Exhibit 10.13
AMENDMENT NO. 2 AND
ACKNOWLEDGEMENT dated as of March 25, 2003
(this "Amendment"), to the WARRANT AGREEMENT
dated as of May 31, 2000 (as amended,
modified, supplemented or restated from time
to time, the "Original Agreement"), among
PLIANT CORPORATION, a Utah corporation (the
"Company"), and the Persons signatory
thereto.
By executing and delivering this Amendment, the signatories hereto
hereby agree as set forth below. Capitalized terms used but not defined herein
shall have the respective meanings ascribed to them in the Original Agreement.
Section 1. Amendments.
(a) The Preamble of the Original Agreement is amended and
restated in its entirety to read as set forth below.
"The Company has entered into a Securities Purchase Agreement
dated as of May 31, 2000 (the "First Securities Purchase
Agreement"), pursuant to which the Company has issued to certain of
the Initial Holders (i) 100,000 shares of Series A Cumulative
Exchangeable Redeemable Preferred Stock (the "Preferred Stock") and
(ii) Warrants (as defined below) to purchase 43,242 shares of the
Company's common stock.
The Company has also entered into a second Securities
Purchase Agreement dated as of July 16, 2001 (the "Second Securities
Purchase Agreement"), pursuant to which the Company has issued to
certain of the Initial Holders (i) 30,973 shares of Preferred Stock
and (ii) Warrants to purchase 31,437.595 shares of the Company's
common stock.
The Company has also entered into a third Securities Purchase
Agreement dated as of March 25, 2003 (the "Third Securities Purchase
Agreement"), pursuant to which the Company has issued or will issue
to certain of the Initial Holders (i) up to 35,000 shares of
Preferred Stock and (ii) Warrants to purchase up to 153,867 shares
of the Company's common stock.
This Agreement sets forth terms and conditions applicable to
the Warrants."
(b) Section 2.1 of the Original Agreement is amended and restated
in its entirety to read as set forth below.
"Concurrently with the execution and delivery of the First
Securities Purchase Agreement, the Company has issued and delivered
Warrants to certain of the Initial Holders in accordance with the
First Securities Purchase Agreement. In connection with the
execution and delivery of the Second Securities Purchase Agreement,
the Company has issued and delivered Warrants to certain of the
Initial Holders in accordance with the Second Securities Purchase
Agreement. The Company will issue and deliver Warrants to certain of
the Initial Holders in accordance with the Third Securities Purchase
Agreement on or after the date of the Third Securities Purchase
Agreement. The provisions of this Agreement shall apply to all
Warrants, and each Holder that is not a party to this Agreement, by
its acceptance of a Warrant, agrees to be bound by the applicable
provisions hereof."
(c) The Original Agreement is amended by deleting the fifth
sentence of Section 3.1(a) and inserting the following sentence in lieu thereof:
"Irrespective of any adjustments in the Exercise Price or the
number or kind of shares or other securities or property issuable
upon the exercise of Warrants, any Warrants theretofore or
thereafter issued may, as a matter of form, continue to express the
same Exercise Price and the same number of shares of Common Stock
issuable upon the exercise of such Warrants as were stated in the
Warrants initially issued pursuant to the First Securities Purchase
Agreement, the Second Securities Purchase Agreement or the Third
Securities Purchase Agreement, as applicable."
(d) The Original Agreement is amended by deleting the first
sentence of Section 4.3(a) and inserting the following sentence in lieu thereof:
"As promptly as practicable but in any event within seven (7)
days (or if the Common Stock is publicly Traded at such time, within
three (3) days or such other time period as is customary in the
market for Publicly Traded securities) following the delivery date
(the "Delivery Date") of (i) an Exercise Form or Exchange Form in
accordance with Section 4.1 or 4.2, (ii) the related Warrant and
(iii) any required payment of the Exercise Price, the Company shall,
without charge, issue, register and deliver one or more stock
certificates representing the aggregate number of shares of Common
Stock to which the Holder of such Warrant is entitled and, upon
compliance with the applicable provisions of this Warrant Agreement,
the Other Equity Documents and the First Securities Purchase
Agreement, the Second Securities Purchase Agreement or the Third
Securities Purchase Agreement, as applicable, transfer to such
Holder appropriate evidence of ownership of other securities or
property (including any cash) to which such Holder is entitled, in
2
such denominations, and registered or otherwise placed in, or
payable to the order of, such name or names, as may be directed in
writing by such Holder."
