EXHIBIT 4.8
FORM OF ISO AGREEMENT
NONTRANSFERABLE PERFORMANCE-BASED
INCENTIVE STOCK OPTION AGREEMENT
AGREEMENT dated as of October __, 1996,
between BPC HOLDING CORPORATION, a Delaware
corporation (the "Company"), and [NAME] (the
"Optionee," which term as used herein shall be
deemed to include any successor to the Optionee by
will or by the laws of descent and distribution,
unless the context shall otherwise require).
The Optionee is an employee of ▇▇▇▇▇ Plastics Corporation, a
Delaware corporation and wholly-owned subsidiary of the Company ("▇▇▇▇▇"),
or of one of the wholly-owned subsidiaries of ▇▇▇▇▇. The Company desires
to further the growth and success of the Company and its subsidiaries by
enabling the Optionee to acquire shares of Class B Nonvoting Common Stock,
$0.01 par value (the "Class B Stock"), of the Company, thereby increasing
the Optionee's personal interest in such growth and success, and to provide
a means of rewarding outstanding performance by the Optionee. Therefore,
pursuant to the 1996 Stock Option Plan of the Company (the "Plan"), the
Company has, acting through its Board of Directors (the "Board") or, if
established, its Stock Option Committee (the "Committee"), granted to the
Optionee, effective as of the date first set forth above, an option to
purchase the Option Shares at the Option Price (as such terms are defined
below), such option to be for the term and upon the terms and conditions
hereinafter stated.
NOW, THEREFORE, in consideration of the mutual premises and
undertakings hereinafter set forth, the parties hereto agree as follows:
1. OPTION; OPTION PRICE. The Company hereby grants to the
Optionee an option (the "Option") to purchase, upon and subject to the
terms and conditions of this Agreement and the Plan (which are incorporated
by reference herein and which in all cases shall control in the event of
any conflict with the terms, definitions and provisions of this Agreement),
[NUMBER] shares of Class B Stock (the "Option Shares") at the price of
$100.00 per share (the "Option Price"), which Option IS intended to qualify
for Federal income tax purposes as an "incentive stock option" within the
meaning of Section 422 of the Internal Revenue Code of 1986, as amended
(the "Code").
2. TERM. The term (the "Option Term") of the Option shall
commence on the date of this Agreement and shall expire on October _, 2003,
unless such Option shall theretofore have been terminated in accordance
with the terms hereof or the provisions of the Plan.
3. TIME OF EXERCISE. (a) Unless accelerated in the discretion
of the Board (or the Committee, if established) or as otherwise provided
herein, the Option shall become exercisable, if at all, pursuant to the
following terms:
(i) one-tenth of the aggregate number of options issued
hereunder shall become exercisable on each January 1 (beginning with
January 1, 1997) if the Optionee is employed by ▇▇▇▇▇ or one of its
subsidiaries on such date; and
(ii) in addition to the Option Shares that become
exercisable pursuant to (i) above, in the event ▇▇▇▇▇ shall have met
both of the performance goals set forth below (the "Performance
Goals") with respect to any of the fiscal years for 1996, 1997, 1998,
1999 or 2000 (each, a "Fiscal Year"), the Option shall, on and after
January 1 following such Fiscal Year, be exercisable for the
applicable percentage of Option Shares set forth on SCHEDULE I hereto,
provided that such Option Shares shall not be exercisable until after
the determination by the Company as to whether the applicable
Performance Goals have been achieved. The Performance Goals with
respect to any Fiscal Year shall be as follows:
(A) Periodic Actual EBITDA (as defined in Section 3(c))
with respect to such Fiscal Year shall be equal to or greater
than the amounts set forth on SCHEDULE II hereto with respect to
such Fiscal Year; and
(B) Cumulative Actual EBITDA (as defined in
Section 3(c)) with respect to such Fiscal Year shall be equal to
or greater than the amounts set forth on SCHEDULE III hereto with
respect to such Fiscal Year.
(b) The number of Option Shares for which the Option is
exercisable, as determined in accordance with Section 3(a) above, is
intended to be cumulative. The Option shall in no event be exercisable
during the 180-day period (the "Offering Period") immediately following the
effective date of the Registration Statement on Form S-1 filed by the
Company under the Securities Act of 1933, as amended (the "Securities
Act"), for an initial public offering of its Common Stock. Subject to the
provisions of Sections 5 and 9 hereof, shares as to which the Option
becomes exercisable pursuant to the foregoing provisions may be purchased
at any time thereafter prior to the expiration or termination of the
Option.
