Plastics Corporation.
(j) "Supplemental Savings and Pension Trust" shall mean the Silgan Plastics Corporation Supplemental Savings and Pension Trust, a Rabbi Trust that is disregarded for purposes of ERISA and is not treated as a separate taxpayer entity for federal income tax purposes.
ARTICLE III
RETIREMENT BENEFITS
3.1 Limitations.
The Supplemental Pension Plan provides a defined contribution pension benefit to compensate an Eligible Participant for the benefit that would be payable to a Pension Participant under the Pension Plan except for the application of either or both of the following limitations:
(a) Benefits not payable under the Pension Plan because of the limitations imposed by Section 401(a)(17) of the Code on the maximum amount of compensation that may be considered in determining the benefit payable under the Pension Plan ("Compensation Limitation") (See Section 5.1 of the Pension Plan.); and
(b) Benefits not payable under the Pension Plan because of the limitations imposed by Section 415 of the Code on the benefit of the Pension Participant ("Section 415 Limitation") (See Article VIII of the Pension Plan).
3.2 Annual Contribution Amount. As of the end of each Plan Year, the Plan Administrator shall determine the annual Supplemental Employer Contribution amount, if any, for each Eligible Participant, as follows:
(a) First, calculate the amount accrued under the Supplemental Pension Formula set forth in Section 3.3 below as of the end of the Plan Year in the form of a Single Life Annuity payable monthly beginning at age 65;
(b) Second, subtract from such monthly amount the highest such monthly benefit determined for such Participant as of the end of any previous Plan Year that resulted in a contribution to the Supplemental Pension Account of such Participant under this Plan;
(c) Third, determine the lump sum present value of such difference, if any, using the applicable mortality table and applicable interest rate prescribed in Section 417(e) of the Internal Revenue Code of 1986 in effect as of the end of such Plan Year. For this purpose the applicable interest rate stability period shall be monthly and the lookback month shall be the third full calendar month preceding the stability period.
Solely in the case of an Eligible Participant who retires while eligible for an Early Retirement Benefit under Section 5.2 of the Pension Plan, as of the Early Retirement Date of the Participant, the Plan Administrator shall determine a special Supplemental Employer Contribution amount, if any, for such Participant, as follows:
(a) First, calculate the amount accrued under the Supplemental Pension Formula set forth in Section 3.3 below as of the Early Retirement Date of the Participant in the form of a Single Life Annuity payable monthly beginning at such Early Retirement Date;
(b) Second, determine the lump sum present value of such benefit, if any, using the applicable mortality table and applicable interest rate prescribed in Section 417(e)
of the Internal Revenue Code of 1986 in effect as of the end of such Plan Year, using the stability period and lookback month described above;
(c) Third, subtract from such lump sum amount the lump such amount calculated pursuant to the immediately preceding paragraph (benefit beginning at age 65) as of the end of the Plan Year that immediately precedes such Early Retirement Date.
If the Early Retirement Date of a Participant coincides with the last day of a Plan Year, the special Early Retirement amount calculated above shall be in lieu of, and not in addition to, the normal annual Supplemental Employer Contribution for that Plan Year.
3.3 Supplemental Pension Formula. The monthly amount of the supplemental pension for purposes of determining the Supplemental Employer Contribution shall be an amount, payable in the form of a Single Life Annuity, equal to the excess of:
(a) the monthly retirement benefit that would have been payable to a Pension Participant under the Pension Plan without regard to the Compensation Limitation and the Section 415 Limitation; over
(b) the amount of the monthly retirement benefit that is in fact payable to such Pension Participant under the Pension Plan.
Such benefit shall be reduced by that portion of the benefit payable from any nonqualified retirement plan maintained by the Monsanto Company or Amoco (including any foreign plans) to the extent that such Monsanto or Amoco benefit duplicates the benefit determined above.
3.4 Transfer of Funds. The Employer shall transfer the Supplemental Employer Contribution amounts determined in accordance with Section 3.2 in cash to the Supplemental Savings and Pension Trust as soon as administratively feasible after such amount is calculated.
3.5 Participant's Accounts. A separate "Supplemental Pension Account" shall be established and maintained for each Participant for whom a Supplemental Employer Contribution is required to be made in accordance with Section 3.2. The Plan Administrator shall record the dollar amount of the Supplemental Employer Contribution of each Participant for each Plan Year to the Participant's Supplemental Pension Account.
The amount credited to the Supplemental Pension Accounts of Participants shall be adjusted no less frequently than annually by the Plan Administrator to reflect earnings, losses, distributions, investment transfers and any other transactions attributable to the investment in the Supplemental Savings and Pension Trust of the amounts allocated to the Accounts of each Participant. The Plan Administrator shall establish such accounting and recordkeeping rules and procedures as are reasonable in the circumstances (such as the nature of the Trust investments) as it in its discretion shall determine; provided that such rules and procedures shall be applied
uniformly to Participants in similar circumstances. A date as of which the Accounts of Participants are so adjusted is referred to in this Plan as an "Accounting Date."
The amount credited to the Accounts of a Participant from time to time as of the most recent Accounting Date shall constitute the Benefit Amount of the Participant at such time.
3.6 Vesting. The Supplemental Pension Amount of a Participant shall be vested at the same rate as the Participant's benefit is vested in the Pension Plan.
ARTICLE IV
PAYMENT OF BENEFITS
4.1 Form of Payment. The normal form of benefit of the Benefit Amount under this Supplemental Pension Plan shall be a single lump sum payment.
A Participant may elect to receive his or her Benefit Amount in annual installments not to exceed ten years. The amount of each installment payment shall be determined under the declining balance accounting method. For example, a five year installment payout would be paid as follows: 1/5 of the Benefit Amount in the first year; 1/4 of the remaining Benefit Amount in the second year; 1/3 of the remaining Benefit Amount in the third year; 1/2 of the remaining Benefit Amount in the fourth year; and the balance of the remaining Benefit Amount in the fifth year.
