Silgan Holdings Inc 8-K, filed Oct 20, 2026
Silgan Holdings Inc (SLGN)
About this 8-K
Silgan Holdings Inc filed this 8-K on October 20, 2026, reporting on events of October 17, 2026.
Items reported
- Item 1.01: Entered into a material agreement
- Item 5.02: Director or officer change, or executive pay
- Item 9.01: Financial statements and exhibits
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
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Section 1 — Registrant’s Business and Operations
| Item 1.01 | Entry into a Material Definitive Agreement. |
On October 17, 2026 (the “Signing Date”), Silgan Holdings Inc., a Delaware corporation (“Silgan” or the “Company”), and Silgan Holdings LLC, a Delaware limited liability company and a wholly-owned subsidiary of the Company (“SH LLC”), entered into certain agreements relating to (i) the creation of a partnership between SH LLC and A-VL Holdco, LP, a Delaware limited partnership and an investment vehicle (the “A-VL Investor”) affiliated with funds managed by AIP, LLC, a Delaware limited liability company (“Sponsor”), (ii) the contribution by the Company of its Metal Containers and Closures Business (as defined below) to such partnership, and (iii) the proposed acquisition by such partnership of Trivium Packaging B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) under the laws of the Netherlands (“Trivium”).
Transaction Agreement
On the Signing Date, the Company, the A-VL Investor and Silgan Metal Packaging LLC, a Delaware limited liability company that is a newly formed subsidiary of SH LLC (“MetalCo”), entered into a Transaction Agreement in connection with the formation of a partnership between SH LLC and the A-VL Investor. The Transaction Agreement provides that, upon its terms and subject to certain conditions, at the closing (the “Closing”), (i) the Company, through one or more of its subsidiaries, will contribute its metal food and general line containers, metal vacuum closures, plastic vacuum closures, non-dispensing plastic dairy closures and aluminum roll-on closures for beer and non-alcoholic beverages businesses (collectively, the “Metal Containers and Closures Business”) to MetalCo or one or more subsidiaries of MetalCo (the “Business Contribution”) in exchange for 60% of MetalCo’s Class A voting units and the Silgan Distribution Amount (as defined below), (ii) the A-VL Investor will contribute $1.025 billion in cash to MetalCo (the “A-VL Contribution”) in exchange for 40% of MetalCo’s Class A voting units, (iii) MetalCo will distribute to SH LLC an aggregate amount equal to (a) $2.263 billion, minus (b) if applicable, the New Silgan Debt Amount (as defined below) (the “Silgan Distribution Amount”) and (iv) at the Company’s election, (a) the Company may incur up to an aggregate principal amount of $1.0 billion of new debt (which may be funded by a portion of the commitments under the Debt Financing (as defined below)) (such debt, the “New Silgan Debt” and such aggregate principal amount of the New Silgan Debt, the “New Silgan Debt Amount”) and (b) MetalCo will assume the New Silgan Debt in connection with the Business Contribution. The Business Contribution will be made on a cash-free, debt-free basis, subject to a customary closing net working capital adjustment and certain other adjustments as provided in the Transaction Agreement. The A-VL Investor will fund the A-VL Contribution at the Closing with equity proceeds committed to it by American Industrial Partners Capital Fund IX, L.P. (“Fund IX”), an investment fund managed by an affiliate of Sponsor, pursuant to a customary equity commitment letter entered into on the Signing Date.
The Closing is subject to the concurrent closing of the transactions contemplated by the Trivium Purchase Agreement (as defined below), Silgan effecting an internal reorganization for the Business Contribution in accordance with the terms of the Transaction Agreement and certain other customary closing conditions.
The Transaction Agreement contains customary representations, warranties and covenants for a transaction of its size and scope. The representations and warranties under the Transaction Agreement do not survive the Closing. Between the Signing Date and the Closing, subject to certain customary exceptions, Silgan has agreed to operate its Metal Containers and Closures Business in the ordinary course of business consistent with past practice and not take certain actions with respect to its Metal Containers and Closures Business without the prior written consent of MetalCo or, in some cases, without written notification to MetalCo following such action.
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The Transaction Agreement provides that: (i) Silgan will indemnify MetalCo and certain related parties for (a) breaches of Silgan’s post-Closing covenants, (b) liabilities related to Silgan’s retained business, (c) certain limited specified taxes and a certain other limited special indemnity item, and (d) certain costs and tax liabilities arising from Silgan’s pre-Closing reorganization actions, (ii) MetalCo will indemnify Silgan and certain related parties for (a) breaches of MetalCo’s post-Closing covenants and (b) liabilities related to the Metal Containers and Closures Business and (iii) the A-VL Investor will indemnify MetalCo and certain related parties for breaches of the A-VL Investor’s post-closing covenants.
The Transaction Agreement contains certain termination rights for the parties, including (without limitation) if (i) the Closing has not occurred by October 15, 2027 (which date is subject to automatic extension if the outside date under the Trivium Purchase Agreement is extended (as described below)) or (ii) either (a) the Put Option Agreement (as defined below) expires or is terminated without the Put Option (as defined below) being exercised or (b) the Trivium Purchase Agreement is terminated. Fund IX has delivered a limited guarantee in favor of the Company guaranteeing, subject to a cap, certain payment obligations of the A-VL Investor under the Transaction Agreement. Generally, the parties have agreed to share the costs and expenses in connection with the Transaction Agreement and the Trivium Purchase Agreement.
MetalCo expects to fund the Silgan Distribution under the Transaction Agreement through the borrowings described under the heading “MetalCo Debt Commitment Letter” below and the cash contribution from the A-VL Investor described herein.
The foregoing description of the Transaction Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Transaction Agreement, which is filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated by reference herein.
Put Option Agreement
On the Signing Date, MetalCo entered into a Put Option Agreement (the “Put Option Agreement”) with Trivium, Ardagh Group Holdings S.à r.l., a private limited liability company (société à responsabilité limitée) under the laws of Luxembourg (“Ardagh”), Element Holdings II L.P., an exempted limited partnership formed under the laws of the Cayman Islands (“Element” and, together with Ardagh, the “Sellers”) and Exal Holdings International Parent B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) under the laws of the Netherlands (“Blocker” and, together with Trivium and the Sellers, collectively, the “Beneficiaries”) and Element, solely in its capacity as representative of the Beneficiaries (the “Beneficiary Representative”), relating to the proposed acquisition by MetalCo of 100% of the outstanding shares of Trivium (the “Trivium Shares”).
Pursuant to the Put Option Agreement, the Beneficiary Representative, on behalf of the Sellers, has the right (the “Put Option”) to require MetalCo to purchase the Trivium Shares on the terms and subject to the conditions set forth in the form of share purchase agreement attached to the Put Option Agreement (the “Trivium Purchase Agreement”), which Put Option may be exercised only following completion of certain information and consultation processes required under applicable law, including with applicable works councils in France and the Netherlands (the “Consultation Processes”) and as required under the Dutch Merger Code (SER Fusiegedragsregels 2015) (the “Merger Code Process”). The Beneficiaries are obligated to engage with such works councils promptly after the Signing Date and to diligently pursue such Consultation Processes and the Merger Code Process.
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The Beneficiary Representative, on behalf of the Sellers, may exercise the Put Option within five business days after completion of the Consultation Processes and the Merger Code Process, subject to an outside date of nine months following the Signing Date. If the Put Option is exercised by delivery of a written notice from the Beneficiary Representative to MetalCo (the “Exercise Notice”), MetalCo and the Beneficiaries are obligated to enter into the Trivium Purchase Agreement within five business days thereafter and to consummate the transactions contemplated by the Trivium Purchase Agreement, subject to the conditions set forth therein. If the parties have not signed the Trivium Purchase Agreement within five business days from receipt of the Exercise Notice by MetalCo, the Trivium Purchase Agreement will automatically come into effect on such fifth business day as if it had been executed on such date, with no further action required by the parties thereto.
From the Signing Date until the earlier of the expiration of the Put Option and the execution or effectiveness of the Trivium Purchase Agreement, certain covenants of the Trivium Purchase Agreement will apply as if the Trivium Purchase Agreement were in effect, including (i) Trivium and Blocker agreeing to operate the Trivium businesses in the ordinary course of business consistent with past practice and to not take certain actions with respect to such businesses without the prior written consent of MetalCo, in each case subject to certain exceptions, and (ii) the parties’ obligations to use reasonable best efforts to do all things necessary, proper or advisable to consummate the transactions contemplated by the Trivium Purchase Agreement, including using reasonable best efforts to cause the waiting periods or other requirements under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), and all other applicable antitrust laws to terminate or expire prior to the outside date under the Trivium Purchase Agreement. In addition, from the Signing Date until the earlier of (a) the date the Trivium Purchase Agreement is executed or becomes effective and (b) the twelve-month anniversary of the Signing Date, the Beneficiaries and their affiliates will be prohibited from soliciting, discussing or agreeing to any competing proposal to acquire Trivium or providing information to other potential buyers.
Before the Put Option is exercised, the Beneficiaries may terminate the Put Option Agreement if the regulatory closing condition set forth in the Trivium Purchase Agreement or the condition requiring no order prohibiting the consummation of the transactions contemplated by the Trivium Purchase Agreement becomes incapable of being satisfied by the outside date under the Trivium Purchase Agreement (as described below). In the event that the Consultation Processes and the Merger Code Process are completed, but the Beneficiary Representative does not exercise the Put Option by the expiry of the option period, the Beneficiaries will be obligated to reimburse certain expenses of MetalCo, up to $40 million, in accordance with the Put Option Agreement.
The foregoing description of the Put Option Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Put Option Agreement, which is filed as Exhibit 10.2 to this Current Report on Form 8-K and incorporated by reference herein.
Trivium Purchase Agreement
Under the form of the Trivium Purchase Agreement attached to the Put Option Agreement, and subject to the terms and conditions set forth therein, MetalCo will purchase the Trivium Shares for a cash payment to the Sellers of approximately $327.5 million, subject to certain adjustments, plus the assumption of approximately $3.1 billion in Trivium debt obligations (as of the date hereof), which are scheduled to be repaid at the Closing. The Trivium Purchase Agreement contains a “locked box” mechanism fixing Trivium’s equity value as of December 31, 2025, with customary protections against value leakage before the Closing.
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The closing of transactions contemplated by the Trivium Purchase Agreement is subject to the concurrent closing of the transactions contemplated by the Transaction Agreement, obtaining approvals or clearances under applicable Antitrust Laws, including the HSR Act, and certain other customary closing conditions.
The Trivium Purchase Agreement contains customary representations, warranties and covenants for a transaction of this nature. Between the Signing Date and the closing of the transactions contemplated by the Trivium Purchase Agreement, subject to certain exceptions, Trivium and Blocker have agreed to operate the Trivium businesses in the ordinary course of business consistent with past practice and to not take certain actions with respect to such businesses without the prior written consent of MetalCo. In addition, the parties have agreed to use reasonable best efforts to do all things necessary, proper or advisable to consummate the transactions contemplated by the Trivium Purchase Agreement, including using reasonable best efforts to cause the waiting periods or other requirements under the HSR Act and all other applicable Antitrust Laws to terminate or expire prior to the outside date under the Trivium Purchase Agreement.
MetalCo will obtain representation and warranty insurance to cover losses resulting from breaches of the representations and warranties set forth in the Trivium Purchase Agreement.
The Trivium Purchase Agreement contains certain termination rights of the parties, including (without limitation) if (i) the Closing has not occurred by October 14, 2027, provided that such date shall automatically extend to April 12, 2028 only in the event that the regulatory closing condition and the Transaction Agreement closing condition have not then been satisfied and there is not in effect an order restraining, enjoining or otherwise prohibiting the consummation of the transactions contemplated by the Trivium Purchase Agreement, or (ii) the Transaction Agreement is terminated, subject to certain exceptions. If the Trivium Purchase Agreement is terminated as a result of (i) an uncured MetalCo breach, including any such uncured MetalCo breach at any time following the outside date, or (ii) MetalCo’s failure to close following the satisfaction or waiver of the closing conditions applicable to MetalCo and the Sellers and Trivium are ready, willing and able to consummate the transactions contemplated thereby, MetalCo is obligated to pay Trivium a termination fee of $40 million. If the Trivium Purchase Agreement is terminated as a result of the Transaction Agreement terminating, subject to certain exceptions, MetalCo is obligated to pay Trivium a termination fee of $75 million. If the Trivium Purchase Agreement is terminated as a result of a willful breach by MetalCo of the Trivium Purchase Agreement, determined by a final non-appealable order or judgment of a court of competent jurisdiction or a written settlement agreement entered into by the Sellers and MetalCo, MetalCo is obligated to pay Trivium damages not to exceed $100 million plus any costs and expenses incurred by Trivium in connection with the enforcement of the Trivium Purchase Agreement not to exceed $3 million. In no event is MetalCo required to pay (i) both (x) a termination fee and (y) monetary damages in respect of any MetalCo breach (subject to the $100 million cap) or (ii) both termination fees.
MetalCo expects to fund the obligations under the Trivium Purchase Agreement through the borrowings described under the heading “MetalCo Debt Commitment Letter” below and the cash contribution from the A-VL Investor described under the heading “Transaction Agreement.”
The Company, or a direct or indirect wholly owned subsidiary of the Company, and an affiliate of the A-VL Investor have each provided a limited guarantee in favor of Trivium guaranteeing such guarantor’s agreed share of certain payment obligations of MetalCo under the Put Option Agreement and the Trivium Purchase Agreement.
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The foregoing description of the Trivium Purchase Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Trivium Purchase Agreement, which is filed as Exhibit 10.3 to this Current Report on Form 8-K and incorporated by reference herein.
The Transaction Agreement and the Trivium Purchase Agreement have been filed to provide security holders with information regarding their respective terms. They are not intended to provide any other factual information about the Company, Trivium, the Sellers or their respective subsidiaries and affiliates. The Transaction Agreement and the Trivium Purchase Agreement contain or reference various representations, warranties and covenants by the parties to the Transaction Agreement and the Trivium Purchase Agreement. These representations, warranties and covenants were made solely for the benefit of the other parties to the Transaction Agreement and the Trivium Purchase Agreement and (i) are not intended to be treated as categorical statements of fact, but rather as a way of allocating risk to one of the parties if those statements prove to be inaccurate, (ii) may have been qualified by confidential disclosure schedules or other documents that were delivered to the other party in connection with the Transaction Agreement or the Trivium Purchase Agreement and which contain information that modifies, qualifies and creates exceptions to the representations, warranties and covenants set forth in the Transaction Agreement or the Trivium Purchase Agreement, (iii) may be subject to standards of materiality applicable to the parties that differ from what might be viewed as material to stockholders and (iv) were made only as of the date of the Transaction Agreement and the Trivium Purchase Agreement or such other date or dates as may be specified in the Transaction Agreement or the Trivium Purchase Agreement. Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the date of the Transaction Agreement and the Trivium Purchase Agreement, which subsequent information may or may not be fully reflected in public disclosures by the Company. Accordingly, you should not rely on the representations, warranties and covenants or any descriptions thereof as characterizations of the actual state of facts or condition of the Company or Trivium.
MetalCo Debt Commitment Letter
On the Signing Date, in connection with the proposed acquisition of Trivium and the closing under the Transaction Agreement, MetalCo entered into a debt commitment letter (the “Debt Commitment Letter”) with Wells Fargo Bank, National Association (“Wells Fargo Bank”), Wells Fargo Securities, LLC (“Wells Fargo Securities” and, together with Wells Fargo Bank, “Wells Fargo”), Goldman Sachs Bank USA (“Goldman Sachs”), Royal Bank of Canada (“RBC”), RBC Capital Markets (“RBCCM”), Deutsche Bank AG New York Branch (“DBNY”), Deutsche Bank Securities Inc. (“DBSI” and, together with DBNY, “DB”), Bank of America, N.A. (“Bank of America”), BofA Securities, Inc. (together with its designees and affiliates, “BofA Securities” and, together with Wells Fargo, Goldman Sachs, RBC, RBCCM, DB, Bank of America and each additional arranger appointed pursuant to the terms therein, the “Commitment Parties”), pursuant to which the Commitment Parties have agreed to provide, subject to the satisfaction of customary closing conditions, commitments for (i) a new senior secured term loan facility in an aggregate principal amount of approximately $4.9 billion and (ii) a new senior secured revolving facility in an aggregate principal amount of $1.0 billion (collectively, the “Debt Financing”). Proceeds from the Debt Financing and the cash contribution from the A-VL Investor will be used to fund (a) payment of amounts to be paid by MetalCo pursuant to the Trivium Purchase Agreement, (b) the repayment of approximately $3.1 billion of indebtedness of Trivium pursuant to the Trivium Purchase Agreement, (c) the payment of other fees, expenses and costs incurred in connection with the foregoing, (d) the distribution of the Silgan Distribution Amount and the payment of certain other amounts, as applicable, as contemplated by the Transaction Agreement, and (e) working capital and general corporate purposes of MetalCo and its subsidiaries following the Closing. The receipt of debt financing by MetalCo is not a condition to MetalCo’s obligation to consummate either the transactions contemplated by the Transaction Agreement or the Trivium Purchase Agreement.
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Silgan and its subsidiaries (other than MetalCo and its subsidiaries) will not be guarantors under the MetalCo senior secured debt facilities, and none of the assets of Silgan and its subsidiaries (other than MetalCo and its subsidiaries) will be pledged to secure the obligations of MetalCo under its senior secured debt facilities.
The foregoing description of the Debt Commitment Letter does not purport to be complete and is qualified in its entirety by reference to the full text of the Debt Commitment Letter, which is filed as Exhibit 10.4 to this Current Report on Form 8-K and incorporated by reference herein.
Amended and Restated Limited Liability Company Agreement
Upon the Closing, MetalCo, SH LLC, the A-VL Investor, the Company (solely for the certain limited sections set forth therein) and Sponsor (solely for the limited section set forth therein) will enter into a First Amended and Restated Limited Liability Company Agreement of MetalCo (the “A&R LLCA”), the form of which is attached to the Transaction Agreement.
The A&R LLCA will provide that, as of the Closing, the board of directors of MetalCo will consist of five directors: three designated by SH LLC, including the MetalCo chairperson, and two designated by the A-VL Investor. Each of SH LLC’s and the A-VL Investor’s director designation rights step down in connection with certain decreases in their MetalCo ownership, and each of SH LLC and the A-VL Investor may also designate up to two non-voting board observers for as long as such member may designate a director to the MetalCo board. The A-VL Investor has certain consent rights with respect to a number of fundamental matters under the A&R LLCA, which apply for as long as the A-VL Investor holds any MetalCo units and has other operational consent rights while the A-VL Investor holds at least 25% of its initial ownership of MetalCo units and prior to a Spin-Off (as defined below) or a sale of MetalCo. The MetalCo chairperson will be Anthony J. Allott, the Non-Executive Chairman of the Board of Directors of the Company.
The A&R LLCA will also provide that distributions from MetalCo will be made pro rata, at times and in amounts determined by the MetalCo board, to be evaluated on at least a quarterly basis, to the extent MetalCo has distributable cash and its senior secured credit agreement permits, along with quarterly tax distributions. The A-VL Investor will also be entitled to certain priority payments in amounts set forth in the A&R LLCA, payable out of distributions (other than tax distributions) that would otherwise be payable to SH LLC until such priority payments have been paid in full.
Pursuant to the terms of the A&R LLCA, SH LLC will have the right (but not the obligation), in its sole discretion, to effect either a spin-off of MetalCo or a spin-off of Silgan’s non-MetalCo businesses (which would exclude MetalCo and its subsidiaries), in each case that is intended to be tax-free (a “Spin-Off”); provided, that a Spin-Off may not be consummated prior to the two year anniversary of the Closing without the consent of both SH LLC and the A-VL Investor. In addition, on or prior to the date that is forty-two (42) months after the Closing, and each annual anniversary of such date thereafter, the A-VL Investor may (i) propose that SH LLC initiate a Spin-Off (a “Spin-Off Request”) and (ii) indicate that, if SH LLC does not initiate a Spin-Off, the A-VL Investor intends to exercise its right to cause SH LLC to purchase at least 20% and up to 33.33% of the A-VL Investor’s initial units in MetalCo (or, if the A-VL Investor then holds less than 20% of its initial units in MetalCo, all of the A-VL Investor’s units in MetalCo) (the “Conditional Liquidity Right”) during the next Conditional Liquidity Window (as defined below). The “Conditional Liquidity Window” in the A&R LLCA is the 30-day period following the four (4) year anniversary of the Closing and each annual anniversary thereafter. If the A-VL Investor does not deliver a timely Spin-Off
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Request, the A-VL Investor may not exercise the Conditional Liquidity Right during the next Conditional Liquidity Window. A Spin-Off Request will not constitute an exercise of the Conditional Liquidity Right by the A-VL Investor nor an obligation of the A-VL Investor to exercise the Conditional Liquidity Right. If the A-VL Investor does deliver such Spin-Off Request and then also exercises its Conditional Liquidity Right by delivering written notice thereof during the next Conditional Liquidity Window (the “Conditional Liquidity Notice”), SH LLC will be obligated to purchase either the amount of equity interests specified in the A-VL Investor’s Spin-Off Request or, at SH LLC’s option, up to 150% of such equity interests specified in the A-VL Investor’s Spin-Off Request. The closing of SH LLC’s purchase under the Conditional Liquidity Right will be suspended until the date that is six months following the delivery of the Conditional Liquidity Notice if Silgan publicly announces that it is evaluating or pursuing a Spin-Off within 90 days following the A-VL Investor’s delivery of its Conditional Liquidity Notice. If the Spin-Off is consummated prior to six months following the delivery of the Conditional Liquidity Notice (the “Spin-Off Period”), the Conditional Liquidity Right automatically terminates. Conversely, if the Spin-Off is not consummated prior to the expiration of the Spin-Off Period, SH LLC will be obligated to consummate the purchase of the specified A-VL Investor units after the end of the Spin-Off Period as provided in the A&R LLCA.
Before an initial public offering of MetalCo or a Spin-Off, neither SH LLC nor the A-VL Investor may transfer MetalCo units except to their respective affiliates, or with the other party’s prior consent. After the tenth anniversary of the Closing or at any time where the A-VL Investor owns less than 25% of its original MetalCo units, SH LLC may effect a sale of MetalCo and the A-VL Investor would be subject to a customary drag-along obligation to sell its units in such sale, subject to certain protections for the A-VL Investor.
After the tenth anniversary of the Closing or at any time the A-VL Investor no longer holds at least 25% of its initial units in MetalCo, and provided a Spin-Off has not occurred, SH LLC will have the right to purchase all of the A-VL Investor’s remaining units in MetalCo.
The purchase price for the A-VL Investor’s units with respect to the Conditional Liquidity Right or SH LLC’s rights to otherwise purchase the A-VL Investor’s units will be based on an implied equity value equal to the enterprise value of MetalCo calculated by applying an 8.25x multiple to the last twelve months of MetalCo’s earnings before interest, taxes, depreciation and amortization, as of the end of the most recently completed fiscal quarter, less net debt and subject to other customary adjustments, with such implied equity value allocated among the holders of MetalCo units as if distributed in a hypothetical sale in accordance with the distribution provisions of the A&R LLCA.
The foregoing description of the A&R LLCA does not purport to be complete and is qualified in its entirety by reference to the full text of the A&R LLCA, which is filed as Exhibit 10.5 to this Current Report on Form 8-K and incorporated by reference herein.
Section 5—Corporate Governance and Management
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
Consulting Agreement with Anthony J. Allott
On the Signing Date, Silgan entered into a consulting agreement with Anthony J. Allott, the Non-Executive Chairman of the Board of Directors of the Company (the “Consulting Agreement”). Under the Consulting Agreement, Mr. Allott has been engaged as an independent consultant to, prior to the Closing, assist with preparing for the closing of the transactions contemplated by the Transaction Agreement and the Trivium
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Purchase Agreement, including assisting with concluding other transaction documents, assisting the Company’s team in fulfilling closing conditions, serving as the Company’s primary point of contact in coordinating regulatory clearances, overseeing the separation activities for the Metal Containers and Closures Business and the contributions by the Company to MetalCo of the Metal Containers and Closures Business, overseeing the preparation for the integration of Trivium with the Metal Containers and Closures Business, and assisting in monitoring the conduct and performance of Trivium prior to the Closing. In addition, following the Closing, Mr. Allott will serve, on Silgan’s behalf, as a Silgan-designated director and as the initial non-executive chairperson of the MetalCo board and, until a chief executive officer of MetalCo is named, interim CEO of MetalCo and provide operational support, oversight, integration and leadership assistance for the combined MetalCo businesses.
Mr. Allott’s compensation under the Consulting Agreement is payable by the Company and consists of (i) a consulting fee of $250,000 per month during the term of the Consulting Agreement (pro-rated for any partial month, as applicable) for the services to be provided by Mr. Allott as generally described above, which amount is reimbursable by MetalCo, (ii) an up-front fee of $250,000 per month in respect of the period from November 1, 2025 to the Signing Date (pro-rated for the month of the Signing Date), payable within 20 days after the Signing Date, in respect of Mr. Allott’s substantial services rendered during such period with respect to Mr. Allott’s assistance with the negotiation of the Transaction Agreement, the A&R LLCA, the Put Option Agreement, the Trivium Purchase Agreement, the MetalCo Debt Commitment Letter and the other agreements and documents entered into or to be entered into in connection therewith, assistance with and oversight of the due diligence review by Sponsor of the Metal Containers and Closures Business and the due diligence review by the Company of Trivium, and leadership and assistance with other pre-signing workstreams including transaction structuring, separation planning and financing matters for the transactions, and (iii) an additional fee of $150,000 per month from the Signing Date until the Closing (pro-rated for any partial month, as applicable), contingent upon the closings occurring under both the Transaction Agreement and the Trivium Purchase Agreement, payable following such closings, in consideration of the extraordinary efforts required in connection with the execution of the various transaction agreements entered into or to be entered into for the transactions and the consummation of the closings under both the Transaction Agreement and Trivium Purchase Agreement. Mr. Allott will also be entitled to reimbursement of reasonable, documented out-of-pocket travel and accommodation expenses. The parties to the Consulting Agreement have also agreed to have further good faith discussions, as required under the Consulting Agreement, with respect to the amount of the consulting fees payable under the Consulting Agreement and with respect to a bonus payable to Mr. Allott under the Consulting Agreement pursuant to a bonus plan to be approved by the Company. Mr. Allott may also receive equity incentive compensation in the form of profits interests in MetalCo subject to the Company’s and MetalCo’s approval.
The Consulting Agreement is effective until terminated in accordance with its terms. The Consulting Agreement will automatically terminate if the Transaction Agreement or the Trivium Purchase Agreement is terminated prior to the Closing or the Put Option expires without being exercised.
The foregoing description of the Consulting Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Consulting Agreement, which is filed as Exhibit 10.6 to this Current Report on Form 8-K and incorporated by reference herein.
Forward-Looking Statements
Statements included in this Current Report on Form 8-K 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 the Securities Exchange Act of 1934, as amended. Such forward looking statements are made based upon management’s expectations and beliefs concerning future events impacting the Company and therefore
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involve a number of uncertainties and risks, including, but not limited to, those described in the Company’s Annual Report on Form 10-K for 2025 and other filings with the Securities and Exchange Commission. Therefore, the actual results of the transactions and matters set forth herein Company could differ materially from those expressed or implied in such forward looking statements.
Section 9 — Financial Statements and Exhibits
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
| * | Certain schedules and similar attachments to this exhibit have been omitted pursuant to Item 601(a)(5) of Regulation S-K. The Company agrees to provide a copy of the omitted schedules and similar attachments on a supplemental basis to the Commission or its staff, if requested. |
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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.
| SILGAN HOLDINGS INC. | ||
| By: | /s/ Frank W. Hogan, III | |
| Frank W. Hogan, III | ||
| Executive Vice President, General Counsel and Secretary | ||
Date: October 19, 2026
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Exhibit 10.1
EXECUTION VERSION
TRANSACTION AGREEMENT
BY AND AMONG
SILGAN HOLDINGS INC.,
A-VL HOLDCO, LP,
AND
SILGAN METAL PACKAGING LLC
Dated as of October 17, 2026
TABLE OF CONTENTS
| Page | ||||||||
| ARTICLE I DEFINITIONS | 3 | |||||||
| 1.1 | Certain Definitions |
3 | ||||||
| 1.2 | Terms Defined Elsewhere in this Agreement |
24 | ||||||
| 1.3 | Other Definitional and Interpretive Matters |
27 | ||||||
| ARTICLE II CONTRIBUTION AND EXCHANGE; CLOSING | 30 | |||||||
| 2.1 | Closing Transactions |
30 | ||||||
| 2.2 | Closing |
31 | ||||||
| 2.3 | Closing Deliveries of the Parties |
32 | ||||||
| 2.4 | Closing Statement |
36 | ||||||
| 2.5 | Post-Closing Statement |
37 | ||||||
| 2.6 | Withholding |
40 | ||||||
| 2.7 | Post-Closing Register Updates |
40 | ||||||
| ARTICLE III REPRESENTATIONS AND WARRANTIES REGARDING SHI | 41 | |||||||
| 3.1 | Organization and Good Standing |
41 | ||||||
| 3.2 | Authorization of Agreement |
41 | ||||||
| 3.3 | Ownership of the Company Shares; RSUs |
41 | ||||||
| 3.4 | Non-contravention |
42 | ||||||
| 3.5 | Litigation |
43 | ||||||
| 3.6 | Brokers’ Fee |
43 | ||||||
| 3.7 | SHI Existing Debt |
43 | ||||||
| 3.8 | Non-Reliance |
43 | ||||||
| ARTICLE IV REPRESENTATIONS AND WARRANTIES REGARDING THE ACQUIRED COMPANIES | 44 | |||||||
| 4.1 | Organization and Good Standing |
44 | ||||||
| 4.2 | Authorization of Agreement |
44 | ||||||
| 4.3 | Conflicts; Consents of Third Parties |
45 | ||||||
| 4.4 | Capitalization |
45 | ||||||
| 4.5 | Company Subsidiaries |
46 | ||||||
| 4.6 | Financial Statements |
47 | ||||||
| 4.7 | No Undisclosed Liabilities |
48 | ||||||
| 4.8 | Absence of Certain Developments |
48 | ||||||
| 4.9 | Taxes |
48 | ||||||
| 4.10 | Real Property |
51 | ||||||
| 4.11 | Personal Property |
52 | ||||||
| 4.12 | Intellectual Property |
52 | ||||||
| 4.13 | Material Contracts |
54 | ||||||
| 4.14 | Employee Benefit Plans |
57 | ||||||
| 4.15 | Labor |
61 | ||||||
| 4.16 | Litigation |
62 | ||||||
| 4.17 | Compliance with Laws; Permits |
63 | ||||||
| 4.18 | International Trade and Improper Payments |
63 | ||||||
| 4.19 | Environmental Matters |
64 | ||||||
| 4.20 | Insurance |
65 | ||||||
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| Page | ||||||||
| 4.21 | Related Party Agreements |
66 | ||||||
| 4.22 | Brokers’ Fee |
66 | ||||||
| 4.23 | Privacy |
66 | ||||||
| 4.24 | Vendors and Customers |
67 | ||||||
| 4.25 | Restructuring Projects |
68 | ||||||
| 4.26 | Product Liability; Product Safety; Recalls |
68 | ||||||
| 4.27 | Sufficiency of Assets |
68 | ||||||
| ARTICLE V REPRESENTATIONS AND WARRANTIES OF METALCO | 68 | |||||||
| 5.1 | Organization and Good Standing |
68 | ||||||
| 5.2 | Authorization of Agreement |
69 | ||||||
| 5.3 | Conflicts; Consents of Third Parties |
69 | ||||||
| 5.4 | MetalCo Subsidiaries |
70 | ||||||
| 5.5 | Litigation |
70 | ||||||
| 5.6 | Brokers’ Fees |
70 | ||||||
| 5.7 | Debt Commitment Letter |
70 | ||||||
| 5.8 | Solvency |
71 | ||||||
| 5.9 | Non-Reliance |
72 | ||||||
| ARTICLE VI REPRESENTATIONS AND WARRANTIES OF A-VL HOLDINGS | 72 | |||||||
| 6.1 | Organization and Good Standing |
72 | ||||||
| 6.2 | Authorization of Agreement |
73 | ||||||
| 6.3 | Conflicts; Consents of Third Parties |
73 | ||||||
| 6.4 | Litigation |
74 | ||||||
| 6.5 | Brokers’ Fees |
74 | ||||||
| 6.6 | Equity Commitment Letter |
74 | ||||||
| 6.7 | Limited Guarantee |
74 | ||||||
| 6.8 | Non-Reliance |
74 | ||||||
| ARTICLE VII COVENANTS | 75 | |||||||
| 7.1 | Access to Information |
75 | ||||||
| 7.2 | Conduct of the Business Pending the Closing |
77 | ||||||
| 7.3 | Regulatory Filings |
83 | ||||||
| 7.4 | Further Assurances |
84 | ||||||
| 7.5 | Indemnification |
84 | ||||||
| 7.6 | Publicity |
84 | ||||||
| 7.7 | Employee Matters |
85 | ||||||
| 7.8 | Certain Obligations in Respect of Financing |
86 | ||||||
| 7.9 | Tax Matters |
89 | ||||||
| 7.10 | Silgan Disclosure Schedules |
95 | ||||||
| 7.11 | Acknowledgments by MetalCo. |
96 | ||||||
| 7.12 | Pre-Closing Sharing of Data |
96 | ||||||
| 7.13 | Litigation Support |
97 | ||||||
| 7.14 | Title Insurance and Survey |
97 | ||||||
| 7.15 | Third-Party Consents |
98 | ||||||
| 7.16 | Intercompany Accounts and Intercompany Arrangements |
98 | ||||||
| 7.17 | Financial Obligations |
99 | ||||||
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TABLE OF CONTENTS
| Page | ||||||||
| 7.18 | Insurance |
102 | ||||||
| 7.19 | Payments |
106 | ||||||
| 7.20 | Misallocated Assets |
106 | ||||||
| 7.21 | Shared Contracts |
107 | ||||||
| 7.22 | Reorganization |
108 | ||||||
| 7.23 | Required Notices |
109 | ||||||
| 7.24 | Portola Liquidations |
109 | ||||||
| 7.25 | MIHBV Valuation |
109 | ||||||
| 7.26 | Phase Is |
109 | ||||||
| 7.27 | Retained IP |
110 | ||||||
| 7.28 | Joint Procurement Agreement |
110 | ||||||
| ARTICLE VIII CONDITIONS TO CLOSING | 110 | |||||||
| 8.1 | Conditions Precedent to Obligations of the Parties |
110 | ||||||
| 8.2 | Conditions Precedent to Obligations of MetalCo. |
111 | ||||||
| 8.3 | Conditions Precedent to Obligations of SHI |
112 | ||||||
| 8.4 | Conditions Precedent to Obligations of A-VL Holdings |
113 | ||||||
| 8.5 | Frustration of Closing Conditions |
114 | ||||||
| ARTICLE IX TERMINATION | 114 | |||||||
| 9.1 | Termination of Agreement |
114 | ||||||
| 9.2 | Effect of Termination |
116 | ||||||
| ARTICLE X INDEMNIFICATION | 116 | |||||||
| 10.1 | Survival |
116 | ||||||
| 10.2 | Indemnification by SHI |
117 | ||||||
| 10.3 | Indemnification by MetalCo. |
118 | ||||||
| 10.4 | Indemnification by A-VL Holdings |
118 | ||||||
| 10.5 | Procedures |
119 | ||||||
| 10.6 | Exclusive Remedy and Release |
120 | ||||||
| 10.7 | Additional Indemnification Provisions |
120 | ||||||
| 10.8 | Limitation on Liability |
121 | ||||||
| 10.9 | Mitigation |
122 | ||||||
| 10.10 | Proportionate Recovery |
122 | ||||||
| ARTICLE XI MISCELLANEOUS | 123 | |||||||
| 11.1 | Expenses |
123 | ||||||
| 11.2 | Governing Law; Jurisdiction; Consent to Service of Process; Waiver of Jury |
124 | ||||||
| 11.3 | Entire Agreement |
125 | ||||||
| 11.4 | Amendments and Waivers |
125 | ||||||
| 11.5 | Notices |
126 | ||||||
| 11.6 | Severability |
127 | ||||||
| 11.7 | Binding Effect; Assignment |
127 | ||||||
| 11.8 | No Third Party Beneficiaries |
128 | ||||||
| 11.9 | Legal Representation |
128 | ||||||
| 11.10 | Non-Recourse |
128 | ||||||
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| Page | ||||||||
| 11.11 | Specific Performance |
129 | ||||||
| 11.12 | Release |
130 | ||||||
| 11.13 | Counterparts |
131 | ||||||
| 11.14 | Debt Financing Sources |
131 | ||||||
| Exhibits |
||||||
| Exhibit A | Sample Working Capital Schedule |
|||||
| Exhibit B | Transaction Accounting Principles |
|||||
| Exhibit C | Form of Transition Services Agreement |
|||||
| Exhibit D | Form of IP License Agreement |
|||||
| Exhibit E | Form of Restrictive Covenant Agreement |
|||||
| Exhibit F | Reorganization Steps Plan |
|||||
| Exhibit G | Joint Procurement Term Sheet |
|||||
| Exhibit H | Form of MetalCo LLC Agreement |
|||||
iv
TRANSACTION AGREEMENT
This TRANSACTION AGREEMENT (this “Agreement”), dated as of October 17, 2026, is entered into by and among: (a) Silgan Holdings Inc., a Delaware corporation (“SHI”), (b) A-VL Holdco, LP, a Delaware limited partnership (“A-VL Holdings”), and (c) Silgan Metal Packaging LLC, a Delaware limited liability company (“MetalCo”). Each of SHI, A-VL Holdings and MetalCo is referred to herein as a “Party” and collectively, as the “Parties”.
W I T N E S S E T H:
WHEREAS, prior to the date hereof, Silgan Holdings LLC, a Delaware limited liability company and wholly-owned subsidiary of SHI (“Silgan Holdings”), formed MetalCo by filing a Certificate of Formation with the Secretary of State of the State of Delaware;
WHEREAS, prior to the Closing, as part of the Reorganization (as defined herein), (a) Silgan Holdings will cause MetalCo to form (i) a new limited liability company under the laws of the State of Delaware that will be an indirect wholly-owned subsidiary of MetalCo (“MetalCo Bidco”), (ii) one or more new limited liability companies under the laws of the State of Delaware that will be intermediate holding companies of MetalCo Bidco and direct or indirect wholly-owned subsidiaries of MetalCo (each, a “MetalCo Intermediate Holdco”), and (b) Silgan International Holdings B.V., a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) organized under the laws of the Netherlands and an indirect wholly-owned subsidiary of SHI (“SIHBV”), will form a new private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) organized under the laws of the Netherlands (“MIHBV”) by the execution of a notarial deed of incorporation (akte van oprichting) before a civil-law notary in the Netherlands, and MIHBV will be registered with the Dutch Trade Register (Handelsregister) of the Netherlands Chamber of Commerce (Kamer van Koophandel);
WHEREAS, on the terms and subject to the conditions set forth herein, prior to the Closing, SHI will, and will cause its applicable Affiliates to, complete the Reorganization (as defined herein) in accordance with the Reorganization Plan (as defined herein) attached hereto as Exhibit F (as may be amended in accordance with Section 7.22) and enter into the Restructuring Documents (as defined herein) in connection therewith;
WHEREAS, on the terms and subject to the conditions set forth herein, at the Closing, in the order set forth in Section 2.1, (a) Silgan Holdings will contribute the Equity Securities (as defined herein) of the U.S. Companies (as defined herein) to MetalCo, (b) MetalCo will contribute the Equity Securities of the U.S. Companies to MetalCo Bidco via the MetalCo Intermediate Holdcos, (c) SIHBV will transfer the Equity Securities of MIHBV to MetalCo Bidco in exchange for the MIHBV Transfer Note (as defined herein), (d) MetalCo Bidco will distribute the MIHBV Transfer Note to Silgan Holdings via the MetalCo Intermediate Holdcos and MetalCo, and Silgan Holdings will assume all obligations under the MIHBV Transfer Note, (e) solely if elected by SHI, (i) SHI will incur debt with a principal amount equal to the SHI Debt Amount (as defined herein) and (ii) MetalCo will consummate the Debt Assumption (as defined herein), in each case, in accordance with Section 7.8(j), (f) A-VL Holdings will make the A-VL Holdings Investment (as defined herein) and in exchange therefor, MetalCo will issue MetalCo Units to A-VL Holdings representing, in the aggregate, forty percent (40%) of the issued and outstanding
Equity Securities of MetalCo as of immediately following the Closing, (g) MetalCo will, subject to Section 2.1(g), distribute the Silgan Distribution Amount (as defined herein) to Silgan Holdings, and (h) MetalCo, Silgan Holdings and A-VL Holdings will enter into the First Amended & Restated Limited Liability Company Agreement of MetalCo, dated as of the Closing Date, substantially in the form attached as Exhibit H to this Agreement (together with any changes as may be agreed pursuant thereto, the “MetalCo LLC Agreement”), to govern their respective rights and obligations as equityholders of MetalCo following the Closing, including in respect of the treatment of the Remaining Share of SCF Offset Amount (as finally determined pursuant to Section 2.5) (the “Final Remaining Share of SCF Offset Amount”);
WHEREAS, concurrently with the execution of this Agreement and as a condition and inducement to SHI’s willingness to enter into this Agreement, A-VL Holdings has delivered to SHI and Silgan Holdings (a) an executed commitment letter from American Industrial Partners Capital Fund IX, L.P. (“Fund IX”, in such capacity, the “Equity Financing Source”) in favor of A-VL Holdings, dated as of the date of this Agreement (including all exhibits, schedules, annexes, supplements, and amendments thereto to the extent permitted hereunder and thereunder, the “Equity Commitment Letter”, and the commitments thereunder, the “Equity Financing Commitment”) to provide, subject to the terms and conditions therein, cash in the aggregate amount set forth therein (the “Equity Financing”), and (b) a limited guarantee of Fund IX (in such capacity, the “Guarantor” and, such limited guarantee, the “Limited Guarantee”), pursuant to which the Guarantor has guaranteed certain of A-VL Holdings’ obligations pursuant to Section 9.2 of this Agreement, subject to the terms and conditions set forth in the Limited Guarantee;
WHEREAS, concurrently with the execution of this Agreement and as a condition and inducement to SHI’s willingness to enter into this Agreement, MetalCo is entering into that certain Put Option Agreement (the “Project Voyage Put Option Agreement”) with Trivium Packaging B.V. and the other seller parties thereto, pursuant to which, among other things, the parties thereto will subsequently enter into (or, in accordance with Section 2.4 thereof, will be deemed to have entered into) that certain Share Purchase Agreement attached to the Project Voyage Put Option Agreement (the “Project Voyage Purchase Agreement”) in accordance with the terms and subject to the conditions set forth in the Project Voyage Put Option Agreement; and
WHEREAS, simultaneously with the Closing under this Agreement, SHI, MetalCo and certain of their respective Affiliates desire to enter into certain other agreements in connection with the Transactions.
2
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter contained, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Definitions. For purposes of this Agreement, the following terms shall have the meanings specified in this Section 1.1:
“A-VL Holdings Fundamental Representations” means those representations and warranties set forth in Section 6.1, Section 6.2 and Section 6.5.
“A-VL Holdings Investment Amount” means an amount equal to $1,025,000,000.
“Acquired Companies” means, collectively, the Companies and the Company Subsidiaries; provided that MIHBV shall only become an “Acquired Company” for purposes of this Agreement upon its formation following the date of this Agreement.
“Acquired Company Data” means all data, information, and data compilations contained in the IT Systems or any databases of the Acquired Companies, including Personal Information, that are used by, or necessary to the business of the Acquired Companies.
“Acquired Company Employee” means (a) other than any such employee who, during the twelve (12) month period prior to the date of this Agreement, devoted a majority of his or her working time to the Retained Business and each employee identified by employee identification number on Schedule 1.1(a)(i) of the Silgan Disclosure Schedules (in each case who will be transferred from an Acquired Company to a Retained Company), any employee of any Acquired Company, and (b) any employee of SHI or any of its Affiliates (other than the Acquired Companies) who, during the twelve (12) month period prior to the date of this Agreement, devoted a majority of his or her working time to the Business (excluding any employee of SHI located at its corporate headquarters) and each employee identified by employee identification number on Schedule 1.1(a)(ii) of the Silgan Disclosure Schedules (in each case who will be transferred from a Retained Company to an Acquired Company), in each case, as such schedules may be updated by mutual written agreement between SHI and MetalCo prior to the Closing.
“Acquired Company Privacy Policies” means any (a) internal or external past or present data protection, data usage, privacy and security policies of the Acquired Companies, (b) public statements, representations, obligations, promises, commitments relating to privacy, security, or the Processing of Personal Information, and (c) policies and obligations applicable to the Acquired Companies as a result of any certification relating to privacy, security, or the Processing of Personal Information.
“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person, and the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise; provided, however, notwithstanding anything to the contrary contained herein, in no event shall (a) AIP, LLC, Fund IX or any of their respective Affiliates, portfolio companies, investment vehicles, funds or any other similar entities be considered an
3
“Affiliate” of A-VL Holdings, SHI, MetalCo, any MetalCo Subsidiary or any Acquired Company, except with respect to Section 7.1(a), Section 7.6(b), Section 7.12, Section 9.2, Section 11.9(b) or Section 11.12, (b) SHI or any Retained Company be considered an “Affiliate” of A-VL Holdings, MetalCo, any MetalCo Subsidiary or, following the Closing, any Acquired Company or (c) MetalCo or any MetalCo Subsidiary be considered an “Affiliate” of SHI, any Retained Company or A-VL Holdings.
“Aggregate Adjustment Amount” means an amount (which may be a positive or negative number) equal to (a) the Closing Cash Amounts, plus (b) the Working Capital Adjustment Amount, minus (c) the Closing Debt, minus (d) the Closing Silgan Transaction Expenses.
“Assumed Indebtedness” means all Debt of the Acquired Companies under the financing arrangements set forth on Schedule 1.1(b) of the Silgan Disclosure Schedules, in each case to the extent outstanding as of the Calculation Time and not repaid, redeemed or otherwise discharged at or prior to the Closing.
“Benefit Plan” means each material “employee benefit plan” (as such term is defined in Section 3(3) of ERISA, whether or not subject to ERISA) and each other material benefit or compensation plan, policy, agreement, program, practice, or arrangement, including each material retirement, supplemental retirement, pension (including German unfunded book-reserve pension commitments (Direktzusagen)), savings, profit sharing, equity or equity-based, deferred compensation, bonus, incentive compensation, sales commission, severance, employment, individual consulting, fringe benefit, vacation, paid time off, disability, death benefit, tax gross-up or indemnification, flexible spending, tuition reimbursement, medical, dental, life or other health and welfare, retiree medical or life insurance plan, policy, agreement, program, practice, or arrangement: (a) which is sponsored or maintained by any Acquired Company or to which any Acquired Company is obligated to contribute, (b) to which any Acquired Company is a party, (c) in which any former employee or service provider of an Acquired Company or an Acquired Company Employee participates related to their services provided to such Acquired Company, or (d) with respect to which any Acquired Company has, or could reasonably be expected to have, any material obligation or Liability.
“Business” means the development, manufacture, sale and distribution of metal food and general line containers (including ends for metal food and general line cans), metal vacuum closures, plastic vacuum closures, non-dispensing plastic dairy closures and aluminum roll-on closures for beer and non-alcoholic beverages, all as conducted by the Acquired Companies, SHI or their respective Affiliates on the date hereof and/or as of the Closing Date; provided, however, that for the avoidance of doubt the term “Business” shall not include (a) the dispensing and specialty closures business conducted by the Retained Companies, (b) the custom containers and plastic containers business conducted by the Retained Companies or (c) the businesses set forth on Schedule 1.1(c) of the Silgan Disclosure Schedules, and no portion of the Retained Business shall, directly or indirectly, be transferred to or assumed by MetalCo or any Acquired Company.
“Business Day” means any day of the year other than (a) a Saturday, Sunday or federal holiday in the United States or the Netherlands or (b) a day on which national banking institutions in New York City, New York or Amsterdam, the Netherlands are required or authorized to close.
4
“Calculation Time” means 11:59 p.m. Eastern Time on the date immediately before the Closing Date.
“Cash Amounts” means, of any Person and as of any time, all cash and cash equivalents (that are immediately convertible into cash), whether held in or as bank and other depositary accounts and safe deposit boxes, demand accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, in each case of such Person as of such time and calculated in accordance with the Transaction Accounting Principles; provided that “Cash Amounts” shall, without duplication, (a) be reduced by the total amount of outstanding checks and drafts issued but not yet debited against the applicable amount, (b) exclude cash posted to support letters of credit, credit card receivables, security deposits, performance bonds or otherwise held as collateral, as a security or similar deposit (including real estate lease deposits and deposits in connection with any vehicle production) or cash held in escrow or any other cash balances that are restricted, (c) be reduced by the amount of any liabilities and expenses (including Taxes) that would be incurred or payable to repatriate to the United States all cash or cash equivalents held by Silgan White Cap (Shanghai) Co., Ltd. in excess of $11,000,000 (taking into account any applicable income tax treaty reduction to withholding tax rates), (d) exclude any insurance or other proceeds received with respect to any casualty, condemnation or litigation to the extent the corresponding liability has not been accrued or discharged if such liability has not been included in Debt, Silgan Transaction Expenses or as a liability in Working Capital, (e) exclude any amounts collected by any Acquired Company for the account of Raiffeisen Bank International AG (“RBI”) in respect of receivables sold under the EU Factoring Agreement that have not been remitted to RBI as of such time and (f) be increased by the total amount of outstanding checks and drafts received by or deposited for the account of such Person but not yet cleared.
“Closing Cash Amounts” means an amount equal to the sum of the Cash Amounts in respect of the Acquired Companies as of the Calculation Time; provided that such calculation shall take into account (and Closing Cash Amounts shall be reduced by) (a) any cash dividends that are paid or declared and payable to SHI or any of its Affiliates (other than the Acquired Companies), and (b) the payment or transfer of any Cash Amounts other than at the direction of MetalCo outside of the ordinary course of business (including any payments or transfers to any of SHI or any of its Affiliates (other than the Acquired Companies) or related to Silgan Transaction Expenses, Debt or Surviving Intercompany Accounts), in each case, following the Calculation Time and prior to the Closing.
“Closing Debt” means an amount equal to the Debt of the Acquired Companies as of immediately prior to the Closing (but including any portion thereof arising or becoming payable as a result of the Closing).
“Closing Silgan Transaction Expenses” means an amount equal to the Silgan Transaction Expenses as of immediately prior to the Closing (but including any portion thereof arising or becoming payable as a result of the Closing).
5
“Closing Working Capital” means the Working Capital as of the Calculation Time.
“COBRA” means Part 6 of Subtitle B of Title I of ERISA, Section 4980B of the Code, or similar state or local Law.
“Code” means the Internal Revenue Code of 1986, as amended.
“Combined Business” means, collectively, the Business and the Trivium Business.
“Companies” means, collectively, (a) (i) Silgan White Cap LLC, a Delaware limited liability company, (ii) Silgan Containers LLC, a Delaware limited liability company (“Silgan Containers”) and (iii) Portola Packaging LLC, a Delaware limited liability company (collectively, this clause (a), the “U.S. Companies”), and (b) MIHBV.
“Company Subsidiaries” means the direct and indirect Subsidiaries of the Companies after giving effect to the Reorganization.
“Confidentiality Agreement” means that certain confidentiality agreement between SHI and AIP, LLC, dated as of January 20, 2026.
“Contract” means any contract, subcontract, agreement, indenture, note, bond, mortgage, loan, instrument, lease, license, sublicense, sublease or other binding arrangement or agreement, in each case, which is legally binding and currently in effect, but excluding any Benefit Plan.
“Cost Sharing Agreement” means that certain Cost Sharing Agreement, dated as of the date hereof, by and between SHI and AIP, LLC.
“Covered Losses” means all losses, Liabilities, Taxes, claims, fines, deficiencies, damages, payments (including those arising out of any settlement or Order relating to any Legal Proceeding), penalties, expenses and reasonable attorneys’ and accountants’ fees and disbursements, (whether incurred as a result of a claim by a third party or a direct claim between the Parties), in each case, to the extent due and payable.
“Data Processor” means any Person that Processes Acquired Company Data on behalf of or at the direction of any Acquired Company, including, but not limited to, a “service provider,” “contractor,” or “processor,” as those terms are defined by Privacy Requirements.
“Debt” means, of any Person and as of any time, the aggregate amount of the following (including all accrued and unpaid interest thereon and all prepayment penalties, breakage fees and exit fees that would be incurred in connection with the repayment thereof at such time), without duplication: (a) the outstanding principal amount of any indebtedness for borrowed money (other than trade payables arising in the ordinary course of business) (including any Assumed Indebtedness); (b) all indebtedness evidenced by bonds, debentures or notes; (c) all capital or finance lease obligations that are classified as a capital or finance lease in the Financial Statements; (d) all direct obligations under letters of credit, performance bonds, surety bonds, bankers’ acceptances or similar facilities, in each case solely to the extent drawn; (e) the deferred purchase price related to the previous acquisition of any businesses (including any “earn-outs” but
6
excluding current trade payables arising in the ordinary course of business); (f) liabilities under interest rate, currency rate or commodity price protection, hedging, derivative or swap, collar, cap or similar arrangement, in each case net of any related assets, determined as if such arrangements were terminated at the applicable time of determination (for the avoidance of doubt, this clause (f) may be a positive or negative amount and reduce Debt); (g) any unfunded or underfunded Liabilities (including with respect to any ERISA Affiliate) with respect to any Benefit Plan providing deferred compensation, retirement, pension, post-termination welfare or other long-term retirement benefits other than with respect to any Multiemployer Plan or the Silgan Containers Supplemental Executive Retirement Plan (with the required funding level for tax-qualified defined benefit plans measured at the level required for certification under Section 4041(b)(2)(A)(i) of ERISA), including, in each case, the employer’s portion of any social security, Medicare, unemployment or other employment, withholding or other payroll Taxes and employer contributions to retirement plans associated with the foregoing amounts; and (h) any indebtedness of a type that is referred to in clauses (a) through (g) above and which is guaranteed by such Person or for which such Person otherwise provides collateral or credit support, in each case, of such Person as of such time; provided that in no event shall Debt include (i) any item included in Silgan Transaction Expenses or Working Capital, (ii) any obligations arising from any financing, debt or other similar arrangement of MetalCo, including in connection with the Debt Financing, (iii) any obligations with respect to any operating leases, including those that have been categorized as operating leases in the Financial Statements, (iv) any obligations solely among or between the Acquired Companies, (v) trade payables and expenses incurred in the ordinary course of business and (vi) any Liabilities assumed by MetalCo pursuant to the Debt Assumption (if consummated) (excluding, for the avoidance of doubt, any accrued and unpaid interest, prepayment penalties, breakage fees, exit fees, upfront fees, closing fees, original issue discount and other similar amounts in connection with any Third Party SHI Debt).
“Debt Financing Source” means, in its capacity as such, each Person (including lenders, arrangers, other additional arrangers, bookrunners, managers, agents, co-agents, lenders, financial institutions, institutional investors, underwriters, commitment parties or similar debt financing sources) providing a commitment to provide or arrange all or any part of, or otherwise entering into agreements in connection with, the Debt Financing and their respective Affiliates, successors and assigns, and such Person’s (and their respective Affiliates’, successors’ and assigns’) equityholders, members, employees, officers, directors, attorneys, agents or advisors.
“Environmental Law” means any applicable Law relating to pollution; the protection of the environment, natural resources or, as it relates to exposure to Hazardous Materials, worker health and safety; or otherwise relating to Hazardous Materials.
“Equity Securities” means (a) any share, capital stock, partnership, membership or similar interest in any Person and (b) any option, warrant, restricted stock, profits interest, right or other Contract to purchase or otherwise acquire any such interest in any Person referred to in clause (a) or security (including debt securities) convertible, exchangeable or exercisable thereto or therefor.
“ERISA” means the Employee Retirement Income Security Act of 1974.
7
“ERISA Affiliate” means any trade or business (whether or not incorporated) which together with any Acquired Company would be treated as a single employer under Section 414 of the Code or Section 4001 of ERISA.
“EU Factoring Agreement” means the Factoring Master Agreement, dated as of December 18, 2014 (as amended and restated by the Amendment and Restatement Agreement dated as of November 14, 2024, and as further amended, restated, supplemented or otherwise modified from time to time), among certain Acquired Companies party thereto as sellers, Silgan Holdings Austria GmbH, as factoring coordinator, and RBI, as purchaser.
“Express Representations” means the representations and warranties (a) expressly and specifically set forth in Article III, Article IV or in any certificate delivered by SHI pursuant to this Agreement or in any other Transaction Document (in each case, as qualified by the Silgan Disclosure Schedules), (b) expressly and specifically set forth in Article V, or in any certificate delivered by MetalCo pursuant to this Agreement or in any other Transaction Document and (c) expressly and specifically set forth in Article VI, or in any certificate delivered by A-VL Holdings pursuant to this Agreement or in any other Transaction Document.
“FDA” means the United States Food and Drug Administration and any successor Governmental Body having substantially the same function.
“Federal Food, Drug, and Cosmetic Act” means the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., as amended from time to time, together with any rules, regulations, and requirements promulgated thereunder.
“Federal Trade Commission Act” means the Federal Trade Commission Act of 1914, 15 U.S.C. § 45 et seq., as amended from time to time, together with any rules, regulations, and requirements promulgated thereunder.
“Fraud” means common law fraud under Delaware law in the making of the Express Representations, in any certificate delivered pursuant to this Agreement or in any other Transaction Document. For the avoidance of doubt, the term “Fraud” does not include any claim for equitable fraud, promissory fraud, unfair dealings fraud, or any torts (including a claim for fraud) based on negligence or recklessness, and only the Person committing such Fraud shall be responsible for such Fraud.
“GAAP” means U.S. generally accepted accounting principles.
“GDPR” means the EU General Data Protection Regulation 2016/679 (“EU GDPR”) as implemented by countries within the European Economic Area and the EU GDPR as retained as law in England and Wales by the European Union (Withdrawal) Act 2018 (as applicable to the processing).
“German Reorganization” means (i) the mergers of Silgan Metal Packaging Distribution GmbH, Silgan Metal Packaging Meissen GmbH, Silgan Metal Packaging Leipzig GmbH and Ruma Industrieverpackung Leipzig GmbH into Silgan Metal Packaging Germany GmbH and thereafter (ii) the contribution of all shares in Silgan Metal Packaging Germany GmbH into Silgan Closures GmbH with the intention of integrating them in the fiscal unity for German corporate income and trade tax purposes with Silgan Closures GmbH as parent.
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“Governmental Body” means any domestic or foreign national, state, multi-state, supranational, provincial, territorial, municipal or other local government, any subdivision, agency, commission or authority thereof, exercising any regulatory or taxing authority or instrumentality (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any court, tribunal, administrative agency, commission or arbitrator of competent jurisdiction.
“Hazardous Materials” means (a) any materials, substances or wastes defined, listed, classified, or regulated under any applicable Environmental Law as “toxic,” “hazardous,” a “pollutant” or “contaminant” or any other words of similar meaning or regulatory effect, or for which standards of liability may otherwise be imposed under any applicable Environmental Law and (b) petroleum and any petroleum by-products or derivatives, asbestos and asbestos-containing materials, polychlorinated biphenyls, lead-based paint, radon, and per- and poly-fluoroalkyl substances.
“Income Tax Liability Amount” means, without duplication, any and all accrued but unpaid income Taxes (including as a result of any amounts includible in gross income under Sections 951 or 951A of the Code) of any Acquired Company for any Pre-Closing Tax Period attributable to (a) the Pre-Closing Tax Period immediately prior to the taxable year that includes the Closing Date (but only to the extent (i) such income Tax Return is not yet due (taking into account extensions) as of the Closing Date or (ii) such income Tax Return is due but the income Taxes shown on such income Tax Return have not yet been paid prior the Closing) and (b) the portion of the Straddle Period ending on the Closing Date (determined, in each case, on an entity-by-entity (unless such entity is consolidated, grouped or affiliated with another Acquired Company), jurisdiction-by-jurisdiction basis and by each particular income Tax type and not to be less than zero in respect of any entity, jurisdiction or such Tax type). The calculation of Income Tax Liability Amount shall (a) exclude any deferred Tax liabilities or deferred Tax assets, (b) be computed as of the end of the day on the Closing Date, (c) be prepared in accordance with the past practice (including reporting positions and accounting methods) of the applicable Acquired Company in preparing Tax Returns for income Taxes unless otherwise required by a change in applicable Law, (d) exclude (i) any income Tax liabilities resulting from actions taken by MetalCo or its Affiliates (including following the Closing, the Acquired Companies) on the Closing Date after the Closing outside the ordinary course of business (unless required or expressly permitted by any Transaction Document or required by applicable Law) and (ii) any income Taxes resulting from any Tax election made by MetalCo for the Acquired Company after the Closing that is effective on or before the Closing Date, (e) in the case of a Straddle Period, be determined in accordance with Section 7.9(d), (f) be determined solely with respect to income Taxes for an Acquired Company in jurisdictions in which such Acquired Company has historically filed Tax Returns and any other jurisdiction in which any Acquired Company has commenced, expanded, or materially increased business activities since the filing of the most recent applicable Tax Return in respect of income Taxes to the extent such commencement, expansion or material increase gave rise to an income Tax filing for any such Tax period, (g) include any amounts required to be included pursuant to Section 481(a) of the Code (or any analogous or similar provision of applicable Law) on account of any adjustments made during Pre-Closing Tax Periods that will not
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previously have been included in income by any Acquired Company, (h) take into account any estimated income Tax payments (or similar income Tax prepayments) to the extent such estimated income Tax payments would actually offset (but not below zero) liability for income Taxes for the Pre-Closing Tax Period under applicable Law (in each case, determined on an entity-by-entity (unless such entity is consolidated, grouped or affiliated with another Acquired Company), jurisdiction-by-jurisdiction, and particular income Tax type), (i) take into account all Transaction Tax Deductions to the extent deductible at a “more likely than not” or higher level of confidence and (j) include any and all income Taxes arising from or relating to the Reorganization or the German Reorganization.
“Information Security Program” means a written information security program that complies with Privacy Requirements, that when appropriately implemented and maintained would constitute reasonable security procedures and practices appropriate to the nature of the Acquired Companies and Acquired Company Data, and that is at least as stringent as one or more relevant industry standards and that includes: (a) written policies and procedures regarding any machine learning, deep learning, and other artificial intelligence (“AI”) technologies, and Acquired Company Data, and the Processing thereof; (b) administrative, technical and physical safeguards to protect the security, confidentiality, availability, and integrity of any Acquired Company Data owned, controlled, maintained, held, or Processed by the Acquired Companies or Data Processors; (c) disaster recovery, business continuity, incident response, and security plans, procedures and facilities; (d) vendor and Data Processor cybersecurity and privacy risk management program; and (e) protections against Security Incidents, malicious code, and against loss, misuse, unauthorized access to, and disruption of, the Processing of Acquired Company Data, any machine learning, deep learning, and other AI technologies and IT Systems.
“Intellectual Property” means all intellectual property and intellectual property rights in any jurisdiction throughout the world, including the following: (a) patents and applications therefor, including continuations, divisionals, continuations-in-part, and reissues of patent applications; (b) trademarks, service marks, trade names, service names, brand names, trade dress rights, logos, Internet domain names and corporate names, together with the goodwill associated with any of the foregoing, and all applications, registrations and renewals thereof (“Trademarks”); (c) copyrights and registrations and applications therefor and works of authorship; and (d) trade secrets.
“Interim Investors Agreement” means that certain Interim Investors Agreement, dated as of the date of this Agreement, by and among MetalCo, A-VL Holdings and Silgan Holdings and, solely for the limited purposes therein, SHI.
“International Trade Laws and Regulations” means all applicable Sanctions, Export Control Laws, and customs, import and antiboycott Laws.
“IRS” means the United States Internal Revenue Service and, to the extent relevant, the United States Department of Treasury.
“IT Systems” means the hardware, software, firmware, middleware, equipment, electronics, platforms, servers, workstations, routers, hubs, switches, interfaces, data, databases, data communication lines, network and telecommunications equipment, operational technology, ICS/SCADA controls, IoT devices, websites and Internet-related information technology infrastructure, wide area network and other data communications or information technology equipment, owned or leased by or licensed to the Acquired Companies, or used to Process Acquired Company Data.
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“Knowledge of SHI” means the actual knowledge of any of Anthony Allott, Frank W. Hogan, III, Kimberly I. Ulmer, Shawn C. Fabry and Michael Gresl.
“Law” means any applicable foreign, federal, state, provincial, territorial or local law (including common law), statute, code, ordinance, rule, regulation, Order or other enforceable requirement, in each case, promulgated or issued by any Governmental Body.
“Legal Proceeding” means any judicial, administrative, investigative or arbitral actions, suits, claims, actions, cause of actions, litigations, charges, complaints, examinations, hearings, arbitrations, investigations, summons, audits, prosecutions or proceedings (public or private, in law or in equity) by or before a Governmental Body.
“Liabilities” means all debts, liabilities, guarantees, assurances, commitments and obligations of any kind, whether fixed, contingent or absolute, asserted or unasserted, matured or unmatured, liquidated or unliquidated, accrued or not accrued, known or unknown, due or to become due, whenever or however arising (including whether arising out of any Contract or tort based on negligence or strict liability or arising under any Law) and whether or not required by GAAP to be set forth in financial statements (including the footnotes thereto) of any Person.
“Licensed Trademarks” has the meaning set forth in the IP License Agreement.
“Lien” means any lien, encumbrance, encroachment, pledge, mortgage, deed of trust, trust deed, security interest, lease, license, covenant, title or survey defect, right of way, charge, option, right of first refusal or first offer, easement, servitude or other restriction.
“Lookback Date” means January 1, 2024.
“Material Adverse Effect” means any effect, change, event, occurrence, condition, result, state of facts, development or circumstances (any such item, an “Effect”) that (i) individually or in the aggregate with any other Effect, has or would reasonably be expected to have, a material adverse effect on the business, financial condition or results of operations of the Combined Business, taken as a whole, or (ii) would reasonably be expected to prevent, materially impair or materially delay (or has so prevented or materially impaired or materially delayed) the ability of SHI to consummate the Transactions; provided, however, that solely with respect to clause (i), no Effect caused by, resulting or arising from, in connection with or attributable or relating to any of the following, either alone or in any combination, shall constitute, and none of the following shall be taken into account in determining whether there has been or will be, a Material Adverse Effect: (a) any Effect affecting the economy of the United States, generally, including changes in the credit, debt, capital or financial markets (including changes in interest or exchange rates, changes as a result of executive orders or the enforcement of any new tariffs) or the economy of any region or country in which the Combined Business operates or conducts business; (b) any Effect affecting the industries in which the Combined Business operates or conducts business; (c) acts of god, weather, meteorological conditions or climate, natural disasters
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(including hurricanes, storms, tornados, flooding, earthquakes, volcanic eruptions or similar occurrences), public health emergencies, epidemics, pandemics, disease outbreaks, widespread occurrences of infectious disease, federal, state or local shelter-in-place or lockdown orders, global, national or regional political or social actions or conditions, including hostilities, military actions, political instability, acts of terrorism or war or any escalation or material worsening of any such hostilities, military actions, political instability, acts of terrorism or war whether commenced before or after the date hereof or any other extraordinary or unusual event that is outside of the control of the Combined Business (the matters set forth in this clause (c) being referred to as “Emergencies”); (d) any actual or potential sequester, stoppage, shutdown, default or similar event or occurrence by or involving any Governmental Body; (e) any failure, in and of itself, by the Combined Business to meet any internal or published projections, forecasts or revenue or earnings predictions for any period (it being understood that any facts or occurrences giving rise to such failure may be taken into account in determining whether there has been or will be, a Material Adverse Effect (to the extent such facts or occurrences are not otherwise excluded from this definition of Material Adverse Effect)); (f) compliance with the terms of, or the taking of any action required by, this Agreement, the Project Voyage Put Option Agreement or the Project Voyage Purchase Agreement or in connection with the Transactions or the Project Voyage Transactions; (g) the failure of MetalCo to consent (where such consent is unreasonably withheld, conditioned or delayed) to any of the actions contemplated in Section 7.2(b) (or the analogous provision under the Project Voyage Purchase Agreement) following a request for such consent or any action taken at the express written request of MetalCo; (h) the announcement of the execution of this Agreement, the Project Voyage Put Option Agreement or the Project Voyage Purchase Agreement or the pendency of the Transactions or the Project Voyage Transactions, including the effects of the Transactions on relationships with customers, suppliers, Governmental Bodies, employees, or other third-party relationships; (i) any labor strikes, labor stoppages, labor slowdowns, lockouts or labor disputes; (j) any change in Law, accounting requirements or principles or GAAP or interpretation thereof; or (k) any breach by MetalCo of its obligations under this Agreement, the Project Voyage Put Option Agreement or the Project Voyage Purchase Agreement, unless, in the cases of clauses (a)-(d) or (j) above, such effects would reasonably be expected to have a materially disproportionate impact on the financial condition, business or results of operations of the Combined Business, taken as a whole, relative to other affected participants in the industries in which the Combined Business conducts business (in which case, only the incremental disproportionate impact shall be taken into account in determining whether there has been a Material Adverse Effect).
“MetalCo Claim” means any claim against any other Party or any of its Affiliates under this Agreement, including under Article X or a claim for Fraud, relating to (a) any inaccuracy in or breach of any Express Representation, including any claim for Fraud, or (b) any breach of any covenant or agreement contained in this Agreement that by its terms is to be performed in whole or in part after the Closing, in each case of clauses (a) and (b), to the extent relating to the Business or the Acquired Companies
“MetalCo Fundamental Representations” means those representations and warranties set forth in Section 5.1, Section 5.2 and Section 5.6.
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“MetalCo Losses” means the Covered Losses (a) incurred or suffered by MetalCo or any of its Subsidiaries (including the Acquired Companies), or (b) incurred or suffered by SHI or A-VL Holdings by reason of its direct or indirect ownership of Equity Securities of MetalCo.
“MetalCo Subsidiaries” means MetalCo Bidco and each MetalCo Intermediate Holdco.
“MetalCo Units” means the Class A Voting Units of MetalCo, including the MetalCo Units to be issued to A-VL Holdings (or its designated Affiliates) at the Closing pursuant to the A-VL Holdings Investment, the terms of which are set forth in the MetalCo LLC Agreement.
“MIHBV Shares” means all of the issued and outstanding Equity Securities of MIHBV.
“MIHBV Transfer Amount” means an amount in cash equal to the fair market value of the MIHBV Shares at the Closing, as set forth in the MIHBV Valuation Report, which amount, for the avoidance of doubt, shall not be subject to adjustment pursuant to Section 2.4 or Section 2.5.
“Multiemployer Plan” means a multiemployer plan (as defined in Section 3(37) or 4001(a)(3) of ERISA).
“Non-U.S. Companies” means (i) Silgan Holdings Austria GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung) organized under the laws of Austria, (ii) Silgan Europe Holdings BV, a private limited company (besloten vennootschap) organized under the laws of the Netherlands, (iii) Silgan Closures GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung) organized under the laws of Germany, (iv) Silgan White Cap Holdings Spain, S.L., a private limited company (sociedad limitada) organized under the laws of Spain, (v) Silgan White Cap Holdings Cyprus Limited, a private company limited by shares organized under the laws of Cyprus, (vi) Silgan White Cap South East Asia, Inc., a corporation organized under the laws of the Philippines, (vii) SWC Holdings (Mauritius) Ltd, a private company limited by shares organized under the laws of Mauritius, (viii) Silgan White Cap France S.A.S., a simplified joint stock company (société par actions simplifiée) organized under the laws of France, (ix) Silgan White Cap GmbH, a limited liability company (Gesellschaft mit beschränkter Haftung) organized under the laws of Austria, (x) Silgan White Cap Belgium NV, a public limited liability company (naamloze vennootschap) organized under the laws of Belgium, (xi) Silgan White Cap do Brasil Ltda., a limited liability company (sociedade limitada) organized under the laws of Brazil, (xii) Silgan White Cap Polska Sp. z.o.o, a private limited liability company (spółka z ograniczoną odpowiedzialnością) organized under the laws of Poland and (xiii) Silgan White Cap Italia S.r.l., a limited liability company (Società a responsabilità limitata) organized under the laws of Italy.
“Notarial Transfer Deed” means the notarial instrument (notariële akte) in which SIHBV transfers (levert) the MIHBV Shares to MetalCo, MetalCo accepts (aanvaardt) such transfer (levering) and MIHBV acknowledges (erkent) such transfer (levering), which deed is to be executed in front of the Notary.
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“Notary” means any civil-law notary (notaris) of Linklaters LLP, or such civil-law notary’s deputy or successor.
“Order” means any order, injunction, judgment, decree (including any consent decree or similar agreed order or judgment), ruling, writ, stipulation, assessment, determination or award issued or entered by a Governmental Body.
“Ordinary Course of Business” means the ordinary and usual course of day-to-day operations of the Acquired Companies consistent with past practice, taken as a whole, during the 12-month period prior to the date hereof.
“Organizational Documents” means the charter, memorandum, certificate of incorporation, certificate of formation, limited liability company agreement, stockholders agreement, partnership agreement, articles of incorporation, articles of association, bylaws or other similar document of a Person, as may be amended, restated or otherwise modified from time to time.
“Owned IP” means all Intellectual Property owned by or purported to be owned by the Acquired Companies.
“Ownership Percentage” means, with respect to SHI or A-VL Holdings as of any date, the percentage of the total issued and outstanding MetalCo Units held, directly or indirectly, by SHI or A-VL Holdings, as applicable, as of that date.
“Permits” means any approvals, authorizations, consents, licenses, permits, certificates, registrations, waivers, or exemptions issued by or required of a Governmental Body.
“Permitted Liens” means (a) all defects, exceptions, restrictions, easements, rights of way and encumbrances disclosed in current policies of title insurance that have been delivered to MetalCo at least five (5) days prior to the date of this Agreement; (b) Liens incurred in the Ordinary Course of Business and on a basis consistent with past practice securing liabilities which are not yet delinquent and are reflected or reserved against in the Financial Statements prepared in accordance with GAAP; (c) Liens for Taxes, assessments or other governmental charges not yet delinquent, the amount or validity of which is being contested in good faith by appropriate proceedings and for which adequate reserves have been established and reflected in the Financial Statements prepared in accordance with GAAP; (d) landlords’, mechanics’, carriers’, workers’, repairers’ and similar Liens arising or incurred on a basis consistent with past practice and in the Ordinary Course of Business for amounts which are not yet delinquent, the amount or validity of which is being contested in good faith by appropriate proceedings and for which adequate reserves have been established and reflected in the Financial Statements prepared in accordance with GAAP; (e) easements, rights of way, zoning, building code, entitlement and other land use and environmental Laws that do not materially reduce the value of or adversely impact the current use of the real property; (f) title of a lessor under a capital or operating lease, and leases, subleases, and similar transactions in the Ordinary Course of Business; (g) non-exclusive licenses to Intellectual Property granted in the Ordinary Course of Business; (h) Liens that will be released in connection with or prior to the Closing; (i) Liens arising under any Assumed Indebtedness; and (j) Liens set forth on Schedule 1.1(d) of the Silgan Disclosure Schedules.
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“Person” means any individual, corporation, partnership, limited liability company, firm, joint venture, association, joint-stock company, trust, unincorporated organization, Governmental Body or other entity.
“Personal Information” means all information that identifies an individual person, in addition to any definition for “personal information” or any similar term provided by Privacy Laws (e.g., “personal data”, “personally identifiable information” or “PII”).
“PoA” means a written power of attorney, duly signed (and legalized, if so requested by the Notary, with such legalization confirmed by apostille (if required)), including (with respect to any non-Dutch entity) a confirmation of authority (or other satisfactory evidence of authority, in the Notary’s sole discretion), granted to each (candidate) civil-law notary and notarial employee of the Notary’s firm.
“Pre-Closing Tax Period” means any taxable period ending on or before the Closing Date and, in the case of any Straddle Period, the portion of such Straddle Period ending on (and including) the Closing Date.
“Privacy Laws” means all applicable Laws relating to the Processing of Personal Information by the Acquired Companies, including, but not limited to: (a) the CAN-SPAM Act of 2003, 15 U.S.C. § 7701, et seq.; the Telephone Consumer Protection Act, 47 U.S.C. § 227, et seq.; HIPAA; 20 U.S.C. § 1232g, et seq.; the Children’s Online Privacy Protection Act 15 U.S.C. § 6501, et seq.; the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq.; the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-22; the Stored Communications Act, 18 U.S.C. §§ 2701-12, et seq.; the California Consumer Privacy Act, Cal. Civ. Code § 1798.100, et seq.; the California Customer Records Act, Cal. Civ. Code §§ 1798.80 to 84; California Online Privacy Protection Act, Cal. Bus. & Prof. Code § 22575, et seq.; the Illinois Biometric Information Privacy Act, 740 I.L.C.S. § 14, et seq.; the Virginia Consumer Data Protection Act, Va. Code Ann. § 59.1-575, et seq.; the GDPR; the UK Data Protection Act 2018 as amended by the UK Data (Use and Access) Act 2025; the UK Privacy and Electronic Communications (EC Directive) Regulations 2003; the EU e-Privacy Directive 2002/58/EC as implemented by countries within the European Economic Area; U.S. state and federal Laws that prohibit unfair or deceptive acts and practices, such as the Federal Trade Commission Act, 15 U.S.C. § 45, et seq.; and all other Laws and binding regulations relating to data protection, information security, cybercrime, Security Incident notification, social security number protection, outbound communications or electronic marketing, use of electronic data and privacy matters (including online privacy) in any applicable jurisdictions.
“Privacy Requirements” means all Privacy Laws, Acquired Company Privacy Policies, industry requirements, and Contracts relating to the (a) privacy, confidentiality, integrity, availability, collection, use, access, Processing, protection, Security Incident notification, deletion or disclosure of any Personal Information by the Acquired Companies, (b) cybersecurity (including secure software development), and (c) AI, automated decision making or machine learning technologies including, without limitation, the EU Artificial Intelligence Act 2024/1689.
“Processing”, “Process” or “Processed” means any operation or set of operations performed on Acquired Company Data or IT Systems, whether or not by automated means, including but not limited to receipt, collection, compilation, use, storage, combination, sharing, safeguarding, disposal, erasure, destruction, disclosure or transfer.
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“Project Voyage Documents” means the Project Voyage Put Option Agreement, the Project Voyage Purchase Agreement and each other agreement, document, instrument or certificate entered into or delivered pursuant to, or in connection with, either of them (including any limited guarantee in favor of Trivium Packaging B.V.), other than any agreement expressly listed in the definition of “Transaction Documents”.
“Real Property” means collectively, the Owned Real Property and the Leased Real Property.
“Related Claims” means any claims, causes of action or Legal Proceedings of any kind or any nature (whether at law or in equity, based upon contract, tort, statute, based upon any theory that seeks to impose liability of any Party against its owners or Affiliates or otherwise) that may be based upon, arise out of or in connection with the Transactions, this Agreement or any Transaction Document or the negotiation, execution, performance, breach, interpretation, construction, validity or enforcement of this Agreement or any Transaction Document (including any claim, cause of action or Legal Proceeding based upon, arising out of or in connection with any representation or warranty made or alleged to be made in or in connection with, or as an inducement to enter into, this Agreement or any Transaction Document).
“Related Person” means, with respect to any Person, such Person’s Affiliates, and its and its Affiliates’ former, current or future stockholders, equityholders, partners, officers, managers, directors and employees.
“Release” means any depositing, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, abandoning, migrating, disposing or other release of any Hazardous Material in, onto or through the environment, including the abandonment or discarding of any Hazardous Material in barrels, drums, or other closed receptacles.
“Relief” means: any relief, loss, allowance, exemption, set-off, deduction or credit in computing Tax, or profits, income, or gains for Tax purposes and any repayment or refund of, or in respect of, Tax.
“Remaining Share of SCF Offset Amount” means an amount equal to (i) the SCF Offset Amount, multiplied by (ii) 25.5%.
“Reorganization” means the internal reorganization of SHI and its Subsidiaries pursuant to which the Business is separated from the Retained Business and the Acquired Companies are contributed to and held by MetalCo (including the U.S. Company Dropdown and the MIHBV-MetalCo Bidco Transfer), including (a) each of the steps set forth in the Reorganization Plan and the Restructuring Agreement and (b) all Separation Activities to be taken by SHI or any of its Affiliates, in each case, whether taken prior to, at or following the Closing, and whether or not expressly set forth in the Reorganization Plan.
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“Reorganization Costs” means, without duplication, all costs and expenses, whether paid or unpaid, whether arising prior to, at or following the Closing, incurred in connection with carrying out the Reorganization or the German Reorganization, including any Transfer Taxes, but excluding (a) any income Taxes (which are governed by Section 10.2(c) and the definition of Income Tax Liability Amount) and (b) any fees and expenses of Linklaters Netherlands and Deloitte incurred in connection with the Reorganization or German Reorganization.
“Reorganization Costs Cap” means $7,000,000.
“Representatives” means, with respect to any Person, such Person’s equityholders, partners, members, officers, managers, directors, employees, consultants, agents, attorneys, accountants, advisors, financing sources and other representatives.
“Required Information” means (a) the Financial Statements and (b) the financial statements required under clauses (a)(i) and (b)(i) of paragraph 7 of Exhibit C of the Debt Commitment Letter.
“Restructuring Projects” means any (a) shutdown, closure (whether temporary or permanent), consolidation or relocation of, or cessation or material reduction of operations at, any plant, manufacturing facility or other facility of any Acquired Company, (b) reduction in force, mass layoff, collective dismissal or redundancy, social plan, furlough, early retirement or voluntary separation program or other similar workforce action affecting employees of any Acquired Company, or (c) other restructuring, reorganization, footprint rationalization or similar plan, program or project of any Acquired Company, in each case of clauses (a) through (c), that (i) has been announced, adopted, approved, commenced or implemented since the Lookback Date through the date of this Agreement, (ii) is being implemented as of the date of this Agreement or (iii) as of the date of this Agreement, has been (A) presented to, or approved by, the board of directors of SHI (or any committee thereof) or (B) the subject of any information, consultation or negotiation process with any works council, economic and social committee, labor union, association or other employee representative body that has been initiated by or on behalf of any Acquired Company.
“Retained Business” means all business currently, previously or hereafter conducted by SHI or any of its Affiliates, other than the Business.
“Retained Companies” means, collectively, SHI and its Subsidiaries (other than the Acquired Companies).
“Retained IP” means, collectively, (a) the Silgan Marks and (b) any Intellectual Property owned by, purported to be owned by or licensed by SHI and its Affiliates (other than the Acquired Companies) which is primarily used by or for the Retained Business, excluding the Intellectual Property set forth on Schedule 2.3(a)(vi) of the Silgan Disclosure Schedules.
“Sample Working Capital Schedule” means the illustrative calculation of Working Capital set forth on Exhibit A to this Agreement.
“Sanctioned Jurisdiction” means a country or territory that is itself the subject or target of comprehensive, country-wide or territory-wide Sanctions (as of the date of this Agreement, Cuba, Iran, North Korea, the Crimea, Kherson, and Zaporizhzhia regions of Ukraine, the so-called Donetsk People’s Republic region of Ukraine, and the so-called Luhansk People’s Republic region of Ukraine).
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“Sanctioned Party” means any Person that is: (a) listed on any Sanctions List; (b) located in, ordinarily resident in, headquartered in or incorporated or organized under the laws of, a Sanctioned Jurisdiction; (c) a government, agency or instrumentality of a Sanctioned Jurisdiction; (d) directly or indirectly owned or, to the extent applicable under relevant Sanctions and Export Control Laws, controlled by (as such terms are defined and interpreted under the relevant Sanctions and Export Control Laws), or otherwise acting on behalf or at the direction of, any Persons described in (a)-(c); or (e) otherwise a target of Sanctions or Export Control Laws.
“Sanctions” means any economic, financial or trade sanctions Laws, embargoes or restrictive measures administered, enacted or enforced by the United States, the European Union and each of its member states, the United Kingdom, the United Nations Security Council and any other applicable Governmental Body that administers, enacts or enforces Sanctions.
“Sanctions List” means the Specially Designated Nationals and Blocked Persons List and Consolidated Sanctions List maintained by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the Denied Persons List, Entity List and Military End-User List maintained by the U.S. Department of Commerce’s Bureau of Industry and Security, the Consolidated List of Persons, Groups and Entities Subject to EU Financial Sanctions maintained by the European Commission, the United Kingdom Sanctions List maintained by the Foreign, Commonwealth and Development Office, the United Nations Security Council Consolidated List and any other list of Persons with whom transactions or dealings are restricted or prohibited under the Laws of the United States, the European Union and each of its member states, the United Kingdom or any other applicable jurisdiction (in all cases as supplemented, amended or substituted from time to time).
“SCF Baseline” means $303,500,000.
“SCF Offset Amount” means an amount equal to the greater of (i) $0 and (ii) (a) the SCF Baseline, minus (b) the SCF Receivables.
“SCF Programs” means, collectively, those arrangements with Material Customers set forth on Schedule 1.1(e)(i) of the Silgan Disclosure Schedules.
“SCF Receivables” means, as of the Calculation Time, the aggregate amount of accounts receivables on the balance sheet of the Acquired Companies in respect of the Material Customers set forth on Schedule 1.1(e)(ii) of the Silgan Disclosure Schedules, determined in accordance with GAAP.
“Security Incident” means (an event or series of events leading to) any unauthorized Processing of Acquired Company Data, any unauthorized access, security compromise or disruption to the Acquired Companies’ IT Systems or other operational disruption to, adverse impact on, or compromise of the Acquired Companies’ business, or any “personal data breach” or any incident that may require notification to any Person, Governmental Body or any other entity under Privacy Requirements.
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“Separation Activity” means any activity or measure conducted that is directly related to (a) the identification of the assets and liabilities related to the Business and any preparation required to transfer such assets or liabilities to the Acquired Companies; (b) preparation and execution of all documents required by the Reorganization; (c) the transfer of the assets and liabilities related to the Retained Business from the Acquired Companies to Affiliates of SHI; (d) the preparations required for SHI and its Affiliates and/or the Acquired Companies to be able to provide the services under the Transition Services Agreement; (e) all actions required to form any entities and/or enter into or amend any Organizational Documents; (f) the preparations required for SHI and its Affiliates and/or the Acquired Companies to be able to receive the services to be provided under the Transition Services Agreement, including seeking and obtaining any consents, licenses or approvals of third parties required to be obtained by or on behalf of MetalCo or any Acquired Company, whether as recipient or as provider of such services, for the provision or receipt of such services; (g) the preparations reasonably necessary for the Acquired Companies to be able to receive or assume any assets or liabilities in respect of the Business; (h) the transfer of employment (whether by operation of law or otherwise), including the transfer of any individual described in the definition of Acquired Company Employee to an Acquired Company or to SHI or one of its Affiliates (other than an Acquired Company), as applicable; (i) the termination of intercompany arrangements and balances pursuant to Section 7.16; and (j) any other activity or measure required to effect the Reorganization.
“Shared Contract” means any Contract to which SHI or any of its Subsidiaries is a party with any non-Affiliated third party and which benefits, is in respect of, or otherwise relates to, both the Business (or any Acquired Company) and the Retained Business (or SHI or any of its Subsidiaries other than the Acquired Companies), other than any Benefit Plan or any insurance policy.
“Silgan Aggregate Amount” means $2,262,500,000.
“Silgan Debt Documents” means all Contracts governing indebtedness for borrowed money of SHI and its Affiliates (except for such Contracts that are exclusively in respect of the Acquired Companies or are in respect of trade payables arising in the ordinary course of business), including the Silgan Debt Facilities.
“Silgan Debt Facilities” means, collectively, (a) the Amended & Restated Credit Agreement, dated as of March 24, 2017 (as amended, restated, supplemented or otherwise modified from time to time, the “Silgan Credit Agreement”), among SHI, the other borrowers party thereto, the other guarantors party thereto, and Wells Fargo Bank, National Association, as administrative agent, (b) the Indenture, dated November 12, 2019, among SHI and U.S. Bank National Association, as trustee (as amended, restated, supplemented or otherwise modified from time to time), (c) the Indenture, dated as of September 12, 2025, among SHI, U.S. Bank National Association, as trustee and the other agents party thereto (as amended, restated, supplemented or otherwise modified from time to time) and (d) the Indenture, dated as of February 26, 2020, among SHI, U.S. Bank National Association, as trustee and the other agents party thereto (as amended, restated, supplemented or otherwise modified from time to time).
“Silgan Debt Obligations” means (a) any guarantee by an Acquired Company and (b) any Lien encumbering the Business or the assets of the Acquired Companies and securing the repayment, in each case of clauses (a) and (b), of the loans made under, the notes issued pursuant to and/or any obligations under the Silgan Debt Documents.
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“Silgan Distribution Amount” means an amount equal to (a) the Silgan Aggregate Amount, minus (b) if the actions set forth in Section 2.1(e) are consummated, the SHI Debt Amount.
“Silgan Fundamental Representations” means those representations and warranties set forth in Section 3.1, Section 3.2, Section 3.3(a), Section 3.4(b), Section 3.6, Section 4.1, Section 4.2, Section 4.3(a)(i), Section 4.4(a), Section 4.5(a) (first sentence only), Section 4.5(b) (first sentence only) and Section 4.22.
“Silgan Marks” means any and all Trademarks owned by SHI or any of its Affiliates (other than the Acquired Companies) containing or consisting of the “Silgan” name or logo, or any confusingly similar variations, translations, transliterations, abbreviations or derivatives thereof, whether used alone or in combination with other words or logos.
“Silgan Share of SCF Offset Amount” means an amount equal to (i) the SCF Offset Amount, multiplied by (ii) 74.5%.
“Silgan Transaction Expenses” means, solely to the extent unpaid as of the Closing and without duplication, (a) all sale bonuses, change in control, transaction, retention, success, equity or equity-based awards (including phantom equity and any SHI RSUs) or other incentive compensation or similar bonuses, payments or benefits, in each case, that are or may become payable by any Acquired Company (or any other Person that are payable or reimbursable by any Acquired Company) to any current or former director, officer, employee, or other service provider of any Acquired Company upon, by reason of, or in connection with, the consummation of the Transactions, whether alone or in combination with any other event or condition (including any termination of employment or service, or any other event, occurring at or following the Closing), and whether payable prior to, at or following the Closing, including for the avoidance of doubt all severance payments or benefits payable by any Acquired Company (or any other Person that are payable or reimbursable by any Acquired Company) to (i) any former director, officer, employee, or other service provider of any Acquired Company (or an employee who has received or provided notice of his or her termination of employment on or prior to the Closing) or (ii) any current director, officer, employee, or other service provider of any Acquired Company by reason of, or in connection with, the consummation of the transactions contemplated hereby, (b) all amounts payable by any Acquired Company to any current or former director, officer, employee, or other service provider of any Acquired Company to make whole, indemnify, or gross-up such individual in connection with the imposition of Taxes under Section 4999 of the Code, (c) the employer’s portion of any social security, Medicare, unemployment or other employment, withholding or other payroll Taxes and employer contributions to retirement plans associated with any bonus or payment described in the foregoing clauses (a) and (b), or (d) all Reorganization Costs in excess of the Reorganization Costs Cap. For the avoidance of doubt, “Silgan Transaction Expenses” shall exclude all fees, costs, charges, expenses and obligations that (i) are incurred, payable or subject to reimbursement by SHI or its Affiliates (other than the Acquired Companies), on the one hand, or A-VL Holdings or its Affiliates, on the other hand (including pursuant to the Cost Sharing Agreement or the Interim Investors Agreement), (ii) are incurred, payable or subject to
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reimbursement by MetalCo or any of its respective Affiliates (including pursuant to the Cost Sharing Agreement or the Interim Investors Agreement), including the MetalCo Expenses, (iii) will be paid in accordance with the MetalCo LLC Agreement, (iv) are incurred by the Acquired Companies in connection with the Debt Financing, (v) are accrued in the Closing Working Capital or (vi) are included in Debt.
“Straddle Period” means any taxable period that begins on or before the Closing Date and ends after the Closing Date.
“Subsidiary” means, with respect to any Person, any corporation of which a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof, or any partnership, limited liability company, association or other business entity (other than a corporation) of which a majority of the partnership, limited liability company or other similar ownership interest is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof. For purposes of this definition, a Person is deemed to have a majority ownership interest in a partnership, limited liability company, association or other business entity (other than a corporation) if such Person is allocated a majority of the gains or losses of such partnership, limited liability company, association or other business entity or is or controls the managing director, managing member or general partner of such partnership, limited liability company, association or other business entity.
“Target Working Capital” means $575,500,000.
“Tax” or “Taxes” means: (a) all federal, state, local, foreign and other income, gross receipts, capital, sales, use, production, ad valorem, value added, transfer, franchise, registration, profits, inventory, capital stock, license, lease, service, service use, withholding, payroll, employment, social security, unemployment, estimated, excise, severance, environmental, stamp, occupation, premium, property (real or personal), real property gains, windfall profits, customs, duties and any other taxes, fees, imposts, levies, assessments or charges of any kind whatsoever in the nature of (or similar to) taxes, whether disputed or not; and (b) any liability for amounts described in clause (a) of this definition as a result of being or having been a member of any group of corporations that files, will file, or has filed Tax Returns on a combined, consolidated, unitary or similar basis, as a result of any obligation under any agreement or arrangement, or as a result of being liable for another Person’s Taxes as a transferee or successor, by Contract or otherwise required by applicable Law, together with, in the case of each of clauses (a) and (b), any interest, penalties, fines and additions with respect thereto and any interest in respect of such additions or penalties.
“Tax Proceeding” means any audit, examination, contest, litigation or other Legal Proceeding with or against any Taxing Authority (including any mutual agreement procedure or competent authority proceeding).
“Tax Return” means any return, election, declaration, report, claim for refund, information return or statement or other document filed or required to be filed with any Taxing Authority with respect to any Taxes, including any schedule or attachment thereto and any amendment thereof, and including any amended return or declaration of estimated Tax and, where permitted or required, any combined, consolidated or unitary returns for any group of entities that includes the Acquired Companies.
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“Taxing Authority” means the IRS and any other Governmental Body exercising any authority to impose, assess or collect any Tax or any other authority exercising Tax regulatory authority.
“Transaction Accounting Principles” means the accounting principles, practices, methodologies and policies set forth on Exhibit B.
“Transaction Documents” means this Agreement, the Cost Sharing Agreement, the Interim Investors Agreement, the MetalCo LLC Agreement, the Transition Services Agreement, the IP License Agreement, the IP Assignment Agreement, the Restructuring Agreement, the Equity Commitment Letter, the Limited Guarantee, the Debt Commitment Letter, the Restrictive Covenant Agreement, the Joint Procurement Agreement and each other agreement, document, instrument or certificate entered into or delivered by the Parties in connection with the Transactions, including the agreements and documents to be delivered pursuant to Section 2.3; provided, that, none of the Project Voyage Documents shall constitute a Transaction Document.
“Transaction Tax Deductions” means, without duplication, and only to the extent properly allocable to a Pre-Closing Tax Period (determined consistently with Section 7.9(d) and, as applicable, Treasury Regulations Section 1.1502-76(b)), the aggregate amount of (i) any payments due to current or former employees, consultants, officers or directors of the Acquired Companies as a result of or in connection with the consummation of the transactions contemplated by the Transaction Documents and either paid by the Acquired Companies at or prior to the Closing or accrued as a liability of the Acquired Companies as of the Closing, (ii) any prepayment penalties or premiums paid by any Acquired Company at or prior to the Closing on Debt of the Acquired Companies, (iii) the amount of all capitalized and unamortized financing costs of the Acquired Companies existing immediately prior to the Closing, but only to the extent deductible by the Acquired Companies as a result of the retirement or satisfaction of the related Debt at or prior to the Closing, (iv) to the extent deductible for applicable income Tax purposes, the Silgan Transaction Expenses, and (v) to the extent deductible for applicable income Tax purposes, any applicable expenses or other amounts not otherwise described in clauses (i), (ii), (iii) or (iv) of this definition that are paid by the Acquired Companies (and not reimbursed or reimbursable by SHI or any of its Affiliates (other than the Acquired Companies)) in connection with the transactions contemplated by the Transaction Documents. For purposes of the foregoing, the Parties agree that an amount equal to seventy percent (70%) of any success-based fees paid by the Acquired Companies in connection with the transactions contemplated by this Agreement shall be treated as deductible in accordance with Rev. Proc. 2011-29 for purposes of this definition.
“Transactions” means the transactions contemplated by the Transaction Documents.
“Transfer Regulations” mean the Transfer of Undertakings (Protection of Employment) Regulations 2006, as amended, or equivalent or similar applicable Laws.
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“Transfer Taxes” means any real property transfer, stamp, documentary, recording, registration, conveyance, stock transfer, intangible property transfer, personal property transfer, gross receipts, registration, duty, securities transactions or similar fees or Taxes or governmental charges (together with any interest or penalty, addition to Tax or additional amount imposed) as levied by any Taxing Authority or other Governmental Body in connection with the Transactions (including the German Reorganization and the Reorganization, which, for the avoidance of doubt, includes any such Taxes arising from or relating to any transfer following the Closing as set forth in the Reorganization Plan), including any payments made in lieu of any such Taxes or governmental charges that become payable in connection with the Transactions.
“Trivium Business” means the business of Trivium Packaging B.V. and its Subsidiaries, taken as a whole.
“VAT” means (a) any Tax imposed by the United Kingdom Value Added Tax Act 1994; (b) any Tax imposed in compliance with the council directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112) and legislation and regulations supplemental thereto; and (c) any other Tax of a similar nature (including sales tax, use tax, consumption tax and goods and services tax), whether imposed in the United Kingdom or in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in (a) or (b), or elsewhere.
“Willful Breach” means a deliberate act or a deliberate failure to act, which act or failure to act constitutes in and of itself a material breach of any covenant set forth in this Agreement, with actual knowledge that such act or failure to act would constitute a material breach of this Agreement.
“Working Capital” means, as of any time, the net working capital of the Acquired Companies as of such time, calculated by subtracting (a) the sum of the amounts as of such time for the current liability line items shown on the illustrative calculation of Working Capital on the Sample Working Capital Schedule, from (b) the sum of the amounts as of such time for the current asset line items shown on the illustrative calculation of Working Capital on the Sample Working Capital Schedule, in each case determined in accordance with the Transaction Accounting Principles; provided that in no event shall Working Capital include (i) any amount included within the definition of Cash Amounts, Silgan Transaction Expenses or Debt, (ii) any deferred Tax assets or deferred Tax liabilities or (iii) any U.S. federal income Tax assets or U.S. federal income Tax liabilities. In determining the amount of income Tax assets or income Tax liabilities included in Working Capital (other than U.S. federal income Tax assets or U.S. federal income Tax liabilities), the principles under the definition of “Income Tax Liability Amount” shall be utilized.
“Working Capital Adjustment Amount” means (a) the Closing Working Capital minus (b) the Target Working Capital (which resulting amount may be a positive or negative number).
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1.2 Terms Defined Elsewhere in this Agreement. For purposes of this Agreement, the following terms have meanings set forth in the sections indicated:
| Term |
Section | |
| A-VL Holdings | Preamble | |
| A-VL Holdings Contribution | 2.1(f) | |
| A-VL Holdings Documents | 6.2 | |
| A-VL Holdings Investment | 2.1(f) | |
| Actions on Credit Enhancements | 7.17(a) | |
| Actions on Silgan Credit Enhancements | 7.17(b) | |
| Agreement | Preamble | |
| AI | 1.1 (in definition of Information Security Program) | |
| Anti-Corruption Laws | 4.18(g) | |
| Balance Sheet Date | 4.6(a) | |
| Closing | 2.2 | |
| Closing Date | 2.2 | |
| Closing Statement | 2.4 | |
| Closing Transactions | 2.1 | |
| Company Documents | 4.2 | |
| Company Retirement Plan | 4.14(b) | |
| Company Shares | 4.4(a) | |
| Continuing Scheduled Credit Enhancements | 7.17(a) | |
| Continuing Scheduled Silgan Credit Enhancements | 7.17(b) | |
| Continuing Silgan Policies | 7.18(g) | |
| Credit Enhancements | 7.17(a) | |
| Cyber Insurance Policy | 7.18(f) | |
| Cyber Tail Policy | 7.18(e) | |
| Damages Cap | 9.2 | |
| Data Room | 1.3(a)(xiii) | |
| Debt Assumption | 7.8(j) | |
| Debt Commitment Letter | 5.7(a) | |
| Debt Financing | 5.7(a) | |
| Debt Financing Commitments | 5.7(a) | |
| Default | 3.7(c) | |
| Designated Contacts | 7.1(a) | |
| Dispute Notice | 2.5(b) | |
| Dispute Resolution Period | 2.5(b) | |
| Effect | 1.1 (in definition of Material Adverse Effect) | |
| Emergencies | 1.1 (in definition of Material Adverse Effect) | |
| Equitable Exceptions | 3.2 | |
| Equity Commitment Letter | Recitals | |
| Equity Financing | Recitals | |
| Equity Financing Commitment | Recitals | |
| Equity Financing Source | Recitals | |
| Estimated Aggregate Adjustment Amount | 2.4 |
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| Term |
Section | |
| Estimated Closing Cash Amounts | 2.4 | |
| Estimated Closing Debt | 2.4 | |
| Estimated Closing Silgan Transaction Expenses | 2.4 | |
| Estimated Remaining Share of SCF Offset Amount | 2.4 | |
| Estimated SCF Offset Amount | 2.4 | |
| Estimated SCF Receivables | 2.4 | |
| Estimated Silgan Share of SCF Offset Amount | 2.4 | |
| Estimated Working Capital Adjustment Amount | 2.4 | |
| EU GDPR | 1.1 (in definition of GDPR) | |
| Event of Default | 3.7(c) | |
| Export Control Laws | 4.18(f) | |
| Final Aggregate Adjustment Amount | 2.5(d) | |
| Final Remaining Share of SCF Offset Amount | Recitals | |
| Final Silgan Share of SCF Offset Amount | 2.5(d) | |
| Financial Statements | 4.6(a) | |
| Financing | 5.7(a) | |
| Foreign Benefit Plan | 4.14(k) | |
| Fund IX | Recitals | |
| Group Relief | 4.9(s) | |
| Guarantor | Recitals | |
| ICE | 4.15(f) | |
| Indemnified Party | 10.5(a) | |
| Indemnifying Party | 10.5(a) | |
| Independent Accounting Firm | 2.5(b) | |
| Initial Termination Date | 9.1(b)(i) | |
| Insurance Policies | 4.20 | |
| Intended Tax Treatment | 7.9(e) | |
| Interim Financial Statements | 4.6(a) | |
| IP Assignment Agreement | 2.3(a)(vi) | |
| IP License Agreement | 2.3(a)(v) | |
| Jenner | 11.9(a) | |
| Joint Procurement Agreement | 7.28 | |
| Joint Procurement Term Sheet | 7.28 | |
| Leased Real Property | 4.10(a) | |
| Limited Guarantee | Recitals | |
| Local Transfer Document | 7.22(b) | |
| Management Financial Statements | 4.6(a) | |
| Material Contracts | 4.13(a) | |
| Material Customers | 4.24(a) | |
| Material Vendors | 4.24(a) |
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| Term |
Section | |
| MetalCo | Preamble | |
| MetalCo Bidco | Recitals | |
| MetalCo Documents | 5.2 | |
| MetalCo Expenses | 11.1 | |
| MetalCo Indemnified Parties | 10.2 | |
| MetalCo Intermediate Holdco | Recitals | |
| MetalCo LLC Agreement | Recitals | |
| MetalCo Released Parties | 11.12(b) | |
| MetalCo Releasing Parties | 11.12(a) | |
| MIHBV | Recitals | |
| MIHBV-MetalCo Bidco Transfer | 2.1(c) | |
| MIHBV Transfer Note | 2.1(c) | |
| MIHBV Valuation Report | 7.25 | |
| Non-Parties | 11.10 | |
| Owned Real Property | 4.10(b) | |
| Parties | Preamble | |
| Party | Preamble | |
| Payoff Letters | 2.3(a)(ii) | |
| Phase I Reports | 7.26 | |
| Post-Closing Statement | 2.5(a) | |
| Pre-Closing Indemnified Taxes | 10.2(c) | |
| Privileged Communications | 11.9(b) | |
| Project Voyage Purchase Agreement | Recitals | |
| Project Voyage Put Option Agreement | Recitals | |
| Project Voyage Transactions | 7.3(b) | |
| RBI | 1.1 (in definition of Cash Amounts) | |
| Real Property Lease | 4.10(a) | |
| Real Property Leases | 4.10(a) | |
| Related Party Arrangement | 4.21 | |
| Reorganization Plan | 7.22(a) | |
| Restrictive Covenant Agreement | 2.3(a)(vii) | |
| Restructuring Agreement | 7.22(a) | |
| Restructuring Documents | 7.22(a) | |
| Review Period | 2.5(b) | |
| Scheduled Credit Enhancements | 7.17(a) | |
| Scheduled Silgan Credit Enhancements | 7.17(b) | |
| Shared Contract Separation | 7.21(a) | |
| SHI | Preamble | |
| SHI Debt Amount | 7.8(j) | |
| SHI RSU | 3.3(b) | |
| SIHBV | Recitals | |
| Silgan Containers | 1.1 (in definition of Companies) | |
| Silgan Credit Agreement | 1.1 (in definition of Silgan Debt Facilities) | |
| Silgan Credit Enhancements | 7.17(b) | |
| Silgan Disclosure Schedules | Article III |
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| Term |
Section | |
| Silgan Group | 11.9(a) | |
| Silgan Holdings | Recitals | |
| Silgan Indemnified Parties | 10.3 | |
| Silgan Released Parties | 11.12(a) | |
| Silgan Releasing Parties | 11.12(b) | |
| Silgan SCF Shortfall Amount | 2.1(g) | |
| Silgan Tax Contest | 7.9(f) | |
| Solvent | 5.8(b) | |
| Specified Documents | 11.3(a) | |
| Specified Matter | 10.2(e) | |
| Steering Committee | 7.1(b) | |
| Stranded Shared Contract | 7.21(b) | |
| Surviving Intercompany Accounts | 7.16(a) | |
| Tax Refunds | 7.9(j) | |
| Termination Date | 9.1(b)(i) | |
| Third Party Claim | 10.5(a) | |
| Third Party SHI Debt | 7.8(j) | |
| Title Policies | 7.14 | |
| Trademarks | 1.1 (in definition of Intellectual Property) | |
| Transaction Personal Information | 7.12 | |
| Transition End Date | 7.18(g) | |
| Transition Services Agreement | 2.3(a)(iv) | |
| U.S. Companies | 1.1 (in definition of Companies) | |
| U.S. Company Dropdown | 2.1(b) | |
| U.S. Leased Real Property | 4.10(a) | |
| US Pension Plan | 4.14(d) | |
| Valuation Firm | 7.25 | |
| Waiving Parties | 11.9(a) | |
| WARN Act | 4.15(d) |
1.3 Other Definitional and Interpretive Matters.
(a) Unless otherwise expressly provided, for purposes of this Agreement, the following rules of interpretation shall apply:
(i) Calculation of Time Period. When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded. If the last day of such period is a non-Business Day, the period in question shall end at 5:00 PM Eastern Time on the next succeeding Business Day; provided that the foregoing shall not apply to (A) any notices required to be delivered by a specific date under this Agreement or (B) any notices delivered by email in accordance with the terms of this Agreement. The word “day” shall mean “calendar day” unless “Business Day” is expressly identified. The terms “year” and “years” shall mean and refer to calendar year(s).
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(ii) Dollars. Any reference in this Agreement to “$” shall mean U.S. dollars. The specification of any dollar amount in the representations and warranties or otherwise in this Agreement or in the Exhibits or the Silgan Disclosure Schedules is not intended and shall not be deemed to be an admission or acknowledgment of the materiality of such amounts or items, nor shall the same be used in any dispute or controversy between the Parties to determine whether any obligation, item or matter (whether or not described herein or included in the Silgan Disclosure Schedules) is or is not material for purposes of this Agreement.
(iii) Exhibits/Schedules. The Schedules and Exhibits to this Agreement and the Silgan Disclosure Schedules referred to herein are an integral part of this Agreement and are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any matter or item disclosed on one schedule or section of the Silgan Disclosure Schedules shall be deemed to have been disclosed on each other schedule or section of the Silgan Disclosure Schedules, in which it is reasonably apparent on the face of such disclosure that it is responsive to such other schedule or section of the Silgan Disclosure Schedules, notwithstanding the lack of any cross reference, and such information shall be deemed to qualify such other schedule or section of the Silgan Disclosure Schedules. Disclosure of any item on any schedule or section of the Silgan Disclosure Schedules shall not constitute an admission, indication, acknowledgment or representation that such item or matter is material, establish any standard of materiality, define further the meaning of any terms defined in Article I (and, in particular, the inclusion of any item in the Silgan Disclosure Schedules shall not, in and of itself, be a basis for taking such item into account in determining if such item would reasonably be expected to have a Material Adverse Effect or whether there has been a Material Adverse Effect) or be deemed to constitute an acknowledgment or representation that any such matter is required to be disclosed. No disclosure on a schedule or section of the Silgan Disclosure Schedules relating to a possible breach or violation of any Contract, Law or Order shall be construed as an admission, indication, acknowledgment or representation that a breach or violation exists or has actually occurred. Disclosure of any matter or item in any schedule or section of the Silgan Disclosure Schedules shall not constitute an acknowledgement that any such matter or item is required to be disclosed. Any capitalized terms used in any schedule or section of the Silgan Disclosure Schedules or Schedule or Exhibit of this Agreement but not otherwise defined therein shall be defined as set forth in this Agreement.
(iv) Gender and Number. Any reference in this Agreement to gender shall include all genders, and words imparting the singular number only shall include the plural and vice versa.
(v) Headings. The provision of a table of contents, the division of this Agreement or the Silgan Disclosure Schedules into Articles, Sections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement or the Silgan Disclosure Schedules. All references in this Agreement or the Silgan Disclosure Schedules to any “Section” or “Article” are to the corresponding Section or Article of this Agreement or the Silgan Disclosure Schedules, as applicable, unless otherwise specified.
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(vi) Herein. The words “herein,” “hereinafter,” “hereof,” and “hereunder” refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires.
(vii) Including. The word “including” or any variation thereof means (unless the context of its usage otherwise requires) “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.
(viii) Reflected On or Set Forth In. An item arising with respect to a specific representation or warranty shall be deemed to be “reflected on” or “set forth in” a balance sheet or financial statements, to the extent any such phrase appears in such representation or warranty, if (A) there is a reserve, accrual or other similar item underlying a number on such balance sheet or financial statements that related to the subject matter of such representation or warranty, (B) such item is otherwise specifically set forth on the balance sheet or financial statements or (C) such item is reflected on the balance sheet or financial statements and is specifically set forth in the notes thereto.
(ix) And/Or. Unless the context clearly requires otherwise, when used herein “or” shall not be exclusive (i.e., “or” shall mean “and/or”).
(x) Amendments. Unless expressly indicated otherwise, references to a particular statute or regulation shall include all rules and regulations thereunder and any successor statute, rule or regulation, in each case, as amended, supplemented or otherwise modified from time to time. References to any agreement, including this Agreement, or contract referenced herein or in the Silgan Disclosure Schedules, will be a reference to such agreement or contract, as amended, supplemented or otherwise modified from time to time.
(xi) Person. References to any Person shall be deemed to mean and include the successors and permitted assigns of such Person (or, in the case of a Governmental Body, Persons succeeding to the relevant functions of such Person).
(xii) Written. References to “written” or “in writing” shall include in electronic form.
(xiii) Made Available. Any document will be deemed “delivered”, “provided” or “made available” (or where similar words are used to describe any document or information provided by SHI or any Acquired Company) within the meaning of this Agreement if such document is (A) accessible in the electronic data room hosted by Data Site for Project Vulcan (“Data Room”) or otherwise delivered to MetalCo, A-VL Holdings or any of their respective Affiliates or advisors (including the advisors identified in the “MetalCo” and “AIP” columns of the Advisor Matrix attached as Exhibit A to the Cost Sharing Agreement), in either case, at least one (1) Business Day prior to the date of this Agreement, or (B) delivered in writing (including by e-mail) to legal counsel to MetalCo or A-VL Holdings (including Sidley Austin LLP or Simpson Thacher & Bartlett LLP) at least one (1) Business Day prior to the execution and delivery of this Agreement.
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(xiv) Time of the Essence. Time shall be of the essence with respect to any notices or payments required pursuant to the terms of this Agreement.
(xv) Materiality of Conditions. The occurrence, satisfaction or performance of (and the consequences of the failure to occur, satisfy or perform) each condition contained in this Agreement was a material part of the agreed exchange between the Parties; and to the extent the occurrence, satisfaction or performance of any such conditions is required by a specific date and time, time is of the essence in the occurrence, satisfaction or performance of all such conditions.
(b) The Parties have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement. The language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against any Person.
ARTICLE II
CONTRIBUTION AND EXCHANGE; CLOSING
2.1 Closing Transactions. Subject to the terms of this Agreement and subject to the satisfaction or waiver of the conditions precedent set forth in this Agreement, at the Closing, the following transactions (collectively, the “Closing Transactions”) shall occur, in the order set forth below (or in such other order as the Parties may agree), each action promptly following the preceding action (if any) and the completion of each action being a condition precedent to each subsequent action, as follows:
(a) SHI shall cause Silgan Holdings to, assign, transfer, convey and deliver to MetalCo, and MetalCo shall accept from Silgan Holdings, all of Silgan Holdings’ right, title and interest in and to the Equity Securities of the U.S. Companies;
(b) MetalCo will assign, transfer, convey and deliver (and cause the assignment, transfer, conveyance and delivery) to MetalCo Bidco via each MetalCo Intermediate Holdco, and MetalCo Bidco shall accept (and shall cause the acceptance) from MetalCo, all of MetalCo’s right, title and interest in and to the Equity Securities of the U.S. Companies (such transfers, the “U.S. Company Dropdown”);
(c) after confirmation by the Notary to SIHBV and MetalCo Bidco of receipt of the MIHBV Transfer Note (as defined below) and delivery of each of the items set forth in Sections 2.3(a)(xi), 2.3(a)(xii) and 2.3(b)(xi), SHI shall cause SIHBV to transfer (levert) to MetalCo Bidco, and MetalCo Bidco shall accept (aanvaardt) such transfer (levering) from SIHBV, all of SIHBV’s right, title and interest in and to the Equity Securities of MIHBV free and clear of all Liens (other than transfer restrictions of general applicability imposed by applicable securities laws) in exchange for a promissory note, in a form and substance reasonably satisfactory to SHI, MetalCo and A-VL Holdings, in an amount equal to the MIHBV Transfer Amount (the “MIHBV Transfer Note”), and SHI shall procure that MIHBV acknowledges (erkent) such transfer (levering), the foregoing to be effected by execution of the Notarial Transfer Deed by, or on behalf of, SIHBV, MetalCo Bidco and MIHBV (the “MIHBV-MetalCo Bidco Transfer”);
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(d) MetalCo Bidco shall assign, transfer and distribute to Silgan Holdings, via each MetalCo Intermediate Holdco and MetalCo, and SHI shall cause Silgan Holdings to accept and assume from MetalCo, all of MetalCo Bidco’s obligations under the MIHBV Transfer Note, with each MetalCo Intermediate Holdco and MetalCo accepting and assuming such obligations in turn as part of such distribution, and SHI shall cause SIHBV, as holder of the MIHBV Transfer Note, to consent to each such assignment and assumption, upon which MetalCo Bidco, each MetalCo Intermediate Holdco and MetalCo shall be released from all obligations under the MIHBV Transfer Note;
(e) If elected by SHI pursuant to Section 7.8(j), (i) SHI shall incur debt with an aggregate principal amount equal to the SHI Debt Amount and (ii) MetalCo and SHI shall consummate the Debt Assumption (as defined herein);
(f) A-VL Holdings shall contribute, or cause to be contributed, to MetalCo an amount in cash equal to the A-VL Holdings Investment Amount (the “A-VL Holdings Contribution”), by wire transfer of immediately available funds to the account(s) designated in writing by MetalCo, and, in exchange therefor, MetalCo shall issue to A-VL Holdings (or its designated Affiliate) MetalCo Units representing, in the aggregate, forty percent (40%) of the total issued and outstanding Equity Securities of MetalCo as of immediately following the A-VL Holdings Contribution (the “A-VL Holdings Investment”), free and clear of all Liens other than transfer restrictions of general applicability imposed by federal or state securities laws or those imposed by the MetalCo LLC Agreement; and
(g) MetalCo shall distribute to Silgan Holdings (i) a portion of the proceeds from the Debt Financing in an aggregate amount equal to the Silgan Distribution Amount, and (ii) an amount equal to (A) the Estimated Silgan Share of SCF Offset Amount, plus (B) the Estimated Aggregate Adjustment Amount; provided that if the Estimated Aggregate Adjustment Amount is a negative number, the absolute value of which is greater than the Estimated Silgan Share of SCF Offset Amount (such excess amount, the “Silgan SCF Shortfall Amount”), then (x) no such distribution will be made by MetalCo to Silgan Holdings pursuant to clause (ii) above and (y) SHI shall cause Silgan Holdings to contribute an amount in cash equal to the Silgan SCF Shortfall Amount to MetalCo.
2.2 Closing. The consummation of the Transactions (the “Closing”) shall take place on a date to be specified by the Parties, which date shall be no later than the third Business Day after the satisfaction or waiver of the conditions set forth in Article VIII (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions at such time), by electronic (i.e., email or PDF documents) delivery of documents, unless another time, date or place is agreed to in writing by the Parties; provided that notwithstanding the satisfaction or waiver of the conditions set forth in Article VIII, unless otherwise agreed by the Parties, MetalCo shall not be required to effect the Closing prior to May 15, 2027; provided, further, that SHI may, by written notice to MetalCo delivered no later than two (2) Business Days prior to the date on which the Closing would otherwise be required to occur
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pursuant to the foregoing, elect (on one occasion only, unless the conditions set forth in Article VIII fail to continue to be satisfied or waived as of the elected Closing Date) to delay the Closing to the first Business Day of the calendar month immediately following the month in which the Closing would otherwise have occurred, in which case the Closing shall take place on such first Business Day (subject to the satisfaction or waiver of the conditions set forth in Article VIII as of such date); provided, further, that SHI may not make any such election if such first Business Day would occur on or after the applicable Termination Date (as defined in the Project Voyage Purchase Agreement). The date on which the Closing actually occurs is referred to in this Agreement as the “Closing Date”.
2.3 Closing Deliveries of the Parties.
(a) Deliveries by SHI. At or prior to the Closing, SHI shall deliver or cause to be delivered to MetalCo and A-VL Holdings (or their respective designees):
(i) Closing Certificates. (A) A certificate, dated as of the Closing Date, signed by an authorized signatory of SHI and delivered to MetalCo, as to the satisfaction of the conditions set forth in Section 8.2(a), Section 8.2(b), Section 8.2(e) and Section 8.2(f), and (B) a certificate, dated as of the Closing Date, signed by an authorized signatory of SHI and delivered to A-VL Holdings, as to the satisfaction of the conditions set forth in Section 8.4(a), Section 8.4(b), Section 8.4(e) and Section 8.4(f);
(ii) Payoff Letters. One or more executed lien or release or payoff letters with respect to the Silgan Debt Obligations set forth on Schedule 2.3(a)(ii) of the Silgan Disclosure Schedules which letters (A) shall be in form and substance reasonably acceptable to MetalCo and (B) provide for the automatic release of all Liens and guarantees securing or otherwise relating to the Acquired Companies or MetalCo (including copies of UCC-3 termination statements and other duly authorized Lien release documentation relating to the Silgan Debt Obligations, in a form suitable for filing or recording, as applicable), duly executed by the applicable lenders (or agent or trustee therefor), substantial drafts of which shall be provided to MetalCo at least three (3) Business Days prior to the Closing (collectively, the “Payoff Letters”);
(iii) Tax Forms. A properly executed IRS Form W-9 from SHI;
(iv) Transition Services Agreement. A counterpart of the Transition Services Agreement attached as Exhibit C hereto (the “Transition Services Agreement”), duly executed by SHI or a Retained Company;
(v) IP License Agreement. A counterpart of the IP License Agreement attached as Exhibit D hereto (the “IP License Agreement”), duly executed by SHI or a Retained Company;
(vi) IP Assignment Agreement. A counterpart of an intellectual property assignment agreement, in form and substance reasonably acceptable to SHI, MetalCo and A-VL Holdings and effecting the assignment of all Intellectual Property (other than Retained IP) owned by, purported to be owned by or licensed to SHI and its Affiliates (excluding the Acquired Companies) which is primarily used by or for the Business, including the Intellectual Property set forth on Schedule 2.3(a)(vi) of the Silgan Disclosure Schedules (as may be updated by mutual written agreement between SHI and MetalCo prior to Closing) (the “IP Assignment Agreement”), duly executed by SHI or a Retained Company;
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(vii) Restrictive Covenant Agreement. A counterpart of the Restrictive Covenant Agreement attached as Exhibit E hereto (the “Restrictive Covenant Agreement”), duly executed by SHI and Silgan Holdings;
(viii) MetalCo LLC Agreement. A counterpart of the MetalCo LLC Agreement, duly executed by SHI (solely for the purposes of Section 4.3(f), Section 4.3(g) and Section 7.5(d) thereof) and Silgan Holdings, and a counterpart of each Management Services Agreement (as defined in the MetalCo LLC Agreement), if any, to which Silgan Holdings is a party, duly executed by Silgan Holdings;
(ix) Joint Procurement Agreement. A counterpart of the Joint Procurement Agreement, duly executed by SHI;
(x) Good Standing Certificates. A duly executed certificate of an authorized officer of SHI certifying as to, if applicable, certificates or other evidence of good standing of each U.S. Company and each Company Subsidiary that is formed and organized in the U.S. issued by the applicable Governmental Body of the jurisdiction of each such Person’s organization or formation no more than ten (10) Business Days prior to the Closing;
(xi) Notarial Transfer Deed. The Notarial Transfer Deed in respect of the MIHBV Shares, duly executed by the Notary on behalf of SIHBV, MetalCo Bidco and MIHBV, pursuant to which SIHBV shall transfer title to the MIHBV Shares to MetalCo Bidco;
(xii) Notarial Deliverables. SHI shall, or shall cause its applicable Affiliates (including SIHBV) to, deliver or make available to the Notary:
(A) a PoA granted by SIHBV, to execute the Notarial Transfer Deed on its behalf, or a copy thereof;
(B) a PoA granted by MIHBV, to execute the Notarial Transfer Deed on its behalf, or a copy thereof;
(C) the original, complete, up-to-date and fully signed shareholders’ register of MIHBV;
(D) a confirmation letter (in a form satisfactory to the Notary) that, amongst other matters, confirms that all actions required to take place prior to the execution of the Notarial Transfer Deed pursuant to this Agreement have taken place or have been waived, in each case to the satisfaction of SHI, and that the Notary may proceed with the execution of the Notarial Transfer Deed, or a copy thereof;
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(E) a resolution of the management board of SIHBV to, inter alia, vote on the shares in the capital of MIHBV in relation to the MIHBV-MetalCo Bidco Transfer, or a copy thereof; and
(F) any document to comply with any know your customer (KYC) and/or ultimate beneficial owner requirements of the Notary;
(xiii) Reorganization. Evidence reasonably satisfactory to MetalCo that the Reorganization has been completed in accordance with Section 7.22, including duly executed copies of all Restructuring Documents; and
(xiv) SCF Offset Amount. Any amounts payable by Silgan Holdings in accordance with Section 2.1(g)(ii), if any, to MetalCo in immediately available funds by wire transfer to the account(s) designated in writing by MetalCo.
(b) Deliveries by MetalCo. At or prior to the Closing, MetalCo will deliver or cause to be delivered to SHI or the applicable Person:
(i) Silgan Transaction Expenses. To the extent unpaid as of immediately prior to the Closing, all Silgan Transaction Expenses, in the amounts and to the accounts of the relevant payees identified by SHI in the Closing Statement (together with invoices and a properly completed and executed IRS Form W-9 or the applicable IRS Form W-8 and other reasonably requested information from each applicable payee); provided that any such amounts which constitute compensation payments shall be paid following the Closing Date by MetalCo or its applicable Subsidiary (reduced by the amount of any Taxes that are required to be deducted and withheld with respect to such payment) to the individuals entitled thereto through MetalCo’s or its Subsidiaries’ payroll system and otherwise in accordance with the terms and conditions of such payments;
(ii) Silgan Distribution Amount. The Silgan Distribution Amount to Silgan Holdings in immediately available funds by wire transfer to the account(s) designated in writing by SHI, in accordance with Section 2.1(g);
(iii) SCF Offset Amount. Any amounts payable to Silgan Holdings in accordance with Section 2.1(g)(ii), if any, to Silgan Holdings in immediately available funds by wire transfer to the account(s) designated in writing by SHI;
(iv) Closing Certificates. (A) A certificate, dated as of the Closing Date, signed by an authorized signatory of MetalCo and delivered to SHI, as to the satisfaction of the condition set forth in Section 8.3(d), and (B) a certificate, dated as of the Closing Date, signed by an authorized signatory of MetalCo and delivered to A-VL Holdings, as to the satisfaction of the conditions set forth in Section 8.4(c), Section 8.4(d) and Section 8.4(g);
(v) Transition Services Agreement. A counterpart of the Transition Services Agreement, duly executed by MetalCo;
(vi) IP License Agreement. A counterpart of the IP License Agreement, duly executed by MetalCo;
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(vii) IP Assignment Agreement. A counterpart of the IP Assignment Agreement, duly executed by MetalCo;
(viii) Restrictive Covenant Agreement. A counterpart of the Restrictive Covenant Agreement, duly executed by MetalCo;
(ix) MetalCo LLC Agreement. A counterpart of the MetalCo LLC Agreement, duly executed by MetalCo, and a counterpart of each Management Services Agreement (as defined in the MetalCo LLC Agreement), if any, duly executed by MetalCo;
(x) Joint Procurement Agreement. A counterpart of the Joint Procurement Agreement, duly executed by MetalCo; and
(xi) Notarial Deliverables. MetalCo shall deliver or make available to the Notary:
(A) a data card, duly signed by each individual who will qualify as (pseudo-)ultimate beneficial owner of MIHBV immediately upon the execution of the Notarial Transfer Deed, and, if so requested by the Notary, legalised and such legalisation confirmed by apostille, including a proof of address of each such individual who does not have a Dutch citizen’s identification number (which proof may not be older than one (1) month at the Closing Date) and, to the extent applicable, any documentation evidencing the nature and extent of the beneficial interest held (in a form satisfactory to the Notary);
(B) a data card, duly signed by MetalCo Bidco (or its designated Affiliate) to register MetalCo Bidco (or its designated Affiliate) as sole shareholder of MIHBV with the Dutch Trade Register, together with an extract from the commercial register where MetalCo Bidco (or such Affiliate) is registered (which extract may not be older than one (1) month at the Closing Date) and, if so requested by the Notary, legalised, including a confirmation of authority or, if the legalisation cannot include such confirmation of authority, any other evidence of authority to the satisfaction of the Notary, such legalisation confirmed by apostille;
(C) a confirmation letter (in a form satisfactory to the Notary) that, amongst other matters, confirms that all actions required to take place prior to the execution of the Notarial Transfer Deed pursuant to this Agreement have taken place or have been waived, in each case to the satisfaction of MetalCo Bidco, and that the Notary may proceed with the execution of the Notarial Transfer Deed, or a copy thereof;
(D) a PoA, granted by MetalCo Bidco, to execute the Notarial Transfer Deed on its behalf, or a copy thereof; and
(E) any document to comply with any know your customer (KYC) and/or ultimate beneficial owner requirements of the Notary.
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(c) Deliveries by A-VL Holdings. At or prior to the Closing, A-VL Holdings will deliver or cause to be delivered:
(i) A-VL Holdings Investment Amount. The A-VL Holdings Investment Amount to MetalCo in immediately available funds by wire transfer to the account(s) designated in writing by MetalCo, in accordance with Section 2.1(f);
(ii) Closing Certificate. A certificate, dated as of the Closing Date, signed by an authorized signatory of A-VL Holdings as to the satisfaction of the conditions set forth in Section 8.2(a), Section 8.2(d), Section 8.2(g), Section 8.3(a), Section 8.3(b) and Section 8.3(c);
(iii) Restrictive Covenant Agreement. A counterpart of the Restrictive Covenant Agreement, duly executed by A-VL Holdings and AIP, LLC; and
(iv) MetalCo LLC Agreement. A counterpart of the MetalCo LLC Agreement, duly executed by A-VL Holdings (or its applicable Affiliates) and, solely for the purposes of Section 7.5(j) thereof, AIP, LLC and a counterpart of each Management Services Agreement (as defined in the MetalCo LLC Agreement), if any, to which A-VL Holdings is a party, duly executed by A-VL Holdings, in each case, to MetalCo and SHI.
2.4 Closing Statement. No later than five (5) Business Days prior to the Closing Date, SHI shall provide MetalCo with a written statement (the “Closing Statement”) reflecting SHI’s good faith estimate (without duplication) of (x) (a) the Working Capital Adjustment Amount (such estimate, the “Estimated Working Capital Adjustment Amount”), (b) the Closing Cash Amounts (such estimate, the “Estimated Closing Cash Amounts”), (c) the Closing Silgan Transaction Expenses (such estimate, the “Estimated Closing Silgan Transaction Expenses”), (d) the Closing Debt (such estimate, the “Estimated Closing Debt”), (e) the resulting Aggregate Adjustment Amount (the “Estimated Aggregate Adjustment Amount”) and (f) Silgan Distribution Amount, in each case, based upon the accounting books and records of SHI and its Affiliates and in accordance with this Agreement, including the Sample Working Capital Schedule and the Transaction Accounting Principles, and (y) the SCF Receivables (the “Estimated SCF Receivables”), the SCF Offset Amount (the “Estimated SCF Offset Amount”) and the resulting Silgan Share of SCF Offset Amount (the “Estimated Silgan Share of SCF Offset Amount”) and Remaining Share of SCF Offset Amount (the “Estimated Remaining Share of SCF Offset Amount”), in each case, based upon the accounting books and records of SHI and its Affiliates and in accordance with this Agreement and GAAP. The Closing Statement shall be accompanied by reasonable supporting detail and documentation and SHI shall consider in good faith any comments provided by MetalCo. The Estimated Working Capital Adjustment Amount, the Estimated Closing Cash Amounts, the Estimated Closing Silgan Transaction Expenses and the Estimated Closing Debt shall be used to calculate the Estimated Aggregate Adjustment Amount. The Estimated SCF Receivables shall be used to calculate the Estimated SCF Offset Amount, the Estimated Silgan Share of SCF Offset Amount and the Estimated Remaining Share of SCF Offset Amount. For the avoidance of doubt, the A-VL Holdings Investment Amount is fixed pursuant to its definition and shall not be adjusted by any of the foregoing estimates. No later than three (3) Business Days after receipt of the Closing Statement, MetalCo shall provide to SHI a detailed funds flow memorandum in Excel format (including all underlying calculations, formulas and amounts therein) setting forth all payments to be made by or on behalf of the Parties at Closing in accordance with this Agreement. MetalCo shall not be responsible for and shall be entitled to conclusively rely on the allocations set forth in the Closing Statement without any obligation to
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investigate or verify the accuracy or correctness thereof, and in no event shall MetalCo or any of its Affiliates (including, from and after the Closing, the Acquired Companies) or Representatives have any liability to any Person (including SHI, Silgan Holdings or SIHBV) in connection with any claims relating to any alleged inaccuracy or miscalculation associated with the Closing Statement and the information contained therein or payments made by any Person in accordance therewith.
2.5 Post-Closing Statement.
(a) Within one hundred twenty (120) days following the Closing Date, SHI shall deliver to MetalCo a written statement (the “Post-Closing Statement”), setting forth its good-faith calculation of (i) the Working Capital Adjustment Amount, the Closing Cash Amounts, the Closing Silgan Transaction Expenses, the Closing Debt and the resulting Aggregate Adjustment Amount, in each case prepared in a manner consistent with the definitions in this Agreement, the Sample Working Capital Schedule and the Transaction Accounting Principles, and (ii) the SCF Receivables, the SCF Offset Amount, the Silgan Share of SCF Offset Amount and the Remaining Share of SCF Offset Amount, in each case, prepared in a manner consistent with the definitions in this Agreement and GAAP, and in each case of clause (i) and (ii), and based upon the accounting books and records of the Acquired Companies, together with reasonable supporting detail.
(b) Within ninety (90) days following receipt by MetalCo of the Post-Closing Statement (such period, the “Review Period”), MetalCo shall deliver written notice to SHI of any dispute MetalCo has with respect to the calculation, preparation or content of the Post-Closing Statement (the “Dispute Notice”); provided that if MetalCo does not deliver any Dispute Notice to SHI within such Review Period, the Post-Closing Statement will be final, conclusive and binding on the Parties. The Dispute Notice shall set forth in reasonable detail (i) any item on the Post-Closing Statement that MetalCo disputes and (ii) MetalCo’s estimate of the correct amount of such item. Any items not disputed or objected to in the Dispute Notice timely delivered by MetalCo to SHI shall be deemed to have been accepted by the Parties. The Post-Closing Statement shall be deemed to have been accepted by the Parties and shall become final and binding upon the Parties as of the expiration of the Review Period with respect to any matters set forth therein not then subject to an unresolved dispute set forth in the Dispute Notice. Upon receipt by SHI of a Dispute Notice, MetalCo and SHI shall negotiate in good faith to resolve any dispute set forth therein. All such discussions and communications related thereto shall (unless otherwise agreed by MetalCo and SHI) be governed by Rule 408 of the Federal Rules of Evidence and any applicable similar state rule, and any resolution by them agreed to in writing as to any disputed amounts shall be final, binding and conclusive. If MetalCo and SHI fail to resolve any such dispute within thirty (30) days after delivery of the Dispute Notice (the “Dispute Resolution Period”), then, within ten (10) Business Days following the expiration of the Dispute Resolution Period, KPMG, or if not available or unwilling to accept the engagement, then a nationally recognized firm of independent certified public accountants reasonably acceptable to MetalCo and SHI (other than SHI’s accountants, A-VL Holdings’ accountants or MetalCo’s accountants) (the “Independent Accounting Firm”) shall be engaged to resolve any such dispute; provided that, if MetalCo and SHI are unable to mutually agree on an accounting firm to serve as the Independent Accounting Firm or such selected accounting firm is unwilling or unable to perform the services required under this Section 2.5 and MetalCo and SHI are unable to mutually agree on another accounting firm to serve as the Independent Accounting Firm, then each of MetalCo and SHI shall select a nationally
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recognized major accounting firm, and the two firms will mutually select a third nationally recognized firm of independent certified public accountants to serve as the Independent Accounting Firm. MetalCo and SHI each agree to promptly sign an engagement letter, in commercially reasonable form, as may reasonably be required by the Independent Accounting Firm. As promptly as practicable, and in any event not more than fifteen (15) days following the engagement of the Independent Accounting Firm, MetalCo and SHI shall each prepare and submit a written presentation detailing each Party’s complete statement of proposed resolution of each issue still in dispute to the Independent Accounting Firm (it being understood that the content of each such presentation shall be limited to whether the Working Capital Adjustment Amount, the Closing Cash Amounts, the Closing Silgan Transaction Expenses, the Closing Debt and the resulting Aggregate Adjustment Amount were properly calculated in accordance with the definitions in this Agreement, the Sample Working Capital Schedule and the Transaction Accounting Principles, whether the SCF Receivables and the resulting SCF Offset Amount, Silgan Share of SCF Offset Amount and Remaining Share of SCF Offset Amount were properly calculated in accordance with the definitions in this Agreement and GAAP, the proposed resolution of each disputed issue by such Party and reasonable supporting detail for the foregoing). MetalCo and SHI shall instruct the Independent Accounting Firm to, as soon as practicable after the submission of the presentations described in the immediately preceding sentence and in any event not more than twenty (20) days following such presentations, acting as an expert in accounting and not as an arbitrator, make a final determination, binding on the Parties to this Agreement, of the appropriate amount of each of the line items that remain in dispute as indicated in the Dispute Notice. None of the Parties, nor any of their respective Affiliates shall have any ex parte communications or meetings with the Independent Accounting Firm regarding the subject matter hereof without the other Party’s prior written consent. The Independent Accounting Firm shall agree that between the time MetalCo delivered the Dispute Notice and the date on which any disputed item was submitted to the Independent Accounting Firm, MetalCo and SHI and their respective Representatives may have exchanged certain proposals relating to the disputed items that were intended solely for purposes of facilitating settlement discussions, and such proposals were confidential and were provided solely on the condition and understanding that such proposals would not be permitted to be disclosed in any court or arbitration hearing or in respect of the Independent Accounting Firm’s engagement in the dispute, and the Independent Accounting Firm will be instructed to disregard any evidence of such settlement proposals and negotiations in its consideration of the disputed items. With respect to each disputed line item, the Independent Accounting Firm shall only assign a value to each disputed item equal to the value claimed by either SHI or MetalCo. Notwithstanding the foregoing, the scope of the disputes to be resolved by the Independent Accounting Firm shall be limited to (x) whether any disputed determinations of the Working Capital Adjustment Amount, the Closing Cash Amounts, the Closing Silgan Transaction Expenses, the Closing Debt and the resulting Aggregate Adjustment Amount were properly calculated in accordance with the definitions in this Agreement and the Transaction Accounting Principles and (y) whether any disputed determinations of the SCF Receivables and the resulting SCF Offset Amount, the Silgan Share of SCF Offset Amount and Remaining Share of SCF Offset Amount were properly calculated in accordance with the definitions in this Agreement and GAAP. The fees and expenses of the Independent Accounting Firm shall be allocated to be paid by SHI, on the one hand, and MetalCo, on the other hand, based upon the percentage that the portion of the contested amount not awarded to each Party bears to the amount actually contested by such Party, as determined by the Independent Accounting Firm. For example,
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if MetalCo claims in a Dispute Notice that the sum of the Aggregate Adjustment Amount and the Silgan Share of SCF Offset Amount is $1,000 greater than the amount determined by SHI in the Post-Closing Statement, and if the Independent Accounting Firm ultimately resolves the dispute by awarding MetalCo $600 of the $1,000 contested, then the costs and expenses of the Independent Accounting Firm will be allocated 60% (i.e., 600 ÷ 1,000) to SHI and 40% (i.e., 400 ÷ 1,000) to MetalCo. All determinations made by the Independent Accounting Firm, and the Post-Closing Statement, as modified by the Independent Accounting Firm, will, absent manifest error or fraud, be final, conclusive and binding on the Parties. The Parties agree that any adjustment as determined pursuant to this Section 2.5(b) shall be implemented as an adjustment to (and true-up payment in respect of) the Silgan Share of SCF Offset Amount, the Remaining Share of SCF Offset Amount and/or Silgan Distribution Amount in accordance with Section 2.5(d).
(c) For purposes of complying with the terms set forth in this Section 2.5, each Party shall reasonably cooperate with and promptly make available to each other and their respective Representatives, to the extent requested, all personnel, information, records, data and working papers (subject to customary confidentiality agreements and access letters, as applicable), and shall permit reasonable access to its facilities and personnel, as may be reasonably required in connection with the preparation and analysis of the Closing Statement or Post-Closing Statement, as applicable, and the resolution of any disputes thereunder; provided that any Party may withhold any document (or portions thereof) or information that may constitute privileged attorney-client communications or attorney work product, the transfer of which, or the provision of access to which, on the advice of legal counsel, would reasonably be expected to risk a waiver of such privilege or if the provision of access to such document (or portion thereof) or information, on the advice of legal counsel, would reasonably be expected to conflict with applicable Law (it being agreed, that, in the event any of the restrictions in the foregoing apply, the disclosing Party shall provide the other Party with a reasonably detailed description and summary of the information not provided and cooperate in good faith with such other Party to design and implement alternative disclosure arrangements to enable such other Party and its Representatives to evaluate any such information without resulting in such violation or jeopardizing such attorney-client privilege or contravening such Laws).
(d) If the Aggregate Adjustment Amount as finally determined pursuant to this Section 2.5 (the “Final Aggregate Adjustment Amount”) shall exceed the Estimated Aggregate Adjustment Amount, then MetalCo shall distribute or cause to be distributed an amount in cash equal to such excess to Silgan Holdings by wire transfer of immediately available funds to an account or accounts designated in writing by SHI to MetalCo, which distribution the Parties intend to treat as an upward adjustment to the Silgan Distribution Amount. If the Silgan Share of SCF Offset Amount as finally determined pursuant to this Section 2.5 (the “Final Silgan Share of SCF Offset Amount”) shall exceed the Estimated Silgan Share of SCF Offset Amount, then MetalCo shall distribute or cause to be distributed an amount in cash equal to such excess to Silgan Holdings by wire transfer of immediately available funds to an account or accounts designated in writing by SHI to MetalCo, which distribution the Parties intend to treat as an upward adjustment to the Silgan Distribution Amount. If the Estimated Aggregate Adjustment Amount shall exceed the Final Aggregate Adjustment Amount, then SHI shall, or shall cause Silgan Holdings to, pay an amount in cash equal to such excess to MetalCo by wire transfer of immediately available funds to an account or accounts designated in writing by MetalCo to SHI. If the Estimated Silgan Share of SCF Offset Amount shall exceed the Final Silgan Share of SCF Offset Amount, then SHI shall, or shall cause Silgan Holdings to, pay an amount in cash equal to such excess to MetalCo by wire transfer of immediately available funds to an account or accounts designated in writing by MetalCo to SHI.
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(e) Any such payments under Section 2.5(d) are to be made within five (5) Business Days of the date on which (i) the Working Capital Adjustment Amount, Closing Cash Amounts, Closing Silgan Transaction Expenses, Closing Debt and the resulting Aggregate Adjustment Amount, and (ii) the SCF Receivables, the SCF Offset Amount and the resulting Silgan Share of SCF Offset Amount and the Remaining Share of SCF Offset Amount, in each case, are finally determined pursuant to this Section 2.5, and any amounts owing pursuant to this Section 2.5(d) shall be paid in full, without any set-off or deduction or withholding for any amounts (except as provided in Section 2.6).
2.6 Withholding. MetalCo, A-VL Holdings and each of their respective Affiliates and agents shall be entitled to deduct and withhold, or cause to be deducted and withheld, from any payments made hereunder any and all Taxes, if any, that such Party is required to deduct and withhold under any provision of applicable Laws. Any Party intending to deduct or withhold any amounts from any payment to SHI hereunder (other than in respect of any amounts treated as compensation for applicable Tax purposes) shall use commercially reasonable efforts to (a) notify SHI of such intention at least five (5) Business Days prior to making such deduction or withholding and (b) cooperate with SHI to reduce or eliminate any such deduction or withholding to the extent permitted by applicable Law, including by affording SHI a reasonable opportunity to provide any form, certificate or other documentation establishing an available exemption from or reduction in such deduction or withholding. The Parties acknowledge that, as of the date hereof, assuming delivery by SHI of the properly executed IRS Form W-9, described in Section 2.3(a)(iii), no deduction or withholding for U.S. federal income Tax purposes is expected to be required in respect of any payment to SHI pursuant to this Agreement, including the Silgan Distribution Amount pursuant to Section 2.1(g), absent a change in Tax Laws. To the extent that any amounts are deducted or withheld under this Section 2.6, such amounts shall be duly and timely deposited with or paid to the appropriate Taxing Authority and treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction or withholding was made.
2.7 Post-Closing Register Updates. After the Closing, SHI and MetalCo shall procure that the Notary updates the shareholders’ register of MIHBV. After the Closing, SHI and MetalCo shall procure that the Notary updates the Dutch Trade Register with the relevant resignations, appointments, change(s) in shareholder(s), ultimate beneficial owner(s) and MIHBV’s address and/or amended articles of association (as applicable).
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ARTICLE III
REPRESENTATIONS AND WARRANTIES REGARDING SHI
Except as set forth on the disclosure schedules delivered to MetalCo concurrently with the execution of this Agreement (the “Silgan Disclosure Schedules”), SHI hereby represents and warrants to MetalCo and A-VL Holdings that:
3.1 Organization and Good Standing. Each of SHI, Silgan Holdings and SIHBV is duly organized, validly existing and in good standing under the Laws of its jurisdiction of formation and has all requisite corporate, limited liability company or similar entity power and authority to own, lease and operate its material properties, rights and assets and to carry on its business in all material respects as now conducted. There are no Legal Proceedings pending, or threatened in writing, for dissolution, liquidation or insolvency of SHI, Silgan Holdings or SIHBV.
3.2 Authorization of Agreement. SHI (and, as applicable, its applicable Affiliates) has all requisite corporate, limited liability company or similar entity power and authority to execute and deliver this Agreement and any Transaction Documents to which they are or may become a party, to perform their respective obligations hereunder and thereunder, and to consummate the Transactions. The execution, delivery and performance of this Agreement by SHI (and, as applicable, its applicable Affiliates) and any Transaction Documents to which they are a party and the consummation by SHI (and, as applicable, its applicable Affiliates) of the Transactions have been (or, with respect to any Transaction Document to be entered into at the Closing, will have been as of the Closing) duly authorized by all necessary corporate, limited liability company or similar entity action, and no other corporate, limited liability company or similar entity proceedings on the part of SHI (and, as applicable, its applicable Affiliates) and no additional corporate, limited liability company or similar entity approvals are necessary to authorize the execution, delivery and performance of this Agreement and any Transaction Documents to which they are a party and the consummation of the Transactions. This Agreement has been (or, with respect to any Transaction Document to be entered into at the Closing, will have been as of the Closing) duly and validly executed and delivered by SHI (and, as applicable, its applicable Affiliates) and assuming the due authorization, execution and delivery by the other parties hereto and thereto, this Agreement constitutes, and any Transaction Document when so executed and delivered by SHI (and, as applicable, its applicable Affiliates) will constitute, the legal, valid and binding obligation of SHI (and, as applicable, its applicable Affiliates), enforceable against SHI (and, as applicable, its applicable Affiliates) in accordance with its terms, except to the extent that enforceability thereof may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights and remedies generally, and (b) general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) (collectively, the “Equitable Exceptions”).
3.3 Ownership of the Company Shares; RSUs.
(a) As of the date of this Agreement, (a) Silgan Holdings is the sole legal and beneficial owner (or, as applicable, a wholly-owned Subsidiary of Silgan Holdings is the sole legal and beneficial owner) of all of the Equity Securities of the U.S. Companies and (b) the Persons set forth on Schedule 3.3(a) of the Silgan Disclosure Schedules are the sole legal and beneficial owners of all of the Equity Securities of the Non-U.S. Companies, in each case free and clear of any and all Liens (other than (x) restrictions arising under the Organizational Documents of the U.S. Companies and Non-U.S. Companies or restrictions relating to the transferability of securities under applicable securities Laws or (y) Liens arising under the Silgan Debt Facilities), and such Persons collectively have the right to exercise all voting, economic and other rights over such Equity Securities. As of immediately prior to the Closing, after giving effect to the Reorganization, Silgan Holdings will be the sole legal and beneficial owner of all of the Equity Securities of the
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U.S. Companies and MIHBV, and MIHBV will, directly or indirectly through one or more of its Subsidiaries, be the sole legal and beneficial owner of all of the Equity Securities of the Non-U.S. Companies, in each case free and clear of any and all Liens (other than (x) restrictions arising under the Organizational Documents of the U.S. Companies and Non-U.S. Companies or restrictions relating to the transferability of securities under applicable securities Laws or (y) Liens arising under the Silgan Debt Facilities). Silgan Holdings has the limited liability company power, authority and legal capacity to sell, transfer, assign and deliver, or to cause the sale, transfer, assignment or delivery of, the Equity Securities of the U.S. Companies and MIHBV to MetalCo and MetalCo Bidco, respectively, as provided in this Agreement, and such delivery will convey to MetalCo or MetalCo Bidco, as applicable, title to such Equity Securities, free and clear of any and all Liens (other than (x) restrictions relating to the transferability of securities under applicable securities Laws or (y) Liens arising under the Debt Financing).
(b) With respect to each restricted stock unit that can settle into SHI’s stock held by any Acquired Company Employee or any current or former employee or other service provider of any Acquired Company that is outstanding as of the date of this Agreement (each, a “SHI RSU”), a true, correct and complete list of the following has been made available to MetalCo: (i) the holder thereof; (ii) the number of shares subject to such SHI RSU; (iii) the grant date; and (iv) the vesting schedule. SHI has made available to MetalCo an accurate and complete copy of SHI’s form of RSU award agreement pursuant to which all SHI RSUs have been granted without material deviation. Each SHI RSU was granted and maintained in a manner such that it is exempt from or complies with the requirements of Section 409A of the Code or any similar provision in any other Tax jurisdiction.
3.4 Non-contravention. None of the execution, delivery or performance of this Agreement or the other Transaction Documents, the consummation of the Transactions or compliance by SHI, Silgan Holdings and SIHBV with any of the provisions hereof or thereof will (a) conflict with or violate any Law to which SHI, Silgan Holdings and SIHBV are subject, (b) conflict with or violate in any material respect any provision of any Organizational Documents of SHI, Silgan Holdings and SIHBV or (c) conflict with, result in a breach or violation of or any loss of any benefit under or termination of, constitute a default under, result in the acceleration of, create in any Person the right to accelerate, terminate, modify or cancel, require any notice, authorization, approval or consent under, or result in the imposition of any Lien (other than Permitted Liens) upon any of the rights, properties or assets of SHI, Silgan Holdings and SIHBV under any Contract or Permit to which SHI, Silgan Holdings and SIHBV are a party, other than, in the case of clauses (a) and (c), such violations, conflicts, breaches, defaults, accelerations, terminations, modifications, cancellations, failures to give notice or obtain consent or Liens that would not reasonably be expected to, individually or in the aggregate, prohibit, restrain or otherwise materially delay SHI’s, Silgan Holdings’ or SIHBV’s performance of this Agreement or ability to consummate the Transactions. Except for any filings required pursuant to Section 7.3, SHI is not required to provide any notice to, make any filing with or obtain any authorization, consent or approval of any Governmental Body in order for SHI, Silgan Holdings and SIHBV to consummate the Transactions, except in each case where the failure to give such notice or obtain such approval would not prohibit, restrain or otherwise materially delay SHI’s performance of this Agreement or ability to consummate the Transactions.
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3.5 Litigation. There are no Legal Proceedings pending or, to the Knowledge of SHI, threatened against SHI, Silgan Holdings and SIHBV that would reasonably be expected to prohibit, restrain or otherwise materially delay SHI’s, Silgan Holdings’ and SIHBV’s ability to enter into this Agreement or any other Transaction Document to which it is or will be a party or consummate the Transactions. Neither SHI, Silgan Holdings or SIHBV is subject to any Order except to the extent the Order would not reasonably be expected to prohibit or restrain the ability of SHI, Silgan Holdings or SIHBV to enter into this Agreement or any other Transaction Document to which it is or will be a party or consummate the Transactions.
3.6 Brokers’ Fee. Except as set forth on Schedule 4.22 of the Silgan Disclosure Schedules, Silgan Holdings and SIHBV have not entered into any agreement with any Person that would obligate any Acquired Company to pay any commission, brokerage, financial advisory, investment banker fee, “finder’s fee” or similar fee in connection with the consummation of the Transactions.
3.7 SHI Existing Debt.
(a) A true, correct and complete copy of each of the Silgan Debt Facilities, each as in effect on the date of this Agreement, has been provided to MetalCo.
(b) A true, correct and complete copy of a backstop amendment commitment letter in respect of the Silgan Credit Agreement, pursuant to which, among other things, MetalCo and its Subsidiaries shall be permitted to be “unrestricted subsidiaries” thereunder has been provided to MetalCo.
(c) As of the date hereof, no “Default” or “Event of Default” (each as defined in the Silgan Debt Documents as in effect as of the date of this Agreement) has occurred and is continuing under any Silgan Debt Facility.
3.8 Non-Reliance. Except for the Express Representations expressly made by MetalCo and A-VL Holdings, SHI, on behalf of itself (as applicable) and the Acquired Companies, represents and warrants to MetalCo and A-VL Holdings that it is not relying upon, and will not rely upon, (a) any representation or warranty, expressed or implied, at law or in equity, made by any Person in respect of MetalCo or A-VL Holdings, or MetalCo’s or A-VL Holdings’ businesses, assets, liabilities, operations, prospects, or condition (financial or otherwise), including the accuracy or completeness of any confidential information memoranda, documents, projections, forecasts, opinions, advice, material, statement, data, or other information (financial or otherwise) regarding MetalCo or A-VL Holdings provided to, or otherwise made available to, SHI or its Representatives in connection with the Transactions, and (b) any Person providing or not providing any information not specifically required to be provided or disclosed pursuant to the Express Representations.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES REGARDING THE ACQUIRED COMPANIES
Except as set forth on the Silgan Disclosure Schedules, SHI hereby represents and warrants to MetalCo and A-VL Holdings that:
4.1 Organization and Good Standing. Each U.S. Company and Non-U.S. Company is duly organized and validly existing under the Laws of its jurisdiction of formation and has all requisite corporate, limited liability company or similar entity power and authority to own, lease and operate its material properties, rights and assets and to carry on its business in all material respects as now conducted. Each U.S. Company and Non-U.S. Company is duly qualified or authorized to do business as a foreign corporation or other entity and is in good standing under the Laws of each jurisdiction in which it owns or leases real property and each other jurisdiction in which the conduct of its business or the ownership of its properties and assets requires such qualification or authorization, except where the failure to be so qualified, authorized or in good standing would not be material, individually or in the aggregate, to the Acquired Companies, taken as a whole. True, complete and correct copies of the Organizational Documents of each U.S. Company and Non-U.S. Company, each as amended and otherwise in effect on the date hereof, have been made available to MetalCo.
4.2 Authorization of Agreement. The Acquired Companies will have all requisite corporate, limited liability company or similar entity power and authority to execute and deliver the Transaction Documents to be executed by the Acquired Companies in connection with the consummation of the Transactions (the “Company Documents”), to perform their obligations hereunder and thereunder, and to consummate the Transactions. The execution, delivery and performance of the Company Documents by the Acquired Companies and the consummation of the Transactions have been (or, with respect to any Company Document to be entered into at the Closing, will have been as of the Closing) duly authorized by all necessary corporate, limited liability company or similar entity action, and no other corporate, limited liability company or similar entity action on the part of the Acquired Companies is necessary to authorize the execution, delivery and performance of this Agreement and each of the Company Documents, to perform their obligations hereunder and thereunder, and the consummation of the Transactions. The Company Documents have been (or, with respect to any Company Document to be entered into at the Closing, will have been as of the Closing) duly and validly executed and delivered by the Acquired Companies and assuming the due authorization, execution and delivery by the other parties hereto and thereto, each Company Document when so executed and delivered will constitute, the legal, valid and binding obligation of the Acquired Companies, enforceable against the Acquired Companies in accordance with its terms, except to the extent that enforceability thereof may be limited by the Equitable Exceptions.
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4.3 Conflicts; Consents of Third Parties.
(a) None of the execution and delivery by the Acquired Companies of the Company Documents, the consummation by the Acquired Companies of the Transactions, or compliance by the Acquired Companies with any of the provisions hereof or thereof will (i) conflict with or violate any provision of the Organizational Documents of the Acquired Companies; (ii) conflict with, result in a breach or violation of or any loss of any benefit under or termination of, constitute a default under, result in the acceleration of, create in any Person the right to accelerate, terminate, modify or cancel, require any notice, authorization, approval or consent under, or result in the imposition of any Lien upon any of the rights, properties or assets of any Acquired Company under any provision of any Material Contract, or material Permit to which any Acquired Company is a party; or (iii) conflict with or violate any Law or Order applicable to any Acquired Company or by which any of the properties or assets of any Acquired Company are bound, other than, in the case of clauses (ii) and (iii), such conflicts, violations, defaults, terminations or cancellations that are not, or would not reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole.
(b) Assuming the accuracy of the representations and warranties in Section 5.3 and Section 6.3, no consent, waiver, approval, Order, Permit or authorization of, or declaration or filing with, or notification to, any Governmental Body is required on the part of any Acquired Company in connection with the execution, performance and delivery by the Acquired Companies of the Company Documents, the compliance by the Acquired Companies with any of the provisions hereof or thereof, or the consummation by the Acquired Companies of the Transactions, except for (i) any filings required pursuant to Section 7.3; (ii) any other consent, waiver, approval, Order, Permit or authorization the failure of which to obtain would not be, individually or in the aggregate, material to the Acquired Companies, taken as a whole, (iii) the execution of the Notarial Transfer Deed and (iv) those that may be required solely by reason of MetalCo’s (as opposed to any other third party’s) participation in the Transactions.
4.4 Capitalization.
(a) Schedule 4.4(a) of the Silgan Disclosure Schedules sets forth, as of the date of this Agreement, all of the authorized share capital of the U.S. Companies and Non-U.S. Companies and the number and class of all issued and outstanding shares, membership interests or other Equity Securities of the U.S. Companies and Non-U.S. Companies (collectively, the “Company Shares”), including the record holders thereof. All outstanding Company Shares have been duly authorized and are validly issued and fully paid up or non-assessable and have not been issued in violation of any stockholder agreement, proxy, voting trust or similar agreement, or purchase options, call options, preemptive rights, subscription rights, rights of first offer, rights of first refusal or similar rights of any Person.
(b) Except for this Agreement or the Organizational Documents of the Companies, there is no outstanding option, warrant, call, right, or Contract of any character to which any of the U.S. Companies or Non-U.S. Companies is a party requiring, and there are no Equity Securities of the U.S. Companies or Non-U.S. Companies outstanding which upon conversion or exchange would require, the issuance of any shares of capital stock of the U.S. Companies or Non-U.S. Companies or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase shares of capital stock of the U.S. Companies or Non-U.S. Companies, including any equity or equity-based award (or cash based on the value of such capital stock, including pursuant to any phantom equity or similar arrangement). The U.S. Companies and Non-U.S. Companies are not a party to any voting trust or other Contract with respect to the voting, redemption, sale, transfer or other disposition of the Company Shares.
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4.5 Company Subsidiaries.
(a) Schedule 4.5(a) of the Silgan Disclosure Schedules sets forth a true, complete and accurate list of the name of each of the Company Subsidiaries, and, with respect to each Company Subsidiary: (i) the jurisdiction in which it is incorporated or organized (as applicable); and (ii) the number and class of shares or other Equity Securities thereof duly authorized, issued and outstanding, the names of all record holders and beneficial owners thereof and the number and type of shares of stock, membership interests or other Equity Securities held by each such holder or owner, in each case, as of the date of this Agreement. Each of the Company Subsidiaries is a duly organized and validly existing corporation or other entity in good standing to the extent such concepts are recognized under the Laws of the jurisdiction of its incorporation or organization, and has all requisite corporate (or similar entity) power and authority to own, lease and operate its properties and to carry on its business as presently conducted, except where the failure to be so organized, existing and in good standing or to have such power and authority would not be, individually or in the aggregate, material to the Acquired Companies, taken as a whole. Each of the Company Subsidiaries is duly qualified or authorized to do business as a foreign corporation or entity and is in good standing to the extent such concepts are recognized under the Laws of each jurisdiction in which the conduct of its business or the ownership of its properties requires such qualification or authorization, except where the failure to be so qualified, authorized or in good standing would not be, individually or in the aggregate, material to the Acquired Companies, taken as a whole. True, complete and correct copies of the Organizational Documents of each Company Subsidiary, each as amended and otherwise in effect on the date hereof, have been made available to MetalCo.
(b) The outstanding shares or other Equity Securities of each of the Company Subsidiaries are validly issued, fully paid and non-assessable, to the extent such concepts are applicable to such Equity Securities, and such Equity Securities have not been issued in violation of any preemptive rights (except to the extent provided by applicable Law and other than such rights as may be held by any Acquired Company). All such shares or other Equity Securities represented as being owned by the Companies or a Company Subsidiary are owned by it free and clear of any Liens, other than restrictions arising under the Organizational Documents of the Acquired Companies or restrictions relating to the transferability of securities under applicable securities Laws and Liens arising under the Silgan Credit Agreement.
(c) There is no outstanding option, warrant, call, right or Contract to which any of the Company Subsidiaries is a party requiring, and there are no convertible securities of any of the Company Subsidiaries outstanding which upon conversion would require, the issuance of any shares of capital stock or other Equity Securities of any of the Company Subsidiaries or other securities convertible into shares of capital stock or other Equity Securities of any of the Company Subsidiaries. None of the shares of stock or other Equity Securities of each Company Subsidiary were issued in violation of any stockholder agreement, proxy, voting trust or similar agreement, or purchase options, call options, preemptive rights, subscription rights, rights of first offer, rights of first refusal or similar rights of any Person. No Company Subsidiary is a party to any voting trust or other Contract with respect to the voting, redemption, sale, transfer or other disposition of the capital stock of such Company Subsidiary. Neither the Companies nor any of the Company Subsidiaries owns any stock, partnership interest, joint venture interest or other equity ownership interest in any Person other than the Company Subsidiaries.
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(d) No Acquired Company has ever issued a joint and several liability declaration as described in Section 2:403 of the Dutch Civil Code and no such declarations have been issued in respect of any Acquired Company.
(e) As of the Closing, after giving effect to the Reorganization, (i) MIHBV will be the sole legal and beneficial owner (or, MIHBV together with a wholly-owned Subsidiary of MIHBV will be the sole legal and beneficial owners) of all of the Equity Securities of the Non-U.S. Companies, free and clear of all Liens (other than restrictions on transferability under applicable securities Laws) and (ii) MIHBV will have been formed solely for purposes of the Reorganization and the Transactions and will not have engaged in any business activities or incurred any Liabilities, in each case other than in connection with its formation, the Reorganization, the Transactions and the transactions contemplated by the Project Voyage Purchase Agreement.
4.6 Financial Statements.
(a) SHI has made available to MetalCo copies of: (i) the unaudited financial statements prepared by SHI’s management in respect of the Business at and for the years ended December 31, 2025, December 31, 2024 and December 31, 2023 (the “Management Financial Statements”) and (ii) the unaudited financial statements prepared by SHI’s management in respect of the Business at and for the six-month period ended June 30, 2026 (the “Balance Sheet Date”) (the “Interim Financial Statements” and, collectively with the Management Financial Statements, the “Financial Statements”). The Financial Statements have been prepared in accordance with the books and records of SHI and its Affiliates (in respect of the Business) in all material respects and except (A) as set forth on Schedule 4.6(a) of the Silgan Disclosure Schedules and (B) for the absence of normal year-end audit adjustments and footnotes in the Interim Financial Statements, each of the Financial Statements has been prepared in accordance with GAAP consistently applied and fairly presents in all material respects the financial condition and profits and losses of the Business as at the dates and for the periods indicated therein.
(b) SHI and its Affiliates (in respect of the Business) have established and maintain a system of internal accounting controls sufficient to provide reasonable assurances (i) that transactions are recorded as necessary in all material respects to permit preparation of the financial statements of the Business and the Acquired Companies in accordance with GAAP, (ii) that transactions are being entered into and subsequently recorded in accordance in all material respects with appropriate authorizations of management or the applicable governing body of the Acquired Companies, as applicable, and (iii) regarding prevention or timely detection of unauthorized acquisition, use or disposition of assets of the Business and the Acquired Companies that could be material to the Financial Statements. SHI and its applicable Affiliates (in respect of the Business) maintain effective controls and procedures that are designed to ensure that all material information concerning the Business and the Acquired Companies is made known on a timely basis to the individuals responsible for the preparation of the Financial Statements.
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4.7 No Undisclosed Liabilities. None of the Acquired Companies has any liabilities of any kind that would have been required to be reflected in or reserved against on the consolidated balance sheet of the Acquired Companies or in the notes thereto prepared in accordance with GAAP, other than liabilities: (i) reflected in or reserved against on the consolidated balance sheet of the Acquired Companies as of the Balance Sheet Date or disclosed in the notes thereto; (ii) that have been incurred in the Ordinary Course of Business after the Balance Sheet Date (none of which arises out of or in connection with breach or default under any Contract or violation of any Law); (iii) that will be incurred as contemplated by this Agreement or otherwise in connection with the Transactions; or (iv) that have been discharged or paid off since the Balance Sheet Date. To the Knowledge of SHI, there are no material liabilities of the Acquired Companies relating to any facilities which were owned or operated by the Acquired Companies since the Lookback Date, which are, as of the date of this Agreement and the Closing Date, no longer owned or operated by the Acquired Companies.
