Exhibit 10.64
SEVERANCE AND RELEASE AGREEMENT
This Severance and Release Agreement (this "AGREEMENT") is entered into
effective as of March 18, 2005 (the "EFFECTIVE DATE"), by and between XXXX
XXXXXXX, an individual ("EXECUTIVE") and PLIANT CORPORATION, a Utah corporation
("PLIANT").
RECITALS
WHEREAS, Executive has been employed by Pliant as an employee at will and
has served as an officer of Pliant and as an officer and/or manager of certain
of Pliant's direct and indirect subsidiaries (collectively, the "SUBSIDIARIES");
and
WHEREAS, Executive has decided to resign her positions as an officer and/or
manager of Pliant and the Subsidiaries effective as of the Effective Date; and
WHEREAS, Executive has decided for personal reasons to resign her
employment with Pliant, thereby terminating the employment relationship between
Executive and Pliant, effective as of April 1, 2005 (the "EMPLOYMENT RESIGNATION
DATE"); and
WHEREAS, Executive and Pliant agree that the employment relationship
between Executive and Pliant shall be severed as set forth herein; and
WHEREAS, Executive purchased 32 shares of Pliant's Series B Preferred Stock
pursuant to the Pliant Corporation 2004 Restricted Stock Incentive Plan (the
"PLAN" and the Restricted Stock Agreement, dated September 24, 2004, between
Executive and Pliant (the "RESTRICTED STOCK AGREEMENT"); and
WHEREAS, upon such termination of Executive's employment with Pliant,
Pliant has the right pursuant to the Restricted Stock Agreement to repurchase
28 shares of Pliant's Series B Preferred Stock held by Executive (the
"REPURCHASED SHARES"); and
WHEREAS, in consideration of this Agreement and the releases,
acknowledgements and agreements by Executive set forth herein, Pliant has agreed
to make certain payments to Executive, which payments Executive is not otherwise
entitled to receive.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the premises,
covenants, payments and agreements contained herein, the receipt and adequacy of
which are hereby acknowledged, and intending to be legally bound, Pliant and
Executive agree as follows:
1. RESIGNATION. Executive hereby resigns each of her officer and/or
manager positions at Pliant and its Subsidiaries effective as of the Effective
Date. Executive hereby resigns her employment with Pliant as of the Employment
Resignation Date, and the employment relationship between Executive and Pliant
is hereby terminated as of the Employment Resignation Date. During the period
commencing on the Effective Date and ending on the Employment Resignation Date
(the "TRANSITION PERIOD"), Executive shall assist in transitioning her duties to
one or more other employees of Pliant; PROVIDED, HOWEVER, that during
the Transition Period Executive may perform such transition services from home
or such other location as Executive chooses and shall not be required to report
to work at any Pliant location.
2. ACKNOWLEDGEMENTS BY EXECUTIVE. Executive acknowledges and agrees that:
(i) each of the Plan and the Restricted Stock Agreement remains in full force
and effect in accordance with the terms thereof, and Executive will abide by the
terms thereof; (ii) other than the payments and benefits expressly required
pursuant to SECTIONS 3, 4 AND 5 below, Pliant has paid Executive all
compensation and other amounts due and owing to Executive related to any
employment, officer, director or manager relationship or otherwise, including,
without limitation, all salary, commissions, bonuses, sick pay and vacation pay,
and no other amounts are owed to Executive by Pliant or any of the Subsidiaries
for any reason whatsoever; (iii) other than the four (4) shares of Pliant Series
B Preferred Stock retained by Executive (the "RETAINED INTEREST"), Executive has
no equity or similar interest whatsoever in Pliant or any of the Subsidiaries;
(iv) the Retained Interest is, as of the Effective Date, subject to the Plan and
the Restricted Stock Agreement; (v) Executive has no right to any future
position (including, without limitation, employee, officer, director or manager)
with Pliant or any of the Subsidiaries; (vi) except as expressly provided in
SECTION 4 below or as provided by applicable law, upon the Employment
Resignation Date Executive is no longer eligible to participate in or receive
benefits under any applicable benefit plans, including, without limitation,
health insurance plans, dental insurance plans, life insurance plans, short and
long term disability plans, 401(k) plans and any other benefit plans or programs
available to employees of Pliant (directly or indirectly); and (vii) as of the
Employment Resignation Date, Executive is no longer an employee of Pliant and
may under no circumstances represent herself to be in any way connected with or
a representative of Pliant or any of the Subsidiaries. Executive further
acknowledges and agrees that the payments and accommodations required pursuant
to SECTIONS 3, 4 AND 5 below are amounts or benefits to which she would not
otherwise be entitled and such payments and benefits are being provided by
Pliant pursuant to the terms of this Agreement in consideration of the
agreements, acknowledgements, covenants and releases contained herein.
