Exhibit 10.63
CONSULTING AGREEMENT dated
as of August 24, 2003 (this "Agreement"), between
PLIANT CORPORATION, a Utah corporation
(the "Company"), and EDWARD LAPEKAS (the
"Consultant").
WHEREAS, the Company and its subsidiaries are engaged in 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 (including matters incidental and relating thereto, the
"Business").
WHEREAS, the Consultant has experience in matters related to the
Business.
WHEREAS, in order to induce Consultant to provide consulting services
to the Company, the Company desires to provide Consultant with the compensation
on the terms and conditions set forth in this Agreement.
WHEREAS, the Consultant is willing to perform consulting services for
the Company on the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as set forth below:
Section 1. Engagement and Services.
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(a) Subject to the terms and conditions of this Agreement, the
Company shall engage the Consultant as its interim Chief Executive Officer.
During the Engagement Period (as defined herein), the Consultant shall devote
substantially all of his business time, attention and energies to the Business.
The Consultant shall work a minimum of five days per week until otherwise
requested by the Company at any time. The Consultant shall report to the Board
and shall perform such duties and services (the "Services") consistent with such
position and as may reasonably be requested by the Board, including, without
limitation, (i) assisting in the Board's effort to maximize the value of the
Company, including working with the executive management team to ensure that the
Company meets its strategic objectives during the Engagement Period, (ii)
assisting in the recruitment and retention of senior level management (including
a permanent chief executive officer for the Company) acceptable to the Board and
(iii) acting as the senior representative of the Company during the Engagement
Period with key suppliers, key customers, the financial community, and other
constituencies.
(b) During the Engagement Period, the Consultant shall not be engaged
in any other business activity which, in the reasonable judgment of the Board,
would conflict with the ability of Consultant to perform his duties under this
Agreement. Notwithstanding the foregoing, the Consultant shall not be required
to resign from the board of directors of Silgan Holdings or from the advisory
board of Family Capital Growth Partners. The Board's approval shall not be
required if the Consultant seeks to perform inconsequential services without
direct cash remuneration or compensation therefor in connection with the
management of personal investments or in connection with the performance of
charitable and civic activities; provided,
that such activities do not violate or contravene the provisions of this
Section 1 or Section 5 hereto.
(c) The Consultant hereby acknowledges that his performance of the
Services may require the Consultant to perform the Services at a variety of
locations which shall be mutually acceptable to the Consultant and the Company;
provided, however, that the Consultant shall operate primarily from the
Company's Schaumberg, Illinois, facility and that the Consultant shall agree to
travel, as requested by the Company, on reasonable prior notice.
(d) Any reference to the "Board" in this Agreement shall mean the
Board of Directors of the Company, excluding the Consultant if he is a member
thereof at such time.
Section 2. Term and Termination.
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(a) This Agreement and the term of consulting (the "Engagement
Period") shall commence and be effective on the date hereof and shall terminate
on the earlier of (x) March 30, 2004, and (y) the date specified in a written
notice from the Company or the Consultant to the other party of its intent to
terminate this Agreement, which date shall not be less than thirty (30) days
from the date of such notice.
(b) Upon the termination of the Engagement Period, the Consultant
shall be deemed to have automatically resigned as an officer, manager, member
and director of the Company (other than as a director of the Company pursuant to
the Consultant's appointment as a director pursuant to Section 4.1(a)(ii) of the
Stockholders' Agreement dated as of May 31, 2000, as amended from time to time,
among the Company and the stockholders of the Company signatory thereto) and its
subsidiaries and the Consultant shall execute and deliver to the Company
documentation evidencing such resignations.
Section 3. Fees and Expenses.
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(a) Consulting Fees. During the Engagement Period, the Company shall
pay to the Consultant a per diem consulting fee equal to $2,000 (the "Consulting
Fee"), or portion thereof computed on a pro-rata basis, for each day that the
Consultant provides Services to the Company or its subsidiaries. During the
Engagement Period, accrued Consulting Fees shall be paid by the Company in
accordance with the Company's normal payroll practices as if the Consultant were
an employee of the Company.