4.8 Absence of Certain Developments. Except as required or expressly contemplated by this Agreement, since the Balance Sheet Date to the date of this Agreement: (a) there has not been a Material Adverse Effect (provided that for this Section 4.8 only, all references to the “Combined Business” in the definition of “Material Adverse Effect” shall be deemed to be replaced by “Acquired Companies”), (b) the Acquired Companies have conducted their respective businesses in the Ordinary Course of Business and (c) except for the Transactions, none of the Acquired Companies has taken any action that had it occurred after the date of this Agreement, would be prohibited by Section 7.2(b).
4.9 Taxes.
(a) Each of the Acquired Companies has timely filed all material Tax Returns required to be filed by it, and all such returns are true, correct and complete in all material respects. All material Taxes (whether or not shown on any Tax Returns) with respect to the Acquired Companies have either been paid or are reflected in accordance with GAAP in the most recent financial statements of the Acquired Companies.
(b) All material amounts of Taxes required to be withheld by any Acquired Company have been withheld and have been (or will be) duly and timely paid to the proper Taxing Authority.
(c) No deficiencies for any material amounts of Taxes have been proposed, asserted or assessed in writing against any Acquired Company that are still pending. Except as described on Schedule 4.9(c) of the Silgan Disclosure Schedules, no dispute, audit, investigation, examination, proceeding or claim by any Taxing Authority concerning any material Tax liability of any Acquired Company is currently in progress.
(d) There are no Liens with respect to any material amount of Taxes upon any of the assets of the Acquired Companies, other than Permitted Liens.
(e) No Acquired Company will be liable for any additional material amount of Taxes relating to any taxable period (or portion thereof) ending on or prior to the Closing Date (determined, in the case of any Straddle Period, in accordance with Section 7.9(d)), other than Taxes (i) reflected or reserved against in the Financial Statements (whether actual, deferred, contingent or disputed) or (ii) incurred in the Ordinary Course of Business since the Balance Sheet Date.
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(f) Since the date that is two (2) years prior to the date of this Agreement, no Acquired Company has been a “distributing corporation” or a “controlled corporation” in a distribution intended to qualify under Section 355(a) of the Code (or any similar provision of state, local or non-U.S. Law).
(g) No Acquired Company has participated in any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4(b)(2) (or any similar provision of state, local or non-U.S. Law).
(h) No waiver of any statute of limitations relating to Taxes that would reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole, for which any Acquired Company may be liable is in effect, and no written request for any such waiver is currently outstanding, other than, in each case, automatic extensions or waivers obtained in the Ordinary Course of Business.
(i) No Acquired Company has been informed in writing by any Governmental Body in a jurisdiction in which such Acquired Company does not file Tax Returns that such Acquired Company is or may be required to file any Tax Return in, or pay any Taxes that would reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole, to such jurisdiction.
(j) No Acquired Company is a party to or bound by any Tax sharing, Tax allocation, Tax indemnity or similar agreement or arrangement (other than customary commercial agreements the principal purpose of which does not relate to Taxes), and no Acquired Company has been a member of any affiliated group within the meaning of Section 1504(a) of the Code (or any similar affiliated, consolidated, combined, unitary or fiscal group or unity under any corresponding or similar provision of state, local or non-U.S. Law), in each case, other than any such group the common parent of which is an Acquired Company, or has any liability for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any corresponding or similar provision of state, local or non-U.S. Law), as a transferee or successor, or by Contract (other than customary commercial agreements the principal purpose of which does not relate to Taxes).
(k) No Acquired Company will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date, in each case, that would reasonably be expected to be material, individually or in the aggregate, to the Acquired Companies, taken as a whole, as a result of (i) any adjustment under Section 481 of the Code (or any similar provision of state, local or non-U.S. Law) by reason of a change in, or improper use of, any method of accounting for a taxable period ending on or prior to the Closing Date, (ii) any closing agreement described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law) executed on or prior to the Closing Date, (iii) any installment sale or open transaction disposition made on or prior to the Closing, (iv) any prepaid amount received, or deferred revenue recognized, on or prior to the Closing Date (other than amounts in the Ordinary Course of Business) or (v) any intercompany transaction or excess loss account described in Treasury Regulations Sections 1.1502-13 and 1.1502-19 (or any corresponding or similar provision of state, local or non-U.S. Law).
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(l) Each Acquired Company is, and has at all times since the Lookback Date been, resident for Tax purposes solely in its jurisdiction of organization and does not have, and has not at any time since the Lookback Date had, any branch, agency, permanent establishment or other taxable presence in any jurisdiction other than its jurisdiction of organization or incorporation.
(m) Each Acquired Company that is required by applicable Law to be registered for VAT purposes is duly so registered and has complied in all material respects with all applicable Laws relating to VAT.
(n) All transactions between or among any Acquired Company, on the one hand, and SHI or any of its Affiliates, on the other hand, and all intercompany transactions among the Acquired Companies, have been conducted on arm’s-length terms, and each Acquired Company has prepared and maintained all transfer pricing documentation required by applicable Law, in each case, in all material respects, and there are no outstanding rulings of, or ongoing disputes with, any Taxing Authority with respect to transfer prices of any Acquired Company that would reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole.
(o) Schedule 4.9 of the Silgan Disclosure Schedules sets forth the U.S. federal income tax entity classification of each Acquired Company, and no Acquired Company has pending or outstanding any entity classification election pursuant to Treasury Regulations Section 301.7701-3 other than as set forth thereon.
(p) All documents which are required to evidence title of any Acquired Company to any material asset held by it and which are liable to any Transfer Tax or are required to be stamped, filed or registered, have been duly and properly stamped, filed or registered and the appropriate Transfer Tax has been paid.
(q) No person has acquired a right to acquire shares or securities the exercise or disposal of which, or has acquired any shares or securities the acquisition or disposal of which, gave rise to or may give rise to a liability for Tax of any Acquired Company.
(r) None of the execution, completion or performance of this Agreement, nor any other event since the Balance Sheet Date, will result in (a) the withdrawal of any material Relief granted to any Acquired Company, (b) any material chargeable asset being deemed to have been disposed of and reacquired by any Acquired Company or (c) any Acquired Company becoming liable for any other similar material deemed disposal or degrouping charge.
(s) All claims made by any Acquired Company for the transfer or surrender of any Relief between members of the same Tax group (“Group Relief”) in the last six (6) years were valid when made and there are no circumstances which are likely to result in any such claims being denied, disallowed or withdrawn. Except as provided in the Financial Statements, no Acquired Company is or will be obliged to make any material payment for Group Relief in respect of any period ending on or before Closing.
(t) No Taxing Authority has agreed to operate any special arrangement or agreement (being an arrangement or agreement not based on a strict and detailed application of the relevant legislation) in relation to any Acquired Company’s Tax affairs, and no Acquired Company has entered into a ruling or similar agreement in relation to Tax with any Taxing Authority.
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(u) The Acquired Companies are, and have been, in material compliance with all escheat and unclaimed property Laws applicable to the Acquired Companies, have filed all material escheat and unclaimed property reports required to be filed by the Acquired Companies, and have turned to the appropriate Taxing Authority any property in their possession subject to any escheat and unclaimed property laws and required to be turned over.
(v) Since the Balance Sheet Date, no Acquired Company has, other than in the Ordinary Course of Business or in accordance with the Reorganization:
(i) prepared or filed any material Tax Return inconsistent with past practice; made (other than in the Ordinary Course of Business), amended or revoked any material election relating to Taxes or amended, retracted or re-submitted any material Tax Return;
(ii) requested any ruling or similar guidance with respect to material Taxes; entered into any closing agreement or similar agreement with respect to material Taxes;
(iii) settled, compromised or materially negotiated any material claim, audit, examination, dispute, litigation or assessment relating to material Taxes, or extended or waived the applicable statute of limitations with respect to any material Taxes or material Tax Return;
(iv) initiated or entered into any voluntary disclosure relating to Taxes of any Acquired Company;
(v) became a member or ceased to be a member of a group for any Tax purposes;
(vi) amended, revoked or surrendered any Relief; or
(vii) entered into any arrangement, agreement or commitment to do any of the foregoing.
4.10 Real Property.
(a) (i) Schedule 4.10(a)(i) of the Silgan Disclosure Schedules sets forth a true, complete and correct list of all material leases, subleases, licenses and occupancy agreements of real property located in the United States (“U.S. Leased Real Property”), in effect on the date of this Agreement, with respect to which any Acquired Company is the tenant, subtenant, licensee or occupant (individually, a “Real Property Lease” and, collectively, the “Real Property Leases”), and (ii) Schedule 4.10(a)(ii) of the Silgan Disclosure Schedules sets forth a true, complete and correct list of all locations of leased real property located outside of the United States (together with the U.S. Leased Real Property, the “Leased Real Property”). Subject to the Equitable Exceptions, the applicable Acquired Company has a valid, binding and enforceable leasehold interest under each of the Real Property Leases, free and clear of all Liens other than Permitted Liens, except as would not reasonably be expected to be, individually or in the aggregate, material
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to the Acquired Companies, taken as a whole. To the Knowledge of SHI, no event has occurred in the last six (6) months or condition exists as of the date hereof that with notice or lapse of time, or both, would constitute a material default by an Acquired Company under any of the Real Property Leases, other than defaults that have been cured or waived in writing. No Acquired Company has assigned, transferred or pledged any interest in any of the Real Property Leases.
(b) Schedule 4.10(b) of the Silgan Disclosure Schedules sets forth a true, complete and correct list of all real property owned by the Acquired Companies (“Owned Real Property”) and the record owner thereof. An Acquired Company owns good and valid title (and marketable title to the extent applicable) in fee simple to the Owned Real Property, free and clear of all Liens other than Permitted Liens. No Acquired Company is obligated or bound by any material options, obligations or rights of first refusal or contractual rights to sell, lease or acquire any real property (except under the Real Property Leases). Except as would not be, individually or in the aggregate, material to the Acquired Companies, taken as a whole, the use and occupancy of the Owned Real Property by the Acquired Companies and the conduct of the business thereat as currently conducted does not violate any Permitted Lien.
(c) Except as set forth on Schedule 4.10(c) of the Silgan Disclosure Schedules or as would not be, individually or in the aggregate, material to the Acquired Companies, taken as a whole, (i) neither the whole nor any part of the Owned Real Property is subject to any pending condemnation or other taking by any Governmental Body, and, to the Knowledge of SHI, no such condemnation or other taking is threatened or contemplated; (ii) the use and occupancy of the Real Property by the applicable Acquired Company and the conduct of the business thereat as presently conducted do not violate any applicable Laws (including zoning Laws); (iii) there are no leases, subleases, licenses, or other agreements granting to any Person the right of use or occupancy of any portion of the Owned Real Property; and (iv) to the Knowledge of SHI, all buildings, structures, facilities and improvements located on the Owned Real Property, including buildings, structures, facilities and improvements which are under construction comply with all applicable Laws. The Real Property constitutes all of the real property used by the Acquired Companies in the conduct of the business.
4.11 Personal Property. Except as disposed of in the Ordinary Course of Business, each Acquired Company has good, valid and marketable title to, or a valid leasehold interest in, all material items of tangible personal property and equipment necessary for the business or operations of the Acquired Companies and reflected on the Interim Financial Statements as being owned or leased by the Acquired Companies, free and clear of all Liens other than Permitted Liens. Each such item of material tangible personal property or equipment is, in all material respects, in reasonable operable condition and repair, subject to normal wear and tear, ongoing repairs or refurbishments in the Ordinary Course of Business and obsolescence in the Ordinary Course of Business.
4.12 Intellectual Property.
(a) Schedule 4.12(a) of the Silgan Disclosure Schedules contains a list of all the material patents, registered trademarks, registered copyrights, and Internet domain names, and pending applications for any of the foregoing that are owned by any Acquired Company. To the Knowledge of SHI, the registered or issued Intellectual Property set forth on Schedule 4.12(a) of the Silgan Disclosure Schedules is subsisting and valid. Except as would not be, individually or in the aggregate, material to the Acquired Companies, taken as a whole, an Acquired Company exclusively owns all Owned IP, free and clear of all Liens other than Permitted Liens.
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(b) Except as would not be, individually or in the aggregate, material to the Acquired Companies, taken as a whole, (i) none of the Acquired Companies or the operation of the businesses of the Acquired Companies infringe, misappropriate, or otherwise violate, and in the past three (3) years has infringed, misappropriated, or otherwise violated, the Intellectual Property of any third party, and there are no, and in the past three (3) years there have been no, pending Legal Proceedings or written charges, complaint, demands, or notices from any third party to any of the Acquired Companies, alleging the same or challenging the ownership by the Acquired Companies of or the validity or enforceability of any Owned IP and (ii) to the Knowledge of SHI, no third party is infringing, misappropriating, or otherwise violating, and has not in the past three (3) years infringed, misappropriated, or otherwise violated, any Owned IP, and in the past three (3) years, no Acquired Company has sent any written charges, complaint, demands, or notices to any third party alleging the same.
(c) Except as would not be, individually or in the aggregate, material to the Acquired Companies taken as a whole, (i) SHI and each of its Affiliates, on behalf of the Acquired Companies or the Business, takes commercially reasonable steps to maintain the confidentiality of trade secrets and other material confidential information included in the Owned IP; and (ii) each employee, consultant and contractor of SHI or any of its Affiliates (including the Acquired Companies) as of the date hereof or during any period since the Lookback Date who materially contributed to the development of any material Owned IP has executed a written Contract assigning all right, title and interest of such employee, consultant or contractor in such Intellectual Property to an Acquired Company and agreeing to confidentiality provisions protective of the confidential information of the Acquired Companies (unless such Owned IP is owned by an Acquired Company by operation of Law).
(d) SHI or a Retained Company is the sole and exclusive owner of all right, title and interest in and to the registered Licensed Trademarks. SHI has the right, power and authority to grant, on behalf of itself and the Retained Companies, the licenses and other rights granted under the IP License Agreement. Neither SHI nor any Retained Company has granted to any Person any license, right or interest in or to any Licensed Trademark that conflicts with the licenses and other rights granted to MetalCo and its Subsidiaries under the IP License Agreement. Except as would not be, individually or in the aggregate, material to the Acquired Companies, taken as a whole, there is no Legal Proceeding pending or, to the Knowledge of SHI, threatened alleging that any Licensed Trademark, or the use thereof, infringes, dilutes or otherwise violates the Trademarks or other rights of any Person or challenging the ownership, validity or enforceability of any Licensed Trademark.
(e) The Acquired Companies do not own any software that is material to the operation of the business of the Acquired Companies taken as a whole. The Acquired Companies do not own any machine learning, deep learning, and other AI technologies that are material to the operation of the business of the Acquired Companies taken as a whole and are not engaged in the training or commercialization of any such technologies that are, or are expected to be, material to the business of the Acquired Companies taken as a whole.
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(f) No Contract to which any Acquired Company is a party would, upon Closing, grant or purport to grant to any Person any material license, covenant not to sue, or other rights related to Intellectual Property owned by MetalCo or any of its Affiliates (other than the Acquired Companies). Taking into account the services under the Transition Services Agreement, all Intellectual Property used in or necessary to the conduct of the business of the Acquired Companies as currently conducted shall be owned or available for use by the Acquired Companies immediately after the Closing on terms and conditions substantially the same as those under which the Acquired Companies owned or used such Intellectual Property immediately prior to the Closing, except as would not be, individually or in the aggregate, material to the Acquired Companies, taken as a whole. No Retained Company owns any Intellectual Property that is material to the operation of the Business as conducted as of the date of this Agreement other than as listed on Schedule 4.12(f) of the Silgan Disclosure Schedules.
(g) The Acquired Companies’ IT Systems perform in a manner that permits the Acquired Companies to conduct their business or operations as currently conducted in all material respects and in the twelve (12) month period preceding the date of this Agreement, the Acquired Companies’ IT Systems have not suffered a malfunction or security breach that resulted in a material interruption of the conduct of the business of the Acquired Companies, except where the cause and impact on the business of the Acquired Companies has been remediated in all material respects.
4.13 Material Contracts.
(a) Schedule 4.13(a) of the Silgan Disclosure Schedules sets forth all of the following Contracts (including all amendments and supplements thereto) to which an Acquired Company is a party or by which it or any of its assets is bound (collectively, the “Material Contracts”):
(i) material collective bargaining agreements, labor Contracts and other Contracts with any works council, economic and social committee, labor union, association or other employee representative body representing any employee of an Acquired Company or to which any Acquired Company is a party or by which any Acquired Company is bound;
(ii) Contracts for the sale of all or a portion of any of the assets of an Acquired Company (x) within the last two (2) years or (y) which have ongoing covenants or agreements in effect in respect of any Acquired Company, in each case, for consideration in excess of $20,000,000 (other than sales or dispositions of inventory or other assets in the Ordinary Course of Business);
(iii) Contracts relating to any acquisition or disposition of any operating business, material assets or the share capital or other Equity Securities, in each case, (A) for consideration in excess of $20,000,000 and (B) that contain representations, warranties, covenants, indemnities or other obligations of such Acquired Company that are still in effect;
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(iv) Contracts in which an Acquired Company is a party in a joint venture, strategic alliance or general or limited partnership;
(v) Contracts containing any covenant restricting, impairing, prohibiting or limiting in any material respect the ability of an Acquired Company to solicit customers, compete in any business with any Person or in any geographic area or offer or sell any product or service of any Acquired Company to any Person;
(vi) Contracts relating to (i) the incurrence, assumption or guarantee of indebtedness with a principal amount in excess of $50,000,000 (other than (A) advances to employees for expenses or transactions with customers on credit, in each case, in the Ordinary Course of Business and (B) guarantees by any Acquired Company for the benefit of another Acquired Company) or (ii) any letter of credit, surety, performance and other bonds, bankers’ acceptances and similar facilities and guarantees (other than any letter of credit issued under the Silgan Credit Agreement), the undrawn portion of which is in excess of $20,000,000;
(vii) Contracts imposing a Lien on any material assets or properties of any Acquired Company, other than Permitted Liens;
(viii) Contracts containing a license to the Acquired Companies of Intellectual Property that is material to the business or operations of the Acquired Companies taken as a whole, and Contracts containing a license from the Acquired Companies of Owned IP material to the business or operations of the Acquired Companies taken as a whole, in each case, other than (A) licenses for open source software, (B) licenses or software-as-a-service agreements for off-the-shelf or commercially available software pursuant to substantially standard commercial terms, (C) non-exclusive licenses of Intellectual Property granted in the Ordinary Course of Business to or by customers or vendors of the Acquired Companies, (D) confidentiality or non-disclosure agreements entered into in the Ordinary Course of Business, or (E) Contracts for the purchase or lease of hardware or equipment and where software is pre-installed or embedded on such hardware or equipment;
(ix) Contracts under which Intellectual Property that is (or reasonably anticipated to be) material to the business or operations of the Acquired Companies taken as a whole has been or is agreed to be developed by any third party;
(x) Contracts which involve (or are reasonably expected to involve) the expenditure by an Acquired Company, or would result in payments to an Acquired Company, of more than $250,000,000 in any 12-month period that are not terminable by such Acquired Company without penalty on notice of one hundred eighty (180) days or less;
(xi) Contracts with (A) Material Customers or (B) Material Vendors;
(xii) individual employment agreements for any senior management team employee of an Acquired Company with total annual base salary in excess of $300,000;
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(xiii) Contracts (A) that grant any exclusive rights, “most favored nation”, purchase option or similar rights to the counterparty or (B) with suppliers that provide for an annual minimum volume purchase requirement in excess of $10,000,000;
(xiv) currency exchange, interest rate exchange, commodity exchange, hedges or similar Contracts, in each case with a value in excess of $50,000,000;
(xv) Contracts that prohibit or restrict (A) the payment of dividends or distributions with respect to the Equity Securities of any Acquired Company, (B) the pledging of any Equity Securities of any Acquired Company, or (C) the issuance of guarantees by any Acquired Company;
(xvi) Contracts that relate to any settlement of a Legal Proceeding or threatened Legal Proceeding in excess of $10,000,000, other than Contracts for which there are no continuing material obligations or liabilities;
(xvii) Contracts pursuant to which any Acquired Company leases any equipment or other tangible personal property involving aggregate payment reasonably expected to be in excess of $10,000,000 from or to any third party in any calendar year;
(xviii) (A) the Real Property Leases with annual rental and other payments in excess of $15,000,000 and (B) Contracts relating to construction costs in excess of $10,000,000 with respect to such Real Property Leases;
(xix) any Shared Contract which involves (or is reasonably expected to involve) the expenditure by an Acquired Company, or would result in payments to an Acquired Company, of more than $20,000,000 in any 12-month period;
(xx) Contracts relating to the SCF Programs with any Material Customer; and
(xxi) Contracts in respect of Related Party Arrangements.
(b) Each Material Contract is a legal, valid and binding obligation of the applicable Acquired Company and, to the Knowledge of SHI, of each counterparty thereto and is in full force and effect, subject to the Equitable Exceptions, except for such failures to be legal, valid and binding or in full force and effect that would not reasonably be expected to be material, individually or in the aggregate, to the Acquired Companies, taken as a whole. Each Acquired Company party to a Material Contract has performed in all material respects the obligations required to be performed by it under each Material Contract and none of the Acquired Companies, nor to the Knowledge of SHI, any other party thereto, is in material breach of, or in material default under, any such Material Contract, and no event has occurred within the last twelve (12) months that with notice or lapse of time or both would constitute such a material breach or material default thereunder by an Acquired Company, or, to the Knowledge of SHI, any other party thereto, except for such breaches and defaults that would not reasonably be expected to be material, individually or in the aggregate, to the Acquired Companies, taken as a whole. As of the date of this Agreement, no Acquired Company has received or delivered written notice of any material violation or default under any Material Contract. SHI has made available to MetalCo true and correct in all material respects copies of each Material Contract, in each case, as amended or otherwise modified and in
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effect through the date of this Agreement. Except as would not reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole, as of the date of this Agreement, no party to any Material Contract has exercised any termination, cancellation or non-renewal of rights with respect thereto and no such party has given written notice of termination, cancellation or non-renewal with respect to any Material Contract.
4.14 Employee Benefit Plans.
(a) Schedule 4.14(a) of the Silgan Disclosure Schedules sets forth a true, correct and complete list of each Benefit Plan and separately identifies each Foreign Benefit Plan and the non-U.S. jurisdiction applicable to such Foreign Benefit Plan. With respect to each Benefit Plan, SHI has made available to MetalCo correct and complete copies (to the extent applicable) of: (i) all plan documentation (or, with respect to any unwritten Benefit Plan, a written summary thereof), including all amendments thereto; (ii) the three most recent annual reports on Form 5500 (together with all accompanying schedules and financial statements) filed with the IRS; (iii) the most recent summary plan description and all summaries of material modifications thereto; (iv) each trust agreement and insurance or group annuity contract or policies and certificates of coverage; (v) annual testing (including nondiscrimination and coverage) results for the three most recently completed plan years; (vi) the most recent determination letter, advisory letter, or opinion letter issued by the IRS; and (vii) all non-routine correspondence received from or provided to the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Body during the past six (6) years.
(b) (i) All Benefit Plans that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Retirement Plan”) are so qualified and have received a currently effective favorable determination letter; and (ii) except as would not reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole, no event has occurred and no circumstances exist that would reasonably be expected to adversely affect the qualification of such Company Retirement Plan or result in a penalty under the Internal Revenue Service Closing Agreement Program if discovered during an IRS audit or investigation.
(c) Except as would not reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole, all Benefit Plans have been established, maintained, operated, and administered in accordance with their terms and applicable Laws. There are no material claims, lawsuits, audits, inquiries, examinations, investigations, or arbitrations (other than routine claims for benefits) pending or threatened in writing against, with respect to, or relating to any of the Benefit Plans.
(d) Except as set forth on Schedule 4.14(d) of the Silgan Disclosure Schedules, for the past six (6) years, no Acquired Company or ERISA Affiliate sponsors, contributes to, has an obligation to contribute to, or has any liability (including contingent liability) with respect to: (i) a plan subject to Title IV of ERISA, including any defined benefit plan (as defined in Section 3(35) of ERISA) or a plan subject to Section 302 of ERISA or Section 412 of the Code (any such plan other than a Multiemployer Plan, a “US Pension Plan”) or (ii) a multiple employer plan subject to Section 4063 or 4064 of ERISA. No Acquired Company sponsors, contributes to, has an obligation to contribute to, or has any liability (including contingent liability) with respect
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to a multiple employer welfare arrangement (as defined in Section 3(40)(A) of ERISA) or a voluntary employees’ beneficiary association under Section 501(c)(9) of the Code. Except as would not reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole, no Acquired Company nor any ERISA Affiliate has any liability as a result of a violation of COBRA.
(e) Schedule 4.14(e) of the Silgan Disclosure Schedules sets forth a true and complete list of each US Pension Plan. With respect to each US Pension Plan, (i) no Legal Proceeding has been initiated to terminate such plan; (ii) there has been no “reportable event” (as such term is defined in Section 4043(c) of ERISA); (iii) no liability under Title IV or Section 302 of ERISA or Section 412 of the Code has been incurred by an Acquired Company or any ERISA Affiliate that has not been satisfied in full, no condition exists that presents a risk to an Acquired Company or any ERISA Affiliate of incurring any such liability and no such liability will become a liability of an Acquired Company or any ERISA Affiliate; (iv) such US Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA do not exceed the current value of such plan’s assets, determined in accordance with the assumptions used for funding the plan pursuant to Section 412 and Section 430 of the Code for the applicable plan year; (v) no such US Pension Plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (vi) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made before the applicable due date; (vii) no such US Pension Plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA; (viii) there are no funding-based limitations (within the meaning of Section 436 of the Code) currently in effect; and (ix) the assets of each such US Pension Plan are sufficient to satisfy all obligations of such US Pension Plan if such US Pension Plan were to terminate as of the date of this Agreement.
(f) Schedule 4.14(f) of the Silgan Disclosure Schedules contains a list of each Multiemployer Plan to which an Acquired Company or any ERISA Affiliate sponsors, has sponsored, has any liability (including contingent liability), or contributes (or has an obligation to contribute to within the past six (6) years) including (i) the most recent estimate provided by the Multiemployer Plan of the withdrawal liability that would be assessed against such Acquired Company or ERISA Affiliate upon a withdrawal from such Multiemployer Plan and (ii) the annual contributions required to be made (and, if less, the amounts actually paid) by an Acquired Company or ERISA Affiliate to such Multiemployer Plan for the current plan year and the last plan year. Except as set forth in SHI’s Annual Report on Form 10-K for the fiscal year ended December 31, 2025, no Acquired Company nor any ERISA Affiliate has incurred or received notice of any claim of a “complete withdrawal” or a “partial withdrawal” (as such terms are defined in Sections 4203 and 4205, respectively, of ERISA) since the effective date of such Sections 4203 and 4205 with respect to any Multiemployer Plan. Except as set forth in SHI’s Annual Report on Form 10-K for the fiscal year ended December 31, 2025, with respect to each Multiemployer Plan, (i) all contributions have been made in all material respects as required by the terms of such plan, the terms of any applicable collective bargaining agreement and applicable Law, (ii) none of the Acquired Companies or ERISA Affiliates has any material Liability under Sections 4204 or 4212(c) of ERISA and (iii) none of the Acquired Companies or ERISA Affiliates has received any notification in writing that any such plan has been terminated, is insolvent (within the meaning of Section 4245 of ERISA) or is in endangered or critical status (within the meaning of Section 437
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of the Code or Section 305 of ERISA), and to the Knowledge of SHI no such plan is reasonably expected to be terminated, insolvent or in endangered or critical status. To the Knowledge of SHI, there has been no mass withdrawal (within the meaning of Section 4219(c)(1)(D) of ERISA) for which the Acquired Companies would reasonably be expected to have any material Liability. With respect to each Multiemployer Plan, none of the Acquired Companies or ERISA Affiliates has experienced a reduction in contribution base units in the three consecutive years prior to the date of this Agreement that would, if continued, reasonably be expected to result in a material partial withdrawal assessment, whether such liability is contingent or otherwise. None of the Multiemployer Plans has notified in writing any of the Acquired Companies or any ERISA Affiliates of any failure to satisfy minimum funding standards.
(g) With respect to each Benefit Plan for which a separate fund of assets is or is required to be maintained, full and timely payment and contribution has been made of all amounts due and required under the terms of each such Benefit Plan or applicable Law, except as would not reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole. All premiums, fees and administrative expenses required to be paid under or in connection with the Benefit Plans for the period on or before the Closing Date have been fully and timely paid, except as would not reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole. No fiduciary (within the meaning of Section 3(21) of ERISA) of any Benefit Plan subject to Part 4 of Subtitle B of Title I of ERISA has committed a breach of fiduciary duty with respect to that Benefit Plan that could subject an Acquired Company or an employee of an Acquired Company to any liability (including liability on account of an indemnification obligation), except as would not reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole. No Acquired Company has incurred any excise Taxes under Chapter 43 of the Code with respect to any Benefit Plan and nothing has occurred with respect to any Benefit Plan that could reasonably be expected to subject any Acquired Company to any such Taxes.
(h) No Acquired Company provides or has an obligation to provide, and none of the Benefit Plans provide, for post-employment medical, health, welfare or life insurance benefits for any current or former employee or any beneficiary of a current or former employee, except as required by COBRA. No Benefit Plan or Acquired Company provides, or has any obligation to provide welfare benefits to any Person who is not a current or former employee of an Acquired Company, or a beneficiary thereof.
(i) Each Acquired Company has in all material respects complied with the applicable provisions of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended, to the extent applicable, including the employer shared responsibility provisions relating to the offer of “affordable” health coverage that provides “minimum essential coverage” to “full-time” employees (as those terms are defined in Section 4980H of the Code and related regulations) and the applicable employer information reporting requirements under Section 6055 of the Code and Section 6056 of the Code.
(j) Each Benefit Plan that is or has been a nonqualified deferred compensation plan within the meaning of Section 409A of the Code has in all material respects been administered, operated and maintained in accordance with the requirements of Section 409A of the Code, and no Acquired Company is or has been required to withhold or pay any material amount of Taxes as a result of a failure to comply with Section 409A of the Code. No Acquired Company has any obligation to make a “gross-up” or similar payment in respect of any Taxes that may become payable under Section 409A of the Code.
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(k) All Benefit Plans subject to the Laws of any jurisdiction outside of the United States or which are maintained primarily for any current or former Acquired Company Employee or other service provider residing or working outside the United States (each, a “Foreign Benefit Plan”) (i) if they are intended to qualify for special tax treatment, meet, in all material respects, all requirements for such treatment and, to the Knowledge of SHI, there are no existing circumstances or events that have occurred that would reasonably be expected to affect adversely the special tax treatment with respect to such Foreign Benefit Plan, (ii) if they are intended to be funded or book-reserved, are fully funded or book reserved, as appropriate, based upon reasonable actuarial assumptions and the fair market value of the assets of each Foreign Benefit Plan, the liability of each insurer for any Foreign Benefit Plan funded through insurance, or the book reserve established for any such Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the date of this Agreement, with respect to all current and former participants in each such Foreign Benefit Plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign Benefit Plan, and (iii) if intended or required to be qualified, approved or registered with a Governmental Body, are and have been so qualified, approved or registered and nothing has occurred that would reasonably be expected to result in the loss of such qualification, approval or registration, as applicable, except in each case, as would not result in a material liability to the Acquired Companies, taken as a whole. Except as set forth on Schedule 4.14(k) of the Silgan Disclosure Schedules, no Acquired Company has been a party to, a sponsoring employer of, or otherwise is under any material liability with respect to any defined benefit pension scheme, any final salary scheme or any death, disability or retirement benefit calculated by reference to age, salary or length of service or any other item.
(l) Except as set forth on Schedule 4.14(l) of the Silgan Disclosure Schedules, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will, or could reasonably be expected to, either alone or in combination with any other event(s), (i) result in any payment becoming due, any cancellation of indebtedness, or any increase in compensation or benefits, in each case, to any current or former employee, officer, director or other service provider of any Acquired Company (including severance pay or similar compensation), including under any Benefit Plan, or (ii) result in the acceleration of the time of payment, funding or vesting of any benefits to any current or former employee, officer, director, or other service provider of the Acquired Companies. No amount paid or payable (whether in cash, in property, or in the form of benefits) in connection with the transactions contemplated hereby (either alone or in combination with another event) will be an “excess parachute payment” within the meaning of Section 280G of the Code. No Acquired Company has any obligation to make a “gross-up” or similar payment in respect of any Taxes that may become payable under Section 4999 of the Code.
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4.15 Labor.
(a) SHI has made available one or more lists, prepared in good faith from the books and records of SHI and the Acquired Companies, of all of the Acquired Company Employees, which lists are true, correct and complete in all material respects, as of the respective dates on which such lists were prepared. The Acquired Company Employees are sufficient to run the Business in substantially the same manner as prior to the Closing.
(b) The execution of this Agreement and the consummation of the Transactions will not require notification or consultation with any works council, economic and social committee, labor union, association or other employee representative body that represents any employees of the Acquired Companies, except for such notification or consultation the failure of which to obtain would not be, individually or in the aggregate, material to the Acquired Companies, taken as a whole.
(c) No union or labor organization has made a pending demand for recognition and, to the Knowledge of SHI, there is no organizing activity involving any Acquired Company. Since the Lookback Date, there has not been, nor is there pending or, to the Knowledge of SHI, threatened, any labor dispute between an Acquired Company and any works council, economic and social committee, labor union, association or other employee representative body or any strike, work stoppage, work slowdown or lockout involving any employee of, or affecting any Acquired Company that would be material to the Acquired Companies, taken as a whole. There are no material unfair labor practice charges or material grievances or complaints pending or threatened in writing by or on behalf of any employee or group of employees of any Acquired Company.
(d) The Acquired Companies are, and since the Lookback Date have been, in compliance in all material respects with all applicable Laws governing the employment of labor and the terms and conditions of employment including without limitation those relating to wages, hours, collective bargaining, holiday pay, working time, minimum wage, overtime and classification as exempt/non-exempt, paid and unpaid leaves, unemployment compensation, workers’ compensation, occupational health and safety, equal employment opportunity, discrimination (including, without limitation, race, sex, age and disability discrimination), pay equity, harassment, retaliation, whistleblower laws, plant closings, layoffs and reductions in force, background checks, immigration control, and classification of employees, workers and contractors. There are no, and since the Lookback Date there have been no, investigations pending or threatened in writing by any Governmental Body relating to the terms and conditions of employment of the Acquired Companies including all Laws relating to discrimination, fair labor standards, harassment, occupational health and safety, wrongful discharge, wages, hours, the Worker Adjustment and Retraining Notification Act of 1988 (the “WARN Act”) (or any similar state, local, or non-U.S. equivalent Laws), collective bargaining, civil rights, immigration and workers’ compensation.
(e) Since January 1, 2026, none of the Acquired Companies has (i) effectuated a “plant closing” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment, (ii) effectuated a “mass layoff” (as defined in the WARN Act), (iii) engaged in layoffs, furloughs, or employment terminations sufficient in number to trigger any collective consultation with employees or their representatives or the application of any similar state, local, or non-U.S. applicable Law, or (iv) issued any notification of a plant closing or mass layoff required by the WARN Act or any similar state, local, or non-U.S. equivalent applicable Law. To the Knowledge of SHI, none of the Acquired Companies has any current plans to undertake any action that would trigger the WARN Act or any similar state, local, or non-U.S. equivalent applicable Law.
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(f) The current employees of the Acquired Companies are authorized and have appropriate documentation to work in the country in which they are located. Since the Lookback Date, (i) no Acquired Company has received written notice of any pending or threatened investigation by any branch of the department of U.S. Immigration and Customs Enforcement (“ICE”), or other federal (or other local applicable) agency charged with administration and enforcement of federal (or other local applicable) immigration Laws concerning the Acquired Companies, and (ii) no Acquired Company has received any “no match” notices from ICE, the Social Security Administration, or the IRS.
(g) Since the Lookback Date, (i) no allegations of sexual harassment or sexual misconduct have been made in writing against any current or former officer or director or senior level management employees of any Acquired Company, and (ii) none of the Acquired Companies has entered into any settlement agreements related to allegations of sexual harassment or sexual misconduct by any current officer or director or senior level management employee of such Acquired Company. Since the Lookback Date, the Acquired Companies have reasonably investigated all written allegations of employment discrimination and sexual harassment, or other harassment, discrimination, or retaliation allegations against any current officer or director or senior level management employees of the Acquired Companies.
(h) Except as would not be reasonably expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole, there are no current pending or threatened in writing, and have not been since the Lookback Date, claims, charges, litigation, complaints, investigations or arbitrations relating to the employment or engagement, or termination thereof, of any current or former employee, worker, officer, director, or individual independent contractor of the Acquired Companies or otherwise alleging violation of any Law related to labor or employment or relating to labor or employment matters and, to the Knowledge of SHI, there are no circumstances likely to give rise to any such claims, charges, litigation, complaints, investigations or arbitrations.
(i) Since the Lookback Date, no Acquired Company has been a party to a relevant transfer for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006 or European Union Acquired Rights Directive (Council Directive 2001/23/EC) or local equivalent Laws affecting any employee or any other person engaged in the business of the Acquired Companies.
4.16 Litigation. Except as set forth on Schedule 4.16 of the Silgan Disclosure Schedules, (a) there are no, and since the Lookback Date there have been no, Legal Proceedings pending or threatened in writing against the Business or any Acquired Company, its assets or properties, or, to the Knowledge of SHI, its current or former directors, managers, officers or employees (in their capacities as such), (b) none of the Acquired Companies is subject to any Order, (c) since the Lookback Date, to the Knowledge of SHI, there have been no investigations of or inquiries made to any Acquired Company by any Governmental Body which remain pending, and (d) none of the Acquired Companies is subject to any judgment, settlement or similar arrangement that imposes any continuing obligation or restriction on such Acquired Company, in each case of clauses (a) through (d), which would be, individually or in the aggregate, material to the Acquired Companies, taken as a whole.
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4.17 Compliance with Laws; Permits.
(a) The Acquired Companies are, and since the Lookback Date have been, in compliance in all material respects with all Laws applicable to their respective businesses or operations. Since the Lookback Date, no Acquired Company has received any written notice from any Governmental Body (including the FDA or any comparable foreign Governmental Body) alleging any violation of applicable Law or containing any inspectional finding, deficiency notice, warning or untitled letter (including any FDA Form 483) or request for corrective or remedial action, in each case that would reasonably be expected to be material to the Acquired Companies, taken as a whole.
(b) Each Acquired Company holds, and since the Lookback Date has held, all Permits required for the conduct of its business as presently conducted, all such Permits are valid and in full force and effect, and no Acquired Company is in default or violation of any such Permit, in each case except as would not be material to the Acquired Companies, taken as a whole. To the Knowledge of SHI, no event has occurred that, with or without notice or lapse of time, would reasonably be expected to result in the revocation, suspension or adverse modification of any such Permit, in each case except as would not be material to the Acquired Companies, taken as a whole.
4.18 International Trade and Improper Payments.
(a) Except as would not reasonably be expected to be material to the Acquired Companies, taken as a whole, each Acquired Company is and has for the last five (5) years been in compliance with all applicable International Trade Laws and Regulations and there are no Legal Proceedings, prosecutions, enforcement actions or other inquiries pending or threatened against any Acquired Company under International Trade Laws and Regulations.
(b) No Acquired Company or any of its directors, officers, employees or, to the Knowledge of SHI, any other Person associated with or acting on behalf of any Acquired Company (i) is a Sanctioned Party or (ii) has directly or indirectly engaged in the last five (5) years (x) in any transactions or dealings not authorized or exempt under applicable International Trade Laws and Regulations with or involving any Sanctioned Parties or in any Sanctioned Jurisdictions, or (y) involving the proceeds of any criminal activity.
(c) No Acquired Company has been and, to the Knowledge of SHI, none of the Acquired Companies’ officers, directors, or employees has been, the subject or target of any material claim, Legal Proceeding, investigation, prosecution, enforcement action, or other inquiry related to noncompliance with or potential liability under International Trade Laws and Regulations.
(d) No Acquired Company has submitted in the last five (5) years a voluntary, involuntary or directed self-disclosure to any U.S. or other relevant Governmental Body regarding actual or potential noncompliance with International Trade Laws and Regulations.
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(e) During the last five (5) years, the Acquired Companies have implemented and maintain policies and procedures reasonably designed to ensure compliance in all material respects with International Trade Laws and Regulations.
(f) During the last five (5) years, (i) each Acquired Company has accurately and appropriately classified its products in compliance in all material respects with all applicable provisions of U.S. export control laws and regulations, including the Export Administration Regulations and the International Traffic in Arms Regulations, and the export control laws and regulations of any other applicable jurisdiction (collectively, “Export Control Laws”) and (ii) all duties, tariffs, penalties, interest and other charges and obligations related to the import and export of such products have been fully paid in a timely manner in compliance with all applicable Laws, except as would not otherwise reasonably be expected to, individually or in the aggregate, be material to the Acquired Companies, taken as a whole.
(g) During the last five (5) years, none of the Acquired Companies nor, to the Knowledge of SHI, any director, officer, employee or agent acting for or on behalf of such Acquired Company, has, directly or indirectly, in connection with the business of such Acquired Company, taken any action in violation of the U.S. Foreign Corrupt Practices Act of 1977 or any other similar anti-bribery Law (collectively, “Anti-Corruption Laws”) applicable to the Acquired Companies. The Acquired Companies have not during the last five (5) years, directly or indirectly, (i) made any voluntary, directed, or involuntary disclosure to any Governmental Body or similar agency with respect to any alleged act or omission arising under or relating to any non-compliance with any Anti-Corruption Laws; (ii) been the subject of any inquiry, investigation, or enforcement proceedings for violations of Anti-Corruption Laws; or (iii) violated or received in writing any notice, request, penalty, or citation for any actual or potential non-compliance with Anti-Corruption Laws.
(h) During the last five (5) years, none of the Acquired Companies nor, to the Knowledge of SHI, any director, officer, employee or agent acting for or on behalf of such Acquired Company has, directly or indirectly, in connection with the business of such Acquired Company, taken any action in violation in any material respect of any prohibition on money laundering. The Acquired Companies have not, during the last five (5) years, directly or indirectly (i) to the Knowledge of SHI, been the subject of any inquiry, investigation or enforcement proceedings for violations of prohibitions on money laundering or (ii) violated in any material respect, or received in writing any notice, request, penalty or citation for any actual or potential violations of, any prohibitions on money laundering.
4.19 Environmental Matters. Except as set forth on Schedule 4.19 of the Silgan Disclosure Schedules or except as would not be material to the Acquired Companies, taken as a whole:
(a) The Acquired Companies are, and since the Lookback Date have been, in compliance with all applicable Environmental Laws, including possessing (or timely applying for) all Permits required by applicable Environmental Laws.
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(b) No Acquired Company has received any written notice asserting or alleging against the Acquired Companies any violation of applicable Environmental Law since the Lookback Date or that otherwise remains unresolved.
(c) There is no Legal Proceeding under or pursuant to any applicable Environmental Law that is pending against any of the Acquired Companies or that has been threatened in writing against any of the Acquired Companies since the Lookback Date.
(d) There has been no Release by any of the Acquired Companies at, on, to, from, or under the Owned Real Property for which any Acquired Company is conducting any investigation or remediation or that could reasonably be expected to give rise to Liability of any Acquired Company pursuant to any Environmental Law or any Contract entered into with any other Person.
(e) Since the Lookback Date, no Acquired Company has transported or arranged for the treatment, storage, handling, disposal or transportation of any Hazardous Materials to any location off-site of any property currently or formerly owned, leased or operated by the Acquired Companies for which the foregoing would reasonably be expected to result in Liability to any Acquired Company under any Environmental Laws.
(f) No Acquired Company is subject to any Order imposed or issued by any Governmental Body, or any settlement agreement, under which there is any outstanding obligation under applicable Environmental Law on the part of the Acquired Companies.
(g) SHI has made available to MetalCo copies of all material environmental studies, including Phase I environmental site assessment reports and Phase II environmental investigation reports prepared since the Lookback Date by or on behalf of SHI or any of its Affiliates that are in the possession or reasonable control of SHI or any of its Affiliates related to the Real Property or compliance with or any liability under any Environmental Law with respect to the Acquired Companies.
4.20 Insurance. Schedule 4.20 of the Silgan Disclosure Schedules sets forth a true, complete and accurate list of each material insurance policy under which an Acquired Company is an insured or otherwise the principal beneficiary of coverage as of the date of this Agreement (collectively, the “Insurance Policies”). All Insurance Policies are valid and in full force and effect as of the date of this Agreement and all premiums due and payable thereon have been paid in full on a timely basis. With respect to each such Insurance Policy, (a) none of the Acquired Companies is in material breach or default (including any such breach or default with respect to the payment of premiums or the giving of notice of claims) and, to the Knowledge of SHI, no event has occurred which, with notice or the lapse of time or both, would constitute such a material breach or default, or permit termination or modification, under any such Insurance Policy and (b) during the 12-month period prior to the date of this Agreement, none of the Acquired Companies received a written notice of revocation, cancellation or termination other than in connection with ordinary renewals. The Acquired Companies are in compliance with the terms and conditions of the Insurance Policies in all material respects. As of the date of this Agreement, there are no pending, and since the Lookback Date, there have not been any material claims related to the Acquired Companies under any Insurance Policy with respect to which an insurer has denied or disputed its obligations in writing with respect to coverage, other than (i) any reservation of rights letter or similar communication, (ii) any request by an insurer for information or documentation or (iii) any dispute solely as to the quantum of a covered loss.
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4.21 Related Party Agreements. Except for (a) the Organizational Documents of the Acquired Companies, (b) advances to employees in the Ordinary Course of Business, (c) any Benefit Plans, (d) the Acquired Companies’ directors’ and officers’ liability insurance policy, (e) any intercompany liabilities or obligations solely between or among any of the Acquired Companies, (f) any indemnification agreement with any of the Acquired Companies’ directors or officers, (g) any agreement, arrangement, contract or commitment set forth on Schedule 7.16(a) or Schedule 7.16(b) of the Silgan Disclosure Schedules, (h) any agreement, arrangement, contract or commitment that will be terminated, settled or otherwise eliminated immediately prior to Closing pursuant to Section 7.16(a) or Section 7.16(b), or (i) any agreement, arrangement, contract or commitment set forth on Schedule 4.21, none of SHI or any of its Affiliates, or any member of the board of directors (or similar governing body), officer or Affiliate thereof, or, to the Knowledge of SHI, any individual in any such officer’s or director’s immediate family (i) is a party to any Contract or other commitment to which an Acquired Company is a party or by which any of their respective assets or properties is bound, (ii) to the Knowledge of SHI, has a material interest in any such agreement, arrangement, contract or commitment to which any of the Acquired Companies is a party or by which any of their respective assets or properties is bound, (iii) to the Knowledge of SHI, possesses, directly or indirectly, any financial interest in, or is a director, officer or employee of, any Person that is a material customer, vendor, lessor, lessee or competitor of the Business or any Acquired Company, or (iv) provides any material services to any Acquired Company (including any tax, legal, insurance, accounts or administrative services) (any of the foregoing clauses (i) to (iv), a “Related Party Arrangement”).
4.22 Brokers’ Fee. Except as set forth on Schedule 4.22 of the Silgan Disclosure Schedules, none of the Acquired Companies entered into any agreement with any Person that would obligate any Acquired Company to pay any commission, brokerage, finders’, financial advisory, investment banker or similar fee in connection with the consummation of the Transactions.
4.23 Privacy.
(a) Since the Lookback Date, except as would not be material to the Acquired Companies, taken as a whole (i) the Acquired Companies, and with respect to the Processing of Acquired Company Data, their Data Processors, comply and have complied with all Privacy Requirements, and each Acquired Company to the extent required under Privacy Requirements: (A) maintains a record of Processing activities, (B) provides required information to data subjects whose Personal Information is Processed and ensures that all Processing of Personal Information is carried out in reliance on a valid legal basis, (C) retains Personal Information only for as long as is necessary, (D) has in place written agreements with any third party which it has authorized to have access to Personal Information, including Data Processors, to ensure that the third party respects and maintains the confidentiality and security of the Personal Information and complies at all times with Privacy Requirements; (E) conducts vendor due diligence appropriate to the risk posed by a Data Processor; and (F) ensures all cross-border transfers of Personal Information are carried out in compliance with Privacy Requirements; (ii) the Acquired Companies have
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established an Information Security Program that is appropriately implemented and maintained, and there have been no material violations of the Information Security Program, (iii) the Acquired Companies have reasonably assessed and tested their Information Security Programs and IT Systems on a periodic basis and remediated all critical and high risks and vulnerabilities, (iv) any Security Incident experienced by the Acquired Companies or, to the Knowledge of SHI, their Data Processors, has been remediated in all material respects, and neither the Acquired Companies nor, to the Knowledge of SHI, their Data Processors, are currently experiencing any Security Incident, and all Security Incident notifications to any Persons or Governmental Bodies required under Privacy Requirements have been made, and (v) the Acquired Companies have not received a written notice, letter, or complaint, from a Person or Governmental Body alleging noncompliance or potential noncompliance with any Privacy Requirements.
(b) The Acquired Companies maintain and comply in all material respects with all necessary rights, authorizations, consents and other obligations to collect, Process, use, deploy, train, operate, develop, place on the market, and put into service, any machine learning, deep learning, and other AI technologies, in each case, as required by applicable Laws, Contracts and Privacy Requirements. Each of the Acquired Companies maintains, complies and has since the Lookback Date complied in all material respects with, policies and procedures designed to ensure that any machine learning, and other AI technologies are developed, trained, deployed, put into service, and used in a manner that complies with Privacy Requirements.
(c) The Acquired Companies maintain, and have since the Lookback Date maintained, cyber liability insurance.
(d) None of the Acquired Companies is subject to any legal obligation that, following the Closing, would prohibit the Acquired Companies from Processing any Personal Information in materially the same manner in which the Acquired Companies Processed such Personal Information immediately prior to the Closing.
4.24 Vendors and Customers.
(a) Schedule 4.24(a) of the Silgan Disclosure Schedules contains a list of the (i) ten (10) largest vendors of the Acquired Companies, taken as a whole (the “Material Vendors”), and (ii) ten (10) largest customers of the Acquired Companies, taken as a whole (the “Material Customers”), in each case for calendar years 2024 and 2025.
(b) None of the Acquired Companies has received, during the twelve (12) month period prior to the date of this Agreement, any written notice that any of the Material Vendors or Material Customers intends to (i) terminate, cancel or fail to renew any Contract, (ii) except as set forth on Section 4.24(b) of the Silgan Disclosure Schedules, in the case of any Material Customer, effectuate a material reduction in the aggregate amount of such Material Customer’s purchases or (iii) in the case of any Material Vendor, effectuate any reduction in the aggregate amount of products or services supplied to the Acquired Companies or any increase in the aggregate prices paid by the Acquired Companies, in each case that would reasonably be expected to have a material impact on the financial performance of the Acquired Companies, taken as a whole.
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4.25 Restructuring Projects.
(a) Schedule 4.25(a) of the Silgan Disclosure Schedules sets forth, as of June 30, 2026, a true, correct and complete list of each Restructuring Project, including: (i) a reasonably detailed description thereof and (ii) the current status and anticipated timeline for implementation and completion thereof.
(b) With respect to each Restructuring Project, (i) all information, consultation, advice and negotiation processes required with respect to any works council, economic and social committee, labor union, association or other employee representative body have been completed, or are being conducted, in compliance in all material respects with applicable Law and any applicable agreements with such bodies, (ii) all material notifications to and approvals of Governmental Bodies required in connection therewith have been timely made or obtained (or are in the process of being obtained) and (iii) all severance, social plan and other payments and benefits due and payable to affected employees have been timely paid or provided in all material respects.
4.26 Product Liability; Product Safety; Recalls. Except as would not be material to the Acquired Companies, taken as a whole, since the Lookback Date: (a) no product liability or warranty claim or demand has been asserted against or received by any Acquired Company with respect to any product designed, manufactured, processed, assembled, sold, supplied or distributed by any Acquired Company; (b) no Acquired Company has initiated, conducted or been required to initiate or conduct any recall, withdrawal or similar product safety action with respect to any such product, and no Acquired Company has received any material product safety notice or been subject to any material investigation relating to the safety of any such product; and (c) no material allegation has been made to any Acquired Company that any such product is defective or nonconforming. No material corrective or remedial action remains outstanding in connection with any quality, product safety or food contact compliance audit or inspection of any Acquired Company conducted since the Lookback Date.
4.27 Sufficiency of Assets. As of immediately following the Closing, after giving effect to and taking into account the Reorganization and all of the other Transaction Documents (including the Transition Services Agreement), and assuming the receipt of any consents required in connection with the Transactions as set forth on the Silgan Disclosure Schedules, the Acquired Companies will own or have the right to use in all material respects (including by means of ownership or rights pursuant to license or other contracts, including the other Transaction Documents), all of the assets, rights and properties of SHI and its Affiliates that are used or held for use in and necessary to conduct the Business substantially in the manner in which it is conducted as of the date of this Agreement and as of immediately prior to the Closing.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF METALCO
MetalCo hereby represents and warrants to SHI and A-VL Holdings that:
5.1 Organization and Good Standing. MetalCo is a Delaware limited liability company duly organized, validly existing and in good standing under the Laws of the State of Delaware and has all requisite limited liability company power and authority to own, lease and operate its properties, rights and assets and to carry on its business in all material respects as now conducted.
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5.2 Authorization of Agreement. MetalCo has all requisite limited liability company power and authority to execute and deliver this Agreement and each other Transaction Document to be executed by MetalCo in connection with the consummation of the Transactions (collectively, the “MetalCo Documents”), to perform its obligations hereunder and thereunder, and to consummate the Transactions. The execution, performance and delivery by MetalCo of this Agreement and the MetalCo Documents, and the consummation of the Transactions have been (or, with respect to any MetalCo Document to be entered into at the Closing, will have been as of the Closing) duly authorized by all necessary limited liability company action, and no other limited liability company action on the part of MetalCo is necessary to authorize the execution, delivery and performance of this Agreement and each of the MetalCo Documents, to perform its obligations hereunder and thereunder, and the consummation of the Transactions. This Agreement has been, and each of the MetalCo Documents will be at or prior to the Closing, duly and validly executed and delivered by MetalCo and assuming the due authorization, execution and delivery by the other parties hereto and thereto, this Agreement constitutes, and each MetalCo Document when so executed and delivered will constitute, the legal, valid and binding obligation of MetalCo, enforceable against MetalCo in accordance with its terms, except to the extent that enforceability thereof may be limited by the Equitable Exceptions.
5.3 Conflicts; Consents of Third Parties.
(a) None of the execution, performance and delivery by MetalCo of this Agreement or the MetalCo Documents, the consummation by MetalCo of the Transactions, or compliance by MetalCo with any of the provisions hereof or thereof will (i) conflict with or violate any provision of the Organizational Documents of MetalCo; (ii) conflict with, result in a breach or violation of or any loss of any benefit under or termination of, constitute a default under, result in the acceleration of, create in any Person the right to accelerate, terminate, modify or cancel, require any notice, authorization, approval or consent under, or result in the imposition of any Lien upon any of the rights, properties or assets of MetalCo under any Contract or Permit to which MetalCo is a party; (iii) conflict with or violate any Law or Order applicable to MetalCo or by which any of the properties or assets of MetalCo are bound, other than, in the case of clauses (ii) and (iii), such violation, conflict, breach, default, acceleration, termination, modification, cancellation, failure to give notice or obtain consent or Lien that would prohibit, restrain or otherwise materially delay MetalCo’s performance of this Agreement or ability to consummate the Transactions.
(b) Assuming the accuracy of the representations and warranties in Section 4.3 and Section 6.3, no consent, waiver, approval, Order, Permit or authorization of, or declaration or filing with, or notification to, any Person or Governmental Body is required on the part of MetalCo in connection with the execution, performance and delivery by MetalCo of this Agreement or the MetalCo Documents, the compliance by MetalCo with any of the provisions hereof or thereof, or the consummation by MetalCo of the Transactions, except for (i) any filings required pursuant to Section 7.3, (ii) any other consent, waiver, approval, Order, Permit or authorization the failure of which to obtain would not reasonably be expected to prohibit, restrain or otherwise materially delay the ability of MetalCo to consummate the Transactions, and (iii) those that may be required solely by reason of the Acquired Companies’ or SHI’s (as opposed to any other third party’s) participation in the Transactions.
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5.4 MetalCo Subsidiaries. At the Closing, after giving effect to the Reorganization, (a) each of the MetalCo Subsidiaries will be a duly organized and validly existing corporation or other entity in good standing to the extent such concepts are recognized under the Laws of the jurisdiction of its incorporation or organization, and will have all requisite corporate (or similar entity) power and authority to own, lease and operate its properties and to carry on its business as presently conducted, except where the failure to be so organized, existing and in good standing or to have such power and authority would not be, individually or in the aggregate, material to MetalCo, the MetalCo Subsidiaries and the Acquired Companies, taken as a whole, (b) each of the MetalCo Subsidiaries will be duly qualified or authorized to do business as a foreign corporation or entity and will be in good standing to the extent such concepts are recognized under the Laws of each jurisdiction in which the conduct of its business or the ownership of its properties requires such qualification or authorization, except where the failure to be so qualified, authorized or in good standing would not be, individually or in the aggregate, material to MetalCo, the MetalCo Subsidiaries and the Acquired Companies, taken as a whole, and (c) the outstanding shares or other Equity Securities of each of the MetalCo Subsidiaries will be validly issued, fully paid and non-assessable, to the extent such concepts are applicable to such Equity Securities, and such Equity Securities will not have been issued in violation of any preemptive rights (except to the extent provided by applicable Law and other than such rights as may be held by any MetalCo Subsidiary).
5.5 Litigation. There are no Legal Proceedings pending or, to the actual knowledge of the officers of MetalCo, threatened against MetalCo that would reasonably be expected to challenge, prohibit, restrain or otherwise materially delay MetalCo’s ability to enter into this Agreement or any other Transaction Document to which it is or will be a party or consummate the Transactions. MetalCo is not subject to any Order except to the extent the Order would not reasonably be expected to prohibit or restrain the ability of MetalCo to enter into this Agreement or any other Transaction Document to which it is or will be a party or consummate the Transactions.
5.6 Brokers’ Fees. No Person has acted, directly or indirectly, as a broker, finder or financial advisor for MetalCo in connection with the Transactions and no such Person is entitled to any fee or commission or like payment from MetalCo in respect thereof.
5.7 Debt Commitment Letter.
(a) On or prior to the date hereof, MetalCo has delivered to SHI true, correct, and complete copies of the executed commitment letters from each of the Debt Financing Sources, dated as of the date of this Agreement (together with the term sheets and any other annexes, exhibits, schedules and other attachments thereto, the “Debt Commitment Letter”, and the commitments under the Debt Commitment Letter, the “Debt Financing Commitments”), pursuant to which, and subject to the terms and conditions of which, the Debt Financing Sources have committed to lend the amounts set forth therein to MetalCo for the purpose of funding the Transactions (the “Debt Financing” and, together with the Equity Financing, collectively referred to as the “Financing”).
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(b) As of the date of this Agreement, the Debt Commitment Letter is in full force and effect and have not been withdrawn, rescinded, replaced or terminated, or otherwise amended, restated, amended and restated, waived, supplemented or otherwise modified in any respect, and no such withdrawal, rescission, replacement, termination, amendment, restatement, amendment and restatement, waiver, supplement or other modification is contemplated (except for amendments to the Debt Commitment Letter to add additional Debt Financing Sources), and no financing source has notified MetalCo of its intention to withdraw, rescind or terminate the Debt Financing Commitments. As of the date of this Agreement, the Debt Commitment Letter is a legal, valid and binding obligation of MetalCo and, to the actual knowledge of the officers of MetalCo, the other parties thereto, enforceable in accordance with their terms, except as the same may be limited by the Equitable Exceptions. As of the date of this Agreement, there are no written agreements, side letters or written arrangements (other than the Debt Commitment Letter) relating to the Debt Financing that would impose additional conditions precedent or other contingencies related to the funding of the full amount of the Debt Financing other than as expressly set forth in this Agreement or the Debt Financing Commitments (including any “market flex” provisions). As of the date of this Agreement, MetalCo is not in breach of any of the terms or conditions set forth in the Debt Commitment Letter. As of the date of this Agreement, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of MetalCo under any term or condition of the Debt Commitment Letter, and, assuming the satisfaction of the conditions set forth in Section 8.1 and Section 8.2 and the accuracy of the representations and warranties set forth in Article III and Article IV herein, MetalCo does not have any reason to believe that it will be unable to satisfy, on a timely basis, any condition to Closing to be satisfied by it contained in the Debt Commitment Letter, or the full amount of the Debt Financing will not be available to MetalCo on the Closing Date. MetalCo has fully paid or caused to be fully paid any and all commitment fees or other fees required by the Debt Financing Commitments or the Debt Commitment Letter to be paid on or before the date of this Agreement. Assuming the Closing is consummated in accordance with the terms of this Agreement and the satisfaction of the conditions set forth in Section 8.1 and Section 8.2, the aggregate proceeds from the Financing (net of original issue discount, upfront fees and other fees, premiums and charges payable in connection therewith, after giving effect to the maximum amount of “market flex” provided under the Debt Financing Commitments), if funded in accordance with the terms thereof, will be sufficient for satisfaction of all of MetalCo’s obligations under this Agreement and the Project Voyage Purchase Agreement in an amount sufficient to consummate the transactions contemplated hereby and thereby, including the Silgan Distribution Amount, the Debt Assumption (as applicable) and the payment of all associated costs and expenses (including the Silgan Transaction Expenses).
5.8 Solvency.
(a) Immediately after giving effect to the Transactions (including the Debt Assumption (as applicable) and the A-VL Holdings Contribution) and the transactions contemplated by the Project Voyage Purchase Agreement, and assuming the satisfaction of the conditions set forth in Section 8.1 and Section 8.2, and the accuracy of the representations and warranties set forth in Article III, Article IV and Article VI herein, the Acquired Companies on a consolidated basis will be Solvent. In completing the Transactions and the transactions contemplated by the Project Voyage Purchase Agreement, MetalCo does not intend to hinder, delay or defraud any present or future creditors of MetalCo or the Acquired Companies.
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(b) For purposes of this Agreement, “Solvent” means, when used with respect to MetalCo and the Acquired Companies, that, as of any date of determination:
(i) the fair saleable value (determined on a going concern basis) of the assets of MetalCo and the Acquired Companies on a consolidated basis shall be greater than the total amount required to pay their liabilities (including all liabilities, whether or not reflected in a balance sheet prepared in accordance with GAAP, and whether direct or indirect, fixed or contingent, secured or unsecured, disputed or undisputed);
(ii) MetalCo and the Acquired Companies shall be able to pay their debts, obligations, and liabilities in the Ordinary Course of Business as they become absolute and mature; and
(iii) MetalCo and the Acquired Companies on a consolidated basis shall not have unreasonably small capital for the operation of the businesses in which they are engaged or proposed to be engaged thereafter.
5.9 Non-Reliance. Except for the Express Representations expressly made by SHI and A-VL Holdings, and subject to the specifically bargained-for exclusive remedies as set forth in this Agreement, MetalCo represents and warrants to SHI and A-VL Holdings that it is not relying upon, and will not rely upon, (a) any representation or warranty, expressed or implied, at law or in equity, made by any Person in respect of SHI, the Company Shares, any Acquired Company, A-VL Holdings or SHI’s, the Acquired Companies’ or A-VL Holdings’ respective businesses, assets (including the Company Shares), liabilities, operations, prospects, or condition (financial or otherwise), including with respect to merchantability or fitness for any particular purpose of any assets, the nature or extent of any liabilities, the prospects of their respective businesses, the effectiveness or the success or profitability of any operations, or the accuracy or completeness of any confidential information memoranda, documents, projections, forecasts, opinions, advice, material, statement, data, or other information (financial or otherwise) regarding SHI, any Acquired Company or A-VL Holdings provided to, or otherwise made available to, MetalCo or its Representatives or made available to MetalCo and its Representatives in connection with the Transactions, including any “data rooms,” “virtual data rooms,” management presentations, or in respect of any other matter or thing whatsoever, and (b) any Person providing or not providing any information not specifically required to be provided or disclosed pursuant to the Express Representations.
ARTICLE VI
REPRESENTATIONS AND WARRANTIES OF A-VL HOLDINGS
A-VL Holdings hereby represents and warrants to SHI and MetalCo as of the date hereof that:
6.1 Organization and Good Standing. A-VL Holdings is a limited partnership duly organized, validly existing and in good standing under the Laws of the State of Delaware and has all requisite limited partnership power and authority to own, lease and operate its properties, rights and assets and to carry on its business in all material respects as now conducted.
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6.2 Authorization of Agreement. A-VL Holdings has all requisite limited partnership power and authority to execute and deliver this Agreement and each other Transaction Document to be executed by A-VL Holdings in connection with the consummation of the Transactions (collectively, the “A-VL Holdings Documents”), to perform its obligations hereunder and thereunder, and to consummate the Transactions. The execution, performance and delivery by A-VL Holdings of this Agreement and the A-VL Holdings Documents, and the consummation of the Transactions have been (or, with respect to any A-VL Holdings Document to be entered into at the Closing, will have been as of the Closing) duly authorized by all necessary limited partnership action on behalf of A-VL Holdings, and no other limited partnership action on the part of A-VL Holdings is necessary to authorize the execution, delivery and performance of this Agreement and each of the A-VL Holdings Documents, to perform its obligations hereunder and thereunder, and the consummation of the Transactions. This Agreement has been, and each of the A-VL Holdings Documents will be at or prior to the Closing, duly and validly executed and delivered by A-VL Holdings and assuming the due authorization, execution and delivery by the other parties hereto and thereto, this Agreement constitutes, and each A-VL Holdings Document when so executed and delivered will constitute, the legal, valid and binding obligation of A-VL Holdings, enforceable against A-VL Holdings in accordance with its terms, except to the extent that enforceability thereof may be limited by the Equitable Exceptions.
6.3 Conflicts; Consents of Third Parties.
(a) None of the execution, performance and delivery by A-VL Holdings of this Agreement or the A-VL Holdings Documents, the consummation by A-VL Holdings of the Transactions, or compliance by A-VL Holdings with any of the provisions hereof or thereof will (i) conflict with or violate any provision of the Organizational Documents of A-VL Holdings; (ii) conflict with, result in a breach or violation of or any loss of any benefit under or termination of, constitute a default under, result in the acceleration of, create in any Person the right to accelerate, terminate, modify or cancel, require any notice, authorization, approval or consent under, or result in the imposition of any Lien upon any of the rights, properties or assets of A-VL Holdings under any Contract or Permit to which A-VL Holdings is a party; (iii) conflict with or violate any Law or Order applicable to A-VL Holdings or by which any of the properties or assets of A-VL Holdings are bound, other than, in the case of clauses (ii) and (iii), such violation, conflict, breach, default, acceleration, termination, modification, cancellation, failure to give notice or obtain consent or Lien that would prohibit, restrain or otherwise materially delay A-VL Holdings’ performance of this Agreement or ability to consummate the Transactions.
(b) Assuming the accuracy of the representations and warranties in Section 3.4, Section 4.3 and Section 5.3, no consent, waiver, approval, Order, Permit or authorization of, or declaration or filing with, or notification to, any Person or Governmental Body is required on the part of A-VL Holdings in connection with the execution, performance and delivery by A-VL Holdings of this Agreement or the A-VL Holdings Documents, the compliance by A-VL Holdings with any of the provisions hereof or thereof, or the consummation by A-VL Holdings of the Transactions, except for (i) any filings required pursuant to Section 7.3, (ii) any other consent, waiver, approval, Order, Permit or authorization the failure of which to obtain would not reasonably be expected to prohibit, restrain or otherwise materially delay the ability of A-VL Holdings to consummate the Transactions, and (iii) those that may be required solely by reason of the Acquired Companies’ or SHI’s (as opposed to any other third party’s) participation in the Transactions.
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6.4 Litigation. There are no Legal Proceedings pending or, to the actual knowledge of A-VL Holdings, threatened against A-VL Holdings that would reasonably be expected to challenge, prohibit, restrain or otherwise materially delay A-VL Holdings’ ability to enter into this Agreement or any other Transaction Document to which it is or will be a party or consummate the Transactions. A-VL Holdings is not subject to any Order except to the extent the Order would not reasonably be expected to prohibit or restrain the ability of A-VL Holdings to enter into this Agreement or any other Transaction Document to which it is or will be a party or consummate the Transactions.
6.5 Brokers’ Fees. No Person has acted, directly or indirectly, as a broker, finder or financial advisor for A-VL Holdings in connection with the Transactions and no such Person is entitled to any fee or commission or like payment from A-VL Holdings in respect thereof.
6.6 Equity Commitment Letter. On or prior to the date hereof, A-VL Holdings has delivered to SHI and MetalCo a true, correct and complete copy of the executed Equity Commitment Letter to provide, subject to the terms and conditions therein, the Equity Financing. As of the date of this Agreement, the Equity Commitment Letter is in full force and effect and has not been withdrawn, rescinded, replaced or terminated, or otherwise amended, restated, amended and restated, waived, supplemented or otherwise modified in any respect, and no such withdrawal, rescission, replacement, termination, amendment, restatement, amendment and restatement, waiver, supplement or other modification is contemplated, and the Equity Financing Source has not notified A-VL Holdings of its intention to withdraw, rescind or terminate the Equity Commitment Letter.
6.7 Limited Guarantee. Concurrently with the execution of this Agreement, Guarantor has duly executed and delivered to SHI the Limited Guarantee. As of the date hereof, the Limited Guarantee is in full force and effect and is the valid, binding obligation of the Guarantor, enforceable in accordance with its terms, except as the same may be limited by the Equitable Exceptions, and no event has occurred which, with or without notice, lapse of time or both, would constitute a default on the part of the Guarantor.
6.8 Non-Reliance. Except for the Express Representations expressly made by MetalCo, and subject to the specifically bargained-for exclusive remedies as set forth in this Agreement, A-VL Holdings represents and warrants to SHI and MetalCo that it is not relying upon, and will not rely upon, (a) any representation or warranty, expressed or implied, at law or in equity, made by any Person in respect of SHI, the Company Shares, any Acquired Company, MetalCo or SHI’s, the Acquired Companies’ or MetalCo’s respective businesses, assets (including the Company Shares), liabilities, operations, prospects, or condition (financial or otherwise), including with respect to merchantability or fitness for any particular purpose of any assets, the nature or extent of any liabilities, the prospects of their respective businesses, the effectiveness or the success or profitability of any operations, or the accuracy or completeness of any confidential information memoranda, documents, projections, forecasts, opinions, advice, material, statement, data, or other information (financial or otherwise) regarding SHI, any Acquired Company or MetalCo provided to, or otherwise made available to, A-VL Holdings or its Representatives or made available to A-VL Holdings and its Representatives in connection with the Transactions, including any “data rooms,” “virtual data rooms,” management presentations, or in respect of any other matter or thing whatsoever, and (b) any Person providing or not providing any information not specifically required to be provided or disclosed pursuant to the Express Representations.
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ARTICLE VII
COVENANTS
7.1 Access to Information.
(a) Subject to the Confidentiality Agreement and applicable Law, prior to the Closing or earlier termination of this Agreement, SHI shall, and shall cause its Representatives to, provide MetalCo and its Representatives, upon reasonable advance written notice, with access during normal business hours to the information, assets, premises, properties, books (including pro forma Tax Returns and related work papers), Contracts, records and personnel of the Acquired Companies and the Business (including furnishing to MetalCo copies of such documents and information as MetalCo may reasonably request), for the purposes of consummating the Transactions, planning and preparing for the integration and transition of the businesses of the Acquired Companies following the Closing (including operational, financial, information technology, human resources and other functional integration and transition planning), and any other reasonable business purpose relating to the Transactions; provided that (i) any such access and activities shall be conducted in a manner not to unreasonably interfere with the business or operations of the Acquired Companies and (ii) MetalCo and its Representatives shall use commercially reasonable efforts to cooperate with SHI and its Representatives and to minimize any disruption to the Business. Notwithstanding anything herein to the contrary, no such access shall be permitted to the extent SHI determines in good faith following consultation with outside counsel that doing so would reasonably be likely to (A) require any Acquired Company to disclose information that would reasonably be expected to jeopardize attorney-client privilege, work product doctrine or similar privilege, or conflict with any confidentiality obligations to which such Acquired Company is bound, (B) violate any agreement to which any Acquired Company is a party or (C) violate any applicable Law which any Acquired Company is subject to; provided that in any such case, SHI shall use commercially reasonable efforts to provide MetalCo with a reasonably detailed description of the information not provided and shall cooperate in good faith with MetalCo to design and implement alternative disclosure arrangements (including, to the extent applicable, entry into a joint defense or common interest agreement, the seeking of a consent or waiver from any applicable third party, or the making of disclosure subject to redaction or on an outside counsel-only basis) that enable MetalCo to evaluate such information without the consequence described in clause (A), (B) or (C). All requests for such access shall be directed to such Person as the Acquired Companies may designate in writing from time to time (collectively, the “Designated Contacts”). Prior to the Closing, except in the Ordinary Course of Business (including pursuant to any existing commercial relationship) and not relating to or referencing the Transactions, without the prior written consent of SHI (which shall not be unreasonably withheld, conditioned or delayed, and which shall be deemed given if SHI has not objected in writing within two (2) Business Days following MetalCo’s written request therefor), (1) none of MetalCo, A-VL Holdings or their respective Affiliates or Representatives shall contact any employee, contractor, supplier, customer, landlord or other material business relationship of any Acquired Company,
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other than the Designated Contacts, and (2) MetalCo, A-VL Holdings and their respective Representatives shall have no right to perform invasive or subsurface investigations of the properties or facilities of the Acquired Companies; provided, however, that clause (1) shall not restrict or prohibit any of the following, provided that any such contacts or communications are coordinated by, and made together with, SHI: (w) contacts and communications with management and other employees of the Acquired Companies for purposes of integration and transition planning conducted in accordance with Section 7.1(b), (x) any calls or meetings with customers, suppliers or landlords of any Acquired Company that have been coordinated with SHI (such coordination not to be unreasonably withheld, conditioned or delayed), (y) contacts or communications made in connection with seeking or obtaining any consent, approval or clearance of, or responding to any inquiry or request from, any Governmental Body; or (z) discussions with members of management or other employees of the Acquired Companies regarding post-Closing employment, compensation, retention, equity or other incentive arrangements; provided, further, that clause (1) shall not restrict or prohibit any portfolio company or other investment of AIP, LLC or any of its Affiliates (or any of their respective Representatives) from contacting or communicating with any employee, contractor, supplier, customer, landlord or other business relationship of any Acquired Company (including any Acquired Company itself) in the ordinary course of business pursuant to, or in connection with entering into, any arm’s-length commercial arrangement (including, for the avoidance of doubt, the negotiation, execution and performance of the commercial arrangements set forth on Schedule 7.1(a) of the Silgan Disclosure Schedules), so long as such contacts or communications (a) are unrelated to the Transactions, (b) are not made at the direction of MetalCo or A-VL Holdings in connection with the Transactions and (c) do not involve the use of any information made available to MetalCo or A-VL Holdings in connection with the Transactions.
(b) Prior to the Closing, the Parties shall establish and maintain a steering committee (the “Steering Committee”) comprising employees of the Acquired Companies who are subject matter experts with respect to the key functional areas of the Business and the business of the Acquired Companies, together with Representatives of MetalCo and A-VL Holdings, in each case as reasonably agreed between the Parties. The Parties shall convene the Steering Committee on a regular basis and, unless otherwise agreed, not less frequently than once per month (including, at any Party’s reasonable request, in person), for the purposes of integration, separation and transition planning and business planning in respect of the Business and the Acquired Companies.
(c) For a period of seven (7) years after the Closing, MetalCo and SHI, as applicable, shall cause the Acquired Companies or the Retained Companies, as applicable, to (i) provide the other Party and its Representatives, upon reasonable advance written notice and under reasonable circumstances, reasonable access, at the other Party’s expense, under the supervision of the personnel of the Acquired Companies or the Retained Companies, as applicable, and in accordance with the reasonable procedures established by MetalCo or SHI, as applicable (including a requirement that any third-party Person for whom access is requested enter into a customary access letter), to the appropriate officers, books and records (including all electronic data related thereto) in respect of or relating to the Business during normal business hours, (ii) permit the other Party and its Representatives to make copies of any such books and records, (iii) furnish to the other Party and its Representatives any financial and operating data or other information relating to the Business as reasonably requested by the other Party to the extent necessary for the preparation of insurance claims, financial statements, regulatory filings, Tax
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Returns of the other Party or its Affiliates in respect of periods ending on or prior to the Closing, or in connection with any Legal Proceedings and (iv) if applicable, furnish to the other Party and its Representatives access to any assets of the Business (and any financial or other information relating thereto) upon reasonable advance notice and solely to the extent required to meet the other Party’s and its Affiliates’ contractual obligations; provided that such access does not unreasonably interfere with the business of MetalCo, SHI and their respective Affiliates, including the Business or the Retained Business, as applicable. Notwithstanding anything herein to the contrary, no such access shall be permitted to the extent it is determined upon consultation of outside counsel that doing so would reasonably be expected to (A) require MetalCo, SHI or any of their respective Affiliates to disclose information that would reasonably be expected to jeopardize attorney-client privilege, work product doctrine or similar privilege, or conflict with any confidentiality obligations to which MetalCo, SHI or any of their respective Affiliates is bound, (B) violate any agreement to which MetalCo, SHI or any of their respective Affiliates is a party or (C) violate any applicable Law which MetalCo, SHI or any of their respective Affiliates is subject to; provided that in any such case, MetalCo or SHI, as applicable, shall use its commercially reasonable efforts to provide the other Party with a reasonably detailed description of the information not provided and shall cooperate in good faith with the other Party to design and implement alternative disclosure arrangements (including, to the extent applicable, entry into a joint defense or common interest agreement) that enable the other Party to evaluate such information without the consequence described in clause (A), (B) or (C). MetalCo and SHI agree to cause the Acquired Companies and the Retained Companies, as applicable, to hold all the books and records relating to the Business existing on the Closing Date and not to destroy or dispose of any thereof for a period of seven (7) years from the Closing Date or such longer time as may be required by Law.
7.2 Conduct of the Business Pending the Closing.
(a) Prior to the Closing or earlier termination of this Agreement in accordance with Article IX, except (i) as required by applicable Law, (ii) as otherwise required or expressly contemplated by this Agreement (including the Reorganization). the other Transaction Documents, the Project Voyage Put Option Agreement or the Project Voyage Purchase Agreement, (iii) with the prior written consent of MetalCo (which consent shall not be unreasonably withheld, delayed or conditioned, provided that consent shall be deemed to have been given if MetalCo does not object in writing within two (2) Business Days from the date on which a request of such consent is properly delivered to MetalCo in writing in accordance with Section 11.5 of this Agreement) or (iv) as set forth in Schedule 7.2 of the Silgan Disclosure Schedules, SHI shall, and shall cause the Acquired Companies to conduct the Business and the respective businesses of the Acquired Companies in the Ordinary Course of Business. Notwithstanding the foregoing, no deviation from the Ordinary Course of Business by the Acquired Companies, and no action, activity or conduct of the Acquired Companies, shall constitute a breach of this Section 7.2(a) to the extent such deviation, action, activity or conduct is necessary and proportionate to, and consistent in nature and scope with, actions taken by similarly situated companies in the industries in which such entity operates to mitigate, remedy, respond to or otherwise address the Effects of any Emergency on the Business; provided that SHI shall have given MetalCo prompt written notice of (and, to the extent reasonably practicable, consulted with MetalCo in advance regarding) such deviation, action, activity or conduct.
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(b) Prior to the Closing or earlier termination of this Agreement in accordance with Article IX, except (i) as required by applicable Law, (ii) as otherwise required or expressly contemplated by this Agreement (including the Reorganization), the other Transaction Documents, the Project Voyage Put Option Agreement or the Project Voyage Purchase Agreement, (iii) with the prior written consent of MetalCo (which consent shall not be unreasonably withheld, delayed or conditioned; provided that consent shall be deemed to have been given if MetalCo does not object in writing within two (2) Business Days from the date on which a request of such consent is properly delivered to MetalCo in writing in accordance with Section 11.5 of this Agreement) or (iv) as set forth in Schedule 7.2 of the Silgan Disclosure Schedules, SHI shall not, and shall cause Silgan Holdings, SIHBV and the Acquired Companies not to, solely in respect of the Business (and, for the avoidance of doubt, excluding the Retained Business):
(i) transfer, issue, sell, redeem, repurchase, dispose of, subject to any Lien or authorize the issuance, sale, transfer, redemption, repurchase of or imposition of any Lien on any Equity Securities of any Acquired Company or rights or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for any Equity Securities of any Acquired Company, or any rights, warrants, calls, subscriptions or options to purchase any Equity Securities of any Acquired Company, in each case other than (A) as required or expressly contemplated by the Reorganization, the German Reorganization or in connection with the Debt Financing, (B) pursuant to existing equity compensation plans or in connection with customary employment arrangements in the Ordinary Course of Business, (C) any transfer, issuance, sale, redemption, repurchase or disposition of Equity Securities of any Acquired Company to or by another Acquired Company, or (D) any Lien on Equity Securities of any Acquired Company securing Assumed Indebtedness or Debt Financing, or any other Lien on such Equity Securities that is released at or prior to the Closing; it being understood and agreed that the grant of a Permitted Lien shall not violate this clause (i);
(ii) reclassify, combine, split, subdivide or amend the terms of any Equity Securities of any Acquired Company, except as required or expressly contemplated by the Reorganization or the German Reorganization;
(iii) declare, set aside, issue, make or pay any non-cash dividends or other distributions of non-cash assets in respect of any Equity Securities of the Acquired Companies, other than any non-cash dividends or distributions by any Acquired Company to another Acquired Company or as required or expressly contemplated by the Reorganization;
(iv) enter into, conduct, engage in or otherwise operate any new material lines of business not within the categories of business described in the definition of the “Business” (it being understood that a “line of business” does not include any individual product, product line, production line, format, size, application, technology, facility, customer, channel, geographic market or end market within or served by any such category), other than any new line of business that is incidental to any existing line of business of the Acquired Companies;
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(v) pledge or subject any material asset or property of the Acquired Companies to any Lien (other than any Permitted Liens) not in existence as of the date of this Agreement, in each case other than any pledge or Lien securing Assumed Indebtedness or Debt Financing, any Lien arising under any equipment lease, any purchase money Lien incurred in the Ordinary Course of Business or any other such Lien that is released at or prior to the Closing;
(vi) amend the Organizational Documents of the Acquired Companies or any of the Company Subsidiaries in any material respect, in each case other than as required or expressly contemplated by the Reorganization, the German Reorganization or the Debt Financing;
(vii) other than as required by a Benefit Plan or Contract set forth on Schedule 4.14(a) of the Silgan Disclosure Schedules, (A) materially increase the compensation or benefits payable to any employee of any Acquired Company having an annual base salary in excess of $300,000, other than in connection with annual merit or cost of living increases, promotions, market adjustments or bonus payments made in the Ordinary Course of Business (including awards of RSUs in the Ordinary Course of Business) or incentive compensation awards contemplated by the Interim Investors Agreement; (B) accelerate the timing of any payment or vesting of any compensation or benefit to any employee or other service provider of any Acquired Company having an annual base salary or annualized fee in excess of $300,000; (C) materially increase the funding of any Benefit Plan that is material to the Acquired Companies, taken as a whole, other than in connection with actuarial requirements or otherwise consistent with past practice as to timing and amount; (D) enter into, establish, amend in a manner that is materially adverse to the Acquired Companies, terminate, or provide any material discretionary benefits under any Benefit Plan (or any material benefit plan, program, policy, practice, agreement, or arrangement that would be a Benefit Plan if in effect on the date hereof), other than annual renewals of, or amendments to, health and welfare plans in the Ordinary Course of Business; (E) transfer the employment or service of any employee or other individual service provider from any Acquired Company to any Subsidiary of SHI (other than an Acquired Company), other than transfers of individual employees having an annual base salary of less than $200,000 in the Ordinary Course of Business; (F) terminate the services of the individual set forth on Schedule 7.2(b)(vii)(F) of the Silgan Disclosure Schedules other than as set forth in Schedule 7.2(b)(vii)(F); or (G) take any action that would reasonably be expected to trigger or result in a withdrawal (partial or complete) from any Multiemployer Plan;
(viii) recognize or establish any new works council, economic and social committee, labor union, association or other employee representative body as the bargaining representative for any employees of any Acquired Company, in each case except as required by applicable Law;
(ix) enter into, amend, modify, supplement or terminate any existing letters of credit, surety, performance and other bonds, bankers’ acceptances, securitization or receivables factoring arrangements and similar facilities and guarantees, in each case in a manner that could reasonably be expected to be adverse in any material respect to the Acquired Companies, taken as a whole;
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(x) agree to, request or adopt (A) any moratorium or suspension of payment of any Debt, (B) the appointment of a receiver, administrator, liquidator, assignee, trustee or other similar officer with respect to any Acquired Company or (C) an assignment for the benefit of creditors or an admission in writing of the inability of any Acquired Company to pay its debts as they become due;
(xi) other than with respect to Portola (Asia Pacific) Holding Company Ltd. and Portola Packaging Inc. Mexico, S.A. de C.V., adopt a plan of complete or partial liquidation, dissolution or restructuring of any Acquired Company, except as would not reasonably be expected to be material to the Acquired Companies, taken as a whole;
(xii) effect any acquisitions or dispositions or exclusive licensing arrangements (whether by merger, consolidation, amalgamation, stock purchase, asset purchase, reorganization, share exchange, business combination or other transaction that has the foregoing effect) in a single transaction or a series of related transactions of any assets, company or business (including equity interests), with an aggregate transaction value greater than or equal to $100,000,000, in each case excluding, for the avoidance of doubt, (A) any transaction solely among the Acquired Companies, (B) any acquisition or disposition of inventory, equipment or other assets in the Ordinary Course of Business, (C) the Transactions, the Reorganization and the other transactions contemplated by the Transaction Documents, (D) capital expenditures, or (E) any investment of cash or cash equivalents pursuant to the cash management practices of the Acquired Companies in the Ordinary Course of Business;
(xiii) make any material change to any of its present accounting methods or principles in any material respect, except as required by GAAP (or any interpretation thereof) or applicable Law;
(xiv) other than in the Ordinary Course of Business (but not inconsistent with the Reorganization or the German Reorganization) or as required or expressly contemplated by the Reorganization or the German Reorganization, make, change or revoke any material Tax election (including any entity classification election pursuant to Treasury Regulations Section 301.7701-3), adopt or change any Tax accounting method or period, file any material amended income Tax Return, initiate or enter into any voluntary disclosure agreement, closing agreement or similar agreement or arrangement with any Taxing Authority, request any Tax ruling, surrender any material Relief or right to claim a material refund of Taxes, or settle, compromise, concede or abandon any material Tax claim or assessment, in each case, relating to any Acquired Company;
(xv) (A) fail to make capital expenditures (excluding capital expenditures relating to restructuring activities) in respect of the Business in each fiscal year prior to the Closing in an aggregate amount at least equal to 90% of the pro forma average annual capital expenditures of the Business for fiscal years 2023, 2024 and 2025 (as set forth on Schedule 7.2(b)(xv) of the Silgan Disclosure Schedules), or (B) defer, cancel or materially delay any material maintenance capital expenditure or material capital project of the Business that has been approved as of the date of this Agreement, other than in the Ordinary Course of Business;
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(xvi) (A) amend, modify, renew, extend, terminate, or waive or release any material right under, any Material Contract or (B) reallocate any volumes, pricing, rebates, discounts, credits or other economic terms under any Shared Contract as between the Business and the Retained Business other than in each case consistent with past practice and the current allocation as between the Business and the Retained Business, and, in each case pursuant to the foregoing clauses (A) and (B), only if the taking of any such action described therein has the purpose or effect of conferring a material benefit on the Retained Business, SHI or any Retained Company at the expense of the Business or the Acquired Companies; provided that the foregoing shall not restrict the allocation of the Procurement Contracts (as defined in the Joint Procurement Term Sheet) in accordance with the Joint Procurement Term Sheet or the apportionment of Shared Contracts in accordance with Section 7.21;
(xvii) (A) solicit, encourage or entice any customer of the Acquired Companies to convert, in whole or in part, from metal packaging to another substrate for any existing product, other than in any case where a customer initiates an inquiry with SHI or any Retained Company without any solicitation by SHI or such Retained Company, or (B) solicit, encourage or entice any existing supplier to redirect its sales for any existing products in a manner that would confer a material benefit on the Retained Business, SHI or any Retained Company at the expense of the Business or the Acquired Companies;
(xviii) any amendment or modification that is adverse to the Acquired Companies or the Business in any material respect, renewal (other than any automatic renewal in accordance with its terms), replacement or termination (other than any expiration in accordance with its terms) of, or granting of a waiver of any material right under, any Material Contract with a Material Customer or a Material Vendor, in each case that would reasonably be expected to (A) result in a 20% price reduction (unrelated to pass throughs) with respect to any customer contract, (B) have an adverse impact on EBITDA of more than $25,000,000 with respect to any procurement contract (after taking into account, for the avoidance of doubt, any pass throughs to customers) or (C) otherwise have a material adverse impact on the Acquired Companies, taken as a whole; or
(xix) agree to do anything prohibited by this Section 7.2(b).
(c) Prior to the Closing or earlier termination of this Agreement in accordance with Article IX, SHI shall provide MetalCo with prompt written notice following SHI, Silgan Holdings, SIHBV or any Acquired Company taking any of the following actions, in each case, solely in respect of the Business (and, for the avoidance of doubt, excluding the Retained Business), except where any such matter is taken (i) as required by applicable Law, (ii) as otherwise required or expressly contemplated by this Agreement (including the Reorganization) or the other Transaction Documents or (iii) as set forth in Schedule 7.2 of the Silgan Disclosure Schedules:
(i) any reclassification, combination, split or subdivision of, or amendment of the terms of, any Equity Securities of any Acquired Company, other than any such action solely involving Acquired Companies or as required by the Reorganization or in connection with the Debt Financing;
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(ii) any assignment, transfer, license or lease to any Person, abandonment or sale of any assets of the Acquired Companies that are material to the Acquired Companies or the Business, taken as a whole, in each case other than (A) in the Ordinary Course of Business, (B) non-exclusive licenses of Intellectual Property, (C) any transaction solely among the Acquired Companies or (D) as required by the Reorganization or in connection with the Debt Financing;
(iii) other than in the Ordinary Course of Business, any hiring or engagement of any individual to be a service provider of any Acquired Company, in each case with respect to any individual having an annual base salary in excess of $300,000 or annualized fee in excess of $300,000;
(iv) any termination (other than terminations for cause, non-renewals, expirations, performance-related terminations or terminations in the Ordinary Course of Business) of the services of any individual service provider of any Acquired Company having an annual base salary or annualized fee in excess of $300,000;
(v) any acquisition of any ownership interest in real property providing for a purchase price or annual payments in excess of $20,000,000;
(vi) other than in the Ordinary Course of Business, any wind-down, idling, curtailment, closure, reduction or restructuring of any of the workforces, plants, offices, facilities or production lines of the Acquired Companies which would reasonably be expected to have an impact of at least $20,000,000, individually or in the aggregate, on the Acquired Companies; or
(vii) (A) any waiver, release, settlement or resolution by the Acquired Companies of any pending or threatened Legal Proceeding involving amounts in excess of $10,000,000 (net of reserves and insurance) or criminal penalties, or (B) commencement by the Acquired Companies of any Legal Proceeding involving amounts in excess of $10,000,000.
In addition, SHI shall (x) deliver to MetalCo each annual capital expenditure budget of the Business and the Acquired Companies approved by SHI after the date of this Agreement promptly after such budget is approved and (y) no later than sixty (60) days after the end of each fiscal quarter, deliver to MetalCo a summary of the aggregate capital expenditures made by the Acquired Companies during such fiscal quarter and for the fiscal year to date, in each case as compared to the applicable capital expenditure budget.
For the avoidance of doubt, the obligations set forth in this Section 7.2(c) are informational only, and no notice delivered pursuant to this Section 7.2(c) shall be deemed a request for the consent or approval of MetalCo or expand the operation of Section 7.2(a) or Section 7.2(b). No failure to deliver any notice pursuant to this Section 7.2(c) shall be deemed a breach of this Section 7.2(c) if such notice is delivered promptly (and in any event within two (2) Business Days) after SHI becomes aware of such failure.
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(d) Nothing in this Section 7.2 shall apply to, or otherwise restrict, the conduct of the Retained Business or any action taken by SHI or any of its Affiliates to the extent relating to the Retained Business.
(e) SHI shall, and shall cause SIHBV to, maintain and renew, extend or replace (on terms no less favorable to the beneficiaries and in an amount not less than EUR 30,000,000) the internal hard letter of comfort (harte Patronatserklärung) dated as of January 20, 2026, issued by Silgan International Holdings B.V. in favor of Silgan Closures GmbH and Silgan White Cap Manufacturing GmbH, such that support at least equivalent thereto remains in full force and effect until the Closing Date (or, if earlier, until such time as an equivalent arrangement reasonably acceptable to MetalCo has been put in place).
7.3 Regulatory Filings.
(a) Each Party shall make any regulatory filings that the Parties jointly and reasonably agree are required to be made with any Governmental Body for the Transactions. All filling fees in connection with any regulatory approvals required in connection with the Transactions (if any) shall be treated as Reorganization Costs.
(b) With respect to any filing, submission, response to any inquiry or request for information from any Governmental Body, or substantive communication relating to the Transactions or the transactions contemplated by the Project Voyage Purchase Agreement and the Project Voyage Put Option Agreement (collectively, the “Project Voyage Transactions”), each Party shall, and shall cause its Affiliates to, cooperate in all respects with each other Party, including by (i) affording each other Party and its outside counsel a reasonable opportunity to review and comment in advance thereon, and on the scope of and manner of responding to any such inquiry or request, and considering such comments in good faith, (ii) promptly furnishing copies thereof and of all substantive communications received from any Governmental Body and (iii) to the extent not prohibited by such Governmental Body, permitting each other Party and its outside counsel to attend and participate in any meeting or substantive call with such Governmental Body. Materials disclosed pursuant to this Section 7.3(b) may be designated “outside counsel only,” and may be withheld only to the extent necessary to preserve privilege or comply with applicable Law or any confidentiality obligation; provided that the providing Party shall use reasonable best efforts to make them available in redacted form or otherwise and shall not withhold them in their entirety.
(c) SHI and A-VL Holdings shall jointly control, working in good faith, the strategy, positions, timing, tactics and final decisions with respect to any action to obtain any clearance, approval or expiration of a waiting period from any Governmental Body under any regulatory filing in connection with the Project Voyage Transactions. Subject to Section 7.3(b), SHI shall control the strategy, positions, timing, tactics and final decisions with respect to any action to obtain any clearance, approval or expiration of a waiting period from any Governmental Body under any regulatory filing in connection with the Transactions (excluding, for the avoidance of doubt, the Project Voyage Transactions).
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7.4 Further Assurances. Subject to, and not in limitation of, Section 7.2, until the Closing or earlier termination of this Agreement in accordance with Article IX, each Party shall use (and SHI shall cause each of the Acquired Companies to use) its reasonable best efforts to take all actions as may be necessary or otherwise reasonably requested by the other Parties, in each case, consistent with the terms of this Agreement to carry out any of the provisions hereof or to make more fully effective the consummation of the Transactions.
7.5 Indemnification. From and after the Closing, MetalCo shall, and shall cause each Acquired Company to, indemnify, defend and hold harmless, to the fullest extent permitted under applicable Law or such Acquired Company’s Organizational Documents, the Persons who at or prior to the Closing were directors, managers, managing members or officers of any Acquired Company, with respect to all acts or omissions by them in their capacities as such or taken by them at the request of SHI or any Acquired Company, in each case, at or prior to the Closing. In addition, from and after the Closing, MetalCo shall, or shall cause the Acquired Companies to, advance any expenses (including fees and expenses of legal counsel) of any Indemnitee under this Section 7.5, as incurred, to the fullest extent permitted under applicable Law or such Acquired Company’s Organizational Documents; provided that the Person to whom expenses are advanced provides an undertaking to repay such advances to the extent required by applicable Law.
7.6 Publicity. The initial press release of the Parties regarding the Transactions and the execution of this Agreement shall be mutually agreed by the Parties. Thereafter, no Party shall, and such Party shall cause its Affiliates and Representatives not to, issue or cause the publication of any press release or public announcement concerning this Agreement or the Transactions without obtaining the prior written approval of the other Parties; provided that nothing herein will prohibit (a) any Party from issuing or causing publication of any such press release or public announcement to the extent that such disclosure is, upon advice of counsel, required by (x) applicable Law, (y) obligations pursuant to any listing agreement with or rules of any national securities exchange or interdealer quotation service or (z) the request of any Governmental Body (or, in the case of SHI, by the fiduciary duties of the board of directors of SHI given SHI’s status as a public reporting company as reasonably determined by such board of directors), in which case the Party making such determination (with respect to SHI, to the extent practicable given its status as a public reporting company under the federal securities Laws) will consult with the other Parties prior to making such disclosure and the disclosing Party shall consider in good faith any comments provided by the other Parties, (b) AIP, LLC and its Affiliates from (i) communicating in the ordinary course of business with their current or prospective limited partners or investors regarding this Agreement or the Transactions, including in connection with fundraising and reporting activities (provided that such limited partners or investors are subject to customary confidentiality obligations) or (ii) disclosing the consummation of the Transactions on their respective websites and otherwise in the ordinary course of their business (provided that such disclosure is consistent with the content of any press release or public announcement permitted by this Section 7.6) and that such disclosure does not include information regarding economic terms without the consent of MetalCo and SHI, or (c) any disclosure of information concerning this Agreement in connection with any dispute between the Parties regarding this Agreement, the other Transaction Documents or the Transactions.
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7.7 Employee Matters.
(a) For a period of twelve (12) months following the Closing (or for such shorter period of time during which an Acquired Company Employee remains employed with the Acquired Companies), MetalCo shall provide, or shall cause to be provided, to each Acquired Company Employee, (i) annual base salary or base wages, as applicable, and target short-term incentive compensation opportunities, in each case, that are no less favorable in the aggregate than the annual base salary or base wages, as applicable, and target short-term incentive compensation opportunities provided to such Acquired Company Employee immediately prior to the date of this Agreement and (ii) employee health and welfare benefits, retirement benefits and vacation benefits (but excluding, for the avoidance of doubt, severance or termination benefits), that are substantially similar in the aggregate to such employee benefits provided to such Acquired Company Employee immediately prior to the Closing. For purposes of eligibility, vesting, and level of benefits (but not benefit accrual under defined benefit plans, equity or equity-based plans, long-term incentive arrangements, or severance plans, policies, or practices) under any employee benefit plan of MetalCo established following the Closing Date in which Acquired Company Employees are eligible to participate following the Closing Date, except to the extent such credit would result in the duplication of benefits for the same period of service or such service was not recognized under an analogous Benefit Plan, MetalCo shall use commercially reasonable efforts to credit each Acquired Company Employee with his or her years of service with any Acquired Company and any predecessor entities based on such Acquired Company Employee’s hire date prior to Closing.
(b) Notwithstanding anything in this Agreement to the contrary and unless otherwise permitted under applicable Law, the terms and conditions of employment for any Acquired Company Employees covered by a collective bargaining agreement shall be governed by the applicable collective bargaining agreement until the expiration, modification or termination of such collective bargaining agreement in accordance with its terms or applicable Law.
(c) SHI shall, and shall cause its Affiliates to, (A) comply with all applicable Laws (including the Transfer Regulations) and collective bargaining agreements relating to their obligations to notify and consult with, obtain the authorization or approval of, or request the advice of, any works councils, economic and social committees, labor unions, associations or other employee representative bodies and relevant employees of any Acquired Company or their Representatives in connection with or otherwise in respect of the Transactions, including but not limited to the Reorganization, any Restructuring Projects and/or any Separation Activity, (B) provide MetalCo and its Affiliates with any required information as reasonably requested in respect of, or for the purpose of, such information or consultation process if required under applicable Law, (C) keep MetalCo and its Affiliates informed of the status of such information and consultation process and any material developments if required under applicable Law, including, to the extent that any written documents, presentations or other materials are to be provided to any works council, economic and social committee, labor union, association or other employee representative body and (D) if required under applicable Law, provide such materials to MetalCo and its Affiliates in advance and permit MetalCo and its Affiliates a reasonable opportunity to review and comment on such materials before they are presented or provided to the works council, economic and social committee, labor union, association or other employee representative body.
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(d) As a condition to the obligations of MetalCo or any of its Affiliates under this Section 7.7, SHI agrees that it shall, and shall cause its Affiliates and their respective service providers to use commercially reasonable efforts to, provide MetalCo, its Affiliates and their respective service providers with access to all information reasonably requested by MetalCo and its service providers to allow MetalCo to comply with the provisions of this Section 7.7.
(e) The provisions contained in this Section 7.7 shall not (i) be treated as an establishment, amendment or other modification of any Benefit Plan or other employee benefit plan, agreement or other arrangement, (ii) limit the right of MetalCo to terminate the employment of any employee at any time and for any reason or (iii) create any third-party rights, benefits or remedies of any nature whatsoever in any employee or other service provider of any Acquired Company (or any beneficiaries or dependents thereof) or any other Person that is not a Party.
7.8 Certain Obligations in Respect of Financing.
(a) Prior to the Closing, SHI shall use its reasonable best efforts to provide, and shall use reasonable best efforts to cause the Acquired Companies and their respective officers, managers, directors and employees to provide, and shall use its reasonable best efforts to direct its and their respective accountants, legal counsel and other Representatives to provide to MetalCo all cooperation that is reasonably requested by MetalCo in connection with the Debt Financing (it being understood that, solely for purposes of this Section 7.8, the term “Debt Financing” shall be deemed to include any high yield bonds issued in lieu of any credit facility contemplated by the Debt Commitment Letter), including the following:
(i) causing appropriate members of the Acquired Companies’ senior management and other Representatives of SHI or the Acquired Companies to participate in a reasonable number of meetings, conference calls, presentations, sessions with prospective Debt Financing Sources and rating agencies or other customary syndication activities at reasonable times and locations to be mutually agreed;
(ii) (A) furnishing MetalCo and the Debt Financing Sources with historical financial and other pertinent information regarding the Acquired Companies and each Company Subsidiary as may be reasonably requested by MetalCo to arrange or consummate the Debt Financing, in each case, which is as is customarily provided in connection with financings of the type contemplated by the Debt Financing; (B) assisting with the preparation of appropriate and customary materials for a rating agency presentation, a bank information memorandum, business projections, offering documents, a lender presentation and other usual and customary marketing and syndication materials required in connection with the Debt Financing and (C) having an officer of the Acquired Companies execute a customary authorization letter with respect to the bank information memorandum that authorizes distribution of information to prospective lenders and identifies any portion of the information contained therein relating to the Acquired Companies and each Company Subsidiary that contains material, non-public information within the meaning of federal securities Laws regarding the Acquired Companies and each Company Subsidiary or their respective securities;
(iii) facilitating the pledging of collateral; provided that no pledge shall be effective until the Closing;
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(iv) cooperating with MetalCo to take such corporate or other organizational action, subject to the occurrence of the Closing, as MetalCo may reasonably request to permit the consummation of the Debt Financing and cooperating in satisfying the conditions precedent set forth in the Debt Commitment Letter;
(v) requesting that the applicable administrative agent, collateral agent or trustee under the Silgan Debt Obligations provide customary payoff letters or Lien releases in respect thereof, as applicable, in a timely manner; and
(vi) assisting in the preparation of, and taking all necessary action to facilitate MetalCo’s execution and delivery of, definitive financial documents, including guarantee and collateral documents and customary closing certificates (including a certificate of a financial officer of the Acquired Companies with respect to solvency of the Acquired Companies on a consolidated basis; it being understood and agreed that such certificate with respect to solvency shall only be required if the representation and warranty set forth in Section 5.8 is true and correct on and as of the Closing Date after giving effect to the transactions contemplated by this Agreement) and other customary documents as MetalCo may reasonably request.
(b) Prior to the Closing, and provided that SHI and A-VL Holdings mutually agree to cause MetalCo to issue any high yield bonds in lieu of any credit facility contemplated by the Debt Commitment Letter, SHI, A-VL Holdings and MetalCo shall cooperate in good faith with (i) causing MetalCo to execute and deliver customary management representation letters to their independent auditors and (ii) causing MetalCo to cause its independent auditors to provide drafts and executed versions of customary auditor comfort letters (including “negative assurance” comfort and change period comfort) with respect to historical financial information regarding the Acquired Companies and each Company Subsidiary as necessary or customary for any offering or placement of debt securities pursuant to Rule 144A.
(c) Prior to the Closing, the Acquired Companies shall furnish MetalCo and the Debt Financing Sources (i) at least four Business Days prior to the Closing Date with all documentation and other information required by a Governmental Body with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations that is reasonably requested by MetalCo at least nine Business Days prior to the Closing Date; and (ii) the Required Information, and such other financial and other pertinent information regarding the Acquired Companies as may be reasonably requested by MetalCo to consummate the Debt Financing (it being understood and agreed that the Acquired Companies shall not be required to provide any information regarding any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other post-Closing pro forma adjustments (or otherwise prepare pro forma financial information or post-Closing financial information)).
(d) Notwithstanding anything in Section 7.8(a) or this Agreement to the contrary, until the Closing occurs, the cooperation requested by MetalCo pursuant to Section 7.8(a) shall not (i) unreasonably interfere with or adversely affect the ongoing operations or business of the Acquired Companies, or (ii) require SHI or any of its Affiliates (including the Acquired Companies) to (A) pay any commitment or other similar fee that would not be reimbursed at the Closing, (B) have or incur any liability in connection with the Debt Financing contemplated by the
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Debt Commitment Letter, including under any agreement or any document related to the Debt Financing that would not be reimbursed at the Closing, (C) enter into definitive agreements in respect of the Debt Financing that would be effective prior to the Closing (other than customary authorization letters), (D) take any action that would conflict with, violate or result in a breach of or default under any Organizational Documents of SHI or any of its Affiliates (including the Acquired Companies), any Transaction Document or any Law, (E) take any action that would be reasonably likely to subject any director, manager, officer or employee of SHI or any of its Affiliates (including the Acquired Companies) to any personal liability, (F) provide access to or disclose information that SHI determines in good faith would reasonably be likely to jeopardize any attorney client privilege of, or conflict with any confidentiality requirements applicable to, SHI or any of its Affiliates (including the Acquired Companies), (G) cause any director or manager of SHI or any of its Affiliates (including the Acquired Companies) to pass resolutions or consents to approve or authorize the execution of the Debt Financing which would be effective prior to the Closing Date or (H) reimburse any expenses or provide any indemnities.
(e) MetalCo shall promptly reimburse SHI for all reasonable and documented out-of-pocket costs and expenses incurred by SHI or any of its Affiliates (including the Acquired Companies) in connection with the cooperation contemplated by Section 7.8(a), including (i) reasonable attorneys’ fees and (ii) expenses of SHI’s accounting firms engaged to assist in connection with the Debt Financing. MetalCo shall indemnify and hold harmless SHI and its Affiliates (including the Acquired Companies), and their respective Representatives, from and against any and all liabilities or losses suffered or incurred by them in connection with the arrangement of the Debt Financing and any information utilized in connection therewith, other than to the extent that any such liabilities or losses result from the bad faith, gross negligence or willful misconduct of any of SHI, its Affiliates (including the Acquired Companies), or their respective Representatives or information provided by or on behalf of SHI or its Affiliates (including the Acquired Companies) for use in connection with the Debt Financing.
(f) SHI, the Acquired Companies and their respective Affiliates consent to the customary and reasonable use of the Acquired Companies’ logos in connection with any Debt Financing; provided that such logos are used solely in a manner that is not intended, or reasonably likely, to harm or disparage any of SHI, the Acquired Companies and their respective Affiliates or the reputation or goodwill of SHI, the Acquired Companies and their respective Affiliates.
(g) Without the prior written consent of MetalCo, SHI shall not, and shall not permit its Subsidiaries to, amend any of the Silgan Debt Facilities in a manner that would prevent the consummation of the Transactions or delay the consummation of the Transactions past the Termination Date.
(h) SHI will give MetalCo prompt written notice of the occurrence of any “Default” or “Event of Default” (each as defined in the Silgan Debt Documents as in effect as of the date of this Agreement) promptly after it obtains knowledge thereof.
(i) If the Transactions, including the incurrence of the debt and granting of Liens contemplated by the Debt Commitment Letter, are not permitted under any of the Silgan Debt Facilities, SHI shall either, in SHI’s sole discretion (i) repay, redeem, satisfy or otherwise discharge each such Silgan Debt Facility that would not permit the Transactions or (ii) refinance or obtain an amendment to each such Silgan Debt Facility that would not permit the Transactions such that any replacement or modified debt facility would permit the Transactions.
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(j) SHI shall have the right (but not the obligation), by delivering written notice to MetalCo and A-VL Holdings no less than ten (10) Business Days prior to the anticipated Closing Date, to elect to (i) incur, as of the Closing, (x) new third party debt arranged by SHI for an aggregate principal amount up to $1,000,000,000 (“Third Party SHI Debt”) or (y) if permitted under the Debt Financing, a portion of the Debt Financing in an aggregate principal amount up to $1,000,000,000 (such amount elected by SHI, the “SHI Debt Amount”), and (ii) have MetalCo assume in full, as of the Closing, the SHI Debt Amount pursuant to documentation in form and substance reasonably satisfactory to SHI, MetalCo and A-VL Holdings (the “Debt Assumption”) (provided, that in the case of clause (x), if required under the Debt Financing, MetalCo may immediately after the Debt Assumption repay such Third Party SHI Debt with proceeds of the Debt Financing). SHI, MetalCo and A-VL Holdings shall reasonably cooperate to take any actions required by the Debt Financing Sources to permit the Debt Assumption if so elected by SHI in accordance with this Section 7.8(j).
(k) SHI shall not, and shall not permit any of its Subsidiaries (as defined in the Silgan Credit Agreement) to, make any Investment (as defined in the Silgan Credit Agreement) if, as a result of such Investment, SHI would not have sufficient capacity under Section 9.05(xiii) of the Silgan Credit Agreement to make Investments to the extent necessary to consummate the Transactions.
7.9 Tax Matters.
(a) Certain Tax Elections; Reorganization. Except for the elections contemplated in the Reorganization Plan set forth on Exhibit F (which sets forth each election, including each U.S. Company classification election pursuant to Treasury Regulations Section 301.7701-3, to be made in connection with the Reorganization) or any elections contemplated in Schedule 7.2 of the Silgan Disclosure Schedules, no Party shall, and each Party shall cause its Affiliates not to, make, change or revoke any Tax election with respect to MetalCo or any Acquired Company that is inconsistent with the Intended Tax Treatment or the Reorganization Plan, in each case, without the prior written consent of each of SHI and MetalCo. Subject to Section 7.22, SHI shall, and shall cause its Affiliates to, effect each step of the Reorganization in accordance with the Reorganization Plan and in a manner consistent with the intended U.S. federal income Tax treatment of each such step set forth in the Reorganization Plan, and no Party shall take any position inconsistent therewith.
(b) Transfer Taxes. Any Transfer Taxes shall be treated as Reorganization Costs. The Parties required by applicable Law shall timely prepare and file any Tax Returns or other filings relating to Transfer Taxes, including any claim for exemption or exclusion from the application or imposition of any Transfer Taxes and MetalCo (or any Subsidiary thereof) shall pay, on behalf of the Party filing such Tax Return, any and all Transfer Taxes related thereto, subject to Section 11.1.
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(c) Termination of Tax Sharing Agreements. With respect to each of the Acquired Companies, SHI shall, and shall cause each of the Acquired Companies to, terminate, effective no later than the Closing, each Tax sharing, Tax allocation, Tax indemnity, Tax receivable or similar agreement or arrangement (other than (i) this Agreement and the other Transaction Documents and (ii) customary commercial agreements the principal purpose of which does not relate to Taxes) to which SHI or any Acquired Company is a party or by which any of them is bound, such that none of SHI or any Acquired Company shall have any liability or obligation thereunder from and after the Closing.
(d) Straddle Periods. For all purposes of this Agreement, in the case of any Straddle Period, the amount of Taxes attributable to the portion of such Straddle Period ending on the Closing Date shall (i) in the case of property, ad valorem and other similar Taxes imposed on a periodic basis, be deemed to be the amount of such Taxes for the entire Straddle Period multiplied by a fraction, the numerator of which is the number of days in the portion of such Straddle Period ending on (and including) the Closing Date and the denominator of which is the total number of days in such Straddle Period, and (ii) in the case of all other Taxes, be determined on the basis of an interim closing of the books as of the end of the Closing Date; provided that exemptions, allowances and deductions that are calculated on an annual basis shall be allocated on a per diem basis.
(e) Intended Tax Treatment. The Parties agree that, for U.S. federal (and applicable state and local) income Tax purposes, it is intended that: (i) prior to the Closing, MetalCo be treated as an entity disregarded as separate from Silgan Holdings; (ii) consistent with Situation 2 of Revenue Ruling 99-5, 1999-1 C.B. 434, (A) A-VL Holdings be treated as contributing the A-VL Holdings Investment Amount to MetalCo, as a newly formed partnership, in exchange for the MetalCo Units issued to A-VL Holdings, and (B) Silgan Holdings be treated as contributing all of the assets of MetalCo (subject to its liabilities) to such newly formed partnership in exchange for the MetalCo Units held by Silgan Holdings, in each case, in a transaction described in Section 721(a) of the Code; (iii) from and after the Closing, MetalCo be treated as a partnership for U.S. federal (and applicable state and local) income Tax purposes; (iv) if consummated, the Debt Assumption not be treated as a transfer of consideration pursuant to a sale described in Section 707(a)(2)(B) of the Code, whether by reason of the assumed liabilities constituting “qualified liabilities” (within the meaning of Treasury Regulations Section 1.707-5(a)(6), determined, in the case of the refinancing of the Silgan Debt Facilities in an amount equal to the SHI Debt Amount, in accordance with Treasury Regulations Section 1.707-5(c)) or one or more other exceptions under the Treasury Regulations promulgated under Section 707 of the Code, in each case, to the extent permitted under applicable Law; (v) to treat any distribution or other transfer of money by MetalCo to Silgan Holdings (including the Silgan Distribution Amount, any distribution pursuant to Section 2.1(g)(ii) and any payment pursuant to Section 2.5(d)) as a reimbursement of preformation capital expenditures under Treas. Reg. 1.707-4(d) (to the extent possible) or otherwise as a distribution not treated as part of a sale described in Section 707(a)(2)(B) of the Code, by reason of one or more exceptions under the Treasury Regulations promulgated under Section 707 of the Code, to the extent permitted under applicable Law, and any other payment (not described in the immediately preceding clause) made pursuant to Section 2.5, this Section 7.9 or Article X be treated as an adjustment to the consideration transferred to Silgan Holdings or as a capital contribution to, or distribution by, MetalCo, as applicable (including, in the case of any payment by SHI or Silgan Holdings of the Silgan SCF Shortfall Amount pursuant to Section 2.1(g) or any payment pursuant to Section 2.5(d), as an adjustment to, and a return of a portion of, the amounts distributed pursuant to Section 2.1(g)); (vi) the Remaining Share of SCF
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Offset Amount and the Priority Payment Amount (as defined in the MetalCo LLC Agreement), be treated as an adjustment to the A-VL Holdings Investment Amount, as applicable (clauses (i) through (vi), collectively, the “Intended Tax Treatment”). Except to the extent otherwise required pursuant to a “determination” (within the meaning of Section 1313(a) of the Code or any similar provision of state, local or non-U.S. Law), each Party shall, and shall cause its respective Affiliates to, prepare and file all Tax Returns consistently with the Intended Tax Treatment, and no Party shall take any position inconsistent with the Intended Tax Treatment on any Tax Return or in any audit, examination or other administrative or judicial proceeding.
(f) Tax Contests. MetalCo shall promptly notify SHI in writing upon receipt by MetalCo or any of its Subsidiaries (including any Acquired Company) of notice of any Tax Proceeding relating to any Pre-Closing Indemnified Taxes or any other Taxes for which SHI is or may be liable pursuant to Section 10.2(c) or Section 10.2(d) (a “Silgan Tax Contest”); provided that no failure or delay in providing such notice shall relieve SHI of its obligations under this Agreement, except to the extent SHI is actually and materially prejudiced thereby. SHI shall control the conduct and defense of any Silgan Tax Contest, at its sole cost and expense, unless SHI notifies MetalCo in writing within twenty (20) Business Days following receipt of the notice described in the immediately preceding sentence of its intent to not control such Silgan Tax Contest, which election shall include a written acknowledgment by SHI of its obligation to indemnify the MetalCo Indemnified Parties with respect to such Silgan Tax Contest pursuant to Section 10.2(c) or Section 10.2(d); provided, further, that (i) MetalCo shall have the right, at its own cost and expense, to participate in such Silgan Tax Contest (including through counsel and other advisors of its own choosing), (ii) SHI shall keep MetalCo reasonably informed on a current basis of the status of such Silgan Tax Contest (including by promptly providing copies of all material written correspondence with any Taxing Authority) and shall consider in good faith any comments provided by MetalCo and (iii) SHI shall not settle, compromise, concede or abandon such Silgan Tax Contest, in whole or in part, without the prior written consent of MetalCo (such consent not to be unreasonably withheld, conditioned or delayed). If SHI timely and validly elects to not control a Silgan Tax Contest, MetalCo shall control such Silgan Tax Contest, provided that SHI shall have the participation and information rights described in clauses (i) and (ii) of the immediately preceding sentence, mutatis mutandis, and MetalCo shall not settle, compromise, concede or abandon such Silgan Tax Contest without the prior written consent of SHI (such consent not to be unreasonably withheld, conditioned or delayed). Notwithstanding the previous sentences in this Section 7.9(f), nothing in this Agreement shall permit MetalCo to have any participation or any information rights related to any Silgan Tax Contest related to any affiliated, combined, consolidated, unitary or similar group that includes the SHI (or any Affiliate thereof), on the one hand, and an Acquired Company, on the other hand, whereby the SHI (or any Affiliate thereof) is the common parent of such affiliated, combined, consolidated, unitary or similar group; provided that SHI shall (i) keep MetalCo reasonably informed with respect to any issue therein relating to an Acquired Company (without any obligation to provide any consolidated or combined group Tax Return), (ii) not resolve any such issue in a manner binding on, or that would reasonably be expected to increase the Taxes of, any Acquired Company or MetalCo for any taxable period (or portion thereof) beginning after the Closing Date without MetalCo’s prior written consent (not to be unreasonably withheld, conditioned or delayed) and (iii) timely pay, or promptly discharge upon any claim for collection from any Acquired Company, all Taxes of any such group for which any Acquired Company could be liable under Treasury Regulations Section 1.1502-6 (or any similar provision of state, local or non-U.S. Law). In the event of any conflict between this Section 7.9(f) and Section 10.5, this Section 7.9(f) shall control with respect to any Silgan Tax Contest.
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(g) Tax Cooperation. Each Party shall, and shall cause its respective Affiliates to, reasonably cooperate in connection with the preparation and filing of any Tax Return or any Tax Proceeding of or with respect to any Acquired Company, the Reorganization and any election described in Section 7.9(a), including by furnishing relevant books and records, Tax Returns and related workpapers, making relevant personnel reasonably available and executing such powers of attorney and other documents as may be reasonably necessary in connection therewith. MetalCo and SHI shall, and shall cause their respective Affiliates to, retain all books and records relating to Taxes of the Acquired Companies for Pre-Closing Tax Periods until sixty (60) days following the expiration of the applicable statute of limitations (giving effect to any valid extensions thereof), and shall not destroy or dispose of any such books and records without first providing the other Parties with reasonable prior written notice and an opportunity to take possession or make copies thereof.
(h) Post-Closing Tax Actions.
(i) Without the prior written consent of SHI (such consent not to be unreasonably withheld, conditioned or delayed), MetalCo shall not, and shall cause its Subsidiaries (including the Acquired Companies) not to, (i) file (other than pursuant to Section 7.9(i)), amend, refile or otherwise modify any Tax Return of any Acquired Company for any Pre-Closing Tax Period, (ii) make, change or revoke any Tax election that has retroactive effect to any Pre-Closing Tax Period of any Acquired Company, (iii) initiate or enter into any voluntary disclosure or similar procedure with any Taxing Authority with respect to Taxes of any Acquired Company for any Pre-Closing Tax Period, (iv) agree to extend or waive any statute of limitations in respect of Taxes of any Acquired Company for any Pre-Closing Tax Period, (v) file any Tax Return for any Acquired Company for a Pre-Closing Tax Period (including a Straddle Period) in a jurisdiction in which such Acquired Company has not historically filed Tax Returns or (vi) change any accounting method or adopt any convention for any Acquired Company that shifts taxable income reportable in a post-Closing Tax period to a Pre-Closing Tax Period or shifts deductions or losses reportable from a Pre-Closing Tax Period to a post-Closing Tax period, in each case, to the extent such action could reasonably be expected to increase the liability of SHI (or any of its Affiliates) under this Agreement (including pursuant to Section 10.2(c) or Section 10.2(d)) or the amount of the Income Tax Liability Amount.
(ii) Without the prior written consent of MetalCo (such consent not to be unreasonably withheld, conditioned or delayed), SHI shall not, and shall cause its Affiliates not to, (A) file (other than pursuant to Section 7.9(i)), amend, refile or otherwise modify any Tax Return of or with respect to any Acquired Company, (B) make, change or revoke any Tax election with respect to any Acquired Company, (C) initiate or enter into any voluntary disclosure or similar procedure with any Taxing Authority with respect to Taxes of any Acquired Company, (D) agree to extend or waive any statute of limitations in respect of Taxes of any Acquired Company for any Pre-Closing Tax Period, (E) file any Tax Return for a Pre-Closing Tax Period for or with respect to any Acquired Company in a jurisdiction in which such Acquired Company has not historically filed Tax Returns or (F)
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change any accounting method or adopt any convention for or with respect to any Acquired Company that shifts taxable income reportable to in a Pre-Closing Tax Period to a taxable period (or portion thereof) beginning after the Closing Date or shifts deductions or losses reportable to a taxable period (or portion thereof) beginning after the Closing Date to a Pre-Closing Tax Period, in each case, to the extent such action could reasonably be expected to increase the Taxes of MetalCo or any of its Subsidiaries (including any Acquired Company) for any taxable period (or portion thereof) beginning after the Closing Date.
(iii) Notwithstanding the foregoing, any such action described in this Section 7.9(h) shall be permitted if and to the extent an Independent Accounting Firm jointly selected by MetalCo and SHI determines in good faith that the Tax position to which such action relates is not “more likely than not” to be sustained upon examination based on its technical merits or, to the extent applicable to the relevant Acquired Company, is not otherwise supportable under the applicable accounting standard, in each case, such that a reserve in respect of such Tax position would be required to be established on the applicable financial statements in accordance with such Acquired Company’s applicable accounting standard.
(i) Tax Returns.
(i) With respect to a Tax Return for an Acquired Company that is required to be filed by or with respect to any affiliated, combined, consolidated, unitary or similar group that includes SHI (or any Affiliate thereof), other than any such group the common parent of which is an Acquired Company, SHI shall prepare, or cause to be prepared, and file, or cause to be filed, such Tax Return. MetalCo shall prepare, or cause to be prepared, and file, or cause to be filed, all other Tax Returns of the Acquired Companies required to be filed after the Closing Date. All such Tax Returns shall be prepared in a manner consistent with past practice of the Acquired Company, except as otherwise required by applicable Law or otherwise set forth in this Agreement or the Reorganization Plan (including the German Reorganization).
(ii) MetalCo will use commercially reasonable efforts to provide SHI with copies of any such Tax Returns of the Acquired Company prepared by, or caused to be prepared by, MetalCo pursuant to Section 7.9(i)(i) for SHI’s review and comment at least thirty (30) days prior to the due date thereof (giving effect to any extensions thereto) in the case of income Tax Returns and as soon as practicable in the case of all other Tax Returns and MetalCo shall consider in good faith such revisions as are reasonably requested by SHI; provided that MetalCo shall not file any such Tax Return reflecting a position that would reasonably be expected to increase the liability of SHI (or any of its Affiliates) under this Agreement (including pursuant to Section 10.2(c) or Section 10.2(d)) or the amount of the Income Tax Liability Amount without the prior written consent of SHI (such consent not to be unreasonably withheld, conditioned or delayed).
(iii) Notwithstanding anything provided in this Section 7.9(i), nothing in this Agreement shall require SHI to provide MetalCo with a copy of any Tax Return with respect to any affiliated, combined, consolidated, unitary or similar group that includes SHI (or any Affiliate thereof), on the one hand, and an Acquired Company, on the other hand, whereby SHI (or any Affiliate thereof) is the common parent of such affiliated, combined, consolidated, unitary or similar group.
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(j) Tax Refunds. Any (i) refund of Taxes paid by an Acquired Company with respect to a Pre-Closing Tax Period (including any interest in respect thereof) received by MetalCo, the Acquired Company or any of their Affiliates and (ii) any amounts of overpayments of Tax with respect to a Pre-Closing Tax Period credited against Taxes which MetalCo, the Acquired Company or their Affiliates otherwise would be or would have been required to pay (either of the foregoing, “Tax Refunds”), shall be for the account of SHI, in each case solely to the extent such Taxes were economically borne by SHI (i.e., were indemnified by SHI pursuant to Section 10.2(c), Section 10.2(d) or taken into account as a liability in the calculation of the Silgan Distribution Amount, Working Capital, the Income Tax Liability Amount or Silgan Transaction Expenses), and excluding any Tax Refund (A) attributable to any Tax attribute generated in, or the carryback of any Tax attribute from, any taxable period (or portion thereof) beginning after the Closing Date or (B) taken into account as an asset in the calculation of Working Capital or as a reduction of the Income Tax Liability Amount, in each case, net of any Taxes thereon and expenses attributable thereto, and MetalCo shall pay over to SHI any such refund or the amount of any such credit within thirty (30) days after receipt or the application of any such refund or credit to reduce a Tax liability of MetalCo or an Acquired Company or any of their Affiliates. In connection with the foregoing, if SHI determines in good faith that an Acquired Company is entitled to file or make a formal or informal claim for a Tax Refund (including by filing an amended Tax Return or due to a change in Tax Law), SHI shall be entitled to request that MetalCo cause the Acquired Company or any of its Affiliates to file or make such formal or informal claim for such Tax Refund (other than any claim that MetalCo determines in good faith would reasonably be expected to adversely affect MetalCo or any Acquired Company for any taxable period (or portion thereof) beginning after the Closing Date), and SHI shall be entitled to control the prosecution of such claim for such Tax Refund. MetalCo shall use commercially reasonable efforts to cooperate, and cause the Acquired Company and its Affiliates to cooperate, with respect to such claim for such Tax Refund. MetalCo and SHI shall equitably apportion any refund, credit, offset or other similar benefit received or realized with respect to Taxes attributable to the Acquired Company for a Straddle Period in a manner consistent with the principles set forth in Section 7.9(d). Notwithstanding the foregoing: (i) prior to making any payment in respect of a Tax Refund pursuant to this Section 7.9(j), MetalCo shall (and SHI shall cause MetalCo to) use commercially reasonable efforts to provide to SHI and A-VL Holdings, as soon as reasonably practicable prior to making such payment, reasonable supporting calculations identifying the specific type and amount of the applicable Tax Refund and the amount to be paid, and MetalCo shall consider in good faith any reasonable comments made from SHI and A-VL Holdings in connection with the foregoing; and (ii) if MetalCo reasonably determines (as set forth in a written notice to SHI describing such determination in reasonable detail) that (x) an amount of Tax that was taken into account in the determination of Working Capital (as finally determined pursuant to Section 2.5), as determined under the same principles used for purposes of computing the Income Tax Liability Amount (including, for example, an entity-by-entity and jurisdiction-by-jurisdiction basis), to the extent applicable, is less than (y) the amount of such Tax as reported on an originally and timely filed Tax Return, as if such Tax Return was prepared and filed in accordance with the same principles used for purposes of computing the Income Tax Liability Amount, to the extent applicable, other than any such Tax liability arising from an action taken by MetalCo or any of its Affiliates following the Closing in breach of this Agreement, then (A) the amount of any payment
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otherwise required pursuant to this Section 7.9(j) shall be reduced (but not below zero) by the amount equal to the difference between the Tax determined in clause (y) above and the Tax determined in clause (x) above, (B) any amount of such Tax liability in excess of the amount applied pursuant to the foregoing clause (A) shall be carried forward and shall reduce (but not below zero) each subsequent payment otherwise required pursuant to this Section 7.9(j) until fully applied and (C) any amount by which a payment is reduced pursuant to this clause (ii) in respect of any Tax liability shall reduce, dollar-for-dollar and without duplication, any amount otherwise payable by SHI pursuant to Section 10.2(c) or Section 10.2(d) with respect to such Tax liability.
(k) Section 245A Elections. To the extent the election pursuant to Treasury Regulations Section 1.245A-5(e)(3) is permitted by applicable law for the taxable year which includes the Closing, each Party hereby delegates the authority to MetalCo to enter into a binding agreement described in Treasury Regulations Section 1.245A-5(e)(3)(i)(C)(2) on behalf of such Party (and any direct or indirect owners of such Party) in connection with any transfer of any “controlled foreign corporation” within the meaning of Section 957(c) of the Code to MetalCo in connection with the Transactions (including pursuant to the Reorganization and the MIHBV-MetalCo Bidco Transfer), in each case, (i) to the extent such Party (or, to the extent such Party is treated as a partnership for U.S. federal tax purposes, any direct or indirect owner of such Party) is a “U.S. tax resident” within the meaning of Treasury Regulations Section 1.245A-5 and a United States shareholder within the meaning of Section 951(b) of the Code and the applicable Section 958 regulations with respect to such controlled foreign corporation as of the end of the date such transfer is consummated and (ii) solely if MetalCo determines in good faith that entering into such binding agreement, and thereby electing to close the taxable year of such controlled foreign corporation as of the end of the date such transfer is consummated pursuant to Treasury Regulations Section 1.245A-5(e)(3)(i), is necessary or appropriate (including in light of any amendment, modification, withdrawal or invalidation of Treasury Regulations Section 1.245A-5 or any successor or supplemental guidance, including under Section 951(a)(2) of the Code). MetalCo shall provide SHI with written notice reasonably in advance of entering into any such binding agreement. Each Party shall, and shall cause its respective Affiliates to, reasonably cooperate in connection with the preparation, execution and filing of any such binding agreement and any related statements, schedules or filings.
(l) Austrian Documentation Support. Prior to the Closing, SHI shall, or shall cause one of its Affiliates (including, prior to the Closing, Silgan Holdings Austria GmbH) to, use commercially reasonable efforts to provide to MetalCo, in form and substance reasonably acceptable by MetalCo, documentation with respect to the recoverability of the shareholder loan between Silgan Holdings Austria GmbH and SIHBV as of the date of the loan waiver in the 2024 fiscal year, including the commercial and/or tax reasons for the loan waiver, a forecast of financial information (inclusive of cash flows) through the maturity date of the shareholder loan that supports the debt service coverage, and any additional financial analysis that supports the debt capacity of the issuer.
7.10 Silgan Disclosure Schedules. SHI may, at its option, include in the Silgan Disclosure Schedules items that are not material in order to avoid any misunderstanding, and such inclusion, or any references to dollar amounts, shall not be deemed to be an acknowledgement or representation that such items are material, to establish any standard of materiality or to define further the meaning of such terms or any other terms defined in Article I (and, in particular, the
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inclusion of any item in the Silgan Disclosure Schedules shall not, in and of itself, be a basis for taking such item into account in determining whether there has been a Material Adverse Effect). Information disclosed in any Silgan Disclosure Schedule shall constitute a disclosure for all purposes under this Agreement solely to the extent it is reasonably apparent on the face of such items that the information is relevant for such other purposes, notwithstanding any reference to a specific section, and all such information shall be deemed to qualify such sections. The disclosure of any matter or item in any Silgan Disclosure Schedule shall not be deemed to constitute an acknowledgment that any such matter is required to be disclosed.
7.11 Acknowledgments by MetalCo.
(a) MetalCo acknowledges, on its own behalf and on behalf of each of its Affiliates, that it has conducted an independent investigation and verification of the business, financial condition, results of operations, assets, liabilities, properties, contracts and prospects of the Business and the Acquired Companies, and, in making its determination to proceed with the Transactions, MetalCo has relied on the results of its own independent investigation and verification and on the Express Representations. Without limiting the generality of the foregoing, MetalCo acknowledges and agrees, on each of its own behalf and on behalf of its Affiliates, that neither the Acquired Companies, nor any other Person (including SHI), has made, is making or is authorized to make, any warranty or representation (whether in written, electronic or oral form), express or implied, as to (i) the accuracy or completeness of any information or (ii) the quality, merchantability, fitness for a particular purpose, or condition of the Business or the Acquired Companies’ business, operations, assets, liabilities, prospects or any portion thereof, except, in each case, solely to the extent expressly set forth in the Express Representations.
(b) For the avoidance of doubt, nothing in this Section 7.11 shall limit (i) claims for Fraud or (ii) any Party’s rights or remedies under this Agreement (including in respect of the Express Representations) or any other Transaction Document.
7.12 Pre-Closing Sharing of Data. The Parties acknowledge and agree that the Personal Information disclosed or made available by SHI or the Acquired Companies to MetalCo and A-VL Holdings (including certain of its Affiliates) in connection with this Agreement (the “Transaction Personal Information”) is necessary for the purposes of enabling MetalCo and A-VL Holdings to determine if MetalCo and/or A-VL Holdings shall proceed with the Transactions. MetalCo and A-VL Holdings shall, and A-VL Holdings shall cause its Affiliates that receive such Transaction Personal Information to, at all times, comply with Privacy Laws and not use, disclose or otherwise Process the Transaction Personal Information for any purposes other than those related to the performance of this Agreement or the consummation of the Transactions, or any other similar purposes or as required or permitted by Law. MetalCo and A-VL Holdings shall, and A-VL Holdings shall cause its Affiliates that receive such Transaction Personal Information to, take reasonable and appropriate steps to protect the Transaction Personal Information by applying a standard of care at least as protective of such information as MetalCo’s and A-VL Holdings’ current policies, practices, or procedures applicable to Personal Information, but in any event by applying at least a reasonable standard of care. If the Transactions do not proceed, MetalCo and A-VL Holdings shall, and A-VL Holdings shall cause its Affiliates that receive such Transaction Personal Information to, securely destroy the Transaction Personal Information within sixty (60) calendar days and upon SHI’s written request, provide written confirmation of the destruction of the Transaction Personal Information.
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7.13 Litigation Support. In the event that and for so long as SHI or any of its Affiliates (other than the Acquired Companies), MetalCo or any of its Affiliates or A-VL Holdings is prosecuting, contesting or defending any Legal Proceeding or claim by or against a third party or otherwise for legal compliance in connection with (a) the Transactions or the transactions contemplated under any other Transaction Documents or (b) any fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction on or prior to the Closing Date, MetalCo, A-VL Holdings and SHI, as applicable, shall, and shall cause their respective Affiliates (and its and their officers and employees) to, reasonably cooperate in good faith with MetalCo, A-VL Holdings and SHI, as applicable, and its counsel in such prosecution, contest or defense, including making reasonably available its personnel, and providing such testimony and access to its books and records as shall be reasonably necessary in connection with such prosecution, contest or defense upon reasonable advance notice and during normal business hours, all at the sole cost and expense of the requesting Party; provided that such cooperation does not interfere with normal business operations; provided, further, that each Party shall treat all such information as confidential and hereby agrees not to use such information for any purpose other than in connection with such Legal Proceeding, other investigation, charge, claim or demand by a third party and that to the extent production of such information is required in such Legal Proceeding, it is done on an attorneys’ eyes-only basis; and provided, further, that no Party shall be obliged to disclose or provide access to any documents, records or information subject to attorney-client privilege or attorney work-product protection. Requests for support must be made with reasonable notice and be limited to regular business hours. Notwithstanding the foregoing, each Party acknowledges and agrees that this Section 7.13 shall not apply with respect to any Legal Proceeding with respect to which any Party or its Affiliates are adverse to any other Party or any of its Affiliates (in each case, which shall exclude the Acquired Companies where SHI is the Party).
7.14 Title Insurance and Survey. For each parcel of Owned Real Property, MetalCo desires to obtain, at its sole cost and expense, an ALTA 2021 Form owner’s title insurance policy to be issued by a title company selected by MetalCo in its discretion, in each case: (a) having an effective date as of the Closing Date, (b) in amount, form and substance reasonably satisfactory to MetalCo, (c) insuring that the applicable Acquired Company has good and marketable fee simple title to the Owned Real Property, free and clear of all Liens except Permitted Liens, and (d) including such endorsements as MetalCo may request (which may include endorsements providing for extended coverage over the general title exceptions, zoning 3.1 endorsements (including parking and loading docks), contiguity endorsements, access endorsements, non-imputation endorsements, endorsements insuring compliance with any covenants, conditions and restrictions of record and tax parcel or tax number endorsements) (collectively, the “Title Policies”). In order to obtain the Title Policies, SHI (or the entity requested by the title company) shall use commercially reasonable efforts to assist MetalCo in obtaining the Title Policies; provided, however, that SHI shall deliver, or cause the applicable Acquired Company to deliver, such customary, and reasonably acceptable to the applicable Acquired Company, owner’s or title affidavits, gap indemnities and non-imputation affidavits as the title company may reasonably require in order to issue the Title Policies (including extended coverage and the endorsements described in clause (d)). MetalCo shall have the right to have a surveyor survey, at MetalCo’s sole
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cost and expense, the Owned Real Property prior to Closing following at least five Business Days’ prior written notice to SHI and SHI shall have a right to have a representative present when such surveyor is conducting such surveys, at SHI’s discretion. SHI’s performance of its obligations with respect to this covenant shall be deemed to have been satisfied as of the Closing so long as SHI has not materially breached its obligations under this Section 7.14.
7.15 Third-Party Consents. Each of SHI and MetalCo shall cooperate with one another to (a) determine whether any actions, consents, filings, notices, approvals, or waivers are required to be obtained from, or given to, (i) any third parties under any Material Contract in connection with the consummation of the Transactions or (ii) required under the Transition Services Agreement and (b) take such actions required in connection therewith in a timely manner. SHI shall, and SHI shall cause the Acquired Companies to, use reasonable best efforts to seek to obtain the consents, filings, notices, approvals, or waivers with respect to Material Contracts set forth on Schedule 7.15 of the Silgan Disclosure Schedules (and, upon the reasonable request of SHI, MetalCo shall, and shall cause its Affiliates to, reasonably cooperate with SHI and the Acquired Companies in connection therewith), and shall keep MetalCo and A-VL Holdings reasonably informed of the status thereof; provided that obtaining any such consents, filings, notices, approvals, or waivers shall not be deemed to be conditions to the obligations of the Parties to consummate the Transactions.
7.16 Intercompany Accounts and Intercompany Arrangements.
(a) Immediately prior to the Closing, all intercompany balances and accounts (other than intercompany balances and accounts set forth in Schedule 7.16(a) of the Silgan Disclosure Schedules (the “Surviving Intercompany Accounts”)) between SHI and any of its Affiliates (other than the Acquired Companies), on the one hand, and MetalCo and any Acquired Company, on the other hand, shall be settled or otherwise eliminated in such a manner as SHI shall determine in its sole discretion (including by SHI or any of its Affiliates removing from MetalCo or any Acquired Company any Cash Amounts or funds from cash pools by means of dividends, distributions, contribution, the creation or repayment of intercompany debt, increasing or decreasing of cash pool balances or otherwise); provided that, without duplication, all Taxes and other Liabilities incurred in connection therewith shall be for the account of SHI or its Affiliates (other than the Acquired Companies). Intercompany balances and accounts solely among the Acquired Companies shall not be affected by this provision. Notwithstanding anything to the contrary in this Agreement, SHI may, or may cause any of its Affiliates (including the Acquired Companies) to, pay, prepay, reduce or otherwise discharge any Debt. For the avoidance of doubt, none of MetalCo or any Acquired Company shall, following the Closing, have any obligation to pay to SHI or any of its Affiliates any amounts whatsoever in respect of such intercompany balances and accounts (other than the Surviving Intercompany Accounts) referred to in this Section 7.16 and none of SHI or any of its Affiliates shall, following the Closing, have any obligation to pay to MetalCo or any Acquired Company or any of its or their respective Affiliates any amounts whatsoever in respect of such intercompany balances and accounts (other than the Surviving Intercompany Accounts) referred to in this Section 7.16.
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(b) Immediately prior to the Closing, except for the Transaction Documents to be entered into in connection with this Agreement or as set forth on Schedule 7.16(b) of the Silgan Disclosure Schedules, all arrangements, understandings or Contracts, including all obligations to provide goods, services or other benefits, between SHI or any of its Affiliates (other than the Acquired Companies), on the one hand, and any Acquired Company, on the other hand, shall automatically be terminated without further payment or performance and cease to have any further force and effect, such that no party thereto shall have any further obligations or Liabilities therefor or thereunder.
(c) Immediately prior to the Closing, SHI shall, and shall cause its Affiliates to, (a) terminate, or cause to be terminated, the participation of each Acquired Company in each cash pooling, zero-balancing, cash concentration, notional pooling or similar intercompany treasury arrangement (including by removing from any such arrangement any Cash Amounts or funds of the Acquired Companies by means of dividends, distributions, contributions, the creation or repayment of intercompany debt, increases or decreases of cash pool balances or otherwise), with any Liabilities and Taxes arising from such settlement or termination being for the account of SHI, and (b) establish standalone bank accounts for the Acquired Companies to the extent set forth on Schedule 7.16(c) of the Silgan Disclosure Schedules, such that, from and after the Calculation Time, no cash of any Acquired Company is swept to, pooled with or commingled with accounts of SHI or any of its Affiliates (other than MetalCo and the Acquired Companies).
7.17 Financial Obligations.
(a) At or prior to the Closing, each of MetalCo and SHI shall, and shall cause their respective Affiliates to, use commercially reasonable efforts to, effective as of the Closing, terminate or cause to be terminated the outstanding letters of credit, surety, performance and other bonds, bankers’ acceptances and similar facilities and guarantees entered into by or on behalf of SHI or any of its Affiliates (other than the Acquired Companies) in connection with, for the benefit of, or relating to the Business, the Acquired Companies or the assets of the Acquired Companies (collectively, the “Credit Enhancements”), to the extent set forth on Schedule 7.17(a) of the Silgan Disclosure Schedules or entered into between the date hereof and the Closing Date in the Ordinary Course of Business and in accordance with Section 7.2 (such Credit Enhancements, the “Scheduled Credit Enhancements”), in each case, without Liability to SHI or any of its Affiliates, or, subject to the written consent of MetalCo, cause an Acquired Company to (i) arrange for substitute letters of credit, surety, performance and other bonds, bankers’ acceptances and similar facilities and guarantees to replace the Scheduled Credit Enhancements or (ii) assume all obligations under each such Scheduled Credit Enhancement effective as of the Closing, obtaining as soon as reasonably practicable from the creditor or other counterparty a full and irrevocable release of SHI and its Affiliates that are liable, directly or indirectly, for reimbursement to the creditor or fulfillment of other Liabilities to a counterparty in connection with such Scheduled Credit Enhancements (the foregoing, collectively, the “Actions on Credit Enhancements”) to the extent arising under, or related to, obligations following the Closing. In the event that the Parties are unable to effectuate on or prior to the Closing Date the Actions on Credit Enhancements with respect to such Scheduled Credit Enhancements (the “Continuing Scheduled Credit Enhancements”), each of MetalCo and SHI shall, and shall cause their respective Affiliates to, use commercially reasonable efforts to effectuate the Actions on Credit Enhancements with respect to such Continuing Scheduled Credit Enhancements as promptly as reasonably practicable. Until the date that is twelve (12) months following the Closing Date, SHI shall reasonably cooperate with MetalCo and maintain in effect each Continuing Scheduled Credit Enhancement that has not been replaced and/or terminated pursuant to this Section 7.17(a) (provided that, in so cooperating, none of SHI or its Affiliates will
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be required to incur any additional Liability), following which twelve (12) month anniversary of the Closing Date, SHI and its Affiliates may terminate any then-outstanding Continuing Scheduled Credit Enhancement or take any other action with respect thereto as SHI may determine in its sole discretion. If, following the date of this Agreement, SHI identifies any Credit Enhancement that is not a Scheduled Credit Enhancement, SHI shall promptly notify MetalCo thereof in writing (and Schedule 7.17(a) of the Silgan Disclosure Schedules shall be deemed supplemented to include such Credit Enhancement), and from and after the date of such notice, such Credit Enhancement shall be treated as a Continuing Scheduled Credit Enhancement for all purposes of this Section 7.17(a); provided that, with respect to any such Credit Enhancement, the twelve (12) month period referred to in the preceding sentence shall run until twelve (12) months following the later of (x) the Closing Date, and (y) the date of such written notice. MetalCo further agrees that to the extent SHI or any of its Affiliates incurs any cost or expense, or is required to make any payment, on or after the Closing, in connection with the exercise by any third party of its rights against SHI or its Affiliates with respect to the Credit Enhancements (whether or not they are Scheduled Credit Enhancements), MetalCo shall indemnify and hold harmless SHI and its Affiliates against, and reimburse SHI and its Affiliates for, (x) with respect to any Scheduled Credit Enhancements, any and all amounts paid by SHI or its Affiliates, including costs or expenses in connection with maintaining such Scheduled Credit Enhancements after the Closing (and, for the avoidance of doubt, excluding the period prior to the Closing), whether or not any Credit Enhancement is drawn upon or required to be performed and (y) with respect to any Credit Enhancements other than the Scheduled Credit Enhancements, any and all amounts paid by SHI or its Affiliates solely to the extent drawn upon or required to be performed. To the extent MetalCo or any of its Affiliates incurs any costs or expenses, or is required to make any payment, on or after the Closing, in connection with the exercise by any third parties of their rights relating to the period prior to Closing with respect to the Credit Enhancements, SHI shall indemnify and hold harmless MetalCo and its Affiliates against, and reimburse MetalCo and its Affiliates for, any and all amounts paid by MetalCo or its Affiliates. The indemnifying party, in each case, shall, promptly and in no event later than three (3) Business Days after written demand therefor from the indemnified party, reimburse the indemnified party or its Affiliates to the extent that such applicable Credit Enhancement is called upon and the indemnified party or any of its Affiliates makes any payment or incurs any costs or expenses in respect of such Credit Enhancement. In no event shall MetalCo or any Acquired Company be obligated to obtain, replace or secure any such arrangement with respect to, any Credit Enhancements to the extent such Credit Enhancements support obligations that are Liabilities relating to the Retained Business of SHI and its Affiliates. MetalCo shall not, and shall cause its Affiliates not to, increase SHI’s or its Affiliates’ obligations under or amend in a manner adverse to SHI or its Affiliates or renew or extend the term of, or transfer to a third party, any Credit Enhancement without the consent of SHI.
(b) At or prior to the Closing, each of MetalCo and SHI shall, and shall cause their respective Affiliates to, use commercially reasonable efforts to, effective as of the Closing, terminate or cause to be terminated the outstanding letters of credit, surety, performance and other bonds, bankers’ acceptances and similar facilities and guarantees entered into by or on behalf of the Acquired Companies in connection with, for the benefit of, or relating to the Retained Business or the assets of SHI or its Affiliates (other than the Acquired Companies) (collectively, the “Silgan Credit Enhancements”) to the extent set forth on Schedule 7.17(b) of the Silgan Disclosure Schedules or entered into between the date hereof and the Closing Date in the Ordinary Course of Business and in accordance with Section 7.2 (such Silgan Credit Enhancements, the “Scheduled
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Silgan Credit Enhancements”), in each case, without Liability to MetalCo or any of its Affiliates or, subject to the written consent of SHI, cause SHI or one of its Affiliates (other than the Acquired Companies) to (i) arrange for substitute letters of credit, surety, performance and other bonds, bankers’ acceptances and similar facilities and guarantees to replace the Scheduled Silgan Credit Enhancements or (ii) assume all obligations under each such Scheduled Silgan Credit Enhancement effective as of the Closing, obtaining as soon as reasonably practicable from the creditor or other counterparty a full and irrevocable release of the Acquired Companies that are liable, directly or indirectly, for reimbursement to the creditor or fulfillment of other Liabilities to a counterparty in connection with such Scheduled Silgan Credit Enhancements (the foregoing, collectively, the “Actions on Silgan Credit Enhancements”). In the event that the Parties are unable to effectuate on or prior to the Closing Date the Actions on Silgan Credit Enhancements with respect to such Scheduled Silgan Credit Enhancements (the “Continuing Scheduled Silgan Credit Enhancements”), each of MetalCo and SHI shall, and shall cause their respective Affiliates to, use commercially reasonable efforts to effectuate the Actions on Silgan Credit Enhancements with respect to such Continuing Scheduled Silgan Credit Enhancements as promptly as reasonably practicable. Until the date that is twelve (12) months following the Closing Date, MetalCo shall reasonably cooperate with SHI and maintain in effect each Continuing Scheduled Silgan Credit Enhancement that has not been replaced and/or terminated pursuant to this Section 7.17(b) (provided that, in so cooperating, none of MetalCo or its Affiliates will be required to incur any additional Liability), following which twelve (12) month anniversary of the Closing Date, MetalCo and its Affiliates may terminate any then-outstanding Continuing Scheduled Silgan Credit Enhancement or take any other action with respect thereto as MetalCo may determine in its sole discretion. If, following the date of this Agreement, MetalCo identifies any Silgan Credit Enhancement that is not a Scheduled Silgan Credit Enhancement, MetalCo shall promptly notify SHI thereof in writing (and Schedule 7.17(b) of the Silgan Disclosure Schedules shall be deemed supplemented to include such Silgan Credit Enhancement), and from and after the date of such notice such Silgan Credit Enhancement shall be treated as a Continuing Scheduled Silgan Credit Enhancement for all purposes of this Section 7.17(b); provided that, with respect to any such Silgan Credit Enhancement, the twelve (12) month period referred to in the preceding sentence shall run until twelve (12) months following the later of (x) the Closing Date, and (y) the date of such written notice. SHI further agrees that to the extent MetalCo or any of its Affiliates incurs any cost or expense, or is required to make any payment, on or after the Closing, in connection with the exercise by any third party of its rights against MetalCo or its Affiliates with respect to the Silgan Credit Enhancements (whether or not they are Scheduled Silgan Credit Enhancements), SHI shall indemnify and hold harmless MetalCo and its Affiliates against, and reimburse MetalCo and its Affiliates for, (x) with respect to any Scheduled Silgan Credit Enhancements, any and all amounts paid by MetalCo or its Affiliates, including costs or expenses in connection with maintaining such Scheduled Silgan Credit Enhancements after the Closing, whether or not any Silgan Credit Enhancement is drawn upon or required to be performed and (y) with respect to any Silgan Credit Enhancements other than the Scheduled Silgan Credit Enhancements, any and all amounts paid by MetalCo or its Affiliates solely to the extent drawn upon or required to be performed. To the extent SHI or any of its Affiliates incurs any cost or expense, or is required to make any payment, on or after the Closing, in connection with the exercise by any third party of its rights relating to the period prior to Closing with respect to the Silgan Credit Enhancements, MetalCo shall indemnify and hold harmless SHI and its Affiliates against, and reimburse SHI and its Affiliates for, any and all amounts paid by SHI or its Affiliates. The indemnifying party, in each case, shall, promptly
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and in no event later than three Business Days after written demand therefor from the indemnified party, reimburse the indemnified party or its Affiliates to the extent that such applicable Silgan Credit Enhancement is called upon and the indemnified party or any of its Affiliates makes any payment or incurs any costs or expenses in respect of such Silgan Credit Enhancement. In no event shall SHI or any of its Affiliates be obligated to obtain, replace or secure any such arrangement with respect to, any Silgan Credit Enhancements to the extent such Silgan Credit Enhancements support obligations that are Liabilities relating to the Business. SHI shall not, and shall cause its Affiliates not to, increase MetalCo’s or its Affiliates’ obligations under or amend in a manner adverse to MetalCo or its Affiliates or renew or extend the term of, or transfer to a third party, any Silgan Credit Enhancement without the consent of MetalCo.
(c) Without limiting MetalCo’s undertaking in the foregoing Section 7.17(a), in the event either of the Actions on Credit Enhancements is not completed effective as of the Closing, to the extent that SHI or any of its Affiliates has performance obligations under any Credit Enhancements after the Closing, MetalCo shall, or shall cause its Affiliates to, (i) if requested by SHI, perform such obligations on behalf of SHI or any of its Affiliates, as applicable, and (ii) otherwise take such action as requested by SHI so as to put SHI or its applicable Affiliate in the same position as if MetalCo or its Affiliates had performed or was performing such obligations.
(d) Without limiting SHI’s undertaking in the foregoing Section 7.17(b), in the event either of the Actions on Silgan Credit Enhancements is not completed effective as of the Closing, to the extent that MetalCo or any of its Affiliates has performance obligations under any Silgan Credit Enhancements after the Closing, SHI shall, or shall cause its Affiliates to, (i) if requested by MetalCo, perform such obligations on behalf of MetalCo or any of its Affiliates, as applicable, and (ii) otherwise take such action as requested by MetalCo so as to put MetalCo or its applicable Affiliate in the same position as if SHI or its Affiliates had performed or was performing such obligations.
7.18 Insurance.
(a) Except as otherwise provided in this Section 7.18, MetalCo acknowledges that all insurance coverage for the Acquired Companies under insurance policies maintained by SHI or any of its Affiliates (other than the Acquired Companies) shall terminate as of the Closing. MetalCo shall be solely responsible for procuring, paying for and maintaining insurance coverage for the Acquired Companies and the Business effective from and after the Closing (or, with respect to the risks covered by any Continuing Silgan Policy, from and after the applicable Transition End Date), including directors’ and officers’, employment practices and fiduciary liability insurance policies for MetalCo and the Acquired Companies effective as of the Closing.
(b) Notwithstanding Section 7.18(a), with respect to acts, omissions, events or circumstances relating to the Acquired Companies or the Business that occurred or existed prior to the Closing that are covered by occurrence-based insurance policies of SHI or any of its Affiliates that are maintained on behalf of any Acquired Company or the Business, including the Insurance Policies, (i) if the matter solely relates to the Acquired Companies or the Business, MetalCo or the applicable Acquired Company shall have the right to direct the submission, prosecution and negotiation of any claim under such policies (including the claims set forth on Schedule 7.18(b)(i) of the Silgan Disclosure Schedules), (ii) if the matter primarily relates to the
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Acquired Companies or the Business but also relates to SHI, any Retained Company or the Retained Business, SHI, on the one hand, and MetalCo or the applicable Acquired Company, on the other hand, shall jointly direct the submission, prosecution and negotiation of any claim under such policies (including the claims set forth on Schedule 7.18(b)(ii) of the Silgan Disclosure Schedules), and (iii) for all other matters relating to the Acquired Companies or the Business, SHI shall direct the submission, prosecution and negotiation of any claim under such policies (including the claims set forth on Schedule 7.18(b)(iii) of the Silgan Disclosure Schedules), and in each case SHI shall, and shall cause its Affiliates to, reasonably cooperate with MetalCo or the Acquired Company covered under the applicable insurance policy (upon MetalCo’s or such Acquired Company’s reasonable written request) in connection therewith (including, as applicable, by submitting such claim in their names as insureds, executing proofs of loss, providing information requested by the insurer and promptly furnishing MetalCo with copies of material correspondence with any insurer, broker or adjuster), and SHI shall promptly remit (or cause to be remitted) to MetalCo or the applicable Acquired Company any allocable insurance proceeds actually received in respect thereof (net of the amounts described in clause (i) below); provided, however, that the Acquired Companies acknowledge and agree that (i) any proceeds to the Acquired Companies from the making of such claims will be decreased by the total amount of any increased out-of-pocket costs incurred by SHI or any of its Affiliates as a result of such claims, including any retroactive or prospective premium adjustments associated with such coverage, as such amounts are determined in accordance with those policies and programs generally applicable from time to time to SHI or any of its Affiliates, (ii) MetalCo shall be responsible for any deductible or retention associated with such claims, (iii) from and after the Closing, SHI shall not, and shall cause its Affiliates not to, amend, commute, terminate, buy-out, extinguish liability under or otherwise modify any such insurance policy in a manner that would impair the rights of, or coverage available to, MetalCo or the Acquired Companies with respect to such pre-Closing acts, omissions, events or circumstances, without MetalCo’s prior written consent (not to be unreasonably withheld, conditioned or delayed), (iv) SHI shall not, and shall cause its Affiliates not to, compromise, settle, release or withdraw any such claim, or agree to any allocation of proceeds or policy limits between the Business and the Retained Business in respect thereof, without MetalCo’s prior written consent (not to be unreasonably withheld, delayed or conditioned), and MetalCo shall not compromise or settle any such claim in a manner that would reasonably be expected to increase the costs described in clause (i) or reduce the coverage available for the Retained Business without SHI’s prior written consent (not to be unreasonably withheld, conditioned or delayed), (v) coverage counsel shall be selected by MetalCo and be reasonably acceptable to SHI (such acceptance not to be unreasonably withheld, delayed or conditioned), at MetalCo’s cost except to the extent recovered from the insurer, and (vi) where an occurrence gives rise to claims relating to both the Business and the Retained Business, recoveries and any erosion of limits shall be allocated between them in proportion to the respective Covered Losses.
(c) For the avoidance of doubt, except (i) as provided in Section 7.18(g) with respect to any claims-made coverage included in a Continuing Silgan Policy (including any employee benefits liability coverage provided under a general liability policy), (ii) as provided in Section 7.18(h) and (iii) with respect to any claim noticed to the applicable insurer under any claims-made insurance policy of SHI or any of its Affiliates prior to the Closing (which claims shall continue to be pursued under such policies in accordance with their terms, and Section 7.18(b) shall apply, mutatis mutandis, to such claims), from and after the Closing, none of MetalCo or the Acquired Companies shall have any right to make claims or seek coverage under any claims-made
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insurance policies provided to the Acquired Companies by third parties or by SHI or any of its Affiliates, and, to the extent MetalCo or any Acquired Company, or any of their employees or third parties, make claims under such claims-made policies after the Closing (other than as so excepted), MetalCo agrees to indemnify SHI and its Affiliates (excluding the Acquired Companies) for the full amount of all fees, costs and expenses incurred by SHI or any such Affiliate as a result of such claims.
(d) MetalCo shall cause the Acquired Companies to reasonably cooperate with SHI and its Affiliates (upon the reasonable written request of SHI or its applicable Affiliates) and share such information as is reasonably necessary in the view of SHI and its Affiliates (excluding the Acquired Companies) in order to permit SHI and its Affiliates (excluding the Acquired Companies) to manage and conduct insurance matters within the scope of this Section 7.18 as such Persons deem appropriate.
(e) The Cyber Insurance Policy to be obtained by MetalCo pursuant to Section 7.18(f) shall include full prior acts coverage for the Acquired Companies and the Business (without any retroactive date limitation), such that cyber events, network security failures, privacy incidents and data breaches occurring or existing prior to the Closing but first discovered or reported following the Closing and within the reporting period specified in the Cyber Insurance Policy are covered thereunder, with limits not less than $15,000,000 in excess of a $2,500,000 retention (or such other limits substantially consistent with the cyber liability program most recently maintained for the Business). If full prior acts coverage is not available on commercially reasonable terms, SHI and MetalCo shall cooperate in good faith to procure a run-off or extended reporting endorsement under the cyber liability policy of SHI and its Affiliates for the benefit of MetalCo and the Acquired Companies in respect of such pre-Closing events (any such endorsement or policy, the “Cyber Tail Policy”), the cost of which shall be borne by MetalCo. From the date of this Agreement until the Closing, SHI shall procure and maintain in effect cyber liability insurance coverage for the Acquired Companies and the Business on terms and limits substantially consistent with its most recent program. Any cyber event, network security failure, privacy incident or data breach noticed to the applicable insurer under such coverage prior to the Closing shall be handled in accordance with Section 7.18(c).
(f) SHI and A-VL Holdings mutually agree to cause MetalCo to obtain, at its cost, with effect from the Closing, cyber liability insurance coverage for the Acquired Companies and the Business, including the shared information technology environment of the Business and the Retained Business currently insured at the SHI level (the “Cyber Insurance Policy”), and SHI shall reimburse MetalCo for its pro rata share of the premium therefor pursuant to the Transition Services Agreement. In furtherance of the foregoing, from the date of this Agreement, SHI shall, and shall cause the Acquired Companies and its other applicable Affiliates and Representatives to, reasonably cooperate with MetalCo and its insurance brokers and prospective insurers in connection with the placement of the Cyber Insurance Policy and any other replacement insurance coverage for the Acquired Companies and the Business (including by providing loss runs, exposure data and other underwriting information reasonably requested), subject to Section 7.1(a).
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(g) Notwithstanding Section 7.18(a), if MetalCo so elects by written notice to SHI delivered no later than ninety (90) days prior to the anticipated Closing Date (which election may be made with respect to all or any of the policies set forth on Schedule 7.18(g) of the Silgan Disclosure Schedules), SHI shall, and shall cause its Affiliates to, continue to make available to the Acquired Companies and the Business coverage under the insurance policies so elected (the “Continuing Silgan Policies”) from the Closing until, with respect to each Continuing Silgan Policy, the earlier of (i) the expiration of the policy period of such Continuing Silgan Policy in effect at the Closing (without giving effect to any renewal or extension thereof) and (ii) the date on which the Acquired Companies are removed from the Continuing Silgan Policies following the written request by MetalCo (such earlier date, with respect to each Continuing Silgan Policy, the “Transition End Date”), in each case on terms, conditions and limits substantially consistent with those in effect for the Acquired Companies and the Business immediately prior to the Closing; provided that (A) MetalCo shall reimburse SHI, within thirty (30) days following receipt of an invoice therefor, for the portion of the premiums, Taxes and surcharges and other costs under each Continuing Silgan Policy allocable to the Acquired Companies and the Business for the period from the Closing through the applicable Transition End Date, determined based on the respective revenues of the Business using the Continuing Silgan Policies and the Retained Business using the Continuing Silgan Policies, (B) MetalCo shall be responsible for any deductible, self-insured retention or co-payment in respect of claims made by or on behalf of any Acquired Company under any Continuing Silgan Policy in respect of the period following the Closing, and Section 7.18(b)(i) shall apply, mutatis mutandis, to any such claims, (C) SHI shall not, and shall cause its Affiliates not to, amend, cancel, terminate or otherwise modify any Continuing Silgan Policy prior to the applicable Transition End Date in a manner adverse to the Acquired Companies or the Business without MetalCo’s prior written consent (not to be unreasonably withheld, conditioned or delayed), other than any modification required by the applicable insurer that applies to SHI and its Affiliates generally, (D) SHI shall, promptly (and in any event within thirty (30) days) following the date of this Agreement, request from the applicable insurers any consent of or endorsement from such insurers required for the Acquired Companies to remain covered under the policies set forth on Schedule 7.18(g) of the Silgan Disclosure Schedules following the Closing notwithstanding the consummation of the Transactions, shall use commercially reasonable efforts to obtain each such consent and endorsement prior to the Closing, and shall notify MetalCo promptly (and in any event within five (5) Business Days) after any insurer declines to provide, or conditions, any such consent or endorsement, so that MetalCo may procure replacement coverage for the applicable line of coverage effective as of the Closing, and (E) SHI shall, and shall cause its Affiliates to, reasonably cooperate with MetalCo and its insurance brokers in the transition of the Acquired Companies and the Business to replacement coverage procured by MetalCo. Nothing in this Section 7.18(g) shall require SHI or any of its Affiliates to make available to the Acquired Companies or the Business, following the Closing, coverage under any directors’ and officers’, employment practices, fiduciary or other management liability insurance policy (other than as provided in Section 7.18(h)).