(c) For purposes of this Agreement, the following terms
shall have the following respective meanings:
(I) "CUMULATIVE ACTUAL EBITDA" shall, with respect to
any Fiscal Year, mean the actual EBITDA (as defined below),
determined on a cumulative basis, for all Fiscal Years preceding
and including such Fiscal Year.
(II) "EBITDA" shall mean the consolidated income of
▇▇▇▇▇ before interest, taxes, depreciation, amortization, gain or
loss on the disposal of assets, acquisition or attempted
acquisition-related expenses and management fees and
miscellaneous costs and expenses payable to First Atlantic
Capital, Ltd. ("FACL") pursuant to the Second Amended and
Restated Management Agreement dated as of June 18, 1996, between
FACL and ▇▇▇▇▇ (determined in accordance with generally accepted
accounting principles, consistently applied, with inventory
valued on a "first-in, first-out" basis).
(III) "PERIODIC ACTUAL EBITDA" shall, with respect to
any Fiscal Year, mean EBITDA for such Fiscal Year.
4. AUTOMATIC TERMINATION OF OPTION. (a) The unexercised
portion of any Option shall automatically terminate and shall become null
and void and be of no further force or effect upon the first to occur of
the following:
(i) the seventh anniversary of the date of this
Agreement;
(ii) the expiration of three months from the date
that the Optionee ceases to be an employee or director of, or
independent consultant to, ▇▇▇▇▇ or any of its subsidiaries
(other than as a result of Involuntary Termination (as defined in
subparagraph (iii) below) or a Termination For Cause (as defined
in subparagraph (iv) below); PROVIDED, HOWEVER, that if the
Optionee shall die during such three-month period, the time of
termination of the unexercised portion of such Option shall be
the expiration of 12 months from the date that such Optionee
ceased to be an employee or director of, or independent
consultant to, ▇▇▇▇▇ or any of its subsidiaries;
(iii) the expiration of 12 months from the date
that the Optionee ceases to be an employee or director of, or
independent consultant to, ▇▇▇▇▇ or any of its subsidiaries, if
such termination is due to such Optionee's death or permanent and
total disability (within the meaning of Section 22(e)(3) of the
Code) (an "Involuntary Termination");
(iv) immediately if the Optionee ceases to be an
employee or director of, or independent consultant to, ▇▇▇▇▇ or
any of its subsidiaries, if such termination is pursuant to a
Termination for Cause, and "Termination for Cause" shall mean any
termination of the Optionee initiated by the Company or any of
its subsidiaries or affiliates as a result of the Optionee's (A)
willful misconduct with respect to the business and affairs of
the Company or any of its subsidiaries or affiliates,
insubordination or willful neglect of duties, including, without
limitation, the Optionee's violation of any material policy of
the Company or any of its subsidiaries or affiliates or (B)
conviction of a crime involving moral turpitude or fraud;
(v) on the effective date of a Corporate
Transaction (as defined in Section 9(b) of the Plan) to which
Section 9(b)(ii) of the Plan (relating to assumptions and
substitutions of Options) does not apply; PROVIDED, HOWEVER, that
an Optionee's right to exercise any Option outstanding prior to
such effective date shall in all events be suspended during the
period commencing 10 days prior to the proposed effective date of
such Corporate Transaction and ending on either the actual
effective date of such Corporate Transaction or upon receipt of
notice from the Company that such Corporate Transaction will not
in fact occur; and
(vi) except to the extent permitted by Section
9(b)(ii) of the Plan, the date on which the Option or any part
thereof or right or privilege relating thereto is transferred
(otherwise than by will or the laws of descent and distribution),
assigned, pledged, hypothecated, attached or otherwise disposed
of by the Optionee.
(b) The Board (or the Committee, if established) shall have
the power to determine what constitutes a Termination for Cause (pursuant
to the definition in Section 4(a)(iv) above), and the date upon which such
Termination For Cause shall occur. All such determinations shall be final
and conclusive and binding upon the Optionee.
(c) The Option shall not be affected by any change of
duties or position of the Optionee (including a transfer to or from ▇▇▇▇▇
or one of its subsidiaries), so long as such Optionee continues to be an
employee or director of, or independent consultant to, ▇▇▇▇▇ or one of its
subsidiaries.