An election to take installment payments shall be made in writing, in a form prescribed by the Plan Administrator, not later than six months before payment is to commence in accordance with Section 4.2 of this Supplemental Pension Plan. Such an election shall be irrevocable.
4.2 Time of Payment. Payment(s) of the Benefit Amount of a Participant normally shall commence as soon as administratively feasible after Termination of Employment of the Participant.
A Participant may elect to defer receipt of a lump sum payment, or to defer commencement of installment payments, until after the end of the first, second, third, fourth or fifth calendar year beginning after his of her Termination of Employment, or until the Participant attains sixty-five years of age; provided that, the installment payment period can never extend more than ten years following Termination of Employment. For example, the installment payout period of a Participant who elected to defer the commencement of installment payments for four years could not exceed six years.
An election to defer the payment of benefits shall be made in writing, in a form prescribed by the Plan Administrator, not later than six months before payment would normally commence in accordance with this Section. Such an election shall be irrevocable.
4.3 Death Benefits. Each Participant entitled to a Benefit Amount under this Supplemental Pension Plan shall be entitled to a death benefit equal to the entire Benefit Amount of the Participant, whether or not vested. Such benefit shall be payable to the Beneficiary of the Participant in a single lump sum as soon as administratively feasible after the death of the Participant.
Each Participant may designate a Beneficiary or Beneficiaries (contingently, consecutively, or successively) of a death benefit and, from time to time, may change his or her designated Beneficiary. A Beneficiary may be a trust. A beneficiary designation shall be made
in writing in a form prescribed by the Plan Administrator and delivered to the Plan Administrator while the Participant is alive. If there is no designated Beneficiary surviving at the death of a Participant, payment of any death benefit of the Participant shall be made to the persons and in the proportions which any death benefit under the CIP Plan is or would be payable.
ARTICLE V
SOURCES OF PAYMENTS
Benefits payable under this Supplemental Pension Plan shall be paid by the Employer of each Eligible Participant out of its general assets (except as provided below with respect to a Rabbi Trust). Obligations to pay benefits due Eligible Participants under the Supplemental Pension Plan shall be the primary obligation of the Employer. An Eligible Participant shall not have any rights with respect to benefits from the Employer under the Supplemental Pension Plan other than the unsecured right to receive payments from the Employer. The Benefit Amount, as described in Section 3.5, defines the amount payable by the Employer to a Participant under this Supplemental Pension Plan.
Except for the obligation to contribute amounts to the Supplemental Savings and Pension Trust, an Employer shall not be obligated to set aside, earmark or escrow any funds or other assets to satisfy its obligation under this Supplemental Pension Plan. Any benefit payable in accordance with the terms of this Supplemental Pension Plan shall not be represented by a note or any evidence of indebtedness other than the promises contained in this Supplemental Pension Plan and the right to receive payments from the Supplemental Savings and Pension Trust.
The Supplemental Savings and Pension Trust, and any other trust established by the Employer to assist the Employer in meeting its obligations under this Plan, shall conform in substance to the terms of the model trust described in Revenue Procedure 92-64 with respect to the claim of Participants to assets of the Employer and such trust. Payment from the Rabbi Trust of amounts due under the terms of this Supplemental Pension Plan shall satisfy the obligation of the Employer to make such payment out of its general assets. In no event shall any Eligible Participant be entitled to receive payment of an amount from the general assets of the Employer that the Eligible Participant received from the Rabbi Trust.
ARTICLE VI
PLAN ADMINISTRATOR
6.1 Plan Administrator. The Supplemental Pension Plan shall be administered by the person or Committee appointed by Silgan Plastics Corporation to be Plan Administrator of the Pension Plan. The Plan Administrator so appointed shall have all of the authority, rights and duties to administer the Supplemental Pension Plan as is assigned to the Plan Administrator of the Pension Plan. The Plan Administrator may adopt such rules as it may deem necessary, desirable and appropriate to administer the Supplemental Pension Plan. Except as provided in the Rabbi Trust, the decisions of the Plan Administrator, including but not limited to interpretations and determinations of amounts due under this Supplemental Pension Plan, shall be final and binding on all parties.
6.2 Standard of Conduct. The Plan Administrator shall perform its duties as the Plan Administrator and in its sole discretion shall determine what is appropriate in light of the reason
and purpose for which the Supplemental Pension Plan is established and maintained. Except as provided in the Rabbi Trust, the interpretation of all plan provisions and the determination of whether a Participant or Beneficiary is entitled to any benefit pursuant to the terms of the Supplemental Pension Plan, shall be exercised by the Plan Administrator in its sole discretion.
Any Employer that adopts and maintains this Supplemental Pension Plan hereby consents to actions of the Plan Administrator made in its sole discretion.
ARTICLE VII
NONALIENATION OF BENEFITS
Except as may be required by the federal income tax withholding provisions of the Code or by the tax laws of any State, the interests of Eligible Participants and their beneficiaries under this Supplemental Pension Plan are not subject to the claims of their creditors and may not be voluntarily or involuntarily sold, transferred, alienated, assigned, pledged, anticipated, or encumbered. Any attempt by an Eligible Participant, his beneficiary, or any other person to sell, transfer, alienate, assign, pledge, anticipate, encumber, charge or otherwise dispose of any right to benefits payable hereunder shall be void. The Employer may cancel and refuse to pay any portion of a benefit which is sold, transferred, alienated, assigned, pledged, anticipated or encumbered.
ARTICLE VIII
AMENDMENT AND TERMINATION
Silgan Plastics Corporation reserves the right to amend, alter or discontinue this Supplemental Pension Plan at any time; provided that no such amendment may eliminate or diminish the benefit to which any Eligible Participant would have been entitled under this Plan if such Participant had incurred a Termination of Employment immediately before the adoption of such amendment. Such action may be taken by any officer of Silgan who has been duly authorized by the Board of Directors of Silgan to perform acts of such kind. In the event no officer of Silgan has been duly authorized, the Vice President, Administration and Human Resources, of Silgan may take any such action.