3. LUMP SUM PAYMENT. Provided Executive has not cancelled this Agreement
pursuant to SECTION 18 below, Pliant shall pay Executive, on April 1, 2005, an
amount equal to $404,436.60 (calculated as (i) $225,000 which is one year of
Executive's base salary, (ii) $112,500 which is the bonus at target to which
Executive would be entitled with respect to calendar year 2005 if Executive
remained employed by Pliant through December 31, 2005, plus (iii) $12,177.76
which is Executive's accrued vacation as of the Employment Resignation Date,
plus (iv) $222.84 which is pending expense reimbursement owed to Executive, plus
(v) $50,000, and plus (vi) $4,536 which is the amount to be paid by Pliant for
the Repurchased Shares pursuant to SECTION 7 below) (the "LUMP SUM PAYMENT").
4. MEDICAL, DENTAL AND BASIC LIFE BENEFITS. Provided Executive has not
cancelled this Agreement pursuant to SECTION 18 below, Executive shall be
entitled to continue participation in the Pliant medical, dental and basic life
plans in which Executive participates immediately prior to the Effective Date
during the Transition Period and for a period of up to twelve months (12) months
commencing on the Employment Resignation Date and ending March 31, 2006. At all
times during such period, Executive shall continue to be responsible for, and
shall pay to Pliant on a monthly basis, the then current active employee
contribution rate amounts under such plans. Commencing April 1, 2006, Executive
shall be eligible for extended
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continuation coverage under such medical plan for a period of eighteen (18)
months. At all times during such extended continuation period, Executive shall
be responsible for, and shall pay to Pliant on a monthly basis, the then current
COBRA contribution rate amounts. The medical, dental and basic life benefits
described in this SECTION 4 are referred to in this Agreement as the "CONTINUED
MEDICAL, DENTAL AND BASIC LIFE BENEFITS"). Notwithstanding anything in this
Agreement to the contrary, the Continued Medical, Dental and Basic Life
Benefits, and Executive's right to participation in the plans related thereto,
shall terminate immediately in the event Executive obtains alternative
employment which offers comparable coverage, obtains alternative comparable
medical, dental and/or basic life coverage prior to the expiration of such
rights or as otherwise required under applicable law.
5. OUTPLACEMENT SERVICE BENEFITS; LEGAL FEES. Provided Executive has not
cancelled this Agreement pursuant to SECTION 18 below, Executive shall be
entitled to receive outplacement services for a period of twelve (12) months
commencing on the Effective Date; PROVIDED, HOWEVER, that Pliant's obligations
pursuant to this SECTION 5 shall in no event exceed $20,000 (the "OUTPLACEMENT
BENEFITS"). In addition, provided Executive has not cancelled this Agreement
pursuant to SECTION 18 below, Executive shall be entitled to be reimbursed by
Pliant for reasonable legal fees incurred and paid by Executive in connection
with the negotiation and execution of this Agreement in an aggregate amount not
to exceed $7,500, provided that detailed documentation substantiating such
reasonable legal fees is provided to Pliant (the "LEGAL FEE BENEFIT").
6. RELEASES.
(a) RELEASE BY EXECUTIVE. In consideration of the payments by and
agreements of Pliant contained herein, Executive agrees to
forever RELEASE and DISCHARGE Pliant, the Subsidiaries, X.X.
