Exhibit 10.24
FORM OF AMENDED AND RESTATED
OPTION UNIT AGREEMENT
1998 GRAHAM PACKAGING HOLDINGS
COMPANY
MANAGEMENT OPTION
PLAN
AMENDED AND RESTATED OPTION
UNIT AGREEMENT
This AMENDED AND RESTATED OPTION
UNIT AGREEMENT (this “Option Agreement”), dated as
of
,
is made by and between Graham Packaging Holdings Company, a
Pennsylvania limited partnership (the “Company”),
and
(the “Grantee”).
Pursuant to the 1998 Graham
Packaging Holdings Company Management Option Plan
(the “Plan”) (a copy of which is attached hereto
and the terms of which are hereby incorporated by reference), the
Company intends to provide incentives to Eligible Individuals by
providing them with opportunities for limited partnership interests
in the Company.
Pursuant to that certain Option Unit
Agreement (the “Old Agreement”), dated February 2,
1998, the Grantee was granted an option to purchase Units of the
Company and the term of such option shall expire on
December 31, 2008.
The Committee has determined that it
is in the best interests of the Company and its equity holders to
extend the term of such option for an additional ten
(10) years.
The Grantee understands and
acknowledges that this Option Agreement amends and restates the Old
Agreement in its entirety and that the Old Agreement is null and
void.
In consideration of the mutual
covenants herein contained and other good and valuable
consideration, receipt of which is hereby acknowledged, the parties
hereto do hereby agree as follows:
Article I.
DEFINITIONS
Whenever capitalized terms are used
in the Option Agreement as defined terms they shall have the
meaning set forth in the Plan or as set forth below, unless the
context clearly indicates to the contrary.
“ Affiliate ”
shall mean, with respect to any Person, (i) any other Person
that directly or indirectly Controls, is Controlled by or is under
common Control with, such Person, or (ii) any director,
officer, partner or employee of such Person or any Person specified
in clause (i) above; provided , that officers,
directors or employees of the Company (or one of its Subsidiaries)
shall be deemed not to be Affiliates of Blackstone for purposes
hereof solely by reason of being officers, directors or employees
of the Company (or one of its Subsidiaries).
“ Blackstone ”
shall mean collectively, Blackstone Capital Partners III Merchant
Banking Fund L.P., Blackstone Offshore Capital Partners III L.P.
and their Affiliates (other than the Company and its
Subsidiaries).
“ Cause ” shall
mean:
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(i)
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Grantee’s
continuing refusal to perform his duties or to follow a lawful
direction of the Company;
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(ii)
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Grantee’s
intentional act or acts of dishonesty which Grantee intended to
result in his personal, more-than-immaterial enrichment;
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(iii)
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Grantee’s
documented willful malfeasance or willful misconduct in connection
with his employment or Grantee’s willful and deliberate
insubordination; or
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(iv)
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Grantee is
convicted of a felony.
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“ Change in Control
” shall have the same meaning as in the Credit Agreement as
of the date hereof.
“ Cost ” shall
mean with respect to each Option Unit, the Exercise Price paid with
respect to such Unit.
“ Credit Agreement
” shall mean the Credit Agreement dated as of October 7,
2004 among the Company, Graham Packaging Company, L.P., GPC
Capital Corp. I, the Lenders Named Therein, Deutsche Bank AG
Cayman Islands Branch, Citigroup Global Markets Inc., Goldman Sachs
Credit Partners, L.P., General Electric Capital Corporation
and Lehman Commercial Paper Inc., and any extensions,
renewals, refinancings or refundings thereof in whole or in
part.
“ Exercise Price
” shall mean the amount that the Grantee must pay to exercise
an Option with respect to one Unit subject to such Option, as
determined in Section 2.2.
“ Financing Default
” shall mean an event which would constitute (or with notice
or lapse of time or both would constitute) an event of default
(which event of default has not been cured or waived) under any of
the following as they may be amended from time to time:
(i) the Credit Agreement; (ii) the Indentures and any
extensions, renewals, refinancings or refundings thereof in whole
or in part; and (iii) any other agreement under which an
amount of indebtedness of the Company or any of its Subsidiaries is
outstanding as of the time of the aforementioned event, and any
extensions, renewals, refinancings or refundings thereof in whole
or in part, (iv) any amendment of, supplement to or other
modification of any of the instruments referred to in
clauses (i) through (iii) above; and (v) any of the
securities issued pursuant to or whose terms are governed by the
terms of any of the agreements set forth in clauses (i)
through (iii) above, and any extensions, renewals,
refinancings or refundings thereof in whole or in part.
