<PAGE>
As Filed with the Securities and Exchange Commission on April 21, 1998
Registration No. 333-
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-----------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
-----------------------
SEALED AIR CORPORATION
(Exact name of Registrant as specified in its charter)
DELAWARE 65-0654331
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
Park 80 East
Saddle Brook, New Jersey 07663
(Address, including zip code, of Registrant's principal executive offices)
Contingent Stock Plan
of Sealed Air Corporation
(Full Title of the Plan)
H. Katherine White, Esq.
Assistant General Counsel and Secretary
Sealed Air Corporation
Park 80 East
Saddle Brook, New Jersey 07663
(201) 791-7600
(Name, address, including zip code, and telephone number, including area
code, of agent for service)
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CALCULATION OF REGISTRATION FEE
============================================================================================================================
Proposed Proposed
Amount Maximum Maximum Amount of
Title of to be Offering Price Aggregate Offering Registration
Securities to be Registered Registered Per Share(1) Price(1) Fee
- ----------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock, par value $0.10 per share 450,450 $6.15 $2,770,268 $818
- ----------------------------------------------------------------------------------------------------------------------------
</TABLE>
1. Estimated solely for the purpose of calculating the registration fee
pursuant to Rule 457(c), based on 10% of the average of the high and low
prices of the Registrant's Common Stock reported in the consolidated reporting
system for New York Stock Exchange traded securities on April 17, 1998.
This Registration Statement also covers such additional shares of Common
Stock as may be issuable pursuant to antidilution provisions.
==============================================================================
PART II
INFORMATION REQUIRED IN THE
REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents filed by the Registrant (File No.
1-12139) with the Securities and Exchange Commission are incorporated by
reference into this Registration Statement:
(a) Annual Report on Form 10-K of W. R. Grace & Co. for the year
ended December 31, 1997;
(b) Current Report on Form 8-K of W. R. Grace & Co. dated
February 9, 1998;
(c) Current Report on Form 8-K of Sealed Air Corporation
(formerly named W. R. Grace & Co.) dated March 31, 1998;
(d) Current Report on Form 8-K of Sealed Air Corporation
(formerly named W. R. Grace & Co.) dated April 2, 1998;
(e) the description of the Registrant's common stock contained
in the Registrant's Joint Proxy Statement/Prospectus filed as part of
the Registrant's Registration Statement on Form S-4, declared effective
on February 13, 1998.
All documents filed by the Corporation with the Securities and
Exchange Commission pursuant to Sections 13(a), 13(c), 14 and 15(d) of the
Securities Exchange Act of 1934, as amended, subsequent to the date of this
Registration Statement and prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which
deregisters all securities then remaining unsold, shall be deemed to be
incorporated herein by reference and to be a part hereof from the respective
date of filing of each such document.
Item 4. Description of Securities
The securities to be offered are registered under Section 12(b)
of the 1934 Act.
Item 5. Interest of Named Experts and Counsel
The validity of the shares of Common Stock offered under the
Contingent Stock Plan of Sealed Air Corporation has been passed upon for the
Registrant by H. Katherine White, Esq., Assistant General Counsel and
Secretary of the Registrant. As of the date of this Registration Statement,
Ms. White was employed by the Registrant and was the beneficial owner of
approximately 29,106 shares of Common Stock of the Registrant.
Item 6. Indemnification of Directors and Officers
Section 145 of the General Corporation Law of the State of
Delaware (the "General Corporation Law") provides that: (1) under certain
circumstances a corporation may indemnify a director or officer made party to,
or threatened to be made party to, any civil, criminal, administrative or
investigative action, suit or proceeding (other than an action by or in the
right of the corporation) because such person is or was a director, officer,
employee or agent of the corporation, or because such person is or was so
serving another enterprise at the request of the corporation, against
expenses, judgments, fines and amounts paid in settlement reasonably incurred
by such person in connection with such action, suit or proceeding, if such
person acted in good faith and in a manner such person reasonably believed to
be in or not opposed to the best interests of the corporation, and, with
respect to criminal cases, had no reasonable cause to believe such person's
conduct was unlawful; (2) under certain circumstances a corporation may
indemnify a director or officer made party to, or threatened to be made party
to, any action or suit by or in the right of the corporation for judgment in
favor of the corporation because such person is or was a director, officer,
employee or agent of the corporation, or because such person is or was so
serving another enterprise at the request of the corporation, against expenses
reasonably incurred by such person in connection with the defense or
settlement of such action or suit if such person acted in good faith and in a
manner such person reasonably believed to be in or not opposed to the best
interests of the corporation; and (3) a director or officer shall be
indemnified by the corporation against expenses reasonably incurred by such
person in connection with and to the extent that such person has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in the preceding clauses, or in defense of any claim,
issue or matter therein.
Under Article ELEVENTH of the Registrant's Amended and Restated
Certificate of Incorporation and Article 8 of the Registrant's By-laws,
indemnification of directors and officers is provided for to the fullest
extent permitted under the General Corporation Law. Article TWELFTH of the
Registrant's Amended and Restated Certificate of Incorporation eliminates the
liability of directors for monetary damages for breach of fiduciary duty as
directors, except for liability (1) for any breach of the director's duty of
loyalty to the Registrant or its stockholders, (2) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation
of law, (3) under Section 174 of the General Corporation Law (which relates to
the payment of unlawful dividends or unlawful stock purchases or redemptions),
or (4) for any transaction from which the director derived an improper
personal benefit. The General Corporation Law, the Registrant's Amended and
Restated Certificate of Incorporation and the By-laws of the Registrant permit
the purchase by the Registrant of insurance for indemnification of directors
and officers. The Registrant currently maintains directors and officers
liability insurance.
The foregoing summary of Section 145 of the General Corporation
Law, Articles ELEVENTH and TWELFTH of the Amended and Restated Certificate of
Incorporation of the Registrant and Article 8 of the By-laws of the Registrant
is qualified in its entirety by reference to the relevant provisions of
Section 145, the relevant provisions of the Registrant's Amended and Restated
Certificate of Incorporation, which are incorporated herein by reference to
Exhibit 3.1 to the Registrant's Current Report on Form 8-K dated March 31,
1998, and the relevant provisions of the Registrant's By-laws, which are
incorporated herein by reference to Exhibit 3.2 to the Registrant's Current
Report on Form 8-K dated March 31, 1998.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Reference is made to the Exhibit Index.
Item 9. Undertakings
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this registration
statement:
(i) To include any prospectus required by Section 10(a)(3) of
the Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the registration statement (or the
most recent post-effective amendment thereof) which, individually
or in the aggregate, represent a fundamental change in the
information set forth in the registration statement.
Notwithstanding the foregoing, any increase or decrease in volume
of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum
offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate,
the changes in volume and price represent no more than a 20%
change in the maximum aggregate offering price set forth in the
"Calculation of Registration Fee" table in the effective
registration statement;
(iii) To include any material information with respect to the plan
of distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
(2) That, for the purpose of determining any liability under
the Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The undersigned registrant hereby undertakes that, for
purposes of determining any liability under the Securities Act of 1933,
each filing of the registrant's annual report pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934 (and, where applicable,
each filing of an employee benefit plan's annual report pursuant to
Section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the registration settlement shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, and
controlling persons of the registrant pursuant to the foregoing
provisions, or otherwise, the registrant has been advised that in the
opinion of the Securities and Exchange Commission such indemnification
is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer, or controlling person of the
registrant in the successful defense of any action, suit, or
proceeding) is asserted by such director, officer, or controlling
person in connection with the securities being registered, the
registrant will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against
public policy as expressed in the Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the Town of Saddle Brook, State of New Jersey,
on this 20th day of April, 1998.
SEALED AIR CORPORATION
By: /s/ T. J. Dermot Dunphy
---------------------------------------------
Name: T. J. Dermot Dunphy
Title: Chairman of the Board, Chief Executive
Officer and Director
Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated. Each person whose individual
signature appears below hereby authorizes T. J. Dermot Dunphy, William V.
Hickey and H. Katherine White, and each of them, as attorneys-in-fact,
with full power of substitution, to execute, in the name and on behalf of
each such person and in any and all capacities, and to file any amendment
to this Registration Statement (and all other registration statements to
which the prospectus related to this Registration Statement also relates
pursuant to Rule 429 of the General Rules and Regulations under the
Securities Act of 1933, as amended), including any and all post-effective
amendments.
