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Exhibit
10.1
GRAHAM PACKAGING HOLDINGS
COMPANY 2008 MANAGEMENT
OPTION PLAN OPTION UNIT
AGREEMENT
2004 Option
Exchange
2008 GRAHAM PACKAGING
HOLDINGS COMPANY
MANAGEMENT OPTION
PLAN
OPTION UNIT
AGREEMENT
This OPTION UNIT AGREEMENT
(the “Option Agreement”), dated as of
March 7, 2008 (the “Grant Date”), is
made by and between Graham Packaging Holdings Company, a
Pennsylvania limited partnership (the “Company”),
and [
] (the “Grantee”).
Pursuant to the 2008 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.
The Committee has determined
that it would be in the best interests of the Company and its
stockholders to grant the Option provided for herein to the Grantee
under the Plan.
As a condition of the
accepting this Option, the Grantee agrees to the cancellation and
waiver of any and all options or other rights granted to the
Grantee pursuant to the 2004 Graham Packaging Holdings Company
Management Option Plan (the “2004 Plan”), as set
forth in Section 6.1 of this Option Agreement.
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:
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.
“ Acceleration
Event ” shall mean an event described in
Section 3.2, the occurrence of which shall cause outstanding
Options to become fully vested and exercisable.
“ 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) |
Grantee’s continuing refusal to perform his duties or to
follow a lawful direction of the Company; |
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(ii) |
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) |
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) |
Grantee is convicted of a felony. |
“ 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 Graham Packaging Holdings 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.
“ Exercisable
Percentage ” shall mean, with respect to any Option, the
cumulative percentage of the total number of Units subject to such
Option (measured as of the Grant Date) which a Grantee has the
right to receive upon exercising the Option.
“ 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) |
Grantee’s position is materially and adversely changed
(without his consent) from his position as of the date
hereof; |
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(ii) |
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) |
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
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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) |
Grantee’s annual salary rate as in effect on the date
hereof is reduced; or |
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(v) |
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). |
“ Indentures
” shall mean the indentures dated as of October 7, 2004
among Graham Packaging Company, L.P., GPC Capital
Corp. I, Graham Packaging Holdings Company, and The Bank
of New York.
II.
GRANT OF
OPTIONS
A. Grant of Option .
The Company hereby grants to the Grantee an Option representing the
right to acquire [
] Units.
B. Exercise Price .
The Exercise Price of the Option granted hereunder shall be $ [
] per Unit.
III.
EXERCISABILITY OF
OPTIONS
A. Exercisability .
The Option shall become fully vested and exercisable as described
in this Section 3.1 and in Section 3.2.
The Option shall become fully vested and
exercisable in accordance with the following schedule:
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Date
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Exercisable Percentage |
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| On or after
[ ] |
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25.0 |
% |
| On or after
[ ] |
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25.0 |
% |
| On or after
[ ] |
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25.0 |
% |
| On or after
[ ] |
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25.0 |
% |
B. Acceleration Events
.
(a) Notwithstanding anything
in this Article III to the contrary, the Option shall become fully
vested and exercisable upon the first to occur of the following
Acceleration Events: (i) the Grantee’s termination of
employment on account of death or Disability and (ii) a Change
in Control.
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(b) The Committee may, in its
discretion, vest and accelerate the exercisability of the Option,
in whole or in part, at any time and for any reason.
C. Effect of Termination
of Employment . Any portion of the Option not yet exercisable
at the time of a Grantee’s termination of employment (other
than as provided in Section 3.2(a)(i)), shall not become
exercisable thereafter.
IV.
EXERCISE OF THE
OPTION
A. 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.
B. 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 of Annex I to the Plan (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 com
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