Xxxxxx Partners, LLC and each of their respective direct and
indirect parents, subsidiaries and affiliates, as well as all of
their respective shareholders, members, directors, officers,
managers, employees, agents and attorneys (hereinafter
collectively referred to as the "RELEASED PARTIES") and the
heirs, executors, administrators, successors and assigns of the
Released Parties from any and all charges, complaints, claims,
promises, suits, debts, sums of money, accounts, covenants,
contracts, controversies, damages, judgments, rights,
obligations, agreements and causes of action, whether known or
unknown, whether contingent or liquidated, whether by
apportionment or otherwise, of every kind, nature or description
arising by reason of any matter, cause or thing whatsoever at any
time from the beginning of the World to the Effective Date. This
release includes, but is not limited to: any payments required
pursuant to the Management Incentive Plan; any claims as a
stockholder of the Company; any claims relating in any way to
Pliant's Series B Preferred Stock (including, without limitation,
any claim for entitlement to any shares thereof other than the
Retained Interest retained by Executive hereunder); any claims
relating in any way to any incentive plan or any agreement
relating thereto, or any option or other right arising thereunder
(which Executive acknowledges and agrees terminate in their
entirety upon termination of
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Executive's employment by Pliant); any claims for continued
employment, employment pay, incentive pay, performance bonuses,
commissions, vacation pay, sick pay, severance pay and benefits
(except accrued retirement benefits); any rights arising out of
alleged violations or breaches of any express or implied
agreements; breach of the implied covenant of good faith and fair
dealing; any legal restrictions on the Released Parties' rights
to terminate employees; any tort; negligent or intentional
misrepresentation; wrongful discharge; intentional or negligent
interference with contractual relations; intentional or negligent
infliction of emotional distress; whistleblowing; or past
violation of any statute including: Title VII of the Civil Rights
Act, the Age Discrimination in Employment Act as amended by the
Older Worker Benefit Protection Act; ERISA, COBRA, and any other
federal, state or local rule, regulation or law. Executive
promises not to initiate a lawsuit or bring a claim against the
Released Parties, in any court or otherwise, relating to any
action released under this SECTION 6(a), under any common law
claim, whether in law or equity, or federal, state or local
statute, ordinance or rule of law. Executive also waives any
remedy or recovery in any action that may be brought on her
behalf by any government agency or other person. Notwithstanding
the foregoing, Executive reserves all rights relating to the Lump
Sum Payment, the Continued Medical, Dental and Basic Life
Benefits, the Outplacement Benefits, the Legal Fee Benefit and
any rights through the Employment Resignation Date as an officer
of Pliant under Pliant's statutory and contractual officer and
director indemnification obligations.
(b) RELEASE BY PLIANT. In consideration of the agreements, covenants
and releases of Executive contained herein, Pliant agrees to
forever RELEASE and DISCHARGE Executive and her heirs and
executors, from any and all charges, complaints, claims,
promises, suits, debts, sums of money, accounts, covenants,
contracts, controversies, damages, judgments, rights,
obligations, agreements and causes of action, whether known or
unknown, whether contingent or liquidated, whether by
apportionment or otherwise, of every kind, nature or description
arising by reason of any matter, cause or thing whatsoever at any
time from the beginning of the World to the Effective Date;
PROVIDED, HOWEVER, that notwithstanding the foregoing, the
release set forth in this SECTION 6(b) shall not apply to (i) any
charges, complaints, claims, promises, suits, debts, sums of
money, accounts, covenants, contracts, controversies, damages,
judgments, rights, obligations, agreements or causes of action to
the extent the same arise from or relate to fraud, embezzlement,
theft or willful misconduct on the part of Executive or (ii)
Executive's obligations under this Agreement, the Plan, the
Restricted Stock Agreement or pursuant to the covenants of any
incentive bonus plan or program in which Executive has been a
participant during her employment. Pliant promises not to
initiate a lawsuit or bring a claim against Executive or her
heirs or executors, in any court or otherwise, relating to any
action released under
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this SECTION 6(b), under any common law claim, whether in law or
equity, or federal, state or local statute, ordinance or rule of
law.
7. REPURCHASE OF SHARES OF SERIES B PREFERRED STOCK. In accordance with
the provisions of Section 8 of the Restricted Stock Agreement, Pliant hereby
notifies Executive that it is exercising its right to purchase the Repurchased
Shares. For purposes of determining the number of shares which Pliant is
entitled to repurchase pursuant to the Restricted Stock Agreement, Executive's
employment shall be deemed to have terminated as of the Effective Date. Section
8 of the Restricted Stock Agreement provides that the price to be paid for the
Repurchased Shares is $162.00 per share, resulting in an aggregate purchase
price for the Repurchased Shares of $4,536. Executive and Pliant acknowledge and
agree that such purchase price is included within the Lump Sum Payment.