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<CAPTION>
Signature Title Date
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<S> <C> <C>
/s/ T. J. Dermot Dunphy Chairman of the Board, April 21, 1998
- ---------------------------- Chief Executive Officer and
(T.J. Dermot Dunphy) Director
/s/ Horst Tebbe Vice President-Finance and April 21, 1998
- ---------------------------- Chief Financial Officer
(Horst Tebbe) (Principal Financial Officer)
/s/ Jeffrey S. Warren Controller April 21, 1998
- ---------------------------- (Principal Accounting
(Jeffrey S. Warren) Officer)
Director
- ----------------------------
(Hank Brown)
/s/ John K. Castle Director April 21, 1998
- ----------------------------
(John K. Castle)
Director
- ----------------------------
(Christopher Cheng)
/s/ Lawrence R. Codey Director April 21, 1998
- ----------------------------
(Lawrence R. Codey)
/s/ Charles F. Farrell, Jr. Director April 21, 1998
- ----------------------------
(Charles F. Farrell, Jr.)
/s/ David Freeman Director April 21, 1998
- ----------------------------
(David Freeman)
Director
- ----------------------------
(Virginia A. Kamsky)
/s/ Alan H. Miller Director April 21, 1998
- ----------------------------
(Alan H. Miller)
Director
- ----------------------------
(John E. Phipps)
/s/ R. L. San Soucie Director April 21, 1998
- ----------------------------
(R. L. San Soucie)
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EXHIBIT INDEX
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Exhibit
Number Description
<S> <C>
4.1 Amended and Restated Certificate of Incorporation of the Registrant (incorporated
by reference to the Registrant's Current Report on Form 8-K dated March 31, 1998).
4.2 Amended and Restated By-laws of the Registrant (incorporated by reference to the
Registrant's Current Report on Form 8-K dated March 31, 1998).
4.3 Contingent Stock Plan of Sealed Air Corporation.
4.4 Form of Contingent Stock Purchase Agreement - Non-Officer Employee.
4.5 Form of Contingent Stock Purchase Agreement - Officer.
4.6 Form of Contingent Stock Purchase Agreement - Section 162(m) Officer.
5.1 Opinion of H. Katherine White, Esq.
23.1 Consent of Price Waterhouse LLP.
23.2 Consent of KPMG Peat Marwick LLP.
23.3 Consent of H. Katherine White, Esq. (included in Exhibit 5.1).
24.1 Power of Attorney (included in Signature Page).
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EXHIBIT 4.3
CONTINGENT STOCK PLAN
OF
SEALED AIR CORPORATION
Section 1. Purpose. The purpose of the Contingent Stock Plan (the
"Plan") of Sealed Air Corporation (the "Corporation") is to assist the
Corporation and its subsidiaries in attracting and retaining employees of
outstanding competence by providing an incentive that permits those employees
responsible for the Corporation's growth to share directly in that growth and
to further the identity of their interests with those of the stockholders of
the Corporation.
Section 2. Administration. The Plan shall be administered by a
committee (the "Committee") composed of not less than three persons chosen
from time to time by the Board of Directors of the Corporation (the "Board")
from among those directors of the Corporation who are not, and have not been
for at least one year, employees of the Corporation or its subsidiaries. In
addition to the powers granted to the Committee as elsewhere set forth in the
Plan, and subject to the terms and conditions of the Plan, the Committee is
authorized to interpret the Plan, to adopt and revise rules and regulations
relating to the Plan and the conduct of the business of the Committee, and to
make all determinations that it believes necessary or advisable for the
operation and administration of the Plan. All decisions and determinations by
the Committee with respect to the Plan shall be final, binding and conclusive
upon all parties, including the Corporation, its stockholders and all
employees of the Corporation and of its subsidiaries. If no Committee is
appointed by the Board or if the Committee shall for any reason cease or
become unable to act, the Board shall act as the Committee. No member of the
Committee shall be liable for any action or determination made in good faith
with respect to the Plan or any award ("Award") of a right to purchase shares
of the $0.10 par value Common Stock of the Corporation (the "Common Stock")
granted pursuant to the Plan.
Section 3. Stock Available. The stock subject to the Plan shall be
such authorized but unissued or treasury shares of Common Stock as shall from
time to time be determined by the Committee. The total amount of Common Stock
that may be issued pursuant to the Plan is 450,450 shares, subject, however,
to adjustment in accordance with the provisions of Section 15. In the event
that any Common Stock issued pursuant to the Plan is reacquired by the
Corporation upon the exercise of an option described in Section 8, the shares
of Common Stock so acquired will again become available for issuance pursuant
to the Plan.
Section 4. Eligibility. Each employee of the Corporation or any
subsidiary of the Corporation, including officers, whom the Committee
determines is in a position to make a significant contribution to the growth
and success of the Corporation shall be eligible to participate under the Plan
("Employee"). An Employee may receive more than one Award under the Plan.
Section 5. Terms, Conditions and Form of Purchase Agreements. The
Committee shall have exclusive jurisdiction, except as otherwise limited by
the Plan, to grant all Awards, to select the Employees to be granted Awards,
to determine the number of shares of Common Stock to be covered by an Award,
to determine the time or times for the grant of Awards, to determine the Issue
Price (as such term is defined in Section 7) of the shares of Common Stock
that are the subject of an Award, to determine the duration of the
Corporation's option described in Section 8, to prescribe the form or forms of
agreement for the purchase of the Common Stock that is the subject of an Award
("Purchase Agreement"), to modify any such form of Purchase Agreement, and to
have full authority with respect to all other matters relating to the Plan
except those matters as are expressly reserved herein to the stockholders of
the Corporation. The Committee shall inform the appropriate officers of the
Corporation of its determinations, and such officers shall inform the Employee
to whom an Award has been made of the grant of such Award. The Committee may
authorize any officer of the Corporation to enter into Purchase Agreements on
behalf of the Corporation and to take all other action necessary or desirable
to effectuate the determinations of the Committee. Purchase Agreements, which
need not be identical, shall be in writing and shall not contain provisions
inconsistent with provisions of the Plan.
Section 6. Exercise of Right to Purchase Shares. An Employee who has
been granted an Award may exercise his right to purchase shares of Common
Stock during the 60 day period beginning immediately after the grant of the
Award, provided that he is still an employee of the Corporation or of a
subsidiary of the Corporation on the date of such exercise. In order to so
exercise such right to purchase, an Employee shall give written notice to the
Corporation of such election. The Issue Price of the shares to be issued
shall be tendered in cash at the time such notice is given. No such right to
purchase shares shall be transferable by an Employee to whom an Award has been
granted.
Section 7. Issue Price of Common Stock. Prior to the issuance of
Common Stock to an Employee pursuant to the Plan, the Employee shall pay to
the Corporation an amount of money per share ("Issue Price") to be determined
by the Committee that shall take into consideration the value of the services
performed and to be performed by the Employee, which amount shall not be less
per share than the par value of the Common Stock nor more than ten percent
(10%) of the fair market value per share thereof. For the purposes of the
foregoing sentence, "fair market value per share" shall mean the last sales
price of the Common Stock as reported on the consolidated transaction
reporting system for New York Stock Exchange listed issues on the day prior to
the day on which an Employee gives notice to the Corporation of his exercise
of an Award or, if no sales occurred on such date, the last sales price on the
consolidated transaction reporting system on the most recent day prior to such
previous day on which a sale occurred. If the Common Stock ceases to be
listed on the New York Stock Exchange, Inc., fair market value per share shall
be determined in such manner as shall be selected by the Committee. If the
Issue Price (as determined by the Committee on the date of an Award) shall
exceed ten per cent (10%) of the fair market value per share determined as of
the day prior to the exercise date of an Award, the Issue Price shall be
reduced to an amount that shall represent ten percent (10%) of the fair market
value per share on such previous day.
Section 8. Option of the Corporation to Reacquire Issued Stock.