ARTICLE IX
GENERAL PROVISIONS
9.1 Plan Not a Contract of Employment. This Supplemental Pension Plan does not constitute a contract of employment, and participation in the Supplemental Pension Plan will not give any Eligible Participant the right to be retained in the employment of any of the Employers.
9.2 Construction of Terms. Words of gender shall include persons and entities of
any gender, the plural shall include the singular, and the singular shall include the plural. Section headings exist for reference purposes only, and shall not be construed as part of the Supplemental Pension Plan.
9.3 Successors. The provisions of this Supplemental Pension Plan shall be binding upon the Employers and their successors and assigns and upon every Eligible Participant and his heirs, beneficiaries, estates and legal representatives.
9.4 Official Actions. Any action required or permitted to be taken by Silgan Plastics Corporation pursuant to the Supplemental Pension Plan may be performed by the Vice President, Administration and Human Resources, or by any other officer or committee of Silgan which has been duly authorized by the Board of Directors to take actions of that kind.
9.5 Controlling State Law. To the extent not superseded by the laws of the United States, the laws of the State of Missouri shall be controlling in all matters relating to this Supplemental Pension Plan.
9.6 Severability. In case any provision of this Supplemental Pension Plan shall be held illegal or invalid for any reason, such illegality or invalidity shall not affect the remaining provisions of the Supplemental Pension Plan, and the Supplemental Pension Plan shall be construed and enforced as if such illegal and invalid provisions had never been set forth.
9.7 Withholding. The Employer shall withhold from amounts due under this Supplemental Pension Plan, the amount necessary to enable the Employer to remit to the appropriate government entity or entities on behalf of the Eligible Participant as may be required by the federal income tax withholding provisions of the Code, by an applicable state's income tax, or by an applicable city, county or municipality's earnings or income tax act. The Employer shall withhold from the payroll of, or collect from, an Eligible Participant the amount necessary to remit on behalf of the Eligible Participant any FICA taxes which may be required with respect to amounts accrued by an Eligible Participant hereunder, as determined by the Employer.
IN WITNESS WHEREOF, Silgan Plastics Corporation has adopted the foregoing instrument this 12 day of February, 1997.
SILGAN PLASTICS CORPORATION
By: /s/ Howard H. Cole ---------------------------------------- Title: Vice President HR & Adm ------------------------------------- |
FIRST AMENDMENT
SILGAN PLASTICS SUPPLEMENTAL
SAVINGS AND PENSION PLAN
1997 RESTATEMENT
The Silgan Plastics Supplemental Savings and Pension Plan (the "Plan") was initially adopted effective April 29, 1996. The Plan has been amended from time to time, most recently in the form of the 1997 Restatement.
Silgan Plastics Corporation now wishes to amend the 1997 Restatement to provide a special rule for calculating the Annual Contribution Amount for the 2001 Plan Year.
NOW, THEREFORE, effective January 1, 2002, Section 3.2 of the Plan is hereby amended to read in its entirety as follows:
3.2 Annual Contribution Amount. As of the end of each Plan Year, the Plan Administrator shall determine the annual Supplemental Employer Contribution amount, if any, for each Eligible Participant, as follows:
(a) First, calculate the amount accrued under the Supplemental Pension Formula set forth in Section 3.3 below as of the end of the Plan Year in the form of a Single Life Annuity payable monthly beginning at age 65; provided that, for the Plan Year ending December 31, 2001, such calculation shall be based on the Compensation Limitation in effect as of January 1, 2002 ($200,000 for all computation years);
(b) Second, subtract from such monthly amount the highest such monthly benefit determined for such Participant as of the end of any previous Plan Year that resulted in a contribution to the Supplemental Pension Account of such Participant under this Plan;
(c) Third, determine the lump sum present value of such difference, if any, using the applicable mortality table and applicable interest rate prescribed in Section 417(e) of the Internal Revenue Code of 1986 in effect as of the end of such Plan Year. For this purpose the applicable interest rate stability period shall be monthly and the lookback month shall be the third full calendar month preceding the stability period.
Solely in the case of an Eligible Participant who retires while eligible for an Early Retirement Benefit under Section 5.2 of the Pension Plan, as of the Early Retirement Date of the Participant, the Plan Administrator shall determine a special Supplemental Employer Contribution amount, if any, for such Participant, as follows:
(a) First, calculate the amount accrued under the Supplemental Pension Formula set forth in Section 3.3 below as of the Early Retirement Date of the Participant in the
Silgan Plastics Corporation First Amendment Supplemental Savings and Pension Plan 1997 Restatement
form of a Single Life Annuity payable monthly beginning at such Early Retirement Date;
(b) Second, determine the lump sum present value of such benefit, if any, using the applicable mortality table and applicable interest rate prescribed in Section 417(e) of the Internal Revenue Code of 1986 in effect as of the end of such Plan Year, using the stability period and lookback month described above;
(c) Third, subtract from such lump sum amount the lump present value
calculated pursuant to the immediately preceding subparagraph of the
amount accrued under the Supplemental Pension Formula set forth in
Section 3.3 below, in the form of a Single Life Annuity payable
monthly beginning at age 65, as of January 1 following of the end of
the Plan Year that immediately precedes such Early Retirement Date.
If the Early Retirement Date of a Participant coincides with the last day of a Plan Year, the special Early Retirement amount calculated above shall be in lieu of, and not in addition to, the normal annual Supplemental Employer Contribution for that Plan Year.
IN WITNESS WHEREOF, Silgan Plastics Corporation has adopted this First Amendment this 4 day of December, 2001.
SILGAN PLASTICS CORPORATION
By: /s/ H.H. Cole ------------------------------------------------- Howard H. Cole Vice President-Human Resources and Administration |
SECOND AMENDMENT
SILGAN PLASTICS SUPPLEMENTAL
SAVINGS AND PENSION PLAN
1997 RESTATEMENT
The Silgan Plastics Supplemental Savings and Pension Plan (the "Plan") was initially adopted effective April 29, 1996. The Plan has been amended from time to time, most recently in the form of the 1997 Restatement and a First Amendment to such Restatement.