5. PROCEDURE FOR EXERCISE.
(a) The Option may be exercised, from time to time, in
whole or in part (but for the purchase of whole shares only), by delivery
of a written notice (the "Notice") from the Optionee to the Secretary of
the Company, which Notice shall:
(i) state that the Optionee elects to exercise
the Option;
(ii) state that the number of shares with respect
to which the Option is being exercised (the "Acquired Shares");
(iii) state the method of payment for the
Acquired Shares;
(iv) state the date upon which the Optionee
desires to consummate the purchase (which date must be prior to
the termination of such Option and no later than 30 days from the
delivery of such Notice);
(v) include any representations of the Optionee
required pursuant to Section 10(a) of the Plan;
(vi) if the Option is exercised pursuant to
Section 9 hereof by any person other than the Optionee, include
evidence to the satisfaction of the Board (or the Committee, if
established) of the right of such person to exercise the Option;
(vii) include a copy of any election filed by the
Optionee pursuant to Section 83(b) of the Code; and
(viii) include such further provisions consistent
with the Plan as the Board (or the Committee, if established) may
from time to time require.
(b) Payment of the Option Price for the Acquired Shares
shall be made in cash or by personal or certified check.
6. SUBSEQUENT ACQUISITIONS. In the event the Company shall at
any time after the date hereof acquire, directly or indirectly, all or any
substantial portion of another corporation (whether by merger, purchase of
stock or assets or otherwise), the Board of Directors shall have the right
unilaterally to amend this Agreement by making such modifications to the
figures set forth on SCHEDULE II and SCHEDULE III attached hereto, as it
shall in good faith determine to be necessary to take account of such
acquisition, it being understood and agreed that such modifications shall
not affect the exercisability of Option Shares that became exercisable
prior to the implementation of such modifications.
7. NO RIGHTS AS A STOCKHOLDER. The Optionee shall not have any
privileges of a stockholder with respect to any Option Shares until the
date of acceptance by the Company of payment for the Option Shares pursuant
to the Optionee's exercise of the Option.
8. ADJUSTMENTS. (a) Subject to Section 8(b), if, at any time
while the Option is outstanding, the Class B Stock is changed by reason of
a stock split, reverse stock split, stock dividend or recapitalization, or
converted into or exchanged for other securities as a result of a merger,
consolidation or reorganization, the Board (or the Committee, if
established) shall make appropriate adjustments in the number and class of
shares of stock subject to the Option, and the Option Price of the Option.
Each such adjustment shall be subject to the provisions of Sections 9(a)
and (c) of the Plan (or any similar or successor provisions of the Plan
which may be hereafter adopted).
(b) In the event of the dissolution or liquidation of the
Company, or reorganization, merger or consolidation in which the Company is
not the surviving corporation, or a sale of all or substantially all of the
assets of the Company to another person or entity, the provisions of
Sections 9(b) and (c) of the Plan (or any similar or successor provisions
of the Plan which may be hereafter adopted) shall apply.
9. ADDITIONAL PROVISIONS RELATED TO EXERCISE.
(a) The Option shall be exercisable only on such date or
dates, during such period and for such number of shares of Class B Stock as
are set forth in this Agreement.
(b) To exercise the Option, the Optionee shall follow the
procedures set forth in Section 5 hereof. Upon the exercise of the Option
at a time when there is not in effect a registration statement under the
Securities Act of 1933, as amended, relating to the shares of Class B Stock
issuable upon exercise of the Option, the Optionee shall provide the
Company with such representations and warranties as may be required by the
Board (or the Committee, if established) to the effect that the Option
Shares are being acquired for investment and not with a view to the
distribution thereof. No shares of Class B Stock shall be purchased upon
the exercise of the Option unless and until the Company and/or the Optionee
shall have complied with all applicable Federal or state registration,
listing and/or qualification requirements and all other requirements of law
or of any regulatory agencies having jurisdiction.
(c) The Option shall not be affected by any change of
duties or position of the Optionee (including transfer to or from a
subsidiary), so long as the Optionee continues to be an employee of the
Company or one of its subsidiaries. Nothing in the Option granted
hereunder shall confer upon the Optionee any right to continue in the
employ of the Company or any of its subsidiaries or interfere in any way
with the right of the Company or its subsidiaries or the stockholders of
the Company, as the case may be, to terminate the Optionee's employment or
to increase or decrease the Optionee's compensation at any time.
10. RESTRICTION ON TRANSFER. The Option may not be transferred,
pledged, assigned, hypothecated or otherwise disposed of in any way by the
Optionee, except by will or by the laws of descent and distribution, and
may be exercised during the lifetime of the Optionee only by the Optionee.
If the Optionee dies, the Option shall thereafter be exercisable, during
the period specified in Section 4(a)(iii), by his executors or
administrators to the full extent to which the Option was exercisable by
the Optionee at the time of his death. The Option shall not be subject to
execution, attachment or similar process. Any attempted assignment,
transfer, pledge, hypothecation or other disposition of the Option contrary
to the provisions hereof, and the levy of any execution, attachment or
similar process upon the Option, shall be null and void and without effect.