Except as provided below, for a period beginning on the date of the grant of
an Award and ending on the third anniversary of such date or such later date
as the Committee shall determine, any Common Stock issued pursuant to the Plan
shall be subject to an option in favor of the Corporation to reacquire such
Common Stock at a price per share equal to the Issue Price. Neither the
shares of Common Stock issued pursuant to the Plan nor any interest therein
shall be sold, transferred or encumbered until such option may no longer
become exercisable. The option of the Corporation to reacquire such Common
Stock shall become exercisable only upon the termination of employment of the
Employee with the Corporation or any of its subsidiaries other than as a
result of the Employee's death or permanent and total disability. The
decision whether or not to exercise such option as to all or part of the
shares subject thereto owned by an Employee shall be made by the Committee and
communicated to the Chief Executive Officer or other appropriate officer of
the Corporation who shall be authorized to take any and all action necessary
to effectuate such decision.
Section 9. Exercise of Option to Reacquire Issued Stock. The option
described in Section 8 shall be exercised in whole or part by the Corporation
by its sending, if at all, within 90 days after the Employee's termination of
employment, by registered mail, postage prepaid, written notice of such
exercise to the Employee at the address specified by the Employee for such
purpose, such notice also to set forth the address to which and the date on
which the certificates representing the Common Stock in respect of which the
option is being exercised, duly endorsed for transfer, should be sent. The
date specified shall not be less than ten days nor more than thirty days from
the date of such notice. The Employee or his successor in interest with
respect to such shares shall have no further rights as a stockholder from and
after the date so specified in such notice. If the certificates are duly
delivered in accordance with the written notice, the Corporation shall
promptly send to the Employee its check in repayment of the Issue Price for
such shares. The Corporation shall affix to the certificates any required
stock transfer stamps. If the certificates are not so delivered, the
Corporation shall deposit the required amount of payment in an escrow account
in the name of the Employee to be held therein until such certificates are
delivered to the Corporation and the Corporation shall immediately advise its
transfer agent of such action.
Section 10. Legend on Stock Certificates. All shares of Common Stock
issued under the Plan shall, so long as the restrictions imposed by the Plan
remain in effect, be represented by certificates, each of which shall bear a
legend in substantially the following form:
This certificate and the shares represented hereby are held
subject to the terms of the Contingent Stock Plan of Sealed Air
Corporation which Plan provides that the shares issued pursuant
thereto are subject to an option in favor of Sealed Air Corporation
to reacquire such shares at a price that may be significantly lower
than their fair market value and that neither such shares nor any
interest therein may be sold, transferred or encumbered until the
expiration of such option. If such option is exercised, the holder
of the shares represented by this certificate will have no further
rights with respect to such shares and this certificate will be
deemed void. A copy of such Plan is available for inspection at the
executive offices of Sealed Air Corporation.
Upon the expiration of the Corporation's option to reacquire shares of Common
Stock, an Employee may surrender to the Corporation the certificate or
certificates representing such shares in exchange for a new certificate or
certificates, free of the above legend, or for a statement from the Corporation
representing such shares in book entry form free of such legend.
Section 11. Government and Other Regulations and Restrictions. The
obligation of the Corporation to issue Common Stock upon execution of a
Purchase Agreement shall be subject to all applicable laws, rules and
regulations and to such approvals by governmental agencies as may be required.
Shares of Common Stock acquired pursuant to the Plan shall not be sold,
transferred or otherwise disposed of unless and until either (a) such shares
shall have been registered by the Corporation under the Securities Act of
1933, as amended (the "Securities Act"), (b) the Corporation shall have
received either a "no action" letter from the Securities and Exchange
Commission or an opinion of counsel acceptable to the Corporation to the
effect that such sale, transfer or other disposition of the shares may be
effected without such registration or (c) such sale, transfer or disposition
of the shares is made pursuant to Rule 144 of the General Rules and Regulations
promulgated under the Securities Act, as the same may from time to time be in
effect, and the Corporation shall have received an opinion of counsel
acceptable to the Corporation to such effect. In the event that at the time a
Purchase Agreement is executed there shall not be on file with the Securities
and Exchange Commission an effective Registration Statement under the
Securities Act covering the shares of Common Stock to be issued pursuant
thereto the Employee will execute and deliver to the Corporation upon receipt
by him of any such shares an undertaking in form and substance satisfactory to
the Corporation that (i) it is his intention to acquire and hold such shares
for investment and not for the resale or distribution thereof, (ii) he will
comply with the Securities Act with respect to such shares, and (iii) he will
indemnify the Corporation for any costs, liabilities and expenses that it may
sustain by reason of any violation of the Securities Act occasioned by any act
on his part with respect to such shares. The Corporation may require that any
certificate or certificates evidencing shares issued pursuant to the Plan bear
a restrictive legend intended to effect compliance with the Securities Act or
any other applicable regulatory measures.
Section 12. Registration of Shares. The Corporation shall be under no
obligation to register any shares of Common Stock under the Securities Act.
However, a Purchase Agreement may make appropriate and reasonable provision
for the registration of Common Stock acquired thereunder. The Corporation, at
its election, may undertake to pay all fees and expenses of each such
registration, other than an underwriter's commission, if any.
Section 13. No Rights in Common Stock. No Employee shall have any
interest in or be entitled to any voting rights or dividends or other rights
or privileges of stockholders of the Corporation with respect to any shares of
Common Stock unless, and until, shares of Common Stock are actually issued to
such Employee following execution of a Purchase Agreement and then only from
the date the Employee becomes the record owner thereof.
Section 14. Subsidiaries. The subsidiaries of the Corporation
referred to in the Plan are those corporations 50 per cent or more of whose
outstanding voting stock is owned or controlled, directly or indirectly, by
the Corporation and those partnerships and joint ventures in which the
Corporation owns directly or indirectly a 50 percent or more interest in the
capital account or earnings.
Section 15. Adjustments. In the event of changes in the Common Stock
of the Corporation after the Effective Date by reason of any stock dividend,
split-up, combination of shares, reclassification, recapitalization, merger,
consolidation, reorganization, or liquidation: (a) the restrictions and the
option provided in Section 8 and the requirement of a legend on stock
certificates provided in Section 10 shall apply to any securities issued in
connection with any such change in respect of stock that has been awarded
under the Plan and (b) appropriate adjustments shall be made by the Committee
as to (i) the number of shares to be delivered and the price per share to be
paid by the Corporation upon the exercise, in whole or in part, of the option
provided in Section 8, (ii) the number of shares to be delivered and the Issue
Price where such change occurred after the date of the Award but before the
date the stock covered by the Award is delivered and (iii) the number and class
of shares available under the Plan in the aggregate.
Section 16. Change in Control. A "Change in Control" shall occur when
(i) the Corporation is merged into or consolidated with another corporation or
other entity and as a result of such merger or consolidation less than 70% of
the combined voting power of the outstanding voting securities of the
surviving or resulting corporation or other entity shall, after giving effect
to such merger or consolidation, be "beneficially owned" (within the meaning
of Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, as amended
(the "Securities Exchange Act")) in the aggregate, directly or indirectly, by
the former stockholders of the Corporation (excluding from such computation
any such securities beneficially owned, directly or indirectly, by
"affiliates" of the Corporation (as defined in Rule 12b-2 under the Securities
Exchange Act) and any such securities so beneficially owned, directly or
indirectly, by a party to such merger or consolidation), (ii) the Corporation
shall sell all or substantially all of its assets, (iii) any "person" is or
becomes the "beneficial owner" (as the terms "person" and "beneficial owner"
are used in Sections 13(d) and 14(d) of the Securities Exchange Act), directly
or indirectly, of securities of the Corporation representing 30% or more of
the combined voting power of the Corporation's then outstanding securities,
(iv) as a result of any solicitation subject to Rule 14a-11 under the
Securities Exchange Act (or any successor rule thereto) one or more persons
not recommended by or opposed for election to the Board of Directors by
one-third or more of the directors of the Corporation then in office is or are
elected a director of the Corporation, or (v) the Corporation shall become
subject for any reason to a voluntary or involuntary dissolution or
liquidation. If a Change of Control shall occur, then as of the close of
business at the principal executive office of the Corporation on the business
day immediately preceding the date on which such Change of Control occurs, for
purposes of the Plan and to the extent that the provisions of the Plan remain
applicable to shares awarded under the Plan, the option provided for in
Section 8 of the Plan shall cease without further act to be exercisable with
respect to any securities subject to an Award under the Plan, the restrictions
provided for in Section 8 of the Plan shall without further act expire and
cease to apply to any securities subject to an Award under the Plan, the
requirement of a legend on stock certificates provided for in Section 10 of
the Plan shall without further act expire and cease to apply to any securities
subject to an Award under the Plan, and each Employee holding shares issued
under the Plan shall thereupon have the right to receive an unlegended
certificate as set forth in the last sentence of Section 10 of the Plan.
