EXHIBIT 4.5
OFFICER
CONTINGENT STOCK PURCHASE AGREEMENT
AGREEMENT dated as of between SEALED AIR
CORPORATION, a Delaware corporation (the "Corporation"), and
(the "Employee").
The Employee is now an officer of the Corporation and has been selected
by the Compensation Committee (the "Committee") of the Board of Directors of
the Corporation as one who is in a position to make a significant contribution
to the growth and success of the Corporation. Pursuant to the Contingent
Stock Plan of Sealed Air Corporation (the "Plan"), the Corporation desires to
provide an incentive to the Employee which will permit him to share directly
in the growth of the Corporation and to further identify his interests with
those of the stockholders of the Corporation.
NOW, THEREFORE, the Corporation and the Employee mutually agree as
follows:
Section 1. Purchase and Sale of Stock
Subject to the terms and conditions hereinafter set forth, the
Corporation hereby sells to the Employee and the Employee purchases from the
Corporation * * shares of the $0.10 par value Common Stock of the
Corporation ("Common Stock") for a purchase price of $1.00 per share (subject
to adjustment pursuant to Section 7 of the Plan) (the "Issue Price"), receipt
of which the Corporation hereby acknowledges. The Corporation will deliver to
the Employee a certificate representing such shares of Common Stock within a
reasonable time after execution of this Agreement.
Section 2. Representation
The Corporation represents that all shares of Common Stock issued
pursuant to this Agreement will be duly authorized, validly issued, fully-paid
and nonassessable.
Section 3. Repurchase Option and Period of Restriction
During the period beginning with the date of this Agreement and ending
on the third anniversary of such date, and except as provided below, the
Common Stock issued pursuant to this Agreement shall be subject to an option
(the "Repurchase Option") in favor of the Corporation to reacquire such Common
Stock at a price per share equal to the Issue Price. Neither the shares of
Common Stock issued pursuant to this Agreement nor any interest therein shall
be sold, transferred or encumbered until the Repurchase Option may no longer
become exercisable. The Repurchase Option shall become exercisable only upon
the termination of employment of the Employee with the Corporation or any of
its subsidiaries other than as a result of the Employee's death or permanent
and total disability.
Section 4. Exercise of the Repurchase Option
The Repurchase Option shall be exercised in whole or in part by the
Corporation, if at all, by its sending written notice of such exercise to the
Employee at the address specified in or pursuant to Section 10 within 90 days
after the Employee's termination of employment. Such notice, which shall be
sent by registered mail, postage prepaid, shall also set forth the address to
which and the date on which the certificates representing the Common Stock in
respect of which the Repurchase Option is being exercised, duly endorsed for
transfer, should be sent. The date specified shall not be less than ten days
nor more than thirty days from the date of such notice. The Employee or his
successor in interest with respect to such shares shall have no further rights
as a stockholder from and after the date so specified in such notice and
agrees that the Common Stock represented by such certificate shall be deemed
canceled and returned to the treasury of the Corporation and that the Employee
will have no further incidents of ownership, including the right to receive
dividends or other distributions. If the certificates are duly delivered in
accordance with the written notice, the Corporation shall promptly send to the
Employee its check in the amount of the Issue Price for such shares. The
Corporation shall affix to the certificates any required stock transfer
stamps. If the certificates are not so delivered, the Corporation shall
deposit the required amount of payment in an escrow account in the name of the
Employee to be held therein until such certificates are delivered to the
Corporation and the Corporation shall immediately advise its transfer agent of
such action. In addition, if the certificates are not so delivered, the
Employee shall repay to the Corporation any dividends or other distributions
which may have become payable of record on or after the date on which the
Employee was required to deliver the certificates to the Corporation and
agrees to reimburse the Corporation all of its expenses (including attorneys'
fees) incurred in connection with any steps the Corporation may take to cancel
the certificates or to obtain the repayment of such dividends or other
distributions, or both.
Section 5. Legend on Stock Certificates
Every certificate of Common Stock issued pursuant to this Agreement
shall, so long as the restrictions described in Section 3 remain in effect,
bear a legend in substantially the following form:
This certificate and the shares represented hereby are held
subject to the terms of the Contingent Stock Plan of Sealed Air
Corporation which Plan provides that the shares issued pursuant thereto
are subject to an option in favor of Sealed Air Corporation to reacquire
such shares at a price which may be significantly lower than their fair
market value and that neither such shares nor any interest therein may be
sold, transferred or encumbered until the expiration of such option. If
such option is exercised, the holder of the shares represented by this
certificate will have no further rights with respect to such shares and
this certificate will be deemed void. A copy of the Contingent Stock
Plan is available for inspection at the executive offices of Sealed Air
Corporation.
and shall have in effect a stop-transfer order with respect thereto. Upon
expiration of the Repurchase Option, an Employee may surrender to the
Corporation the certificate or certificates representing such shares in
exchange for a new certificate or certificates, free of the above legend.
Section 6. Government and Other Regulations
and Restrictions
The obligations of the Corporation to issue Common Stock upon execution
of this Agreement shall be subject to all applicable laws, rules and
regulations and to such approvals by governmental agencies as may be required.
The Employee consents to the imprinting of the following legend on any
certificate or certificates evidencing such shares and to the entry of a
stop-transfer order with respect thereto in the records of the Corporation's
transfer agent:
The shares represented by this certificate may be sold,
transferred or otherwise disposed of only if registered under the
Securities Act of 1933, as amended, or if in the opinion of counsel to
Sealed Air Corporation, an exemption from registration is available.