“ Good Reason ”
shall mean:
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(i)
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Grantee’s
position is materially and adversely changed (without his consent)
from his position as of the date hereof;
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(ii)
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Grantee is
assigned duties and responsibilities (without his consent) that are
inconsistent in a material respect with the scope of duties and
responsibilities associated with his position as of the date
hereof;
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(iii)
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Grantee is
directly requested by the person to whom the Grantee directly
reports to commit an unethical, dishonest, or illegal act of a
material nature knowing that such act is unethical, dishonest, or
illegal (provided that whether the act cited by Grantee is in fact
unethical or dishonest shall be determined by the Chief Executive
Officer of Graham in his sole discretion);
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(iv)
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Grantee’s
annual salary rate as in effect on the date hereof is reduced;
or
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(v)
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The Company
requires Grantee to be based at an office which is more than 50
miles from Grantee’s assigned office on the date hereof
(other than travel reasonably required in the performance of
Grantee’s responsibilities).
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“ Indentures ”
shall mean the indentures dated as of October 7, 2004 among
Graham Packaging Company, L.P., GPC Capital Corp. I,
the Company, and The Bank of New York.
Article II.
GRANT OF OPTIONS
2.1 Grant of Option . The
Company hereby grants to the Grantee an Option representing the
right to acquire
Units.
2.2 Exercise Price . The
Exercise Price of the Option granted hereunder shall be $
25,789.00 per Unit.
Article III.
EXERCISABILITY OF
OPTIONS
3.1 Exercisability . Subject
to Section 3.2 below, the Option is fully vested and
exercisable as of the date of this Agreement.
3.2 Timing of Exercise . The
Option may only be exercised upon the earlier of (i) a
termination of the Grantee’s service with the Company,
(ii) the occurrence of a Change of Control or a Sale of the
Business (collectively, a “Permissible Exercise
Event”), (iii) the Grantee’s Disability, or
(iv) the Grantee’s death; provided, however, that the
Grantee is an employee or consultant on the date of such Change of
Control or Sale of the Business.
Article IV.
EXERCISE OF THE
OPTION
4.1 Right to Exercise . The
Option granted hereunder may only be exercised by the Grantee
(except that, in the event of his Disability, the Option may be
exercised by his or her legal guardian or legal representative)
during the Grantee’s lifetime and, in the event of the
Grantee’s death, the Option shall be exercisable (subject to
the limitations specified in the Plan) solely by the executor or
administrator of the deceased Grantee’s estate or the
Person(s) to whom the deceased Grantee’s rights under the
Option shall pass by will or the laws of descent and distribution,
to the extent that the Option is exercisable pursuant to this
Agreement.
4.2 Procedure for Exercise
.
(a) The Option may be exercised in
whole or in part with respect to any portion that is exercisable.
To exercise any portion of the Option granted hereunder, the
Grantee (or such other Person who shall be permitted to exercise
the Option as set forth in Section 4.1) must complete, sign
and deliver to the Company (to the attention of the Company’s
Secretary) a notice of exercise substantially in the form attached
hereto as Exhibit A (or in such other form as the Committee may
from time to time adopt and provide to the Grantee)
(the “Exercise Notice”), together with
(i) payment in full of the Exercise Price multiplied by the
number of Units with respect to which the Option is exercised,
(ii) any required agreements described in the Plan, and
(iii) the Option to which the Option Units relate. The
Grantee’s right to exercise the Option shall be subject to
the satisfaction of all conditions set forth in the Exercise
Notice. Payment of the Exercise Price shall be made in cash
(including check, bank draft or money order) or, if subsequent to
an Initial Public Offering, to the extent permitted by the
Committee, (i) through the delivery of irrevocable
instructions to a broker to sell shares of common stock of the
successor corporation obtained upon the exercise of the Option and
to deliver promptly to the Company an amount out of the proceeds of
such Sale equal to the aggregate Exercise Price for the shares
being purchased, or (ii) in shares of common stock of the
successor corporation that have been held for such period of time
as may be required by the Committee in order to avoid
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