Silgan Plastics Corporation now wishes to amend the 1997 Restatement further to change the interest rate for computing benefit accruals.
NOW, THEREFORE, effective January 1, 2003, Section 3.2 of the Plan is hereby amended to read in its entirety as follows:
3.2 Annual Contribution Amount. As of the end of each Plan Year, the Plan Administrator shall determine the annual Supplemental Employer Contribution amount, if any, for each Eligible Participant, as follows:
(a) First, calculate the amount accrued under the Supplemental Pension Formula set forth in Section 3.3 below as of the end of the Plan Year in the form of a Single Life Annuity payable monthly beginning at age 65;
(b) Second, subtract from such monthly amount the highest such monthly benefit determined for such Participant as of the end of any previous Plan Year that resulted in a contribution to the Supplemental Pension Account of such Participant under this Plan;
(c) Third, determine the lump sum present value of such difference, if any, using the applicable mortality table prescribed in Section 417(e) of the Internal Revenue Code of 1986 in effect as of the end of such Plan Year and an interest rate of 8%.
Solely in the case of an Eligible Participant who retires while eligible for an Early Retirement Benefit under Section 5.2 of the Pension Plan, as of the Early Retirement Date of the Participant, the Plan Administrator shall determine a special Supplemental Employer Contribution amount, if any, for such Participant, as follows:
(a) First, calculate the amount accrued under the Supplemental Pension Formula set forth in Section 3.3 below as of the Early Retirement Date of the Participant in the form of a Single Life Annuity payable monthly beginning at such Early Retirement Date;
Silgan Plastics Corporation Second Amendment Supplemental Savings and Pension Plan 1997 Restatement
(b) Second, determine the lump sum present value of such benefit, if any, using the applicable mortality table prescribed in Section 417(e) of the Internal Revenue Code of 1986 in effect as of the end of such Plan Year and an interest rate of 8%;
(c) Third, subtract from such lump sum amount the lump present value
calculated pursuant to the immediately preceding subparagraph of the
amount accrued under the Supplemental Pension Formula set forth in
Section 3.3 below, in the form of a Single Life Annuity payable
monthly beginning at age 65, as of January 1 following of the end of
the Plan Year that immediately precedes such Early Retirement Date.
If the Early Retirement Date of a Participant coincides with the last day of a Plan Year, the special Early Retirement amount calculated above shall be in lieu of, and not in addition to, the normal annual Supplemental Employer Contribution for that Plan Year.
IN WITNESS WHEREOF, Silgan Plastics Corporation has adopted this Second Amendment this 11th day of December, 2003.
SILGAN PLASTICS CORPORATION
By: /s/ H.H. Cole ------------------------------------------------- Howard H. Cole Vice President-Human Resources and Administration |
SILGAN PLASTICS SUPPLEMENTAL
SAVINGS AND PENSION PLAN
CONTRIBUTORY RETIREMENT PLAN
2008 Restatement
SILGAN PLASTICS SUPPLEMENTAL
SAVINGS AND PENSION PLAN
CONTRIBUTORY RETIREMENT PLAN
ARTICLE I
ESTABLISHMENT AND PURPOSE
1.1 History and Structure. The Silgan Plastics Supplemental Savings and Pension Plan was comprised of two components: the Contributory Retirement Plan and the Supplemental Pension Plan. The Contributory Retirement Plan was established in April, 1995. The Plan was amended from time to time, most recently in the form of a 2000 Restatement.
The account balances in the plan were frozen as of December 31, 2004, except for adjustments for earning and losses, because of ss.409A of the Internal Revenue Code enacted by the American Jobs Creation Act of 2004. Contributions after 2004 were credited to separate accounts designed to comply with ss.409A. This 2008 Restatement governs payment of amounts credited to such separate accounts.
1.2 Purpose. This Contributory Retirement Plan is intended to provide benefits to employees whose participation in the qualified Silgan Plastics Corporation Compensation Investment Plan (the "CIP Plan") is limited because of certain discrimination rules and limitations imposed by the Internal Revenue Code on qualified plans.
1.3 Type of Plan. For federal income tax purposes, the 2005 Silgan Plastics Supplemental Savings and Pension Plan, including this Contributory Retirement Plan component, is intended to be a nonqualified unfunded deferred compensation plan. For purposes of the Employee Retirement Income Security Act of 1974 ("ERISA") the Plan is intended to be a plan described in Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA providing benefits to a select group of management or highly compensated employees.
1.4 Eligible Participants. This Contributory Retirement Plan provides benefits to those individuals who are actively employed by Silgan Plastics Corporation and whose participation in the CIP Plan is limited because the Employee is a participant in the Silgan Plastics Corporation Management Incentive Plan.
1.5 Effect of Restatement. This 2008 Restatement is effective January 1, 2008, except as otherwise explicitly provided in this document.
The Contributory Retirement Plan as in effect on October 3, 2004, without regard to this amendment and restatement, is referred to herein as the Prior Plan. Each Participant's Accounts as of December 31, 2004, without regard to any credits for contributions or transfers as described in Sections 4.1 and 4.2 thereafter, but as adjusted for earnings or losses in accordance with Section 4.8 from time to time, are referred to as the Grandfathered Accounts. Payment of benefits credited to Grandfathered Accounts shall be governed by the Prior Plan.
Contributions or transfers as described in Sections 4.1 and 4.2 for periods on and after January 1, 2005, as adjusted for earnings or losses in accordance with Section 4.8, are credited to separate accounts. Payment of amounts during the period after 2004 and before 2008 that were credited to such non-grandfathered accounts were administered in accordance with a good faith interpretation of ss.409A, as documented in part in interim plan documents, plan summaries and administration forms.
On and after January 1, 2008, payment of amounts credited to such non-grandfathered accounts shall be governed by this 2008 Restatement, as amended from time to time.
ARTICLE II
DEFINITIONS
2.1 (a) Unless otherwise expressly defined by the terms or the context of this Contributory Retirement Plan, the terms used in this Contributory Retirement Plan shall have the same meanings as those terms in the CIP Plan.