Section 7. Registration of Shares
The Corporation shall be under no obligation to register any shares of
Common Stock under the Securities Act of 1933.
Section 8. No Rights in Common Stock
The Employee shall not have any interest in or be entitled to any
voting rights or dividends or other rights or privileges of stockholders of
the Corporation with respect to any shares of Common Stock issued pursuant
to this Agreement until the shares of Common Stock are actually issued to
the Employee and then only from the date the Employee becomes the record
owner thereof.
Section 9. Injunctive Relief
In addition to any other rights or remedies available to the Corporation
as a result of the breach of the Employee's obligations hereunder, the
Corporation shall be entitled to enforcement of such obligations by an
injunction or a decree of specific performance from a court with appropriate
jurisdiction and, in the event that the Corporation is successful in any suit
or proceeding brought or instituted by the Corporation to enforce any of the
provisions of this Agreement or on account of any damages sustained by the
Corporation by reason of the violation by the Employee of any of the terms and
conditions of this Agreement to be performed by the Employee, the Employee
agrees to pay to the Corporation all costs and expenses including attorneys'
fees reasonably incurred by the Corporation.
Section 10. Notices
Any notice which either party hereto may be required or permitted to
give to the other shall be in writing and, except as otherwise required
herein, may be delivered personally or by mail to the Corporation at Park 00
Xxxx, Xxxxxx Xxxxx, Xxx Xxxxxx 00000, attention of the Secretary of the
Corporation, or to the Employee at the address set forth below or at such
other address as either party may designate by notice to the other.
Section 11. Subsidiaries
The subsidiaries of the Corporation referred to in this Agreement are
those corporations 50 percent or more of whose outstanding voting stock is
owned or controlled, directly or indirectly, by the Corporation and those
partnerships and joint ventures in which the Corporation owns directly or
indirectly a 50 percent or more interest in the capital account or
earnings.
Section 12. Adjustments
In the event of changes in the Common Stock of the Corporation after the
date of this Agreement by reason of any stock dividend, split-up, combination
of shares, reclassification, recapitalization, merger, consolidation,
reorganization, or liquidation: (a) the Repurchase Option and the
restrictions described in Section 3 and the requirement of a legend on stock
certificates as described in Sections 5 and 6 shall apply to any securities
issued in connection with any such change in respect of Common Stock issued
pursuant to this Agreement, and (b) appropriate adjustments shall be made by
the Committee as to (i) the number of shares to be delivered and the price per
share to be paid by the Corporation upon the exercise, in whole or in part, of
the Repurchase Option, (ii) the number of shares to be delivered and the Issue
Price where such change occurs after the date of this Agreement but before the
date the stock covered by this Agreement is delivered, and (iii) the number
and class of shares available under the Plan in the aggregate.
Section 13. Successors
The provisions of this Agreement shall be binding upon and inure to the
benefit of all successors of the Employee, including, without limitation, his
estate and the executors, administrators or trustees thereof, his heirs and
legatees and any receiver, trustee in bankruptcy or representative of his
creditors.
Section 14. Corporation's Right to Terminate Employment
Nothing contained in this Agreement shall confer upon the Employee a
right to continue in the employ of the Corporation or any of its subsidiaries
or interfere in any way with the right of the Corporation or any of its
subsidiaries to terminate the employment of the Employee at any time, with or
without cause.
Section 15. Payment of Withholding Tax
In the event that, in the opinion of counsel for the Corporation, any
Federal, state or local taxes or any other charges may now or hereafter be
required by law to be withheld by the Corporation or one of its subsidiaries
from the wages or salary of the Employee by reason of this Agreement or
otherwise with respect to the Common Stock governed hereby, the Employee
agrees to pay to the Corporation or such subsidiary, as the case may be, on
five days written demand from the Corporation or such subsidiary an amount
equal to such withholding tax or charge.
Section 16. Action by Corporation
Neither the existence of this Agreement nor the issuance of Common Stock
pursuant hereto shall impair the right of the Corporation or its stockholders
to make or effect any of the adjustments, recapitalizations or other changes
in the Common Stock referred to in Section 12, any change in the Corporation's
business, any issuance of debt obligations or stock by the Corporation or any
grant of options with respect to stock of the Corporation.
Section 17. Interpretation
The Employee agrees that all questions of interpretation and
administration of this Agreement shall be determined by the Committee in
its sole discretion and such determination shall be final, binding and
conclusive upon him. If the Committee is not acting, its functions shall
be performed by the Board of Directors of the Corporation, and each
reference in this Agreement to the Committee shall, in that event, be
deemed to refer to the Board of Directors.
Section 18. Applicable Law
This Agreement shall be governed and construed in accordance with the
laws of the State of Delaware.
Section 19. Terms and Conditions of Contingent Stock Plan of
Sealed Air Corporation
The authority of the Corporation to enter into this Agreement and the
issuance of shares of Common Stock pursuant hereto is derived exclusively from
the Plan and from a resolution of the Committee granting the Employee the
right to purchase shares of Common Stock pursuant to the Plan (the
"Resolution"). In the event that any terms or conditions of this Agreement
are in conflict with any terms or conditions of the Plan or of the Resolution,
the terms and conditions of the Plan or Resolution shall control.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be duly
executed under its corporate seal and the Employee has hereunto set his hand
and seal, all as of the day and year first above written.
SEALED AIR CORPORATION
By
-----------------------------
[Corporate Seal] Vice President - Finance
Attest:
----------------------------
Secretary
-----------------------------
Employee
Address of Employee:
-----------------------------
-----------------------------