Section 17. Successors. The provisions of the Plan shall be
binding upon and inure to the benefit of all successors of any person
receiving Common Stock of the Corporation pursuant to the Plan, including,
without limitation, the estate of such person and the executors,
administrators or trustees thereof, the heirs and legatees of such person,
and any receiver, trustee in bankruptcy or representative of creditors of
such person.
Section 18. Indemnification of Committee Members. In addition to such
other rights of indemnification as they may have as directors or as members of
the Committee, the members of the Committee shall be indemnified by the
Corporation against all costs and expenses reasonably incurred by them in
connection with any action, suit or proceeding to which they or any of them
may be party by reason of any action taken or failure to act under or in
connection with the Plan, and against all amounts paid by them in settlement
thereof (provided such settlement is approved by independent legal counsel
selected by the Corporation) or paid by them in satisfaction of a judgment in
any such action, suit or proceeding, except a judgment based upon a finding of
bad faith, provided that upon institution of any such action, suit or
proceeding, the Committee member desiring indemnification shall give the
Corporation an opportunity, at its own expense, to conduct and defend the same.
Section 19. Corporation's Right to Terminate Employment. Nothing
contained in the Plan or in any Purchase Agreement shall confer upon any
Employee a right to continue in the employ of the Corporation or any of its
subsidiaries or interfere in any way with the right of the Corporation or any
of its subsidiaries to terminate the employment of any Employee at any time,
whether with or without cause.
Section 20. Tax Withholding. Each Purchase Agreement incident to the
Plan shall make appropriate provisions for the withholding of any federal,
state or local taxes and any other charges that may be required by law to be
withheld by reason of an Award, the issuance of Common Stock pursuant to the
Plan or the reacquisition of such Common Stock by the Corporation.
Section 21. Action by Corporation. Neither the existence of the Plan
nor the issuance of Common Stock pursuant thereto shall impair the right of
the Corporation or its stockholders to make or effect any adjustments,
recapitalizations or other change in the Common Stock referred to in Section
15, any change in the Corporation's business, any issuance of debt obligations
or stock by the Corporation or any grant of options on stock of the
Corporation.
Section 22. Reliance on Reports. Each member of the Committee shall
be fully justified in relying or acting in good faith upon any reports or
other information furnished in connection with the Plan by any person or
persons. In no event shall any person who is or shall have been a member of
the Committee be liable for any determination made or other action taken or any
omission to act in reliance upon any such report or information or for any
action taken or failure to act, if in good faith.
Section 23. Expenses. The expenses of administering the Plan shall be
borne by the Corporation.
Section 24. Pronouns. Masculine pronouns and other words of masculine
gender shall refer to both men and women.
Section 25. Termination and Amendment of the Plan. The Committee
shall have complete power and authority to amend, suspend or terminate the
Plan and, if suspended, reinstate any and all provisions of the Plan except
that without approval of the stockholders of the Corporation and except as
otherwise provided in Section 15, (i) the number of shares available for
issuance under the Plan either in the aggregate or to any one person shall not
be increased, (ii) the minimum three year period specified in Section 8 shall
not be decreased, (iii) the class of persons eligible to receive Awards under
the Plan shall not be expanded, and (iv) the minimum Issue Price shall not be
decreased. Any Common Stock issued under the Plan with respect to which the
period specified in or pursuant to Section 8 has not expired on or before the
date of termination of the Plan shall remain subject to reacquisition by the
Corporation pursuant to Section 8 until the expiration of such period.
Section 26. Effective Date. The Plan shall become effective on April
2, 1998 (the "Effective Date").
EXHIBIT 4.4
NON-OFFICER
CONTINGENT STOCK PURCHASE AGREEMENT
AGREEMENT dated as of between SEALED AIR
CORPORATION, a Delaware corporation (the "Corporation"), and
(the "Employee").
The Employee is now in the employ of the Corporation or one of its
subsidiaries and has been selected by the Compensation Committee (the
"Committee") of the Board of Directors of the Corporation as one who is in a
position to make a significant contribution to the growth and success of the
Corporation. Pursuant to the Contingent Stock Plan of Sealed Air Corporation
(the "Plan"), the Corporation desires to provide an incentive to the Employee
which will permit him to share directly in the growth of the Corporation and to
further identify his interests with those of the stockholders of the
Corporation.
NOW, THEREFORE, the Corporation and the Employee mutually agree as
follows:
Section 1. Purchase and Sale of Stock
Subject to the terms and conditions hereinafter set forth, the
Corporation hereby sells to the Employee and the Employee purchases from the
Corporation * * shares of the $0.10 par value Common Stock of the
Corporation ("Common Stock") for a purchase price of $1.00 per share (subject
to adjustment pursuant to Section 7 of the Plan) (the "Issue Price"), receipt
of which the Corporation hereby acknowledges. The Corporation will deliver to
the Employee a certificate representing such shares of Common Stock within a
reasonable time after execution of this Agreement.
Section 2. Representation
The Corporation represents that all shares of Common Stock issued
pursuant to this Agreement will be duly authorized, validly issued, fully-paid
and nonassessable.
Section 3. Repurchase Option and Period of Restriction
During the period beginning with the date of this Agreement and ending
on the third anniversary of such date, and except as provided below, the
Common Stock issued pursuant to this Agreement shall be subject to an option
(the "Repurchase Option") in favor of the Corporation to reacquire such Common
Stock at a price per share equal to the Issue Price. Neither the shares of
Common Stock issued pursuant to this agreement nor any interest therein shall
be sold, transferred or encumbered until the Repurchase Option may no longer
become exercisable. The Repurchase Option shall become exercisable only upon
the termination of employment of the Employee with the Corporation or any of
its subsidiaries other than as a result of the Employee's death or permanent
and total disability.
Section 4. Exercise of the Repurchase Option
The Repurchase Option shall be exercised in whole or in part by the
Corporation, if at all, by its sending written notice of such exercise to the
Employee at the address specified in or pursuant to Section 10 within 90 days
after the Employee's termination of employment. Such notice, which shall be
sent by registered mail, postage prepaid, shall also set forth the address to
which and the date on which the certificates representing the Common Stock in
respect of which the Repurchase Option is being exercised, duly endorsed for
transfer, should be sent. The date specified shall not be less than ten days
nor more than thirty days from the date of such notice. The Employee or his
successor in interest with respect to such shares shall have no further rights
as a stockholder from and after the date so specified in such notice and
agrees that the Common Stock represented by such certificate shall be deemed
canceled and returned to the treasury of the Corporation and that the Employee
will have no further incidents of ownership, including the right to receive
dividends or other distributions. If the certificates are duly delivered in
accordance with the written notice, the Corporation shall promptly send to the
Employee its check in the amount of the Issue Price for such shares. The
Corporation shall affix to the certificates any required stock transfer
stamps. If the certificates are not so delivered, the Corporation shall
deposit the required amount of payment in an escrow account in the name of the
Employee to be held therein until such certificates are delivered to the
Corporation and the Corporation shall immediately advise its transfer agent of
such action. In addition, if the certificates are not so delivered, the
Employee shall repay to the Corporation any dividends or other distributions
which may have become payable of record on or after the date on which the
Employee was required to deliver the certificates to the Corporation and
agrees to reimburse the Corporation all of its expenses (including attorneys'
fees) incurred in connection with any steps the Corporation may take to cancel
the certificates or to obtain the repayment of such dividends or other
distributions, or both.