(h) SHI acknowledges and agrees that the individuals who served as directors, managers or officers of any Acquired Company at or prior to the Closing shall continue to be covered, in respect of acts and omissions occurring at or prior to the Closing, under the directors’ and officers’ liability insurance policies maintained by SHI and its Affiliates as in effect at the Closing, in accordance with the terms thereof (including any provisions thereof applicable to former Subsidiaries of SHI and their directors, managers and officers), and, for a period of six (6) years following the Closing Date, SHI shall not, and shall cause its Affiliates not to, amend, commute, terminate or otherwise modify such policies in a manner that would eliminate or impair such coverage; provided that SHI may satisfy the foregoing by procuring a run-off or “tail” policy providing coverage no less favorable to such individuals than the coverage in effect at the Closing.
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7.19 Payments.
(a) Except as otherwise provided in this Agreement or any other Transaction Document, SHI shall, or shall cause its Affiliates to, promptly pay or deliver to MetalCo (or its designated Affiliates) any monies or checks that have been sent to SHI or any of its Affiliates after the Closing Date to the extent they are in respect of the Business.
(b) Except as otherwise provided in this Agreement or any other Transaction Document, MetalCo shall, or shall cause its applicable Affiliate to, promptly pay or deliver to SHI (or its designated Affiliates) any monies or checks that have been sent to MetalCo or any of its Affiliates (including the Acquired Companies) after the Closing Date to the extent they are in respect of the Retained Business.
(c) The Parties shall reasonably cooperate to effect any transfers or other arrangements described in this Section 7.19 in a manner that results in no (or the least amount of) incremental Tax liability (to the extent permitted by applicable Law) for the Parties and their respective Affiliates, including by treating the Person initially in possession of any such payment referenced in this Section 7.19 after the Closing as holding such payment as an agent or nominee for the transferee thereof for all Tax purposes, to the extent permitted by applicable Law.
7.20 Misallocated Assets. If, following the Closing, any right, property or asset not primarily related to or primarily used in the Business on or prior to the Closing is found to have been transferred to MetalCo or any Acquired Company, either directly or indirectly, MetalCo shall cause the Acquired Companies to transfer, for no consideration, such right, property or asset as soon as practicable to SHI or an Affiliate thereof designated by SHI. If, following the Closing, any right, property or asset primarily related to or primarily used in the Business, on or prior to the Closing is found to have been retained by, or transferred to, SHI or an Affiliate thereof (excluding for the avoidance of doubt, MetalCo and the Acquired Companies), either directly or indirectly, SHI shall transfer, or shall cause such Affiliate to transfer, for no consideration, such right, property or asset as soon as practicable to MetalCo or a Subsidiary thereof (including an Acquired Company) designated by MetalCo. To the extent that any transfer under this Section 7.20 is required, but not permitted by Law or an applicable Contract, SHI and MetalCo shall use commercially reasonable efforts to obtain or structure an arrangement such that MetalCo or SHI, as applicable, shall receive the rights and benefits and/or bear the obligations and burdens, of such right, property, asset or liability. The Parties shall reasonably cooperate to effect any transfers or other arrangements described in this Section 7.20 in a manner that results in no (or the least amount of) incremental Tax liability (to the extent permitted by applicable Law) for the Parties and their respective Affiliates, including by treating the Person initially in possession of any such right, property or asset referenced in this Section 7.20 after the Closing as holding such right, property or asset as an agent or nominee for the transferee thereof for all Tax purposes, to the extent permitted by applicable Law.
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7.21 Shared Contracts.
(a) From the date of this Agreement until the Closing, with respect to each Shared Contract (other than the Shared Contracts to be governed by the Joint Procurement Agreement), SHI shall, and shall cause its applicable Subsidiaries to, use commercially reasonable efforts to divide, partially assign, modify or replicate (in whole or in part) such Shared Contract to the extent permitted under applicable Law such that (i) the rights, benefits, obligations and Liabilities of SHI or its applicable Subsidiaries in respect of that portion of such Shared Contract relating to the Business will be assigned to or assumed by, as applicable, one or more Acquired Companies and (ii) the rights, benefits, obligations and Liabilities of SHI or its applicable Subsidiaries in respect of that portion of such Shared Contract relating to the Retained Business will be assigned to or assumed by, as applicable, SHI or any of its Subsidiaries (other than the Acquired Companies) (such division, partial assignment, modification or replication, the “Shared Contract Separation”); provided that nothing in this Section 7.21(a) shall require any Party or any of its Affiliates to pay any fee or other payment or consideration (monetary or otherwise), make any concession or accommodation to any third party, incur any Liability or commence, defend or participate in any Legal Proceeding. Any fees, costs and expenses paid or granted to apportion such Shared Contracts (including the obtaining of any authorizations, approvals or consents required in connection therewith) shall be borne solely by MetalCo and be MetalCo Expenses. From and after the Closing, (A) MetalCo (or an Acquired Company) shall reimburse, indemnify and hold harmless SHI and its Subsidiaries against all Covered Losses arising from or relating to the portion of any such Shared Contract (including any Stranded Shared Contract) apportioned to the Business and (B) SHI and/or its Affiliates shall reimburse, indemnify and hold harmless MetalCo and the Acquired Companies against all Covered Losses arising from or relating to any portion of such Shared Contract (including any Stranded Shared Contract) apportioned to the Retained Business. Other than in the Ordinary Course of Business, neither MetalCo nor SHI (or their respective Affiliates) shall extend the term or otherwise amend the terms of any Shared Contract in a manner that would materially and adversely affect the other Party (or any of such Party’s Subsidiaries) without the prior written consent of SHI or MetalCo, as applicable (not to be unreasonably withheld, conditioned or delayed).
(b) For any such Shared Contract for which the Shared Contract Separation could not be completed prior to the Closing (such Shared Contract, a “Stranded Shared Contract”), from the Closing until the earliest of (x) the completion of such Shared Contract Separation, (y) the expiration or termination of such Stranded Shared Contract in accordance with its terms (without any extensions or renewals thereof) and (z) the second anniversary of the Closing Date, each Party shall, and shall cause its Affiliates to, use commercially reasonable efforts to continue the Shared Contract Separation of such Stranded Shared Contract and to enter into a mutually agreeable arrangement, to the extent permitted by applicable Law, under which, effective from and after the Closing until the expiration or termination of such Stranded Shared Contract in accordance with its terms (without any extensions or renewals thereof), (i) one or more Acquired Companies would obtain and assume, as applicable, all of the rights, benefits, obligations and Liabilities of SHI or its applicable Subsidiaries in respect of that portion of such Shared Contract relating to the Business and (ii) SHI or any of its Subsidiaries would obtain and assume, as applicable, all of the rights, benefits, obligations and Liabilities of SHI or its applicable Subsidiaries in respect of that portion of such Shared Contract relating to the Retained Business; provided that nothing in this Section 7.21(b) shall require any Party or any of its Affiliates to pay any fee or other payment or consideration (monetary or otherwise), make any concession or accommodation to any third party, incur any Liability or commence, defend or participate in any
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Legal Proceeding for so long as SHI or any of its Subsidiaries is party to any such Shared Contract. Pending completion of the Shared Contract Separation of any Stranded Shared Contract, SHI shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to provide the applicable Acquired Companies the rights and benefits of the portion of such Stranded Shared Contract relating to the Business, and MetalCo shall, or shall cause the applicable Acquired Company to, perform and discharge the corresponding obligations and Liabilities of such portion to the extent the Acquired Companies receive such rights and benefits.
(c) Without limiting the foregoing, for the avoidance of doubt, no representation, warranty or covenant of SHI contained in this Agreement shall be breached or deemed breached, and no condition shall be deemed not satisfied, based on, in and of itself, (i) the failure to complete the Shared Contract Separation with respect to any such Shared Contract or (ii) any Legal Proceeding commenced or threatened by or on behalf of any Person arising out of or relating to the failure to complete the Shared Contract Separation with respect to any such Shared Contract.
7.22 Reorganization.
(a) Prior to the Closing, SHI shall, and shall cause its applicable Affiliates to, take all necessary actions and steps to complete, in full, the Reorganization, including all of the steps set forth in the steps plan attached hereto as Exhibit F (the “Reorganization Plan”) other than such steps that are expressly contemplated thereby to be completed following the Closing, and the Separation Activities, including by executing a restructuring agreement (the “Restructuring Agreement”), in a form reasonably satisfactory to SHI, MetalCo and A-VL Holdings, setting forth the documents, instruments and other actions to be executed or taken to consummate the Reorganization (together with the Restructuring Agreement, the “Restructuring Documents”); provided that SHI and its Affiliates may not amend the Reorganization Plan and/or Restructuring Documents without the prior written consent of MetalCo (such consent not to be unreasonably withheld, conditioned or delayed) in respect of any such amendment that has, individually or in the aggregate, an adverse effect on MetalCo or its Affiliates, including the Acquired Companies; provided, further, that no consent of MetalCo is required for the insertion of or modification to administrative and other similar details in the Restructuring Documents, including any documents or instruments contemplated therein (such as names and/or addresses of parties or signatories, notaries, witnesses, signature execution blocks, notary or witness mechanics, apostille and authentication requirements, dates which are contemplated by the applicable document or instrument but are required to be completed to execute such document or instrument). Subject to the consent right of MetalCo in the preceding sentence, if any changes or modifications to the Reorganization Plan or the Restructuring Documents include the formation or incorporation by SHI or its Affiliates of certain entities for the purpose of holding certain assets or liabilities of the Business, then any reference in this Agreement to the “Acquired Companies” shall be deemed to have been made for all purposes hereunder giving effect to the formation or incorporation of such entities.
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(b) Each agreement, deed, instrument or other document entered into pursuant to the Reorganization Plan, or otherwise to implement in any jurisdiction any transfer contemplated by this Agreement or the Reorganization Plan (each, a “Local Transfer Document”), is intended solely to implement the transactions contemplated by this Agreement and the Reorganization Plan. In the event of any conflict between any Local Transfer Document and this Agreement, the terms of this Agreement shall control in all respects. No Local Transfer Document shall limit, modify or otherwise affect any representation, warranty, covenant or remedy provided under this Agreement. No Party shall, and each Party shall cause its Affiliates not to, bring any Legal Proceeding under any Local Transfer Document except to enforce the implementation thereof consistent with this Agreement.
7.23 Required Notices. SHI shall, and shall cause its Affiliates to, use commercially reasonable efforts to timely deliver all notices and make all filings and registrations required under any Material Contract (including the SCF Programs with Material Customers and any collective bargaining agreement), material Permit or Benefit Plan in connection with the Reorganization and the Transactions, within the time periods required thereby (including, for the avoidance of doubt, any advance-notice period under any collective bargaining agreement, any name-change or form-change notices required under the SCF Programs with Material Customers and any Permit transfer or name-change notices required in connection with the entity conversions contemplated by the Reorganization Plan), and shall provide MetalCo and A-VL Holdings with copies of all such notices reasonably in advance of delivery.
7.24 Portola Liquidations. SHI shall use commercially reasonable efforts to cause the liquidation and dissolution of Portola (Asia Pacific) Holding Company Ltd. and Portola Packaging Inc. Mexico, S.A. de C.V. to be completed as promptly as practicable after the date hereof.
7.25 MIHBV Valuation. Within sixty (60) days following the date hereof, SHI and MetalCo shall jointly engage a nationally recognized independent valuation firm jointly selected by SHI and MetalCo (the “Valuation Firm”) to determine the fair market value of the MIHBV Shares as of the Closing, and SHI shall, and shall cause the Acquired Companies to, furnish the Valuation Firm with such information and access as it reasonably requests for such purpose. SHI and MetalCo shall cause the Valuation Firm to deliver to SHI, A-VL Holdings and MetalCo, no later than ten (10) Business Days prior to the anticipated Closing Date, a written report setting forth such fair market value (the “MIHBV Valuation Report”), which shall, absent manifest error, be final and binding on the Parties for purposes of determining the MIHBV Transfer Amount. Except to the extent otherwise required pursuant to a “determination” (within the meaning of Section 1313(a) of the Code), SHI and MetalCo shall, and shall cause their respective Affiliates to, file all Tax Returns consistently with the fair market value set forth in the MIHBV Valuation Report. The fees and expenses relating to the Valuation Firm shall be treated as Reorganization Costs.
7.26 Phase Is. SHI shall, and shall cause its applicable Subsidiaries to, use commercially reasonable efforts to complete, prior to the Closing, Phase I environmental site assessment reports (the “Phase I Reports”) for the facilities of the Acquired Companies set forth on Schedule 7.26 of the Silgan Disclosure Schedules, in each case (a) subject to the terms of any existing Contract to which SHI or any Acquired Company is a party and (b) prepared by an environmental consultant reasonably acceptable to MetalCo in accordance with ASTM International Standard E1527-21 (to the extent feasible in the relevant jurisdiction). SHI shall, and shall cause its applicable Subsidiaries to, deliver each Phase I Report to MetalCo promptly upon completion. The fees and expenses associated with obtaining the Phase I Reports shall be a
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MetalCo Expense. Any recognized environmental condition that is newly discovered (excluding, for clarity, any recognized environmental condition previously disclosed in the Data Room or on the Silgan Disclosure Schedules) from any Phase I Report completed in accordance with this Section 7.26 shall, in each case, be excluded for the purposes of determining the satisfaction of the conditions set forth in Sections 8.2(a) or 8.4(a).
7.27 Retained IP. SHI or its Affiliates (other than the Acquired Companies) shall retain ownership of the Retained IP. MetalCo agrees to refrain from using the Silgan Marks, and agrees to cause the Acquired Companies not to use the Silgan Marks after the Closing, except as authorized in the IP License Agreement. After the Closing, MetalCo and the Acquired Companies shall diligently and promptly, and in any event within sixty (60) days after the Closing, remove, permanently obliterate, cover or otherwise stop using or displaying Silgan Marks in or on any signage, tools, dies, or equipment, and modify all products, labeling, inserts, packaging, websites, social media and other materials to remove the Silgan Marks, except as authorized in the IP License Agreement.
7.28 Joint Procurement Agreement. SHI and MetalCo shall, and shall cause their respective Affiliates to, negotiate in good faith to finalize and agree, prior to the Closing, a definitive agreement providing for the continued procurement by SHI and its Subsidiaries of materials on behalf of the Acquired Companies following the Closing under the Contracts identified as Procurement Contracts in the term sheet attached hereto as Exhibit G (the “Joint Procurement Term Sheet”) and any other Shared Contract that SHI and MetalCo agree in writing to treat as such (the “Joint Procurement Agreement”), on terms consistent in all respects with the Joint Procurement Term Sheet and otherwise on customary terms reasonably acceptable to SHI and MetalCo (each acting reasonably and in good faith).
ARTICLE VIII
CONDITIONS TO CLOSING
8.1 Conditions Precedent to Obligations of the Parties. The respective obligations of the Parties to consummate the Transactions are subject to the satisfaction, on or prior to the Closing, of each of the following conditions:
(a) There shall not be in effect any Order by a Governmental Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the Transactions;
(b) The Reorganization shall have been consummated in accordance with Section 7.22; and
(c) All of the conditions to closing set forth in the Project Voyage Purchase Agreement shall have been satisfied or waived (other than (i) any condition thereunder requiring that the conditions set forth in this Agreement shall have been satisfied or waived and (ii) any condition that by its terms is to be satisfied at the closing under the Project Voyage Purchase Agreement, but subject to each such condition being capable of being satisfied as of the Closing), and the parties to the Project Voyage Purchase Agreement (other than MetalCo) shall be ready, willing and able to consummate the closing under the Project Voyage Purchase Agreement substantially concurrently with the Closing.
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8.2 Conditions Precedent to Obligations of MetalCo. The obligation of MetalCo to consummate the Transactions is subject to the satisfaction, on or prior to the Closing, of each of the following conditions (any or all of which may be waived by MetalCo in whole or in part to the extent permitted by applicable Law):
(a) The representations and warranties regarding SHI set forth in Article III and the representations and warranties regarding the Acquired Companies set forth in Article IV (in each case, other than the Silgan Fundamental Representations and the representation and warranty set forth in Section 4.8(a)) shall be true and correct (without giving effect to any “materiality”, “Material Adverse Effect” or similar qualifiers contained in any of such representations and warranties) as of the Closing Date as if made on and as of such date (except to the extent that any such representation or warranty, by its terms, is expressly limited to a specific date, in which case, as of such specific date), except where the failure of such representations and warranties to be so true and correct does not have and would not have a Material Adverse Effect as of the Closing;
(b) (i) The Silgan Fundamental Representations shall be true and correct in all material respects, except with respect to the representations and warranties set forth in (A) Section 4.4(a), which shall be true and correct in all respects, except any inaccuracies that are de minimis, and (B) Section 4.22, which shall be true and correct in all respects, and (ii) the representation and warranty set forth in Section 4.8(a) shall be true and correct in all respects, in each case for clauses (i) and (ii), as of the Closing Date as if made on and as of such date (except to the extent that any such representation or warranty, by its terms, is expressly limited to a specific date, in which case, as of such specific date);
(c) The representations and warranties of A-VL Holdings set forth in Article VI (other than the A-VL Holdings Fundamental Representations) shall be true and correct (without giving effect to any “materiality”, “material adverse effect”, or similar qualifiers contained in any of such representations and warranties) as of the Closing Date as if made on and as of such date (except to the extent that any such representation or warranty, by its terms, is expressly limited to a specific date, in which case, as of such specific date), except where the failure of such representations and warranties to be so true and correct would not (i) have a material adverse effect on the ability of A-VL Holdings to perform its obligations under this Agreement or (ii) otherwise materially prevent, hinder, or delay the consummation of the Transactions;
(d) The A-VL Holdings Fundamental Representations shall be true and correct in all material respects, as of the Closing Date as if made on and as of such date (except to the extent that any such representation or warranty, by its terms, is expressly limited to a specific date, in which case, as of such specific date);
(e) No Material Adverse Effect shall have occurred since the date of this Agreement and remains ongoing;
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(f) SHI shall have performed and complied in all material respects with all obligations and agreements required by this Agreement to be performed or complied with by SHI on or prior to the Closing; provided, however, that, for purposes of this Section 8.2(f) only, the obligations set forth in Section 7.14 shall be considered not satisfied only if SHI or any of its Affiliates is in material breach of such obligations; and
(g) A-VL Holdings shall have performed and complied in all material respects with all obligations and agreements required by this Agreement to be performed or complied with by A-VL Holdings on or prior to the Closing.
If the Closing occurs, all closing conditions set forth in this Section 8.2 which have not been fully satisfied as of the Closing shall be deemed to have been fully waived; provided that such deemed waiver applies solely to the conditions to the Closing set forth in this Section 8.2 and shall not constitute a waiver of, or otherwise limit, any right or remedy of MetalCo in respect of the underlying facts, events, breaches or Liabilities giving rise to any such unsatisfied condition, including under Article X.
8.3 Conditions Precedent to Obligations of SHI. The obligations of SHI to consummate the Transactions are subject to the satisfaction, on or prior to the Closing, of each of the following conditions (any or all of which may be waived by SHI in whole or in part to the extent permitted by applicable Law):
(a) The representations and warranties of A-VL Holdings set forth in Article VI (other than the A-VL Holdings Fundamental Representations) shall be true and correct (without giving effect to any “materiality”, “material adverse effect”, or similar qualifiers contained in any of such representations and warranties) as of the Closing Date as if made on and as of such date (except to the extent that any such representation or warranty, by its terms, is expressly limited to a specific date, in which case, as of such specific date), except where the failure of such representations and warranties to be so true and correct would not (i) have a material adverse effect on the ability of A-VL Holdings to perform its obligations under this Agreement or (ii) otherwise materially prevent, hinder, or delay the consummation of the Transactions;
(b) The A-VL Holdings Fundamental Representations shall be true and correct in all material respects, as of the Closing Date as if made on and as of such date (except to the extent that any such representation or warranty, by its terms, is expressly limited to a specific date, in which case, as of such specific date);
(c) A-VL Holdings shall have performed and complied in all material respects with all obligations and agreements required by this Agreement to be performed or complied with by A-VL Holdings on or prior to the Closing; and
(d) MetalCo shall have performed and complied in all material respects with all obligations and agreements required by this Agreement to be performed or complied with by MetalCo on or prior to the Closing.
If the Closing occurs, all closing conditions set forth in this Section 8.3 which have not been fully satisfied as of the Closing shall be deemed to have been fully waived; provided that such deemed waiver applies solely to the conditions to the Closing set forth in this Section 8.3 and shall not constitute a waiver of, or otherwise limit, any right or remedy of SHI in respect of the underlying facts, events, breaches or Liabilities giving rise to any such unsatisfied condition, including under Article X.
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8.4 Conditions Precedent to Obligations of A-VL Holdings. The obligation of A-VL Holdings to consummate the Transactions is subject to the satisfaction, on or prior to the Closing, of each of the following conditions (any or all of which may be waived by A-VL Holdings in whole or in part to the extent permitted by applicable Law):
(a) The representations and warranties regarding SHI set forth in Article III and the representations and warranties regarding the Acquired Companies set forth in Article IV (in each case, other than the Silgan Fundamental Representations and the representation and warranty set forth in Section 4.8(a)) shall be true and correct (without giving effect to any “materiality”, “Material Adverse Effect” or similar qualifiers contained in any of such representations and warranties) as of the Closing Date as if made on and as of such date (except to the extent that any such representation or warranty, by its terms, is expressly limited to a specific date, in which case, as of such specific date), except where the failure of such representations and warranties to be so true and correct does not have and would not have a Material Adverse Effect as of the Closing;
(b) (i) The Silgan Fundamental Representations shall be true and correct in all material respects, except with respect to the representations and warranties set forth in (A) Section 4.4(a), which shall be true and correct in all respects, except any inaccuracies that are de minimis, and (B) Section 4.22, which shall be true and correct in all respects, and (ii) the representation and warranty set forth in Section 4.8(a) shall be true and correct in all respects, in each case for clauses (i) and (ii), as of the Closing Date as if made on and as of such date (except to the extent that any such representation or warranty, by its terms, is expressly limited to a specific date, in which case, as of such specific date);
(c) The representations and warranties of MetalCo set forth in Article V (other than the MetalCo Fundamental Representations) shall be true and correct (without giving effect to any “materiality”, “material adverse effect”, or similar qualifiers contained in any of such representations and warranties) as of the Closing Date as if made on and as of such date (except to the extent that any such representation or warranty, by its terms, is expressly limited to a specific date, in which case, as of such specific date), except where the failure of such representations and warranties to be so true and correct would not (i) have a material adverse effect on the ability of MetalCo to perform its obligations under this Agreement or (ii) otherwise materially prevent, hinder, or delay the consummation of the Transactions;
(d) The MetalCo Fundamental Representations shall be true and correct in all material respects, as of the Closing Date as if made on and as of such date (except to the extent that any such representation or warranty, by its terms, is expressly limited to a specific date, in which case, as of such specific date);
(e) No Material Adverse Effect shall have occurred since the date of this Agreement and remains ongoing;
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(f) SHI shall have performed and complied in all material respects with all obligations and agreements required by this Agreement to be performed or complied with by such Person on or prior to the Closing; provided, however, that, for purposes of this Section 8.4(f) only, the obligations set forth in Section 7.14 shall be considered not satisfied only if SHI or any of its Affiliates is in material breach of such obligations; and
(g) MetalCo shall have performed and complied in all material respects with all obligations and agreements required by this Agreement to be performed or complied with by MetalCo on or prior to the Closing.
If the Closing occurs, all closing conditions set forth in this Section 8.4 which have not been fully satisfied as of the Closing shall be deemed to have been fully waived; provided that such deemed waiver applies solely to the conditions to the Closing set forth in this Section 8.4 and shall not constitute a waiver of, or otherwise limit, any right or remedy of A-VL Holdings in respect of the underlying facts, events, breaches or Liabilities giving rise to any such unsatisfied condition, including under Article X.
8.5 Frustration of Closing Conditions. None of the Parties may rely, either as a basis for not consummating the Transactions or for terminating this Agreement and abandoning the Transactions, on the failure of any condition set forth in Sections 8.1, 8.2, 8.3 or 8.4, as the case may be, to be satisfied if such failure was caused by any breach of a covenant, agreement, representation, or warranty of this Agreement by such Party.
ARTICLE IX
TERMINATION
9.1 Termination of Agreement. This Agreement may be terminated prior to the Closing as follows:
(a) by mutual written consent of SHI, MetalCo and A-VL Holdings;
(b) by SHI, MetalCo or A-VL Holdings, by written notice to the other Parties, if:
(i) the Closing has not occurred by the close of business on or before October 15, 2027 (the “Initial Termination Date”); provided that if the applicable Termination Date (as defined in the Project Voyage Purchase Agreement) is extended, the Initial Termination Date shall be automatically extended for an equal length of time (such extended date, together with the Initial Termination Date, as applicable, the “Termination Date”); provided, further, that the right to terminate this Agreement pursuant to this Section 9.1(b)(i) shall not be available to (A) SHI if SHI is in breach in any material respect of any of its obligations hereunder and such breach has resulted in the Closing not having been effected as of the Termination Date, (B) MetalCo if MetalCo is in breach in any material respect of any of its obligations hereunder and such breach has resulted in the Closing not having been effected as of the Termination Date, or (C) A-VL Holdings if A-VL Holdings is in breach in any material respect of any of its obligations hereunder and such breach has resulted in the Closing not having been effected as of the Termination Date;
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(ii) there shall be in effect a final non-appealable Order of a Governmental Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the Transactions; or
(iii) either (A) the Project Voyage Put Option Agreement shall expire or be terminated in accordance with its terms without the put option thereunder being validly exercised in accordance with its terms or (B) the Project Voyage Purchase Agreement shall have been validly terminated in accordance with its terms prior to the consummation of the transactions contemplated thereby;
(c) by SHI, by written notice to MetalCo and A-VL Holdings, if there shall have been a breach by A-VL Holdings of any of its representations, warranties, covenants or agreements contained in this Agreement or a breach by MetalCo of any of its covenants or agreements contained in this Agreement, in each such case, which breach would result in the failure to satisfy one or more of the conditions set forth in Section 8.3 and in any such case such breach shall be incapable of being cured or, if capable of being cured, shall not have been cured prior to the earlier of (i) thirty (30) Business Days after providing written notice of such breach to A-VL Holdings or MetalCo, as applicable, and (ii) the applicable Termination Date; provided that SHI shall not have the right to terminate this Agreement pursuant to this Section 9.1(c) if SHI is then in breach of this Agreement and such breach would result in the failure of any of the conditions set forth in Section 8.1, Section 8.2 or Section 8.4;
(d) by SHI, by written notice to MetalCo and A-VL Holdings, if (i) all of the conditions in Sections 8.1, 8.2 and 8.4 have been satisfied or waived (other than those that by their nature are to be satisfied at the Closing), (ii) SHI has confirmed by written notice to MetalCo and A-VL Holdings that SHI is ready, willing, and able to consummate the Transactions, and (iii) MetalCo and/or A-VL Holdings fails to consummate the Transactions within two (2) Business Days following the delivery of such notice;
(e) by MetalCo, by written notice to SHI and A-VL Holdings, if there shall have been a breach by SHI or A-VL Holdings of any of their respective representations, warranties, covenants or agreements contained in this Agreement, which breach would result in the failure to satisfy one or more of the conditions set forth in Section 8.2, and in any such case such breach shall be incapable of being cured or, if capable of being cured, shall not have been cured prior to the earlier of (i) thirty (30) Business Days after providing written notice of such breach to SHI or A-VL Holdings, as applicable, and (ii) the applicable Termination Date; provided that MetalCo shall not have the right to terminate this Agreement pursuant to this Section 9.1(e) if MetalCo is then in breach of this Agreement and such breach would result in the failure of any of the conditions set forth in Section 8.1, Section 8.3 or Section 8.4; or
(f) by A-VL Holdings, by written notice to SHI and MetalCo, if there shall have been a breach by SHI or MetalCo of any of their respective representations, warranties, covenants or agreements contained in this Agreement which breach would result in the failure to satisfy one or more of the conditions set forth in Section 8.4, and in any such case such breach shall be incapable of being cured or, if capable of being cured, shall not have been cured prior to the earlier of (i) thirty (30) Business Days after providing written notice of such breach to SHI or MetalCo, as applicable, and (ii) the applicable Termination Date; provided that A-VL Holdings shall not have the right to terminate this Agreement pursuant to this Section 9.1(f) if A-VL Holdings is then in breach of this Agreement and such breach would result in the failure of any of the conditions set forth in Section 8.1, Section 8.2 or Section 8.3.
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In the event of any termination by any Party pursuant to Section 9.1 hereof, written notice thereof shall forthwith be given to the other Party or Parties, which written notice shall specify the provision or provisions hereof pursuant to which such termination is being effected, and this Agreement shall terminate (subject to the provisions of Section 9.2), and the Transactions shall be abandoned, without further action by any Party.
9.2 Effect of Termination. In the event that this Agreement is validly terminated in accordance with Section 9.1, this Agreement shall immediately become null and void and the Parties shall be relieved of their duties and obligations arising under this Agreement after the date of such termination and such termination shall be without liability to MetalCo, SHI or A-VL Holdings; provided that (a) no such termination shall relieve any Party from liability for any Fraud or any Willful Breach prior to the effective date of termination, as applicable, and the damages recoverable by the non-breaching Party shall include all attorneys’ fees reasonably incurred by such Party in connection with the Transactions; provided that in no event shall the aggregate liability of any Party for any breach of this Agreement prior to the Closing (including in respect of Fraud or Willful Breach) exceed an amount equal to the lesser of (x) $115,000,000 and (y) the aggregate amount of the reasonable and documented out-of-pocket fees, costs and expenses paid or payable to third parties (including counsel, accountants, financial advisors, consultants and Debt Financing Sources) by the other Parties and their respective Affiliates in connection with this Agreement, the other Transaction Documents and the Transactions (including the Debt Financing and the Equity Financing), in each case incurred through the date of such termination (the “Damages Cap”); provided, further, that that no Party shall be entitled to recover as damages hereunder any amount in respect of any fee, cost, expense or other payment to the extent such Party or any of its Affiliates (which, for the avoidance of doubt, shall include, in the case of A-VL Holdings, AIP, LLC and Fund IX) has recovered such fee, cost, expense or payment (whether by reimbursement, indemnification or otherwise) under the Cost Sharing Agreement or the Interim Investors Agreement, (b) any damages arising hereunder shall be payable solely pursuant to (i) a final non-appealable order or judgment of a court of competent jurisdiction or (ii) a written settlement agreement entered into among the Parties, and (c) the Confidentiality Agreement, the Cost Sharing Agreement and the provisions of Section 7.6, this Section 9.2 and Article XI (and any related definitional provisions set forth in Article I) shall survive any such termination and remain valid and binding obligations of each of the Parties.
ARTICLE X
INDEMNIFICATION
10.1 Survival. Except in the case of Fraud, none of the representations and warranties in this Agreement or in any certificate delivered hereunder nor any of the covenants and agreements in this Agreement shall survive the Closing, except for (a) those covenants and agreements contained herein that by their terms apply or are to be performed in whole or in part after the Closing which shall continue and survive the Closing until all obligations with respect thereto shall have been performed or satisfied or have been terminated in accordance with their
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terms (or if no period for performance is specified herein, they shall continue and survive indefinitely) and (b) this Article X and Article XI (and any corresponding definitions set forth in Article I) which shall continue and survive the Closing until all obligations with respect thereto shall have been performed or satisfied or have been terminated in accordance with their terms (or if no period for performance is specified herein, they shall continue and survive indefinitely). This Section 10.1 shall not limit any covenant or agreement of the Parties contained in this Agreement that by its terms contemplates performance after the Closing, and shall not extend the applicability of any covenant or agreement of the Parties contained in this Agreement that by its terms relates only to a period between the date of this Agreement and the Closing. For the avoidance of doubt, any claim for indemnification pursuant to Section 10.2(c) shall, except in the case of Fraud, survive for ninety (90) days following the expiration of the applicable statutes of limitation with respect to such claim.
10.2 Indemnification by SHI. Subject to the provisions of this Article X, effective as of and after the Closing, SHI shall indemnify, defend and hold harmless MetalCo and its Affiliates (including the Acquired Companies following the Closing), and their respective officers, directors, managers, employees, agents, representatives, successors and assigns (collectively, the “MetalCo Indemnified Parties”), from and against any and all Covered Losses incurred or suffered by any of the MetalCo Indemnified Parties, to the extent caused by, arising out of or resulting from:
(a) any breach of any covenant or agreement of SHI contained in this Agreement to be performed in whole or in part by SHI following the Closing (but only to the extent that such covenants and agreements contemplate performance in whole or in part after the Closing);
(b) any Liabilities of SHI or any of its Affiliates, whether arising prior to, at or following the Closing, to the extent relating to, arising out of or resulting from the Retained Business, including the employment or termination of employment of any employee of the Retained Business; provided that this Section 10.2(b) shall not apply to any Liability to the extent required to be indemnified by MetalCo or any Acquired Company in favor of SHI or any of its Subsidiaries (other than MetalCo and its Subsidiaries) pursuant to Section 8.1(b) of the IP License Agreement or Section 5.3(b) of the Transition Services Agreement;
(c) any (i) income Taxes arising from or relating to the Reorganization; (ii) Taxes arising from or relating to the settlement or elimination of any intercompany accounts or intercompany arrangements set forth in Section 7.16; (iii) Taxes of any Person (other than an Acquired Company) for which any Acquired Company is liable (A) under Treasury Regulations Section 1.1502-6 (or any analogous or similar provision of state, local or non-U.S. Law) as a result of having been, on or prior to the Closing Date, a member of any affiliated, consolidated, combined, unitary, aggregate, fiscal unity or similar group for any Tax purpose or (B) as a transferee or successor, or by Contract or otherwise by operation of Law, in each case of this clause (B), in respect of an event or transaction occurring on or prior to the Closing Date, and (iv) Taxes that are described on Schedule 10.2(c)(iv) of the Silgan Disclosure Schedules (such Taxes in clause (iv), the “Pre-Closing Indemnified Taxes”), in each case, other than any such Taxes or other amounts to the extent specifically taken into account in the determination of the Final Aggregate Adjustment Amount (as finally determined pursuant to Section 2.5);
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(d) (i) any Reorganization Costs in excess of the Reorganization Costs Cap, to the extent not paid or reimbursed by SHI pursuant to Section 11.1 or taken into account in Silgan Transaction Expenses, and (ii) any other Liabilities (including any income Taxes) to the extent arising out of, resulting from, or relating to any changes or modifications to the Reorganization Plan or the Restructuring Agreement, except to the extent such changes or modifications are (A) consented to in writing by MetalCo or (B) otherwise in accordance with Section 7.22, other than Reorganization Costs up to the Reorganization Costs Cap, which shall be borne by MetalCo in accordance with Section 11.1; and
(e) the matter described on Schedule 10.2(e) of the Silgan Disclosure Schedules (the “Specified Matter”).
10.3 Indemnification by MetalCo. Subject to the provisions of this Article X, effective at and after the Closing, MetalCo and its applicable Subsidiaries shall indemnify, defend and hold harmless SHI and its Affiliates, and their respective officers, directors, managers, partners, equityholders, members, employees, agents, representatives, successors and assigns (collectively, the “Silgan Indemnified Parties”), from and against any and all Covered Losses incurred or suffered by any of the Silgan Indemnified Parties to the extent caused by, arising out of or resulting from (a) any breach of any covenant or agreement of MetalCo contained in this Agreement to be performed in whole or in part by MetalCo following the Closing (but only to the extent that such covenants and agreements contemplate performance in whole or in part after the Closing) or (b) any Liabilities of MetalCo or any of its Subsidiaries (including the Acquired Companies), whether arising prior to, at or following the Closing, to the extent relating to, arising out of or resulting from the Acquired Companies or their respective assets or the Business, including the ownership or operation of the Acquired Companies or their respective assets or the Business and the employment or termination of employment of any employee of the Business (to the extent not covered by the definition of Silgan Transaction Expenses); provided that, Section 10.3(b) shall not apply to any Liability to the extent (i) indemnified by SHI under Section 10.2, (ii) taken into account in the determination of the Silgan Distribution Amount as finally determined pursuant to Section 2.5, (iii) resulting from, arising out of or relating to the Retained Business or (iv) required to be indemnified by SHI or any other Retained Company in favor of MetalCo or any of its Subsidiaries pursuant to Section 8.1(a) of the IP License Agreement or Section 5.3(a) of the Transition Services Agreement.
10.4 Indemnification by A-VL Holdings. Subject to the provisions of this Article X, effective at and after the Closing, A-VL Holdings shall indemnify, defend and hold harmless the MetalCo Indemnified Parties from and against any and all Covered Losses incurred or suffered by any of the MetalCo Indemnified Parties to the extent caused by, arising out of or resulting from any breach of any covenant or agreement of A-VL Holdings contained in this Agreement to be performed in whole or in part by A-VL Holdings following the Closing (but only to the extent that such covenants and agreements contemplate performance in whole or in part after the Closing).
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10.5 Procedures.
(a) A Person that may be entitled to be indemnified under this Agreement (the “Indemnified Party”) shall promptly notify the party or parties liable for such indemnification (the “Indemnifying Party”) in writing of any pending or threatened claim or demand that the Indemnified Party has determined has given rise to, or would reasonably be expected to give rise to, such right of indemnification (including a pending or threatened claim or demand asserted by a third party against the Indemnified Party, such claim being a “Third Party Claim”), describing in reasonable detail (taking into account the information then available to the Indemnified Party) the facts and circumstances with respect to the subject matter of such claim or demand; provided that the failure to provide such notice shall not release the Indemnifying Party from any of its obligations under Section 7.17(a), Section 7.17(b), Section 7.18(c), Section 7.21(a) and this Article X except to the extent that the Indemnifying Party is materially prejudiced by such failure (as determined by a court of competent jurisdiction), it being agreed that notices for claims in respect of a breach of a covenant or agreement must be delivered prior to the expiration of any applicable survival period specified in Section 10.1 for such covenant or agreement.
(b) Upon receipt of a notice of a Third Party Claim for indemnity from an Indemnified Party pursuant to Section 7.17(a), Section 7.17(b), Section 7.18(c), Section 7.21(a), Section 10.2 or Section 10.3, the Indemnifying Party will be entitled, by notice to the Indemnified Party delivered within twenty (20) Business Days of the receipt of notice of such Third Party Claim, to assume the defense and control of such Third Party Claim (at the expense of such Indemnifying Party) with counsel of the Indemnifying Party’s choice reasonably satisfactory to the Indemnified Party; provided that the Indemnifying Party shall not be entitled to assume the defense and control of such Third Party Claim, if (i) the Third Party Claim relates to or arises in connection with any criminal Legal Proceeding or (ii) the Third Party Claim seeks an injunction or equitable relief against the Indemnified Party or any of its Affiliates; provided, further, that if the Indemnifying Party assumes the defense and control of such Third Party Claim, the Indemnifying Party shall allow the Indemnified Party a reasonable opportunity to participate in the defense of such Third Party Claim with its own counsel and at its own expense (and shall consider in good faith the views of the Indemnified Party and its counsel); provided, however, that the Indemnifying Party shall pay the reasonable and documented fees and expenses of such separate external counsel if representation of both the Indemnifying Party and the Indemnified Party by the same counsel would create a conflict of interest. If the Indemnifying Party does not assume the defense and control of any Third Party Claim pursuant to this Section 10.5(b), the Indemnified Party shall be entitled to assume and control such defense and the Indemnifying Party shall pay the reasonable and documented fees and expenses of external counsel retained by the Indemnified Party, but the Indemnifying Party may nonetheless participate in, but not control, the defense of such Third Party Claim with its own counsel and at its own expense. MetalCo or SHI, as the case may be, shall, and shall cause each of its Affiliates and Representatives to, reasonably cooperate with the Indemnifying Party in the defense of any Third Party Claim, including by furnishing books and records, personnel and witnesses, as appropriate for any defense of such Third Party Claim. If the Indemnifying Party has assumed the defense and control of a Third Party Claim, it shall be authorized to consent to a settlement or compromise of, or the entry of any judgment arising from, any Third Party Claim, in its sole discretion and without the consent of any Indemnified Party; provided that such settlement or judgment does not involve any injunctive or other equitable relief or finding or admission of any violation of Law or admission of any wrongdoing by any Indemnified Party or any of its Affiliates and expressly unconditionally and irrevocably releases the Indemnified Party and its Affiliates from all Liabilities with respect to such Third Party Claim. No Indemnified Party will consent to the entry of any judgment or enter into any settlement or compromise with respect to a Third Party Claim without the prior written consent of the Indemnifying Party. For the avoidance of doubt, Section 7.9(f) shall control with respect to any Tax Proceeding (and not this Section 10.5).
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10.6 Exclusive Remedy and Release. MetalCo, SHI and A-VL Holdings acknowledge and agree that, except as set forth in any other Transaction Document, following the Closing, (x) the indemnification provisions of Section 7.17(a), Section 7.17(b), Section 7.18(c), Section 7.21(a) or Section 10.3 shall be the sole and exclusive remedies of SHI with respect to matters specifically set forth therein (y) the indemnification provisions of Section 7.17(a), Section 7.17(b), Section 7.21(a) and Section 10.2 shall be the sole and exclusive remedies of MetalCo (and, as applicable, A-VL Holdings) with respect to matters specifically set forth therein, in each case of the foregoing clauses (x) and (y), for any Covered Losses and any other losses and Liabilities from claims for breach of contract, warranty, tortious conduct (including negligence) or otherwise (and whether predicated on common law, statute, strict liability, or otherwise) that such Party may at any time suffer or incur, or become subject to, as a result of or in connection with this Agreement, the Transactions or the other transactions contemplated by this Agreement, including any breach of any representation or warranty in this Agreement by any Party, or any failure by any Party to perform or comply with any covenant or agreement that, by its terms, was to have been performed, or complied with, under this Agreement and the other Transaction Documents. Without limiting the generality of the foregoing and in furtherance thereof, the Parties hereby irrevocably waive (a) any right of rescission of this Agreement, and (b) other than as provided in the foregoing, any claims for breach of contract, warranty, tortious conduct (including negligence) or otherwise as a result of or in connection with this Agreement, the Transactions or the other transactions contemplated by this Agreement, following the Closing, whether predicated on common law, statute, strict liability or otherwise, that in either case of clause (a) or (b), they may otherwise have or to which they may become entitled, in each case, except in the case of Fraud. Nothing in this Section 10.6 shall limit (i) any Party’s right to equitable relief (including specific performance pursuant to Section 11.11) in respect of any covenant or agreement that survives the Closing in accordance with Section 10.1, (ii) any Party’s right to enforce any payment or reimbursement obligation expressly provided in this Agreement (including under Section 7.9 and Section 7.19), (iii) the rights and obligations of the Parties under Section 2.4 and Section 2.5, which shall be resolved exclusively in accordance with Section 2.5, or (iv) any right or remedy of any Person under any other Transaction Document to which such Person is a party, in accordance with the terms thereof.
10.7 Additional Indemnification Provisions.
(a) With respect to each indemnification obligation contained in this Agreement, all Covered Losses shall be net of (i) any third-party indemnity, contribution, insurance or similar proceeds that have been actually recovered by the Indemnified Party in connection with the facts giving rise to the right of indemnification (it being agreed that if third-party insurance or indemnification, contribution or similar proceeds in respect of such facts are recovered by the Indemnified Party subsequent to the Indemnifying Party’s making of an indemnification payment in satisfaction of its applicable indemnification obligation, such proceeds shall be promptly remitted to the Indemnifying Party to the extent of the indemnification payment made (net of applicable deductibles, limitations, co-payments, retro-premium obligations and premium increases attributable thereto, and all reasonable and documented out-of-pocket fees, costs and expenses incurred in connection with the collection of any such proceeds)) and (ii) any
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Tax benefit actually realized as a result of such Covered Loss in the taxable year of such Covered Loss (less any costs and expenses incurred in obtaining such Tax benefit), determined using the following conventions: (A) with respect to any Acquired Company organized outside the United States, Tax benefits shall be determined solely under the Tax Law of the jurisdiction of such Acquired Company, disregarding any U.S. federal, state or local Tax implications (including under Sections 951 and 951A of the Code); (B) with respect to any item of deduction or loss arising from such Covered Loss for U.S. federal income Tax purposes, (1) only the portion of such item allocable to A-VL Holdings shall be taken into account, (2) A-VL Holdings shall be deemed to be a corporation for U.S. federal income Tax purposes subject to a combined blended U.S. federal, state and local income Tax rate of 25%, and such portion shall be deemed actually realized in the taxable year of such Covered Loss to the extent such item is properly deductible in such taxable year or the next succeeding taxable year (taking into account any and all depreciation eligible under Section 168(k) of the Code to the extent permitted under applicable Law), and (3) no portion of any such item allocable to Silgan Holdings shall be taken into account; and (C) no Indemnified Party (or any direct or indirect equityholder thereof) shall be required to claim or pursue any Tax benefit, amend any Tax Return, alter any pre-existing Tax position or provide any Tax Return or other Tax information to any Person in connection with the determination of any Tax benefit, and any Tax benefit taken into account under this clause (ii) shall be determined without duplication of any amount paid or payable to SHI pursuant to Section 7.9(j) (Tax Refunds) or otherwise taken into account in the calculation of the Income Tax Liability Amount or Working Capital, and the Indemnified Party shall use, and cause its Affiliates to use, commercially reasonable efforts to seek full recovery under all insurance and indemnity, contribution or similar provisions covering such Covered Loss to the same extent as it would if such Covered Loss were not subject to indemnification hereunder. Upon making any payment to the Indemnified Party for any indemnification claim pursuant to this Article X, the Indemnifying Party shall be subrogated, to the extent of such payment, to any rights which the Indemnified Party may have against any third-party insurers and any third parties that do not have any material ongoing relationship with MetalCo, its Affiliates or the Business with respect to the subject matter underlying such indemnification claim, and the Indemnified Party shall assign any such rights to the Indemnifying Party upon the written request of the Indemnifying Party.
(b) Neither the MetalCo Indemnified Parties nor the Silgan Indemnified Parties shall be entitled to recover for the same Covered Loss more than once under this Article X or otherwise under this Agreement or any Transaction Document even if a claim for indemnification or otherwise in respect of such Covered Loss has been made as a result of a breach of more than one covenant, agreement or representation or warranty contained in this Agreement or any Transaction Document.
10.8 Limitation on Liability.
(a) Notwithstanding anything to the contrary contained in this Agreement (including this Article X), solely with respect to indemnifiable liability pursuant to Section 10.2, no Party shall be liable to any other Party or its Affiliates, or its or their respective Representatives, whether in contract, tort (including negligence and strict liability) or otherwise, at law or in equity, for any consequential, special, incidental, indirect or similar damages, including lost profits, diminution in value or damages calculated on a multiple of earnings or other similar metrics (in each case, except to the extent reasonably foreseeable) or exemplary or punitive damages (solely unless such exemplary or punitive damages are awarded by a court of competent jurisdiction in respect of a third-party claim).
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(b) Notwithstanding anything to the contrary in this Agreement, (i) no MetalCo Indemnified Party shall be entitled to indemnification for any Covered Losses attributable to Taxes: (A) imposed with respect to any taxable period (or portion thereof) beginning after the Closing Date (other than Taxes attributable to any Pre-Closing Tax Period or to the portion of any Straddle Period ending on the Closing Date (as determined in accordance with Section 7.9(d)), whenever assessed or imposed) or (B) to the extent attributable to MetalCo’s breach of any of the covenants contained in this Agreement and (ii) any Covered Losses attributable to Taxes shall be limited to the cash Tax liability that is imposed on the MetalCo Indemnified Parties, after taking into account (A) any available Tax attributes (including any net operating loss carryforwards) that are available and to the extent that such attributes actually reduce the cash Tax liability related to such Taxes and (B) any prior Tax payments or deposits made in connection with such Taxes that are available and to the extent that such attributed actually reduce the cash Tax liability related to such Taxes; provided that (x) Tax attributes shall be taken into account under clause (A) only to the extent attributable to a Pre-Closing Tax Period and actually available to the applicable Acquired Company in the taxable period in which such Taxes become payable, and (y) Tax payments and deposits shall be taken into account under clause (B) only to the extent made by SHI or any of its Affiliates prior to the Closing, and, in the case of both (A) and (B), not otherwise taken into account in the determination of the Final Aggregate Adjustment Amount.
10.9 Mitigation. Each Party agrees to mitigate its respective Covered Losses to the extent required by applicable Law upon and after becoming aware of any event or condition that would reasonably be expected to give rise to any Covered Losses that are indemnifiable hereunder.
10.10 Proportionate Recovery.
(a) Notwithstanding anything to the contrary in this Agreement or any other Transaction Document (including Section 10.8 and any provision excluding Fraud from any limitation on liability or recovery), following the Closing, if SHI or A-VL Holdings, or any Person claiming by, through or on behalf of such persons, asserts a MetalCo Claim, the MetalCo Losses recoverable in respect of such MetalCo Claim shall in all cases be limited to (i) such MetalCo Losses multiplied by (ii) the Ownership Percentage of SHI or A-VL Holdings, as applicable. The Ownership Percentage is determined as of the date on which the MetalCo Losses are incurred or suffered. For the avoidance of doubt, this Section 10.10 applies only to the extent such MetalCo Losses are otherwise recoverable under this Agreement.
(b) For the avoidance of doubt, (i) this Section 10.10 shall not apply to any Covered Losses incurred or suffered directly by SHI or A-VL Holdings other than MetalCo Losses, including Covered Losses arising from any claim asserted by a third party directly against it, and its reasonable out-of-pocket costs of enforcing its rights under this Section 10.10 and (ii) this Section 10.10 shall not apply to, or limit the Covered Losses recoverable by MetalCo in respect of, any claim asserted by or in the name of MetalCo or any of its Subsidiaries.
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(c) The Parties acknowledge that, as of the Closing, the Business will be owned and operated through MetalCo and its Subsidiaries, each of SHI and A-VL Holdings bears MetalCo Losses only indirectly, in proportion to its Ownership Percentage and the amount determined under Section 10.10 is the full measure of the MetalCo Losses suffered by SHI or A-VL Holdings as applicable in respect of a MetalCo Claim, including a MetalCo Claim for Fraud.
ARTICLE XI
MISCELLANEOUS
11.1 Expenses. Whether or not the Transactions are consummated, and except as otherwise provided in this Agreement (including this Section 11.1) or the Cost Sharing Agreement, each Party will bear its respective fees, costs and expenses incurred in connection with the preparation, negotiation, execution and performance of this Agreement or the Transactions (including legal, accounting and other professional fees). Without prejudice to the cost sharing provisions of the Cost Sharing Agreement, MetalCo shall pay, and be solely responsible for, without duplication, (a) the fees and expenses of MetalCo expressly contemplated under this Agreement, including (i) any fees and expenses associated with obtaining the Cyber Tail Policy pursuant to Section 7.18(e), (ii) any fees and expenses associated with obtaining the Cyber Insurance Policy pursuant to Section 7.18(f), (iii) any fees and expenses associated with obtaining the Phase I Reports pursuant to Section 7.26, (iv) Reorganization Costs up to an aggregate amount equal to the Reorganization Costs Cap (with any Reorganization Costs in excess of the Reorganization Costs Cap being borne by SHI as Silgan Transaction Expenses or in accordance with this Section 11.1), (b) the fees and expenses of Linklaters Netherlands and Deloitte incurred in connection with the Reorganization or the German Reorganization and (c) all other fees, costs and expenses payable or reimbursable by MetalCo pursuant to the Cost Sharing Agreement, in each case, whether incurred prior to, at or following the Closing (the items in (a) – (c), collectively, the “MetalCo Expenses”). At the Closing, (A) MetalCo shall pay all accrued but unpaid MetalCo Expenses and reimburse each of SHI and A-VL Holdings (and their respective Affiliates) for all reasonable and documented out-of-pocket fees and expenses incurred by such Party in connection with the preparation, negotiation, execution and performance of this Agreement or the Transactions (including legal, accounting and other professional fees and any MetalCo Expenses previously paid by such Party or its controlled Affiliates), to the extent provided in, and in accordance with, the Cost Sharing Agreement and (B) MetalCo shall reimburse SHI for (x) all Reorganization Costs paid by SHI or its Affiliates (other than the Acquired Companies) prior to the Closing, up to the Reorganization Costs Cap, and (y) any fees and expenses of Linklaters Netherlands and Deloitte incurred in connection with the Reorganization or German Reorganization and paid by SHI or its Affiliates (other than the Acquired Companies) prior to the Closing, and SHI shall deliver to MetalCo, together with the Closing Statement, a statement setting forth in reasonable detail all such fees, costs and expenses incurred through the Calculation Time (whether paid or unpaid) and the Reorganization Costs Cap remaining. Following the Closing, SHI shall pay or reimburse MetalCo for any Reorganization Costs in excess of the Reorganization Costs Cap (to the extent not taken into account in Silgan Transaction Expenses) within thirty (30) days after receipt of reasonable supporting documentation. In the event of any conflict between this Section 11.1 and the Cost Sharing Agreement, the Cost Sharing Agreement shall control. Notwithstanding the foregoing, if any Party obtains an injunction, a decree or order of specific performance or other remedy, the other Party (other than an Affiliate of such Party) shall reimburse such Party for all out-of-pocket expenses (including all fees and expenses of counsel, accountants, financial advisors, experts and consultants) incurred by or on behalf of such Party or any Affiliate of such Party in connection with obtaining such injunction, a decree or Order of specific performance or other remedy.
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11.2 Governing Law; Jurisdiction; Consent to Service of Process; Waiver of Jury.
(a) This Agreement and all Related Claims shall be governed by, and construed and enforced in accordance with, the internal Laws of the State of Delaware, including its statute of limitations, without regard to any borrowing statute that would result in the application of the statutes of limitations or repose of any other jurisdiction. In furtherance of the foregoing, the Laws of the State of Delaware will control even if under such jurisdiction’s choice of law or conflict of law analysis, the substantive or procedural Law of some other jurisdiction would ordinarily or necessarily apply.
(b) Subject to the provisions of Section 11.14, all Legal Proceedings arising out of or relating to this Agreement, the negotiation, validity, performance, enforcement or interpretation of this Agreement or the Transactions shall be filed and resolved in the Delaware Court of Chancery, or in the absence of jurisdiction in the Delaware Court of Chancery, the United States District Court for the District of Delaware, or in the absence of jurisdiction in such federal court, the Delaware Superior Court (and in each case, the appropriate Delaware appellate court or federal appellate court) and each of the Parties hereby irrevocably submits to the exclusive jurisdiction of such court over all Related Claims and the Parties hereby irrevocably agree that all Related Claims shall be heard and determined in such court. The Parties hereby irrevocably waive, to the fullest extent permitted by applicable Law, any objection that they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum for the maintenance of such dispute. The Parties agree that a final judgment with respect to any such Related Claim shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Law.
(c) Each of the Parties hereby consents to process being served by any Party in any Legal Proceeding by the delivery of a copy thereof (other than by e-mail) in accordance with the provisions of Section 11.5.
(d) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY LEGAL PROCEEDING, DIRECTLY OR INDIRECTLY, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY RELATED CLAIM IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUCH LEGAL PROCEEDING OR RELATED CLAIM. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT: (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF SUCH LEGAL PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER; (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (III) IT MAKES THIS WAIVER VOLUNTARILY AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.2(D).
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11.3 Entire Agreement.
(a) This Agreement (including the Silgan Disclosure Schedules and any other Schedules and Exhibits hereto), the other Transaction Documents, the Confidentiality Agreement, and each other agreement, document, instrument or certificate contemplated hereby, executed or to be executed in connection with the Transactions (collectively, the “Specified Documents”), represent the entire understanding and agreement between the Parties with respect to the subject matter hereof and thereof, and supersede all prior and contemporaneous agreements, discussions, negotiations, correspondence, communications, undertakings and understandings among the Parties with respect to the Transactions. The Parties have voluntarily agreed to define their rights, liabilities and obligations with respect to the Transactions exclusively in contract pursuant to the express terms and provisions of this Agreement and the other Specified Documents, and the Parties expressly disclaim that they are owed any duties or are entitled to any remedies not expressly set forth in this Agreement or the other Specified Documents. Furthermore, the Parties each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations; the Parties specifically acknowledge that no Party has any special relationship with another Party that would justify any expectation beyond that of ordinary parties in an arm’s-length transaction.
(b) The sole and exclusive remedies for any breach of the terms and provisions of this Agreement (including any representations and warranties set forth herein, made in connection herewith or as an inducement to enter into this Agreement) or any claim or cause of action otherwise arising out of or related to the Transactions (other than in the case of Fraud) shall be those remedies available at law or in equity for breach of contract against the Parties to this Agreement only (as such contractual remedies have been further limited or excluded pursuant to the express terms of this Agreement), and the Parties hereby agree that no Party shall have any remedies or causes of action (whether in contract, tort, statute or otherwise) for any statements, communications, disclosures, failures to disclose, representations or warranties not explicitly set forth in this Agreement. Nothing in this Section 11.3(b) shall limit the obligations of any Person under, or any right or remedy of any Person under, any other Transaction Document to which such Person is a party, in accordance with the terms thereof.
11.4 Amendments and Waivers. This Agreement may not be amended except by an instrument in writing signed by MetalCo, A-VL Holdings and SHI. No waiver by any Party of any provision of this Agreement or any breach of this Agreement hereunder, whether intentional or not, shall be valid unless the same shall be in writing and signed by the Party making such waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, shall be deemed to constitute a waiver by the Party taking such action of compliance with any representation, warranty, covenant, or agreement contained herein. The waiver by any Party of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
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11.5 Notices. All notices, requests, instructions, demands and other communications under this Agreement shall be in writing and shall be deemed given (a) when delivered personally by hand (with written confirmation of receipt), (b) when sent by e-mail (provided that non-automated confirmation of email receipt is obtained) on the date of such transmission or (c) when received by the addressee if sent by nationally recognized overnight delivery service (with written confirmation of receipt), in each case, at the following addresses (or to such other address as a Party may have specified by notice given to the other Parties pursuant to this provision) (provided that all notices and other communications shall be sent by e-mail even if another method of delivery is also used):
If to SHI, to:
Silgan Holdings Inc.
601 Merritt Seven, Floor 1
Norwalk, CT 06851
Attention: Frank W. Hogan, III
E-mail: [ * * * ]
With a copy (which shall not constitute notice) to:
Jenner & Block LLP
1155 Avenue of the Americas
New York, NY 10036
Attention: Robert Rawn; Oleksandr Polonyk
E-mail: RRawn@jenner.com; OPolonyk@jenner.com
If to A-VL Holdings:
A-VL Holdco, LP
c/o 450 Lexington Ave, 40th Floor
New York, NY 10017
Attention: Eric Baroyan; General Counsel
E-mail: [ * * * ]
With a copy (which shall not constitute notice) to:
Simpson Thacher & Bartlett LLP
2475 Hanover Street
Palo Alto, CA 94304
Attention: Atif Azher; Naveed Anwar; Sherry Shen
E-mail: aazher@stblaw.com; naveed.anwar@stblaw.com;
sherry.shen@stblaw.com
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If to MetalCo or to the Acquired Companies (after Closing), to:
Silgan Metal Packaging LLC
601 Merritt Seven, Floor 1
Norwalk, CT 06851
Attention: Frank W. Hogan, III
E-mail: [ * * * ]
With a copy (which shall not constitute notice) to:
A-VL Holdco, LP
c/o 450 Lexington Ave, 40th Floor
New York, NY 10017
Attention: Eric Baroyan; General Counsel
E-mail: [ * * * ]
and
Sidley Austin LLP
787 7th Ave
New York, NY 10019
Attention: Justin A. Macke; Adrian Zhang
E-mail: jmacke@sidley.com; adrian.zhang@sidley.com
11.6 Severability. If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any Law or public policy, all other terms or provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the Transactions is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the Transactions are consummated as originally contemplated to the greatest extent possible.
11.7 Binding Effect; Assignment. This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. No assignment of this Agreement or of any rights or obligations hereunder may be made by any Party, directly or indirectly (by operation of Law or otherwise), without the prior written consent of the other Parties and any attempted assignment without the required consents shall be void; provided that MetalCo may, in its sole discretion, without the consent of any other Parties, assign its rights, interests and obligations hereunder (a) to any Affiliate of MetalCo, but must remain liable hereunder, and (b) for collateral security purposes to any lender providing financing to MetalCo. No assignment of any obligations hereunder shall relieve the Parties of any such obligations.
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11.8 No Third Party Beneficiaries. Except as expressly provided herein, this Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing in this Agreement, express or implied, shall give or be construed to give any rights, remedies or claims of any nature upon any Person other than the Parties and their respective successors or permitted assigns; provided, however, that the Parties specifically acknowledge and agree that (i) the provisions of Section 11.12 hereof are intended to be for the benefit of, and shall be enforceable by, the MetalCo Released Parties and the Silgan Released Parties, (ii) the Debt Financing Sources are express third-party beneficiaries of, and may enforce, any of the provisions of Section 11.14 and (iii) the Non-Parties are express third-party beneficiaries of, and may enforce Section 11.10. All of the Persons identified as third-party beneficiaries in the immediately preceding sentence shall be entitled to enforce such provisions and to avail themselves of the benefits of any remedy for any breach of such provisions, all to the same extent as if such Persons were parties to this Agreement.
11.9 Legal Representation.
(a) MetalCo hereby agrees, on behalf of itself and its Affiliates (including, following the Closing, the Acquired Companies) (all such parties, the “Waiving Parties”), that (i) Jenner & Block LLP (or any successor) (“Jenner”) may represent SHI or any of its directors, members, partners, officers, employees or Affiliates (collectively, the “Silgan Group”) in connection with any dispute, litigation, claim, proceeding or obligation arising out of or relating to this Agreement, any Transaction Documents or the transactions contemplated hereby or thereby adverse to the Waiving Parties, notwithstanding its representation of the Acquired Companies. MetalCo, on behalf of itself and the Waiving Parties, hereby consents thereto and waives (and will not assert) any conflict of interest, breach of duty or any other objection arising therefrom or relating thereto.
(b) MetalCo, on behalf of itself and the Waiving Parties, hereby acknowledges and agrees that all communications, written or oral, between any of the Acquired Companies or any Person in the Silgan Group and its counsel currently representing SHI and the Acquired Companies in connection with this Agreement, the other Transaction Documents or any other agreements or transactions contemplated hereby, including Jenner, made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Legal Proceeding arising out of or relating to, this Agreement, any Transaction Documents or the Transactions, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Acquired Companies notwithstanding the Transactions, and instead survive, remain with and are controlled by SHI (the “Privileged Communications”), without any waiver thereof.
(c) MetalCo, on behalf of itself and the Waiving Parties, hereby further agrees that none of MetalCo or any of its Affiliates (including, following the Closing, the Acquired Companies) shall have the right to use any such Privileged Communications. Notwithstanding the foregoing, this Section 11.9 shall not apply to claims for Fraud or any dispute or Legal Proceeding involving any Person other than the Silgan Group.
11.10 Non-Recourse. Except in the case of Fraud, (a) this Agreement may only be enforced against, and any Related Claims may only be made or asserted against (and are expressly limited to) the Persons that are expressly identified as the Parties in the preamble to and signature pages of this Agreement and then solely in their capacities as such and solely with respect to the specific obligations set forth herein with respect to such Person; (b) no Person who is not a named party to this Agreement, including any current, former or future Affiliate or Related Person
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or Representative of any Party or any current, former, or future Affiliate or Representative of any of the foregoing (such Persons, collectively, but specifically excluding the Parties, “Non-Parties”), shall have or be deemed to have any liability (whether at law or in equity, based upon contract, tort, statute, based upon any theory that seeks to impose liability of any Party against its owners or Affiliates or otherwise) for any obligations or liabilities whatsoever arising under, in connection with or related to this Agreement, the Transactions (or in respect of any oral representations made or alleged to be made in connection therewith) or for any Related Claim and, to the maximum extent permitted by applicable Law, each Party hereby irrevocably disclaims reliance on any such Non-Party and irrevocably waives and releases all such liabilities, obligations and Related Claims against any such Non-Party; and (c) without limiting the rights of any Party against the other Parties as set forth herein, in no event shall any Party, any of its Affiliates or any Person claiming by, through or on behalf of any of them institute any Related Claim against any Non-Party. Notwithstanding anything to the contrary in this Section 11.10, nothing in this Section 11.10 shall (x) be deemed to limit any liabilities of the Equity Financing Source or A-VL Holdings to MetalCo or SHI under the Equity Commitment Letter or serve as a waiver of any right on the part of MetalCo or SHI (including as an express third-party beneficiary of the Equity Commitment Letter) to initiate any Legal Proceedings permitted pursuant to, and in accordance with, the specific terms of the Equity Commitment Letter, (y) limit claims of any Party for Fraud, and (z) limit the obligations of any Person under, or any right or remedy of any Person under, any other Transaction Document to which such Person is a party, in accordance with the terms thereof.
11.11 Specific Performance.
(a) The Parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, and that money damages or legal remedies would not be an adequate remedy for any such damages. Therefore, it is accordingly agreed that prior to the valid termination of this Agreement in accordance with Section 9.1, each Party shall be entitled to seek an injunction or injunctions to prevent or restrain any breach or threatened breach of this Agreement by any other Party and to enforce specifically the terms and provisions of this Agreement, to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of any other Party, in any court of competent jurisdiction. Such remedies shall be in addition to and not in substitution for any other remedy to which such Party is entitled at law or in equity. If, prior to the applicable Termination Date, any Party brings any Legal Proceeding, in each case, in accordance with Section 11.2, to enforce specifically the performance of the terms and provisions hereof by any other Party, the applicable Termination Date shall be automatically extended by (i) the amount of time during which such Legal Proceeding is pending, plus 20 Business Days or (ii) such other time period established by the court presiding over such Legal Proceeding, as the case may be; provided that in no event shall the applicable Termination Date be extended pursuant to this Section 11.11(a) beyond April 13, 2028.
(b) Each Party hereby (i) agrees not to oppose the granting of an injunction, specific performance or other equitable relief as provided herein, on the basis that the other Party has an adequate remedy at law and (ii) waives any requirement under any Law to post a bond or other security as a prerequisite to obtaining equitable relief.
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(c) The Parties agree that (i) by seeking the remedies provided for in this Section 11.11, no Party shall in any respect waive its right to seek at any time any other form of relief that may be available to it under this Agreement or any other Transaction Document (including monetary damages) in the event that this Agreement has been terminated or in the event that the remedies provided for in this Section 11.11 are not available or otherwise are not granted, and (ii) nothing set forth in this Section 11.11 shall require any Party to institute any proceeding for (or limit any Party’s right to institute any proceeding for) specific performance under this Section 11.11 prior to or as a condition to exercising any termination right under Article IX, nor shall the commencement of any Legal Proceeding pursuant to this Section 11.11 or anything set forth in this Section 11.11 restrict or limit any Party’s right to terminate this Agreement in accordance with the terms of Article IX or pursue any other remedies under this Agreement or any other Transaction Document that may be available then or thereafter.
(d) Notwithstanding anything in this Agreement to the contrary, if and only if all of the conditions set forth in Section 2 of the Equity Commitment Letter have been satisfied (it being agreed that A-VL Holdings shall not be entitled to assert the failure of any such condition that the Equity Financing Source is not entitled to assert thereunder): (i) A-VL Holdings shall cause the Equity Financing to be funded at the Closing and (ii) each of SHI and MetalCo shall be entitled to (A) specific performance of A-VL Holdings’ obligations under this Agreement, including the obligation set forth in clause (i) and A-VL Holdings’ obligations to consummate the Transactions and effect the Closing, and (B) enforce the Equity Commitment Letter directly against the Equity Financing Source and/or A-VL Holdings in accordance with its terms (including specific performance of the Equity Financing Source’s obligation to fund the Equity Financing Commitment and of A-VL Holdings’ obligation to apply the proceeds thereof), in each case of (A) and (B), in accordance with, and subject to no conditions other than those set forth in, Section 2 of the Equity Commitment Letter. Nothing in this Section 11.11(d) shall limit the rights of the Parties under the other provisions of this Section 11.11, or the right of any Party to enforce any other obligation under this Agreement or the Equity Commitment Letter, in each case in accordance with its terms.
11.12 Release.
(a) Effective as of the Closing Date, except for any rights or obligations under this Agreement or the other Transaction Documents, MetalCo on behalf of itself and each of its Affiliates (including the Acquired Companies) and each of its current, former and future officers, directors, employees, partners, members, advisors, successors and assigns (collectively, the “MetalCo Releasing Parties”), hereby irrevocably and unconditionally waives, releases and forever discharges SHI, its Affiliates and each of their respective current, former and future officers, directors, employees, partners, members, owners, advisors, successors and assigns (collectively, the “Silgan Released Parties”) of and from any and all actions, causes of action, suits, proceedings, executions, judgments, duties, debts, dues, accounts, bonds, contracts and covenants (whether express or implied), and claims and demands whatsoever whether in law or in equity which the MetalCo Releasing Parties now have or in the future may have against each of the Silgan Released Parties, in each case, in respect of any cause, matter or thing relating to the ownership of the Business by the Silgan Released Parties, in each case, occurring or arising on or prior to the Closing Date, but, to the extent applicable, only to the extent that such cause, matter or thing does not otherwise constitute Fraud. MetalCo, on behalf of itself and each MetalCo Releasing Party, covenants and agrees that no MetalCo Releasing Party shall assert any such claim against the Silgan Released Parties.
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(b) Effective as of the Closing Date, except for any rights or obligations under this Agreement or the other Transaction Documents, SHI on behalf of itself and each of its Affiliates and each of its current, former and future officers, directors, employees, partners, members, advisors, successors and assigns (collectively, the “Silgan Releasing Parties”), hereby irrevocably and unconditionally waives, releases and forever discharges MetalCo, the Acquired Companies and their respective Affiliates and each of their respective current, former and future officers, directors, employees, partners, members, owners, advisors, successors and assigns (collectively, the “MetalCo Released Parties”) of and from any and all actions, causes of action, suits, proceedings, executions, judgments, duties, debts, dues, accounts, bonds, contracts and covenants (whether express or implied), and claims and demands whatsoever whether in law or in equity which the Silgan Releasing Parties now have or in the future may have against each of the MetalCo Released Parties, in each case, in respect of any cause, matter or thing relating to the ownership of the Business by the MetalCo Released Parties, in each case, occurring or arising on or prior to the Closing Date, but, to the extent applicable, only to the extent that such cause, matter or thing does not otherwise constitute Fraud. SHI, on behalf of itself and each Silgan Releasing Party, covenants and agrees that no Silgan Releasing Party shall assert any such claim against the MetalCo Released Parties.
11.13 Counterparts. This Agreement may be executed in one or more counterparts including by means of electronic transmission, such as by electronic mail in “.pdf” form, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement.
11.14 Debt Financing Sources. Notwithstanding anything in this Agreement to the contrary, SHI, on behalf of itself, the Acquired Companies and each of its controlled Affiliates hereby:
(a) without limiting the rights of MetalCo under the Debt Commitment Letter or any right or remedy available to any Person under the definitive documentation governing the Debt Financing, agrees that none of the Debt Financing Sources will have any liability to the Acquired Companies, SHI or any of their respective controlled Affiliates relating to or arising out of this Agreement, the Debt Financing, the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, whether in law or in equity, whether in contract or in tort or otherwise;
(b) agrees that any proceeding, whether in law or in equity, whether in contract or in tort or otherwise, involving the Debt Financing Sources, arising out of or relating to, this Agreement, the Debt Financing or any of the agreements (including the Debt Commitment Letter) entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder shall be subject to the exclusive jurisdiction of any federal or state court in the Borough of Manhattan, New York, New York, and any appellate court thereof and each Party irrevocably submits itself and its property with respect to any such proceeding to the exclusive jurisdiction of such court;
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(c) agrees that any such proceeding shall be governed by the Laws of the State of New York (without giving effect to any conflicts of law principles that would result in the application of the Laws of another state), except as otherwise provided in the Debt Commitment Letter or other applicable definitive document relating to the Debt Financing;
(d) agrees not to bring or support or permit any of its Affiliates to bring or support any proceeding of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, against any Debt Financing Source in any way arising out of or relating to, this Agreement, the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder in any forum other than any federal or state court in the Borough of Manhattan, New York, New York;
(e) agrees that service of process upon SHI, the Acquired Companies or their respective controlled Affiliates in any such proceeding shall be effective if notice is given in accordance with Section 11.5;
(f) irrevocably waives, to the fullest extent that it may effectively do so, the defense of an inconvenient forum to the maintenance of such Legal Proceeding in any such court;
(g) knowingly, intentionally and voluntarily waives, to the fullest extent permitted by Law, trial by jury in any proceeding involving any Debt Financing Source in any way arising out of or relating to this Agreement, the Debt Financing, the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; and
(h) agrees that the Debt Financing Sources are express third-party beneficiaries of, and may enforce, any of the provisions of this Section 11.14 and that such provisions and the definition of “Debt Financing Source” (and the other related definitions used in such provisions and definition and any other provisions of this Agreement to the extent an amendment thereof would serve to modify or waive the substance of such provisions or definitions) shall not be amended in any way adverse to any Debt Financing Source without the prior written consent of such Debt Financing Source.
Notwithstanding the foregoing, nothing in this Section 11.14 shall in any way limit or modify the rights and obligations of MetalCo under this Agreement or any Debt Financing Source’s obligations to MetalCo under any debt commitment letter or to MetalCo (and following the Closing Date, the Acquired Companies) under the definitive agreements governing the Debt Financing. This Section 11.14 shall, with respect to the matters referenced herein, supersede any provision of this Agreement to the contrary.
** REMAINDER OF PAGE INTENTIONALLY LEFT BLANK **
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their respective authorized officers, as of the date first written above.
| METALCO: | ||
| SILGAN METAL PACKAGING LLC | ||
| By: |
/s/ Frank W. Hogan, III | |
| Name: Frank W. Hogan, III | ||
| Title: Vice President and Secretary | ||
[SIGNATURE PAGE TO TRANSACTION AGREEMENT]
| SHI: | ||
| SILGAN HOLDINGS INC. | ||
| By: |
/s/ Frank W. Hogan, III | |
| Name: Frank W. Hogan, III | ||
| Title: Executive Vice President, General Counsel and Secretary | ||
[SIGNATURE PAGE TO TRANSACTION AGREEMENT]
| A-VL HOLDINGS: | ||
| A-VL HOLDCO, LP | ||
| By: AIPCF IX, LLC, its general partner | ||
| By: |
/s/ Stanley Edme | |
| Name: Stanley Edme | ||
| Title: Authorized Signatory | ||
[SIGNATURE PAGE TO TRANSACTION AGREEMENT]
EXHIBIT A
Sample Working Capital Schedule
[See attached.]
EXHIBIT B
Transaction Accounting Principles
[See attached.]
EXHIBIT C
Form of Transition Services Agreement
[See attached.]
EXHIBIT D
Form of IP License Agreement
[See attached.]
EXHIBIT E
Form of Restrictive Covenant Agreement
[See attached.]
EXHIBIT F
Reorganization Steps Plan
[See attached.]
EXHIBIT G
Joint Procurement Term Sheet
[See attached.]
EXHIBIT H
Form of MetalCo LLC Agreement
[See attached.]
STRICTLY CONFIDENTIAL
SILGAN METAL PACKAGING LLC
FIRST AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT
Dated as of [•]
THE LIMITED LIABILITY COMPANY INTERESTS (THE “INTERESTS”) OF SILGAN METAL PACKAGING LLC HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), THE SECURITIES LAWS OF ANY STATE OR ANY OTHER APPLICABLE SECURITIES LAWS IN RELIANCE UPON EXEMPTIONS FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND SUCH LAWS. SUCH INTERESTS MUST BE ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE OFFERED FOR SALE, PLEDGED, HYPOTHECATED, SOLD, ASSIGNED OR TRANSFERRED AT ANY TIME EXCEPT IN COMPLIANCE WITH (I) THE SECURITIES ACT, ANY APPLICABLE STATE SECURITIES LAWS, AND ANY OTHER APPLICABLE SECURITIES LAWS; AND (II) THE TERMS AND CONDITIONS OF THIS AGREEMENT. THE INTERESTS MAY NOT BE TRANSFERRED OF RECORD EXCEPT IN COMPLIANCE WITH SUCH LAWS AND THIS AGREEMENT. THEREFORE, HOLDERS OF SUCH INTERESTS WILL BE REQUIRED TO BEAR THE RISK OF THEIR INVESTMENT FOR AN INDEFINITE PERIOD OF TIME.
Table of Contents
| Page | ||||||||
| ARTICLE I DEFINITIONS | 2 | |||||||
| Section 1.1. | Definitions |
2 | ||||||
| Section 1.2. | General Interpretive Principles |
24 | ||||||
| ARTICLE II FORMATION; PURPOSE | 24 | |||||||
| Section 2.1. | Formation of Company |
24 | ||||||
| Section 2.2. | Name |
24 | ||||||
| Section 2.3. | Organizational Certificates and Other Filings |
25 | ||||||
| Section 2.4. | Purpose and Powers |
25 | ||||||
| Section 2.5. | Mergers |
26 | ||||||
| Section 2.6. | Principal Place of Business; Other Places of Business |
26 | ||||||
| Section 2.7. | Registered Office and Registered Agent |
26 | ||||||
| ARTICLE III MEMBERS; UNITS | 26 | |||||||
| Section 3.1. | Names, Addresses and Capital Contributions of Members |
26 | ||||||
| Section 3.2. | Form of Contributions |
26 | ||||||
| Section 3.3. | Member Loans |
26 | ||||||
| Section 3.4. | Issuance and Creation of Units; Voting |
27 | ||||||
| Section 3.5. | Certificates for Units |
27 | ||||||
| Section 3.6. | Capital Contributions |
27 | ||||||
| Section 3.7. | Limitation on Liability |
27 | ||||||
| Section 3.8. | Waiver of Partition and Accounting |
28 | ||||||
| Section 3.9. | Admission of Additional Members and Substitute Members |
28 | ||||||
| ARTICLE IV GOVERNANCE | 28 | |||||||
| Section 4.1. | Management of the Company; Board of Directors |
28 | ||||||
| Section 4.2. | Officers |
33 | ||||||
| Section 4.3. | Matters Requiring Approval of Certain Unitholders |
33 | ||||||
| Section 4.4. | Business Perspective |
39 | ||||||
| Section 4.5. | Management Investment Vehicles |
39 | ||||||
| Section 4.6. | Pension Plans |
40 | ||||||
| Section 4.7. | TSA Matters |
41 | ||||||
| ARTICLE V ACCOUNTING AND RECORDS | 41 | |||||||
| Section 5.1. | Records and Accounting |
41 | ||||||
| Section 5.2. | Access to Accounting Records |
41 | ||||||
| Section 5.3. | Accounting Matters |
41 | ||||||
| Section 5.4. | Tax Returns |
41 | ||||||
| Section 5.5. | Treatment as Partnership |
42 | ||||||
| Section 5.6. | Section 754 Election |
42 | ||||||
| Section 5.7. | Tax Matters Member |
42 | ||||||
| Section 5.8. | Section 245A Elections |
43 | ||||||
i
| ARTICLE VI CAPITAL ACCOUNTS; ALLOCATIONS; DISTRIBUTIONS | 43 | |||||||
| Section 6.1. | Capital Accounts |
43 | ||||||
| Section 6.2. | Allocations of Net Income and Net Loss and Other Tax Matters |
43 | ||||||
| Section 6.3. | Distributions |
46 | ||||||
| ARTICLE VII TRANSFER RESTRICTIONS | 49 | |||||||
| Section 7.1. | General Restrictions on Transfers |
49 | ||||||
| Section 7.2. | Certain Permitted Transfers |
52 | ||||||
| Section 7.3. | Restrictions on Transfers |
52 | ||||||
| Section 7.4. | Drag Along Rights |
53 | ||||||
| Section 7.5. | Spin-Off |
55 | ||||||
| Section 7.6. | A-VL Investors Spin-Off Request; Silgan Investors Call Right |
59 | ||||||
| Section 7.7. | A-VL Blocker Entities |
65 | ||||||
| ARTICLE VIII REGISTRATION RIGHTS | 67 | |||||||
| Section 8.1. | Registration Rights |
67 | ||||||
| ARTICLE IX PREEMPTIVE RIGHTS | 67 | |||||||
| Section 9.1. | Right of Participation |
67 | ||||||
| Section 9.2. | Excluded Transactions |
68 | ||||||
| Section 9.3. | Certain Definitions used in this Article IX |
69 | ||||||
| Section 9.4. | Termination of Article IX |
69 | ||||||
| ARTICLE X CALL RIGHTS ON EMPLOYEE EQUITY | 69 | |||||||
| Section 10.1. | General |
69 | ||||||
| Section 10.2. | Call Option of the Company |
70 | ||||||
| Section 10.3. | Call Option of the Investors |
71 | ||||||
| Section 10.4. | Settlement with a Company Note |
71 | ||||||
| Section 10.5. | Financing Restriction |
71 | ||||||
| Section 10.6. | Certain Definitions used in this Article X |
71 | ||||||
| ARTICLE XI ADDITIONAL AGREEMENTS | 72 | |||||||
| Section 11.1. | Further Assurances |
72 | ||||||
| Section 11.2. | Other Businesses; Waiver of Certain Duties |
72 | ||||||
| Section 11.3. | Confidentiality |
73 | ||||||
| Section 11.4. | Restriction on Employee Equity Program; Management Incentive Plan |
75 | ||||||
| Section 11.5. | Legend on Securities Certificates |
75 | ||||||
| Section 11.6. | Expense Reimbursement; Monitoring Expenses; Cost Sharing Agreement |
75 | ||||||
| Section 11.7. | Information Rights |
76 | ||||||
| Section 11.8. | Insurance |
77 | ||||||
| ARTICLE XII ADDITIONAL PARTIES; REPS AND WARRANTIES | 77 | |||||||
| Section 12.1. | Additional Parties |
77 | ||||||
| Section 12.2. | Representations and Warranties |
77 | ||||||
ii
| ARTICLE XIII LIABILITY, EXCULPATION AND INDEMNIFICATION | 78 | |||||||
| Section 13.1. | Duties of Covered Persons |
78 | ||||||
| Section 13.2. | Exculpation |
78 | ||||||
| Section 13.3. | Indemnification |
79 | ||||||
| ARTICLE XIV TERM AND TERMINATION | 82 | |||||||
| Section 14.1. | Term and Termination of the Company |
82 | ||||||
| Section 14.2. | Distribution of Assets |
82 | ||||||
| Section 14.3. | Certificate of Cancellation |
83 | ||||||
| Section 14.4. | Filing of Certificate of Cancellation |
83 | ||||||
| Section 14.5. | Return of Contribution; Nonrecourse to Other Members |
83 | ||||||
| ARTICLE XV MISCELLANEOUS PROVISIONS | 83 | |||||||
| Section 15.1. | Remedies; Specific Performance |
83 | ||||||
| Section 15.2. | Entire Agreement; Third Party Beneficiaries |
83 | ||||||
| Section 15.3. | Amendment |
84 | ||||||
| Section 15.4. | Severability |
84 | ||||||
| Section 15.5. | Notices |
85 | ||||||
| Section 15.6. | Binding Effect; Assignment |
86 | ||||||
| Section 15.7. | Title to Property |
86 | ||||||
| Section 15.8. | Creditors |
86 | ||||||
| Section 15.9. | Obligations |
86 | ||||||
| Section 15.10. | Reliance on Authority of Persons Signing Agreement |
86 | ||||||
| Section 15.11. | No Waiver |
86 | ||||||
| Section 15.12. | Counterparts |
87 | ||||||
| Section 15.13. | Headings |
87 | ||||||
| Section 15.14. | Governing Law; Jurisdiction |
87 | ||||||
| Section 15.15. | Consents, Approvals and Actions |
87 | ||||||
| Section 15.16. | Waiver of Jury Trial |
87 | ||||||
| Section 15.17. | Subsequent Acquisition of Securities |
88 | ||||||
| Section 15.18. | Aggregation of Units |
88 | ||||||
| Section 15.19. | Use of Logo |
88 | ||||||
| Section 15.20. | Employee Investor Group Representatives |
89 | ||||||
| Section 15.21. | No Third Party Liabilities |
89 | ||||||
iii
| EXHIBITS | ||
| Exhibit A | Consent of Spouse | |
| Exhibit B | Joinder Agreement | |
| Exhibit C | Delegation of Authority | |
| Exhibit D | Business Perspective | |
| Exhibit E | Tax Matters Agreement Terms | |
| Exhibit F | Tax Receivables Agreement Terms | |
| Exhibit G | Post-Spin Investor Rights Agreement Terms | |
| Exhibit H | Form of Management Services Agreement | |
| Exhibit I | Registration Rights Terms | |
| Exhibit J | Post Spin-Off Exit Transactions | |
| Exhibit K | Scheduled TSA Rights | |
| Exhibit L | Cause | |
iv
FIRST AMENDED AND RESTATED
LIMITED LIABILITY COMPANY AGREEMENT OF SILGAN METAL PACKAGING LLC
This FIRST AMENDED AND RESTATED LIMITED LIABILITY COMPANY AGREEMENT (as amended, restated, supplemented or otherwise modified from time to time in accordance with the terms hereof, this “Agreement”) of Silgan Metal Packaging LLC, a Delaware limited liability company, is dated as of [•] (the “Effective Date”) by and among:
(a) the Company;
(b) Silgan Holdings LLC (together with its successors and assigns, the “Initial Silgan Investor”);
(c) solely for the purpose of Section 4.3(f), Section 4.3(g) and Section 7.5(d), Silgan Holdings Inc. (together with its successors and assigns, “Silgan Holdings”);
(d) A-VL Holdco, LP (together with its successors and assigns, the “Initial A-VL Investor”);
(e) solely for the purpose of Section 7.5(j), A-VL Sponsor;
(f) [the Employee Investors (as defined below) who have executed and delivered a signature page to this Agreement or a Joinder Agreement (as defined below); and]
(g) each other Person (as defined herein) who becomes a party hereto from time to time (including pursuant to Section 3.9).
W I T N E S S E T H:
WHEREAS, the Company was formed pursuant to a Certificate of Formation (as defined herein), filed for recordation in the office of the Secretary of State of the State of Delaware on September 30, 2026;
WHEREAS, the Company, Trivium Packaging B.V., a private company with limited liability under the laws of the Netherlands (“Trivium”), the Sellers (as defined in the Put Option Agreement) and the other parties thereto entered into that certain Put Option Agreement (as amended or modified from time to time, the “Put Option Agreement”) dated as of October 17, 2026, pursuant to which, following the completion of the information and consultation processes with the relevant employee representative bodies contemplated thereby and contingent upon the exercise of the put option granted thereunder, the Company, Trivium, the Sellers and the other parties thereto executed that certain Share Purchase Agreement, or it otherwise was deemed to go into effect (upon the execution or deemed effectiveness thereof, and as amended or modified from time to time, the “Trivium Purchase Agreement”), pursuant to which the Company acquired the Shares (as defined therein), on the terms and subject to the conditions set forth in the Trivium Purchase Agreement.
WHEREAS, the Company, Silgan Holdings and the A-VL Investor entered into that certain Transaction Agreement (as amended or modified from time to time, the “Transaction Agreement”), dated as of October 17, 2026, pursuant to which, upon the terms and subject to the conditions set forth therein, Silgan Holdings caused the Initial Silgan Investor to make the contributions, transfers and other actions at the Closing pursuant to Section 2.1 of the Transaction Agreement, in exchange for the issuance to the Initial Silgan Investor of Class A Voting Units of the Company and the distribution of the Silgan Distribution Amount (as defined in the Transaction Agreement) by the Company to the Initial Silgan Investor (as may be adjusted pursuant to the terms of the Transaction Agreement), and the Initial A-VL Investor made the A-VL Holdings Investment Amount (as defined in the Transaction Agreement) at the Closing in exchange for the issuance to the Initial A-VL Investor of Class A Voting Units of the Company.
WHEREAS, pursuant to a Subscription Agreement dated as of the Effective Date (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the “Subscription Agreement”), between the Company and the Initial A-VL Investor, the Initial A-VL Investor shall subscribe in cash for 40% of the Class A Voting Units as of the Effective Date;
WHEREAS, the Initial Silgan Investor entered into a Limited Liability Company Agreement of the Company, dated as of September 30, 2026 (the “Original Agreement”), to make certain provisions for the affairs of the Company and the conduct of its business and the rights and obligations of the member on the terms and conditions set forth therein;
WHEREAS, pursuant to Section 10.1 of the Original Agreement, the Initial Silgan Investor desires to amend and restate the Original Agreement in its entirety as set forth herein.
NOW, THEREFORE, in consideration of the agreements and obligations set forth herein and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto, intending to be legally bound, hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1. Definitions. For the purposes of this Agreement, the following terms shall be defined as follows:
“75% Spin-Off Condition” has the meaning set forth in Section 7.5.
“Action” has the meaning set forth in Section 13.3(b).
“Additional Members” means any Person that has been admitted to the Company as a Member pursuant to Section 3.9 by virtue of having received Units from the Company and not from any other Member or Transferee.
“Adjusted Capital Account Deficit” means, with respect to any Member, the deficit balance, if any, in such Member’s Capital Account as of the end of the relevant Fiscal Year, after giving effect to the following adjustments:
(a) decrease such deficit by any amounts which such Member is obligated to restore pursuant to this Agreement or is deemed to be obligated to restore pursuant to Treasury Regulations Section 1.704-1(b)(2)(ii)(c) or the penultimate sentence of each of Treasury Regulations Sections 1.704-2(i)(5) and 1.704-2(g); and
(b) increase such deficit by the items described in Treasury Regulations Sections 1.704-1(b)(2)(ii)(d)(4), (5) and (6).
The foregoing definition of “Adjusted Capital Account Deficit” is intended to comply with the provisions of Treasury Regulations Section 1.704-1(b)(2)(ii)(d) and shall be interpreted consistently therewith.
2
“Affiliate” means, with respect to any Person, any other Person that controls, is controlled by, or is under common control with such Person. Notwithstanding the foregoing, (i) the Company, its Subsidiaries and other controlled Affiliates and any Management Investment Vehicle shall not be considered Affiliates of any Member or any of such Member’s Affiliates (other than the Company, its Subsidiaries and other controlled Affiliates and any Management Investment Vehicle) (and vice versa), and (ii) other than for purposes of “Covered Persons”, Section 4.3(b)(xi) and Section 11.2, none of the A-VL Investors shall be considered Affiliates of (x) A-VL Sponsor, (y) any “investment fund Affiliate” of A-VL Sponsor or (z) any portfolio company in which A-VL Sponsor or any of its investment fund Affiliates have made a debt or equity investment (and vice versa).
“Agreement” has the meaning set forth in the Preamble.
“A-VL Sponsor” means AIP, LLC.
“A-VL Affiliated Officer” means an officer of the Company or any of its Subsidiaries who is an employee, member or partner of any of the A-VL Investors or any Affiliate of the A-VL Investors.
“A-VL Blocked Feeder” means the direct owner of any A-VL Blocker Shares.
“A-VL Blocker Entity” means, with respect to an A-VL Investor, an entity organized by such Member, or any of its respective Affiliates that is an Affiliate of A-VL Sponsor to directly or indirectly hold Units in the Company and whose general partner, managing member or other governing body is controlled by an Affiliate of A-VL Sponsor.
“A-VL Blocker Shares” means all issued and outstanding capital stock or other equity securities of an A-VL Blocker Entity from time to time.
“A-VL Board Representation Number” means the following number as applicable from time to time:
(a) two (2), if the A-VL Investors beneficially own in the aggregate at least 49.9% of the A-VL Investors’ Initial Stake;
(b) one (1), if the A-VL Investors beneficially own in the aggregate less than 49.9% of the A-VL Investors’ Initial Stake but at least 25.0% of the A-VL Investors’ Initial Stake; or
(c) zero (0) permanently, if the A-VL Investors beneficially own in the aggregate less than 25.0% of the A-VL Investors’ Initial Stake.
“A-VL Designated Director” has the meaning set forth in Section 4.1(c)(i)(B).
“A-VL Investors” means the Initial A-VL Investor that holds Securities and any of its Affiliates, successors or Transferees that hold Securities and are or have been admitted as Members pursuant to Section 3.9.
“A-VL Investors’ Initial Stake” means the number of Unit Equivalents beneficially owned by the A-VL Investors in the aggregate as of immediately following the Effective Date (such number of Unit Equivalents to be equitably adjusted for any stock splits, reverse stock splits, recapitalizations or similar transactions that may occur following the Effective Date).
3
“A-VL Nominee” means any Person nominated or designated by the A-VL Investors (including any alternate or other equivalent designee) for election, appointment or designation as a Director or other member of a governing body of the Company or any Subsidiary.
“Applicable Class A Unit” has the meaning set forth in Section 6.3(b)(i).
“Applicable Distribution” has the meaning set forth in Section 6.3(b)(i).
“Applicable Employee” means (i) with respect to any Employee Investor that is a Service Provider, such Service Provider and (ii) with respect to any Employee Investor that is not a Service Provider, the Service Provider with respect to whom such Employee Investor is (or is permitted to be) a Permitted Transferee.
“Appraiser” means a nationally recognized investment bank or valuation firm appointed in connection with clause (c) of the definition of “FMV per Unit” that has experience in appraising businesses in the same or similar industry as the Company.
“Bad Actor Disqualification Event” means the “bad actor” disqualifications described in Rule 506(d)(1)(i) through (viii) under the Securities Act, as such disqualifications may be amended from time to time.
“Bankruptcy” means, with respect to a Unitholder (or in the case of a Management Investment Vehicle, any holder of Securities of such Management Investment Vehicle), the occurrence of any of the following: (i) the making of a general assignment for the benefit of creditors; (ii) the filing of a voluntary petition in bankruptcy or the filing of a pleading in any court of record admitting in writing an inability to pay debts as they become due; (iii) the entry of an order, judgment or decree by any court of competent jurisdiction adjudicating the Unitholder to be bankrupt or insolvent; (iv) the filing of a voluntary petition or answer seeking any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law or regulation; (v) the filing of an answer or other pleading admitting the material allegations of, or consenting to, or defaulting in answering, an involuntary bankruptcy petition filed against a Unitholder in any bankruptcy proceeding; (vi) the filing of a voluntary application or other pleading or any action otherwise seeking, consenting to or acquiescing in the appointment of a liquidating trustee, receiver or other liquidator of all or any substantial part of a Unitholder’s properties; (vii) the commencement against a Unitholder of any proceeding seeking reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief under any statute, law or regulation which has not been quashed, stayed or dismissed within one hundred eighty (180) days; or (viii) the appointment without consent of such Unitholder or acquiescence in the appointment of a liquidating trustee, receiver or other liquidator of all or any substantial part of a Unitholder’s properties without such appointment being vacated or stayed within one hundred eighty (180) days and, if stayed, without such appointment being vacated within ninety (90) days after the expiration of any such stay.
“beneficial ownership” and “beneficially own” and similar terms have the meaning set forth in Rule 13d-3 under the Exchange Act; provided, however, that (i) no Member shall be deemed to beneficially own any Securities held by any other Member solely by virtue of the provisions of this Agreement (other than this definition), and (ii) with respect to any Securities held by a Member that are exercisable for, convertible into or exchangeable for Units upon delivery of consideration to the Company or any of its Subsidiaries, such Units shall not be deemed to be beneficially owned by such Member unless, until and to the extent such Securities have been exercised, converted or exchanged and such consideration has been delivered by such Member to the Company or such Subsidiary and (iii) with respect to an Employee Investor that owns Securities in a Management Investment Vehicle, such Employee Investor will be deemed to beneficially own its applicable proportion of the amount of Securities of the Company that are held by such Management Investment Vehicle.
4
“Blocker Merger” has the meaning set forth in Section 7.7(b).
“Blocker Reorganization” has the meaning set forth in Section 7.7(b).
“Board of Directors” or “Board” means the Board of Directors of the Company.
“Budget” has the meaning set forth in Section 4.4.
“Business Combination” has the meaning set forth in the definition of “Sale Transaction.”
“Business Day” means any day, other than a Saturday, Sunday or one on which banks are authorized by law to be closed in New York City, New York or Norwalk, Connecticut.
“Business Perspective” has the meaning set forth in Section 4.4.
“Call” has the meaning set forth in Section 10.1.
“Call Closing Date” has the meaning set forth in Section 10.2(b).
“Call Date” has the meaning set forth in Section 10.6(a).
“Call Event” has the meaning specified in Section 10.1.
“Call Notice” has the meaning set forth in Section 10.2(a).
“Call Price” has the meaning set forth in Section 10.6(b).
“Call Right” has the meaning set forth in Section 7.6(e).
“Call Units” has the meaning set forth in Section 10.1.
“Call Unitholder” has the meaning set forth in Section 10.1.
“Capital Account” means, with respect to any Member, the account maintained for such Member in accordance with the provisions of Treasury Regulations Section 1.704-1(b)(2)(iv) and, to the extent consistent with such provisions, the following provisions:
(a) To each Member’s Capital Account there shall be added such Member’s Capital Contributions, such Member’s share of Net Income and any items in the nature of income or gain which are specially allocated hereunder, and the amount of any Company liabilities assumed by such Member or which are secured by any property distributed to such Member.
(b) To each Member’s Capital Account there shall be subtracted the amount of cash and the Gross Asset Value of any property distributed to such Member pursuant to any provision of this Agreement, such Member’s distributive share of Net Losses and any items in the nature of expenses or losses which are specially allocated hereunder, and the amount of any liabilities of such Member assumed by the Company or which are secured by any property contributed by such Member to the Company.
5
(c) In the event any interest in the Company is transferred in accordance with the terms of this Agreement, the transferee shall succeed to the Capital Account of the transferor to the extent it relates to the transferred interest.
(d) In determining the amount of any liability for purposes of subparagraphs (a) and (b) hereof, there shall be taken into account Section 752(c) of the Code and any other applicable provisions of the Code and Treasury Regulations.
(e) The foregoing provisions and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulations Section 1.704-1(b), and shall be interpreted and applied in a manner consistent with such Treasury Regulations.
Notwithstanding anything to the contrary, in determining the Capital Accounts of the Members, the Board of Directors may make such allocations as it deems reasonably necessary in its good faith discretion to give economic effect to the provisions of this Agreement, taking into account such facts and circumstances as it reasonably deems relevant for this purpose.
“Capital Contribution” means the total value of cash and the initial Gross Asset Value of property contributed or deemed to be contributed to the Company by each Member as set forth in the books and records of the Company.
“Cause” has the meaning set forth on Exhibit L.
“Certificate of Cancellation” has the meaning set forth in Section 14.3.
“Certificate of Formation” means the Certificate of Formation of the Company, as originally filed with the Secretary of State of the State of Delaware on September 30, 2026, as may be amended from time to time in accordance with the Delaware Act and this Agreement.
“Class A Member” means the Class A Voting Members and Class A Nonvoting Members.
“Class A Nonvoting Member” means a Member who holds Class A Nonvoting Units, solely in such Member’s capacity as a holder of Class A Nonvoting Units.
“Class A Nonvoting Units” means the nonvoting Class A Units of the Company issued from time to time in accordance with Section 3.4.
“Class A Units” means Class A Voting Units and Class A Nonvoting Units.
“Class A Voting Member” means a Member who holds Class A Voting Units, solely in such Member’s capacity as a holder of Class A Voting Units.
“Class A Voting Units” means the voting Class A Units of the Company issued from time to time in accordance with Section 3.4.
“Class B Member” means a Member who holds Class B Units, solely in such Member’s capacity as a holder of such Class B Units.
6
“Class B Unit Exchange” means, with respect to any Class B Units, an exchange of such Class B Units with the Company for a number of Class A Units that have an aggregate Transaction Value at the time of such exchange equal to the aggregate Transaction Value of such Class B Units being so exchanged.
“Class B Units” means Class B Units of the Company (including any other tranches, series or subclasses of Class B Units of the Company) issued from time to time in accordance with Section 3.4.
“Closing” has the meaning set forth in the Transaction Agreement.
“Code” means the Internal Revenue Code of 1986, as amended from time to time, or any successor statute. Any reference herein to a particular provision of the Code shall mean, where appropriate, the corresponding provision in any successor statute.
“Committee” has the meaning set forth in Section 4.1(e).
“Company” means Silgan Metal Packaging LLC, a Delaware limited liability company formed under and pursuant to the Delaware Act and governed by the Delaware Act, the Certificate of Formation and this Agreement (including any successors or assigns thereof).
“Company Competitor” means (a) any Person that derives more than 20.0% of its consolidated annual revenues from businesses engaging in the Business (as defined in the Restrictive Covenant Agreement), and (b) any controlled Affiliate of any of the foregoing; provided, that neither Silgan Holdings nor any of its direct or indirect Subsidiaries, nor any Person holding solely a passive investment in, or less than 3.0% of the publicly traded securities of, a Person described in clause (a), shall be deemed to be a Company Competitor.
“Company Minimum Gain” has the meaning ascribed to the term “partnership minimum gain” in Treasury Regulations Sections 1.704-2(b)(2) and 1.704-2(d).
“Company Note” has the meaning set forth in Section 10.4.
“Company Representative” has the meaning set forth in Section 5.7.
“Conditional Liquidity Notice” has the meaning set forth in Section 7.6(b).
“Conditional Liquidity Response Notice” has the meaning set forth in Section 7.6(b).
“Conditional Liquidity Right” has the meaning set forth in Section 7.6(b).
“Conditional Liquidity Right Purchase Price” has the meaning set forth in Section 7.6(g).
“Conditional Liquidity Transaction” has the meaning set forth in Section 7.6(b).
“Conditional Liquidity Window” has the meaning set forth in Section 7.6(b).
“Confidential Materials” has the meaning set forth in Section 11.3(d).
“Consent of Spouse” means a consent of spouse substantially in the form of Exhibit A attached hereto or otherwise acceptable to the Board of Directors.
“control” means, with respect to a Person, the power to direct or cause the direction of the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise. The terms “controlled” and “controlling” have meanings correlative to the foregoing.
7
“Controlled Entity” means any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other entity or enterprise controlled by the Company.
“Consulting Agreement” means that certain consulting agreement dated October 17, 2026 between the initial Chairperson and Silgan Holdings (as amended from time to time in compliance with Section 4.3(g)).
“Cost Sharing Agreement” has the meaning set forth in Section 11.6.
“Covered Person” means (a) each Director, each Officer, the Silgan Investors, the A-VL Investors, the Company Representative or any liquidating trustee, in each case in his or her or its capacity as such, (b) any Person of which a Silgan Designated Director or an A-VL Designated Director is an officer, director, shareholder, partner, member, employee, representative or agent, or (c) solely to the extent it relates to any Silgan Investor, any A-VL Investor, any Silgan Designated Director, any A-VL Designated Director, any Silgan Nominee, any A-VL Nominee, any Silgan Affiliated Officer or any A-VL Affiliated Officer, any Affiliate, officer, director, manager, trustee, shareholder, partner, member, beneficiary, employee, representative or agent of any of the foregoing, whether or not such Person continues to have the applicable status referred to by such defined terms.
“Credit Agreement” means [•].
“Delaware Act” means the Delaware Limited Liability Company Act, 6 Del. Code § 18-101 et seq., as the same may be amended from time to time.
“Delegation of Authority” has the meaning set forth in Section 4.1(j).
“Depreciation” means, for each Fiscal Year or other period, an amount equal to the depreciation, amortization or other cost recovery deduction allowable with respect to an asset for such year or other period, except that if the Gross Asset Value of an asset differs from its adjusted basis for U.S. federal income tax purposes at the beginning of such year or other period, Depreciation shall be an amount which bears the same ratio to such beginning Gross Asset Value as the U.S. federal income tax depreciation, amortization or other cost recovery deduction for such year or other period bears to such beginning adjusted tax basis; provided, however, that if the U.S. federal income tax depreciation, amortization or other cost recovery deduction for such year is zero, Depreciation shall be calculated with reference to such beginning Gross Asset Value using any reasonable method selected by the Board of Directors.
“Director” means an individual elected or appointed to the Board of Directors pursuant to the provisions of this Agreement.
“Discretionary Distribution” has the meaning set forth in Section 6.3(b)(ii).
“Distributable Cash” means, as of any date of determination, cash of the Company and its Subsidiaries which is distributable as determined in the reasonable discretion of the Board of Directors and in compliance with the Credit Agreement.
“Drag Along Notice” has the meaning set forth in Section 7.4(a).
“Drag Along Sale” has the meaning set forth in Section 7.4(a).
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“Dragged Unitholders” has the meaning set forth in Section 7.4(a).
“Dragging Party” has the meaning set forth in Section 7.4(a).
“EBITDA” has the meaning set forth in Section 7.6(k)(i).
“Effective Date” has the meaning set forth in the Preamble.
“Election” has the meaning set forth in Section 7.6(b).
“Eligible Preemptive Rights Unitholder” has the meaning set forth in Section 9.3(a).
“Employee Investor” means (i) each Unitholder that is, or was at the time of becoming a party to this Agreement, a Service Provider for so long as he or she holds Securities, (ii) any other individual who (A) holds Securities, (B) is admitted as a Member pursuant to Section 3.9 and (C) is a Service Provider at the time he or she is admitted as a Member, and (iii) any Permitted Transferee of any of the Persons identified in the immediately foregoing clauses (i) and (ii) that beneficially own and hold of record, Securities.
“Employee Investor Group” means an Employee Investor, in each case for so long as he or she holds Securities (which may include Securities of a Management Investment Vehicle), and any of his or her respective Permitted Transferees that hold Securities (which may include Securities of a Management Investment Vehicle) and have been admitted as a Member pursuant to Section 3.9.
“Employee Investor Group Representative” has the meaning set forth in Section 15.20.
“Employee-Related Agreement” means, with respect to any Employee Investor, an agreement (whether in the form of an employment, severance, consulting, award, grant or other similar agreement or offer letter, or otherwise) between the Company or any of its Subsidiaries or Affiliates (including any Management Investment Vehicle), on the one hand, and such Employee Investor (or the Applicable Employee of such Employee Investor), on the other hand, under which the Company or any of its Subsidiaries or Affiliates (including any Management Investment Vehicle) (i) issues Securities, stock appreciation rights or restricted stock units (including performance-based restricted stock units) that correspond to Securities to such Employee Investor (or the Applicable Employee of such Employee Investor) or (ii) specifies the terms of the employment of the Employee Investor (or the Applicable Employee of such Employee Investor).
“Encumbrance” means any charge, claim, community or other marital property interest, right of first option, right of first refusal, right of first offer, transfer restriction, mortgage, pledge, lien or other encumbrance, in each such case, except as resulting from the express terms of this Agreement.
“Entity Taxes” means any taxes (including interest, penalties and additions) with respect to (a) any “imputed underpayment” under Section 6225 of the Code and any applicable regulations or guidance thereunder, and any corresponding state or local amount or (b) any other entity-level tax imposed in connection with a tax audit, examination or similar proceeding.
“Equity Incentive Plan” means, as applicable, the Company Equity Incentive Plan or such other compensatory equity plan adopted by the Board in accordance with this Agreement from time to time after the date thereof (as amended, restated, supplemented or otherwise modified from time to time in accordance with their terms), pursuant to which the Board authorizes the issuance and grant of awards that could result in the issuance of Securities.
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“ERISA” means the U.S. Employee Retirement Income Security Act of 1974, as amended from time to time, and the rules and regulations promulgated pursuant thereto.
“Exchange Act” means the Securities Exchange Act of 1934, as amended from time to time, and the rules and regulations promulgated pursuant thereto.
“Exempted Persons” has the meaning set forth in Section 11.2(a).
“Financing Restriction” has the meaning set forth in Section 10.4.
“Fiscal Year” has the meaning set forth in Section 5.1.
“FMV per Unit” means, as of any date of determination, the price per Unit or other Security determined as follows:
(a) If a Unit or other Security is listed on a national securities exchange, the FMV per Unit shall be the volume-weighted average price of such Unit or other Security for the thirty (30) consecutive trading days, as published by the New York Stock Exchange or any securities exchange that such Unit or other Security is then listed on, immediately prior to such date of determination.
(b) In the absence of such markets for a Unit or other Security, but other than in connection with Section 7.5(k), FMV per Unit shall be the Board’s good faith determination of the fair value of such Unit or other Security as of the applicable reference date, and, in the event that any Silgan Investor or any A-VL Investor are subject to an Involuntary Transfer pursuant to Section 7.1(c), without regard to any discount for the lack of liquidity, marketability or minority interest of such Unit or other Security.
(c) In connection with Section 7.5(k), unless the Investors otherwise agree in writing, FMV per Unit shall be determined in accordance with the following:
(i) Within ten (10) days following the Silgan Investors’ delivery of a Pre-Spin Purchase Notice exercising their right pursuant to clause (i) of Section 7.5(k), the Silgan Investors and the A-VL Investors shall mutually select an Appraiser in good faith. If the Investors are unable to agree on an Appraiser by the end of such ten (10) day period, the Silgan Investors, on the one hand, and the A-VL Investors, on the other hand, shall each select an Appraiser within five (5) days thereafter.
(ii) Within thirty (30) days after the selection of the Appraiser(s), the Appraiser (or each Appraiser, as applicable) shall independently determine the Fair Market Value of the Top-Up Units as of the date of the Pre-Spin Purchase Notice, which determination shall be expressed as a single amount and not as a range. If there is a single Appraiser, the Appraiser’s determination of Fair Market Value of the Top-Up Units shall be the FMV per Unit for purposes of Section 7.5(k). In the event there are two Appraisers, then the average of the Appraisers’ determinations of Fair Market Value of the Top-Up Units shall be the FMV per Unit for purposes of Section 7.5(k).
(d) Notwithstanding the foregoing, the value of a Unit or other Security shall at all times be determined in a manner intended to be consistent with Section 409A of the Code.
(e) For the avoidance of doubt, the price per Unit of the Class A Voting Units and Class A Nonvoting Units shall be equal.
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“Governing Body” has the meaning set forth in Section 4.1(f).
“Gross Asset Value” means, with respect to any asset, the asset’s adjusted basis for U.S. federal income tax purposes, except as follows:
(a) The initial Gross Asset Value of any asset contributed by a Member to the Company shall be the gross fair market value of such asset on the date of contribution, as determined in good faith by the contributing Member and the Board of Directors.
(b) The Gross Asset Values of all Company assets shall be adjusted to equal their respective gross fair market values, as reasonably determined in good faith by the Board of Directors, as of the following times:
(i) the acquisition of Units (other than in connection with the execution of this Agreement) by a new or existing Member in exchange for more than a de minimis Capital Contribution, if the Board of Directors reasonably determines in good faith that such adjustment is necessary or appropriate to reflect the relative economic interests of the Members in the Company;
(ii) the distribution by the Company to a Member of more than a de minimis amount of Company property as consideration for Units, if the Board of Directors reasonably determines in good faith that such adjustment is necessary or appropriate to reflect the relative economic interests of the Members in the Company;
(iii) the liquidation of the Company within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(g) (other than pursuant to a termination of the Company under Section 708(b)(1)(B) of the Code); and
(iv) such other times as the Board of Directors shall reasonably determine in good faith to be necessary or advisable in order to comply with Treasury Regulations Sections 1.704-1(b) and 1.704-2.
(c) The Gross Asset Value of any Company asset distributed to a Member shall be the gross fair market value of such asset on the date of distribution, as reasonably determined in good faith by the Board of Directors.
(d) The Gross Asset Values of Company assets shall be increased (or decreased) to reflect any adjustments to the adjusted basis of such assets pursuant to Section 734(b) of the Code, but only to the extent that such adjustments are taken into account in determining Capital Accounts pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m); provided, however, that Gross Asset Values shall not be adjusted pursuant to this subparagraph (d) to the extent that the Board of Directors reasonably determines in good faith that an adjustment pursuant to subparagraph (b) of this definition of Gross Asset Value is necessary or appropriate in connection with a transaction that would otherwise result in an adjustment pursuant to this subparagraph (d).
(e) If the Gross Asset Value of a Company asset has been determined or adjusted pursuant to subparagraph (a), (b), or (d) of this definition of Gross Asset Value, then the Gross Asset Value as so determined or adjusted shall thereafter be adjusted by the Depreciation taken into account with respect to such asset for purposes of computing Net Income and Net Losses.
“GrowthCo” has the meaning set forth in Section 7.5(d).
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“GrowthCo Spin” has the meaning set forth in Section 7.5(d).
“Hurdle Amount” means, with respect to any Class B Unit or other Unit that is intended to be treated as a profits interest for U.S. federal income tax purposes, an amount determined by the Board of Directors, which shall not be less than the Minimum Hurdle Amount with respect to such Class B Unit or other Unit, and which may be equitably adjusted in the discretion of the Board of Directors in order to give effect to any capital raise or capital injection, unit split, unit dividend or unit distribution, combination, reclassification, recapitalization, merger, consolidation, exchange or the like.
“Implied Equity Value” has the meaning set forth in the definition of “Transaction Value.”
“In-Kind Distribution” means any distribution or similar Transfer of Units by any Unitholder (i) to its partners, members, stockholders or other equityholders or (ii) in connection with an internal restructuring or reorganization of such Unitholder or its Affiliates.
“In-the-Money Value” has the meaning set forth in Section 6.3(b)(i).
“Indemnification Sources” has the meaning set forth in Section 13.3(d).
“Indemnified Liabilities” has the meaning set forth in Section 13.3(b).
“Indemnitee” has the meaning set forth in Section 13.3(a).
“Indemnitee-Related Entities” has the meaning set forth in Section 13.3(d).
“Information Rights Unitholder” means each Investor and any other Unitholder designated in writing by the Silgan Investors and the A-VL Investors as an “Information Rights Unitholder”.
“Initial A-VL Investor” has the meaning set forth in the Preamble.
“Initial Capital Contribution” means the initial contribution to the capital of the Company pursuant to this Agreement, the Transaction Agreement, the Subscription Agreement and/or any other contribution or subscription agreement entered into between the Company and a Member.
“Initial Public Offering” means the consummation of (i) the initial underwritten public offering of Units (or any other Securities) that is registered under the Securities Act, (ii) any merger, amalgamation, business combination or similar transaction between the Company (or any newly formed direct or indirect parent thereof or any direct or indirect subsidiary thereof) and a “blank-check” company or special purpose acquisition company (i.e., a “SPAC”) that results in equity securities of such resulting entity being registered under the Securities Act and listed on the New York Stock Exchange, the Nasdaq Stock Market or any other established securities exchange or automated quotation system or successor to the foregoing, or (iii) the initial voluntary listing of Units (or any other Securities), that are registered under the Securities Act, on the New York Stock Exchange, the Nasdaq Stock Market or any other established securities exchange or successor to the foregoing. For the avoidance of doubt, a Spin-Off shall be deemed to be an Initial Public Offering.
“Initial Silgan Investor” has the meaning set forth in the Preamble.
“Institutional Indemnitees” has the meaning set forth in Section 13.3(b).
“Interests” has the meaning set forth on the Cover Page.
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“Investor” means, any Silgan Investor or any A-VL Investor, as applicable.
“Involuntarily Transferred Securities” has the meaning set forth in Section 7.1(c).
“Involuntary Transfer” means any transfer of Securities owned by a Unitholder that results from (a) a Bankruptcy affecting such Unitholder, (b) the involuntary dissolution of such Unitholder or (c) the divorce of a Unitholder or the death of a Unitholder’s spouse under circumstances in which such Unitholder or its Permitted Transferee does not succeed to the spouse’s interest (if any) in such Securities.
“IP License Agreement” has the meaning set forth in the Transaction Agreement.
“IPO Corporation” means in connection with an Initial Public Offering, (i) in the case of a MetalCo Spin or other Initial Public Offering (other than a GrowthCo Spin), the entity the securities of which are intended to be listed and sold to the public and which entity is the public company issuer of equity securities of the Company (which, for the avoidance of doubt, may be a holding company, intermediate holding company or subsidiary of the Company) or (ii) in the case of a GrowthCo Spin, Silgan Holdings.
“Issuance Notice” has the meaning set forth in Section 9.1(a).
“Joinder Agreement” means a joinder agreement substantially in the form of Exhibit B attached hereto or otherwise acceptable to the Board of Directors.
“Jointly Indemnifiable Claims” has the meaning set forth in Section 13.3(d).
“Management Investment Vehicle” means any one or more (i) investment vehicles created by or at the direction of the Board or (ii) solely as approved by the Silgan Investors and the A-VL Investors, trusts, in the case of each of the foregoing clauses (i) and (ii), for the purpose of facilitating an indirect investment in, or incentive plan for, the Company and its Subsidiaries by Service Providers of the Company or any of its Subsidiaries.
“Management Services Agreements” has the meaning set forth in Section 11.6.
“Member Minimum Gain” means an amount with respect to each “partner nonrecourse debt” (as defined in Treasury Regulations Section 1.704-2(b)(4)) equal to the Company Minimum Gain that would result if such partner nonrecourse debt were treated as a nonrecourse liability (as defined in Treasury Regulations Section 1.752-1(a)(2)) determined in accordance with Treasury Regulations Section 1.704-2(i)(3).
“Member Nonrecourse Debt” has the meaning set forth in Treasury Regulations Section 1.704-2(b)(4).
“Member Nonrecourse Deductions” has the meaning set forth in Treasury Regulations Sections 1.704-2(i)(1) and 1.704-2(i)(2).
“Members” means the parties listed as members in the books and records maintained by the Company, as such books and records may be amended from time to time to include any Person who has been admitted to the Company as a Substitute Member or Additional Member in accordance with this Agreement, each in his, her or its capacity as a member of the Company.
“MetalCo Spin” has the meaning set forth in Section 7.5(c).
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“Minimum Hurdle Amount” means, with respect to each Class B Unit, the fair market value of one (1) Class A Unit on the date of issuance of such Class B Unit, as determined by the Board of Directors; provided, that in no event shall the Minimum Hurdle Amount be less than the highest Unreturned Capital Per Class A Unit in respect of any of the Class A Units that are issued and outstanding on the date of issuance of such Class B Unit, unless the Board of Directors may otherwise determine in good faith.
“MIV Securities Exchange” has the meaning set forth in Section 4.5(a)(i).
“Necessary Action” means, with respect to a specified result, all actions (to the extent such actions are permitted by applicable law) necessary to cause such specified result, including (a) voting or providing a written consent or proxy with respect to a Unitholder’s Units (any other voting Securities, if any) whether at any annual or special meeting, by written consent or otherwise, (b) causing the adoption of stockholders’ resolutions and amendments to this Agreement, certificate of incorporation, bylaws or equivalent governing document, (c) causing members of the Board (to the extent such members were nominated or designated by the Person obligated to undertake the Necessary Action, and subject to any fiduciary duties that such members may have as directors) to act in a certain manner or causing them to be removed in the event they do not act in such a manner, (d) executing agreements and instruments necessary to achieve such specified result, and (e) making, or causing to be made, with governmental, administrative or regulatory authorities, all filings, registrations or similar actions that are required to achieve such specified result.
“Net Debt” has the meaning set forth in Section 7.6(k)(ii).
“Net Income” or “Net Loss” means for each fiscal year of the Company, an amount equal to the Company’s taxable income or loss for such fiscal year, determined in accordance with Section 703(a) of the Code (for this purpose, all items of income, gain, loss or deduction required to be stated separately pursuant to Section 703(a)(1) of the Code shall be included in taxable income or loss), with the following adjustments:
(a) any income of the Company that is exempt from U.S. federal income tax and not otherwise taken into account in computing Net Income or Net Loss pursuant to this definition of Net Income or Net Loss shall be added to such taxable income or loss;
(b) any expenditures of the Company described in Section 705(a)(2)(B) of the Code or treated as Section 705(a)(2)(B) of the Code expenditures pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Net Income or Net Loss pursuant to this definition of Net Income or Net Loss shall be subtracted from such taxable income or loss;
(c) in the event the Gross Asset Value of any Company asset is adjusted pursuant to subparagraph (b) or (c) of the definition of Gross Asset Value, the amount of such adjustment shall be taken into account as gain or loss from the disposition of such asset for purposes of computing Net Income or Net Loss;
(d) gain or loss resulting from any disposition of property with respect to which gain or loss is recognized for U.S. federal income tax purposes (or would be recognized but for the fact that the amount realized in connection with such disposition equals the adjusted tax basis of such property) shall be computed by reference to the Gross Asset Value of the property disposed of, notwithstanding that the adjusted tax basis of such property differs from its Gross Asset Value;
(e) in lieu of the depreciation, amortization and other cost recovery deductions taken into account in computing such taxable income or loss, Depreciation shall be taken into account for such fiscal year;
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(f) to the extent an adjustment to the adjusted tax basis of any Company asset pursuant to Section 734(b) of the Code is required pursuant to Treasury Regulations Section 1.704-1(b)(2)(iv)(m)(4) to be taken into account in determining Capital Accounts as a result of a distribution other than in liquidation of a Member’s interest in the Company, the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases the basis of the asset) from the disposition of the asset and shall be taken into account for purposes of computing Net Income or Net Loss; and
(g) notwithstanding any other provision of this definition of Net Income or Net Loss, any items which are specially allocated hereunder shall not be taken into account in computing Net Income or Net Loss but shall be computed in a manner consistent with paragraphs (a) through (f) of this definition.
“Non-Institutional Unitholders” means each of the Unitholders other than the Silgan Investors and the A-VL Investors.
“Non-Silgan Unitholders” means each of the Unitholders other than the Silgan Investors.
“Nonrecourse Deductions” has the meaning set forth in Treasury Regulations Sections 1.704-2(b)(1) and 1.704-2(c).
“Officers” has the meaning set forth in Section 4.2.
“Original Agreement” has the meaning set forth in the Recitals.
“Participation Closing” has the meaning set forth in Section 9.1(b)(ii).
“Participation Notice” has the meaning set forth in Section 9.1(b)(i).
“Participation Portion” has the meaning set forth in Section 9.3(b).
“Participation Securities” has the meaning set forth in Section 9.3(c).
“Participation Unitholder” has the meaning set forth in Section 9.1(b).
“Pension Plan” means [•].1
“Permitted Transferee” means:
(a) with respect to an Employee Investor, (i) a transferee pursuant to applicable laws of descent and distribution, (ii) in the case of an individual, a transferee who is (x) such individual’s spouse or lineal descendant (whether natural or adopted) or (y) any trust established solely for the benefit of such individual and/or such individual’s spouse and/or lineal descendants (provided, that such individual serves as the sole trustee of such trust), (iii) in the case of a trust, a transferee who is the beneficiary of such trust (provided, that such beneficiaries are limited to the spouse and lineal descendants (whether natural or adopted) of such Unitholder), in each case of the foregoing clauses (ii)(y) and (iii), (x) so long as such Unitholder retains the power to vote and dispose of the applicable Unitholder’s Securities and if such power is not retained or is lost, such transferee shall no longer be a Permitted Transferee, and (y) any Transfer to such transferee is for bona fide inheritance or estate planning purposes, or (iv) such other Transferee approved by the Board;
| 1 | To include list of applicable pension plans as of the Closing. |
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(b) with respect to the Silgan Investors, (i) any other Silgan Investor, and (ii) any Affiliate of the Silgan Investors; and
(c) with respect to the A-VL Investors, (i) any other A-VL Investor, and (ii) any Affiliate of the A-VL Investors (but excluding any operating company or other portfolio company of any A-VL Investor or investment fund Affiliate of A-VL Sponsor);
(d) with respect to any Management Investment Vehicle, a Transfer to the Company, upon the redemption or repurchase of any Security of such Management Investment Vehicle;
(e) with respect to any other Unitholder, such Persons as the Silgan Investors and the A-VL Investors shall determine at or following the time such Unitholder became a Unitholder.
“Person” means an individual, any general partnership, limited partnership, limited liability company, corporation, trust, business trust, joint stock company, joint venture, unincorporated association, cooperative or association or any other legal entity or organization of whatever nature, and shall include any successor (by merger or otherwise) of such entity.
“Post-Closing Issuance” has the meaning set forth in Section 9.3(d).
“Pre-IPO Period” has the meaning set forth in Section 4.1(c)(i).
“Pre-Spin-Off Investor Restrictions” has the meaning set forth in Section 7.5(j)(ii).
“Pre-Spin Purchase” has the meaning set forth in Section 7.5(k).
“Pre-Spin Purchase Notice” has the meaning set forth in Section 7.5(k).
“Priority Payment Amount” means the sum of (a) $46,000,000.00 plus (b) the Remaining Share of SCF Offset Amount (as defined in the Transaction Agreement).
“Priority Payment Amount Distribution” has the meaning set forth in Section 4.3(a)(i)(A).
“Public GrowthCo” means, after the consummation of a Spin-Off, the public company holding, directly and/or indirectly, the business of GrowthCo.
“Public MetalCo” means, after the consummation of a Spin-Off, the IPO Corporation holding, directly and/or indirectly, the business of the Company and its Subsidiaries.
“Put Option Agreement” has the meaning set forth in the Recitals.
“Redirected Proceeds” has the meaning set forth in Section 6.3(b)(i).
“Registration Rights Agreement” has the meaning set forth in Article VIII.
“Regulatory Allocations” has the meaning set forth in Section 6.2(c)(i).
“Repurchased Securities” has the meaning set forth in Section 7.1(c).
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“Restricted Person” means (i) each Affiliate, officer, director, manager, and employee of a Company Competitor (provided, that this clause (i) shall not apply following an Initial Public Offering or with respect to any such persons where such Company Competitor is the purchaser or transferee in a Sale Transaction) or (ii) an individual who (a) is under investigation or the subject of an inquiry by a governmental entity relating to, has been convicted of (including as a result of the entry of a guilty plea, a consent judgment or a plea of nolo contendere), or has been charged civilly with, in each case, a violation of any anti-corruption law or in the case of any criminal offense involving dishonesty or breach of trust such that the penalty could be imprisonment for more than one (1) year, (B) is subject to (or has been subject to) sanctions by a self-regulatory organization, or (C) has been found by a court of competent jurisdiction to have violated any federal securities or state securities law and the judgement in such Action has not been reversed, suspended or vacated.
“Restricted Securities” means all Securities other than (i) Securities, the offer and sale of which have been registered under a registration statement pursuant to the Securities Act and sold thereunder, (ii) Securities, with respect to which a sale or other disposition has been made in reliance on and in accordance with Rule 144 (or any successor provision) under the Securities Act, or (iii) Securities, with respect to which the holder thereof shall have delivered to the Company either (a) an opinion of counsel in form and substance reasonably satisfactory to the Company, delivered by counsel reasonably satisfactory to the Company, or (b) a “no action” letter from the SEC, in either case to the effect that subsequent transfers of such Securities may be effected without registration under the Securities Act.
“Restrictive Covenant Agreement” means that certain Restrictive Covenant Agreement, dated as of the date hereof, by and among Silgan Holdings, the Initial Silgan Investor, the Initial A-VL Investor, A-VL Sponsor and the Company (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms).
“Sale Transaction” means:
(a) a transaction or series of related transactions in which a Person or a group (as defined pursuant to Section 13(d) of the Exchange Act) of Persons (in each case, excluding (x) the Silgan Investors, the A-VL Investors or any Person that is an Affiliate of the Silgan Investors or the A-VL Investors immediately prior to the entry into such transaction or series of related transactions and (y) any group (as defined pursuant to Section 13(d) of the Exchange Act) of Persons which includes any of the Persons in the immediately preceding clause (x), but, in the case of this clause (y), only so long as such Persons in the immediately preceding clause (x) own a majority of the voting securities held by all members of such group), acquires Voting Securities representing more than fifty percent (50%) of the outstanding voting power of the outstanding Voting Securities (excluding from this clause any Business Combination);
(b) any direct or indirect acquisition of the Company by means of merger, consolidation, exchange or contribution of equity, or other form of entity reorganization of the Company or its Subsidiaries in one or a series of related transactions with or into another entity (in each case, excluding any entity that is an Affiliate of the Silgan Investors or the A-VL Investors immediately prior to the entry into such merger, consolidation, exchange or contribution of equity, or other form of entity reorganization) (a “Business Combination”), in which outstanding Securities are exchanged for cash, securities or other consideration, unless, immediately following such merger, consolidation, exchange or contribution of equity, or other form of entity reorganization in one or a series of related transactions, the Unitholders prior to such merger, consolidation, exchange or contribution of equity, or other form of entity reorganization in one or a series of related transactions own directly or indirectly securities or other equity interests representing at least fifty percent (50%) of the voting power of the surviving entity or its direct or indirect parent holding entity; or
(c) a direct or indirect sale, transfer or other disposition (other than a pledge or grant of a security interest to one or more bona fide lenders) of all or substantially all of the consolidated assets of the Company and its Subsidiaries other than to (x) the Silgan Investors, A-VL Investors or any Person that is an Affiliate of the Silgan Investors or the A-VL Investors immediately prior to such sale, transfer or other disposition or (y) a Subsidiary of the Company.
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For the avoidance of doubt, a Sale Transaction shall not include any transaction set forth in the foregoing clauses (a) or (b) to the extent the Securities being acquired or exchanged, as applicable, are Securities of Silgan Holdings.
Notwithstanding the foregoing, none of a Spin-Off (or any transaction effected in connection therewith, including any UP-C Reorganization or Blocker Reorganization) or any Transfer to a Permitted Transferee pursuant to and in compliance with Section 7.2 shall constitute a Sale Transaction.
“Scheduled TSA Rights” has the meaning set forth in Section 4.7.
“SEC” means the U.S. Securities and Exchange Commission or any successor agency.
“Securities” means any equity securities (or any securities convertible into or exercisable or exchangeable for equity securities) of the Company, any newly formed direct or indirect parent thereof or any direct or indirect Subsidiary or investment holding vehicle (including any Management Investment Vehicle) with respect to any of the foregoing, including any Units, any Unit Equivalents or any other Voting Securities or other equity securities; provided, that “Securities” shall not include (i) any publicly traded securities of Silgan Holdings or any successor thereto or of any other direct or indirect parent entity of a Unitholder whose equity securities are listed on a national securities exchange (other than an entity whose assets, directly or indirectly, consist primarily of Units or other Securities) or (ii) from and after the consummation of an Initial Public Offering (including a Spin-Off), any securities of the IPO Corporation (or Public MetalCo) distributed to the shareholders of Silgan Holdings in connection with a Spin-Off.
“Securities Act” means the Securities Act of 1933, as amended from time to time, and the rules and regulations promulgated pursuant thereto.
“Sensitive Transaction” means a transaction or series of transactions (or any agreement, understanding, arrangement, or substantial negotiations, within the meaning of Section 355(e) of the Code and Treasury Regulations Section 1.355-7, or any other Treasury Regulations promulgated thereunder, to enter into a transaction or series of transactions), as a result of which Public MetalCo would merge or consolidate with any Person or as a result of which any Person or Persons would (directly or indirectly) acquire, or have the right to acquire, from Public MetalCo or one or more holders of outstanding shares of Public MetalCo stock, any number of shares of Public MetalCo stock. For purposes of determining whether a transaction constitutes an indirect acquisition, any recapitalization resulting in a shift of voting power or any redemption of shares of stock shall be treated as an indirect acquisition of shares of stock by the non-exchanging shareholders. For purposes of this definition, each reference to Public MetalCo shall include a reference to any entity treated as a predecessor or successor thereto. This definition and the application thereof are intended to monitor compliance with Section 355(e) of the Code and shall be interpreted accordingly. Any clarification of, or change in, the statute, Treasury Regulations promulgated under Section 355(e) of the Code, or official Internal Revenue Service guidance with respect thereto shall be incorporated in this definition and its interpretation.
“Service Provider” means any officer, employee, director, consultant and/or other individual service provider of the Company or its Subsidiaries.
“Silgan Affiliated Officer” means an officer of the Company or any of its Subsidiaries who is an employee, officer, director, member or partner of any of the Silgan Investors or any Affiliate of the Silgan Investors.
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“Silgan Board Representation Number” means the following number as applicable from time to time:
(a) three (3), if the Silgan Investors beneficially own in the aggregate at least 75.0% of the Silgan Investors’ Initial Stake;
(b) two (2), if the Silgan Investors beneficially own in the aggregate less than 75.0% of the Silgan Investors’ Initial Stake but at least 33.0% of the Silgan Investors’ Initial Stake; or
(c) one (1), if the Silgan Investors beneficially own in the aggregate less than 33.0% of the Silgan Investors’ Initial Stake but at least 16.6% of the Silgan Investors’ Initial Stake; or
(d) zero (0) permanently, if the Silgan Investors beneficially own in the aggregate less than 16.6% of the Silgan Investors’ Initial Stake.
“Silgan Call Notice” has the meaning set forth in Section 7.6(e).
“Silgan Designated Director” has the meaning set forth in Section 4.1(c)(i)(A).
“Silgan Holdings” has the meaning set forth in the Preamble.
“Silgan Holdings Change of Control” has the meaning set forth in Section 7.6(h).
“Silgan Investors” means the Initial Silgan Investor that holds Securities and any of its Affiliates or successors that hold Securities and are or have been admitted as Members pursuant to Section 3.9.
“Silgan Investors’ Initial Stake” means the number of Unit Equivalents beneficially owned by the Silgan Investors in the aggregate as of immediately following the Effective Date (such number of Unit Equivalents to be equitably adjusted for any stock splits, reverse stock splits, recapitalizations or similar transactions that may occur following the Effective Date).
“Silgan Nominee” means any Person nominated or designated by the Silgan Investors (including any alternate or other equivalent designee) for election, appointment or designation as a Director or other member of a governing body of the Company or any Subsidiary.
“Silgan Spin-Off Notice” has the meaning set forth in Section 7.5(a).
“Silgan Stock Consideration Option” has the meaning set forth in Section 7.6(j).
“Specified Transaction Documents” means the Transaction Agreement and the IP License Agreement.
“Special Distribution” means (a) the distribution to the Initial Silgan Investor of the Silgan Distribution Amount (as defined in the Transaction Agreement) and the other amounts payable pursuant to Section 2.1(g) of the Transaction Agreement and (b) any payment by the Company to the Initial Silgan Investor or its Affiliates pursuant to Section 2.5(d) of the Transaction Agreement, in each case as finally determined pursuant to the Transaction Agreement.
“Spin-Off” has the meaning set forth in Section 7.5.
“Spin-Off Announcement” has the meaning set forth in Section 7.6(c).
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“Spin-Off Implied Equity Value” has the meaning set forth in Section 7.6(g).
“Spin-Off Period” has the meaning set forth in Section 7.6(c).
“Spin-Off Request” has the meaning set forth in Section 7.6(a).
“Subscription Agreement” has the meaning set forth in the Recitals.
“Subsequent Applicable Distribution” has the meaning set forth in Section 6.3(b)(iii).
“Subsequently Vested Units” has the meaning set forth in Section 6.3(b)(iii).
“Subsidiary” means, with respect to any Person, any entity of which (i) a majority of the total voting power of shares of stock or equivalent ownership interests entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers, trustees or other members of the applicable governing body thereof is at the time owned or controlled, directly or indirectly, by that Person or one or more of the other Subsidiaries of that Person or a combination thereof, or (ii) if no such governing body exists at such entity, a majority of the total voting power of shares of stock or equivalent ownership interests of the entity is at the time owned or controlled, directly or indirectly, by that Person or one or more Subsidiaries of that Person or a combination thereof. For purposes hereof, a Person or Persons shall be deemed to have a majority ownership interest in a limited liability company, partnership, association or other business entity if such Person or Persons shall be allocated a majority of limited liability company, partnership, association or other business entity gains or losses or shall be or control the managing member or general partner of such limited liability company, partnership, association or other business entity.
“Subsidiary Board” has the meaning set forth in Section 4.1(d).
“Substitute Member” means any Person that has been admitted to the Company as a Member pursuant to Section 3.9 by virtue of such Person’s receiving Units from a Member or its Transferee and not from the Company.
“Tax Distributions” has the meaning set forth in Section 6.3(c).
“Top-Up Units” has the meaning set forth in Section 7.5(k).
“Transaction Agreement” has the meaning set forth in the Recitals.
“Transaction Documents” means the Put Option Agreement, the Trivium Purchase Agreement, the Limited Guarantees (as defined in the Trivium Purchase Agreement), the Equity Commitment Letter (as defined in the Trivium Purchase Agreement), the Transaction Agreement, the Limited Guarantee (as defined in the Transaction Agreement), the Transition Services Agreement, the Restrictive Covenant Agreement, the Cost Sharing Agreement and the Confidentiality Agreement, dated January 20, 2026, between Silgan Holdings and A-VL Sponsor.
“Transaction Value” means, with respect to any class or series of Units, the amount per Unit which the holders of such class or series of Units would receive if 100% of the outstanding Units were sold in a hypothetical sale for a cash purchase price equal to the Implied Equity Value and the net proceeds were distributed to the holders of Units in accordance with Section 6.3 hereof and assuming that all Unvested Units were Vested Units. The “Implied Equity Value” equals the aggregate purchase price for 100% of the outstanding Units that, when allocated in accordance with Section 6.3 hereof, would result in the receipt by the Silgan Investors of an amount per Unit being sold by such Silgan Investors that equals the price per Unit being paid by the purchaser of such Units in such Drag Along Sale.
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“Transfer” has the meaning set forth in Section 7.1(a).
“Transfer Terms and Conditions” means, with respect to any Drag Along Sale:
(a) Terms of a Drag Along Sale. Subject to clause (b), (c) and (d) below:
(i) The form, election rights and amount of consideration and the payment terms and conditions for each Unit Equivalent Transferred by a Dragged Unitholder (in a Drag Along Sale) (as applicable, a “Transferring Unitholder”) shall be the same as the form, election rights and amount of consideration and the payment terms and conditions for each Unit Equivalent of the same type and class Transferred by the Silgan Investors; provided, that the A-VL Investors shall have the right to receive one hundred percent (100%) of the consideration for their Unit Equivalents that are being Transferred in the form of cash, immediately tradeable marketable securities or a combination thereof (with the allocation as between cash and such securities determined by the Dragging Party consistent, to the extent such forms of consideration are to be paid to the Silgan Investors in such Drag Along Sale to the Silgan Investors, with the allocation of each such forms of consideration payable to the Silgan Investors in such Drag Along Sale). Any other terms and conditions of such proposed Transfer by a Transferring Unitholder shall be on the same terms and conditions as the Silgan Investors.
(ii) Each Transferring Unitholder shall make the same representations, warranties and be subject to the same obligations, including covenants and indemnities (the “Drag Along Sale Terms”) as the Silgan Investors in a Drag Along Sale; provided, that (A) no Transferring Unitholder shall bear liability for any Drag Along Sale Terms other than those made by such Transferring Unitholder or the Company, (B) all Drag Along Sale Terms shall be made by each Transferring Unitholder severally and not jointly, (C) the aggregate amount of liability (other than in the case of fraud) of each Transferring Unitholder shall not exceed the gross proceeds paid to such Transferring Unitholder, and (D) no Transferring Unitholder shall bear liability for Drag Along Sale Terms made by the Company in a manner that is disproportionate to the respective proceeds received by all Transferring Unitholders.
(b) A-VL Investors’ Rights. The A-VL Investors shall have the following protections in connection with a Drag Along Sale:
(i) The A-VL Investors shall only be liable for their pro rata portion (based on amount of any consideration received) of any purchase price adjustment, escrow, and indemnification obligations arising in connection with such Drag Along Sale;
(ii) The A-VL Investors’ aggregate liability in connection with such Drag Along Sale shall not exceed the aggregate proceeds received by the A-VL Investors in such Drag Along Sale;
(iii) The A-VL Investors shall be liable solely on a several (and not joint or joint and several) basis for any representations, warranties, covenants, and indemnities made by the A-VL Investors or the Company in connection with such Drag Along Sale;
(iv) The A-VL Investors shall not be required to be bound by any non-compete, non-disparagement, non-solicitation or no hire covenant in connection with such Drag Along Sale;
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(v) The A-VL Investors shall not be required to make any representations, warranties, or indemnities with respect to any other Investor or such Investor’s equity interests;
(vi) If the Silgan Investor is given the option to receive different forms of consideration to allow the Silgan Investor to roll over any of its equity, the A-VL Investor shall have the opportunity to participate in such rollover on a pro rata basis for the same form(s) of consideration as the Silgan Investor; provided, that, the A-VL Investors shall have the right to receive cash and/or immediately tradeable marketable securities in connection therewith; or
(vii) Any equity holder representative appointed in connection with such Drag Along Sale shall not be entitled to make any decision that would adversely and disproportionately affect the A-VL Investors as compared to the Silgan Investors.
(c) Treatment of Class B Units. With respect to any Class B Units held by a Transferring Unitholder, to the extent that such Units are Vested Units and are to be sold in a Drag Along Sale, such Transferring Unitholder may be required by the Dragging Party to complete a Class B Unit Exchange (which Class B Unit Exchange may be conditioned upon the closing of the Drag Along Sale) and Transfer Class A Units (rather than such Class B Units) in such Drag Along Sale.
(d) [Reserved.]
(e) Securities as Consideration. In the event the consideration to be paid in a Drag Along Sale includes any securities, and (A) the receipt thereof by a Transferring Unitholder (other than any A-VL Investor) could require under applicable law (1) the registration or qualification of such securities or of any Person as a broker or dealer or agent with respect to such securities where such registration or qualification is not otherwise required for the Transfer by the Silgan Investors or (2) the provision to any Transferring Unitholder (other than any A-VL Investor) of any information regarding the Company or any of its Subsidiaries, such securities or the issuer thereof (other than such information specifically required to be provided in or with the applicable notice of such transaction), or (B) the Silgan Investors have not been able to ascertain to their satisfaction (in their sole discretion) that any one or more of the Transferring Unitholders (other than any A-VL Investor) is an “accredited investor” as defined in Regulation D of the Securities Act, then the Silgan Investors shall have the right, but not the obligation, to cause any such Transferring Unitholder (other than any A-VL Investor) to be paid, in lieu of such securities, an amount in cash equal to the fair market value of such securities (as determined in good faith by the Silgan Investors) as of the date such securities otherwise would have been paid to such Transferring Unitholder.
(f) Further Assurances. Subject to the other terms of this Agreement including the Transfer Terms and Conditions, each Transferring Unitholder shall take or cause to be taken all such reasonable actions as the Silgan Investors deem to be reasonably necessary in order to consummate expeditiously a Drag Along Sale, in each case, to the same extent as the Silgan Investors.
(g) Expenses. All reasonable and documented out-of-pocket costs and expenses (for the avoidance of doubt, other than taxes) incurred by the Silgan Investors and the A-VL Investors and their respective Affiliates in connection with a Drag Along Sale shall be promptly reimbursed or paid by the Company upon request. Each Non-Institutional Unitholder shall bear its own costs and expenses in connection with a Drag Along Sale except as otherwise determined by the Silgan Investors and the A-VL Investors.
“Transferee” means any Person to which a Member or another Transferee has transferred Units in compliance with Section 3.9.
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“Transferring Unitholder” has the meaning set forth in the definition of “Transfer Terms and Conditions.”
“Transition Services Agreement” has the meaning set forth in the Transaction Agreement.
“Treasury Regulations” means all proposed, temporary and final regulations promulgated under the Code, as such regulations may be amended from time to time.
“Trivium” has the meaning set forth in the Recitals.
“Trivium Purchase Agreement” has the meaning set forth in the Recitals.
“Unit Equivalents” means (i) Units (other than Unvested Units) and (ii) the number of Units issuable upon exercise, conversion or exchange of any security that is currently exercisable for, convertible into or exchangeable for, as of any such date of determination, Units without payment to the Company of any additional consideration.
“Unitholder” means each of the Persons specified in the Preamble that hold Securities and each additional Person who becomes a party to this Agreement pursuant to Section 3.9 hereof as a Member and holder of Securities.
“Units” means all issued and outstanding Class A Units, Class B Units and any other type, class or series of ownership interests of the Company issued from time to time in accordance with Section 3.4; provided, that any type, class or series of Units shall have the designations, preferences and/or special rights set forth in this Agreement, and the ownership interests of the Company represented by such type, class or series of Units shall be determined in accordance with such designations, preferences and/or special rights. With respect to any particular class or series of Units, such class or series shall be deemed to include (without duplication for purposes of Section 15.15), to the extent applicable, any common stock of the IPO Corporation issued in respect of such class or series of Units, or any other equity securities received in respect of such class or series of Units or common stock in connection with any combination of equity interests, recapitalization, merger, consolidation, or other reorganization, or by way of interest split, interest dividend or other distribution.
“Unpaid Amount” has the meaning set forth in Section 6.3(b)(iii).
“Unreturned Capital Per Class A Unit” means, as of any date of determination, with respect to any Class A Unit that is issued and outstanding as of such date of determination, an amount equal to the excess of (x) aggregate amount paid by the applicable Class A Member to the Company or its Subsidiaries to acquire such Class A Unit, over (y) the aggregate amount received by the holder of such Class A Unit with respect to such Class A Unit in all distributions pursuant to Section 6.3, from and after the date of such issuance of such Class A Unit and prior to such date of determination.
“Unvested Unit” means any Unit that has not vested as of the date of determination pursuant to the terms of the applicable Employee-Related Agreement pursuant to which such Unit was granted.
“Unwind Transfer” has the meaning set forth in Section 7.2(a).
“UP-C Reorganization” has the meaning set forth in Section 7.5(b).
“Vested Unit” means any Unit that has vested as of the date of determination pursuant to the terms of the applicable Employee-Related Agreement pursuant to which such Unit was granted.
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“Voting Security” means Class A Voting Units (including any other equity security received in connection with any combination of shares, recapitalization, merger, consolidation, or other reorganization, or by way of stock split, stock dividend or other distribution, in each case in respect of Class A Voting Units) and any other Securities that are permitted by their terms to vote together with the Class A Voting Units.
Section 1.2. General Interpretive Principles. The name assigned to this Agreement and the section captions used herein are for convenience of reference only and shall not be construed to affect the meaning, construction or effect hereof. Words used in this Agreement, regardless of the gender and number used, will be deemed and construed to include any other gender, masculine, feminine or neuter, and any other number, singular or plural, as the context requires. Unless otherwise specified, the words “this Agreement,” “hereto,” “herein,” “hereunder,” “hereof” and words or phrases of similar import refer to this Agreement as a whole, together with any and all schedules and exhibits hereto, and not to any particular article, section, subsection, paragraph, clause or other portion of this Agreement. For purposes of this Agreement, the words “include,” “includes” and “including,” when used herein, shall be deemed in each case to be followed by the words “without limitation.” The terms “dollars” and “$” shall mean United States dollars. The use of “Affiliates” and “Subsidiaries” shall be deemed to be followed by the words “as such entities exist as of the relevant date of determination.” Any reference to “days” shall mean calendar days unless such reference is to a “Business Day”. Except as otherwise set forth herein, securities exercisable, exchangeable or convertible into any other securities shall not be deemed as “outstanding” securities of the type into which they are exercisable, exchangeable or convertible for any purposes in this Agreement until actually exercised or converted. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties and no presumption or burden of proof will arise favoring or disfavoring any party because of the authorship of any provision of this Agreement.
ARTICLE II
FORMATION; PURPOSE
Section 2.1. Formation of Company.
(a) The parties hereto continue a limited liability company formed on September 30, 2026 pursuant to the Delaware Act.
(b) This Agreement is subject to, and governed by, the Delaware Act and the Certificate of Formation. In the event of a direct conflict between the provisions of this Agreement and the mandatory provisions of the Delaware Act or the provisions of the Certificate of Formation, such provisions of the Delaware Act or the Certificate of Formation, as the case may be, will be controlling to the extent required thereby. To the extent any provision of this Agreement is prohibited or ineffective under the Delaware Act, this Agreement shall be considered amended only to the extent necessary in order to make this Agreement effective under the Delaware Act. In the event the Delaware Act is subsequently amended or interpreted in such a way to make any provision of this Agreement that was formerly invalid thereafter valid, such provision shall be considered to be valid from the effective date of such interpretation or amendment.
Section 2.2. Name. The name of the Company shall be “Silgan Metal Packaging LLC”. The Board is authorized to make any variations in the Company’s name which the Board may deem necessary or advisable; provided, that (a) such name shall contain the words “Limited Liability Company” or the letters “LLC” or “L.L.C.” and (b) such name shall not contain the name of any Member without the consent of such Member.
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Section 2.3. Organizational Certificates and Other Filings. The Board shall cause to be executed and delivered all certificates and other documents consistent with the terms of this Agreement necessary to accomplish all filing, recording, publishing and other acts as may be appropriate to comply with all requirements for (a) the formation and operation of a limited liability company under the laws of the State of Delaware, (b) if the Board deems it advisable, the operation of the Company as a limited liability company, or company in which the Members have limited liability, in all jurisdictions where the Company proposes to operate and (c) all other filings required to be made by the Company.
Section 2.4. Purpose and Powers. The Company is formed for the purpose of (x) acquiring, owning, selling, transferring and managing equity interests in any Person and (y) engaging in any lawful business, purpose or activity permitted under the Delaware Act. Subject to the other provisions of this Agreement, the Company shall have the power and authority to take any and all actions necessary, desirable or incidental to, or for the furtherance of, the purpose set forth in this Section 2.4, directly or indirectly, through other Persons, alone or with others, including the power and authority:
(a) to acquire, invest in, own, hold, finance, operate, manage, improve, develop, maintain, promote or otherwise exploit investments, directly or through other Persons;
(b) to exercise all rights, powers, privileges and other incidents of ownership or possession with respect to investments and other property;
(c) to sell, transfer, exchange and otherwise dispose of investments, securities or other property;
(d) to open, maintain and close brokerage, mutual fund or similar accounts;
(e) to open, maintain and close bank accounts and to draw checks and other orders for the payment of money;
(f) to engage and terminate attorneys, accountants, consultants, advisors, underwriters, or such other Persons as may be necessary or advisable to counsel and advise as to the conduct of the business and affairs of the Company;
(g) to appoint and dismiss employees and agents of the Company and to define their duties and fix their compensation;
(h) to borrow money, to issue evidences of indebtedness to evidence such borrowings, to guarantee loans, and to secure such borrowings and guaranties by pledge of any or all assets of the Company;
(i) to enter into, modify, perform and carry out contracts and agreements of any kind, in each case, necessary, desirable or incidental to, or for the furtherance of, the purposes of the Company, and to authorize any Person to execute such contracts and agreements;
(j) to pay, collect, compromise, litigate, arbitrate or otherwise adjust or settle any and all other claims or demands of or against the Company or to hold reserves against the payment of contingent liabilities;
(k) to indemnify any Person and to obtain any and all types of insurance;
(l) to cease its activities and cancel its Certificate of Formation; and
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(m) to engage in any and all other acts and things necessary, desirable or incidental to, or for the furtherance of, any of the Company’s objectives, purposes or powers.
Section 2.5. Mergers. Subject to the terms of this Agreement, the Company may, with approval of the Silgan Investors (and, unless in connection with a Spin-Off or a Drag Along Sale that is effected in accordance with the terms of this Agreement, the A-VL Investors), and without the need for any further act, vote or approval of any Member, merge with, or consolidate into, another limited liability company (organized under the laws of Delaware or any other state) or other business entity (as defined in Section 18-209(a) of the Delaware Act), regardless of whether the Company is the survivor of such merger or consolidation.
Section 2.6. Principal Place of Business; Other Places of Business. The principal place of business of the Company will be located at 601 Merritt Seven, Norwalk, Connecticut 06851, and/or such other place or places within or outside the State of Delaware as the Board may from time to time designate. The Company may maintain offices and places of business at such other place or places within or outside the State of Delaware as the Board deems advisable.
Section 2.7. Registered Office and Registered Agent. The registered office of the Company in the State of Delaware shall be located at The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware, 19801. The name and address of the registered agent of the Company shall be The Corporation Trust Company, Corporation Trust Center, 1209 Orange Street, Wilmington, New Castle County, Delaware, 19801. The Board may from time to time change the registered agent or office by an amendment to the Certificate of Formation.
ARTICLE III
MEMBERS; UNITS
Section 3.1. Names, Addresses and Capital Contributions of Members. The names and addresses of the Members, the Initial Capital Contributions and other Capital Contributions of the Members and Units held by the Members (including specifying whether such Units are Class A Voting Units, Class A Nonvoting Units, Class B Units or any other type of Unit) shall be set forth in the books and records maintained by the Company. Such books and records shall be revised from time to time by the Board promptly following the issuance, repurchase or transfer of Units to reflect such issuance, repurchase or transfer. The Board shall reflect adjustments, if any, in the Members’ respective Capital Contributions in the books and records of the Company.
Section 3.2. Form of Contributions. Contributions shall be in such amounts and may be in cash or any type of property, including promissory notes, as may be determined by the Board of Directors. No Member shall be required to make any Capital Contributions to the Company other than such Member’s Initial Capital Contribution.
Section 3.3. Member Loans. No Member shall be required to lend any funds to the Company. A loan by any Member to the Company shall not be considered an additional contribution to the capital of the Company unless (a) otherwise determined by the Board of Directors and (b) the Member making such loan has consented in writing to such determination in advance. No loans or advances may be made by any Member to the Company unless otherwise approved by the Board of Directors.
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Section 3.4. Issuance and Creation of Units; Voting.
(a) Subject to the terms of this Agreement, the Company is authorized to issue equity interests in the Company designated as “Units,” which shall constitute limited liability company interests under the Delaware Act and shall initially consist of (i) Class A Units, which comprise Class A Voting Units and Class A Nonvoting Units, and (ii) Class B Units. Subject to the terms of this Agreement, (i) the Board of Directors is authorized to create and issue, from time to time, new classes or series of Units that may have rights, preferences, privileges, limitations or obligations that are junior to, pari passu with, or senior to any other class or series of Units, and without the need for any further act, vote or approval of any Member; (ii) the total number of Units of any class that may be issued hereunder shall not be limited and (iii) Units may be issued from time to time to any Person (including any existing Member) in such amounts and on such terms as the Board of Directors may determine, and without the need for any further act, vote or approval of any Member.
(b) Solely with respect to any matter submitted to a vote of the Class A Voting Members, each Class A Voting Member shall have the right to one vote for each Class A Voting Unit held by such Class A Voting Member as to such matter. The Class A Nonvoting Units and the Class B Units shall be non-voting Units and the Class A Nonvoting Members and the Class B Members shall not have any rights to vote on any matters other than as expressly provided otherwise in this Agreement.
(c) Special meetings of the Class A Voting Members under this Agreement may be requested by any Director by delivering written notice thereof to the Company. A notice of the place, date and time and the purpose or purposes of each such special meeting of the Class A Voting Members shall thereafter be given by the Company to each Class A Voting Member by mailing or emailing, or transmitting via other electronic means, such notice not less than ten (10) nor more than sixty (60) days before such special meeting. Notice of any adjourned special meeting need not be given, other than by announcement at such special meeting at which the adjournment is taken.
(d) To the extent action is required to be taken by the holders of any class of Units under this Agreement, such action may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding Units of such class having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all holders of such class of Units entitled to vote thereon were present and voting. Prompt notice of the taking of any such action shall be given to those holders of such class of Units who did not consent in writing.
Section 3.5. Certificates for Units. Except as otherwise determined by the Board of Directors, Units shall be uncertificated and recorded in the books and records of the Company. Any certificated Units shall contain such legends as the Company shall reasonably determine are necessary or advisable.
Section 3.6. Capital Contributions. No Member shall have the right to withdraw the Member’s Capital Contribution or to demand and receive property of the Company or any distribution in return for the Member’s Capital Contribution, except as may be specifically provided in this Agreement or required by law (excluding any law which grants such a right in the absence of a negating provision in this Agreement). No Member shall receive out of the Company property any part of the Member’s Capital Contribution until all liabilities of the Company, except liabilities to Members on account of their Capital Contributions, have been paid or there remains property of the Company sufficient to pay them, unless the return of the Capital Contribution may be rightfully demanded as provided in the Delaware Act. No interest shall be paid on any Capital Contribution. No Member shall be required to make any Capital Contributions without such Member’s prior written consent.
Section 3.7. Limitation on Liability. To the fullest extent permitted by law, the debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and no Covered Person shall be obligated personally for the repayment, satisfaction or discharge of any such debt, obligation or liability of the Company solely by reason of being a Covered Person.
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Section 3.8. Waiver of Partition and Accounting. To the maximum extent permitted by law, each Member hereby irrevocably waives any and all rights that it may have to maintain an action for an accounting or for partition of the Company’s property.
Section 3.9. Admission of Additional Members and Substitute Members.
(a) Subject to the terms of this Agreement, the Company, without the consent of the Members, may admit as an Additional Member any Person who acquires Units issued by the Company in compliance with this Agreement.
(b) Subject to the terms of this Agreement, the Company, without the consent of the Members, shall admit as a Substitute Member any Person who acquires Units from a Member in compliance with this Agreement.
(c) The admission of any Person as a Substitute Member or Additional Member shall be conditioned upon such Person’s written acceptance and adoption of all the terms and provisions of this Agreement by (i) execution and delivery of a Joinder Agreement and (ii) provision of any such further documents as may be necessary, in the good faith judgment of the Company, to make such Person a Substitute Member or Additional Member in compliance with the terms and conditions of this Agreement. In addition to the foregoing, if any Person seeking to be admitted as a Substitute Member or Additional Member is an individual resident in a community property state, or will be an Employee Investor and the Applicable Employee with respect to such Employee Investor is a resident in a community property state, then, the admission of such Person as a Substitute Member or Additional Member shall be conditioned upon receipt by the Company of a Consent of Spouse duly authorized, executed and delivered by such Applicable Employee’s spouse, if any.
ARTICLE IV
GOVERNANCE
Section 4.1. Management of the Company; Board of Directors.
(a) Management of the Company. Except as expressly provided in this Agreement, the business and affairs of the Company shall be managed and governed by the Board in accordance with the terms of this Agreement, no Members shall have the management authority or rights over the Company, and the Board shall possess all rights and have the power to do any and all acts necessary or convenient to or for the furtherance of the purposes described herein and additionally as provided in the Delaware Act and/or applicable law. Except as otherwise expressly provided for herein, the Members hereby consent to the exercise by the Board of all such powers and rights conferred on them pursuant to the immediately preceding sentence and by the Delaware Act with respect to the management and governance of the Company. No Member, in such capacity as a Member, shall have any power to act for, sign for or do any act that would bind the Company, unless expressly permitted by this Agreement or otherwise authorized by the Board. The Board shall have all the rights and powers that may be possessed by a manager under the Delaware Act and each Director shall constitute a “manager” of the Company, as defined in the Delaware Act. To the fullest extent permitted by the Delaware Act and the laws of the State of Delaware, except as otherwise provided herein, no Units or other Securities in the Company shall have any voting, approval or consent rights with respect to any matter, including the approval of any Sale Transaction.
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(b) Board Size. The initial Board shall consist of five Directors. Subject to Section 4.3(b), the Silgan Investors shall have the right to increase or decrease the then current size of the Board by providing the Company written notice.
(c) Board Representation Prior to Initial Public Offering.
(i) From the date of this Agreement until the consummation of an Initial Public Offering (the “Pre-IPO Period”), the Board shall consist solely of the following Persons (subject to the other provisions of this Section 4.1):
(A) the number of designees of the Silgan Investors equal to the Silgan Board Representation Number (the “Silgan Designated Directors”); and
(B) the number of designees of the A-VL Investors equal to the A-VL Board Representation Number (the “A-VL Designated Directors”).
(ii) For so long as the Silgan Investors are entitled to designate the Silgan Designated Directors under this Agreement, the Silgan Investors shall have the sole right to remove the Silgan Designated Directors, subject, in the case of any Silgan Designated Director then serving as the Chairperson, to Section 4.1(f) and Section 4.3(b)(vi) (and any such removal shall be deemed a removal of such Person from the position of the Chairperson for purposes thereof). For so long as the A-VL Investors are entitled to designate the A-VL Designated Directors under this Agreement, the A-VL Investors shall have the sole right to remove the A-VL Designated Directors. Notwithstanding the foregoing, (A) in no event shall any Director be a Restricted Person, (B) each Investor agrees to not knowingly appoint a Restricted Person as a Director, and (C) the applicable Investor shall take all necessary action to remove any Director if such Director is or becomes a Restricted Person.
(iii) For so long as the Silgan Investors are entitled to designate at least one (1) Director under this Agreement, the Silgan Investors shall have the right in their reasonable discretion to designate up to two (2) (or, if the A-VL Investors consent in writing with respect to any particular meeting, more than two (2)) non-voting observers for meetings of the Board. For so long as the A-VL Investors are entitled to designate at least one (1) Director under this Agreement, the A-VL Investors shall have the right in their reasonable discretion to designate up to two (2) (or, if the Silgan Investors consent in writing with respect to any particular meeting, more than two (2)) non-voting observers for meetings of the Board, provided, that (a) each such observer shall be required to execute and deliver to the Company a confidentiality agreement, in a form acceptable to the Board, with respect to all information obtained in its capacity as an observer and (b) information may be withheld from any observer, and the observer may be excluded from any meeting or portion thereof, if (as determined in good faith by the Board) access to such information or materials or attendance at such meeting (i) would or would likely result in the waiver of the attorney client or work product privilege between the Company or any of its Subsidiaries and its or their respective counsel, (ii) would or would be reasonably likely to contravene any bona fide confidentiality obligations to which the Company or any of its Affiliates is bound or (iii) would or would be reasonably likely to result in any bona fide conflict of interest involving such observer.
(iv) The Board and each of the Members will take all Necessary Action to effect the composition of, or any change of the members of, the Board as contemplated by this Agreement. In the event that the Silgan Board Representation Number is reduced pursuant to the terms of this Agreement, unless the A-VL Investors otherwise agree in writing, the Silgan Investors shall cause the applicable directors to resign promptly from the Board. In the event that the A-VL Board Representation Number is reduced pursuant to the terms of this Agreement, unless the Silgan Investors otherwise agree in writing, the A-VL Investors shall cause the applicable directors to resign promptly from the Board.
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(v) For the avoidance of doubt, the Director designation right(s) of the Silgan Investors and the A-VL Investors shall be transferable via an assignment by the transferring Investor of its Director designation right(s) in connection with the Transfer of Units, with the entitlement of the transferee (and in the event of a partial sale, the entitlement of each of the transferor and the transferee) determined by its holdings as a percentage of the initial Units held at Closing of the original appointing Investor; provided, that the aggregate appointment rights of an Investor and its transferees shall not exceed such Investor’s original entitlement (i.e., if the A-VL Investors transfer 50% of their initial Units and retains the other 50% of its initial Units, the A-VL Investors and the transferee will be entitled to appoint no more than two Directors in the aggregate, assuming that together the A-VL Investors and the transferee own at least 49.9% of the A-VL Investors’ initial Units). By way of further example, if the A-VL Investors sell 50% of their initial Units to a transferee and retain the remaining 50% of its initial Units, the A-VL Investors may, in connection with such sale, assign to the transferee one or both of their Director designation rights; in such case: (A) if the A-VL Investors assign one designation right, the A-VL Investors will retain the right to appoint one Director and the transferee will initially be entitled to appoint one Director; (B) if the A-VL Investors assign both designation rights, the A-VL Investors will retain no designation rights and the transferee will initially be entitled to appoint both Directors; and (C) if the A-VL Investors do not assign any designation rights, the A-VL Investors will retain the right to appoint two Directors and the transferee will have no designation rights.
(d) Subsidiary Boards. During the Pre-IPO Period, the Company shall take all Necessary Action, and shall cause the Subsidiaries of the Company to take all Necessary Action, to cause the board of directors (or equivalent governing body) of any Subsidiary of the Company to include such directors designated by the Board; provided, that if any such governing body includes any Silgan Designated Directors (such governing body, a “Subsidiary Board”), the A-VL Investors may elect in writing that the A-VL Designated Directors shall also be included on such Subsidiary Board in the same approximate proportion as representation on a Committee is determined in accordance with Section 4.1(e).
(e) Committees. The Board may establish such committees (each, a “Committee”) as the Board shall approve, with such authority as the Board shall so determine from time to time. During the Pre-IPO Period, for so long as an Investor is entitled to designate at least one (1) Director under this Agreement, such Investor shall also have the right to designate one or more of its designated Directors to be included on all Committees. Any such designation shall be approximately proportionate to an Investor’s director designation rights on the Board; provided, that, such designation need not be proportionate if the Board reasonably determines that applicable law (including the requirements of the SEC and any securities exchange upon which securities of the IPO Corporation are listed) requires otherwise or if there is a conflict of interest involving the applicable designated Directors; provided, further, if there is one (1) or more Silgan Designated Directors on any committee of the Board, there shall be at least one (1) A-VL Designated Director on such committee (for so long as the A-VL Investors have the right to designate at least one (1) Director under this Agreement) (e.g., if, based on the Board composition at the Effective Date, there is a committee of the Board comprised of three (3) members, if the A-VL Investors have one (1) individual appointed to such committee and the Silgan Investors have two (2) individuals appointed to such committee, that shall be considered approximately proportionate representation), and vice versa.