11. RESTRICTIONS IMPOSED ON OPTION SHARES. As a condition
precedent to the Company's obligation to issue the Acquired Shares upon
exercise by the Optionee of the Option, the Optionee shall have agreed in
writing to be bound by and to comply with the provisions of the
Stockholders Agreement applicable to a Stockholder and an Employee
Stockholder, to the extent then in effect. The Option Shares, upon their
issuance, shall be deemed Stock (as defined in the Stockholders Agreement)
for all purposes under the Stockholders Agreement, to the extent then in
effect.
12. RESTRICTIVE LEGEND. In order to reflect the restrictions on
disposition of the shares acquired upon exercise of the Option (the
"Restricted Shares"), all stock certificates representing the Restricted
Shares issued shall, if required by the Board (or the Committee, if
established), have affixed thereto a legend substantially in the following
form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933. THE SHARES HAVE
BEEN ACQUIRED FOR INVESTMENT AND MAY NOT BE PLEDGED,
HYPOTHECATED, SOLD OR TRANSFERRED IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT FOR THE SHARES UNDER THE SECURITIES ACT OF
1933 OR AN OPINION OF COUNSEL TO THE COMPANY THAT SUCH
REGISTRATION IS NOT REQUIRED UNDER SAID ACT."
"IN ADDITION, THE SALE, TRANSFER, ASSIGNMENT, DISTRIBUTION,
PLEDGE, ENCUMBRANCE OR OTHER DISPOSITION OF THE SECURITIES
REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO THE TERMS AND
CONDITIONS OF A STOCKHOLDERS AGREEMENT DATED AS OF JUNE 18, 1996,
AS AMENDED, AMONG BPC HOLDING CORPORATION AND CERTAIN HOLDERS OF
OUTSTANDING CAPITAL STOCK OF SUCH CORPORATION. COPIES OF SUCH
AGREEMENT MAY BE OBTAINED AT NO COST BY WRITTEN REQUEST MADE BY
THE HOLDER OF RECORD OF THIS CERTIFICATE TO THE SECRETARY OF BPC
HOLDING CORPORATION."
13. MISCELLANEOUS.
(A) NOTICES. All notices or other communications which are
required or permitted hereunder shall be in writing and sufficient if
(i) personally delivered or sent by telecopier, sent by nationally-
recognized overnight courier or (ii) sent by registered or certified mail,
postage prepaid, return receipt requested, addressed as follows:
(A) if to the Optionee, to:
[name]
[address]; and
(B) if to the Company, to:
BPC Holding Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇;
with a copy to:
▇'▇▇▇▇▇▇▇▇ Graev & Karabell, LLP
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇;
or to such other address as the party to whom notice is to be given may
have furnished to each other party in writing in accordance herewith. Any
such communication shall be deemed to have been given (i) when delivered,
if personally delivered, sent by telecopier or sent by nationally-
recognized overnight courier and (ii) on the third Business Day (as
hereinafter defined) following the date on which the piece of mail
containing such communication is posted, if sent by mail. As used herein,
"Business Day" means a day that is not a Saturday, Sunday or a day on which
banking institutions in the city to which the notice or communication is to
be sent are not required to be open.
(B) NO WAIVER. No waiver of any breach or condition of
this Agreement shall be deemed to be a waiver of any other or subsequent
breach or condition, whether of like or different nature.
(C) OPTIONEE UNDERTAKING. The Optionee hereby agrees to
take whatever additional actions and execute whatever additional documents
the Company may in its reasonable judgment deem necessary or advisable in
order to carry out or effect one or more of the obligations or restrictions
imposed on the Optionee pursuant to the express provisions of this
Agreement.
(D) MODIFICATION OF RIGHTS. The rights of the Optionee are
subject to modification and termination in certain events as provided in
this Agreement and the Plan.
(E) GOVERNING LAW. This Agreement shall be governed by,
and construed in accordance with, the laws of the State of New York without
giving effect to principles of conflicts of laws.
(F) COUNTERPARTS. This Agreement may be executed in one or
more counterparts, each of which shall be deemed to be an original, but all
of which together shall constitute one and the same instrument.
(G) ENTIRE AGREEMENT. This Agreement and the Plan
constitute the entire agreement between the parties with respect to the
subject matter hereof and thereof, and supersedes all previously written or
oral negotiations, commitments, representations and agreements with respect
thereto.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
BPC HOLDING CORPORATION
By:________________________________
Name:
Title:
THE OPTIONEE:
___________________________________
[NAME]