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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 28, 2022
SILGAN HOLDINGS INC.
(Exact name of Registrant as specified in its charter)
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| Delaware | 000-22117 | 06-1269834 |
| (State or other jurisdiction | (Commission | (I.R.S. Employer |
| of incorporation) | file number) | 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 or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Registrant under any of the following provisions:
☐ Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
☐ Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
☐ Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
☐ Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
Securities registered pursuant to Section 12(b) of the Act: | | | | | | | | |
Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
Common Stock, par value $0.01 per share | SLGN | New York Stock Exchange |
Indicate by check mark whether the Registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR 230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR 240.12b-2).
Emerging growth company ☐
If an emerging growth company, indicate by check mark if the Registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Section 1—Registrant’s Business and Operations
Item 1.01 Entry into a Material Definitive Agreement.
On November 28, 2022, Silgan Holdings Inc. (the “Company”), R. Philip Silver and D. Greg Horrigan entered into a Second Amended and Restated Stockholders Agreement (the “New Stockholders Agreement”). The New Stockholders Agreement amends and restates the existing Amended and Restated Stockholders Agreement, dated as of November 6, 2001, by and among the Company and Messrs. Silver and Horrigan, which replaced in its entirety that certain stockholders agreement dated as of February 14, 1997 by and among Messrs. Silver and Horrigan and the other parties thereto.
The New Stockholders Agreement amends the existing Amended and Restated Stockholders Agreement by removing the contractual right of the Group (as defined in the New Stockholders Agreement and generally including Messrs. Silver and Horrigan and their affiliates, family members, trusts and estates) to nominate for election all Directors of the Company so long as the Group holds an aggregate of one-half of the number of shares of common stock of the Company held by the Group in the aggregate on February 14, 1997, or 28,612,360 shares of the Company’s common stock (as adjusted for stock splits effected by the Company since such date). As of November 28, 2022, the Group held more than such number of shares of the Company’s common stock. Under the New Stockholders Agreement, the Group retains its existing contractual right to nominate one nominee for election as a Director of the Company until such time as the Group beneficially owns less than five percent (5%) of the Company’s outstanding common stock, which nominee must be either Mr. Silver or Mr. Horrigan.
The foregoing description of the New Stockholders Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the New Stockholders Agreement, which is attached as Exhibit 10.1 hereto and incorporated herein by reference.
Section 8—Other Events
Item 8.01 Other Events.
On November 28, 2022, as a result of the New Stockholders Agreement which removed the contractual right of the Group to nominate for election all directors of the Company as described under Item 1.01 above, the Board of Directors of the Company established a Nominating Committee of the Board of Directors, approved and adopted a Charter of the Nominating Committee of the Board of Directors and appointed all of the independent Directors (as defined and required by the New York Stock Exchange) of the Board of Directors of the Company as members of the Nominating Committee of the Board of Directors. Among other responsibilities, the Nominating Committee's primary responsibility will be to assist the Board of Directors of the Company in identifying qualified candidates to become nominees for the Board of Directors of the Company.
On November 28, 2022, the Company issued a press release announcing the corporate governance updates described in Item 1.01 above and this Item 8.01. A copy of the press release is filed herewith and attached hereto as Exhibit 99.1.
Section 9—Financial Statements and Exhibits
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
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| Exhibit No. | | Description |
| 10.1 | | |
| | | |
| 99.1 | | |
| | | |
| 104 | | Cover Page Interactive File (the cover page tags are embedded within the Inline XBRL document). |
|
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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| SILGAN HOLDINGS INC. |
| | |
| | |
| By: | /s/ Frank W. Hogan, III |
| | Frank W. Hogan, III |
| | Senior Vice President, General |
| | Counsel and Secretary |
Date: November 28, 2022
SECOND AMENDED AND RESTATED STOCKHOLDERS AGREEMENT
This Second Amended and Restated Stockholders Agreement (this "Agreement") is made and entered into as of the 28th day of November, 2022 by and among R. PHILIP SILVER ("Silver"), D. GREG HORRIGAN ("Horrigan") and SILGAN HOLDINGS INC., a Delaware corporation (the "Company").