(b) "Accounting Date" is defined in Section 4.8.
(c) "Benefit Amount" shall mean the amount payable to a Participant pursuant to this Contributory Retirement Plan, which is the amount credited to the account of a Participant from time to time in accordance with Article IV.
(d) "Contributory Retirement Trust" shall mean the Contributory Retirement Trust, which is a component of the Silgan Plastics Supplemental Savings and Pension Trust, a Rabbi Trust that is disregarded for purposes of ERISA and is not treated as a separate taxpayer entity for federal income tax purposes.
(e) "Covered Compensation" shall mean Compensation of the Participant as defined in the CIP Plan paid by an Employer or an Affiliate, but without regard to the Section 401(a)(17) limit.
(f) "Eligible Employee" shall mean an Employee first hired by the Employer prior to January 1, 2008 who is actively employed by Silgan Plastics Corporation and whose participation in the CIP Plan is limited because the Employee is a participant in the Silgan Plastics Corporation Management Incentive Plan.
(g) "Employer" shall mean Silgan Plastics Corporation and any successor thereto or business that assumes the obligations of such corporation or business.
(h) "Fund" or "Funds" means the investments that determine the gain or loss allocable to each Account described in Section 4.4.
(i) "Grandfathered Account" shall mean the Account of a Participant as of December 31, 2004, without regard to any credits for contributions or transfers as described in Sections 4.1 and 4.2 thereafter, but as adjusted for earnings or losses in accordance with Section 4.8 from time to time.
(j) "Specified Employee" shall mean a key employee (as defined in
section Code 416(i) without regard to paragraph (5) thereof) of the Employer or
entity or organization that would be considered a single employer with the
Employer pursuant to Code ss.ss.414(b) of 414(c), any stock of which is publicly
traded on an established securities market or otherwise. A Participant is a key
employee if the Participant meets the requirements of Code ss.416(i)(1)(A)(i),
(ii) or (iii) (applied in accordance with the regulations thereunder and
disregarding Code ss.416(i)(5)) at any time during the 12 month period ending
each December 31. If a Participant is a key employee at any time during the
12-month period ending on such December 31, the Participant is treated as a
Specified Employee for the 12-month period beginning on the following April 1.
Whether any stock is publicly traded on an established securities market or
otherwise must be determined as of the date of the Participant's Termination of
Employment.
(k) "Termination of Employment" shall mean termination of employment from the Employer and its Affiliates (generally 50% common control with the Employer), as defined in IRS regulations under Section 409A of the Code (generally, a decrease in the performance of services to no more than 20% of the average for the preceding 36-month period, and disregarding leave of absences up to six months where there is a reasonable expectation the Employee will return).
ARTICLE III
PARTICIPATION
An Employee who is or was an Eligible Employee shall be a Participant in this Contributory Retirement Plan for each calendar year after the effective date of the Plan during which such Employee became an Eligible Employee and each subsequent calendar year.
ARTICLE IV
RETIREMENT SAVINGS BENEFITS
4.1 Employee Contributions. Each Participant may elect to contribute to this Contributory Retirement Plan for a calendar year through payroll withholding an amount (expressed in whole percentages of Covered Compensation) up to 10% of Covered Compensation.
The election must be delivered to the Plan Administrator in writing before
the beginning of the calendar year during which the services for which such
Covered Compensation is paid are performed. The election for each calendar year
shall be irrevocable for the calendar year as of the beginning of such year and
shall apply to all Covered Compensation for services rendered in such year;
except that a Participant may cancel a deferral election because of a hardship
distribution from a cash or deferred profit sharing plan that is qualified under
Section 401(k) of the Internal Revenue Code. If an election is canceled because
of a hardship distribution, any later deferral election shall be subject to the
provisions governing initial deferral elections.
If an individual becomes an Eligible Employee on a date other than the first day of a calendar year and such individual has not at any time been eligible to participate in any other elective account balance nonqualified deferred compensation arrangement (determined pursuant
to Code ss.409A) of the Employer or any other entity or organization with which the Employer would be considered to be a single employer pursuant to Code ss.ss.414(b) or 414(c), the election may be completed within 30 days of the Eligible Employee's initial eligibility date. In no event shall a Participant be permitted to defer Covered Compensation with respect to services performed before the date on which the election is signed by the Participant and accepted by the Plan Administrator.
An election made pursuant to this Section must be in writing and in a form acceptable to the Plan Administrator. The Plan Administrator, in its discretion, may prescribe appropriate election rules and procedures; provided that elections for a calendar year must be made not later than the last day of the preceding calendar year, except as permitted by IRS regulations under Section 409A of the Internal Revenue Code. At the time of the deferral election, each employee must also select the distribution method in accordance with Article V.
4.2 Company Matching Credits. The Employer shall credit a matching amount for each Participant under this Contributory Retirement Plan equal to 50% the Participant's Covered Compensation contributed by the Participant through payroll withholding in accordance with Section 4.1.
In addition to such matching contributions, the Employer shall credit contributions made pursuant to the Supplemental Pension Plan for Participants entitled to a contribution in accordance with the terms of such Plan.
4.3 Transfer of Funds. The Employer shall transfer the Employee Contributions made in accordance with Section 4.1 in cash to the Contributory Retirement Trust as soon as administratively feasible after the amount is withheld from payroll, but no less frequently than quarterly; and the Employer shall transfer the Company Matching Credits made in accordance with Section 4.2 on behalf of each Participant in cash to the Contributory Retirement Trust as soon as administratively feasible, but no less frequently than annually.
4.4 Participant's Accounts. A separate "Grandfathered Account", a separate "Salary Reduction Account" and a separate "Company Account" shall be established and maintained for each Participant (collectively, the "Accounts"). The Grandfathered Account will reflect the Benefit Amount as determined under the Prior Plan, with investment earnings credited thereon. After December 31, 2004, the Plan Administrator shall credit the dollar amount of the salary reduction Employee Contribution of each Participant for each calendar year to the Participant's Salary Reduction Account; and the amount of Matching Contributions and contributions pursuant to the Supplemental Pension Plan for each Participant for each calendar year to the Participant's Company Account.