Section 5. Legend on Stock Certificates
Every certificate of Common Stock issued pursuant to this Agreement
shall, so long as the restrictions described in Section 3 remain in effect,
bear a legend in substantially the following form:
This certificate and the shares represented hereby are held
subject to the terms of the Contingent Stock Plan of Sealed Air
Corporation which Plan provides that the shares issued pursuant thereto
are subject to an option in favor of Sealed Air Corporation to reacquire
such shares at a price which may be significantly lower than their fair
market value and that neither such shares nor any interest therein may be
sold, transferred or encumbered until the expiration of such option. If
such option is exercised, the holder of the shares represented by this
certificate will have no further rights with respect to such shares and
this certificate will be deemed void. A copy of the Contingent Stock
Plan is available for inspection at the executive offices of Sealed Air
Corporation.
and shall have in effect a stop-transfer order with respect thereto. Upon
expiration of the Repurchase Option, an Employee may surrender to the
Corporation the certificate or certificates representing such shares in
exchange for a new certificate or certificates, free of the above legend.
Section 6. Government and Other Regulations and Restrictions
The obligations of the Corporation to issue Common Stock upon
execution of this Agreement shall be subject to all applicable laws, rules
and regulations and to such approvals by governmental agencies as may be
required. The Corporation may require that any certificate or certificates
evidencing such shares bear a restrictive legend intended to effect
compliance with applicable laws or regulatory measures.
Section 7. Registration of Shares
The Corporation shall be under no obligation to register any shares of
Common Stock under the Securities Act of 1933.
Section 8. No Rights in Common Stock
The Employee shall not have any interest in or be entitled to any voting
rights or dividends or other rights or privileges of stockholders of the
Corporation with respect to any shares of Common Stock issued pursuant to this
agreement until the shares of Common Stock are actually issued to the Employee
and then only from the date the Employee becomes the record owner thereof.
Section 9. Injunctive Relief
In addition to any other rights or remedies available to the Corporation
as a result of the breach of the Employee's obligations hereunder, the
Corporation shall be entitled to enforcement of such obligations by an
injunction or a decree of specific performance from a court with appropriate
jurisdiction and, in the event that the Corporation is successful in any suit
or proceeding brought or instituted by the Corporation to enforce any of the
provisions of this Agreement or on account of any damages sustained by the
Corporation by reason of the violation by the Employee of any of the terms and
conditions of this Agreement to be performed by the Employee, the Employee
agrees to pay to the Corporation all costs and expenses including attorneys'
fees reasonably incurred by the Corporation.
Section 10. Notices
Any notice which either party hereto may be required or permitted to
give to the other shall be in writing and, except as otherwise required
herein, may be delivered personally or by mail to the Corporation at Park 80
Plaza East, Saddle Brook, New Jersey 07663, attention of the Secretary of the
Corporation, or to the Employee at the address set forth below or at such
other address as either party may designate by notice to the other.
Section 11. Subsidiaries
The subsidiaries of the Corporation referred to in this Agreement are
those corporations 50 percent or more of whose outstanding voting stock is
owned or controlled, directly or indirectly, by the Corporation and those
partnerships and joint ventures in which the Corporation owns directly or
indirectly a 50 percent or more interest in the capital account or earnings.
Section 12. Adjustments
In the event of changes in the Common Stock of the Corporation after the
date of this Agreement by reason of any stock dividend, split-up, combination
of shares, reclassification, recapitalization, merger, consolidation,
reorganization, or liquidation: (a) the Repurchase Option and the
restrictions described in Section 3 and the requirement of a legend on stock
certificates as described in Sections 5 and 6 shall apply to any securities
issued in connection with any such change in respect of Common Stock issued
pursuant to this Agreement, and (b) appropriate adjustments shall be made by
the Committee as to (i) the number of shares to be delivered and the price per
share to be paid by the Corporation upon the exercise, in whole or in part, of
the Repurchase Option, (ii) the number of shares to be delivered and the Issue
Price where such change occurs after the date of this Agreement but before
the date the stock covered by this Agreement is delivered, and (iii) the
number and class of shares available under the Plan in the aggregate.
Section 13. Successors
The provisions of this Agreement shall be binding upon and inure to the
benefit of all successors of the Employee, including, without limitation, his
estate and the executors, administrators or trustees thereof, his heirs and
legatees and any receiver, trustee in bankruptcy or representative of his
creditors.
Section 14. Corporation's Right to Terminate Employment
Nothing contained in this Agreement shall confer upon the Employee a
right to continue in the employ of the Corporation or any of its subsidiaries
or interfere in any way with the right of the Corporation or any of its
subsidiaries to terminate the employment of the Employee at any time, with or
without cause.
Section 15. Payment of Withholding Tax
In the event that, in the opinion of counsel for the Corporation, any
Federal, state or local taxes or any other charges may now or hereafter be
required by law to be withheld by the Corporation or one of its subsidiaries
from the wages or salary of the Employee by reason of this Agreement or
otherwise with respect to the Common Stock governed hereby, the Employee
agrees to pay to the Corporation or such subsidiary, as the case may be, on
five days written demand from the Corporation or such subsidiary an amount
equal to such withholding tax or charge.
Section 16. Action by Corporation
Neither the existence of this Agreement nor the issuance of Common Stock
pursuant hereto shall impair the right of the Corporation or its stockholders
to make or effect any of the adjustments, recapitalizations or other changes
in the Common Stock referred to in Section 12, any change in the Corporation's
business, any issuance of debt obligations or stock by the Corporation or any
grant of options with respect to stock of the Corporation.
Section 17. Interpretation
The Employee agrees that all questions of interpretation and
administration of this Agreement shall be determined by the Committee in its
sole discretion and such determination shall be final, binding and conclusive
upon him. If the Committee is not acting, its functions shall be performed by
the Board of Directors of the Corporation, and each reference
in this Agreement to the Committee shall, in that event, be deemed to refer to
the Board of Directors.
Section 18. Applicable Law
This Agreement shall be governed and construed in accordance with the
laws of the State of Delaware.
Section 19. Terms and Conditions of Contingent Stock Plan of Sealed Air
Corporation
The authority of the Corporation to enter into this Agreement and the
issuance of shares of Common Stock pursuant hereto is derived exclusively from
the Plan and from a resolution of the Committee granting the Employee the
right to purchase shares of Common Stock pursuant to the Plan (the
"Resolution"). In the event that any terms or conditions of this agreement
are in conflict with any terms or conditions of the Plan or of the Resolution,
the terms and conditions of the Plan or Resolution shall control.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be duly
executed under its corporate seal and the Employee has hereunto set his hand
and seal, all as of the day and year first above written.
SEALED AIR CORPORATION
By
-----------------------------
Vice President - Finance
[Corporate Seal]
Attest:
- -------------------------------
Secretary
-------------------------------
Employee
Address of Employee:
-------------------------------
-------------------------------
EXHIBIT 4.5
OFFICER
CONTINGENT STOCK PURCHASE AGREEMENT
AGREEMENT dated as of between SEALED AIR
CORPORATION, a Delaware corporation (the "Corporation"), and
(the "Employee").
The Employee is now an officer of the Corporation and has been selected
by the Compensation Committee (the "Committee") of the Board of Directors of
the Corporation as one who is in a position to make a significant contribution
to the growth and success of the Corporation. Pursuant to the Contingent
Stock Plan of Sealed Air Corporation (the "Plan"), the Corporation desires to
provide an incentive to the Employee which will permit him to share directly
in the growth of the Corporation and to further identify his interests with
those of the stockholders of the Corporation.
NOW, THEREFORE, the Corporation and the Employee mutually agree as
follows:
Section 1. Purchase and Sale of Stock
Subject to the terms and conditions hereinafter set forth, the
Corporation hereby sells to the Employee and the Employee purchases from the
Corporation * * shares of the $0.10 par value Common Stock of the
Corporation ("Common Stock") for a purchase price of $1.00 per share (subject
to adjustment pursuant to Section 7 of the Plan) (the "Issue Price"), receipt
of which the Corporation hereby acknowledges. The Corporation will deliver to
the Employee a certificate representing such shares of Common Stock within a
reasonable time after execution of this Agreement.
Section 2. Representation
The Corporation represents that all shares of Common Stock issued
pursuant to this Agreement will be duly authorized, validly issued, fully-paid
and nonassessable.
Section 3. Repurchase Option and Period of Restriction
During the period beginning with the date of this Agreement and ending
on the third anniversary of such date, and except as provided below, the
Common Stock issued pursuant to this Agreement shall be subject to an option
(the "Repurchase Option") in favor of the Corporation to reacquire such Common
Stock at a price per share equal to the Issue Price. Neither the shares of
Common Stock issued pursuant to this Agreement nor any interest therein shall
be sold, transferred or encumbered until the Repurchase Option may no longer
become exercisable. The Repurchase Option shall become exercisable only upon
the termination of employment of the Employee with the Corporation or any of
its subsidiaries other than as a result of the Employee's death or permanent
and total disability.
