Exhibit 10.68
FINAL DRAFT
PLIANT CORPORATION
2004 RESTRICTED STOCK INCENTIVE PLAN
FORM OF RESTRICTED STOCK AGREEMENT
THIS RESTRICTED STOCK AGREEMENT (this "AGREEMENT") is dated as of [ ],
2004 between Pliant Corporation, a Utah corporation (the "CORPORATION") and [ ]
(the "EXECUTIVE").
WITNESSETH
WHEREAS, pursuant to the Pliant Corporation 2004 Restricted Stock Incentive
Plan (as amended, supplemented or otherwise modified from time to time, the
"PLAN"), the Corporation has granted to the Executive effective as of the date
hereof (the "AWARD DATE"), a right to participate in the Plan, upon the terms
and conditions set forth herein and in the Plan.
NOW THEREFORE, in consideration of services rendered and to be rendered by
the Executive, and the mutual promises made herein and the mutual benefits to be
derived therefrom, the parties agree as follows:
1. DEFINED TERMS. Capitalized terms used herein and not otherwise
defined herein shall have the meaning assigned to such terms in the Plan and/or
the Corporation's Fourth Amended and Restated Articles of Incorporation (as
amended, supplemented or otherwise modified from time to time, the "CHARTER").
2. ISSUANCE AND SALE OF RESTRICTED STOCK. Subject to the terms of this
Agreement and in reliance upon the representations and warranties, covenants and
agreements contained herein, the Corporation hereby issues and sells to the
Executive, and the Executive hereby purchases from the Corporation, an aggregate
of [ ] shares of Series B Redeemable Preferred Stock, par value $.01 per share
of the Corporation (the "RESTRICTED STOCK") on the date hereof at a per share
purchase price equal to $160 (the "PURCHASE PRICE"). The parties agree that the
fair value of one share of Restricted Stock on the date hereof is [$160].
3. CLOSING. The closing of the transactions contemplated hereby (the
"CLOSING") will take place simultaneously with the execution and delivery of
this Agreement. The Closing shall take place at the offices of [ ].
4. DELIVERIES AT THE CLOSING.
At the Closing:
(a) the Corporation shall deliver to the Executive a stock
certificate (the "ORIGINAL CERTIFICATE") representing the Restricted Stock
registered in the name of the Executive in the stock register of the
Corporation; and
(b) the Executive shall deliver a check for the aggregate
Purchase Price for all shares of Restricted Stock to the Corporation.
5. REPRESENTATIONS AND WARRANTIES.
(a) EXECUTIVE REPRESENTATIONS AND WARRANTIES. In connection with
the acquisition of the Restricted Stock hereunder, the Executive hereby
represents and warrants to the Corporation as of the date of this Agreement
that:
(i) the Executive has the full authority to execute
and deliver this Agreement and to consummate the transactions
contemplated hereby, and the execution, delivery and performance by
him of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by all necessary
action;
(ii) this Agreement has been duly and validly
executed and delivered by the Executive and this Agreement
constitutes a legal and binding obligation of the Executive,
enforceable against the Executive in accordance with its terms and
the execution, delivery and performance of this Agreement by the
Executive does not and will not conflict with, violate or cause a
breach of any agreement, contract or instrument to which the
Executive is a party or any judgment, order or decree to which the
Executive is subject;
(iii) the Executive understands that the Restricted
Stock has been issued pursuant to the Plan and is bound by the terms
and conditions contained in this Agreement as well as the Plan and
the Executive will not transfer the Restricted Stock acquired by him
hereunder, except in compliance with this Agreement and the Plan;
(iv) the Executive is acquiring the Restricted Stock
for his own account, for investment only and not with a view to, or
an intention of, the distribution thereof in violation of the
Securities Act of 1933, as amended or any successor federal law in
effect from time to time (the "SECURITIES ACT");
(v) the Executive has no need for liquidity in his
investment in the Restricted Stock and is able to bear the economic
risk of his investment in the Restricted Stock for an indefinite
period of time and understands that the Restricted Stock has not
been registered or qualified under the Securities Act or any
applicable state securities laws, by reason of the issuance of the
Restricted Stock in a transaction exempt from registration and
qualification requirements of the Securities Act or such state
securities laws and, therefore, cannot be sold unless subsequently
registered or qualified under the Securities Act or such state
securities laws or an exemption from registration or qualification
is available;
(vi) the Executive has been represented by counsel
and/or advisors in connection with the execution and delivery of
this Agreement and has had an opportunity to ask questions and
receive answers concerning the terms and conditions of the offering
of the Restricted Stock and the fair value of the Restricted Stock
and has had full access to or been provided with all such other
information concerning the Corporation as he has requested;
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(vii) the Executive has reviewed, or has had an
opportunity to review, a copy of the Plan (including all schedules
and exhibits referenced therein);
(viii) the Executive is an officer of the Corporation,
and has generally such knowledge and experience in financial and
business matters and with respect to investments in securities of
privately held companies such that the Executive is capable of
evaluating the risks and merits of his investment in the Restricted
Stock;
(ix) the Executive further understands that this
Agreement is made with the Executive in reliance upon his
representations to the Corporation contained in this SECTION 5.