WHEREAS, Silver, Horrigan and the Company are parties to that certain Amended and Restated Stockholders Agreement dated as of November 6, 2001 (the "Stockholders Agreement"), which replaced in its entirety that certain stockholders agreement dated as of February 14, 1997 by and among Silver, Horrigan and the other parties thereto; and
WHEREAS, the parties to the Stockholders Agreement, believing it to be in their respective best interests, desire to amend and restate the Stockholders Agreement by entering into this Agreement and to replace the Stockholders Agreement in its entirety with this Agreement.
NOW, THEREFORE, the parties hereto, intending to be legally bound hereby, agree as follows.
ARTICLE I
DEFINITIONS
As used in this Agreement, the following terms shall have the meanings set forth below:
"Affiliate" shall have the meaning ascribed to such term in Rule 12b-2 of the General Rules and Regulations promulgated under the Securities Exchange Act of 1934 as in effect on the date of this Agreement.
"Common Stock" shall mean shares of the Company's common stock, par value $.01 per share.
"Disability" shall mean the inability of either Silver or Horrigan to manage his own affairs within the meaning of Section 45a-650(c) under the Connecticut General Statutes (as the same may be amended or replaced by any successor statute from time to time).
"Estate" shall mean any and all assets left by a decedent and any executor, administrator or legal representative charged with the administration of such assets.
"Family Transferees" shall mean the spouse, children or grandchildren of, or any trust for the benefit of the spouse, children or grandchildren of, Silver or Horrigan.
"Group" shall mean, collectively, Silver and Horrigan and their respective Affiliates and related Family Transferees and Estates (Silver and his Affiliates, Family Transferees and Estate deemed to be collectively one member of the Group and Horrigan and his Affiliates, Family Transferees and Estate deemed to be collectively one member of the Group).
ARTICLE II
DIRECTOR NOMINATION RIGHTS
2.1 Nomination of Directors.
(a) Until such time that the Group beneficially owns less than five percent (5%) of the outstanding Common Stock (determined in accordance with Rule 13d-3 of the General Rules and Regulations promulgated under the Securities Exchange Act of 1934 as in effect on the date of this Agreement), the Group shall have the right to nominate for election a total of one (1) individual as a member of the Board of Directors of the Company (or, if the Board of Directors
of the Company is classified, a total of one (1) individual as a member of one (1) class of Directors of the Board of Directors of the Company), and upon such nomination by the Group such nominee shall stand for election to the Company's Board of Directors in accordance with the Company's certificate of incorporation; provided, however, that such nominee shall be Silver or Horrigan.
(b) In the event that (i) either Silver or Horrigan (not including any of their Affiliates, Family Transferees or Estates) notifies the Board of Directors of the Company that the Group cannot agree on a nominee for election to the Company's Board of Directors pursuant to Section 2.1(a) above or (ii) at least 45 days prior to any annual meeting of stockholders of the Company, the Group fails to nominate for election at such meeting a nominee pursuant to Section 2.1(a) above to stand for election to the Company's Board of Directors at such meeting, then the Board of Directors shall have the right in lieu of the Group to nominate for election to the Company's Board of Directors in accordance with the Company's certificate of incorporation such nominee that Silver and Horrigan could not agree on as a nominee as contemplated in clause (i) of this paragraph (b) or that the Group so failed to nominate as contemplated in clause (ii) of this paragraph (b).
ARTICLE III
MISCELLANEOUS PROVISIONS
3.1 Effectiveness; Term. This Agreement shall continue in effect until either the death or Disability of both of Silver and Horrigan, at which time this Agreement shall terminate and be of no further force or effect.
3.2 Due Authorization; Binding Agreement. Each of the parties to this Agreement represents that this Agreement has been duly authorized, executed and delivered by such party and constitutes the legal, valid and binding obligation of such party enforceable against it in accordance with its terms. This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective Estates, heirs, executors, legal representatives, successors and permitted assigns.
3.3 Equitable Relief for Breach of Agreement. Without limiting the remedies available to any of the parties hereto, each of the parties hereto stipulates and agrees that damages at law will be an insufficient remedy in the event that any party violates the terms of this Agreement, and each of the parties hereto further agrees that each of the other parties hereto may apply for and have injunctive or other equitable relief in any court of competent jurisdiction to restrain the breach or threatened breach of, or otherwise specifically to enforce, the terms of this Agreement.
3.4 Actions by the Company. The Company hereby agrees to take, or cause to be taken, all reasonable actions and to do, or cause to be done, all reasonable things necessary to give effect to the rights of the Group hereunder.
