Exhibit 10.5
AMENDMENT NO. 3 AND ACKNOWLEDGEMENT
dated as of March 25, 2003 (this
"Amendment"), to the STOCKHOLDERS' 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 certain of the stockholders
of the Company signatory thereto.
By executing and delivering this Amendment, the undersigned 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) Section 1 of the Original Agreement shall be amended by
inserting the following new definitions in their appropriate alphabetical order
therein:
(i) "2003 JPMP (BHCA) Commitment Agreement" means the
Securities Purchase Agreement dated as of March 25, 2003 between the
Company and X.X. Xxxxxx Partners (BHCA), L.P. ("JPMP (BHCA)"), as
amended, modified, supplemented or restated from time to time.
(ii) "2003 Securities Purchase Agreement" means the
Securities Purchase Agreement dated as of March 25, 2003 among the
Company and the Purchasers named therein, as amended, modified,
supplemented or restated from time to time.
(b) Section 3.1(d) of the Original Agreement shall be amended and
restated in its entirety to read as set forth below.
"(d) Notwithstanding anything to the contrary contained
herein, the Company may, in order to expedite the issuance of the
Offered Securities hereunder, issue all or a portion of the Offered
Securities to one or more Stockholders or their respective
Affiliates (the "Initial Subscribing Stockholders"), without
complying with the provisions of this Section 3.1, provided that
either (i) the Initial Subscribing Stockholders agree to offer to
sell to the other Stockholders who are accredited investors (as such
term is defined in Rule 501 under the Securities Act) (such
Stockholders hereinafter referred to as the "Other Accredited
Stockholders") their respective Percentage Ownerships of such
Offered Securities on the same terms and conditions as issued to the
Initial Subscribing
Stockholders and in a manner which provides the Other Accredited
Stockholders with rights substantially similar to the rights
outlined in Sections 3.1(b) and 3.1(c); provided, however, that the
purchase price payable by the Other Accredited Stockholders to the
Initial Subscribing Stockholders for the Offered Securities may
include (A) an amount equal to any accrued and unpaid dividends
thereon or (B) a reasonable rate of interest, in each case
calculated from the date such Initial Subscribing Stockholder
purchased such Offered Securities through the date of sale to the
Other Accredited Stockholders, or (ii) the Company shall offer to
sell an additional amount of Offered Securities to the Other
Accredited Stockholders only in an amount and manner which provides
the Other Accredited Stockholders with rights substantially similar
to the rights outlined in Sections 3.1(b) and 3.1(c). The Initial
Subscribing Stockholders or the Company, as applicable, shall offer
to sell such Offered Securities to the Other Accredited Stockholders
within ninety (90) days after the closing of the purchase of the
Offered Securities by the Initial Subscribing Stockholders."
(c) Section 3.1 of the Original Agreement shall be amended to insert
the following new paragraphs 3.1(e) and 3.1(f):
"(e) Notwithstanding anything to the contrary contained
herein, if the Company issues a Preemptive Offer Notice seeking the
commitment (an "Equity Commitment") of the Subscribing Stockholders
to purchase Offered Securities from time to time during a specified
period of time, then the Company shall not be obligated to issue a
Preemptive Offer Notice for any equity Securities issued upon, or in
connection with, the exercise of such Equity Commitment by the
Company and any Subscribing Stockholder who has not exercised its
rights under this Article III with respect to such Equity Commitment
shall have no such rights under this Article III with respect to any
equity Securities issued upon, or in connection with, the exercise
of such Equity Commitment. If after the issuance of a Preemptive
Offer Notice relating to an Equity Commitment (i) the terms or types
of Securities issuable in connection with such Equity Commitment are
materially altered or (ii) the number of Securities issuable in
connection with such Equity Commitment are significantly increased
or decreased, then the Company shall be required to issue a new
Preemptive Offer Notice to the Subscribing Stockholders in
accordance with the terms of this Agreement for such Equity
Commitment as revised.
(f) For the purposes of compliance with this Article III in
connection with a Preemptive Offer Notice issued in respect of an
Equity Commitment, (i) the term "Offered Securities" shall be
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deemed to include the maximum number of equity Securities which
could be issued pursuant to an Equity Commitment (without giving
effect to potential anti-dilution adjustments or stock splits, stock
dividends and similar transactions) as of the day that such Equity
Commitment shall be effective and (ii) any references to Offered
Securities or Refused Securities being offered, issued, purchased,
sold or disposed of (or permitted to be offered, issued, purchased,
sold or disposed of) shall include the incurrence and assumption of
commitments to offer, issue, purchase, sell or dispose of, such
Securities.
(d) Section 3.2 of the Original Agreement is amended to replace the
period at the end thereof with "; and" and insert the following new paragraph
3.2(g):
"(g) Securities of the Company which are issued, or may be
issued, pursuant to (i) the 2003 Securities Purchase Agreement and
(ii) the 2003 JPMP (BHCA) Commitment Agreement, provided that in
each case, such Securities (or any Securities issued in full or
partial replacement thereof) shall constitute Offered Securities and
be subject to the requirements of Section 3.1 as if such Securities
were issued pursuant to Section 3.1(d) on June 25, 2003.
Section 2. Acknowledgement and Waiver.
The Company and the Stockholders acknowledge that prior to June 25, 2003,
the provisions set forth in Section 2.2(d) (Certain Transfers), Section 2.3
(Co-Sale Rights) and Section 2.4 (Right of First Refusal) of the Original
Agreement shall not apply to the Transfer by JPMP (BHCA) of any Stockholder
Shares acquired by JPMP (BHCA) pursuant to the 2003 JPMP (BHCA) Commitment
Agreement or the 2003 Securities Purchase Agreement and the Stockholders hereby
waive their rights under Sections 2.2(d), 2.3 and 2.4 with respect to such
Stockholder Shares during such period.
Section 3. No other Amendments.
Except as modified by this, 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 Company, the Requisite Trust
Holders and the Requisite Investor Holders (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
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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. 3 to
the Stockholders' 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