Executive hereby assigns and transfers unto Pliant all of her right title and
interest in and to the Repurchased Shares. Executive and Pliant acknowledge and
agree that, as of the date hereof, no certificate evidencing the Repurchased
Shares (or the Retained Interest) has been issued to Executive. Executive
agrees, from time to time hereafter, to take such further actions and execute
and deliver such further documents as Pliant may request to effect and/or
evidence the transfer of the Repurchased Shares to Pliant. Following the
Employment Termination Date, Pliant shall deliver to Executive a certificate
representing the Retained Interest. Executive and Pliant acknowledge and agree
that the provisions of this SECTION 7 satisfy in full the obligations of Pliant
pursuant to the Restricted Stock Agreement related to the purchase by Pliant of
the Repurchased Shares.
8. NONDISCLOSURE; DELIVERY OF MATERIALS.
(a) Executive shall not at any time or in any manner, directly or
indirectly, use or disclose to anyone, other than Pliant, any
trade secrets or other Confidential Information (defined below)
learned or obtained by her while an employee and/or officer of
Pliant.
(b) Executive shall deliver to Pliant at the Employment Resignation
Date or at any time Pliant may request, all property belonging to
Pliant or its Subsidiaries, including memoranda, notes, plans,
records, reports, computer tapes and software and other documents
and data (and copies thereof) relating to the Confidential
Information or Work Product (defined below) which she may then
possess or have under her control regardless of the location or
form of such material and, if requested by Pliant, will provide
Pliant with written confirmation that all such materials have
been delivered to Pliant.
(c) "CONFIDENTIAL INFORMATION" means information that is not known to
the public, that is used, developed or obtained by Pliant or any
of its Subsidiaries in connection with the Business, and that the
Executive learns in the course of performing services for Pliant
or any of its Subsidiaries, including, but not limited to, (a)
information, observations, procedures and data obtained by the
Executive while employed by Pliant concerning the business or
affairs of Pliant or any of its Subsidiaries, (b) products or
services of Pliant or any of its Subsidiaries, (c) costs and
pricing structures of Pliant or any of its Subsidiaries, (d)
analyses of Pliant or any of its
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Subsidiaries, (e) drawings, photographs and reports of Pliant or
any of its Subsidiaries, (f) computer software, including
operating systems, applications and program listings of Pliant or
any of its Subsidiaries, (g) flow charts, manuals and
documentation of Pliant or any of its Subsidiaries, (h) data
bases of Pliant or any of its Subsidiaries, (i) accounting and
business methods of Pliant or any of its Subsidiaries, (j)
inventions, devices, new developments, methods and processes,
whether patentable or unpatentable and whether or not reduced to
practice of Pliant or any of its Subsidiaries, (k) customers and
customer lists of Pliant or any of its Subsidiaries, (l) other
copyrightable works of Pliant or any of its Subsidiaries, (m) all
production methods, processes, technology and trade secrets of
Pliant or any of its Subsidiaries, and (n) all similar and
related information of Pliant or any of its Subsidiaries in
whatever form. Confidential Information will not include any
information that is now or later becomes part of the public
domain.
(d) "WORK PRODUCT" shall mean all inventions, innovations,
improvements, technical information, systems, software
developments, methods, designs, analyses, drawings, reports,
service marks, trademarks, tradenames, logos and all similar or
related information (whether patentable or unpatentable) which
relates to Pliant's or any of its Subsidiaries' business,
research and development or existing or future products or
services and which are conceived, developed or made by the
Executive (whether or not during usual business hours and whether
or not alone or in conjunction with any other person or entity)
while employed by Pliant together with all patent applications,
letters patent, trademark, tradename and service xxxx
applications or registrations, copyrights and reissues thereof
that may be granted for or upon any of the foregoing.
(e) "BUSINESS" means the business of producing and distributing
polymer-based, value-added films and flexible packaging products
for food, personal care, medical, agricultural, industrial and
other applications.