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(f) Chairperson. Subject to Section 4.3, the Chairperson of the Board, each Subsidiary Board and each Committee (the “Governing Body”) shall be appointed by the Silgan Investors for so long as the Silgan Investors have the right to designate at least one (1) Director under this Agreement. The Silgan Investors may remove any Person from the position of the Chairperson; provided, that prior to the three (3) year anniversary of the Effective Date, the Silgan Investors may not remove any Person from the position of the Chairperson without the consent of the A-VL Investors except for Cause, as determined by either the board of directors of Silgan Holdings (with twenty-four (24) hour prior notice of such determination delivered to either of the A-VL Designated Directors) or the Board. Unless otherwise determined in writing by the relevant Governing Body, the person serving as Chairperson shall not be deemed to be an officer of the Company or any of its Subsidiaries solely by virtue of his or her role as Chairperson. The Chairperson shall preside at all meetings of the Governing Body at which he or she is present.
(g) Quorum; Manner of Acting.
(i) In order to establish a quorum of any meeting of a Governing Body, there shall be present (x) a majority of the aggregate voting power of all members of such Governing Body, (y) at least one Silgan Designated Director (to the extent a Silgan Designated Director is a member of such Governing Body) and (z) an A-VL Designated Director (to the extent an A-VL Designated Director is a member of such Governing Body). In the event a quorum is not constituted due solely to the failure to satisfy either clause (y) and/or clause (z) above, such meeting may be adjourned and subsequently reconvened upon notice to each director of the applicable Governing Body by mail or email, or transmitted via other electronic means, at least 24 hours before such reconvened meeting, or by delivering the same personally at least 24 hours before such reconvened meeting, setting forth in reasonable detail the specific matters to be conducted at such meeting (which shall be the same as for the original meeting), and (subject to Section 4.1(g)(ii)) the presence of at least one Silgan Designated Director, one A-VL Designated Director or both (as applicable) shall not be necessary to establish a quorum for such subsequently reconvened meeting. If any Director designated by an Investor is not present at a meeting of the Board (or there is a vacancy), then any other Director designated by such Investor may exercise the voting power of all absent or vacant Directors that such Investor is entitled to designate. If a Director designated by an Investor is unable to attend any meeting of the Board, such Investor may, by advance written notice (email sufficing) to the rest of the Directors, designate an alternative individual (an “Alternate Designee”) to attend such meeting and act as such Investor’s designee for only such meeting; and following such meeting, the Alternate Designee shall cease to have any rights or authority with respect to the Board; provided, that no Alternate Designee shall be a Restricted Person.
(ii) All actions of a Governing Body taken at a meeting shall require the affirmative vote of a majority of the aggregate voting power of all members of such Governing Body. At any meeting of a Governing Body or with respect to any written consent in lieu of such meeting, each director shall be entitled to cast one (1) vote.
(h) Meetings; Action Without a Meeting.
(i) Place of Meetings. Meetings of any Governing Body may be held at any place within or without the State of Delaware, as may from time to time be fixed by resolution of the Chairperson of such Governing Body or by such Governing Body, or as may be specified in the notice of meeting.
(ii) Participation by Conference Call. Any or all members of a Governing Body may participate in a meeting of such Governing Body by means of a conference telephone, video or other communications equipment allowing all Persons participating in the meeting to hear each other at the same time. Participation by such means shall constitute presence in person at the meeting.
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(iii) Regular Meetings. Regular meetings of a Governing Body may be held at such times and places as the Chairperson of such Governing Body or such Governing Body reasonably determines, upon written notice to all of the directors of such Governing Body, such notice including the place, date and time and the purpose or purposes of each regular meeting of such Governing Body and delivered by mail or email, or transmitted via other electronic means, at least two (2) Business Days before such regular meeting, or by delivering the same personally at least two (2) Business Days before such regular meeting. Notice of any regular meeting of such Governing Body need not be given to any director of such Governing Body, however, if waived by him or her orally or in writing whether before or after such meeting is held, or if he or she shall be present at such meeting, and any meeting of such Governing Body shall be a legal meeting without any notice thereof having been given, if all the directors of such Governing Body then in office are present; except when one or more director(s) of such Governing Body attends a meeting solely for the express purpose of objecting, and in fact such director objects, at the beginning of the meeting, to the transaction of any business because the meeting is not called or convened in accordance with this Agreement.
(iv) Special Meetings. Special meetings of a Governing Body may be called by the Chairperson of such Governing Body or by the directors having a majority of the total voting power of such Governing Body. A notice of the place, date and time and the purpose or purposes of each special meeting of such Governing Body shall be given to each director of such Governing Body by mail or email, or transmitted via other electronic means, at least 48 hours before such special meeting, or by delivering the same personally at least 24 hours before such special meeting. Notice of any special meeting of such Governing Body need not be given to any director of such Governing Body, however, if waived by him or her in writing whether before or after such meeting is held, or if he or she shall be present at such meeting, and any such meeting of such Governing Body shall be a legal meeting without any notice thereof having been given, if all the directors of such Governing Body then in office are present, except, in any such case, when one or more director(s) of such Governing Body attends a meeting solely for the express purpose of objecting, and in fact such director objects, at the beginning of the meeting, to the transaction of any business because the meeting is not called or convened in accordance with this Agreement.
(v) Action Without a Meeting. Any action required or permitted to be taken by a Governing Body may be taken without a meeting if all members then serving on such Governing Body have consented in writing or by electronic transmission (including via email) to the adoption of a resolution authorizing the action. The resolutions, written consents or electronic transmissions of the members of such Governing Body shall be filed with the minutes of the proceedings of such Governing Body. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form. The Company shall provide copies of any written consent or resolution adopted pursuant to this Section 4.1(h)(v) to the Silgan Investors and the A-VL Investors promptly, and in any event within five (5) Business Days, following the adoption thereof.
(i) Company Organizational Documents. The Company and each Member shall take all Necessary Action to cause the organizational documents of the Company and each Subsidiary on which a Silgan Designated Director or an A-VL Designated Director may serve on such Subsidiary Board not to be inconsistent with the terms of this Agreement.
(j) Delegation of Authority. The Company adopts the delegation of authority attached as Exhibit C (the “Delegation of Authority”). Subject to Section 4.3, the Board may from time to time approve and adopt amendments to the Delegation of Authority and update Exhibit C in connection therewith.
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(k) Expense Reimbursement. Subject to Section 4.3, directors and observers shall be reimbursed by the Company for all actual, reasonable and documented out-of-pocket costs and expenses incurred by them in connection with their service on any Governing Body (including travel (which in the case of air travel shall be limited to travel by commercial airlines; provided, that if a director or observer of the Board elects to travel by private aircraft for a particular trip, the amount reimbursed shall not exceed the amount of a first-class flight for an equivalent trip)), lodging and meal expenses. In the case of a director or observer who is also an employee of the Company or any Subsidiary, the foregoing expense reimbursement shall not include any costs and expenses incurred by such director or observer with respect to entering into an employment, equity, award, grant or other arrangements with the Company or any Subsidiary, except as otherwise agreed to in writing between the Company (and approved in advance by the Board) and any such director.
Section 4.2. Officers. The Company may have such officers (the “Officers”) as the Board of Directors in its discretion may appoint. Subject to the terms of this Agreement and the terms of any written agreement between the Company and any such Officer, (i) the Board of Directors may remove any Officer with or without cause at any time and (ii) any such Officers may, subject to the general direction and control of the Board of Directors, have responsibility for the management of the normal and customary day-to-day operations of the Company to the extent so delegated by the Board of Directors, subject to the terms of this Agreement, and will be empowered to engage in all appropriate and necessary activities to accomplish the purposes of the Company as set forth herein. The Board of Directors hereby delegates to each of the Officers the nonexclusive power and authority to act as an agent of the Company and, in such capacity, to bind the Company in the ordinary course of the Company’s business and to execute any and all documents to be signed by the Company, in each such case, subject to the limitations on the authority of the Officers as (i) set forth herein, (ii) set forth in the Delegation of Authority or any similar document approved in writing by the Board of Directors (subject to Section 4.3) and/or (iii) set forth in the Delaware Act. The Officers and other key employees of the Company will be compensated in accordance with their respective employment agreements or arrangements (and, to the extent applicable, related agreements with respect to Units), if any, with the Company or any of its Subsidiaries, or otherwise as determined by the Board of Directors and the Board of Directors shall have the authority to negotiate and authorize amendments to any such agreements.
Section 4.3. Matters Requiring Approval of Certain Unitholders.
(a) Fundamental Approval Matters. Notwithstanding anything in this Agreement to the contrary, (1) the Company and its successors shall not, and shall cause Public MetalCo and the Company’s Subsidiaries not to, and (2) to the extent the Silgan Investors control the Company, the Silgan Investors and their successors shall cause the Company not to, in each case, take (or authorize or commit to take) any of the following actions (whether by merger, consolidation, amalgamation, stock purchase, asset purchase, reorganization, share exchange, business combination or otherwise; provided, that the foregoing reference to mergers and other corporate actions shall not restrict the taking of any action otherwise restricted pursuant to this Section 4.3 which is necessary (x) except with respect to Section 4.3(a)(iii), to effect a Drag Along Sale in accordance with Section 7.4 or (y) to implement a Spin-Off in accordance with Section 7.5), without the prior written consent of each of the Silgan Investors (but only if (x) an Initial Public Offering or a Sale Transaction (in each case as a result of which the Silgan Investors cease to own any Units) has not been consummated, (y) the Silgan Designated Directors do not comprise a majority of the directors of the Board and (z), the Silgan Investors beneficially own any Units) and the A-VL Investors (but only for so long as the A-VL Investors beneficially own any Units):
(i) redeem, repurchase, convert or reduce the number of any Securities of the Company or authorize, declare, make or pay any dividends or distributions or return of capital of any kind with respect to any Securities of the Company, in each case other than:
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(A) redemptions or repurchases in which each Investor that holds such type or class of Securities is provided the same opportunity to participate in such redemption or repurchase as any other Members on a pro rata basis in proportion to the number of such type and class of Securities held by each other Investor; provided, that any distributions to the A-VL Investors of the Redirected Proceeds in connection with the Priority Payment Amount pursuant to Section 6.3(b)(i) (each, a “Priority Payment Amount Distribution”) shall be deemed to be a pro rata distribution permitted pursuant to this Section 4.3(a)(i)(A);
(B) dividends or distributions made on a pro rata basis to all holders of the same classes and/or series of Securities (if subject to vesting, to the extent vested) in proportion to the number of such classes and/or series of Securities (if subject to vesting, to the extent vested) held by such Unitholder;
(C) redemptions or repurchases of Securities pursuant to Article X or pursuant to any Employee-Related Agreement;
(D) any dividends or distributions made in accordance with Section 4.6; or
(E) the Special Distribution.
(ii) entry into, waiver of any material rights under, material amendment or modification to, or the voluntary early termination of any agreement, contract or transaction entered into between the Company and/or any of its Subsidiaries, on the one hand, and any Investor or any of its Affiliates (other than, following the consummation of the GrowthCo Spin, the Silgan Investors), on the other hand, except for:
(A) any action mutually agreed upon by the Silgan Investors and the A-VL Investors in writing or as otherwise expressly provided for in this Agreement (including as may be necessary to consummate a Spin-Off) or the Transaction Documents;
(B) transactions (x) on terms no less favorable to the Company and its Subsidiaries than would be obtainable at such time in a comparable arm’s-length transaction with an unaffiliated third party, as evidenced by one or more of the following: (A) a fairness opinion or valuation opinion from a nationally recognized investment bank or independent financial advisor, (B) an independent written bid, quote, or proposal received from a competent unaffiliated third party prepared to enter into a comparable transaction or (C) reference to publicly available nationally or internationally recognized rate indices applicable to the relevant type of transaction, such as “CDI” for resin or “LME” for aluminum, and (y) following disclosure of material terms of such affiliate transaction to all of the directors of the Board, approved by the Board;
(C) any issuance of Securities, debt or debt securities as long as the provisions set forth in Article IX are complied with;
(D) any issuance of Securities in accordance with Section 7.5(k); or
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(E) exculpation, indemnification, reimbursement, payment and/or advancement of expenses pursuant to this Agreement, any Management Services Agreement or any customary director indemnification agreement, in each case, in which the Silgan Investors or the A-VL Investors, as applicable, receive the same treatment or any of the certificate of incorporation, bylaws, limited liability company agreement, partnership agreement, equityholders agreement or other governance documents of the Company or any of its Subsidiaries.
(iii) amend, restate, alter, waive or modify this Agreement or any other governing, constituent or organizational documents of the Company (in each case except as permitted under Section 15.3) or, in a manner adversely affecting such Investor or adversely affecting any expressly enumerated rights of such Investor, amend, restate, alter, waive or modify the governing, constituent or organizational documents of any of the Company’s Subsidiaries (in each case except as would be permitted under Section 15.3 if it applied with respect to the Company’s Subsidiaries), in each case, whether by merger, consolidation, amalgamation, stock purchase, asset purchase, reorganization, share exchange, business combination or otherwise;
(iv) (a) effect any voluntary liquidation, winding-up or dissolution of the Company or (b) filing or consenting to the filing of any voluntary bankruptcy or insolvency, or the voluntary application of a receiver, with respect to any material Subsidiary of the Company;
(v) (a) make, change or revoke any entity classification tax election with respect to the Company or any U.S. domestic Subsidiary, or (b) take any other material action with respect to the Company or any of its Subsidiaries with respect to taxes that, in the case of the foregoing clause (b), would reasonably be expected to have a disproportionate adverse effect on any Investor relative to another Investor; and/or
(vi) (a) waive, amend, modify or provide any approval or consent of the Company or any of its Subsidiaries with respect to any post-closing covenant or obligation of the Company or any of its Subsidiaries under the Trivium Purchase Agreement, the Transaction Agreement or the IP License Agreement (excluding, for the avoidance of doubt, the Transition Services Agreement), or (b) consent to, authorize or effect any splitting, separation, assignment or novation of any shared contract (as such term or analogous concept is defined or addressed in the Trivium Purchase Agreement and/or the Transaction Agreement) other than in accordance with the respective proportions of such contract that are attributable to the business of the Company and its Subsidiaries, on the one hand, and the business retained by the Silgan Investors and their Affiliates (other than the Company and its Subsidiaries), on the other hand.
(b) Other Approval Matters. Notwithstanding anything in this Agreement to the contrary, prior to the consummation of a Spin-Off or a Sale Transaction, the Company and its Subsidiaries shall not take (or authorize or commit to take) any of the following actions (whether by merger, consolidation, amalgamation, stock purchase, asset purchase, reorganization, share exchange, business combination or otherwise; provided, that the foregoing reference to mergers and other corporate actions shall not restrict the taking of any action otherwise restricted pursuant to this Section 4.3 which is necessary (x) except with respect to Section 4.3(a)(iii), to effect a Drag Along Sale in accordance with Section 7.4 or (y) to implement a Spin-Off in accordance with Section 7.5) without the prior written consent of each of the Silgan Investors (but only if (x) an Initial Public Offering or a Sale Transaction (in each case as a result of which the Silgan Investors cease to own any Units) has not been consummated, (y) the Silgan Designated Directors do not comprise a majority of the directors of the Board and (z) the Silgan Investors beneficially own at least 16.6% of the Silgan Investors’ Initial Stake) and the A-VL Investors (but only if the A-VL Investors beneficially own in the aggregate at least 25.0% of the A-VL Investors’ Initial Stake):
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(i) (A) increase or decrease the size of (x) the Board or (y) any Committee or Subsidiary Board on which the Silgan Investors and the A-VL Investors have a designee (provided, that this Section 4.3(b)(i) shall not restrict any automatic reduction in the number of Directors that an Investor is entitled to designate pursuant to the A-VL Board Representation Number or the Silgan Board Representation Number, as applicable, resulting from a reduction in an Investor’s beneficial ownership of Units below the applicable thresholds as set forth in the definition of such terms), or (B) create, enter into, or amend any delegation of authority to management or modify any powers, duties or responsibilities of management, in each case except as may be necessary to consummate a Spin-Off;
(ii) until the ten (10) year anniversary of the Effective Date, enter into, consummate or otherwise take any affirmative actions to effect (x) a Sale Transaction (for the avoidance of doubt, excluding a Silgan Holdings Change of Control) or (y) an Initial Public Offering (except, in the case of this clause (y), a Spin-Off); provided, that, any Initial Public Offering following the ten (10) year anniversary of the Effective Date shall be in the form of an “umbrella-partnership C corporation” and, in connection therewith, the Company will undertake an “UP-C Reorganization”;
(iii) acquisitions or dispositions or exclusive licensing arrangements (or entry into agreements contemplating such arrangements or transactions) (whether by merger, consolidation, amalgamation, stock purchase, asset purchase, reorganization, share exchange, business combination or other transaction that has the foregoing effect) in a single transaction or a series of related transactions of any assets, company or business (including equity interests), with an aggregate transaction value greater than or equal to $300,000,000, in each case excluding any Drag Along Sale in accordance with Section 7.4 or any Spin-Off in accordance with Section 7.5;
(iv) enter into any agreement to establish, consummate, voluntarily early terminate or materially modify the terms of any joint venture, strategic alliance, minority investment or similar arrangement with an aggregate value of assets to be provided thereunder by the Company in excess of $75,000,000;
(v) (a) create, issue, incur, assume (including by way of merger, consolidation, amalgamation, stock purchase, asset purchase, reorganization, share exchange, business combination or otherwise), amend or refinance any indebtedness (including capital leases) in a manner that increases the aggregate outstanding principal amount of loans or similar indebtedness or guarantee or endorse the obligations of any unaffiliated third party, which would result in a consolidated leverage ratio (as calculated under the Credit Agreement, after giving pro forma effect to any reserves reasonably set by the Board from time to time for average net working capital of the Company and its Subsidiaries based on a trailing twelve-month average) of the Company and its Subsidiaries in excess of 4.5x EBITDA, or (b) make any loan or capital contribution to any unaffiliated third party, in an amount in excess of $50,000,000 (excluding, for the avoidance of doubt, ordinary course trade receivables);
(vi) until the three (3) year anniversary of the Effective Date, remove any Person from the position of the Chairperson other than for Cause (as determined by either the board of directors of Silgan Holdings (with twenty-four (24) hour prior notice of such determination delivered to either of the A-VL Designated Directors) or the Board) in accordance with Section 4.1(f) or appoint any Person to a position of the Chairperson (provided, that such Investor’s consent to any such appointment shall not be unreasonably withheld, conditioned or delayed); provided, further, that, notwithstanding anything to the contrary in this Agreement, any right of the Silgan Investors to remove, replace or substitute any of the Silgan Designated Directors shall, with respect to any Person then serving as the Chairperson whom the Silgan Investors desire to remove, replace or substitute, be subject in all respects to, and shall not limit, override or otherwise derogate from or circumvent, any rights of the A-VL Investors pursuant to this Section 4.3(b)(vi);
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(vii) subject to Section 4.3(d), hire or appoint the Company’s Chief Executive Officer (or the Company’s primary executive Officer, however denominated) (provided, that (a) such Investor’s consent to any such change shall not be unreasonably withheld, conditioned or delayed and (b) subject to Section 4.3(d), removal of any Person from such position with or without “cause” (as defined in the Employee-Related Agreement of such Officer, if applicable) shall require only Board approval, and shall not require the consent of any Investor). For the avoidance of doubt this Section 4.3(b)(vii) shall not apply to the initial Chairperson who is also serving as an interim CEO;
(viii) create, authorize the creation of, or issue any new series or class of equity interests by the Company or any of its Subsidiaries, provided, that any such Subsidiary may create and issue any new series or class of equity interests to the Company or any of its wholly owned Subsidiaries;
(ix) effect any material changes in, or the termination of, any material line of business as conducted as of the Effective Date or enter into or develop any new material line of business;
(x) initiate, enter into or agree to any settlement or compromise of litigation (a) that is reasonably expected to result in a payment by the Company and/or any of its Subsidiaries in excess of $25,000,000 net of insurance recoveries, (b) that is reasonably likely to impose injunctive relief or any material equitable remedy on the Company and/or any of its Subsidiaries, (c) that provides for an admission of guilt or criminal fault by the Company or its Subsidiaries or (d) that is reasonably expected to result in material reputational harm to the Company and/or any of its Subsidiaries or would otherwise materially impair the Company’s ability to conduct its business in the ordinary course;
(xi) enter into an arrangement, agreement, contract, transaction or understanding which provides for a restrictive covenant, term or other provision (including non-competition, non-solicitation, no-hire or exclusivity), in each case, that directly or indirectly prohibits, binds, restricts, limits or prevents in any manner the business or operations of such Investor and/or its Affiliates (for the avoidance of doubt, enter into customary confidentiality agreements binding on the Directors in their capacities as such shall not require the consent of any Investor), excluding in connection with any Drag Along Sale in accordance with Section 7.4; and/or
(xii) authorize, declare, make or pay non-cash distributions or any other distributions in-kind by the Company.
(c) Excluded Matters. Notwithstanding anything in this Agreement or other Transaction Documents to the contrary, no consent or approval of any of the Silgan Investors or the A-VL Investors shall be required or apply with respect to:
(i) the Special Distribution;
(ii) the matters, transactions and distributions pursuant to Section 4.6; and
(iii) any Priority Payment Amount Distribution.
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(d) Replacement of Chief Executive Officer. In the event that (a) no Spin-Off has occurred on or prior to the four (4) year anniversary of the Effective Date, and (b) the Company’s trailing 12-month EBITDA is below an amount equal to one hundred percent (100%) of the Company’s EBITDA at the Effective Date, calculated without giving pro forma effect to any cost savings, revenue enhancements or other synergies that are projected, estimated or otherwise not yet reflected in the Company’s actual consolidated financial results for the applicable trailing twelve-month period, the A-VL Investors shall have the right to require that the Board replace the person then serving as the Chief Executive Officer (or the Company’s primary executive Officer, however denominated, or any of the persons then serving as a co-Chief Executive Officer or co-primary executive Officers) by providing the Company written notice, with such replacement to be approved by the A-VL Investors in writing (provided that the A-VL Investors’ consent to any replacement shall not be unreasonably withheld, conditioned or delayed).
(e) Deemed Consent; Escalation.
(i) If any proposed matter requires the consent of an Investor under this Section 4.3 and (x) such consent is requested in writing and (y) such Investor fails to deliver written approval or written objection within five (5) Business Days of such Investor’s receipt of all reasonably requested information in connection with such proposed matter, the consent of such Investor shall be deemed given.
(ii) Without limiting Section 4.3(e)(i), if any proposed matter requires the consent of an Investor under this Section 4.3 and (x) such consent is requested in writing and (y) such Investor objects, the proposed matter may be escalated to senior management of each of the Silgan Investors and the A-VL Investors to try to resolve.
(f) Respective Rights of Silgan Holdings and the A-VL Investors.
(i) Notwithstanding anything herein to the contrary, including Section 4.3(a)(vi), with respect to any rights of the Company vis-à-vis the A-VL Investors or any obligations of the A-VL Investors owed to the Company pursuant to any Specified Transaction Document, Silgan Holdings will have the sole ability to enforce such rights or obligations on behalf of the Company.
(ii) Notwithstanding anything herein to the contrary, including Section 4.3(a)(vi), with respect to any rights of the Company vis-à-vis Silgan Holdings or any obligations of Silgan Holdings owed to the Company pursuant to any Specified Transaction Document, the A-VL Investors will have the sole ability to enforce such rights or obligations on behalf of the Company.
(g) Consulting Agreement. Notwithstanding anything to the contrary in this Agreement or the Consulting Agreement, for so long as the consent of the A-VL Investors would be required under Section 4.3(b)(vi) to remove the Chairperson, Silgan Holdings shall not, and shall cause its Affiliates and any assignee of the Consulting Agreement not to, without the prior written consent of the A-VL Investors, (i) terminate (or deliver notice to terminate) the Consulting Agreement, whether unilaterally or by agreement, other than for Cause (as determined in accordance with and pursuant to Section 4.1(f)) or (ii) amend, waive or assign the Consulting Agreement, or enter into any other arrangement with the initial Chairperson, (A) in a manner that circumvents clause (i) of this Section 4.3(g) or Section 4.3(b)(vi), including by changing the termination provisions of, or reducing the initial Chairperson’s compensation under, the Consulting Agreement or (B) that increases the initial Chairperson’s compensation under the Consulting Agreement or otherwise in his role as Chairperson. Any assignment of the Consulting Agreement shall be conditioned on the assignee agreeing in writing to be bound by this Section 4.3(g). Section 4.3(e)(i) shall not apply to any consent under this Section 4.3(g).
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Section 4.4. Business Perspective. The Company and its Subsidiaries shall maintain a rolling five-year business perspective (the “Business Perspective”), which shall include an annual budget (the “Budget”) for the first year of such Business Perspective. The initial Business Perspective, adopted as of the Effective Date, is set forth on Exhibit D and includes the initial Budget for the period from the Effective Date through the end of the first full fiscal year following the year in which the Effective Date occurs. For every subsequent fiscal year, the Company shall prepare and submit a draft Business Perspective (including a draft Budget for the next fiscal year) to the Board for approval. At least thirty (30) days prior to submission of such Business Perspective and Budget to the Board for approval, the Company shall provide a complete draft thereof to each Investor (for so long as such Investor has the right to designate at least one (1) Director under this Agreement), and each of the Company and each such Investor shall reasonably and in good faith consider any comments provided by any other such Investor and attend a reasonable number of meetings (in person or by means of a conference telephone or other communications equipment allowing all Persons participating in the meeting to hear each other at the same time) as any such Investor may reasonably request to discuss their comments to such draft Business Perspective and draft Budget.
Section 4.5. Management Investment Vehicles.
(a) Generally.
(i) MIV Securities Exchange. Notwithstanding anything herein to the contrary, in connection with the consummation of a Drag Along Sale, the Silgan Investors, in accordance with the terms of the governing documents of the applicable Management Investment Vehicle, may require that the applicable Management Investment Vehicle repurchase or redeem any Securities of the applicable Management Investment Vehicle in exchange for a number of Securities of the Company having a fair market value equal to the fair market value of such Securities of the applicable Management Investment Vehicle being so exchanged (as determined in good faith by the Board), with such Securities representing direct economic ownership of the Company that is substantially equivalent to the indirect economic ownership of the applicable Management Investment Vehicle represented by such Securities of the applicable Management Investment Vehicle (any such transaction, a “MIV Securities Exchange”); provided, that, no MIV Securities Exchange shall (x) adversely affect the economic interests of the Silgan Investors or the A-VL Investors, other than any dilution on a pro rata basis with the other Unitholders, or (y) adversely affect the governance rights of the Institutional Investors. For the avoidance of doubt, any Drag Along Sale may be structured such that a MIV Securities Exchange is consummated immediately prior to or in connection with the Drag Along Sale, as applicable.
(ii) Redemption or Forfeiture of Securities of, or held by, a Management Investment Vehicle. In the event that any Securities of a Management Investment Vehicle are repurchased, redeemed or forfeited by the applicable holder thereof, the Company shall repurchase or redeem from the applicable Management Investment Vehicle or the applicable Management Investment Vehicle shall automatically forfeit, as applicable, a proportionate number of Securities of the Company that had been issued to the applicable Management Investment Vehicle in connection with the issuance by the applicable Management Investment Vehicle to such holder. In the event that any Securities of the Company are repurchased, redeemed or forfeited by a Management Investment Vehicle, the applicable Management Investment Vehicle shall repurchase or redeem from the applicable holder thereof or the applicable holder thereof shall automatically forfeit, as applicable, a proportionate number of Securities of the applicable Management Investment Vehicle that had been issued to the applicable holder thereof in connection with the issuance to the applicable Management Investment Vehicle by the Company.
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(b) Necessary Actions. Each Unitholder shall take all Necessary Action to effectuate any MIV Securities Exchange or other transaction contemplated by this Section 4.5.
(c) Expenses. All costs, fees and expenses incurred by, or relating to, a Management Investment Vehicle or any Investor in connection with the administration or conduct of any Management Investment Vehicle, including any MIV Securities Exchange, shall be borne by the Company or any of its Subsidiaries; provided, that any fees and expenses incurred by, or relating to, a Management Investment Vehicle of the type contemplated by clause (ii) of the definition thereof, shall only be borne by the Company or any of its Subsidiaries with the prior written consent of the Silgan Investors and the A-VL Investors.
Section 4.6. Pension Plans. It is the intention of the Silgan Investors and the A-VL Investors that any Pension Plan that is overfunded as of the Effective Date be terminated as soon as reasonably practicable in a manner to best maximize the after-tax reversion of excess Pension Plan assets to the Company as shall be determined by the Board, and the parties agree to work in good faith to timely effectuate the same prior to any Initial Public Offering or Sale Transaction. Each of the Silgan Investors, the A-VL Investors and the Company acknowledge that any reversions attributable to terminated Pension Plans are subject to federal excise taxes of up to 50% and are subject to corporate income taxes (including treatment as recovery of a prior deduction). The Board shall have the authority to terminate such Pension Plans and shall analyze available methods prescribed by the Code to accomplish the foregoing, including the reduction of applicable excise taxes under Code Section 4980 by using excess assets from such Pension Plans to increase plan benefits on a pro rata basis (by using 20% of the assets that would have been received as a reversion to do so) or by transferring excess assets to a qualified replacement plan (by using 25% of the assets that would have been received as a reversion to do so), in either case, in accordance with Code Section 4980(d). The Board shall communicate its intention and procedure regarding any Pension Plan termination process to the Investors from time to time and when reasonably requested by the Investors. If a Pension Plan is terminated, any Pension Plan assets that revert to the Company or its Subsidiaries shall, after applicable taxes and reasonable out-of-pocket third party expenses (including, for the avoidance of doubt, those resulting from the application of procedures set forth in Code Section 4980(d)), be allocated 20% to the A-VL Investors and 80% to the Silgan Investors. The Company shall provide written notice to each of the Silgan Investors and the A-VL Investors promptly (and in any event within five (5) Business Days) following the determination that any such reversion will be effected, which notice shall set forth in reasonable detail the estimated amount of the reversion, the applicable Pension Plan(s) to which it applies, the estimated amounts allocable to each of the Silgan Investors and the A-VL Investors, the anticipated date of payment to the Company of the reversion, and the estimated amounts to be distributed and anticipated date of distribution to the Investors. Upon realization of any such reversion, the Company shall cause payment of the distributable amounts to be made by wire transfer of immediately available funds to a bank account identified in writing by each of the Silgan Investors and the A-VL Investors, respectively, within five (5) Business Days of providing written notice of such realization. The payment of such remaining plan assets to the A-VL Investors shall be treated, solely for U.S. federal, state, local and non-U.S. income tax purposes, as an adjustment to the purchase of the Units of each respective A-VL Investor unless otherwise required by a “determination” within the meaning of Section 1313 of the Code. The Company shall, and the Silgan Investors shall (solely by exercising their rights as Unitholders and under this Agreement to cause the Company to, and only for so long as the Silgan Investors hold any Units), add back to EBITDA all non-cash expenses related to the Pension Plans when (i) the Company is reporting the Company’s EBITDA (as defined in the Credit Agreement) to lenders, (ii) calculating EBITDA for purposes of Section 7.6(g) (including in connection with any Spin-Off Request, Conditional Liquidity Transaction or Call Right) or (iii) the Company becomes required to file its reports pursuant to Sections 13(a) and 15(d) of the Exchange Act.
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Section 4.7. TSA Matters. The Investors agree that, for so long as the Transition Services Agreement is in effect, the A-VL Investors shall have a right to appoint one (1) representative of the Company on the Steering Committee (as defined in the Transition Services Agreement). In the event that the Company declines to exercise or enforce any of the rights set forth on Exhibit K hereto (the “Scheduled TSA Rights”) under or in connection with the Transition Services Agreement, the A-VL Investors shall have the right to cause the Company to exercise or enforce such Scheduled TSA Right(s) in accordance with the Transition Services Agreement. Other than the Scheduled TSA Rights, the Board shall exclusively control the exercise or enforcement of any of the Company’s rights under or in connection with the Transition Services Agreement.
ARTICLE V
ACCOUNTING AND RECORDS
Section 5.1. Records and Accounting. The books and records of the Company shall be kept, and the financial position and the results of its operations recorded, at the expense of the Company in accordance with United States generally accepted accounting principles. The books and records of the Company shall reflect all the Company transactions and shall be appropriate and adequate for the Company’s business. Unless otherwise determined by the Board of Directors, the Company’s fiscal year for financial reporting purposes and, except as required by Section 706 of the Code, the Company’s taxable year for U.S. federal income tax purposes shall be the calendar year (the “Fiscal Year”).
Section 5.2. Access to Accounting Records. All books and records of the Company shall be maintained at any office of the Company or at the Company’s principal place of business and, subject to Section 11.7, the duly authorized representatives of any of the Silgan Investors and the A-VL Investors shall have access to them at such office of the Company and the right to inspect and copy them at reasonable times on reasonable advance written notice, subject to any reasonable restrictions thereon required by the Board of Directors.
Section 5.3. Accounting Matters. Accounting matters shall be conducted under the oversight and authority of the Board, which may in good faith delegate such matters to the Company Representative, Officers, employees, accountants and other advisors of the Company and its Subsidiaries.
Section 5.4. Tax Returns.
(a) The Company (and/or its Subsidiaries, employees and/or agents) shall prepare, or cause to be prepared, all U.S. federal, state, local and non-U.S. tax returns of the Company for each year for which such returns are required to be filed, shall file, or cause such returns to be timely filed, and shall determine the appropriate treatment of each item of income, gain, loss, deduction and credit of the Company and the accounting methods and conventions under the tax Laws of the United States, the several states and other relevant jurisdictions as to the treatment of any such item or any other method or procedure related to the preparation of such tax returns. All such tax returns of the Company shall be prepared and filed in a manner consistent with this Agreement unless otherwise required by a “determination” within the meaning of Section 1313 of the Code or any similar provision of state, local or non-U.S. Law. Each Member agrees that it shall use reasonable efforts to provide the Company with any information reasonably requested by the Company that is necessary for the Company and its Subsidiaries to prepare and file tax returns, prepare any tax information requested by a Member, determine the tax treatment of any item, or otherwise determine or mitigate any tax liability of the Company and its Subsidiaries (or tax liability as reflected on any Company tax return) or comply with any tax filing requirements. The Company shall deliver to each Member (i) as soon as reasonably practicable after the end of each Fiscal Year, an estimate of taxable income for the immediately preceding Fiscal Year, (ii) within one-hundred twenty (120) days after the end of each Fiscal Year, an IRS Schedule K-1 and (iii) upon the request of a Member, all other information reasonably necessary for the preparation of such Member’s tax returns.
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(b) To the extent permitted by applicable law, neither the Company nor any of its Subsidiaries shall file any tax return on a combined, consolidated, unitary or similar basis with any of its Members (including any Affiliate thereof). If the Company (or any Subsidiary thereof) is required to file a tax return on a combined, consolidated, unitary and/or similar basis with any Member (or any Affiliate thereof (other than the Company and its Subsidiaries)), the Company shall reimburse such Member, no later than five (5) Business Days prior to the filing of the applicable tax return, for any tax (and any interest and penalties related thereto) incurred in connection with such combined, consolidated, unitary or similar tax return in an amount equal to the tax (and any interest and penalties related thereto) the Company (and/or its Subsidiaries) would be liable for if the Company and its applicable Subsidiaries filed such tax return on a standalone basis (without such Member (and any of its Affiliates)). In the event the Company or any Subsidiary is assessed for any combined, consolidated, unitary or similar taxes (and any interest and penalties related thereto) attributable to any combined, consolidated, unitary or similar tax return filed (or required to be filed) by any Member or Affiliate thereof, such Member shall reimburse the Company in a manner consistent with the apportionment principles described in the preceding sentence for such Member’s portion of such tax. The Company and each Member agrees to cooperate with each other with respect to (i) the filing of any tax return that is required to be filed on a combined, consolidated, unitary or similar basis, (ii) any tax audit, examination contest or proceeding related thereto and (iii) any payment made by the Company to its Member(s) pursuant to this Section 5.4(b). Notwithstanding anything in this Agreement to the contrary, this Section 5.4(b) shall apply solely with respect to taxable periods (or portions thereof) beginning after the Closing Date (as defined in the Transaction Agreement).
Section 5.5. Treatment as Partnership. The Members intend that the Company is to be classified as a partnership for U.S. federal, state and local income tax purposes and neither the Company, the Board of Directors nor any Member shall make any election or take any action contrary.
Section 5.6. Section 754 Election. Each Member agrees that the Company and any other Subsidiary classified as a partnership for U.S. federal income tax purposes shall make an election under Section 754 of the Code for the taxable year of the Company that includes the effective date of any Initial Public Offering or any other taxable Transfer of Units by any A-VL Investor. The Board of Directors shall not revoke any election under Section 754 in effect for the Company and its Subsidiaries.
Section 5.7. Tax Matters Member. The Silgan Investors (or any Member selected by the Silgan Investors that agrees in writing with the Silgan Investors) shall act as or appoint the “partnership representative” within the meaning of Section 6223(a) of the Code (the “Company Representative”), in each case, with all powers attendant thereto, who shall be authorized and required to represent the Company (at the Company’s expense) in connection with all examinations of the Company’s affairs by tax authorities with respect to the applicable taxable periods (including making an election under Section 6226 of the Code), including resulting administrative and judicial proceedings, and to expend the Company’s funds for professional services and costs associated therewith. Any Member that is the Company Representative shall act at the direction of the Board in performing its duties and exercising its powers as the Company Representative. Each Member agrees to reasonably cooperate with the Board of Directors and the Company Representative (including supplying all information, documents, self-certifications, tax identification numbers, tax forms, and verifications thereof, that the Company Representative reasonably deems necessary in connection with (i) any information required for the Company to determine the application of Sections 6221-6241 of the Code to the Company, (ii) an election by the Company under Section 6221(b) or 6226 of the Code and (iii) an audit or a final adjustment of the Company by a taxing authority) and to do or refrain from doing any or all things reasonably required by them to conduct such proceedings; provided, that, such information and disclosure obligations shall be subject in all respects to each respective Member’s
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confidentiality policies and obligations, including with respect to its indirect beneficial owners; provided, further, that, notwithstanding anything herein to the contrary, nothing in this Agreement shall require a Member to amend or refile a tax return. The Company shall indemnify the Company Representative for any costs, expenses or liabilities incurred as a result of any actions or failures to take actions in its capacity as Company Representative other than to the extent arising from a breach by such Person of this Agreement or to the extent resulting from such Person’s acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law. All actions of the Company or the Company Representative in respect of tax returns or taxes shall be subject to Section 4.3(a)(v) of this Agreement. Any deficiency for taxes imposed on any Member (including penalties, additions to tax or interest imposed with respect to such taxes) shall be paid by such Member, and if required to be paid (and actually paid) by the Company, shall be recoverable from such Member as provided in Section 6.2(f); provided, however, that the A-VL Investors shall not be liable for penalties, additions to tax or interest imposed with respect to such taxes if such indemnity claim is in connection with acts or omissions of the Company which are not in good faith or which involve intentional misconduct, fraud or a knowing violation of law. The provisions of this Section 5.7 and the obligations of a Member pursuant to this Section 5.7 shall survive a Member ceasing to be a Member of the Company and the termination, dissolution, liquidation and winding up of the Company.
Section 5.8. Section 245A Elections. To the extent the election pursuant to Treasury Regulations Section 1.245A-5(e)(3) is permitted by applicable law for the taxable year which includes the Closing (as defined in the Transaction Agreement), each Member hereby delegates the authority to the Company to enter into a binding agreement described in Treasury Regulations Section 1.245A-5(e)(3)(i)(C)(2) on behalf of such Member (and any direct or indirect owners of such Member) in connection with any transfer of any “controlled foreign corporation” within the meaning of Section 957(c) of the Code to the Company in connection with the transactions contemplated by the Transaction Agreement to the extent such Member (or, to the extent such Member is treated as a partnership for U.S. federal tax purposes, any direct or indirect owners of such Member) is a “U.S. tax resident” within the meaning of Treasury Regulations Section 1.245A-5 and a United States shareholder within the meaning of Section 951(b) of the Code and the applicable Section 958 regulations with respect to such controlled foreign corporation as of the end of the date such transfer is consummated.
ARTICLE VI
CAPITAL ACCOUNTS; ALLOCATIONS; DISTRIBUTIONS
Section 6.1. Capital Accounts.
(a) There shall be established for each Member on the books of the Company a Capital Account which shall be increased or decreased in the manner set forth in this Agreement.
(b) A Member shall not have any obligation to the Company or to any other Member to restore any negative balance in the Capital Account of such Member.
Section 6.2. Allocations of Net Income and Net Loss and Other Tax Matters.
(a) Timing and Amount of Allocations of Net Income and Net Loss. Net Income and Net Loss (and items thereof) of the Company shall be determined and allocated with respect to each fiscal year of the Company as of the end of each such year or as circumstances otherwise require or allow. Subject to the other provisions of this Section 6.2, an allocation to a Member of a share of Net Income or Net Loss shall be treated as an allocation of the same share of each item of income, gain, loss or deduction that is taken into account in computing Net Income or Net Loss.
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(b) General Allocations. Except as otherwise provided in this Agreement, all Net Income and Net Loss (and items thereof) shall be allocated in a manner such that the Capital Account of each Member after giving effect to the allocations set forth in Section 6.2(c) is, as nearly as possible, equal (proportionately) to (i) the distributions that would be made pursuant to Section 6.3 (assuming all Unvested Units are Vested Units) if the Company were dissolved, its affairs wound up and its assets sold for cash equal to their Gross Asset Value immediately prior to such dissolution, all Company liabilities were satisfied (limited with respect to each non-recourse liability to the Gross Asset Value of the assets securing such liability) and the net assets of the Company were distributed in accordance with Section 6.3, to the Members immediately after making such allocation, minus (ii) such Member’s share of Company Minimum Gain and Member Minimum Gain, computed immediately prior to the hypothetical sale of assets. Notwithstanding the foregoing, the Board of Directors may make such allocations as it deems reasonably necessary in good faith to give economic effect to the provisions of this Agreement, taking into account such facts and circumstances as it deems reasonably necessary for this purpose.
(c) Additional Allocation Provisions. Notwithstanding the foregoing provisions of this Section 6.2:
(i) Regulatory Allocations.
(A) If there is a net decrease in Company Minimum Gain or Member Minimum Gain during any fiscal year, the Member shall be allocated items of Company income and gain for such year (and, if necessary, for subsequent years) in accordance with Treasury Regulations Section 1.704-2(f) or 1.704-2(i)(4), as applicable. It is intended that this Section 6.2(c)(i)(A) qualify and be construed as a “minimum gain chargeback” and a “chargeback of partner nonrecourse debt minimum gain” within the meaning of such Treasury Regulations, which shall be controlling in the event of a conflict between such Treasury Regulations and this Section 6.2(c)(i)(A).
(B) If any Member unexpectedly receives an adjustment, allocation or distribution described in Treasury Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), items of Company income and gain shall be allocated, in accordance with Treasury Regulations Section 1.704-1(b)(2)(ii)(d), to the Member in an amount and manner sufficient to eliminate, to the extent required by such Treasury Regulations, the Adjusted Capital Account Deficit of the Member as quickly as possible. It is intended that this Section 6.2(c)(i)(B) qualify and be construed as a “qualified income offset” within the meaning of Treasury Regulations Section 1.704-1(b)(2)(ii)(d), which shall be controlling in the event of a conflict between such Treasury Regulations and this Section 6.2(c)(i)(B).
(C) Nonrecourse Deductions for any Fiscal Year shall be specially allocated to the Members in a manner determined by the Board in good faith consistent with Treasury Regulations Sections 1.704-2(b) and 1.704-2(c).
(D) Any Member Nonrecourse Deductions for any Fiscal Year shall be specially allocated to the Member who bears the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in accordance with Treasury Regulations Sections 1.704-2(i)(1) and 1.704-2(j)(1).
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(E) The allocations set forth in Section 6.2(c)(i)(A) through Section 6.2(c)(i)(D) (the “Regulatory Allocations”) are intended to comply with certain regulatory requirements, including the requirements of Treasury Regulations Sections 1.704-1(b) and 1.704-2. Notwithstanding the provisions of Section 6.2(b), the Regulatory Allocations shall be taken into account in allocating other items of income, gain, loss and deduction among the Members so that, to the extent possible, the net amount of such allocations of other items and the Regulatory Allocations to each Member shall be equal to the net amount that would have been allocated to each such Member if the Regulatory Allocations had not occurred (taking into account the likelihood that any such Regulatory Allocations will be offset or reversed in the future by other Regulatory Allocations).
(ii) For any Fiscal Year during which a Member’s interest in the Company is assigned by such Member (or by a Transferee or successor in interest to a Member), the portion of the Net Income and Net Loss of the Company that is allocable in respect of such Member’s interest shall be apportioned between the assignor and the Transferee of such Member’s interest using a closing of the books method, or otherwise using any permissible method under Section 706 of the Code and the Treasury Regulations thereunder as reasonably determined by the Board of Directors and the applicable assignor.
(d) Tax Treatment of Class B Units.
(i) The Members intend that the taxation of the issuance of Class B Units hereunder, shall be determined in accordance with Rev. Proc. 93-27, 1993 2 C.B. 343 and Rev. Proc. 2001-43, 2001 2 C.B. 191, with the effect that each such Class B Unit shall be treated as a profits interest with an initial Capital Account of $0 and, accordingly, distributions to the Class B Members shall be limited to the extent necessary so that each Member’s Class B Units constitute a profits interest for U.S. federal income tax purposes. All Members consent to the making of any election by the Company necessary to cause the Class B Units to be treated as profits interests and to take such actions and make such elections as may be required or permitted under such in order for the Class B Units to be so treated.
(ii) The Company and each Class B Member will (i) treat all Class B Units as outstanding for tax purposes, (ii) treat each Class B Member as a partner of the Company for tax purposes with respect to its Class B Units and (iii) file all tax returns and reports consistently with the foregoing (except for non-U.S. returns or reports for which a different tax treatment is required by applicable non-U.S. law). Upon the issuance of Class B Units to a Class B Member, and at the time that any portion of such Class B Member’s Class B Units vests pursuant to the terms of this Agreement or an applicable Employee-Related Agreement, or otherwise, neither the Company nor any of its Members will deduct any amount (as wages, compensation or otherwise) for U.S. federal income tax purposes.
(e) Required Tax Allocations. For income tax purposes, all items of income, gain, loss, deduction and credit for U.S. federal income tax purposes shall be allocated to each Member in the same manner as the Net Income or Net Loss that is allocated to such Member pursuant to Section 6.2(a), Section 6.2(b) and Section 6.2(c) to which such tax items relate; provided that income, gain, loss, deduction and credit with respect to property whose basis differs from its Gross Asset Value (including with respect to a revaluation event pursuant to Treasury Regulations Sections 1.704-1(b)(2)(iv)(f)) shall be allocated solely for income tax purposes in accordance with the principles of Sections 704(b) and 704(c) of the Code using (i) with respect to the assets of the Company held as of the Effective Date (as defined in the Transaction Agreement), the method described in Treasury Regulations Section 1.704-3(b) (the “traditional method”) and (ii) with respect to all other assets, any other method determined by the Board of Directors in its reasonable discretion exercised in good faith and, for the avoidance of doubt, subject to Section 4.3(a)(v) of this Agreement.
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(f) Withholding. Each Member hereby authorizes the Company to withhold and to pay any taxes payable by the Company or any of its Affiliates as a result of such Member’s participation in the Company (e.g., backup withholding taxes, withholding under Section 1446 of the Code, and any payments under Section 6225 of the Code). If and to the extent that the Company shall be required to withhold any such taxes, such Member shall be deemed for all purposes of this Agreement to have received a payment from the Company as of the time such withholding is required to be paid, which payment shall be deemed to be a distribution to such Member. The Company shall use commercially reasonable efforts to provide a Member notice of withholding at least five (5) days prior to such withholding and reasonably cooperate with such Member to reduce or eliminate such withholding. The withholding referred to in this Section 6.2 shall be made at the maximum applicable statutory rate under applicable tax law unless the Board of Directors receives documentation, reasonably satisfactory to the Board of Directors, to the effect that a lower rate is applicable, or that no withholding is applicable. To the fullest extent permitted by law, each Member hereby agrees to indemnify and hold harmless the Company from and against any tax liability (including any liability for taxes, penalties, additions to tax or interest) with respect to such withholding in respect of such Member (to the extent not otherwise satisfied under this Section 6.2(f)) or any Entity Taxes attributable to such Member. In addition, as security for any withholding tax or other liability or obligation to which the Company may be subject as a result of any act or status of any Member, or to which the Company may become subject with respect to the interest of any Member, the Company shall have (and each Member hereby grants to the Company), to the fullest extent permitted by law, a security interest in all assets of the Company distributable to such Member to the extent of the amount of such withholding tax or other liability or obligation. The Company shall have a right of set off against such distributions of assets of the Company in the amount of such withholding tax or other liability or obligation. The obligations of a Member set forth in this Section 6.2(f) shall survive the withdrawal of any Member from the Company or any transfer of a Member’s Interest.
Section 6.3. Distributions.
(a) Generally. Distributions in respect of the Units shall be made only to the Members who, according to the books and records of the Company, are the holders of record of the Units in respect of which such distributions are made on the actual date of distribution. Neither the Company nor any Member shall incur any liability for making distributions in accordance with the provisions of this Section 6.3, whether or not the Company or the Member has knowledge or notice of any transfer or purported transfer of ownership of Units in the Company that is not permitted under this Agreement. Subject to Section 18-607 of the Delaware Act and Section 6.3(c), distributions shall be made to the Members at such times and in such amounts as determined by the Board of Directors (subject to Section 4.3(a)(i)) but, unless the Silgan Investors and the A-VL Investors otherwise agree in writing, at least on a quarterly basis, to the extent the Company has Distributable Cash and is permitted to make distributions under the Credit Agreement. The amount of any non-cash distribution shall be determined by the Board of Directors by reference to the fair market value of the assets being distributed. If any Applicable Distribution consists of more than one kind of asset, the assets to be distributed in such Applicable Distribution shall be allocated as determined by the Board of Directors in its reasonable discretion; provided, that each of the A-VL Investors and each of the Silgan Investors shall be treated the same in any such allocation; provided, further, that the aggregate value received by each Member in such Applicable Distribution shall in all cases be determined in accordance with this Section 6.3.
(b) Non-Tax Distributions. Notwithstanding anything herein to the contrary, the provisions set forth in this Section 6.3(b) are subject to Section 6.3(a), Section 6.3(c) and Section 6.3(d).
(i) Applicable Distributions. All distributions shall be made to the Members on a pro rata basis in proportion to the number of Units that are Vested Units held by each such Member (a distribution made pursuant to this Section 6.3(b)(i), an “Applicable Distribution”);
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provided, however, that, notwithstanding the foregoing, until the A-VL Investors have received an aggregate amount of Redirected Proceeds (as defined below) (that would otherwise have been payable to the Silgan Investors) in an amount equal to the Priority Payment Amount, 100% of the Applicable Distributions that would otherwise be payable with respect to Vested Units held by the Silgan Investors pursuant to this Section 6.3 shall instead be payable to the A-VL Investors in proportion to the number of Vested Units held by each such A-VL Investor (excluding, for the avoidance of doubt, any Tax Distributions, the “Redirected Proceeds”) (for the avoidance of doubt, it being acknowledged and agreed that the amount that would be payable with respect to Vested Units held by the A-VL Investors pursuant to this Section 6.3 without giving effect to this proviso shall not count toward satisfaction of the Priority Payment Amount); provided, that, subject to Section 6.3(b)(ii), unless otherwise determined by the Board of Directors in its sole discretion, for purposes of this Section 6.3(b)(i), each Class B Unit that is a Vested Unit held by a Class B Member shall only be entitled to participate in an Applicable Distribution to the extent that (A) the sum of (x) the aggregate amount received in respect of each Class A Unit that was issued and outstanding on the date of issuance of such Class B Unit and remains outstanding on the date of such Applicable Distribution (the “Applicable Class A Unit”) in all distributions pursuant to this Section 6.3(b)(i) and Section 6.3(c) from and after the date of issuance of such Class B Unit and prior to such Applicable Distribution plus (y) the amount to be received by such Applicable Class A Unit in such Applicable Distribution exceeds (B) the Hurdle Amount for such Class B Unit (any such excess for such Class B Unit, its “In-the-Money Value”), and then only to the extent of the lesser of (1) the amount of the In-the-Money Value of such Class B Unit and (2) such Class B Unit’s pro rata portion of the Applicable Distribution.
(ii) Discretionary Distributions. Notwithstanding anything in this Section 6.3 to the contrary, the Board of Directors may, in its sole discretion, authorize the Company to make a distribution to any Class B Unit under Section 6.3(b)(i) without regard to the proviso therein (a “Discretionary Distribution”); provided, that, unless otherwise determined by the Board of Directors in its sole discretion, (A) the amount of any such Discretionary Distribution made in respect of such Class B Unit shall not exceed the amount that such Class B Member would be entitled to receive in respect of such Class B Unit if 100% of the outstanding Units were sold in a hypothetical sale for a cash purchase price equal to the fair market value thereof as determined by the Board of Directors in good faith and the net proceeds thereof were distributed to the holders of Units in accordance with Section 14.2 and (B) any such Discretionary Distribution made in respect of such Class B Unit shall be treated as an advance on, and shall reduce, dollar-for-dollar, any subsequent distributions to be made under Section 6.3(a), Section 6.3(b), Section 6.3(c) and Section 14.2 in respect of such Class B Unit.
(iii) Unvested Units. Unless otherwise determined by the Board of Directors in its sole discretion, no Applicable Distribution shall be made in respect of any Unvested Units. The amount of any Applicable Distribution that would have otherwise been distributed in respect of such Unit that is an Unvested Unit had such Unit been a Vested Unit at the time of such initial Applicable Distribution (for each such Unvested Unit, the “Unpaid Amount”) shall, unless otherwise determined by the Board of Directors in its sole discretion, be distributed once such Unvested Units subsequently become Vested Units, to the Members in the same manner as an Applicable Distribution pursuant to Section 6.3(b)(i) and, if applicable, Section 6.3(b)(ii). To the extent that any such Unvested Units subsequently become Vested Units and are outstanding at the time of any subsequent Applicable Distribution (any such outstanding Vested Units, “Subsequently Vested Units”, and such subsequent Applicable Distribution, the “Subsequent Applicable Distribution”), then at the time of such Subsequent Applicable Distribution such Subsequently Vested Units shall each receive a special priority distribution at such time (in addition to their respective pro rata share of such Subsequent Applicable Distribution remaining after such special priority distribution) equal to the Unpaid Amounts that have not otherwise been previously paid in respect of such Subsequently Vested Units. Any distribution pursuant to this Section 6.3(b)(iii) shall be reduced by any and all Tax Distributions made with respect to such Units pursuant to Section 6.3(c).
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(c) Tax Distributions. To the extent of distributable assets of the Company in the form of cash, and as may be permitted under any applicable loan, guarantee or other agreement under which the Company or any of its Subsidiaries has borrowed money, as determined by the Board of Directors in its sole good faith discretion, the Board of Directors shall cause the Company to make priority distributions (“Tax Distributions”) to each Member with respect to each taxable year equal to the excess of (A) (1) the net taxable income of the Company for such taxable year allocated to such Member (determined by excluding any adjustments under Section 743 of the Code, including allocations under Section 704(c) of the Code, and excluding any “excess business interest expense” allocable to a Member under Section 163(j) of the Code) taking into account net taxable losses from prior taxable years (for this purpose, treating the first taxable year of the Company as beginning on the date hereof) allocated to such Member to the extent that such losses or deductions are permitted to be carried forward, are of a character that would permit such losses or deductions to be deducted by such Member against the current taxable income of the Company allocable to such Member and have not previously been taken into account in determining Tax Distributions, multiplied by (2) the highest combined marginal U.S. federal, state and local income tax rate (including taxes imposed under Section 1411 of the Code) applicable at such time to a corporation or a natural person residing in New York City, New York, or San Francisco, California, whichever is highest (determined after giving effect to the maximum allowable deduction for state and local income taxes for U.S. federal income tax purposes, net of any phaseouts or limitations and taking into account the varying rates applicable to different types of income and any applicable limitations on deductions) over (B) the amount of distributions previously made to such Member with respect to such taxable year under Section 6.3(b). The Board of Directors shall cause the Company to make Tax Distributions on an estimated basis quarterly at least five (5) days prior to the due date for estimated corporate tax payments (or with such other frequency as determined by the Board in consultation with management) based on similar principles. Tax Distributions shall be made on a pro rata basis among all Members holding Class A Units determined based on the largest Tax Distribution on a per Unit basis. If, with respect to a given taxable year or quarterly period, the Company is unable to fully fund all required Tax Distributions, any such Tax Distributions with respect to such period shall be made pro rata among all Members in accordance with their respective entitlement to Tax Distributions, and any such unpaid Tax Distributions shall be promptly paid once the Company has available cash or as permitted under the applicable debt documents (as applicable). The Board of Directors shall use commercially reasonable efforts to ensure that the Company’s (and its Subsidiaries’) debt documents permit the timely funding and making of Tax Distributions in full. A Tax Distribution to a Member in respect of any Unit shall be treated as an advance on, and shall reduce, dollar-for-dollar, any subsequent distributions to be made under Section 6.3(b) or Section 14.2 with respect to such Unit. Notwithstanding the foregoing, the Company shall not be required to make any distribution pursuant to this Section 6.3(c) with respect to any Unvested Units if the Company has not allocated any taxable income in the applicable taxable period to such Unvested Units. Notwithstanding the foregoing, in the event of a Spin-Off or a Blocker Reorganization (but without duplication), the Company will make a Tax Distribution as soon as reasonably practicable prior to the Spin-Off or a Blocker Reorganization in an amount equal to the good faith estimate of the accrued and unpaid income tax liabilities of all applicable A-VL Blocker Entities. For the avoidance of doubt, the Tax Distribution made pursuant to the previous sentence shall be made on a pro rata basis among all Members holding Class A Units.
(d) Other Matters. If all or a portion of a Member’s Units are transferred (including pursuant to a purchase by the Company), then subsequent distributions (i) to the transferor Member pursuant to this Agreement with respect to the portion of such Member’s Units (if any) that are not so transferred shall be determined without regard to amounts previously distributed to such transferor Member in respect of the Units so transferred and (ii) to the transferee Member pursuant to this Agreement shall be determined with regard to amounts previously distributed to the transferor Member in respect of the Units so transferred.
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(e) Tax Treatment of the Priority Payment Amount Distribution. The Members intend for the Priority Payment Amount Distribution to be treated as a return of capital for U.S. federal (and where applicable, state and local) income tax purposes and neither the Company nor any Member shall take any position that is inconsistent with such treatment unless otherwise required by a “determination” within the meaning of Section 1313(a) of the Code.
ARTICLE VII
TRANSFER RESTRICTIONS
Section 7.1. General Restrictions on Transfers.
(a) No Unitholder may, directly or indirectly, whether by operation of law or otherwise, sell, exchange, assign, pledge, hypothecate, gift or otherwise transfer, dispose of or encumber (all of which acts shall be deemed included in the term “Transfer” as used in this Agreement) any Securities or any legal, economic or beneficial interest in any Securities (in each case, whether held in its own right or by its representatives), unless (i) such Transfer (unless solely consisting of an Encumbrance) is made on the books of the Company, the applicable direct or indirect parent or the applicable direct or indirect Subsidiary or investment holding vehicle with respect to any of the foregoing, (ii) such Transfer is not in violation of this Article VII or any other agreement pursuant to which such Unit was granted, issued or sold and (iii) the transferee of such Securities (if other than (A) the Company, any newly formed direct or indirect parent thereof or any direct or indirect Subsidiary or investment holding vehicle with respect to any of the foregoing or another Unitholder or (B) a transferee of Units pursuant to an offer and sale registered under the Securities Act) agrees to become a party to this Agreement pursuant to Article XII hereof (and, as applicable, the Restrictive Covenant Agreement) and executes such further documents as may be necessary or advisable, in the reasonable judgment of the Company, to make him, her or it a party hereto, including, to the extent such transferee is resident in a community property state, a Consent of Spouse, duly authorized, executed and delivered by such transferee’s spouse. Notwithstanding anything to the contrary in this Agreement, (1) a transfer of limited partnership interests or other equity interests in any of the A-VL Investors, any private equity fund Affiliated with the A-VL Investors or any direct or indirect parent entity or investment holding vehicle with respect to any such A-VL Investor or such private equity fund (including the admission of any new limited partner or member of, or the purchase, sale, transfer or issuance of any interest in, any investment fund managed or Controlled by A-VL Sponsor), and/or (2) a grant of any economic interest or other security in any of the Persons identified in the immediately preceding clause (1) by any of the Persons identified in the immediately preceding clause (1) to any Service Provider or any director, officer, employee or agent of any of the Persons identified in the immediately preceding clause (1), in each case, as a bona fide compensation or incentive arrangement and not to circumvent the restrictions of this Article VII, in each such case of clauses (1) and (2), shall not constitute a “Transfer” for purposes of this Agreement; provided, that clause (1) shall apply to a transfer or disposition only if (x) immediately following such transfer, A-VL Sponsor continues to Control each A-VL Investor, (y) such transfer does not result in any operating company or other portfolio company of A-VL Sponsor or its Affiliates, or any Company Competitor or Affiliate thereof, directly or indirectly holding any interest in any Units, and (z) no transferee thereby obtains any direct participation or governance rights in, or recourse to, the Company or any of its Subsidiaries. Notwithstanding the foregoing or anything to the contrary in this Agreement, (i) a transfer of equity or similar interests in any Person (other than a transfer described in, and satisfying the conditions of, the immediately preceding sentence) whose assets, directly or indirectly, consist primarily of Units or other Securities shall be deemed an indirect Transfer of such Units or other Securities subject to this Article VII, (ii) a direct or indirect pledge of equity or similar interests in any A-
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VL Investor or any direct or indirect parent entity or investment holding vehicle with respect to any A-VL Investor, in each case, that directly or indirectly holds Securities, to one or more lenders to secure bona fide indebtedness (and any execution of such pledge), so long as the pledgor remains an Affiliate of A-VL Sponsor (and the exercise of any remedies or foreclosure thereon, regardless of whether the pledgor remains an Affiliate of A-VL Sponsor following such exercise or foreclosure) shall not be deemed a Transfer for purposes of this Agreement, (iii) a pledge of Securities by an A-VL Investor to one or more lenders to secure bona fide indebtedness (and any execution of such pledge) shall not be deemed a Transfer for purposes of this Agreement so long as the pledgor remains an Affiliate of A-VL Sponsor; provided, that, for purposes of this clause (iii), in connection with the exercise of any remedies or foreclosure thereon, the lender shall receive only the economic rights attributable to the pledged Securities and shall have no other rights as a Member, Unitholder or Investor under this Agreement, and all such other rights of the applicable A-VL Investor with respect to the pledged Securities shall be immediately forfeited; provided, further, that, for purposes of this clause (iii), the applicable procedures and restrictions set forth in this Article VII shall be complied with prior to the completion of any such foreclosure or other exercise of remedies as if such foreclosure or other exercise of remedies were an anticipated Transfer, and any subsequent disposition by the lender of the pledged Securities or any interest therein shall be subject to, and may be consummated only in accordance with, the applicable procedures and restrictions set forth in this Article VII, and (iv) the Silgan Investors shall be strictly prohibited from pledging their respective Units or other Securities. Transfers of publicly traded securities of any direct or indirect parent entity of any Unitholder (including of Silgan Holdings), including pursuant to any merger, consolidation, tender or exchange offer, business combination or similar transaction involving such parent entity, shall not constitute a Transfer of such Unitholder’s Units for purposes of this Agreement (it being understood that the foregoing shall not limit the operation of Section 7.6(h)).
(b) Any purported Transfer of Securities or any interest in any Securities other than in accordance with this Agreement shall be null and void.
(c) Any Unitholder who is the subject of an Involuntary Transfer that is not otherwise permitted pursuant to this Agreement and, if applicable, the Employee-Related Agreement or any other agreement pursuant to which such Securities were issued, shall notify the Company in writing within ten (10) days of such Involuntary Transfer. Such notice will be considered an irrevocable offer to the Company (or any assignee(s) of the Company as designated by the Company) to purchase all of the Securities subject to the Involuntary Transfer (the “Involuntarily Transferred Securities”) for a cash purchase price equal to the FMV per Unit of the Involuntarily Transferred Securities at the time of such Transfer, which offer can be accepted at any time prior to one year following the receipt of such notice. On the closing of the purchase of Involuntarily Transferred Securities pursuant to this Section 7.1(c), the Company (or any assignee(s) of the Company as designated by the Company) will deliver cash equal to the purchase price of the Involuntarily Transferred Securities that are being purchased (the “Repurchased Securities”) and the Repurchased Securities will be assigned, transferred and delivered to the Company (or any assignee(s) of the Company as designated by the Company) free and clear of all Encumbrances.
(d) The Company shall not issue any Units, or any other Securities exercisable for, or convertible or exchangeable for Units, upon original issue or reissue or otherwise dispose of any Unit Equivalents (other than Units or such Securities registered under the Securities Act) unless the recipient or transferee of such Units or Securities (if other than a Unitholder) shall agree to become a party to this Agreement pursuant to Article XII hereof and executes such further documents as may be necessary or advisable, in the reasonable judgment of the Company, to make him, her or it a party hereto or thereto.
(e) Each Unitholder acknowledges that the Restricted Securities have not been registered under the Securities Act and may not be transferred except pursuant to an effective registration statement under the Securities Act or pursuant to an exemption from registration under the Securities Act.
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Each Unitholder agrees that it will not transfer any Restricted Securities at any time if such action would constitute a violation of any securities laws of any applicable jurisdiction or a breach of the conditions to any exemption from registration of Restricted Securities under any such laws or a breach of any undertaking or agreement of such Unitholder entered into pursuant to such laws or in connection with obtaining an exemption thereunder. Each Unitholder agrees that any Restricted Securities to be held by it, him or her shall bear the restrictive legend set forth in Section 11.5 if such Restricted Securities are represented by certificates.
(f) No Unitholder shall grant any proxy or enter into or agree to be bound by any voting trust with respect to any Securities or enter into any agreements or arrangements of any kind with any Person with respect to any Securities inconsistent with the provisions of this Agreement, including agreements or arrangements with respect to the acquisition, disposition or voting (if applicable) of any Securities, nor shall any Unitholder act, for any reason, as a member of a group or in concert with any other Persons in connection with the acquisition, disposition or voting (if applicable) of any Securities in any manner which is inconsistent with the provisions of this Agreement.
(g) Notwithstanding anything to the contrary set forth herein (for the avoidance of doubt, other than Section 7.5), no Transfer of Securities by a Unitholder shall be permitted unless such Transfer would not:
(i) violate the Securities Act or any state securities or “blue sky” laws;
(ii) cause the Company or any of its Subsidiaries to lose its status as a partnership for U.S. federal income tax purposes or cause the Company or any of its Subsidiaries to register as an “investment company” under the Investment Company Act of 1940, as amended;
(iii) otherwise cause the Company or any of its Subsidiaries to violate any applicable law;
(iv) cause all or any portion of the assets of the Company or any of its Subsidiaries to constitute “plan assets” of any Unitholder under ERISA or the Code or to be subject to the provisions of ERISA or the Code to substantially the same extent as if owned directly by any Unitholder;
(v) create a material risk the Company or any of its Subsidiaries will be treated as a “publicly traded partnership” within the meaning of Section 7704 of the Code and the regulations promulgated thereunder;
(vi) require any of the Silgan Investors and the A-VL Investors or any of their respective Affiliates to register as an investment adviser under the United States Investment Advisers Act of 1940, as amended; and
(vii) prior to the consummation of an Initial Public Offering, result in the Company, any newly formed direct or indirect parent thereof or any direct or indirect Subsidiary or investment holding vehicle with respect to any of the foregoing being required to file reports pursuant to Section 13(a) or Section 15(d) of the Exchange Act or being required to register a class of Securities pursuant to Section 12(g) of the Exchange Act.
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Section 7.2. Certain Permitted Transfers.
(a) Silgan Investors. Each Silgan Investor may Transfer any or all of its Securities without complying with any other provision of this Article VII, other than Section 7.1, to any of its Permitted Transferees; provided, that such Permitted Transferee shall have agreed with the Company, in a written instrument reasonably satisfactory to the Company, that it will immediately convey all Securities and all rights with respect thereto (including those arising hereunder) back to the transferring Unitholder or to another Permitted Transferee of the transferring Unitholder if it ceases to be a Permitted Transferee of the transferring Unitholder (such Transfer back to the Transferring Unitholder or another Permitted Transferee, an “Unwind Transfer”).
(b) A-VL Investors. Each A-VL Investor may Transfer any or all of its Securities without complying with any other provision of this Article VII, other than Section 7.1, as follows: (i) to any of its Permitted Transferees; provided, that such Permitted Transferee shall have agreed with the Company, in a written instrument reasonably satisfactory to the Company, to an Unwind Transfer or (ii) following the consummation of an Initial Public Offering, in an In-Kind Distribution.
(c) Investors. If and to the extent any Investor requests in connection with an actual or potential transfer of Securities by such Investor, the Company shall, and shall cause its Subsidiaries to, make members of the Company’s and its Subsidiaries’ senior management and other key employees available to meet with prospective transferees and participate in and otherwise cooperate and facilitate any due diligence process reasonably requested by prospective transferees, including setting up an online data room and providing for the prospective transferees’ reasonable inspection of the Company’s and its Subsidiaries’ offices and facilities and reasonable access to the Company’s and its Subsidiaries’ financial information and other books and records and otherwise cooperating in any reasonable and customary due diligence review of the Company and its Subsidiaries by prospective transferees, including facilitating the cooperation of the Company’s counsel and independent public accountants with any such due diligence review, all pursuant to such potential transferee having entered into a customary confidentiality agreement regarding all confidential information received in connection with such due diligence review; provided, that, subject to the last sentence of this Section 7.2(c), the A-VL Investors, collectively, may not cause the Company and its Subsidiaries to provide such information and cooperation contemplated in this Section 7.2(c) in connection with more than one Transfer per year pursuant to Section 7.2(b). With respect to any additional Transfers by the A-VL Investors pursuant to Section 7.2(b), the Company and its Subsidiaries shall provide such information and cooperation contemplated by this Section 7.2(c) as reasonably determined by the Board.
(d) Employee Investors. Subject to the terms of, and subject to complying with, any applicable stock incentive plan or Employee-Related Agreement to which a Unitholder may be a party, each Unitholder that is an Employee Investor may transfer any or all of the Securities held by him, her or it to a Permitted Transferee thereof without complying with the provisions of this Article VII, other than Section 7.1; provided, that such Permitted Transferee shall have agreed with the Company, in a written instrument reasonably satisfactory to the Company, to an Unwind Transfer; provided, further, that without the prior written consent of the Silgan Investors and the A-VL Investors, in no event shall the aggregate number of members comprising any Employee Investor Group at any time exceed three (3) at such time.
Section 7.3. Restrictions on Transfers.
(a) Silgan Investors. During the period beginning as of the Effective Date and ending on the date that is the date of completion of an Initial Public Offering, each Silgan Investor shall not Transfer any Securities to any Person, except:
(i) to Permitted Transferees pursuant to Section 7.2;
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(ii) the Silgan Investors may effect a distribution of Securities of the Company to the public shareholders of Silgan Holdings in connection with the MetalCo Spin;
(iii) pursuant to and in compliance with Section 7.4, Section 7.5, Section 7.6, or the Registration Rights Agreement;
(iv) from and after the earlier of (x) the tenth (10th) anniversary of the Effective Date and (y) the date the A-VL Investors no longer beneficially own at least 25.0% of the A-VL Investors’ Initial Stake, in connection with a Drag Along Sale pursuant to and in compliance with Section 7.4; or
(v) upon receipt of the prior written consent of the A-VL Investors.
(b) A-VL Investors. During the period beginning as of the Effective Date and ending on the date that is the date of completion of an Initial Public Offering, each A-VL Investor shall not Transfer any Securities to any Person, except:
(i) to Permitted Transferees pursuant to Section 7.2;
(ii) the A-VL Investors may effect an exchange of Units for Public MetalCo equity in accordance with Section 7.5 following a Spin-Off;
(iii) pursuant to and in compliance with Section 7.4, Section 7.5, Section 7.6, Section 7.7 or the Registration Rights Agreement; or
(iv) upon receipt of the prior written consent of the Silgan Investors.
(c) Non-Institutional Unitholders. During the period beginning as of the Effective Date and ending on the date that is twelve (12) months following the date of completion of an Initial Public Offering, each Non-Institutional Unitholder shall not Transfer any Securities to any Person, except:
(i) to Permitted Transferees pursuant to Section 7.2,
(ii) pursuant to and in compliance with Section 7.4, Article X or the Registration Rights Agreement; or
(iii) upon receipt of the prior written consent of the Silgan Investors and the A-VL Investors.
Section 7.4. Drag Along Rights.
(a) Generally. Subject to the provisions of this Section 7.4 and the Transfer Terms and Conditions, if following (x) the tenth (10th) anniversary of the Effective Date, or (y) the date the A-VL Investors no longer beneficially own at least 25.0% of the A-VL Investors’ Initial Stake, the Board or the Silgan Investors (the “Dragging Party”) wishes to give effect to a Sale Transaction (a “Drag Along Sale”), each Non-Silgan Unitholder (the “Dragged Unitholders”) shall be required to participate in such Drag Along Sale pursuant to this Section 7.4 if the Dragging Party gives a written notice (a “Drag Along Notice”) (together with copies of then-current drafts of the material transaction documents, if any, to which such Dragged Unitholder is contemplated to be a party relating to the proposed Transfer) to each Dragged Unitholder to the mailing address and/or email address set forth in the Company’s and/or its Subsidiaries’ books and records at least fifteen (15) Business Days prior to the consummation of such Drag Along Sale setting forth:
(i) the number of Unit Equivalents to be Transferred;
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(ii) the consideration to be paid for each such Unit Equivalent;
(iii) the name of the purchaser;
(iv) the date of the proposed Transfer (solely to the extent known);
(v) the actions required of each Dragged Unitholder in order to complete or facilitate such proposed Drag Along Sale (including (A) the sale of Unit Equivalents held by the Dragged Unitholders, (B) if required by the terms of such Drag Along Sale, the completion of a Class B Unit Exchange if such Non-Silgan Unitholder holds Class B Units, (C) the voting of all such Unit Equivalents (to the extent such Unit Equivalents have voting rights) in favor of any such merger, amalgamation, consolidation, business combination or sale of assets, the release of all claims against the Company, its Subsidiaries, the Board, all Unitholders (including the Dragging Parties) and/or the applicable acquiror, and the waiver of any related appraisal, quasi-appraisal, dissenters’ or similar rights, in each case, to the same extent as the Silgan Investors and (D) the execution and delivery of any merger, asset purchase, security purchase, recapitalization or other sale agreement or any indemnification or voting agreement, as applicable, in each case, to the same extent as the Silgan Investors); and
(vi) any other material terms and material conditions of the proposed Transfer (solely to the extent known);
provided, that the material transaction documents may be supplemented or updated by the Dragging Party from time to time prior to the consummation of the Drag Along Sale, and copies thereof (including any executed versions thereof) shall be promptly delivered to each Dragged Unitholder.
(b) Participation.
(i) Each Dragged Unitholder shall vote in favor of or consent to (to the extent such Unit Equivalents have voting rights), raise no objections against and not impede or delay such Drag Along Sale, and shall take all reasonable actions set forth in the Drag Along Notice or otherwise reasonably requested of such Dragged Unitholder by the Dragging Party or the Company in writing, including, subject to the Transfer Terms and Conditions, executing and delivering all documents contemplated by the Drag Along Notice to which such Dragged Unitholder is a party, including the execution and delivery of any merger, asset purchase, security purchase, recapitalization or other sale agreement or any indemnification or voting agreement, as applicable, in each case, to the same extent as the Silgan Investors. The Company shall, and shall cause its Subsidiaries to, cooperate with the Dragging Party in connection with any proposed Drag Along Sale, and the Dragging Party may, at the cost and expense of the Company, engage investment bankers, attorneys and other advisors on behalf of the Company in order to initiate and conduct a sale process for the Company.
(ii) Each Dragged Unitholder will Transfer in the Drag Along Sale an aggregate number of Unit Equivalents equal to the product of (x) the number of Unit Equivalents held by such Non-Silgan Unitholder multiplied by (y) a fraction, the numerator of which is the aggregate number of Unit Equivalents being Transferred by the Silgan Investors and the denominator of which equals the aggregate number of Unit Equivalents held by the Silgan Investors.
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(c) Default; Appointment. If any Dragged Unitholder fails to deliver any documents or instruments required to be delivered by it pursuant to this Section 7.4 at or prior to the closing of a Drag Along Sale, then (i) if (x) the Dragging Party and the Silgan Investors have complied in all material respects with their respective obligations in connection with such Drag Along Sale and (y) the consideration payable to such Dragged Unitholder in such Drag Along Sale has been deposited by or on behalf of such transferee with the Company (or a paying agent designated by the Dragging Party) for the benefit of such Dragged Unitholder without any limitation on the ability of such Dragged Unitholder to receive such consideration (other than the delivery of a customary letter of transmittal and reasonably requested tax identification materials), the Company shall cause the books and records of the Company to reflect the Transfer of such Dragged Unitholder’s Unit Equivalents to the applicable transferee, and such Unit Equivalents shall be deemed so Transferred, effective upon such deposit, whereupon such Dragged Unitholder shall have no further rights in respect of such Unit Equivalents other than the right to receive such consideration (without interest), and (ii) solely in order to secure the performance of the obligations of any such Dragged Unitholder that is a Non-Institutional Unitholder under this Section 7.4, such Non-Institutional Unitholder hereby irrevocably and unconditionally appoints the Company as its attorney-in-fact and proxy (with full power of substitution) to vote or provide written consent (to the extent such Unit Equivalents have voting rights) or take any other action with respect to such Non-Institutional Unitholder’s Unit Equivalents as required by this Section 7.4, which proxy and power of attorney is irrevocable and coupled with an interest and shall survive for the duration of this Agreement.
(d) Board and A-VL Investor Information. In the event the Silgan Investors exercise their rights under this Section 7.4 in connection with a Drag Along Sale, the Silgan Investors shall keep the Board (and to the extent the A-VL Investors are no longer entitled to designate the A-VL Designated Directors under this Agreement, the A-VL Investors) reasonably apprised of material developments in, and provide material documentation in connection with, the negotiation and consummation of the Drag Along Sale.
(e) Termination. This Section 7.4 shall terminate upon the consummation of an Initial Public Offering or upon the consummation of a Sale Transaction.
Section 7.5. Spin-Off.
(a) The Silgan Investors have the right (but not an obligation), at any time and in their sole discretion, to effect a Spin-Off; provided, that notwithstanding anything to the contrary herein, no Spin-Off may be effected prior to the second (2nd) anniversary of the Effective Date without the prior written consent of the Silgan Investors and the A-VL Investors. Promptly following the Silgan Investors’ determination to initiate a Spin-Off pursuant to the previous sentence (which shall expressly exclude the Silgan Investors or the Company conducting any due diligence, preparatory or other exploratory efforts, including engaging any third-party advisors, in connection with Silgan Investors’ consideration of whether to effect a Spin-Off), the Silgan Investors shall provide written notice of such decision to the Company and the A-VL Investors (the “Silgan Spin-Off Notice”) which shall include a statement that specifies whether such Spin-Off is a MetalCo Spin or a GrowthCo Spin; provided, that the delivery of a Silgan Spin-Off Notice shall not bind the Silgan Investors, its Affiliates or the Company to consummate any Spin-Off. Prior to any Spin-Off, the Silgan Investors will on a regular basis monitor changes in ownership of Silgan Holdings for purposes of Section 355(e) of the Code relevant to a Spin-Off, and a Spin-Off shall only be undertaken if the Spin-Off is intended to be tax-free under Section 355(e) of the Code (assuming the A-VL Investors exchange at the closing of a Spin-Off seventy-five percent (75.0%) of the A-VL Investors’ Initial Stake for interests in Public MetalCo) (the “75% Spin-Off Condition”). The A-VL Investors may waive the
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75% Spin-Off Condition, in whole or in part, in writing. Unless otherwise agreed in writing by the A-VL Investors, a “Spin-Off” shall mean (1) an UP-C Reorganization and (2), at the option of the Silgan Investors, either a MetalCo Spin or a GrowthCo Spin. In connection with any Spin-Off, Public MetalCo and Public GrowthCo shall enter into a customary tax matters agreement consistent with the terms of Exhibit E and the A-VL Investors shall have governance rights with respect to Public MetalCo consistent with the terms of Exhibit G, in each case, unless the Silgan Investors and the A-VL Investors agree otherwise. Notwithstanding anything to the contrary set forth in this Agreement, the issuance of non-publicly traded, non-economic, vote only shares of Public MetalCo, the right to exchange Units for publicly traded shares of Public MetalCo, and the terms and conditions of any Blocker Reorganization shall be subject to timing and amount limitations related to maintaining the tax-free treatment of a Spin-Off under Section 355 of the Code, in each case, as determined jointly and in good faith by the Silgan Investors and the A-VL Investors (consistent with Section 7.5(g) of this Agreement). Absent an agreement between Public MetalCo and A-VL Sponsor to the contrary, after the completion of a Spin-Off the Silgan Investors and the A-VL Investors agree to use reasonable best efforts to effect the applicable transactions (or transactions substantially similar to those) described in Exhibit J. For the avoidance of doubt, following the second anniversary of the consummation of the Spin-Off, with reasonable notice to the Company, and subject to customary limitations with respect to maintaining an “umbrella-partnership C corporation” structure, the A-VL Investors will have the right (but not the obligation) to exchange their Units in the Company (or interests in any A-VL Blocker Entity pursuant to Section 7.7) with the Company for cash, based on the then-applicable FMV per Unit, or, at Public MetalCo’s election, for Public MetalCo stock (or cash, including cash raised by Public MetalCo in a public offering of Public MetalCo stock).
(b) An “UP-C Reorganization” means (i) admitting an IPO Corporation as a member of the Company (if applicable); (ii) effecting a non-economic recapitalization of the Company (and the IPO Corporation, if applicable) consistent with a customary “umbrella-partnership C corporation” transaction structure to implement (A) a one-to-one Company Unit to IPO Corporation share ratio and (B) a structure suitable, as reasonably determined by the Silgan Investors, for the registration with the SEC and the distribution of the interests of the Company (or the IPO Corporation, if applicable), as a publicly traded company, to the shareholders of Silgan Holdings; (iii) issuing a number of non-publicly traded non-economic vote only shares of the IPO Corporation to the A-VL Investors equal to the number of Units the A-VL Investors hold after the recapitalization described in clause (ii) of this Section 7.5(b); (iv) providing existing members of the Company with the right to exchange Units (together with a corresponding number of non-publicly traded, non-economic, vote only shares of the IPO Corporation (with such vote only shares automatically surrendered and canceled upon any such exchange)) for publicly traded shares of the IPO Corporation; (v) causing the IPO Corporation to enter into a customary “tax receivable agreement” with the A-VL Investors (or an Affiliate thereof) consistent with the terms of Exhibit F; and (vi) taking such other steps as the A-VL Investors and the Silgan Investors mutually agree in good faith to be necessary or advisable to implement an “umbrella-partnership C corporation” transaction structure for an Initial Public Offering (such agreement of the A-VL Investors not to be unreasonably withheld, conditioned or delayed). For the avoidance of doubt, the Silgan Investors may effect an UP-C Reorganization consisting of the steps described in clauses (i) through (v) (and steps customarily taken to implement the foregoing) without the agreement of the A-VL Investors, and clause (vi) shall not be construed to condition any such step on such agreement.
(c) A “MetalCo Spin” means (i) a distribution of the IPO Corporation to the public shareholders of Silgan Holdings in a transaction that is intended to be tax-free and governed by Section 355 of the Code to Silgan Holdings and its public shareholders and (ii) unless the A-VL Investors elect not to undertake a Blocker Reorganization pursuant to Section 7.5(g), a Blocker Reorganization, such that, following such distribution and Blocker Reorganization, the A-VL Blocked Feeder and the shareholders of Silgan Holdings are the holders of the equity interests in the resulting IPO Corporation.
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(d) A “GrowthCo Spin” means (a)(i) the formation of a Delaware corporation and direct wholly-owned subsidiary of Silgan Holdings (“GrowthCo”), (ii) a contribution of all of the assets and liabilities of Silgan Holdings (other than its equity interests of GrowthCo, the Units and any equity interests of subsidiaries of Silgan Holdings whose sole asset is a direct or indirect interest in the Units) to GrowthCo, (iii) a distribution by Silgan Holdings of equity interests of GrowthCo to the public shareholders of Silgan Holdings in a transaction that is intended to be tax-free under Section 355 of the Code to Silgan Holdings and its public shareholders and (b) unless the A-VL Investors elect not to undertake a Blocker Reorganization pursuant to Section 7.5(g), any Blocker Mergers, such that, following such distribution and any Blocker Mergers, the A-VL Blocked Feeder and the shareholders of Silgan Holdings are the holders of the equity interests in the resulting IPO Corporation. In the event that the Silgan Investors elect to pursue the GrowthCo Spin, as a condition for the closing of the GrowthCo Spin, Silgan Holdings will, to the extent required by applicable law or the rules of the applicable securities exchange, obtain the approval of its public shareholders for the issuance of publicly traded shares of Public MetalCo in connection with (1) any Blocker Merger (including if any such Blocker Merger will occur after the closing of the Spin-Off as a result of limitations imposed by Section 355(e) of the Code); (2) the issuance of non-publicly traded, non-economic, vote only shares of Public MetalCo to the A-VL Investors; and (3) the right of the A-VL Investors to exchange Units of the Company (and non-publicly traded, non-economic, vote only shares of Public MetalCo) for publicly traded shares of Public MetalCo (it being understood and agreed that any such issuance of non-publicly traded, non-economic, vote only shares of Public MetalCo and exchange of Units for publicly traded shares of Public MetalCo will be subject to the 75% Spin-Off Condition); provided, that if any such approval is so required and has not been obtained, the Silgan Investors shall not consummate the GrowthCo Spin without the prior written consent of the A-VL Investors.
(e) In the event a Spin-Off is consummated, and subject to timing and amount limitations related to maintaining the tax-free treatment of a Spin-Off under Section 355 of the Code, interests in the Company held by the A-VL Investors’ Units (together with a corresponding number of non-publicly traded, non-economic, vote only shares of the IPO Corporation) shall be exchangeable for publicly traded shares of Public MetalCo on a one-for-one basis (with such vote only shares automatically surrendered and cancelled upon any such exchange). For the avoidance of doubt, following the second anniversary of the consummation of the Spin-Off, with reasonable notice to the Company, and subject to customary limitations with respect to maintaining an “umbrella-partnership C corporation” structure, the A-VL Investors will have the right (but not the obligation) to exchange their Units in the Company (or interests in any A-VL Blocker Entity pursuant to Section 7.7) with the Company for cash, based on the then-applicable FMV per Unit, or, at Public MetalCo’s election, for Public MetalCo stock (or cash, including cash raised by Public MetalCo in a public offering of Public MetalCo stock).
(f) For the avoidance of doubt, any Spin-Off shall be in compliance with this Section 7.5, and, notwithstanding anything to the contrary in this Article VII, no other provision of this Article VII (including Section 7.1(a)(iii), Section 7.1(d) and Section 7.1(f)) shall restrict, delay or impose any condition (including any joinder requirement) on any Transfer, issuance, exchange, recapitalization or distribution of Securities effected in connection with a Spin-Off in accordance with this Section 7.5 or pursuant to Section 7.5(e).
(g) The A-VL Investors shall, and shall cause their Affiliates (including the A-VL Blocker Entities and the A-VL Blocked Feeder) to, reasonably cooperate with the Silgan Investors, Silgan Holdings and the Company in connection with any Spin-Off, including by executing and delivering such agreements, consents and other documents, providing such information (including information regarding the A-VL Blocker Entities and the A-VL Blocked Feeder required for any registration statement or other filing), and taking such other actions, in each case, as the Silgan Investors may reasonably request in good faith to implement the transactions described in this Section 7.5 and Section 7.7, at the Company’s cost and expense in accordance with Section 7.5(i). The A-VL Investors shall have no consent or approval right with
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respect to a Spin-Off, subject to the 75% Spin-Off Condition set forth in Section 7.5(a). The A-VL Investors may elect not to undertake a Blocker Reorganization by providing written notice to the Company within ten (10) Business Days after the receipt of the Silgan Spin-Off Notice. Nothing in this Section 7.5(g) shall (x) require the A-VL Investors to incur any out-of-pocket cost or expense not reimbursed by the Company, (y) reduce the amount or change the form of consideration or economic rights the A-VL Investors are entitled to receive under this Agreement or (z) require the A-VL Investors to consent to any amendment of this Agreement that is disproportionately adverse to the A-VL Investors.
(h) This Section 7.5 (other than Section 7.5(g) and Section 7.5(i), which shall survive) shall terminate upon the consummation of an Initial Public Offering or upon the consummation of a Sale Transaction.
(i) Notwithstanding anything herein to the contrary, the Company shall bear all reasonable and documented out-of-pocket third party legal, accounting, advisory and other expenses directly related to a Spin-Off, in each case reasonably required to effectuate a Spin-Off (but not operational related expenses such as branding, re-branding and marketing expenses related to GrowthCo) in connection with a Spin-Off, regardless of whether it is structured as a spin-off of the Company or of GrowthCo, including without limitation, the formation of GrowthCo and the distribution of its equity to the shareholders of Silgan Holdings.
(j)
(i) A-VL Sponsor and each A-VL Investor shall not, and shall ensure that none of their Affiliates, acquire, within the meaning of Section 355(e) of the Code, any stock or other equity securities of Silgan Holdings prior to the Spin-Off (other than, for the avoidance of doubt, any rights under this Agreement); and
(ii) Each Silgan Investor, A-VL Sponsor and each A-VL Investor (and their respective Affiliates) shall cooperate with respect to any Sensitive Transactions (other than any Sensitive Transaction permitted pursuant to this Agreement) and any other actions or discussions that could reasonably be expected to have an adverse impact on the tax-free treatment of the Spin-Off (this clause (ii), the “Pre-Spin-Off Investor Restrictions”). Each Silgan Investor, A-VL Sponsor and each A-VL Investor acknowledges and agrees that such cooperation should be undertaken in a manner that preserves the tax-free treatment of the Spin-Off under Section 355 of the Code. In the event a Spin-Off is not initiated or consummated within a reasonable period of time after a Spin-Off Announcement, the Silgan Investors and the A-VL Investors will reasonably cooperate and consult with one another in good faith regarding the termination of the Pre-Spin-Off Investor Restrictions (consistent with Section 7.5(g)).
(k) In the event the 75% Spin-Off Condition is not satisfied as reasonably determined in good faith by the Silgan Investors, the Silgan Investors shall have the right (but not the obligation) by written notice (a “Pre-Spin Purchase Notice”) to the Company and the A-VL Investors, at the Silgan Investor’s option, to either (i) only if a purchase by the Silgan Investor of less than 5% of the Class A Voting Units outstanding after the issuance would result in the 75% Spin-Off Condition being satisfied, purchase the minimum amount of additional Units from the Company that would result in the 75% Spin-Off Condition being satisfied immediately prior to the Spin-Off (the “Top-Up Units”) in exchange for a purchase price per Unit equal to the greater of (x) FMV per Unit or (y) the Conditional Liquidity Right Purchase Price (as if a Conditional Liquidity Notice was deemed delivered on the date of the Pre-Spin Purchase Notice), paid in cash or (ii) offer to purchase, whether directly or through any Affiliate of the Silgan Investors or through the Company, from the A-VL Investors, on an aggregate basis, the minimum amount of Units held by such A-VL Investors that would result in the 75% Spin-Off Condition being
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satisfied immediately prior to the Spin-Off, in exchange for a purchase price in cash to be mutually agreed by the Silgan Investors and the A-VL Investors in good faith and on such other terms mutually agreed by such parties in good faith, it being understood and agreed that, notwithstanding anything herein to the contrary, the A-VL Investors shall not have any obligation to agree to any such transaction pursuant to this clause (ii). The consummation of any transaction pursuant to the foregoing sentence (a “Pre-Spin Purchase”) shall take place prior to the Spin-Off and, in the case of a transaction pursuant to clause (i) of the foregoing sentence, no more than three (3) days prior to the Spin-Off.
Section 7.6. A-VL Investors Spin-Off Request; Silgan Investors Call Right.
(a) On or prior to the date that is forty-two (42) months after the Effective Date and each annual anniversary of such date thereafter, the A-VL Investors shall have the right to, but shall not be obligated to, deliver to the Silgan Investors a written notice (a “Spin-Off Request”) requesting that the Silgan Investors initiate a Spin-Off and indicating that if the Silgan Investors do not initiate a Spin-Off then the A-VL Investors intend to exercise the Conditional Liquidity Right during the next Conditional Liquidity Window, which notice shall specify the number of Units with respect to which the A-VL Investors intend to exercise the Conditional Liquidity Right, being at least twenty percent (20%) and up to thirty-three and a third percent (331⁄3%) of the A-VL Investors’ Initial Stake (together with any additional Units acquired after the Effective Date); provided, that if the A-VL Investors ever hold less than twenty percent (20%) of the A-VL Investors’ Initial Stake, the A-VL Investors shall be permitted to sell pursuant to the Conditional Liquidity Right all of such actual holdings percentage of the A-VL Investors’ Initial Stake, together with any additional Units acquired after the Effective Date. A Spin-Off Request shall not constitute an exercise of the Conditional Liquidity Right by the A-VL Investors nor an obligation on the part of the A-VL Investors to exercise the Conditional Liquidity Right, but if the A-VL Investors do not deliver a timely Spin-Off Request, the A-VL Investors may not exercise the Conditional Liquidity Right during the next Conditional Liquidity Window. If the A-VL Investors exercise the Conditional Liquidity Right during the next Conditional Liquidity Window, such exercise shall be for the number of Units specified in a Spin-Off Request. For the avoidance of doubt, nothing herein shall obligate the Silgan Investors to initiate a Spin-Off in response to a Spin-Off Request or limit the Silgan Investors’ right to initiate the Spin-Off at any time in accordance with Section 7.5.
(b) Subject to Section 7.5 and this Section 7.6, including with respect to the Silgan Investors’ rights with respect to a Spin-Off, prior to the consummation of a Spin-Off and following the four (4) year anniversary of the Effective Date, the A-VL Investors shall have the right, but not the obligation, in their sole discretion (the “Conditional Liquidity Right”), exercisable during the 30-day period (the “Conditional Liquidity Window”) following the four (4) year anniversary of the Effective Date and each annual anniversary thereafter, to require the Silgan Investors to purchase (the “Conditional Liquidity Transaction”) for cash the number of Units specified in the corresponding Spin-Off Request; provided, that the Conditional Liquidity Right shall expire with respect to such anniversary of the Effective Date if not exercised at the end of such 30-day period. The A-VL Investors shall exercise their Conditional Liquidity Right by providing a written notice to the Silgan Investors (the “Conditional Liquidity Notice”). Subject to Section 7.5 and this Section 7.6, including with respect to the Silgan Investors’ rights with respect to a Spin-Off, within 30 days of receipt of a Conditional Liquidity Notice, the Silgan Investors must by written notice (the “Conditional Liquidity Response Notice”) to the A-VL Investors specify, in their sole discretion, the amount of Units of the A-VL Investors which the Silgan Investors agree to purchase, which amount must be not less than the amount specified in the corresponding Spin-Off Request and not more than 150% of the amount specified in the corresponding Spin-Off Request (the “Election”).
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(c) If (a) the A-VL Investors timely deliver a Spin-Off Request and then deliver a Conditional Liquidity Notice during the next Conditional Liquidity Window and (b) within ninety (90) days following the delivery of the Conditional Liquidity Notice Silgan Holdings makes a public announcement that it is evaluating or pursuing a Spin-Off transaction (a “Spin-Off Announcement”), then the A-VL Investors’ exercise of the Conditional Liquidity Right shall be suspended until a date that is six (6) months following the date of the Conditional Liquidity Notice (the “Spin-Off Period”) for the Silgan Investors to consummate a Spin-Off. If a Spin-Off is consummated prior to the expiration of the Spin-Off Period, the Silgan Investors’ obligation to complete such Conditional Liquidity Transaction shall automatically terminate without any further action of any party with respect to the Units subject to such Conditional Liquidity Notice. If a Spin-Off is not consummated prior to the expiration of a Spin-Off Period, the Silgan Investors shall be obligated to complete the Conditional Liquidity Transaction and purchase the Units specified in the Election for cash, such price as determined by Section 7.6(g), within five (5) Business Days following the expiration of a Spin-Off Period (or a later date as provided for below in connection with mandatory regulatory review or approval requirements). If the Silgan Investors do not make a timely Spin-Off Announcement, the Silgan Investors shall be obligated to complete the Conditional Liquidity Transaction and purchase the Units specified in the Election for cash, such price as determined by Section 7.6(g), within five (5) Business Days following the expiration of the ninety (90) day period following the delivery of the Conditional Liquidity Notice (or a later date as provided for below in connection with mandatory regulatory review or approval requirements).
(d) If (i) the A-VL Investors deliver a Spin-Off Request, (ii) following which the Silgan Investors initiate a Spin-Off, (iii) the A-VL Investors do not deliver a Conditional Liquidity Notice during the next Conditional Liquidity Window, and (iv) subsequently the Silgan Investors, in their sole discretion, determine not to consummate a Spin-Off, then the A-VL Investors shall promptly reimburse the Company for all reasonable and documented out-of-pocket third party costs and expenses incurred in connection with a Spin-Off process. For the avoidance of doubt, the Silgan Investors’ determination not to consummate a Spin-Off shall not deprive the Silgan Investors of the right to initiate a Spin-Off at any time thereafter in accordance with Section 7.5.
(e) Prior to the consummation of a Spin-Off, the Silgan Investors shall have the right, but not the obligation, in their sole discretion (the “Call Right”), exercisable at any time following the ten (10) year anniversary of the Effective Date or, if the A-VL Investors no longer beneficially own at least 25% of the A-VL Investors’ Initial Stake, at any time, to purchase for cash, such price as determined by Section 7.6(g), one hundred percent (100%) of the Units then held by the A-VL Investors. The Silgan Investors shall exercise their Call Right by providing a written notice to the A-VL Investors (the “Silgan Call Notice”).
(f) For the avoidance of doubt, the Conditional Liquidity Right and Call Right shall automatically terminate without any further action of any party upon the consummation (but for the avoidance of doubt, not upon the commencement) of a Spin-Off.
(g) The cash purchase price per Unit under the Conditional Liquidity Right or Call Right, as applicable (the “Conditional Liquidity Right Purchase Price”), shall be based on an implied equity value equal to the enterprise value of the Company and its Subsidiaries, derived by applying an EBITDA multiple of 8.25x to the trailing twelve (12) months of EBITDA as of the last day of the most recently completed fiscal quarter preceding the date of the Conditional Liquidity Notice or Silgan Call Notice, as applicable, less Net Debt (the “Spin-Off Implied Equity Value”). The Spin-Off Implied Equity Value shall be treated as the cash purchase price for 100% of the outstanding Units in a hypothetical sale and the net proceeds shall be distributed to the holders of Units in accordance with Section 6.3 hereof. For the avoidance of doubt, (i) outstanding Units for purposes of the Spin-Off Implied Equity Value allocation will include all Class B Units (or other equity or equity-based awards issued under the Equity Incentive Plan) that have an In-the-Money-Value at such time as if they were vested as of the date of delivery of the Conditional Liquidity Notice or Silgan Call Notice and (ii) the Conditional Liquidity Right Purchase Price shall be the amount per Unit that the A-VL Investors would receive in such hypothetical sale and distribution.
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(h) Upon the consummation of (x) a Sale Transaction or (y) a Sale Transaction with respect to Silgan Holdings (with the definition of “Sale Transaction” being applied mutatis mutandis with respect to the Silgan Investors and their Securities and without regard to the last sentence of such definition) (a “Silgan Holdings Change of Control”), in each case, following which the A-VL Investors continue to hold any Units (it being understood that the Silgan Investors or the Company, as applicable, must provide the A-VL Investors at least forty-five (45) days’ prior written notice of the closing date of such Sale Transaction), the terms of the Conditional Liquidity Right and the Call Right (each as described above) must be expressly assumed by the party which acquires the Silgan Investors or the Company, as applicable; provided, that, the Silgan Stock Consideration Option (as defined below) will not apply.
(i) Subject to obtaining any applicable regulatory approvals or clearances and any suspension of the Conditional Liquidity Right set forth in Section 7.6(c), the Silgan Investors shall purchase the Units they elect to purchase pursuant to a Conditional Liquidity Response Notice or Silgan Call Notice, as applicable, for cash within ninety (90) days of delivery of the Conditional Liquidity Notice or Silgan Call Notice, as applicable (or, if any applicable waiting period under the Hart-Scott-Rodino Antitrust Improvements Act or any other mandatory regulatory review or approval requirement to the extent applicable to such purchase has not expired or been obtained prior to the expiration of such ninety (90) day period, within five (5) Business Days after the expiration or termination of all such waiting periods and the receipt of all such mandatory regulatory approvals.) Each of the Silgan Investors and the A-VL Investors shall, and shall cause their respective Affiliates to, use their respective reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary, proper or advisable under applicable Law to consummate such purchase at the earliest reasonably practicable date; provided, that notwithstanding anything to the contrary in this Agreement, in no event shall the Silgan Investors or the A-VL Investors be obligated to, and no such party shall be required to cause any of its Affiliates to, in each case in connection with obtaining any approval, consent, clearance or termination of any waiting period from any governmental entity under any applicable Law with respect to such purchase, (x) sell, license, assign, transfer, divest, hold separate or otherwise dispose of, or terminate, any assets, licenses, operations, rights, product lines, businesses, or interests therein of the party or its Affiliates, (y) agree to any other restriction on, or impose any condition with respect to, the ownership, operation, or conduct of the business of the party or its Affiliates, including any conduct, behavioral, or “firewall” remedy, or (z) litigate, defend, contest, or otherwise oppose (or agree to litigate, defend, contest, or otherwise oppose) any administrative or judicial action or proceeding, including any proceeding initiated by a governmental entity seeking to enjoin, prevent, restrain or otherwise prohibit consummation of such purchase.
(j) Notwithstanding the foregoing requirements of this Section 7.6 to make the purchase for cash, the Silgan Investors will have the option, at their discretion, to fulfill all or any portion of any payment obligation with respect to a Conditional Liquidity Right or Call Right, as applicable, by issuing to the A-VL Investors (or their Affiliated designee) an amount of Silgan Holdings common stock valued at the volume-weighted average price of Silgan Holdings’ common stock for the thirty (30) consecutive trading days, as published by the New York Stock Exchange or any securities exchange that Silgan Holdings is then listed on, immediately prior to the delivery by the A-VL Investors of the Conditional Liquidity Notice or Silgan Call Notice, as applicable, with a 2.0% discount applied to the value of any such stock issued in connection with such Conditional Liquidity Notice or Silgan Call Notice in excess of 3% of then-outstanding Silgan Investors’ common stock (the “Silgan Stock Consideration Option”); provided, that in no event shall the Silgan Investors elect to issue a number of shares of Silgan Holdings’ common stock exceeding 4.9% of then-outstanding Silgan Holdings’ common stock; provided, further, that, such 4.9% maximum shall not impact the Silgan Investors’ obligation to fulfill (by paying cash) any portion of any Conditional Liquidity Right or Call Right.
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(k) Certain Definitions used in this Section 7.6 have the meanings set forth below.
(i) “Cash Amounts” means, of any Person and as of any time, all cash and cash equivalents (that are immediately convertible into cash), whether held in or as bank and other depositary accounts and safe deposit boxes, demand accounts, certificates of deposit, time deposits, negotiable instruments, securities and brokerage accounts, in each case of such Person as of such time; provided, that “Cash Amounts” shall, without duplication:
(A) be reduced by the total amount of outstanding checks and drafts issued but not yet debited against the applicable amount;
(B) exclude cash posted to support letters of credit, credit card receivables, security deposits, performance bonds or otherwise held as collateral, as a security or other deposit (including real estate lease deposits and deposits in connection with any vehicle production) or cash held in escrow or any other cash balances that are restricted;
(C) be reduced by the amount of any liabilities and expenses (included taxes) that would be incurred or payable to repatriate to the United States all cash or cash equivalents held by Silgan White Cap (Shanghai) Co.., Ltd. (including any successor thereof) (I) in excess of $11,000,000 and (II) up to $50,000,000, taking into account any applicable income tax treaty reduction to withholding tax rates;
(D) exclude any insurance or other proceeds received with respect to any casualty, condemnation or litigation to the extent the corresponding liability has not been discharged if such liability has not been included in Debt or as a liability in Net Working Capital;
(ii) (e) exclude any amounts collected by the Company or its Subsidiaries for the account of any third-party financing provider in respect of receivables sold under a factoring arrangement that have not been remitted to such third-party financing provider as of such time;
(iii) be increased by the total amount of outstanding checks and drafts received by or deposited for the account of such Person but not yet cleared.
(iv) “Company Benefit Plan” means each “employee benefit plan” (as such term is defined in Section 3(3) of ERISA, whether or not subject to ERISA) and each other benefit or compensation plan, policy, agreement, program, practice, or arrangement, including each retirement, supplemental retirement, pension, savings, profit sharing, equity or equity-based, deferred compensation, bonus, incentive compensation, sales commission, severance, employment, individual consulting, fringe benefit, vacation, paid time off, disability, death benefit, tax gross-up or indemnification, flexible spending, tuition reimbursement, medical, dental, life or other health and welfare, retiree medical or life insurance plan, policy, agreement, program, practice, or arrangement, in each case, (i) which is sponsored or maintained by the Company or its Subsidiaries or to which the Company or any of its Subsidiaries are obligated to contribute, (ii) to which any of the Company or its Subsidiaries is a party, (iii) in which any employee or service provider of the Company or its Subsidiaries participates related to their services provided to the Company or its Subsidiaries, or (iv) with respect to which the Company or its Subsidiaries has, or could reasonably be expected to have, any obligation or liability (including contingent liability).
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(v) “Debt” means, of any Person and as of any time, the aggregate amount of the following (including all accrued and unpaid interest and all prepayment penalties, breakage fees and exit fees that would be incurred in connection with the repayment thereof at such time), without duplication: (a) the outstanding principal amount of any indebtedness for borrowed money (other than trade payables arising in the ordinary course of business); (b) all other obligations evidenced by bonds, debentures or notes; (c) all capital or finance lease obligations that are classified as a capital or finance lease in the financial statements of the Company; (d) all direct obligations under letters of credit, performance bonds, surety bonds, bankers’ acceptances or similar facilities, in each case solely to the extent drawn; (e) the deferred purchase price related to the previous acquisition of any businesses (including any “earn-outs” but excluding current trade payables arising in the ordinary course of business); (f) liabilities under interest rate, currency rate or commodity price protection, hedging, derivative or swap, collar, cap or similar arrangement, in each case net of any related assets, determined as if such arrangements were terminated at the applicable time of determination (for the avoidance of doubt, this clause (f) may be a positive or negative amount and reduce Debt); (g) in respect solely of any pension plans contributed by the Silgan Investors, any unfunded or underfunded Liabilities (including with respect to any ERISA Affiliate) with respect to any Company Benefit Plan providing deferred compensation, retirement, pension, post-termination welfare or other long-term retirement benefits other than with respect to any Multiemployer Plan (as such term is defined in ERISA) or the Silgan Containers Supplemental Executive Retirement Plan (with the required funding level for tax-qualified defined benefit plans measured at the level required for certification under Section 4041(b)(2)(A)(i) of ERISA), including, in each case, the employer’s portion of any social security, Medicare, unemployment or other employment, withholding or other payroll taxes and employer contributions to retirement plans associated with the foregoing amounts ; (h) any indebtedness of a type that is referred to in clauses (a) through (g) above and which is guaranteed by such Person or for which such Person otherwise provides collateral or credit support, in each case, of such Person as of such time; (i) the Net Working Capital Delta (which amount may be positive or negative); and (j) any unfunded capex related to the annualized effect of any pro-forma synergies included in EBITDA for the applicable period.
(vi) “EBITDA” means net income before interest, taxes, depreciation and amortization. Notwithstanding anything to the contrary, the following adjustments shall be made in determining EBITDA for the applicable period, in each case without duplication. All determinations shall be made in accordance with GAAP. For the avoidance of doubt, to the extent any expense or charge is not reflected in net income as determined in accordance with GAAP for the applicable period, such expense or charge shall not be deducted in determining EBITDA for such period.
(A) Add back all interest, depreciation and amortization expense, including amortization of acquired intangible assets to the extent not already excluded in determining EBITDA. Interest expense and other fees related to factoring and supply chain financing shall not be added back.
(B) Add back all non-cash expenses related to the pension plans of Silgan Holdings and its Subsidiaries, including service cost, interest cost, expected return on plan assets, amortization of actuarial gains and losses, amortization of prior service cost, and settlement, curtailment and special termination benefit charges. For avoidance of doubt, all costs related to the EU unfunded pension plan shall be added back.
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(C) Add back any and all provision for income taxes, including federal, state, local and foreign income taxes, franchise, capital and branch profits taxes imposed in lieu of or measured by income or capital, and withholding taxes, together with any penalties and interest thereon, and any distributions or payments made in respect of taxes to any Member or under any tax sharing, tax allocation or similar arrangement; and deduct any income tax benefit, in each case to the extent reflected in the determination of EBITDA.
(D) Reduce EBITDA by all cash contributions made in the ordinary course in respect of the Trivium pension plans during such calculation period, and add back all pension expense of the Trivium plans otherwise recognized in the income statement, such that EBITDA is burdened by the cash cost of those plans and by nothing else.
(E) Add back non-cash amortization of sign-on bonuses paid in connection with customer supply contracts.
(F) Add back rationalization charges, and deduct rationalization credits. Rationalization charges and credits include any and all costs, charges, losses, accruals, reserves, write-offs, write-downs and credits of any kind arising from the evaluation or pursuit of cost reduction opportunities across any segment, including plant closings, downsizings, footprint rationalizations, network and production optimization, facility and line consolidations, relocations and exits, the relocation of volumes between facilities, severance and related employee costs, the write-off of net assets used to service any market, geography, product line or customer relationship that is exited or curtailed, multiemployer plan withdrawal liability and accretion thereon, and labor disputes and related consultation processes; provided that any recovery, credit, indemnity or insurance proceeds recognized in respect of any of the foregoing shall be deducted in the period in which recognized.
(G) Adds back all other non-recurring, one-time and out-of-period expense items, and reduce EBITDA by all other non-recurring, one-time, and out-of-period income items as reasonably determined by the Board of Directors.
(H) Remove gains and losses on the other disposition of fixed assets.
(I) Include impact of Trivium’s metal lag adjustment, consistent with past practice used on the signing date because of the FIFO inventory valuation method.
(J) Exclude one-time transaction, separation and financing fees and expenses of any kind incurred in connection with acquisitions or dispositions or Company financings, net of reimbursements that are recorded as income in the income statement.
(K) Exclude all unrealized and non-operational gains and losses attributable to currency and exchange rate movements.
(L) Exclude all long-term management incentive, retention, equity-based, phantom and profits interest compensation, whether cash or non-cash.
(M) Give pro forma effect to any acquisition, merger or divestiture completed during the applicable period as if the same had occurred on the first day of such period, including by adding the EBITDA of any acquired business, and excluding the EBITDA of any divested business, in each case determined on the same basis as set forth herein.
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(N) Include the annualized effect of any synergies realized during the applicable period, as if such synergies had been realized on the first day of such period, to the extent not already so reflected.
(O) Reduce EBITDA for internal employee salaries and wages that are capitalized to fixed assets.
(P) Normalize supplier contract incentive income to equal the five-year trailing average of supplier contract incentive income.
(vii) “ERISA Affiliate” means any trade or business (whether or not incorporated) which together with the Company or its Subsidiaries would be treated as a single employer under Section 414 of the Code or Section 4001 of ERISA.
(viii) “GAAP” means generally accepted accounting principles, consistently applied, in the United States.
(ix) “Liabilities” means all debts, liabilities, guarantees, assurances, commitments and obligations of any kind, whether fixed, contingent or absolute, asserted or unasserted, matured or unmatured, liquidated or unliquidated, accrued or not accrued, known or unknown, due or to become due, whenever or however arising (including whether arising out of any contract or tort based on negligence or strict liability or arising under any law) and whether or not required by GAAP to be set forth in financial statements (including the footnotes thereto) of any Person.
(x) “Net Debt” means, as of any date of determination, an amount equal to (a) Debt as of such date, minus (b) Cash Amounts as of such date.
(xi) “Net Working Capital” means, as of a specific time, the current assets of the Company minus the current liabilities of the Company, in each case, calculated in accordance with GAAP. For the avoidance of doubt, Net Working Capital shall exclude Cash Amounts, Debt, intercompany balances, income tax related balances and all operating leases.
(xii) “Net Working Capital Delta” means an amount equal to (i)(a) the aggregate sum of the Net Working Capital as of 11:59 p.m. as of the last day of each month for the preceding 12 months, divided by (b) 12, minus (ii) Net Working Capital as of 11:59 p.m. as of the last day of the immediately preceding month.
Section 7.7. A-VL Blocker Entities.
(a) Notwithstanding anything to the contrary in this Agreement, if any direct or indirect partners, members or other investors of any of the A-VL Investors indirectly hold any portion of their respective interests in the Company or its Subsidiaries (including Units) through a structure involving one or more A-VL Blocker Entities, then, any Transfer by the A-VL Investors (including in connection with a Transfer pursuant to Section 7.4 or Section 7.6 or other transactions), Sale Transaction, Spin-Off (pursuant to Section 7.7(b)) or other disposition by the A-VL Investors of their Units, at the request of any A-VL Investor, may be structured in a manner that ensures each of the following are satisfied: (i) the A-VL Blocker Shares of the relevant A-VL Blocker Entities shall be Transferred in lieu of a Transfer of the Units
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directly or indirectly held by the A-VL Investors and (ii) the price and form of consideration payable for such A-VL Blocker Shares is the same as the price and form of consideration that would have been payable had the A-VL Investors sold the relevant Units directly in such transaction; provided, that (A) the aggregate consideration payable for such A-VL Blocker Shares shall be (x) reduced by the sum of any unpaid Taxes of such A-VL Blocker Entity due and payable or attributable to any taxable period (or portion thereof) ending on or prior to the closing of such Transfer (other than deferred Tax liabilities attributable to unrealized appreciation in the Units) and any liabilities of such A-VL Blocker Entity unrelated to its direct or indirect ownership of Units and (y) increased by the amount of any cash assets or cash equivalents of such A-VL Blocker Entity, and (B) clause (ii) shall not apply to any consideration payable under any tax receivable agreement. In any Transfer of Units in accordance with this Agreement (including in connection with a Transfer pursuant to Section 7.4 or Section 7.6 or other transactions), the holders of A-VL Blocker Shares may transfer or exchange such A-VL Blocker Shares (including by way of a merger, consolidation or reorganization of the relevant A-VL Blocker Entities that directly or indirectly own Units or any other transaction structure that is agreed upon by the A-VL Investors and the proposed transferee) on the same basis as if the A-VL Investors had transferred or exchanged such Units directly, subject in each case to this Section 7.7. For the avoidance of doubt, the A-VL Investors’ right under this Section 7.7(a) shall survive any Spin-Off or Initial Public Offering.
(b) If (1) the Silgan Investors initiate a Spin-Off, (2) provide a Silgan Spin-Off Notice and (3) any direct or indirect partners, members or other investors of any of the A-VL Investors indirectly hold any portion of their respective interests in the Company or its Subsidiaries (including Units) through a structure involving one or more A-VL Blocker Entities, then each such A-VL Blocker Entity will, subject to the A-VL Investors’ right to elect not to undertake a Blocker Reorganization pursuant to Section 7.5(g), (a) be contributed, merged or transferred to or into the IPO Corporation in a transaction that is intended to qualify as non-taxable for U.S. federal income tax purposes (except to the extent of cash in lieu of fractional shares received by a direct or indirect equity holder of such A-VL Blocker Entity) (the transaction described in clause (a), a “Blocker Merger”), (b) act as the IPO Corporation, (c) become a subsidiary of the IPO Corporation or (d) otherwise participate in a manner so that the transaction is non-taxable for U.S. federal income tax purposes (except to the extent of cash in lieu of fractional shares received by a direct or indirect equity holder of such A-VL Blocker Entity) to the A-VL Blocked Feeder and any such A-VL Blocker Entity is not subject to a level of corporate tax for U.S. federal income tax purposes on the Spin-Off, in each case, pursuant to clause (vi) of the definition of “UP-C Reorganization” (any of clauses (a) through (d), a “Blocker Reorganization”); provided, that any Blocker Reorganization shall be subject to timing and amount limitations related to maintaining the tax-free treatment of a Spin-Off under Section 355 of the Code pursuant to Section 7.5(a). Any Blocker Reorganization shall be intended to be tax-free (except to the extent of cash in lieu of fractional shares) to the A-VL Blocked Feeder, the A-VL Blocker Entities, Public MetalCo and the shareholders of Public MetalCo, and no Blocker Reorganization shall be structured or effected in a manner that would reasonably be expected to (i) adversely affect the qualification of the Spin-Off under Section 355 of the Code or the intended tax-free treatment of the Spin-Off to Silgan Holdings and its shareholders or (ii) prevent or materially delay the consummation of the Spin-Off, in each case, as reasonably determined jointly and in good faith by the Silgan Investors and the A-VL Investors. Notwithstanding anything to the contrary in this Agreement (including the definition of the MetalCo Spin and the GrowthCo Spin), the consummation of a Blocker Reorganization shall not be a condition to, and shall not prevent, delay or otherwise affect, the consummation of the Spin-Off, and if a Blocker Reorganization has not been consummated at or prior to the closing of a Spin-Off, the A-VL Investors and the Company shall instead consummate the Blocker Reorganization as promptly as reasonably practicable following such closing, to the extent permitted by the limitations described in this Section 7.7(b).
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(c) Each A-VL Blocker Entity shall at all times be maintained solely to hold, directly or indirectly, Units (and cash and cash equivalents) and shall have no business, operations or employees and no assets or liabilities other than Units, cash and cash equivalents, taxes and obligations under its organizational documents and this Agreement; provided, however, the foregoing shall not limit any A-VL Blocker Entity’s ability to directly or indirectly incur indebtedness so long as such indebtedness has been discharged prior to any Blocker Reorganization. In connection with any Transfer of A-VL Blocker Shares pursuant to this Section 7.7, such relevant A-VL Blocker Entities shall make customary representations and warranties to the transferee with respect to organization, authority, non-contravention, capitalization, title to the A-VL Blocker Shares and (indirectly) the Units free and clear of Encumbrances. As of immediately prior to the closing of the Spin-Off or a Blocker Reorganization, as applicable, each A-VL Blocker Entity will have cash or cash equivalents (including such cash received pursuant to the penultimate sentence of Section 6.3(c)) at least equal to the good faith estimate of the accrued and unpaid income tax liabilities of such A-VL Blocker Entity.
ARTICLE VIII
REGISTRATION RIGHTS
Section 8.1. Registration Rights. The Company, the A-VL Investors and the Silgan Investors will negotiate in good faith, and will enter into a customary registration rights agreement in connection with an Initial Public Offering, which registration rights agreement will include the terms set forth on Exhibit I, and which registration rights agreement shall be in form and substance agreed by the A-VL Investors and the Silgan Investors (the “Registration Rights Agreement”). The Company will deliver the Registration Rights Agreement to the Unitholders, and the Unitholders will enter into and agree to be subject to the relevant terms of the Registration Rights Agreement in accordance with Exhibit I.
ARTICLE IX
PREEMPTIVE RIGHTS
Section 9.1. Right of Participation.
(a) Generally. Subject to Section 4.3, not less than fifteen (15) Business Days prior to the consummation of any Post-Closing Issuance, a written notice (an “Issuance Notice”) shall be furnished by the Company to each Eligible Preemptive Rights Unitholder, which Issuance Notice shall include:
(i) the Participation Securities to be issued;
(ii) the price or range of prices for, and material terms of, the Participation Securities; and
(iii) the date of the Participation Closing (if known).
(b) Exercise.
(i) Each Eligible Preemptive Rights Unitholder may elect to purchase Participation Securities by delivering to the Company, within seven (7) Business Days after the date of the Issuance Notice, an irrevocable written notice (a “Participation Notice” and such Eligible Preemptive Rights Unitholder, a “Participation Unitholder”), specifying the Participation Securities that such Participation Unitholder desires to purchase (not to exceed its Participation Portion). Each Participation Unitholder shall be entitled to purchase at the Participation Closing the Participation Securities specified in its Participation Notice (not to exceed its Participation Portion) at the same price as all other purchasers of the same type and class (other than, in the case of a Participation Unitholder that is a Non-Institutional Unitholder, with respect to voting rights) of Participation Securities. If any Participation Unitholder elects not to purchase its full Participation Portion, the issuer shall allocate the unpurchased Participation Securities to each of
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those other Participation Unitholders who elected to purchase its full Participation Portion, with such allocation to each such Participation Unitholder equal to the product of (i) the unpurchased Participation Securities and (ii) a fraction where the numerator is such other Participation Unitholder’s Participation Portion and the denominator is the sum of such other Participation Unitholders’ respective Participation Portions; provided, that no Participation Unitholder shall be required to purchase more Participation Securities than the maximum number set forth in such Unitholder’s Participation Notice.
(ii) The closing of the Post-Closing Issuance (the “Participation Closing”) shall take place at such time and place as specified by the Company. If the Participation Closing does not occur within ninety (90) days after the delivery of the Issuance Notice, or if the price for the Participation Securities is greater than or less than the price or range set forth in the Issuance Notice (other than de minimis differences), each Participation Unitholder shall be released from such holder’s obligations under its Participation Notice, the Issuance Notice shall be null and void, and the terms and provisions of this Section 9.1 must be separately complied with respect to any Post-Closing Issuance.
(c) Further Assurances. Each Participation Unitholder shall take all such reasonable actions to promptly consummate its purchase of Participation Securities pursuant to this Section 9.1, including (i) executing, acknowledging and delivering consents, assignments, waivers and other documents or instruments; (ii) filing applications, reports, returns, filings and other documents or instruments with governmental authorities; and (iii) otherwise cooperating with the Company on the same terms as the Silgan Investors to the extent the Silgan Investors are participating.
(d) Expenses. The Company and each Unitholder shall bear its own costs and expenses in connection with any Post-Closing Issuance or purchase or sale of Participation Securities; provided, that all reasonable and documented out-of-pocket costs and expenses incurred by the Silgan Investors and the A-VL Investors and their respective Affiliates shall be promptly reimbursed or paid by the Company upon request.
(e) Non-Voting Participation Securities. Notwithstanding anything to the contrary set forth herein, to the extent that the Company intends to issue Participation Securities that have voting rights, the Company may, in its sole discretion, issue Participation Securities that do not have any such voting rights, but are otherwise economically identical to the Participation Securities that do have such voting rights, to any Participation Unitholder that does not own Voting Securities as of the consummation of the Post-Closing Issuance or is otherwise a Non-Institutional Unitholder.
Section 9.2. Excluded Transactions. The provisions of this Article IX shall not apply to Post-Closing Issuances by the Company or any of its Subsidiaries as follows:
(a) any Post-Closing Issuance to Service Providers as compensation to such Service Providers;
(b) any Post-Closing Issuance in connection with any unit split, unit dividend or other distribution (so long as all holders of the same class or series of Securities are treated equally with all other holders of such class or series of Securities);
(c) any Post-Closing Issuance in connection with the conversion, exchange or exercise of Securities issued in a prior Post-Closing Issuance in accordance with the terms of such Securities;
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(d) any Post-Closing Issuance in connection with a Drag Along Sale or pursuant to an Initial Public Offering (including pursuant to Section 7.5(k));
(e) any Post-Closing Issuance the proceeds of which are solely to effect a repurchase of Securities from Unitholders in a transaction designed to replicate the effects of a Transfer pursuant to this Agreement (i.e., a “synthetic secondary”);
(f) any Post-Closing Issuance in connection with the Transaction Documents.
Section 9.3. Certain Definitions used in this Article IX.
(a) “Eligible Preemptive Rights Unitholder” means (i) the Silgan Investors and the A-VL Investors and (ii) each other Unitholder that is designated in writing by the Silgan Investors and the A-VL Investors as an “Eligible Preemptive Rights Unitholder”.
(b) “Participation Portion” means, for each Participation Unitholder, and with respect to each type and class of Participation Securities, the product of (i) the aggregate Participation Securities of such type and class proposed to be issued in the Post-Closing Issuance as set forth in the Issuance Notice and (ii) a fraction, the numerator of which is the aggregate number of Class A Units (other than Unvested Units) held by such Participation Unitholder as of immediately prior to the consummation of the Post-Closing Issuance and the denominator of which is the total number of Class A Units (other than Unvested Units) issued and outstanding as of immediately prior to the consummation of the Post-Closing Issuance.
(c) “Participation Securities” means the Securities, debt, or debt securities issued in a Post-Closing Issuance that are not otherwise excluded from being deemed “Participation Securities” pursuant to Section 9.2.
(d) “Post-Closing Issuance” means (i) any issuance of Securities or (ii) any issuance of debt or debt securities (but, solely in the case of this clause (ii), only if a portion of such issuance of debt or debt securities will be acquired by an Investor or an Affiliate of an Investor), in each case of the foregoing clauses (i) and (ii), after the Effective Date by the Company or direct or indirect wholly owned Subsidiaries (but excluding any such issuance to the Company or any Subsidiary), but in each case excluding any issuance in connection with a Pre-Spin Purchase.
Section 9.4. Termination of Article IX. Upon the consummation of an Initial Public Offering, this Article IX shall terminate and be of no further force and effect.
ARTICLE X
CALL RIGHTS ON EMPLOYEE EQUITY
Section 10.1. General. Except as may otherwise be agreed by the Company in writing with any Applicable Employee in any other agreement (including any Employee-Related Agreement), if (i) an Applicable Employee’s employment with, engagement by or service as a director of the Company or any of its Subsidiaries shall terminate or (ii) the Applicable Employee with respect to an Employee Investor breaches its obligations set forth in its [Confidentiality, Non-Interference and Invention Assignment Agreement] (if any) or any restrictive covenants set forth in its employment, consulting or similar agreement (a “Call Event”), the Company (and, to the extent provided in Section 10.3, the Silgan Investors and the A-VL Investors) shall have the right, but not the obligation, to purchase (a “Call”), from time to time, until the Call Termination Date, all or any portion of the Securities (the “Call Units”) owned by such Applicable Employee and any of his or her Permitted Transferees (each, a “Call Unitholder”) that are not automatically forfeited for no consideration upon the occurrence of such Call Event upon the terms and subject to the conditions set forth in this Article X. The Call right set forth in this Article X, shall terminate upon an Initial Public Offering, or if earlier, the first to occur of a Sale Transaction or a Spinoff (as defined in the Equity Incentive Plan).
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Section 10.2. Call Option of the Company.
(a) In connection with a Call Event, the Company shall have the right, but not the obligation, by one or more written notices (a “Call Notice”) to such Call Unitholder on or prior to the Call Termination Date, to Call all or any specified portion of the Call Units at the Call Price.
(b) Upon the exercise of a Call with respect to any Call Units pursuant to this Section 10.2, (i) the Company shall, on such date as determined by the Company and set forth in a written notice to such Call Unitholder (the “Call Closing Date”), purchase such Call Units from the applicable Call Unitholder for the Call Price payable in cash, by cashier’s check, by wire transfer of funds and/or, to the extent contemplated by Section 10.4, a Company Note, and (ii) as a condition to receiving the Call Price, the applicable Call Unitholder shall transfer such Call Units to the Company free and clear of all Encumbrances and execute and deliver to the Company such agreements or documents as may be reasonably requested by the Company to give effect to the purchase of such Call Units. In the event that the Company delivers a Call Notice to a Call Unitholder and such Call Unitholder does not comply with this Section 10.2, the Company shall have the right to either (1) set aside the Call Price until the applicable Call Unitholder complies with this Section 10.2 or (2) cancel the Securities subject to such Call Notice without the obligation to pay the Call Price to the applicable Call Unitholder.
(c) Each Call Unitholder hereby makes the following representations and warranties for the benefit of the purchaser of its Call Units as of the Call Closing Date, which (A) shall survive the consummation of the purchase of the Call Units and the termination of this Agreement and (B) may also be set forth in the purchase agreement giving effect to the purchase of the Call Units in the form requested by the Company:
(i) The Call Unitholder (A) is the legal, record and beneficial owner of, and has good and valid title to, the Call Units and (B) has full power and authority to sell, assign and transfer the Call Units;
(ii) The purchaser of the Call Units will acquire good, marketable and unencumbered title to such Call Units, free and clear of any Encumbrance, and the same will not be subject to any adverse claim or right; and
(iii) Each representation and warranty set forth in Section 12.2 mutatis mutandis with respect to the purchase of the Call Units and the purchase agreement giving effect to the purchase of the Call Units (in the form requested by the Company).
(d) As of the Call Closing Date, the Call Unitholder shall no longer have any right, title or interest to any of the Call Units set forth in the Call Notice (each such Call Units shall be deemed to have been repurchased by the Company as of the Call Closing Date), and instead the Call Unitholder shall only be entitled to the right to receive the applicable Call Price. Upon payment of such Call Price to the account or address on file with the Company, the Company shall have no further liability or obligations to the Call Unitholder with respect to the Call Units set forth in the Call Notice.
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Section 10.3. Call Option of the Investors. If, at any time prior to the Call Termination Date, the Company shall determine not to exercise its Call right pursuant to this Article X with respect to a Call Unitholder, then the Company shall promptly notify the Silgan Investors and the A-VL Investors of such determination. In such event, the Silgan Investors and the A-VL Investors shall have a pro rata right (based on the relative ownership of Unit Equivalents by the Silgan Investors and the A-VL Investors at the time of delivery of such notification to the Company) to exercise the Call pursuant to the terms and conditions of this Article X in the same manner as the Company would be permitted to exercise such Call; provided, that if either the Silgan Investors, on the one hand, or the A-VL Investors, on the other hand, do not exercise their pro rata right, the other Investors may elect to exercise the Call right in full.
Section 10.4. Settlement with a Company Note. If, and to the extent, at the time the Company exercises its Call right with respect to the Call Units of an applicable Call Unitholder, (x) the Company is not permitted to pay the Call Price in cash, or any of the Company’s Subsidiaries are prevented from distributing to the Company sufficient funds to pay the Call Price in cash, pursuant to the then applicable terms and conditions of the agreements governing any equity instruments, debt agreements or other instruments or contracts of the Company or any of its Subsidiaries or under applicable laws, including, for the avoidance of doubt, any federal, state, non-U.S. or other laws (including those regarding the disclosure of material non-public information, the disclosure of which the Board or the Committee has determined in good faith would not be advisable) and/or any foreign exchange or currency control laws or regulations, (y) the Board determines in good faith that the payment of the Call Price would be reasonably likely to render the Company or any of the Subsidiaries unable to satisfy its liabilities as they become due, or (z) the Board determines in good faith that there is not then available cash to satisfy payment of the Call Price or such payment at such time could have an adverse effect on the condition, assets, business or plans of the Company and its Subsidiaries, taken as a whole (the foregoing clauses (x), (y) and (z) are referred to herein as a “Financing Restriction”), then, in either case, the Company shall have the option to settle its obligations to purchase the Call Units of such Call Unitholder by delivery to such Call Unitholder of a promissory note of the Company in a face amount equal to the Call Price (less any applicable withholding) of such Call Units, (a “Company Note”). Each Company Note shall bear a rate of interest as determined as of the time of the issuance thereof by the Board in good faith. Each Company Note shall (i) be subordinated to the prior payment in full of all of the Company’s indebtedness for money borrowed, (ii) mature no later than the four (4) year anniversary of the Call Date and (iii) provide for repayment in four (4) equal annual installments.
Section 10.5. Financing Restriction. Notwithstanding anything in this Article X to the contrary, if there is a Financing Restriction, or if the Company does not have funds available to effect such repurchase of Call Units, the Company may unilaterally extend the Call Termination Date until 30 days after the earliest date on which such Financing Restriction or unavailability of funds has ceased and no such event would result from exercise of the Call.
Section 10.6. Certain Definitions used in this Article X.
(a) “Call Date” shall mean the date on which a Call Notice is sent by the Company (or, if applicable, the Silgan Investors or the A-VL Investors).
(b) “Call Price” means, in each case less any applicable withholding, a price equal to the FMV per Unit of such Call Units as of the Call Date.
(c) “Call Termination Date” means the date that is twelve (12) months after the Call Event.
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ARTICLE XI
ADDITIONAL AGREEMENTS
Section 11.1. Further Assurances. From time to time, at the reasonable request of the Silgan Investors and the A-VL Investors and without further consideration, each party hereto shall execute and deliver such additional documents and take all such further action as may be necessary or appropriate to consummate and make effective, in the most expeditious manner practicable, the transactions contemplated by this Agreement.
Section 11.2. Other Businesses; Waiver of Certain Duties.
(a) The parties expressly acknowledge and agree that to the fullest extent permitted by applicable law, each of the Silgan Investors and the A-VL Investors (including (A) their respective Affiliates, (B) in the case of the A-VL Investors only, any portfolio company in which they or any of their respective Affiliates have made an investment or (C) any of their respective limited partners, non-managing members or other similar direct or indirect investors) and the directors of the Company or any of its Subsidiaries appointed by any of the Silgan Investors or the A-VL Investors, and any Silgan Designated Director, any Silgan Affiliated Officer, any A-VL Designated Director, any A-VL Affiliated Officer, any Silgan Nominee and any A-VL Nominee (collectively, “Exempted Persons”):
(i) currently has, and will in the future have or will consider acquiring, investments in numerous companies with respect to which such Exempted Person may serve as an advisor, a director or in some other capacity and, in recognition that such Exempted Person may have myriad duties to various investors and partners and, in anticipation that the Company on the one hand, and such Exempted Person on the other hand, may engage in the same or similar activities or lines of business and have an interest in the same areas of business opportunities;
(ii) have the right to, and shall have no duty (fiduciary, contractual or otherwise) not to, directly or indirectly engage in and possess interests in other business ventures of every type and description, including those engaged in the same or similar business activities or lines of business as the Company or any of its Subsidiaries or deemed to be competing with the Company or any of its Subsidiaries, on its own account, or in partnership with, or as an employee, officer, director or shareholder of any other Person, with no obligation to offer to the Company or any of its Subsidiaries or any Unitholder of the Company or any of its Subsidiaries the right to participate therein;
(iii) may invest in, or provide services to, any Person that directly or indirectly competes with the Company or any of its Subsidiaries; and
(iv) shall have no duty (fiduciary, contractual or otherwise) to communicate or present any knowledge of a potential transaction or matter that may be a corporate or other business opportunity for the Company or any of its Subsidiaries to the Company or any of its Subsidiaries or any Unitholder of the Company or any of its Subsidiaries, and, notwithstanding any provision of this Agreement to the contrary, shall not be liable to the Company or any of its Subsidiaries or any Unitholder of the Company or any of its Subsidiaries (or their respective Affiliates) for breach of any duty (fiduciary, contractual or otherwise) by reason of the fact that such Person, directly or indirectly, pursues or acquires such opportunity for itself, directs such opportunity to another Person or does not present such opportunity to the Company or any of its Subsidiaries or any Unitholder of the Company or any of its Subsidiaries (or their respective Affiliates).
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For the avoidance of doubt, the parties acknowledge that this paragraph is intended to disclaim and renounce, to the fullest extent permitted by applicable law, any right of the Company or any of its Subsidiaries with respect to the matters set forth herein, and this paragraph shall be construed to effect such disclaimer and renunciation to the fullest extent permitted by law.
The provisions of this Section 11.2, to the extent that they restrict the duties and liabilities of any of the Silgan Investors or the A-VL Investors or any director of the Company appointed by any of the Silgan Investors or the A-VL Investors (including any Silgan Designated Director, any Silgan Affiliated Officer, any A-VL Designated Director, any A-VL Affiliated Officer, any Silgan Nominee and any A-VL Nominee) otherwise existing at law or in equity, are agreed by the parties hereto to replace such other duties and liabilities of the Silgan Investors or the A-VL Investors, as applicable, or any such director of the Company appointed by any of the Silgan Investors or the A-VL Investors (including any Silgan Designated Director, any Silgan Affiliated Officer, any A-VL Designated Director, any A-VL Affiliated Officer, any Silgan Nominee and any A-VL Nominee), as applicable, to the fullest extent permitted by applicable law.
(b) Any business opportunity that is presented to, or comes to the attention of, any Officers or employees of the Company or any of its Subsidiaries (in each case who is not a Silgan Affiliated Officer) in his or her capacity as such will remain the exclusive property of the Company or any of its Subsidiaries, as applicable. If (i) any business opportunity is presented to, or otherwise comes to the attention of, any Silgan Affiliated Officer in his or her capacity as an officer of the Company while such Silgan Affiliated Officer is serving as an officer of the Company, (ii) such Silgan Affiliated Officer reasonably determines that there is business overlap between Silgan Holdings and/or its Subsidiaries, on the one hand, and the Company and/or its Subsidiaries, on the other hand, with respect to such business opportunity, and (iii) such Silgan Affiliated Officer has disclosed such business opportunity to the board of directors of Silgan Holdings, then such Silgan Affiliated Officer must also disclose such business opportunity to the Board.
(c) Nothing in this Section 11.2 shall, or shall be deemed to, limit the rights and obligations of any party to the Restrictive Covenant Agreement. In the event of conflict between this Agreement and the Restrictive Covenant Agreement, the Restrictive Covenant Agreement shall control.
Section 11.3. Confidentiality.
(a) Without limiting the terms of any other agreement entered into by the Company or any Unitholder, the terms of this Agreement and any information, documents or other materials obtained hereunder, including pursuant to Section 11.7, or otherwise provided to any Unitholder shall be confidential and no party to this Agreement shall disclose to any Person not a party to this Agreement any of the terms of this Agreement or any information, documents or other materials obtained pursuant to Section 11.7, other than (a) to its and its Affiliates’ employees, auditors, investors, partners, members, creditors, advisors or counsel, in each case, to the extent such disclosure reasonably relates to the administration of the investment represented by the Securities and who are informed that such information is subject to the provisions of this Section 11.3(a) and who enter into or are otherwise subject to confidentiality arrangements with such Unitholder in form and substance reasonably satisfactory to such Unitholder, (b) as may be (x) requested or required by applicable law, regulation (including under the Securities Act or the Exchange Act), this Agreement or exchange listing requirements or any regulatory or governmental authority, (y) disclosed to a regulatory or governmental authority with jurisdiction over such party to the extent such disclosure is determined by legal counsel to be advisable in light of ongoing review or oversight by such regulatory or governmental authority or (z) necessary in connection with any litigation among the parties hereto or to negotiate and effect a transfer of Securities if and to the extent permitted under this Agreement, (c) the disclosure by any A-VL Investor and its Affiliates to their respective investors and prospective investors of information of the type that is customarily disclosed to investors and prospective limited partners of private
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equity or other investment funds, provided, that such investors and prospective investors enter into or are otherwise subject to confidentiality arrangements with such A-VL Investor or such Affiliate, as applicable, in form and substance reasonably satisfactory to such A-VL Investor or such Affiliate, as applicable, (d) disclosure that is reasonably required or advisable with a tax audit involving the Company, a Unitholder or its Affiliates, and (e) to the extent the Silgan Investors and the A-VL Investors consent in writing.
(b) No press release or public announcement related to the Transaction Documents or any other announcement or communication to the employees, clients or suppliers of the Company or any of its Subsidiaries, will be issued or made by any of the Unitholders or their respective Affiliates without the prior written approval of the Silgan Investors and the A-VL Investors.
(c) Each Unitholder agrees that each Transaction Document and the terms and conditions set forth therein shall be kept strictly confidential and shall not be disclosed or otherwise made available to any other Person, except (i) with the approval of the Silgan Investors and the A-VL Investors, (ii) to any financial, legal, accounting or tax advisor or consultant to such Unitholder (provided, that such advisor or consultant is subject to a confidentiality agreement or professional obligation of confidentiality that is substantially identical to this Section 11.3 and such Person enforces such agreement or obligation against such advisor or consultant) and (iii) where such disclosure, availability or filing, upon the advice of counsel, is required by applicable law and only to the extent required by such law; provided, that in the event that such disclosure pursuant to this clause (iii) is required, such Unitholder agrees to use its commercially reasonable efforts to obtain “confidential treatment” or similar treatment of the Transaction Documents and to redact such terms thereof that the Silgan Investors and the A-VL Investors shall reasonably request.
(d) Each Director agrees that it shall keep confidential and use commercially reasonable measures to protect any information, documents or other materials (collectively, “Confidential Materials”) obtained in connection with his or her service on the Board, and shall not use such Confidential Materials other than in connection with his or her service on the Board; provided, that Silgan Designated Directors may share such Confidential Materials with the Silgan Investors, and the A-VL Designated Directors may share such Confidential Materials with the A-VL Investors, in each case, together with such Investor’s representatives who (x) need to know such information in connection with such Investor’s investment in the Company (or, in the case of the Silgan Investors, the management and operation of the Company) and (y) are directed to keep such Confidential Materials confidential; provided, further, that (i) in no event may Confidential Materials be shared with any portfolio company of the A-VL Investors or their Affiliates (provided, that a portfolio company shall not be deemed to have been provided Confidential Materials as a result of an A-VL Investor or its Affiliates’ personnel or operating executives receiving Confidential Material so long as such persons do not disclose Confidential Materials to any other directors, officers or employees of such portfolio company, or use Confidential Materials in violation of this Section 11.3 for the benefit of such portfolio company), (ii) all Confidential Materials so shared shall constitute materials subject to this Section 11.3 and Confidential Information subject to the Restrictive Covenant Agreement, and (iii) each Investor shall be responsible for any use or disclosure of Confidential Materials in violation of this Agreement or the Restrictive Covenant Agreement by any Person to whom such Investor or its designated Director disclosed them.
(e) Nothing in this Section 11.3 shall, or shall be deemed to, limit the rights and obligations of any party to the Restrictive Covenant Agreement. In the event of conflict between this Agreement and the Restrictive Covenant Agreement, the Restrictive Covenant Agreement shall control. Nothing in this Section 11.3 shall restrict Silgan Holdings and its Affiliates from making such disclosures, filings or public communications as Silgan Holdings determines in good faith to be required or advisable under applicable securities laws or securities exchange rules.
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Section 11.4. Restriction on Employee Equity Program; Management Incentive Plan. Without the prior written consent of the Silgan Investors and the A-VL Investors, prior to an Initial Public Offering, neither the Company, nor any direct or indirect Subsidiary or investment holding vehicle with respect to any of the foregoing shall issue any options, profits interests or other equity grants or awards under any Equity Incentive Plan unless such options, profits interests, grants or other awards, and any resulting Securities, are subject to the terms and provisions of this Agreement.
Section 11.5. Legend on Securities Certificates.
(a) To the extent any Restricted Securities are represented by certificates, any such certificates shall include an endorsement typed conspicuously thereon of the following legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER STATE SECURITIES LAWS. THESE SECURITIES MAY NOT BE RESOLD OR TRANSFERRED UNLESS REGISTERED OR EXEMPT FROM REGISTRATION UNDER SUCH ACT AND APPLICABLE STATE SECURITIES LAWS.
IN ADDITION, THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS OF THE LIMITED LIABILITY COMPANY AGREEMENT OF THE COMPANY, DATED AS OF [•] (AS MAY BE AMENDED FROM TIME TO TIME), AND MAY NOT BE VOTED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH SUCH AGREEMENTS.
In the event that any Securities so represented by certificates shall cease to be Restricted Securities and such Securities shall continue to be represented by certificates, the Company shall, upon the written request of the holder thereof, issue to such holder a new certificate representing such Securities without the first paragraph of the legend required by this Section 11.5. In the event that any Securities so represented by certificates shall cease to be subject to the restrictions on transfer set forth in this Agreement and such Securities shall continue to be represented by certificates, the Company shall, upon the request of the holder thereof, issue to such holder a new certificate representing such Securities without the second paragraph of the legend required by this Section 11.5.
(b) To the extent any Restricted Securities hereafter issued, whether upon transfer or original issue, are to be represented by certificates, all such certificates shall be endorsed with a like legend.
Section 11.6. Expense Reimbursement; Monitoring Expenses; Cost Sharing Agreement. On the Effective Date, the Company has entered into a customary management services agreement with each Investor attached as Exhibit H (the “Management Services Agreements”). For the avoidance of doubt, there shall not be any annual monitoring, advisory, transaction or similar fee paid by the Company or any of its Subsidiaries to any Investor or any of its Affiliates. The Silgan Investors and the A-VL Investors have entered into that certain Cost Sharing Agreement, dated as of October 17, 2026 (the “Cost Sharing Agreement”), pursuant to which, among other things, if the transactions contemplated by the Transaction Documents are consummated, the Company shall reimburse all reasonable and documented out-of-pocket expenses (including reasonable expenses of third-party advisors) of each of the Silgan Investors and the A-VL Investors in connection with the transactions contemplated by the Transaction Documents and with establishing the Company at the Effective Date. Moreover, the Members acknowledge and agree that the initial Chairperson has entered into the Consulting Agreement with Silgan Holdings and that all fees and expenses paid or payable by Silgan Holdings to the initial Chairperson under the Consulting Agreement (as in effect on the Effective Date or as subsequently amended with the prior written consent of the A-VL Investors) for services provided on or after the Effective Date shall be reimbursed by the Company
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(excluding, for the avoidance of doubt, the Up Front Fee (as defined in the Consulting Agreement), no portion of which shall be paid, reimbursed or otherwise borne, directly or indirectly, by the Company, any of its Subsidiaries or the A-VL Investors, but including, for the avoidance of doubt, the Consulting Fees (as defined in the Consulting Agreement) for the period from the date of the Put Option Agreement through the Effective Date).
Section 11.7. Information Rights.
(a) Prior to the consummation of an Initial Public Offering, the Company shall deliver to each Information Rights Unitholder (provided, that such Information Rights Unitholder beneficially owns any Units):
(i) audited financial statements of the Company on the earlier of (x) within five (5) Business Days after the date on which the Board has approved such audited financial statements and (y) one hundred twenty (120) days after the end of each fiscal year;
(ii) unaudited quarterly financial statements on the earlier of (x) five (5) Business Days after the date on which the Board has reviewed such unaudited quarterly financial statements and (y) sixty (60) days after the end of each fiscal quarter;
(iii) unaudited monthly financial statements on the earlier of (x) five (5) Business Days after the date on which the Board has reviewed such unaudited monthly financial statements and (y) thirty (30) days after the end of each month; and
(iv) other information reasonably requested by such Person that is necessary to prepare tax returns;
(v) to the A-VL Investors, such information reasonably necessary to comply with their applicable investor and/or limited partner reporting, fundraising or regulatory obligations; and
(vi) to the Silgan Investors, such information and access (including to personnel, books and records and the Company’s auditors) as they reasonably require in connection with the management, operation and consolidation of the Company, including financial reporting, audit, internal controls, securities disclosure, tax, treasury and regulatory purposes.
(b) Prior to the consummation of an Initial Public Offering, the Company shall deliver and/or provide, as applicable, to each Investor (provided, that, such Investor is entitled to designate a Director to the Board):
(i) (x) a copy of the then-effective Budget and/or Business Perspective and (y) subject to the requirements set forth in Section 11.3(d), the board package for each meeting of the Board; and
(ii) (x) reasonable access to the properties and facilities of, and/or utilized by, the Company and/or its Subsidiaries and meetings with management of the Company and its Subsidiaries upon reasonable notice and during business hours and (y) any other information reasonably requested from time to time by such Investor.
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(c) Following the consummation of an Initial Public Offering, the Silgan Investors and the A-VL Investors shall be entitled to customary information necessary to prepare tax returns, necessary in connection with disputes and/or fundraising and/or investor reporting purposes, including for the preparation of quarterly estimated tax payment filings of such Investor and its Affiliates on a quarterly basis and any other information that is required by such Investor and its Affiliates to comply with tax reporting obligations of such Investor and its Affiliates under applicable Law with respect to such Investor’s interest in the Company.
(d) Nothing in this Section 11.7 shall require disclosure of information, documents or materials if such disclosure (i) would or would likely result in the waiver of the attorney client or work product privilege between the Company or any of its Subsidiaries and its or their respective counsel, (ii) would or would be reasonably likely to contravene any bona fide confidentiality obligations to which the Company or any of its Affiliates is bound; provided, that the Company shall take commercially reasonable steps to provide access to such information as nearly as possible without affecting attorney client or work product privilege or conflicting with such confidentiality obligations.
Section 11.8. Insurance. The Company shall maintain with responsible and reputable insurance companies or associations, insurance in such amounts and covering such risks as the Board reasonably deems advisable.
ARTICLE XII
ADDITIONAL PARTIES; REPS AND WARRANTIES
Section 12.1. Additional Parties. Additional parties may be added to and be bound by and receive the benefits afforded by this Agreement upon the signing and delivery of a counterpart of this Agreement or a Joinder Agreement (and, if applicable, a Consent of Spouse) to the Company and the Silgan Investors and the A-VL Investors and the acceptance thereof by such additional parties and, to the extent permitted by Section 15.3 and the other provisions of this Agreement, amendments may be effected to this Agreement reflecting such rights and obligations, consistent with the terms of this Agreement, of such Unitholder as the Silgan Investors and the A-VL Investors and such Unitholder may agree. Each A-VL Blocker Entity and any other entities contemplated by this Agreement, once formed, shall become party to this Agreement and be bound by and receive the benefits afforded by this Agreement.
Section 12.2. Representations and Warranties. Each of the parties hereto hereby represents and warrants to each of the other parties on the date hereof (and in respect of any Person who becomes a party to this Agreement after the date hereof, such party hereby represents and warrants to each of the other parties on the date of its, his or her execution of this Agreement or a Joinder Agreement) as follows:
(a) Such party, to the extent applicable, is duly organized or incorporated, validly existing and in good standing under the laws of the jurisdiction of its organization or incorporation and has all requisite power and authority to conduct its business as it is now being conducted on such date and is proposed to be conducted on such date.
(b) Such party has the full power, authority and legal right to execute, deliver and perform this Agreement. The execution, delivery and performance of this Agreement have been duly authorized by all Necessary Action, corporate or otherwise, of such party. This Agreement has been duly executed and delivered by such party and constitutes its, his or her legal, valid and binding obligation, enforceable against it, him or her in accordance with its terms, subject to applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally.
(c) The execution and delivery by such party of this Agreement, and the performance by such party of its, his or her obligations hereunder, do not and will not violate (i) in the case of parties who are not individuals, any provision of its bylaws, charter, articles of association, partnership agreement or other similar document, (ii) any provision of any material agreement to which it, he or she is a party or by which it, he or she is bound or (iii) any law, rule, regulation, judgment, order or decree to which it, he or she is subject.
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(d) No consent, waiver, approval, authorization, exemption, registration, license or declaration is required to be made or obtained by such party in connection with the execution, delivery or enforceability of this Agreement or the consummation of any of the transactions contemplated herein.
(e) Such party is not as of such date in violation of any law, rule, regulation, judgment, order or decree, which violation could reasonably be expected at any time to have a material adverse effect upon such party’s ability to enter into this Agreement or to perform its, his or her obligations hereunder, including, without limitation, being subject to a Bad Actor Disqualification Event.
(f) There is no pending legal action, suit or proceeding that would materially and adversely affect the ability of such party to enter into this Agreement or to comply with and perform its, his or her obligations hereunder.
ARTICLE XIII
LIABILITY, EXCULPATION AND INDEMNIFICATION
Section 13.1. Duties of Covered Persons. To the fullest extent permitted by law, including Section 18-1101(c) of the Delaware Act, no Covered Person (other than any Director or Officer acting in his or her capacity as such, which are addressed below) shall be required to consider the interests of, or have any duties stated or implied by law or equity (including any fiduciary duty) or liabilities to any other Person by virtue of owning any interest in the Company or having the right to designate a Director, it being acknowledged and agreed, that notwithstanding the foregoing, nothing herein shall eliminate or limit (x) the express contractual provisions set forth herein or (y) the implied contractual covenant of good faith and fair dealing. Each Director, in his or her capacity as such, shall have the same fiduciary duties as those applicable to directors of a Delaware corporation under the Delaware General Corporation Law; provided, however, that with respect to (i) any action or matter addressed by any approval right or consent right expressly contemplated in this Agreement and pursuant to which the applicable Investor has affirmatively provided its approval or consent or failed to deliver written approval or written objection within five (5) Business Days following such Investor’s receipt of all reasonably requested information in connection with such proposed matter, (ii) any action or matter for a Spin-Off, including any action or matter taken in accordance with Section 7.5, or (iii) the Dragging Party’s right to effect a Drag Along Sale and any resulting Sale Transaction effected in accordance with the terms of this Agreement, fiduciary duties of the Directors will be eliminated to the fullest extent permitted by applicable law, it being acknowledged and agreed, that notwithstanding the foregoing, nothing herein shall eliminate or limit (A) the express contractual provisions set forth herein or (B) the implied contractual covenant of good faith and fair dealing. Each Officer of the Company (other than any Silgan Affiliated Officer or A-VL Affiliated Officer acting in such capacity solely for administrative or ministerial purposes and who is not an employee of the Company) shall have the same fiduciary duties to the Company as an officer has to a corporation organized under the Delaware General Corporation Law. Any repeal or modification of this Section 13.1 shall not adversely affect any right or protection under this Section 13.1 of a Covered Person existing at the time of such repeal or modification.
Section 13.2. Exculpation. To the fullest extent permitted by law, including Section 18-1101(e) of the Delaware Act, no Members shall be liable or accountable in damages or otherwise to the Company, any other Member or any other Person that is a party to or is otherwise bound by this Agreement for any loss or liability arising out of any act or omission of such Member in its capacity as such, other than to the extent arising from a breach by such Member of this Agreement. To the fullest extent permitted by law, including Section 18-1101(e) of the Delaware Act but subject to any limitations on exculpation that would
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otherwise be imposed on directors of a Delaware corporation pursuant to the Delaware General Corporation Law, no Director shall be liable or accountable in damages or otherwise to the Company, any Member or any other Person that is a party to or is otherwise bound by this Agreement for any loss or liability arising out of acts or omissions of such Director not in good faith or which involve intentional misconduct, fraud or a knowing violation of law. Any repeal or modification of this Section 13.2 shall not adversely affect any right or protection under this Section 13.2 of a Member or a Director existing at the time of such repeal or modification. A Covered Person shall be fully protected in relying in good faith upon the records of the Company and upon such information, opinions, reports or statements presented to the Company by any Person as to matters the Covered Person believes are within such other Person’s professional or expert competence and who has been selected with reasonable care by or on behalf of the Company, including information, opinions, reports or statements as to the value and amount of assets, liabilities, profits or losses or any other facts pertinent to the existence and amount of assets from which distributions to Members might properly be paid.
Section 13.3. Indemnification.
(a) To the fullest extent permitted by law, the Company shall, and shall cause its Controlled Entities to, indemnify any Person made or threatened to be made a party to an action or proceeding, whether criminal, civil, administrative or investigative, by reason of the fact that he or she, his or her testator or intestate is or was a director or officer of the Company, any of its Controlled Entities or any of its predecessors serves or served at any other enterprise as a director, officer, partner, member or manager at the request of the Company, any of its Controlled Entities or any of its predecessors (an “Indemnitee”) and, upon request of such Indemnitee, the Company shall, and shall cause its Controlled Entities to, advance expenses to such Indemnitee in connection with any such action or proceeding (subject to such Indemnitee providing an undertaking to repay such advances if it is ultimately determined that such individual is not entitled to indemnification); provided, that the foregoing indemnification shall not apply to (i) any breach of such Indemnitee’s duty of loyalty to the Company, its Members or its Controlled Entities, (ii) for acts or omissions of such Indemnitee not in good faith or which involve intentional misconduct, fraud or a knowing violation of law or (iii) for any transaction from which such Indemnitee derived an improper personal benefit, in each case as ultimately determined by a court of competent jurisdiction.
(b) The Company will, and will cause its respective Subsidiaries to, jointly and severally, indemnify, exonerate and hold the Silgan Investors, the A-VL Investors and each of their respective partners, stockholders, members, Affiliates, directors, officers, fiduciaries, managers, controlling Persons, employees and agents and each of the partners, stockholders, members, Affiliates, directors, officers, fiduciaries, managers, controlling Persons, employees and agents of each of the foregoing (collectively, the “Institutional Indemnitees”) free and harmless from and against any and all liabilities, losses, damages and costs and out-of-pocket expenses in connection therewith (including reasonable attorneys’ fees and expenses) incurred by the Institutional Indemnitees or any of them before or after the Effective Date (collectively, the “Indemnified Liabilities”), arising out of any action, cause of action, suit, litigation, investigation, inquiry, arbitration or claim by any Person (other than the Company or any of its Subsidiaries) against any Institutional Indemnitee (each, an “Action”) arising directly or indirectly out of, or in any way relating to, (i) such Unitholder’s or its Affiliates’ ownership of Securities or such Unitholder’s or its Affiliates’ control or ability to influence the Board, Company or any of their respective Subsidiaries (other than any such Indemnified Liabilities (x) to the extent such Indemnified Liabilities (A) are incurred as a result of willful misconduct of such Institutional Indemnitee or (B) arise out of any breach of this Agreement or any other agreement by such Institutional Indemnitee or its Affiliates or other related Persons or the breach of any fiduciary or other duty or obligation of such Institutional Indemnitee to its direct or indirect equity holders, creditors or Affiliates or (y) to the extent such control or the ability to control the Board, the Company or any of their respective Subsidiaries derives from such Unitholder’s or its Affiliates’
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capacity as an officer or director of the Company, the Company or any such Subsidiaries) or (ii) the business, operations, properties, assets or other rights or liabilities of the Company or any of its Subsidiaries; provided, however, that if and to the extent that the foregoing undertaking may be unavailable or unenforceable for any reason, the Company will, and will cause its Subsidiaries to, jointly and severally make the maximum contribution to the payment and satisfaction of each of the Indemnified Liabilities that is permissible under applicable law. For the purposes of this Section 13.3, none of the circumstances described in the limitations contained in the proviso in the immediately preceding sentence shall be deemed to apply absent a final non-appealable judgment of a court of competent jurisdiction to such effect (provided, that any indemnity payments made by the Company or its Subsidiaries following a judgment of a court of competent jurisdiction determining that any such limitation applies, and pending such judgment becoming final and non-appealable, shall be conditioned upon receipt of a written undertaking by such Institutional Indemnitee to repay such amounts consistent with this sentence), in which case to the extent any such limitation is so determined to apply to any Institutional Indemnitee as to any previously advanced indemnity payments made by the Company, then such payments shall be promptly repaid by such Institutional Indemnitee to the Company.
(c) The Company will, and will cause its Subsidiaries to, jointly and severally, reimburse any Institutional Indemnitee for all reasonable costs and expenses (including reasonable attorneys’ fees and expenses and any other litigation-related expenses) as they are incurred in connection with investigating, preparing, pursuing, defending or assisting in the defense of any Action for which the Institutional Indemnitee would be entitled to indemnification under the terms of this Article XIII, or any action or proceeding arising therefrom, whether or not such Institutional Indemnitee is a party thereto. The Company or its Subsidiaries, in the defense of any Action for which an Institutional Indemnitee would be entitled to indemnification under the terms of this Article XIII, may, without the consent of such Institutional Indemnitee, consent to entry of any judgment or enter into any settlement if and only if it (i) includes as a term thereof the giving by the claimant or plaintiff therein to such Institutional Indemnitee of an unconditional release from all liability with respect to such Action, (ii) does not impose any limitations (equitable or otherwise) on such Institutional Indemnitee, and (iii) does not include a statement as to or an admission of fault, culpability or a failure to act by or on behalf of such Institutional Indemnitee, and provided that the only penalty imposed in connection with such settlement is a monetary payment that will be paid in full by the Company or its Subsidiaries.
(d) The Company acknowledges and agrees that the Company shall, and to the extent applicable shall cause its Controlled Entities to, be fully and primarily responsible for the payment to the Institutional Indemnitee in respect of Indemnified Liabilities in connection with any Jointly Indemnifiable Claims (as defined herein), pursuant to and in accordance with (as applicable) the terms of (i) in the case of the Company and any Controlled Entities that are Delaware limited liability companies, the Delaware Act, in the case of any Controlled Entities that are Delaware corporations, the Delaware General Corporation Law, as amended, in the case of any Controlled Entities that are Delaware limited partnerships, the Delaware Limited Partnership Act, as amended, (ii) this Agreement and the Certificate of Formation of the Company, (iii) any director indemnification agreement, (iv) any other agreement between the Company or any of its Controlled Entities and the Institutional Indemnitee pursuant to which the Institutional Indemnitee is indemnified, (v) the laws of the jurisdiction of incorporation or organization of the Company or any Controlled Entity and/or (vi) the certificate of incorporation, certificate of organization, bylaws, partnership agreement, operating agreement, certificate of formation, certificate of limited partnership or other organizational or governing documents of the Company or any Controlled Entity ((i) through (vi) collectively, the “Indemnification Sources”), irrespective of any right of recovery the Indemnitee may have from any corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise (other than the Company, any Controlled Entity or the insurer under and pursuant to an insurance policy of the Company or any Controlled Entity) from whom an Indemnitee may be entitled to indemnification with respect to which, in whole or in part, the Company or any Controlled Entity may also
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have an indemnification obligation (collectively, the “Indemnitee-Related Entities”). Under no circumstance shall the Company or any Controlled Entity be entitled to any right of subrogation or contribution by the Indemnitee-Related Entities and no right of advancement or recovery the Institutional Indemnitee may have from the Indemnitee-Related Entities shall reduce or otherwise alter the rights of the Institutional Indemnitee or the obligations of the Company or any Controlled Entity under the Indemnification Sources. In the event that any of the Indemnitee-Related Entities shall make any payment to the Institutional Indemnitee in respect of indemnification with respect to any Jointly Indemnifiable Claim, (x) the Company shall, and to the extent applicable shall cause the Controlled Entities to, reimburse the Indemnitee-Related Entity making such payment to the extent of such payment promptly upon written demand from such Indemnitee-Related Entity, (y) to the extent not previously and fully reimbursed by the Company and/or any Controlled Entity pursuant to clause (x), the Indemnitee-Related Entity making such payment shall be subrogated to the extent of the outstanding balance of such payment to all of the rights of recovery of the Institutional Indemnitee against the Company and/or any Controlled Entity, as applicable, and (z) the Institutional Indemnitee shall execute all papers reasonably required and shall do all things that may be reasonably necessary to secure such rights, including the execution of such documents as may be necessary to enable the Indemnitee-Related Entities effectively to bring suit to enforce such rights. The Company and the Institutional Indemnitees agree that each of the Indemnitee-Related Entities shall be third-party beneficiaries with respect to this Section 13.3(d), entitled to enforce this Section 13.3(d) as though each such Indemnitee-Related Entity were a party to this Agreement. The Company shall cause each of the Controlled Entities to perform the terms and obligations of this Section 13.3(d) as though each such Controlled Entity was a party to this Agreement. For purposes of this Section 13.3(d), the term “Jointly Indemnifiable Claims” shall be broadly construed and shall include, without limitation, any Indemnified Liabilities for which the Institutional Indemnitee shall be entitled to indemnification from both (1) the Company and/or any Controlled Entity pursuant to the Indemnification Sources, on the one hand, and (2) any Indemnitee-Related Entity pursuant to any other agreement between any Indemnitee-Related Entity and the Institutional Indemnitee pursuant to which the Institutional Indemnitee is indemnified, the laws of the jurisdiction of incorporation or organization of any Indemnitee-Related Entity and/or the certificate of incorporation, certificate of organization, bylaws, partnership agreement, operating agreement, certificate of formation, certificate of limited partnership or other organizational or governing documents of any Indemnitee-Related Entity, on the other hand.
(e) The rights of any Indemnitee and/or Institutional Indemnitee to indemnification pursuant to this Section 13.3 will be in addition to any other rights any such Person may have under any other Section of this Agreement or any other agreement or instrument to which such Indemnitee and/or Institutional Indemnitee is or becomes a party or is or otherwise becomes a beneficiary or under law or regulation or under the certificate of limited partnership, limited partnership agreement, certificate of incorporation or bylaws (or equivalent governing documents) of the Company, any newly formed direct or indirect parent or any direct or indirect Subsidiary or investment holding vehicle with respect to any of the foregoing.