(b) CORPORATION REPRESENTATIONS AND WARRANTIES. In connection
with the issuance and sale by the Corporation to the Executive of the Restricted
Stock, the Corporation represents and warrants that:
(i) it is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of
its incorporation, it has full corporate power and authority to
execute, deliver and perform this Agreement and to consummate the
transactions contemplated hereby, and the execution, delivery and
performance by it of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all
necessary corporate action;
(ii) the Corporation has all requisite power and
authority to execute and deliver this Agreement and any and all
instruments necessary or appropriate in order to effectuate fully
the terms and conditions of this Agreement, and the transactions
contemplated thereby. This Agreement has been duly authorized by all
necessary action on the part of the Corporation, has been duly
executed and delivered by the Corporation and constitutes the valid
and legally binding obligation of the Corporation, enforceable in
accordance with its terms and conditions, subject, as to
enforcement, to bankruptcy, insolvency, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles;
(iii) the authorization, issuance, sale and delivery
of the Restricted Stock, when issued in accordance with this
Agreement, will be duly authorized by all requisite action of the
Corporation's Board of Directors. The Restricted Stock, when issued
in accordance with this Agreement, will be validly issued and
outstanding, fully paid and nonassessable, with no personal
liability attaching to the ownership thereof, free and clear of any
liens and restrictions created by or through the Corporation
whatsoever other than those contained in the Plan and this
Agreement;
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6. VESTING OF RESTRICTED SHARES.
(a) On each of the next 48 monthly anniversaries of the date
hereof (each a "VESTING DATE"), 1/48 of the Restricted Stock shall vest,
provided that the Executive is employed by the Corporation as its [Insert
Title](1) pursuant to the Employment Agreement between the Executive and the
Corporation (as amended, supplemented or otherwise modified from time to time,
the "EMPLOYMENT AGREEMENT"), as of each such Vesting Date.
(b) Upon the consummation of a (i) Liquidation Event, (ii) a
Qualified Public Offering, (iii) the redemption by the Corporation of all of the
issued and outstanding shares of Series A Preferred Stock pursuant to Section
3.3(b)(iii) of the Charter (the "FINAL SERIES A REDEMPTION"), (iv) the
redemption by the Corporation of 80% or more of the aggregate number of shares
of Series A Preferred Stock outstanding at any time pursuant to Section
3.3(b)(iv) or (v) of the Charter (the "OPTIONAL SERIES A REDEMPTION"), and (v)
to the extent the Corporation consummates an Exchange, repayment of all of the
outstanding principal and interest of the Exchange Notes (the "EXCHANGE NOTE
REPAYMENT" and collectively with the Final Series A Redemption and the Optional
Series A Redemption, a "SERIES A VESTING EVENT") provided that, in each case,
the Executive is employed by the Corporation as its President and Chief
Executive Officer pursuant to the Employment Agreement following the date hereof
to the date of the consummation of such Liquidation Event, Qualified Public
Offering and/or Series A Vesting Event, all Restricted Stock held by the
Executive, which shall then be Unvested Stock, shall automatically vest as of
the date of the consummation of the Liquidation Event, Qualified Public Offering
and/or the Series A Vesting Event.