9. EXECUTIVE COVENANTS. Executive, as a condition to this Agreement and
the payments to be made by Pliant hereunder, agrees that for a period of time
beginning on the Effective Date and ending on the date which is one year after
the Employment Resignation Date, Executive shall not:
(a) directly or indirectly, either individually or as a principal,
partner, agent, employee, employer, consultant, stockholder,
joint venturer, or investor, or as a director or officer of any
corporation or association, or in any other manner or capacity
whatsoever, engage in, assist or have any active interest in a
business located anywhere in (w) the World where Pliant or any of
its affiliates is doing business during the term of this
covenant, (x) the United States, (y) the State of Illinois or (z)
within a 500 mile radius of the Chicago, Illinois metropolitan
area that (i) develops, manufactures, markets and/or sells
value-added film, flexible packaging products and/or recloseable
technologies including zippers and sliders or
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otherwise competes with or is similar in concept, design, format,
or otherwise to the business conducted by Pliant and its
affiliates at any time during the term of this covenant; or (ii)
purchases from Pliant (notwithstanding the above, this paragraph
shall not be construed to prohibit the Executive from owning less
than three percent (3%) of the securities of a corporation which
is publicly traded on a securities exchange or over-the-counter);
(b) directly or indirectly, either individually, or as a principal,
partner, agent, employee, employer, consultant, stockholder,
joint venturer, or investor, or as a director or officer of any
corporation or association, or in any other manner or capacity
whatsoever, (i) divert or attempt to divert (by solicitation,
diversion or otherwise) from Pliant or its affiliates any
business with any customer, prospective customer or account of
Pliant or its affiliates with which Executive had any contact or
association, which was under the supervision of Executive, or the
identity of which was learned by the Executive as a result of
Executive's employment with Pliant; (ii) accept the business of
any customer, prospective customer or account of Pliant or its
affiliates with which Executive had any contact or association,
which was under the supervision of Executive, or the identity of
which was learned by Executive as a result of Executive's
employment with Pliant, whether solicited or not solicited by
Executive if such business would be diverted from Pliant or
otherwise adversely effect Pliant's business with such entity;
(iii) solicit, induce or attempt to induce any salesperson,
distributor, supplier, vendor, manufacturer, representative,
agent, jobber or other person transacting business with Pliant
and/or its affiliates to terminate their relationship or
association with Pliant and/or its affiliates, or to represent,
distribute or sell services or products in competition with
services or products of Pliant or its affiliates; (iv) induce,
solicit, cause or attempt to induce or cause any employee of
Pliant or its affiliates to leave the employ of Pliant or its
affiliates; or (v) hire or otherwise accept the services of any
employee or former employee of Pliant, whether solicited or not
solicited by Executive.
(c) Notwithstanding the foregoing, in the event that Executive
desires, during the restrictive period in this SECTION 9, to
engage in activity that Executive believes may be in breach of
this SECTION 9, Executive may discuss such activity with the
Chief Executive Officer of Pliant and Pliant (A) will provide
Executive with a decision on whether such activity constitutes a
breach of this SECTION 9 and (B) may, upon the written consent of
the Chief Executive Officer of Pliant and Pliant's Board of
Directors, consent to Executive's participation in such activity.
10. INJUNCTIVE RELIEF. Executive acknowledges that any breach of this
Agreement would cause irreparable injury to Pliant and/or the Released Parties
and that their remedy at law would be inadequate and, accordingly, consents to
and agrees that temporary and permanent
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injunctive relief may be granted in any proceeding which may be brought to
enforce this Agreement, without the necessity of proof of actual damage or
posting of any bond.
11. DISPARAGEMENT/CONFIDENTIALITY. The parties agree that neither will
make any disparaging remarks or statements about the other to any third parties.
The parties agree to keep the existence and terms of this Agreement totally
confidential except (i) in Executive's case, with regard to members of her
immediate family, her lawyer(s), her accountant(s), her financial/tax advisor(s)
and as compelled by court process, and (ii) in Pliant's case, with regard to
Pliant's current, future and prospective principals, affiliates, direct or
indirect subsidiaries, officers, directors, shareholders, employees, lawyers,
accountants, investment bankers, lenders, and other agents (in each case,
including, without limitation, the Released Parties) and as compelled by court
process. The parties further agree to inform each of these individuals and
entities of the existence of this confidentiality provision and that the
respective parties shall be responsible in the event any one or more of these
individuals or entities provides this information to any other person or entity.