(e) The Original Agreement is amended by deleting the last
sentence of Section 4.3(f) and inserting the following sentence in lieu thereof:
"Notwithstanding anything in this Warrant Agreement to the
contrary, in no event shall a Holder be entitled to exercise a
Warrant unless (i) a registration statement filed under the
Securities Act in respect of the issuance of the Warrant Shares is
then effective or (ii) the exercise of such Warrants is exempt from
the registration requirements of the Securities Act and such
securities are qualified for sale or exempt from qualification under
the applicable securities laws of the states or other jurisdictions
in which such Holders reside, such exemption to be evidenced by an
opinion of counsel to the extent such an opinion would be required
under Section 6.3 of the First Securities Purchase Agreement,
Section 6.3 of the Second Securities Purchase Agreement or Section
7.3 of the Third Securities Purchase Agreement, as applicable, in
respect of a transfer to the Person to whom the Warrant Shares are
to be issued."
(f) Section 7.3(c) of the Original Agreement shall be amended and
restated in its entirety to read as set forth below.
"(c) Additional Initial Holders. Any "Purchaser" (as defined
in the Second Securities Purchase Agreement or the Third Securities
Purchase Agreement) who is not already an Initial Holder hereunder
shall become an `Initial Holder' upon execution of a counterpart to
this Agreement. Notwithstanding anything to the contrary contained
herein, Schedule I attached hereto may be amended from time to time
without the consent of the Requisite Holders to add any "Purchasers"
who have become Initial Holders and to otherwise update the number
of Warrant Shares issued to the Initial Holders."
(g) Schedule I of the Original Agreement, as amended through the
date hereof, is hereby amended and restated in its entirety as set forth on
Exhibit A attached hereto.
Section 2. Acknowledgement.
The Requisite Holders acknowledge that the adjustments set forth in
Article V of the Warrant Agreement are not applicable to the purchase of
Warrants issued pursuant to the Third Securities Purchase Agreement and the
issuance of any such Warrants Shares following the exercise of such Warrants
pursuant to the Warrant Agreement.
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Section 3. No other Amendments or Waivers.
Except as modified by this Amendment, the Original Agreement shall
remain in full force and effect, enforceable in accordance with its terms. This
Amendment is not a consent to any waiver or modification of any other terms or
conditions of the Original Agreement or any of the instruments or documents
referred to in the Original Agreement and shall not prejudice any right or
rights which the parties thereto may now or hereafter have under or in
connection with the Original Agreement or any of the instruments or documents
referred to therein.
Section 4. Effectiveness; Counterparts.
This Amendment may be executed in two or more counterparts, all of
which shall be considered one and the same agreement and shall become effective
when one or more counterparts have been signed by the Requisite Holders and the
Company (by facsimile or otherwise), it being understood that all of the
foregoing need not sign the same counterpart. Any counterpart or other signature
to this Amendment that is delivered by facsimile shall be deemed for all
purposes as constituting good and valid execution and delivery by such party of
this Amendment.
Section 5. Governing Law.
This Amendment shall be governed by and construed and enforced in
accordance with the laws of the State of New York without giving effect to any
choice or conflict of law provision or rule (whether in the State of New York or
any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York.
*******
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IN WITNESS WHEREOF, the parties have duly executed this Amendment
No. 2 to the Warrant Agreement as of the date first above written.