(c) Shares of Restricted Stock which have become vested hereunder
are referred to herein as "VESTED STOCK" and all other shares of Restricted
Stock are referred to herein as "UNVESTED STOCK." Shares of Restricted Stock
that are Unvested Stock do not have any rights conferred upon the Restricted
Stock under the Charter, including without limitation, the right to receive any
payment or other consideration and conversion or redemption rights thereunder,
until such time as they became Vested Stock in accordance with this Agreement
and the Executive hereby waives all of the rights in respect thereof; provided,
however, that so long as the Executive is employed by the Corporation as its
President and Chief Executive Officer pursuant to the Employment Agreement, the
Executive shall be entitled to exercise the voting rights with respect to the
Vested Stock and the Unvested Stock. The Executive hereby agrees that to the
extent that he shall have received any payment or other consideration relating
to, or in respect of, the Unvested Stock, the Executive shall be deemed to
receive such payment or other consideration as agent for the Corporation and
shall immediately upon receipt of such payment or other consideration deliver
such payment or other consideration to the Corporation.
(d) To the extent that any dividends would be payable with
respect to any Restricted Stock which is Unvested Stock pursuant to Section
3.3(c)(iii) if such Unvested Stock were Vested Stock at the time of such
dividend, such dividends which would have been payable with respect to such
Unvested Stock were it Vested Stock shall be held in trust by the Corporation,
and shall be paid with respect to such shares of Unvested Stock at such time,
but
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(1) To be revised if no Employment is entered between the Company and the
Executive and appropriate definitions to be inserted relating thereto.
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only in the event that, such shares of Unvested Stock become Vested Stock. At
such time as such shares of Unvested Stock become subject to repurchase by the
Corporation pursuant to Section 8 hereof, such dividends shall be forfeited and
no longer payable under any circumstances.
7. TERMINATION OF EMPLOYMENT IN CONNECTION WITH A LIQUIDATION EVENT.
(a) If the Executive's employment with the Corporation is
terminated pursuant to a Termination Without Cause or a Resignation for Good
Reason (as such terms are defined in the Employment Agreement) and a Liquidation
Event or Qualified Public Offering occurs prior to the first anniversary of the
Termination Date (as such term is defined in the Employment Agreement), then all
Restricted Stock held by the Executive which shall then be Unvested Stock shall
automatically vest as of the date of the consummation of such Liquidation Event
or Qualified Public Offering.
(b) If the Executive's employment with the Corporation is
terminated pursuant to a Termination Without Cause or a Resignation for Good
Reason (as such terms are defined in the Employment Agreement) and a Series A
Vesting Event occurs within 90 days following the Termination Date (as such term
is defined in the Employment Agreement), then all Restricted Stock held by the
Executive which shall then be Unvested Stock shall automatically vest as of the
date of the consummation of such Series A Vesting Event.
(c) If the Executive's employment with the Corporation is
terminated as a result of the Executive's Death or Disability (as such terms are
defined in the Employment Agreement) and a Liquidation Event or a Qualified
Public Offering is consummated within 90 days following such Termination Date
(as such term is defined in the Employment Agreement), then all Restricted Stock
held by the Executive which shall then be Unvested Stock shall automatically
vest as of the date of the consummation of such Liquidation Event or Qualified
Public Offering.