(f) In addition to any other indemnification rights the members of the Board have pursuant to this Agreement and any agreement with the Company, the Company shall have the right to enter into with each member of the Board a customary indemnification agreement in form and substance approved by the Board, which indemnification agreement shall be the same for all directors of the Board.
(g) Neither any amendment nor repeal of this Section 13.3, nor the adoption of any provision of this Agreement inconsistent with this Section 13.3, shall eliminate or reduce the effect of this Section 13.3 in respect of any matter occurring, or any action or proceeding accruing or arising or that, but for this Section 13.3, would accrue or arise, prior to such amendment, repeal or adoption of an inconsistent provision.
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(h) The Company may purchase and maintain, at its expense, directors’ and officers’ liability insurance covering the Directors, the Officers and, to the extent available on commercially reasonable terms, the Institutional Indemnitees, in such amounts and on such terms as the Board reasonably determines are customary for similarly situated companies.
ARTICLE XIV
TERM AND TERMINATION
Section 14.1. Term and Termination of the Company.
(a) The existence of the Company commenced on the date of filing for record of the Certificate of Formation and, subject to the terms of this Agreement, shall continue until the Company is dissolved, its assets shall be disposed of, and its affairs wound up on the first to occur of any of the following events:
(i) the entry of a decree of judicial dissolution under Section 18-802 of the Delaware Act;
(ii) in connection with the occurrence of an Initial Public Offering, if and when the dissolution of the Company is contemplated in connection with such transaction;
(iii) in connection with a Drag Along Sale, if and when the dissolution of the Company is contemplated in connection with such transaction; or
(iv) pursuant to the affirmative vote of the Silgan Investors and the A-VL Investors.
(b) The withdrawal, resignation, expulsion, bankruptcy or dissolution of a Member or the occurrence of any other event which terminates a Member’s continued membership in the Company shall not result in the dissolution of the Company.
Section 14.2. Distribution of Assets.
(a) If the Company is dissolved and its affairs are to be wound up, the Board of Directors shall (i) sell or otherwise liquidate all of the Company’s assets as promptly as practicable (except to the extent the Board of Directors may determine to distribute any assets to the Members in kind), (ii) discharge all liabilities of the Company (other than liabilities to Members), including all costs relating to the dissolution, winding up, and liquidation and distribution of assets, (iii) establish such reserves as may be reasonably necessary to provide for contingent liabilities of the Company, (iv) discharge any liabilities of the Company to the Members other than on account of their interests in the Company capital or profits and (v) distribute the remaining assets to the Members in accordance with Section 6.3.
(b) Upon completion of the winding up, liquidation and distribution of the assets, the Company shall be deemed terminated.
(c) The Board of Directors shall comply with any applicable requirements of applicable law pertaining to the winding up of the affairs of the Company and the final distribution of its assets.
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Section 14.3. Certificate of Cancellation. When all debts, liabilities and obligations have been paid and discharged or adequate provisions have been made therefor and all of the remaining property and assets have been distributed to the Members, a certificate of cancellation (“Certificate of Cancellation”) shall be executed in duplicate and verified by the Person signing the Certificate of Cancellation, which Certificate of Cancellation shall set forth the information required by the Delaware Act.
Section 14.4. Filing of Certificate of Cancellation.
(a) Duplicate originals of such Certificate of Cancellation shall be delivered to the Delaware Secretary of State.
(b) Upon the issuance of the Certificate of Cancellation, the existence of the Company shall cease, except for the purpose of suits, other proceedings and appropriate action as provided in the Delaware Act. The Board of Directors shall have authority to distribute in accordance with this Agreement any Company property discovered after dissolution, convey real estate and take such other action as may be necessary on behalf of and in the name of the Company.
Section 14.5. Return of Contribution; Nonrecourse to Other Members. Except as provided by law, upon dissolution, each Member shall look solely to the assets of the Company for the return of his Capital Contribution. If the Company property remaining after the payment or discharge of the debts and liabilities of the Company is insufficient to return the Capital Contribution of one or more Members, such Member or Members shall have no recourse against any other Member.
ARTICLE XV
MISCELLANEOUS PROVISIONS
Section 15.1. Remedies; Specific Performance. Each of the parties hereto acknowledges and agrees that no remedy at law would be adequate in the event of any breach of this Agreement. Accordingly, if any dispute arises concerning any provision of this Agreement or the obligations of the parties hereunder, each party hereto agrees that, in addition to any other remedy to which they may be entitled at law or in equity, the other parties hereto shall be entitled to seek specific performance to enforce this Agreement (without bond or other security being required unless the party seeking such remedy fails to demonstrate to an appropriate court having jurisdiction that such party has a likelihood of success on the merits), and each party hereto waives the defense in any action or proceeding brought to enforce this Agreement that there exists an adequate remedy at law. The parties hereto further agree to waive any requirement for the securing or posting of any bond in connection with the obtaining of any such injunctive or other equitable relief. Such remedies shall be cumulative and non-exclusive and shall be in addition to any other rights and remedies the parties may have under this Agreement or otherwise.
Section 15.2. Entire Agreement; Third Party Beneficiaries.
(a) This Agreement (including any exhibits or schedules hereto) and the other documents and agreements referred to herein or therein (including any Employee-Related Agreement or other agreement pursuant to which any Unit was granted, issued or sold) embody the entire agreement and understanding of the parties hereto in respect of the subject matter contained herein and supersede all prior agreements and understandings between the parties with respect to such subject matter; provided that such other agreements and documents shall not be deemed to be a part of, a modification of or an amendment to this Agreement. There are no restrictions, promises, representations, warranties, covenants or undertakings, other than those expressly set forth or referred to in this Agreement (including the exhibits and schedules hereto) and the other documents and agreements referred to herein or therein (including any Employee-Related Agreement or other agreement pursuant to which any Unit was granted or issued). Except for the provisions of (i) Section 3.7 and Article XIII (each of which, in addition to the parties hereto, shall be enforceable by each Covered Person), (ii) Section 13.3 (which, in addition to the parties hereto, shall be
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enforceable by the Indemnitees) and Section 13.3(d) (which, in addition to the parties hereto, shall be enforceable by the Indemnitee-Related Entities) and (iii) Section 15.2 and Section 15.6(a), this Agreement is not intended to, and does not confer upon any Person other than the parties hereto any rights or remedies. In the event of conflict between this Agreement and the Post-Spin Investor Rights Agreement Terms with respect to the period following the Spin-Off, the Post-Spin Investor Rights Agreement Terms shall control with respect to the period following the Spin-Off.
Section 15.3. Amendment; Modification and Waiver.
(a) This Agreement may be amended, modified or waived, in whole or in part, at any time pursuant to an agreement in writing executed by the Silgan Investors and the A-VL Investors, in each case, for so long as such Persons hold any Units; provided, that (i) the Board may amend this Agreement without the consent of any Unitholder solely to reflect joinders of Persons admitted, and Transfers effected and Securities issued, in each case, in accordance with this Agreement; (ii) the Dragging Party may amend (including by amendment and restatement) this Agreement to the extent reasonably necessary to implement a Drag Along Sale in accordance with Section 7.4, subject to the prior written consent of the A-VL Investors (not to be unreasonably withheld, conditioned or delayed solely to the extent such amendment does not adversely affect the A-VL Investors); provided, that no such consent shall be required for any amendment that becomes effective upon, or substantially contemporaneously with, the closing of such Drag Along Sale as a result of which the A-VL Investors no longer hold any Units, and (iii) the Silgan Investors may amend (including by amendment and restatement) this Agreement without the consent of any other Unitholder to the extent reasonably necessary to implement a Spin-Off in accordance with Section 7.5, and provided that no such amendment shall disproportionately and adversely affect the Silgan Investors, on the one hand, or the A-VL Investors, on the other hand, relative to each in their capacities as Unitholders).
(b) Any amendment or modification to the Certificate of Formation (whether by merger, consolidation, amalgamation, stock purchase, asset purchase, reorganization, share exchange, business combination or otherwise) shall require the prior written consent of the Silgan Investors and the A-VL Investors that otherwise would have been required pursuant to Section 15.3 of this Agreement had such amendment or modification been made to the corresponding provision or provisions of this Agreement.
(c) Any failure by any party at any time to enforce any of the provisions of this Agreement shall not be construed as a waiver of such provision or any other provisions hereof. Any amendment, restatement, modification or waiver effected in accordance with this Section 15.3 shall be effective and binding on the Company and each Unitholder.
Section 15.4. Severability. Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares that any term or provision hereof is invalid or unenforceable, the parties agree that the body making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.
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Section 15.5. Notices.
(a) Any and all notices, designations, offers, acceptances or other communications provided for herein shall be given in writing by registered or certified mail, internationally recognized overnight courier, or email, which shall be addressed, in the case of the Company or the Investors, as set forth below or to such other physical address and/or email address as may be designated by the Company in writing to the Unitholders or by any Investor to the Company, and, in the case of any Unitholder other than the Investors, to such party’s physical address or email address appearing on the books and records of the Company or any of its Subsidiaries, on its signature page to this Agreement or its Joinder Agreement, or to such other physical address and/or email address as may be designated by such party in writing to the Company.
(i) If to the Company, to:
Silgan Metal Packaging LLC
[Address]
[Address]
Attn: [•]
Email: [•]
with copies (which shall not constitute actual or constructive notice) to the Silgan Investors and the A-VL Investors, at the addresses set forth below.
(ii) If to the Silgan Investors or Silgan Holdings, to:
[_____]
[Address]
[Address]
Attn: [•]
Email: [•]
with a copy (which shall not constitute actual or constructive notice) to:
Jenner & Block LLP
1155 Avenue of the Americas
New York, NY 10036
Attn: Robert Rawn; Oleksandr Polonyk
Email: RRawn@jenner.com; OPolonyk@jenner.com
(iii) If to the A-VL Investors or A-VL Sponsor, to:
c/o 450 Lexington Ave, 40th Floor
New York, NY 10017
Attention: Eric Baroyan; General Counsel
E-mail: [ * * * ]
with a copy (which shall not constitute actual or constructive notice) to:
Simpson Thacher & Bartlett LLP
2475 Hanover Street
Palo Alto, California 94304
Attn: Atif Azher; Naveed Anwar; Sherry Shen
Email: aazher@stblaw.com; naveed.anwar@stblaw.com; sherry.shen@stblaw.com
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(b) Any demand, notice or other communication given by personal delivery shall be conclusively deemed to have been given on the day of actual delivery thereof and, if given by registered or certified mail or internationally recognized overnight courier, on the day of actual delivery thereof, or if given by email, on the day of transmittal thereof if given during the normal business hours of the recipient on a Business Day, and on the Business Day during which such normal business hours next occur if not given during such hours on any Business Day.
(c) Each party shall have the right to change its address set forth in the books and records maintained by the Company by delivering notice complying with the foregoing provisions of this Section 15.5 to the Company.
Section 15.6. Binding Effect; Assignment.
(a) Except as otherwise expressly provided herein, this Agreement shall be binding upon and inure to the benefit of the parties hereto and to their respective permitted transferees, successors, permitted assigns, heirs and administrators.
(b) Except as otherwise expressly provided herein, no Non-Institutional Unitholder may, directly or indirectly, assign, transfer or convey (except as part of the transfer of Units in accordance with Section 3.9 and Section 7.1) all or any part of its rights or obligations under this Agreement without the prior written consent of the Silgan Investors and the A-VL Investors. Notwithstanding anything to the contrary set forth herein, each Investor may assign its rights and corresponding obligations to any Person or Persons to whom such Investor has transferred Units in compliance with this Agreement and any other agreement pursuant to which such Unit was granted or issued.
(c) Any purported assignment of rights or obligations under this Agreement in derogation of this Section 15.6 shall be null and void.
Section 15.7. Title to Property. Legal title to all property of the Company will, unless otherwise consented to by all Members, be held and conveyed in the name of the Company.
Section 15.8. Creditors. None of the provisions of this Agreement shall be for the benefit of or enforceable by any creditors of the Company.
Section 15.9. Obligations. All obligations hereunder shall be satisfied in full without set-off, defense or counterclaim.
Section 15.10. Reliance on Authority of Persons Signing Agreement. In the event that a Member is not a natural Person, neither the Company nor any Member will be required to determine the authority of the individual signing this Agreement to make any commitment or undertaking on behalf of such entity or to determine any fact or circumstance bearing upon the existence of the authority of such individual.
Section 15.11. No Waiver. No course of dealing and no delay on the part of any party hereto in exercising any right, power or remedy conferred by this Agreement shall operate as waiver thereof or otherwise prejudice such party’s rights, powers and remedies. No single or partial exercise of any rights, powers or remedies conferred by this Agreement shall preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
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Section 15.12. Counterparts. This Agreement may be executed in two or more counterparts (including Joinder Agreements as counterparts), each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, and all signatures need not appear on any one counterpart. Any counterpart or other signature hereupon delivered electronically shall be deemed for all purposes as constituting good and valid execution and delivery of this Agreement by such party. The failure of any Member to execute this Agreement does not make it invalid as against any other Member.
Section 15.13. Headings. All headings and captions in this Agreement are for purposes of references only and shall not be construed to limit or affect the substance of this Agreement.
Section 15.14. Governing Law; Jurisdiction. This Agreement and any claims arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the law of any jurisdiction other than the State of Delaware. Each of the parties hereto submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware, or to the extent such court does not have subject matter jurisdiction, the United States District Court for the District of Delaware in any action or proceeding arising out of or relating to this Agreement, agrees that all claims in respect of the action or proceeding may be heard and determined in any such court and agrees not to bring any action or proceeding arising out of or relating to this Agreement in any other court. Each of the parties hereto waives any defense of inconvenient forum to the maintenance of any action or proceeding so brought and waives any bond, surety or other security that might be required of any other party with respect thereto. Each party hereto agrees that service of summons and complaint or any other process that might be served in any action or proceeding may be made on such party by sending or delivering a copy of the process to the party to be served at the address of the party contemplated by Section 15.5. Nothing in this Section 15.14, however, shall affect the right of any party to serve legal process in any other manner permitted by law. Each party hereto agrees that a final, non-appealable judgment in any action or proceeding so brought shall be conclusive and may be enforced in any jurisdiction, to the extent permitted by applicable law.
Section 15.15. Consents, Approvals and Actions.
(a) If any consent, approval or action of the Silgan Investors is required at any time pursuant to this Agreement, such consent, approval or action shall be deemed given if the holders of a majority of the outstanding Units held by the Silgan Investors at such time provide such consent, approval or action in writing at such time.
(b) If any consent, approval or action of the A-VL Investors is required at any time pursuant to this Agreement, such consent, approval or action shall be deemed given if the holders of a majority of the outstanding Units held by the A-VL Investors at such time provide such consent, approval or action in writing at such time.
(c) For purposes of clarity, the operation of Section 15.15(a) and Section 15.15(b) shall not deprive any of the Silgan Investors and/or the A-VL Investors of their respective rights under Section 4.1.
Section 15.16. Waiver of Jury Trial. TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, EACH PARTY HEREBY IRREVOCABLY WAIVES, AND COVENANTS THAT IT WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY FORUM IN RESPECT OF ANY ISSUE, CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING IN WHOLE OR IN PART UNDER, RELATED TO, BASED ON OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE
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TRANSACTIONS CONTEMPLATED HEREBY OR THE SUBJECT MATTER HEREOF, WHETHER NOW EXISTING OR HEREAFTER ARISING AND WHETHER SOUNDING IN TORT OR CONTRACT OR OTHERWISE. ANY PARTY HERETO MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS Section 15.16 WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.
Section 15.17. Subsequent Acquisition of Securities. Any Securities acquired subsequent to the date of Closing by a Unitholder shall be subject to the terms and conditions of this Agreement and such securities shall be considered to be “Securities,” “Units” and/or “Unit Equivalents” as applicable, as such terms are used herein for purposes of this Agreement.
Section 15.18. Aggregation of Units.
(a) All Securities held by the Silgan Investors shall be aggregated together for purposes of determining the rights or obligations of any member of the Silgan Investors, or the application of any restrictions to any member of Silgan Investors, under this Agreement in which such right, obligation or restriction is determined by any ownership threshold. The Silgan Investors may allocate the ability to exercise any rights of the Silgan Investors under this Agreement in any manner among the Silgan Investors that the Silgan Investors see fit.
(b) All Securities held by the A-VL Investors shall be aggregated together for purposes of determining the rights or obligations of any member of the A-VL Investors, or the application of any restrictions to any member of A-VL Investors, under this Agreement in which such right, obligation or restriction is determined by any ownership threshold. The A-VL Investors may allocate the ability to exercise any rights of the A-VL Investors under this Agreement in any manner among the A-VL Investors that the A-VL Investors see fit.
(c) All Securities held by an Employee Investor Group shall be aggregated together for purposes of determining the rights or obligations of any member of such Employee Investor Group, or the application of any restrictions to any member of such Employee Investor Group, under this Agreement in which such right, obligation or restriction is determined by any ownership threshold. Within each Employee Investor Group, the applicable Employee Investor Group Representative may allocate the ability to exercise any rights of the members of such Employee Investor Group under this Agreement in any manner among the members of such Employee Investor Group that such Employee Investor Group Representative sees fit.
Section 15.19. Use of Logo. The Company hereby irrevocably consents to the factual use of its and its direct and indirect Subsidiaries’ trademarks, service marks, logos and trade names by the A-VL Investors and the Silgan Investors to identify the Company and its Subsidiaries and their respective products and services, in reports to their respective investors and potential investors, on their respective website or marketing materials, and/or in offering memoranda; provided, that (a) no such use shall imply any endorsement by the Company of the A-VL Investors, the Silgan Investors or any of their respective investments, products or services, (b) no Investor shall acquire any right, title or interest in such trademarks, service marks, logos or trade names by reason of this Section 15.19, and (c) all use of the Company’s and its Subsidiaries’ trademarks, logos and trade names by the Silgan Investors and the A-VL Investors shall inure solely to the benefit of the owner thereof; provided, further, that nothing in this Agreement shall, or shall be deemed to, limit the rights of or use by Silgan Holdings or any of its Affiliates with respect to any intellectual property owned or licensed to Silgan Holdings or any of its Affiliates, including any such intellectual property that is licensed to the Company. Any use by the Company or its Subsidiaries of names or marks owned by Silgan Holdings or any of its Affiliates shall be governed by the Intellectual Property License Agreement entered into by and between Silgan Holdings and the Company on or about the date of this Agreement or other written license from the owner.
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Section 15.20. Employee Investor Group Representatives. With respect to each Employee Investor Group, the Applicable Employee (in such capacity, the “Employee Investor Group Representative”) for such Employee Investor Group shall act as, and each member of such Employee Investor Group hereby designates and appoints (and each Permitted Transferee of each such member of such Employee Investor Group is hereby deemed to have so designated and appointed) such Employee Investor Group Representative, as the sole representative of such Employee Investor Group under this Agreement, with sole power and authority to exercise all rights of the members of such Employee Investor Group hereunder and thereunder and to perform all such acts as are required, authorized or contemplated by this Agreement to be performed by any member of such Employee Investor Group under this Agreement, including delivering any notice or granting any waiver or consent hereunder or thereunder. The other parties hereto are and will be entitled to rely on any action so taken or any notice given by such Employee Investor Group Representative on behalf of any member of such Employee Investor Group and are entitled and authorized to give notices only to such Employee Investor Group Representative for any notice contemplated by this Agreement, to be given to any member of such Employee Investor Group. Each member of an Employee Investor Group hereby acknowledges and agrees that (i) if any Employee Investor Group Representative delivers any notice or election, or exercises any right hereunder and/or pursuant to any other agreement, such notice, election or exercise of rights shall be deemed to have been made on behalf of all members of the Employee Investor Group and (ii) the rights of the members of such Employee Investor Group under this Agreement shall be exercised only by the Employee Investor Group Representative with respect to such Employee Investor Group on behalf of such members and no such members shall be separately entitled to exercise any such rights or to take any action required, authorized or contemplated by this Agreement, by any member of such Employee Investor Group. Each member of an Employee Investor Group further acknowledges that the foregoing appointment and designation shall be deemed to be coupled with an interest and shall survive the death or incapacity of such member. In the event of the death or permanent disability of the Applicable Employee for such Employee Investor Group, a successor Employee Investor Group Representative may be designated by the holders of a majority of the Unit Equivalents with respect to the Securities held by the members of such Employee Investor Group; provided, that written notice thereof is (and the designation shall not be effective until) given by such new Employee Investor Group Representative to the Company. Without limiting the generality of the foregoing, with respect to each Employee Investor Group, each member of such Employee Investor Group hereby irrevocably makes, constitutes and appoints (and each transferee of such member is hereby deemed to have so made, constituted and appointed) the Applicable Employee of such Employee Investor Group (and each successor to such Employee Investor Group Representative) the true and lawful attorney-in-fact of such member (or such transferee), with full power and authority, for, on behalf of and in the name of such member (or such transferee) to execute and deliver on behalf of such member (or such transferee) any and all instruments, agreements, notices, consents and other documents that are necessary or advisable to exercise the rights and perform the acts contemplated by this Section 15.20.
Section 15.21. No Third Party Liabilities. This Agreement may only be enforced against the named parties hereto. All claims or causes of action (whether in contract or tort) that may be based upon, arise out of or relate to any of this Agreement, or the negotiation, execution or performance of this Agreement (including any representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement), may be made only against the entities that are expressly identified as parties hereto, as applicable; and no past, present or future director, officer, employee, incorporator, member, partner, stockholder, Affiliate, portfolio company in which any such party or any of its investment fund Affiliates have made a debt or equity investment (and vice versa), agent, attorney or representative of any party hereto (including any Person negotiating or executing this Agreement on behalf of a party hereto), unless a party to this Agreement, shall have any liability or obligation with respect to this Agreement or with respect to any claim or cause of action (whether in contract or tort) that may arise out of or relate to this Agreement, or the negotiation, execution or performance of this Agreement (including a representation or warranty made in or in connection with this Agreement or as an inducement to enter into this Agreement).
[Signature Pages Follow]
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IN WITNESS WHEREOF, each of the undersigned has duly executed this Agreement as of the date first written above.
| Company | ||
| SILGAN METAL PACKAGING LLC | ||
| By: | ||
| Name: | ||
| Title: | ||
[First Amended and Restated Limited Liability Company Agreement]
| Initial Silgan Investor | ||
| SILGAN HOLDINGS LLC | ||
| By: |
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| Name: | ||
| Title: | ||
[First Amended and Restated Limited Liability Company Agreement]
| Silgan Holdings | ||
| SILGAN HOLDINGS INC., solely for purposes of Section 4.3(f), Section 4.3(g) and Section 7.5(d) | ||
| By: | ||
| Name: | ||
| Title: | ||
[First Amended and Restated Limited Liability Company Agreement]
| Initial A-VL Investor | ||
| A-VL HOLDCO, LP | ||
| By: [•], its general partner | ||
| By: | ||
| Name: | ||
| Title: | ||
[First Amended and Restated Limited Liability Company Agreement]
| A-VL SPONSOR | ||
| AIP, LLC, solely for purposes of Section 7.5(j) | ||
| By: | ||
| Name: | ||
| Title: | ||
[First Amended and Restated Limited Liability Company Agreement]
Exhibit A
CONSENT OF SPOUSE
I, _________________, the undersigned spouse of _________________, hereby acknowledge that I am aware that the First Amended and Restated Limited Liability Company Agreement, dated as of [•], 2026 by and among Silgan Metal Packaging LLC and the other persons from time to time parties thereto (as may be amended, supplemented, restated or modified from time to time in accordance with its terms, the “LLC Agreement”) imposes certain transfer obligations and restrictions on my spouse’s Units (as defined in the LLC Agreement). I agree that my spouse’s interest in the Units is subject to the LLC Agreement and any interest I may have in such Units shall also be irrevocably bound by such LLC Agreement and, further, that my community property interest in such Units, if any, shall be similarly bound by such LLC Agreement.
I am aware that the legal, financial and other matters contained in the LLC Agreement are complex and I am encouraged to seek advice with respect thereto from independent legal and/or financial counsel. I have either sought such advice or determined after carefully reviewing the LLC Agreement that I hereby waive such right.
| Acknowledged and agreed this __th day of _____, 20__ | ||
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| Insert Signature of Spouse Above | ||
| Provide Address of Spouse Below: | ||
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| Telephone: | ||
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Exhibit B
JOINDER AGREEMENT
The undersigned is executing and delivering this omnibus joinder agreement (this “Joinder Agreement”) pursuant to the First Amended and Restated Limited Liability Company Agreement of Silgan Metal Packaging LLC, dated as of [•] (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the “LLC Agreement”) and the Restrictive Covenant Agreement, dated as of [•] (as amended, restated, supplemented or otherwise modified from time to time in accordance with its terms, the “Restrictive Covenant Agreement”). Capitalized terms used but not defined in this Joinder Agreement shall have the respective meanings ascribed to them in the LLC Agreement.
By executing and delivering this Joinder Agreement, the undersigned hereby adopts and approves the LLC Agreement and the Restrictive Covenant Agreement and agrees, effective commencing on the date on which the undersigned first becomes the owner of any Units, to become a party to, to be bound by, to comply with, and that his, her or its Units are subject to, the provisions of the LLC Agreement and the Restrictive Covenant Agreement in the same manner as if the undersigned were an original signatory to such agreements, in the case of the LLC Agreement, as a Member (as defined therein) and, in the case of the Restrictive Covenant Agreement, as Silgan Investor or A-VL Investor, as applicable.
The undersigned expressly acknowledges and agrees that the undersigned shall not be entitled to any rights pursuant to the LLC Agreement or the Restrictive Covenant Agreement unless the undersigned shall have executed and delivered this Joinder Agreement.
Accordingly, the undersigned has executed and delivered this Joinder Agreement as of the __ day of ____________, 2___.
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Exhibit C
DELEGATION OF AUTHORITY
Exhibit D
BUSINESS PERSPECTIVE
Exhibit E
TAX MATTER AGREEMENT TERMS
Exhibit F
TAX RECEIVABLE AGREEMENT TERMS
Exhibit G
POST-SPIN INVESTOR RIGHTS AGREEMENT TERMS
Exhibit H
MANAGEMENT SERVICES AGREEMENT
Exhibit I
REGISTRATION RIGHTS TERMS
Exhibit J
POST SPIN-OFF EXIT TRANSACTIONS
Exhibit K
SCHEDULED TSA RIGHTS
[See attached.]
Exhibit L
Exhibit 10.2
Execution Version
Silgan Metal Packaging LLC, a Delaware limited liability company (the “Promisor”, “we” or “us”)
October 17, 2026
| To: | ELEMENT HOLDINGS II L.P. |
Intertrust Corporate Services (Cayman) Limited of One Nexus Way, Camana Bay, Grand Cayman, KY1-9005, Cayman Islands (the “Exal Beneficiary”)
and
ARDAGH GROUP HOLDINGS SARL.
56, rue Charles Martel
L-2134 Luxembourg, Grand Duchy of Luxembourg (the “Ardagh Beneficiary”)
and
TRIVIUM PACKAGING B.V.
Schiphol Boulevard 149
1118 BG Schiphol, the Netherlands (the “Company Beneficiary”)
and
EXAL HOLDINGS INTERNATIONAL PARENT B.V.
Schiphol Boulevard 149
1118 BG Schiphol, the Netherlands (the “Blocker Beneficiary”)
acting severally and not jointly for the purposes hereof
(together, the “Beneficiaries”)
and
ELEMENT HOLDINGS II L.P.
Intertrust Corporate Services (Cayman) Limited of One Nexus Way, Camana Bay, Grand Cayman, KY1-9005, Cayman Islands (solely in its capacity as the “Beneficiary Representative”)
The Promisor, the Beneficiaries and the Beneficiary Representative together, the “Parties” and each a “Party”
STRICTLY PRIVATE AND CONFIDENTIAL
Re: Project Voyage – Put Option Agreement
Dear Sirs,
We refer to our discussions relating to the contemplated acquisition by the Promisor directly or indirectly of the entire issued share capital in the Company Beneficiary, a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, having its official seat (statutaire zetel) in Amsterdam, the Netherlands, and its office at Schiphol Boulevard 149, 1118 BG Schiphol, the Netherlands, registered with the Dutch Trade Register under number 75308789 from the Exal Beneficiary and the Ardagh Beneficiary by way of the acquisition of the Ardagh Seller Shares and the Exal Seller Blocker Shares (the “Transactions”), pursuant to and in accordance with the terms and conditions set forth in the share purchase agreement attached to this letter as Schedule 1 (the “SPA”).
This letter and its schedules (together, as may be amended from time to time, the “Put Option Agreement”) set forth the irrevocable commitment of the Promisor to purchase the Shares on the terms and conditions set forth in the SPA.
Capitalised terms and expressions used and not otherwise defined in this Put Option Agreement shall have the meaning ascribed to them in the SPA and Section 1.3 (Other Definitional and Interpretive Matters) of the SPA shall apply mutatis mutandis to this Put Option Agreement as if such Clause had been set out in full in this Put Option Agreement, it being specified that for the purposes of such provision, “Buyer” shall be construed as referring to the Promisor, “Seller Representative” shall be construed as referring to the Beneficiary Representative, “Exal Seller” shall be construed as referring to the Exal Beneficiary, “Ardagh Seller” shall be construed as referring to the Ardagh Beneficiary, “Company” shall be construed as referring to the Company Beneficiary and “Blocker” shall be construed as referring to the Blocker Beneficiary.
1 Put Option
1.1 The Promisor hereby irrevocably undertakes to directly or indirectly acquire the Shares, at the sole option of the Beneficiary Representative (acting on behalf of the Beneficiaries) (such commitment, the “Put Option”), in accordance with the terms and subject to the conditions set forth in the SPA (the entry into force of which requires only the exercise of the Put Option). The aggregate consideration to be paid by or on behalf of the Promisor to the Exal Beneficiary and the Ardagh Beneficiary for the Shares in the event the Put Option is exercised shall be determined and paid in accordance with Article III of the SPA.
1.2 By countersigning this Put Option Agreement, the Beneficiaries accept the Put Option solely as an option, it being expressly agreed by the Promisor that such acceptance shall not constitute, in any manner whatsoever, an undertaking by the Beneficiaries to exercise the Put Option, to execute the SPA and/or to proceed with the Transactions.
1.3 This Put Option Agreement shall enter into force on the date hereof (the “Put Option Date”) and shall remain valid until the earlier (the “Expiry Date”) of (a) the date which is five (5) Business Days after the date on which the Consultation Processes and the Merger Code Process (as such terms are defined in Clause 3) have been completed and (b) nine (9) months after the Put Option Date, or until any other date as may be agreed in writing by the Promisor, the Beneficiary Representative and the Beneficiaries (the “Option Period”); provided, that if an Exercise Notice is
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validly delivered prior to the Expiry Date, this Put Option Agreement shall remain in full force and effect until and shall automatically terminate (without any further action by any Party) upon, the earlier of (i) the SPA being executed and entered into in accordance with Clause 2.3 and (ii) the SPA coming into effect in accordance with Clause 2.4.
2 Exercise of the Put Option
2.1 The Put Option may be exercised by the Beneficiary Representative (on behalf of both of the Exal Beneficiary and the Ardagh Beneficiary) at any time after completion of the Consultation Processes and the Merger Code Process until the end of the Option Period by written notice in the form attached hereto as Schedule 2 sent by the Beneficiary Representative (on behalf of the Beneficiaries) to the Promisor in accordance with the provisions of Section 12.7 (Notices) of the SPA (the “Exercise Notice”).
2.2 If no Exercise Notice has been sent by the end of the Option Period, the Put Option shall automatically lapse without any formality or action on the part of any Party, and each Party shall be released from its obligations under this Put Option Agreement (without prejudice to the liability of any Party for Fraud or Willful Breach of this Put Option Agreement, subject to Clause 7.3) save for the provisions of Clause 7.3, Clause 8 (Exclusivity), Clause 9 (Confidentiality – Publicity), Clause 10.5 (Expense Reimbursement) and Clause 11 (Reference to the provisions of the SPA) below which shall continue to apply in accordance with their terms.
2.3 If an Exercise Notice has been sent by the end of the Option Period in accordance with this Put Option Agreement, each Party hereby irrevocably and unconditionally undertakes to sign and enter into the SPA within five (5) Business Days from receipt of the Exercise Notice (the date on which the SPA is so executed and entered into by all parties thereto being the “SPA Execution Date”), and in any event for the Exal Beneficiary and the Ardagh Beneficiary to sell, and for the Promisor to directly or indirectly acquire, as applicable, the Shares in accordance with the terms and subject to the conditions set forth in the SPA.
2.4 If an Exercise Notice has been sent by the end of the Option Period but the Parties have not signed and entered into the SPA within five (5) Business Days from receipt of the Exercise Notice by the Promisor, the Parties agree that the SPA shall automatically come into effect as if it had been executed on the date falling five (5) Business Days from receipt of the Exercise Notice by the Promisor (the “Effective Date”) and any references to “the date of this Agreement” or any similar expression within the SPA shall be deemed to be references to the Effective Date and the SPA shall be binding and enforceable from such date.
2.5 The Promisor hereby acknowledges that by countersigning this Put Option Agreement, the Beneficiaries will not be bound by any obligation of any nature whatsoever in connection with the contemplated Transactions other than the Beneficiaries’ obligations under Clauses 2 (Exercise of the Put Option), 3 (Consultation Processes), 4 (Covenants), 5 (Antitrust Clearances), 7 (Warranties of the Beneficiaries), 8 (Exclusivity), 9 (Confidentiality – Publicity), 10 (Enforcement) and 11 (Reference to the provisions of the SPA) below.
2.6 At the time that the SPA is entered into (or comes into effect as per Clause 2.4) and becomes valid and binding on the Promisor and the Beneficiaries, all rights and obligations of the Promisor and the Beneficiaries under this Put Option Agreement (other than Clauses 7.3, 9 (Confidentiality – Publicity) and 11 (Reference to the provisions of the SPA)) shall terminate with immediate effect (except in respect of claims arising out of any antecedent Fraud or Willful Breach of this Put Option Agreement, which shall be subject to Clause 7.3).
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3 Consultation Processes
3.1 The Promisor acknowledges and agrees that, in accordance with applicable Laws, before any decision is made by the Beneficiaries to exercise the Put Option in connection with the contemplated Transactions, the following works council information and consultation processes in the following Acquired Companies (the “Relevant Group Companies”) shall be performed:
(a) in France,
(i) the central works council of Trivium Packaging West France S.A.S., a French société par actions simplifiée, having its registered office at Bâtiment Kastle 2ter Rue du Château, 92200 Neuilly sur Seine and registered with the Nanterre Trade and Commercial Register under number 383 966 991;
(ii) the central works council of Trivium Metal Packaging France S.A.S., a French société par actions simplifiée, having its registered office atBâtiment Kastle 2ter Rue du Château, 92200 Neuilly sur Seine (France) and registered with the Nanterre Trade and Commercial Register under number 440 088 409; and
(iii) the works council of Trivium Aluminium Packaging France S.A.S., a French société par actions simplifiée, having its registered office at 370 Route de Marcollin, 38270 Beaurepaire (France) and registered with the Vienne Trade and Commercial Register under number 352 678 544,
hereinafter referred to as the “French Works Councils”, and
(b) in the Netherlands,
(i) the European works council that is established for the Company and its subsidiaries in the member states of the European Economic Area, hereinafter referred to as the “European Works Council”; and
(ii) the central works council of Trivium Packaging Netherlands B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) incorporated under the laws of the Netherlands, having its official seat (statutaire zetel) in Deventer, the Netherlands, and its office at Zweedsestraat 7, 7418 BG Deventer, the Netherlands, registered with the Dutch Trade Register under number 38006815, hereinafter referred to as the “Dutch Works Council”, and the Dutch Works Council together with the European Works Council and the French Works Councils hereinafter referred to as the “Works Councils”,
shall each be consulted about the contemplated Transactions (the consultation with the French Works Councils referred to as the “French Consultation Process”, the consultation with the European Works Council referred to as the “European Consultation Process”, the consultation with the Dutch Works Council referred to as the “Dutch Consultation Process”, and the French Consultation Process together with the European Consultation Process and the Dutch Consultation Process referred to as the “Consultation Processes”).
3.2 The Promisor acknowledges that the exercise of the Put Option is also subject to completion of the information and consultation process under the Dutch Merger Code (SER Fusiegedragsregels 2015) (the “Merger Code Process”). The Parties undertake to, and procure that the Relevant Group Companies in the Netherlands shall, cooperate and use their respective reasonable best efforts to act in accordance with the Dutch Merger Code and the Beneficiaries shall file a written notification to the Dutch Social Economic Council and the relevant Dutch trade unions within the meaning of the Dutch Merger Code (the “Trade Unions”) agreed in advance by the Parties and sent on behalf of all relevant parties and to invite the Trade Unions to a consultation meeting.
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3.3 By signing this Put Option Agreement, the Beneficiaries hereby undertake to use their respective reasonable best efforts so that the Consultation Processes and the Merger Code Process are duly implemented by the Relevant Group Companies as soon as reasonably practicable as from the date hereof. The Beneficiaries shall, and shall procure that each Relevant Group Company shall use reasonable best efforts to convene the first meeting of each Works Council for the purposes of the Consultation Processes as soon as reasonably practicable after the date hereof, and in any event no later than ten (10) Business Days after the date hereof; provided that any failure to hold such meeting within such period due to the availability, conduct or request of the relevant Works Council shall not constitute a breach of this Put Option Agreement; provided, further, that the Beneficiaries shall, and shall procure that each Relevant Group Company shall, in any event convene the first meeting of each Works Council no later than twenty (20) Business Days after the date hereof. The Beneficiaries, within the limit of their respective powers, shall cause each Relevant Group Company to pursue the Consultation Processes and the Merger Code Process diligently.
3.4 The Beneficiaries shall keep the Promisor regularly and reasonably informed of the progress of the Consultation Processes and the Merger Code Process, and shall consult with the Promisor on how the Promisor shall participate in and contribute to the Consultation Processes and the Merger Code Process. The Beneficiaries shall, and shall cause each Relevant Group Company to, as soon as reasonably practicable inform the Promisor of any material issues arising from the Consultation Processes and promptly provide the Promisor with copies of any material written documentation exchanged in the context of the Consultation Processes and the Merger Code Process, including any minutes of meetings with the relevant Works Council or Trade Union and written questions and answers, to the extent relating to the contemplated Transactions; provided, that the Beneficiaries may withhold or redact any document (or portions thereof) or information that may constitute privileged attorney-client communications or attorney work product, the transfer of which, or the provision of access to which, on the advice of legal counsel, would reasonably be expected to risk a waiver of such privilege, or if the provision of access to such document (or portion thereof) or information, on the advice of legal counsel, would reasonably be expected to conflict with applicable Law or conflict with any confidentiality obligations to which any Beneficiary is bound (it being agreed that, in the event any of the foregoing restrictions apply, the Beneficiaries shall provide the Promisor with a reasonably detailed description and summary of the information not provided and shall cooperate in good faith with the Promisor to design and implement alternative disclosure arrangements to enable the Promisor to evaluate such information, in each case, without jeopardizing any such privilege or violating any such Law or confidentiality obligation). To the extent any material communication is provided orally, the Beneficiaries shall promptly provide the Promisor a reasonably detailed summary of such communication. Any material document or written communication relating to the Promisor or any of its Affiliates shall only be submitted to the Works Councils or Trade Unions upon the Promisor’s prior written consent (not to be unreasonably withheld, conditioned or delayed). With respect to any other material document or written communication, the Promisor may submit any comments within two (2) Business Days from receipt of such materials and the Beneficiaries shall in good faith review, consider and incorporate any reasonable comments of the Promisor. The Beneficiaries shall, and shall cause each Relevant Group Company to, as soon as reasonably practicable and in any event promptly upon becoming aware of the same, notify the Promisor of any opinion (whether express or deemed) rendered by a Works Council in connection with the Consultation Processes, and provide the Promisor with a copy of any written advice or opinion so rendered and, to the extent a copy thereof is received by the Beneficiaries or any Relevant Group Company, a copy of the minutes of the relevant Works Council meeting(s) recording such opinion. Without limiting the foregoing, the Promisor shall have the right to withhold or redact any document (or portions thereof) or information relating to the Promisor or its Affiliates before such document or information is disclosed to the Works Councils or the Trade
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Unions that may constitute privileged attorney-client communications or attorney work product, the transfer of which, or the provision of access to which, on the advice of legal counsel, would reasonably be expected to risk a waiver of such privilege, or if the provision of access to such document (or portion thereof) or information, on the advice of legal counsel, would reasonably be expected to conflict with applicable Law.
3.5 The Promisor hereby undertakes to use reasonable best efforts to cooperate with Beneficiaries in connection with the Consultation Processes and the Merger Code Process and any part thereof and such cooperation shall include:
(a) Upon reasonable request from the Beneficiaries or any Relevant Group Company, provide the Beneficiaries or such Relevant Group Company with any relevant response, document or information (including documentation presenting the Promisor’s background, history, portfolio, activities, as well as the structure chart of the Promisor and its Affiliates, the financing of the contemplated Transactions and its prospects for the Acquired Companies, the expected consequences of the contemplated Transactions for the employees of the Relevant Group Companies and the measures envisaged by the Promisor for dealing with such consequences, which Relevant Group Companies may disclose to the Works Councils or the Trade Unions at an appropriate point in time) for the purposes of the Consultation Processes and the Merger Code Process, including in order to answer promptly to the questions that may be raised by the Works Councils or the Trade Unions (or by any expert appointed by any of the Works Councils or Trade Unions as part of the Consultation Processes and/or the Merger Code Process), as soon as practicable following receipt of a request thereto in writing from any of the Beneficiaries, but in any event within 3 Business Days of receipt of such request; provided that the Promisor may redact from any such response, document or information any privileged information, business secrets or other commercially sensitive information;
(b) upon request from the Beneficiaries or any Relevant Group Company, with reasonable advance notice, participate in the Consultation Processes and the Merger Code Process and cause appropriately senior representatives of the Promisor or its Affiliates to attend meetings with the Works Councils or Trade Unions organised by the Relevant Group Companies as part of the Consultation Processes and the Merger Code Process; and
(c) cooperate with the Beneficiaries and each Relevant Group Company in connection with the Consultation Processes and the Merger Code Process with a view to obtaining the opinion or advice, as applicable, of the Works Councils and/or the Trade Unions as soon as practicable as from the date hereof and avoid taking any act likely to prevent or materially delay the obtaining of the opinion or advice, as applicable, of the Works Councils and/or the Trade Unions. The Parties acknowledge that in the context of the European Consultation Process, the Dutch Consultation Process and the Merger Code Process, the European Works Council, the Dutch Works Council and the Trade Unions, respectively, may seek certain commitments in writing from a Relevant Group Company or the Parties. The Beneficiaries shall notify the Promisor of any request, commitment or relevant condition raised by the European Works Council in the context of the European Consultation Process, the Dutch Works Council in the context of the Dutch Consultation Process or by the Trade Unions in the context of the Merger Code Process and the Parties shall discuss in good faith any such requests, commitments or relevant conditions as needed to complete the applicable Consultation Process or the Merger Code Process; provided, that no Beneficiary or Relevant Group Company shall give any commitment, undertaking or representation to any of the Works Councils (including, for the avoidance of doubt, the French Works Councils) or Trade Unions that would bind the Promisor, the Acquired Companies or any assets comprising the Transactions without the Promisor’s prior written consent, and the Beneficiaries and the Relevant Group Companies may otherwise make any such commitments only to the extent consistent with the information and
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measures provided by the Promisor pursuant to Clause 3.5. The Parties shall carefully consider the European Works Council’s opinion, and the Dutch Works Council’s advice that may be useful to the decision making process and the opinion of the Trade Unions and discuss in good faith whether and to what extent the terms of the SPA should be amended, modified or otherwise altered to accommodate the European Works Council’s opinion, the Dutch Works Council’s advice and, if provided, the opinion of the Trade Unions (without any binding obligation of any Party to agree any changes of the SPA).
3.6 The Promisor understands that, following completion of the Consultation Processes and the Merger Code Process, a final decision will be made by the Beneficiaries regarding the contemplated Transactions, it being specified that for the purpose of this Put Option Agreement:
(a) the French Consultation Process shall be completed or deemed to have been completed in relation to the contemplated Transactions on the earlier of:
(i) the completion of the French Consultation Process by issuance of the last opinion (either positive, negative, or neutral) delivered by the French Works Councils with respect to the contemplated Transactions within the applicable maximum legal deadline set forth under the French labour code or any longer period prescribed by any applicable collective bargaining agreements (provided that the Parties have not agreed through a method agreement an extension of the applicable maximum legal deadline set forth under the French labour code); and
(ii) in the absence of all opinions from the French Works Councils, the latter of the dates on which each of the French Works Councils will be deemed to have rendered its final opinion, as determined in good faith by the Beneficiaries in consultation with the Promisor, following the expiry of (i) the period prescribed by provisions of the French labour code or (ii) any longer period prescribed by any applicable collective bargaining agreements (provided that the Parties have not agreed through a method agreement an extension of the applicable maximum legal deadline set forth under the French labour code), or as may be ordered by a competent court in accordance with applicable law, and
(b) the European Consultation Process shall be completed or deemed to have been completed in relation to the contemplated Transactions upon the earlier of:
(i) receipt of the verbal or written opinion of the European Works Council on the contemplated Transactions;
(ii) receipt of a written confirmation from the European Works Council that consultation on the contemplated Transactions can be considered completed; and
(iii) the expiration of eight weeks after the first meeting with the European Works Council on the contemplated Transactions after the date of this Put Option Agreement.
The Parties agree that they shall in good faith discuss and consider the opinion given by the European Works Council.
(c) the Dutch Consultation Process shall be completed if: (i) it is completed in a way that is consistent with the Dutch Works Council’s advice; (ii) the Dutch Works Council has waived its right of advice in writing; or (iii) it is completed in a way that deviates from the Dutch Works Council’s advice and:
(i) the Dutch Works Council has waived its rights in writing to initiate legal proceedings pursuant to article 26 of the Dutch Works Councils Act; or
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(ii) the applicable one (1) month waiting period pursuant to article 25(6) of the Dutch Works Councils Act has lapsed without the Dutch Works Council having initiated legal proceedings pursuant to article 26 of the Dutch Works Councils Act; or
(iii) any legal proceedings initiated by the Dutch Works Council pursuant to article 26 of the Dutch Works Councils Act (including any appeals) have been dismissed to the effect that no measures obstructing the implementation of the contemplated Transactions are imposed by the Dutch Enterprise Chamber (Ondernemingskamer) and any such dismissal is no longer subject to appeal (in kracht van gewijsde). In the event that the Dutch Enterprise Chamber in a final order decides in favour of the Dutch Works Council, the Beneficiaries will re-open the consultation with the Dutch Works Council taking the Dutch Enterprise Chamber’s decision into account. The Beneficiaries shall discuss in good faith with the Promisor (without any binding obligation of any of the Parties to agree any changes) whether and to what extent the terms of the contemplated Transactions should be altered to accommodate the outcome of this second round of the Dutch Consultation Process and the Dutch Enterprise Chamber’s decision; and
(d) the Merger Code Process shall be deemed completed if: (i) the Dutch Social Economic Council has been notified; (ii) the Trade Unions have been notified and invited to a consultation meeting; and (iii) the earlier of (a) none of the Trade Unions having responded to the notifications referred to above within one (1) month of their issuance, (b) the Trade Unions all having informed the Relevant Group Company, or one of the Parties, of their views on the contemplated Transactions and such views having been discussed in good faith and considered by the Parties, (c) the Trade Unions all having indicated that they are not interested in a consultation meeting with any of the Parties or the Relevant Group Company in respect of the contemplated Transactions, or (d) a combination of the above.
3.7 The Beneficiaries shall notify the Promisor of the completion of each of the Consultation Processes and the Merger Code Process, as soon as reasonably practicable, after such completion occurs, and, in any event within two Business Days of each of such completions.
3.8 Subject to the limitations set forth in Clause 3.5, the Promisor undertakes to use reasonable best efforts to take any actions which may be required to complete the Consultation Processes and the Merger Code Process. The Beneficiaries and the Promisor agree to act in good faith in relation to the contemplated Transactions, the Consultation Processes and the Merger Code Process. Notwithstanding anything to the contrary in this Put Option Agreement, in no event shall the Promisor or any of its Affiliates be required to offer, give or agree to any commitment, undertaking or assurance to any Works Council or any Trade Union (or any expert appointed by any of them) or to agree to any amendment, modification or alteration of the SPA or any other Transaction Document, and no failure or refusal by the Promisor or any of its Affiliates to do any of the foregoing shall constitute a breach of Clause 3.5, this Clause 3.8 or Clause 10.6 or a failure to use reasonable best efforts hereunder.
3.9 Any document or information provided by the Promisor to the Beneficiaries or any Relevant Group Company for the purposes of the Consultation Processes shall be treated as confidential, and the Beneficiaries shall procure, to the extent permitted by applicable Laws, that the members of each Works Council and any expert appointed by a Works Council as part of the Consultation Processes are reminded of the confidential nature of such document or information and of their duty of discretion under applicable Laws.
3.10 All costs and expenses incurred in connection with the Consultation Processes and the Merger Code Process (including the fees and expenses of any expert appointed by any Works Council or any Trade Union) shall be borne by the Company Beneficiary, and the Promisor shall bear the costs and expenses of its own cooperation pursuant to this Clause 3.
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4 Covenants
4.1 Until the earlier of the Expiry Date and the SPA Execution Date (or Effective Date, as applicable), the provisions of Section 8.1 (Access to Information), Section 8.2 (Conduct of the Business Pending the Closing), Section 8.4 (Further Assurances), Section 8.7 (Publicity), Section 8.8 (Conduct of the Parties Prior to the Closing), Section 8.10 (Buyer’s Obligations in Respect of Financing), Section 8.11 (Company’s Obligations in Respect of Financing), Section 8.12 (Tax Matters), Section 8.13 (R&W Insurance Policy), Section 8.17 (Pre-Closing Sharing of Data), Section 8.18 (Litigation Support), Section 8.19 (Treatment of Senior Secured Notes Indentures), Section 8.20 (Title Insurance and Survey; Environmental Site Assessments), Section 8.21 (Project Vulcan Transaction), Section 8.22 (Third-Party Consents), Section 8.23 (Exercise of Lease Buy-Out Option or Lease Extension Option), Section 8.25 (Redemption; Voting Agreements), Section 8.26 (Restructuring Projects) and Section 8.27 (Releases) of the SPA shall apply mutatis mutandis as if such Clauses had been set out in full in this Put Option Agreement, it being specified that for the purposes of this provision, “SPA” or “Agreement” shall be construed as referring to the “Put Option Agreement”, “Buyer” shall be construed as referring to the “Promisor” and “Sellers” shall be construed as referring to the “Exal Beneficiary” and the “Ardagh Beneficiary”.
5 Antitrust Clearances
5.1 Until the earlier of the Expiry Date and the SPA Execution Date (or Effective Date, as applicable), Section 8.3 (Regulatory Approvals) of the SPA shall apply mutatis mutandis as if such Clause had been set out in full in this Put Option Agreement, it being specified that for the purposes of this provision, “SPA” or “Agreement” shall be construed as referring to the “Put Option Agreement”, “Buyer” shall be construed as referring to the “Promisor” and “Sellers” shall be construed as referring to the “Exal Beneficiary” and the “Ardagh Beneficiary”.
5.2 Each of the Parties agrees that, until the Put Option has been exercised, if any of the conditions set forth in Section 9.1(a) or Section 9.1(b) of the SPA is no longer capable of being satisfied on or before the Termination Date, the Beneficiaries shall have the right to terminate this Put Option Agreement by written notice served to the other Parties, without prejudice to the liability of any Party for Fraud or Willful Breach of this Put Option Agreement prior to such termination, subject to Clause 7.3.
5.3 In the event this Put Option Agreement is terminated pursuant to Clause 5.2, each Party shall be released from its obligations under this Put Option Agreement (without prejudice to the liability of any Party for Fraud or Willful Breach of this Put Option Agreement, subject to Clause 7.3) save for the provisions of Clause 7.3, Clause 9 (Confidentiality – Publicity) and Clause 11 (Reference to the provisions of the SPA).
6 Warranties of the Promisor
6.1 The Promisor hereby warrants to the Beneficiaries that each statement set forth in Article VII (Representations and Warranties of Buyer) of the SPA is true and accurate as at the date of this Put Option Agreement, as if such Clause were set out in full in the Put Option Agreement, it being specified that for the purposes of this provision, “SPA” or “Agreement” shall be construed as referring to the “Put Option Agreement”, “Buyer” shall be construed as referring to the “Promisor” and “Sellers” shall be construed as referring to the “Exal Beneficiary” and the “Ardagh Beneficiary”.
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7 Warranties of the Beneficiaries
7.1 Subject to Clause 7.3 below, each of the Exal Beneficiary and the Ardagh Beneficiary warrants (only with respect to itself and not with respect to any other Beneficiary) to the Promisor that the statements set out in Article IV (Representations and Warranties Regarding the Sellers) of the SPA are true and accurate as at the date of this Put Option Agreement, the Blocker Beneficiary warrants to the Promisor that the statements set out in Article V (Representations and Warranties Regarding the Blocker) of the SPA are true and accurate as at the date of this Put Option Agreement, and the Company Beneficiary warrants to the Promisor that the statements set out in Article VI (Representations and Warranties Regarding the Acquired Companies) of the SPA are true and accurate as at the date of this Put Option Agreement, it being specified that for the purposes of this provision, “SPA” or “Agreement” shall be construed as referring to the “Put Option Agreement”, “Buyer” shall be construed as referring to the “Promisor” and “Sellers” shall be construed as referring to the “Exal Beneficiary” and the “Ardagh Beneficiary”.
7.2 Each of the Beneficiaries represents and warrants that: (a) neither it nor any Acquired Company, nor any of its or their respective officers, directors, agents, advisers, representatives or employees are now, directly or indirectly, in discussions or negotiations relating to a Competing Proposal (as defined in Clause 8.1 below) with any Person; (b) any data room access that may have been previously provided to any Person other than the Promisor has been discontinued as of the date hereof and will not be granted to any Person other than the Promisor and its representatives and advisers; and (c) the Promisor has an exclusive right to proceed with the Transactions.
7.3 This Put Option Agreement and all obligations of the Parties hereunder (including, for the avoidance of doubt, Clauses 2, 3, 4, 5, 6, 7.1, 7.2 and 8) shall be subject to Section 10.2 (Effect of Termination) of the SPA and such clause shall be incorporated by reference into this Put Option Agreement it being specified that for the purposes of this provision, “SPA” or “Agreement” shall be construed as referring to the “Put Option Agreement”, “Buyer” shall be construed as referring to the “Promisor” and “Sellers” shall be construed as referring to the “Exal Beneficiary” and the “Ardagh Beneficiary”. Each of the Buyer Damages Cap and the Seller Damages Cap (each as defined in the SPA) shall apply once to all liability for breach of this Put Option Agreement and for breach of the SPA prior to the Closing in the aggregate and shall not apply to, or be reduced by, the Expense Reimbursement. For the avoidance of doubt, in no event shall any Party be entitled to recover any amount more than once in respect of the same matter arising from the same set of facts under this Put Option Agreement and the SPA.
8 Exclusivity
8.1 As from the date hereof and until the earlier of: (i) the SPA Execution Date (or Effective Date, as applicable); and (ii) the date that is twelve (12) months after the Put Option Date (the “Exclusivity Period”), the Beneficiaries shall not, and shall procure that none of their respective Affiliates shall:
(a) (i) initiate, solicit, encourage or facilitate any inquiry, proposal or offer by any person or entity other than the Promisor, its Affiliates and/or any of its Representatives with respect to (x) the transfer of all or part of the Shares or (y) any other transaction similar to, or having the same purpose as the contemplated Transactions (any such inquiry, proposal or offer, a “Competing Proposal”), (ii) enter into, continue, or participate in any discussions or negotiations with any person or entity (other than the Promisor, its Affiliates and/or any of its Representatives) with respect to any Competing Proposal or (iii) make any offer to, or enter into any agreement with, any person or entity (other than the Promisor, its Affiliates and/or any of its Representatives) with respect to any Competing Proposal; or
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(b) furnish any information or afford access to the business, financial position, properties, assets, or the books and records of the Company and its subsidiaries to any person or entity (other than the Promisor, its Affiliates and/or any of its Representatives) in connection with any Competing Proposal.
9 Confidentiality – Publicity
9.1 The provisions of Section 8.5 (Confidentiality) and Section 8.7 (Publicity) of the SPA shall apply mutatis mutandis to this Put Option Agreement, subject only to such disclosures that are required or contemplated under this Put Option Agreement, it being specified that for the purposes of this provision, “SPA” or “Agreement” shall be construed as referring to the “Put Option Agreement”, “Buyer” shall be construed as referring to the “Promisor” and “Sellers” shall be construed as referring to the “Exal Beneficiary” and the “Ardagh Beneficiary”.
10 Enforcement
10.1 Subject to Clauses 2.2, 5.2 and 10.6, the Promisor expressly agrees that: (i) its obligations under this Put Option Agreement, in particular the undertakings set out in Clause 2.3, to acquire the Shares in accordance with the terms and subject to the conditions of the SPA, are irrevocable and unconditional and may not be withdrawn for any reason whatsoever (including, for the avoidance of doubt, prior to the exercise of the Put Option) and (ii) the SPA shall be valid, binding and enforceable in accordance with its terms upon execution of the SPA in accordance with Clause 2.3 or on the date falling five (5) Business Days after receipt of the Exercise Notice by the Promisor in accordance with Clause 2.4 (whether or not the SPA has been signed), and the sale of the Shares shall be consummated at the Closing pursuant to the terms and conditions of the SPA.
10.2 Subject to Clauses 2.2, 5.2 and 10.6, the Promisor acknowledges that the Put Option is unconditional and irrevocable and therefore undertakes not to withdraw the Put Option until the Expiry Date. Any withdrawal of the Put Option by the Promisor shall not prevent the performance of the Transactions under the terms of the SPA (whether executed or not) to the extent the Beneficiary Representative (on behalf of the Beneficiaries) delivers an Exercise Notice before the Expiry Date.
10.3 The validity and enforceability of the Put Option Agreement is not subject to the execution of the SPA and accordingly, upon exercise of the Put Option and execution of the SPA by the Beneficiaries and the Beneficiary Representative (or on the date falling five (5) Business Days after receipt of the Exercise Notice by the Promisor in accordance with Clause 2.4), the Promisor shall be bound to acquire the Shares at the Closing at the price and on and subject to the other terms and conditions of the SPA, whether or not the SPA has been executed by the Promisor.
10.4 Without prejudice to any other rights or remedies which any Party may have, each Party acknowledges and agrees that damages may not be an adequate remedy for any breach of the provisions of this Put Option Agreement and the Parties shall be entitled to seek the remedies of injunction, specific performance and other equitable relief for any threatened or actual breach of any such provision, in addition to the right to Expense Reimbursement of the Promisor under Clause 10.5, and no proof of special damages shall be necessary for the enforcement by the Parties of the rights under this Put Option Agreement.
10.5 If (a) the Consultation Processes and the Merger Code Process have been validly completed in accordance with this Put Option Agreement and (b) the Beneficiary Representative (on behalf of the Beneficiaries) have not delivered an Exercise Notice on or prior to the Expiry Date (a “Non-Exercise Event”), then the Beneficiaries shall each pay to the Promisor an amount equal to its portion (as determined in accordance with this Section 10.5) of the reasonable and documented
11
out-of-pocket third party costs, fees and expenses actually incurred by the Promisor and its Affiliates in connection with the Transactions prior to the earlier of (x) the Expiry Date and (y) the date of the termination or lapse of this Put Option Agreement (including the fees, costs and expenses of legal, financial, accounting and tax advisors actually incurred by the Promisor and its Affiliates, whether or not paid thereafter, and any non-refundable premiums, underwriting fees and other costs incurred by the Promisor and its Affiliates with respect to any R&W Insurance Policy and the insurance policy with respect to the item set forth in Schedule 8.12(f)(i) of the Company Disclosure Schedules to the SPA) (the “Expense Reimbursement”), such payment to be made no later than 10 Business Days following delivery by the Promisor to the Beneficiaries of a written statement itemizing such costs, fees and expenses, accompanied by copies of the applicable invoices and such other reasonable supporting documentation as the Beneficiary Representative may request (which statement shall be delivered no later than 10 Business Days following the Expiry Date or, if applicable, the date of such termination or lapse); provided that such Expense Reimbursement shall in no event exceed an amount equal to $40,000,000 in the aggregate. For purposes of this Clause 10.5, “Affiliates” of the Promisor shall include AIP, LLC, Fund IX and any of their respective Affiliates, investment vehicles, funds or any other similar entities but shall exclude portfolio companies. For the avoidance of doubt, (1) nothing in this Clause 10.5 shall be construed as creating any obligation on the Beneficiary Representative (on behalf of the Beneficiaries) to deliver an Exercise Notice or otherwise to exercise the Put Option, (2) no Expense Reimbursement shall be payable in respect of any lapse or termination of this Put Option Agreement other than as a result of a Non-Exercise Event, (3) in no event shall the Beneficiaries be required to pay the Expense Reimbursement on more than one occasion, (4) the obligations and liabilities of each of the Exal Beneficiary and the Ardagh Beneficiary under this Clause 10.5 shall be several, and not joint or joint and several, and each of them shall be liable only for its Pro Rata Share (being 57.75% in the case of the Exal Beneficiary and 42.25% in the case of the Ardagh Beneficiary) of the Expense Reimbursement; no failure by either of them to pay its Pro Rata Share shall increase the liability of the other, and neither the Company Beneficiary nor the Blocker Beneficiary shall have any liability under this Clause 10.5 and (5) notwithstanding anything to the contrary in this Put Option Agreement or the SPA, other than in the case of Fraud or Willful Breach prior to a Non-Exercise Event, the Expense Reimbursement shall be the sole and exclusive remedy of the Promisor and its Affiliates against the Beneficiaries and their respective Affiliates in respect of an Non-Exercise Event; provided that the right of the Promisor to pursue damages for Willful Breach by the Beneficiaries shall be in lieu of, and not in addition to, the right to receive the Expense Reimbursement, such that (x) if the Promisor commences any Legal Proceeding seeking monetary damages in respect of any Willful Breach by the Beneficiaries, the Beneficiaries shall have no obligation to pay the Expense Reimbursement (and to the extent already paid, the Promisor shall promptly repay to each Beneficiary the portion of the Expense Reimbursement it has already paid upon the earlier to occur of (A) the filing by the Promisor, with a court of competent jurisdiction, of a complaint asserting a claim for monetary damages in respect of a Willful Breach by the Beneficiaries and (B) the delivery by the Promisor to the Beneficiaries of a written notice expressly electing to pursue monetary damages in respect of a Willful Breach by the Beneficiaries in lieu of the Expense Reimbursement), and (y) if the Promisor has not delivered such a notice or filed such a complaint on or prior to the date that is 90 days following the Non-Exercise Event (or, if later, 90 days following the Promisor’s receipt of the full Expense Reimbursement), the Promisor and its Affiliates shall be deemed to have irrevocably elected to receive the Expense Reimbursement and to have waived and released any and all claims against the Beneficiaries in respect of any Willful Breach by the Beneficiaries. For purposes of this Put Option Agreement, “Willful Breach” means a deliberate act or a deliberate failure to act, which act or failure to act constitutes a material breach of any covenant set forth in this Put Option Agreement (including any provision of the SPA incorporated herein pursuant to Clause 4.1 or Clause 11), with actual knowledge that such act or failure to act would reasonably be expected to constitute a material
12
breach of this Put Option Agreement (including any provision of the SPA incorporated herein pursuant to Clause 4.1 or Clause 11). The Beneficiaries undertake not to challenge the validity or enforceability of (i) the Promisor’s entitlement to the Expense Reimbursement upon the occurrence of a Non-Exercise Event without prejudice to their right to dispute whether a Non-Exercise Event has occurred, and/or (ii) the Promisor’s right to seek damages in the event of a Willful Breach by the Beneficiaries or the Company. The provisions of this Clause 10.5 are an integral part of this Put Option Agreement without which the Promisor would not have entered into this Put Option Agreement.
10.6 In the event this Put Option Agreement is terminated (whether pursuant to this Clause 10, pursuant to Clause 1.3, 2.6 or 5.2 or because the Beneficiary Representative (on behalf of the Beneficiaries) have not delivered an Exercise Notice on or prior to the Expiry Date), each Party shall be released from its obligations under this Put Option Agreement (without prejudice to the liability of any Party for Fraud or Willful Breach of this Put Option Agreement prior to such termination or lapse, subject to Clause 7.3) save for the provisions of Clause 7.3, Clause 9 (Confidentiality – Publicity), Clause 10 (Enforcement) (including Clause 10.5 (Expense Reimbursement) and Clause 11 (Reference to the provisions of the SPA). In addition, if the termination of this Put Option Agreement results from the Beneficiary Representative (on behalf of the Beneficiaries) deciding not to deliver an Exercise Notice on or prior to the Expiry Date (outside any early termination case pursuant to Clause 1.3, 2.6, 5.2 or 10), the provisions of Clause 8 (Exclusivity) shall also survive until the earlier of (i) the expiration of the Exclusivity Period and (ii) the first date on which (x) the Expense Reimbursement has been paid in full in accordance with Clause 10.5, and (y) the Promisor and its Affiliates irrevocably elect to receive (or are deemed to have irrevocably elected to receive pursuant to Clause 10.5) the Expense Reimbursement and waive and release (or are deemed to have waived and released pursuant to Clause 10.5) any and all claims against the Beneficiaries in respect of any Willful Breach by the Beneficiaries.
11 Reference to the provisions of the SPA
11.1 Article I (Definitions); Section 10.3(d) (solely as it relates to the Debt Financing Sources); Section 12.2 (Expenses); Section 12.4 (Governing Law; Jurisdiction; Consent to Service of Process; Waiver of Jury); Section 12.5 (Entire Agreement); Section 12.6 (Amendments and Waivers); Section 12.7 (Notices); Section 12.8 (Severability); Section 12.9 (Binding Effect; Assignment); Section 12.10 (No Third Party Beneficiaries); Section 12.12 (Non-Recourse); Section 12.15 (Counterparts); Section 12.16 (Seller Representative) and Section 12.17 (Debt Financing Sources) of the SPA shall be deemed incorporated and applicable to this Put Option Agreement as if such Clauses were set out in this Put Option Agreement.
11.2 Where any provision of the SPA is deemed applicable to this Put Option Agreement, it is specified for the sake of clarity that any reference in the SPA (i) to “this Agreement” (or a similar expression) shall be construed as referring to the Put Option Agreement; (ii) to the “Sellers” shall be construed as referring to the Exal Beneficiary and the Ardagh Beneficiary, (iii) to the “Seller Representative” shall be construed as referring to the Beneficiary Representative, (iv) to the “Buyer” shall be construed as referring to the Promisor, (v) to the “Company” shall be construed as referring to the Company Beneficiary and (vi) to the “Blocker” shall be construed as referring to the Blocker Beneficiary.
This Put Option Agreement has been entered into by the Parties on the date first above written.
13
Executed by ELEMENT HOLDINGS II L.P.
By: ELEMENT GENERAL PARTNER, LTD., its general partner
| By: | /s/ Ashfaq Qadri | |
| Name: Syed Ashfaq Qadri | ||
| Title: Director | ||
[Signature Page to Put Option Agreement]
Executed by ARDAGH GROUP HOLDINGS SARL.
| By: | /s/ Herman Troskie | |
| Name: Herman Troskie | ||
| Title: Manager | ||
| By: | /s/ Johannes de Zwart | |
| Name: Johannes de Zwart | ||
| Title: Manager | ||
[Signature Page to Put Option Agreement]
Executed by TRIVIUM PACKAGING B.V.
| By: | /s/ Michael Mapes | |
| Name: M.S. Mapes | ||
| Title: Director | ||
| By: | /s/ Stefan Siebert | |
| Name: S.C. Siebert | ||
| Title: Director | ||
[Signature Page to Put Option Agreement]
Executed by EXAL HOLDINGS INTERNATIONAL PARENT B.V.
| By: | /s/ Michael Mapes | |
| Name: M.S. Mapes | ||
| Title: Director | ||
| By: | /s/ Ashfaq Qadri | |
| Name: Syed Ashfaq Qadri | ||
| Title: Director | ||
[Signature Page to Put Option Agreement]
Executed by ELEMENT HOLDINGS II L.P., solely in its capacity as the Beneficiary Representative
By: ELEMENT GENERAL PARTNER, LTD., its general partner
| By: | /s/ Ashfaq Qadri | |
| Name: Syed Ashfaq Qadri | ||
| Title: Director | ||
[Signature Page to Put Option Agreement]
Executed by SILGAN METAL PACKAGING LLC
| By: | /s/ Frank W. Hogan, III | |
| Name: Frank W. Hogan, III | ||
| Title: Vice President and Secretary | ||
[Signature Page to Put Option Agreement]
Schedule 1
SPA
See attached document.
20
| STRICTLY CONFIDENTIAL | EXECUTION VERSION |
SHARE PURCHASE AGREEMENT
BY AND AMONG
SILGAN METAL PACKAGING LLC,
THE SELLERS,
EXAL HOLDINGS INTERNATIONAL PARENT B.V.,
TRIVIUM PACKAGING B.V.,
AND
ELEMENT HOLDINGS II LP,
as the Seller Representative
Dated as of [•], 2026
TABLE OF CONTENTS
| Page | ||||||||
| ARTICLE I DEFINITIONS | 3 | |||||||
|
|
1.1 | Certain Definitions |
3 | |||||
| 1.2 | Terms Defined Elsewhere in this Agreement |
24 | ||||||
| 1.3 | Other Definitional and Interpretive Matters |
27 | ||||||
| ARTICLE II SALE AND PURCHASE OF THE SHARES; CLOSING | 30 | |||||||
| 2.1 | Sale and Purchase of the Shares |
30 | ||||||
| 2.2 | Closing |
30 | ||||||
| 2.3 | Closing Deliveries of the Parties |
31 | ||||||
| 2.4 | Allocation Schedule |
34 | ||||||
| 2.5 | Post-Closing Register Updates |
34 | ||||||
| ARTICLE III PURCHASE PRICE | 34 | |||||||
| 3.1 | Estimated Statement |
34 | ||||||
| 3.2 | Closing Date Payments by Buyer |
35 | ||||||
| 3.3 | Closing Statement |
36 | ||||||
| 3.4 | Withholding |
40 | ||||||
| ARTICLE IV REPRESENTATIONS AND WARRANTIES REGARDING THE SELLERS | 40 | |||||||
| 4.1 | Organization and Good Standing |
40 | ||||||
| 4.2 | Authorization of Agreement |
40 | ||||||
| 4.3 | Ownership of the Shares |
41 | ||||||
| 4.4 | Non-contravention |
41 | ||||||
| 4.5 | Litigation |
41 | ||||||
| 4.6 | Brokers’ Fee |
42 | ||||||
| 4.7 | Leakage |
42 | ||||||
| 4.8 | Portfolio Company Arrangements |
42 | ||||||
| 4.9 | 30% Rule Vehicles |
42 | ||||||
| 4.10 | Non-Reliance |
43 | ||||||
| ARTICLE V REPRESENTATIONS AND WARRANTIES REGARDING THE BLOCKER | 43 | |||||||
| 5.1 | Organization and Good Standing |
43 | ||||||
| 5.2 | Authorization of Agreement |
43 | ||||||
| 5.3 | Ownership of the Shares; Capitalization |
44 | ||||||
| 5.4 | Non-contravention |
44 | ||||||
| 5.5 | Litigation |
45 | ||||||
| 5.6 | Compliance with Laws |
45 | ||||||
| 5.7 | Holding Company |
45 | ||||||
| 5.8 | Tax Matters |
45 | ||||||
| 5.9 | Related Party Agreements |
47 | ||||||
| 5.10 | Brokers’ Fee |
47 | ||||||
i
TABLE OF CONTENTS
| Page | ||||||||
| ARTICLE VI REPRESENTATIONS AND WARRANTIES REGARDING THE ACQUIRED COMPANIES | 48 | |||||||
|
|
6.1 | Organization and Good Standing |
48 | |||||
| 6.2 | Authorization of Agreement |
48 | ||||||
| 6.3 | Conflicts; Consents of Third Parties |
48 | ||||||
| 6.4 | Capitalization |
49 | ||||||
| 6.5 | Subsidiaries |
50 | ||||||
| 6.6 | Financial Statements |
51 | ||||||
| 6.7 | No Undisclosed Liabilities |
52 | ||||||
| 6.8 | Absence of Certain Developments |
52 | ||||||
| 6.9 | Taxes |
53 | ||||||
| 6.10 | Real Property |
56 | ||||||
| 6.11 | Personal Property |
57 | ||||||
| 6.12 | Intellectual Property |
58 | ||||||
| 6.13 | Material Contracts |
59 | ||||||
| 6.14 | Employee Benefit Plans |
61 | ||||||
| 6.15 | Labor |
65 | ||||||
| 6.16 | Litigation |
66 | ||||||
| 6.17 | Compliance with Laws; Permits |
67 | ||||||
| 6.18 | International Trade and Improper Payments |
68 | ||||||
| 6.19 | Environmental Matters |
69 | ||||||
| 6.20 | Insurance |
70 | ||||||
| 6.21 | Related Party Agreements |
71 | ||||||
| 6.22 | Brokers’ Fee |
71 | ||||||
| 6.23 | Leakage; Debt; Intercompany Accounts |
71 | ||||||
| 6.24 | Privacy |
72 | ||||||
| 6.25 | Vendors and Customers |
73 | ||||||
| 6.26 | Specified Projects |
73 | ||||||
| 6.27 | Product Liability; Product Safety; Recalls |
73 | ||||||
| 6.28 | Non-Executive Directors |
74 | ||||||
| ARTICLE VII REPRESENTATIONS AND WARRANTIES OF BUYER | 74 | |||||||
| 7.1 | Organization and Good Standing |
74 | ||||||
| 7.2 | Authorization of Agreement |
74 | ||||||
| 7.3 | Conflicts; Consents of Third Parties |
74 | ||||||
| 7.4 | Litigation |
75 | ||||||
| 7.5 | Brokers’ Fee |
75 | ||||||
| 7.6 | Sufficient Funds |
75 | ||||||
| 7.7 | Limited Guarantees |
77 | ||||||
| 7.8 | Solvency |
77 | ||||||
| 7.9 | International Trade and Improper Payments |
77 | ||||||
| 7.10 | Project Vulcan Transaction Documents |
78 | ||||||
| 7.11 | Non-Reliance |
78 | ||||||
ii
TABLE OF CONTENTS
| Page | ||||||||
| ARTICLE VIII COVENANTS | 79 | |||||||
| 8.1 | Access to Information |
79 | ||||||
| 8.2 | Conduct of the Business Pending the Closing |
82 | ||||||
|
|
8.3 | Regulatory Approvals |
86 | |||||
| 8.4 | Further Assurances |
89 | ||||||
| 8.5 | Confidentiality |
89 | ||||||
| 8.6 | Indemnification and Insurance |
89 | ||||||
| 8.7 | Publicity |
91 | ||||||
| 8.8 | Conduct of the Parties Prior to the Closing |
91 | ||||||
| 8.9 | Employee Matters |
92 | ||||||
| 8.10 | Buyer’s Obligations in Respect of Financing |
94 | ||||||
| 8.11 | Company’s and Ardagh Seller’s Obligations in Respect of Financing |
96 | ||||||
| 8.12 | Tax Matters |
98 | ||||||
| 8.13 | R&W Insurance Policy |
100 | ||||||
| 8.14 | Company Disclosure Schedules |
102 | ||||||
| 8.15 | Section 280G |
102 | ||||||
| 8.16 | Acknowledgments by Buyer |
103 | ||||||
| 8.17 | Pre-Closing Sharing of Data |
104 | ||||||
| 8.18 | Litigation Support |
104 | ||||||
| 8.19 | Treatment of Senior Secured Notes Indentures |
104 | ||||||
| 8.20 | Title Insurance and Survey; Environmental Site Assessments |
105 | ||||||
| 8.21 | Project Vulcan Transaction |
106 | ||||||
| 8.22 | Third-Party Consents |
107 | ||||||
| 8.23 | Specified Contract |
107 | ||||||
| 8.24 | Related Party Arrangements; Intercompany Accounts |
108 | ||||||
| 8.25 | Redemption; Voting Agreements |
108 | ||||||
| 8.26 | Specified Projects |
108 | ||||||
| 8.27 | Releases |
109 | ||||||
| 8.28 | Buyer Joinder |
109 | ||||||
| ARTICLE IX CONDITIONS TO CLOSING | 110 | |||||||
| 9.1 | Conditions Precedent to Obligations of Buyer, the Company and the Sellers |
110 | ||||||
| 9.2 | Conditions Precedent to Obligations of Buyer |
110 | ||||||
| 9.3 | Conditions Precedent to Obligations of the Sellers, the Blocker and the Company |
112 | ||||||
| 9.4 | Frustration of Closing Conditions |
112 | ||||||
| ARTICLE X TERMINATION | 112 | |||||||
| 10.1 | Termination of Agreement |
112 | ||||||
| 10.2 | Effect of Termination |
114 | ||||||
| 10.3 | Fees and Expenses Following Termination |
114 | ||||||
| ARTICLE XI MISCELLANEOUS | 117 | |||||||
| 11.1 | Survival |
117 | ||||||
| 11.2 | Expenses |
117 | ||||||
| 11.3 | Notary and Notarial Fees |
118 | ||||||
| 11.4 | Governing Law; Jurisdiction; Consent to Service of Process; Waiver of Jury |
118 | ||||||
iii
TABLE OF CONTENTS
| Page | ||||||||
|
|
11.5 | Entire Agreement |
119 | |||||
| 11.6 | Amendments and Waivers |
120 | ||||||
| 11.7 | Notices |
120 | ||||||
| 11.8 | Severability |
122 | ||||||
| 11.9 | Binding Effect; Assignment |
122 | ||||||
| 11.10 | No Third Party Beneficiaries |
122 | ||||||
| 11.11 | Legal Representation |
123 | ||||||
| 11.12 | Non-Recourse |
124 | ||||||
| 11.13 | Specific Performance |
124 | ||||||
| 11.14 | Release |
125 | ||||||
| 11.15 | Counterparts |
126 | ||||||
| 11.16 | Seller Representative |
126 | ||||||
| 11.17 | Debt Financing Sources |
129 | ||||||
Exhibits
| Exhibit A |
Form of Notarial Transfer Deed |
iv
SHARE PURCHASE AGREEMENT
This SHARE PURCHASE AGREEMENT (this “Agreement”), dated as of [•], 2026, is entered into by and among: (a) Silgan Metal Packaging LLC, a Delaware limited liability company (“Buyer”), (b) Trivium Packaging B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) under the laws of the Netherlands, having its official seat in Amsterdam, the Netherlands, and its registered office at Schiphol Boulevard 149, 1118 BG Schiphol, the Netherlands, registered with the Dutch Trade Register (Handelsregister) under number 75308789 (the “Company”), (c) Exal Holdings International Parent B.V., a private company with limited liability (besloten vennootschap met beperkte aansprakelijkheid) under the laws of the Netherlands, having its official seat in Amsterdam, the Netherlands, and its registered office at Schiphol Boulevard 149, 1118 BG Schiphol, the Netherlands, registered with the Dutch Trade Register (Handelsregister) under number 70343802 (the “Blocker”), (d) Element Holdings II L.P., an exempted limited partnership formed under the laws of the Cayman Islands (the “Exal Seller”), (e) Ardagh Group Holdings S.à r.l., a private limited liability company (société à responsabilité limitée) under the laws of Luxembourg (the “Ardagh Seller” and together with the Exal Seller, the “Sellers” and, individually, a “Seller”) and (f) the Exal Seller, solely in its capacity as the Seller Representative (the “Seller Representative”). Each of Buyer, the Company, the Blocker, the Sellers and the Seller Representative is referred to herein as a “Party” and collectively, as the “Parties”.
W I T N E S S E T H:
WHEREAS, as of the Put Option Date (as defined below):
(a) the Exal Seller and Firmoront Corp, a corporation organized under the laws of the Province of Ontario, Canada (the “Firmoront Blocker Seller”), are the beneficial owners and registered holders of all of the issued and outstanding shares in the share capital of the Blocker, which consists of: (x) (i) 312,026,398 Class A shares, with a nominal value of EUR 1.00 each, numbered A-1 through A-312,026,398, (ii) 3 Class B shares, with a nominal value of EUR 1.00 each, numbered B-8 through B-10, and (iii) 213,866,659 Class C shares, with a nominal value of EUR 0.85 each, numbered C-1 through C-213,866,659 (in each case as held by the Exal Seller, the “Exal Seller Blocker Shares”) and (y) 7 Class B shares with a nominal value of EUR 1.00 each, numbered B-1 through B-7 (as held by the Firmoront Blocker Seller, the “Firmoront Seller Blocker Shares”);
(b) the Blocker is the beneficial owner and registered holder of 23,069,323 shares in the share capital of the Company, with a nominal value of EUR 1.00 each, numbered 1 through 22,942,039 and 39,821,795 through 39,949,078, jointly representing 57.75% of the issued and outstanding shares in the share capital of the Company (collectively, the “Blocker Company Shares”); and
(c) the Ardagh Seller is the beneficial owner and registered holder of 16,879,755 shares in the share capital of the Company, with a nominal value of EUR 1.00 each, numbered 22,942,040 through 39,821,794, representing 42.25% of the issued and outstanding shares in the share capital of the Company (the “Ardagh Seller Shares” and together with the Exal Seller Blocker Shares, the “Shares”);
WHEREAS, in connection with the consummation of the Transactions, contemporaneously with the Closing, the Firmoront Blocker Seller shall have entered into, and consummated the transactions contemplated by, the Redemption Agreement with the Blocker, pursuant to which, among other things, (a) the Blocker shall redeem (or cause to be redeemed) from the Firmoront Blocker Seller all of the Firmoront Seller Blocker Shares for nominal consideration and the Firmoront Seller Blocker Shares shall be immediately canceled and cease to be outstanding, (b) Trivium Packaging US Holding shall redeem (or cause to be redeemed) from the Firmoront Blocker Seller all of the Class B Shares of Trivium Packaging US Holding owned by the Firmoront Blocker Seller (the “Trivium Packaging Shares”) and the Trivium Packaging Shares shall be immediately canceled and cease to be outstanding, (c) Trivium Aluminum Packaging USA Corporation shall redeem (or cause to be redeemed) from the Firmoront Blocker Seller all of the Class B Shares of Trivium Aluminum Packaging USA Corporation owned by the Firmoront Blocker Seller (the “Aluminum Packaging Shares”) and the Aluminum Packaging Shares shall be immediately canceled and cease to be outstanding, and (d) Exal Holdings International B.V. shall redeem (or cause to be redeemed) from the Firmoront Blocker Seller, all of the Class A Shares and Class B1 Shares of Exal Holdings International B.V. owned by the Firmoront Blocker Seller (collectively, the “Exal Holdings Shares”) and the Exal Holdings Shares shall be immediately canceled and cease to be outstanding (collectively, the “Redemption”);
WHEREAS, following the Redemption, the Exal Seller will be the beneficial owner and registered holder of all of the issued and outstanding shares in the capital of the Blocker, which consists of the Exal Seller Blocker Shares;
WHEREAS, Buyer desires to purchase, or cause to be purchased, (a) all of the Ardagh Seller Shares from the Ardagh Seller, and (b) all of the Exal Seller Blocker Shares from the Exal Seller and, in each case, such Seller desires to sell all of such Shares to Buyer (or its designee);
WHEREAS, the respective boards of directors (or equivalent governing bodies) of the Company, the Blocker, the Sellers and Buyer have approved their entry into the Put Option Agreement and the consummation of the Transactions (as applicable) upon the terms and subject to the conditions set forth herein and in the other Transaction Documents;
WHEREAS, on October 17, 2026 (the “Put Option Date”), the Parties executed that certain put option agreement (the “Put Option Agreement”), pursuant to which, among other things, Buyer committed to purchase the Shares upon the terms and subject to the conditions set forth in this Agreement and in the Put Option Agreement;
WHEREAS, concurrently with the execution of the Put Option Agreement and as a condition and inducement to Buyer’s willingness to enter into the Put Option Agreement and this Agreement, each Seller has delivered to Buyer an executed restrictive covenant agreement (collectively, the “Restrictive Covenant Agreements”), in form and substance mutually agreed by the parties thereto;
WHEREAS, the Sellers and Buyer have complied with the Dutch Social and Economic Council Merger Regulation 2015 (SER-Besluit Fusiegedragsregels 2015) and the Dutch Works Councils Act (Wet op de Ondernemingsraden) as set forth in the Put Option Agreement;
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WHEREAS, the relevant employee representative bodies of the applicable French Acquired Companies have been duly informed and consulted in accordance with applicable Laws;
WHEREAS, concurrently with the execution of the Put Option Agreement and as a condition and inducement to the Company’s and each Seller’s willingness to enter into the Put Option Agreement and this Agreement, Buyer has delivered to the Company (a) a copy of the executed commitment letter from American Industrial Partners Capital Fund IX, L.P. (“Fund IX”, in such capacity, the “Equity Financing Source”), dated as of the Put Option Date (including all exhibits, schedules, annexes, supplements, and amendments thereto to the extent permitted hereunder and thereunder, the “Equity Commitment Letter”, and the commitments thereunder, the “Equity Financing Commitment”) to provide, subject to the terms and conditions therein, cash in the aggregate amount set forth therein (the “Equity Financing”), and (b) limited guarantees of Fund IX and Silgan Holdings Inc., a Delaware corporation (“SHI”) (in such capacity, each a “Guarantor” and, such limited guarantees, the “Limited Guarantees”), pursuant to which each Guarantor has guaranteed fifty percent (50%) of Buyer’s obligations pursuant to Section 8.11(d), Section 10.2 and Section 10.3 of this Agreement, subject to the terms and conditions set forth in the Limited Guarantees.
NOW, THEREFORE, in consideration of the premises and the mutual covenants and agreements hereinafter contained, the Parties hereby agree as follows:
ARTICLE I
DEFINITIONS
1.1 Certain Definitions. For purposes of this Agreement, the following terms shall have the meanings specified in this Section 1.1:
“Acquired Companies” means, collectively, the Company and each of the Company’s Subsidiaries.
“Acquired Company Privacy Policies” means any written (a) internal or external data protection, data usage, privacy and security policies of the Acquired Companies, and (b) public statements and commitments relating to privacy, security, or the Processing of Personal Information by an Acquired Company.
“Affiliate” means, with respect to any Person, any other Person that, directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, such Person, and the term “control” (including the terms “controlled by” and “under common control with”) means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through ownership of voting securities, by contract or otherwise, including with respect to Buyer, A-VL Holdco, LP, a Delaware limited partnership (“Fund IX VL Holdings”) and SHI; provided, however, that except with respect to the definition of Leakage Party (subject to the limitations set forth therein), Section 8.7, Section 8.10, Section 8.21, Section 11.11(b) and Section 11.14, notwithstanding anything to the contrary contained herein, in no event shall (a) the Sponsor or any of its Affiliates, portfolio companies, investment vehicles, funds or any other similar entities be considered an “Affiliate” of the Exal Seller, the Blocker or any Acquired Company, and (b) AIP, LLC, Fund IX or any of their respective Affiliates, portfolio companies, investment vehicles, funds or any other similar entities (other than Buyer and its Subsidiaries) be considered an “Affiliate” of Buyer; provided, that, notwithstanding the foregoing proviso, solely for purposes of Section 8.3, Fund IX shall be deemed to be an Affiliate of Buyer.
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“Antitrust Laws” means the HSR Act, the Sherman Act, the Clayton Act, the Federal Trade Commission Act, and any other United States or foreign Laws that are designed to prohibit, restrict or regulate actions having the purpose or effect of monopolization, lessening of competition, or restraint of trade.
“Ardagh Debt Documents” means (i) the Indenture, dated as of November 6, 2025, among Ardagh Group S.A., a public limited liability company (société anonyme) incorporated under the laws of Luxembourg, as issuer, GLAS Trust Company LLC, as trustee, principal paying agent, transfer agent and registrar, and GLAS SAS, as security agent, governing the 9.50% Senior Secured Notes due 2030, (ii) the indenture, dated as of November 12, 2025, among Ardagh Group S.A., as parent issuer, Ardagh Packaging Finance plc, a public limited company incorporated under the laws of Ireland, as Irish issuer, the guarantors party thereto, GLAS Trust Company LLC, as trustee, principal paying agent, transfer agent and registrar, and GLAS SAS, as security agent, governing the 11%/12% Second Lien Notes due 2030, and (iii) the Credit and Guarantee Agreement, dated December 7, 2017, among Ardagh Group S.A., as parent, the borrowers and guarantors party thereto, Citibank, N.A., as administrative agent and collateral agent, and the lenders and issuing lenders party thereto (each, as amended, restated, supplemented or otherwise modified from time to time).
“Blocker Fundamental Representations” means those representations and warranties set forth in Section 5.1, Section 5.2, Section 5.3(a), Section 5.3(b), Section 5.4(b), Section 5.7, and Section 5.10.
“Business Day” means any day of the year other than (a) a Saturday, Sunday or federal holiday in the United States or the Netherlands or (b) a day on which national banking institutions in New York City, New York or Amsterdam, the Netherlands are required or authorized to close.
“Buyer Fundamental Representations” means those representations and warranties set forth in Section 7.1, Section 7.2 and Section 7.5.
“Buyer Related Parties” means Buyer, the Equity Financing Source and their respective Affiliates and any of their respective former, current or future officers, directors, employees, partners, members, managers, agents, attorneys, representatives, equityholders, successors or permitted assigns.
“Buyer’s Relief” means any Relief which arises to the Blocker or any Acquired Company as a consequence of any event occurring in the Ordinary Course of Business and is attributable to any period or part-period (including as a consequence of any event occurring or deemed to have occurred or from income, profits or gains earned, accrued or received or deemed to have been earned, accrued or received) after the Locked Box Date, but excluding, in each case, any Relief arising as a result of the Company Transaction Expenses or the occurrence, payment, accrual or incurrence of any Leakage.
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“Clayton Act” means the Clayton Act of 1914.
“COBRA” means Part 6 of Subtitle B of Title I of ERISA, Section 4980B of the Code, or similar state or local Law.
“Code” means the Internal Revenue Code of 1986, as amended.
“Company Benefit Plan” means each “employee benefit plan” (as such term is defined in Section 3(3) of ERISA, whether or not subject to ERISA) and each other benefit or compensation plan, policy, agreement, program, practice, or arrangement, including each retirement, supplemental retirement, pension, savings, profit sharing, equity or equity-based, deferred compensation, bonus, incentive compensation, sales commission, severance, employment, individual consulting, fringe benefit, vacation, paid time off, disability, death benefit, tax gross-up or indemnification, flexible spending, tuition reimbursement, medical, dental, life or other health and welfare, retiree medical or life insurance plan, policy, agreement, program, practice, or arrangement, in each case, (a) which is sponsored or maintained by any Acquired Company or to which any Acquired Company is obligated to contribute, (b) to which any Acquired Company is a party, (c) in which any employee or service provider of an Acquired Company participates related to their services provided to such Acquired Company other than any plan, program or arrangement that is maintained by any Governmental Body and required to be maintained by applicable Law or (d) with respect to which any Acquired Company has, or would reasonably be expected to have, any obligation or liability (including contingent liability).
“Company Fundamental Representations” means those representations and warranties set forth in Section 6.1, Section 6.2, Section 6.3(a)(i), Section 6.4(a), Section 6.5(a), and Section 6.22.
“Company Subsidiary” means any Person of which a majority of the outstanding share capital, voting securities or other voting equity interests are owned, directly or indirectly, by the Company, and excluding, for the avoidance of doubt, Immobilcan S.r.l and CITEO.
“Company Transaction Expenses” means, whether paid or unpaid as of the Closing and without duplication, (a) the out-of-pocket costs, fees and expenses paid or payable to third parties (including all fees, expenses, disbursements and other similar amounts paid or payable for investment bankers, third party consultants and legal counsel) incurred and paid or payable by the Blocker or any Acquired Company (or any other Person to the extent reimbursable by the Blocker or any Acquired Company) following the Locked Box Date and prior to the Closing in connection with the Transactions, including the Consultation Obligations and any applicable VAT thereon, (b) all “single trigger” sale bonuses, change in control, transaction, retention, success or similar transaction-related bonuses and severance payments, in each case, that are or may become paid or payable by the Blocker or any Acquired Company (or any other Person to the extent payable or reimbursable by the Blocker or any Acquired Company) to any current or former director, officer, employee, or other service provider of the Blocker or any Acquired Company upon the consummation of the Transactions, and which is contingent solely upon the consummation of the
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Transactions, in each case, whether payable prior to, at or following the Closing, (c) all payments under the MIP and the Element MIP that are or may become paid or payable by the Blocker or any Acquired Company (or any other Person to the extent payable or reimbursable by the Blocker or any Acquired Company), in each case, whether payable prior to, at or following the Closing, (d) all amounts paid or payable by the Blocker or any Acquired Company to any current or former director, officer, employee, or other service provider of the Blocker or any Acquired Company to make whole, indemnify, or gross-up such individual in respect of Taxes incurred by such individual under Section 4999 of the Code as a result of the Transactions, but excluding any such amounts paid due to any action or Buyer of any of its Affiliates (including the Acquired Companies) following the Closing, (e) the employer’s portion of any social security, Medicare, unemployment or other employment, withholding or other payroll Taxes paid or payable with respect to any bonus or payment described in the foregoing clauses (b) and (d) (but excluding any amounts paid solely due to any action of Buyer or any of its Affiliates following the Closing), (f) any costs, fees or expenses arising from or relating to the Redemption or termination of the Voting Agreements, including any Taxes required to be paid with respect to such costs or expenses, (g) fifty percent (50%) of the costs of the D&O Insurance Policy, (h) fifty percent (50%) of Transfer Taxes, (i) fifty percent (50%) of all filing fees payable to any Governmental Body under any Antitrust Law or Foreign Investment Law pursuant to Section 8.3, (j) all Unapproved Specified Project Expenses and (k) either of the amounts set forth on Schedule 1.1(a) of the Company Disclosure Schedule. Company Transaction Expenses shall be reduced by (x) the amount by which any liability of the Blocker or any Acquired Company to make an actual payment of Tax in respect of the period in which the Closing (or the immediately following period or any earlier period) occurs is or will be reduced or eliminated, and any repayment of, or in respect of, Tax in the period in which the Closing occurs (or the immediately following period or any earlier period), as a result of the use or set-off of any Relief arising to the Blocker or any Acquired Company arising as a result of an item that itself constitutes a Company Transaction Expense (provided that no such Relief shall be taken into account to the extent such Relief is taken into account in determining Leakage), and (y) any amount in respect of VAT which is recoverable as input tax by the Blocker or any Acquired Company or representative member of the VAT group of which the Blocker or such Acquired Company is a member within the 12-month period following the Closing (less any third party costs and expenses reasonably and properly incurred in recovering such input tax). For the purposes of calculating the amount of the Company Transaction Expenses, whether VAT is recoverable as input tax and whether any liability to make any actual payment of Tax is or will be reduced or eliminated and whether any repayment of, or in respect of, Tax arises or will arise as a result of the use or set-off of any Relief shall be mutually determined by Buyer and the Seller Representative (each acting reasonably); provided, however, that to the extent Buyer and Seller Representative cannot resolve any dispute with respect to such determination, such dispute shall be resolved by the Independent Accounting Firm in accordance with Section 3.3(c). For the avoidance of doubt, “Company Transaction Expenses” shall not include (i) any amount included in Debt, Specified Debt, Debt Payoff Amount, Leakage or Permitted Leakage and (ii) any Buyer Expenses.
“Contract” means any contract, subcontract, agreement, indenture, note, bond, mortgage, loan, instrument, lease, license, sublicense, sublease or other binding arrangement or agreement, in each case, which is legally binding and currently in effect.
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“Data Processor” means any Person that Processes Personal Information on behalf of or at the direction of any Acquired Company, including, but not limited to, a “service provider,” “contractor,” or “processor,” as those terms are defined by Privacy Requirements.
“Debt” means, of any Person and as of any time, the aggregate amount of the following (including all accrued and unpaid interest and all prepayment penalties, breakage fees and exit fees that would be incurred in connection with the repayment thereof at such time), without duplication: (a) the outstanding principal amount of any indebtedness for borrowed money (other than trade payables arising in the ordinary course of business); (b) all other obligations evidenced by bonds, debentures or notes; (c) all capital or finance lease obligations that are classified as a capital or finance lease in the Financial Statements; (d) all direct obligations under letters of credit, performance bonds, surety bonds, bankers’ acceptances or similar facilities, in each case solely to the extent drawn; (e) the deferred purchase price related to the previous acquisition of any businesses by such Person (including any “earn-outs” but excluding current trade payables arising in the Ordinary Course of Business); (f) liabilities under interest rate, currency rate or commodity price protection, hedging, derivative or swap, collar, cap or similar arrangement, in each case net of any related assets, determined as if such arrangements were terminated at the applicable time of determination; and (g) any obligations of such Person to guarantee or otherwise provide collateral or credit support for any of the obligations described in clauses (a) through (f) on behalf of any Person other than, in the case of any Acquired Company, any other Acquired Company.
“Debt Financing Source” means, in its capacity as such, each Person (including lenders, arrangers, other additional arrangers, bookrunners, managers, agents, co-agents, financial institutions, institutional investors, underwriters, commitment parties or similar debt financing sources) providing a commitment to provide or arrange all or any part of the Debt Financing (or Replacement Financing) and their respective Affiliates, successors and assigns and such Person’s (and their respective Affiliates’, successors’ and assigns’) equityholders, members, employees, officers, directors, attorneys, agents or advisors, in each case, solely to the extent involved in the Debt Financing (or Replacement Financing); provided, that in no event shall Buyer, the Equity Financing Source, any Guarantor or any of their respective Affiliates be a Debt Financing Source.
“Debt Payoff Amount” means the aggregate principal amount of the Specified Debt, plus all accrued but unpaid interest, fees and other amounts payable thereon (including any premiums, penalties or other obligations relating thereto), in each case, calculated as of immediately prior to the Closing without giving effect to the Transactions, as set forth in the applicable Payoff Letters.
“Element MIP” means the Element Holdings, LP 2026 Option Plan, the Element Holdings, L.P. Equity Incentive Plan, 2024 Element Transaction Bonuses, 2025 Element Transaction Bonuses, 2026 Option Plan Agreement, and the 2018 Sale Bonus Program and all award agreements thereunder.
“Environmental Law” means any applicable Law relating to pollution; the protection of the environment, natural resources or, as it relates to exposure to Hazardous Materials, worker health and safety; or otherwise relating to Hazardous Materials.
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“Equity Securities” means (a) any share, capital stock, partnership, membership or similar interest in any Person and (b) any option, warrant, restricted stock, profits interest, right or other Contract to purchase or otherwise acquire any such interest in any Person referred to in clause (a) or security (including debt securities) convertible, exchangeable or exercisable thereto or therefor.
“Equity Value” means an amount equal to $327,500,000.
“ERISA” means the Employee Retirement Income Security Act of 1974.
“ERISA Affiliate” means any trade or business (whether or not incorporated) which together with any Acquired Company would be treated as a single employer under Section 414 of the Code or Section 4001 of ERISA.
“Escrow Agent” means Citibank, N.A., or such other escrow agent in the United States as may be mutually agreed by Buyer and the Seller Representative.
“Escrow Agreement” means an escrow agreement, to be entered into at the Closing by Buyer, the Seller Representative and the Escrow Agent, in form and substance reasonably satisfactory to Buyer and the Seller Representative.
“Escrow Amount” means an amount equal to $15,000,000.
“Escrow Funds” means, at any time, the amount then held in the non-interest-bearing escrow account established pursuant to the Escrow Agreement (the “Escrow Account”).
“Estimated Consideration” means (a) the Equity Value, minus (b) any Estimated Leakage, minus (c) the Expense Reserve Holdback Amount, minus (d) Estimated Company Transaction Expenses, minus (e) the Escrow Amount. For the avoidance of doubt, no amount, including any Company Transaction Expense, Debt, Specified Debt, Debt Payoff Amount or Leakage shall be included, deducted, recovered or otherwise taken into account more than once in determining the Estimated Consideration or any payment under this Agreement.
“Existing ABL Credit Agreement” means that certain Amended and Restated Credit and Guarantee Agreement, dated as of May 28, 2025 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, including any agreement or indenture extending the maturity of, refinancing, replacing, increasing or otherwise restructuring all or any portion of the indebtedness under such agreement or indenture or any successor or replacement agreement or indenture, together with all exhibits and schedules attached thereto), by and among, inter alios, Trivium Packaging Treasurer B.V., as a borrower, the other borrowers and other guarantors party thereto, the lenders from time to time party thereto, J.P. Morgan SE, as administrative agent, JPMorgan Chase Bank, N.A., as collateral agent, Citibank, N.A., as common ABL security agent and JPMorgan Chase Bank, N.A. and J.P. Morgan SE as swingline lenders.
“Existing Credit Agreements” means, collectively, the Existing ABL Credit Agreement and the Existing Term Loan Credit Agreement.
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“Existing Term Loan Credit Agreement” means that certain Credit and Guarantee Agreement, dated as of May 28, 2025 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, including any agreement or indenture extending the maturity of, refinancing, replacing, increasing or otherwise restructuring all or any portion of the indebtedness under such agreement or indenture or any successor or replacement agreement or indenture, together with all exhibits and schedules attached thereto), by and among, inter alios, Trivium Packaging Finance B.V., as the borrower, the other loan parties party thereto, the lenders from time to time party thereto, J.P. Morgan SE, as administrative agent, Citibank, N.A., London Branch, as fixed asset security agent and Citibank, N.A., as common ABL security agent.
“Expense Reserve Holdback Account” means the account established by the Seller Representative in respect of the Expense Reserve Holdback Amount.
“Expense Reserve Holdback Amount” means an amount equal to $500,000.
“Express Representations” means the representations and warranties (a) expressly and specifically set forth in Article IV, Article V, Article VI or in any certificate delivered by Sellers, the Blocker or any Acquired Company pursuant to Section 2.3(a)(i) or in any other Transaction Document (in each case, as qualified by the Company Disclosure Schedules) and (b) expressly and specifically set forth in Article VII, or in any certificate delivered by Buyer pursuant to Section 2.3(b)(i) or in any other Transaction Document.
“FDA” means the United States Food and Drug Administration and any successor regulatory authority having substantially the same function.
“Federal Food, Drug, and Cosmetic Act” means the Federal Food, Drug, and Cosmetic Act, 21 U.S.C. § 301 et seq., as amended from time to time, together with any rules, regulations, and requirements promulgated thereunder.
“Federal Trade Commission Act” means the Federal Trade Commission Act of 1914, 15 U.S.C. § 45 et seq., as amended from time to time, together with any rules, regulations, and requirements promulgated thereunder.
“Final Consideration” means (a) the Equity Value, minus (b) any Leakage, as finally determined pursuant to Section 3.3, minus (c) the Expense Reserve Holdback Amount, minus (d) Final Company Transaction Expenses, as finally determined pursuant to Section 3.3, minus (e) the Escrow Amount. For the avoidance of doubt, no amount, including any Company Transaction Expense, Debt, Specified Debt, Debt Payoff Amount or Leakage shall be included, deducted, recovered or otherwise taken into account more than once in determining the Final Consideration or any payment under this Agreement.
“Foreign Investment Laws” means any Laws of any jurisdiction that are designed or intended to screen, review, prohibit, restrict or regulate investments in, or acquisitions of control of or interests in, any Person, business or asset on the grounds of national security, public order or public interest, including foreign direct investment screening Laws.
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“Fraud” means intentional common law fraud under Delaware law committed by a Party in the making of the Express Representations. For the avoidance of doubt, the term “Fraud” does not include any claim for equitable fraud, promissory fraud, unfair dealings fraud, or any torts (including a claim for fraud) based on negligence or recklessness, and only a Person committing such Fraud shall be responsible for such Fraud.
“FTC” means the United States Federal Trade Commission and any successor regulatory authority having substantially the same function.
“GDPR” means the EU General Data Protection Regulation 2016/679 (“EU GDPR”) as implemented by countries within the European Economic Area and the EU GDPR as retained as law in England and Wales by the European Union (Withdrawal) Act 2018 (“UK GDPR”) (as applicable to the Processing).
“Governmental Body” means any domestic or foreign national, state, multi-state, supranational, provincial, territorial, municipal or other local government, any subdivision, agency, commission or authority thereof, exercising any regulatory or taxing authority or instrumentality (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any court, tribunal, administrative agency, commission or arbitrator of competent jurisdiction.
“Hazardous Materials” means (a) any materials, substances or wastes defined, listed, classified, or regulated under any applicable Environmental Law as “toxic,” “hazardous,” a “pollutant” or “contaminant” or any other words of similar meaning or regulatory effect or for which standards of conduct or liability are otherwise imposed under applicable Environmental Law and (b) petroleum and any petroleum by-products or derivatives, asbestos and asbestos-containing materials, polychlorinated biphenyls, lead-based paint, radon, and per- and poly-fluoroalkyl substances.
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976.
“IFRS” means the IFRS Accounting Standards as adopted by the European Union.
“Information Security Program” means an information security program that materially complies with Privacy Requirements, that when appropriately implemented and maintained would constitute reasonable security procedures and practices considering the nature of the Acquired Companies and Personal Information being Processed that includes: (a) administrative, technical and physical safeguards to protect the security, confidentiality, availability, and integrity of any Personal Information owned, controlled, maintained, held, or Processed by any Acquired Company; (b) disaster recovery, business continuity, incident response, or security plans; and (c) procedures designed to protect against Security Incidents, malicious code, and against loss, misuse, unauthorized access to, and disruption of, the Processing of Personal Information.
“Intellectual Property” means all intellectual property and intellectual property rights in any jurisdiction throughout the world, including those arising from the following: (a) patents and applications therefor, including continuations, divisionals, continuations-in-part, and reissues of patent applications; (b) trademarks, service marks, trade names, service names, brand names, trade dress rights, logos, Internet domain names and corporate names, together with the goodwill associated with any of the foregoing, and all applications, registrations and renewals thereof; (c) copyrights and registrations and applications therefor and works of authorship; and (d) trade secrets.
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“Interest Rate” means (a) the rate of interest published from time to time by The Wall Street Journal, Eastern Edition, as the “prime rate” at large U.S. money center banks during the period from the date that payment is due pursuant to this Agreement to the actual date of payment, plus (b) two percent (2.0%).
“International Trade Laws and Regulations” means all applicable Sanctions, Export Control Laws, and customs, import and antiboycott Laws.
“IRS” means the United States Internal Revenue Service and, to the extent relevant, the United States Department of Treasury.
“IT Systems” means the hardware, equipment, electronics, servers, workstations, routers, hubs, switches, data communication lines, network and telecommunications equipment, wide area network, and other data communications or information technology equipment (including any machine learning, deep learning, and other AI technologies), owned or leased by or licensed to the Acquired Companies.
“Knowledge of Buyer” means the actual knowledge (and not imputed or constructive knowledge), without any duty of inquiry or investigation, of any of Eric Baroyan and Frank Hogan.
“Knowledge of the Company” means the actual knowledge (and not imputed or constructive knowledge), after due inquiry of direct reports, of any of Michael Mapes, Stefan Siebert, Tjeerd Wassenaar, Cris Motta and Floor van Griensven (such individuals, the “Knowledge Group”).
“Law” means any applicable foreign, federal, state, provincial, territorial or local law (including common law), statute, code, ordinance, rule, regulation, directive, Order or other enforceable requirement, in each case, promulgated or issued by any Governmental Body.
“Leakage” means, without duplication, any of the following that occurs, or is paid, accrued or incurred or payable during the Locked Box Period (whether or not such amount is actually paid on or after the Closing), in each case, other than Permitted Leakage:
(a) any dividend, or distribution of profits or assets or any other payment (whether in cash or in-kind and whether actual or deemed) whether paid, declared, authorized or made by the Blocker or any of the Acquired Companies to or for the benefit of any Leakage Party;
(b) any payment in respect of the redemption, repurchase or repayment of any equity interests of the Blocker or any Acquired Company held by a Leakage Party, or warrants or other rights to acquire equity interests of any Acquired Company held by a Leakage Party, or any other return or repayment of share or loan capital by the Blocker or any Acquired Company to or for the benefit of a Leakage Party, including any repayment of principal of, or payment of interest on, any loan or other indebtedness owed by the Blocker or any Acquired Company to any Leakage Party;
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(c) any amount owed or due to the Blocker or any Acquired Company by any Leakage Party, or any monetary claim of the Blocker or any Acquired Company against any Leakage Party, that is waived, forgiven, discounted or released;
(d) any payment obligation or other monetary liability being assumed, incurred or discharged (or any payment by reason of entering into any guarantee, indemnity or security given in respect thereof) by the Blocker or any Acquired Company for the benefit of any Leakage Party, including any payment to any other Person to whom, or for whose benefit, any payment is made, or any asset, right or other value is transferred or provided, by the Blocker or any Acquired Company at the direction, at the request or on behalf of any Leakage Party in satisfaction or discharge of any liability or obligation of any Leakage Party that is not a liability or obligation of the Blocker or any Acquired Company;
(e) the amount of any fees (including management, professional services, monitoring, advisory, supervisory or other Seller or director’s fees), bonuses, compensation or other amounts of a similar nature paid by the Blocker or any Acquired Company to any Leakage Party;
(f) any transfer, surrender, purchase or disposal of any Relief by the Blocker or any Acquired Company to or for the benefit of any Leakage Party, or any acquisition or purchase by the Blocker or any Acquired Company of any asset or service from any Leakage Party for value, in each case, other than on arm’s-length terms and in the Ordinary Course of Business (the amount of Leakage, if any, for purposes of this clause (f) shall be the amount by which the fair market value of the asset, right, Relief or service transferred by the Blocker or an Acquired Company exceeds the consideration actually received, or the consideration paid by the Blocker or an Acquired Company exceeds the fair market value of the asset, right or service received);
(g) any payments made to the Firmoront Blocker Seller in connection with the Redemption;
(h) the amounts as described on Schedule 1.1(b) (the “Specified Leakage”);
(i) any Contract, commitment or arrangement made or entered into by the Blocker or any Acquired Company during the Locked Box Period to do or give effect to any matter referred to in clauses (a) to (g) above; and
(j) any Tax, or amount in respect of Tax, becoming payable by or otherwise arising to or incurred (or Tax or amount in respect of Tax that would have arisen or been payable or incurred but for the use or set-off of any Buyer’s Relief) by the Blocker or any Acquired Company as a result of any of the payments or matters described in clauses (a) to (i) above, other than any amount in respect of VAT which is recoverable as input tax by the Blocker or any Acquired Company or representative member of the VAT group of which the Blocker or such Acquired Company is a member within the 12-month period following the Closing (less any third party costs and expenses reasonably and properly incurred in recovering such input tax) and provided that, in each case, the amount of any Leakage shall be reduced by an amount equal to: (x) the amount by which any liability of the Blocker or any Acquired Company to make an actual payment of Tax in respect of the period in which the Closing occurs (or the immediately following period or any earlier period) is or will be reduced or eliminated and/or (y) any repayment of, or in respect of, Tax in the period in which the Closing occurs (or the immediately following period or any earlier period), in each
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case, as a result of the use or set-off of any Relief which arises to the Blocker or any Acquired Company as a result of such Leakage. For the purposes of calculating the amount of Leakage, whether any Tax, or amount in respect of Tax, is payable, arises or is incurred (or which would have been but for the use or set-off of any Buyer’s Relief), whether VAT is recoverable as input tax, whether any liability to make any actual payment of Tax is or will be reduced or eliminated and whether any repayment of, or in respect of, Tax arises or will arise as a result of the use or set-off of any Relief shall be mutually determined by Buyer and the Seller Representative (each acting reasonably); provided, however, that to the extent Buyer and Seller Representative cannot resolve any dispute with respect to such determination, such dispute shall be resolved by the Independent Accounting Firm in accordance with Section 3.3(c).
“Leakage Party” means (a) any Seller or any Person which has owned any of the Shares since the Locked Box Date, (b) any Affiliate of any Person described in clause (a) (including, for the avoidance of doubt, in the case of the Sponsor, any fund or investment vehicle managed, advised or controlled by the Sponsor or any of its Affiliates and any controlled portfolio or investee companies of the Sponsor), (c) any director, officer or employee of (i) any Person described in clause (a) or (b) or (ii) any Blocker or Acquired Company which has been appointed or elected at the direction of any Person described in clause (a) or (b), or (d) any other direct or indirect equityholders of any Acquired Company (excluding any Acquired Company) in each case, acting in such capacity or receiving the relevant payment or benefit in such capacity (the Persons described in clauses (b) and (c) with respect to any Seller, such Seller’s “Related Leakage Parties”); provided that in no event shall the Blocker, the Company or any Company Subsidiary be a Leakage Party.
“Legal Proceeding” means any judicial, administrative, investigative or arbitral actions, suits, claims, actions, cause of actions, litigations, charges, complaints, examinations, hearings, arbitrations, investigations, summons, audits, prosecutions or proceedings (public or private, in law or in equity) by or before a Governmental Body.
“Lien” means any lien, encumbrance, encroachment, pledge, mortgage, deed of trust, trust deed, security interest, lease, license, covenant, title or survey defect, right of way, charge, option, right of first refusal or first offer, easement, servitude or other restriction.
“Locked Box Accounts” means the Audited Financial Statements as at the Locked Box Date in the agreed form.
“Locked Box Date” means December 31, 2025.
“Locked Box Period” means the period from (and including) the Locked Box Date and ending at the time of Closing on the Closing Date.
“Lookback Date” means January 1, 2023.
“Material Adverse Effect” means any effect, change, event, occurrence, condition, result, state of facts, development or circumstances (any such item, an “Effect”) that (i) individually or in the aggregate with any other Effect, has or would reasonably be expected to have, a material adverse effect on the business, financial condition or results of operations of the Acquired Companies, taken as a whole, or (ii) would reasonably be expected to prevent, materially
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impair or materially delay (or has so prevented or materially impaired or materially delayed) the ability of the Sellers to consummate the Transactions; provided, however, that solely with respect to clause (i), no Effect caused by, resulting or arising from, in connection with or attributable or relating to any of the following, either alone or in any combination, shall constitute, and none of the following shall be taken into account in determining whether there has been or will be, a Material Adverse Effect: (a) any Effect affecting the economy of the United States, generally, including changes in the credit, debt, capital or financial markets (including changes in interest or exchange rates, changes as a result of executive orders or the enforcement of any new tariffs) or the economy of any region or country in which any Acquired Company operates or conducts business; (b) any Effect affecting the industries in which any Acquired Company operates or conducts business; (c) acts of god, weather, meteorological conditions or climate, natural disasters (including hurricanes, storms, tornados, flooding, earthquakes, volcanic eruptions or similar occurrences), public health emergencies, epidemics, pandemics, disease outbreaks, widespread occurrences of infectious disease, federal, state or local shelter-in-place or lockdown orders, global, national or regional political or social actions or conditions, including hostilities, military actions, political instability, acts of terrorism or war or any escalation or material worsening of any such hostilities, military actions, political instability, acts of terrorism or war whether commenced before or after the Put Option Date or any other extraordinary or unusual event that is outside of the control of any Acquired Company or its Affiliates (the matters set forth in this clause (c) being referred to as “Emergencies”); (d) any actual or potential sequester, stoppage, shutdown, default or similar event or occurrence by or involving any Governmental Body; (e) any failure, in and of itself, by any Acquired Company to meet any internal or published projections, forecasts or revenue or earnings predictions for any period (it being understood that any facts or occurrences giving rise to such failure may be taken into account in determining whether there has been or will be, a Material Adverse Effect (to the extent such facts or occurrences are not otherwise excluded from this definition of Material Adverse Effect)); (f) compliance with the terms of, or the taking of any action required by, this Agreement or in connection with the Transactions; (g) the failure of Buyer to consent (where such consent is unreasonably withheld, conditioned or delayed) to any of the actions contemplated in Section 8.2(b) following a request for such consent or any action taken at the express written request of Buyer; (h) the announcement of the execution of the Put Option Agreement or this Agreement, or the pendency of the Transactions, including the effects of the Transactions on relationships with customers, suppliers, Governmental Bodies, employees, or other third-party relationships; (i) any labor strikes, labor stoppages, labor slowdowns, lockouts or labor disputes; (j) any change in Law, accounting requirements or principles or IFRS or interpretation thereof; (k) any breach by Buyer of its obligations under this Agreement, unless, in the cases of clauses (a)-(d) or (j) above, such Effects would reasonably be expected to have a materially disproportionate impact on the financial condition, business or results of operations of the Acquired Companies, taken as a whole, relative to other affected participants in the industries in which any Acquired Company conducts business (in which case, only the incremental disproportionate impact shall be taken into account in determining whether there has been a Material Adverse Effect).
“MetalCo Material Adverse Effect” means a “Material Adverse Effect” as defined in the Project Vulcan Transaction Agreement.
“MIHBV” means the private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) to be incorporated under the laws of the Netherlands by Silgan International Holdings B.V. prior to the Closing in accordance with the Project Vulcan Transaction Agreement, which will be an indirect wholly owned subsidiary of Buyer as of the Closing.
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“MIP” means the Trivium Packaging B.V. Management Incentive Plan and all award agreements entered into thereunder.
“Notarial Transfer Deeds” means the notarial instruments (notariële akten) in which instruments (a) the Exal Seller transfers (levert) the Exal Seller Blocker Shares to Buyer (or its designee pursuant to Section 2.1), Buyer (or such designee) accepts (aanvaardt) such transfer (levering) and the Blocker acknowledges (erkent) such transfer (levering), and (b) the Ardagh Seller transfers (levert) the Ardagh Seller Shares to Buyer (or its designee pursuant to Section 2.1), Buyer (or such designee) accepts (aanvaardt) such transfer (levering) and the Company acknowledges (erkent) such transfer (levering), which deeds are to be executed in front of the Notary, substantially in the form attached hereto as Exhibit A.
“Notary” means any civil law notary (notaris) of Lexence N.V., or such civil law notary’s deputy or successor.
“Order” means any order (including any temporary order), injunction, judgment, decree (including any consent decree or similar agreed order or judgment), ruling, writ, stipulation, assessment, determination or award issued or entered by a Governmental Body.
“Ordinary Course of Business” means the ordinary and usual course of day-to-day operations of the Acquired Companies consistent with past practice, taken as a whole, during the 12-month period prior to the Locked Box Date; provided that actions or inactions that a reasonably prudent operator (seeking in good faith to exercise and perform its obligations and exercising the degree of knowledge, skill, diligence, prudence and foresight that would reasonably be expected from a skilled and experienced operator engaging in such function) of a business in similar circumstances in the industries in which the Acquired Companies operate would take or omit to take, in light of the facts known as of such time, in response to the occurrence of any circumstances listed in clauses (a) through (c) of the definition of “Material Adverse Effect” (including, for the avoidance of doubt, any Emergency) shall, in each case, be considered to have been taken in the Ordinary Course of Business.
“Organizational Documents” means the charter, memorandum, certificate of incorporation, certificate of formation, limited liability company agreement, stockholders agreement, partnership agreement, articles of incorporation, articles of association, bylaws or other similar document of a Person, as may be amended, restated or otherwise modified from time to time.
“Owned IP” means all Intellectual Property owned by or purported to be owned by the Acquired Companies.
“Permits” means any approvals, authorizations, consents, licenses, permits, certificates, registrations, waivers, or exemptions issued by a Governmental Body.
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“Permitted Leakage” means:
(a) the salaries, compensatory payments, fees and all other remuneration (including expenses incurred in connection with the performance of services) and bonuses, emoluments and other entitlements incurred, paid or payable to any employee, director, consultant or officer of any Acquired Company other than to any Leakage Parties; provided, that any director, consulting or other similar fees incurred, paid or payable to the Persons set forth on Schedule 1.1(c) (the “Non-Executive Directors”) during the Locked Box Period shall be deemed to constitute Permitted Leakage, in each case, (A) in the Ordinary Course of Business and, if occurring following the Put Option Date, solely to the extent permitted by Section 8.2(b), and (B) in accordance with their existing employment agreements, director or consulting agreements with any Acquired Company (as in effect on the Put Option Date);
(b) any payment made or agreed to be made by or on behalf of any Acquired Company as required or expressly permitted by this Agreement or any other Transaction Document (other than the Redemption), together with any applicable Taxes or amount in respect of Taxes (to the extent payment of such Taxes is required or expressly permitted by this Agreement or any other Transaction Document), in each case, subject to any caps or limitations set forth herein;
(c) any Leakage incurred at the prior written request of, or with the prior written consent of, Buyer or any of its Affiliates;
(d) payments made (or to be made) by any Acquired Company in the Ordinary Course of Business and on arm’s-length terms to any portfolio companies affiliated with the Sponsor or the Ardagh Seller;
(e) (i) any annual dividends in respect solely of calendar years occurring following the Locked Box Date which are declared, paid or made or agreed to be paid or made or accrued and owing, by the Blocker or any Acquired Company to the Firmoront Blocker Seller (up to a maximum amount of the equivalent of CAD 10,000 in the aggregate each year the Firmoront Blocker Seller held the Firmoront Seller Blocker Shares) and (ii) the consideration payable to the Firmoront Blocker Seller in connection with the Redemption, not to exceed $50,000 in the aggregate (inclusive of any Taxes thereon);
(f) any amounts in respect of which an accrued expense or provision (including, for the avoidance of doubt, any applicable Taxes or amount in respect of Taxes) has been specifically accrued for in the Locked Box Accounts (up to the amount of such accrual or provision), including any payment, settlement or utilization thereof in the Ordinary Course of Business;
(g) any Leakage which has been reimbursed in cash or otherwise made good (to the reasonable satisfaction of Buyer) by any Leakage Party to Buyer, the Blocker or the Acquired Companies without cost or liability to Buyer, the Blocker or the Acquired Companies; and
(h) any Tax or amount in respect of Tax becoming payable by or otherwise arising to or incurred by the Blocker or any Acquired Company in connection with any of the payments described in clauses (a), (c), (d) or (e) above, except if and to the extent that such Tax has already been taken into account under such clauses.
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Notwithstanding the foregoing, neither (i) any amounts paid, accrued or incurred, during the Locked Box Period (whether or not such amount is actually paid on or after the Closing) in respect of any of the categories of expenses set forth in the definition of “Company Transaction Expenses”, nor (ii) any Specified Leakage shall, in any case, be considered Permitted Leakage.
“Permitted Liens” means (a) all defects, exceptions, restrictions, easements, rights of way and encumbrances disclosed in current policies of title insurance that have been made available to Buyer or that do not materially adversely reduce the value or impact the current use of the Owned Real Property subject thereto; (b) Liens incurred in the Ordinary Course of Business securing liabilities which are not yet delinquent and are reflected or reserved against in the Locked Box Accounts prepared in accordance with IFRS; (c) Liens for Taxes, assessments or other governmental charges not yet delinquent, the amount or validity of which is being contested in good faith by appropriate proceedings and for which adequate reserves have been established and reflected in the Locked Box Accounts prepared in accordance with IFRS; (d) landlords’, mechanics’, carriers’, workers’, repairers’ and similar Liens arising or incurred in the Ordinary Course of Business for amounts which are not yet delinquent or the amount or validity of which is being contested in good faith by appropriate proceedings and for which adequate reserves have been established and reflected in the Locked Box Accounts prepared in accordance with IFRS; (e) easements, rights of way, zoning, building code, entitlement and other land use and environmental Laws that do not materially adversely reduce the value of the Owned Real Property or materially and adversely impact the current use of the Real Property subject thereto; (f) title of a lessor under a capital or operating lease, and leases, subleases, and similar transactions in the Ordinary Course of Business; (g) non-exclusive licenses to Intellectual Property granted in the Ordinary Course of Business; (h) Liens that will be released in connection with the Closing; (i) Liens under applicable securities Laws; and (j) Liens set forth on Schedule 1.1(d) of the Company Disclosure Schedules.
“Person” means any individual, corporation, partnership, limited liability company, firm, joint venture, association, joint-stock company, trust, unincorporated organization, Governmental Body or other entity.
“Personal Information” means all information that identifies an individual person, in addition to any definition for “personal information” or any similar term provided by applicable Privacy Laws (e.g., “personal data”, “personally identifiable information” or “PII”).
“PoA” means a written power of attorney, duly signed (and, if so requested by the Notary, legalized, with such legalization confirmed by apostille (if required)), including (with respect to any non-Dutch entity) a confirmation of authority (or other satisfactory evidence of authority, in the Notary’s sole discretion), granted to each (candidate) civil law notary and notarial employee of the Notary’s firm.
“Privacy Laws” means all applicable Laws relating to the Processing of Personal Information by the Acquired Companies, including: (a) the CAN-SPAM Act of 2003, 15 U.S.C. § 7701, et seq.; the Telephone Consumer Protection Act (“TCPA”), 47 U.S.C. § 227, et seq.; the Fair Credit Reporting Act, 15 U.S.C. § 1681, et seq.; the Electronic Communications Privacy Act, 18 U.S.C. §§ 2510-22; the Stored Communications Act, 18 U.S.C. §§ 2701-12, et seq.; the California Consumer Privacy Act, Cal. Civ. Code § 1798.100, et seq.; the California Customer
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Records Act, Cal. Civ. Code §§ 1798.80 to 84; California Online Privacy Protection Act, Cal. Bus. & Prof. Code § 22575, et seq.; the Virginia Consumer Data Protection Act, Va. Code Ann. § 59.1-575, et seq.; the GDPR; the UK Data Protection Act 2018 as amended by the UK Data (Use and Access) Act 2025; the UK Privacy and Electronic Communications (EC Directive) Regulations 2003; the EU e-Privacy Directive 2002/58/EC as implemented by countries within the European Economic Area; U.S. state and federal Laws that prohibit unfair or deceptive acts and practices, such as the Federal Trade Commission Act, 15 U.S.C. § 45, et seq.; and all other Laws relating to data protection, information security, Security Incident notification, social security number protection, outbound communications or electronic marketing, use of electronic data and privacy matters (including online privacy) in any applicable jurisdictions.
“Privacy Requirements” means all Privacy Laws, Acquired Company Privacy Policies, and Contracts relating to the privacy, confidentiality, integrity, availability, collection, use, access, Processing, protection, Security Incident notification, deletion or disclosure of any Personal Information by the Acquired Companies.
“Processing”, “Process” or “Processed” means any operation or set of operations performed on any Personal Information, whether or not by automated means, including but not limited to receipt, collection, compilation, use, storage, combination, sharing, safeguarding, disposal, erasure, destruction, disclosure or transfer.
“Project Vulcan Closing” means the Closing under and as defined in the Project Vulcan Transaction Agreement.
“Project Vulcan Transaction Agreement” means that certain Transaction Agreement, dated as of the Put Option Date, by and among SHI, Fund IX VL Holdings and Buyer.
“Project Vulcan Transaction Documents” means the Project Vulcan Transaction Agreement and the other Transaction Documents (as defined in the Project Vulcan Transaction Agreement).
“Project Vulcan Transactions” means the transactions contemplated by the Project Vulcan Transaction Documents.
“Real Property” means, collectively, the Leased Real Property and the Owned Real Property.
“reasonable best efforts” shall mean the good faith efforts that a prudent Person desirous of achieving a result would use in similar circumstances to achieve such result as promptly as reasonably practicable, including by taking all reasonable steps within its control; provided, however, that a Person required to use its reasonable best efforts will not be required to make any material change to its business or take any other action (including expend material funds or otherwise incur any material burden) or take actions, in each case, that would result in a materially adverse change to (i) the Acquired Companies taken as a whole, or (ii) in benefits to such Person under this Agreement or any other Transaction Document.
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“Redemption Agreement” means the redemption agreement to be entered into at the Closing by and among the Blocker, the Exal Seller, the Firmoront Blocker Seller, Exal Holdings International B.V., Trivium Packaging US Holding and Trivium Aluminum Packaging USA Corporation in form and substance reasonably satisfactory to Buyer and the Seller Representative (to be negotiated in good faith and finalized in accordance with Section 8.25(a)), pursuant to which (i) the parties thereto shall effect the Redemption contemporaneously with the consummation of the Transactions, (ii) the Exal Seller and the Firmoront Blocker Seller shall make, as of the Closing Date and in favor of Buyer, representations and warranties substantially to the effect of those set forth in Section 4.9(a), Section 4.9(b) and Section 4.9(d), and (iii) the Exal Seller and the Firmoront Blocker Seller shall undertake, in favor of Buyer, the Blocker and the Acquired Companies, to execute and deliver such further instruments and take such further actions following the Closing as Buyer may reasonably request to give full effect to the Redemption and the termination of the Voting Agreements, at the Sellers’ cost, in each of clauses (ii) and (iii), with Buyer being a party thereto or an express third-party beneficiary entitled to enforce the same directly, together with all other agreements, instruments, resolutions, consents, notarial deeds and other documents entered into, adopted or executed in connection therewith in order to effect the Redemption.
“Related Claims” means any claims, causes of action or Legal Proceedings of any kind or any nature (whether at law or in equity, based upon contract, tort, statute, based upon any theory that seeks to impose liability of any Party against its owners or Affiliates or otherwise) that may be based upon, arise out of or in connection with the Transactions, this Agreement or any Transaction Document or the negotiation, execution, performance, breach, interpretation, construction, validity or enforcement of this Agreement or any Transaction Document (including any claim, cause of action or Legal Proceeding based upon, arising out of or in connection with any representation or warranty made or alleged to be made in or in connection with, or as an inducement to enter into, this Agreement or any Transaction Document).
“Related Person” means, with respect to any Person, such Person’s Affiliates, and its and its Affiliates’ former, current or future stockholders, equityholders, partners, officers, managers, directors and employees.
“Release” means any release, spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping, depositing, migrating, or disposing of any Hazardous Material in, onto or through the environment, including the abandonment or discarding of any Hazardous Material in barrels, drums, or other closed receptacles.
“Relief” means any relief, loss, allowance, exemption, set-off, deduction or credit in computing Tax, or profits, income, or gains for Tax purposes and any repayment or refund of, or in respect of, Tax.
“Representatives” means, with respect to any Person, such Person’s equityholders, partners, members, officers, managers, directors, employees, consultants, agents, attorneys, accountants, advisors, financing sources and other representatives.
“Required Information” means (a) the audited consolidated balance sheet of the Acquired Companies as of December 31, 2026, together with the related audited consolidated statements of operations and cash flows of the Acquired Companies for the fiscal year then ended, and (b) the unaudited consolidated balance sheet of the Acquired Companies as of the last day of, and the related unaudited consolidated statements of operations and cash flows of the Acquired Companies for, each fiscal quarter (other than the fourth fiscal quarter of any fiscal year) ending after June 30, 2026 and at least 60 days prior to the Closing Date.
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“Sanctioned Jurisdiction” means a country or territory that is itself the subject or target of comprehensive, country-wide or territory-wide Sanctions (as of the Put Option Date, Cuba, Iran, North Korea, the Crimea, Kherson, and Zaporizhzhia regions of Ukraine, the so-called Donetsk People’s Republic region of Ukraine, and the so-called Luhansk People’s Republic region of Ukraine).
“Sanctioned Party” means any Person that is: (a) listed on any Sanctions List; (b) located in, ordinarily resident in, headquartered in or incorporated or organized under the laws of, a Sanctioned Jurisdiction; (c) a government, agency or instrumentality of a Sanctioned Jurisdiction; (d) directly or indirectly owned or controlled by (as such terms are defined and interpreted under the relevant Sanctions and Export Control Laws), or otherwise acting on behalf or at the direction of, any Persons described in (a)-(c); or (e) otherwise a target of Sanctions or Export Control Laws.
“Sanctions” means any economic, financial or trade sanctions Laws, embargoes or restrictive measures administered, enacted or enforced by the United States, the European Union and each of its member states, the United Kingdom, the United Nations Security Council and any other applicable Governmental Body that administers, enacts or enforces Sanctions.
“Sanctions List” means the Specially Designated Nationals and Blocked Persons List and Consolidated Sanctions List maintained by the U.S. Department of the Treasury’s Office of Foreign Assets Control, the Denied Persons List, Entity List and Military End-User List maintained by the U.S. Department of Commerce’s Bureau of Industry and Security, the Consolidated List of Persons, Groups and Entities Subject to EU Financial Sanctions maintained by the European Commission, the United Kingdom Sanctions List maintained by the Foreign, Commonwealth and Development Office, the United Nations Security Council Consolidated List and any other list of Persons with whom transactions or dealings are restricted or prohibited under the Laws of the United States, the European Union and each of its member states, the United Kingdom or any other applicable jurisdiction (in all cases as supplemented, amended or substituted from time to time).
“Security Incident” means (any event or series of events leading to) any unauthorized Processing of Personal Information, any unauthorized access, security compromise or disruption to the Acquired Companies’ IT Systems or any “personal data breach” or any incident that requires notification to any Person, Governmental Body or any other entity under Privacy Laws.
“Seller Fundamental Representations” means those representations and warranties set forth in Section 4.1, Section 4.2, Section 4.3, Section 4.4(b) and Section 4.6.
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“Senior First Lien Secured Indenture” means the Indenture for Trivium Packaging Finance B.V.’s €700,000,000 aggregate principal amount of 6.625% Senior First Lien Secured Euro Notes due 2030 and $480,000,000 aggregate principal amount of 8.250% Senior First Lien Secured Dollar Notes due 2030 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, including any agreement or indenture extending the maturity of, refinancing, replacing, increasing or otherwise restructuring all or any portion of the indebtedness under such agreement or indenture or any successor or replacement agreement or indenture, together with all exhibits and schedules attached thereto), dated as of May 28, 2025, by and among Trivium Packaging Finance B.V., as the issuer, Trivium Packaging B.V., as the company, the guarantors party thereto, GLAS Trust Company LLC, as trustee and paying agent, Citibank, N.A., London Branch, as security agent, Citibank, N.A., as common ABL security agent and GLAS Trust Company LLC, as registrar and transfer agent.
“Senior Second Lien Secured Indenture” means the Indenture for Trivium Packaging Finance B.V.’s $600,000,000 aggregate principal amount of 12.250% Senior Second Lien Secured Notes due 2031 (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, including any agreement or indenture extending the maturity of, refinancing, replacing, increasing or otherwise restructuring all or any portion of the indebtedness under such agreement or indenture or any successor or replacement agreement or indenture, together with all exhibits and schedules attached thereto), dated as of May 28, 2025, by and among Trivium Packaging Finance B.V., as the issuer, Trivium Packaging B.V., as the company, the guarantors party thereto, GLAS Trust Company LLC, as trustee and paying agent, Citibank, N.A., London Branch, as security agent, Citibank, N.A., as common ABL security agent and GLAS Trust Company LLC, as registrar and transfer agent.
“Senior Secured Notes Indentures” means, collectively, the Senior First Lien Secured Indenture and the Senior Second Lien Secured Indenture.
“Sherman Act” means the Sherman Antitrust Act of 1890.
“Specified Contract” means the Contract set forth on Schedule 1.1(e) of the Company Disclosure Schedules.
“Specified Debt” means the Debt set forth on Schedule 1.1(f) of the Company Disclosure Schedules.
“Specified Project Budget” means the aggregate forecasted costs to be paid net of any proceeds to be received in connection with Specified Projects as set forth on Schedule 1.1(g)(i) of the Company Disclosure Schedules (the “Scheduled Specified Projects”).
“Specified Project Cap” means an amount equal to 125% of the Specified Project Budget.
“Specified Project Costs” means the costs and capital expenditures as forth on Schedule 1.1(g)(ii) of the Company Disclosure Schedules.
“Specified Project Termination Costs” means the costs and capital expenditures as forth on Schedule 1.1(g)(iii) of the Company Disclosure Schedules.
“Specified Projects” means the plans, programs and projects of the Acquired Companies as set forth on Schedule 1.1(g)(iv) of the Company Disclosure Schedules.
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“Sponsor” means Ontario Teachers’ Pension Plan.
“Subsidiary” means, with respect to any Person, any corporation of which a majority of the total voting power of shares of stock entitled (without regard to the occurrence of any contingency) to vote in the election of directors, managers or trustees thereof is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof, or any partnership, limited liability company, association or other business entity (other than a corporation) of which a majority of the partnership, limited liability company or other similar ownership interest is at the time owned or controlled, directly or indirectly, by such Person or one or more of the other Subsidiaries of such Person or a combination thereof. For purposes of this definition, a Person is deemed to have a majority ownership interest in a partnership, limited liability company, association or other business entity (other than a corporation) if such Person is allocated a majority of the gains or losses of such partnership, limited liability company, association or other business entity or is or controls the managing director, managing member or general partner of such partnership, limited liability company, association or other business entity.
“Tax” or “Taxes” means: (a) all federal, state, local, foreign and other income, gross receipts, capital, sales, use, production, ad valorem, value added, transfer, franchise, registration, profits, inventory, capital stock, license, lease, service, service use, withholding, payroll, employment, social security, unemployment, estimated, excise, severance, environmental, stamp, occupation, premium, property (real or personal), real property gains, windfall profits, customs, duties and any other taxes, fees, imposts, levies, assessments or charges of any kind whatsoever in the nature of (or similar to) taxes, whether disputed or not; and (b) any liability for amounts described in clause (a) of this definition as a result of being or having been a member of any group of corporations that files Tax Returns on a combined, consolidated, unitary or similar basis, as a result of any obligation under any agreement or arrangement, or as a result of being liable for another Person’s Taxes as a transferee or successor, by Contract or otherwise, together with, in the case of each of clauses (a) and (b), any interest, penalties, fines and additions with respect thereto and any interest in respect of such additions or penalties.
“Tax Proceeding” means any audit, examination, contest, litigation, investigation, inspection, questionnaire, request of information or other Legal Proceeding with or against any Taxing Authority (including any mutual agreement procedure or competent authority proceeding) relating to Taxes.
“Tax Return” means any return, election, declaration, report, claim for refund, information return or statement or other document filed or required to be filed with any Taxing Authority with respect to any Taxes, including any schedule or attachment thereto and any amendment thereof, and including any amended return or declaration of estimated Tax and, where permitted or required, any combined, consolidated or unitary returns for any group of entities that includes the Acquired Companies.
“Taxing Authority” means the IRS and any other Governmental Body exercising any authority to impose, assess or collect any Tax or any other authority exercising Tax regulatory authority.
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“Transaction Documents” means this Agreement, the Company Disclosure Schedules, the Equity Commitment Letter, the Limited Guarantees, the Debt Commitment Letter, the Notarial Transfer Deeds, the Redemption Agreement, the Put Option Agreement, the Restrictive Covenant Agreements and all other agreements, documents and instruments contemplated by this Agreement or the foregoing or otherwise executed and delivered in connection with the Transactions.
“Transactions” means the transactions contemplated by the Transaction Documents, excluding for the avoidance of doubt, the Project Vulcan Transactions.
“Transfer Taxes” means any real property transfer, sales, use, stamp, documentary, recording, registration, conveyance, stock transfer, change-of-control, intangible property transfer, personal property transfer, gross receipts, duty, securities transactions or similar fees or Taxes or governmental charges (together with any interest or penalty, addition to Tax or additional amount imposed) as levied by any Taxing Authority or other Governmental Body in connection with the Transactions, including (a) any payments made in lieu of any such Taxes or governmental charges that become payable in connection with the Transactions and (b) all notarial fees and all registration, stamp and transfer taxes and duties or their equivalents in all jurisdictions where such fees, taxes and duties are payable as a result of the Transactions.
“Unapproved Specified Project Expenses” means all Specified Project Costs paid or to be paid, net of proceeds received or to be received, by the Blocker or any Acquired Company following the Locked Box Date in excess of the Specified Project Cap, other than Specified Project Costs in excess of the Specified Project Cap to which Buyer has consented (or is deemed to have consented) in accordance with Section 8.26.
“VAT” means (a) any Tax imposed by the United Kingdom Value Added Tax Act 1994; (b) any Tax imposed in compliance with the council directive of 28 November 2006 on the common system of value added tax (EC Directive 2006/112) and legislation and regulations supplemental thereto; and (c) any other Tax of a similar nature (including sales tax, use tax, consumption tax and goods and services tax), whether imposed in the United Kingdom or in a member state of the European Union in substitution for, or levied in addition to, such tax referred to in clause (a) or (b), or elsewhere.
“Voting Agreements” means the voting agreements, shareholders agreements and voting and transfer agreements to which the Firmoront Blocker Seller is or was a party in respect of any Equity Securities of the Blocker or any Acquired Company, including the agreements set forth on Schedule 4.9 of the Company Disclosure Schedules, together with any proxy or power of attorney granted thereunder.
“Willful Breach” means a deliberate act or a deliberate failure to act, which act or failure to act constitutes a material breach of any covenant set forth in this Agreement, with actual knowledge that such act or failure to act would reasonably be expected to constitute a material breach of this Agreement.
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1.2 Terms Defined Elsewhere in this Agreement.For purposes of this Agreement, the following terms have meanings set forth in the sections indicated:
| Term |
Section | |
| Agreement | Preamble | |
| Allocation Schedule | 2.4 | |
| Aluminum Packaging Shares | Recitals | |
| Anti-Corruption Laws | 6.18(g) | |
| Ardagh Seller | Preamble | |
| Ardagh Seller Shares | Recitals | |
| Audited Financial Statements | 6.6(a) | |
| Balance Sheet Date | 6.6(a) | |
| Blocker | Preamble | |
| Blocker Company Shares | Recitals | |
| Buyer | Preamble | |
| Buyer Arrangements | 8.15 | |
| Buyer Damages Cap | 10.2 | |
| Buyer Documents | 7.2 | |
| Buyer Enforcement Expenses | 10.3(b) | |
| Buyer Expenses | 11.2 | |
| Buyer Joinder | 8.28 | |
| Buyer Plans | 8.9(a) | |
| Buyer Released Parties | 11.14(b) | |
| Buyer Releasing Parties | 11.14(a) | |
| Buyer Termination Fee | 10.3(a) | |
| Buyer Voyage Termination Fee | 10.3(a) | |
| Buyer Vulcan Termination Fee | 10.3(a) | |
| Cleansing Vote | 8.15 | |
| Clean Team Agreement | 8.5 | |
| Closing | 2.2 | |
| Closing Certificates | 2.3(a)(i) | |
| Closing Date | 2.2 | |
| Closing Statement | 3.3(a) | |
| Commitment Letters | 7.6(a) | |
| Company | Preamble | |
| Company Disclosure Schedules | Article IV | |
| Company Documents | 6.2 | |
| Company Enforcement Expenses | 10.3(b) | |
| Company Pension Plan | 6.14(b) | |
| Company Shares | 6.4(a) | |
| Confidentiality Agreements | 8.5 | |
| Consultation Obligations | 8.9(d) | |
| Continuing Employee | 8.9(a) | |
| D&O Insurance Policy | 8.6(d) | |
| Debt Commitment Letter | 7.6(a) | |
| Debt Financing | 7.6(a) | |
| Debt Financing Commitments | 7.6(a) | |
| Definitive Debt Documents | 8.10(b) | |
| Designated Contacts | 8.1(a) |
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| Term |
Section | |
| Designated Facilities | 8.20(b) | |
| Dispute Notice | 3.3(b) | |
| Dispute Resolution Period | 3.3(c) | |
| Downward Adjustment Amount | 3.3(e)(ii) | |
| Effect | 1.1 (in definition of Material Adverse Effect) | |
| Emergencies | 1.1 (in definition of Material Adverse Effect) | |
| Enforcement Cap | 10.3(b) | |
| Equitable Exceptions | 4.2 | |
| Equity Commitment Letter | Recitals | |
| Equity Financing | Recitals | |
| Equity Financing Commitment | Recitals | |
| Equity Financing Source | Recitals | |
| Escrow Account | 1.1 (in definition of Escrow Funds) | |
| Estimated Company Transaction Expenses | 3.1 | |
| Estimated Leakage | 3.1 | |
| Estimated Statement | 3.1 | |
| EU GDPR | 1.1 (in definition of GDPR) | |
| Exal Holdings Shares | Recitals | |
| Exal Seller | Preamble | |
| Exal Seller Blocker Shares | Recitals | |
| Export Control Laws | 6.18(f) | |
| Extended Termination Date | 10.1(b)(i) | |
| FCPA | 6.18(g) | |
| Fee Letters | 7.6(a) | |
| Financial Statements | 6.6(a) | |
| Financing | 7.6(a) | |
| Financing Commitments | 7.6(a) | |
| Firmoront Blocker Seller | Recitals | |
| Firmoront Seller Blocker Shares | Recitals | |
| Foreign Benefit Plan | 6.14(j) | |
| Fund IX | Recitals | |
| Fund IX Confidentiality Agreement | 8.5 | |
| Fund IX VL Holdings | 1.1 (in definition of Affiliate) | |
| Group Relief | 6.9(w) | |
| Guarantor | Recitals | |
| ICE | 6.15(e) | |
| IFU Form | 8.12(e) | |
| Improvements | 6.10(c) | |
| Indemnitees | 8.6(a) | |
| Independent Accounting Firm | 3.3(c) | |
| Initial Termination Date | 10.1(b)(i) | |
| Insurance Policies | 6.20 |
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| Term |
Section | |
| Intercompany Accounts | 6.23(c) | |
| Interim Financial Statements | 6.6(a) | |
| Knowledge Group | 1.1 (in definition of Knowledge of the Company) | |
| Lease Buy-Out Option | 8.23 | |
| Leased Real Property | 6.10(a) | |
| Limited Guarantees | Recitals | |
| Material Contracts | 6.13(a) | |
| Material Customers | 6.25(a) | |
| Material Vendors | 6.25(a) | |
| Non-Executive Directors | 1.1 (in definition of Permitted Leakage) | |
| Non-Parties | 11.12 | |
| Owned Real Property | 6.10(b) | |
| Owned Registered IP | 6.12(a) | |
| Parties | Preamble | |
| Party | Preamble | |
| Paul Weiss | 11.11(a) | |
| Payoff Letters | 2.3(a)(ii) | |
| Phase I Assessment | 8.20(b) | |
| PPWD | 6.17(a) | |
| PPWR | 6.17(a) | |
| Primary Indemnitor | 8.6(a) | |
| Privileged Communications | 11.11(b) | |
| Pro Rata Share | 2.4 | |
| Put Option Agreement | Recitals | |
| Put Option Date | Recitals | |
| Real Property Lease | 6.10(a) | |
| Real Property Leases | 6.10(a) | |
| Redemption | Recitals | |
| Related Leakage Parties | 1.1 (in definition of Leakage Party) | |
| Related Party Arrangement | 6.21 | |
| Replacement Financing | 8.10(e) | |
| Representative Losses | 11.16(e)(ii) | |
| Required Amount | 7.6(b) | |
| Restrictive Covenant Agreements | Recitals | |
| Review Period | 3.3(b) | |
| R&W Insurance Policy | 8.13(a) | |
| SCF Contracts | 6.13(a)(xviii) | |
| Scheduled Specified Projects | 1.1 (in definition of Specified Project Budget) | |
| Second Request | 8.3(a) | |
| Secondary Indemnitors | 8.6(b) | |
| Seller | Preamble | |
| Seller Damages Cap | 10.2 | |
| Seller Group | 11.11(a) |
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| Term |
Section | |
| Seller Option Award | 4.3 | |
| Seller Released Parties | 11.14(a) | |
| Seller Releasing Parties | 11.14(b) | |
| Seller Representative | Preamble | |
| Sellers | Preamble | |
| Shares | Recitals | |
| SHI | Recitals | |
| Shortfall Amount | 3.3(e)(ii) | |
| Silgan Confidentiality Agreement | 8.5 | |
| Solvent | 7.8(b) | |
| Specified Documents | 11.5(a) | |
| Specified Leakage | 1.1 (in definition of Leakage) | |
| Steering Committee | 8.1(b) | |
| Surviving Intercompany Accounts | 8.24(b) | |
| TCPA | 1.1 (in definition of Privacy Laws) | |
| Termination Date | 10.1(b)(i) | |
| Title Company | 8.20(a) | |
| Title Policies | 8.20(a) | |
| Transaction Personal Information | 8.17 | |
| Trivium Packaging Shares | Recitals | |
| UK GDPR | 1.1 (in definition of GDPR) | |
| US Pension Plan | 6.14(d) | |
| Waived 280G Benefits | 8.15 | |
| Waiving Parties | 11.11(a) | |
| WARN Act | 6.15(c) | |
| Weil | 11.11(a) |
1.3 Other Definitional and Interpretive Matters.
(a) Unless otherwise expressly provided, for purposes of this Agreement, the following rules of interpretation shall apply:
(i) Calculation of Time Period. When calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded. If the last day of such period is a non-Business Day, the period in question shall end at 5:00 PM Eastern Time on the next succeeding Business Day; provided that the foregoing shall not apply to (A) any notices required to be delivered by a specific date under this Agreement or (B) any notices delivered by email in accordance with the terms of this Agreement. The word “day” shall mean “calendar day” unless “Business Day” is expressly identified. The terms “year” and “years” shall mean and refer to calendar year(s).
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(ii) Dollars. Any reference in this Agreement to “$” shall mean U.S. dollars. The specification of any dollar amount in the representations and warranties or otherwise in this Agreement or in the Exhibits or the Company Disclosure Schedules is not intended and shall not be deemed to be an admission or acknowledgment of the materiality of such amounts or items, nor shall the same be used in any dispute or controversy between the Parties to determine whether any obligation, item or matter (whether or not described herein or included in the Company Disclosure Schedules) is or is not material for purposes of this Agreement.
(iii) Exhibits/Schedules. The Schedules and Exhibits to this Agreement and the Company Disclosure Schedules referred to herein are an integral part of this Agreement and are hereby incorporated in and made a part of this Agreement as if set forth in full herein. Any matter or item disclosed on one schedule or section of the Company Disclosure Schedules shall be deemed to have been disclosed on each other schedule or section of the Company Disclosure Schedules, in which it is reasonably apparent on the face of such disclosure that it is responsive to such other schedule or section of the Company Disclosure Schedules, notwithstanding the lack of any cross reference, and such information shall be deemed to qualify such other schedule or section of the Company Disclosure Schedules. Disclosure of any matter or item on any schedule or section of the Company Disclosure Schedules shall not constitute an admission, indication, acknowledgment or representation that such item or matter is material, establish any standard of materiality, define further the meaning of any terms defined in Article I (and, in particular, the inclusion of any item in the Company Disclosure Schedules shall not, in and of itself, be a basis for taking such item into account in determining if such item would reasonably be expected to have a Material Adverse Effect or whether there has been a Material Adverse Effect) or be deemed to constitute an acknowledgment or representation that any such matter is required to be disclosed. No disclosure on a schedule or section of the Company Disclosure Schedules relating to a possible breach or violation of any Contract, Law or Order shall be construed as an admission, indication, acknowledgment or representation that a breach or violation exists or has actually occurred. Any capitalized terms used in any schedule or section of the Company Disclosure Schedules or Schedule or Exhibit of this Agreement but not otherwise defined therein shall be defined as set forth in this Agreement.
(iv) Gender and Number. Any reference in this Agreement to gender shall include all genders, and words imparting the singular number only shall include the plural and vice versa.
(v) Headings. The provision of a table of contents, the division of this Agreement or the Company Disclosure Schedules into Articles, Sections and other subdivisions and the insertion of headings are for convenience of reference only and shall not affect or be utilized in construing or interpreting this Agreement or the Company Disclosure Schedules. All references in this Agreement or the Company Disclosure Schedules to any “Section” or “Article” are to the corresponding Section or Article of this Agreement or the Company Disclosure Schedules, as applicable, unless otherwise specified.
(vi) Herein. The words “herein,” “hereinafter,” “hereof,” and “hereunder” refer to this Agreement as a whole and not merely to a subdivision in which such words appear unless the context otherwise requires.
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(vii) Including. The word “including” or any variation thereof means (unless the context of its usage otherwise requires) “including, without limitation” and shall not be construed to limit any general statement that it follows to the specific or similar items or matters immediately following it.
(viii) Reflected On or Set Forth In. An item arising with respect to a specific representation or warranty shall be deemed to be “reflected on” or “set forth in” a balance sheet or financial statements, to the extent any such phrase appears in such representation or warranty, if (A) there is a reserve, accrual or other similar item underlying a number on such balance sheet or financial statements that relates to the subject matter of such representation or warranty, (B) such item is otherwise specifically set forth on the balance sheet or financial statements or (C) such item is reflected on the balance sheet or financial statements and is specifically set forth in the notes thereto.
(ix) And/Or. Unless the context clearly requires otherwise, when used herein “or” shall not be exclusive (i.e., “or” shall mean “and/or”).
(x) Amendments. Unless expressly indicated otherwise, references to a particular statute or regulation shall include all rules and regulations thereunder and any successor statute, rule or regulation, in each case, as amended, supplemented or otherwise modified from time to time. References to any agreement, including this Agreement, or contract referenced herein or in the Company Disclosure Schedules, will be a reference to such agreement or contract, as amended, supplemented or otherwise modified from time to time.
(xi) Person. References to any Person shall be deemed to mean and include the successors and permitted assigns of such Person (or, in the case of a Governmental Body, Persons succeeding to the relevant functions of such Person).
(xii) Written. References to “written” or “in writing” shall include in electronic form.
(xiii) Made Available. Any document will be deemed “delivered”, “provided” or “made available” (or where similar words are used to describe any document or information provided by any Acquired Company to Buyer) within the meaning of this Agreement if such document is accessible to Buyer in the electronic data room hosted by Data Site for Project Voyage or otherwise delivered to Buyer or its Affiliates, in either case, at least one Business Day prior to the Put Option Date.
(xiv) Time of the Essence. Time shall be of the essence with respect to any notices or payments required pursuant to the terms of this Agreement.
(xv) Materiality of Conditions. The occurrence, satisfaction or performance of (and the consequences of the failure to occur, satisfy or perform) each condition contained in this Agreement was a material part of the agreed exchange between the Parties; and to the extent the occurrence, satisfaction or performance of any such conditions is required by a specific date and time, time is of the essence in the occurrence, satisfaction or performance of all such conditions.
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(b) The Parties have participated jointly in the negotiation and drafting of this Agreement and, in the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as jointly drafted by the Parties and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provision of this Agreement. The language used in this Agreement shall be deemed to be the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against any Person.
ARTICLE II
SALE AND PURCHASE OF THE SHARES; CLOSING
2.1 Sale and Purchase of the Shares.
(a) On and subject to the terms of this Agreement (including the conditions set forth in Article IX): (i) the Ardagh Seller hereby sells and agrees to transfer the Ardagh Seller Shares to Buyer (or its designee) on the Closing Date and Buyer hereby purchases and agrees to accept, or cause to be purchased and accepted, the transfer of the Ardagh Seller Shares from the Ardagh Seller on the Closing Date; and (ii) the Exal Seller hereby sells and agrees to transfer the Exal Seller Blocker Shares to Buyer (or its designee) on the Closing Date and Buyer hereby purchases and agrees to accept, or cause to be purchased and accepted, the transfer of the Exal Seller Blocker Shares from the Exal Seller on the Closing Date. The Shares shall be sold by each Seller free from Liens (other than transfer restrictions imposed by applicable securities Laws) and together with all rights and advantages attaching to them as at the Closing (including the right to receive all dividends or distributions declared, made or paid on or after the Closing).
(b) On the Closing Date, after confirmation by the Notary to the Sellers and Buyer of receipt of the amounts described in Section 3.2 and delivery of each of the closing deliveries set out in Section 2.3 below, each Seller shall transfer the Shares held by it to Buyer (or its designee), Buyer shall accept, or cause to be accepted, such transfer, and each Seller shall procure that the Company and, as applicable, the Blocker acknowledge the transfer of the Shares, the foregoing to be effected by execution of the Notarial Transfer Deeds by, or on behalf of, the Sellers, Buyer, the Company and, as applicable, the Blocker. References to Buyer in Section 2.3(b)(ii) shall include any such designee, as applicable.
2.2 Closing.The transfer of the Shares by execution of the Notarial Transfer Deeds and payment of the amounts described in Section 3.2 pursuant to Section 2.1 of this Agreement (the “Closing”) shall take place on a date to be specified by the Parties, which date shall be no later than the third Business Day after satisfaction or waiver of the conditions set forth in Article IX (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions at such time) by electronic (i.e., email or PDF documents) delivery of documents, unless another time, date or place is agreed to in writing by Buyer and the Seller Representative; provided that notwithstanding the satisfaction or waiver of the conditions set forth in Article IX, unless otherwise agreed by Buyer and the Seller Representative, Buyer shall not be required to effect the Closing prior to May 15, 2027; provided, further, that the Closing shall occur substantially concurrently with the Project Vulcan Closing, and Buyer shall not be required to effect the Closing prior to the date on which the Project Vulcan Closing is required to occur. The date on which the Closing actually occurs is referred to in this Agreement as the “Closing Date”.
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2.3 Closing Deliveries of the Parties.
(a) Deliveries by the Company, the Blocker and the Sellers. At or prior to the Closing, the Company, the Blocker and, as applicable, the Sellers shall deliver or cause to be delivered to Buyer:
(i) Closing Certificates.
(A) A certificate, dated as of the Closing Date, signed by an authorized signatory of the Company as to the satisfaction of the conditions set forth in Section 9.2(a), Section 9.2(d), Section 9.2(f) and Section 9.2(g), in each case, solely with respect to the Company;
(B) A certificate, dated as of the Closing Date, signed by an authorized signatory of the Blocker as to the satisfaction of the conditions set forth in Section 9.2(a), Section 9.2(c), Section 9.2(f) and Section 9.2(g), in each case, solely with respect to the Blocker; and
(C) A certificate, dated as of the Closing Date, signed by an authorized signatory of each Seller as to the satisfaction of the conditions set forth in Section 9.2(a), Section 9.2(b) and Section 9.2(g), in each case, solely with respect to such Seller (clauses (A) – (C), the “Closing Certificates”);
(ii) Payoff Letters. At least two Business Days prior to the Closing Date, one or more executed lien releases or “payoff letters” or similar documents (the “Payoff Letters”) in respect of (x) the Existing Credit Agreements (A) in form and substance reasonably satisfactory to Buyer and (B) providing for the automatic release of all Liens and guarantees securing or otherwise relating to the Specified Debt upon receipt of the applicable payoff amounts (including copies of UCC-3 termination statements and other duly authorized Lien release documentation relating to the Specified Debt, in a form suitable for filing or recording, in each case, as applicable) and (y) the Ardagh Debt Documents (A) in form and substance reasonably satisfactory to Buyer and (B) providing for the automatic release of all Liens on the Ardagh Seller Shares securing or otherwise relating to indebtedness under the Ardagh Debt Documents at the Closing, without any requirement for repayment of such indebtedness (including copies of UCC-3 amendments releasing the Ardagh Seller Shares from the collateral covered by any applicable financing statement and other duly authorized partial Lien release documentation (including any share pledge release or deed of release) relating to the Ardagh Seller Shares, in a form suitable for filing or recording, in each case, as applicable); provided that, in each case of the foregoing clauses (x) and (y), the Company shall use reasonable best efforts to deliver, or cause the applicable agents to deliver, all required foreign Lien release documentation at or promptly following the Closing;
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(iii) Resignations. Duly executed written resignations (or other evidence of removal), effective as of the Closing, of the Blocker’s and the Acquired Companies’ officers and each of the members of the board of directors (or similar governing body) of the Acquired Companies, in each case, affiliated with the Sponsor or the Ardagh Seller or as otherwise requested by Buyer in writing to the Seller Representative not less than five Business Days prior to the Closing;
(iv) Notarial Transfer Deed. The Notarial Transfer Deeds in respect of the Shares, duly executed by the Notary on behalf of the applicable Seller, pursuant to which such Seller shall transfer title to the applicable Shares to Buyer;
(v) Notarial Deliverables. The Sellers shall, or shall procure that the Blocker or the Company shall, as applicable, deliver or make available to the Notary:
(A) a PoA granted by each Seller, to execute the applicable Notarial Transfer Deed on its behalf, or a copy thereof;
(B) a PoA granted by the Company, to execute the relevant Notarial Transfer Deed on its behalf, or a copy thereof;
(C) a PoA granted by the Blocker, to execute the relevant Notarial Transfer Deed on its behalf, or a copy thereof;
(D) the original, complete, up-to-date and fully signed shareholders’ registers of the Company and the Blocker;
(E) a confirmation letter (in a form satisfactory to the Notary) that, amongst other matters, confirms that all actions required to take place prior to the execution of the Notarial Transfer Deeds pursuant to this Agreement have taken place or have been waived, in each case to the satisfaction of the Sellers, and that the Notary may proceed with the execution of the Notarial Transfer Deeds, or a copy thereof;
(F) a resolution of the management board (or equivalent governing body) of each Seller to, inter alia, vote on the shares in the capital of the Company or the Blocker, as applicable, in relation to the Transactions and appoint such managing directors to the Company or the Blocker as designated by Buyer, or a copy thereof; and
(G) any document to comply with any know your customer (KYC) or ultimate beneficial owner requirements of the Notary.
(vi) Escrow Agreement. A counterpart of the Escrow Agreement, duly executed by the Seller Representative and the Escrow Agent.
(vii) Redemption. The Redemption Agreement, duly executed by each of the parties thereto, together with (A) evidence of the redemption and cancellation of the Firmoront Seller Blocker Shares, the Trivium Packaging Shares, the Aluminum Packaging Shares and the Exal Holdings Shares and (B) evidence of the termination of the Voting Agreements in accordance with Section 8.25.
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(viii) FIRPTA Certificate. To the extent legally able to be provided, a certificate of Trivium Packaging USA Holdings Company, dated as of the Closing Date and prepared in accordance with Treasury Regulations Sections 1.897-2(h) and 1.1445-2(c)(3), certifying that interests in Trivium Packaging USA Holdings Company are not United States real property interests within the meaning of Section 897(c) of the Code, together with the related notice to the IRS described in Treasury Regulations Section 1.897-2(h)(2), which notice Buyer shall cause to be timely submitted to the IRS.
(b) Deliveries by Buyer. At or prior to the Closing, Buyer will deliver or cause to be delivered to the Company or the applicable Person:
(i) Closing Certificate. A certificate, dated as of the Closing Date, signed by an authorized signatory of Buyer as to the satisfaction of the conditions set forth in Section 9.3(a), Section 9.3(b) and Section 9.3(c);
(ii) Notarial Deliverables. Buyer shall deliver or make available to the Notary:
(A) a data card, duly signed by each individual who will qualify as (pseudo-)ultimate beneficial owner of the Company and the Blocker immediately upon the execution of the Notarial Transfer Deeds, and, if so requested by the Notary, legalized and such legalization confirmed by apostille, including a proof of address of each such individual who does not have a Dutch citizen’s identification number (which proof may not be older than one (1) month at the Closing Date) and, to the extent applicable, any documentation evidencing the nature and extent of the beneficial interest held (in a form satisfactory to the Notary);
(B) a data card, duly signed by Buyer to register Buyer as sole shareholder of the Blocker with the Dutch Trade Register, together with an extract from the commercial register where Buyer is registered (which extract may not be older than one (1) month at the Closing Date) and, if so requested by the Notary, legalized, including a confirmation of authority or, if the legalization cannot include such confirmation of authority, any other evidence of authority to the satisfaction of the Notary, such legalization confirmed by apostille;
(C) a data card, duly signed by Buyer to register Buyer as managing director of the Company with the Dutch Trade Register and, if so requested by the Notary, legalized, including a confirmation of authority or, if the legalization cannot include such confirmation of authority, any other evidence of authority to the satisfaction of the Notary, and such legalization confirmed by apostille;
(D) a confirmation letter (in a form satisfactory to the Notary) that, amongst other matters, confirms that all actions required to take place prior to the execution of the Notarial Transfer Deeds pursuant to this Agreement have taken place or have been waived, in each case to the satisfaction of Buyer, and that the Notary may proceed with the execution of the Notarial Transfer Deeds, or a copy thereof;
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(E) a PoA, granted by Buyer, to execute each Notarial Transfer Deed on its behalf, or a copy thereof; and
(F) any document to comply with any know your customer (KYC) or ultimate beneficial owner requirements of the Notary.
(iii) Escrow Agreement. A counterpart of the Escrow Agreement, duly executed by Buyer.