4.5 Directed Investments. Each Participant shall be entitled to direct the manner in which the amount credited to his or her Accounts is invested among the Funds that are available for Participant directed investments, which Funds shall be determined by the Plan Administrator in its sole discretion from time to time. The Plan Administrator may designate different Funds for different Participants or classes of Participants. The Plan Administrator reserves the right to change any investment options that may be established pursuant to this Section, including the right to eliminate particular Funds.
Such investments shall remain the property of the Employer until paid to the Participant pursuant to the provisions of this Plan or transferred to a trust as described in Article VI. The performance of such investments shall determine the amount payable to each Participant under this Plan from time to time.
Each Participant shall direct the investment of all amounts credited to each of his or her Deferral Accounts in any one or a combination of such Funds. A Participant may direct the investment of a portion of the balance credited to the Accounts in one Fund and the remaining portion in another Fund in accordance with procedures established by the Plan Administrator.
An investment direction shall specify the particular Fund or Funds in which new contributions credited to the Accounts of a Participant shall be invested. A Participant also may change his or her investment directions for existing Funds in accordance with procedures established by the Plan Administrator.
Investment directions by a Participant shall cover the full amount credited to his Accounts. The Employer shall have no responsibility for the investment of amounts credited to the Accounts. Expenses directly allocable to execution of directed investment transactions and administration with respect to the Accounts may be charged to such account.
4.6 Investment Direction Procedures. The Plan Administrator in its sole discretion may establish conditions, rules and procedures for directing investments by Participants, including, but not limited to, limits on the time and frequency of changing investment directions. The Plan Administrator in its sole discretion also may establish "black-out" periods, when specified changes are not permitted, to facilitate changes in the available Funds or the recordkeeping system. Such conditions, rules and procedures shall be disseminated in a manner reasonably determined to be available to all affected Participants in a reasonable time before the effective date of such condition, rule or procedure.
4.7 Vesting. The amount credited from time to time to the Salary Reduction Account of a Participant shall be fully vested and nonforfeitable. The amount credited from time to time to the Company Account of a Participant shall be vested at the same rate as "Employer Matching Contributions" are vested in the CIP Plan.
Payment to a Participant of the vested portion of his or her Benefit Amount shall constitute payment in full of the entire benefit or amount due the Participant under this Contributory Retirement Plan.
4.8 Adjustment to Accounts. The amount allocated to the Accounts of Participants shall be adjusted no less frequently than annually by the Plan Administrator to reflect earnings, losses, distributions, investment transfers and any other transactions attributable to the investment in the Contributory Retirement Trust of the amounts allocated to the Accounts of each Participant. The Plan Administrator shall establish such accounting and recordkeeping rules and procedures as are reasonable in the circumstances (such as the nature of the Trust investments) as it in its discretion shall determine; provided that such rules and procedures shall be applied uniformly to Participants in similar circumstances. A date as of which the Accounts of Participants are so adjusted is referred to in this Plan as an "Accounting Date."
The amount credited to the Accounts of a Participant from time to time as of the most recent Accounting Date shall constitute the Benefit Amount of the Participant at such time.
ARTICLE V
PAYMENT OF BENEFITS
5.1 Time and Form of Payment. The Benefit Amount of a Participant normally shall become payable on the Termination of Employment of the Participant in the form of a lump sum distribution.
Notwithstanding anything to the contrary in this Plan, no portion of the Benefit Amount may be paid to a Specified Employee until six months after Termination of Employment of the Participant, or, if earlier, the date of death of the Participant.
A Participant may elect to defer receipt of a lump sum payment until the sixth or any later January after his of her Termination of Employment that occurs before the Participant attains sixty-five years of age.
A Participant may elect to receive deferred installment payments over a period of up to ten years beginning in the sixth January or any later January after his of her Termination of Employment. The installment payment period can never extend more than fifteen years following Termination of Employment. For example, the installment payout period of a Participant who elected to defer the commencement of installment payments for ten years could not exceed five years. The amount of each installment payment shall be determined under the declining balance accounting method. For example, a five year installment payout would be paid as follows: 1/5 of the Installment Amount in the first year; 1/4 of the remaining Installment Amount in the second year; 1/3 of the remaining Installment Amount in the third year; 1/2 of the remaining Installment Amount in the fourth year; and the balance of the remaining Installment Amount in the fifth year.
Each Participant's Account (other than the Grandfathered Account) shall be bifurcated into separate halves for purposes of such deferral elections. A Participant may elect installment payments with respect to each half of the Participant's Account independently of the election, if any, with respect to the other half.
An election to defer the payment of a lump sum or to take deferred installment payments shall be made in writing, in a form prescribed by the Plan Administrator, not later than twelve months before payment is otherwise scheduled to commence in accordance with this Section. Any such election may be revoked until twelve months before a payment is to commence. In addition, any election or revocation will have no effect until twelve months after the date such election or revocation is made. For the purposes of subsequent changes in the time and form of payment under Section 409A of the Code, the right to the series of installment payments shall be treated as the right to a single payment.
5.2 Actual Date of Payment. An amount payable on a date specified in
Section 5.1 shall be paid as soon as administratively feasible after such date;
but no later than the later of
(a) the end of the calendar year in which the specified date occurs; or (b) the 15th day of the third calendar month following such specified date and the Participant (or Beneficiary) is not permitted to designate the taxable year of the payment. The payment date may be postponed further if calculation of the amount of the payment is not administratively practicable due to events beyond the control of the Participant (or Beneficiary), and the payment is made in the first calendar year in which the calculation of the amount of the payment is administratively practicable.
The Benefit Amount due the Participant shall be the balance credited to the Account of the Participant on the actual date of payment.
5.3 Death Benefits. Each Participant entitled to a Benefit Amount under this Contributory Retirement Plan shall be entitled to a death benefit equal to the entire Benefit Amount of the Participant, whether or not vested. Such benefit shall be payable to the Beneficiary of the Participant in a single lump sum as soon as administratively feasible after the death of the Participant.