8. EFFECT OF TERMINATION OF EMPLOYMENT; REPURCHASE OF UNVESTED STOCK.
(a) REPURCHASE OF UNVESTED STOCK. The Executive's shares of
Unvested Stock, to the extent such shares have not become Vested Stock upon the
Termination Date (as defined in the Employment Agreement), may, at any time, and
from time to time on or after the Termination Date, at the Corporation's option,
be repurchased by the Corporation at a price per share equal to the Purchase
Price. The Corporation, at its option, may assign or transfer such repurchase
right to any affiliate or assignee of the Corporation. On and after the
Termination Date (as defined in the Employment Agreement), the Executive shall
have no rights in, and hereby forfeits any and all rights the Executive may have
with respect to, the Unvested Stock (except pursuant to Section 7 if such
Unvested Stock shall become Vested Stock in accordance therewith) if any, and
hereby assigns, transfers and grants a lien and security interest to the
Corporation in the Unvested Stock and any rights he may have with respect
thereto. In order to preserve the Executive's right to accelerated vesting of
the Unvested Stock in accordance with Section 7, if the Executive's employment
as [Insert Title] pursuant to the Employment Agreement is terminated (i)
pursuant to a Termination Without Cause or a Resignation for Good Reason (as
such terms are defined in the Employment Agreement), the Corporation shall not
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repurchase the Executive's shares of Unvested Stock prior to the first
anniversary of the Termination Date (as defined in the Employment Agreement), or
(ii) pursuant to a termination as a result of a death or Disability (as such
term is defined in the Employment Agreement), the Corporation shall not
repurchase the Executive's shares of Unvested Stock prior to the 90 days
following the Termination Date (as defined in the Employment Agreement),
provided that, in each case, such Unvested Stock shall never become Vested Stock
except in accordance with Section 7.
(b) The Corporation's right pursuant to this Agreement to
repurchase Restricted Stock from the Executive shall be limited to the
repurchase of Unvested Stock. Termination of the Executive's Employment with the
Corporation shall in no way affect any of the Executive's rights of ownership of
the Vested Stock. Immediately following the Termination Date (as defined in the
Employment Agreement) and upon delivery of the Original Certificate to the
Corporation by the Executive, the Corporation shall, in exchange for the
Original Stock Certificate, deliver to the Executive, (i) a stock certificate
(the "VESTED STOCK CERTIFICATE") representing the number of shares of Vested
Stock held by the Executive as of the Termination Date (as defined in the
Employment Agreement) and (ii) a stock certificate (the "UNVESTED STOCK
CERTIFICATE") representing the number of shares of Unvested Stock held by the
Executive as of the Termination Date (as defined in the Employment Agreement).
In the event that such shares of Unvested Stock become Vested Stock pursuant to
Section 7 above, the Corporation shall, in exchange for the Unvested Stock
Certificate, deliver to the Executive either a stock certificate representing
such shares of Vested Stock or the Mandatory Redemption Price for such shares,
as the case may be. In addition to any other legends placed upon the
certificates representing Restricted Stock, certificates representing Unvested
Stock shall have the following legend:
"THE SHARES OF STOCK EVIDENCED HEREBY ARE UNVESTED STOCK AS DEFINED IN THE
RESTRICTED STOCK AGREEMENT DATED AS OF [ ] __, 2004 BETWEEN THE CORPORATION AND
THE EXECUTIVE NAMED THEREIN (THE "RESTRICTED STOCK AGREEMENT") AND, EXCEPT TO
THE EXTENT PROVIDED IN SUCH RESTRICTED STOCK AGREEMENT, THE HOLDER OF SUCH
SHARES IS NOT ENTITLED TO ANY INTEREST OR RIGHTS PROVIDED THEREIN UNTIL SUCH
TIME AS THEY BECOME VESTED STOCK IN ACCORDANCE WITH THE RESTRICTED STOCK
AGREEMENT"
(c) In the event that the any capital stock is to be repurchased
pursuant to this Section 8 or in order to effectuate the Drag Along Rights
contained in the Plan, the Executive and his successors, assigns or
representatives shall take (at the Corporation's expense) all steps necessary
and desirable to obtain all required third-party, governmental and regulatory
consents and approvals and take all other actions necessary and desirable to
facilitate the consummation of such repurchases or such Drag Along Rights, as
the case may be, in a timely manner. The Executive shall promptly return to the
Corporation share certificates representing shares of the capital stock
repurchased pursuant to this Section 8.
