Exhibit 10.8
SECTION 162(M) 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 Organization and 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.
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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 on the date of this Agreement and ending on
the third anniversary of such date (the "Option Period"), 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. The Corporation shall have the right to
extend the period during which the Repurchase Option may become exercisable (the
"Extended Option Period") for such number of the shares (the "Extended Option
Shares") covered by this Agreement as shall be determined as described below.
Such right, which may be exercised more than once, shall be exercised by notice
(the "Extension Notice") to the Employee no later than the end of the Option
Period for the first Extended Option Period, or the then-current Extended Option
Period for any subsequent Extended Option Period, of the number of shares that
the Corporation designates as Extended Option Shares that shall remain subject
to the Repurchase Option through the next Extended Option Period. The number of
shares so designated as Extended Option Shares shall be determined by the
Corporation in its sole discretion based upon its estimate of the number of
shares then remaining subject to the Repurchase Option for which the related
compensation expense may exceed the Corporation's deduction limit under Section
162(m) of the Internal Revenue Code (based upon the assumption that the Employee
is a "covered employee" as that term is defined in such Section) for the taxable
year in which the Option Period or the then-current Extended Option Period, as
the case may be, ends after estimating all other compensation expected to be
paid to the Employee for such year.
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The term "Extended Option Period" shall mean, with respect to the first Extended
Option Period, the period ending on March 1 of the taxable year next following
the taxable year in which the Option Period ends or such later date as the
Corporation may designate in the first Extension Notice and, with respect to
each subsequent Extended Option Period, shall mean the period ending on March 1
of the next succeeding taxable year or such later date as the Corporation may
designate in the applicable Extension Notice. None of the shares of Common Stock
issued pursuant to this Agreement nor any interest therein shall be sold,
transferred or encumbered until the Repurchase Option as to such shares may no
longer become exercisable. The Repurchase Option shall become exercisable during
the Option Period or any Extended Option Period, as the case may be, 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 120 days
after the Employee's termination of employment. Such notice, which may be
delivered in person or sent by registered or certified mail, postage prepaid, or
by any other delivery service that provides written confirmation of delivery,
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, unless such certificates
are being held by the Corporation. 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
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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 as to any of
the shares covered by such certificate, 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
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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 as to any of the shares covered by a
certificate of Common Stock issued pursuant to this Agreement, the Employee may
surrender to the Corporation the certificate representing such shares in
exchange for a new certificate or certificates free of such legend for the
shares for which the Repurchase Option has expired, PROVIDED that the
Corporation shall issue a certificate or certificates bearing such legend for
any of the shares covered by the surrendered certificate for which the
Repurchase Option has not yet expired.
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
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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, joint ventures or other entities in which the Corporation
owns, directly or indirectly, in the aggregate at least 50 percent of the voting
power of the classes of stock of such entity entitled to
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vote and those partnerships, joint ventures and other entities in which the
Corporation owns, directly or indirectly, a 50% 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
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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
If, in the opinion of counsel for the Corporation, any federal, state or
local taxes or any other charges may now or later 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.
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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
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[Corporate Seal]
Attest:
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Secretary
------------------------------[L.S.]
Employee
Address of Employee:
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