Section 4. Exercise of the Repurchase Option
The Repurchase Option shall be exercised in whole or in part by the
Corporation, if at all, by its sending written notice of such exercise to the
Employee at the address specified in or pursuant to Section 10 within 90 days
after the Employee's termination of employment. Such notice, which shall be
sent by registered mail, postage prepaid, shall also set forth the address to
which and the date on which the certificates representing the Common Stock in
respect of which the Repurchase Option is being exercised, duly endorsed for
transfer, should be sent. The date specified shall not be less than ten days
nor more than thirty days from the date of such notice. The Employee or his
successor in interest with respect to such shares shall have no further rights
as a stockholder from and after the date so specified in such notice and
agrees that the Common Stock represented by such certificate shall be deemed
canceled and returned to the treasury of the Corporation and that the Employee
will have no further incidents of ownership, including the right to receive
dividends or other distributions. If the certificates are duly delivered in
accordance with the written notice, the Corporation shall promptly send to the
Employee its check in the amount of the Issue Price for such shares. The
Corporation shall affix to the certificates any required stock transfer
stamps. If the certificates are not so delivered, the Corporation shall
deposit the required amount of payment in an escrow account in the name of the
Employee to be held therein until such certificates are delivered to the
Corporation and the Corporation shall immediately advise its transfer agent of
such action. In addition, if the certificates are not so delivered, the
Employee shall repay to the Corporation any dividends or other distributions
which may have become payable of record on or after the date on which the
Employee was required to deliver the certificates to the Corporation and
agrees to reimburse the Corporation all of its expenses (including attorneys'
fees) incurred in connection with any steps the Corporation may take to cancel
the certificates or to obtain the repayment of such dividends or other
distributions, or both.
Section 5. Legend on Stock Certificates
Every certificate of Common Stock issued pursuant to this Agreement
shall, so long as the restrictions described in Section 3 remain in effect,
bear a legend in substantially the following form:
This certificate and the shares represented hereby are held
subject to the terms of the Contingent Stock Plan of Sealed Air
Corporation which Plan provides that the shares issued pursuant thereto
are subject to an option in favor of Sealed Air Corporation to reacquire
such shares at a price which may be significantly lower than their fair
market value and that neither such shares nor any interest therein may be
sold, transferred or encumbered until the expiration of such option. If
such option is exercised, the holder of the shares represented by this
certificate will have no further rights with respect to such shares and
this certificate will be deemed void. A copy of the Contingent Stock
Plan is available for inspection at the executive offices of Sealed Air
Corporation.
and shall have in effect a stop-transfer order with respect thereto. Upon
expiration of the Repurchase Option, an Employee may surrender to the
Corporation the certificate or certificates representing such shares in
exchange for a new certificate or certificates, free of the above legend.
Section 6. Government and Other Regulations
and Restrictions
The obligations of the Corporation to issue Common Stock upon execution
of this Agreement shall be subject to all applicable laws, rules and
regulations and to such approvals by governmental agencies as may be required.
The Employee consents to the imprinting of the following legend on any
certificate or certificates evidencing such shares and to the entry of a
stop-transfer order with respect thereto in the records of the Corporation's
transfer agent:
The shares represented by this certificate may be sold,
transferred or otherwise disposed of only if registered under the
Securities Act of 1933, as amended, or if in the opinion of counsel to
Sealed Air Corporation, an exemption from registration is available.
Section 7. Registration of Shares
The Corporation shall be under no obligation to register any shares of
Common Stock under the Securities Act of 1933.
Section 8. No Rights in Common Stock
The Employee shall not have any interest in or be entitled to any
voting rights or dividends or other rights or privileges of stockholders of
the Corporation with respect to any shares of Common Stock issued pursuant
to this Agreement until the shares of Common Stock are actually issued to
the Employee and then only from the date the Employee becomes the record
owner thereof.
Section 9. Injunctive Relief
In addition to any other rights or remedies available to the Corporation
as a result of the breach of the Employee's obligations hereunder, the
Corporation shall be entitled to enforcement of such obligations by an
injunction or a decree of specific performance from a court with appropriate
jurisdiction and, in the event that the Corporation is successful in any suit
or proceeding brought or instituted by the Corporation to enforce any of the
provisions of this Agreement or on account of any damages sustained by the
Corporation by reason of the violation by the Employee of any of the terms and
conditions of this Agreement to be performed by the Employee, the Employee
agrees to pay to the Corporation all costs and expenses including attorneys'
fees reasonably incurred by the Corporation.
Section 10. Notices
Any notice which either party hereto may be required or permitted to
give to the other shall be in writing and, except as otherwise required
herein, may be delivered personally or by mail to the Corporation at Park 80
East, Saddle Brook, New Jersey 07663, attention of the Secretary of the
Corporation, or to the Employee at the address set forth below or at such
other address as either party may designate by notice to the other.
Section 11. Subsidiaries
The subsidiaries of the Corporation referred to in this Agreement are
those corporations 50 percent or more of whose outstanding voting stock is
owned or controlled, directly or indirectly, by the Corporation and those
partnerships and joint ventures in which the Corporation owns directly or
indirectly a 50 percent or more interest in the capital account or
earnings.
Section 12. Adjustments
In the event of changes in the Common Stock of the Corporation after the
date of this Agreement by reason of any stock dividend, split-up, combination
of shares, reclassification, recapitalization, merger, consolidation,
reorganization, or liquidation: (a) the Repurchase Option and the
restrictions described in Section 3 and the requirement of a legend on stock
certificates as described in Sections 5 and 6 shall apply to any securities
issued in connection with any such change in respect of Common Stock issued
pursuant to this Agreement, and (b) appropriate adjustments shall be made by
the Committee as to (i) the number of shares to be delivered and the price per
share to be paid by the Corporation upon the exercise, in whole or in part, of
the Repurchase Option, (ii) the number of shares to be delivered and the Issue
Price where such change occurs after the date of this Agreement but before the
date the stock covered by this Agreement is delivered, and (iii) the number
and class of shares available under the Plan in the aggregate.
Section 13. Successors
The provisions of this Agreement shall be binding upon and inure to the
benefit of all successors of the Employee, including, without limitation, his
estate and the executors, administrators or trustees thereof, his heirs and
legatees and any receiver, trustee in bankruptcy or representative of his
creditors.
Section 14. Corporation's Right to Terminate Employment
Nothing contained in this Agreement shall confer upon the Employee a
right to continue in the employ of the Corporation or any of its subsidiaries
or interfere in any way with the right of the Corporation or any of its
subsidiaries to terminate the employment of the Employee at any time, with or
without cause.
Section 15. Payment of Withholding Tax
In the event that, in the opinion of counsel for the Corporation, any
Federal, state or local taxes or any other charges may now or hereafter be
required by law to be withheld by the Corporation or one of its subsidiaries
from the wages or salary of the Employee by reason of this Agreement or
otherwise with respect to the Common Stock governed hereby, the Employee
agrees to pay to the Corporation or such subsidiary, as the case may be, on
five days written demand from the Corporation or such subsidiary an amount
equal to such withholding tax or charge.
Section 16. Action by Corporation
Neither the existence of this Agreement nor the issuance of Common Stock
pursuant hereto shall impair the right of the Corporation or its stockholders
to make or effect any of the adjustments, recapitalizations or other changes
in the Common Stock referred to in Section 12, any change in the Corporation's
business, any issuance of debt obligations or stock by the Corporation or any
grant of options with respect to stock of the Corporation.
Section 17. Interpretation
The Employee agrees that all questions of interpretation and
administration of this Agreement shall be determined by the Committee in
its sole discretion and such determination shall be final, binding and
conclusive upon him. If the Committee is not acting, its functions shall
be performed by the Board of Directors of the Corporation, and each
reference in this Agreement to the Committee shall, in that event, be
deemed to refer to the Board of Directors.
Section 18. Applicable Law
This Agreement shall be governed and construed in accordance with the
laws of the State of Delaware.
