BERRY PLASTICS GROUP, INC. NONQUALIFIED STOCK OPTION AGREEMENT
XXXXX
PLASTICS GROUP, INC.
THIS
AGREEMENT, made as of [
], 2006
(the “Grant
Date”),
between Xxxxx Plastics Group, Inc. (the “Company”),
and
[ ]
(the
“Optionee”).
WHEREAS,
the Company has adopted the Xxxxx Plastics Group, Inc. 2006 Equity Incentive
Plan (the “Plan”)
in
order to provide additional incentive to certain employees, officers,
consultants and directors of the Company and its Subsidiaries; and
WHEREAS,
the Committee responsible for administration of the Plan has determined to
grant
an option to the Optionee as provided herein;
NOW,
THEREFORE, the parties hereto agree as follows:
1. Grant
of Option.
1.1 The
Company hereby grants to the Optionee the right and option (the “Option”)
to
purchase all or any part of an aggregate of [ ]
whole
Shares subject to, and in accordance with, the terms and conditions set forth
in
this Agreement and the Plan.
1.2 The
Option is not intended to qualify as an “incentive stock option” within the
meaning of Section 422 of the Code.
1.3 This
Agreement shall be construed in accordance and consistent with, and subject
to,
the Plan (which is incorporated herein by this reference) and, except as
otherwise expressly set forth herein, the capitalized terms used in this
Agreement shall have the definitions set forth in the Plan.
2. Exercise
Price.
The
price
at which the Optionee shall be entitled to purchase Shares upon the exercise
of
the Option; to the extent vested and exercisable, shall be $[
] per
Share.
3. Duration
of Option.
The
Option shall be exercisable to the extent and in the manner provided herein
for
a period of ten (10) years from the Grant Date; provided,
however,
that
the Option may be earlier terminated as set forth herein.
4. Vesting
and Exercisability of Option.
(a) Subject
to the terms and conditions of this Agreement and the Plan, upon the achievement
of the EBITDA Target established for each fiscal year or portion thereof as
set
forth on Exhibit
A
hereto,
the Option shall become vested and exercisable with respect to the percentage
of
the total number of Shares covered by the Option indicated on Exhibit
A
next to
such EBITDA Target as of the date that the Committee determines that such EBITDA
Target
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has
been
achieved (the “Determination Date”). Notwithstanding anything contained in this
Agreement or the Plan to the contrary, in the event that an Optionee’s
employment is terminated other than for Cause, following either (i) the end
of a
fiscal year during the Performance Period, or (ii) the end of the Performance
Period, but, in either case, prior to the Determination Date with respect to
such period, the Optionee will be entitled to vesting, if any (to the extent
EBITDA Targets are achieved), with respect to such period as of the applicable
Determination Date; provided
that
such Determination Date occurs prior to the expiration of the post-termination
exercise period as set forth in Section 6.1 or 6.2 herein, as applicable. In
the
event that the EBITDA Target for any fiscal year or portion thereof in a
Performance Period is not achieved (such fiscal year, a “Missed Year”) and the
EBITDA Target with respect to (x) the immediately preceding fiscal year (except
in the case that the Missed Year is the first fiscal year in the Performance
Period), or (y) the immediately following fiscal year (except in the case that
the Missed Year is the last year in such Performance Period), is exceeded (each
such immediately preceding or immediately following year, an “Excess Year”),
then the excess of EBITDA over the EBITDA Target for such Excess Year or Excess
Years (the excess with respect to an Excess Year, the “Excess EBITDA”) shall be
applied to the Missed Year, and if the application of such Excess EBITDA results
in EBITDA with respect to the Missed Year equal to or in excess of the EBITDA
Target with respect to such Missed Year, then the number of Shares that failed
to vest by reason of the Company’s failure to achieve the EBITDA Target for the
Missed Year shall become vested on the date the Committee determines that such
EBITDA Target with respect to the Missed Year was achieved with the application
of such Excess EBITDA; provided,
with
respect to any Excess Year, Excess EBITDA for such year may only be applied
to
one Missed Year; provided,
further,
that,
for such vesting to occur, the Optionee must remain employed by the Company
or
one of its Subsidiaries for the duration of any such Excess Year and the Missed
Year to which any such Excess EBITDA is applied. The Determination Date for
any
period shall be no later than 30 days following the receipt by the Company
of
audited financial statements for the fiscal year or portion thereof, as
applicable.
(b) The
Option shall become vested and exercisable with respect to the total number
of
Shares remaining unvested, if any, on the ninth anniversary of the Grant Date,
provided,
that
the Optionee remains employed by the Company or one of its Affiliates through
such ninth anniversary.
5. Manner
of Exercise and Payment.