3.5 Entire Agreement; Amendments. This Agreement contains the entire understanding of the parties hereto with respect to the subject matter hereof and supersedes and replaces in its entirety the Stockholders Agreement. None of the parties to the Stockholders Agreement shall have any further rights or obligations thereunder. This Agreement may not be amended, modified or revoked in whole or in part and no provision hereof may be waived, except in all such cases by a written instrument executed by the parties hereto.
3.6 Waiver. No waivers of any breach or other term or condition of this Agreement extended by any party hereto to any other party shall be construed as a waiver of any rights or remedies with respect to any subsequent breach or with respect to any other term or condition.
3.7 Headings. The headings and subheadings in this Agreement are inserted for convenience of reference only and are not to be considered in construction of the provisions hereof.
3.8 Unenforceable Provisions. The provisions of this Agreement shall be applied and interpreted in a manner consistent with each other so as to carry out the purposes and intent of the parties hereto, but if for any reason any provision hereof is determined to be unenforceable or invalid, such provision or such part thereof as may be unenforceable or invalid shall be deemed automatically amended to the extent necessary to make such provision or such part thereof valid and enforceable, and the remaining provisions shall remain in full force and effect.
3.9 Counterparts. This Agreement may be executed in any number of counterparts, each of which when so executed shall be deemed an original, but all of which, taken together, shall constitute one and the same agreement.
3.10 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any principles of conflicts of law; provided that any determination of Disability under this Agreement shall be governed by and construed in accordance with the laws of the State of Connecticut.
IN WITNESS WHEREOF, the parties hereto have duly executed and delivered this Agreement as of the date first written above.
SILGAN HOLDINGS INC.
By: /s/ Frank W. Hogan, III
Name: Frank W. Hogan, III
Title: Senior Vice President, General
Counsel and Secretary
/s/ R. Philip Silver
R. Philip Silver
/s/ D. Greg Horrigan
D. Greg Horrigan
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| | Exhibit 99.1 |
| |
| |
| News | |
| For Immediate Release | |
| 4 Landmark Square |
| Suite 400 |
| Stamford, CT 06901 |
| |
| Telephone: 203-975-7110 |
| Fax: 203-975-7902 |
| |
| Contact: |
| Robert B. Lewis |
| (203) 406-3160 |
SILGAN HOLDINGS ANNOUNCES
CORPORATE GOVERNANCE UPDATES
STAMFORD, CT, November 28, 2022 -- Silgan Holdings Inc. (NYSE:SLGN), a leading supplier of sustainable rigid packaging for the world’s essential consumer goods products, announced today that it entered into a new amended and restated stockholders agreement with its co-founders, D. Greg Horrigan and R. Philip Silver, which amends the existing stockholders agreement to remove the contractual right of the co-founders of the Company to nominate for election all Directors of the Company so long as they and their affiliates held a certain amount of shares of Common Stock of the Company. The co-founders of the Company and their affiliates still as of today hold more than such amount of shares of Common Stock of the Company. Under the new amended and restated stockholders agreement, the co-founders, so long as they and their affiliates own at least five percent of the Common Stock of the Company, retain the right to nominate one nominee for election as a Director of the Company, which nominee must be one of the co-founders.
As a result of the new amended and restated stockholders agreement which removed the contractual right of the co-founders of the Company to nominate for election all Directors of the Company, the Board of Directors of the Company established a Nominating Committee of the
SILGAN HOLDINGS
November 28, 2022
Page 2
Board of Directors which consists of all of the independent Directors of the Company. The primary responsibility of the new Nominating Committee of the Board of Directors of the Company will be to assist the Board of Directors in identifying qualified candidates as nominees for the Board of Directors of the Company.
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Silgan is a leading supplier of sustainable rigid packaging solutions for the world’s essential consumer goods products with annual net sales of approximately $5.7 billion in 2021. Silgan operates 112 manufacturing facilities in North and South America, Europe and Asia. The Company is a leading worldwide supplier of dispensing and specialty closures for food, beverage, health care, garden, home, personal care, fragrance and beauty products. The Company is also a leading supplier of metal containers in North America and Europe for food and general line products. In addition, the Company is a leading supplier of custom containers for shelf-stable food and personal care products in North America.
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