(b) Bonus Compensation. During the Engagement Period, the Consultant
shall be eligible to receive bonus compensation (the "Bonus Compensation") based
on the Company's MIP plan. During the Engagement Period, the Bonus Compensation
payable to the Consultant pursuant to the Company's MIP plan shall equal the
product of (x) $2,000 for each day that the Consultant provides Services to the
Company or its Subsidiaries and (y) the applicable percentage specified in the
Company's MIP plan for which the economic performance target for the Company's
chief executive officer has been satisfied as of the test dates identified in
such plan. Accrued Bonus Compensation, if any, shall be paid by the Company in
accordance with the Company's MIP plan.
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(c) Expenses. During the Engagement Period, the Company shall
reimburse Consultant for (i) reasonable living expenses in Schaumberg, Illinois,
or the surrounding area in an amount to be determined by the Board acting in
good faith after consultations with the Consultant, (ii) reasonable travel
expenses (including travel to and from the Consultant's primary residence) and a
monthly automobile allowance, and (iii) all other reasonable and necessary
expenses and other disbursements incurred by him for or on behalf of the Company
in connection with the performance of the Services (each of (i), (ii) and (iii),
an "Expenditure").
(d) Termination Payments. Upon termination of the Engagement Period,
Consultant only shall be entitled to receive any earned and unpaid Consulting
Fees and any unreimbursed Expenditures up to the date of termination.
Section 4. Independent Contractor.
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(a) The Consultant shall perform the Services as an independent
contractor to the Company.
(b) The Consultant shall not make any claim under this Agreement or
otherwise against the Company or its subsidiaries for workers' compensation,
unemployment insurance compensation, or life insurance, social security
benefits, disability insurance benefits or any other benefits. The Consultant is
solely responsible for his income and other taxes and neither the Company nor
any of its subsidiaries shall withhold on behalf of the Consultant any sums for
income tax, unemployment insurance or social security pursuant to any law or
requirement of any government agency including, without limitation, unemployment
tax, federal, state or foreign income tax, federal social security (FICA)
payments and disability insurance taxes. The Consultant shall make such tax
payments as may be required by applicable law and shall indemnify, defend and
hold the Company and its subsidiaries harmless from any liability the Company
and its subsidiaries may incur as a consequence of the Consultant's failure to
make such tax payment(s). Notwithstanding anything to the contrary contained
herein, during the Engagement Period the Consultant shall be entitled to
coverage as an officer and director under the Company's director and officer
liability insurance policies.
(c) Neither the Company nor its subsidiaries shall be liable to the
Consultant for any accidents, injuries or acts committed by the Consultant
during the performance of any Services under this Agreement. The Consultant is
solely responsible for maintaining appropriate policies of insurance, at his
sole discretion, to cover any such contingencies.
Section 5. Disclosure of Information.
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(a) From and after the date hereof, the Consultant shall not use or
disclose to any Person, except as required in connection with the performance of
the Services and in compliance with the terms of this Agreement and as required
by law or judicial process, any Confidential Information (as hereinafter
defined), for any reason or purpose whatsoever, nor shall the Consultant make
use of any Confidential Information for the Consultant's purposes or for the
benefit of any Person except the Company or any subsidiary thereof. As used in
this Agreement, "Person" shall be construed as broadly as possible and shall
include an individual or natural person, a partnership (including a limited
liability partnership), a corporation, an
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association, a joint stock company, a limited liability company, a trust, a
joint venture, an unincorporated organization and a governmental authority.
(b) For purposes of this Agreement, "Confidential Information" shall
mean (i) the Intellectual Property Rights (as hereinafter defined) of the
Company and its subsidiaries and (ii) all other information of a proprietary or
confidential nature relating to the Company or its subsidiaries, or the business
or assets of the Company or its subsidiaries, including, without limitation,
books, records, customer and registered user lists, vendor lists, supplier
lists, customer agreements, vendor agreements, supplier agreements, incentive
and commission program information, distribution channels, pricing information,
cost information, marketing plans, strategies, forecasts, financial statements,
budgets and projections, other than information which is generally within the
public domain at the time of the receipt thereof by the Consultant or at the
time of use or disclosure of such Confidential Information by the Consultant
other than as a result of the breach by the Consultant of the Consultant's
obligations hereunder.