Section 19. Terms and Conditions of Contingent Stock Plan of
Sealed Air Corporation
The authority of the Corporation to enter into this Agreement and the
issuance of shares of Common Stock pursuant hereto is derived exclusively from
the Plan and from a resolution of the Committee granting the Employee the
right to purchase shares of Common Stock pursuant to the Plan (the
"Resolution"). In the event that any terms or conditions of this Agreement
are in conflict with any terms or conditions of the Plan or of the Resolution,
the terms and conditions of the Plan or Resolution shall control.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be duly
executed under its corporate seal and the Employee has hereunto set his hand
and seal, all as of the day and year first above written.
SEALED AIR CORPORATION
By
-----------------------------
[Corporate Seal] Vice President - Finance
Attest:
- ----------------------------
Secretary
-----------------------------
Employee
Address of Employee:
-----------------------------
-----------------------------
EXHIBIT 4.6
SECTION 162(M) OFFICER
CONTINGENT STOCK PURCHASE AGREEMENT
AGREEMENT dated as of between SEALED AIR
CORPORATION, a Delaware corporation (the "Corporation"), and
(the "Employee").
The Employee is now an officer of the Corporation and has been selected
by the Compensation Committee (the "Committee") of the Board of Directors of
the Corporation as one who is in a position to make a significant contribution
to the growth and success of the Corporation. Pursuant to the Contingent
Stock Plan of Sealed Air Corporation (the "Plan"), the Corporation desires to
provide an incentive to the Employee which will permit him to share directly
in the growth of the Corporation and to further identify his interests with
those of the stockholders of the Corporation.
NOW, THEREFORE, the Corporation and the Employee mutually agree as
follows:
Section 1. Purchase and Sale of Stock
Subject to the terms and conditions hereinafter set forth, the
Corporation hereby sells to the Employee and the Employee purchases from the
Corporation * * shares of the $0.10 par value Common Stock of the
Corporation ("Common Stock") for a purchase price of $1.00 per share (subject
to adjustment pursuant to Section 7 of the Plan) (the "Issue Price"), receipt
of which the Corporation hereby acknowledges. The Corporation will deliver to
the Employee a certificate representing such shares of Common Stock within a
reasonable time after execution of this Agreement.
Section 2. Representation
The Corporation represents that all shares of Common Stock issued
pursuant to this Agreement will be duly authorized, validly issued, fully-paid
and nonassessable.
Section 3. Repurchase Option and Period of Restriction
During the period beginning on the date of this Agreement and ending on
the third anniversary of such date (the "Option Period"), the Common Stock
issued pursuant to this Agreement shall be subject to an option (the
"Repurchase Option") in favor of the Corporation to reacquire such Common
Stock at a price per share equal to the Issue Price. The Corporation shall
have the right to extend the period during which the Repurchase Option may
become exercisable (the "Extended Option Period") for such number of the
shares (the "Extended Option Shares") covered by this Agreement as shall be
determined as described below. Such right, which may be exercised more than
once, shall be exercised by notice (the "Extension Notice") to the Employee no
later than the end of the Option Period for the first Extended Option Period,
or the then-current Extended Option Period for any subsequent Extended Option
Period, of the number of shares that the Corporation designates as Extended
Option Shares that shall remain subject to the Repurchase Option through the
next Extended Option Period. The number of shares so designated as Extended
Option Shares shall be determined by the Corporation in its sole discretion
based upon its estimate of the number of shares then remaining subject to the
Repurchase Option for which the related compensation expense may exceed the
Corporation's deduction limit under Section 162(m) of the Internal Revenue
Code (based upon the assumption that the Employee is a "covered employee" as
that term is defined in such Section) for the taxable year in which the Option
Period or the then-current Extended Option Period, as the case may be, ends
after estimating all other compensation expected to be paid to the Employee
for such year. The term "Extended Option Period" shall mean, with respect to
the first Extended Option Period, the period ending on March 1 of the taxable
year next following the taxable year in which the Option Period ends or such
later date as the Corporation may designate in the first Extension Notice and,
with respect to each subsequent Extended Option Period, shall mean the period
ending on March 1 of the next succeeding taxable year or such later date as
the Corporation may designate in the applicable Extension Notice. None of the
shares of Common Stock issued pursuant to this Agreement nor any interest
therein shall be sold, transferred or encumbered until the Repurchase Option
as to such shares may no longer become exercisable. The Repurchase Option
shall become exercisable during the Option Period or any Extended Option
Period, as the case may be, upon the termination of employment of the Employee
with the Corporation or any of its subsidiaries other than as a result of the
Employee's death or permanent and total disability.
Section 4. Exercise of the Repurchase Option
The Repurchase Option shall be exercised in whole or in part by the
Corporation, if at all, by its sending written notice of such exercise to
the Employee at the address specified in or pursuant to Section 10 within
90 days after the Employee's termination of employment. Such notice, which
shall be sent by registered mail, postage prepaid, shall also set forth the
address to which and the date on which the certificates representing the
Common Stock in respect of which the Repurchase Option is being exercised,
duly endorsed for transfer, should be sent. The date specified shall not
be less than ten days nor more than thirty days from the date of such
notice. The Employee or his successor in interest with respect to such
shares shall have no further rights as a stockholder from and after the
date so specified in such notice and agrees that the Common Stock
represented by such certificate shall be deemed canceled and returned to
the treasury of the Corporation and that the Employee will have no further
incidents of ownership, including the right to receive dividends or other
distributions. If the certificates are duly delivered in accordance with
the written notice, the Corporation shall promptly send to the Employee its
check in the amount of the Issue Price for such shares. The Corporation
shall affix to the certificates any required stock transfer stamps. If the
certificates are not so delivered, the Corporation shall deposit the
required amount of payment in an escrow account in the name of the Employee
to be held therein until such certificates are delivered to the Corporation
and the Corporation shall immediately advise its transfer agent of such
action. In addition, if the certificates are not so delivered, the
Employee shall repay to the Corporation any dividends or other
distributions which may have become payable of record on or after the date
on which the Employee was required to deliver the certificates to the
Corporation and agrees to reimburse the Corporation all of its expenses
(including attorneys' fees) incurred in connection with any steps the
Corporation may take to cancel the certificates or to obtain the repayment
of such dividends or other distributions, or both.
Section 5. Legend on Stock Certificates
Every certificate of Common Stock issued pursuant to this Agreement
shall, so long as the restrictions described in Section 3 remain in effect as
to any of the shares covered by such certificate, bear a legend in
substantially the following form:
This certificate and the shares represented hereby are held
subject to the terms of the Contingent Stock Plan of Sealed Air
Corporation which Plan provides that the shares issued pursuant
thereto are subject to an option in favor of Sealed Air
Corporation to reacquire such shares at a price which may be
significantly lower than their fair market value and that neither
such shares nor any interest therein may be sold, transferred or
encumbered until the expiration of such option. If such option is
exercised, the holder of the shares represented by this
certificate will have no further rights with respect to such
shares and this certificate will be deemed void. A copy of the
Contingent Stock Plan is available for inspection at the executive
offices of Sealed Air Corporation.
and shall have in effect a stop-transfer order with respect thereto. Upon
expiration of the Repurchase Option as to any of the shares covered by a
certificate of Common Stock issued pursuant to this Agreement, the Employee
may surrender to the Corporation the certificate representing such shares in
exchange for a new certificate or certificates free of such legend for the
shares for which the Repurchase Option has expired, provided that the
Corporation shall issue a certificate or certificates bearing such legend for
any of the shares covered by the surrendered certificate for which the
Repurchase Option has not yet expired.
Section 6. Government and Other Regulations and Restrictions
The obligations of the Corporation to issue Common Stock upon execution
of this Agreement shall be subject to all applicable laws, rules and
regulations and to such approvals by governmental agencies as may be required.
The Employee consents to the imprinting of the following legend on any
certificate or certificates evidencing such shares and to the entry of a
stop-transfer order with respect thereto in the records of the Corporation's
transfer agent:
The shares represented by this certificate may be sold,
transferred or otherwise disposed of only if registered under the
Securities Act of 1933, as amended, or if in the opinion of counsel to
Sealed Air Corporation, an exemption from registration is available.
Section 7. Registration of Shares
The Corporation shall be under no obligation to register any shares of
Common Stock under the Securities Act of 1933.