Each Participant may designate a Beneficiary or Beneficiaries (contingently, consecutively, or successively) of a death benefit and, from time to time, may change his or her designated Beneficiary. A Beneficiary may be a trust. A beneficiary designation shall be made in writing in a form prescribed by the Plan Administrator and delivered to the Plan Administrator while the Participant is alive. If there is no designated Beneficiary surviving at the death of a Participant, payment of any death benefit of the Participant shall be made to the persons and in the proportions which any death benefit under the CIP Plan is or would be payable.
5.4 Grandfathered Account. Payment of amounts credited to the Grandfathered Account of a Participant shall be made under the terms of the Prior Plan, attached hereto as an appendix.
ARTICLE VI
SOURCES OF PAYMENTS
Benefits payable under this Contributory Retirement Plan shall be paid by the Employer out of its general assets (except as provided below with respect to the Contributory Retirement Trust). Obligations to pay benefits due Participants under this Contributory Retirement Plan shall be the primary obligation of the Employer. A Participant shall not have any rights with respect to payment of benefits from the Employer under this Contributory Retirement Plan other than the unsecured right to receive payments from the Employer. The Benefit Amount, as described in Section 4.4, defines the amount payable by the Employer to a Participant under this Contributory Retirement Plan.
Except for the obligation to contribute amounts to the Contributory Retirement Trust, an Employer shall not be obligated to set aside, earmark or escrow any funds or other assets to satisfy its obligation under this Contributory Retirement Plan. Any benefit payable in accordance with the terms of this Contributory Retirement Plan shall not be represented by a
note or any evidence of indebtedness other than the promises contained in this Contributory Retirement Plan and the right to receive payments from the Contributory Retirement Trust.
The Contributory Retirement Trust, and any other trust established by an Employer to assist the Employer in meeting its obligations under this Plan, shall conform in substance to the terms of the model trust described in Revenue Procedure 92-64 with respect to the claim of Participants to assets of the Employer and such trust. Payment from the Contributory Retirement Trust of amounts due under the terms of this Contributory Retirement Plan shall satisfy the obligation of the Employer to make such payment out of its general assets. In no event shall any Participant be entitled to receive payment of an amount from the general assets of an Employer that the Participant received from the Contributory Retirement Trust.
ARTICLE VII
PLAN ADMINISTRATOR
7.1 Plan Administrator. This Contributory Retirement Plan shall be administered by a person or committee appointed by the Employer as Plan Administrator. The Plan Administrator so appointed shall have all of the authority, rights and duties to administer this Contributory Retirement Plan as is assigned to the Plan Administrator of the CIP Plan. The Plan Administrator may adopt such rules as it may deem necessary, desirable and appropriate to administer this Contributory Retirement Plan. The decisions of the Plan Administrator, including but not limited to interpretations and determinations of amounts due under this Contributory Retirement Plan, shall be final and binding on all parties.
7.2 Standard of Conduct. The Plan Administrator shall perform its duties as the Plan Administrator and in its sole discretion shall determine what is appropriate in light of the reason and purpose for which this Contributory Retirement Plan is established and maintained. The interpretation of all plan provisions and the determination of whether a Participant or Beneficiary is entitled to any benefit pursuant to the terms of this Contributory Retirement Plan, shall be exercised by the Plan Administrator.
ARTICLE VIII
NONALIENATION OF BENEFITS
Except as may be required by the federal income tax withholding provisions of the Code or by the laws of any State, the interests of Participants and their Beneficiaries under this Contributory Retirement Plan are not subject to the claims of their creditors and may not be voluntarily or involuntarily sold, transferred, alienated, assigned, pledged, anticipated, or encumbered. Any attempt by a Participant or his Beneficiary to sell, transfer, alienate, assign, pledge, anticipate, encumber, charge or otherwise dispose of any right to benefits payable hereunder shall be void. The Employer may cancel and refuse to pay any portion of a benefit which is sold, transferred, alienated, assigned, pledged, anticipated or encumbered.
Distribution pursuant to a domestic relations order of all or any portion of the Participant's vested Benefit Amount may be paid to an Alternate Payee (as defined in Section 414(p) of the Code) who is a former spouse in an amount specified in such domestic relations
order in a lump-sum cash payment as soon as administratively feasible after the Plan Administrator determines that the order is a domestic relations order (as defined in Section 414(p)(1)(B) of the Code).
ARTICLE IX
AMENDMENT AND TERMINATION
Silgan Plastics Corporation reserves the right to amend, alter or discontinue this Contributory Retirement Plan at any time; provided that, no such amendment may reduce the entitlement of a Participant to payment of the Benefit Amount of the Participant determined as of the time of such amendment. Such action may be taken by the Silgan Plastics Corporation Employee Benefits Committee, or any other officer of Silgan Plastics Corporation who has been duly authorized by its Board of Directors to perform acts of such kind.
ARTICLE X
GENERAL PROVISIONS
10.1 Plan Not a Contract of Employment. This Contributory Retirement Plan does not constitute a contract of employment, and participation in this Contributory Retirement Plan will not give any Participant the right to be retained in the employment of any of the Employer. The right of a Participant to payment of a Benefit Amount pursuant to this Contributory Retirement Plan is intended as a supplemental component of the overall employment agreement between the Employer and the Participant.
10.2 Successors. The provisions of this Contributory Retirement Plan shall be binding upon the Employer and its successors and assigns and upon every Participant and his heirs, beneficiaries, estates and legal representatives.
10.3 Official Actions. Any action required to be taken by the Board of Directors of Silgan Plastics Corporation pursuant to this Contributory Retirement Plan may be performed by any person or persons, including a committee, to which the Board of Directors of Silgan Plastics Corporation delegates the authority to take actions of that kind. Whenever under the terms of this Contributory Retirement Plan an entity corporation is permitted or required to take some action. Such action may be taken by an officer of the corporation who has been duly authorized by the Board of Directors of such corporation to take actions of that kind.