(c) As used herein, the term "Intellectual Property Rights" means all
intellectual property rights, including, without limitation, patents, patent
applications, patent rights, trademarks, trademark applications, trade names,
service marks, service mark applications, copyrights, copyright applications,
know-how, certificates of public convenience and necessity, franchises,
licenses, trade secrets, proprietary processes and formulae, production methods,
inventions, development tools, marketing materials, instructions, confidential
information, trade dress, logos and designs and all documentation and media
constituting, describing or relating to the foregoing, including, without
limitation, manuals, memoranda and records.
Section 6. Nondisparagement.
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(a) The Consultant agrees that he shall not, directly or indirectly,
make or cause others to make any statement or take any action that could
reasonably be construed to be a false or misleading statement of fact or a
libelous, slanderous or disparaging statement of or concerning the Company, any
subsidiary or any of their respective affiliates, businesses or any of its
respective employees, officers, directors, agents, consultants, members or
stockholders.
(b) The Company agrees that it shall not, directly or indirectly,
make or cause others to make any statement or take any action that could
reasonably be construed to be a false or misleading statement of fact or a
libelous, slanderous or disparaging statement of or concerning the Consultant.
Section 7. Right to Inventions.
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The Consultant shall promptly disclose, grant and assign to the
Company for its sole use and benefit any and all inventions, improvements and
technical information reasonably relating to the Business (collectively, the
"Inventions") which the Consultant may develop or acquire during the Engagement
Period (whether or not during usual business hours) in his performance of the
Services, together with all patent applications, letters patent, copyrights and
reissues thereof that may at any time be granted for or upon the Inventions. In
connection therewith:
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(a) the Consultant recognizes and agrees that the Inventions shall be
the sole property of the Company, and the Company shall be the sole owner of all
patent applications, letters patent, copyrights and reissues thereof that may at
any time be granted for or on the Inventions;
(b) the Consultant hereby assigns to the Company any rights the
Consultant may have in or acquire to the Inventions;
(c) the Consultant shall, at the expense of the Company, promptly
execute and deliver such applications, assignments, descriptions and other
instruments as may be necessary or proper in the opinion of the Company to vest
title to the Inventions and any patent applications, patents, copyrights,
reissues or other proprietary rights related thereto in the Company and to
enable it to obtain and maintain the entire right and title thereto throughout
the world;
(d) the Consultant recognizes and agrees that the Inventions to the
extent copyrightable shall constitute works for hire under the copyright laws of
the United States; and
(e) the Consultant shall render to the Company, at the Company's
expense, all such assistance as it may require in the prosecution of
applications for such patents, copyrights, reissues or other proprietary rights,
in the prosecution or defense of interferences which may be declared involving
any said applications, patents, copyrights or other proprietary rights and in
any litigation in which the Company may be involved relating to the Inventions.
Section 8. Delivery of Materials Upon Termination of Engagement.
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The Consultant shall deliver to the Company at the termination of the
Engagement Period, or at any time upon the Company's request, all memoranda,
notes, plans, records, reports, computer files, software and other documents and
data (and copies thereof existing in any media) relating to the Confidential
Information, Inventions or the Business he may then possess or have under his
control regardless of the location or form of such material and, if requested by
the Company, will provide the Company with written confirmation that all such
materials have been delivered to the Company. Further, at the termination of the
Engagement Period, the Consultant shall (a) vacate the premises provided by the
Company for his use that are leased in the name of the Company or any of its
subsidiaries, (b) return any vehicle provided by the Company for his use that is
leased in the name of the Company or any of its subsidiaries and (c) return any
other property of the Company or its subsidiaries that is in his possession.
Section 9. Representation and Warranties.
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(a) The Consultant hereby represents and warrants to the Company that
(i) the execution, delivery and performance of this Agreement by the Consultant
does not and will not conflict with, breach, violate or cause a default under
any agreement, contract or instrument to which the Consultant is a party or any
judgment, order or decree to which the Consultant is subject, (ii) the
Consultant is not a party to or bound by (x) any employment agreement,
consulting agreement, or similar agreement, or (y) any non-compete agreement,
confidentiality agreement or similar agreement with any other Person that is
inconsistent with the provisions of
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this Agreement and (iii) upon the execution and delivery of this Agreement by
the Company and the Consultant, this Agreement will be a valid and binding
obligation of the Consultant.