Section 8. No Rights in Common Stock
The Employee shall not have any interest in or be entitled to any voting
rights or dividends or other rights or privileges of stockholders of the
Corporation with respect to any shares of Common Stock issued pursuant to this
Agreement until the shares of Common Stock are actually issued to the Employee
and then only from the date the Employee becomes the record owner thereof.
Section 9. Injunctive Relief
In addition to any other rights or remedies available to the Corporation
as a result of the breach of the Employee's obligations hereunder, the
Corporation shall be entitled to enforcement of such obligations by an
injunction or a decree of specific performance from a court with appropriate
jurisdiction and, in the event that the Corporation is successful in any suit
or proceeding brought or instituted by the Corporation to enforce any of the
provisions of this Agreement or on account of any damages sustained by the
Corporation by reason of the violation by the Employee of any of the terms and
conditions of this Agreement to be performed by the Employee, the Employee
agrees to pay to the Corporation all costs and expenses including attorneys'
fees reasonably incurred by the Corporation.
Section 10. Notices
Any notice which either party hereto may be required or permitted to
give to the other shall be in writing and, except as otherwise required
herein, may be delivered personally or by mail to the Corporation at Park 80
East, Saddle Brook, New Jersey 07663, attention of the Secretary of the
Corporation, or to the Employee at the address set forth below or at such
other address as either party may designate by notice to the other.
Section 11. Subsidiaries
The subsidiaries of the Corporation referred to in this Agreement are
those corporations 50 percent or more of whose outstanding voting stock is
owned or controlled, directly or indirectly, by the Corporation and those
partnerships and joint ventures in which the Corporation owns directly or
indirectly a 50 percent or more interest in the capital account or earnings.
Section 12. Adjustments
In the event of changes in the Common Stock of the Corporation after the
date of this Agreement by reason of any stock dividend, split-up, combination
of shares, reclassification, recapitalization, merger, consolidation,
reorganization, or liquidation: (a) the Repurchase Option and the
restrictions described in Section 3 and the requirement of a legend on stock
certificates as described in Sections 5 and 6 shall apply to any securities
issued in connection with any such change in respect of Common Stock issued
pursuant to this Agreement, and (b) appropriate adjustments shall be made by
the Committee as to (i) the number of shares to be delivered and the price per
share to be paid by the Corporation upon the exercise, in whole or in part, of
the Repurchase Option, (ii) the number of shares to be delivered and the Issue
Price where such change occurs after the date of this Agreement but before the
date the stock covered by this Agreement is delivered, and (iii) the number
and class of shares available under the Plan in the aggregate.
Section 13. Successors
The provisions of this Agreement shall be binding upon and inure to the
benefit of all successors of the Employee, including, without limitation, his
estate and the executors, administrators or trustees thereof, his heirs and
legatees and any receiver, trustee in bankruptcy or representative of his
creditors.
Section 14. Corporation's Right to Terminate Employment
Nothing contained in this Agreement shall confer upon the Employee a
right to continue in the employ of the Corporation or any of its subsidiaries
or interfere in any way with the right of the Corporation or any of its
subsidiaries to terminate the employment of the Employee at any time, with or
without cause.
Section 15. Payment of Withholding Tax
In the event that, in the opinion of counsel for the Corporation, any
Federal, state or local taxes or any other charges may now or hereafter be
required by law to be withheld by the Corporation or one of its subsidiaries
from the wages or salary of the Employee by reason of this Agreement or
otherwise with respect to the Common Stock governed hereby, the Employee
agrees to pay to the Corporation or such subsidiary, as the case may be, on
five days written demand from the Corporation or such subsidiary an amount
equal to such withholding tax or charge.
Section 16. Action by Corporation
Neither the existence of this Agreement nor the issuance of Common Stock
pursuant hereto shall impair the right of the Corporation or its stockholders
to make or effect any of the adjustments, recapitalizations or other changes
in the Common Stock referred to in Section 12, any change in the Corporation's
business, any issuance of debt obligations or stock by the Corporation or any
grant of options with respect to stock of the Corporation.
Section 17. Interpretation
The Employee agrees that all questions of interpretation and
administration of this Agreement shall be determined by the Committee in its
sole discretion and such determination shall be final, binding and conclusive
upon him. If the Committee is not acting, its functions shall be performed by
the Board of Directors of the Corporation, and each reference
in this Agreement to the Committee shall, in that event, be deemed to refer to
the Board of Directors.
Section 18. Applicable Law
This Agreement shall be governed and construed in accordance with the
laws of the State of Delaware.
Section 19. Terms and Conditions of Contingent Stock Plan of
Sealed Air Corporation
The authority of the Corporation to enter into this Agreement and the
issuance of shares of Common Stock pursuant hereto is derived exclusively from
the Plan and from a resolution of the Committee granting the Employee the
right to purchase shares of Common Stock pursuant to the Plan (the
"Resolution"). In the event that any terms or conditions of this Agreement
are in conflict with any terms or conditions of the Plan or of the Resolution,
the terms and conditions of the Plan or Resolution shall control.
IN WITNESS WHEREOF, the Corporation has caused this Agreement to be duly
executed under its corporate seal and the Employee has hereunto set his hand
and seal, all as of the day and year first above written.
SEALED AIR CORPORATION
By
-----------------------------
[Corporate Seal]
Attest:
- ----------------------------
Secretary
-------------------------------
Employee
Address of Employee:
-------------------------------
-------------------------------
EXHIBIT 5.1
SEALED AIR CORPORATION
PARK 80 EAST/SADDLE BROOK, NEW JERSEY 07663-5291
(201) 791-7600/FAX (201) 703-4205
April 21, 1998
Sealed Air Corporation
Park 80 East
Saddle Brook, N.J. 07663
Dear Sirs:
I am the Assistant General Counsel and Secretary of Sealed Air
Corporation, a Delaware corporation (the "Corporation"), and as such have
represented the Corporation in connection with a Registration Statement on
Form S-8 (the "Registration Statement") of the Corporation providing for the
registration under the Securities Act of 1933, as amended, of 450,450 shares
(the "Shares") of the Corporation's Common Stock, par value $0.10 per share
(the "Common Stock") which may be issued pursuant to the Contingent Stock Plan
of Sealed Air Corporation.
As counsel for the Corporation, in addition to participating in
the preparation of the Registration Statement, I have reviewed the resolutions
adopted by the Board of Directors that authorized the adoption of the Plan and
the issuance of the Shares. I have also reviewed such corporate records,
documents, instruments and certificates and have made such other inquiries as
I have considered necessary in order to furnish a basis for rendering this
opinion.
Based on the foregoing, I am of opinion that the Shares, when
issued in accordance with the terms of the Plan, will be legally issued, fully
paid and nonassessable shares of Common Stock of the Corporation.
I hereby consent to the filing of this opinion with the
Securities and Exchange Commission as Exhibit 5.1 to the Registration
Statement and to the reference to me in Item 5 of the Registration
Statement.
Very truly yours,
/s/ H. Katherine White
---------------------------------------
H. Katherine White
Assistant General Counsel and Secretary
EXHIBIT 23.1
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated February 3, 1998, except for
"Packaging Business Transaction," as discussed in Notes 1 and 3, as to which
the date is March 23, 1998, appearing on page F-3 of the Annual Report on Form
10-K for the year ended December 31, 1997 of Sealed Air Corporation (formerly
named W. R. Grace & Co.) We also consent to the incorporation by reference of
our report on the Financial Statement Schedule, which appears on page F-2 of
the Annual Report on Form 10-K.
/s/ PRICE WATERHOUSE LLP
Ft. Lauderdale, Florida
April 21, 1998
EXHIBIT 23.2
Independent Auditors' Consent
The Board of Directors
Sealed Air Corporation
We consent to incorporation by reference in this registration statement on
Form S-8 of Sealed Air Corporation of our report dated January 20, 1998,
except for note 2 which is as of March 23, 1998, relating to the
consolidated balance sheets of Sealed Air Corporation and subsidiaries as
of December 31, 1997 and 1996, and the related consolidated statements of
earnings, shareholders' equity and cash flows for each of the years in the
three-year period ended December 31, 1997, which report appears in the Form
8-K of Sealed Air Corporation dated March 31, 1998.
/s/ KPMG Peat Marwick LLP
Short Hills, New Jersey
April 21, 1998