5.1 Subject
to the terms and conditions of this Agreement and the Plan, the Option may
be
exercised by written notice delivered in person or by mail to the Secretary
of
the Company, at its principal executive offices. Such notice shall state that
the Optionee is electing to exercise the Option and the number of Shares in
respect of which the Option is being exercised and shall be signed by the person
or persons exercising the Option. If requested by the Committee, such person
or
persons shall (i) deliver this Agreement to the Secretary of the Company who
shall endorse thereon a notation of such exercise and (ii) provide satisfactory
proof as to the right of such person or persons to exercise the
Option.
5.2 The
notice of exercise described in Section 5.1 hereof shall be accompanied by
a cash payment in an amount equal to the full exercise price for the Shares
in
respect of which the Option is being exercised; provided,
however,
that
[following a Termination
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of
Employment (i) by the Company without Cause or (ii) by the Optionee after the
second anniversary of the Closing following the attainment of (x) age 55 and
(y)
at least ten years of completed service with the Company and/or its
Subsidiaries]1 ,
or
otherwise in the sole discretion of the Committee, payment
of the full exercise price for the Shares in respect of which an Option is
being
exercised may be made in the manner set forth in Section 5.3.
5.3 Subject
to Section 5.2 and to applicable law, payment, in full or in part, of the
exercise price for the Shares in respect of which an Option is being exercised
may be made (a) in the form of unrestricted Shares (by delivery of such Shares
or by attestation) already owned by the Optionee (based on the Fair Market
Value
of Shares on the date the Option is exercised), (b) by delivering a properly
executed exercise notice to the Company, together with a copy of irrevocable
instructions to a broker to deliver promptly to the Company the amount of sale
or loan proceeds necessary to pay the exercise price, and, if requested, the
amount of any federal, state, local or foreign withholding taxes or (c) by
instructing the Committee to withhold a number of such Shares having a Fair
Market Value on the date of exercise equal to the aggregate exercise price
of
such Option.
5.4 Upon
receipt of notice of exercise and full payment for the Shares in respect of
which the Option is being exercised, the Company shall, subject to
Section 15 of the Plan, take such action as may be necessary to effect the
transfer to the Optionee of the number of Shares as to which such exercise
was
effective. Each stock certificate representing Shares issuable upon the exercise
of the Option shall bear such legends as the Company deems
appropriate.
5.5 The
Optionee shall not be deemed to be the holder of, or to have any of the rights
of a holder with respect to, any Shares subject to the Option until (i) the
Option shall have been exercised pursuant to the terms of this Agreement and
the
Optionee shall have paid the full exercise price for the number of Shares in
respect of which the Option was exercised and made arrangements acceptable
to
the Company for the payment of all applicable Withholding Taxes, (ii) the
Company shall have issued and delivered the Shares to the Optionee,
(iii) the Optionee’s name shall have been entered as a shareholder of
record on the books of the Company and (iv) the Optionee has executed such
other
documents as required by the Company to cause the Optionee to be a party to,
and
bound by the terms of, the Stockholders Agreement, dated as of [ ]
among
the Company and such other stockholders party thereto, whereupon the Optionee
shall have full voting and other ownership rights with respect to such
Shares.
6. Termination
of Option.
The
Option shall terminate on the date that is the tenth anniversary of the Grant
Date, unless terminated earlier as follows:
6.1 If
the
employment of the Optionee is terminated for any reason other than the death
or
Disability of the Optionee, other than for Cause or other than by reason of
Redundancy, the portion of the Option that is not then vested and exercisable
shall immediately terminate. To the extent the Option is vested and exercisable
as of the date of such termination of employment, the Option shall remain
exercisable for a period of ninety (90) days following
1
Not
applicable to Boots, Xxxxxx and Xxxxxxx, whose Agreements include, in
lieu of
the bracketed language: “in the event of the Employee’s retirement following the
fourth anniversary of the Closing Date” ( “in the event of the Employee’s
retirement following the third anniversary of the Closing Date”, in the case of
Xxxxxx).
-3-
such
termination of employment, after which time the Option shall automatically
terminate in full.
6.2 If
the
employment of the Optionee is terminated by reason of the death or Disability
of
the Optionee or by reason of Redundancy, the Option shall become immediately
vested and exercisable with respect to an additional 20% of the total Shares
subject to the Option. Any portion of the Option that is not vested and
exercisable after giving effect to the immediately preceding sentence shall
immediately terminate. If the employment of the Optionee is terminated as set
forth in this Section 6.2, to the extent the Option is vested and exercisable
as
of the date of such termination of employment (after giving effect to additional
vesting set forth in this Section 6.2), the Option shall remain exercisable
for
one year following such termination of employment, after which time the Option
shall automatically terminate in full.
6.3 If
the
employment of the Optionee is terminated for Cause, (i) the Option shall
immediately terminate in full whether or not the Option is then vested and
exercisable and (ii) the Company shall have the right to purchase from the
Optionee and the Optionee shall be required to Sell to the Company, at the
election of the Company at any time following such termination of employment,
any of the Shares acquired pursuant to the Option at a per share purchase price
equal to the lesser of (x) the Fair Market Value of a Share at the time of
such
purchase by the Company, or (y) the exercise price set forth in Section 2 above.