(b) The Company hereby represents and warrants to the Consultant that
(i) this Agreement has been duly authorized by all necessary corporate action on
the part of the Company, (ii) the execution, delivery and performance of this
Agreement by the Company does not and will not conflict with, breach, violate or
cause a default under any agreement, contract or instrument to which the Company
is a party or any judgment, order or decree to which the Company is subject, and
(iii) upon the execution and delivery of this Agreement by the Company and the
Consultant, this Agreement will be a valid and binding obligation of the
Company.
Section 10. Miscellaneous Provisions.
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(a) Stockholders' Agreement. Section 4.1(a) (the "CEO Nomination
Provision") of the Stockholders' Agreement dated May 31, 2000, among the Company
and the other parties thereto (as amended, the "Stockholders' Agreement"),
provides that one representative to the Board shall be the "Chief Executive
Officer" of the Company. Notwithstanding anything to the contrary contained in
this Agreement or the CEO Nomination Provision, the designation of the
Consultant as interim "Chief Executive Officer" hereunder shall not give the
Consultant the right to serve as a member of the Board and the Consultant's
service as a member of the Board shall only be as a designee of the Requisite
Trust Holders (as defined in the Stockholders' Agreement).
(b) Amendment; Waiver and Release. Except as otherwise provided
herein, no modification, amendment or waiver of any provision of this Agreement
shall be effective unless such modification, amendment or waiver is approved in
writing by each of the parties hereto. The failure of any party to enforce any
of the provisions of this Agreement shall in no way be construed as a waiver of
such provisions and shall not affect the right of such party thereafter to
enforce each and every provision of this Agreement in accordance with its terms.
The waiver by any party of a breach of any provision shall not operate or be
construed as a waiver of any subsequent breach by any party.
(c) Severability. It is the desire and intent of the parties that the
provisions of this Agreement be enforced to the fullest extent permissible under
the law and public policies applied in each jurisdiction in which enforcement is
sought. Accordingly, in the event that any provision of this Agreement would be
held in any 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 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.
(d) Entire Agreement. Except as otherwise expressly set forth herein,
this document and the other documents referred to herein constitute the complete
agreement and understanding among the parties hereto with respect to the subject
matter hereof and thereof and
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supersede and preempt any prior understandings, agreements or representations by
or among the parties, written or oral, which may have related to the subject
matter hereof in any way.
(e) Successors and Assigns. This Agreement shall bind and inure to
the benefit of and be enforceable by the Company and parties hereto and their
respective successors and assigns; provided that the Consultant may not assign
his rights or obligations under this Agreement to any other Person without the
prior written consent of the Company; provided, further, that the Company may,
without the prior written consent of the Consultant, assign its rights or
obligations under this Agreement to any of its subsidiaries. Except as otherwise
expressly provided herein, this Agreement shall not confer any rights or
remedies upon any Person other than the parties hereto and their respective
successors and permitted assigns.
(f) Counterparts and Facsimile Execution. This Agreement 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 each of the parties and delivered (by facsimile or otherwise) to
the other party, it being understood that the parties need not sign the same
counterpart. Any counterpart or other signature hereupon delivered by facsimile
shall be deemed for all purposes as constituting good and valid execution and
delivery of this Agreement by such party.
(g) Remedies. Because the Consultant's services are unique, and
because the Consultant has access to Confidential Information, the parties
hereto agree that money damages would be an inadequate remedy for any breach of
this Agreement. In event of any breach or threatened breach of this Agreement, a
party or its successors or permitted assigns shall be entitled to specific
performance and/or injunctive or other relief in order to enforce, or prevent
any violations of, the provisions hereof (without posting a bond or other
security). All remedies hereunder are cumulative, are in addition to any other
remedies provided for by law and may, to the extent permitted by law, be
exercised concurrently or separately, and the exercise of any one remedy shall
not be deemed to be an election of such remedy or to preclude the exercise of
any other remedy.