12. CERTAIN REMEDIES. In the event Executive violates the terms of
SECTIONS 8, 9 OR 11 of this Agreement or otherwise breaches this Agreement, the
Plan or the Restricted Stock Agreement, in each case as finally determined by a
court of competent jurisdiction or arbitrator pursuant to a binding arbitration
proceeding, Executive (i) shall immediately forfeit all right to future benefits
under this Agreement (including, without limitation the Continued Medical,
Dental and Basic Life Benefits, Outplacement Benefits and Legal Fee Benefit) and
any Lump Sum Payment and payments in respect of the Continued Medical, Dental
and Basic Life Benefits, Outplacement Benefits and Legal Fee Benefit shall be
immediately recoverable by Pliant from Executive; and (ii) must pay reasonable
attorneys' fees and all other costs incurred by Pliant as a result of
Executive's breach. Nothing in this SECTION 12 or elsewhere in this Agreement
shall limit in any way the rights or remedies of any Released Party against
Executive at any time with respect to this Agreement, Executive's obligations
under the Employment Agreement (including, without limitation, the Plan and the
Restricted Stock Agreement), or otherwise.
13. SEVERABILITY. It is the desire and intent of the parties hereto that
the provisions of this Agreement be enforced to the fullest extent permissible
under the laws and public policies applied in each jurisdiction in which
enforcement is sought. Accordingly, if any particular provision of this
Agreement shall be adjudicated by a court of competent jurisdiction to be
invalid, prohibited or unenforceable for any reason, such provision, as to such
jurisdiction, shall be ineffective, without invalidating the remaining
provisions of this Agreement or affecting the validity or enforceability of this
Agreement or affecting the validity or enforceability of such provision in any
other jurisdiction. Notwithstanding the foregoing, if such provision could be
more narrowly drawn so as not to be invalid, prohibited or unenforceable in such
jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without
invalidating the remaining provisions of this Agreement or affecting the
validity or enforceability of such provision in any other jurisdiction.
14. LITIGATION. THIS AGREEMENT SHALL BE GOVERNED BY, CONSTRUED, APPLIED
AND ENFORCED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ILLINOIS, AND
NO DOCTRINE OF CHOICE OF LAW SHALL BE USED TO APPLY ANY LAW OTHER THAN THAT OF
ILLINOIS, AND NO DEFENSE,
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COUNTERCLAIM OR RIGHT OF SET-OFF GIVEN OR ALLOWED BY THE LAWS OF ANY OTHER STATE
OR JURISDICTION, OR ARISING OUT OF THE ENACTMENT, MODIFICATION OR REPEAL OF ANY
LAW, REGULATION, ORDINANCE OR DECREE OF ANY FOREIGN JURISDICTION, BE INTERPOSED
IN ANY ACTION HEREON. SUBJECT TO SECTION 15, THE PARTIES AGREE THAT ANY ACTION
OR PROCEEDING TO ENFORCE OR ARISING OUT OF THIS AGREEMENT MAY BE COMMENCED IN
THE STATE COURTS, OR IN THE UNITED STATES DISTRICT COURTS IN THE STATE OF
ILLINOIS. THE PARTIES CONSENT TO SUCH JURISDICTION, AGREE THAT VENUE WILL BE
PROPER IN SUCH COURTS AND WAIVE ANY OBJECTIONS BASED UPON FORUM NON CONVENIENS.
THE CHOICE OF FORUM SET FORTH IN THIS SECTION 14 SHALL NOT BE DEEMED TO PRECLUDE
THE ENFORCEMENT OF ANY ACTION UNDER THIS AGREEMENT IN ANY OTHER JURISDICTION.
15. ARBITRATION. THE PARTIES HEREBY WAIVE AND SHALL NOT SEEK A JURY TRIAL
IN ANY LAWSUIT, PROCEEDING, CLAIM, COUNTERCLAIM, DEFENSE OR OTHER LITIGATION OR
DISPUTE UNDER OR IN RESPECT OF THIS AGREEMENT. THE PARTIES AGREE THAT ANY SUCH
DISPUTE RELATING TO OR IN RESPECT OF THIS AGREEMENT, ITS NEGOTIATION, EXECUTION,
PERFORMANCE, SUBJECT MATTER, OR ANY COURSE OF CONDUCT OR DEALING OR ACTIONS
UNDER OR IN RESPECT OF THIS AGREEMENT, SHALL BE SUBMITTED TO, AND RESOLVED
EXCLUSIVELY PURSUANT TO ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL
ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION, INCLUDING THE RULES
FOR EMERGENCY MEASURES WHICH ARE HEREBY EXPRESSLY ADOPTED. SUCH ARBITRATION
SHALL TAKE PLACE IN CHICAGO, ILLINOIS AND SHALL BE SUBJECT TO THE SUBSTANTIVE
LAWS OF THE STATE OF ILLINOIS. DECISIONS PURSUANT TO SUCH ARBITRATION SHALL BE
FINAL, CONCLUSIVE AND BINDING ON THE PARTIES. THE PREVAILING PARTY IN
ARBITRATION SHALL BE ENTITLED TO RECOVER REASONABLE COSTS AND ATTORNEYS' FEES
FROM THE OTHER PARTY. UPON THE CONCLUSION OF ARBITRATION, THE PARTIES MAY APPLY
TO ANY APPROPRIATE COURT OF THE TYPE DESCRIBED IN SECTION 14 TO ENFORCE THE
DECISION PURSUANT TO SUCH ARBITRATION.