(iv) Closing Payments. Payment of the closing payments described in Section 3.2.
2.4 Allocation Schedule.At least five Business Days prior to the Closing, the Company will prepare and submit to Buyer a schedule setting forth: (a) the number and type of the Shares held by each Seller, (b) the percentage of the Estimated Consideration payable to each Seller (as to each Seller, such Seller’s “Pro Rata Share”), (c) the amount of cash payable to each Seller at the Closing, (d) the current address of each Seller, (e) the Estimated Company Transaction Expenses and the applicable recipients thereof and (f) all wiring instructions necessary to facilitate the payments pursuant to Section 3.2 (the “Allocation Schedule”).
2.5 Post-Closing Register Updates.After the Closing, Buyer shall procure that the Notary updates the shareholders’ register of each of the Company and the Blocker. After the Closing, Buyer shall procure that the Notary updates the Dutch Trade Register with the relevant resignations, appointments, change(s) in shareholder(s), ultimate beneficial owner(s) and the Company’s and the Blocker’s address and amended articles of association (as applicable).
ARTICLE III
PURCHASE PRICE
3.1 Estimated Statement. No later than five Business Days prior to the Closing Date, the Company or the Sellers shall provide Buyer with a written statement (the “Estimated Statement”) reflecting the Company’s good faith estimate (without duplication) of (a) Leakage (if any) (“Estimated Leakage”) and (b) the Company Transaction Expenses (“Estimated Company Transaction Expenses”), and the resulting calculation of Estimated Consideration, together with the Allocation Schedule, in each case, based upon the accounting books and records of the Blocker and the Acquired Companies and in accordance with this Agreement. The Estimated Statement shall be accompanied by reasonable supporting detail and documentation and the Seller Representative shall consider in good faith any comments provided by Buyer; provided that (i) such review and comment process shall not delay the Closing and (ii) the Seller Representative shall not be obligated to amend or otherwise modify the Estimated Statement in response to any such comments. No later than three Business Days after receipt of the Estimated Statement (as it may have been modified by the Seller Representative after considering any comments from Buyer), Buyer shall provide to the Seller Representative a detailed funds flow memorandum in Excel format (including all underlying calculations, formulas and amounts therein) setting forth
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all payments to be made by or on behalf of the Parties at the Closing in accordance with this Agreement. The funds flow memorandum shall be consistent with the Estimated Statement and the Allocation Schedule and, to the extent provided on the Estimated Statement and the Allocation Schedule, shall separately identify Company Transaction Expenses remaining unpaid immediately prior to the Closing and payable pursuant to Section 3.2(c). Buyer shall promptly correct any error or inconsistency in the funds flow memorandum identified by the Seller Representative prior to the Closing. Buyer shall be entitled to conclusively rely on the allocations set forth in the Estimated Statement and the Allocation Schedule, without any obligation to investigate or verify the accuracy or correctness thereof, and in no event shall Buyer or any of its Affiliates (including, from and after the Closing, the Acquired Companies and the Blocker) or Representatives have any liability to any Person (including any Seller) solely as a result of making the Closing payments in accordance with the Estimated Statement and the Allocation Schedule; provided that nothing in this sentence shall relieve Buyer of liability for any failure to make a payment in accordance with the Estimated Statement, the Allocation Schedule or this Agreement, or for any error introduced by Buyer in the funds flow memorandum.
3.2 Closing Date Payments by Buyer.
(a) Payments in respect of the Shares. At the Closing, Buyer shall pay, or cause to be paid, directly to:
(i) the Exal Seller, by wire transfer of immediately available funds to the account(s) designated in the Allocation Schedule, an amount equal to the portion of the Estimated Consideration as determined in accordance with Section 3.1 allocated to the Exal Seller Blocker Shares, as set forth on the Allocation Schedule; and
(ii) the Ardagh Seller, by wire transfer of immediately available funds to the account(s) designated in the Allocation Schedule, an amount equal to the portion of the Estimated Consideration as determined in accordance with Section 3.1 allocated to the Ardagh Seller Shares, as set forth on the Allocation Schedule.
(b) Payments in respect of Specified Debt. At the Closing, upon the terms and conditions of this Agreement, Buyer shall pay, or cause to be paid, on behalf of the Acquired Companies, the Debt Payoff Amount by wire transfer of immediately available funds to the Persons or bank accounts specified in the Payoff Letters for the Specified Debt.
(c) Payments in respect of Company Transaction Expenses. At the Closing, upon the terms and conditions of this Agreement, Buyer shall pay, or cause to be paid, on behalf of the Blocker and the Acquired Companies, the Company Transaction Expenses that remain unpaid as of immediately prior to the Closing to the applicable recipients as set forth on the Allocation Schedule by wire transfer of immediately available funds to such Persons or to an Acquired Company (in the case of such payments to an Acquired Company, for further distribution of such amounts by the applicable Acquired Company through the next administratively practicable payroll, to the extent relating to compensation for employees or other service providers); provided that any compensation payments to service providers of the Acquired Companies shall be paid in accordance with their respective terms and, if applicable, net of any applicable withholding Tax.
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(d) Payments in respect of Expense Reserve Holdback Amount. At the Closing, Buyer shall pay, or cause to be paid, to the Expense Reserve Holdback Account an amount equal to the Expense Reserve Holdback Amount.
(e) Payment in respect of Escrow Amount. At the Closing, Buyer shall deposit, or cause to be deposited, an amount equal to the Escrow Amount, to be held in the Escrow Account and released in accordance with this Agreement and the Escrow Agreement; provided that the Escrow Funds shall not constitute the sole source of recovery for, and shall not limit or cap, any such amounts or any other amount payable to Buyer under Section 3.3.
3.3 Closing Statement.
(a) Within 75 days following the Closing Date, Buyer shall deliver to the Seller Representative a written statement (the “Closing Statement”), setting forth its good faith calculation of the Leakage, the Company Transaction Expenses and the resulting calculation of Final Consideration, in each case prepared in a manner consistent with the definitions in this Agreement and based upon the accounting books and records of the Blocker and the Acquired Companies, together with reasonable supporting detail and documentation. If Buyer fails to timely deliver the Closing Statement, then the Seller Representative may deliver written notice of such failure to Buyer, and if Buyer does not deliver the Closing Statement within five Business Days following receipt of such notice, the Estimated Statement shall be deemed to be the final Closing Statement and shall be final, conclusive and binding on the Parties.
(b) Within 30 days following receipt by the Seller Representative of the Closing Statement (such period, the “Review Period”), the Seller Representative shall deliver written notice to Buyer of any dispute the Seller Representative has with respect to the calculation of Leakage, Company Transaction Expenses or Final Consideration reflected in the Closing Statement (the “Dispute Notice”); provided that if the Seller Representative does not deliver any Dispute Notice to Buyer within such Review Period, the Closing Statement will be final, conclusive and binding on the Parties. The Dispute Notice shall set forth in reasonable detail (i) any item on the Closing Statement that the Seller Representative disputes and (ii) the Seller Representative’s estimate of the correct amount of such item. Any items not disputed or objected to in the Dispute Notice timely delivered by the Seller Representative to Buyer shall be deemed to have been accepted by the Parties. The Closing Statement shall be deemed to have been accepted by the Parties and shall become final and binding upon the Parties as of the expiration of the Review Period with respect to any matters set forth therein not then subject to an unresolved dispute set forth in the Dispute Notice. Upon receipt by Buyer of a Dispute Notice, Buyer and the Seller Representative shall negotiate in good faith to resolve any dispute set forth therein. All such discussions and communications related thereto shall (unless otherwise agreed by Buyer and the Seller Representative) be governed by Rule 408 of the Federal Rules of Evidence and any applicable similar state rule, in each case, as in effect as of the Put Option Date, and any resolution by them agreed to in writing as to any disputed amounts shall be final, binding and conclusive.
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(c) If Buyer and the Seller Representative fail to resolve any such dispute within 30 days after delivery of the Dispute Notice or such longer period as mutually agreed to by the Parties (the “Dispute Resolution Period”), then, within ten Business Days following the expiration of the Dispute Resolution Period, Grant Thornton LLP or, if such firm is not available or is unwilling to accept the engagement, then a nationally recognized firm of independent certified public accountants reasonably acceptable to the Seller Representative and Buyer (the “Independent Accounting Firm”) shall be engaged to resolve any such dispute; provided that, if the Seller Representative and Buyer are unable to mutually agree on an accounting firm to serve as the Independent Accounting Firm or such selected accounting firm is unwilling or unable to perform the services required under this Section 3.3 and the Seller Representative and Buyer are unable to mutually agree on another accounting firm to serve as the Independent Accounting Firm, then each of the Seller Representative and Buyer shall select a nationally recognized major accounting firm, and the two firms will mutually select a third nationally recognized firm of independent certified public accountants to serve as the Independent Accounting Firm. The Seller Representative and Buyer each agree to promptly sign an engagement letter, in commercially reasonable form, as may reasonably be required by the Independent Accounting Firm. As promptly as practicable, and in any event not more than 15 days following the engagement of the Independent Accounting Firm, Buyer and the Seller Representative shall each prepare and submit a written presentation detailing each party’s complete statement of proposed resolution of each issue set forth in the Dispute Notice and still in dispute to the Independent Accounting Firm (it being understood that the content of each such presentation shall be limited to whether the Leakage and the Company Transaction Expenses were properly calculated in accordance with the definitions in this Agreement, the proposed resolution of each disputed issue by such Party and reasonable supporting detail for the foregoing). Buyer and the Seller Representative shall instruct the Independent Accounting Firm to, as soon as practicable after the submission of the presentations described in the immediately preceding sentence and in any event not more than 20 days following such presentations, acting as an expert in accounting and not as an arbitrator, make a final determination, binding on the Parties to this Agreement, of the appropriate amount of each of the line items that remain in dispute as indicated in the Dispute Notice in accordance with the definitions and terms of this Agreement. None of the Seller Representative, Buyer, or any of their respective Affiliates shall have any ex parte communications or meetings with the Independent Accounting Firm regarding the subject matter hereof without the other Party’s prior written consent. Neither Buyer nor the Seller Representative will disclose to the Independent Accounting Firm any settlement discussions or settlement offer made by or on behalf of Buyer or the Seller Representative, and the Independent Accounting Firm shall agree that between the time the Seller Representative delivered the Dispute Notice and the date on which any disputed item was submitted to the Independent Accounting Firm, Buyer and the Seller Representative and their respective Representatives may have exchanged certain proposals relating to the disputed items that were intended solely for purposes of facilitating settlement discussions, and such proposals were confidential and were provided solely on the condition and understanding that such proposals would not be permitted to be disclosed in any court or arbitration hearing or in respect of the Independent Accounting Firm’s engagement in the dispute, and the Independent Accounting Firm will be instructed to disregard any evidence of such settlement proposals and negotiations in its consideration of the disputed items. With respect to each disputed line item, the Independent Accounting Firm shall only assign a value to each disputed item equal to the value claimed by either the Seller Representative or Buyer. Notwithstanding the foregoing, the scope of the disputes to be resolved by the Independent Accounting Firm shall be limited to whether any disputed determinations of the Leakage and the Company Transaction Expenses were properly calculated in accordance with the definitions in this Agreement, and the Independent Accounting Firm shall not create, imply or otherwise give effect to any category of Leakage, Company Transaction Expenses or other adjustment to Final
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Consideration that is not expressly contemplated by this Agreement. The fees and expenses of the Independent Accounting Firm shall be allocated to be paid by Buyer, on the one hand, and the Seller Representative, on the other hand, based upon the percentage that the portion of the contested amount not awarded to each party bears to the amount actually contested by such Party, as determined by the Independent Accounting Firm. For example, if the Seller Representative claims in a Dispute Notice that the adjustment amount is $1,000 greater than the amount determined by Buyer in the Closing Statement, and if the Independent Accounting Firm ultimately resolves the dispute by awarding the Seller Representative $600 of the $1,000 contested, then the costs and expenses of the Independent Accounting Firm will be allocated 60% (i.e., 600 ÷ 1,000) to Buyer and 40% (i.e., 400 ÷ 1,000) to the Seller Representative. All determinations made by the Independent Accounting Firm, and the Closing Statement, as modified by the Independent Accounting Firm, will, absent manifest error or fraud, (i) be final, conclusive and binding on the Parties and (ii) neither Buyer nor the Seller Representative shall seek further recourse to courts or other tribunals, other than to enforce such determination.
(d) For purposes of complying with the terms set forth in this Section 3.3, each of the Seller Representative and Buyer shall reasonably cooperate with and promptly make available to each other and their respective Representatives, to the extent requested, all personnel, information, records, data and working papers (subject to customary confidentiality agreements and access letters, as applicable), and shall permit reasonable access to its facilities and personnel, as may be reasonably required in connection with the preparation and analysis of the Closing Statement, as applicable, and the resolution of any disputes thereunder; provided that the Seller Representative or Buyer may withhold any document (or portions thereof) or information that may constitute privileged attorney-client communications or attorney work product, the transfer of which, or the provision of access to which, on the advice of legal counsel, would reasonably be expected to risk a waiver of such privilege or if the provision of access to such document (or portion thereof) or information, on the advice of legal counsel, would reasonably be expected to conflict with applicable Law (it being agreed, that, in the event any of the restrictions in the foregoing apply, the disclosing party shall provide the other party with a reasonably detailed description and summary of the information not provided and cooperate in good faith with such other party to design and implement alternative disclosure arrangements to enable such other party and its Representatives to evaluate any such information without resulting in such violation or jeopardizing such attorney-client privilege or contravening such Laws).
(e) Within five Business Days of the final determination of the Final Consideration:
(i) if the Final Consideration exceeds the Estimated Consideration paid at the Closing, then (A) Buyer shall pay or cause to be paid to the Sellers (in accordance with their respective Pro Rata Shares as set forth in the Allocation Schedule) an amount in cash equal to such excess, in each case by wire transfer of immediately available funds to the account(s) designated in writing by the Seller Representative, and (B) Buyer and the Seller Representative shall deliver to the Escrow Agent a joint written instruction instructing the Escrow Agent to release to the Exal Seller a portion of the Escrow Funds in an amount equal to its Pro Rata Share in the Escrow Funds by wire transfer of immediately available funds to the account(s) designated in writing by the Seller Representative.
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(ii) if the Final Consideration is less than the Estimated Consideration paid at the Closing (the amount of such shortfall, the “Downward Adjustment Amount”), then (A) Buyer and the Seller Representative shall deliver to the Escrow Agent a joint written instruction instructing the Escrow Agent to release the to (1) Buyer a portion of the Escrow Funds in an amount equal to the lesser of (x) the Escrow Funds and (y) the Downward Adjustment Amount and (2) the Exal Seller a portion of the Escrow Funds in an amount equal to its Pro Rata Share of the remaining Escrow Funds, if any, by wire transfer of immediately available funds to the account(s) designated in writing by the Seller Representative and (B) to the extent the Downward Adjustment Amount exceeds the amount of the Escrow Funds (such shortfall amount, the “Shortfall Amount”), then the Sellers shall, severally and not jointly, pay or cause to be paid to Buyer an amount in cash equal to such Seller’s portion of the Shortfall Amount; provided that such obligations of the Sellers shall be (x) in the case of any Shortfall Amount in respect of Company Transaction Expenses in excess of the Estimated Company Transaction Expenses, an amount equal to the portion of the Shortfall Amount equal to such Company Transaction Expenses in accordance with their respective Pro Rata Shares as set forth in the Allocation Schedule, and (y) any Leakage in excess of Estimated Leakage to a Seller or its Related Leakage Parties, such Seller severally undertakes to pay to Buyer an amount equal to the portion of the Shortfall Amount equal to such Leakage received by or for the benefit of it or its applicable Related Leakage Party; provided, further, that, the Parties agree that the Escrow Funds released to Buyer pursuant to clause (A) above shall be deemed to have been applied against (x) first, the portion of the Downward Adjustment Amount attributable to Leakage in excess of Estimated Leakage and (y) thereafter, the portion of the Downward Adjustment Amount attributable to Company Transaction Expenses in excess of the Estimated Company Transaction Expenses;
(iii) if the Final Consideration is equal to the Estimated Consideration paid at the Closing, then Buyer and the Seller Representative shall deliver to the Escrow Agent a joint written instruction instructing the Escrow Agent to release to the Exal Seller a portion of the Escrow Funds in an amount equal to its Pro Rata Share of the Escrow Funds by wire transfer of immediately available funds to the account(s) designated in writing by the Seller Representative.
(f) Any payment made pursuant to this Section 3.3 shall be treated as an adjustment to the Estimated Consideration for all purposes, except as otherwise required by applicable Law. The adjustment procedures described in this Section 3.3 shall be the sole and exclusive remedy with respect to determination of Leakage and Company Transaction Expenses, and the resulting calculation of the Final Consideration.
(g) The aggregate liability of each Seller in respect of any Leakage shall not exceed an amount equal to the Leakage received by or given for the benefit of or deemed to be received by such Seller and its Related Leakage Parties (it being understood that the foregoing limitation shall not limit Buyer’s recourse to the Escrow Funds in accordance with Section 3.3(e)). Any Leakage attributed to the Blocker shall be counted only once and shall be allocated solely to the Exal Seller. Any Specified Leakage shall be allocated solely to the Ardagh Seller.
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(h) Any (i) Leakage that cannot reasonably be attributed to be for the benefit of any particular Seller or a Related Leakage Party of a Seller, shall be deemed to be for the benefit of both Sellers pro rata in accordance with each Seller’s Pro Rata Share and (ii) Leakage under paragraph (j) of the definition of Leakage shall be deemed to be received by or for the benefit of any Seller if it is payable, arises or is incurred in connection with any Leakage paid to, for the benefit of or on behalf of that Seller or a Related Leakage Party of that Seller or deemed to be for the benefit of that Seller pursuant to Section 3.3(g).
3.4 Withholding. The Parties agree that, absent a change in applicable Law to the contrary, no deductions or withholdings for or on account of Tax are expected to be required by applicable Law to be made with respect to the payment of the Estimated Consideration or Final Consideration, as applicable. If, as a result of such change in applicable Law, any Person (including Buyer, the Company or any of their respective Affiliates) is required to deduct and withhold from any payments made under this Agreement to the Sellers or any other Person, such Person shall be entitled to deduct and withhold such amounts, and any amounts so deducted and withheld and paid over to the appropriate Governmental Body as required by applicable Law shall be treated for all purposes of this Agreement as having been paid to the Person in respect of which such deduction or withholding was made. Buyer, the Company and their respective Affiliates, as applicable, shall use commercially reasonable efforts to provide the applicable payee with a written notice of its intention to withhold at least five (5) Business Days prior to any such withholding and each of the applicable Parties shall use commercially reasonable efforts to minimize any such Taxes. No deduction or withholding for or on account of Tax from any amounts payable under this Agreement shall be permitted with respect to the failure to cause to be delivered the certificate described in Section 2.3(a)(viii).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES REGARDING THE SELLERS
Except as set forth on the disclosure schedule delivered to Buyer substantially concurrently with the execution of the Put Option Agreement (the “Company Disclosure Schedules”), each Seller, severally as to such Seller only (and not jointly and severally), hereby represents and warrants to Buyer that:
4.1 Organization and Good Standing.Such Seller is duly organized, validly existing and in good standing under the Laws of its jurisdiction of formation and has all requisite power and authority to own, lease and operate its material properties, rights and assets and to carry on its business in all material respects as now conducted. There are no Legal Proceedings pending or threatened in writing, for dissolution, liquidation or insolvency of such Seller.
4.2 Authorization of Agreement.Such Seller has all requisite power and authority to execute and deliver this Agreement and any Transaction Documents to which such Seller is a party, to perform its obligations hereunder and thereunder, and to consummate the Transactions. The execution, delivery and performance of this Agreement by such Seller and any Transaction Documents to which such Seller is a party and the consummation by such Seller of the Transactions have been (or, with respect to any Transaction Document to be entered into at the Closing, will have been as of the Closing) duly authorized by all necessary action, and no other
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proceedings on the part of such Seller and no additional approvals are necessary to authorize the execution, delivery and performance of this Agreement and any Transaction Documents to which such Seller is a party and the consummation of the Transactions. This Agreement has been (or, with respect to any Transaction Document to be entered into at the Closing, will have been as of the Closing) duly and validly executed and delivered by such Seller and assuming the due authorization, execution and delivery by the other parties hereto and thereto, this Agreement constitutes, and any Transaction Document when so executed and delivered by such Seller will constitute, the legal, valid and binding obligation of such Seller, enforceable against such Seller in accordance with its terms, except to the extent that enforceability thereof may be limited by (a) applicable bankruptcy, insolvency, reorganization, moratorium and similar Laws affecting creditors’ rights and remedies generally, and (b) general principles of equity, including principles of commercial reasonableness, good faith and fair dealing (regardless of whether enforcement is sought in a proceeding at law or in equity) (collectively, the “Equitable Exceptions”).
4.3 Ownership of the Shares.Such Seller is the sole legal and beneficial owner of all of such Seller’s Shares, free and clear of any and all Liens (other than restrictions arising under the Organizational Documents of the Blocker or the Acquired Companies, as applicable, or restrictions relating to the transferability of securities under applicable securities Laws), and has the right to exercise all voting, economic and other rights over such Seller’s Shares. Such Seller has the power, authority and legal capacity to sell, transfer, assign and deliver the Shares to Buyer, as provided in this Agreement, and such delivery will convey to Buyer good and marketable title to such Shares, free and clear of any and all Liens (other than restrictions arising under the Organizational Documents of the Blocker or the Acquired Company, as applicable, or restrictions relating to the transferability of securities under applicable securities Laws).
4.4 Non-contravention.None of the execution, delivery or performance of this Agreement or the other Transaction Documents, the consummation of the Transactions or compliance by such Seller with any of the provisions hereof or thereof will (a) conflict with or violate in any material respect any Law to which such Seller is subject, (b) conflict with or violate in any material respect any provision of any Organizational Documents of such Seller or (c) materially conflict with, result in a breach or violation of or any loss of any benefit under or termination of, constitute a default under, result in the acceleration of, create in any Person the right to accelerate, terminate, modify or cancel, require any notice, authorization, approval or consent under, or result in the imposition of any Lien (other than Permitted Liens) upon any of the material rights, properties or assets of such Seller under any Contract or Permit to which such Seller is a party. Except as required by applicable Antitrust Laws and the execution of the Notarial Transfer Deeds, such Seller is not required to provide any notice to, make any filing with or obtain any authorization, consent or approval of any Governmental Body in order for such Seller to consummate the Transactions, except in each case where the failure to give such notice or obtain such approval would not prohibit, restrain or otherwise materially delay such Seller’s performance of this Agreement or ability to consummate the Transactions.
4.5 Litigation. There are no, and since the Lookback Date there have not been, any Legal Proceedings pending or threatened in writing against such Seller that would prohibit, restrain or otherwise materially delay such Seller’s performance under this Agreement or the consummation of the Transactions. Except as set forth on Schedule 4.5 of the Company Disclosure Schedules, neither Seller, nor any direct or indirect Affiliate of such Seller (excluding any Acquired Company) is subject to any Order or Legal Proceeding except to the extent such Order or Legal Proceeding would not reasonably be expected to prohibit or restrain the ability of such Seller to enter into this Agreement or consummate the Transactions.
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4.6 Brokers’ Fee.Except as set forth on Schedule 6.22 of the Company Disclosure Schedules, which arrangements shall be accounted for as Company Transaction Expenses, such Seller has not entered into any agreement with any Person that would obligate any Acquired Company to pay any commission, brokerage, financial advisory, investment banker fee, “finder’s fee” or similar fee in connection with the consummation of the Transactions.
4.7 Leakage. Except as set forth on Schedule 6.23(a) of the Company Disclosure Schedules, from the Locked Box Date to the Put Option Date, neither such Seller nor any of its Related Leakage Parties has received or benefited from, or entered into any agreement, arrangement or commitment (whether or not conditional) to receive or benefit from, any Leakage, other than Permitted Leakage.
4.8 Portfolio Company Arrangements.Except as set forth on Schedule 4.8 of the Company Disclosure Schedules, to the knowledge of such Seller, there are, and since the Lookback Date there have been, no Contracts, arrangements or transactions between the Blocker or any Acquired Company, on the one hand, and any portfolio or investee company of such Seller or the Sponsor or their respective Affiliates, on the other hand, involving payments to or by the Blocker or any Acquired Company in excess of $10,000,000 in any calendar year.
4.9 30% Rule Vehicles.The Exal Seller represents and warrants to Buyer that:
(a) the Firmoront Blocker Seller is a corporation validly existing under the Laws of the Province of Ontario, Canada, and is the sole legal and beneficial owner of the Firmoront Seller Blocker Shares, the Trivium Packaging Shares, the Aluminum Packaging Shares and the Exal Holdings Shares, which together constitute all of the Equity Securities of, and all rights to acquire Equity Securities of, the Blocker and the Acquired Companies held by the Firmoront Blocker Seller or any of its Affiliates (other than the Sellers and their Subsidiaries);
(b) other than the Firmoront Blocker Seller, no Person that is or was formed or used as part of the Sponsor’s compliance structure under the “30% Rule” in respect of the Blocker or the Acquired Companies (including Secmoront Corp. and Thirdmoront Corp.) holds, or has any right to acquire, any Equity Securities of the Blocker or any Acquired Company;
(c) Schedule 4.9 of the Company Disclosure Schedules sets forth a true and complete list of the Voting Agreements, in effect as of the Put Option Date, true and complete copies of which (including all amendments, restatements and assignments) have been made available to Buyer, and other than this Agreement and the other Transaction Documents, the Voting Agreements and the Organizational Documents of the Blocker and the applicable Acquired Companies, there is no Contract in effect as of the Put Option Date with respect to the voting, redemption, sale, transfer or other disposition of any Equity Securities held by the Firmoront Blocker Seller, and neither Secmoront Corp. nor Thirdmoront Corp. is a party to any Contract with the Blocker or any Acquired Company that remains in effect; and
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(d) the Exal Seller has, and at the Closing will have, the right (whether pursuant to the Voting Agreements or otherwise) to cause the Redemption to be consummated in accordance with the Redemption Agreement and to cause the Voting Agreements to be terminated, in each case without the consent of any Person other than the Firmoront Blocker Seller and its Affiliates, the Blocker and the Acquired Companies.
4.10 Non-Reliance.Except for the specific representations and warranties expressly made by Buyer in Article VII of this Agreement, and subject to the specifically bargained-for exclusive remedies as set forth in this Agreement, each Seller, on behalf of itself, the Blocker (as applicable) and the Company, represents and warrants to Buyer that it is not relying upon, and will not rely upon, (a) any representation or warranty, express or implied, at law or in equity, made by any Person in respect of Buyer or Buyer’s businesses, assets, liabilities, operations, prospects, or condition (financial or otherwise), including the accuracy or completeness of any confidential information memoranda, documents, projections, forward-looking statements, forecasts, opinions, advice, material, statement, data, or other information (financial or otherwise) regarding Buyer provided to, or otherwise made available to, the Sellers, the Blocker or the Company or their respective Representatives in connection with the Transactions, and (b) any Person providing or not providing any information not specifically required to be provided or disclosed pursuant to the specific representations and warranties set forth in Article VII of this Agreement.
ARTICLE V
REPRESENTATIONS AND WARRANTIES REGARDING THE BLOCKER
Except as set forth on the Company Disclosure Schedules, the Blocker hereby represents and warrants to Buyer that:
5.1 Organization and Good Standing.The Blocker is duly organized and validly existing under the Laws of the Netherlands and has all requisite power and authority to own, lease and operate its material properties, rights and assets and to carry on its business in all material respects as now conducted. There are no Legal Proceedings pending or threatened in writing for dissolution, liquidation or insolvency of the Blocker.
5.2 Authorization of Agreement.The Blocker has all requisite power and authority to execute and deliver this Agreement and any Transaction Documents to which the Blocker is a party, to perform its obligations hereunder and thereunder, and to consummate the Transactions. The execution, delivery and performance of this Agreement by the Blocker and any Transaction Documents to which the Blocker is a party and the consummation by the Blocker of the Transactions have been (or, with respect to any Transaction Document to be entered into at the Closing, will have been as of the Closing) duly authorized by all necessary action, and no other proceedings on the part of the Blocker and no additional approvals are necessary to authorize the execution, delivery and performance of this Agreement and any Transaction Documents to which the Blocker is a party and the consummation of the Transactions. This Agreement has been (or, with respect to any Transaction Document to be entered into at the Closing, will have been as of the Closing) duly and validly executed and delivered by the Blocker and assuming the due authorization, execution and delivery by the other parties hereto and thereto, this Agreement constitutes, and any Transaction Document when so executed and delivered by the Blocker will constitute, the legal, valid and binding obligation of the Blocker, enforceable against the Blocker in accordance with its terms, except to the extent that enforceability thereof may be limited by the Equitable Exceptions.
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5.3 Ownership of the Shares; Capitalization.
(a) The Blocker is the sole legal and beneficial owner of all of the Blocker Company Shares, free and clear of any and all Liens (other than restrictions arising under the Organizational Documents of the Acquired Companies or restrictions relating to the transferability of securities under applicable securities Laws).
(b) After giving effect to the Redemption, (i) the Exal Seller Blocker Shares will constitute all of the issued and outstanding shares in the share capital of the Blocker and (ii) the Exal Seller is the sole legal and beneficial owner of the Exal Seller Blocker Shares and has the right to exercise all voting, economic and other rights over the Exal Seller Blocker Shares.
(c) The Blocker has never issued a joint and several liability declaration as described in Section 2:403 of the Dutch Civil Code and no such declarations have been issued in respect of the Blocker.
(d) Except for this Agreement and the Organizational Documents of the Blocker, there are no other documents relating to the authority, purpose, duration or rules relating to the operation of the Blocker, its shareholders’ meeting, the management board or other corporate bodies of the Blocker and after giving effect to the Redemption, no Person has the right (whether exercisable now or in the future and whether contingent or not) to call for the conversion, issue, registration, sale or transfer or repayment of any shares of capital stock of the Blocker or any other security giving rise to a right over, or an interest in, the capital of the Blocker under any option, agreement or other arrangement (including conversion rights and rights of preemption). Other than this Agreement, the Voting Agreements and the Organizational Documents of the Blocker, as of the Put Option Date, the Blocker is not a party to any voting trust or other Contract with respect to the voting, redemption, sale, transfer or other disposition of the shares in the share capital of the Blocker.
5.4 Non-contravention.None of the execution, delivery or performance of this Agreement or the other Transaction Documents, the consummation of the Transactions or compliance by the Blocker with any of the provisions hereof or thereof will (a) conflict with or violate in any material respect any Law to which the Blocker is subject, (b) conflict with or violate in any material respect any provision of any Organizational Documents of the Blocker or (c) materially conflict with, result in a breach or violation of or any loss of any benefit under or termination of, constitute a default under, result in the acceleration of, create in any Person the right to accelerate, terminate, modify or cancel, require any notice, authorization, approval or consent under, or result in the imposition of any Lien (other than Permitted Liens) upon any of the material rights, properties or assets of the Blocker under any Contract or Permit to which the Blocker is a party. Except as required by applicable Antitrust Laws and the execution of the Notarial Transfer Deeds, the Blocker is not required to provide any notice to, make any filing with or obtain any authorization, consent or approval of any Governmental Body in order for the Blocker to consummate the Transactions, except in each case where the failure to give such notice or obtain such approval would not prohibit, restrain or otherwise materially delay the Blocker’s performance of this Agreement or ability to consummate the Transactions (including the Redemption).
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5.5 Litigation.There are no, and since the Lookback Date there have not been, any Legal Proceedings pending or threatened in writing against the Blocker that would prohibit, restrain or otherwise materially delay the Blocker’s performance under this Agreement or ability to consummate the Transactions (including the Redemption).
5.6 Compliance with Laws.The Blocker is, and since the Lookback Date has been, in compliance with all Laws applicable to its business or operations in all material respects. Since the Lookback Date, the Blocker has not received any written notice of or been charged with the violation of any Laws which would reasonably be expected to result in liability to the Blocker, except for any such violation that would not prohibit, restrain or otherwise materially delay the Blocker’s performance of this Agreement or ability to consummate the Transactions (including the Redemption).
5.7 Holding Company.The Blocker does not have any material operations, assets or liabilities, and does not engage in, and has never engaged in, any business activities, other than (a) the ownership of the Blocker Company Shares and (b) business activities related to its formation and its equity capital and the issuance of indebtedness to its equityholders, in each case, including any activities related or incidental thereto. The Blocker (i) neither has, nor has ever had, any employees and (ii) does not own or lease, and has never owned or leased, any real property or personal property. The Blocker was formed for the sole purpose of holding the Blocker Company Shares. The Blocker has not incurred or become subject to any indebtedness or other liabilities other than (x) liabilities for Taxes, (y) liability for routine operating expenses incurred in the Ordinary Course of Business, including the preparation of financial statements and the preparation and filing of Tax Returns, and (z) obligations arising under its Organizational Documents and the Transaction Documents. The Blocker is not a party to any Contract other than its Organizational Documents, other Contracts entered into in connection with its ownership of the Blocker Company Shares (copies of which have been made available to Buyer) and Contracts which will be terminated at or prior to the Closing with no surviving liability or obligation of the Blocker.
5.8 Tax Matters.
(a) The Blocker has filed all income and other material Tax Returns that are required to be filed by or with respect to the Blocker (taking into account any extensions of time to file), and all such Tax Returns are true, correct, and complete in all material respects, and all income and other material Taxes (whether or not shown on any Tax Return) owed by the Blocker have been paid.
(b) The Blocker has complied with all Tax withholding requirements and all Tax-related information reporting requirements in all material respects (including any dividend withholding Taxes in respect of distributions to its shareholders).
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(c) The Blocker is not currently the subject of any audit or other examination with respect to any material Taxes by any Taxing Authority with respect to any open Tax years and the Blocker has not been informed in writing that any such audit or other examination is contemplated or pending. No income or other material Tax deficiencies have been asserted against the Blocker in writing by a Taxing Authority. The Blocker has not waived or extended the limitations period with respect to any material Tax or material Tax Return, which waiver or extension would be in effect after the Closing. There are no material Liens for Taxes upon any of the properties or assets of the Blocker, other than Permitted Liens.
(d) The Blocker is, and has at all times been, treated as a corporation for U.S. federal income tax purposes, and no entity classification election pursuant to Treasury Regulations Section 301.7701-3 has been made, or is pending or outstanding, with respect to the Blocker.
(e) The Blocker is, and has at all times been, resident for Tax purposes solely in the Netherlands and does not have, and has not at any time had, any branch, agency, permanent establishment or other taxable presence in any jurisdiction other than the Netherlands.
(f) The Blocker has no liability for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any corresponding or similar provision of state, local or non-U.S. Law), as a transferee or successor, or by Contract (other than customary commercial agreements entered into in the Ordinary Course of Business the principal purpose of which does not relate to Taxes).
(g) The Blocker is not a party to or bound by any Tax sharing, Tax allocation, Tax indemnity or similar agreement or arrangement (other than customary commercial agreements entered into in the Ordinary Course of Business the principal purpose of which does not relate to Taxes), and the Blocker is not, and has never been, a member of any affiliated, consolidated, combined, unitary or similar group for any Tax purpose, including any fiscal unity (fiscale eenheid) for Netherlands corporate income tax or value added tax purposes.
(h) No written claim has been made by any Governmental Body in a jurisdiction where the Blocker does not file Tax Returns that the Blocker is or may be subject to taxation by, or required to file Tax Returns in, such jurisdiction, which claim has not been finally resolved.
(i) The Blocker has not participated in any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4 (or any similar provision of state, local or non-U.S. Law).
(j) The Blocker will not be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date as a result of any (i) change in, or improper use of, any method of accounting for a taxable period ending on or prior to the Closing Date, (ii) closing agreement described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law) executed on or prior to the Closing Date, (iii) installment sale or open transaction disposition made on or prior to the Closing or (iv) prepaid amount received, or deferred revenue recognized, on or prior to the Closing Date, in each case, arising outside the Ordinary Course of Business.
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(k) All transactions and arrangements between the Blocker and any related party have been entered into on arm’s-length terms in compliance with applicable transfer pricing Laws, and the Blocker has prepared and maintained in all material respects all transfer pricing documentation required under applicable Law.
(l) There is no material advance tax ruling, advance pricing agreement, private letter ruling or similar agreement or ruling in effect, or requested and currently pending, with respect to material amounts of Taxes of the Blocker (including any advance tax ruling or advance pricing agreement issued by any Taxing Authority).
(m) The Blocker (i) is not, and has never been, engaged in a trade or business within the United States for U.S. federal income tax purposes, (ii) does not have, and has never had, any income that is effectively connected with the conduct of a trade or business within the United States, (iii) is not required to file, and has never been required to file, any U.S. federal, state or local Tax Return and (iv) has not made an election under Section 897(i) of the Code to be treated as a domestic corporation.
(n) All records that the Blocker is required to keep for Tax purposes have been duly kept and are available for inspection at the premises of the Blocker or its Representatives.
(o) The Blocker does not qualify as a real estate investment company (onroerendezaakrechtspersoon) within the meaning of Article 4 of the Dutch Legal Transfer Tax Act 1970 (Wet op belastingen van rechtsverkeer 1970).
5.9 Related Party Agreements.Except for (a) the Organizational Documents of the Blocker, (b) the Blocker’s directors’ and officers’ liability insurance policy, (c) any intercompany liabilities or obligations between or among the Blocker or any of the Acquired Companies or (d) any indemnification agreement with any of the Blocker’s directors or officers, no director or officer of the Blocker nor any owner of more than five percent (5%) of the Equity Securities of the Blocker (i) is a party to any material Contract or other commitment to which the Blocker is a party or by which any of their respective assets or properties is bound, or (ii) to the knowledge of the Blocker, has a material interest in any such agreement, arrangement, contract or commitment to which the Blocker is a party or by which any of its assets or properties is bound.
5.10 Brokers’ Fee.Except as set forth on Schedule 6.22 of the Company Disclosure Schedules, which arrangements shall be accounted for as Company Transaction Expenses, the Blocker has not entered into any agreement with any Person that would obligate the Blocker to pay any commission, brokerage, financial advisory, investment banker fee, “finder’s fee” or similar fee in connection with the consummation of the Transactions.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES REGARDING THE ACQUIRED COMPANIES
Except as set forth on the Company Disclosure Schedules, the Company hereby represents and warrants to Buyer that:
6.1 Organization and Good Standing.The Company is a private company with limited liability duly organized and validly existing under the Laws of the Netherlands and has all requisite corporate power and authority to own, lease and operate its material properties, rights and assets and to carry on its business in all material respects as now conducted. The Company is duly qualified or authorized to do business as a foreign corporation and is in good standing under the Laws of each jurisdiction in which it owns or leases real property and each other jurisdiction in which the conduct of its business or the ownership of its properties and assets requires such qualification or authorization, except where the failure to be so qualified, authorized or in good standing would not be material, individually or in the aggregate, to the Acquired Companies, taken as a whole. True, complete and correct copies of the Organizational Documents of the Company, each as amended and otherwise in effect as of the Put Option Date, have been made available to Buyer.
6.2 Authorization of Agreement.The Company has all requisite power and authority to execute and deliver this Agreement and each other Transaction Document to be executed by the Company in connection with the consummation of the Transactions (including, for the avoidance of doubt, the Put Option Agreement) (the “Company Documents”), to perform its obligations hereunder and thereunder, and to consummate the Transactions. The execution, delivery and performance of this Agreement by the Company and the Company Documents and the consummation of the Transactions have been (or, with respect to any Company Document to be entered into at the Closing, will have been as of the Closing) duly authorized by all necessary action, and no other action on the part of the Company is necessary to authorize the execution, delivery and performance of this Agreement and each of the Company Documents, to perform its obligations hereunder and thereunder, and the consummation of the Transactions. This Agreement and the Company Documents have been (or, with respect to any Company Document to be entered into at the Closing, will have been as of the Closing) duly and validly executed and delivered by the Company and assuming the due authorization, execution and delivery by the other parties hereto and thereto, this Agreement constitutes, and each Company Document when so executed and delivered will constitute, the legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, except to the extent that enforceability thereof may be limited by the Equitable Exceptions.
6.3 Conflicts; Consents of Third Parties.
(a) None of the execution and delivery by the Company of this Agreement or the Company Documents, the consummation by the Company of the Transactions, or compliance by the Company with any of the provisions hereof or thereof will (i) conflict with or violate any provision of the Organizational Documents of the Company; (ii) conflict with, result in a breach or violation of, or any loss of any benefit under or termination of, constitute a default under, result
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in the acceleration of, create in any Person the right to accelerate, terminate, modify or cancel, require any notice, authorization, approval or consent under, or result in the imposition of any Lien upon any of the rights, properties or assets of any Acquired Company under any provision of any Material Contract, or material Permit to which any Acquired Company is a party; or (iii) conflict with or violate any Law or Order applicable to any Acquired Company or by which any of the properties or assets of any Acquired Company are bound, other than, in the case of clauses (ii) and (iii), such conflicts, violations, defaults, terminations or cancellations that are not, or would not reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole.
(b) Assuming the accuracy of the representations and warranties of Buyer set forth in Section 7.3, no consent, waiver, approval, Order, Permit or authorization of, or declaration or filing with, or notification to, any Governmental Body is required on the part of any Acquired Company in connection with the execution, delivery and performance by the Company of this Agreement or the Company Documents, the compliance by the Company with any of the provisions hereof or thereof, or the consummation by the Company of the Transactions, except for (i) filings required under and in compliance with the applicable requirements of the HSR Act and the other Antitrust Laws, (ii) any other consent, waiver, approval, Order, Permit or authorization the failure of which to obtain would not be, individually or in the aggregate, material to the Acquired Companies, taken as a whole, (iii) the execution of the Notarial Transfer Deeds and (iv) those that may be required solely by reason of Buyer’s (as opposed to any other third party’s) participation in the Transactions.
6.4 Capitalization.
(a) Schedule 6.4(a) of the Company Disclosure Schedules sets forth, as of the Put Option Date, all of the authorized share capital of the Company and the number and class of all issued and outstanding ordinary shares in the share capital of the Company (collectively, the “Company Shares”), including the record holders thereof. All outstanding Company Shares have been duly authorized and are validly issued and fully paid up (volgestort) and have not been issued in violation of any stockholder agreement, proxy, voting trust or similar agreement, or purchase options, call options, preemptive rights, subscription rights, rights of first offer, rights of first refusal or similar rights of any Person. After giving effect to the Redemption, (i) the Blocker Company Shares and the Ardagh Seller Shares constitute all of the issued and outstanding Company Shares, (ii) the Blocker and the Ardagh Seller are the sole legal and beneficial owners of the Company Shares and have the right to exercise all voting, economic and other rights over the Company Shares and (iii) the Blocker and the Ardagh Seller have good and valid title to the Company Shares, free and clear of all Liens (other than restrictions arising under the Organizational Documents of the Acquired Companies or restrictions relating to the transferability of securities under applicable securities Laws).
(b) No Acquired Company has ever issued a joint and several liability declaration as described in Section 2:403 of the Dutch Civil Code and no such declarations have been issued in respect of any Acquired Company.
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(c) Except for this Agreement or the Organizational Documents of the Company, there is no outstanding option, warrant, call, right, or Contract of any character to which the Company is a party requiring, and there are no securities of the Company outstanding which upon conversion or exchange would require, the issuance of any shares of capital stock of the Company or other securities convertible into, exchangeable for or evidencing the right to subscribe for or purchase shares of capital stock of the Company, including any equity or equity-based award (e.g., cash based on the value of such capital stock pursuant to any phantom equity or similar arrangement). The Company is not a party to any voting trust or other Contract with respect to the voting, redemption, sale, transfer or other disposition of the Company Shares.
6.5 Subsidiaries.
(a) Schedule 6.5(a) of the Company Disclosure Schedules sets forth a true, complete and accurate list of the name of each of the Company Subsidiaries, and, with respect to each Company Subsidiary: (i) the jurisdiction in which it is incorporated or organized (as applicable); and (ii) the number and class of shares or other Equity Securities thereof duly authorized, issued and outstanding, the names of all record holders thereof and the number and type of shares of stock, membership interests or other Equity Securities held by each such holder or owner, in each case, as of the Put Option Date. The outstanding shares or other Equity Securities of each of the Company Subsidiaries are validly issued, fully paid and non-assessable, to the extent such concepts are applicable to such Equity Securities, and such Equity Securities have not been issued in violation of any preemptive rights (except to the extent provided by applicable Law and other than such rights as may be held by any Acquired Company), and all such shares or other Equity Securities represented as being owned by the Company or a Company Subsidiary are owned by it free and clear of any Liens, other than restrictions arising under the Organizational Documents of the Acquired Companies or restrictions relating to the transferability of securities under applicable securities Laws, Liens created by acts of Buyer or any of its Affiliates and Permitted Liens.
(b) Each of the Company Subsidiaries is a duly organized and validly existing corporation or other entity in good standing to the extent such concepts are recognized under the Laws of the jurisdiction of its incorporation or organization, and has all requisite corporate (or similar entity) power and authority to own, lease and operate its properties and to carry on its business as presently conducted, except where the failure to be so organized, existing and in good standing or to have such power and authority would not be, individually or in the aggregate, material to the Acquired Companies, taken as a whole. Each of the Company Subsidiaries is duly qualified or authorized to do business as a foreign corporation or entity and is in good standing to the extent such concepts are recognized under the Laws of each jurisdiction in which the conduct of its business or the ownership of its properties requires such qualification or authorization, except where the failure to be so qualified, authorized or in good standing would not be, individually or in the aggregate, material to the Acquired Companies, taken as a whole. True, complete and correct copies of the Organizational Documents of each Company Subsidiary, each as amended and otherwise in effect as of the Put Option Date, have been made available to Buyer.
(c) There is no outstanding option, warrant, call, right or Contract to which any of the Company Subsidiaries is a party requiring, and there are no convertible securities of any of the Company Subsidiaries outstanding which upon conversion would require, the issuance of any shares of capital stock or other Equity Securities of any of the Company Subsidiaries or other securities convertible into shares of capital stock or other Equity Securities of any of the Company
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Subsidiaries. None of the shares of stock or other Equity Securities of any Company Subsidiary were issued in violation of any stockholder agreement, proxy, voting trust or similar agreement, or purchase options, call options, preemptive rights, subscription rights, rights of first offer, rights of first refusal or similar rights of any Person. Except as set forth on Schedule 6.5(c) of the Company Disclosure Schedules, no Company Subsidiary is a party to any voting trust or other Contract with respect to the voting, redemption, sale, transfer or other disposition of the capital stock of such Company Subsidiary. Neither the Company nor any of the Company Subsidiaries owns any stock, partnership interest, joint venture interest or other equity ownership interest in any Person other than the Company Subsidiaries.
6.6 Financial Statements.
(a) The Company has made available to Buyer copies of: (i) the audited consolidated balance sheet of the Acquired Companies reflected therein as at December 31, 2025 and December 31, 2024, the related audited consolidated statements of operations, stockholders’ equity and cash flow of the Acquired Companies for the fiscal years then ended, together with the notes thereto (collectively, the “Audited Financial Statements”); and (ii) the unaudited consolidated balance sheet of the Acquired Companies as of June 30, 2026 (the “Balance Sheet Date”) and the related unaudited consolidated statements of operations and cash flows of the Acquired Companies for the six-month period then ended (the “Interim Financial Statements” and, collectively with the Audited Financial Statements, the “Financial Statements”). The Financial Statements have been prepared in accordance with the books and records of the Acquired Companies in all material respects and except as set forth in the notes to the Financial Statements and with the exception of the absence of normal year-end audit adjustments and footnotes in the Interim Financial Statements, each of the Financial Statements has been prepared in accordance with IFRS consistently applied and fairly presents in all material respects the consolidated financial position, results of operations and cash flows of the Acquired Companies as at the dates and for the periods indicated therein.
(b) The Acquired Companies have established and maintain a system of internal accounting controls sufficient to provide reasonable assurances (i) that transactions are recorded as necessary in all material respects to permit preparation of the financial statements of the Acquired Companies in accordance with IFRS, (ii) that transactions are, in all material respects, being entered into and subsequently recorded in accordance with appropriate authorizations of management or the applicable governing body of the Acquired Companies, as applicable, and (iii) regarding prevention or timely detection of unauthorized acquisition, use or disposition of assets of the Acquired Companies that could be material to the Financial Statements of the Acquired Companies. Each of the Acquired Companies maintains effective controls and procedures that are designed to ensure that all material information concerning the Acquired Companies is made known on a timely basis to the individuals responsible for the preparation of the Financial Statements.
(c) The accounts receivable reflected on the balance sheet of the Interim Financial Statements and the accounts receivable arising after the Balance Sheet Date (i) have arisen from bona fide transactions entered into by the Acquired Companies involving the sale of goods or the rendering of services in the Ordinary Course of Business and (ii) constitute only valid claims collectible in the Ordinary Course of Business, (A) subject to normal cash discounts accrued in the Ordinary Course of Business and (B) except (1) to the extent of (x) any specific reserves against any such accounts receivable reflected in the Financial Statements or (y) any allowance for doubtful accounts reflected in the Financial Statements and (2) as would not be, individually or in the aggregate, material to the Acquired Companies, taken as a whole.
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(d) The accounts payable reflected on the balance sheet of the Interim Financial Statements and the accounts payable arising after the Balance Sheet Date (i) have arisen from bona fide arm’s-length transactions entered into by the Acquired Companies in the Ordinary Course of Business, and (ii) have either been paid, are not yet due and payable in the Ordinary Course of Business, or are being contested by the applicable Acquired Companies in good faith, except in each case, as would not be, individually or in the aggregate, material to the Acquired Companies, taken as a whole.
(e) Except as disclosed on Schedule 6.6(e) of the Company Disclosure Schedules, all of the inventory, including raw materials, work-in-process, finished goods, supplies and other inventories, of the Acquired Companies is usable or salable in all material respects in the Ordinary Course of Business, subject to any reserves for obsolescence or surplus included in the Interim Financial Statements (other than write-offs, write-downs and reserves in the Ordinary Course of Business since the Balance Sheet Date). No inventory is slow-moving, obsolete, damaged or defective in any material respects, except for items that have been reserved for, written off or written down or adjusted to reflect the lower of cost or net realizable value in the Interim Financial Statements (other than write-offs, write-downs and reserves in the Ordinary Course of Business since the Balance Sheet Date). All of the inventory has been purchased or acquired by the Acquired Companies in the Ordinary Course of Business and is valued in all material respects in accordance with IFRS.
6.7 No Undisclosed Liabilities.None of the Acquired Companies has any liabilities of any kind or obligations (whether absolute or contingent, matured or unmatured, known or unknown), whether or not required to be reflected in or reserved against on the consolidated balance sheet of the Company, other than liabilities: (i) expressly reflected in or reserved against on the consolidated balance sheet of the Company as of the Balance Sheet Date or disclosed in the notes thereto; (ii) that have been incurred, accrued or reserved for in the Ordinary Course of Business after the Balance Sheet Date (none of which arises out of or in connection with breach or default under any Contract or violation of any Law); (iii) that will be incurred as contemplated by this Agreement or otherwise in connection with the Transactions; (iv) that have been discharged or paid off since the Balance Sheet Date; or (v) that would not reasonably be expected to be material to the Acquired Companies, taken as a whole. To the Knowledge of the Company, there are no liabilities of the Acquired Companies relating to any facilities which were owned or operated by the Acquired Companies since the Lookback Date, which are, as of the Put Option Date and the Closing Date, no longer owned or operated by the Acquired Companies.
6.8 Absence of Certain Developments.Except as required or expressly contemplated by this Agreement, since the Balance Sheet Date to the Put Option Date: (a) there has not been a Material Adverse Effect, (b) the Acquired Companies have conducted their respective businesses in the Ordinary Course of Business and (c) except for the Transactions, none of the Acquired Companies has taken any action that, had it occurred after the Put Option Date, would be prohibited by Section 8.2(b).
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6.9 Taxes.
(a) Each of the Acquired Companies has timely filed all material Tax Returns required to be filed by it, and all such Tax Returns are true, correct and complete in all material respects. All material Taxes (whether or not shown on any Tax Returns) owed by the Acquired Companies have either been paid or are reflected in accordance with IFRS (or, in the case of any Acquired Company organized in the United States or a jurisdiction thereof, GAAP as determined for U.S. financial accounting purposes) in the most recent financial statements of the Acquired Companies.
(b) All material amounts of Taxes required to be withheld by any Acquired Company have been withheld and have been (or will be) duly and timely paid to the proper Taxing Authority.
(c) No deficiencies for any material amounts of Taxes have been proposed, asserted or assessed in writing against any Acquired Company that are still pending. No dispute, audit, investigation, examination, proceeding or claim by any Taxing Authority concerning any material Tax liability of any Acquired Company is currently in progress.
(d) There are no Liens with respect to any material amount of Taxes upon any of the assets of the Acquired Companies, other than Permitted Liens.
(e) No Acquired Company will be liable for any additional material amount of Taxes relating to any taxable period (or portion thereof) ending on or prior to the Closing Date, other than Taxes (i) reflected or reserved against in the Locked Box Accounts (whether actual, deferred, contingent or disputed), (ii) incurred in the Ordinary Course of Business since the Locked Box Date or (iii) incurred in connection with the transactions contemplated by this Agreement.
(f) Since the date that is two years prior to the Put Option Date, no Acquired Company has been a “distributing corporation” or a “controlled corporation” in a distribution intended to qualify under Section 355(a) of the Code.
(g) No Acquired Company has participated in any “listed transaction” within the meaning of Treasury Regulations Section 1.6011-4 (or any similar provision of state, local or non-U.S. Law).
(h) No waiver of any statute of limitations relating to Taxes that would reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole, for which any Acquired Company may be liable is in effect, and no written request for any such waiver is outstanding, other than, in each case, automatic extensions or waivers obtained in the Ordinary Course of Business.
(i) No Acquired Company has been informed in writing by any Governmental Body in a jurisdiction in which such Acquired Company does not file Tax Returns that such Acquired Company is or may be required to file any Tax Return in, or pay any Taxes that would reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole, to such jurisdiction.
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(j) No Acquired Company is a party to or bound by any Tax sharing, Tax allocation, Tax indemnity or similar agreement or arrangement (other than customary commercial agreements entered into in the Ordinary Course of Business the principal purpose of which does not relate to Taxes), and no Acquired Company has been a member of any affiliated group within the meaning of Section 1504(a) of the Code (or any similar affiliated, consolidated, combined, unitary or fiscal group or unity under any corresponding or similar provision of state, local or non-U.S. Law), in each case, other than any such group the common parent of which is an Acquired Company, or has any liability for the Taxes of any other Person under Treasury Regulations Section 1.1502-6 (or any corresponding or similar provision of state, local or non-U.S. Law), as a transferee or successor, or by Contract (other than customary commercial agreements entered into in the Ordinary Course of Business the principal purpose of which does not relate to Taxes).
(k) No Acquired Company will be required to include any material item of income in, or exclude any material item of deduction from, taxable income for any taxable period (or portion thereof) beginning after the Closing Date, in each case, that would reasonably be expected to be material, individually or in the aggregate, to the Acquired Companies, taken as a whole, as a result of (i) any adjustment under Section 481 of the Code (or any similar provision of state, local or non-U.S. Law) by reason of a change in, or improper use of, any method of accounting for a taxable period ending on or prior to the Closing Date, (ii) any closing agreement described in Section 7121 of the Code (or any corresponding or similar provision of state, local or non-U.S. Law) executed on or prior to the Closing Date, (iii) any installment sale or open transaction disposition made on or prior to the Closing, (iv) any prepaid amount received, or deferred revenue recognized, on or prior to the Closing Date or (v) any intercompany transaction or excess loss account described in Treasury Regulations Sections 1.1502-13 and 1.1502-19 (or any corresponding or similar provision of state, local or non-U.S. Law), in each case, arising outside the Ordinary Course of Business.
(l) Each Acquired Company is, and has at all times since the Lookback Date been, resident for Tax purposes solely in its jurisdiction of organization and does not have, and has not at any time since the Lookback Date had (other than in the Ordinary Course of Business), any branch, agency, permanent establishment or other taxable presence in any jurisdiction other than its jurisdiction of organization or incorporation.
(m) Each Acquired Company that is required by applicable Law to be registered for VAT purposes is duly so registered and has complied in all material respects with all applicable Laws relating to VAT.
(n) All transactions between or among any Acquired Company, on the one hand, and any Seller, the Blocker or any of their respective Affiliates, on the other hand, and all intercompany transactions among the Acquired Companies, have been conducted on arm’s-length terms, and each Acquired Company has prepared and maintained all transfer pricing documentation required by applicable Law, in each case, in all material respects, and there are no material outstanding rulings of, or ongoing disputes with, any Taxing Authority with respect to transfer prices of any Acquired Company that would reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole.
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(o) Schedule 6.9(o) of the Company Disclosure Schedules sets forth the U.S. federal income tax entity classification of each Acquired Company, and no Acquired Company has made, or has pending or outstanding, any entity classification election pursuant to Treasury Regulations Section 301.7701-3 other than as set forth thereon.
(p) To the Knowledge of the Company, no Acquired Company has, and at no time since the Lookback Date has had, any direct or indirect “United States shareholder” within the meaning of Section 951(b) of the Code.
(q) To the Knowledge of the Company, no Acquired Company is, and at no time since the Lookback Date has been, (i) a “controlled foreign corporation” within the meaning of Section 957 of the Code (determined without regard to Section 958(b)(4) of the Code as in effect for taxable years beginning before January 1, 2026) or (ii) a “surrogate foreign corporation” within the meaning of Section 7874(a)(2)(B) of the Code or treated as a domestic corporation pursuant to Section 7874(b) of the Code.
(r) No Acquired Company organized in the United States is or has been a “United States real property holding corporation” within the meaning of Section 897(c)(2) of the Code during the applicable period specified in Section 897(c)(1)(A)(ii) of the Code, and no Equity Securities of, or other interests in, any Acquired Company organized in the United States constitute “United States real property interests” within the meaning of Section 897(c)(1) of the Code.
(s) The Acquired Companies are, and have been, in material compliance with all escheat and unclaimed property Laws applicable to the Acquired Companies, have filed all material escheat and unclaimed property reports required to be filed by the Acquired Companies, and have turned over to the appropriate Taxing Authority any property in their possession subject to any escheat and unclaimed property Laws and required to be turned over.
(t) All records that the Acquired Companies are required to keep for Tax purposes under applicable Tax Law have been duly kept and are available for inspection at the premises of the Acquired Companies or their Representatives and such records are true and correct in all material respects.
(u) Since the Lookback Date, other than in connection with the Transactions, no Person has acquired a right to acquire shares or securities the exercise or disposal of which, or has acquired any shares or securities the acquisition or disposal of which, gave rise to or may give rise to a liability for Tax of any Acquired Company.
(v) To the Knowledge of the Company, other than the execution, completion or performance of this Agreement or the consummation of the Transactions, no other event since the Locked Box Date, will result in (a) the withdrawal of any material Relief granted to any Acquired Company, (b) any material chargeable asset being deemed to have been disposed of and reacquired by any Acquired Company or (c) any Acquired Company becoming liable for any other similar material deemed disposal or degrouping charge.
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(w) All claims made by any Acquired Company for the transfer or surrender of any Relief between members of the same Tax group (“Group Relief”) in the last six years were valid when made and there are no circumstances which are likely to result in any such claims being denied, disallowed or withdrawn. Except as provided in the Locked Box Accounts, no Acquired Company is or will be obliged to make any material payment for Group Relief in respect of any period ending on or before the Closing.
(x) No Taxing Authority has agreed to operate any material special arrangement or agreement (being an arrangement or agreement not based on a strict and detailed application of the relevant legislation) in relation to any Acquired Company’s Tax affairs, and no Acquired Company has entered into a material ruling or similar agreement in relation to Tax with any Taxing Authority.
(y) No Acquired Company qualifies as a real estate investment company (onroerendezaakrechtspersoon) within the meaning of Article 4 of the Dutch Legal Transfer Tax Act 1970 (Wet op belastingen van rechtsverkeer 1970).
(z) There have been no changes in the direct or indirect shareholder structure of the Company since the acquisition of TP Erftstadt GmbH and TP Germany GmbH (other than the Transactions) which could (i) result in material German real estate transfer tax implications or (ii) materially impair the Tax attributes of the German Acquired Companies.
(aa) The Locked Box Accounts include full provision or reserve (as appropriate) in accordance with the relevant accounting standards for all material amounts of Taxes (whether actual, deferred, contingent or disputed) liable to be assessed on any Acquired Company or for which any Acquired Company is accountable in respect of income, profits or gains earned, accrued or received on or before the Locked Box Date or arising in respect of any event occurring or deemed to occur on or before the Locked Box Date.
6.10 Real Property.
(a) Schedule 6.10(a) of the Company Disclosure Schedules sets forth a true, complete and correct list of all material leases, subleases, licenses and occupancy agreements of real property (“Leased Real Property”), in effect on the Put Option Date, with respect to which any Acquired Company is the tenant, subtenant, licensee or occupant (individually, a “Real Property Lease” and, collectively, the “Real Property Leases”). Subject to the Equitable Exceptions, the applicable Acquired Company has a valid, binding and enforceable leasehold interest under each of the Real Property Leases, free and clear of all Liens other than Permitted Liens, except as would not reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole. No event has occurred in the last six months or condition exists that with notice or lapse of time, or both, would constitute a material default by an Acquired Company under any of the Real Property Leases, other than defaults that have been cured or waived in writing. The applicable Acquired Company has the right to use all of the Leased Real Property that is the subject of any Real Property Lease for the full term of each such Real Property Lease (and any renewal options) relating thereto. No Acquired Company has assigned, transferred or pledged any interest in any of the Real Property Leases. The Company has provided Buyer with a true, complete and correct copy of the notice set forth on Schedule 6.10(a) of the Company Disclosure Schedule.
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(b) Schedule 6.10(b) of the Company Disclosure Schedules sets forth a true, complete and correct list of all real property owned by the Acquired Companies (“Owned Real Property”) and the record owner thereof. An Acquired Company owns good and valid title (and marketable title to the extent applicable) in fee simple to the Owned Real Property, free and clear of all Liens other than Permitted Liens. No Acquired Company is obligated or bound by any material options, obligations or rights of first refusal or contractual rights to sell, lease or acquire any real property (except under the Real Property Leases). The use and occupancy of the Owned Real Property by the Acquired Companies and the conduct of the business thereat as currently conducted do not violate in any material respect any Permitted Lien.
(c) Except as would not be, individually or in the aggregate, material to the Acquired Companies, taken as a whole, (i) neither the whole nor any part of the Real Property is subject to any pending condemnation or other taking by any Governmental Body, and, to the Knowledge of the Company, no such condemnation or other taking is threatened or contemplated; (ii) the use and occupancy of the Real Property by the applicable Acquired Company and the conduct of the business thereat as presently conducted do not violate any applicable Laws (including zoning Laws); (iii) there are no leases, subleases, licenses, or other agreements granting to any Person the right of use or occupancy of any portion of the Real Property (except under the Real Property Leases); (iv) all buildings, structures, facilities and improvements located on the Owned Real Property, including buildings, structures, facilities and improvements which are under construction (collectively, “Improvements”) comply with valid and current certificates of occupancy or similar Permits to the extent required by Laws for the use thereof, and conform with all applicable Laws; and (v) the Improvements are (A) in good operating condition and repair (ordinary wear and tear excepted) and (B) suitable and adequate for continued use in the manner in which they are presently being used. True, correct and complete copies of the most recent title commitments, opinions and policies, surveys, appraisals and property zoning reports in the possession, control or custody of any Acquired Company with respect to the Real Property have been made available to Buyer. The Real Property constitutes all of the real property used by the Acquired Companies in the conduct of the business.
6.11 Personal Property. Except as disposed of in the Ordinary Course of Business, each Acquired Company has good, valid and marketable title to, or a valid leasehold interest in, all material items of tangible personal property and equipment necessary for the business or operations of the Acquired Companies and reflected on the Interim Financial Statements as being owned or leased by the Acquired Companies, free and clear of all Liens other than Permitted Liens. Each such item of material tangible personal property or equipment is, in all material respects, in reasonable operable condition and repair, subject to normal wear and tear, ongoing repairs or refurbishments in the Ordinary Course of Business and obsolescence in the Ordinary Course of Business.
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6.12 Intellectual Property.
(a) Schedule 6.12(a) of the Company Disclosure Schedules contains a list of all the material patents, registered trademarks, registered copyrights, and Internet domain names, and pending applications for any of the foregoing that are owned by any Acquired Company (“Owned Registered IP”). To the Knowledge of the Company, the registered or issued Intellectual Property set forth on Schedule 6.12(a) of the Company Disclosure Schedules is subsisting and valid. Except as would not be, individually or in the aggregate, material to the Acquired Companies, taken as a whole, (i) an Acquired Company exclusively owns all Owned IP, free and clear of all Liens other than Permitted Liens, and (ii) the Acquired Companies have a valid license to use all other Intellectual Property used in and necessary for the operation of their businesses.
(b) Except as would not be, individually or in the aggregate, material to the Acquired Companies, taken as a whole, (i) none of the Acquired Companies or the operation of the business of the Acquired Companies infringes, misappropriates or otherwise violates, or has in the past five years infringed, misappropriated or otherwise violated, the Intellectual Property of any third party, (ii) there are no, and in the past five years there have been no, pending Legal Proceedings or written charges, complaints, demands, or notices from any third party to any of the Acquired Companies, alleging the same or challenging the ownership by the Acquired Companies of or the validity or enforceability of any Owned IP and (iii) to the Knowledge of the Company, no third party is infringing, misappropriating, or otherwise violating, and has not in the past five years infringed, misappropriated, or otherwise violated, any Owned IP, and in the past five years, no Acquired Company has sent any written charges, complaints, demands, or notices to any third party alleging the same.
(c) The Acquired Companies take commercially reasonable steps to maintain the confidentiality of trade secrets and other material confidential information included in the Owned IP and any trade secrets and other material confidential information in the possession of the Acquired Companies for which they owe a third party a duty of confidentiality. Each employee, consultant and contractor of the Acquired Companies engaged or employed as of the Put Option Date or during any period since the Lookback Date who materially contributed to the development of any material Owned IP has executed a written Contract assigning all right, title and interest of such employee, consultant or contractor in such Intellectual Property to an Acquired Company and agreeing to confidentiality provisions covering the confidential information of the Acquired Companies.
(d) The Acquired Companies do not own any software that is material to the operation of the business of the Acquired Companies, taken as a whole. The Acquired Companies do not own any artificial intelligence tool that is material to the operation of the business of the Acquired Companies and are not engaged in the training or commercialization of any such tool that is material to the business of the Acquired Companies, taken as a whole.
(e) The Acquired Companies’ IT Systems perform in a manner that permits the Company to conduct its business or operations as currently conducted in all material respects, and in the twelve (12) month period preceding the Put Option Date, the Acquired Companies’ IT Systems have not suffered a material malfunction or security breach, except where such malfunction or security breach has been remediated in all material respects.
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6.13 Material Contracts.
(a) Schedule 6.13(a) of the Company Disclosure Schedules sets forth all of the following Contracts (including all amendments and supplements thereto), other than any Company Benefit Plan, to which an Acquired Company is a party or by which it or any of its assets is bound and in effect as of the Put Option Date (collectively, the “Material Contracts”):
(i) material collective bargaining agreements, and other material Contracts with any works council, economic and social committee, labor union or other employee representative body representing any employee of an Acquired Company or to which any Acquired Company is a party or by which any Acquired Company is bound;
(ii) Contracts for the sale of all or a portion of any of the assets of an Acquired Company (x) within the last two (2) years or (y) which have ongoing covenants or agreements in effect in respect of any Acquired Company, in each case, for consideration in excess of $15,000,000 (other than sales or dispositions of inventory or other assets in the Ordinary Course of Business);
(iii) Contracts relating to any acquisition or disposition of any operating business, material assets or the share capital or other Equity Securities by an Acquired Company, in each case, (A) for consideration in excess of $20,000,000 and (B) that contain representations, warranties, covenants, indemnities or other obligations of such Acquired Company that are still in effect;
(iv) Contracts pursuant to which an Acquired Company is a party to a material joint venture, strategic alliance or general or limited partnership;
(v) Contracts containing any covenant restricting, impairing, prohibiting or limiting in any material respect the ability of an Acquired Company to solicit customers, compete in any business with any Person or in any geographic area or offer or sell any product or service of any Acquired Company to any Person;
(vi) Contracts relating to (A) the incurrence, assumption or guarantee of indebtedness for borrowed money with a principal amount in excess of $50,000,000 (other than (x) intercompany loans, (y) indebtedness that will be repaid at or prior to the Closing and (z) advances to employees for expenses or transactions with customers on credit, in each case, in the Ordinary Course of Business) or (B) any letter of credit (whether drawn or undrawn) with a face amount in excess of $50,000,000;
(vii) Contracts imposing a Lien on any material assets or properties of any Acquired Company, other than Liens which will be released at or prior to the Closing and Permitted Liens;
(viii) Contracts containing a license to the Acquired Companies of Intellectual Property that is material to the business or operations of the Acquired Companies, taken as a whole, and Contracts containing a license from the Acquired Companies of Owned IP that is material to the business or operations of the Acquired Companies, taken as a whole, in each case, other than (A) licenses for open source software, (B) licenses for off-the-shelf or commercially available software pursuant to standard commercial terms or (C) non-exclusive licenses of Intellectual Property granted in the Ordinary Course of Business;
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(ix) Contracts under which Intellectual Property that is material to the Acquired Companies, taken as a whole, has been or is agreed to be developed by or with any third party;
(x) Contracts which involve (or are reasonably expected to involve) the expenditure by an Acquired Company, or would result in payments to an Acquired Company, of more than $50,000,000 in any fiscal year that are not terminable by such Acquired Company without penalty on notice of one hundred eighty (180) days or less;
(xi) individual employment agreements for any employee of an Acquired Company with an annual base salary in excess of $350,000;
(xii) Contracts with (A) Material Customers or (B) Material Vendors;
(xiii) Contracts (A) that grant any exclusive rights to any customer or “most favored nation” or similar rights, in each case, with an annual value in excess of $10,000,000 or (B) with suppliers that provide for a minimum volume purchase requirement of more than $10,000,000;
(xiv) currency exchange, interest rate exchange, commodity exchange or similar Contracts, in each case with a value in excess of $50,000,000;
(xv) Contracts that prohibit or restrict (A) the payment of dividends or distributions with respect to the Equity Securities of any Acquired Company, (B) the pledging of any Equity Securities of any Acquired Company, or (C) the issuance of guarantees by any Acquired Company;
(xvi) Contracts that relate to any settlement of a Legal Proceeding or threatened Legal Proceeding in excess of $5,000,000, other than Contracts for which there are no continuing material obligations or liabilities;
(xvii) (A) Contracts pursuant to which any Acquired Company leases any equipment or other tangible personal property, and (B) the Real Property Leases, in each case, involving aggregate payments reasonably expected to be in excess of $5,000,000 from or to any third party in any calendar year;
(xviii) Contracts providing for any supply chain finance, reverse factoring, receivables purchase, factoring, securitization or similar receivables- or payables-financing arrangement with a customer or a financial institution, in each case involving, or reasonably expected to involve, more than $50,000,000 in any fiscal year (the “SCF Contracts”); and
(xix) Contracts in respect of Related Party Arrangements.
(b) Each Material Contract is a legal, valid and binding obligation of the applicable Acquired Company and, to the Knowledge of the Company, of each counterparty thereto and is in full force and effect, subject to the Equitable Exceptions, except for such failures to be legal, valid and binding or in full force and effect that would not reasonably be expected to be material, individually or in the aggregate, to the Acquired Companies, taken as a whole. Since
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the Lookback Date, each Acquired Company party to a Material Contract has performed in all material respects the obligations required to be performed by it under each Material Contract. None of the Acquired Companies, nor to the Knowledge of the Company, any other party thereto, is in material breach of, or in material default under, any such Material Contract, and no event has occurred within the last 12 months that with notice or lapse of time or both would constitute such a material breach or material default thereunder by an Acquired Company, or, to the Knowledge of the Company, any other party thereto, except for such breaches and defaults that would not reasonably be expected to be material, individually or in the aggregate, to the Acquired Companies, taken as a whole. As of the Put Option Date, no Acquired Company has received or delivered written notice of any material violation or default under any Material Contract. The Company has made available to Buyer true, correct and complete in all material respects copies of each Material Contract, in each case, as amended or otherwise modified and in effect through the Put Option Date. Except as would not reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole, as of the Put Option Date, no party to any Material Contract has exercised any termination, cancellation or non-renewal of rights with respect thereto and no such party has given written notice of termination, cancellation or non-renewal with respect to any Material Contract. There are no Legal Proceedings pending or threatened in writing under any Material Contract, which would be, individually or in the aggregate, material to the Acquired Companies, taken as a whole.
6.14 Employee Benefit Plans.
(a) Schedule 6.14(a) of the Company Disclosure Schedules sets forth a true and correct list of each material Company Benefit Plan and separately identifies each Foreign Benefit Plan and the non-U.S. jurisdiction applicable to such Foreign Benefit Plan. With respect to each Company Benefit Plan, the Company has made available to Buyer correct and complete copies (to the extent applicable) of: (i) all plan documentation (or, with respect to any material unwritten Company Benefit Plan, a written summary of the material terms thereof), including all amendments thereto; (ii) the three most recent annual reports on Form 5500 (together with all accompanying schedules and financial statements) filed with the IRS; (iii) the most recent summary plan description and all summaries of material modifications thereto; (iv) each trust agreement and insurance or group annuity contract or policies and certificates of coverage; (v) annual testing (including nondiscrimination and coverage) results for the three most recently completed plan years; (vi) the most recent determination letter, advisory letter, or opinion letter issued by the IRS; and (vii) all material non-routine correspondence received from or provided to the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Body during the past three years.
(b) (i) All Company Benefit Plans that are intended to be tax qualified under Section 401(a) of the Code (each, a “Company Pension Plan”) are so qualified and have received a currently effective favorable determination letter; and (ii) except as would not reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole, no event has occurred and no circumstances exist that would reasonably be expected to adversely affect the qualification of such Company Pension Plan or result in a penalty under the Internal Revenue Service Closing Agreement Program if discovered during an IRS audit or investigation.
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(c) Except as would not reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole, all Company Benefit Plans and Foreign Benefit Plans have been established, maintained, operated, and administered in accordance with their terms and applicable Laws. There are no material claims, lawsuits, audits, inquiries, examinations, investigations, or arbitrations (other than routine claims for benefits) pending or threatened in writing against, with respect to, or relating to any of the Company Benefit Plans or Foreign Benefit Plans.
(d) Except as set forth on Schedule 6.14(d) of the Company Disclosure Schedules, no Acquired Company or ERISA Affiliate sponsors, contributes to, has an obligation to contribute to, or has any liability (including contingent liability) with respect to: (i) a plan subject to Title IV of ERISA, including any defined benefit plan (as defined in Section 3(35) of ERISA) or a plan subject to Section 302 of ERISA or Section 412 of the Code (any such plan, a “US Pension Plan”), (ii) a multiemployer plan (as defined in Section 3(37) or 4001(a)(3) of ERISA), or (iii) a multiple employer plan subject to Section 4063 or 4064 of ERISA. No Acquired Company sponsors, contributes to, has an obligation to contribute to, or has any liability (including contingent liability) with respect to a multiple employer welfare arrangement (as defined in Section 3(40)(A) of ERISA) or a voluntary employees’ beneficiary association under Section 501(c)(9) of the Code. Except as would not reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole, no Acquired Company or ERISA Affiliate has any liability as a result of a violation of COBRA.
(e) Schedule 6.14(e) of the Company Disclosure Schedules sets forth a true and complete list of each US Pension Plan. With respect to each US Pension Plan, (i) there has been no “reportable event” (as such term is defined in Section 4043(c) of ERISA); (ii) no liability under Title IV or Section 302 of ERISA or Section 412 of the Code has been incurred by an Acquired Company or any ERISA Affiliate that has not been satisfied in full and no condition exists that presents a risk to an Acquired Company or any ERISA Affiliate of incurring such liability; (iii) such US Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA do not exceed the current value of such plan’s assets, determined in accordance with the assumptions used for funding the plan pursuant to Section 412 and Section 430 of the Code for the applicable plan year; (iv) no such US Pension Plan has been required to file information pursuant to Section 4010 of ERISA for the current or most recently completed year; (v) each required installment or any other payment required under Section 412 of the Code or Section 303 of ERISA has been made no later than the applicable due date; (vi) no such US Pension Plan has applied for or received a waiver of the minimum funding standards or an extension of any amortization period within the meaning of Section 412 of the Code or Sections 302 or 303 of ERISA; (vii) there are no funding-based limitations (within the meaning of Section 436 of the Code) currently in effect; and (viii) the assets of each such US Pension Plan are sufficient to satisfy all obligations of such US Pension Plan if such US Pension Plan were to terminate as of the Put Option Date.
(f) With respect to each Company Benefit Plan for which a separate fund of assets is or is required to be maintained, full and timely payment and contribution has been made of all amounts due and required under the terms of each such Company Benefit Plan or applicable Law, except as would not reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole. All premiums, fees and administrative expenses required to be paid under or in connection with the Company Benefit Plans for the period on or
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before the Closing Date have been fully and timely paid, except as would not reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole. No fiduciary (within the meaning of Section 3(21) of ERISA) of any Company Benefit Plan subject to Part 4 of Subtitle B of Title I of ERISA has committed a breach of fiduciary duty with respect to that Company Benefit Plan that could subject an Acquired Company or an employee of an Acquired Company to any liability (including liability on account of an indemnification obligation), except as would not reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole. No Acquired Company has incurred any excise Taxes under Chapter 43 of the Code with respect to any Company Benefit Plan and nothing has occurred with respect to any Company Benefit Plan that could reasonably be expected to subject any Acquired Company to any such Taxes, except as would not reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole.
(g) No Acquired Company provides or has an obligation to provide, and none of the Company Benefit Plans provides for post-employment medical, health, welfare or life insurance benefits for any current or former employee or any beneficiary of a current or former employee, except as required by COBRA. No Company Benefit Plan or Acquired Company provides, or has any obligation to provide welfare benefits to any Person who is not a current or former employee of an Acquired Company, or a beneficiary thereof.
(h) Except as would not reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole, each Acquired Company has complied with the applicable provisions of the Patient Protection and Affordable Care Act of 2010, as amended, and the Health Care and Education Reconciliation Act of 2010, as amended, to the extent applicable, including the employer shared responsibility provisions relating to the offer of “affordable” health coverage that provides “minimum essential coverage” to “full-time” employees (as those terms are defined in Section 4980H of the Code and related regulations) and the applicable employer information reporting requirements under Section 6055 of the Code and Section 6056 of the Code.
(i) Each Company Benefit Plan that is a nonqualified deferred compensation plan within the meaning of Section 409A of the Code has been administered, operated and maintained in accordance with the requirements of Section 409A of the Code and no Acquired Company has or has been required to withhold or pay any Tax as a result of a failure to comply with Section 409A of the Code, except as would not reasonably be expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole. No Acquired Company has any obligation to make a “gross-up” or similar payment in respect of any Taxes that may become payable under Section 409A of the Code.
(j) All Company Benefit Plans subject to the Laws of any jurisdiction outside of the United States or which are maintained primarily for any current or former employee or other service provider residing or working outside the United States (each, a “Foreign Benefit Plan”) (i) if they are intended to qualify for special tax treatment, meet, in all material respects, all requirements for such treatment and, to the Knowledge of the Company, there are no existing circumstances or events that have occurred that would reasonably be expected to affect adversely the special tax treatment with respect to such Foreign Benefit Plan, (ii) if they are intended to be
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funded or book-reserved, are fully funded or book reserved, as appropriate, based upon reasonable actuarial assumptions and the fair market value of the assets of each Foreign Benefit Plan, the liability of each insurer for any Foreign Benefit Plan funded through insurance, or the book reserve established for any such Foreign Benefit Plan, together with any accrued contributions, is sufficient to procure or provide for the accrued benefit obligations, as of the Put Option Date, with respect to all current and former participants in each such Foreign Benefit Plan according to the actuarial assumptions and valuations most recently used to determine employer contributions to such Foreign Benefit Plan, and (iii) if intended or required to be qualified, approved or registered with a Governmental Body, are and have been so qualified, approved or registered and nothing has occurred that would reasonably be expected to result in the loss of such qualification, approval or registration, as applicable, except in each case, as would not result in a material liability to the Acquired Companies, taken as a whole. Except as set forth on Schedule 6.14(j) of the Company Disclosure Schedules, no Acquired Company outside the United States has been a party to, or a sponsoring or participating employer of, any defined benefit pension scheme, any final salary scheme or any death, disability or retirement benefit calculated by reference to age, salary or length of service or any other item other than any such program or arrangement that is required by applicable Law.
(k) Neither the execution and delivery of this Agreement nor the consummation of the Transactions will, or would reasonably be expected to, either alone or in combination with any other event(s), (i) result in any payment becoming due, any cancellation of indebtedness, or any increase in compensation or benefits, in each case, to any current or former employee, officer, director or other service provider of any Acquired Company (including severance pay or similar compensation), including under any Company Benefit Plan or Foreign Benefit Plan, or (ii) result in the acceleration of the time of payment, funding or vesting of any benefits to any current or former employee, officer, director, or other service provider of the Acquired Companies, including under any Company Benefit Plan or Foreign Benefit Plan. No amount paid or payable (whether in cash, in property, or in the form of benefits) in connection with the Transactions (either alone or in combination with another event) will be an “excess parachute payment” within the meaning of Section 280G of the Code. No Acquired Company has any obligation to make a “gross-up” or similar payment in respect of any Taxes that may become payable under Section 4999 of the Code.
(l) Schedule 6.14(l) of the Company Disclosure Schedules sets forth the Company’s good faith estimate, as of the Put Option Date, of the aggregate amount of severance payments and benefits paid or payable by the Acquired Companies in respect of terminations of employment occurring during the period from the Locked Box Date through August 31, 2026. No Company Benefit Plan provides, and no Acquired Company is obligated to pay, any material severance payments or benefits solely upon a voluntary resignation of employment of any employee, officer, director or other service provider of any Acquired Company, except as otherwise required by applicable Law.
(m) Schedule 6.14(m) of the Company Disclosure Schedules sets forth the Company’s good faith estimate, as of the Put Option Date, of the aggregate amount of all payments, benefits or other compensatory amounts payable to current or former employees, officers, directors or other service providers of the Acquired Companies under (A) the MIP, (B) the Element MIP, (C) the Seller Option Awards and (D) any transaction, transaction-based or retention bonuses entered into or provided by the Sellers or their respective Affiliates; provided
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that where such amount is based on performance with respect to a time period that has not been fully completed as of the Put Option Date, the amount set forth therein shall be based on a level of performance reflected by the Company’s reasonable best estimate of actual performance through the Closing Date. For purposes hereof, “Seller Option Award” shall mean each outstanding option to purchase shares of a Seller’s stock or equity held by any current or former officer, director, employee or other service provider of any Acquired Company.
6.15 Labor.
(a) The execution of this Agreement and the consummation of the Transactions will not require notification or consultation with any works council, economic and social committee, labor union, association or other employee representative body that represents any employees of the Acquired Companies, other than those contemplated by the Put Option Agreement, except for such notification or consultation the failure of which to obtain would not be, individually or in the aggregate, material to the Acquired Companies, taken as a whole.
(b) No union or labor organization has made a pending demand for recognition since the Lookback Date and, to the Knowledge of the Company, there is no organizing activity involving any Acquired Company. Since the Lookback Date, there has not been, nor is there pending or threatened in writing, any material labor dispute between an Acquired Company and any works council, economic and social committee, labor union, association or other employee representative body or any material strike, work stoppage, work slowdown or lockout involving any employee of any Acquired Company. There are no material unfair labor practice charges or material grievances or complaints pending or threatened in writing against any Acquired Company by or on behalf of any employee or group of employees of any Acquired Company.
(c) The Acquired Companies are, and since the Lookback Date have been, in compliance in all material respects with all applicable Laws governing the employment of labor and the terms and conditions of employment including those relating to wages, hours, collective bargaining, holiday pay, working time, minimum wage, overtime and classification as exempt/non-exempt, paid and unpaid leaves, unemployment compensation, workers compensation, occupational health and safety, equal employment opportunity, discrimination (including race, sex, age and disability discrimination), pay equity, harassment, retaliation, whistleblower laws, plant closings, layoffs and reductions in force, background checks, immigration control, and classification of employees, workers and contractors. There are no, and since the Lookback Date there have been no, investigations pending or threatened in writing by any Governmental Body relating to the terms and conditions of employment of the Acquired Companies including all Laws relating to discrimination, fair labor standards, harassment, occupational health and safety, wrongful discharge, wages, hours, the Worker Adjustment and Retraining Notification Act of 1988 (the “WARN Act”) (or any similar state, local, or non-U.S. equivalent Laws), collective bargaining, civil rights, immigration and workers’ compensation.
(d) Since the Lookback Date, none of the Acquired Companies has (i) effectuated a “plant closing” (as defined in the WARN Act) affecting any site of employment or one or more facilities or operating units within any site of employment, (ii) effectuated a “mass layoff” (as defined in the WARN Act), (iii) engaged in layoffs, furloughs, or employment terminations sufficient in number to trigger any collective consultation with employees or their
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representatives or the application of any similar state, local, or non-U.S. applicable Law, or (iv) issued any notification of a plant closing or mass layoff required by the WARN Act or any similar state, local, or non-U.S. equivalent applicable Law. To the Knowledge of the Company, none of the Acquired Companies has any current plans to undertake any action that would trigger the WARN Act or any similar state, local, or non-U.S. equivalent applicable Law.
(e) The current employees of the Acquired Companies are authorized and have appropriate documentation to work in the country in which they are located. Since the Lookback Date, (i) no Acquired Company has received written notice of any pending or threatened investigation by any branch of the department of U.S. Immigration and Customs Enforcement (“ICE”), or other federal (or other local applicable) agency charged with administration and enforcement of federal (or other local applicable) immigration Laws concerning the Acquired Companies, and (ii) no Acquired Company has received any “no match” notices from ICE, the Social Security Administration, or the IRS.
(f) Since the Lookback Date, (i) no allegations of sexual harassment or sexual misconduct have been made in writing against any current or former officer or director or senior level management employees of any Acquired Company, and (ii) none of the Acquired Companies has entered into any settlement agreements related to allegations of sexual harassment or sexual misconduct by any current officer or director or senior level management employee of such Acquired Company. Since the Lookback Date, the Acquired Companies have reasonably investigated all written allegations of employment discrimination and sexual harassment, or other harassment, discrimination, or retaliation allegations made against any current officer or director or senior level management employees of the Acquired Companies.
(g) Except as would not be reasonably expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole, there are no current pending or threatened in writing, and have not been since the Lookback Date, claims, charges, litigation, complaints, investigations or arbitrations relating to the employment or engagement, or termination thereof, of any current or former employee, worker, officer, director, or individual independent contractor of the Acquired Companies or otherwise alleging violation of any Law related to labor or employment or relating to labor or employment matters.
(h) Since the Lookback Date, no Acquired Company has been a party to a relevant transfer for the purposes of the Transfer of Undertakings (Protection of Employment) Regulations 2006 or European Union Acquired Rights Directive (Council Directive 2001/23/EC) or local equivalent Laws affecting any employee or any other Person engaged in the business of the Acquired Companies.
6.16 Litigation.There are no, and since the Lookback Date there have been no, Legal Proceedings pending or threatened in writing against any Acquired Company, its assets or properties, or, to the Knowledge of the Company, its current or former directors, managers, officers or employees (in their capacities as such), which would be, individually or in the aggregate, material to the Acquired Companies, taken as a whole. There are no, and since the Lookback Date there have been no, material written claims or demands by any Governmental Body pending or threatened in writing against or involving any Acquired Company. None of the Acquired Companies is subject to any material Order. No Acquired Company is subject to any material judgment, settlement or similar arrangement that imposes any continuing material obligation or restriction on any Acquired Company.
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6.17 Compliance with Laws; Permits.
(a) The Acquired Companies are, and since the Lookback Date, have been, in compliance in all material respects with all Laws applicable to their respective business or operations. All products being distributed, sold, manufactured or developed by the Acquired Companies that are subject to the jurisdiction of the FDA, FTC, or any comparable state or foreign Governmental Body have been tested, packed, transported, distributed, marketed, advertised and promoted in compliance with all applicable requirements under applicable Laws in all material respects, including, where applicable, the Federal Food, Drug, and Cosmetic Act, and other Laws, including food contact substance requirements (as applicable, 21 C.F.R. parts 174-78), the Federal Trade Commission Act, with respect to the advertising and promotion, product descriptions and claims for the products they sell (including, among other things, requirements for “recyclable” and “recycled content” claims set forth in 16 C.F.R. §§ 260.12 and 260.13) and Regulation (EC) No. 1935/2004 on materials and articles intended to come into contact with food, Regulation (EC) No. 2023/2006 on good manufacturing practice for materials and articles intended to come into contact with food, Commission Regulation (EU) No. 10/2011 on plastic materials and articles intended to come into contact with food, Directive 94/62/EC on packaging and packaging waste (“PPWD”) and Regulation (EU) 2025/40 on packaging and packaging waste (“PPWR”) in each case as applicable in the United Kingdom as assimilated Law and as amended from time to time, together with the Materials and Articles in Contact with Food (England) Regulations 2012 and corresponding legislation in Scotland, Wales and Northern Ireland, the Packaging (Essential Requirements) Regulations 2015 and the Producer Responsibility Obligations (Packaging and Packaging Waste) Regulations 2024, and, in respect of Northern Ireland, the PPWR to the extent applicable pursuant to the Windsor Framework.
(b) Since the Lookback Date, (i) no Acquired Company has received any written notice of or been charged with the material violation of any Laws which would reasonably be expected to result in liability to such Acquired Company, except for any such violation that would not reasonably be expected to be material to the Acquired Companies, taken as a whole, and (ii) no Acquired Company’s products have been the subject of any material warning letter, notice of violation, notice of warning, seizure, injunction, regulatory enforcement action or criminal action issued, initiated or threatened in writing by the FDA, FTC, or any comparable state or foreign Governmental Body under any applicable Laws.
(c) Each Acquired Company has, and since the Lookback Date has had, all material Permits required for the operation of the business or operations of the Acquired Companies as presently conducted. All such Permits are valid and in full force and effect, including the filing of a timely and complete renewal application for any Permit for which the expiration date has passed but renewal has not been issued, except as would not reasonably be expected to be material, individually or in the aggregate, to the Acquired Companies taken as a whole. None of the Acquired Companies is in default or violation in any material respect of any term, condition or provision of any Permit to which it is a party, except as would not reasonably be expected to be material, individually or in the aggregate, to the Acquired Companies, taken as a whole. To the Knowledge of the Company, no event has occurred which, with or without the giving of notice or lapse of time, would reasonably be expected to result in the termination, suspension, material modification, or revocation of any Permit.
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(d) Since the Lookback Date, no Acquired Company has received any material inspectional findings, deficiency notices or warning communications from any Governmental Body, including any FDA Form 483 notice of inspectional observations, notice of adverse findings, untitled letters or warning letters from the FDA, or any analogous inspectional findings, deficiency notices, or warning communications from any comparable foreign Governmental Body, or been subject to any material penalty, fine, sanction, assessment, audit, request for corrective or remedial action or other material compliance or enforcement-related action or material communication, in each case in writing, from any Governmental Body, including the FDA.
(e) Since the Lookback Date, (i) no Acquired Company has, in connection with any Acquired Company product, either voluntarily or at the request of a Governmental Body, initiated, conducted or issued, or caused to be initiated, conducted or issued, any material recall, market withdrawal, or similar action and (ii) to the Knowledge of the Company, no customer has either voluntarily or at the request of a Governmental Body initiated, conducted or issued, or caused to be initiated, conducted or issued, any material recall, or market withdrawal where such action is caused by an Acquired Company product.
(f) No Acquired Company, nor, to the Knowledge of the Company, any of its managers, officers or employees, has been convicted of any crime or engaged in any conduct that would reasonably be expected to result in debarment or exclusion or any comparable restriction under any applicable Laws, including under 21 U.S.C. Section 335a(a), 21 U.S.C. Section 335a(b), or any applicable equivalent foreign Laws. No Legal Proceedings that have resulted, or would reasonably be expected to result, in such a debarment or exclusion, or comparable restriction are pending or threatened in writing against any Acquired Company or, to the Knowledge of the Company, the managers, officers or employees of any Acquired Company.
6.18 International Trade and Improper Payments.
(a) Except as would not reasonably be expected to be material to the Acquired Companies, taken as a whole, each Acquired Company is and has for the last five years been in compliance with all applicable International Trade Laws and Regulations and there are no Legal Proceedings, prosecutions, enforcement actions or other inquiries pending or, to the Knowledge of the Company, threatened against any Acquired Company under any applicable International Trade Laws and Regulations.
(b) No Acquired Company or any of its directors, officers, employees or, to the Knowledge of the Company, any other Person associated with or acting on behalf of any Acquired Company (i) is a Sanctioned Party or (ii) in the last five years, has directly or indirectly engaged in any transactions or dealings with or involving any Sanctioned Parties or in any Sanctioned Jurisdictions in violation of applicable Sanctions.
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(c) Except as would not reasonably be expected to be material to the Acquired Companies, taken as a whole, no Acquired Company has in the last five years been and, to the Knowledge of the Company, none of the Acquired Companies’ officers, directors, or employees has in the last five years been, the subject or target of any material Legal Proceeding, investigation, prosecution, other enforcement action, or government inquiry related to noncompliance with or potential liability under applicable International Trade Laws and Regulations.
(d) No Acquired Company has submitted in the last five years a voluntary or directed self-disclosure to any U.S. or other relevant Governmental Body regarding actual or potential noncompliance with applicable International Trade Laws and Regulations.
(e) During the last five years, the Acquired Companies have implemented and maintain policies and procedures reasonably designed to ensure compliance in all material respects with International Trade Laws and Regulations.
(f) During the last five years, (i) each Acquired Company has accurately and appropriately classified its products in compliance in all material respects with all applicable provisions of U.S. export control laws and regulations, including the Export Administration Regulations and the International Traffic in Arms Regulations, and the export control laws and regulations of any other applicable jurisdiction (collectively, “Export Control Laws”) and (ii) all duties, tariffs, penalties, interest and other charges and obligations related to the import and export of such products have been fully paid in a timely manner in compliance with all applicable Laws, except as would not otherwise reasonably be expected to, individually or in the aggregate, be material to the Acquired Companies, taken as a whole.
(g) During the five years preceding the Put Option Date, none of the Acquired Companies nor, to the Knowledge of the Company, any director, officer, employee or agent acting for or on behalf of such Acquired Company, has, directly or indirectly, in connection with the business of such Acquired Company, taken any action in violation of the U.S. Foreign Corrupt Practices Act of 1977 (“FCPA”) or any other similar anti-bribery Law (collectively, “Anti-Corruption Laws”) applicable to the Acquired Companies. The Acquired Companies have not during the last five years, directly or indirectly, (i) made any voluntary or directed disclosure to any Governmental Body or similar agency with respect to any alleged act or omission arising under or relating to any non-compliance with any Anti-Corruption Laws; (ii) been the subject of any inquiry, investigation, or enforcement proceedings for violations of Anti-Corruption Laws; or (iii) violated or received in writing any notice, request, penalty, or citation for any actual or potential non-compliance with Anti-Corruption Laws.
6.19 Environmental Matters.Except as set forth on Schedule 6.19 of the Company Disclosure Schedules or except as would not be material to the Acquired Companies, taken as a whole:
(a) The Acquired Companies are, and since the Lookback Date have been, in compliance with all applicable Environmental Laws, which compliance includes possessing, or timely applying for, all Permits required by applicable Environmental Laws to be held by any Acquired Company to operate its business.
(b) No Acquired Company has received any written notice asserting or alleging against the Acquired Companies any violation of applicable Environmental Law since the Lookback Date, or which otherwise remains unresolved.
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(c) There is no Legal Proceeding under or pursuant to any applicable Environmental Law that is pending or threatened in writing against any of the Acquired Companies.
(d) There has been no Release by any of the Acquired Companies or, to the Knowledge of the Company, any other Person at, on, to, from, or under the Real Property or at any other location, in any case, for which any Acquired Company is currently incurring, or could reasonably be expected to incur, any investigation, remediation, response, corrective action or monitoring obligation or other liability pursuant to applicable Environmental Law.
(e) No Acquired Company has transported or arranged for the treatment, storage, handling, disposal or transportation of any Hazardous Materials to any location off-site of the real property currently or formerly owned, leased, or operated for which the foregoing could reasonably be expected to result in liability to any Acquired Company under any Environmental Laws.
(f) No Acquired Company is subject to any Order imposed or issued by any Governmental Body, or any settlement agreement, under which there is any outstanding or unresolved liability under applicable Environmental Law on the part of the Acquired Companies.
(g) No Acquired Company has assumed, provided an indemnity with respect to, or otherwise become subject to any liability of any other Person that could result in any Acquired Company incurring liability under applicable Environmental Law.
(h) The Company has made available to Buyer true, correct and complete copies of all material environmental site assessment reports, environmental compliance audits, regulatory inspections, and notices of violation, prepared since the Lookback Date by or on behalf of the Company or that identify any outstanding material violation of or liability under Environmental Law that are in the possession or reasonable control of any Acquired Company, in each case, that relate to the Real Property or compliance with or liability under applicable Environmental Law with respect to the Acquired Companies.
6.20 Insurance.Schedule 6.20 of the Company Disclosure Schedules sets forth a true, complete and accurate list of each material insurance policy under which an Acquired Company is an insured or otherwise the principal beneficiary of coverage as of the Put Option Date, other than any insurance policies relating to Company Benefit Plans (collectively, the “Insurance Policies”). All Insurance Policies are valid and in full force and effect as of the Put Option Date. With respect to each such Insurance Policy, (a) none of the Acquired Companies is in material breach or default (including any such breach or default with respect to the payment of premiums or the giving of notice of claims) and, to the Knowledge of the Company, no event has occurred which, with notice or the lapse of time or both, would constitute such a material breach or default, or permit termination or modification, under any such Insurance Policy and (b) during the 12-month period prior to the Put Option Date, none of the Acquired Companies has received a written notice of revocation, cancellation or termination other than in connection with ordinary renewals or written notice that the issuer of an Insurance Policy is not willing or able to perform its obligations. The Insurance Policies are of the type and amount necessary to comply with all material requirements under applicable Laws, Permits and Material Contracts. The Acquired
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Companies are in compliance with the terms and conditions of the Insurance Policies in all material respects. As of the Put Option Date, there are no pending, and since the Lookback Date there have not been, any material claims related to the Acquired Companies under any Insurance Policy with respect to which an insurer has denied or disputed its rights in writing with respect to coverage. No Insurance Policies are maintained by any of the Sellers or any of their Affiliates (other than the Acquired Companies).
6.21 Related Party Agreements. Except for (a) the Organizational Documents of the Acquired Companies, (b) advances to employees in the Ordinary Course of Business, (c) any Company Benefit Plans, (d) the Company’s directors’ and officers’ liability insurance policy, (e) any intercompany liabilities or obligations solely between or among any of the Acquired Companies, (f) the Voting Agreements or (g) any indemnification agreement with any of the Company’s directors or officers, no director or officer of any Acquired Company and no owner of more than five percent (5%) of the Shares or any of such owner’s Affiliates (excluding the Acquired Companies) (i) is a party to any Contract or other commitment to which an Acquired Company is a party and by which any of their respective assets or properties is bound, or (ii) to the Knowledge of the Company, has a material interest in any such agreement, arrangement, contract or commitment to which any of the Acquired Companies is a party and by which any of their respective assets or properties is bound (any of the foregoing clauses (i) or (ii), a “Related Party Arrangement”).
6.22 Brokers’ Fee. Except as set forth on Schedule 6.22 of the Company Disclosure Schedules, none of the Acquired Companies has entered into any agreement with any Person that would obligate any Acquired Company to pay any commission, brokerage, finders’, financial advisory, investment banker or similar fee in connection with the consummation of the Transactions.
6.23 Leakage; Debt; Intercompany Accounts.
(a) Since the Locked Box Date, except as set forth on Schedule 6.23(a) of the Company Disclosure Schedules, (i) no Leakage has occurred, been paid, incurred or accrued, other than Permitted Leakage and (ii) no Acquired Company (nor the Blocker) has entered into any agreement, arrangement or commitment (whether or not conditional) to give effect to, or that has resulted in or will result in, any Leakage, other than Permitted Leakage.
(b) Except as set forth on Schedule 6.23(b) of the Company Disclosure Schedules, none of the Acquired Companies has any material Debt other than the Specified Debt.
(c) Schedule 6.23(c) of the Company Disclosure Schedules sets forth a true, correct and complete list of all intercompany balances and accounts (including loans, advances, receivables, payables and cash pooling balances, together with accrued interest thereon) between any Seller, the Sponsor or any of their respective Affiliates (other than the Blocker and the Acquired Companies), on the one hand, and the Blocker or any Acquired Company, on the other hand, including the amount outstanding as of the Put Option Date and the Contract (if any) governing each such balance (the “Intercompany Accounts”).
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6.24 Privacy.
(a) Since the Lookback Date, except as would not, individually or in the aggregate, reasonably be expected to be material to the Acquired Companies, taken as a whole, (i) the Acquired Companies, and to the Knowledge of the Company, any Data Processor acting for or on behalf of the Acquired Companies, comply and have complied with all Privacy Requirements, and each Acquired Company to the extent required under applicable Privacy Requirements: (A) maintains a record of Processing activities, (B) provides required information to data subjects whose Personal Information is Processed and Processes Personal Information pursuant to a valid legal basis, (C) retains Personal Information only for as long as is necessary or allowable under Privacy Requirements, (D) has in place written agreements with Data Processors that Process Personal Information on the Acquired Companies’ behalf that include all provisions as required under Privacy Requirements; and (E) ensures all cross-border transfers of Personal Information are carried out in compliance with Privacy Requirements; (ii) the Acquired Companies have established an Information Security Program that is appropriately implemented and maintained; (iii) the Acquired Companies have assessed and tested their Information Security Programs on a periodic basis and remediated, or are taking or intend to take steps to remediate, all critical and high risks and vulnerabilities identified in their IT Systems; (iv) any Security Incident experienced by the Acquired Companies or, to the Knowledge of the Company, any Data Processors acting for or on behalf of the Acquired Companies, has been remediated in all material respects, and neither the Acquired Companies nor, to the Knowledge of the Company, their Data Processors, are currently experiencing any Security Incident, and all Security Incident notifications to any Persons or Governmental Bodies required under Privacy Requirements have been made, and (v) the Acquired Companies have not received a written notice, letter, or complaint from a Person or Governmental Body alleging noncompliance with any Privacy Requirements.
(b) Since the Lookback Date, except as would not, individually or in the aggregate, reasonably be expected to be material to the Acquired Companies, taken as a whole, to the extent the Acquired Companies use any machine learning, deep learning, or other artificial intelligence technologies in connection with their business, the Acquired Companies (i) comply and have complied with all applicable Laws governing the use of such technologies and (ii) possess all material rights, authorizations, and consents required under applicable Privacy Laws for such use.
(c) The Acquired Companies maintain, and have since the Lookback Date maintained, cyber liability insurance policies.
(d) Except as would not, individually or in the aggregate, reasonably be expected to be material to the Acquired Companies, taken as a whole, none of the Acquired Companies is subject to any legal obligation that, following the Closing, would prohibit the Acquired Companies from Processing any Personal Information in materially the same manner in which the Acquired Companies Processed such Personal Information immediately prior to the Closing.
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6.25 Vendors and Customers.
(a) Schedule 6.25(a) of the Company Disclosure Schedules contains a list of the (i) ten (10) largest vendors (the “Material Vendors”) of the Acquired Companies (measured by aggregate spend) and (ii) ten (10) largest customers (the “Material Customers”) of the Acquired Companies (measured by aggregate revenue), in each case for calendar years 2024 and 2025.
(b) Since the Lookback Date, no Material Vendor or Material Customer has terminated, cancelled or failed to renew or effected any material reduction in the amount of sales or purchases or material increase in the prices charged or paid, as the case may be, or threatened in writing to terminate, cancel or fail to renew or otherwise materially adversely alter any Contract with any Acquired Company. None of the Acquired Companies has received, during the twelve (12) month period prior to the Put Option Date, any written notice that any of the Material Vendors or Material Customers intends to terminate, cancel, fail to renew or effectuate any material reduction in the rate or amount of sales or purchases or material increase in the prices charged or paid, as the case may be, in relation to any Contract with any Acquired Company.
6.26 Specified Projects.
(a) Schedule 6.26(a) of the Company Disclosure Schedules sets forth, as of the Balance Sheet Date, a true, correct and complete list of each material Specified Project, including: (i) a description thereof; (ii) the current status thereof; (iii) the Specified Project Costs from the Lookback Date to the Balance Sheet Date and (iv) the Specified Project Budget after the Balance Sheet Date to complete the respective Specified Projects.
(b) With respect to each such Specified Project set forth on Schedule 6.26(a) of the Company Disclosure Schedules, except as would not reasonably be expected to be material to the Acquired Companies, taken as whole, (i) the Acquired Companies have complied in all respects with applicable Laws relating to any required information, consultation, advice and negotiation processes with any works council, economic and social committee, labor union, association or other employee representative body, (ii) all notifications to and approvals of Governmental Bodies required in connection therewith have been timely made or obtained and (iii) all severance, social plan and other payments and benefits due and payable to affected employees have been timely paid or provided in all respects and (iv) the information provided to date to any works council, economic and social committee, labor union or other employee representative body in connection with any such Specified Project has not been rendered inaccurate or misleading, in any material respect, by reason of the Transactions, in each case as construed in accordance with applicable Law, including any binding or settled judicial interpretation thereof by a court of competent jurisdiction.
6.27 Product Liability; Product Safety; Recalls.Except as would not be material to the Acquired Companies, taken as a whole, since the Lookback Date: (a) no product liability or warranty claim or demand has been asserted against or received by any Acquired Company with respect to any product designed, manufactured, processed, assembled, sold, supplied or distributed by any Acquired Company; (b) no Acquired Company has initiated, conducted or been required to initiate or conduct any recall, withdrawal or similar product safety action with respect to any such product, and no Acquired Company has received any material product safety notice or been subject to any material investigation relating to the safety of any such product; and (c) no material allegation has been made to any Acquired Company that any such product is defective or nonconforming.
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6.28 Non-Executive Directors. The arrangements with the Non-Executive Directors set forth on Schedule 1.1(c) are terminable at-will without notice or penalty (including any acceleration payment, severance payment or otherwise, but excluding any earned amounts or incurred but unreimbursed expenses). There are no additional amounts or benefits payable or due to the Non-Executive Directors other than the amounts and benefits set forth on Schedule 1.1(c).
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF BUYER
Buyer hereby represents and warrants to the Sellers and the Company that:
7.1 Organization and Good Standing.Buyer is a limited liability company duly organized, validly existing and in good standing under the Laws of the State of Delaware and has all requisite corporate power and authority to own, lease and operate its properties, rights and assets and to carry on its business in all material respects as now conducted.
7.2 Authorization of Agreement.Buyer has all requisite power and authority to execute and deliver this Agreement and each other Transaction Document to be executed by Buyer in connection with the consummation of the Transactions (collectively, the “Buyer Documents”), to perform its obligations hereunder and thereunder, and to consummate the Transactions. The execution, delivery and performance by Buyer of this Agreement and the Buyer Documents, and the consummation of the Transactions have been (or, with respect to any Buyer Document to be entered into at the Closing, will have been as of the Closing) duly authorized by all necessary action on behalf of Buyer, and no other action on the part of Buyer is necessary to authorize the execution, delivery and performance of this Agreement and each of the Buyer Documents, to perform its obligations hereunder and thereunder, and the consummation of the Transactions. This Agreement has been, and each of the Buyer Documents will be at or prior to the Closing, duly and validly executed and delivered by Buyer and assuming the due authorization, execution and delivery by the other parties hereto and thereto, this Agreement constitutes, and each Buyer Document when so executed and delivered will constitute, the legal, valid and binding obligation of Buyer, enforceable against Buyer in accordance with its terms, except to the extent that enforceability thereof may be limited by the Equitable Exceptions.
7.3 Conflicts; Consents of Third Parties.
(a) None of the execution, delivery and performance by Buyer of this Agreement or the Buyer Documents, the consummation by Buyer of the Transactions, or compliance by Buyer with any of the provisions hereof or thereof will (i) conflict with or violate any provision of the Organizational Documents of Buyer; (ii) conflict with, result in a breach or violation of or any loss of any benefit under or termination of, constitute a default under, result in the acceleration of, create in any Person the right to accelerate, terminate, modify or cancel, require any notice, authorization, approval or consent under, or result in the imposition of any Lien upon any of the rights, properties or assets of Buyer under any Contract or Permit to which Buyer is a party or (iii) conflict with or violate any Law or Order applicable to Buyer or by which any of the properties or assets of Buyer are bound, other than, in the case of clauses (ii) and (iii), such violation, conflict, breach, default, acceleration, termination, modification, cancellation, failure to give notice or obtain consent or Lien that would prohibit, restrain or otherwise materially delay Buyer’s performance of this Agreement or ability to consummate the Transactions.
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(b) Assuming the accuracy of the representations and warranties regarding the Acquired Companies in Section 6.3, no consent, waiver, approval, Order, Permit or authorization of, or declaration or filing with, or notification to, any Person or Governmental Body is required on the part of Buyer in connection with the execution, delivery and performance by Buyer of this Agreement or the Buyer Documents, the compliance by Buyer with any of the provisions hereof or thereof, or the consummation by Buyer of the Transactions, except for (i) filings required under and in compliance with the applicable requirements of any Antitrust Law or Foreign Investment Law, (ii) any other consent, waiver, approval, Order, Permit or authorization the failure of which to obtain would not reasonably be expected to prohibit, restrain or otherwise materially delay the ability of Buyer to consummate the Transactions, (iii) the execution of the Notarial Transfer Deeds and (iv) those that may be required solely by reason of the Company’s or the Sellers’ (as opposed to any other third party’s) participation in the Transactions.
7.4 Litigation.There are no Legal Proceedings pending or, to the Knowledge of Buyer, threatened against Buyer that would reasonably be expected to challenge, prohibit, restrain or otherwise materially delay Buyer’s ability to enter into this Agreement or consummate the Transactions. Buyer is not subject to any Order except to the extent the Order would not reasonably be expected to prohibit or restrain the ability of Buyer to enter into this Agreement or consummate the Transactions.
7.5 Brokers’ Fee.No Person has acted, directly or indirectly, as a broker, finder or financial advisor for Buyer in connection with the Transactions and no such Person is entitled to any fee or commission or like payment from Buyer in respect thereof.
7.6 Sufficient Funds.
(a) Buyer has delivered to the Company true, correct, and complete copies of (i) an executed Equity Commitment Letter to provide, subject to the terms and conditions therein, the Equity Financing, and (ii) an executed commitment letter from the Debt Financing Sources, dated as of the Put Option Date (together with the term sheets and any other annexes, exhibits, schedules and other attachments thereto, the “Debt Commitment Letter” and, together with the Equity Commitment Letter, the “Commitment Letters”, and the commitments under the Debt Commitment Letter, the “Debt Financing Commitments” and, together with the Equity Financing Commitment, the “Financing Commitments”), pursuant to which, and subject to the terms and conditions of which, the Debt Financing Sources have committed to lend the amounts set forth therein to Buyer for the purpose of funding the Transactions (the “Debt Financing” and, together with the Equity Financing, collectively referred to as the “Financing”), and each related fee letter (collectively, the “Fee Letters”), copies of which may be redacted in a customary manner to remove only the fees, pricing terms, pricing flex, pricing caps and other economic and commercially sensitive terms set forth therein so long as such redacted information would not reasonably be expected to adversely affect the conditionality, availability or aggregate principal amount of the Debt Financing.
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(b) As of the Put Option Date, the Commitment Letters are in full force and effect and have not been withdrawn, rescinded, replaced or terminated, or otherwise amended, restated, amended and restated, waived, supplemented or otherwise modified in any respect, and no such withdrawal, rescission, replacement, termination, amendment, restatement, amendment and restatement, waiver, supplement or other modification is contemplated (except for amendments to the Debt Commitment Letter to add additional Debt Financing Sources), and no financing source has notified Buyer of its intention to withdraw, rescind or terminate the Financing Commitments. As of the Put Option Date, the Commitment Letters are a legal, valid and binding obligation of Fund IX (and, as to its obligations thereunder, Fund IX VL Holdings) (with respect to the Equity Commitment Letter) and Buyer (with respect to the Debt Commitment Letter) and, to the Knowledge of Buyer, the other parties thereto, enforceable in accordance with their terms, except as the same may be limited by the Equitable Exceptions. As of the Put Option Date, the Commitment Letters contain all of the conditions precedent to the obligations of the parties thereunder to make the full amount of the Financing available to Buyer on the terms set forth therein, and no Financing Commitment is subject to any other condition precedent (including pursuant to any “market flex” terms in any Fee Letter). As of the Put Option Date, there are no written agreements, side letters or written arrangements (other than the Commitment Letters and the Fee Letters) relating to the Financing that would impose additional conditions precedent or other contingencies related to the funding of the full amount of the Financing other than as expressly set forth in this Agreement or the Financing Commitments. As of the Put Option Date, Buyer is not in breach of any of the terms or conditions set forth in the Debt Commitment Letter and Fund IX VL Holdings is not in breach of any of the terms or conditions set forth in the Equity Commitment Letter. As of the Put Option Date, no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of Buyer or Fund IX VL Holdings, as applicable, under any term or condition of the Commitment Letters, and, assuming the satisfaction of the conditions set forth in Section 9.1 and Section 9.2 and the accuracy of the representations and warranties set forth in Article IV through Article VI herein, Buyer does not have any reason to believe that it or Fund IX VL Holdings, as applicable, will be unable to satisfy, on a timely basis, any condition to the Closing to be satisfied by it contained in the Commitment Letters, or that the full amount of the Financing will not be available to Buyer on the Closing Date. Buyer or Fund IX VL Holdings, as applicable, has fully paid or caused to be fully paid any and all commitment fees or other fees required by the Financing Commitments, the Commitment Letters or any Fee Letter to be paid on or before the Put Option Date. Assuming the Closing is consummated in accordance with the terms of this Agreement and the satisfaction of the conditions set forth in Section 9.1 and Section 9.2, the aggregate proceeds from the Financing (net of original issue discount, upfront fees and other fees, premiums and charges payable in connection therewith, after giving effect to the maximum amount of “market flex” provided under the Debt Financing Commitments and each Fee Letter) will be sufficient for satisfaction of all of Buyer’s obligations under this Agreement in an amount sufficient to consummate the Transactions, including the payment of the Estimated Consideration, repayment of the Specified Debt and the payment of all associated costs and expenses (including the Company Transaction Expenses) (collectively, the “Required Amount”).
(c) The obligations of Buyer under this Agreement are not subject to any conditions regarding Buyer’s, its Affiliates’, or any other Person’s ability to obtain financing for the consummation of the Transactions.
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7.7 Limited Guarantees.Concurrently with the execution of the Put Option Agreement, each Guarantor has duly executed and delivered to the Company the Limited Guarantees, dated as of the Put Option Date. As of the Put Option Date, each Limited Guarantee is in full force and effect and is the valid, binding obligation of each Guarantor, enforceable in accordance with its terms, except as the same may be limited by the Equitable Exceptions, and no event has occurred which, with or without notice, lapse of time or both, would constitute a default or breach on the part of any Guarantor under the Limited Guarantees.
7.8 Solvency.
(a) Immediately after giving effect to the purchase and sale of the Shares and the consummation of the other Transactions, including the Financing and any Replacement Financing permitted by this Agreement, and assuming the satisfaction of the conditions set forth in Section 9.1 and Section 9.2, and the accuracy of the representations and warranties set forth in Article IV through Article VI herein, the Company and the Company Subsidiaries on a consolidated basis will be Solvent. In completing the Transactions, Buyer does not intend to hinder, delay or defraud any present or future creditors of Buyer or the Company or the Company Subsidiaries. Neither Buyer nor any of its Affiliates has any current intention to divest any material assets of the Acquired Companies or otherwise implement any material adverse changes to the operation of the business of the Acquired Companies following the Closing, in each case, in a manner that would reasonably be expected to materially impair the Acquired Companies’ ability to materially satisfy their creditors.
(b) For purposes of this Agreement, “Solvent” means, when used with respect to the Company, that, as of any date of determination:
(i) the fair saleable value (determined on a going concern basis) of the assets of Buyer and the Company and the Company Subsidiaries on a consolidated basis shall be greater than the total amount required to pay their liabilities (including all liabilities, whether or not reflected in a balance sheet prepared in accordance with IFRS, and whether direct or indirect, fixed or contingent, secured or unsecured, disputed or undisputed);
(ii) Buyer and the Company and the Company Subsidiaries shall be able to pay their debts, obligations, and liabilities in the Ordinary Course of Business as they become absolute and mature; and
(iii) Buyer and the Company and the Company Subsidiaries on a consolidated basis shall not have unreasonably small capital for the operation of the businesses in which they are engaged or proposed to be engaged thereafter.
7.9 International Trade and Improper Payments.Buyer has for the last five years complied in all material respects with all applicable Sanctions. Neither Buyer nor, to the Knowledge of Buyer, any of Buyer’s directors, officers, employees or any other Person associated with or acting on behalf of Buyer (a) is a Sanctioned Party or (b) has directly or indirectly engaged in the last five years in any transactions or dealings with or involving any Sanctioned Parties or in any Sanctioned Jurisdictions in violation of applicable Sanctions. Neither Buyer nor, to the Knowledge of Buyer, any of Buyer’s officers, directors, or employees, has been the subject or
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target of any investigation, prosecution, other enforcement action, or government inquiries related to Sanctions violations or submitted a voluntary self-disclosure to any U.S. or other relevant government agency regarding actual or potential Sanctions violations, in each case, except as would not prohibit, restrain or otherwise materially delay Buyer’s performance of this Agreement or ability of Buyer to consummate the Transactions. The monies used to fund Buyer’s purchase of the Shares were not funded by, or otherwise derived from, any Sanctioned Party in violation of any applicable Sanctions.
7.10 Project Vulcan Transaction Documents.Concurrently with the execution of the Put Option Agreement, Buyer has duly executed the Project Vulcan Transaction Agreement and delivered to the Company a copy thereof. As of the Put Option Date, the Project Vulcan Transaction Agreement is in full force and effect and is the valid, binding obligation of Buyer, enforceable in accordance with its terms except as the same may be limited by the Equitable Exceptions, and no event has occurred which, with or without notice, lapse of time or both, would constitute a default on the part of any party thereto. As of the Put Option Date, the Project Vulcan Transaction Agreement has not been terminated, amended, restated, amended and restated, waived, supplemented or otherwise modified in any respect, and no such termination, amendment, restatement, amendment and restatement, waiver, supplement or other modification is contemplated.
7.11 Non-Reliance. Except for the Express Representations, and subject to Section 8.16(b) and the specifically bargained-for exclusive remedies as set forth in this Agreement, Buyer represents and warrants to the Sellers, the Blocker and the Company that it is not relying upon, and will not rely upon, (a) any representation or warranty, expressed or implied, at law or in equity, made by any Person in respect of the Sellers, the Shares, the Blocker or any Acquired Company or the Sellers’, the Blocker’s or the Acquired Companies’ respective businesses, assets (including the Shares), liabilities, operations, prospects, or condition (financial or otherwise), including with respect to merchantability or fitness for any particular purpose of any assets, the nature or extent of any liabilities, the prospects of their respective businesses, the effectiveness or the success or profitability of any operations, or the accuracy or completeness of any confidential information memoranda, documents, projections, forward-looking statements, forecasts, opinions, advice, material, statement, data, or other information (financial or otherwise) regarding the Sellers, the Blocker or any Acquired Company provided to, or otherwise made available to, Buyer or its Representatives or made available to Buyer and its Representatives in connection with the Transactions, including any “data rooms,” “virtual data rooms,” management presentations, or in respect of any other matter or thing whatsoever, and (b) any Person providing or not providing any information not specifically required to be provided or disclosed pursuant to the specific representations and warranties set forth in Article IV, Article V or Article VI of this Agreement.
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ARTICLE VIII
COVENANTS
8.1 Access to Information.
(a) Subject to the Confidentiality Agreements and applicable Law, prior to the Closing or earlier termination of this Agreement, the Blocker and the Acquired Companies shall, and shall cause their respective Representatives to, provide Buyer and its Representatives, upon reasonable advance written notice, with reasonable access during normal business hours to the information, assets, premises, properties, books (including pro forma Tax Returns and related work papers), Contracts, records and personnel of the Blocker and the Acquired Companies (including furnishing to Buyer copies of such documents and information as Buyer may reasonably request), for the purposes of consummating the Transactions, planning and preparing for the integration and transition of the businesses of the Acquired Companies following the Closing (including operational, financial, information technology, human resources and other functional integration and transition planning) and any other reasonable business purpose relating to the Transactions; provided that (i) any such access and activities shall be conducted in a manner not to unreasonably interfere with the business or operations of the Acquired Companies and (ii) Buyer and its Representatives shall use commercially reasonable efforts to (x) cooperate with the Company and its Representatives and (y) minimize any disruption to the business. Notwithstanding anything herein to the contrary, no such access shall be permitted to the extent the Company determines in good faith following consultation with outside counsel that doing so would reasonably be likely to (A) require the Blocker or any Acquired Company to disclose information that would reasonably be expected to jeopardize protections under the attorney-client privilege, work product doctrine or similar privilege, or conflict with any confidentiality obligations to which the Blocker or such Acquired Company is bound, (B) violate any agreement to which the Blocker or any Acquired Company is a party or (C) violate any applicable Law which the Blocker or any Acquired Company is subject to; provided that in any such case, each of the Company and the Blocker shall use commercially reasonable efforts to provide Buyer with such information in a manner that does not violate any agreement to which the Blocker or any Acquired Company is a party or any applicable Law or otherwise jeopardize such protection (including, to the extent applicable, entry into a joint defense or common interest agreement, the seeking of a consent or waiver from any applicable third party or the making of disclosure subject to redaction or on an outside counsel-only basis). Notwithstanding the obligations set forth in this Section 8.1(a), subject to the proviso in the immediately preceding sentence, the Blocker and the Company may limit the manner of disclosure of such portions of documents or information relating to pricing or other matters that are competitively sensitive if the Company’s outside antitrust counsel, after consultation with Buyer’s outside antitrust counsel, determines that the exchange of such documents (or portions thereof) or information would reasonably be expected to violate applicable antitrust Law; provided that no such documents or information shall be withheld from Buyer entirely, and the Blocker and the Company shall instead provide such documents or information to Buyer’s outside counsel or to designated Representatives of Buyer on an outside counsel-only or “clean team” basis pursuant to the Clean Team Agreement. All requests for such access shall be directed to such Person as the Company may designate in writing from time to time (collectively, the “Designated Contacts”). Prior to the Closing, except in the Ordinary Course of Business (including pursuant to any existing commercial relationship) and not relating to or referencing the Transactions, without the prior
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written consent of the Seller Representative (which shall not be unreasonably withheld, conditioned or delayed and which shall be deemed given if the Seller Representative has not objected in writing within five Business Days following Buyer’s written request therefor), (1) none of Buyer, its Affiliates or their respective Representatives shall contact any employee, contractor, supplier, customer, landlord or other material business relationship of any Acquired Company, other than the Designated Contacts, and (2) Buyer and its Representatives shall have no right to perform invasive or subsurface investigations of the properties or facilities of the Acquired Companies; provided, however, that clause (1) shall not restrict or prohibit (w) contacts and communications with the individuals set forth on Schedule 8.1(a) of the Company Disclosure Schedules (so long as the Sellers are included in such contacts and communications) and members of the Steering Committee for purposes of integration and transition planning conducted in accordance with Section 8.1(b), (x) any calls or meetings with customers, suppliers or landlords of any Acquired Company that have been coordinated with the Company (such coordination not to be unreasonably withheld, conditioned or delayed), (y) contacts or communications made in connection with seeking or obtaining any consent, approval or clearance of, or responding to any inquiry or request from, any Governmental Body that have been coordinated with the Company (such coordination not to be unreasonably withheld, conditioned or delayed), or (z) discussions with members of management or other employees of the Company or any Company Subsidiary regarding post-Closing employment, compensation, retention, equity or other incentive arrangements.
(b) Prior to the Closing, the Company and Buyer shall establish and maintain a steering committee (the “Steering Committee”) comprising employees of the Acquired Companies who are subject matter experts with respect to the key functional areas of the business of the Acquired Companies and the Blocker as designated by the Company, together with Representatives of Buyer as designated by Buyer, in each case, as reasonably agreed between the Company and Buyer. Each of the Company and Buyer shall have the right to designate, and from time to time to remove, replace or substitute, its respective members of (or, in the case of the Company, the employees participating in) the Steering Committee, by written notice to the other Party, and no such designation, removal, replacement or substitution shall require the consent of the other Party. The Company and Buyer shall convene the Steering Committee on a regular basis commencing no later than 45 days following the Put Option Date, and, unless otherwise agreed, not less frequently than twice per month (in person or, if mutually agreed, by telephone or video conference), for the purposes of integration, separation and transition planning, business planning and the discussion of material developments in respect of the Blocker and the Acquired Companies, including the Consultation Obligations, the status of existing Specified Projects, the status of the consents referred to in Section 8.22, the status of the Lease Buy-Out Option or Lease Extension Option pursuant to Section 8.23 and any material developments in respect of the Legal Proceedings scheduled pursuant to Section 6.16. Notwithstanding anything to the contrary in this Section 8.1(b): (i) the Steering Committee shall be advisory only and shall have no authority to direct, control or make decisions with respect to the business or operations of the Blocker or any Acquired Company, and nothing in this Section 8.1(b) shall give Buyer, directly or indirectly, the right to control or direct the operations of the Blocker or any Acquired Company prior to the Closing, (ii) all activities of, and information shared through, the Steering Committee shall be subject to the Confidentiality Agreements, applicable Law (including all Antitrust Laws) and such protocols (including clean team arrangements and limitations on the exchange of competitively sensitive information) as mutually determined by outside antitrust counsel to the Company and
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outside antitrust counsel to Buyer, (iii) no Party shall be required to take any action pursuant to this Section 8.1(b) that would violate, or that its outside counsel reasonably determines could reasonably be expected to violate, applicable Law and (iv) no failure to establish or convene the Steering Committee in accordance with this Section 8.1(b) shall constitute a failure of any condition set forth in Article IX or a basis for termination pursuant to Article X except in the case of Willful Breach of this Section 8.1(b) by the Sellers or the Company. For the avoidance of doubt, from the Put Option Date until the Closing, the Sellers shall continue to control the operations of the Acquired Companies. The Steering Committee shall automatically be dissolved without further action of either Buyer or the Company upon the earlier to occur of (1) the valid termination of this Agreement pursuant to Section 10.1 and (2) the Closing.
(c) For a period of seven years after the Closing, Buyer shall cause the Blocker, the Company and the Company Subsidiaries to (i) provide the Seller Representative and its Representatives, upon reasonable advance written notice and under reasonable circumstances, reasonable access, at the Seller Representative’s expense, under the supervision of the personnel of the Blocker or the Acquired Companies and in accordance with the reasonable procedures established by Buyer (including a requirement that any third-party Person for whom access is requested enter into a customary access letter), to the appropriate officers, books and records (including all electronic data related thereto) of the Blocker, the Company and the Company Subsidiaries during the Company’s normal business hours, (ii) permit the Seller Representative and its Representatives to make copies of any such books and records, (iii) furnish to the Seller Representative and its Representatives any financial and operating data or other information of the Blocker, the Company and the Company Subsidiaries as reasonably requested by the Seller Representative to the extent necessary for the preparation of insurance claims, financial statements, regulatory filings, Tax Returns of the Seller Representative or its Affiliates in respect of periods ending on or prior to the Closing, or in connection with any Legal Proceedings and (iv) furnish to the Seller Representative and its Representatives access to any assets of the Blocker, the Company and the Company Subsidiaries (and any financial or other information relating thereto) upon reasonable advance notice and solely to the extent required to meet the Seller Representative’s and its Affiliates’ contractual obligations; provided that such access does not unreasonably interfere with the business of Buyer and its Affiliates, including the Blocker, the Company and the Company Subsidiaries. Notwithstanding anything herein to the contrary, no such access shall be permitted to the extent it is determined upon consultation with outside counsel that doing so would reasonably be expected to (A) require Buyer or any of its Affiliates to disclose information that would reasonably be expected to jeopardize protections under the attorney-client privilege, work product doctrine or similar privilege, or conflict with any confidentiality obligations to which Buyer or any of its Affiliates is bound, (B) violate any agreement to which Buyer or any of its Affiliates is a party or (C) violate any applicable Law which Buyer or any of its Affiliates is subject to; provided that in any such case, Buyer shall use its commercially reasonable efforts to provide the Seller Representative such information in a manner that does not violate any agreement to which Buyer or any of its Affiliates is a party or any applicable Law or otherwise jeopardize such protection (including, to the extent applicable, entry into a joint defense or common interest agreement or the making of disclosure subject to redaction or on an outside counsel-only basis). Buyer agrees to cause the Blocker and the Acquired Companies to hold all the books and records of the Blocker and the Acquired Companies existing on the Closing Date and not to destroy or dispose of any thereof for a period of seven years from the Closing Date or such longer time as may be required by Law.
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8.2 Conduct of the Business Pending the Closing.
(a) Prior to the Closing or earlier termination of this Agreement in accordance with Article X, except (i) as required by applicable Law, (ii) as otherwise required by this Agreement including Section 8.23, the Redemption in accordance with Section 8.25 and the Specified Projects solely to the extent permitted by Section 8.26, or the Transaction Documents, or (iii) with the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed; provided that consent shall be deemed to have been given if Buyer does not object in writing within two (2) Business Days from the date on which a request of such consent is delivered to Buyer in writing in accordance with Section 11.7 of this Agreement), the Company and the Blocker shall, and the Company shall cause the Company Subsidiaries to (A) use reasonable best efforts to conduct the respective businesses of the Acquired Companies and the Blocker in the Ordinary Course of Business and (B) use commercially reasonable efforts to (1) preserve intact the goodwill and the present business organization of the Acquired Companies, and (2) preserve intact the business relationships of the Acquired Companies with their material customers, vendors, distributors, lessors, licensors and other commercial counterparties. Notwithstanding the foregoing, no deviation from the Ordinary Course of Business by the Company or any Company Subsidiary, and no action, activity or conduct of the Company or any Company Subsidiary, shall constitute a breach of this Section 8.2(a) to the extent such deviation, action, activity or conduct is necessary and proportionate to, and consistent in nature and scope with, actions taken by similarly situated companies in the industries in which such entity operates to mitigate, remedy, respond to or otherwise address the Effects of any Emergency on the Company’s business; provided that the Company shall have given Buyer prompt written notice of (and, to the extent reasonably practicable, consulted with Buyer in advance regarding) such deviation, action, activity or conduct.
(b) Prior to the Closing or earlier termination of this Agreement in accordance with Article X, except (i) as required by applicable Law, (ii) as otherwise required by this Agreement, including Section 8.23, the Redemption in accordance with Section 8.25 and the Specified Projects solely to the extent permitted by Section 8.26, or the Transaction Documents, (iii) with the prior written consent of Buyer (which consent shall not be unreasonably withheld, delayed or conditioned; provided that consent shall be deemed to have been given if Buyer does not object in writing within five Business Days from the date on which a request for such consent is delivered to Buyer in writing in accordance with Section 11.7 of this Agreement), (iv) as may be required in connection with the resignation and replacement of Citibank, N.A. (or any of its Affiliates) as administrative agent, collateral agent, security agent or common ABL security agent (or any similar agency capacity) under any documentation in connection with the Specified Debt or (v) as set forth in Schedule 8.2(b) of the Company Disclosure Schedules, the Company shall not, and shall cause the Company Subsidiaries not to, and the Blocker shall not:
(i) transfer, issue, sell, grant, pledge, redeem, repurchase, dispose of, subject to any Lien, or authorize or propose the issuance, sale, transfer, pledge, redemption, repurchase of or imposition of any Lien on any Equity Securities of any Acquired Company or rights convertible into, exchangeable or exercisable for, or evidencing the right to subscribe for any Equity Securities of any Acquired Company, or any rights, warrants, calls, subscriptions or options to purchase any Equity Securities of any Acquired Company, other than pursuant to existing equity compensation plans or in connection with customary employment arrangements in the Ordinary Course of Business; it being understood and agreed that the grant of a Permitted Lien shall not violate this clause (i);
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(ii) reclassify, adjust, combine, split, subdivide or amend the terms of, or redeem, purchase or otherwise acquire, directly or indirectly, any of its capital stock or issue or authorize the issuance of any other securities in respect of, in lieu of, or in substitution for, shares of its capital stock;
(iii) (A) waive, release, settle or resolve any pending or threatened Legal Proceeding involving amounts in excess of $5,000,000 or equitable relief, fines in excess of $5,000,000 or criminal penalties, (B) commence any Legal Proceeding involving amounts in excess of $5,000,000 or (C) cancel or compromise any Debt in excess of $5,000,000, other than the settlement of accounts payable or other Debt incurred in the Ordinary Course of Business;
(iv) declare, set aside, issue, make or pay any non-cash dividends or other distributions of non-cash assets in respect of any Equity Securities of the Acquired Companies, other than any dividends or distributions by any Acquired Company to another Acquired Company;
(v) other than in the Ordinary Course of Business, or with respect to non-exclusive licenses of Intellectual Property granted in the Ordinary Course of Business, (x) assign, transfer, license, lease, abandon or sell any assets of the Acquired Companies that are material to the Acquired Companies, taken as a whole, or (y) pledge or subject any material asset or property of the Acquired Companies to any Lien (other than any Permitted Liens) not in existence as of the Put Option Date;
(vi) acquire any ownership interest in real property providing for a purchase price or annual payments in excess of $10,000,000;
(vii) enter into, conduct, engage in or otherwise operate any new lines of business outside of metal packaging and/or the regions in which the Acquired Companies operate as of the Put Option Date, other than any new line of business that is incidental to any existing line of business of the Acquired Companies;
(viii) amend the Organizational Documents of the Company, the Blocker or any of the Company Subsidiaries in any material respect;
(ix) other than (1) as required by applicable Law or (2) as required by a Company Benefit Plan set forth on Schedule 6.14(a) of the Company Disclosure Schedules (as in effect on the Put Option Date), (A) materially increase the compensation or benefits payable to any employee or other service provider of any Acquired Company having an annual base salary in excess of $250,000 or annualized fee in excess of $250,000, other than in connection with annual merit increases or promotions made in the Ordinary Course of Business; (B) accelerate the timing of any payment or vesting of any compensation or benefit to any employee or other individual service provider of any Acquired Company having an annual base salary or annualized fee in excess of $250,000; (C) except as otherwise permitted by this Section 8.2(b)(ix), enter into, establish, amend in a materially
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adverse manner or terminate any Company Benefit Plan (or any benefit plan, program, policy, practice, agreement, or arrangement that would be a Company Benefit Plan if in effect as of the Put Option Date); (D) hire or engage (or offer to hire or engage) any individual service provider with an annual base salary above $250,000 or annualized fee above $250,000; (E) alter the at-will employment status of any employee presently classified as such (to the extent employed as of the Put Option Date) or terminate (other than for cause) the services of any individual service provider of any Acquired Company having an annual base salary or an annualized fee in excess of $250,000, (F) take any action to fund, or increase the funding of, any Company Benefit Plan, other than solely to the extent necessary as a result of actuarial requirements; (G) take any action which would cause or result in the imposition of an excise tax under Section 4980 of the Code; or (H) provide any new transaction-based bonus or other transaction-based compensation or benefits to any employee or other service provider of any Acquired Company;
(x) except (1) with respect to the Consultation Obligations, (2) as required to comply with the terms of any existing collective bargaining agreement or similar Contract, (3) for the renewal or extension of any existing collective bargaining agreement or other similar Contract on substantially similar terms, solely to the extent such renewal or extension does not materially increase the liabilities of the Acquired Companies, taken as a whole, or (4) as otherwise required by applicable Law, recognize or establish any works council, economic and social committee, labor union, association or other employee representative body as the bargaining representative for any employees of any Acquired Company or enter into any collective bargaining agreement or other similar Contract with any works council, economic and social committee, labor union, association or other employee representative body with respect to any employees of any Acquired Company;
(xi) disclose any of its material trade secrets to a third party other than (x) to Buyer, its Affiliates and its and their respective Representatives in connection with the consummation of the Transactions or (y) in the Ordinary Course of Business pursuant to a written agreement containing confidentiality obligations;
(xii) incur Debt, other than Debt under existing revolving facilities and non-recourse and supplier financing facilities, in the Ordinary Course of Business for working capital purposes that will be paid off on the Closing Date pursuant to the Payoff Letters, in a principal amount of more than $5,000,000 individually;
(xiii) enter into, amend, modify, supplement or terminate any material existing letters of credit, surety, performance and other bonds, bankers’ acceptances, and similar facilities and guarantees, in each case in a manner that could reasonably be expected to be adverse in any material respect to the Acquired Companies;
(xiv) agree to, request or adopt (A) any moratorium or suspension of payment of any indebtedness with respect to any Acquired Company, (B) the appointment of a receiver, administrator, liquidator, assignee, trustee or other similar officer with respect to any Acquired Company or (C) an assignment for the benefit of creditors or an admission in writing of the inability of any Acquired Company to pay its debts as they become due;
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(xv) adopt a plan of complete or partial liquidation or other resolution providing for or authorizing a liquidation, dissolution, merger, consolidation or other restructuring of any Acquired Company;
(xvi) wind down, liquidate, dissolve, merge, consolidate or restructure any of the Acquired Companies or their respective workforces, plants, offices, facilities or production lines which would reasonably be expected to have an impact of at least $10,000,000, individually or in the aggregate, on the Acquired Companies;
(xvii) other than in the Ordinary Course of Business, initiate, announce, authorize, commit to or implement any material expansion, investment, idling, curtailment, reduction or closure;
(xviii) enter into or agree to enter into any Contract to (A) make any acquisition (by merger, consolidation, acquisition of stock or assets or otherwise) of any assets or businesses, other than acquisitions of inventory or other assets (including equipment) in the Ordinary Course of Business, (B) merge, combine or consolidate with any Person (other than another Acquired Company) (whether by merger or consolidation, purchase of all or a substantial portion of the Equity Securities of such Person or by any other means) or (C) for the disposition or divestiture of any assets or businesses, other than the sale of assets no longer used by the Acquired Companies and/or obsolete equipment, in each case, in the Ordinary Course of Business;
(xix) make any material change to any of its present accounting methods or principles in any material respect, except as required by IFRS (or any interpretation thereof) or applicable Law;
(xx) make (except in the Ordinary Course of Business), change or revoke any material Tax election (including any entity classification election pursuant to Treasury Regulations Section 301.7701-3), adopt or change any Tax accounting method or period, file any amended income Tax Return or other material Tax Return, initiate or enter into any voluntary disclosure agreement, closing agreement or similar agreement or arrangement with any Taxing Authority, request any Tax ruling, surrender any material Relief or right to claim a material refund of Taxes, or settle, compromise, concede or abandon any material Tax claim or assessment, in each case, relating to the Blocker or any Acquired Company;
(xxi) (i) enter into any binding commitment for, authorize or incur any capital expenditures (A) in fiscal year 2026, in excess of 115% of the aggregate capital expenditures set forth in the 2026 capital expenditure budget of the Acquired Companies, (B) in fiscal year 2027, in excess of 115% of the aggregate capital expenditures set forth in the forecasted 2027 capital expenditure budget of the Acquired Companies, (C) in fiscal year 2028, in excess of 115% of the aggregate capital expenditures set forth in the forecasted 2028 capital expenditure budget of the Acquired Companies, plus, in the case of each of clauses (B) and (C), the amount (if any) by which the aggregate capital expenditures set forth in the capital expenditure budget for the immediately preceding fiscal year exceeded the capital expenditures actually made by the Acquired Companies in
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such fiscal year, or (ii) fail to make capital expenditures of the Acquired Companies in each fiscal year (or portion thereof) prior to the Closing in an aggregate amount at least equal to 90% of aggregate capital expenditures set forth in the forecasted capital expenditure budget of the Acquired Companies for such fiscal year, other than in connection with any Scheduled Specified Project; provided that for purposes of this clause (xxi) and without duplication across fiscal years, capital expenditures shall be counted against the fiscal year in which such capital expenditures are first incurred;
(xxii) amend or modify in any material respect, renew, replace, terminate (other than any expiration in accordance with its terms) or waive any material right under, any Material Contract (other than any Material Contract disclosed on Schedule 6.13(a)(i) or Schedule 6.13(a)(xi) of the Company Disclosure Schedules or otherwise in connection with the Lease Extension Option), in each case, other than (A) renewals or extensions of any existing Material Contract on substantially the same terms or terms more favorable to the Acquired Companies than those set forth in such Material Contract, in each case, in the Ordinary Course of Business, (B) amendments or modifications to any existing Material Contracts on terms more favorable to the Acquired Companies than those set forth in such Material Contract or (C) renewals, extensions, replacements, amendments or modifications to any existing Material Contract which would not reasonably be expected to (x) result in a 5% price reduction net of contractual cost pass-through with respect to any customer contract or (y) have an adverse net impact of more than $25,000,000 with respect to any procurement contract;
(xxiii) in the case of the Blocker, conduct any business or operations, issue any equity interests or incur any indebtedness or other material liabilities or obligations;
(xxiv) (A) increase the compensation or benefits payable to any Non-Executive Director in excess of the amounts or benefits set forth on Schedule 1.1(c) with respect to each Non-Executive Director or (B) engage any individual in the role of Non-Executive Director (or other similar role); or
(xxv) agree to do anything prohibited by this Section 8.2(b).
8.3 Regulatory Approvals.
(a) Each of the Parties shall, and shall cause its Affiliates to, use its reasonable best efforts to take, or cause to be taken, all actions, to file, or cause to be filed, all documents and to do, or cause to be done, all things necessary, proper or advisable to consummate the Transactions, including preparing and filing all documentation to effect all necessary filings, consents, waivers, approvals, authorizations, Permits or Orders from all Governmental Bodies. In furtherance and not in limitation of the foregoing, unless otherwise mutually agreed by the Parties, each of the Parties agrees to make, or cause to be made, an appropriate filing of a Notification and Report Form pursuant to the HSR Act with respect to the Transactions no later than twenty (20) Business Days after the Put Option Date, and each of the Parties agrees to make, or cause to be made, all required filings under the Antitrust Laws and the Foreign Investment Laws set forth on Schedule 8.3(a) of the Company Disclosure Schedules. Each of Buyer and the Company shall, and shall cause its Affiliates to, (A) respond as promptly as reasonably practicable to any inquiries or
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requests received from any Governmental Body pursuant to the HSR Act, the other Antitrust Laws or Foreign Investment Laws and supply any additional information or documentation that may be requested, (B) use its reasonable best efforts to cause the waiting periods or other requirements under the HSR Act, all other applicable Antitrust Laws and the Foreign Investment Laws to terminate or expire before the Extended Termination Date, and (C) make, or cause to be made, all filings required of each of them or any of their respective Subsidiaries or Affiliates under the other Antitrust Laws and the Foreign Investment Laws as described on Schedule 8.3(a) of the Company Disclosure Schedules. Buyer shall control, and shall have the sole right to determine whether to withdraw and refile its HSR Act filing or any other filing required by Antitrust Laws or Foreign Investment Laws, and whether to enter into any agreement with any Governmental Body to extend any waiting period under the HSR Act or any other Antitrust Laws or Foreign Investment Laws, or any voluntary timing agreement or other commitment not to consummate the Transactions for any period of time, in each case after reasonable prior consultation with the Company and after considering in good faith the Company’s reasonable comments. In the event that any Party receives a request for information or documentary material from any Governmental Body with respect to the Transactions pursuant to the HSR Act (a “Second Request”) or any other Antitrust Laws or Foreign Investment Laws, such Party will use its reasonable best efforts to respond as promptly as reasonably practicable and to certify compliance with any such request for information or documentary material. Buyer shall be responsible for fifty percent (50%) of all filing fees required by the HSR Act or any Antitrust Law or Foreign Investment Law, and each Party shall bear any other costs and expenses, including, any attorney or advisor fees, in connection with its obligations under this Section 8.3.
(b) Buyer shall control and direct the process by which the Parties seek to obtain clearance or the expiration of applicable waiting periods under the HSR Act or any other Antitrust Law or Foreign Investment Law, including by directing the strategy, timing, and making any and all final determinations (other than whether to file pursuant to Section 8.3(a)), including whether, when and how to oppose any action by any Governmental Body, or anything else related to the review, investigation or clearance of the Transactions by any Governmental Body, in each case after consultation with the Company and after considering in good faith the Company’s reasonable comments. The Parties shall, and shall cause their Affiliates to, cooperate in all respects with each other in connection with any filing or submission made with any Governmental Body in connection with the Transactions and regarding any investigation or other inquiry by any Governmental Body in connection with the Transactions, which shall include (i) furnishing to the other Parties such necessary information and reasonable assistance as the other Parties may request in connection with the foregoing, (ii) promptly informing the other Parties of any oral or written communication with any Governmental Body regarding any of the Transactions, and (iii) providing outside counsel for the other Parties with advance copies of all filings, including any attachments or exhibits, made by such Party. Any Party may, as it deems advisable and necessary, reasonably designate any competitively sensitive material provided to the other Parties under this Section 8.3(b) as “outside counsel only” and any such materials shall not be shared with employees, officers, managers, or directors or their equivalents of the receiving Party without the prior written consent of the providing Party. Each Party shall permit counsel for the other Parties to review in advance, and consider in good faith the views of the other Parties in connection with, any proposed written communication to any Governmental Body in connection with the Transactions. The Parties agree not to participate, or to permit their Affiliates or advisors to participate, in any pre-arranged substantive meeting or discussion, either in person or by telephone or video conference, with any Governmental Body in connection with the Transactions unless it consults with the other Parties in advance and, to the extent not prohibited by such Governmental Body, gives the other Parties the opportunity to attend and participate.
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(c) Subject to Section 8.3(b), Buyer shall, and shall cause its Affiliates to, take any and all steps and actions necessary, proper, or advisable to avoid or eliminate each and every impediment under any Antitrust Law including (i) contesting, defending and appealing any threatened or pending litigation, claim, suit, action or other proceeding or preliminary or permanent injunction or other Order that would adversely affect the ability of any Party to consummate the Transactions; or (ii) agreeing to take any other action as may be required by a Governmental Body in order to (A) obtain all necessary consents, approvals and authorizations by the Extended Termination Date, (B) avoid the entry of, or to have vacated, lifted, dissolved, reversed or overturned any decree, judgment, injunction or other Order, whether temporary, preliminary or permanent, that is in effect in any Legal Proceeding and that prohibits, prevents or restricts consummation of the Transactions, or (C) effect the expiration or termination of any waiting period, which would otherwise have the effect of preventing the Closing by the Extended Termination Date. Without limiting the foregoing, and notwithstanding anything herein to the contrary, Buyer acknowledges and agrees that its and its Affiliates’ obligations under this Section 8.3 include proposing, negotiating, offering to commit to and effect (and if such offer is accepted, committing to and effecting), by order, consent decree, hold separate orders or otherwise, (i) the sale, divestiture, license, or other disposition of any assets, properties, products, product lines, services, businesses or rights of Buyer or its Affiliates or, effective as of the Closing, the Company or the Company Subsidiaries or any interest or interests therein, (ii) terminating, amending or modifying any Contract or other business relationship of Buyer or its Affiliates or, effective as of the Closing, the Company or the Company Subsidiaries and (iii) taking or committing to take any action with respect to any of the assets, properties, products, product lines, services or businesses of Buyer or its Affiliates, or effective as of the Closing, the Company or the Company Subsidiaries or any interest or interests therein, in each case, in order to avoid the entry of, or to effect the dissolution of, any Order in any Legal Proceeding, or any impediment under any Antitrust Law or any other Law, which would otherwise have the effect of preventing the consummation of the Transactions by the Extended Termination Date; provided that any action contemplated by the foregoing clauses (i), (ii) and (iii) shall be conditioned upon (and shall not be completed prior to) the consummation of the Transactions. At the request of Buyer, the Company shall fully cooperate and participate with respect to any Buyer action or decision in connection with this Section 8.3, including by agreeing to take any action, or forego any action, with respect to the Company or the Company Subsidiaries; provided that the Sellers’ written consent is obtained for any actions that may be required prior to consummation of the Transactions (such consent not to be unreasonably withheld, conditioned or delayed).
(d) Buyer shall not, and shall cause its Affiliates not to, (x) in respect of Fund IX only, take any action (including acquiring, entering into any agreement to acquire (by merger, consolidation, acquisition of equity interests or assets, joint venture or otherwise) or otherwise agreeing to acquire, any Person), and (y) in respect of Buyer and each of its Affiliates other than Fund IX, acquire or enter into any agreement to acquire (by merger, consolidation, acquisition of equity interests or assets, joint venture or otherwise) any Person that manufactures food packaging or other containers that compete directly with the Company’s metal can or metal aerosol products in the same geographic area, in each case, if such action, acquisition or the entering into such
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agreement could reasonably be expected to (i) impose any material delay in the obtaining of, or materially increase the risk of not obtaining, any applicable approval from a Governmental Body, permit or Order necessary to consummate the Transactions or the expiration or termination of any waiting period under applicable Law; (ii) materially increase the risk of any Governmental Body entering an Order prohibiting the consummation of the Transactions or materially increase the risk of not being able to remove any such Order on appeal or otherwise; (iii) impose any material delay or impede the expiration or termination of any applicable waiting period under the HSR Act or any other Antitrust Laws or (iv) otherwise materially delay or prevent the consummation of the Transactions. Notwithstanding the foregoing, none of Buyer or any of its Affiliates will be deemed to have breached this Section 8.3(d), as a result of such Person acquiring or entering into any agreement to acquire any Person unless such acquisition or entrance into such agreement to acquire such Person results in any Party being required to make a filing or to seek any approval that is required by any Governmental Body in connection with the Transactions and such filing or approval would have delayed the satisfaction or waiver of the conditions set forth in Article IX (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions at such time) past March 15, 2028.
8.4 Further Assurances.Subject to, and not in limitation of, Section 8.2, until the Closing or earlier termination of this Agreement in accordance with Article X, each of Buyer, the Sellers, the Blocker and the Company shall use (and the Company shall cause each of the Company Subsidiaries to use) its reasonable best efforts to take all actions as may be necessary or otherwise reasonably requested by another Party to consummate the Transactions, in each case, consistent with the terms of this Agreement to carry out any of the provisions hereof or to make fully effective the consummation of the Transactions.
8.5 Confidentiality.Buyer acknowledges that the information provided to it in connection with this Agreement and the Transactions is subject to the terms of the (a) confidentiality agreement between SHI and the Company, dated as of February 4, 2026 (the “Silgan Confidentiality Agreement”), (b) confidentiality agreement between AIP, LLC and the Company, dated as of October 6, 2025 (the “Fund IX Confidentiality Agreement”) and (c) Clean Team Agreement, by and among the Company, SHI and AIP, LLC, dated as of April 29, 2026 (the “Clean Team Agreement”, and together with the Silgan Confidentiality Agreement and the Fund IX Confidentiality Agreement, the “Confidentiality Agreements”) the terms of each of which are incorporated herein by reference.
8.6 Indemnification and Insurance.
(a) From and after the Closing, Buyer shall, and shall cause the Blocker and each Acquired Company (each, a “Primary Indemnitor”) to, indemnify, defend and hold harmless, to the fullest extent permitted under applicable Law, the Persons who at or prior to the Closing were directors, managers, managing members or officers of the Blocker or any Acquired Company (collectively, the “Indemnitees”), with respect to all acts or omissions by them in their capacities as such or taken by them at the request of the Blocker or any Acquired Company, in each case, at or prior to the Closing.
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(b) Buyer hereby acknowledges that certain Indemnitees may have rights to indemnification, advancement of expenses and/or insurance provided by Persons other than the Blocker or the Acquired Companies (collectively, the “Secondary Indemnitors”). Buyer hereby agrees that (i) the Primary Indemnitors are the indemnitor of first resort (i.e., their obligations to the Indemnitees are primary and any obligation of the Secondary Indemnitors to advance expenses or to provide indemnification for the same expenses or liabilities incurred by any Indemnitee are secondary) and (ii) the Primary Indemnitors irrevocably waive, relinquish and release the Secondary Indemnitors from any and all claims against such Secondary Indemnitors for contribution, subrogation or any other recovery of any kind in respect thereof. Each of Buyer and the Sellers further agree that no advancement or payment by a Secondary Indemnitor on behalf of an Indemnitee with respect to any claim for which an Indemnitee has sought indemnification from the Primary Indemnitors shall affect the foregoing and the applicable Secondary Indemnitor shall have a right of contribution and/or be subrogated to the extent of such advancement or payment to all of the rights of recovery of the Indemnitee against the Primary Indemnitor. Buyer and the Indemnitees agree that the Secondary Indemnitors are express third party beneficiaries of the terms of this Section 8.6(b).
(c) From and after the Closing, Buyer shall cause, or shall cause the Company to cause, the Organizational Documents of the Blocker, the Company and each Acquired Company to contain provisions with respect to limitation of liability, indemnification and exculpation from liability that are no less favorable to the Indemnitees as those provisions set forth as of the Put Option Date in the applicable Organizational Documents of the Blocker and each Acquired Company, which provisions, in each case, shall not be amended, repealed or otherwise modified in a manner that would adversely affect the rights thereunder of the Indemnitees.
(d) At or prior to the Closing, Buyer shall, or, immediately upon the Closing, shall cause the Company and the Company Subsidiaries to, purchase the directors’ and officers’ “tail” or “runoff” insurance program covering the Blocker’s and the Acquired Companies’ directors and officers either (i) under the existing directors’ and officers’ liability, employment practices liability and pension trustees liability insurance plans to the extent such plan remains available as of the Closing on materially the same terms and conditions or (ii) to the extent that such plans are no longer available on materially the same terms and conditions at the Closing, a directors’ and officers’ liability “tail” or “run-off” insurance program (such coverage shall have an aggregate coverage limit over the term of such policy in an amount not to exceed the annual aggregate coverage limit under the Company’s existing directors’ and officers’ liability, employment practices liability and pension trustees liability insurance policies, in either case, for a period of six years after the Closing with respect to matters occurring prior to the Closing Date (such purchased policy, the “D&O Insurance Policy”); provided that the total cost of such “tail” or “runoff” program shall not exceed 250% of the last annual premium paid prior to the Put Option Date under such existing plan. The costs of the D&O Insurance Policy shall be borne fifty percent (50%) by Buyer and fifty percent (50%) by the Company as a Company Transaction Expense.
(e) In the event that Buyer, the Company or any of its successors or assigns (i) consolidates with or merges into any other Person and is not the continuing or surviving corporation of such consolidation or merger, or (ii) transfers or conveys all or substantially all of its properties and assets to any Person, then, and in each such case, Buyer, the Company or any of its successors or assigns shall cause the successors and assigns of Buyer and the Company in such consolidation or merger to assume all of the obligations of Buyer and the Company set forth in this Section 8.6, as applicable.
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8.7 Publicity.
The initial press release of the Parties regarding the Transactions and the execution of the Put Option Agreement shall be mutually agreed by Buyer and each Seller. Thereafter, no Party shall, and such Party shall cause its Affiliates and Representatives not to, issue or cause the publication of any press release or public announcement concerning this Agreement or the Transactions without obtaining the prior written approval of the other Parties; provided that nothing herein will prohibit (a) any Party from issuing or causing publication of any such press release or public announcement to the extent that such disclosure is, upon advice of counsel, required by (x) Law, (y) obligations pursuant to any listing agreement with or rules of any national securities exchange or interdealer quotation service or (z) the request of any Governmental Body (or, in the case of Buyer and the Ardagh Seller, by the fiduciary duties of the respective board of directors of Buyer’s Affiliate and the Ardagh Seller’s Affiliate given the applicable Affiliate’s status as a public reporting company as reasonably determined by the applicable board of directors), in which case the Party making such determination (with respect to Buyer, to the extent practicable given its (or its Affiliates’) status as a public reporting company under the federal securities Laws) will consult with the other Parties prior to making such disclosure and the disclosing Party shall consider in good faith any comments provided by the other Parties, (b) the Sponsor or Fund IX or their respective Affiliates from (i) communicating in the ordinary course of business with their current or prospective limited partners or investors regarding this Agreement or the Transactions, including in connection with fundraising and reporting activities (provided such limited partners or investors are subject to customary confidentiality obligations) or (ii) disclosing the consummation of the Transactions on their respective websites and otherwise in the ordinary course of their business (provided that such disclosure is consistent with the content of any press release or public announcement permitted by this Section 8.7) and that such disclosure does not include information regarding economic terms without the consent of Buyer and each Seller, or (c) any Party from making any disclosure of information concerning this Agreement in connection with any dispute between the Parties regarding this Agreement, the other Transaction Documents or the Transactions.
8.8 Conduct of the Parties Prior to the Closing.
(a) During the period commencing on the Put Option Date and terminating on the earlier to occur of the Closing or the termination of this Agreement pursuant to and in accordance with Article X, Buyer shall use commercially reasonable efforts not to take or agree to take any action which would reasonably be expected to interfere with (x) the consummation of the Transactions or (y) Buyer’s ability to satisfy any of its obligations under this Agreement; provided, for the avoidance of doubt, that in no event shall any of the following be deemed to be a breach of this Section 8.8: (i) an action or omission required, expressly contemplated or permitted by this Agreement or any other Transaction Document (including any action taken in furtherance of Buyer’s obligations under Section 8.3) or required by applicable Law or any Governmental Body; (ii) any action or omission taken with the consent of, or at the request of, the Company; (iii) the exercise or enforcement by Buyer of any of its rights, or the pursuit of any of its remedies, under this Agreement or any other Transaction Document, including the right to withhold its consent in respect of any matter requiring Buyer’s consent hereunder; or (iv) the operation of the business of Buyer and its Affiliates in the ordinary course of business.
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(b) Each Seller shall (A) give Buyer reasonably prompt written notice of (1) any Legal Proceeding or Order brought, or threatened in writing to be brought, by any Person in respect of or in connection with the Transactions or (2) the occurrence of any other event that would reasonably be expected to prevent, materially impair or materially delay the Transactions; and (B) otherwise keep Buyer reasonably informed of the matters set forth on Schedule 8.8(b).
8.9 Employee Matters.
(a) For a period of twelve (12) months following the Closing (or for such shorter period of time during which a Continuing Employee remains employed with the Acquired Companies or an Affiliate), to the extent permitted under applicable Law, Buyer shall provide, or shall cause to be provided, to each employee of any of the Acquired Companies (each, a “Continuing Employee”), (i) annual base salary or base wages, as applicable, and target short-term incentive compensation opportunities, in each case, that are no less favorable in the aggregate than the annual base salary or base wages, as applicable, and target short-term incentive compensation opportunities provided to such Continuing Employee immediately prior to the Put Option Date, (ii) employee health and welfare benefits, retirement benefits, and vacation benefits (but excluding, for the avoidance of doubt, severance benefits) that are (x) substantially similar in the aggregate to those provided to such Continuing Employee immediately prior to the Closing, or (y) no less favorable than those provided to similarly situated employees of Buyer as of the Closing and (iii) severance and termination payments and benefits that are no less favorable than the severance and termination payments and benefits that the Continuing Employee would be entitled to receive upon a termination of employment immediately prior to the Closing. For purposes of eligibility, vesting, and level of benefits (other than benefit accrual under defined benefit plans or equity or equity-based plans or long-term incentive arrangements) under the employee benefit plans of Buyer in which Continuing Employees are eligible to participate following the Closing Date (the “Buyer Plans”), to the extent permitted under applicable Law, Buyer shall credit each Continuing Employee with his or her service with any Acquired Company and any predecessor entities prior to the Closing in accordance with the foregoing sentence, except to the extent such credit would result in the duplication of benefits for the same period of service or such service was not recognized under an analogous Company Benefit Plan prior to the Closing.
(b) With respect to each Buyer Plan, except as otherwise required under applicable Law, Buyer shall use commercially reasonable efforts to cause each Continuing Employee to be eligible to participate as promptly as practicable, without any waiting period, in any and all such Buyer Plans, and Buyer shall use commercially reasonable efforts to (i) cause to be waived under any applicable Buyer Plan any pre-existing condition limitations, actively-at-work requirements, exclusions and waiting periods to the extent waived or not applicable under, or previously satisfied by such Continuing Employee and his or her eligible covered dependent under, the relevant Company Benefit Plan, and (ii) for the year in which a Continuing Employee transitions to the applicable Buyer Plans, cause the Continuing Employees and any eligible covered dependent to be given credit under the applicable Buyer Plan for amounts paid prior to the date on which such Continuing Employees commence participation in such Buyer Plan for purposes of applying deductibles, co-payments, co-insurance and out-of-pocket maximums.
(c) Notwithstanding anything in this Agreement to the contrary and unless otherwise required under applicable Law, the terms and conditions of employment for any Continuing Employees covered by a collective bargaining agreement shall be governed by the applicable collective bargaining agreement until the expiration, modification or termination of such collective bargaining agreement in accordance with its terms or applicable Law.
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(d) The Sellers shall, and shall cause their Affiliates to, (i) comply in all material respects with all applicable Laws relating to their obligations to notify and consult with, obtain the authorization or approval of, or request the advice of, any works councils, economic and social committees, labor unions, associations or other employee representative bodies and relevant employees of any Acquired Company or their Representatives, in each case, prior to the Closing as required in connection with the Transactions (the “Consultation Obligations”), (ii) provide Buyer and its Affiliates with any required information as reasonably requested in respect of, or for the purpose of, such information or consultation process if required under applicable Law, (iii) keep Buyer and its Affiliates informed of the status of such information and consultation process and any material developments if required under applicable Law, including, to the extent that any written documents, presentations or other materials are to be provided to any works council, economic and social committee, labor union, association or other employee representative body; provided that the Sellers shall retain control over such information and consultation process and (iv) if required under applicable Law, provide such materials to Buyer and its Affiliates in advance and permit Buyer and its Affiliates a reasonable opportunity to review and comment on such materials before they are presented or provided to the works council, economic and social committee, labor union, association or other employee representative body. Buyer shall reasonably cooperate with the Sellers in connection with the Consultation Obligations, including, upon receiving a written request from the Sellers, providing without unreasonable delay any information regarding Buyer’s post-Closing intentions, plans or proposals with respect to the Acquired Companies and their employees that is reasonably required under applicable Law. The Sellers shall not be responsible for any delay, failure or non-compliance to the extent caused by Buyer’s material failure to provide such information or cooperation. Without limiting the foregoing, and subject in all respects to the terms of this Agreement, from the Put Option Date until the Closing, the Sellers shall, and shall cause the Company and the other Acquired Companies to, use commercially reasonable efforts to ensure that any information, consultation, advice or negotiation process conducted with any works council, economic and social committee, labor union or other employee representative body in connection with the Specified Projects takes into account the Transactions to the extent required under applicable Law.
(e) As a condition to the obligations of Buyer or any of its Affiliates under this Section 8.9, each Seller agrees that it shall, and shall cause its Affiliates and their respective service providers to use commercially reasonable efforts to, provide Buyer, its Affiliates and their respective service providers with access to all information reasonably requested by Buyer and its service providers to allow Buyer to comply with the provisions of this Section 8.9, in each case, to the extent permitted by applicable Law.
(f) The provisions contained in this Section 8.9 shall not (i) be treated as an establishment, amendment or other modification of any Company Benefit Plan or other employee benefit plan, agreement or other arrangement, (ii) limit the right of Buyer to terminate the employment of any employee at any time and for any reason or (iii) create any third party rights, benefits or remedies of any nature whatsoever in any employee of any Acquired Company (or any beneficiaries or dependents thereof) or any other Person that is not a Party.
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8.10 Buyer’s Obligations in Respect of Financing.
(a) Buyer acknowledges and agrees that the Sellers, the Seller Representative, the Company and their respective Affiliates have no responsibility for any financing that Buyer may raise in connection with the Transactions, except as expressly provided herein.