9. CONVERSION UPON A QUALIFIED PUBLIC OFFERING. In the event an
automatic conversion of the Restricted Stock occurs upon a Qualified Public
Offering pursuant to Article III, Section 3.3(c)(iv) of the Charter, the
Executive shall take the same necessary and desirable actions in connection with
the consummation of the Qualified Public Offering as the other
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stockholders are required to take in connection therewith, including without
limitation, the execution and delivery of any underwriting, custody, lock-up or
similar agreements.
10. STOCK CERTIFICATES.
(a) CERTIFICATES TO BE HELD BY CORPORATION; LEGEND. Any
certificates representing Restricted Stock shall bear the following legend:
"THE OWNERSHIP OF THIS CERTIFICATE AND THE SHARES OF STOCK EVIDENCED HEREBY
AND ANY INTEREST THEREIN IS SUBJECT TO SUBSTANTIAL RESTRICTIONS ON TRANSFER
UNDER AN AGREEMENT ENTERED INTO BETWEEN THE REGISTERED OWNER AND PLIANT
CORPORATION. A COPY OF SUCH AGREEMENT IS ON FILE IN THE OFFICE OF THE
SECRETARY OF PLIANT CORPORATION."
(b) STOCK POWER; POWER OF ATTORNEY. Concurrent with the execution
and delivery of this Agreement, the Executive shall deliver to the Corporation
an executed stock power in the form attached hereto as EXHIBIT A, in blank. The
Executive, by acceptance of the Restricted Stock Award under the Plan, shall be
deemed to appoint, and does so appoint by execution of this Agreement, the
Corporation and each of its authorized representatives as the Executive's
attorney(s)-in-fact to:
(i) effect any transfer of, or transaction with
respect to, capital stock of the Corporation pursuant to or
referenced in Section hereof (including any Drag Along Rights);
(ii) to effect a conversion of the Restricted Stock
upon a Qualified Public Offering pursuant to Article III, Section
3.3(c)(iv) of the Charter; and
(iii) to execute such documents as the Corporation
deems necessary or advisable in connection with any such transfer or
transaction or conversion.
11. TAX ELECTION. THE EXECUTIVE ACKNOWLEDGES THAT IT IS THE EXECUTIVE'S
SOLE RESPONSIBILITY, AND NOT THE CORPORATION'S, TO DECIDE IF AN ELECTION UNDER
SECTION 83(B) OF THE INTERNAL REVENUE CODE SHOULD BE MADE AND TO FILE TIMELY
SUCH ELECTION, EVEN IF THE EXECUTIVE REQUESTS THE CORPORATION OR ITS
REPRESENTATIVES TO MAKE THIS FILING ON HIS BEHALF. The Executive understands
that under applicable law such election must be filed with the Internal Revenue
Service (the "IRS") within thirty (30) days after any acquisition of Restricted
Stock to be effective. If the Executive files an effective election, the excess
of the fair value of the Restricted Stock (which the IRS may assert is different
from the fair value determined by the parties) covered by such election over the
amount paid by the Executive for the Restricted Stock shall be treated as
ordinary income received by the Executive, and the Corporation shall withhold
from the Executive's compensation all amounts required under applicable law. If
the Executive does not file an effective election, future appreciation on the
Restricted Stock will generally be taxable as ordinary income when such
Restricted Stock
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vests pursuant to this Agreement. The foregoing is merely a brief summary of
complex tax regulations, and therefore, the Executive is strongly advised to
consult with his own tax advisors.
12. NOTICES. Any notice to be given under the terms of this Agreement
shall be in writing and addressed to the Corporation at its principal office
located at 0000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000 to the
attention of the Chief Financial Officer and to the Executive at the address
given beneath the Executive's signature hereto, or at such other address as
either party may hereafter designate in writing to the other.
13. PLAN. The Restricted Stock and all rights of the Executive with
respect thereto are subject to, and the Executive agrees to be bound by, all of
the terms and conditions of the provisions of the Plan, incorporated herein by
reference, to the extent such provisions are applicable to Restricted Stock
granted to Eligible Persons (as defined in the Plan). The Executive acknowledges
receipt of a copy of the Plan, which is made a part hereof by this reference,
and agrees to be bound by the terms thereof. Unless otherwise expressly provided
in other Sections of this Agreement, provisions of the Plan that confer
discretionary authority on the Administrator do not (and shall not be deemed to)
create any rights in the Executive unless such rights are expressly set forth
herein or are otherwise in the sole discretion of the Administrator so conferred
by appropriate action of the Administrator under the Plan after the date hereof.