16. MISCELLANEOUS.
(a) Except for Executive's obligations pursuant to the Plan and the
Restricted Stock Agreement, this Agreement embodies the entire
agreement and understanding of the parties hereto in respect of
the subject matter contained herein and may not be modified
orally, but only by a writing subscribed by the party charged
therewith. Except for Executive's obligations pursuant to the
Plan and the Restricted Stock Agreement, this Agreement
supersedes all prior agreements and understandings (whether oral
or written) between the parties with respect to such subject
matter.
(b) This Agreement constitutes the product of the negotiation of the
parties hereto and the enforcement hereof shall be interpreted in
a neutral manner,
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and not more strongly for or against any party based upon the
draftsmanship hereof.
(c) This Agreement may be executed in two (2) or more counterparts,
each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(d) Executive will furnish Pliant with such other and further
documents, certificates and information as Pliant shall
reasonably request in connection with this Agreement and the
consummation of the transactions contemplated hereby.
(e) This Agreement and all of the provisions hereof shall be binding
upon and inure to the benefit of the parties hereto and their
respective heirs, successors and permitted assigns, but neither
this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by Executive.
17. THIRD PARTY BENEFICIARIES. The parties agree that the Released Parties
shall be and hereby are third party beneficiaries to this Agreement with the
same rights to enforce the terms of this Agreement as the parties hereto.
Nothing contained herein shall be construed to impose any obligation on the
Released Parties (other than Pliant as expressly set forth herein) with respect
to or pursuant to this Agreement or any document or agreement referenced herein.
18. RELINQUISHMENT OF ADEA CLAIM. Executive agrees to relinquish any
claims arising under the Age Discrimination in Employment Act (the "ADEA") and
acknowledges receiving monies and other consideration in addition to that which
Executive was already entitled to in order to release any claim Executive may
have had under the ADEA. Under the ADEA, and the Older Workers Benefit
Protection Act of 1999, Executive is allowed a period of forty five (45) days to
consider this Agreement as it relates to any age discrimination claim. However,
Executive specifically agrees to waive this forty five (45) day period in order
to commence payment under this Agreement. Executive acknowledges that under the
law, this Agreement does not become effective until the end of the seventh
(7th) day following the date on which Executive signs this Agreement and during
that seven (7) day period, Executive may revoke this Agreement. By signing
below, Executive does not waive the seven (7) day period. In the event Executive
revokes this Agreement within such period, Executive shall return to Pliant any
and all sums paid to Executive by Pliant hereunder. Executive may consult with
an attorney or other advisor before signing this Agreement, and by signing
below, Executive acknowledges having had an opportunity to do so.
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IN WITNESS WHEREOF, the parties hereto have made and entered into this
Agreement as of the date first hereinabove set forth.
I HAVE CAREFULLY READ THIS AGREEMENT; I FULLY UNDERSTAND WHAT IT MEANS,
INCLUDING THE RELEASE SET FORTH IN SECTION 6(a), AND, MY ATTORNEY, IF
APPLICABLE, HAS REVIEWED THE AGREEMENT WITH ME AND EXPLAINED ITS CONTENTS TO ME.
REGARDLESS OF MY REPRESENTATION BY AN ATTORNEY OR DECISION NOT TO ENGAGE SUCH
REPRESENTATION, I FULLY UNDERSTAND THE AGREEMENT'S CONTENTS AND THE EFFECTS
THEREOF, AND I HAVE EXECUTED THE SAME OF MY OWN FREE WILL, WITHOUT ANY COERCION
BY PLIANT OR ANY RELEASED PARTY.
PLIANT:
Pliant Corporation
By:
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Name:
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Title:
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EMPLOYEE:
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Xxxx Xxxxxxx
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