(b) Buyer shall use reasonable best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary to obtain the Financing contemplated by the Financing Commitments at or prior to the Closing Date, including to (i) maintain in effect the Debt Commitment Letter, (ii) negotiate and enter into definitive financing agreements (the “Definitive Debt Documents”) with respect to the Debt Financing on the terms and conditions set forth therein or terms and conditions otherwise not less favorable to Buyer than the terms and conditions (including the “market flex” provisions) contained in the Debt Commitment Letter (as determined by Buyer in its reasonable discretion), (iii) satisfy on a timely basis all conditions applicable to Buyer contained in the Financing Commitments within their control, including the payment of any commitment, engagement, or placement fees required as a condition to the Financing, (iv) consummate the Financing at or prior to the Closing Date and (v) enforce its rights under the Debt Commitment Letter. Buyer acknowledges and agrees that it is not a condition to the Closing under this Agreement, nor to the consummation of the Transactions, for Buyer to obtain the Financing or any Replacement Financing.
(c) Buyer shall provide to the Company copies of all material agreements and other documents, in each case, reasonably requested by the Company related to the Debt Financing, and shall keep the Company reasonably informed on a current basis and in reasonable detail of the status of its efforts to obtain the Debt Financing, including any material developments in respect of the process relating thereto. Without limiting the generality of the foregoing, Buyer shall provide the Company prompt written notice (i) of any expiration or termination of, or any breach, default or violation by any party to the Commitment Letters or definitive agreements related to the Financing of which Buyer becomes aware, (ii) of the receipt of any written notice or other written communication from any Debt Financing Source with respect to any (x) actual or potential breach, default, violation, termination or repudiation by any party to the Commitment Letters or the Definitive Debt Documents or (y) material dispute or disagreement between or among any parties to the Commitment Letters or the Definitive Debt Documents with respect to the obligation to fund the Financing or the amount of the Financing to be funded at the Closing (excluding ordinary course negotiations), and (iii) if at any time for any reason Buyer believes in good faith that it will not be able to obtain all or any portion of the Financing on the terms and conditions contemplated by the Financing Commitments or the Definitive Debt Documents. As soon as reasonably practicable, Buyer shall provide any information reasonably requested by the Company relating to any circumstance referred to in clauses (i), (ii) or (iii) of the immediately preceding sentence.
(d) Prior to the Closing, Buyer shall not (and with respect to the Equity Commitment Letter, shall cause Fund IX VL Holdings not to), without the prior written consent of the Company (not to be unreasonably withheld, conditioned or delayed), agree to, or permit, any amendment, restatement, amendment and restatement, replacement, supplement, or other modification of, or waiver or consent under, the Commitment Letters or other documentation relating to the Financing which would (i) reasonably be expected to (A) adversely affect Buyer’s
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ability to timely consummate the Transactions or (B) make the timely funding of the Financing, or the satisfaction of the conditions to obtaining the Financing less likely to occur in any material respect, (ii) reduce the aggregate amount of the Financing to less than the Required Amount (taking into account any increase to the Equity Financing), (iii) impose new or additional conditions or expand upon (or amend or modify in any manner adverse to the interests of the Company) the conditions precedent to the Financing as set forth in the Commitment Letters in a manner that would reasonably be expected to delay or prevent the Closing, (iv) adversely affect the ability of Buyer to enforce its rights against the other parties to the Debt Financing Commitments, the Fee Letters or any Definitive Debt Document or (v) reasonably be expected to prevent, delay, impede or impair the Closing. Buyer shall have the right from time to time to amend, supplement, replace, substitute, terminate or otherwise modify or waive its rights under the Debt Commitment Letter (including amendments and modifications contemplated by the “flex” provisions), to add and appoint additional arrangers, bookrunners, underwriters, agents, lenders and similar entities, to provide for the assignment and reallocation of a portion of the financing commitments contained therein and to grant customary approval rights to such additional arrangers and other entities in connection with such appointments, so long as such modification does not result in any of the outcomes specified in the immediately preceding sentence. For purposes of this Section 8.10(d), Section 8.11, the definitions of “Debt Commitment Letter,” “Equity Commitment Letter,” “Commitment Letters,” “Debt Financing Commitments,” “Equity Financing Commitment,” “Financing Commitments,” “Debt Financing,” “Equity Financing,” and “Financing” shall include the Financing Commitments or documents related thereto as permitted to be amended, amended and restated, replaced, supplemented, modified, waived or consented to by this Section 8.10(d). Buyer shall promptly deliver to the Company copies of any such amendment, restatement, amendment and restatement, replacement, supplement, modification, waiver or consent. Further, for the avoidance of doubt, if the Financing (or any Replacement Financing) has not been obtained, Buyer shall continue to be obligated to consummate the Transactions subject only to the satisfaction or waiver of the conditions set forth in Sections 9.1 and 9.2.
(e) If any of the Debt Financing or Debt Financing Commitments expire or are terminated or become unavailable prior to the Closing, in whole or in part, for any reason, Buyer shall (i) promptly notify the Company of such expiration, termination, or unavailability and the reasons therefor and (ii) use its reasonable best efforts promptly to arrange for alternative debt financing (“Replacement Financing”) (which, when added with the Equity Financing, shall be sufficient to pay the Required Amount from other debt financing sources and shall not, without the prior consent of the Company, (A) include any conditions to such Replacement Financing that are more onerous than or in addition to the conditions set forth in the Commitment Letters in effect on the Put Option Date or (B) otherwise be on terms and conditions that are materially less favorable to Buyer than the terms and conditions of the Commitment Letters in effect on the Put Option Date) to replace the financing contemplated by such expired, terminated, or unavailable commitments or arrangements. Buyer shall deliver to the Company true, correct and complete copies of all Contracts or other arrangements pursuant to which any alternative source shall have committed to provide any portion of the Replacement Financing (provided that any fee letters in connection therewith may be redacted in a manner consistent with the Fee Letters provided as of the Put Option Date). In the event that Replacement Financing is obtained in accordance with this Section 8.10(e), the definitions of “Debt Commitment Letter,” “Equity Commitment Letter,” “Commitment Letters,” “Debt Financing Commitments,” “Equity Financing Commitment,” “Financing Commitments,” “Debt Financing,” “Equity Financing” and “Financing” shall include
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the commitments in respect of the Replacement Financing or the documents related thereto, as applicable. Notwithstanding the foregoing, (x) nothing in this Section 8.10(e) shall require, and in no event shall the “reasonable best efforts” of Buyer be deemed or construed to require, Buyer to (1) waive any term or condition of this Agreement, (2) pay any fees in excess of those contemplated by the Debt Commitment Letter as in effect on the Put Option Date (taking into account the “market flex” provisions thereof) (whether to secure a waiver of any conditions contained therein or otherwise) or (3) seek or accept any additional equity financing or seek or accept debt financing from any Person that is not acceptable to Buyer in its sole discretion and (y) compliance by Buyer with the provisions of this Section 8.10(e) shall not relieve Buyer of its obligation to consummate the Transactions whether or not the Financing is available.
8.11 Company’s and Ardagh Seller’s Obligations in Respect of Financing.
(a) Subject to Section 8.11(b), prior to the Closing, the Company (and solely with respect to sub-clause (viii) below, the Ardagh Seller) shall use its reasonable best efforts to provide, and shall use reasonable best efforts to cause the Acquired Companies (and solely with respect to sub-clause (viii) below, any Affiliates of the Ardagh Seller) and their respective officers, managers, directors and employees to provide, and shall use its reasonable best efforts to direct its and their respective accountants, legal counsel and other Representatives to provide to Buyer all cooperation that is reasonably requested by Buyer in connection with the Debt Financing (it being understood that, solely for purposes of this Section 8.11, the term “Debt Financing” shall be deemed to include any high yield bonds issued in lieu of any credit facility contemplated by the Debt Commitment Letter), including the following:
(i) causing appropriate members of the Company’s senior management and other Representatives of the Sellers or the Company to participate in a reasonable number of meetings, conference calls, presentations, sessions with prospective Debt Financing Sources and rating agencies or other customary syndication activities at reasonable times and locations to be mutually agreed;
(ii) (A) assisting with the preparation of appropriate and customary materials for a rating agency presentation, a bank information memorandum, offering documents, a lender presentation and other usual and customary marketing and syndication materials required in connection with the Debt Financing and (B) having an officer of the Company execute a customary authorization letter with respect to the bank information memorandum that authorizes distribution of information to prospective lenders and identifies any portion of the information contained therein relating to the Company and each Company Subsidiary that contains material, non-public information within the meaning of federal securities Laws regarding the Company and each Company Subsidiary or their respective securities;
(iii) (A) executing and delivering customary management representation letters to their independent auditors and (B) causing their independent auditors to provide drafts and executed versions of customary auditor comfort letters (including “negative assurance” comfort and change period comfort) with respect to historical financial information regarding the Company and each Company Subsidiary as necessary or customary for any offering or placement of debt securities pursuant to Rule 144A;
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(iv) facilitating the pledging of collateral; provided that no pledge shall be effective until the Closing;
(v) assisting in the preparation of, and executing and delivering, definitive financial documents, including guarantee and collateral documents and customary closing certificates (including a certificate of a financial officer of the Company with respect to solvency of the Company on a consolidated basis; it being understood and agreed that such certificate with respect to solvency shall only be required if the representation and warranty set forth in Section 7.8 is true and correct on and as of the Closing Date after giving effect to the Transactions) and other customary documents as Buyer may reasonably request; provided that no such document, agreement or certificate shall be effective until the Closing;
(vi) cooperating with Buyer to take such corporate or other organizational action, subject to the occurrence of the Closing, as Buyer may reasonably request to permit the consummation of the Debt Financing;
(vii) requesting that the administrative agent or collateral agent under the Existing Credit Agreements provide debt payoff letters in respect thereof, and preparing all notices, certificates, legal opinions and other documentation necessary to facilitate the redemption of the Senior Secured Notes Indentures, in each case, in a timely manner and consistent with Section 8.19; and
(viii) requesting that the administrative agent, collateral agent or trustee under the Ardagh Debt Documents provide lien releases or similar documents with respect to the Ardagh Seller Shares, and prepare all notices, certificates, legal opinions and other documentation necessary to facilitate the release of Liens on the Ardagh Seller Shares, in each case, in a timely manner and as required pursuant to the Ardagh Debt Documents.
(b) Prior to the Closing, the Company shall furnish Buyer (i) at least four Business Days prior to the Closing Date with all documentation and other information required by a Governmental Body with respect to the Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations that is reasonably requested by Buyer at least nine Business Days prior to the Closing Date; and (ii) the Required Information, and such other financial and other pertinent information regarding the Acquired Companies as may be reasonably requested by Buyer to consummate the Debt Financing (it being understood and agreed that the Company shall not be required to provide any information regarding any post-Closing or pro forma cost savings, synergies, capitalization, ownership or other post-Closing pro forma adjustments (or otherwise prepare pro forma financial information or post-Closing financial information)).
(c) Notwithstanding anything in Section 8.11(a) or this Agreement to the contrary, until the Closing occurs, the cooperation requested by Buyer pursuant to Section 8.11(a) shall not (i) unreasonably interfere with or adversely affect the ongoing operations or business of the Acquired Companies, or (ii) require the Blocker or any of the Acquired Companies to (A) pay any commitment or other similar fee, (B) have or incur any liability in connection with the Financing contemplated by the Financing Commitments, including under any agreement or any document related to the Financing that would not be reimbursed at the Closing, (C) enter into the
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Definitive Debt Documents that would be effective prior to the Closing (other than customary authorization letters), (D) take any action that would conflict with, violate or result in a breach of or default under any Organizational Documents of the Company or any of its Affiliates, any Transaction Document or any Law, (E) take any action that would be reasonably likely to subject any director, manager, officer or employee of the Company or any of its Affiliates to any personal liability, (F) provide access to or disclose information that the Company determines in good faith would reasonably be likely to jeopardize any attorney-client privilege of, or conflict with any confidentiality requirements applicable to, the Company or any of its Affiliates, (G) cause any director or manager of the Company or any of its Affiliates to pass resolutions or consents to approve or authorize the execution of the Debt Financing which would be effective prior to the Closing Date or (H) reimburse any expenses or provide any indemnities.
(d) Buyer shall promptly reimburse the Company for all reasonable and documented out-of-pocket costs and expenses incurred by the Blocker or any Acquired Company in connection with the cooperation contemplated by Section 8.11(a), including (i) reasonable attorneys’ fees and (ii) expenses of the Company’s accounting firms engaged to assist in connection with the Debt Financing. Buyer shall indemnify and hold harmless the Blocker and the Acquired Companies, and their respective Representatives, from and against any and all liabilities or losses suffered or incurred by them in connection with the arrangement of the Financing and any information utilized in connection therewith, other than to the extent that any such liabilities or losses result from the bad faith, gross negligence or willful misconduct of any of the Sellers, the Acquired Companies, their respective Affiliates and their respective partners, officers, managers, directors, employees and other Representatives or information provided by or on behalf of the Sellers or the Acquired Companies for use in connection with the Debt Financing.
(e) The Sellers, the Acquired Companies and their respective Affiliates consent to the customary and reasonable use of the Acquired Companies’ logos in connection with any Debt Financing; provided that such use is disclosed to the Sellers in writing prior to such use, such logos are used solely in a manner that is not intended, or reasonably likely, to and does not harm or disparage any of the Sellers, the Acquired Companies and their respective Affiliates or the reputation or goodwill of the Sellers, the Acquired Companies and their respective Affiliates.
(f) Any information provided pursuant to this Section 8.11 shall be subject to the Confidentiality Agreements.
8.12 Tax Matters.
(a) Section 338(g) Elections. Buyer may, in its sole discretion, and may cause its applicable Affiliates to, make timely and effective elections under Section 338(g) of the Code (and any corresponding or similar provisions of state, local or non-U.S. Tax Law) with respect to Buyer’s purchase (or deemed purchase) of the Blocker, the Company and each Subsidiary of the Company. For the avoidance of doubt and notwithstanding anything to the contrary in this Agreement, any Taxes, costs or expenses to the extent arising out of (including any Taxes imposed on the Blocker or any Acquired Company as a result of) any such election shall be borne solely by Buyer and its Affiliates and shall not (i) reduce the Estimated Consideration, Final Consideration or any other amount payable to any Seller under this Agreement, (ii) be taken into account as Leakage, Company Transaction Expenses, Transfer Taxes or otherwise in determining any adjustment to the Estimated Consideration or any other amount payable to any Seller under this Agreement or (iii) give rise to any obligation of any Seller or any of its Affiliates to indemnify, reimburse or otherwise make any payment to Buyer, the Blocker, any Acquired Company or any of their respective Affiliates.
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(b) Transfer Taxes. All Transfer Taxes shall be borne fifty percent (50%) by Buyer, on the one hand, and fifty percent (50%) by the Sellers (whether as Company Transaction Expenses or otherwise), on the other hand. The Sellers shall promptly, and in any event within ten (10) Business Days following written demand therefor, reimburse Buyer for the Sellers’ share of any Transfer Taxes paid by Buyer or any of its Affiliates (except to the extent such Transfer Taxes were taken into account as Company Transaction Expenses). The Parties shall, and shall cause their respective Affiliates to, cooperate to timely prepare and file any Tax Returns or other filings relating to Transfer Taxes, including any claim for exemption or exclusion from the application or imposition of any Transfer Taxes.
(c) Termination of Tax Sharing Agreements. The Company shall, and shall cause the Blocker and each of the Acquired Companies to, terminate, effective no later than the Closing, each Tax sharing, Tax allocation, Tax indemnity, Tax receivable or similar agreement or arrangement (other than this Agreement and the other Transaction Documents) to which the Blocker or any Acquired Company is a party or by which any of them is bound, on the one hand, and to which any Seller or its Affiliates (other than the Blocker or any Acquired Company) is a party or by which any of them is bound, on the other hand, such that none of the Blocker or any Acquired Company shall have any liability or obligation relating to Taxes thereunder from and after the Closing.
(d) Intended Tax Treatment. Except to the extent otherwise required pursuant to a “determination” (within the meaning of Section 1313(a) of the Code or any similar provision of state, local or non-U.S. Law), the Parties and their respective Affiliates shall treat any and all payments made pursuant to Section 3.3 or this Section 8.12 as an adjustment to the Estimated Consideration for all Tax purposes, and no Party shall take any position inconsistent with such treatment on any Tax Return or in any audit, examination or other administrative or judicial proceeding.
(e) French IFU Filings. Prior to the Closing, the Sellers shall cause each Acquired Company organized in France to prepare and duly file with the applicable Taxing Authority each annual Imprimé Fiscal Unique informational filing (Form 2561) (each, an “IFU Form”) that was required to be filed, but was not previously filed, or that requires correction, in respect of any dividend or interest payment made by such Acquired Company in 2021, 2022, 2023, 2024 and 2025, it being understood that, for each relevant calendar year, one IFU Form shall be filed by each such Acquired Company reporting all amounts required to be reported thereon under applicable French Tax Law, including (i) dividends distributed by such Acquired Company outside of a French tax consolidated group during such calendar year and (ii) all payments of interest (other than interest paid to a French bank) made by such Acquired Company during such calendar year. The Sellers shall provide Buyer with (x) a draft of each such IFU Form reasonably in advance of the date of the applicable filing, (y) a reasonable opportunity to review and comment on each such IFU Form (and the Sellers shall, and shall cause the applicable Acquired Companies to, consider in good faith any reasonable comments provided by Buyer) and (z) evidence of each such filing promptly following the submission thereof.
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(f) Tax Cooperation.
(i) From and after the Put Option Date until the earlier of the Closing and the termination of this Agreement in accordance with its terms, if the Company or any of its Subsidiaries receives written notice of any Tax Proceeding reasonably expected to be, individually or in the aggregate, material to the Acquired Companies, taken as a whole, then the Company shall (A) provide reasonably prompt written notice of such Tax Proceeding to Buyer, and, (B) solely with respect to any Tax Proceeding (or the portion thereof) arising from the items set forth in Schedule 8.12(f)(i), (x) provide Buyer the opportunity to participate, at its own cost and expense, in such Tax Proceeding (including through counsel and other advisors of its own choosing), (y) provide Buyer with copies of any material documentation received from, and any material correspondence made with, the applicable Taxing Authority in connection therewith, and allow Buyer to coordinate with the Company with respect to any such correspondence with such Taxing Authority and, upon reasonable advance notice, to attend (including through counsel and other advisors of its own choosing) any meeting or call with such Taxing Authority, and (z) not, and shall cause its Affiliates not to, settle, compromise, resolve, accept, waive, file an appeal in front of the competent Tax court or otherwise make any material decision or determination with respect to such Tax Proceeding (or portion thereof) without the prior written consent of Buyer (such consent not to be unreasonably withheld, conditioned or delayed); provided that, for the avoidance of doubt, if any such Tax Proceeding (or portion thereof) arising from the items set forth in Schedule 8.12(f)(i) cannot be bifurcated under applicable local Law or is not in fact conducted or resolved separately, the rights set forth in clauses (x) through (z) shall apply to the entirety of any such Tax Proceeding.
(ii) Following the Closing, Buyer, each Seller and the Firmoront Blocker Seller shall, and Buyer shall cause the Blocker and the Acquired Companies to, reasonably cooperate with one another, as and to the extent reasonably requested, in connection with the preparation and filing of Tax Returns and any Tax Proceeding. Such cooperation shall include (A) the retention and, upon request, the provision of records and information reasonably relevant to any such Tax Return or Tax Proceeding, (B) making employees available on a mutually convenient basis to provide additional information and explanation of any materials provided hereunder and (C) reasonably cooperating through their respective tax advisors, legal counsel and other professional advisors, where appropriate. Each party shall bear its own costs and expenses incurred in connection with such cooperation, unless otherwise expressly provided in this Agreement.
8.13 R&W Insurance Policy.
(a) At or prior to the Closing, Buyer or any of its Affiliates may, at its election, obtain a buyer-side representations and warranties insurance policy in connection with this Agreement and the Transactions (such policy, an “R&W Insurance Policy”): (i) all premiums, underwriting fees, brokers’ commissions, due diligence fees, taxes and other similar costs and expenses due and payable under such R&W Insurance Policy shall be borne solely by Buyer or
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such Affiliate (including the Company and any of the Company Subsidiaries after the Closing), (ii) such R&W Insurance Policy shall not provide for any “seller retention” (as such phrase is commonly used in the representations and warranties insurance policy industry), such that the full “retention” (as such phrase is commonly used in the representations and warranties insurance policy industry) will be borne solely by Buyer and (iii) Buyer shall cause such R&W Insurance Policy to at all times include an express waiver by the insurer of any rights to bring claims of subrogation (except in the case of Fraud with respect to the making of the Express Representations) against the Sellers, and Buyer shall provide the Seller Representative, reasonably in advance of binding the R&W Insurance Policy, the final version of the R&W Insurance Policy. Buyer acknowledges and agrees that the obtaining of any R&W Insurance Policy is not a condition to the Closing and Buyer shall remain obligated, subject only to the satisfaction or waiver of the conditions set forth in Article IX, to consummate the Transactions, even if an R&W Insurance Policy is not obtained at or prior to the Closing. In addition, Buyer acknowledges and agrees that the obtaining of any R&W Insurance Policy shall not impede or delay the Closing. Buyer, its Affiliates, and their respective Representatives shall not amend, waive or modify (x) the waiver of subrogation right contained in the R&W Insurance Policy or (y) any other provision of the R&W Insurance Policy in a manner materially adverse to the Sellers, in each case, without the express written consent of the Seller Representative. At the request of Buyer, the Blocker, the Acquired Companies and the Sellers shall use commercially reasonable efforts to cooperate with, and make reasonably available (upon reasonable notice and during normal business hours) their respective Representatives to assist with, Buyer (and any Affiliate thereof) in connection with the obtaining, binding and causing the issuance of any R&W Insurance Policy, and the removal of any exclusions thereunder, including by making available due diligence material reasonably requested by Buyer (or an Affiliate thereof); provided that, the Sellers, the Blocker, the Acquired Companies and each of their Affiliates shall not be required to provide due diligence materials where doing so would, upon advice of counsel, (A) cause a violation or breach of or default under any Contract to which the Blocker or any Acquired Company is a party, (B) result in a loss of attorney-client or legal privilege to the Blocker or any Acquired Company, (C) constitute a violation of any applicable Law or (D) cause any competitive harm to any Acquired Company (it being agreed that any such competitive materials shall be made available to the insurers of the R&W Insurance Policy and their Representatives directly by the Blocker or any Acquired Company, as applicable); provided, further, that in any such case, each of the Sellers, the Blocker and the Acquired Companies shall use its commercially reasonable efforts to provide a reasonably detailed description of the information not provided that enables the insurers or their Representatives to evaluate such information without the consequence described in clause (A), (B), (C) or (D). Notwithstanding the foregoing, a breach of the obligation of the Blocker, the Acquired Companies and the Sellers under this Section 8.13 shall not be grounds for Buyer to not consummate the Transactions pursuant to Section 9.2(g) or otherwise.
(b) From the Put Option Date until the earlier of the Closing and the termination of this Agreement, the Sellers and the Company shall, and shall cause the other Acquired Companies and their respective Representatives to, use commercially reasonable efforts to cooperate with Buyer and its Representatives in connection with Buyer’s efforts to remove, narrow or otherwise resolve any exclusion from coverage under, or any heightened conditions to coverage identified by the insurer(s) in connection with, the R&W Insurance Policy, including by (A) furnishing such reasonably available information and documentation regarding the Acquired Companies as Buyer or such insurer(s) may reasonably request (including by making such
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information available in the electronic data room), (B) making appropriate members of management of the Acquired Companies reasonably available to participate in a reasonable number (but no more than three) of underwriting and diligence calls at reasonable times and upon reasonable advance notice, and (C) facilitating such supplemental due diligence as such insurer(s) may reasonably require; provided that (i) nothing in this Section 8.13(b) shall require any Seller or any Acquired Company to furnish any information the disclosure of which would, upon the advice of outside counsel, jeopardize any legal privilege or violate applicable Law or any confidentiality obligation owing to a third party (in which case the Parties shall cooperate in good faith to make alternative arrangements to permit disclosure, including pursuant to customary clean-team or counsel-only arrangements), (ii) each Seller’s and the Acquired Companies’ obligations pursuant to this Section 8.13(b) shall remain in all respects subject to Section 8.1(a), (iii) no Seller or Acquired Company makes any representation or warranty as to, or shall have any liability for, the removal or resolution of any such exclusion or the availability or scope of coverage under the R&W Insurance Policy and (iv) no information provided or disclosed pursuant to this Section 8.13(b) shall be deemed to expand any of the representations or warranties set forth in this Agreement, and no Seller or Acquired Company makes any representation or warranty as to, or shall have any liability for, the accuracy of such information (except in the case of Fraud).
8.14 Company Disclosure Schedules.The Company may, at its option, include in the Company Disclosure Schedules items that are not material in order to avoid any misunderstanding, and such inclusion, or any references to dollar amounts, shall not be deemed to be an acknowledgment or representation that such items are material, to establish any standard of materiality or to define further the meaning of such terms or any other terms defined in Article I (and, in particular, the inclusion of any item in the Company Disclosure Schedules shall not, in and of itself, be a basis for taking such item into account in determining whether there has been a Material Adverse Effect). Information disclosed in any Company Disclosure Schedule shall constitute a disclosure for all purposes under this Agreement solely to the extent it is reasonably apparent on the face of such items that the information is relevant for such other purposes, notwithstanding any reference to a specific section, and all such information shall be deemed to qualify such sections. The disclosure of any matter or item in any Company Disclosure Schedule shall not be deemed to constitute an acknowledgment that any such matter is required to be disclosed.
8.15 Section 280G.To the extent that any “disqualified individual” (within the meaning of Section 280G(c) of the Code and the regulations thereunder) has the right to receive or retain any payments or benefits that, separately or in the aggregate, constitute “parachute payments” (within the meaning of Section 280G(b)(2)(A) of the Code and the regulations thereunder), then the Company will (i) solicit from each such “disqualified individual” a waiver of such disqualified individual’s rights to some or all of such payments or benefits (the “Waived 280G Benefits”) so that any remaining payments or benefits payable to, or retained by, such disqualified individual shall not be deemed to be “excess parachute payments” (within the meaning of Section 280G of the Code and the regulations thereunder), and (ii) with respect to each “disqualified individual” who agrees to the waiver described in clause (i), submit to a vote of holders of the equity interests of the Company entitled to vote on such matters, the right of any such “disqualified individual” to receive the Waived 280G Benefits (the process described in clauses (i) and (ii), the “Cleansing Vote”). Solely in the event Buyer provides to the Company, no less than fifteen (15) Business Days prior to the Closing, a written description (including applicable
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value for purposes of Section 280G of the Code) of any arrangements that have, or will be, entered into between Buyer and its Affiliates, on the one hand, and a disqualified individual, on the other hand (“Buyer Arrangements”), the Company shall include such Buyer Arrangements in the Cleansing Vote. The Parties acknowledge that the Company cannot compel any “disqualified individual” to waive any existing rights under a contract with the Company or any of the Company Subsidiaries and the Company shall not be deemed in breach of this Section 8.15 with respect to any disqualified individual who refuses to waive any such right. The Company shall provide Buyer and its counsel with a copy of calculations, the waiver agreement, the disclosure statement and the equityholder consent contemplated by this Section 8.15 no less than ten Business Days prior to the Closing or the delivery of any documentation to a “disqualified individual” or an equityholder, and, if Buyer provides comments within five Business Days of receiving such documentation, the Company shall in good faith incorporate any reasonable changes requested by Buyer or its counsel. Prior to the Closing, the Company shall provide to Buyer any executed waivers and consents received in connection with the vote of the equityholders and any documentation reasonably requested by Buyer which demonstrates that such vote of the equityholders was conducted in a manner which satisfies Section 280G(b)(5)(B) of the Code and the regulations thereunder.
8.16 Acknowledgments by Buyer.
(a) Buyer acknowledges, on its own behalf and on behalf of each of its Affiliates, that it has conducted an independent investigation and verification of the business, financial condition, results of operations, assets, liabilities, properties, contracts and prospects of the Blocker and the Acquired Companies, and, in making its determination to proceed with the Transactions, Buyer has relied on the results of its own independent investigation and verification and on the Express Representations. Without limiting the generality of the foregoing, Buyer acknowledges and agrees, on each of its own behalf and on behalf of its Affiliates, that neither the Blocker, the Acquired Companies, nor any other Person (including the Sellers), has made, is making or is authorized to make, any warranty or representation (whether in written, electronic or oral form), express or implied, as to (i) the accuracy or completeness of any information or (ii) the quality, merchantability, fitness for a particular purpose, or condition of the Blocker, the Acquired Companies’ business, operations, assets, liabilities, prospects or any portion thereof, except, in each case, solely to the extent expressly set forth in the Express Representations.
(b) For the avoidance of doubt, nothing in this Section 8.16 shall limit (i) claims for Fraud, (ii) claims under the R&W Insurance Policy or (iii) any Party’s rights or remedies under this Agreement (including in respect of the Express Representations) or any other Transaction Document.
(c) Subject to Section 8.16(b), Buyer acknowledges and agrees, on each of its own behalf and on behalf of its Affiliates, that the covenants and agreements contained in this Section 8.16 (i) require performance after the Closing to the maximum extent permitted by applicable Law and will survive the Closing until the expiration of the applicable statute of limitations; and (ii) are an integral part of the Transactions and that, without these agreements set forth in this Section 8.16, the Blocker and the Acquired Companies would not enter into this Agreement.
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8.17 Pre-Closing Sharing of Data.The Parties acknowledge and agree that the Personal Information disclosed or made available by the Sellers, the Blocker or the Acquired Companies to Buyer in connection with this Agreement (the “Transaction Personal Information”) is necessary for the purposes of enabling Buyer to determine if Buyer shall proceed with the Transactions. Buyer shall, at all times, comply with Privacy Laws and not use, disclose or otherwise Process the Transaction Personal Information for any purposes other than those related to the performance of this Agreement or the consummation of the Transactions, or any other similar purposes or as required or permitted by Law. Buyer shall take reasonable and appropriate steps to protect the Transaction Personal Information by applying a standard of care at least as protective of such information as Buyer’s current policies, practices, or procedures applicable to Personal Information, but in any event by applying at least a reasonable standard of care. If the Transactions do not proceed, Buyer shall return to the Acquired Companies or, at the Acquired Companies’ request, securely destroy the Transaction Personal Information within 60 calendar days and upon the Seller Representative’s written request, provide written confirmation of the destruction of the Transaction Personal Information.
8.18 Litigation Support.In the event that and for so long as the Sellers or any of their Affiliates or Buyer or any of its Affiliates is prosecuting, contesting or defending any Legal Proceeding or claim by or against a third party or otherwise for legal compliance in connection with (a) the Transactions or the transactions contemplated under any other Transaction Documents or (b) any fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction on or prior to the Closing Date, Buyer and the Sellers, as applicable, shall, and shall cause their respective Affiliates (and its and their officers and employees) to, reasonably cooperate in good faith with Buyer and the Sellers, as applicable, and its counsel in such prosecution, contest or defense, including making reasonably available its personnel, and providing such testimony and access to its books and records as shall be reasonably necessary in connection with such prosecution, contest or defense upon reasonable advance notice and during normal business hours, all at the sole cost and expense of the requesting party; provided that such cooperation does not interfere with normal business operations; provided, further, that each party shall treat all such information as confidential and hereby agrees not to use such information for any purpose other than in connection with such Legal Proceeding, other investigation, charge, claim or demand by a third party and that to the extent production of such information is required in such Legal Proceeding, it is done on an attorneys’ eyes-only basis; and provided, further, that no party shall be obliged to disclose or provide access to any documents, records or information subject to attorney-client privilege or attorney work-product protection. Requests for support must be made with reasonable notice and be limited to regular business hours. Notwithstanding the foregoing, Buyer and the Sellers acknowledge and agree that this Section 8.18 shall not apply with respect to any Legal Proceeding with respect to which Buyer or its Affiliates are adverse to the Sellers or their respective Affiliates.
8.19 Treatment of Senior Secured Notes Indentures.
(a) Prior to the Closing, the Company shall prepare, execute and timely deliver (or cause to be delivered), in each case, in form reasonably satisfactory to Buyer: (i) all officer’s certificates, opinions of counsel, notices/requests to the trustees or collateral agents under the Senior Secured Notes Indentures, notices of conditional redemption or satisfaction and discharge and any other documentation required under the Senior Secured Notes Indentures to evidence the
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cancellation of the obligations arising thereunder (in each case within the applicable time periods set forth in the applicable Senior Secured Notes Indenture) and (ii) all other documentation (if any) as reasonably required by the trustee or collateral agent under the Senior Secured Notes Indentures, in each case, in order to effect the redemption or satisfaction and discharge of the Senior Secured Notes Indentures; provided that the Company shall provide to Buyer for Buyer’s review drafts of such notices and other documents no later than five Business Days prior to the date such documents are required to be delivered in order to effect a redemption or satisfaction and discharge of the applicable Senior Secured Notes Indentures as required by this Agreement (or, in each case, such shorter period as Buyer may agree); provided, further, that if Buyer does not deliver written comments on such drafts at least two Business Days prior to the date such documents are required to be delivered, such documents shall be deemed accepted by Buyer in the form provided by the Company. Notwithstanding the foregoing, the Company shall not be required to give a notice of redemption that is not conditional on the Closing.
(b) Buyer shall, at or prior to the Closing, deposit or cause to be deposited with the applicable trustee(s) under the Senior Secured Notes Indentures, or otherwise provide or cause to be provided to the Company, funds sufficient to pay in full the applicable redemption price of the notes issued under the Senior Secured Notes Indentures (including all principal, accrued and unpaid interest, and any premium, make-whole amount, and trustee fees and expenses) and to effect the redemption and/or satisfaction and discharge of the Senior Secured Notes Indentures.
8.20 Title Insurance and Survey; Environmental Site Assessments.
(a) For each parcel of Owned Real Property located within the U.S., Buyer desires to obtain, at its sole cost and expense, an ALTA 2021 Form owner’s title insurance policy to be issued by a title company selected by Buyer in its discretion (the “Title Company”), in each case: (A) having an effective date as of the Closing Date, (B) in amount, form and substance reasonably satisfactory to Buyer, (C) insuring that the applicable Acquired Company has good and marketable fee simple title to the Owned Real Property, free and clear of all Liens except Permitted Liens, and (D) including such endorsements as Buyer may request (which may include endorsements providing for extended coverage over the general title exceptions, zoning 3.1 endorsements (including parking and loading docks), contiguity endorsements, access endorsements, endorsements insuring compliance with any covenants, conditions and restrictions of record, tax parcel or tax number endorsements and non-imputation) (collectively, the “Title Policies”). In order to obtain the Title Policies, the Sellers (or the entity requested by the Title Company and reasonably acceptable to the Sellers) shall use commercially reasonable efforts to deliver the following documents to the Title Company in customary form and substance reasonably acceptable to the Title Company prior to the Closing: (i) an owner’s affidavit and gap indemnity from the Acquired Company owning title to the Owned Real Property; (ii) No Change to Survey Affidavit from the Acquired Company owning title to the Owned Real Property, if applicable; and (iii) financial information and information regarding ongoing construction, if applicable. Buyer shall have the right to have a surveyor survey the Owned Real Property prior to the Closing at Buyer’s sole cost and expense, following at least five Business Days’ prior written notice to the Sellers and the Sellers shall have a right to have a representative present when such surveyor is conducting such surveys, at the Sellers’ discretion. Buyer shall provide evidence to the Sellers of the surveyor’s liability insurance, in form and amount reasonably acceptable to the Sellers, prior to entry to the Owned Real Property.
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(b) From the Put Option Date until six-months following the Put Option Date, subject to Section 8.1, (i) Buyer shall have the right, subject to the terms of any existing Contract to which any Seller or any Acquired Company is a party, at its sole cost and expense, as promptly as practicable, and upon reasonable written notice to the Company, to conduct a Phase I environmental site assessment (each, a “Phase I Assessment”) in accordance with ASTM International Standard E1527-21 (or any successor standard) to the extent feasible in the relevant jurisdictions of the facilities set forth on Schedule 8.20(b) of the Company Disclosure Schedules (the “Designated Facilities”) and (ii) the Company shall, and shall cause its Subsidiaries to, use commercially reasonable efforts to cooperate with Buyer, its Affiliates or Representatives in connection with the Phase I Assessments. The Phase I Assessments shall be limited to non-intrusive activities, and nothing in this Section 8.20(b) shall permit Buyer, its Affiliates or Representatives to conduct any invasive or subsurface sampling, testing or investigation (including any Phase II environmental site assessment). Any Effect or recognized environmental condition newly obtained or discovered from any Phase I Assessment conducted in accordance with this Section 8.20(b) and compliance with this Section 8.20(b) (other than any Effect or recognized environmental condition that was previously disclosed in the electronic data room or on the Company Disclosure Schedules) shall, in each case, be excluded for the purposes of determining the satisfaction of the conditions set forth in Sections 9.1(a), 9.2(a) or 9.2(f) or give rise to any right to termination under this Agreement.
(c) The Company’s performance of its obligations with respect to this covenant shall be deemed to have been satisfied as of the Closing so long as the Company has not materially breached its obligations under this Section 8.20.
8.21 Project Vulcan Transaction.
(a) Buyer shall, and shall cause each of its Affiliates party to any Project Vulcan Transaction Document to, (i) perform and comply in all respects with all covenants, agreements and obligations applicable to it thereunder and (ii) use reasonable best efforts to take, or cause to be taken, all actions necessary, proper or advisable to cause the Project Vulcan Closing to occur as promptly as practicable and, in any event, substantially concurrently with (and in no event later than) the Closing, subject only to the satisfaction or waiver of the conditions set forth in Article IX and in the Project Vulcan Transaction Agreement.
(b) Buyer shall not, and shall cause its Affiliates not to, amend, restate, supplement or otherwise modify, terminate, assign or waive any right or condition of or under the Project Vulcan Transaction Agreement, in each case, in a manner that would reasonably be expected to prevent, materially impair or materially delay (or has so prevented or materially impaired or materially delayed) the Closing, or enter into any Contract which would otherwise have the same effect as the foregoing, in each case, without the prior written consent of the Seller Representative (which shall not be unreasonably withheld, conditioned or delayed); provided that Buyer and its Affiliates may, without such consent, waive any condition to the obligations of any party under the Project Vulcan Transaction Agreement if and to the extent such waiver facilitates the consummation of the Project Vulcan Closing and does not reduce the amount, or adversely change the form, timing or conditionality, of the equity investment or business contribution contemplated thereby. Buyer shall, and shall cause its Affiliates to, maintain the Project Vulcan Transaction Documents in full force and use reasonable best efforts to effect and enforce its and
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their respective rights thereunder, including, in the event of any breach, threatened breach or repudiation by any party thereto, by promptly commencing and diligently pursuing all actions and proceedings (including seeking specific performance and injunctive relief) necessary to cause the Project Vulcan Closing to occur in accordance with this Section 8.21. Notwithstanding the foregoing, Buyer and its Affiliates shall have the right to terminate the Project Vulcan Transaction Agreement in accordance with its terms at any time following the valid termination of this Agreement or if Buyer determines in good faith that the conditions to the Project Vulcan Closing are incapable of being satisfied on or prior to the Termination Date and provides written notice of such event at least five Business Days prior to such termination.
(c) Buyer shall (i) deliver to the Company true, correct and complete copies of the Project Vulcan Transaction Agreement and the Equity Commitment Letter and of each amendment, supplement, modification, consent or waiver thereto promptly (and in any event within two (2) Business Days) following execution or delivery thereof (which may be redacted to remove, upon advice of Buyer’s outside antitrust counsel, competitively sensitive information); (ii) give the Company prompt (and in any event within two (2) Business Days) written notice of the termination of the Project Vulcan Transaction Agreement and any written notice delivered or received by Buyer or any of its Affiliates of any known breach, threatened breach or any written allegation of breach thereof or repudiation thereunder that would reasonably be expected to prevent, materially impair or materially delay the Project Vulcan Closing; and (iii) otherwise keep the Company reasonably informed of the status of the Project Vulcan Transactions upon the Company’s reasonable written request.
8.22 Third-Party Consents.The Sellers, the Blocker and the Company shall, and the Company shall cause the Company Subsidiaries to, use commercially reasonable efforts to seek to obtain the consents, filings, notices, approvals, or waivers with respect to Material Contracts set forth on Schedule 8.22 of the Company Disclosure Schedules (and, upon the reasonable request of the Company, Buyer shall, and shall cause its Affiliates to, reasonably cooperate with the Company in connection therewith), and shall keep Buyer reasonably informed of the status thereof; provided that (i) obtaining any such consents, filings, notices, approvals, or waivers shall not be deemed to be conditions to the obligations of the Parties to consummate the Transactions and (ii) none of the Sellers, the Blocker or any Acquired Company shall be required to pay any fees (other than in respect of the SCF Contracts set forth on Schedule 8.22 of the Company Disclosure Schedules), make any concessions, amend any Material Contract or otherwise commence proceedings against any counterparty to any Material Contract in connection with such party’s obligations pursuant to this Section 8.22.
8.23 Specified Contract. Prior to the Closing, the Company shall use best efforts to cause Trivium Packaging Netherlands B.V. to, at its option (and in its sole discretion), take the actions set forth on Schedule 8.23(a) of the Company Disclosure Schedules, and the Company shall take the actions set forth on Schedule 8.23(b) of the Company Disclosure Schedules.
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8.24 Related Party Arrangements; Intercompany Accounts.
(a) Effective as of the Closing, the Sellers shall cause to be terminated and cancelled, without any cost, liability or continuing obligation to Buyer, the Blocker or any Acquired Company, all Related Party Arrangements (including any management, monitoring, advisory or similar fee arrangements and any shared-services arrangements) between any Acquired Company or the Blocker, on the one hand, and any Seller or any of their respective Affiliates (other than the Acquired Companies and the Blocker), on the other hand, in each case as set forth on Schedule 8.24 of the Company Disclosure Schedules.
(b) Prior to the Closing, the Intercompany Accounts, other than those set forth on Schedule 8.24(b) of the Company Disclosure Schedules (the “Surviving Intercompany Accounts”), shall be settled in full in cash or otherwise eliminated, effective no later than immediately prior to the Closing; provided that (i) no such Intercompany Accounts owed to the Blocker or any Acquired Company shall be waived, forgiven, discounted or released, (ii) all Taxes and other liabilities incurred by the Blocker or any Acquired Company in connection with such settlement or elimination shall be for the account of the Sellers and, to the extent not reimbursed in cash prior to the Closing, shall constitute Leakage, and (iii) any amounts paid by the Blocker or any Acquired Company to any Seller or any of its Affiliates pursuant to this Section 8.24(b) shall constitute Permitted Leakage only to the extent of the amount of the applicable Intercompany Account set forth on Schedule 6.23(c) of the Company Disclosure Schedules (as increased or decreased in the Ordinary Course of Business through the Closing).
8.25 Redemption; Voting Agreements.
(a) Buyer and the Sellers shall negotiate in good faith and use their respective reasonable best efforts to agree the form of the Redemption Agreement as promptly as practicable following the Put Option Date and in any event no later than ten (10) Business Days prior to the Closing Date. The Sellers shall deliver to Buyer drafts of all resolutions, notarial deeds, notices, consents and other documents to be executed in connection with the Redemption reasonably in advance of their execution and shall consider in good faith Buyer’s reasonable comments thereon.
(b) The Sellers shall, at the Sellers’ sole cost and expense, cause the Redemption to be consummated contemporaneously with the Closing in accordance with the Redemption Agreement, including by exercising, or causing their Affiliates to exercise, any call, purchase or transfer rights under the Voting Agreements and by delivering, or causing to be delivered, all consents, waivers and approvals required under the Voting Agreements or otherwise in connection with the Redemption, such that, immediately following the Closing, neither the Firmoront Blocker Seller nor any of its Affiliates (other than Buyer and its Subsidiaries) holds any Equity Securities of, or any right to acquire any Equity Securities of, the Blocker or any Acquired Company. Effective upon the consummation of the Redemption, the Sellers shall cause each Voting Agreement (and each proxy and power of attorney granted thereunder) to be terminated without any cost, Tax, liability or continuing obligation to Buyer, the Blocker or any Acquired Company.
8.26 Specified Projects. Prior to the Closing, the Acquired Companies may continue to implement, carry out and complete the Scheduled Specified Projects in accordance with the scope, timeline and Specified Project Budget set forth on Schedule 1.1(g) of the Company Disclosure Schedules and Schedule 6.26(a) of the Company Disclosure Schedules. The Company shall keep Buyer reasonably informed of the status of the Specified Projects, including, to the extent requested in writing by Buyer, monthly updates on the Specified Project Costs as compared to the Specified Project Budget. The Acquired Companies may pay or incur Specified Project
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Costs up to the Specified Project Cap without the consent of Buyer. If the Company reasonably determines that the aggregate Specified Project Costs will exceed the Specified Project Cap, the Company shall promptly (and in all events, prior to paying or incurring Specified Project Costs in excess of the Specified Project Cap) deliver to Buyer a written request for Buyer’s consent (not to be unreasonably withheld, conditioned or delayed) to the Acquired Companies continuing to implement the applicable Specified Project and paying or incurring Specified Project Costs in excess of the Specified Project Cap, which request shall set forth in reasonable detail the Company’s then-current good faith estimate of the aggregate Specified Project Costs and the reasons for the anticipated excess; provided that Buyer shall be deemed to have consented to such request if Buyer does not object in writing within five (5) Business Days from the date on which such request is delivered to Buyer. If Buyer objects in writing to a request delivered pursuant to this Section 8.26, the Company may, in its sole discretion, elect either (a) to continue to implement any or all of the Scheduled Specified Projects, in which case the Specified Project Costs in excess of the Specified Project Cap paid or incurred following such objection shall constitute Unapproved Specified Project Expenses, or (b) to suspend, wind down or terminate any or all of the Scheduled Specified Projects, in whole or in part, in which case (i) no Specified Project Termination Costs shall constitute Unapproved Specified Project Expenses or Leakage or be taken into account in determining whether the Specified Project Cap has been exceeded and (ii) no such suspension, wind-down or termination, and no failure to complete any Scheduled Specified Project or to realize any anticipated savings or other benefits thereof, shall constitute a breach of this Agreement; provided that the Company shall, and shall cause the other Acquired Companies to, use commercially reasonable efforts to minimize the Specified Project Termination Costs in connection with any such suspension, wind-down or termination contemplated in clause (b).
8.27 Releases. The Company (and, with respect to the individuals set forth on Schedule 8.27(c), the Exal Seller) shall use commercially reasonable efforts to obtain releases, in form and substance reasonably acceptable to Buyer, duly executed by the Company and each individual set forth on Schedule 8.27(a), Schedule 8.27(b) and Schedule 8.27(c) of the Company Disclosure Schedules; provided that with respect to the individuals listed in Schedule 8.27(b) and Schedule 8.27(c) of the Company Disclosure Schedules, the Company and the Exal Seller (as applicable) shall be deemed to have satisfied the efforts standard of this Section 8.27 if the Company or the Exal Seller (as applicable) delivers a form release to each such individual, requests each such individual’s execution prior to the Closing and delivers any executed copies thereof to Buyer at or prior to the Closing.
8.28 Buyer Joinder. Buyer shall cause MIHBV to execute and deliver to the Sellers, only after MIHBV becomes a Subsidiary of Buyer and immediately prior to the Closing, a deed of adherence in the form reasonably acceptable to Buyer and the Sellers (the “Buyer Joinder”), pursuant to which MIHBV shall accede to this Agreement as a Buyer with effect from the date of such Buyer Joinder. Upon such accession, (a) all references in this Agreement to “Buyer” shall be read as references to Silgan Metal Packaging LLC and MIHBV, acting jointly and severally, (b) MIHBV shall be deemed to make the representations and warranties set forth in Article VII as of the date of the Buyer Joinder and as of the Closing Date, mutatis mutandis, and (c) MIHBV shall acquire the Shares and perform the obligations of Buyer at Closing, with Silgan Metal Packaging LLC remaining liable as principal obligor for the due and punctual performance of all obligations of Buyer under this Agreement. The Sellers hereby irrevocably consent to such accession, which shall not constitute an assignment or amendment requiring consent under Section 11.6, and shall execute such counterpart of the Buyer Joinder as MIHBV may reasonably request.
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ARTICLE IX
CONDITIONS TO CLOSING
9.1 Conditions Precedent to Obligations of Buyer, the Company and the Sellers.The respective obligations of Buyer, the Sellers and the Company to consummate the Transactions are subject to the satisfaction, on or prior to the Closing, of each of the following conditions:
(a) There shall not be in effect any Order by a Governmental Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the Transactions;
(b) The waiting period applicable to the Transactions under the HSR Act shall have expired or early termination, if available, shall have been granted and any other approvals, clearances or expirations of waiting periods applicable to the Transactions under the Antitrust Laws or the Foreign Investment Laws set forth on Schedule 8.3(a) of the Company Disclosure Schedules shall have been obtained; and
(c) All of the conditions to closing set forth in the Project Vulcan Transaction Agreement shall have been satisfied or waived (other than (i) any condition thereunder requiring that the conditions set forth in this Agreement shall have been satisfied or waived and (ii) any condition that by its terms is to be satisfied at the Project Vulcan Closing, but subject to each such condition being capable of being satisfied as of the Closing).
9.2 Conditions Precedent to Obligations of Buyer.
The obligation of Buyer to consummate the Transactions is subject to the satisfaction, on or prior to the Closing, of each of the following conditions (any or all of which may be waived by Buyer in whole or in part to the extent permitted by applicable Law):
(a) The representations and warranties regarding the Sellers set forth in Article IV, the representations and warranties regarding the Blocker set forth in Article V and the representations and warranties regarding the Acquired Companies set forth in Article VI (in each case, other than the Seller Fundamental Representations, the Blocker Fundamental Representations and the Company Fundamental Representations) shall be true and correct (without giving effect to any “materiality”, “Material Adverse Effect” or similar qualifiers contained in any of such representations and warranties) as of the Put Option Date and as of the Closing Date as if made on and as of both such dates (except to the extent that any such representation or warranty, by its terms, is expressly limited to a specific date, in which case, as of such specific date), except where the failure of such representations and warranties to be so true and correct does not have and would not have a Material Adverse Effect as of the Closing;
(b) The Seller Fundamental Representations shall be true and correct in all material respects, except with respect to the representations and warranties set forth in Section 4.6, which shall be true and correct in all respects, in each case for the Seller Fundamental Representations, as of the Put Option Date and as of the Closing Date as if made on and as of both such dates (except to the extent that any such representation or warranty, by its terms, is expressly limited to a specific date, in which case, as of such specific date);
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(c) The Blocker Fundamental Representations shall be true and correct in all material respects, except with respect to the representations and warranties set forth in (i) Section 5.3(a), which shall be true and correct in all respects, except any inaccuracies that are de minimis and (ii) Section 5.10, which shall be true and correct in all respects, in each case for the Blocker Fundamental Representations, as of the Put Option Date and as of the Closing Date as if made on and as of both such dates (except to the extent that any such representation or warranty, by its terms, is expressly limited to a specific date, in which case, as of such specific date);
(d) The Company Fundamental Representations shall be true and correct in all material respects, except with respect to the representations and warranties set forth in (i) Section 6.4(a) and the first sentence of Section 6.5(a), which shall be true and correct in all respects, except any inaccuracies that are de minimis and (ii) Section 6.22, which shall be true and correct in all respects, in each case for the Company Fundamental Representations, as of the Put Option Date and as of the Closing Date as if made on and as of both such dates (except to the extent that any such representation or warranty, by its terms, is expressly limited to a specific date, in which case, as of such specific date);
(e) The Redemption shall contemporaneously be consummated in accordance with the terms of the Redemption Agreement and Section 8.25;
(f) No Material Adverse Effect shall have occurred since the Put Option Date and remains ongoing;
(g) Except as otherwise provided in Section 8.13 hereof, the Sellers, the Blocker and the Company shall have performed and complied in all material respects with all obligations and agreements required by this Agreement to be performed or complied with by such Person on or prior to the Closing.
If the Closing occurs, all closing conditions set forth in this Section 9.2 which have not been fully satisfied as of the Closing shall be deemed to have been fully waived. Notwithstanding anything to the contrary in this Agreement, the failure to deliver the certificate described in Section 2.3(a)(viii) shall not constitute a breach of this Agreement or a failure of any condition set forth in Article IX or give rise to any right to terminate this Agreement or to delay the Closing.
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9.3 Conditions Precedent to Obligations of the Sellers, the Blocker and the Company.The obligations of the Sellers, the Blocker and the Company to consummate the Transactions are subject to the satisfaction, on or prior to the Closing, of each of the following conditions (any or all of which may be waived by the Seller Representative in whole or in part to the extent permitted by applicable Law):
(a) The representations and warranties of Buyer set forth in Article VII (other than the Buyer Fundamental Representations) shall be true and correct (without giving effect to any “materiality”, “material adverse effect”, or similar qualifiers contained in any of such representations and warranties) as of the Put Option Date and as of the Closing Date as if made on and as of both such dates (except to the extent that any such representation or warranty, by its terms, is expressly limited to a specific date, in which case, as of such specific date), except where the failure of such representations and warranties to be so true and correct would not (i) have a material adverse effect on the ability of Buyer to perform its obligations under this Agreement or (ii) otherwise prevent, materially impair or materially delay the consummation of the Transactions;
(b) The Buyer Fundamental Representations shall be true and correct in all material respects, as of the Put Option Date and as of the Closing Date as if made on and as of both such dates (except to the extent that any such representation or warranty, by its terms, is expressly limited to a specific date, in which case, as of such specific date); and
(c) Buyer shall have performed and complied in all material respects with all obligations and agreements required by this Agreement to be performed or complied with by Buyer on or prior to the Closing.
9.4 Frustration of Closing Conditions.None of the Sellers, the Blocker, the Company or Buyer may rely, either as a basis for not consummating the Transactions or for terminating this Agreement and abandoning the Transactions, on the failure of any condition set forth in Sections 9.1, 9.2, or 9.3, as the case may be, to be satisfied if such failure was caused by any breach of a covenant, agreement, representation, or warranty of this Agreement by such Party (including any Buyer Related Party in the case of Buyer).
ARTICLE X
TERMINATION
10.1 Termination of Agreement.This Agreement may be terminated prior to the Closing as follows:
(a) by mutual written consent of the Company and Buyer;
(b) by the Company or Buyer, by written notice to the other Party, if:
(i) the Closing has not occurred by the close of business on or before October 14, 2027 (the “Initial Termination Date”); provided that if the conditions set forth in Section 9.1 shall not have been satisfied by the Initial Termination Date, but all other conditions to the Closing (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or waiver of those conditions at such time) have been satisfied or validly waived, then the Initial Termination Date shall be automatically extended to April 12, 2028 (the “Extended Termination Date” and together with the Initial Termination Date, as applicable, the “Termination Date”); provided, further, that the right to terminate this Agreement pursuant to this Section 10.1(b)(i) shall not be available to (A) the Company if any of the Sellers, the Blocker or the Company is in breach in any material respect of any of their respective obligations hereunder and such breach has resulted in the Closing not having been effected as of the Termination Date, or (B) Buyer if Buyer is in breach in any material respect of any of its obligations hereunder and such breach has resulted in the Closing not having been effected as of the Termination Date; or
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(ii) there shall be in effect a final non-appealable Order of a Governmental Body of competent jurisdiction restraining, enjoining or otherwise prohibiting the consummation of the Transactions; provided, however, that the right to terminate this Agreement under this Section 10.1(b)(ii) shall not be available to a Party if such Order was primarily due to the failure of such Party to perform any of its obligations under this Agreement;
(c) by the Company, by written notice to Buyer, if there shall have been a breach by Buyer of any of its representations, warranties, covenants or agreements contained in this Agreement, which breach would result in the failure to satisfy one or more of the conditions set forth in Section 9.3 and in any such case such breach shall be incapable of being cured or, if capable of being cured, shall not have been cured prior to the earlier of (i) thirty (30) Business Days after providing written notice of such breach to Buyer and (ii) the applicable Termination Date; provided that the Company shall not have the right to terminate this Agreement pursuant to this Section 10.1(c) if the Sellers, the Blocker or the Company are then in breach of this Agreement and such breach would result in the failure of any of the conditions set forth in Section 9.1 or Section 9.2;
(d) by the Company, by written notice to Buyer, if (i) all of the conditions in Sections 9.1 and 9.2 have been satisfied or waived (other than those that by their nature are to be satisfied at the Closing), (ii) the Sellers have confirmed by written notice to Buyer that the Sellers, the Blocker and the Company are ready, willing, and able to consummate the Transactions, and (iii) Buyer fails to consummate the Transactions within two (2) Business Days following the date the Closing is required to occur in accordance with Section 2.2;
(e) by Buyer, by written notice to the Company, if there shall have been a breach by the Sellers, the Blocker or the Company of any of their respective representations, warranties, covenants or agreements contained in this Agreement, which breach would result in the failure to satisfy one or more of the conditions set forth in Section 9.2, and in any such case such breach shall be incapable of being cured or, if capable of being cured, shall not have been cured prior to the earlier of (i) thirty (30) Business Days after providing written notice of such breach to the Company and (ii) the applicable Termination Date; provided that Buyer shall not have the right to terminate this Agreement pursuant to this Section 10.1(e) if Buyer is then in breach of this Agreement and such breach would result in the failure of any of the conditions set forth in Section 9.1 or Section 9.3; or
(f) by Buyer or the Company, by written notice to the other Party, if the Project Vulcan Transaction Agreement shall have been validly terminated in accordance with its terms.
In the event of any termination by any Party pursuant to Section 10.1 hereof, written notice thereof shall forthwith be given to the other Party or Parties, which written notice shall specify the provision or provisions hereof pursuant to which such termination is being effected, and this Agreement shall terminate (subject to the provisions of Section 10.2), and the Transactions shall be abandoned, without further action by any Party. Notwithstanding anything else contained in this Agreement, the right to terminate this Agreement under Section 10.1 shall not be available to a Party if such Party is then in material breach of its obligations hereunder and such breach has been the primary cause of the failure to satisfy any condition to the obligations of the Parties hereunder.
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10.2 Effect of Termination. In the event that this Agreement is validly terminated in accordance with Section 10.1, this Agreement shall immediately become null and void and the Parties shall be relieved of their duties and obligations arising under this Agreement after the date of such termination and such termination shall be without liability to any Party; provided that (a) no such termination shall relieve any Party from liability for any Fraud or any Willful Breach prior to the effective date of termination, as applicable, and the damages recoverable by the non-breaching party shall include all attorneys’ fees reasonably incurred by such party in connection with the Transactions, in each case, as determined by a final, non-appealable Order or judgment of a court of competent jurisdiction or a written settlement agreement entered into between the Parties; provided that (i) in no event, other than in the case of Fraud, shall the aggregate liability of Buyer for any breach of this Agreement (including Willful Breach) prior to the Closing exceed an amount equal to $100,000,000 plus the Company Enforcement Expenses (if applicable and subject to the Enforcement Cap) and any amounts payable under Section 8.11(d) (such amount, the “Buyer Damages Cap”), and (ii) in no event, other than in the case of Fraud, shall the aggregate liability of the Company, the Blocker and the Sellers for any breach of this Agreement (including Willful Breach) prior to the Closing exceed an amount equal to $100,000,000 plus the Buyer Enforcement Expenses (if applicable and subject to the Enforcement Cap) (such amount, the “Seller Damages Cap”), and (b) the Confidentiality Agreements and the provisions of Section 8.5, Section 8.7, this Section 10.2, Section 10.3 and Article XI (and any related definitional provisions set forth in Article I) shall survive any such termination and remain valid and binding obligations of each of the Parties. In no event shall the Sellers, the Company, the Blocker or any other Persons be entitled to receive (I) both (x) the applicable Buyer Termination Fee and (y) monetary damages in respect of any breach of this Agreement by Buyer (subject to the Buyer Damages Cap) or (II) both the Buyer Voyage Termination Fee and the Buyer Vulcan Termination Fee.
10.3 Fees and Expenses Following Termination.
(a) If this Agreement is terminated:
(i) (A) by the Company pursuant to Section 10.1(c) or Section 10.1(d) or (B) by the Company or Buyer pursuant to Section 10.1(b) or Section 10.1(f) if at the time of, or prior to, such termination, the Company would have been entitled to terminate this Agreement pursuant to Section 10.1(c) or Section 10.1(d), then Buyer shall pay, or cause to be paid, to the Company an amount equal to $40,000,000 (such payment, the “Buyer Voyage Termination Fee”); or
(ii) (A) by Buyer or the Company pursuant to Section 10.1(f), other than where, at the time the Project Vulcan Transaction Agreement was terminated, any condition set forth in Section 9.1(a) or Section 9.1(b) was not satisfied or waived and is incapable of being satisfied on or prior to the Termination Date, or (B) by Buyer or the Company pursuant to Section 10.1(b)(i) if, and only if, at such time, (x) the condition set forth in Section 9.1(c) has not been satisfied and (y) each of the conditions set forth in Section 9.1
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and Section 9.2 has been satisfied or waived or remains capable of being satisfied on or prior to the Termination Date (other than Section 9.1(c) and those conditions that by their nature are to be satisfied at the Closing), then, subject to the terms of the final paragraph of this Section 10.3(a), Buyer shall pay, or cause to be paid, to the Company an amount equal to $75,000,000 (such payment, the “Buyer Vulcan Termination Fee” and together with the Buyer Voyage Termination Fee, the “Buyer Termination Fees” and each, a “Buyer Termination Fee”).
Such payment shall be made by wire transfer of immediately available funds to an account or accounts designated by the Seller Representative within two (2) Business Days of Buyer’s receipt of the notice of such termination; provided that in no event shall the Buyer Vulcan Termination Fee be payable if (i) the failure of the condition in Section 9.1(c) or the termination of the Project Vulcan Transaction Agreement, as applicable, resulted from the occurrence of a MetalCo Material Adverse Effect (including, for the avoidance of doubt, a failure of any condition in Sections 8.2(a), 8.2(e), 8.4(a) or 8.4(e), in each case, of the Project Vulcan Transaction Agreement to have been satisfied or waived) or (ii) at the time of such termination, any Order by a Governmental Body of competent jurisdiction is in effect restraining, enjoining or otherwise prohibiting the consummation of the Transactions. The applicable Buyer Termination Fee shall be payable when due in accordance with this Section 10.3(a), without setoff, counterclaim, recoupment, defense, withholding or deduction, and Buyer shall not be entitled to withhold or delay payment based on the existence or potential existence of facts that might support a claim for Fraud or Willful Breach. If both the Buyer Voyage Termination Fee and the Buyer Vulcan Termination Fee would otherwise be payable in respect of a termination of this Agreement, only the Buyer Vulcan Termination Fee shall be payable.
(b) The Parties acknowledge and agree that (i) the fees and other provisions of this Section 10.3 are an integral part of the Transactions, (ii) each Buyer Termination Fee shall constitute liquidated damages and not a penalty and (iii) without these agreements, the Parties would not enter into this Agreement. If (x) Buyer fails to timely pay any Buyer Termination Fee when due pursuant to Section 10.3(a) or (y) the Company brings an action for specific performance pursuant to Section 11.13, and a court rules that Buyer breached this Agreement in connection with its failure to effect the Closing in accordance with Section 2.2, but such court declines to enforce specifically the obligations of Buyer to effect the Closing in accordance with Section 2.2, then Buyer shall also pay any costs and expenses (including attorneys’ fees) incurred by the Company in connection with any Legal Proceeding to enforce this Agreement that leads to a judgment against Buyer for such amount and all such actions to collect such costs and expenses (the “Company Enforcement Expenses”). If Buyer commences a Legal Proceeding against the Sellers, the Blocker or the Company in accordance with Section 11.13 that results in a judgment for monetary damages against the Sellers, the Blocker or the Company, the Company shall also pay any costs and expenses (including attorneys’ fees) incurred by Buyer in connection with such Legal Proceeding (the “Buyer Enforcement Expenses”). In no event will the Company Enforcement Expenses, on the one hand, or the Buyer Enforcement Expenses, on the other hand, exceed, in the aggregate, $3,000,000 (the “Enforcement Cap”).
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(c) In addition to the Company Enforcement Expenses, if Buyer fails to pay any Buyer Termination Fee when due, such fee shall accrue interest for the period commencing on the date such fee or other amount became past due through the date such fee is actually paid, at a rate equal to the Interest Rate, which amount shall be payable in addition to such Buyer Termination Fee and the Company Enforcement Expenses (and not subject to the Enforcement Cap).
(d) Notwithstanding anything to the contrary set forth in this Agreement, but subject to Section 10.2, Section 11.13 and this Section 10.3(d), each of the Parties expressly acknowledges and agrees that, other than in the case of Fraud or Willful Breach of this Agreement by Buyer, the Company’s right to receive payment of the applicable Buyer Termination Fee pursuant to Section 10.3(a), any Company Enforcement Expenses (subject to the Enforcement Cap) and any amounts payable under Section 10.3(c) and Section 8.11(d) shall constitute the sole and exclusive monetary remedy of the Company, the Sellers and their respective Affiliates against the Buyer Related Parties and the Debt Financing Sources for all losses and damages in respect of this Agreement or the Transactions, and upon payment of the applicable Buyer Termination Fee to the Company pursuant to Section 10.3(a), none of the Buyer Related Parties shall have any further liability or obligation to the Company, the Sellers or any of their respective Affiliates relating to or arising out of this Agreement or the Transactions (except that Buyer shall continue to be obligated to the Company or the Sellers for the Company Enforcement Expenses (if any) (subject to the Enforcement Cap), amounts payable under Section 10.3(c) and any of its expense reimbursement and indemnification obligations contained in Section 8.11(d)), all of which shall survive any termination of this Agreement and remain due and payable in accordance with their respective terms; provided that the right of the Company and the Sellers to pursue damages for Willful Breach by Buyer shall be in lieu of, and not in addition to, the right to receive a Buyer Termination Fee, such that (x) if the Company or the Sellers (acting jointly) commence any Legal Proceeding seeking monetary damages in respect of any Willful Breach by Buyer, Buyer shall have no obligation to pay a Buyer Termination Fee (and to the extent already paid, the Company shall promptly repay to Buyer the applicable Buyer Termination Fee (together with any interest paid under Section 10.3(c) in respect thereof, but excluding, for the avoidance of doubt, any Company Enforcement Expenses)) upon the earlier to occur of (1) the filing by the Company, with a court of competent jurisdiction, of a complaint asserting a claim for monetary damages in respect of a Willful Breach by Buyer and (2) the delivery by the Company to Buyer of a written notice expressly electing to pursue monetary damages in respect of a Willful Breach by Buyer in lieu of a Buyer Termination Fee, and (y) if the Company has not delivered such a notice or filed such a complaint on or prior to the date that is 90 days following the date of termination of this Agreement (or, if later, 90 days following the Company’s receipt of the applicable Buyer Termination Fee), the Company, the Sellers and their respective Affiliates shall be deemed to have irrevocably elected to receive the applicable Buyer Termination Fee and to have waived and released any and all claims against the Buyer Related Parties in respect of any Willful Breach by Buyer. Notwithstanding the foregoing, but subject to Section 11.13, the Sellers and the Company shall also have the right to pursue their rights under the Limited Guarantees and Equity Commitment Letter in accordance with Section 11.13. For the avoidance of doubt, none of (A) seeking or obtaining specific performance, an injunction or other equitable relief, (B) enforcing Buyer’s obligations under this Agreement, the Equity Commitment Letter or any Limited Guarantee, or (C) commencing or maintaining a Legal Proceeding solely to collect an applicable Buyer Termination Fee, Company Enforcement Expenses or interest shall discharge Buyer’s obligation to pay a Buyer Termination Fee or require the Company to repay a Buyer Termination Fee.
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ARTICLE XI
MISCELLANEOUS
11.1 Survival.The Parties, intending to modify any applicable statute of limitations, agree that, except in the case of Fraud, (a) (i) the representations and warranties of the Company, the Blocker or the Sellers contained in this Agreement or any of the other Transaction Documents (including any certificate to be delivered pursuant to this Agreement) and (ii) the covenants and agreements of any Party set forth herein that require performance by such Party at or before the Closing shall, in each of (i) and (ii), terminate effective as of the Closing without the need for any further action by any Person and shall not survive the Closing for any purpose whatsoever, and thereafter none of the Parties or any of their respective Affiliates or any of their respective Representatives shall have any liability or obligation whatsoever with respect to any such representation, warranty, covenant or agreement, and no claim for breach of any such representation or warranty, detrimental reliance or other right or remedy (whether in contract, in tort or at law or in equity) may be brought after the Closing with respect thereto, and (b) unless otherwise indicated, the covenants and agreements set forth in this Agreement which by their terms are required to be performed after the Closing shall survive the Closing in accordance with their respective terms, if any, until such covenants or agreements have been fully performed or satisfied. This Article XI (and any corresponding definitions set forth in Article I) shall continue and survive the Closing until all obligations with respect thereto shall have been performed or satisfied or have been terminated in accordance with their terms (or if no period for performance is specified herein, they shall continue and survive indefinitely). Notwithstanding anything to the contrary contained in this Agreement, nothing in this Agreement, including the limitations on survival set forth in this Section 11.1 shall limit the rights of Buyer or any Affiliate thereof under the R&W Insurance Policy, which shall be solely governed by the rights as set forth thereunder. For the avoidance of doubt, the provisions of this Section 11.1 will not prevent or limit a cause of action under Section 11.13 to obtain an injunction to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof.
11.2 Expenses.Whether or not the Transactions are consummated, and except as otherwise provided in this Agreement, each Party will bear its respective fees, costs and expenses incurred in connection with the preparation, negotiation, execution and performance of this Agreement or the Transactions (including legal, accounting and other professional fees); provided that any fees, costs and expenses incurred by the Sellers or their Affiliates in connection with the negotiation, execution and performance of this Agreement and the Transactions that are borne by the Blocker or any Acquired Company shall constitute Company Transaction Expenses and shall reduce the Estimated Consideration or Final Consideration, as applicable, in accordance with this Agreement. Without limiting the foregoing, Buyer shall pay, and be solely responsible for, (a) Transaction-related fees and expenses of Buyer and any of its Affiliates, (b) fifty percent (50%) of any fees and expenses associated with obtaining the D&O Insurance Policy pursuant to Section 8.6, (c) fifty percent (50%) of all filing fees payable under the HSR Act and any other Antitrust Laws or Foreign Investment Laws, (d) fifty percent (50%) of any Transfer Taxes and (e) any fees and expenses associated with acquiring any R&W Insurance Policy (the items in clauses (a) through (e), collectively, the “Buyer Expenses”). The remaining fifty percent (50%) of the fees and expenses described in clauses (b), (c) and (d) of the immediately preceding sentence shall be borne by the Sellers as Company Transaction Expenses. Notwithstanding the foregoing, if any
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Party obtains an injunction, a decree or Order of specific performance or other remedy, the other Party (other than an Affiliate of such Party) shall reimburse such Party for all out-of-pocket expenses (including all fees and expenses of counsel, accountants, financial advisors, experts and consultants) incurred by or on behalf of such Party or any Affiliate of such Party in connection with obtaining such injunction, a decree or Order of specific performance or other remedy, subject to the Enforcement Cap (applied as if such expenses were Company Enforcement Expenses or Buyer Enforcement Expenses, as the case may be).
11.3 Notary and Notarial Fees.The Sellers and Buyer are aware that the Notary holds office with Lexence N.V. and hereby acknowledge that they have been informed of the existence of the Ordinance Containing Rules of Professional Conduct and Ethics (Verordening beroeps- en gedragsregels) of the Royal Professional Organisation of Civil Law Notaries (Koninklijke Notariële Beroepsorganisatie) and explicitly agree and acknowledge that: (a) Lexence N.V. may advise and act on behalf of the Sellers with respect to the Transactions, the Notarial Transfer Deeds and any agreements or any disputes related to or resulting from the Transactions, the Notarial Transfer Deeds and any agreements or any disputes related thereto; and (b) the Notary shall execute the Notarial Transfer Deeds pursuant to which the Shares will be transferred and the Notary will act as civil law notary on behalf of the Sellers (partijnotaris). Lexence N.V. shall be responsible for arranging the payment of all such fees, taxes and duties, including fulfilling any administrative or reporting obligation imposed by the jurisdiction in question in connection with such payment; provided, for the avoidance of doubt, that all notarial fees and all registration, stamp and transfer taxes and duties or their equivalents in all jurisdictions where such fees, taxes and duties are payable as a result of the Transactions shall be considered Transfer Taxes hereunder.
11.4 Governing Law; Jurisdiction; Consent to Service of Process; Waiver of Jury.
(a) This Agreement and all Related Claims shall be governed by, and construed and enforced in accordance with, the internal Laws of the State of Delaware, including its statute of limitations, without regard to any borrowing statute that would result in the application of the statutes of limitations or repose of any other jurisdiction. In furtherance of the foregoing, the Laws of the State of Delaware will control even if under such jurisdiction’s choice of law or conflict of law analysis, the substantive or procedural Law of some other jurisdiction would ordinarily or necessarily apply.
(b) Subject to the provisions of Section 11.17, all Legal Proceedings arising out of or relating to this Agreement, the negotiation, validity, performance, enforcement or interpretation of this Agreement or the Transactions shall be filed and resolved in the Delaware Court of Chancery, or in the absence of jurisdiction over such particular matter in the Delaware Court of Chancery, the United States District Court for the District of Delaware, or in the absence of jurisdiction over such particular matter in such federal court, the Delaware Superior Court (and in each case, the appropriate Delaware appellate court or federal appellate court) and each of the Parties hereby irrevocably submits to the exclusive jurisdiction of such court over all Related Claims and the Parties hereby irrevocably agree that all Related Claims shall be heard and determined in such court. The Parties hereby irrevocably waive, to the fullest extent permitted by applicable Law, any objection that they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum for the maintenance of such dispute. The Parties agree that a final judgment with respect to any such Related Claim shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by applicable Law.
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(c) Each of the Parties hereby consents to process being served by any Party in any Legal Proceeding by the delivery of a copy thereof (other than by e-mail) in accordance with the provisions of Section 11.7.
(d) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY LEGAL PROCEEDING, DIRECTLY OR INDIRECTLY, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY RELATED CLAIM IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUCH LEGAL PROCEEDING OR RELATED CLAIM. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT: (I) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF SUCH LEGAL PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER; (II) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (III) IT MAKES THIS WAIVER VOLUNTARILY AND (IV) IT HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.4(D).
11.5 Entire Agreement.
(a) This Agreement (including the Company Disclosure Schedules and any other Schedules and Exhibits hereto), the other Transaction Documents, the Confidentiality Agreements, and each other agreement, document, instrument or certificate contemplated hereby, executed or to be executed in connection with the Transactions (collectively, the “Specified Documents”), represent the entire understanding and agreement between the Parties with respect to the subject matter hereof and thereof, and supersede all prior and contemporaneous agreements, discussions, negotiations, correspondence, communications, undertakings and understandings among the Parties with respect to the Transactions. The Parties have voluntarily agreed to define their rights, liabilities and obligations with respect to the Transactions exclusively in contract pursuant to the express terms and provisions of this Agreement and the other Specified Documents, and the Parties expressly disclaim that they are owed any duties or are entitled to any remedies not expressly set forth in this Agreement or the other Specified Documents. Furthermore, the Parties each hereby acknowledge that this Agreement embodies the justifiable expectations of sophisticated parties derived from arm’s-length negotiations; the Parties specifically acknowledge that no Party has any special relationship with another Party that would justify any expectation beyond that of ordinary parties in an arm’s-length transaction.
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(b) The sole and exclusive remedies for any breach of the terms and provisions of this Agreement (including any representations and warranties set forth herein, made in connection herewith or as an inducement to enter into this Agreement) or any claim or cause of action otherwise arising out of or related to the Transactions shall be those remedies available at law or in equity for breach of contract against the Parties to this Agreement only (as such contractual remedies have been further limited or excluded pursuant to the express terms of this Agreement), and the Parties hereby agree that no Party shall have any remedies or causes of action (whether in contract, tort, statute or otherwise) for any statements, communications, disclosures, failures to disclose, representations or warranties not explicitly set forth in this Agreement.
(c) The Parties intend for the R&W Insurance Policy (if obtained) to be the sole and exclusive remedy (other than in the case of Fraud) in respect of any losses and damages incurred by Buyer and its Affiliates and their respective Representatives, successors, and assigns arising out of inaccuracies or breaches of any Express Representations. For the avoidance of doubt, whether or not an R&W Insurance Policy is obtained, none of the Sellers, the Company or any of their respective Affiliates shall have any liability to Buyer or any of its Affiliates in respect of any inaccuracy or breach of any Express Representation, other than in the case of Fraud.
11.6 Amendments and Waivers.This Agreement may not be amended except by an instrument in writing signed by Buyer, the Company, the Blocker and the Sellers. No waiver by any Party of any provision of this Agreement or any breach of this Agreement hereunder, whether intentional or not, shall be valid unless the same shall be in writing and signed by the Party making such waiver. No action taken pursuant to this Agreement, including any investigation by or on behalf of any Party, shall be deemed to constitute a waiver by the Party taking such action of compliance with any representation, warranty, covenant, or agreement contained herein. The waiver by any Party of a breach of any provision of this Agreement shall not operate or be construed as a further or continuing waiver of such breach or as a waiver of any other or subsequent breach. No failure on the part of any Party to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of such right, power or remedy by such Party preclude any other or further exercise thereof or the exercise of any other right, power or remedy.
11.7 Notices.All notices, requests, instructions, demands and other communications under this Agreement shall be in writing and shall be deemed given (a) when delivered personally by hand (with written confirmation of receipt), (b) when sent by e-mail (provided non-automated confirmation of email receipt is obtained) on the date of such transmission or (c) when received by the addressee if sent by nationally recognized overnight delivery service (with written confirmation of receipt), in each case, at the following addresses (or to such other address as a Party may have specified by notice given to the other Party pursuant to this provision) (provided that all notices and other communications shall be sent by e-mail even if another method of delivery is also used):
If to the Company or the Blocker (prior to the Closing) to:
c/o Ontario Teachers’ Pension Plan Board
160 Front Street West, Suite 3200
Toronto, Ontario, M5J 0G4
Attention: Ashfaq Qadri; Daniel Zhang and Legal Department
E-mail: Ashfaq_Qadri@otpp.com; Daniel_Zhang@otpp.com;
law_investments@otpp.com
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With a copy (which shall not constitute notice) to:
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, NY 10019
Attention: Timothy F. Burns
E-mail: tburns@paulweiss.com
If to the Seller Representative, to:
c/o Ontario Teachers’ Pension Plan Board
160 Front Street West, Suite 3200
Toronto, Ontario, M5J 0G4
Attention: Ashfaq Qadri; Daniel Zhang and Legal Department
E-mail: Ashfaq_Qadri@otpp.com; Daniel_Zhang@otpp.com;
law_investments@otpp.com
With a copy (which shall not constitute notice) to:
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, NY 10019
Attention: Timothy F. Burns
E-mail: tburns@paulweiss.com
If to the Sellers:
To the address set forth on the Allocation Schedule as set forth next to each respective Seller.
With a copy (which shall not constitute notice) to:
Paul, Weiss, Rifkind, Wharton & Garrison LLP
1285 Avenue of the Americas
New York, NY 10019
Attention: Timothy F. Burns
E-mail: tburns@paulweiss.com
If to Buyer or the Blocker or the Company (after the Closing), to:
c/o Silgan Holdings Inc.
601 Merritt Seven, Floor 1
Norwalk, CT 06851
Attention: Frank W. Hogan, III
E-mail: fhogan@silgan.com
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c/o A-VL Holdco, LP
450 Lexington Ave, 40th Floor
New York, NY 10017
Attention: Eric Baroyan; General Counsel
E-mail: ebaroyan@americanindustrial.com; notices@americanindustrial.com
With a copy (which shall not constitute notice) to:
Sidley Austin LLP
787 7th Ave
New York, NY 10019
Attention: Justin A. Macke; MK (Mee Kyung) Han
E-mail: jmacke@sidley.com; mhan@sidley.com
11.8 Severability.If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any Law or public policy, all other terms or provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the Transactions is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal, or incapable of being enforced, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner in order that the Transactions are consummated as originally contemplated to the greatest extent possible.
11.9 Binding Effect; Assignment.This Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns. No assignment of this Agreement or of any rights or obligations hereunder may be made by any Party, directly or indirectly (by operation of Law or otherwise), without the prior written consent of the other Parties and any attempted assignment without the required consents shall be void; provided that Buyer may, in its sole discretion, without the consent of any other Parties, assign its rights, interests and obligations hereunder (a) to any Affiliate of Buyer, but must remain liable hereunder, and (b) for collateral security purposes to any lender providing financing to Buyer. No assignment of any obligations hereunder shall relieve the Parties of any such obligations.
11.10 No Third Party Beneficiaries.Except as expressly provided herein, this Agreement is for the sole benefit of the Parties and their respective successors and permitted assigns and nothing in this Agreement, express or implied, shall give or be construed to give any rights, remedies or claims of any nature upon any Person other than the Parties and their respective successors or permitted assigns; provided, however, that the Parties specifically acknowledge and agree that (i) the provisions of Section 8.6 are intended to be for the benefit of, and shall be enforceable by, the Indemnitees who are Leakage Parties in their capacities as such; (ii) the provisions of Section 8.6(b) are intended to be for the benefit of, and shall be enforceable by, the Secondary Indemnitors who are Leakage Parties; (iii) the provisions of Section 11.11 are intended to be for the benefit of, and shall be enforceable by Paul Weiss and Weil; (iv) the provisions of Section 11.17 are intended to be for the benefit of, and shall be enforceable by, the Debt Financing Sources; (v) the provisions of Section 11.12 are intended to be for the benefit of, and shall be enforceable by, the Non-Parties; and (vi) the provisions of Section 11.14 are intended to be for the benefit of, and shall be enforceable by, the Buyer Released Parties and the Seller Released Parties. All of the Persons identified as third-party beneficiaries in the immediately preceding sentence shall be entitled to enforce such provisions and to avail themselves of the benefits of any remedy for any breach of such provisions, all to the same extent as if such Persons were parties to this Agreement.
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11.11 Legal Representation.
(a) Buyer hereby agrees, on behalf of itself and its Affiliates (including, following the Closing, the Blocker, the Company or any of the Company Subsidiaries) (all such parties, the “Waiving Parties”), that (i) Paul, Weiss, Rifkind, Wharton & Garrison LLP (or any successor) (“Paul Weiss”) and Weil, Gotshal & Manges LLP (or any successor) (“Weil”) may represent (A) any or all of the Sellers or any of their respective Affiliates or their respective directors, members, partners, officers, employees (collectively, the “Seller Group”) or (B) the Seller Representative, in each case, in connection with any dispute, litigation, claim, proceeding or obligation arising out of or relating to this Agreement, any Transaction Documents or the transactions contemplated hereby or thereby between any of the Waiving Parties, on the one hand, and any member of the Seller Group, on the other hand, notwithstanding its representation of the Blocker, the Company or any of the Company Subsidiaries. Each of Buyer, the Blocker and the Company, on behalf of itself and the Waiving Parties, hereby consents thereto and irrevocably waives (and will not assert) any conflict of interest, breach of duty or any other objection arising therefrom or relating thereto.
(b) Buyer, on behalf of itself and the Waiving Parties, hereby irrevocably acknowledges and agrees that all communications, written or oral, between the Blocker, any of the Acquired Companies, any Person in the Seller Group or the Seller Representative and its counsel currently representing the Sellers, the Blocker and the Acquired Companies in connection with this Agreement, the other Transaction Documents or any other agreements or transactions contemplated hereby, including Paul Weiss and Weil, made in connection with the negotiation, preparation, execution, delivery and performance under, or any dispute or Legal Proceeding arising out of or relating to, this Agreement, any Transaction Documents or the Transactions, or any matter relating to any of the foregoing, are privileged communications that do not pass to the Blocker or the Company notwithstanding the purchase and sale of the Shares, and instead survive, remain with and are controlled by the Seller Representative (the “Privileged Communications”), without any waiver thereof.
(c) Buyer, on behalf of itself and the Waiving Parties, hereby further agrees (i) that none of Buyer or any of its Affiliates (including, following the Closing, the Blocker and the Acquired Companies) shall have the right to use any such Privileged Communications whether located in the records or email server of the Blocker or an Acquired Company or otherwise (including in the knowledge of the officers and employees), (ii) not to assert that any privilege has been waived as to the Privileged Communications, whether located in the records or email server of the Blocker or an Acquired Company or otherwise (including in the knowledge of the officers and employees) and (iii) not to take any action that would result in any subsequent waiver of the privilege respecting the Privileged Communications; provided that nothing in this Section 11.11 shall prohibit any Acquired Company or the Blocker from retaining, accessing or using any documents or information located in its books and records, email server, files or systems in the ordinary course of business for operational, compliance, regulatory, Tax, financial reporting or other business purposes. Notwithstanding the foregoing, this Section 11.11 shall not apply to any dispute or Legal Proceeding involving any Person other than the Seller Group.
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11.12 Non-Recourse.This Agreement may only be enforced against, and any Related Claims may only be made or asserted against (and are expressly limited to) the Persons that are expressly identified as the Parties in the preamble to and signature pages of this Agreement and then solely in their capacities as such and solely with respect to the specific obligations set forth herein with respect to such Person. No Person who is not a named party to this Agreement, including any current, former or future Affiliate or Related Person or Representative of any Party or any current, former, or future Affiliate or Representative of any of the foregoing (such Persons, collectively, but specifically excluding the Parties, “Non-Parties”), shall have or be deemed to have any liability (whether at law or in equity, based upon contract, tort, statute, based upon any theory that seeks to impose liability of any Party against its owners or Affiliates or otherwise) for any obligations or liabilities whatsoever arising under, in connection with or related to this Agreement, the Transactions (or in respect of any oral representations made or alleged to be made in connection therewith) or for any Related Claim and, to the maximum extent permitted by applicable Law, each Party hereby irrevocably disclaims reliance on any such Non-Party and irrevocably waives and releases all such liabilities, obligations and Related Claims against any such Non-Party. Without limiting the rights of any Party against the other Parties as set forth herein, in no event shall any Party, any of its Affiliates or any Person claiming by, through or on behalf of any of them institute any Related Claim against any Non-Party. Notwithstanding anything to the contrary in this Section 11.12, nothing in this Section 11.12 shall be deemed to limit any liabilities of the Guarantors to the Company under the Limited Guarantees or of the Equity Financing Source to Buyer under the Equity Commitment Letter or serve as a waiver of any right on the part of Buyer or the Company to initiate any Legal Proceedings permitted pursuant to, and in accordance with, the specific terms of the Limited Guarantees or the Equity Commitment Letter, as applicable.
11.13 Specific Performance.
(a) The Parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached, and that money damages or legal remedies would not be an adequate remedy for any such damages. Therefore, it is accordingly agreed that prior to the valid termination of this Agreement in accordance with Section 10.1, each Party shall be entitled to seek an injunction or injunctions to prevent or restrain any breach or threatened breach of this Agreement by any other Party and to enforce specifically the terms and provisions of this Agreement, to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and obligations of any other Party, in any court of competent jurisdiction. Such remedies shall be in addition to and not in substitution for any other remedy to which such Party is entitled at law or in equity. If, prior to the applicable Termination Date, any Party brings any Legal Proceeding, in each case, in accordance with Section 11.4, to enforce specifically the performance of the terms and provisions hereof by any other Party, the applicable Termination Date shall be automatically extended by (i) the amount of time during which such Legal Proceeding is pending, plus 20 Business Days or (ii) such other time period established by the court presiding over such Legal Proceeding, as the case may be; provided that in no event shall the applicable Termination Date be extended pursuant to this Section 11.13(a) beyond April 12, 2028.
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(b) Each Party hereby (i) agrees not to oppose the granting of an injunction, specific performance or other equitable relief as provided herein on the basis that the other Party has an adequate remedy at law or an award of specific performance is not an appropriate remedy for any reason at law, equity or otherwise and (ii) waives any requirement under any Law to post a bond or other security as a prerequisite to obtaining equitable relief.
(c) Subject to Section 10.3, the Parties agree that (i) by seeking the remedies provided for in this Section 11.13, no Party shall in any respect waive its right to seek at any time any other form of relief that may be available to it under this Agreement or any other Transaction Document (including monetary damages) in the event that this Agreement has been terminated or in the event that the remedies provided for in this Section 11.13 are not available or otherwise are not granted, and (ii) nothing set forth in this Section 11.13 shall require any Party to institute any proceeding for (or limit any Party’s right to institute any proceeding for) specific performance under this Section 11.13 prior to or as a condition to exercising any termination right under Article X, nor shall the commencement of any Legal Proceeding pursuant to this Section 11.13 or anything set forth in this Section 11.13 restrict or limit any Party’s right to terminate this Agreement in accordance with the terms of Article X or pursue any other remedies under this Agreement or any other Transaction Document that may be available then or thereafter.
(d) Notwithstanding anything in this Agreement to the contrary, the Parties hereby agree that the Company shall be entitled to specific performance of Buyer’s obligations to cause the Equity Financing to be funded and to consummate the Transactions (including via enforcement of the Equity Commitment Letter and Limited Guarantees), and effect the Closing if, and only if, (i) all conditions in Sections 9.1 and 9.2 have been satisfied (other than those that, by their nature, are to be satisfied at the Closing) at the time the Closing is required to have occurred pursuant to Section 2.2, (ii) the Debt Financing (including any Replacement Financing that has been obtained in accordance with, and satisfies the conditions of, Section 8.10(e)) has been funded in accordance with the terms thereof or will be funded in accordance with the terms thereof at the Closing, and (iii) the Company has confirmed in writing that if specific performance is granted and the Debt Financing (including any Replacement Financing that has been obtained in accordance with, and satisfies the conditions of, Section 8.10(e)) is funded, then it would take such actions that are required of it by this Agreement to cause the Closing to occur.
11.14 Release.
(a) Effective as of the Closing Date, except for any rights or obligations under this Agreement or the other Transaction Documents, Buyer on behalf of itself and each of its Affiliates (including, following the Closing, the Acquired Companies and the Blocker) and each of its current, former and future officers, directors, employees, partners, members, advisors, successors and assigns (collectively, the “Buyer Releasing Parties”), hereby irrevocably and unconditionally waives, releases and forever discharges the Sellers, their respective Affiliates and each of their respective current, former and future officers, directors, employees, partners, members, owners, advisors, successors and assigns (collectively, the “Seller Released Parties”) of and from any and all actions, causes of action, suits, proceedings, executions, judgments, duties, debts, dues, accounts, bonds, contracts and covenants (whether express or implied), and claims and demands whatsoever whether in law or in equity which the Buyer Releasing Parties now have or in the future may have against each of the Seller Released Parties, in each case, in respect of
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any cause, matter or thing relating to the business or operations of the Blocker or the Acquired Companies, the Transactions or the ownership of the Shares by the Seller Released Parties, in each case, occurring or arising on or prior to the Closing Date, but, to the extent applicable, only to the extent that such cause, matter or thing does not otherwise constitute Fraud (including any actions, causes of action, suits, proceedings, executions, judgments, duties, debts, dues, accounts, bonds, contracts, covenants, claims and demands for contribution, cost recovery or otherwise arising under the Comprehensive Environmental Response, Compensation, and Liability Act or other Environmental Laws). Buyer, on behalf of itself and each Buyer Releasing Party, covenants and agrees that no Buyer Releasing Party shall assert any such claim against the Seller Released Parties.
(b) Effective as of the Closing Date, except for any rights or obligations under this Agreement or the other Transaction Documents, each Seller on behalf of itself and its current, former and future officers, directors, employees, partners, members, advisors, successors and assigns (collectively, the “Seller Releasing Parties”), hereby irrevocably and unconditionally waives, releases and forever discharges Buyer, the Blocker, the Acquired Companies and their respective Affiliates and each of their respective current, former and future officers, directors, employees, partners, members, owners, advisors, successors and assigns (collectively, the “Buyer Released Parties”) of and from any and all actions, causes of action, suits, proceedings, executions, judgments, duties, debts, dues, accounts, bonds, contracts and covenants (whether express or implied), and claims and demands whatsoever whether in law or in equity which the Seller Releasing Parties now have or in the future may have against each of the Buyer Released Parties, in each case, in respect of any cause, matter or thing relating to the business or operations of the Blocker or the Acquired Companies, the Transactions or the ownership of the Shares by the Buyer Released Parties, in each case, occurring or arising on or prior to the Closing Date, but, to the extent applicable, only to the extent that such cause, matter or thing does not otherwise constitute Fraud (including any actions, causes of action, suits, proceedings, executions, judgments, duties, debts, dues, accounts, bonds, contracts, covenants, claims and demands for contribution, cost recovery, or otherwise arising under the Comprehensive Environmental Response, Compensation and Liability Act or other Environmental Laws). Each Seller, on behalf of itself and each Seller Releasing Party, covenants and agrees that no Seller Releasing Party shall assert any such claim against the Buyer Released Parties.
11.15 Counterparts.This Agreement may be executed in one or more counterparts including by means of electronic transmission, such as by electronic mail in “.pdf” form, each of which will be deemed to be an original copy of this Agreement and all of which, when taken together, will be deemed to constitute one and the same agreement.
11.16 Seller Representative.
(a) Designation. The Seller Representative is hereby authorized to serve as the representative, agent and attorney-in-fact of each Seller with respect to the matters expressly set forth in this Agreement, the Put Option Agreement, and the other Transaction Documents to be performed by the Seller Representative.
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(b) Authority. Each Seller irrevocably appoints the Seller Representative as the representative, agent, proxy and attorney-in-fact for such Seller for all purposes of this Agreement and any other Transaction Documents, including the full power and authority on such Seller’s behalf to (i) consummate the Transactions, (ii) deduct or hold back any funds which may be payable to any Seller pursuant to the terms of this Agreement in order to pay, or establish a reserve for, any amount which may be payable by such Seller hereunder, (iii) give or receive notice under this Agreement, to execute and deliver on behalf of such Seller any amendment to the terms hereof or grant any waiver, consent or approval by the Sellers under this Agreement, (iv) take all other actions to be taken by or on behalf of such Seller in connection herewith, (v) retain funds for reasonably anticipated expenses and liabilities, and (vi) do each and every act and exercise any and all rights which such Seller or the Sellers collectively are permitted or required to do or exercise in connection with this Agreement and any other Transaction Document. The Seller Representative shall act for the Sellers on all of the matters set forth in this Agreement in the manner the Seller Representative believes to be in the best interest of the Sellers. All decisions and actions by the Seller Representative made in accordance with the authority granted to it hereunder shall be binding upon all of the Sellers, and no Seller shall have the right to object, dissent, protest or otherwise contest the same. For the avoidance of doubt, Buyer shall be entitled to rely on the acts, to the extent authorized hereunder, of the Seller Representative.
(c) Expense Reimbursement and Expense Reserve Holdback Amount.
(i) Each Seller further agrees that he, she or it shall promptly reimburse the Seller Representative for his, her or its Pro Rata Share of any payment obligations, fees or expenses incurred by the Seller Representative in exercising its authority hereunder and taking any actions pursuant to the terms and conditions of this Agreement or the other Transaction Documents; provided that the Seller Representative shall first make payment of such fees and expenses from the Expense Reserve Holdback Amount.
(ii) The Seller Representative will hold the Expense Reserve Holdback Amount in a segregated account with a Federal Deposit Insurance Corporation insured institution in a segregated account separate from the Seller Representative’s corporate funds, and the Seller Representative will not use these funds for its operating expenses or any other corporate purposes and will not voluntarily make these funds available to its creditors in the event of bankruptcy. The Sellers will not receive any interest or earnings on the Expense Reserve Holdback Amount and irrevocably transfer and assign to the Seller Representative any ownership right that they may otherwise have had in any such interest or earnings. The Seller Representative will not be liable for any loss of principal of the Expense Reserve Holdback Amount other than as a result of its fraud, gross negligence or willful misconduct.
(iii) The Expense Reserve Holdback Amount shall be retained by the Seller Representative for such time as the Seller Representative shall determine in its sole discretion. As soon as practicable following the completion of the Seller Representative’s responsibilities, the Seller Representative will deliver the aggregate amount of funds remaining in the Expense Reserve Holdback Account to the Sellers in accordance with their Pro Rata Share.
(iv) For Tax purposes, the Expense Reserve Holdback Amount will be treated as having been received and voluntarily set aside by the Sellers at the time of the Closing.
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(d) Replacement. The Seller Representative may resign at any time. In the event that the Seller Representative becomes unable to perform its responsibilities hereunder or resigns from such position, the Sellers (or, if applicable, their respective heirs, legal representatives, successors and assigns) who held a majority of the direct or indirect voting power of the Company shall select another representative to fill such vacancy, and such substituted representative shall be deemed to be the Seller Representative for all purposes of this Agreement.
(e) Exculpation.
(i) The Seller Representative will incur no liability of any kind to any Seller with respect to any action or omission by the Seller Representative in connection with the Seller Representative’s services pursuant to this Agreement and any other Transaction Document while acting in good faith, except to the extent such liability primarily results from the Seller Representative’s Fraud, gross negligence or willful misconduct and the Seller Representative shall not be liable to any Seller for any action or omission pursuant to the advice of outside counsel; provided, for the avoidance of doubt, that the foregoing shall not limit or otherwise affect any liability or obligation of the Seller Representative (in its capacity as such) to Buyer or any of its Affiliates under this Agreement or any other Transaction Document. Buyer agrees that it will not look to the personal assets of the Seller Representative, acting in such capacity, for the satisfaction of any obligations to be performed by the Blocker and the Acquired Companies (pre-Closing) or the Sellers.
(ii) Each Seller will, severally (based on its Pro Rata Share) but not jointly with the other Sellers, indemnify, defend and hold harmless the Seller Representative from and against any and all losses, liabilities, damages, claims, penalties, fines, forfeitures, actions, fees, costs and expenses (including reasonable and documented out-of-pocket fees and expenses of counsel and experts and their staffs and all expense of document location, duplication and shipment) (collectively, “Representative Losses”) arising out of or in connection with the Seller Representative’s execution and performance of this Agreement and any agreements ancillary hereto, in each case as such Representative Loss is suffered or incurred; provided that in the event that any such Representative Loss is finally adjudicated to have been primarily caused by the bad faith, Fraud, gross negligence or willful misconduct of the Seller Representative, the Seller Representative will reimburse the Sellers the amount of such indemnified Representative Loss to the extent attributable to such bad faith, Fraud, gross negligence or willful misconduct. If not paid directly to the Seller Representative by the Sellers, any such Representative Losses may be recovered by the Seller Representative from the Expense Reserve Holdback Amount at such time as remaining amounts would otherwise be distributable to the Sellers; provided that while this Section 11.16(e) allows the Seller Representative to be paid from the aforementioned sources of funds, this does not relieve the Sellers from their obligation to promptly pay such Representative Losses as they are suffered or incurred, nor does it prevent the Seller Representative from seeking any remedies available to it at law or otherwise. In no event will the Seller Representative be required to advance its own funds on behalf of the Sellers or otherwise. Notwithstanding anything in this Agreement to the contrary, any restrictions or limitations on liability or indemnification obligations of the Sellers set forth elsewhere in this Agreement are not intended to be applicable to the indemnities provided to the Seller Representative under this Section 11.16.
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(iii) This Section 11.16(e) will survive the Closing, the resignation or removal of the Seller Representative or the termination of this Agreement.
(f) Irrevocability; Successors. The provisions of this Section 11.16 are independent and severable, are irrevocable and coupled with an interest and shall be enforceable notwithstanding any rights or remedies that any Seller may have in connection with the Transactions. The provisions of this Section 11.16 shall be binding upon the heirs, legal representatives, successors and assigns of each Seller, and any references in this Agreement to a Seller shall mean and include the successors to the rights of the Sellers hereunder, whether pursuant to testamentary disposition, the Laws of descent and distribution or otherwise.
11.17 Debt Financing Sources. Notwithstanding anything in this Agreement to the contrary, the Company, on behalf of itself, the Company Subsidiaries and each of its controlled Affiliates, and each Seller, on behalf of itself and each of its controlled Affiliates, hereby:
(a) without limiting the rights of Buyer under the Debt Commitment Letter or any right or remedy available to any Person under the definitive documentation governing the Debt Financing, agrees that none of the Debt Financing Sources will have any liability to the Company, the Blocker, the Sellers or any of the Company Subsidiaries or any of their respective controlled Affiliates relating to or arising out of this Agreement, the Debt Financing, the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder, whether in law or in equity, whether in contract or in tort or otherwise;
(b) agrees that any proceeding, whether in law or in equity, whether in contract or in tort or otherwise, involving the Debt Financing Sources, arising out of or relating to this Agreement, the Debt Financing or any of the agreements (including the Debt Commitment Letter) entered into in connection with the Debt Financing or any of the transactions contemplated hereby or thereby or the performance of any services thereunder shall be subject to the exclusive jurisdiction of any federal or state court in the Borough of Manhattan, New York, New York, and any appellate court thereof and each Party irrevocably submits itself and its property with respect to any such proceeding to the exclusive jurisdiction of such court;
(c) agrees that any such proceeding shall be governed by the Laws of the State of New York (without giving effect to any conflicts of law principles that would result in the application of the Laws of another state), except as otherwise provided in the Debt Commitment Letter or other applicable definitive document relating to the Debt Financing;
(d) agrees not to bring or support or permit any of its Affiliates to bring or support any proceeding of any kind or description, whether in law or in equity, whether in contract or in tort or otherwise, against any Debt Financing Source in any way arising out of or relating to this Agreement, the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder in any forum other than any federal or state court in the Borough of Manhattan, New York, New York;
(e) agrees that service of process upon the Company, the Company Subsidiaries or its controlled Affiliates in any such proceeding shall be effective if notice is given in accordance with Section 11.7;
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(f) irrevocably waives, to the fullest extent that it may effectively do so, the defense of an inconvenient forum to the maintenance of such Legal Proceeding in any such court;
(g) knowingly, intentionally and voluntarily waives, to the fullest extent permitted by Law, trial by jury in any proceeding involving any Debt Financing Source in any way arising out of or relating to this Agreement, the Debt Financing, the Debt Commitment Letter or any of the transactions contemplated hereby or thereby or the performance of any services thereunder; and
(h) agrees that the Debt Financing Sources are express third party beneficiaries of, and may enforce, any of the provisions of Section 10.3(d), Section 11.13(d) and this Section 11.17 and that such provisions and the definition of “Debt Financing Source” (and the other related definitions used in such provisions and definition and any other provisions of this Agreement to the extent an amendment thereof would serve to modify or waive the substance of such provisions or definitions) shall not be amended in any way adverse to any Debt Financing Source without the prior written consent of such Debt Financing Source.
Notwithstanding the foregoing, nothing in this Section 11.17 shall in any way limit or modify the rights and obligations of Buyer under this Agreement or any Debt Financing Source’s obligations to Buyer under any debt commitment letter or to Buyer (and following the Closing Date, the Blocker and the Acquired Companies) under the definitive agreements governing the Debt Financing. This Section 11.17 shall, with respect to the matters referenced herein, supersede any provision of this Agreement to the contrary.
** REMAINDER OF PAGE INTENTIONALLY LEFT BLANK **
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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed by their respective authorized officers, as of the date first written above.
| BUYER: | ||
| SILGAN METAL PACKAGING LLC | ||
| By: |
| |
| Name: | ||
| Title: | ||
[SIGNATURE PAGE TO SHARE PURCHASE AGREEMENT]
| THE COMPANY: | ||
| TRIVIUM PACKAGING B.V. | ||
| By: |
| |
| Name: M.S. Mapes | ||
| Title: Director | ||
| By: |
| |
| Name: S.C. Siebert | ||
| Title: Director | ||
| THE BLOCKER: | ||
| EXAL HOLDINGS INTERNATIONAL PARENT B.V. | ||
| By: |
| |
| Name: M.S. Mapes | ||
| Title: Director | ||
| By: |
| |
| Name: Syed Asfaq Qadri | ||
| Title: Director | ||
[SIGNATURE PAGE TO SHARE PURCHASE AGREEMENT]
| SELLERS: | ||
| ELEMENT HOLDINGS II L.P. | ||
| By: Element General Partner, Ltd, its general partner | ||
| By: |
| |
| Name: Syed Ashfaq Qadri | ||
| Title: Director | ||
| ARDAGH GROUP HOLDINGS S.À. R.L. | ||
| By: |
| |
| Name: Herman Troskie | ||
| Title: Manager | ||
| By: |
| |
| Name: Johannes de Zwart | ||
| Title: Manager | ||
[SIGNATURE PAGE TO SHARE PURCHASE AGREEMENT]
| SELLER REPRESENTATIVE: | ||
| ELEMENT HOLDINGS II L.P. | ||
| By: Element General Partner, Ltd., its general partner | ||
| By: |
| |
| Name: Syed Ashfaq Qadri | ||
| Title: Director | ||
[SIGNATURE PAGE TO SHARE PURCHASE AGREEMENT]
EXHIBIT A
Form of Notarial Transfer Deed
[See attached.]
Exhibit 10.4
Execution Version
| WELLS FARGO BANK, NATIONAL ASSOCIATION WELLS FARGO SECURITIES, LLC 550 South Tryon St. Charlotte, NC 28202 |
GOLDMAN SACHS BANK USA 200 West Street New York, New York 10282 |
ROYAL BANK OF CANADA RBC CAPITAL MARKETS 200 Vesey Street New York, New York 10281 |
| DEUTSCHE BANK AG NEW YORK BRANCH DEUTSCHE BANK SECURITIES INC. One Columbus Circle New York, New York 10019 |
BANK OF AMERICA, N.A. BOFA SECURITIES INC. One Bryant Park New York, NY 10036 |
CONFIDENTIAL
October 17, 2026
Silgan Metal Packaging LLC
c/o American Industrial Partners
450 Lexington Avenue, 40th Floor
New York, NY 10017
Attention: Barry Price & Jordan Ransom
c/o Silgan Holdings, Inc.
601 Merritt Seven, First Floor
Norwalk, CT 06851
Attention: Frank Hogan
Project Voyage
Commitment Letter
Ladies and Gentlemen:
You have advised Wells Fargo Bank, National Association (“Wells Fargo Bank”), Wells Fargo Securities, LLC (“Wells Fargo Securities” and, together with Wells Fargo Bank, “Wells Fargo”), Goldman Sachs Bank USA (“Goldman Sachs”), Royal Bank of Canada (“RBC”), RBC Capital Markets1 (“RBCCM”), Deutsche Bank AG New York Branch (“DBNY”), Deutsche Bank Securities Inc. (“DBSI” and, together with DBNY, “DB”), Bank of America, N.A. (“Bank of America”), BofA Securities, Inc. (together with its designees and affiliates, “BofA Securities” and, together with Wells Fargo, Goldman Sachs, RBC, RBCCM, DB, Bank of America and each Additional Arranger appointed pursuant to Section 2 below, the “Commitment Parties”, “us” or “we”) that you intend to consummate the other transactions described in the Transaction Summary attached hereto (the “Transaction Summary”). Capitalized terms used but not defined herein have the meanings assigned to them in the Exhibits and Annexes (including the Definitions Annex) attached hereto (such Exhibits and Annexes, together with this letter, collectively, the “Commitment Letter”).
| 1 | RBC Capital Markets is a brand name for the capital markets businesses of Royal Bank of Canada and its |
| 1. | Commitments |
In connection with the Transactions, (i) each of Wells Fargo Bank, Goldman Sachs, RBC, DBNY and Bank of America is pleased to advise you of its commitment to provide the percentage of the principal amount of the Initial Term Facility set forth opposite its name on the Commitments Schedule attached hereto, on the terms set forth in this Commitment Letter and Exhibit B attached hereto (the “Term Sheet”) (in such capacity, together with any other Initial Term Lenders appointed as described below, the “Initial Term Lenders”) (and hereby commits to provide its ratable share of any increase required as a result of original issue discount or upfront fees required to be funded in connection with the “market flex” provisions of the Fee Letter (as defined below) in respect of the Initial Term Facility) (“Flex OID”), and (ii) each of Wells Fargo Bank, Goldman Sachs, RBC, DBNY and Bank of America is pleased to advise you of its commitment to provide the percentage of the principal amount of the Revolving Facility set forth opposite its name on the Commitments Schedule attached hereto, on the terms set forth in this Commitment Letter and the Term Sheet (in such capacity, together with any other Initial Revolving Lenders appointed as described below, the “Initial Revolving Lenders”, and, together with the Initial Term Lenders, the “Initial Lenders”), in each case subject solely to the satisfaction or waiver of the conditions set forth in the Conditions Exhibit attached hereto as Exhibit C (the “Conditions Exhibit”). The commitments herein of each Initial Lender are several and not joint.
| 2. | Titles and Roles |
It is agreed that (i) Wells Fargo Securities, Goldman Sachs, RBCCM, DBSI and BofA Securities will act as joint lead arrangers and bookrunners for the Initial Term Facility and the Revolving Facility (in such capacity, each, a “Lead Arranger”, and collectively, the “Lead Arrangers”) and (ii) Wells Fargo Bank will act as sole administrative agent for the Facilities (in such capacity, the “Administrative Agent”).
You may, on or prior to the 20th business day after the Acceptance Date (as defined below), appoint additional lead arrangers, bookrunners, managers, agents or co-agents in respect of the applicable Facility or confer other titles in respect of each Facility (each such person, an “Additional Arranger”) and you may allocate up to 30% in the aggregate of the commitments and corresponding compensatory economics with respect to each of the Facilities to such Additional Arrangers (it being agreed that (x) each such Additional Arranger (or its affiliate) shall assume a proportion of the commitments with respect to the Facilities on a pro rata basis that is equal to the proportion of the economics allocated to such Additional Arranger (or its affiliate) in respect of the Facilities and (y) the commitment amounts of, and the economics allocated to, the Commitment Parties party hereto immediately prior to such appointment in respect of the Facilities will be proportionately reduced by the commitment amounts of, and economics allocated to, each such Additional Arranger (or its affiliate), in each case upon the execution and delivery by such Additional Arranger (or its affiliate) of customary joinder documentation (which may be in the form of an amendment and restatement of this Commitment Letter) (a “Joinder”)) and, thereafter, each such Additional Arranger (and its affiliate) shall constitute a “Commitment Party” and “Lead Arranger”, “Initial Term Lender” and/or “Initial Revolving Lender” (as applicable) and an “Initial Lender” under this Commitment Letter and under the Fee Letter referred to below.
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It is further agreed that (i) Wells Fargo Securities will have “lead left” placement on the cover page of any marketing materials for the Initial Dollar Term Facility and the Revolving Facility and (ii) Goldman Sachs will have “lead left” placement on the cover page of any marketing materials for the Initial Euro Term Facility, and, in each case, will hold the roles and responsibilities conventionally understood to be associated with such name placement. Except as provided above, no other agents, co-agents, arrangers, managers or bookrunners will be appointed, no other titles will be awarded and no compensation (other than that expressly contemplated by the Commitment Letter and the Fee Letter) will be paid to any Lender (as defined below) in order to obtain its commitment to participate in the Facilities unless you and we shall so agree. Any Excluded Party (as defined below) of an Additional Arranger shall be treated in the same manner as an Excluded Party of a Lead Arranger.
| 3. | Syndication |
We reserve the right to syndicate the Facilities to a group of banks, financial institutions and other institutional lenders (together with the Initial Lenders, the “Lenders”) identified by us in consultation with you and reasonably acceptable to you (including any relationship lenders designated by you in consultation with us), in each case excluding (i) any person identified by you or either Sponsor in writing (including by email) (x) to us prior to the date hereof, (y) to us after the date hereof and on or prior to the Closing Date, that is reasonably acceptable to us or (z) from time to time after the Closing Date, to the Administrative Agent, (ii) any person that is a competitor of Holdings, you, Silgan, the Target or your or their respective subsidiaries, in each case that is separately identified in writing by you or either Sponsor to us from time to time prior to the Closing Date (or, if after the Closing Date, to the Administrative Agent), (iii) any affiliate of any person identified in clause (i) or (ii) above that (a) is identified in writing by you or either Sponsor from time to time or (b) is identifiable as an affiliate on the basis of its name (other than, in the case of an affiliate of a person identified in clause (ii) above, bona fide debt funds that purchase commercial loans in the ordinary course of business) or (iv) any person that is an Excluded Party (any such person in clause (i), (ii), (iii) or (iv) above, a “Disqualified Institution”). The designation of a Disqualified Institution shall not have retroactive effect. Notwithstanding any other provision of this Commitment Letter to the contrary (other than (x) upon execution and delivery of a Joinder, in connection with any assignment to an Additional Arranger in respect of the amount allocated to such Additional Arranger pursuant to such Joinder and (y) in the case of any assignments among Goldman Sachs and Goldman Sachs Lending Partners LLC), (i) no Initial Lender shall be relieved or novated from its obligations hereunder (including its obligation to fund the Facilities on the Closing Date) in connection with any syndication, assignment or participation of the Facilities, including its commitments in respect thereof, until after the initial funding of the Facilities on the Closing Date, (ii) no assignment or novation shall become effective with respect to all or any portion of any Initial Lender’s commitments in respect of the Facilities until after the initial funding of the Facilities on the Closing Date and (iii) unless you and we agree in writing, the Initial Lenders shall retain exclusive control over all rights and obligations with respect to their commitments in respect of the Facilities, including all rights with respect to consents, modifications, supplements and amendments, until the Closing Date has occurred.
We intend to commence syndication efforts promptly after the execution hereof, and until the earlier to occur of (i) the date that a Successful Syndication (as defined in the Fee Letter) occurs and (ii) the date that is 30 days after the Closing Date (the period until such earlier date, the “Syndication Period”), you agree to use commercially reasonable efforts to assist, to use commercially reasonable efforts to cause the Sponsors to assist and, to the extent practical and appropriate and not in contravention of the Voyage Acquisition Agreement, to use commercially reasonable efforts to cause the Target and its subsidiaries to assist us in completing a syndication reasonably satisfactory to us and you. Such assistance shall be limited to (i) using commercially reasonable efforts to ensure that the syndication efforts benefit from the existing banking relationships of you and the Sponsors and, to the extent practical and appropriate and not in contravention of the Voyage Acquisition Agreement, the Target and its subsidiaries, (ii) facilitating telephonic or virtual contact between appropriate members of your senior management and certain legal and non-legal advisors and representatives, on the one hand, and the
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proposed Lenders, on the other hand (and, to the extent practical and appropriate and not in contravention of the Voyage Acquisition Agreement, using your commercially reasonable efforts to cause such contact between appropriate members of senior management and certain advisors and representatives of the Target, its subsidiaries and the proposed Lenders), in each case upon reasonable advance notice and at times to be agreed, (iii) your assistance (and using your commercially reasonable efforts to cause the Sponsors and, to the extent practical and appropriate and not in contravention of the Voyage Acquisition Agreement, the Target and its subsidiaries to assist) in the preparation of customary confidential information memoranda (collectively, the “Confidential Information Memorandum”) and other customary marketing materials reasonably requested by us to be used in connection with the syndication of the Facilities (such materials, together with the Confidential Information Memorandum and the Term Sheet, collectively, the “Information Materials”), (iv) the hosting, with the Commitment Parties, of a meeting (or, if you require, a conference call in lieu of such meeting) of prospective Lenders at such time and location to be mutually agreed (and, to the extent practical and appropriate and not in contravention of the Voyage Acquisition Agreement, using your commercially reasonable efforts to cause appropriate members of senior management of the Target and its subsidiaries to be available for such meeting or conference call), (v) using commercially reasonable efforts to obtain, at our reasonable prior written request, prior to the launch of general syndication of the Facilities (which use of commercially reasonable efforts shall not require you to change the proposed terms of any Facility) (x) public corporate family ratings and/or a public corporate credit rating (but not a specific rating) for the Borrower and (y) public ratings (but not a specific rating) for the Initial Term Facility from each of Moody’s Investors Service, Inc. (“Moody’s”) and Standard & Poor’s Financial Services LLC, a subsidiary of S&P Global Inc. (“S&P”) and (vi) ensuring and, to the extent practical and appropriate and not in contravention of the Voyage Acquisition Agreement, using your commercially reasonable efforts to cause the Target and its subsidiaries to ensure, that, without our prior written consent (such consent not to be unreasonably withheld or delayed), until the expiration of the Syndication Period, there is no competing offering, placement or arrangement of any dollar- or euro-denominated debt securities or syndicated credit facilities (other than the Facilities (or replacement or increase thereof), any debt disclosed to us on or prior to the date hereof (including any such debt referenced in the Target and its subsidiaries’ and Silgan’s financial statements delivered to us on or prior to the date hereof), drawings under any revolving credit facility, any debt permitted to remain outstanding by the Transaction Summary, any debt that the Lead Arrangers agree in writing may remain outstanding, any debt permitted under the Voyage Acquisition Agreement and any refinancing, replacement, extension or renewal of existing debt of the Target or any amendment to any such debt), by or on behalf of Holdings, the Borrower, the Target or any of their respective subsidiaries that would materially and adversely impair the primary syndication of the Facilities (it being agreed that any debt incurred in the ordinary course of business, including, without limitation, deferred purchase obligations, intercompany debt, capital leases, purchase money financings and equipment financings are not restricted by the foregoing).
Notwithstanding anything to the contrary contained in this Commitment Letter or the Fee Letter or any other letter agreement or undertaking concerning the financing of the Transactions, neither the obtaining of the ratings referenced above, nor the commencement or completion of syndication of the Facilities, nor the completion of a Confidential Information Memorandum or other marketing materials nor compliance with any other provision set forth in this Commitment Letter (other than the conditions set forth in the Conditions Exhibit), shall constitute a condition to the commitments hereunder or to the funding of the Facilities on the Closing Date. For the avoidance of doubt, you will not be required to provide any information to the extent the provision thereof would violate any applicable law, rule or regulation, or any confidentiality obligation binding upon, or waive any privilege that may be asserted by, Holdings, the Borrower, the Target, either Sponsor or any of their respective subsidiaries or affiliates or cause competitive harm to the Target, either Sponsor or any of their respective subsidiaries or affiliates if the transactions described in the Transaction Summary are not consummated; provided that, in the event that you do not provide information in reliance on this sentence, you shall provide notice to the Lead
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Arrangers that such information is being withheld and you shall use your commercially reasonable efforts to communicate the applicable information in a way that would not violate the applicable obligation or risk waiver of such privilege. Notwithstanding anything herein to the contrary, the only financial statements that shall be required to be provided in connection with the syndication of the Facilities shall be those required to be delivered pursuant to paragraph 6 of the Conditions Exhibit. We will manage, in consultation with you, all aspects of the syndication of the Facilities, including decisions as to the selection of institutions (subject to your consent, not to be unreasonably withheld or delayed, and subject to the exclusion of Disqualified Institutions) to be approached and when they will be approached, when the Lenders’ commitments will be accepted, which Lenders will participate (subject to your consent, not to be unreasonably withheld or delayed, and subject to the exclusion of Disqualified Institutions), the allocation of the commitments among the Lenders (subject to your rights of appointment in Section 2 above) and the amount and distribution of fees among the Lenders.
You acknowledge that (i) we, on your behalf, will make available the Information Materials to the proposed syndicate of Lenders by posting the Information Materials on SyndTrak or IntraLinks or another similar electronic system and (ii) certain prospective Lenders (such Lenders, “Public Lenders”; all other Lenders, “Private Lenders”) may have personnel that do not wish to receive MNPI (as defined below) with respect to Holdings, the Target and their respective subsidiaries (collectively, the “Relevant Entities”) or the securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such entities’ securities. As used herein, “MNPI” means information about any Relevant Entity and its securities that constitutes material non-public information within the meaning of the United States federal and state securities laws, or, if such Relevant Entity is not a public reporting company, that would have constituted material non-public information within the meaning of the United States federal and state securities laws if such Relevant Entity was a public reporting company (as determined by you in good faith). If we reasonably request, you will use your commercially reasonable efforts to assist us in preparing (and, to the extent practical and appropriate and not in contravention of the Voyage Acquisition Agreement, use commercially reasonable efforts to cause the Target to assist us in preparing) a customary additional version of the Information Materials not containing MNPI (the “Public Information Materials”) to be distributed to prospective Public Lenders.
Before distribution of any Information Materials (i) to prospective Private Lenders, you (or the Target) shall provide us with a customary letter authorizing the dissemination of the Information Materials and (ii) to prospective Public Lenders, you (or the Target) shall provide us with a customary letter consistent with the terms of this Commitment Letter authorizing the dissemination of the Public Information Materials and customarily represent as to the absence of MNPI therein, and in each case exculpating us and our affiliates, the Target and its affiliates and you and your affiliates from any liability related to the use of the contents of the Information Materials by the recipients thereof.
You agree that, subject to the confidentiality and other provisions of this Commitment Letter, we, on your behalf, may distribute the following documents to all prospective Lenders, including prospective Public Lenders, unless you advise us in writing (including by email) within a reasonable time prior to their intended distributions that such material should only be distributed to prospective Private Lenders (provided that you and your counsel shall have been given a reasonable opportunity to review such documents): (i) administrative materials for prospective Lenders such as lender meeting invitations, allocations and funding and closing memoranda, (ii) term sheets and notifications of changes to the Facilities’ terms and (iii) drafts and final versions of the Facilities Documentation. If you advise us that any of the foregoing items should be distributed only to Private Lenders, then we will not distribute such materials to Public Lenders without your prior written consent. You also agree, at our reasonable request, to use commercially reasonable efforts to identify information to be distributed to the Public Lenders by clearly and conspicuously marking the same as “PUBLIC” (it being understood that you shall not be under any obligation to mark any particular portion of the information as “PUBLIC”). By marking any
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documents, information or other data “PUBLIC” you shall be deemed to have authorized the Commitment Parties and the Lenders (subject to the confidentiality and other provisions of this Commitment Letter) to treat such documents, information or other data as not containing MNPI. We shall be entitled to treat all information that is not specifically identified as “PUBLIC” as being suitable only for posting to Private Lenders (other than those documents described in clauses (i), (ii) and (iii) of this paragraph).
| 4. | Information |
You hereby represent (to your knowledge with respect to the Target and its subsidiaries) (but the accuracy of which representation shall not be a condition to the commitments hereunder or to the funding of the Facilities on the Closing Date) that (i) all written factual information (other than the Projections, the Model, other forward-looking information, information of a general economic or general industry nature and all third party memos or reports furnished to us) (such non-excluded items, the “Information”), that has been or will be made available to us by you, either Sponsor or any of your or its representatives in connection with the transactions contemplated hereby, when taken as a whole and together with any public filings by the Target or Silgan relating to the Target and its subsidiaries or Silgan and its subsidiaries, as applicable, does not or will not, when furnished, contain any untrue statement of a material fact or omit to state a material fact necessary in order to make the statements contained therein not materially misleading in light of the circumstances under which such statements are made (after giving effect to all supplements and updates thereto) and (ii) the written financial projections (the “Projections”) contained in the Confidential Information Memorandum have been or will be prepared in good faith based upon assumptions believed by you to be reasonable at the time furnished (it being recognized by the Commitment Parties that such Projections are predictions as to future events and are not to be viewed as facts, are subject to significant uncertainties and contingencies, many of which are beyond your control, that no assurance can be given that any particular financial projections will be realized, that actual results during the period or periods covered by any such Projections may differ significantly from the projected results, and that such differences may be material). You agree that if, at any time prior to the later of (x) the Closing Date and (y) the expiration of the Syndication Period, you become aware that any of the representations in the preceding sentence (to your knowledge with respect to the Target and its subsidiaries), would be incorrect in any material respect if the Information and the Projections were being furnished, and such representations and warranties were being made, at such time, then you will promptly supplement (or, with respect to Information and Projections with respect to the Target and its subsidiaries, subject to any limitation on your rights set forth in the Voyage Acquisition Agreement, use your commercially reasonable efforts to promptly supplement) the Information or the Projections, as applicable, so that such representations are correct in all material respects under those circumstances (or, in the case of any Information or Projections with respect to the Target and its subsidiaries, to your knowledge), and such supplementation shall cure any breach of any such representation. In arranging and syndicating the Facilities we may use and rely on the Information, Projections and other forward-looking information without independent verification thereof and we do not assume responsibility for the accuracy or completeness of the Information, the Projections, the Model and other forward-looking information.
| 5. | Fees |
As consideration for the commitments and agreements of the Commitment Parties hereunder, you agree to pay or cause to be paid the fees described in this Commitment Letter and in the Fee Letter dated the date hereof and delivered herewith (the “Fee Letter”) on the terms and subject to the conditions (including as to timing and amount) set forth herein and therein.
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| 6. | Conditions |
Notwithstanding anything in this Commitment Letter, the Fee Letter, the Facilities Documentation or any other letter agreement or other undertaking concerning the financing of the transactions contemplated hereby to the contrary:
(i) the only conditions to the availability and funding of the Facilities on the Closing Date are those set forth in the Conditions Exhibit and, upon satisfaction (or waiver by the Lead Arrangers) of such conditions, each of the Administrative Agent and the Lenders will execute and deliver the Facilities Documentation to which it is a party and the initial funding of the Facilities shall occur; it being understood and agreed that there are no other conditions (implied or otherwise) to the availability and funding of the Facilities on the Closing Date, including compliance with the terms of this Commitment Letter, the Fee Letter or the Facilities Documentation (other than the conditions set forth in the Conditions Exhibit);
(ii) the only representations and warranties the accuracy of which shall be a condition to the availability and funding of the Facilities on the Closing Date shall be (i)(x) such of the representations and warranties made by the Sellers (as defined in the Voyage Acquisition Agreement) with respect to the Target and its subsidiaries in the Voyage Acquisition Agreement as are material to the interests of the Initial Lenders, but only to the extent that you (or any of your affiliates) have the right (taking into account any applicable cure provisions) to terminate your (or its) obligations under the Voyage Acquisition Agreement or decline to consummate the Acquisition without liability to you (or your applicable affiliates) (in each case, in accordance with the terms of the Voyage Acquisition Agreement) as a result of a breach of such representations and warranties in the Voyage Acquisition Agreement without any liability to you and (y) such of the representations and warranties made by SHI (as defined in the JV Acquisition Agreement) with respect to the MetalCo Business in the JV Acquisition Agreement as are material to the interests of the Initial Lenders, but only to the extent that you (or any of your affiliates) have the right (taking into account any applicable cure provisions) to terminate your (or its) obligations under the JV Acquisition Agreement or decline to consummate the JV Acquisition without liability to you (or your applicable affiliates) (in each case, in accordance with the terms of the JV Acquisition Agreement) as a result of a breach of such representations and warranties in the JV Acquisition Agreement without any liability to you (collectively, the “Specified Acquisition Agreement Representations”) and (ii) the Specified Representations (as defined below) (the representations described in clauses (i) and (ii) being the “Closing Date Representations”); and
(iii) the terms of the Facilities Documentation and any closing deliverables shall be in a form such that they do not impair the availability or funding of the Facilities on the Closing Date if the conditions set forth in the Conditions Exhibit are satisfied (or waived by the Lead Arrangers) (it being understood that, to the extent any Collateral (including the creation or perfection of any security interest) is not or cannot be provided on the Closing Date (other than the perfection of liens on Collateral that may be perfected by the filing of financing statements under the UCC and the delivery of stock certificates of the Borrower and its wholly-owned material domestic restricted subsidiaries (in each case, to the extent certificated) evidencing the equity interests required to be pledged pursuant to the Term Sheet with respect to which a lien may be perfected by the delivery of a stock or equivalent certificate, but, with respect to such restricted subsidiaries acquired pursuant to the Acquisition, only to the extent received at least two business days prior to the Closing Date after use of commercially reasonable efforts to do so) after your use of commercially reasonable efforts to do so or without undue burden or expense, then the provision of any such Collateral (including the creation or perfection of any security interest) shall not constitute a condition precedent to the availability or funding of the Facilities on the Closing Date, but may instead be provided within 90 days after the Closing Date pursuant to arrangements to be mutually agreed, subject to such extensions as are reasonably agreed by the Administrative Agent).
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“Specified Representations” means the representations and warranties set forth in the Facilities Documentation relating to: incorporation or formation of the Loan Parties; organizational power and authority of the Loan Parties to execute, deliver and perform under the Facilities Documentation; due authorization, execution, delivery and enforceability of the Facilities Documentation; solvency of the Borrower and its restricted subsidiaries on a consolidated basis after giving effect to the Transactions (to be determined in a manner consistent with the solvency certificate in the form attached as Annex I to the Conditions Exhibit); no conflicts of the Facilities Documentation (limited to the execution, delivery and performance of the Facilities Documentation, incurrence of the debt thereunder and the granting of guarantees and security interests in respect thereof) with charter documents of the Loan Parties; Federal Reserve margin regulations; the Investment Company Act; use of proceeds of the Facilities not violating the FCPA, the PATRIOT Act and OFAC; and the creation, validity and perfection of the security interests granted in UCC Article 9 collateral to be perfected on the Closing Date (subject in all respects to customary permitted liens and the foregoing provisions of this Section 6). Notwithstanding anything to the contrary contained herein, if any of the Closing Date Representations is qualified or subject to “material adverse effect”, the definition of “Material Adverse Effect” in either Acquisition Agreement shall apply for the purposes of any representations and warranties made, or to be made, on or as of the Closing Date.
This Section 6, and the provisions herein, shall be referred to as the “Limited Conditionality Provision”.
| 7. | Indemnification and Expenses |
You agree, if the Closing Date occurs, to reimburse the Commitment Parties, on the Closing Date, upon presentation of a summary statement, together with any supporting documentation reasonably requested by you, for all reasonable out-of-pocket fees and expenses (provided that (i) legal fees will be limited to the reasonable fees, disbursements and other charges of one counsel to the Lead Arrangers, taken as a whole (and, if necessary, of one local counsel in each relevant material jurisdiction, in each case, to such persons taken as a whole) and (ii) in the case of any other advisors or consultants, such expense reimbursement obligations shall be limited solely to advisors or consultants approved by you) incurred in connection with the Facilities, the syndication thereof and the preparation, negotiation and execution of the Facilities Documentation. You acknowledge that we may receive a benefit, including without limitation, a discount, credit or other accommodation, from any of such counsel based on the fees such counsel may receive on account of their relationship with us including, without limitation, fees paid pursuant hereto.
You agree to indemnify and hold harmless each of the Commitment Parties (in their roles as Commitment Parties) and their respective affiliates (other than any Excluded Party and any Related Party of such Excluded Party in its capacity as such) and controlling persons and their respective directors, officers, employees, members, agents, advisors and other representatives, successors and assigns (in each case, in respect of any Commitment Party in its capacity as such) (each an “Indemnified Party”; and, in the case of any Commitment Party, any such other Indemnified Party related to such Commitment Party shall be referred to as a “Related Party” of such Commitment Party), within 30 days of a written demand therefor, together with backup documentation supporting such indemnity request, from and against all claims, damages, liabilities and reasonable out-of-pocket expenses (provided that legal fees, disbursements and other charges will be limited to the reasonable fees, disbursements and other charges of (i) one counsel to the Indemnified Parties taken as a whole, (ii) if necessary, one local counsel in each relevant material jurisdiction to the Indemnified Parties taken as a whole and (iii) in the case of any actual or perceived conflict of interest, after the affected person(s) notifies you of such conflict, one additional counsel and, if necessary, one additional local counsel in each relevant material jurisdiction to the affected Indemnified Parties taken as a whole), that may be incurred by or asserted or awarded against any Indemnified Party, in
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each case arising out of or in connection with or by reason of any investigation, litigation or proceeding (each, a “Proceeding”) in connection with the Transactions or the Facilities (or any use made or proposed to be made with the proceeds thereof), in each case except to the extent such claim, damage, liability or expense (x) arises from a dispute that does not involve any action or omission by you or any of your affiliates and is solely among the Indemnified Parties (other than any claims against an Indemnified Party in its capacity as an Administrative Agent or a Lead Arranger) or (y) is found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from the bad faith, gross negligence or willful misconduct of such Indemnified Party or any of its Related Parties or a material breach by such Indemnified Party or any of its Related Parties of its obligations hereunder or under the Facilities Documentation. In the case of a Proceeding to which the indemnity in this paragraph applies, such indemnity shall be effective whether or not such Proceeding is brought by you, your equityholders or creditors or an Indemnified Party, whether or not an Indemnified Party is otherwise a party thereto and whether or not any aspect of the Transactions is consummated. The foregoing provisions of this paragraph shall be superseded to the extent covered by the applicable provisions of the Facilities Documentation upon execution thereof and thereafter shall have no further force and effect.
In case any Proceeding is instituted involving any Indemnified Party for which indemnification is to be sought hereunder by such Indemnified Party, then such Indemnified Party will promptly notify you of the commencement of any Proceeding; provided, however, that the failure to so notify you will not relieve you from any liability that you may have to such Indemnified Party pursuant to this section, except to the extent that you are materially prejudiced by such failure.
No Indemnified Party shall have any liability (whether direct or indirect, in contract or tort or otherwise) to you or your subsidiaries or affiliates or to your or their respective equityholders or creditors arising out of, related to or in connection with any aspect of the Transactions, except to the extent of direct, as opposed to special, indirect, consequential or punitive, damages determined in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from the bad faith, gross negligence or willful misconduct of such Indemnified Party or any of its Related Parties or a material breach by such Indemnified Party or any of its Related Parties of its obligations under this Commitment Letter or the Facilities Documentation. Notwithstanding anything herein to the contrary, none of you, your direct or indirect equityholders, the Sponsors, the other Investors, the Target or any of your or their affiliates shall be liable for any special, indirect, consequential or punitive damages (whether direct or indirect, in contract or tort or otherwise) arising out of, related to or in connection with, this Commitment Letter, the Fee Letter or any aspect of the Transactions; provided that nothing contained in this sentence shall limit your indemnification and reimbursement obligations to the extent such special, indirect, consequential or punitive damages are included in any third party claim with respect to which such Indemnified Party is entitled to indemnification hereunder.
No Indemnified Party shall be liable for any damages arising from the use by others of information or other materials obtained through electronic telecommunications or other information transmission systems, other than for direct or actual damages resulting from the bad faith, gross negligence or willful misconduct of such Indemnified Party or any of its Related Parties, in each case as determined by a final and non-appealable judgment of a court of competent jurisdiction.
You shall not be liable for any settlement, compromise or consent to the entry of any judgment in any Proceeding (or expenses related thereto) effected without your written consent (which consent shall not be unreasonably withheld or delayed), but if settled, compromised or consented to with your written consent, or if there is a final and non-appealable judgment by a court of competent jurisdiction in any such Proceeding, you agree to indemnify and hold harmless each Indemnified Party in the manner and to the extent set forth above. You shall not effect any settlement of any pending or threatened proceedings in respect of which indemnity has been sought hereunder by an Indemnified Party without the prior written
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consent of such Indemnified Party (which consent shall not be unreasonably withheld, conditioned or delayed) unless such settlement (i) includes an unconditional release of such Indemnified Party in form and substance reasonably satisfactory to such Indemnified Party from all liability or claims that are the subject matter of such proceedings and (ii) does not include any statement as to or any admission of fault by or on behalf of any Indemnified Party.
Each Indemnified Party shall be severally obligated to refund or return any and all amounts paid by you or any of your affiliates under this Section 7 to the extent such Indemnified Party is not entitled to payment of such amounts in accordance with the terms hereof, as determined by a final and non-appealable judgment of a court of competent jurisdiction.
| 8. | Sharing of Information, Absence of Fiduciary Relationship, Affiliate Activities |
You acknowledge that each Commitment Party (together with its affiliates, each a “Financial Institution”) is a full service securities firm engaged, either directly or through affiliates, in various activities, including securities trading, investment banking and financial advisory, investment management, principal investment, hedging, financing and brokerage activities and financial planning and benefits counseling for both companies and individuals. The Financial Institutions may have economic interests that conflict with those of you, the Target and your and its respective affiliates. In the ordinary course of these activities, each Financial Institution may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative securities) and/or financial instruments (including bank loans) for its own account and for the accounts of its customers and may at any time hold long and short positions in such securities and/or instruments. Such investment and other activities may involve securities and instruments of you, the Target and your and its affiliates, as well as of other entities and persons and their affiliates which may (i) be involved in transactions arising from or relating to the engagement contemplated by this Commitment Letter, (ii) be customers or competitors of you, the Target or your or its respective subsidiaries or affiliates or (iii) have other relationships with you, the Target or your or its respective subsidiaries or affiliates. With respect to any securities and/or instruments so held by any Financial Institution or any of its customers, all rights in respect of such securities and instruments, including any voting rights, will be exercised by the holder of the rights, in its sole discretion. In addition, the Financial Institutions may provide investment banking, underwriting and/or financial advisory services to such other entities and persons. The Financial Institutions may also co-invest with, make direct investments in, and invest or co-invest client monies in or with funds or other investment vehicles managed by other parties, and such funds or other investment vehicles may trade or make investments in securities of you or the Target or such other entities. The transactions contemplated by this Commitment Letter may have a direct or indirect impact on the investments, securities or instruments referred to in this paragraph.
The Financial Institutions, in the course of such other activities and relationships, may acquire information about the transactions contemplated by this Commitment Letter or other entities and persons which may be the subject of the financing contemplated by this Commitment Letter. None of the Financial Institutions and none of their respective affiliates will use confidential information obtained from you or your affiliates or on your or their behalf by virtue of the transactions contemplated hereby in connection with the performance by the Financial Institutions of services for other companies or other persons and none of the Financial Institutions will furnish any such information to any of their other customers. You also acknowledge that the Financial Institutions have no obligation to use in connection with the transactions contemplated hereby, or to furnish to you, confidential information obtained from other companies or other persons.
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You further acknowledge and agree that (i) no fiduciary, advisory or (except as expressly provided in the Facilities Documentation) agency relationship between you and the Financial Institutions is intended to be or has been created in respect of any of the transactions contemplated by this Commitment Letter, irrespective of whether the Financial Institutions have advised or are advising you on other matters, (ii) the Financial Institutions, on the one hand, and you, on the other hand, have an arm’s length business relationship that does not directly or indirectly give rise to, nor do you rely on, any fiduciary duty on the part of the Financial Institutions (and you hereby waive and release, to the fullest extent permitted by law, any claims that you may have against the Commitment Parties and their respective affiliates with respect to any breach or alleged breach of fiduciary duty and agree that no Commitment Party shall have any liability (whether direct or indirect) to you in respect of such fiduciary duty claim or to any person asserting a fiduciary duty on behalf of or in right of you, including your equity holders, employees or creditors, in each case in connection with the transactions contemplated by this Commitment Letter), (iii) you are capable of evaluating and understanding, and you understand and accept, the terms, risks and conditions of the transactions contemplated by this Commitment Letter and (iv) you have been advised that the Commitment Parties are engaged in a broad range of transactions that may involve interests that differ from your interests and that the Financial Institutions have no obligation to disclose such interests and transactions to you by virtue of any fiduciary, advisory or agency relationship. In addition, please note that the Commitment Parties do not provide accounting, tax, investment, regulatory or legal advice.
An affiliate of Goldman Sachs and an affiliate of Wells Fargo Securities have been retained by you as a financial advisor (each, in such capacity, a “Buy Side Advisor”) in connection with the Acquisition, and BofA Securities and/or its affiliates have been retained by you as a financial advisor (in such capacity, the “Financial Advisor” and, together with any Buy Side Advisor, each a “Retained Advisor”) in connection with the Transactions. You agree to such retentions, and further agree not to assert any claim you might allege based on any actual or potential conflicts of interest that might be asserted to arise or result from, on the one hand, the engagement of any Retained Advisor and/or its respective affiliates’ arranging or providing or contemplating arranging or providing financing for a competing bidder and, on the other hand, our and our respective affiliates’ relationships with you described and referred to herein. You acknowledge that, in such capacity, any Retained Advisor may advise you in other manners adverse to the interests of the parties hereto. Each of the Commitment Parties party hereto acknowledges (i) that an affiliate of Goldman Sachs has been retained as a Buy Side Advisor and (ii) that such relationship does not create any fiduciary duties or fiduciary responsibilities to such Commitment Party on the part of such entities or their affiliates.
Except as expressly set forth above, this Section 8 shall not apply to or modify or otherwise affect any arrangement with any advisor (including any financial advisor) separately retained by you, the Sponsors or any of your or its affiliates in connection with the Acquisition, in its capacity as such.
| 9. | Confidentiality |
This Commitment Letter is delivered to you on the understanding that (i) you shall not disclose, directly or indirectly, to any other person the Fee Letter or the contents thereof or, prior to your acceptance hereof, the Commitment Letter or the contents hereof, except (a) to the Sponsors and the other Investors, the Sellers (as defined in the Voyage Acquisition Agreement), the Target and its subsidiaries, potential equity investors (including rollover investors), your and their respective affiliates and your and their respective officers, directors, employees, members, partners, stockholders, attorneys, accountants, auditors, agents and advisors, in each case, on a confidential basis, unless, in each case, the Commitment Parties otherwise consent in writing (such consent not to be unreasonably withheld) (provided that any disclosure of the Fee Letter or its terms or substance to the Sellers (as defined in the Voyage Acquisition Agreement), the Target or their respective officers, directors, employees, affiliates, members, partners, stockholders, attorneys, accountants, auditors, agents or advisors shall be redacted in respect of the amounts, percentages and basis points of fees set forth therein), (b) (1) in any legal, judicial or
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administrative proceeding or as otherwise required by law, court order, order of any administrative agency, regulation or any compulsory legal process or as requested by a governmental authority (in which case you agree, to the extent practicable and permitted by law, to inform us promptly in advance thereof and, to the extent you may legally and practically do so, allow us a reasonable opportunity to object to such disclosure in such proceeding or process) or (2) to the extent necessary in connection with the exercise of any remedy or enforcement of any rights hereunder or under the Fee Letter, (c) you may disclose the Fee Letter and the contents thereof to (1) after your acceptance hereof, actual and potential Additional Arrangers, who have agreed to be bound by confidentiality restrictions with respect thereto on substantially the same terms set forth in the next paragraph, and their respective officers, directors, employees, affiliates, members, partners, stockholders, attorneys, accountants, auditors, agents and advisors and (d) you may disclose the aggregate fee amount contained in the Fee Letter as part of the Projections, pro forma information or a generic disclosure of aggregate sources and uses related to fee amounts related to the Transactions to the extent customary or required in offering and marketing materials for the Facilities or in any public or regulatory filing requirement related to the Transactions and (ii) the Commitment Letter and the contents hereof may be disclosed (a) on a confidential basis to actual and potential Lenders and Additional Arrangers and their respective officers, directors, employees, affiliates, members, partners, stockholders, attorneys, accountants, auditors, agents and advisors and to any rating agency in connection with the Transactions, (b) in any syndication of the Facilities (including in any Confidential Information Memorandum) or in any proxy statement or other public or regulatory filing in connection with the Transactions, (c) to the extent such information becomes publicly available other than by reason of improper disclosure by you in violation of any confidentiality obligations hereunder or (d) as may be required by the rules, regulations, schedules and forms of the Securities and Exchange Commission in connection with any filings with the Securities and Exchange Commission. The obligations under this paragraph with respect to this Commitment Letter (but not the Fee Letter) shall terminate on the earlier of (i) to the extent covered thereby, the execution and delivery of the Facilities Documentation and (ii) the first anniversary of the date hereof.
Each Commitment Party, on behalf of itself and its affiliates, shall use all information received by it or them from (or on behalf of) you or either Sponsor in connection with the Acquisitions and the related transactions (including any information obtained by it or them based on a review of any books and records relating to Holdings, the Borrower or the Target or any of their respective subsidiaries or affiliates) solely for the purposes of providing the services that are the subject of this Commitment Letter and shall treat confidentially all such information and shall not publish, disclose or otherwise divulge such information; provided that nothing herein shall prevent any Commitment Party from disclosing any such information (other than to a Disqualified Institution) (i) in coordination with you, to rating agencies on a confidential basis in connection with the Transactions, (ii) to any actual or prospective Lenders, participants or direct or indirect contractual counterparties to any swap or derivative transaction relating to the Borrower or any of its subsidiaries or its obligations under the Facilities, in each case, who are advised of the confidential nature of such information and agree to keep such information confidential (provided that no such disclosure shall be made to any Disqualified Institution), (iii) to the extent compelled by legal process in, or reasonably necessary to, the defense of such legal, judicial or administrative proceeding, in any legal, judicial or administrative proceeding or otherwise as required by applicable law, rule or regulation (in which case such Commitment Party shall promptly notify you, in advance, to the extent permitted by law (and if such Commitment Party is unable to notify you in advance of such disclosure, such notice shall be delivered to you promptly thereafter to the extent permitted by law) and, to the extent such Commitment Party may legally and practically do so, allow you a reasonable opportunity to object to such disclosure in such proceeding or process, and in any event use commercially reasonable efforts to ensure that any such information so disclosed is accorded confidential treatment), (iv) upon the request or demand of any regulatory authority (including any self-regulatory authority) having jurisdiction over such Commitment Party or its affiliates (in which case such Commitment Party shall, except with respect to any routine or ordinary course audit or examination conducted by bank
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accountants or any regulatory authority or self-regulatory authority exercising examination or regulatory authority, promptly notify you, in advance, to the extent permitted by law (and if such Commitment Party is unable to notify you in advance of such disclosure, such notice shall be delivered to you promptly thereafter to the extent permitted by law) and, to the extent such Commitment Party may legally and practically do so, allow you a reasonable opportunity to object to such disclosure, and in any event use commercially reasonable efforts to ensure that any such information so disclosed is accorded confidential treatment), (v) on a confidential “need to know” basis and solely in connection with the transactions contemplated hereby, to the employees, directors, legal counsel, independent auditors, professionals and other experts or agents of such Commitment Party (collectively, “Representatives”) who are informed of the confidential nature of such information and agree to keep information of this type confidential in accordance with customary practices for syndicated loans (provided that such Commitment Party shall be responsible for its Representatives’ compliance with this paragraph), (vi) on a confidential “need to know” basis and solely in connection with the transactions contemplated hereby, to any of its respective affiliates (provided that no such disclosure shall be made to any affiliates that are engaged as principals primarily in private equity, mezzanine financing or venture capital or that are engaged directly or indirectly in a sale of the Target and its subsidiaries as sell-side representative or any such affiliate’s Representatives including those providing advisory services, in each case other than a limited number of senior employees who are required, in accordance with industry regulations or such Commitment Party’s internal policies and procedures, to act in a supervisory capacity and such Commitment Party’s internal legal, compliance, risk management, credit and investment committee members (each, an “Excluded Party”)) or their Representatives (who are informed of the confidential nature of such information and agree to keep information of this type confidential in accordance with customary practices for syndicated loans) (provided that such Commitment Party shall be responsible for its affiliates’ and Representatives’ compliance with this paragraph), (vii) to the extent any such information becomes publicly available other than by reason of disclosure by any Commitment Party, its affiliates or its or their Representatives in violation of any confidentiality obligations owing to you, either Sponsor, the Target and its subsidiaries, the Sellers or any of your or their respective subsidiaries (including those set forth in this paragraph), (viii) to the extent such information was already in the possession of the Commitment Parties (except to the extent received in a manner restricted by this paragraph) or is independently developed by the Commitment Parties or their respective affiliates based exclusively on information the disclosure of which would not otherwise be restricted by this paragraph, (ix) to the extent such information was received by any Commitment Party from a third party that to such Commitment Party’s knowledge is not subject to confidentiality obligations owing to you, either Sponsor, the Target, Sellers or any of your or their respective subsidiaries, (x) to the extent applicable and reasonably necessary or advisable, for purposes of establishing a “due diligence” defense and (xi) to market data collectors, similar services providers to the lending industry, and service providers to the Lead Arrangers and the Lenders in connection with the administration and management of the Facilities; provided that the disclosure of any such information to any Lenders or prospective Lenders, participants or prospective participants or contractual counterparties, in each case referred to in clause (ii) above shall be made subject to the acknowledgment and acceptance by such Lender or prospective Lender, participant or prospective participant or such counterparty that such information is being disseminated on a confidential basis (on substantially the terms set forth in this paragraph or as is otherwise reasonably acceptable to you and each Commitment Party, including, without limitation, as agreed in the Confidential Information Memorandum or other marketing materials) in accordance with the standard syndication processes of such Commitment Party or customary market standards for dissemination of such type of information. In no event shall any disclosure of information referred to above be made to any Excluded Party or Disqualified Institution. The obligations of the Commitment Parties under this Section 9 shall remain in effect until the earlier of (a) the second anniversary of the date hereof and (b) the date the definitive Facilities Documentation is entered into by the Commitment Parties, at which time any confidentiality undertaking in the definitive Facilities Documentation shall supersede this provision. Notwithstanding anything in this Section 9 to the contrary, we may place advertisements in financial and other newspapers
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and periodicals or on a home page or similar place for dissemination of information on the Internet or World Wide Web as we may choose, and circulate similar promotional materials, after the closing of the Transactions in the form of a “tombstone” or otherwise describing the names of you, the Borrower and your and its affiliates (or any of them), and the amount, type and closing date of the Transactions, all at our expense and with your prior approval.
For the avoidance of doubt, nothing in this confidentiality provision shall prohibit any person from voluntarily disclosing or providing any information within the scope of this confidentiality provision to any governmental, regulatory or self-regulatory organization (any such entity, a “Regulatory Authority”) to the extent that any such prohibition on disclosure set forth in this confidentiality provision shall be prohibited by the laws or regulations applicable to such Regulatory Authority.
| 10. | Miscellaneous |
This Commitment Letter, the Fee Letter and the commitments hereunder shall not be assignable by any party hereto (except by (i) you to (a) a newly formed shell company that is an affiliate controlled directly or indirectly by the Sponsors to effect the consummation of the Acquisition and is organized under the laws of the District of Columbia, any state of the United States or any other jurisdiction reasonably agreed by the Commitment Parties, (b) the Target or, with the consent (not to be unreasonably withheld or delayed) of the Commitment Parties, a wholly-owned subsidiary or direct or indirect parent of the Target (in each case, as a matter of law or otherwise substantially simultaneously with the consummation of the Acquisition on the Closing Date), (c) the Borrower, in each case immediately prior to or otherwise substantially concurrently with the consummation of the Acquisition or (d) Silgan or (ii) a Commitment Party to an Additional Arranger as expressly set forth in Section 2) without the prior written consent (such consent not to be unreasonably withheld or delayed) of each other party hereto (and any purported assignment without such consent shall be null and void) (provided that Goldman Sachs may assign its commitments and agreements hereunder and under the Fee Letter to Goldman Sachs Lending Partners LLC), is intended to be solely for the benefit of the parties hereto, the Sponsors and the Indemnified Parties and is not intended to and does not confer any benefits upon, or create any rights in favor of, any person other than the parties hereto and the Indemnified Parties to the extent expressly set forth herein, except to the extent that you and we otherwise agree in writing.
Subject to Section 3 above, the Commitment Parties reserve the right to employ the services of their affiliates or branches (other than any Disqualified Institution) in providing services contemplated hereby (and, in connection with such employment, the Commitment Parties may, subject to the confidentiality provisions hereof, exchange with such affiliates or branches information concerning you and your affiliates in connection with the Transactions and, to the extent so employed, such affiliates and branches shall be entitled to the benefits afforded to the Commitment Parties hereunder) and to allocate, in whole or in part, to their affiliates the fees payable to the Commitment Parties in such manner as the Commitment Parties and their affiliates may agree in their sole discretion, but no Commitment Party shall be relieved of its obligations under this Commitment Letter. Neither this Commitment Letter nor the Fee Letter may be amended or any provision hereof waived or modified except by an instrument in writing signed by you and each party hereto or thereto. Each of the parties hereto agrees that (x) this Commitment Letter is a binding and enforceable agreement with respect to the subject matter contained herein (except as may be limited by applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness, good faith and fair dealing and equitable principles of general applicability), it being understood and agreed that the commitments to provide the Facilities are subject to the conditions set forth in the Conditions Exhibit (and no other conditions) and (y) the Fee Letter is a binding and enforceable agreement with respect to the subject matter contained therein (except as may be limited by applicable bankruptcy, insolvency and similar laws affecting creditors’ rights generally, concepts of reasonableness, good faith and fair dealing and equitable principles of general applicability); provided that nothing contained in this Commitment Letter obligates you or any of your affiliates to consummate any portion of the Transactions.
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Section headings used herein are for convenience of reference only and are not to affect the construction of, or to be taken into consideration in interpreting, this Commitment Letter. This Commitment Letter may be executed in any number of counterparts, each of which shall be an original, and all of which, when taken together, shall constitute one agreement. Delivery of an executed signature page of this Commitment Letter by facsimile or electronic transmission (e.g., “.pdf” or “.tif”) shall be effective as delivery of a manually executed counterpart hereof. The words “execution”, “signed”, “signature”, “delivery”, and words of like import in this Commitment Letter shall be deemed to include electronic signatures or electronic records, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act.
This Commitment Letter and the Fee Letter are the only agreements that have been entered into among us and you with respect to the Facilities and set forth the entire understanding of the parties with respect thereto. This Commitment Letter shall be governed by, and construed and interpreted in accordance with, the laws of the State of New York; provided that (i) the interpretation of a “Material Adverse Effect” (as defined in each Acquisition Agreement) and whether a “Material Adverse Effect” has occurred, (ii) the accuracy of any Specified Acquisition Agreement Representation and whether as a result of any inaccuracy thereof you or your applicable affiliate has the right or would have the right (taking into account any applicable cure provisions) to terminate your (or its) obligations (or to refuse to consummate the Acquisition and/or the JV Acquisition) under the applicable Acquisition Agreement without any liability to you (or your applicable affiliates) and (iii) whether the applicable Acquisition has been consummated in accordance with the terms of the applicable Acquisition Agreement, will be governed by, and construed and enforced in accordance with, the internal Laws (as defined in the applicable Acquisition Agreement) of the State of Delaware, including its statute of limitations, without regard to any borrowing statute that would result in the application of the statutes of limitations or repose of any other jurisdiction (in furtherance of the foregoing, the Laws (as defined in the applicable Acquisition Agreement) of the State of Delaware will control even if under such jurisdiction’s choice of law or conflict of law analysis, the substantive or procedural Law (as defined in the applicable Acquisition Agreement) of some other jurisdiction would ordinarily or necessarily apply).
You and we hereby irrevocably and unconditionally submit to the exclusive jurisdiction of any New York State or, to the fullest extent permitted under applicable law, federal court sitting in the Borough of Manhattan in The City of New York over any suit, action or proceeding arising out of or relating to the Transactions or the other transactions contemplated hereby, this Commitment Letter or the Fee Letter or the performance of services hereunder or thereunder and agree that any such suit, action or proceeding shall be brought in such courts. Service of any process, summons, notice or document by registered mail addressed to you or us shall be effective service of process for any suit, action or proceeding brought in any such court. You and we hereby irrevocably and unconditionally waive, to the fullest extent permitted under applicable law, any objection to the laying of venue of any such suit, action or proceeding brought in any such court and any claim that any such suit, action or proceeding has been brought in any inconvenient forum. You and we hereby irrevocably agree to waive, to the fullest extent permitted under applicable law, trial by jury in any suit, action, proceeding, claim or counterclaim brought by or on behalf of any party related to or arising out of the Transactions, this Commitment Letter or the Fee Letter or the performance of the agreements hereunder or thereunder. A final judgment in any such suit, action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
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Each of the Commitment Parties hereby notifies you that, pursuant to the requirements of the USA PATRIOT Act, Title III of Pub. L. 107-56 (signed into law on October 26, 2001) (as amended, the “PATRIOT Act”) and the requirements of 31 C.F.R. §1010.230 (the “Beneficial Ownership Regulation”), it and each Lender is required to obtain, verify and record information that identifies the Borrower and each Guarantor, which information includes names, addresses, tax identification numbers and other information that will allow such Commitment Party and such Lender to identify the Borrower and each Guarantor in accordance with the PATRIOT Act and the Beneficial Ownership Regulation. This notice is given in accordance with the requirements of the PATRIOT Act and the Beneficial Ownership Regulation and is effective for the Commitment Parties and each Lender. You hereby acknowledge and agree that the Commitment Parties shall be permitted to share any or all such information with the Lenders.
The survival, indemnification, expense reimbursement (if applicable in accordance with the terms hereof and the Fee Letter), jurisdiction, waiver of jury trial, governing law, service of process, venue, absence of fiduciary duty, affiliate activities, syndication, information and confidentiality provisions contained herein shall remain in full force and effect regardless of whether definitive financing documentation shall be executed and delivered and notwithstanding the termination of this Commitment Letter or the commitments hereunder; provided that your obligations under this Commitment Letter (other than your obligations with respect to confidentiality of the Fee Letter and the contents thereof) shall automatically terminate and be superseded by the provisions of the Facilities Documentation upon the initial funding thereunder, and you shall automatically be released from all liability in connection therewith at such time. You may terminate this Commitment Letter and the commitments of the Commitment Parties hereunder with respect to any Facility (or a portion thereof pro rata among the Commitment Parties under such Facility) at any time upon written notice to the Commitment Parties from you, subject to your surviving obligations as set forth in this paragraph. In addition, in the event that a lesser amount of indebtedness is required to fund the Transactions for any reason, you may reduce the Initial Lenders’ commitments with respect to any Facility (on a pro rata basis amongst the Initial Lenders) in a manner consistent with the allocation of purchase price reduction described under paragraph 1 of the Conditions Exhibit.
If the foregoing correctly sets forth our agreement, please indicate your acceptance of the terms of this Commitment Letter and the Fee Letter by returning to us executed counterparts of this Commitment Letter and the Fee Letter not later than 11:59 p.m., New York City time, on October 30, 2026. This offer will automatically expire at such time if we have not received such executed counterparts in accordance with the preceding sentence (the date of receipt by us of such executed counterparts, the “Acceptance Date”). In the event that the initial borrowing in respect of the Initial Term Facility does not occur on or before the Expiration Time (as defined below), then this Commitment Letter and the commitments hereunder shall automatically terminate unless we shall, in our discretion, agree to an extension. “Expiration Time” means 11:59 p.m., New York City time, on the day that is the earliest of (i) the Closing Date, (ii) the valid termination by you or your affiliates, or with the consent of you or your affiliates, of either Acquisition Agreement in accordance with its terms prior to the closing of the Acquisition and the JV Acquisition, and (iii) five business days following the Termination Date (as defined in, and as may be extended pursuant to, each Acquisition Agreement as in effect on the date hereof, without giving effect to the last sentence of Section 12.13(a) of the Voyage Acquisition Agreement); provided that the termination of any commitment pursuant to this sentence does not, subject to the other provisions of this Commitment Letter, prejudice your rights and remedies in respect of any prior breach or repudiation of this Commitment Letter.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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We are pleased to have been given the opportunity to assist you in connection with this important financing.
| Very truly yours, | ||
| WELLS FARGO BANK, NATIONAL ASSOCIATION | ||
| By: | /s/ Matthew Perrizo | |
| Name: Matthew Perrizo | ||
| Title: Managing Director | ||
| WELLS FARGO SECURITIES, LLC | ||
| By: | /s/ Robert Fallon | |
| Name: Robert Fallon | ||
| Title: Vice President | ||
[Signature Page to Commitment Letter]
| GOLDMAN SACHS BANK USA | ||
| By: | /s/ Robert Ehudin | |
| Name: Robert Ehudin | ||
| Title: Authorized Signatory | ||
[Signature Page to Commitment Letter]
| ROYAL BANK OF CANADA | ||
| By: | /s/ Michael Heuff | |
| Name: |
Michael Heuff | |
| Title: | Managing Director, Global Co-Head, Leveraged Finance & Capital Markets | |
[Signature Page to Commitment Letter]
| DEUTSCHE BANK AG NEW YORK BRANCH | ||
| By: | /s/ Edwin Roland | |
| Name: Edwin Roland | ||
| Title: Managing Director | ||
| By: | /s/ Ryan Corning | |
| Name: Ryan Corning | ||
| Title: Managing Director | ||
| DEUTSCHE BANK SECURITIES INC. | ||
| By: | /s/ Edwin Roland | |
| Name: Edwin Roland | ||
| Title: Managing Director | ||
| By: | /s/ Ryan Corning | |
| Name: Ryan Corning | ||
| Title: Managing Director | ||
[Signature Page to Commitment Letter]
| BANK OF AMERICA, N.A. | ||
| By: | /s/ Elizabeth Gretz | |
| Name: Elizabeth Gretz | ||
| Title: Managing Director | ||
| BOFA SECURITIES, INC. | ||
| By: | /s/ Elizabeth Gretz | |
| Name: Elizabeth Gretz | ||
| Title: Managing Director | ||
[Signature Page to Commitment Letter]
The provisions of this Commitment Letter
are accepted and agreed to as of the date
first written above:
| Silgan Metal Packaging LLC | ||
| By: | /s/ Frank W. Hogan, III | |
| Name: | Frank W. Hogan, III | |
| Title: | Vice President and Secretary | |
[Signature Page to Commitment Letter]
COMMITMENTS SCHEDULE
| Initial Lender(s) |
Initial Term Facility Commitment Percentage(s) |
Revolving Facility Commitment Percentage(s) |
||||||
| Wells Fargo Bank, National Association |
22.670 | % | 22.670 | % | ||||
| Goldman Sachs Bank USA |
22.670 | % | 22.670 | % | ||||
| Royal Bank of Canada |
22.670 | % | 22.670 | % | ||||
| Deutsche Bank AG New York Branch |
17.000 | % | 17.000 | % | ||||
| Bank of America |
14.990 | % | 14.990 | % | ||||
|
|
|
|
|
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| Total: |
100.000 | % | 100.000 | % | ||||
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EXHIBIT A
Project Voyage
Senior Secured Initial Term Facility
Senior Secured Revolving Facility
TRANSACTION SUMMARY
Capitalized terms used but not defined in this Transaction Summary shall have the meanings set forth in the other Exhibits and Annexes (including the Definitions Annex) to the Commitment Letter to which this Transaction Summary is attached (the “Commitment Letter”) or in the Commitment Letter. In the case of any such capitalized term that is subject to multiple and differing definitions, the appropriate meaning thereof in this Transaction Summary shall be determined by reference to the context in which it is used.
Silgan Metal Packaging LLC, a Delaware limited liability company (the “Borrower”, and in its capacity as the “Buyer” under and as defined in the Voyage Acquisition Agreement, the “Buyer”), formed at the direction of Silgan Holdings Inc., a Delaware corporation (“Silgan”), and American Industrial Partners and its affiliates (collectively with the funds, partnerships or other co-investment vehicles managed, advised or controlled thereby, “AIP” and, together with Silgan, the “Sponsors”) and certain limited partners of AIP or other investors (which may include existing shareholders, board members, management and/or other rollover investors of the Target referred to below) (collectively with the Sponsors, the “Investors”), intends to, directly or indirectly, acquire (the “Acquisition”) all of the issued and outstanding capital stock of Trivium Packaging B.V., a private company with limited liability under the laws of the Netherlands (the “Target”), pursuant to that certain Share Purchase Agreement, dated as of the date hereof (together with the schedules and exhibits thereto, and as may be amended, modified, supplemented or waived from time to time in accordance with the Conditions Exhibit, the “Voyage Acquisition Agreement”), by and among the Buyer, the Target, Exal Holdings International Parent B.V., a private company with limited liability under the laws of the Netherlands, the Sellers (as defined therein) and the Seller Representative (as defined therein).
In connection therewith, it is intended that:
(a) On or prior to the Closing Date (as defined below), (i) Silgan will transfer (the “JV Contribution”), directly or indirectly, its ownership in the business previously identified by us to you as “MetalCo” (the “MetalCo Business”) to the Borrower and (ii) AIP will, directly or indirectly, acquire (the “JV Acquisition” and, together with the Acquisition, the “Acquisitions”) 40% of the outstanding equity interests of the Borrower (or a direct or indirect parent thereof) pursuant to that certain Transaction Agreement, dated as of the date hereof (together with the schedules and exhibits thereto, and as may be amended, modified, supplemented or waived from time to time in accordance with the Conditions Exhibit, the “JV Acquisition Agreement” and, together with the Voyage Acquisition Agreement, the “Acquisition Agreements”), by and among Silgan, A-VL Holdco, LP and Silgan Metal Packaging LLC.