10.4 Controlling State Law. To the extent not superseded by the laws of the United States, the laws of the State of Missouri shall be controlling in all matters relating to this Contributory Retirement Plan.
10.5 Severability. In case any provision of this Contributory Retirement Plan shall be held illegal or invalid for any reason, such illegality or invalidity shall not affect the remaining provisions of this Contributory Retirement Plan, and this Contributory Retirement Plan shall be construed and enforced as if such illegal and invalid provisions had never been set forth.
10.6 Withholding. The Employer shall withhold from amounts due under this Contributory Retirement Plan, the amount necessary to enable the Employer to remit to the appropriate government entity or entities on behalf of the Participant as may be required by the federal income tax withholding provisions of the Code, by an applicable state's income tax, or by an applicable city, county or municipality's earnings or income tax act. The Employer shall withhold from the payroll of, or collect from, a Participant the amount necessary to remit on behalf of the Participant any FICA taxes which may be required with respect to amounts accrued by a Participant hereunder, as determined by the Employer.
10.7 Rules of Construction. The terms and provisions of this Plan shall be construed according to the principles, and in the priority, as follows: first, in accordance with the meaning under, and which will bring the Plan into conformity with, section 409A of the Code; and secondly, in accordance with the laws of the State of Missouri. The Plan shall be deemed to contain the provisions necessary to comply with such laws. If any provision of this Plan shall be held illegal or invalid, the remaining provisions of this Plan shall be construed as if such provision had never been included. Wherever applicable, the masculine pronoun as used herein shall include the feminine, and the singular shall include the plural. The term profit shall mean profit or loss, as the case may be, and the term credit shall mean credit or charge, as the case may be.
IN WITNESS WHEREOF, the undersigned hereby certifies that Silgan Plastics Corporation has duly adopted this Restatement.
SILGAN PLASTICS CORPORATION
By: /s/ Amanda Poitra ------------------------------------- Title: VP - HR . ------------------------------------- Date: 8/25/08 . ------------------------------------- |
Exhibit 12
SILGAN HOLDINGS INC.
COMPUTATION OF RATIO OF EARNINGS TO FIXED CHARGES
(Unaudited)
The following table sets forth Silgan Holdings Inc.'s computation of its ratio of earnings to fixed charges for the three months ended March 31:
2009 2008 ---- ---- (Dollars in thousands) Earnings before fixed charges: Income before income taxes $43,151 $33,522 Interest and other debt expense 10,456 16,313 Interest portion of rental expense 97 352 ------- ------- Earnings before fixed charges $53,704 $50,187 ======= ======= Fixed charges: Interest and other debt expense $10,456 $16,313 Interest portion of rental expense 97 352 Capitalized interest 221 688 ------- ------- Total fixed charges $10,774 $17,353 ======= ======= Ratio of earnings to fixed charges 4.98 2.89 |
Exhibit 31.1
CERTIFICATION BY THE CHIEF EXECUTIVE OFFICER
PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT
I, Anthony J. Allott, certify that:
1. I have reviewed this Quarterly Report on Form 10-Q for the period ended March 31, 2009 of Silgan Holdings Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b. Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c. Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d. Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
a. All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
Date: May 4, 2009 /s/ Anthony J. Allott ----------------------- Anthony J. Allott President and Chief Executive Officer |
Exhibit 31.2
CERTIFICATION BY THE CHIEF FINANCIAL OFFICER
PURSUANT TO SECTION 302 OF THE SARBANES-OXLEY ACT
I, Robert B. Lewis, certify that:
1. I have reviewed this Quarterly Report on Form 10-Q for the period ended March 31, 2009 of Silgan Holdings Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. The registrant's other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
a. Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared;
b. Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles;
c. Evaluated the effectiveness of the registrant's disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
d. Disclosed in this report any change in the registrant's internal control over financial reporting that occurred during the registrant's most recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrant's internal control over financial reporting; and
5. The registrant's other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant's auditors and the audit committee of the registrant's board of directors (or persons performing the equivalent functions):
a. All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrant's ability to record, process, summarize and report financial information; and
b. Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant's internal control over financial reporting.
Date: May 4, 2009 /s/ Robert B. Lewis ---------------------------- Robert B. Lewis Executive Vice President and Chief Financial Officer |
Exhibit 32.1
CERTIFICATION BY THE CHIEF EXECUTIVE OFFICER
PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT
In connection with the Quarterly Report of Silgan Holdings Inc. (the "Company")
on Form 10-Q for the period ended March 31, 2009 as filed with the Securities
and Exchange Commission on the date hereof (the "Quarterly Report"), I, Anthony
J. Allott, Chief Executive Officer of the Company, certify, pursuant to 18
U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley
Act of 2002, that, to my knowledge:
(1) The Quarterly Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Quarterly Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
/s/ Anthony J. Allott ----------------------- Anthony J. Allott President and Chief Executive Officer May 4, 2009 |
A signed original of this written statement required by Section 906 has been provided to Silgan Holdings Inc. and will be retained by Silgan Holdings Inc. and furnished to the Securities and Exchange Commission or its staff upon request.
Exhibit 32.2
CERTIFICATION BY THE CHIEF FINANCIAL OFFICER
PURSUANT TO SECTION 906 OF THE SARBANES-OXLEY ACT
In connection with the Quarterly Report of Silgan Holdings Inc. (the "Company")
on Form 10-Q for the period ended March 31, 2009 as filed with the Securities
and Exchange Commission on the date hereof (the "Quarterly Report"), I, Robert
B. Lewis, Chief Financial Officer of the Company, certify, pursuant to 18 U.S.C.
Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of
2002, that, to my knowledge:
(1) The Quarterly Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and
(2) The information contained in the Quarterly Report fairly presents, in all material respects, the financial condition and results of operations of the Company.
/s/ Robert B. Lewis ---------------------------- Robert B. Lewis Executive Vice President and Chief Financial Officer May 4, 2009 |
A signed original of this written statement required by Section 906 has been provided to Silgan Holdings Inc. and will be retained by Silgan Holdings Inc. and furnished to the Securities and Exchange Commission or its staff upon request.