(h) Notices. All notices or other communications pursuant to this
Agreement shall be in writing and shall be deemed to be sufficient if delivered
personally, telecopied, sent by nationally-recognized, overnight courier or
mailed by registered or certified mail (return receipt requested), postage
prepaid, to the parties at the following addresses (or at such other address for
a party as shall be specified by like notice):
(i) if to the Company, to:
Pliant Corporation
1515 Woodfield Road
Suite 600
Schaumberg, Illinois 60173
Attention: Glen Harsh
Telephone: 847-969-3357
Facsimile: 847-969-3338;
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with a copy to:
J.P. Morgan Partners, LLC
1221 Avenue of the Americas
New York, NY 10020-1080
Attention: Official Notices Clerk
FBO: Timothy J. Walsh
Telephone: 212-899-3400
Facsimile: 212-899-3401;
and a copy to:
O'Melveny & Myers LLP
30 Rockefeller Plaza, 41st Floor
New York, New York 10112
Attention: Ilan S. Nissan, Esq.
Telephone: 212-408-2400
Facsimile: 212-408-2420; and
(ii) if to the Consultant, to:
Edward Lapekas
1740 North Shore Drive
Walloon Lake, Michigan 49796
Telephone: 231-535-2470
Facsimile: 231-535-2809.
All such notices and other communications shall be deemed to have been delivered
and received (A) in the case of personal delivery, on the date of such delivery;
(B) in the case of delivery by telecopy, on the date of such delivery if such
day is a Business Day and, if such day is not a Business Day, on the next
Business Day following the date of such delivery; (C) in the case of delivery by
nationally-recognized, overnight courier, on the Business Day following
dispatch; and (D) in the case of mailing, on the fifth Business Day following
such mailing. As used herein, "Business Day" shall mean any day that is not a
Saturday, Sunday or a day on which banking institutions in New York, New York,
are not required to be open.
(i) Construction. Where specific language is used to clarify by
example a general statement contained herein, such specific language shall not
be deemed to modify, limit or restrict in any manner the construction of the
general statement to which it relates. The language used in this Agreement shall
be deemed to be the language chosen by the parties to express their mutual
intent, and no rule of strict construction shall be applied against any party.
(j) GOVERNING LAW. THE PROVISIONS OF THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED 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 OF 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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(k) MUTUAL WAIVER OF JURY TRIAL. THE PARTIES HEREBY IRREVOCABLY WAIVE
ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS AGREEMENT OR ANY DOCUMENT RELATED HERETO.
(l) Jurisdiction and Venue.
(i) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself or himself and its or his property, to
the exclusive jurisdiction of any New York State court or federal court of
the United States of America sitting in New York, New York and any
appellate court from any thereof, in any action or proceeding arising out
of or relating to this Agreement or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and
unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in any such New York State court or,
to the extent permitted by law, in any such federal court. Each of the
parties hereto agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by law.
(ii) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent that it or he may legally and effectively do
so, any objection that it or he may now or hereafter have to the laying of
venue of any suit, action or proceeding arising out of or relating to the
Agreement in any New York State or federal court sitting in New York, New
York. Each of the parties hereto irrevocably waives, to the fullest extent
permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
(iii) The parties further agree that the mailing by certified or
registered mail, return receipt requested, of any process required by any
such court shall constitute valid and lawful service of process against
them, without the necessity for service by any other means provided by law.
(m) Descriptive Headings. The headings of the sections of this Agreement
are inserted as a matter of convenience and reference only and in no way define,
limit or describe the scope of this Agreement or the meaning of any provision of
this Agreement.
(n) Mutual Contribution. The parties to this Agreement and their counsel
have mutually contributed to its drafting. Consequently, no provision of this
Agreement shall be construed against any party on the ground that a party
drafted the provision or caused it to be drafted.
(o) Survival. Sections 4, 5, 6, 7, 8, 9 and 10 shall survive the
termination of the Engagement Period.
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IN WITNESS WHEREOF, the parties have duly executed this Consulting
Agreement as of the date first above written.
PLIANT CORPORATION
By: /s/ Brian Johnson
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Name: Brian Johnson
Title: Executive Vice President and CFO
/s/ Edward Lapekas
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EDWARD LAPEKAS
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