(b) On or prior to the Closing Date, the Investors will, directly or indirectly, make an equity investment (the “Investor Equity Investment”) in the Borrower or a direct or indirect parent thereof (which equity investment, (x) if made in a direct or indirect parent of the Borrower, will, to the extent not otherwise applied, be contributed to the Borrower and (y) if other than common equity of the Borrower, will be on terms reasonably acceptable to the Lead Arrangers, in an aggregate amount (when combined, without duplication, with (x) any rollover equity in the Target and by other existing direct or indirect
A-1
equity holders of the Target in connection with the Acquisition (the “Rollover Equity”) and (y) the fair market value of the MetalCo Business (determined in accordance with the JV Acquisition Agreement) (the “JV Equity” and, together with the Investor Equity Investment and the Rollover Equity, the “Equity Contribution”)) that is not less than 35.0% (the “Minimum Equity Contribution”) of the sum of (i) the aggregate principal amount of the Facilities funded on the Closing Date (excluding (A) the effects of any exercise of the “market flex” provisions of the Fee Letter, including any amounts incurred or borrowed under the Facilities to fund any Flex OID, (B) amounts drawn under the Revolving Facility on the Closing Date for working capital purposes and/or working capital adjustments under either Acquisition Agreement or to replace, backstop or cash collateralize existing letters of credit, bank guarantees, bankers’ acceptances and similar documents and instruments and (C) any letters of credit, bank guarantees, bankers’ acceptances and similar documents and instruments outstanding on the Closing Date) plus (ii) the Equity Contribution minus (iii) the aggregate amount of cash on hand at the Borrower, the Target and their respective subsidiaries on the Closing Date) (it being understood that the Minimum Equity Contribution shall be subject to reduction as expressly set forth in paragraph (1) of Conditions Exhibit); provided that, on the Closing Date, immediately after giving effect to the Acquisitions, the Sponsors shall, directly or indirectly, by contract or otherwise, control at least a majority of the outstanding voting equity interests of Holdings.
(c) On the Closing Date, the Borrower will obtain (i) a senior secured term loan facility in an aggregate principal amount of $4,880 million (as such amount may be increased by the amount of any loans borrowed thereunder to fund Flex OID) which senior secured term loan facility will be available in (x) a U.S. dollar tranche in an aggregate principal amount of $2,900 million and (y) a Euro tranche in an aggregate principal amount equal to the Euro equivalent (determined on the date such term loans denominated in Euros are allocated as part of the general syndication or such other date as reasonably agreed between the Borrower and the Lead Arrangers) of $1,980 million (the “Initial Term Facility”), as described in the Term Sheet and (ii) a senior secured revolving facility in an aggregate principal amount of $1,000 million (the “Revolving Facility” and, together with the Initial Term Facility, the “Facilities”), as described in the Term Sheet.
(d) Proceeds of the Facilities received by the Borrower on the Closing Date will be used to fund (i) the payment of consideration pursuant to the terms and conditions of the Acquisition Agreements (the “Acquisition Consideration”), and the other payments contemplated by the Buyer or its affiliates under the Acquisition Agreements, (ii) the repayment in full (and termination of all related guarantees and security) of all indebtedness of the Target and its subsidiaries under (1) the Credit and Guarantee Agreement, dated as of May 28, 2025, among Trivium Packaging B.V., Trivium Packaging Finance B.V., the other guarantors party thereto, J.P. Morgan SE as administrative agent, and the other agents and lenders party thereto, (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Existing Term Loan Credit Agreement”) and (2) the Amended and Restated Credit and Guarantee Agreement, dated as of May 28, 2025, among Trivium Packaging B.V., Trivium Packaging Treasury B.V., the other borrowers and guarantors party thereto, J.P. Morgan SE as administrative agent, and the other agents and lenders party thereto, (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Existing ABL Credit Agreement” and together with the Existing Term Loan Credit Agreement, the “Existing Credit Agreements”); provided that, letters of credit, bank guarantees, bankers’ acceptances and similar documents and instruments of the Target and its subsidiaries that are outstanding on the Closing Date under the Existing Credit Agreements may be backstopped or replaced by (or rolled into) letters of credit, bank guarantees, bankers’ acceptances and similar documents and instruments issued under the Revolving Facility on the Closing Date or may be cash collateralized, (iii) either (1) all of the Target’s outstanding Senior Secured Notes issued pursuant to (x) the Senior First Lien Secured Indenture, dated as of May 28, 2025, among Trivium Packaging Finance B.V. as the issuer, Trivium Packaging B.V., the guarantors party thereto, GLAS Trust Company LLC as trustee and paying agent, Citibank, N.A., London Branch as security agent
A-2
and the other agents party thereto (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Existing First Lien Indenture”) and (y) the Senior Second Lien Secured Indenture, dated as of May 28, 2025, among Trivium Packaging Finance B.V. as the issuer, Trivium Packaging B.V., the guarantors party thereto, GLAS Trust Company LLC as trustee and paying agent, Citibank, N.A., London Branch as security agent and the other agents party thereto (as amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Existing Second Lien Indenture”, and together with the Existing First Lien Indenture, the “Existing Indentures” and together with the Existing Term Loan Credit Agreement and the Existing ABL Credit Agreement, the “Existing Trivium Indebtedness”) shall have been redeemed and paid in full (and all related guarantees and security interests terminated) or (2) notice for the redemption or repayment in full of all of the Senior Secured Notes shall have been given and immediately available funds sufficient to redeem or repay in full the Senior Secured Notes shall have been deposited with the applicable trustee to satisfy and discharge the Existing Indentures (clauses (ii) and (iii), the “Target Closing Refinancing”); (iv) fees, expenses and premiums incurred in connection with the foregoing and transactions (including the Transactions) related thereto (such fees and expenses, the “Transaction Costs”), (v) the distribution of funds to Silgan and (vi) working capital and general corporate purposes.
The transactions described above are collectively referred to herein as the “Transactions”. For purposes of the Commitment Letter and the Fee Letter, “Closing Date” shall mean the date of the satisfaction or waiver by the Lead Arrangers of all conditions set forth in the Conditions Exhibit and the initial funding of the Facilities.
A-3
EXHIBIT B
Project Voyage
Senior Secured Initial Term Facility
Senior Secured Revolving Facility
Summary of Principal Terms and Conditions
Set forth below is a summary of the principal terms and conditions for the Facilities. Capitalized terms used but not defined in this Term Sheet shall have the meanings set forth in the other Exhibits and Annexes (including the Definitions Annex) to the Commitment Letter to which this Term Sheet is attached (the “Commitment Letter”) or in the Commitment Letter. In the case of any such capitalized term that is subject to multiple and differing definitions, the appropriate meaning thereof in this Term Sheet shall be determined by reference to the context in which it is used.
| 1. | PARTIES |
| Holdings: | A newly formed entity which shall directly own 100% of the equity interests of the Borrower. | |
| Borrower: | As set forth in Exhibit A. | |
| Guarantors: | The obligations of the Borrower in respect of the Facilities and, at the Borrower’s option, any Loan Party’s or any restricted subsidiary’s obligations in respect of (i) any swap, hedging and cash management obligations owed to the Administrative Agent, any Lead Arranger, any Lender or any affiliate of the foregoing or any other person from time to time specifically designated by the Borrower as “Swap/Cash Management Obligations” (“Swap/Cash Management Obligations”) and (ii) reimbursement obligations in respect of letters of credit or bank guarantees issued by a third party (“Specified L/C Reimbursement Obligations”) will be jointly and severally guaranteed by Holdings and each existing and newly acquired or created wholly-owned material domestic restricted subsidiary of the Borrower (each, a “Guarantor” and, together with the Borrower, a “Loan Party”), in a manner, subject to the Documentation Principles, substantially consistent with the Precedent Documentation, in each case, (x) other than Excluded Subsidiaries (to be defined in a manner consistent with the Documentation Principles) and (y) without limitation of sub-clause (x) and the following paragraph, subject to limitations, thresholds, exceptions and release provisions to be set forth in the Facilities Documentation in a manner consistent with the Documentation Principles, provided that the Borrower, in its sole discretion, may elect to designate one or more Excluded Subsidiaries to become Guarantors subject to limitations to be mutually agreed in a manner consistent with the Documentation Principles with respect to foreign subsidiaries. | |
B-1
| For the avoidance of doubt, it is understood and agreed that no guarantees will be released solely as a result of the relevant Guarantor ceasing to be a wholly-owned subsidiary unless either (I) such transaction is entered into for a bona fide business purpose (as determined in good faith by the Borrower) and, for the avoidance of doubt, not the primary purpose of causing such release, (II) such Person ceases to constitute a “Subsidiary” under the Facilities Documentation or (III) such Person otherwise constitutes an Excluded Subsidiary (other than solely on account of constituting a non-wholly owned Subsidiary). | ||
| Administrative Agent: | Wells Fargo Bank, National Association (in its capacity as administrative agent and collateral agent in respect of the Facilities, the “Administrative Agent”). | |
| Lead Arrangers and Bookrunners: | Wells Fargo Securities, Goldman Sachs, RBCCM, DBSI and Bank of America will act as joint lead arrangers and joint bookrunners for the Facilities (together with any Additional Arranger appointed by the Borrower as contemplated in the Commitment Letter, each in such capacity, a “Lead Arranger” and, collectively, the “Lead Arrangers”) and will perform the duties customarily associated with such role. | |
| Lenders: | A syndicate of banks, financial institutions and other institutional lenders, including the Initial Lenders, arranged by the Lead Arrangers and reasonably acceptable to the Borrower, but excluding Disqualified Institutions (collectively, the “Lenders”); provided that nothing herein shall affect the consent rights of the Borrower set forth below under the heading “Assignments and Participations”. | |
|
2. FACILITIES | ||
| Type and Amount: | (A) A senior secured term loan facility in an aggregate principal amount of $4,880 million (as such amount may be increased by the amount of any loans borrowed thereunder to fund Flex OID, which amount shall be automatically added to the Commitment Parties’ commitments under the Commitment Letter), consisting of U.S. dollar and euro tranches made available to the Borrower as (i) a U.S. dollar tranche in an aggregate principal amount of $2,900 million (such facility, the “Initial Dollar Term Facility”) and (ii) a Euro tranche in an aggregate principal amount equal to the Euro equivalent (determined on the date such term loans denominated in Euros are allocated as part of the general syndication or such other date as reasonably agreed between the Borrower and the Lead Arrangers) of $1,980 million (such facility, the “Initial Euro Term Facility”, and, together with the “Initial Dollar Term Facility”, collectively, the “Initial Term Facility” and the loans thereunder, the “Term Loans”). | |
| (B) A senior secured revolving credit facility in an aggregate principal amount of $1,000 million (the “Revolving Facility”, the commitments thereunder, the “Revolving Commitments”), which will be available to the Borrower, of which $200 million (the “L/C Sublimit”) will be available in the form of letters of credit (“Letters of Credit”). The loans under the Revolving Facility, together with (unless the context otherwise requires) the Swingline Loans referred to below, are referred to as “Revolving Loans”. The Revolving Facility shall be available in | ||
B-2
| U.S. Dollars, Mexican Pesos, Euros, Canadian Dollars, Pounds Sterling, Swedish Krona, Australian Dollars and any other currencies reasonably acceptable to each Revolving Lender. | ||
| In connection with the Revolving Facility, the Administrative Agent (in such capacity, the “Swingline Lender”) will make available to the Borrower a swingline facility (the loans thereunder, the “Swingline Loans”) under which such Borrower may make borrowings of up to $200 million. Except for purposes of calculating the commitment fee described below, any such swingline borrowings will reduce availability under the Revolving Facility on a dollar-for-dollar basis. | ||
| Each Lender under the Revolving Facility (“Revolving Lender”) shall, promptly upon request by the Swingline Lender, fund to the Swingline Lender its pro rata share of any swingline borrowings. | ||
| If any Revolving Lender becomes a Defaulting Lender (to be defined in a manner consistent with the Documentation Principles) then the swingline exposure of such Defaulting Lender will automatically be reallocated among the non-Defaulting Lenders under the Revolving Facility pro rata in accordance with their commitments under the Revolving Facility up to an amount such that the revolving credit exposure of such non-Defaulting Lender does not exceed its commitments. In the event such reallocation does not fully cover the exposure of such Defaulting Lender, the Swingline Lender may require the Borrower to repay such “uncovered” exposure in respect of the swingline loans and will have no obligation to make new swingline loans to the extent such swingline loans would exceed the commitments of the non-Defaulting Lenders under the Revolving Facility. | ||
| The Borrower shall have the right to terminate the commitment of any Defaulting Lender to the extent such termination does not cause the revolving credit exposure to exceed the revolving credit commitments under the Revolving Facility. | ||
| Maturity and Amortization: | (A) The Initial Term Facility will mature on the date that is seven years after the Closing Date (the “Term Maturity Date”). The Initial Dollar Term Facility will amortize in equal quarterly installments (commencing with the third full fiscal quarter ended after the Closing Date) in an aggregate annual amount equal to 1.00% of the original principal amount of the Initial Dollar Term Facility, subject to reduction in connection with debt prepayments and debt buybacks, with the balance payable on the Term Maturity Date. The Initial Euro Term Facility will not be subject to amortization and the balance thereof will be payable on the Term Maturity Date. | |
| (B) The Revolving Facility will mature, and lending commitments thereunder will terminate, on the date that is five years after the Closing Date. The Revolving Facility will not be subject to amortization. | ||
B-3
| Availability: | (A) The Initial Term Facility will be available in a single drawing on the Closing Date. Amounts borrowed under the Initial Term Facility that are repaid or prepaid may not be reborrowed. | |
| (B) The Revolving Facility will be available on (subject to the limitations set forth in the next two succeeding sentences) and after the Closing Date and at any time prior to the final maturity of the Revolving Facility. The Revolving Facility will be made available on the Closing Date to (a) fund a portion of the Transactions, (b) cash collateralize, replace or provide credit support for any existing letters of credit outstanding on the Closing Date under facilities no longer available to the Borrower, the Target or their respective subsidiaries as of the Closing Date and (c) fund the purchase of cash and any working capital needs of the Borrower and its subsidiaries (including pursuant to any working capital adjustment and/or purchase price adjustments in either Acquisition Agreement); provided that amounts borrowed pursuant to clause (a) on the Closing Date shall not exceed $200 million in the aggregate. | ||
| Additionally, Letters of Credit may be issued on the Closing Date in order to, among other things, backstop or replace existing letters of credit and for other purposes to be mutually agreed. Otherwise, letters of credit and Revolving Loans will be available at any time prior to the final maturity of the Revolving Facility, in minimum principal amounts to be agreed upon. Amounts repaid under the Revolving Facility may be reborrowed. | ||
| Use of Proceeds: | (A) The proceeds of the Initial Term Facility will be used, together with the Equity Contribution and cash on hand of the Target and its subsidiaries, (i) to finance all or a portion of the Transactions (including working capital and/or purchase price adjustments and the payment of Transaction Costs) and (ii) for general corporate purposes. | |
| (B) The Letters of Credit and proceeds of Revolving Loans will be used by the Borrower and its subsidiaries for working capital, capital expenditures and general corporate purposes (including permitted acquisitions, investments, restricted payments and other transactions not prohibited under the Facilities Documentation). | ||
| Letters of Credit: | Letters of Credit under the Revolving Facility will be issued by Revolving Lenders (each an “Issuing Bank”), on a pro rata basis, in accordance with each Revolving Lender’s Revolving Commitments in respect of the Revolving Facility, and otherwise in a manner reasonably acceptable to the Borrower and each Issuing Bank. The face amount of any outstanding Letter of Credit (and, without duplication, any unpaid drawing in respect thereof) will reduce availability under the Revolving Facility on a dollar-for-dollar basis. Letters of Credit will be available in any currency available under the Revolving Facility. DBNY, Goldman Sachs and RBC shall not be required to issue any Letters of Credit other than standby Letters of Credit. | |
B-4
| Drawings under any Letter of Credit shall be reimbursed by the Borrower (whether with its own funds or with the proceeds of Revolving Loans) within one business day after notice of such drawing is received by the Borrower from the relevant Issuing Bank (with interest payable thereon as customarily provided). | ||
|
3. INCREMENTAL AND REFINANCING FACILITIES | ||
| Type and Amount: | The Borrower or any Guarantor will have the right from time to time, on one or more occasions, to (a) increase the size of the Initial Term Facility or any Incremental Term Facility or add one or more incremental term loan facilities (each, an “Incremental Term Facility” and, collectively, the “Incremental Term Facilities” and the loans thereunder, “Incremental Term Loans”) in minimum amounts to be agreed and (b) increase the size of the Revolving Facility or any Incremental Revolving Facility or add one or more incremental revolving credit facilities under the Revolving Facility (any such revolving credit facility, an “Incremental Revolving Facility” and, collectively, the “Incremental Revolving Facilities”; the Incremental Term Facilities and the Incremental Revolving Facilities are collectively referred to as “Incremental Facilities”) (the loans under any Incremental Revolving Facility shall be the “Incremental Revolving Loans”); provided that the aggregate principal amount of all such Incremental Facilities outstanding at any time shall not exceed (the amount under clauses (a), (b), (c) and (d), collectively, the “Available Incremental Amount”) the sum of: | |
| (a) an amount equal to the greater of (i) 100% of Financing EBITDA and (ii) 100% of Consolidated EBITDA, calculated on a pro forma basis, for the most recently ended Test Period, plus solely in the case of any Incremental Revolving Facility, an amount such that the aggregate Revolving Commitments do not exceed the greater of (i) 100% of Financing EBITDA and (ii) 100% of Consolidated EBITDA, plus any unused portion of the General Debt Basket or the Incremental Equivalent/Ratio Debt Starter Basket that the Borrower elects to instead apply to increase the Available Incremental Amount (the “Debt Basket Reallocated Amount”), minus the aggregate outstanding principal amount of debt incurred pursuant to clause (B) of the definition of Incremental Equivalent/Ratio Debt (as defined below) (the “Incremental Dollar Basket”), plus | ||
| (b) (X) the aggregate amount of all voluntary prepayments, redemptions and repurchases and payments utilizing yank-a-bank provisions (or, in the case of any revolving facility, permanent commitment reductions) in respect of (i) the initial Term Loans or Revolving Facility, (ii) any Incremental Term Loans, Incremental Revolving Facility or any Incremental Equivalent/Ratio Debt incurred pursuant to the Incremental Dollar Basket or the Incremental Prepayments Basket, and (iii) any other indebtedness secured by the Collateral on a pari passu or senior basis to the Initial Term Facility (and all debt buybacks of any of the foregoing with credit given to the principal amount of the debt | ||
B-5
| purchased and all prepayments and permanent commitment reductions of any of the foregoing in connection with “yank-a-bank” provisions), in each case, at or prior to such time (other than any such prepayments funded with the proceeds of long-term indebtedness of the Borrower or any of its restricted subsidiaries (other than (I) revolving indebtedness and intercompany loans or (II) without duplication, any Incremental Facility or Incremental Equivalent/Ratio Debt then being incurred in reliance on the Incremental Prepayments Basket)) and (Y) the amount of any voluntary prepayments, redemptions, repurchases and debt buybacks (in the principal amount of the indebtedness subject thereto) and payments utilizing yank-a-bank provisions in respect of (and, solely with respect to revolving credit facilities, permanent commitment reductions under) any Refinancing Debt (or other refinancing indebtedness) previously applied to the prepayment, redemption, repurchase, buyback or permanent commitment reduction, as applicable, of any of the foregoing set forth under clause (b)(X) above (except to the extent funded with proceeds of long-term indebtedness of the Borrower or any of its restricted subsidiaries (other than (I) revolving indebtedness and intercompany loans or (II) without duplication, any Incremental Facility or Incremental Equivalent/Ratio Debt then being incurred in reliance on the Incremental Prepayments Basket)) (the amount calculated pursuant to this clause (b), the “Incremental Prepayments Basket”), plus | ||
| (c) in the case of any Incremental Facility that serves to effectively extend the maturity of the initial Term Loans and/or other term indebtedness and commitments under the Revolving Facility and/or other revolving facilities or other unfunded commitments, in each case, that are secured by the Collateral on a pari passu or senior basis to the Initial Term Facility or that were incurred in reliance on the Incremental Dollar Basket or the Incremental Prepayments Basket, an amount equal to the portion of the initial Term Loans and/or other term indebtedness and commitments under the Revolving Facility and/or other revolving facilities or other unfunded commitments, as applicable, to be replaced with such indebtedness; plus | ||
| (d) an unlimited amount, so long as, in the case of this clause (d), after giving effect to the incurrence of such amount and the use of proceeds thereof (including giving pro forma effect to any acquisition or other transaction consummated in connection therewith and other appropriate pro forma adjustments), | ||
| (i) in the case of an Incremental Facility secured on a pari passu basis with the Initial Term Facility, the First Lien Net Leverage Ratio, on a pro forma basis, does not exceed the greater of (x) 4.32:1.00 and (y) the First Lien Net Leverage Ratio immediately preceding the incurrence of such Incremental Facility (the amount calculated pursuant to this clause (d)(i), the “Pari Incremental Ratio Basket”), | ||
B-6
| (ii) in the case of an Incremental Facility secured by the Collateral on a basis junior to the Initial Term Facility, either (x) the Cash Interest Coverage Ratio, on a pro forma basis, is not less than the lesser of (1) 1.50:1.00 and (2) the Cash Interest Coverage Ratio immediately preceding the incurrence of such Incremental Facility or (y) the Secured Net Leverage Ratio, on a pro forma basis, does not exceed the greater of (1) 4.82:1.00 and (2) the Secured Net Leverage Ratio immediately preceding the incurrence of such Incremental Facility (the amount calculated pursuant to this clause (d)(ii), the “Junior Incremental Ratio Basket”), and | ||
| (iii) in the case of an Incremental Term Facility that is secured by assets that do not constitute Collateral or that is unsecured, either (x) the Cash Interest Coverage Ratio, on a pro forma basis, is not less than the lesser of (1) 1.50:1.00 and (2) the Cash Interest Coverage Ratio immediately preceding the incurrence of such Incremental Facility or (y) the Total Net Leverage Ratio, on a pro forma basis, does not exceed the greater of (1) 5.32:1.00 and (2) the Total Net Leverage Ratio immediately preceding the incurrence of such Incremental Facility (the amount calculated pursuant to this clause (d)(iii), the “Unsecured Incremental Ratio Basket”); | ||
| provided that with respect to any Incremental Term Facility in the form of a delayed draw term loan facility (an “Incremental Delayed Draw Facility”), such Incremental Delayed Draw Facility shall either, as selected by the Borrower in its sole discretion, (X) be assumed to be fully drawn on the date such Incremental Delayed Draw Facility is established or (Y) otherwise require capacity under the Available Incremental Amount with respect to each Incremental Term Loan funded thereunder, in each case under this sub-clause (Y), tested on the applicable date of funding thereof. | ||
| The incurrence of any Incremental Facility shall be subject to satisfaction of the following conditions: | ||
| . | 1. such Incremental Facility shall not be guaranteed by any restricted subsidiary of the Borrower that is not a Guarantor and shall be secured on a pari passu or subordinated basis to the Initial Term Facility or shall be unsecured and shall not be secured by any assets of any Loan Party not constituting Collateral; | |
| . | 2. (A) in the case of an Incremental Term Facility, except in the case of Permitted Earlier Maturity Debt, any such Incremental Term Facility will have a final maturity no earlier than the final maturity of the Initial Term Facility and the weighted average life to maturity of any such Incremental Term Facility shall not be shorter than the then remaining weighted average life to maturity of the Initial Dollar Term Facility (determined without giving effect to any prepayments); and (B) any Incremental Revolving Facility will have a final maturity no earlier than the final maturity of the initial Revolving Facility; | |
B-7
| 3. (A) any such Incremental Revolving Facility shall either (i) be subject to the same terms and conditions as the Revolving Facility (and be deemed added to, and made a part of, the Revolving Facility) (it being understood that, if required to consummate an Incremental Revolving Facility, the Borrower may increase the pricing, interest rate margins, rate floors and undrawn fees on the applicable Revolving Facility being increased for all lenders under such Revolving Facility, but additional upfront or similar fees may be payable to the lenders participating in such Incremental Revolving Facility without any requirement to pay such amounts to any existing Revolving Lenders) or (ii) mature no earlier than, and require no scheduled mandatory commitment reduction prior to, the maturity of the initial Revolving Facility and all other material terms (other than pricing, maturity, upfront, arrangement, structuring, underwriting, ticking, consent, amendment and other fees, participation in mandatory prepayments or commitment reductions and immaterial terms, which shall be determined by the Borrower) shall (x) be substantially identical to the initial Revolving Facility or (y) be reasonably satisfactory to the Administrative Agent (it being understood that if any financial maintenance covenant or other more favorable provision is added for the benefit of any Incremental Revolving Facility, no consent shall be required from the Administrative Agent or any Lender to the extent that such financial maintenance covenant or other provision is (1) also added for the benefit of any existing Revolving Facility or (2) only applicable after the latest maturity of any existing Revolving Facility); (B) any Incremental Term Facility may provide for the ability to participate on a pro rata basis, or on a less than or greater than pro rata basis, in any voluntary prepayments of the term loans (or mandatory prepayment with proceeds of Refinancing Debt), and on a pro rata basis or a less than pro rata basis (but not greater than pro rata basis) in any other mandatory prepayments of the Term Loans (except that the Borrower shall be permitted to prepay any class of term loans on a greater than pro rata basis as compared to any other class of term loans with a later maturity date than such class); | ||
| 4. to the extent required by the lenders providing such Incremental Facility, no payment or bankruptcy (with respect to the Borrower) event of default shall have occurred and be continuing or would immediately result therefrom; provided that, in the case of a Limited Condition Transaction (to be defined in a manner consistent with the Documentation Principles), a permitted acquisition or other investment, such requirement shall be limited to no payment or bankruptcy (with respect to the Borrower) event of default determined as of the LCT Test Date (to be defined in a manner consistent with the Documentation Principles); | ||
B-8
| 5. no Lender shall be required to participate in any Incremental Facility without its consent;
6. except as otherwise required or permitted above, all other terms of such Incremental Facility will be agreed between the Borrower and the lenders providing such Incremental Facility; and
7. the currency, pricing, interest rate margins, discounts, premiums, rate floors, fees and prepayment terms applicable to any Incremental Facility shall be determined by the Borrower and the lenders thereunder; provided that solely in the case of any Incremental Term Facility that (1) is incurred under clause (d) of the Available Incremental Amount, (2) is secured by the Collateral on a pari passu basis with the initial Term Loans, (3) is in the form of floating rate term loan “B” U.S. dollar or euro denominated credit facilities, as applicable, (4) is broadly syndicated (the “Broadly Syndicated Exception”), (5) matures on or prior to the maturity date of the initial Term Loans (the “Outside Maturity Threshold”), (6) is incurred prior to the date that is six months after the Closing Date (such date, the “MFN Sunset Date”), (7) has 100% cash interest and (8) is not incurred in connection with a permitted acquisition or other permitted investment (including capital expenditures) or to refinance any indebtedness originally incurred for such purposes (the “Acquisition Exception”) (provided that the Borrower may, in its sole discretion, exclude any Incremental Term Facility from application of the MFN Provision that is not otherwise excluded from the MFN Provision in an aggregate initial principal amount of up to the greater of (i) 250% of Financing EBITDA and (ii) 250% of Consolidated EBITDA calculated on a pro forma basis for the most recently ended Test Period (this proviso, the “MFN Threshold”)), if the interest rate margin applicable to any such Incremental Term Facility (after giving effect to all stepdowns applicable thereto) determined as of the initial funding date for such Incremental Term Facility is more than 1.00% (the “MFN Differential”) higher than the highest interest rate margin applicable to the Initial Term Facility, then the interest rate margin for the Initial Term Facility denominated in the same currency shall be increased by an amount equal to the difference between the interest rate margin with respect to such Incremental Term Facility (after giving effect to all stepdowns applicable thereto) and the highest interest rate margin on the Initial Term Facility denominated in the same currency, minus the MFN Differential (the “MFN Provision”).
The lenders providing any Incremental Facility shall be reasonably satisfactory to the Administrative Agent (and in the case of any Incremental Revolving Facility, each Issuing Bank and each Swingline Lender to the extent required under “Assignments and Participations” below). | ||
B-9
| The Facilities Documentation will permit the Borrower and its restricted subsidiaries to utilize availability under the Incremental Facilities to issue or incur Incremental Equivalent/Ratio Debt as set forth under “Negative Covenants” below. | ||
| “Financing EBITDA” means $1,102 million. | ||
| “Permitted Earlier Maturity Debt” means at the option of the Borrower (in its sole discretion), indebtedness incurred with a final maturity date prior to the earliest maturity date otherwise required under the Facilities Documentation with respect to such indebtedness and/or a weighted average life to maturity shorter than the minimum weighted average life to maturity otherwise required under this Facilities Documentation with respect to such indebtedness (i) in an aggregate outstanding principal amount not to exceed the greater of (a) 250% of Financing EBITDA and (b) 250% of Consolidated EBITDA, calculated on a pro forma basis for the most recently ended Test Period, (ii) constituting bridge loan the terms of which provide for an automatic extension of the maturity date thereof, subject to customary conditions, to a date that is not earlier than the latest maturity date of the Initial Term Facility (“Extendable Bridge Loans”), (iii) incurred pursuant to the Debt Basket Reallocated Amount or (iv) solely for purposes of meeting any weighted average life to maturity condition, such indebtedness has amortization of up to 1.00% per annum, in each case, solely to the extent the final maturity date of such indebtedness is restricted from occurring prior to such earliest maturity date, or the weighted average life to maturity of such Indebtedness is restricted from being shorter than the minimum weighted average life to maturity otherwise required, under the applicable basket. | ||
| “Test Period” means, on any date of determination, with respect to the Borrower and its restricted subsidiaries on a consolidated basis, (x) for purposes of determining (i) the applicable percentage of Excess Cash Flow, (ii) the Applicable Margin and the commitment fee rate, (iii) the Asset Sale Prepayment Step-ups and (iv) compliance with the Financial Covenant, the four (4) consecutive fiscal quarters of the Borrower and its restricted subsidiaries most recently then ended and for which a compliance certificate has been delivered and (y) for all other purposes, the four (4) consecutive fiscal quarters of the Borrower and its restricted subsidiaries most recently then ended in respect of which financial statements are internally available (as determined in good faith by the Borrower); provided that, in the case of clause (y) above, at the option of the Borrower, the Test Period may instead be the most recent period of twelve consecutive fiscal months of the Borrower ended on or prior to such date of determination (taken as one accounting period) in respect of which internal monthly financials are available (as determined in good faith by the Borrower) for each fiscal month in such period. | ||
B-10
| Use of Proceeds: | The proceeds of the Incremental Facilities will be used for working capital, capital expenditures and other general corporate purposes (including permitted acquisitions and payment of permitted dividends) of the Borrower and its subsidiaries and any other purpose not prohibited by the Facilities Documentation. | |
| Refinancing Debt: | The Facilities Documentation will permit the Borrower to (a) refinance the Revolving Commitments or commitments under any Incremental Revolving Facility from time to time, in whole or part, with one or more new revolving credit facilities (each, a “Refinancing Revolving Credit Facility”) under the Facilities Documentation with the consent of the Borrower and the institutions providing the Refinancing Revolving Credit Facility, (b) refinance Term Loans or loans or commitments under any Incremental Term Facility from time to time, in whole or part, with one or more new term facilities (each, a “Refinancing Term Facility”) under the Facilities Documentation with the consent of the Borrower and the institutions providing the Refinancing Term Facility, and (c) refinance Term Loans or loans or commitments under any Incremental Term Facility from time to time, in whole or part, or Revolving Loans or Revolving Commitments or loans or commitments under any Incremental Revolving Facility with one or more (x) series of senior, senior subordinated or subordinated unsecured notes or loans or (y) series of notes or loans that will be secured by the Collateral (A) on a pari passu basis with the Initial Term Facility or (B) on a junior priority basis to the Initial Term Facility, which will be subject to a “market” intercreditor agreement or other customary intercreditor arrangements or such other intercreditor terms reasonably acceptable to the Administrative Agent and the Borrower (each, a “Specified Intercreditor Agreement”) (the debt described in this clause (c), “Refinancing Notes”; the Refinancing Notes, together with each Refinancing Term Facility and Refinancing Revolving Credit Facility, collectively, the “Refinancing Debt”); provided that: | |
| 1. other than Permitted Earlier Maturity Debt, no Refinancing Debt shall mature prior to the maturity date of the facility being refinanced or, in the case of a Refinancing Term Facility, have a shorter weighted average life to maturity (determined without giving effect to any prepayments) than loans under the Initial Dollar Term Facility or Incremental Term Facility being refinanced; | ||
| 2. no Refinancing Debt shall be borrowed or guaranteed by any restricted subsidiary that is not a Loan Party; | ||
| 3. if secured, such Refinancing Debt shall not be secured by any property or assets of any Loan Party that does not constitute Collateral; and | ||
| 4. the proceeds of such Refinancing Debt shall be promptly applied to permanently repay in whole or in part the loans under the facility being refinanced, and such Refinancing Debt shall not be | ||
B-11
| in an aggregate principal amount greater than the principal or committed amount of the facility being refinanced, plus additional amounts to the extent otherwise permitted to be incurred under the Facilities Documentation; plus any fees, premium, original issue discount and accrued interest associated therewith, and costs and expenses related thereto. | ||
| In connection with any Refinancing Debt, the Facilities Documentation will provide the Borrower the right to require the applicable lenders to assign their loans and commitments to the providers of any such Refinancing Debt. 5. | ||
| 5. CERTAIN PAYMENT PROVISIONS | ||
| Fees and Interest Rates: | As set forth on Annex I to this Term Sheet. | |
| Closing Fees: | As set forth in the Fee Letter. | |
| Optional Prepayments and Commitment Reductions: | The Facilities may be prepaid, and commitments may be reduced, in whole or in part, at the option of the Borrower, without premium or penalty (except as set forth in the next paragraph), in minimum amounts to be agreed, upon same day notice (or, in the case of a prepayment of SOFR Loans or EURIBOR Loans (as defined in Annex I), three business days’ prior notice) (which may be conditioned upon the occurrence of a refinancing or other event). | |
| In the case of (a) any optional prepayment of Term Loans (or mandatory prepayment pursuant to clause (b) under the heading “Mandatory Prepayments”) with the proceeds of, or any exchange of Term Loans into, any new or replacement broadly syndicated pari passu secured long-term term loan “B” credit facility denominated in the same currency as the subject Term Loans and having a lower all-in-yield than the all-in-yield of the Initial Term Facility or (b) any “repricing” amendment (and any mandatory assignment by a Lender in connection therewith) of the Initial Term Facility which reduces the all-in yield of the Initial Term Facility, in each case prior to the date that is six months after the Closing Date (the “Prepayment Premium End Date”) and where the primary purpose (as determined by the Borrower in good faith) of such prepayment, exchange or amendment is to reduce the all-in-yield of the Initial Term Facility, the Borrower shall pay a 1.00% prepayment fee with respect to any Term Loans so prepaid, exchanged or subject to such “repricing” amendment; provided that no such fee shall be payable (A) in connection with any transaction that would, if consummated, constitute (i) a change of control, (ii) a qualifying IPO, (iii) a disposition, the consideration for which exceeds the lesser of (x) 25% of Financing EBITDA and (y) 25% of Consolidated EBITDA for the most recently ended Test Period, (iv) a dividend recapitalization (the “Prepayment Premium Dividend Exception”), (v) any transaction resulting in an upsizing of the Initial Term Facility (the “Prepayment | ||
B-12
| Premium Upsize Exception”), (vi) an acquisition or other similar investment, the consideration for which exceeds the lesser of (x) 25% of Financing EBITDA and (y) 25% of Consolidated EBITDA for the most recently ended Test Period or (vii) any other transaction not otherwise permitted by the Facilities Documentation or that would not provide the Borrower with sufficient operational flexibility or (B) (i) if such prepayment is made with internally generated cash or (ii) to any Lender that continues (or an affiliate thereof continues) to be a Lender under the Initial Term Facility in connection with a refinancing. | ||
| All voluntary prepayments (including from the proceeds of Refinancing Debt) shall be applied as directed by the Borrower (and in the absence of such direction, in direct order of maturity), which may be applied to any specific class or classes, tranche or tranches or facility or facilities as selected by the Borrower; provided that such prepayments shall be made on a pro rata basis within such class, tranche or facility. | ||
| Mandatory Prepayments: | If at any time the aggregate amount of outstanding loans, unreimbursed letter of credit drawings and undrawn letters of credit under the Revolving Facility exceeds the commitments under the Revolving Facility, then the Borrower will immediately repay outstanding loans and cash collateralize outstanding letters of credit under the Revolving Facility in an aggregate amount equal to such excess, with no reduction of the commitments. | |
| Mandatory prepayments of the Initial Term Facility shall be required in an amount equal to: | ||
| (a) the Net Cash Proceeds Percentage of the net cash proceeds of any non-ordinary course sale or other disposition of fixed assets constituting Collateral pursuant to the “unlimited” asset sale basket and any casualty or condemnation event suffered with respect to fixed assets constituting Collateral by the Borrower or any Loan Party in excess of an amount to be agreed per transaction (or series of related transactions) and an amount to be agreed per fiscal year that are not excluded pursuant to the per transaction exclusion (with only such excess amount being subject to prepayment) and subject to the right of the Borrower and its restricted subsidiaries to (i) reinvest such proceeds in the business of the Borrower and its restricted subsidiaries if such proceeds are reinvested within 24 months following receipt (or, if the Borrower or a restricted subsidiary has contractually committed to reinvest such proceeds within 24 months following receipt, 30 months following receipt) and (ii) make restricted payments (subject to available capacity under any restricted payment basket) with such proceeds in lieu of the reinvestment thereof (provided that the Borrower may elect to deem expenditures that otherwise would be permissible reinvestments that occur prior to receipt of the proceeds of an asset sale or other disposition to have been reinvested in accordance with the provisions hereof; provided, further, that such deemed expenditure shall have been made no earlier than the earliest of (i) one year prior to such asset sale or disposition, (ii) notice of such intended asset sale or disposition, (iii) execution of a definitive agreement for such asset sale or disposition and (iv) consummation of such asset sale or disposition) (any such asset sale proceeds pursuant to this clause (a) not so applied as a mandatory prepayment, the “Retained Asset Sale Proceeds”); | ||
B-13
| “Net Cash Proceeds Percentage” means (i) 0%, if the First Lien Net Leverage Ratio is equal to or less than the greater of (x) 4.50:1.00 or (y) the First Lien Net Leverage Ratio as of the Closing Date plus 0.25:1.00, (ii) 50%, if the First Lien Net Leverage Ratio is equal to or less than the greater of (x) 5.00:1.00 or (y) the First Lien Net Leverage Ratio as of the Closing Date plus 0.75:1.00, but greater than the greater of (x) 4.50:1.00 or (y) the First Lien Net Leverage Ratio as of the Closing Date plus 0.25:1.00 and (iii) 100%, if the First Lien Net Leverage Ratio is greater than the greater of (x) 5.00:1.00 or (y) the First Lien Net Leverage Ratio as of the Closing Date plus 0.75:1.00; provided that, in each case, such First Lien Net Leverage Ratio shall be determined, at the Borrower’s option, at the time of such disposition, at the time of entry into a definitive agreement with respect thereto or at the time of application of the net cash proceeds therefrom) (and the Net Cash Proceeds Percentage may, at the Borrower’s option, be tested at any time during the reinvestment period, and shall apply to amounts subject to the reinvestment rights set forth above during such periods); | ||
| (b) 100% of the net cash proceeds from issuances or incurrences of debt by the Borrower and its restricted subsidiaries (other than debt permitted by the Facilities Documentation, except for Refinancing Debt that refinances the Initial Term Facility); and | ||
| (c) commencing with the first full fiscal year ended after the Closing Date, 0% of Excess Cash Flow for each fiscal year of the Borrower (“Excess Cash Flow” to be defined consistent with the Documentation Principles as modified as reasonably necessary to (i) more accurately reflect the business and financial accounting of the Borrower and its subsidiaries after giving effect to the Transactions and (ii) address technical clarifications); (i) provided that such prepayment percentage shall be increased to (x) 25% if (x) the First Lien Net Leverage Ratio would be greater than the greater of (i) 4.50:1.00 or (ii) the First Lien Net Leverage Ratio as of the Closing Date plus 0.25:1.00 but less than the greater of (x) 5.00:1.00 or (y) the First Lien Net Leverage Ratio as of the Closing Date plus 0.75:1.00 and (y) 50% if the First Lien Net Leverage Ratio is greater than the greater of (i) 5.00:1.00 or (ii) the First Lien Net Leverage Ratio as of the Closing Date plus 0.75:1.00, as calculated at the time of the respective payment and recalculated to give pro forma effect to any such prepayment; (ii) provided, further, that at the Borrower’s option the amount of such prepayment shall be reduced dollar-for-dollar by (A)(x) the amount of any voluntary prepayment, redemptions and repurchases of (1) the loans under the Initial Term Facility, any Incremental Term Facility, any Refinancing Debt (other than a revolving credit facility) and any Incremental Equivalent/Ratio Debt, (2) any other term indebtedness, (3) any revolving credit facility (including the Revolving Facility and Refinancing Debt consisting of | ||
B-14
| revolving credit facilities and any incremental facility thereunder) (to the extent such other revolving credit facility is secured by the Collateral and accompanied by a permanent reduction of the corresponding commitment) and (4) any refinancing, replacement or extension of any of the foregoing (in each case, including any debt buyback conducted pursuant to a Dutch Auction or open market purchase or other privately negotiated transaction, with credit given in an amount equal to the cash purchase price), but excluding any such prepayments funded with the proceeds of long-term indebtedness of the Borrower or any of its restricted subsidiaries (other than revolving loans and intercompany loans), in each case made (or committed to be made) during such fiscal year and, at the option of the Borrower, made after fiscal year-end and prior to the payment due date, (y) amounts used to repay borrowings of Revolving Loans made to account for any Flex OID and (z) among other things, but in each case under this clause (z) to the extent not financed with long term indebtedness (other than revolving indebtedness or intercompany loans), cash used for reorganization and restructuring expenses, expenses incurred in connection with cost savings initiatives, capital expenditures, permitted investments, permitted acquisitions, restricted payments, payments of seller notes and earn-outs (including reorganization and restructuring expenses, expenses incurred in connection with cost savings initiatives, contracted (but not yet consummated) and planned capital expenditures, acquisitions and other investments and restricted payments, and planned acquisitions and certain other investments subject to a binding letter of intent so long as (1) such amounts are planned or contractually committed by the date the relevant Excess Cash Flow prepayment is due, (2) such amounts are utilized (and, for the avoidance of doubt, shall not be deducted when used) during the fiscal year following such Excess Cash Flow period and (3) any amounts not utilized during such fiscal year following such Excess Cash Flow period shall be included in the calculation of Excess Cash Flow for such fiscal year (the foregoing clauses (1), (2) and (3), the “Contracted Amounts Provisions”)), in each case made (or committed to be made) during such fiscal year and, at the option of the Borrower, made (or committed to be made) after fiscal year-end and prior to the payment due date (in each case under this clause (ii), except to the extent financed with long-term indebtedness of the Borrower or any of its restricted subsidiaries (other than revolving indebtedness or intercompany loans)). | ||
| The First Lien Net Leverage Ratio for purposes of determining the applicable excess cash flow percentage above shall be recalculated to give pro forma effect to any such mandatory prepayment and any other repayment or prepayment prior to the time such excess cash flow prepayment is due. Prepayments of Excess Cash Flow shall be required only if the amount required to be prepaid is greater than the greater of (x) 30% of Financing EBITDA and (y) 30% of Consolidated EBITDA calculated on a pro forma basis for the most recently ended Test Period (and solely to the extent of such excess). | ||
B-15
| Each mandatory prepayment of the loans under the Initial Term Facility shall be applied in direct order of maturity to the remaining installments of the Initial Term Facility or as otherwise directed by the Borrower. | ||
| Notwithstanding the foregoing, any Lender may elect not to accept its pro rata share of any mandatory prepayment (other than a prepayment with Refinancing Debt), in which case the amount so rejected may be retained by the Borrower (any amounts retained by the Borrower, the “Declined Amounts”). Any Declined Amount by the Lenders or, if applicable, under any Additional Debt, may be retained by the Borrower and such Declined Amount shall increase the Available Amount Basket. | ||
| Notwithstanding the foregoing, the Facilities Documentation will provide that in the event any debt is issued or incurred that is secured by liens on Collateral (collectively, “Additional Debt”), such Additional Debt may share no more than ratably in any prepayments required by the foregoing provisions of the Excess Cash Flow sweep and the asset sale proceeds sweep (or on a greater than ratable basis with respect to any indebtedness with an earlier maturity date than the Initial Term Facility). | ||
| All mandatory prepayments shall be subject to permissibility under (i) local law (e.g., financial assistance, corporate benefit, thin capitalization, capital maintenance, restrictions on repatriating or upstreaming of cash intra-group and the fiduciary and statutory duties of the directors of the relevant subsidiaries) and (ii) material organizational document restrictions (including as a result of minority ownership) and restrictions in other material agreements. Further, there will be no requirement to make any mandatory prepayment attributable to the Excess Cash Flow or net cash proceeds of a foreign subsidiary if the Borrower determines that the Loan Parties or any of their subsidiaries or direct or indirect parent companies or equityholders could suffer material adverse tax costs or consequences as a result of repatriating or upstreaming such amounts (taking into account the imposition of withholding taxes). Notwithstanding the foregoing, any prepayments actually made shall be net of any costs, expenses or taxes that would be incurred or payable by the Loan Parties or any of their subsidiaries, affiliates or direct or indirect equity owners as a result of repatriating such amounts. | ||
| 6. COLLATERAL |
||
| Collateral: | Subject to the Limited Conditionality Provision and the Documentation Principles, the obligations under the Facilities, the Swap/Cash Management Obligations and the Specified L/C Reimbursement Obligations will be secured by, subject to permitted liens and other exceptions consistent with the Documentation Principles, first priority liens on the Collateral of each Loan Party, (x) other than Excluded Property (to be defined in a manner consistent with the Documentation Principles) and (y) without limitation of sub-clause (x), subject to limitations, thresholds, exceptions and release provisions to be set forth in the Facilities Documentation in a manner consistent with the Documentation Principles. | |
B-16
| Notwithstanding anything in the foregoing to the contrary, for the avoidance of doubt, in addition to other exceptions and limitations to be set forth in the Facilities Documentation in a manner consistent with the Documentation Principles, in no event shall the Borrower or any guarantor be required to (i) create any security interests in leased or owned real estate or to perfect such security interests, (ii) except with respect to the assets of a foreign subsidiary that, at the election of the Borrower, becomes a guarantor, create any security interests in assets located, titled, registered or filed outside of the United States or to perfect such security interests or (iii) deliver (a) control agreements, (b) other similar third party documents, or (c) except with respect to the assets of a foreign subsidiary that, at the election of the Borrower, becomes a guarantor, to the extent governed under the laws of a jurisdiction other than the United States, security agreements, pledge agreements, or share charge (or mortgage) agreements. | ||
| 7. CERTAIN CONDITIONS |
||
| Conditions Precedent to | ||
| Initial Borrowing: | Subject to the Limited Conditionality Provision, the availability and funding of the Facilities on the Closing Date will be subject only to the conditions precedent set forth on the Conditions Exhibit applicable to the Facilities. | |
| Conditions Precedent to all Borrowings Under the Revolving Facility after the Closing Date: |
The making of each extension of credit after the Closing Date under the Revolving Facility shall be conditioned upon (a) the delivery of notice, (b) the accuracy of representations and warranties in the Facilities Documentation in all material respects and (c) the absence of continuing defaults. | |
| 8. DOCUMENTATION |
||
| Documentation: | The definitive documentation for the Facilities (the “Facilities Documentation”) shall (i) contain only those conditions, mandatory prepayments, prepayment premiums, representations, warranties, covenants and events of default expressly set forth in this Exhibit (applicable to the Borrower and its restricted subsidiaries, in each case, with customary materiality thresholds, “baskets”, exceptions, limitations, qualifications and grace and cure periods and other thresholds, “baskets”, exceptions, limitations, qualifications and grace and cure periods to be mutually agreed) and, except as set forth herein, be no less favorable to Holdings, the Borrower and its subsidiaries than (A) the terms and conditions of the Credit Agreement, dated September 9, 2024, among A-AP Buyer, Inc., A-AP Midco, Inc., JPMorgan Chase | |
B-17
| Bank, N.A. as collateral agent and term loan administrative agent, KeyBank National Association as revolving administrative agent, the lenders party thereto from time to time, and the other parties thereto from time to time (and the related security, pledge, collateral and guarantee agreements executed and/or delivered in connection therewith and the forms of intercreditor agreements attached thereto), as amended, supplemented or otherwise modified prior to the date hereof, (the “Precedent Documentation”) and (B) the Amended & Restated Credit Agreement, dated as of March 24, 2017 (the “Existing Silgan Credit Agreement”), among Silgan, the other borrowers party thereto, the other guarantors party thereto, and Wells Fargo Bank, National Association, as administrative agent, and shall be negotiated in good faith with changes and modifications (a) that reflect the terms of this Exhibit, (b) as are reasonably necessary to take into account the operational and strategic requirements and the specific nature of the businesses of the Borrower and its subsidiaries (after giving effect to the Transactions) in light of their capitalization, size, business, industry and practices and the disclosure schedules to the Acquisition Agreements, (c) as are necessary to take into account the Projections and the model delivered by the Sponsors to the Lead Arrangers on September 21, 2026 (together with any updates or modifications thereto reasonably agreed between the Sponsors and the Lead Arrangers) (the “Model”) (or as necessary to reflect any exercise of the “market flex” provisions in the Fee Letter), (d) to the operational and agency provisions (so long as such changes and modifications are not inconsistent with this Term Sheet and are mutually agreed between the Borrower and the Administrative Agent), and (e) to take into account any changes in law or accounting standards or to cure any mistakes or defects and (ii) be consistent with the Conditions Exhibit (including the Limited Conditionality Provision), (iii) contain operational terms that are, in addition to the specifications of clause (i) above, no less favorable to the Borrower than the terms of the Existing Credit Agreements and the Existing Silgan Credit Agreement and with respect to the borrowers thereunder and (iv) be negotiated in good faith to finalize the Facilities Documentation within a reasonable time period to be determined based on the expected Closing Date and in coordination with the Acquisition Agreements, taking into account the timing of the syndication of the Facilities. This paragraph shall be referred to as the “Documentation Principles”. The Facilities Documentation will be initially drafted by counsel to the Borrower. | ||
| If additional debt is incurred in connection with Flex OID, whether before or after the Closing Date, all incurrence based tests and other financial ratios in the Facilities Documentation shall be adjusted in the Facilities Documentation (or pursuant to an amendment thereto) in order to maintain the cushion from the Model provided by such test or ratio as set forth herein. | ||
| The amount of any basket or threshold determined by reference to Consolidated EBITDA shall be determined as the greater of Consolidated EBITDA for such Test Period and the highest previously reported Consolidated EBITDA for any prior Test Period (the “High Water-Marking Provision”). | ||
B-18
| All dollar baskets and thresholds with a “per year” limitation will include the ability to carry-forward and carry-back unused amounts from prior and subsequent years, respectively (the “Annual Basket Provision”). | ||
| A subsidiary of the Borrower shall constitute an immaterial subsidiary under the Facilities Documentation if, as of the last day of the most recently ended Test Period, it does not have (a) assets (when combined with the assets of all other immaterial subsidiaries, after eliminating intercompany obligations) in excess of 10.0% of the total assets of the Borrower and its restricted subsidiaries or (b) Consolidated EBITDA (when combined with the Consolidated EBITDA of all other immaterial subsidiaries) in excess of 10.0% of the Consolidated EBITDA of the Borrower and its restricted subsidiaries. | ||
| The Facilities Documentation shall, without limitation, (I) include an additional liens basket permitting the Borrower or any restricted subsidiary, at its election, to incur liens on cash collateral securing reimbursement obligations in respect of letters of credit issued by a third party in lieu of utilization of all or a portion of the L/C Sublimit (the “Specified L/C Cash Collateral Liens”) (it being understood that such utilization of the L/C Sublimit pursuant to Specified L/C Cash Collateral Liens shall be deemed to constitute utilization of capacity under the L/C Sublimit (provided that any such utilization of the L/C Sublimit shall not be deemed to constitute utilization for purposes of the commitment fee)) and (II) permit the Borrower, in its sole discretion, to secure and guarantee Specified L/C Reimbursement Obligations (it being understood that such utilization of the L/C Sublimit pursuant to Specified L/C Reimbursement Obligations shall be deemed to constitute utilization of capacity under the L/C Sublimit (provided that any such utilization of the L/C Sublimit shall not be deemed to constitute utilization for purposes of the commitment fee)). | ||
| Representations and Warranties: |
Limited to the following (applicable to only the Borrower and its restricted subsidiaries and, in a customary manner to be agreed, Holdings) and subject to the Limited Conditionality Provision: existence, qualification and power; due authorization, execution, delivery and enforceability of the Facilities Documentation; compliance with material laws (including environmental laws); the PATRIOT Act, FCPA and OFAC; with respect to the execution, delivery and performance of the Facilities Documentation, no contravention of organizational documents, material laws or material debt agreements; material governmental approvals with respect to the execution, delivery and performance of the Facilities Documentation; accuracy of financial statements (after the Closing Date); no Material Adverse Effect (after the Closing Date); material litigation; ownership of property; taxes; ERISA compliance; margin regulations; Investment Company Act; | |
B-19
| accuracy of disclosure as of the Closing Date (to be consistent with the “information” representation set forth in the Commitment Letter to which this Exhibit is attached); solvency of the Borrower and its restricted subsidiaries on a consolidated basis as of the Closing Date (which representation shall be satisfied by the delivery of a solvency certificate in the form attached as Annex I to the Conditions Exhibit); and creation, perfection and priority of security interests (subject to permitted liens). Only the Specified Representations will be made on the Closing Date. For the avoidance of doubt, the failure of any representation or warranty (other than the Specified Representations and the Specified Acquisition Agreement Representations) to be true and correct on the Closing Date will not constitute the failure of a condition precedent to funding under any Facility and the failure of any representation or warranty (other than the Specified Representations) to be true and correct on the Closing Date will not constitute a default under any Facility. | ||
| “Material Adverse Effect” means (a) on the Closing Date, a “Material Adverse Effect” as defined in each Acquisition Agreement and (b) after the Closing Date, (i) a material adverse effect on the business, financial condition or results of operations of the Borrower and its restricted subsidiaries, taken as a whole, (ii) a material adverse effect on the ability of the Loan Parties (taken as a whole) to perform their respective payment obligations under the Facilities Documentation or (iii) a material adverse effect on the material remedies (taken as a whole) of the Administrative Agent under the Facilities Documentation. | ||
| Affirmative Covenants: | Limited to the following (applicable to only the Borrower and its restricted subsidiaries and, with respect to preservation of existence and further assurances only, Holdings): quarterly unaudited financial statements (for each of the first three fiscal quarters of each fiscal year) within 60 days after such fiscal quarter end (commencing with the first fiscal quarter ending after the Closing Date) (or within 90 days for the first quarterly period ending after the Closing Date and 75 days for the second and third quarterly periods ending after the Closing Date), and annual audited financial statements within 120 days after fiscal year end (commencing with the fiscal year ending after the Closing Date) (or within 150 days for the fiscal year ending December 31, 2027, which such audited financial statements for such fiscal year may, at the option of the Borrower, cover only the period from the Closing Date to the end of such fiscal year) accompanied by an audit opinion (such opinion to be without qualifications as to “going concern” (but may be subject to a “going concern” or “emphasis of matter” explanatory paragraph or like statement) or the scope of the audit (other than with respect to, or disclosure of an exception or qualification resulting from (x) the maturity or termination of any debt or credit facility, (y) any actual or prospective default under any financial covenant or (z) the activities, operations, financial results, assets or liabilities of any unrestricted subsidiary)), in each case, for the Borrower and its subsidiaries; subject to a thirty (30) day extensions for any fiscal year or fiscal quarter, as applicable, in which a material acquisition or material accounting | |
B-20
| change has occurred; prior to an IPO, annual budgets in a form customarily prepared by the Borrower (delivered with the annual compliance certificate); compliance certificates; certain other information concerning the Borrower and its restricted subsidiaries reasonably requested by the Administrative Agent (other than information subject to attorney/client privilege, confidentiality obligations or other customary limitations); notices of defaults and certain other changes that would reasonably be expected to have a Material Adverse Effect; payment of taxes; preservation of existence; maintenance of properties (subject to casualty, condemnation and normal wear and tear); maintenance of customary insurance as determined by the Borrower in good faith; compliance with laws including ERISA, environmental laws, the PATRIOT Act, FCPA and OFAC (with respect to a foreign subsidiary, to the extent not in conflict with a relevant local law); books and records; inspection rights of the Administrative Agent, with exceptions for information subject to attorney-client privilege, confidentiality obligations or other customary limitations consistent with the Documentation Principles; use of proceeds; changes in fiscal year of the Borrower (other than with notice to the Administrative Agent); material changes in line of business (other than reasonably similar, related, corollary, complementary, ancillary, synergistic or incidental businesses); transactions with affiliates above an amount not less than an amount to be agreed in a manner consistent with the Documentation Principles (which shall permit, among other things (i) the payment of annual management or other similar fees, transaction fees and termination fees and expenses and indemnities subject to a cap to be agreed and to directors in an uncapped amount, which, in each case, will be added back to Consolidated EBITDA, (ii) transactions among the Loan Parties and their subsidiaries and, subject to limitations consistent with the Documentation Principles, joint ventures that are not otherwise prohibited by the Facilities Documentation, (iii) fees payable in connection with the Transactions and (iv) other exceptions consistent with the Documentation Principles); covenant to guarantee obligations and give security and further assurances with respect thereto; designation (and redesignation) of unrestricted subsidiaries; and commercially reasonable efforts to maintain corporate level and facility level credit ratings from each of Moody’s and S&P (but not any specific credit rating). | ||
| Limited Conditionality Transactions: |
The Facilities Documentation shall contain customary “Limited Conditionality Transactions” provisions in a manner consistent with the Documentation Principles; provided that the Facilities Documentation will not require the absence of a payment or bankruptcy (with respect to the Borrower) event of default or the accuracy of any representations and warranties in any jurisdiction where such conditions are not customary for limited condition transactions. | |
B-21
| Negative Covenants: | Limited to the following (applicable to the Borrower and its restricted subsidiaries and, in the case of the passive holdings covenant, Holdings): | |
| 1. limitations on the incurrence of debt (which shall permit, among other things, (i) debt under the Facilities (including any incremental or refinancing facility expressly contemplated by the Facilities Documentation), (ii) cash management obligations and non-speculative hedging arrangements, (iii) debt existing on the Closing Date, (iv) additional debt (“Incremental Equivalent/Ratio Debt”) in an amount equal to (A) the greater of (x) 50% of Financing EBITDA and (y) 50% of Consolidated EBITDA calculated on a pro forma basis for the most recently ended Test Period (the amount calculated pursuant to this clause (A), the “Incremental Equivalent/Ratio Debt Starter Basket”), plus (B) the amount of debt that could be incurred under the Incremental Dollar Basket (and in lieu thereof) other than by virtue of the reallocation of the Incremental Equivalent/Ratio Debt Starter Basket, plus (C) the amount of debt that could be incurred under the Incremental Prepayments Basket (and in lieu thereof), plus (D) an unlimited amount secured on a pari passu basis with the Initial Term Facility so long as the First Lien Net Leverage Ratio, on a pro forma basis, does not exceed the greater of (x) 4.32:1.00 and (y) the First Lien Net Leverage Ratio immediately prior to the incurrence of such debt (the amount calculated pursuant to this clause (D), the “Incremental Equivalent/Ratio Debt Basket”), plus (E) an unlimited amount secured on a basis junior to the Initial Term Facility so long as either (x) the Cash Interest Coverage Ratio, on a pro forma basis, is not less than the lesser of (1) 1.50:1.00 and (2) the Cash Interest Coverage Ratio immediately prior to the incurrence of such debt or (y) the Secured Net Leverage Ratio, on a pro forma basis, does not exceed the greater of (1) 4.82:1.00 and (2) the Secured Net Leverage Ratio immediately prior to the incurrence of such debt, subject to the terms of a customary intercreditor agreement (the amount calculated pursuant to this clause (E), the “Incremental Equivalent/Ratio Debt Junior Lien Basket”), plus (F) an unlimited amount that is secured by assets that do not constitute Collateral or that is unsecured so long as either (x) the Cash Interest Coverage Ratio, on a pro forma basis, is not less than the lesser of (1) 1.50:1.00 and (2) the Cash Interest Coverage Ratio immediately preceding the incurrence of such debt or (y) the Total Net Leverage Ratio, on a pro forma basis, does not exceed the greater of (1) 5.32:1.00 and (2) the Total Net Leverage Ratio immediately prior to the incurrence of such debt (the amount calculated pursuant to this clause (F), the “Incremental Equivalent/Ratio Debt Unsecured Basket”); provided that Incremental Equivalent/Ratio Debt will not be subject to the MFN Provision or any maturity or weighted average life to maturity restrictions, (v) debt assumed in connection with a permitted acquisition or other permitted investment and not incurred in contemplation of such acquisition or investment (“Assumed Acquisition Debt”), (vi) purchase money debt and capital leases in an amount not less | ||
B-22
| than (A) the amount of such debt outstanding as of the Closing Date, plus (B) the greater of (x) 75% of Financing EBITDA and (y) 75% of Consolidated EBITDA calculated on a pro forma basis for the most recently ended Test Period, and (C) plus an unlimited amount so long as the First Lien Net Leverage Ratio, on a pro forma basis, does not exceed 4.32:1.00 (the “Purchase Money Capital Lease Basket”); provided that all purchase money debt and capital leases being incurred at such time in reliance on the Purchase Money Capital Lease Basket shall be included in the calculation of the First Lien Net Leverage Ratio for purposes of determining capacity under this basket, (vii) seller notes in connection with acquisitions, (viii) indebtedness in an amount not less than (1) the greater of (x) 100% of Financing EBITDA and (y) 100% of Consolidated EBITDA calculated on a pro forma basis for the most recently ended Test Period plus (2) an amount not to exceed the sum of (x) 200% of the amount of restricted payments that could have been made pursuant to any restricted payment basket in the Facilities Documentation and (y) 100% of the amount of Restricted Junior Debt Payments and Investments that could have been made pursuant to any Restricted Junior Debt Payments or Investments basket in the Facilities Documentation (the “General Debt Basket”), (ix) debt incurred by non-Guarantor subsidiaries in an amount not less than the greater of (x) 75% of Financing EBITDA and (y) 75% of Consolidated EBITDA calculated on a pro forma basis for the most recently ended Test Period plus an amount equal to the amount of such debt outstanding (including undrawn commitments) as of the Closing Date (the “Non-Guarantor Indebtedness Basket”), (x) intercompany debt among the Borrower and its restricted subsidiaries (the “Intercompany Debt Basket”), (xi) debt of joint ventures and/or debt incurred on behalf thereof or representing guarantees of debt of joint ventures in an amount not less than the greater of (x) 50% of Financing EBITDA and (y) 50% of Consolidated EBITDA calculated on a pro forma basis for the most recently ended Test Period (the “JV Indebtedness Basket”), (xii) debt in an aggregate amount up to 200% (the “Contribution Debt Percentage”) of the aggregate cash and in-kind contributions made after the Closing Date to (a) common equity or (b) qualified preferred equity (any such equity or other instruments, together, “Permitted Equity”) of the Borrower that do not increase the Available Amount Basket or the aggregate amount of excluded contributions (the “Contribution Debt Basket”), (xiii) debt incurred to finance an acquisition of any assets in an amount not less than the greater of (x) 75% of Financing EBITDA and (y) 75% of Consolidated EBITDA calculated on a pro forma basis for the most recently ended Test Period and which, for the avoidance of doubt, may be secured to the extent permitted by exceptions to the lien covenant (the “Acquisition Debt Basket”), (xiv) receivables, factoring and securitization facilities, subject to customary | ||
B-23
| limitations on recourse to the Loan Parties, (xv) insurance premium financings, (xvi) disqualified equity issued to and held by the Borrower or any restricted subsidiary, (xvii) debt (including revolving debt) for non-Guarantor subsidiaries to fund working capital requirements, (xviii) debt in respect of additional letters of credit in an amount not less than the greater of (x) 25% of Financing EBITDA and (y) 25% of Consolidated EBITDA calculated on a pro forma basis for the most recently ended Test Period (the “Additional L/C Facility Basket”) and (xx) other exceptions consistent with the Documentation Principles); | ||
| 2. limitations on liens securing debt (which shall permit, among other things, (i) liens securing each Facility (including any incremental, or refinancing facility in respect thereof) and permitted refinancings thereof, (ii) liens existing on the Closing Date, and any permitted refinancings thereof (including any cash collateral backstopping existing letters of credit or similar instruments), (iii) liens securing any Incremental Equivalent/Ratio Debt (it being understood that liens securing debt under the Incremental Equivalent/Ratio Debt Junior Lien Basket shall rank junior to the liens on the Collateral securing the Initial Term Facility), (iv) liens securing any Refinancing Debt (subject to applicable limitations thereunder), (v) liens securing any debt incurred under the Contribution Debt Basket (the “Contribution Debt Liens Basket”), which may, at the Borrower’s option, be subject to the terms of a Specified Intercreditor Agreement, (vi) [reserved], (vii) liens on acquired assets, and the stock of acquired entities, securing debt permitted to be assumed in connection with any permitted acquisition or investment, to the extent such liens encumbered such assets on the date of such acquisition or investment and were not granted in contemplation thereof, (viii) liens securing debt permitted under the General Debt Basket, the basket for Assumed Acquisition Debt, the Purchase Money Capital Lease Basket and the Acquisition Debt Basket, (ix) a general lien basket in an amount not less than the amount of clause (1) of the General Debt Basket (the “General Liens Basket”), which may, at the Borrower’s option, be subject to the terms of a Specified Intercreditor Agreement, (x) liens secured by assets that do not constitute Collateral, (xi) liens securing receivables, factoring and securitization facilities, (xii) liens securing non-speculative hedging arrangements and (xiii) other exceptions consistent with the Documentation Principles); | ||
| 3. limitations on fundamental changes (which shall permit, among other things, (i) intercompany mergers, consolidations, liquidations, shut-downs and dissolutions that are not prohibited by the investments covenant, (ii) Permitted Acquisitions and other permitted investments, (iii) permitted dispositions and (iv) other transactions consistent with the Documentation Principles, in each case, in a manner consistent with the Documentation Principles); | ||
B-24
| 4. limitations on non-ordinary course asset sales (including sale and lease back transactions) of assets with a fair market value in excess of (A) the greater of (x) 15% of Financing EBITDA and (y) 15% of Consolidated EBITDA calculated on a pro forma basis for the most recently ended Test Period per transaction or (B) with respect to all such transactions not excluded by virtue of the foregoing clause (A) the greater of (x) 30% of Financing EBITDA and (y) 30% of Consolidated EBITDA calculated on a pro forma basis for the most recently ended Test Period, in the aggregate for all such transactions in any fiscal year (which shall permit, among other things, (i) sales or dispositions at fair market value on an unlimited basis so long as (other than with respect to any individual disposition involving assets with fair market value not exceeding an amount to be agreed or other dispositions involving assets with fair market value not exceeding an amount to be agreed per fiscal year) at least 75% of the consideration for any disposition, together with all other dispositions undertaken in reliance on this clause (i) since the Closing Date (on a cumulative basis), consists of cash or cash equivalents (subject to customary exceptions to the cash consideration requirement to be set forth in the Facilities Documentation, including a basket in an amount not less than an amount to be set forth in the Facilities Documentation in a manner consistent with the Documentation Principles (with a grower prong) for non-cash consideration that may be designated as cash consideration), (ii) a general dispositions basket in an amount not less than the greater of (x) 30% of Financing EBITDA and (y) 30% of Consolidated EBITDA calculated on a pro forma basis for the most recently ended Test Period per year (with a carry-forward to succeeding fiscal years and a carry-back from future fiscal years), (iii) dispositions of assets with a fair market value per each such disposition not less than the greater of (x) 25% of Financing EBITDA and (y) 25% of Consolidated EBITDA calculated on a pro forma basis for the most recently ended Test Period, (iv) dispositions of assets that do not constitute Collateral having a fair market value in an amount not less than the greater of (x) 10% of Financing EBITDA and (y) 10% of Consolidated EBITDA calculated on a pro forma basis for the most recently ended Test Period per year (with a carry-forward to succeeding fiscal years and a carry-back from future fiscal years), (v) sale and leaseback transactions (x) in an unlimited amount so long as $1 of Incremental Equivalent/Ratio Debt could be incurred, after giving pro forma effect to such transaction or (y) of assets with a fair market value not less than the greater of (1) 50% of Financing EBITDA and (2) 50% of Consolidated EBITDA calculated on a pro forma basis for the most recently ended Test Period and (vi) other exceptions consistent with the Documentation Principles); |
B-25
| 5. limitations on making investments and acquisitions (which shall permit “Permitted Acquisitions” described below and, in addition, permit (i) intercompany investments among Holdings, the Borrower and their restricted subsidiaries (the “Intercompany Investments Exception”), (ii) investments in connection with the Transactions, (iii) investments using the Available Amount Basket as set forth below, (iv) investments so long as the pro forma First Lien Net Leverage Ratio does not exceed the greater of (x) a First Lien Net Leverage Ratio of 5.00:1.00, (y) the First Lien Net Leverage Ratio on the Closing Date plus 0.75:1.00 and (z) the First Lien Net Leverage Ratio immediately prior to making such investment (the “Leverage Based Investments Exception”), (v) a general basket in an amount not less than the greater of (x) 125% of Financing EBITDA and (y) 125% of Consolidated EBITDA calculated on a pro forma basis for the most recently ended Test Period (the “General Investments Basket”), (vi) investments in similar businesses in an amount not less than the greater of (x) 75% of Financing EBITDA and (y) 75% of Consolidated EBITDA calculated on a pro forma basis for the most recently ended Test Period, (vii) investments in joint ventures in an amount equal to the amount of such investments outstanding on the Closing Date plus additional investments in joint ventures in an amount not less than the greater of (x) 50% of Financing EBITDA and (y) 50% of Consolidated EBITDA calculated on a pro forma basis for the most recently ended Test Period, (viii) investments (including in joint ventures) in connection with internal re-organizations and or restructurings (including in connection with tax planning and corporate re-organizations), so long as, after giving effect thereto, the security interest of the Lenders in the Collateral, taken as a whole, is not materially impaired (each, a “Permitted Reorganization”) and transactions taken in connection with and reasonably related to consummating an initial public offering so long as, after giving effect thereto, the security interest of the Lenders in the Collateral, taken as a whole, is not materially impaired or reduced (an “IPO Reorganization Transaction”), (ix) acquisitions of investments in joint ventures to the extent required by, or made pursuant to, applicable buy/sell or put/call arrangements and/or other similar binding arrangements, (x) investments held by the Target and its subsidiaries, or with respect to which binding commitments of the Target and its subsidiaries exist, in each case on the Closing Date and that are permitted under the Voyage Acquisition Agreement and (xi) other exceptions consistent with the Documentation Principles); |
B-26
| 6. limitations on dividends or distributions on, or redemptions of, Borrower’s equity (which shall permit, among other things, (i) payments or distributions to pay (x) tax distributions in accordance with the limited liability company agreement of Silgan Metal Packaging LLC as in effect on the Closing Date or modified thereafter in a manner not materially adverse to the Lenders and (y) legal, accounting and other ordinary course corporate overhead or other operational expenses of any such parent (including, if applicable, any public company costs) and for the payment of franchise or similar taxes required to maintain such parent’s existence, (ii) customary distributions necessary to pay advisory, refinancing, subsequent transaction and exit fees of direct and indirect parents of the Borrower attributable to the ownership of the Borrower and its subsidiaries and joint ventures, (iii) dividends, distributions or redemptions with the Available Amount Basket as set forth below, (iv) a general basket in an amount not less than (1) the greater of (x) 75% of Financing EBITDA and (y) 75% of Consolidated EBITDA calculated on a pro forma basis for the most recently ended Test Period plus (2) the amount by which the Investor Equity Investment exceeds the Minimum Equity Contribution (to the extent not otherwise applied to increase basket capacity with the proceeds of such contribution) (the “General Restricted Payments Basket”), (v) dividends, distributions or redemptions in connection with the Transactions (including any such transactions contemplated by the Voyage Acquisition Agreement or the JV Acquisition Agreement), (vi) distributions to fund the repurchase or redemption of the capital stock of Holdings or its direct or indirect parents held by future, current or former directors, officers, employees, members of management and consultants and/or their respective estates, heirs, family members, spouses, domestic partners, former spouses or former domestic partners in an annual amount not less than the greater of (x) 15% of Financing EBITDA and (y) 15% of Consolidated EBITDA calculated on a pro forma basis for the most recently ended Test Period, with the percentages in each of sub-clause (x) and (y) increasing to 25% following the occurrence of a qualifying IPO, plus, in each case, key man insurance proceeds, (vii) restricted payments made in an amount equal to excluded contributions, (viii) additional dividends, distributions or redemptions so long as there is no payment or bankruptcy event of default and the pro forma First Lien Net Leverage Ratio does not exceed the greater of (i) 4.50:1.00 and (ii) the First Lien Net Leverage Ratio as of the Closing Date plus 0.25:1.00 (the “Leverage Based RP Exception”), (ix) Permitted IPO Distributions (as defined below), (x) restricted payments constituting any part of a Permitted Reorganization or IPO Reorganization Transaction, (xi) additional dividends, distributions or redemptions with the net proceeds received from the sale of the Trivium Aerosols business (or any division thereof) in an amount not to exceed (i) the amount by which the Investor Equity Investment exceeds the Minimum Equity Contribution (to the extent not otherwise |
B-27
| applied to increase basket capacity with the proceeds of such contribution) plus (ii) additional amounts so long as such proceeds are also used to prepay the Initial Term Facility on a pro rata basis based on the amount of Term Loans funded on the Closing Date and the Equity Contribution made on the Closing Date (the “ Specified Asset Sale RP Basket ”) and (xii) other exceptions consistent with the Documentation Principles); | ||
| 7. limitations on cash prepayments or redemptions of principal of any material third party contractually payment subordinated debt for borrowed money (“Junior Debt”) more than one year prior to the stated maturity thereof (and excluding, for the avoidance of doubt, regularly scheduled interest payments and payment of fees, expenses and indemnification obligations) (“Restricted Junior Debt Payments”) (which shall permit, among other things (i) refinancing or exchanges of Junior Debt for other permitted debt, (ii) conversion of Junior Debt to, or prepayments or redemptions with the proceeds of, permitted equity issuances that do not increase the Available Amount Basket or the aggregate amount of excluded contributions and are not used to incur debt pursuant to the Contribution Debt Basket, (iii) prepayments or redemptions using the Available Amount Basket as set forth below, (iv) so long as there is no payment or bankruptcy (with respect to the Borrower) event of default, a general basket in an amount not less than the greater of (x) 75% of Financing EBITDA and (y) 75% of Consolidated EBITDA calculated on a pro forma basis for the most recently ended Test Period (the “General Junior Debt Basket”), (v) additional prepayments or redemptions so long as there is no payment or bankruptcy event of default and the pro forma First Lien Net Leverage Ratio does not exceed the greater of (i) 4.75:1.00 and (ii) the First Lien Net Leverage Ratio as of the Closing Date plus 0.50:1.00 (the “Leverage Based Junior Debt Exception”), (vi) prepayments and redemptions with respect to AHYDO “catch-up” payments and (vii) other exceptions consistent with the Documentation Principles); and | ||
| 8. limitations on negative pledge clauses (which shall include exceptions consistent with the Documentation Principles). | ||
| In addition, Holdings will be subject to a covenant relating to its passive holding company status in a manner consistent with the Documentation Principles. | ||
| The Borrower shall be permitted to, without duplication, (i) reallocate amounts available for investments under the investments covenant to make additional restricted payments and Restricted Junior Debt Payments (the “Available Investment Amount Basket”), (ii) reallocate amounts available for Restricted Junior Debt Payments under the Restricted Junior Debt Payments covenant to make additional | ||
B-28
| investments and restricted payments (the “Available RDP Amount Basket”) and (iii) reallocate amounts available for restricted payments under the restricted payments covenant to make additional investments and Restricted Junior Debt Payments (the “Available RP Amount Basket”), in each case, subject to a dollar for dollar reduction of such investment, Restricted Junior Debt Payment and/or restricted payment capacity upon utilization thereof (or with respect to investments made in reliance on the Available RP Amount Basket, every $1.5 utilized shall count as $1.0 of basket usage) and dollar for dollar increases by the amount of any returns (or with respect to the making of investments in reliance on the Available RP Amount Basket, by $1.0 for every $1.5 of returns on such Investments). | ||
| If any amount is incurred (including under the Revolving Facility) or transaction entered into (or consummated) in reliance on a provision that does not require compliance with a financial ratio or test (any such amount, the “Fixed Amount”) substantially concurrently with any amount incurred or transaction entered into (or consummated) in reliance on a provision that requires compliance with a financial ratio or test (any such amount, the “Incurrence-Based Amount”), (x) incurrence of such amount under the Incurrence-Based Amount shall first be calculated without giving effect to any amount incurred under the Fixed Amount, but giving full pro forma effect to the use of proceeds of all such amounts and concurrent related transactions and (y) thereafter, incurrence of the portion of such amount under the Fixed Amount shall be calculated. Unless the Borrower elects otherwise, the Borrower shall be deemed to have used amounts under an Incurrence-Based Amount then available to the Borrower prior to utilization of any amount under a Fixed Amount then available to the Borrower. The Borrower may re-designate any debt, lien, restricted payment, payment or redemption of Junior Debt, investment or disposition (each a “Reclassifiable Item”) originally incurred or designated as incurred under any exception as having been incurred under another exception so long as at the time of such re-designation, the Borrower would be permitted to incur or make such Reclassifiable Item under such other applicable exception (or would have been permitted to incur or make such Reclassifiable Item under such other applicable exception, in which case, such reclassification shall be deemed to have automatically occurred if not elected by the Borrower). For the avoidance of doubt, the provisions of this paragraph and the preceding paragraph shall also apply to any Incremental Term Facility. | ||
| Permitted Acquisitions: | Any acquisition (including any investment in any person which serves to increase the Borrower’s or a restricted subsidiary’s ownership in such person) shall be permitted so long as (the “Permitted Acquisition Conditions”) no payment or bankruptcy (with respect to the Borrower) event of default has occurred and is continuing at the relevant time as determined pursuant to the “Limited Conditionality Transactions” section above. | |
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| Permitted IPO Distributions: | After a qualifying IPO, restricted payments in an amount, on an annual basis, equal to the sum of (a) an amount equal to 8.00% of the net proceeds received by (or contributed to) the Borrower from such IPO (including any follow on offering) and (b) an amount equal to 8.00% of the market capitalization of the Borrower or its direct or indirect parent (“Permitted IPO Distributions”). | |
| Available Amount Basket: |
The negative covenants shall include an “Available Amount Basket” in a cumulative amount equal to (a) the greater of (x) 100% of Financing EBITDA and (y) 100% of Consolidated EBITDA calculated on a pro forma basis for the most recently ended Test Period (the “Available Amount Starter Basket”) plus (b) the greatest of (at the time of determination) (x) 100% of cumulative retained excess cash flow (which amount shall not be less than zero in any fiscal year), (y) 50% of cumulative Consolidated Net Income from the first day of the fiscal quarter in which the Closing Date occurs (which amount shall not be less than zero in any fiscal quarter) or (z) the sum of 100% of the cumulative Consolidated EBITDA minus 140% of the cumulative amount of fixed charges since the Closing Date (which amount shall not be less than zero) (this clause (b), the “Available Amount Grower Prong”) and Retained Asset Sale Proceeds, plus (c) the Declined Amounts, plus (d) the cash proceeds contributed to the Borrower of new public or private equity issuances of Holdings or any parent thereof after the Closing Date, plus (e) capital contributions to the Borrower in respect of Permitted Equity made in cash or cash equivalents and the fair market value (as determined in good faith by the Borrower) of any other property contributed to the Borrower after the Closing Date, plus (f) the net cash proceeds received by the Borrower or any restricted subsidiary from debt and disqualified stock issuances that have been issued after the Closing Date and which have been exchanged or converted into Permitted Equity, together with the fair market value of the other assets contributed to the Borrower, plus (g) the proceeds of sales of investments made under the Available Amount Basket and certain other investments, plus (h) other customary prongs in a manner consistent with the Documentation Principles. | |
| The Available Amount Basket may be used for making investments, incurring debt, incurring liens, paying dividends and distributions and the prepayment or redemption of Junior Debt. | ||
| Financial Covenant: | Term Facility: None. | |
| Revolving Facility: A maximum springing First Lien Net Leverage Ratio (the “Financial Covenant”) of the Borrower and its restricted subsidiaries of 7.75:1.00. | ||
| Compliance with the Financial Covenant will be tested quarterly with respect to the Borrower and its restricted subsidiaries on a consolidated basis, beginning on the last day of the second full fiscal quarter following the Closing Date; provided, that notwithstanding anything | ||
B-30
| herein to the contrary such Financial Covenant will be tested only on the last day of an applicable fiscal quarter if outstanding revolving loans (excluding (i) for the first four fiscal quarters in which the Financial Covenant is subject to testing, drawings on the Closing Date, (ii) drawings to fund Flex OID, (iii) cash collateralized letter of credit obligations and (iv) undrawn letter of credit obligations) exceed 40% of the then outstanding commitments in respect of the Revolving Facility on such date (the “Testing Threshold”); provided, further, that the Borrower may repay Revolving Loans at any time on or prior to the date on which financial statements are delivered for the applicable fiscal quarter and the Testing Threshold shall be recalculated to give pro forma effect to such repayment as if made as of the last day of such fiscal quarter. No other Facility will have the benefit of, or any rights with respect to, the Financial Covenant. | ||
| If any “market flex” is actually exercised (pursuant to the provisions set forth in the Fee Letter), the covenant level for the Financial Covenant shall be adjusted in the Facilities Documentation (or pursuant to an amendment thereto) to implement the exercise of such “market flex” provisions in order to maintain the cushion described above (before giving effect to such Facilities Documentation adjustment or amendment, as applicable). For purposes of determining compliance with the Financial Covenant, any cash equity contribution (other than disqualified equity) made to the Borrower during such fiscal quarter or after the last day of the fiscal quarter (and not otherwise applied) and on or prior to the day that is fifteen (15) business days after the day on which the compliance certificate is required to be delivered for such fiscal quarter (the “Cure Period”) will, at the request of the Borrower, be included in the calculation of Consolidated EBITDA for the purposes of determining compliance with the Financial Covenant at the end of such fiscal quarter and applicable subsequent periods which include such fiscal quarter (any such equity contribution so included in the calculation of Consolidated EBITDA, a “Specified Equity Contribution”); provided that (a) in each four consecutive fiscal quarter period, there shall be at least two fiscal quarters in respect of which no Specified Equity Contribution is made, (b) no more than five Specified Equity Contributions may be made during the term of the Revolving Facility, (c) the amount of any Specified Equity Contribution shall be no greater than the amount required to cause the Borrower to be in compliance with the Financial Covenant, (d) subject to clause (e) below, Specified Equity Contributions shall be disregarded for purposes of any financial ratio determination under the Facilities Documentation other than for purposes of determining compliance with the Financial Covenant and (e) there shall be no pro forma reduction in the amount of outstanding indebtedness with the proceeds of any Specified Equity Contribution for purposes of determining compliance with the Financial Covenant solely for the fiscal quarter for which the Specified Equity Contribution is made. | ||
| Any resulting event of default or potential event of default shall be deemed retroactively not to have occurred, subject to the terms and | ||
B-31
| conditions set forth above; provided, that no lender or letter of credit issuer shall be required to fund Revolving Loans or issue new Letters of Credit or extend or increase existing Letters of Credit unless and until the Specified Equity Contribution is made; provided, further, that if the Specified Equity Contribution is not made before the expiration of the Cure Period, such event of default or potential event of default shall be deemed reinstated. Neither the Administrative Agent nor any Lender shall exercise the right to accelerate any Loans or terminate the commitments and none of the Administrative Agent, any Lender or any other secured party shall exercise any right to foreclose on or take possession of the Collateral or exercise any other remedy prior to the expiration of the Cure Period solely on the basis of an event of default having occurred and being continuing with respect to the Financial Covenant. | ||
| Unrestricted Subsidiaries: | The Facilities Documentation will contain provisions pursuant to which, subject to customary limitations on loans, advances and other investments in unrestricted subsidiaries, the Borrower will be permitted to designate any existing or subsequently acquired or organized subsidiary of the Borrower as an “unrestricted subsidiary” (with any subsidiary of an unrestricted subsidiary constituting an unrestricted subsidiary) and subsequently re-designate any such unrestricted subsidiary as a restricted subsidiary, so long as (a) any such designation of a restricted subsidiary as an unrestricted subsidiary shall be deemed to constitute an investment in such unrestricted subsidiary at such time and (b) any such redesignation of any unrestricted subsidiary as a restricted subsidiary shall be deemed to constitute the incurrence of debt and liens of such subsidiary (and reduction in an outstanding investment) at such time. Unrestricted subsidiaries will not be subject to the representations and warranties, mandatory prepayments, affirmative and negative covenants and events of default in the Facilities Documentation and the results of operations and debt and cash of unrestricted subsidiaries will not be taken into account for purposes of the Facilities Documentation. | |
| Notwithstanding the foregoing, the Borrower shall not be permitted to designate any subsidiary that holds Material Intellectual Property as an unrestricted subsidiary and neither the Borrower nor any restricted subsidiary shall be permitted to contribute, sell, transfer or otherwise dispose of any Material Intellectual Property to an unrestricted subsidiary; provided that the foregoing shall not prohibit any (x) non-exclusive lease or non-exclusive license of an intellectual property to any unrestricted subsidiary, (y) any exclusive lease or exclusive license of any intellectual property to an unrestricted subsidiary that constitutes an exclusive lease or exclusive license solely with respect or the use of such intellectual property in a particular geography in which the Borrower and its restricted subsidiaries do not then engage in substantial operations, or a particular business or product line with respect to which the Borrower and its restricted subsidiaries are not then engaged, or is not material to the business of the Borrower and its restricted subsidiaries, taken as a whole, or (z) development by such unrestricted subsidiaries of intellectual property. | ||
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| “Material Intellectual Property” means any intellectual property owned by the Borrower or any restricted subsidiary that is, in the good faith determination of the Borrower, material to the operation of the business of the Borrower and its restricted subsidiaries, taken as a whole. | ||
| Events of Default: | Limited to the following (applicable to the Borrower and its restricted subsidiaries and in certain cases consistent with the Documentation Principles, Holdings) (with each threshold growing based on the Consolidated EBITDA of the Borrower and its restricted subsidiaries): nonpayment of principal, interest or fees (with a five business day grace period for interest, fees and other amounts) (in each case provided that a failure to pay caused by administrative or technical error shall not constitute an event of default if payment is made within five business days of the discovery of such error); failure to perform negative covenants; failure to perform affirmative covenants to (x) provide notice of defaults (subject to cure once provided and an event of default resulting from failure to provide notice of a default shall be cured upon curing the underlying event of default) and (y) maintain the Borrower’s corporate existence; failure to perform other covenants subject to a 30-day cure period after notice by the Administrative Agent; incorrectness in any material respect of (i) any Specified Representation on the Closing Date and (ii) any other representation when made or deemed made after the Closing Date (subject, if such incorrectness is able to be cured, to a 30-day grace period following notice from the Administrative Agent); cross-event-of-default and cross-acceleration to other debt of a Loan Party or any restricted subsidiary in an amount in excess of an amount to be agreed (after all applicable grace and notice periods) (provided that any breach of a financial maintenance covenant in other debt of a Loan Party or any restricted subsidiary shall not trigger an event of default unless and until the applicable lenders of such other debt have caused all amounts thereunder to become due and terminated any further commitments to lend under agreements governing such other debt) (provided, further, that Borrower’s failure to perform or observe the Financial Covenant itself shall not constitute an Event of Default for purposes of any Term Loan (including any term loans incurred under any Incremental Term Facilities) unless and until the Revolving Lenders holding at least a majority of the Revolving Loans and revolving commitments have actually declared all such obligations to be immediately due and payable and terminated the commitments under the Revolving Facility in accordance with the Facilities Documentation and such declaration has not been rescinded), bankruptcy or other similar events of Holdings or its significant restricted subsidiaries that are Loan Parties (with a 60-day grace period for involuntary events); final monetary judgment defaults against the Borrower or its significant restricted subsidiaries that are Loan Parties in an amount in excess of the cross event-of-default threshold (after netting insurance and third party indemnities) (subject to a 60-day grace period); ERISA defaults subject to Material Adverse Effect; invalidity of any material Facilities Documentation; and change of control (to include a pre- and post-qualifying IPO provision). | |
B-33
| Notwithstanding the foregoing, no exercise of remedies under any Facility may occur with respect to any action taken and reported to the Administrative Agent or Lenders, more than two years prior to such exercise of remedies (unless the Administrative Agent has commenced remedial action with respect thereto prior to the end of such two year period) (the “Two Year Default Limitation”). | ||
| Notwithstanding the foregoing, any event of default or similarly defined term in the Facilities Documentation (including any event of default resulting from the failure to provide notice thereof) shall automatically be deemed not to be “continuing” or “existing” if the events, acts or conditions that gave rise to such event of default (x) have been remedied or cured (including by payment, notice, taking of any action or omitting to take any action) or (y) have ceased to exist. | ||
| Voting: | Amendments and waivers of the Facilities Documentation will require the approval of Lenders holding more than 50% of the aggregate amount of the loans and commitments under the Facilities (the “Required Lenders”) (provided that the aggregate amount of the loans and commitments under the Facilities of any Lender that fails to respond to a request for an amendment prior to the applicable deadline shall be excluded from the denominator of such calculation (the “Snooze-Lose Provision”)), except that (i) the consent of each Lender directly and adversely affected thereby (but not the consent of the Required Lenders or of any other majority or required percentage of the Lenders of any facility or tranche, or any other Lenders) shall be required with respect to (a) any increase in the commitment of such Lender (provided that a waiver of any condition precedent, any default, event of default or mandatory prepayment shall not constitute such an increase), (b) any reduction of principal, interest or fees due to such Lender (provided that a waiver of default interest, the MFN Provision, any condition precedent, any default, event of default or mandatory prepayment, or change to a financial ratio (or any component definition thereof), shall not constitute such a reduction) and (c) any extension of the final maturity or the scheduled due date of any principal, interest or fee payment due to such Lender (other than a waiver of any condition precedent, any default, event of default or mandatory prepayment) and other than extensions for administrative convenience as agreed by the Administrative Agent and (d) any amendments or modifications to the pro rata sharing or “waterfall” provisions (subject to the succeeding paragraph)) (which shall not prohibit certain transactions and actions to be agreed, including open market purchases and other privately negotiated transactions, loan buy backs and amend and extend transactions), (ii) the consent of each Lender shall be required with respect to (x) except as otherwise permitted by the Facilities Documentation, a release of all or substantially all of the guarantees made by the Guarantors or a release of all or substantially all of the Collateral and (y) any reduction of any voting percentage set forth in the | |
B-34
| definition of “Required Lenders”, (iii) the consent of the Administrative Agent shall be required with respect to amendments directly and adversely affecting its rights and duties, (iv) any amendment or waiver that by its terms affects the rights or duties of Lenders holding loans or commitments of a particular class (but not the Lenders holding loans or commitments of any other class) will require only the requisite percentage in interest of the affected class of Lenders that would be required to consent thereto if such class of Lenders were the only class of Lenders and (v) any amendment to implement an Incremental Facility, “amend and extend” transaction or permitted refinancing shall require the consent of the participating Lenders (but not the consent of the Required Lenders or any of any other majority or required percentage of the Lenders of any facility or tranche, or any other Lenders). It is agreed that (i) any applicable intercreditor agreement may be entered into or amended solely with the consent of the Administrative Agent to give effect thereto or to carry out the purposes thereof and (ii) there shall be no “class” voting requirement for amendments, modifications or supplements to the Facilities Documentation. | ||
| The Facilities Documentation shall provide that any amendment to the “waterfall” provisions to subordinate any loans or the contractual subordination of payment or lien priority of the Initial Term Facility or the Revolving Facility, as applicable, on the one hand, to any other indebtedness for borrowed money (such other indebtedness, the “Priming Indebtedness”), on the other hand, in connection with the exchange of the Initial Term Facility or the Revolving Facility, as applicable, for such Priming Indebtedness or the repayment of Initial Term Loans or Revolving Loans, as applicable, with the proceeds of such Priming Indebtedness (a “Priming Transaction”), as applicable, shall require the consent of all directly and adversely affected Lenders under the Initial Term Facility or the Revolving Facility, as applicable, in each case, subject to exceptions for (x) transactions expressly permitted in the Facilities Documentation and (y) any Priming Transaction in which the Borrower offered the applicable Lenders that were directly and adversely affected by such subordination at the time of the applicable Priming Transaction an opportunity to ratably participate in the applicable Priming Transaction on the same terms as the other lenders participating in such Priming Transaction (other than with respect to backstop fees, any arrangement or restructuring fees and reimbursement of counsel fees and other expenses in connection with the negotiation of the terms of such transaction). | ||
| Except as otherwise set forth herein, the consent of the Administrative Agent (but not the Required Lenders or any other Lender) will be required to effectuate any amendment to the Facilities Documentation that adds one or more provisions to the Facilities Documentation that are, in the reasonable judgment of the Administrative Agent, more favorable to the Lenders. | ||
B-35
| The Facilities Documentation shall contain customary provisions (x) relating to “defaulting” agents (including for insolvency) and, if applicable, the replacement of the Administrative Agent and (y) allowing the Borrower to replace (and/or, on a non-pro rata basis, terminate commitments and/or make prepayments of the loans of) a Lender in connection with (i) amendments and waivers requiring the consent of all Lenders or all Lenders directly affected thereby (so long as the Required Lenders or at least a majority (in dollar amount) of the Lenders directly and adversely affected thereby, as applicable, have consented to such amendment or waiver and such Lender has not consented to such amendment or waiver) and (ii) requests for compensation for increased costs, taxes and similar items. | ||
| Any Lender (other than any regulated bank) that, as a result of any total return swap, total rate of return swap, credit default swap or other derivative contract (other than any such total return swap, total rate of return swap, credit default swap or other derivative contract entered into pursuant to bona fide market making activities), has a net short position with respect to the Facilities or the Initial Term Facility and commitments under any of the Facilities shall have no right to vote any of its interest under the Facilities. In connection with any such amendment or waiver, each Lender will either be required to notify the Administrative Agent that it has such a net short position with respect to the loans and commitments under the applicable Facilities or otherwise be deemed to have represented to the Borrower and the Administrative Agent that it does not have such a net short position. Each Lender will agree, upon the request of the Borrower, to disclose the amount of any short position with respect to the Facilities held by such Lender or its affiliates. | ||
| In addition, if the Administrative Agent and the Borrower shall have jointly identified an obvious error, mistake or ambiguity or any error or omission of a technical or administrative nature in the Facilities Documentation, then the Administrative Agent and the Borrower shall be permitted to amend such provision without further action or consent of any other party. | ||
| Assignments and Participations: |
After the Closing Date, the Lenders will be permitted to assign (other than to any natural person, any investment vehicle established primarily for the benefit of a natural person or Disqualified Institution) (a) loans and/or commitments under the Initial Term Facility or any Incremental Term Facility with the consent of the Borrower (any such consent shall be deemed to be given after ten business days’ notice if the Borrower fails to respond) and the Administrative Agent (in each case not to be unreasonably withheld or delayed) and (b) loans and commitments under the Revolving Facility with the consent of the Borrower (which may be withheld in its sole discretion), the Swingline Lender and the Issuing Bank (not to be unreasonably withheld or delayed); provided that (A) the Borrower may, in its sole discretion, withhold its consent to any assignment to (x) any person that is not a Disqualified Institution but is known by the Borrower to be an affiliate of a Disqualified Institution regardless of whether such person is identifiable as an | |
B-36
| affiliate of a Disqualified Institution on the basis of such affiliate’s name or (y) any person (including any person that manages or advises funds) that invests (directly or indirectly through affiliates) in distressed debt, “special situations” or “opportunities”, (B) no consent of the Borrower shall be required after the occurrence and during the continuance of a payment or bankruptcy (with respect to the Borrower) event of default, (C) no consent of the Administrative Agent or the Borrower shall be required if such assignment is to (x) in the case of an assignment by a Term Lender, another Lender, an affiliate of a Lender or approved fund or (y) in the case of an assignment by a Revolving Lender, another Revolving Lender or an affiliate or approved fund of another Revolving Lender in the business of providing revolving facilities and (D) no consent of the Administrative Agent shall be required for any assignment to the Borrower or any of its affiliates if such assignment is made in accordance with the terms set forth below; provided, further, that Goldman Sachs may assign its loans and commitments to Goldman Sachs Lending Partners LLC without the consent of any party. Each assignment (other than to another applicable Lender, an affiliate of an applicable Lender or an approved fund) will be in an amount of $1.0 million (or an integral multiple of $1.0 million in excess thereof) (or lesser amounts, if agreed between the Borrower and the Administrative Agent) or, if less, all of such Lender’s remaining loans and commitments of the applicable class. The Administrative Agent shall receive a processing and recordation fee of $3,500 for each assignment (it being understood that (x) such fee may be waived or reduced in the sole discretion of the Administrative Agent and (y) such fee shall not apply to any assignment by or to the Borrower or any of its affiliates if such assignment is made in accordance with the terms set forth below). Any assigning Lender shall, in connection with any potential assignment, provide to the Borrower a copy of its request (including the name of the prospective assignee) concurrently with its delivery of the same request to the Administrative Agent irrespective of whether or not a payment or bankruptcy default or event of default has occurred and is continuing. | ||
| Each Lender may sell participations (other than to any natural person, any investment vehicle established primarily for the benefit of a natural person or Disqualified Institution) in all or a portion of its loans and commitments under the Initial Term Facility or the Revolving Facility; provided that (i) voting rights of participants shall be limited to matters set forth under “Voting” above with respect to which the unanimous vote of all Lenders (or all directly and adversely affected Lenders, if the participant is directly and adversely affected) would be required (and shall not include the right to vote on waivers of defaults or events of default) and (ii) the consent of the Borrower (not to be unreasonably withheld or delayed) shall be required for participations of the Revolving Facility. No participant will be entitled to a gross-up or yield protection payment in an amount greater than the amount, if any, owed to the selling Lender, unless such entitlement to a greater amount results from a change in law after the participant acquired the participation. | ||
B-37
| Each assignee shall be required to represent that it is not a Disqualified Institution or an affiliate of a Disqualified Institution to the extent that such assignee has received, upon its request, a list of Disqualified Institutions. The Administrative Agent, in its capacity as such, shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the foregoing provisions relating to Disqualified Institutions. | ||
| In addition, non-pro rata distributions will be permitted in connection with loan buy-back or similar programs, assignments to, and open market purchases or other privately negotiated purchases by, the Borrower and its affiliates on the terms set forth below. | ||
| An assignment of Term Loans or Incremental Term Loans to any affiliate of the Borrower (other than Holdings and its restricted subsidiaries and natural persons) (each, an “Affiliated Lender”) shall be permitted subject to the following limitations; provided that an Affiliated Lender that is a bona fide debt fund or an investment vehicle engaged in, or that advises funds or other investment vehicles that are engaged in, making, purchasing, holding or otherwise dealing in commercial loans, bonds and similar extensions of credit or securities in the ordinary course (each, a “Debt Fund Affiliate”), will be subject solely to the Debt Fund Affiliate Limitation (as defined below) and shall be deemed not to be an Affiliated Lender for purposes of any other limitation below: | ||
| 1. Affiliated Lenders will not receive any “lender only” information and will not be permitted to attend/participate in “lender only” meetings; | ||
| 2. for purposes of any amendment, waiver or modification of the Facilities Documentation (other than any such amendment, waiver or modification that requires the consent of each Lender, each affected Lender, affects such Affiliated Lender as compared to other Lenders in a disproportionately adverse manner or that deprives such Affiliated Lender of its pro rata share of any payments to which it is entitled, as to which items each Affiliated Lender shall have the right to vote), Affiliated Lenders will be deemed to have voted in the same proportion as non-affiliated Lenders voting on such matter; | ||
| 3. the amount of Term Loans or Incremental Term Loans held by Affiliated Lenders (other than Debt Fund Affiliates) may not exceed 25% of the outstanding principal amount of such loans under such facility (determined as of the time of any purchase and after giving effect to any substantially simultaneous cancellation thereof); and | ||
| 4. for purposes of determining whether the Required Lenders have consented to any amendment or waiver under the Facilities Documentation, the aggregate amount of Loans held by Debt | ||
B-38
| Fund Affiliates will be excluded to the extent in excess of 49.9% of the amount required to constitute the “Required Lenders”; it being understood and agreed that any Loans above such threshold shall be deemed to be voted pro rata to the relevant class of Lenders that are not Debt Fund Affiliates (the “Debt Fund Affiliate Limitation”). | ||
| The Facilities Documentation shall permit (but not require) any Affiliated Lender to contribute any purchased Term Loans to the Borrower or any of its direct or indirect parents or subsidiaries for cancellation and to receive in exchange therefor debt or equity securities of such entity or direct or indirect parent or subsidiary thereof that are otherwise permitted to be issued by such entity at such time, any such contribution to the Borrower or any of its subsidiaries shall be treated as an equity contribution that builds the Available Amount Basket by an amount equal to the fair market value of the Term Loans so contributed; provided that if the fair market value of such Term Loans cannot be ascertained by the Borrower, the fair market value shall be deemed to be the purchase price of such Term Loans paid by such Affiliated Lender. | ||
| Assignments of Term Loans or Incremental Term Loans to Holdings or any of its subsidiaries shall be permitted, pursuant to open market purchases or other privately negotiated transactions, “Dutch auctions” so long as (i) in the case of “Dutch auctions”, any offer to purchase or take by assignment shall have been made to all Lenders within the applicable facility pro rata (with buyback mechanics to be consistent with the Documentation Principles) and (ii) in the case of any assignment to the Borrower or any of its restricted subsidiaries, such Loans are immediately and automatically cancelled to the extent permitted by applicable law. | ||
| In connection with any assignment or purchase otherwise permitted, neither the Borrower nor the Sponsors or any of their affiliates shall be required to make any representation that it is not in possession of material nonpublic information with respect to Holdings, the Borrower, its subsidiaries or their respective securities. | ||
| Yield Protection: | The Facilities Documentation shall contain customary yield protection provisions protecting the Lenders against increased costs or loss of yield resulting from changes in reserve, capital adequacy and other requirements of law and from the imposition of or changes in certain withholding or other taxes in a manner consistent with the Documentation Principles. | |
| Expenses and Indemnification: |
If the Closing Date occurs, the Borrower shall pay, without duplication, (a) all reasonable and documented out-of-pocket expenses of each Lead Arranger (within 30 days of a written demand therefor, together with backup documentation supporting such reimbursement request), associated with the syndication of the Facilities and the preparation, negotiation, execution, delivery and administration of the Facilities | |
B-39
| Documentation and any amendment or waiver with respect thereto (provided that the legal fees will be limited to the reasonable fees, disbursements and other charges of one counsel and, if necessary, of one local counsel in each relevant material jurisdiction, in each case to such persons taken as a whole (provided that such obligation to reimburse legal fees incurred on or prior to the Closing Date shall be limited as set forth in the Commitment Letter)) and (b) all reasonable and documented out-of-pocket expenses of the Administrative Agent and the Lenders within 30 days of a written demand therefor, together with backup documentation supporting such reimbursement request, in connection with the enforcement of the Facilities Documentation (provided that the legal fees will be limited to the reasonable fees, disbursements and other charges of one counsel and, if necessary, of one local counsel in each relevant material jurisdiction, in each case to such persons taken as a whole). | ||
| The Borrower will, without duplication, indemnify and hold harmless the Administrative Agent, each Lead Arranger, each Lender and their respective affiliates and their directors, officers, employees, controlling persons, members, agents, advisors and other representatives, successors and permitted assigns within 30 days of a written demand therefor, together with backup documentation supporting such reimbursement request, from and against all losses, claims, damages, liabilities and expenses arising out of or relating to the Initial Term Facility, any other aspect of the Transactions, the Borrower’s use of loan proceeds or the commitments (provided that legal fees, disbursements and other charges will be limited to the reasonable fees, disbursements and other charges of (i) one counsel to the indemnified parties taken as a whole, (ii) if necessary, one local counsel in each relevant material jurisdiction and (iii) in the case of any actual or perceived conflict of interest, additional counsel to each group of similarly situated indemnified parties taken as a whole, limited to one such additional counsel and one local counsel in each relevant material jurisdiction). The indemnification provisions will not apply to losses, claims, damages, liabilities and expenses that (x) arise from a dispute that does not involve any action or omission of the Borrower or any of its affiliates and is solely among the indemnified parties (other than any claims against an indemnified person in its capacity as the Administrative Agent or a Lead Arranger) or (y) are found in a final, non-appealable judgment by a court of competent jurisdiction to have resulted from an indemnified person’s bad faith, gross negligence, willful misconduct or material breach of the obligations of any such indemnified person under the Facilities Documentation. Notwithstanding the foregoing, each indemnified person shall be obligated to refund and return any and all amounts paid by the Borrower to such indemnified person for fees, expenses or damages to the extent such indemnified person is not entitled to payment of such amounts in accordance with the terms hereof, as determined by a final and non-appealable judgment of a court of competent jurisdiction. | ||
| Governing Law and Forum: | New York. | |
| Counsel to the Administrative Agent and Lead Arrangers: |
Cahill Gordon & Reindel LLP. | |
B-40
ANNEX I TO EXHIBIT B
INTEREST AND CERTAIN FEES
| Interest Rate Options: | The Borrower may elect that the loans comprising each borrowing bear interest at a rate equal to either: (a) the ABR plus the Applicable Margin or (b) the applicable Benchmark Rate plus the Applicable Margin. | |
| As used herein: | ||
| “ABR” means the highest of (i) the rate of interest last quoted by The Wall Street Journal in the U.S. as the prime rate in effect (the “Prime Rate”), (ii) the NYFRB Rate from time to time plus 0.5% and (iii) the Adjusted Term SOFR Rate for a one month interest period plus 1%. If the ABR as determined pursuant to the foregoing would be less than 1.00%, such rate shall be deemed to be 1.00%. | ||
| “ABR Loans” means Loans bearing interest based upon the ABR. | ||
| “Applicable Margin” means (A)(i) with respect to the Initial Dollar Term Facility (a) 1.75%, in the case of ABR Loans and (b) 2.75%, in the case of SOFR Loans (as defined below) and (ii) with respect to the Initial Euro Term Facility 3.00%, in the case of EURIBOR Loans (as defined below); provided that (I) from and after the delivery by the Borrower to the Administrative Agent of the Borrower’s compliance certificate for the first full fiscal quarter following the Closing Date, the Applicable Margin with respect to the Initial Term Facility (as in effect taking into account reductions pursuant to clause (II) below) shall be subject to two 25 basis point reductions if the First Lien Net Leverage Ratio is equal to or less than 3.82:1.00 and equal to or less than 3.32:1.00, respectively, and (II) on and after the date of any qualifying IPO of the Borrower, or any parent entity thereof, the Applicable Margin with respect to the Initial Term Facility shall be 25 basis points lower than the applicable margins set forth above (after taking into account, for the avoidance of doubt, any reductions pursuant to clause (I) above) and (B) with respect to the Revolving Facility, (a) 1.50%, in the case of ABR Loans and (b) 2.50%, in the case of Benchmark Rate Loans; provided that (I) from and after the delivery by the Borrower to the Administrative Agent of the Borrower’s compliance certificate for the first full fiscal quarter following the Closing Date, the Applicable Margin with respect to the Revolving Facility (as in effect taking into account reductions pursuant to clause (II) below) shall be subject to two 25 basis point reductions if the First Lien Net Leverage Ratio is equal to or less than 3.82:1.00 and equal to or less than 3.32:1.00, respectively, and (II) on and after the date of any qualifying IPO of the Borrower, or any parent entity thereof, the Applicable Margin with respect to the Revolving Facility shall be 25 basis points lower than the applicable margins set forth above (after taking into account, for the avoidance of doubt, any reductions pursuant to clause (I) above). | ||
I-A-1
| “Benchmark Rate” means, (a) with respect to Loans denominated in U.S. dollars, Term SOFR (as defined below), (b) with respect to any Loans denominated in Euros, EURIBOR (to be defined in a manner consistent with the Documentation Precedent) and (c) with respect to Loans denominated in any other applicable currency, a benchmark rate to be agreed that is customary under comparable syndicated credit facilities denominated in such currency. | ||
| “Benchmark Rate Loans” means Loans bearing interest at a rate based on the applicable Benchmark Rate. | ||
| “EURIBOR Loans” means Loans bearing interest at a rate based on EURIBOR. | ||
| “SOFR Loans” means Loans bearing interest based upon the Term SOFR Rate. | ||
| “Term SOFR Rate” means, with respect to any Term Benchmark Borrowing denominated in U.S. Dollars for any Interest Period, the Term SOFR Reference Rate at approximately 5:00 a.m., Chicago time, two U.S. Government Securities Business Days prior to the commencement of such Interest Period, as such rate is published by the CME Term SOFR Administrator. If the Term SOFR Rate as determined by the foregoing would be less than 0%, such rate shall be deemed to be 0%. | ||
| “Term SOFR Reference Rate” means, for any day and time, with respect to any Term Benchmark Borrowing denominated in U.S. Dollars and for any tenor comparable to the applicable Interest Period, the rate per annum published by the CME Term SOFR Administrator and identified by the Administrative Agent as the forward-looking term rate based on SOFR. | ||
| “Interest Period” means a period of one, three or six months (or 12 months if available from all relevant Lenders or such other periods acceptable to all relevant Lenders) as selected by the Borrower. | ||
| The Facilities Documentation will include customary benchmark replacement provisions. | ||
| Interest Payment Dates: | In the case of ABR Loans, quarterly in arrears. | |
| In the case of SOFR Loans or EURIBOR Loans, on the last day of each relevant Interest Period and, in the case of any Interest Period longer than three months, on each successive date three months after the first day of such Interest Period. | ||
| Default Rate: | During the continuance of any payment event of default, all overdue amounts under the Facilities shall bear interest at 2.00% per annum above the rate otherwise applicable thereto (or, if there is no applicable rate, 2.00% per annum in excess of the rate otherwise applicable to ABR Loans), with exceptions for Defaulting Lenders. | |
I-A-2
| Rate and Fee Basis: | All per annum rates shall be calculated on the basis of a year of 360 days (or 365/366 days, in the case of ABR Loans, the interest rate payable on which is then based on the Prime Rate) for actual days elapsed. | |
| Letter of Credit Fee: | A per annum fee equal to the Applicable Margin will accrue on the aggregate face amount of outstanding letters of credit under the Revolving Facility, payable in arrears at the end of each quarter and upon the termination of the Revolving Facility, in each case for the actual number of days elapsed over a 360-day year. Such fees shall be distributed to the Lenders (other than Defaulting Lenders) participating in the Revolving Facility pro rata in accordance with the amount of each such Lender’s commitment in respect of the Revolving Facility. In addition, the Borrower shall pay to the Issuing Bank, for its own account, (a) a fronting fee equal to 0.125% of the aggregate face amount of outstanding letters of credit, payable in arrears at the end of each quarter and upon the termination of the Revolving Facility, calculated based upon the actual number of days elapsed over a 360-day year, and (b) customary and reasonable issuance and administration fees. | |
| Commitment Fees: | A rate per annum on the average daily undrawn portion of the commitments in respect of the Revolving Facility, payable to the Lenders (other than Defaulting Lenders) quarterly in arrears after the Closing Date and upon the termination of the commitments, calculated based on the number of days elapsed in a 360-day year, which rate per annum shall equal 0.50%; provided that from and after the delivery by the Borrower to the Administrative Agent of the Borrower’s financial statements for the period ending at least one full fiscal quarter following the Closing Date, the commitment fee rate shall be subject to a 12.5 basis point reduction if the First Lien Net Leverage Ratio is no greater than 3.82:1.00 and a further 12.5 basis point reduction if the First Lien Net Leverage Ratio is no greater than 3.32:1.00. | |
| Swingline Loans shall, for purposes of the commitment fee calculations only, not be deemed to be a utilization of the Revolving Facility. | ||
I-A-3
EXHIBIT C
Project Voyage
Conditions
The availability and funding of the Facilities on the Closing Date shall be subject solely to the satisfaction (or waiver by the Lead Arrangers) of each of the following conditions (subject in all cases to the Limited Conditionality Provision). Capitalized terms used but not defined in this Conditions Exhibit shall have the meanings set forth in the other Exhibits and Annexes (including the Definitions Annex) to the Commitment Letter to which this Conditions Exhibit is attached (the “Commitment Letter”) or in the Commitment Letter. In the case of any such capitalized term that is subject to multiple and differing definitions, the appropriate meaning thereof in this Conditions Exhibit shall be determined by reference to the context in which it is used.
1. The Acquisitions shall have been, or substantially concurrently with the initial funding of the Facilities shall be, consummated in all material respects in accordance with the terms of the Acquisition Agreements (as applicable), after giving effect to any modifications, amendments, consents or waivers thereto, other than those modifications, amendments, consents or waivers by you that are materially adverse to the interests of the Initial Lenders in their capacities as such, unless consented to in writing by the Lead Arrangers (such consent not to be unreasonably withheld, delayed or conditioned; provided that the Lead Arrangers shall be deemed to have consented to such modification, amendment, consent or waiver unless they object thereto in writing within two business days of receipt of written notice of such modification, amendment, consent or waiver); provided that (a) any reduction in the purchase price paid in connection with the Acquisitions set forth in the Acquisition Agreements shall be deemed not to be material and adverse to the interests of the Lenders so long as (except in the case of any such decrease that is less than 15% of the total consideration for the Acquisitions, which shall not be considered material and adverse to the Initial Lenders (in their respective capacities as such)) any such reduction is applied (I) first, to reduce the Equity Contribution on a dollar-for-dollar basis until the Equity Contribution has been reduced to the Minimum Equity Contribution (or, at the option of the Borrower in its sole discretion, to reduce the Initial Term Facility on a greater than pro rata basis and to reduce the Equity Contribution on a less than pro rata basis) and (II) thereafter, after giving effect to the application of the reduction of the purchase price in clause (I) above, such reduction shall be applied to reduce the amount of commitments in respect of the Initial Term Facility, on the one hand, and the Equity Contribution, on the other hand, on a pro rata basis, (b) any change to the definition of “Material Adverse Effect” (as defined in the each Acquisition Agreement) shall be deemed materially adverse and (c) any increase in the purchase price shall be deemed not to be materially adverse so long as such increase is not funded with additional indebtedness of the Borrower or its restricted subsidiaries, other than amounts permitted to be drawn under the Revolving Facility; provided, further, that it is agreed and understood that no purchase price, working capital or similar adjustment provisions set forth in either Acquisition Agreement shall constitute a reduction or increase in purchase price (or otherwise constitute a waiver, amendment or modification to the applicable Acquisition Agreement) for purposes of this paragraph 1.
2. With respect to the Facilities Documentation, (i) the execution and delivery by Holdings, the Borrower and, immediately after giving effect to the Acquisitions, the other Guarantors of the Facilities Documentation for such Facility to which such person is a party, which shall, in each case, be in all material respects in accordance with the terms of the Commitment Letter and the applicable Term Sheet, (ii) subject in all respects to the Limited Conditionality Provision and the Documentation Principles, the execution and delivery by Holdings, the Borrower and, immediately after giving effect to the Acquisitions, the other Guarantors of all documents and instruments required to create and perfect the Administrative Agent’s security interest in the Collateral in respect of such Facility and which shall, if applicable, be in proper form for filing and (iii) delivery to the Administrative Agent of a customary
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borrowing notice and customary legal opinions, customary officer’s closing certificates, organizational documents, customary evidence of authorization and good standing certificates in the jurisdiction of organization (if applicable), in each case with respect to each Loan Party (to the extent applicable) and a solvency certificate substantially in the form of Annex I hereto from the chief financial officer (or other officer with reasonably equivalent duties) of the Borrower (or, at the option of the Borrower, a third party opinion as to the solvency of the Borrower and its subsidiaries on a consolidated basis issued by a nationally recognized firm); provided, that (I) the scope and substance of the foregoing shall be consistent with the Limited Conditionality Provision and (II) none of the foregoing shall be required to include any representation or statement as to (x) the absence (or existence) of any default or event of default as of the Closing Date or (y) the accuracy of the Specified Acquisition Agreement Representations or the absence (or existence) of any Material Adverse Effect (as defined in either Acquisition Agreement).
3. Prior to, or substantially concurrently with, the initial funding of the Facilities, the Target Closing Refinancing shall occur, the Equity Contribution shall have been made (subject to adjustment pursuant to paragraph 1 above) to the extent not otherwise applied to the Transactions.
4. The Specified Acquisition Agreement Representations shall be true and correct in all material respects as of the Closing Date (except in the case of any Specified Acquisition Agreement Representation which expressly relates to a given date or period, such representation shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be) solely to the extent required by the Limited Conditionality Provision and the Specified Representations shall be true and correct in all material respects as of the Closing Date (except in the case of any Specified Representation which expressly relates to a given date or period, such representation and warranty shall be true and correct in all material respects as of the respective date or for the respective period, as the case may be).
5. No Material Adverse Effect (as defined in the Voyage Acquisition Agreement) shall have occurred since the Put Option Date (as defined in the Voyage Acquisition Agreement) and remains ongoing.
6. No Material Adverse Effect (as defined in the JV Acquisition Agreement) shall have occurred since the date hereof and remains ongoing.
7. The Lead Arrangers shall have received (a)(i) the audited consolidated balance sheet of the MetalCo Business as of December 31, 2025 and December 31, 2026, together with the related consolidated statements of income and cash flows for such fiscal year then ended, and (ii) the audited consolidated balance sheet of the Target and its subsidiaries as of (x) December 31, 2025 and (y) December 31, 2026, together with the related audited consolidated statements of operations and cash flows for such fiscal year then ended, (b)(i) the unaudited consolidated balance sheet of the MetalCo Business as of the last day of, and the related unaudited consolidated statements of operations and cash flows for, each quarterly period ending after December 31, 2026 and more than 60 days prior to the Closing Date, (ii) the unaudited consolidated balance sheet of the Target and its subsidiaries as of June 30, 2026, and the related unaudited consolidated statements of operations and cash flows for the 6-month period then ended and (iii) the unaudited consolidated balance sheet of the Target and its subsidiaries as of the last day of, and the related unaudited consolidated statements of operations and cash flows for, each fiscal quarter (other than the fourth fiscal quarter of any fiscal year) ending after June 30, 2026 and at least 60 days prior to the Closing Date, and (c) a customary pro forma consolidated balance sheet of the Borrower as of the last day of the most recently completed fiscal quarter ending at least 60 days (or 135 days in case such fiscal quarter is the end of the Borrower’s fiscal year) prior to the Closing Date, prepared after giving effect to the Transactions as if the Transactions had occurred as of such date, which need not be prepared in compliance with Regulation S-X of the Securities Act of 1933, as amended, or include adjustments for purchase accounting. The Lead Arrangers hereby acknowledge receipt of the financial statements referred to in clauses (a)(ii)(x) and (b)(ii) above.
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8. The Administrative Agent shall have received, at least three business days prior to the Closing Date, all documentation and other information about any Loan Party required by applicable regulatory authorities under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, and if the Borrower qualifies as a “legal entity customer” under the “Beneficial Ownership Regulations” (31 CFR §1010.230), a Beneficial Ownership Certification in relation to the Borrower, as is reasonably requested in writing by such Administrative Agent at least ten (10) business days prior to the Closing Date. “Beneficial Ownership Certification” means a certification regarding individual beneficial ownership solely to the extent required by 31 CFR §1010.230.
9. All fees required to be paid on the Closing Date pursuant to the Fee Letter and reasonable out-of-pocket expenses required to be paid on the Closing Date pursuant to the Commitment Letter, to the extent, in the case of expenses, a reasonably detailed invoice has been delivered to the Borrower at least three business days prior to the Closing Date (except as otherwise reasonably agreed by the Borrower) shall have been paid (or shall be paid from or offset against the proceeds of the initial funding under the Facilities).
10. The Closing Date shall not occur prior to May 15, 2027.
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ANNEX I TO CONDITIONS EXHIBIT C
SOLVENCY CERTIFICATE
[•], 202[•]
Pursuant to the Credit Agreement, dated as of [•], 202[•] (as amended, restated, amended and restated, refinanced, extended, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among [•], a [•] (“Holdings”), Silgan Metal Packaging LLC, a Delaware limited liability company (“Borrower”), [•], as Administrative Agent, the Lenders and the other parties from time to time party thereto (capitalized terms used but not otherwise defined herein shall have the meanings assigned to them in the Credit Agreement), I, [•], certify that I am the duly appointed, qualified and acting chief financial officer (or other officer with reasonably equivalent duties) of the Borrower, and, in such capacity and not in my individual capacity (and without personal liability), certify that based upon facts and circumstances as they exist as of the date hereof (and disclaiming any responsibility for changes in such facts and circumstances after the date hereof):
On the date hereof, after giving effect to the Transactions and the related transactions contemplated by the Facilities Documentation, the Borrower and its restricted subsidiaries, when taken as a whole on a consolidated basis, (a) have property with fair value (on a going concern basis) greater than the total amount of their debts and liabilities, contingent, subordinated or otherwise (it being understood that the amount of contingent liabilities at any time shall be computed as the amount that, in light of all the facts and circumstances existing at such time, can reasonably be expected to become an actual or matured liability), (b) have assets with present fair salable value (on a going concern basis) not less than the amount that will be required to pay their liability on their debts as they become absolute and matured, (c) will be able to pay their debts and liabilities, subordinated, contingent or otherwise, as they become absolute and matured and (d) are not engaged in business or a transaction, and are not about to engage in business or a transaction, for which they have unreasonably small capital.
The undersigned is familiar with the business and financial position of the Borrower and its restricted subsidiaries. In reaching the conclusions set forth in this Solvency Certificate, the undersigned has made such investigations and inquiries as the undersigned has deemed appropriate, having taken into account the nature of the particular business anticipated to be conducted by the Borrower and its restricted subsidiaries after consummation of the transactions contemplated by the Facilities Documentation.
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DEFINITIONS ANNEX
Project Voyage
Certain Definitions
“Cash Interest Coverage Ratio” means the ratio of Consolidated EBITDA to Consolidated Interest Expense for the applicable computation period.
“Consolidated EBITDA” and “Consolidated Net Income” shall be defined in a manner to be mutually agreed and shall be at least as favorable to the Borrower as the Documentation Principles, and in any event shall include, without duplication, add-backs (or adjustments) without any cap for (1) extraordinary, unusual, special, exceptional or non-recurring charges, expenses or losses (as determined by the Borrower in good faith), (2) non-cash charges, expenses or losses, including, without limitation, any non-cash compensation expense, non-cash translation loss and non-cash expense relating to the vesting of warrants; provided that accruals or reserves for potential cash items in any future period may or may not (at the election of the Borrower) be added back in such period and, to the extent added back, the cash payment in respect of such accrual or reserve in a future period shall be subtracted from Consolidated EBITDA in such future period, (3) restructuring costs (including in connection with any tax related restructuring), integration costs, retention, recruiting, relocation and signing or completion bonuses and expenses, stock option and other equity-based compensation expenses and the amount of payments made to option holders in connection with, or as a result of, any distribution being made to shareholders, severance costs, systems establishment costs, costs relating to entry into a new market or to exiting a market, costs associated with office and facility openings, pre-openings, closings, expansions and consolidations (including but not limited to termination costs, moving costs and legal costs), new operation costs, unused warehouse space costs, new contract or corporate development costs, software and other intellectual property development costs, project start-up costs, costs relating to early termination of rights fee arrangements, consulting fees, curtailments or modifications to pension and post-retirement employee benefits and any costs attributable to the undertaking and/or implementation of new initiatives, business optimization activities, cost savings initiatives, cost rationalization programs, operating expense reductions, synergies and/or similar initiatives or programs (including, without limitation, in connection with any inventory optimization program, integration, restructuring or transition, any reconstruction, decommissioning, recommissioning or reconfiguration of fixed assets for alternative uses, any facility opening and/or pre-opening, any implementation of operational and reporting systems and technology initiatives (including any expense relating to the implementation of enhanced accounting or IT functions or new system designs)) and any employee ramp-up charges or any charges related to underutilized personnel (including duplicative personnel), (4) pro forma adjustments, including pro forma “run rate” cost savings, operating expense reductions, operational improvements, revenue enhancements and other synergies (in each case, net of amounts actually realized), related to (A) the Transactions that are (x) reasonably identifiable and projected by the Borrower in good faith to result from actions that have been taken or with respect to which steps have been taken or are expected to be taken (in the good faith determination of the Borrower) within 36 months after the Closing Date (this clause (A)(x), the “Transactions Synergies Addback”) or (y) contemplated by the Acquisition Agreements or identified to the Commitment Parties (including in the Model, any management presentation, any Confidential Information Memorandum or any quality of earnings or similar report or analysis) prior to the Closing Date (including in respect of any action taken on or prior to the Closing Date) or (B) any acquisition or investment (including the commencement of activities constituting a business), disposition (including the termination or discontinuance of activities constituting a business) or other specified transaction, or related to any restructuring initiative, cost savings initiative, operational initiative or other initiative or action (including the contribution to Consolidated
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EBITDA of increased pricing or volume in customer contracts, the renegotiation of contracts, increased production capacity or other arrangements or efficiencies), that are reasonably identifiable and projected by the Borrower in good faith to result from actions that have been taken or with respect to which steps have been taken or are expected to be taken (in the good faith determination of the Borrower) within 36 months after the last day of the applicable period (this clause (B), the “Other Transactions Synergies Addback”), (5) any add backs and other adjustments (i) consistent with Regulation S-X, (ii) that are in any existing credit facility of the Target and/or its subsidiaries or, solely with respect to joint ventures, of such joint venture, (iii) evidenced by, contained in, or of the type contained in, the quality of earnings report with respect to the Transactions prepared by CDS (the “Closing Date Quality of Earnings Report”), (iv) contained in, or of the type contained in, any quality of earnings report made available to the Administrative Agent conducted by financial advisors (which financial advisors are (A) nationally or regionally recognized or (B) reasonably acceptable to the Administrative Agent (it being understood and agreed that any of the “Big Four” accounting firms are acceptable)) and retained by the Borrower, (v) contained in, or of the type contained in, the Model or (vi) contained in, or of the type contained in, the lender presentation provided to the Administrative Agent prior to the launch of general syndication, (6) Transaction Costs and other transaction fees, costs, accruals and expenses (including rationalization, legal, tax, structuring and other costs and expenses) incurred in connection with any acquisition, investment, dividend, restricted payment, disposition, recapitalization, merger, consolidation or amalgamation, issuance, exchange or repayment of debt or equity, initial public offering, becoming a standalone company or a public company, option buyouts, refinancing transactions, amendments or other modifications of debt instruments, early extinguishment of debt, hedging agreements or other derivative instruments (in each case whether or not such transaction was successfully completed), (7) any increase in expenses (A) due to purchase accounting associated with the Transactions or (B) resulting from the revaluation of inventory (including any impact of changes of inventory valuation policy methods including changes in capitalization of variances) or other inventory adjustments, (8) to the extent not otherwise included in consolidated net income, proceeds of business interruption insurance in an amount representing the earnings for the applicable period that such proceeds are intended to replace (whether or not then received so long as the Borrower in good faith expects to receive such proceeds within the next 4 fiscal quarters (it being understood that to the extent such proceeds are not actually received within such fiscal quarters, such proceeds shall be deducted in calculating Consolidated EBITDA for such fiscal quarters)), (9) charges, losses or expenses to the extent indemnified or insured or reimbursed by a third party, (10) letter of credit fees, banker’s acceptance fees and cost of surety bonds, (11) non-controlling or minority interest expense, (12) “earn out” or other contingent obligation expense and adjustments thereof incurred in connection with the Acquisition and/or any other acquisition or investment (including any acquisition or other investment consummated prior to the Closing Date) which is paid or accrued during the applicable period, (13) all charges, losses or expenses attributable to, and payments of, legal settlements, fines, judgments or orders (and costs and expenses incurred in connection therewith), (14) all cash actually received (or any netting arrangements resulting in reduced cash expenditures) during the relevant period and not included in consolidated net income in respect of any non-cash gain deducted in the calculation of Consolidated EBITDA (including any component definition) for any previous period and not added back, (15) accruals and reserves that are established or adjusted within 12 months after the Closing Date as a result of the Transactions (or within 12 months after the closing of any acquisition), (16) fees, expenses and indemnities paid to any Investor or the Sponsors and to directors to the extent permitted to be paid, (17) losses or discounts on sales of receivables and related assets in connection with any receivables, factoring and securitization facilities, (18) charges (including branch operating losses) related to any de novo facility, including any construction, pre-opening and start-up period prior to opening, until such facility has been open and operating for a period of 12 consecutive months, (19) charges in connection with a single or one-time event, (20) the pro forma “run rate” increase to Consolidated EBITDA of new contracts and projects, increased pricing in, or other modifications to, existing contracts and projects, increased volume in existing projects and customer contracts, reduced pricing in supplier arrangements, and other contract and project initiatives that are reasonably identifiable and projected by the Borrower in good faith to result from actions that have been taken or with respect to which steps have been
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taken or are expected to be taken (in the good faith determination of the Borrower) within 36 months after the last day of the applicable period (the “Run Rate Revenue Synergies Addback”) and (21) other customary addbacks and adjustments consistent with the Documentation Principles or as otherwise agreed (with all financial definitions to be consistent with the Documentation Principles).
“Consolidated Interest Expense” means cash interest expense (including that attributable to capital leases), net of cash interest income of the Borrower and its restricted subsidiaries with respect to all outstanding debt of the Borrower and its restricted subsidiaries and net cash costs (less net cash payments) under hedging agreements, but excluding, for the avoidance of doubt, (a) any non-cash interest expense and any capitalized interest, whether paid or accrued, (b) the amortization of original issue discount resulting from the issuance of debt at less than par, (c) amortization of deferred financing costs, debt issuance costs, commissions, fees and expenses, (d) any expenses resulting from discounting of debt in connection with the application of recapitalization accounting or purchase accounting, (e) penalties or interest related to taxes and any other amounts of non-cash interest resulting from the effects of acquisition method accounting or pushdown accounting, (f) the accretion or accrual of, or accrued interest on, discounted liabilities (other than debt) during such period, (g) non-cash interest expense attributable to the movement of the mark-to-market valuation of obligations under hedging agreements or other derivative instruments pursuant to FASB Accounting Standards Codification No. 815-Derivatives and Hedging, (h) any one-time cash costs associated with breakage in respect of hedging agreements for interest rates, (i) any payments with respect to make whole premiums or other breakage costs of any debt, (j) all non-recurring interest expense consisting of liquidated damages for failure to timely comply with registration rights obligations, all as calculated on a consolidated basis in accordance with GAAP, (k) expensing of bridge, arrangement, structuring, commitment or other financing fees, (l) annual agency fees paid to any administrative agents, collateral agents and/or trustees with respect to any Indebtedness and (m) rating agency fees.
“First Lien Net Leverage Ratio” means, as of any date, the ratio of (a) (x) Total Net Debt as of the most recently ended Test Period that is secured by a first priority lien on the Collateral less (y) (i) unrestricted cash and cash equivalents and (ii) cash and cash equivalents restricted in favor of the Administrative Agent or any Lender (whether or not held in a pledged account), of the Borrower and its restricted subsidiaries as of the most recently ended Test Period to (b) Consolidated EBITDA for the most recently ended Test Period.
“Secured Net Leverage Ratio” means, as of any date, the ratio of (a) (x) Total Net Debt as of the most recently ended Test Period that is secured by a lien on the Collateral less (y) (i) unrestricted cash and cash equivalents and (ii) cash and cash equivalents restricted in favor of the Administrative Agent or any Lender (whether or not held in a pledged account), of the Borrower and its restricted subsidiaries as of the most recently ended Test Period to (b) Consolidated EBITDA for the most recently ended Test Period.
“Total Net Leverage Ratio” means, as of any date, the ratio of (a) (x) Total Net Debt as of the most recently ended Test Period less (y) (i) unrestricted cash and cash equivalents and (ii) cash and cash equivalents restricted in favor of the Administrative Agent or any Lender (whether or not held in a pledged account), of the Borrower and its restricted subsidiaries as of the most recently ended Test Period to (b) Consolidated EBITDA for the most recently ended Test Period.
“Total Net Debt” means, as of any date, the outstanding principal amount of all third party debt for borrowed money of the Borrower and its restricted subsidiaries determined on a consolidated basis, in each case as reflected on a balance sheet prepared in accordance with GAAP (subject to exceptions consistent with the Documentation Principles). For the avoidance of doubt, for purposes of calculating any net leverage ratio required to be satisfied as a condition to the incurrence of any debt, the proceeds of any debt being incurred in reliance on such ratio shall not be netted (but the Borrower may give pro forma effect to the repayment of any debt to be repaid with such proceeds); provided, that Total Net Debt shall only include Revolving Loans to the extent outstanding on the December 31 immediately preceding such date (or, in the case of a date ended on December 31 of any fiscal year, the Revolving Loans outstanding on such December 31).
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Exhibit 10.6
CONSULTING AGREEMENT
THIS CONSULTING AGREEMENT (this “Agreement”) is entered into as of October 17, 2026 (the “Effective Date”) by and between Silgan Holdings Inc., a Delaware corporation (hereinafter “Company”), and Anthony J. Allott (“Consultant” and jointly referred to with Company as the “Parties” or singly as a “Party”).
RECITALS
A. WHEREAS, Consultant currently serves as Chairperson of the Board of Directors of Company in a non-executive capacity (“Company Chairperson” and “Company Board”, respectively);
B. WHEREAS, on or about the Effective Date, Company and/or one of its subsidiaries and a fund or an investment vehicle (“AIP Investors”) affiliated with AIP, LLC (“AIP Sponsor” and jointly referred to with AIP Investors as “AIP”) are entering into the Interim Investor Agreement relating to Silgan Metal Packaging LLC (“MetalCo”), a joint venture entity, and the other transactions contemplated thereby (the “Interim Investors Agreement”), including entry at the Closing (as defined below) into an Amended and Restated Limited Liability Agreement of MetalCo (the “LLC Agreement”);
C. WHEREAS, on or about the Effective Date, Company or one of its subsidiaries is entering into a Transaction Agreement with MetalCo and AIP Investors (the “Transaction Agreement”), pursuant to which, upon the Closing (as defined below), Company and/or its applicable subsidiaries will be contributing certain assets and liabilities specified therein to MetalCo and Company and other parties thereto will be effecting certain other transactions contemplated thereby, on the terms and conditions set forth therein;
D. WHEREAS, on or about the Effective Date, AIP Investors are executing a letter agreement in favor of MetalCo and Company in which the AIP Investors agree, subject to the terms and conditions set forth therein, to make or cause to be made a cash equity investment in MetalCo at the Closing;
E. WHEREAS, on or about the Effective Date, MetalCo (or a subsidiary of MetalCo), Trivium Packaging B.V. (“Trivium”), the sellers and the other parties thereto are entering into the Put Option Agreement (the “POA”), pursuant to which, following completion of the information and consultation processes contemplated thereby and exercise of the put option granted thereunder, the parties thereto will execute the Share Purchase Agreement in the agreed form attached thereto (the “SPA”), pursuant to which, upon the closing of the transaction thereunder (the “Closing”), MetalCo will acquire, directly or indirectly, all of the outstanding equity interests in Trivium;
F. WHEREAS, Company desires to engage Consultant pursuant to the terms and conditions set forth in this Agreement in order for Consultant to assist Company, prior to the Closing, in consummating the transactions contemplated by the Interim Investors Agreement, in forming the MetalCo joint venture and assisting with the transactions contemplated by the POA, the SPA, the Transaction Agreement, the LLC Agreement and the other agreements contemplated thereby on behalf of Company and MetalCo and, from and after the Closing, to serve as a Silgan Designated Director (as defined below) and to assist with operational support, oversight, integration and leadership of MetalCo as Chairperson of the Board of Directors of MetalCo in a non-executive capacity (“MetalCo Chairperson” and “MetalCo Board”, respectively) and, from and after the Closing and until a Chief Executive Officer for MetalCo is named, as interim CEO of MetalCo;
G. WHEREAS, Consultant and Company do not believe any inherent conflict of interest exists between Consultant’s roles as Company Chairperson and MetalCo Chairperson;
H. WHEREAS, Consultant is willing and able to render such services and desires to do so on the terms and conditions set forth herein; and
I. WHEREAS, Company desires to be assured that the Confidential Information (as defined below) and goodwill of Company will be preserved for its exclusive benefit.
NOW, THEREFORE, in consideration of the above and of the mutual covenants and agreements herein and other good and valuable consideration, the receipt and sufficiency of which are hereby expressly acknowledged, Consultant and Company agree as follows:
1. Engagement of Services/Project Statement of Work. Company hereby engages Consultant effective on the Effective Date on a non-exclusive basis as provided in Section 5.6, and Consultant agrees to use Consultant’s independent skill and expertise to provide certain services (“Services”) as more specifically described in Attachment 1. Consultant will provide the Services in a professional and workmanlike manner.
2. Fees. In consideration for the services rendered by Consultant prior to the Effective Date as described in clause (a) below and the Services to be rendered by Consultant pursuant to this Agreement, Company shall pay Consultant:
| (a) | an up-front fee in an amount equal to $250,000 per month in respect of the period from November 1, 2025 through the Effective Date (prorated for any partial calendar month in the end of such period) (the “Up Front Fee”), payable within twenty (20) days after the Effective Date, in respect of Consultant’s substantial services rendered during such period in connection with the transactions contemplated by the Transaction Agreement and the POA (including the form of the SPA attached thereto), including (i) Consultant’s assistance with, and oversight of, the due diligence review by AIP of Company and its businesses to be contributed to MetalCo and the due diligence review by Company and AIP of Trivium, (ii) Consultant’s assistance with the negotiation of the Transaction Agreement, the Interim Investors Agreement, the POA, the SPA, the LLC Agreement, the equity commitment letter, the limited guarantees, the debt commitment letter and related financing documents and the other agreements and documents entered into, or to be entered into, in connection with the transactions contemplated thereby and (iii) Consultant’s leadership of, and assistance with, other significant pre-signing workstreams, including transaction structuring, separation planning for the businesses to be contributed by Company to MetalCo, financing matters and engagement with financial and other advisors; |
| (b) | if the Closing and the closing under the Transaction Agreement occur, in consideration of the extraordinary efforts required of Consultant in connection with the execution of the Transaction Agreement, the Interim Investors Agreement, the POA, the SPA, the LLC Agreement and the other agreements and documents entered into on or about the Effective Date or to be entered into following the Effective Date, and the consummation of the Closing and the closing under the Transaction Agreement, an additional fee in an amount equal to $150,000 per month in respect of the period from the Effective Date through the Closing (prorated for any partial calendar month in the event that the Effective Date occurs on any day following the first day of any month or the |
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| Closing occurs on any day preceding the first day of any month) (the “Additional Fee”), payable within a period following the Closing equal in duration to the period from the Effective Date through the Closing, but in no event later than March 14 of the calendar year immediately following the calendar year in which the Closing occurs; and |
| (c) | during the Term of this Agreement a consulting fee in the amount of $250,000.00 per month (prorated for any partial calendar month in the event that the Effective Date occurs on any day following the first day of any month or the last day of the Term occurs on any day preceding the last day of any month) (the “Consulting Fees” and, together with the Up Front Fee and the Additional Fee, the “Fees”), payable within twenty (20) days following the end of the month in which the Services were performed. |
For purposes of clarity, if the Transaction Agreement or the SPA is terminated (including any termination of the POA with the Put Option (as defined therein) unexercised), the Up Front Fee and the Consulting Fees in respect of months prior to such termination are non-refundable. Other than the Fees and the reimbursement of certain expenses as set forth in Section 5.5 hereof, Company will not be responsible for the payment of any other amounts, expenses, costs, or reimbursements of any kind to Consultant for Consultant’s Services hereunder unless separately agreed to in writing by the Parties on a case-by-case basis. All amounts paid by Company to Consultant hereunder will be deemed to already include any applicable taxes, duties, levies, or surcharges of any kind, the reporting and payment of which will be the sole responsibility of Consultant. For the avoidance of doubt, nothing herein shall limit or affect the fees or expenses otherwise payable by Company to Consultant in his capacity as a director of Company and the Company Chairperson. The Parties acknowledge that they will have further discussions in good faith, in consultation with the other party to the Interim Investors Agreement, and as agreed would amend this Agreement to change the amount of the Consulting Fees and provide for a bonus payable to Consultant in accordance with a bonus plan to be approved by Company. It is also understood that MetalCo may grant Consultant equity incentive compensation in the form of profits interests in MetalCo (or equivalent securities), subject in each case to approval by Company and MetalCo and to the terms of a definitive award agreement(s) between MetalCo and Consultant and any applicable equity incentive plan documents of MetalCo, all subject to the prior approval of Company and MetalCo. Other than as provided in this Section 2, reimbursement of expenses as set forth in Section 5.5 and indemnification and advancement of expenses as set forth in Section 14, as the case may be, no amounts shall be payable to Consultant by MetalCo or any of its direct or indirect subsidiaries in respect of Consultant’s service as MetalCo Chairperson or interim CEO of MetalCo.
3. Ownership. Consultant agrees that all files, client lists, letters, memoranda, reports, records, data program listing, or other written, photographic, or other tangible material, including but not limited to materials containing Confidential Information (as defined below) or trade secrets of Company and MetalCo, whether created by Consultant or others, which shall come into Consultant’s custody or possession, shall be or are the exclusive property of Company or MetalCo, as applicable, to be used by Consultant only in the performance of Consultant’s duties for Company and MetalCo. Unless otherwise agreed by Company in writing, all such records or copies thereof and all tangible property of Company and MetalCo in Consultant’s custody or possession shall be destroyed (and Consultant shall certify destruction in writing to Company and/or MetalCo, as applicable) or returned to Company and/or MetalCo, as applicable, upon the earlier of: (a) request by Company (with respect to Company materials and property) or MetalCo (with respect to MetalCo materials and property); or (b) termination of this
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Agreement and his role as a director of MetalCo (with respect to MetalCo materials and property). After such delivery, Consultant shall not retain any such records or copies thereof or any such tangible property.
4. Representations and Warranties. Consultant represents and warrants that: (a) Consultant has the full right and authority to enter into this Agreement and perform Consultant’s obligations hereunder; and (b) Consultant’s performance of the Services under this Agreement will not violate any agreement, contract or commitment to which Consultant is a party or is otherwise bound, and, to Consultant’s knowledge, will not violate the rights of any third party. Company represents and warrants that it is not aware of any obligation of Consultant to Company that would impair Consultant’s right and authority to enter into this Agreement and perform the Services.
5. Independent Contractor Relationship.
5.1 Status. Consultant is the Company Chairperson in a non-executive capacity. Consultant is being engaged hereunder as an independent contractor and not an employee of Company and shall become a Silgan Designated Director, the MetalCo Chairperson and interim CEO of MetalCo and shall not be an employee of Company or MetalCo. The Parties acknowledge that Consultant may simultaneously serve as the Company Chairperson, the MetalCo Chairperson and interim CEO of MetalCo. Nothing in this Agreement is intended to, or should be construed to, create a partnership, agency, joint venture or employment relationship. Nothing in this Agreement shall be construed as a guarantee of Consultant’s continued service as a director of Company, the Company Chairperson, Silgan Designated Director, the MetalCo Chairperson or interim CEO of MetalCo.
5.2 MetalCo Board Voting. Prior to each meeting of the MetalCo Board and prior to executing any written consent of the members of the MetalCo Board, Consultant shall confer with the Chief Executive Officer and the General Counsel of Company and the other members of the MetalCo Board designated by Company or its applicable subsidiary (such members of the MetalCo Board, together with Consultant, the “Silgan Designated Directors”) regarding the matters to be formally voted on at a meeting by resolution or consented on, and shall disclose Consultant’s intended vote on each such matter to Company and the other Silgan Designated Directors, and any subsequent change therein, prior to casting such vote. If any matter to be formally voted on by the MetalCo Board by resolution is first presented to the MetalCo Board at a meeting without time reasonably sufficient for such conferral, Consultant shall instead notify other Silgan Designated Directors of Consultant’s intended vote as promptly as practicable and in any event prior to the vote. Consultant shall not cast any vote on a matter to be formally voted on by the MetalCo Board by resolution, or execute any written consent, before the other Silgan Designated Directors have communicated their intended votes, except to the extent Consultant determines acting reasonably and in good faith that Consultant’s fiduciary duties as the MetalCo Chairperson require otherwise. On each matter presented to the MetalCo Board, Consultant shall vote with the majority of the other Silgan Designated Directors (including Consultant), except to the extent Consultant determines acting reasonably and in good faith that Consultant’s fiduciary duties as the MetalCo Chairperson require otherwise. Consultant acknowledges and agrees that he is a designee of Company or its applicable subsidiary on the MetalCo Board and Consultant shall follow all directives of the Company Board or any committee thereof with respect to MetalCo, except to the extent Consultant determines acting reasonably and in good faith that Consultant’s fiduciary duties as the MetalCo Chairperson require otherwise. Before making a determination that Consultant’s fiduciary duties require a vote inconsistent with the directives of the Company Board or the votes of a majority of the Silgan
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Designated Directors, Consultant shall consult with the General Counsel of Company and, at Company’s cost and expense, outside counsel to Company and, if Consultant so determines, at Company’s cost and expense, other legal counsel reasonably acceptable to Company. If Consultant is designated to serve on any committee of the MetalCo Board or any board, committee or similar governing body of any direct or indirect subsidiary of MetalCo, the provisions of this Section 5.2 shall apply, mutatis mutandis, to any vote, consent or other action by Consultant in Consultant’s capacity as a member of any such committee, board or governing body; provided that this Section 5.2 shall not apply to any such vote, consent or action to the extent it implements, or is taken to effectuate, a matter previously approved by the MetalCo Board in accordance with this Section 5.2. Notwithstanding anything to the contrary, for any written consent or formal vote at a meeting, if Consultant votes with the majority of the other Silgan Designated Directors, Company shall not have any grounds to terminate Consultant with respect to such written consent or formal vote or the matters covered thereby. For the avoidance of doubt, nothing in this Section 5.2 shall restrict Consultant from expressing Consultant’s own views and opinions regarding the matters to be formally voted on by the MetalCo Board openly with the full MetalCo Board, including the members of the MetalCo Board that are not Silgan Designated Directors; provided, that Consultant ultimately votes with the majority of the other Silgan Designated Directors or otherwise in compliance with this Section 5.2.
5.3 Tax Treatment. Company will treat Consultant as an independent contractor for purposes of all tax laws (national, provincial, local, state and federal, as applicable) and file forms consistent with that status. Consultant, as an independent contractor, is not entitled to unemployment benefits in the event this Agreement terminates, or to workers’ compensation benefits in the event that Consultant is injured in any manner while performing obligations under this Agreement (or such comparable benefits in the applicable jurisdictions). Consultant will be solely responsible to pay any and all applicable local, state, and/or federal income, social security and unemployment taxes (or such comparable taxes in the applicable jurisdictions) for Consultant. Company will not withhold any taxes or prepare W-2 Forms (or such comparable document in the applicable jurisdictions) for Consultant but will provide Consultant with a Form 1099 (or such comparable document in other applicable jurisdictions), if required by law. Consultant is solely responsible for and will timely file all tax returns and payments required to be filed with, or made to, any federal, state or local tax authority with respect to the performance of Services and receipt of Fees under this Agreement. Consultant is solely responsible for, and must maintain adequate records of, expenses incurred in the course of performing Services under this Agreement, except as provided herein. No part of Consultant’s compensation will be subject to withholding by Company for the payment of any social security, federal, state or any other applicable employee payroll taxes. Company will regularly report amounts paid to Consultant with the appropriate taxing authorities as required by applicable law and Consultant will be responsible for reporting, filing, and making full payment of any taxes arising under this Agreement to the complete exoneration of Company.
5.4 No Employee Benefits. Consultant will not receive any employee benefits of any kind from Company or MetalCo in connection with this Agreement, other than as expressly permitted in Section 2 of this Agreement. Consultant is excluded from participating in any fringe benefit plans or programs as a result of the performance of Services under this Agreement, without regard to Consultant’s independent contractor status. In addition, during the Term (as defined below) of this Agreement Consultant waives any and all rights, if any, to participation in any of Company’s or MetalCo’s fringe benefit plans or programs including, but not limited to, vacations, sick leave,
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bonuses, severance, gratuities, health, sickness, accident or dental coverage, life insurance, disability benefits, accidental death and dismemberment coverage, unemployment insurance coverage, workers’ compensation coverage, or other social insurance contributions, and pension or 401(k) (or comparable plan in other applicable jurisdictions) benefit(s) provided by Company or MetalCo to its employees; provided, however, that nothing in this Agreement alters Consultant’s rights to any vested benefits pursuant to Consultant’s prior employment by the Company. Company and Consultant acknowledge that the Fees payable hereunder were determined with the understanding that Consultant will be responsible for paying any and all costs associated with obtaining health coverage and other benefits.
5.5 Expenses. Consultant shall be reimbursed by Company for his reasonable and documented out-of-pocket travel and accommodation expenses for travel prior to the Closing to Company, Trivium or MetalCo business locations, or any other locations reasonably necessary, in order to provide the Services hereunder, at a class and level of travel and accommodation consistent with those used by senior executives of Company. It is understood that MetalCo will reimburse Consultant for actual, reasonable and documented out-of-pocket costs and expenses incurred by Consultant following the Closing in connection with Consultant’s service as MetalCo Chairperson and interim CEO of MetalCo, subject to the terms of the LLC Agreement and any other applicable documents. Consultant shall not be entitled to reimbursement under this Agreement of any other expenses incurred in connection with the performance of Services hereunder.
6. Confidential Information and Publicity.
6.1 General. Consultant will hold Company’s and MetalCo’s Confidential Information (as defined below) in strict confidence and not disclose such Confidential Information to any third parties, it being understood that (i) all members of the MetalCo Board shall not be deemed to be third parties for purposes of sharing MetalCo’s Confidential Information and (ii) Consultant may disclose Company’s Confidential Information to advisors of Company or to Consultant’s own legal and tax advisors or MetalCo’s Confidential Information to advisors of Company or MetalCo or to Consultant’s own legal and tax advisors, in each case in this clause (ii), as is necessary or advisable. Consultant will not use any Confidential Information for any purpose other than performance of Consultant’s Services hereunder and performance of his role as the Company Chairperson. “Confidential Information” as used in this Agreement will mean all information disclosed by Company or MetalCo to Consultant, or otherwise, regarding Company’s or MetalCo’s business obtained by Consultant pursuant to Services provided under this Agreement that is not generally known in the trade or industry and will include, without limitation, information regarding the Company’s and MetalCo’s 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, formulations, practices, manufacturing or mixing methods, strategic plans, nonpublic personnel-related information, nonpublic personal and private information of employees, nonpublic training materials, internal financial information, research and development plans and activities, and the like. Confidential Information also includes proprietary or confidential information of any third party who may disclose such information to Company, MetalCo, or Consultant in the course of Company’s or MetalCo’s business. Consultant acknowledges that Company and/or its applicable subsidiary may be subject to separate confidentiality obligations owed to MetalCo (including pursuant to the Interim Investors
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Agreement, the LLC Agreement or the related Restrictive Covenant Agreement referenced therein) and that Consultant may receive Confidential Information of MetalCo that is subject to such obligations. Consultant agrees to comply with any such obligation of which Consultant is aware, to the extent it applies to Consultant, and in the event of any conflict between such obligation of Consultant and the other provisions of this Section 6, the provision that is more protective of the Confidential Information of MetalCo shall apply.
6.2 Exceptions. Consultant’s obligations set forth in this Section will not apply with respect to any portion of the Confidential Information that Consultant can demonstrate is in the public domain through no fault of Consultant. In addition, Consultant may disclose Confidential Information in response to a valid order by a court or other governmental body, or as otherwise required by law.
6.3 Exclusive Property. All Confidential Information furnished to Consultant by Company or MetalCo is the sole and exclusive property of Company or MetalCo respectively and/or its or their suppliers or customers. Upon request, Consultant will promptly deliver to Company or MetalCo (as applicable) the original and any copies of such Confidential Information.
6.4 No Public Use. Consultant will not issue any advertising, public announcements or releases, nor make any other public references to Company, MetalCo, and/or this Agreement without the prior written consent of Company; provided, that the foregoing shall not apply to statements made in the ordinary course of Consultant’s roles as a director of Company, Company Chairperson, director of MetalCo, MetalCo Chairperson or interim CEO of MetalCo or disclosures required by applicable law, regulation or stock exchange rules.
6.5 Defend Trade Secrets Act. Consultant is hereby provided notice that under the 2016 Defend Trade Secrets Act (“DTSA”): (a) no individual will be held criminally or civilly liable under federal or state trade secret law for the disclosure of a trade secret (as defined under the DTSA) that: (i) is made in confidence to a federal, state or local government official, either directly or indirectly, or to any attorney; and made solely for the purpose of reporting or investigating a suspected violation of law; or (ii) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal so that it is not made public; and (b) an individual who pursues a lawsuit for retaliation by Company for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal, and does not disclose the trade secret, except as permitted by court order.
6.6 Permitted Conduct. Nothing in this Agreement restricts the right of Consultant to report any good faith allegation of unlawful practices to or cooperate with any appropriate federal, state, or local government agency or government official; make other disclosures that are protected under the whistleblower provisions of applicable law or regulation and collect any statutory award in connection therewith; make truthful statements or disclosures required by law, regulation, or legal process; or request or receive confidential legal advice.
7. Term and Termination.
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7.1 Term. The term (“Term”) of this Agreement shall commence on the Effective Date and shall continue thereafter until the Agreement is terminated pursuant to this Section 7.
7.2 Termination. At any time, either Party may terminate this Agreement upon thirty (30) days’ prior written notice to the other Party; provided, that, notwithstanding the foregoing, from the Effective Date through the end of the 36-month period following the Closing Date, the Company may only terminate this Agreement in compliance with Sections 4.1(f), 4.3(b)(vi) and 4.3(g) of the LLC Agreement (and prior to the Closing, Section 2.4 of the Interim Investors Agreement). Prior to the Closing, in the event of termination of the Transaction Agreement or the SPA (including any termination of the POA in accordance with its terms with the Put Option (as defined therein) unexercised), in each case in accordance with its respective terms, this Agreement shall then automatically terminate without any further action by either Party. Following the Closing, this Agreement shall automatically terminate at such time as Consultant ceases to occupy the position of the MetalCo Chairperson for any reason; provided, that any removal of Consultant from the position of the MetalCo Chairperson shall terminate this Agreement only if such removal is effected in compliance with the LLC Agreement (including, to the extent required thereunder, with the prior written consent of the AIP Investors). This Agreement shall automatically terminate upon Consultant’s death, and Company may terminate this Agreement immediately upon written notice in the event of Consultant’s permanent disability (as determined in the reasonable discretion of the Company) or for Cause (as defined in the LLC Agreement and subject to Section 7.5). Notwithstanding the foregoing and for the avoidance of doubt, Company may remove Consultant from Consultant’s position as a director of Company or Company Chairperson at any time but such removal will not terminate this Agreement unless such removal is made in a manner which would otherwise validly terminate this Agreement in accordance with this Section 7.2.
7.3 Effect of Termination. Upon any termination of this Agreement, Consultant: (i) will immediately discontinue all use of Confidential Information except in connection with his role as the Company Chairperson; (ii) will delete any Confidential Information from Consultant’s computer storage or any other media, including, but not limited to, online and off-line libraries, except where retained access to the Confidential Information is necessary in connection with his role as the Company Chairperson; (iii) upon Company’s request, will return to Company or MetalCo (as applicable), or, at Consultant’s option, destroy and certify destruction in writing, all copies of such electing party’s Confidential Information then in Consultant’s possession (except those in his possession in his capacity as the Company Chairperson); and (iv) upon Company’s request, will return to Company or MetalCo (as applicable) any other Company or MetalCo property in Consultant’s possession or control (except those in his possession or control in his capacity as the Company Chairperson). In the event either Party terminates this Agreement or this Agreement otherwise terminates in accordance with Section 7.2, Consultant will not receive any additional Consulting Fees or other payments after the effective date of termination (provided that Consultant will be paid prorated Consulting Fees for any partial month during the Term and, if the Closing and the closing under the Transaction Agreement have occurred prior to such termination, any unpaid Additional Fee).
7.4 Survival. The rights and obligations contained in Sections 2 through 17 will survive any termination or expiration of this Agreement; provided that Section 5.2 shall terminate upon any termination or expiration of this Agreement, except that (a) Section 5.2 shall survive with respect to any breach thereof occurring prior to such termination or expiration and (b) Section 5.2 shall
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survive any termination of this Agreement by Consultant pursuant to the first sentence of Section 7.2 unless, prior to or concurrently with such termination, Consultant has resigned as MetalCo Chairperson and as a member of the MetalCo Board.
7.5 Notice and Cure; Reliance. Except with respect to any breach of Section 5.2, no act or omission by Consultant will constitute a breach of this Agreement (including for purposes of determining Cause) unless Company has given Consultant written notice specifying the breach in reasonable detail and, if such breach is curable, Consultant fails to cure such breach within thirty (30) days after receipt of such notice. No act or omission taken at the direction of the Company Board or with the prior written approval by Company’s General Counsel of such act or omission will constitute a breach of this Agreement.
8. Cooperation. For up to one (1) year following the expiration of the Term, Consultant agrees to be available at mutually agreeable times to respond to limited transition questions with respect to his role at MetalCo that may arise from time to time.
9. Assignment. Consultant may not subcontract or otherwise delegate his obligations under this Agreement, except for ordinary-course delegation to officers and employees of MetalCo and its subsidiaries in Consultant’s capacity as interim CEO of MetalCo. Company may assign this Agreement at any time to any Company affiliate upon providing written notice to Consultant.
10. Notices. Any notice required or permitted by this Agreement will be in writing and will be sufficiently given if made by: (a) email; (b) hand delivery; (c) reputable overnight courier; or (d) registered or certified mail (postage prepaid and return receipt requested). If a notice is made by email, it will be deemed received by the receiving Party once it is read by the receiving Party or within three business days of delivery, whichever occurs first. If a notice is made by hand delivery, reputable express courier service, or by registered or certified mail, it will be deemed received by the receiving Party once it is signed for by the receiving Party or within three business days of delivery, whichever occurs first. Notice will be sent to Consultant’s address set forth in Attachment 1.
11. Governing Law and Forum. This Agreement will be governed in all respects by the laws of Connecticut, without regard to conflict of laws principles. Any suit involving this Agreement will be brought in a court of competent jurisdiction in Connecticut. The Parties agree that venue will be proper in such courts, and that such courts will have personal jurisdiction over them.
12. Severability. Should any provisions of this Agreement be held by a court of law to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions of this Agreement will not be affected or impaired thereby.
13. Waiver. The waiver by either Party of a breach of any provision of this Agreement will not operate or be construed as a waiver of any other or subsequent breach by the other Party.
14. Indemnification. For the avoidance of doubt, the Services to be provided by Consultant to MetalCo pursuant to this Agreement are at the request of Company. Nothing herein shall limit or affect any rights to indemnification, or any coverage under directors’ and officers’ liability insurance policies maintained by Company, that Consultant may otherwise be entitled to by virtue of his being a director under Company’s bylaws or certificate of incorporation or under that certain Indemnification Agreement entered into between Consultant and Company dated November 30, 2012. Consultant shall execute such
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documents and take such other actions as Company may reasonably request (at Company’s expense) to secure or perfect any rights of reimbursement or subrogation Company may have arising from any payment by Company in respect of amounts for which MetalCo is or may be responsible.
15. Entire Agreement. This Agreement constitutes the entire understanding of the Parties relating to the subject matter and supersedes any previous oral or written communications, representations, understanding, or agreement between the Parties concerning such subject matter. This Agreement, and any provision of this Agreement, may not be changed, modified, supplemented, waived or amended except by express written agreement signed by Consultant and Company. Any grant, payment or reimbursement contemplated by MetalCo is an obligation solely of MetalCo (if and to the extent made or approved), and neither Company nor any of its direct or indirect subsidiaries (other than MetalCo or its direct or indirect subsidiaries, which shall have no obligations under this Agreement and whose obligations, if any, arise solely if and when made or approved by MetalCo or such subsidiaries, as applicable) shall have any obligation or liability with respect thereto, whether as guarantor, by way of contribution or otherwise, and nothing in this Agreement obligates Company or any of its direct or indirect subsidiaries to fund, procure or vote in favor of any such grant, payment or reimbursement.
16. Counterparts. This Agreement may be executed in two or more counterparts, all of which, taken together, will be regarded as one and the same instrument.
17. Electronic Signature and Transmission. This Agreement may be executed by electronic signature delivered by hand, facsimile or electronic mail attachment in Portable Document Format (PDF) file format or comparable electronic file storage format. Each Party agrees that the digital signature delivery of this Agreement by hand, facsimile, or electronic transmission will have the same force and effect as delivery of original signatures and that each Party may use such electronic transmission of signatures as evidence of the execution and delivery of this Agreement by all Parties to the same extent that an original signature could be used.
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IN WITNESS WHEREOF, the Parties have executed this Agreement by their signatures below as of the Effective Date.
| COMPANY | CONSULTANT | |||
| /s/ Adam J. Greenlee |
/s/ Anthony J. Allott | |||
| By: Adam J. Greenlee | Anthony J. Allott | |||
| Its: President and CEO | ||||
| ATTACHMENT |
||
| Attachment 1 |
Statement of Work | |
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ATTACHMENT 1
STATEMENT OF WORK
| 1. | Services to be Performed. Consultant will provide such services to Company and to MetalCo as shall be reasonably requested to include: |
| • | Pre-Closing Services to Company |
| • | Completion of Due Diligence |
| • | Oversee the Company team and collaborate with the AIP team in evaluating due diligence and other materials related to Trivium. |
| • | Preparation for Closing |
| • | Assist in negotiations with Trivium regarding any transaction documents. |
| • | Lead the team of Company executives in fulfilling closing conditions and preparing closing deliverables with respect to Company’s applicable business units being contributed to MetalCo and overseeing the separation, carve-out and standalone-readiness workstreams necessary for such business units to be contributed at Closing. |
| • | Oversee the Company team and collaborate with the AIP team in preparing for the Closing and integration of Trivium. |
| • | Assist Company in monitoring the conduct and performance of Trivium during the period from signing of the Put Option Agreement through Closing. |
| • | JV Workstreams |
| • | Assist in negotiations with AIP regarding any transaction documents. |
| • | Coordinate the overall efforts of Company, AIP and their respective advisors toward consummation of the joint venture transaction, including the contribution of Company’s business units to MetalCo, MetalCo’s acquisition of Trivium, MetalCo’s special distribution of cash to Company and any related financing and structuring steps. |
| • | Serve as Company’s primary escalation point for issues arising between signing and Closing. |
| • | Regulatory Clearances |
| • | Serve as Company’s primary point of contact in coordinating completion by Trivium of the employee information and consultation processes required under the Put Option Agreement for the execution of the SPA. |
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| • | Serve as Company’s primary point of contact in coordinating applicable antitrust approvals or clearances for the Closing. |
| • | Post-Closing Services to MetalCo on Company’s Behalf |
| • | MetalCo Board |
| • | Serve as a Silgan Designated Director and MetalCo Chairperson. |
| • | Actively oversee the operations of MetalCo, as agreed between the Parties, as interim CEO of MetalCo until a Chief Executive Officer for MetalCo is named. |
| • | During a minimum 18-month period following the Closing Date, Consultant will devote 100% of his professional time to MetalCo; provided, that, Consultant may devote reasonable time as required to his position as a director of Company and/or Company Chairperson. |
| • | Operational Support and Oversight |
| • | Support and oversee activities of the combined Silgan/Trivium businesses owned by MetalCo. |
| • | Integration and Leadership |
| • | Work with leadership teams within the newly formed MetalCo to ensure a successful integration and transition. |
| • | Assist in developing the leadership team for the long-term operation of a projected $7+ billion independent entity. |
In the performance of the Services, Consultant shall travel to such facilities of Company and MetalCo and to customers and suppliers of Company and MetalCo (including potential customers and suppliers) as reasonably requested by Company and MetalCo or as otherwise reasonably necessary to perform the Services hereunder. Consultant will perform the Services primarily at Norwalk, Connecticut and other locations of MetalCo as required.
| 2. | Consultant’s Address. Anthony J. Allott, [Redacted]. |
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