The Company’s right of repurchase described herein shall expire on the later of
(i) one year following the date on which the Optionee’s employment is terminated
or (ii) the fifth anniversary of the Grant Date.
6.4 Prior
to
an IPO, upon the termination of the employment or engagement of the Optionee
for
any reason other than Cause, the Company shall have the right to purchase from
such Optionee and the Optionee (or his successor or representative, as the
case
may be) shall be required to Sell to the Company, at the election of the
Company, all Shares acquired by the Optionee pursuant to the exercise of the
Option, at a per Share purchase price equal to the Fair Market Value of a Share
on the date of such purchase; provided,
however,
that,
at the time the Company exercises its right of repurchase described herein,
the
Shares acquired by the Optionee pursuant to the exercise of the Option have
been
held by the Optionee for at least six months. The Company’s right of repurchase
described herein shall expire one year following the later of (i) the date
on
which the Optionee’s employment is terminated or (ii) the date on which the
Shares being purchased by the Company were acquired by the Optionee pursuant
to
the exercise of an Option.
6.5 Prior
to
an IPO, upon the termination of the employment or engagement of the Optionee
by
reason of the death, Disability or Retirement of the Optionee, or by reason
of
Redundancy of the Optionee, the Optionee (or his successor or representative,
as
the case may be) shall have the right to Sell to the Company and the Company
shall be required to purchase from such Optionee (or his successor or
representative, as the case may be), at the election of the Optionee, all Shares
acquired by the Optionee pursuant to the exercise of the Option, at a per Share
purchase price equal to the Fair Market Value of a Share on the date of such
Sale; provided,
however,
that,
at the time the Optionee exercises the put right described herein, the Shares
being Sold have been held by the Optionee for at least six months.
The
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Optionee’s
put right described herein shall expire one year following the date on which
the
Optionee’s employment is terminated.
7. Effect
of Change in Control.
Upon
a
Change in Control the Option shall become vested and exercisable with respect
to
an additional 20% of the total Shares subject to the Option (e.g., if,
immediately prior to a Change in Control, 40% of the total Shares subject to
the
Option are vested, then following the Change in Control, 60% of the total Shares
subject to the Option will have vested). Upon an IRR Event, the immediately
preceding sentence shall not apply, and the Option shall become immediately
vested and exercisable with respect to an additional 40% of the total Shares
subject to the Option (e.g., if, immediately prior to a Change in Control that
would constitute an IRR Event, 40% of the total Shares subject to the Option
are
vested, then following the Change in Control, 80% of the total Shares subject
to
the Option will have vested).
8. Non-Transferability
of Option.
Except
as
determined by the Committee to accommodate the Optionee’s estate planning, the
Option shall not be Sold, transferred or otherwise disposed of other than by
will or by the laws of descent and distribution. During the lifetime of the
Optionee the Option shall be exercisable only by the Optionee.
9. No
Right to Continued Employment.
Nothing
in this Agreement or the Plan shall be interpreted or construed to confer upon
the Optionee any right with respect to continuance of employment by the Company,
nor shall this Agreement or the Plan interfere in any way with the right of
the
Company to terminate the Optionee’s employment at any time.
10. Withholding
of Taxes.
The
Company shall have the right to deduct from any distribution of cash to the
Optionee an amount equal to the Withholding Taxes with respect to the Option.
If
the Optionee is entitled to receive Shares upon exercise of the Option, the
Optionee shall make arrangements acceptable to the Company for the payment
of
the Withholding Taxes prior to the issuance of such Shares.
11. Optionee
Bound by the Plan.
The
Optionee hereby acknowledges receipt of a copy of the Plan and agrees to be
bound by all the terms and provisions thereof.
12. Modification
of Agreement.
This
Agreement may be modified, amended, suspended or terminated, and any terms
or
conditions may be waived, but only by a written instrument executed by the
parties hereto.
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13. Severability.
Should
any provision of this Agreement be held by a court of competent jurisdiction
to
be unenforceable or invalid for any reason, the remaining provisions of this
Agreement shall not be affected by such holding and shall continue in full
force
in accordance with their terms.
14. Governing
Law.
The
validity, interpretation, construction and performance of this Agreement shall
be governed by the laws of the State of Delaware, without giving effect to
the
conflicts of laws principles thereof.
15. Binding
Effect.
This
Agreement shall inure to the benefit of and shall be binding upon the parties
hereto and their respective heirs, legal representatives, successors and
assigns. Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by the Optionee without the prior written consent
of
the Company.
16. Resolution
of Disputes.
Any
dispute or disagreement that may arise under or as a result of, or in any way
relate to, the interpretation, construction or application of this Agreement
shall be determined by the Committee. Any determination made by the Committee
hereunder shall be final, binding and conclusive on the Optionee and the Company
for all purposes.
XXXXX
PLASTICS GROUP, INC.
______________________
______________________
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EXHIBIT
A
EBITDA
Targets
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