Notwithstanding the foregoing, nothing contained herein shall limit the
discretionary authority of the Administrator pursuant to Section 3.2(d)-(g),
(i)-(k) and Section 6 and 7 of the Plan, except to the extent the exercise of
such authority materially adversely affects the rights of the Executive
hereunder.
14. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties and agreements contained herein shall survive the
consummation of the transactions contemplated hereby and the termination of this
Agreement indefinitely.
15. ENTIRE AGREEMENT; AMENDMENT. This Restricted Stock Agreement and the
Plan together constitute the entire agreement and supersede all prior
understandings and agreements, written or oral, of the parties hereto with
respect to the subject matter hereof. The provisions of this Agreement may be
amended, modified and waived only with the prior written consent of the
Corporation and the Executive and no course of conduct or failure or delay in
enforcing the provisions of this Agreement shall be construed as a waiver of
such provisions or affect the validity, binding effect or enforceability of this
Agreement or any provision hereof. Notwithstanding anything to the contrary
contained in the Plan or the Charter, any amendment, modification or waiver to
the terms of the Restricted Stock contained in the Charter and Plan that would
materially adversely affect the Executive's rights therein or herein or which
materially adversely affects the rights or priorities of the Restricted Stock,
shall not be effective against the Executive without the prior written consent
of the Executive. Notwithstanding the foregoing, nothing contained herein shall
limit the Corporation's ability to make amendments, modifications or waivers to
the terms of the Plan or Charter to the extent the requirements set forth in the
Plan and the Charter regarding such amendments, modifications and waivers have
been met.
16. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION,
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PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT.
17. REMEDIES. Each of the parties to this Agreement shall be entitled to
enforce its rights under this Agreement specifically to recover damages and
costs (including reasonable attorneys' fees and expenses) for any breach of any
provision of this Agreement and to exercise all other rights existing in its
favor. The parties hereto agree and acknowledge that money damages may not be an
adequate remedy for any breach of the provisions of this Agreement and that any
party hereto may in its sole discretion apply to any court of law or equity of
competent jurisdiction for specific performance and/or other injunctive relief
(without posting any bond or deposit) in order to enforce or prevent any
violations of this Agreement.
18. COUNTERPARTS. This Agreement may be executed simultaneously in any
number of counterparts, each of which shall be deemed an original but all of
which together shall constitute one and the same instrument.
19. SECTION HEADINGS. The section headings of this Agreement are for
convenience of reference only and shall not be deemed to alter or affect any
provision hereof.
20. GOVERNING LAW. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York without regard to
conflict of law principles thereunder.
* * * * *
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IN WITNESS WHEREOF, the Corporation has caused this Agreement to be
executed on its behalf by a duly authorized officer and the Executive has
hereunto set his hand as of the date and year first above written.
PLIANT CORPORATION
By:
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Name:
Title:
EXECUTIVE
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SIGNATURE
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PRINT NAME
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ADDRESS
EXHIBIT A
STOCK POWER
FOR VALUE RECEIVED and pursuant to that certain Restricted Stock Award
Agreement between Pliant Corporation, a Utah corporation (the "CORPORATION"),
and _______________________ (the "EXECUTIVE") dated as of _____________________,
2004, the Executive, hereby sells, assigns and transfers to the Corporation, an
aggregate ____________ shares of Series B Redeemable Preferred Stock of the
Corporation, standing in the Executive's name on the books of the Corporation
and represented by stock certificate number(s) _________________________________
to which this instrument is attached, and hereby irrevocably constitutes and
appoints _______________________________________________________________________
as his or her attorney in fact and agent to transfer such shares on the books of
the Corporation, with full power of substitution in the premises.
Dated ___________, ________
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SIGNATURE
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PRINT NAME
(INSTRUCTION: PLEASE DO NOT FILL IN ANY BLANKS OTHER THAN THE SIGNATURE LINE.