PLIANT CORPORATION
By: /s/Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Executive Vice President and
Chief Financial Officer
SOUTHWEST INDUSTRIAL FILMS, LLC
By: X.X. Xxxxxx Partners (BHCA), L.P.
its Member
By: JPMP Master Fund Manager, L.P.,
its General Partner
By: JPMP Capital Corp.,
its General Partner
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Name:
Title:
WACHOVIA CAPITAL PARTNERS, LLC
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: Partner
WACHOVIA CAPITAL PARTNERS 2001, LLC
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Partner
NEW YORK LIFE CAPITAL PARTNERS,
L.P.
By: NYLCAP Manager LLC,
its Investment Manager
By: _____________________________________
Name:
Title:
THE NORTHWESTERN MUTUAL LIFE
INSURANCE COMPANY
By: /s/Xxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Its Authorized Representative
THE CHRISTENA XXXXX X. XXXXXX
TRUST
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Trustee
PERRY ACQUISITION PARTNERS-3, L.P.
By: Perry Investors-3, LLC,
its General Partner
By: Perry Capital, LLC,
its Managing Member
By: Perry Corp.,
its Managing Member
By: /s/ Xxxxxxx Xxxxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxxxx
Title: Managing Director and Chief
Financial Officer
PERRY ACQUISITION PARTNERS-2, L.P.
By: Perry Investors-2, LLC
By: /s/ Xxxxxxx Xxxxxxxxxxx
-------------------------------------
Name: Xxxxxxx Xxxxxxxxxxx
Title: Managing Director and Chief
Financial Officer
DURHAM CAPITAL, LTD.
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: General Partner
XXXXXXXX CAPITAL, LLC
By: _____________________________________
Name:
Title:
XXXXXX X. XXXXXXX XXX
By: _____________________________________
Name:
Title:
/s/ Xxxx X. Xxxxx
-----------------------------------------
Xxxx X. Xxxxx
/s/ Xxxxxxx X. Xxxxxx
-----------------------------------------
Xxxxxxx X. Xxxxxx
_________________________________________
Xxxxxx X. Xxxxxxx
_________________________________________
Xxxxx X. Xxxxxxxx
/s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Xxxxx X. Xxxxxxx
_________________________________________
Name:
_________________________________________
Name:
_________________________________________
Name:
_________________________________________
Name:
_________________________________________
Name:
Exhibit A
---------
SCHEDULE I/1/
Initial Holders
---------------
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NUMBER OF WARRANT
INVESTOR SHARES
--------------------------------------------------------------------------------
Southwest Industrial Films, LLC
c/o X.X. Xxxxxx Partners, LLC
1221 Avenue of the Americas, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Official Notices Clerk
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
with a copy to:
O'Melveny & Xxxxx LLP
00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx X. Xxxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
--------------------------------------------------------------------------------
New York Life Capital Partners, L.P.
00 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
With a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx, LLP
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
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/1/ Schedule I needs to updated and completed by the Company.
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NUMBER OF WARRANT
INVESTOR SHARES
--------------------------------------------------------------------------------
and to:
Office of the General Counsel
New York Life Insurance Company
00 Xxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
--------------------------------------------------------------------------------
The Northwestern Mutual Life Insurance Company
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx Xxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
With a copy to:
Akin, Gump, Strauss, Xxxxx & Xxxx, LLP
000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
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NUMBER OF WARRANT
INVESTOR SHARES
--------------------------------------------------------------------------------
Wachovia Capital Partners 2001, LLC
000 Xxxxx Xxxxxxx Xxxxxx
Xxx Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxx III
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
With a copy to:
Xxxxxxx Xxxxxxxxx Xxxxxxx & Xxxxxxx, L.L.P.
Bank of America Corporate Center, Suite 4200
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: X. Xxxxxxxx Xxxxxx, III
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
--------------------------------------------------------------------------------
Perry Acquisition Partners-3, L.P.
000 Xxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxxxxxxxx
Telephone No.: (000) 000-0000
Telecopier No.: (000) 000-0000
With a copy to:
Xxxxxxx Procter LLP
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx Xxxxxxxx
Telephone No.: (000) 000-0000
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