THE PURPOSE OF THE ASSIGNMENT IS TO ENABLE THE CORPORATION TO EXERCISE CERTAIN
RIGHTS SET FORTH IN THE RESTRICTED STOCK AWARD AGREEMENT AND CHARTER WITHOUT
REQUIRING ADDITIONAL SIGNATURES ON THE PART OF THE INDIVIDUAL.)
EXHIBIT B
SPOUSAL ACKNOWLEDGMENT
The undersigned spouse of the Executive has read and hereby approves the
foregoing Restricted Stock Agreement. In consideration of the Corporation's
granting the Executive the right to acquire the Restricted Stock in accordance
with the terms of such Agreement, the undersigned hereby agrees to be
irrevocably bound by all the terms of such Agreement and the Plan.
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Spouse of Executive
EXHIBIT C
ELECTION TO INCLUDE STOCK IN GROSS
INCOME PURSUANT TO SECTION 83(B) OF THE
INTERNAL REVENUE CODE
The undersigned purchased [______________] shares of Series B Redeemable
Preferred Stock, no par value per share (the "SERIES B PREFERRED STOCK"), of
Pliant Corporation (the "CORPORATION") pursuant to a Restricted Stock Agreement
(the "RESTRICTED STOCK AGREEMENT") dated as of [________, _______,] between the
Corporation and the undersigned. Under certain circumstances, the Corporation
has the right of forfeiture of the unvested Series B Preferred Stock from the
undersigned, upon the termination of his employment with the Corporation. Hence,
the Series B Preferred Stock is subject to a substantial risk of forfeiture and
is nontransferable (within the meaning of Treasury Regulation Section
1.83-3(d)). The undersigned desires to make an election under Section 83(b) of
the Internal Revenue Code ("CODE") to have the Series B Preferred Stock taxed at
the time the undersigned purchased the Series B Preferred Stock.
Therefore, pursuant to Code Section 83(b) and Treasury Regulation Section
1.83-2 promulgated thereunder, the undersigned hereby makes an election, with
respect to the Series B Preferred Stock, to report as taxable income for the
undersigned's taxable year ended [ ] the excess (if any) of the Series A
Preferred Stock's fair market value on [ ] over the purchase price thereof.
The following information is supplied in accordance with Treasury
Regulation Section 1.83-2(e):
The name, address and social security number of the undersigned:
A description of the property with respect to which the election is being
made: [___________] shares of Series B Preferred Stock, no par value per share.
The date on which the property was transferred: [ ] The taxable year
for which such election is made: The undersigned's taxable year ended [ ].
The restrictions to which the property is subject:
All or any portion of the shares of Series B Preferred Stock which have not
"vested" are subject to repurchase by the Corporation in the event the
undersigned ceases to be or is no longer employed by the Company and for any
reason whatsoever and in such event the purchase price for each share of Series
B Preferred Stock which has not "vested" subject to repurchase will be [$ ]
per share.
The Series B Preferred Stock will "vest" on a monthly basis during the 4
years after initial issuance during the time that the undersigned remains
employed by the Corporation and shall vest upon a liquidation event, a qualified
public offering, the redemption of the Corporation's Series A Preferred Stock or
repayment of the Corporation's Exchange Notes, as applicable, if the undersigned
is so employed on the effective date thereof and, in certain circumstances, may
vest within one year after the termination of such employment.
The fair value on [ ] of the property with respect to which the
election is being made, determined without regard to any lapse restrictions:
$[_______].
The amount paid for such property: $[_______].
A copy of this election has been furnished to the Secretary of the
Corporation pursuant to Treasury Regulations Section 1.83-2(e)(7).
Dated: [________________, _________]
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Executive
This election must be filed with the Internal Revenue Service Center with
which taxpayer files his or her Federal income tax returns and must be made
within thirty (30) days after the date hereof. This filing should be made by
registered or certified mail, return receipt requested. The Executive must
retain two (2) copies of the completed form for filing with his Federal and
state tax returns for the current tax year and an additional copy of his
records.
